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Protecting the Rights of Surrogate Mothers in India
By NILANJANA S. ROY
Published: October 4, 2011
NEW DELHI — The plot of the Marathi-language film “Mala Aai Vhhaychy” (“I Want to Be a Mother”) asks a deceptively simple question: Does Yashoda, a woman turning to surrogate motherhood as an escape from poverty, have any claim on the child she is under contract to bear for Mary, an American fertility tourist? In the melodramatic world of Indian cinema, the answer is a heartwarming yes. In real life, it may not be that easy to script a happy ending.
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Since 2002, when commercial surrogacy was legalized in India, the surrogacy industry has boomed, becoming a key part of the country’s lucrative medical tourism market. The cost of surrogacy for prospective parents is about $14,000 in India, compared with an estimated $70,000 in the United States. A 2008 study valued the assisted reproductive industry in India at $450 million a year.
Across India, fertility clinics attempt to replicate the success of Akanksha and other clinics in the small town of Anand in the western state of Gujarat, which was the country’s first surrogacy hub. But the boom masks growing concerns about the rights of the women, many of them from poor homes and sometimes illiterate, who choose to become surrogate mothers.
Up to now, India’s laws have not addressed directly the complexities of surrogacy, though an assisted reproductive technology bill is before Parliament and expected to be ratified by early next year. But a team of researchers from Sama, a nongovernmental women’s health organization, has raised concerns about the bill in a recent paper. “The many ethical issues that are emerging out of unrestrained spread of the technologies remain,” the researchers write.
The legislation attempts to regulate the clinics and doctors engaged in reproductive technologies and their relationship with prospective surrogate mothers.
While Sama welcomes this attempt to govern the industry, it fears the legislation favors the rights of the commissioning couple over those of the surrogate mother. The bill makes it clear that women engaged in commercial surrogacy will have no rights over the child they have contracted to bear. The proposed law does not spell out what a surrogate mother would be paid in the case of a miscarriage or other complications during pregnancy.
Its provisions would stipulate that only women between the ages of 21 and 35 can be surrogates. It sets the maximum number of times a woman can contract her womb for surrogacy at five live births, in contrast to three in an earlier draft. But Sama notes that it does not address the number of assisted reproductive cycles a woman can experience, an important issue for the women’s health.
When the first clinics opened their doors in Gujarat, Akanksha’s founder, Dr. Nayna H. Patel, said in a much-repeated quote that surrogacy was a win-win situation for all. Many Indian doctors agree, arguing that it is in the interest of clinics to take good care of the women involved in commercial surrogacy.
“Most clinics provide protection to the woman in many ways, looking after her health, nutrition, daily needs, and some will even offer to take care of her family,” Dr. Ruma Satwik, associate consultant at Sir Ganga Ram Hospital in Delhi, said in an interview.
But currently, the responsibility for taking care of the women is left to individual doctors and clinics.
“We have all kinds of legal documents to protect the commissioning couple,” Dr. Satwik said. “The surrogate mother stands to lose in the absence of concrete laws to protect her, and the provisions of the ART Bill are probably not enough.”
In 2008, Dr. Sadhna Arya, a gynecologist in Jaipur, was part of the team of doctors involved in the complex case of a baby who was born to an Indian surrogate mother after the contracting couple, from Japan, decided to divorce. At the time, Dr. Arya spoke out against the way in which surrogate mothers were treated in India: “You have treated the surrogate mother like an object, used her as a factory.”
Today, Dr. Arya says bluntly, “Surrogate mothers are from poor backgrounds and are hardly aware of their rights. The ART law is trying to find a balance between the legal and the unethical, but unethical practices still remain.”
The U.S. journalist Scott Carney investigated surrogacy clinics in Anand for his book, “The Red Market,” on the hidden trade in human bodies and body parts.
“Before India, only the American upper classes could afford a surrogate,” he wrote. “Now it’s almost within reach of the middle class. While surrogacy has always raised ethical questions, the increasing scale of the industry makes the issue far more urgent. With hundreds of new clinics poised to open, the economics of surrogate pregnancy are moving faster than our understanding of its implications.”
Manju, 29, a domestic helper in Delhi who asked that her full name not be used, said she had thought about surrogacy ever since her sister-in-law gave birth to a surrogate baby two years ago.
“She went off to Gujarat, and the family kept it very quiet,” said Manju, alluding to the stigma that sometimes attaches to surrogate mothers in India. “But she made a lot of cash, much more than my income for a year.”
A month ago, Manju was approached by the representative of an unlicensed surrogacy clinic in the northern state of Haryana looking for surrogate mothers. She said she might take them up on their offer.
“It’s good money,” she said. “Risks? What risks? Any fool can have a baby, it takes a smart woman to get paid for it.”
Mommy to Damon TS to Kyle 10/07 GS for E and R--WE ARE PREGNANT!!
Try 1--Sept 2010 negative Try 2--Jan 2011 negative
Try 3--May 2011-miscarried at 5 weeks
Transfer 4---PREGNANT!!! BFP @ 5.5dp3dt Beta at 11dp3dt was 164.6
Ultrasound showed TWO BABIES!!!!!!!!!!!!!!