There is no question that surrogacy remains one of the most complex issues society faces today. While it is an effective way of helping some infertile couples to have a baby, it raises a number of complex ethical and legal issues which we have still not been able to tackle effectively.
How do we ensure that infertile women who do not have a uterus can use surrogacy treatment to have a baby , since this is the only medical treatment option available to them ? How can we ensure that poor infertile women are not coerced or exploited into becoming host wombs ? How can we make sure doctors provide surrogacy treatment only to couples who actually need it ? How can we resolve the challenging issues of genetic parenthood and social responsibilities ? And how do we resolve the rights of the genetic mother versus the birth mother if there is a dispute ?
Some countries have taken the easy way out and just banned surrogacy outright. I think this is unfair. Why should a woman who does not have a uterus, and who can have her own baby with the help of surrogacy, be deprived of the chance to use this option ? In fact, I would go so far as to say that it is unethical to ban surrogacy, because this encroaches on an individual’s reproductive autonomy.
Let’s look at some of the simple situations first, before we move on to the more complex ones.
Most people would be quite comfortable with allowing a sister to be an altruistic surrogate for a woman who does not have a uterus, if she is comfortable doing so. This means that most people are not averse to the idea of surrogacy itself , if it’s done properly and helps infertile couples to have the children they desire. Similarly if a woman who already had kids agreed to be a surrogate for an infertile woman who could have carry her own babies, most people would not object.
The problems start cropping up when we talk about commercial surrogacy, because money is now changing hands. Once money enters a transaction, then things become much murkier. Why is this so ?
In reality, there’s nothing wrong in paying someone to being a surrogate . Just because someone agrees to become a surrogate for money does not make this unethical. As long as all parties involved understand what is involved and are happy to take part, this is fine. After all, it is a voluntary transaction between consenting adults, each of whom is choosing to participate.
So when so eyebrows start getting raised ? It’s when clinics start taking shortcuts and arranging surrogates purely for commercial considerations, without considering what’s in the infertile couples or the surrogate’s best interests. The tragedy is that this is going to become increasingly prevalent because of the ICMR guidelines, once these become law.
This is because the ICMR has put the burden of sourcing and counseling surrogate mothers onto commercial agencies. Unfortunately, while the ICMR Rules have strict guidelines as to what an IVF clinic needs in order to be recognized and registered, there are no guidelines for who can be a surrogate agency. This means all kinds of agents, middlemen and fixers are crawling out of the woods today , and approaching IVF clinics, offering to “find” surrogates for them, so that they can make a quick buck. Most doctors are too busy to care – and are quite happy to turn a blind eye, as long as they can continue treating their patients. They feel that looking after the surrogate is the agency’s job, and do not critically examine how the surrogates are counseled or looked after.
This is a shame, because it allows all surrogacy arrangements to be viewed with a jaundiced eye. Unethical surrogacy agencies will use pimps to hire prostitutes to become surrogates; while other swill confine 10 surrogates to live in a single room, away from their own children , for the duration of the pregnancy. Once these kind of unsavoury arrangements come to public notice, there will be a hue and cry – and the standard knee jerk reflex will be – Ban surrogacy !
What about the activists who claim that surrogacy allows people to treat babies as commodities; or that surrogacy is just a kind of prostitution, where the woman is selling a part of her body for financial gain. I feel this is an unfair criticism. Infertile couples resort to surrogacy to have a baby only after a lot of soul searching . It is never a “spur of the moment” thoughtless impulse decision – and the babies born as a result of surrogacy treatment are deeply loved and cherished. Is the surrogate “selling” her womb ? Again, I think this is unfair. Just because a woman is poor does not mean she is stupid – and as long as she understands what she is doing and does this of her own free will, she should be allowed to exercise her freedom to do so. This is far better than having a professor who lives in an ivory tower dictating what she is allowed to do – and what she is not, just because she is poor !
