Stateless babies? And the surrogacy contract. (Update 2)

Many intended parents are interested in understanding whether the Indian surrogacy contract they enter into is legally enforceable were the surrogate to try and keep the baby. Fortunately, these contracts have not yet been tested. Unfortunately, that means no one really knows how the contracts would hold up in a court of law, if it were ever to get to that point.

There have, however, been two well publicized legal cases around babies born through surrogacy. Both of these cases revolved around the baby’s citizenship, not the legality of the contract. In neither of these cases was the surrogate trying to keep the baby.

What these cases have in common is that the babies are effectively stateless. Neither their intended parents' home country, nor India, recognizes their citizenship. As a result, it is extremely difficult for them to get travel documents to both leave India and enter their destination country.

A very short summary of the cases:

• Baby Manji. Baby Manji was born in July 2008 to an Indian gestational surrogate with an unknown egg donor. Unfortunately, the Japanese intended parents got divorced in June 2008; the intended father wanted to raise the baby, but the intended mother walked away. Japanese law recognizes the mother as the woman who gave birth to the baby, so the Japanese embassy would not issue a Japanese passport. Even though he was the genetic father, Indian law required the intended father to adopt the baby. But, Indian law does not allow single men to adopt baby girls. While this was being sorted out, the intended father had to return to Japan, and his mother came to India care for Manji. To further complicate matters, an Indian NGO filed a court petition claiming that Manji was a victim of “child trafficking”. The Indian Supreme court dismissed the NGO’s claims and granted temporary custody to the Japanese maternal grandmother. In early November, 2008, the Indian government ultimately agreed to issue an identity certificate (not a passport) and the Japanese Embassy agreed to issue a one year visa on humanitarian grounds. Duke's Kenan institute for ethics has written a much more detailed chronology of the baby Manji case.


• Jan Balaz. In this case, Jan Balaz and his wife used a gestational surrogate with an egg donor. Twins were born in January, 2008 and in December 2009 the children were still in India. As is typical, the birth certificate issued by the municipality had the names of the intended parents. Unfortunately, German law does not recognize surrogacy so the intended parents were unable to get German passports from their embassy. And although the Indian government had initially issued Indian passports for the babies (which itself is surprising), upon learning of the surrogacy situation it asked for them back. The parents then moved to the U.K, where it would be easier for them to get non-Indian citizenship for the children. It appears that travel documents are not sufficient to get a visa to enter the U.K. or Germany, so Balaz is petitioning to get Indian passports for the children. This would also effectively grant the children Indian citizenship. As a result, the intended parents (not the gestational surrogate) petitioned the Indian courts to get the Indian passports for their children issued/returned. In December 2009, the issue of granting Indian citizenship, travel documents and/or a German visa to the effectively stateless children was still winding its way through India’s courts, with the children still in India. The Indian Express has written several articles covering the Jan Balaz case, as have some other publications (1, 2, 3, 4, 5).

The main issue tested in these cases was not the legality of the surrogacy contract, but rather whether the babies born to Indian gestational surrogates could receive Indian passports. Because the intended parents could not immediately get citizenship from their home country, they (and not the surrogates) pursued other avenues to prevent their babies from being forever stateless.

Nevertheless, the outcome of these cases could indirectly affect which names are put on the birth certificate, with each country’s embassy potentially reacting to these changes differently. If and when India's IMCR legislation is passed, there may be more clarity on these issues from the Indian side. But probably not from the intended parent's home country side.

The key lesson in both of these cases is to make sure you contact your embassy or consulate to understand whether they will issue passports and/or citizenship for your children born through surrogacy. And do this before you start the surrogacy process. Each country's embassy has different rules, and every surrogacy situation is unique.

18 Dec Update: The Indian courts (so far) have agreed to issue "travel documents" for the Jan Balaz children, but not passports or Indian citizenship. The travel documents would presumably allow for their departure from India, but don't seem sufficient to get a Visa to enter Germany. As a result, the Indian government is pressing the German government for a "one time special Visa" to allow the babies into Germany. Additionally, the Indian court asked Balaz to file an undertaking, which includes: whether he would use the travel documents only for the purpose of taking the children to Germany, adoption must be carried out in Germany, and produce a document from a suitable agency from Germany certifying that the children were in good condition.

Understandably, the Indian courts are concerned with allowing a baby to leave India's jurisdiction without paternity. Setting a precedent to allow this could be abused in the future by child traffickers.

Several issues and the way they seem to currently fall out:

a) Can your baby be stateless? Yes, your baby is stateless until it is granted a passport and citizenship by a country. In many (most) cases, you can get a passport and citizenship from your home country through its local consulate or embassy in India. However, the above shows that in some cases it can be difficult. Make sure to check with your embassy or consulate regarding your particular situation in order to prevent your baby from becoming the next stateless child story.

b) Is the surrogacy contract valid? In both cases, the courts needed to acknowledge the surrogacy contract in order to view the intended parents rather than the gestational carrier as the legal parent. From this perspective, so far the courts have upheld the validity of the surrogacy contracts. This issue is sure to come up again.

c) Can babies born in India through surrogacy get Indian passports (if the intended parents are non-Indian)? In both cases, "travel documents", rather than a passport and the citizenship it would confer, were granted to the babies. The Indian government is, understandably, very reluctant to grant Indian passports to babies born through surrogacy.

d) Can a surrogate mother claim legal custody of a baby she delivers? Although the court was asked to address the issue of "whether the gestational carrier/surrogate mother will have any parental right to a child so born, even if there is a valid and legally enforceable agreement of surrogacy having contrary stipulations'', it did not issue a specific verdict. Neither of these two cases moved in the direction of giving the surrogate mother (who hasn't asked for it) legal custody of the children.

Update 2 - 14 March, 2010: The parents are now pursuing their last resort - adoption in India. The procedure seems to be stuck in bureaucracy as The Central Adoption Resources Agency, which is charged with handling adoptions, (CARA) does not grant adopted status to surrogate children. At a 25 Feb hearing, the Central Adoption Resource Agency indicated its willingness to waive its restrictions on surrogate children. The hearing was adjourned until March 16. The court asked the government to file an affidavit on its willingness to relax the adoption norms. The babies are still in India.

