Why law banning commercial surrogacy has landed women who rented their wombs in greater misery

“Things were different until four years ago. I used to earn a decent amount,” recalls Meena, who had turned to commercial surrogacy as a means to make some quick money for her family till the practice was banned under The Surrogacy (Regulation) Act, 2021.

“The first time I chose to be a surrogate was in 2017. I was 26 years old then and a mother of one. My husband was a daily wage earner [in Bhavnagar, Gujarat] and would make around Rs 100-200 a day. Some days he would go without work. We could barely afford food. That’s when I heard of surrogacy from a neighbour who had been a surrogate once,” Meena told The Federal.

The neighbour took Meena to a clinic in Anand.

“They [the staff at the clinic] explained the process to me and told me I had to undergo some tests first. The only thing that I was hesitant about was staying in a surrogate home [where the health and diet of the women would be monitored] through the nine months of pregnancy. I didn’t want to stay away from my son who was only two at the time. But eventually I signed up for the money. They gave me Rs 15,000 when I signed the form and Rs 2.5 lakh after the delivery. I could have never managed to earn that kind of money within a year,” she added.

That money helped her husband put up a tea stall in Anand in 2017. She signed up to be a surrogate for the second time in 2019.

“The second time, I carried the baby of a British couple. The clinic had told me the payment would be more if the couple were foreigners. I got Rs 3.8 lakh after I delivered that year. I was over the moon. My husband and I booked a one-room flat and paid the downpayment from the money I got from the clinic. The plan was to be a surrogate one more time to help us save some money, while we paid the EMI of the new house from the earnings of the tea stall. But then my husband lost his income in the Covid pandemic [which broke out in India in 2020] and by the time the lockdown [enforced by the Centre to control the spread of the disease] was lifted, the government had banned commercial surrogacy. We were back to having no income,” shares Meena.

Meena’s husband had to sell his tea cart to sustain the family post pandemic and eventually went back to working as a daily wage labourer. “After failing four EMIs, we had to let go of the house in January 2021,” Meena added.

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Surrogacy, where a gestational carrier carries a pregnancy of behalf of a woman who is unable to do it, saw its first successful case in India in 1978, in Kolkata. It was, however, only in the first decade of 2000 that commercial surrogacy — described in the 2021 Act which banned it as “commercialisation of surrogacy services or procedures or its component services or component procedures including… selling or buying or trading the services of surrogate motherhood…” — saw a boom in Anand.

What is said to be the town’s first surrogacy clinic, Akanksha Infertility Clinic, was opened in 1999 by Dr Nayana Patel, considered a pioneer in the sector. The clinic’s first surrogacy case was of a 46-year-old woman, who acted as an altruistic surrogate — someone who doesn’t receive payment for the service — for her daughter.

In 2002, India legalised commercial surrogacy, though according to experts it was more in the nature of guidelines than codified regulations. Soon, Akanksha was screening women to be commercial surrogates for clients who could not naturally conceive or carry a pregnancy to term.

“It was, however, not a simple process. We ran an array of tests to ensure the woman [surrogate] was physically fit to bear a child. The women we chose were between the ages of 25 and 40 and were married with at least one child. They needed written consent from their families [to be surrogates],” Dr Patel recalled, in conversation with The Federal.

She added: ““By the end of 2002, we had successfully delivered four children through surrogacy. Initially, it was just Indian couples and then word spread and parents from abroad and NRI couples began coming to us. By 2007, the number [of surrogate babies being delivered at the clinic annually] jumped to 55.”

Akanksha, and Anand, gained global attention after Patel appeared on the Oprah Winfrey Show in 2007.

The city saw a sudden influx of foreign couples seeking surrogacy services. By 2008, there were more than 100 clinics in Anand and the numbers kept growing until the ban in 2021, remember those from the industry or associated fields. “Surrogacy capital” and “Baby Factory” were some of the monikers attached to the Gujarat town during this time.

“Once there were more than 5,000 women in Anand who were involved in commercial surrogacy. While most were locals from the district, there were women from across Gujarat and even other states who came here. All of them had one thing in common. They all came from extremely poor families with hope to make quick money,” Vidyaben Thakkar, a member of Chetna, a Gujarat based NGO working for women and children, told the Federal.

