Wisdom Crux

Surrogacy: Where Money Trancends Biological Limits

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[Volume 2, Issue 7] – July, 2017

Author – Aishwarya, LL.B(Hons), Faculty Of Law, Bnaras Hindu University

ABSTRACT

The world is moving fast and people desire comfort. A time has come when women can’t afford to take a child in their womb as there is paucity of time. There has been a  legal and ethical battle as to if a womb of a woman can be contracted for. A contract of surrogacy can be entered into by a woman. The practice of renting a womb and getting a child is like outsourcing pregnancy.

 Before delving into the legitimacy or validity of a surrogacy contract, it is important to ascertain the answer of a very relevant question: Who owns the body of a woman? Is it the husband, the state or the woman herself? In the wake of individual autonomy modernization and family planning, the use of contraception, has given women control over her body.

The Supreme Court of India has neither legalised it, nor illegalised it. The statutes also fail to provide an explanation affirmatively. India which claims itself to be the largest democracy in the world as well as a welfare state, has failed to take care of the interests of the vulnerable segment of the society. A bill regarding Assisted Reproductive Technology which embodies in itself the aspect of surrogacy is pending that needs to be addressed. A law which answers the ambiguity regarding the legal position of surrogacy must take birth.

KeyWords: Legality, Legitimacy, Womb

God has given a wonderful gift to women, that is to reproduce and every woman cherishes the experience of motherhood but there are some women who, due to certain physiological conditions and are unable to give birth to their off-springs. They are thus devoid of the joy of motherhood. The desire thus spawned leads them to find alternative solutions and surrogacy is their savior. With the enormous advances in the field of medicine, the infertility can now be treated using the new medical technologies collectively called Assisted Reproductive Technology (ART) such as in vitro fertilization (IVF) or intracytoplasmic sperm injection (ICSI) etc.

SURROGACY:

Meaning of surrogacy: The word ‘surrogate’ has its origin in Latin ‘surrogatus’, past participle of ‘surrogare’, meaning a substitute, that is, a person appointed to act in the place of another. Therefore 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.((https://indiankanoon.org/docfragment/168220859/?big=1&formInput=surrogate))

According to the Black’s Law Dictionary, “surrogacy means the process of carrying and delivering a child for another person.”

There are four types of surrogacy practices prevailing in India:

  • Traditional/Natural/Partial Surrogacy;
  • Gestational Surrogacy
  • Altruistic Surrogacy
  • Commercial Surrogacy

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. 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.

Altruistic surrogacy: Where the surrogate mother receives no financial rewards for her pregnancy or the relinquishment of the child to the genetic parents except necessary medical expenses.

Commercial surrogacy: Where the surrogate mother is paid over and above the necessary medical expenses for carrying the foetus.

Surrogacy is the union of society, science, services and the person concerned that makes it a reality. Surrogacy leads to a win-win situation for both the infertile couple and the surrogate mother. The infertile couple is able to fulfill their most important desire and the surrogate mother receives the suitable reward.

Following are the facts regarding the Surrogate Mother:

  • She is not the genetic mother of the child whom she nurtures and gives birth to.
  • She is not the wife of the father of the child to whom she gives birth.
  • This is a scientific idea, a scientific process. There is no need for any physical contact.
  • She is not an asocial woman.
  • This is not an illegal practice.
  • She is not forced into this. She herself decides whether she wants to become a surrogate    mother or not.
  • She has no claim or rights over the child that is born
  • She is not a woman who sells children.
  • She is not responsible for the child (once the child is born).
  • Surrogacy is a mutually beneficial concept of providing services.((Indian J Med Res 140 (Supplement), November 2014, pp 13-16))

Why people opt for surrogacy:

 People will go for surrogacy because of the following reasons:

  • Infertility: Female infertility, or any other medical issues which might make the pregnancy or delivery risky.
  • Risky Pregnancy: For some unfortunate women when there is risk to life when they get pregnant.
  • Same sex Couple: In case of homosexuals, surrogacy can help the same sex couple realize the dream of having their own child as they cannot have their own child by the natural methods.
  • Single Parent: for those who want to have a child bearing their genes, surrogacy is one of the ways to find happiness

Position in the past

 Surrogacy arrangements were generally confined to close relatives, family, or friends, usually as an altruistic deed. But with the introduction of financial arrangements in the process, surrogacy has extended its network beyond family, community, state, and even across the country. Today, concept of surrogacy has turned a normal biological function of a woman’s body into a commercial contract and agencies involved are making huge profits out of it.

Social and ethic: Surrogacy different from prostitution & test tube babies.

