Paper Final (Mail Copy)

8/3/2019 Paper Final (Mail Copy)

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NATIONAL CONFERENCE ON SURROGACY: ISSUES AND CHALLENGES

Surrogacy: A Viable Sector of Human Welfare and Altruism

THEME: MEDICO ETHICAL PERSPECTIVES

SUB THEME: The Medical Jurisprudence behind surrogacy in the light of its EthicalImplications

Submitted by:

1. Shivangi [email protected]

+917709972230

2nd Year

Symbiosis Law School, Pune

2. Nikhil Mishra

[email protected]

.in

+918390755376

2nd Year

Symbiosis Law School, Pune


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Surrogacy: A Viable Sector of Human Welfare and Altruism

Shivangi Misra

Nikhil Mishra


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Abstract

The concept of surrogacy can be best

reasoned by Ayn Rands philosophy of

objectivism.

My philosophy in essence, is the

concept of man as a heroic being, with

his own happiness as a moral purpose

of his life with productive achievement

as his noblest activity and reason as his

only absolute

Surrogacy and its reason lies within the

need of the 15% couples who cannot

reproduce and the women who can by the

means of surrogacy can supportthemselves and also get a sense of

accomplishment. In this paper the option of

surrogacy is closely examined from its

medico-ethical perspective and carefully

brushing its legal and economic

implications.

We cannot take a stand and say its good or

bad but anything unregulated and

unchecked leads to the possibility of a failed

idea. Surrogacy in simple terms, is hope forchildless couples and hope for women from

any social and economic background who

wish to empower themselves by helping the

same. Since when is that wrong? A

situation where only thing to lose to, is a

scope of exploitation and which industry is

risk free in that?

The Assisted Reproductive Technologies

(Regulation) Bill, 2010 is a step towards the

regulation of surrogacy in India. It aims to

redefine the trend of fertility tourism in

India and to ensure that the services

provided by the fertility clinics are apt. The

Bill is a safeguard against the breach of

social, medical and legal rights of the

surrogate mother. Presently the


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aforementioned clinics offer a plethora of

services such as Intra-Uterine Insemination

(IUI), Artificial Insemination with Husbands

semen (AIH), Artificial Insemination using

Donor Semen (AID), involving the use of

donated or collected gametes, infertilitytreatment involving the use and creation of

embryos outside the human body and

processing or storage of embryos etc. The

services offered if used inappropriately can

be a blotch on the face of such a

reasonable and effective medical

procedure.

Various medical complications in surrogacy

will be discussed in the paper and how the

role of regulatory bodies such as the IndianCouncil of Medical Research (ICMR) and

the introduction of the ART (Regulation) Bill,

2010 would cover the health and comfort as

an important basic requirement for

surrogacy contracts will be discussed at

length in the paper. Therefore, law can be

instrumental in making surrogacy contracts

transparent and effective. The paper shall

discuss citizenship issues along with the

rights and duties of both the surrogate andthe intended parents. Taking human body

for what its meant for and without any

adverse health and psychological impacts is

a positive option hiding behind the ghost of

coercion and misuse.

Under medical approval and with the free

consent of surrogates with no space for

unethical exploitation of surrogates, this

paper suggests a better and more liberal

form of surrogacy laws in India. Thus

breaking the shackles of prejudices and a

closed opinionated society where any form

of unnatural option is looked down upon

with scepticism. In this ever changing

degree of acceptance where we are open to

ideas, we cannot ignore the economic


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implications of, as people may call it

trade, we accept it as a viable sector of

human welfare and altruism.


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1. Introduction

Surrogacy is fighting an ethical battle on numerous fronts. Religionopposes it. Most of the countries oppose it. The morality andconscience of the masses oppose it. Yet it persists becausesurrogacy can be opposed or accepted but cannot be ignored now.

