A Comprehensive Analysis on Reproductive Health and Surrogacy in India: A Study on the Law, Policy, and Practice

Introduction

“For Robert Brown, all love begins and ends with motherhood, by which a woman plays the God. Glorious it is like the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood. It is no longer one indivisible instinct of a mother to bear and bring up a child. With the advancement of reproductive science, now, on occasions, the bearer of the seed is a mere vessel, a nursery to sprout, and the sapling is soon transported to some other soil to grow on. Now, it is law’s turn to appreciate the dichotomy of divine duty, the split motherhood.”1

The word “surrogate” has its origin in the Latin term “surrogates” meaning a substitute, a person appointed to act in place of another. “It is the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby to give it to someone who cannot have children.”2 Nature has bestowed the capacity to procreate a life within women and every woman cherishes the experience of motherhood. But, growing cases of infertility and technological advances have led the world to turn its eyes on surrogacy. The conventional is to go for adoption and the unconventional is Assisted Reproductive Technology (ART) in which pregnancy is caused by artificial or partially artificial means.

Earliest evidence of surrogacy

In 1976, the first legal surrogacy agreement in the history of surrogacy was brokered by lawyer Noel Keane3. From then, there were a lot of historical snapshots of the rise in the practice of surrogacy. Surrogacy is not a new wonder it has existed for many years. It took momentum once artificial insemination and assisted reproductive technology were developed.

In 1986, the famous case of Baby M. was the first evidence of surrogacy. The woman who was the surrogate and also the biological mother of the child decided she wanted to keep the child, despite prior discussions and contracts. The case is illuminating even today because it explains the nature and contractual arrangement between the intended parents and a surrogate. It also discusses certain risks that can arise in the wake of such relations. However, the Court declared such contracts are against public policy and hence are void and unenforceable. The Court in the end gave the custody of the child to the intended parents in the best interests of the child.

In recent times, technology has radical advances to enable women to carry a child not biologically related to them. The most commonly used ART procedures are intrauterine insemination (IUI), tubal embryo transfer (TET), in vitro fertilisation (IVF), zygote intrafallopian transfer (ZIFT), gamete intrafallopian transfer (GIFT), and gestational surrogacy4.

Surrogacy in India has its origin in history and evidence of being a century-old method. In 1978, surrogacy in India became successful with the birth of the world’s second and India’s first in vitro fertilisation (IVF) baby Kanupriya alias Durga in Kolkata. Commercial surrogacy was then legalised in India in 2002. This decision was taken to encourage medical tourism in India.

At last, one can say surrogacy is the union of science, society, services, and person that makes it a reality5. While some advocates that surrogacy leads to a win-win situation for both the infertile couple and the surrogate mother and say “The barren gets a baby, the broken gets a bonus”, others debate on various moral and ethical aspects.

However, within that broad definition, there are many different ways to define surrogacy, but considering the prevailing practices in India there are two types of surrogacy medically practised6:

(i) Traditional/natural/partial surrogacy: The first type of surrogacy arrangement is “traditional surrogacy” or “complete surrogacy” in which the eggs of the surrogate mother are used in the conception of the child. In this process, the child is genetically related to the surrogate and hence the surrogate is practically considered as the biological mother. The process through which the baby is conceived is called “artificial insemination”.7

(ii) Gestational surrogacy: In this, the wife is fertile but incapable of carrying a growing foetus; the child is conceived by “in vitro fertilisation” (IVF)8 using the wife’s eggs and her husband’s sperm, the obtained embryo is embedded in the surrogate mother’s uterus.

