SURROGACY: AN ILLEGITIMATE MOTHERHOOD - by Neha Bhuraney & Avinash Jain

SURROGACY: AN ILLEGITIMATE MOTHERHOOD

 

 

National Conference

On

Law, Science & Society: Dynamics – Dilemmas – Disparities

27th -28th, January, 2012

 

RESEARCH ON

SURROGACY: AN ILLEGITIMATE MOTHERHOOD

(Challenges of Social Transformation)

Key words:  gestation, prostitution, commoditization, negatives

 

 

Author:                                                          co-author:

Neha Bhuraney                                            Avinash Jain

Student, institute of law                               student, institute of law

Semester-III                                                  semester-III

L-32 Sagar Vihar Colony                            C-373 Nirman Nagar

Vaishali Nagar Ajmer (raj)                          King’s Road, Jaipur (raj)

7878146563                                                            7878576062

10bal006@nirmani.ac.in                          10bal018@nirmauni.ac.in

      

 

 

 

 

 

INTRODUCTION

“It's not easy being a mother.  If it were easy, fathers would do it.”    ~From the television show The Golden Girls

 

In a country like India where belief is the utter truth, we categorise the life of a woman in three different forms, i.e. “A DAUGHTER, A WIFE and that of A MOTHER. That is why it is a considered truth that giving a birth completes a woman physically, mentally and emotionally.

 

It is often a devastating and life changing trauma for a woman when she discovers that for one or the other reason she cannot become pregnant and cannot have a child of her own[1].Unsuccessful attempts and after medical checkups leads them to one way stride in life i.e. “SURROGACY”. This is a medical technique where another woman (a surrogate mother) carries the child for 9 months until the baby is born and that baby is handed over to his/her rightful parents, who have hired the surrogate to rent her womb in the exchange of money.

 

Although it seems to be a perfect solution to the medical problem of childlessness, even this technique has its pros and cons. This paper is an attempt to shed light on the facts that support surrogacy and promotes it and those factors too that consider the idea of commercial surrogacy to be not more than but a way to say that its a legalised prostitution. In this paper, in the light of surrogacy a very important question is being raised, “whether the ownership of one’s body is in his/her own hand or it’s in that of the society.” These questions will not only capture the essence of social conditions of India but will tend to answer many problems of surrogacy and its ethical pose in India.

 

SURROGACY: WHAT, WHEN AND WHY?

The word ‘surrogate’ has its origin in Latin ‘surrogatus’, past participle of ‘surrogare’, meaning a substitute, i.e. a person appointed to act in the place of another[2]. Thus a surrogate mother is a woman who bears a child on behalf of another woman, either from her own egg or from the implantation in her womb of a fertilized egg from other woman. The Report of the Committee of Inquiry into Human Fertilization and Embryology or the Warnock Report (1984) defines surrogacy as “the practice whereby one woman carries a child for another with the intention that the child should be handed over to the intended parents after its birth.”

 

Surrogacy is categorised into two classes: ‘gestational surrogacy’ and ‘traditional surrogacy’. They are defined as follows:

Gestational surrogacy. A pregnancy in which one woman (the genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the foetus and gives birth to the child.

 

Traditional surrogacy. A pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination, and carries the foetus and gives birth to a child for another person.

 

Gestational surrogacy’ is total in the sense that an embryo created by the process of IVF is implanted into the surrogate mother. ‘Traditional surrogacy’ may be called partial or hereditarily contracted motherhood because the surrogate mother is impregnated with the sperm of the intended father making her both the genetic and the gestational mother; the

Child shares make-up of the commissioning father and the surrogate mother[3].

 

Surrogacy is a hot spot because it has the potential of becoming an attractive scheme to infertile couples in which the wife, not the husband, is sterile. Basically, the male partner will provide sperm, which is used to inseminate a woman, the surrogate, so that she can conceive a child, carry it to term, and then hand it over to the couple. Because of its limited, qualified language dealing with services rendered, surrogate motherhood is becoming a business transaction like many others. Yet, it brings with it a pot full of expectations and fears with legal and moral implications that makes it unlike any other business deals. Many childless couples, frustrated by infertility and the lengthy adoption process, are resorting to the costly and distress free alternative of surrogate parenting.

 

SURROGACY: A DELIGHT OR BLIGHT

Every coin has two sides, one in favour of and one against off. To understand the working of any object in this society, it is very important to understand its impact in upward as well as downward direction.

