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Wombs at Rent – Dilemma on the Horns

The female of all genomes are seen as life bearers and the human female is not aloof of it. The identity of a wife in the family is acknowledged once she bears the heir of the family and validates the masculinity of the husband. The child constructs parents socially while they make it biologically. However, not all couples are lucky enough to conceive a child and in such cases, surrogacy is the boon of medical science that gives them a chance to nurture their own. Unfortunately what poses as solution, in due time has become a source of exploitation and business. The surrogates are commercialized and surrogacy has become a source of flourishing business where the third world countries are looked upon as the ‘baby factories’ of the world. This article attempts to underline the misery of surrogates and the desecration entwined within the banner of ‘fertility tourism’. It also dwells into how India as a nation wills to protect the rights of its surrogates, what has been done in that direction and what still requires to be done!


INTRODUCTION

No life is worth a price and for parents the price of their child can never be anything that they cannot pay. Parenthood is the joy that each couple desires to experience and now as we enter into ultra modern dimensions, people singularly will to live and fulfill the role of parents. Surrogacy literally means ‘substitute’. It is the process in which an individual or a couple pays a fee to the woman in exchange for her carrying and delivering their baby. It implies that the surrogate mother substitutes the genetic mother. Surrogacy is differentiated in two halves-


On the basis of the nature of the agreement

1. Altruistic Surrogacy- The surrogate mother does not receive any sort of financial consideration from the intended parents.

2. Commercial Surrogacy- The surrogate mother receives financial consideration for bearing the child by the intended parents.


On the basis of the nature of fertilization

1. Traditional Surrogacy- The surrogate mother is also the biological mother of the child. She carries the child for full term and delivers it through artificial insemination.

2. Gestational Surrogacy- The surrogate mother and biological mother are different in this type. The uterus of the surrogate mother contains the embryo.


Positive inceptions have often turned into the practices that do more wrong than good. Similar fate has become for surrogacy. What started with altruism is now commercialized and has become a source of finances. It became billion dollar industry in many of the third world countries. In India, commercial surrogacy was legalized in 2002 but for the gay couples it was banned in 2013 and for all citizens in 2018. Amidst the regulations, how the fertility centres exploit the loopholes of the laws will be discussed further in this article.


CHRONICLES OF SURROGACY

In India, the idea of surrogacy is prevalent since the ancient times. The birth of Kansa, according to Bhagwat Purana was born through traditional surrogacy and the birth of Devaki’s seventh son, Balarama was born through gestational surrogacy.[i] Though, still seen as taboo in India, the innumerable instances of surrogacy in its texts implicate one thing only that even if the legal system of the country is being unable to give surrogacy a place in its system, it has been there for long.


However, the law gave a basic relief when it covered surrogacy under the laws of contract. But again going by the postulate that all contracts are agreements but not all agreements are contracts and the ethical issues that how the birth of a new life can be equal to a mere contract, the status of surrogacy in legal system remains disputed. The first surrogate baby in India was born on June 23, 1994 but it took almost eight years for India to legalize commercial surrogacy which under the sheets was flourishing as a billion dollar industry already. Due to no harmonization of laws across the set jurisdictions or any conventions dealing with surrogacy, there are fundamental differences between the countries regarding the legal implications of surrogacy. Before the ban of commercial surrogacy in India, all couples converged here in hope for the continuance of their bloodline.


BABY OUTSOURCING- ETHICAL EXPLOITATIONS

The Indian government faces the challenge of curtailing the exploitative function of baby outsourcing. India became the capital of fertility tourism due to the hassle free and cheap availability of surrogates. An estimated $500 million to $2.3 billion (U.S.) changes hands among commissioning couples, infertility clinics, brokers and Indian women who choose this way of earning money.


The Law Commission of India Report, 2009 referred the business of surrogacy as ‘pot of gold’. Even after the ban on commercial surrogacy the business is running smooth because the fertility clinics and the brokers easily spin a way out through the loopholes present in the law. The bill of 2010 lacked appropriate protections for the surrogates and has been continuously amended since then. In the latest scenario, the Surrogacy (Regulation) Bill, 2019 has been passed in Lok Sabha and is pending in Rajya Sabha to become an act.[ii]


The women are coerced and undergo commodification of human body in the fertility centres. There is a weird stillness inside the inconspicuous surrogacy hostels that have the women with heavy bellies at their tow. Under the veil of altruistic surrogacy, payments reach them for handing over the babies to parents once the babies are born. Some bear the babies with a will of providing the successor to the family and receive payments as a token for appreciation while most of them do it under the burden of sustaining their own families. Most of the surrogates are coerced in the business of ‘life-giving’ as it brings huge amounts of currency. Researchers have described surrogacy as modern-day slavery and mockery of motherhood where the poor fertile women from the global south rent their wombs for rich infertile women from the global north.


