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Surrogacy in India

With the advancements in science and technology the human race has achieved a lot of things which were unachievable or even unimaginable to our ancestors three centuries ago. It is evident that almost all aspects of life are highly dependent on advancements in science and technology. From nuclear warheads to eradication of some deadly diseases are contributions of an interdependent evolution of these two disciplines. One of such contributions of science and technology is surrogacy.

Warnock committee has defined surrogacy the medical procedure by which a woman (surrogate mother) becomes pregnant and gives birth to a baby in order to give it to someone else who cannot have children.[1]

As the definition suggests it is a medical procedure but it has a wide variety of consequences with regard to morality, ethics and legality. Besides briefly explaining what surrogacy is, why it is controversial, policies of different countries on surrogacy, the main aspect which I would try to describe is the legislations which India should form to handle this relatively new procedure.

Let us consider the story of Rumpelstiltskin where an idea of handing over a baby on the basis of a contract is mentioned in a comical way. According to Barbara Katz Rothman, the mentality of majority surrogate mothers is exactly like that of the mother in the story.[2]

She was emotionally attached to the baby so much that she had to break the contract made with Rumpelstiltskin. Most of the readers sympathized with the mother but if surrogacy was the idea behind the case there, then the mother would have handed over the baby to Rumpelstiltskin. This is the exact reason why an experienced psychologist like Ruth Macklin was against surrogacy.[3] She found out that some of his patients suffer from this kind of a psychological depression. Majority of the arguments from psychologists such as Karen H Rothenburg are against the idea of surrogacy.[4

 Firstly, the separation of surrogate mother from child does affect the mother in an adverse manner and secondly when the child realizes that he/she was born out of a financial deal rather than love. Philanthropists like Lori. B. Andrews also share a same view.[5]

The word surrogate originated from the word Latin subrogare which means appointed to act in the place of.[6] Surrogacy, in technical terms, can be broadly categorized into two, gestational surrogacy and traditional surrogacy.[7]

An explanation for both these procedures without the use of some jargons from the field of medical science is difficult. Gestational surrogacy is also known as host or full surrogacy where the pregnancy results from the transfer of an embryo created artificially by combining an egg and a sperm in a medical laboratory, and then transferring this embryo to the uterus of the surrogate mother.[8]

This procedure is called in vitro fertilization [IVF]. So the resulting child is genetically unrelated to the surrogate mother because there is no ovum of the surrogate mother involved. Traditional surrogacy which is also known as partial, genetic, or straight surrogacy which involves sperm from the intended father and an egg from the surrogate.[9] Here fertilization is usually done by a deliberate introduction of sperms into the surrogate mother's uterus or cervix for the purpose of achieving a pregnancy through in vivo fertilization by means other than sexual intercourse.[10] This is called artificial insemination. Another procedure is placing some selected sperm cells on the basis of high motility inside a woman's uterus to facilitate fertilization.[11] This is called intrauterine insemination.[12]

So in both these procedures of traditional surrogacy the child will be genetically related to the surrogate. All procedures are meant to be done only by trained medical practitioners as these are very complex procedures.

Another way to categorize surrogacy is based on an economic perspective and it is divided into commercial and altruistic. Altruistic surrogacy is where a surrogate mother agrees to gestate a child for intended parents without being compensated monetarily in any way.[13]

All the surrogate pregnancy related expenses, such as health insurance, maternity clothes and prenatal vitamins are still paid by the intended parents, but the surrogate mother herself does not take a fee in any way.[14] So there is no service charge for the surrogate mothers. Commercial surrogacy is the process in which an individual or couple pays a remuneration to the surrogate mother in exchange for her carrying and delivering the baby.[15] After birth, the child is handed over, to the individual or couple, either privately or through a legal adoption process.[16]

Couples with fertility problems, same-sex couples, single people who wish to be parents and those people who do not want to adopt are the most common types of people who seek surrogate mothers.[17]

Commercial surrogacy has been legalized by the Indian government in 2002. India is rapidly becoming one of the favorite destinations of people who want surrogate children. So far the Indian perspective is concerned; it has left no doubt with the room that Indian surrogates have been increasingly popular with fertile couples in industrialized nations due to the relatively low cost.[18] Just like colonialism, cheap labour, high numbers and uneducated people who are ignorant about their own rights are the reasons for India becoming a hotspot of commercial surrogacy.

From a documentary on surrogacy, Can We See The Baby Bump Please?, it is evident that majority of Indian surrogate mothers come from a poverty stricken background and they are unaware of remuneration given and health care guaranteed to surrogate mothers from other countries.

At the same time, Indian clinics are becoming more competitive, not only in the matter of pricing, but also in the hiring and retention of Indian females as surrogates.[19] From these facts it is clear that commercial surrogacy is turning out to be one of the competitive businesses in India.

According to Christopher Hitchens, controversies regarding any issue start when the existing social constructs or religious laws or morality based on a majoritarian conscience is questioned by a technological or scientific advancement.

