SURROGACY: A DEBATE ON PREFERENCE AND PREJUDICE
Updated: Mar 30
Author: Payal Singh, I year of LL.M. from LPU
INTRODUCTION TO THE ISSUE
Surrogacy is a practice where a woman who is known as the surrogate mother, bears a child for a couple who is unable to produce children in a natural way. It could be because the couple has some health issue like infertility or disease, or it is for homosexual couples or in some cases nothing but a choice. In the so-called traditional surrogacy, the surrogate mother is impregnated through artificial insemination with the semen of the husband, while in gestational surrogacy, the wife’s ova and the husband’s sperm are both subjected to in-vitro fertilization, and the resulting embryo is then implanted into the surrogate mother. By agreeing to go through this procedure, the surrogate mother gives up all parental rights.[i]
This procedure for the first time got legislative attention in the year 1985. It has been a controversial issue in our society as people tend to be skeptical and about it. Surrogacy along with abortion raises a very important question which is- ‘the extent to which women should be free to exploit and control their reproductive capacity, even when they have no wish to raise a child themselves.’ The fact that women are now able to freely decide what they want to do in the matter of reproductive rights is quite baffling for our narrow society. Our stereotyped image of motherhood and of the appropriate circumstances in which children should be born is particularly challenged here. Additionally, the conflict between the potential of surrogacy to enhance female reproductive freedom, and its potential to allow exploitation and control by others of women’s bodies, has been responsible for considerably divided opinions among feminists on the desirability of its practice.[ii]
As per the Warnock Committee surrogacy is the ‘practice whereby one woman carries a child for another with the intention that the child should be handed over after birth’. This implies that the carrying woman acts at the request of another woman who is usually unable to have a child herself. Some theories show that it is often a man’s desire to have a child genetically related to him, which appears the prime motivation for many surrogacy arrangements.[iii] Well it may be well pointed out on this note that with the development of IVF and embryo technology the woman may not be genetically related to the child and the surrogacy may be describes just as ‘womb-leasing’. In English Law, the only statutory definition of surrogacy is contained in the ‘Surrogacy Arrangements Act 1985’ where under section 1(2), a surrogate mother is a woman who carries a child in pursuance of an arrangement made before she began to carry the child and made with a view to any child carried in pursuance of it being handed over to, and the parental rights being exercised by, another person to other persons.
A slandered definition of surrogacy has been forwarded by American Law reports. It states that- “A contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the child’s birth”.[iv]
On the note of defining surrogacy it may be noted that there are 3 kinds of surrogacy, which is provided as follows:
(a) Traditional Surrogacy: It involves the artificial insemination of the surrogate mother by using the sperm of the intended father.
(b) Gestational Surrogacy: This sort of surrogacy involves the creation of an embryo in a Petri dish and its implantation into the womb of the surrogate mother who carries it to the term.
(c) Donor Surrogacy: In donor surrogacy there is no genetic relationship between the child and the intended parents as the surrogate is inseminated with the sperm, not of the intended father but of an outside donor.
WHY IS IT CRTICISED?
This practice is now more common than one might think. Famous and rich people go for this procedure with more ease as it requires money. Recently Indian actress Priyanka Chopra welcomed her daughter through surrogacy. However it is not that simple when it comes to ordinary people. The concept of surrogacy, the possible motivations behind its practice, and the variety of forms it may take, is described by Gillian Douglas as- “Surrogacy has received more adverse criticism than any of the other ‘new’ reproductive techniques.” Due to ignorance, it has become a market with no values or ideals. There is no shortage of people who are ready to point out reasons why surrogacy is “wrong.” Surrogacy in a way commodifies the human body and some arguments have even gone so far as comparing surrogacy to prostitution, arguing that in both cases, women “sell” intimate or physical services. Surrogacy is risky and it exploits women, especially when the woman carrying the child is in a financially disadvantageous position. This is can be seen in most international surrogacy, where women could be particularly vulnerable and for her surrogate compensation can be life-altering. Some people claim that it goes against their religion. The fact that women go through rigors of child birth just to give it away, adds up to its criticism.
The surrogate mothers being less privileged are often unaware of their legal rights and due to their financial situation they cannot afford the services of attorneys in case anything goes wrong. To make matters even worse, if the pregnancy is aborted, the surrogates receive less than just a fraction of the payment. Along with this the contracts can also place liability on the mother for any risks including pregnancy-induced diseases, post-partum complications or even death. Many surrogate mothers face emotional problems after giving up the child. These are some of the reasons why surrogacy is still not accepted or encouraged in our society.
WHY IT SHOULD BE SUPPORTED?
