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Surrogacy in India

4 min read

The surrogacy debate is grabbing headlines in India and we thought it is time we pen down some thoughts around it.

What Is “Surrogacy”?

Surrogacy indicates an arrangement where another woman gives birth to a child for a couple who wants to have kids but cannot due to some reason. The reason can be anything from infertility, medical conditions or even unwillingness to reproduce.
There are two kinds of surrogacy – Full surrogacy and partial surrogacy.

  • In full surrogacy, the embryo is implanted in the surrogate mother’s womb. This embryo would have been developed through in-vitro fertilization, and could a combination of any of the three:
    • Egg and sperm taken from the couple who wants to have kids
    • Sperm from the intended father and egg from a donor of couple’s choice
    • Egg and sperm come from donors
  • In partial surrogacy, the sperm still comes from the father, but the egg comes from the surrogate mother. The fertilization, in this case, is done either through artificial insemination (the technique where sperm is directly inserted into the cervix of the surrogate woman, making pregnancy possible) or intrauterine insemination (a technique where high quality sperm is directly inserted into the woman’s womb using a catheter)

When Is Surrogacy An Option For You?

If you have a medical condition that makes it difficult or dangerous for you to get pregnant, but you still desire to have a child of your own, then surrogacy might be the right option for you. The following are the cases where you might want to explore the idea of surrogacy for you:

  • You are 40+ and pregnancy is a high-risk option for you
  • Your womb is malformed or has issues that prevent a healthy pregnancy
  • You have had no problem getting pregnant, but your body find it difficult to stay pregnant, resulting in multiple miscarriages
  • You or/and your spouse have issues with fertility and IVF treatment has not been successful for you

Surrogacy in India

What Are The Risks Of Surrogacy?

One of the main factors you need to consider is the health of the surrogate mother you have chosen. Her ability to get and stay pregnant plays a major role in the success of surrogacy. Further, since the baby will be growing in her womb, she should be screened for various infections that she might pass on to the baby.
Of course, all the risks involved in a usual IVF treatment is applicable if you are going for a full surrogacy, especially in terms of success rates.
Another major aspect to watch out for is the legality. If you are thinking seriously about surrogacy, then we recommend you consult a lawyer for legal advice on how to proceed.
And finally, a less tangible risk factor is the feelings of the couple involved. You and your spouse need to be on absolute same page when it comes to surrogacy. Again, we recommend you talk in detail with your doctor and even go for counselling before making the final call.

The Surrogacy Debate in India

Surrogacy is legal in India, as long as at least one of the couple who wants to go for it is Indian.
This was not the case until late 2015. India was till then a “surrogacy hub” for couples world over who wished to have kids but could not. However, this “commercial surrogacy” sector (i.e. the surrogate mother is paid to carry the baby inside her) was highly unregulated. At the same time, the sector was growing at an extremely fast rate, driven by:

  • Liberal or lack of laws around surrogacy
  • Increasing broth rates across the world that increased the demand
  • Easy availability of poor woman willing to take up surrogacy that increased the supply

The market is estimated to be $445 million per year by some estimates, while other peg it at as high as $2.3 billion. The risk of having such a huge sector unregulated came to light in 2008 during a Supreme Court case (called Manji case). The intended parents got divorced during the pregnancy of the surrogate mother and the custody of the kid became an issue, as the mother refused to accept the child and Indian law does not allow custody of kid to single men. While the child was ultimately handed over to the grandmother, the case threw open the need for some kind of regulation in the sector. This was the origin of Assisted Reproductive Techniques (Regulation) Bill. When the bill was finally passed in Nov 2015, it completed changed the sector and resulted in lot of hue and cry especially from those who have been profiting from the liberal laws earlier.

  • Only Indian couples can opt for surrogacy in India. Or at best, at least one of the intended parents need to be Indian. Foreign couples cannot avail these services in India any more
  • “Commercial” surrogacy is prohibited. That is, you (not even Indian couples) can pay anything more than the medical expenses to the surrogate mother

For many rural poor women, surrogacy had become a solid means of income in the last few years. These women are protesting the current rule. However, the Government’s stand is that we are not to exploit the poverty of these woman. Technically, a couple pay around Rs.2-5 lakh to agents, out of which only Rs.75,000 or Rs.1 lakh go the surrogate woman. So in some ways, the intermediaries and doctors make much more than the women involved.
As we pen down this article, the debate is ripe on the whether the Government is right or wrong in imposing these laws.

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