Surrogacy in India generally hits the headlines only when celebrity parents desire to have a child through a surrogate mother. But for the ordinary couple in India, or for a couple travelling to India for assisted reproduction, it could well turn out to be a difficult, confusing and even risky procedure, even though it has been permitted by the Indian Government since 2002.
Commercial surrogacy in India is merely governed by a set of guidelines issued by the Indian Council for Medical Research; they are not enforced and IVF/ART (in vitro fertilisation/assisted reproductive technology) clinics are not legally bound to follow them. There is no stipulated ‘law’ for breach of contract by either the clinic, the commissioning parents or the surrogate mother.
It’s not unusual to read about surrogate babies in legal limbo or being stateless. Search for such keywords and numerous articles on such scenarios will come up.
Babies born to Indian surrogates have been denied citizenship and entry by home-countries of commissioning parents, which do not recognise surrogacy arrangements or which only recognise altruistic surrogacy. There have also been such cases where there was no medical proof that at least one commissioning parent has a genetic relationship with the child.
The fate of children with birth deformities or abnormalities born to Indian surrogates is not clear – in a recent case, the commissioning parents who were Indian citizens, refused to take the child with them, citing a breach of contract.
The fate of children born to Indian surrogates, if the commissioning parents’ divorce mid-procedure or if a parent passes away, is also unclear. For the child to be given a passport, both parents must be present.
But while such circumstantial ambiguities persist, on the medical side, with internationally trained Indian doctors, state-of-the-art facilities, high end diagnostics, thoroughly screened surrogates and qualified staff, the multi-million dollar Indian surrogacy industry could well turn out to be the largest in the world. But, the fact remains that it is still unlegislated and largely unregulated, despite being judicially recognised.
The failure to table the draft Assisted Reproductive Technologies (ART) 2010 in Parliament and get it enacted into a law has resulted in rampant ambiguities that have both human and commercial implications.
How big is surrogacy?
It’s still not clear how big the Indian surrogacy market officially is, how many surrogate children are birthed each year or how many ART clinics there are. Birthing a Market, A Study on Commercial Surrogacy (2012) by Delhi-based Sama - a resource group for women and health – was supported by the United Nations Population Fund India; it quotes figures from the National Commission for Women to peg the number of clinics in India offering surrogacy services at about 3000. There has, however, been no confirmation from the government on these figures.
The Confederation of Indian Industry (CII) figures identify surrogacy as a 2.3 billion dollar industry annually. The CII study estimated that 10,000 foreign couples visit India for reproductive services. It’s not just foreign couples alone but the demand for surrogates from Indian couples is also growing. Estimates by doctors indicate that up to 40 per cent of their clients are foreign couples/Indians living abroad, implying that a significant proportion of clients are resident Indians.
Leading fertility expert Dr Firuza R Parikh, Director - Department of Assisted Reproduction and Genetics at the Jaslok Hospital and Research Centre in Mumbai, points out that Indian IVF Clinics have good results, which create huge potential for expansion.
‘’India can become a very big hub for surrogacy if the ART bill gets tabled in Parliament and if international and Indian clients have clarity on the issue.’’ She adds that transparency of all processes and having a law rather than a bill, would help all concerned. ‘’As we emerge as a hub for surrogacy, there may be further refinements in the ART bill, but delays are not helping, ’’ adds Parikh.
She estimates that around 2500 to 4000 surrogacy cycles per year are performed in India. One successful cycle of surrogacy in India can cost anywhere between Rs 11-20 lakh (between 25-35,000 USD). In smaller cities, it can be cheaper.
The quandary of commissioning parents
But while theoretically the potential of the industry remains bright, confusion prevails with successive draft laws on surrogacy having been revised by the Indian government several times over. In the absence of any legislation, many doctors still follow the 2005 ICMR guidelines.
In 2012, visa norms for surrogacy were suddenly changed and the ministry of home affairs imposed visa restrictions for single parents, same-sex and unmarried couples, and those married for less than two years. Many foreign nationals, who view India as a primary destination for fertility treatments and surrocacy, are unclear on the way ahead – do they follow the Ministry of External Affairs’ 2012 surrogacy-visa restrictions or the earlier draft ART bills from the Ministry of Health and Family Welfare? The fate of surrogacies commissioned before the 2012 MEA restrictions is also not clear.
The visa checklist for surrogacy in India is available on the GOI website http://boi.gov.in/content/surrogacy. The new directives state:
‘A letter from the embassy of the foreign country in India or the Foreign Ministry of the country should be enclosed with the visa application stating clearly that the country recognizes surrogacy and the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy. The couple will have to furnish an undertaking that they would take care of the child/children born through surrogacy, (and) the treatment should be done only at one of the registered Assisted Reproductive Treatment (ART) clinics recognized by Indian Council of Medical Research.’
Some clinics are even being pulled up for allowing foreign commissioning parents to travel on tourist visas, while the guidelines clearly state that a medical visa is mandatory for the process, in addition to fulfilment of all other conditions. Overseas Citizens of India and Person of Indian Origin card holders don’t need a visa, but will need to ensure that all other conditions laid down in the instructions are fulfilled.
With no law in place and the entire process being regulated by “guidelines” and “directives” uncertainty creeps in at every stage, making it harrowing for the parents. However, with a new government at the Centre, there is renewed hope that there will be clarity and finality on this issue in the winter session of parliament.
A call for clarity
Doctors and lawyers worry that the ambiguities in the draft bill will scare future parents away. Many of the proposed modifications are not going down too well with activists who want better rights for the surrogate mother, doctors who want clarity and parents who don’t want to be discriminated against.
