Giving birth to a child is one of the nature's good ones. Now who
would have thought that one day humans might be able to commercialize
it as well?
Traditional Surrogacy (the straight method) is a term
wherein a female agrees to carry a child in her womb. Such that she
plays a role of surrogate mother to that fetus for next nine months. The
word surrogate literally means "substitute" or "replacement". A
surrogate mother is therefore a substitute mother. Thus, Surrogacy is an
arrangement in which a woman carries and delivers a child for another
couple or person. She may have made an arrangement to relinquish it to
the biological mother or father to raise, or to a parent who is
unrelated to the child. The surrogate mother may be also called the
gestational carrier. This is further of two types: Altuistic surrogacy
and Commercial surrogacy on the basis of monetary value.
Altruistic
surrogacy is a situation where the surrogate receives no financial
reward for her pregnancy or the relinquishment of the child (although
usually all expenses related to the pregnancy and birth are paid by the
intended parents such as medical expenses, maternity clothing, and other
related expenses). However, Commercial surrogacy consists of certain
amount of financial reward and hence is the most popular of both forms.
Such that in was in Manji's case in 2002 that Supreme Court of India
held that commercial surrogacy was legal in India. The reason for its
popularity is due to firstly, high international demand and secondly,
ready availability of poor surrogates. Hence, Commercial surrogacy is
sometimes also referred to by the emotionally charged and potentially
offensive terms like "wombs for rent", "outsourced pregnancies" or "baby
farms".
The roots of surrogacy arose as a result of Babylonian
law and custom which allowed this practice wherein an infertile woman
could use the practice to avoid the divorce which would otherwise be
inevitable. This involved another woman having bear a child for a couple
to raise, usually with the male half of the couple as the genetic
father. Such that this practice became kind of a revolution in this
modern era of globalization especially for developing countries like
India only difference being that now the same is done in exchange of
money.
Judging by Indian history, the Indian economy has come
quite far ever since independence. This is quite evident from current
GDP or sex ratio or education rate. However, they all are merely figures
and certainly not enough. The actual reality lies beneath her veil and
it is safe to say that it is not a pretty picture. It is the combination
of poverty, illiteracy and the lack of power with women over their own
life which is proving to be a fatal combination. For a country wherein
the literacy rate is depleting at fast pace and female fetuses are being
killed in wombs or sold at low rates, laws on surrogacy are need of the
hour.
There are number of implications that arise as a result of
surrogacy. It is all together a complicated process which requires a set
of concrete laws that need to govern this arrangement. Surrogacy over
adoption is mostly is opted by childless couples because they want to
have some kind of genetic attachment to their child to be born. This is
often termed as 'genetic vanity". It means that the parents want some
kind of genes which they could relate to. It somewhat highlights the
quality of only love's one's own and hate everyone else's! So that
loving one's child because he/she is of one's own blood is kind of
exclusive thing. Therefore genetic vanity is a desire to see a carrying
on of one's own genes. As a result the intended parent may get a
surrogate for one reason or another.
Surrogacy, worldwide, spins a web of emotional, social and legal issues. Such that they are discussed in brief below:
SOCIAL ISSUES
India
may have been a booming centre of 'reproductive tourism' for several
years now, but there are still number of stones left unturned. India is
known for her cultural and traditional values that are imparted to her
female citizens. No matter how modern and sophisticated they might start
acting, the mentality of preserving moral values cannot be easily
forgotten. There was a time when the thought of carrying child without
getting married was considered immoral and unethical, let alone having
someone else's child in exchange of money. However times have changed
drastically, nowadays a woman can use her body in whatever way she
desires to as long as she wants it. Such that the law itself provides
for the same as long as it is legal. It would definitely never prohibit
an act which involves giving birth to a life.
Most astonishingly,
surrogacy, which once was frowned upon is quite prevalent within
different territories of India, mostly backward of course. Such that,
whether it is a boon or a bane is yet to be decided. It is not
surprising that most of the uneducated women opt for becoming a
surrogate mother is because they are in dire need of money and why they
wouldn't! Surrogacy is the rich business. All the medical bills, from
the date of insertion to the date of delivery, the surrogate mother is
pampered and looked upon. Such that they get everything at their beck
and call as long as they are carrying other's child in their wombs for
that period.
