SURROGACY IN INDIA : ALTERING THE ROOTS OF MOTHERHOOD?
– Anurag Singh
3rd Year School Of Law, Christ University
– Sheetal S.
3rd Year School Of Law, Christ University
Surrogacy has become a hot topic today. Some support it as a boon to childless couples where as some regard it as a bane to the parties involved in surrogacy agreement. Surrogacy is favoured by some due to the element of Autonomy.1 They argue that Surrogacy is an exercise of reproductive choice and freedom to contract by women. Surrogacy can be traced back to Indian history. The world’s second and India’s first IVF (In Vitro Fertilization) baby Kanupriya alias Durga was born on October 3, 1978 in Kolkata. The legal aspects surrounding surrogacy are still nascent, complex, diverse and mostly unsettled.2 World over, the primary condition is that the child must be biologically related to any of the parents in order to opt for surrogacy. The development and change in mentality of society has given rise to surrogacy manifold.
Commercial surrogacy has been legal in India since 2002 and has emerged as an International Surrogacy destination. In 2008, the Supreme Court of India in the Manji Yamada’s Case3 held that the commercial surrogacy is permitted in India with a direction to the legislature to pass an appropriate law. At present the surrogacy contracts and ART guidelines are the guiding force. The codified law is yet to be adopted and implemented.4 Due to various socio- ethical reasons, surrogacy has become a topic of great interest among the government of different nations, medico-legal luminaries as well as public at large. Surrogacy is a method of reproduction whereby a woman agrees to carry a pregnancy and give birth as a substitute for the contracted party/ parties. Surrogacy may be Natural or Gestational.5
In traditional surrogacy, the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others such as the biological father and possibly his spouse or partner and thus the child that results is genetically related to the Surrogate mother.6
Commercial Surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save or borrow in order to complete their dream of being parents.7 This procedure is legal in several countries including India. Commercial surrogacy is also known as ‘wombs for rent’, ‘outsourced pregnancies’ or ‘baby farms’.8 Altruistic surrogacy is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, accommodation, diet and other related expenses).
LEGALITY OF SURROGACY
In most of the countries worldwide, the biological mother is considered as the child’s legal mother unlike in very few countries where the intended parents are recognized as legal parents by the virtue of the surrogate contract.9
The main criticism faced by surrogacy is that it is an exploitation of surrogate mother. She is exploited or commercialized emotionally, physically, socially and financially10. It is argued that due to the exchange of money involved Commercial Surrogacy commodifies the surrogates11. Commercial surrogacy is called by the term “wombs for rent”. In the international context, the commodification concern has been extended to concerns of the trafficking of women12. The Law Commissionof India has submitted the 228th Report on need for legislation to regulate the ART clinics as well as rights and obligations of parties to a surrogacy.13
ASSISTED REPRODUCTIVE TECHNOLOGY
(REGULATION) BILLAND RULES14 2008
• 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 resident in India or a non- resident Indian individual or couple, seeking surrogacy in India, shall appoint a local guardian who willbe legally responsible for taking care of the surrogate during and after pregnancytillthe child is delivered to the foreigner or foreign couple or the localguardian. 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 ofART 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.
• As per the guidelines a couple cannot have more than one surrogate at a time.
WHY IS SURROGACY NOT ACCEPTABLE ?
The moral issues associated with surrogacy are pretty obvious, yet of an eyeopening nature.15 This includes the criticism that surrogacy leads to commoditization of the child, breaks the bond between the mother and the child, interferes with nature and leads to exploitation of poor women in underdeveloped countries who sell their bodies for money. Sometimes, psychological considerations may come in the way of a successful surrogacy arrangement. As far as the legality of the concept of surrogacy is concerned it would be worthwhile to mention that Article 16.1 of the Universal 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”. The Judiciary in India too has recognized the reproductive right of humans as a basic right. For instance, in B. K. Parthasarthi v. Government of Andhra Pradesh,16 theAndhra 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 Oklahoma17, which characterized the right to reproduce as “one of the basic civil rights of man”. Even in Javed v. State of Haryana18, 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.19
Surrogacy according to few is a form of adultery though there are no other sexual relations except for a reproductive relation. Few consider it to be interference in a natural process of god’s own will. There arise many questions like if a child can inherit a surrogate mother’s property because of which society is unacceptable to such an idea.20
The society is resistant to surrogacy for the main reason that adoptions is surely an alternative available for infertile couples then why go for surrogacy if they can help a needy child21? This need for a child to be genetically related to the parents is seen as a sign of self-indulgence.
