COMMERCIAL SURROGACY IN INDIA: COMMODIFICATION OF WOMEN
Author: Drutika Upadhyay
Hidayatullah National Law University, Raipur
In this paper, the author has discussed the issue of commercial surrogacy in India. The paper begins with a brief introduction to the concept of surrogacy where the author has discussed the meaning of the term ‘surrogacy’ and the types of surrogacy. An attempt has also been made to reflect upon the way society perceives women as being a part of the commercial surrogate market. The author then went on to explain how India has become the world’s favorite destination for commercial surrogacy and what are the push factors for young Indian women to be so readily available as a surrogate mother. In the third section of the paper, the author talks about the proposed legislative framework (The Assisted Reproductive Technology Bill, 2010) which aims at regulating the commercial surrogacy industry, establishing the liability of the adopting parents, and providing certain health and monetary benefits to the surrogate mother. The prominent case of Baby Manji has also been discussed in the paper which emphasized the need for a legislative framework in this particular industry. The fourth section of the paper explains why being a surrogate mother is a tough job in India by highlighting the social and legal challenges faced by a surrogate mother. In the fifth section, the author has made an effort to suggest some alternatives to the practice of commercial surrogacy. The final section of the paper discusses the conclusive remarks of the author.
Key Words: Commercial Surrogacy, The Assisted Reproductive Technology Bill, 2010, Surrogate Mother
Surrogacy we call it these days is nothing more than a belief that is based on the preconceived notions of a male dominated society, like ours, that the body of a woman is nothing more than a machine for the production of babies. No wonder that even in today’s modernized world such a thought process is prevalent under the name of surrogacy. As defined by oxford dictionary surrogacy is the practice of giving birth to a baby for another woman who is unable to have babies for herself. It is derived from the Latin word “surrogatus” meaning “appointed to act in place of”. In traditional surrogacy, the surrogate mother is impregnated with the sperm of the intended father thus making her both, the genetic and gestational mother. While on the other hand, in gestational surrogacy, an embryo fertilized through in vitro fertilization, is placed inside the surrogate mother’s uterus who eventually delivers the baby. The major reason why a number of couples opt for surrogacy is their infertility and incapacity to have babies. With the legalization of commercial surrogacy in India, the nation has become the favourite destination for infertile couples to have their desire for a baby get fulfilled. Another reason for India becoming the “land of surrogate mothers” is the easy availability of poor ladies who are willing to rent out their wombs for a petty amount of money and the lack of proper implementation of laws and regulatory mechanism regarding commercial surrogacy in the country. Taking legal aspects into consideration an unwed woman can definitely become a surrogate mother in India but her social status is no better than that of a prostitute when the social and ethical aspects of the same come into the picture. Like any other phenomenon, commercial surrogacy too, has its pros and cons. Firstly, supporters of commercial surrogacy claim that as surrogacy is a choice made by a woman herself regarding the use of her body it is a way of women empowerment and that it should not be banned as it would take away the right of a woman to make decisions for herself. But taking legal aspects of this phenomenon into consideration, one would find that there are certain restrictions imposed upon the contracting parties regarding not to reveal the identity of the surrogate mother. It is because of the kind of social stigma that is associated with it. Indian society, which is the best example of a patriarchal society, still sees women as a means of producing babies and fulfilling the bodily pleasures of a man. Secondly, nor does it only deteriorate the status of a woman in society, it also has certain health implications on the surrogate mother. On the one hand, where it establishes a genetic relationship between the child and the intended parents it can also cause serious physical distress for the surrogate mother. What happens many times is that more than one egg is fertilized in-vitro to increase the probability of survival of the baby in the surrogate mother’s womb. This might result in the birth of twins, triplets, or quadruplets and would require the commissioning parents to abort the rest of the babies. This has serious adverse implications on the health of the surrogate mother. Also, there is no provision for claiming compensation in case the surrogate mother falls ill or suffers from any kind of illness after the birth of the child. Nor anyone is held liable or accountable in case the surrogate mother dies once she is discharged from the surrogacy clinic. Furthermore, if some sort of disease or congenital deficiency is detected in the child inside the womb of the surrogate mother, the child is aborted and no compensation or financial aid is provided to the surrogate mother for the process of surrogacy which she had undertaken. These issues add to the woes of a surrogate mother as she is left with no means to support herself financially, physically and even emotionally.