The surrogate agreement is made between a couple suffering frominfertility wholly or partly and a surrogate mother. Contracts mightvary, they always have provisions related to the rights andresponsibilities of all parties, both pre and post birth of the child andduring the pregnancy. The core of the agreement is the promise bythe surrogate mother to give up custody of the child and thepromise of the other party to accept the child. Thus, surrogacy

continues to be a complicated web of legal, social, ethical andtechnological issues. Arguments against commercial surrogacy arebased on the fact that it essentially means the commoditization ofmotherhood that is "womb for rent." Some also believe thatcommercial surrogacy exploits women, children and the meaning ofmotherhood and fatherhood in our society. This exploitation canonly occur in a very uncontrolled and unregulated environment. Ifwe take that factor out of the picture, surrogacy is a beautiful way touse what human body is capable of performing.

Of all the applications of the new Assisted ReproductiveTechnologies ARTs (including artificial insemination (AID), in

vitro fertilization (IVF),embryo transfer, and embryo freezing)surrogacy has far-reaching consequences. It raises a plethora ofethical and legal issues. It has been periodically debated in courtsand has garnered consideration by Commissions and Inquiries allover the world. The distinction between surrogacy and othertechnologies lies in the circumstances of its application, anagreement whereby one woman bears a child for another andrelinquishes the infant at birth.

Surrogate motherhood has both advocates and detractors, eachwith strong arguments in their favor. A number of importantquestions lie at the heart of the debate over the ethics and legality

of surrogacy: Does surrogacy necessarily involve the exploitation ofthe woman serving as the surrogate mother, or turn her into a


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commodity? What rights does the surrogate mother have? Issurrogacy equivalent to baby selling? Should brokers or thirdparties be allowed to make a profit from surrogacy arrangements?

All opponents of surrogacy argue it to be a morally repugnantpractice, especially when it involves a commercial transaction. It isoften said that commercial surrogacy turns the miracle of humanbirth into a financial transaction, reducing the child and the womanbearing it to objects of negotiation and purchase. It turns womeninto reproductive machines. Critics also maintain that surrogacyleads to a confused parent-child relationship that ultimatelydamages the institution of the family. They argue that coercion atthe societal level, instead of personal level, causes poor women tobecome surrogate mothers for the affluent and it ultimately leads tothe transformation of the reproductive abilities of a whole class of

women into a brokered commodity.

Advocates for surrogate motherhood propose it as a humanesolution to the problem of infertility. They note that infertility iscommon, affecting almost one out of six couples, and that surrogatemotherhood remains the only option for some couples who wish tohave children to whom they are genetically related. It is said thatadoption does not adequately meet the needs of infertile coupleswho wish to have a baby. Those who favor commercial surrogacyobject to characterizations of the practice as selling of babies. Asurrogacy contract is a contract to bear a child, not to sell achild. The payment made to a surrogate should be seen as a feefor gestational services, just like the fees paid to lawyers anddoctors for their services.

It can be argued that in a successful surrogacy arrangement, allparties benefit. The intended parents take home a cherished child,and the surrogate receives a monetary compensation forundergoing the pregnancy and the satisfaction of knowing that shehas helped someone realize a special goal.

2. Fertility Tourism in India

The phenomenon of fertility tourism isnt new. In late 1970s patients withfertility problems started travelling abroad to undergo treatments such as


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surrogacy, third party egg and sperm transfer and in-vitro fertilization etc.

which are collectively known as Assisted Reproductive Technologies

orARTs.Over the years the demand for ARTs rose steadily and due to

emerging ethical and medical concerns, industrialized nations movedtowards regulating commercial surrogacy. Strict legislation and laws in

such countries favoured the rise of commercial surrogacy in countries

such as India. India soon rose to top of the ladder due to minimal costs,

substantial number of women willing to engage in surrogacy contracts,

outsourcing of Indian labour and most important of all, vagueness in laws

governing the aspect of commercial surrogacy and surrogacy contracts. It

is pertinent to note that commercial surrogacy in India enjoys legal status.

