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Assisted Reproductive Technologies: For Whose Benefit?

In the last three decades, India has witnessed a proliferation of Assisted Reproductive Technologies clinics. Apart from the domestic demand, the infertility treatment services of these clinics (unregulated by any law) are attracting huge numbers of foreign clients due to the comparatively lower costs. The central government and the Indian Council of Medical Research have drafted the Assisted Reproductive Technologies (Regulation) Bill and Rules 2008 and invited comments. A critique of the draft reveals that it is inadequate in protecting the health and well-being of women (donors and receivers of the services) and children and favours the private sector providers of these technologies.

INSIGHTEconomic & Political Weekly EPW may 2, 2009 vol xliv no 1825Assisted Reproductive Technologies: For Whose Benefit?Sama TeamIn the last three decades, India has witnessed a proliferation of Assisted Reproductive Technologies clinics. Apart from the domestic demand, the infertility treatment services of these clinics (unregulated by any law) are attracting huge numbers of foreign clients due to the comparatively lower costs. The central government and the Indian Council of Medical Research have drafted the Assisted Reproductive Technologies (Regulation) Bill and Rules 2008 and invited comments. A critique of the draft reveals that it is inadequate in protecting the health and well-being of women (donors and receivers of the services) and children and favours the private sector providers of these technologies.Since the birth of Louise Brown, the first in vitro fertilised (IVF) baby in 1978, and the surge of IVF providers that followed, laws and guidelines on As-sisted Reproductive Technologies (ARTs)1 have been developed by many countries2 to regulate the practice of ART, check un-ethical practices and prevent the prolifera-tion of unsafe techniques. In India, there has been an unprecedented and unregu-lated growth of ART clinics providing IVF procedures over the years. The Indian Council of Medical Research (ICMR)3 esti-mates that there are approximately 3,000 clinics in India (2002). But, according to Thankam Varma, Medical Director, Insti-tute of Reproductive Medicine and Wom-en’s Health, Madras Medical Mission, Chennai, there are over 30,000 infertility clinics in the country, 17 in Chennai alone (Krishnakumar 2003). Surrogacy, one of the infertility “treat-ment” services offered byART clinics, has also become a huge business in recent years, cutting across national boundaries. It is estimated that the surrogacy business alone is worth $445 million in India (The Economic Times 2008). India has become a favoured destination for ART procedures due to low costs, easy access to the other-wise highly regulated technologies and easy availability of surrogate mothers and gamete donors. AnIVF cycle in the US costs around$20,000(approximately Rs 9,00,000) as opposed to $2,000 (ap-proximately Rs 90,000) in India, while in clinics in theUK, a cycle costs up to £3,500 (approximately Rs 2,80,000) (Hindustan Times 2006). Similarly, the approximate cost of surrogacy in India is Rs 10 lakh compared to Rs 25-35 lakh in theUS and there have been cases of women ready to conceive for a fee – Rs 8-10 lakh for the entire contract. It has become evident through media reports that it is generally the socio-economically marginalised women who agree to act as surrogate mothers and undergo egg donation due to the financial benefit it entails. This not only puts these already-vulnerable women in situations where their bodies may be exploited, but it also jeopardises their physical and mentalhealth, thus making them “objects of reproduction”. Regulation of these pro-cedures must be preceded by an examina-tion of the context within which it is proliferating in India.The causes of infertility, stigmatisation of the “infertile”, the subsequent resort to ART procedures, the promotion of ART, and even the nature of regulatory mecha-nisms are all subject to the social, economic and political context of our society and time. Though critical in understanding the current situation, a discussion on the aspects that influence the existence and use ofART is not within the scope of this paper. With the complex gamut of factors causing, influencing, reinforcing each other in this “infertility market”, regulation at some level becomes extremely important. The long awaited regulation has come in the form of an effort towards legislation – the Assisted Reproductive Technologies (Regulation) Bill & Rules-2008 (Draft) – from the Ministry of Health and Family Welfare (MoHFW) and the ICMR. This paper aims to present some comments on the above-mentioned draft bill, highlight the lacunae in the proposed legislation and provide suggestions in the context of the burgeoning “ART industry”. The Draft BillThe first reference toART in an official document appeared in the “Ethical Guide-lines for Biomedical Research on Human Participants” published by the ICMR in 2000. Subsequently in 2002, the ICMR and the MoHFW formulated draft guidelines on Accreditation, Supervision & Regulation of ART Clinics in India, which was later, in 2005, released as a published document. However, since these guidelines had no legal binding and the rules and regulations were not mandatory, they were not strictly implemented, resulting in an absence of any form of regulation. Recently, ICMR and MOHFW have come up with the Draft Assisted Reproductive Technologies Sama would like to acknowledge N B Sarojini, Aastha Sharma and Preeti Nayak for developing the detailed critique and thank Deepa Venkatachalam and Anjali Shenoi for contributing to the article, Beenu Rawat and Susheela Singh for providing documentation support.The Sama Team ( is with Sama Resource Group for Women and Health, a Delhi-based organisation working on the issue of ART through research and advocacy.
