In this article, Salonee Patil of ILS Law College, Pune put forth Legal arguments in favour & against surrogacy.
The world stands divided on the question of whether surrogacy is a legally and ethically sound practice. It has been brought to limelight with western world stars like Nicole Kidman, Sarah Jessica Parker but also Indian stars like Shah Rukh Khan and Karan Johar. Surrogacy agreements are not legalised in UK due to which the birth mother has a right to keep the child even though she has been paid for the process. Countries like Canada and Germany prohibit commercial surrogacy while both kinds prohibited in France. As of now, there is no international convention regarding surrogacy and it is a subject debated upon in recent times.
India also is amidst this discussion and is trying to weigh the pros and cons of the same. There is no law regulating surrogacy in the country however surrogacy is not illegal. Surrogacy was first recognised by the Supreme Court in the case of Baby Manji. The IMCR in 2002 issued guidelines trying to streamline the process of surrogacy in India.
This led to a major inflow of surrogacy in India. It is a well-known hub for people all over the world wanting to have a child but can’t bear one.
Legal status of Surrogacy in India
Human Beings have a natural instinct for procreation. It is one of the life functions. Every individual wants to bear a child of their own. However, this remains only a dream if a one out of the couple is infertile, or if the woman can’t carry the baby or in case of homosexual couples or people who want to lead a single life. Other reasons may include the age factor, uterine problems, failure of IVF, heart disease, etc.
Adoption is one of the options available to them however the major drawback in case of adoption is the fact that the adopted child does not bear your genetic material. This is where surrogacy steps in and rules out the shortcomings of the process of adoption for those who want ‘a part of themselves’ in their child.
Classification of surrogacy
With Surrogacy, it is possible to combine the sperm of the father with the ovum of the surrogate mother. Thus, the birth mother is also the genetic mother. This is classified as Traditional Surrogacy. It is also possible, with the advent of IVF (in-vitro fertilisation) to form a zygote and then transfer it to the surrogate mothers’ womb enabling the formation of a complete genetic descendant. This is called Gestational Surrogacy and is a preferred form of surrogacy.
Understanding Surrogacy
Surrogacy is the practice of a woman carrying child developed through her own ovum or a formed zygote till birth and then transfers all rights over the baby to the contractual parents.
Surrogacy was recognised by the Indian Supreme Court in Baby Manji case[1] and defined it as:
“..a method of reproduction, whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracting party.”
In 2002, the Indian Council of Medical Research[2] laid out guidelines for surrogacy, which made the practice legal, but did not give it legislative backing. This led to a booming surrogacy industry which had lax laws and no enforcement.
Depending upon the rationale or motive behind ‘carrying’ a child for someone, surrogacy can be further classified into two types-
- Altruistic Surrogacy– A surrogate is given no financial gain for carrying a child. Only realistic out of pocket expenses are covered by the intended parents. E.g. medical costs, travel, time off work, etc. Altruistic surrogacy can use either a traditional or gestational surrogate.
- Commercial Surrogacy– A surrogate is paid for carrying the child. Many couples are entering into overseas commercial surrogacy agreements to create a family.
Practice of surrogacy in India
Let us try and understand the status quo of practice of surrogacy in India.
It is usually the couples from abroad, or the rich class of people who approach below poverty line women to carry their children in exchange of a handsome sum of money. These women usually can’t even dream of such big money and are sucked into the system.
Since the state of affairs of India’s villages is poor, these women are usually made to stay in hostels which are specially constructed for them. This acts like a shelter from the social stigma of bearing a child for someone else. However, this is the advent of a very painful journey for most women as they are away from home. These women are provided nutritious food and are looked after for the purpose of the health of the baby. India is witnessing a rise of hospitals built specially for delivering babies through surrogacy.
After the child is born, these women have to go through separation from someone they cared for and sacrificed so much for. All the care and facility is taken away from them and they are sent back home. One may feel like discarding a package after procuring the gift from it. It is an emotionally challenging journey irrespective of the consent exercised by these women.
