In light of the Baby Gammy controversy, Roshni Nair explores the ethical issues plaguing India’s multimillion dollar surrogacy business

Many landmark surrogacy cases surfaced after ‘Baby M’ in 1988, but few have commanded as much attention as the recent Baby Gammy case. Pattaramon Chanbua, the 21-year-old Thai surrogate who gave birth to twins Gammy and Pipah, claimed that commissioning parents David and Wendy Farnell had abandoned Gammy – the one with Down’s syndrome – and taken the ‘healthy and normal’ twin, Pipah, with them to Australia. The Farnells, meanwhile, insist they hadn’t even been informed about Baby Gammy’s condition till the seventh month. The incident, which has sparked outrage and debates about international surrogacy, has prompted stakeholders in India’s surrogacy industry to take heed.

Abdicating responsibility is a crime

Dilip Patil, founder of Trivector Origio Scientific Pvt. Ltd., a company that offers in-vitro fertilisation (IVF) services, says it is illegal in India for intended parents to leave their children behind. Unlike in Thailand, where surrogates have some parental rights, Indian surrogates relinquish theirs once they sign the contract. “So intended parents have to take the child regardless of whether it has a deformity or disability,” he says.

Rita Bakshi, who heads Delhi’s International Fertility Centre, echoes Patil’s view. “Abandoning a baby is not justified at all. It’s most unfair to expect a surrogate to fend for the baby.”

What, then, happens to babies born with serious conditions or disabilities, as in the case of Baby Gammy? Dr Nayna Patel, the medical director of Akanksha Infertility Clinic in Anand, Gujarat who shot to fame with her 2007 appearance on The Oprah Winfrey Show, says certain tests can easily detect abnormalities in the first trimester. This is important, she stresses, because termination can be done if something is picked up.

“The Assisted Reproductive Technology (ART) guidelines laid down by the Indian Council for Medical Research (ICMR) clearly mention that a child can be terminated if major malformations are found. Women who don’t believe in abortion are advised not to enter surrogacy at all. In any case, the anti-abortion belief is not prevalent in India,” she reasons.

Dr Manasi Mishra, who heads the Research Division at Centre for Social Research (CSR), however thinks there are many cases like Baby Gammy in the country. A few years ago, Mishra supervised a report called Surrogate Motherhood: Ethical or Commercial which brought out the grey areas in India’s commercial surrogacy business. Detecting foetal abnormalities is easy in established centres, she says, but what about surrogacy centres in smaller towns and cities? “Surrogacy is being done even in small thatchments. These places have no facility to check for deformities. What happens then?” she questions.

Background checks

The biggest shocker in the Baby Gammy case was the revelation that 57-year-old David Farnell has a history of paedophilia. The time he spent in prison for abusing three girls aged five to 10 was a record that had gone undetected by Thai authorities.

Indian experts have expressed shock at this glaring lapse. “We don’t go ahead with surrogacy unless we know for sure the intended parents are clean,” says Bakshi. Contact is established with authorities from countries such would-be parents hail from, she adds. Detectives are also hired in some cases. “In fact, doing background checks on foreigners is easier than doing it on Indians since authorities abroad respond faster to queries.”

Intended parents are also discretely profiled by psychological counsellors at Indian surrogacy centres, claims Dilip Patil.

A 2012 UN study estimated that there are 3,000 fertility clinics in India. Viewed in the context of the absence of a legal framework for surrogacy in India highlights how easy it can be to bypass mandatory background checks, particularly in fly-by-night surrogacy centres. Mishra cites an example to underline this problem. “Background checks aren’t always done. If money is flowing, they (fertility clinics or surrogacy centres) don’t do it. In Narve, near Goa, a child sex offender was allowed to have two surrogate children.”

Rights of the surrogate

As per ART guidelines, it is mandatory for foreigners and non-resident Indians (NRIs) to appoint an Indian local guardian to take care of the surrogate during and after her pregnancy. And if the intended parents fail to take the baby after it is delivered, it is the local guardian’s duty to claim the child within a month of its birth.

