Surrogacy in India: Shedding its secrecy

How did surrogacy become popular in a country like India?

The answer to this is the advancements in the field of reproductive sciences, affordable price points for foreigners, huge number of poor women who are willing to rent their wombs and lack of legal scrutiny. All of these factors ensure the boom of commercial surrogacy in India, while the rest of the world continue to debate on the philosophical and political aspects related to the concept of surrogacy.

Birthing a market

Commercial surrogacy in India was initially a taboo. However, in Baby Manji’s case (2002) the Supreme Court of India held that commercial surrogacy was legal in India. Thereafter the concept picked up momentum and today India is a veritable Mecca for various couples from Israel, the US, Canada, the UK and Australia who seek to rent-a-womb to bear their children. India is among just a handful of countries – including Georgia, Russia, Thailand and Ukraine – and a few of the US states where women can be paid to carry another’s genetic child through a process of in vitro fertilisation (IVF) and embryo transfer. Reproductive tourism in India alone is “valued at more than $450 million a year” and was forecast by the Indian Council of Medical Research (ICMR) to be a $ 6 billion a year market in 2008. According to KPMG’s lifesciences wing, the fertility industry in India is today worth Rs 750 crores. Surrogacy, which forms roughly seven per cent of that, stands at around Rs 54 crores. As estimated by the Confederation of Indian Industry (CII) India generates around $2.3 billion a year from fertility tourism. CII also reveals that nearly 10,000 foreign couples visit India for reproductive services and nearly 30 per cent are either single or homosexual.

Well, as any other growing area, the surrogacy sector too has its own pros and cons.

Pros

The increasing numbers of couples seeking surrogacy in India and the success rates of children born out of surrogacy have served to further promote India’s already booming surrogacy industry. Though cosmopolitan cities such as Delhi and Mumbai attract the maximum foreign couples and celebrities, B-towns such as Anand, Surat, Jamnagar, Bhopal and Indore are also growing centres for surrogacy.

Dr Archana Dhawan Bajaj, Consultant Obstetrician, Gynaecologist, Fertility & IVF Expert, The Nurture Clinic speaks about how celebrities have become ambassadors of this concept. She informs that Bollywood stars, Aamir Khan and ,ore recently, Shahrukh Khan, opting for surrogacy have influenced the public so much that a large number of couples have come forward for surrogacy, breaking the orthodox mindset of Indian society. She opines, “Since the news of Shahrukh and Gauri Khan opting for surrogacy came to light, a number of couples have got influenced with the decision of the celebrity couple. I have got about 15-17 queries about IVF surrogacy. Celebrities are role models for public and their every action has a great impact on public. Aamir Khan, Satish Kaushik and now Shahrukh Khan’s attempts have helped to shed the social stigma related to surrogacy. Therefore, Indian couples’ perception has changed about surrogacy.”

Cons

However, as commercial surrogacy in India is slowing overcoming social ostracism, a growing concern: will this lead to a nightmarish situation of housing the world’s biggest baby farming industry?

Currently, India does not have a legislation governing surrogacy; only guidelines laid down by the ICMR. It’s the surrogacy agreement that governs the contractual relation between the parties. Therefore, will the lack of a proper law that binds this practice lead to exploitation ?

The study, ‘Surrogacy Motherhood: Ethical or Commercial?,’ conducted by Centre for Social Research and supported by the Ministry of Women and Child Development in the year 2011-12, had revealed that the women who agree to be surrogate mothers get only one or two per cent of the total money a couple spends to have a child. The rest of the money is pocketed by owners of fertility clinics, doctors, nursing homes and middlemen. There has been several cases reported wherein, the surrogate mother has been ill treated or where her health has been neglected.

“Reproduction is a very personal and private matter – individuals should be free to decide for themselves what they want to do without the government interfering with their decisions.” Dr Aniruddha Malpani Managing Director, Malpani Infertility Clinic

In line with these cases, many IVF clinics have been defamed for exploitation and misconduct. Dr Aniruddha Malpani, MD, Malpani Infertility Clinic reveals, “While surrogacy is a great treatment option for some women (for example, those with Mullerian agenesis), the sad truth is that it is being overused and misused by many IVF clinics for financial reasons. For example, a lot of IVF clinics promote surrogacy as ‘treatment’ for older women who have failed multiple IVF cycles because of poor embryo quality. For these women, surrogacy will not help at all, because their uterus is normal. However, rather than counselling them and providing truthful information, doctors are happy to offer surrogacy as a solution to them, because it is so financially remunerative.”

