Global Surrogacy in India: Legal, Ethical and Human Rights Implications of a Growing “Industry”


In 1998, the dramatic custody battle over Baby M, a child produced through a gestational surrogacy arrangement, gripped the nation.  Since that time, tighter restrictions on international child adoption along with a surge in medical tourism, the acceptance of alternatives in family building in Western societies, the trend of women delaying motherhood until well into their thirties, and the lack of laws regulating surrogacy have contributed to a boom in global surrogacy.  But the contexts of poverty and gender inequality in which these trends are taking place underscore the troubling elements of international surrogacy as a family-building strategy. 

Gestational surrogacy, the latest trend in reproductive tourism, a sub-industry of medical tourism, has increased exponentially over the last several years as Americans, Europeans and others seek out surrogacy services abroad. Advances in assisted reproductive technology (ART) have made gestational surrogacy more viable than reproductive endocrinologists and other fertility specialists thought imaginable just twenty years ago. Unlike in traditional surrogacy, in which the surrogate’s own oocyte is fertilized by the intended father’s sperm and can lead to legal and other complications with parenthood and adoption (such as in the Baby M case), in gestational surrogacy another’s oocyte (such as from the intended mother or an anonymous donor) is fertilized and then transferred to the gestational surrogate, eliminating genetic ties between the surrogate and the baby she is carrying. In-vitro fertilization, (IVF) in which a woman’s oocyte is fertilized outside of the womb in a laboratory setting and then transferred to a gestational carrier’s uterus, has made the option of gestational surrogacy viable for women experiencing infertility, gay couples, and single men.

India has taken advantage of the medical tourism surge in general and is at the forefront of the global surrogacy market. Surrogacy which was legalized in 2002 but remains unregulated, is now estimated to already be a $445 million a year business in India. It is estimated that there are over 350 clinics offering fertility services to couples from all over the world traveling to India to take advantage of the affordable and legally painless surrogacy options. Many of these couples are citizens of countries where surrogacy is either illegal or unaffordable.  Surrogacy costs about $12,000 to $20,000 per birth in India, whereas in the U.S., it is upwards of $70,000 to $100,000. One Indian clinic that was featured on Oprah was touted on the show as creating a win-win situation for both the childless families requiring the services of the surrogate and for the gestational surrogates themselves, who are mostly poor rural woman in dire 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. 

With the rise of global surrogacy in India, scholars and journalists have begun to voice concerns regarding the ethics of the practice, especially considering it is unregulated and open to exploitive situations. In some of the Indian clinics, the 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. Supposedly this practice not only allows the clinics to monitor the surrogates’ activities and behaviors during the pregnancy, but also is seen as protecting the surrogate from ridicule by family members and neighbors; most Indian women acting as surrogates keep it a secret because it is seen as dirty or immoral. What is alarming about the recruiting process is that it is notably similar to the recruitment process used by human traffickers to coerce rural women into sex work in cities. Also similar to other trafficking situations, the women have to sign documents (often in English) that they cannot read and then are kept “under lock and key” until the obligations set forth in the contract are fulfilled. Most surrogacy contracts prohibit sexual contact between surrogates and their husbands and surrogates are generally allowed only minimal contact with their partners in any case.

In one Indian surrogacy case, mentioned in Mother Jones, an Indian surrogate died after giving birth.  The woman began hemorrhaging, and the clinic was not able to control her bleeding.  The young surrogate’s husband was called to get an ambulance and accompany his wife to the hospital.  She died en route.  The clinic refused to accept any responsibility for her death.

Other concerns raised include the “renting” of Indian women’s bodies by westerners, the lack of counseling services available to surrogates after the relinquishment of their gestational babies, the use of mandated and scheduled c-sections by clinics, which allows clinics to schedule quick deliveries and enable the intended parents to pick their child’s birthday, among other issues.

Not only are there ethical concerns related to the global surrogacy market, but there are legal concerns, as well. There have been several well-publicized cases in which babies born from Indian surrogacy arrangements were stateless, in which neither India nor the parents’ home countries recognized the babies’ citizenship. One case from 2008, referred to as the Baby Manji case  involved a Japanese couple who contracted with an Indian gestational surrogate and an anonymous oocyte donor. The couple divorced and the contracted mother was no longer interested in parenting the infant. The genetic father of the baby was not able to secure a Japanese passport for the infant because Japan considers the woman who gives birth to a baby, in this case the surrogate, to be the baby’s mother. India does not allow single men to adopt babies, but Indian law required the Japanese father to adopt the baby since the baby could not be issued a Japanese passport. Eventually, the Indian government issued the baby an identity certificate but no passport and the Japanese issued a temporary visa. The baby’s Japanese grandmother eventually adopted the baby.  

