To rent a womb

India is the hottest destination for surrogacy, given the wombs for rent trend becoming a thriving trade. The new bill seeks to regulate surrogacy, with tight laws governing the rampant practice. Yet, there are a few doubts that loom large. Janani Sampath interprets surrogacy from all angles to get the clearer picture about surrogacy in India.

Madhavi (name changed) comes from a lower-middle class family in Salem. She was married to a working class, blue-collared electrician Sekar (name changed) in 2000. The couple that has two children, a girl aged 8 and a son aged 6, has been trying their best to lead a debt-free life for a few years now. Doing menial jobs was turning out to be an impossible way to meet their ends. Finally, the wife decided to go the surrogate way to improve the family’s financial status. Madhavi’s story speaks the larger truth about surrogacy in the country, where monetary gain is the driving factor.

The medical angle


Surrogacy is part of the Rs 25,000 crore Assisted Reproductive Technology (ART) sector in India. Dr. Priya Selvaraj, Gynecologist and Obstetrician at GG hospitals, Chennai reveals that there are only 75 registered IVF clinics in the country that have licenses to assist reproduction through surrogacy.

Surrogacy is the last attempt made by doctors to enable a couple have a child of their own. Dr. Priya explains, “Many couples who have undergone IVF procedures and are yet unable to have a child are suggested to go for surrogacy. Surrogacy has two categories, traditional and gestational or commercial surrogacy. Traditional surrogacy involves artificial insemination or IUI (intrauterine insemination). However, the most prevalent surrogacy technique is the commercial procedure where there are three parties involved - a couple, an egg donor and the surrogate mother.”

The success rate of surrogacy depends on the surrogate mother’s age, which is under 45. Fertility clinics insist that the surrogate mother should have had a child of her own before volunteering for surrogacy. Dr Priya says, “They must know how it is to bear a child, before becoming a surrogate. The success rate is largely dependent on the surrogate’s health conditions and clinics ensure that they keep the risks involved at the minimum. A surrogate mother cannot have more than two cycle of surrogacy. We also do not allow relatives to act as surrogates, to keep emotional tangles out of the procedure.”

Dr. Priya says that often she finds couples who are in a hurry to go for surrogacy. “Sometimes, when they stand chances to bear a child through IVF, they insist on surrogacy. We always keep surrogacy as the last option,” she says.

Legal limbo


The legal tangles in surrogacy, as regarding India, arise when there are NRI couples involved in the procedure. There are a few landmark judgments passed during recent times, the most significant being the case of baby Manji Yamada who was born to an Indian surrogate mother for a Japanese couple. The couple separated during the time when the surrogate mother was carrying the baby and Manji’s maternal grandmother claimed custody and had to wage a complicated legal battle before taking the baby to Japan.

GR Hari, Partner at the Indian Surrogacy Law Centre based in Chennai says that many NRI and foreign couples flock to India since there are no comprehensive laws on surrogacy. “The problem arises when they want to take back the child born to a surrogate mother. In Europe, surrogacy is banned and is put in the same category as trafficking. Therefore, India becomes an ideal place for foreign couples. My clients are from Australia, USA, Brazil, UK and many countries across Europe. There are knotty legal issues as these countries do not recognize surrogacy. In countries like the US, surrogacy laws differ with each state,” he says.

The Law Commission of India submitted its 228th report on the ‘Need for Legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy’, submitted in August 2009, highlights a few topics that need to be addressed. The commission’s report has taken into consideration the arrangement for the surrogate child due to unforeseen circumstances. The report also noted that one of the intended parents has to be a donor.

The Assisted Reproductive Technology Bill-2010, among few other main points, notes the rights of the surrogate child to seek information on the donors and surrogates.

Dr Priya, who has been in touch with couples as regarding legal proceedings for some of the surrogate deliveries at the nursing home, says consulates look at a few parameters before allowing them to take the child to their country. “Sometimes, couples are taken aback with the procedures involved. However, there are a few cases where couples are clearly about the questions they will have to face. They are prepared for it, thoroughly. We tell them that they shouldn’t get emotionally bogged down by some straight questions raised in the consulate,” she says.

Landmark judgments


When baby Manji Yamada’s maternal grandmother came to Indian to claim the child, a Jaipur based NGO petitioned that due to the absence of adoption laws, no one can claim the baby. When the case reached the Supreme Court, the court directed the government to give the baby a travel certificate.

