Commercial Surrogacy: A choice or need

This article was written by Anshuman Mohit Chaturvedi, a student of Symbiosis Law School, Noida.

The human body is a wonderful machine and has helped us achieved great heights in medical science and technology. With the technology, humans have been able to help the couples deprived of the most beautiful feeling in the world: Parenthood. Nature has presented the wonderful ability to reproduce a life inside women and every woman appreciates the experience of motherhood. Sadly, a few ladies because of certain physiological conditions can’t bring forth their own offspring. With processes like test tube babies, IVF and surrogacy, now even the infertile couples can enjoy parenthood. Where IVF and test tube babies are new artificial techniques developed by human, Surrogacy has existed for years. Also known as ‘Rent a Womb’, surrogacy has existed in the human civilization for years and is still one of the majorly followed ways for an infertile couple to become a parent.

Surrogacy is of two types: Altruistic and Commercial. In Altruistic Surrogacy the surrogate mother is not compensated for the child she carries in her womb. In commercial surrogacy, the Surrogate mother is paid and compensated for the child she carries. There is an agreement between the intending parents and the surrogate mother regarding the conditions and the compensation to be paid to her.

India has become a hub the for the commercial form of surrogacy. Couples from all over the world come to India with the desire of becoming parents. World-class medical facilities at a very cheap price and poverty in the India are the main reason behind the growth of commercial surrogacy in India. Many commercial surrogacy centers have come up in India, which intends to make the process easier for the intending parents but many times in their greed for money exploit the surrogate mother. Center for Social Research (CSR) published a study dealing with women’s issues, which reveals the data that in 2014, 76% in Mumbai and 88% of surrogate mothers in Delhi did not know the terms of the surrogacy contracts. The External Affairs Minister in a media briefing that there are more than 2000 commercial surrogacy centers without a license once quoted it.

Commercialization of surrogacy creates several social conflicts. Given the extreme vulnerability, one-third of the Indian women due to poverty, exclusion from and marginalization in labor and job markets, patriarchal social and family structures and low educational levels, the financial gain through surrogacy become a key push factor. As most surrogate mothers are not from well-off sections of the society and their primary motives are monetary gains, so they can be easily exploited by the agents working for commissioning parents. Secrecy and anonymity create a negative environment that affects human relations within and outside families.[1]

Surrogacy carries social stigma in the society as it is equated with prostitution and consequently, it is argued that it should be disallowed on moral grounds. Surrogate mothers are kept in isolation from families and allowed to meet families on weekends, which violates human rights. Hence, there are a number of ethical, social, legal and psychological issues associated with surrogacy, which require an urgent need for framing and implementation of law.

To regulate this, the government of India has at times presented bills and legislation to regulate the commercial surrogacy centers. ART (Regulation) Bill 2014 and The ICMR guidelines 2002 are the legislative acts enacted by the government to protect the rights of the surrogate mother. The government of India intends to ban commercial surrogacy in India by presenting a bill in the parliament and has also told the Supreme Court in an affidavit filed by the government. “The bill was required as India has emerged as a surrogacy hub for couples and incidents (were) reported on unethical practices,” external affairs minister Sushma Swaraj said at a media briefing on decisions taken by the cabinet. As of 2013, India, Georgia, Russia, Thailand, Ukraine and a few U.S. states, where the location where a woman could legally be paid to carry another’s child through IVF and embryo.

ICMR Guidelines

ICMR issued guidelines for accreditation, supervision, and regulation of ART clinics in India, these guidelines are repeatedly violated.[2] Frustration of cross-border childless couples is easily understandable who not only have to cope up with the language barrier, but sometimes have to fight a long legal battle to get their child. Even if everything goes well, they have to stay in India for 2-3 months for completion of formalities after the birth of a baby. The cross-border surrogacy leads to problems in citizenship, nationality, motherhood, parentage, and rights of a child. There are occasions where children are denied nationality of the country of intended parents and this results in either a long legal battle like in the case of the German couple with twin surrogate children or the Israeli gay couple who had to undergo DNA testing to establish parentage or have a bleak future in the orphanage for the child. There are incidences where the child given to couple after surrogacy is not genetically related to them and in turn, is disowned by the intended parent and has to spend his life in an orphanage.[3]