 

In case of surrogacy which is taken as a successful substitution to infertility, also have some disliking opinions which state that it is yet another form of renting one’s body and thus a form of legalised prostitution. But it is true that surrogacy has been a source of happiness to those unfortunate couples who dream of having a child of their own. Some of the factors which contribute to the positive balance of surrogacy are:

 

• It’s a safe way of having child with a gene of own which is unlikely in the case of adoption
• For the surrogates, choosing to carry a child for contracting couples is an opportunity for financial empowerment, enabling them to secure a ‘better life’ for themselves and their families[4]
• While there are always health risks involved in fertility treatment, pregnancy and childbirth, surrogacy is a comparatively safer way of procuring a child.
• For gay couples or singles who intend to be a parent, surrogacy is an easily accessible way of having genetically linked children.

 

After the right future of surrogacy, there are many factors which contribute to the water on the fire. Surrogacy not only brings complications for the birth mother but also to the new born child, there are many things in this universe that can’t be explained, such is the bond between a mother and the foetus, which itself is the biggest of all complications in the matter of surrogacy. Some of the factors which clearly explain the risk involved in surrogacy for a child and the bearing mother are;

• There is a crucial window of time from the moment of birth onwards, whereby the baby begins to form cognitive attachments through inter-subjective interaction with the gestational mother. Therefore, one ought to be especially concerned with any process that disrupts the important bond between mother and child, beginning during conception and continuing after birth. Surrogacy ruptures this bond and such is the importance of the emotional attachment between the surrogate mother and the child she has carried, that it has lead to many cases from around the world where surrogates have been unwilling to relinquish their child.

 

• A diagnosis of disability or disease, even if equivocal, could lead to serious problems with a surrogacy arrangement. For example, a prenatal diagnosis of disability or perceived imperfection could result in the commissioning couple renege. In the case of a diagnosis of disability, depending on the circumstances and severity, the option of abortion could be considered by the surrogate; however, differing moral perspectives on abortion have the potential to result in an irresolvable stalemate. The surrogate may still wish to proceed with the birth; however, the commissioning couple may abandon the child, thus bringing the future of the surrogate and the to be born child in dark,

 

• There are also other significant health risks for surrogate mothers. Whilst pregnancy is natural, it is not without risk. Whereas a woman choosing to become pregnant and committed to raising her child is prepared to bear that risk, in surrogacy, the concern is that she bears the risk without the natural benefit of motherhood.

 

• Some protest that if it is done for money, poor women will be exploited by it. But if there is nothing wrong with foster pregnancy, what is wrong with making money from it? Clearly, this objection stems from the feeling that bearing another's child for pay is degrading in the same way prostitution is.

 

ETHICAL ISSUES OF SURROGACY IN INDIAN PROSPECTIVE

It is a fact that getting influenced is the part of the social transformation. India is also a part of such transformation where the different cultures all around the world influence the cultural stability of this country. They say I we say I, they change the way of understanding we change the way of understanding; the matter of commercial surrogacy is following the same trend of the influence of the west.

 

We need to understand the real difference between the global and the local culture. In a western country like U.S.A. or U.K., the way of taking things into prospective is way is different than what it is in India. The society there is comparatively broad minded and advanced unlike that of India where half of the population is still orthodox. People there take relationship and their identity in the society in a light manner, evidence being that half of the families in states are reformed families. In India it is very important for a person to maintain ones identity within the society i.e. what society thinks about his/her existence. Here comes the matter of commercial surrogacy as something being dark and sceptically unethical.

 

A big ethical question in the matter of surrogacy as a social transformation is

“The question of whether the suffering of a childless woman is greater than that of the gestational surrogate, who ‘abandons’ her baby, is ‘solved’ when the surrogate mother is de-personalised, and looked upon solely as a ‘womb for rent’ ”[5]

This question answers itself to the matter of the ethnicity of commercial surrogacy. Sadness cannot be felt of what never existed but when you know that there is someone who is yours but is destined to be someone else’s is what is painful for the surrogate mother, when she gives up her child to foster parents of surrogate contract. There is a natural bond between the mother and the child which develops during the nine months of pregnancy; even being in a binding contract surrogates can become unexpectedly attached to the child they carried. As the pregnancy advances, the surrogate mother may find it increasingly difficult to remain detached from "their" child and relinquishing the child after birth may considerably be more disheartening and disappointing than originally anticipated.

 

Another unethical factor is “It is a fact that when one pays money one expects value, and an unavoidable question in surrogacy arrangements is: "Did I get a good child?"

The basic problem is of creating a child without desiring it, something that will fundamentally change the way we look at children instead of viewing them as unique individuals to be desired in their own right, we may come to view them as commodities. In case if the child is a male and they want female, or born with a genetic disability, then what would be the future of the child if the commissioning parents refuse the baby (being a commodity which was not desired) and surrogate mother charges herself out of the contract, which extends way up to the birth of child and no more further.

 

Thirdly being that “Is it ethical for a single woman to use artificial insemination by donor or for a single man to employ a surrogate mother if they wanted to have a child without being burdened with a spouse? This practice would intentionally deprive the child of a mother or a father, which would be unfair to the child.”