The good that comes out of it is that the person/ couple taking the child home is happy and the poor lady is able to pay off her debts and enable educating her children.
Surrogacy laws in India
The question of legality of surrogacy can be viewed on two fronts-
- The contractual legality of a surrogacy agreement and
- Other being the constitutional aspect of surrogacy practice.
We are primarily concerned with Commercial Surrogacy since it is the exploitable form of surrogacy. Altruistic surrogacy is done in good faith and hence disposes of most of the burden of unconstitutionality as well as illegality.
Surrogacy Agreement – Important clauses
The Indian Contract Act[3] governs all contracts across the territory of India. It makes provision for General and Specific Contracts. No light has been thrown upon legality of transacting upon a human child in exchange of money in Section 23[4] of the Indian Contract Act which deals with the legality of object and consideration in a contract.
- What considerations and objects are lawful and what not– The consideration or object of an agreement is lawful, unless— it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
Let us try to analyse the provisions of this section in order to see if Surrogacy agreements are void in India. Surrogacy agreements are not forbidden by law but whether it fits into all the other criteria is debatable.
Surrogacy in India is predominantly class oriented and it is usually the poor women from below poverty line in need of money who consent to carry a child for them. One way of looking at it is that these poor women are exploited in the name of money and their decision is motivated by earning money to satisfy their needs and may not necessarily be a conscious decision understanding reasonably what they are consenting to. Thus, there may be implied elements of fraud involved.
On the question of whether it is immoral or opposed to public policy is how one looks at the practice of surrogacy. If one thinks that a woman is doing a favour help those parents bear children who cannot naturally bear, it is a good deed. However, one cannot ignore the fact that these women end up ‘renting their womb’ and a surrogacy agreement has a living being as the subject matter of the transaction. Whether the parties can create such a right in their favour merely by consent terms is debatable.
Constitutional validity of surrogacy in India
Let us now examine some of the questions from the constitutional aspect of Surrogacy.
Right to Life, Personal Liberty, Privacy, earn a living have all been enshrined in the Constitution of India[5]. With right to privacy recently been recognised as a fundamental right in the Constitution of India, the question whether the state can interfere and dictate the reproductive choices of a woman comes into play. The Andhra Pradesh High Court in B.K. Parthasarthi v. Government of Andhra Pradesh[6] recognized reproductive rights as a fundamental right and upheld ‘the right to reproductive autonomy’ of an individual as a facet of his right to privacy. When the concept of privacy is extended to matters of procreation, state’s interference or restrictions on procreation amount to a direct encroachment on one’s privacy
A woman should be able to exercise her right to exercise her reproductive choices as she wants. She is enabling a needy couple to have a child of their own and that is a humanitarian practice appreciable by anyone.
However, in practice it has been seen that there is more to the practice of surrogacy than humanitarianism. It is technically contracting money against newborn child (in case of Commercial surrogacy). It furthers the belief that money can buy you anything. A woman is renting out her womb due to lack of financial resources at her disposal. It is like an occupation which women resort to time and again. Babies become subject matter of transaction. It can be seen against human rights to buy babies.
Some authors[7] believe that this reflects the abolished practice of human trafficking, slavery and prostitution in certain ways. The woman is a carrier who is discarded as soon as the baby is born. She does it in exchange of money. She is made to stay in hostels and do as the doctors instruct for the health of the baby. She has dictated around and has to follow what is told. This is like slavery. The baby is ‘bought’ in exchange of money and is taken back with the parent. This is like Trafficking. It is prostitution although the actual act of sexual intercourse does not take place, the woman bears a child through either artificial insemination or IVF.
SURROGACY BILL, 2016
The Indian Government felt the need to make provisions regarding surrogacy due to large-scale exploitation of the practice in India. However, the bill[8] that is formed seeks to put an end to commercial surrogacy as only couples legally married according to Indian Law for five years can use surrogacy only if a close relative is willing to carry the baby for them. It shuts out singles, homosexuals, live-in partners, foreign citizens from utilizing India as a source to fulfil their wishes.
