Debates around Surrogacy Law – CLPR Monthly Talks

June 27, 2016

As part of its Monthly Talk Series the Centre for Law and Policy Research (CLPR), Bangalore on the 24th of June, hosted Ms. Sonali Kusum, a Ph.D. scholar at National Law School of India University, Bangalore for a talk on the legal and ethical issues concerning surrogacy law in India.

Sonali attributed the development of India as an international hub of commercial surrogacy to the National Health Policy, 2002, which included surrogacy within the Assisted Reproductive Technology (ART) treatment. Other factors included the low cost of medical facilities and the large number of women willing to be surrogates as significant factors. Sonali’s focus was on three major issues which are consequent to ART: the legal aspects of the surrogacy agreement; its commercial dimension and the ethical concerns.

Sonali pointed out that the surrogacy contract includes legal terms like breach, compensation and legal notice. The contract is usually read out and explained to the surrogate. The contract lays states that miscarriage, not complying with with medial requirements and being unwilling to continue the pregnancy amount to breaches of the contract. In case of a breach, the money given to the surrogate for every month of the gestation period must be returned. Since most of the surrogates are illiterate, they are unable to grasp the legal implications of the contract.

Sonali criticised the Assisted Reproductive Technologies (Regulation) Bill, 2010 for not including the right to breastfeed which is crucial to the health of the infant. She was also against the barring of certain groups like foreigners, homosexuals and single persons from practicing surrogacy as proposed in the ART (Regulation) Bill, 2014. She emphasized that everyone has the right to privacy and the right to form a family.

Based on her field study, Sonali concluded that the financial incentive offered in the form of payment to the woman was the major driving factor in commercial surrogacy. Poverty leaves women little choice and hence they consent to being subjected to the inherent health risks of surrogacy without legal protection. The surrogates usually end up with only a third or quarter of the amount agreed. Clinics and middlemen take the majority of this money.

On the ethical front, Sonali talked about how the clinics take advantage of the lack of regulation in this area and engage in practices like family balancing. Family balancing is a process by which couples decides how many children they want through the implanting of multiple foetuses in the surrogates; aborting the foetuses as per their choice. This allows for a backdoor to banned practices such as sex selection. Sonali’s field research shows that in Bangalore three to eight embryos are often implanted. In contrast, the Indian Council of Medical Research (ICMR) guidelines allow for a maximum of three.

Comparing commercial prostitution and surrogacy, Sonali noted that both share one similarity; the use of a woman’s private organs by third parties. She suggested that the two can be distinguished by having a provision of reasonable compensation for the surrogate which restricts payment to only medical expenses as practiced in the United Kingdom.

Sonali concluded by raising the issues that need to be addressed: How do we secure social security for the surrogate mother? Is it justified to exclude some couples because of their sexual orientation? Who gets the right to breast-feed? All of these questions need to be addressed by a comprehensive framework regulation on surrogacy.

(This post is authored by Madhulika from NLU Delhi who is currently interning at CLPR.)