Surrogacy – In-Depth

Background:- Surrogacy has been a major debate across India , since the beginning of 21st century. Almost a decade has passed since the curious case of Baby Manji (explained below), we are yet to have a robust framework of regulation. The reason are quite simple though. The whole concept of surrogacy has consequences that travels in to many spheres – Social , economic , religious , ideology , science and ethics . To understand it and to comprehend properly ,one needs a little deeper understanding , and more often than not we have come across brilliant articles and write-ups by many learned man, but almost all of them explore certain aspects of surrogacy and the theme usually does not delve in to all spheres.Its a matter of great significance. Hence we at UPSCTREE , tried to contemplate this particular issue , in order to give it a holistic understanding .

Introduction :-

Definition :- Surrogacy, a practice in which a woman agrees to carry a child to term for a couple who will then keep the child as their own.

Type :- Fundamentally, there are two types of surrogacy — traditional surrogacy and gestational surrogacy.

In traditional surrogacy, a surrogate mother is artificially inseminated, either by the intended father or an anonymous donor, and carries the baby to term. The child is thereby genetically related to both the surrogate mother, who provides the egg, and the intended father or anonymous donor.

In gestational surrogacy, an egg is removed from the intended mother or an anonymous donor and fertilized with the sperm of the intended father or anonymous donor. The fertilized egg, or embryo, is then transferred to a surrogate who carries the baby to term. The child is thereby genetically related to the woman who donated the egg and the intended father or sperm donor, but not the surrogate

Monetary compensation may or may not be involved in surrogacy arrangements. If the surrogate receives compensation beyond the reimbursement of medical and other reasonable expenses, the arrangement is called Commercial surrogacy; otherwise, it is often referred to as altruistic surrogacy.The concern here is largely based upon the commercial surrogacy

While traditional and gestational are simply methods of surrogacy or so to say Science , Commercial surrogacy is altogether different and is a product of economics.

Commercial Surrogacy and India:-

Commercial surrogacy in India is legal since 2002. The availability of medical infrastructure and potential surrogates, combined with international demand, has fueled the growth of the industry.Surrogate mothers receive medical, nutritional and overall health care through surrogacy agreements.

Commercial surrogacy is a product of a contract , hence it makes sense to understand the legal aspect of it first .

Legal aspects of Surrogacy:-

The curious case of Baby Manji :-

Japanese couple Ikufumi and Yuki Yamada traveled to India in late 2007 to discuss with fertility specialist Dr. Nayna Patel their desire to hire a surrogate mother to bear a child for them. The doctor arranged a surrogacy contract with Pritiben Mehta, a married Indian woman with children. Dr. Patel supervised the creation of an embryo from Ikufumi Yamada’s sperm and an egg harvested from an anonymous Indian woman. The embryo was then implanted into Mehta’s womb.
In June 2008, the Yamadas divorced, and a month later Baby Manji was born to the surrogate mother. Although Ikufami wanted to raise the child, his ex-wife did not.Suddenly, Baby Manji had three mothers—the intended mother who had contracted for the surrogacy, the egg donor, and the gestational surrogate—yet legally she had none.
The surrogacy contract did not cover a situation such as this. Nor did any existing laws help to clarify the matter. Both the parentage and the nationality of Baby Manji were impossible to determine under existing definitions of family and citizenship under Indian and Japanese law. The situation soon grew into a legal and diplomatic crisis. The case of Baby Manji illustrates the complexity and challenges faced by institutions in the face of emerging technologies.
At first Yamada tried to secure documents to take the baby to Japan. But the Japanese Embassy in India refused to grant Manji a Japanese passport or visa. The Japanese Civil Code recognizes as the mother only the woman who gives birth to a baby. The code does not recognize surrogate children. In this case, the woman who birthed Manji was Indian, not Japanese, which meant Manji was not entitled to a Japanese passport.
Yamada’s next stop was the Indian government. For a time, even though he was her genetic father, it looked as though he would have to adopt Manji. Because Indian laws don’t address commercial surrogacy, the genetic parents of babies born via surrogacy are required to adopt them. Again Yamada hit a legal snag: A 120-year-old law (Guardians and Wards Act 1890) does not allow single men to adopt baby girls.

The case of Baby Manji throws light on the legal entangle surrounding surrogacy. The reason behind this cobweb is simple – most of our laws are product of situations in society, while science has progressed as far as Assisted Reproductive technology and genetic engineering , we don’t have the necessary legal framework that define and draws the line between what is legal and what is illegal.

