Trying to tame the Wild West of surrogacy in India

Divya is 28, in her seventh month of pregnancy and a surrogate for an Australian couple in their 40s. (Her last name has been withheld because her family members are unaware she is a surrogate, and because of the stigma that surrogacy carries in India.) This is not the first baby Divya has carried that is not her own — there was another in 2010, for an Indian couple. She is one of the millions of surrogates who help to generate 24.8 billion rupees in revenue each year and, along with roughly 3,000 clinics that provide in vitro fertilization, have turned India into the surrogacy capital of the world.

Because surrogacy is legal but not regulated, surrogates like Divya are subject to exploitation by middlemen, clinics and would-be parents, say women's health advocates. Last month, India lost another opportunity to regulate its multimillion-dollar surrogacy industry, as the country’s Parliament failed to pass the Assisted Reproductive Technique bill, or ART, during its winter session, citing a lack of time. Critics of the bill say it doesn’t do enough to protect surrogates, but most agree that it would be better than nothing.

Surrogacy, the practice of carrying a baby for someone, can be gestational, in which the surrogate is implanted with a fertilized egg that has no genetic relationship with her, or traditional, in which the surrogate is artificially inseminated and is genetically related to the baby. India has no laws on commercial surrogacy — just loose guidelines issued by the Indian Council of Medical Research, which experts call toothless and woefully inadequate.

Without a law, there are no provisions to address everything that could go wrong. In 2008, for instance, a Japanese couple who had arranged for an Indian surrogate to carry their baby divorced before the baby was born. Though the father wanted the baby, Indian law doesn’t permit single men to adopt, so Baby Manji remained in a Jaipur hospital for two years until custody could be resolved. Last October, an Australian couple abandoned one of their twin babies born to a surrogate in Delhi because they already had a child of the same sex. And in Mumbai, would-be parents Ravi and Divya Kapoor claim that the total cost of the surrogate pregnancy they commissioned turned out to be more than two and a half times the 10,00,000 rupees (about $16,100) that was agreed on.

The easy availability of surrogates, the clean medical facilities, the presence of a large English-speaking population and government emphasis on medical tourism have drawn thousands of foreign couples to India ever since surrogacy was legalized in 2002. Today, leading ART clinics in the country oversee anywhere from 100 to 300 surrogate pregnancies every year.

“In this business, the baby is the product. The surrogate is the means of production. Even those who care for the surrogate do so until the product is delivered,” says Ranjana Kumari, director of the nonprofit Centre for Social Research, which works on women’s issues. “The surrogate is waste material for them after the delivery.” She hopes that the ART bill, if passed, will change that.

“Surrogacy is such a complex issue that if India had managed to draft a just law keeping in view all parties, that would be a first for commercial surrogacy in the world. India would have set a standard universally,” says Anurag Chawla, a lawyer who specializes in surrogacy cases.

The bill, if passed, would create a government agency to regulate ART clinics, which would have to meet certain standards of cleanliness and medical expertise and would have to abide by a code of ethics. Clinics would be required to provide services such as counseling to the parents and the surrogates and keeping detailed documentation for both parties. Clinics that don’t meet the government requirements would lose their license and could face prosecution. But the bill doesn’t provide much of a safety net for surrogates, activists say. 

Surrogacy has been commercially available in the West since the late 1970s, when the first “test-tube baby” was born in England. Many countries, such as England and Australia, have banned commercial surrogacy for ethical, religious and medical reasons, as have some states in the United States. Those that haven't banned the practice ensure that the industry is stringently regulated. Except for India.

Here, commercial surrogacy has been permitted for more than a decade, but without government regulation, surrogates have to accept the terms that ART clinics give them. Divya, like many surrogate moms in India, is illiterate. Desperate for the funds, she agreed to the contract by thumbprint, without knowing what the “stuff written in English” meant. A 2013 study conducted by the nonprofit Centre for Social Research found that 88 percent of surrogate mothers interviewed in Delhi and 76 percent in Mumbai did not know the terms of their contract. In fact, 92 percent of those in Delhi did not even have a copy of it.

Today, surrogacy contracts typically exclude the surrogate herself and are usually between the clinic and the commissioning parents, who agree to accept all the consequences of their decision, says Gita Aravamudan, author of the 2014 book “Baby Makers: The Story of Indian Surrogacy.”

Despite all the hurdles, many women choose to be surrogates because the pay makes a difference to their families. “If you ask me do I feel satisfied with the amount of money I get at the end of all the physical troubles I have gone through, I do not know,” says Priya, a surrogate in the southern Indian city of Bangalore. “But I can tell you that I desperately needed the 300,000 rupees I got, as my husband had a lot of loans to clear off. And I am happy I got it in a mere 10 months.”

According to the Centre for Social Research, clinics earn up to 2.5 million rupees per case. “And how much does a surrogate get paid? Less than 500,000 rupees. The inequality is blaring,” says Kumari. However, the clinics do provide services such as storing the embryo and collecting the eggs, which can be expensive.

And the bill won’t do much to address that imbalance, activists say, because it is biased toward the commissioning parents and the ART clinics. “I think India should worry about treating its surrogates in a more humane manner,” says Saumya Pant, an assistant professor at a communications-and-management institute, who has conducted extensive research on the issue. She believes the surrogates’ compensation should be standardized, that medicines and food should be made available to them free of cost and that their emotional and psychological needs should be addressed. Pant hopes that these provisions will be added to the ART bill when it is finally debated in Parliament.

However, there are important players in this industry, aside from the surrogates, whom the proposed law would not address: the middlemen, who recruit a steady stream of surrogates to the ART clinics. “I think it is bad enough that we do not have a law, but it is worse that the one being debated doesn’t address [significant] questions like middlemen,” says Chawla, the lawyer.

About 90 miles north of Delhi is Jind, a rural district in the state of Haryana infamous for its skewed sex ratio in the state of Haryana. Divya and her husband moved from Jind to Delhi a decade ago in search of more-lucrative jobs. Two years after they settled into their shanty in Gadhi, an island of huddled-up slums in the sea of posh south Delhi residences, they met Rahman bhai (Brother Rahman). A smooth talker, Rahman bhai explained the technicalities of surrogacy, but Divya declined, unable to bear the thought of carrying another man’s child.

A major part of the middleman’s job is to clear up misconceptions about surrogacy and convince women that what they are doing is not immoral. Many women do not understand that medical procedures can allow them to carry a man’s child without having sex with him. These middlemen — not formally affiliated with clinics, which usually pay them clandestinely — are largely invisible on paper.