Restricting surrogacy to relatives won’t work, doctors say as bill is tabled in Lok Sabha

The bill aims to ban ‘commercial’ surrogacy, or paying a woman to carry a baby for 9 months, and restrict the practice to blood relatives.

A Midwife speaks to young mother at a hospital (Representational Image) | PTI

New Delhi: A lot has changed in one year for the European fertility clinic chain Medicover in India. Back in 2018, Medicover performed at least 10-15 procedures for surrogate pregnancies every month, but in May and June 2019, it hasn’t performed any — its doctors have been sending back infertile couples who come searching for ‘wombs on rent’.

It’s a similar scenario at the Akanksha Hospital & Research Institute in Anand, Gujarat — another top IVF clinic, which has delivered over 1,400 babies through this process. The clinic is still seeing a huge demand for it, with at least 15 to 25 new enquiries per month, but has scrapped a plan to expand its footprint.

Why? Because of the Union government’s proposed move to ban commercial surrogacy in India, so that women who ‘rent’ their wombs stop getting exploited. The Surrogacy (Regulation) Bill, 2019, was approved by the Union cabinet in July, paving the way for its introduction in the ongoing session of Parliament.

On Monday, 15 July, the government introduced the bill in the Lok Sabha.

If the bill becomes a law, the move could dash the hopes of millions of couples, as well as unmarried singles, LGBT persons, divorcees and others. Only couples who have been married for at least five years will be able to opt for the procedure, and the baby will only be allowed to be carried by a blood relative for “selfless reasons”, with no payment involved.

However, while the doors in India appear to be closing, citizens have now started flocking to countries like Kenya, Ukraine, Georgia, and the USA to find surrogates.

Why surrogacy?

Thousands of couples in India every year are diagnosed with a condition where the woman is unable to carry a child for nine months — around 20-30 per cent of all infertility cases require surrogacy.

The reasons for this condition include a missing or weak uterus, a heart condition, or if the woman has survived cancer. Such couples need surrogates to carry the child for the gestation period.

“Around 20-30 per cent of cases with infertility leads to the requirement for surrogacy, which is a strict medical procedure and requires a high level of expertise,” said Sweta Gupta, clinical director, fertility solutions, at Medicover.

However, if the bill is passed, surrogacy births in India are estimated to fall by 99.9 per cent.

“From the present estimated 5,000 -6,000 surrogacy births in India every year, the number will drop to just 5-6 births,” said Gaurav Wankhede, founder and director at Become Parents, a surrogacy agency based in Mumbai.

 

Legal wrangle

It was 2016 when India began contemplating a law to ban commercial surrogacy, with the idea being to protect poor and vulnerable women who were renting their wombs. But the seeds were sown seven years earlier, when the Law Commission of India, in its 288th report, suggested the legalisation of altruistic surrogacy and banning commercial surrogacy — the being whether the surrogate is paid or not.

The report, titled ‘Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy’, had listed several legal and moral issues associated with surrogacy before suggesting that commercial surrogacy be prohibited.

Years later, a PIL filed by advocate Jayashree Wad brought the argument to the Supreme Court. Wad told ThePrint that her PIL took shape over two years, through several magazine and research articles. “I also did it because my mother always wanted me to fight for the cause of women as a lawyer,” she said.

Wad’s PIL contended that the process of commercial surrogacy in India was “not merely opposed to public policy but it is unethical and ought not to be permitted as the same violates the dignity of Indian women”.

She also asserted that the “human embryo is human life in miniature form” and hence, “permitting trade in the same amounts to trafficking in human beings”.

The petition had specifically sought declaration of commercial surrogacy contracts as being “opposed to public policy, unethical and violative of Indian womanhood under Article 21 of the Constitution of India”.

Notably, Wad’s petition had also claimed that the strongest incentive for foreigners to travel to India for babies through surrogacy was most likely the “relatively” low costs involved in the process.

“The fees for surrogates are reported to range from $2,500 to $7,000. The total costs can be anything between $10,000 and $35,000. This is a lot less than what intended parents pay in the United States, where rates fluctuate between $59,000 and $80,000,” the petition said.

The PIL further contended that most Indian surrogates are paid in instalments over a period of 9 months. “If they are unable to conceive, they are often not paid at all and sometimes they must forfeit a portion of their fee if they miscarry,” it stated.

However, Indian doctors say surrogates are paid much more than what they would get in developed countries like the US. “In India, the average compensation paid to surrogates is around Rs 5 lakh, whereas the per capita income is around Rs 1 lakh per annum. The average compensation for an American surrogate is $30,000 while the per capita income is $60,000,” said Wankhede.

