The recent proposal by the government of India to pass a surrogacy bill which bans commercial surrogacy has raised lots of hackles. Rather than allow this to become a highly polarised debate which just creates more heat rather than sheds light, let's first start the discussion with the areas on which everyone agrees, and then move on to what the areas of disagreement are , so we can see how we can bridge the gap.
I think everyone agrees that surrogacy needs to be regulated. Calling India the surrogacy capital of the world is hardly very complimentary. Effectively, we are saying that simply because poor Indian women are willing to be surrogates at a fraction of the cost at which women in other parts of the world are, everyone should come to India for surrogacy treatment because this is much more cost effective for them. While this may make a lot of business sense, there's nothing to be proud about this - it's a bit like tom-tomming the fact that we're the diabetes capital of the world !
Let's look at why the government felt the need to regulate surrogacy in the first place? After all, the number of surrogacy cases which is done in the whole country is less than 10000 per year, which is really a small number . Given that there are so many other much larger health issues which affect Indians, is it sensible for a government with limited resources to waste so much money on regulating such a tiny problem. Can we afford to make a mountain out of a molehill ?
The reality is that the government has been forced to step in because the medical profession has failed to regulate itself. The definition of a profession is that society grants professionals certain special privileges , and in turn expects that they will hold all their members to a minimum standard. This means the profession has the right as well as the responsibility to regulate itself. This means that the leaders of the profession have the duty of pulling up and policing members who do not follow accepted guidelines , so that they cannot abuse the privileges which they have been granted by virtue of being a professional.
Unfortunately , this doesn't seem to happen in the medical profession in India today. Thus, when an IVF doctor takes advantage of the fact that there is no law or regulation , and performs completely unacceptable treatments because he is not barred from doing so by the law, and other doctors ( who are his peers and are meant to keep each other in check) keep quiet and do nothing about this, then how can the government continue to remain a silent bystander ? This abuse of professional privilege by unethical doctors can ham patients.
Why do doctors keep quiet, even when they squirm internally when they see other doctors doing what is patently wrong ? This is partly because they feel it's not their job to police other doctors , and partly because doctors don't want to say anything bad in public about another doctor ( even though they may be quite happy to bad-mouth each other in private) - after all, if you live in a glass house , you don't want to throw stones at others.
The malafide actions of a few bad doctors attracts so much bad press, that the good work done by good doctors gets completely overshadowed. It's we doctors who are to blame for this sad state of affairs, because we keep quiet when some of our own colleagues do things which are completely unacceptable. We are now paying the price for our silence. The government quite rightly concludes that if we can't regulate ourselves , then they will have to step in and control the few bad elements amongst us.
Unfortunately , the problem is that government regulation is heavy handed and clumsy, and often ends up throwing the baby with the bathwater, which is exactly what's happened in this case. They've proposed a solution which extremely complex and expensive , because this all the government machinery allows them to do - after all, if you have a hammer, all you see are nails !
If you look at the tiny numbers of surrogacy cases being done today, in the big picture this issue is extremely unimportant from the overall health perspective of this country . We have far more pressing and urgent issues which the health ministry should be addressing . This distraction is going to come at a huge cost, because funds and resources which should go to setting up new primary health care centers gets diverted into policing surrogacy. The health ministry has better and more important things to do, and the return on investment in taking this punitive approach is very poor.
This is the big problem with the legislation - that most laws are punitive. They're not progressive or permissive , unlike the other constructive initiatives taken by the government - for example, giving all citizens an Aadhaar Card .
This is what has upset so many doctors. We feel the government keeps on and telling us what we can and what we cannot do. Our professional autonomy is being progressively eroded, and all of us are being treated as potential criminals. While regulation may be needed for controlling bad doctors , good doctors take offence when they are subjected to it, and many will treat this as a personal affront.
The truth is that things have come to this sorry pass because we doctors have chosen to turn a blind eye to the transgressions of our colleagues. It's because we refuse to police ourselves that the government is forced to step in and police us . If we had spoken up against the malpractices of our colleagues, the government would not have felt the need to interfere
I have also been very disappointed with the quality of the medical reporting. There is one key issue which all reporters seem to have overlooked. Let's look at the draft ART bill ( which was also supposed to regulate surrogacy ), and which has been on the ICMR website for more than 10 years now.( You can download it from http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf ) It was crafted and fine-tuned after inviting public debate and inputs from lots of specialties. This draft clearly allows only commercial surrogacy , and also has a format for the legal contracts which the surrogate and the intended parents have to sign before they can start surrogacy treatment . This was the stance of the Government of India for many years, and these were the guidelines which good IVF clinics were voluntarily following when doing surrogacy . In a few months , why has the government taken a complete u-turn and decided to completely ban commercial surrogacy ? Who made this change , and why did they make it? There's been a complete lack of transparency and this upsets everyone.
Many healthcare activists have criticised the bill because they feel it encroaches on a citizen's personal autonomy. They believe it is unfair because it takes away the right of citizens to choose their reproductive destinies. Their claim is that the government should not behave like a nanny state by interfering in such personal and private matters . It should allow people the freedom to decide for themselves , and if a single man decides to have a baby through surrogacy , and if the surrogate is willing to carry the pregnancy for him for the sake of money, they should be allowed to do so .
The problem is that it's not so simple. Intended parents are rich, while the surrogates are poor, and because IVF doctors make a lot of money by doing the surrogacy treatment, the incentives can be quite perverse. When such large sums of money are involved, there are likely to be unscrupulous doctors and other middlemen who will take advantage of the situation, and exploit these women. We do need to protect them before the matter gets out of hand. It's all very well to speak about the surrogate's right to choose , but we cannot ignore the fact that some unscrupulous doctors are making a quick buck by doing surrogacy for infertile couples who don't need it, only in order to maximise their revenue. We have to accept this bitter truth - that not all doctors are upright and ethical. If we refuse to do so, the government is justified in saying that doctors are living in a fool's paradise by pretending that all doctors are upright and honest; and that all surrogates are well-informed and capable of deciding for themselves.
As my colleague, Dr Ashwin Mohan thoughtfully commented,
1. Commercial surrogacy is not bad, commercialization of surrogacy is.
2. Exploitative practices need to be penalised, not ethical practices.
3.Regulation is important, prohibition fails.
4. A rights based approach is best way to go with adequate checks and balances.
5. Criminalisation will make patients seek options 'underground'
6. Every case of surrogacy can be referred to a competent board since it is a planned procedure and approvals sought in cases of doubt. Sadly, we believe in reflex action, not reflective action
We should work together to achieve a win-win, and I think we can do this if doctors and the government trust and respect each other, and not take a confrontational approach.