Sunday, August 16, 2009

Food for thought for foreign surrogacy in India IPs.

Legislation to control surrogacy favoured

J. Venkatesan

“The legal issues related to surrogacy are very complex”

NEW DELHI: The Law Commission has recommended to the Centre to enact legislation to regulate Assisted Reproductive technology (ART) clinics, as well as the rights and obligations of parties to a surrogacy.

Patriarchal society

The Commission, headed by Justice A.L. Lakshmanan, in its 228th report, said: “the growth in the ART methods is recognition of the fact that infertility as a medical condition is a huge impediment in the overall well-being of couples and cannot be overlooked especially in a patriarchal society like India. A woman is respected as a wife only if she is mother of a child, so that her husband’s masculinity and sexual potency is proved and the lineage continues.”

Very complex

It said, “The problem arises when parents are unable to construct the child through the conventional biological means. Infertility is seen as a major problem as kinship and family ties are dependent on progeny. Herein, surrogacy comes as supreme saviour. The legal issues related to surrogacy are very complex and need to be addressed by a comprehensive legislation. Surrogacy involves conflict of various interests and has inscrutable impact on the primacy unit of society, viz family.”

The Commission, which took up the subject suo motu, said: “Non-intervention of law in this knotty issue will not be proper at a time when the law is to act as an ardent defender of human liberty and an instrument of positive entitlement. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational.”

It said: “active legislative intervention is required to facilitate correct uses of the new technology, i.e., ART, and relinquish the cocooned approach to legalisation of surrogacy adopted hitherto. The need of the hour is to adopt a pragmatic approach by legalising altruistic surrogacy arrangements and prohibit the commercial ones.” The report pointed out that a legislation dealing with surrogacy would help reduce the chances of various kinds of child abuse in cases of adoption.

“Wombs on rent”

Stating that legalising surrogacy would be a boon for childless couples, the Commission recommended comprehensive provisions dealing with pre and post-surrogacy period and also the rights and protection of a surrogate mother, the child, as well as the intending parents.

It said, Comparative cost advantage in India had made it a favourable destination for foreign couples and a whole branch of medical tourism had flourished on the surrogate practice. “It seems that wombs in India are on rent which translates into babies for foreigners and dollars for Indian surrogate mothers,” the report said.


Jon said...


I'm glad you posted this.

When we were in India to pick up our twins, we heard all sorts of stories about how controversial the surrogacy business has become. Most of these anecdotes came from the providers themselves and most of them are keeping the issues hush-hush so as not to causes a panic. Suffice it to say though there are some very real issues to the point where some of these clinics are being verbally and PHYSICALLY threatened and harrassed by Indians who are against surrogacy, especially nationalist, fundamentalists and those belonging to women's rights groups. This is a very real issue which any prospective surrogacy IP should not ignore. India is a very traditional and patriarchal society and surrogacy goes against the moral and ethical boundaries of the main religions and also the social MO of the nation. Indian people, contrary to what the clinics are publicising, do not engage in surrogacy in large numbers and if they do it's kept very quiet as it's considered a major tabooj, especially if the surrogate and egg donor are of a lower caste (major no-no for Indians)

Then you have the surrogate issues. We heard of some major horror stories from various players but nothing we can repeat here but I am sure you have heard some of the same stories. I have no idea if any of these stories are true but given the extra vigilance and wariness of the clinics against the IP's having any relationshp with the surrogates I tend to believe where there is smoke there is fire.

Point being, and this is what I tell any friends or people who contact me via email about surrogacy: if you have any interest in surrogacy in India, don't wait too long. Act quick because these laws are very fluid and they can change any minute. I think with surrogacy it's like the Wild West right now, anything goes, but as the public becomes more aware of this practice and they start to interject their opinions and biases (inevitable it's human nature) things will change and it will probably become more restrictive and regulated for foreign IP's and the worst case scenario being that it is totally banned, like the female adoption circles in China were after all the public outcry against foreigners adopting abandoned Chinese baby girls. In the Chinese situation, the govt there felt it was more morally acceptable to have these girls live out their lives in social isolation and poverty than to be adopted by educated and well-to-do Westerners who would give them some chance towards a quality life, all in the name of the public interest.

I don't want to rant but my point is people who are interested in surrogacy should not assume that this will be offered indefinately in India. If anything, and given the track record of what happens with most of these Third World countries who eventually ban the baby trade in any form - whether it's adoption or surrogacy, it would not be unreasonable to conclude that at some point the Indian govt will probably follow suite and ban surrogacy or greatly limit it.

Amani said...

I have a bunch of stories about surrogacy gone wrong, but nothing from any authoritative source, or anything I can prove.

i fear it will become banned too.

I wonder if we are creating a sub-class of half-Indian children who were born when surrogacy was legal, who may face discrimination because of their mixed ethnic heritage and being conceived and born through a system that could become illegal.

Jon said...

Oy. This is such a heavy topic but it is one we will all have to have one day. Do we dare get into it? Or shall we wait till your little tykes come along as your input and feedback would be much welcome.

I'm not as concerned about the surrogacy thing because it can be concealed if need be. I know that's not being totally honest but hey people don't need to know all the details about their birth circumstances. I know when we meet people who are strangers and don't need to know all the circumstances of their birth (like the doting grannies in the malls who come over to offer congrats and take a peek) we just say they are adopted and the whole discussion ends there. Racially these kids are no different than other mixed-race kids regardless of how they were conceived. In the US, being mixed-race is not that much of a stigma anymore in most areas as supported by the election of our first mixed-race President so there has been some progress in that arena. Not to say that one can openly have a surrogate baby of mixed-race in any state in the US, but if there are lots of liberal and progressive enclaves that people can move to that cater to more open lifestyles. Unlike some countries, the choices do exist.

My biggest concern is how these kids will deal with the fact that they have no mother. Literally. Who exactly is the mother in these cases. ED? Surrogate? What about the embryologist and the doctors who make all this happen. Don't they play a factor in the birth of these babies. I'm afraid it's a case of science moving too fast for humans and the prevailing social parameters of our time aren't equipped to deal with these issues. I pray though that by the time they are adults they will have the wisdom, maturity and self-confidence to deal with these issues in a manner that doesn't cause them any psychological or emotional distress.

Amani said...

Yes. let's get into it.

I am not concerned about any public concern about my bi-racial children. It is rare these days to see intact White Anglo-Saxon Protestant families as were the norm a few decades ago. Many families today are step-families, bi-racial families, families with adopted children, single mother, single father, grandparent as mum and dad, and all other combinations that have usurped the traditional nuclear family as being the norm.

You raise another curly question: who is mum? The surrogate, the ED, the woman who cares for the baby from the moment of their birth? Woman? What is you are a gay couple? Where is mum? Does there need to be mum? Is dad/mum or dad/aunty or dad/close-female friend ever going to be enough mum for these children?

I don't have the answer to that. i guess one has to look to the adult children of gay couples and ask them whether they needed a mum in the traditional sense of the word - from whose genetics and bodies they came from- in their lives.

Will I be enough mum for my donor-conceived children, regardless of their Indian genetics? Should I not create these children because I don't have the genetic components to make me mum? Will my children understand I loved them and wanted them so much I was willing to take the risk that they may be one of the the now donor-conceived adults who yearn to find their genetic mother or father.

Oddity Acres Clan said...

Who is Mum??

A parent is someone who wipes your tears, soothes your fears, cleans your nappies, hugs you after a bad dream, supports you at school sports day, gives you a tim eout when you go too far, kisses you when things are good and bad.

Genetics do NOT make a Mum or Dad a real parent, Love does.