Apart from this, there are different arrangements through which surrogacy is being practised9:

(i) Altruistic surrogacy: Where the surrogate mother receives no financial rewards for her pregnancy or the relinquishment of the child to the genetic parents except necessary medical expenses10. Altruistic surrogacy can be titled as “women helping women”, where the surrogate agrees to help the couple by giving birth to the child without any consideration.11

(ii) Commercial surrogacy: Where the surrogate mother is paid over and above the necessary medical expenses or when surrogate mother receives a financial reward for her pregnancy or the relinquishment of the child (besides medical and other reasonable expenses), usually according to a pre-decided liquidated agreement, it is termed as “commercial surrogacy”.12

Reproductive tourism

Reproductive tourism describes any travel to seek commercially provided assisted reproductive technologies (ARTs), which can include in vitro fertilisation, pre-implantation genetic diagnosis, gamete procurement, or a host of other services.13 Over the last two decades, India has become a major global destination for “reproductive tourism”, according to a study backed by the United Nations in July 2012, it is estimated that surrogacy may be worth approximately $400 million annually, generated from the country’s approximately 3000 speciality clinics in India.14

India was known as the capital of “commercial surrogacy” and fertility tourism in the world. Once upon a time, India was considered the most preferred “surrogacy destination” in the world. Commercial surrogacy was permitted in India from 2002 to 2016. Since commercial surrogacy is banned in most nations, many are flocking to India.15

The main customers of surrogacy tourism were infertile couples, heterosexual couples, homosexuals, incapacitated and handicapped people, and even elderly couples. Surrogacy tourism was a very lucrative business for Indian medical tourism with a huge potential to generate foreign exchange earnings for the country.16

Ethical and moral issues around surrogacy

Although surrogacy seems to be helpful for all parties involved, certain delicate issues need to be addressed through rigorously framed laws to protect the rights of the intended parents and the surrogate. Some argue that in commercial surrogacy buying and selling of the womb of the women’s body is an immoral act. Poor, indigent Indian women would become the source for bearing the baby, get and exploited by the rich and powerful infertile couples.

The emotional bond between the biological mother and the child is extremely strong and that surrogate motherhood is unnatural and immoral because it violently “breaks” that bond17. The biological child is often being neglected and that we do not focus on the possible trauma of the mother giving her child away to the adopters18. Ethical consideration regarding the rights of the child to know the mother (surrogate); emotional aspects of the surrogate mother influence the surrogate child’s behaviour; social isolation; social outcasting and many other societal and religious-oriented strings are attached to this.

“If we look into the difficulties faced by a surrogate, the conditions are worse and unethical. The illiterate poor women of rural background are often induced in such deals by their partner or middlemen for earning easy money. These women have no right or to decide on their own body and life”.19

It is sardonic that people are taking part in the practice of surrogacy when nearly 12 million Indian children are orphans. Adoption of a child in India is a complicated and lengthy procedure for those childless couples who want to give a home to these children20.

A conspectus on various Indian legislations on surrogacy

Commercial surrogacy has been made legal in India since 2002. The Indian Council of Medical Research expected the growth of the surrogacy industry up to 6 billion dollars by 201821. In the Indian medical industry, surrogacy has been a thriving part, many couples from other countries visit for this purpose as laws are not restrictive, relatively lower costs, and availability of surrogate mothers. But, the Ministry of Health and Family Welfare introduced the Surrogacy (Regulation) Bill, 2020 seeking to prohibit commercial surrogacy from allowing altruistic surrogacy in India.

In 2005, the Indian Council of Medical Research Guidelines regulates the practice of surrogacy in the absence of any codified law22. The financially weaker and cheap reproductive labour made low-income Indian women are the ultimate sellers of their reproductive potentialities. To curb exploitation against “mother workers”23, the Indian Council of Medical Research laid down ethical guidelines in 2005 which emphasised contractual agreements between commissioning parents, fertility clinics, and the surrogate mother, as well as the notions of privacy, consent, and support.24

The Supreme Court in 2008, in Manji Yamada v. Union of India25, formally recognised commercial surrogacy and pointed out the need for the law governing surrogacy in India, as the money-making racket is being perpetuated in various parts of India. This task was given to the National Commission for the Protection of Child Rights.

In 2009, the 288th Report of the Law Commission of India declared it to have become a Rs 25,000 crore industry26 has recommended prohibiting commercial surrogacy and allowing altruistic surrogacy citing concerns over the prevalent use of surrogacy by foreigners and lack of proper legal framework resulting in the ill-treatment of the surrogate mother who mostly is compelled to become a surrogate due to poverty and lack of education.

