Limitations & Legal Boundaries of Fertility Treatments

India, known for its cost-effective ivf treatment and well trained medical practitioners, has already become a paradise in medical tourism especially due to Assisted Reproductive Technology (ART) industry being recognised as a 25,000 crore rupee pot of gold by the Law Commission of India in its detailed 228th Report way back in 2009.

The recent focus by the Government on a long-pending bill to regulate and codify much needed “reproductive tourism” industry in the backdrop of soaring infertility rate (estimated 27 to 30 million infertile couples in India) has attracted the attention of general masses and stakeholders across borders. The Assisted Reproductive Technology (Regulation) Bill, 2014 has now given way to a new Surrogacy Regulation Bill, 2016 by the Government having narrowed down the proposed ART Bill to now solely address and deal with the issues related to “surrogacy”. In a written reply in the Rajya Sabha, minister of state for health Shri Shripad Yesso Naik said, “Yes, to make issues of parentage of children born out of surrogacy, legal and transparent; provisions have been made in the draft surrogacy (regulations) bill, 2016.”

Over the last decade or so, India has become a major destination for foreign couples, given the relatively low cost of In vitro fertilisation (IVF) treatment as well as a negligible regulatory framework to protect the rights of surrogate mothers and the babies. The issue was first brought to the mainstream by a major ruling by the Supreme Court in 2008 in Baby Manji’s case (Japanese Baby) delving into the aspects of such reproductive methods and child rights. The Legislature appraising the situation took the onus to pass an appropriate law and even though two attempts by the legislature (2008 and 2010 bills) have failed, the past one year has witnessed some key developments that might impact the business of India’s ART industry.

The Department of Health Research, an arm of the Union Health Ministry, has issued a circular with a range of directives and effectively banned commercial surrogacy in India. In fact, it also banned the import of a human embryo for non-research purposes and pointed to directions by the Ministry of Home Affairs under which no foreigner would be given visa for availing surrogacy services in India. Such notification came under the light of a Public Interest Litigation (PIL) petition pending in the Supreme Court seeking a ban on commercial surrogacy in India. The Union Government, in response to the notice in the PIL, has filed an affidavit in 2015 stating that the Government seeks to prohibit commercial surrogacy and overseas surrogacy thereby not permitting foreigners to commission surrogacy in India.

The Assisted Reproductive Technology (Regulation) Bill, 2014 seeks to restrict ART services in India to only Overseas Citizen of India (OCIs), People of Indian Origin (PIOs), Non-Resident Indians (NRIs) and foreigner married to an Indian citizen but not foreigners. Even these couples would be subject to certain conditions, including that they “be married and the marriage should have been sustained at least for two years”; they shall be “legally bound to accept the custody of the child or children irrespective of any abnormality that the child or children may have”; etc. Needless to state, even the surrogate mothers would have certain parameters to meet, such as the surrogate must relinquish all parental rights over the child(ren) and she must be required to be an “ever married Indian woman with minimum twenty-three years of age and maximum thirty-five years of age.” among other important factors.

Meanwhile, following the footsteps of its nodal agency in the Centre, the Indian Council of Medical Research (ICMR) issued a circular directing all ART centres, fertility clinics “to halt surrogacy for foreign couples for availing surrogacy services in India” and “not to initiate any surrogacy for foreign intending couples” and directed all ART centres, fertility clinics to provide surrogacy services only to Indian heterosexually married couples. The circular also prohibits such Indians including Overseas citizen of India from commissioning surrogacy in India. Indian Society for Third Party Assisted Reproduction (INSTAR), Indian Society for Assisted Reproduction (ISAR) and Federation of Obstetric and Gynaecological Societies of India (FOGSI), Indian Medical Association (IMA) members have all filed a plea for intervention in the said PIL before the Supreme Court to challenge ICMR circular directing sudden halt of surrogacy services to foreign couples on the ground of being such hasty, undemocratic, non-transparent, pre-empted decision binding on the clinics without any prior intimation, consultation with the concerned stakeholders including the medical bodies. Also, a group of surrogate mothers mostly from Delhi and Gujarat has filed an application for intervention in the same PIL before the Supreme Court challenging the ICMR Circular on the ground of circular being “discriminatory and unreasonable” and contending that “motherhood should not be divided or discriminated on the basis of caste, colour, creed, nationality or citizenship.” Quickly to follow was a group of overseas citizens of India (OCIs) challenging the Central Government notification disallowing them from commissioning surrogacy in India on the ground of discrimination on nationality, residence, citizenship.

