Giving birth to a child is one of the nature’s good ones. Now who would have thought that one day humans might be able to commercialize it as well?
Traditional Surrogacy (the straight method) is a term wherein a female agrees to carry a child in her womb. Such that she plays a role of surrogate mother to that fetus for next nine months. The word surrogate literally means “substitute” or “replacement”. A surrogate mother is therefore a substitute mother. Thus, Surrogacy is an arrangement in which a woman carries and delivers a child for another couple or person. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is unrelated to the child. The surrogate mother may be also called the gestational carrier. This is further of two types: Altuistic surrogacy and Commercial surrogacy on the basis of monetary value.
Altruistic surrogacy is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses). However, Commercial surrogacy consists of certain amount of financial reward and hence is the most popular of both forms. Such that in was in Manji’s case in 2002 that Supreme Court of India held that commercial surrogacy was legal in India. The reason for its popularity is due to firstly, high international demand and secondly, ready availability of poor surrogates. Hence, Commercial surrogacy is sometimes also referred to by the emotionally charged and potentially offensive terms like “wombs for rent”, “outsourced pregnancies” or “baby farms”.
The roots of surrogacy arose as a result of Babylonian law and custom which allowed this practice wherein an infertile woman could use the practice to avoid the divorce which would otherwise be inevitable. This involved another woman having bear a child for a couple to raise, usually with the male half of the couple as the genetic father. Such that this practice became kind of a revolution in this modern era of globalization especially for developing countries like India only difference being that now the same is done in exchange of money.
Judging by Indian history, the Indian economy has come quite far ever since independence. This is quite evident from current GDP or sex ratio or education rate. However, they all are merely figures and certainly not enough. The actual reality lies beneath her veil and it is safe to say that it is not a pretty picture. It is the combination of poverty, illiteracy and the lack of power with women over their own life which is proving to be a fatal combination. For a country wherein the literacy rate is depleting at fast pace and female fetuses are being killed in wombs or sold at low rates, laws on surrogacy are need of the hour.
There are number of implications that arise as a result of surrogacy. It is all together a complicated process which requires a set of concrete laws that need to govern this arrangement. Surrogacy over adoption is mostly is opted by childless couples because they want to have some kind of genetic attachment to their child to be born. This is often termed as ‘genetic vanity”. It means that the parents want some kind of genes which they could relate to. It somewhat highlights the quality of only love’s one’s own and hate everyone else’s! So that loving one’s child because he/she is of one’s own blood is kind of exclusive thing. Therefore genetic vanity is a desire to see a carrying on of one’s own genes. As a result the intended parent may get a surrogate for one reason or another.
Surrogacy, worldwide, spins a web of emotional, social and legal issues. Such that they are discussed in brief below:
India may have been a booming centre of ‘reproductive tourism’ for several years now, but there are still number of stones left unturned. India is known for her cultural and traditional values that are imparted to her female citizens. No matter how modern and sophisticated they might start acting, the mentality of preserving moral values cannot be easily forgotten. There was a time when the thought of carrying child without getting married was considered immoral and unethical, let alone having someone else’s child in exchange of money. However times have changed drastically, nowadays a woman can use her body in whatever way she desires to as long as she wants it. Such that the law itself provides for the same as long as it is legal. It would definitely never prohibit an act which involves giving birth to a life.
Most astonishingly, surrogacy, which once was frowned upon is quite prevalent within different territories of India, mostly backward of course. Such that, whether it is a boon or a bane is yet to be decided. It is not surprising that most of the uneducated women opt for becoming a surrogate mother is because they are in dire need of money and why they wouldn’t! Surrogacy is the rich business. All the medical bills, from the date of insertion to the date of delivery, the surrogate mother is pampered and looked upon. Such that they get everything at their beck and call as long as they are carrying other’s child in their wombs for that period.
