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Wombs on hire

Policy Pulse discusses the debates and controversies surrounding the pending Assistive Reproductive Technology (ART) Bill and what it will mean for surrogates and expecting parents

Policy Pulse
Publish Date: Nov 28 2015 5:20PM | Updated Date: Dec 23 2015 3:53PM

Wombs on hirephoto/ Hrishikesh bhatt

It’s like any other day at the International Fertility Clinic in the bustling, up-market zone called Green Park in South Delhi. A couple of young, expecting Indian mothers are sitting in the basement office, while a middle-aged, white couple waits patiently for their turn to see Dr Rita Bakshi, the Director of the Institute.


While everything appears to be calm, everyone’s mind is on the notification by the Indian Council of Medical Research asking IVF (In-Vitro Fertilisation) clinics not to allow foreigners to hire surrogates. Dr. Bakshi calls the decision bizarre saying that it’ll push the country behind many years and shatter the hopes of many hopeful couples. While she agrees that there is a need to regulate what has been becoming a virtual trade, mushrooming all over through the past few years. Though there is a need to ensure that poor women don’t get exploitatively turned into surrogates, yet at the same time a blanket ban is not the solution, she says.


The debate of allowing surrogacy has been a polarising one throughout the world, but in this multi-million dollar industry where doctors pocket a substantial sum, it is certain to upset them.


While fertility specialists argue that the government shouldn’t discriminate against foreigners, the surrogates themselves are mostly illiterate, ignorant and poor in a stark contrast to the foreigners hanging around the clinics, almost all of them said that they entered the contract willingly and were happy to help a childless couple. It seemed pretty obvious that the only reason they decided to rent their wombs was for money. Some even admitted to have rented their womb more than three times, while they had two to three of their own kids.


This gives rise to the huge ethical question -- whether it is right to hire a woman’s body for child-bearing, especially if she happens to belong to the poorer strata of society.


Surrogacy is categorised in two groups – one is commercial whereas the other is altruistic. Altruistic surrogacy is where the intended parents do not pay the surrogate for her service but cover her medical bills, while in commercial surrogacy the surrogate is compensated for carrying the baby for the commissioning parents. While some countries like Germany, France and Spain ban any form of surrogacy, the UK, Denmark and Belgium allow altruistic surrogacy, and some states in the US, Russia and Ukraine permit commercial surrogacy.


While the world is divided over whether to allow commercial surrogacy or not, in India a debate rages on since the ICMR sent notices to over 350 IVF clinics in the country, asking them not to entertain foreigners who are looking for surrogates.


Last year, the debate had also been revived when an Australian couple had refused to take custody of the child born from the surrogate after they found that the child was born with some disorders. The then Health Minister Dr Harshvardhan had suggested many changes in the Assistive Reproductive Technology (ART) Bill, including making it mandatory for couples not to discriminate and to take custody of any child born through surrogacy. This new directive by the ICMR does not specify whether altruistic or commercial or any other type of surrogacy is not allowed to foreigners, it just says that foreigners can’t avail of the service in India.


Amendments to the act were also introduced to regulate IVF clinics, making them mandatory to be registered and have proper infrastructure. Over the last decade the surrogacy industry has multiplied manifold, with Anand in Gujarat often being referred to as the surrogacy capital of the world.


Childless couples from across the world flock to India for the cheap services provided. According to reports, over 20 percent of the total couples opting for surrogacy in India are foreigners and the industry generates a whopping 2$ billion a year. As a result, ART clinics have flourished all over the country. Most of them are unregulated and many operating without a proper licence.


In addition, as the industry has been operating within just guidelines, which are toothless, many malpractices have crept into the system, like multiple IVF cycles performed on surrogate mothers and the lack of a check on the potential health risks faced by women who offer the services. To check such malpractices the ATR regulation bill was drafted.


The Assisted Reproductive Technology Bill which had been in the making for over seven years has many contentious clauses which have been the matter of much public debate. India had its first surrogacy in 1994 and the guidelines for accrediting and supervising ART clinics were first framed by the Indian Council of Medical Research (ICMR) 11 years later.


The UPA Govt in 2008 tried to regulate the industry with a law and prepared a draft Assistive Reproductive Technology (Regulation) Bill, which was revised subsequently in 2010 and 2014. But even then there hasn’t been a full consensus between the Health Ministry and ICMR on the amendments to the bill. 


A Director General level Health Ministry official and the ICMR chief were at loggerheads over several points, and because of these contentious issues the draft was sent to the Cabinet, and it is yet to see the light of day. 


While the health ministry officials were against foreigners and un-married men being allowed to go for surrogacy, the other side was in favour of it. The bill is expected to be introduced in the upcoming session of Parliament. 


But the letter by the ICMR to IVF clinics stating that "No permission should be granted by the Foreigners Regional Registration Officers (FRROs)/Foreigners Registration Offices (FROs) to Overseas Citizens of India (OCI) cardholders to commission surrogacy in India," has come as a shock to many, especially fertility clinics.


Though many argue that in the guise of commercial surrogacy local women especially belonging to the poorer classes get exploited, there’s another side of the story. Many experts also claim that the Government’s decision to ban surrogacy for foreigners may be totally ineffective and on the contrary push the already thriving industry to the black market. As the demand and supply for babies is unlikely to go down many may well resort to back channels to fill the gap. And this may just push either the market to another developing country or to the black-market and that would result in even greater exploitation of women. Many activists even claim that sex selection and surrogacy go hand-in-hand but doctors refute these claims.


