A photo of Mongul, an Indian woman in her late twenties, hangs on Pamela Brown’s refrigerator in California. Periodically, Pamela tells her two-year- old son, Asa, “Look, that’s Mongul. That’s where you grew. You grew in Mongul’s tummy.” Though Pamela is Asa’s biological mother, Mongul was his surrogate mother.
In 2006, Pamela had her first child. Due to complications with the delivery, however, she had to have a hysterectomy. Yet, Pamela and her husband Zack still wanted another child. “We realized we would never be able to afford surrogacy in the U.S.,” she explained. In their search for more options, they turned to India’s commercial surrogacy market.
Before coming to India for the procedure, Surrogacy India, the clinic with which Pamela worked, sent Mongul’s profile and questionnaire to Pamela. The profile included a picture of Mongul and, among other facts, her weight, height, religion, and level of education. The questionnaire also asked Mongul more personal questions: Does she feel emotionally supported? Who will support her? What are her hobbies? What foods did she crave in her past pregnancies?
At the start of the process, Pamela and Zack flew to India to meet Mongul and perform in vitro fertilization (IVF), in which an embryo created using Zack’s sperm and Pamela’s egg was transferred into Mongul’s uterus.
After nine months, Pamela got a call from Surrogacy India saying Mongul would be going into labor soon. Pamela and Zack took the next flight to Mumbai, not knowing if their son or daughter had already been born. When the day finally came, Pamela and Zach waited expectantly in the hospital with Mongul’s sister, brother, and father. Zack was able to communicate sparingly with Mongul’s brother, who knew some English.
After Asa was born, Pamela and Zack flew back the United States. They had planned on Skyping with Mongul to show her how Asa was doing, but because of the time difference, Mongul could only Skype when Asa was sleeping. Pamela did not want to wake him up, so contact faded quickly after the pregnancy. “It’s something I feel really guilty about,” Pamela admitted.
Looking back on the experience, Pamela said, “It was just a dream. We had just such a positive impression of Mongul. She was a really great person. She was just really sunshiny. A lot of surrogates you see who go into the doctor’s office don’t look really happy to be there and she didn’t have that sort of aura about her.”
When people think of India’s surrogacy market, stories like Pamela’s don’t often come to mind. The media and the public tend to focus on truly terrible stories. Al Jazeera recently published an article calling India the “Wild West” of surrogacy. The piece describes how middlemen travel to rural villages and convince impoverished women to sign up to be surrogates. The women, usually illiterate, do not understand what they are agreeing to and can end up being paid as little as 1,300 rupees, or $20, a month.
Claire Achmad, a former senior advisor to the chief human rights commissioner and executive director of the New Zealand Human Rights Commission, corroborated these stories. “There is a lot of exploitation of surrogate women. While there are some surrogates in India who come into an arrangement with free and informed consent, there are many who simply don’t understand what they are getting into,” she said. Hari G. Ramasubramanian, a chief consultant at Indian Surrogacy Law Centre, noted, “Most of the time, the surrogate agreements are drafted in languages not known to the surrogate.”
While we cannot discount these abuses, they only reveal one side of a complex business. The Confederation of Indian Industry (CII) estimates that somewhere between 2,400 to 4,000 foreign couples visit India each year for surrogacy procedures, to say nothing of the domestic market. To deal with such demand, over 3,000 IVF clinics exist in India, and the market has been reported to be worth anywhere around $400 million annually. It is important to note that all of these numbers are merely estimates, as no comprehensive study has been done on the breadth of India’s surrogacy market. In any case, the industry is massive and seems to be growing steadily.
India’s market has reached this size for three central reasons. First, it has state of the art facilities. Second, medical procedures are significantly cheaper in India than in other more developed countries. (The average surrogacy in India costs $14,000. In the U.S., the same procedure costs about $70,000.) Third, and most importantly, the market is unregulated. India’s commercial surrogacy market was legalized in 2002, but it was not until 2012 that the Indian government instituted any regulations. Thus, India had ten years for the market to grow with almost no restrictions. Anil Malhotra, the author of Surrogacy in India and a prominent lawyer explained to The Politic, “You can’t stop it. It’s too big. It’s flourished, prospered, and here to stay.”
If we accept that India’s commercial market is not going anywhere, the question then arises: How should the market be regulated to increase the number of stories like Pamela’s and protect the rights of all the individuals involved—the surrogate, the child, and the commissioning parents?
