Global Surrogacy in India: Legal, Ethical and Human Rights Implications of a Growing “Industry”

Nicole Bromfield

Gestational surrogacy, the latest trend in reproductive tourism, a sub-industry of medical tourism, has increased exponentially over the last several years as Americans, Europeans and others seek out surrogacy services abroad.  But neither the legal nor the ethical implications of these arrangements has been well-considered.

In 1998, the dramatic custody battle over Baby M, a child produced through a gestational surrogacy arrangement, gripped the nation.  Since that time, tighter restrictions on international child adoption along with a surge in medical tourism, the acceptance of alternatives in family building in Western societies, the trend of women delaying motherhood until well into their thirties, and the lack of laws regulating surrogacy have contributed to a boom in global surrogacy.  But the contexts of poverty and gender inequality in which these trends are taking place underscore the troubling elements of international surrogacy as a family-building strategy. 

Gestational surrogacy, the latest trend in reproductive tourism, a sub-industry of medical tourism, has increased exponentially over the last several years as Americans, Europeans and others seek out surrogacy services abroad. Advances in assisted reproductive technology (ART) have made gestational surrogacy more viable than reproductive endocrinologists and other fertility specialists thought imaginable just twenty years ago. Unlike in traditional surrogacy, in which the surrogate’s own oocyte is fertilized by the intended father’s sperm and can lead to legal and other complications with parenthood and adoption (such as in the Baby M case), in gestational surrogacy another’s oocyte (such as from the intended mother or an anonymous donor) is fertilized and then transferred to the gestational surrogate, eliminating genetic ties between the surrogate and the baby she is carrying. In-vitro fertilization, (IVF) in which a woman’s oocyte is fertilized outside of the womb in a laboratory setting and then transferred to a gestational carrier’s uterus, has made the option of gestational surrogacy viable for women experiencing infertility, gay couples, and single men.

India has taken advantage of the medical tourism surge in general and is at the forefront of the global surrogacy market. Surrogacy which was legalized in 2002 but remains unregulated, is now estimated to already be a $445 million a year business in India. It is estimated that there are over 350 clinics offering fertility services to couples from all over the world traveling to India to take advantage of the affordable and legally painless surrogacy options. Many of these couples are citizens of countries where surrogacy is either illegal or unaffordable.  Surrogacy costs about $12,000 to $20,000 per birth in India, whereas in the U.S., it is upwards of $70,000 to $100,000. One Indian clinic that was featured on Oprah was touted on the show as creating a win-win situation for both the childless families requiring the services of the surrogate and for the gestational surrogates themselves, who are mostly poor rural woman in dire need of income. Indian surrogates are usually paid between $5,000 to $7,000 for their services, which is more than many of them would be able to earn after years of work. 

With the rise of global surrogacy in India, scholars and journalists have begun to voice concerns regarding the ethics of the practice, especially considering it is unregulated and open to exploitive situations. In some of the Indian clinics, the surrogates are recruited from rural villages, with most recruits being poor and illiterate. Surrogacy recruits are brought to the clinics where they are required to stay in the clinic’s living quarters in a guarded dormitory-like setting for the entire pregnancy. Supposedly this practice not only allows the clinics to monitor the surrogates’ activities and behaviors during the pregnancy, but also is seen as protecting the surrogate from ridicule by family members and neighbors; most Indian women acting as surrogates keep it a secret because it is seen as dirty or immoral. What is alarming about the recruiting process is that it is notably similar to the recruitment process used by human traffickers to coerce rural women into sex work in cities. Also similar to other trafficking situations, the women have to sign documents (often in English) that they cannot read and then are kept “under lock and key” until the obligations set forth in the contract are fulfilled. Most surrogacy contracts prohibit sexual contact between surrogates and their husbands and surrogates are generally allowed only minimal contact with their partners in any case.

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In one Indian surrogacy case, mentioned in Mother Jones, an Indian surrogate died after giving birth.  The woman began hemorrhaging, and the clinic was not able to control her bleeding.  The young surrogate’s husband was called to get an ambulance and accompany his wife to the hospital.  She died en route.  The clinic refused to accept any responsibility for her death.

Other concerns raised include the “renting” of Indian women’s bodies by westerners, the lack of counseling services available to surrogates after the relinquishment of their gestational babies, the use of mandated and scheduled c-sections by clinics, which allows clinics to schedule quick deliveries and enable the intended parents to pick their child’s birthday, among other issues.