As we deal with this debate, it is obvious that people have dissenting views on it. Some people do support it and place arguments for the same reason. It could be mutually beneficial for hopeful parents who desperately want to have a baby as well as for the generous surrogates who help them to reach this goal. Surrogacy gives LGBTQ parents and couples struggling with infertility an opportunity to be parents, which they may not have otherwise. If managed well, it could be a great chance for both parties to benefit. Surrogates are compensated fairly. However some might argue that surrogate compensation commodifies human life, but it is important to understand the reality of a surrogate’s commitment. Along with this there are protections to ensure that vulnerable women are not forced into surrogacy. The surrogate mother is cared for by the family and everyone has a voice in the process. In domestic surrogacy, intended parents and surrogates enter into this process willingly. Every party plays an active role in the process to ensure its noble process.[v] Giving a gift of parenthood is the biggest act one can do for someone and it should be treated with respect not judgment. At the end of it, the liberal argument for surrogacy is autonomy and free choice. As long as one does not harm others, everyone should have a wide sphere for doing what they desire. Women should have control over their reproduction process and no one should criticize it as long as everything is going according to law.[vi]
WHY DO WE NEED REGULATION?
In the past two decades, surrogacy has become quite a global phenomenon. We need regulation to control this process as one thing goes wrong and this noble process becomes a crime. In India surrogacy is a very big business worth billions. In the majority of cases, these procedures go smoothly; however, surrogacy's soaring popularity has come at a cost of potential mistreatment. As in recent times, several incidences have hit the headlines. On top of child welfare concerns, there are also several examples of surrogate mothers being exploited by agents or them being kept in inhumane conditions. There have been reports of poor treatment of surrogate mothers, with some agencies which refuge to pay surrogates if they do not obey strict requirements. Many times if child is born handicapped or disables, parents leave the child with the surrogate. There are clearly serious ethical issues stemming from the potential exploitation of women in poorer or underdeveloped countries, along with the dangers of treating children like commodities. This puts the life and identity of child in jeopardy, therefore India and every other nation that has legalized surrogacy should create a strong legal framework to regulate surrogacy.[vii]
SURROGACY LAWS IN INDIA
Up until recently, the surrogacy laws are guided by the 228th Law Commission report. This report was titled as “REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY”. This report is till date the only source of primary law in India as far as IVF and surrogacy are concerned. The Indian Parliament recently passed two landmark acts namely, ‘The Assisted Reproductive Technology (Regulation) Bill’ and ‘The Surrogacy (Regulation) Bill’. Both of them are going to have a strong impact on Indian women’s reproductive rights and health. Health Minister Mansukh Mandaviya conveyed in the Parliament that the idea behind the new legislation is to “regulate” and “supervise” assisted reproductive technology clinics and surrogacy and to curb the unethical practices which are related to issues like sex selection and exploitation of surrogate mothers. These new laws profess to put in place institutions like new National and State ART and Surrogacy Boards, along with a National ART and Surrogacy Registry. This is to advise the government on regulation and policy matters. The Registry will also maintain transparency in such matters. Any medical practitioner who commits any offense under the Act shall be punished with imprisonment extending up to five years and a fine of up to 100,000 rupees. Some women activists say that this clause will deprive poor women of an avenue to monetize their services as a surrogate.
The law mandates that any couple who initiates commercial surrogacy will be punished with imprisonment up to five years and a fine of up to 50,000 rupees in first case and for any subsequent offense, with imprisonment up to 10 years and a fine up to 100,000 rupees. In addition to this, the couple who are going through it has to include a man between the ages of 26 to 55 years and a woman of 25 to 50 years of age. The law also states that any woman agreeing to be a surrogate cannot be a surrogate more than once in her life and at the time she should be certified for medical and psychological fitness. Many experts have mixed feeling towards these new regulations as they fear that these drawbacks may contribute to the development of an illegal market in egg donation and surrogacy services.[viii]
From this research we can finally conclude that this practice is a great boon for childless parents and it gives women freedom to control their reproduction and child bearing process. As long as this process is regulated, it is nothing but a great act which is mutually beneficial. People should not criticize this process just because it’s unconventional. If criticism has to be done, we need proof and logic behind it back up our claim. All in all, it is a noble act and it must be supported and encouraged.
[i] BRITANNICA, https://www.britannica.com/topic/surrogate-motherhood (last visited Feb. 20, 2022). [ii] DOUGLAS GILLIAN, Law Fertility and Reproduction 141 (London, Sweet & Maxwell, 1991). [iii] WHEAT KAY & STAUCH MARC, Text, Cases & Materials on Medical Law 389 (New York, Rouledge Cavendish 2006). [iv] American Law Reports, Validity and construction of Surrogate Parenting Agreement, 77 (1989). [v] AMERICAN SURROGACY BLOG, https://www.americansurrogacy.com/blog/understanding-surrogacy-controversy-whats-the-big-deal (last visited Feb. 21, 2022). [vi] Priya Setty, India's unregulated surrogacy industry, THE LANCET (Feb. 20, 2022, 9:00 PM) https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(12)61933-3/fulltext. [vii] Claire Fenton-Glynn, Surrogacy: Why the world needs rules for 'selling' babies, BBC NEWS (Feb. 21, 2022, 8:00 AM), https://www.bbc.com/news/health-47826356. [viii] Neeta Lal, India’s New Reproductive Laws Trigger Debate, THE DIPLOMAT (Feb. 21, 2022, 10:00 AM), https://thediplomat.com/2022/01/indias-new-reproductive-laws-trigger-debate.