Shutting doors for hope


Banning surrogacy for foreign nationals will affect Indian medical fraternity

Artificial Reproductive Technology
India has made tremendous progress in Artificial Reproductive Technology, making it a leading global player

Family is the primary unit of the society. Surrogacy helps build families.   Today, infertility is recognized as a disease even by World Health Organization (WHO). Artificial Reproductive Technology (ART) has been recognized as field of medicine and thus under the aegis of such techniques, surrogacy is a procedure undertaken to help the childless couples become parents. From almost over a decade India has been catering the childless couples and individuals from all over the world with respect to the infertility issues and childlessness on account of social or biological infertility.

The Law Commission in it’s 228th report on the Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a surrogacy stated in the year 2008 that ART industry is now a 25,000 crore rupee pot of gold. The major reason stated as per the report for foreigners flocking to India for such procedures is the “Cost factor.” The report categorically states that the usual fee is around $25,000 to $30,000 in India which is around 1/3rd of that in developed countries like the USA. This has made India a favorable destination for foreign couples who look for a cost-effective treatment for infertility and a whole branch of medical tourism has flourished on the surrogate practice.

However, off late, with gradual succession from banning single foreign nationals in 2012, Indian government has now come up with a recent notification which essentially puts a complete ban on foreign nationals from undertaking surrogacy in India. This will be a major hit on medical tourism in the field of infertility. Though there is no official data available as to how many foreign nationals visit every year to undertake surrogacy but the fact that India has occupied a significant position in recent years for surrogacy and infertility treatment in itself speaks , how detrimental this ban would be to the entire industry.

With India offering surrogacy to foreign nationals, it was not only beneficial for medical tourism but was also beneficial for overall economy and tourism sector of India. Surrogacy has helped India build stronger medical ties with other countries. Foreigners have even named their daughters “India.” It made foreigners aware about that fact that India has advanced a lot and have best of medical facilities, good doctors and world class treatments.

India has been targeted that surrogacy in India is poverty driven, leads to exploitation of women and women should not be renting their wombs to foreign nationals. Commercial Surrogacy leads to demeaning the dignity of women. Strange it is that India has always been on the target for the simple reason that it is a developing nation and when west does it, it is technology and when India does it, it is poverty.

The fact of the matter is that not only do we have cost effective treatment but also parent friendly laws. National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005 by the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS), the surrogate mother is not considered to be the legal mother. The birth certificate is made in the name of the genetic parents.

If we ban foreign surrogacy, then we are leaving the surrogacy as option for the developed nations like USA, and taking away from Indian medical fraternity which is equally capable to cater world’s need and bring benefits of medical tourism in the fields of infertility to India. In a progressive society bans are not looked as a regulatory measure.

The ART Bill is on the anvil, but by passing interim notifications to ban surrogacy, the spirit of democracy is defeated as there was no alarming situation to disturb the status quo of surrogacy in India. Motherhood / Parenthood is a universal phenomena, a doctor would not discriminate on any basis including nationality to provide surrogacy / infertility treatment.

Thus, for medical fraternity it has come to a shock. As far as the legality of the concept of surrogacy is concerned it would be worthwhile to mention that Article 16.1 of the Universal Declaration of Human Rights 1948 says, inter alia, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family”.

India is a party to such declarations. It will lead to breach of international conventions/ declarations. In 2012 the Ministry of Home affairs made surrogacy visa guidelines and created enough safeguards to deal with the issues of nationality of children born in India to overseas citizens as only those countries nationals can undertake surrogacy in India which allowed surrogacy.

United States of America is in a win –win situation from the ban in India as a major medical tourism will flock there and now at the international forums where India was making its presence felt will vanish from the scene altogether.

Regulation is always in the form of balancing interest and not in the forms of extreme view. It is high time to develop a positive and forward political and social vision and make laws which depict the voice of people and spirit of democracy.

Dr Ragini Agrawal | (The writer is Director – Medical & Clinical Services at W Hospital. Hers has been a long journey of many firsts. The first GyneEndoscopist of Haryana in the private sector and first Gynecologist to do operative laparoscopy like lap hysterectomy in Gurgaon, she is credited for introducing Aesthetic Gynecology & Laser in north India)