SURROGACY: A move from conservative to progressive outlook

SURROGACY:A move from conservative to progressive outlook

– Manpreet kaur Rajpal*

The world of surrogate pregnancy has gotten quite a bit of media attention recently. As surrogate motherhood becomes more and more popular, accepted, and common, we are seeing more and more stories about it. From celebrity surrogacy to Oprah, we find many stories about surrogacy in the news. The world’s second and India’s first IVF (in vitro fertilization) baby,Kanupriya alias Durga was born in Kolkata on October 3, 1978 about two months after the world’s first IVF boy, Louise Joy Brown born in GreatBritain on July 25, 1978. Since then the field of assisted reproductive technology (ART) has developed rapidly.

Thegrowth in theARTmethods is recognition of the factthat infertility as a medicalcondition is a hugeimpediment in the overallwellbeing of couples and cannot be overlooked especially in a patriarchal society like India. A woman is respected as a wife only if she is mother of a child, so that her husband’s masculinity and sexual potency is proved and thelineage continues. Some authors put itas follows:The parents construct the child biologically, while the child constructs the parents socially. The problem however arises when the parents are unable to constructthe child through theconventionalbiologicalmeans. Infertility is seen as a major problem as kinship and family ties are dependent on progeny. Herein surrogacy comes as a supreme savior.

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. 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 herwomb ofa fertilized egg from other woman.

According to the Black’s Law Dictionary,surrogacy means the process of carrying and delivering a child for another person. The New Encyclopedia Britannicadefines ‘surrogatemotherhood’ as the practice in which a woman bears achild for a couple unable to produce children in the usualway. The Report of the Committee of Inquiry into Human Fertilization and Embryology or the Warnock Report (1984) defines surrogacy as the practicewhereby onewoman carries a child for another with the intention that the child should be handed over after birth.

The Black’s Law Dictionary :categorizes surrogacy into two classes: ‘gestationalsurrogacy’ and ‘traditional surrogacy’. They are defined as follows:

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

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

‘Gestational surrogacy’ is totalin the sense that an embryo created by the process of IVF is implanted into the surrogate mother. ‘Traditional surrogacy’may be called partialor genetically contracted motherhood because the surrogate mother is impregnated with the sperm of the intended father making her both the geneticand thegestational mother; the child shares make-up ofthe commissioningfather and the surrogate mother. Surrogacy is commercial or altruistic depending on whether the surrogate receives financial reward for her pregnancy or the relinquishment of the child, or not.

Now when I talk about surrogate, surrogate motherhood and commercial surrogacy , these are the concepts that are difficult to understand for most outsiders. Why do women become surrogate mothers?What aretheir views on commercialsurrogacy atlarge? What is it that motivates one woman to carry and give birth to a baby for anotherwoman? Theseare someof themost common questions which crawlin the mind ofpeople when they comeacross theword surrogacy so here one has tried to throw light on the same.

Most surrogates view surrogacy as the joyous sacrifice that it truly is. Havingbeen pregnantbefore, they understand thephysicaldiscomforts and emotional whirlwind that is pregnancy. Part of being a surrogate mother means that these women arewilling to make thesacrifices that they need to in order to help another family. Though most surrogates are caring individuals, generally, their desire to become surrogate mothers falls into one of three categories. Keep in mind that these terms are not industry terms, but ones I have created to help others understand how surrogate mothers view surrogacy.

Being a Surrogate: A Gift of the Heart

Nearly every woman involved in surrogatemotherhood sees a surrogate pregnancy as a gift from the heart. They recognize theircontribution in the process as a wonderfulgift they are giving to the intended parents, and feelthatthey are helpinganother familyin away they cannot possibly help themselves. For some surrogate mothers, this is themain guiding forcethat compelsthem to become surrogatemothers.They are “earning their wings” by giving the ultimate gift to a deserving family.

