Mumbai: Will surrogacy law tweaks help couples?

According to fertility experts, surrogacy was highly sought after from the mid-2000s to 2020. Representation pic

Tushar, 43, a Mumbai-based businessman, and his wife Riya 42, (names changed) had married in late 2019. But, COVID-19 hit the next year with social and economic disruptions. When the dust settled, they decided to start a family. "We were already very old and conceiving naturally did not work for us," he said.

In 2022, the two had just begun their IVF process. There were consultations with doctors, multiple rounds of them. Eggs were taken for fertilisation. There were emotions at stake; Tushar and Riya wanted to be parents to a biological child. They had already spent about R5 lakh. And, then, Riya was diagnosed with a serious case of hypertension, which would put her life at risk if she were to get pregnant.

"Now we started doing rounds of cardiologists," said Tushar. The desire for a child was still there, but now there were only two options left: one was adoption and the other was surrogacy. The couple was more comfortable with the latter.

Also Read: Mumbai: New study sheds light on increasing cancer survival

According to fertility experts, surrogacy was highly sought after from the mid-2000s to 2020. Representation pic

All the fertility experts whom mid-day spoke to recalled how surrogacy was more and more sought after from the mid-2000s to 2020. Couples who could not have a child through IVF were opting for it, and the surrogates were compensated well by families.

Like every other sector, the pandemic brought disruptions here, too. There were lockdowns after lockdowns, and even after they were lifted, couples as well as surrogates were hesitant to come forward, fearing health risks due to COVID-19. "There were no surrogacies that year or the year after that, and even now the numbers are negligible," said Dr Kedar Ganla, an IVF expert who is also associated with BMC's Sion hospital.

Ban on incentives

In 2021, the Central government brought about the Surrogacy (Regulation) Act. Apart from adding layers of bureaucracy, this Act banned any kind of incentives, monetary or otherwise, that would be paid by the intending couple to the surrogate mother.

The Act used the term "altruistic surrogacy" and medical or insurance expenses were exempted. The purpose was to stop the exploitation of surrogates by middlemen and prevent multiple pregnancies.

In the last two years, Tushar and Riya have met with countless women and their families, begging, and when all failed, in desperation, even offering them direct or indirect monetary assistance. Nothing has worked, as people have been fearful of legal actions.

There has been opposition to this Act not just from the intending couples but also from public health activists. Deepa V, a health researcher, said the position taken by most who work towards the rights of women and patients has been that surrogates need to be compensated. "We see this as reproductive labour, and like any labour, this also needs compensation. Moreover, the altruistic part can also put pressure on vulnerable women in the families of the intending couples," she said.

"No one wants to put their body through nine months of hardship for a child that is not even theirs without compensation," Tushar said. They have so far spent about Rs 10 lakh on consultations, lawyer fees, travel to faraway places in search of an altruistic surrogate.

All of it has taken a mental toll on the two, especially Riya. Their case was straightforward: Riya could be pregnant through IVF, but her medical condition put her life at risk in doing so, and all they needed was a surrogate, which they could not find.

Next amendment

The next amendment to the law in 2023 was what brought about a direct exclusion as donor surrogacy was restricted, meaning only those like Tushar and Riya who could provide self-eggs were allowed to opt for it. Meanwhile, those with medical conditions that did not allow them to do this were filtered out.
That year, a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome had challenged the amendment in the Supreme Court. It was only a few days ago that the Centre took into consideration the plight of women like her.

The new law now states, "In cases when the District Medical Board certifies that either husband or wife constituting the intending couple suffers from a medical condition necessitating the use of donor gamete, then surrogacy using donor gamete is allowed."

It further creates a provision for a single woman, widowed or divorced, to opt for surrogacy.

ExpertSpeak

While IVF experts have welcomed this move, it is unlikely to make the lives of those who choose this procedure any easier. "The larger problem of paperwork needs resolution. Every official interprets the law according to their interpretation. I have had cases where a couple in Mumbai was asked to go to their home in UP for the procedure based on their Aadhaar address," said Dr Ganla.

Dr Nandita Palshikar, a gynaecologist and an IVF specialist working with several corporate hospitals in the city, said, "I haven't seen any couples since 2020, partly because of COVID and mainly because the law became so stringent."

On Tuesday, Dr Palshikar provided consultation to a 45-year-old woman who could not produce eggs. "She wants to opt for donor eggs for her body as she has already entered menopause. Now while she is not a candidate for surrogacy, some people do not have a choice other than surrogacy if they want a biological child," she said.

The procedure has now become controversial for medical professionals, as any lapses in the process could also land them in prison for up to five years.

Last resort

Dr Shilpa Saple, who practises in Santacruz, also said that it has been years since she was involved in surrogacy procedures. The last one was before the 2021 Act. She received a few inquiries last year about donor surrogacy, but they had to be rejected due to the 2023 law. "This is truly the last resort as no one wants to opt for it unless everything fails," she said.

All noted the first hurdle now is finding an altruistic surrogate, and the second then is the paperwork that comes along with it.

"The purpose of the law was to prevent exploitation. It could have been done with strict regulation of scientific and ethical processes to ensure the safety of the surrogate mother. Now the result has been that even though surrogacy as a medical procedure is not banned there is kind of a ban on it as it is barely happening. Most or almost all IVF clinics have discontinued surrogacy services given the requirements which are impossible to meet and there are harsh punishment clauses," said a city-based IVF expert who did not wish to be named.

While the surrogates chosen by the intended couple do not always come from the poorest of the poor backgrounds as there is a fitness part that comes into play, Deepa noted that the women are also not from very privileged backgrounds.

There is also so much social stigma associated with surrogacy as well as IVF that at one point there used to be hostels for surrogates. "I've had patients who opted for surrogacy but had to step out of Mumbai until the child is born as there was so much societal pressure on them," Dr Saple said.

This is the last year that Tushar and Riya will search for a surrogate. "I cannot be an old man, dying as my child reaches his 20s. Even if I don't die by then, I doubt how much I will be able to contribute to that child's later life," said Tushar.

2021
Year Surrogacy (Regulation) Act was passed

2023
Year when law was last amended