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The Plight of Surrogacy – Comprehensively analyzing Outsourced Pregnancy in India and around the Globe


Surrogacy
Image Credits – Alex Dos Diaz

Indian marriages are known all over the world for their grandeur, pomp and show, vivid colours, food, and myriad traditions. Marriage is seen as a sacred bond that ties a man and a woman together for life and gives them the legal right for sexual intercourse and procreation of children. This is where the catch lies – despite the fact that we’re in the 21st century, many people in India believe that the sole purpose of marriage is procreation, which in turn leads to problems for married couples, especially women. There may be several reasons for this, with the most common ones being that either the man or the woman is infertile, having the baby is dangerous for the mother’s health, the mother doesn’t want to go through pregnancy, or the simple fact that the couple wants to be child-free. Now, this is where surrogacy aka outsourcing pregnancy comes into play.

India is one of the few countries where commercial surrogacy was legal, but there has been a change ever since the Surrogacy (Regulation) Act, 2021 was passed on December 25, 2021. Even before the enactment of the new surrogacy act in 2021, surrogacy as a practice was more prevalent among the rich people of the country, with the poor people having to resort to surrogacy as their profession since they had no better alternative, which in turn led to their exploitation. This article will proceed to discuss surrogacy and analyze the present law, ethics, and the prevailing global scenario regarding the same.

Conceptualizing Surrogacy

Surrogacy put in simple terms is a contractually binding legal agreement in which a woman consents to bear and carry the child for the benefit of another couple/individual, who gets to be the parents of the child. It is a complex process involving several legal and medical steps which need to be taken with extreme care in order to avoid complications in the future. This is necessary because surrogacy in simple terms is the birth mother giving away the child to the intended parents and letting them have the child’s custody and guardianship.

Generally, there are two stakeholders involved in this process – surrogate and intended parents. A surrogate is a woman who agrees to carry and give birth to the baby and the parents of a baby born through a surrogacy arrangement are known as intended or commissioning parents. If the intended parents already have a child, then he/she can be considered the third stakeholder in this agreement.  

As stated before, there may be several reasons for couples wanting to have a child through surrogacy.

  • Couple cannot conceive traditionally – The man/woman may be infertile.
  • Pre-existing medical complications of mother – giving birth might be fatal to the mother, and existing kidney/heart diseases may lead to future complications for the baby. Women can also suffer from complicated uterine problems, such as scarring, fibroids, or Asherman’s syndrome which can make it difficult for them to sustain a pregnancy through the full term.
  • Logical option – With same-sex relationships being decriminalized, there has been a rise in the number of same-sex couples on a global level. Since such couples, especially men, can’t conceive naturally, surrogacy is a viable option.
  • Problems with previous pregnancy – Women who have undergone complications in their last pregnancy and those who still aren’t recovered from the trauma and harsh complications can choose to have another kid through surrogacy.
  • Lack of uterus – Some women are born without a uterus or have had it removed for various reasons like cancer, stone, blood clotting, etc. They either adopt or choose surrogacy to have kids.
  • Other reasons – Apart from LGBTQ+ couples, there are other categories of people who cannot bear a child through natural means. Single people and people for whom age is a barrier are an example.

With that being said, we should know about the types of surrogacy before delving into its ethics. There are three types of surrogacy in total.

  • Altruistic (non-commercial surrogacy) – This is when the birth mother agrees to be a surrogate absolutely free of cost. Some countries allow this but order the intended parents to pay reasonable reimbursements for the medical expenses of the surrogate. Altruistic surrogacy is legal in Australia.
  • Commercial – In this, the woman agrees to be a surrogate in exchange for money or other material benefits. This is banned in India and Australia.
  • Traditional – The surrogate mother provides her own egg and is inseminated with the intended father’s sperm and since the child which is born is her own, chances of future legal complications are pretty high, if the initial contractual agreement isn’t executed with care.
  • Gestational – In this, an embryo is first created through in vitro fertilization and then put in the surrogate. This is legally acceptable in India.

Commercial Surrogacy in India and its Implications

Surrogacy

Prior to the enactment of the Surrogacy (Regulation) Act, of 2021, commercial surrogacy was extremely prevalent in the country, with India being known as the hub of commercial surrogacy. The main reason for this is poverty. Poor Indian women take up surrogacy as the last resort, to save them from starvation and desolate living conditions. Hence, they agree to become surrogate mothers at extremely nominal prices, and thus, the number of foreign intended parents visiting India increases. Foreigners from all across the world began flocking to India in search of surrogate mothers as soon as commercial surrogacy was given legal recognition by the Indian government in 2002. Commercial surrogacy had a negative impact on the reproductive health of the women with the nominal costs leading to their exploitation. 