INSIGHTmay 2, 2009 vol xliv no 18 EPW Economic & Political Weekly26(Regulation) Bill & Rules-2008 (hence-forth referred to as the bill). It was made public(on 23 September 2008) on their web sites. Although the bill attempts to incorpo-rate many issues related to ART, it unfortu-nately carries on the vestiges of the draw-backs present in the national guidelines issued in 2005. When the title of the bill mentions the term “regulation”, it is ex-pected that such a bill will regulate the practice of ART and safeguard the rights and interests of the users, in this case women, and incorporate provisions to pre-vent misuse and malpractice, thereby making the providers accountable to the women/couples and the laws of the land. However, through the various clauses, it tends to promote the interests of the pri-vate sector providers of these technologies rather than regulate them and comes across as inadequate in protecting and ensuring the health and well-being of women and children.Over ChaptersI-III dealing with regis-tration and regulatory authorities, the bill proposes that a National Advisory Board be set up to recommend modifications in the regulations regarding permissible ART, the minimum physical infrastructure of theART clinics, guidelines for counselling, research on human embryos, and other policies on assisted reproduction. More-over, all the states are to establish state boards, who may advise the state govern-ment to constitute a registration authority, monitor its functioning and hold enquiries. The registration authorities would grant registrations to ART clinics, semen banks, and other research organisations dealing in human embryos for a period of three years, only after inspecting the premises of the applicant. Chapter IV mentions du-ties of anART clinic, which include general duties, obligation to obtain written con-sent and maintain accurate records, duties for clinics using gametes and embryos, and duties regarding Preimplantation Genetic Diagnosis (PGD) and sex selection. Chap-ter V deals with sourcing, storage and han-dling of gametes and embryos, records to be maintained by semen banks, and rest-rictions on sale of gametes, zygotes and embryos. Chapter VI mentions regulation of research on embryos, gametes, or other human reproductive material sourcing. Chapter VII elaborates on the rights and duties of patients, donors, surrogates and determination of status of the child, right of the child to information about donors and surrogate mothers. Chapter VIII mentions offences and penalties and Chapter IX covers certain miscellaneous provisions. Semen Banks Currently, semen banks play a peripheral role in providing donor semen for couples, which is sent directly to the ART clinics. A number of clinics have an in-house semen bank, providing all the services under one roof. The bill in its current form hands over a substantial part of managing and running of the ART process to semen banks without providing any rationale. Accord-ing to Clause 26 (1), the collection, screen-ing, storage and handling of gametes will be done by a semen bank.Moreover, se-men banks can also advertise and source surrogate mothers to couples/individuals seeking surrogacy services. Also, the bill states that a semen bank should register and operate as an independent entity. Both these clauses demand not only a big “why?” but also an equally important“how?”It is evident that most semen banks are not currently equipped to carry out these tasks assigned to them by theICMR. It is also well known that the process of oocyte retrieval is completely different from sperm donation – it is an invasive proce-dure requiring ovarian stimulation with hormones and must be conducted in a clinical set-up under proper medical su-pervision. Without clear directions re-garding mandatory equipment and per-sonnel in the semen bank, the bill does not make itself clear on how they are going to equip themselves for these responsibili-ties. More importantly, it does not lay down any clauses specifying who can open and run a semen bank – the qualifi-cations and background of the person and the team necessary to run it – as has been specified forART clinics. In the declaration (under the formforregistration/renewal of registration of semen banks, FormA1) too, while on the one hand the person ap-plying for registration of the bank has to declare that the bank will operate inde-pendently of any ART clinic, in the very next point one must declare that the per-son must explain the “…Act and Rules to all employees of the ART clinic in respect of which the registration is sought”. Keep-ing in mind the significant duties given to the semen bank, the bill does not ade-quately provide for the inspection and monitoring/regulation of semen banks. Though the attempt made to prevent ART clinics