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ABSTRACT
The future of commercial surrogacy is uncertain in India. While the Indian Parliament is currently considering a proposed ban on commercial surrogacy, there is strong opposition to a complete ban. Instead, it seems likely that a regulatory framework is going to be the way forward for commercial surrogacy. This paper maps the development of various proposed regulatory frameworks over the past decade, paying close attention to the form contracts drafted by the Ministry of Health and Family Welfare. In the process, suggestions are made to restructure the surrogate’s compensation, the manner of payment, the termination and remedies provisions, and the disclosures contained in the form contract, in a manner which can adequately address concerns regarding the potential of exploitation of the surrogate.
Notes
1 In 2008, the industry was reportedly worth USD 445 million. In 2011, it was estimated to be over USD 2 billion. Sayantani DasGupta and Shamita Das Dasgupta, ‘Introduction’ in Sayantani DasGupta and Shamita Das Dasgupta (eds), Globalization and Transnational Surrogacy in India: Outsourcing Life (Lexington Books 2014) viii.
2 Michael J Sandel, What Money Can’t Buy: The Moral Limits of Markets (Penguin 2012) 3.
3 See e.g. Richard A Posner, ‘The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood’ (1989) 5 Journal of Contemporary Health Law & Policy 21.
4 Baby Manji Yamada v Union of India, [2008] JT 2008 (11) SC 150.
5 Department-Related Parliamentary Standing Committee on Health and Family Welfare, The Surrogacy (Regulation) Bill, 2016 (One Hundred Second Report 2017).
6 Surrogacy (Regulation) Bill 2016, s 2(b).
7 ibid s 6.
8 Baby Manji (n 4).
9 ibid. Baby Manji cuts a neat parallel with the infamous New Jersey case of In re Baby M, [1988] 109 NJ 396 (NJ), which shocked the United States in the 1980s. The controversial custody battle between the Sterns and Mary Beth Whitehead, the surrogate, still commands a central focus in any discussion of surrogacy in the US. The Baby Manji case is India’s Baby M, though in it the Indian Supreme Court exhibited a very different approach towards surrogacy as opposed to the disapproving opinion of the New Jersey court.
10 ibid [2].
11 ibid.
12 ibid.
13 Gita Aravamudan, Baby Makers: The Story of Indian Surrogacy (HarperCollins 2014) 75.
14 ibid 76–77.
15 Baby Manji (n 4) [13].
16 ibid [5]–[12].
17 ibid [9].
18 I write “appears to” because the ostensibly objectionable aspect of commercial surrogacy is the payment to the surrogate for services rendered, which does not constitute a “medical procedure”. However, in this context, the Court’s statement has been reasonably interpreted as approval of commercial surrogacy and commercial surrogacy agreements, and not merely the medical procedure of surrogacy. See, e.g. Rama Pandey v Union of India, [2015] WP(C) No. 844/2014 (Del H Ct) (citing Baby Manji to state that surrogacy “is recognized as a lawful agreement in the eyes of law in this country”).
19 The Assisted Reproductive Technology (Regulation) Bill 2008, Preamble.
20 ibid s 2(e).
21 ibid s 34(5).
22 228th Law Commission of India Report, Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy (2009) <http://lawcommissionofindia.nic.in/reports/report228.pdf> accessed 21 February 2018.
23 ibid para 4.1.
24 ibid para 1.10.
25 The Assisted Reproductive Technologies (Regulation) Bill 2010, Preamble.
26 ibid.
27 ibid s 2(h).
28 It is worth noting that in 2009, a year before the 2010 Bill the Delhi High Court had declared Section 377 of the Indian Penal Code unconstitutional insofar as it criminalized homosexual sex. Naz Foundation v. Govt. of NCT of Delhi, [2009] 160 Delhi Law Times 277 (Del H Ct). By 2013, the Indian Supreme Court overturned the decision. Therefore, these bills were being drafted in the context of a heated national debate about the legality of homosexual relationships.
29 2010 Bill (n 25) s 34(5).
30 ibid s 34(24).
31 ibid s 34(23).
32 The Assisted Reproductive Technology (Regulation) Bill 2014, s 2(h).
33 ibid s 2(p).
