Goldberg's case is only the latest in the legal tangles that have occurred in the last few years on surrogacy issues. In India, surrogacy, which is a part of the country's Rs 25,000-crore assisted reproductive technology (ART) industry, is ungoverned by any laws (though a 2009 law commission report has stressed the need to regulate ART clinics). But, as many foreign prospective parents — most come from the US, UK and Israel — have discovered, the surrogacy laws of other countries often come in the way of parents returning home with their children.
According to G R Hari, who runs the two-yearold Indian Surrogacy Law Centre, the absence of comprehensive laws in India could give rise to some knotty legal scenarios in the future. Like the Manji and Jan Balaz cases, which are prime examples of unprecedented surrogacy occurrences that have had to be resolved by Indian courts. Manji Yamada was born by a surrogate in Gujarat to Japanese parents. During the surrogate's pregnancy , the couple got divorced, and the maternal grandmother came to India to claim the child. A Jaipur-based NGO petitioned the Jaipur high court, arguing that in the absence of a surrogacy law, the baby could not be claimed by anyone. The matter reached the Supreme Court, which directed the government to give Manji a travel certificate . In the second case, German couple Jan Balaz and Susan Lohle had twins born to a Gujarati woman, but were unable to take their children home, as Germany does not recognise surrogacy. The issue reached the Supreme Court, which suggested that they adopt the children.
Hari, who advises about 20 to 30 couples a year, helps his largely foreign clientele negotiate the nebulous waters of surrogacy. "We look for conflict of issues that might affect prospects," he says. "Once we do an initial study, we are in a position to know the risks." According to him, many couples make the mistake of assuming that the laws of most countries are as surrogacy-friendly as those of the US. "In fact, many European countries such as France, Norway and the Netherlands outlaw commercial surrogacy," he says. "So does the UK, but it recognises altruistic surrogacy." Hari adds that while the intended parents (the ones going in for surrogacy) are named in a child's birth certificate in India, in the UK it is the surrogate mother — the one who actually gives birth — who is recognised as the child's legal mother. The intended parents have to subsequently apply for parental orders in order to become legal parents. But even though this is the case, British parents don't usually have trouble taking their kids back.
In India, the 2008 Draft ART Regulation Bill, which lays down guidelines for the practice of surrogacy , states that birth certificates should be in the names of the intended parents, who then automatically become legal ones. It also allows for single parents — in many cases a gay parent who has supplied his gamete — to become the legal parent. However, couples from countries that don't recognise commercial surrogacy often find themselves in a legal mess even after acquiring a birth certificate. "Sometimes they don't disclose that the child is by a surrogate," says Hari. The draft bill attempts to tackle this problem by insisting that the surrogacy clinic and client get a certificate of approval from the embassy representing the latter's country.
A number of pregnancy-related issues could also come about in the absence of a law. Jamshed Mistry, an advocate at the Bombay high court, imagines several scenarios. "What if the surrogate mother dies?" he asks. "What happens if a child can't be conceived? Or if the foetus dies prematurely? These questions would need to be answered."
Legal wrangles, however, are just tiny hiccups in the flourishing surrogacy practice in India, widely regarded as the surrogacy capital of the world. According to a survey carried out across 160 fertility clinics in 2006, 290 cases of surrogacy took place that year. The Mecca for surrogacy is the town of Anand in Gujarat. Mumbai is the runner-up . "Medical tourism companies help people," Hari points out. "Once it becomes a proven method, then more people are encouraged to come to India."
India is attractive for two reasons. Surrogacy comes at a reasonable price here. In the US, surrogacy costs up to $120,000; in India, couples pay only a fourth or so of that amount. Having a child could cost anything between Rs 10 lakh s and Rs 25 lakh here: costs include the in vitro fertilisation, caring for the surrogate for her full term of pregnancy , the surrogate's fee and living expenses for the intended parents. Many couples also come through travel agencies that specialise in medical tourism. These agencies liaise with infertility clinics in India and organise the couple's trip for a fee.
The second reason for India's pull as a surrogacy destination is its laws. It is far simpler to become legal parents in India. Unlike countries such as the UK and Australia, which consider surrogates legal mothers, India recognises the intended parents as the legal parents. Also, couples don't have to fear that Indian surrogates will refuse to give up children they bear. In some states in the US, where surrogacy agreements are not legally binding, there have been cases of surrogate mothers deciding not to relinquish babies. In India, on the other hand, most surrogates are from the middle and lower classes. As they undertake surrogacy for some extra money, it is unlikely that they would stake a claim to the children they bear. All surrogates are required to sign contracts waiving any rights over the child.
In Mumbai, many surrogate mothers are slum dwellers. (We were assured this is not the case. I wonder why the media is suddenly writing this and where this supposed "fact" came from.) Clinics usually take excellent care of them for as long as they are pregnant and pay them between Rs 2 lakh to Rs 3 lakh depending on whether they are carrying twins or a single child. They also earn Rs 50,000 for every potential surrogate mother they refer to the clinic carrying out surrogacy. The women are housed in residences near the clinics and fed healthy diets. The money that they make usually goes towards domestic expenses such as repairing their homes and educating their children.
Benhur Samson, a Chicago entrepreneur who in 2006 launched Surrogacy Abroad, a consultancy practice that guides couples from the US, UK and Canada on surrogacy in India, says he has increased his clientele by 400 per cent in four years. Samson, who is originally from India, says that 80 per cent of his clients are Caucasian Americans while the rest are non-resident Indians.
This year alone, Surrogacy Abroad, which works in partnership with an infertility clinic in Hyderabad, is likely to help 60 couples. The intended parents, who are usually in their 40s, are interviewed in person before Surrogacy Abroad takes them on to provide services that range from hand-holding them through the procedure to taking them sightseeing in their spare time to escorting them back to the US.
Delhi-based infertility specialist Dr Anoop Gupta, who gets patients from across the world from China to Mozambique, says that on an average, five to seven per cent of new patients require surrogacy.
Dr Firuza Parikh, director of the department of assisted reproduction and genetics at Mumbai's Jaslok Hospital, says surrogacy cases are on the rise. "If you look at the trend, we are doing more (surrogacy ) than we were ten years ago," she points out. "There is more awareness now. People do it without feeling reticent."