by Nirmal John

The Assisted Reproductive Technology (ART Regulation) Bill seeks to regulate the practice of surrogacy and in-vitro fertilisation (IVF). However, it has been pending in Parliament since 2010. Currently, the guidelines stated in the Indian Council of Medical Research (ICMR) which regulate the running of fertility clinics across India has no binding force on fertility clinics. The lack of mandatory regulation has allowed India’s commercial surrogacy to grow unabated, generating an estimated $2.3billion per year.

While India’s emergence as a hub for commercial surrogacy has given couples a renewed hope of parenthood, several ethical issues have emerged. One, in particular, is the manner in which these surrogate mothers are chosen. Often the women selected as surrogates are poor and illiterate but select surrogacy of their own volition. They are not adequately informed about reproductive technologies and the potential hazards the procedure might have to their lives. They may also sign contracts with no understanding of the language or the terms. Hence, the consent given by these women are undermined. Moreover, deaths have occurred as a result of commercial surrogacy, but they attract little public attention. These deaths should give us reason to revisit Section 23 of the Indian Contract Act, 1872 which states that the consideration or object of an agreement is not lawful if it involves or implies injury to the person or property of another and is opposed to public policy.

Commercial surrogacy presents an interesting dilemma because the procedure can cause injury to the surrogate mother and could also be considered as a practice in opposition to public policy. On the other hand, implementing a ban on commercial surrogacy would constitute a denial of a fundamental human right. B. K Parthasarathy v. Government of Andhra Pradesh is one such case that recognised the right to reproductive autonomy as a fundamental right in India. Furthermore, international conventions like Article 16 of the Universal Declaration of Human Rights (UDHR) affirms that “Men and women of full age and without any limitation due to race, nationality or religion have the right to marry and to found a family”.

While surrogacy allows infertile couples to exercise their right to reproduce, the right to health of a surrogate mother ought to take precedence. Surrogate mothers are at risk of suffering from cancer because of the heavy dose of medication and hormones administered to enhance their egg-producing capabilities. Many of these women slip into a coma or die because doctors have done nothing to help them cope with the after-effects of egg donation. Although not expressly recognised as a fundamental right, courts in India consider the right to health as being an essential part of the right to life guaranteed under Article 21. In Parmanand Katara v. Union of India, the Court ruled that Article 21 imposed an obligation on all medical professionals to treat emergency cases without delay. Furthermore, in Paschim Banga Khet Mazdoor Samity v. State of West Bengal, the court held that the State must provide medical facilities and that financial constraints are not constitutionally acceptable reasons in emergency situations.

While commercial surrogacy remains mostly unregulated in India, a few positive steps have been taken to curb the practice. In particular, the government’s decision to ban all surrogate embryo transfers to foreigners is a step in the right direction because it could potentially safeguard the future of the child. It would, in all likelihood prevent a situation like the Baby Manji Yamada case from arising again, where the court had to decide on the custody of the child born of a surrogate mother under a surrogacy agreement after marital discords developed between the commissioning parents. Ultimately, the genetic father and grandmother gained custody of the child. But, more recently, in 2014, an Australian couple who had twins by surrogacy rejected one of the twins because they wanted a girl, leaving the son behind in India. Although the ban on transferring embryos could help protect children born out of a commercial surrogacy agreement, it is unlikely to stop the exploitation of surrogate mothers. Ensuring their protection would require the passing of the Surrogacy Regulation Bill, 2016. Rule 4 (b) (III) of the Draft Surrogacy Regulation Bill, 2016 bans women from being a surrogate more than once in their lifetime. Not only would this save proxies from exploitation but this regulation would also ensure that repeated pregnancies do not put the surrogate’s life in jeopardy.

Hence, the failure to pass the ART Bill has created many medical and ethically problems. On the one hand, this Bill could be perceived as a practice that is opposed to public policy if read in the context of Section 23 of the Indian Contract Act, 1872. On the other hand, implementing a blanket ban on surrogate embryo transfer could constitute a violation of an infertile couple’s right to reproduce. It is equally important to take into consideration the right to health of the surrogate. The government’s decision to ban surrogate embryo transfers to foreign couples could potentially safeguard the interests of the child. However, the ART Bill does little to stop the continued exploitation of women. This can only happen if the Surrogacy Regulation Bill 2016 is passed since the regulation would prohibit a woman from becoming a surrogate more than once in her lifetime. Therefore, the passing of the Bill could also protect the life of the surrogate mother.

Nirmal John is a lawyer currently based in Madras, India. His area of interests are in public policy, regulatory affairs law and environmental law.

---

1. _{Durgesh Nandan Jhal, No law to regulate booming industry, The Times Of India, July 7th, 2015.}
2. _{Jason Burke, India’s surrogate mothers face new rules to restrict “pot of gold”, The Guardian, July 30th, 2010}
3. _{Partha Chatterjee & Mayura Janwalkar, The Great Indian Egg Bazaar, The Indian Express, February 9th, 2014}
4. _{Gita Aravamudan, As confusion over surrogacy in India deepens, who cares about the surrogate mother?, Firstpost, July 16th, 2017}
5. _{Section 23, The Indian Contract Act, 1872}
6. _{B. K Parthasathy v. Government of Andhra Pradesh, AIR 2000 AP 156}
7. _{Universal Declaration of Human Rights (UDHR), Art 16 (1), December 12th, 1948}
8. _{Mathew Samuel, The Lethal Business of IVF clinics, Tehelka, Issue 50, Volume 11, December 13th, 2014}
9. _{Parmanand Katara v. Union of India, (1989) 4 SCC 286}
10. _{Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37}
11. _{Julie Bindel, Outsourcing pregnancy: A visit to India’s surrogacy clinics, The Guardian, April 1st, 2016}
12. _{Baby Manji Yamada v. Union Of India, (2008) 13 SCC 518}
13. _{Sanchita Sharma, No more rent-a-womb: Why India needs to regulate surrogacy, Hindustan Times, August 24th, 2016}
14. _{Rule 4 (b) (III), The Surrogacy (Regulation) Bill, 2016, Bill No. 257 of 2016. See: http://www.prsindia.org/uploads/media/Surrogacy/Surrogacy%20(Regulation)%20Bill,%202016.pdf}