Netflix’s Mimi and Surrogacy: What does the law say?

One of the newer Netflix releases, Mimi, talks about an issue that has been discussed in India’s Parliament through the ages but never passed as a law yet – Surrogacy. The current proposed Bill defines it as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.

A booming industry since the early 2000s at present has no dedicated law that provides any regulations for this practice. There is also a lot of misconception on what it truly entails. Let’s walk through some instances from Mimi to understand how surrogacy has been working in India.

Is surrogacy legal in India?

Yes, it is. But only for Indian intending couples. Foreigners or even OCI card holders cannot avail the services of a surrogate for reproductive purposes.

While you may be confused on how Mimi could be a surrogate mother for an American couple, the movie is based in 2014, i.e. around a year before the 2015 notification of the Indian government where surrogacy was banned for foreign intending couples.

If there is no law, how is the practice regulated?

At present the practice is largely regulated through surrogate pregnancy contracts. The surrogacy clinics draw up this contract, the validity and enforceability of which is governed by the Indian Contract Act, 1872.

In the absence of a law, the Indian Council for Medical Research (ICMR) has issued Guidelines to be followed by clinics and medical professionals in all cases of assisted reproduction, including surrogacy.

Who can be a surrogate mother?

The ICMR Guidelines specifically provide who can be a surrogate mother:

• A woman under the age of 45 years, tested by the clinic and put on record that she satisfies all criteria to go through a full term pregnancy
• A relative, a known person or even an unknown person to the couple can be their surrogate mother. (In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate)
• A woman tested seronegative for HIV right before the embryo transfer. (The prospective surrogate mother must also declare that she will not use drugs intravenously and not undergo blood transfusion except for blood obtained from a certified blood bank.

It is important to know that as per the current guidelines, no woman may act as a surrogate more than thrice in her lifetime.

Are surrogate mothers paid for their services?

Yes, the surrogate mothers are compensated for their services, the amount for which is not regulated and differs from contract to contract. It covers all medical payments associated with pregnancy and compensation for the surrogate mother. ICMR Guidelines insist that financial exchange must be documented in such arrangements, mainly to secure the interests of both parties involved.

This form of agreement where the surrogates get paid for their services is referred to as ‘compensated or commercial surrogacy’.

There is a Bill pending in the parliament that seeks to ban commercial surrogacy by making it a criminal offence punishable with imprisonment and and allow only altruistic surrogacy under limited circumstances.

What can a surrogate mother do in case the intending couple refuses to honour the surrogate pregnancy contract?

Since the surrogate mother and the intending couple get into a binding contract for this service, any derogation from the agreed terms would be a violation of the contract. If the intending couple refuses to honour the contract and not take the child at the end of the term, legal action for this breach of contract can be taken against them.

While the movie Mimi portrays surrogacy and other reproductive rights of women in a negative light, it is true that the practice remains largely unregulated in India. The Guidelines that the ICMR issued are also only suggestive. But that is not to say that it has been an ‘evil’ practice.  The Surrogacy Regulation Bill, 2019 that will ban commercial surrogacy and provide other regulations for this practice has been passed in the Lok Sabha and is pending approval from the Rajya Sabha. There is also an Assisted Reproductive Technology (Regulation) Bill 2020 that has been introduced that would bring within its ambit other forms of reproductive technology process also. If passed, the proposed law will drastically change how reproductive technologies like surrogacy are handled in India.