Getting the Indian Birth Certificate

I've previously written about getting our baby's exit Visa and also getting his passport. The birth certificate precedes these, and is the step that we found most interesting.

In Indian surrogacy births, the names of the genetic or intended parents are currently put on the Indian birth certificate. There has been some discussion about whether it is legal to put anything other than the gestational carrier's name on the birth certificate, particularly from one of the Mumbai IVF facilities that does not offer surrogacy. While I'm not a lawyer, several things seem certain. First, with the Baby Manji case, India's courts have tacitly acknowledged and accepted surrogacy. Second, the hospitals are putting the genetic/intended parents names on the birth certificates today, and have been for many years. That being said, India is also developing its own legislation on surrogacy, called the ICMR Guidelines. While these haven't been adopted yet (as of Nov 2009), as currently drafted they will explicitly allow the genetic/intended parents names to be put on the birth certificate. Until these are passed, current practice may be a bit of a gray area legally.

Of course, you need the baby's name for the birth certificate. Because our baby was born 5 weeks early, we hadn't selected a name yet. The passport is dependent on having a birth certificate. And the exit visa is dependent on having a passport. So, every days delay in getting the birth certificate, is a days delay in going home.

In the week we were deciding on a name, we also investigated how to get the birth certificate quickly. Getting the baby's birth certificate from the BMC in Mumbai is supposed to take 21 days. Except that it's India, so sometimes the 21 days is reputed to stretch longer - we heard numbers like six weeks. Unfortunately, there is no official "expedited" service. Since it's India, the expedited services are unofficial and seem to require paying "chai pani", which is literally translated as "tea money", but more realistically described as a facilitating payment or bribe.

The Birth Certificate is issued once the local municipality receives the registration of the baby's birth from the hospital. In Mumbai, birth certificates are issued by the the Municipal Corporation of Greater Mumbai, also known as the Brihanmumbai Municipal Corporation, or BMC. At Hirinandani, on the day the baby is born, you will be asked to fill out a form in a giant book. This is the form submitted to the BMC for the birth certificate. Fill it out in capital letters and clearly - anything that causes confusion will delay the birth certificate. It is useful to get or make a copy of the form in case the BMC makes a mistake and you need to get the birth certificate corrected.

At the hospital, I had a conversation with one of the Indian women who had recently given birth and explained that, in our situation, we really wanted to get the birth certificate more quickly than the documented 21 days. We talked about the Indian concept of "chai pani". I asked her if you can just directly ask someone "So, how much chai pani do I have to pay in order to get this accelerated?" She laughed and said this would be far too direct, offend the person you were speaking to, and likely ruin any chances to get the document accelerated. Apparently, the correct approach is to ask "is there anything we can do to make this go faster" and listen for an opening that would suggest a small payment would help. Without having dealt with the BMC specifically, but with knowledge of Indian culture, she thought a typical accelerating payment for a birth certificate would be 100 or 500 Rupees. Although she did agree that a foreigner might be asked for more.

Most intended parents don’t go to the BMC directly, but rather work through a facilitator. We spoke to the public affairs department at the Hirinandani hospital, who can also arrange for a speedier birth certificate. They unofficially work through a third party agent, who charges 5,000 Rupees. He doesn't guarantee a delivery date and the public affairs folks said they were just passing along his charges. When asked whether we could get a receipt, the public affairs officer said we could not. (It's quite unclear who actually receives various cuts of this payment).

Our other choice was to work with Dilip, who has worked with other surrogate couples to facilitate the birth certificate process. He quoted us 3,000 Rupees and also 1 week to get the birth certificate.

So, we found that our choices to get a birth certificate came down to:

1. Go through the public relations officer at the hospital. At Hirinandani, the public relations office was working with through a service that charged 5,000 Rupees (Aug 2009). No guarantee on how long it would take to get the birth certificate (maybe a week), but quicker than doing it manually.

2. Go through a service/person who knows the process. Many have used Dilip, who was recently (August) charging 3,000 Rupees.

3. Go to the local municipal office (in Mumbai, the BMC) and go through the process yourself, either waiting the 21 days (or longer) or attempting to pay “chai pani” oneself.

For both options 1 and 2, we were requested to write a letter to the BMC requesting an accelerated birth certificate. The hospital’s public relations office provided us the template to follow.

We chose option 2 - Dilip - since it was cheaper, the hospitals relationship with their service provider was "unofficial", and other folks we knew had also worked with Dilip. We gave him the letter on a Tuesday, saying we'd need the paperwork by the following Tuesday for our Wednesday meeting at the consulate. He said a week was "no problem" and thought he might have the birth certificates as early as Friday.

Being India, Dilip called the following Tuesday telling us the birth certificates weren't ready, and that we should go to the consulate Wednesday anyway, and drop them off later. This, of course, pretty much defeats the purpose of going to the consulate. In our case, we had already delayed our meeting with the consulate for another couple days, so late delivery of the birth certificates wasn't a problem. Dilip delivered the birth certificates the next day, which was eight days from our original request.

Our advice:
1) Make sure you write all information very clearly on the hospital birth registration form and on the letter to the BMC so that the birth certificate is not printed incorrectly. It's an even bigger bureaucratic hassle to get it fixed.
2) Make copies of the hospital registration form and the letter you send so that if there is an error, you can prove it wasn't yours.
3) Don't ever base your plans on when you expect to get the birth certificate. Our experience is that India has not yet learned to “under-promise and over-deliver”, rather you are more likely to get “over-promised and under-delivered”. Leave some buffer time, you may need it.

(A version of this post, retitled The Indian Birth Certificate, is included as part of the India Surrogacy Guide at GlobalDoctorOptions.com. Please leave comments if there is more to learn based on your experience.)

Selecting the surrogate

Because we'd like our new baby to have a sibling, so we're looking at another round of surrogacy. Having finally gone through a successful round, we're re-thinking the criteria for selecting a surrogate.

