Commercial Surrogacy- An Introduction A surrogate motherhood is one in which one woman bears and gives birth to a child for a person or a couple who then adopts or takes legal custody of the child. The word 'surrogate' literally means 'substitute' or 'replacement'. A surrogate mother is therefore a 'substitute mother' who, for financial and/or compassionate reasons, agrees to bear a child for another woman who is incapable or often less willing to bear a child herself.
Medical innovations in the field of assisted reproductive techniques such as donor insemination and embryo transfer methods has made surrogacy a much easier and desirable option and many people are opting for the same, sometimes just out of the sheer amount of convenience associated with it. Taking advantage of the advanced medical facilities, they seek alternative solutions like Assisted Reproductive Technology (ART), In-Vitro Fertilization (IVF) and, Intra Uterine Injections (IUI), in the hope of having a child of their own.
Commercial surrogacy operations are carried out by ART clinics that have come up in different parts of the country.
India: the hub of commercial surrogacy India is fast becoming the surrogacy capital of the world with couples from both the developed and developing countries flocking to it in the hope of realizing their dreams of parenthood through an easily affordable surrogate mother. Known as "reproductive tourism", an important sub-set of the medical tourism industry, commercial surrogacy has become a USD 500 million industry in India. The Confederation of Indian Industry states that surrogacy generates $ 2.3 billion a year.
In the rapidly globalizing world, the growth of reproductive tourism is a fairly recent phenomenon as increasing number of infertile couples especially from the west, are looking for surrogate mothers in India where an English-speaking environment and services are attractive incentives for those exploring surrogacy as a fertility option.
Most Indian IVF clinics also have a strong internet presence which helps them attract patients from all over the world. It is reported that almost half of the children born through surrogacy in India belong to non-Indian clients or foreign intending couple.
Medical clinics providing facilities for IVF facilities and other assisted reproductive techniques are mushrooming in both rural and urban areas of virtually every state in India. Particularly, the town of Anand in the state of Gujarat has become the epicenter of the surrogacy industry and also being touted as the global surrogacy capital of the world.
Causes There are various factors that make India the global destination for surrogacy. Cheaper cost of surrogacy treatment, abundant availability of poor women willing (or rather viewing it as a means of earning) to be surrogate mother, lack of strict regulations on surrogacy, easier entitlement to parenthood, waiver of custody, guardianship rights by surrogate mother, enforceability of surrogacy agreement that attracts foreign couples to avail surrogacy in India.
The strongest incentive for foreigners to travel to India is most likely to be the relatively low costs involved in the process. The fees for surrogates are reported to range from $ 2,500 to $7,000. The total costs can be anything between $ 10,000 and $ 35,000. This is a lot less than what the intended parents pay in the United States, where rates fluctuate between $59,000 and $80,000.
Issues surrounding Commercial Surrogacy
PsychologicalThe surrogate mother feels some sort of alienation once she relinquishes the child she nurtured for so long. This is called as a change of perspective that many surrogates experience as their pregnancies develop and this is where a complex range of psychological issues emerge.
These surrogate mothers, initially, feel that this is simply a form of physical labor but later on develop this thinking that they are expecting a child that is so closely tied with them, with the disturbing belief that the same does not belong to them. She is likened to a 'human incubator' for someone else's child. It is believed to destruct the relationship between expecting mother and her pregnancy. Surrogacy has been accused of failing to perceive the subtle and poorly understood bond between mother and unborn baby.
Ethical and SocialOn every aspect related to surrogacy, there are bound to be differing views. According to some, surrogacy allows women to be agents of control over their own bodies; it gives them bodily autonomy to do what they wish to with their bodies. On the other hand, some believe that the practice is unethical and motherhood is too divine to be a commodity of sale.
Ethical issues pertaining to surrogacy are centered on issues like whether surrogacy is a form of exploitation of labor? Although labor is exploited to earn money, yet, many insist that reproductive labor is different from other forms of physical labor and pregnancy, thus, should not be a form of alienated labor.
People in favor of commercial surrogacy; mainly belong to the group of "liberal feminists" who advocate for "reproductive liberalism." They argue on the basis of the notion of "autonomy" or "choice." The surrogate has the right to make a decision about her own body and reproductive capacities.
