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Twenty-eight-year old Asha (name changed) is two months pregnant with a baby she is carrying for a Brazilian couple. But it’s not the pregnancy that worries her. Mother of a young daughter, Asha is anxious about the Centre’s move to ban women from becoming surrogates for foreign couples.
“There are many like me who are carrying babies for foreigners. What happens to these mothers and the babies yet to be born,” she asks.
At least 150 couples, who have initiated the surrogacy process, will be affected by the recent government directive, says Nayna Patel, medical director with Akanksha Infertility Clinic. It becomes difficult to answer anxious couples who are thousands of kilometers away, she says.
The uncertainty over commercial surrogacy stems from recent developments that occurred against the backdrop of the Assisted Reproductive Technology (Regulation) Bill (2014). A draft of this Bill was uploaded for public comments on September 30, 2015, but the speed at which events unfolded subsequently has fertility experts puzzled.
About 10 days ago, the Indian Council of Medical Research (ICMR) sent out a directive asking States and clinics not to support commercial surrogacy. This, even as a case against surrogacy is being heard by the Supreme Court.
The timing of this ICMR decision is curious, coming just days ahead of the November 14 deadline set by the Government for feedback on the ART Bill.
It seems like a sham, says a surrogacy expert, questioning the ban announcement that came even before the feedback process was completed. A couple of fertility doctors got clearance from the Bombay High Court to continue with procedures already initiated to avoid “medical complications”, a media report said. But that still does not clear the air.
No one objects to being regulated, says Patel, but the Government has to discuss this and come out with precise rules. The procedure is well documented even today — foreign couples seeking a surrogate baby need to register with the Indian Embassy in their country, have a supporting letter from their doctor saying that they are unable to have a child and that they need to come on a medical visa.
While that may be true of reputed clinics, there are many across the country that operate below the radar, says Sarojini N with Sama Resource Group for Women and Health, stressing the need for regulation and enforcement. Some clinics operate through middle-men and women who get paid by the clinic, the prospective parents and the surrogate mother, she says, calling for a ban on such agents. Asha was drawn to surrogacy seeing a friend, who went through it without complications. “As a divorcee, I need to think of my own daughter and need the money to finance our lives,” she explains.
If the process is transparent, it is not exploitative, says Patel. A developed country like America has among the highest number of surrogates and it costs close to $200,000 for a procedure, she points out.
But there is scope for exploitation on payments, says Sarojini, questioning what happens if the baby is still born, or born with a health problem. Past incidents have also shown the possibility of “surrogate orphans” — if the paying foreign couple separates or their country does not recognise surrogacy or the baby born out of it. “It is all in the contract on who will take care of the baby if the couple divorces, on getting a return visa, etc.,” clarifies Patel. Sarojini points to the virtual constant surveillance that surrogate mothers are put under by clinics during their nine-month stay, a controlled scenario captured in their documentary titled “Can we see the baby bump, Please?”
But as the Government moves to ban commercial surrogacy, fertility experts say, that perhaps a well thought through law and its enforcement can help save the baby from being thrown out with the proverbial bathwater.
STATE OF PLAY
Total surrogacy package — ₹12-18 lakh (varies for Indian, NRI or foreign couples)
Surrogate mother paid ₹2-5 lakh
Countries like France and Germany ban surrogacy; UK recognises non-commercial surrogacy. Many US states recognise compensated surrogacy.
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