On Mathamma…

Recently, while discussing the ART Draft bill 2008 with a prof, specifically the possibility of exploitation of Indian women in surrogacy arrangements, I confessed to her that I am haunted by images of girls, who in the future may be raised to be only surrogate mothers……..  she asked, “like Atwood’s handmaids?” I blinked my ignorance at her, and said I’ll read up.  In Margaret Atwood’s novel, The Handmaid’s tale;

Atwood posits a future Republic of Gilead run by a conservative Christian dictatorship.  As a result of exposure to chemicals, nuclear waste and other pollutants, female fertility rates have fallen to catastrophically low levels, so the government forces fertile women to go to reeducation camps.  There they are trained as handmaidens, sexual surrogates for powerful men with infertile wives.  Infertile women are sent to clean up toxic wastes or are trained as Marthas, household servants.  Female sexuality is completely forbidden, indeed most sexual expression that does not serve the Republic’s purposes, including pornography, homosexuality, etc., is banned; sex is permitted for reproductive purposes only.

The novel was also made into a movie, here is a short video:

The images of women in my mind do have the same role, however, I had superimposed them on Indian cults, unfortunately not relegated to bygone memories. The mathamma’s, devadasi and jogi cults form the basis of the repugnant images in my mind; A future where, a community of young healthy Indian women are relegated the role of child bearing for wealthy, too busy and maybe sterile Western clientele.

How did the cult of Mathamma’s originate? Who decided they will be available for sexual services of any male wishing to avail it? Who sanctified these rituals? How did her family become convinced to let their child become a sexual tool for the world, while giving away all her rights? Who gave the right to anybody to take away the girls right to dream, to study, to play, to marry, to live life like any other Indian girl? How perverse is the Indian society that these practices continue even today?

Try answering these questions with surrogacy in mind; a booming powerful industry, a Government showing signs of wanted a piece of the pie and little else, an apathetic public and you have a modern version of such a cult based on womb service. One, where young healthy women will be trapped into only playing the role of surrogacy, much like Atwoods Handmaids, maybe I should have titled this post ARTmaids.

Our society still houses conditions where women live this horrific lives defined by exploitation, like the mathamma, devadasi and jogini’s, for having a female body, being poor and ignorant.

Why will such a society NOT create a community or cult for young girls to be raised as surrogate mothers?

Yes, considerable time is going in raising awareness about a ghost that might not appear, but I would rather call wolf now, than latter. Please read, watch and feel for these women and understand that prevention is much easier than undoing an evil. In the past, readers have commented that such practices occur only in remote parts of India, probably true, the Mathammas however, belong to a community that is spread over Andhra Pradesh, Tamil Nadu and Karnataka, some of them live in large cities like Chennai. Ban or no ban these practices continue in front of our eyes, but enlightened Indians choose to be blind and believe that all is well with our world. Yes, it is, just not so for our fellow citizens. And in our continued blindness, we will become mute spectators to the exploitative elements inherent in our society take advantage of these unchanged conditions and combine it with the money spinning oppurtunity that ART provides.

Here is Parthiban Shanmugam’s short movie:

Who rents their wombs?

Surrogacy is not new

Surrogacy arrangements between friends and family appears to be an useful, effective and in fact an old system of help between fertile and infertile people. ART aids this practice with wider options, better health care and safety, and gestational surrogacy is evolving as a viable system in modern times. There is a remarkable rapidity in the acceptance of advances in science and new technologies in this area (ART). In the international arena the debates on the attendant risks and positives of these new technologies are split along many axis. Debates within the country as seen by media coverage, thoughtfully updated here by Kishore, shows lawyers have looked at some legal issues in the Draft ART bill 2008, woman’s organizations have taken some stand and some expert opinions have been thrown in. So far I did not come across anybody/group speaking for the rights of child born through ART .

The apparently helpful interaction of surrogacy arrangements does not sit well in peoples imagination when it involves a commercial aspect. The reasons are very complex and includes tons of unreasonable reasons too. In short, we can say that a private matter between individuals for various reasons has become a public phenomenon, with very legitimate reasons for needing state intervention in this process. Is the commercialization a new phenomenon? Was there some payment kind/cash in surrogacy arrangements in earlier times? If the motivation for becoming commercial surrogate mothers is largely money, do we need to know something about these women before accepting the regulations related to them in the ART bill or even giving out suggestions for improvement? As of now they are an unknown entity, and except tentative statements suggesting that they are from ‘lower economic strata’ (whatever that means to the ones saying it) there are no tangible figures from reliable sources to confirm this.

Who are they? I have an overwhelming impulse to know this.

Let me do so in the form of questions as they were not answerable with the information available to me. Alongside each question is written why the question needs to be asked. In case others have asked these questions and found answers, it would be great to know about it.

1) What are the demographics of women who become or are going to become commercial surrogate mothers in India?

In order to assess the impact of surrogacy through ART on these mothers, one needs to be aware of their individual social realities. Each will require a complex counseling regimen that is specific and variable to different groups, if indeed they represent a random mix of backgrounds. While medical counseling can be generalized for everyone, psychological counseling however cannot be generalized, at least to my understanding. So we need to know who they are.

2) Will these demographics change in future, with increased social acceptance and apparent advantages of monetary gains reflected in improved lifestyles?

The dramatic change in money earned by the mother ideally will and should move her out of present situation and the need to keep repeating surrogacy. The space she creates for another candidate, where the demand remains, will be filled by  another from exactly similar situations, one assumes. One can also see that this has potential for attracting other groups too.

2a) What if, with time the industry lowers its standards of safety (limited ones set in the bill), in the absence of checks in remote places, will the demography change to more vulnerable groups?

My thoughts are going to where prescribed age is not adhered to, and younger girls get recruited.