RIGHTS OF THE SURROGATE CHILD
Surrogacy is opted with the desire to have a child. Child is the main factor in surrogacy contracts. The best interest of the child shall be the paramount consideration of all surrogacy contracts. The rights of the unborn child and the new born child shall be protected by the surrogacy contracts.22
The right of the unborn child to be born healthy is to be protected. If the surrogate mother engages in activities which promotes abortion will definitely violates child’s right to life.23 If the surrogate mother is not healthy and is infected with any diseases which may be transmitted to the child, it again violate right of the unborn child. Pre determination of the sex of the child wil also violate the right of the child to be born with dignity.24 The new born child has the right to breast feeding for a minimum period of 3-6 months. This is need for child’s early psychological an immunological development. The immediate separation of the child fromthe surrogate will deny the child’s right to live in a healthy manner.25
b) Parental Guidance
The new Assisted Reproductive Technologies challenge our understanding of parenthood. Until now, a child has two parents- either natural or adoptive.
Now, with these technologies, a child can have up to three biological parents -the man who provides the sperm, the woman who provides the egg, and the woman who carries the pregnancy and gives birth. Sometimes more people also may be viewed under the law as a parent ofa child, the intended parents who sought to create a child throughassisted reproduction, and the husband of a gestational surrogate who has elected to keep the child or children to whom she gave birth. Which of these adults can be considered as the legal parents of the child is an answered question.26
Surrogacy has changes the concept of mother. The new technique forces this question on us for re-examination because it separates the functions and contributions of the process of having a child among different women whichotherwise, i.e., naturally, should have been assumed by one and the same woman. The process of procreation involves three contributions a) A woman who contributes her eggs b) A woman who carries the pregnancy and c) A woman who nurtures and rears the child. Where a dispute over the custody of the child arises, who will be granted the custody of the child is an issue. Sometimes the surrogate child may have five people who would claim parenthood – a genetic mother, a commissioning mother, a surrogate mother, a genetic father and a commissioning father. So, all this violates the right of the child to live under parental care.27
In case the intended parents die; or are divorced; or become too ill to look after the child prior to its birth; or where the surrogate mother or intended parents wish to have an unborn child aborted who would be responsible for the custody of the child is to be answered. If both the surrogate and the intended parents refuse to keep the child, the child will be denied of her right to live in familyAgain a legal dilemma arises out of the surrogate motherhood is as to whose name should be written in the birth certificate of the child problems could arise when the surrogate delivers an abnormal child. The commissioning parents may refuse to take custody of a child born with any physical or mental defects. This defies the rights of the child born with abnormalities to live with dignity and right to be cared by the parents.28
Determination of the nationality of the child is another issue. Does he belongs to the surrogate mother’s nationalityor to the commissioning couple’s nationality or to place where he is delivered should be answered. Again this infringes child’s right to nationality and citizenship.29 The case of Baby Manjie and Jan Balaz illustrate the practical aspects of the issue in India. Legitimacy of the Child is another legal issue. In India, the legitimacyof the surrogate child is not legalized and it also contradicts with the Indian law governing legitimacy of the child. Depriving the child of his identity violates her right to live with dignity.30
d) Right against Exploitation
Commercial Surrogacy is criticized as involving baby selling. It has been argued that in a commercial surrogacy agreement, child is treated as a commodity that is to be sold and brought Commercial surrogacy and the involvement of money in it for purchasing a baby is often criticized as child trafficking.31 All this violates the child’s rights against exploitationand right to live with dignity. Surrogacy contracts are silent on the issues of a mechanism to monitor the child once delivered to the commissioning parents. Amonitoring system is needed to avoid misusing the child for activities like begging, prostitution, trafficking and child labour and to safeguard child’s right to live with dignity.
e) Other Matters on the Welfare of the Child
The child has the right to privacy. If he does not want others to reveal him as a surrogate child, it should be protected. The child has the right to information about her or his genetic parent.32 This will avoid tragedies like chance of the child getting wedded to his/her sister/brother having the same genes of the sperm donor. Other concern is about whether child born through surrogacy has the right to succession to the parent’s property. There is no law on this yet. The principle that the best interests of the child must be paramount is also used against surrogacy.
