Technology has the powerful nature of surprising us time and again making things possible which weren’t so before. But we humans tend to give it a shape that taints the noble rationale behind every discovery. The wonder of surrogacy is one such example which has given a ray of hope to millions of couples who face the curse of infertility. Earlier traditional surrogacy created disputes in the arrangement owing to the fact that the eggs and the subsequent child born, genetically belonged to the surrogate mother giving her equal biological rights. However with the coming of the technology of IVF ( In-Vitro Fertilization) it is now possible to create the embryo by fusing the commissioning or the intended parent’s eggs and sperms and have it implanted in the surrogate mother’s uterus thereby detaching any form of genetic link with her.
Initially altruism was the driving force behind this revolutionary concept. But over the last two decades the practice of fixing a price for the services rendered by the agencies and surrogate mother has evolved and been indulged in. This commercial activity needs to be regulated and managed in order to be justified. Nayna Patel, administrator of Akanksha fertility clinic in Anand, Gujarat says that the basic morale behind this activity is a premise where one woman who is unable to bear a child seeks the services and help of another woman who is willing to bear the child for her in return for a valid compensation for all the expenses and pain incurred. But this moral intention is stuck in the cobwebs of ethical and legal issues because till date, our country has not passed a legislation on surrogacy and all that it can rely on is an ART Bill which has been pending since 2010 and the guidelines laid down by ICMR which are very profusely flouted.
Lack of legal supervision has led to disastrous outcomes pertaining to the industry and has left everyone with a bad impression about the whole activity. It cannot be denied that the industry contributes heavily to our GDP by making an approximate business of INR 14.2 Billion by the end of 2013 but that cannot be a reason to promote it because of the unfair manner in which it is practiced. The root behind the rest of the irregularities is the rapid expansion of IVF clinics all over the country. Among the metros, it is estimated that there are about 300 clinics in New Delhi, over 20 clinics in Chennai and 428 centers in Mumbai. Apart from this, Anand which is considered as the cradle of the world is known to the foreign nationals as a major hub for IVF clinics in India. When there is competition, mischief is bound to happen. There are various factors which these clinics take due advantage of.
There are various distinct features of the pending bill with regards to cross-border Surrogacy. Section 34(1), (3) and (19) of the ART Bill 2010 permits both citizens of India as well as foreign nationals to commission surrogacy in india and avail the services of a surrogate mother in return for a monetary compensation. There is an absence of a universal law on surrogacy giving rise to issues pertaining to enforceability, non-registeration of birth of surrogate child, non – recognition of parental rights, legal documents etc. At present the surrogacy agreement made in India has no legally valid or binding effect outside the territorial limit of India. Neither does the government of India allow foreign nationals to take their children outside India as Indian citizens. Foreigners will have to legally adopt their new born children because as soon as the child is born, he/she is given an Indian citizenship. Immigration regulations of UK, Australia and New Zealand provide for adoption of surrogate child born of International surrogacy arrangements. These surrogacy agencies and clinics take advantage of these hurdles and exorbitantly charge their customers and thus make huge profits.
The state health department authorities have claimed that certain tests used in the IVF procedure may be used by doctors to detect the sex of child. IVF treatment currently is unchecked, unsupervised and not regularized and there is currently no law that governs it or surrogacy. There are only guidelines made by the Indian Council of Medical Research (ICMR) which do not carry the weightage of a law, or penalty upon non-implementation. “To open an IVF clinic, you need to get the certification needed to open a general nursing home. Licensing of the ultrasound machine is also needed because of the act banning sex determination. The staff does not matter – you keep one or two gynaecologists, have the basic infrastructure to give a hunky-dory picture of the clinic”, says Abha Majumdar, who heads the centre of IVF and human reproduction at Sir Ganga Ram Hospital. The guidelines and bill clearly states that IVF should be a couple’s last resort. However since there is no one to check, doctors immediately give a go for this procedure without exhausting other means.
CHEATING THE SURROGATE MOTHER AND COMMISSIONING PARENTS
The biggest reason for the failure of this institution was the hardships faced by the commissioning parents and the surrogate mother. Women from the lowest strata of the society are usually eager to become surrogates but their illiteracy and lack of awareness is misused by the agencies. As per the guidelines, all the parties must be duly informed about the rules and regulations but that almost never happens. Agencies go upto the extent of hiring women who are underage, overage or physically unfit in order to not lose customers. Such was the case of Savita Bhatti in New Delhi who became a surrogate at the age of 56. There is no supervision of the conditions in which the surrogates are kept and neither are they aware of the details of the contractual agreement which is in place. On the other hand, the desperateness of the intended parents is well utilized by these agencies that are free to charge any amount so as to make huge profits. Gynaecologists nowadays believe that the normal practice is not as lucrative and glamorous as IVF hence they also adopt the trend of be-fooling patients and customers.
It is the highest need of the hour to table the Bill in order to stop the malpractices associated with surrogacy in India. Although the bill is inconclusive in nature but due time and consideration should be given to this urgent matter so as to stop the commodification of one of the most fundamental units of our society and use this technology only for the better.
About the Author
Shweta Rath is a student of Symbiosis Law School, Pune. She enjoys reading up on various important issues and is a keen learner who wants to work on enhancing her research skills. She is a big movie buff and loves interacting with new people.
 RNCOS-Business Consultancy Services;“Lack of Regulation: Mushrooming IVF clinics”; Also see: http://www.rncos.com/Press_Releases/Lack-of-Regulation-Mushrooming-IVF-Clinics-across-India.htm; for more read” Booming IVF Market in India”
Also see: http://indiatoday.intoday.in/story/babies-born-fertility-clinics-in-vitro-fertilisation-ivf-technology/1/287282.html
 Also See: http://www.thehindu.com/news/cities/chennai/sans-regulation-fertility-clinics-mushroom-in-chennai/article4718745.ece
 Also See: http://www.dnaindia.com/mumbai/report-mumbai-has-42-of-state-s-ivf-centres-study-1982765
 Section 35(8) of ART Bill 2010
 Supra, Footnote 4
 SEE: http://www.newindianexpress.com/nation/article354842.ece?service=print