This study looks in turn at the state of surrogacy legislation, the social context in which it develops, and the situation of surrogates who engage in it.
-
Legislation
An initial ultra-liberal position in 2002
Surrogacy has been legal in India since 2002[1]. The text does not provide much detail on access or conditions of use. In 2005, the Council for Medical Research in India published a code of conduct for surrogacy practices. This code defines the terms of parentage – which are given directly to the commissioning parents when the contract is drawn up – and the type of surrogacy that is allowed and prohibited: since the surrogate cannot be the legal mother, it prohibits so-called traditional surrogacy, in which the surrogate’s eggs are used for fertilization. The code also requires that the commissioning parents be listed on the birth certificate and that the surrogate relinquish all rights to the child[2].
In 2008, the Supreme Court had allowed the payment of financial compensation in exchange for the surrogate mother’s “services”[3], making commercial surrogacy legal in India and specifying the need for a law to regulate such compensation[4].
The guidelines set out in several bills since the mid-2000s to further regulate the industry are not binding, and without legislative authority and oversight mechanisms, clinics are self-regulating, promoting profit and reproductive tourism[5].
In 2009, the Law Commission of India produced a report highlighting the exploitation of Indian women by foreigners. The report recommended a ban on commercial surrogacy in India[6].
Increasingly restrictive regulations from 2015
In 2012, a draft bill to regulate surrogacy echoed the proposals of the Council for Medical Research in India, suggesting that the age range for surrogacy should be between 21 and 35. This draft also proposed that a surrogate mother should not have more than 5 completed births in her lifetime, including her children[7].
In January 2013, the Minister of Health decided not to open surrogacy to same-sex couples and single foreigners[8].
In October 2015, after more than 10 years of waiting for a law to regulate surrogacy, the government decided to ban access to foreigners as part of a larger plan to ban commercial surrogacy all together [9]. Since 2015, only Indian married couples have had access to MDS.
In August 2019, a law was passed to ban commercial MDS. This law mandates altruistic MDS and affirms that only heterosexual married couples of Indian nationality who are infertile or sterile and without children can have access to it. In addition, the surrogate mother must be a married woman from the commissioning parents’ entourage who already has a child[10].
The Surrogacy Act 2021 came into force in January 2022, bringing new regulations and provisions during a surrogacy contract. For example, this law requires the commissioning parents to take out health insurance for the surrogate mother for 36 months, the number of embryo implantation attempts for a surrogate mother may not exceed three, and surrogate mothers may decide to have an abortion during pregnancy[11]; furthermore, the number of embryos implanted per treatment cycle may not exceed one, and special provisions may allow three embryos at a time, but no more[12]. Another law passed at the same time regulates AMP (Assisted Reproductive Technology) clinics, where the location of the facilities and medical staff must be registered with the National Board of Medicine, and genetic material banks to ensure that ethical practices are respected[13]. creation of the National Assisted Reproductive Technology and Surrogacy Board
-
MDS & the Trafficking of Women and Children
The cases reported here often refer to the period when surrogacy was legal and practiced in its most violent commercial form. It would be interesting to verify whether these practices have really been abandoned as legislation has become more restrictive.
Abusive practices
Abuse is widespread in a popular clinic in India[14]. Surrogate mothers are confined to dormitories[15] and subjected to numerous restrictions during pregnancy, with little freedom of movement and even dietary restrictions. They are also forbidden to have sexual relations with their husbands, if they have one, and forbidden to share food with their children when they come to visit them, as they are not allowed to stay with them in the dormitory. They are also forbidden to listen to certain types of music, to watch certain types of television, and to call their husbands until they have the results of the embryo transfer. They are even followed to the bathroom, are not allowed to laugh too loudly, have to sleep in certain positions, or even drink coffee. On the contrary, they are forced to eat protein. Most of them have a very low level of education, some are illiterate, and none of them could read the contracts written in English, which is also related to the fact that many of them were married before the legal age.
