Gestational surrogacy: Outsourcing a womb in India

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Gestational surrogacy is often the only route for couples who are unable to conceive naturally. Here's what you should know about the medical and legal processes in India

On 28 October 2015, the Department of Health Research of the Indian Ministry of Health and Family Welfare filed an affidavit in the Supreme Court that demanded a ban on surrogacy for foreigners.

This move is supposed to regulate the country’s $400-billion surrogacy industry, an industry that is mostly driven by the demands of customers who are based abroad. Since the Indian government does not support commercial surrogacy, the affidavit states that it should be an option only for Indian couples facing infertility.

But what is gestational surrogacy? How is it different from traditional surrogacy and how can it help couples?

Definition

Gestational surrogacy is a legal arrangement between a surrogate and intended parents. Here, a fertlised egg (sperm and eggs from intended parents) is implanted into the surrogate’s womb through in-vitro fertlisation (IVF).

IVF is used in the process because eggs from the intended mother are used to create an embryo, which is then implanted in a different womb.

theIndusparent.com spoke to Dr Malpani, founder, Malpani Fertility Clinic, Mumbai, on the subject. “Even though the eggs and sperms are of the intended parents, in some cases, an egg or sperm donor may be used with gametes of intended parents,” he says.

gestational surrogacy

Gestational surrogacy is often the last resort for Indian couples who are unable to conceive naturally

Why should I opt for gestational surrogacy?

There are a number of reasons why you would need to opt for gestational surrogacy. If you have any of the following problems, then it is time to review the option of gestational surrogacy.

  • You do not have a uterus
  • You are unable to carry a pregnancy
  • Your fallopian tubes are ruptured
  • You have polycystic ovaries
  • You have problems due to abnormal hormone fluctuations
  • Your cervix is not functional due to abnormal mucus production
  • You have been though unexplained repeated miscarriages
  • You have been through repeated failure of IVF transplantation
  • You suffer from severe medical conditions such as heart diseases and high blood pressure
  • You have a history of breast cancer or lupus
  • You have malformed uterus which does not enable embryo implantation

Continue reading to know about the laws of gestational surrogacy 

Laws of gestational surrogacy in India

Whether you arrange for a surrogate privately or go through an agency, there are certain legal complications you must sort out first. If, however, you decide to go for gestational surrogacy, know that it will take time, money and a whole lot of patience.

Legally, commercial surrogacy has been legal in India since 2002. At present, a legal contract between the parties and the Assisted Reproductive Technique (ART) clinics sets the ground for a gestational surrogacy.

This legal contract, as per the guidelines of the Indian Council for Medical Research (ICMR), states the following:

  • The surrogate mother should not be biologically connected to the baby. The Indian laws recognize only the intended mother as the actual guardian or mother of the baby.
  • The birth certificate of this child would bear the names of the intended parents and not of the surrogate mother.
  • Indian law allows for the use of donor sperms, wherein, the donor shall relinquish all his legal rights of paternity over the child. He shall also be protected under an anonymity clause.
  • There is no requirement to make any governmental documents pre-birth or post-birth of the surrogate child. This is a private dealing.
  • The surrogacy contract should include medical, delivery, IVF expenses and miscellaneous expenses of the surrogate mother.
  • Sex identification of the child is strictly prohibited under the Indian surrogacy laws.
  • Under these guidelines, a child has the right to know his surrogate mother upon reaching the age of 18 years. However, the intended parents are not obliged by any contract to reveal the same.
  • According to the Assisted Reproductive Technology Act 2008 under Sec 34(11), the intended parents must take responsibility of the child irrespective of whether or not he or she is disabled, either physically or mentally.
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Gestational surrogacy is moved along through a private yet legal contract binds the intended parents and the surrogate mother

All of the aforementioned clauses protect the surrogate mother, the intended parents as well as the child from any kind of fraud.

Dr Anubha Singh, medical director and consultant fertility at Shanta Fertility Centre, Delhi, spoke exclusively to theIndusparent.com on the matter. “Let us not forget an important aspect of gestational surrogacy, which is the requirement of surrogacy due to the inability to bear children naturally. That is the only reason parents choose this option and are wholly involved in the process,” she says.

Continue reading to know about the process of gestational surrogacy 

Process of gestational surrogacy

Even though you may not bear the child, as the intended parent, you will be completely involved in the process. Apart from bearing the medical expenses you will also pay for the health insurance, travel costs and legal bills for the surrogate.

