The Surrogates: Is India's strict new surrogacy law the wrong move?

A petite woman wearing a traditional salwar kameez dress peers through a crack in the doorway and smiles. As she enters, her gold nose ring casts a reflection on the wall. “I’m feeling a little shy about telling you my story,” she says, carefully taking a seat.

Bharti* is a 27-year-old mother of two who is pregnant with a third child, though she holds no emotional attachment to the forthcoming baby. “I already have my own children,” she says. “This one isn’t mine.”

As a first-time surrogate mother at the Akanksha Hospital and Research Institute in Anand, in the west Indian state of Gujarat, Bharti will earn 400,000 rupees (US$5,600) to carry someone else’s child following in vitro-fertilisation, or IVF (a procedure in which a doctor implants embryos into the uterus). It’s a sum neither Bharti nor her husband ever dreamt of and is more than three times the average annual per capita income in India.

“My father made me leave school when I was 12,” she recalls. “I wanted to keep studying and learning. I wanted to get a well-paying job, but instead, I stayed at home and helped with the cleaning and cooking.”

Bharti lives in Nadiad, a small city in Gujarat, where her husband works as a rickshaw driver for 1,000 rupees (US$14) a month. “It’s not enough to put food on the table and send our children to school,” she says. “After watching my sister-in-law become a surrogate, I decided to do it. Now, we will buy a house and hopefully build a small business.”

As of September 2019, there were 22 other surrogates at Akanksha Hospital – many of whom were able to pull their families out of poverty. But after India’s upper house of Parliament approved the Surrogacy (Regulation) Bill 2019 earlier this year, the government will soon put an end to the industry.

India opened its doors to commercial surrogacy in 2002 and soon became one of the world’s most popular destinations for couples from all over the world, owing to the low costs, skilled doctors, minimal paperwork, and abundance of willing surrogates. The country banned commercial surrogacy for foreigners in 2015;  however, the industry still thrives due to the abundance of Indian couples who rely on surrogacy to start a family.

While there are no official figures to quantify the scale of the industry, a 2012 study backed by the United Nations estimated that India’s surrogacy sector garners more than US$400 million in revenue per year.

In 2004, Dr Nayana Patel, the medical director at Akanksha and an internationally acclaimed fertility expert, became the first doctor in Asia – and the fifth worldwide – to successfully deliver a child via surrogacy, which set the ball rolling for Patel to transform the surrogacy landscape in India.

“Commercial surrogacy is the need of the hour,” Patel says pragmatically in her office, where photographs of happy families line the walls. “So many women are choosing it as a method of having a baby because it’s a last resort to having a biological child if you cannot conceive yourself.”

According to a 2012 study published by Public Library of Science – Medicine, approximately 2 per cent of women worldwide experience primary infertility (the inability to become pregnant after sexual intercourse for one year without birth control) while 10.5 per cent experience secondary infertility (the inability to become pregnant after previously giving birth).

Furthermore, one in 4,500 women worldwide does not have a uterus at birth, a medical condition that’s called Mayer-Rokitansky-Kuster-Hauser Syndrome, according to the US National Library of Medicine. In this case, even if a uterine transplant is successful, a woman would need to undergo IVF in order to become pregnant because she would be unable to produce an egg herself. Unfortunately, IVF is often unsuccessful, hence the reason many women seek a surrogate mother as a last resort.

‘Surrogacy capital’

The Akanksha Hospital and Research Institute is so well-known in the fertility world that the Gujarat state, where the hospital is located, has become the “surrogacy capital” of India. To date, Patel has helped deliver more than 1,400 babies via surrogacy at the hospital.

However, the region may soon undergo a transition. When passed in 2020, the new legislature will limit surrogacy to altruistic purposes whereby the surrogate mother receives no financial compensation. The bill also states that only legally married, heterosexual Indian couples and single women (including widows and divorcées), can access surrogacy services, which means single men, non-married couples, widowers, and same-sex couples will be excluded.

Couples must be certified as “infertile” before proceeding. Age restrictions also apply: Married women must be between 23 and 50, while men must be 26-55. The bill also states that the surrogate mother must be a married woman between 25 and 35 years old with a child of her own.

