It’s a typical day at the Akanksha infertility clinic in Anand, the Gujarat town synonymous with commercial surrogacy. More than a dozen-odd young and middle-aged women patiently wait for their turn to see IVF specialist, Dr Nayna Patel. A slim, young Caucasian woman stands out from the crowd as she quietly stares at a collage of news clippings on a board next to the reception. All of them eulogize Dr Patel with the latest one saying that her clinic has had ‘1001 babies’ born out of surrogacy.
The next few hours slip by with Patel attending to each person in the waiting room until finally she has the time to meet me. “This is just bizarre,” she says, visibly exhausted.
The ‘bizarre’ development is the recent notification by the Indian Council of Medical Research (ICMR) to ART clinics, disallowing foreigners from commissioning surrogates. The decision follows the 2012 directive by the Home Ministry banning gay couples from accessing surrogacy. Put together, the two decisions have created enough controversy about India’s unregulated ‘booming infertility tourism’ industry that hinges on the ‘exploitation’ of poor women who bear children for money. The mainstream discourse on the subject has often been polarized between two extreme positions - while some argue for women’s [both the surrogate mother’s and the infertile woman’s] right to ‘choose’ and make a case for their reproductive autonomy, others are pushing for a complete ban on the practice, which they believe is ‘exploitative’.
An adherent of the latter position, advocate Jayshree Wad is behind a recent PIL terming surrogacy contracts as “illegal, and violative of the fundamental rights guaranteed to the Indian Women under Article 21 of the Constitution of India”. The petition, filed in February this year, has resulted in the recent ICMR notification, and a fervent debate on the ethics of surrogacy arrangements.
Manju Pawar, 30, a first-time surrogate mother at Dr Patel’s dormitory for surrogates, says she had opted for a hysterectomy a few years ago. “I had two kids, a boy and a girl. Par beti off ho gayi (My daughter died),” she says. However, medical science has enabled for Manju to have kids for others. “If I can give someone a child, it’s a good deed... though people come here only if they have a [financial] problem. Why else would we do this?”
Like Manju, most of the surrogate mothers in the house - Patel runs several such dormitories in Anand - frame their responses about surrogacy in similar ways: a ‘good’ means to earn money to either buy a house, get their kids good education, ‘fix’ the money in a bank for future use and, in some cases, attend to a medical emergency in the family. “My husband is half-blind,” says Manju, who used to work in a sari shop before she took up surrogacy about seven months ago. At her old job, a 12-hour shift got her Rs 10,000 a month. Other residents, dressed in loose, flowy gowns, agree that surrogacy pays better than any of the other jobs that they can take on. A surrogate mother gets an assured Rs 4 lakh per child and 25% extra, in case of twins.
Unsurprisingly, many end up here for a second term. Farzana, 30, separated from her husband many years ago. With the money that she received from her first surrogacy, she bought some land in her village. The second time round, she plans to put the money in her daughter’s name. “My mother was a bit scared,” Farzana recounts. ‘Don’t go’, she said. But things are very expensive now. What can one do?”
Amina Bano, 26, who lives in another surrogate house close by, says she came here for her first surrogacy because she figured it was better than travelling to places as far as Goa to sell her eggs. “I would make about Rs 10,000 per trip. I have made several trips... at least 7-8. My husband drives an auto-rickshaw, and makes no more than Rs 4,000. So the money I make is useful,” she says.
Patel feels that poor women’s needs make a compelling reason for the government to reconsider the decision: “Surrogacy has helped many women build a house and move towards a more financially secure future. I want to ask critics who oppose surrogacy on grounds of ‘exploitation’: what can you do for these women? Can you get them a house; education for their kids? If not, at least don’t deny them the means to do so.”
