Introduction

Soon after the Surrogacy (Regulation) Bill, 2016 (henceforth “the Surrogacy Bill”) was approved by the Cabinet for introduction into Parliament in 2016, it was submitted for review to a Parliamentary Standing Committee on Health and Family Welfare. The report of this committee, The 102nd Report on the Surrogacy (Regulation) Bill, 2016 (henceforth “the Report”) was laid on the table of the Lok Sabha and presented to the Rajya Sabha on August 10, 2017 (1, 2). It contains hearings with stakeholders and witnesses and a review of relevant documents and related legislation. The comments of the Parliamentary Standing Committee (henceforth “the Committee”) are wide ranging and pertinent, seeking to fill the gaps and explain and rationalise the statute. It includes responses from the Department of Health Research.

An analysis of the recommendations of the Committee allows an exploration of some of the ethical, legal, and social implications (ELSI) of surrogacy arrangements in our country, where diverse viewpoints and strong sentiments can encounter difficult ground realities.

Should the Surrogacy Bill be integrated with the Draft Assisted Reproductive Technology (Regulation) Bill, 2014

One of the important comments by the Committee was that the Surrogacy Bill may be superfluous, since most of the proposed regulation around surrogacy was already covered in the Draft Assisted Reproductive Technology (Regulation) Bill, 2014 (henceforth “the ART Bill”) (3).

It is unclear why the ART Bill languished because, since it was first proposed in 2008, and then revised in 2010, 2013, and 2014, each revision attempted to address vilification of the sector at home and abroad (4).

One could speculate that the ART Bill was stalled because it focused more on the regulation of clinics and technological procedures rather than the ethical and social harms arising from its use. It did not address commercial surrogacy, exploitation of surrogates, and commodification of children, which is the focus of the Surrogacy Bill. Concern from civil society was more about permissive guidelines and absent regulations that led to exploitation of Indian surrogates by economically advantaged global commissioning clients in cross-border, third-party reproduction. Not all of these clients were infertile, and many used the unregulated surrogacy market for their aspirational needs (4). Objections were not against the reproductive technology itself but its commercialisation and resultant harms. India suddenly found itself part of the very small group of nations that allow commercial surrogacy. The reputation of being a surrogacy destination was internationally embarrassing for India, especially alongside the criticism it currently faces for human rights violations (5).

Since qualified doctors were present on expert committees and in charge of clinics, one can well ask how they let this happen. Were the stakes so high that professionals refused to acknowledge the possibility of exploitation? The conflict of interest here is undeniable. To overcome this, regulatory bodies need to be guided not only by experts, but by a wider range of stakeholders, as well as by guidelines from other countries. Our experience so far with radio diagnostics and organ donation, and now with assisted reproduction, indicates that the law catches up much later in these contentious areas. We may need an independent body to evaluate the ELSI in medical and other biological sciences in order to anticipate social consequences and harms along with benefits of new technologies (6).

If the ART Bill and the Surrogacy Bill are to be merged, prohibition of commercial surrogacy must be clearly enunciated. This is imperative to send the right message to our citizens and to the world and ensure that the market for surrogates, including sourcing agents, touts, and surrogate hostels, is deemed illegal. Altruistic surrogacy and modalities of compensation can be addressed subsequently.

At 5.93, the Report says that regulation of all ART clinics is a prerequisite for the Surrogacy Bill to be effective; the ART Bill could complement this Bill in regulating all the structures involved in reproductive medicine and surrogacy.

Recommendation to replace “altruistic” with “compensated”

The Committee recommended the replacement of the word “altruistic” (in clause 2 [b] of the Surrogacy Bill) with the word “compensated”. The arguments put forward by the Committee at 5.22 in the Report against use of the term “altruistic” express cynicism about the possibility that a surrogate would commit to pregnancy, childbirth, and the risks involved merely from an altruistic sense of compassion and maternal empathy. While the commitment and risks in surrogacy can be far greater than altruistic donation of a kidney or blood donation, it is important not to lose the emphasis on the component of altruistic motivation.