It is said that money is not everything but to these women who are living in filthy and pitiable situation, for them it might just be everything. It solves their problem of never going empty stomach to bed or having to worry about their families. So is surrogacy ethical? Is outsourcing surrogacy to developing countries a bad thing? The views might differ of course. Though on its most fundamental level, surrogate motherhood can be interpreted as an economic transaction, the reality is far more complex due to the degree of intimacy involved. On top of the basic economics of the situation, there are layers of emotional complexity, rights of bodily autonomy, and unaddressed questions of women’s rights in developing countries.
Surrogacy is a matter of choice. Indian constitution guarantees a dignified life to every citizen as a fundamental right. Hence, if a woman wants to be a surrogate mother in order to feed her own family, she has every right to do it! Hence this pregnancy becomes a gift of life not only to that childless couple but to that of the surrogate’s mother family. Besides going by the illiteracy rate, how much of a choice does an Indian woman really have? Moreover, equal rights for women means giving women autonomy to choose for themselves, to choose their lifestyle, sexual, and reproductive freedom. With that premise in mind, telling a woman that hosting a surrogate pregnancy dehumanizes her just imposes a new form of paternalism. Why not let each woman choose for herself then? In reality the talk of women empowerment is just the cover up. What actually lies underneath is more barbaric in nature. Such that critics of outsourcing surrogacy argue that payment for bodily services dehumanizes the surrogate mother and exploits her reproductive organs and capability for personal gain of the wealthy.
The need for reproductive freedom, procreative liberty and of the negative right of interference by government on matters of personal choice is undeniable. However, the silence of the Indian government is in line with values of democracy, with ethical guidelines advocating for a woman’s autonomy to choose her own reproductive rights tells a different story all together. Such that it only gets worse. India is one of the fastest developing nations; however our outlook is nowhere as developed as we think. Another popular view for instance is that surrogacy is similar to prostitution. It is often pointed out that it reduces women’s reproductive labour to a form of alienated and/ or dehumanized labour. Such that motherhood is becoming a new branch of female prostitution with the help of scientists who want access to the womb for experimentation and power wherein it is the womb and not the vagina that is being bought. However this is an unfair comparison as that women’s reproductive labour, like their sexuality, cannot be compared or treated in the same way as other forms of physical labour. It is very important to understand that pregnancy is not simply a biological process but also a social practice. It’s a social and gestational labour, making it off as an occasion for the parents to prepare themselves to welcome a new life into their family. Some even do it as a gesture for their loved one’s. Moreover, it is not a new fact that every day we trade money for services without forming a deep personal or emotional relationship with each other..
Like every coin has two sides, there is one dark side to this as well. It is not necessary that the woman who becomes ready to carry a child will always be in a good health from the beginning of the process. Such that it known fact that mostly those women who go for surrogacy usually do it for the money to survive. Hence, it is obvious that they are in poor health and during or after pregnancy, a possibility of complication would hardly be surprising. This is where the problem generally arises in respect to the surrogacy contract between the surrogate mother and the couples. Usually the surrogacy contracts made between the two parties is drafted along the lines that the childless parents provide for the health and care of the mother till the time she delivers. This means that incase of complications after delivery there is no legislation which provides either for the health or medical bills for the surrogate mother once she has given birth.
Moreover cases wherein the child born suffers from certain birth defects also pose a problem for these surrogate mothers. Congenital diseases are those inheritdatairy defects have got nothing to do with the genes of the biological parents, but with that of surrogate mother’s health. The food she ingests, the way she lives, the vices, if any, she suffers from, the cleanliness of her surroundings, all have a bearing on the wellness of the child to be delivered. Such that after the delivery the child so born if has some birth defects from the stage of conception., in that case what happens to that child is still not provided anywhere in the act. In the end is it fair for a female to carry the risk of having someone else’s child for money? Moreover this has become a practice in most of the rural areas which forces one to think that is it correct for a female to practice surrogacy again and again judging by the ill effects of pregnancy.
