“The Vatican is against surrogate mothers. Good thing that they did not have that rule when Jesus was born.”
– Elayne Boosler, American Comedian
Surrogacy has an impact, often a lasting one, on each person it touches. For the intended parents, it realises their long-standing aspirations of parenthood and for the surrogate mother, the impact varies according to the circumstances.
India was among the few nations which had commercial surrogacy as a legal option. While most of the countries in the west have commercial surrogacy as illegal, and some of them of allowing for surrogacy on the altruistic basis, there are many other countries where no form surrogacy agreements are recognized.
This, eventually, resulted in India becoming a prime destination for people all around the world to get surrogate mothers and that too at price which was around one-third of what they would have to pay in countries like USA and UK for a commercial surrogacy agreement.
But recently, the Union Cabinet approved the Surrogacy (Regulation) Bill, 2016, (hereinafter, “the Bill”) which prohibits commercial surrogacy in India with the only exception for Indian infertile couples married for five years, provided they bring a close relative to be the surrogate mother, strictly on altruistic basis. While the Supreme Court was of the opinion that commercial surrogacy should be brought within the ambit of law and be regulated, the legislature moved a step further to come up with a bill which practically put an end to commercial surrogacy itself.
This paper would explore the issue of commercial surrogacy in two major parts: firstly, before the Cabinet passed the Bill, and secondly, the impacts that the Bill could have if enacted as a law. The constitutional validity of surrogacy shall also be looked into.
Understanding Surrogacy
The definition of surrogacy is somewhat common and similar in most of the authoritative sources. The Supreme Court of India has expansively described and explained the concept of surrogacy, in the case of Baby Manji Yamada v. Union of India.[1]
According to the Court, surrogacy is a well-known method of reproduction in which a woman consents to become pregnant for the purpose of gestating and giving birth to a child, who she would not eventually raise, and rather give its custody to a contracted party. She would be the genetic mother of the child, which would come to be considered the traditional form of surrogacy, or could be only a gestational carrier of the child, who carries the embryo till the delivery after having been implanted with it.
On some occasions, surrogacy is the last resort available to parents who wish to have a child that is biologically related to them. Such intended parents might opt to arrange a surrogate mother for their child because the woman who intends to parent the child might be infertile, in such terms that she cannot carry a pregnancy term. This can be attributed to a variety of reasons including, hysterectomy, uterine inflammation, recurrent pregnancy loss or a health condition which makes it dangerous for her to be pregnant.
Surrogacy also provides a respite to a fertile female who intends on being a parent but, does not want to undergo the pregnancy term, besides opening up viable options to a single male who intends on being a parent or a homosexual couple.
In the Baby Manji Yamada case, the Court has described the various forms of surrogacy, which includes traditional surrogacy, gestational surrogacy, altruistic surrogacy and commercial surrogacy.
Traditional surrogacy is also known as the ‘straight method’. This method involves the surrogate mother being pregnant with her own biological child but, this child is conceived with the pre-determined notion of relinquishing the child to be raised by others, which could the biological father and his spouse or partner, of either sex. In such cases, the child is conceived via artificial insemination, which could be done at home itself, or could be done by intrauterine insemination (IUI) or intra cervical insemination (ICI), which are performed at fertility clinic.
The next kind of surrogacy that was explained by the Court was gestational surrogacy. In this type, the surrogate mother becomes only a gestational carrier, as she is impregnated by means of embryo transfer of a child that she is not a biological mother of. Such an arrangement might have occurred in order to relinquish the child to the biological parents or to parents who might be unrelated to the child, as the case may be, in order to raise the child.
Altruistic surrogacy is a situation where the surrogate mother receives no kind of monetary reward for her undergoing the pregnancy period, although the expenses related to pregnancy and birth are usually borne by the intended parents, usually.
And finally, the Court ventured upon explaining commercial surrogacy. In this form of surrogacy, the gestational carrier is paid to carry a child in her embryo till the time of gestation. It is usually resorted to by the wealthy intended parents, who can afford the cost involved, or by people who borrow or save in order to become parents by such means.
