A draft of the Surrogacy (Regulation) Bill was released last month. It adopts an approach that reveals the depth of the bigotry that permeates Indian society. Apart from problems with the draft itself, the metadata around the draft highlights several broader issues that plague law-making processes.
Commercial surrogacy started in 2002. The Indian Council for Medical Research framed guidelines, which were released in 2005. The necessity for framing legislation was acknowledged in 2007 when the first UPA government contemplated regulating Assisted Reproduction Technology (ART), a catch-all phrase that covers surrogacy among other things. In January 2008, I wrote: "The government is believed to be planning to draft laws to address this. Forgive me for wondering how many years that legislation will take to draft and pass, and whether it will meet the needs at all." (http://www.rediff.com/money/2008/jan/05surrogacy.htm)
Well, it's 2016 and the draft Surrogacy (Regulation) Bill is an emasculated document that deals (very badly) with only one of the several issues arising from ART. The delay and the partial and inadequate addressing of these issues are both typical of Indian lawmaking. This mirrors similar delays in drafting legislation pertaining to insurance regulation, bankruptcy, power sector open access, drone licensing, cyberlaws; the process of lawmaking always lags the necessity to make and review laws.
Circa 2007-08, there were no clear estimates as to the size of the surrogacy industry. But it was a thriving example of labour arbitrage (pun intended). There were many ART clinics operating, including several in Anand, Gujarat, which catered specifically to overseas parents. But the industry was clubbed together with other medical procedures as one of many revenue streams for medical tourism. There are still no clear estimates of size. Estimates range from $500 million per annum upwards to $2.3 billion per annum. The size of the entire medical tourism industry is supposedly $3 billion. It's hard to believe surrogacy is such a major contributor. But then again, surrogacy does involve 10-12 months worth of back-and-forth.
One official estimate is that about 2,000 foreign surrogate babies were delivered per annum until foreign surrogacy was banned in 2015. Apparently only 400 domestic surrogate babies are born every year according to this same estimate. Another estimate is that there are 2,000 infertility clinics in India, implying there could be many more domestic surrogate babies though not every clinic offers surrogacy.
Each overseas case used to cost about $30,000, which is orders of magnitudes cheaper than in a first-world country. Still 2000 multiplied by $30K adds up to about $60 million, which is much less than the lower estimates. Perhaps the 2.3-billion estimate includes hotel bills, airfares, etc.?
The estimates are also low for legal reasons. Cross-border "baby-running" and "egg-trafficking" add massive under-the-table costs. To avoid the law, it is convenient for an NRI mother to pretend to be pregnant herself and to "deliver" the baby in India. This means fees for surrogacy are off the books.
So, we have a law drafted about 14 years after the industry started operating and we lack accurate estimates of industry size. The draft proposes to shut down all commercial surrogacy without any apparent thought as to what happens to workers and facilities.
It places blanket bans on egg donation. It only recognises the parental aspirations of people, who have been in a vanilla marital relationship for at least five years. Singles, gays, lesbians, transgenders are all denied a shot at parenthood. The surrogate must be a "close relative", presumably excluding those who lack close relatives as well.
The trickier aspects of adoption and abandonment are also nuked by the Bill which apparently just proposes a 10-year jail sentence for abandonment. Does the baby become a ward of the state while the parents, who have abandoned her, are serving the jail sentence?
Forgive me for wondering once again, when and if this Bill will pass and indeed, I hope that it doesn't pass. This 15-year saga should be a case study for those who wonder why the processes of Indian legislation are inefficient.
Twitter: @devangshudatta
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