Law Commission Report

The law commission of India has submitted the 228th Report on “Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligation of Parties to a surrogacy.”[4] The observations made by the law commission were, “Surrogacy arrangements will continue to be governed by contracts amongst parties, but such an arrangement should not be for commercial purposes. A surrogacy arrangement should provide for the financial support for the surrogate child in the event of the death of the commissioning couple or individual before delivery of the child. A surrogacy contract should necessarily take care of life insurance cover for a surrogate mother. The legislation itself should recognize surrogate child to be a legitimate child. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only. Right to privacy of donor as well as the surrogate mother should be protected. Sex-selective surrogacy should be prohibited. Cases of abortion should be governed by Medical Termination of Pregnancy act 1971 only”.[5]

ART Regulation Bill

The government in 2016 is planning to ban commercial surrogacy in India. According to the affidavit filed by the government in the Supreme Court, the government intends to ban commercial surrogacy in India and only altruistic surrogacy will be allowed which means that India, which had become ‘Rent a Womb’ destination will have to close down all the surrogacy centers once the bill is passed in the parliament. The bill proposed is heavily borrowed from the law in the United Kingdom. The bill bans surrogacy for same-sex couples and foreign nationals. The decision to ban surrogacy for same-sex couples is in consonance with the Supreme Court’s decision to bans same-sex marriages in India. Moreover the decision to ban it for foreign nations is taken because it is observed in most of the cases that when the parents split after a divorce, none of the parents is ready to take the responsibility of the child. The bill has also barred couples having one child of the option of surrogacy whether commercial or altruistic. Unmarried and single parent are also barred from surrogacy. In the previous bill prepared by the government in the year 2010, the government planned to regulate commercial surrogacy in India by registering the ART and IVF clinics in India. The bill acknowledged surrogacy agreements and their legal enforceability.[6] The surrogacy agreements were treated at par with other contracts under the Indian Contract Act 1872 and other laws applicable to these kinds of agreements. Both the couple/single parent and surrogate mother need to enter into a surrogacy agreement covering all issues, which would be legally enforceable. Some of the features of proposed bill were that an authority at national and state level would be constituted to register and regulate the I.V.F. clinics and A.R.T centers, and a forum should be created to file complaints for grievances against clinics and ART centers. The age of the surrogate mother should be 21-35 years, and she should not have delivered more than 5 times including her own children. A surrogate mother would not be allowed to undergo embryo transfer more than 3 times for the same couple. If the surrogate is a married woman, the consent of her spouse would be required before she may act as surrogate to prevent any legal or marital dispute. A surrogate should be screened for STD, communicable diseases and should not have received blood transfusion in last 6 month as these may have an adverse bearing on the pregnancy outcome. All the expenses including insurance of surrogate medical bill and other reasonable expenses related to pregnancy and childbirth should be borne by intended parents. A surrogacy contract should include life insurance cover the for surrogate mother. The surrogate mother may also receive monetary compensation from the couple or individual as the case may be for agreeing to act as such surrogate. Confidentially should always be maintained, and the right to privacy of the donor as well as a surrogate mother should be protected. If a foreigner or NRI is seeking surrogacy, they should enter an agreement with written guarantee of citizenship for the child from their government, and they should also appoint a local guardian who would be legally responsible for taking care of the surrogate during and after the pregnancy till the child is delivered to the foreigner couple or reaches their country. Sex-selective surrogacy should be prohibited, and abortions should be governed by the Medical Termination of Pregnancy Act 1971.[7]

Consequences of banning Commercial Surrogacy in India

 Banning Commercial Surrogacy in India will have wide implications on the society, which will be both positive as well as negative.