Exploitation of surrogate mothers is one part, what about the rights of children born out of surrogacy? And what about the legal issues that these commissioning parents face when they want to take their children back to their native lands?

“Since we do not have a law in place, only recommendations, every once in a while we encounter situations that are alarming or reach a roadblock.” Dr Firuza Parikh Director, Department of Assisted Reproduction and Genetics, Jaslok Hospital

Citing examples of some challenges faced by surrogate mothers and commissioning parents, Dr Firuza Parikh, Director, Department of Assisted Reproduction and Genetics, Jaslok Hospital and Research Centre mentions, “The challenges are plenty and can be worrisome for both the commissioning patents and the child. Many babies born out of cross-border surrogacy have been trapped in legal tangles between the home country and India. A Norwegian woman who had twins through an Indian surrogate in 2009 was stranded for over two years as Norway refused to accept her as the biological mother. Many countries like France, Germany, Italy and Norway do not recognise surrogacy.”

“Singles/ gays and unmarried couples who cycled in the past have embryos and other genetic material trapped in India as the gov won’t allow them to use it or remove it outside India.” Dr Rita Bakshi Chairperson, International Fertility Centre

Giving some more examples in this context, Dr Rita Bakshi, Chairperson-International Fertility Centre chips in, “There have been a few recent cases in which surrogate babies have been caught in legal limbo. Even when the babies are allowed to travel back to the parents’ country of origin, it is sometimes the beginning of other complications. In 2010, a French gay man who had twins through an Indian surrogate was allowed to travel back to France, where surrogacy is illegal. He is still engaged in a court battle with the government that took away the twins and placed them in foster care.”

Another shocking news was of a convicted Israeli paedophile gaining custody of a four-year-old Indian girl through an agreement with a surrogate mother in India. Israel National Council for the Child (NCC), an NGO for children’s rights recently brought this story to light after they found out that the man has legally adopted the child through an agreement with the surrogate Indian mother and under current legislation, the Israeli authorities do not have the power to remove the girl away from him. According to an independent probe conducted by NCC, the man served 15 months in jail for sexually abusing five young children while they were under his supervision, some repeatedly, and is recognised as a paedophile by the authorities.

These incidents surely raises the question that are couples seeking surrogacy in India being scrutinised for medical, socio-economic/ family backgrounds?

These are just few instances of what lack of regulations can do to a technique that was developed with the intention of enabling childless couples to have children and helping out poor women who can uplift their lives by renting out their wombs.

Steps underway for betterment

In July 2013, at the 2nd International Family Law and Practice Conference 2013 held in the London Metropolitan University, Chandigarh-based Supreme Court advocates Anil Malhotra and Ranjit Malhotra presented a joint paper on ‘New Medical Visa Laws to Regulate Surrogacy’ and pointed out that the recent instances of surrogate children from Germany, Japan and Israel born in India and leaving upon court intervention is an alarm to the legislators to enact a strict surrogacy monitoring law in India.

Moreover, the recent furore about leading Bollywood actor Shahrukh Khan allegedly having conducted a gender test before his surrogate baby was born has somehow worked as a wake up call for legislators to take the necessary steps for tightening the rules regarding surrogacy.

As a result, the Government of India is all set to bring the thriving surrogacy sector under significant regulatory developments like the Artificial Reproductive Technology (ART) Bill which will be introduced in the Cabinet during the forthcoming winter session. This move has created a lot of confusion within the industry.

Contradictory views

While most of the industry experts are of the opinion that bringing in a surrogacy law is a must, there some opposing factions as well. Speaking about the ART Bill and the need for a surrogacy law Dr Bakshi feels, “The Bill describes the procedure for accreditation and supervision of assisted reproductive technology clinics and banks implying that such services need to be ethical. A law will also ensure that medical, social and legal rights of all concerned are protected with maximum benefit to infertile couples or individuals within the recognised framework of ethics and good medical practices. The Bill will also ensure the establishment of a national advisory board which will maintain a national registry of ART clinics and banks, state boards and registration authorities and fix their responsibilities and duties. It will prescribe rights and duties of patients, donors, surrogates and children as well as prescribe the procedure for registration of complaints. It also seeks to regulate research on embryos, gametes or other human reproductive material and will regulate sourcing, handling, record-keeping for gametes, embryos and surrogate mother.”

