Reproductive Tourism Soars in India: Adoption and Surrogacy Laws Have Yet to Catch Up

by Priti Sehgal
– India –

Across India, the tale of baby Manhji has made headlines and gripped the nation’s attention. Born to a Japanese father and surrogate Indian mother, the two month old is caught in legal limbo. In a way, she has three mothers but none who will raise her, and she cannot return to Japan with her father due to complications of Indian law.

The saga began when Japanese citizens Dr. Ikufumi and Yuki Yamada were unable to conceive a child of their own. They obtained an egg from an anonymous donor and then travelled to India to locate a surrogate mother. In November 2007, the fertilized embryo was implanted into Pritiben of Ahmedabad, and the Yamadas began the nine month wait for their child.

The couple’s dream of completing their happy family was dashed when Ikufumi and Yuki divorced just one month before Manjhi’s birth. Apparently wanting a complete separation from her old life, Yuki took the additional step of disowning the newborn.

Ikufumi experienced the jolt from the dissolution of his marriage, but looked forward to rebuilding his life in Japan with Manjhi. Unfortunately, he soon learned that the Indian legal system was unprepared to deal with his complicated situation.

Quite simply, Indian laws have not kept pace with the recent trend of reproductive tourism. The law traditionally favors the mother over the father in a custody battle; in Manjhi’s case, the courts have been unable to make a clear statement on who is to be deemed the baby’s mother. The biological mother who donated her eggs remains anonymous, the intended mother has severed ties, and the surrogate mother’s responsibility ended at childbirth.

The second obstacle is that Indian law requires Ikufumi to adopt his own child because of the circumstances under which she was born, yet because he is a single father, the law has also rendered him ineligible. Without re-marrying, he cannot claim the child that he intended to raise with his former wife.

To complicate matters even further, a Rajasthan-based NGO has stepped into the picture, claiming that Manjhi’s status is that of an “abandoned child.” Due to the child’s uncertain legal status, and because the father is unable to become her lawful guardian, Ikufumi’s efforts to take the baby to Tokyo fit the Indian profile of child trafficking.

The Supreme Court has awarded temporary custody of the infant to her 70-year old grandmother, Emiko. However, several issues still need to be sorted out, most importantly procuring travel documents for the baby. As the helpless father shuttles between Japan and India on a tourist visa to battle through the legal intricacies, the grandmother must struggle to survive daily life using only sign language to communicate. She only speaks Japanese.

The case has kicked off a public debate on surrogacy and related issues. First to appear under the spotlight was the fact that surrogacy is already an almost US$445 million business in India. (The Indian Council for Medical Research expects profits to reach $6 billion in the coming years.) The country has become a leading service provider seemingly overnight; the past two years alone have seen a 150 percent rise in surrogacy cases in India.

The reasons for the surrogacy boom in India are many. Most foreigners are drawn by the relative low cost. It is estimated that surrogacy costs just $12,000 in India compared to about $70,000 in the US. A 37-year old Russian came to Bhopal because she could limit her expenses to merely $4,500 as opposed to the prohibitive $35,000-45,000 in her own country.

Easy availability of women for surrogacy in India is also a major attraction. Whereas laws in the US and UK do not allow the surrogate woman to charge the childless couple, in India there are no laws preventing her from accepting compensation for renting her womb. This legal framework encourages more women to serve as surrogates, especially those from socio-economically weak backgrounds.

Newspapers and magazines have begun featuring numerous advertisements for ‘young, healthy, good-looking lady from decent family for surrogate mother.’ The success rate of such ads can be gauged from the fact that within 24 hours of such an advertisement in a leading Hindi daily in Indore, a dozen women came forward to provide their services.

