Across cultural, physical, and political boundaries is the human desire to imprint the fabric of society by producing another being in one's likeness. This desire to reproduce encompasses the innate need for companionship and love. Infertility is not simply a medical condition for many, it causes emotional pain, loss of self-esteem, and breaks up relationships .The yearning for family and the advancements in the field of reproductive technology has encouraged many to travel across border to fulfill their dream of having a child of their own. Fertility tourism or reproductive tourism can be defined as a form medical tourism that signifies the willingness to travel for availing fertility treatment procedures in other countries where there is a less stringent regulatory framework governing such procedures or where the sought service is available at comparatively lower cost, or both. This phenomenon gained momentum with the advent of assisted reproductive technology (hereinafter referred to as 'ART') and its increasing usage around the globe since 1970's. ART is a practice that facilitates fertility treatment by use of modern reproductive technology. In the past few years, reproductive tourism has expanded rapidly as more and more persons suffering from infertility related problems or individuals otherwise denied (homosexuals and unmarried persons)the use of such technology by the law in their local jurisdiction, travel across borders either to undergo reproductive treatment procedures such as In-vitro fertilization, or in search gamete donors (sperms donors and eggs donors) and surrogate mothers.
The existing legal restrictions on the use of ART in various countries like Italy, Germany, Canada and many other, has forced intended parents to indulge in circumvention fertility tourism. The availability of prohibited treatment options fueled by lower prices and lax governmental regulations have made some countries like Israel, India, USA, Spain and Denmark attractive destinations for fertility tourists . India currently is one of the most preferred destinations for commercial surrogacy. High quality health care, well-trained doctors and low medical costs make India attractive to would-be parents. The lower cost of services coupled with the relative lack of laws regulating use of reproductive technology has created a booming baby market in India. India is regarded as the hub of international commercial surrogacy market. Perturbed by the exponential growth or baby market and large scale criticism, the Indian Council of Medical Research issued guidelines in 2005, to regulate and supervise fertility services; however these were not legally binding. In 2009 the Law Commission of India published its 228th report on 'Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to Surrogacy' reflecting on the need to regulate ART services and curb the booming baby market growing exponentially in India. In the meantime in 2008 on the behest of the Union Ministry of Health and Family Welfare the ICMR submitted a draft of The Assisted Reproductive Technology Regulation Bill, 2008(hereinafter referred to as 'Bill').The Bill has not yet been presented in the parliament. Several loopholes in the ART draft bill have been pointed out by women's rights organisations, queer rights, human rights and legal rights organisations across the country, it has been demanded that required changes should made before the draft is presented in the parliament. Following the large scale criticism many changes were introduced in the Bill in 2010.At the same time the Ministry of Home Affair issued a notification in 2011, limiting the use of ART by only heterosexual married couples visiting India on the basis Medical visa, which has raised a whole legal controversy concerning reproductive equality. In the light of the above mentioned concerns this research study intends analyse the various legal issues and challenges that exist due to current void of a comprehensive legal framework to regulate the use of ART with special reference to commercial surrogacy in India.
Objective of Study
The object of this paper is to look into the various legal issues that need to be addressed in the present situation of exponential growth of ART clinics providing fertility services in India and its role in the increasing commercialization of such procedures in the backdrop of the lack of a legal framework for regulating this increasingly expanding baby market in India. As highlighted above this study intends is to critically analyze issues related to the rights of the commissioning parents, surrogate mothers, gamete donors involved in ART procedures and the ambiguity related to the identity and nationality of the children being born out of cross border commercial surrogacy arrangements. Further, the existing guidelines and regulations will be analysed in order to understand whether it is necessary to incorporate a concrete legal framework to govern and regulate ART in India, for the protection of rights of the parties involves and identity child commissioned by surrogacy agreements.
Scope of Study
The scope of this paper is restricted to the study of the phenomenon of fertility tourism in India. This paper intends to trace the reasons behind the increasing trend of fertility tourism in India and the issues and challenges that need to be addressed with regard to the increasing commercialization of ART in India. It further intends to make a comparative analysis of the laws regulating the use of ART in the other countries around the world in order to understand what triggers fertility tourism across the globe. The Indian situation would be discussed in details in order to understand whether there is a need for and effective legislation to govern the use of ART procedures and regulate the booming market in India. The rights and the status of the child being born out of such procedures, the rights of the intended parents, the rights of the gamete donor and the surrogate mother in the context of commercial surrogacy would be critically analysed. Further, the issue of whether reproductive justice and reproductive equality is being denied to the Indian surrogate mothers in the global commercial surrogacy market would be discussed. This paper also intends to understand the need for a balanced legislation to be framed in order to balance the conflicting interests of all the parties involved.
Scheme of Chapterization
The first chapter 'Growth of Fertility services and the Rise of fertility Tourism' briefly traces the growth of reproductive technologies and phenomenon fertility tourism
an over view of existing regulations on use of assisted reproductive techniques in countries around the globe.
the increasing commercialization of assisted reproductive technique in india: legal issues and challenges.
the need for effective legislation to regulate the booming market of commercial surrogacy in india.
conclusion and suggestions.
The methodology which the researcher proposes to adopt is doctrinal. The researcher intends to critically analyze the issues related to the use of the assisted reproductive technologies in India and the rise of fertility tourism .Reliance will be placed on legislative provisions of various countries regulating ART procedures, case laws, and other authoritative texts and scholarly works on the subject matter.
I. GROWTH OF REPRODUCTIVE TECHNOLOGY AND THE RISE OF FERTILITY TOURISM
Infertility is certainly a problem with a global dimension. The increasing cases around the world of both men and women suffering from infertility, and the inherent human desire to procreate generates a strong demand for fertility services that has increased manifold in recent years. People are choosing to have children later in life, which often complicates reproduction, and necessitates reliance on reproductive technologies. In addition to that, with the relaxation of the traditional restraints on unconventional parents, gay, lesbian couples and single parents are also seeking medical assistance in creating families on their own terms with the help of reproductive technology. Technologically assisted reproduction is generally regarded as a more desirable and feasible option than adoption, as in the latter case 'the links between an adopted child and the social parent become a public, vocal, and visible admission of infertility. With assisted reproductive technology, the disruption of the fundamental biological triad of mother (womb), father (semen), and child (foetus) can be glossed over. For both men and women, this may demonstrate IVF's validity over adoption in making them 'real' and 'proper' parents.
1.1. Definition of Reproductive Technology
Reproductive technology encompasses all current and anticipated uses of technology in human and animal reproduction, includes assisted reproductive technology, contraception and other such use of technology to facilitate or control the functioning of human and animal reproductive systems. Assisted reproductive technology (hereinafter referred to as 'ART') is method used to achieve pregnancy by artificial or partially artificial means. It is a reproductive technology used primarily for infertility treatments. However, some forms of ART are also used with regard to fertile couples for genetic reasons .Examples of ART include in vitro fertilization , intra cytoplasmic sperm injection , artificial insemination cryopreservation and intrauterine insemination (IUI) .Some patients use assisted conception technologies with their own gametes. Some use third-party gametes such a sperm and oocytes or eggs provided by third parties. .Many also use in vitro-fertilization with "embryo donation"- that is embryos provided by third parties (Surrogacy).
Most couples can create a family through sexual intercourse with virtually no restriction placed upon them. Some, who cannot procreate naturally, choose to pursue other means, such as fostering or adoption. But then there are those who want a child of their own, this lot is left with no choice. Faced with infertility or another disability, they cannot reproduce through sexual intercourse and perhaps not even with the use of assisted reproductive technology ("ART"). The only way these women and their partners can pursue their right and desire to reproduce is through the use third party gamete donation and the help of a surrogate mother to carry their genetic child.
The use of ART to facilitate infertility treatment proliferation around 1970's. Since then the means of baby-making has expanded precipitously in the last three decades, prompted by scientific advancements, transformations in social organization and gender relations. At the same time, globalization has favored the search for cross-border solutions to the problems associated with reproductive difficulties. New technologies are expanding the possibilities available to consumers while challenging governments to regulate such technologies to ensure an ethical and balanced legal framework for their functioning. The market for fertility services has now extended beyond nation-state boundaries, compromising the ability of governments to effectively regulate provisions of fertility treatments.
In this era of globalization, the mobility of knowledge and people, and the development of undeniably beneficial new technologies have raised serious ethical and public policy issues for which governments face difficulty finding national solutions. In many ways globalization has made restrictive reproductive laws of some countries viable by facilitating proscribed reproductive laws across borders. The increasing demand in fertility services around the globe has created a new industry that involves decentralized, easily moveable services catering to a growing global demand and filling in the gaps created by restrictive laws in certain jurisdictions.
At the dawn of the twenty-first century, assisted reproduction continues to be a source of ambivalence. It is both celebrated as liberating couples and individuals from the pain of infertility and vilified as challenging appropriate methods of family formation and government policy making .
1.2. Rise Of fertility Tourism
Fertility tourism also known as 'reproductive outsourcing', narrowly to refer to those seeking ART access across border for the purpose of becoming parents. Some fertility travelers seek services within their home country, while some travel across country borders. The rapid expansion of transnational adoptions that started around the 1970's highlighted the existence of a growing market for babies in which particular states came to be characterized as exporters and others as importers and some as both. This phenomenon de facto functioned as a global "learning experience," establishing that individuals without enormous resources in home country, or having limited material means, can take the path to foreign destinations in their quest to reproduce.
Growing cases of infertility and the easy availability of ART has lured many people across borders. There has been willingness to travel for ART and the providers facilitate fertility travel, this phenomenon of traveling across border to avail fertility services has been popularly termed as "reproductive tourism." or 'fertility tourism'. Fertility tourism occurs when infertile individuals or couples travel abroad for the purposes of obtaining medical treatment for their infertility. Fertility tourism may also occur in the reverse, when the infertile import the third parties necessary for their fertility treatment. Individuals intending to become single parents or homosexual couples also avail such services to attain parenthood. In the past few years, reproductive tourism has expanded rapidly, and has acquired a public profile in the process.
The increased usage of ART procedures such as artificial insemination and the advent of in vitro fertilization also led to the development of a human gamete market where both male sperms and female ova is bought and sold in the name of gamete donation and the providers (donors) are compensated for the same by the intended parents (donee), the sperm banks or clinics. The collection and use of human gametes increased with the proliferation commercial surrogacy and availability of fertility services across borders and has now become the centre of ethical and legal concerns at national and international level.
ART and Fertility services are so new that comprehensive regulations are still developing. Some jurisdictions have banned these services based on ethical and social principles. Some jurisdictions ban the use of such services other than for altruistic reasons and ban the payment of gamete donors , at the same time there are many jurisdictions which either specifically permit the use of fertility services or due to a complete void of any law regulating use of such technology have created an open market for sale and purchase of human gametes and have become breeding ground for international commercial surrogacy, such jurisdictions came to be viewed as most favoured fertility destinations.
Although traveling for the purpose of obtaining treatment for infertility has recently received worldwide media attention, fertility travel is not a new phenomenon. Fertility tourism occurs for a number of reasons like, services sought in a certain area may simply not exist because of a lack of demand or because certain therapies have not yet been introduced there. They may be unavailable due to legal or cultural prohibitions , these are some of the factor that propagates fertility tourism, and these factors even give rise to reverse fertility tourism. Sometimes it may be too costly for some individuals to avail fertility services in their own country which forces individuals to travel across border to avail cheaper services. Traveling along a continuum from available to unavailable, the therapies may actually be available and affordable to the prospective travelers but not in exactly the way they prefer, or they may require clearing numerous time-consuming administrative hurdles before they can be accessed. Sometimes individuals who indulge in fertility tourism desire to benefit from more expert opinions or better success rates than are perceived to be readily available locally. Finally, in certain cases patients may simply desire the greater anonymity made possible through seeking medical treatment at some distance from their homes.