 It is very hard for a country like India to accept new and modern ways of technology. Thus ethics and morals play a vital role in such countries and because of that people often confuse surrogacy with prostitution. Prostitution is the business or practice of engaging in sexual relation in exchange for payment or some other benefit. Prostitution is sometimes described as commercial sex((“Prostitution – Definition and More from the Free Merriam-Webster Dictionary”. Merriam-Webster.)). Prostitution is one of the oldest business industry and persons involved in it have purely pecuniary interests. Legality of this industry depends from country to country. For example, prostitution is banned in India whereas in Bangkok it is legal. People working in this industry are known as prostitutes. Prostitutes give sexual pleasure to their client and get paid. Prostitutes are not only female but males too. Surrogacy is way different from prostitution as in prostitution there is only desire for sex where as in surrogacy a male donates this sperm to a female who conceive it in order to give a new life i.e. to give birth to a baby. But in prostitution no one takes the responsibility, if the child is born from the womb of prostitute. As in most of the cases even the prostitute doesn’t remember who is the child’s father i.e. one who donated the sperm((http://webmastersglobal.wordpress.com/2014/01/30/difference-between-test-tube-baby-andsurrogate-mother/ [Last visited on 11/06/17])).

Test Tube Baby.

 Test tube baby, scientifically known as IN VIRTO FERTILIZA is the process of fertilizing an egg outside of the woman’s body. A test tube baby is the term that refers to a child that is conceived outside the woman’s body. The process is referred to as “in vitro” (outside the body) fertilization. Simply put, eggs are removed from the mother’s ovary and incubated with sperm from the father. After fertilization, the “pre-embryos” are allowed to divide 2-4 times (in a “test tube”, hence the name) and then returned to the mother’s uterus where they can develop normally. Through these procedures, women with otherwise untreatable infertility problems have given birth to healthy babies.((www.seasonsindia.com/pregnancy/testtube_sea.htm))

SURROGACY IN INDIA:

Infertility is generally known as a social stigma in India. It is hypothesized that the agony and trauma of infertility is best felt and described by the infertile couples themselves. Though, infertility does not claim the life of an individual but it inflicts devastating influence on life of an individual for not fulfilling the biological role of parenthood for no fault of his or her own. It is also known that in general, Indian society has got a very stable family structure, strong desire for children and particularly for a son to carry forth the lineage or Vansh.

Position of Surrogacy in India: Why people are opting for India.

Major reasons are as follows:

  • The cost of a surrogacy arrangement in India is much lower than other countries.
  • The low income levels of a vast majority of the population mean that it is comparatively easier to find somebody willing to act as a surrogate
  • India does not have a legal regime governing the rights of the surrogate (a cause for major concern).

Slowly but steadily, India is emerging as a popular destination for surrogacy arrangements for many rich foreigners. This is done because of the following reasons:

  • Cheap medical facilities
  • Advanced reproductive technological know-how
  • Poor socio-economic conditions.
  • Lack of regulatory laws in India In this regard combined to make India an attractive option.

Nevertheless, reasons for foreigners coming to India in search of surrogate mothers vary. Women from lower socioeconomic backgrounds readily agree to become a surrogate mother in India in return for payment, as hiring a surrogate in the western countries is not only difficult, but, the treatment is also immensely costly. The legal prohibition of surrogacy in some countries also leads people to come to India. For example, a 37-year-old Russian came to Bhopal as the expense for surrogacy is prohibitive in her country – between Rs. 15, 00,000 and 20, 00,000 – as compared to the Rs. 200,000 cost in Bhopal. Women, who undertake these assignments in India, usually come from lower class to lower middle-class backgrounds, are married, and are often in need of money. Their need for money is so acute that more than often, childless couples can negotiate a better price as a result of competition. The amount of money given to a surrogate mother in India may appear very miniscule from any reasonable perspective, however, the amount may serve as the economic lifeblood for the families, and will be spent on the needs of the family (a house, education of the children, medical treatment). These are basic needs and may seem trivial from a notably rich westerner’s perspective, but they become mega needs in a country like India, which lack social safety nets, and where the governance structure is attuned only to the needs of the rich and powerful sectors of the society. The practice of renting a womb and getting a child is similar to outsourcing pregnancy. The volume of this trade is estimated to be around $ 500 million and the numbers of cases of surrogacy are increasing rapidly. The exact extent of this practice in India is not known, but inquiries have revealed that this practice has doubled in the last few years. There is a growing demand for fair-skinned, educated young women to become surrogate mothers for foreign couples. Often, couples have to wait for as long as eight months to a year for their turn. Normally women from small towns are selected for outsourcing pregnancy. In places like Anand, Surat, Jamnagar, Bhopal, Indore, a large number of couples from both within India and abroad travel to fulfill their desire for a child((Surrogacy Report | rinku saha – Academia.edu, last accessed on 13/06/17)). Several American, Russian and British women are duly registered with the Akankshya Clinic of Anand and the Bhopal Test Tube Baby Centre for the procedure. In commercial surrogacy agreements, the surrogate mother enters into an agreement with the commissioning couple or a single parent to bear the burden of pregnancy((http://www.idealfertility.com/services_ttb.html, last accessed on 15/06/17)). In return of her agreeing to carry the term of the pregnancy, she is paid by the commissioning agent for the same. The usual fee is around $25,000 to $30,000 in India which is around 1/3rd of that in developed countries like the USA. This has made India a favourable destination for foreign couples who look for a cost-effective treatment for infertility and a whole branch of medical tourism has flourished on the surrogate practice. ART industry is now a 25,000 crore rupee pot of gold. Anand, a small town in Gujarat, has acquired a distinct reputation as a place for outsourcing commercial surrogacy. It seems that wombs in India are on rent which translates into babies for foreigners and dollars for Indian surrogate mothers.

