Surrogacy in India
A healthy controversy?
The incidence of surrogacy is increasing in India, contributing to fertility
tourism in the country. However, this still remains a contentious subject.
Here are some expert opinions that clarify many of the questions about
surrogacy in India.
Dr Asma Mohd Yousuf
he term ‘surrogate’ was quite uncommon in the last decade, but this is not
the case anymore. As a matter of fact, surrogacy was not uncommon in the
past either, but was not much spoken about then. In India, commercial
surrogacy was legalised in 2002 by the Supreme Court of India. Since then,
India, besides tourism, has become a preferred destination for many to fulﬁll their
parenthood dreams. However, the legal aspects surrounding surrogacy are complex.
In some jurisdictions, the possibility of surrogacy has been allowed and intended
parents are recognised as legal parents of the child since its birth. Yet, in many other
countries, commercial surrogacy outside the country is considered illegal. Thus,
children born through surrogacy to people belonging to these countries may land up
‘stateless’ due to divergent laws that may not grant them citizenship.
Dr Alka Kumar
Consultant Gynecologist, S L Raheja Hospital (A Fortis Associate), Mumbai
Surrogacy is an arrangement in which a woman The birth certiﬁcate of the child would bear the
carries and delivers a child for another couple names of the intended parents. In case of heterosexual
or individual. Intended parents may arrange for couples with genetic contribution from both
surrogacy in case of infertility or medical issues parents, their names go on the birth certiﬁcate.
that make pregnancy risky in the female partner. In case of same sex couple (or single father), the genetic
Other clients could be single parents or gay father’s name alone goes on the birth certiﬁcate. If
couples. The parties that are usually involved donor egg In Vitro Fertilisation (IVF) is performed, the
in the entire surrogacy process include the biological names of both partners in the heterosexual
parents, surrogates, infertility specialists, lawyers and couple go on the birth certiﬁcate. There is no
surrogacy agencies. mention of the egg donor or surrogate mother on
A meticulous and stringent criterion is followed birth certiﬁcate.
while screening for a surrogate. Once ﬁnalised, the Commercial surrogacy is legal in India and is
ﬁnancial & legal agreement is then made between the recognised by the Supreme Court of India. The
surrogate and the commissioning couple. guidelines for surrogacy in India were laid down
India is presently emerging as a leader in international by the Indian Council for Medical Research (ICMR)
surrogacy and fertility tourism. Clinics charge anywhere in 2005. The success rate of surrogacy in India
between ` 9 and 14 lakh ($ 22,00-35,000) for a complete can be expressed at about 45 per cent of carry-
package, which includes fertilisation, surrogate’s fee, home baby in procedures using fresh embryos and
delivery of infant at the hospital, medications, doctor’s 25 per cent in those using frozen embryos.
fees and lawyer’s fees. Even after including the ticket Hong Kong and Taiwan are the other countries
fares, cost of the medical procedures and hotel tariffs, the known for fertility tourism and where surrogacy is
surrogacy expenditure to the intended parents comes to popular. In fact, many Indian women go to these
a third of the amount that would have been spent on the countries for sex selection (especially for male child),
same procedure in the UK. as gender determination is prohibited in India.
30 I February 2011
Dr Aniruddha Malpani
Medical Director, Malpani Infertility Clinic, Mumbai
Surrogacy is an expensive and complex treatment still not been enacted but is expected to happen soon.
option, which is best reserved for women without This will give a major ﬁllip to medical tourism, and
a uterus. India has now become the preferred will also provide more clarity on appointment of
destination for surrogacy, as several high-quality accredited authorities.
IVF clinics are available here that provide excellent It is important that a legal contract be signed by an
medical care with high success rates at economical expert legal consultant before the medical treatment
prices. Besides, there is a well-deﬁned legal framework in starts. This ensures that everything is aboveboard, and
India, with legal specialists to guide the intended parents that there are no legal hiccups later on. Taking shortcuts
throughout the process. can give rise to the tragedy of the birth of ‘stateless babies’,
At present, each IVF clinic is governed by the local who do not have the citizenship of any nation. This can
medical authority (eg, local Municipal Corporation). cause irreparable harm to the surrogacy service industry
The Assisted Reproductive Technology (ART) Bill has in our country.
Dr Duru Shah
Chairman – Gynaecworld - The Center for Women’s Reproductive Health, Mumbai
Couples with health problems or general Moreover, the success rate of surrogacy in India is
inability to conceive still have the option about 60-80 per cent. Besides, there are fewer legal
of experiencing parenthood with the help hassles involved because surrogacy agreement is legal
of surrogacy. It also gives a chance to single in India. Indian clinics have also become competitive
parents or couples with an alternate lifestyle not only in pricing but also in hiring and retention of
to have a child of their own without going Indian females as surrogates. Also, in India, poverty
through the adoption process. is the biggest and most important factor for women
In India, the costs involved in the surrogacy choosing to be surrogates.
process are approximately ﬁve times less as compared However, according to ICMR guidelines of ART Bill
those in some other countries. The approximate and Rules 2008; 34(5), no woman shall act as a surrogate
cost to the intended parent(s) is about ` 10-12 for more than three successful live births in her life. The
lakh, which includes screening of surrogate, IVF governing bodies in India for surrogacy and surrogacy-
procedure, followed by antenatal check-up, related procedures are the ICMR, Ministry of Health
monitoring and medications, hospitalisation & and Family Welfare and the guidelines issued according
delivery of surrogate. to ART (regulation) Bill & Rules – 2008.