The introduction of the Surrogacy (Regulation) Bill, 2016 in Parliament, in August 2016, was a much-awaited response to citizen voices and human rights groups calling for action in the unregulated sector of commercial surrogacy that placed the welfare of a section of Indian women and children at risk. Against the background of pre-existing guidelines and draft regulations that governed the assisted reproductive technologies landscape, this Bill is designed to shut the door on commercial surrogacy arrangements in India, bringing to an end the covert exploitation of women in third-party reproduction. Parliamentary Standing Committee Report No. 102 on the Surrogacy Bill was submitted in the Lok Sabha and Rajya Sabha on August 10, 2017, and the fate of the Bill was to be decided in the Winter Session of Parliament, 2017. At this point, it is still unclear whether the Bill will come up for decision in the upcoming session.
SURROGACY: A PROFITABLE MARKET IN INDIA
Surrogacy has made India a market for mothers. It all started way back in 2002 and since then India has become so famous in the field of surrogacy that it is now known as “Baby Factory” where babies could be bought and sold. Surrogacy in India is estimated to be a $2.3 billion industry. But according to the data of a United Nations (UN) backed body suggest that Indian surrogacy market is estimated at more than $400 million per year. There are various reasons as to why the surrogacy industry is able to spread its wings so rapidly in our country. Here are some of those reasons-
- LOW COST- One of the greatest things about the surrogacy market in India is its affordability without the quality of the service being compromised. Well-qualified experts are sought after by many overseas couples and the success rate is also at par with many of the developed nations of the world. The overall health cost including medical tests, medical reports, doctor’s consulting fee, etc. is much less in India making it a viable option for international patients to have their babies by means of surrogacy. In many western countries, surrogacy costs up to $120,000 whereas in India the total cost of having a baby through surrogacy is one-third of that. The total cost of surrogacy arrangements in India is around Rs 4 to 20 lakhs, depending on the IVF clinic.
- LENIENT BUREAUCRACY- Bureaucracy has a very important role to play in regulating the surrogacy industry flourishing in India. With this ever-expanding reproductive industry, there is still no legal provision or policy to safeguard the interest of the major stakeholders involved in this process i.e., the surrogate mother, the child, and the commissioning parents. But it seems that there is a lack of proper framing and implementation of the already framed policies. There is no such separate law regulating this industry. The Assisted Reproductive Technologies (Regulation) Bill, 2013 was tabled in the parliament but the same has not been yet passed by the government and is still pending. Currently, surrogacy is being regulated by the Indian Council of Medical Research guidelines, 2005.
- EASY AVAILABILITY OF SURROGATE MOTHERS- India has the largest number of surrogate mothers in the world. Apart from the population factor, economic needs of the poor families force various women to get into this job of selling their bodies and becoming mere reproductive machines. Financial instability of the weaker sections of the Indian society and low level of education especially among females is another important factor responsible for easy availability of surrogate mothers in the country. Renting out your womb with the sole purpose of making money out of it has led people to compare this concept of commercial surrogacy with that of prostitution. It is often referred to as “womb prostitution”.
- BETTER HEALTH CONDITIONS OF SURROGATE MOTHERS IN INDIA- Thehealth conditions of a surrogate mother in India are far better than the surrogate mothers of any other country in the world. Here in India, women are not used to habits like drinking or smoking or any other sort of addiction. In addition to it women in India are usually married between 21-35 years of age and already have a child. Therefore the surrogate mothers of younger age have a greater chance of successful pregnancy.