Indias rapidly growing commercial surrogacy industry is estimated to be

around 445 million US dollars per year.1

In November 2007 a Japanese couple Ikufumi and Yuki Yamada travelledto India to hire a surrogate mother who would bear a child for them. Their

desire to have a child was fulfilled at Akanksha, an Infertility Clinic which

has become a global hub for surrogacy over the years, located in Anand,

a small town in Gujrat. Under the guidance of Dr. Nayana Patel, the

director of the clinic, a surrogacy contract was arranged between the

Yamadas and an Indian woman named Pritiben Mehta. The clinic

generated an embryo from Ikufumi Yamadas sperm and an egg

harvested from an anonymous Indian woman which was further implanted

into Mehtas womb. In June 2008, the Yamadas underwent a divorce. On

July 25, 2008, Baby Manji was born to the surrogate mother. Yuki

Yamada expressed that she didnt intend to raise the child. As per the

contract, the egg donors responsibility had ended the moment she

provided the egg and with the birth of the child, the surrogate mothers

responsibility had ended too. This led to a huge legal and diplomatic

crisis. Upon Yuki Yamadas refusal to accept her, Baby Manji was left

without a mother. She lost identity and nationality. The surrogacy contract

was devoid of any clause referring to such a situation. The parentage and

the nationality of Baby Manji were legally improbable to determine under

existing notions and laws relating to family and citizenship in Indian and

Japanese law. The case generated articles in newspapers such as The

Hindustan Times, Daily News & Analysis, The Times of India as well as

1Surrogacy a $445 million business in India, The Economic Times, August 25,2008


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The Economic Times, Japan Times, The New Zealand Herald, South

China Morning Post, The Australian, The Advertiser (Australia), London

Times, the Daily Mail, BBC News, CNN, and The New York Times along

with huge media outcry in India.2

Reproductive holidays in India are a real getaway for foreignersfrom conditions back home. Fertility tourists are people desperateto break free from not only financial, but also legal and ethicalconstraints. Indian clinics woo patients with the lingo of free choiceand a can-do stance.

An economic outlook of the Indian Surrogacy industry suggests that it

provides empowerment and monetary benefits to surrogate mothers and

the aforementioned fertility clinics.

As Dr. Nayana Patel puts it:

A woman who becomes a surrogate is paid more money than she could

earn in her entire lifetime. She is doing something that she believes is

good and makes her proudbearing a child for a couple desperate to

start a family, while at the same time providing for her own family. Its

easy for people in India and abroad who have never experienced infertility

or poverty to say this is exploitation. But we are providing a service that

profoundly changes peoples lives for the better.

However, she also outlines the scope of exploitation:

It is sad if the surrogates are going into it purely because they need themoney and there is also the risk that the children are being treated as

commodities, which would be totally wrong.

In order to regulate and protect the rights of the subjects involved,

the Indian Council of Medical Research(ICMR) has given Guidelines in

the year 2005 regulating Assisted Reproductive Technology procedures.3

The 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

2Institutions in Crisis, The Kenan Institute, Duke University3 www.icmr.nic.in/1123aspx


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arrangements. The following observations have been made by the Law

Commission:

y 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 parent(s), etc. But such an

arrangement should not be for commercial purposes.

y 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.

y A surrogacy contract should necessarily take care of life insurance

cover for surrogate mother.

y 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.

y Legislation itself should recognize a surrogate child to be the

legitimate child of the commissioning parent(s) without there

being any need for adoption or even declaration of guardian.


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y The birth certificate of the surrogate child should contain the

name(s) of the commissioning parent(s) only.

y Right to privacy of donor as well as surrogate mother should be

protected.

y Sex-selective surrogacy should be prohibited.

y Cases of abortions should be governed by the Medical

Termination of Pregnancy Act 1971 only.

However, these guidelines have no legal sanctity and are not binding.

Silent on major issues, they lack teeth and are often violated. Elusiveness

on fundamental issues such as surrogates rights, surrogates minimum

age, free consent, and requirements regarding adoption in the guidelineshas attracted a lot of criticism.