I agree that the present system leaves a lot to be desired. It is broken and it needs to be fixed urgently ! What’s wrong with it ? For one, it’s open to a lot of abuse and misuse. Let’s look at these one by one
1. Overtreatment. There’s no doubt that surrogacy is overused, misused and abused. Infertile couples are often fed up and frustrated – especially when they have failed multiple IVF cycle or suffered from many miscarriages. They are depressed and disheartened – and feel that surrogacy would be the perfect option for them. Little do they realize that surrogacy is an expensive and complex treatment option, which is best reserved for women without a uterus. Research shows that the reason for failed implantation is much more likely to
be genetically abnormal embryos ( because of poor quality eggs), rather than a uterine problem; and that embryo adoption or egg donation would be a far better solution for them. However, they have low self-esteem are often not capable of thinking critically – and when a doctor offers to do surrogacy treatment for them, they feel this is the best solution for all their problems, as it bypasses all the hurdles mother nature has created for them. So why do doctors suggest surrogacy for them ? Unfortunately, the reason is purely commercial – for the sake of money. Doctors can charge much more for surrogacy treatment, as compared to the simpler options, so most of them are quite happy to do so, without discussing simpler ( and less expensive) options ( which may actually be better for the patient) with them.
2. Dishonesty. Because there is very little transparency in most of these surrogacy arrangement, many unscrupulous doctors take undue advantage of this by lying to their patients. There are doctors who tell the patient that the treatment worked and that their surrogate is pregnant after the embryo transfer ; collect the balance payment due – and then tell them that she unfortunately miscarried at 8 weeks of pregnancy ! It’s very easy to take these patients for a ride, because there is no documentation – and there is no way the patient can verify or dispute these claims. The poor patient is completely dependent on the doctor’s honesty and professionalism – and unfortunately, not all doctors are upright.
3. Secrecy. Because most clinics prefer being very secretive and hush-hush about surrogacy treatment ( and I always wonder why ? After all, what do they have to hide ?) it’s often the sad reality that the middleman siphons away most of the money, and the surrogate gets only a pittance. This is exploitation – and it must be prevented
4. Poor documentation. The surrogacy treatment paperwork today leaves a lot to be desired. Lots of doctors don’t even bother to do it – while others fudge it or do a bad job. This can create lots of potential problems – some of which have become headline grabbers already, as in the Baby Munjee case.
Surrogacy is a complex process , because it involves multiple players, each of whom may have different interests . It is this complexity which leads people to believe that it’s not possible to streamline this process. It’s stupid to take an ostrich in the sand attitude and pretend that the problem does not exist. It’s far better to address this proactively, so we can prevent problems from arising !
What we need to do is to look for solutions ! I’d like to propose a very simple cost effective solution which can be easily implemented , at no additional cost, and which will help to keep everyone happy.
The solution is this - only adoption agencies are authorised to provide surrogates. Adoption agencies have experience and expertise in family building – and in dealing with infertile couples; doctors; lawyers; and babies ! Also, it helps to reinforce the idea that surrogacy and adoption are complementary option, not competitive, because the adoption agency can offer them both options. Moreover, the money earned on the surrogacy treatments can be used to promote adoption as well. In this model, the doctors are only treatment specialists – as they should be !
How would this work out in real life ? The infertile couple who wanted surrogacy would approach an IVF specialist, who would evaluate their problem and decide if they needed surrogacy or not. If he thought they did, then he would contact the adoption agency and ask them to organize a surrogate mother for this couple. The couple would then go to the adoption agency with this referral note; and would put their name down on the surrogate wait list. The adoption agency would have an active surrogacy recruitment program, where they would screen and counsel prospective surrogate mothers, to decide if they were good candidates for this. The agency would then match up the couple with a surrogate; collect the fees which would be placed in an escrow account; and use their in-house lawyer to sign the surrogacy agreement contract. Armed with this, the infertile couple and surrogate would go back to the IVF clinic, where the doctor would perform the IVF treatment. Once the surrogate got pregnant, the doctor would then refer her back to the adoption agency. The agency would then ensure that she got excellent prenatal care from an independent obstetrician; and home visits to her house would ensure that she was taking good care of herself. After the baby was born, the agency would ensure that the intended parents’ name was placed on the baby’s birth certificate; and handover the baby to the infertile couple. This would ensure that most loopholes are plugged and that surrogacy treatment is performed properly.