It is said that money is not everything but to these
women who are living in filthy and pitiable situation, for them it might
just be everything. It solves their problem of never going empty
stomach to bed or having to worry about their families. So is surrogacy
ethical? Is outsourcing surrogacy to developing countries a bad thing?
The views might differ of course. Though on its most fundamental level,
surrogate motherhood can be interpreted as an economic transaction, the
reality is far more complex due to the degree of intimacy involved. On
top of the basic economics of the situation, there are layers of
emotional complexity, rights of bodily autonomy, and unaddressed
questions of women's rights in developing countries.
Surrogacy is a
matter of choice. Indian constitution guarantees a dignified life to
every citizen as a fundamental right. Hence, if a woman wants to be a
surrogate mother in order to feed her own family, she has every right to
do it! Hence this pregnancy becomes a gift of life not only to that
childless couple but to that of the surrogate's mother family. Besides
going by the illiteracy rate, how much of a choice does an Indian woman
really have? Moreover, equal rights for women means giving women
autonomy to choose for themselves, to choose their lifestyle, sexual,
and reproductive freedom. With that premise in mind, telling a woman
that hosting a surrogate pregnancy dehumanizes her just imposes a new
form of paternalism. Why not let each woman choose for herself then? In
reality the talk of women empowerment is just the cover up. What
actually lies underneath is more barbaric in nature. Such that critics
of outsourcing surrogacy argue that payment for bodily services
dehumanizes the surrogate mother and exploits her reproductive organs
and capability for personal gain of the wealthy.
The need for
reproductive freedom, procreative liberty and of the negative right of
interference by government on matters of personal choice is undeniable.
However, the silence of the Indian government is in line with values of
democracy, with ethical guidelines advocating for a woman's autonomy to
choose her own reproductive rights tells a different story all together.
Such that it only gets worse. India is one of the fastest developing
nations; however our outlook is nowhere as developed as we think.
Another popular view for instance is that surrogacy is similar to
prostitution. It is often pointed out that it reduces women's
reproductive labour to a form of alienated and/ or dehumanized labour.
Such that motherhood is becoming a new branch of female prostitution
with the help of scientists who want access to the womb for
experimentation and power wherein it is the womb and not the vagina that
is being bought. However this is an unfair comparison as that women's
reproductive labour, like their sexuality, cannot be compared or treated
in the same way as other forms of physical labour. It is very important
to understand that pregnancy is not simply a biological process but
also a social practice. It's a social and gestational labour, making it
off as an occasion for the parents to prepare themselves to welcome a
new life into their family. Some even do it as a gesture for their loved
one's. Moreover, it is not a new fact that every day we trade money for
services without forming a deep personal or emotional relationship with
each other..
HEALTH ISSUES
Like every coin has two sides,
there is one dark side to this as well. It is not necessary that the
woman who becomes ready to carry a child will always be in a good health
from the beginning of the process. Such that it known fact that mostly
those women who go for surrogacy usually do it for the money to survive.
Hence, it is obvious that they are in poor health and during or after
pregnancy, a possibility of complication would hardly be surprising.
This is where the problem generally arises in respect to the surrogacy
contract between the surrogate mother and the couples. Usually the
surrogacy contracts made between the two parties is drafted along the
lines that the childless parents provide for the health and care of the
mother till the time she delivers. This means that incase of
complications after delivery there is no legislation which provides
either for the health or medical bills for the surrogate mother once she
has given birth.
Moreover cases wherein the child born suffers
from certain birth defects also pose a problem for these surrogate
mothers. Congenital diseases are those inheritdatairy defects have got
nothing to do with the genes of the biological parents, but with that of
surrogate mother's health. The food she ingests, the way she lives, the
vices, if any, she suffers from, the cleanliness of her surroundings,
all have a bearing on the wellness of the child to be delivered. Such
that after the delivery the child so born if has some birth defects from
the stage of conception., in that case what happens to that child is
still not provided anywhere in the act. In the end is it fair for a
female to carry the risk of having someone else's child for money?
Moreover this has become a practice in most of the rural areas which
forces one to think that is it correct for a female to practice
surrogacy again and again judging by the ill effects of pregnancy.
