The Assisted Reproductive Technology Bill has been pending in the Parliament for two years

Tusshar Kapoor celebrates fatherhood but Indian surrogacy remains a legal blackholeTwitter
Features Indian surrogacy Tuesday, June 28, 2016 - 17:04

Bollywood actor Tusshar Kapoor caught much attention when he recently became Bollywood’s first single father through Assisted Reproductive Technology (ART). Of course, Kapoor isn’t the first Indian to attain fatherhood through ART. He comes a decade after a 46-year-old Amit Bannerjee, a divorced Chartered Accountant in Kolkata, became a father in this way.

While many in Bollywood have lauded the Bollywood actor, the event has also stirred up the debate about In-Vitro Fertilisation (IVF) and the surrogacy industry in India, especially with regard to single parenthood. Although a decade has passed since the first child was born to a single father through ART, this process remains unregulated, even as adoption criteria for single fathers remain stringent.

Unlike the guidelines for adoption, a single man is not barred from fatherhood even if the child born out of surrogacy is a girl.

“There are only guidelines given by the Indian Council of Medical Research (ICMR), there is no law. While I personally think there is nothing wrong with a single parent opting for surrogacy, the reason Tusshar Kapoor did not break a law is because there is none,” says Dr Nayna Patel, Medical Director for Akanksha Infertility Clinic in Gujarat.

The Assisted Reproductive Technology (Regulation) Bill which has been pending in the Parliament for the last two years, excludes foreign couples (non-Indian couples and those not holding an Indian passport), same-sex couples and single persons from the gamut and restricts ART to married Indian heterosexual couples.  

Dr Patel says that the exclusion is unfair and wrong on a personal as well as an economic level. “It’s a personal choice to have a child. Why should people wanting to be single parents be deprived of it?” she asks. She also adds that the bias towards married couples for ART eligibility (especially in artificial insemination through donor (AID) and surrogacy) is misplaced in a society that is fast evolving and where many people may choose to remain unmarried but have children anyway. “How can you still want people to live in the era of Ram and Sita?” she says.

From the economic point of view, Dr Patel says that a blanket ban on foreign couples or people wanting to be single parents would not stop them from opting for surrogacy. “It would only lead to a bigger illegal market,” she says.  

Author of “Baby Makers: The Story of Indian Surrogacy” Gita Aravamudan agrees and adds that lack of regulation could also lead to exploitation of women who opt to be surrogate mothers at the hands of agents.

"Many of these women belong to lower socio-economic strata and opt to be surrogate mothers because it pays well. They don't necessarily do it out of coercion," she says. 

Gita argues that while there is nothing wrong with single parents wanting to opt for surrogacy, a system of background checks needs to be institutionalized to ensure that the child will be in capable hands. Presently, checking the parent(s) for financial, emotional and psychological stability is not mandatory, she says.

"Many people also prefer male children, so sex-selection is practiced when it comes to planting the embryos inside the surrogate mother's womb," says Gita, highlighting another problem that legislation needs to tackle.

“You can’t stop technology,” she argues, “IVF, test-tube babies are here to stay. So the best thing we can do is to regulate it so that the best interests of all parties involved can be served.”

Meanwhile Andal Damodaran, former president of the Indian Council for Child Welfare (ICCW) says that there needs to be more focus on the rights of the child also; for instance, provisions for when a child wants to know his or her birth mother or birth father when he or she grows up.

In cases where the sperm and egg are taken from a couple the embryo is planted into the womb of the surrogate mother through IVF, the biological mother passes on no genetic material to the child. “However, in a case like Tusshar Kapoor’s, he would have bought the egg without knowing the identity of the donor,” explains Gita. Therefore, if an individual or couple opt for surrogacy with the sperm or egg donor other than their partners or someone known to them, the identity of the donor would be anonymous.

“If a child asks questions when he or she grows up, we should be ready to answer them,” says Damodaran. She adds that there should be a system of continuous documentation and follow-up at least for the first few years after the child is born and taken by the parents to ensure he or she is taken care of.

However, Gita explains anonymity of the donor is necessary because otherwise, it would lead to demands of specific sperms or eggs. “People could come and ask for sperm of a fair, tall man with blue eyes and a high IQ. And while that’s not allowed even now, it still happens in some banks. That’s problematic,” she says.


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