In another case receiving media attention, the German Balaz family used a gestational surrogate with an oocyte donor and had twins in 2008. The twins had birth certificates issued by the Indian government with the intended parents listed on them. The German government does not recognize surrogacy, so in this case, the parents were not able to secure German passports for the twins. The Indian government had issued the twins Indian passports but when they found out that the twins were a product of a surrogacy arrangement, the government asked for the Balaz family to return the passports, rendering the twins stateless. The Indian government finally agreed to issue travel documents, but no passports for the twins to leave India so that adoption proceedings could take place in Germany. Eventually the German government granted the babies visas so that they could travel from India to Germany to be legally adopted by their German parents.

The picture of global surrogacy is extraordinarily complicated when one considers the different combinations of lineage, citizenship, ethnicity, and parentage combinations that are possible. For example, intended mother’s oocyte with intended father’s sperm, intended mother’s oocyte with donor sperm, surrogate mother’s oocyte with intended father’s sperm, surrogate mother’s oocyte with donor sperm, donor oocyte with intended father’s sperm, or donor oocyte with donor sperm. In all of these combinations, the oocytes and sperm may be from people of multiple nationalities and ethnicities. Considering that parentage is commonly defined by biological terms, the consequences to the offspring of babies who are products of a surrogacy arrangement remain to be seen.

These ethical dilemmas and legal quagmires are a starting place for discourse. However, it is imperative that global standards be developed and the USA, European, and other nations take an active role in setting requirements. This can be done under rights of citizenship and immigration. The past has proven that governments tend to be slow to respond and preventive planning is essential to curb abuses and ensure the rights all involved—surrogate mothers, children, and the contracting individuals and couples.

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  • crowepps

    If young men could stop treating the women they are involved with like crap in their obsession to prove, over and over and over again, to the group of male buddies they spend the majority of their time hanging around with that they’re ‘not-gay’, maybe they could join the grownups who prefer mutually supportive, loving relationships with people that we actually like and respect.

  • anonymous99

     

    It’s been a while.  I keep checking back here from time-to-time to read articles. A lot of good stuff even for a guy like me.

     

    Yes, marital slavery.  If you can’t leave your marriage because you’ll lose your child due to our “custodial” parenting system you’re a slave in your marriage. You’re also a slave if you face catastrophic post-marital “support” and asset theft.  For American men it seems the only way to protect yourself from our “family” courts is through surrogacy.   I think the time for this is long overdue.  I see it not only as a legitimate option for American men, but the preferred choice.  

     

    Of course, we could address the imbalances in our system but I’m not holding my breath for that.

     

    I hardly ever hung out with the guys before or after I got married.  I was always there for my wife – I even put her through college.  I loved my wife – she was my best friend.  And then one day she decided to quit her career to be a stay-at-home-mom despite our long-time agreement that we would both work.  When I protested she said “if you don’t like it I’ll take (child’s name here) and leave.”  I was absolutely stunned to find out she could, in fact, do that.  I stopped loving her that day.  I stayed so I could be a father to my child every day of her life, not a visitor.  And I don’t regret that decision one bit.

     

    But now I’m stuck taking care of a woman I despise, probably for life according to the laws in my state.  Had she continued her career we could have both retired early, but now I’m stuck with who knows how many more years of working a job I hate.  She never has to work again.  This is the thanks you get in America for being the supportive and loving man you seem to be longing for in your post.

     

    As for the “conditions” under which the surrogates operate doesn’t it come down to personal “choice”?  If an Indian woman wants to do this shouldn’t she be able to freely elect to do so?  Don’t women have the right to control their own bodies without government interference?

     

    Thanks to rhrealitycheck.org for always allowing me to post opposing views.  I really do appreciate the opportunity.

     

  • crowepps

    But now I’m stuck taking care of a woman I despise, probably for life

    You are not stuck.  You are making the choice not to risk change because money is more important to you than happiness.  I highly recommend you seek counseling.  Even if she won’t go, you might resolve some of the issues which are sure to be making your children unhappy.

  • anonymous99

    Yah, you’re right crowepps.  I’d be “happy” living with my daughter 2 week-ends a month and living in slave quarters while my wife lounges around in the single family home I’m paying for.  You’re a real trip.  As I always say better a slave in the home I’m paying for with my daughter and money close at hand, than in a small apartment or trailer as a “non-custodial” parent and no money.

     

    My wife and I went to counseling.  After my wife screamed at me “life isn’t fair” and the counselor told me I should be happy I “can take care of a woman” I walked out.

