Surrogacy – The Indian scenario

Surrogacy: An insight

The past few decades have witnessed a dramatic increase in the worldwide prevalence of infertility.¹   Consequently, modern medicine has progressed by leaps and bounds bringing in its realm significant advances in fertility procedures.²   Among them, surrogacy is increasingly becoming popular as it enables the medically and socially infertile to have their own genetic children.^3,4     It is noteworthy in this context that celebrities, struggling with infertility, who have expanded their families by this method, have greatly empowered surrogacy practices and also inspired common people to adopt this measure.

The first recorded example of surrogacy can be traced back to Hindu mythology. According to Mahabharat story, the seventh child of Devki, Balarama was mystically transferred from Devaki’s womb to the womb of Rohini. In due course of time, Balarama took birth in Gokula. Therein, lie the roots of surrogacy.⁵

Technically, surrogacy refers to a method of reproduction whereby a woman, known as surrogate, carries a pregnancy and gives birth with the intent to give the child to the contracted couple/party.⁶

The intended parent(s) may opt for a surrogacy owing to any of the following factors:⁴

• Infertility and desire for genetic linkage: A couple that cannot have a child because of infertility or on account of medical contraindications to pregnancy for the intended mother, can resort to surrogacy if they do not want to adopt a child. Adoption does not provide a genetic link to the child while surrogacy does.
• Same sex couples: Such couples may resort to surrogacy to fulfill their dream of having their own child which is otherwise not possible.
• Single parent: For those who want to fulfill their desire of having a child without having a partner, surrogacy is an attractive option.
• People who are unable to have a child and are unable to adopt as international adoption closes.

The intended couple/parent who settle upon surrogacy as their preferred option may go for any one of the different types of surrogacy procedures available(table 1).⁷

Procedures involved in gestational surrogacy

Gestational surrogacy treatment involves an in vitro fertilization (IVF) cycle for the mother providing the egg, and preparation of uterine lining for the surrogate mother.

IVF cycle and endometrial preparation

The process of becoming pregnant through gestational surrogacy is very similar to a typical in vitro fertilization cycle. The only difference is that the woman implanted with the embryo is not the egg donor. IVF process involves fertilizing an egg and sperm outside the mother’s body. Once fertilized, embryo is placed inside the surrogate mother’s uterus for development and delivery. IVF and embryo transfer procedures involve 5 basic steps:⁸

Step 1: Induction of ovulation with clomiphene citrate and gonadotropins

Step 2: Oocyte retrieval

Step 3: Sperm collection and preparation

Step 4: Insemination of eggs and development of embryos

Step 5: Embryo transfer.

Embryo quality depends on quality of gametes (egg + sperm) and the lab culture conditions. It is critical that these procedures be carried out meticulously.⁹

Follicle stimulating hormone (FSH) and human menopausal gonadotropin (HMG) – called gonadotropins are the most commonly used agents to induce ovulation.¹⁰

Endometrial preparation is also of particular importance in this procedure. Although the optimal endometrial thickness required for embryo transfer is yet to be ascertained, experts advise a thickness of over 8 mm.¹¹   Estradiol valerate is potential agent for achieving optimum endometrial thickness. A study conducted in IVF surrogates reported that when the egg providers were less than 35 years of age, using estradiol valerate in the recipients led to a 61% clinical pregnancy rate in 62 cycles. The results highlighted the fact that estradiol valerate is a reasonable option to prepare the endometrial lining in recipients, and that the hormonal milieu of the endometrium plays a significant role in the higher implantation rates obtainable in ovum donor and IVF surrogate cycles.¹²

Zhang and colleagues¹³   evaluated the efficacy of hormonal therapy for the establishment of endometrium synchronous with the embryo in an oocyte donation and surrogacy fertilization in vitro-embryo transfer (IVF-ET) program. Researchers noted that estradiol and progesterone hormonal therapy brought about satisfactory results in an oocyte donation and surrogacy IVF-ET program.

Hormonal therapy thus appears to have significant beneficial effects in improving implantation and pregnancy rates in IVF surrogacy cycles.

Global trends and International scenario

With the confluence of advanced reproductive technology and globalization, surrogacy has bloomed at the global level. Infertile individuals have crossed borders to obtain treatments unavailable or unaffordable in their own country. However, tremendous growth in the practice of international surrogacy, particularly commercial surrogacy, has opened a Pandora’s Box of ethico-legal, social and health-related issues.¹⁴   While commercial surrogacy is legal in many nations including India, Ukraine, and California, it is illegal in England, many states of the US, and Australia. However these countries recognize children born though surrogacy, and citizens from these countries do participate in International surrogacy. In some countries altruistic surrogacy is recognized. Countries such as Germany and Italy permit neither commercial nor altruistic surrogacy.⁷

Indian perspective

The concept of surrogacy in India is not new. Although traditional surrogacy is strictly prohibited in India as per national guidelines, commercial Surrogacy guidelines came out in the year 2002. Ever since then, the country has become a leader in international surrogacy and is considered a favorite destination of surrogacy-related fertility tourism.¹⁵   Past few years had witnessed an upsurge in the number of couples/single parents coming to India for surrogacy arrangements, primarily owing to the fact that the cost of the whole procedure is nearly one third of what it is in US and UK.⁷   However, since the new MHA Guidelines have come out, there has been a sharp decline in International surrogacy cases in India.¹⁶

