November,15,2015: The advances in human reproductive sciences have made it possible for couples and others to have biologically their own children who otherwise cannot for a number of reasons. This has given rise to the concept of surrogate mothers. Surrogacy is a method of assisted reproduction. More common form is IVF/Gestational surrogacy in which the surrogate child biologically belongs completely to the social parents. The other type is gestational surrogacy where the surrogate child is genetically related to the male parent and the surrogate mother.
India has emerged as a favourable destination for surrogacy and its Assisted Reproductive Technology (ART) industry has evolved into a 25-billion rupee business annually, with Law Commission describing it as “a gold pot”. The phenomenal rise in surrogacy in India has been due to it being cheap, socially accepted. Moreover, surrogacy has emerged as a preferred option because of complicated adoption procedures.
Foreigners including NRIs seeking surrogacy for various reasons, both medical and personal, have also contributed to the rise of the Indian surrogacy industry predominantly because of it being at least ten times cheaper than in their respective countries. No statistics exist on the number of foreign couples coming to India to have a child. But ART clinics say that their numbers have been appreciably growing.
In India surrogacy heralded with the delivery of its first surrogate baby on June 23rd, 1994, but it took eight more years to draw world attention to it when an Indian woman in 2004 delivered a surrogate child for her daughter in the U.K. Surrogacy as a medical process has matured over the years. India has become a booming centre of a fertility market, partly surreptitiously, and today there are an estimated 200,000 clinics across the country offering artificial insemination, IVF and surrogacy. They call it Assisted Reproductive Technology (ART).
Divya is 28, in her seventh month of pregnancy and a surrogate for an Australian couple in their 40s. (Her last name has been withheld because her family members are unaware she is a surrogate, and because of the stigma that surrogacy carries in India.) This is not the first baby Divya has carried that is not her own — there was another in 2010, for an Indian couple. She is one of the millions of surrogates who help to generate 24.8 billion rupees in revenue each year and, along with roughly 3,000 clinics that provide in vitro fertilization, have turned India into the surrogacy capital of the world.
Because surrogacy is legal but not regulated, surrogates like Divya are subject to exploitation by middlemen, clinics and would-be parents, say women’s health advocates. Last month, India lost another opportunity to regulate its multimillion-dollar surrogacy industry, as the country’s Parliament failed to pass the Assisted Reproductive Technique bill, or ART, during its winter session, citing a lack of time. Critics of the bill say it doesn’t do enough to protect surrogates, but most agree that it would be better than nothing.
Surrogacy, the practice of carrying a baby for someone, can be gestational, in which the surrogate is implanted with a fertilized egg that has no genetic relationship with her, or traditional, in which the surrogate is artificially inseminated and is genetically related to the baby. India has no laws on commercial surrogacy — just loose guidelines issued by the Indian Council of Medical Research, which experts call toothless and woefully inadequate.
Without a law, there are no provisions to address everything that could go wrong. In 2008, for instance, a Japanese couple who had arranged for an Indian surrogate to carry their baby divorced before the baby was born. Though the father wanted the baby, Indian law doesn’t permit single men to adopt, so Baby Manji remained in a Jaipur hospital for two years until custody could be resolved.
Last October, an Australian couple abandoned one of their twin babies born to a surrogate in Delhi because they already had a child of the same sex. And in Mumbai, would-be parents Ravi and Divya Kapoor claim that the total cost of the surrogate pregnancy they commissioned turned out to be more than two and a half times the 10,00,000 rupees (about $16,100) that was agreed on.
In the US, surrogacy can cost hopeful parents upwards of $100,000, and Gianna explained that ‘the reoccurring theme’ when speaking with American agents and experts about couples hiring surrogates from other countries was money.
Commercial surrogacy in India costs nearly one-sixth the amount it would in the Western World.
The easy availability of surrogates, the clean medical facilities, the presence of a large English-speaking population and government emphasis on medical tourism have drawn thousands of foreign couples to India ever since surrogacy was legalized in 2002. Today, leading ART clinics in the country oversee anywhere from 100 to 300 surrogate pregnancies every year.
“In this business, the baby is the product. The surrogate is the means of production. Even those who care for the surrogate do so until the product is delivered,” says Ranjana Kumari, director of the nonprofit Centre for Social Research, which works on women’s issues. “The surrogate is waste material for them after the delivery.” She hopes that the ART bill, if passed, will change that.
“Surrogacy is such a complex issue that if India had managed to draft a just law keeping in view all parties, that would be a first for commercial surrogacy in the world. India would have set a standard universally,” says Anurag Chawla, a lawyer who specializes in surrogacy cases.
The bill, if passed, would create a government agency to regulate ART clinics, which would have to meet certain standards of cleanliness and medical expertise and would have to abide by a code of ethics. Clinics would be required to provide services such as counseling to the parents and the surrogates and keeping detailed documentation for both parties. Clinics that don’t meet the government requirements would lose their license and could face prosecution. But the bill doesn’t provide much of a safety net for surrogates, activists say.
