It's early morning in the mid western state of Ohio in the US, but Michael Morris (name changed on request), 54, is excited to talk about his "India experience". About six months ago, Michael and his wife, in her early 50s, had a daughter through a surrogate mother in Delhi. "The medical aspect was first rate; we were able to see the surrogate mother, she was healthy; everything went well," Michael tells me over the phone, before pausing and adding, "I know many people would not have had an experience like ours. But there are reasons for that."
For one, Michael says he had travelled through Asia before, and so, unlike "other Westerners", wasn't "intimidated" by the country and "the way things work here". More importantly, Michael says the couple had a "great facilitator" who arranged everything from the drive from the airport to a good IVF clinic in India. "Having a baby in international surrogacy is much like dealing in the stock market; if I know I have a million dollars to invest, I need to go to a good broker," he says.
For many, however, the 'investment' in transnational surrogacy has hardly brought the desirable 'returns': recently, an American gay couple who had hired a surrogate in Delhi found out that one of their twins had STD; in 2011, an Australian couple found out after a DNA test that the baby they were about to take home wasn't theirs. Last year, yet another Australian couple decided that they could only afford to take one of the twins born out of surrogacy. Their decision to abandon one of the babies rendered the baby boy "stateless". Earlier this year, Australians were barred from pursuing commercial surrogacy in India.
STATE OF LAWLESSNESS
In the booming business of gestational surrogacy in India, where IVF clinics promise "five-star medical facilities", "high success rates" and "extensive choice" for infertile couples, stories of DNA mismatches and abandoned babies, and several unscrupulous practices being followed by IVF clinics only seem to suggest that commercial surrogacy in the country is almost in a state of lawlessness.
The 'dystopia' can be put down to a rapid, and unregulated growth in the number of IVF clinics offering a range of infertility services - quoting the National Commission for Women's statistics, a 2012 study by the Delhi-based NGO Sama Resource Group for Women and Health states that there are about 3,000 fertility clinics in India. The absence of regulation is also evident from a recent notice served by the National Human Rights Commission to the Union Health Ministry and Indian Council of Medical Research (ICMR) - the notice states that, in Delhi alone, out of the 300 clinics, only 39 are registered with the ICMR. While those within the industry concede that the demand for infertility services is rising in the domestic sector as well, a substantial chunk of the surrogacy market is dominated by clients from countries such as the United States, Australia, Israel and Japan. The money is big, and monitoring and regulation, lax. "Many IVF clinics are making their own rules, and existing guidelines are routinely being flouted," says Delhi-based advocate Anurag Chawla, who heads the firm Surrogacy Laws India.
Even as the Assisted Reproductive Technology (Regulation) Bill, 2010, is still to be passed in the Parliament - the Bill has been in the making for at least five years now - the industry is currently governed by a set of guidelines, which are not legally binding. Consequently, there's no monitoring mechanism, argues Chawla, leaving the field fertile for many clinics to resort to unscrupulous practices.
Chawla says that at the clinic of a certain South-Delhi doctor, one of the standard practices entail introducing a single surrogate mother to multiple commissioning parents. "After the surrogate mother would be impregnated with one of the couple's embryos, others would be told that the embryo transfer for their surrogate mother had failed. The clients would then be told that they needed to pay up for another IVF cycle. "Several unsuspecting couples would be duped this way because they had no way of knowing what really happened," says Chawla. The clinic, he says, is also known to have "faked complications" in the surrogate mothers' pregnancies to make the commissioning parents cough up more money.
Then, in 2012, for instance, the Home Ministry barred gay couples and singles from abroad to enter into surrogacy arrangements in India. "The ban led to a shift in business to countries such as Greece, Mexico, Cambodia, and Nepal. It's unfortunate that while the Supreme Court in the US has allowed gay marriage, India is still discriminating against single people and gay couples in terms of being able to access surrogacy," says Maryland-based Crystal Travis, who runs the World of Surrogacy, one of whose clients was Ohio-based Michael and his wife.
