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India’s Historic Perspective and Modern Outlook of Women’s body: Prostitution v. Surrogacy

A woman's body is constantly being exploited by the society. Prostitution is a form of sexual exploitation. In surrogacy there is a contract, whereby the woman agrees to bear child for someone who is unable to do so. The end of both the acts is money. Surrogacy can be termed exploitative as it is a priceless act; and for such they aren't even paid accurately. This article commentates on the antiquity of status of women in the past and how prostitution existed back then, along with the development of the Surrogacy in India. The statistics of women getting involved in both the occupation is escalating on the positive side of the graph. India has become a hub for Sex Tourism as well as Medical Tourism. There are no specific Acts which regulate them. However, Immoral Trafficking (Prevention) Act, 1956 controls prostitution in a limited sense. The Surrogacy Regulation Bill is yet to be passed. Ambiguity whether Surrogacy is a type of Positive Prostitution stems, as there is use of woman's body in return of money. Procreation is the difference it serves. However, it would be vague to compare them both; as there is no use of force in the latter and a surrogate can easily withdraw to serve, unlike a prostitute.

When we search, in Wikipedia for, the meaning of a Woman it says a Female ‘human being'. But how far has ‘the human' practically been applicable to a woman? People residing in the modern era of the psychology and society would say to a greater extend but truth is beyond imagination. The world has been a Patriarch since time immemorial, wherein the woman was considered merely slaves or sex objects. They were a part of the property and were bought and sold whenever the man wished. Many social reformers and feminists worked on changing this perspective. Today, definitely many social evils have been eradicated; but the new forms of profiteering have come up into the picture. The worst part is that there has been exponential growth of exploitation of women throughout years, exploitation of her body being the finest. The astonishing fact is that there has been consensual exploitation of her body by the means of Prostitution and Surrogacy.

History:
The condition of women in the ancient times i.e. Vedic times was not really worse as it is today. ‘A great deal of time and energy has been wasted by Hinduism bashers, as correctly opined by Sanjeev Newar in his book[1],to find the verses from various Hindu texts like Ramayana, Mahabharata, Purana, Manu Smriti, etc. denigrating women.' The women are greatly honoured in the Vedas and was considered as a deity who would bring prosperity and wealth to a family. It profoundly cites that women should be well educated and should complete their schooling before getting married and that she should be given dowry of knowledge[2]by her parents. That the daughter shall have equal rights in the property of the father as of the son.[3]The women should be encouraged to train themselves in an army and that they should also participate in the wars.[4]All these verses precisely depict that a woman was looked upon as a high spiritual, moral and powerful being. But as the time passed there was metamorphism in the texts which gradually degraded the status of women in the society.

History of Prostitution:

The introduction of Manu Smriti by the King Manu was the peripeteia of human society. Through the inception of Varna system the Brahmins were placed on the high citadels whereas the Sudras were the most oppressed one. Not only had the Brahmin male discriminated with the Sudras, but also with the women. The women of the high class societies were expected to manage the household affairs and to procreate and nurture the child. Education was just a chimera. Manusmriti leaves no room of dignity of women. The following are the verses that humiliates the women at ground level:

(i) It is the nature of women to seduce men in this world; for that reason the wise are never unguarded in the company of females[5].

(ii) One should not marry women who has have reddish hair, redundant parts of the body [such as six fingers], one who is often sick, one without hair or having excessive hair and one who has red eyes.[6]

(iii) Wise men should marry only women who are free from bodily defects, with beautiful names, grace/gait like an elephant, moderate hair on the head and body, soft limbs and small teeth.[7]

(iv) Wise people should avoid sitting alone with one's mother, daughter or sister. Since carnal desire is always strong, it can lead to temptation.[8]

The above mentioned verses are just a brevity of what Manusmriti contains[9]. It depicts how a woman isonly about her bodily appearance. It was believed that a woman who was beautiful, charming and attractivecould not only acquire a piece of land but also can conquer castles and kingdoms and thus, it was advisable to a wise man to stay away from woman of such virtue as she may be a lady of vice in disguise. It was only because of such ideology that the role of women as Prostitutes came into picture.