Introduction of the ASSISTED REPRODUCTIVE TECHNOLOGIES

(REGULATION) BILL 2010 by the Ministry of Health and Family

Welfare, Govt. of India is a step towards the regulation surrogacy in

India. It aims to put a check on the rapid growth of fertility clinics

throughout the country. Its becoming important to guarantee that the

services offered by such clinics are within the realms of ethics associated

with surrogacy. The bill also aims to provide surrogacy within a framework

of proper ethics and medical practice to provide infertile couples with an

opportunity to bear a child.

A careful perusal of the present situation in India highlights the

importance of such a regulation. However, surrogacy need not be viewed

as a chalice to pour down a never ending shower of profit. It is human

altruism redefined. As Elizabeth Stone puts it, Making the decision to

have a child-it's momentous. It is to decide forever to have your heart go

walking around outside your body."

3. Medical Ethics & Surrogacy: Creating Life on a

Petri Dish

Traditional or Conventional or Genetic Surrogacy involves the artificialinsemination of a woman who agrees, usually in return for payment, to


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give the resulting child to the childs commissioning parents by

surrendering her parental rights. Often, the fathers infertile wife becomes

the childs adoptive mother. The woman bearing the child is in most cases

genetically related to the child, though Gestational Surrogacy (in whichthe ovum is provided by the fathers infertile wife or other donor) is

possible as well.

Traditional Surrogacy dates back to biblical times. In Genesis Chapter 16

1-4,4 Sarah, the wife of Abraham was unable to bear a child to him.

Hagar, Sarahs maid mated with Abraham and their union gave her a

child. Genetic surrogacy has been around for a while but it took many

years for Gestational surrogacy to happen.

The first successful Gestational surrogacy was reported in 1985.5

The woman was without a uterus but the ovaries were functional.Through In Vitro Fertilization an embryo was created using the eggand the sperm from the couple. The embryo was implanted into ahost uterus of a surrogate for gestation and delivery. Its importantto note that in Traditional surrogacy, the child bears geneticresemblance to the surrogate mother while in Gestationalsurrogacy, as mentioned above, the child bears no geneticresemblance to the surrogate mother.

The need for traditional Surrogacy might arise out of the followingsituations:

y Non functional ovariesy Maternal genetic diseases

While gestational surrogacy has totally different causal factors:

y Absent uterusy Recurring miscarriagesy IVF implantation failures

If the female partner of the infertile couple has poorly functioningovaries along with a missing uterus, another woman can donate her

4Genesis Chapter 16 1-4, The Holy Bible5New England Medical journal 1985, 313:135


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eggs. The donated eggs are then fused with the sperm from themale partner of the couple and the consequential embryo isimplanted into the gestational surrogate mother.

The process of gestational surrogacy involves the removal of eggsfrom the female of the infertile couple. The eggs are then combinedwith her partner's sperm. The number of eggs removed varies fromcase to case, though on an average, its close to 10. Thefertilization rate depends on the sperm and eggs. Upon theimplantation of the embryo, the extra embryos are cryogenicallypreserved for future use and also as a backup option if thepregnancy fails or miscarriage happens. The preserved embryoscan be thawed and transferred without the IVF process later on.This process is called Frozen Embryo Transfer.This process hasa potential for misuse. The preserved embryos can be used by the

fertility clinic without the consent of the genetic parents formonetary gains with a malafide intention. This would essentiallymean that the clinic is considering the embryos as a commodity.Such practices have been reported in recent times.

A lot of ART centers promote Gamete Intra-Fallopian Tubetransfer (GIFT) or Zygote Intra-Fallopian Tube Transfer (ZIFT)for gestational surrogacy. The GIFT procedure involves theimplantation of eggs and sperm directly into the Fallopian tube i.e.the site of natural fertilization. In ZIFT procedure, the fertilizedembryos are transferred into the fallopian tubes instead of theuterus.

