KSOL270

Commercial surrogacy and family law reforms in India

Surrogate Mother: A Commodity for Infertile Parents

In Surrogacy, one woman acts as a surrogate or a replacement mother and gets pregnant, for

another woman, sometimes called the intended mother, who either cannot produce fertile

eggs or cannot carry a pregnancy. In commercial surrogacy, the surrogate is paid a fee plus

any expenses incurred in her pregnancy. In altruistic surrogacy, the surrogate is paid only for

expenses incurred or is not paid at all.

Some feminists oppose surrogacy because of its political and economic context. They

disagree with the notion that women freely choose to become surrogates. They argue that

coercion at the societal level, rather than the personal level, causes poor women to become

surrogate mothers for rich women. If surrogacy contracts are legalized, they maintain, the

reproductive abilities of a whole class of women will be turned into a brokered commodity.

Some feminists have gone so far as to call surrogacy reproductive prostitutioni.

Those who favour commercial surrogacy object to characterizations of the practice as baby

selling. A surrogacy contract, they assert, is a contract to bear a child, not to sell a child.

Advocates of surrogacy see payment to a surrogate as a fee for gestational services, just like

the fees paid to lawyers and doctors for their services. Some advocates even argue that the

prohibition of commercial surrogacy infringes on a woman's constitutional right to contract.ii

Commercial surrogacy in India is legal. This industry is flourishing in India because of

availability of medical services, potential surrogate mothers and a large demand. Surrogate

mothers receive proper medical, nutritional and overall health care through surrogacy

agreements. iiiThe Law Commission of India submitted the 228th report on Assisted

Reproductive Technology procedures discussing the importance and need for surrogacy, and

also the steps taken to control surrogacy arrangements. Surrogacy arrangement will continue

to be governed by contract amongst parties, which will contain all the terms requiring consent

of surrogate mother to bear child, agreement of her husband and other family members for

the same, medical procedures of artificial insemination, reimbursement of all reasonable

expenses for carrying child to full term, willingness to hand over the child born to the

commissioning parents, etc. But such an arrangement should not be for commercial purposes.

A surrogacy arrangement should provide for financial support for surrogate child in the event

of death of the commissioning couple or individual before delivery of the child, or divorce

between the intended parents and subsequent willingness of none to take delivery of the

child.

The following are some of the many points put forward in the report. A surrogacy contract

should necessarily take care of life insurance cover for surrogate mother. One of the intended

parents should be a donor as well, because the bond of love and affection with a child

primarily emanates from biological relationship. Also, the chances of various kinds of child-

abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended

parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise,

adoption is the way to have a child which is resorted to if biological (natural) parents and

adoptive parents are different. Legislation itself should recognize a surrogate child to be the

legitimate child of the commissioning parents without there being any need for adoption or

even declaration of guardian. The birth certificate of the surrogate child should contain the

names of the commissioning parents only. Right to privacy of donor as well as surrogate

mother should be protected. Sex-selective surrogacy should be prohibited. Cases of abortions

should be governed by the Medical Termination of Pregnancy Act 1971 only.

ivA poor country like India badly needs a law on surrogacy and it badly needs to make

payments to surrogate mothers illegal. The poorer the country, the more fear of exploitation.

If in the long term the mother pays a heavier price, all short-term benefits have no meaning.

There have been instances of husbands encouraging their wives to go in for surrogacy. India

is now the only country in the world to legalise commercial surrogacy, if this article is right

about other countries of the world. Unlike in other countries, including the UK, USA and

France, in India the surrogacy agreements between the parties will be legally enforceable.

The new law will protect all parties – the genetic parents, surrogate mother and the child.

The new Assisted Reproductive Technology (Regulation) Bill & Rules, 2008, states that the

surrogate mother can receive monetary compensation for carrying the child in addition to

health-care and treatment expenses during pregnancy. But the surrogate mother has to

relinquish all parental rights over the child once the amount is transferred and birth

certificates will be in the name of genetic parents. The age-limit surrogate mother is between

21-45 years. Single parents can also have children using a surrogate mother.

If the 1988 Baby M case in the US forced many to put on legal thinking caps, then that year

saw Australia battling with societal eruptions over Kirkman Sisters Case in Victoria,

popularly known as ‘My Sister’s baby’. Linda Kirkman agreed to gestate the genetic sister of

her older sister Maggie. The baby girl was handed over to Maggie and her husband at birth.