A counter view is projected by socialists feminists who argue that surrogacy instead of giving women control over their bodies, in fact, serves the opposite purpose. It reduces the value of women merely to her wombs and her reproductive labor. Further, this leads to commodification, medicalization and technological colonization of the woman.
However, people who comment on surrogacy from an ethical and moral perspective and accuse it of distorting the cultural meanings of motherhood and kinship, often tend to forget that far significant than these aspects is the issue of "subjugation" of the surrogate mother.
In India, the availability of a large number of surrogates can be attributed, not to the factor of "choice," but to that of "compulsion." This compulsion may not be from her families. She may have herself consented to be a surrogate. Yet, one cannot overlook the underlying factors of compulsion like poor standard of living, no alternative sources of income, social ostracism, etc.
Although, commercial surrogacy attracts these women due to its lucrative pay, yet one cannot read the Third World surrogate's experience as empowerment simply on the grounds of choice/decision autonomy without going into the issues of consent as this leaves out the scope for addressing the oppressive socio-political conditions (both local and global), in which she takes up and lives out her identity and sense of agency as a surrogate.
Being a surrogate deprives a woman of her identity, one of the basic pre-requisites to empowerment. Anonymity is maintained by the surrogate due to fear of social stigmatization that is highly prevalent in a conservative society like that of India.
In India, a significant number of surrogates come from groups that are disadvantaged in terms of class, caste, education, etc. The patriarchal structure of society in India believes this to be a "dirty work" and thus these women have to struggle hard to break that stigma attached to surrogacy and thus they prefer anonymity.
A country like India that is rooted in strong values and ethics discards such practice. Also, a couple not able to conceive a child of their own is looked down upon. Surrogacy, in such a case, is a viable option for such infertile couples. However, these surrogate mothers who are harbingers of hope for such couples are treated as "disposable objects."
Many Indians associate surrogacy with paid sex-work as pregnancy outside marriage is condemned and the comparison of surrogacy to prostitution further stigmatizes the surrogate women. Such stigmatization forces many surrogates to spend their pregnancy months in surrogate hostels away from their families and communities.
LegalCurrent Legal Framework: Currently, surrogacy is being regulated by a set of voluntary guidelines issued by the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS) entitled "National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India" in 2005 which provides, amongst other things, that the surrogate mother is not to be considered as the legal mother, and the birth certificate should be made in the name of the genetic parents. As these are simply guidelines, they are not legally binding as they have not been ratified by the Indian Parliament yet.
In the case of Baby Manji Yamada Petitioner v. Union of India & Another (2008), the Supreme Court of India held commercial surrogacy to be legal in India.
Baby Manji was born through a surrogate mother in Gujarat and the intending parents were from Japan. However, before her birth, the parents, the Yamadas, divorced. Mrs. Yamada refused to take her and although the husband was willing, however, Indian law does not law single men to acquire custody (under Guardian and Wards Act 1890). Moreover, Japan did not recognize commercial surrogacy and India does not recognize dual citizenship. Thus, Baby Manji became the first "surrogate orphan" of the world.
Ultimately she was issued a visa by the Indian Government on humanitarian grounds. This case raised the need to have a proper legal framework that looks into all these issues.
Another pertinent case is the case of Jan Balaz v. Anand Municipality (2010), a German couple Jan Balaz commissioned surrogacy availing donor eggs and surrogate mother, the child was biologically related to Mr. Balaz through donated sperm, resulting in the birth of surrogate twins.
Subsequently the German consulate refused to issue passports to the surrogate children based on the German law which strictly prohibits surrogacy and does not recognize surrogacy as a means of establishing parenthood.
Accordingly, the Balaz's had no legal affiliation to the children. Eventually, the matter reached the Supreme Court which requested Central Adoption Resource Agency (CARA). CARA is an autonomous body under the Ministry of Women & child Development, Government of India. It deals with inter-country adoptions in accordance with the provisions of the Hague Convention on Inter-country Adoption, 1993, ratified to by the Government of India in 2003. They requested the German authorities to make an exception only in the particular case on humanitarian ground considering the child welfare and facilitate adoption for these twins. Accordingly, these surrogate twins were adopted by the German couple and they were taken to Germany.