Kautilya (4thCentury BCE), an eminent King-maker and Machiavelli of the west, in hisArthashastra has a special mention of Prostitutesorganikasin practice and hence the profession can be regarded as one of theoldest profession. He, by all hooks and cooks, would achieve what he aimed for. Tales speak of how prostitute aided him, who contained venom on her tongue, to kill an emperor. Arthashastra categorized ganikas intothree kinds: (i)theganika who practised within a state controlled establishment
(ii) therupajivaor an independent who could practice prostitution outside the sphere of state and
(iii) the pumsachalior the concubine.

The ganik as were a medium of adding up money to the economy of the state. High taxes were charged from them but at the same time clusters of wealth was disposed for setting up of brothels. The revenue generated from the brothels were a stable source of income of the state. A prostitute in Kautilya's regime was of highbrow and therefore men liked spending more time with prostitutes than their wives. The only drawback was the child born to a prostitute was given no legal identity. Many legal safeguards were provided such as rape or group rape on ganikawas considered crime andpenaltywas imposed on the wrongdoers. An educated prostitute was positioned as King's advisor.

The 6th Century AD [10]paced into the Hindu religion theDevdasisystem. The young girls, mainly minors, in a deceitful manner, were compelled to marry the deity and to renounce rest of her life in His service. In the Chola period (10thcentury A.D.) possession of Devdasi was considered as a matter of pride. Higher the number of Devdasis, greater would be the prestige in the society. However, due to the advent of Islamic rulers the Hindu temples were destroyed and the Devdasis were left on last legs with nothing but to beg around the streets eventually putting themselves on the market.[11]

In the colonial India viz. early 20thCentury, there was an influx of British prostitutes, through the sea-ports, to appease the White men. It was expected that they would avoid intimating with the Indian women. However, this was proved to be a ‘turn the table' manoeuvre, of the Britishers, as the White women started engaging with the Indian males and this was seen as a troublesome act; as the union would give rise to the mixed raced children.[12] During this era, there existed smaller forms of Devdasi system and the women chiefly maintained relations with the men of higher social status. To avoid further convergence of convoys into Hindu women, the Devdasi system was prohibited by the British officials through IPC and was made a punishable offense.[13]

History of Surrogacy:

Family is considered to be the nucleus of any society and it is born out of the sacred union of heterogeneous being by the way of marriage. A classic definition of family, according to anthropologist George Murdock," is a social group characterized by common residence, economic cooperation, and reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved relationship, and one or more children, own or adopted, of the sexually cohabiting adults."[14]By this definition it is apparent that the society expects an offspring out of a marriage for continuance of their family name as well as to perform one's funeral rights. But not everyone is blessed with a child of his own because of the problems of infertility in either or both of the spouses.

In Manu smriti, the production of a son was a dire necessity. It says that through a son he conquers the world, through son's son he obtains immortality but through his son's grandson he gains the world of the sun.[15]Also a son delivers his father from hell called Put, he was therefore called Putra.[16]When there was disability of any of the couple to produce a male the following atrocious means had to be followed:

(i) On failure to produce offspring with her husband, she may obtain offspring by cohabitation with her brother-in-law [devar] or with some other relative [sapinda] on her in-law's side.[17]

(ii) In accordance with established law, the sister-in-law [bhabhi] must be clad in white garments; with pure intent her brother-in-law [devar] will cohabitate with her until she conceives.[18]

However, Manusmriti along with other Smritis such as Yajnavalkya, Kapila, Lohita, and Angira & Ankara strongly discuss about the law of adoption and inheritance of the adoption child. The Shastric Hindu Law looked upon at Adoption as a sacramental act. The Smrtikaras suggested that only one son could be adopted for the continuation of the family line and to offer oblations to the deceased ancestors. The Dharmasastras deals in detail with the qualifications of the male child to be taken in adoption. The adopted son is uprooted from his natural family and given to the adoptive family as a natural son.[19]