THE ASSISTED REPRODUCTIVE TECHONOLGY (ART) BILL, 2010
The drafting of the Assisted Reproductive Technology (ART)Bill, 2010 finds its roots in the “Baby Manji’s Case”. This case brought up the different issues related to commercial surrogacy in India. In this case, a Japanese couple used a gestational surrogate mother to have a baby but then decided to get divorced before the delivery of the child. The intended mother did not want the custody of the child but the father did. But at that very same time, Japanese law did not recognize surrogacy and the Indian law did not allow a single man to take custody of the child. However, in the end, the intended father was allowed to take the child to Japan and the custody of the baby was given to his grandmother. But this case proved to be a major breakthrough in bringing about the laws related to commercial surrogacy. Then in 2008 again, another case relating to the citizenship of the surrogate child attracted the attention of the judiciary. This led the Gujarat High Court to see through the urgent need requiring the enactment of legislation dealing with the issues arising out of surrogacy. The Act briefly discusses various issues related to commercial surrogacy such as exploitation of surrogate mothers by intermediaries, the unregulated functioning of Assisted Reproductive Technologies (ART) Clinics, legitimacy of the child, future of child in case of parent’s death and no claimant, rights of donors, the punishment and fine in case of violation of the provisions of the legislation, etc. The Act clearly states that no woman, either married or unmarried, below the age of 21 years and above the age of 45 years shall become a surrogate mother. She must not be biologically related to the child and the number of successful deliveries a woman can have has also been restricted to five. The Act requires the surrogate mother to relinquish, in writing, all her rights over the child which she may have had she been the biological mother of the child. The Act makes it a punishable offense for using paid intermediaries to obtain surrogate mothers. Moreover, there are certain provision to ensure that due care is taken of the surrogate mother and the child by way of ensuring the life of the surrogate mother and the child and also making the commissioning parents to take responsibility of the child even if the child is born with some kind of abnormalities. The Assisted Reproductive Technology (ART) Bill, also has certain provisions that safeguard the interest of the child born out of surrogacy. The Act protects the rights of the children by providing them the status of a legitimate child of their intending parents and providing them the right to have every information about the donor except for the personal identity of the donor once they have attained the age of 18 years. The Act made it compulsory for the Foreign Intended Parents to appoint a local guardian in the country where the child is born to look after the surrogate mother. The local guardian shall be legally obliged to take the delivery of the child and later hand it over to the adoption agency in case the commissioning parents or their legal representative fail to take the delivery of the child within one month of the delivery. In the entire transition process, the appointed local guardian will be responsible for the well-being of the child. In case, the child is taken up by the adoption agency or is brought up by the local guardian, the child will be given Indian citizenship. Another major contribution of the Act is that it has made it compulsory for all the ART clinics to register themselves with the Indian Council of Medical Research (ICMR) and then only they would be allowed to operate. They are also required to maintain the database of all the patients they cater their service to including the donor, the surrogate mother, the commissioning parents, and the treatment they use for them. All this information are required to maintain so that in times of need the child or the parent or the local guardian may easily access it by an appropriate order of the court. The Assisted Reproductive Technology (ART) Bill requires the Foreign Intended Parents to get a letter from the Embassy of their country stating that the child born out of surrogacy shall be granted the citizenship of that very particular country to which the commissioning parents belong. This provision is basically to ensure that the commissioning parents must reside in a country where commercial surrogacy is legal and it is easy for the baby to get a passport of that country. This provision was incorporated in the Act keeping in mind the instances where babies were left at the mercy of the state due to conflicting policies of the different nations regarding commercial surrogacy. In the aforementioned case of Baby Manji Yamada, the child was not recognized by the Japanese government as they had different provisions regarding surrogacy and India did not allow the single father the custody of the child as the intending parents got separated during the gestational period of surrogacy. The child got a passport on humanitarian grounds and was finally granted Japanese citizenship after a long-fought legal battle. Similarly, in the case of Jan Balaz the Indian government refused to grant citizenship to the child, born out of surrogacy in India, for a German couple. However, after having a conversation with the German government the child was granted exit visa. But these two cases made the Indian government realize as to how the conflict between two nations regarding surrogacy can leave a child stateless and also the need to implement and execute strict laws regarding surrogacy to safeguard the interests of all those who are involved in this process. Thus the current legal scenario regarding commercial surrogacy in India is not worth appreciating and it requires a series of stringent laws and policies relating to commercial surrogacy to be implemented in the country. The pendency of the proposed Assisted Reproductive Technology (ART) Bill, 2010 clearly shows the lack of seriousness on the part of legislature.
BEING A SURROGATE MOTHER: A TOUGH JOB IN INDIA
Women have always been considered subordinate to men in our society. In a male dominated society, like ours, being a surrogate mother is a tough and challenging job. In India, a surrogate mother has to face more social challenges than ethical and legal challenges. Being a mother of someone else’s child does not only create legal hurdles for the surrogate mother but also brings with itself something which can question the character and dignity of the woman becoming a surrogate mother. Some of the social and legal challenges that a surrogate mother has to face in India are discussed below.