The Bill was originally supposed to be an ART (artificial reproductive practices) bill laying down provisions streamlining IVF etc. has turned into a pure surrogacy regulating bill. It technically bans surrogacy under the garb of streamlining it.
Legal Arguments in favour and against surrogacy
Arguments in favour of surrogacy
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THE CHOICE AND CONSENT ARGUMENT
While there is no international charter recognising Right to Children, it is basic human desire and everyone should have the choice to have children of their own genetic material. The argument that adoption can be resorted to is baseless as it should be a matter of choice of the individual.
The surrogate is fully aware of what she is contracting to do and only as a result of consent does she choose to accept the offer made to her. It can be safely assumed that she knows the consequences of her act and goes ahead with her decision. As it is with her consent, there is no concealment of information and she makes a well-informed decision.
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THE REPRODUCTIVE SELF-DETERMINATION ARGUMENT
“Reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other relevant United Nations consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes the right of all to make decisions concerning reproduction free of discrimination, coercion and violence as expressed in human rights documents. In the exercise of this right, they should take into account the needs of their living and future children and their responsibilities towards the community.”[9]
This helps one understand that everyone has a basic right to decide the number, spacing and timing of their children and have means to do so. Surrogacy is one such method available to those who seek to have children of their genetic composition. It should not be denied to them especially when they do so without unjustly depriving the surrogate of getting something in return as a matter of her choice.
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BENEFIT OF EVERYONE
Both the contracting parties have a lot at stake and they gain a lot out of the contract as stakeholders. While one party is monetarily enriched with gifts, respect, gratefulness and money, the other party has the joy of having their own child. As the surrogates in India are poor, they can use the money to help pay off their debts or fund education for their children. It is huge money, the kind of money most of the surrogate mothers could not consider earning given to the lack of skill or lack of access of opportunity available to them. It makes these surrogate mothers independent and self-sufficient and self-efficient.
A study conducted in July 2012, backed by the UN, put the surrogacy business at more than $400 million with more than 3000 fertility clinics all over the country. India’s leading newspaper regard Surrogacy as a multi-billion industry and also facilitates as a great source of flow of foreign exchange currency in the market.
Arguments against surrogacy
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THE HEALTH ARGUMENT
FOR THE BABY
- ADAPTIVE NATURE: This argument primarily works against traditional surrogacy. Since traditional surrogacy involves use of the surrogate mother’s ovum, the foetus is a combination of the surrogate and the father. The baby inherits the surrogates’ genes. It is no secret that each person’s genes are adaptive to the environment they are born in. Thus, when a couple from foreign land decides to undergo traditional surrogacy involving the mother’s ovum, the risk to the health of the baby increases as it is only partly equipped with the genes to survive in the nation in which he will be brought up. This leads to harms in the initial phase of life of the baby as he has to undergo major changes with respect to the climate, weather, temperature he is born in and the same in which he will be raised.
- PRE-MATURE BIRTH: IVF is a recognised mode of formation of zygote to be implanted in the surrogate mothers’ womb. But this method has a major flaw. Babies born through IVF are said to be born prematurely and thus suffer problems. Pre-mature babies contract illness and the chances of survival are also scarce in spite of advent of technology.
FOR THE SURROGATE MOTHER
Surrogacy is seen as a way of earning money. It is practically classified as an industry. There are chances that women may resort to this method as a mode of earning their livelihood. This becomes problematic as they start contracting one baby after another. This is detrimental to the health of the surrogate mother.
Human body has limitation. Reproduction is a highly energy-consuming process and it takes a lot out of a woman. It is physically and emotionally challenging. The practice of bearing children repetitively make a woman susceptible to miscarriages. The body needs time to recover and the need of money may make women to overlook that. This may lead to complications in delivering the baby which poses threat not only to the baby but also to the mother.
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HOW FREE IS FREE CONSENT?