A Surrogate Mother’s Words :

“Surrogacy is a way we can give back to the

world in a significant way. We’re not rich

people. We would never be able to donate a

large sum of money for something like funding

a wing of a hospital.

We don’t have the monetary resources to

change the world. But I am able to grow big,

beautiful, healthy surrogate babies. This is a

way that my family can do something to change

our little corner of the world, by helping

another family in a way they cannot help

themselves. That’s what being a surrogate is

about to me.”

Many surrogate mothers who decide on surrogacy as a gift from the heart also mention that they want to teach their children about giving, sacrifice, and being unselfish.

Being a Surrogate: A Grand Friendship

I mention this category as a type of how surrogate mothers view being a surrogate because they differ slightly from those simply looking to give a great gift. These women also feel thatsurrogacy is a gift from the heart, but in addition to that, they are seeking a relationship with their intended parents. These surrogatemothers viewcommercialsurrogacy as a “Grand Friendship”.

Most surrogate mothers have characteristics from both of these two groups.

A surrogate who views surrogate motherhood as a “Grand Friendship” is often looking for intended parents who can commit, in advance, to remain in close contact after birth.

They are interested in receiving regular updates and photos of the surrogate babies as they grow up, and may even request regular, scheduled get-togethers as part of the terms of their contract. These women view the friendships they make with their intended parents, most often the intended mother, as the best part of the journey. The love and appreciation they receive is often the driving force behind their desire to become a surrogate mother.

Being a Surrogate : A Source of Income

Though most surrogate mothers give of themselves to help another family in a purely unselfish manner, there are somesurrogate mothers who view commercial surrogacy as little more than a financial arrangement. Most of the time, these surrogate mothers get into this community with the wrong intentions, and realize there is a lot more sacrifice than they initially comprehended well before undergoing a surrogate pregnancy.

These women are lured by the promises of receiving a substantial amountof money for commercialsurrogacy and honestly wantto “rent their wombs” for quick cash. These are the misinformed, “get rich quickers” of the surrogacy community, and yes, they do exist. For the most part, these women are not bad people, and are not trying to take advantage of others, they are just ignorant of the surrogacy process and the commitment involved. Surrogate mothers who chose commercial surrogacy as an income source rarely complete a second surrogacy. They find thatthe physical,emotional, and time commitments required of them for the amount of money they receive are just not worth it. Surrogacy truly needs to be an unselfish gift. But obvious this is one side of the coin so let’s now try to unveil the other side of it.

Surrogate pregnancy and surrogate motherhood are a topic of great debate worldwide. Many groups of people would like to see an end to the practice of commercial surrogacy and cite ethical issues as the cause. The entire idea of a child created in a test tube and carried by an unrelated woman is enough to drive fear into the hearts of many while questioning the ethics of surrogacy. The very thought conjures up visions of science fiction movies gone bad, or thoughts of the privileged few genetically creatingthe perfect child. Is surrogacy right? It is true that reproductive scientists are able to accurately tell if a created embryo might carry a specific disease,or even to tellits gender. Soon we may have the technology to determine hair and eye color, or even skills or hobbies of our potential children. We may see in our lifetimes that scientists are able to successfully clone a human being.

Probably the most common of thesurrogacy issues revolving around ethics of surrogacy is the perceived exploitation of the poor. This scenario suggests that the “rich” intended parents barrage the “poor” surrogatemother with fistfuls ofcash, swayingher financially to destroy her psyche. The moral issues associated with surrogacy are pretty obvious, yet of an eye-opening nature. 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 ofpoor women in underdeveloped countries who selltheir bodies formoney. Sometimes,psychological considerations may come in the way of a successfulsurrogacy arrangement.

As far as the legality of the concept of surrogacy is concerned it would be worthwhileto mention that Article 16.1 of theUniversalDeclaration of Human Rights 1948says, interalia, that “men and women offull 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 Pradesh1, the Andhra Pradesh High Court upheld “the rightof reproductiveautonomy” ofan 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 Oklahoma2, which characterized the right to reproduce as “one of the basic civilrights of man”. Even in Javed v. State of Haryana3, though the Supreme Court upheld the two livingchildren 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.