You would also be involved in the medical screening of the candidate, which is the first process of selecting a surrogate. Dr Singh of Shanta Fertility Centre, Delhi, says, “The process begins with fertility counseling and slowly graduates to screening of the surrogate for infection, uterus damage, blood pressure and hemoglobin among other things.”

Dr Singh lists the following screening process:

  • Fertility counseling: This is the first step of gestational surrogacy where the intended parents meet a fertility counselor to understand the pros and cons of the process. “The intended parents must understand how this surrogacy would impact them and their relationship with the child,” says Dr Singh.
  • Scouting for a gestational surrogate: The next and the most important step in this process is to find a surrogate mother. This can be done privately or through agencies. “We recommend women who have previously given birth without complications and are between the ages of 24 and 30. That’s because they have a higher chance of delivery a healthy baby and do not face complications of high blood pressure and gestational diabetes among others.”
  • Screening of surrogates: This is another crucial step where the surrogates are screened for hemoglobin, blood pressure, infection, hypertension and diabetes. The surrogate mothers basically have to undergo pre-natal testing. “They go through an ultrasound and various blood tests that determine their body’s ability to carry a pregnancy,” says Dr Singh.
  • Singing of a legal contract: This is the final stage of the gestational surrogacy process where a legal contract binds the two parties. In India this is done the guidelines of ICMR.
gestational surrogacy

Women between the ages of 25 and 30 years are usually approached for gestational surrogacy and the intended parents take charge of all financial requirements during the process

Implanting of gestational surrogacy

The next step in the journey to become parents is the actual process of IVF. An IVF cycle takes about four to six weeks to complete. Through this method, the fertilized embryo is implanted in the surrogate mother’s womb.

Dr Singh of Shanta Fertility Centre, Delhi, explains how the process works:

  • Syncing menstrual cycles: The surrogate mother and the legal mother are given medications to sync their menstrual cycles. This is done so the uterus lining of the surrogate mother is ready by the time the embryo is implanted in her.
  • Producing eggs: Now, the legal or intended mother is given medications to stimulate the ovaries to produce eggs.
  • Fertlisation: Once the intended mother’s eggs are fertilized, the doctor through a medical procedure retrieves them. Simultaneously, the intended father donates his sperms so that the eggs can be fertilized in a laboratory.
  • Transfer of embryos: In this step, the embryo is transferred into the surrogate mother’s uterus.
  • Implantation and pregnancy: Once the eggs are implanted into the surrogate’s uterus, she would get pregnant and carry the pregnancy for the intended parents.

This entire process of gestational surrogacy may take months and even years, if you managed to find a healthy and willing surrogate. However, do remember that sometimes it takes about one to three IVF cycles for successful implantation of the embryo.

Continue reading to know about the success rate of gestational surrogacy

Success rate of gestational surrogacy

Once the IVF process is over, the birth of your child would depend on how successfully the surrogate mother is able to carry the pregnancy.

Dr Singh explains, “This largely depends on the health of the surrogate and previous complications. If she has been screened properly and is healthy, she can easily carry the pregnancy.”

gestational surrogacy

The success rate of a gestational surrogacy largely depend on how successfully the surrogate mother is able to carry the pregnancy

Risks of gestational surrogacy

If there is, however, any complication during the gestational surrogacy, it could have the following result:

  • The gestational surrogate may go through the discomfort and risks, which may be similar to any other pregnancy.
  • Gestational surrogacy is a legally complex and fairly expensive procedure. Dr Singh adds, “In India this process can cost anything between Rs 11 lakh and Rs 15 lakh.” It involves legal contracts and serious implications if it falls through in the middle of the pregnancy.
  • You will also deal with the same anxiety and pressure that the surrogate goes through, but in addition, you will face societal pressure. Some of your family members of friends might not understand your situation and you may need to organize an intervention.
  • Although experts say that it does not really happen in India, but if the surrogate refuses to give the baby to the intended mother, then she can face legal implications.

Dr Singh of Shanta Fertility Centre, Delhi, says, “These are prominent risks of gestational surrogacy and, therefore, it need sensitive handling. But let’s not forget that Indian couples only opt for this process when all other ways of conception have failed and when they indicate that they are willing to try gestational surrogacy.”

Do you have any questions for our experts on gestational surrogacy in India? Please ask them in the Comment box below.

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Written by

Deepshikha Punj