While the first draft of the amendment bill in 2019 stated that the surrogate mother must be a “close relative” of the couple, that requirement has since been scrapped. In February 2020, a Select Committee of Parliament decided to enable any “willing” woman to become a surrogate mother, provided they meet all other requirements. The revised bill also states that divorced and widowed women between 35 and 45 years old may choose surrogacy.

Medical professionals, including Patel, have criticised the legislation for being “too strict and too regressive”. Moreover, they condemn the bill for its discriminatory stance towards same-sex couples and unmarried persons. “We always felt the need for regulation, so women are protected, and clinics are well-run. But this new law is a near ban,” she says. “It’s not the right move.”

The law follows a 2015 policy, which banned foreign couples from India’s surrogacy services as a result of complications with documentation and a string of incidents where foreign parents changed their minds during the surrogacy process. ‘Baby Manji,’ as she came to be known, is one of the most famous cases. Her would-be parents, an infertile Japanese couple, visited Patel in 2007 to have a baby via surrogacy.

However, the couple split up while during the surrogate’s pregnancy. After the divorce, the Japanese mother didn’t want to raise the baby. The father still wanted the child but couldn’t take her home immediately, due to a colonial-era Indian law prohibiting single men from adopting girls. After a fierce legal battle, the father was eventually able to adopt Baby Manji.   

Four years later, the government announced plans to ban commercial surrogacy entirely, citing health concerns and poorly run surrogate clinics. Patel calls it “a backward and inhumane step.” She believes there is nothing wrong with a well-regulated, voluntary contract between human beings, in exchange for money. “[Surrogacy] really is a win-win situation. A genuine family gets the gift of life, and [the surrogate mothers] are able to educate their own children, buy a house, and put food on the table.”

Life as a surrogate

The wife of a local manual labourer, 29-year-old Geeta* is another woman from Anand who has benefited financially from surrogacy. “This is my second time,” she says. “With the money from the first, I was able to build a house and send my children to school.”

Geeta left school when she was 14 years old and began working in the fields, earning between 500-800 rupees (US$7-11) per month, while her husband earns about the same. They were scraping by, struggling to feed their family of four. After hearing about the surrogacy programme through other women in her village, she visited the hospital.

Patel says the clinic thoroughly screens the women before accepting them into the programme: They undergo a pap smear, blood tests, and various exams to check for genetic diseases, including diabetes. For the first four months of their pregnancy, the women must live on the hospital grounds, though their families are welcome to visit, to ensure any medical needs can be addressed as soon as possible. When they reach their fourth month of pregnancy, surrogate mothers have the option to visit home for 10 days.

While Geeta was pregnant, she lived in an air-conditioned room in the basement of the Akanksha Hospital with eight other women. Just after 1pm every day, the women queue for thali – a traditional Indian meal of rice, lentils, vegetables and pickles. They also eat iron-rich fruits and nutritious snacks throughout the day.

The women have medical check-ups two to three times a day, otherwise the time is theirs. They play card games or watch television together in the evenings – usually a soap opera or a Bollywood film – and become very close, almost like sisters, during their pregnancies. Like many of the women, Geeta’s children visited regularly and often stayed with her at the hospital on weekends. “[My children] knew I was a surrogate mother, although they didn’t understand what that meant. They are only three and nine,” Geeta says.

After they give birth, surrogate mothers and all of their dependents have access to free checkups provided by the Anand Surrogate Trust, also founded by Patel, for up to three years. The child’s parents can continue a relationship with the surrogate mother if they choose, but they’re not contractually required to do so.

Geeta keeps in regular contact with the parents of the child from her first pregnancy. “They are an Australian couple. They both work in the corporate sector and have well-paying jobs. The baby is well-loved,” she says. “I am so happy [being a surrogate]. I wouldn’t have dreamed I could give my family so much.”

Divided opinions

Not everyone believes that surrogacy is a worthwhile service. In a 2010 interview with the Indian news channel NDTV, Mohan Rao, a professor at the Centre of Social Medicine and Community Health of Jawaharlal Nehru University in New Delhi, likened it to “reproductive trafficking.” He believes that surrogate mothers – most of whom are cash-strapped – see surrogacy as a quick way to make money.

Nishma Jethwa, a Mumbai-based lawyer and gender activist, believes that the surrogacy bill has been framed as a way to prevent unethical practices, including the exploitation of surrogate mothers and children. “It is clear that in some areas of the legislation, an attempt has been made to [prevent exploitation],” she says. For example, she says the bill aims to protect surrogate children from abandonment and regulate clinics. 