Not only are there ethical concerns related to the global surrogacy market, but there are legal concerns, as well. There have been several well-publicized cases in which babies born from Indian surrogacy arrangements were stateless, in which neither India nor the parents’ home countries recognized the babies’ citizenship. One case from 2008, referred to as the Baby Manji case  involved a Japanese couple who contracted with an Indian gestational surrogate and an anonymous oocyte donor. The couple divorced and the contracted mother was no longer interested in parenting the infant. The genetic father of the baby was not able to secure a Japanese passport for the infant because Japan considers the woman who gives birth to a baby, in this case the surrogate, to be the baby’s mother. India does not allow single men to adopt babies, but Indian law required the Japanese father to adopt the baby since the baby could not be issued a Japanese passport. Eventually, the Indian government issued the baby an identity certificate but no passport and the Japanese issued a temporary visa. The baby’s Japanese grandmother eventually adopted the baby.  

In another case receiving media attention, the German Balaz family used a gestational surrogate with an oocyte donor and had twins in 2008. The twins had birth certificates issued by the Indian government with the intended parents listed on them. The German government does not recognize surrogacy, so in this case, the parents were not able to secure German passports for the twins. The Indian government had issued the twins Indian passports but when they found out that the twins were a product of a surrogacy arrangement, the government asked for the Balaz family to return the passports, rendering the twins stateless. The Indian government finally agreed to issue travel documents, but no passports for the twins to leave India so that adoption proceedings could take place in Germany. Eventually the German government granted the babies visas so that they could travel from India to Germany to be legally adopted by their German parents.

The picture of global surrogacy is extraordinarily complicated when one considers the different combinations of lineage, citizenship, ethnicity, and parentage combinations that are possible. For example, intended mother’s oocyte with intended father’s sperm, intended mother’s oocyte with donor sperm, surrogate mother’s oocyte with intended father’s sperm, surrogate mother’s oocyte with donor sperm, donor oocyte with intended father’s sperm, or donor oocyte with donor sperm. In all of these combinations, the oocytes and sperm may be from people of multiple nationalities and ethnicities. Considering that parentage is commonly defined by biological terms, the consequences to the offspring of babies who are products of a surrogacy arrangement remain to be seen.

These ethical dilemmas and legal quagmires are a starting place for discourse. However, it is imperative that global standards be developed and the USA, European, and other nations take an active role in setting requirements. This can be done under rights of citizenship and immigration. The past has proven that governments tend to be slow to respond and preventive planning is essential to curb abuses and ensure the rights all involved—surrogate mothers, children, and the contracting individuals and couples.

Marketing Global Surrogacy—the Oprah Factor

Karen Smith Rotabi

On her show, Oprah presented global surrogacy as a promising practice, spotlighting a US family that obtained their baby through medical tourism in India. But she left out the social complexities involved.

Read more about surrogacy.

The rising trend of global surrogacy and the troubling implications leaves one to consider how the idea of outsourcing pregnancy to poor women in nations like India, Eastern Europe, and Guatemala is perceived by ordinary Americans. When one considers the fact that the countries where the practice is taking off have infamous reputations for human trafficking, the practice is not without complications. It is important to begin careful discourse and policy planning for regulation.

We must begin with looking back when surrogacy first emerged as a concept, it was pitched as a technological solution to infertility. However, the press followed the famous “Baby M” case in which custody of the child in question was fought over in the courtroom when the surrogate mother changed her mind about the original contract. Between this sensationalized story and the fact that surrogacy can cost from $50,000 upwards, it has not been a strategy used en masse by middle class individuals or couples.

However, Oprah Winfrey presented global surrogacy as a promising practice, spotlighting a US family that had successfully obtained their infant through medical tourism in India.  The Oprah factor inevitably raised the general consciousness about using a woman/surrogate in developing nations to carry out the pregnancy and it was potentially a catalyst moment—marketing the idea as an extraordinary opportunity and win-win for all involved.

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Unfortunately, Oprah’s discourse did not include the complexity and intersections of the social realities involved, especially the reality of poor and vulnerable women. Oprah failed to explore ideas of informed consent or if women living in oppressive conditions of poverty can even make such consent when enticed with money. And, one has to wonder if Oprah is aware of the fact that women who act as global surrogates often live under lock and key while pregnant—in pregnancy camps of sorts—and they face shame and stigma in their home communities. Pande (2009) interviewed surrogate mothers in India and identified the practice as “dirty work” and found that the technology is not truly understood by most people, including the surrogate mothers themselves.

Oprah also failed to acknowledge that many surrogate mothers in India deliver children by C-Section. This medical procedure is not carried out without significant risks, especially from infection in the short term. In the long term, it creates problems for women in subsequent pregnancies—especially natural delivery of future babies. Take that fact and think about the average Indian and poor surrogate mother who will not have such easy access to future C-section care due to poverty. Who knows how many women have suffered the fate of significant health problems and even death in India after they deliver their surrogate babies. Of course, nobody is counting because at the end of the day poor women die in developing nations every day from reproductive health problems—and now surrogacy will further complicate this unfortunate reality.