Despite the Indian Council of Medical Research [ICMR], issuing guidelines for accreditation, supervision, and regulation of ART [surrogacy] clinics in India, there were repeated violations. After this, the case of Baby Manji Yamada v. Union of India happened in 2008. In this case, a baby born through surrogacy, with Japanese commissioning parents was unable to leave India since her nationality wasn’t identified yet. It ended with the Japanese government granting her a one-year visa on humanitarian grounds and the Supreme Court issuing her a travel certificate on the grounds that surrogacy is legally recognized in India. There have been many acts that had been tabled in the past with a few of them such as Assisted Regulation Technology Act, and the Surrogacy (Regulation) Bill {which, after a lot of debate was enacted on December 19, 2018} and finally, the Surrogacy (Regulation) Act, 2021. 

While finally having a child may be a dream come true for many couples, the plight of surrogate women is an issue that should be considered. It doesn’t take a genius to know that there is no attachment deeper than that of a mother and child. Despite not being biologically related, the surrogate mother might develop an attachment to the child in the span of 9 months and might be reluctant to part with him/her. Not only this, women – especially from rural India are forced into surrogacy by their husbands, middlemen, or even their parents for earning easy money and due to this, their right to bodily autonomy is completely dismissed.

Unlike the USA where the surrogate woman has to undergo physical and psychological screening before being implanted with the egg, India has no such provisions. In many places in India, these women are made to stay in hostels during their pregnancy and are allowed to visit their family only on a few occasions. This isolation is detrimental to the mental health of the woman and in cases where pregnancy has an unfavorable outcome, the women aren’t paid the agreed amount nor are they given some sort of insurance. This is why the 2021 Act banning commercial surrogacy except for a few cases, is extremely essential.

Legal Framework

This bill received the President’s assent on December 25, 2021, and became an Act. The Act is the result of two previous bills, particularly those from 2016 and 2019. As stated, the purpose of this Act is to create national and state Assisted Reproductive Technology [ART] and Surrogacy Boards in accordance with other regulatory bodies with regard to surrogacy practices and/or procedures. The 5 key features of the Act are as follows:

  • Prohibition and regulation of clinics – In a nutshell, no surrogacy clinic, pediatrician, gynecologist, embryologist, registered medical practitioner or any person shall conduct or assist in commercial surrogacy and shall never store a human embryo or gamete for the purpose of surrogacy except storage for other legal purposes like sperm banks, IVF and medical research; or conduct or cause to be conducted sex selection for surrogacy.
  • Regulation of surrogacy and procedures – Gestational surrogacy shall be allowed only in cases, where the medical condition of a couple leaves them with no option, but surrogacy. Altruistic surrogacy is allowed.
  • Written informed consent of surrogate mother – It refers to the voluntary consent of the surrogate after she is made aware of the medical impact and side effects of the process.
  • Registration of clinics – Every clinic, facilitating surrogacy shall register with the government within 60 days of the date of appointment.
  • Establishment of National Assisted Reproductive Technology and Surrogacy Registry – There shall be established a Registry to be called the National Assisted Reproductive Technology and Surrogacy Registry for the purposes of registration of surrogacy clinics under this Act.

Conclusion

It can be concluded by saying that surrogacy is a complex process involving several legal and medical steps which need to be taken with extreme care in order to avoid complications in the future. Surrogacy is a process, is not wrong per se. If done with goodwill and willingness, it can be considered a selfless act done by one woman to help the other one, when in need. But since this isn’t the case, in reality, strict acts are required in order to prevent the exploitation of poor, uneducated women.

It is a known fact that people will find some loophole or the other, in this act and continue to practice illegal commercial surrogacy. Foreign foreigners seeking to avoid their own nations’ strict surrogacy regulations used to flock to India in search of poor and vulnerable women to rent their wombs. Foreigners were stopped 6 years ago, almost in 2015, by the Indian government from entering India for the surrogacy process. After that, there are many Indian couples that require surrogacy. The new restrictions and laws will undoubtedly help to prevent surrogate moms from being exploited. This law and its regulations will prevent it from going underground, and all parties will feel safe.

Hence, putting a complete ban on the practice won’t be of much help to anyone. Instead, doctors and social workers should get together and conduct grassroots level awareness programs for women in order to help them understand the whole process and the legal resorts they have in hand. 

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