Altruism is the principle or practice of unselfish concern for the welfare of others (7). It is accepted traditionally and culturally as a virtue endorsed by religious and secular world views. There are many acts of sacrifice, heroism, and generosity we encounter within the family structure or even within communities that, while rare, surely exist. The nature of human relationships and experiences allows for unusual acts of giving and sharing that cannot always be rationalised (8). It is possible that a surrogate can be motivated to assist an infertile couple to have a genetic child from a sense of empathy or concern, particularly a known person or friend. When she does, her welfare certainly deserves protection through regulations and insurance, ensuring standards of care and safety and covering all expenses and costs. However, this compensation mechanism must not detract from the voluntary altruistic nature of the action and its primary intention.

Removal of the word “altruistic” mitigates the act and the message it sends about the value and respect of a woman’s life and body. The use of the word “compensated” undermines the altruistic aspect in volunteering to be a surrogate. It belittles a moral decision and human undertaking that cannot only be evaluated in terms of money or compensation. It is precisely this reduction to monetary terms that is considered degrading in the commercial trade in organs and surrogacy, an important reason why they are banned in most countries (9). Retaining the term “altruistic” reminds all parties of the selfless nature of such acts, even when compensation mechanisms are in place.

The fact that altruism is more often encountered within families (10) may have prompted the recommendation that only close relatives act as surrogates. The Committee presents good reasons why this could lead to coercion and may not be realistic, making the case that unrelated surrogates also be considered. This is reasonable, and the appropriate authority could evaluate the motivation of the unrelated surrogate along the lines of the Transplantation of Human Organs Act, 1994 to ensure that there is no coercion or commercial inducement corrupting the surrogate’s decision (11).

There can never be a satisfactory price placed on a human organ or body process like pregnancy. It flows from the unique status of the human being, scripted through the frameworks of religious beliefs, human rights, and even constitutional rights. Compensation is merely an effort at mitigating the cost and discomfort of an altruistic action. Clause 5.25 of the Report says that the government should fix compensation and it should not be negotiable. Indeed, it will be an onerous task to create algorithms of suitable compensations for the duration, difficulties, and discomforts of surrogate pregnancy. Will the Workmen’s Compensation (Amendment) Act, 2009 or Maternity Benefit (Amendment) Act, 2017 be a suitable basis for calculation? How can one be fairly compensated for the risks and discomforts, mental agony, family deprivations, and physical changes? This calculation in terms of loss of productive days and family hardship is going to be a challenge. Again, it becomes another debate as to why the element of altruism cannot be denied, more so in the case of unrelated surrogates (12, 13).

Emphasis on the altruism component will ensure that surrogacy is not viewed as a form of employment for women. Compensation, while necessary, could alter the dynamics of the surrogacy agreement; it should be neither coercive nor exploitative. Could an upper limit be placed on compensation so that it is not an inducement? In a country like India, where corruption goes unchecked and vulnerable women live close to the poverty line, it would be crucial to scrutinise the terms and circumstances of every surrogacy agreement to ensure there is no commercial incentive. The experience of government authorities with scrutiny of organ donors will be valuable here. A national registry of pre-screened and counseled volunteer surrogates could also mitigate this risk.

Are surrogacy agreements enforceable?

The Committee has strongly urged at 6.6 in the Report that the surrogacy agreement should be comprehensive and legally binding. This presents difficulties because of the very nature of the product and services that the contract or agreement describes. One of the reasons that commercial surrogacy is banned in most countries is the questionable validity and enforcement of such a contract.

According to Section 23 of the Indian Contract Act, 1872, “The consideration or object of an agreement is lawful unless it is forbidden by law…or would defeat the provisions of any law…or involves…injury to a person or property of another, or the Court regards it as immoral or opposed to public policy.” (14) Pregnancy, hormonal manipulation, and delivery present the possibility of injury to the surrogate. Further, it could be deemed offensive to public sentiment and morality that a woman’s body is used in service to fulfil the aspirations of another party, commercialising the reproductive function of a human being. Also, in a country with laws against inequalities and injustices to women, surrogacy agreements involving this vulnerable population could be opposed to public policy, as would the indeterminate fate of children conceived through surrogacy and assigned parentage after birth. For these reasons, the legitimacy of such contracts would be questionable.