This had sparked much community and legal debate and soon Australian states attempted to

settle the legal complications in surrogacy. Now, commercial surrogacy is illegal, contracts in

relation to surrogacy agreement unenforceable and any payment for soliciting of a surrogacy

arrangement is illegal.

Surrogacy in US, UK and Australia costs around $55,000 to $65,000. Does it make India,

where medical living costs are much cheaper: a hot destination for childless couples from

around the globe? No one knows, for there is no law to regulate or no system even to gauge

the extent of surrogacy incidents in the country. Baby Manji’s case, pending in the Supreme

Court, presented a stalemate with the judges asking “which law prohibits surrogacy” and the

NGO countering it with “which law permits surrogacy”. If the Baby M case in the US gave

birth to a global renaissance on surrogacy laws, hopefully the India Baby M case will be the

catalyst for an Indian legislation on the issue. The Sooner, the Better.

vTalking about other countries, in Canada, surrogate mothers are not allowed to accept

payment but unfortunately this has driven the practice underground. In Japan, it is the woman

who delivers the baby, and not the woman who provides the eggs, who is considered the

baby’s mother in a surrogate birth. In Australia not all states have laws on surrogacy but the

ones that do are Queensland, where surrogacy is illegal, Tasmania where it is an offence to

make or receive payment for surrogacy and contracts are not legally binding, and in South

Australia and Victoria where surrogacy contracts are illegal. Lastly in South Africa, paying

surrogate mothers is illegal.

There has been a mixed response on the point of surrogacy from the general public.

If any sensitive topic like this is raised in the society, a negative response or un-acceptance by

a part of the society. A typical objection to surrogacy (particularly that of commercial

surrogacy) is comparing the physical aspects of surrogacy to a form of prostitution. In both

cases one can view the women as selling physical, intimate, bodily services. Another

argument against surrogacy is that Surrogacy is a Form of Alienated Labour. This objection

borrows its logic from Hegel's philosophy of alienated labour. Many people work and are not

emotionally attached to the 'product' of their work or the work process for that matter. Well,

the difference with surrogacy (or prostitution for that matter) is that we're talking about

physical reproductive labour. Reproduction is something that many people believe belong in

the private sphere and should be surrounded with respect and emotional attachment.

According to people against surrogacy, women's reproductive capacities should not be used

as physical labour and the status of a child should not be relegated to that of a commodity.

One more argument is that Surrogacy Turn Babies into Commodities. During a pregnancy a

woman is supposed to bond with her unborn baby. Con speakers claim that surrogacy

prevents the mother from forming a natural bond to her baby and therefore forces her to

emotionally detach herself from her pregnancy.

viNormally the child is the end goal in a pregnancy. For the surrogate mother the child

becomes the means (as distinct from the goal), for something else, namely money. When the

child becomes a means, the child is commoditized, speakers against surrogacy claimvii.

Another argument against surrogacy is that there are so many children in need of a home i.e.

Adoption is better for the world. Everybody knows that the world is 'overpopulated' and that

there are many orphans whose parents have died from decease or because of war. There are

also many children who are living in children's homes because their parents couldn't afford to

keep them. The argument here is that people have a moral duty to care for the already

existing children in need of a loving caring family rather than proceed to make new babies

into an already too crowded world. Lastly, the society put forward the point that exploiting

third world woman as baby making machines. Contrary to many Westerns countries,

commercial surrogacy is legal in India and many Indian women have chosen to become

surrogate mothers for Western couples. The typical reason for couples choosing Indian

surrogate mothers over Western surrogate mothers is that they are cheaper.

i http://legal-dictionary.thefreedictionary.com/Surrogate+Motherhood4

ii http://aphilosopher.wordpress.com/2008/04/13/the-ethics-of-surrogacy

iii http://en.wikipedia.org/wiki/Commercial_surrogacy_in_India

iv www.mightylaws.in/542/outsourcing-motherhood

v http://en.wikipedia.org/wiki/Surrogacy

vi www.positive-parenting-ally.com/ethics-of-surrogacyvii

? http://www.positive-parenting-ally.com/ethics-of-surrogacy.html

This was a relatively long list of arguments against surrogacy. Let's now turn our attention to

the pro arguments in the discussion of the ethics of surrogacy. Surrogacy serves as a mean of

fulfilling the deep seated wish for a family. For couples who dream of having their own

children, infertility is frustrating and stressful.