Constitutional Validity of Surrogacy
Article 21 of the Indian Constitution enshrines the principles of Right to Life, Personal Liberty, Privacy and earn a living.[2] With the right to privacy recently been recognised as a fundamental right of the citizens, within Article 21 of the Constitution[3], it becomes pertinent to explore the question whether the state can interfere with the reproductive choices of a woman.
The Andhra Pradesh High Court in the case of B.K. Parthasarthi v. Government of Andhra Pradesh,[4] held that reproductive rights of the citizens constitute a fundamental right and upheld the concept of ‘right to reproductive autonomy’ of an individual, as a facet of his right to privacy. When the concept of privacy is protracted to the reproductive rights of individuals, the interference of the state or restriction on the number of children, amount to a direct encroachment on one’s right to privacy.
A woman should be able to exercise her right to exercise her reproductive autonomy as per her wish. In line with this statement, if a woman chooses to help a needy couple to have a child of their own, then the state must not interfere with this humanitarian act and rather, such acts should be appreciated.
However, the truth lies in the fact that there is more to the practice of commercial surrogacy than mere humanitarianism. It is, speaking in technical sense, extraction of money against a new born child and hence, furthers the classist belief that money can buy you anything. The surrogate mother rents out her womb due to her financial vulnerabilities and eventually, it turns into becoming a recurring process where women time and again resort to being surrogate mothers as a profession. The babies born out of such commercial surrogacies are merely the subject of transaction and this should be seen in the light of human rights of the babies against being bought or sold.
Some academicians are of the belief that the practice of commercial surrogacy, in the manner as described above, perpetuates the abolished practice of human trafficking, slavery and prostitution in certain ways.[5] The woman is merely a carrier who is made to stay in hostels, obey the instructions of the doctors for the sake of the health of the baby without her free will, and is discarded with the birth of the baby. She does all this in exchange of meagre sum of money, and hence, it reflects the essence of slavery. The baby is “bought” in exchange of money, resonating the essence of trafficking. And finally, despite there being no actual act of sexual intercourse, the woman is impregnated by means of IVF or artificial insemination and hence, imitating prostitution.[6]
Issues with Surrogacy Laws before the Surrogacy Bill, 2016
Commercial surrogacy had been a full-fledged industry in India, with a whole structured approach to it. While most countries, including Australia, China, Czech Republic, France, Germany, Italy and some states of USA have banned surrogacy altogether, and few other countries like Brazil, Israel and United Kingdom have banned commercial surrogacy partially, India was amongst the few countries which had a very liberal rules for surrogacy, which often passed as having no regulation at all.[7]
As one of the world’s leading outsourcing destinations, India had capitalised on the comparative advantages of having a huge manpower resource, to play host to a range of foreign services and there had been a dramatic rise in the international surrogacy business India had been practicing, which provided the foreign couples with the opportunity to get surrogate mothers.[8]
Loose legal restrictions along with relative affordability, made India an ideal choice for a number of intended parents around the world. This in combination with the high rates of compensation for the Indian surrogate mothers, further, created a growing pool of suppliers for the booming industry.[9] India legalised commercial surrogacy in the year 2002, and since, it had to grapple with a wide range of bioethical issues with regard to the surrogacy industry. In order to deal with such grave implications, India needed to develop a more nurturing system of legal monitoring and regulation.[10]
At the outset, commercial surrogacy seems to be an attractive alternative for either of the parties involved. The poor surrogate mother gets much needed money and livelihood, an infertile couple gets their long-desired biologically related child and the country earns foreign currency. The real picture of the whole process is quite contrary to this.