In Vitro Fertilization and Embryo Transfer involves mixing spermwith ova in vitro in order to produce embryos. The embryos are thentransferred via surgical incision into a womans uterus. Ordinarily,multiple embryos are transferred in order to increase the probabilitythat at least one of them will implant. Because several embryos aretransferred, the technique is associated with an increasedprobability of multiple pregnancies. The complication of multiplepregnancies is never publicized by the clinics. In some cases, theembryo may be transferred into the Fallopian tubes. Gametic Inter-fallopian Transfer, widely used technique, involves mixing

gametes in vitro, but without directly confirming penetration of theova by sperm. The mixture is then transferred into the fallopian


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tubes. Intra-cytoplasmic Sperm Injection involves injectingcollected sperm directly into an ovum.

As per the guidelines observed by the fertility centers, the sourcingand storage of gametes, embryos and surrogate mothers has to berecorded.

Indian fertility clinics offer ART services at one-fourth of the price inthe West. However, the rise of fertility tourism in India has its shareof problems. Misuse of ARTs has lead to a decline in the sex ratio.A misuse on the part of the clinic would lead to the commoditizationof human body parts. Such commoditization has already beenobserved in renal transplants. A substantial number of such issuesare a consequence of the unregulated ART industry. Its the job ofthe state to look after the health and nutrition of its citizens andthereby address the rising infertility by providing adequate medicalservices. ARTs have been known to have relatively low successrates. Hyper-ovulation Syndrome, Multiple Pregnancies are justsome of the complications arising out of ARTs.

Clinics are free to offer treatments that in their professionaljudgment are able to help their patients. This approach has allowedphysicians to offer ARTs without prior review and oversight. Theuse of such technologies without oversight is a cause of greatconcern. As a result of IVF there are numerous spare eggs, andembryos. The ownership and fate of these embryos is one of themajor questions arising from the use of IVF. There are also manyeggs that have been taken from women being sterilized, and theyhave donated the eggs for scientific research. These eggs can thenbe fertilized to provide a large supply of human embryos forresearch. The eggs are being used for research but there is noactual safeguard to prevent misuse of such eggs and embryos.

The American Medical Association has drafted a code of medicalethics related to ARTs.6 The code titled Ethical Conduct inAssisted Reproductive Technology lays down the following

6Ethical Conduct in Assisted Reproductive Technology, TheAmerican MedicalAssociation, www.ama-assn.org


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guidelines to emphasize the value of existing standards to ensureethical practices in assisted reproductive technology (ART):

y The medical professions development of technical andethical guidelines for ART should continue. Education of theprofession and patients should be pursued through widelydisseminated information. Such material should includeinformation on clinic-specific success rates.

y Fertility laboratories not currently participating in a credibleprofessional accreditation program are encouraged to do so.Professional self-regulation is also encouraged throughsigned pledges to meet established ethical standards and tocomply with laboratory accreditation efforts. Physicians whobecome aware of unethical practices must report suchconduct to the appropriate body. Physicians also should bewilling to provide expert testimony when needed. Specialtysocieties should discuss the development of mechanisms fordisciplinary action, such as revocation of membership, formembers who fail to comply with ethical standards.

y Patients should be fully informed about all aspects of ARTapplicable to their particular clinical profile. A well-researched, validated informed consent instrument would beuseful for the benefit of patients and professionals. Paymentbased on clinical outcome is unacceptable.

y Physicians and clinicians practicing ART should useaccurate descriptors of available services, success rates,

and fee structure and payment obligations in promotionalmaterials.

Drafting a code as mentioned above should be the goal of thegovernment to regulate the Indian Commercial Surrogacy Industry.The ART (Regulation) Bill, 2010 is a giant step towards theaccomplishment of the goal.

4. Ethical Aspects of Surrogacy

Ethics, also known as moral philosophy, is a branch of philosophy

that addresses questions about morality that is, concepts such as


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good and evil, right and wrong, virtue and vice, justice and crime,

etc. (www.thefreedictionary.com)

We believe that ethics in surrogacy cannot be demarcated intoblack and white but since it stirs basic human emotions and

transcends mundane motives, there is nothing wrong in surrogacy

in principle. It is simply a way for the infertile couple to raise a child

of their bearings and thus should be permitted as well as facilitated

in the background of precaution and a transparent system. The

system should be devoid of misuse and utter chaos over the life of

a child which is the utmost concern without causing harm to the

parents. By parents we mean both the surrogate and the

commissioning couple. Its a brave step by all the parties involved

which demands respect in the eyes of society.