Many of the clinics, including Rotunda who we've worked with, will either email you surrogate profiles or, if you are in Mumbai, provide a book of profiles to look through. The information in the profiles themselves are rather limited and include age, religion, education, number of children and a photo.

Having gone through a round of this already, this is what we think of the different criteria one can consider and the ones that are important to us:

1) Successful pregnancies. To us, more is better. Both her own and also through surrogacy. Successful pregnancies show that the surrogate can carry a baby to term and has experience doing so.

2) No unsuccessful pregnancies or complications in pregnancies. During our pregnancy, our surrogate had gestational diabetes, high amniotic fluid levels, and low T4 levels (related to the thyroid). It is our understanding that she had not exhibited any of these signs in four previous pregnancies. So, on the one hand, successful previous pregnancies are a good sign. On the other hand, they don't guarantee a trouble free pregnancy. One possibility is to speak with the gynecologist that handled the surrogates previous pregnancies to understand if there were any complications with those pregnancies.

3) Vegetarian/diet. India has a high percentage of vegetarians. Our understanding is that this can lead to low iodine levels which may have caused the low T4 levels in our surrogate. While this can be overcome with vitamins, we may consider a non-vegetarian surrogate for our next round.

4) Education level. We have mixed feelings on this. On the one hand, the education level one attains is really based on how one did in the lottery of birth. If you're born in the U.S., you probably got an education. If you are a woman born in the Indian countryside, you may not have had the good fortune of access to formal education. From that perspective, education is irrelevant. On the other hand, a higher education level may impart more knowledge that would help ensure a safe and successful pregnancy. But trumping that is whether the surrogate has had past successful pregnancies. So, overall, education is a non-issue for us.

5) Previous transfers. Some of the surrogates have had multiple previous unsuccessful transfer attempts. It's valuable to ask how many unsuccessful transfer attempts a particular surrogate has had. Medical science doesn't understand everything, and certainly doesn't understand what does and doesn't cause a successful transfer.

6) Religion. Aside from any diet restrictions that religion imposes, religion is a non-issue for us.

7) Age. For us, age is secondary to successful pregnancies and limited unsuccessful transfers. However, age in the mid to late 20s are probably in the sweet spot.

8) Medical tests. Clearly, standard medical tests to check for any diseases should be undertaken. Most of the reputable clinics seem to do this.

9) Height/weight/etc. Some Indian women are more petite and some IPs may have genes that could result in bigger babies. While not a factor for us, some couples may want to pursue a "bigger" surrogate. It would seem that a big baby in a little woman could increase risks during delivery, much as the larger babies caused by gestational diabetes can increase risks during delivery.

10) Choice of surrogates. Even with the above, if the clinic has very limited choice, you're going to get what is available. We wanted to have some choice, or have a sense that the clinic did some filtering based on the criteria that was important to us.

11) Colostrum/Breast Milk. Colostrum is the initial milk produced for newborns and helps jump-start the baby's immune system. If you would like the surogate to express colostrum or breast milk for some period of time, consider including this as part of the selection process and also include it in the contract with the surrogate. Asking any time after the transfer leaves you at greater risk of the surrogate declining.

Of course, you have to trust that the clinic and surrogate are giving you accurate information. We worked with Rotunda, where we did observe a conversation about "no longer working with a surrogate that had complications in a transfer". From that, it would appear that Rotunda has a high enough supply of surrogate candidates that it can be selective about which it offers for intended parents to work with.

Also important is how the surrogates health and progress will be monitored during the pregnancy. Some of the clinics have housing for the surrogates (Rotunda is one), some find or rent housing, some provide a caretaker to periodically visit the surrogate during her pregnancy, and some do none of the above. For us, it was important that the surrogate have housing where her pregnancy could be monitored more frequently.

So, top issues for us are medical tests, history of previous pregnancies, history of previous transfers, diet and willingness to express colostrum.

[This post was slightly edited and added to the Surrogacy India Guide.]

Please add your criteria in the comment section.

To meet the surrogate?

Meeting the surrogate is an intensely personal choice which sometimes brings out the clash between the intended parents emotional need to be involved in the pregnancy and the surrogate’s (and often her family’s) financial want for more money. Remember, the surrogate’s aren’t doing this for emotional fulfilment, they’re doing it for the financial reward. It’s labor that they are getting paid for.

There are three phases at which one can choose to meet the surrogate:

• Before the surrogate is selected, as part of the surrogate selection process
• After the surrogate is carrying the child, but before she has delivered
• After the surrogate has delivered the baby

From an emotional perspective, the intended parents are often interested in understanding everything about their child, including the woman that will be carrying the child and everything about her and her family. Some areas of interest are related to the child, especially with regard to food and nutrition. Some are related to the family environment, especially with regard to safety. Others are more personal, with the surrogate even becoming like an aunt. If the clinic or agency you are working with is unproven or cannot reassure you about the surrogates living conditions, then there is more reason to consider meeting the surrogate and understanding her living conditions.

From a commercial perspective, the surrogate and her family are seeing an immense amount of money from this transaction, and are some will wonder if they can get more. After all, if the intended parents can afford the surrogacy costs surrogacy, can’t they provide the surrogate just a bit more money? A choice to make multiple international trips to visit the surrogate during the pregnancy is also an indication of wealth, and also an indication that maybe the surrogate can make more money.

Remember – Indian’s grow up in a culture with more bargaining and negotiation (and less fixed prices) than westerners are used to. In India, even overseas Indians who visit Mumbai get over-charged for taxi rides. And more similar to the Chinese culture than the American culture, a signed contract is more like the start of the negotiating process rather than the end of the negotiating process. So, you may get new requests during the surrogates pregnancy.