1.3 Creation of Global market for Fertility Services
Fertility patients confronted with inconvenient regulations seek services outside of their home jurisdictions; their actions frame the creation of the market for fertility services.
Today, treatment for infertility is widely available around the world and reproductive tourism spans the globe. The destination spots and points of departure in the global fertility market include both developed and developing countries.
Australia, Canada, Germany, India, Israel, and South Africa are among the many destination spots. Fertility travelers hail from a range of countries such as Costa Rica, Japan, Mexico, and the United Kingdom. Some jurisdictions are both point of departure and fertility tourist destination at the same time; many keep shifting their position from being a dentition to the point of departure depending on its legal enactments and cultural perspectives.
Moreover, often fertility travelers have racial or gender preferences that inform their choice of fertility destination. Many seeking third-party gametes want gametes from individuals whose race matches their own. Some travel to bypass a local dearth of technology, and others seek to use the fruits of third parties' bodies-eggs, sperm, or wombs. Some may simply want secrecy. Some destinations are attractive because of their religious or social norms. In some jurisdictions, either legal regulation or clinic-imposed rules restrict ART access based on marital status and/or sexual orientation. On the other hand, some clinics are formed for express purpose of providing access to single people and lesbian and gay couples. Thus supply side of reproductive tourism has developed to satisfy these needs in a sprawling commercial enterprise that is sophisticated in some respects and crude in others.
Travel related to infertility occurs for reasons as mentioned above, such as high cost, administrative obstacles or exclusionary reproductive policies. Great Britain and other Western countries, for example, have higher prices for reproductive services, driving those with fewer resources out of the market and forcing them to travel abroad to avail required services. Some scholars have contend that the phenomenon of fertility tourism is more like an exile that the intended parents have to undergo in order to attain desired services that are either banned, extremely restricted or available at very high prices.
Some jurisdictions have become niches for particular ART. Spain, for example, has cultivated a reputation for high success rates of in vitro fertilization (IVF). United States of America is a famous fertility destination for the various ART services encouraged by the fact that in many states surrogacy and anonymous gamete donation is legally permitted. Similarly, India is popular for its ready availability of gamete donors and gestational surrogates without any existing legal infrastructure to regulate the use of such technology. Denmark is one of the largest suppliers of sperms. Likewise, Israel is also a famous destination spot for fertility services like IVF with very high success rates. Other jurisdictions are in the increasingly becoming spots for emerging markets, formed by a combination of the technologies that they offer and other factors such as cost and national law.
Like high costs and many other restrictions on reproductive options trigger travel to jurisdictions with less restrictive reproductive laws. Although reproductive technology today is available globally, it continues to be regulated on a piecemeal basis, with technological advances far outpacing the ability of the law to respond. The restrictive laws of certain countries acts as a moral safety valve permitting national parliaments to reflect local sentiments while simultaneously acknowledging the moral autonomy of those who do not agree with those sentiments.
At times, proposals to regulate assisted reproduction arise in reaction to the perception that its use creates ethical or social problems that need to be addressed. Professor Guido Pennings wrote on the importance of pluralism and distributive justice in reproductive technology and believes that governmental tolerance of reproductive tourism is important for maintaining internal peace and stability. He also viewed reproductive tourism as a leveling mechanism that allows people who cannot afford infertility treatment at home to travel to where it is cheaper. In this way, fertility tourism tends to cure or at least temper the effects of the inequality inherent in a restrictive reproductive regime. An industry formed both to satisfy a desire to have children, to become a parent, to form a family. Fertility business being primarily profit-based, the supply side entities have a huge stake in increasing demand. The phenomenal growth of reproductive tourism over the past few decades has indicated that the fertility business has successfully promoted family formation through ART use.
Thus, the restrictive laws enacted by certain jurisdictions prove misguided and propagate the very practices they intend to curb by increasing the demand for fertility services and create a across border market in other jurisdictions. Consequently, an effort of building a law adhering to a certain ethical, moral and cultural principle cannot control the use of such technology, it rather propagates its use by either creating an underground market for the prohibited services or spurs fertility tourism abroad. Moreover, entrepreneurship has played a significant role in creating pathways for ART use across jurisdictional borders.
In addition to the above mention factors many scholars have credited the internet for facilitating reproductive tourism. The Internet has increased the availability of, and the market for, human embryos and surrogacy services to a larger audience than ever envisioned, it has also created significant and unimagined legal concerns related to embryo donors, suppliers, surrogates and surrogate provider. It is the means through which citizens of one country is enabled to access reproductive technologies in another country.Clinics and other entities that enable reproductive tourism often have websites for prospective patients to gather information and contact out-of-jurisdiction providers. Websites are also used to solicit gamete donors and surrogates. On the demand side, those seeking ART share information with each other. Thus, while traditional word of mouth continues to plays a significant role in facilitating reproductive tourism, digital word of mouth has expanded the speed and scope of patient information sharing. Some Clinics emphasize on combining availing ART with vacation time, a romantic getaway and baby making trip at the same time where a package deal is set including air tickets hotel bookings.
Few clinics have form innovative affiliations with providers in other jurisdictions. Because third-party eggs are in short supply in jurisdictions that ban or limit payment to donors, many of these affiliations have formed to address the shortage. Many of the larger businesses run multiple clinics at transnational level. Increasingly, those businesses are choosing to locate clinics in multiple jurisdictions.
The widespread availability of the Internet around the world and its ability to link potential suppliers of genetic components and gestational functions with demand, and the ease of international travel, the market for baby making has become global. Entrepreneurs of reproductive tourism operating in numerous countries seek to ensure that client demands are met, competing on a combination of quality guarantees, ease of access, and pocket friendly prices.
Thus, a combination of need, technological advancement, cost, process effectiveness and increasing social acceptance has fueled the use of donor ART. In the following chapter the existing legal regime governing use of ART in various countries would be discussed. Various prohibitions and regulations would be elucidated to understand the reasons behind the growing demand for a global market for fertility services and the increasing trend of large scale fertility tourism across the globe.
AN OVERVIEW OF EXISTING REGULATIONS ON USE OF ASSISTED REPRODUCTIVE TECHNIQUES IN COUNTRIES AROUND THE GLOBE
As discussed in the previous chapter, cross-border reproductive travel has become a common response to the restrictive laws. The high prices that individuals and couples encounter when they consider assisted reproduction, the prohibitive laws enacted in certain jurisdiction, the availability of services at lower cost and administrative hurdles in accessing facility of ART, play a very important role in creating a market for fertility services in some other jurisdictions. To understand phenomenon that creates a global fertility services market in the current scenario more lucidly, it is imperative to look into the laws existing in various countries around the world in order to comprehend the chain of demand and supply in the field of fertility services and understand what propagates global reproductive tourism.
ART commerce across jurisdictional lines is fluid. The participants on both the demand and the supply side of the global fertility market change based on legal, medical, and normative innovations or regressions. Participants include prospective patients, States, countries, providers, health care facilities, sperm banks, egg donors, surrogates, agencies, and brokers. When legal rules, technology, or social norms change, the destination spots and departure points of reproductive tourism change as well.
ART use mostly relies on third parties who provide gametes, or gestate and give birth for intended parents. The differences between fertility travelers and the third-party participants arise from a lot of factors including class, race, and gender structures, which often align with geopolitical differences between the points of departure on the one hand and the destination spots of reproductive tourism on the other.
One of the scholars describes reproductive tourism as a phenomenon of moving parts. While the description is linear, the reality is interactive. That is, ART, the destination spots and points of departure, the prospective patients, and the commercial entities on the supply side are mutually responsive. As the destination spots and points of departure shift, so do the patients and those providing gametes and surrogacy as third-party participants. When new technologies or commercial practices emerge, the market realigns, expands, or contracts accordingly.
This chapter intends to throw some light on the mechanism of the global fertility service industry. In order to understand how the global fertility market functions it is important to look into the existing laws governing ART of various countries and then classify the under the head of departure Points (demand side) and fertility tourist destinations spots (supply side) in the global fertility services industry to lucidly explain where the demand arises and the place where it is being met. The classification shall be made of the basis of the nature of law governing ART in various countries which would be reflective of the demand generated by each jurisdiction respectively and vice versa.
2.1. Departure Spots
The laws on ARTs interacts with the growing phenomenon of cross-border reproductive travel in significant ways. Legal restrictions on assisted reproductive procedures or limitations on access to them by certain classes of individuals may trigger travel abroad for assisted reproductive services. Such laws may also inspire physicians to travel abroad to provide services outlawed at home or to refer patients to clinics in more permissive countries . Examples of legal restrictions that may trigger cross-border movements or referrals are Germany's ban on in vitro fertilization (IVF) with egg donation; Italy's, Turkey's, and most Muslim countries' ban on any use of third-party gametes; France's exclusion of non-heterosexual couples from infertility treatment; Australia's ban on non-medical sex selection; the ban on surrogacy in many countries; and the Netherlands' and the United Kingdom's ban on anonymous gamete donation. Some of these legal regimes may also prohibit making referrals to clinics in countries where the procedures sought are legal or even mentioning prohibited techniques to patients. In some countries, going abroad and receiving treatment where it is legal is itself a criminal offense. Turkey now explicitly prohibits travelling abroad to procure donor gametes. Malaysia and the three Australian jurisdictions prohibit international commercial surrogacy. The imposition of these laws prohibiting or restricting usage ART leads to the creation of departure spots or places from which maximum number of people travel abroad to access fertility services to circumvent the local laws. These jurisdictions that restrict the usage of ART become the demand side in the global fertility service industry. Some of the leading departure spots are discussed in this section.
2.1. (i) Italy
In Italy, a ban has dramatically changed the legality of treatment and services associated with assisted reproductive technologies. Italian fertility services once followed a laissez-faire model of live and let live. Partly in response to the celebrated case of Italian fertility specialists, who produced a pregnancy in a sixty-three-year-old woman and joined in controversial cloning efforts and partly in response to pressure from the Vatican, Italy adopted the most conservative restrictions in Europe . The 2004 Italian law allows access to fertility services only to married couples with proven in fertility, restricts freezing and screening of embryos, and prohibits gamete donation and surrogacy. The result not only bans services for single women, lesbians, and other unmarried couples, it also reduces the effectiveness of the available services. This legislation restricts domestic access for a large portion of the potential client base for fertility services, forcing those determined to obtain treatment to shop for favorable jurisdictions.
The German Embryo Protection ACT 1991 strictly forbids oocyte donation, but this act doesn't regulate sperm donation. In contrast artificial insemination by donor (AID) is allowed and only indirectly regulated by the German Civil Code. According to the German Civil Code every human being has the right to identifying information on the genetic father, i.e. the sperm donor, at the age of 18 years. In Germany egg donation is prohibited by law where as sperm donation is regulated by the German civil code that places a condition of non anonymous donations so as to safeguard the right of the child so conceived out of artificial insemination of donated sperms, the right to his/her father's identity. This clause of disclosure in sperm donation discourages many intended donors as it places a risk of transferring the responsibility on child on the donor in certain cases. Moreover, in Germany surrogacy is banned practice. The German courts have held that surrogacy is a breach of Article 1 of the Constitution, which states that human dignity is inviolable. To make a human being the subject of a contract is impermissible under German law, including the use of a third party's body for the purposes of reproduction. The strict definition of motherhood under the German Civil Code also makes surrogacy arrangements impermissible. No medical practitioner is allowed to perform artificial insemination or embryo donation on a woman who is willing to hand the child over to commissioning parents upon birth. Non-compliance is a criminal offence. There is a legal prohibition on facilitating surrogacy by announcements, advertisement or bringing together a prospective surrogate and commissioning parents. This creates a huge demand for the prohibited services and forces the German citizen to seek these facilities in some other jurisdiction.
