Surrogacy Boom in India

By Shuriah Niazi & Neeta Lal

Smaller cities in India, such as Bhopal and Indore in Madhya Pradesh, are frequented by childless couples from other parts of India and even abroad.

Unable to bear children for various reasons, such couples travel to these cities with hope. Bhopal and Indore have certainly gained popularity as a result of an increasing number of women agreeing to surrogacy (carrying another couple's embryo to full term), the many specialized Assisted Reproductive Technology (ART) clinics, and the comparatively affordable treatment.

When Bhopal residents Rajesh Shrivastava, 41, and his wife, Usha, 37, were unable to conceive after 12 years of marriage, they decided to go in for ART (this includes techniques such as In-Vitro Fertilization) and surrogacy. The couple visited the ART centre run by Dr Dinesh and Dr Shefali Jain in Indore.

"Usha had suffered six miscarriages in 12 years. Initially, the idea of a surrogate did not appeal to them. But they agreed when one of their relatives came forward," reveals Dr Shefali Jain. This was two years ago. Now, Rajesh and Usha are proud parents of twin daughters. The treatment cost the couple just Rs 150,000 (US$1=Rs 39.90).

Apart from the domestic rush (the Jains alone attend to around six surrogate queries a month), a large number of couples from abroad also travel to Bhopal and Indore to fulfill their desire for a child. Several American, Russian and British women are duly registered with the Bhopal Test Tube Baby Centre for the procedure. Often, couples have to wait for as long as eight months to a year for their turn.

Their reasons for coming to India are varied. For some, the treatment is far too expensive in their own country; for others, their national laws do not permit surrogacy. Recently, a 37-year-old Russian came to Bhopal as the expense for surrogacy is prohibitive in her country - between Rs 15,00,000 and 20,00,000 - as compared to the Rs 200,000 cost in Bhopal.

Dr Randhir Singh, Director, Bhopal Test Tube Baby Centre, elaborates, "Women source information about the availability of surrogate mothers in Bhopal over the Internet and then contact us. In foreign countries, surrogate mothers are not easy to find. Therefore, the interest in India."

Even as an increasing number of childless couples from overseas come to India, legal experts express their reservations. Many foresee hurdles after the child is born and caution that surrogacy should be carefully considered.

According to senior advocate Kirti Gupta, "At present, it is not difficult to have a baby through surrogacy in India because there is no law to control or regulate it. The technique is cheap, when compared to other countries, and surrogate mothers here charge comparatively less for the services."

As there are several clinics now that perform such services - gauged by the number of advertisements in the local media as well as on the Internet - it is easy to select a clinic. However, the real problem arises after the birth of the baby. In India, in the absence of any clear laws on the issue so far, foreigners are unable to get legal assistance when it comes to taking their child back to their home country.

Childless couples in India, too, must consider some issues. For example, whose name will be mentioned as parents on the birth certificate of the newborn or what should be done in case the surrogate mother refuses to hand over the child?

To lay such doubts to rest, clinics that provide ART facilities take recourse to the guidelines set by the Indian Council for Medical Research that state that the surrogate mother has to sign a contract with the childless couple. But even then, counter lawyers, it is not clear whether such a contract has any legal sanctity.

Doctors take their own precautionary measures. Dr Dinesh Jain says, "We allow a woman to become a surrogate only after we have fully checked her credentials and if we trust her. We also ensure that the child born is handed over to the childless couple."

In Indore, which has a population of 30,00,000, many women responded to an advertisement seeking surrogate mothers, placed in a leading Hindi daily. Within 24 hours of the advertisement having appeared, a dozen women had evinced an interest. Surprisingly, none enquired about the couple. Money was the overriding concern.

Women who are willing to undergo the procedure come from lower middle class backgrounds, are married, and are in need of money. So much so that, often, childless couples negotiate a better price as a result of the competition. Shweta Khanna, 35, from Indore was willing to be a surrogate mother. Initially, she asked for Rs 100,000. However, when another woman offered to do the same for Rs 75,000, Shweta had to settle for Rs 50,000. "I have been a surrogate mother before. This time I'll have no problem... my husband is also agreeable," she says. Most women insist on anonymity for fear of social stigma.

But amidst all the doubts and societal taboos, the number of childless couples wishing to have a child through this technique is on the rise. It is estimated that in Indore, which has 11 ART centres, around 200 childless couples have been treated over a period of three years.

Regulating the Surrogacy Boom
After years of trying and treatment, US-based couple Jason and Nancy are finally proud parents of a healthy baby girl. And their tiny bundle of joy, Tara, was delivered for them by Ashaben through a surrogacy arrangement at Kaival Hospital in Gujarat. An Israeli gay couple experienced similar joy when, at Mumbai's Hiranandani Hospital last September, they 'fathered' twins through a surrogacy programme.

Noted fertility expert Dr Indira Hinduja describes surrogacy as one of the well- accepted methods of assisted reproduction, that benefits patients who can't conceive or carry a pregnancy to term. "Such people can take the help of surrogates, who carry their child in the uterus and then hand it over to the genetic parents, post-delivery," she says.

Of late, there has been a growing demand for Indian surrogate babies from foreigners, infertile couples in India and even single mothers - making the country a preferred destination for such a service. As per the Indian Council for Medical Research (ICMR) estimates, due to the upward spiral in the number of surrogacy cases, the reproductive sector in India is expected to rake in a whopping US $ six billion this year.