She added: “Some of these women would get paid a decent amount once a year after they delivered the baby. But there were rampant cases of under payment, and even non-payment, as there were no guidelines that the sector followed.”

Ruby*, 43, had shifted from Jaspur village of Padra taluka, Vadodara, to Anand in 2013, to be a surrogate to earn money for her children’s education.

“My husband would earn about Rs 3,000-4,000 a month as an agrarian labourer in the village. I did not want my sons to share the same fate when they grew up. I wanted them to study. That’s why I chose to be a surrogate,” Ruby, who opted to be a surrogate thrice between 2013 and 2019, told the Federal.

“The first time I got Rs 1 lakh for carrying the baby of an Indian childless couple from Mumbai. The next two times I was a surrogate for NRI couples. The payment was substantially more than the first time. From the money I earned I put my boys in school in Vadodara city.”

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But Anand’s baby boom was not without its share of complications. One such was the case of “Baby Manjhi”. According to reports in 2007, a couple from Japan travelled to Anand for a surrogacy. However, they divorced in 2008, while the surrogate was carrying their baby. After the delivery, while the mother refused to have anything to do with the baby, the father too had to return to Japan following a visa expiry, with the baby unable to leave as she was recognised as neither an Indian nor a Japanese national. The Supreme Court, while directing authorities to issue travel documents for the baby, had also noted the lack of proper regulations in surrogacy cases. In 2008, a German couple who had twins through surrogacy in Anand, reportedly found themselves stuck in a legal mire, unable to take the babies home, as Germany did not recognise commercial surrogacy. The issue was reportedly resolved in 2010, with the babies finally leaving for Germany.

It was cases like these which prompted the Indian government to step in to regularise surrogacy in India. According to reports, by 2015, the Indian government was already mulling to put a stop to commercial surrogacy, but started by barring foreign couples from availing assisted reproductive technology (ART), which includes surrogacy, in India. The final ban on commercial surrogacy came in the 2021 Act, which came into effect in early 2022.

“As the news of the ban reached the clinics, many, especially the smaller ones, abandoned the women [surrogates] overnight. Only a handful of well-established clinics saw through the last of the pregnancies at their clinics and paid the surrogates,” rued Thakkar.

Meena was one amongst the last batch of 130 commercial surrogates at Akansha Clinic. She gave birth in mid-2022, receiving the last of her income from surrogacy.

Over the years, many of the former surrogacy centres have switched to IVF treatment, or to functioning as egg donation and freezing facilities, but as Thakkar points out, the women who had acted as surrogates “were left to fend for themselves”.

“In 2021, we celebrated delivering our 101 baby and shortly afterwards commercial surrogacy was banned in India. There were 130 women who were pregnant when the law was enforced. We made sure the women were taken care of and the babies that were delivered were handed over to the parents who had signed contracts with us prior to the ban,” added Patel, whose clinic now specialises in IVF births.

She added: “However, as we closed that [surrogacy] department completely after our last surrogate gave birth in February 2023, we had to let go of all these women. That was our last communication with the surrogates.”

Chetna has since helped some of the former surrogates find employment in women’s self-help groups or in offices, after offering them vocational training, such as sewing or in papad and pickle making. But their number remains few, with most resorting to working in the unorganised sector — while Meena works as a househelp, Ruby is a daily wage earner at a construction company.

The law, which was aimed at, among other things, curbing the “exploitation of surrogate mothers and children born through surrogacy”, has ironically landed them in greater misery. Not only have they been left in penury, but many have been abandoned by the very families for whose secure future they had turned to renting out their wombs for money.

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Both Meena and Ruby live alone in Anand now, after their husbands and in-laws “distanced themselves from them”. The women allegedly do not even have contact with their children.

Broken homes is a price reportedly paid by many former surrogates. In 2017, the Centre for Social Research (CSR), a not-for-profit organisation based in Delhi, found in a survey that of every 100 women who opt to become a commercial surrogate in Anand, at least 75 were abandoned by their families.