Sperm and egg donation are permitted but only with fully anonymity, altruistic purpose. All gamete banks are under public control. Matching is done by the doctors and patients are not permitted neither is access to donor information. Any commercial reimbursement is an offence under French law. The criminalization for reimbursement has caused a huge shortage of gamete donors, and also caused a very long waiting list. The result led to reproductive tourism to other countries for sperm donations and oocyte donations. Moreover, in France services are limited to 'heterosexual, pre-menopausal women who are either married or who have been cohabitating with their male partner for at least two years.' These restrictions imposed by law on reimbursement to gamete donors and categorical access to ART has resulted in a massive shortage of gametes and kept patients on 5 years long waiting list, this has driven many desperate intended parents to travel to other jurisdictions. Moreover, in France, all types of surrogacy are illegal, and violations may result in sanctions of up to 10 years' imprisonment and around a 150,000 fine. This restrictive regime has propagated cross border travelling to jurisdictions providing ART to suit the needs of intended parents irrespective of class barriers.
In the year 2004, Canada adopted the Assisted Human Reproduction Act, the country's first comprehensive law addressing human genetic and reproductive technologies. . The Act permits the regulated use of human reproductive and genetic material and human embryos. However, it specifically prohibits certain activities deemed 'ethically unacceptable', including commercial surrogate motherhood contracts; the purchase of sperm or eggs; and the purchase or sale of embryos . Engaging in any of the activities prohibited by the Act is punishable with a fine of up to $500,000 or imprisonment of up to ten years, or both. Contravention of any of the Act specified provisions is punishable with a fine of up to $250,000 or imprisonment of up to five years, or both. These restrictive laws make Canada one of the departure spots in the global fertility services industry.
The fertility services are restricted to citizens only. There is a prohibition on reimbursement of ovum or sperms donation. Surrogacy is allowed only for altruistic purposes. This compels many citizens to travel beyond borders of local jurisdiction to avail the prohibited services. In the United Kingdom, the Human Fertilization and Embryology Authority licenses all British fertility clinics. British law provides for one free in vitro fertilization cycle, encouraging the British public to at least start with domestic clinics that are licensed by the authority. It is only when treatment is unavailable that British citizens are tempted to endure the hazards of seeking treatment abroad. With increasingly less generous funding of British fertility services, British citizens find comparison shopping in the rest of Europe more attractive. Funding restrictions in United Kingdom has as other limitations in encouraging patients to look farther afield.
Japan being a very traditional society has no legislation addressing ART. However ART is available in a very limited. In 2001 the Health Science Council set up the Assisted Reproductive Technology Committee. The Assisted Reproductive Technology Committee issued a "Report on the Development of an Assisted Reproductive Technology. The committee recommended that the services should be available mostly to legal couples, under 55 years, receive reproductive medical treatment using donor sperm, eggs and embryos Donor sperm and eggs are permitted only where those would couples remain infertile without being provided help. Pre-embryos may only be formed by couples who produce the oocytes and sperm. Pre-embryos created by donor sperm and eggs may not be used. In Japan surrogacy is completely banned. The lack of accessibility to various ART facilities forces many to travel to other destinations to avail specific services such as surrogacy.
In china the Ministry of Health has prohibited the buying and selling of gametes, zygotes and embryos. Surrogacy is prohibited in China, despite the government crackdown, the surrogacy services and agencies are flourishing in China and doing profitable business. The restrictive legal framework has lead to an underground market for such services, the prohibitions also encourage fertility travel to neighboring jurisdictions to avail the banned facilities.
The Australian states of Western Australia, South Australia, and Victoria have all enacted similar legislation forbidding access to ART by Lesbian Gay Bisexuals Transgender and single individuals and permitting use only where the reason for infertility is not age. Many Australian states ban anonymous donations. Australian states of Victoria and New South Wales have banned or limited compensation for egg and sperm donation beyond expenses incurred. The Australian states of Victoria, New South Wales, and Western Australia have made commercial surrogacy a crime. These restrictions have created a shortage in gametes and prompted significant amounts of fertility tourism. The most important among recent Australian developments has been passage of the Prohibition of Human Cloning Act of 2002 and its state equivalents. Section 23 of the Act prohibits "commercial trading" in human sperm, eggs, or embryos.
Similarly, Egypt, Iran, Kuwait, Jordan, Lebanon, Morocco, Qatar, Turkey, Indonesia, Malaysia, and Pakistan ban all forms of sperm or egg donation or surrogacy.
2.2. The Destination Points
The restrictions and prohibitions placed in the a above discussed jurisdictions lead to a significant amount of demand generated for the prohibited services and encourages the creation of a markets for such services in jurisdictions having less restrictive laws or no existing legal framework governing the use of ART . Consequently, some jurisdictions have become niches for particular ART facilities. Moreover, many jurisdictions become both destination spots of fertility tourism and points of departures at the same time for specific services based on multiple factors. Some such most favoured destination spots are discussed below.
Spain, for example, has cultivated a reputation for high success rates of in vitro fertilization (IVF). The current Spanish Law allows fertility treatment to all women above 18 years of age, no matter their sexual orientation. Fertility tourism in Spain is facilitated by information being provided on the internet related to the various kinds of services available and the low rates as compared to other countries Egg donation and sperm donation is both permitted that drives may foreign nations to avail such services freely in Spain.
In Israel, sperm donation and egg donation both is permitted. It is now emerges as one of the most preferred destination for IVF treatments considering the high success rates. Innumerous clinic have websites attracting intended parents from around the globe. Price rates are on display on the websites to enable the fertility tourist pick the best price by jurisdiction hunting. Israel also permits the importation of third party eggs to provide IVF services as egg donation is made controversial by the Health Ministry.
South Africa is one of the preferred destinations for fertility tourism Surrogacy is permitted in South Africa within certain limits. South Africa promotes Fertility tourism as a boon to its domestic economy by capitalizing on lax laws and looser regulations for access. Since 1997, with the change in law permitting single woman access to donated sperm for fertility procedures. South Africa has also attempted to advertise a "gaybe' revolution. The term "gaybe" was coined to express access to fertility services offered within South Africa to homosexual couples from other countries who are barred from enjoying such services in their local jurisdictions. Through advertisement of such services, South Africa is attempting to attract consumers by its lax restrictions, encouraging jurisdiction shopping. "Baby on-Safari" is now an entry in South Africa's official tourism guide, and perhaps an attraction to all those who would like to undermine discrimination against gays and lesbians in the provision of fertility services.
Denmark has been the leader, in developing an international market for fertility services. Aurhus, in Denmark is home to the largest sperm bank in the world , shipping frozen sperm to over forty different countries around the globe as diverse as Spain, Kenya, Paraguay, and Hong Kong. Denmark, which, unlike many countries, permits payments; it has utilized the freedom afforded by loose regulation domestically to supply an international market with tighter restrictions.
Ukrainian laws are very favourable to assisted reproductive technology. Providing that a surrogate candidate is between 20 to 40 years old, passes medical and psychological screening and has at least one healthy child, she can be accepted. The marital status of the surrogate is irrelevant. Ukraine is among the popular destination spots for egg donation among Whites. Ukraine allows the import of third-party eggs donors and surrogates. The cost disparity factor has made Eastern European countries like the Czech Republic, Hungary, Romania, Slovenia, Ukraine, and Russia significant destination spots for cost-driven travelers from Western Europe and the United States. In Ukraine there is a permissive governmental attitude and the considerable availability of service providers coupled with a reliable medical system this has generated a thriving, albeit not risk free, market in children commissioned through commercial surrogacy. Ukraine has become an attractive destination for international surrogacy in recent years. Numerous surrogacy clinics operate in Ukraine and advertise the lax regulations and intended parent friendly policies as a selling point. Because there is no regulatory body to track surrogacy in the country, it is hard to determine how many surrogacy arrangements take place each year in the country. In Ukraine, a surrogacy arrangement costs approximately"$30,000 and $45,000 for foreign parents, $10,000 to $15,000 goes to the surrogate mother.
United States of America
United States is both a fertility destination and a departure point. In the United States there are different legislations existing in various states, some restrict the use of ART but most states have loose laws regulating fertility services. Largely an unregulated market for fertility services exists in United States of America. Egg donation and sperm donation is legally permitted and surrogacy, both traditional and gestational is permitted in United States .However due to high prices charged for such fertility services many travel outside United States to avail these services in jurisdiction which provide more economical rates. In many cases, intended parents in the United States choose international surrogacy because domestic surrogacy is prohibitively expensive. The international sperm supply industry in particular is largely concentrated in the United States; four of the five largest sperm banks are based in the United States, and they control an estimated sixty-five percent of a burgeoning international business believed to be worth between fifty-million dollars and one-hundred-million dollars. Approximately seventy-seven percent of American fertility clinics now provide services involving donor eggs Some states have well established market for international commercial surrogacy and other ART facilities, for example, have traveled to California, a state in which the surrogacy market is relatively mature, as measured by the existence of a reasonably settled legal framework, a well-oiled system of service providers (mediators, clinics, sellers, and buyers), and a steady flow of transactions. In the last half-decade, gestational surrogacy rates have risen by 400 percent. Currently, no regulatory body tracks exactly how many of the surrogate babies born in the United States are commissioned for international clients. Recent accounts suggest that there is a growing portion of the surrogacy market in the United States.
India has developed into one of the most attractive fertility tourism destinations over the past few decades. It has gained the reputation of the world's surrogacy capital as people around the world come to India to hire the services of Indian gestational surrogate mothers. The complete absence of any legal frame has led to an unprecedented growth of fertility tourism industry in India attracting intended parents from around the globe. The and increasing trend of gamete donation in India where more and more persons are donating eggs and sperms in lieu of reimbursement paid by fertility clinics a gamete banks. A detailed analysis of the Indian situation made in the following chapter. In the following chapter would briefly discuss fertility tourism in India, its increasing reasons behind fertility tours to India by foreign nationals in the light of the facts discussed above and critically analyze the impact of such commercialization and the legal issues and concerns arising out of it.
3. THE INCREASING COMMERCIALIZATION OF ASSISTED REPRODUCTIVE TECHNIQUE IN INDIA: LEGAL ISSUES AND CHALLENGES
The advent of any new technology that affects mankind raises several technical and moral dilemmas and poses many ethical and technical challenges. The rapid development of health and health-related technologies has posed substantial challenges to global and regional institutions. Global development of medicine and technology has lead to the proliferation of a medical tourism across the globe in the search of best medical facilities available at most pocket friendly prices. 'India is the second Asian provider for medical tourism with an inflow of 4,50,000 tourists or more. Research, has pointed out that there is a 30 per cent growth annually in medical tourism in India. Now ARTs are the latest services on this list, reproductive tourism is a fraction of the larger phenomenon of medical tourism and already a major addition, attracting medical tourists from Asia, Africa, as well as from developed countries like the UK, the USA, Canada, and Australia. As an integral part of the growing medical tourism industry, the fertility industry has brought in additional revenue of $1'2 billion by 2012.