The Assisted Reproductive Technology (Regulation) Bill, 2014 has been in the making for at least 10 years now. Despite several versions of the draft law, it is still a long way from becoming a law. Meanwhile, the last decade has seen the industry burgeon (a 2012 CII study claims 10,000 foreign couples visit India for surrogacy every year; the industry generates $2 billion a year), with transnational surrogacy and infertility services provided by clinics in India becoming popular globally because of the good quality, and the cheap prices. As a result, ART clinics have mushroomed around the country. But the industry (regulated only by guidelines that are not binding) has also been witness to several malpractices - multiple IVF cycles performed on surrogate mothers, indiscriminate ‘harvesting’ of oocytes or eggs, and the lack of a check on the potential health risks faced by women who offer the service. There have also been controversial cases such as that of Baby Manji in 2008 (where the divorce of the couple led to the baby eventually being adopted by her paternal grandmother), and of the Australian couple who left behind one of their twins because they already had a daughter, to name a few. However, industry professionals feel the decision of banning specific groups of foreign couples hardly addresses the problem. “How does the exploitation debate settle by disallowing only foreign couples, even as OCI (Overseas Citizenship of India) and PIOs (Person of Indian Origin) are allowed?” asks Delhi-based advocate Anurag Chawla of Surrogacy Laws India. Agrees Dr Patel: “Why punish everyone for the fault of a few others?”
In the dorms, Manju and other surrogate mothers, at various stages of their pregnancies, feel the ban will affect them the most. “With a foreign client, you can expect a good tip,” says Farzana, who got one lakh extra the last time she had a baby for an American couple. “Indians are not so generous,” says Manju, a tinge of disappointment in her voice, as her surrogacy is for an Indian couple.
In the ‘choice’ versus ‘exploitation’ debate, however, the complex realities of women’s experiences - the issue of fair compensation, proper working conditions, information about medical procedures and the potential health risks involved, and the lack of better employment opportunities that compel them to turn to surrogacy - are obfuscated. The layered reality of the women’s experiences demands a position that addresses these issues. Deepa V of the Delhi-based NGO Sama, a resource group for women’s health, says a more useful position stems from a feminist, women’s health perspective. “One of the big problems here is the way clinics deal with informed consent. Our studies have shown that women are seldom aware of the potential health risks that they are enduring while undergoing these procedures,” she says. Studies done by Sama have highlighted the possible risks of multiple pregnancies (more than one embryo is transferred to ensure pregnancy) as “increased miscarriage, obstetric complications, premature deliveries, and birth complications”, as well as risks associated with foetal reduction.
At the surrogate house in Gujarat, however, Manju tells me that she feels fine, except for some discomfort when she walks outside for too long. “In my earlier pregnancies, I barely had any problem. In fact, I never even realised when I delivered the baby! Maybe what I am feeling this time is because it’s hot outside,” she says, adding that she’s up for surrogacy only this once. “I don’t like it all that much here. I am a bit hot-tempered so I get into fights here. But maybe I will come back if there’s a [financial] problem.”
I ask Manju how she feels about those who feel that women such as her are ‘incubators’ working in a ‘baby factory’. “Machine hi toh hai (We are machines only) Don’t we work at home and outside too?” she says, as she rushes out after hearing that another surrogate mother has delivered a baby boy in the delivery room opposite their dorm. The nurse quickly whisks away the new-born. “She [the surrogate mother] won’t be seeing the child now. Attachment ho jayega na (She will develop feelings),” explains Seema (name changed), before another surrogate mother from the house asks her to go inside. “Her partywaale (commissioning couple) don’t like it if she sits out on the stairs or such,” Manju tells me. “Now, I am also leaving; I feel tired. I have to be careful, it’s someone else’s baby.”
Revisiting a surrogate mom
‘My kids still think i worked in a hospital’
I first met Diksha Budhathoki (then Gurung) in 2011. The young woman from Nepal was then a second-time surrogate mother and a resident of the surrogate home at Anand. Diksha is still as sprightly, despite her ill-health today. “I have learnt how to talk in the past four years. I feel more confident now,” she says. There’s more that has changed: Diksha calls herself a “single mother” now.