"After IT services," opines Dr Nisha Kathuria, a Delhi-based gynecologist / obstetrician, "it's now the turn of babies to be outsourced from India. In these times of globalization and market-driven economies, there's considerable demand for this service."

Indeed. And fuelling the demand is a slew of factors, including low medical costs and a competent workforce. According to Dr Anoop Gupta, Medical Director, Delhi IVF and Fertility Research Centre, the total cost of renting a womb in India works out to around US$10,000 as compared to about US$50,000 in the West. In the US, states the expert, surrogate mothers are typically paid US$15,000, while the agencies claim another US$30,000. In India, however, fertility clinics charge in the realm of US$2,000 to US$3,000 for the procedure, whereas a surrogate is paid anything between US$3,000 and US$6,000 - a fortune in a country where the average annual per capita income is US$500.

But, despite the demand, surrogacy has its share of critics in India due to the moral, legal and ethical debate that swirls around it. Opines lawyer/activist Preeti Katyar, "If surrogacy becomes an avenue by which women in richer countries choose poorer women in our country to bear their babies, then it is economic exploitation, a kind of biological colonization."

A factor that has contributed to the negative feeling is the lack of a definitive legal framework to deal with surrogacy and related issues. While commercial surrogacy is banned in many countries - including Italy, Australia, Spain and China - and permitted with restrictions in the US, France and Germany, the Indian government is yet to formulate any laws. In fact, the only guidelines, which regulate surrogacy - and the clinics that provide ART (Assisted Reproductive Techniques) - are the ones framed by the ICMR and the Ministry of Health and Family Welfare in 2005. But these, point out experts, are nebulous and patient -
and doctor - unfriendly.

For instance, Section 3.10 of the ICMR guideline states, "No relative or person known to the couple may act as a surrogate." This, experts believe, is ludicrous as it propels childless couples needlessly towards commercial surrogacy. In fact, in-vitro fertilization (IVF) experts say that in 90 per cent of the surrogacy cases in India, the mother is related to the childless couple while only in five per cent cases, the surrogacy is altruistic and in the remaining five per cent, commercial. So, infertile couples are forced to think twice before going in for it due to the costs involved, which is unfortunate as India is home to 14 per cent of the world's estimated 80 million infertile couples.

Then there is ambiguity about a surrogate mother's rights. Delhi-based lawyer Rita Row says, "The guidelines are skewed and thoughtless. There's very little to protect the interests of the surrogate mothers." The guidelines state that "a surrogate should be younger than 45 years" without mentioning the minimum age. So does that mean an 18-year-old, or someone even younger, can become a surrogate mother?

Also, what happens after the baby is born? "The biggest problem," explains Dr Gupta, "arises after the baby's birth. Foreigners are unable to get legal assistance when it comes to taking the child back home." According to the ICMR guidelines, a child born through surrogacy "must be adopted by the genetic (biological) parents unless they can establish through genetic (DNA) fingerprinting that the child is theirs." Ergo, the only option left open to them is to 'adopt' the baby - which is a very lengthy and cumbersome process in India.

The regulations don't provide legal protection to Indian parents, either. The only legal recognition of the child's parentage is the birth certificate, and it's only the birth mother's name that can be used for this purpose. Consequently, if the birth mother decides not to hand over the baby after birth, there's nothing the intending parents or the doctor can do about it.

Unsurprisingly, with such ambiguous regulations in place, surrogacy in India has become a dangerous playing field for unscrupulous middlemen who entice and push uneducated and poor women into surrogate motherhood. This practice also encourages the misuse of a surrogate child for terrorism, prostitution or unethical genetic engineering research.

India can take a few pointers from the US, which has strict regulations in place - the law there mandates that surrogate agreements be meticulously drawn out to delineate the responsibilities of intending parents as well as the surrogate. "But in India," says Dr Kathuria, "surrogacy has a high potential for abuse as the monetary stakes are high." Admits Dr Raman Prakash, a Mumbai-based psychologist who also counsels commissioning parents and surrogate mothers, "When anything is influenced by economics, there's invariably a dark side to it."

Experts believe that the basic problem is that people are not well informed about surrogacy and its related issues. For example, a surrogate's health is not given due priority. Fertility doctors are allowed to implant up to six embryos in a donor's womb - in other countries it's limited to three - which creates the risk of multiple pregnancies and can lead to severe complications, stillbirth or even the surrogate's death.

In many cases, the surrogacy option is used even when it is not necessary. "Sometimes patients have had repeated IVF failures or recurrent miscarriages," says Dr Kathuria. "Usually, a simple egg donation is enough rather than a more complicated surrogacy option."

Doctors agree that a mass awareness campaign is key to making the treatment more accessible to all. Many sensitive, surrogacy-related issues, too, need to be tackled on a priority basis. As Dr Asha Jaipuria, a social activist and NGO worker puts it, "Who ensures that the woman's unused eggs or embryos are not harvested/stored and then sold to couples who want fair-skinned children? Or to couples who don't have viable eggs/sperms?"

Moreover, some questions need urgent answers, such as: what happens if the surrogate dies during childbirth, is there due compensation for her motherless children in that case; and what about the postpartum psychological and emotional support for poor women surrogates?

There's also the issue of money. As the treatment is expensive and huge amounts of cash are involved, perhaps there should be a regular audit to oversee the funds distribution to the surrogates.

It's time the government seriously considers enacting a law to regulate surrogacy and related IVF/ART technologies in India to protect and guide couples going in for such an option. Without a foolproof legal framework, patients will invariably be misled and the surrogates exploited.