Surrogacy in India
Surrogacy in India is a popular topic in the media. Surrogacy is useful for only a very small group of women and those who wish to explore it must evaluate carefully if this is the best option for them.
Surrogacy is a hot topic in the Indian media right now - and newspapers, magazines and TVs are full of talk-shows and reports as to how India is poised to become the next surrogacy outsourcing capital of the world. Not only does India have a number of successful IVF clinics; there are a lot of women who are willing to be surrogates , so that surrogacy costs a fraction of what it would in the West. While a surrogacy treatment cycle would be about US $ 50000 in the US, it is about one half to one fifth the price in India - a bargain by any standards ! And in this day and age of globalisation and market-driven economies, there is considerable demand for this service !
The amount of media attention which surrogacy attracts is huge, but it is completely disproportionate to its utility in real life. Surrogacy stories are full of human interest, which is why they are so popular, but what I find very disappointing is the fact that the media does not provide the right perspective while covering this topic. I feel the failing is because of innumeracy - of not realising how uncommonly this particular treatment is needed in the first place !
We need to remember that surrogacy is useful for only a very small group of women. For example, a busy IVF clinic which performs about 300 IVF cycles every year will see only about 3 patients who medically need surrogacy. Medically, the indications for surrogacy are few and far between, and most infertile patients can be helped with much simpler and easier treatment options. The commonest reason is a woman who has no uterus. The uterus may be absent from birth (Mullerian agenesis, MRKH syndrome); or may have been removed surgically (hysterectomy for life-saving reasons, such as excessive bleeding during a caesarean). Other women who may wish to explore surrogacy include those whose uterus is irreparably damaged because of uterine tuberculosis or Ashermann's s syndrome.
However, in real-life, when we we analyse the medical histories of women who opt for surrogacy, we find that the vast majority of the time it is usually infertile couples who either :
- have had multiple miscarriages; or
- who have failed repeated IVF attempts for unexplained reasons.
While these can be reasonable indications for surrogacy, the fact is that it is often done because the patient is fed up and frustrated with repeated IVF treatment failures or miscarriages; and is looking for alternative options. In a market economy, supply rises to meet demand, and there are many clinics who are happy to oblige these desperate couples - for the right price, of course !
However, the fact is that many of these couples do not need surrogacy at all ! They have a perfectly normal uterus; and would be better of opting for donor eggs or donor embryos, rather than surrogacy. Unfortunately, they fail to realise this, partly because these options are not adequately highlighted in the media; and because some doctors prefer "pushing" the more lucrative surrogacy treatment option ( as this means more bucks for them !)
Unfortunately, it's hard for patients to think straight when they are desperate, which often means they opt for surrogacy rather than egg donation - a choice which is much more complex , because of all the legal, emotional and social issues involved - and also needlessly expensive .
Let's look at the real-life problems involved in surrogacy. Firstly, finding a surrogate can be extremely difficult ! If you have a friend or relative who agrees to be your surrogate, then your best option is altruistic surrogacy. Not only is this much less expensive, the risk of this going sour is much less. Commercial surrogacy is much trickier, because you then need to take extensive steps to protect your interests, and ensure that the surrogate will hand over the child to you after birth. Finding a reliable clinic, an honest surrogate and a good lawyer can be hard work - it is also very expensive !
If the surrogate is anonymous and confidential, then you need to trust the clinic 100% - and this can be a big mistake . When there is so much money at stake, many doctors are tempted to cut corners , partly because it's so easy to do so - and it's so hard to check their actions ! It's easy to fool vulnerable patients . For example, clinics or agencies may take an advance fee and promise to find a suitable surrogate - who then backs out at the last minute because of a faked "personal or medical emergency". Some clinics take the money ; claim to perform the treatment ; and inform the patient that the surrogate is pregnant. They then add to the lie by saying that the surrogate unfortunately miscarried, with the result that all the money has been poured down the drain ( or into the clinic's coffers). Since there is no way of verifying any of this, the patient is completely at the doctor's mercy - and woe betide the patient who falls into the hands of an unscrupulous doctor ! Since many surrogates who act as surrogates for purely financial considerations are poor and malnourished, the babies they give birth too are often low-birth weight as well.