Having children and fulfilling the wish for a family with the help of a surrogate mother is

therefore a possibility of living out that dream. Another positive provided by the people is

that adoption is not that easy. Contrary to sensible logic (there are many children in need of a

home - so adoption should be easy), being allowed to adopt a child is difficult and takes a

long time.

The whole paperwork process along with psychological evaluations and waiting list etc. may

take many years. Lastly as opposed to the comparison of surrogacy to prostitution, surrogate

mothers are conscious of their choice. Under normal circumstances surrogate mothers are

very conscious of their decision to carry someone else's child. They are well informed and

well paid. Most of these women have a positive experience and feel satisfied in what they

perceive as an altruistic gesture (even though they are getting paid).

The government is to bring in legislation to regulate the rent-a-womb business which is

thriving in India. And it begs legislation.

From as far away as America, Canada, the UK and Singapore they come and there are many

of our own too, and they all want to fulfil their dream of having their own baby. It costs them

less (approximately five time less) and there fewer legal hassles, if any at all. For Surrogacy

in India, these are simply guidelines. All that this means is that surrogate mothers need to

sign a “contract” with the childless couple. There are no stipulations as to what will happen if

this “contract” is violated.

True there are genuine cases where both the biological parents and the surrogate mothers

benefit (this too is questionable but more of that later) but the lack of a law is gaping

opportunity for exploitation, and no, this isn’t just about foreigners. Amit, of India Uncut had

brought this story to readers’ attention, a story of how young girls from orphanages were

being ‘hired out’ for surrogacy and they (the surrogates), themselves never got any money.

And even if the mothers do get the money, poor women often have little choice.

Citing an example of a contractual dispute relating to Surrogacy, in the matter of viii‘Baby M’

where the main matter was of contractual dispute arising out of surrogacy. The Sterns entered

into a surrogacy agreement with Mary Beth Whitehead in which she agreed to bear the child

of Mr. Stern (through artificial insemination) in exchange for costs plus $10,000 and to

terminate her rights as a mother (before the baby was even conceived). Upon the birth of the

baby (Melissa) and the subsequent handover to the Sterns as agreed, Mrs. Whitehead

"became deeply disturbed, disconsolate, stricken with unbearable sadness." She persuaded the

Sterns to give her one last week with the child by telling them that she was suicidal (so they

handed their child over to a suicidal woman) and she fled to Florida with her husband and the

baby. There, they took evasive manoeuvres to avoid detection before being ordered to turn

over the child. The Sterns filed suit, seeking possession and ultimate custody of the child and

enforcement of the surrogacy contract (in which the child would be placed permanently in

their custody and Mrs. Whitehead's parental rights would be permanently terminated). After a

lengthy trial, the court ordered that Mrs. Whitehead's parental rights be terminated and that

sole custody of the child be granted to Mr. Stern. The court also entered an order allowing the

adoption of Melissa by Mrs. Stern, all in accordance with the surrogacy contract. Mrs

Whitehead appealed that surrogacy contract is invalid because it conflicts with public policy

since it guarantees that the child will not have the nurturing of both natural parents,

presumably New Jersey's goal for families, it deprives the mother of her constitutional right

to the companionship of her child and it conflicts with statutes concerning termination of

parental rights and adoption.

She claims primary custody with visitation rights for Mr. Stern, both on a best-interests basis

as well as on the policy basis of discouraging surrogacy contracts. The standard for

determining best interests where the infant resulted from a surrogacy contract is that the child

should be placed with the mother absent a showing of unfitness.

Mr. Stern argued that the contract is valid and should be enforced. They have a right to

privacy, which includes the right of procreation and the right of consenting adults to deal with

matters of reproduction as they see fit. Given the circumstances, the child is better off in their

custody with no residual parental rights reserved for Mrs. Whitehead. Furthermore, the

statute which grants full parental rights to a husband in relation to the child produced, with

his consent, by the union of his wife with a sperm donor denied him equal protection of the

laws.

viii 225 N.J. Super 267 (N.J.Super.Ch. 1988)

The court said that the contract is void, remand for determination of Mrs. Whitehead's

visitation rights.

It was held that pre-birth contract under which a woman agrees to be impregnated, through

artificial insemination, by a man not her husband and to give up, irrevocably, all parental

rights upon the birth of the resulting child for the purpose of permitting the natural father and

his wife to adopt the child as their own where the woman is to be paid $10,000 and where

there is no showing that the woman is an unfit mother or that the natural father and his wife

are fit parents is void as counter to laws governing adoption and termination of parental rights

and the public policies of keeping children with both of their natural parents and of treating

the rights of natural parents equally concerning the custody of children.

