Mainstream, Vol LII, No 15, April 5, 2014
No Record of Surrogate Mother and Child at Regional and National Levels
Sunday 6 April 2014
by Sonali Kusum
Surrogacy is a $ US 2.8 billion trade across the world and India’s commercial surrogacy is a $ 2.5 billion industry in the country.1 This is as per the estimate of the Confederation of Indian Industry.
It is an admitted and well-known fact that in India surrogacy is legal in the commercial form with the Supreme Court judgment since the year 2002 in the absence of an effective binding law. The proposed law regulating surrogacy in India—the Assisted Reproductive Technologies (ART) Draft Bill 2010— is awaiting its long due enforcement.
Further, the absence of an effective binding law on surrogacy in India makes the situation grim as during the pendency of the Bill there is no mechanism or no official government- appointed body responsible for maintaining records on the issue.
The draft law on surrogacy in India, the ART Bill 2010, provides for maintaining records under its relevant provisions. There is a duty imposed on the ART clinics to maintain accurate records on the manner, technique and use of ART technologies, the individual or intending couple or surrogate mother, in respect of whom it was used.2 The ART Bill provides for maintaining and preserving records, and the setting up of the National ART Registry.3
Further, the ART Bill also provides for setting up of a National Advisory Board for Assisted Reproductive Technology established by the Central Government and State Advisory Board for Assisted Reproductive Technology by the State Government for regulating the conduct of ART procedures or treatment, including surrogacy by fertility or ART clinics, and for ensuring necessary compliance with the law.4
In addition to these, the Bill provides for the constitution of a State level ART Registration Authority5 for granting registration to the ART Clinics for their functioning6 and to exercise supervision over the ART clinics and to check any malpractice by such clinics.7 As the Bill awaits its enforcement, these provisions remain non-functional.
But despite these laudable provisions, there is no clear measure on the data or facts or figures on the surrogate children born till date at the State level and other related information.
Attempts have been made to understand the size and scheme of the large-scale operation of surrogacy as a burgeoning IVF Industry, and a brief empirical study has been conducted on the plight of surrogate mothers in South India.
A sample of surrogate mothers based in Bangalore had been studied through the interview schedule but as the issue of surrogacy is heavily guarded by privacy concerns, in order to know the correct proportion of this thriving business of surrogacy, RTIs had been filed at the regional level in Karnataka as well as at the apex national level for securing accurate and exact information on surrogate mothers and surrogate children and other incidental issues concerning surrogacy in India.
There is absolutely no information on the number of surrogate children born in Karnataka annually or the total number of surrogate children born in Karnataka till date. There is no information on the Infant Mortality Rate (IMR), sex ratio of the surrogate children born in Karnataka; and there is also no information on the total number of birth certificates issued to the surrogate children in that State. Besides, there is no concerned official government authority at the State level collecting and maintaining records on the same.
Regarding the RTI filed with the Office of the Project Director (RCH), the Directorate of Health and Family Welfare Services, Government of Karnataka replied: “No separate report of surrogate children is maintained in any of the hospitals of Karnataka, hence report of total number of surrogate child born in Karnataka and report of Infant Mortality Rate (IMR) of surrogate child born in Karnataka is not available.”
On the RTI filed with the Joint Director, Statistics, Birth and Death, the BBMP head office, Bangalore replied that there was no information on the Infant Mortality Rate (IMR), sex ratio and total number of surrogate children born in Karnataka.
Besides, on the RTIs filed with the Karnataka State Commissions, namely, the Human Rights Commission, Child Rights Commission, Women’s Commission, these Commission denied having any information on the same by summarily dispensing with the queries and stating that no information was available on the mentioned subject (surrogacy or surrogate mother or surrogate child) and thus replied that all the queries should be treated as negative.
The Karnataka State Human Rights Commi-ssion replied that “neither complaint or case relating to surrogacy or surrogate mother or surrogate child has been received and nor suomoto action has been taken up. As such no information is available and thus replies to all the queries may be treated as negative.”
The Karnataka State Commission for Protection of Child Rights replied that “no complaints related to surrogate child has been registered in the Commission and not much work has been done in the Commission on this topic”.
Thus there is no State-level official statistical record on the status of surrogate children born in India annually or in each State per annum.
Bangalore had its first surrogate child when a baby boy was born in the year 2011 to a US single parent: the boy was given birth by a surrogate mother who works in a garment factory based in Karnataka as per the official records.8 Since then Bangalore is buzzing with ART clinics functioning in the city catering to not only national but international clients and giving rise to the birth of a large number surrogate babies in the city. It may be stated that in recent times surrogacy is a booming business in Bangalore after the IT: it is popularly said that after the IT boom, it’s the “surrogate baby business boom“ in Bangalore.
Despite all these developments, there is unfortunately no data or facts and figures on the same.
However, in the recent past, the Indian Society for Assisted Reproduction has taken the initiative of collecting the data by establi-shing the National ART Registry of India which has been instrumental in collecting and publishing data related to Assisted Reprod-uction Technology carried out in India since the year 2001. But there are certain limitations in this. Firstly, this is a voluntary process as the data is submitted by the ART clinics voluntarily to the ISAR. Neither has the ISAR powers to check the authenticity and nor has it powers to enforce all clinics to submit data. Hence the NARI does not cover all the ART clinics as well as does not have all the information concerning surrogacy. Further, the last data published by the ISAR under the NARI is of the year 2006.
Correspondingly, RTIs were filed with the National Commission for the Protection of Child Rights (NCPCR), National Commission of Women (NCW), National Human Rights Commission (NHRC) at the national level in order to ascertain necessary facts and figures on surrogate mothers. However, these have also not yielded any result.
Meanwhile the NCW has informed that it “had approved one research study on surrogate mothers in Gujarat by an NGO based in Delhi and also held one Consultation on Surrogacy and ART to discuss the rights of surrogate mothers in the year 2008 but despite this the NCW has not issued any Guidelines on the same”.
It is also important to note that none of these bodies have taken suo moto cognisance of the matter even when they have the necessary statutory powers to do so in the light of the rampant legal, health and ethical issues concer-ning surrogate mothers and children.
Thus there is a serious lacuna and omission on the part of the government to maintain the necessary and accurate records as well as facts and figures on the surrogate child, particularly when surrogacy is not only legalised in India but is rampantly practised and the government earns a whopping amount of revenue from the same. Information and record-keeping must be considered by the government as the immediate recourse.
[The article is written after collecting response to the RTI filed by the author who is doing her Ph.D research on Surrogacy in India at the National Law School of India University, Bangalore. In the course of her research she found dearth of information on the same and has filed a series of RTIs to collect necessary information on the
status of surrogate children in Bangalore.]
2. Sec 22 of ART Bill 2010.
3. Section 22 (1) of ART Bill 2010.
4. Section 3, Section 6 of ART Bill 2010.
5. Section 13 (1) (2) of ART Bill 2010.
6. Section 13 of ART Bill 2010.
7. Section 44 of ART Bill 2010.
Sonali Kusum, BA, LLB, LLM, is a Ph.D Research Scholar at the NLSUI, Bangalore. She is a former Assistant Professor, School of Law, Rights and Constitutional Governance, TISS, Mumbai. She can be contacted at: firstname.lastname@example.org