The absence of a proper legislation governing the whole process of commercial surrogacy led to both, the intended parents and the poor surrogate mothers, being exploited by the middlemen and the commercial agencies. There is a pertinent lack of transparency in this whole process, and moreover, there are huge chances of getting involved in legal issues, due to the lack of clear and predictable rules and regulations governing surrogacy in India.[11]
The circumstances of the surrogate mothers are even worse and unethical. The poor, illiterate women from the rural backgrounds are often persuaded into such deal by the middlemen or their husbands in order to make easy money. These women are deprived of their right to autonomy over their own body and life.[12] Indian regulations lack even a provision for the psychological screening of such women or any sort of legal counselling for them, which is mandatory in USA.[13]
There are special hostels that are set up for the surrogate mothers. Empirical research done at such hostels show the deplorable state of the hostels.[14] The commercial agencies recruit such women who can be the surrogate mothers and then, shift them into such hostels for the whole duration of their pregnancy on the pretext of taking antenatal care. Quite ironically, the real intent behind such a step is to protect them from the ridicule of their community and avoid any social stigma of being out casted by their community. Such women spend the whole term of pregnancy with minimum contact with their home and household. They are only permitted to go for antenatal visits and are allowed to meet their families only on Sundays.
In case of an unfavourable outcome of the pregnancy, these women are unlikely to be paid. There is a lack of any provision making insurance or post-pregnancy medical and psychological support for them mandatory and this has been widely abused. Rich career women who do not intend on taking the trouble of gestation period, resort to hiring surrogate mothers in order to have their own biological child. The moral and ethical issues involved in such practice is endless, keeping in view that it has become more of a commercial racket where the most vulnerable sections of the society are exploited.[15]
There were various surrogacy hostels set up throughout the country to “manufacture a perfect mother-worker” because the economically weaker women, who formed the huge majority of the women willing to be surrogate mothers, did not have the means and resources to fend for themselves and the child during the gestational period.[16]
In addition to these issues, there are various socio-legal issues attached to the practice of commercial surrogacy. Commercial surrogacy has emerged as an industry, which involves increased medicalisation of reproduction and using the womb of a woman as a means to an end, calls for understanding the intricacy involved in the politics of reproduction.[17] This industry has been thriving on the patriarchal stigmatization of childlessness and the socio-economic inabilities of the vulnerable women who consent into being surrogate mothers for meagre amounts of money.[18]
Further, the practice of commercial surrogacy has thrived in Indian context because it has been painted with an image that since it does not involve any kind of sexual intercourse outside the marital bonds, it is morally acceptable for women to become surrogate mothers. The stigmatization by the society with regard to the extra-marital sexual intercourse has reinforced the practice of commercial surrogacy in the country.[19]
Surrogacy (Regulation) Bill, 2016 & Reproductive Rights
In this backdrop, the Surrogacy (Regulation) Bill, 2016, was approved by the Union Cabinet in 2016. It was recommended by the 228th Report of the Law Commission of India.[20] The Bill has attracted severe criticism right from the start and after the judgment of the Supreme Court in the Puttuswamy case, the discussions around the Bill has renewed. If passed into a law, it is likely to draw further challenges arising out of the concept of fundamental right to privacy.
The Bill had been introduced as a response to the voice of the activists and the human rights group, seeking action in the unregulated area of commercial surrogacy. The Bills seeks to guard the rights of the women and children, who find themselves in pertinent risk of exploitation and commodification as third parties, in the infertility related treatments. The standing question is that whether commercial surrogacy can be allowed in India, where inequalities, injustice and poorly implemented laws often place the women and children at the risk of exploitation. The Bill could shut the doors on unhindered commercial surrogacy practices in India and bring regulation in this sector.[21]
Provisions of the Surrogacy (Regulation) Bill, 2016
The pertinent provisions of the Bill are listed below[22]:
- The Bill will regulate surrogacy in India establishing a National Surrogacy Board at the Central level and State Surrogacy Board and appropriate authorities in the state and Union Territories. The legislation will ensure effective regulation if surrogacy, prohibit commercial surrogacy and allow for altruistic surrogacy to the needy infertile couples.
- The Bill permits surrogacy only for couples who cannot conceive a child. This procedure is not allowed in case of any other medical conditions which could prevent a woman from giving birth to a child.
