Judiciary Lays Down the Law Again!

No Human Embryos, Please

The Supreme Court on 14 October 2015 suggested to the government to put import of human embryos on hold as India has become an international hub for commercial surrogacy.

Agreeing with the petitioner, advocate Jayashree Wad’s contention that surrogacy was at least a $445 million annual business, a bench of justice Ranjan Gogoi and justice NV Ramana said there should be a law to regulate the practice.

The DGFT replied by banning import altogether instead of regulating it. An order to this effect was issued on 27 October. Import is now allowed only for research. In the previous dispensation, NOC from ICMR was required. The result is that surrogacy will go underground. The women will go abroad for embryo implantation. The incubation period of nine months and subsequent delivery is a matter of convenience left the embryo owner and the surrogate mother!

A Bill to regulate commercial surrogacy is at a consultative stage and it may take three months before it is referred to the Union Cabinet.

The issue of a child’s parentage in such a relationship will be settled in the draft surrogacy bill – The Assisted Reproductive Techniques (Regulation) Bill 2014 – which is being prepared in consultation with the law ministry. The bill has been uploaded on the ministry’s website for public responses.

“Moral and ethical issued are involved. Just we are struggling to know what to do. It is the primary duty of legislature. Unfortunately there is no response from the government or legislation on the issue. Now a situation has arisen where we are issuing directions on all issues which are in the domain of the executive,” the court said.

India is amongst a handful of countries (Georgia, Russia, Thailand and Ukraine included) to have legalized commercial surrogacy. It is the preferred destination for “fertility tourists”, owing to the availability of skilled doctors, ineffective legal regulation and most importantly, availability of women willing to be surrogates for, relatively, a very low cost. There are over a thousand surrogacy centres in India, and the business is estimated at around $2.3 billion. Many see nothing wrong with India’s booming baby market. Couples who are unable to conceive are able to experience the joy of a baby of their own, and surrogate mothers are paid the full amount at the end of the 9-month period once the baby/babies are safely delivered.

When seen in this light, India’s rent-a-womb industry raises troubling questions on exploitation.

The Assisted Reproductive Technology (Regulation) Bill 2008 proposes to regulate the surrogacy industry by imposing an age bracket of 21-35 years for a surrogate mother, making the consent of the spouse for married women compulsory, and prohibiting implantation cycles of more than 3 times per couple, amongst other measures. 

However, larger questions seem to never have been asked. Can the rights of women be sold and purchased? What are the emotional and psychological costs of surrogacy? And most crucially, what does the prevalence of women who are willing to rent their wombs for a few lakh rupees say about an apparently rising global economy and its society?