Later in 2012, another incident triggered this issue, with an Australian couple abandoning one of their twins born to a surrogate because one of them was born with Down syndrome27. In 2014, this issue again came into the limelight as a 23-year-old died after an egg donation procedure at an IVF clinic. Looking at these horrifying incidents, in 2015, Advocate Jayashree Wad filed a public interest litigation (PIL) in the Supreme Court seeking prohibition of commercial surrogacy. Her PIL shaped public opinion and created pressure on the Government to pass legislation.

In 2016, the Surrogacy (Regulation) Bill, 201628 was introduced in Parliament. The Bill provided the establishment of national and State-level Surrogacy Boards. Further, only heterosexual Indian couples, legally married for five years, could be benefited from surrogacy, with the pre-condition of proven fertility certified by a recognised medical doctor. It also creates a ban on foreigners, live-in partners, unmarried couples, overseas Indians, single parents, live-in partners, and gay couples from commissioning surrogacy29. The Surrogacy (Regulation) Bill, 2016 was introduced but lapsed in the Rajya Sabha and was sent to the Parliamentary Standing Committee. In 2017, the Committee in its 102nd Report opined that prohibiting commercial surrogacy is unacceptable and is based more on moralistic assumptions than on any scientific criteria.

In 2019, the Government has called the Bill “need of the hour,” citing an estimate of 2000 to 3000 unregulated clinics operating in the country30. During the Winter Session 2019, the Rajya Sabha referred the Surrogacy (Regulation) Bill, 201931 to a Select Committee headed by Bhupender Yadav.

Draft Surrogacy Bill, 2019

After a two-decade-long legal journey, this Bill was finally passed in the Lok Sabha to regulate altruistic surrogacy and prohibited commercial surrogacy. Altruistic surrogacy is allowed in the Bill which involves no monetary compensation to the surrogate mothers other than the insurance coverage and medical expenses during the pregnancy. Surrogacy is permitted when intending couples suffer from proven infertility and not possessing any condition or disease specified through regulations. Hence, a “certificate of essentiality” and a “certificate of eligibility” is required by the appropriate authority.

Undertaking or advertising commercial surrogacy; abandoning, exploiting, or disowning a surrogate child; exploiting the surrogate mother, and selling or importing human embryos or gametes for surrogacy are penal offences with imprisonment up to 10 years and a fine of up to Rs 10 lakh . Further, the written consent of the surrogate mother and the authorisation of the appropriate authority is required for the abortion of the surrogate child. An option to withdraw from surrogacy is given to the surrogate mother before the embryo is implanted in her womb and she can be a surrogate once in her lifetime.

The Surrogacy (Regulation) Bill, 2020

The latest Bill incorporated with all the recommendations of the Select Committee with the Union Cabinet’s approval of 15 major changes suggested by the 23-member Committee, was introduced on 26-2-2020, in the Lok Sabha by the Ministry of Health and Family Welfare.

Speaking on the Bill, Dr Harsh Vardhan said[42]:

“The Bill is aimed at ending the exploitation of women who are lending their womb for surrogacy and protecting the rights of children born through this. The Bill will also look after the interests of the couple that opts for surrogacy, ensuring that laws are protecting them against exploitation by clinics that are carrying this out as a business.”

Provisions of the Bill[43]

[Note: Words and figures italicised indicate the amendments suggested by the Select Committee.]

 Chapter I (Section 2)

Section 2 of the Bill is the definition clause, terms such as:

Altruistic surrogacy” [Section 2(b)]: The surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage of the surrogate mother, are given to her dependents or the surrogate or her representative.

Commercial surrogacy” [Section 2(f)]: Commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of a human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by giving  the payment, benefit,  reward, fees, remuneration or any kind of monetary incentive  to the surrogate mother or her representative or her dependants, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother;

 Intending woman” [Section 2(s)]An Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy;

Chapter II (Section 3) deals with “parentage and abortion of surrogate child” in which a child born by surrogacy procedure will be considered to be the biological child of the intending couple or intending woman. It requires the written consent of the surrogate mother and the authorisation of the appropriate authority for the abortion of the surrogate child. This authorisation must be according to the Medical Termination of Pregnancy Act, 1971[44]. Further, before the embryo is implanted in her womb, the surrogate mother will have an option to withdraw from the surrogacy[45].

