Destroying The Family by Averthanus L. D’Souza

GOA, July 28, 2010, 14:00 Hrs (Averthanus L. D’Souza):

The Government of India is on the verge of destroying the family as the basic unit of society and promoting pregnancy as a commercial enterprise. The Ministry of Health and Family Welfare and the Indian Council of Medical Research, New Delhi have prepared a draft of a Bill titled “The Assisted Reproductive Technologies (Regulation) Bill – 2010 to be submitted to the Lok Sabha at its forthcoming session.

The most striking feature of this draft Bill is that it will permit Assisted Reproductive Technology to be made “available to all persons including single persons, married couples and unmarried couples.” (Sec. 32 (1) of the draft Bill). In another Section 20 (6) “Assisted reproductive technology clinics shall provide professional counselling to patients or individuals about all the implications and chances of success of assisted reproductive technology procedures in the clinic and in India and internationally, and shall also inform patients and individuals of the advantages, disadvantages and cost of the procedures, their medical side effects, risks including the risk of multiple pregnancy, the possibility of adoption, and any such other matter as may help the couple or individual arrive at a decision that would be most likely to be the best for the couple or individual.”

The significant aspect of this Bill is that it seeks to make surrogacy a commercial enterprise which will be accessible to anyone, including single individuals and homosexuals and lesbians. The Section 2, “Definitions” includes “dd. “unmarried couple” means two persons, both of marriageable age, living together with mutual consent but without getting married, in a relationship that is legal in the country/countries of which they are citizens.” It also includes “bb “surrogate mother”, means a woman who is a citizen of India and is resident in India, 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 viability and deliver the child to the couple/individual that had asked for surrogacy.”

Although it is not explicitly stated in so many words, it is clear from the draft Bill that the intention of the drafters is to promote surrogacy by Indian women as part of the “medical tourism” syndrome which has afflicted India in recent times. Although the Bill proposes a ban on “the sale, transfer or use of gametes, zygotes and embryos, or any part thereof or information related thereto, directly or indirectly to any party outside India. . . ( Sec. 29 (1)).” there is no corresponding prohibition of import of gametes, zygotes or embryos from outside India, to be used in Indian surrogate mothers. In fact, one of the largest national dailies recently reported that the clinic of one of the drafters of the Bill – the Rotunda Fertility Clinic in Bandra, Mumbai, had performed in vitro fertilization using the sperm of Scandinavian origin and the egg of an Indian woman to produce twins, which, it was later discovered, were not genetically related to the woman who commissioned the surrogacy. The case is bogged down in legal tangles, involving the Consulate of Norway.

It is striking that five of the members of the drafting committee of the Bill represent clinics that have a vested interest in promoting in vitro fertilization. This makes the draft Bill highly suspect from the very beginning. Moreover, the very purpose of surrogate motherhood is deliberately obfuscated by the legal jargon of the draft Bill. In the common man’s perception, the technology of assisted reproduction is intended to assist normally married couples – one man and one woman – who find themselves unable to conceive a child, to get a child. Instead, what we are looking at, through the draft Bill, is a massive business of surrogacy, to be controlled by the Government, because the private fertility clinics all over the country, do not trust one another to play by some agreed rules. In fact, there are no agreed rules. Hence the proposed Bill.

The more disturbing aspect of the proposed Bill is that it makes the production of children into a production line process, similar to the production of vegetables, fruits, fish or other agricultural products in a food-processing plant. What is envisaged in the draft Bill is a government controlled factory for the production of children. In effect, children are treated as a saleable commodity and the rights of the child are completely obliterated. Although Chapter IV of the proposed Bill – “Duties of an Assisted Reproductive Technology Clinic” is devoted to spelling out the details governing the process of application of the technology, and even though the “rights of a child born through the use of assisted reproductive technology” is mentioned in sub-section (7), nowhere are these rights of the child spelt out in the draft Bill.

Added to this confusion about the rights of the child born as a result of ART, is the fact that the Bill throws a curtain of secrecy over the entire process of surrogacy. Section 20(3) seeks to ensure that “When an ART bank receives a request from an assisted reproductive technology clinic for a donor oocyte, a responsible member of the staff of the ART bank will accompany the particular donor to the assisted reproductive technology clinic, and obtain a written agreement from the authority designated for this purpose by the clinic, that the clinic shall, under no circumstances (except when asked by a court of law), reveal the identity of the donor to the recipient couple or individual or to anyone else; the clinic shall also ensure that all its staff is made aware of the fact that any step leading to disclosure of the identity (i.e.name and address) to the recipient couple or individual or to anyone else, shall amount to an offence punishable under this Act.” Such a provision has very macabre implications. In addition to the surrogate mother not knowing who the donor is, the child born from this procedure is permanently barred from finding out who his or her parents are. It will require an application to a Court of Law to extract this information from the “Central Depository” of the Department of Health Research. (vide Sec.32 (4)).

Very insidiously, indeed, the draft Bill has made it easy for assisted reproductive technology clinics to obtain registration through “deeming” provisions included in the Act. Section14(1) provides that “ . . . If an assisted reproductive technology clinic that has applied for temporary registration under this clause to the State Registration Authority does not receive the registration or hear from the above Authority within 60 days of the receipt of the application by the Authority, the clinic would be deemed to have received the temporary registration.” Likewise, Section 16(5) provides that “The Registration Authority shall be deemed to have granted renewal for three years to the applicant if the applicant does not receive a definitive communication from the Registration Authority regarding the renewal application within sixty days of the receipt of the application in the office of the Registration Authority.” Knowing the eccentric way in which our Governments function, it should not come as a surprise that anyone and everyone who wants to start a business of ART can get registration by way of the deeming provisions in the law. The irony in this situation is that the law seeks to control and monitor the functioning of all the assisted reproductive technology clinics which are presently in existence, and those that may start up in future.

Apart from the few anomalies indicated in this article, there are some very basic ethical issues which need to be addressed, but which will be elaborated on in a sequel to this article.