Cases we’ve seen and heard of include:

• The surrogate and family that were still calling the intended parents two years after the childs birth requesting money for things like their childrens school fees.
• The surrogate’s sister who called the intended parents in the hotel after the birth and requested an additional monetary payment for the surrogate.
• The surrogate and her husband who threatened to abort one of the twins in a multiple pregnancy unless they were compensated more money (it’s unclear if the original contract already provided more funds)

We did meet our surrogate in the hospital after she had given birth as she was being discharged. She seemed very nice. We ran into her another day in the hospital and invited her to visit the baby in our hospital room. Because we both had appointments, several hours passed before she was able to visit our room. By then her brother and brother's wife had joined her, and her brother asked for more money so that she could have her own room (to build and extra room for their house). He also asked for more money for her post-pregnancy medication, although Rotunda pays for this for six weeks and the doctor told us she wouldn't need anything beyond routine vitamins. Admitedly, our surrogate seemed a bit embarassed about what her brother was doing, but in the more male dominated society, she may not have had much choice. We were considering giving her some extra money or a piece of jewelry, but it's always difficult to know if it would actually get delivered to her, so we chose not to. We were also considering seeing her again to take some pictures, let her see the baby again, and give her a piece of jewelry. But because of her brother's request, we were unsure if she would come alone and what other requests she might make. So we chose not to meet her again.

It is/was a commercial arrangement, and both parties fulfilled their obligations.

My recommendations:

• If you want to meet the surrogate, do so after the baby is born and in your hands. This is the point at which the surrogate and her family have no negotiating leverage. While they still have the baby, they have negotiating leverage, should they choose to use it.
• Do not get involved in any negotiations. Refer all requests to your agency and/or doctor.
• Do not give the surrogate your contact information. If she and her family can’t contact you, she can’t make additional requests or demands.
• Don’t appear to be rich. This will be difficult, because as a westerner, and by being able to pay for the surrogacy process, you already appear richer than anyone the surrogate may know. But if you invite the surrogate and her family to an expensive restaurant or make multiple plane trips to visit her during her pregnancy, you’ll appear even more rich. Which makes you a more inviting target.
• If you do plan on meeting with your surrogate, coordinate closely with your clinic to understand what they might add to the above comments.

[This post was slightly edited and then also added to the Surrogacy India Guide.]
If you have a story, or know a story, please post it or link to it in the comments section.

Visiting the FRRO (to get the exit Visa)

The visit to the FRRO to get the exit Visa was reasonably straight forward since we did bring all the necessary paperwork. We brought Asha with us again since she knows where the FRRO is, where everything is in the offices, and even knew some options for what to do while waiting for the FRRO to finish paperwork (we chose to go to the Taj Majal Hotel and have a leisurely lunch).
There are several steps in the process at the FRRO. The FRRO opens at 10:00 and we got there at 10:15. Surprisingly, the queue was very short at the counter. The early birds had already been processed, and the late crowd hadn’t arrived. Many people did arrive after us.

When you are at the FRRO building, you go up to the third floor and register right outside the elevator. They’ll ask to see some of your paperwork, but not all of it, and then give you a chip. The chip has a counter number on it. That’s the person who will ultimately look at all your paperwork.

After you’ve gotten your chip, you need to fill out a Visa application on one of the terminals. So, go wait in line for an empty terminal. The automated application seems more geared toward Visa Extensions rather than a Visa for a newborn. As a result, I had to ask one of the ladies working there what to put into several of the blanks. She was helpful with this. Good news, the air conditioners were working, so it was quite comfortable. In the meantime, Asha (who is great with babies and trained as a nurse - you can reach her at ashamj70 at gmail dot com; +91 97657 45028) had changed the baby.

Once we had that printed out, we waited for our chip number to be called. It wasn’t too long – maybe 15 or 20 minutes. We then pulled out all paperwork requested by the lady.

Word of advice – bring copies of everything. There is a copier and a photographer, but waiting in line for each of them will further lengthen your stay. What we need to provide:

* Letter from consulate (they kept the original since it was addressed to them)
* Surrogacy Agreement
* Ticket (or print out of email confirmation) showing we were departing (for us the next day)
* Passport for both parents and Visa for both parents (so copy both passport page and visa pages)
* Copy of baby’s passport
* Letter from Clinic
* Letter from Hospital
* Two 2x2 photos of the baby (I tried to give them the 1x1 photos I thought they required, but they asked if I had larger photos and I gave them two 2x2 photos; don’t know if 1x1 photos would have worked)

The copier was broken, so we had to run down the street to make some copies. A half hour later the copy was miraculously fixed. Maybe it was just out of paper. Copies were 1 Rupee each. But the copier was slow, and there were frequently people waiting in line.

We’d heard that one couple needed to bring the doctor’s medical registration from their clinic, but we were not asked for that.

We got through with our counter lady and requisite copies by about 11:30. She asked us to come back at 3:00 PM to pick up the exit Visa. Asha asked if there was a way we could get it earlier, and the lady said no, which was fine because we didn't really need it earlier. We did not pay any chai pani to accelerate the process, and weren't asked for any. This one was 100% above board (the only one that isn't is the birth certificate).

Since we weren’t far from the Taj Hotel, we went there for Lunch. About US$18 for the buffet lunch in the cafe, which was quite good.

We came back about 3:00 PM and paid and picked up the Visa at the same time. The wait was about 30 minutes to pick up the Visa.

We were departing on a flight the following day. We got the Visa the same day, but the exit Visa was good for one day – the following day. If we had needed to change our flight arrangements, we would have needed to apply for another exit Visa.

Cost of the exit visa was US$80 in Rupees – about 4100 Rupees.

Our international flight was out of Mumbai. We’ve heard that if you are taking a domestic flight and flying out of Delhi, then you need to go to the Delhi FRRO, for example. Do check and confirm.

Visiting the U.S. Consulate

Being the first road trip with the baby, preparation took longer than we expected. I woke up at 6:00 to feed the baby. Then packed – carseat, diapers, formula, water, bottles, wipes, change of clothes, extra swaddling cloth and changing mat (towel).

We had also called ahead to schedule the appointment (and rescheduled it multiple times). The consulate tries not to schedule more than one passport/CRBA application per day, and they said they're currently doing about three surrogate related applications per week. When we made our first call, they had openings within about a week. Although you schedule the appointment, you still pull a number when you arrive.