The advent of new reproductive and genetic technologies and the policies of liberalisation, privatisation, and globalisation are not independent of one another. The ART industry is pegged on the movement of babies, reproductive body parts (embryos, ovum and sperms) and women's caring and reproductive labour ; both as egg donors and surrogates from one country to another, resulting in the 'globalisation of motherhood'. While these technologies originated in the global North, their spread to the global South was rapid, accelerated in more recent years by globalisation and the neoliberal doctrine of trade without borders
In the prevailing context of commercialised medical services, ARTs are often critiqued as commodifying the process of reproduction and motherhood, and the bodies of both the woman and the child, who now becomes the end 'product' of a service. These technologies however beneficial cannot be provided at a public health care setup and compounds a needs for its proliferation in the private sector. The state here becomes a facilitator of the new industry fueled by privatization in the field of ART , this has lead to the creation of 'stratified reproduction' an unequal power equation by which some categories of people are encouraged or empowered to reproduce, while others are devalued.
ARTs encompass political, economic, ethical, cultural, and social processes, thus raising questions of gender, family, bioethics, law, and feminism. In a milieu like India's, ARTs come with concerns, both old and new. This chapter attempts analyze the ethical and legal issues related to the fast growing unregulated fertility industry in India. This chapter examines the process of increasing commercialization of ART in India through the proliferation fertility tourism; examine the actors, agencies, and collaborations; look into the features of the industry; and critically analyze the ethical and legal concerns related to the lack of standardization and regulation in the use of ART in India.
3.1. ART in India
The growth in the ART methods is recognition of the fact that infertility as a medical condition is a huge impediment in the overall wellbeing of couples and cannot be overlooked especially in a patriarchal society like India. A woman is respected as a wife only if she is mother of a child, so that her husband's masculinity and sexual potency is proved and the lineage continues. Infertility is seen as a major problem as kinship and family ties are dependent on progeny. Infertility, though not life threatening, can cause intense agony and trauma to the infertile couples. Out of the population of 1020 million Indians, an estimated 25% (about 250 million individuals) may be conservatively estimated to be attempting parenthood at any given time . By extrapolating the WHO estimates, approximately 13 to 19 million couples are likely to be infertile in the country at any given time. This is where ART became the supreme saviour.
Although it is generally perceived that ARTs are a recent development, the practice has existed from a very long time in history, artificial(non-coital) insemination became common in the mid-twentieth century. The world's first test-tube (IVF) baby, Louise Brown, was born in Oldham, Lancashire, UK, in 1978 under the 'care' of Dr Robert G. Edwards and Dr Patrick Steptoe. In 1978, just a few months after the birth of Louise Brown, Durga was born in Kolkata under the 'care' of a Kolkata-based fertility specialist, Dr Subhash Mukherjee. Six years after the birth of Louise Brown, the Indian government established an IVF project at the Institute for Research in Reproduction (now the National Institute for Research in Reproduction [NIRR]) in Mumbai. On 6 August 1986, the first documented IVF baby in India, Harsha, was born through the collaborative efforts of NIRR and the King Edwards Memorial Hospital (KEM), Mumbai (ICMR, 2005).
The era that began with the birth of the world's first test-tube baby in 1978, and reached its zenith with the cloning of a higher vertebrate from an adult cell in 1997, continues apace today, marking a dynamic but contentious phase in the development of reproductive and genetic technologies at an international level, Specifically in India which is rapidly gaining the status of centre of the global fertility industry. Some of the major forms ART are discussed below.
3.1( a) In vitro Fertilization
Traditionally conception occurred through intercourse between a male and female, with the male supplying the sperm and the female providing the eggs. ART is the umbrella term for various medical technologies creating conception through means other than coital reproduction. There are a number of ART strategies. The most commonly used form of ART all over the world and in India to treat infertility is in vitro fertilization (IVF). IVF is the process where an egg is taken from an ovary and is fertilized by sperm in a lab. Then, the fertilized egg is implanted in the woman's uterus. This reproductive technology is used all over the world to help heterosexual couples of single individuals intending to have a child; it has also enabled the development of practices like surrogacy. The global ART industry has used this technology to create a market for third party fertility arrangements to meet the increasing demand for baby making by the use ART. India due to its complete void of any legal frame work regulating the use such ART has become one of the most attractive destinations for such services.
Surrogacy , one type of ART, is the "process of carrying and delivering a child for another person". There are two types of surrogacy: traditional and gestational. When a surrogate uses her own eggs for fertilization, this is considered traditional surrogacy." Gestational surrogacy occurs when the surrogate is a host for an implanted embryo. The surrogacy agreement is labeled as altruistic when the surrogate mother receives no compensation or child support in return. Commercial surrogacy occurs when a woman is paid monetary compensation or child support for her services as a gestational surrogate.
Now, International commercial surrogacy has gained popularity due to the lack of international restrictions on such arrangements .Due to advances in technology allowing for gestational surrogacy, the demand for gestational surrogacy has increased as more and more people opt for it rather than traditional surrogacy. At global level surrogacy is a booming business despite of the fact that many countries prohibit surrogacy arrangements, the market for international surrogacy is estimated to be six billion dollars annually worldwide. India has come to be seen as international surrogacy destinations by providing quality fertility services for a low cost and attempting to provide the most legal protections for intended parents. India seems to be actively vying to be the international surrogacy capital. In 2002, India became the first country to explicitly allow commercial surrogacy. Moreover, the Indian government provides tax breaks to hospitals treating international patients. India has state of the art medical facilities and technical capabilities, combined with lower costs than fertility tourists may experience in their home country. Additionally, Indian women are considered more trustworthy because they are less likely to smoke, drink alcohol, or engage in drug use due to cultural and religious norms. Some fertility clinics are even located in dry cities like Anand in Gujarat.Although there are no accurate figures for the number of individuals who travel to India for ARTs, including surrogacy, it is estimated that the surrogacy business alone is worth $445 million.
3.1 ( c ) Gamete Donation
Increased reliance on ART compels a greater understanding of international trade in human gametes. In "gamete transfer," a person uses sperm or eggs from someone else who is not his or her spouse or life partner and has no intention of being a legal or social parent to the child created from this genetic material. (A gamete can be either an egg or a sperm; a gamete is a cell that contains half the genetic material needed for human procreation.) Third party gamete arrangements are, at the most basic level, designed to help an individual or a couple achieve parenthood when they are lacking an essential component: healthy sperm or healthy eggs. A sperm provider may be sought by heterosexual couples who are unable to conceive due to the male partner's low sperm count or by single women and lesbian couples who seek to achieve parenthood. Similarly, healthy eggs may be needed when a woman's own eggs are not viable due to advanced age, medical defect, or when a homosexual male couple seeks to achieve parenthood. In the latter case, one of the male partners' sperm can be used to fertilize the donor eggs in vitro, resulting in an embryo that is genetically similar to one intended parent, which may then be carried to term by a gestational surrogate. Although, sperm donation has been a commonly used in the process of ART procedures since early 90's , the use of alienable female gametes is a relatively new development in the field of ART. Procedures involving donor eggs have grown in popularity in recent years, partially because of legal developments that have made traditional surrogacy arrangements less favorable. As the phenomenon of commercial surrogacy gained momentum in India simultaneously a parallel a market for alienable gametes also developed and has expanded drastically in India over the past decade. The major issues raised by this widening practice remain in political, legal, and moral limbo and at both national and international level. India has no legal frame work to regulate gamete donation, this fuels the rapidly expanding market for human reproductive tissues in India.
The laws that regulate gamete trade profoundly impact the personal lives of people around the world. Laws that shape this area of supply and demand are dictated by political, social, and ethical standards that are unique to each country. Many countries impose strict regulations on donor compensation and anonymity to satisfy ethical concerns over the commodification of human reproductive cells. This has forced potential parents to circumvent trade laws by purchasing gametes from less restrictive countries. In effect, certain gamete trade regulations foster "procreative tourism" as well as illegal and potentially unhealthy Internet purchases of human sperm and eggs.
3.2. Commercialization and Comodification of the Human Reproductive Tissues and Organs
Even in this era of enthusiasm for free markets, a controversy rages over the appropriate boundaries of the free enterprise system. The debate is particularly fierce when transfers of human tissue are concerned. Market exchanges in human body components , can lead to a variety of undesirable social consequences. Humans become "commodified," with each person valued solely or primarily on the basis of the monetary worth of his or her physical components. In the global market fertility services human reproductive tissues are used as raw materials in the process of baby making. Alienable gametes are bought and sold across borders and over the internet in the cyberspace. Wombs are available to be rented for commercial surrogacy. Fertility tourism to avail such services is a rampant phenomenon in this era of globalization and free market economy.
In the global market of fertility services is led to an unprecedented commercialisation and commodification of the human body as It is acceptable for eggs and sperms to be transferred because they are sold in the name of donation ; it is acceptable for the gestational carriers to have contractual rather than parental rights because they are providing a service for third parties; it is acceptable to restrict references to parenthood to the "intended parents" and the other parties (gamete donors and gestational surrogates) involved are only providers of either raw materials or services.
Each year thousands of men and young women enter the gamete market sperm donors and egg providers. They are actively recruited with the help of agents, advertisements and on the internet by assisted reproductive technology clinics and sperm banks, evaluated on the basis of their academic achievements, athleticism, and appearance. Similarly surrogates are solicited by agents or fertility clinics.
The development of technology in the field of ART has enabled alienation of reproductive tissues and the use female womb as a gestational carrier. This has lead to the unprecedented commodification of the human body and the female reproductive organ in the global market for fertility services. The chain of demand and supply of gametes is put into motion on a global level owing to the restrictive laws of the countries that restrict commercial payments for gametes. The shortage for gametes is created by the restrictive laws or certain jurisdictions banning donor compensation or imposing mandatory disclosure that denies donor anonymity and discourages gamete donation. Moreover, the difference in the procedure of sperm donation and egg donation , sperm donation being relatively more simple as compared to egg transfer which is more complicated and painful process and involves various health risk, also adds to the shortage of gametes where commercial donations are restricted , which leads to further commodification of the gametes in the global ART industry catering to fill in the shortage created by lack of incentive in altruistic donations. This complicated medical treatment, combined with more difficulty in finding donors, led to market pressure to pay egg donors more than sperm donors. The result is that the global trade in the human global egg market is thriving.
As India gained popularity at an international level as the most preferred destination for commercial surrogacy the demand for sperms donation and more recently egg donation increased dramatically. Among the registrations from 149 countries on http://www.surrogatefinder.com, a website offering free registration to egg and sperm donors, surrogate mothers and intended parents, the highest for egg and sperm donors 5,293 are from India. Out of the registrations from India, 1,113 are from Maharashtra, 587 from Delhi and 433 from Andhra Pradesh and Karnataka each.
Research suggests that there has been an 80 per cent increase in couples seeking infertility treatment in India. There are numerous fertility clinics providing surrogates, sperms and egg donors, research points out that every clinic needs at least one donor every week as very second couple (in need of IVF) requires a donor.
Unlike the law laid down in many countries which only allows altruistic gamete donation and surrogacy arrangements in India there is complete lack of any legal frame work to regulate this rapidly increasing market of human reproductive tissues a surrogate mothers
In India sperm donation has picked up in a big way there is no dearth of young men donating sperms for money. The proposition of sperm donation is very lucrative as the donors receive somewhere around INR 1200 to 2000 per vial while some professional degree holders get around INR 5000 the rate of a post graduate donor is INR 2000. The prices rise with the added qualifications of sperms donors such as fair skin, strikingly good looks, good educational qualification. The quick money has attracted young boys to donate sperms illegally to the sperm banks
Similarly egg donors are categorised based on looks, height, educational qualification and, most importantly, fair skin. What are called 'diva donors', especially foreign, can earn up to Rs 6 lakh per donation. The monetary incentive in gamete donation is drawing the attention of young men and women to donate and make quick money. A regular egg donor gets about Rs 30,000-35,000 per procedure here in India , while those in the premium list draw Rs 50,000-60,000.
