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New restrictions on surrogacy


Foreign Couples in Limbo After India Restricts Surrogacy Services

New rules barring foreigners from hiring surrogate mothers force them to plan their next steps


Wall Street Journal

Gea Bassett and Doug Smith of Seattle counted on a surrogacy service in India to fulfill their years' long desire to have a second child. Now the couple is scrambling to recover their frozen fertilized eggs from a Mumbai fertility clinic after the country's recent move to bar foreigners from hiring surrogate mothers.

"They are our babies," Ms. Bassett, 37, says. "We're talking about probably carrying them in a cooler, putting them in a taxi, getting them into an airplane. Do we really know that they're going to make it?"

The Indian Council of Medical Research, a government-appointed body, last month instructed the country's fertility clinics to stop providing surrogacy services for clients from abroad. The move is part of a government effort to impose tighter limits on a growing industry that critics say exploits poor, local women.

The policy change has upended the fertility business in India, a popular destination for surrogacy in part because the price tag, at about $25,000 including in-vitro fertilization treatment, is relatively low. Having a baby with a surrogate in the U.S. costs about $250,000, according to the Lancet, a British medical journal.

The new rules have sown confusion among prospective parents. "So many people are stranded," said Nayana Patel, medical director at the Akanksha Infertility Clinic in the western state of Gujarat. Around 150 foreign couples registered with her clinic are in the process of having eggs fertilized and implanted in surrogates, she says.

A London-based couple-a 42-year-old jewelry designer and her investment-manager husband who asked that their names not be used-have a surrogate at a Gujarat clinic who is now three months pregnant. "We don't know how this impacts and affects that baby. I guess we're just hoping for the best," the London woman says.

Soumya Swaminathan, director general of the medical-research council, said the case of the London couple and others were "unintended consequences" of the directive.

A subsequent notice said certain couples whose embryos were already being carried by surrogates could apply to the relevant state health authority to be considered on a "case-to-case basis" to see if they are allowed to proceed.

Surrogacy is often the last resort for couples who aren't able to have children on their own, even with fertility treatment. The process starts with in-vitro fertilization, or IVF, in a lab, where eggs harvested from a woman are brought together with sperm from a man. Viable embryos are transferred into a surrogate mother, or frozen for use at a later date. Surrogates are paid a monthly stipend until the birth of a baby, at which time the child is handed over to the couple who commissioned the birth. Surrogates are usually only allowed to carry a maximum of two babies at a time.

The Indian government has tried gradually to put the brakes on the surrogacy business. The latest restriction, targeting foreign couples, has been welcomed by some women's rights advocates in India who say the industry has evolved with little regulatory oversight. Other women's groups say they support more regulation but not a ban. Some fertility doctors and surrogate mothers, have protested the decision.

Thailand outlawed commercial surrogacy earlier this year. Some U.S. states allow the hiring of surrogates. The new Indian restrictions leave Russia, Ukraine and Mexico as the biggest players in low-cost commercial surrogacy. Other countries allow only not-for-profit services, which draw few surrogate mothers, or outlaw the practice entirely.

Jennifer Hahne, a high-school psychologist from Chicago, was diagnosed with breast cancer while undergoing fertility treatment in 2013. She had her eggs harvested before starting chemotherapy, which can damage reproductive organs. Ms. Hahne and her husband, Steven Melich, sent three frozen embryos to India. Efforts at an Indian clinic to implant two of the embryos in surrogates failed. A third attempt ended in a miscarriage in June.

Ms. Hahne and Mr. Melich, both 38, still have two embryos they froze at a clinic in Chicago. They aren't sure what they will do next, partly because of the high cost of surrogacy in the U.S., Ms. Hahne said.

"Here I am doing this crazy thing by sending my embryos to India," said Ms. Hahne. "Now that's not going to work. It's just blow after blow."

India has no law governing surrogacy. Instead, the industry has been regulated by guidelines issued by the medical research council, a government body headed by the most-senior bureaucrat in the country's department of health research, part of the Ministry of Health.

Last month's directive from the medical research council came days after the Ministry of Health released draft legislation that would make it a criminal offense for foreigners to be involved in surrogacy in India. Parliament is expected to take up the bill in December.

Some fertility doctors have challenged the council's new rules in court. Earlier this month, a Mumbai judge temporarily lifted the ban for two clinics in the city, giving them 15 to 20 days to continue serving couples who were "in the midst of treatment" for surrogacy. It wasn't clear if additional clinics will win such relief.

Ms. Bassett and Mr. Smith, the Seattle couple, said they chose India because they felt more secure there than in other foreign countries offering surrogacy services and they weren't able to afford the prices charged in the U.S.

Ms. Bassett, chief executive of an environmentally friendly home-cleaning company, said she read "The Baby Chase: How Surrogacy Is Transforming the American Family," a 2013 account of a couple having their three children with Indian surrogates. She chose the same clinic featured in the book, Surrogacy India, in Mumbai, which advised her to undergo fertility testing in the U.S. before traveling to India.

The couple has a son, Zizi Smith, who is 11. But while trying to have another baby, Ms. Bassett says, she has had three miscarriages.

The couple traveled to India earlier this year. Doctors harvested eggs from Ms. Bassett and fertilized them in a lab with Mr. Smith's sperm. The resulting embryos were frozen, so that the couple could comply with Indian regulations limiting surrogacy to heterosexual couples who had been married for at least two years. Ms. Bassett and Mr. Smith, who had been together more than a decade, got married in July 2014.

"We were counting down the months" until July 2016, when the embryos could be transferred into a surrogate, said Ms. Bassett.

Late last month, the couple was notified by the Indian clinic that they wouldn't be able to move forward because of the new rules barring foreigners. The first thing Ms. Bassett recalls thinking was: "We've got to get our embryos out of there." The Indian clinic told the couple it will keep their embryos safe and if the new rules become law, the couple could look at ways to export them, Ms. Bassett said.

She says she has been quoted prices of between $4,000 and $7,500 to ship the embryos to another country. Right now, she says, she thinks the risk isn't worth the cost.

Vikrant Sabne, Surrogacy India's legal adviser, said the clinic has stopped taking new clients. "With regards to previous [existing] patients, the position is not clear what is to be done," Mr. Sabne said. "We are seeking clarification from different agencies. With regards to individual clients, it's not appropriate to comment," he added.

"We're heartbroken and we're so sad," said Ms. Bassett, of Seattle. "But we knew the risks that we were taking to step into this world and start this process."

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