Chapter III (Sections 4-10)

The first part deals (Section 4) with the five purposes for which surrogacy is permitted:

  1. when an intending couple or intending women of India has a medical indication for gestational surrogacy;
  2. when it is only for altruistic surrogacy purposes;
  3. when it is not for commercial purposes or commercialisation of surrogacy or surrogacy procedures;
  4. when it is not for producing children for sale, prostitution, or any other form of exploitation; and
  5. any other condition or disease as may be specified by regulations made by the Board.

The second part deals with eligibility criteria for intending couples who need to obtain two certificates issued by the appropriate authority which are:

  1. Certificate of essentiality. [Section 4(iii)(a)]
  2. Certificate of eligibility. [Section 4(iii)(b)]

An eligibility certificate for intending couple is given separately by the authority concerned on fulfilling the following conditions. [Section 4(iii)(c)]

A certificate of essentiality shall be issued when the following conditions are fulfilled[46]:

(i) A certificate of a medical indication in favour of either or both members of the intending couple or intending woman for gestational surrogacy from a District Medical Board.

(ii) An order of parentage and custody of the surrogate child passed by a Magistrate’s court.

(iii) Insurance coverage for 36 months from 16 months provided in the earlier version which covers postpartum delivery complications for the surrogate.

To acquire a certificate of eligibility from the authority concerned, the surrogate mother should be:

(i) no woman, other than an ever-married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a  help in surrogacy by donating her egg or oocyte or otherwise or a surrogate mother;

(ii) a willing woman shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act: the intending woman shall approach the appropriate authority with a willing woman who agrees to act as a surrogate mother; no woman shall act as a surrogate mother by providing her own gametes;

(iii) no woman shall act as a surrogate mother more than once in her lifetime;

(iv) the surrogate mother cannot provide her gametes for surrogacy; and

(v) a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner.

Section 8 deals with the rights of the surrogate child: A child born out of surrogacy procedure, shall be deemed to be a biological child of the intending couple or intending woman and the said child shall be entitled to all the rights and privileges available to a natural child under any law for time being in force.

Chapter IV (Sections 11-14)

“Registration of surrogacy clinics” by the authority concerned to undertake surrogacy or the procedure related within 60 days from the date of appointment of the authority concerned.

“Certificate of Registration” the validity of which is three years and can be renewed. “Cancellation or suspension of registration” by the authority concerned if any infringement of the provisions of the Act.

“Appeals” can be made by surrogacy clinics or intending women or intending couple against orders such as rejection or cancellation of certificates, registrations, and applications passed by the appropriate authority to the State and Central Government.

Chapter V (Sections 15-32)

National and State Surrogacy Board consisting of various members from Parliament, State Legislative Assemblies, Executives, and ten eminent members appointed by State and the Central Government. Boards must guide the Central Government on policy formulation relating to surrogacy, monitoring and reviewing the implementations of the Act or rules and regulations, laying down the code of conduct of the surrogacy clinics, supervise the operation of the State Surrogacy Board, and the working of various bodies initiated under the Act[47].

Chapter VI (Sections 33-35)

This chapter deals with the functioning of “appropriate authority”. To put a firm regulatory structure in place, the Bill authorises the significant authority to issue, suspend, or terminate the registration of surrogacy clinics; advocate the explicit standards; examine and take actions in case of any deflections from the Bill, and finally to take into consideration the change in technological and social conditions[48].

Chapter VII (Sections 36-43)

Penalises any person up to 10 years’ imprisonment and fine up to 10 lakh rupees for offences like advertising or undertaking commercial surrogacy in any manner, disowning or exploiting the surrogate child or surrogate mother, selling or importing human embryo or gametes for surrogacy purpose, and conducting sex selection in any form for surrogacy.

