COMMERCIAL SURROGACY: SHOULD THE LAW INTERVENE?

THIS ARTICLE WAS WRITTEN BY ADITI HALDER, A STUDENT OF WBNUJS.

 Since its legalisation in India in 2002 it commercial surrogacy has become the most preferable options for the infertile couples to complete their family. From last decade, many couples from the country and outside country have opted for it. But its popularity and preferability has led to some of its side effects as well such as exploitation of surrogate mothers, abandonment of the children born out of it and increase in surrogacy rackets. And because of that the Indian Government has presented Surrogacy (Regulation) Bill,2016 in Lok Sabha. The bill aims to bans commercial surrogacy in India and allows only the married heterosexual for altruistic surrogacy claiming that the law if passed will avoid the exploitation of surrogate mothers and all other kind of evils related to commercial surrogacy. This essay enables in outlining the existing inconsistency of the bill with the constitution and socio-economic condition of nation and other consequences of it which the legislators should considers and rather look forward to proper regulation of commercial surrogacy than completely banning it. In this essay, the author aims to discuss the probable repercussions of this bill and the available alternatives.

1. INTRODUCTION

Parenthood is considered as something which is important to complete a family, hence infertility and childlessness has always attracted the attention of medical science. The issue is not only regarding being able to provide a child to the intending parents, but to provide a ‘biological’ child to the intending parents. To achieve this purpose medical science has come up with a unique process called surrogacy. It is a kind of arrangement where a woman agrees to carry pregnancy for another person who will become the parent of the new born. There are various types of surrogacy depending upon the genetic relation of the child with the commissioning parent. Along with heterosexual couples it has opened the flood gates for the homosexual couples and single people as well.

After  the legalisation of surrogacy  in 2002,[1] India has become the hub of surrogacy for the people from different countries. One of the reason behind it, is that in many countries commercial surrogacy has been banned. Since then there have been many reported incidents of exploitation of surrogates, abandonment of children born out of surrogacy, and rackets of intermediaries importing human embryos and gametes which has led to its widespread condemnation.[2] In 2016 the Indian Government unveiled a draft law which would ban commercial surrogacy in India.[3]

Some of the debatable provisions of the bill is as follows:

1. The bill bans commercial surrogacy, and only allows altruistic surrogacy.
2. The intending couple should be Indian citizen, married for at least five years.
3. The surrogate mother should be the close relative, married and having a healthy child of her own.
4. No other expenses to be paid to surrogate mother, except the necessary expenses during the pregnancy.
5. Homosexuals, people in live in relation, unmarried and divorcees won’t be allowed for surrogacy.
6. The law would be punitive in nature including imprisonment of 10 years and fine up to 10 lakh rupees.[4]

The bill has been criticised on many grounds, including violation of fundamental rights to potential economic loss to the country.

1. CRTICAL ANALYSIS

1. COMMERCIAL SURROGACY V ALTRUISTIC SURROGACY

Commercial surrogacy is undertaken for monetary benefit while altruistic surrogacy involves no monetary benefit except medical expenses and insurance coverage during surrogacy.[5] The government has claimed that ban of commercial surrogacy would prohibit the intermediaries, surrogacy rackets and intending parents from exploiting the surrogate mothers who come from an economically unstable background. However, the concept of altruistic surrogacy is complex as there is no parameter which defines altruism in a transaction. The law is vague and it does not define which expenses are legitimate and which are not. It will result in creation of   a grey area in the law itself which can be further used to exploit the surrogate mothers even more. Moreover, ban of commercial surrogacy might take the business underground as it happened in Canada [6] and will leave the surrogate mothers even more vulnerable without any recourse to legal remedies.

While concerning about the exploitation factor of commercial surrogacy the bill has failed to consider the situation of intending couples. While dealing with an issue, all the aspects of its should be considered.  Not everyone can find a relative who will selflessly agree to go through such a complex and risky process of pregnancy. Doing something like that out of benevolence sounds like a utopian concept.