- The Bill bars foreigners, homosexual couples, people in live in relationships and single individuals from becoming surrogate parents. only childless, straight Indian couples married for a period of 5 years, having proven fertility problems are eligible for surrogacy. NRIs and PIOs who hold overseas Citizens of India (OCI) cards have also been barred from opting for surrogacy.
- Eligible couples will have to turn to “close relatives”, not necessarily related by blood for altruistic surrogacy – no exchange of money between the commissioning couple and the surrogate mother. The Bill, which borrows heavily from UK’s altruistic surrogacy Bill, has changed the British provision of allowing only blood relatives to “close relatives”, a term that will be further elaborated in the rules.
- The surrogate mother and the intending couple need eligibility certificates from the appropriate authority. The Bill does not specify a time limit within which such certificates will be granted. It also does not specify an appeal process in case the application is rejected.
- For an abortion, in addition to complying with the Medical Termination of Pregnancy Act, 1971, the approval of the appropriate authority and the consent of the surrogate mother is required. The Bill does not specify a time limit for granting such an approval. Further, the intending couple has no say in the consent to abort.
Advantages of the Bill
The Bill comes at the time when there was a huge demand for a legislation to cover the subject of commercial surrogacy. The Bill focuses on prohibition of potential exploitation of the surrogate mothers and children born through surrogacy, and preventing the commercialising of surrogacy. The Bill provides for a 10-month period of which would be considered as gestational period, so as to ensure that no inconvenience is caused to the surrogate mother or to the intended parents.[23]
Disadvantages of the Bill
While the advantages of the Bill are limited, the disadvantages of the same are multifaceted.
The right to life, under Article 21 of the Constitution enshrines the right to reproductive autonomy, inclusive of the right to procreation and parenthood. It is not the domain of the state to interfere with such rights as they constitute the fundamental rights. It is the prerogative of the persons to decide the mode of parenthood, that is, whether to have child born naturally or by means of surrogacy. The Bill raises questions over the reproductive autonomy of a woman, which they are constitutionally barred from doing. Moreover, infertility cannot be made a compulsory criterion for availing commercial surrogacy, as that restricts the Freedom of Choice available to the citizens.[24]
The Bill allows for surrogacy only for married couples and to that extent, excludes the people belonging to the LGBTQ community, live-in couples, and single, divorced or widowed parents, thereby, criminalising their exercise of reproductive autonomy in this regard.[25] The State would have an uphill task of meeting the just, reasonable and fair standard, even if it tries to justify its stance by stating the complications that might arise with regard to the custody of the child, if surrogacy outside marriage was allowed.
Article 14 of the Constitution guarantees a fundamental right to equality. The Bill restricts the limited and conditional surrogacy to married Indian couples only and further disqualifies other persons, based on their nationality, sexual orientation, marital status and/or age. This shall not stand the equality test or the test of reasonable classification under the Article.[26]
The Bill contradicts the law of adoption in India. Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956, and Section 57 of the Juvenile Justice Act, 2015, allows conditional adoption for single and divorced parents.[27] The Bill also limits the autonomy of married couples and potential surrogates to a huge extent, by means of stringent conditions and requirements of eligibility certificates. The heavy onus laying prerequisites such as childlessness, five years of non-conception for intending parents, the surrogate being a close relative, amongst others, are prone to criticisms.[28]
Further, the Parliamentary Standing Committee on the Surrogacy Bill has recognised the fact that the Bill would raise further privacy concerns by forcing the couples to publicly declare their infertility, and making the surrogates disclose their identities.[29]
Besides this, the Bill blatantly ignores the fact that the women who opt for being surrogate mothers are from economically vulnerable backgrounds and for them, surrogacy is a source of livelihood. A complete ban on commercial surrogacy deprives them of their livelihood and rather, expects them to undergo reproductive labour without any compensation.[30]
Many nations, including UK, that have trailed altruistic surrogacy, have realized that this only tends to push the whole transaction underground. A woman who bears a child for another one is actually performing a service and needs to be compensated for it. If altruistic surrogacy is enforced, the commissioning parents have to find some non-legal means to pay the woman who has spent a year or more of her life trying to ensure the birth of a healthy baby or babies.[31]
Conclusion
We have explored and understood the nuances regarding surrogacy as a practice in general. Commercial surrogacy poses a greater problem to the society and the women who are exploited due to their financially weaker condition and as India was becoming a hub for commercial surrogacy, it indeed called for the piece of legislation to regulate the practice.