Or if the suggestions of a prior pregnancy experience as a requirement are ignored, and first time mothers/girls get recruited. We should anticipate changes in demographics and prepare for such scenarios.

3) The more basic question for the boom in ART, the regulations and now this new phenomenon of womb renting are of course really, basic, has infertility increased in India?

If it has, we should be addressing this as a public health question that involves the Indian people. If it has not increased one wonders if the previous system of known persons helping each other (voluntary surrogacy) has declined. Studies of surrogate pregnancies in the past and the motivations behind it would help us understand this better and maybe help bring it back as an acceptable and noble system. We need to know about the current and projected figures of infertility affecting Indians.

4) Has the clearly increased infertility rates in European/wealthy parts of the world started to influence the rise in surrogate arrangements in India?

4a) How did India, which lags behind in so many other aspects of medical research and facilities, become a destination for housing and providing sophisticated technology such as ART?

The first is a moot question, but in answering with details it is complex.

The second showcases a fantastic contrast or change in attitude of the western world. Where once the European world thought underdeveloped countries unworthy of high tech solutions of ART, because of notions of overpopulation-high fertility-stress on the world and essentially expressing ‘it is better they don’t reproduce’. Now, suddenly the technology has flooded these countries, at cheaper prices, and of course in a climate lacking regulations. To me, it seems like the singular reason would the prospect of womb availability, in the form of surrogate mothers at much lower prices than in their home countries, favors this increase in surrogacy arrangements and hence ART. Influence of declining international infertility rates on ART in India has to be critically analyzed and given its place in the scheme of things.

A little deductive reasoning:

Just based on what I have been reading in the Indian and US media about surrogate mothers, the technology requirements and of course the conditions laid out in the draft bill, I am trying to eliminate possible groups of women and thereby narrowing down on the demographic range of Indian women heading towards or participating as commercial surrogate mothers:

An industry that is running on $445-million-a-year business, involving several technologies, the most expensive of them being surrogacy/gestational carriers, would not come about without the surety of assured supply of surrogate mothers. Where did the industry decide this supply of humans would come from?

Indirect statements from various quarters indicate, lower economic strata (as far as the west is concerned most Indian women fall in this category, some of their statements are very very readable, very telling..!).

Let us see if it indeed be lower economic strata? Is lower the lowest? Chronic destitute?

From where I see, that would be the real bottom, a woman who found herself in a position where renting part of her body was the only way out her economic situation! Usually, such a condition is associated with acute destitution, where all systems have broken down for the individual, where the last currency or asset that being labor is of no value, thereby bereft of any human capital or skill, body and body parts are rented, sold or used to earn money (womb renting, organ sale, prostitution).

Is womb renting really associated with this kind of chronic destitution? It should be, right? If she had any other means of earning that money, she would opt for that, maybe?

However, in reading about ART, chronic destitution will have to be ruled out. That is surrogate mothers participating in economic transaction of womb renting and the practice ART will most probably never involve the most desperate of Indian women. The reasons for this:

Basic requirement of surrogate mother in an ART program; she has to be healthy, not be a carrier of any infections disease, should have had successful prior pregnancy experience, preferably no history of abortion, should be available for a lengthy treatment involving hormone injections and clinic visits. Should show normal indications of being in a position to guarantee the safe carrying of the fetus to term. The last would mean a clean home, with regular healthy meals and access to medicine.

The high infant mortality and mother deaths associated with poorest women
in India, removes them from qualifying and hence benefiting from a monetary gain for reproductive service involving ART. A simple elaboration;

Chronic destitute are less likely to be healthy.

Less likely not become exposed to infectious agents.

More likely to be living in conditions less suitable for the child she carries.

If in case, she is healthy and tests prove that she is free of the listed diseases, the clinic will have to ensure safe accommodation, in fact, isolate her from her usual circumstance of living space and interactions.

Who then?

Then, does ‘lower economic strata’ mean healthy, probably unemployed mothers? One who has access to a minimum lifestyle and is looking to improve her general economic situation. At higher ends they would be healthy, mothers looking to tide over specific circumstances such as a sudden unanticipated financial downfall, an expensive surgery for family member and similar events.

The reason I believe these mothers would be mostly unemployed is because of prolonged and periodic visits to the clinic while the ART procedures are being tried and maintained in surrogate pregnancies. Women holding down jobs are not going to find it easy to pass of the frequent absences. And in one of discussions here, it appears any pregnancy achieved through IVF is considered ‘precious’ and all precautions of high risk pregnancy are to be followed. This is not stated in the draft, if it is true, then it is possible that the woman may have prolonged absences from work.

A direct question to recruiters of surrogate mothers will be, have you ever had a working woman enroll for surrogacy? Not just office jobs, even daily wage jobs, as it would be discouraged, given the price tag on the pregnancy. A connected question would be, does the price of compensation include lost wages, or is it just for womb renting? If indeed she is unemployed, lost wages will not be calculated into this transaction. Quite convenient (More on this comparing the US demographic, their compensation and counseling regimens at a later date).

Right now, I want to say despite all the misgivings, there is a huge subversive potential for Indian women, the infertile and surrogates as well as the medical infrastructure, if harnessed in the right manner.

Will ART impact Dalit women?

My initial curiosity about the new draft bill on Assisted Reproductive Technology (ART) was centered around becoming  aware of its impact on Dalit women.  One question lead to more questions, and bits and pieces of this huge puzzle called ART started appearing from different sources. And reading material on ART and related subjects is rapidly accumulating in my computer, on the table and bookshelves. Friends and colleagues have shared their experiences and insights and I have learned a lot from commentators on this blog. All the same, nothing adds up for any of the questions raised regarding some aspects of the draft bill and its impact on everybody, though the leads are interesting enough by themselves. The answer that is most elusive, however, is for the initial question ‘will Dalit women be affected?’ as I have not had the benefit of discussing with any one who is well informed about this or finding some written material.

