Changes for India’s ART Industry?

Dubbed the “surrogacy capital of the world,” India’s assisted reproduction technology (ART) industry continues to expand, and remains unregulated. The death earlier this year of Premila Vaghela, who was eight months pregnant with an American couple’s child, alerted many to the risks that Indian women take on when they enter surrogacy agreements.

Recently, another tragic story has surfaced. Seventeen-year-old Sushma Pandey died in August 2010 after experiencing abdominal pain two days after undergoing egg retrieval at Rotunda Hospital, a suburban Mumbai fertility clinic. She had sold her eggs at least three separate times over the previous year and a half. The exact cause of her death is still unknown, but the clinic violated Indian Council of Medical Research (ICMR) guidelines by permitting her to provide eggs at such a young age, and according to media reports, may have failed to compensate her in full. Earlier this month, Bombay High Court criticized the Maharashtra state police for their minimal investigation into her death.

Both these women provided what they were paid for. The baby Vaghela was carrying survived, and Pandey’s eggs were probably put to use. But surely these women’s lives deserved protection beyond their commercial viability. With so many of those who are willing to sell their eggs or rent their wombs suffering from economic hardship, safeguards against exploitation are clearly needed.

A law to regulate India’s multi-billion dollar assisted reproduction industry has been in the works for some time. The draft Assisted Reproductive Technologies Regulation Bill-2010 will be presented to Parliament this winter, and even many inside the ART industry are eager to see it come to fruition.

If enacted, the bill would require that egg providers be between 21 and 35 years old, and that at least three months elapse between retrieval procedures. In addition, all fertility clinics would have to be included in a national registry that would be overseen by national and state advisory boards.

Surrogacy practices would also be subject to new rules. Surrogacy services would be available only for people incapable of carrying a baby to term on their own, and every surrogate would be appointed a local guardian who would be legally responsible for the child if the intended parents were not in India and able to immediately receive the child. Foreign couples would be required to produce a certificate from their home country stating that the child born of surrogacy would be recognized as a legal citizen.

The bill would make it illegal for a clinic to use pre-implantation genetic diagnosis for reasons other than inheritable diseases specified by the Registration Authority, or to determine at any stage the sex of the fetus. These proposals address preferences for male children and for gamete donors from a particular caste, which intended parents are increasingly expressing.

These changes would help protect everyone involved, but not everything in the bill is worthy of praise. Sama Resource Group for Women and Health, which has tracked the proposed law since its inception, has flagged a number of problems.

Unlike the 2008 draft of the bill, which mandated that payment for a surrogate be made in three installments with 75% at the beginning, the 2010 draft permits five payments with 75% as the final installment, after the child has been born. This change devalues a surrogate’s labor, and suggests that what is considered most worthy of compensation is the “product” – that is, the child.  According to Sama, the revision “is highly imbalanced, exploitative and unfavourable to the surrogate.”

In addition, the bill would prohibit surrogacy via intra-uterine insemination, which does not require third-party eggs and is thus less invasive than IVF, but means that the baby would be genetically related to the surrogate. This is clearly an effort to avoid any claims by a surrogate to the baby she delivers, and to maintain a more straightforward “commercial transaction.”

The 2008 version of the bill had limited the number of live births a surrogate could have (including her own children) to three, but the new bill would allow as many as five. And the bill would not limit the number of ART cycles a surrogate can undergo, though each cycle affects a woman’s health.

The bill’s stipulations about who is eligible to use assisted reproductive services are also problematic. It states that ARTs will be available to all married or unmarried couples as well as single people, but defines “couple” as two persons “having a sexual relationship that is legal in India,” where homosexuality has been decriminalized but not legalized. “Married” and “unmarried” couples are also defined as those in marriages or relationships that are legal in the country where they are citizens. According to Sama, the ambiguous language makes it unclear whether assisted reproductive technologies would be available for gay couples, and particularly for Indian gay couples.

Regulation of the quickly expanding Indian ART industry is long overdue. Women’s lives should not be acceptable sacrifices to a policy vacuum. However, there is a strong need for continuing critical engagement in what this regulation looks like.

Previously on Biopolitical Times:

•    India moves toward regulation of assisted reproduction and surrogacy
•    Indian Surrogate Dies Amid Complications in Eighth Month of Pregnancy
•    Made in India
•    Pregnancy without Borders: Reproductive Tourism's Global Reach