India's surrogacy industry under scrutiny

India hopes a new law will help regulate the country's surrogacy services and stop people being exploited by 'rent-a-womb' medical tourism.

Over the past decade, India has become a popular medical tourism destination and experts say hundreds of surrogate births took place there last year.

But there will soon be a law to govern reproductive rights and surrogacy in India.

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COMMERCIAL surrogacy in India, dubbed as the “surrogacy capital of the world”, is projected to become a whopping US$2.3bil (RM7bil) industry by 2012, according to the Confederation of Indian Industry.

However, despite the gargantuan size of the enterprise, surrogacy-related fertility tourism has long been fraught with ethical and human rights concerns in the country. Although the Indian Supreme Court legalised commercial surrogacy in India in 2002, there are still no clear laws governing such transactions in the country.

What passes off as “law” is a skeletal, 126-page document issued by the Indian Council of Medical Research (ICMR) in 2005, which lays down the National Guidelines for Accreditation, Supervision and Regulation of Assisted Reproductive Technologies Clinics in India.

However, experts point out that these guidelines are legally non-binding, as they have not yet been ratified by the Indian Parliament. Besides, the current rules are ambiguous about vital issues like the rights of the surrogate, their minimum age, details about the contracts, informed consent and adoption requirements. This opacity often leads to legal ambivalence for would-be parents or exploitation of poor Indian women who rent out their wombs to earn money.

Driving the demand for Indian surrogates amongst infertile couples in industrialised nations, are the country’s unique advantages as a low-cost surrogacy destination, its lax laws, mushrooming Assisted Reproductive Techniques (ART) clinics and the easy availability of surrogate mothers.

The Bill has incorporated several landmark stipulations. For instance, no surrogate mother shall undergo embryo transfer more than three times for the same couple. If a surrogate mother is married, the consent of her spouse is mandatory. Only Indian citizens can be considered for surrogacy. No ART bank or clinic can send an Indian citizen for surrogacy abroad. Strict confidentiality has to be maintained about the donor's identity.

Dr Gautam Allahbadia, medical director, The Rotunda Centre for Human Reproduction in Mumbai, has told the bill regulates the industry, but also makes it easier for legitimate surrogacy arrangements.

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"Surrogacy will be easiest to do in India," he said.

"Once it becomes law, there will be absolutely no legal tangles. A couple can take their baby away with a birth certificate that will carry the genetic parents' names, so all these rules, guidelines once they become a law, means that everything will become very easy."

Most Indian IVF clinics also have a strong Internet presence which helps them attract overseas patients who have to grapple with long waiting periods for such treatments, especially in the West.

Apart from a sizeable spurt in the demand for Indian surrogate babies from overseas wannabe parents, there’s plenty of domestic demand as well as India is home to 14% of the world’s estimated 80 million infertile couples.

IVF surrogacy India: the business of making babies, India to regulate 'rent-a-womb' surrogacy trade

According to estimates, Indian clinics charge patients between US$10,000 and US$28,000 (RM30,400 and RM85,120) for the complete package including fertilisation, the surrogate’s fee and delivery of the

baby at a hospital, airfare, medical procedures and hotels. This all-encompassing arrangement still works out to a third of the price a parent would have to cough up in the West.

However, the trade in India also breeds unscrupulous middlemen who entice and push marginalised women into surrogate motherhood. There’s no protection against the misuse of a surrogate child for purposes of terrorism, prostitution or unethical genetic engineering research.

Fortunately, all this may soon change. The Indian Parliament has recently cleared the Assisted Reproductive Technologies Regulation Bill 2010, which contains several landmark proposals to streamline surrogacy practices in the country. The Bill, which will become a law as soon as it gets the Law Ministry’s nod, proposes path-breaking changes in the way surrogacy transactions are conducted in India.

For one, the Bill proposes that a candidate for a surrogate arrangement should not be less than 21 or more than 35 years of age. This is a welcome step as earlier, many teenaged women or those above 40 were offering their services for surrogacy purposes for monetary reasons.

The Bill also suggests that no Indian surrogate be permitted to give more than five live births, including her own children. If implemented properly, this provision will hopefully check the common malpractice amongst Indian surrogates that compromises the health of both the mother and newborn.

The proposed legislation also states that “no surrogate mother shall undergo embryo transfers for more than three times for the same couple”. Also, if a surrogate mother is married, the consent of her spouse will be mandatory. The Bill stresses that only Indian citizens ought to be considered for surrogacy. Nor can any ART bank or clinic send an Indian citizen for surrogacy abroad. Over and above, clinics will have to keep the donors’ identity strictly confidential.

Another important provision in the Bill is that the surrogate mother will not “harm the foetus during pregnancy or after birth”. As parents, the baby’s birth certificate will bear the names of the individuals who had commissioned the surrogacy and these commissioning parents will have to accept the child’s custody irrespective of any congenital abnormality.

The newly proposed regulations have gladdened many hearts.

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.”

This means the only option left open to them is to “adopt” the baby – which is a cumbersome process in India.

The Bill’s other proposals include provisions for live-in couples who can go for IVF only if the woman cannot biologically bear a child, or it is too risky for her. No ART clinic shall consider conception by surrogacy for patients for whom it may normally be possible to carry a baby to term. A doctor will have to first certify that a conception can trigger undesirable medical implications.

Hopefully, the ART Regulation Bill will go a long way in curbing unfair trade practices and protecting the rights of women once it becomes a law.

In the U.S., "you can buy sperm, you can buy eggs -- that's really the market that has exploded -- you can rent wombs and you can increasingly put together these complicated package deals, where you buy the sperm from one source, the egg from another and the surrogate mother."

Many US states have their own state laws written regarding the legality of surrogate parenting. It is most common for surrogates to reside in Florida and California due to the surrogacy-accommodating laws in these states.Surrogate mothers in India cost considerably lower (about fourth of what it would cost in the United States). The cost of surrogacy in the United States is anywhere within $50,000 to $100,000.

In Canada, Commercial surrogacy arrangements were prohibited in 2004 by the Assisted Human Reproduction Act.In all states in Australia and the Australian Capital Territory arranging commercial surrogacy is a criminal offence.

Surrogate Mothers in India - Costs, Laws, Medical Facilities & Culture:

Surrogacy clinics in India & surrogate programs in India are becoming popular. The reason is the low cost surrogate mothers in India, trained medical professionals who manage the surrogacy programs and ready availability of surrogate mothers.

Surrogacy India Bill seeks to regulate wombs-for-rent: Few rules govern booming baby business: Debate around overseas surrogacy

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