Surrogacy was not scientifically possible in the ancient era as the technology was not advanced back then, but one of the tales of Bhagvad Purana show how through the celestial power of Gods baby Krishna was transferred from the womb of Devaki to the womb of Yashomati; to protect Him from His cruel uncle Kans. This cannot precisely be referred as the process of surrogacy but can slightly be associated with. Also,the first ever case of traditional surrogacy is found in old testament Bible – Genesis, Chapters 16 and 30 ,the tale of Abraham & Sarai and the tale of Rachel & Jacob wherein the maid acted as gestational carrier, egg donor and bore children through their husband on the command of the infertile wife for ensuring genetic connection with the husband. The first ever codified legislative instrument on surrogacy is the Humamrabi's code of 18th century BC § 144 to § 146 states that surrogacy as a recourse for an infertile wife to have an offspring.[20]

In the nineteenth and the twentieth centuries there was a rapid advancement in the field of medical technology. Many inventions and experiments were carried out for tackling the problems of childlessness among the couples. Finally, on 25thJune, 1978 Dr. Robert G. Edwards[21]was successful in carrying an IVF[22]treatment and giving birth to the first test-tube baby namedLouis Brown. For this, he was bestowed with Noble awards in the year 2010. Consequently, the first traditional surrogacy took place in the year 1980 wherein $10,000was paid to the surrogate mother. The legal contract of surrogacy was drafted in the year 1986 of Baby M which was related to commercial gestational surrogacy. The most deliberated Indian surrogacy case was of Baby Yamada Manji v. UOI[23]which finally legalized commercial surrogacy in India.

Present Condition and Statistics
Prostitution and surrogacy serves as a medium of livelihood not only for the poor and low income groups but also sometimes for women who have been abandoned or separated by their families due to various reasons[24]. The uneducated and the unskilled women are left with no other alternative then to plight for such occupation. According to World Bank Report[25]of 2014, about 27 crores of Indians lives in poverty i.e. 1 of every 5 Indian is a poor. India now has a greater share of the world's poorest than it did thirty years ago. Then it was home to one fifth of the world's poorest people, but today it's ignominious accounting for one-third.80% of them are from the rural areas. Most of the money spent by the people of rural areas is on food, fuel and electricity. Only 6% of the gross income is spent on education. Conservative rural families do not reckon on educating the girl child. Birth of girl child, in the first place, is considered as burden to the family. However, she is constrained into domestic activities and is married as soon as she attains puberty; wherein the age of the groom is often neglected. In the process of getting rid of the girl child, they intentionally or unintentionally are forced into the market of Sex trafficking. Also, the traffickers, in a disguised manner of well-wishers, quack about the job opportunities to the family and sculpt the ways in which they can score a lump sum of money from the Metro cities. The family with a blind fold sends the girl off board with the traffickers. Sometimes neither the girl returns nor does the money promised.

Prostitution:
As per the UNODC[26]reports, in Central Asia66% of people are trafficked for sexual exploitation and the rest of them for forced labour, organ donation and other reasons. The girls are either sold off to the brothels or to any person who offers lump sum money to the dealer. The girl, being a homebody from the cradle and naïve about the outside world, has no option but to serve where she stays. She enters the profession without her consent, gradually turning herself into a prostitute. According to a report by the Ministry for Women and Child Development, India has nearly 2.5 million prostitutes in nearly 300,000 brothels in 1,100 red-light areas across the country. 90% or more estimated as in-country and 5 to 10% to cross-border trafficking, reported mainly from Bangladesh and Nepal. Around 1.2 million children are involved in prostitution in India. The Sonagachi District of Kolkata[27], also known as Golden Tree, serves as one of the India's largest brothels followed by Kamathipura in Mumbai.

In an interview conducted by UNODC: A girl from Bangladesh, aged 10, was tempted into the market of Sonagachi saying that she would be married to prince and kept in the palace. The girl took it as a gospel until she realized where she was. She tried escaping but was brutally raped by three policemen from whom she asked for help. She was clueless as where to go and thus returned to the brothel. At the age of 16 she had to mention her age as 22. If she refused to work she would either be kept hungry or beaten up. The beatings would be in such a way that it didn't harm her genitals; as the customer won't chose her.When asked whether she wanted to be rescued from the brothel she refrained; saying that this was her life now. She was scared that wherever she will be employed, she will be raped; and even if she opted for marrying someone the people will still consider as her a prostitute.

