Surrogacy in India: Strong Demand, Weak Laws

Chapter 9
Surrogacy in India: Strong Demand, Weak Laws

The world looks upon surrogacy as a product of modern medical science but various incidents in Indian mythology show that the concept of surrogacy has been a part of Indian culture since the very beginning. The Bhagavata Purana, completed in the ninth century, narrates the story of Lord Balrama who was saved in his mother’s womb by the act of transferring the embryo from his biological mother Devaki to a surrogate Rohini, Devaki’s sister. This was done with the blessings of Vishnu, the lord of creation, to protect the child from the wrath of his maternal uncle Kansa, who had sworn to kill the child at birth.¹ In the Sanskrit epic Mahabharata, King Vichitravirja remained without heir to continue the Kuru dynasty. At the request of his mother, his half-brother Vyasa agreed to be a surrogate father and shared a bed with the two widows of Vichitravirja leading to the birth of the Princes Dhritarashtra, Pandu and Vidhur.² These early examples show that rather than frowning upon surrogacy, Indian mythology saw it as a way to protect or create a family in exceptional circumstances.

India has been at the forefront of modern developments of surrogacy and Assisted Reproductive Technology (ART). The world’s second IVF (in vitro fertilisation) baby Kanupriya alias Durga was apparently born in Kolkata on 3 October 1978, about two months after Louise Joy Brown, the world’s first IVF baby, was born in Great Britain.³ The era of commercial surrogacy began in India in 1997, when a woman reportedly agreed to act as a ‘gestational carrier’⁴ and used the payment she received to finance medical treatment for her paralysed husband.⁵ Since then, commercial gestational surrogacy has become a feature of reproductive technology in India. While dependable statistics are hard to come by, the number of surrogacies has risen sharply over the last decade and it is now estimated that about 2,000 children are born via surrogacy in India each year.⁶

Modern medical infrastructure, low cost, favourable laws and easy availability of surrogates are the pull factors which have contributed to India becoming ‘the world’s top destination for commercial surrogacy’.⁷ In contrast to most other jurisdictions (with the notable exceptions of Georgia, Nepal, Russia, Ukraine, and some states in the US and Mexico) India has not erected hurdles to commercial surrogacy. The practice gained validity in 2002, when the Indian Council for Medical Research issued non-binding guidelines, which envisaged that intended parents provide monetary compensation to the surrogate mother for her services.⁸ Importantly, a 2008 decision of the Supreme Court of India acknowledged the legality of commercial surrogacy arrangements in India.⁹

This chapter examines the legal regulation of surrogacy in India and how it affects clinics, medical practitioners and the human rights of surrogates and intended parents, especially in cases involving foreigners. Section II begins by providing background information on modern surrogacy practice in India, while section III considers the present laws governing surrogacy in India. Section IV explores the particular problems posed by international surrogacy arrangements, and section V discusses the Draft Assisted Reproductive Technology (Regulation) Bill 2010, currently under consideration. Finally, section VI touches upon the social impact, human rights and ethical implications of surrogacy in India and how they should inform the debate over future regulation.

The rise of ART, including surrogacy, should be considered in the context of India’s efforts to develop a thriving ‘medical tourism’ sector. Since 2003, the Indian Government has adopted various measures to promote the country as a ‘global health destination’,¹⁰ including infrastructural improvements, special incentives for hospitals that treat foreign patients and the introduction of a medical visa scheme.¹¹ As a result, the number of persons coming to India for medical services increased from an estimated 180,000 in 2005 to 650,000 in 2009, and India now ranks second in the world (after Thailand) in the number of foreign patients treated.¹² During these years, the reproductive segment of the Indian cross-border medical services market also showed phenomenal growth. As a result of the immense demand for fertility services, the number of clinics providing ART treatment has grown prolifically and is now estimated to be around 500,¹³ or even 1,000.¹⁴

Surrogates in India usually belong to the poorer sections of society and offer their services at relatively low cost, compared to elsewhere. It is reported that the fees for a surrogate in India are somewhere between US$2,500 and US$7,000,¹⁵ generally paid in instalments over nine months, whereas the compensation for surrogates in the US, the other major centre of commercial surrogacy, tends to be between US$14,000 and US$30,000,¹⁶ plus significant other costs. These cost advantages, combined with the lower cost of medical treatment, have contributed to the majority of surrogacies in India now being commissioned by foreigners or non-resident Indians.¹⁷

Surrogacy in India is governed predominantly through private agreements between the parties, flanked by ethics rules and guidelines for ART, customary social practices within the community, and occasional judicial decisions that seek to resolve disputes by reference to principles of ordinary contract law, family law, citizenship law, as well as various forms of draft legislation and law commission reports.

