Millennium Post

The big surrogacy game

The big surrogacy game
‘Fair, fine features, no disease, graduate, high caste, in early twenties, available without delay. Legal matters will be taken care of’. This is not a matrimonial advertisement, but one of the many put out by those who power the booming multi million dollar fertility industry in India largely catering to a foreign clientele. This is the sort of advertisement pasted on Indian surrogacy sites by in vitro fertilisation (IVF) centre sites, donor agencies, touts and agents thanks to whom thrives the Assisted Reproductive Technology (ART)  business in India. While such ads hold out a promise to the infertile childless, tragically they are harbingers of death for the likes of teenager Sushma Pandey of Mumbai and young Premila Vaghela of Ahmedabad.

Both women were essential players in the ‘order a baby’ big surrogacy game being played in India with no legal tools to protect women who rent out their womb or sell their eggs to would be parents. Sushma Pandey, 17, was apparently an egg or oocyte donor. She had visited a fertility clinic two days before she died suddenly. This was her third visit in 18 months. These facts came to light when two years after her death the Bombay high court pulled up the police for not probing the role of the hospital in her death.

Premila Vaghela, 30, was made pregnant by using artificial insemination. She was carrying the fetus for a woman who could not do so and the child would be handed over to the commissioning couple. Vaghela was in her eight month of pregnancy when she died. Going by the Black Law Dictionary, Sushma falls into the ‘gestational surrogacy’ class and Vaghela in the ‘traditional surrogacy’ class. Pandey was being used for egg harvesting. The egg taken from her would be fertilised and implanted in another women’s womb [the surrogate mother] who would then carry the child for a recipient couple. Vaghela was in another category because she was providing her own egg which was fertilised by artificial insemination and was herself carrying the child.

Both the women and those who paid for the egg as well as the womb were not indulging in any illegal activity. Nor were the hospitals or clinics using the ART since there is no law in the land that prohibits surrogacy. But the death of Pandey and Vaghela raise a crucial question that goes beyond the hotly debated issue of whether India should allow surrogacy or not. The death of the two women turns the spotlight on the lack of regulation when it comes to IVF centres and their modes operandi. This has put the donor at high risk, as the death of Pandey and Vaghela have shown. Regulation, if at all, is by a set of guidelines given by the Indian Council of Medical Research (ICMR) in 2005. In the absence of any law to govern surrogacy these guidelines apply but as the Law commission has pointed out they being non-statutory they are not enforceable or justiciable in a court of law.

According to Shashank Shekhar, former member of the Delhi Commission for Protection of Child Rights, 'these guidelines are flouted in a most callous manner because most women donors and surrogate mothers do not know the full implications of what they are going in for'. The Commission had taken sou moto cognisance of the rights of baby twin girls born to a woman in Delhi using ART, who had been commissioned by a gay couple from Spain. Investigation by the commission revealed that the husband of the woman who was a drug addict was lured by touts and agents to provide his wife as a surrogate mother. 'The woman told us that it was much later that her husband told her about the procedures done at the clinic and that she would have to give up the child she was carrying'. As things turned out she lost her husband during pregnancy and was reconciled to giving up the children. 'This business is run by a mafia with little consideration or legal protection for women who are surrogates or egg donors'.

A great demand for donors and surrogates has put pressure on supply. The result is the creation of a network of touts, agents, donor supplying agencies, IVF clinics, informants and legal experts spurred by the money to be made,  work with little care for ethical, social or legal issues and above all the health risks to a donor or surrogate. Egg donors like Pandey are not counselled about the risk of egg harvesting nor were the ICMR guidelines followed in her case. Not only was she underage for the procedure but underwent it more often than the stipulated limit of six extractions in a lifetime. Donors in high demand [the young, fair, healthy and educated for the genes they will give the child] are often given dangerous doses of hormonal drugs to stimulate the ovaries and produce more eggs in a cycle for harvesting.

Touts and agents use social workers and health workers to identify poor and needy women and their families who can be lured by money to become surrogates and donors. These touts and agents work for agencies who in turn supply donors to IVF clinics. The commissioning couples or recipients usually make a one time payment to the clinic which takes care of the procedures and pays the agencies. The agencies pay the donors. Legal work like drawing up MoUs between the recipients and surrogates, affidavits etc are also taken care by experts in the network.           

There are two reasons that foreign infertile couples, gay couples as well as single parents flock to India to order a baby. One, they have to pay only about $25,000 to $30,000 which is one third of what they would cough up in their home country. The second factor that drives them to India is that commercial surrogacy is banned in France, Spain, Italy, Japan, Germany, Switzerland, UK, Canada, South Africa, Australia and several states in America.  

With these facts staring the government in its face, it is imperative that the Assisted Reproductive Technology (Regulation) Bill of 2010 be brought by it to Parliament. The draft of the Bill has been with it since 2008. A law should have come yesterday and probably saved Pandey and Vaghela and many other economically deprived women to make a risky 'choice' to feed hungry mouths at home. IPA
Rashmi Saksena

Rashmi Saksena

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