Looking at the statistical reports and the story of sex worker one can assert that a woman ‘Once into Prostitution, always into Prostitution.' Does this mean her life is now irreversible? Well, there has been a law, namely the Immoral Traffic (Prevention) Act, 1986drafted in relation with, not precisely asserting prostitution as a crime, but covering aspects such as conducting acts of prostitution in the public places[28], clients engaging into sex with a minor as crime; illegality of pimps or madams or Babus and also imposes obligation on State to rescue, protect and rehabilitate the one(s) seeking assistance; among other provisions. But the effectiveness of this Act is confined within the pages of the book as the executive parts remain dysfunctional. Where there are illicit crimes, there persists Corruption; nevertheless, brothels have become a source of commissions to the political parties as well as policemen. The raids are usually compensated through pocketing of big money. There are fewer NGOs who work for the rescue of the minor victims; most of them are engaged in diffusing awareness about Sexual Health and Sexually Transmitting Disease (STD); instead of Sexually Trafficked Destitute. Some NGOs seems to advocate more for the pimps, paying cold shoulder to the woman in need.[29]

Commercial Surrogacy:

Commercial Surrogacy serves as one of the Profit generating industries of India. For the poor, it serves as an easy way of earning money within a short span of time. As majority of customers are from the foreign countries, where surrogacy is prohibited, the income generated is in dollars denoting huge monetary gains. A contract is made between the parties, viz. the Intended parents and the surrogate, wherein a sum is assured for the delivery of baby as well as for the services to be rendered during the pregnancy. Many of the Surrogacy centres impersonate themselves as Legal IVF centres and carry out such operations.The reasons why India has been emerging as the ‘Surrogacy capital of the world'[30]are,because the women in India are less likely to get indulged into drugs, drinking or smokingi.e.they maintain good health condition. India has been a country of cultural values where intake of alcohol and smoking is considered unethical. The only women coddled are the fewer middle class and mostly that of upper class women. The rural women are hardly into such activities. Secondly, the Indians believe in marriage at an early age and therefore, the surrogates can gestate at her early 20s, giving birth to a healthy child. Child marriage has been practiced in India since the time immemorial. Although there has been aged limitation imposed, the people in the rural areas tend to get their children married soon after they attain pubic age. Lastly, the costs of conducting surrogacy in India are comparatively less than those charged in other countries. The amount charged for performing surrogacy is less than one tenth of what it is charged in the US and the UK. Also, the government ensures effortless providence of birth certificate as well as visa for the baby.

The Confederation of Indian Industry predicts now that the Surrogacy industry generates US$2·3 billion annually. Estimates are hard to come by, but more than 25,000 children are now thought to be born to surrogates in India; 50% of these are from the West.[31]This means the market of wombs are mostly proliferated by the people of the foreign nationals. The number of medical tourists into India increased from 150,000 in 2005 to 450,000 in 2008, which also saw a rise in fertility tourism, the Centre for Social Research (CSR) report said.A 2013 survey by the CSR along with the Women and Child Development (WCD) Ministry showed 68% of surrogate mothers in Delhi and 78% in Mumbai, were housemaids by profession.[32]This connotes that the women before entering into surrogacy were working at different places just for the sake of money and the business of surrogacy turned out to be expedition of it. The income of these housemaids inflated from approximately ₹18,000 per annum to ₹500,000 per annum (or to say, nine months). Therefore, surrogacy turned into a channel for the low income groups not only to finance their family and educate their children, but also to improve their standard of living.

Although there is a Surrogacy Regulation Bill, 2016 formulated but it has not been passed into the Act. Human rights Activist Pinki Virani, who maintains that Commercial Surrogacy is a Worst kind of patriarchy, when asked if the bill should be subsumed in Art Bill, posing as pro-wan choice said, "It's a little late for that. The Art Bill floating around is not in the interest of the patients, mostly women. In the name of an innocent unborn, it is too skewed in favour of international big pharms which plays puppet-master of the flourishing industry, which makes women, and men, feel incomplete if they do not, or cannot, have children. A fresh Art Bill have to be drafted and that will take a long time, as will its passing as law.”[33]

Conjunction of Commercial Surrogacy with Prostitution.

