"Shocked": Kerala High Court flags possible exploitation of vulnerable women for surrogacy, egg donation

The Kerala High Court recently flagged concerns about the possible exploitation of women from vulnerable sections of society in Assisted Reproductive Technology (ART) activities such as surrogacy and egg donation [ART Bank Rep by its Managing Director, Abdul Muthalif MA v. State Police Chief of Kerala].

A Division Bench of Justices Devan Ramachandran and MB Snehalatha said that it was prima facie shocked after coming across a case which appeared to involve a large-scale racket involving human exploitation in the name of ART.

"For want of better words, prima facie, we can only say that we are shocked by what we have seen in the factual matrix of this case... Innovation is always a key in medicine; and Assisted Reproductive Technology (ART) has been a global game changer. Unfortunately, ART has brought into its fold, because of its huge demand, various deleterious tendencies, particularly in the growing markets in low and middle income countries. We fear if this has percolated into our small State of Kerala also," the Court said.

The Court noted that it is women from the most vulnerable sections of society, often with little education or support, who are lured with the promise of money into providing ART services.

"There is a lot of power imbalance in the situation, with such ladies having absolutely nothing, or very less command, over the situation, into which they are being pushed into; and what is more dangerous is the lack of transparency, with unscrupulous elements being able to act under the radar of law, perhaps because the Statue itself is in its nascent stage. The human exploitation becomes exacerbated since there is always an emotional toll involved, extracting life resources from a human body; and what shows out is an abject breach of ethical standards and principles, shocking any human mind guided by even the faintest of humanism," the Court explained.

The Court added that even hopeful couples who are desperate to have children are also taken advantage of in such cases.

"It is well documented internationally, that there is also an exploitation of hope of the intending parents, which makes them even more vulnerable and ready to accept risks. On the other side of the spectrum are unsuspecting women – who are generally new mothers – lured in by the amounts offered; and this creates a complex web of deceit, with unscrupulous elements becoming middlemen, controlling the whole scenario," the Court said.

The Court was dealing with a habeas corpus petition filed by an organisation called ART Bank. The petitioner-organisation sought the release of several women who they claimed were being illegally detained by the State authorities at Santhi Bhavan, a shelter home run by the Kerala government.

The organisation claimed that the women had earlier come to them voluntarily to be egg donors.

However, the Santhi Bhavan's counsel and the State authorities countered that the women were the victims of human trafficking and were being exploited by ART Bank. They submitted that the women were brought to Kerala to be surrogate mothers or egg donors.

The State's Government Pleader informed the Court that an investigation is being conducted by the Health Department and the Police into the petitioner-organisation as well as across the State.

The Court said it was shocked that such exploitation is taking place in a State like Kerala, which boasts of high literacy.

The Court eventually adjourned the case till October 10, by when the authorities are expected to submit action taken reports.

"The Authorities concerned under the Health Department and the Police have their duty cut out, to ensure that such exploitations are effaced and not allowed to happen in future, guided by the acme constitutional imperatives and principles, which guide us on a constant basis," the Court said.

The Court also issued orders granting police protection to the women involved.

Advocate Gikku Jacob appeared for ART Bank.

Public Prosecutor Sunil Nath appeared for the State authorities.

Santhi Bhavan was represented by advocate Ferha Azeez, Sreerag Shylan, Devananda S, and Sandhya Raju.

[Read Order]