from sourcing the donors and sur-rogate mothers is praiseworthy by hand-ing over this function to semen banks, the MOHFW/ICMR has just replacedoneagency by another. The issue,however, remains unresolved. Although the bill envisages separation of the semen bank and the ART clinic (Clause 26(2)), to what extent this would be possible is debatable in view of the operational realities and the contradictions within the form for registration of semen banks (Form A (1)), as has been pointed out before. Though there are both advan-tages and disadvantages with the segrega-tion, the main question is whether it would really be possible to implement it. Currently, manyART clinics have their own semen banks and delinking the bank from the clinic may only mean that the bank would be registered separately but continue to function in the same way. Proper protocols, regulatory mechanisms and accreditations are necessary in order to monitor the practice of the semen bank. The bill stipulates that the semen bank should identify a responsible staff member from the semen bank and he/she will take the donor to the clinic that would under-take that they do not disclose the identity of the donor (Clause 20(3)).When a semen bank receives a request from an assisted reproductive technology clinic for a donor oocyte, a responsible member of the staff of the semen bank will accompany the particular donor to the Assisted Repro-ductive Technology clinic, and obtain a writ-ten agreement from the authority designated for this purpose by the clinic, that the clinic shall, under no circumstances (except when asked by a court of law), reveal the identity of the donor to the recipient couple or indi-vidual or to anyone else; the clinic shall also ensure that all its staff is made aware of the fact that any step leading to disclosure of the identify (i e, name and address) to the recipient couple or individual or to anyone else, shall amount to an offence punishable under this Act.The purpose of this whole exercise is not clear. Would the donor be taken to the
INSIGHTEconomic & Political Weekly EPW may 2, 2009 vol xliv no 1827clinic only to obtain a written agreement on the donor’s anonymity? With every new player being added in the process of donation, the risk of breach of the donor’s identity keeps getting higher. Moreover, such convoluted procedures only compli-cate situations where the clarity of roles of the ART clinic and the semen banks gets diffused. Retrieval of OocytesThe provisions regarding oocyte retrieval and donation bring up a number of questions and concerns. According to Clause 26 (9) If more than fourteen (14) oocytes are re-trieved from the donor at one occasion, they shall not be used for more than two recipi-ents thus ensuring that at least seven oocytes are available for each recipient. Retrieving a large number of eggs (like 14) requires hyper stimulating the ovaries by injecting hormonal drugs, which often entails serious medical complications for women. Moreover, the retrieval procedure in itself is highly invasive, and may result in serious harm to the woman undergoing it. Allowing the retrieval of such a large number of oocytes only shows the apathy of the bill towards the women who under-go the procedures and their health. The women generally follow the recommenda-tions of the IVF providers who make them undergo these cycles over and over again, which may be due to the low success rate of these techniques. The many questions that this clause raises are: by what mechanism has the figure 14 been arrived at? How has it been decided that a woman’s oocytes can go to two women and not to a higher number? Does this also mean that if less than 14 oocytes are retrieved, they can only be donated to one recipient because if given to a second recipient, she will receive less than seven? The fate of the spare oocytes must be spelt out clearly. Fourteen oocytes is a large number and there is a chance that the spare ones may be routed for research or for egg sharing, which should be monitored. It also raises deeper concerns regarding the number of cycles that a woman can undergo while donating. Thoughthe number of times for which a woman can donate oocytes has been limited to six, Clause 26(8) says that “No woman shall donate oocytes more than six times in her life, with not less than a three-months’ interval between the oocyte pick-ups”. However,the maximum number of cycles (which may be six or more) has not been mentioned. Also the mechanism to record and monitor the number of times a woman is making donations has not been men-tioned. The three-month interval stipulated between the donations is inadequate for a woman to start with the hormonal injec-tions again and undergo another oocyte retrieval. This interval should be increased. Moreover, the potential of