Six months ago, she also finished her term as a third-time surrogate mother. This time it was for a Russian couple. “I needed the money. There was some [financial] problem,” she says. Later in the conversation, she hints at the fact that the split with her husband was a financial setback too. He left with her money and the Toshiba laptop that a grateful Japanese couple had gifted her. She also sold her house a year ago and so has taken up surrogacy once again. “I wasn’t sure, but the Russian couple [whose baby she was taking care of as a nanny], insisted that I would be the best surrogate mother for them,” she says. It helped that in Diksha’s previous terms as a surrogate mother, she had gotten pregnant after the first embryo transfer.
Being a three-time surrogate mother has changed Diksha’s life. “I speak five [Indian] languages now, and I also have a job as a 24X7 nanny that pays me about 15,000 every month,” she says. With the money she is able to take care of her two sons, who are at a boarding school.
Diksha tells me that surrogacy is a good avenue for women like her. “We give happiness to people who don’t have kids. My last partywaale [commissioning couple] have been very nice to me, always eager to help,” she says. While some couples do not appreciate attempts by surrogate mothers to stay in touch after they have left with the baby, things have worked out well for Diksha. She dips into her bag and takes out a credit card that the Russian couple has given her. Like the other surrogate mothers, Diksha too feels foreigners shouldn’t be stopped from commissioning surrogacy. “They really take care of you,” she says.
Of course, the journey is not all that easy. “You are not a normal pregnant woman, you are a surrogate mother; it’s a responsibility. You cannot roam around just like that. It’s somebody else’s baby,” she says. And then there are the progesterone tablets and injections, and a battery of multi-vitamins to be had at regular intervals. Initially, it’s also difficult to stay away from family, but gradually “you get used to it.” Being away also means inventing plausible explanations for the children.
“I just told them I am staying in a hospital. My younger one believed me. But the older son was quiet. Maybe, he got it. He never asked me again. I will tell them when they are old enough.”
The legal position
Several clauses of the Assisted Reproductive Technology (Regulation) Bill, 2014 have sparked debate.
1 The latest draft of the ART Bill, 2014 has a few important clauses pertaining to women selling their services (surrogacy, egg donation). It restricts the number of times that a woman can undergo surrogacy to one live birth. This is in sharp contrast to the earlier versions that allowed a woman five live births, including that of her own children. “Restricting it to one live birth does not mean that the woman will not be subjected to multiple IVF cycles to ensure that one live birth,” feels Deepa V of Sama Resource Group for Women’s Health.
2 Other clauses include placing the onus of any kind of mishaps on the clinics, and holding them accountable in case of a death or disability as positives, says Deepa.
3 One of the biggest drawbacks of the Bill is the clause that says only married couples can access surrogacy, as opposed to the new adoption rules allowing single parents to adopt. “This just suggests a narrow, patriarchal understanding of parenthood. Also, the Bill says that egg donors have to be married, while sperm donors needn’t be. “
4 Surrogate mothers cannot have ‘unprotected’ sex with their husbands. They and their husbands are also prohibited from extra-marital affairs. Deepa says this impinges on their autonomy.
5 There are other clauses that the Sama activist feels are problematic - one that allows clinics to disclose characteristics of the surrogate/donor. This could have implications on choosing the caste, colour and educational qualifications of the donor/surrogate. More importantly, she says that monitoring of the procedures will remain a challenge.
6 Delhi-based advocate Anurag Chawla of Surrogacy Laws India feels that the big problem in the Bill remains the “discrimination” between foreign couples, who cannot access surrogacy, and PIOs, OCIs and foreigners married to Indian citizens, who are allowed to do so. “If the idea is to stop unethical practices, how will banning one group help the cause?” he asks, pointing out that the Bill states that compensation paid by Indian couples would be different from that paid by OCI, PIO or NRI, and a foreigner married to an Indian citizen.