Business of babies

Renting wombs is an easy and cheap option in India, where the low cost of services
and lack of regulation are attracting foreigners and NRIs to sperm banks and
surrogate mothers, writes Anil Malhotra

AFTER business process, knowledge process and legal process outsourcing, genetic pool banks are the latest outsourcing industry from India. Would-be parents from the Indian diaspora in the US, the UK and Canada, and foreigners from Malaysia, the UAE, Afghanistan, Indonesia, Uzbekistan and Pakistan, besides Nepal, are descending on sperm banks and in-vitro fertilisation (IVF) centres in India, looking for South Asian genetic traits of perfect sperm donors.

Equally, renting wombs is another easy and cheap option in India. Relatively low cost of medical services, easy availability of surrogate wombs, abundant choices of donors with similar racial attributes and lack of any law to regulate these practices are attracting both foreigners and NRIs to sperm banks and surrogate mothers to this country.

India, surreptitiously, has become a booming centre of a fertility market with its ‘reproductive tourism’ industry reportedly estimated at Rs 25,000 crore today. Clinically called assisted reproductive technology (ART), it has been in vogue in India since 1978, and today an estimated two lakh clinics across the country offer artificial insemination, IVF and surrogacy. So much so, in the recent decision of the Supreme Court on September 29 in baby Manji Yamada’s case, it was observed that "commercial surrogacy reaching industry proportions is sometimes referred to by the emotionally charged and potentially offensive terms wombs for rent, outsourced pregnancies or baby farms". It is presumably considered legitimate because no Indian law prohibits surrogacy. But then, as a retort, no law permits surrogacy either. However, the changing face of law is now going to usher in a new rent-a-womb law as India is set to be the only country in the world to legalise commercial surrogacy.

The complicated case of Japanese baby Manji born to an Indian surrogate mother with IVF technology upon fertilisation of her Japanese parents’ eggs and sperms in Tokyo and the embryo being implanted in Ahmedabad, triggered off complex knotty issues. The Japanese biological parents divorced and the mother disowned the infant. Under, the Guardians and Wards Act, 1890 (GWA), a single father cannot adopt a girl child and since he is only the biological father. The girl’s legitimacy will have to be proved. The grandmother of the infant petitioned the Supreme Court challenging the directions given by the Rajasthan High Court relating to production and custody of baby Manji Yamada.

Her request to the apex court for permission for the infant to travel with her and for issuance of a passport under consideration with the Central Government has been directed to be disposed of expeditiously. A pandora’s box has opened with a floodgate of questions and issues related to ethics and legality surrounding surrogacy with Japanese baby Manji’s case.

In the absence of any law to govern surrogacy, the Indian Council of Medical Research (ICMR) issued guidelines in 2005 to check the malpractices of ART. Silent on major issues and being non-statutory, they lack teeth and are often violated. Exploitation, extortion and ethical abuses in surrogacy trafficking are rampant, go undeterred, and surrogate mothers are misused with impunity. Surrogacy in the UK, the US and Australia costs more than $ 50,000, whereas advertisements on websites in India give varying costs in the range of $ 10,000, and offer egg donors and surrogate mothers. It is a free trading market.

At a time when the world’s first test-tube baby Louise Brown, born in 1978 in the UK, has now herself become a mother, and high profile international adoptions by celebrities like Madonna and Angelina Jolie have glorified the issue, India does not lag behind. Sushmita Sen inspires single women both in India and abroad to adopt children, breaking conventional taboos and age-old practices. Resultantly, orphan girls are finding mothers in India and abroad.

Genuine adoptive foreign and NRI would-be parents, too, are pitted against an insurmountable wall. Child adoption in India is a complicated issue. It is over-burdened with knotty legal processes and complicated lengthy procedures for those who want to give a new home and a new life to reported 12 million Indian orphans. Even though the Constitution ordains it to be a sovereign, socialist, secular, democratic republic, 60 years of Independence have not given a comprehensive adoption law applicable to all its citizens, irrespective of the religion they profess or the country they live in as NRIs, PIOs or OCIs. Resultantly, those who cannot by law adopt and can be appointed only as guardians under personal Indian laws, turn to options of IVF clinics or rent surrogate wombs. It is in this perspective that India now needs to adopt another law to turn to actual reality dreams of those who live abroad rather than turning to unhappy and sometimes unethical practices.

Technology has overtaken law. Time is now ripe for Indian laws also to legitimise adoptions. Society has engineered changes. Indians, whether NRIs, OCIs or PIOs, are all Indians and must get the first benefit of adopting Indian children.

In a phenomenal exercise to legalise commercial surrogacy, the Assisted Reproductive Technology (Regulation) Bill & Rules, 2008, a draft Bill prepared by a 15-member committee, including experts from the ICMR, medical specialists and other experts from the Ministry of Health and Family Welfare, has been posted online recently for a feedback. This 135-page document is a unique proposed law to be put before Parliament in the forthcoming winter session. Abetting surrogacy, it legalises commercial surrogacy, stating that the surrogate mother may receive monetary compensation and will relinquish all parental rights. Single parents can also have children using a surrogate mother. Foreigners, upon registration with their embassies, can seek surrogate arrangements.

Before the law is put on the anvil, it needs a serious debate. Ethically, should women be paid for being surrogate mothers? Can the rights of women and children be bartered? If the arrangements fall foul, will it amount to adultery? Is the new law a compromise in surpassing complicated Indian adoption procedures? These are only some questions which need to be answered before we drape the new law.

HOME