These agreements are also difficult to enforce. If the surrogate changes her mind and refuses to continue with the pregnancy, can she be forced to go through with it? Similarly, it may not be morally right to wrench the child away from the surrogate if she refuses to hand over the child after birth. In another scenario, it may not be in the best interest of the child to force the intended parents to accept responsibility of the child if they refuse to accept it, irrespective of their grounds for refusal. Further, the object of the contract is a human child, a situation that is ethically problematic, legally questionable, and morally repugnant.

For these reasons, surrogacy contracts are unconscionable and unenforceable and would fall apart if tested by law. A tripartite understanding is the best one can expect, with signed consent of all parties involved: the surrogate, the clinic, and the intended parent(s). An agreement of this kind can be recommended as long as all parties understand its legal limitations. It could describe roles and obligations, possible limitations to autonomy of parties, and compensations and expenses, bringing transparency and specifics into the arrangement.

Given the limited awareness, empowerment, and education of women in this country and the lack of clear understanding about the limits of the law in these contentious areas, there is need for caution in navigating this landscape.

Protection of the surrogate

Most of the recommendations of the Committee have been directed at protection of the rights and interests of the surrogate. Given the existing infertility burden and the miniscule fraction that would require surrogacy, the population of surrogates at risk is small. With the lure of commercial benefits removed and a ban on access to foreigners, the numbers recede further. The Surrogacy Bill should bring the problem down to a manageable size that, comprehensively addressed through insurance and compensation, should lead to adequate protection of the surrogate. A national database of volunteer surrogates, as recommended at 5.134 in the Report, allows for pre-screening and counselling, collating complete information, and building an understanding that can further protect the surrogate. However, the Draft ART Bill 2010 says in Chapter 5, No. 26(1), that the ART banks will “provide… surrogates”. This is a contradiction, among many others, that will need to be addressed if the ART Bill and Surrogacy Bill are to be successfully merged. According to the International Federation of Gynecology and Obstetrics (FIGO) “surrogate arrangements should not be commercial and are best arranged by non-profit agencies” (15: p 15).

At 5.26, the Report questions the choice of surrogacy as a profession or a way out of poverty. Is it right for a surrogate to earn in this way just because other avenues are less remunerative? Article 21 of the Constitution enshrines the right to life and livelihood in a dignified manner, while childbearing as a livelihood is risky and dehumanising. Education and vocational training can be offered to all empanelled surrogates to provide wider life choices. The plight of these women should serve to alert the government to its responsibility for education and employment of women and other neglected sub-sections of society.

The Report has suggested at 5.52 that precise specialist designation, qualifications, and experience be described for staff at infertility clinics. Since the Clinical Establishments (Registration and Regulation) Act, 2010 is not applicable in many states, this requirement is important to protect patients and surrogates attending these clinics. The ART Bill is silent on the qualifications and experience of professionals and employees in ART clinics.

Protection of the surrogate through insurance is mentioned at 5.60 in the Report. Specific insurance products need to be designed for the purpose of surrogacy, given its unique risks and complications. It has to be clarified if leave and maternity benefits accrue to both the surrogate and the intended parent, and to what extent. It is unclear if employers would recognise surrogacy as grounds for maternity leave. Compensation alone may be insufficient and must be complemented by access to health services and health insurance.

