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Monday, October 5, 2015


Need laws to protect surrogate, parents, child

Adi Dubash, a biology professor, and Michael Upshaw, a speech language pathologist, in the United States, have once again brought to focus, the issue of surrogacy in India. Married in 2011, this same-sex couple desired a child through surrogacy in India. However, as per Indian law, same-sex couples with foreign nationality or single foreigners cannot commission surrogacy here; this, while single Indians can seek surrogacy. Lest the issue be reduced to a narrow debate on Indian lawmakers' apparent insensitivity to homosexuality, or even their xenophobia, there is a need to understand the rationale behind such a provision.

Given the innumerable instances where a surrogate child has been abandoned by the intended parents without a thought to the fate of the surrogate mother or the child's imperiled future, stringency is welcome. Legal since 2002, commercial surrogacy in India is plagued by severe misuse. The shocking case of an Australian couple forsaking one of their twin babies born to an Indian surrogate only because they already had a child of the same sex, highlighted the need to urgently streamline this huge but unregulated sector. In 2008 it was left to the Supreme Court to intervene in a case where the commissioning parents were divorced during the pregnancy and the intended mother refused to accept the child.

As per current Indian laws, foreign couples seeking surrogacy have to provide a written undertaking from the country of their origin that a child born through surrogacy would be taken to their country. However, this provision alone has been unable to prevent misuse. A more comprehensive answer is available in the 2010 draft Assisted Reproductive Technology Bill pending in Parliament. Indeed, surrogacy is only a part of the proposed Bill which intends to be a legal umbrella that provides respite to childless couples while protecting surrogate mothers. Surrogacy, however, has been specifically vulnerable to abuse and misuse, compounded by the economics that compel women to become unsuspecting agents of this practice.

Therefore, there is urgent need for a fail-safe legal mechanism that guards the interests of the intended parents and the surrogate child through a monitoring system rigorously implemented. The Bill seeks to set up registered ART banks where interested parties can identify surrogates under legal supervision. This will provide surer financial guarantees to surrogate recruits who are currently routed through private IVF clinics and are, therefore, grossly underpaid. As envisioned in the Bill, professional surrogates would be eligible to register with these banks on the basis of their Aadhar cards which would thereby stem rampant exploitation. Admittedly, these provisions sound fine in principle but may not, in reality, provide instant remedy to all the ills, legal and ethical, that currently plague surrogacy in India. Lack of awareness is a major concern, a surrogate mother often ignorant of the terms of contract signed between involved parties. However, the passage of the draft ART Bill in Parliament would be a good place to begin.


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