We had hired Asha to be a day nanny on this trip – she’s both a trained nurse and has helped other surrogate couples through the consulate and FRRO – and she was great. Nice to have someone that can efficiently take care of the baby, especially when he pees in the middle of a change in the consulate as you're trying trying to answer their questions about your paperwork. (Asha can be reached at ashamj70 at gmail dot com or +91 97657 45028). If you use another day nanny, make sure she brings her passport in order to get into the Consulate.

We got to the Consulate at 9:30 AM, pulled a number, and were pleasantly surprised to see that we were number 37 and they were already on 35. 9:30 put us at the tail end of the Monday morning rush since the consulate opens at 9:00. By about 10:00 we were about the only ones there. (I never did figure out if our appointment gives us the ability to cut in front of everyone - at some other embassy's and consulates it does, so it would be worth asking).

Passing through security to get into the consulate was a bit like airport security. You can’t bring any electronics in (phones, computers, cameras) – they even asked me to leave an extra SIM card I had in the outside lockers. You can bring baby products and paperwork in. Any kind of liquid is dicey – we got the thermos with water in (maybe they didn’t notice it buried in the baby bag), but didn’t get the disinfectant hand cleaner in. Past security there is a water cooler.

First task was to feed the baby, since by the time we got into the consulate it was feeding time again. Then waited a few minutes for our number to come up.

We had pre filled out the Consular Report of Birth Abroad (CRBA) and Passport applications (including 2 2x2 passport photos) and filled out an SSN application while we were there. We are both U.S. citizens and did gestational surrogacy with our own genetic material. Based on that we didn’t have to prove much presence (I think 1 day) in the U.S. For this situation, the supporting paperwork that the consulate asked for was:

* Passports
* Original Surrogacy contract and 2 copies (bringing the copies helped, they gave us the original back)
* Birth Certificate
* Letter from Hospital (Hirinandani for us)
* Letter from clinic (Rotunda for us)
* Marriage License (We brought an original which they gave back)
* Records from clinic (we didn’t have medical records themselves, but showed print outs of some of the test results and updates that had been forwarded to us during the process)

A note: do read the letter you get from the clinic. The first draft of the letter we received obviously came from a template because it had many errors including:

* the wrong retreival date,
* indicated we used an egg donor,
* said a female baby was delivered, and
* said the baby was born healthy and fine although he spent 15 days in the NICU for respiratory distress syndrome

Any of these errors could have raised eyebrows at the Consulate and could possibly put us on the path of requiring a DNA test. So we requested a new copy of the letter. Good thing it wasn't time critical and we weren't planning to visit the Consulate that day.

In our situation (married, both U.S. citizens, baby genetically both of ours), we did not have to do a separate affidavit of presence. We’ve traveled overseas quite a bit, so in the “traveled overseas box” of the CRBA, it was okay to just put “various”. This was because we each only had to show 1 day presence in the U.S.

Coordinating with the Mumbai consulate (it is Rachel right now) to know what paperwork was required in our situation certainly helped speed the process, and arriving with the paperwork filled out, having baby photos when we arrived, and having all of the above documents in a single pile to hand over, helped speed the process as well.

We then did a quick oath affirming that the statements and documentation we provided were accurate.

After paying $150 by credit card, we left the consulate by about 11:30. Because our baby had spent 16 days in the NICU, the consulate was kind enough to grant us an emergency Visa, which was available for pickup the next day/morning (on the way to the FRRO).

The consulate says they currently look at the “body of evidence” to determine whether or not a DNA test is required. In our situation, a DNA test was not required, which saved us time (a week for the test to turn around) and money (close to US$1,000). (Note that for U.S. citizens, Rotunda has DNA test kits from Universal Genetics which you can use if required. This saves the time and cost of having a test kit mailed to India, if you need one.)

Rachel, who works at the consulate and who I emailed and spoke on the phone with many times, was extremely helpful. Definitely gets an A+ for customer service. It is because of frequent emails and correspondence with her and her team that we were fully prepared going into the consulate and that the process went smoothly. In this case, it was a pleasure to deal with one of our government organizations.

When I had spoken to Rachel earlier, she did recommend scheduling the DNA test and the visit for passport/CRBA documents on separate days in situations where both are required. We decided to do the passport visit first, which then helped determine or confirm whether the DNA test was required.

Released from the NICU

After 15 days in the NICU at Hiranandani, our baby was released. He went through a pretty standard progression for lung problems, starting with a ventilator/respirator, moving to Continuous Postive Air Pressure (CPAP), and then to a hood, and finally off the hood.

While in the NICU, there were usually 4 to 7 other babies there. The doctors and nurses definitely have experience dealing with pre-term babies. I've never been in any other NICUs anywhere, so I can’t comment on the equipment or processes.

During that time he had two pediatricians – Dr. Sanjeev Ahuja and Dr. Bijal Shrivastava. Both were very good. Although busy and rushed, they both answered our frequent questions and helped manage our anxieties. We shared progress updates with our friends, including home pediatrician and an obstetrics nurse, neither of whom suggested anything different than what the doctors were doing.

One comment – the visiting hours for the NICU at Hirinandani are limited. Officially, visitors are allowed from 5:00 pm to 7:00 pm. Mothers are allowed to visit more often, usually because they are nursing. On the one hand, this restriction limits interaction with your newborn. On the other hand, it does keep germs out of an area with infants that need every chance they can get.

And the proof is in our now healthy baby. When we visited the U.S. consulate, they said he certainly didn’t look like he’d spent 15 days in the NICU and that he was also the only baby they’d seen with his eyes open – he was looking at them, eyes wide open, while we were there.

Baby arrives 5 weeks early...the rushed trip to India

Baby decided to arrive 5 weeks early. We got a call at 11:00 PM congratulating us on a healthy baby boy, and I flew at 7:00 AM the next morning. My first night of no sleep in a very, very long time. I’m sure many more to come. Spent most of the night packing and making sure the place would be okay while we’re gone (it will). My wife and I were in different cities, so we traveled separately and I arrived first.

The baby was in the NICU and on a respiratory, which nobody mentioned to us before I physically talked to the pediatrician. Because the baby was born five weeks early, it’s lungs were underdeveloped. The doctor calls it Hyaline Membrane Disease which is the same as Respiratory Distress Syndrome.