These are some of my concerns regarding ART and Dalit women:

1. Will ART recruiters see healthy, fertile Dalit women as candidates for surrogacy?

2. In this context are Dalit women easy targets for exploitation, by science, society and law?

3. Are healthy, fertile Dalit women likely to use the opportunity to earn some money by exercising independent choice to become surrogate mothers?

4. Can Dalit women use ART as a medical solution for infertility?

5. Is there a subversion potential in ART that can act as liberating ingredients to Dalit and other underprivileged Indian women?

The Dalit world, like the rest of the country and its various communities is also stratified. The range would cover at one end, a large number of chronic destitute, with the middle comprising of a large majority of working class laborers and a few with university degrees and salaried jobs at the other end. Alcoholism, domestic battery and polygamy among other ills are some of the hard realities that Dalit women have to deal within their communities. There are few or no support structures that members can depend on when subjected to exploitation by forces outside the Dalit community.

According to this report, Dalit women: As a result of poverty, discrimination, lack of education, and denial of basic needs, have a life expectancy of at most 50 years, an infant mortality rate of 90 per 1000 births, a fertility rate of 5.19, and general ill health.

With the above in mind, is it possible to imagine the healthy fertile Dalit women becoming candidates for surrogacy by their own choice or will they be convinced/lured/forced into becoming surrogate mothers? Her best and often only support system of immediate and extended family members be supportive or will they become tools in the hands of exploitative recruiters?

I may come across as extremely biased in saying this “there is very less likelihood of a Dalit woman being chosen for surrogate motherhood by Indian patients.” Caste considerations and notions of impurity associated with Dalits will play a major role in the selection of surrogates by recruiters. However, the westerners not beset by these notions, but still interested in propagating their own genes, will not have similar inhibitions to avail the services of a Dalit woman’s womb (they may never even know, or care). Therefore, only in the latter context are Dalit women likely to be recruited (I could be wrong here, but I would be truly surprised if Indian high caste patients chose or approved a Dalit surrogate to bear their child).

As I read personal accounts of women in the US who have been surrogates, I cannot help but contrast it with the accounts of the few interviews of Indian surrogates. The access to information, support systems, the time and thought going into this important decision puts the western counterpart in a far superior position to make clear judgments about this. Some of them take up to 3-4 years making up their minds about being a surrogate, during this period they study all available information about the process and risks involved. There are mailing and discussion groups, and information at the click of a mouse for them. While most admit that the motivation is money, they will not jeopardize their health to earn that money. All the same there are number of cases where these pregnancies have resulted in preeclampsia (please read this paper for details). The health care systems are less likely to mess with these mothers, as the fear of lawsuits is a powerful reason for doing things right in the west. Our society, however, does not ensure any such mechanisms or safeguards and we are left with the draft bill alone to provide as much protection as possible.

And in this crucial document it appears as though random aspects of surrogacy policies from the west have been copy pasted into the draft. The social realities of Indian women are so different and the capacity to deal with fallout’s is severely limited as compared to the women in the west. Hence, I strongly believe that entire sections relating to surrogate mothers requires to be rewritten in the draft, taking into account the possible demographics of Indian women who are likely to be surrogates. Only then, one can retain hope that the government is serious about avoiding exploitation of women, particularly from underprivileged communities by surrogacy recruiters.

The Dalits like other underprivileged communities in many regions of India are ill equipped to prevent or deal with an onslaught of new age exploitation that will come in the guise of science, technology and societal approval backed by an ill written law. A situation where the healthy fertile Dalit girls/underprivileged woman’s womb can be commodified and ruthlessly exploited is all too real for me. Even though on the face of it, ART appears to be meant for the elite in this country and the not so super rich of the western countries looking for cheaper, less regulated options; the dependence on surrogate mothers wombs for a lower price by the western patient makes ART very much a poor person’s business. Hence, reading the fine print, highlighting the gaping holes and the compromises in the ART draft bill 2008, is a vital necessity to those interested in the affairs of the underprivileged.

PS: the subversion potential of ART  (to be contd).

Drop me an email, if you have no access to the linked paper.

ART on youtube

The power of images and voices!

Listen to: Government. Minister. ICMR. ART draft bill 2008. Disconnect.

Infertility. In the arms of the angel.

Surrogate mother. Brave. Desperate. Exploited? Just a woman.

The clinics. All knowing. All powerful. In complete control.

ART. A patient’ story

Listen to: The western demand. Bioethics?

Surrogacy legal trouble.

Fertility- infertility dialectic (ART Bill 2008) part IV

By ARTPateint,

Infertility and health care: After a little searching on the Government of India website , I found that they do have an “infertility control program”. Unfortunately it is only for cattle. And this being the attitude of our public sector health insurance Cos.:

New India argued that these procedures were expensive and did not require hospitalisation. More significantly, the argument went, infertility was not a disease as in such cases it could be a result of, among other things, stress MEDICLAIM exclusions: Congenital external disease, sterility, venereal disease, intentional self-injury, use of drugs, alcohol, rest cure etc

Please note the other conditions infertility is clubbed with. Implications being- either we brought it on ourselves through poor lifestyle choices, or we are infertile because of some inherent defect and should not be procreating anyway. To be fair, pregnancy or its complications are not covered either.

So much for all the comments about health insurance for surrogates. Reproductive health insurance doesn’t exist for anyone and the Govt. doesn’t consider it necessary. Are our so called Womens advocates addressing these issues at all?

