Surrogacy and India
International or cross-border surrogacy raises serious questions of law relating to citizenship, nationality, motherhood, parentage and the rights of a child to be raised by their parents. It is for these reasons that is it important for intended parents to carefully assess the legal risks involved in surrogacy in the country the birth will occur and the country the child will be raised in. (http://blog.indiansurrogacylaw.com)
Baby Manja's Japanese citizenship took over six months to resolve following his birth in India. A German couple has been fighting their legal system for almost two years to get citizenship for their test-tube baby born through surrogacy in India and their case remains unresolved. Due to last minute elevated fee hikes, a Canadian couple's joy as first-time parent was robbed. http://www.latimes.com/news/nationworld/world/la-fg-india-surrogacy-20110418,0,4592266.story
An Israeli homosexual couple has been denied the rights to obtain an Israeli passport for their two-month-old child born in India. These are but a few of the problems caused by surrogacy in India. (http://timesofindia.indiatimes.com/city/mumbai/5-yrs-in-making-holes-in-draft-law/articleshow/5915005.cms) Is surrogacy in India safe?
This is a complicated question and the answer is yes and no. The reality is that surrogacy in India is approximately 5 years old. Reproductive tourism is a new field to India and the laws are immature and untested. By contrast the laws of surrogacy are 30 years old in California. The courts in California have dealt with thousands of surrogacy cases and the laws are known, tested and upheld by the Supreme Court of California. India’s largest surrogacy clinic has participated in 167 surrogacy cases from 2003 to 2010 whereas just one of the largest surrogacy agencies in CA has participated in over 1500 births.
In 2002 India passes laws making surrogacy legal in that country. In India the law states that a surrogate mother’s name is not to appear on the birth certificate and that she has no right to keep the child. Rudy Rupak, co-founder and president of PlanetHospital, a medical tourism agency with headquarters in California, said he expected to send at least 100 couples to India this year for surrogacy, up from 25 in 2007, the first year he offered the service. Lower prices in India make surrogacy affordable by middle class Americans. Under guidelines issued by the Indian Council of Medical Research, surrogate mothers sign away their rights to any children. A surrogate’s name is not even on the birth certificate. (http://www.futurepundit.com/archives/005073.html)
However in the Jan Balaz case the birth certificate carries the name of the Indian surrogate mother and Mr. Jan Balaz, the German National. The Supreme Court of India will soon decide if Mr. Balaz must undergo an adoption of his child from the surrogate mother thereby confirming that the surrogate mother is the legal mother of the child she carries. This is of course not in accordance with the agreement the couple entered into with their surrogate mother and the agency. The decision of the Supreme Court of India shall have an impact on all the ongoing cases of surrogacy in the country. It is highly recommended that intended parents wait for a decision from the Supreme Court of India before entering into any surrogacy arrangement. There are strict rules governing international adoption and these rules will most likely be breached if a surrogate mother receives compensation for her services. The laws in India are immature, untested and unpredictable. Over the next decade, with more experience in this field, India may find a solution to how to regulate surrogacy. There is no certainty regarding the laws of surrogacy in India. What are the pros and cons of surrogacy in India?
- “It’s not for nothing that countries like India are called the Third World. When you arrive there it’s like you’ve just stepped onto another planet.” (http://www.roadjunky.com/article/635/third-world-india). The reality is that India is a country of sharp contrast between rich and poor. For some India would be classed as a developing country. The gap in India between rich and poor is far greater than in most Western nations, with little being done to try and close this gap. Indian society is extremely unequal, with little being done to ease the lot of the nation's poverty-stricken majority, and international relief agencies being required to operate in rural parts of the country. Standards of public health are low, and the human rights record is very poor, with much police brutality and abuse against low-caste Indians, and legal rights for them negligible. Until these changes, India will be classed as a developing country. (http://wiki.answers.com/Q/India_is_a_third_world_country)
- SART figures for clinics in the U.S. show that fresh cycles in 2007 had the following results:
- 48% of cycles resulted in live births for women less than 35 years old
- 41% of cycles resulted in live births for women 35 to 37 years old
- 23% of cycles resulted in live births for women 38 to 40 years old
- 19% of cycles resulted in live births for women greater than 40 years old
Of these cycles, 30% had twins, and almost 3% had triplets or more. (https://www.sartcorsonline.com/rptCSR_PublicMultYear.aspx?ClinicPKID=0)
Clinics in India have not published their success rates. There are more than 1000 IVF clinics in India, but no laws govern assisted reproductive technology (ART), which includes surrogacy, and no watchdog has been authorized to police it.
