It's a mistake to believe surrogacy can be regulated
The government's decision to ban commercial surrogacy and regulate surrogacy services is a welcome step. But it would be a mistake to believe the proposed law is going to end unethical practices in the multi-billion rupee surrogacy business.
India's experiments with regulating medical technologies in the past three decades have miserably failed to achieve their objectives. Two most glaring examples of this trend are the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, and the Transplantation of Human Organs Act, 1994.
The PCPNDT Act was enacted to ban sex selection and put an end to the practice of selective abortion of female foetuses, while the transplantation law was to curb trade in human organs, mainly kidneys.
Both laws were enacted after years of hue and cry from health activists and judicial interventions.
After enactment, it took several years for rules and regulations to be developed and actual implementation of the two laws. Twenty years later, sex selection is still on.
The declining child sex ratio figures from the 2011 Census and other studies are a testimony to this.
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| India’s experiments with regulating medical technologies in the past three decades have miserably failed to achieve their objectives. |
The recent busting of kidney rackets in five-star hospitals in Mumbai and Delhi shows that business in human organs is thriving despite the law banning commercial trade in organs.
Another medical law - Infant Milk Substitutes, Feeding Bottles and Infant Foods Act 1992 (IMS Act) - which bans marketing of baby foods for infants below six months too has had somewhat limited success.
The problem with such medical laws is two-folds - they all leave one or more loopholes that are later brazenly misused.
Second, most states are lax in implementing such laws and are at times working in cohesion with the same people whom they are supposed to regulate.
It takes years for violators to be convicted and punished. Procedures and mechanisms for filing complaints are most user-unfriendly.
For instance, "Appropriate Authorities" and ethics panels have been envisaged under different medical laws, but they hardly exist in many states. A similar mechanism has been proposed under the Surrogacy Act as well.
The biggest loophole in the government's approach to commercial surrogacy is its decision to selectively ban commercial surrogacy and regulate the surrogacy business, without touching the parent industry - the Assisted Reproduction Technologies (ARTs).
It is absurd to hope that surrogacy can be regulated while ART clinics can remain unregulated.
This is despite the fact that we have been discussing this issue for 20 years now. The Indian Council of Medical Research (ICMR) guidelines came out in 2005, but a legislative framework to end unethical practice of trade in human reproductive cells has been stalled by vested interests like medical lobbies.
Even the larger issue is the fact that the government has been directly and indirectly helping commerce in medicine, by actively promoting medical tourism and offering tax benefits.
A bulk of medical tourists comes to India for cheap ART, surrogacy and transplantation-related services - all of which are unregulated and thrive on unethical practices.
If the government is serious about ban on commercial surrogacy or trade in kidneys, it should stop being a facilitator for unethical medical tourism as well.
(Courtesy of Mail Today.)