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Two women and a baby

Malini Aggarwal (name changed) wanted a baby — and thought that Sarita was the answer to her problem. The 42-year-old upper middle class Mumbai professional couldn’t carry a baby to full term and was ecstatic when Sarita, a 23-year-old slum dweller, agreed to rent her womb.

All was quiet — until the twelfth week, when Sarita threatened to abort Malini’s baby if she did not cough up an additional Rs 1,00,000. The Aggarwals had no choice but to concede. A new contract was signed between the two, spelling out a revised compensation of Rs 3.5 lakh to be paid to Sarita.

In Mumbai, Dr Nikhil Datar, a gynaecologist and medico legal consultant, was confronted with a case where a 40-something upper middle class couple had to pay an additional Rs 1 lakh when the surrogate insisted on keeping one of the couple’s twins she was carrying. Her rationale: “I was paid to carry only one child.”

The last couple of years have been seeing more and more women fulfilling their dreams of motherhood, through both related and unknown women. Dr Indira Hinduja, an infertility specialist in Mumbai, says that among her patients, the number of couples opting for surrogates has doubled in the last five years.

The high financial stakes — most couples agree to pay the surrogate mother several lakhs — and the absence of a law governing the practice of surrogacy have, however, rendered these deals increasingly fragile. Money is often a point of dispute, and there are occasions when surrogate mothers are reluctant to completely break off ties. Dr Hinduja speaks of cases where the surrogate mothers insist on seeing the children they’ve borne every birthday.

Lawyers and couples hiring surrogates try to draw up contracts that they hope will be foolproof. But contracts can always be breached — as Mumbai High Court lawyer Amit Karkhanis, who tried to broker peace between the Aggarwals and Sarita, discovered a few weeks ago.

The law itself can pose a problem. Section 23 of the Indian Contract Act deems an agreement unlawful if it defeats the provisions of other laws; causes injury to a person or property; or if the court regards it as immoral or opposed to public policy. In the present scenario, the final call rests with the courts, which could consider surrogacy “a moral wrong, even if an ethical right,” says Dr Gopinath Shenoy, a Mumbai gynaecologist and former judge of the Consumer Disputes Redressal Forum, Mumbai suburban district.

The National Guidelines for Accreditation, Supervision and Regulation of ART (Assisted Reproductive Techniques) Clinics in India, which include dos and don’ts on the issue of surrogacy, are yet to be enshrined in legislation. The guidelines, drafted in 2001, are currently undergoing some last minute revisions by Dr Hinduja, a member of the National Advisory Committee for ART.

But even if the guidelines become law, the odds could favour the surrogate. “After all, a woman who carries the child can be the lawful mother — nobody can refuse her that,” says Dr Hinduja.

As per the guidelines, a surrogate aborting another couple’s child in the first trimester of pregnancy will have to refund the couple the money paid to her while she carried their unborn child. However, according to the guidelines, an abortion between the 12th and 20th weeks of pregnancy, under the “medical advice of two medical practitioners,” made mandatory by the Medical Termination of Pregnancy Act, 1971, would absolve her from returning the money given to her.

The guidelines are, however, mum on the issue of compensation for the surrogate or her family if she gets injured or dies because of complications caused by the pregnancy or childbirth.

“Surrogates do not always envisage the possible risks related to the various minor surgical procedures in IVF (in vitro fertilisation) that they would have to undergo, however minor,” says Dr Datar. One of the commonest of these procedures is the cutting back of embryos, to prevent multiple pregnancies.

While the revised guidelines no longer bear the clause that put the onus of a surrogate’s safety entirely on her, not everybody is relieved. “This could result in a blame game between the parties,” says Dr Nayana Patel, an infertility specialist in Anand, Gujarat, who worries about the “legal position” of her clinic, should anything “go wrong with the health of the surrogate”.

The guidelines go to great lengths to protect the surrogate and the unborn child from HIV — forbidding the surrogate from sharing syringes, undergoing blood transfusion from uncertified blood banks and even abstaining from sex during pregnancy. Neither she nor her husband can have an extramarital relationship during the pregnancy, or for six months before signing up to be a surrogate.

Before putting them through IVF procedures, ART clinics say they test surrogates twice within a span of three to six months for HIV — which is the window period during which the virus could evade detection.

But a surrogate could turn HIV positive during pregnancy. And not all clinics insist on testing during this period. Some experts, like Dr Kamala Selvaraj, an infertility specialist in Chennai, use the weapon of fear to keep surrogates free of possible infection.

“They’re told that they would lose the baby if they have sex during pregnancy,” she says. Risk, clearly, is one constant in the contract between a surrogate and the biological couple. “But the contract ultimately rests on trust,” says Anamika, a 23-year-old Kathak teacher in Calcutta who hopes to be a surrogate for the second time. The ART guidelines do not permit her to lend her womb more than thrice.

Legal sanction or not, surrogates like Anamika are soon finding their way into the list of noble professionals. “I tell women that it is an honourable profession,” says Dr Selvaraj. “It is better and pays more than the Rs 3,000 to Rs 5,000 a month that one gets in an office,” she adds.

And as long as the law is with them.

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