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Analysing Surrogacy practices in India

Analysing Surrogacy practices in India

Miha Alam

Sharp growth in surrogacy in India has drawn sharp attention and raised several ethical concerns. Globally, 15% of the couples around the world are infertile, making infertility one of the most highly prevalent medical problems (Balla, 2013). Due to advances in medical technologies, today 85% of the infertility cases can be taken care of through medicines, surgery or through medical technologies such as In-Vitro Fertilization (IVF) or Intra-Cytoplasmic Sperm Injection (ICSI) (Balla, 2013). This has been made possible through surrogacy, wherein the womb of another woman is hired/rented to conceive and give birth to a child for the infertile couple (Shah, 2009). The developing countries such as India offer a much cheaper platform for such medical tourism industry. Ultimately, the surrogates in India are dragged into womb labor due to their poor socio-economic status (Pande, 2010). Increasing numbers of infertile couples from US, UK, Japan and other countries are looking for surrogate mothers in India, where cheaper services are an attractive incentive for those exploring surrogacy as a fertility option (Pande, 2010). Due to rapidly globalizing world, the surrogacy business is becoming highly competitive which has driven the rent for wombs from USD$20,000 (2005) to USD$5000 (2010) (Ramesh, 2006). Cheap commercial surrogacy paired with lack of regulatory laws makes India the Mecca for surrogacy. While the Indian Council of Medical Research and the government aggressively pursued the development of the surrogacy department, bioethicists, feminists and civil rights activists started confronting surrogacy practices on the basis of ethics, morality, exploitation and rights (Neetha, 2016). Over the years, many journalists have highlighted instances of red tape, lack of medical care of surrogates, exploitation and violation of reproductive rights of surrogates. This essay introduces the current surrogate landscape in India, highlights the lack of regulations, discusses exploitation of reproductive labor given the lack of alternative economic opportunities for the poor, highlight the extensive medicalization of pregnancies within the surrogacy practices which otherwise is absent and lastly, discusses violation of reproductive rights of surrogates. Ultimately, this essay asserts that the current surrogacy practices and arrangements in India are highly problematic and need to be resolved with comprehensive legislations that cater to the welfare of surrogates and the surrogate children.

In 2002, the Confederation of Indian Industry (CII) published a study stating that India had the potential to develop its medical tourism sector and become a global health destination. Soon after, India legalized commercial surrogacy (Chang, 2009). The medical tourism industry grew rapidly and the number of medical tourists increased from 150,000 in 2005 to 450,000 in 2008 (Chinai & Goswami, 2008). The surrogacy sector became of the largest service sector as the estimated revenue was approximately $30 billion in total and contributed to 5% of the GDP. The number of fertility clinics increased to 6000 within the last decade (Ramesh, 2006). Till date, approximately 40,000 surrogate children are born in India (Niazi, 2007). India has grown rapidly within the realm of medical tourism because of its low cost, easy legislations and English-speaking doctors (Shah, 2009). Most medical tourists in India are rich foreigners from America, Australia and Europe (Shah, 2009). The 6000 fertility clinics are located in urban as well as rural areas; however, they are mostly located in few states in India such as Gujarat, Bhopal, Surat and Anandnagar (Smerdon, 2008). The strongest incentive for foreigners to travel to India is the relatively low costs involved  - the fees for surrogates are reported to range from $2,500 to $7,000 which is a lot less than what is paid in the United States. In the US, the rates fluctuate between $59,000 and $80,000 (Sharma, 2008). On average, most Indian surrogate mothers are paid in installments over a period of 9 months (Sharma, 2008). If they are unable to conceive they are often not paid at all and sometimes they must forfeit a portion of their fee if they miscarry (Wimalasundera, 2003). Additionally, relaxed laws such as hospitals receiving financial incentives and low interest rates on medical equipment and intended parents getting 12-month visa if they opting for surrogacy makes India favorable destination (Smerdon, 2008). Most surrogates come from low socio-economic background, are married and are in dire need of money (Pande, 2010). The money is usually spent on dowry, house down payment, education of the children or medical treatment. In general, the surrogates lack social safety nets (Niazi, 2007). Lastly, lesser language barrier, no waiting for treatment period and accomplished medical staff all gives India an edge when it comes to surrogacy (Niazi, 2007).

