Society Regulating
the Surrogacy Boom
by 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. "Such people
can take the help of surrogates, who carry their child in the uterus and
then hand it over to the genetic parents, post-delivery," she says.
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
gynecologist / obstetrician, "it's now the turn of babies to be
outsourced from India. In these times of globalization and market-driven
economies, there's considerable demand for this service."
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
colonization."
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 fertilization (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 on a priority basis. 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 and huge
amounts of cash are involved, perhaps 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.
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