Adding to this, Dr Bajaj states, “The main motivation of bringing the ART Bill is to regulate the assisted reproductive services. It would help in eradicating the unethical practices in India. Right now the practices of ART are being misused by unmarried or gay foreigner couples. They hire Indian surrogates to meet their desire of bearing a child. But as such couples don’t get social acceptance neither do their child. The psyche of such a child gets disturbed due to social denial. Instances of child trafficking are also increasing due to malpractices of surrogacy. The proposed bill is expected to put an end to such practices.”

Dr Manoj Chellani, IV Expert, Ayush ICSI Test Tube Baby Center, Raipur, Chhattisgarh, feels that bringing in a law will organise the sector. He says, “ART clinics will be more organised, it will help to maintain standards and it will prevent gay couples and unmarried couples from abroad seeking surrogacy in India. Surrogacy system will altogether be redefined with the help of this law.”

Under the current draft, all fertility clinics must be registered and monitored by a regulatory authority. Surrogate mothers must be between 21 and 35 years old, they will be provided with insurance and notarised contracts must be signed between the women and the commissioning parents. The mandate also says that foreigners have to be married for at least two years, cannot be in a live-in relationships and surrogacy cannot be offered to same sex couples (for more details on the draft refer to Table 1).

Table 1: The (Draft) Assisted Reproductive Technologies (Regulation) Bill & Rules -2010 Surrogacy: Main provisions Both the couple or individual seeking surrogacy through the use of assisted reproductive technology, and the surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable. All expenses, including those related to insurance if available, of the surrogate related to a pregnancy achieved in furtherance of assisted reproductive technology shall, during the period of pregnancy and after delivery as per medical advice, and till the child is ready to be delivered as per medical advice, to the biological parent or parents, shall be borne by the couple or individual seeking surrogacy. Notwithstanding anything contained in sub-section (2) of this section and subject to the surrogacy agreement, the surrogate mother may also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate. A surrogate mother shall relinquish all parental rights over the child. No woman less than twenty one years of age and over thirty five years of age shall be eligible to act as a surrogate mother under this Act. Provided that no woman shall act as a surrogate for more than five successful live births in her life, including her own children. Any woman seeking or agreeing to act as a surrogate mother shall be medically tested for such diseases, sexually transmitted or otherwise, as may be prescribed, and all other communicable diseases which may endanger the health of the child, and must declare in writing that she has not received a blood transfusion or a blood product in the last six months. Individuals or couples may obtain the service of a surrogate through an ART bank, which may advertise to seek surrogacy provided that no such advertisement shall contain any details relating to the caste, ethnic identity or descent of any of the parties involved in such surrogacy. No assisted reproductive technology clinic shall advertise to seek surrogacy for its clients. A surrogate mother shall, in respect of all medical treatments or procedures in relation to the concerned child, register at the hospital or such medical facility in her own name, clearly declare herself to be a surrogate mother, and provide the name or names and addresses of the person or persons, as the case may be, for whom she is acting as a surrogate, along with a copy of the certificate mentioned in clause 17 below. If the first embryo transfer has failed in a surrogate mother, she may, if she wishes, decide to accept on mutually agreed financial terms, at most two more successful embryo transfers for the same couple that had engaged her services in the first instance. No surrogate mother shall undergo embryo transfer more than three times for the same couple. The birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of individual / individuals who commissioned the surrogacy, as parents. The person or persons who have availed of the services of a surrogate mother shall be legally bound to accept the custody of the child / children irrespective of any abnormality that the child / children may have, and the refusal to do so shall constitute an offence under this Act. Subject to the provisions of this Act, all information about the surrogate shall be kept confidential and information about the surrogacy shall not be disclosed to anyone other than the central database of the Department of Health Research, except by an order of a court of competent jurisdiction. A surrogate mother shall not act as an oocyte donor for the couple or individual, as the case may be, seeking surrogacy. No assisted reproductive technology clinic shall provide information on or about surrogate mothers or potential surrogate mothers to any person. Any assisted reproductive technology clinic acting in contravention of sub-section 14 of this section shall be deemed to have committed an offence under this Act. In the event that the woman intending to be a surrogate is married, the consent of her spouse shall be required before she may act as such surrogate. A surrogate mother shall be given a certificate by the person or persons who have availed of her services, stating unambiguously that she has acted as a surrogate for them. A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple/ individual. 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 foreigner or foreign couple not resident in India, or a non-resident Indian individual or couple, seeking surrogacy in India shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after the pregnancy as per clause 34.2, till the child / children are delivered to the foreigner or foreign couple or the local guardian. Further, the party seeking the surrogacy must ensure and establish to the assisted reproductive technology clinic through proper documentation (a letter from either the embassy of the Country in India or from the foreign ministry of the Country, clearly and unambiguously stating that s the country permits surrogacy, and s the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple/individual) that the party would be able to take the child / children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be. If the foreign party seeking surrogacy fails to take delivery of the child born to the surrogate mother commissioned by the foreign party, the local guardian shall be legally obliged to take delivery of the child and be free to hand the child over to an adoption agency, if the commissioned party or their legal representative fails to claim the child within one months of the birth of the child. During the transition period, the local guardian shall be responsible for the well-being of the child. In case of adoption or the legal guardian having to bring up the child, the child will be given Indian citizenship. A couple or an individual shall not have the service of more than one surrogate at any given time. A couple shall not have simultaneous transfer of embryos in the woman and in a surrogate. Only Indian citizens shall have a right to act as a surrogate, and no ART bank/ART clinics shall receive or send an Indian for surrogacy abroad. Any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act that would harm the foetus during pregnancy and the child after birth, until the time the child is handed over to the designated person(s). The commissioning parent(s) shall ensure that the surrogate mother and the child she deliver are appropriately insured until the time the child is handed over to the commissioning parent(s) or any other person as per the agreement and till the surrogate mother is free of all health complications arising out of surrogacy.