Of all the challenges faced by a surrogate mother in India the most significant one is social challenges. Rather than resolving social conflicts commercialisation of surrogacy has created certain social barriers for a surrogate mother in India. Nor does it only brings with itself a kind of social stigma that every surrogate mother has to face but it also creates a kind of negative environment in the family in which the surrogate child is taken. Commercial surrogacy can change the way the child perceives his family ties, integrity and values. The individual identity of the surrogate mother is not to be revealed. It questions the child’s right to information about his parents. Present practices encourage a surrogate child to go ahead in search of the identity his parents instilled in him a sense of anger and shame against his social parents. Factors such as poverty, marginalization from labour and job market, lack of financial resources, low level of education and patriarchal social and family structures push a woman to undertake the procedure of surrogacy and puts her in the hands of intermediaries which eventually leads to her exploitation. As already discussed above India is seen as a “Baby Factory” in the world. Commercial surrogacy can be considered as a practice of buying and selling babies in the surrogate marker. This has led people to think of babies and surrogate mothers as mere objects that can be traded between the contracting parties. Surrogacy questions the right of the woman to make use of her body according to her own wish. But in an economically weak country like India, it is primarily the economic factors that drive most of the women into this trade market or into the so-called profession of “commercial surrogacy”. Apart from the social stigma associated with it, the commodification of women and babies, commercial surrogacy also creates a clear-cut class division in society. Going by the general trend, most of the commissioning parents belong to high class whereas the surrogate mother generally belongs to the low or working class. This has led to the development of the notion that high-class people take undue advantage of the poor or low class by using their bodies for their own benefit and paying them off by way of compensation. Commercial surrogacy not only proves a social challenge for the surrogate mother but also for the commissioning parents. Most of them try to conceal the fact that their child is born through surrogacy as they feel embarrassed that their child might be looked upon as not their own even if the child is completely brought up by the commissioning parents. Also, it requires the surrogate mother to emotionally detach herself from the child she is going to give birth to. But still, some cases have been reported where the surrogate mother refuses to give up the child. This creates a lot of hardship for all those engaged in this process i.e., the surrogate mother, the child and most importantly the commissioning parents. Instances are also there where the commissioning parents, later on, change their mind and are not willing to take responsibility of the baby. Above all it involves the risk of the life of the surrogate mother. Commercial surrogacy is just like “selling oneself” for the sake of money which is morally questionable. This has led to the creation of an image of women as a mere reproducing machine. Many aspects of commercial surrogacy can be related to prostitution in some way or the other.
The process of surrogacy involves a lot of legal technicalities in it. The most important legal issue involved in this process is that of citizenship and nationality of the child. As the world’s favorite surrogacy destination a lot of infertile couples from all around the globe visit India in order to fulfill their desire for a baby. But in spite of such a big market existing for surrogacy in India, one would be shocked to know that there is no separate law for surrogacy in India. An attempt for the same was made in 2010 through the Assisted Reproductive Technology (ART) Bill, 2010 which was introduced in the parliament but has not been passed by the parliament yet. If we talk about the legal aspects of surrogacy, the case of “Baby Manji Yamada” is of utmost importance. In this landmark case, a Japanese couple opted for surrogacy. But before the baby could be brought in this world, the couple got separated and the question of custody of the child arose. The intended mother was not interested in the custody of the child but the father wanted to have the child. It was also found that the Japanese government did not recognize the concept of surrogacy and at the same time the Indian government would not allow the single father to obtain custody of the surrogate child. Afterward due to mutual conversation between the governments of both countries finally the child was awarded Japanese nationality and the custody of the child was given to his grandmother. Such a situation arises basically due to a lack of proper framing and implementation of policies and not so active role of bureaucracy in regulating the phenomenon. Also, there are no legal provisions as to who will take responsibility of the baby in case he is born with some congenital deficiency. Furthermore, if the child needs to be aborted in the middle of the process no compensation is to be paid to the surrogate mother for the services she has rendered. No one is held accountable if the surrogate mother falls ill or suffers from any kind of health disorder. Therefore, in order to overcome all these adversities we need a well-framed and strictly implemented set of policies and an active bureaucracy that would help regulate such practices.
ALTERNATIVE TO COMMERCIAL SURROGACY
Although commercial surrogacy is like a boon to all those couples who are incapable of having a baby of their own, it is not the only option available to them. As we have already discussed a lot about the pros and cons of commercial surrogacy and the various issues related to it. Here we will be discussing the various other alternatives to commercial surrogacy such as adoption, fostering, fertility treatments etc. We will be dealing with them in greater details below.