Many patients also have unrealistic expectations of surrogacy treatment. They think that it is a 100% sure-shot affair , while in reality the pregnancy rate is still only 50% per cycle.
Of course, the major problems with surrogacy arise after birth. However, desperate patients refuse to think so far ahead, and plan to "cross the bridge" when they get to it - without thinking clearly through the real-life hurdles they will encounter at this time.
Let's look at this closely and assume the treatment has been successful; the pregnancy has been uneventful; and the child is now born in an Indian clinic. Whose name is going to appear on the birth certificate ? How will the infertile couple claim parenthood ? How will they take the child back with them to their home country after the birth ? And what happens if the surrogate ( or her husband) changes her mind and refuses to hand over the baby ? Or blackmails you for custody ?
While many clinics talk about the " Indian Council of Medical Research ( ICMR ) guidelines for surrogacy"; and about how they make the surrogate sign an agreement to protect the infertile couple, what they do not tell the patient is that the guidelines are just a piece of paper which have no legal validity whatsoever !
The Indian legal system today only recognises the birth mother. There is no concept of DNA testing for establishing paternity as far as the Indian legal system goes, which means that the name on the child's birth certificate has to be that of the birth mother and her husband ! The birth certificate is a legal document and cannot be fudged. Deliberately lying and putting the intended parent's name on this is illegal, unethical and dangerous. Many couples naively plan to adopt the child and then take it back with them. What they fail to realise is that adoption in India is a long and convoluted process which can only be performed by a recognized adoption agency - and you cannot select a particular child for adoption !
Hopefully, the Indian parliament will soon pass a law which regulates IVF and related assisted reproductive technologies which may provide some legal protection for infertile couples when they go in for surrogacy treatment. However, no matter what laws are passed and what contracts are signed, remember that real-life can be very messy; and if the surrogate chooses to dispute the contract after birth, then the infertile couple is likely to find themselves embroiled in a legal quagmire - and knowing the way the Indian judiciary work, the child will be about 10 years old before the problem is solved ! King Solomon's wisdom is hard to come by in this day and age !
Before you consider surrogacy in India, ask your doctor these questions.
- Would I receive a birth certificate stating my name as the biological parent prior to leaving India? Am I likely to have problems with Indian immigration when I take the child out of India ? What about the laws in my own country ?
- Is DNA testing available to confirm the biological relation between myself and the child prior to leaving the country? How and where is this done ? Is this legally valid ?
- How do you ensue the surrogate takes the proper prenatal measures during pregnancy?
In my opinion, the real danger with surrogacy in India today is that it is being overused and misused today. Without a safe legal framework to operate in, patients are being misled and misguided.
The biggest tragedy is that it is being used for women who do not need it in the first place - women who can be successfully treated with much simpler ( and less expensive) treatment options ! These are women who have had repeated IVF failures; or recurrent miscarriages. They feel that their uterus is defective, because it is "rejecting" the fetus, which is why they opt to go in for surrogacy. They feel that if they use a healthy woman's uterus to grow the embryo, their problems will be solved.
Actually, this is a misconception. The commonest reason for recurrent unexplained miscarriages or repeated IVF failures is NOT a defective uterus - it is usually poor quality eggs. Extensive research has shown that embryos fail to implant ( and miscarriages occur ) because of a genetic problem in the embryos . It has been documented that these problems become commoner as the eggs age, because older eggs have a higher chance of being genetically abnormal. The solution to this problem is not surrogacy, because replacing a normal uterus with another woman's normal uterus does not correct the underlying problem !
Not only is egg donation much easier and less expensive; it also bypasses all the social and legal problems associated with surrogacy. Once the donor donates her eggs, she relinquishes all rights to them; and since it's the infertile woman who gives birth to the baby, it's her name which appears on the birth certificate, thus preventing any problems in the future. It's also much more satisfying for women, because she is the one who experiences the pregnancy; can bond prenatally to her baby; and gives birth to her baby !
However, unless patients become better informed, many of them will continue to opt for surrogacy, when in fact the right answer to their problem would be using donor eggs !