The supporters of the bill have contended that the process of commercial surrogacy is very risky and it affects the surrogate mother physically and mentally. However, that is a fallacious argument since the surrogate will go through the same process even if the surrogacy is altruistic. The author argues that the distinction is based on gender norms specifying that love and affection not self-interestedness or financial gain should underlie women’s motivations to have children.[7] Financial remuneration in commercial surrogacy has additional mental health benefits for the surrogate mothers. Research has shown that payment aids emotional detachment from the growing foetus, and, together with different psychological distancing techniques, the surrogates have been shown to have an overall positive pregnancy experience.[8] Analysis of non-remunerable surrogacy has shown that these women are less likely to take good care of themselves and ensure that the child is born healthy. This observation of suboptimal care argues for enforceable contracts with ample payment, where the surrogate mother has a vested economical interest in the welfare of the unborn child.[9]

1. DENIAL OF OPPORTUNITY TO GET RID OF POVERTY TO SURROGATE MOTHERS

Some other arguments in favour of the bill has been that, the surrogate mothers are generally from economically weaker society and they do it only for money, which leads to their exploitation. On an average, the surrogate mothers earn 3- 4 Lakhs which is nearly three to four times of their annual family income.[10] Denial of this opportunity might leave them will options such working as a domestic worker, sex worker or selling organs or blood. The Government has decided to pass this law by taking examples from other countries which has banned commercial surrogacy such as Australia, Canada, Japan etc. But the social and economic circumstances of our country is completely different from them, either it is the per capita income or the availability of employment both are far lesser then all these countries. Ban of commercial surrogacy might not be a denial of huge opportunity of earning considerable amount of one in one time in those countries as it in India where poverty and unemployment is widespread. Obviously, the dire need of money of the surrogate mothers and desires of having child of intending parents will help to flourish the black market of surrogacy even more.

1. INCREASE OF CHILD ABUSE IN ADOPTION AND CHILD TRAFICKING

It has been suggested that if you cannot go altruistic surrogacy then you can go for adoption. That seems like an appropriate option but the reality is completely different. Generally, the waiting list for adoption in agencies is very long and the process itself is very time taking. One an average it takes at least two years to complete the adoption process, which is twice as time taking as pregnancy. Moreover, there are chances of increase in child abuse in case of adoption because there is less sense of adoption between the parent and the child as there is no biological relation. Also ban of commercial surrogacy might lead to the increase of child trafficking, because people who want to experience parenthood and can not avail of commercial surrogacy might find it as an easier option that time taking adoption process. Another factor which can lead to the increase of child trafficking is the provision in the bill which requires the couple to be married for at least five years, there are chances that people who want to become parents and are infertile may take advantage of child trafficking.

1. VIOLATON OF FUNDAMENTAL RIGHTS

The bill is violative of Article 14 of Constitution. Right to equality[11] because it discriminates based on sexual orientation and marital status. Restricting homosexuals, people in live in relations, unmarried and divorcees from the right of parenthood is complete denial of right to equality. The bill coincides with the idea of traditional family and it aims to enforce it on us.

The notion of family has changed over time, the traditional idea of family was that there must be a union of two heterosexual individual for the continuance of the lineage whereas in modern society marriage and heterosexuality are not considered to be a crucial factor of constituting family. One can argue that Indian society is conservative and the idea of traditional family is prevalent here hence the bill is non-discriminatory. But one cannot ignore the changes which are taking place, we have come across many instances of homosexual marriages happening across the country, where couples choose to live together without tying the knot, or where people voluntarily choose to be single. Though the proportion is less as compared to the traditional family but we can’t ignore their existence completely. While making the law we must always keep in mind the dynamic nature of the society.

III.CONCLUSION

We see that it is doubtful whether the bill be able to solve the issues which it claims to do so. Banning the commercial surrogacy will be an easy and quick step which would not yield any significant result. Instead, proper rules and regulations can be made so that exploitation of surrogate mothers can be avoided and both the parties (the intending parents and the surrogates) can benefit from the transaction. An authority similar to CARA[12] can be constituted which will ensure the ground level implementation of the rules. The legislators should become inconsistencies of the bill with the constitution and existing socio- economic conditions of the society.

[1] India’s Baby Farm, The Sun-Herald. 6 January 2008.

[2] Louise Anna Helena Ramskold and Marcus Paul Posner. How provisions of monetary remuneration and powers of international law can prevent exploitation of gestational surrogates, Journal of Medical Ethics. 39 (June 2013).

[3] THE SURROGACY (REGULATION) BILL, 2016 Bill No. 257 of 2016.

[4] Id.

[5] Supra, note 3.

[6] Paid Surrogacy Driven Underground in Canda, CBC News. 02 May 2007.

[7] Sharyn L. Roach Anleu. Commercial and Altruistic Surrogacy, Acta Sociologica, 33 (1990).

[8] Humbyrd C. Fair trade international surrogacy, Dev World Bioeth. 3 (2009)

[9] Id., 2.

[10] Amrita Pande. “At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India, Feminist Studies. 36 (2010)

[11] The Constitution of India, 1950, Art. 14.

[12] Central Adoption Resource Authority.