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Surrogacy

by Seema Upadhyay (writer), Mumbai, September 03, 2009

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Surrogacy- A ray of hope for Childless couples!!

India is foremost in medical tourism whether it is for kidney transplant, heart, or cataract surgery or infertility treatment; thanks to the low cost and the medical expertise. Infertility treatment and easy availability of local women opting to help foreigners have babies has put India on the global map of the so called reproductive tourism. Surrogacy is procedure in which the sperm and the egg of the couple is fertilized externally using In-Vitro fertilisation and then inserted in the womb of a woman; who bears the child. Rudy Rupak, co-founder and president of Planet Hospital, a medical tourism agency with headquarters in California, said he expected to send at least 100 couples to India this year for surrogacy, up from 25 in 2007, the first year he offered the service. Lower prices in India make surrogacy affordable by middle class Americans. By some estimates Surrogacy in India is already $ 445 million business.

It’s no wonder then; that citizens of US, Australia, Canada and other countries know more about Anand, Gujarat than the Indians. Making Surrogacy popular in the backwaters of Anand, which has a dairy community of just 150,000 people is the effort of Dr.Nayna Patel who runs Akansha clinic in Anand.

47 years old Dr. Patel who specializes in infertility treatment helped a local Anand woman to be a surrogate mother for her UK based daughter in the year 2003; giving birth to twins and made world headlines. After this case; Dr. Patel was flooded with inquiries from world over from childless couples who wanted to have children through surrogacy. In India Surrogacy costs about $ 12,000 compared to US where it is $70,000. Moreover laws in US and UK do not allow the surrogate woman to charge the childless couple. In India there no such  laws on surrogacy, well we will discuss that later.

Dr.Nayna Patel, Medical Director, Akanksha Clinic, a MD with six gold medals and running the only IVF/ICSI centre in Gujarat since 1998; featured on Oprah Winfrey Show and Good Morning America of ABC News; had her work documented on BBC, whereas Discovery channel is currently working on a documentary on her; She has also been invited to Harvard University to deliver a lecture on Surrogacy. Well quite an achievement and this woman has single handedly put India on Globe through her works of helping not just couples suffering from infertilities but has also bought joys to the families of surrogate women of Anand and nearby villages by ensuring suitable compensation for them. She has set up a team of people which includes counselors and financial advisors who guide the illiterate surrogate women to save and use their money smartly. She has also set up a fund for the education of the children of these women.

To know why foreigners and now even Indian couples flock to Anand for Surrogacy; I decided to speak to Dr. Nayna Patel. Here is an excerpt of the Q&A:

Q: Who should opt for surrogacy?

A: Any woman who has infertility problems due to kidney transplant, endometriosis, cancer and had a uterus removed can opt for surrogacy.

Q: Who should be an ideal woman for surrogacy?

A: Dr. Patel: Any healthy woman between the age group of 21 -45 years can be a surrogate. She shouldn’t have any medical history of ailments and should be free of vices like smoking and drinking. She is should have one living healthy child.

Q: Are there any laws to check on surrogacy in India?

A: There are no laws in India. But there should be laws which should be in interest of the genetic parents as well as the surrogate woman’s interest and also the child.

Q: There is some reports which say  that a surrogate who has had male children in past can give birth to homosexual baby; is it true?

A: No it is not true.

Q: What about lesbians and homosexual couples opting for surrogacy?

A: There are many doctors world over who help homosexual couple and there is nothing wrong in helping them as they are also humans. But I don’t help them as it is against my ethics.

Q: How many patients come to you on any average for surrogacy?

A: I receive 40-50 enquires per month from India and also different countries like US, Canada, Europe and even Pakistan.

Q: Do you source the surrogate mothers for them? If yes how and what are the charges of a surrogate?

A: I don’t source the surrogate mothers, infact they come to my clinic; after hearing about my clinic either from their family or friends. On an average we get them compensation of Rs3, 00,000 and in some cases Rs.4, 00,000. Some of the couples even take care of the education and upbringing of these surrogate women’s children.

Q: Under guidelines issued by the Indian Council of Medical Research, surrogate mothers sign away their rights to any children. A surrogate’s name is not even on the birth certificate. Can the surrogate mother still claim the child later?

A: No the surrogate Mother cannot claim the child. The couple gets into the contract with the woman; who decides to be their surrogate before getting impregnated.

Q: Hasn’t surrogacy commodified a woman’s womb; is it ethical?

A: The women of Anand have benefited from the compensation and have used it for the education of their children or for the wedding of their daughter. They are from the low income group and by opting for surrogacy they are not just helping in bringing the joy to the childless couple but also in improvising their life and there is nothing wrong in that. We have a team of counselors who help these women in using this compensation either for the education of their children or for buying a house or for investments. We have also set up a fund to help the people of Anand.

Q: How many surrogacy cases have you treated so far?

A: 72 surrogates since the year 2003.