The bond between a mother and her child is a sacred one. However, the application of economic norms to the sphere of women’s labour violates their claim to respect and consideration. Firstly, by requiring the surrogate mother to repress whatever paternal love she feels for the child, these norms convert women’s labour into a form of alienated labour which basically makes it harder for women to opt for it. Also, by manipulating and denying perspective on her own pregnancy, the norms of the market degrade her.
It is very important to understand that the relationship between a pregnant women and her unborn fetus is essentially different from that between a worker and his material product. Children are not means, but ends in relationships with their mothers; mothers regard the relationship as a meaningful end in itself; and not as a means to some other end. The contract may require her to act against her feelings to fulfill its terms. Such that the contract ‘does not require the surrogate mother to feel in certain ways, but rather act in a certain way’ Even though one might act as per the terms laid down but signing a contract does not determine what one’s views and feelings might turns out to be in the future. Therefore, would undergoing a change of heart, of one’s view or feelings, change the terms of the contract? If it does then wouldn’t this defy the purpose of contract which was to provide mutual assurances of how the parties to contract would act in the future? This problem yet has to be dealt by covering legal grounds along with laws of nature.
Those who oppose contracts for surrogate motherhood argue that they are morally tantamount to baby-selling. With commercial surrogacy as with baby-selling, a woman is paid a fee, in exchange for relinquishing a child. However one can argue that, commercial surrogacy is more like selling sperm than selling a baby; when a woman agrees to undergo a pregnancy for pay; she does not sell a preexisting child but simply allows another couple to make use of her reproductive capacity. This can put some issues to rest however reality kicks in hard when these babies are sold off for three figures sum.
While surrogacy is a boon for childless couples, there are many legal factors around it that must be kept in mind. Since renting wombs has become an easy and cheap option in India. Surreptitiously, India has become a booming centre of a fertility market with its “reproductive tourism” industry. ART (assisted reproduction technique), has been in vogue in India since 1978 and today an estimated 200,000 clinics across the country offer artificial insemination, IVF and surrogacy. In Jan Balaz v Union of India, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district in Gujarat. This in itself is proof enough that surrogacy is presumably considered legitimate because no Indian law prohibits surrogacy. But then, as a retort, no law permits surrogacy either. Hence it hoped that the proposed law will usher in a new rent-a-womb law as India is set to be the only one to legalise commercial surrogacy.
Hence commercial surrogacy is legal in India. But it’s still unregulated in our country as we don’t have legislation controlling surrogacy. And although the Indian Council of Medical Research (ICMR) has set ‘national guidelines’ to regulate surrogacy, these are still simply guidelines. All that is mentioned is that surrogate mothers need to sign a “contract” with the childless couple. There are no stipulations as to what will happen if this “contract’ is violated. Issues relating to nationality of the child born out of surrogacy need to determined with thoroughness. The Indian Apex Court in one of the cases has ruled that the child delivered by an Indian surrogate mother would be the citizen of India. This poses problems for foreigners who would obviously want the child to acquire citizenship of their home country and therefore, needs to be chalked out properly.
Hopefully by passing a law in this direction will set things to change now, with India set to be the only country in the world to legalize commercial surrogacy. The proposed rent-a-womb law, if passed in the next parliamentary session, will clearly be one of the friendliest laws on surrogacy in the world.
