Hyderabad’s recent surrogacy fraud case highlights how little is known about surrogacy laws in India. While the mastermind, Dr Namratha, and the child’s biological parents have been arrested, the Hyderabad police are yet to charge the intended parents. The Surrogacy (Regulation) Act of 2021 permits only altruistic surrogacy. The intended parents who paid Rs 35 lakh to Namratha are in breach of the law.
Namratha, the biological parents and five others were arrested on July 27 for cheating a Hyderabad-based couple by promising them a child through surrogacy but handing them a baby who is not biologically theirs.
The arrests followed a complaint from the intended couple, who had approached Namratha’s Universal Srushti Fertility Centre in Gopalapuram. Though the couple opted for surrogacy, a DNA test later revealed that the child was unrelated to them.
While there has been significant focus on the child’s custody and the criminal breach of trust, the fact that the intended couple are in breach of the law has been largely ignored. According to the 2021 Act, commercial surrogacy is illegal. The Act only permits ‘altruistic’ surrogacy. By law, the surrogate’s sole motive must be an intention to help the couple and not financial gain. Only the surrogate’s medical expenses are to be paid for. Further, the surrogate must be a close relative of the intended couple.
The Hyderabad couple actively sought out a stranger for surrogacy. They employed the services of a fertility clinic and paid Rs 35 lakh to Namaratha. These actions violate the law in toto. So why have the child’s biological parents been jailed while the Hyderabad couple have not?
“Even educated, well-informed people are unaware that commercial surrogacy is now a crime. They approached the police, and only then did they learn that they were active participants in an illegal enterprise. The biological parents were arrested for selling their child to Dr Namratha. That has nothing to do with surrogacy and is a well-established breach of law,” Deputy Commissioner of Police (DCP) Rashmi told TNM.
She also added that the investigation is ongoing and that additional aspects of the case are under examination.
The problems with the Act
While ignorance of the law is not usually considered an acceptable defence, some say that the couple’s alleged lack of awareness may not be surprising.
The Surrogacy (Regulation) Act, banning commercial surrogacy, was passed in 2021 amid stiff opposition from activists, lawyers and women’s rights groups, who pointed out the gendered notions of femininity and motherhood used to frame the Act, particularly with regard to financial compensation.
Gita Aravamudan, the author of Baby Makers: The Story of Indian Surrogacy, highlights how India was once a thriving hub for fertility treatment and surrogacy.
"Women were willing surrogates if this earned them money. And why not? Most of the surrogates used the money to support families, educate children and even build small houses. The 2021 act wasn’t made keeping in mind a woman’s perspective,” Gita tells TNM.
“The new law doesn’t tackle many of the root problems and focuses instead on doing away with commercial surrogacy. While regulation was necessary because many couples were cheated by illegal clinics and unscrupulous agents, this is exactly what the Act has not been able to stop because it has not been properly thought through," she adds.
The Union Ministry of Health and Family Welfare (MoHFW) provides a list of approved surrogacy clinics on the National Assisted Reproductive Technologies (ART) and Surrogacy Portal. However, several clinics across the country still conduct commercial surrogacy.
“One could walk into a suspect fertility clinic, have a conversation on commercial surrogacy and even agree on payment. The minute this conversation starts, the parties have entered the realm of illegality because of how little is known about the law,” human rights lawyer Amala Dasarathi says.
“This is why we have argued for better regulation instead of making the Act so stringent. Women who are still involved in commercial surrogacy enter into contracts and have no legal protection. In the manner in which the 2021 law is operating, it is quite unhelpful for all the people concerned,” she concludes.