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India Moves Toward Regulation of Assisted Reproduction and Surrogacy

India's surrogacy industry may soon face national regulation.

India's booming, and much publicized, surrogacy industry may soon feel the effects of significant regulatory developments. The Ministry of Health & Family Welfare, in conjunction with the Indian Council of Medical Research, has finalized the 2010 "Assisted Reproductive Technologies (Regulation)" bill and sent it to the law ministry for approval.

The 35-page bill seeks to regulate India's heavily market-driven fertility industry, and introduces a number of policies ranging from clinic regulation to restrictions on ART access. Some notable points that the bill formally includes:

  • Surrogacy shall not be available to "patients for whom it would normally be possible to carry a baby to term."
  • Surrogacy contracts shall be legally enforceable.
  • Married women need their husband's consent in order to become a surrogate.
  • Surrogates shall not undergo embryo transfer more than three times for the same couple.
  • Egg donor identities shall remain strictly confidential.
  • There shall be a detailed accreditation process for fertility clinics and gamete donor banks.
  • The Department of Health Research shall establish and manage a "national ART registry."
  • The only "couples" eligible for ART shall be those "having a sexual relationship that is legal in India." (This would apparently exclude gay couples.)
  • Foreigners seeking surrogacy services must provide written proof that their home country "permits surrogacy, and the child born through surrogacy in India, will be permitted entry in the country." (This would apparently exclude people from Canada and a number of European countries that specifically prohibit commercial surrogacy, and could exclude people from countries that don't explicitly permit it.)

The bill also calls for the formation of both national and state advisory boards composed of Health Department workers, industry representatives, scientists, and other civil society members (including those from the human rights community). These boards are charged with operationalizing and enforcing the many guidelines enumerated in the bill.

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Women's health groups and other human rights organizations in India have long demanded national regulation of ART due to concerns about the exploitation of surrogates and egg donors, and raised major concerns about previous drafts of the bill.

SAMA, a New Delhi-based women's health resource group, submitted a letter to the Indian Health Ministry thoroughly detailing its concerns, objections and suggestions to the 2008 draft bill. These included a failure to address and regulate the role of new "players" in the ART industry (brokers, intermediary agencies, hospitals, advertising agencies and other media, etc.); failure to explicitly recognize surrogates' rights both to enter into contracts independently and have final say in medical procedures such as antenatal testing, abortion and fetal reduction; inadequate acknowledgment of medical risks to surrogates; and a general "apathy" for other social dynamics around commercial surrogacy and the marginalized women it tends to employ.

It is yet unclear to what extent the 2010 bill's language, and more importantly, its interpretation, implementation and enforcement if passed will address these and other social justice and health concerns. The implications for reproductive tourism are undoubtedly huge, and will certainly be shaped by the forthcoming responses from international commercial ART/surrogacy agencies, rights groups, and other civil society voices.

The finalized bill's implications for certain groups, especially LGBT communities and foreigners seeking surrogacy in India, are turning heads already (1, 2, 3). Depending on how its rules on surrogacy are interpreted and enforced, the legislation would disqualify gay couples, both foreign and domestic, as well as individuals or couples from countries such as the UK, Canada and Germany where the practice is illegal. Such steps in India, the commercial epicenter of what has turned into a global business, would drastically affect the global politics of reproduction "for hire."

Regardless of how the bill moves forward, there is an ongoing need to consider how the ART industry will interface with social realities of poverty, as well as gender and class inequality in India. SAMA wisely cautions against over-emphasizing technical solutions to socially complex problems:

"The medical approach to address issues rooted in the social context creates more problems than it solves. Moreover, everything that is medically possible should not necessarily be legally permissible. Law is an instrument of social engineering and must be developed with consideration for all sections of society, especially those that are more vulnerable and marginalized, to prevent any kind of exploitation."

Douglas Pet is a former researcher for the Center for Society and Genetics.

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