SURROGACY CONTRACT:

Surrogacy in India is permissible because no Indian law prohibits it. The Indian contract act would apply with respect to the legality of surrogacy agreements. Under section 10 of the contract act Surrogacy arrangement is made as a result of an agreement between the parties. This agreement is written down and every aspect related to the parties is specifically addressed. The rights and liabilities of the parties are specifically laid down. The parties cannot on a later date, after signing the contract, claim that the intention of the parties was any different from what is mentioned in the surrogacy contract. Therefore, the surrogacy agreements between the intended parents and the surrogate mother are governed entirely by the Indian Contract Act, 1872. The essentials of a contract laid down in Section 10 of the Indian Contract Act, 1872 must be satisfied for an agreement to be enforceable by law. These essentials are as follows:

  • It should be entered into by the free consent of the parties.
  • It should be entered into for a lawful object. 
  • It should have a lawful consideration.
  • The parties entering into the contract must be competent to contract
  • It is not expressly to be declared void.

Declaration of Human Rights 1948, inter alia, says 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”. The Judiciary in India too has recognized the reproductive right of humans as a basic right. For example in B. K. Parthasarthi v. Government of Andhra Pradesh,((2000 (1) ALD 199, 1999 (5) ALT 715)) the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma(( 316 U.S. 535 [1942])), which characterised the right to reproduce as “one of the basic civil rights of man”. Even in Javed v. State of Haryana((Writ Petition (Civil)  302 of 2001))though the Supreme Court upheld the two living children norm to debar a person from contesting a Panchayati Raj election it refrained from stating that the right to procreation is not a basic human right.

The Draft ART (Assisted Reproductive Technology) Bill

A new bill is in the works to regulate the practice of surrogacy aiming to avoid some of the pitfalls of the ICMR guidelines discussed above. The bill empowers a National Advisory Board to act as the regulatory body laying down policies and regulations. It also seeks to set up State Advisory Boards that are, in addition to advising state governments, charged with monitoring the implementation of the provisions of the Act, particularly with respect to the functioning of the ART clinics, semen banks and research organizations. . The Artificial Reproductive Technology (Regulation) Bill defines surrogacy as an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention of carrying it to term and handing over the child to the person or persons for whom she is acting as surrogate; and a surrogate mother is a woman who agrees to have an embryo generated from the sperm of a man who is not her husband, and the oocyte for another woman implanted in her to carry the pregnancy to full term and deliver the child to its biological parents. The bill acknowledges surrogacy agreements and their legal enforceability. The surrogacy agreements are treated at par with other contracts under the Indian Contract Act 1872 and other laws applicable to these kinds of agreements. Both the couple/single parent and surrogate mother need to enter into a surrogacy agreement covering all issues, which would be legally enforceable.