Negative implications

Majorly affected by the bill would the commercial surrogacy centers and the childless couples who desired to become parents by the help of a surrogate mother. In today’s world, it is difficult to find women who carry a child in her womb for nine months and will give it away without any compensation to anyone. The bleak possibility of altruistic surrogacy, in turn, leaves the intending couple with no choice but to adopt. In a case of adoption, the child adopted will not have the same genes as the parents, which are not preferred by most of the parents. Moreover, in the case of adoption, the adopting parents are not aware of the biological history of the child, which is not preferred in many cases. In cases of altruistic surrogacy the child would be aware of the biological mother. This situation would not be acceptable in a country like India, which is still under social evolution, and these arrangements are not acceptable in the society.

Commercial surrogacy centers in India will have to shut down their offices and there would be a huge loss to this booming sector. Furthermore, this would affect the GDP of our nation as the commercial surrogacy was helping in increasing the GDP of our nation. Thousands of people who are employed in this sector will lose their jobs and will become jobless further adding to the unemployed population of the nation.

Banning commercial surrogacy also affects many women who were planning to become surrogate mothers by choice just to uplift their social status and fulfill the needs of their family from the money they earn by renting their womb for someone in need. India with a big part of its below the poverty uses opportunities like surrogacy to elevate its level in the social strata and to fulfill the basic need of their families. Foreign couples used to give big money to the surrogate mother, which has been very helpful for them. Banning this would adversely affect this arrangement. It further violates their right to life guaranteed under Article 21 by violating the reproductive right of the surrogate mother.

Positive implications

The major positive impact of this law would be on the women who were exploited in India and were trafficked outside under surrogacy by some commercial surrogacy centers. Women in India were made ‘baby making factories’ as India became a surrogacy. Poor women were exploited in the name of surrogacy and were not even paid what was due to them. In many cases when a child was born with deformities the new born child was abandoned by the intending parents and biological mother was over burdened with the pressure of an extra child in her already suffering family. Also the surrogate mother will get better health facilities as the intermediaries are removed from the process of surrogacy.

Banning surrogacy arrangement will strengthen the moral and social values in the society and the child to be born for a gay couple or a single or unmarried couple would be saved from the embarrassment in the society as same-sex marriages are banned in India and single and unmarried parenthood are still not acceptable in the Indian society. Moreover a complete family would help in the overall development of the child. The decision to ban surrogacy for same-sex couples is also in consonance with the decision of the Supreme Court on Section 377 of the Indian Penal Code.

Foreign couples will not be allowed to have surrogate child in India. As we have observed in the Baby Manji’s case[8], the mother of the child abandoned her after she obtained a divorce from her husband. This has been a problem with foreign couples who abandon the child after splitting up with their partners. This situation will now be ruled out as no foreign couple would be allowed to have the surrogate child in India.

Banning commercial surrogacy and the ban on couples with more than one child to have altruistic surrogacy brings a ray of hope for abandoned and orphans in the country. Childless couples will try to adopt a child, as going for altruistic surrogacy would be very difficult for the intending parents. There are thousands of children in the orphanages in India who are not given the treatment and attention required by a child for a good and a healthy upbringing. As more couples will adopt these children, the Indian society would also develop, as these kids will get a better education, medical and healthcare facilities. Moreover living in a family will also fulfill the emotional nee of the child.

Parents with one child either by surrogacy or by adoption will not be allowed to have a child by surrogacy. This law will help in the population control. Before opting for a child by surrogacy the intending couple who are married for at least 5 years will have to submit the report of their infertility. Once the reports are screened then only the intending couple would be allowed to have a child by altruistic surrogacy.

What can be done

The latest bill prepared by the government of India, surrogate mother is not compensated for the child, which she gave birth to. The new bill should consider the rights of the surrogate mother in this case also and should entitle her to some compensation as in altruistic surrogacy the mother is not entitled to the compensation or the expenses incurred by her at the time of surrogacy. The bill, which has banned commercial surrogacy, should regulate altruistic surrogacy and should set amount, which can be given to the surrogate mother. It should also make clear laws about how many times women can be a surrogate mother.

Conclusion

Unregulated commercial surrogacy had become a big problem in our country. Rights of the surrogate mothers were violated and they were exploited by the surrogacy centers. The new bill rules out the situation. The new bill will also promote adoption and now thousands of abandoned and orphan children will find a home to live in where they will get proper care and facilities. Surrogacy had become a big problem as couples who were capable of giving birth to a child were having babies by the surrogate mother to avoid the hardship of pregnancy and regulating this will also have a good impact on the society.