34 ibid s 60(11)(a).
35 ibid ss 60(11), (13)–(15), (21).
36 ibid s 60(5)(a).
37 2016 Bill (n 5). The ban was at least in part motivated by moral conservatism. While announcing the 2016 Bill to the public for comment, the spokesperson for the committee that drafted the Bill criticized the contemporary conceptualization of surrogacy as a “luxury” item for the wealthy, who do not need it, and that recognizing so many iterations of intended parenthood “doesn’t go with our ethos”: “Cabinet approves bill to prohibit commercial surrogacy, Sushma Swaraj slams celebrities for misusing practice” The Indian Express (New Delhi, 25 August 2016) <http://indianexpress.com/article/india/india-news-india/surrogacy-bill-2016-sushma-swaraj-slams-celebrities-for-misusing-practice> accessed 12 February 2018. For more on the perspective of the Union Cabinet members on surrogacy in India, see also, ‘Surrogacy bill gets the Cabinet nod’ The Hindu (New Delhi, 26 August 2016) <http://www.thehindu.com/news/national/cabinet-clears-surrogacy-bill/article9025848.ece> accessed 12 February 2018; Aarti Dhar, ‘India to ban rent-a-wombs, limited surrogacy allowed but not for single women, gays’ The Wire (New Delhi, 24 August 2016) <http://thewire.in/61555/india-is-looking-to-ban-commercial-surrogacy> accessed 12 February 2018.
38 Parliamentary Standing Committee Report (n 5).
39 ibid para 5.18.
40 ibid.
41 ibid.
42 ibid para 5.24.
43 ibid.
44 ibid para 5.25.
45 ibid.
46 “An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given”: Indian Contract Act 1872, s 25 Explanation 2.
47 Central Inland Water Transportation Ltd. & Anr. v Brojo Nath Ganguly & Anr., [1986] AIR 1986 SC 1571 (an unconscionable contract is void as against public policy); Indian Contract Act 1872, s 23 (contract against public policy is void).
48 Margaret Jane Radin, Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts, and Other Things (Harvard University Press 1996) 142–44.
49 ibid 146.
50 ibid.
51 ibid 147.
52 Alexander Capron and Margaret Radin, ‘Choosing Family Law over Contract Law as a Paradigm for Surrogate Motherhood’ in Larry Gostin (ed), Surrogate Motherhood: Politics and Privacy (Indiana University Press 1988) (arguing that application of contract law reduces people to fungible goods, whereas existing laws regarding adoption and other family arrangements are robust enough to address the surrogacy arrangement, and focus on the interests of the child, adults and society in general).
53 Contested Commodities (n 48) 148.
54 ibid 123–30.
55 ibid 127.
56 Stephen A Smith, Atiyah’s Introduction to the Law of Contract (6th edn, Oxford University Press 2006) 213.
57 Michael J Trebilcock, The Limits of Freedom of Contract (Harvard University Press 1993) 26–27.
58 ibid 48–49, 53.
59 ibid 53–54.
60 Parliamentary Standing Committee Report (n 5) para 5.18.
61 Amrita Pande, ‘The Power of Narratives: Negotiating Commercial Surrogacy in India’ in Transnational Surrogacy (n 1) 93–98.
62 See Elly Teman, ‘Knowing’ the Surrogate Body in Israel’ in Rachel Cook and others (eds), Surrogate Motherhood: International Perspectives (Hart Publishing 2003).
63 Alison Bailey, ‘Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy’ in Transnational Surrogacy (n 1) 30. However, one interviewer noted that while many surrogates felt money was the main incentive, others she interviewed “had internalized the clinic’s teaching of altruism and believed that they were doing it for philanthropic reasons rather than financial gain”. Varada Madge, ‘Gestational Surrogacy in India: The Problem of Technology and Poverty’ in Transnational Surrogacy (n 1) 56–57. Another interviewer noted, that the altruistic gift-giver surrogate of the global North and Israeli contexts, is reconceived as the greedy gift-receiver surrogate in India. Pande (n 61) 95.
64 Bailey (n 63) 30.
65 ibid 26.
