I thank Mr. Venkatesan for drawing my attention to the article on surrogacy by Amrita Pande and the editorial in Mail Today. The government is apparently planning to bring in new legislation to regulate commercial surrogacy. The Telegraph which says it has a copy of the bill provides some details.
The draft — a copy is with The Telegraph — binds commissioning parents to bear all medical expenses, including insurance, of the surrogate mother while she is carrying the child in her womb.
The draft also says the surrogate mother may “receive monetary compensation from the couple or individual, as the case may be”, but “shall relinquish all parental rights over the child” once it is handed over to the commissioning parents.
…The draft law — called the Assisted Reproductive Technology (Regulation) Bill, 2008 — says the child’s birth certificate shall bear the names of his or her genetic parents.
It says that a woman has to be between 21 and 45 to be a surrogate and free of diseases. No woman, the draft adds, will be allowed to act as a surrogate more than three times, while records of all surrogacy agreements will have to be maintained at the ICMR.
The draft law also envisages a regulatory mechanism comprising a registration authority for ART clinics, with state and central advisory boards over it.
The law would decide the status of the child born through the surrogacy arrangement in the event of custody battles between the commissioning parents and the surrogate mother, Renuka Choudhary said on 25th June.
All this is very similar to the existing guidelines of the ICMR. The latter’s shortcomings which, if this Telegraph report is correct, not surprisingly, persist in the draft bill as well. I would however wait for its contents to be made public before critiquing it.
Pande is right that a law is required to regulate commercial surrogacy particularly to avoid conflict with pre-existing laws (for example, as Raghav Sharma points out, the money paid to the surrogate mother is potentially in violation of sec. 17 of the Hindu Adoptions and Maintenance Act (1956) which bars payment or other reward in consideration of the adoption of any person). Her concern about the final form that such a law might take is perhaps justified though the Health Minister has indicated quite clearly that its primary purpose will be to protect gestational mothers from possible exploitation.
In the last paragraph, she argues that we do not have the luxury of diverting resources towards new reproductive technologies like surrogacy because our women lack basic health care amenities. Yes, but how would a prohibition of surrogacy change any of this? That very question also needs to be asked when she talks about poor women being ‘advised’ to undergo sterilization while richer women are ‘advised’ on ways to conceive their own child. As Richard Posner puts it, ‘How will infertile low-income couples be helped by a law that forbids upper-income couples to hire lower-income surrogates?...It is very difficult to see how people who can’t afford to pay for surrogate arrangements are helped by a law that forbids those who can afford to pay to enter into enforceable contracts of surrogacy.’ (J. Contem. Health & Pub. Policy 22, 1989). The ICMR report , aware of this issue of equitability, also recommends that ‘The setting up of ART clinics in the public sector, which do not exist as of now, must be explored’ (Chapter 7). Whether the bill will make any provision for this remains to be seen.
The Mail Today editorial recommends abrogation of the practice and a return to altruistic surrogacy on the ground that commercialization tends to exploit poorer women. Apart from the same question (vide supra) raised here as well, there are other aspects to be considered. Are the women who provide this service not merely poor but so desperate that they have no other avenues for livelihood and therefore no real choice in the matter at all? Or are they knowingly forgoing less remunerative careers simply because they value the money more than the physical/psychological burden of bearing someone else’s child? Secondly, women who are healthier (and presumably better off by implication) have a competitive advantage over others and are more likely to find ‘employment’ – couples seeking a surrogate prefer their child to be carried by a healthy and well-fed mother – those who are too poor to afford two square meals a day are also likely to be undernourished and therefore less successful in this profession (see this piece in NYT for example; Posner and others have also made this point). The monetary compensation will also ensure better health and livelihood of the gestating mother. A pertinent observation by the California Supreme Court in Johnson v. Calvert may therefore be noted: “Although common sense suggests that women of lesser means serve as surrogate mothers more often than do wealthy women, there has been no proof that surrogacy contracts exploit poor women to any greater degree than economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment.” The question therefore is not whether this practice is exploitative in the absolute but more so than available alternatives. The editorial does not dwell on this issue in sufficient depth to answer these points.