Punishment for not following altruistic surrogacy shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees for the first offence and for any subsequent offence with imprisonment which may extend to 10 years and with fine which may extend to 10 lakh rupees.

Commercial surrogacy and way forward

The advancement and growth of IVF clinics across India has made it a spot for reproductive tourism[49]. Advocates of modern commercial surrogacy may consider this business that can be professionally marketed in the capitalistic economy. But the reality is somewhat different. Over the past half-century, the world has witnessed huge controversy on legal, moral, and ethical issues surrounding commercial surrogacy.

Nevertheless, the much-debated topic in India should be about the laissez faire approach to the surrogacy industry along with the legal vacuum, which paves the way for human rights abuse, citizenship issues, health policy, and many more.

The need of the hour is to analyse commercialisation given the Draft Surrogacy Bill at a time when surrogacy as a multi-crore industry is in the making. Further, women’s needs and safeguarding their interests is also the bedrock in this transformative constitutional era, (as most of the debate is centred on the morality of the process.) Hence, the question of allowing commercial surrogacy should be ventilated at lengths.

Some advocate that women are finally recognising their capabilities which can be economically tapped. What was considered as a societal duty i.e. bearing a child, can now be used as a tool to economically empower women. When sperm donors get paid, why should not women have the same liberty to cash this is another question?[50]

On the other side, many researchers had found that commercial surrogacy is financially, emotionally, ethically, and also morally exploitative. Some even compared it to prostitution as surrogates are used for reproductive labour by taking advantage of their sexuality.

In case of recurrent failure, the women have to put up with clinical processes relating to the transfer of embryos, miscarriages, and other health conditions involved in the process. High dosage of medication, multiple embryo transfers, hormone treatment, and a high risk of sexually transmitted disease. Other aspects of surrogacy, like insufficient compensation, risk of trafficking, not being well informed about the contract, choice restrictions, post-pregnancy issues, mental health, and many more. However, because most of these shortcomings can be regulated, to justify a ban, the harms to surrogates must be considered concerning their living conditions previously.

Constitutionality

In Gobind v. State of M.P.,[51] the Court stated that “nothing would advance women’s welfare more than respecting their reproductive autonomy. Such autonomy must encompass and protect the personal intimacies of marriage, motherhood, procreation, and child-rearing”. The Supreme Court in Suchita Srivastava v. Chandigarh Admn.[52] observed that a woman’s right to make reproductive choices has been interpreted as a dimension of “personal liberty” as understood under Article 21 of the Constitution of India.

In Devika Biswas v. Union of India[53], the Supreme Court held that the right to reproduction is an important component of the “right to life” under Article 21. Reproductive rights of a woman include the right to carry a baby, give birth, and raise children. Rights to privacy, dignity, and integrity are also included.

Hence, the above judgments indicate that a woman’s right to make a reproductive choice is a part of her liberty under Article 21. A blanket ban if applied to commercial surrogacy can deprive the right to parenthood as not all close relatives can help a couple with surrogacy.

In Consumer Education & Research Centre v. Union of India[54], the Supreme Court stated that the expression “life” under Article 21 of the Constitution has a much wider meaning and includes the right to livelihood. This was also reiterated in Olga Tellis v. Bombay Municipal Corpn.[55]. Hence, violation of the right to livelihood is another ground under Article 21. Violation of Article 19(6)[56] can also be ground, as it gives freedom to practise or carries on any occupation, trade, or business. In Saghir Ahmad v. State of U.P.[57], the expression “freedom” was interpreted as “every citizen has a right to choose his own or take up any trade or calling”.

In B.K. Parthasarathi v. Govt. of A.P.[58], wherein the Andhra Pradesh High Court held that State’s interference on procreation amounts to a direct encroachment on one’s “right to privacy”. The stance of privacy was fortified in Aadhaar judgment[59]. Hence, “woman alone should have the right to control her body, fertility and motherhood choices”[60]. As act mandates certificate of essentiality and eligibility to be taken from appropriate authorities which violates the right to privacy.

