Indian Council for Medical Research orders all fertility clinics to stop surrogacy services for foreigners

New Delhi, June 28: Rita is one of the last surrogates in India carrying a child for a foreign couple. In October last year, when Rita was around five months pregnant, the Indian Council for Medical Research sent a notification (PDF) to all fertility clinics, ordering them “not to entertain any foreigners for availing surrogacy services in India”.

Earlier, in a written affidavit to the Supreme Court, the Indian government had confirmed it “does not support commercial surrogacy” and that the new law will have provisions to “prohibit and penalise commercial surrogacy services”. An Asian Age report says that as the government finds it a “contentious” issue, addressing it “is the need of the hour”.

India has been criticised for its failure to regulate its surrogacy industry and seems determined to address surrogacy as a standalone issue: the much-discussed Assisted Reproductive Technology Bill, drafted in 2007 by the then congressional government, of which surrogacy was a part, has now been been narrowed down to deal with just surrogacy and will be renamed the Surrogacy Regulation Bill.

It is at present being discussed by a group of ministers headed by union health minister J P Nadda.

The Indian Council of Medical Research directive followed the release of draft legislation by India’s health ministry prohibiting foreigners – except those with family origins in India – from employing Indian surrogates.

The new law is in its final stages and is expected to be passed soon, outlawing foreignsurrogacy with the aim of protecting the rights of surrogate mothers.

Facing losses in what was a lucrative trade – India’s surrogacy industry is estimated to be worth around $500m per year – Indian clinics have started moving out to Cambodia, a country with ambiguous surrogacy laws and a visa-on-arrival facility for Indian nationals. More than a dozen Thai and Indian clinics are already operating there.

“I am aware of a few Indian and Nepali clinics that have set up in Cambodia,” says Sam Everingham, director of events and content for the Australia-based Families through Surrogacy. “The surrogates come from Vietnam, Laos and Thailand. Some may also come from India – that’s not clear yet.”

Non-Indian surrogates often charge anything from $15,000 upwards, and in the US, for example, where commercial surrogacy is allowed only in certain states, it can cost upwards of $150,000. In India, however, the costs are often well under $30,000.

“Prospective parents won’t want to pay that amount, especially for a country where surrogacy laws are ambiguous,” says Nepal-based Preeti Bista, cofounder of My Fertility Angel Cambodia.

These clinics will undoubtedly begin hiring Indian surrogates in Cambodia, Bista believes, simply because “they are cheaper”.

This was the result when, in 2012, India banned single and gay-couple surrogacy. Neighbouring Nepal, which allowed surrogacy as long as the surrogate was not a Nepalese citizen, emerged as an offshore surrogacy hub with Indian clinics impregnating and then smuggling Indian surrogates across the border into Nepal for deliveries – a foreign country where the mothers’ rights were not clearly defined.

It all came to a head in April last year when a massive earthquake hit Nepal and many Indian surrogates were stranded as Israel airlifted its own citizens and their babies, leaving the surrogates stranded in a quake-ravaged country. The country suspendedcommercial surrogacy the following August.

Bista was a coordinator for an international fertility agency that worked through an Indian clinic when the Nepal earthquake hit. She says they had to send surrogate mothers who were mid-term in their pregnancies back to India, while some others stayed behind in temporary shelters in Nepal to wait out their pregnancies.