Surrogacy industry thrives in India amid regulatory gaps

New Delhi: When Prime Minister Narendra Modi launched the “Make in India” campaign on 25 September, surrogacy would have been last thing on his mind. Now a leading fertility expert in the capital says she has been inviting couples—many of them foreigners—to “make in India” for years.

“Our Prime Minister is knocking doors and inviting the world to come ‘Make in India.’ We are giving people a ‘make in India’ family,” said Rita Bakshi, an IVF (in vitro, or artificial, fertilization) expert.

A register marked “surrogacy” lies on her desk in her well-appointed South Delhi office. Next to it is an Excel sheet tracking the health parameters of surrogates with Bakshi’s International Fertility Centre in Delhi. At any given time, she says, her clinic handles 100 to 150 surrogacy cases.

She spoke as lawmakers prepare to debate a Bill aimed at regulating the commercial surrogacy sector, in the upcoming winter session of Parliament.

India has an estimated 20-25 million infertile couples, for many of whom assisted reproductive technology (ART) represents a solution to their problem. For infertile foreigners and non-resident Indians (NRIs), ART in India is a relatively inexpensive proposition.

For medical practitioners, it is a market opportunity with the number of IVF cycles creeping up from an estimated 7,000 cycles in 2001 to 85,000 in 2011. The number of clinics offering these services has shot up from 59 in 2001 to close to 600 by 2011.

According to Bakshi, nearly 30-40% of couples who come to her are foreigners, 30% foreigners of Indian origin, and the rest Indians. According to Mumbai-based ART consultant Parikshit Tank, “the vast majority of surrogacy cycles are conducted for standard, well-established indications for Indian nationals”.

Surrogacy is only one aspect of ART, yet it is the one that seems to get the most publicity—often for the wrong reasons. The shortcomings in India’s legal, yet unaccredited, unsupervised and unregulated commercial surrogacy sector came to light recently when an Australian couple was found to have abandoned one of their twin babies born to an Indian surrogate—apparently because they already had a child of the same sex. The incident came to light in an interview given by the Australian family court chief justice Diana Bryant, who had been informed of it by the Australian high commission in New Delhi. There is no information available about what happened to the child.

This has added to an already heated debate about the rights of the child, the role of IVF clinics and the responsibilities of commissioning couples in India’s unregulated landscape of commercial surrogacy.

Some rules are hard to fathom. For instance, guidelines allow single Indian parents to commission a surrogate. But single foreigners are excluded for some reason. “This inconsistency leads to a lot of confusion. We should allow couples who are legally allowed to adopt in their home country to commission surrogates here. While the administration is offering lifelong visas for PIOs (persons of Indian origin), we are in the process of shutting doors which were previously wide open,” said Bakshi, referring to surrogacy and the changing guidelines on who is eligible to be a parent and who is not.

The government’s July 2012 guidelines say commissioning foreigners are required to have been married for at least two years before seeking a surrogate baby in India, thus shutting out foreign single parents and homosexual couples.

In addition, commissioning foreign parents need a letter from their embassy in India or their foreign ministry stating that the country recognizes surrogacy and the baby will be allowed entry in the parents’ country as their biological child.

Regulatory issues

Commercial surrogacy has been allowed in India since 2002 but remains an unregulated grey area. In 2008 the Supreme Court said in a judgment that surrogacy as a medical procedure “is legal in several countries including in India”, without elaborating on what makes surrogacy legal.

This was in the “Baby Manji Yamada” case in which the commissioning parents divorced during the pregnancy and the commissioning mother refused to accept the baby. The court finally granted custody to the baby’s grandmother. In 2008, another case, on the citizenship of surrogate babies led the Gujarat high court to state that there is “extreme urgency to push through legislation”, which addresses issues that arise out of surrogacy.

A United Nations-backed study conducted two years ago estimates the surrogacy business in India to be worth more than $400 million a year, but civil society activists say the size of the market could well be more than twice that amount. A draft ART Bill has been pending in Parliament since 2010 and is now expected to be taken up in the upcoming winter session beginning 24 November.

This too has become a subject of controversy, with civil groups saying they have not been consulted over its drafting.