The first place to look for a solution is India’s legal system. In 2012, the Indian Home Ministry published guidelines banning gay couples and single men and women from using their market, making some clinics lose almost 50 percent of their business. Yet, the law did not stop these individuals from trying to have children. They were simply pushed into different markets. Guarav Wanklhede, founder and director of Become Parents, a surrogacy agency that works with clinics in India, Thailand, and Mexico, observed that some people went back to the U.S. or began looking into adoption. “The surrogacy scene in Mexico and Thailand really took off,” he explained.
Though these regulations curbed demand for the market, the government realized that larger problems existed within the current system, even before these regulations were established. As a first step towards addressing these systemic issues, the Assisted Reproduction Technology (A.R.T.) bill was introduced in 2008. The A.R.T. regulations aimed to standardize surrogacy and lay out the rights of the child, surrogate, and parents. It was redrafted in 2010 and 2013, but has not yet been passed by parliament. It was supposed to be discussed in 2014, but was pushed off the docket because of time constraints in the fall legislative session.
The most recent iteration of the bill available to the public aims to protect the rights of the surrogate mothers by hindering unethical marketing practices through stricter clinic regulations. However, while many of these regulations appear to be steps in the right direction, the bill remains silent on other issues concerning the health and protection of surrogates.
For instance, the bill allows surrogates to undergo surrogacy three times, while in many European countries the maximum is one or two. The bill also fails to address IVFs, C-Sections, and post delivery care necessary to ensure the physical and mental health of the surrogate. Additionally, while the bill does ensure that contracts must be signed between surrogates and parents, no notion of informed legal consent is discussed. “I don’t think you could say that this bill is a comprehensive system of human rights protection,” said Achmad.
Insufficient regulations aside, there are inherent cultural values that must be addressed in any comprehensive reform process aimed at women’s health issues. This is evident in one article of the A.R.T. bill that states, “In the event that the woman intending to be a surrogate is married, the consent of the spouse shall be required before she may act as such surrogate.” Thus, a woman cannot choose to be a surrogate unless her husband allows her to do so.
Professor Geetanjali Chanda is a senior lecturer in the Women’s Gender, and Sexuality Studies department at Yale. She has researched popular culture and feminist and transcultural pedagogy in India. She “would not be surprised at all if women needed their husbands’ permissions to get a surrogacy. It is part of the continuity in India’s history of women being seen as property of their husbands.” This trend is especially concerning given the negative role husbands may play in the surrogacy market. As Achmad noted, “There have been reports of surrogates who have been coerced into these procedures by their husbands and by the clinics themselves.”
Even with perfect regulations, however, there still is something unsettling about the drastic inequalities and power dynamics at play between the people involved in these surrogacy contracts—usually a poor Indian woman and a relatively wealthy foreigner or Indian.
Profiles of surrogates sent to clients at the International Fertility Center, a surrogacy clinic in India, illustrate the peculiar ramifications of these dynamics. Profiles read like baseball cards. One has two pictures of the surrogate woman. She is 32 years old and 5’2” tall. Her “body build” is “slim,” “hair type straight,” and “complexion wheatish.” She is separated from her husband and has an eight-year- old daughter. Her level of education is “basic,” her occupation, a “house wife.” There is something sterile and commodified about the description that seems wildly separate from the highly personal nature of the procedure.
Wanklhede sent The Politic a video distributed by Become Parents in which commissioning parents interview potential surrogates.
A young woman sits on a couch in the lobby of the Become Parent’s clinic. She hugs a blue pillow in her lap. Her English ability is minimal, so a translator is there to help. A man speaks from a computer screen on the couch.
“You don’t have a husband, but you do have one child?” he asked.
“I have a three year girl. I did have a husband but now I’m single. Okay?”
“Okay, so you divorced with your husband?” “No, I still live with my mother and father.” When struggling to understand another question, the translator chimes in, “If the officer wants to ask you if you have done this willingly will you be okay with that?” The woman nods and smiles. The translator says, “Yes, she’s okay with that Andrew.”
On the surface, these brief interviews and photo profiles prevent the commissioning parents from getting a sense of the potential surrogate’s motivations. It also makes it easier for a casual observer to assume that the women involved are being exploited or are taking the job for the wrong reasons. Yet, the issues may be more nuanced.
