WHAT PRICE SURROGACY IN INDIA?
Sensing the rise in demand for surrogacy in India, especially by foreign nationals and the possible legal hassles that surrogacy arrangements might give rise to, the Union Ministry of Home Affairs (MHA) imposed certain restrictions on surrogacy arrangements from December 2012. But the restrictions seem to go against popular opinion within the medical fraternity and has garnered outcry from couples, compelling the MHA to reconsider the regulations.
In the meanwhile, the Union Health Ministry, in consultation with Indian Council of Medical Research (ICMR) has drafted the ‘Regulation of Surrogacy in India - Assisted Reproductive Technology (ART) Bill’ which seeks to regulate the “wombs-for-rent” issue. The bill is expected to be tabled in the ensuing monsoon session of the Parliament.
Dr. Manish Banker, President, Indian Society for Assisted Reproduction (ISAR), said, “The draft committee of ICMR and MHA recently had a joint meeting in which certain suggestions were made about relaxing the guidelines a bit. However, the MHA is yet to make changes in the guidelines.”
As per the rules circulated to Indian embassies, foreign couples seeking to enter into a surrogacy arrangement in India must be “men and women (who) are duly married and the marriage should be sustained at least for two years”. The special emphasis on “men and women” seems to be an attempt to keep gay couples out of the ambit of surrogacy itself. Besides, those wanting to commission surrogacy should seek medical visas and should not enter India on tourist visas. The directive also stated that the visa application must mention whether the couple’s home country recognizes surrogacy and gives an assurance that the country will permit the entry of the child born from an Indian surrogate as there have been several cases of babies born out of cross-border surrogacy being trapped in citizenship limbo because their parents’ countries refused to grant them passports.
Thanks to the restrictions on surrogacy arrangements, many infertility clinics across the country are in a fix as frozen embryos of couples are waiting to be implanted as per earlier agreements.
Dr Nayna Patel, Chief of Akanksha Fertility Clinic, Anand, Gujarat, finds the requirement of two years sustained marriage “ridiculous”.
“What if a woman gets married at the age of 39 years and finds it difficult to conceive? What if her eggs get depleted by the time she is 41 years old,” questions Dr. Patel.
“These new regulations are portraying India in a bad light. We are being laughed at. When, for different types of treatments, foreigners find India to be a safe haven, it is wrong to put restrictions only on surrogacy. In my clinic, three to four cases related to heterogeneous Indian couples are pending. We hope that these rules will be relaxed soon,” she added.
Dr. Duru Shah, Scientific Director, Gynaec World, assisted fertility unit at Kemps Corner in Mumbai, declared, “The guidelines are discriminatory as a single parent from outside India is not allowed to opt for surrogacy whereas the ICMR rules allow an Indian single parent, man or woman, to do so. This move might be seen as an attempt to keep gay couples from coming to India for surrogacy as gay marriages are not legal in our country. We don’t know this for sure though. The reason behind this discrimination is not clear.”
“Guidelines and monitoring are essential,” said Dr. Shah, “But they have to be planned and be announced in a way that does not leave people in limbo.
There are several questions that are unanswered. For instance, we don’t know if we can send back the single parent embryos of foreign nationals that we have with us. There are embryos ready to be transplanted but because of the recent guidelines, we don’t know how to go ahead. We need more clarity, otherwise things would be a mess,” she added.
We are couples too…
In view of the recent Delhi High Court judgment that decriminalizes homosexuality, gay couples are also hoping to get some relief if the surrogacy rules are relaxed.
However, much to their disappointment, Dr. R S Sharma, Deputy Director General (Senior Grade), ICMR said, “Although a Delhi High Court judgment has decriminalized homo sexuality, it has not legalized it. The judgment is related to a solitary case and it is not general one.”
Economics of surrogacy
The commercial surrogacy industry flourished ever since the procedure was recognized in 2002 and now it has an annual turnover of Rs. 200 crore with over 1200 infertility clinics all over the country, including cities like Delhi, Gujarat and Hyderabad. These clinics have been hiring surrogate mothers for nine months and paying them an amount between Rs 2 lakh and Rs 2.50 lakh. They are also provided with accommodation during pregnancy.
Where does Mumbai stand?
In Mumbai, well known hospitals like Dr. L.H Hiranandani, Lilavati, Jaslok, Fortis, and Breach Candy also deal with surrogacy cases. But the number of cases, by and large, are limited.
An official from Fortis Hospital said, “We are handling very few cases of surrogacy of heterogeneous couples, referred to us by clinics.”
It seems that most of the clinics in Mumbai are engaged in counseling of patients. “The proposed ART bill is welcome step since it would regulate the surrogacy cases,” said Dr. Niranjan Chavan, Chief of the Chavan Maternity and Nursing Home, Andheri.
Highlights of the Bill
1) Surrogacy shall not be available to “patients for whom it would normally be possible to carry a baby to term”
2) Surrogacy contracts shall be legally enforceable
3) Married women need their husband’s consent in order to become a surrogate
4) Surrogates shall not undergo embryo transfer more than three times for the same couple. Also, she cannot give more than five live births, including her own children
5) A woman acting as a surrogate mother in India cannot be less than 21 years or over 35 years
6) Egg donor identities shall remain strictly confidential
7) There shall be a detailed accreditation process for fertility clinics and gamete donor banks
8) The Department of Health Research shall establish and manage a “national ART registry”. Besides, national and state advisory boards comprising health department workers, industry representatives, scientists, and other civil society members would be formed
9) The Bill mandates the appointment of a local guardian in case of surrogacy arrangements where the intended couple is staying outside India. This local guardian will be legally obliged to take delivery of the child born of the surrogacy arrangement if the intended couple does not do so.
The legislation disqualifies foreign and domestic gay couples, as well as individuals or couples from countries such as the UK, Canada, Germany, Switzerland, Italy, France and Sweden which prohibit all forms of surrogacy.
ICMR estimates that 15% of couples around the world are infertile, making infertility one of the most prevalent medical problems. Reproductive tourism is a win-win situation for everybody; the people who cannot conceive get a child and a surrogate earns about a tidy sum of money for carrying the baby for nine months.
Crunching the numbers
Surrogacy in India
a) Approximate number of cases of pregnancies handled through surrogate mothers per year
b) Intending parents from all over the world: Australia, UK, Brazil, USA, Canada, Scotland, Israel, Sweden, Ireland, Spain, Japan, Norway, Sweden, Argentina, Ecuador, India, Cuba, Romania, South Africa
c) First surrogacy pregnancy in India: June 23, 1994 (Chennai)
d) Surrogacy legalized by Supreme Court in 2002