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Wednesday, December 3, 2014

Surrogacy in the shadows

Two decades after registering the first surrogate delivery in the country, Chennai is emerging as a hub for couples seeking a womb on rent. Fuelling this growth are the city's healthcare infrastructure and proliferating fertility clinics. In a series, TOI explores various facets of this growing industry - speaking to doctors and surrogate moms, looking at the legalities, and analysing issues of health and technology

K Viji, 28, signs one page after another of the huge sheaf of papers kept in front of her without asking any questions. "I just agreed to be the surrogate mother for a couple who is paying me money, to send my kids to school. I do not want to ask any questions. What if they get upset and pick someone else," she asks with a wideeyed expression. When asked what would happen if the couple leaves with the baby but without paying her, pat comes the reply: "They desperately want a baby. Why would they cheat?" India being the hub of commercial surrogacy, one would think the government would have set a legislative framework in place, making the concept and its implications clear to all those involved. However, a majority of surrogacy cases right now are governed not by law but by faith, the contracts being seen as a mere show of legalese.

"Though India is the choice destination for surrogate mothers, we have just guidelines and no law to govern surrogacy. The closest to a legal framework that aims at regulating surrogacy is the Indian Council of Medical Research's 2008 draft -Assisted Reproductive Technology (Regulation) Bill and Rules 2008 - which tries to address foreseeable complexities. But the bill has been pending for six years now,"said Hari G Subramaniam of Indian Surrogacy Law Center.

The ART Bill lays down that medical expenses for the surrogate mom should be borne by the commissioning parents.

It mandates medical insurance for her and makes compensation the responsibility of the couple. In order to regulate the commercial nature of the practice, it proposes to stop clinics that perform the procedures from supplying and taking care of surrogate moms themselves.

"The ART Bill makes it compulsory for prospective parents to carry proof that an infant born to a surrogate mother will have automatic citizenship in their home countries," said infertility specialist Dr Kamala Selvaraj. Surrogacy arrangements in India have been fraught with chaos with cases reaching the doorsteps of courts, mostly regarding surrogate babies being denied citizenship in the countries the commissioning parents come from.

The Bill also envisages an obligation on the commissioning parents to accept the child even if there is any abnormality, surrendering of all rights by surrogate mothers and the birth certificate having the name of the genetic parents.

"This would ensure commissioning parents do not abandon a baby and also strips the surrogate mother of rights to claim the baby after delivering it," said Dr Kamala.

Surrogacy in India is clearly still on shaky legal ground but in the absence of a law, experts quote Contract Act, Guardians and Wards Act 1890 and Civil Procedure Code procedure, said advocate M Antony Selvaraj, chairman of All India Jurists Association. "Surrogacy agreements are now treated like any other contracts and principles of the Indian Contract Act 1872 and these contracts are valid documents," he said.

Any new law brought in to govern the industry should have provisions for a surrogacy tribunal or court to handle issue arising out of contracts, he says. To avoid confusion, Hari says the commissioning couples should approach registered ART banks and not private IVF clinics, as is currently the case."This will address a lot of malpractices by private banks. Once the bill is passed, the margin of errors would reduce significantly," he said.


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