Furthermore, the Supreme Court recognised transgenders as third genders in the leading case of National Legal Services Authority v. Union of India[61].  But the Bill is silent on providing equal rights to third genders. The grounds mentioned in the Bill are very narrow and disentitles same-sex couples and transgenders from commissioning surrogacy. Hence, in this transformative constitutional era that is marching toward the ideals of liberty and equality, these loopholes would be constitutional hurdles.

Way forward

The fertility of Indian women who are inclined towards surrogacy has become a global commodity and to stand the global economic meltdown, reproductive tourism which generates foreign exchange is the reason for the delay in enacting legislation to govern surrogacy. But this profit motive to save the industry has failed to address an issue that requires a deeper concern. Rather than banning it, placing effective regulations can prevent further exploitation and the emergence of illegal markets. It is high time to wake up from this slumber and place an alternative route consisting of stringent regulation and enforcement policies.

The Government should enact laws that are incoherent with fundamental rights and policies which cater to the feministic ethos. To justify a blanket ban, the living conditions of surrogates must be considered concerning the problems they might face. In the “altruistic model”, a surrogate mother has to put up with the physical and emotional tolls only out of “compassion” which is not practical. Thus, the “compensatory surrogacy model” where losses are taken care of by the intending parents in terms of health, wages, sufferings, and death, etc. shall be explored.

Conclusion

Surrogacy is a complicated tangle of social, ethical, legal, and technological issues. The matter of surrogacy is not just having legal implication to be pondered into, but the society at large needs to look into it as a social issue and deal with it in such a way that our ethical values are not lost and at the same time, we also take the advantage of the growing technology. Governments must take respective stakeholder’s consideration, which is essential in making such laws. It must account personal experiences of surrogates to develop best practices in surrogacy contracts with the least ethical violations.

States must understand that being a surrogate mother is an actual legitimate profession for some women and they indulge in it willingly[62]. Surrogacy agents and surrogacy clinics should be regulated closely to prevent any exploitation of surrogate mothers and intended parents[63]. However, the hopes remain open as it has not still enacted and thus there is still is a chance open for it to become more conducive to the needs of the society and of the individuals consisting of it[64]. Hence, Parliament should utilise this opportunity in fulfilling its obligations and fill the legal lacuna and shortcomings and make a comprehensive law devoid of loopholes and illegalities which can pass the test of judicial scrutiny.


Assistant Professor and Principal Investigator of a major project allotted under RUSA-2.0 on “Surrogacy Laws”,  University College of Law, Osmania University, Hyderabad. Author can be reached at  radhika_yadav@yahoo.com.

†† IVth year student and intern under RUSA-2.0 major project, University College of Law, Osmania University, Hyderabad.

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[44] Medical Termination of Pregnancy Act, 1971.

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[51] (1975) 2 SCC 148.

[52] (2009) 9 SCC 1.

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[54] (1995) 3 SCC 42.

[55] (1985) 3 SCC 545.

[56] Article 19(6) of Constitution.

[57] (1955) 1 SCR 707.

[58] 1999 SCC OnLine AP 514.

[59] K.S. Puttaswamy  v. Union of India, (2017) 10 SCC 1.

[60] Arijeet Ghosh and Nitika Khaitan, A Womb of One’s Own: Privacy and Reproductive Rights, Epw Engage,

<https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights> (last accessed on 8-5-2021).

[61] (2014) 5 SCC 438.

[62] Surekha Nelavala, Surrogate Mothers in India — Are They Empowered or Exploited? A Discussion From a Feminist Perspective, Journal of Lutheran Ethics, <https://www.elca.org/JLE/Articles/1097?_ga=2.203985433.827067841. 1576305165-952038808.1576305165#_edn2> (last accessed on 5-5-2021).

[63] C. Srinidhi, Surrogacy: Exploitation vs Empowerment, A Feminist Perspective, Asia Law House (2020).

[64] Omkar Upadhyay and Sukriti Nigam, Contradictions of Reproductive Rights and Human Rights: Critical Analysis of Surrogacy in Light of Surrogacy (Regulation) Bill, 2019, Asia Law House (2020).

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