And yet, Wad has stuck to her stance, asserting that between banning and regulating commercial surrogacy, banning is the “lesser of two evils”.

“In India, you cannot regulate anything. Even if there is a law in place, the tendency of Indians is to first find how to avoid it. So, things won’t change unless and until there’s a complete ban, because there are always loopholes and arguments. The complete ban is suggested only after considering the nature of people in India,” she said.

Govt’s stance

In October 2015, during a hearing on Wad’s petition, the government had also submitted an affidavit supporting a ban.

In the same month, the Directorate General of Foreign Trade restricted the import of human embryos, limiting them to research purposes based on the guidelines of the Department of Health Research. Earlier, import of human embryos for artificial reproduction was permitted by a 2013 notification of the commerce ministry.

The withdrawal of this notification in effect disallowed foreign couples from availing surrogacy services in India.

The last order on Wad’s PIL came on 29 November 2016, when the Supreme Court was informed that the Surrogacy (Regulation) Bill, 2016, had been introduced in the Lok Sabha. The matter was adjourned in the light of pendency of the bill.

 

What did the 2016 bill propose?

Much like the PIL, the 2016 bill acknowledged that the lack of legislation to regulate surrogacy led to “incidents of unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and import of human embryos and gametes”.

The bill suggested that surrogacy in India will only be possible if a couple can arrange for ‘altruistic’ surrogacy, where the surrogate should be a blood relative.

It also restricted surrogacy to Indian married couples only, excluding homosexuals, live-in couples as well as single people who would want to have a child that way. The bill excluded couples who have children, whether biological, adopted or through surrogacy as well.

Any violation of the law would be punishable with a minimum imprisonment of ten years and a maximum fine of Rs 10 lakh.

The bill was passed by the Lok Sabha in December 2018, but it lapsed after it could not be passed in the Rajya Sabha during the tenure of the 16th Lok Sabha.

The bill introduced in Parliament by the government Monday also provides for constitution of surrogacy boards at national and state levels, and says the intending couples should not abandon such a child under any condition.

A huge market

According to industry estimates, the surrogacy market in India was worth $2.3 billion in 2016. However, the market shrank considerably after the bill was first proposed.

IVF clinics earn around 20 to 70 per cent of their total revenues from surrogacy procedures; the cost of the procedure is between Rs 12-20 lakh, depending on variables such as the number of IVF cycles required and egg donation involved.

Dr Nayana Patel from Akanksha Hospital said the procedure, which costs Rs 12-14 lakh at her hospital, accounts for 30 per cent of its total revenue.

The fees include charges for finding the surrogate from an agency, testing her for medical conditions, running IVF cycles on the couple, and providing food, supplements and accommodation to the surrogate until the baby is delivered.

Appeals for regulation, not ban

Doctors have argued in favour of regulation rather than a ban.

“Commercial surrogacy should be renamed ‘compensated surrogacy’. It should be regulated and be made available to genuinely indicated couples, for whom it’s the only method to have a biological child of their own, rather than putting a blanket ban for everyone,” said Patel, who has been invited to deliver TED Talks and also appeared on The Oprah Winfrey Show.

Doctors say there have been several cases where close blood relatives — ‘altruistic surrogates’ — turned down the requests after a single visit to the clinic.

“We have seen the hopes of these couples dying in front of us,” said Medicover’s Gupta.

Prospective parents may also not want to disclose to their relatives or society in general that they are going in for surrogacy, Patel pointed out.

Dr Deepthi Bawa, consultant, reproductive medicine and IVF at the Bengaluru-based Aster CMI Hospital, also spoke of the pressures an Indian woman faces on such a subject.

“In a conservative society like India, hardly any woman will agree to carry someone else’s baby. Most women are anyway bound by the decisions of their husbands and in-laws, who won’t allow them to be a surrogate for someone like her sister, for example,” Bawa said.

Surrogacy ‘destinations’

The uncertainty over surrogacy in India is driving couples to seek wombs abroad, with Patel saying they have to spend “five times more money for the same procedure”.

The top two ‘surrogacy destinations’ are Kenya and Ukraine, where the cost ranges from Rs 25 to 35 lakh, while in the USA and Canada, the cost jumps to around Rs 60 to 80 lakh. The costs do not include the couple’s frequent travel and accommodation.

“Moreover, the couples cannot immediately trust the agency or doctor as easily as they could have done in India,” said Wankhede.