Mumbai doctors talk about a significant demand for Caucasian donors given the emphasis on fair skin. Owing to their physical resemblance with Indians, Mexican egg donors too have a demand in India. The money paid to these donors includes travel and accommodation expenses. Newspaper reports suggest that while advertisements for egg donors are usually placed in magazines widely read by women, newspapers or Internet portals, the reality is that many centres say they don't even need to advertise, such is the rush of donors.
Similarly, with the commercialization of ARTs, surrogacy has become a significant area of concern and debate. Commercial Surrogacy in India is available at a relatively low cost as compared to other countries and the legal environment is favourable. India, where the anomalous nature of surrogacy has become even more pronounced because of its large transnational clientele and the fact that surrogacy is flourishing in formally, in a legal vacuum. These factors have led to India's growing popularity in international surrogacy industry. It has become a top destination for surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. While in a developed country like United states the total cost of such transnational fertility tourism packages is roughly between US$100,000 to US$120,000, in India the package costs a third of that amount.
In the global market of international commercial surrogacy the womb provider has been reduced to a figure a landlord: Some refer to her as the "embryo carrier" or the "gestational carrier' others prefer to describe her function as that of having rented her womb. Either way, like the ova donor, she is stripped of any reference to maternity; the notion that gestation entails a biologically interactive process, in which a particular woman is actively engaged and by which she not only procreates another but also subjects herself to commodification, is elided . The commercial transaction is complete before the birth. The future child is postulated as being nothing more than the mechanical product of the transformative processes that is set in motion from the moment the "genetic material" is acquired to that in which the embryo develops through fetal evolution. Body parts, pre-embryo, embryo, and fetus are endowed with an identity that is separate from that of the gestational mother and is marked as property of the commissioning parties. Moreover, the awareness that gestational surrogates will not transmit their physical traits to the children they bear has facilitated "northern" recourse to gestational services provided in the "global south,' further contributing to the general stratification of reproduction.
Feminist critics believe that, commercial surrogacy is operational under the political economy of globalisation, which has jeopardized traditional livelihoods and opened new markets for informal labour that exploit and commodify the body. Feminists critical of surrogacy refer to it as 'commercial breeding' and 'reproductive trafficking
Although gamete donation and commercial gestational surrogacy is operational in a legal vacuum in India, many scholars have tried to draw an analogy between human organ donation and gamete donation and the renting of the uterus in the case of gestational surrogacy. The closest the Indian jurisdiction comes in the protecting the human bodily integrity and its protection from commercial exploitation is in India is the form of Transplant of Human Organs Act, 1994. The Act penalizes the commercial payment for any human organs. This act was enacted to curb the rampant medical tourism prevalent in India for organ transplant for a monetary compensation which lead to the commodification of the human body parts and violated bodily integrity. Many scholars have drawn an analogy and argued that market inalienability imposed by ban on commercial transplantations of human organs ought to apply to human gametes as well to safeguard human body from being commodified in the global reproductive industry that is thriving on such commercial transactions across borders. The critics of the gamete trade believe that this act should be read broadly in order to ban such commodification and commercialization of human gametes which would give greater effect to the purpose of the statute . The critics argue that the fact that lawmakers referred to "organs" and "body parts" somewhat interchangeably illustrates that they were perhaps generally concerned with protecting the human body, not just organs, from commodification, which should include human gametes.
On the other hand, supporters of the existing open market for human gametes argue that alienability of human body products, including eggs and sperm, is well established in the global economy. For example, the buying and selling of blood is common, and open markets for hair, teeth, and skin also exist at an international level. Further, the supporters of open market of gametes also point out the commodification gap between the organs and gametes by establishing the fact that there is a difference between the bodily invasion in harvesting and transplantations. Gamete transfer is far less invasive and risk-prone than organ transfer. Moreover, a distinction is drawn on the basis of their relative supply, sperms are regenerative reproductive tissues and while eggs do not regenerate, an average woman produces thousands during her lifetime, unlike and organ which is not regenerative. However no harmonization of the divergent point of views existing in this context has been achieved by any jurisdiction till date. This remains to be a controversial issue that has raised many significant ethical, moral and legal concerns around the globe.
3.3. The Legal Issues and Challenges Arising Out of Reproductive Travel to India
Much concern has been voiced from diverse quarters, ranging from feminist organizations to religious bodies, about the ethical, social, and medical implications of ARTs. These include questions on the health and gender, implications of the use of these technologies on female bodies, their effects on women's lives, and their implications for marriage, parenthood, and childhood. Apart from these moral social and ethical concerns various legal concerns also haunt the unregulated market for ART .Some of the major legal issues arising out of unregulated use of ART and growing incidence of international commercial surrogacy have are discussed bellow.
List the issues
Stateless Babies Caught Between Legal Systems : Issues of Parentage and Citizenship
Many legal issues arise with regard to parentage and citizenship in the case of gestational commercial surrogacy. For example After having children in this fashion and seeking to return home, many of these new parents have been refused travel documents for their children by their countries' consular officials upon suspicion of their having engaged in surrogacy. Many intended parents in their local jurisdiction have met with an official refusal to recognize the parent-child relationship or to bestow citizenship upon the children. Similarly a government intent on curtailing cross-border surrogacy may refuse to issue a passport or visa to the child, may not bestow citizenship upon the child, and may refuse to recognize the intended parents as the legal parents of the child. Problems can also arise in host countries where the law does not automatically entitle the intending parents to recognition as the legal parents of the child.
The case of the Yamadas, a Japanese couple who traveled to India to hire a gestational surrogate, highlights the problems that can arise in the host country. After the surrogate gave birth to Manji, a baby girl created with Mr. Yamada's sperm and the egg of a third party, the Yamadas divorced. Mr. Yamada and Manji then became "caught between two legal systems" when India refused to allow Mr. Yamada, single father, to obtain a passport for Manji or to legally establish his fatherhood by adopting her. Appeals to Japan, which does not explicitly ban surrogacy but where the law provides that the gestational mother is the legal mother of a child, were unavailing. Finally, after an Indian court ordered the government to act expeditiously on Mr. Yamada's request for permission to take Manji to Japan, the Indian government issued a transit document, Japan having issued a one-year visa to Manji on humanitarian grounds.
Several other cases illustrate what can go wrong when the law of the home country bans surrogacy and intending parents nonetheless pursue it abroad. Surrogacy has been banned in France since 1991. In the case of Sylvie Mennesson & Dominique Mennesson,, consular officials in Los Angeles, suspicious that the couple had employed a gestational surrogate in contravention of French law, refused to issue a passport or a visa for the children. After the children travelled from United States back to France with their parents, French prosecutors attempted to charge the couple with fraud and also attempted to set aside their entry in the official register of parentage, thereby depriving the children of French citizenship. The French court on the citizenship and parentage questions, recognized the Mennessons' parentage, but it refused to grant the girls the French citizenship that would normally flow from this recognition. Adoption was not a solution, since under French law, those who have resorted to international surrogacy are not allowed to adopt because they have attempted to circumvent legal adoption procedures Finally, after five court decisions in the course of ten years, the Cour de Cassation ruled that the girls were not French citizens. After the girls were denied citizenship Mennessons planned to take their case to the European Court of Human Rights where they decided to rely on cases forbidding disparate treatment of non marital children. Currently hundreds of children live in France without French citizenship, since their gestational surrogates were not French. This may mean that once they reach the age of majority, they will not be allowed to remain in France.
Similarly, such cases in Spain and Belgium involve gay male couples. The Belgian couple was involved in two years of legal wrangling related to the birth of their son to a gestational carrier in Ukraine. The child was left stranded in Ukraine during this period Belgium finally issued a passport to the young child and now recognizes a parental link between him and his biological father. In a Spanish case, consular officials in Los Angeles refused to recognize the parentage of two male Spanish nationals, married Spain, who travelled to California to have children with the help of a surrogate mother. On return to Spain, the Spanish consulate refused to issue visas, basing its decision on the Spanish law prohibiting surrogacy in Spain. Then the Ministry of Justice found it necessary to balance the interests of the children with the interests of the Spanish government in prohibiting surrogacy. The Spanish Ministry of Justice's issued instructions that embraced the legal doctrine of comity as the best solution to the family recognition problems that can arise from international commercial surrogacy. Although, there has been an attempt on the part of the governments to make sure the prohibition on surrogacy doesn't need to result in children who suffer legal instability "of various other nations which otherwise ban commercial gestational surrogacy , the citizenship of the child born out of such arrangements remain to be very controversial issues. The above discussed cases are examples of some of the major legal issues that surface in d aftermath of citizens of two different legal systems entering into a commercial surrogacy agreement which in itself is befogged by ethical and moral concerns. Many jurisdictions do not recognize the child born out of international surrogacy agreement they feel that relaxing the strict stance against granting citizenship to children created through international surrogacy would unjustly elevate the right to procreate above the need to safeguard the rights of women and the welfare of children.
Richard Stowrrow contends that there a powerful flavor of the new illegitimacy in case of assisted reproduction with donor gametes or surrogate gestation. Many critics pressed on the policy behind these restrictions, arguing that there has to be efforts to prevent "unusual" family relationships from forming. Unlike the old illegitimacy, these restrictions on paths to parenthood have little to do with marriage and much to do with a vision of motherhood that is impossible to harmonize with the families people create through surrogacy. However rendering these families "illegitimate" has done little to deter their formation, as there has been a considerable uptick in the incidence of reproductive tourism which makes it very evident. Recognizing the significance of this issue the Hague Conference on Private International Law studied the possibility for some form of broader response to the problems arising in the context of international surrogacy. Despite the likelihood of vast differences of opinion on the matter, it seems certain that some form of administrative cooperation will be required to prevent adverse discrimination against children "on the basis of birth or parental status.
Refusing to recognize the intended parents of children born of surrogacy as legal parents and denying these children citizenship constitute serious legal interference with international surrogacy. The fact that cross-border reproductive travel is a fast growing industry that is becoming crowded with brokers, and those who engage in deceptive trade practices also endangers and exposes the parties to the international surrogacy arrangement to a legal and be insulated from legal redress.
The Hague conference report suggested that some many the serious problems occurring internationally as a result of the increasing use of international surrogacy arrangements, the most prevalent issues being the often uncertain legal parentage and nationality of the children born. Children may be 'marooned, stateless and parentless'.
International surrogacy arrangements are growing at a rapid pace and, unfortunately, so too appear to be the difficulties arising from them. In the past year alone, problems concerning the legal status of children born as a result of such arrangements have arisen in many States across the globe. In addition, more cases have come to light which demonstrate starkly the possibilities for exploitation and abuse. Various examples have been discussed in the report where hypothetical situations inspired real cases have been raise critical legal concerns arising out of cross border international surrogacy.
A case closer to home is that of the Balaz twins , commissioned by German citizens Jan Balaz and his wife Susan Lohle in India by way of surrogacy, reveals the consequences that ensue when individuals belonging to different jurisdictions, enter into a contract regarding a basic activity of life, like having children in d backdrop of legal systems whose laws on that matter conflicts Caught between German prohibitions regarding surrogacy and Indian policies seeking to promote the market in baby making of life-having children-simultaneously in legal systems whose rules conflict. The agreement commissioning their birth, a contract ostensibly governing all parties, was written exclusively by private actors. This case is emblematic of the filiation and citizenship issues that the international market in commercial surrogacy raises.