exploitation of women for their eggs is as great as for theirwombs. Since the sourcing ofbothegg donors and surrogate mothers is through semen banks, the risk of commercialisa-tion is similar. The flow of payment to the egg donor is not quite clear in the bill. The clauses, which seem to be more harmful to the oocyte donors’ health coupled with the complicated payment process,putthem in a vulnerable position. Interestingly, the specification regard-ing number of oocytes to be retrieved is only in case of donors. There must be some specifications for the number of oocytes retrieved from women undergoingIVF or women who agree to share their eggs. In the context of egg-sharing, which is often offered in lieu of a subsidy in the IVF pro-cedure, there are chances that this will encourage the providers to retrieve more oocytes, thus putting women under greater health risks, as larger quantities of ovula-tion inducing drugs have to be administered on the woman sharing her eggs to maximise the chances of producing “enough eggs”. In the context of a large number of clinics providing the egg-sharing programme, the bill should spell out clearly the number of eggs that can be retrieved for egg-sharing. Only ‘Small Risks’The bill states that “ART carry small risks both to the mother and the offspring” (Rules 6.13) and mentions the risks for women which include multiple gestation, ectopic pregnancy, spontaneous abortion and Ovarian Hyper Stimulation Syndrome (OHSS). It is appalling that the MOHFW/ICMR has described life-threatening risks like multiple gestation, ectopic pregnancy and spontaneous abortion as “small risks”. It only reflects the extent of concern for women’s well-being in a document that actually seeks to regulate these technologies and ensure their safe delivery. In fact, these risks further entail serious implica-tions, which have not been mentioned in the bill. For example, multiple gestation pregnancies can lead to toxemia, early labour, placental dysfunction, cesarean sections, increased stillbirth, late miscar-riages, low birth weight babies and peri-natal mortality. The other risks include prolonged hospitalisation (and the costs associated with it) as premature babies are kept in intensive care for longer periods. Similarly, while the bill recommends foetal reduction for multiple gestation, it does not mention the morbid risks of this proce-dure which include: uterine bleeding, infection, premature labour and loss of allfetuses. The bill should emphasise keeping the instance of foetal reduction to a minimum, for which the number of oocytes or embryos to be transferred must be restricted to two irrespective of the age of the women, the nature of embryos/oocytes (fresh or frozen), etc. Moreover, it states that foetal reduction may be carried out in cases of multiple pregnancies, “…if so instructed by the pa-tient…” (Clause 23(5)), thus once again putting the onus of the procedure on the couple. Surprisingly, the bill itself quali-fies this procedure as problematic in an-other section. Risks associated with ec-topic pregnancy include internal bleeding, pelvic and abdominal pain, scar tissue for-mation leading to problems in conception in the future, risk of future ectopic preg-nancies, and even shock and death. On the one hand, while the bill enlists ectopic pregnancies as a “small risk”, it contradicts itself by mentioning that the risk of an ectopic pregnancy could be as high as 5%, and that ofOHSS could range from 2 to 8% (Rules 6.13.3). Systematic analysis of the available medical literature reveals that many of the physical side effects of ART are direct by-products of drugs like Pergonal and Clomiphene that are used to stimulate the ovaries to produce eggs. Severe forms of OHSS may lead to renal impairment, liver dysfunction, thromboembolic phenomena and shock. There are also increased risks of pregnancy loss, premature delivery, infant abnormalities, pregnancy-induced hypertension and haemorrhage. Complica-tions may also occur during egg harvesting
INSIGHTmay 2, 2009 vol xliv no 18 EPW Economic & Political Weekly28procedures. The removal of eggs through an aspirating needle entails a risk of bleeding, infection and damage to the bladder, or a blood vessel and to the bow-el. The bill fails to convey the extent to which the drugs used and procedures performed duringART may potentially harm the health and well-being of the women undergoing them. This attitude is also reflected in the consent forms, where adequate information on the implications of OHSS (FormD, consent form, to be signed by the couple for IVF andICSI) is absent. While the document mentions risks for the women, risks to the offspring are not mentioned at all. According to a study conducted between May 2001 and April 2004, seven children between the ages of 5 and 21 