Commercial Surrogacy.

Author: Dhruvi Bambal, Campus Law Center, Delhi University.

About:

Reproduction is crucial for the sustained existence of humanity on earth. Having a family is recognized as a virtue in most of the societies while being infertile is anathema to society. Mythological epics like Mahabharata and Ramayana are perfect of the folklore about passion for having children. Not being competent to have kids is a social stigma. As the society progressed and legal system strengthened its roots adoption became an option for the childless couples which furnished the opportunity to fulfill their desires. Unfortunately, this method could not go a long way for those who have an inclination to have their own genetic offsprings. Also, the bureaucratic handling and societal attitude is a deterrence for couples.

As the human rights jurisprudence is expanding it has expounded right to privacy, Right to Personal liberty, Right to Procreation as inherently fundamental to human beings. The advancement of Medical Sciences has proved to be a blessing to mankind. Now humans can reproduce by many unconventional methods such as Artificial Insemination, In-vitro Fertilisation, Surrogacy have revolutionized the reproduction methods. These technologies are collectively known as Assisted Human Reproductive Technologies or Artificial Human Reproductive Technologies (ART). Such technologies are a boon not to the infertile couple biologically,  but also for people facing medical complications. It has also created hope for new social situations arising in the society like a same-sex couple, a single parent, death of a partner, etc.

Surrogacy has emerged as the most favored methods in the recent past,  notably by the rich to have children. From Shahrukh Khan to a single parent like Karan Johar have set an example for the Indian society. Surrogacy is an arrangement between the couple and a woman who agrees to become pregnant then artificial insemination. After the child is born the surrogate relinquishes her parents right over the child and hands over the child to the legal and parents. The arrangement can be formal in the form of a contractor it can be casual, based on an understanding between the parties. It can be divided into groups such as altruistic or commercial. In altruistic surrogacy, the surrogate or the proxy mother receives no monetary remuneration except some favors as a family.

Commercial surrogacy Is a method in which the surrogate mother gets paid for chartering her womb for the childless couple.  Commercial surrogacy has been criticized universally as it takes away the human rights of the underprivileged woman. It is contributing to the commodification of a woman and dragging a woman into slavery. India has risen as a market for commercial surrogacy lately as financial gain is an incentive.  She receives a fee or an honorarium for bearing the child of the commissioning parents.

Social ramifications of this practice

The horrors of commercial surrogacy in India are not unknown. Commissioning parents give up the child if it is not of the expected sex or has a physical impairment. If the twins are born then one is preferred leaving others. Sometimes the unscrupulous doctors can infuse multiple embryos without notifying the parents. The other child is forced in the black market. Sometimes women can be treated unfairly and end up getting less than what had been promised. It is not just the medical condition but rich people are turning to it because of the cheap facility possible. Experts claim that rich women don’t want to have by herself because that can make her look ugly. Alas, we cannot refuse that” the handmaid’s tale” is not just the dystopian future, it is the dystopian present.

The Indian Council of Medical Research (ICMR) guidelines

The country did not have any statutory backing for surrogacy. So the instruction which legalized the practice in the aftermath of such alarming concerns. The Indian Council of Medical Research (ICMR) laid out guidelines. The guidelines defined surrogacy as an arrangement in which a woman carries a pregnancy that is genetically unrelated to her and her husband, with the intention to carry it to term and hand over the child to the genetic parents for whom she is acting as a surrogate. If ART is used with the consent of the partner, it would not amount to adultery but if consent is not taken from husband then it can be a ground of judicial separation. With the objective setting ethical practice of ARTs, it had certain provisions for the practice of surrogacy also.

The guidelines state –

1. a surrogate mother should not be over 45 years of age.
2. no woman may serve as a surrogate more than thrice in her life.
3. The ART hospital must assure that the woman meets all the testable criteria to continue a successful full-term pregnancy.
4. In an instance when the surrogate is a relative, the relative should belong to the same generation as the woman desiring the surrogate.
5. An oocyte donor cannot act as a surrogate mother for the couple to whom the oocyte is being donated.
6. A surrogate mother must register as a patient and as a surrogate in her own name and provide all the necessary information about the genetic parents such as names, addresses, etc.
7. There must be informed consent by the surrogate and it must be witnessed by one who is not associated with the clinic.

