1. Reproductive Tourism in ‘Incredible India’: Are Overseas Patients Good for the Health of India’s Poor?
Swati Gola
Doctoral Candidate & Graduate Research Assistant
University of Manchester

2. Reproductive Tourism Sub-category of Medical Tourism (MT)
Cross-border movement to avail medical service
Reproductive Tourism
Travelling by fertility patients to avail Assisted Reproductive Technologies (ARTs)
In vitro fertilisation (IVF), gamete (sperms and eggs) donation, sperm injection, sex selection, maternal surrogacy and embryonic diagnosis

3. Reasons for Reproductive Tourism
Reliance on third parties. Thus some specific ARTs prohibited on ethical or religious grounds
Unavailability of a specific technology or service,
Lack of sufficiently skilled personnel and/or donors in their home country,
Lower costs,
Better standard of care
Expedited services in destination country,
Exclusion from services in their home country on the basis of age, marital status or sexual orientation,
Opportunity to combine the treatment with holidays
Expedited services in destination country – example of NHS
Exclusion from services in their home country on the basis of age, marital status or sexual orientation - Israel

4. Surrogacy Not a reproductive technique but an arrangement
‘In vitro fertilisation’ (IVF), allows a woman to carry an embryo that is created using egg and semen of either each genetic parent or donor egg/semen
Traditional surrogacy: woman is impregnated with the sperm of the intended father, carries the foetus and gives birth to a child for commissioning parents
Commercial surrogacy: the surrogate receives financial rewards for her pregnancy and relinquishes her legal rights over the child

5. Cost & Benefit Analysis
Surrogacy package in the US: US$ 40,000 to US$ 150,000
Surrogacy package in India: US$ 25,000 to US$ 30,000
Indian surrogates get paid: US$ 6,000 to US$ 10,000
Infertility clinics and Middlemen: Rest of the sum
Win-win situation for all

6. Regulations or lack thereof
Surrogacy is legal in India since no Indian law prohibits it
The Indian Council for Medical Research (ICMR) drafted the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics 2005
Voluntary in nature and legally non-binding
India a favoured spot for those intending parents who wish to circumvent the regulatory conditions of their home countries. An example of this practice is the case of Israeli gay couple Yonathan and Omer, who employed surrogacy services in India since the Israeli law does not allow gay couples to adopt or resort to a surrogate mother (Law Commission, 2009). Interestingly, even though the Indian law criminalises homosexuality as an unnatural offence, there were no impediments for a foreign gay couple employing a surrogate mother to deliver their child (Malhotra, undated). The Indian Penal Code, Sec Although on 2nd July, 2009, the Delhi High Court struck down a 149-year-old British law that criminalised homosexuality, though the Indian government has not taken a position on homosexuality to date. See Naz Foundation v Govt of NCT of Delhi, WP(C) No.7455/2001.

7. Legal Challenges In the US In India
Jaycee B. v. Superior Court, 42 Cal. App.4th 718 (1996)
In India
Baby Manji Yamada v Union of India 2008 (13)SCC 518
Jan Balaz v. Anand Municipality & 6 others. Gujarat H.C. 2009
Jaycee B. v. Superior Court, a child born to a surrogate mother had five people who could lay claim to parenthood – genetic parents, commissioning parents and a gestational mother.
Baby Manji (a baby girl) was born to the surrogate mother who has been commissioned by the baby’s genetic father and his then wife. The couple divorced before the birth of the child and since the wife was not the genetic mother, she refused to raise the child. Despite having three mothers – the intended mother who contracted out the surrogacy, the genetic mother who donated the egg, and the biological mother who gave her birth - legally the baby had none (Points, 2009). When the father tried to take the baby to Japan, the Japanese Embassy refused to grant Manji a Japanese passport or visa since the Japanese code does not recognise surrogate children. Since no Indian law addresses commercial surrogacy, the father then tried to adopt the child, only to find that under a 120 years-old law (Guardianship and Wards Act 1890), he could not adopt a girl child as a single man. The Municipal Council of the city in which the child was born refused to grant Manji a birth certificate and the national office also refused to issue a passport, since the father was not Indian. In a petition filed by Manji’s grandmother, the Supreme Court granted her temporary custody of Manji, and ultimately, she left for Japan with her genetic father and grandmother (Points, 2009). Jan Balaz’s case is also important since, in this case, the Rajasthan High Court took the view that the babies born in India to gestational surrogates are Indian citizens. The Central government challenged this decision in the Supreme Court on the basis that, since the commissioning parents were Germans, the two children were deemed German and, hence, could not be granted an Indian passport. The Supreme Court took a middle approach and advised the couple to adopt the children, since Germany does not recognise surrogacy arrangements but allows international adoption by its citizens

8. the ART Bill 2010
Permits gestational (but not genetic) surrogacy, for remuneration, i.e., commercial surrogacy, Sec 34(13)
Requires the surrogate to relinquish all parental rights over the child, Sec 34(4)
Resilient in stipulating the duties of the surrogate
Weak in protecting her rights

9. No mention of any procedure for informed consent or professional counselling for the surrogate
Fails to acknowledge the economic realities of surrogacy arrangements
No independent legal advice to set the terms of an agreement
Potential surrogates are susceptible to manipulation
May accept stringent contractual conditions or price below typical market price under pressure from the commissioning party or out of a simple lack of understanding

10. Inequities and Inequalities
Bill heightens gender inequality by:
a) failing to address the issue of the surrogate’s right to her bodily integrity,
b) requiring the consent of the spouse in case the potential surrogate is married. Sec 34(16)
Undermines the role of adoption and social parenting
RT underlines the global inequalities
still a luxury for those global citizens who cannot afford the costs of treatment
poor and less educated find themselves constricted by regulations and ideologies that restrict the use of reproductive technologies.
31 million orphans
Reproductive tourism is still a luxury for those global citizens who cannot afford the costs of treatment and thus cross borders and circumvent state regulations. Those poor and less educated find themselves constricted by regulations and ideologies that restrict the use of reproductive technologies. The inability of persons with low income to make use of reproductive technologies re-enacts and reinforces the local inequalities on the global stage

11. Conclusion Inequalities are a natural feature of the market economy
Commercial surrogacy is a structural reality in India
Does not undermine the responsibility of policymakers
Reproductive tourism is operating in India in an unregulated market economy
No evaluation of the relevant social, ethical and legal concerns
It cannot be denied that inequalities are a natural feature of the market economy in which reproductive tourism is based, and exist independently of reproductive tourism (Ikemoto, 2009). There is also no denial of the fact that commercial surrogacy is a structural reality in India, undertaken by some poor rural women as a survival strategy and a temporary occupation (Pande, 2009). However, it does not undermine the responsibility of policymakers to create a regulatory atmosphere that ensures that the market operates ethically and to minimise the risk of exploitation. It is unfortunate that, even after a decade, reproductive tourism is operating in India in an unregulated market economy where poverty-driven surrogacy creates an opportunity for exploitation and raises issues of female autonomy and reproductive rights (Deonandan et al., 2012). The analysis of reproductive tourism in India in this section highlights that, instead of evaluating the relevant social, ethical and legal concerns, Indian policymakers formulated policy initiatives and promoted medical tourism (including reproductive tourism) purely for economic benefits.

12. Thank You