CHENNAI: Just three years ago, the world was shocked by the baby racket secretly managed by renowned American attorney Theresa Erickson for years using loopholes in the surrogacy laws in Ukraine. She secured discarded or anonymously-donated embryos as well as women ready to rent out their wombs for handsome money. “She later sold the newborn to childless couples in the US for a huge amount. She would convince them saying the original intended parents had backed off. It is human trafficking,” says Chennai-based advocate Hari Ramasubramanian, who specialises in surrogacy law.
The recent controversy over allegations of underpayment against a Chennai-based private hospital by a surrogate mother and a closer look at how the surrogacy industry thrives here, is enough to ring alarm bells. In the absence of a solid law or regulatory mechanism, and with the entire operation being managed by private clinics in an opaque manner, many express apprehension that the present environment could even encourage the unscrupulous to run “baby factories” with unimaginable consequences.
What Express found out by talking to people involved in the industry was that surrogacy is largely managed by private hospitals. The hospitals “procure” surrogate mothers, negotiate the compensation and terms on behalf of the commissioning parents, handle the medical treatment and even pay the surrogate mothers. In most cases, until the end, the surrogate mothers or the commissioning parents, who are actual parties to the surrogacy contract, do not even know each other. None, except the hospitals’ managements, would know who is carrying whose baby. And with the lack of law or a proper mechanism, there is nothing illegal about such a non-transparent manner of bring out a new life.
Imagine if some unscrupulous elements exploit the state of affairs and replicate what the American lawyer Erickson had done in Ukraine? Or something even worse?
“Will we wake up only when something like the kidney racket breaks out. I strongly feel that we should bring in laws to regulate this business,” says Advocate Kavitha Balakrishnan.
The draft Assisted Reproductive Technology (Regulation) Bill, intended to regulate surrogacy, has been pending for nearly five years with the Union government. The Indian Council of Medical Research has only guidelines, which means they are not ‘rules’ and not enforceable.
Some feel that most of the problems will be settled if the private hospitals do only what they are supposed to do: handle only the medical part of surrogacy and let the commissioning parents and surrogate mother decide the terms of contract between them.
“The role of the hospitals is purely giving medical treatment. Trouble begins when they overstep their role by negotiating between the commissioning parents and the surrogate mothers. The actual parties to the contract are never allowed to decide the terms in their free will. We should make it transparent by allowing them to talk to each other and decide the terms of the contract. Let the hospital do only the medical treatment,” says Hari Subramaniam.
Should there be governmental monitoring of surrogacy? Former Madras High Court Judge T N Vallinayagam opines that judicial monitoring would be the better option, as is the case in adoption and guardianship. The exact mechanism could be debated and evolved over the years.