After years of unregulation, the Cabinet cleared a draft Bill that bans commercial surrogacy in India. The Surrogacy (Regulation) bill bars married couples with biological or adopted children, single people, live-in partners, homosexuals and foreigners including NRIs and PIOs from having babies through surrogacy.
Journalist and author, Gita Aravamudan's "Baby Makers: A Story of Indian Surrogacy", published in 2014, examines how surrogacy got transformed into a multi-billion dollar industry. Published below is an extract from her book.
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By Gita Aravamudan
Michael Bergen and Michael Aki are graphic designers from Massachusetts. After they got married in 2004, they tried unsuccessfully for three years to adopt a child in the US. Finally, they decided to hire a surrogate. They chose India because India had better infrastructure, more high-tech facilities and a healthier lifestyle in terms of fewer number of women indulging in smoking, drinking or doing drugs.
The journey of the two Mikes is documented in detail in their blog titled ‘Spawn of Mike+Mike’.
Bergen and Aki zeroed in on Rotunda, a Mumbai clinic that has been marketing its services to the overseas gay community. They had already chosen an anonymous Indian egg donor from the profiles provided by the clinic through email. Finally, they spent four days in India in July 2008. Since they both wanted to be genetic fathers, each gave a sperm sample.
In order to make sure that the agreement was watertight, they spent another $3000 as legal fees to have a US lawyer rewrite it. The process went smoothly. They used eggs from the same donor because they wanted the children to be genetically related to each other. The eggs were fertilized with the sperm of the two men and the embryos were implanted in two separate surrogates. Both women became pregnant almost simultaneously and on their first try. Rose, daughter of Mike Aki, was born on 24 March and Eva, daughter of Mike Bergen, was born on 12 April. With travel costs, the couple spent about $60,000 in all, including $10,000 as compensation for each surrogate. That’s roughly half of what the total cost would have been in the US.
One of the reasons they decided to go for two surrogates at the same time was because they had heard rumours that the Indian government might change its surrogacy law, making it difficult, or even impossible, for gay couples to hire an Indian surrogate.
Meanwhile, around the same time, the Law Commission of India submitted the 228th report in which it addressed the need for a legislation to regulate ART clinics. It also tried to address the needs and obligations of both the parties signing a surrogacy contract. According to the guidelines given in the report, the surrogacy contract should contain, among other things, the consent of the woman to bear the child and hand it over, and the intending parents to bear all the medical and other expenses. But, ironically, it said the arrangement shouldn’t be for commercial purposes.
The Law Commission suggested that the surrogacy arrangement should also provide for financial support for the surrogate child in the event of the death of the commissioning couple, or individual, before the delivery of the child, or in the event of a divorce between the intending parents. The contract should also take care of life insurance coverage for the surrogate.
According to the guidelines, one of the intending parents should be a donor as well, ‘because the bond of love and affection with a child primarily emanates from a biological relationship.’ Also, that the legislation should recognize the surrogate child to be the legitimate child of the commissioning parents, without there being any need for adoption or even declaration of guardianship. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
Although most of these guidelines are being adhered to, the bottom line is that there is still no legislation several years later, and, even in 2014, surrogacy is stuck in limbo.
Surrogacy is not illegal in India. At the same time, there is no specific legal framework governing it. And that’s what makes it such an attractive destination for infertile couples who live in countries that have strict surrogacy laws.
By late 2012, the Indian Home Ministry circulated a memo which was welcomed by some and raised the hackles of others. According to this memo, which was circulated to all Indian missions abroad, gay couples, single men and women, unmarried couples and couples from countries where surrogacy was illegal, would be prohibited from hiring a commercial surrogate in India. Foreigners who wanted to hire a surrogate had to be a man and woman who had been married for at least two years.
At this point of time, there were about 1000 registered and unregistered fertility centres in India. Would these regulations, if they came into force, deliver a major blow to India’s $2.5 billion surrogacy industry? Each year, an estimated 25,000 foreign couples visited India for surrogacy services and more than 2000 babies were born. The cost of surrogacy in India was roughly a third of the price in the US, which was one of the few other medically advanced countries in the world offering commercial surrogacy. The ‘traditionally lax’ regulations surrounding the industry in India added to its attraction.
An Israel-based agency, which had been sending couples to India for surrogacy services since 2008, said the combination of excellent medical facilities and attractive costs brought couples from all over the world to India. Since India decriminalized homosexuality in 2011, the agency in Israel has sent over a 100 gay couples to India.
What was the impetus behind the new regulations? Homophobia? Right-wing posturing about the sanctity of marriage? Or just a practical attempt to avoid legal entanglements with other governments?
There were quite a few cases in which surrogate babies were caught in a legal battle and the government of India was probably anxious to avoid more such distressing situations.
The Baby Manji case was the most famous one, but there were many others. There was the case of a Norwegian woman who was stranded for over two years in India with twins born by an Indian surrogate. When the DNA tests showed that the children were not biologically related to her, the Norwegian embassy in India refused to issue her the travel papers for the twins. The case dragged on.
Sometimes, even when the babies were allowed to travel back to the parents’ country of origin, there were other complications. In 2010, a French gay man, who had twins through an Indian surrogate, was allowed to travel back to France. But surrogacy was illegal in France and, so, his twins were taken away from him and put in foster care. Two years later, he was still engaged in a court battle with the French government.
A German couple – Jan Balaz and Susan Anna Lohlad – had to fight a two-year legal battle before they were allowed to take their twin sons, Nikolas and Leonard, back home in 2008. The twins, born to an Indian surrogate in January 2008, became stateless citizens after Germany refused them visas because it doesn’t recognize children born through surrogacy.
The parents then appealed to the Gujarat High court, saying that since the children were born of an Indian surrogate, they were eligible for Indian citizenship. The Indian government refused to grant the twins Indian citizenship on the ground that they were born through a surrogate who had signed a contract relinquishing all rights over them. The case finally went to the Supreme Court.
Finally, Balaz and his wife had to adopt the children through the inter-country adoption process supervised by the Central Adoption Resources Agency (CARA). The Indian government heaved a huge sigh of relief, quickly arranged their exit permits and put them on their flight home to Germany.
Excerpted with the permission of Harper Collins India from “Baby Makers: A Story of Indian Surrogacy” by Gita Aravamudan