Since the day they were delivered more than two years ago, twin toddlers Nikolas and Leonard Balaz have been stateless and stranded in India. Their parents are German nationals, but the woman to whom the babies were born is a 20-something Indian surrogate from Gujarat. The boys were refused German passports because the country does not recognize surrogacy as a legitimate means of parenthood. And India doesn't typically confer citizenship on surrogate-born children conceived by foreigners. Last week, Germany relented, issuing the Balazes travel visas, and the entire family is finally going home though only after a long legal battle that took them deep into the convoluted world of intercountry adoption.
"We can only wish them good luck," India's Supreme Court told local media. But it also reiterated the urgent need for legislation to regulate one of India's fastest-growing industries. Hundreds of foreign tourists spill into the country every year to hire women to incubate their children. India has become the world capital of outsourced pregnancies, whereby surrogates are implanted with foreign embryos and paid to carry the resultant babies to term. In 2002 the country legalized commercial surrogacy in an effort to promote medical tourism, a sector the Confederation of Indian Industry predicts will generate $2.3 billion annually by 2012. Indian surrogate mothers are readily available and cheap. Unlike in most countries where surrogacy is lawful and bucking the norm in heavily bureaucratic India the procedure can take place without reams of government red tape.
That may soon change. A draft bill to direct assisted reproductive technology (ART) is likely to be introduced this year in Parliament. The new legislation will beef up surrogacy guidelines authored by the Indian Council of Medical Research (ICMR) that have often gone unheeded by the few hundred Indian fertility clinics accustomed to writing their own rules. Among them is the Akanksha Infertility Clinic in the town of Anand, in the western state of Gujarat, where the Balazes found themselves. "We are lost when there are no laws," says Akanksha medical director Dr. Nayna Patel, who has become the face of the industry abroad since being spotlighted on the Oprah Winfrey Show in 2007. "But the people drafting the bill have to remember to take care of the clinics too."
Patel chooses among the women who appear at the clinic, at least three a day, hoping to hire out their wombs. She pairs the surrogates with infertile couples, catering to an increasingly international clientele from 13 foreign couples in 2006 to 85 in 2009. And she oversees the negotiations between them. The entire process costs customers around $23,000 less than one-fifth of the going rate in the U.S. of which the surrogate mother usually receives about $7,500 in installments. Patel implants the women with embryos, using specimens from sperm or egg donors if necessary. Once pregnant, the surrogates are housed onsite, in a dormitory that was once a local tax office, so that they can be supervised until delivery. But under the new legislation, Patel will be permitted to supervise nothing but surgery.
The proposed bill bans in vitro fertilization (IVF) clinics from brokering surrogacy transactions. It also calls for the establishment of an "ART bank" that will be responsible for locating surrogate mothers as well as reproductive donors. Fertility clinics will only come into contact with surrogates on the operating table. "We need to create a safe distance between the clinic and the surrogate to avoid unethical practices," says Dr. R.S. Sharma, deputy director general of the ICMR and member-secretary of the bill's drafting committee. "IVF clinics should only be concerning themselves with science."
It's a suggestion that has caused a stir in the medical community. Patel insists that she will not accept a surrogate sent to Akanksha unless she herself is permitted to perform medical and background checks. She maintains that ART banks will not have enough experience to determine whether a woman is fit for surrogacy, let alone replicate the personal bonds she cultivates with her surrogates. "The trust they have with me is what makes the whole thing secure and safe," she says. "And at the end, when they want to buy a house or a piece of land for farming, we get them the best deal. With this bill, we will not know what they are going to do with such a big amount of money."
Indeed, surrogate mothers are likely to enjoy unprecedented autonomy. They'll have more freedom in negotiating their fee and receive mandatory health insurance from the couples or individuals employing them. Firm legal standards will ensure that medical professionals only be permitted to implant three embryos in a woman's uterus per attempt. (The American Society for Reproductive Medicine advises doctors to implant just one; until recently, Patel routinely used five at a time, aborting anything more than two fetuses.) The legislation will allow a woman to act as a surrogate up to five times, fewer if she has her own children, and will impose an age limit of 35. That way, those motivated by desperation won't be able to put themselves at risk.
In a push to avoid cases similar to the Balaz family debacle, the bill will also make things more challenging for foreign customers. The new legislation will require that the international couple's home country guarantee the unborn infant citizenship before a surrogacy can even get off the ground. Such a stipulation will certainly not go over with Germany. "In fact, I'm not sure if any country will be ready to pledge citizenship before birth," says Amit Karkhanis, a prominent Mumbai surrogacy lawyer. Countries accepting of surrogate-born children typically rely on DNA tests done post-delivery to determine the parentage of the baby.
Same-sex couples a growing number of whom are relying on Indian surrogates may not even make it as far as a plea for a government pledge. Just last year, Delhi's High Court overturned a section of the penal code outlawing "carnal intercourse against the order of nature," and the status of gays and lesbians in the country remains unclear. "Tomorrow, if the government outlaws gay relations," says Sharma, "then we will not allow gay couples to hire surrogates. The law of the land will be followed so far as this issue is concerned."
When Australian partners Trevor Elwell and Peter West visited the country nearly two years ago, only one clinic was open to providing them surrogacy services. Now, with their surrogate-born twin girls a year old and their third baby incubating in Mumbai, Elwell estimates that a half-dozen Indian IVF clinics cater to homosexual couples. The men have found it uncomplicated to use Indian egg donors. They've made the switch to a facility where their new surrogate knows they are gay and is comfortable with it. And they attained Australian citizenship for their children in a process that took no more than a few weeks. For them, as for most who flock to India hoping for a baby, informal surrogacy guidelines have been a blessing. "If the bill does complicate things, people will go to another country," Elwell says. "There will always be somewhere this can be done. This is just the beginning."