Commercial Surrogacy and Assisted Reproductive Technologies: Some Issues


There is draft bill the ART (Regulation) 2008 circulated by the ICMR as per directives of the Health Ministry in circulation, presumably also on the net. The committee responsible for drafting it is almost totally representative of business interests, which also included the ‘professional’ experts, medical community representatives. No discussion has been held with women’s organizations. Only at the behest of SAMA, NCW (Malini Bhattacharya) and some of us were some involved in the discussions initiated. Finally SAMA organised a national consultation on the issue in September, where an ICMR representative presented parts of the draft bill. The fact is that this business has been growing for the last 15 years or so and ICMR government and all of us have allowed it to grow. Now are we at all in a position to stop the trade?

 The draft bill is some 135 pages long of which the actual bill is only about 35 pages, the rest being rules. These are oriented to protecting the service providers from any legal complications given the nature of transactions/ agencies involved in this business. The health of the woman is the least part of the concern. As many noted, the regulations are in the nature of regularizing what has been going on already for several years now.

  1. Chap I Definitions are problematic: e.g. surrogacy; ‘semen banks’; infertility etc.

a)      Different forms of surrogacy in terms of donor combinations/pairs. The draft does not recognize surrogacy where the woman herself may be part donor.

b)      Other forms are also not discussed;

c)      There are issues in terms of genetic parents, gestational mother etc. who is termed as genetic parents? What if all stages involve donor sperm donor ova etc?

d)      Similarly semen banks are a generic name in the draft bill for all sorts of banks storing frozen ova etc.

e)      Infertility definition is now ‘business interest driven’ so failure to conceive /have a child within 1 year (?) is being defined as infertility.

f)        There are several such legal issues

  1. Chap III National Advisory Board on ARTs constitution of board and function seen as more of a business/industry  representation; also state boards and
  2. registration authority; and related clauses: deemed to be registered and deemed to be renewed meaning you are rewarding lack of action by government agency /registering authority and allowing registration and renewal to happen by default… thereby meaning that business should not suffer.
  3. Chapter IV duties of an ART clinic

The latest round of discussion on ARTS presents an alarming scenario:

·        The Government of India in its enthusiasm for policies advancing globalization processes has virtually taken on itself the role of a facilitator in the business of ‘fertility tourism.’ In other words if GDP is to continue to rise in these days of increasing poverty, under-nourishment and starvation deaths, agrarian crisis, industrial slowdown, meltdown in the first world and its cascading effect on third world economies then what better source than women’s bodies.

·        The very same government which has for decades aggressively pushed a stringent policy for population control today seems to be going all out to woo couples in search of quick-fix solutions to their aspirations for parenthood without necessarily the physical capacity or forbearance to reproduce.

·        Thus when India should be debating more fully the procedures for adoption and the stumbling blocks, the Indian Council of Medical research and the Health Ministry, Government of India are busy promoting surrogacy and ARTs to address problems of so-called ‘infertility.’

·        What we need to discuss is whether a distinction should be made different combinations arising out of different compulsions which may be driving couples to surrogacy: e.g. man may be infertile; woman may not be fertile or unable to carry a pregnancy through. Do the laws in their country permit these procedures/processes/ transactions? If not, is India acting as a catalyst to promote business interests and encouraging these ‘couples ‘to circumvent the law in their countries?  

·        Should we not find out which country permits surrogacy and that too commercial surrogacy? From the SAMA presentation it was not clear though they said perhaps some states within the USA allow surrogacy and perhaps commercial surrogacy, but it was not clear. None of the other 8 state legislations they had studied, like UK, China, Germany, Denmark and others permits commercial surrogacy, some do not even permit surrogacy per se

·        With regard to surrogacy/commercial surrogacy, should we ask for a medical certification for a couple who are unable to produce a child and allow provision for surrogacy in that circumstance? How is that to be monitored?

·        There is a suggestion that rather than a ‘price’ amount, we ask for ‘compensation’ for the surrogate woman? That is distinguishing between commercial surrogacy and permitting some ‘altruistic’ surrogacy where compensation may be given.

·        There is flourishing internet trade going on in ARTs and surrogacy. What is our position on that?

·        The draft bill says upto three full term successful pregnancies should be permissible for a surrogate. So what happens to the 2-child norm? What about leave regulations etc. for maternity benefit?  

·        The draft bill does not address woman’s health concerns at all. Rather, the focus on that count is in terms of what needs to be ensured so that a ‘healthy’ baby is delivered, for which a local ‘guardian’ is to be appointed to monitor the growth etc. this is atrocious. Should we ask for a comprehensive health insurance for the woman to cover health risks involved in those cases permitted by the proposed law, without making an offer of benefit to prospective husbands of such surrogates who may then bum them off to get the benefits?

·        The issue of consent forms is also important since while the manner of obtaining consent is itself open to question, the forms are more or less designed to protect service providers, clinic etc from legal hassles.

·        There is the issue of birth certificate. The bill says certificate should be issued in name of ‘genetic’ parents with no right to the child to know the identity of the surrogate mother. There are, no doubt, legal issues involved. Some say go for the adoption model where, upon attaining adulthood the child may be disclosed the identity.

·        There are legal issues involved as happened in the Manjhi (Japanese couple) case. These pertain to rights in terms of parenthood and citizenship aspects.

·        What does the ICMR do? Has it made any research available to us both in terms of health aspects or the sociological aspects in terms of who are involved both at demand and supply side? Should we ask for registration of ‘genetic’ parents who are asking for the baby since it is easy to monitor that through immigration records? What about the last 15 years data/information?

·        There is an issue in terms of ‘couple’ as per permitted legal definition. Issues have been raised about rights of gay/lesbian couples. This bill is more open to liberal definition as of now.

·        The female body, the centre of much of the Women’s studies analysis in recent years is fast emerging as the only means of survival for women and their families. Ironically, the discussion, this time round as well, is caught up in issues of ‘choice’, ‘patriarchy’ and critique of heteronormativity and the ‘family centred-ness’ of the critique.

·        In other words when the movement should put its act together and push for a sharp indictment of this ‘fertility tourism’ which is being promoted with the wombs and bodies of women at the centre, much like ‘medical tourism’ which trampled over the body organs of the poor in India and gave rise to scandals involving unscrupulous quacks and medical practitioners.


Capitalism in its most recent phase has moved ahead with commercialization of social relations as in the case of increase in the phenomenon of dowry in India. Its most recent example with the help of new technologies is the trade in body parts of women. This growing commerce signifies the crassest form of commodification of the female body as well as the alienation that capitalism represents. However, there is also another shift here. Reproduction, though it has a social role, has largely been the responsibility of women within the family form. What we are seeing here is a public appropriation of the woman’s reproductive capacity. There is both a class and an across class but first world/third world divide here. Who is the woman likely to be the surrogate? These are issues for all of us to debate.

However, as in the ‘bought wives’ syndrome, do we participate in the stigmatization of the surrogate? The nuance that our feminist friends talk of should not lead us to a blurring of the distinctions between family-centred reproduction and other circumstances. Rather, we need to distinguish between the forms, the larger context of social relations and profit/commerce that are driving this kind of ‘reproduction’ into which women are being drawn. Does this entry of women into a ‘market’ of child/baby production enhance her choices or is it that her freedom to make this particular choice is circumscribed by the closing of other options for her and her families’ survival in a globalised world? What is and should be the role of the state is a matter for further debate.

Indu Agnihotri

20 October 2008