ART and infertility: Here as a background I quote from SAMA’s booklet on women’s health rights:

The women’s movement thus had played a crucial role in systematically campaigning against hazardous contraceptives, coercive population policies and sex selective abortion. However, there had not been systematic engagement of the movement with Assisted Reproductive Technologies making our understanding of these technologies and their implication on women inadequate. It is important to understand the context in which these technologies are used, uses/abuses to which they are put to and the implications that these have on women’s health and lives. This is because, where at one level there is unavailability of necessary medical technologies, at the other level there is over medicalization. What becomes fundamental for the women’s movement is to question the social stigma associated with infertility. But simultaneously also to deglamourise these technologies by bringing in the real picture of low success rate, side effects of the hormonal drugs that are used in the treatment and anguish of women undergoing treatment. Given the pace at which these technologies are invading lives of women, these issues cannot be left unattended by the ongoing women’s movement of the country.

PLEASE-before the judgmental and hysterically paranoid condemnation (over medicalisation) of ART let there be a minimum understanding of the technology and the real causes of infertility and the effects of infertility on the lives of women and men. There is nothing glamourous about ART or the infertility it treats. Media reports on ART are full of misinformation,moralistic judgement,bias, ridicule ,denial of the medical realities behind an inability to conceive in the vast majority of cases, and blatant Victim-blame of the patients and demonization of both patients and the medical professionals involved.

The pain caused by infertility, however, is not restricted to ‘Social stigma’. The longing for having a baby goes deeper than worrying about what society thinks. A success rate of 20-45% per cycle is a definite improvement over a 0% chance of natural conception in most cases. Side effects of the drugs are easy to bear compared to the emotional pain of infertility and the physical pain of some of the conditions that cause it.

ART did not invade our lives. Infertility did. We embrace the technology with the grateful thought that at least it gives us some hope and more options than previous generations of women had.

(This post is based on the discussion from the previous posts here. It is an attempt to understand how infertility is being addressed/understood by the Government, Womens organization, patients and by the majority/fertile. Since ART involves multiple participants, it is necessary to understand the different perspectives of each group, before highlighting/pinpointing the drawbacks in the draft regulations, that can then be sourced as effective, viable feedback to ICMR.)

Fertility and adoption

………….the government does not consider infertility to be a real disease that deserves treatment. How many good government hospitals have ART centres ??? ART is considered a luxury or a selfish indulgence in our overpopulated country of 1 billion where there are sooo many children already born who need a home.

This commentators words has me surfing the web, the University library and mostly my own beliefs for some explanation. Not because of the ART draft that I’m trying to understand in the context of surrogate mothers but more along the lines of personal realization from these discussions, a moment of a clarity that I want to record for myself and maybe share with others.

The first part of the comment relates to the basic reason for the development of ART. Infertility being that reason, for the development of elaborate and specific areas of sciences and technologies and the policies being put in place to regulate and prevent exploitation of the vulnerable participants. But why does it seem like a private enterprise? Why is the government not an active participant? Or is it? The role of monolithic beliefs that overpopulated countries are somehow free of infertility, and obvious solutions are available such as adoption permeates deep into the thinking of individuals and systems, me included.

Similarly, monolithic beliefs that women at the lower economic rung are prolific breeders, hence their infertility issues becomes the least of our concerns. Infertility due to poor nutrition, poor health care, early marriage, early pregnancies, miscarriages, abortions, and physical injury are common to poor Indian women. They will probably be significant contributors to the statistics of infertile numbers in the country (needs verification). How does this affect her life struggles? Will ART ever become accessible to her in the absence of active government participation?

The commentator’s following weary statement relates to suggestions for adoption, both by society and in the draft regulations:

2.4 (p 51) The counsellor must invariably apprise the couple of the advantages of adoption as against resorting to ART involving a donor.

The reasons for wanting to have a baby by ART for an infertile couple are personal and are no more or less sacred than a fertile couple wanting to have one of their own. Suggestions for adoptions in the face of many poor children needing homes should work for either groups. Both fertile and infertile couples should be encouraged to adopt. Would a regular fertile couple fore go a chance to reproduce in order to give a home for the homeless children?

A personal change in attitude for me, arising from these discussions, is that I will never wonder, why don’t they adopt? It is none of my business. Instead I would ask why don’t I adopt? Why don’t the rest of the fertile ones worry about giving homes to the poor children? Why should homeless children by implication be the moral responsibility of only the infertile couple and not the fertile ones?

Expert committee (ART Bill 2008) Part III

This started out as a simple question to Raghu Karnad, whether there were any women on the expert committee? To me it had seemed very strange that women could have sat on this committee and come up with a set of regulations that was devoid of safeguards for the surrogate mothers. Raghu kindly sent the list of experts (pasted below). A quick glance at it shows there were several women on board. A closer look and you will see many of them are chief players in the ART scene. They are representing private clinics that are headlong in the business of ART. They maybe exceptionally gifted doctors with tremendous amount of experience, but is there not a conflict of interest when a person who is part of an industry is also asked to serve on a committee that drafts regulations to police the very same industry?

Not one but several of them are from the private sector. A significant number pf experts on the committee, expertise apart, are business men and business women of the ART industry.

Others are from ICMR, a few lawyers and two from ministry of family welfare. As Mary E John pointed out, important representation of women’s organization and other groups were not included: (Comment # 4)

“Let me begin by noting that it is a great pity that people like Karnad did not use their privileged access to the drafting of the Bill to encourage a more democratic process – representatives of women’s organizations, consumer groups, public sector service providers, experts on ethics, child development and so on, were conspicuous by their absence. (If this was not so, I am happy to be corrected.) Why has there been no forum for publicly debating the Bill till women’s organisations demanded this, organized a national consultation in November 2008, and ensured that the draft was placed on the ICMR website for suggestions and feedback? “
So the draft committee had an almost exclusive circle of ART clinic practitioners, ICMR and NIRRH scientists to debate and critically evaluate the science part of the draft. A google and PubMED search of these scientists showed that some had no publications, some had a few in reproductive biology, none of their names came up with significant publications that contributed to the development of any of the ART technologies and the related science. I would be happy to be corrected. The only one who did have publications in ART was Gunasheela, coauthoring 3 papers with Australian scientists, she also runs an ART clinic.