Legal construct

There is no specific legislation/ law which governs surrogacy in India. At the same time there is no law which prohibits it. However, it would be irrational to suggest that there is a lack of legal construct in India. Issues concerning surrogacy, parentage, the rights of parents, surrogates and the child have been addressed at both District court and Supreme Court level. The current legal construct consists of : The ICMR Guidelines¹⁷  , Report 228 of the Law Commission of India¹⁸  , The Honourable Supreme Court of India’s Judgment in the Baby Manji Yamada case¹⁹   and decrees in various civil courts in India, the ART (Regulation) Bill 2010²⁰   and the Ministry of Home Affairs (MHA) Guidelines²¹   (specific for international commissioning parents).

Complementing the guidelines are the various acts that all practitioners must follow. These include, but are not limited to:

• Artificial Conception Amendment Act, 2000
• Gazette 28-9-2000 (including donor anonymity)
• PCPNDT Act
• The current privacy laws with regards to medical and personal information
• The MTP Act, 1971.

For day to day practice, in the present time, the surrogacy contract between the parties and the ICMR/ MHA guidelines are the main guiding force for surrogacy arrangements in India.

The issue of birth certificates, in context of surrogate arrangements also holds paramount importance. As per the ART guidelines 2010²⁰  , the birth certificate issued in respect of a baby born through surrogacy should bear the name(s) of individual / individuals who commissioned the surrogacy, as parent(s).

According to the proposed law, surrogacy agreements are treated at par with other contracts under the Indian Contract Act 1872 and other laws applicable to these kinds of agreements. Some salient features of the law include the following:⁷

• Both the couple/single parent and surrogate mother need to enter into a surrogacy agreement covering all issues, which would be legally enforceable
• An authority at national and state level would register and regulate the IVF clinics and A.R.T centers
• The age of the surrogate mother must fall between 21-35 years, and she should not have delivered more than 5 times including her own children
• Three embryo transfers to the surrogate are permitted for the same couple
• If the surrogate is married, the consent of her husband is compulsory before she may act as a surrogate
• A surrogate should be thoroughly screened for sexually transmitted diseases (STDs), communicable diseases and should not have received blood transfusion in last 6 months
• All the expenses including insurance of surrogate, medical bill and other reasonable expenses related to pregnancy and childbirth are to be borne by intended parents
• A surrogacy contract should include life insurance cover for surrogate mother
• The surrogate mother may also receive monetary compensation from the couple or individual as the case may be for agreeing to act as surrogate
• A surrogate mother should not have any parental rights over the child
• The child shall be presumed to be the legitimate child of the married/unmarried couple/single parent with all the attendant rights of parentage, support, and inheritance.

Ethico-social aspects

With the steadily emerging ART clinics in India, several ethical dilemmas both for the intending couple/party and the surrogate have surfaced.⁷   Health professionals and regulatory bodies are important collaborators in this venture to attend to these concerns.²²   In context of Indian women who act as surrogates, there have been questions as to whether surrogacy is a form of exploitation or empowerment of women. This question is addressed by the Honourable Supreme Court of India which states that, “A woman has the right to make choices regarding her body and also the right of procreation under the right to life as guaranteed by Article 21 of the Constitution of India”.^23,24

Surrogate arrangements in India are additionally associated with an array of social implications. There is also further debate as to what happens when women are perceived to be “taken away from their families?” Pictures presented to both Indian and Western audiences often portray women being “kept” in dormitories’ away from families and social supports, isolated and ashamed, with everything being done in secrecy and isolation.²⁵

However, recent events such as the Indian society for third-party assisted reproduction (INSTAR) Walk ‘Surrogacy builds Families’²⁶  , in which over 200 surrogate mothers and their families marched to bring awareness of both their informed decisions and their families’ support, have shown that the scenario in the metros is different and more open and supportive of surrogacy.

To conclud….

A spectacular change in the field of reproductive technologies in the past decades has enabled many infertile couples, singles and same sex intended parents to realize their dream of having their own children. Among a bewildering variety of fertility arrangements available, surrogacy has emerged as an attractive option as it facilitates genetic link of the intended parents to the child. Although some countries across the globe do not recognize any form of surrogacy, whether altruistic or commercial, India permits both, and many foreign and local couples do medically indicated surrogacy.. In fact, India, in the context of surrogacy, is emerging to be a strong motivator of foreign clientele owing to the low cost and easy availability of women willing to act as surrogates.

However, surrogate arrangement is inundated with a multitude of ethical, legal and social issues which need to be dealt with meticulously. The crucial aspects include adherence to the National Guidelines and recognizing that the surrogate mother is the centre of the program and that her welfare should be of utmost importance to the contracted party, the legislature and the healthcare providers. Previously, there has been a social stigma attached to this practice among Indian population. However, events such as the INSTAR march, in the recent times have created awareness regarding the ethico-social aspects of surrogacy and support is building as surrogates gain a voice in this debate and talk about their experiences. Thousands of happy families built by surrogacy are providing convincing evidence that this is a viable option for building families in India.