EMOTIONAL ISSUES
The
bond between a mother and her child is a sacred one. However, the
application of economic norms to the sphere of women's labour violates
their claim to respect and consideration. Firstly, by requiring the
surrogate mother to repress whatever paternal love she feels for the
child, these norms convert women's labour into a form of alienated
labour which basically makes it harder for women to opt for it. Also, by
manipulating and denying perspective on her own pregnancy, the norms of
the market degrade her.
It is very important to understand that
the relationship between a pregnant women and her unborn fetus is
essentially different from that between a worker and his material
product. Children are not means, but ends in relationships with their
mothers; mothers regard the relationship as a meaningful end in itself;
and not as a means to some other end. The contract may require her to
act against her feelings to fulfill its terms. Such that the contract
'does not require the surrogate mother to feel in certain ways, but
rather act in a certain way' Even though one might act as per the terms
laid down but signing a contract does not determine what one's views and
feelings might turns out to be in the future. Therefore, would
undergoing a change of heart, of one's view or feelings, change the
terms of the contract? If it does then wouldn't this defy the purpose of
contract which was to provide mutual assurances of how the parties to
contract would act in the future? This problem yet has to be dealt by
covering legal grounds along with laws of nature.
Those who oppose
contracts for surrogate motherhood argue that they are morally
tantamount to baby-selling. With commercial surrogacy as with
baby-selling, a woman is paid a fee, in exchange for relinquishing a
child. However one can argue that, commercial surrogacy is more like
selling sperm than selling a baby; when a woman agrees to undergo a
pregnancy for pay; she does not sell a preexisting child but simply
allows another couple to make use of her reproductive capacity. This can
put some issues to rest however reality kicks in hard when these babies
are sold off for three figures sum.
LEGAL ISSUES
While
surrogacy is a boon for childless couples, there are many legal factors
around it that must be kept in mind. Since renting wombs has become an
easy and cheap option in India. Surreptitiously, India has become a
booming centre of a fertility market with its "reproductive tourism"
industry. ART (assisted reproduction technique), has been in vogue in
India since 1978 and today an estimated 200,000 clinics across the
country offer artificial insemination, IVF and surrogacy. In Jan Balaz v
Union of India, the Gujarat High Court conferred Indian citizenship on
two twin babies fathered through compensated surrogacy by a German
national in Anand district in Gujarat. This in itself is proof enough
that surrogacy is presumably considered legitimate because no Indian law
prohibits surrogacy. But then, as a retort, no law permits surrogacy
either. Hence it hoped that the proposed law will usher in a new
rent-a-womb law as India is set to be the only one to legalise
commercial surrogacy.
Hence commercial surrogacy is legal in
India. But it's still unregulated in our country as we don't have
legislation controlling surrogacy. And although the Indian Council of
Medical Research (ICMR) has set 'national guidelines' to regulate
surrogacy, these are still simply guidelines. All that is mentioned is
that surrogate mothers need to sign a "contract" with the childless
couple. There are no stipulations as to what will happen if this
"contract' is violated. Issues relating to nationality of the child born
out of surrogacy need to determined with thoroughness. The Indian Apex
Court in one of the cases has ruled that the child delivered by an
Indian surrogate mother would be the citizen of India. This poses
problems for foreigners who would obviously want the child to acquire
citizenship of their home country and therefore, needs to be chalked out
properly.
Hopefully by passing a law in this direction will set
things to change now, with India set to be the only country in the world
to legalize commercial surrogacy. The proposed rent-a-womb law, if
passed in the next parliamentary session, will clearly be one of the
friendliest laws on surrogacy in the world.