months conceived byART present-ed with breast development and/or pubic hair and were referred by their paediatri-cians to the Division of Paediatric Endo-crinology at the New York University School of Medicine for evaluation of pos-sible precocious puberty. Patients were evaluated for the possibility of centrally mediated precocious puberty and pseudo precocious puberty, with a possible ovarian or adrenal origin. The clinical presenta-tion in these infants raises awareness that an altered intrauterine hormonal milieu may affect the foetal and infant stages of children conceived byART (Marcos et al 2005). A recent news item mentions that the risk of birth defects is two to four times higher in babies born with the help ofART (Grady 2008). A recent article announcing the birth of the firstIVF twins at the All India Institute of Medical Sciences (AIIMS), revealed that the mother had gone into pre-term labour, underwent an emergency caesarean and that the children weighed only 1.4 kg each (Hindustan Times 2008). The normal birth weight of twins ranges from 2 to 2.5 kgs and those born through IVF are clearly underweight. Unexpected complications and low weight at birth are not uncommon inIVF deliveries and defi-nitely have an adverse impact on the health of the offspring. Another research study compared around 1.2 million single-ton births with 8,229 singletons conceived byART in Norway. It was found that chil-dren born byART were around 70% more likely to be premature (born before 37 weeks) and more than twice as likely to be born before 32 weeks. Children born by IVF and other methods were also 26% more likely to be small for their gestation-al age (The Guardian 2008). Married and UnmarriedThough the bill makes “married” or “un-married” couples eligible for ART, it does not include people who are not heterosexual. It clearly defines “unmarried couple”asa man and a woman, both of marriageable age, living together with mutual consent but without getting married (Clause 2(w)) and “couple”, as persons living together and having a sexual relationship that is legal in the country/countries of which theyare citizens or where they are living in (Clause 2(e)). In fact, “couple”has been defined in such a way in the bill that homosexual couples from other countries (where same sex relations are legal) can avail ART services from India, but not Indian homosexuals. Under Section 377 of the Indian Penal Code (IPC), “carnal intercourse against the order of nature”, non-procreative sexual acts are criminalised and this law is used to criminalise homo-sexuality. Therefore, Indians who openly identify themselves as homosexuals are not eligible. Interestingly, some of the clinics regularly provide these proce-duresto gay couples from abroad. Forex-ample, Rotunda – the Centre for Human Reproduction in Mumbai was recentlyin the news for successfully delivering a child for an Israeli gay couple through surrogacy. The centre has seen 40 same sex couples since 2005 and Gautam Allahabadia of Rotunda says, “We receive frequent re-quests from same sex couples from France, Spain and Sweden” (Rajadhyaksha 2008). As per both the above-mentioned defi-nitions, only heterosexuals, irrespective of their marital status, are eligible to ac-cess these technologies in India. Even the consent forms require the signatures of husband and wife, and only at some places does the bill mention signature of the partner and provide ART to heterosexual married couple as a single entity. The entire document is structured around the heter-osexual, married couple. In doing so, it provides an articulation of this heteronor-mative institutional structure and the nor-mative distribution of power therein. The bill describes a woman who may notbe able to have a biological child, as a “patient”. This is extremely offensive, regressive and anti-women. It also uses the term “client” for persons accessing these technologies. Words such as patient have also been used in the sense of cate-gorising them in specified groups for referral to different levels of infertility ART clinics. In the case of only male factor infertility, the couple is referred to as “patient”. The contract between the semen bank and the patient defines patient as “an individual/couple who has approached the bank for availing the services of a sperm/oocyte donor or as surrogate” (Form-S (2)). This would mean that only those individuals/couples requiring donor gametes or surrogate for conception would fall under the category of “patient”. The various consent forms, specially the agreement on surrogacy, stress spousal consent. Such requirements of “consent” formally establish the heteronormative principle of the husband’s right to control the wife’s body. This requirement is un-reasonable as it takes away the right of the surrogate over