Many things to relate, but in largely chronological order…

After landing, I call Dr. Kadam who basically says to goto the hospital and get a room. Which is about what I expected. Nothing about the baby being in NICU (which I didn’t know yet).

On this trip, I didn’t have a driver lined up at the airport. Good news – there is a counter where you prepay for a taxi, the very last thing you do before you exit the airport - about 2 yards from the airport exit (oh, and there are about 6 currency exchange counters here if you need them, although ATMs are pretty widespread outside as well). They quoted me 230 Rupees for a ride to Hiranandani in an air conditioned taxi, which seemed reasonable compared to all my other taxi rides. I then went outside and had to find the taxi parked among a large throng. Some guy helped me find the taxi, I gave him a 30 Rupee tip, he asked for dollars. I left it at 30 Rupees.

On the way to Hiranandani, the taxi driver stops for gas. This doesn’t happen in very many countries. But, as I looked at the queue of taxis waiting for gas, several others had passengers. So I guess it’s not uncommon either. More interesting, my taxi used CNG (compressed natural gas), not petrol. When I was taking a picture of the CNG filling process, my limited English speaking taxi driver gestured me not too use the phone and made an explosion sound and hand gesture. I then saw a sign that said to turn off your mobile phones while filling (in addition to not smoking). Overall, it was more like filling up your propane tank (for your bbq grill) than filling up your gas tank. This smallish taxi took 170 Rupees worth of CNG. I have no idea how far that would get him. And the line of cars waiting to get a fill was long. We probably waited 15 minutes.

Of course the traffic was bad. And, the taxi driver didn’t know where the hospital was once we got to Powai. I realized this when he asked me if he should go straight or turn right. (This actually happens frequently in India, although usually the taxi or rickshaw driver stops and asks someone.) That’s when I started paying attention. Fortunately, there were enough signs to basically find the hospital, along with one quick stop asking a friendly person on the sidewalk to confirm we were on track. We were on the right track the whole time. I never did figure out if the taxi driver could read the signs or not.

The taxi driver said “tips” when we arrived. Since aside from the detour he’d done a good job, I gave him a tip of about 150 Rupees. I mean, how can he be living on a 1 hour trip that cost about US$5. With the tip, it still cost less than having someone pick you up at the airport. Although the taxi was probably 20 years old, so less comfortable (but more local) than arranged cars you’ll get picked up in.

The hospital is a hospital and not a hotel. They haven’t caught on to the Thai medical tourism thing. So, not surprisingly, there’s really no concierge to help with your luggage. They do a security check of your baggage before you go inside, although it’s a bit cursory, and you’re not going through a metal detector (like you would at the Marriot).

Good news, we got a room at the hospital. I had no idea if this would be easy or not. I think we got lucky, someone was just checking out of a suitable room. We got the Single plus room. Turns out to be a hospital bed and meager couch (that’s the second bed) for about 4500 Rupees a night. And it looks exactly like a hospital room. Two can sleep in the room, although one is sleeping on the couch. Filling out the paperwork to get a room was about 45 minutes. Had to prepay a deposit of 25,000 Rupees for the room. The room wouldn’t be ready for an hour, so they asked me to wait. I asked where I could leave my luggage, and there really wasn’t any place. I ended up leaving it under the information person’s counter.

Neesha, who’s in charge of “public relations”, also came out and said hi. The best I can figure, “public relations” means “customer service”. She said the hospital could help with the birth certificate. Seems there’s a new guy in charge at the municipality, and a “rushed” birth certificate now takes around 10 days, rather than the previous 3 days. Well, that will make for a longer stay. I wanted to learn more about the best (fastest) way to get birth certificates. She said she’d stop by my room later in the day to discuss further. More on that later.

So, as I walk by the nurses station they amazingly know who I am because they say the surrogates name as I walk by. One of the nurses shows me the room and gives me the disinfectant to use before holding the baby. I’m pretty sure I asked if they were going to bring the baby, but I’m in the room and waiting for the baby for a half hour when I go out and ask the nurses when they’ll be bringing the baby. They have an attendant walk me down to the NICU. The nurses (sisters) there say I can’t see the baby until I’ve talked to the pediatrician. I’m then walked over to the pediatrician (Dr. Bijal, is nice but is at times rushed like everyone else) who tells me the baby is in the NICU (which I’d sort of figured out since they took me to the NICU), had excessive grunting (a form of breathing difficulty when born) and is on a respirator to make sure he’s getting enough oxygen. I ask a few questions and wrote down the big words for later Internet research.

Dr. Bijal asked where we were staying and I said here at the hospital. She seemed pleasantly surprised, which told me not everyone does, and that she thought it was a good idea (at least for us).

Then I go back to the NICU, wash my hands, put on a gown, put on a mask, put on a hair net, put on sterile slippers, disinfect my hands again, and finally go in to see the baby.

Poor baby. Tubes going in and out, mostly for food and air. I look at all the machines. Trying to decipher the numbers. Heart beat around 170, a bit high. Oxygen absorption at 98%, seems good. Breathing rate erratic jumping between 50 and 90, not so good. Some kind of glucose at 9.5 (mls per hour?). And the respirator set at 36% Oxygen. Two other babies. I feel sad for the other baby’s parents as well.

I then head off to report to the family. I’d learned that there are publicly (free) computers on the 1st floor in the health check area. So, I can gmail folks. It turns out the machines are locked down so I can’t get photos/video uploaded through the USB port or any other method that I can think of. Nor can I connect my laptop straight into their LAN. The folks were nice enough to call one of the IT guys, who came down after 20 minutes, logged in as an admin, bluetoothed the files over, and made them available for me. Now that was good service. Although I don’t think I can do that every day, or even ever again. More on email/Internet access later.

Also worked on getting a local SIM card for my unlocked phone. Good news, you can get SIM cards. Bad news – you seem to need ID and a sponsor to get one. So, I got an Aircel SIM card. Probably the wrong thing to do as it turns out because they’re still new in Mumbai, and the hospital doesn’t have top-up cards. Oh, and the sales guy’s friend is now my local sponsor after providing him a tip ($5). During the process we also had to leave to get a photo, which was also required for the SIM card. It took about 24 hours to get activated.