Surrogacy in the most objective sense is simply making use of the

biological gift of birth by a woman to help another in her failure to do

so. Intended parents or couples who want to raise kids with

biological connection with the child cannot be considered wrong or

morally incorrect on the grounds of possible exploitation. After all, if

we are considering moral high grounds then why not look at it this

way that a couple who want their own child to love and take care

and another woman who is willing to do carry that child for them is a

great way to start a family. In the entire process, the surrogate also

gets monetary and health benefits from the intended parents.Parenthood is a highly emotional, personal, legal, medical and

financial issue. Surrogacy remains the only option for couples who

have fertility problems and still want to raise a child to which they

are biologically related unlike other options such as adoption where

there is no connection whatsoever.

We asked parents, students, workers around and what their views

on surrogacy were. Surrounding a high emotional response, they

support altruistic surrogacy completely and consider commercial

surrogacy as unjust and morally wrong. This reflects a generalpublic opinion. It was not surprising to notice that altruistic


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surrogacy is viewed with an open heart. But a doubt arises that if

this is driven by a general idea to be good from a distant. Maybe

the response is driven by an instinctive human need to protect the

women who are vulnerable to exploitation. Our Society has a strong

view on this issue but completely ignores the fact that the same

woman probably has no money to feed her own children. So if she

involves herself in this agreement for monetary benefit, then how is

that wrong? On what moral ground do we get the liberty to deny a

woman the same? It is true that unregulated industry cannot boom

because the mother needs the monetary benefits for ignoring her

health factors and exposure to likely exploitation. We are of the

opinion that there is a desperate need for a paradigm shift in the

society we live in and accept this approach.

There is an obvious concern of the surrogate mother unwilling to

part with the child and our emotional response to it is an immediate

sadness for the mother while completely ignoring the that she is

aware of the fact that she is simply carrying the child in her womb

for 9 months and the child is going to be in safe hands after that. It

can be compared to an unmarried girl giving her child up for

adoption for the childs better future. This is not a dispassionate

view but a new approach to a highly misunderstood option. Public

opinion as the case in point has even dragged this to being

comparable to prostitution as selling the womb is comparable to

selling bodies. We maintain that this statement and the underlying

opinion are completely unfair and absurd.

India as a nation is a very sensitive one. Public opinion, media

outcry and our culture play a major role in how we operate. In fact

we are one of the few remaining nations who still use its customs

as a source of law. An effort to pass the proposed ART (Regulation)

Bill, 2010 is a major step of progress in a country such as ours.

Although surrogacy is not a new solution to an old problem and is

very much present, it still hasnt received a very warm response

and is operated in a legal vacuum. The bill is a strong and bravestep as surrogacy is already being followed but needs to be


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regulated properly especially in situations where theres a possibility

of people such as family member and medical professionals using

surrogate mothers to profit. Then again, surrogacy contract if

executed properly will put the surrogate mother in a better

economic position to decide for her. A transparent contract between

the two parties, harmless to anyone and a strong structure to

support it, will clear out any further complications. A positive

initiative and approach to surrogacy will make sure that the ultimate

objective of creating lives will not be shrouded in legal and moral

hassles.

Critics and sceptics of surrogacy have reasonable concerns that

there is a huge scope of degradation and devaluation of women

surrounding surrogacy. Surrogacy has been labelled in this light forreasons we cannot ignore. Such as, the rights of the surrogate

mother are minimal and the situation immediately raises questions

if the womans womb is misused or abused in any way. In any

circumstance, the surrogate mother can be asked to terminate the

pregnancy. What if she aborts a child disabled since birth? The

possibility of failure of such a system is inevitable but due care and

proper regulation can benefit a great number of couples around the

world and a strong family unit where the child as well as the parent

do not feel alienated or unrelated due to the missing biological

connection. The rights of the surrogate mother is an important and

a serious issue to be considered because a lack of same would turn

this into an unethical and pure abuse of women and the age old

notion of using a womans body as a child producing machine

would come true. To defy that is the purpose of a new open

approach where surrogacy can be viewed in a different perspective.