Information about health risks needs to be comprehensive, and the Report suggests (at 5.120) a neutral “competent authority” to obtain signed consent from all parties: the surrogate, her husband, and the legal parents. Placing limits on the number of embryos implanted (5.125) and the number of cycles as well as on pregnancies (5.86) can mitigate risks. According to the FIGO recommendations, “all efforts must be taken to reduce the chance of multiple pregnancies with the ensuing risk to the surrogate mother and future babies.” (15: p 15) The ART Bill is unclear on this, and proper monitoring and documentation of procedures would be required. The surrogate should be allowed to stay at her home and care for her family and not be incarcerated in surrogacy hostels. This may require adequate counselling of husbands and children, along with nutrition and hygiene advice and diet supplements at home.

At 5.97, the Report clarifies that the Medical Termination of Pregnancy Act, 1971 holds for surrogate pregnancy and the welfare of the surrogate is paramount. Some situations, however, may be problematic. If the surrogate changes her mind, can she request termination of pregnancy under the Act? How is her right weighed against that of the legal parents who are genetically related to the child and financially committed? If abnormalities in the child are detected late, after 20 weeks, can the surrogate be forced to terminate the pregnancy even at risk to her health?

Protection of the surrogate child

The silent entity in surrogacy is the child that changes hands after birth. The ban on commercial surrogacy will end the market that threatens to commodify children. Media stories of abandoned and unwanted Indian surrogate children (16, 17) present a chilling counterpoint to the poignant pleas of infertile couples. Children are a vulnerable section of the population deserving of full protection by the state. These sentiments are amplified in the Report at 5.67, where the term “legal parent” is proposed instead of “intending couple” to emphasise the parental role and duty to the child. In fact, the ART Bill uses the term “commissioning couple” (appearing in Chapter 1. Preliminary 2. (h) Definitions), which denotes a power imbalance and needs to be reframed. At 6.19, the Committee recommends that the names on the birth certificate should be decided before the child is born, placing full responsibility on the legal parents, their extended family, and inheritors. It is unacceptable that a surrogate child, who is so intensely desired, should be left in the care of the State on any account.

The list of those eligible to seek a child through surrogacy must be closely examined. The best lens to employ in such an assessment would be that of the best interest of the child. The argument of social stigma faced by infertile married couples can hardly apply equally to widows and single women. Progenitive stresses would differ for live-in, same-sex, and transgender couples. Without denying the human desire to reproduce, including “wider society” in the eligibility list, as mentioned at 5.40, encourages aspirations over need and must be examined. Given a choice, would it be in the best interest of the child to have a single parent or two parents of the same sex? These may be existential questions, but caution is advisable in the absence of long-term studies (18).

Another issue expressed at 5.42 is the eligibility of non-resident Indians, persons of Indian origin, and overseas citizens of India to access surrogacy in India. The experience with cross-border surrogacy so far should discourage such arrangements, in the short term at least. The Ministry of External Affairs deems these categories as “foreigners” (19) and moving surrogates or children across borders may pose the same challenges of citizenship, abandonment, and limited legal recourse mentioned at 5.148 in the Report. For their own protection, surrogates and children would need to stay within the jurisdiction of the Indian government. This could be reviewed at a later date when infertility clinics are fully regulated under the ART Bill.

Assessment of intended legal parents, including psychological testing by a “competent authority” as with adoption, will protect the child’s interests. Prohibition of trafficking (5.148) and sex selection (5.149) and provision of adequate insurance cover (6.11) and breast milk (6.15) are some protective measures recommended in the Report. The Report also recommends medical insurance cover for the child until maturity (6.11). Genetic testing may need to be included in the Bill, where parenthood is contested (6.27).

The option of adoption appears at 5.23. Even if there are insufficient children and current difficulties with adoption, this option cannot be undermined and used as a justification for surrogacy. The government could instead streamline and facilitate the adoption process in India.

Some areas remain problematic. Despite the longing for a child, would a disabled surrogate child be accepted by the parents? It needs to be an essential part of the counselling that legal parents have no claims on perfection. If the parents die or separate, legal guardians should be nominated and consented to before the child’s birth. The process will have failed if a surrogate child, for any reason, becomes a ward of the state. If the surrogate carries twins and the couple desire only one child, can a foetal reduction be enforced? Are there limits to autonomy of either the parents or the surrogate, and should these be defined?