The agreement entered into in this case treated filiation as matter of contract rather than status, whereas the regulation of reproduction and familial relations bears the imprints of nation-building and social policies and as such is not simply a matter subject to individual negotiation. In this case on the birth certificate of the twins the names of father Jan blaz and the gestational mother instead of Susan Lohle appeared. On appeal, the High Court of Gujarat recognized the nationality right of the children: They were Indian, it held, because they were born on Indian soil to an Indian mother. The court decided that the gestational mother was the natural and only the mother. Adoption was touted by the German government as a possible pathway to establishing the children's parentage and transform the illegality of commissioned surrogacy into legal adoption. However, in India it amounted to problem as surrogacy is not banned but adoption reserved for children who are "orphans abandoned or surrendered". Moreover, because India is a party to the Hague Convention on inter country Adoption (the "Adoption Convention"), all cross-border adoptions must comply with Convention rules, including a mandatory requirement that includes that the adoption agency must certify that no adequate national placement of the child is possible-and a ban on pre-adoption contact between the birth mother and the intended adoptive parents. This made impossible for Jan Balaz to adopt as he was the natural father, and similarly Susan was disqualified from adoption. Caught between two diverse legal systems the twins were claimed to be Indian citizen against the arrangement of surrogacy. However after a long legal battle and compromises between the two countries the twins were granted exit documents from India and enter Germany.
Then there was the case of the Israeli couple. The gay couple Yonathan and Omer could not in Israel adopt or have a surrogate mother. They came to Mumbai. Yonathan donated his sperm. They selected a surrogate. Baby Evyatar was born. The gay couple took son Evyatar to Israel. Israeli government had required them to do a DNA test to prove their paternity before the baby's passport and other documents were prepared.
Similarly, in the case of a Canadian couple who failed to obtain travel documents for twins they had commissioned in India, as the DNA tests required by the Canadian authorities revealed that neither intended parent was genetically related to one of the children, suggesting a medical error in the Indian fertility lab. The authorities Ottawa ultimately issued a citizenship card to the child who is biologically related to the couple and travel papers to the other child, with the apparent understanding that the family would file an application on humanitarian and compassionate grounds for their non-biological child and a citizenship application.
The legal incompatibilities that permeate the international market for surrogacy are not exclusive to India. The different legal orders that crisscross transnational surrogacy have given rise to a host of difficult situations. Taken together these cases have highlighted a lack of legal certainty that may ultimately undermine the demand for Indian reproductive surrogacy services while heightening the financial costs associated with the risks of uncertainty. They have also revealed the human costs of the collisions that can occur when "exporting" and "importing" states pursue conflicting policies.
Surrogacy unsettles the well settled notions of motherhood family formation and citizenship, all the related assumptions are disrupted, that directly affects the child's rights to nationality, citizenship, and, consequently, migration. In surrogacy, three potential "mothers" are in play: the egg provider, the gestator, and a commissioning party. Similarly the commissioned child has two potential fathers involved: the sperm donor and a commissioning party. The involvement of several parties playing distinct role in the surrogacy arrangement negatively affects the legal status of the child being born out of such an arrangement, placing the child under a potential threat of being rendered stateless and parentless.
The most coherent way designed by states engaged in the surrogacy market to address the question of parental ties is by jus sanguinis , rights appears to be validated by "legalizing" the "blood" of the mother that is, by substituting the corporeal bond of mother and child with a legal bond .Motherhood is reduced to a status whose basis lies in state validation of contractual terms between the commissioning parent and separately the ova provider and the gestational carrier. However, often the enforcement and legality of such contract entered across border becomes the bone of contention between diverse legal systems that jeopardizes the identity of the child born out of such arrangements.
The solution to such problems discussed above require interstate coordination, in the form of an agreement on international commercial surrogacy. Such an agreement requires negotiations over deeply held values, that in many states have a considerable impact on constitutional principles and have significant distributive consequences. Moreover, family relations, filiation, and their nexus to nationality and citizenship lie at the heart of what has traditionally been understood as the domestic jurisdiction of states. Thus cross border international surrogacy has posed substantial threat to the notions of citizenship and family and endangered the rights of the child being born out of such arrangements and also placed the other parties involved in a danger zone where they are faced with the prospect of their contractual rights being compromised by state regulations.
Potential Health Risks of Women and Children
Assisted reproductive technologies come in many forms and have gained fairly rapid acceptance in spite of the fact that most infertility patients must pay the costs out of pocket and that many of these treatments have arrived on the scene with little or no rigorous testing of their safety and effectiveness. As discussed above, ART is gendered technology. As such, it allocates most of the health risks to women. Some of the highest risks arise from egg retrieval and surrogacy.
Research has shown long that some fertility treatments increased the odds of a multifetal pregnancy, which poses a significant risks to maternal and fetal health and other safety issues have been identified, such as birth defects associated with particular ARTs. Drugs that induce ovulation by first stimulating the follicles and then releasing the mature ova provide the cornerstone for all forms of ART. Such drugs are used to increase the odds of artificial insemination and also administered in preparation of IVF.
As a number of researchers have documented, fertility drugs and IVF increase the incidence of multiple births. Such pregnancies pose a variety of significant health risks to both mothers and children. For instance, prematurity and low birth weight can result in long-term developmental harms in offspring. Research proves one of the well known defects of ART is the increased risk of major birth defects as well as low birth weight even in the absence of multiple gestation or prematurity. Research has shown ART pregnancies have serious birth-weight issues and health problems ranging from mild to severe, including hearing impairment, visual problems such as, cognitive delays, chronic lung disease, mental retardation, and high incidences of cerebral palsy-if the children survive. Report suggests that ART increases the risk of conceiving a baby with certain serious health conditions up to fourfold.
There have been incidents where surrogates have lost their lives under dubious conditions by developing sudden complications during the period of gestation. Similarly there have been cases where young women have died right after egg donations. Critics have pointed out several health hazards that the donors and surrogates are unaware off. The use of super ovulation for ART entails a risk of hyper stimulation in some women, in the range of 0.2 to 8 per cent. A high dose of hormones can lead to the hyper stimulation, which can be life-threatening. 'There is no Indian data to establish the rate of such complications. But according to incidence of hyper stimulation in international publications, mild to moderate can happen in 5-7 per cent cases. The severe one is in about 1-3 per cent cases. Hyperstimulation of the ovaries is a risky business and may lead to ovarian hyperstimulation syndrome (OHSS) This can be a serious condition requiring hospitalization, and the most serious manifestations can be life threatening. Repeated hyperstimulation increases the risk, since mild OHSS is not an uncommon occurrence in such procedure.
Moreover fertility specialists find it difficult to reduce the chances of multiple gestational pregnancies that result from the use of drugs to induce ovulation because of their greater imprecision. Like other pharmaceutical agents, higher dosages increase effectiveness but also increase the risk of adverse effects. Although physicians might reduce the dosages of fertility drugs to curb such problems but researchers still have not been able to identified any optimal treatment protocols and studies suggest that this strategy suffers from a lack of precision when compared to IVF followed by limited embryo transfer. Earlier recourse to IVF gave physicians a better opportunity to reduce the risks of triggering multifetal pregnancies, but today ovarian stimulation alone remains the preferred first-line treatment for many types of infertility because of its relative cost-effectiveness.
Another major concern in this context includes the standard of measures undertaken in order to protect the health of the parties involved in such an arrangement (surrogate mother and the gamete donors).As discussed above in this age of rampant commercialization of the ART and commodificaton of the human body, a open market for sale and purchase of gametes and surrogate services have emerged that remains completely unregulated by any legal framework in India. This raises critical questions about the quality of such services and the impact on the health of the parties involved. Due to the legal vacuum there is no concrete payment structure for surrogate mothers. They don't even get a copy of the written contract which is signed between surrogate mother, the commissioning parents and fertility physicians, they are not even aware of the clauses of the contract they enter into. Most of the surrogates undergo a caesarean section for delivery rather than a vaginal birth more than three quarters of the children born are by caesarean section. Research has shown that most fertility and surrogacy centres prefer to have the baby delivered by caesarean section as it is faster than vaginal labour and the clinics also charge an extra fee for such procedure. Caesarean section is considered riskier for babies under normal circumstances and doubles or triples the risk of a woman death during childbirth. The procedure also makes vaginal birth more hazardous in subsequent pregnancies and could therefore endanger the lives of low-income surrogates who may not have access to hospital care for future deliveries. As the word spread around the globe that India incubates babies for a much lesser cost as compared to other countries such as United States where its costs around $50,000 to $100,000 in India the entire procedure is available for $15,000 to $20,000 the fertility market in India has grown by leaps and bounds in the backdrop of legal vacuum. Surrogacy has become a kind of an employment, for which the surrogate mother is paid to be the vessel and perform the biological labour work. In the lack of any law regulating such contracts the surrogate mothers stand the danger of being exploited by the clinics which may pay them inadequately.
The Rights of the Parties Involved In Commercial Surrogacy
As in India there is no concrete legal framework that governs the use of ART, the expanding market for commercial surrogacy is completely unregulated, this sets in a ground for various kinds of legal conflicts arising out of such arrangements. Due to the absence of any law, the parties entering into contracts in the course of the procedure are placed under contractual obligations but what remains to be tested whether such contracts are enforceable in the court of law or not. Being a new phenomenon in India the potential legal problems that may arise out of such contracts are yet unknown but keeping in mind the legal issues faced by other jurisdiction in the same context is pertinent to determine what role law should play in regulating such practices and safeguarding the rights of the parties involved. Some have argued that the answer to the filiation crisis that surrogacy has heightened lies in the application of an intent-based paradigm of parentage. Under this approach, legislators protect, and courts enforce, the intentions of the parties embedded in their contracts.
The judicial decisions in other jurisdictions like that of United States of America demonstrate the uncertainty that parties may face when they seek judicial resolution of their parental disputes. In case of egg donors at the time of extraction of eggs the egg donors sign a contract waiving of all parental rights, research has proved that although most egg donors donate eggs for surrogacy many instances of unconsented transfer of eggs, unconsented destruction of eggs, and misuse of eggs in biomedical research. The egg providers have little chance of protecting their eggs from misuse after extraction is complete. Although egg providers are commonly assured that their eggs will be used to effectuate pregnancy, eggs may be destroyed at any stage before implantation. Even after implantation, the pregnancy carrier maintains a right to terminate the pregnancy. Also, although the doctrine of informed consent requires fertility clinics to disclose any financial interest in a provider's eggs, if eggs are extracted for use in biomedical research without the provider's consent, the provider cannot maintain an action for conversion to share in the profits of the research. More over much of the enforcement of rights depends upon the acceptance of the agreement between the involved parties as valid enforceable agreement. In the absence of any law specifically dealing with such contracts, such contracts need to be interpreted in the light of The Indian Contract Act 1872, however given the controversial nature of such contracts(ethical and public morality concerns ) , it may be rendered unenforceable under Section 23 of the Indian contract Act. This may give rise to innumerous legal conflicts given the rising practice of gamete donation and commercial surrogacy in India. Similarly the surrogates and the intended patents both are faced with the fear of then contract being entered into by them having no legal enforceability as the court may refuse to enforce it under the provision of section 23 being immoral or opposed to public morality in a certain case in the absence of a specific concrete law governing such agreement. In order to prevent such conflicts of interests from arising it is imperative to have a law in place to weigh and balance the rights of the parties involved and regulate such agreements.
