The human cost of unregulated commercial surrogacy

In one of last week’s blogs, I looked at the burgeoning commercial surrogacy industry in Nepal.  Interest groups there were concerned that the lack of regulation left vulnerable and disenfranchised women at risk of exploitation.  Reference was made to the Indian experience, and how the absence of a legal framework left Indian surrogate mothers ill-protected.

The extent of the vulnerability of surrogate mothers in India is highlighted in a recent report from the Centre for Social Research (CSR).  The Centre is a non-profit, non-governmental organisation based in New Delhi working to empower Indian women and help protect their fundamental rights and freedoms.

India has long been a popular destination for prospective parents from Australia, the UK and elsewhere seeking to have a child through surrogacy.  CSR estimate that the resulting surrogacy industry, which is flourishing in the absence of legal protections, is worth about US$2 billion.

Looking to see whether the industry was as deeply exploitative as feared, the CSR undertook a survey of 100 surrogate mothers and 50 commissioning parents in Mumbai and New Delhi. 

CSR’s report, “Surrogacy Motherhood:  ethical or commercial?” summarises the trends emerging from that survey.  Even taking into account the relatively small sample size, those trends are alarming, and include the following: 

Ø                  surrogacy agreements between the surrogate mother and the commissioning parents were normally signed in the second trimester, after the pregnancy had been confirmed. 

Ø                  most surrogate mothers were not given a copy of their agreement and were not aware of its terms.  "The freedom of the surrogate mother is an illusion," says the report.

Ø                  surrogacy agreements rarely addressed issues relating to the health and wellbeing of the surrogate mother.  Where they did, it was usually only incidental to the health of the child she was carrying. 

Ø                  if a congenital defect was detected in utero, or the child was not of the preferred gender, it was often chemically aborted, and often without the surrogate mother's consent or knowledge.  According to the report, "There have been instances where the contracting individual has specified the sex of the baby, refused to take the baby if it was not born normal and filed a suit against the surrogate saying she had broken the contract."

Ø                  surrogate mothers were paid about 1% or 2% of the fees charged by the clinic.  Where the pregnancy was terminated, or the commissioning parents refused to take the child, the surrogate was often only paid half of the agreed fee.  Some surrogates were paid nothing.

Ø                  the actual payment received by the surrogate mother ranged from between 2.1 and 4 lakh of Rupees (between about £2,300 and £4,350), depending on where the arrangement was undertaken. 

 

Compare this with India’s average per capita income – in February 2013, this was estimated to be 68,750 Rupees (£750).  So, whilst only a fraction of what clinics are earning, a surrogate mother can earn the national average annual income many times over from a single pregnancy. 

Ø                  the fate of children born with congenital defects was unclear.  Only 6% of commissioning parents in New Delhi and 26% in Mumbai said that they would take the baby regardless.

Ø                  there was an increasing trend to use more than one surrogate mother. Commissioning parents looked upon it as a more economical option, since some clinics offered “2-mothers-for-1-guaranteed-pregnancy” discounts.

Ø                  most surrogate mothers stayed in hostels or shelters during the pregnancy to avoid the stigma of being a surrogate and to avoid being infected with STIs during pregnancy.

Ø                  many commissioning parents are ethnically Indian themselves, living in Western countries where surrogacy was illegal.

 

The report includes some appalling anecdotes about the extent of the oppression rife in the surrogacy industry.  In one instance: 

"a shocking case of surrogacy was unearthed in the Bombay International Airport, where a foreigner couple went for surrogacy in India only for organ transplant for their sick child in their country."

Unsurprisingly, the resounding recommendation is for a clear legal framework.  There was insufficient protection for the surrogate mother’s health, or to protect her from exploitation. 

“Surrogacy arrangements have made child a ‘saleable commodity’, and complications have arisen regarding the rights of the surrogate mother, the child and the commissioning parents.  As there is no legal provision to safeguard the interests of the surrogate mother, the child, or the commissioning parents in India, looking at such an issue from commercial or business point of view has complicated the matter further.”

Further research was required, the report concluded, to assist in initiating legal provisions to properly regulate surrogacy practices and protect the interests of the surrogate mother and, crucially, the child.

At which point (and at the risk of sounding like a broken record) I return to one of my favourite topics from recent weeks …

 

I looked in a blog a few weeks ago at European research on whether a standardised surrogacy framework within the EU was achievable.  A similar piece of research is underway via the Hague Conference, with a correspondingly broader scope. 

Those with experience of transnational surrogacy in any capacity – commissioning parents, surrogate mothers, legal advisers, etc – are invited to share them by contacting the Hague Conference’s Permanent Bureau.  Legal professionals with relevant practical experience are invited to complete a Questionnaire online.  Responses close at the end of September 2013.

The Indian research demonstrates that, only by identifying the nature and extent of the issues that arise due to current surrogacy practices, can a properly formulated legal, medical and ethical framework emerge.