BIRTH PANGS: (Above) Manji Yamada and a poster of Chori Chori Chupke Chupke, a Bollywood film, which dealt with surrogacy

Little Manji Yamada arrived in Osaka last October to be united with her father. Manji, born in India of a Japanese father and an Indian surrogate mother, was luckier than the 23-month-old German twins Leonard and Nikolas Balaz. The boys’ parents are still waiting for the Indian courts to take a decision on their nationality.

Last week, the Supreme Court stayed a Gujarat High Court order directing the granting of Indian citizenship to the Balaz boys, by virtue of their being born via an Indian — a 22-year-old surrogate mother called Martha Kristhy — in India’s surrogacy capital Anand, Gujarat. According to the Indian Citizenship Act, 1955, a child is born an Indian if one of the parents is Indian.

The twins’ parents, Jan and Susanne, had sought Indian citizenship for their boys, to get them passports to facilitate their entry to Germany, which like most European countries does not recognise surrogacy and had therefore refused them visas. The central government questioned the Gujarat High Court verdict. The apex court is set to take the matter up on December 15. The twins, however, have been issued their travel documents, as directed by the Supreme Court.

The case represents a dramatic problem many couples are now waking up to — the trouble that arises when they try to take their babies out of the country. As a result, India’s burgeoning surrogacy industry is confronted with the prospect of losing considerable business.

No statistics exist on the number of foreign couples that head for India in their quest to obtain a child. But doctors confirm that the numbers have been growing by leaps and bounds. Dr Nayana Patel, whose infertility centre in Anand put India on the world surrogacy map, says she had six foreigners in 2007, 21 in 2008 and another 21 in 2009. She recruits 30 surrogates a month and her centre can house 54 expecting surrogates at any given time. The Law Commission estimates in its 228th report released this August that the assisted reproductive technology (ART) industry in India is worth about Rs 25,000 crore.

But the industry operates without legal sanction in India. The Assisted Reproductive Technology (Regulation) Bill, 2008, has yet to become law.

The industry is caught in a legal quagmire. First, the Law Commission is not in favour of commercial surrogacy. It talks of the need to adopt a “pragmatic approach by legalising altruistic surrogacy arrangements and prohibiting commercial ones.” But the ART Bill, 2008, seems to favour commercial surrogacy. It goes to great lengths to detail the number of instalments a surrogate should be paid by a couple that has a baby through her.

The second problem, of course, is the one that foreign couples now face. Many European countries do not recognise surrogacy as a legal form of parenthood. And the UK accepts altruistic surrogacy — that is, someone offering her womb for humanitarian reasons and not for money. “... No matter what the genetic make up of the child, UK law sees the woman who carried and bears the child as the legal mother,” the UK Home Office said in its inter-country surrogacy and immigration rules issued in June this year. “This remains even if the surrogate mother is a foreign national living abroad.”

Other legal questions abound. Is a child born to an Indian surrogate mother, an Indian citizen, as the Gujarat High Court held? And what if the foreign father of the child becomes single? Manji Yamada was born to a surrogate mother a month after her Japanese parents divorced. Her Japanese father could not adopt her, because the Indian law does not allow a single man to adopt a baby girl.

Another British-Indian couple (names withheld on request) shares an uncertain fate, as the civil court in Anand, has dismissed their plea for confirming the status of the commissioning mother, a British national, as the mother of the child.

The ART Bill, 2008, defines a surrogate mother as a woman who agrees to have an embryo generated from the sperm of a man who is not her husband, and the egg of another woman implanted in her to carry the pregnancy to full term and deliver the child to its biological parent(s).

Typically, doctors advise surrogacy when couples are keen on having their own children but cannot for a host of reasons. Mostly it is because the woman does not have a uterus, or has no ovaries, or has a damaged or defective uterus, says Dr Duru Shah, infertility specialist in Mumbai.

As the industry grows, raking in money, infertility specialists are making a quick buck by advising patients to opt for surrogacy without weighing the pros and cons, says Dr Anjali Malpani, infertility specialist in Mumbai.

Recently, a British-American couple in their late sixties approached G.R. Hari, a partner in the Chennai-based law firm Indian Surrogacy Law Centre, saying that they wished to have a baby through a surrogate mother. Hari says he had to dissuade the couple, who had adult children from previous marriages, from doing so. “Before coming to India to have a baby through surrogacy, intended couples must understand their own laws,” says Hari, whose firm has represented commissioning parents from the UK, Italy, the US and Australia, who wish to have babies through surrogates in India.

Many parents run into trouble. After the Manji fiasco, another Japanese couple had trouble taking their baby born through a surrogate in Anand to the US where they lived, says Dr Nayana Patel. “The mother (of Japanese origin) was a US citizen but the Japanese father was a US green card holder. The US embassy did not grant a visa to the baby, and they had to go to the US via Japan.”

The US, Dr Patel says, is “baby friendly” and allows its citizens to bring home babies born through surrogacy in India. But Australia and some American states do not recognise commercial surrogacy.

Would-be parents, however, continue to throng India for surrogacy because of the low costs involved. Hospitals and clinics in India offer couples a package deal, which involves the treatment, surrogate, housing and legal assistance — for Rs 10-12 lakh. This would cost up to 10 times as much in the US, says Dr Kedar Ganla, infertility specialist at Hiranandani Hospital in Mumbai.

“But we deserve to be paid more,” says Lalita, 33, a middle class housewife in Mumbai, who was a surrogate for a non resident Indian couple two years ago. “The couples that hire us can afford much more. They would spend this amount on shopping.”

Most surrogate mothers earn around Rs 2.5 lakh. If Lalita agrees to lend her womb again, it will be for not less than twice the amount, she stresses. The first time she needed the money to tide over a domestic crisis — this time it will be to buy a one bedroom flat.

Experts believe that a law has to carefully address the needs of women who rent out their wombs. After all, it’s not easy carrying somebody else’s child. The first time Lalita was pregnant with her own twin boys — now aged 10 — it was a happy affair. “I trusted in God to look after them,” she says.

But being a surrogate mother was tough. “It was stressful. I waited for the pregnancy to end and to hand over another couple’s treasure.” The Law Commission believes it is just a system that encourages women to rent out their wombs. “It seems that wombs in India are on rent, which translates into babies for foreigners and dollars for Indian surrogate mothers,” it says.

The commission recommends altruistic surrogacy but that may not be a solution, either. “It will be very difficult to get altruistic surrogates and relatives could end up being pressured to become surrogates,” says Dr Hrishikesh Pai, infertility specialist at Lilavati Hospital, Mumbai. Worse still, he adds, is the risk of a woman refusing to part with the baby if she is not legally bound by a financial contract.

“It would help to have a law so that the interests of both the surrogate and the commissioning parent are protected. Without a clear cut law, there is confusion and one has to go to court if there is a problem,” he says.

But Mumbai lawyer Amit Karkhanis points out that of the 150 surrogacy contracts he drafted last year — for couples coming from “Japan to Alaska and Finland to New Zealand” — only one surrogate threatened to abort the baby she was carrying if she was not paid what she demanded.

But even that one case highlights the need for a law on surrogacy. Till that happens, babies like little Manji and the Balaz twins will have to do the rounds of the courts.