Is India researching and producing these technologies at all, would be my next question? If it is, why were those scientists not a part of this expert committee? If we are not researching these technologies and associated scientific areas ourselves, we are then just users of imported technology. Our experts are just technically skilled to use them. And here we are about to pass a law that is based on science and technology that essentially nobody has any deep knowledge or insights about. Let alone be in a position to assess the impact of it on our society. Such a scary prospect. This cannot be. Health of women and children is on the line here. So, Please let me be wrong!

Purely on scientific terms the team’s expertise should have covered a wider range of areas than represented here. Expertise as evidenced from peer reviewed publications of potential committee members, that have significantly contributed to the worldwide understanding and practice of different aspects of ART.

Anyway, it is never too late to at least get significant input from in house experts in the country, if any, to critically evaluate the draft regulations before it becomes an act. And also sent to external experts for input. Is there any reason why experts from other countries cannot comment on the scientific content and implications of the draft regulations?

ICMR expert committee drafting the ART regulations Bill 2008.
Dr. Baidya N. Chakravorty
Institute of Reproductive Medicine

Dr. Pushpa M. Bhargava
Former and Founder Director, CCMB,

Dr. Anand Kumar T C
Chairman, Hope Infertility Clinic

Dr. Sulochana Gunasheela
Ob-Gyn, Gunasheela Surgical and Maternity Hospital

Dr. Sudarsan Ghosh Dastidar
Director, Ghosh Dastidar Institute for Fertility Research

Dr. Mohinder Kochhar
Sr. Consultant Ob-Gyn, Sir Ganga Ram Hospital

Dr. Kamini Rao
Ob-Gyn, Bangalore Assisted Conception Centre

Dr. Mehroo D. Hansotia
Ob-Gyn, Fertility Clinic & IVF Centre, Mumbai

Dr. Sadhana K. Desai
Ob-Gyn, Fertility Clinic & IVF Centre, Mumbai

Dr. Chander P. Puri
Director, National Institute for Research in Reproductive Health

Dr. Firuza R. Parikh
Director, Dept. of Assisted Reproduction & Genetics
Jaslok Hospital & Research Centre

Shri Rajeev Dhavan
Senior Advocate, Supreme Court of India

Dr. Mira Shiva
Head of Public Policy, Voluntary Health Association of India (VHAI)

Dr. Lalrintluangi
Deputy Commissioner, Deptt. of Family Welfare,
Ministry of Health and Family Welfare

Dr. Vikram K. Behal
Deputy Commissioner, Deptt. of Family Welfare,
Ministry of Health and Family Welfare

Dr. Vasantha Muthuswamy
Sr. Deputy Director General, Division of Basic Medical Sciences, ICMR

Shri. Nirakar C. Saxena
Deputy Director General, Division of Reproductive Health and Nutrition, ICMR

Dr. Radhey S. Sharma
Deputy Director General, Division of Reproductive Health and Nutrition, ICMR

Dr. Nomita Chandhiok
Assistant Director General, Division of Reproductive Health and Nutrition, ICMR

Surrogacy agreement (ART Bill 2008) Part II

FORM – J Agreement for Surrogacy (See Rule 15.1, p91)

Why this form perplexes me?

I have been reading the draft and keep coming back to this form and find many strange, disturbing issues here that hardly ever get referred to in the draft bill. Several unexplained clauses appear in this form that actually binds the surrogate in a contract.

Now that I have read a little bit about this business of ART and have been discussing with friends about surrogacy, I am now trying to put myself in the shoes of a woman who is about to consider surrogacy. I will tell you why this form would stop me in my tracks about such a consideration, be it as a voluntary, commercial or altruistic mother;

[I, ________(the woman), with the consent of my husband (name), of ______ (address) have agreed to act as a host mother for______who are / is unable (or do not wish to) have a child by any other means.]

If I were to be a voluntary or altruistic mother, I would question what (or do not wish to) part of this agreement is? Why would I volunteer for someone who does not wish to go through the pains of pregnancy? I understand if it is a medical condition, what does ‘or do not wish to’ mean?

Is the draft committee laying out a situation where surrogacy can be sought without clear medical reasons? As is being suggested in the US media, the likelihood of women not wanting to interrupt their careers with maternity leave and resorting to surrogacy?

[I had a full discussion with ____of the clinic on ____ in regard to the matter of my acting as a surrogate mother for the child of the above couple.]

According to this I am counseled at the clinic, by a blank. What does that blank mean; a doctor, a team of doctors, social workers, lawyers, who?

[ I have been assured that the genetic mother and the genetic father have been screened for HIV and hepatitis B and C before oocyte recovery and found to be seronegative for all these diseases. I have, however, been also informed that there is a small risk of the mother or / and the father becoming seropositive for HIV during the window period.

I consent to the above procedures and the administration of such drugs that may be necessary to assist in preparing my uterus for embryos transfer, and for support in the luteal phase.]

This turns my blood cold. The draft has forms for tests of HIV and hepatitis for all parties concerned, and one keeps reading it as, if it turns negative, there is no fear to go ahead with the ART procedures. No warning, no safeguards, no anticipation and consequences in the event of surrogate mothers getting infected by HIV. Not even in passing. And then, bang in the consent/contract form she is expected to sign away saying that she has been informed that there is a small risk that the parents/donors may turn seropistive for HIV during the “window period”

Ok, my country is filled with women who rent their wombs because they are too poor to do anything else. Ok, they are uneducated, or educated but too filled with love and duty to care about their rights and be informed about risks to their health. But there is a small population of informed people, who care, who want to know, who know. Does the draft committee seek to disregard them also so blatantly?

