Roundtable

Surrogacy in India
A healthy controversy?
The incidence of surrogacy is increasing in India, contributing to fertility
tourism in the country. However, this still remains a contentious subject.
Here are some expert opinions that clarify many of the questions about
surrogacy in India.

Dr Asma Mohd Yousuf

T
he term ‘surrogate’ was quite uncommon in the last decade, but this is not
the case anymore. As a matter of fact, surrogacy was not uncommon in the
past either, but was not much spoken about then. In India, commercial
surrogacy was legalised in 2002 by the Supreme Court of India. Since then,
India, besides tourism, has become a preferred destination for many to fulfill their
parenthood dreams. However, the legal aspects surrounding surrogacy are complex.
In some jurisdictions, the possibility of surrogacy has been allowed and intended
parents are recognised as legal parents of the child since its birth. Yet, in many other
countries, commercial surrogacy outside the country is considered illegal. Thus,
children born through surrogacy to people belonging to these countries may land up
‘stateless’ due to divergent laws that may not grant them citizenship.

Dr Alka Kumar
Consultant Gynecologist, S L Raheja Hospital (A Fortis Associate), Mumbai
Surrogacy is an arrangement in which a woman
carries and delivers a child for another couple
or individual. Intended parents may arrange for
surrogacy in case of infertility or medical issues
that make pregnancy risky in the female partner.
Other clients could be single parents or gay
couples. The parties that are usually involved
in the entire surrogacy process include the biological
parents, surrogates, infertility specialists, lawyers and
surrogacy agencies.
A meticulous and stringent criterion is followed
while screening for a surrogate. Once finalised, the
financial & legal agreement is then made between the
surrogate and the commissioning couple.
India is presently emerging as a leader in international
surrogacy and fertility tourism. Clinics charge anywhere
between ` 9 and 14 lakh ($ 22,00-35,000) for a complete
package, which includes fertilisation, surrogate’s fee,
delivery of infant at the hospital, medications, doctor’s
fees and lawyer’s fees. Even after including the ticket
fares, cost of the medical procedures and hotel tariffs, the
surrogacy expenditure to the intended parents comes to
a third of the amount that would have been spent on the
same procedure in the UK.
The birth certificate of the child would bear the
names of the intended parents. In case of heterosexual
couples with genetic contribution from both
parents, their names go on the birth certificate.
In case of same sex couple (or single father), the genetic
father’s name alone goes on the birth certificate. If
donor egg In Vitro Fertilisation (IVF) is performed, the
names of both partners in the heterosexual
couple go on the birth certificate. There is no
mention of the egg donor or surrogate mother on
birth certificate.
Commercial surrogacy is legal in India and is
recognised by the Supreme Court of India. The
guidelines for surrogacy in India were laid down
by the Indian Council for Medical Research (ICMR)
in 2005. The success rate of surrogacy in India
can be expressed at about 45 per cent of carry-
home baby in procedures using fresh embryos and
25 per cent in those using frozen embryos.
Hong Kong and Taiwan are the other countries
known for fertility tourism and where surrogacy is
popular. In fact, many Indian women go to these
countries for sex selection (especially for male child),
as gender determination is prohibited in India.