Another concern arises in the context of anonymous donation of sperms and eggs as it deprives the children being born out of such arrangement the ability to know to develop an identity through exposure to those with whom they have biological ties, this can detrimentally affect the right of the child to know his biological roots.'
Procreative Right via 'a- vis Reproductive Justice
The rights discourse comprising of procreative liberties and an Individual's right to reproductive justice also ensues a whole new legal concern in the field of ART. Supporters of ART argue that an individual has the right to procreate and ART helps in the advancement of this right. The proponents of the procreative rights of individuals use the principle of bodily integrity and autonomy to validate their stance, however critics counter the claim by pointing out that the right to procreate does not guarantee infertile persons the right to conceive with the assistance of reproductive technologies and reproductive collaborators. Similarly, the argument of contractual autonomy individualism has been raised in support of commercial surrogacy , which states that the individuals have the right to enter into a contract an can freely trade with the female body capability for reproductive labour to provide services as the surrogate mother does, on the other and stands the communitarian perspective of human rights, which states that a person possesses certain unalienable rights and the status granted to them by virtue of their birth as human being cannot be traded away by virtue of individual contract, as it affects the status of other individuals as well.
Commercial surrogacy and an open market for trade of human gametes also raises pertinent questions related to human rights, specifically raises a concern for reproductive justice in the global market for fertility services. As increasing number of men and women are seeking surrogacy arrangements outside of their home country, mainly due to legal restrictions or the high cost in their home countries. Global surrogacy has raised numerous issues relating to the economic status of women involved in surrogacy arrangements, issues of poverty motherhood and how women from different ethnic, socioeconomic, class, and national backgrounds interact in the global surrogacy market. The reproductive justice framework incorporates the concepts of reproductive rights, social justice and human rights. Reproductive justice proponents try to "achieve the complete physical, mental, spiritual, political, social, and economic wellbeing of women and girls, based on the full achievement and protection of women's human rights. Reproductive justice moves away from the language of choice and autonomy because "the right to choose means very little when women are powerless." One of the scholars, Winddance Twine, analyzes surrogacy as a form of stratified reproduction. This refers to the concept that certain physical and social reproductive tasks vary based on class, race, ethnic, and global hierarchies.
Using a framework reproductive justice allows one to acknowledge that there are differences even among surrogates being hired for their services in developed countries and he ones being hired in developing countries like India The ideals of autonomy may not be as relevant to such a woman as it may be for a white, middle class woman that liberal feminism often speaks for. Amrita Pande in her research contends that being a surrogate in India or similarly situated countries should be considered a form of labor or work, rather than an autonomous 'choice'. The international surrogacy market is compensating women surrogates in a manner that allows them to make more income as a surrogate than most other jobs they would be qualified for.
The payments that surrogates receive for carrying a baby often equals four or five times their annual household income. Although the payment is less than in other countries, such as the United States, the sum is significant in the lives of these surrogates. Surrogates state that the income allows them to provide education for their children or to purchase a home.
Some scholars contend that unregulated use of ART could create and exacerbate inequality in our society. Indeed, some feminists contend that ARTs actually aggravate rather than alleviate inequality by reinforcing woman's primary role as that of child-bearer, reducing women to their wombs and perpetuating patriarchy.
Moreover, on the one hand where the supporters of ART use the argument of reproductive equality to justify the usage of ART, on the other, the existing legal framework regulating ART around the globe perpetuates reproductive inequality. Most laws confines the use of ARTs to married or "stable" heterosexual couples who are of childbearing age and infertile, it forecloses the use of such procedure for homosexuals and single individuals.
Critics of categorical access to ART contend that, law that prohibits ARTs under some circumstances, but not others, must at the very least be based upon a legitimate governmental interest in order to be constitutional. When such differentiation has no bearings upon the sought object of protecting gamete donors or surrogates mothers from being exploited; this disrupts the idea of reproductive equality and perpetuates legal discrimination against certain individuals in a society. Prohibition against a certain group of persons involved, with no real basis for the distinction other than societal disapproval or prejudice may extend to be a violation of the right to equality before law which is one of the basic tenets of rule of law which forms the basis of almost all legal systems. Thus in the light of the above discussion the major concern related to reproductive justice that need to be addressed is what role law should play to ensure reproductive justice in the global fertility Industry.
In India there is no of legal framework to regulate this expanding business of fertility services. Only piecemeal regulations and guidelines exist currently which have created more confusion than providing clarity. Thus it has become imperative to have a well structured legal regime to regulate the use of such services to ensure that the parties to such arrangement are well protected by law and the health of the surrogate mothers is not jeopardised at the altar of global fertility market. The following chapter critically analysis the need for effective legislation to regulate the market for fertility services and regulate booming baby making business in India.
THE NEED FOR EFFECTIVE LEGISLATION TO REGULATE THE BOOMING MARKET OF COMMERCIAL SURROGACY IN INDIA
In recent decades, a robust international market in commercial reproductive surrogacy has emerged but conflicts among legal frameworks have placed the children born out of such arrangements at risk of being "marooned stateless and parentless'.
States have tried to address individual cases through temporary solutions-issuing emergency entry documents for children caught at borders or compelling administrative authorities to recognize birth certificates related to surrogacy arrangements that run counter to domestic public policies, and judges have, attempted to craft doctrines that inevitably-and necessarily-correspond to the specificities of the cases before and their own legal systems. But the inadequacy of such approaches has become increasingly evident in the recent times. As a result, many states have developed national legislation on regulating ART and, together with international institutions and civil society networks, begun to seek international agreements. As today international coordination represents the only viable solution to the individual cases and diplomatic crises that have characterized the market in international commercial surrogacy. However, in India as 'fertility tourism" is booming, the reproductive technology industry remains completely unregulated, policed only by medical societies who implement industry standards through the mechanism of endorsement. Restrictions on fertility practices in jurisdictions have generated growth in the fertility tourism industry in India, as individuals look beyond their local clinics for sought-after treatments.
India is currently a top destination for fertility tourism. The factors as discussed above are many, such as high quality health care, Western-trained doctors and low medical costs make India attractive to would-be Western parents. Another reason for India's popularity with infertile couples is the relative scarcity of laws regulating reproductive technologies. Only guidelines issued in 2005, by the Indian Council of Medical Research ("hereinafter referred to as ICMR") exist to supervise the ART business . These Guidelines, however, are not legally binding.
The legal vacuum was brought into the limelight only after the much publicized case Baby Manhji where the biological father faced legal complications when he divorced the child's intended mother and was not permitted, as a single man, to adopt the child under Indian law. The case drew attention worldwide and the Supreme Court of India upheld the commercial surrogacy agreement. In the aftermath of this case, the ICRM concluded that greater governmental oversight was in order. Accordingly, in addition to the Guidelines already in place, the ICRM prepared the Assisted Reproductive Technology (Regulation) Bill 2008(hereinafter referred to as 'The Bill' failed to be tabled due to the dissolution of the house , later in the year 2009 it failed to be presented before the house due to several loopholes in the 'Bill.' In the same year the law Commission of India published 288th Report on 'Need for legislation to Regulate assisted Reproductive Technology clinics as well as Rights and obligations of Parties to a surrogacy'. Various loopholes have been pointed out by women's rights organisations, queer rights, human rights and legal rights organisations across the country, it has been demanded that required changes should made before the draft is presented in the parliament. Early last year a new prohibition has been placed by way of notification issued by the Ministry of Home Affairs, on the use of ART that bars homosexuals and single individuals from availing this facility. This has given rise to many controversial questions in the context of right to reproductive justice and right against discrimination. This chapter intends to discuss the above mention guidelines and reports in order to understand the need to have a concrete legal framework to deal with the rising phenomenon of gamete donation and commercial surrogacy in India.
The ICMR Guidelines 2005 Regulating ART In India
The increasing demand for ART has resulted in mushrooming of infertility clinics in India. ART in India is being provided by private sector only. Many of these clinics do not have adequate trained manpower and infrastructure facilities to deliver these highly sophisticated technologies and even services provided by some of these clinics are highly questionable. In some cases, the infertile couple are being cheated by providing relatively simple procedure and charged for complicated and expensive procedures. Thus the ICMR and National Academy of Medical Sciences (NAMS) came out with the 'National Guidelines for Accreditation, Supervision and Regulations in ART clinics in India' in 2005 to regulate and supervise the ART clinics.
These guideline stated Clinics involved in any one of the following activities should be regulated, registered and supervised by the State Accreditation Authority/State Appropriate Authorities
1. Any treatment involving the use of gametes which have been donated or collected or processed in vitro, except for AIH, and for IUI by level 1A clinics who will not process the gametes themselves.
2. Any infertility treatment that involves the use and creation of embryos outside the body.
3. The processing or /and storage of gametes or embryos.
4. Research on human embryos.
The term ART clinic used in this document referred to any clinic involved in any one of the first three of the above activities. The third chapter of the guidelines deals with the code of practice ethical and legal considerations of ART. Section3.3 of the third chapter deals with the various responsibilities of clinics. The responsibilities include informing the patients about the procedure; explain the rationale behind opting for a certain procedure, to help patient exercise choice. To keep all information about donors, recipients and couples confidential and secure. To maintain appropriate, detailed record of all donor oocytes, sperm or embryos used and the manner of their use. The guidelines also specify that the clinics must have the schedule of all its charges suitably displayed in the clinic and made known to the patient at the beginning of the treatment. Moreover, to be totally transparent in all its operations.
Although, the above guidelines were a welcome step for regulating and supervising ART usage, its voluntary nature rendered it unenforceable and toothless, there was a lack of a mechanism to check whether the clinics are abiding by these guidelines or not. Thereafter the Baby Manji case heighted the immediate need for a law to deal with the score of legal issues arising out of the increasing use of ART in India especially to cater to the needs of foreign tourists coming to India to avail fertility services. This initiated discussion for a draft legislation to govern ART procedures. In 2008 the ICMR drafted The Assisted Reproductive Technology Bill, 2008.
The Assisted Reproductive Technology Bill ,2008.
'The Bill' was enacted to provide for a national framework for the regulation and supervision of assisted reproductive technology and matters connected therewith or incidental thereto. The Bill lays down a complete legal framework for regulation and supervision of ART clinics and the procedures undertaken by such clinics. Various definitions are provided under the definition clause of the Bill that includes the definition of 'assisted reproductive technology' ,'couple', 'gamete donor', 'surrogacy' ,'surrogate mother' and 'surrogacy agreement' .Chapter II deals with the constitution of authorities to regulate the use of ART. Chapter III deals with the procedure for registration and complaints Chapter IV deals with the duties of ART clinics. Chapter VII deals with the rights and duties of the patients donors surrogate and children, which specifies that Subject to the provisions of this Act and the rules and regulations made there under, ART shall be available to all persons including single persons, married couples and unmarried couples. It also specifically deals with the right and duties related to surrogacy and states that the commissioning patents and the surrogate mother shall enter into an agreement. It states that all expenses, including those related to insurance, of the surrogate related to a pregnancy achieved in furtherance of assisted reproductive technology shall, during the period of pregnancy and after delivery as per medical advice, and till the child is ready to be delivered as per medical advice, to the biological parent or parents, shall be borne by the commissioning parents. It specifically deals with the compensation in the case of commercial surrogacy. It also safeguards the parental rights of the commissioning parents , and also attempts to safeguard the health of the surrogate mothers by specifying that no woman less than twenty one years of age and over forty five years of age shall be eligible to act as a surrogate mother. Also no woman shall act as a surrogate mother for more than three successful live births in her life. It also states that a couple shall not have simultaneous transfer of embryos in the woman and in a surrogate, in order to protect the surrogate from being exploited. It further lays down the status of the child and states that the child born to a married couple through the use of ART shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through sexual intercourse. Similarly, a child born to an unmarried couple through the use of ART, with the consent of both the parties, shall be the legitimate child of both parties. In the case of single individuals the child will be the legitimate child the single man /woman. It further clarifies that the birth certificate of a child born through the use of ART shall contain the name or names of the intended parent or parents. The bill deals with the penalties and offences in chapter VIII.