There are arguments that intend to support the ‘altruistic’ surrogacy. But the Swedish inquiry purports to refute these arguments. It mentions that legalizing altruistic surrogacy would not do away with commercial surrogacy. International experience shows the opposite- citizens of countries such as the USA or Britain, where the practice of surrogacy is widespread, tends to dominate among foreign buyers in India and Nepal. The woman will still be used as a vessel, even if she is called an angel.[iii]


LEGAL MEASURES AGAINST SURROGACY

After extensive public debate in all over the country with the stakeholders, the Indian Council for Medical Research (ICMR), worked under the Ministry of Health and Family Welfare, finalized the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India in 2008.


Year 2015 was the year where the legislations with the motives to put a curb on surrogacy were passed. Foreign intended parents are banned in India. In year 2018, the Indian surrogacy laws allowed altruistic surrogacy for the needy and infertile Indian couples with the condition that the intended parents are married for atleast five years and have doctor certified infertility. Surrogacy (Regulation) Act, 2018 restricted women to be the surrogates only for once and banned single parents, homosexuals and live-in couples. However, it was opposed by the NGOs and civil societies who expressed that ban for the aforementioned can be termed as archaic and the definition of ‘relative’ can be exploited as it is ambiguous.


With further amendments, the Minister of Health and Family Welfare introduced Surrogacy (Regulation) Bill in 2019 in the Lok Sabha that came up with eligibility criteria for the intending couples. It mandated them to hold a ‘certificate of eligibility’ and ‘certificate of essentiality’ certified by the District Medical Board, an order of parentage and custody of the surrogate child passed by a Magistrate’s court and insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate. It has provisions to constitute National and State Surrogacy Boards along with the registration of Surrogacy Clinics. It specifies a range of offences and penalties for contraventions of the provisions of the bill with penalty of imprisonment for upto 10 years and fine upto 10 lakh rupees. The bill has been passed in the Lok Sabha and is now on the verge of becoming an act once it is passed in Rajya Sabha and signed by the President as well.


The aforementioned bill has gathered mixed reactions from the people. By putting age barriers and minimum five years of marriage as a condition it provided a position to parents to provide secure future for the child and obviate the chances of custody battles. With increasing population of the country, the bill ventures to present an option of adoption too. Be that as it may the idea of adoption presented was a not hailed much as even today, the idea of adoption is not well received in Indian society. The bill is also criticized on the grounds that it snatches a woman’s right over her body and no legislature should direct her to on how to use her body.[iv] The non-payment for surrogacy will prevent exploitation implicates that defining exploitation from the point of view of money is a narrow way of looking at the social reality.


WHAT LIES AHEAD?

“A law alone cannot solve the problems of society, the attitude of the people need to change.”

-Ela Gandhi


Exploitation in surrogacy does not stem out from one point alone. Factors related to informed consent, dignity of reproductive labor and the well being of the parties involved is essential too. Banning of commercial surrogacy can be seen a major step because most of the times the surrogates were not informed about the embryos inserted, they had zero knowledge of the nationality of the intending parents and were also denied psychological counseling too. All these tantamount to physical as well as emotional exploitation. Considering these, a policy level intervention is duly welcomed. However, much has to be done still.


‘Buying a baby’, ‘selling the womb’ or ‘renting womb’ for monetary purposes sprout innumerable ethical questions. Even if the law framed assents to altruistic surrogacy, there are ample flaws in it. Firstly, the surrogates do not receive financial incentives beyond the required basics of bearing a child which for many infertile Indian couples have its own plausible limitations. Secondly, it does not guarantee that rich, infertile couples will not exploit poor, fertile women and for any official agency it is an impossible task to track the ‘gifts’ exchanged under the garb of compensation. Needless to pinpoint that altruistic surrogacy gives birth to the chances that there are emotions attached from the side of surrogate mother towards child.


Adoption can be one of the measures to make things less complex. There are around 12 million children who are orphan and in such cases, adoption always presents itself as a win-win solution. Unfortunately, due to social dogma and legal complexity many couples tend to ignore this option. The government can work in the direction of making adoption legally less complex and more comprehensive. Along with that it can run programs to educate the society for these causes.


Surrogacy is not a straight path. It has high social, biological, cultural and psychological convolutions imbedded. The entire practice demands intense regulation with an appropriate dosage of realism in each country’s context. A blanket ban will always open the possibility to go entire business underground which can be no less than a stumbling block!


ENDNOTES

[i] Mahabharata, the longest epic of Hindu literature is full with examples which indicate that the babies are born from either surrogacy or IVF (the birth of 100 kaurava sons and 1 kaurava daughter).

[ii] https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2019

[iii]Kajsa Ekis Ekman, All surrogacy is exploitation, THE GUARDIAN (Feb 25, 2016), https://www.theguardian.com/commentisfree/2016/feb/25/surrogacy-sweden-ban.

[iv] Having a child is a basic human right. Declaration of Human Rights 1948 says, inter alia, that ‘men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family’.


ABOUT THE AUTHOR This blog has been authored by Shreya Upadhyay who is a 1st Year B.A., LL.B. (Hons.) student at ILS Law College, Pune.


[PUBLICATION NO. TLG_BLOG_20_4104]

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