“There are so many people who have done tremendous amount of research who can contribute to the regulation and drafting of a comprehensive Bill but the ICMR (Indian Council of Medical Research) has been very non-transparent. It is difficult to get information about the Bill,” said Deepa Venkatachalam of Sama, a New Delhi-based resource group that works with issues of women and health.

The proposed Bill is India’s first attempt at regulating the sector although The National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India have been around since in 2005 and subsequently amended in 2008, 2010 and 2013. In its current form, the Bill is an impressive document. ART banks, under the Bill, will now be registered and commissioning parents will have to go to these registered banks to identify surrogates, said R.S. Sharma, deputy director general of ICMR and a member of the drafting committee for the Bill.

The Bill also seeks to streamline the process of recruiting surrogates, who currently earn anywhere between ₹ 1.5 lakh to ₹ 4 lakh for their services—with a 25% “bonus” for delivering twins. The Bill will require the commissioning couples to approach registered ART banks and not private IVF clinics, as is currently the case.

“This will address a lot of malpractices by private banks. Since a government-approved bank will be involved from the very beginning, the margin of errors is reduced when it comes to the chances of babies being abandoned or the surrogate being treated unfairly,” added Sharma.

More importantly, professional surrogates will be registered with these banks and will need an Aadhar card to be eligible. “This will iron out issues about the exploitation of commercial surrogates. Currently, there are so many malpractices when private clinics advertise for surrogates and the money paid is arbitrary. They charge too much from commissioning couples and pay too little (to surrogates). We are hoping the Bill will end these issues,” said V.M. Katoch, director general of ICMR.

Moreover, the Bill will continue with home ministry guidelines that stipulate that surrogacy services will be offered only to those foreign nationals who come from countries that legally recognize surrogacy.

Disturbing practices

One problem, however, is the lack of hard data about the sector. As things stand, there is no reliable data even about the number of ART clinics. There is a National ART Registry of India (NARI) but disclosures there by medical practitioners on pregnancy rates, live birth rates, the number of cycles and so on are purely voluntary and do not tell the whole story, said Manish Banker, executive director, Nova IVI Fertility, Ahmedabad and a member of the government board on the Bill.

The problems with commercial surrogacy in India are both ethical and legal in nature. The absence of regulation raises the spectre of a surrogacy black market, baby-selling and even questions of legal rights of a surrogate and the baby.

For instance, before a pregnancy is commissioned a contract is signed between the parties involved.

However, according to a recently published study by the Centre for Social Research (CSR), an NGO dealing with women’s issues, 88% of surrogate mothers in Delhi and 76% in Mumbai who were interviewed for the survey did not know the terms of their contract.

In fact, 92% of the surrogates in Delhi did not even have a copy of the contract and only 27% of the clinics in Delhi and 11.4% in Mumbai were party to the contract. The contract is usually signed between the surrogate mother, her husband and the commissioning parents.

“What is the legality of these contracts? The few that I have seen consist of a four-line paragraph on a ₹ 100 stamp paper simply stating that the woman is entitled to a certain amount of money for being a surrogate and she has no claim on the baby. It’s a mockery of the term (contract),” said Manasi Mishra, who heads the research division of CSR.

Clinics refute this claim. According to Inderbir Singh, a Delhi-based lawyer who has drafted several surrogacy contracts, the agreements are comprehensive and address all difficulties that could arise from the business. “An important clause in the contracts is that either party, be it the surrogate mother or the commissioning parents, is free to approach the civil court for enforcement of the contract,” he said.

Mishra’s study also threw up some disturbing practices. In some clinics, she claims, up to three embryos are transferred in the womb of the surrogate. “Normally, two mature. There are times when all three mature. Depending on the sex and the gender preference of the commissioning parents, the third embryo is removed,” said Mishra. This process is known as foetal reduction.

The study reveals poverty and education of children as the motivating factor for women to become surrogates.

Himanshu Bavishi, president of the Indian Society for Third Party Assisted Reproduction (INSTAR), private association of IVF clinics, said most professional surrogates were women with high aspirations and little money. “There is no question of compromising the rights of commercial surrogates. They are not beggars, but women who have aspirations and their usual jobs as domestic helps would not let them meet these aspirations. Being a surrogate gets them the money their regular jobs would not,” added Bavishi.

