Many a foreign couple with money to spare, and especially NRIs, are flocking to India drawn by its lax laws, affordable medical expertise and women willing to lend their wombs to raise own families. And for most, their hunt ends in a small town of Gujarat: Anand.

It is to Anand that Dr Ifukum Yamada and his wife came looking for a surrogate mother. All went off well till the couple got divorced, and the wife pulled out of the deal. The surrogate mother has quit the scene after delivering the 13-day-old baby, and the infant is waiting in a Jaipur hospital for the case to get settled as Dr Yamada fights for her in court.

However, what has got in the way of Dr Yamada’s plans is not India’s surrogacy laws, for there aren’t any, but adoption laws. While it may be the first such case, Anand has seen pretty much of everything.

India’s surrogacy boon began in January 2004, with a grandmother at the Akanksha Fertility Clinic here delivering her daughter’s twins. The success of Dr Nayna Patel’s enterprise — reported across the world — quickly spawned a virtual cottage industry. Now Dr Patel’s clinic has lower middle-class women walking up and offering to be surrogate mothers. While under the law doctors can’t act as middlemen, business is flourishing in the absence of a law.

To Dr Patel’s credit, she ensures safety through a foolproof contract signed between the surrogate mother and the couple. While the surrogate mother promises in writing that she would never contact the child again after birth, the couple agree to cover all the medical expenses of the pregnancy, in addition to paying for the “services”. The surrogate mother usually gets Rs 1.5 lakh to Rs 2 lakh.

Dr Patel also ensures that the women coming to her are healthy, in their 30s, of a good background, married with a children or two, and have the consent of their families, especially husbands and mothers-in-law. This is important as the process is long drawn and can involve complications. Sometimes the delivery doesn’t go through in first implantation.

There are also Indian Council of Medical Research (ICMR) guidelines, which say: “A child born through surrogacy must be adopted by genetic (biological) parents unless they can establish through genetic (DNA) fingerprinting that the child is not theirs.”

While seeking that the laws and guidelines regulating surrogacy be friendly for foreigners and NRIs, Dr Patel says: “There should be a clear guideline for a financial contract between a surrogate and the couple. It should be in black and white. Also, according to the present guidelines the couple can request for the medical termination of pregnancy at any point of time. It should be stopped. There should be very compelling reasons for a couple to ask for that.”

Admitting that the absence of laws makes India among the top destinations for couples opting for surrogacy, unlike most European countries as well as the US, Dr Pankaj Desai, the President of the Federation of Obstetric and Gynaecological Societies of India (FOGSI), says: “It is a demand and supply situation. The medical costs here are relatively lower, the expertise at part with any other country and there are no major legal or ethical complications.”

Dr Desai is a consultative member on the committee set up to draft a proposed Bill on surrogacy laws. The Bill proposes to bring both IVF (in-vitro fertilisation) and surrogacy under stringent legal scrutiny.

Though surrogacy is perceived as renting a womb, there are many shades to it. Surrogacy with oocyte, or egg donation, is considered “partial surrogacy”. But because the procedure is performed through IVF, in practice this is also termed “gestational surrogacy”, for which legal and ethical acceptability varies from country to country. Under the ICMR guidelines, surrogacy with oocyte donation has not been specifically mentioned, says Dr Desai.

In the UK, in contrast, “gestational surrogacy” is allowed only for exceptional reasons, but without commercial involvement.

In addition to the actual act of surrogacy, the sourcing of surrogate mother also has an ethical dimension. In Israel, law does not allow the commissioning couple to have a relative as a surrogate mother because the law accepts surrogate mother as the real mother. This is obviously contrary to the Indian experience, where grandmothers have become surrogate mothers.

In the UK, the surrogate (host) may be a member of the family of the genetic parents or may be procured through patient infertility support groups. In the US, highly professional commercial agencies — many of them run by lawyers — bring intended couples and women who are willing to act as surrogate hosts together.