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Abstract:

This research paper is centered on the topic of commercialization of motherhood which in common language is known as Surrogacy and the laws relating to it in India and in other countries. Initially the paper introduces the topic briefly and explains the meaning with the help of various definitions. Further it discusses about the various types of surrogacies and includes a brief introduction about the three. The paper discusses about the ART Bill that defines surrogacy per se and then focuses upon how a surrogate mother is compensated. It mentions about the countries where this process is legal and where it is illegal. It talks about the various countries’ laws and regulations about the process of surrogacy. The paper then mentions the laws about surrogacy in India and how has it changed overtime and also how India had become one of the major destinations for surrogacy which appears to be a viable option. It also mentions about the challenges that the surrogates face in the society about their character and the work that they intend to do and in the end provides with some suggestions and opinion about the same.

The capacity of creating a life has been bestowed upon a woman by nature and is the most cherished feeling that a woman ever experiences. The right to reproduction is an innate right of an individual.[1]The feeling of becoming parents and parenthood is one of the feelings that every person wishes to have in his or her life but the pain of not experiencing or fulfilling this parenthood is immeasurable. But due to various reasons a large section of the society is unable to have its own child. This inability of not having a child is called infertility and is a global problem in the present world. Sometime back the only option for parents was adoption. But with the increasing advancement in science and especially in Artificial Medical Reproduction (ART) has provided people to produce a genetically related child[2]. There are various techniques or processes in ART like insemination, embryo transfer etc. among which surrogacy became the most popular one.

The commercialization of motherhood also termed as “surrogacy” is one of the alternatives or the medical solutions being available for childlessness in the present world. Surrogacy is a fertility treatment in which a woman carries and delivers a pregnancy for another couple.[3] This process of surrogacy is of two types namely the traditional surrogacy or gestational surrogacy. In the traditional surrogacy the woman may provide with the eggs and in gestational surrogacy the woman may carry the baby that is conceived with other woman’s eggs. Surrogacy in the present world has become a popular as well as a controversial issue relating to the childless couples. The woman who performs surrogacy for a particular couple waives all her rights over the born baby and agrees to give the baby to the parents upon delivery. The word surrogate or surrogacy has been derived from the latin word “surrogatus” meaning a substitute. This process of surrogacy or surrogate motherhood is often called upon as an agreement between a couple whose wife is infertile and a fertile woman who agrees to conceive the baby through artificial insemination[4]. Surrogacy these days is gaining popularity all over the world especially in the western countries where adoption requires a long and bureaucratic process. Surrogacy allows parents to not only take control of their own reproductive options, but also to create families that share genetic bonds[5]. Children born through surrogacy are the ones who are natural, genetic offspring of their own parents. This is a significant benefit over other reproductive options and that makes surrogacy a more reliable option. The first successful gestational surrogacy procedure took place in 1985 and it has been growing since then.[6] Moreover it becomes much more prevalent when these practices are adopted by celebrities, when they announce their surrogacy families. This process is now a days being incorporated much by the same sex couples who are actively pursuing family planning. The ART bill defines surrogacy as “an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gamets belong to her or to her husband, with the intention to carry it to the term and hand over the child to the person or persons for whom she is acting as a surrogate”[7]. Surrogacy is basically of three types that is:

  1. Genetic or Partial Surrogacy
  2. Total Surrogacy
  3. Gustatory or Gestational surrogacy

In Genetic or partial surrogacy the woman’s egg is fertilized by the sperm of the male partner either by artificial insemination or by natural intercourse and the surrogate mother is the genetic mother of the child.  In Traditional surrogacy the egg of the surrogate is fertilized with the sperm of the genetic father and that this type of surrogacy does provide a genetic link which is not possible if the egg is donated. This type of surrogacy is much more favorable to the same sex couples or the single father or a heterosexual couple[8]. In Gustatory or Gestational surrogacy the egg and the semen from the actual or genetic parents are transferred to the surrogate mother and the surrogate mother has no genetic link to the child. This type of surrogacy has now come to be known as Full Surrogacy. Now when a woman becomes a surrogate mother she charges some amount for the same or even can be termed as the financial compensation for her. This financial or final compensation is to be given to the surrogate mother once the she delivers the baby to the couple who requested the concerned person to perform surrogacy for her. While in terms of reimbursing the woman it happens in two major ways i.e either by Commercial Surrogacy, where the woman or the surrogate mother is paid for her work and the other way is the Altruistic Surrogacy, where the woman or the surrogate mother volunteers for the service and is only reimbursed for the expenses.[9]

The question that has and is raised most of the times is that is surrogacy legal or illegal? Which country allows it and which does not? This question of legality about surrogacy is answered by the various laws and legal systems of various countries. Surrogacy laws vary from country to country. There are very less nations that provide for such an activity to take place. While the United States of America is a surrogacy-friendly country, many nations around the world are not.Some of these nations either heavily restrict or completely outlaw the practice of surrogacy.[10]Like in most European countries this process of motherhood or surrogacy is heavily restricted or illegal and in other countries like United Kingdom only commercial surrogacy is illegal while Altruistic Surrogacy is permitted. This process or activity being legal and illegal depends on how the national government of that country makes laws and regulates it. The legality of surrogacy and the country having federal laws not to avoid it does not mean that it’s the best option for the country. The lack of work and regulations might open the possibility of ethically questionable procedures[11]. While most of the countries that do allow surrogacy there are many loopholes in the laws that govern it. The only country that has solidly defined laws that protect both the intended parents and the surrogate mother from the potential legal challenges is the United States of America, where the practice is legal, well-regulated and ethical. In New York, however the surrogacy is void according to the 1992 law but plans to change after the Child-Parent Security Act of 2017, making it enforceable and compensating the surrogates.[12]While in the United Kingdom the Human Fertilization and Embryology Authority (HFEA) Code of Practice plays a huge role in the laws and regulation surrounding all matters of assisted reproductive technology or surrogacy.[13] Surrogacy is legal in United Kingdom but only partially i.e. only Altruistic Surrogacy is permitted in which the financial compensation is not given to the surrogate mother, though the commissioning parent may provide fees and costs to the surrogate mother in bringing an embryo to the term.[14] When surrogacy around the world is talked upon it is divided in three trends. First, the Western European countries that prohibit surrogacy is because of the moral and religious beliefs of the people. These people engage in surrogacy outside their home land as the country does not recognize any laws regarding that. Second, other countries like Thailand, India, Mexico and Nepal that has moved to a more restrictive approach due to lack of strong laws and regulations. Third, countries that have moved to a more permissive approach towards surrogacy with some good followed jurisdictions and includes countries like the United States of America.[15] Countries like USA show us that it is possible for countries to make laws and regulations for the practice of surrogacy and can be successful in its operation. Surrogacy in India is only permitted up to a partial extent that is it only allows commercial surrogacy and was legalized in the year 2002.

Surrogacy in India has its roots from a very long time. Hindu Mythology shows instances of surrogacy and reflects its practice. Surrogacy in India is commercial in nature, which is hard to imagine a baby as a means of commerce. A baby is a product of love and affection by the mother and seeing it as the way of earning money or commerce in itself is an erroneous way. Surrogacy has turned a woman’s biological process to give birth to a baby is now becoming the way of earning money and the process of surrogacy or the “wombs on rent”[16] is now mostly prevalent among the poor classes as they tend to earn money with this. This business of surrogacy has been defined as the baby boom in the India’s economy. After the practice was legalized in 2002 India became the most viable option for foreign parents as it was cheap and affordable as compared to other countries. It’s a viable option as the surrogate mothers are readily available in India and the total cost of this process turns out to be very less. However this practice is sometimes exploited by the agencies who recruit the surrogates and when people make their final payment a large amount is kept with the agencies and a less amount is given to the surrogate mothers. One of the instances as reported by the leading newspaper mentioned that the process cost was around 5 Lakhs but only 75 Thousand was given to the surrogate mother and the rest was kept with the agency[17]. This shows how the surrogates who commercialize their wombs and take so much on their health are not even compensated properly and the main reason why females tend to do more of this process in India is because of the bad financial conditions of the family. This third person who acts as the agency between the intended parents and the surrogate mother take the undue advantage which turns this process as an unethical one.[18]As far as the legality of the concept of surrogacy is concerned it would be worthwhile to mention that Article 16.1 of the Universal Declaration of Human Rights 1948 says, inter alia, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family”. The Judiciary in India too has recognized the reproductive right of humans as a basic right.[19]

