Reproductive Tourism in India

What is Reproductive Tourism?

· Reproductive Tourism is the practice of travelling to another country for fertility treatments. It is closely linked to the practice of commercial surrogacy. Today, India is a major destination for surrogacy. Apart from the absence of strict regulations, Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost.

· In India, easy availability of female surrogate mothers is one of the most important factors for increased "reproductive tourism". Low cost is obviously another important reason.

· In India, the surrogate mothers are taken off to a house and kept there for nine months to be pregnant and then give birth to a child. They are paid around Rs. 3 lakhs for this purpose.

· This comes out to be ` 33000 per month, in US the Surrogate mother is paid USD 75000, that is equivalent to Rs. 37, 50,000.

· “Wombs for rent”, “outsourcing pregnancies”, “baby farms” is how some of its shriller critics describe the practice.

Legal Framework:

· Surrogacy in India has been made legal since 2002. The surrogacy industry and the fertility tourism in India has increased due to availability of medical infrastructure, potential surrogates and increased international demand. The surrogacy agreements are tools to provide medical, nutritional and overall health care to surrogate mothers.

· However, Indian Council for Medical Research has given Guidelines in the year 2005 regulating Assisted Reproductive Technology procedures. The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The observations of the Law Commission in this context are as follows:

1. Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

2. A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

3. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

4. One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

5. Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

6. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

7. Right to privacy of donor as well as surrogate mother should be protected.

8. Sex-selective surrogacy should be prohibited.

9. Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

Issues and Implications:

  • There are two types of surrogacy: one where the fertilised embryo of the couple’s sperm and egg are implanted in the Indian woman’s womb (or it could even be sperm and eggs from donors); the second where the man’s sperm is fertilised with the Indian woman’s egg. But the father and partner (not biological mother) will take the baby, according to an agreement before the birth.
  • One major issue is that Indian surrogate mothers getting exploited to benefit selfish career women who put their careers ahead of their families.
  • Over the years, Gujarat, and especially Anand has evolved as hub of "Reproductive Tourism" in India. Gujarat has been an enthusiastic case for surrogacy— revenue pouring into the state through “reproductive tourism”, empowerment of the women employed as surrogates, an answer to the prayers of childless couples. However, there were reports regarding death of a surrogate mother Premila Vaghela, in the eighth month of her pregnancy.

In Jan Balaz v Union of India, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district. The court observed: "We are primarily concerned with the rights of two newborn, innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance." The court considered the surrogacy laws of countries like Ukraine, Japan, and the United States.

  • There are some complex questions related to surrogacy such as – What if the baby is born disabled/dead or the couple divorce/die before the baby is born? What is the nationality of the child? Should the child ever know about its history?

India needs regulatory laws to solve such questions and protect the rights of surrogates and clients. There is a Assisted Reproductive Technologies (Regulation) Bill, 2010, in pipeline but it is lying in cold storage as of now. In 2009, the Gujarat High Court recognised the nationality of the surrogate mother while determining the child’s citizenship. Many women who become surrogates are poor and unaware of the possible medical complications. In a country where maternal mortality rates are among the highest in the world and there are few reproductive rights, unregulated surrogacy could be disastrous, rather than empowering.