66 Parliamentary Standing Committee Report (n 5) para 4.14.
67 The Indian surrogate is generally from a poor, or lower middle-class background, and in dire need of money. The Asian Development Bank defines lower middle-class in India as those earning between USD 2 and USD 4 a day (approximately INR 120–240 per day). Asian Development Bank, ‘Part I, Special Chapter: The Rise of Asia’s Middle Class’ in Key Indicators of Asia and the Pacific 2010, 5. The majority of surrogates in three ART Clinics in Gujarat earned between INR 1000 and INR 2000 per month, putting them below the USD 2 threshold set by the ADB. In one ART Clinic, however, one fourth of the surrogates earned more than INR 3000 a month, which is closer to the INR 3660 per month lower middle-class threshold. ‘Surrogate Motherhood – Ethical or Commercial’ (Center for Social Research) <https://docs.google.com/file/d/0B-f1XIdg1JC_Ui04RmlYUkNsTFE/edit> accessed 12 February 2018. In another study, out of 52 surrogates interviewed at a clinic in Anand, Gujarat, in 2010, 20 earned a family income of less than INR 2500 per month, 19 earned between INR 3000 and INR 5000 per month and the remaining 13 earned between INR 7000 and INR 10,000 per month. Madge (n 63) 49. In yet another survey of 52 surrogates between 2006 and 2011, the median family income was INR 2500 per month. Pande (n 61) 90.
68 Bailey (n 63) 26. There are varied reports of how much a surrogate earns. Some surveys show that surrogates are paid upwards of USD 3000, i.e. INR 181,800. DasGupta and Dasgupta (n 1) x. Another study in an ART Clinic in Anand, Gujarat, showed the surrogates earned between INR 150,000 (approximately USD 2500) and INR 350,000 (approximately USD 5800). Madge (n 63) 51.
69 DasGupta and Dasgupta (n 1) x; see also Surrogate Motherhood (n 67) 47 (stating that in their survey they found an “incoherence” between the amounts quoted by the Clinic, the intended parents and the surrogate).
70 Pande (n 61) 103–04.
71 ibid.
72 Jennifer Rimm, ‘Booming Baby Business: Regulating Commercial Surrogacy in India’ (2008) 30 U. Pa. J. Int’l L. 1429, 1459–60.
73 There are some reports that there is a higher demand for surrogates who have lighter skin and more education. Surrogate Motherhood (n 67) 28.
74 Parliamentary Standing Committee Report (n 4) para 5.24.
75 Ministry of Health & Family Welfare (Department of Health Research), Government of India, Commissioning of Surrogacy – Instructions Regarding (4 November 2015) <http://www.dhr.gov.in/sites/default/files/latest%20Govt.%20instructions%20on%20ART%20Surrogacy%20Bill.pdf> accessed 26 February 2018.
76 The Assisted Reproductive Technologies (Regulation) Rules 2010, Form U, cl 3.
77 ibid.
78 ibid.
79 A useful definition of “condition” is contained in the U.S. Restatement (Second) of Contracts, s 224 (1981): “an event, not certain to occur, which must occur, unless its nonoccurrence is excused, before performance under a contract becomes due”. The Indian Contract Act has several sections dedicated to contingencies in contracts. Indian Contract Act 1872, ss 31–36. Section 32 of the Indian Contract Act provides that: “Contingent contracts to do or not to anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void”.
80 Indian Contract Act 1872, s 74.
81 Indian Sale of Goods Act 1930, s 4.
82 Posner (n 4) 28.
83 2014 Bill (n 32) s 60(10).
84 In Fateh Chand v Balkishan Das, the Indian Supreme Court held that the prohibition on penalties under Section 74 of the Indian Contract Act 1872, “…comprehensively applies to every covenant involving a penalty, whether it is for payment on breach of contract of money or delivery of property in [the] future, or for forfeiture of right to money or other property already delivered” (1963) AIR 1963 SC 1405.
85 Preeti Nayak, ‘The Three Ms of Commercial Surrogacy in India: Mother, Money, and Medical Market’ in Transnational Surrogacy (n 1) 20.