Meet the surrogates
“I talk to the child all the time,” Divya says in Hindi, touching her bulging belly in the protective gesture of pregnant women everywhere. “My mother used to say he understands you and the pain you go through. Therefore, he will bond better with you when he grows older.” Sex determination is illegal in India, but she thinks it will be a boy.
A second later, she bites her lip. “I always forget he will not be with me in a few months’ time,” she says with a nervous laugh.
Many reputable ART clinics in the country have surrogacy homes, where the surrogates are provided with housing during their pregnancy, all expenses paid. According to Kumari, most surrogates in India aren’t lucky enough to be affiliated with a reputable ART clinic. Unfortunately for Divya, she is working with a lesser-known clinic in Delhi and doesn’t get any of these benefits. She lives in a 12-by-12-foot shanty made of wood, rags and plastic sheets; till the sixth month of her pregnancy, she cleaned the house and cooked for her family of four. Only recently did she stop her daily chores and move to a home provided by the clinic, where she is receiving medical care for the last months of her pregnancy.
“All hell will break loose at the clinic if I do not deliver a healthy baby,” she says. “And, unlike the surrogates in the fancy clinics, I get paid only 200,000 rupees after delivery. Only half of what they earn.”
The history of surrogacy
Surrogacy has been commercially available in the West since the late 1970s, when the first “test-tube baby” was born in England. Many countries, such as England and Australia, have banned commercial surrogacy for ethical, religious and medical reasons, as have some states in the United States. Those that haven’t banned the practice ensure that the industry is stringently regulated. Except for India.
Here, commercial surrogacy has been permitted for more than a decade, but without government regulation, surrogates have to accept the terms that ART clinics give them. Divya, like many surrogate moms in India, is illiterate. Desperate for the funds, she agreed to the contract by thumbprint, without knowing what the “stuff written in English” meant. A 2013 study conducted by the nonprofit Centre for Social Research found that 88 percent of surrogate mothers interviewed in Delhi and 76 percent in Mumbai did not know the terms of their contract. In fact, 92 percent of those in Delhi did not even have a copy of it.
Today, surrogacy contracts typically exclude the surrogate herself and are usually between the clinic and the commissioning parents, who agree to accept all the consequences of their decision, says Gita Aravamudan, author of the 2014 book “Baby Makers: The Story of Indian Surrogacy.”
Despite all the hurdles, many women choose to be surrogates because the pay makes a difference to their families. “If you ask me do I feel satisfied with the amount of money I get at the end of all the physical troubles I have gone through, I do not know,” says Priya, a surrogate in the southern Indian city of Bangalore. “But I can tell you that I desperately needed the 300,000 rupees I got, as my husband had a lot of loans to clear off. And I am happy I got it in a mere 10 months.”
According to the Centre for Social Research, clinics earn up to 2.5 million rupees per case. “And how much does a surrogate get paid? Less than 500,000 rupees. The inequality is blaring,” says Kumari. However, the clinics do provide services such as storing the embryo and collecting the eggs, which can be expensive.
And the bill won’t do much to address that imbalance, activists say, because it is biased toward the commissioning parents and the ART clinics. “I think India should worry about treating its surrogates in a more humane manner,” says Saumya Pant, an assistant professor at a communications-and-management institute, who has conducted extensive research on the issue. She believes the surrogates’ compensation should be standardized, that medicines and food should be made available to them free of cost and that their emotional and psychological needs should be addressed. Pant hopes that these provisions will be added to the ART bill when it is finally debated in Parliament.
However, there are important players in this industry, aside from the surrogates, whom the proposed law would not address: the middlemen, who recruit a steady stream of surrogates to the ART clinics. “I think it is bad enough that we do not have a law, but it is worse that the one being debated doesn’t address [significant] questions like middlemen,” says Chawla, the lawyer.
The story of the middlemen
A major part of the middleman’s job is to clear up misconceptions about surrogacy and convince women that what they are doing is not immoral. Many women do not understand that medical procedures can allow them to carry a man’s child without having sex with him. These middlemen — not formally affiliated with clinics, which usually pay them clandestinely — are largely invisible on paper.
In 2009, Divya’s father-in-law contracted tuberculosis and her husband injured his hand while working as a construction laborer. Divya, who till that point had been a housewife, felt she needed to step up and help the family financially. After several rounds of egg donation at the same Delhi clinic she is working with now, she carried her first baby as a surrogate mom in 2010. After the child was born, she was paid 35,000 rupees for her services. She was later told that Rahman bhai had made almost as much just by playing middleman.
A woman in Mumbai who regularly recruits surrogates for an ART clinic said on condition of anonymity that there is no dearth of young women in the slum where she lives who are in urgent need of money. She introduces them to the managers at the clinics and takes her cut. “I would like to believe I help both the clinics and the young women,” she says.
Divya is due to deliver the baby she is carrying in March. This is probably the last time she will be a surrogate, as most ART clinics want surrogates in their mid-20s. But her sister Durga is 23 and a potential candidate.
“The lawmakers have failed me,” Divya says, “but I hope they frame better laws by the time Durga gets ready to enter the business.”
