New laws have killed surrogacy,say Bengaluru fertility clinics

Movie couple Nayanthara-Vignesh’s twins bring the spotlight back on surrogacy amid talk that they may have flouted the law

Movie star Nayanthara and her director-husband Vignesh Shivan announced the birth of twins last week, sparking speculation that they may have flouted surrogacy laws.

The laws, which came into effect on January 25, ban commercial surrogacy on the grounds that it is exploitative. Altruistic surrogacy is legal.

“In an older law, they banned surrogacy for NRIs and foreign nationals but this law bans commercial surrogacy altogether,” said Dr Ashwini N, senior consultant, high risk pregnancy specialist, Gunasheela Hospital, Koramangala.

The surrogate mother will now have to come forward willingly and not take any money. She should also be related to the couple. This sounds good on paper, but few women will agree to be surrogate mothers without any benefits, she explains. She believes the new law is likely to make surrogacy almost impossible in India.

With confusion over what is legal and what is not, surrogate births have come down over the years. Doctors across the board say the prospects look bleak for childless couples considering surrogate babies.

“This is because of the social stigma. I find it very difficult to believe that someone from within a family will come forward and bear a child for nine months,” says Sanjay Agarwal, director, Mannat Fertility Clinic, Marathahalli

Many who call his clinic ask about the implications of the new law, but don’t do much after that. They get about seven to ten enquiries every week.

“The numbers have now come down to zero. Since this law came into being, we haven’t done a single surrogacy,” he says.

Dr Ashwini says a surrogate mother puts her body through a lot, and with no incentive, women may stay away from it altogether.

Dr Srinivas K, professor, department of obstetrics and gynaecology, Bangalore Medical College, supports the new law. “There was a lot of exploitation before, especially of illiterate women and those from lower socio-economic backgrounds. There was a restriction earlier about how many times they could be surrogates but that wasn’t followed at all,” he told Metrolife.

Working in one of the busiest IVF clinics in India, Dr Ashwini says surrogacy is necessary for couples in difficult health circumstances.

“We have a lot of patients with repeated IVF failure and repeated miscarriages. Or the general health of the mother is such that a pregnancy will cause her harm. These are candidates for surrogacy,” she says. The law also calls for special registration for fertility clinics. “Not all clinics that offer ART (assisted reproductive technology) services can act as surrogacy clinics now,” she says.

Clinics are in no mood to go through the hassles of registration. “We don’t have enough clarity about the law so we are not even talking about surrogacy right now,” says a spokesperson from GarbhaGudi IVF Clinic.

K Manohar, who works in the surrogacy space, says, “Ever since the government announced the law, we have stopped taking up surrogacy and won’t resume it even in the future.”

As far as Nayanthara’s babies are concerned, Dr Ashwini suggests they could well be within the framework of the law.

“The implantation must have happened nine months ago, probably before the new surrogacy laws came into picture,” she says.

The Surrogacy (Regulation) Act allows a gestation period of 10 months from the date of the law coming into force to surrogate mothers to protect their well-being. The gestation period is the time between conception and birth, this period was allotted to protect the existing surrogate mothers.

Tamil Nadu Health Minister M A Subramanian is talking about an inquiry to find out whether the celebrity couple flouted the new surrogacy laws.

Legal issues

The new law bans commercial surrogacy and only allows altruistic surrogacy, which means there must be no exchange of money. The surrogate must be genetically related to the intending couple and must be a married woman between the age of 25 and 35, with a child of her own. She can be a surrogate only once, and only three attempts of the procedure are allowed.

What’s the row?

If Nayanthara and Vighnesh went in for commercial surrogacy after January 25, they could have flouted the law. Hiring a surrogate mother is now banned, but altruistic surrogacy is allowed.

Clarity on guidelines
on October 24

The Surrogacy (Regulation) Act, and The Assisted Reproductive Technology (Regulation) Act were introduced earlier this year.

While the former governs the practice and process of surrogacy in India, the latter helps the authorities supervise and regulate assisted reproductive technology clinics.

Dr Asha Vijay, director and founder of Garbhagudi IVF clinic, told Metrolife that fertility centres across the country had filed a petition seeking clarity about the new law. In the interim, they were given three months of time to process the pending cases of surrogacy. “We are expecting full guidelines on October 24,” she says.

“Enquiries have significantly come down and nobody wants to come forward now. Banning commercial surrogacy and having only altruistic surrogacy will discourage surrogacy, which will impact people with genuine needs,” she says and goes on to illustrate.

“We saw a case recently where the woman had no uterus. She had to go through so many legalities and procedures because of the new law that she could not find somebody for altruistic surrogacy. No family member during this day and age will come forward if the process is not easy. The government must consult the experts before passing such laws.”

Another petition, filed before the Delhi High Court, argues they are discriminatory against single men who may want to become fathers, and married women who already have children and are desirous of expanding the family through surrogacy.