One of the main arguments put forth by ones in support of surrogacy is that the surrogate mother consents to ‘renting her womb’ in order to give birth to a child for another. They argue that it is okay for a woman to accept this practice altruistically as well as commercially. This brings us to the question whether consent is really free in this case.
It is not entirely incorrect to say that the status quo of surrogacy in India indicates that it is a class- dominated practice. Class-dominating meaning it is the rich who resort to the ‘help’ of poor women to bear their child for them. The incentive for poor women to agree upon such a request to carry a baby for someone she has never seen, met or interacted with is dominated with material gains. She is showered with money and gifts and in return has to carry a baby which is not hers, bear the hormonal changes, nurture the baby for 9 months and then give it up. She does this because the money she will receive will help her educate her children, pay off debts or even have her own house. In this case, can consent really be said to be free? Who is to determine whether the husband or relatives of the woman have forced her into this practice? Since the money is for the benefit of her own family, it is quite unlikely that such a surrogate will own up for the actual reasons behind her decision.
Thus, whether the consent is really free is a mystery.
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THE HARM ARGUMENT
“It is argued that the two suggested versions of the harm argument survive the current criticism against the standard harm argument. The first version argues that the child is harmed by being separated from the gestational mother. The second version directs attention to the fact that surrogacy involves great incentives to keep the gestational mother’s level of maternal-fetal attachment low, which tends to increase the risk of harm to the child. While neither of the two arguments is conclusive regarding the moral status of surrogacy, both constitute important considerations that are often ignored.”[10]
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THE HUMAN RIGHT (RATHER WRONG) ARGUMENT
According to Jennifer Roback Morse[11],
Surrogacy is a medically monitored procedure which results in creation of a child. The argument that the author is trying to put forth here is the abuse of the right of choice. With respect to IVF, the parents can choose and modify characteristics of the zygote. For ensuring implantation, more than one embryo may be implanted in the uterine wall, this leads to ‘intended abortion’ of the rest. It may also be unsafe for the mother. Rest of the fusions done for this process are either frozen for experimentation or are sent to the bins.
As part of a study on infertility clinics in New Delhi, sociologist Tulsi Patel[12] from the Delhi School of Economics found poor awareness among women about the health complications and risks that repeated egg donations and pregnancies can cause. The study also found that in some cases, clinics would transfer more than the permissible number of three embryos into the uterus to better the chances of pregnancy.
Conclusion
Surrogacy, like any other practice has its pros and cons. When we evaluate the two, one realises that there is a very thin line separating the use from the abuse. It is highly necessary in the light of the shortcomings faced as seen in Indian cases like Baby Manji etc. there be a strict codification and regulation of surrogacy laws not only in India but all over the world. A common piece of international legislation is necessary as it is a cross-boundary practice.
While measures should be taken that Surrogacy does not become an unethical practice, it may not be completely absurd to strictly regulate commercial surrogacy ensuring its benefit to couples who are infertile or cannot bear children. It is an industry working beneficially for both parties and the state should recognise that.
References
[1] Baby Manji Yamada vs Union Of India & Anr. [(2008) 13 SCC 518].
[2] IMCR guidelines on Surrogacy, 2002.
[3] Indian Contract Act, 1872.
[4] S. 23 of the Indian Contract Act, 1872.
[5] Article 21 of the Constitution of India, 1949.
[6] 2000 (1) ALD 199, 1999 (5) ALT 715.
[7]An Article by Grazyna Zajdow titled ‘surrogacy is prostitution’ can be found at https://arena.org.au/surrogacy-is-to-prostitution-by-grazyna-zajdow/
[8] The Surrogacy (Regulation) Bill, 2016.
[9] According to the 1994 Cairo Programme of Action, International Conference on Population and Development.
[10] https://www.ncbi.nlm.nih.gov/pubmed/2466423
[11] 15 Reasons to oppose Surrogacy- http://www.christianpost.com/news/15-reasons-to-oppose-surrogacy-164740/
[12] http://news.trust.org/item/20170119050530-j6hgv
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