Fertility clinics in India are mainly in the private sector and the increasing number of surrogacy cases provide a financial boon to these clinics and a livelihood to all those who are associated with them. However, there are concerns that the profit interests of fertility service providers have been allowed to outweigh public health interests, ethical concerns and human rights norms. Some critics oppose commercial surrogacy on principle because they view it as denigrating motherhood by transforming it into a commodity and undermining the dignity of women.¹⁸ Other observers concede that commercial surrogacy can create a win-win situation for intended parents as well as surrogates.¹⁹ It allows commissioning couples or individuals to enjoy the otherwise unattainable privilege of parenthood with genetic link to the child. It provides surrogate mothers with a means of lifting their families from poverty as the fee that is equivalent to 5 or even 15 times their, or their husband’s, regular annual income.²⁰

Those who regard commercial surrogacy as morally acceptable focus their concern on the fact that India has left it largely unregulated. This legal vacuum opens the door to exploitation of surrogates and, to a lesser degree, of prospective parents. International surrogacy cases bring together wealthy clients from predominantly Western countries and Indian women who have often received little education and live in economic strife. Indian surrogates often hail from rural areas surrounding the major centres of surrogacy and become aware of surrogacy through word of mouth or recruitment agents.²¹ They are generally married and have children of their own.²² Their husbands are closely involved in the decision-making process because clinics require them to consent to the surrogacy.

Surrogates as well as prospective parents are likely to regard surrogacy as a ‘last resort’ to change their current circumstances, which makes them vulnerable and susceptible to taking risks that they may not fully appreciate. In this exceptional situation, they give themselves into the hands of ART clinics and other intermediaries who not only control the process but also pursue commercial interests of their own. The medical processes involved in surrogacy are complex and the prospects inherently uncertain, which means that there is a heightened responsibility on the clinics to explain the risks and repercussions fully and honestly. Yet, surrogates and prospective parents do not often seek independent advice, neither medical nor legal, before proceeding, and surrender themselves to intermediaries and clinics. As if this complex web of relationships, needs and interests was not fraught enough, there is of course another vulnerable group to protect: any regulation of surrogacy also needs to respect and protect the rights and welfare of the children born through surrogacy. A significant concern with Indian surrogacy practice is that it maintains the anonymity of egg and sperm donors, making it impossible for children born through surrogacy to trace their genetic heritage, which may negatively impact on their sense of identity.

Surrogacy arrangements in India have a number of features that distinguish them from the practice in other countries that allow commercial surrogacy. These include language, culture and class barriers that make it uncommon for surrogates and prospective parents, particularly in inter-country cases, to have sustained contact prior and after birth, whereas surrogates in the US and Israel often maintain various degrees of involvement in the children’s lives and their families after giving birth.²³ While these barriers between prospective parents and surrogates make it difficult for participants to create a personal relationship with one another, they do not make it impossible to interact with care, empathy and mutual respect.²⁴ Most Indian surrogates will keep the arrangement a secret from their wider family and community because they fear stigma arising out of ignorance that surrogacy does not involve sexual contact.²⁵ Many surrogates therefore prefer to stay in accommodation close to the clinics and away from neighbours or in-laws.²⁶ Living at surrogate hostels for the duration of the pregnancy is also encouraged by the clinics because it makes it easier to ensure that the surrogates have an appropriate diet, do not engage in strenuous work and are within easy reach for medical check-ups.²⁷ In these hostels, the women live and interact with other surrogates, and can be visited by their immediate family.