This is no different in case of surrogacy as well. Even though there are a few exceptions, almost all the religious scholars are against this. A lot of feminists and some legal scholars have raised their voices against surrogacy.[20] Majority of the things can be used properly or misused or even over exploited. From internet to the knowledge in nuclear physics are good examples for this claim. Commercializing surrogacy has created a lot of issues both legally and ethically. Abrahamic religions do not favour surrogacy and their scriptures have explicitly objected this.[21]

Even the contemporary religious heads of these religions are not in favour of this. Hindu religion has mentioned a lot of instances where idea of surrogacy was used. It is mentioned in the epic of Mahabharat and in many other Hindu scriptures as well[22]. Even though Hinduism mentions about the basic idea of surrogacy, Hindu Marriage Act which is followed today has not even implicitly talked about the issue. It can be assumed that since surrogacy is a relatively new concept, the makers of our constitution could not predict this procedure.

Even though we can dismiss the religious arguments against surrogacy, because these are irrational, some legal and ethical arguments should not be overlooked. Guardianship and identity of the surrogate child as well as the feminists’ concern on the rights of surrogate mother are very relevant to commercial surrogacy.
Different countries have enacted laws on surrogacy.

Currently, surrogacy, irrespective of commercial or altruistic, is illegal in Belgium, Netherlands, Japan, Hungary, Thailand, France, etc.[23] Certain countries like Australia and Canada have made commercial surrogacy illegal but they have allowed altruistic surrogacy. Other counties like U.S.A, U.K, Israel and most of the other developed countries have legislated strict laws for surrogacy which is altruistic in nature.[24] In all the states of Australia, the surrogate mother is regarded by the law to be the legal mother of the child and any surrogacy agreement giving custody to others is void and unenforceable in the courts of law.[25]

Usually couples who make surrogacy arrangements in Australia must adopt the child rather than being recognized as birth parents, particularly if the surrogate mother is married. Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state.

In March 1996, the Israeli government legalized gestational surrogacy under the Embryo Carrying Agreements Law.[26] Surrogacy arrangements are permitted only to Israeli citizens who share the same religion. Surrogates must be single, widowed or divorced and only infertile heterosexual couples are allowed to hire surrogates.[27]

So all these developed countries have really taken adequate care for preventing surrogacy from being misused. This is where India lags behind. It can be argued that India is a multicultural country with a lot of religions and hence framing laws will be a herculean task. However, in my opinion these laws are very much needed and the laws framed should be based on logic and reason rather than going back to religious scriptures. This should be the part of a uniform civil code and only then this can be considered as a progressive attempt or modernity.

According to The American Medical Association, commercial surrogacy is not desirable because its commercialization of a procedure which makes it more prone to misuse.[28] This is just like the case of organ transplants where the trafficking of organs have actually violated human rights. However, altruistic surrogacy should be the one to be addressed because the only moral way in which this process can be done is when the surrogate mother is helping a couple to have a child and without monetarily benefiting from it. Majority of the black market problems of surrogacy can be curbed if the economic aspect of it is considered.

In 2008, the Supreme Court of India in the Manji's case (Japanese Baby) held that commercial surrogacy is permitted in India with a direction to the legislature to pass an appropriate law governing surrogacy in India.[29] Baby Manji was created from the sperm of orthopedic surgeon Ikufumi Yamada, and an egg from an unknown (reportedly an Indian or Nepali) woman, the embryo was implanted into the surrogate's womb who carried the pregnancy to full term and gave birth to a healthy baby girl.[30] However, by then, Yamada and his wife had divorced and Baby Manji was both parentless and stateless, caught between the legal systems of two countries.[31]

At present the Surrogacy Contract between the parties and the Assisted Reproductive Technique (ART) Clinics guidelines are the guiding force.[32] Giving due regard to the apex court directions, the Legislature asked for the draft of ART BILL from a committee in 2008 which came into the parliament in 2010.

The bill was discussed and rejected by the parliament. After that some amendments were made but the parliament did not take an effort to debate and the legislation did not happen because of this. There was a bill on surrogacy separately and it was presented in the parliament by DR. Kirit Premjibhai Solanki, who is a M.P from Ahmedabad west of Gujarat.[33] However, it was also not discussed. From these two examples it can be inferred that our legislators are not very interested in bringing about laws regarding this potentially dangerous commercial activity.

On 15 October 2015, a Supreme Court bench containing Justices Ranjan Gogoi and N V Ramana said various issues related to surrogacy were not covered by any law and the government must take a holistic view and bring in a legislation.[34] The court asked the government to take a stand whether a woman who donates her egg in commercial surrogacy can be said to be the only mother or both surrogate and genetic mother can be said to be mothers of the child.[35] Solicitor General Ranjit Kumar said consultation process is on and the bill may be introduced in Parliament in a few months.[36]

The court said the law is also silent on the fate of surrogate child if the commissioning couple refuses to take child in case he/she is physically and mentally challenged. Court also asked the government to look into all those issues and incorporate provisions to regulate them in the proposed law.[37] Since this is a very new proposal, only time can tell when this is going to be a bill.