Many surrogates themselves aren’t in favour of a blanket ban on commercial surrogacy. Kamala, a surrogate who lives in a slum near a posh South Delhi area says she opted for surrogacy first five years ago. Her husband had started a small tea shop but that didn’t bring much return. When the family was in a huge financial crunch she started to work as a domestic help in nearby houses. It is there she says she got to know about surrogacy from another co-worker. As her family was in a huge debt and her husband had taken to excessive drinking, she decided to opt for commercial surrogacy. It was for the sake of her children, she says. 


Today, she claims, she is extremely satisfied with her choice. She received four lakh rupees and her medical bills and other expenses during the pregnancy had been taken care of by the white couple. The tough decision helped her family sail through difficult times and she has no regrets about that. This time she is doing it again as she wants to start her own work. Her husband who wasn't fully convinced then is now supporting her. When asked if she knew the risks involved or adverse health effects she just laughed it off, saying that nothing can avert the inevitable.


Many surrogates feel that the ban on commercial surrogacy will hurt them more than the foreigners. For poor women surrogacy has been a great way to earn money but now with a ban they risk losing their livelihood. 


“I earned much more at one go than I would have after years of working as a domestic help,” says Kamala. 


Ever since India legalised commercial surrogacy in 2001, thousands of fertility clinics have cropped up across the country. There is no official estimate of how many IVF clinics are actually there in the country. A 2012 UN report claims there are 3000 fertility clinics throughout the country. Some special hubs have burgeoned, like Anand, ironically also referred to as the ‘milk capital’ of Gujarat.


If we compare costs, India is still one of the cheapest countries to hire a surrogate. In India a commercial surrogacy costs about rupees ten to twenty lakh or around twenty to twenty five thousand dollars. In the US, where commercial surrogacy is allowed in a few states, the same services would cost whopping one lakh dollars. Thailand had also been a huge attraction for foreigners who wanted a child through surrogacy but recently the country passed a law banning commercial surrogacy.


While many activists feel that in the name of commercial surrogacy poor, illiterate women were getting exploited by touts and doctors who were charging an enormous amount from the couples who wanted a baby through surrogacy but not passing on the benefits to the surrogate mother. 


In addition, there was no strict mechanism to check that the number of children each woman was giving birth to and what her age was at the time of the birth.


While many are praising certain clauses of the bill like removing touts and increasing the age of surrogates, limiting the number of total live births to one, ensuring that the surrogate is a married woman with at least a three-year old child, and making the hospital responsible for any kind of mishap. The big question is of implementation. There are many laws in the country but when it comes to implementation on the ground the real challenge begins. 


A senior health ministry official said that the bill was being amended to safeguard the interest of poor women who act as surrogates but when asked how they would ensure implementation considering that there are thousands of IVF clinics operating in the country, he said that they would ask the state Governments to help.


Calls are being made for regulation not revocation. Dr Bakshi of the International Fertility Clinic accepts that there is a need to regulate the IVF centres which are coming up all across the country but at the same time she says that in the name of regulating the sector the Government should not put a blanket ban.


Many activists also feel that this bill will not serve its purpose to protect women from economically weaker sections as it just curbs one group that is foreigners. If the idea is to stop unethical practices then how will banning one group help?


Another major challenge the Government can face is detecting whether the pregnancy is altruistic or commercial. With the government planning to allow just altruistic surrogacy even for Indian couples it will not be an easy task to detect how many women are actually doing it just to help the couple. 


The many women who were present at the fertility clinic said that they not only did it for the money but to give the joy of being a parent to a childless couple. But looking at the difference in social status between them and the couple it was pretty obvious that money was a huge factor. So even if the government allows couples only to go for altruistic surrogacy it won't be difficult to skirt the law.


Perhaps one major relief is that the cases of surrogacy which have already been initiated or are being processed will not get affected by this new order.


But in a country like India where maternal mortalities are as high as 140 deaths per 100,000 live births in 2015, the surrogacy debate gains even more importance. Many women’s activists like Kavita Krishnan of the AIDWA say that “this is not a debate of choice” and that surrogacy leads to “exploitation of women.”


In fact, in many clinics it is foreign couples who pay the medical and hospitalisation costs of the surrogate, but most surrogates themselves end up getting just a meagre amount of money from the process.


Also, most of the surrogates are from economically weaker sections of society and thus more susceptible to be exploited. Their financial condition is a huge factor which pushes them to opt for surrogacy. Many of them give multiple births, some as high as eight to nine children including their own, which can have serious health implications for the woman carrying the child. Often these women are illiterate and don’t understand the health effects of their decision.


In February this year, the Supreme Court had asked the Central Government to respond to a public interest litigation seeking a ban on commercial surrogacy. The Government filed an affidavit in the court on October 27 stating that only altruistic surrogacy would be permitted for "needy, infertile married Indian couples". But a directive sent out by the ICMR has gone a step ahead and asked not to allow foreigners to go for surrogacy.


Also, there are many other clauses of the ART bill which have sparked a debate like reducing the number of live births by surrogates to one, not allowing un-married men to go for surrogacy, allowing clinics to disclose the details of the surrogate. The Government is hard pressed to address these wide-ranging controversies and views, and to get the long pending ATR Bill passed so that there is more clarity on surrogacy processes in the country.