The Draft Assisted
Reproductive Technology (Regulation) Bill, 2010, is a step in the right
direction. It will help regulate the functioning of the in-vitro
fertilisation (IVF) centres and make the entire process of surrogacy
legal. The setting up of ART banks will ensure quality check and
accountability. The proposed Bill, however, legalizes not only surrogacy
per se but even commercial surrogacy or surrogacy "for monetary
compensation" or "on mutually agreed financial terms". It provides that
surrogate mother can receive monetary compensation for carrying the
child in addition to health-care and treatment expenses during
pregnancy. But the surrogate mother has to relinquish all parental
rights over the child once the amount is transferred and birth
certificates will be in the name of genetic parents. The age-limit for a
surrogate mother is between 21- 45 years. Single parents can also have
children using a surrogate mother. This first-of-its-kind Bill to
control and monitor cases of surrogacy in the country has been drafted
by the Ministry of Health and Family Welfare, along with the Indian
Council for Medical Research (ICMR) which makes surrogacy agreements
between the two parties legally enforceable. In addition it said that
the new law protects everyone involved which include genetic parents,
surrogate mother and the child. However, the Draft Bill lacks the
creation of a specialist legal authority for adjudication and
determination of legal rights of parties by a judicial verdict and falls
in conflict with the existing laws. These pitfalls need to be examined
closely before enacting the legislation.
The law commission of
India has also submitted on "need for legislation to relegate assisted
reproductive technology clinics as well as rights and obligations of
parties to a surrogacy." Such that the various measures proposed
includes that the surrogate mother shall be allowed to bear a child with
her and her family's consent such that in the event of death of the
commissioning couple or other, the surrogate child shall be provided
with financial support. This surrogate child is to give the legitimacy
of his commissioning parents wherein one of them has to be related to
the child (donor). Hence we see that most of the questions raised are
covered up with the proposed legislation. But it is still quite clear
that there is a wide difference between the laws on different issues of
surrogacy. Sometimes they seem to be uniform and sometime they are
completely deserted.
PREVALENCE AND SUCCESS OF SURROGACY IN INDIA
India's
surrogacy boom began in January 2004 with a grandmother delivering her
daughter's twins. The success spawned a virtual cottage industry in
Gujarat. Today, India boasts of being the first to legalize commercial
surrogacy soon to legitimize both intra-and inter-country surrogacy.
Prevalence in India is hard to predict as there are no exact figures
available and prevalence is also dependent on specialized centre's that
cater to surrogacy as an option to couples that have no other way of
getting a baby of their own.
However, the success rate of
surrogacy is almost astonishing and increasing with an alarming rate.
The surrogacy package price covers doctor fees, legal fees, surrogate
work up, antenatal care, delivery charges, surrogate compensation, egg
donor, drugs and consumables, & IVF costs.
India is emerging
as a leader in international surrogacy and a destination in surrogacy-
related fertility tourism. Indian surrogates have been increasingly
popular with fertile couple in industrialized nations because of the
relatively lost cost. Indian clinics are at the same time becoming more
competitive, not just in the pricing, but in the hiring and retention of
Indian females as surrogates. Such that with things becoming easier and
legal, people might become overenthusiastic and have a baby for which
they are not emotionally prepared on a long-term basis. Neglect and
abuse of these children is an issue of concern and a mechanism should be
put in place for monitoring their progress by social agencies.
CONCLUSION
Therefore,
surrogacy is, in and out, neither necessarily good nor necessarily bad.
If surrogacy were bad, it would be easy to say "ban it." But if it can
be either good or bad then I suppose the question must be whether it is
possible to structure it or regulate it in such a way that the good
outweighs the bad substantially enough to make the whole package
worthwhile. If implemented properly, it can be quite positive. Such that
the law does not necessarily promote moral and ethical behavior but it
can help to be very persuading. Such that there is no doubt that
Surrogate motherhood is a positive addition to the ever-expanding range
of technologies now available as remedies for infertility. Commercial
surrogacy is necessary evil. No matter how unethical or immoral it may
sound but in a poverty stricken country like India people take it as
blessing in disguise. Commodification of children is an inextricable
part of the process of surrogacy, any more than it is an inextricable
part of any other process by which one becomes a parent. The fact that
it's new should not prevent it from being regulated in form of a law.
This is already boosting reproductive tourism and globalization. It
cannot be ignored solely on the argument that this is not what our
ancestors have approved of because at the end of the day every woman has
the right to market be it her organs for donation or her womb for
giving life to a childless couple. If it is morally permissible for men
to sell off sperms on the basis of their reproductive capacity, why is
it not morally permissible for women to sell theirs in this gender
equality based country?
At the end, I believe that in order to
make any of this possible, it is essential to remove the feeling of
degradation that comes into people's mind when faced with the concept of
"renting a womb" by both educating them and empowering them with actual
factoids.
