By Gita Aravamudan

(Independent Journalist and Author of Baby Makers: The Story of Indian Surrogacy)

In this season of bans, the one which went almost unnoticed by the public at large was the proposal to ban commercial surrogacy in India.  Perhaps this is because most people don’t even know what surrogacy is, let alone commercial surrogacy.

And yet commercial surrogacy is a multimillion dollar business in our country.  According to a UN backed study done in 2012, the estimated the business is more than $400 million a year, with over 3,000 fertility clinics across India.  These figures would most probably have gone up by now.  Actually, no one has a proper estimate of the number of fertility clinics or how much business they do because no systematic effort has been made to collect proper data.  Over the last decade and a half, this “Make in India” business has merrily mushroomed without regulation.

Surrogacy is the process by which one woman rents out her womb to another who is unable to carry her own baby.  It is part of a medical procedure which enables infertile couples to use their gametes (eggs and sperm) to create an embryo through a process known as in vitro fertilization (IVF).  This embryo is subsequently implanted back into a womb for incubation.  If the womb of the woman in this process is found unfit to carry a baby, another woman’s womb is used.  The woman who bears the baby for someone else is called a surrogate.

An altruistic surrogate is one who does this for free.  A commercial surrogate uses her womb to earn money.  According to the new proposal, the government plans to ban commercial surrogacy for foreigners and Indians alike and will allow only proven infertile Indian couples to hire altruistic surrogates.

Many countries have found that banning fertility treatment pushes the business underground.  In countries like Britain, for example, where only altruistic surrogacy is allowed, the surrogate is often paid much more than what is actually revealed. In countries where the sale of human gametes is prohibited, there is a flourishing trade in the black market.  One can imagine what will happen in country like ours where there is a flourishing underground market for anything and everything.

In 2000, no one in India had even heard of Fertility Tourism. But by 2012, when I started researching my book “Baby Makers: The story of Indian Surrogacy,” it was one of the big money spinners. Patients with fertility problems were being offered a bouquet of services including surrogacy, third-party gamete transfer and in vitro fertilization.  Eggs, sperm and even embryos could be bought or sold like any other commodity.  Frozen embryos were imported to India through special courier services.  Until a couple of years ago, India also offered fertility packages to gay couples coming from abroad.

Assisted Reproductive Technology (ART) has been a commercially available service since the 1970s in developed Western nations. But due to various concerns – ethical, religious, medical – many countries have regulations in place.    Some predominantly Catholic countries in Europe do not allow commercial surrogacy. Others have strict rules regarding the number of embryos that can be transplanted. In some countries, older women, gays and single women are not allowed to undergo treatment for infertility. Commercial egg donation is also banned in many countries. In the US commercial surrogacy is allowed in some states, banned in others and regulated in some. In the UK only altruistic surrogacy is allowed.

All this means long delays and escalating costs which often renders the treatment far out of the common man’s reach. Over the years, India has become a hot destination catering to this niche market. There are several reasons for this, the topmost being the easy availability of commercial surrogacy, which is unquestioned and unambiguously legal in India….  At least until now. 

There are other more practical reasons too. Since the demand for fertility treatment and surrogacy arrangements has been growing exponentially over the last 15 years, Indian doctors have now garnered a lot of expertise in the field. The medical facilities here are good and not exorbitantly expensive.  We have a fairly large English speaking population so communication is not a problem.  And most importantly there are a large number of women willing to rent out their wombs because they need the money they earn.

By 2013 India along with Thailand had established itself as the commercial hub of the surrogacy industry. I travelled to many cities across India, visited clinics and interacted with doctors, service providers, the intending parents, surrogates, agents and even parents who had already had babies through surrogacy. I monitored over months, parents and their hired surrogates to understand the emotional conflict and other social issues. I did a lot of reading of the history, the ethics and the legal and medical issues involved.

Investigating surrogacy was like stepping into a quagmire.  There is no black and white in this field.  It is neither morally wrong nor “insulting to womanhood” as some critics make it out to be.  In fact the surrogates themselves don’t find anything wrong with bearing a baby for another couple without any sexual contact but through “injection”, as they call the embryo transplant.  In fact one surrogate told me “imagine how many men I would have to sleep with to earn this Rs. 5 lakhs which I got just for carrying a baby for another woman.”!

The problems arise because of the unethical behavior of the hundreds of unauthorized fertility clinics, which have mushroomed all over the country because of a lack of regulations. I’ve visited clinics where lab assistants masquerade as embryologists and unrelated embryos are passed off to gullible couples as their own.

But we also have top end clinics like Nayana Patel’s Akanksha in Anand for instance where there is a meticulous system in place for handling the IVF procedures, as well as taking care of the surrogates who carry babies for the largely foreign clientele.

IVF treatment is neither cheap nor easy and is fraught with potential medical problems, which have to be properly monitored and tackled.

So far the only regulation we have is a patchwork of “guidelines” issued by the ICMR.  The ART Bill which was drafted by experts in the field has gone through several modifications but has so far not come anywhere close to becoming a law.  And even as months and years pass by, newer and newer technology has come into the arena making the task more difficult.

Some vital regulation has been put in place over the years.  For instance couples coming from countries where surrogacy is not allowed are no longer given visas for fertility tourism in India.  This is because many misused the liberal laws here to have a child through a surrogate but found they could not take it back home.  This left the child in no man’s land for no fault of its own.  Also the intending parents have to now sign a contract with the surrogate specifying details of her payment, maintenance and so on.  She in turn has to sign off all rights over the child she bears.  But, often the surrogate is illiterate and does not even know what she is signing and can be exploited by an unscrupulous agent.

Recently, Thailand banned commercial surrogacy after a series of mishaps showed up the dark underbelly of the business in that country. For a short while Nepal became a hub, but in the aftermath of the earthquake there was a lot of pressure to ban it there as well as it was found that there were many pregnant Indian surrogates who had been illegally bought into Nepal as Nepali women were not legally allowed to rent out their wombs in their own country.  There are many Nepali surrogates in India, though. 

There are lots of black holes.  But is banning the answer?  Banning commercial surrogacy would actually create more problems than it solves because it would push the entire business underground making fertility options more hazardous than they already are.  Today, surrogacy offers a solution to many infertile couples from India as well as abroad.  It also offers a livelihood to many women who are badly in need of money.  But a lack of proper legislation leaves plenty of room for exploitation and unethical practices.  It is this lacuna that has to be addressed. 

If we can clean up our act by flushing out all the fraud “doctors” and agents and enforcing proper regulation today, India actually stands to gain.