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.

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