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Rebirth of parenthood

The proposed law on surrogacy can open up commercial opportunities in the country, but may also spark off massive controversies, reports Satya Prakash. See graphic

delhi Updated: Jun 23, 2010 02:12 IST
Satya Prakash

German citizen Jan Balaz and his wife faced a tricky situation after their country refused entry to their twins born to a surrogate mother in Gujarat.

Surrogacy is not recognised in Germany. After two years of legal wrangling, Germany granted visa to the twins in May this year.

Dan Goldberg, an Israeli gay, remained stranded in Mumbai as the Israeli government took three months to issue passports to his twins born to a surrogate Indian mother.

The twin boys – Itai and Liron – were issued Israeli passports after the DNA paternity established last month that Goldberg was their biological father.

Infertile couples are coming to India, particularly Anand in Gujarat, to have a baby through surrogacy, thanks to good medical facilities, at much cheaper rates at that.

According to a Law Commission report, the usual fee in India is $25,000-30,000, which is around one-third of the amount charged in the western countries.

The problem

Infertility is one of the most prevalent medical problems and almost 15 per cent of couples around the world are unable to have babies because of this. In India it carries with it a social stigma and childless couples suffer from a sense of insecurity.

But since the birth of Louise Brown (the UK) and Kanupriya (Kolkata, India), the first and the second child born through in-vitro fertilisation (IVF), in 1978, assisted reproductive technology (ART) has come a long way. In the last two decades India has witnessed mushrooming clinics offering ART solutions.

What is surrogacy?

Surrogacy means the process of carrying and delivering a child for another person. Generally, couples unable to have children in the natural way opt for it. After the birth, a surrogate mother hands over the child to the biological parents of the child.

But surrogacy can also lead to a situation where five people could lay claim to parenthood – the genetic mother (who donated the ovum), the commissioning mother, the surrogate mother, the genetic father and the commissioning father.

Absence of law

At present, there is no law legalising or regulating surrogacy in India. Terming the legal issues related with surrogacy “very complex”, the Law Commission in its 228th report in 2009 underlined the conflict of various interests and its inscrutable impact on family.

“The need of the hour is to adopt a pragmatic approach by legalising altruistic surrogacy arrangements and prohibit commercial ones,” the panel said.

Main provisions of the Bill

A year after the Law Commission’s report, the United Progressive Alliance government is ready with “the Assisted Reproductive Technologies (Regulation) Bill, 2010”. Likely to be introduced in Parliament in the monsoon session, it has much more than what the law panel recommended.

The Bill recognises single parenthood and live-in relationships and proposes to legalise commercial surrogacy. It intends to regulate ART clinics and the rights of all concerned, including the child, by setting up national and state-level advisory boards and attempts to address legal, medical, ethical and commercial issues involved in the process.

It proposes to set up a regulatory mechanism. ART clinics will have to maintain a database of prospective surrogates and keep all information confidential.

It will be the duty of clinics to ensure that only eligible patients, donors of gametes and surrogate mothers can avail of ART and are not suffering from any sexually transmitted or communicable diseases.

A donor shall relinquish all parental rights over the child who may be conceived from his or her gamete and the identity of the recipient shall not be made known to the donor.

To avoid legal complications in cases involving foreigners, the Bill makes it mandatory for them to submit certificates on their country's policy on surrogacy and that the child born to an Indian surrogate mother will be allowed entry in the commissioning parent/s’ country. They are also required to appoint a local guardian to take care of the surrogate.

Controversial provisions

But the most controversial provisions are on recognising single parenthood and live-in relationships. According to clause 32(1) of the draft Bill, ART technology “shall be available to all persons including single persons, married couples and unmarried couples”.

The expression “unmarried couple” gives legal recognition to the increasing trend of live-in relationships, particularly in metros. Further, entitling “single persons” to hire surrogate mothers to have children means even gays and lesbians can use ART to become a father/mother.

Anjali Gopalan of the Naz Foundation welcomed it saying, “It’s an inclusive law that recognises a gay or a lesbian person’s right to start a family.”

Asked if the proposed law will have any adverse impact on the institution of family, social scientist Ashish Nandi said: “It’s not that the law is going to impact family. In fact, it’s the other way around. The change in the practice of family has forced a change in the law. The law is simply recognising what is already happening in society.”

Senior advocate Rajiv Dhavan, who played a crucial role in drafting the Bill, said the job had been done keeping in view the future. “The Bill does not take a moral position on the issue,” he added.

Notwithstanding the controversy, one thing is certain. Once the Bill becomes a law, it’s bound to give a fillip to medical tourism in India.