Distant from all the contentious issues put forward and multi-party petitioning the court, it is commendable to fill vacuum through this legislation. There have been instances where surrogates have died as a result of complications during pregnancy and cases of babies born with abnormality and couples abandoning them. Unilateral Surrogacy Contracts between surrogate mothers, who are often poor, and the couples structured in a manner that all medical, financial and psychological risks are thrust upon the former. The Government seeks to impose heavy penalties, through new legislation, on couples who refuse to take custody of a surrogate child born with disabilities and prioritises the rights of the surrogate mother.

India definitely needs a proper legislative structure to regulate surrogacy, no doubt, but the present policy intends to differentiate between Indian and foreign parents and excludes homosexual couples as well as single-parents. Such policy decisions may hamper booming surrogacy clinics aimed at the more lucrative foreign market and further endanger both mother and baby by risking quality medical services. Instead, it should take a pragmatic approach and provide for adequate safeguards to protect parties with unequal bargaining power, i.e. newborn babies with a mixed claim of citizenships and surrogate mothers, with added checks and balances to prevent exploitation by foreign couples and the so-called brokers as intermediaries. The beneficiary will be the surrogate mothers and baby, rightly so, but it may surely have an adverse effect on the economics of the concerned industry.

1 Para 1.7, page 11, 228th Law Commission of India Report, available at http://lawcommissionofindia.nic.in/reports/report228.pdf. 
2 Teena Thacker, Assisted Reproductive Technology Bill will only focus on surrogacy, available at http://www.asianage.com/india/assisted-reproductive-technology-bill-will-focus-only-surrogacy-863 
3 PTI, available at http://www.newindianexpress.com/nation/Draft-Surrogacy-Bill-to-Make-Parentage-of-Children-Legal-Government/2016/03/01/article3305043.ece 
4 Ramesh Shankar, Mumbai, available at http://www.pharmabiz.com/NewsDetails.aspx?aid=91582&sid=1 
5 Jayashree Wad vs Union of India , WP (C) no. 95 of 2015
6 PRS Legislative Research, available at http://www.prsindia.org/uploads/media/draft/Draft%20Assisted%20Reproductive%20Technology%20(Regulation)%20Bill,%202014.pdf. 
7 Anuradha Mascarenhas, Surrogacy ban for foreign couples sends ART centres in city in a tizzy, Pune, December 25, 2015 available at http://indianexpress.com/article/cities/pune/surrogacy-ban-for-foreign-couples-sends-artcentres-in-city-in-a-tizzy/#sthash.Xes0f1Ow.dpuf.
8 Nozia Sayyed, Docs move SC against ICMR surrogacy rule, Pune Mirror | Nov 26, 2015, available at http://www.punemirror.in/pune/civic/Docs-move-SC-against-ICMR-surrogacy-rule/articleshow/49926644.cms. 
9 Prabhati Nayak Mishra , Surrogate mothers seek Supreme Court’s intervention, DNA, 26 November 2015, available at http://www.dnaindia.com/india/report-surrogate-mothers-seek-supreme-court-s-intervention- 2149015. 
10 Bhadra Sinha, Overseas Indians challenge govt order on surrogacy, Hindustan Times, New Delhi, Mar 18, 2016 available at http://www.hindustantimes.com/india/overseas-indians-challenge-govt-order-on-surrogacy/story- 1X3k8Ku7YEeYK7FSqlBH3H.html.