Now, if reproductive right gets constitutionalprotection, surrogacy which allows an infertile couple to exercise that right also gets the same constitutionalprotection. However, jurisdictions in various countries have held different views regarding the legalization of surrogacy. In England, surrogacy arrangements are legal and the Surrogacy Arrangements Act 1985 prohibits advertising and other aspects of commercial surrogacy. In the US also, commercialsurrogacy seems prohibited in many states. In thefamous Baby M case4,the NewJersey Supreme Court, though allowed custody to commissioning parents in the “best interest of the child”, came to the conclusion that surrogacy contract is against public policy. It must be noted that in the US, surrogacy laws are different in different states.

If the 1988 Baby M case5 in the US forced many to put on legal thinking caps, then that year also saw Australia battling with societal eruptions over the Kirkman sisters’ case in Victoria. Linda Kirkman agreed to gestate the genetic child of her older sister Maggie. The baby girl, called Alice, was handed over to Maggieand her husband at birth. This sparked much community and legal debate and soon Australian states attempted to settle the legal complications in surrogacy. Now in Australia, commercialsurrogacy is illegal, contracts in relation to surrogacy arrangement unenforceable and any payment for soliciting a surrogacy arrangement is illegal.

Surrogacy regulation may wellbe oneof Hilbert’s unsolvable problems. Only this is not mathematics and there are already many versions of the’solution’ in existence. Ithas been a decadesince theIndian Council of Medical Research (ICMR) and the Ministry of Health and Family Welfare have been trying to regulate the ‘fertility industry’ that is proliferating unchecked all over the country, and yet we do not have comprehensive legislation in our hands. So far, there have been a set of Draft Guidelines (2002), The Finalised Guidelines (2005), The Draft Bill 2008, The Draft Bill 2010 and a Law Commission Report (2009)- allwith a mix of contradicting,progressive, regressive, rights protecting and profit-protecting clauses. The draft Assisted Reproductive Technologies (Regulation) Bill and Rules 2010, the latest version, has not been made public yet, and only glimpses of some of its clauses can be caught through recent news reports.

Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS R IGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY.” The following observations had been made by the Law Commission:

“Opposing viewpoints of surrogate parenthood argue, with all the unfortunate babies being born today in this world, isn’t it the duty of the infertile couples out there to adopt them, instead of bringing more children, science babies at that, into this already overcrowded and difficult world?

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. “

Thus whether Surrogacy should be promoted or not is an ongoing discussion. But after observing the pro & cons of surrogacy and considering thereligious and traditional heritage of India one strongly asserts that couples seeking babies should go for adoptions.My opinion was firmly supported by senior gynecologists gathered at the 54th All India Congress of Obstetrics and Gynecologywho cautioned against the trend of surrogacy and said couples seeking babies should go for adoptions. At a session on `Surrogacy vs. Adoption’ held as part of the congress doctors said that childless couples renting wombs for nine months after which a readymade baby is handed over to them, should rather look at adoption as a better choice.

Thus in nutshell we can conclude thatAdoption should be promoted rather than Surrogacy. But as the earnest desire to have your own child is naturalso the need ofthe hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and to prohibit commercial ones. This willbe a welcome step which willdiminish the evils of surrogacy and will protect the rich Indian culture from being disparaged.

References :

1. Government of India Law Commission of India, Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy report no. 228, August 2009.

2. Indian express, Pune edition. 2003 Sept. 05, p 5.

3. Mathai Kamini, Making babies – The new Sunday express, Mumbai; views and reviews, 2008 Jan 6, Section-2, p 2.

4. Rayven Perkins Book ” How to Become a Gestational Surrogate Mother: A Step- by-Step Guide from Decision to Delivery”.