Legislation to regulate the Indian surrogacy market – the Assisted Reproductive Technology Bill – has been pending for years, with activists arguing it’s too soft and industry taking the opposite view.
In the meantime, business may pick up. Last month Thailand outlawed surrogacy services for foreigners following several scandals, including an Australian couple that allegedly abandoned a baby with Down syndrome with his Thai mother but took his healthy twin home with them.
The Indian Council of Medical Research (ICMR), working under the Ministry of Health and Family Welfare (MoHFW) finalised the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in 2005 after extensive public debate across the country involving all stake holders. Under these guidelines, there was no legal bar for the use of Assisted Reproductive Technology (ART) by a single or an unmarried woman, and the child born would have legal rights on the woman or man concerned.
Thereafter, the draft ART Bills of 2008, 2010, 2013 and 2014 stated to be revised based on the recommendations of the Ministry of Law and Justice, have consistently proposed that ART in India would be available to all persons including single persons and foreign couples.
The draft Bill 2013, an exhaustive document containing 100 sections addressing various issues relating to ART, is stated to now be ‘Top Secret,’ being a part of the Cabinet note as per the requirement and procedure of the handbook of the Cabinet Secretariat on Cabinet writing notes. The draft Bills and Rules of 2008 and 2010 were extensively circulated for public opinion, besides being sent to State governments, institutions, statutory bodies, NGOs, medical professionals and other stakeholders, but the 2013 Bill was not circulated or placed in the public domain.
The Supreme Court judgment in Baby Manji Yamada vs Union Of India case in 2008 took due notice that in cases of “commercial surrogacy,” an intended parent may be a single male. The Court had the occasion to consider the petition of a Japanese grandmother wanting issuance of a travel document for her Japanese divorced son’s daughter.
In another matter decided by the Gujarat High Court in Jan Balaz vs. Union of India, 2009, the decision of the High Court holding — that babies born in India to gestational surrogates are Indian citizens and are entitled to Indian passports — has been stayed by the Supreme Court. However, the twin German children in the case were permitted to leave India upon the directions of the apex Court. The main issue of nationality and citizenship, being of grave importance, is still undecided.
The Ministry of Home Affairs (MHA), according to the guidelines of July 9, 2012, restricted surrogacy to foreign nationals; i.e. a man and a woman married for at least two years would be required to take a medical visa for surrogacy in India. As of now, even though surrogacy is an administrative concern and in the domain of the MoHFW, it has been decided that till the enactment of a law on the ART Bill, 2013, the guidelines issued by the MHA will prevail till then. Hence, foreign single parent surrogacy is barren.
Restricting surrogacy to infertile Indian married couples only, and debarring all foreigners other than OCIs, PIOs and NRI married couples, is a turnaround in the thought process. The suggestion barring foreigners from commissioning surrogacy in India is stated to be subject to there being no conflict with other Indian laws applicable to foreigners, such as those for adoption. The most important contradiction and inconsistency seems to be that arising from the Guidelines Governing the Adoption of Children, 2011, for inter-country adoptions, which now have statutory sanction by virtue of them having being enacted under the Juvenile Justice (Care and Protection of Children) Act, 2000. The Juvenile Justice Act clearly provides that a court may allow a child to be given in adoption to an individual, irrespective of his or her marital status.
Moreover, the Guardian and Wards Act, 1890 and The Hindu Minority and Guardianship Act, 1956 permit a guardian to be declared or appointed where the Court is satisfied that it is for the welfare of a minor. Barring single parents to adopt is not statutory but can be a restraint in a particular case upon examination by a competent court. Therefore, debarring single persons and foreign nationals from being parents will amount to rewriting laws in existence which have been enacted by Parliament.
The latest verdict of the Supreme Court recognising transgenders as the third gender says “discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution.” Clearly, legal recognition means that they would be entitled to rights of adoption, succession, inheritance and other privileges under law.
The sum and substance is not to shut the door to surrogacy which is an accepted societal practice in India and grown slowly over almost two decades. Medical technology, advancement of science permitting free export of frozen embryos and other scientific methods have offered hopes to childless people. The more pragmatic approach would be to make a law hedged with safeguards, checks and balances. The appropriate and desirable method would be to create a mechanism to judge the suitability of proposed surrogate parents rather than to debar all single and foreign persons.
This would also avoid any conflict with existing laws of adoption wherein foreign persons including single parents are allowed to adopt through a strict and rigorous mechanism provided by CARA.
Simply trying to shut out surrogacy for foreign nationals and single persons may not be the ideal way to stamp out the hopes of persons wishing to be a parent. Whether Indians or foreign nationals, law treats persons as individual parents when required. A restrictive meaning to the word “person” cannot qualify or change the definition by restricting it to an Indian national.
The celebrated view of the apex court in widening the horizons to prevent discrimination on grounds of sex or gender identity is a new thought process based on international covenants of human rights. We cannot permit our thinking to be retrograde simply because of the problems accompanying surrogacy. Administrators cannot usurp law making functions to be a law unto themselves.
Salient features of the Bill-