Should not the ICMR expert committee have first and foremost addressed the risks regarding HIV? Provided the necessary safeguards, made the best practices mandatory for the clinics to follow in this regard? Such as quarantining embryos for six months and screening again after that, instead of blissfully taking a stand of she has consented in the form!

If there is even a tiniest bit of chance of the mother getting HIV simply because she is part of ART procedure, how much of thought and consideration should go into this aspect?

Should not the experts have an anticipated scenario of a surrogate, God forbid actually getting infected, and present to all, the public and the surrogates this horrific reality before they expect a signature on it?  What is  the role of these regulations if it does not protect the parties by informing? What if she does get infected? What about the baby? Will the couple still accept the baby? What about her, is she insured for this possibility?

More strangeness!!!

[I certify that (a) I have not had any drug intravenously administered into me through a shared syringe; (b) I have not undergone blood transfusion; and (c) I and my husband have had no extramarital relationship in the last six months.

I also declare that I will not use drugs intravenously, undergo blood transfusion excepting of blood obtained through a certified blood bank, and avoid sexual intercourse during the pregnancy.]

Avoid sexual intercourse during the pregnancy. Why? As far as I understand, this is advised when the pregnancy is considered high risk.

This clause is not explained in the draft anywhere, it just appears here, please correct me if I am wrong. Does this mean that the expert committee believes that surrogate pregnancies are high risk pregnancies? Or whatever the reasons please explain. Interested readers may want to read this study in this context.

In part I, it has been pointed out that in the case of the death of the parents provisions as alternate persons responsible for the child appears here in this form and not in the draft itself.

A lot of literature available on ART indicates that some/many of the commercial surrogates are unable to understand English and some even cannot sign their names and have to use their thumb print instead. In light of this, the agreement makes little sense to the surrogate. However, it does seem tailored to be used as a safety device by the clinics in case of litigation.

Is the contract and associated material available in local languages? An independent counselor (not connected to the clinic) should be available to advise the surrogate on the risks involved, in very simple terms and in the language spoken by the surrogate.

As the surrogate is the person in the contract who has the most at stake (her life), there should be clauses to protect her interests.

(emphasis in quotes are mine)

Surrogate mothers (ART Bill 2008) Part 1

I read a post on Surrogacy-politics at Kafila by authors Imrana and Mary who aim to bring the Assisted Reproductive Technology (ART) regulation Bill 2008 to open forum readers, for debate and discussion. Please read the post and comments to know where this is going. In response to their article, Raghu Karnad, who was on the team drafting an earlier version, allayed some doubts and raised many more in me. The bill itself is here. Sections of the regulations that did not appear self explanatory and satisfactory to my (lay person’s) curiosity and concerns have been copied here. These sections have the page number of draft bill, for easy reference. The short title for each of these regulations are mine, to help readers get a quick idea about it. My doubts on confusing issues in these regulations are at the bottom of each regulation, numbered 2 to 25 (bold).

These notes/doubts/questions here, in addition to the ones already voiced at Kafila, along with Mary and Raghu’s responses, have helped me focus a little more on some of the stuff in the bill. The topics have endless issues and run in many different directions, even while just gathering the basics to pose a question.

Though every aspect that the bill touches on, needs intense scrutiny, this post is limited to the sections related to the surrogate mother. It includes issues that affect voluntary, commercial as well as altruistic surrogate mothers. The second category (commercial surrogate mothers) are the ones who provide this service in exchange for money.

If readers can respond and alleviate my doubts as ungrounded with plausible reason/s, we can then delete it. If additional questions come to readers’ minds, which definitely will happen, given the diverse issues involved and depending on their own areas of knowledge, please do post them as comments and we’ll them to move to the relevant sections. .

It would be deeply appreciated for the post not to be viewed exclusively as a “woman’s issue”. When the biology of the woman is effected, either long term or in the immediate scenario, it invariably effects the man, the child, the family and society. Hence it is not just a woman’s issue, it is everyone’s issue.

Also, readers primed to think of this as an issue mainly effecting economically weaker section, third world cheap option business and such; which parts of it definitely are, such as highlighted in this post in NYT blog, please do keep eyes open for the possibility of surrogacy becoming an option for all women, in an unforeseen financial crunch, as in this case reported here, about an educated woman taking up this option when hit by the recession (the NDTV article title is misleading)..

Again, it is fine with me if the woman wants to be a surrogate to ease her economic burden as long as she is completely informed in her decision and the consequences of it. .

Better yet, one hopes that in the draft bill, in addition to legal issues, the experts would have taken care of the Indian woman involved with such a procedure, and that it provides the necessary safeguards regarding her health; physical, psychological and emotional..

Here are the sections from ART regulation bill:

1) Relevant Definitions (p4 -5):

t) “surrogacy”, means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it to term and hand over the child to the person or persons for whom she is acting as a surrogate; (p4)

u) “surrogate mother”, means a woman who agrees to have an embryo generated from the sperm of a man who is not her husband and the oocyte of another woman, implanted in her to carry the pregnancy to full term and deliver the child to its biological parent(s); (p5)

v) “surrogacy agreement”, means a contract between the person(s) availing of assisted reproductive technology and the surrogate mother;

w) “unmarried couple”, means a man and a woman, both of marriageable age, living together with mutual consent but without getting married (p5)

2) (Duties of ART clinic) – medical tests and surrogate (p15 +):

Assisted reproductive technology clinics shall ensure that patients, donors of gametes and surrogate mothers are eligible to avail of assisted reproductive technology procedures under the criteria prescribed by the rules under this Act and that they have been medically tested for such diseases, sexually transmitted or otherwise, as may be prescribed and all other communicable diseases which may endanger the health of the parents, or any one of them, surrogate or child. (p15)

What about tests for Genetic disorders?