Financial reward is the primary motivation for most Indian surrogates, who often report a compelling economic need, but in some cases also a desire for a better home or better education for their children, as their aims.²⁸ Surrogacy in India has been analysed as a form of work,²⁹ yet it is an ‘emotional labour’ that makes unique demands, forges complex interpersonal relationships, and blends financial and altruistic considerations.³⁰ Despite the bond that surrogates develop with the growing foetus, instances where surrogates do not wish to part with a child they deliver for another couple are rare. This is partly due to the fact that they have no genetic link to the child they gestate and almost invariably already have a family of their own, but also that Indian law upholds clauses commonly contained in surrogacy contracts under which they relinquish any rights to the child from the outset.

III. Present Laws Governing Surrogacy in India

In 2002, the Secretary of Family Welfare released a draft of ‘National Guidelines for accreditation, supervision and regulation of ART clinics in India’.³¹ It was drafted by a committee formed by the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS). The document acknowledged that the increasing demand for ART in India had resulted in a mushrooming of fertility clinics, and that ‘repulsive tales’ of malpractice had emerged about some operators.³² The guidelines aimed to fill the lacuna left by the absence of specific regulation on accreditation and supervision of fertility clinics. Following several years of discussion and debate, primarily among the ICMR, the NAMS, practitioners of ART and the Ministry of Health and Family Welfare, as well as external consultations, the ‘National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India’ were published in 2005 (‘the 2005 Guidelines’).

The 2005 Guidelines establish a procedure for state governmental bodies to oversee all matters relating to the accreditation, supervision, and regulation of ART clinics. They also lay down specific standards in relation to technical equipment and responsibilities of the clinic, the personal expertise of the clinic professionals, and the procedures and protocols to be followed. In relation to the role and responsibilities of clinics providing surrogacy services, the 2005 Guidelines provide, amongst other things that:

• Clinics are obliged to counsel the parents and the surrogate mother about the implications of surrogacy (3.4).

• There are no bars to single women or men using ART services (3.5.1).³³

• Clinics should not advertise for surrogates. Finding a surrogate should be the responsibility of the intended parents and the semen banks (3.10.4).

• Clinics must not be a party to any commercial aspect in donor programmes or gestational surrogacy (3.5.3).

The 2005 Guidelines also contain specific rules on the selection, screening and status of surrogate mothers, including:

• 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 (3.10.1).³⁴

• A child born through ART shall be presumed to be the legitimate child of the couple, and therefore have a legal right to parental support, inheritance, and all other privileges of a child born to a couple through sexual intercourse (3.12.1).

• The birth certificate of the child must bear the name of the intended parents and not the surrogate (3.5.4).

• A child will not receive information on the name and address, that is, the identity of the gamete donor or surrogacy mother. However, on reaching the age of 18, they have a right to seek other information about their genetic parent/surrogate mother (3.4.8). Likewise, the clinic must keep all information about the donor, recipients and couple confidential and not disclose the identity of the donor to the parents (except when directed by a court).

However, the 2005 Guidelines are not binding and lack clarity in many respects which reduces their potential to provide guidance and minimise conflict. They also do not state any overarching philosophical framework that would help in deciding the difficult ethical and regulatory dilemmas raised by surrogacy.³⁵ It has been commented that, instead of building in checks and controls, the guidelines have the effect of actually promoting surrogacy.³⁶ The guidelines lean too much towards protecting the interests of ART providers and prospective parents, leaving surrogate mothers vulnerable and open to exploitation. Their permissive stance is viewed quite critically, in particular by those who oppose surrogacy.³⁷ More generally, public health and social policy experts note that the guidelines reinforce social prejudices and stigma traditionally associated with infertility in India, rather than stressing the need for public health measures to prevent infertility or encouraging alternative ways of dealing with childlessness such as adoption and fostering.³⁸

In 2006, the Indian Council of Medical Research (ICMR) released a ‘Statement of Specific Principles for Assisted Reproductive Technologies’.³⁹ These Principles, while not containing much detail on surrogacy, largely reflect the 2005 Guidelines but, interestingly, appear to strengthen the position of the surrogate mother vis-à-vis the commissioning parents by proposing that the intended parents should have a ‘preferential right to adopt the child subject to six week’s postpartum delay for necessary maternal consent’.⁴⁰