86 See e.g. Capron and Radin (n 52) 65.
87 ‘The Assisted Reproductive Technologies (Regulation) Bill & Rules (Draft) – 2010: Issues and Concerns’ (SAMA – Resource Group for Women and Health) <http://www.communityhealth.in/~commun26/wiki/images/0/0d/Sama_ART_Bill_Policy_Brief_2010.pdf> accessed 12 February 2018.
88 Parliamentary Standing Committee Report (n 5) para 5.25.
89 Ernst & Young, LLP, Call for Action: Expanding IVF Treatment in India (July 2015) 32, 34–35, <http://www.ey.com/Publication/vwLUAssets/EY-call-for-action-expanding-ivf-treatment-in-india/$FILE/EY-call-for-action-expanding-ivf-treatment-in-india.pdf> accessed 30 December 2017.
90 An embryo transfer is where the fertilized egg is transferred into the surrogate’s womb. This is a necessary precursor to the surrogate’s pregnancy. However, embryo transfer provides no guarantee of a successful pregnancy.
91 2010 Rules (n 76) Form U, cl 3.
92 ibid.
93 Again, such a forfeiture may be vulnerable to challenge under Section 74 of the Indian Contract Act 1872.
94 With a little collusion, the Assisted Reproductive Technologies Clinics can help intended parents cut their costs. The Clinic is an organization that recruits donors and surrogates, extracts the genetic material and stores it and performs the medical procedure to attempt to obtain a pregnancy. Under the proposed bills, the Clinic should be split into two – a Bank and a Clinic, performing discrete functions. However, today Clinics perform both functions.
95 Schuler A.G. v Wickman Machine Tools Ltd., [1973] AC 235; Bomi Munchershaw Mistry v Kesharwani Co-operative Housing, 1993 (2) BomCR 329 [128].
96 Under the 2014 Bill, until eight weeks have elapsed the fertilized egg that has successfully attached to the surrogate’s uterus is called an embryo; thereafter it is a foetus. 2014 Bill (n 32) ss 2(m), 2(p). For ease of reading, the term foetus is used here to denote both.
97 While this is normally the term given, recent research shows that the average is actually 268 days. And individual pregnancies can vary up to five weeks. However, for our purposes, which is to have a notional number, 280 days would suffice. Oxford University Press, ‘Length of Human Pregnancies Can Vary Naturally By As Much As Five Weeks’ Science Daily (6 August 2013).
98 2014 Bill (n 32) s 60(10).
99 Nayak (n 85) 20.
100 ibid.
101 “They [the intended parents] had said INR 250,000, but I still got about INR 10,000 every month”. ibid.
102 ibid.
103 2010 Rules (n 76) Form U, cl 3.
104 Parliamentary Standing Committee Report (n 5) para 5.24.
105 ibid.
106 Nayak (n 85) 16.
107 Larry Gostin, ‘A Civil Liberties Analysis of Surrogacy Arrangements’ in Larry Gostin (ed), Surrogate Motherhood: Politics and Privacy (Indiana University Press 1988).
108 Indian Contract Act 1872, s 29.
109 Fifty-seven per cent of surrogates in three cities in Gujarat lived in rented houses provided by the Clinic; the remaining 43% lived in their own houses. Surrogate Motherhood (n 67) 33.
110 2008 Bill (n 19) s 34(2).
111 2010 Bill (n 25) s 34(24).
112 2014 Bill (n 32) ss 2(10), 60(2)(b), 60(27).
113 ibid s 2(w).
114 Law Commission Report (n 22) para 4.2(3).
115 2014 Bill (n 32) s 60(29).
116 2016 Bill (n 6) s 4(iii)(a)(1)(III).
117 Parliamentary Standing Committee Report (n 5) para 5.60.
118 2014 Bill (n 32) s 60(2)(b).
119 ibid s 60(28).
120 2010 Rules (n 76) Form S.
121 The surrogate’s experience as an objectified vessel could be very alienating; she is vilified by society as a sex worker, and everybody she is in contact with in the surrogacy arrangement, including her own husband, views her body as an asset separate from her, leaving her little to no agency to exercise choices for herself (Nayak (n 85) 15). Moreover, some surrogates become distraught over the idea that they have sold their baby (Madge (n 63) 61 (story of Reshma)). And almost all feel grief at parting from the baby. ibid 62–63.
