NEW DELHI, India — The revelation that a convicted sex offender from Israel succeeded years ago in hiring a surrogate mother and taking a baby girl home from India sent shock waves through India's booming, controversial surrogacy industry this week.
But there is little that India or Israel can do at this point to influence the fate of the little girl, who is now 4 years old.
“The child is not going to be removed from the home now because according to the law in Israel if there's no proof that the parent is severely harming the child [the authorities] cannot take the child out of the home,” Elizabeth Levy, director of international relations at the Jerusalem-based National Council for the Child (NCC), told GlobalPost.
After receiving an anonymous tip via email, the NCC confirmed through its own investigation that the man caring for the young girl was a convicted sex offender, Levy said. He had spent 18 months in jail previously for sexually abusing young children under his supervision, the Jewish Chronicle reported.
The nonprofit group said they informed the police, Israeli social services and the girl's school of their findings. Israeli authorities placed the man under observation and compelled him to undergo psychological counseling, but no other legal action can be taken — partly because authorities believe the man is the girl's biological father.
Further, the NCC investigation hasn’t turned up any evidence of current abuse. “There's no proof that he's harming the child. The child has not complained about any misconduct on the part of her father,” Levy said in a telephone interview with GlobalPost.
For many Indians, that's hard to accept. But experts say there aren't legal grounds for Indian authorities to take action, either. Neither are there rules in place to stop another convicted pedophile from hiring an Indian surrogate mother tomorrow — an oversight that has prompted calls for the speedy passage of a bill to regulate the industry that has been pending since 2008.
The surrogacy trade in India started in 2002, when the government declared the practice legal, and has experienced a boom over the past five years or so. Though official numbers aren't available, rough estimates suggest that the surrogacy business is already worth more than $350 million a year, according to a recent report by the New Delhi-based Sama Resource Group for Women and Health. Meanwhile, industry estimates suggest that some 50,000 people visit India annually seeking surrogate mothers, resulting in around 2,000 births per year — and providing livelihoods, albeit controversially, to thousands of poor, unskilled women.
As a move to bar gay men from India's surrogacy business showed earlier this year, regulating the industry is morally complex. New restrictions and new levels of bureaucratic oversight — whether well-meaning or founded in ignorance — can be very bad for business. After the rule against gay men was instituted, an industry expert told GlobalPost he expected it would mean losing a third to half of India's present customers to places like Thailand.
But, while increased regulation may limit business, the cost of ignoring potential problems when determining fit parents can be extraordinarily high — as the case in Israel reveals.
“The biggest problem is that in our country [India] there is no written law regarding surrogacy. Surrogacy is seen as a private contract between two willing parties,” said Rekha Aggarwal, a Supreme Court lawyer who specializes in adoption cases.
That means that there are no background checks required for parents who wish to hire an Indian surrogate to bear a child for them. And as long as these clients can prove that they are the biological parent of the baby, the more stringent rules governing adoptions don't come into play. Indeed, in many, if not most, cases, the biological parent soon establishes that the baby is a foreign citizen.
Currently, the NCC has not been able to learn anything about the surrogate mother employed by the convicted sex offender in Israel, or the agency he might have used in India, Levy said. Without more details, Indian rights workers are stumped about how to proceed.
“We tried to get more information about which part of the country the child came from,” said Bharti Ali, an activist with the New Delhi-based Haq Center for Child Rights. “They [the Israelis] don't have much information, so we're struggling as a result.”
In both countries, the case has prompted calls for stricter regulations.
In India, child rights advocates have stressed that the government should move rapidly to pass the Assisted Reproductive Technology Bill, pending since 2008, and to institute background checks for clients seeking surrogacy like the ones used to screen adoptive parents.
Similarly, in Israel, the NCC wrote to the Ministry of Health demanding effective regulations for parents who choose to employ surrogates outside the country.
“On one hand, legislation will facilitate the process for good and worthy citizens who have chosen (often with no other choice) to become parents through surrogacy abroad and find themselves with a child born abroad with no regulated status and without rights,” the letter argued.
“On the other hand, the legal regulation of foreign surrogacy will allow screening of those requesting to go this route in order to avoid situations that are often discussed such as having children for the purpose of trafficking or abuse.”
For now, though, the 4-year-old girl is caught between two countries, in the arms of a potentially dangerous father.
“This child is like nobody's child,” said Aggarwal. “The Indian government can't touch that baby, because she doesn't have Indian citizenship. She's nobody's baby now, as far as the government is concerned.”