Without a doubt, Oprah Winfrey has been a champion of women and the rights of women and children—shining the light on sexual abuse and other issues, often confronting stigma. She has also been an important voice in development of opportunity for women, a symbol of success herself. She has committed to girl’s education in Africa and her generosity runs deep, taking interest in the young women attending her school in South Africa. However, on surrogacy she got it wrong. I have a fantasized idea that she may actually reconsider her position and document the other side of the story with careful attention to women in developing nations and the aforementioned complexities. This could be a good documentary for her new television network.  Then, the Oprah Factor can be used to truly explore the issue, from all sides, and help move along the discourse about the need for international regulation to insure prevention of human rights abuses in the emergent global surrogacy marketplace.

Book Review: The Globalization of Motherhood

Sharon Lerner

If you’ve read much science-fiction, you’re probably familiar with the idea that, at some scary point in the future, various aspects of mothering will be separated, enabling wealthy women to farm out component tasks to less-privileged women. That day is here. 

If you’ve read much science-fiction, you’re probably familiar with the idea that, at some scary point in the future, the various aspects of mothering will be separated, enabling wealthy women to farm out the component tasks to less privileged women. The Globalization of Motherhood: Deconstructions and reconstructions of biology and care (Routledge, 2010) makes it clear that that day has already come. With a focus on cross-border movement in the areas of domestic labor, adoption, and assisted reproduction, the book shows that the individual tasks that used to be bundled as motherhood have been dispersed to women scattered throughout the world and stratified by race and class. The dismantling of motherhood as we once knew it is no longer a paranoid futuristic fantasy, but rather a mostly dystopic reality.

The collection of academic essays edited by Wendy Chavkin and JaneMaree Maher, professors, respectively, of public health and women’s studies, lays out a big, breathtaking picture that’s most startling in its details. Take the Indian town of Anand, once famous for its dairy cooperative, which is now the “global surrogacy capital of India.” Or simply consider that women across India now collectively earn more than $450 million per year as gestational surrogates. Then there’s the fact that a Sri Lankan domestic worker considers the facility where she leaves her child while she cares for another family in Athens to be a “boarding school,” while Western parents interested in adopting children from that institution understand it to be an “orphanage.” And the complicated emotional reality of a young woman, born to Ethiopian parents and adopted by a Swedish couple, which reunites with her biological parents as an adult and decides that, “It doesn’t matter that we have been away from them for more than 20 years, because they gave birth to us and we are there children.” Or the Thai clinic’s website, which offers visitors this greeting: “Welcome to IVF Thailand: Combining a great holiday with IVF!” The anecdotes beg repeating as windows onto this bizarre moment, when technologies are seeping into the globalized world in advance of much planning or regulation.

Some of the most memorable stories emerge in a chapter about couples who travel to and through Dubai as “reproductive tourists.” In one example, a Syrian woman who had come from Lebanon for fertility treatment worries about having a Hindu, as opposed to a Muslim, doctor, even as she has a child in the care of a Filipina (non-Muslim) nanny. In another, a Sunni Muslim couple goes to Beirut (where there is a Shia majority) for egg donation, since that practice – along with sperm donation, embryo donation and gestational surrogacy, has been banned by a fatwa in Sunni-dominated Muslim countries. The couple then seeks the eggs of a mid-Western, white American because, as the father-to-be explains it, “I want a white baby to look like me.”

The Globalization of Motherhood (an academic text, which with a cover price of $125, is likely to be most widely read in the classroom), does a great service in documenting these stories, which remain largely unexplored in the mainstream media. In the end, though, the book’s greater contribution is discerning patterns and significance among such intriguing specifics. The bigger picture that emerges is one of new technologies generally exacerbating existing global inequities, with privileged women often relying on less-privileged women for their reproductive services, body parts, and labor (both in the traditional and child-birthing sense). Together, the essays make the disturbing case that the progress of women in developed countries has been made possible, in part, by the services, or perhaps exploitation, of other groups of women.

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But, the sociologists, lawyers, demographers and social theorists contributing to this volume largely stay away from blame, instead describing and dispassionately analyzing the global trends that have led women in the developed world into their particular relationship with motherhood. Chavkin’s introductory essay is especially helpful on this front, pulling out the structural forces that have led many women to delay childbearing – and have thus brought on the “fertility crisis” that’s spawned the growth of international surrogacy and reproductive tourism. Among these, she lists “the pressure on women in advanced economies to obtain education and secure employment first; the shortage of housing and social supports for young couples, the delay, the decline and the precariousness of marriage.”

None of these facts of modern, developed life will be reversed any time soon. Nor should anyone expect the technologies that have shaped the new globalized motherhood to go back in their bag. Instead, we’ll have to use existing international human rights tools to address the injustices that have sprung up in the process a strategy Joanne Csete and Reilly Anne Willis smartly outline in their chapter. Before that can happen, though, we’ll need a full and nuanced understanding of the problem. Luckily, The Globalization of Motherhood has already achieved that critical first step.