An apex body of IVF Clinics is even looking to petition the home ministry on several points in the draft bill which they think may hurt all parties - the industry, surrogates and parents - and create more bureaucratic hurdles. For instance, one point talks of couples commissioning surrogacy only with ART clinics recognised/registered by the Indian Council of Medical Research, but doctors point out that the registration process itself is still at the initial stages of formulation for a country that has thousands of clinics; making this mandatory at this juncture may not be practical.
Advocacy groups worry that the draft bill ignores monitoring of third party agents who play a key role in arranging surrogates. These include surrogacy agencies, surrogacy home operators, travel organisations which promote and offer surrogacy etc.
Dr Nayna Patel, considered a frontrunner of the Indian surrogacy movement, heads the Akanksha Infertility Clinic in Gujarat, where 600 plus surrogate babies have been born. Not only does she see the industry growing, she is gearing up for it and is building what is being dubbed as the world’s first multi-million dollar ‘baby factory’ in Anand, Gujarat, which will be a one-stop-destination for surrogacy.
Patel predicts 12 percent growth in the sector per year. ‘’But my concern is the agency part. I would prefer to take care of my surrogate directly. An agency coming into the picture will make it commercial. I want to be very sure that my surrogate gets what she has been promised and more. I don’t want agents to siphon off her money,” she says of a section in the draft bill, which talks of IVF clinics/ART banks having no role to play in the compensation for surrogacy, which is to be a private negotiation between the surrogate mother and the commissioning parents, facilitated through a surrogacy agency or operator.
With the surrogacy market expected to grow, the rights of the surrogate mother also need to be protected, points out a social worker, who was a former surrogate. ‘’Surrogate mothers are losing out a fair bit in the whole process. The bill must be in the best interests of the woman carrying the child - the draft rules on payment to the surrogate are not strong enough, it does not mandate a minimum amount. The draft bill also does not set any standards which will give rights to the surrogate on informed consent, terms and conditions of the contract, post delivery care,’’ she says.
What parents should know
Given such a scenario, therefore, chances are that if you are planning surrogacy, or have just entered into a surrogacy contract, or are mid-way through a procedure, the rules can change overnight. This could mean that your child may not be allowed out of the country, not be granted citizenship or not be recognised as legally yours. However, it is possible to minimise risks through procedural safeguards and awareness of governmental directives.
The latest version of the draft bill imposes numerous restrictions with respect to the age of the surrogate mother, compensation, registration of clinics, donor programmes, sexual orientation and marital status of the parent(s).
Hari G Ramasubramanian, Chief Consultant - Indian Surrogacy Law Centre, Chennai, says the firm handles more than 50 cases annually and does not feel that India presents any special risks, compared to other countries where surrogacy is legal.
“The most common issue we face is that India does not grant nationality to a child born to a foreigner, so citizenship can prove tricky at times, if it has not been legally audited prior to the birth of the child,’’ he says.
In the absence of legislation, a strong surrogacy agreement is vital. The Indian Council of Medical Research has issued consent forms which the clinic can use in a surrogacy agreement. IVF centres often use their own legal teams, or parents bring in their own lawyers to draw up contracts.
‘’The rights, duties and responsibilities of doctors, parents and surrogates are governed by surrogacy agreements and lawyers assist the parties to arrive at an arrangement. They also ensure harmonious transfer of parental rights as per the countries of origin of the parents,’’ says Ramasubramanian. It is imperative that these agreements are meticulously drafted, covering all possible scenarios, that the IVF or ART clinic in question is registered and that the fine print of the ART draft bill and the new visa norms are understood thoroughly. All this takes time and is procedure-driven.
To avoid possible medical risks and adverse outcomes of commercial surrogacy, couples are advised to see if they qualify for surrogacy to begin with. Parikh says, ‘’any obstetric procedure will carry a medical risk for the mother and the baby; these can be dealt with efficiently by the obstetrician and paediatrician. An understanding of the contract by both the surrogate mother and the intended parents would streamline many procedures and reduce adverse outcomes. The most feared outcome, of course, is the rare scenario in which the surrogate dies.’’
Frozen embryo import
Even as the discourse over law and guidelines plays out, the Ministry of Commerce and Industry (GOI) has allowed the import of frozen human embryos by both foreign nationals and Indian couples settled abroad, for infertility treatment or surrogacy. The Notification No.52 (RE – 2013)/2009-2014, dated 2 December, 2013, issued by the Director General of Foreign Trade states, “Import of Human Embryo will be free subject to a ‘No Objection Certificate’ from Indian Council of Medical Research (ICMR).”
The NOC will be issued only if all requirements are submitted and cleared; these include a long list of certified documents from the foreign clinic doing the embryo procedure, registration details of the ART clinic in India, the marriage details of the couple etc. However, this will, in no way, offset the ban on single, same-sex and unmarried parents, as they will still need to follow legal procedures to take their baby out of the country.
‘’If the baby is born here even with an imported frozen embryo, the couple will still have to get medical visas, FRRO permission and the required documentation from their country and India to take the child home,’’ points out Dr. Naina Patel.
Interestingly, in all of this, India’s loss has been Thailand’s gain. The latter has not imposed any restrictions on same sex couples or single parents commissioning surrogacies. Fertility doctors in India say that this, coupled with the prevailing ambiguities, comes at a high cost to Indian industry, with losses running into millions of dollars and surrogates losing out on the chance to earn.
THE ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION) BILL - 2010 (DRAFT)