While it is accepted that there was a need for a legislation with this regard, large scale banning of commercial surrogacy is similar to trying to cap a volcano. The technological advancements in medical science cannot stop and no government can wish away the fact that it is possible to create babies outside the womb and implant it in the womb of a surrogate mother, and this has been there for decades now. Hence, the legislations that we come up with should deal with the problems associated with surrogacy, without interfering with the reproductive rights of a woman and freedom of choice available to them.
The Government should, rather, begin with examining the basic premise of the Bill, and remove the ban on commercial surrogacy. It should, instead, regulate the practice of commercial surrogacy, as the title of the Bill mentions, and look for appropriate compensation of the surrogate mothers. The provisions of the Bill should be made more clear and unambiguous in order to avoid any misinterpretation of them.
Edited by Vedanta Yadav
Quality check by Ankita Jha
Approved & published by Sakshi Raje
Reference
[1] (2008) 13 SCC 518.
[2] India Const. art. 21.
[3] Justice K.S. Puttuswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1.
[4] 1999 (5) ALT 715.
[5] Grazyna Zajdow, Surrogacy is Prostitution, Arena, available at: https://arena.org.au/surrogacy-is-to-prostitution-by-grazyna-zajdow/
[6] Id.
[7] Amrita Pande, Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker, 35 Univ. of Chicago Pres. 969 (2010).
[8] Mina Chang, Womb for Rent: India’s Commercial Surrogacy, 31 Harvard. Intl. Rev. 11 (2009).
[9] Id.
[10] Id.
[11] Pikee Saxena, Archana Mishra & Sonia Malik, Surrogacy: Ethical and Legal Issues, 37 Indian J. Community Med. 211 (2012).
[12] Id.
[13] Id.
[14] Id, Amrita Pande, Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker, 35 Univ. of Chicago Pres. 969 (2010).
[15] Id.
[16] Supra note 7.
[17] Sneha Banerjee, Emergence of the ‘Surrogacy Industry’, 47 Eco. & Pol. Weekly 27 (2012).
[18] Id.
[19] Amrita Pande, “At Least I Am Not Sleeping with Anyone”; Resisting the Stigma of Commercial Surrogacy in India, 36(2) Feminist Studies 292 (2010).
[20] Government of India, Need for Legislation to Regulate Assisted Reproductive Technology Clinic as well as Right and Obligations of Parties to a Surrogacy, Law Commission of India, available at: http://lawcommissionofindia.nic.in/reports/report228.pdf
[21] O Timms, Ending Commercial Surrogacy in India: Significance of the Surrogacy (Regulation) Bill, 2016, 3(2) Indian J. Med. Ethics 99 (2018).
[22] The Surrogacy (Regulation) Bill, 2016, PRS Legislative Research, available at: http://www.prsindia.org/billtrack/the-surrogacy-regulation-bill-2016-4470/; Insights into Issues: Surrogacy (Regulation) Bill, 2016, Insights, available at: http://www.insightsonindia.com/2016/12/01/insights-issues-surrogacy-regulation-bill-2016/
[23] Supra note 22.
[24] Supra note 22.
[25] Tarishi Verma, What are the Surrogacy Laws in India: Here is Everything You need to Know, The Indian Express, available at: https://indianexpress.com/article/research/karan-johar-surrogate-children-yash-roohi-what-are-the-surrogacy-in-laws-in-india-here-is-everything-you-need-to-know-4555077/
[26] Supra note 22.
[27] Arijeet Ghish & Nikita Khaitan, A Womb of One’s Own: Privacy and Reproductive Rights, Economic and Political Weekly Engage, available at: https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights
[28] Id.
[29] Id.
[30] Id.
[31] Supra note 22.