The new bill seems to be a good piece of legislation and if implemented will have a good impact as it works in the direction of protecting the rights of surrogate mothers who were the marginalized section and were exploited in the whole process. It is hoped that the bill will be passed in the next session of the parliament. It is desired that the bill is passed at the earliest so that the damage to the society can be mitigated at the earliest.

Bibliography

Books

• Anjit Malhotra & Ranjit Malhotra, “Surrogacy in India, a Law in the Making” Universal Law Publisher, New Delhi,2014

Journals

• Amrita Pande, “At Least I Am Not Sleeping with Anyone”, , Vol. 36, No. 2,Feminist Studies, pp. 292-312
• Amrita Pande,” Commercial Surrogacy in India: Manufacturing a Perfect Mother‐Worker”, Vol. 35, No. 4 ,Signs, pp. 969-992 ,(Summer 2010)
• Anton van Niekerk and Liezl van Zyl,” The Ethics of Surrogacy: Women’s Reproductive Labour”, Vol. 21, No. 6 , Journal of Medical Ethicspp. 345-349, (Dec., 1995)
• Apoorva Mishra,” Surrogacy Transaction – A Perspective on the Constitutional and Contractual Aspects”, NLUJ Law Review, 2015
• HEATHER E. DILLAWAY,” MOTHERS FOR OTHERS: A RACE, CLASS, AND GENDER ANALYSIS OF SURROGACY”, Vol. 34, No. 2,International Journal of Sociology of the Family, pp. 301-326 (Autumn 2008),
• Kim Cotton,” Surrogacy Should Pay”, Vol. 320, No. 7239, British Medical Journal, , pp. 928-929, (Apr. 1, 2000)
• Sharyn Roach Anleu, “For Love but Not for Money?”, Vol. 6, No. 1, Gender and Society, pp. 30-48, (Mar., 1992)
• Anil Kumar,” Surrogate Mother Ethical or Commercial”,Vol-3, No-1, Center for Social Research, October 2000
• Anu, Pawan Kumar et al., Surrogacy and Women’s Right to Health in India: Issues and Perspective, Volume 57, Issue 2, Indian Journal of Public Health, April-June, 2011
• Monika Banode, “CRITICAL APPRAISAL OF LEGAL SPECTRUM REGULATING SURROGACY CONTRACT: A COMPARATIVE STUDY WITH SPECIAL REFERENCE TO INDIA” Vol:2, Issue:2, South Asian Journal of Multidisciplinary Studies (SAJMS) 2011

Sites

• Surrogacy and women’s right to health in India: Issues and perspective, available at http://www.ijph.in/article.asp?issn=0019-557X;year=2013;volume=57;issue=2;spage=65;epage=70;aulast=Anu,(last accessed on 30/9/2016)
• Types of Surrogacy available at http://health.howstuffworks.com/pregnancy-and-parenting/pregnancy/fertility/surrogacy1.htm (last accessed on 29/9/2016)

[1] van den Akker OB. Psychological trait and state characteristics, social support and attitudes to the surrogate pregnancy and baby. Hum Reprod 2007;22:2287-95.

[2]National guidelines for the accreditation supervision and regulation of ART clinics in India. http://www.icmr.nic.in/art/art_clinics.htm .

[3] Available from http://www.timesonline.co.uk/toI/news/world/asia/article/7113463.ecc.

[4]Law commission of India. Report 228. 2009. Available from http://surrogacylawsindia.com/admin/userfiles/file/report228.pdf.

[5]Svitnev K. “Posters Ethics and Law”. Hum Reprod 2010;25:i235-6

[6]National guidelines for the accreditation supervision and regulation of ART clinics in India. http://www.icmr.nic.in/art/art_clinics.htm

[7]Central adoption resource authority. Available from: http://www.adoptionindia.nic.in .

[8]WRIT PETITION (C) NO. 369 OF 2008