With the room, you get meals. Choices are India, Chinese and Continental/Western. And, they’re not bad. We went for the Indian food – it’s actually pretty good. I’m sure the locals find it much too bland – it is not spicy. Western breakfast had omlette, bread, corn flakes and papaya. Indian lunch was soup (spinach, I think – a bit bland which means it was probably healthy), chicken (not masala, but something like that), dhall, some other kind of naan (I get them confused), yogurt, a sweet cream-of-wheat like desert, and an Indian vegetable dish. Indian dinner was soup (don’t remember which kind) and three dishes – a vegetable, a dhall (lentils) and a meat (chicken) along with desert, fruit cup and naans. You’re not in the U.S., so if you need Western sized servings, you’ll need more food. If you’re fine with normal sized servings, you’ll be fine. One set of meals comes with the room (breakfast, lunch, dinner). You can special order a second set which seems to cost about 180 Rupees per day. Quite a deal.

Talked to the Dr. Bajil in the evening, who seemed to indicate that the baby wasn’t improving as fast as she’d like, but that the lung situation was relatively mild and we didn’t need to rush anything. This seemed to confirm some of the Internet research which seemed to indicate it often takes a few days to get a baby of the respirator.

Being exhausted, I fell asleep early and woke up early.

Well, the bathroom still didn’t have the towel I’d asked about the night before. It did have something the size of a dish towel, which was enough. They’d also given me soap, tooth brush and shampoo. Kind of hotel-like in that regard.

I decided to go see the baby at 7:30 in the morning. That’s when I learned there are visiting hours, and they’re 5:00 PM to 7:00 PM. Which I guess makes sense. But they also said mothers could visit outside those hours, but fathers could not. Disappointing. But, with some sweet words, they were kind enough to let me in (I won’t be able to do that again either). I tried to be helpful and hold our baby boy while he was trying to pull the tubes out of his mouth, marveling at what was before me. Our baby boy.

I had my questions for Neesha and called her about nine. She said she’d stop by my room in a half hour. Two hours later she appeared. I am not currently cut out for the India sense of time and wasn’t so happy. She knows Prashar, who is the other guy that can do birth certificates, and says it will take the same amount of time either way. Among other things, I also asked her about the wifi that the brochure I got at check-in talks about. I’d been trying to connect, but wasn’t working on any of my three wifi enabled devices. She called IT. Their line was busy so she gave me their number and asked me to call them back. I call them in a few minutes, and they say they’ll be down in 15 minutes. After 45 minutes of no-show, I start calling. Busy and no answer. At an hour and fifteen minutes I get through to them again, and they they’re waiting for the outsourced wifi company to call them back before doing anything (such as visiting my room as they said they would). I told them I’d been waiting for them and they told me they were sorry.

Then a mystery visit by the nurses. “Please go down to the NICU now”. Since I’ve been in the room for about 4 hours, they probably could have called me directly. They wanted me to sign paperwork to give consent for an umbilical catheter. Like most places in the world, the paperwork I sign says that I’ve been fully briefed on what they’re going to do. I hadn’t, so I asked several questions. They were satisfactory enough, so I signed. Then the NICU folks told me I had to go settle the bill.

Since billing is largely by pre-payment, I had to get caught up on payments. So, more money for the Surrogate’s stay (probably at US$4,000 for her four stays total, including delivery), but haven’t paid anything for the baby’s stay yet.

And that’s where we are so far…

Communications during the pregnancy

Although with several bumps, our surrogate’s pregnancy seems to be progressing well. It is difficult being so far away from our baby in many ways. The most anxiety-provoking is trying to understand the results of each pregnancy check-up and steps that will be taken to mitigate any irregularities identified.

Doctors in the U.S. have figured out and resigned themselves to the fact that people do research on the Internet and come in informed (sometimes misinformed, but most doctors say overall much more informed) and ask many questions. In the late '90s when patients first started visiting doctors with their Internet research, some doctors found it helpful (patients were more knowledgeable) and some found it annoying (the patients were more questioning, questioning their knowledge and authority). With lower Internet penetration, India is still in the earlier phases of this transition and some of the doctors do lean toward finding it more annoying.

Surrogacy complicates the situation. If it’s your own pregnancy, you talk to the doctor when you have your check-up. With surrogacy, the doctor has to communicate with both the surrogate and the remotely located intended parents. We are emailed reports of the check-ups, often with very short updates. More often than not, we have to chase to receive these in a timely manner. And chase to see whether the surrogate went to her scheduled appointment (monsoons sometimes cause cancellations, kind of like a snow day). And chase to understand the results of the reports. The level of initiative in proactively providing intended parents updates and interpretations of the reports is just at the lower threshold of acceptable. The emails we receive are typically short. This, of course, means we need to review and interpret the reports ourselves.

In reviewing the reports, it seems that our pregnancy is having it’s share of irregularities, but nothing terribly severe. What is frustrating is that we seem to discover these issues, rather than being told about them. Some of the irregularities include:

Amniotic fluid levels. An early June test indicated an amniotic fluid level of 20 and had “mildly high” written next to it. The amniotic fluid is the nourishing and protecting liquid that surrounds the unborn baby during pregnancy. Since the doctors didn’t mention anything to us, we asked them about this. As a result of our asking, the surrogate was scheduled for a followup check. No asking...probably no follow-up check. Interestingly, some Internet research shows that 25 is actually the cut-off for mildly high amniotic fluid. So, 20 probably is okay. It seems that the cause of high AFI levels is usually unknown, although since the baby swallows amniotic fluid, high levels can be indicative of swallowing or digestive problems.