122 Dev is a Hindi word for god. Surro-dev is literally translated to “surrogacy god”.
123 Pande (n 61) 94–95.
124 One Clinic counselor explained her role as ensuring that the “clients”, i.e. the intended parents, do not get fooled. And so, she advises surrogates to view their work as “God’s gift to you” and cautions them against being greedy. ibid 93.
125 One surrogate, Payal, indicated that she was told about risks of death and a hysterectomy, and then she was asked to sign a one-page document. Thereafter the doctor spoke to the intended parents in English and after they left asked the surrogate to sign another document (Madge (n 63) 61).
126 2014 Bill (n 32) s 47(5).
127 Rhona Schuz, ‘Surrogacy in Israel: An Analysis of the Law in Practice’ in Rachel Cook and others (eds), Surrogate Motherhood: International Perspectives (Hart Publishing 2003) 39.
128 ibid 40.
129 Parliamentary Standing Committee Report (n 5) para 5.130.
130 2016 Bill (n 6) ss 32(1), 33.
131 ibid s 32(3)(a).
132 2014 Bill (n 32) s 60(3)(b).
133 Parliamentary Standing Committee Report (n 5) para 5.25.
134 Schuz (n 127) 39.
135 ibid 42.
136 ibid.
137 2016 Bill (n 6) ss 32(1), 33.
138 ibid s 32(3).
139 ibid.
140 Medical Termination of Pregnancy Act 1971, s 3(4)(b).
141 Law Commission Report (n 22) para 4.2(9).
142 In order to prevent harm to the surrogate, the Parliamentary Standing Committee Report recommends that there should be a limited number of embryo transplants, which should be contained in the Rules. Parliamentary Standing Committee Report (n 5) para 5.125.
143 2014 Bill (n 32) s 49(5).
144 ibid s 2(zg).
145 2010 Rules (n 76) Form J.
146 ibid.
147 MTP Act (n 140) s 3.
148 Parliamentary Standing Committee Report (n 5) para 5.97.
149 In 2010, at a fertility conference in Canada, there was a story reported of an Indian surrogate resisting the intended parents’ request to terminate the foetus after discovering that it had Down Syndrome. The surrogate said she would keep the child, but would need help with the expenses. The intended parents refused, and because of her poverty, and the fact that she was the single mother of two children already, the surrogate finally complied with the demand for an abortion. Steve Weatherbe, ‘Whose Life is it Anyway?’ National Catholic Register (10 October 2010) <http://www.ncregister.com/site/print_article/27138> accessed 12 February 2018.
150 Side effects of the drugs used in ART procedures (Fermotid, Profasi, Pubergen, Metformin, Cetrotide) include mood swings, headaches, uterine cramping and vaginal irritation. Nayak (n 85) 10.
151 The risks of a caesarian include infection of the incision or uterus, injury to the foetus and problems from anesthesia. Preeti Nayak discusses a media report of a surrogate who successfully delivered a baby, but was diagnosed with placenta previa and gestational diabetes, and ultimately had to have a hysterectomy. She only received INR 15,000 for the surrogacy (ibid 10–11).
152 2010 Rules (n 76) Form J.
153 ibid.
154 ibid.
155 ibid.
156 One of the disclosures given at a clinic in Anand, Gujarat, is provided as follows:
157 2014 Bill (n 32) s 47(4).
158 ibid s 47(5).
159 Mrinal Vijay, ‘Commercial Surrogacy Arrangements: The Unresolved Dilemmas’ (2014) 3 UCLJL 200, 230. “A ‘cooling off period’ clause in the contract for the involved parties to rethink their decision would also serve to avoid any hasty decisions and complications”.
160 One study found that currently surrogates do not even get copies of their agreement, and while they state that they understood the contract, when asked questions about particular clauses, they demonstrated ignorance of those clauses. Surrogate Motherhood (n 67) 37.
161 Parliamentary Standing Committee Report (n 5) para 5.120.
162 ibid.