3) Information confidentiality:

Assisted reproductive technology clinics shall ensure that information about clients, donors and surrogate mothers is kept confidential and that information about assisted reproductive technology treatment shall not be disclosed to anyone other than a central database to be maintained by the Indian Council of Medical Research, except with the consent of the person or persons to whom the information relates, or in a medical emergency at the request of the person or persons or the closest available relative of such person or persons to whom the information relates, or by an order of a court of competent jurisdiction. (p16)

Does this mean ICMR is the sole agency that can access and use this information? I understand the need for patient confidentiality, but isn’t this the data that should be used for sociological and medical research?

4) Determining patients requesting surrogacy:

No assisted reproductive technology clinic shall consider conception by surrogacy for patients for whom it would normally be possible to carry a baby to term. Provided that where it is determined that unsafe or undesirable medical implications of such conception may arise, the use of surrogacy may be permitted. (p16)

a) How are new technologies accounted for? Some solution may be available in some other part of the world (wrt to foreign seekers of surrogacy) such as ovarian transfers from twin sisters, which in future has the scope of being available for non twin relatives too.

b) How does one deflect off these requests, where a solution maybe available elsewhere?

c) Clear reasons where surrogates are necessary would be useful;

For example, Florida law requires that a woman have a medical indication for a gestational carrier to be utilized. The most common indications include a woman who has congenital absence of the uterus, prior surgery to remove her uterus, severe scarring of the uterine cavity, or a medical history that precludes pregnancy. In addition to meeting the medical requirement, a separate legal contract is required before treatment can begin.

5) Material and information storage use and misuse:

All assisted reproductive technology clinics shall maintain detailed records, in such manner as may be prescribed, of all donor oocytes, sperm or embryos used, the manner and technique of their use, the individual or couple or surrogate mother, in respect of whom it was used, and the deoxyribonucleic acid (DNA) fingerprint of the individual or couple and the child born as a result of assisted reproductive technology treatment or procedures.(p17)

Records maintained under sub-section (1) of this section shall be maintained for at least a period of ten years, upon the expiry of which (p18) the assisted reproductive technology clinic shall transfer the records to a central database of the Indian Council of Medical Research.

a) Strongly disagree here, the data should be simultaneously stored at the clinic and ICMR, information about day to day procedures/ materials should be backed up at ICMR

b) Very strongly object to data of biological material (eggs/sperms/embryos) that can be misused by clinics left unmonitored.

c) Why should the clinic sit on it for 10 years and then hand it to ICMR? This provides scope for data and material misuse.

6) Semen banks advertise for and compensate donors (egg/sperm/surrogate):

Semen banks shall obtain semen from males between twenty one years of age and forty five years of age, both inclusive, and arrange to obtain oocytes from females between twenty one years of age and thirty five years of age, both inclusive, and examine the donors for such diseases, sexually transmitted or otherwise, as may be prescribed, and all other communicable diseases which may endanger the health of the parents, or any one of them, surrogate or child. (p20) A semen bank may advertise for gamete donors and surrogates, who may be compensated financially by the bank. (p20)

This seems to be different from the surrogacy agreement, see definitions. Need clarifications here.

7) Number of times a donation can be done/used:

A semen bank shall not supply the sperm of a single donor for use more than seventy five times (8) No woman shall donate oocytes more than six times in her life, with not less than a three-months interval between the oocyte pick-ups. (p20)

Why is pregnancy not accounted here?

The definite number of pregnancies that a surrogate is limited to should be referred here, has it been worked out?

8) Rights of child conceived through surrogacy in relation to surrogate:

The parents of a minor child have the right to access information about the donor, other than the name, identity or address of the donor, or the surrogate mother, when and to the extent necessary for the welfare of the child. (p25)

a) Access to information, please clearly state what kind of information, medical or otherwise.

b) If it is information that is already stored in the database, it violates section 9 see above; where it states that consent is necessary for all parties, the one right above sounds like it is mandatory that information is available to the parents.

10) Surrogacy agreement is legally enforceable:

Both the couple or individual seeking surrogacy through the use of assisted reproductive technology, and the surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable. (p26)

a) Here case scenarios would be useful, what are possible situations that would lead to legal tussles between these parties?

b) Who fights on behalf of the surrogate? Whom will it be charged to?

c) Some of these cases appear very complicated, see here:

http://www.asrm.org/Media/LegallySpeaking/legally_index.html

11) Health insurance of surrogate mother:

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 couple or individual seeking surrogacy. (p26)

a) There are always chances of long term effects after pregnancies, that might effect future pregnancies and her immune system in general, this must be taken into consideration. There has to be provision for long term insurance that surrogate mothers can fall back on in future?

b) What happens if the surrogate mother dies during childbirth? Will there be compensation and who gets compensated?

c) Post childbirth complications will be covered by the insurances, one assumes, does it definitely include treatment for postpartum depression? And other infections that commonly arise due to childbirth?

-A comprehensive list of medical situations that arise due/during/after childbirth, has to be listed in the draft. And the surrogate provided for insurances for those.

12) Compensation from surrogacy seeking couple/individual:

Notwithstanding anything contained in sub-section (2) of this section and subject to the surrogacy agreement, the surrogate mother may also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate. (p26)

I do not understand this. Somebody please clarify whether it is the semen banks and the ones availing the services together/individually compensate the surrogate mother.

13) A surrogate mother shall relinquish all parental rights over the child. (p26) .