Motherhood is portrayed as central to the social construction of womanhood. Thus, childlessness becomes a social problem or a social crisis in patriarchal societies. This has an impact on the growing demand for ARTs and medical treatment for infertility and causes the increasing demand for surrogacy and surrogates.[20] India Surrogacy has been a viable option majorly for the international intended parents who come to India because of the cheap rates of this practice. But, like most international surrogacies today, India has recently gone through major legislative reform to bring regulation to the surrogacy process and now is not likely the option to go with.[21] The expansion of surrogacy practices and commercialization of this practice became popular in the late 1990’s and early 2000’s.[22] To reduce the exploitation of women in this field many regulations were made. The very first regulation that was made after when surrogacy was legalized in 2002 was the bill that was drafted in 2008 by the Indian Council of Medical Research for the Assisted Reproductive Technology and was sent to the Ministry of Health and Family Welfare.[23]. The Supreme Court in 2008 thereafter called surrogacy a medical practice. The main debate of the surrogacy was started off by the Baby Manji Yamada case in which the commissioning parents divorced during the pregnancy and the commissioning mother refused to accept the baby. The court finally granted custody to the baby’s grandmother.[24] After this On 5th of August, 2009 the Law Commission of India submitted the 228th Law Commission Report titled “Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy” where the report expressed the view of the Commission on the Indian Counsel for Medical Research Guidelines 2005 on Surrogacy, the draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008 and the Seminar on “Surrogacy – Bane or Boon”[25]. The report had also made recommendations that called for the focus to be kept while legislating on surrogacy and its related subjects. In respect with the commission’s report many recommendations were made that included to address the question of intended parents, compensation given to the surrogate mother, the rights of the parents and many such issues that had to be dealt and were pondered upon. After all this a large number of foreign intended parents started coming to India for surrogacy but this got changed after the introduction of the Surrogacy (Regulation) Bill 2016 that was passed in the LokSabha which allows only altruistic surrogacy by infertile Indian couples, legally married for at least five years.[26] This bill put a complete ban on the commercial surrogacy and also bans unmarried people, live-in couples and homosexuals from opting for altruistic surrogacy. Now, foreigners, even Overseas Indians, cannot commission surrogacy. It also mentioned that the surrogate child would have the same rights as that of the biological child of the intended parents[27] and addressed various issues pertaining to surrogacy. After two years the surrogacy law was passes and mentioned the key highlights as:

  • Made commercial surrogacy illegal
  • Only allows altruistic surrogacy for needy, infertile Indian couples
  • Requires intended parents to be married for five years and have a doctor’s certificate of their infertility
  • Restricts women to being surrogates only once, and only if they are a close relative of the intended parents, are married and have a biological child
  • Bans single parents, homosexuals and live-in couples from surrogacy[28]

The main reason that the process of surrogacy was banned was because of the increasing number of the foreign people coming over and availing it for a very less amount and the exploitation of the surrogate mothers. Moreover the women who decided to be the surrogate mothers were often treated and subjected to unethical treatment, poor living conditions and exploitation. Furthermore to meet the demands of the foreign parents there emerged a large number of third parties like the agencies who were running what was called as the “baby factories”.

