Until recently, the 350 clinics offering surrogate mother services to the hundreds of medical tourists coming to India every week have been unregulated. But legal cases in India and other countries, mean that this profitable free-for-all will be replaced by regulated agencies being forced to comply with national and international law.
India's Supreme Court has demanded urgent new legislation to regulate one of India's fastest-growing industries. India has become the world capital of outsourced pregnancies, where surrogates are implanted with foreign embryos and paid to carry the resultant babies to term. In 2002, the country legalized commercial surrogacy in an effort to promote medical tourism. Indian surrogate mothers are readily available and cheap. A draft bill to direct assisted reproductive technology (ART) will be introduced this year in Parliament. The new legislation will make law the surrogacy guidelines of the Indian Council of Medical Research (ICMR) that are often ignored by Indian fertility clinics.
Many of the couples using India are from countries where surrogacy is either illegal or unaffordable. Surrogacy costs $12,000 to $20,000 per birth in India, compared to $70,000 to $100,000 in the USA. Most surrogate mothers are rural women in need of income. Indian surrogates are usually paid between $5,000 to $7,000 for their services, which is more than many of them would be able to earn after years of work. In some Indian clinics surrogates are recruited from rural villages, with most recruits being poor and illiterate. Surrogacy recruits are brought to the clinics where they are required to stay in the clinic’s living quarters in a guarded dormitory-like setting for the entire pregnancy.
There have been several cases in which babies born from Indian surrogacy arrangements were stateless, in which neither India nor the parents’ home countries recognized the babies’ citizenship. Japan considers the woman who gives birth to a baby, the surrogate, to be the baby’s mother. Until recently, two-year-old twin toddlers were stateless and stranded in India. Their parents are German nationals, but the woman to whom the babies were born is an Indian surrogate. The boys were refused German passports because the country does not recognize surrogacy as a legitimate means of parenthood. And India does not confer citizenship on surrogate-born children conceived by foreigners. Only after a long legal battle did Germany allow the boys German passports.
The new proposed government bill bans in-vitro fertilization (IVF) clinics from brokering surrogacy transactions. It also calls for the establishment of an ART bank that will be responsible for locating surrogate mothers, as well as reproductive donors. Fertility clinics will only come into contact with surrogates on the operating table. Clinics see this as unworkable as they want to perform medical and background checks. But the new rules seek to protect surrogate mothers with freedom in negotiating their fee and mandatory health insurance from the couple or single employing them. Firm legal standards will ensure that medical professionals only be permitted to implant three embryos in a woman's uterus per attempt. The legislation will only allow a woman to act as a surrogate up to five times, less if she has her own children, and will impose a 35-year age limit. The new legislation will require that the international couple's home country guarantee the unborn infant citizenship before a surrogacy can begin. If this stipulation becomes law it could kill the industry as few countries will or legally could guarantee citizenship before birth. Countries accepting surrogate-born children typically rely on DNA tests done post-delivery to determine the parentage of the baby.