As of now , the surrogacy is addressed by a guideline issued by Indian Council for Medical Research. Though , the guidelines addresses on how to and what to do ,it is being a guideline – can not be enforceable in case of any abuse.Thus , it requires a Law that could address the issue .

The next theme to understand surrogacy is its commercial nature.

Economic aspects of Surrogacy:-

Surrogacy became an industry in India and to label it as fertility tourism would do justice to it.
The availability of medical infrastructure and potential surrogates, combined with international demand, has fueled the growth of the industry.Surrogate mothers receive medical, nutritional and overall health care through surrogacy agreements.
India is a favorable destination for foreign couples who look for a cost-effective treatment for infertility and a whole branch of medical tourism has flourished on the surrogate practice.

Surrogacy as Labour:-

It is worth noting that while commercial surrogacy involves an unusual intertwining of women’s reproductive capacities with productive roles, there are some fundamental parallels with other forms of work. For example, surrogates, like factory workers, are asked to give up the product of their labor—in one case, a baby, and in the other, the material objects as well as the surplus value they produce. In both cases, they are also asked to treat their employers’ property as if it were their own, even as they are constantly reminded that it is not.
The reality in India, is that commercial surrogacy has become a survival strategy and a temporary occupation for some poor rural women, where women are recruited systematically by fertility clinics and matched with clients from India and abroad.
Identifying commercial surrogacy as labor, susceptible to exploitation like other forms of labor, and by simultaneously recognizing the women as critical agents, we can deconstruct the image of the victim that is inevitably evoked whenever bodies of third-world women are in focus.
Identifying and persuading women in desperate need of money for their children, the recruitment strategy is founded around the dual image of a mother-worker. Being a mother is not just a medical requirement for a woman to be recruited as a surrogate but also an insidious mechanism to control her as a worker. This interplay of the mother-worker duality continues to underlie the next two steps in the labor process: counseling and the signing of the contract.
Bringing a needy woman from the village to the clinic is a small first step in the whole process. Economic desperation does not make a perfect surrogate; a new subject has to be produced, a surrogate who is a willing worker and, simultaneously, a virtuous mother.
The irony :- The irony is that the mother has to be a perfect ,virtuos mother till the baby takes birth and give the baby away immediately . So as long as the baby is in the womb, she is not supposed to treat surrogacy as business , but as soon as the baby is out , the mother has to be a perfect business woman , who respects her contract and gives her child away .The only problem is , no one knows how the emotions comes in to play , and this includes the mother too.
The surrogacy contract, which lays out the rights of the surrogates, is in English, a language almost none of the surrogates can read. Some essential points of the contract, however, are translated for them.
Womb-on-Rent:-Doctors usually counsel the mothers as they are just the womb – the transient nature of mothering role is reiterated to them and this prevents them from being attached to the child, as the Doctor’s claim.This renders mother as a disposable worker.
The ambiguity surrounding commercial surrogacy: it lies somewhere between contractual labor and motherly altruism.

How Surrogacy works:-

Surrogates typically have two kinds of living arrangement during their nine months of pregnancy: living in the rooms above the clinic or in surrogate hostels
The women have nothing to do the whole day except pace back and forth on the same floor (they are not allowed to climb the stairs and have to wait for the nurses to operate the elevator), share their woes and experiences with the other surrogates, and wait for the next injection.
It is similar to any sweat shop , the only difference is that , here the doctors are the supervisors enforcing the contract and they exploit as much as they can to serve the needs of the client and to ensure a better end product- baby.Hence , many literature label it as Baby Farms.
The hostels or clinics are usually have 2 things common across board – Class on Spoken English(sometimes english lesson with computer lessons) and a prayer hall.These two serve the need of the client very well.
The computer and English lessons create a better worker (for now and the future) who can communicate more effectively with the couple hiring her, while the elaborate prayer room and scheduled prayer hours emphasize the image of a virtuous, religious,and conservative mother-worker.
The mothers are happy though ,as they don’t have any manual work to do. They wake up , take tea , take medicine, sleep, wake up ,bathe ,eat lunch and so on , prayer in the evening etc..But they usually forget that they are labour , and this time its not their mind or hand doing the work , instead it is their womb .Motherhood is on sale and mothers are restricted to embrace it, both physically and emotionally.