Some of the cases that were referred to in this case were: Surrogate Parenting Associates v.

Commonwealth ex. rel. Armstrongix and Johnson v. Calvertx.

To summarize, the right to reproduce is a fundamental and an innate human right. Surrogacy

is the only way to overcome both biological and social infertility. It provides medically

infertile couples as well as socially infertile individuals who are not willing to get married

with a chance to have a child of their own. Blocking every way for minority members to

obtain the treatment they desire would be dangerous, as it could increase feelings of

frustration, suppression, and indignation (Pennings 2004). Unjust and illogical bans deny

people this right and lead to reproductive surrogate tourism. Legalization of gestational

surrogacy aims to defend the surrogate’s interests as well as those of the intended parents and

the baby born after the surrogacy. “Whenever you have an underground industry, you’re

going to have problems because there’s no guarantee that they’re going to follow standards of

safety or follow standard medical or ethical practice,” says Robert Klitzman, a bioethicist at

the Columbia University Medical Centre. “There’s a lack of transparency” (Reuters 2009).

Without any doubt, gestational surrogacy should be allowed as the last option in medically

assisted procreation if and when the interests and rights of all parties involved – the intended

parent(s), the surrogate, and the child – are taken into account and are protected by law.

ix 704 S.W.2d 209 (Ky. 1986)

x 851 P.2d 776 (Cal. 1993)

Traditional surrogacy, despite its simplicity and low cost, creates many moral and ethical

problems, making it an ethical minefield. In most cases in the United States, courts are

defending traditional surrogate mothers in the event of a dispute with the commissioning

parents. This tactic inflicts huge moral harm to the intended parents, to say nothing of the

financial losses. Traditional surrogacy programs should be implemented on a non-

commercial basis, as they are in the United Kingdom. The contract should not be enforceable

in this case. It is now recognized that “over time, professional opinion has shifted to a

position where surrogacy is recognized as an appropriate response to infertility in some

circumstances”xi.

There is still an urgent need for harmonization of the legislation concerning ART regulation,

making it more liberal and more permissive. The welfare of the child in medically assisted

reproduction is crucial. Surrogacy is already a social and legal reality. It is also an urgent

issue that needs to be addressed by legislation.

Although commercial surrogacy is legalized in India since 2002 but there is an immediate

need of some strong legislations as the practice of surrogacy has no longer remained just a

practice but has turned into a business and India is emerging as a leader in international

surrogacy and a destination in surrogacy-related fertility tourism and also more and more

commercial surrogacy programs should be introduced which may take the proper medical,

nutritional and overall care for the surrogate mothers.

An article stressing the artificial reproduction techniques and subrogation in the Indian

context and also including the contract of sale between the married couple and the surrogate

was written by Deepa Kharb, a Lecturer in Law at the Institute of Law and Management

Studies in Gurgaon, India. Considering the risks born by the surrogate mothers from India

and those in more regulated countries, it seemed pretty obvious that the former was bearing

the brunt of it. Afar from the right to the child or the physical risks of pregnancy, Indian

medical guidelines allow doctors to implant five embryos into a surrogate, whereas under the

British law, the permissible limit is two while many European countries are even moving

towards a single embryo implant. Apart from this, according to the British laws, a surrogate

mother who has provided an egg can claim the baby back within two years of the child’s

birth. In India though, the surrogate mother has no right over the child after the delivery is

xi van den Akker 2007

made. She can only cancel the contract when it is established that it was not a valid one under

Section 23 of the Indian Contract Act, 1872.

Until very recently, there has been a dearth of laws on the matter of surrogacy in India, which

has been made legal here since 2002. The Indian Council for Medical Research has laid down

certain guidelines for the clinics that undergo Artificial Reproductive Technologies (ART)

and their dealing with the surrogates. The Indian Ministry of Women and Child Development

in February 2008, considered recommending legislations to govern surrogacy, but so far this

is not imminent. Due to the lack of regulatory policies, there remains little legal remedy for

rural Indian women if complications arise in the pregnancy. Dr. Aniruddha Malpani, director

of the Malpani Infertility Clinic, states that, a ‘legal vacuum’ persists where even a

successfully resolved dispute could take up to 10 years in the prevalent court system of this

land. There are this pros and cons to the lack of government involvement. On the one hand,

growth in the private sector can proceed without heavy taxation or restrictive barriers.

