What Are The Surrogacy Laws in India?
Bollywood producer-director Karan Johar became the single parent to twins, a boy and a girl, through surrogacy on February 7, 2017. The twins, Yash and Roohi, were born at Masrani hospital. In-vitro fertilisation (IVF) specialist Dr. Jatin Shah, who runs a clinic on Grant Road, Mumbai carried out the procedure.
Incidentally, Bollywood actor Tusshar Kapoor also became a single parent in June, 2016, through in-vitro fertilisation and surrogacy. In June 2013, actor Shah Rukh Khan’s third child was born with the help of a surrogate mother at the same hospital. In case of both Karan Johar and Tusshar Kapoor, while the sperm came from them, the eggs belonged to a donor.
What is Surrogacy and Surrogate Mother?
Surrogacy is when another woman carries and gives birth to a baby for the couple who want to have a child. Surrogacy can be of two types: full and partial.
Also known as ‘Host’ or ‘Gestational’, full surrogacy is when an embryo is planted in the womb of a surrogate mother. The embryo can be created by any of the following methods:
- The eggs and the sperms both belong to the intended parents.
- A donated egg is fertilised with the sperm of the intended father.
- When the embryo is created by using both donor eggs and sperms.
Also known ‘Straight’ or ‘Traditional’, partial surrogacy involves artificial insemination or intrauterine insemination using the sperm from the intended father and an egg from the surrogate.
Surrogate Laws in India
India, thanks to the low-cost factor of the surrogacy procedure here, had fast emerged as a leader in international surrogacy and thus, had been in the forefront in the fertility tourism. The legal environment had been favourable with surrogacy having been made legal in 2002, by the guidelines laid out by the Indian Council of Medical Research (ICMR). In fact in 2008, the Supreme Court while ruling a case of surrogacy had made commercial surrogacy permissible. Surrogacy business in India is worth more than US$400 million with more than 3,000 fertility clinics all over the country.
However, in view of Tusshar Kapoor opting to become a single parent through surrogacy, the central government decided to frame new guidelines for the surrogacy segment of infertility treatment. As per the guidelines of the new proposed bill, Karan Johar could be among the last of single men (or women) who can do so. According to the bill passed by the Union Cabinet in August last year, single men, women and gay couples are banned from opting for surrogacy. The features Surrogacy (Regulation) Bill, 2016, introduced by Union Health Minister J P Nadda, are as following:
- As per the draft bill, commercial surrogacy is banned. Any payment to a woman opting to be a surrogate mother is prohibited.
- Surrogacy for singles, foreigners and persons of Indian origin is also banned as per the new proposed bill.
- Only a blood relative aged 25 to 35 years can become a surrogate.
- The woman opting to become a surrogate mother should be married and with a child of her own.
- The draft Bill also bans egg donation.
- In other words, surrogacy will be allowed only in an altruistic form and there will be no monetary benefits for the surrogate mother.
In January, the Rajya Sabha chairman referred the Bill to the Parliamentary Standing Committee on health and asked it to submit its report within three months. The bill is currently pending with the committee. Ninety-five percent of the doctors have discontinued with the surrogacy procedures for single men and women after the draft Bill was passed last year.
Pitfalls of the New Bill on Surrogacy
The new bill will all but make surrogacy disappear from India. According to doctors practising the procedure, a large percentage of surrogacy is medically intended, while cases of single men or women are negligible. The limitations in the bill will not only make it impossible for singles and homosexuals to become parents, but difficult for heterosexual couples with infertility issues to have children through surrogacy.
The clause of only blood relative and that too, between the age of 25 and 35, allowed to be a surrogate mother will indeed make it impossible for heterosexual couples with infertility issues to use this procedure to become parents.
Since 2002 until today, while foreigners were making the most of the favourable legal environment regarding surrogacy in India, now Indian couples as well as singles and homosexuals will be forced to venture out of the country, especially the United States of America, where it is legal to seek surrogacy procedure. The middle class population will be worst affected as they may not be able to afford the procedure abroad.
According to Dr. Nayana Patel, a surrogacy specialist from Anand, Gujarat, “India had an opportunity to be a world leader in this field. Instead, the government has taken a regressive step with the draconian law.”
The proposed bill will also have further negative consequences such as emotional blackmail within families, as well as an unregulated black market in surrogacy.
Dr. Hrishikesh Pai, Secretary General, Indian Society for Assisted Reproduction (ISAR), said they were in process of submitting a representation to the parliamentary committee. “We need to arrive at a consensus and come out with a good law,” said Dr. Pai.
Adoption Instead of Surrogacy?
As per statistics, till 2016 there are 50,000 adoptable orphans in India. Maybe the new bill proposed by the Union Ministry will encourage economically viable heterosexual couples, singles and homosexuals to opt for adoption of orphans. Instead of bringing a new life into this world why not give a new life to the children who have no one.