Penalties described at 5.158 are a good deterrent because of the unfortunate tendency to circumvent the law. Doctors and owners of infertility clinics would need to take responsibility for negligence or illegal acts. Parents who have used illegal coercion should not be excused despite concerns about the welfare of the child.

Ovum donation and embryos

There is also the possibility of exploitation of ovum donors, essentially sourced from the same population as surrogates. Unlike sperm donation, ovum donation involves hormonal manipulation and a surgical procedure for the extraction of eggs. The risks involved are significant, and donors are typically single young women who may not yet have their own children. The Report points out at 5.88 that gamete donors are not mentioned in the Surrogacy Bill.

To avoid undue inducement to women, in view of the possible risks, ovum donation should essentially be voluntary and altruistic, a one-time option. Commercial terms with donors would raise the issue of exploitation once again. Women who volunteer could be pre-screened and counselled to ensure they have complete information about the risks before donation. There could be pre-determined adequate compensation for these donors in addition to the actual costs of medications and procedures, including medical insurance for at least one year following the donation. At 6.22 in the Report, it is recommended that terms of egg donation be defined. This area remains unclear in the ART Bill as well.

The Report recommends protocols in the storage and handling of embryos at 5.101, along the same lines as the ART Bill. This area is ethically troubling as the low success rates of the technology means that more ova than necessary may be harvested, putting donors at risk, and more embryos than necessary may be formed and implanted, putting surrogates at risk. The fate of the excess embryos, whether implanted or frozen, is also an ethical dilemma. For this reason, the sale of embryos and advertising for embryos would need to be prohibited.

If legal parents do not pay their dues to the ART bank, or if the clinic shuts down, should embryos be discarded? Some countries have embryo adoption and embryo donation programmes that treat the embryo as a genetic child of the parents, with full moral status. If the embryo is viewed as a child, how should we think about freezing and destruction of embryos? This is a sensitive area that treads on beliefs about the genesis of life and respect for life and is worthy of careful consideration.

Recommendations

The effort of the government in bringing out the Surrogacy Bill is commendable, sending out the right message to the medical fraternity and wider society. While some modifications may be in order, it addresses the social problem of exploitation of women and abandonment of children in commercial surrogacy arrangements.

The ART Bill is surely required to regulate clinics, but it is unclear and incomplete in many aspects. The key issue is that it does not specifically prohibit commercial arrangements. The commercial linkages between ART banks and ART clinics are unclear and their roles and responsibilities require definition. If the Bills are to be harmonised, that should in no way undermine the ban on commercial surrogacy.

As is the case with most excellent laws in this country, the Surrogacy Bill will only be as good as its implementation. Political and professional will must be brought to bear to ensure that the spirit of the Bill is upheld.

Data from ART clinics would be extremely important to evaluate the sector and inform future decisions. It could also lead to modification of the statute in the future.

The Department of Health Research and the Ministry of Health and Family Welfare could consider establishing a Medical Technology Review Committee to evaluate new technologies presented as medical advancements, not including research. The experience of other countries with the specific technology and its implications can be reviewed along with the ethical, social, and legal implications for our particular population. This would attempt to look beyond technical validity and usefulness, serving to inform health organisations and patients of possible harm and ethical issues. Country needs, appropriateness, and social relevance could be evaluated. Genetic testing and enhancements and stem cell treatment and biobanks, for example, may require this kind of review. It will be challenging to stay ahead of the science, but consultations and public viewpoints could contribute to a better understanding.

The Committee could include experts from the fields of the humanities, human rights, and gender studies as well as scientists, lawyers, and lay persons. The objective is not to obstruct but to provide insights and advice to regulators and professionals. After all, it is the duty of the state to protect human rights and evaluate entitlements and social harm. Leaving any review completely to professional experts and medical societies, however well-meaning, risks conflict of interest situations and limited viewpoints.

Conflict of Interest: None declared
Acknowledgements: The Brocher Foundation, Geneva