Surrogacy has widened the family forms. Now surrogacy can be accessed by gay couples, single persons and unmarried couples. As there is no specific law in India dealing with rights of the gay couples, single persons and unmarried couples, allowing surrogacy to these persons raises issues with regard to the welfare of the child. How society will accept the child of a gay is anunanswered question.33 The case of Yonatan and Omer shows that India allows surrogacy to gay couples. An argument against gay couples having child is that it prevent children of same-sex couples from enjoying the advantages that flow from the assurance of ? A stable family structure in which children will be reared, educated, and socialized. It is said that there is a particular type of gender role strain in gay fathers who experience their gay and father identities as mutually exclusive, and who are constantly questioned by a society that believes in the primacy of women in child rearing roles. Similarly, in a study of the development of procreative consciousness among gay men shows that most participants viewed the coming- out process as linked with a belief that they will never become parents. Heterosexual also brought concerns that children of gay men will be harassed and rejected by their peers, that children of gay fathers will develop homosexual identities themselves.
Allowing surrogacy to single parent also aroused concerns about the problems of single parenting.34 A question again arises is that whether men is able to provide the nurturing and support needed by the child. The same question about child-rearing capabilities can be raised about single or coupled gay women and, indeed, about married couples as well.35
The studies shows that children in cohabiting families are at higher risk of poor outcomes compared to children of married parents partly because cohabiting families have fewer socioeconomic resources and partly because of unstable living situations of children born into marital unions experience the breakup oftheir parents. Children living with cohabiting parents, even if the parents later marry are likely to experience considerable instability in their living situations.
WHY IS THERE A NEED FOR INTERVENTION OF LAW?
There is no stipulation on the number of times an intending couple or individual can make use of surrogacy. Further there is no maximum age limit prescribed under the ART Bill 2010 for the couples or individual in order to be eligible to make use of ART though the minimum age limit is prescribed as 21 years.36
There is no screening of the socio-economic/family background of the couples. There are no eligibility criteria for an individual to be a fit parent to have child via surrogacy. There is no appointed government body to monitor the issue. TheART Billprohibits sex-selective surrogacy in consonance with the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act. But during the pendency of the Bill there is no means to check if the clinics are complying with the same; further there is no effective body to oversee the conduct and operation of clinics. Though Commercial surrogacy has been legalized in India, the question is how far it has been accepted in the society. In India surrogate mothers face a lot of criticism due to high levels of social stigma and ostracism.37
According to one of the prominent feminist argument against commercial surrogacy, it is wrong because it is a formof prostitution and thus is morally objectionable and unacceptable practices38 which stigmatizes surrogate women.39 Surrogate mothers mainly constitute of poor women who are looked down upon by the socially conservative culture, is cause enough for derision and is considered as unnatural aspects of pregnancy and reproduction.It is important to note that as legality of contracting “surrogate mothers” is debated in the courts, supporters are becoming more defensive about the morality of the practice.40
In the case of, the Matter of Baby M41, the New Jersey Supreme court ruled that surrogacy contracts are unenforceable; the opinion of the court was delivered by Judge Wilentz, who states that:
“We invalidate the surrogacy contract because it conflicts with the law and public policy of the state. While we recognize the depth of the yearning of the infertile couples to have their own children, we find payment of money to a “Surrogate” mother illegal, perhaps criminal, and potentially degrading to women.42
Thus we can see how society even if developing and modernizing does stick to few viewpoints that have been a part of society from very long. Such views are tough to be eradicated and continue to spread the same message among the new generation. It is important to be noted how surrogacy continues to be seen as prostitution and even form of adultery though there is no such sexual relationship but for a reproductive one.43 Society has been liberal on the idea of Altruistic Surrogacy now, but Commercial surrogacy-money at the root of Surrogacy44, continues to be criticized due to endless reasons, raising some hard moral questions. The society thus doesn’t well accept the notion of surrogacy due to contrasting views relating to it thus it is clear that much more workneeds to be carried out in this area, one that is an ethical and emotional minefield.45
The laws of the state back such views of the society and portray the same in them. The existing laws are no doubt ambiguous and need more clarity in.