The vast majority of the surrogates interviewed admitted that what they had suffered was similar to slavery, and a smaller minority recognized what they had experienced as a situation similar to sexual exploitation of their reproductive organs. The contracts they signed do not protect their health. They are also victims of manipulation, where the death of a surrogate mother is used to terrorize them into respecting the rules, otherwise they will miscarry and possibly die. They also don’t have access to a copy of the MDS contract, so they have no proof that they were in a contract if they want to make a complaint, for the same reason they are paid only in cash. The eggs of one of the surrogates were used for a traditional MDS, which is also illegal. To minimize the risk of loss of profit, the clinic implanted the embryos of a single client couple in several surrogates at the same time. Surrogate mothers cannot question the medical or physical procedures they undergo, and they have no insurance in case of complications.
Once they have given birth, surrogate mothers usually become either egg donors, surrogate matchmakers, or even recruited for drug trials[16].
The mistreatment of surrogates is linked to economic issues for clinics, which will use multiple embryos from different women to maximize yield. It appears that implantation of 5 embryos at the same time is routine[17]. If multiple embryos develop in the uterine wall, the clinic will resort to selective abortions[18]. New legislation limiting the number of embryos implanted is likely to change this aspect of MDS.
Bypassing the adoption system
MDS has also become a way for facilitators and prospective adoptive parents to circumvent the adoption system, which is seen as long, tedious, and difficult[19].
Pimp husbands
Many women who become surrogate mothers are forced to do so by their husbands, who act as pimps[20]. When commercial MDS was allowed in the country, husbands of surrogate mothers could also become recruiters for other surrogate mothers and were responsible for monitoring surrogate mothers by working with local traders and different surrogate mothers if they lived close to each other to increase feelings of jealousy and ensure their “good behavior”[21].
Trafficking and abuse
A group of medical workers allegedly organized an MDS arranging circle for foreign clients despite a ban in the Siliguri region of West Bengal. 5 members of the group were arrested for trafficking 3 children to Nepal[22].
In 2012, an Australian couple abandoned one of their twins born to an Indian surrogate mother because he had Down’s syndrome[23].
In 2014, an egg donor died after egg retrieval[24].
In July 2022, the story of a 16-year-old girl who was forced by her uncle to become a surrogate was revealed. Her child was then sold to a gang who took care of reselling it to buyers. Apparently, she was not the only victim of the gang[25].
In early 2022, a nurse was accused of stealing newborn babies in a child trafficking case that could extend to at least 6 states in the country, in connection with numerous health professionals in hospitals in other states[26].
In 2015, after the ban on MDS for foreigners, a gay male couple still approached a fertility clinic in Mumbai. The surrogates assigned to them were from Kenya. To minimize lost profits, several women in Mumbai were inseminated with embryos derived from the couple’s genetic material and then taken to Kenya to give birth in a hospital in Nairobi, where the commissioning parents collected the newborns[27].
In 2015, the story of a woman who was forced to be a surrogate mother for seven years, with one child a year, by criminals in the Jharkand region, considered a center of modern slavery, was revealed[28].
MDS & Social environment
A large industry in search of clients
MDS is currently promoted in India through cinema[29] and Bollywood stars, many of whom promote the use of surrogates in the country[30]. This constant visibility may serve to destigmatize the practice and make surrogacy available to a wider range of clients. So-called “women’s” magazines also promote egg donation[31].
The MDS industry includes not only fertility clinics, but also medical consultants, organizations linked to the hotel sector, travel agencies, law firms, intermediaries, and tourism departments and hotels dedicated to MDS[32]. The clinics operate on an economic model of supply and demand, but their main activity is demand creation rather than infertility treatment[33], and business ethics prevail over medical ethics, with little regard for the health of the surrogate mother[34].
The stigma of MDS
The social stigma surrounding SDM still exists, but this stigma disproportionately affects surrogate mothers. In fact, surrogate mothers face the possibility of being expelled from the social center and the family. For many people in the villages where surrogate mothers are recruited, MDS is tantamount to selling one’s child, and there is a very strong moral judgment against this act[35]. They flee their homes and families to avoid the stigma, but they also feel the trauma of losing the child[36].
One of the most interesting aspects of MDS in India is that the Gujarat region is the most religious region in India, but it is also the IVF and surrogacy capital of India[37]. This may also be related to the fact that infertility is also a stigma in India[38].