This article highlights the copious medical, physical, ethical, moral and emotional issues that are involved in the surrogacy arrangement in India. These aspects are usually discussed in silos and need to be discussed in an interdisciplinary way so that comprehensive legislations can be formulated that curb the unfair practices. Previous literature mentions that women typically have regretted their decision to become surrogates (Ciccarelli, 1997). Blyth (1994) found out that 25% of women reported experiencing significant emotional distress such as depression, stress, and anxiety in giving up the child. Over 40% of respondents in Ciccarelli’s study reported having lost a relationship as a result of surrogacy (1997). Several studies have found that surrogates tend to form a relationship with the commissioning couple rather than the fetus (Baslington, 2002; Ciccarelli, 1997; Hohman & Hagan, 2001; Ragone, 1996). Hohman and Hagan (2001) found that surrogate satisfaction was dependant on relationship with the couple. Lack of legislations on circumstances such as what happens if the surrogate mother changes her mind and refuses to hand over the baby or blackmails for custody? Who will take the responsibility of the child if the commissioning parents refuse to take the child? What would happen if the child is born disabled? What would happen if the sex of the child is not to the liking of the commissioning parents? presents risks and are detrimental to the wellbeing of the surrogate and the surrogate baby (Palattiyil, 2010). Not many studies have investigated these issues in the Indian or the Global South context (Palattiyil, 2010). Reporting of malpractices in surrogacy in India has remained at the journalistic level (Rotahi et. al., 2012). Very little empirical evidence exists around the effects of surrogacy on the woman’s health, family, and other social contexts (Parks, 2010). Similarly, very little research has examined Indian women’s decision-making process to become surrogates (Palattiyil, 2010). There is a dire need for a comprehensive study that outlines how problematic the surrogacy landscape is in India and presents legislations for combating and controlling the use and misuse of surrogacy practices.  

Supporters of surrogacy establish that surrogacy is a natural extension of woman’s reproductive rights and autonomy (Pande, 2009). If women have the right to make her own decisions and exercise reproductive rights, then a woman should be able to freely sell productive labor for wages (Pande, 2009). That being said, looking at surrogacy in the Indian context paints a different story all together. Surrogacy in India is fabricated on the basis of exploitation of the poor since the surrogates do not really have freedom of choice. It is assumed that there is an equal exchange – money paid for the service (Pande, 2009). However, this is far from true. This exchange is unequal and favors the financially secure party. It hides the social class issues that make surrogacy in India so easy (Rajendra, 2015). The practice of surrogacy exploits women economically, emotionally and physically. As mentioned before, most surrogates come from really poor socio-economic background and become surrogates because of the monetary/ economic factor (Pande, 2010). They are illiterate and usually married to unemployed men (Pande, 2010). Further, these women also come from societies where women are discriminated and discouraged from employment opportunities (Ramesh, 2006). Surrogacy is often looked as an alternative way of raising money to pay dowries, children’s education, or medical reasons (Pande, 2009). Simply put, the monetary gain via surrogacy becomes a glaring survival strategy for the poor women. Additionally, Horsburgh (1993) explains that surrogates are physically exploited based on poor consent models and health risks that are not clearly communicated. If there is a reason to abort the fetus because of medical reasons or client‘s demands, the surrogate mother must comply. To make matters worse, if the pregnancy is aborted, the surrogates receive just a fraction of the original payment (Horsburgh, 1993). Most of the surrogate mothers sign contracts agreeing that even if they are seriously injured during the later stages of pregnancy, or suffer any life-threatening illness, they will be sustained with ‘life-support equipment’ to protect the fetus (Horsburgh, 1993). The medical practitioners involved are only interested in delivering the end-product (surrogate child) (Horsburgh, 1993). If a conflict arises, the surrogate cannot really help herself because surrgoates are often unaware of their legal rights and neither can they afford lawyers (Horsburgh, 1993). It is clear that the surrogates have zero control over their pregnancies and cannot really exercise any reproductive rights. Hence, it is debatable whether women are choosing to become surrogates out of free will or that this will is socially and economically constructed (Pande, 2009). To use someone’s desperation in order to leverage a child is definitely coined as exploitation in the Indian context.