Explaining the reason behind this, Dr Parikh goes on, “The rationale behind this is to ensure that the child conceived from such an arrangement is protected, brought up in a stable environment and is not abandoned later on in life. One has to be very careful of this interpretation because it would be socially contrary to consider such relationships to be unstable.”

However, certain propositions made by the Directorate General of Health Services (DGHS) such as restricting certain foreign couples, same sex couples and single parents for seeking surrogacy in India has perturbed some industry experts. They feel that these propositions are irrational and could hamper the growth of the surrogacy sector in India.

“India has done much to promote itself as a professional, safe and proficient destination for people who have infertility issues and want to have a family. We have made having a family possible for many who would previously never be able to access this type of quality medical care and treatment. Through our work we have created a demand for this service and hope for many infertile people across the world. Clearly other nations are keen to benefit from our work as the new demand and competition is fierce. India is the first choice for many, but if we are not available they will turn to other countries for treatment,” expresses Dr Shivani Sachdev Gour, Gynaecologist & IVF Specialist, Director, SCI Healthcare.

Dr Bakshi feels that this move can have a bad impact on the IVF industry. She says, “If the Bill’s supporters have their way, and such a narrow definition of ‘couple’ is established for surrogacy eligibility, it could have a major impact not only on the fortunes of thousands of couples struggling to build a family, but possibly on the golden goose as well. India is the world’s first destination for surrogate pregnancies which is a key contributor to the popularity of India medical tourism; with the new legislation, everyone – from the medical facilities conducting the procedures and the surrogates themselves, to hotels and medical tourism agencies who ensure safe, comfortable itineraries for overseas patients – stand to see a decrease in business.”

Further she warns, “We know that singles/gays and unmarried couples who cycled in the past now have embryos and other genetic material trapped in India as the Indian government won’t allow them to use it or remove it outside India. This is the situation that those who currently qualify need to monitor carefully – because if a complete ban goes into place, those who start cycles now along with those who have frozen embryos, might find themselves in the same situation that the gays and singles find themselves in currently – without any rights to their genetic property (already paid for mind you) and unable to get the ear of the Indian government to act fairly on the disposition of their residual genetic material.”

Dr Malpani feels that restricting same-sex couples from seeking surrogacy as an option to bear children is unfair. He stresses upon his point saying, “After all, a single woman can easily have a baby without requiring permission from anyone. Is it fair to discriminate against the poor single man? Reproduction is a very personal and private matter – individuals should be free to decide for themselves what they want to do without the government interfering with their decisions.”