 

Fourthly being that “whether a child should be desired for its own sake, and not as a mean of attaining some other end?” Even though one of the stated ends may be to bring happiness to an infertile couple, the child is still being used by the surrogate mother as a commodity.

Even if we agree that surrogacy is a way to give happiness to a childless couple, would these questions remain unanswered?

COMMERCIALIZING SURROGACY OR LEGALIZING PROSTITUTION?

In the matter of surrogacy it is very important to understand that renting a women’s womb, which is part of her body for money is inclusively similar to prostitution wherein the sexual services are given by women in reference to cash. There are some factors that explain why the line of surrogacy and prostitution meets.

 

• Since Surrogacy Is Like Prostitution, It Should Be Prohibited Because No

Woman Can Rationally Choose It[6]

Whether a woman has a right to enter into contracts involving her body, where "the state has constructed the social, economic, and political situation in which the sale of some sexual or reproductive capacity is necessary for the survival of women; and yet the selling is seen to be an act of individual will. The broker in the surrogacy context, who brings the contracting parties together for a fee, has also been analogized to a pimp. Surrogacy, like prostitution, allows society to equate women with sex and nothing more. Even though an individual woman may chose to pose nude, to sell her sexual services, or to rent her womb, the abuses and exploitation inherent in these practices suggest that the decision is hardly one of choice. That women chose to be vulnerable to risks such as AIDS, degradation, rape, and health risks associated with pregnancy (in order to bear another couple's child) proves that many women are desperate, not that they are free to choose. Another author, concurring with MacKinnon, explains that objections to surrogacy arise from objections to control of the body by another person or out of social policy concerns.

 

• Commercial Surrogacy Is as Coercive and Exploitative as Prostitution, and Therefore, Should Be Regulated[7]

In order to show that surrogacy contracts should be unenforceable, it can be said that surrogacy is like prostitution in its exploitative and coercive aspects specifically. Field states that because many women do not know whether or not they will ultimately be able to give up their child when they enter into a surrogacy arrangement, to the extent the contract forces a woman to give up the child it can be coercive." Consequently, surrogacy contracts should be unenforceable at the option of the surrogate.

THE RISING CAPITAL: THE MEDICAL INDUSTRY AND   LEGALIZATION OF SURROGACY IN INDIA

India, surreptitiously, has become a booming centre of a fertility market with its “Reproductive tourism” industry reportedly estimated at Rs. 25,000 crores today. Clinically called “Assisted Reproductive Technology” (ART), it has been in vogue in India since 1978 and today an estimated 200,000 clinics across the country offer Artificial insemination, IVF and surrogacy. So much so, in the recent decision of the Supreme Court on September 29 in Baby Manji Yamada’s case, it was observed that “Commercial surrogacy” reaching “industry proportions is sometimes referred to by the emotionally charged and potentially offensive term wombs for rent, outsourced Pregnancies or baby farms”[8]. It is presumably considered legitimate because no Indian law prohibits surrogacy. But then, as a retort, no law permits surrogacy either.

 

However, the changing face of law is now going to usher in a new rent-a-womb law as India is set to be the only country in the world to legalise commercial surrogacy. Although the commercial surrogacy is illegally practised in lot of countries but India is favourite most because of these reasons

• Half of the population of the country is in below poverty line and in a immediate need of money of which the can do anything
• The medical expenses in India is relatively cheap  than that of other countries
• Being a country where there are no substantial laws for practising surrogacy unlike other countries, it becomes a hub for NRI or gay couples who are unable to get a child in their own country and take shelter in India
• There are large no of women who agree to be surrogate mothers, thus making it easy for the couples to choose an appropriate surrogate mother.

 

After discussing these points, it’s debatable to understand that the commercial surrogacy has a booming future industry, but what if these surrogate mothers and the newborn child are used as a part of another organ donating or trafficking racket?

 

 

 

LEGAL SPECTRUM OF SURROGACY IN INDIA

In India, according to the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005 by the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS), the surrogate mother is not considered to be the legal mother. The birth certificate is made in the name of the genetic parents. The US position as per the Gestational Surrogacy Act 2004 is pretty similar to that of India

 

The legal issues related with surrogacy, as we have seen, are very complex and need to be addressed by a comprehensive legislation. After a long wait for so many years, the Indian Council of Medical Research (ICMR) has come out with a draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008. A draft bill prepared by a 15 members committee including experts from ICMR, medical specialists and other experts from the Ministry of Health and Family Welfare, Government of India has been posted online recently for feedback. This 135 page document is stated to be an Act to provide for a national frame work or the Regulation and Supervision of Assisted Reproductive Technology and matter connected therewith or incidental. Thereto as a unique proposed law to be put before the Indian Parliament.[9]

 

This bill proposes following statements:

• The Bill acknowledges surrogacy agreements and their legal enforceability. This will ensure that surrogacy agreements are treated on par with other contracts and the principles of the Indian Contract Act 1872 and other laws will be applicable to these kinds of agreements.