Commercial surrogacy and prostitution are the acts which are done by the women consensually and the women may confer it that they have freedom to choose any profession of their will. But in the end, it is all about money. If asked if they are comfortable doing such profession, the answer will be negative. It is important to know that Prostitution and Commercial surrogacy are a form of sexual trafficking and that the women are unaware of this fact; and if aware then helpless about it. The following table lists the essentials of human trafficking as per the definition given in Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Personsand shows how Prostitution and Commercial Surrogacy is a form of human trafficking:
 

Essentials of Human Trafficking Prostitution Commercial Surrogacy
(i) Recruitment, transportation, transfer, harbouring or receipt of persons Yes Yes
(ii) Threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits Yes Yes
(iii) Achieve the consent of a person having control over another person Yes Yes
(iv) Exploitation such as Sexual Exploitation, forced labour and services, etc. Yes Yes


There is no doubt that Prostitution is a part and parcel of Sexual trafficking but according to the table it can be asserted that Commercial Surrogacy can also be termed as a way of trafficking as there is fulfilment of all the essential conditions per se. There is Recruitment of Women who are ensured certain amount of money, to which they give consent, to provide services to the client in need. Also there is exploitation of them as there is an unfair treatment of providing them with very less money compared to the service they provide.White, theDirector of Education and Programs at the Centre for Bioethics and Culture, recently wrote in Forbes that surrogacy is the epitome of human trafficking, "nothing short of the buying and selling of children.” There may be an argument that the consent of surrogate is due to the compassion of giving a childless couple a child; and that it is not a forced service. This could be partly agreed, partly because she is kept away from her family for 9 long months and in isolation of everyone. Raising a child requires total bodily devotion and interdicting her from her loved ones adds a little to her psychological state.All essentials of human trafficking are fulfilled by both Prostitution as well as Commercial surrogacy, so can it be said thatCommercial Surrogacy is also a form of Prostitution; wherein the only difference it serves is the result expected in the end viz. Procreation of the Child?In both Prostitution and Surrogacy, the body of woman is hired in order to satisfy the end needs of the clients. The woman rents out her body for a specific period of time in order to achieve a specific sum of money agreed upon.In prostitution it is for few hours whereas surrogacy lasts for eight or nine months. Also, in case of dissatisfaction by the clients, the clients may pay them lesser. Similarly, in surrogacy if miscarriage happens, money is paid for a period up to which she gestated. Prostitution is neither legalized nor criminalized in India neither is the surrogacy.However, we should not entirely ties knots of surrogacy with that of prostitution; as, in surrogacy the woman has right to back off whenever she wants to, but in Prostitution it is not so. There is hardly any alternative for rescue. A surrogate can return to her home after the delivery of the baby but the life of prostitutes end in the brothels. Prostitutes are looked down upon but surrogates are highly praised for giving gift of life to someone in need.

Effects of Legalization and Criminalization

The question which has been in judicial debate for a long time is:‘Whether Prostitution be legalized or criminalized?'Well, criminalization of Prostitution will do little for the society. As we know there are thousands of prostitutes who are engaged in this profession. Taking away their profession would lead in rise of poverty. Being into prostitution for a longer time makes it is difficult finding new jobs as they are uneducated and unskilled and have least knowledge of the world outside. Also, criminalization of it will open doors of increment of illegal sex scams and make all women vulnerable to violence. Prostitution has been a mode by which the patriarchs enforce power over the prostitutes to show their dominancy. If these are removed or banned from the society, there will be more instances of rape on common women. In a way, the prostitution saves a number of women from horrendous crimes such as rape, molestation, etc. There shouldn't be complete legalization of Prostitution as it will pave way for extensive smuggling of women in it. Nonetheless, there should be laws framed which would protect the prostitutes from rape and violence by the clients and imposition on the executive as well as judicial authority to take speedy actions on such complaints. Legalization of prostitution will also usher in more revenues in the government funds. Talking about the appropriate effects on Surrogacy's statuson passage of the Surrogacy Regulation Bill, it will surely decrease the Medical tourism as the Bill states that anyone indulged in the act of Commercial Surrogacy or advertisement of the same or carrying out racket of supplying gametes for surrogacy will be an offender; punishable with imprisonment of not less than 10years or fine or both (Section 35(2) of the Bill). The bill only supports altruistic surrogacy and commercial aid shall be restricted only for the service provided during gestation period. If the Bill becomes an Act, it will affect poor women's life. There will be stability of their condition and nil hopes of improvisation of their standard of living. However, there shall be less exploitation through this and surrogacy will be, in a true sense, an act in good faith and selflessness.