her own body. This should be reconsidered by theMOHFW/ICMR. It isinteresting to compare this with the Medical Termination of Pregnancy (MTP) Act, 1971, where the consent of the “spouse” or the “father” is not a require-ment, and the pregnancy of an unmarried woman is considered sufficient evidence that it would involve the risk of “grave injury to her physical or mental health”. Inother words, the law is willing to recognise a woman’s agency in deciding not to have a child, but when it comes to the right to have a child, a woman’s agencymust necessarily be subject to that of her husband’s. Perhaps this has to do withthe inherent belief that a pregnancy outside of “wedlock”issome-thing that needs to be avoided soasto maintain the legitimacy of reproduction only within marriage.Rights of the Surrogate The bill must ensure that the intended parents understand and agree that the surrogate has a right to physical integrity and bodily autonomy, i e, she cannot be forced to abort the foetus, go through foetal reduction or be made to follow a certain
INSIGHTEconomic & Political Weekly EPW may 2, 2009 vol xliv no 1829diet and lifestyle. These decisions are for the surrogate, and no one else, to make. TheMTP, 1971 Act guarantees women in India the right to abortion, while inter-national human rights legislation guaran-tees her physical integrity. However, no sex-selection should be allowed even with the consent of the surrogate. The surro-gate’s right to privacy and physical integ-rity should be acknowledged in the bill. Screening: Screening for genetic parents/intended couple has not been emphasised adequately. It has been mentioned in the contract between the semen bank and the surrogate (Form-R (2)), but has not been listed under the roles and responsibilities of the semen bank. Moreover, in FormJ, the surrogate needs to declare that she and her husband have not had any extra-marital relationship in the last six months. Such provisions are not only unreasonable but also pointless as this impinges on the sexual life of the woman. Also there seems to be an assumption that HIV can be ac-quired only through “extramarital” rela-tionship. Asking for a declaration not only reflects a narrow and stigmatising attitude towardsHIV as a disease but also an encroachment on the sexual lives of the individuals. Moreover, she may not be aware of her husband’s extramarital rela-tionship, or she may not have a husband at all. Surprisingly, there is no mention of the requirement for the commissioning couple to undergo screening tests for HIV or for any other infectious disease.The Contract: The bill does not mention the details of administration of the con-tract between the surrogate and the cou-ple: who makes the contract and monitors that it is not breached? How would the money transaction actually take place? In case the couple directly hires the surrogate, how would the semen bank come into the picture and what would be the signifi-cance of the surrogate’s contract with the semen bank? There might be cases when the child is unwanted by the intended parent(s). The bill should clearly spell out what happens in such a situation. The document does not carry a much-needed elaboration on the money transactions between the surrogate, the commissioning couple and the semen banks – a key problem area. Since the thrust of the regulation is to regularise the commercial angle in the “ART industry”, this aspect should bead-dressed. First, there is also no clarity on the role of the semen banks with regard to financially compensating the surrogate, as has been explained before. Second, the Agreement for Surrogacy (Form J) states that “I have worked out the financialterms and conditions of surrogacy withthecouple inwriting”.Itdoes not mention how this would becarried out. It appears from this statement that the couple and the surro-gate will mutually decide the amount. But, considering that the surrogate in most of the cases is from a poor socio-economic background, her say in deciding the amountremainsquestionable. In case the surrogate is not in the capacitytochalk out the financial details, by whom would this process be facilitated? Since the semen bank has a role in sourcing the surrogate mothers, they may play this role too, which is not a desirable situation either since the semen bank may itself be in-volved financially in this agreement.Health Insurance and Legal Aid:The surrogate must be reimbursed all her ex-penses incurred due to the pregnancy in-cluding those spent on travel to the doctors, medical check-ups, etc. She should also have medical and life insurance, paid by the intended parents/parent, and assured access to free legal aid in case any conflicts should arise during the surrogacy arrange-ment. Health insurance of 10 years in spe-cificHIV context should be