If the proposed ban on commercial surrogacy in India goes through, Indians may start traveling to countries such as Ukraine and Cambodia to commission babies, predict infertility specialists. The Union cabinet on Wednesday cleared the Surrogacy Regulation Bill, 2016, that allows only infertile Indian couples who have been married for five years to opt for altruistic surrogacy where there will be no monetary exchange between the commissioning parents and the surrogate.

“If Shah Rukh Khan wants a fourth child, he will go to another country and get it,” said Dr Nayna Patel, medical director at the Akanksha Infertility Clinic in Anand, Gujarat. Actor Shah Rukh Khan and his wife Gauri Khan had opted for surrogacy for the birth of their third child, AbRam. The bill – which still has to be introduced in Parliament – disallows couples who already have biological children from commissioning babies through surrogacy.

However, it is nearly impossible for an infertile couple to find a close relative to carry their child, doctors say. “The reason why commercial surrogacy picked up across the globe is because altruistic surrogacy doesn’t work,” said Dr Anoop Gupta, an infertility specialist in Delhi who has assisted more than 650 surrogacies.

In fact, doctors and lawyers working with couples hiring surrogates said that most of them hide from their families that they are commissioning a baby through a surrogate. “Couples tell me not to send them documents in a courier as they don’t want their families to know,” said Amit Karkhanis, a senior lawyer who specialises in surrogacy laws. “How can the government expect these couples to ask their close relative to become a surrogate?”

According to Dr Anjali Malpani, an infertility specialist who works in Mumbai, there is enough evidence that many Indian couples will require surrogacy. “We have young women coming to us with the tuberculosis of the genitals which makes it impossible for them to conceive,” she said. “For such women, the only hope is surrogacy and by asking them to look for a relative to carry their child, we are only adding to their pain.”

Seeking surrogates abroad

Dr Nayna Patel, medical director at the Akanksha Infertility Clinic in Anand, Gujarat, has been helping couples have children through surrogacy for the last 11 years. “Those who need a child through surrogacy will have to go to countries such as Cambodia, Ukraine and Israel,” she said. These are countries where commercial surrogacy is allowed.

And yet, there is always the fear that these avenues abroad may close off. “Cambodia does not have a legislation for surrogacy,” said Karkhanis, who has helped more than 300 couples. “There is always a possibility that the Cambodia government may ban surrogacy leaving many in a lurch.”

If this happens, the only legitimate option for Indian couples seeking surrogacy services may be in US.

Preeti Bista from My Fertility Angel-Fertility Care, an agency that helps foreign couples through surrogacy, said that she recently shut her operations in Cambodia owing to the absence of legislation. “Currently, my surrogacy programme only runs in Ukraine with local surrogates in Ukraine only,” she said. “However, it is indeed utter shame that surrogacy isn’t treated as Assisted Reproduction Technology arrangement" in India.

In India, the cost of surrogacy could be less than Rs 10 lakh depending on the clinic and doctor. In Cambodia and Ukraine, the same procedure cost more than Rs 25 lakh.

The head of the Cambodia Surrogacy Clinic Gaurav Wankhede has already got queries from Indian couples wanting to commission surrogacy abroad. The challenge for Indian couples, he predicts, is the issue with regards to citizenship. “From our past experiences, we have seen that Indian embassies abroad do not recognise surrogacy,” he said.

Besides, single persons and gay and lesbian couples are prohibited under the bill from commissioning surrogacy. “Even if they go abroad and get a child through surrogacy, their children will never be able to get Indian citizenship,” said Wankhede. "They might be stateless citizens as the country where the surrogacy was commissioned is also most likely not going to give them citizenship."

Legislative overreach?

Legal experts as well as doctors feel that the Indian government has taken a moral stand on the issue of surrogacy. “The government is deciding on how many children a couple can have,” said Dr Rita Bakshi, surrogacy specialist at International Fertility Centre in Delhi who finds that not only patients but even doctors from India may look at tying up with clinics in countries that allow surrogacy to offer their skills to infertile patients.

Lawyer Karkhanis pointed out that the bill demands that the infertile couple should be married for five years before opting for surrogacy. “If the couple knows in their first year of marriage that they cannot have a child naturally, why make them wait for five years?” he asked.

“Surrogacy shouldn’t be viewed as a wholly economic gain for clinics, doctors and agents, rather a humanitarian opportunity with the true benefit of empowering women to make choices for themselves and their bodies, to help create families, and then as a side, a boost to the local economies,” said Kim Hendrix from Complete Surrogacy Solutions, a US agency that offers clients options in India and Mexico. “India was pioneering in surrogacy, but in my opinion, the country is just too large to properly monitor each and every clinic and operator in the industry.”

Gupta, who assists with all types of infertility treatments and performed his first surrogacy procedure in 1997 said that only between 10% and 15% of his patients require and opt for surrogacy. “We needed regulations to safeguard the interest of all the parties involved and not a ban,” he added.