Gestational surrogacy is a procedure that allows a host or surrogate to carry an embryo created by in vitro fertilisation (IVF) through its gestational (or full term) period to produce a baby. The embryo or egg is combined with sperm outside the body (in vitro). It involves monitoring and stimulating a woman's ovulatory process, removing an ovum or ova from the woman's ovaries and letting sperm fertilise them – in a laboratory.
Since this was first achieved in 1986, it has become a sought after method for parent/s, who cannot conceive or face other problems, to have their own biological baby. It can be done in various ways - involving the intended parent or parents’ own eggs or securing them from known or unknown donors - in each, the resulting baby is genetically unrelated to the surrogate.
The scientific procedure, however, has proved far less complicated than the moral and legal ones surrounding surrogacy globally. Difficult questions have emerged involving ‘ownership’ of the foetus and baby, as well as exploitation of poor, illiterate surrogates in developing countries and the fear of human trafficking.
This has resulted in governments stepping in to frame policies ranging from surrogacy being unlawful (in China, Germany, France); allowing commercial surrogacy (in Russia, Ukraine, Georgia, some states in the USA), where women can be paid to carry the intended parent/s baby; countries where only altruistic surrogacy is permitted, which means that only the medical and insurance costs of the surrogate can be met without the surrogate earning anything from the arrangement (in Britain, Belgium, Denmark); and finally, countries without clear regulations on the practice (like Sweden).
Countries in South Asia too have responded differently to this technology, ranging from outright ban in Pakistan, no legal recognition in Bangladesh while India, Sri Lanka and Nepal have become destinations for surrogacy.
In Pakistan, surrogacy in any form faces an outright ban. This was articulated clearly through the case in early 2017 of Pakistani-American Farooq Siddiqui, a clinical technologist based in New York, who lost all legal battles in the country’s local to top Islamic courts to win the custody of his 10-year-old surrogate daughter. The Federal Shariah Court (FSC) declared surrogacy against the injunctions of Islam, and further directed the government to strictly punish parents and doctors involved in the surrogacy business in the country.
Similarly, Bangladesh does not recognise surrogacy as a legally accepted method of parenthood and problems arise for Bangladeshi nationals to get recognition for their surrogate babies if born elsewhere.
Bhutan and Myanmar haven’t drafted laws for surrogacy. In 2016, Bhutan experienced a piquant situation when a surrogate mother from Hyderabad, India, gave birth to a baby girl in Thimphu’s Jigme Dorji Wangchuck National Referral Hospital. The mother and baby were looked after till the American parents arrived to take the baby back with them.
Myanmar’s press sometimes carries stories about the fear of trafficking and forced pregnancies by Chinese nationals but these need substantiation.
In contrast to these countries, India, Sri Lanka and Nepal have become attractive destinations for surrogacy procedures as they offer a pool of skilled doctors, low costs of equipment and technology, easy access to surrogates, and undemanding legal frameworks.
In India alone, the ‘business’ is pegged at billions of dollars with tens of thousands of babies conceived for domestic and foreign parents. The latter finding the cost of surrogacy in India (even after hefty ‘illegal’ compensation to surrogates) staggeringly cheaper than in their own countries.
Bollywood has been a high-profile user of this service of surrogacy. Star couples like Aamir Khan and Kiran Rao, Shah Rukh and Gauri Khan, and individuals, like Karan Johar, siblings Tusshar and Ekta Kapoor have opted for parenthood through surrogacy.
Both India and Sri Lanka are guided by the policy framework drafted by the Indian Council for Medical Research (ICMR) and the Sri Lanka Medical Council (SLMC) respectively, to regulate Assisted Reproductive Technology (ART) procedures.
These include clauses to ensure that health and insurance costs of the surrogate are adequately met; shield privacy of all parties involved; forbid surrogacy from becoming a commercial activity, among others. It also specifies the need for one of the intended parents to be a donor, and also allow single parents to opt for surrogacy.
However, in India, in 2008, Baby Manji Yamada, a baby by surrogacy in Anand, Gujarat, to a Japanese man, faced a passport hurdle. This brought to national attention the need for clearer frameworks, as well as the issue of commercial surrogacy.
In response, reports were written and recommendations made, which did not in any significant way challenge the existing status quo. It did though point out the “conflict on adoption and guardianship as non-Hindus cannot adopt in India,” and also suggested a specialized “Surrogacy Court” to be created to comprehensively look at problems and disputes.
However, in 2015, a notification, under the BJP government, prohibited surrogacy by foreign nationals, and the Surrogacy (Regulation) Bill was introduced in Lok Sabha on November 21, 2016, which introduced some controversial clauses, like only “close relatives” of the married couple could be surrogates - without defining what “close” means. It also barred single parents from using surrogacy.
Though the bill was passed on December 19, 2018 in the Lok Sabha, it has lapsed since, and may be taken up again after the elections. Till then, surrogacy continues operating the way it is – booming in the grey!
In Sri Lanka too, the National Science & Technology Commission (NASTEC) had submitted a report in 2003 that suggested forming an ART (Assisted Reproductive Technologies) Commission with powers and role similar to that of the Human Fertilisation & Embryology Authority of the UK. Yet, no Bill or law has been submitted in their parliament.
A similar confusion and limbo-like situation can be seen in Nepal. Its parliament had decided in 2015 to ban surrogacy after the terrible earthquake in the country, when it found many surrogate mothers stranded in the country. Its Supreme Court had then ordered the government to ban commercial surrogacy, and also recommended for a new law to allow altruistic surrogacy for Nepali nationals. But, nothing concrete has been formulated yet.
The area is expected to remain highly contentious, with reproductive technologies becoming even more advanced, as well as with human and women’s rights too rising in importance.
(The author has done extensive research on the issue and can be reached at firstname.lastname@example.org)