A German couple, Jan Balaz and Susan Lohle, had surrogate twins through a Gujarati surrogate mother at a nursing home in Gujarat. However, they couldn’t take the child to Germany since surrogacy isn’t recognised by the country’s laws. The Supreme Court of India had suggested the couple to adopt the twins.

The gay couple Yonathan and Omer from Israel could not adopt or have a surrogate mother. They came to Mumbai in search of a surrogate mother. Yonathan donated his sperm and the couple selected a surrogate. Baby Evyatar was born and taken to Israel. The Israeli government had required them to do a DNA test to prove their paternity before the baby’s passport and other documents were prepared.

The most recent case is of Dan Goldberg who in May 2010, was prevented by a Jerusalem court to bring his child back home. The judge declared that ordering paternity tests, that couples are meant to do to prove the child’s DNA and acquire citizenship, wasn’t under his jurisdiction. Later a family court sanctioned clearance for the tests and the Israeli with his twins returned home.

Commercial perspective
Ever since the birth of India’s first IVF child, Kanupriya, in the year 1978 in Kolkata, ART has come a long way. However, there are a few flip sides to the practise of surrogacy that has gained momentum since the early nineties. Anand in Gujarat, also known for its diary boom, has gained popularity for baby boom through surrogacy as well. It is believed to be the epicentre of surrogacy in India, as every year hordes of foreigners throng Akanksha IVF Clinic.

The clinic run by gynaecologist Nayana Patel has had close to 300 successful surrogacy cycles. Dr. Nayana says that it is often misunderstood that surrogacy is equal to trafficking. “The truth is we are helping a childless couple have a baby through medical techniques. There is nothing immoral about it; it is unfair to compare it with child trafficking,” she says.

Akanksha has a planned set up for surrogacy, where there are nurses and maids taking care of surrogate mothers under the same roof. The women who volunteer to be a surrogate are paid up to Rs 2.5 lakhs per cycle.

Dr. Nayana explains, “One party is yearning for their own child and the other is in need of the money. Through surrogacy, both their needs are met. Every couple has the right to have their own child; they shouldn’t be denied that right. If medically we have advanced to an extent where we can bridge the gap, why can’t we do it?”

If we take statistics, India’s surrogacy trade is a multi-million pound industry and the main reason behind the whopping figure is the easy availability of surrogate mothers in the country and a higher cost involved for the same procedure in foreign countries.

“In the USA, a surrogate mother would cost up to 7000 US dollars. Here, they pay less than half of it and many are in need of that money, so finding a surrogate mother is not difficult, once the mother clears a few major medical tests,” says Dr Nayana, who believes that more than seeing the monetary aspect of surrogacy, one should understand that by the end of the day, a couple is going to have their own child, a child that they couldn’t have naturally.

Akansha clinic also had a case of grandmother surrogacy when one of the surrogate mothers bore a child for her daughter, who was unable to conceive.

Social slant
It is often mistaken that surrogacy leads to exploitation of women in need. However, viewing it in their perspective, one would realise that the surrogates are clear that they are doing it for the money.

Dr. Priya says, “We have to filter a huge number of applicants for surrogacy. And, those who are suitable for the procedure are counselled. They are clear that they are here for the monetary gain. Surprisingly, we haven’t had any case where the surrogate mother has reached out to her child and tried to bond with it. Many couples go for surrogacy and not adoption because they want a new born baby.”

Early this year, at the 54th All India Congress of Obstetrics and Gynaecology held in Hyderabad, many gynaecologists argued that the trend of surrogacy was alarming and that couples should give a thought to adoption. The debate threw some light on the issue of adoption vs. surrogacy and made interesting revelations. One being that there are more than 10 lakh homeless children in the country and if every couple in need of a child comes forward to adopt, there would be a few left on the streets.

India’s adoption laws are stringent, say many, but some believe it is worth the wait. CARA (Central Adoption Resource Agency) figures show that in-country adoption figures have plunged over the last ten years. Legal experts claim that the laws governing adoption in the country most often discourage people from adopting. It could take three years and more for the adoption procedure to be completed. The anxiety and wait revolving around adoption can be excruciating. Surrogacy, by those standards, is a far easier arrangement.