"Most of the ART clinics in this country are not following these guidelines because they do not have any legal strength," said R. S. Sharma, the deputy director-general in the division of reproductive health and nutrition at the Indian Council of Medical Research.
A Canadian couple discovered their twins were not biologically related to them when DNA testing was done upon their birth in India and these twins may spend the rest of their lives in an orphanage because the clinic’s records are unable to identify their biological parents.
- At face value, surrogacy in India appears to be a win-win situation. The intended parents receive a longed for child while the poverty stricken surrogate earns ten times an average person’s yearly salary. However on reflection it can be argued that surrogacy in India is no more than the exploitation of the world’s poorest women and that intended parents pay a price that is a fraction of the price they would pay closer to home for surrogacy. Surrogacy in America has had 30 years to develop and settle on the guidelines that govern the field. Typical to most USA surrogacy programs and upheld by reputable IVF clinics is the following guidelines:
- Surrogate must be between the ages of 21 and 42 years old.
- Surrogate must have delivered at least one child herself (reputable agencies will also require that she has raised a child or is presently raising the child)
- Surrogate cannot be receiving any welfare payments
- Surrogate is entitled to independent legal counsel
- Surrogate undergoes psychological screening (reputable agencies will screen the surrogate and her husband).
The 50 pregnant women at the clinic are mainly of lower caste and from impoverished nearby villages. The pay they can hope to receive following a birth is equivalent to over 10 years’ salary for rural Indians.
It appears that the majority of surrogates recruited in India would be ineligable to participate in surrogacy in the US.
- In the USA it is unusual for a surrogate’s husband to approach a surrogacy agency and such solicitation would raise red flags for a counselor evaluating the case. In India many husbands actively work to convince their wives to participate in surrogacy because of the financial benefits to the family.
They don’t want to appear ungrateful, but some surrogate mothers admit that they would not take the risk if they had a choice. “My husband took almost two months to convince me to do it,” says Anandi, a 39-year-old about to give birth for an American couple. “He said, ‘Do it for your children.’ But I have very young children and I was worried about leaving them.
“I will feel sad when I give away the child. I don’t know if I will be allowed to have contact with it. My children want me to give the baby away; they don’t want it at home. Nobody else knows about this. The village people would say bad things. I’ve just said that I’ve gone away for work, and I haven’t even told many of my relatives, only a few. They wouldn’t understand.”
Anandi had just moved from one of two “confinement” homes, where surrogate mothers live for the duration of their pregnancies. They may leave the gated premises only for hospital check-ups, and their husbands and children are allowed to visit on Sundays.
If the first surrogacy is successful, Sumita would consider another. But 10 minutes later, it is time for Janisha to leave. In dread of another separation, she wails and grips Sumita’s bedcovers, before tearing away and running round in heartbreaking distress. Her anguish shatters any illusion that to be a surrogate mother is simply a way to make easy money.
- It should always be remembered that surrogate mothers are first and foremost mothers to their own children. Surrogate mothers in India must leave home for the duration of the pregnancy and live in a hostel run by the surrogacy agency. The reasons given by Indian run surrogacy agencies are:
- Poor obstetrician/pregnancy care in the village the surrogate lives in
- Poor living conditions
- Agency is unsure if the surrogate mother will have access to fresh fruit and vegetables during the pregnancy
- Agency not comfortable with the living conditions of the pregnant surrogate mother
- Problems with other village residents with regards to disapproving of a surrogacy pregnancy
- Inability to remain in contact with the surrogate during the pregnancy due to no or poor means of communication.