Gestational diabetes. Because of the high amniotic fluid, we had the extra doctor visit. During this visit in mid-June, gestational diabetes was discovered, which resulted in the visit becoming a 2 week hospital stay. This basically means there is high blood glucose (sugar) in the surrogate’s blood. It’s apparently getting more common (3 to 10% of pregnancies according to Wikipedia) for women to have gestational diabetes which puts the baby at increased risk of being large for its gestational age (which can cause delivery complications), having low blood sugar and even jaundice. We seem to have caught this reasonably early and our surrogate was immediately put on insulin.

T4. At the same time we got the bill for the above stay, we got more reports and tests that were done during the stay. One late June report showed low T4 levels. HELLO! Was anyone going to tell us? The thyroid creates T3 (serum tri-iodothyronine), T4 (thyroxine) and TSH (thyroid stimulating hormone). T3 is a reservoir for T4, so my non-medical assessment is that T3 may be more important. But the available literature seems a bit fuzzy. T3/T4 seems important for brain development. By reading the invoice, we see that our surrogate was given/prescribed Thyronorm 25mcg tablets, which are Thyroxine. So, it seems that action is being taken to address the low T4 levels. Good on the action side, bad on the communication side.

Our mid-July updates showed blood sugar within normal ranges and T3/T4/TSH levels in normal ranges also (although T4 is still at the low end of normal). These were the first follow-up tests we received after the late June diabetes and T4 discoveries. The email content was:

===
Hello.
Please find attached the blood reports of [surrogate name] for your reference.
Please note that these have already been checked by Dr. [doctor name].
Regards
===

Yup, no mention of whether levels were high, low, or whether they need to continue to be monitored. Follow-up phone calls are mandatory.

Our early August updates show AFI levels still mildly high at 25. Research seems to indicate there really isn’t much one can do.

Well, we’re focusing on identifying everything we need to bring with us to India in order to bring our baby home. Mid September is the due date! And hoping none of the above issues cause major complications...

Amnio test says everything is fine...

We got the amniocentesis results back and everything looks fine (99% chance of no genetic problems). The test were done several weeks ago (about week 15 of the pregnancy) and we got verbal results pretty quickly. But it did take several follow-ups and several weeks to get a scanned version of the results. With its success, Rotunda is definitely getting busier...

We shared the results with our local doctor, and she also said everything looks fine.

The amnio is a diagnostic test. It actually checks for chromosomal abnormalities. The triple marker test is a diagnostic test. It looks for indicators of potential abnormalities, without actually checking for abnormalities. Interestingly, in this case, they're both actually giving the same results - 1 in 100 chance of genetic problems. In one case it's considered high risk (the triple marker test) and in the other its considered a good outcome (the amnio test). Need to figure out who decides these things.

So, back to thinking about what we're going to pack for the trip in September, and what paperwork we need to smooth and ease the process...

First Trimester Combined Screening results say we are High Risk

Screening test and Diagnostic tests. You'll receive lots of screening and testing results during the surrogacy process, pretty much the same as any other pregnancy. Screening tests are the first ones done, and they're the ones that scare you. Diagnostic tests are done later, and these give more accurate results. The main thing we were worried about was Downs Syndrome which is indicated by an increased calculated risk of trisomy 21. If you read the books, these screenings more often rasie unwarranted alarms (false positives) rather than quell fears. And they did for us too. Here's why.

The Double Marker screening was done around week 11 of our surrogate's pregnancy. It checked the Free Beta HCG, Serum by CLIA and PAPPA by CLIA. I don't know what that means either. But they take figures from these tests, the biological wife's age, and an ultrasound measurement of the nuchal translucency and run it through some predictive analytical software. Because it is predictive and not diagnostic, this is called a screening.

What I do know is that the email and scanned results came back showing the pregnancy was high risk, that "the calculated risk for Trisomy 21 is above the cut off which represents an increased risk." This was enough for my wife to start crying and pass me the paperwork.

This is what you have to realize: any risk calculated at higher than 1 in 250 is considered an increased risk. For us, the calculation was 1 in 107, which by that definition is an increased risk. But what that really means is that 1 in 107 births like ours will have Downs syndrome, which is less than 1 percent. That's why this test raises so many false fears.

More interesting is that if you only look at my wife's age, all the charts show a risk of 1 in 50. So, although the risk is "high" by the arbitrary definition of more than 1 in 250, when looking at not just her age, but also the additional medical information above, the odds had actually moved in our favor from 1 in 50 to 1 in 107. That was good news. And my wife was relieved.

The Amniocentesis test is the diagnostic test. Those provide more definitive results. I'll post on those separately.

Surrogacy success!!!

Yes, our Christmas trip to Rotunda has been successful. Our baby is reaching 16 weeks and all tests indicate a healthy pregnancy in our surrogate mother! We didn't want to write anything earlier for fear of jinxing this good luck after many, many years of trying to have a baby.

What we've learned over the past several months:
1) First, there are a number of "screening" and "diagnostic" tests done during a pregnancy. Screening tests don't prove anything, they are just "indicators". Diagnostic tests prove whether a problem exists or not. If you are over 40, the odds of downs syndrome exceed 1% and go up pretty quickly with age. The screening tests all use age (the egg donors) as one of several factors to determine if the pregnancy is high risk. But, high risk is defined as 1 in 250. So, age, by itself, moves a pregnancy into high risk. So, when you get your screening results back and they say your pregnancy is "high risk", read the fine print. Ours said that the risk was 1 in 100, which is actually better than the 1 in 50 rate you get based on our age. So, although the screening test said the pregnancy was high risk, the risk was getting lower when additional factors beyond age were added. Although high risk, the odds were moving in our favor. The good news is that the amniocentesis test, a diagnostic test done later in the pregnancy, just came back okay.

2) They won't tell us the sex of the baby until it is born. Because of problems with infanticide in India, doctors are legally prohibited from divulging the baby's sex until it is born. This is true for all births, including surrogate births. So, we're going old school and won't know the sex of the baby until it is born.

3) It does seem that it's possible to breast feed the baby even if you didn't carry it. We're checking into and learning more about "induced lactation"...

If everything continues well, we'll be off to India in September. Now to research the passport and travel issues, and dig deeper into the baby books.

We've also been in touch with two of the couples that we've met on our trips. One is also pregnant, and the other is not pregnant after two tries.