At a glance, surrogacy seems like an attractive alternative as a poor surrogate mother gets very much needed money, an infertile couple gets their long-desired biologically related baby and the country earns foreign currency, but the real picture reveals the bitter truth.[29] The problem of the surrogate mothers turns out things to be unethical in the eyes of the society. It puts a question on the dignity of woman, which is cherished by all the human beings and should be given to every human. As a mother-child relationship is one of the most pure bonds surrogate mothers use this for earning money and thus degrades their image and character. It is argued that surrogacy degrades the inherent dignity of a woman.[30] Many others say that surrogacy is a form of prostitution whereby a woman sells the reproductive ability and in turn gets the payment for it. Women in India due to their poor economic backgrounds found this source or process a way of earning money and helping their family butt at the same time gets questioned by the people about the character for doing this.

However even after the laws being made there is still lack of regulations all over the world will still contribute to the exploitation of women, trafficking and coercion. There is a need to adopt a specific legislation for the regulation of surrogacy and protection of surrogate mothers in India. There is a need to protect the interest of the baby child born out of surrogacy from exploitation.[31] Like any other technology, surrogacy too has its positive and negative effects. If it is used wisely it would bring happiness to millions of childless couples. But if it is used in a careless way and as a means of commerce, it would have an adverse impact on the society. The suggestions that are made in this regard are that there should be a legislation that involves all the three parties and directly applies to them. A clearly defined law needs to be drafted immediately which will pronounce in detail the Indian government’s stand on surrogacy; so that discrete activity leading to exploitation of the surrogate mother can be stopped.[32]Laws should be framed and implemented to cover the grey areas and to protect the rights of women and children who sometimes face the problem of nationality[33].Domestic laws should not be changed to permit commercial surrogacy in those jurisdictions that currently prohibit the practice solely based upon dilemmas created by people who have engaged in global surrogacy arrangements. Such cases should be dealt with by the courts, on a case-by-case basis; or the legislature should speak as to what should occur.[34] Furthermore it is now the time that we as country and the Indian Parliament must look over the views and international perspectives on surrogacy in general and the position prevailed in India in particular to understand it the best and to provide a good deal of rules and regulations to our own country after carefully considering societal feelings and acceptance to this practice of surrogacy.

While making the laws and regulations for the surrogates there should bepositive reproductive rights that must be employed securing the social, material and potential tools by which all women will truly be able to make reproductive decisions free from coercion and would be seen with the dignity that all humans are enjoying in the present world. Taking penal actions should be there for exploitation of the surrogate and misuse of surrogacy.[35] This can surely make India a better place for surrogacy and a safe place for surrogates and that the

“poor” women should not be exploited in the name of noble work.

[1]SS Das &PriyankaMaut, Commercialization of Surrogacy in India: A Critical Analysis, JCC Law Review, January 2014

[2]Pikee, Archana et al. “Surrogacy: ethical and legal issues.”, Indian Association of Preventive & Social Medicine vol. 37,4 (2012): 211-3, IJCM, (2012)

[3]What is Surrogacy, Sensible Surrogacy, (Jun. 8, 2019, 3:30PM), https://www.sensiblesurrogacy.com/what-is-surrogacy/

[4] Ibid

[5]What is Surrogacy, Sensible Surrogacy, (Jun. 8, 2019, 5:45PM), https://www.sensiblesurrogacy.com/what-is-surrogacy/

[6] Ibid.