The Draft Assisted Reproductive Technology (Regulation) Bill, 2010, is a step in the right direction. It will help regulate the functioning of the in-vitro fertilisation (IVF) centres and make the entire process of surrogacy legal. The setting up of ART banks will ensure quality check and accountability. The proposed Bill, however, legalizes not only surrogacy per se but even commercial surrogacy or surrogacy “for monetary compensation” or “on mutually agreed financial terms”. It provides that surrogate mother can receive monetary compensation for carrying the child in addition to health-care and treatment expenses during pregnancy. But the surrogate mother has to relinquish all parental rights over the child once the amount is transferred and birth certificates will be in the name of genetic parents. The age-limit for a surrogate mother is between 21- 45 years. Single parents can also have children using a surrogate mother. This first-of-its-kind Bill to control and monitor cases of surrogacy in the country has been drafted by the Ministry of Health and Family Welfare, along with the Indian Council for Medical Research (ICMR) which makes surrogacy agreements between the two parties legally enforceable. In addition it said that the new law protects everyone involved which include genetic parents, surrogate mother and the child. However, the Draft Bill lacks the creation of a specialist legal authority for adjudication and determination of legal rights of parties by a judicial verdict and falls in conflict with the existing laws. These pitfalls need to be examined closely before enacting the legislation.
The law commission of India has also submitted on “need for legislation to relegate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy.” Such that the various measures proposed includes that the surrogate mother shall be allowed to bear a child with her and her family’s consent such that in the event of death of the commissioning couple or other, the surrogate child shall be provided with financial support. This surrogate child is to give the legitimacy of his commissioning parents wherein one of them has to be related to the child (donor). Hence we see that most of the questions raised are covered up with the proposed legislation. But it is still quite clear that there is a wide difference between the laws on different issues of surrogacy. Sometimes they seem to be uniform and sometime they are completely deserted.
PREVALENCE AND SUCCESS OF SURROGACY IN INDIA
India’s surrogacy boom began in January 2004 with a grandmother delivering her daughter’s twins. The success spawned a virtual cottage industry in Gujarat. Today, India boasts of being the first to legalize commercial surrogacy soon to legitimize both intra-and inter-country surrogacy. Prevalence in India is hard to predict as there are no exact figures available and prevalence is also dependent on specialized centre’s that cater to surrogacy as an option to couples that have no other way of getting a baby of their own.
However, the success rate of surrogacy is almost astonishing and increasing with an alarming rate. The surrogacy package price covers doctor fees, legal fees, surrogate work up, antenatal care, delivery charges, surrogate compensation, egg donor, drugs and consumables, & IVF costs.
India is emerging as a leader in international surrogacy and a destination in surrogacy- related fertility tourism. Indian surrogates have been increasingly popular with fertile couple in industrialized nations because of the relatively lost cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Such that with things becoming easier and legal, people might become overenthusiastic and have a baby for which they are not emotionally prepared on a long-term basis. Neglect and abuse of these children is an issue of concern and a mechanism should be put in place for monitoring their progress by social agencies.
Therefore, surrogacy is, in and out, neither necessarily good nor necessarily bad. If surrogacy were bad, it would be easy to say “ban it.” But if it can be either good or bad then I suppose the question must be whether it is possible to structure it or regulate it in such a way that the good outweighs the bad substantially enough to make the whole package worthwhile. If implemented properly, it can be quite positive. Such that the law does not necessarily promote moral and ethical behavior but it can help to be very persuading. Such that there is no doubt that Surrogate motherhood is a positive addition to the ever-expanding range of technologies now available as remedies for infertility. Commercial surrogacy is necessary evil. No matter how unethical or immoral it may sound but in a poverty stricken country like India people take it as blessing in disguise. Commodification of children is an inextricable part of the process of surrogacy, any more than it is an inextricable part of any other process by which one becomes a parent. The fact that it’s new should not prevent it from being regulated in form of a law. This is already boosting reproductive tourism and globalization. It cannot be ignored solely on the argument that this is not what our ancestors have approved of because at the end of the day every woman has the right to market be it her organs for donation or her womb for giving life to a childless couple. If it is morally permissible for men to sell off sperms on the basis of their reproductive capacity, why is it not morally permissible for women to sell theirs in this gender equality based country?
At the end, I believe that in order to make any of this possible, it is essential to remove the feeling of degradation that comes into people’s mind when faced with the concept of “renting a womb” by both educating them and empowering them with actual factoids.