30 I February 2011

Dr Aniruddha Malpani
Medical Director, Malpani Infertility Clinic, Mumbai
Surrogacy is an expensive and complex treatment
option, which is best reserved for women without
a uterus. India has now become the preferred
destination for surrogacy, as several high-quality
IVF clinics are available here that provide excellent
medical care with high success rates at economical
prices. Besides, there is a well-defined legal framework in
India, with legal specialists to guide the intended parents
throughout the process.
At present, each IVF clinic is governed by the local
medical authority (eg, local Municipal Corporation).
The Assisted Reproductive Technology (ART) Bill has
Dr Duru Shah
Chairman – Gynaecworld - The Center for Women’s Reproductive Health, Mumbai
Couples with health problems or general
inability to conceive still have the option
of experiencing parenthood with the help
of surrogacy. It also gives a chance to single
parents or couples with an alternate lifestyle
to have a child of their own without going
through the adoption process.
In India, the costs involved in the surrogacy
process are approximately five times less as compared
those in some other countries. The approximate
cost to the intended parent(s) is about ` 10-12
lakh, which includes screening of surrogate, IVF
procedure, followed by antenatal check-up,
monitoring and medications, hospitalisation &
delivery of surrogate.
Dr Hrishikesh Pai
Gynecologist & Infertility Specialist, Lilavati Hospital, Mumbai, and Fortis La Femme, New Delhi
Indications for surrogacy include conditions
when a patient is unable to become pregnant
due to uterine problems like fibroids,
adenoids, repeated surgeries, cancer therapies,
hysterectomy or conditions of poor general
health like in congenital heart, kidney and lung
diseases. Surrogacy is also considered in dwarf
patients or single parents.
There are two types of surrogacy – natural and
gestational. In India, natural surrogacy is not allowed,
where the surrogate is also the biological mother of
the child.
In India, there are 450 IVF units, third in
the world after Japan and the US with 600 and
500 units, respectively. The nationalities that
usually travel to India for surrogacy are from
Roundtable
still not been enacted but is expected to happen soon.
This will give a major fillip to medical tourism, and
will also provide more clarity on appointment of
accredited authorities.
It is important that a legal contract be signed by an
expert legal consultant before the medical treatment
starts. This ensures that everything is aboveboard, and
that there are no legal hiccups later on. Taking shortcuts
can give rise to the tragedy of the birth of ‘stateless babies’,
who do not have the citizenship of any nation. This can
cause irreparable harm to the surrogacy service industry
in our country.
Moreover, the success rate of surrogacy in India is
about 60-80 per cent. Besides, there are fewer legal
hassles involved because surrogacy agreement is legal
in India. Indian clinics have also become competitive
not only in pricing but also in hiring and retention of
Indian females as surrogates. Also, in India, poverty
is the biggest and most important factor for women
choosing to be surrogates.
However, according to ICMR guidelines of ART Bill
and Rules 2008; 34(5), no woman shall act as a surrogate
for more than three successful live births in her life. The
governing bodies in India for surrogacy and surrogacy-
related procedures are the ICMR, Ministry of Health
and Family Welfare and the guidelines issued according
to ART (regulation) Bill & Rules – 2008.
the UK, Canada, Australia, the US and Israel.
There are about 40,000 IVF cycles done per year
in India, of which surrogacy constitutes 5 per cent.
Foreign patients form only 5-10 per cent of the
infertility treatment, whereas the Indian population
forms the bulk of patients with infertility problems.
As per the ICMR draft, the surrogate is paid
25 per cent of the money before pregnancy,
50 per cent during pregnancy and 25 per cent after
the child is born. However, arrangements can differ
as per individual settlements. The compensation
provided to the surrogates is in terms of
the manpower involved and comes to about
` 2-2.5 lakh. This compensation is offered in the form
of a token of gratitude, as one cannot commodify
bearing a child.
February 2011 I 31
Roundtable
Dr Indira Hinduja
Obstetrician, Gynaecologist & IVF Specialist, Jaslok Hospital, Mumbai, and Breach Candy Hospital, Mumbai
In the past, traditional surrogacy was carried
out where, like a wife, a woman had intercourse
with the man to bear a child biologically
related to her. Later, the artificial insemination
technique substituted the intercourse act.
In recent years, gestation surrogacy has
become more popular, wherein the surrogate
mother practically only lends her womb for carrying
the pregnancy to term. Here, conception takes place
in the clinic through IVF and embryo is transferred to
the surrogate mother. In this case, the commissioning
couple is the genetic parents of the child.
There are different kinds of surrogate depending
on the system of recruitment, eg, in non-commercial
surrogacy, the surrogate will usually be a family member
or friend, whereas in a commercial system, the surrogate
is unrelated and has to be paid compensation.
In countries like Japan, Hong Kong, Hungary and Italy,
commercial surrogacy is banned and condemned, which is
also the case in Saudi Arabia. In India, the Supreme Court
of India legalised the practice of surrogacy in 2002. As per
the laws in India, a surrogate mother shall, in respect of
all medical treatments or procedures in relation to the
concerned child, register at the hospital or such medical
facility in her own name and shall clearly declare herself
to be a surrogate mother. The birth certificate issued in
respect of a child born through surrogacy shall bear the
Dr Shivani Sachdeva Gour
Gynecologist & Infertility Expert, Phoenix Hospital, New Delhi
A major advantage of surrogacy is that it
allows one or both parents to be genetically
related to the child. As against adoption,
surrogacy involves the intended parents at
the time of conception as well as throughout
the pregnancy. With a decline in the number
of newborn infants available for adoption,
surrogacy offers childless couples another alternative
to have a child of their own.
Individuals from foreign countries travel to India
for medical care due to a number of reasons like lower
prices, less wait times and infrastructure equipped
with advanced technological facilities. Besides, there
are plans that offer complete travel packages in India,
including airfare, transfers and surgery costs, which
are less than the costs in the US. All these make
medical tourism more realistic for everyone, and not
just for celebrities.
In India, the approximate cost for a surrogacy
procedure comes to $ 25,000 as compared to
$ 1,25,000-$ 1,50,000 in the US. Also, as per
32 I February 2011
names of the genetic parents. The person(s) availing the
services of a surrogate mother shall be legally bound to
accept the custody of the child and a refusal to do so shall
constitute an offence.
All information about the surrogate shall be kept
confidential and information about the surrogate
shall not be disclosed anywhere other than the
central database.
ICMR and National Academy of Medical Science
(NAMS) guidelines have suggested formation of a State
Board and a National Board for regulating ART clinics.
The State Board shall have the responsibility of laying
down the policies and plans for assisted reproductive
clinic in the state, taking into account the policies,
recommendation and regulations of the National board.
The Director General of ICMR will chair the National
Board. These two authorities will monitor the functioning
of the clinics, regularly inspect the premises and grant
the licence. The licence will be renewed only after the
authorities are satisfied with the working of clinics.
Surrogacy stands as the pillar of hope for many
infertile parents with the desire for a child. Taking up
surrogacy as an option is quite a dilemma and, if not
counselled properly, can come as an unexpected blow
to the infertile couple. Other options like continuing
treatment or adoption should also be put forward to
the patient.
the guidelines in India, surrogates have no legal
rights on the child. Moreover, everybody wants
a healthy surrogate for their child. Women in
India are generally preferred as surrogates
because they are healthy and do not drink, smoke or
do drugs.
A surrogate can be selected by contacting an agency
that screens surrogates or an independent surrogate,
who can provide her complete medical records.
Tests results that rule out diseases like AIDS, hepatitis
B & C, STDs and rubella are very important.
According to Indian guidelines, a surrogate can
deliver only three times in her lifetime. The governing
body that rules the clinics and hospitals carrying out
these processes is based on certain guidelines in ICMR
in chapters 1-6.
Another country that is attracting attention in
fertility tourism is Thailand. But the facilities there are
more expensive as compared to in India. Besides, in
Thailand, people face language problems as English is
not widely spoken there.