(source: http://shodhganga.inflibnet.ac.in/bitstream/10603/102125/11/11_%20chapter%203.pdf )

The Guidelines did not put a ban on single or unmarried women to carry out the use of ART for having children. However, it was not apparent whether a contract could have any legal sanctity. Since the guidelines were nonbinding it failed to have a deep impact and shape the this into an ethical one. It could not check the exploitation of poor women. The Law Commission of India in its 229th report recommended a restriction on commercial surrogacy. A draft ART (Assisted Reproductive Technology) Bill was also formulated in 2010 with the purpose to regulate the ART industry, as there was no regulatory body or government control. However, the bill failed to become legislation.

The Surrogacy (Regulation) Bill, 2016

The intention of the Bill is to stop commercial surrogacy but at the same time, the Bill proposes to regulate surrogacy by instituting appropriate authorities at the Central and the state level. The Bill bans commercial surrogacy and recognizes the process simply by close relatives for “altruistic” reasons. Advocators of the bill are praising it as it contemplates to hold “fashion surrogacy”.

Drawbacks of the bill

The bill is based on the premise that women are always exploited and commercial surrogacy is bad for the welfare of poor women. It might be a wrong presumption.  Women otherwise have to work in factories for hours which are windowless, their children are loitering around for hours. Why would she not prefer surrogacy over working in a factory? Global studies provide evidence about how some women enjoy surrogacy, that they find the act of gestating and gifting a child to another to be much more meaningful. (Source: https://www.bloombergquint.com/opinion/surrogacy-regulation-bill-cause-for-congratulation-or-concern#gs.hfaXzyL5 )

1. Patriarchal persists

A “close relative” is not defined but one may assume this implies a sister or sister-in-law. There is no evidence-based study to prove that Altruistic intra-family arrangements, that do not involve financial exchanges will be devoid of exploitation. It is presumed that the family woman is always sacrificial. Household setup may even block the news going out of the family By closing reproductive labour at the household level. Hence It does not always mean that the woman has made a free choice.

2. Discriminatory premise

If, suppose a woman does not have a Women in her family it means she will not be able to have children ever in her life especially women suffering from actual structural infertility such as the absence of a womb or uterine abnormalities. The law also prohibits homosexual couples from commissioning surrogates mandating that the couple should be a man and a woman who have been married for at least 5 years. That means a couple will have to wait for 5 years to commission a surrogate even when they are aware of their medical situation. The does not sync with the latest social development and constitutional morality including the decriminalization of homosexuality by the Supreme Court recently.

3. Non-alignment with international laws –

India can become a black market for trading women for surrogacy. India can lose potential medical tourism. Surrogacy cannot stop, and the couple would look for other avenues. It would be more discriminatory for poor women to go from having a stable source of income to nothing at all.

Conclusion

Humans may make reproductive choices subject to a condition it does not bring to the exploitation of others. If the exploitation is the reason then,  it is again true that women are equally abused within their homes. The right to reproduction is a fundamental human right and the state cannot deny a human his right to have a biological child of one’s own, lawfully. Marriage is clearly a personal decision and segregating the beneficiaries of surrogacy based on one’s sexual orientation or marital status is discriminatory. The industry needs better administrative regulation. This law has further victimized even greater number in the name of protecting a few.

However, on the other hand, It can still be argued that barring commercial surrogacy is ethical as poor women who often become the victim of Agents during the surrogacy process will be saved. The unregulated industry will be regulated therefore the chance of crime like abandoning the surrogate baby and mother will reduce to a large extent.

Bibliography

1. https://www.livelaw.in/surrogacy-regulation-bill-2016-critical-appraisal/
2. ( https://www.aljazeera.com/news/asia/2014/03/indian-surrogate-mothers-suffer-exploitation-20143276727538166.html )
3. (https://feminisminindia.com/2018/01/23/surrogacy-india-debates/ )
4. https://www.livelaw.in/columns/is-banning-commercial-surrogacy-the-right-thing-to-do-141862