The accepted belief is that the medical professionals and the rest

will look at it as a profitable sector and thus exploit the economically

needy, as the surrogates in almost all the cases are of lower

economic strata. Thus theres a need of legal counsel and help for

the surrogate mother so that it can be ensured that she

understands her rights of claiming the money and privacy issues.


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What generally ignored are the rights of the parents. Can they

inform the child of the surrogacy for his interest and is it ethically

correct to do so? We believe that it is a matter of personal choice

and discretion of parents, as is the entire subject of surrogacy.

This is where a contract comes into play and provides a relief to the

surrogate mother as well as the intended parents from any mishap

or dispute. A disciplined medical contract within an ethical

framework is needed. If followed, the scope of misuse can be

largely reduced. The gap between pregnancy and maximum

number of pregnancy will be dealt with in regulating the

arrangement; also the mother will clear the criteria to be a healthy

mother. It would not only cover the insurance and medical factors

but other legal issues such as citizenship and privacy rights. Ifeverything is transparent and looked upon by professionals, doctors

and counsellors there will be no need of such scepticism. Ethical

issues which are only supported by grand assumptions of

exploitations will be passed off as a regulatory precaution.

5. Surrogacy and its Economic Implications

Medical Tourism is a growing sector in India. It is expected to

experience an annual growth rate of 30% and become a 950

million INR7 industry by 2015. With decades of experience in

providing excellent medical services, India has started to attractmore people from around the world and is gradually expanding into

a global medical hub. An estimated 150,000 people from the

Western countries travel to India for healthcare procedures every

year, primarily due to the combination of factors that have

developed steadily over the past few years, which include low cost,

less waiting time, world class quality, personalized services and rich

cultural heritage. Commercial surrogacy has a big share in the rise

of medical tourism in India. Commercial surrogacy has been

decriminalized in India since 2002, as it is in many other countries,

7 The Economic Times, December 2009


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including the United States and Israel. But India is the leader in

making it a viable industry rather than a rare fertility treatment.

Due to the increase in the cost for medical treatment in the westernworld, it has become inevitable for people to travel away fromhome, in order to get the same at a lesser price. India has alreadybecome a popular destination for people to travel and get anequivalent quality medical treatment, at significant lower costs. Forinstance, a commercial surrogacy arrangement in the US that costsUS$ 200,000 can be as efficiently conducted in India, at asignificantly fractional cost ofUS$ 20,000 30,000. A recent studyreports that around 350 fertility clinics are working all over thecountry.(Value Added Travel by Dr. Arati Verma, Dr. Shalini Bhalla,Medical Tourism Magazine, Issue 2)

Commercial selling of eggs can fetch a woman US $4000, andbecoming a surrogate mother can bring another US $20,000. Mostwomen argue that they are doing it because of their desire to helpothers, because they have witnessed the pain of infertility and wantto do something to help. Most of them dont mention the money.Nevertheless, $20,000 is a large sum of money and applicationsfrom women to become surrogate mothers has increased over theyears. Regardless of the health of the economy or the ever loomingfear of recession, the women will still want to become mothers, sothere will always be demand for egg donors and surrogate mothers.So that might eventually lead to the phenomenon of outsourcing.Outsourcing of wombs seems like a farfetched idea but thegoverning economics make it a possibility. There is already anactive international trade in baby production, eggs, sperms, donorsand wombs. There are rapidly advancing technologies that arecertain to expand both the demand for surrogacy services and thesupply of surrogate mothers. Yet the underpinnings of thesurrogacy market rules, laws, rights and contracts are evolvingslowly. The demand function in the market is becoming so intensethat commissioning parents are entering into surrogatearrangements without affirming the legality and the consequencesof surrogacy. Commercial surrogacy at the fundamental level is an

issue of ethics and economy. It involves an economic relationshipthat sits within a deep ethical calculus, one that goes into the very


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heart of morality. Advocates of surrogacy might define it as a win-win situation. The doctors get clients, the childless couples get achild and the surrogate mother gets much needed money.