However, it is not clear if a black market of surrogacy will develop, or whether these

surrogacy contracts will hold in a court of law. It is owing to the sole reason that if in case of

any arising disputes, there are just not adequate legal mechanisms to protect the interests of

the parties involved.

According to the words of Hank Greely, Chair of Stanford Centre for Biomedical Ethics, it’s

really a sort of libertarian versus sort of paternalistic debate on inherent human rights; as

there are some things that people shouldn’t be allowed to inherently do. It’s more like a

philosophical question on what one’s stances are on humanity and the world. It goes on the

paths of whether the poor should be allowed to sell one kidney? Or sell a heart? Or should

prostitution be allowed? Should poor women be allowed to be paid surrogates? It certainly is

not an issue that needs to be decided on the aspect of whether they are poor or not, but it does

seem to gain the extra additive when they are poor, and particularly strong extra force when

they are poor, they are foreign, of a different colour. It emphasizes a variety of traditional

hierarchies of dominance and non-dominance.

The practice of surrogacy should be disqualified on moral grounds owing to the trade being

similar on the lines of prostitution, is what the adversaries of surrogacy squabble on. Contract

pregnancy merely transforms what is ‘specifically women’s labour into a commodity’, a

barter of monetary compensation for the opportunity of exploiting the women’s bodies. The

view of a student of the National Law School of Jodhpur is that these surrogacy contracts are

‘dehumanizing and alienating since they deny the legitimacy of the surrogate’s perspectives

on her pregnancy. Deeply delving into the minds of a surrogate mother, it can be seen that

she makes an effort to avoid developing a special bond with the child in her as in her opinion;

the pregnancy is merely a way to earn the bread for her. (Asked during internship programme

in National Human Rights Commission).

Surrogacy therefore disgraces the unique mother-child bond as women can now be used for

the purpose of ‘breeder machines’. The subjectivity of women is improved by creating more

opportunities for them to participate in reproductive relationships rather than opportunities

equal to those available to men.

It is a strenuous task to come to a particular conclusion in a country like India whether the

women who are practicing surrogacy in the country are doing it in the exercise of their own

personal rights, or are they strained or coerced to do it owing to their husband’s or even

mother-in-law’s aspirations to satisfy the material and financial needs. These women could

however even be very comfortable with their resolution of becoming surrogate mothers.

Thus, in these types of cases, one can argue that the government has no right to interfere with

this practice, if women do not mind taking on what could possibly be viewed as a degrading

arrangement to some. It can also result in a situation where the women may be offering their

own bodies out of their own volition to surrogacy, yet still the money that offers various

future benefits to these women in future, could be seen as a type of coercion. There may

actually be no coercion directly but with these huge amounts of money being offered coming

into the picture, it may be so valuable to these women that they will be left with very little

choice other than not to deny it.

The rights of women to exercise their right of choice and also procreate are afforded to them

by surrogacy. They are accorded with the opportunity of a lifetime to make enough money

for them to last them a life and also give access to some of the upper necessities of life. For

the women who hire surrogate mothers, surrogacy guides the outlook that a women’s task in

society is only to procreate children. Surrogacy allows balance among both the partners who

both donate their gametes since the male normally acts as a passive partner to the resulting

pregnancy and delivery. It provides the women in the working sector or in the politics to hire

a surrogate mother than to face with the possibility of taking time off from their work. It also

permits the infertile women to have a child. Eliminating surrogacy would thus ‘violate

women’s self-determination and would infringe on the commissioning parties’ right to

procreate.’

Though in the recent times, it can be observed that gender equality seems to improve for

women of higher status that are able to afford surrogate mothers, the panic still lies on the

grave thought that surrogacy will continue to take advantage of the poor. It is not a clear

proposition that poorer women will of their own accord lease out their bodies for

reproductive purposes. One of the principal apprehensions is that ‘contract pregnancies

commoditise both women’s labour and children in ways that undermine the autonomy and

dignity of women and the love parents owe their children.’ Contract labour will never be able

to reason out the clear picture of the love and natural affection that the parents have towards

their children. It goes on the lucid paths of a popular commercial advertisement that, there are

some things that money can never buy. This is unquestionably the most underlying statement

to all these surrogacy related issues.

Key Words

Surrogacy, altruistic, commodity, prostitution, constitutional, willingness, insurance,

exploitation, globe, negative, ethics, childless, dispute, moral

Short Summary

The essay tries to examine the current situation of commercial surrogacy in India and

compare it to the situation in the world and provides valuable suggestions for the betterment

and development of the situation.

End Notes