Peter is another successful client of Surrogacy India. He had twin girls last summer, and like Pamela, has a picture of their surrogate mother taped to his refrigerator. He understood why the interview might be unsettling, explaining, “It is probably the first time that these women have ever been filmed. It is in some business in a relatively urban place, and it must be an alienating and weird experience.” An interview can naturally be a difficult thing. “It’s exacerbated because of the power dynamics, and economic and cultural circumstances,” he said. “I think it’s partly for that discomfort that we wanted to go with a clinic where we could actually have a relationship with someone to get a sense of how she actually felt about it.”
As with Pamela, one of the reasons Peter chose Surrogacy India was because he and his wife had the opportunity to get to know their surrogate mother personally. By his account, a relationship with a surrogate helped him and his partner resist the impersonal structure of a fundamentally commercial market. Pamela’s and Peter’s surrogates both seemed aware of their choices, the gift they were giving the commissioning parents, and the benefits the payment for carrying another couple’s child would have on their lives.
Nela*, Peter’s surrogate, lived in Hyderabad, a city in southern India. When her husband left her, she and her two young children moved in with her mother. A year after, her mother died. “She went to live with her sister in Mumbai to start the surrogacy process, and from this process she has made enough money to buy a very very modest place for herself,” Peter said.
According to Peter, “She was very clear that she knew how she was giving us the greatest gift that anybody in our lives had ever given us. She felt good, virtuous, generous, magnanimous, and kind-hearted about what she was doing. She was also clearly doing it because there was a financial incentive involved. So I wouldn’t want to say it was only for the money, but she probably wouldn’t have done it if it weren’t for the money.”
Nevertheless, when a market so easily mixes financial incentives with a personal process, it is often difficult to distinguish between exploitation and agency. According to Chanda, “People think they are giving Indian women money, and surrogates see they are giving people life.” While in many cases, surrogacy may not be a woman’s first choice, it does allow her
to give an incredible service to another family while often making more money than she could in a decade. Surrogates are usually paid an average of $6,000. A job as a tailor, the job Nela had before becoming a surrogate, usually yields $50 a month.
Surrogacy is fundamentally an economic process, and what clients want is usually conveyed in the language of supply and demand. Pamela did not like the way Rotunda, another clinic in India, treated its surrogates. At Rotunda, she said, “You never met your surrogate. It was a quick hello in the clinic, and contact was discouraged.” The check a commissioning parent can give to ensure that their surrogate is being treated properly did not exist.
Instead, she turned to Surrogacy India. This freedom to choose may be an important way for the situation to change. Wealthy families can demand more from the clinics in terms of rights for the surrogates. To change the system, better laws might have to be paired with higher demands from those who commission the service.
However, this solution should not take away the voice of the surrogate, and moves have been made to give surrogates a greater say in the process. Ramasubramanian, chief consultant the Indian Surrogacy Law Centre, makes the argument that the lack of information, rather than the legal framework, is the central issue in the surrogacy market. He argues that laws are already in place for a surrogate to protect her rights, it is just a matter of informing her and giving her the tools to do so. “Her rights are quite well protected. As far as a surrogate mother is concerned, she has rights to the laws of contract, laws to abortion and protection. And she of course has human rights,” he said. Achmad noted as well, “Education and awareness will be a key thing here— both in India and abroad.”
The current 2014 draft of the A.R.T. Bill has yet to be released to the public, but there are rumors that this new draft will drastically change the international surrogacy market. “The indications from the government have been that in this latest version, the 2014 version, surrogacy will be restricted to people with an Indian nationality link,” said Achmad. The new bill would theoretically stop any foreigners from using India’s commercial surrogacy market. Wanklhede and Malhotra had heard similar rumors.
The recent bad press for India’s surrogacy market may be a reason why India would consider closing the market. According to Achmad, “Those sorts of stories may well have highlighted to the Indian government that the world is watching.” In doing so, it seems as if India may be burying the issues rather than confronting them directly.
Nevertheless, as with the 2012 regulations, it seems clear that removing more foreigners does not alter the abuses in the market and will merely push them into more loosely regulated regions.
Many interviewees commented that poorer domestic clinics outside of major cities had higher rates of exploitation and coercion. If India does end up closing it doors, more pressure may have to be put on the international community. Achmad noted, “There has been enough controversy and difficulty shown to exist for the people involved in international commerical surrogacy, that we are at a point now where we should at least be able to agree on some sort of minimum guidelines on how to treat and deal with people who are most vulnerable in international commercial surrogacy.” She added, “This would definitely be a start on the road to harnessing international human rights law to have some positive effect on the situation.”
*Name changed to protect privacy.