Economic pressure and moral justification
It appears that many women who become surrogates have unemployed husbands[39]. This is particularly the case in the Gujarat region, where the diamond industry has collapsed and many men have lost their jobs[40]. The pandemic has also led many educated women to become egg donors or surrogate mothers because of the economic crisis[41].
Self-sacrifice and sacrifice are seen as virtues that Indian women must uphold, and it is from this angle that MDS is approached and some women justify themselves: they don’t see their position as surrogates as a job, but as a duty to sacrifice for their family[42]. Thus, few surrogates will mention altruism towards a childless family as the main reason for becoming a surrogate, but rather financial need[43].
Client preferences
The choice of surrogates and egg donors also appears to be important to clients[44], with a preference for light-skinned women, regardless of caste. Their religious affiliation, behavior and habits, and level of education are also considered[45]. Even if the surrogate is not genetically related, she may be rejected by the commissioning parents if they don’t like her appearance[46].
Information that is hard to find
Information about the number of clinics in India seems to be contradictory: some sources say there are 350 fertility clinics[47], while other sources say there are 3,000[48]. Obtaining interviews is generally difficult, and very often researchers have to contact fertility clinics. However, these interviews take place in situations where questions cannot be asked freely, often with the intervention of clinic staff[49]. Surrogates may not be able to give completely honest answers when they are under the watchful eye and control of clinic staff.
Private initiatives
Lawyers’ associations are calling for the professional recognition of surrogate mothers, arguing that this is the best way to protect them[50].
Several Indian companies have also decided to include the commissioning parents of surrogate children in the distribution of parental leave[51]. Another company has also decided to reimburse childcare costs for all employees, including those who have children with MDS[52].
***
MDS in India is a veritable industry that produces thousands of babies every year. The ban on foreign contracts has calmed the frenzy, but human rights abuses and the mistreatment of women in the industry continue. Recent legislation to regulate and limit MDS may be a first step toward abolition, but we must remain vigilant when an industry is so prominent.
It’s also interesting to note that the information collected by researchers who came into contact with surrogates through clinics differs from that collected by fieldworkers who met surrogates directly outside of agencies and clinics.
[1] http://cdpf.unistra.fr/travaux/obligations-biens/les-contrats-de-mere-porteuse/inde/
[2] Ibid.
[3] Ibid.
[4] https://telanganatoday.com/a-case-for-compensatory-surrogacy
[5] Gupta, J.A., 2012, “Reproductive biocrossings: Indian eggs donors and surrogates in the globalized fertility market” International Journal of feminist Approaches to Bioethics, vol.5, No.1, pp. 25-51
[6] https://telanganatoday.com/a-case-for-compensatory-surrogacy
[7] Shetty, P., 2012, “India’s unregulated surrogacy industry” The Lancet, Volume 380, Issue 9854, pp. 1633-1634
[8] http://cdpf.unistra.fr/travaux/obligations-biens/les-contrats-de-mere-porteuse/inde/
[9] https://www.francetvinfo.fr/sante/grossesse/l-inde-veut-interdire-la-gpa-aux-couples-etrangers_1794686.html
[10] https://www.ieb-eib.org/fr/actualite/debut-de-vie/gestation-pour-autrui/l-inde-s-apprete-a-interdire-la-gpa-commerciale-1654.html
[11] https://www.thehindu.com/news/national/couples-opting-for-surrogacy-to-buy-three-year-health-insurance-for-surrogate-mothers-govt/article65556439.ece
[12] Ibid.
[13] https://www.indiatimes.com/explainers/news/indias-new-reproductive-laws-563810.html
[14] Saravanan, S., 2019, Gestation pour autrui en Inde : Bioéthique, Droite humains et contrat d’Intermédiation.
[15] Saravanan, 2019, op cit.; https://www.terrafemina.com/article/le-business-effrayant-des-meres-porteuses-en-inde_a308122/1
[16] Saravanan, 2019, op cit. ; Gupta 2012
[17] Gupta, 2012, op cit.