Another issue of concern is the medicalization of the surrogate mother’s bodies. From lack of awareness about the number of cycles they might have to undergo to the side effects of gestational surrogacy—the only kind allowed by India—surrogates, activists say, always end up disadvantaged.

Unlike traditional surrogacy which uses the surrogate’s own egg, gestational surrogacy involves suppressing the surrogate’s ovulation cycle and injecting hormones to prepare her uterine lining for the embryos which are made either by the commissioning mother’s own eggs or a third party donor’s eggs.

This procedure can later lead to side-effects like mood swings, irritability and depression, facts which activists say are not always shared with the surrogates.

Biological vs Genetic

“Much is made of the phrase ‘informed consent’, of the surrogate but it’s a grey area. How much does she know about the process? Emotionally, physically, it’s a very invasive. There is no cap on the number of cycles she might have to go through before the embryo is attached. Also Caesarean are conducted in order to co-ordinate the birth with the arrival of the commissioning parents,” said Sama’s Venkatachalam.

Surrogate mothers are often counselled over the importance of separating themselves from any emotional bond with the foetus. They are advised that while they might be carrying the child there is no genetic link. Venkatachalam finds this argument troubling. “What is biological and what is genetic? A woman carrying a child is not seen linked to it if she has not provided her eggs. Would her link be greater if she did so?”

The CSR study quotes a paper by Amrita Pande, a senior lecturer in the sociology department of the University of Cape Town as saying, “The surrogate is expected to be disciplined and a willing contract worker who will give away the baby…without creating a fuss. But, simultaneously she is expected to be a virtuous, nurturing mother attached to the baby…”.

However, many doctors describe surrogacy in terms of not just empowerment but also compassion. “Yes these women are economically deprived. They are bothered about their children but somewhere their decision to be a surrogate is also motivated by philanthropy. When we counsel them, they meet the intended parents and understand their agony and pain. They understand that they are not doing it for money, it’s but a byproduct. I tell the parents she is doing upkaar (favour) for you,” said Bakshi.

All parties concerned hope that the Bill will address issues concerning the health and economic rights of surrogates.

Bakshi feels the government could consider introducing a cap for a minimum fee to be paid to the surrogate. Currently there is no provision for post-partum care of the surrogate. “Our research uncovered that clinics hand over a multi-vitamin pack to surrogates after birth in the name of post-partum care,” said CSR’s Mishra.

Moreover, what happens if the surrogate miscarries, say, in the seventh month of her pregnancy? Does she get sent home without any pay or is she entitled to some money?

In 2012, 36-year-old surrogate mother Premila Vaghela died in childbirth in the eighth month of her pregnancy in Ahmedabad. The baby, however, survived. News reports at that time suggested that thefamily was planning to refuse any compensation offered.

This was different from the money promised in lieu of surrogacy. Right now surrogacy works through middlemen and word-of-mouth.

According to the CSR report, 73.7% of the surrogates in Delhi were approached by agents whereas in Mumbai the figure was 73.21%. “The agents usually are men with some standing in the community who are respected and trusted. They have observed these women, their needs and recruit accordingly,” said Sama’s Venkatachalam. The recommendation of a family member also acts as a powerful initiative. Several surrogates have also been discovered to have been egg donors in the past, implying familiarity with the networks in place.

As the government mulls over the Bill, the sector has lost business to the neighbouring countries where affluent couples can get affordable, hassle-free alternatives to becoming parents. “In 2012, the Indian government passed the directive that we could not cater to single parents and homosexual couples. Then they added conditions like the commissioning couple has to be married for at least two years prior to opting for surrogacy. Such lengthy and tedious government procedures have let to a lot of business moving to Nepal and Thailand,” Bavishi added.

And then, there are doctors who believe that except for the rare aberration, the system is working fine with the current ICMR guidelines. “Barring a few considerations, the clinical practice of surrogacy is straight-forward,” says Tank, the Mumbai-based ART consultant. “Most of the Bill’s provisions are already being adopted in practice.”