Imrana and Mary suggested that in the event that she cannot part with the baby………

I agree.

13) Number of surrogate pregnancies allowed in the Draft Act:

No woman under twenty one years of age and over forty five years of age shall be eligible to act as a surrogate mother under this Act. Provided that no woman shall act as a surrogate for more than three successful live births in her life. (p26)

The word successful live births is worrisome, unsuccessful pregnancies, miscarriages etc need to be accounted here. Specifically, does it exclude a still-born baby delivered after a full term pregnancy (or in the third trimester)? Every pregnancy, whatever way it ends, has health implications, wear and tear on the body and mind.

14) Rules concerning seeking of surrogacy:

Individuals or couples may obtain the service of a surrogate through a semen bank, or advertise to seek surrogacy provided that no such advertisement shall contain any details relating to the caste, ethnic identity or descent of any of the parties involved in such surrogacy. No assisted reproductive technology clinic shall advertise to seek surrogacy for its clients.

Interesting, seems like proliferation of handlers for the industry. This seems like an eyewash, tailored for clients seeking surrogate mothers who are from outside India, the clinics offering services for surrogate pregnancies are certain to offer tacit services to help seek surrogate mothers.

15) Number of embryo transfers allowed according to Draft Act:

If the first embryo transfer has failed in a surrogate mother, she may, if she wishes, decide to accept on mutually agreed financial terms, at most two more successful embryo transfers for the same couple that had engaged her services in the first instance. No surrogate mother shall undergo embryo transfer more than three times for the same couple. (p27)

Ambiguous! I would like to know if there is ceiling to total number of embryo transfers during a woman’s lifetime is considered, given each transfer  can be risky, with dangers to health of the surrogate?

16) In the event of child born with abnormality:

The person or persons who have availed of the services of a surrogate mother shall be legally bound to accept the custody of the child / children irrespective of any abnormality that the child / children may have, and the refusal to do so shall constitute an offence under this Act. (p27)

The case for adoption of healthy children is right here.

17) Access to information about the people involved:

Subject to the provisions of this Act, all information about the surrogate shall be kept confidential and information about the surrogacy shall not be disclosed to anyone other than the central database of the Indian Council of Medical Research, except by an order of a court of competent jurisdiction. (p27)

a) Will it be used by ICMR for research? What if independent researchers want to avail the data for purely research reasons, will some provisions be made? A consent form maybe?

b) The surrogate mothers health, the children born out of these procedures have to be tracked, such as the study below;

http://health.usnews.com/articles/health/healthday/2008/11/17/assisted-reproductive-technology-linked-to-birth.html

18) Surrogate mothers cannot be an oocyte donor:

A surrogate mother shall not act as an oocyte donor for the couple or individual, as the case may be, seeking surrogacy. (p27)

Would like to understand the reasoning behind this?

19) Spouse consent for surrogate:

In the event that the woman intending to be a surrogate is married, the consent of her spouse shall be required before she may act as such surrogate. (p27)

a) There have been cases after giving the consent, the spouse has had second thoughts and filed for a divorce (in the US) what then?

b) I had already asked this as a question to Mary; What if the woman is unmarried does she not require consent from anybody? Mary also seeks the elusive answer.

20) Who can be surrogate:

A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate. (p27)

21) Foreigners interaction with surrogate through local guardian:

A foreigner or foreign couple not resident in India, or a non-resident Indian individual or couple, seeking surrogacy in India shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after the pregnancy as per clause 34.2, till the 28 child / children are delivered to the foreigner or foreign couple or the local guardian. Further, the party seeking the surrogacy must ensure and establish to the ART clinic through proper documentation that the party would be able to take the child / children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be. (p28)

There are many questions asked about this in other forums. Is there any or no direct interaction between the surrogate mother and parents?

22) A couple or an individual shall not have the service of more than one surrogate at any given time. (p28)

Curious to know the reason.

23) Determination of status of the child:

A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through sexual intercourse. (2) A child born to an unmarried couple through the use of assisted reproductive technology, with the consent of both the parties, shall be the legitimate child of both parties. (3) In the case of a single woman the child will be the legitimate child of the woman, and in the case of a single man the child will be the legitimate child of the man (p28)

a) In all these contexts, what if parties die, God forbid this, but death is a possibility during this period, what happens to the child then? In the draft I found reference to death only in the section  which contains consent forms, essentially blanks for names of persons, see page 93, 133. The blanks, as I understand, are for the names (as it is a contract form). They cover the couple and/or the local guardian.

b) The wording that they are legally bound is reassuring but needs clearer identification especially if that person is located in some foreign country?

c) Are unmarried couples recognized in India?

This begs a broader question: is the Draft Bill in accordance with Indian laws governing marriage, divorce, homosexuality and children born out of wedlock? For example, if homosexuality or same-sex marriage is illegal in India (this needs confirmation, with the article and section of the Constitution), then how are same sex couples allowed to be parents of the child?

24) In the case of divorce of surrogacy seeking parents:

In case a married or unmarried couple separates or gets divorced, as the case may be, after both parties consented to the assisted reproductive technology treatment but before the child is born, the child shall be the legitimate child of the couple. (p29)

25) Rights of the child born by surrogate other:

The need to make the couple aware, if relevant, that a child born through ART has a right to seek information about his genetic parent / surrogate mother on reaching 18 years, excepting information on the name and address – that is, the individual’s personal identity – of the gamete donor or the surrogate mother. The couple is not obliged to provide the information to which the child has a right, on their own to the child when he / she reaches the age of 18, but no attempt must be made by the couple to hide this information from the child should an occasion arise when this issue becomes important for the child. (p69)

What about surrogate mothers rights, it is assumed that she will be ok with a child turning up at her house 18 years later?