How uniformly is this local guardianship guideline enforced? Very rarely, says Mishra. Patil also admits that guidelines can’t be enforced since they are just that– guidelines. “Recommendations are voluntary, so clinics aren’t legally bound by them. But reputed clinics and centres ensure that local guardians are appointed,” he says.

In India, where surrogates have no parental rights, decisions pertaining to termination are usually in favour of intended parents. So if they want a termination and the surrogate doesn’t, the latter has no choice but to relent. Similarly, a surrogate can’t abort the child she’s carrying unless there’s a ‘valid medical reason’ to do so. “A surrogate mother in Ahmedabad died on the operating table last year due to gestational diabetes and hypo tendency. The symptoms were obvious during pregnancy, but nothing was done. In the absence of surrogacy laws, the baby is precious and the surrogate mother is not,” says Dr Manasi Mishra.

Intended parents are also forbidden from seeking the services of multiple surrogates at a time. Even then, the CSR report highlights instances of couples hiring more than one surrogate and ‘cherry-picking’ the healthiest child. “There are cases where two-three surrogates were tried for one commissioning parent, who then chose to keep the healthiest foetus and abort the rest. The surrogates were handed abortion pills and didn’t even know about it. They were simply told that they’d miscarried,” shares Mishra. What makes such cases worse is that surrogates often have to forfeit a significant portion of their fee if they miscarry. Some are not even paid if they fail to conceive.

Different rules

Singles who are not Indian citizens cannot appoint a surrogate in India. Those who’ve been married for less than two years are also barred from doing so. Single Indians and Indian couples who’ve been married for less than two years, however, have no such restriction. Dr Rita Bakshi admits she doesn’t know why the law is different for Indians and foreigners, but Patel says such clauses have been imposed by the Ministry of Home Affairs (MHA), not the ICMR. The two-year marriage clause, she says, is problematic for people who marry late. “Their biological clocks are ticking. In such cases, the eggs of the female may not be viable even for surrogacy. The marriage clause is also restrictive for people in live-in relationships,” she explains.

The Baby Manji case of 2008 highlighted the pitfalls of such clauses. Manji, who was incidentally born in Patel’s Akanksha Infertility Clinic, was briefly in no man’s land after her intended parents, a Japanese couple, divorced just before her birth. The father, who wanted to take the child back with him, faced legal hurdles because single men from abroad are prohibited by Indian law to adopt children. Manji was eventually given a visa by the Japanese government on humanitarian grounds, but not before her paternal grandmother came to India with her son to claim joint custody of the child.

Surrogacy guidelines aren’t LGBT- friendly either

Members of the LGBT community, whether from India or abroad, are not allowed to hire surrogates. Dr Manasi Mishra reveals that homosexuals were allowed to opt for surrogacy in January 2013, but the clause was revoked just three months later. That homosexuality is still a criminal act and LGBTs are not permitted to adopt children in India doesn’t help matters. Activist Harish Iyer makes no bones about this being a form of discrimination. “The emotion of maternity is beyond gender. It’s extremely cruel to assume that gay or LGBT people can’t be good parents. LGBTs can’t adopt in India, and now they can’t consider surrogacy either. I’m all for safeguarding the rights and interests of surrogates, but you only increase chances of a backdoor when you place more prohibitions,” he states.

Looking ahead

Union Health Minister Dr Harsh Vardhan is keen to transform ART guidelines into concrete laws, says Dilip Patil. “No official commitment has been given, but discussions may take place in the winter session,” he says. CSR is now hosting a conference on commercial surrogacy on September 22-23 and Dr Harsh Vardhan is expected to attend, as are fertility specialists like Dr Patel and Dr Bakshi.

Guidelines are interpreted in myriad ways in the absence of a legal framework – something the Thai military government realised in the wake of the Baby Gammy incident. Thailand has now approved a draft to ban commercial surrogacy in the country.