Deccan Herald / Feb 16,2008
There is a growing demand for Indian surrogate babies from foreigners but there is a lack of a legal framework to deal with surrogacy, paving the way for unscrupulous middlemen who push uneducated and poor women into surrogate motherhood, says Neeta Lal
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. 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 gynaecologist/obstetrician, “it’s now the turn of babies to be outsourced from India. In these times of globalisation and market-driven economies, there’s considerable demand for this service.”
Low medical costs
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 colonisation.”
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 fertilisation (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. 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, 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.
Women’s Feature Service