The Government has put at risk the future of a large number of unborn babies in assisted reproduction clinics

After scanning the list of patients ‘in-the-waiting’ on her laptop, Dr Shivani Sachdev Gour takes a deep breath. “I have so many embryos frozen in my lab and I can’t move an inch ahead thanks to these new laws,” she says as she looks up for a moment, only to get back to the list. “I can’t just destroy them (the embryos), there are parents waiting for treatment to move ahead, and they consider these embryos their future babies.” She is distracted by an assistant who walks in nervously to remind her of an appointment with an Indian couple.

A practising gynaecologist who runs a fertility clinic in an upscale residential colony in South Delhi, Dr Gour is one of several doctors in India who run such facilities, often known as Assisted Reproduction Technology (ART) clinics, and are caught in a tight spot following a set of guidelines issued in December 2012 by India’s Ministry of Home Affairs. These guidelines are for surrogacies commissioned by foreigners.

Surrogacy, recognised in India as an ART treatment, is an arrangement by which a woman (called a ‘surrogate’) carries and delivers the offspring of a couple. The surrogate could be the child’s genetic mother or a woman unrelated to the child, in which case it is called ‘gestational surrogacy’.

Depending on the case, fertility experts use either the sperm and egg of the commissioning parents or a donated sperm and/or egg for what is called In Vitro Fertilisation (IVF: carried out in a petri dish in a lab) to form an embryo, which is later transferred to the womb of the surrogate mother who bears the baby for the parents.

Surrogacy can cost parents anything between $20,000 and $28,000, counting the fee of the medical procedure, delivery charges of the baby, medication costs of the surrogate and her compensation as well.

According to India’s new rules, gay couples and single parents living abroad will not be given an Indian visa if they are visiting to commission a surrogacy. Also, commissioning parents, as they are called, have to be heterosexual couples married for at least two years before commissioning a surrogacy, and will have to apply for a medical visa and not a tourist visa as they usually did until now. Apart from this, commissioning parents will now have to get documents from clinics certifying that they are a heterosexual couple who cannot have children under normal conditions and need medical treatment.

Most of Dr Gour’s patients have been from Australia and the United States, many of them single and gay. The client would submit a sperm sample at her clinic that would be fertilised with a donor egg in an IVF lab to form an embryo for transfer to the surrogate. According to Dr Gour, most gay patients are male and single. Lesbians usually use a donor sperm sample in a clinical procedure called Artificial Insemination—by which semen is introduced into the woman’s body—to achieve pregnancy. ART guidelines in India allow artificial insemination for single women.

However, the new guidelines issued by the Ministry of Home Affairs have hit single gay clients who intended to or were in the process of commissioning surrogacies in India. Many such would-be parents had submitted their samples to clinics before the visa rules were revised in December. Most of these samples were fertilised with donor eggs and the embryos were ready for transfer to surrogates. Also, many parents were in the process of finalising their surrogates.

The new rule barring gay parents from surrogacy has left the fate of these embryos uncertain. Dr Gour has over a hundred embryos stored and frozen in canisters of liquid nitrogen, marked and labelled, lying in her lab. Currently, Indian law has no provision for the import or export of embryos, making it illegal for clinics to send these embryos overseas to parents who cannot commission surrogacies here any longer.

“Many patients had visited me much before these rules were notified,” says Dr Gour, “What do I do with them?” But frozen embryos are not her only worry. There are several pregnancies underway for parents who have since been barred from opting for the procedure.

In April this year, Dr Gour had a problem at hand: a two-week-old girl born of a surrogate mother was still in her clinic waiting for her single mother, who was stuck in Australia, negotiating her way through red tape—in both countries—for a medical visa to India. “The surrogate mother has no ownership rights over the child and the parent was caught up with paperwork back home. Usually parents arrive before the due date. It was much easier for them to come on a tourist visa,” she says.

The Australian mother eventually did claim her daughter. Just in time, too. According to a set of provisional guidelines drafted by the Indian Council of Medical Research (ICMR) for ART treatments in 2005, if a commissioning parent fails to take custody of a child within a month of its birth, the child has to be given away for adoption to an Indian agency.

While getting visas have become an ordeal, gay parents claim to face trouble leaving the country with their children. Jake Docker, an Australian national and a single gay parent, had twin daughters in January through a surrogate in Delhi. While making enquiries and commissioning the surrogacy had been smooth, done through an ART clinic, he says his exit from the country with his daughters was a nightmare. According to Docker, a 27-year-old employee of the Australian government in Sydney, he was grilled by authorities at Delhi’s Foreign Regional Registration Office (FRRO) for more than two hours over why he wanted to have children as an unmarried gay man. “At one point, I was also accused of taking the children to my country for illegal organ harvesting,” says Docker, calling the authorities in India ‘homophobic’.

Docker was hoping to have more children later and had his embryos stored in a clinic for future use. After an IVF procedure, parents can store their embryos in a fertility or ART clinic for an annual fee of $800 or $1,000 and use them whenever they decide to have a child through surrogacy.

With new visa rules in place and surrogacy banned for gay parents, Docker says he saw no reason to keep his embryos in India. He had them terminated. “The new rules came as a blow from nowhere,” he says, “I had had it all planned and invested my money. But I am happy as long as I could take my daughters with me.”