Q: What is the cost of surrogacy?

A: We give Rs.3, 00,000 or Rs.4, 00,000 compensation to the surrogate woman and the cost of treatment at Akanksha varies from case to case depending on the treatment and procedures.

Q: What is the success rate of surrogacy?

A: 40-50% and it varies from case to case depending on the age of the couples being treated.

Q: Any interesting case study that you would like to share with us?

A: 6 months back, I was approached by a young Indian couple living in US. The wife had endometrial cancer and was to be operated. She wanted to conceive through surrogacy and the Doctors gave her a time period of one month. Within a month she came with her husband to Anand, went through the IVF procedure and flew back to US for her surgery. The surrogate mother is now 4 months pregnant. Treating such cases gives me immense satisfaction and joy.

Well Dr. Nayna Patel is surely bringing happiness and joy to the innumerable childless couples across the globe and also helping the women of Anand. But surrogacy in India does raise few issues; as was seen in the recent example of Japanese couple who were also treated at Anand at Dr. Nayna Patel’s clinic but the couple divorced before the birth of Manji, their baby girl and the surrogate mother didn’t want to keep the baby whereas the Indian adoption law didn’t allow the single father to adopt his daughter. Finally the child’s grand mother adopted her.

India is attracting lot of foreign couples because of low cost of treatment and easy availability of the women for surrogacy. Surrogacy has been a debatable issue in India and sooner or later we need to have the laws in place to protect the Indian surrogate women and also the foreigners who come here for treatment.

I spoke to Mr.Apurva Agarwal, Partner -Universal legal law firm, Mumbai about the legal aspect of surrogacy. Here is an excerpt of the interview:

Q: In US and other countries the law forbids the surrogate mother to accept compensation, but in India there are no such laws, recent example is of the Japanese couple who paid Rs.4,00,000 to the surrogate woman in Anand;  please  comment?

A: It is a common practice in India. This is the reason why we call Surrogacy as "Rent a Womb". It is being considered as a service.

Q: Would lesbians and homosexuals Indians and foreigners be allowed to have children through surrogacy in India?

A: As of now in India homosexuality and lesbianism is a criminal offence. Hence if people admit to homosexuality and lesbianism they maybe tried and punished. Hence the question of lesbians and homosexuals (whether Indians and / or Foreigners) having a child through surrogacy does not arise.

Q: According to the Indian law sex determination of the fetus is an offense; so would the same law be applicable to the couples pre- determining the gender of the fetus since they opt for surrogacy?

A: The law is called Pre Natal Diagnostic Act. Under this law Sex Determination is banned due to female feticide. This law would apply to surrogacy. People cannot pre-determine the gender.

Q: With the rise in medical tourism, surrogacy is estimated to be $445 million market; and it is growing; do you foresee more legal cases like custody of Manji in the future?

A: Yes, unless there is a proper legal system and law in place for surrogacy.

Q: Do U think that our legal system is outdated and not in tandem with the changing socio-economic scenario?

A: Yes, it is outdated. Our parliament has not been able to keep pace with the times.

Q: Are we legally well equipped to deal with Trans country cases on surrogacy?

A: No, we are not legally equipped to deal with Trans country cases on surrogacy. In fact; we are not legally equipped to deal with surrogacy even within the country as of date.

Q: What is your legal opinion on surrogacy?

A: Surrogacy as a concept should be allowed in India with proper checks and balances. There has to be law to regulate all the legal issues including the issue of biological mother v/s surrogate mother, issue of adoption, personal laws etc.

Q:1st clinical trials of the drugs in India and now the Indian women are renting their wombs to richer countries; is it legal?

A: Since, there is no law banning surrogacy, surrogacy is legal, hence renting of wombs is legal.

Q: Does renting the womb come under the constitutional right of a woman?

A: Article 21 of the Constitution provides for Right to Life which includes the right of women's dignity. It is a grey area whether renting a womb is against the dignity of women. My opinion is that it is unconstitutional. The reason being is that if you say prostitution is a criminal office, where women / men have voluntary sexual intercourse for consideration, then could I use a women's body part for consideration.

On the other hand, even in Mahabharata, Devki was the biological mother of Balram while the surrogate mother was Rohini. Even the five Pandavas were surrogate children of Pandu as he could not have sexual intercourse with his wives Kunti and Madhuri. Hence even our culture has allowed Surrogacy.

It surely depends on how badly you want to have a biological child. If you have infertility problems; then check the various options and go for the best suited for you; specially now that you know that in India we don’t have any laws protecting either the couple or the surrogate woman; if it can happen to the Japanese couple in India; in near future one would surely see more cases like Manji’s happening to couples of any nationality.



About the Writer

Seema Upadhyay is a writer for BrooWaha. For more information, visit the writer's website.
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3 comments on Surrogacy

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By Seema Upadhyay on October 28, 2009 at 01:18 pm

Thanks Morgana.

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We need to think about programy dla firm

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