B. Surrogacy in Indian Courts: Putting General Law to Work

In the Baby Manji case,⁴¹ a non-governmental organisation called Satya filed a petition before the Supreme Court of India challenging directions given by the Rajasthan High Court relating to the custody of the baby Manji Yamada. Baby Manji was conceived with the gametes of a Japanese man, Ikufumi Yamada, and an anonymous Indian egg donor. She was delivered by a gestational surrogate at an Indian fertility clinic in Anand. Before she was born, her genetic father Yamada and his wife, who had consented to the treatment, separated and the issue of who should have custody came before the courts. Satya filed a petition seeking to prevent Yamada from taking Manji to Japan. The NGO submitted that there were no laws on surrogacy in India and that it was in the public interest that the Union of India (the central government) should enforce stringent laws relating to surrogacy to curb abuses. The Supreme Court held that any complaint regarding the child’s welfare would first have to be directed to the Commission for the Protection of Child Rights which had statutory powers of inquiry into child rights under the Commissions For Protection of Child Rights Act 2005. As no such prior complaint had been made, the Court disposed of the petition on jurisdictional grounds. In the course of its decision, however, the Supreme Court discussed the practice of surrogacy in India and effectively declared commercial surrogacy to be legal in India, when it stated, in obiter dictum, that:

‘Commercial surrogacy’ is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions.⁴²

The intended parent or parents can also move an application under the Guardians and Wards Act 1890 seeking an order of appointment or a declaration as the guardian of the surrogate child.⁴³ More commonly, however, they bring a civil suit for a declaration of parentage.

Under section 112 of the Evidence Act 1872, birth of a child during marriage is conclusive proof of legitimacy. In cases where the surrogate mother is married, the child born to her is presumed to be the legitimate child of her and her husband. However, this presumption is rebuttable. In line with the 2005 Guidelines, surrogacy contracts often contain clauses that the surrogate mother and her husband relinquish all parental rights over the child, that the child is to be regarded the legal child of the commissioning parent or parents, and that custody of the child rests with the commissioning parents.

These clauses have been upheld by Indian courts when commissioning parents have applied for a declaratory order that the presumption in section 112 of the Evidence Act does not apply in their case and that they are the parents of the child born in a surrogacy arrangement.⁴⁴ In such cases, the courts have accepted the validity of contractual provisions as to parentage and custody and admitted the 2005 Guidelines and DNA reports as relevant evidence. Courts have also examined whether the birth is duly registered as required by section 17 of the Registration of Births and Deaths Act 1969 and the birth certificate of the child born contains the name of the intended parents. Once the court is satisfied that the agreement for surrogacy between the parties is valid, that the DNA report confirms the biological parentage of the commissioning parent or parents and that the birth certificate is compliant, courts tend to declare the commissioning parents as the legal parents under order XV of the Code of Civil Procedure 1908.

Such declaratory suits are usually not contested by the surrogate mother and her husband. Thus, Indian court orders declaring the parental rights of the commissioning parents are not sought in order to resolve a conflict between the commissioning parents and the surrogate, but rather, because they may assist in overseas proceedings regarding parentage and custody.⁴⁵

IV. International Surrogacies in India: Bringing Home Baby

International surrogacy cases can pose severe problems regarding citizenship and visa issues, in particular where foreign nationals use a surrogacy arrangement in India to circumvent restrictive laws in their home jurisdictions. These conflicts between the different regimes erupt when the commissioning parents intend to bring their newborn children home. The Indian authorities require a passport and visa to take their children out of India (exit visa). The destination countries likewise require that the child enter with a valid passport and the appropriate entry visa (if any).

Indian authorities will not recognise children born to foreign commissioning parents as Indian nationals. This coincides with the 2005 Guidelines, which state that a child born through ART would be the legitimate child of the parents who opted for ART (3.12.1). This means that a child born to foreign commissioning parents will generally not receive an Indian passport on which to exit India. Parents therefore need to apply to their home country to issue them with a travel document for the child. Destination countries respond to such citizenship and passport applications in different ways.⁴⁶