“Unfortunately, banning certain types of couples – like live-in couples, non-heterosexual couples and single parents – from using a surrogate creates an unnecessary value judgement on who should and shouldn’t be able to use surrogate mothers,” adds Jethwa.

She argues that the bill could backfire.“There could be cases of manipulation,” she says. “Women in an unequal power dynamic – for example, hired help and daughters-in-law – could be forced to become surrogate mothers with no compensation whatsoever.”

Some critics also argue that the bill is elitist and sexist. They believe that by highlighting examples of malpractice, rather than successes, the bill denies women genuine opportunities and freedoms. It also denies them agency over their own bodies.

Unsurprisingly, all the women at Akanksha oppose the bill. They are happy to be surrogates, saying that they value the opportunity to provide for their families. At the same time, since India has no laws to regulate the trade, many other women are vulnerable to exploitation by profit-driven infertility clinics.

As a primary concern, the bill argues that, due to the “lack of legislation to regulate surrogacy,” clinics “misuse” the practice.” According to Akanksha’s infertility researcher who spoke with Ariana on the condition of anonymity, it is true that many unregulated and unhygienic clinics in India exploit women and do no provide adequate care.

“The women who visit these clinics to become surrogates are severely underpaid, not well taken care of, not given proper counselling or medical treatment,” adds Patel. “This is one of the reasons the government is introducing the bill. But I feel it will make the matter worse, as the trade will go even further underground. Where there is a demand, there will always be a supply.”

In October 2019, the death of a surrogate mother sparked a debate over the concern for exploitation of women. A 42-year-old Delhi-based woman allegedly concealed a number of medical issues – including tuberculosis, hydrocephalus (a buildup of fluid in the brain) and depression –  from a clinic that had hired her as a surrogate. However, a report by the Times of India in October 2019 revealed that the clinic didn’t properly screen the woman during the hiring process. The woman died due to complications when she was 17 weeks pregnant with twins.

The government also cited concerns about women’s awareness about the risk factors of surrogate work. A small-scale study conducted in 2015 by Wiley’s Obstetrics and Gynaecology Journal on surrogate mothers in New Delhi, found that none of the 14 mothers interviewed could explain the risks involved in the in-vitro fertilisation process.

Furthermore, the study found that the majority of doctors at fertility clinics in New Delhi make unilateral decisions when it comes to medical procedures. In some cases, they only consulted the commissioning couple and did not adequately inform the surrogates. The lack of knowledge and agency raises concerns about the interests of surrogate mothers.

Uncertain future

In India’s patriarchal society, which expects women to be homemakers, both Bharti and Geeta are challenging social structures by becoming their families’ primary breadwinners. The two women once lived below the poverty line, but have since been able to build homes, feed their families, and pay for their children’s educations. “I hope [my children] understand that by studying they can become whatever they want,” says Bharti. Likewise, Geeta hopes that her daughter will eventually become a teacher or a doctor.

In addition to creating an unregulated, underground trade, Patel says that many infertile women who choose surrogacy will suffer from the bill’s restrictions. And since Indian society pressures married women, Patel feels the bill will exacerbate these issues.

“In Indian culture, a woman can face ostracism and even be kicked out of her home [if she can’t conceive],” says Patel. “The man may even divorce the woman and marry elsewhere.” Patel goes on to say that the shame and stigma felt by women in these situations will give rise to problems, including depression and anxiety.

In September of 2019, Patel met with prospective surrogate mothers at Akanksha to discuss the law. She says they are all scared and uncertain of their future. “I will have to go back to becoming a maid, or working in the fields,” says Bharti. “The money will not be enough, but what other choice do I have?”

Meanwhile, Geeta hopes that the money she has saved will allow her and her husband to start their own business. She says that they are hopeful they will not have to return to manual labour. “Maybe we can open a vegetable stall or sell fruits,” she says.

Though the forthcoming law directly affects the women at Akanksha, Patel says she is proud that surrogacy has enabled her to turn the clinic into a world-renowned institute, offering women from low-income families a chance of a better life. “Because of surrogacy, I have been able to build such facilities for the women and ensure their well-being.”

*Surnames withheld at request of subjects.