Culture · Healthcare · Public Policy · Society

Brother from Another Mother : A Socio-Ethico-Legal Perspective of Surrogacy in the Indian context

“The labour of bearing a child is more intimately bound up with a woman’s identity than other types of labour. Contract pregnancy involves an alienation of aspects of the self so extreme as to make it an illegitimate practice. The work of pregnancy is long-term, complex and involves an emotional and physical bonding between mother and foetus.”

– Margaret Jane Radin and Carole Pateman

According to the Warnock Report, surrogacy is “a practice in which a woman carries a pregnancy for intended or commissioning parents, bound by an agreement to hand the child after delivery to them.”[1] Generally the broad area of surrogacy is classified into two: i) Traditional surrogacy, where the surrogate contributes her own egg to the pregnancy, which is artificially inseminated with the donor’s sperm, and ii) Gestational surrogacy, where a fertilized egg is implanted in the womb of the surrogate.

Surrogacy is by no means a modern phenomenon, and instances dating back to the biblical period have been noted by historians.[2] However, recent trends in the case of infertile or same-sex couples towards this particular process have been a result of modern medical and technological interventions such as developments in birth control, the increasingly popular and legally recognized concept of voluntary abortion and sex education in schools, which have reduced the number of unwanted babies up for adoption.[3] This being the scenario in the west, couples- or even single individuals- who are unable to adopt for one of the reasons mentioned above, or due to any other legislation which renders them ineligible to do so, are turning increasingly towards lesser developed countries, such as India, where the extreme financial hardships faced surrogate mothers coupled with lack of legal regulation have turned them into booming ‘baby-production industries.’

However, in the wake of surrogacy have arisen certain inherent dilemmas and complications. When the country with the highest number of instances of maternal mortality[4]– deaths caused due to complications arising out of pregnancy or childbirth- in the world, also holds the top rank for the highest number of surrogate mothers, there are certain unavoidable questions that present themselves in front of it. If 50,000 mothers and mothers-to-be die in a year in India,[5] then is its on-going trajectory towards becoming the world’s “surrogacy capital” the correct one to pursue and promote? Other pertinent questions, the answers to which are not readily available and require a possible re-assessment of one’s fundamental social and ethical philosophies are:

  1. Does surrogacy amount to commercialization of the processes of pregnancy and childbirth?
  2. Who, essentially, is a parent?
  3. What should be the nature of the enforceability of surrogacy agreements? Should they be void, valid or illegal?
  4. Should it matter as to whether a surrogacy is paid for by the commissioning parents, or done simply out of goodwill by the surrogate mother when considering the legality of the process?

One of the primary reasons for the vulnerability of surrogate mothers in India as well as children born out of such arrangements is, much like in the instance of a profusion of other issues pertaining to Family Law, the absence of legal regulation on the matter. If the burgeoning fields of medical science and information technology are reinventing ‘motherhood’, then legislation appropriate for the contemporary scenario that is up-to-date in understanding and regulating the process of surrogacy becomes a sine quo non. The lack of it is capable of causing irreparable damage to the structure and internal relationships of families, the most fundamental unit, and the cornerstone of any human society.

Whether one concurs with the concept of surrogacy or denies it, it has become an inescapable question with the rising trend of the process in India having ushered commercial transactions inside the womb. In the delicate balance of a family, this has given way to various conflicts of interests. The absence of legislation on the matter this could lead to tragic instances of exploitation of the poverty-stricken surrogate mother in the hands of the wealthier commissioning parents hailing from developed nations. Thus, non-intervention by the State is not a viable option. A legislation is essential if surrogacy is to be allowed, and it must be sensitive to the needs of all the parties involved in the process.

But should surrogacy be illegalized? Scholars like Amrita Pande have noted that surrogate mothers face heightened risks during pregnancy and childbirth as compared to natural mothers, because of the numerous medical treatments they must undergo.[6] Matching her menstrual cycle to that of the egg donor becomes crucial for her womb to accept the implanted fertilized egg, and for this purpose she is treated with large doses of hormones, which have adverse long-term effects. Arguments such as this make it difficult to advocate surrogacy as a method of assisted reproduction.

On the other hand, empirical studies conducted in the west reveal that surrogate mothers are not necessarily poverty-stricken, helpless individuals, driven to take such a risky step out of financial desperation.[7] However, these studies are limited to the United States, United Kingdom and Canada, and there are no reliable surveys of similar nature conducted in the lesser developing countries of the east, such as India, to point to similar trends, which is anyway highly unlikely to occur.

Some authors, such as Professor Roberts, are reluctant to concede to the advantages of even altruistic surrogacy, questioning whether we can “justify devoting such exorbitant sums to a risky, non-therapeutic procedure with an 80 percent failure rate when so many basic health-needs go unmet.”[8]

According to the researcher, the status quo is a dangerous situation. Surrogacy needs to be either criminalized or regulated with immediate effect. Commercial surrogacy leaves many loopholes through which weaker sections may be exploited. Thus, in the opinion of the researcher, only altruistic surrogacy, that is, surrogacy without receiving any payment should be legalized in India, to prevent a situation which leads to commercialization of a woman’s body. However, this too should be regulated and closely monitored so as to prevent abuse and misuse of the law.

Additionally, psychological counselling for the surrogate mother needs to be made a legal requirement under future legislation. This is extremely crucial, for the processes of pregnancy as well as childbirth are emotionally turbulent, and especially when they occur under unnatural and commercial circumstances such as surrogacy, the surrogate mother needs psychological support of every kind.

 By: Anasuya Goswami

 

[1] Department of Health & Social Security, ‘Report of the Committee of Inquiry into Human Fertilisation and Embryology’, Para 8. 1 (1984).

[2] Mrinal Vijay, Commercial Surrogacy Arrangements: The Unresolved Dilemmas, 3, UCLJLJ, 200, 200 (2014).

[3] Ibid.

[4] Tabassum Barnagarwala, India has Highest Number of Maternal Deaths, The Indian Express, May 7, 2014.

[5] Ibid.

[6] Amrita Pande, Not an ‘Angel,’ not a ‘Whore’: Surrogates as ‘Dirty’ Workers in India, 16 INDIA J. GEND. STUD. 141, 147 (2009).

[7] Karen Busby & Delaney Vun, Revisiting The Handmaid’s Tale: Feminist Theory Meets Empirical Research on Surrogate Mothers, 26 CAN. J. FAM. L. 13, 44 (2009)

[8] Barbara Stark, Transnational Surrogacy and International Human Rights Law, 18 ILSA J. Int’l & Comp. L. 369 (2011-2012)

 

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