Steve Leider writes:
The Indian Parliament will be considering legislation to regulate the practice of commercial surrogacy in India. There are approximately 350 clinics overseeing an estimated 1500 pregnancy attempts annually, one third of which involve foreigners, making up a $445 million industry. Surrogacy in India is much cheaper than in the United States: “The entire process costs customers around $23,000 — less than one-fifth of the going rate in the U.S. — of which the surrogate mother usually receives about $7,500 in installments.”
Surrogacy in India has been largely unregulated since being legalized in 2002 - the Indian Council of Medical Research issued guidelines in 2005, but IVF clinics often establish their own policies. The draft legislation proposes several substantial restrictions:
“Exploitation of surrogates by infertile couples, and vice versa, has been a serious concern ever since in-vitro fertilization (IVF) started in India. ‘But this will put an end to it. Infertile couples don't have to go hunting for surrogate mothers. The bank will help them get one. As a result, the couple will have all information about her background and medical history before hiring her womb,’ said Dr R S Sharma, deputy director general of Indian Council of Medical Research (ICMR), who has been involved in the process of drafting the Bill.”
“These banks - both private and government - will be accredited by state boards. The board will also have a registration authority which will maintain a list of all IVF centres and monitor their functioning. ‘So far we didn't have any law regarding surrogacy. This is a step towards legalizing surrogacy and fixing responsibilities of the parties involved in the process," said Dr Sharma’”….
“These ART [Assisted Reproductive Technology] banks will be independent of IVF clinics. Oocyte (unfertilized egg) and semen preservation will be their main focus. ‘In the past few years, IVF clinics have mushroomed in the country. There is no check on their practices. There is no quality check on the semen and oocytes preserved by them and offered to infertile couples. These banks will have a proper system, where every minor detail about gametes and surrogates will be documented,’ said a senior doctor at AIIMS who too is involved in the drafting of the bill.”
“Experts say that once a bank is in place, it will maintain a database of surrogate mothers. A woman is allowed five live births, including her own children. ‘It has been seen that poor women sell their womb several times for money. This has a damaging effect on their body. The new bill clearly states that a woman can't have more than five live births and donate oocytes more than six times in her life,’ said Dr Sharma.”….
“The bill proposes stringent rules for foreigners looking for surrogate mothers. It will be mandatory for foreign couples to submit two certificates - one on their country's policy on surrogacy and the other stating that the child born to the surrogate mother will get their country's citizenship. "They also have to nominate a local guardian, who will take care of the surrogate during the gestation period," said Dr Sharma.”
Prominent IVF doctors like Dr. Nayna Patel (who was featured on the Oprah Winfrey Show in 2007) have objected to the new regulations:
It's a suggestion that has caused a stir in the medical community. Patel insists that she will not accept a surrogate sent to Akanksha unless she herself is permitted to perform medical and background checks. She maintains that ART banks will not have enough experience to determine whether a woman is fit for surrogacy, let alone replicate the personal bonds she cultivates with her surrogates. ‘The trust they have with me is what makes the whole thing secure and safe,’ she says. ‘And at the end, when they want to buy a house or a piece of land for farming, we get them the best deal. With this bill, we will not know what they are going to do with such a big amount of money.’”
Two recent court cases highlighted the need for increased regulation. In 2008 a Japanese couple divorced during the surrogacy:
“The husband still wanted to raise Manji, but his ex-wife did not. The father found himself in a catch-22. India requires that a child be legally adopted before leaving the country, but bars single men from adopting. Manji's father was denied travel documents for the baby. The situation was widely covered in Indian and global media, and grew into a legal and diplomatic crisis. Manji was eventually permitted to leave for Japan [after custody was granted to the child’s grandmother].”
A German couple also experienced legal problems:
“Since the day they were delivered more than two years ago, twin toddlers Nikolas and Leonard Balaz have been stateless and stranded in India. Their parents are German nationals, but the woman to whom the babies were born is a 20-something Indian surrogate from Gujarat. The boys were refused German passports because the country does not recognize surrogacy as a legitimate means of parenthood. And India doesn't typically confer citizenship on surrogate-born children conceived by foreigners. Last week, Germany relented, issuing the Balazes travel visas, and the entire family is finally going home.”
Surrogacy is also subject to substantial disapproval within India, being criticized as the "commoditisation of motherhood" and “a peculiar form of prostitution”. Surrogates often hide their pregnancy by moving away from friends and family temporarily: "Otherwise, we'll be treated like social pariahs… This isn't a respectable thing to do in our society." Others say it is their husbands’ baby, and then after giving the baby to the intended parents say the newborn has died. The Catholic Church has also opposed the new law for legitimizing surrogacy:
“An Oriental-rite Catholic Church in Kerala says it plans to try and torpedo an upcoming bill to legalize surrogacy in India, which it says will destabilize a family system already struggling ‘under Western influence.’ ‘The Church will take all possible steps to stop the bill and will alert elected state representatives about the impact it will have on family life,’ Syro-Malabar Church spokesman Father Paul Thelakat told ucanews.com on June 24. ‘We have been teaching our faithful about moral living, so if the government enacts a bill which is against our teachings, how can we sit idle,’ the priest said.”