[18] Saravanan, 2019, op cit. ; Gupta 2012
[19] https://www.thehindu.com/news/cities/Delhi/plea-seeks-simplification-of-child-adoption-process/article33927415.ece
[20] https://www.theguardian.com/global-development/2016/apr/01/outsourcing-pregnancy-india-surrogacy-clinics-julie-bindel?CMP=twt_gu
[21] Nadimpally, S.; Majumdar, A., 2017, “Recruiting to give birth: agent facilitators and the commercial surrogacy arrangement in India” in Miranda Davies (eds) Babies for Sale?: Transnational Surrogacy, Human Rights and the Politics of Reproduction, Zed Books.
[22] https://timesofindia.indiatimes.com/city/agra/ex-delhi-doctor-running-illegal-surrogacy-operation-in-nepal-agra-police/articleshow/77006879.cms
[23] https://telanganatoday.com/a-case-for-compensatory-surrogacy
[24] Ibid.
[25] https://www.thehindu.com/news/national/andhra-pradesh/andhra-pradesh-surrogacy-racket-busted-baby-girl-rescued/article65689246.ece
[26] https://dailyindia.net/buying-and-selling-of-newborn-babies-accused-nurse-disappeared-raipur-police-increased-the-scope-of-investigation/37607/
[27] https://buffalonews.com/lifestyles/health-med-fit/india-outlawed-commercial-surrogacy-clinics-are-finding-loopholes/article_2979b5ba-5cd2-587a-a44b-2776f813ca9a.html
[28] https://www.hindustantimes.com/india/trafficked-tribal-girls-forced-to-conceive-deliver-babies-for-sale/story-KEbZAB2au7Gyw9aspupTEI.html
[29] https://newsd.in/bollywood-reloads-the-surrogacy-story/
[30] https://time.com/6075971/commercial-surrogacy-ban-india/
[31] Gupta, J.A., 2012, op cit.
[32] Nadimpally; Majumdar, 2017, op cit.
[33] Ibid.
[34] Fronek, P., 2018 “Current perspectives on the ethics of selling international surrogacy support services”, Dove Medical press, Volume 2018:8 Pages 11—20
[35] Karandikar, S.; Gezinski, L. B.; Carter, J.R.;Kaloga, M., 2014 “Economic necessity or Noble Cause? A QualitativeStudy Exploring Motivations for Gestational Surrogacy in Gujarat, India” Journal of Women and Social Work, Vol.29(2), pp. 224-236.
[36] https://www.terrafemina.com/article/le-business-effrayant-des-meres-porteuses-en-inde_a308122/1
[37] Ibid.
[38] Rozée, V., 2017 “La gestation pour autrui en Inde – Des difficultés révélatrices d’une réalité controversée” Journal des anthrolopologues, Vol.148-149, pp. 253-270
[39] http://cdpf.unistra.fr/travaux/obligations-biens/les-contrats-de-mere-porteuse/inde/
[40] Gupta, 2012, op cit.
[41] https://time.com/6075971/commercial-surrogacy-ban-india/
[42] Gupta, 2012, op cit.
[43] Karandikar, S.; Gezinski, L. B.; Carter, J.R.;Kaloga, M. 2014, op cit.
[44] https://time.com/6075971/commercial-surrogacy-ban-india/
[45] Saravanan, 2019, op cit.
[46] Nadimpally; Majumdar, 2017, op cit.
[47] https://www.motherjones.com/politics/2010/04/surrogacy-tourism-india-nayna-patel/
[48] Gupta, 2012, op cit.
[49] Rozée, V., Unisa, S., de la Rochebrochard, E., 2016 “La gestation pour autrui en Inde” Population & Sociétés,vol. 537, no. 9, pp. 1-4. ; Rozée, 2017, op cit.
[50] http://cdpf.unistra.fr/travaux/obligations-biens/les-contrats-de-mere-porteuse/inde/
[51] https://www.constructionweekonline.in/people/16891-on-womens-day-ntpc-announces-recruitment-drive-for-women ; https://www.indialegallive.com/constitutional-law-news/courts-news/himachal-pradesh-high-court-teacher-surrogate-maternity-leave/
[52] https://timesofindia.indiatimes.com/business/india-business/mondelez-to-foot-bill-for-in-house-nanny/articleshow/81519521.cms