 

• The Bill provides that single persons may also go for surrogacy arrangements.

 

• The Bill provides that a foreigner or foreign couple not residing in India or a non-resident Indian individual or couple, seeking surrogacy in India, shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after pregnancy till the child is delivered to the foreigner or foreign couple or the local guardian.

 

• It is further provided that the commissioning parents or parent shall be legally bound to accept the custody of the child irrespective of any abnormality that the child may have, and the refusal to do so shall constitute an offence.
• A surrogate mother shall relinquish all parental rights over the child.

 

• The birth certificate in respect of a baby born through surrogacy shall bear the name(s) of genetic parents/parent of the baby.

 

• The Bill also provides that a child born to a married couple or a single person through the use of ART shall be presumed to be the legitimate child of the couple or the single person, as the case may be.

 

• If the commissioning couple separates or gets divorced after going for surrogacy but before the child is born, then also the child shall be considered to be the legitimate child of the couple.

 

• The Bill further provides that a couple or an individual shall not have the service of more than one surrogate at any given time. A couple shall also not have simultaneous transfer of embryos in the woman and in a surrogate.

 

Taking into consideration the fact that many big and developed countries have decided not to legalize the commercial surrogacy, then why in a country such as India? Analysing the draft bill which is taken to be the future of commercial surrogacy, there are many things that the parliament has left out in the matters of dispute of surrogate contracts. Most important points in regard to the rights and obligations of the parties to a surrogacy and rights of the surrogate child the proposed legislation should include may be stated as under:

 

1. Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
2. A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
3. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
4. One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship.
5. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
6. Right to privacy of donor as well as surrogate mother should be protected.
7. Sex-selective surrogacy should be prohibited.

 

CONCLUSION

We’ve come to the conclusion that surrogacy is, in and of itself, neither necessarily good nor necessarily bad.  We have no over-arching moral objections to the practices that make up surrogacy. While we object to the commoditization of children, we don’t think that this is an inseparable part of the process of surrogacy, any more than it is an inseparable part of any other process by which one becomes a parent. This “it depends” position makes it a bit harder to come up with simple solutions. If surrogacy were bad, it would be easy to say “ban it.”  But if it can be either good or bad then we 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.

 

The real trouble that this technique brings upon this society is the commoditisation of the ‘motherhood’ which has been positioned as supreme in a country like that of India. Commercial surrogacy resembling its nature with that of prostitution such as ‘having a consensual sex’ or ‘having a consent giving pregnancy’ might have been socially viable in a country like U.S.A. but in a country with Indian sentiments its morally unethical and unacceptable. Some people might comment that prostitution though illegal is still practiced at large in this country, but so is corruption, and it is no revelation that corruption is a larger phenomenon than prostitution. A country such as U.K. which has a comparatively better social approach has banned prostitution as well as has rejected the idea of commercialising surrogacy so why India. There is a need to stabilize the laws related to surrogacy, for it has definitely increased the rate of women exploitation in the country and if not taken into account it’ll demolish the social foundation of the Indian society within meagre period of time.

 

 

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[1] Matthew Tiew, “oh baby baby: problems of surrogacy”, Bioethetical Research Notes,19(1),march 2007

[2] “need for legislation to regulate assisted reproductive technology clinics as well as

rights and obligations of parties to a surrogacy” , law commission of India, report(228) august 09

[3] Shabir Bhimji(P.H.D), “Womb for rent: ethical aspects of surrogate motherhood”, CMAJ, VOL. 137, DECEMBER 15, 1987

[4] Commercial surrogacy: surrogacy in India is morally acceptable (November 29th)pdf,www.debatingmattersindia.com,

 

[5] Matthew Tiew, “oh baby baby: problems of surrogacy”, Bioethetical Research Notes,19(1),march 2007

[6] Andrea Dworkin & Catharine MacKinnon, JOURNAL OF GENDER & THE LAW [Vol. 5:315),(27th November),www.scribd.com

 

[7] Andrea Dworkin & Catharine MacKinnon, JOURNAL OF GENDER & THE LAW [Vol. 5:315),(27th November),www.scribd.com

 

[8] need for legislation to regulate assisted reproductive technology clinics as well as

rights and obligations of parties to a surrogacy” , law commission of India, report(228) august 09

 

[9] Anil and Ranjeet Malhotra, commercial surrogacy in India :bane or Boon ,Hindustan times.14th April 2007