- ADOPTION- Adoption is one of the best alternatives to commercial surrogacy. Nor is it only inexpensive but it is way better than commercial surrogacy in many other aspects. It provides a needy child with a roof over his head. Through adoption the child does not only get a home to live in rather he gets a family, a good environment to survive where he is brought up as a good human being. Instead of spending heavy amount of money to get a child from surrogate one can adopt a child and help him overcome his painful past experiences that come from being abandoned, abused, neglected or orphaned. The adopting couple can provide a child with a soothing family environment and help him move on in his life. Apart from all this, adoption has certain advantages for the surrogate mother as well. It saves her from the entire painful process and the hardships she has to go through during the gestational period in commercial surrogacy.
- FOSTERING- Fostering may seem a difficult option than surrogacy and adoption but it can offer a better choice to many of the infertile couples who opt for commercial surrogacy as their last resort and fulfil their dream of parenting a child in need. Being a foster parent need not require more financial resources in raising a child than in commercial surrogacy.
- FERTILITY TREATMNTS- Theprimary factor behind commercial surrogacy is the infertility of the intending parents or any one of them. But it is not as if such infertility problems cannot be cured. With the development of science in modern times there is a solution to every problem. It is also possible that you might not have explored all your fertility treatment option available to you. In such a situation, you might still be able to reproduce or give birth to a baby yourself. In case of female infertility problems, you can have a baby with the help of an egg donor. In this scenario, the child may not be genetically related to you but eventually you will be able to develop an emotional bond with the child during the pregnancy period. There may also be treatments that can help you give birth to a child with your own eggs, such as in vitro fertilization, gamete intrafallopian transfer and zygote intrafallopian transfer.
- WOMB TRANSPLANT- With the advancement of science and technology, it is now a dream come true for the infertile couples to have their own baby through biological process. Womb transplant is one such alternative to the infertility of the couples that would help them to have a baby. Womb transplantation is a surgical process in which a healthy uterus is transplanted into the body of an organism of which the uterus is absent or diseased. A diseased or absence of a healthy uterus does not allow normal embryonic implantation thereby rendering the female infertile. This phenomenon is called “Absolute Uterine Factor Infertility”. Womb transplantation is an effective remedy for such form of infertility.
Surrogacy aims at fulfilling the desire of the infertile couple incapable of producing a baby biologically. But nowadays, couples are resorting to this option so as to avoid the painful procedure of pregnancy. Keeping in mind the growing surrogacy industry in the country it can be concluded that in a country like ours which is not so developed economically, issues about the overuse and inappropriate use of commercial surrogacy facilitated by unscrupulous fertility clinics are above all. Pressurizing women to get into this business and make use of their body against their will which involves a lot of risk factors is another area of concern. There have been a number of instances where there is a breach of contract either by the surrogate mother or the commissioning couple. Such instances must not be neglected or ignored as it puts the other party in a state of dilemma and leaves the fate of the newborn baby undecided. Refusal on the part of surrogate mother to give the child to the commissioning parents is another issue that needs to be addressed. It’s high time to come up with a separate law that specifically deals with commercial surrogacy and the issues related to it. Above all, we need to change the image of a woman that we all perceive in our mind. Even a married woman who acts as a surrogate mother is not required to reveal her personal identity because even the law of our country recognizes the kind of social stigma that is associated with it. Another social stigma that commercial surrogacy carries with it is that it’s being equated with the business of prostitution which questions it morally as well as ethically. The surrogate mothers are kept in isolation and are allowed to meet their family members only on the weekends, which is a violation of the very basic principle of human rights. Coming back to the legal aspects it is a matter of shame for all of us that people in our country and all over the world are opting for commercial surrogacy when there is a hell lot of children out there who do not have parents and are really in need of parents. Everyone is ready to spend lacs of money just to get one baby but no one is willing to adopt a single child who really needs them. It is not only because of the thought process that most of the Indian parents have that their child must genetically or biologically related to them but is also due to the lengthy adoption procedure and the legal technicalities involved in it. The Government introduced The Surrogacy (Regulation) Bill, 2016 with an aim of imposing a ban on commercial surrogacy. However, it provided an alternative of “Altruistic Surrogacy”  to the couples who have been married for at least 5 years wherein the surrogate mother had to be a close relative of the commissioning parents and no monetary compensation would be paid in lieu of surrogacy. This ban by the government of India has severely impacted the women engaged in the reproductive industry as to where on the one hand it is the only means of survival for them while on the other baby-trading is considered as an equivalent to the sex trade and the surrogate mother as a sex-worker. A simple adoption procedure will help reduce the rate of growth of commercial surrogacy and better and well-framed policies will help cover all the loopholes currently present in the commercial surrogacy market.
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