From the above discourse as surrogacy becomes a tool for economic benefits , poor , illiterate ,rural women are at the mercy of the doctors and agents. Given the economic importance , it is subjected to exploitation as any other forms of labour , but motherhood as a labour throws significant question on the ethical and social impacts on the surrogates.

Social and Ethical aspects of Surrogacy:-

The parallels between commercial surrogacy and sex work in the Indian public imagination make surrogacy a highly stigmatized labor option. Although surrogacy as a process is an ethical quagmire in almost all countries, surrogates are not usually stigmatized. In India,however, the surrogates face a high degree of stigma.
The stigma and secrecy surrounding surrogacy limits the scope of recruitment through word of mouth, and doctors have to rely on formal and informal surrogacy brokers. Former surrogates, women who could not become surrogates for medical reasons, and midwives often become brokers in this trade.
Also , as explained before, motherhood has a highly emotional attachment to it. To treat it like a business , leaves a wide loop hole as long as the ethical and psychological care is concerned for the surrogates.
Adoption vs Surrogacy : –
- Adoption has been on the rise when surrogacy was far from reach .However when a couple can have their own baby , with out going through the pain and pleasure of motherhood , surrogacy caught the imagination of many.Especially , the clients are from developed countries, who have enough money to buy the pleasure of having a baby without enduring its pain.
- This has a wrong impact on the adoption itself. Adoption gives a new hope of life to the orphans . But surrogacy has taken over and many orphans who could have otherwise found a better home are now left in the orphanage centers.

Conclusion :- The economic desperation of poor and rural women and low cost reproductive technology , made India a commercial surrogacy hub .Many of the religions does not recognize Adoption itself, to accommodate surrogacy in theology is a distant dream.India , being a highly religious country , the surrogates also encounter religious stigma too.The exploitation are real and its reaches are far and wide.Thus in context the way forward would be :-

Way forward:-

It is undeniable and probably medically unethical to provide help of surrogacy to the couple who could not conceive child of their own. Thus Surrogacy is going to stay and if we could deal with the economic exploitation and social stigma in a better manner , then this branch of fertility tourism can be of help.
What makes it unethical is that , those who have the means to afford surrogacy , usually doing it even though they have the biological capacity to reproduce.
The mother who gives birth is usually highly attached to the child, while the mother as per the contract , does not go through pregnancy , hence largely lacks the emotional attachment with the child .This does not augur well for the child and hence there should a way to find a balance between these two psychological needs, which can only be answered by the people who practice emotional intelligence of higher order and the necessary arrangement has to be made once we acquire the recommendation. Counseling is required for both – the surrogate and the contract mother.
The exploitation of cheap labour has been the norm in any economic activity. This is very appealing to the foreigners , where they could not find a commercial surrogate at affordable cost at home , they fly to India.The sheer distance keeps the two mothers separate and hence arises the issues of emotional detachment.The only way forward for this issue is , both the surrogate and the contract mother has to be in the same country and in constant touch. While the surrogate endures pain , the contract mother should be there to land a hand aside her bed.
A robust legal framework is necessary to address all the aspects of this issue – social, legal, economic, emotional , ethical and medical.
The Government of India can create a cell with in Ministry of External Affair to look after the applications originating from foreign countries.Their merit should be decided by a medical team to check whether the applicant has the ability to reproduce on their own or not. Also , the team should do the necessary check on the couple and the surrogate to see if there is any danger to this arrangement.It also can issue visas , so that the contracting couple can stay with the surrogate during the pregnancy.
Many lose lives while giving birth due to medical complications, in this case , a willing surrogate should be provided with adequate insurance and her decision should be a conscious one.Also, the surrogate should be provided with enough access to the child after birth so as to fulfill her psychological needs . To this to occur , a holistic approach and guideline has to be developed .
The compensation and benefits for the surrogate should be taken care of and parity should be maintained . So that the surrogate is not exploited due to economic reasons.
In the conclusion , surrogacy , indeed is a cobweb and due care has to be taken to frame the law. The Medical association too has to create a ethical guideline for the doctors so that they could restrain from acting as mere contract enforcers while working for the interest of client.
We are at the cross-roads where our traditional methods of living has constantly challenged by emerging technologies , appropriate action on part of the government at right time can help to realize the goals of all without jeopardizing anybody’s interest.