[7]SS Das &PriyankaMaut, Commercialization of Surrogacy in India: A Critical Analysis,JCC Law Review, January 2014

[8]About Surrogacy, Surrogate.com, (Jun. 8, 2019, 8:00PM), https://surrogate.com/about-surrogacy/types-of-surrogacy/types-of-surrogacy/

[9]GouriGoyal, Surrogacy In India: An Overview, PolicyCorner Blog, January 2018

[10]International Surrogacy Laws By Country, Surrogate.com, (Jun.9, 2019, 10:15AM),https://surrogate.com/intended-parents/surrogacy-laws-and-legal-information/what-are-the-international-surrogacy-laws-by-country/

[11] Ibid

[12]Cornell Law School & National Law University Delhi, Should CompensatedSurrogacy Be Permitted or Prohibited?, Cornell Law Faculty Publications1551, (2017)

[13]HEFA Code Of Practice Updated Regarding Surrogacy in UK, Sensible surrogacy, (Jun.9, 2019, 04:45PM) https://www.sensiblesurrogacy.com/hfea-code-of-practice-updated-regarding-surrogacy-in-the-uk/

[14]SS Das &PriyankaMaut, Commercialization of Surrogacy in India: A Critical Analysis,JCC Law Review, January 2014

[15]Cornell Law School & National Law University Delhi, Should Compensated Surrogacy Be Permitted or Prohibited?, Cornell Law Faculty Publications 1551, (2017)

[16]SS Das &PriyankaMaut, Commercialization of Surrogacy in India: A Critical Analysis,JCC Law Review, January 2014

[17]BinduShajan, A Setback For Surrogacy in India, The Hindu, November 29, 2015

[18]GouriGoyal, Surrogacy In India: An Overview, Policy Corner Blog, January 2018

[19]GR Hari, Indian Surrogacy Law Centre Review of 228th Law Commission Report on Surrogacy, ISLC web blog, September 23, 2009

[20]PM Arathi, Report Of Study To Understand the Legal Rights and Challenges of Surrogates from Mumbai and Delhi, nhrc.nic

[21]Intended Parents, Surrogate.com, (Jun.10, 8:30PM), https://surrogate.com/intended-parents/international-surrogacy/surrogacy-in-india/

[22]PM Arathi, Report Of Study To Understand the Legal Rights and Challenges of Surrogates from Mumbai and Delhi, nhrc.nic

[23]GouriGoyal, Surrogacy In India: An Overview, Policy Corner Blog, January 2018

[24]BinduShajan, A Setback For Surrogacy in India, The Hindu, November 29, 2015

[25]GR Hari, Indian Surrogacy Law Centre Review of 228th Law Commission Report on Surrogacy, ISLC web blog, September 23, 2009

[26]What is Surrogacy (Regulation) Bill 2016, Indian Express, December 19, 2018

[27]Surrogacy (Regulation) Bill 2016: 12 Facts About the Bill Banning Commercial Surrogacy, India Today, August 26, 2016

[28]Intended Parents, Surrogate.com, (Jun.10, 8:30PM), https://surrogate.com/intended-parents/international-surrogacy/surrogacy-in-india/

[29]Pikee, Archana  et al. “Surrogacy: ethical and legal issues.”, Indian Association of Preventive & Social Medicine vol. 37,4 (2012): 211-3, IJCM, (2012)

[30]SS Das &PriyankaMaut, Commercialization of Surrogacy in India: A Critical Analysis,JCC Law Review, January 2014

[31]SS Das &PriyankaMaut, Commercialization of Surrogacy in India: A Critical Analysis,JCC Law Review, January 2014

[32]Conclusions and Suggestions on Surrogacy, Shodhganga.in, Jun.11 09:45AM

[33]Pikee, Archana  et al. “Surrogacy: ethical and legal issues.”, Indian Association of Preventive & Social Medicine vol. 37,4 (2012): 211-3, IJCM, (2012)

[34]SS Das &PriyankaMaut, Commercialization of Surrogacy in India: A Critical Analysis,JCC Law Review, January 2014

[35]GouriGoyal, Surrogacy In India: An Overview, PolicyCorner Blog, January 2018

Cite as: Anuveeta Datta Chowdhury, Critical Analysis of Credit Card Frauds in India, 1 Int’l J. of Legal Sci. and Inno. 2 (2019)

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