By this definition, all surrogacy arrangements that involve the woman bearing a child using her own egg (oocyte) and the commissioning man‘s sperm are illegal. Also, by this definition, fertile surrogate mothers will necessarily have to use technology meant for treatment of infertility. Surrogates will now be forced to use only in-vitro technologies even though they can get pregnant with methods like artificial insemination which are much safer for them. Further, in light of the Artificial Reproductive Technology (ART) practiced today, it reflects that there is no standardization of the drugs used, no proper documentation of the procedure, insufficient information for patients about the side-effects of the drugs used, and no limit to the number of times a woman may be asked to go through the procedure. They do not disclose the fact that a ‗successful cycle‘ need not lead to a baby being born. Further, the clinics do not give exact information on the procedures and their possible side-effects. A noticeable trend is that the ART clinics are becoming the central hub of all surrogacy-related activities. Some of the duties of the clinics involve selecting the surrogate mothers – the bill lays down conditions that the surrogate mothers have to meet – and obtaining relevant information, informing all parties involved about their rights and obligations. The bill specifies what is and is not allowed regarding these topics. ART clinics are also required to treat all the information they obtain with utmost confidentiality. In practice this entails that ART clinics are not allowed to provide any information about surrogate mothers or potential surrogate mothers to any person. This creates a problem for intended parents since they have to turn to a middleman in order to find a surrogate mother. This is rather controversial, not just because of the involvement of agents, but also because it seems unfair that the intended parents, who are about to make a significant investment, have little control over the selection process. A better option could be to release personal information at the discretion of the surrogate.

LEADING CASES RELATED TO SURROGACY

Baby Manji v. Union of India((29 September, 2008))was the first case in India related to surrogacy.

FACTS: Baby Manji is a child born to an Indian surrogate. Her commissioning parents were a couple from Japan, who filed for divorce shortly before the child was born. The father, still wanting to take care of the child, faced severe legal issues as the Indian law prohibits single men to adopt. Neither the intended mother nor the surrogate mother wanted to take custody of baby Manji. The baby was eventually permitted to leave for Japan after the Japanese government issued a one-year visa to her on humanitarian grounds. However her grandmother needed to accompany her, because she was temporarily given custody over the baby. As a result of this case the debate within India about surrogacy has now intensified. In the controversy that followed, several infirmities in the arrangement came to light including the absence of a legal contract between the parties, a fact that many saw as a worrying reminder of the potential for exploitation of native surrogates. From a legal viewpoint, there were two landmark outcomes of this case. For the first time the Supreme Court of India was required to examine issues relating to a surrogacy agreement (even though these issues did not directly relate to validity or enforceability of the surrogacy contract itself) and, subsequent to this case, the Indian Council of Medical Research (ICMR) proposed the draft Assisted Reproductive Technology (ART) (Regulation) Bill 2008.

The Supreme Court did not rule surrogacy contracts as valid under Indian law, but it did not rule against their validity either. In fact, it elaborated on the concept of surrogacy, methods of surrogacy and recognised all forms of surrogacy, including altruistic and commercial. While not really ruling on the validity or enforceability of any aspect of surrogacy. These problems exist because surrogacy contracts are often not clear and hold no legal value.

Jan Balaz v. Union of India((Letters Patent Appeal No. 2151 of 2009 in Special Civil Application No. 3020 of 2008 and Civil Application))

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. The court observed: “We are primarily concerned with the rights of the two newborn, innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance.” The court considered the surrogacy laws of countries like Ukraine, Japan, and the United States. Because India does not offer dual citizenship, the children will have to convert to Overseas Citizenship of India if they also hold non-Indian citizenship. Balaz, the petitioner, submitted before the Supreme Court that he shall be submitting his passports before the Indian Consulate in Berlin. He also agreed that a NGO in Germany shall respond back to India on the status of the children and their welfare. The Union of India responded that India shall make all attempts to have the children sent to Germany. German authorities have also agreed to reconsider the case if approached by the Indian authorities. In May 2010, the Balaz twins were provided the exit and entry documents that allowed them to leave India for Germany. The parents agreed to adopt them in Germany in accordance with the German rules.

CONCLUSION

Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society viz. family. Non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. Active legislative intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto. It is high time that the Indian Legislature grapples with the issues arising out of use of new reproductive technologies and relinquishes the cocooned approach to legalization of surrogacy adopted hitherto. It seems ironical that people are engaging in the practice of surrogacy when nearly 12 million Indian children are orphans. Adoption of a child in India is a complicated and a lengthy procedure for those childless couples who want to give a home to these children. Even 60 years of Independence have not given a comprehensive adoption law applicable to all its citizens, irrespective of the religion or the country they live in as Non-Resident Indians  (NRIs), Persons of Indian Origin (PIOs) or Overseas Citizens of India (OCIs). As a result, they resort to the options of IVF or surrogacy. The Guardian and Wards Act, 1890 permits Guardianship and not adoption. The Hindu Adoption and Maintenance Act, 1956 does not permit non-Hindus to adopt a Hindu child, and requirements of immigration after adoption have further hurdles. There is a strong need to modify and make the adoption procedure simple for all. This will bring down the rates of surrogacy. Altruistic and not commercial surrogacy should be promoted. Laws should be framed and implemented to cover the grey areas and to protect the rights of women and children.