The reproductive rights and medical care that is available to a common woman and to a surrogate is vastly different. The World Health Organization clearly said that reproductive rights are indivisible part of all human rights and fundamental freedoms (WHO report, 1995). Integral aspects of reproductive rights include the right to safe abortion, the right to birth control, the right to quality reproductive health care, the right to education, and the right to make reproductive choices free from discrimination and violence (WHO report, 1995). Given all these reproductive rights, there is a paradox in India. This paradox is that while common Indian women are deprived of these basic rights, the surrogates receive best treatment because of commoditization of their pregnancies (Pikee, 2012). India’s maternal mortality rate is one of the highest in the world (63,000 deaths per year) (World Bank, 2010). There are huge discrepancies in terms of who receive medical facilities given economic and social inequalities in the society (Dhar, 2009). Only 53% of women give birth with assistance of a skilled attendant and only 47% of births happen in a hospital setting (Dhar, 2009). Unlike the deplorable status of reproductive health amenities for common Indian women, surrogates receive best treatment and facilities due to the commercialization of pregnancies (Jyotsna, 2000). While getting best treatment may be looked at as generosity, surrogacy usually involves heavy medical regimen (Jyotsna, 2000). In this way, while common Indian women do not have access to reproductive healthcare, surrogate pregnancies are highly medicalized which is also violation of reproductive rights. Surrogates do not have autonomy over their pregnancies because of commodification of pregnancy. A study investigates reproductive health care provided to surrogates in 5 top class and popular fertility clinics in Gujarat, India (Dolnick, 2007). The study explains that Suman Dodia, a surrogate carried a British couple’s child. She had her own three children at home and never visited a doctor but as a surrogate, she had a team of maids, cooks, and doctors looking after her (Dolnick, 2007). “It is very different with medicine. I’m being more careful now than I was with my own pregnancies,” said Dodia (Dolnick, 2007). Another surrogate explains that when she was pregnant with her own children, she ate the same food as everyone else in the house (Dolnick, 2007). However, now that she is a surrogate, she is on a special diet that includes more milk, eggs, and fruit. She also takes vitamin tablets three times a day and gets ample rest (Dolnick, 2007). It is clear that surrogacy clinics provide some of the best facilities to the surrogates to monitor the pregnancy. These top quality services include regular examination at institutional level, routine ultrasound monitoring to assess the fetal growth, routine tests like CBC, urine, HIV, and blood at monthly intervals and triple marker tests to rule out any genetic anomaly (Dolnick, 2007). Along with this, malformation scans are also done in the first and second trimester and the required vaccinations are also provided in a timely manner (Dolnick, 2007). As illustrated in examples above, surrogates have to follow really stringent medical regimens. The suitability of the surrogate’s body for this pregnancy is evaluated by a thorough examination and by various tests to check the hormone levels and uterine lining (Dolnick, 2007). All decisions pertaining to the surrogacy are taken mainly by the clinic, doctors and the commissioning parents. The surrogate is sidelined from these decisions (Dolnick, 2007). Further, most surrogates are given injections to stop them from lactating after giving birth which has serious side effects, ranging from dizziness and nausea to hair loss and such (Dolnick, 2007). In terms of post delivery care, there are no proactive steps taken by the doctors/clinics in following up with the surrogates (Dolnick, 2007). Moreover, various aspects of their daily lives such as diet, sexual behavior, mobility and work became extremely regulated and controlled (Dolnick, 2007). There have been instances where the commissioning parents insisted the surrogate to take medicines to prevent any conception between the surrogate and her husband during sex (Dolnick, 2007). For the healthy growth of the fetus, the surrogates were asked to eat specific foods according to a prescribed diet. Lastly, it is often assumed that the surrogates will be negligent about their pregnancies due to their low socio-economic backgrounds and ‘low education levels’. This ultimately ends up justifying extreme surveillance (Dolnick, 2007). Doctors and commissioning parents are also suspicious about the surrogate’ intensions; they hypothesize that she does not care about the child since it is not her ‘own’. Due to such mundane factors, the doctors exercise control over all aspects of the surrogates’ lives to avoid any monetary loss (Dolnick, 2007). Ultimately, it is evident that although surrogates may enjoy high class service and reproductive healthcare, which they didn’t have access to during their own personal pregnancies, they don’t have any reproductive rights as a surrogate. They are willing to give up the autonomy over their pregnancy and their body during surrogacy because of the monetary benefit.  

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