End-Notes
[1]Beyond Flesh, Preface
[2]Atharveda 14.1.6
[3]Rigveda 3.31.1
[4]Yayurveda 16.44
[5]Arthashahtra 2/213
[6]Ibid. 3/8
[7]Ibid. 3/11
[8]Ibid .2/215
[9]More at nirmukta.com/2011/08/27/the-status-of-women-as-depicted-by-manu-in-the-manusmriti
[10]Torri, Maria Costanza (2009). Abuse of Lower Castes in South India: The Institution of Devadasi.Journal of International Women's Studies, 11(2), 31-48.
Available at: http://vc.bridgew.edu/jiws/vol11/iss2/3
[11]More history atDkhar, Umeshwari, Devadasi: A Sex Trafficking (November 30, 2015). Available at SSRN:https://ssrn.com/abstract=2696871orhttp://dx.doi.org/10.2139/ssrn.2696871
[12]Fischer-Tine, Harald (2003). "White Women Degrading Themselves to the Lowest Depths': European Networks of Prostitution and Colonial Anxieties in British India and Ceylon ca. 1880-1914". Indian Economic & Social History Review.
[13]Kannabiran, Kalpana (1995). "Judiciary, Social Reform and Debate on 'Religious Prostitution' in Colonial India". Economic & Political Weekly
[14]Taken from Ukessays.com/essays/anthropology
[15]Manusmriti9/137
[16]Ibid. 9/138
[17]Ibid. 9/59
[18]Ibid 9/70
[19]From https://www.scribd.com/doc/20167904/ADOPTION-IN-ANCIENT-INDIA
[20]https://writingsonsurrogacy.wordpress.com/tag/first-ever-traditional-surrogacy/
[21]Treatment was carried out in the hospital named Oldham General Hospital along with Dr. Patrick Steptoe. He was not awarded with Noble prize as it is a given after the death.
[22]IVF (In vitro Fertilization) -is a process offertilisationwhere aneggis combined withspermoutside the body,in vitro("in glass"). The process involves monitoring and stimulating a woman's ovulatory process, removing anovumor ova (egg or eggs) from the woman'sovariesand letting sperm fertilise them in a liquid in a laboratory. The fertilised egg (zygote) undergoesembryo culturefor 2–6 days, and is then transferred to the same or another woman'suterus, with the intention of establishing a successfulpregnancy. (source: Wikipedia)
[23][(2008) 13 S.C.C. 518]
[24]Reasons include woman survivors of natural disaster, women deserted by their family, women released from jails, woman survivors of terrorist attacks, etc.
[25]http://www.worldbank.org/en/news/infographic/2016/05/27/india-s-poverty-profile
[26]United Nations Organisation on Drugs and Crime
[27]To know more, refer documentary : ‘Born Into Brothels'
[28]Section 2(h) of Immoral Traffic (Prevention) Act states "public place" as any place intended for use by, or accessible to, the public and includes any public conveyance (such as educational institution, places of historic importance, places of worships, parks, hospitals, etc.)
[29]Watch Clip from 11:34 athttps://youtu.be/olvAzLmiTfU
[30]India's booming surrogacy business,The Guardian,Dec 30, 2009
[31]India's unregulated Surrogacy Industry,by Priya Shetty,November 10, 2010
[32]The issues around Surrogacy, Shalini Nair,Indian Express,November 2, 2015
[33]Surrogacy Regulation Bill,First Post,Jul 22, 2017

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