This Art bill was drafted with an object of providing a proper legal framework for supervision and control of ART clinics, regulation of commercial surrogacy and protection of the rights of the parties to surrogacy agreements and the children being born out of such arrangements. The 'Bill' also acknowledges surrogacy agreements and their legal enforceability. Thus ensures that surrogacy agreements are treated on par with other contracts and the principles of the Indian Contract Act 1872 and other laws will be applicable to these kinds of agreements.
However, due to various reasons it failed to be presented before the parliament and in the mean time social activists groups pointed out several loopholes in the Bill and recommended changes before the bill was tabled before the parliament for consideration.
The gaps In the ART Bill, 2008
Although the Bill was appreciated as an initiative by the Ministry of Health and Family Welfare to regulate the booming ART industry and commercial surrogacy in India . However, according to many social activists groups have pointed out that the provisions of the draft Bill are not enough to safeguard the health of the surrogates or the child being born out of such arrangement. They further claim that the Bill falls short in setting up a proper standard for such medical practice, and that is completely ignores the regulation of third party agents and surrogacy clinics which play an important role in arranging surrogates such as surrogacy agents, private agencies travel and tourism firms and surrogacy home operators. And law firms involved in promoting and facilitating the critics further claimed that the Bill should promote traditional surrogacy rather than promoting a more invasive gestational surrogacy. Some critics are of the view that Bill has rendered the women voiceless in the larger scheme of things of the ART industry, by not subjecting the real players of the surrogacy and ART industry to stringent regulations in their responsibility towards the surrogate. A huge onus has been placed on surrogates to be perfect and responsible partners in the surrogacy business on one hand an idea is played on these poor women by the industry players that they are being favoured by emancipating them financially, thus nullifying the equal participation rhetoric
Moreover it was contended that the upper age limit for surrogate mother needs to be clearly stated and should also stipulate the number of cycles a woman can undergo as a surrogate as the number of live births is often not equivalent to the number ART cycles, given the low success rate in such procedure. Thus the critics were of the view that the Bill falls short in its attempt to effectively safeguard the surrogate mother and the child's heath and needs more effective provisions in order to do so. It has also been contended that the Bill fails to put in place a pattern for payment of surrogates. Further, the Bill fails to consider the status of the child in the event of death of the commissioning parents, which holds equal importance in transnational surrogacy in relation to citizenship issues.
Legal regulation of surrogacy involves an amalgamation of the fields of law and science and is an issue which is delicate and complex at the same time. It is due to the immense value human beings place to motherhood and to the subjective and traditional roles that has been assigned to individuals in the creation of a family by society as well as legal institutions, more so to a mother. The commercial angle to most surrogacy arrangements makes the role of a surrogate an extremely crucial yet an immensely vulnerable one at the same time because the burgeoning surrogacy industry actually hinges and depends on her 'womb' rather than her. As several moral, ethical and legal issues arise in this context there has been an increasing demand for a concrete legal framework to address the problems. This also motivated the Law commission to conduct a research on the subject and it came out with the certain recommendations that are discussed in the following section.
The Law Commission of India 228th Report on 'Need To Regulate ART in India With special reference to commercial Surrogacy' (2009).
The law commission in its report stated that the legal issues related with surrogacy are very complex and need to be addressed by a comprehensive legislation. Surrogacy involves conflict of various interests and has inscrutable impact on family which is the primary unit of society. Non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. It was further stated that prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. Active legislative intervention is required to facilitate correct uses of ART and relinquish the cocooned approach to legalization of surrogacy. It was highlighted that legislation regulating ART is mandatory in order to safeguard the rights and obligations of the parties to a surrogacy and rights of the surrogate child.
The law commission also analyzed the Bill and relied upon the points raised in the National Seminar on 'Surrogacy: Bane or Boon' to point out several lacunas. Such as:-
Firstly, it was pointed out that the Bill neither creates, nor designates or authorizes any court or quasi-judicial forum for adjudication of disputes arising out of ART and surrogacy agreements. Disputes may relate to parentage, nationality, issuance of passport, grant of visa.
Secondly, the report raised a concern about whether a judicial verdict determining rights of parties in a surrogacy arrangement is essential in respect of a foreign biological parent who wish to take the surrogate child to his/her country of origin or permanent residence. It was pointed out that the law should be clear on the status of the child who is commissioned by foreign parents as to whether declaration from a civil court and/or a guardianship order ought to be a must to conclusively establish the rights of all parties and to prevent any future discrepancies arising in respect of any claims.
Thirdly, it was pointed out that a surrogacy contract should necessarily take care of life Insurance cover for surrogate mother. Moreover it has been suggested that in commercial surrogacy one of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. It would also ensure that the chances of various kinds of child-abuse are reduced. It was also suggested that in case the intended parent is single, he or she should be a donor to be able to have a surrogate child.
Apart from various other suggestions, the report recommended that the surrogacy should not be for commercial purposes, it suggested that altruistic surrogacy should be encouraged and not commercial surrogacy.
The Assisted Reproductive Technologies (Regulation) Bill , 2010.
A revised draft was prepared in year 2010, several new definitions were added in the draft. Although, most of the provisions remained same as that of the previous bill, certain substantial changes were brought about by way of specific amendments. For example, the definition of 'couple' which earlier read as 'the persons living together and having a sexual relationship that is legal in the country / countries of which they are citizens or they are living in' was now changed under clause 2 (h) 'two persons living together and having a sexual relationship that is legal in India'. The fact that in India homosexual relationship is a criminal offence under Section 377 of the Indian Penal Code, 1890, amounts to a ban on same sex couples from availing surrogacy services in India irrespective of the fact that in their home country it is legal or not. Moreover, the Assisted Reproductive Technology (Regulation) Rules, 2010, specifically mentions the requirements for selecting an individual or a couple as 'patient(s)' under Rule 7 which has to be read with Part 5 of the Schedule I of the draft Assisted Reproductive Technologies (Regulation) Rules, 2010. Reading of these two provisions together it can be interpreted to bar homosexuals from approaching for a surrogate.
This has invited widespread criticism from queer rights organizations , as such a provision is claimed to be highly discriminatory in nature and against the principle of equality before law, moreover it is claimed to violate of the right to 'reproductive autonomy' which has been declared to be a facet of right to privacy.
The existing confusion in the field of ART was further befogged by the Ministry of Home Affairs and the Ministry of Health and Family Welfare failing to see eye to eye on whether single individuals should be allowed to avail surrogate services or not. On the one hand where the drafts made by the ICMR on the behest of the Ministry of Health and Family Welfare allowed single individuals to avail surrogate services, on the other the Ministry of Home Affairs issued a separate guidelines concerning 'Instructions relating to foreign nationals intending to visit India for commissioning surrogacy' 2013.
This notification made it illegal for foreign nationals to visit India for commissioning surrogacy on tourist visa. The notification further stated that the foreign national couple travelling to India for availing surrogacy services shall apply under appropriate category of medical visa. Most importantly the notification categorically stated that surrogacy services can be availed by only by foreigners who are 'man and woman' who are duly married and the marriage has sustained at least for two years. This new development has raised a whole new set of legal issues as it placed the fate of the babies already commission by single foreign nationals, yet to be born under dilemma, as their status would be affected by the new law which came into force with retrospective effect
This new law also makes it mandatory for the foreign nationals to furnish a letter from the Embassy of the foreign country in India or the Foreign Ministry of the country should be enclosed with the visa application stating clearly that their country recognizes surrogacy and that the child/ children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/ children of the couple commissioning surrogacy. Moreover, the couple also needs to furnish an undertaking that they would take care of the child/ children born through surrogacy.
Although, the new laws comes a long way in securing the status of the commissioned child, and ensures child is not rendered' stateless and parentless', at the same time it restricts the scope of ART immensely by creating a watertight compartmentalization of a certain category eligible to avail such services. This has attracted widespread criticism at national and international level. Thus in order to clear the cloud around such issues a concrete legislation is a long overdue in India to balance the conflicting interests of the parties involved and avoid the creation of illegal markets for such services in India.
Conclusion and Suggestions
As the developments of reproductive technologies outpace legal frameworks, government of the states grapple with how the law ought to resolve the new dilemmas posed by reproductive technologies. Jurisdictions strive to strike a balance between the need to preserve its ethical and moral ideals that form an integral part of their socio-cultural identity and the need to evolve with the changing circumstances. George Annas wrote that 'Science deals with facts, not values. Since science cannot tell us what we should do, or even what our goals are, humans must give direction to science.' This stands true for ART as well. ART was a scientific development which aimed to resolve the growing problem of infertility, it was applauded for what it could accomplish, but its subsequent use by the fertility service providers reduced it to its current state, today it epitomizes commercialization and commoditization of the human body. Moreover, several ethical, moral and legal issues arise due to commercial trading in the human genetic substances and women's reproductive capacity.
Reproductive tourism has become a commercial means of acquiring one of the most intimate aspects of human life, the parent child relationship. This phenomenon subtly mixes the commercial and the intimate. Fertility services industry which can be seen as a product of globalization which has not only fuelled price comparisons between 'goods' and 'services' in different countries but also created an open market for trade avenues far beyond human contemplation. Globalization has facilitated a free market for trade and economic development across borders but the 'fairness' of that free market remains doubtful, similar equality concerns arise from the very way reproductive tourism works. To a large extent inequality is a driver of global fertility service industry as it is true for other markets. The global reproductive services trade which relies heavily on women's bodies, and in particular, woman's reproductive capacities, uses either the narratives of altruism (surrogacy and gamete donation, as gifts) or the free market rhetoric to substantiate its existence .The International commercial surrogacy thrives woman's reproductive labour, which becomes a part of a formal economy. However, in this commercial exchange the bargaining powers of the service provider and the receiver remains highly disproportionate based on class, race, ethnic, and global hierarchies. This makes fertility tourism culturally disruptive, morally ambiguous and potentially exploitative, which has often provoked critics to denigrate fertility tourism as reproductive colonization.
Thus, ART's use needs be directed and regulated in order to truly accomplish the goals it intends to achieve. However, many jurisdictions rather than attempting to strike a balance, adopted a prohibitionist regime reflecting the local sentiments of disapproval and moral repugnance to such 'circumvention' of Mother Nature. This in turn laid down the foundation for a global reproductive exodus to other jurisdictions to avail what was denied. India, being a developing nation, having resources and lax governmental control, jumped to this opportunity and created a niche for itself in the global market for fertility services. This gave rise to innumerous ethical, moral and legal concerns that needs to be addressed immediately. India needs to formulate a law to balance the conflicting of interest of technological and economic development and social welfare mechanisms. Learning from the experiences of other jurisdictions, in India a legal change should be contemplated with humility and attention to both its local and extraterritorial effects. A concrete legal framework needs to be established to address the crucial issues raised by the growing use of ART, in order harmonizing the conflicting interests that may arise in the process. A coherent legal framework should be incorporated to address the concerns related to safety of women's health and body, the status of the children born of surrogacy arrangements, hetero-normative concerns regarding access to surrogacy services, and the regulation of industry dealing in production of children for export.