The city of Anand in Gujarat has emerged as a hub for surrogate mothers (Manjhi’s case also traces back to Anand). Dr. Nayna Patel, Medical Director of the Akanksha Clinic in Anand is quoted in a report as receiving at least 40-50 requests per month from childless couples the world over. Dr. Dinesh and Dr. Shefali Jain, of the Assisted Reproductive Technology center in Indore, typically receive six domestic surrogacy queries per month. They report that a large number of foreign couples have begun coming to Bhopal and Indore to fulfill their desire to have a child. Similarly, several American, Russian and British women are registered with Dr. Randhir Singh’s Bhopal Test Tube Baby Centre for the procedure; the waiting list has already reached eight months.

Another luring factor for surrogacy tourism in India is the lack of restrictive laws. In fact, at the moment there is no law governing surrogacy in India. There is only a 126-page document regulating the technologies used, but a Surrogacy Bill is currently pending in the Indian Parliament that intends to address laws allowing parents to adopt their surrogate child. The Indian Council of Medical Research (ICMR) issued National Guidelines for Accreditation, Supervision and Regulation of Assisted Reproductive Technology (ART) clinics in India in 2005, but the guidelines are legally non-binding. They are especially hazy on critical issues such as the rights of the surrogate, the minimum age of the surrogate, details about the contracts, informed consent, and adoption requirements.

The issue of legal parentage has been particularly contentious, and for this reason surrogacy remains controversial in nations such as Japan. Other nations have already created clear guidelines: it is illegal in Italy and banned for commercial purposes in Australia, Spain and China while it is permitted with restrictions in the US, France and Germany. The Society of Obstetricians & Gynecologists in Japan is not in its favor, citing, in part, the possibility of custody battles.

The scenario becomes more dismal due to the lack of regulation of ART clinics. Many clinics are believed to be operating networks of professional surrogates and making profits in recruiting their services. In the absence of legal regulations, victimization of both the surrogate and the intended parents can more easily occur.

Of course, there are many ART clinics operating on Indian Council of Medical Research guidelines as well. In such places, the surrogate mother is made to sign a contract with the childless couple. But even then, counter legal experts, it is not clear whether such a contract has any legal sanctity, hence the need to enact surrogacy laws. This opinion was vociferously aired by speaker after speaker at a recent National Moot Court competition organized by Rizvi Law College in Mumbai.

The Union Health Minister, Mr. Anmbumani Ramadoss, also recognizes the need of the hour. In an interview with livemint.com, the minister is quoted as saying, “In the light of the recent controversy (involving a Japanese couple and an Indian surrogate mother), I think it’s time we had a law on surrogacy. It’s become more than sporadic and is lending itself to commercial exploitation like the kidney (transplant). In two months, we’ll put up a draft regulation on our website for public viewing and debate, and then take it to the law ministry.”

For surrogates and childless couples alike, such regulation could not arrive too soon. Although the custody battle in Manjhi’s case arose due to a very unexpected turn of events, the Yamada family’s tragic struggle reveals many holes that remain to be addressed by the Indian legal system. As countless more childless couples make their way to India for less expensive procedures, they should be aware that ignorance of this legal culture could exact a high price. For Ikufumi Yamada, the decision to create his own family using an Indian surrogate mother was one that changed his life forever.

Photograph by flickr user Meena Kadri used under Creative Commons licenses. – Ed.

About the Author
Priti Sehgal is a journalist presently based in New Delhi, India. After an exciting stint as a freelance writer for reputed Indian dailies and magazines, Priti’s passion for writing led her to a full-time career in journalism. She joined the reputed English daily The Times of India as a staff correspondent and has over 500 bylines to her credit. After receiving an offer from the Eenadu Group, Priti switched to television and joined ETV as a senior correspondent in the politically important state of Uttar Pradesh. She covered the careers of three Chief Ministers from three different political parties – Rajnath Singh, Mayawati and Mulayam Singh Yadav – as well as some of the country’s riots, Legislative Assembly elections and state visits by the Indian President and Prime Minister. Priti has also been published in the second edition of People Building Peace, a project of the European Centre for Conflict Prevention, and she is the ambassador of the US-based Companion Flag project in India.

Priti is currently taking a short hiatus to be a full-time mom to her toddler.