Dr Parikh looks at the present scenario in a different light. She says, “Whenever a new technology is offered to the society its true impact is only appreciated after a few years. Many a time the technology cannot keep pace with the demands placed by society. Several lacunae in the use of this technology cause the legal wheels to start rolling. This is what has happened with surrogacy in India. Since we do not have a law in place but only recommendations every once in a while we encounter situations that are alarming or reach a roadblock. The ART Bill needs to be further strengthened so that it protects both the surrogate and the commissioning parents.”

The way forward

While the industry continues to debate on this subject, they also urge that a board comprising doctors, legal luminaries, ethicists, reputed country leaders, couples who have gone through surrogacy, social scientists and government representatives need to come together for formulating a national policy which would promote surrogacy in a practical and moral way. Moreover, they urge the media to disseminate the right information about surrogacy and the proposed law.

Lending a helping hand to the government in framing the policy, Sama, an NGO engaged in assisted reproductive technologies and commercial surrogacy, through research and advocacy, has put forward some recommendations to the Planning Commission. (See Table 2). The organisation was invited by the Planning Commission as part of their Civil Society Window initiative to present its views on commercial surrogacy in India.

Table 2: Policy recommendations by NGO Sama The Draft Bill should be balanced keeping in mind the interests of all the parties involved in the arrangement, which would include: ART Bank, ART Clinic, Intended Couple(s), Surrogate, Child/ren born through the arrangement. In the current form, the Draft Bill seems to be skewed in favour of private providers and intended commissioning couple(s). The Draft Bill in its current form does not make any provision for the regulation of other players like the medical tourism agencies, surrogacy agencies, surrogacy law firms etc. While it stipulates that the sourcing of surrogate only through ART Bank, the role and responsibilities of these players also need to be systematically regulated, and stringent provisions incorporated in the Draft Bill towards this. Though the Draft Bill mentions about the ‘appropriate’ insurance of surrogate mother and the child by the commissioning parent(s), it does not elaborate on the kind and extent of insurance that will be provided, particularly in the context of post delivery and follow-up care. Considering the health risks that surrogacy entails, there also needs to incorporate provision of compensation to the surrogate and her family in extreme cases of severe health complications and death. Some of the recent instances have highlighted the necessity of such provisions. Health risks in the surrogacy arrangements cannot be neglected and the health rights of the surrogate compromised during the entire process. A balanced and equitable mode of payment to the surrogate needs to be stipulated in the Draft Bill. The present Draft is exceedingly imbalanced and unfavourable towards the surrogate. In addition to increasing the number of installments from three (as in the 2008 draft) to five (2010 draft), the maximum payment of 75 per cent is to be paid as the last installment (in complete contrast to the previous draft). Independent and long-term counselling should be mandated in the Draft Bill for the surrogate and the intended parents. As of now, counseling remains a one-time information giving process completely dependent on the discretion of the clinic. Further, there needs to be a clear demarcation between the mandatory information that should be provided and counselling. As such, counselling as a process has to be a comprehensive, balancing the needs and well being of all the parties involved in the arrangement. Considering the vulnerable position the surrogate occupies and the absence of any kind of legal assistance, provision of a state sponsored legal counsel should be made mandatory in all arrangements of surrogacy. Such a step would be useful in administration and preservation of the contract. This would also take care of any possible legal contests on behalf of the surrogate. The Draft Bill does not allow the surrogate to be the egg donor, thereby eliminating the possibility of genetic surrogacy, and only allowing gestational surrogacy (including the use of donor gametes). Such a provision closes any possible contesting claim over the baby. This also means that less invasive and expensive procedure like Intra Uterine Insemination (IUI) cannot be used for surrogacy arrangements. The option of genetic surrogacy should also be weighed in all its pros and cons before the Draft Bill is finalised. Comprehensive and stringent regulatory provisions towards protecting the rights and well being of the children born out of surrogacy arrangements should be included. Adequate follow up measures, especially in the context of trans-national surrogacy should ensure that no violations take place. The Draft Bill mandates the appointment of a local guardian in the case of couple staying outside the country (Indian or otherwise). The provision makes the local guardian responsible in case the intended couple does not take the responsibility of the child. The local guardian has also been entrusted with the responsibility of either bringing up the child or handing him/ her to the adoption agency. The Draft Bill should make clear provision with regard to the role of the local guardian to safeguard the well being of the child.

The industry is looking forward to the upcoming winter session of the Parliament in the hope that the unorganised surrogacy market in India would undergo a much needed reformation. Till then, the churning will go on ….

raelene.kambli@expressindia.com