- Uncertainty of being notified when the birth occurs or if a birth is imminent.
- No place for the Intended Parents to stay for the birth and after the birth
- No neonatal intensive care facility close by for the baby after the birth
However, all these reasons concern the newborn baby and the Intended Parents. There is no good reason for the surrogate mother to have to abandon her family and move far away from her family for almost 9 months. This relationship is clearly inequitable. There appears to be no balance between a surrogate mother as a mother and a surrogate mother helping another couple. Why not allow the surrogate mother to see her children every day or whenever they can make the journey to see her? Why not allow the surrogate mother to have her children live with her? Why does the agency simply advertise in neighborhoods that are safe and middle class so the surrogate can live at home? The answer to the latter question may well be that to pursue surrogate mothers who from middle class families would result in surrogacy arrangements being of comparable costs as surrogacy costs in the United States.
This will often involve these women cutting themselves off from their families, including their own children, for the period they are gestating the child. They will take on the risks of childbirth for a child they will never know. If the pregnancy does not go to full term, or the child does not live, they are unlikely to be paid. Some will inevitably suffer psychologically from giving birth to a child from whom they will be immediately parted. The whole process is likely to be very alien to their culture.
It is arguable that their human dignity and right to bodily integrity is infringed, and the rights of their own children to the society of their mother may be compromised. http://www.irishtimes.com/newspaper/ireland/2010/0419/1224268626911.html
- The rapidly growing but unregulated field of surrogacy in India has led to calls for India to introduce tight laws on surrogacy to protect both the Intended parents and the surrogate mother. New legislation has been drafted, detailing the obligations and rights of all parties, but it has yet to be enacted. According to Priya Hingorani, a prominent Delhi lawyer and member of an expert panel drafting the bill, tight regulations must be enforced to offer the surrogate mother a comprehensive package of remuneration and medical and psychological care. “When I look at the poverty, and the genuine need of the couple who don’t have children, I think that surrogacy is all right,” she says. “But when I see the other side of things, when people are exploited, then there is the need for very strong regulation. Surrogacy has become more of a commercial racket as it becomes more prevalent. We are seeing a new trend of fertility and wombs on sale.” The legal status of surrogacy is unsettled at this time in India.
A bill to govern assisted reproductive technology and surrogacy has been drafted that makes it much harder, and maybe impossible, for international couples to hire Indian surrogates. Under the proposed law, a foreign couple wanting to enter an agreement with an Indian surrogate would need a written guarantee of citizenship for the child from their government. There is also concern that the proposed Indian legislation would also prohibit gay couples from hiring surrogates.
- For prospective parent participating in surrogacy in India the entire process is also fraught with difficulties. Thousands of miles from home, the language barriers, culture shock and basic standards of a Third World clinic, where two women are often in the operating theatre at the same time, can make for a frightening experience. Couples pursuing surrogacy in the USA are often concerned about the medical qualification of the obstetrician taking care of their pregnant surrogate mother and their unborn child. They frequently ask questions about which perinatologist they should go to for the nuchal fold test, the cvs testing or the amniocentsis. Couples request second opinions, want to know about the hospital their baby will be born at, what doctor will their baby see between birth and their return home. What options are there in India?
- For some countries such as the USA, a couple can complete their paperwork within 10 days of birth and return home with their newborn baby. However for other countries the stay is indeterminable. Many British couple need to spend 2-3 months in India before returning home.
- Finalization of parental rights for most countries involves proving a genetic link between the baby and the parent. For couples where only one parent is biologically related to the child there is an additional risk of doing surrogachy in India. If a parent dies before the birth of their child, there will be no way of proving the child is genetically related to the parent and therefore impossible to obtain citizenship for that child. These children must remain in India and potentially live their lives in an orphanage.