included as a part and parcel of surrogacy contract.Guardianship: Clause 34 (19) states that in the case of foreign couples commis-sioning a surrogacy, a local guardian will be appointed for the surrogate mother. It is highly unacceptable that an adult wom-an be under the supervision of a guardi-an, merely because she agrees to carry someone else’s child. Also, maintenance of the anonymity of the surrogate comes under question with the presence of a local guardian. Number of Attempts/Surrogacies:The bill mentions that “No woman shall act as a surrogate for more than three successful live births”, (Clause 34(5)) irrespective of the number of earlier pregnancies although the medical risks of frequent childbirths without adequate spacing are well known. The health risks associated with higher and frequentIVF cycles has been adequately emphasised in an earlier section of this critique. Restricting surro-gacies in terms of successful live births is futile if the number of cycles is not speci-fied. The bill allows three successful live births along with permitting three Em-bryo Transfers (ET) for a particular couple. Therefore the surrogate may legally un-dergo nine cycles, which may result in hazardous consequences for her health. Moreover, she may be donating oocytes and may also have had children of her own. These, coupled with a lack of record keeping and a subsequent failure to trace a woman’s reproductive history, may have hazardous consequences on her mental and physical (especially reproductive) health. At the very least, the number of pregnancies that a woman has already had must be considered while restricting the number of surrogacies. Birth Certificate: According to Clause 35 (7) “The birth certificate of a child born through the use of assisted reproductive technology shall contain the name or names of the parent or parents, as the case may be, who sought such use.” This implies that the name of the couple seekingART or commissioning the surro-gacy will be written on the birth certifi-cate. The MOHFW/ICMR should consider granting parental status to the surrogate mother. When a woman gives birth to a child, the birth must be officially docu-mented and she must be recognised as the natural parent of the child born to her. This can be followed by a transfer of par-enthood to the intended parents, either through adoption or another system devised for the purpose. Thus the birth certificates must have the name of the genetic/gesta-tional surrogate. Moreover, the bill repeat-edly assumes that the intended parents are the genetic parents in surrogacy cases. For example, Clause 34(10) states that “The birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of the genetic parents/parent of the baby”. If the genetic parent of a child born through surrogacy is a donor,
INSIGHTmay 2, 2009 vol xliv no 18 EPW Economic & Political Weekly30then would the birth certificate have the name of the donor?Rights and Welfare of the ChildThe Bill states that, A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock, with the consent of both the spouses, and shall have identical legal rights as a legiti-mate child born through sexual intercourse (Clause 35 (1)).It is unclear as to why there is a separate listing of the legitimacy of a child born through ART to married, unmarried and single men and women. Moreover, the definition of legitimacy is premised on the assumption that only children born within wedlock are legitimate. Such an assumption is problematic firstly because a child should not be accorded legitimacy based on her/his birth within or outside “wedlock”. This essentially violates the right of a child to live a life of dignity and respect. The bill makes provision for the child to seek information about donors and surro-gate mothers on attaining 18 years of age. But at the same time it excludes informa-tion regarding personal identification and only in some cases (medical reasons) al-lows disclosing the information with prior consent of the donor(s) or surrogate. Clause 36(1) states that “A child may, upon reaching the age of 18, apply for any infor-mation, excluding personal identification, relating to his/her genetic parents or surrogate mother.” But, since the semen banks, the ART clinics and the central database of the ICMR (where the details of the records will be transferred after expiry of 10 years) will keep the records of the donors and the surrogate mothers, it is not clear where the child should apply. By the time the child is 18 years old, the details would be with the Central Data ofICMR. It also falls short in the measures taken to ensure the welfare of the children born throughART. In fact there is no section, which talks about the welfare of the child. The only points mentioned in this regard are those granting legitimacy to the