India’s surrogacy industry remains largely unmapped. In 2008, the ICMR had estimated it as a $6 billion industry. There is no law that governs or regulates this industry except a set of guidelines drafted by the ICMR in 2005 for ART treatment. More recently, the ICMR began drafting inputs for what was to be India’s Assisted Reproduction Technology (ART) Bill, 2010. Among its objectives was to assure all involved anonymity, and also limit each surrogate volunteer to only two surrogacies (for the sake of her own health). But this proposed piece of legislation is still in formulation stage, leaving the industry to the mercy of ad hoc rules issued by the Government.

Ad hoc rules have caught medical practitioners on the wrong foot, says Jagatjeet Singh, managing director of Wyzax Medical Tourism, a private agency that acts as an interface between hospitals and foreign patients seeking medical treatment in India. With around 80 of the agency’s cases caught in the tangle of rules issued last December, Singh has been chasing government authorities to arrange visas for foreign parents expecting surrogate deliveries.

Not everyone sees those rules as homophobic. The ICMR’s Sharma, for example, says that they were introduced in response to an influx of surrogacy seekers from countries that refuse to grant such children legitimacy. Germany, Switzerland, Italy, France and Sweden, among others, prohibit all forms of surrogacy.

It has led to many a complication. A dispute over the citizenship of twins born of a German parent through surrogacy in Gujarat is still pending in the Supreme Court. The surrogacy was commissioned at a fertility clinic in Anand, and the matter came to light in 2008 only after Germany refused to grant citizenship to the children since it does not recognise the validity of parenthood by surrogacy.

Until recently, most commissioning parents would arrive on a tourist visa and visit a clinic in India that would help them select a surrogate. Once the IVF was done, the embryo would be frozen, the surrogate put on a regimen of medicines and hormonal injections, and the transmission done. While some parents would visit their surrogate during the pregnancy term, most would arrive (again, on a tourist visa) around the due delivery date and apply to their home country for citizenship of the child through the FRRO. Once the papers were cleared, these parents would take their child home. “Surrogacy has been part of Indian society, but was either altruistic in nature or done among relatives. The surrogate mother also happened to be the biological mother,” says Sharma, who is on the panel helping draft the proposed ART bill, “But there has been a sharp rise in commercial surrogacy where couples would literally just hire a womb. This has resulted in the commercialisation of surrogacy, which is why it is important to rein in the industry. Clinics will be more answerable and parents will have to be more meticulous with their paperwork for commissioning a surrogacy in India.”

Garhi Jharia Maria is a village tucked away in South Delhi. Home to many local artisans and once even the Lalit Kala Academy, this heritage village—like most of Delhi’s urban villages—resembles a slum teeming with migrants from Uttar Pradesh, Bihar and Rajasthan. A large number of its residents work as domestic helps in adjoining residential colonies or as casual labourers in small industrial units within Garhi and around. As a result of its proximity to several fertility clinics in the area, the village has earned a reputation lately of having a network of agents, surrogates and sperm-and-egg donors.

While many surrogates in the area live with their families or in rented apartments arranged by commissioning parents, some live in hostels run by fertility clinics. They usually earn between Rs 2.5 lakh and Rs 4 lakh for their services.

Twenty-nine-year-old Mamta, wife of a tailor in Garhi, has borne two surrogacies (one with twins) apart from two of her own children. While she refuses to divulge how much she earned, she claims it was enough to repair her husband’s house in their village near Bareilli. While she waits to be called upon for another pregnancy next year—after the mandatory gap of two years between two surrogacies—she works as a ‘social worker’ at a sort of hostel for surrogates owned by one of the area’s fertility clinics. Her job is mainly to monitor the health and well-being of its inmates. She also tries to ‘encourage’ more girls to volunteer. “I came through a friend who took me to the clinic during one of her check-ups,” she says, “It’s a good thing to do—you earn well for your own children.”

Shabana, 27, a new recruit, agrees with Mamta. Seven-months pregnant with her first surrogacy and monitored by Mamta, she lives with her husband (also a tailor) and two daughters in a rented one-room flat near Garhi. While her husband earns just about Rs 6,500 every month, she rakes in a monthly Rs 12,500 as part of a package offered to her by the commissioning parents. The flat comes with the deal, but only till the child is born. Shabana’s decision was prompted by a conversation with a friend who had taken up surrogacy. Another push was the film Vicky Donor, which led her to conclude that there’s nothing wrong with it. “At least it’s a clean place for my children. I may go back to my village near Patna once I am through with this. We just needed some money,” she says.

While many observers consider surrogacy a win-win arrangement for parents and surrogates alike, activists claim that many women face severe health hazards with clinics trying to attract as many patients as possible. According to a study conducted by SAMA, a Delhi-based research organisation that focuses on gender and health, most surrogates undergo Caesarian sections as doctors tend to go by the time schedules of commissioning parents. Also, some allege that private clinics and hospitals care less for poor surrogates than for rich bill-paying parents.

“Most surrogates are only interested in the money and so don’t even have lawyers to represent them when an agreement is drafted,” says Anurag Chawla, a senior partner at a law firm in Delhi that helps draft agreements for commissioning parents. “In some cases, doctors transfer more than three embryos to the surrogate’s womb to increase chances of pregnancy. While this often results in the surrogate carrying multiple children and takes a toll on their health, it is also illegal.”

While the government is yet to take a decision on the fate of frozen embryos, 33-year-old Adrian Tilby waits eagerly in Perth, Australia, for news. He recently fathered twins through a surrogate in Delhi, and had some embryos stored in the hope of more. Since commercial surrogacy is not allowed in Australia and adoptions can take as long as a decade or more, India was his only option. “I had mortgaged my property in the hope of [enlarging] my family,” he says, “It is ridiculous to even think of destroying my embryos. They are mine.”