References

1. Philippov OS, Radionchenko AA, Bolotova VP, Voronovskaya NI, Potemkina TV. Estimation of the prevalence and causes of infertility in western Siberia. Bull World Health Organ. 1998; 76(2): 183-187.
2. Quaas A, Dokras A. Diagnosis and Treatment of Unexplained Infertility. Rev Obstet Gynecol. 2008 Spring; 1(2): 69-76.
3. Rahmani A, Sattarzadeh N, Gholizadeh L, Sheikhalipour Z, Allahbakhshian A, Hassankhani H. Gestational surrogacy: Viewpoint of Iranian infertile women. J Hum Reprod Sci. 2011 Sep;4(3):138-42.
4. Ekberg ME. Ethical, legal and social issues to consider when designing a surrogacy law. J Law Med. 2014 Mar;21(3):728-38.
5. ‘Lord Balarama’s Appearance Day: A Talk by Giriraj Swami’. Available from: http://bhaktiyoga.wordpress.com/transcribed-lectures/lord-balaramas-appearance-day-a-talk-by-giriraj-swami/. Accessed on 3.9.2014.
6. Jovic OS. Surrogate motherhood as a medical treatment procedure for women’s infertility. Med Law. 2011 Mar;30(1):23-37.
7. Pikee Saxena, Archana Mishra, and Sonia Malik. Surrogacy: Ethical and Legal Issues. Indian J Community Med. 2012 Oct-Dec; 37(4): 211-213.
8. DeCherney AH. In vitro fertilization and embryo transfer: a brief overview. Yale J Biol Med. 1986 Jul-Aug; 59(4): 409-414.
9. Ni W, Xiao S, Qiu X, Jin J, Pan C, Li Y, Fei Q, Yang X, Zhang L, Huang X. Effect of sperm DNA fragmentation on clinical outcome of frozen-thawed embryo transfer and on blastocyst formation. PLoS One. 2014 Apr 14;9(4):e94956.
10. Leanza V, Coco L, Grasso F, et al. Ovulation induction with clomiphene citrate for infertile couple. Minerva Ginecol. 2014 Jun;66(3):309-12.
11. Jimenez PT, Schon SB, Odem RR, Ratts VS, Jungheim ES. A retrospective cross-sectional study: fresh cycle endometrial thickness is a sensitive predictor of inadequate endometrial thickness in frozen embryo transfer cycles. Reprod Biol Endocrinol. 2013 May 10;11:35.
12. Feinman M, Sher G, Massaranni G, et al. High fecundity rates in donor oocyte recipients and in-vitro fertilization surrogates using parenteral oestradiol valerate. Hum Reprod. 1993 Jul;8(7):1145-7.
13. Zhang L, Chen G, Liu P. Hormonal therapy for the synchronization between donor and recipient in an oocyte donation and surrogacy fertilization in vitro-embryo transfer program. Zhonghua Fu Chan Ke Za Zhi. 1996 Aug;31(8):486-9.
14. Knoche JW. Health concerns and ethical considerations regarding international surrogacy. Int J Gynaecol Obstet. 2014 Aug;126(2):183-6.
15. Anu, Kumar P, Inder D, Sharma N. Surrogacy and women’s right to health in India: Issues and perspective. Indian J Public Health 2013;57:65-70.
16. Chaudhuri M. New Indian visa rules exclude single people and gay couples from child surrogacy. BMJ. 2013 Jan 24;346:f475.
17. National Registry of Assisted Reproductive Technology (ART) Clinics and Banks in India. Available from: http://www.icmr.nic.in/icmrnews/art/art.htm. Accessed on 1.9.2014.
18. Law Commission of India. Available from: http://www.lawcommissionofindia.nic.in. Accessed on 1.9.2014.
19. Supreme Court of India. Available from: http://indiankanoon.org/doc/854968/ Accessed on 1.9.2014.
20. The assisted reproductive technologies (regulation) bill – 2010. Available from: http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf. Accessed on 1.9.2014.
21. Policies and Guidelines. Available from: http://www.mha.nic.in/Policy-Guidelines. Accessed on 1.9.2014.
22. Widge A, Cleland J. Negotiating boundaries: Accessing donor gametes in India. Facts Views Vis Obgyn. 2011; 3(1): 53-60.
23. Center for reproductive rights. Available from: http://reproductiverights.org/sites/default/files/documents/media_bo_India1215.pdf . Accessed on 1.9.2014.
24. Judgements. Available from: http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070. Accessed on 1.9.2014.
25. Living inside the house of surrogates. Available from http://www.bbc.com/news/magazine-24275373. Accessed on 1.9.2014.
26. INSTAR: Media coverage of Surrogacy Walk followed by workshop on the 20th of April. Available from: http://instarorg.blogspot.com.au/2014/04/instar-media-coverage-of-surrogacy-walk.html. Accessed on 1.9.2014.