The adoption agency thus plays a very important role in this process, and makes sure that the counseling, the legal paperwork and the payments are all performed properly ; that the surrogate is protected and looked after well ; and that after the baby is born, the right baby is handed over to the right infertile couple. This way, the doctor focuses on his core competence – doing the IVF – while the rest of the non-medical tasks are performed by the adoption agency. Infertile couples are much happier that the process is transparent and open; and society is reassured that surrogacy is performed ethically and correctly, and that exploitation and misuse is being prevented.
This way, the complex process of surrogacy is broken down into its individual pieces, each of which is performed by the organization which is best suited to doing so.
What role does the judiciary play in all this ? It is important to have regulations laid down, which will authorize only adoption agencies to provide surrogate mothers to IVF clinics. Also, since most surrogacy arrangements will sail through smoothly, no judicial intervention will be needed ordinarily, thus preventing an additional burden to our already overstrained courts. It’s only if and when disputes arise that we will need to take recourse to the courts.
Even more importantly, it’s a fact that the law has not been able to keep up with reproductive technology – and this will always be a problem with all laws and regulations . The involvement of social workers will ensure that advances, as and when they occur, will be utilised sensibly, keeping the best interests of everyone - the infertile couple; the surrogate and the baby in mind ! Allowing social workers to provide oversight is effective. They are trained professionals who will be motivated to perform efficiently.
With this system, transparency is encouraged, which will prevent exploitation. Good clinics will set the benchmark , and others will be forced to follow suit. Thus, if the clinic routinely shows photos of embryos to the patients, this will soon become the norm for all surrogacy clinics !
Equally importantly, this system protects everyone. Infertile couples are happy that their surrogate is being looked after well; surrogates are fairly compensated; and doctors can focus on improving their medical treatment and pregnancy rates, since the paperwork is taken care of by the adoption agency.
What do we do when things go wrong ? Yes, they will – but the reality is that things go wrong only when the surrogacy treatment is not done properly. The chances of problems arising when it’s done properly are low.
What’s the danger of leaving things as they are ? The biggest danger is that the present guidelines encourage the establishment of “for-profit” commercial surrogacy agencies. While some of these will be run by ethical professionals, the danger is that a few bad apples will take unsavoury shortcuts to make a quick buck – and the resultant bad press will end up harming everyone – good IVF clinics; and infertile patients who need surrogacy as well. All IVF doctors will be painted as villains, who are willing to go to extremes, just to make a quick buck.
Is this going to be a panacea for all problems ? Of course not ! I understand that adoption agencies can often be bureaucratic organizations which get bogged down in paperwork. And there will be some unethical and incompetent social workers as well ! It’s just that having adoption agencies actively involved in the process will help to prevent lots of problems. Problems primarily arise because of poor patient selection; inadequate counseling of surrogates; poor surrogate selection; lack of transparency; the presence of legal loopholes; and the involvement of “for-profit” unregulated middlemen who subvert the process and exploit patients and surrogates for money. Since adoption agencies are non-profit bodies, who employ social workers who are skilled in counseling and family building; and are used to dealing with lawyers and infertile couples, they offer a perfect solution to this problem. The beauty is that no additional organizations would need to be created to tackle this onerous problem – we would just have to make more efficient use of the existing organizations. Even better, the money which adoption agencies make from these surrogacy arrangements could be used by them to take better care of the abandoned children they put up for adoption; and to promote their adoption efforts as well !
The problems surrogacy presents are not unique to India – they are present all over the world ! It’s just that India today has a great opportunity to create a smoothly functioning system which can serve as a model for the rest of the world !