Travis, mother to two children born out of surrogacy in Gujarat, says that aside of dealing with this "discrimination", Indian policymakers also need to sit down with officials from other countries to ensure that legal requirements for children born out of surrogacy are standardized. This, she says, would save commissioning parents a lot of hassle, and prevent the babies from landing in a legal mess by accounting for their rights as well.
"While India puts the name of both the parents (including the non-genetic link) on the birth certificate, there have been cases where countries recognise only the genetic link. In such cases, the parents have had to adopt their own children, which is very offensive for them. Legal complications in a country such as the US has also given rise to situations where a couple splits before the child is born, and it leads to a complicated custody battle for the parent that is not genetically linked to the baby," says Travis.
Meanwhile, post the ban, Travis says she has had to move her surrogacy work to Mexico, but some Indian clinics "desperate" to host clients from countries such as Australia and Israel, did shift operations to Thailand (using Thai surrogates) and eventually, Nepal. Earlier this year, however, Thailand outlawed commercial surrogacy - because of the controversial case of a Japanese man fathering at least 15 children using different Thai surrogates.
The shift to Nepal was easy: Indian surrogate mothers could be transported across the border because Nepal doesn't allow its women to act as surrogates. Besides, in Nepal it is easy to get exit visas for the babies born out of surrogacy. "The clinics would have the gay couple arrive on a tourist visa [as opposed to a mandatory medical visa], take their samples, select the donors, and then leave. The embryo transfer would happen either in India or Nepal. The surrogate would be shifted to Nepal after a few months, and the delivery would take place in Nepal," says Chawla. This shift made international news after the Nepal earthquake and the subsequent evacuation of the Israeli gay couples and the babies, leaving the surrogate mothers behind.
A Delhi-based infertility specialist, who did not wish to be named, insists that all IVF clinics are not unscrupulous. In her experience, international clients can be difficult to deal with too. "One international couple didn't pay up for the services; they pulled a credit card fraud on us. After that, I just stopped doing surrogacy for foreigners. Most of my clients are domestic now. But I do know of several clinics doing surrogacy for gay couples from Australia and Israel in Nepal. They tell the women that all they need is a voter ID card, and they are good to travel to Kathmandu!"
In this messy state of affairs, however, it is the women who do the labour of surrogacy and egg donation - in an arrangement where they don't have enough power to negotiate terms or have access to enough information about the medical procedures - who perhaps stand to lose the most.
In their zeal to produce results, many clinics are known to put the health of the surrogate mothers at risk. Those within the industry concede that there are instances of IVF clinics "timing births" to suit the convenience of foreign clients (by timing the C-section).
Another practice that many clinics are known to indulge in is multiple embryo transfers - up to nine (as opposed to three, according to the ART guidelines). The subsequent foetal reductions are associated with health risks for the surrogate mother, which the women themselves are
seldom aware of.
Living conditions of the surrogate mothers is also a big concern, says Chawla. Inside the Delhi High Court, Chawla sits in his chambers that he shares with another lawyer. He points to the room, and tells me that he has seen 10-20 surrogate mothers in a room "smaller than this" and being made to wait at the IVF clinic for several hours for routine tests.
There are also instances of discrepancies in payments being made to the surrogate mothers, and those that the commissioning parents believe is being paid to the former. Clients are charged much more for twins, while the surrogate mother is only given Rs 50,000 extra.
Deep Singh, who heads a Delhi-based ART bank says that with the rising demand for infertility services and a proliferation of service providers, the market is only set to get messier. "Now, even those from smaller towns such as Hapur are getting interested in hiring surrogate mothers. Today, in a year, my agency could be handling 30-40 cases in Delhi alone," says Singh.
Newer clinics and ART banks are only inclined to make a quick buck. "Many are not even willing to wait it out so that the egg donors can be tested for diseases. There have been cases of HIV positive status being detected after the donation." Singh says that certain clinics and ART banks don't care to explain to women who are donating their eggs that they cannot undergo the procedure repeatedly because of potential health risks from injecting hormones.
The situation, it seems, is getting to some such as Singh. "This business has given me a lot of money; it's changed my life. I have been able to afford the things I could never have. But the way things are unfolding now, I will quit this industry soon. Next, I plan to start a dairy business," he says.