     

    My wife knows she has her own personal manslave.  The only question here is why YOU refuse to see the obvious inequality in this situation.  I thought feminists believed in equality????

  • goatini

    There’s A LOT of information missing.  

     

    So your wife was your “best friend” until the very day that she decided to be a SAHM?  And on that very day you “stopped loving her”?  That doesn’t sound like any kind of real love for her, or for your child.  If she WANTED to work, that’s HER choice, but she wouldn’t be the first married woman to change her mind about wanting to stay home with the kids.  If I am to believe your story IS real, it seems like you two didn’t really discuss what taking care of a child would entail.  What if there had been complications in delivery that would compromise your wife’s health and prevent her from going back to work?  Would you still “despise” her for wanting to stay home with the child?

     

    And you state that “she never has to work again”?  I do not see how you figure that, since I presume she will still be alive and well after 18 years.  Besides, the vast majority of states do not provide for any significant alimony, so I doubt she would be living the Life of Reilly on the child support check.  

     

    There are just too many holes in your story that detract from its credibility.  

     

    Re surrogacy – so after you have your own personal child through your purchased third world womb, who is going to care for it while you are at work, doing errands, taking care of things that need to be done?  Day care?  Your mom?   If the latter, is that fair to expect your mom to raise your child?

     

    So far, I’m finding your story about as believable as a Letter To Penthouse.  

  • goatini

    If we are to believe your story, the ONLY reason you stopped loving your wife is because she now values being a SAHM more than being a wage slave.

     

    So if her sole value to you is as an income producer… why does it surprise you that she would see you in the same way?

  • anonymous99

    I need to get going but…  I stopped loving her because she extorted her way out of work by using our state’s custody laws against me.  Don’t you know extortion when you see it?  OK we plan for 10 years to both continue working after we have kids and she pulls out the “custodial parent” gun and puts it to my head.  I’m supposed to be OK with that, eh?

     

    Your characterization that my situation is made up is just plain insidious.  Refusing to see the inequality that exists in our family court system doesn’t make the problems go away.

  • beenthere72

    how do you stop loving someone so instantly and definitively? 

    Maybe you created that sense of entitlement in your wife when you put her through college and whatever else you did for her just as generously?

    Even as a step-mother, I know that motherhood is a job in itself much more than fatherhood.    If your wife chose to leave her job to be a full-time mother, who are you to fault her for that?   And especially who are you to instantly stop loving her for that?   

    I can only imagine what she must be thinking:  according to my husband I must make babies and make money, and now because I don’t make money, husband doesn’t love me.   And on top of all that, I have to keep living with the man that doesn’t love me because of the babies.

    You’re a real catch, 99.

    I, myself, would likely never choose to be a stay at home mom, but I can’t believe you could turn your love off with a flip of a switch for the woman that had your children just because of money. 

  • crowepps

    I’m sure your daughter is well aware of and made pretty unhappy by the extremely dysfunctional relationship between you and your wife.  For her sake, please, try a different counselor.

  • princess-rot

    That always gets me about sexist men – they view women’s worth as based solely on their usefulness to men – then they act surprised when it turns out that the woman also views him solely as a producer in service of her, albeit in a different way. Somehow, they missed the memo that a lifestyle based on shallowness is – duh! – completely fake. If you seek a woman who matches the matches the patriarchal definition of a woman, you are inevitably going to find a woman who is invested in patriarchal definitions. Shallow people attract other shallow people. Go figure.

  • crowepps

    It seems to me he’s hung up on the kindergarten version of ‘fair’.  His report that at the counselor’s his wife “screamed life isn’t fair” at him seems to indicate that his complaint was that her actions weren’t ‘fair’ in that both of them should be working because his ‘plan’ was to be able to retire early.  The fact that ‘both of them’ were probably not doing an equal amount of housework and childcare wouldn’t enter into it, because that wasn’t covered in their premarital agreement.

     

    The problem with this kind of ‘fair’, needing to stick to ‘the plan’ no matter what because it was agreed to, is that it doesn’t take into account that situations change, and when situations change, the plan has to be modified.  Just as a for-instance, working for $15,000 a year, paying higher second-income taxes on that amount, and then having to lay out $7,000 plus for quality daycare makes little economic sense.

     

    His assumption that she’s never going to go BACK to work seems groundless.  In her position, living with someone who ‘despises’ her and who feels betrayed because life means plans have to change sometimes, as soon as my child was in first grade I would be heading right back to the job so I could save up enough to get a divorce.

  • irvin-0

    Well written piece..insightful. 

     

    Thank you Nicole.