Dr Hrishikesh Pai
Gynecologist & Infertility Specialist, Lilavati Hospital, Mumbai, and Fortis La Femme, New Delhi
Indications for surrogacy include conditions the UK, Canada, Australia, the US and Israel.
when a patient is unable to become pregnant There are about 40,000 IVF cycles done per year
due to uterine problems like ﬁbroids, in India, of which surrogacy constitutes 5 per cent.
adenoids, repeated surgeries, cancer therapies, Foreign patients form only 5-10 per cent of the
hysterectomy or conditions of poor general infertility treatment, whereas the Indian population
health like in congenital heart, kidney and lung forms the bulk of patients with infertility problems.
diseases. Surrogacy is also considered in dwarf As per the ICMR draft, the surrogate is paid
patients or single parents. 25 per cent of the money before pregnancy,
There are two types of surrogacy – natural and 50 per cent during pregnancy and 25 per cent after
gestational. In India, natural surrogacy is not allowed, the child is born. However, arrangements can differ
where the surrogate is also the biological mother of as per individual settlements. The compensation
the child. provided to the surrogates is in terms of
In India, there are 450 IVF units, third in the manpower involved and comes to about
the world after Japan and the US with 600 and ` 2-2.5 lakh. This compensation is offered in the form
500 units, respectively. The nationalities that of a token of gratitude, as one cannot commodify
usually travel to India for surrogacy are from bearing a child.
February 2011 I 31
Dr Indira Hinduja
Obstetrician, Gynaecologist & IVF Specialist, Jaslok Hospital, Mumbai, and Breach Candy Hospital, Mumbai
In the past, traditional surrogacy was carried names of the genetic parents. The person(s) availing the
out where, like a wife, a woman had intercourse services of a surrogate mother shall be legally bound to
with the man to bear a child biologically accept the custody of the child and a refusal to do so shall
related to her. Later, the artiﬁcial insemination constitute an offence.
technique substituted the intercourse act. All information about the surrogate shall be kept
In recent years, gestation surrogacy has conﬁdential and information about the surrogate
become more popular, wherein the surrogate shall not be disclosed anywhere other than the
mother practically only lends her womb for carrying central database.
the pregnancy to term. Here, conception takes place ICMR and National Academy of Medical Science
in the clinic through IVF and embryo is transferred to (NAMS) guidelines have suggested formation of a State
the surrogate mother. In this case, the commissioning Board and a National Board for regulating ART clinics.
couple is the genetic parents of the child. The State Board shall have the responsibility of laying
There are different kinds of surrogate depending down the policies and plans for assisted reproductive
on the system of recruitment, eg, in non-commercial clinic in the state, taking into account the policies,
surrogacy, the surrogate will usually be a family member recommendation and regulations of the National board.
or friend, whereas in a commercial system, the surrogate The Director General of ICMR will chair the National
is unrelated and has to be paid compensation. Board. These two authorities will monitor the functioning
In countries like Japan, Hong Kong, Hungary and Italy, of the clinics, regularly inspect the premises and grant
commercial surrogacy is banned and condemned, which is the licence. The licence will be renewed only after the
also the case in Saudi Arabia. In India, the Supreme Court authorities are satisﬁed with the working of clinics.
of India legalised the practice of surrogacy in 2002. As per Surrogacy stands as the pillar of hope for many
the laws in India, a surrogate mother shall, in respect of infertile parents with the desire for a child. Taking up
all medical treatments or procedures in relation to the surrogacy as an option is quite a dilemma and, if not
concerned child, register at the hospital or such medical counselled properly, can come as an unexpected blow
facility in her own name and shall clearly declare herself to the infertile couple. Other options like continuing
to be a surrogate mother. The birth certiﬁcate issued in treatment or adoption should also be put forward to
respect of a child born through surrogacy shall bear the the patient.
Dr Shivani Sachdeva Gour
Gynecologist & Infertility Expert, Phoenix Hospital, New Delhi
A major advantage of surrogacy is that it the guidelines in India, surrogates have no legal
allows one or both parents to be genetically rights on the child. Moreover, everybody wants
related to the child. As against adoption, a healthy surrogate for their child. Women in
surrogacy involves the intended parents at India are generally preferred as surrogates
the time of conception as well as throughout because they are healthy and do not drink, smoke or
the pregnancy. With a decline in the number do drugs.
of newborn infants available for adoption, A surrogate can be selected by contacting an agency
surrogacy offers childless couples another alternative that screens surrogates or an independent surrogate,
to have a child of their own. who can provide her complete medical records.
Individuals from foreign countries travel to India Tests results that rule out diseases like AIDS, hepatitis
for medical care due to a number of reasons like lower B & C, STDs and rubella are very important.
prices, less wait times and infrastructure equipped According to Indian guidelines, a surrogate can
with advanced technological facilities. Besides, there deliver only three times in her lifetime. The governing
are plans that offer complete travel packages in India, body that rules the clinics and hospitals carrying out
including airfare, transfers and surgery costs, which these processes is based on certain guidelines in ICMR
are less than the costs in the US. All these make in chapters 1-6.
medical tourism more realistic for everyone, and not Another country that is attracting attention in
just for celebrities. fertility tourism is Thailand. But the facilities there are
In India, the approximate cost for a surrogacy more expensive as compared to in India. Besides, in
procedure comes to $ 25,000 as compared to Thailand, people face language problems as English is
$ 1,25,000-$ 1,50,000 in the US. Also, as per not widely spoken there.
32 I February 2011