“Surrogacy has always been a controversial method of having children in India. Adding to that, our society do not have a respectable notion for surrogate mothers which is why clinics in Anand had surrogacy centres. It served the purpose of hiding the pregnancy from the immediate relatives and neighbours of the women and also helped in monitoring their health,” said Jyotsna Roy, a member has been associated with CSR for over 20 years.

She added: “Most women who opted to be surrogates faced social stigma and push back from their own family. Our survey also found a disturbing trend. While the immediate family – husbands and children were okay with the money that these women used to earn, they usually were not willing to accept the women post delivery. Owing to which, many women kept being surrogates multiple times. They needed money for themselves too, with no home to go back to anymore.”

A decline in health is also a likely challenge.

Jigisa*, 33, a resident of Gujarat’s Khambat town, became a surrogate for the first time in Anand in 2017.

“My sister, Lakshmi*, who used to live in Anand and had been a surrogate before, advised me to opt for it. Back in Khambat, both my husband and I worked as labourers and still couldn’t make more than Rs 6,000 a month. When I became a surrogate for the first time I got Rs 50,000 after delivering the baby. Being a surrogate gave me a better life.”

And yet, when she wanted to opt for it a second time, her husband was hesitant. Her sister, who had been a surrogate twice, had started having health complications by then — overdistended uterus, ovarian cyst and acute anaemia, according to the medical reports preserved by Lakshmi’s husband, a common complication of multiple pregnancies over a short period.

Still, Jigisa decided to go through with a second surrogacy, this time earning a lakh. She gave a part of the money for her sister’s treatment, saving the rest for her daughter.

But the family was unable to save Lakshmi, and after her death and the law banning commercial surrogacy, Jigisa and her husband — who had moved to Anand with their daughter to be near her when she became a surrogate — returned to Khambat and their life as labourers.

“My only regret is that I could not provide for her. She took it upon her to be the provider and made sure our three children never go hungry. She opted to be a surrogate for a third time knowing that her health would deteriorate, but we needed the money and I was unable to earn,” rues Ganeshbhai*, Lakhsmi’s husband, who lost his legs in an accident in 2012. “One day she fainted and was rushed to the Anand General Hospital where she passed away.” The family is now dependent on the earnings of Lakshmi’s eldest son, 21, a contractual worker at the Anand municipality.

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A female body needs time to recover after a pregnancy and child birth, says Dr Pallavi Chandana, gynaecologist and professor at Gujarat Medical Research Society (GMERS), Ahmedabad, while highlighting the possible risks of repeatedly opting to be a surrogate. “We advise a minimum gap of three years between two pregnancies. Multiple surrogacies can lead to increased risks of several health complications for the women who are opting to be surrogates. Distended uterus that can later become malignant, or cause severe menstrual complications, gestational diabetes, acute anemia, arthritis owing to deficiencies; all common amongst women who become pregnant multiple times at short gaps,” she said.

According to Rakesh Shankar, chairperson, Women and Child Welfare Department, Gujarat, the government had run multiple programmes to discourage women from choosing surrogacy as a means to earn a quick living at the cost of their health before the practice was banned in the 2021 Act. “There were counselling programmes conducted in neighbourhoods with lower income groups to build awareness of the risks of multiple pregnancies. Just after the ban, we had a drive in Anand and Ahmedabad to offer mental and social counselling to the former surrogates and help these women with vocational training as means of fiding gainful employment. But from what I know, there wasn't much footfall as most of these women did not want to be identified, and eventually, the programme was stopped.”

Perhaps Jigisa was unaware of these programmes, or maybe she didn’t see the point in them. But talking to The Federal, she questioned bitterly, “Did anyone ask us before banning the practice? The government took away our only source of income. Did the government feed me or care to provide me with an alternate employment.”

Concerns of health risks or the morality of commercial surrogacy mean little to her, when faced by the hard reality of impoverishment.

Her only solace perhaps, is in her family, who stood by through her decisions. Unlike Meena, who spends her days alone in her shanty in Anand.

(*Names of surrogates and their family members have been changed to protect their identities)