Everyone knew it was coming, but when the 2016 Draft Bill on Surrogacy was finally tabled in Parliament on Wednesday, there was a sense of dismay and disbelief. If the Bill is passed in this form it could well sound the death knell for the flourishing fertility clinics in India, which have acquired an excellent reputation worldwide.

Of course, not everything is hunky-dory today. Artificial Reproductive Technology using the services of surrogacy is a grey area mainly because successive governments have allowed it to flourish in a totally unregulated manner for several decades now. As a result, along with the enormous strides our highly qualified Indian doctors have made in the field of fertility treatment and the state-of-the art clinics and labs they have established, we have an underbelly of seedy clinics, unsavory agents and exploitative practitioners.

There is definitely a need for regulation. But the large-scale banning proposed in this bill is akin to trying to cap a volcano. There is no stopping technological advancement and no government can wish away the fact that it has been possible for decades now to create babies outside the womb and to successfully implant them in the womb of a woman who has no genetic link to the embryo.

India's first in vitro fertilization baby Kanupriya alias Durga was born in Kolkata on October 3, 1978. The commissioning parent for the first Indian baby born through a surrogate several decades ago was a single man. Since then there have been rapid strides in the field of Artificial Reproductive Technology, which has grown exponentially. Indian fertility experts have kept pace with the times and have delivered thousand of babies through surrogacy across the country.

Why surrogates?

Today clinics all over the country treat thousands of patients for infertility. Sometimes they create IVF babies using the parents own gametes and sometimes when the parents do not have viable gametes (egg and sperm), they use donor gametes. Those who supply these gametes are also paid.

The logical next step of this process is, when the woman’s womb is affected, to use the womb of another healthy and willing woman to carry the baby to term.

There can be issues anywhere along the line of treatment. The basic questions are to whom should IVF treatment and surrogacy be offered, whether everyone has a basic right to become a parent, and if he or she is physically unable to have a child, does that person have a right to avail of the medical technology which facilitates this.

Myopic draft bill

At this starting point itself, the new draft bill introduces an impediment by defining who has a right to become a parent. According to the Bill only hetrosexual couples who have been in a marriage for at least five years and have proven fertility problems can access fertility treatment and if a surrogate is required then they have to identify a relative who would carry the baby out of altruism.

In today’s world, there are many socially acceptable relationships which fall outside this rigid category – single people who chose not to get married, those in live-in relationships, gay couples, divorcees, and widowed persons. These people would not have a right to access fertility services.

Foreign couples have already been banned by the Indian government refusing them entry visas for fertility tourism. Without this visa, a couple cannot take a child born to a surrogate in India out of the country. This effectively killed fertility tourism which also meant it took a large chunk out of the $1 billion a year and growing Indian fertility industry.

The bane of the blanket ban

Regulating fertility tourism was needed. Many would-be-parents came to India because the treatment was banned in some form or another in their own countries. In many European countries that are predominantly Christian, for example, it is banned for religious reasons. Babies born of surrogacy to such couple would often be stuck in no man’s land because they couldn’t be taken back to the country from which their parents came. The Indian government took a very sensible decision then and decided not issue visas to people coming from such countries.

But, there were others who came from countries like the US where surrogacy was available, but exorbitantly expensive. India has also been a safe hub as compared to countries like Indonesia were fertility procedures are completely unregulated. Indian doctors are competent and clinics are clean and more importantly there was a contract to be signed, which eliminated exploitation and blackmail possibilities on both sides.

A blanket ban on such medical tourists makes no sense at all especially when we issue visas to them for other forms of medical tourism. Instead of ensuring that background checks are done on such applicants to make sure they are not paedophiles or organ traders or people with medical problems this bill has just blotted them out altogether. Along with them, NRIs and those holding OCI cards have also been hit.

Altruistic vs commercial surrogacy

Many countries including the UK that have experimented with altruistic surrogacy have realised that this only tends to push the whole transaction underground. A woman who bears a child for another one is actually performing a service and needs to be compensated for it. If altruistic surrogacy is enforced, the commissioning parents have to find some non-legal means to pay the woman who has spent a year or more of her life trying to ensure the birth of a healthy baby or babies.

A woman must have rights over her own womb and can use it to make babies for others if she so wishes. It becomes exploitation only when she is either forced to do so by physical or emotional pressure. This can happen even in altruistic surrogacy. A poor relative, a dependent or a woman from the family in any sort of vulnerable position can also be pressurised into bearing a child for a richer, more powerful infertile couple.

It therefore makes much more sense to have a compensatory package in place with a proper contract and rules to see there is no exploitation either way. Surrogates are equally capable of blackmailing the commissioning parents who hire a known person to carry the baby.

Easy surrogacy pregnancies

I have interviewed any number of surrogates across the length and breadth of the country. Most of them come from needy backgrounds because they are the ones to whom the money they get makes a huge difference. The contracts specify they get about Rs 4 lakhs to Rs 5 lakhs for one child and more if they bear twins. They are also fed and housed and taken care of during the gestation period. Almost all of them were happy to have performed a service for childless couples and more importantly found the money they earned very useful. They built houses and paid for their children’s’ education. Most were willing to do it again as they found the experience good.

The Bill’s provisions also seem to be geared towards rural and tribal women as being exploited for surrogacy. But, a surrogate usually comes from an urban background because that is where the clinics are and she has to undergo medical checks and give her own consent as well as get the consent of her family before she is recruited. While baby traders may target rural and tribal women, they are not exploited by IVF clinics.

It has taken several decades for Indian doctors to build up expertise in this field. They have also over the years streamlined the process and established excellent state-of-the-art clinics and this is basically why India has become a destination for people from all over the world seeking fertility treatment.

Critical but unasked questions

The Surrogacy Bill has been on the cards for over a decade now. It is not as if this government suddenly found that India has become a hub for surrogacy. There have been several versions of this Bill but none have been tabled so far. Most of the previous proposals were flawed, but the present proposal is perhaps the worst of the lot because it does not even attempt to understand or address the issues surrounding fertility technology and by doing so actually denies access to a large number of people who would actually benefit from treatment.

Before this Bill is passed, several questions need to be asked and answered so that it actually becomes meaningful. There should be a filtering mechanism to weed out medically or socially unfit parents, quack doctors, fraud clinics and surrogates who are biologically unfit or are being exploited in some way. But this should be done systematically within realistic parameters. While the Bill correctly fixes the cut-off age for all those involved, it does not address other issues of background checks, the role of ART banks, the content of the contracts and most importantly the rights of the child.

Several questions need to be asked and answered. Here’s a list:

Should information about its biological parents be made available to the child at any point of time or should the "gamete" donors remain anonymous as they are now?

Should the surrogate have any rights over the child she bears?

Should agents be allowed?

What should be the language should of the contract signed by a surrogate?

How do you ensure that an illiterate surrogate understands what she is being asked to sign?

Should the parents-to-be have contact with the women who carry their babies or would that complicate matters?

Where should surrogates be housed during their pregnancy, in a surrogate home or in the home of the intending parents or in their own homes?

How do you ensure that none of the parties involved are exploited?

How important is record keeping and how can it help in case of a lawsuit?

What happens if the surrogate has a spontaneous abortion?

How are a surrogate’s health issues addressed?

Does a surrogate get insurance cover?

Such questions need to be asked and addressed properly and logically. Only then can we hope to have an excellent regulatory mechanism the likes of which do not exist anywhere else in the world.

The writer is a journalist and author of the book Baby Makers: The Story of Indian Surrogacy.