children born throughART and the right of the child to have non-identifying information about his/her genetic parents. Special measures need to be taken to ensure the welfare of the child and that the intended parents are of appropriate age and would be able to raise the child till he/she reaches adulthood. The ‘Lost’ OptionThe bill does not adequately emphasise adoption. Considering that these technol-ogies do not “treat” or cure infertility, and keeping the potential risks for the mother and child in mind, a responsible legisla-tion regarding infertility and ART must encourage adoption and present it as a course of action as significant asART. The bill mentions adoption only twice. It also mentions that “…Further treatment for the unresponsive couples will then consist of counselling and an in-depth investigation, leading to the use of ART – failing which, adoption may be the only alternative…” suggesting that adoption is an option if and whenART fails for a particular couple. This clearly demonstrates the endorse-ment of the desire for a “biological” child or “genetic make” in an official document. Eugenics through Donor MatchingAccording to Clause 20(4), Either of the parties seeking assisted repro-ductive technology treatment or procedures shall be entitled to specific information in respect of donor of gametes including, but not restricted to, height, weight, ethnic-ity, skin colour, educational qualifications, medical history of the donor, provided that the identity, name and address of the donor is not made known. Similarly, the couples are entitled to know the ethnicity and educational quali-fications of the donor and details like reli-gion, education and monthly income of the donor must be recorded in FormM (Information on Semen Donor (4, 6, 7)). FormM2 (Information on Surrogate (8, 9)) requires education and occupation of the surrogate and her spouse (if any), religion and monthly income. Moreover, current practices indicate that surrogate mothers and donors are chosen based on their caste, religion, skin colour and attractive physical features. A recent article in the Times of India stated that “Traits such as fair skin, lighter hair, blue/green or light eyes and highIQ levels are greatly in demand by the Indian couples coming to the fertility clinics”(Outlook2008). Unfortunately, the bill too supports these trends by asking for the surrogate’s colour of skin, hair, eyes (Form M2 (34, 35, 36)), which is completely pointless since her oocytes would not be used in the procedures. As she only gestates the child, it is unnecessary to record her genetic characteristics. Giving significance to these characteristics is unnecessary since they do not have a bearing on the genetic com-position of a person at all. Revealing particular characteristics of the donor to the intended parents and allowing them to choose donors based on those charac-teristics ushers in a number of debates. They only encourage eugenic tendencies and lead to discrimination against people belonging to particular religions, castes and with low educational and economic status. Contradictions The document lacks clarity at many levels and uses ambiguous language, which makes effective implementation difficult. More-over, different parts of the bill contradict each other leaving certain critical ques-tions unanswered. Given below are some of the examples of such contradictions. First, regarding the issue of making payment to the surrogate, Clause 26 (6) states thatA semen bank may advertise for gamete do-nors and surrogate mothers, who may be compensated financially by the bank. But according to Clause 34(2) “…the surrogate mother may also receive monetary compen-sation from the couple or individual, as the case may be, for agreeing to act as such surrogate.”Further, the Form of Contract between the semen bank and the surrogate (Form-R2 (4)) mentions that …the consideration for the surrogacy is to be paid by the parent(s) and the bank will not be responsible for any demand by the surro-gate in the form of compensation. The bank shall not be responsible for payment to the surrogate for any other expenses incurred during the surrogacy period. It is therefore not clear from this who is actually compensating the surrogate. Is it the bank or the couple/individual? Second, the bill is unclear about the venue of the actual oocyte retrieval and screening process – whether it is at the semen bank or the ART clinic. Clause 26 (1) states that “the collection, screening,

December 2008 from

Fears of Complications with IVF Babies Dismissed in New Study”, The Guardian, 31 July 2008. Retrieved on 5 December 2008 from

Rojas-Marcos, Patricia Martin, Raphael David and Brenda Kohn (2005): “

Pediatrics, Vol 116, No 1, July, pp 190-94.

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