The recent case which addressed the citizenship issue of a surrogate child born in India from international biological parents was the case of an Australian couple from New South Wales who had twins - a boy and a girl - born to an Indian surrogate in 2012.[38] This has not yet reached a high court and its being discussed amongst the diplomats and the foreign affairs ministry of both countries because there are no legislations regarding surrogacy. The husband [sperm donor] approached the Department of Immigration in December 2012, saying that he and his wife only wanted to take the baby girl back home, explaining to officials that they could not afford to support both children.[39]

India does not have laws regarding the identity of surrogate children born here and Department of Foreign Affairs staff told the Australian couple that they could leave their son stateless if they did not apply for Australian citizenship for him.[40] The husband approached the Department of Immigration in December 2012, saying that he and his wife only wanted to take the baby girl back home, explaining to officials they could not afford to support both the children.[41] Furthermore, he also stated that they already had a boy and wanted to take the girl to complete their family.

In the contemporary times science and technology has progressed a lot so that even altering the genetic structure of a human embryo to change the behavior is possible. Even a child with certain desired characters can be brought up.

The problems with such procedures are they alter the natural way so much and it is highly probable that it may backfire. According to Bonnie Steinbook’s book, Ethical Issues In Modern Medicine, couples or single parents who want children should go for legal adoption and not surrogacy because the planet Earth is already overpopulated and majority of the population lives in poverty.[42] So the primary objective of childless parents should be to legally adopt rather than to go for surrogacy or for that matter any other forms of ART. Parents should be open-minded enough to accept children who does not have their own genes.

So surrogacy is an unnecessary process which can create a lot of moral, ethical and legal issues. Besides these, even human trafficking as well as violation of basic human rights will be other concerns. This procedure will be misused more than it is used. Even though banning this procedure can create a sort of black marketing, it can be curbed to a large extend. Especially in a country like India where social responsibility is prioritized over personal liberty.

So even if females are accepting to be surrogate mothers, they are doing it just for the monetary benefits and altruistic surrogacies are rare in India. The only option left for Indian legislators is to either ban it or allow altruistic ones. However, there should be strict punishments for doing a commercial surrogacy.

Choosing Family laws over contract laws as a paradigm for surrogate motherhood may seem a bit nonsensical because the former is based on scriptures and socially constructed morality and the latter is always subjected to amendments. However, the less progressive nature of family laws, based on patriarchal and chauvinistic scriptures, is a boon in disguise for religious people so that a lot of them refrain from carrying a child of another man. [43]

To conclude I would like to assert that a legislation on surrogacy is very much necessary now and if possible legal adoption should be considered as the alternative by the desired people. Altruistic surrogacy must be permitted with a governmental registration and strict laws should be made against the people indulging in misuse of this procedure. The parents desiring a child should take a moral responsibility to ensure that the surrogate mother’s post-natal period is safe and she is being given adequate care.

Indian laws on adoption are very strict and these laws must be made applicable even in surrogacy and if this is properly done then every legal loophole will be covered in such a way that surrogate motherhood is just like a prenatal adoption. So either a complete ban or altruistic surrogacy with very strict conditions are the possible solutions and commercial surrogacy must be banned.

[1]Mary Warnock, Warnock committee report on surrogacy1986 accessed 21 September 2015
[2] Martha Field accessed 22 September 2015
[3]Larry Gostin, Surrogate Motherhood: Politics and Privacy, ISBN 0-253-32604-4
[4] ibid
[5] ibid
[6] accessed 24 September 2015
[7] ibid
[8] Dr Olivas Alba accessed 24 September 2015
[9] ibid
[10] ibid
[11] ibid
[12] ibid
[13] Dr Nayana Patelaccessed 25 September 2015
[14]Carol A Crowe accessed 25 September 2015
[15] ibid
[16] ibid
[17] Alberta Cook,> accessed 26 September 2015
[18] ibid
[19] ibid
[20] William Crowley> accessed 26 September 2015
[21] ibid
[22]Ravikanth Balaram accessed 23 September 2015
[23] Dr Judith Areen accessed September 23 2015
[24] ibid
[25]Anthony Zurcher accessed September 27 2015
[26] ibid
[27] ibid
[28] Dr Steven J Stackaccessed September 30 2015
[29]Baby Manji Yamada v. Union of India, AIR 2009 SC 84; (2008) 13 SCC 518
[30] ibid
[31] ibid
[32] accessed 4 October 2015
[33] accessed 5 October 2015
[34] accessed 15 October 2015
[35] ibid
[36] ibid
[37] Amit Anand Choudhary accessed 15 October 2015
[38] accessed 5 October 2015
[39] ibid
[40] ibid
[41] Suzanne Smith accessed 4 October 2015
[42] accessed 6 October 2015
[43] accessed 2 October 2015

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