However, the horror of exploitation is ever present. The mostshocking stories, concern the surrogate mothers. The surrogatesare often in dire financial straits. One woman told a journalist thatwith a $4,000 debt and an alcoholic husband, she had firstconsidered selling a kidney to get her out of debt, but then decidedthat the $ 7,000 surrogacy fee was the better option.8(CommercialSurrogacy and India, Dr. P Naidu)

The usual, Empowerment v. Exploitation, debate eludes somethingmuch more fundamental that the surrogate industry reflects aboutIndia. India has jumped several stages of development and zoomedstraight into a service economy. Indians stock call centres and tech

help lines where Westerners can get their questions answeredefficiently. In these centres, Indian youths temporarily adopt newpersonal identities by using Western names and accents. Another,milder way in which Indians act as "surrogates," or substitutes forWesterners. The country is romanced by the idea of selling humancapital as its next great commodity. Therefore surrogacy resonatesnot as an old problem of exploiting the poor but as an inevitablepart of the "New India" where the locals provide much neededservices for the new global economy. This kind of forward-thinkingeconomic liberation dovetails with an ideology of personal freedom."I think women should be free to choose what they do with theirbodies," says Dr. Aniruddha Malpani, a fertility specialist inMumbai. "We shouldn't treat them as stupid just because they arepoor."

6. Conclusion

Where a blood relation sobs, an intimate friend should choke up, adistant acquaintance should sigh, a stranger should merely fumblesympathetically with his handkerchief- Mark Twain

8 Dr. P Naidu, Commercial Surrogacy and India


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This quotation depicts the importance of blood relations and thevery essence of the entire subject of surrogacy. Why we humanbeings entwine ourselves into the web of medical, legal, social,

economical and moral complexities attached to surrogacy isbecause these relations affect our entire existence. We might denyit but we cannot ignore the fact we will always love our own childway more than our neighbours. The fight to make surrogacy anaccepted approach towards reproduction is propelled by the humanneed to maintain the connectivity to its children. Hence, surrogacyon a very personal level represents the human stubbornness tohave a genetically identical offspring.

Surrogacy as a dynamic field of reproduction is undergoing througha lot of innovation and reform. The advocates of surrogacy areterming it as the only solace for infertile couples who wish to have a

genetically similar child. Surrogacy is being viewed as a harmlesscontract between two parties for the purpose of creating a new life.The moral issues and the social stigma attached to it are slowlyfading away and surrogacy is becoming a mainstream medicalprocedure. The Indian surrogacy industry is becoming a majorcontributor to the medical tourism industry in India. After studyingthe pros and cons of surrogacy arrangement, we are of the opinionthat altruism and commercialization can go hand in hand. A womanwho spends nine months of her life carrying someone elses babydeserves to be compensated adequately for undergoing throughthe evasive medical procedures and pain of it all. The ultimateresult achieved, that is, giving birth to a child, is still a very beautifulexperience for the surrogate mother and the intended parents.

Critics have always maintained that surrogacy has its share ofproblems which include unregulated mushrooming of fertility clinicsand the scope of exploitation of women. But we argue thatsurrogacy should not be considered as a taboo just because it hasscope for exploitation and upsets the morality of certain individuals.Surrogacy is human altruism at its best. The proposed AssistedReproductive Technologies (Regulation) Bill, 2010 and theincreasing influence of bodies such the Indian Council of medicalResearch (ICMR) is a step towards curbing the horrors associated

to surrogacy.


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We recommend that commercial surrogacy in India should beembraced by the government and accept responsibility to bring outawareness and counselling for the surrogates. Under the purview of

such control the scope of misuse is reduced. Various bodies andNGOs need to play a more involved part in facilitating andimproving the face of surrogacy. We would like to conclude bysaying that every new idea has to be nurtured and enough spaceneeds to be provided for it to grow into a mature system.

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