These cases opened a plethora of unresolved legal issues as the Court has not laid down any guidelines but provided for adoption as a provisional measure for saving the surrogate child from being rendered Stateless and parentless.
Malpractices by ART Clinics As a consequence of the laxities of laws, many ART clinics are resorting to malpractices to make easy money. Their licenses and knowledge and expertise in this field go unchecked and there have been several instances of malpractice that highlight the grey are under which these clinics operate.
These clinics resort to hormone injections and other methods to increase the ovum-producing abilities of the donors leading to high risks of cancer.
Some clinics work through a network of brokers who target the poor illiterate village women and acquire their consent to become surrogates but pay them extremely low compared to what they charge from the commissioning parents.
Prior to the implantation of the embryo on the surrogate mother, the gamete – spermatozoa or the ooctye has to be handled outside the body that requires proper expertise or else they adversely affect the recipient.
The ART Bill, 2014 While a bill to regulate surrogacy has been pending since 2008, The ART Regulation Bill, 2014, also known as Surrogacy (Regulation) Bill is pending approval. Salient features of this Bill are:
The Government of India in 2015, in response to 14 specific issues framed by Justice Ranjan Gogoi and Justice N. Ramana of the Supreme Court, in a matter related to commercial surrogacy, has through an affidavit, made its stand clear whose contents form part of the current Bill.
The Government wants a ban on commercial surrogacy and prefers only "altruistic surrogacy" i.e. surrogacy on compassionate grounds where no monetary exchange is involved except for the medical expenses.
According to the Government, only needy, infertile, married couples or foreigners married to Indians (for at least two years) are qualified to avail surrogacy services only after a proper examination by a competent authority of their infertility. LGBTs, single men/women and live-in couples cannot avail these services.
The view of the Government is based on the ethical stand that a child is not the product of a transaction and motherhood must not be commodified. Also, it has been done so to protect the dignity of womanhood and prevent the trafficking of human beings and the sale of a surrogate child.
As per the Bill, intending parents are legally bound to accept the child irrespective of any deformity that the child may have.
The intending couples are also required to produce a certificate that the child born through surrogacy is genetically theirs and they will not indulge the child in any pornography or pedophilia.
As per the Bill, commission parents are supposed to bear all medical expenses of the process.
The Bill also provides for the setting up of National and State Boards for ART Clinics and their mandatory registration to check their malpractices.
If one of the parents is a foreigner then the child born through surrogacy shall be granted Overseas Citizenship of India under Section 7A of the Citizenship Act, 1955.
The Union Home Ministry has instructed Indian missions and foreigners regional registration offices (FRRO) not to grant visa to couples intending to visit India for surrogacy.
The stand of the Government has other reasons behind it. For instance, health issues like a baby is supposed to be breast-fed by its birth mother for 6 months.
ConclusionCommercial Surrogacy is a multi-faceted issue.
It is not clear if banning the practice will stop the exploitation of women. Women are exploited in different parts of the country in different ways. If prostitution is legal (although in a limited way), why cannot women be surrogates if they are fine with it and gets well-paid?
Also, banning is not the solution as this may lead to an underground black market. Recent reports state that many Indian clinics have already moved to Cambodia, a country with ambiguous surrogacy laws and a visa-on-arrival facility for Indian nationals.
Moreover, regulation is the need of the hour and not a blanket ban. People may find other locations to continue. Also, on moving to locations like Cambodia, where laws are lax, surrogate mothers become more vulnerable. When their rights are abused or they are not properly looked after, there is no refuge in the form of law for them.
Well India is the country of blessed couples having their own ability to carry on family life and if at all there are some short comings in either side of couples, that could be corrected and set right by specialist doctors in that field. Commercial surrogacy is an imported concept from other countries, wherein the couples won't have time for love making and other reasons which one cannot reveal to others and thus they hire a woman with total consent to bear a child for an agreed amount. But in India the would be mothers have love and attachment to the growing up child in the womb and they won't part with the child and one can understand the mentality of such mothers even after having agreement on commercial surrogacy. That is the reason why such arrangement may not have fruitful outcome and in many cases end up with legal tangle.