Is Birth Commercialised Or Emotionalised?

Is Birth Commercialised Or Emotionalised?

Authors:
Kavya Arora, Tanika Kothari,
3rd Year,
School of Law, UPES Dehradun.
Surrogacy bill

Introduction

A women is blessed with a capacity to procreate a life and go through the experience of motherhood. But due to some medical conditions, most of the women could not undergo pregnancy and this can affect an infertile couple emotionally and psychologically too. With the emergence of new reproductive technologies, now the human being have other alternative solutions like artificial insemination, in –vitro fertilization and surrogacy.  Surrogacy is acting as a last ray of hope for those intended couple who wishes to have their own child. According to the Black’s Law Dictionary, surrogacy means the process of carrying and delivering a child for another person[1]. The term surrogate has been originated form a Latin word “surrogatus” meaning a substitute i.e. a person appointed in place of another person. Further the Black law dictionary categorizes surrogacy into two types’ i.e. “gestational surrogacy” and “traditional surrogacy”. In Gestational surrogacy, an embryo created by the process of IVF is implanted into the surrogate mother. Traditional surrogacy refers to the situation wherein a surrogate mother is impregnated with the sperm of the intended father. Surrogacy can be commercial or altruistic depending upon whether it was for the financial gain or for the relinquishment of the child.

Commercial Surrogacy- A bane or a boon

Commercial surrogacy means a situation where in a surrogate mother agrees to bear the burden of conceiving for the intended parents or a single parent in consideration of money. Commercial Surrogacy is a last ray of hope of those intended couple who cannot undergo pregnancy due to some medical reasons .India had become an international hub for cost effective commercial surrogacy.  Here in commercial surrogacy both the mother get benefit of it. As the one gets an opportunity to fulfil their long desired dreams and other get the income to ensure livelihood of her family.  It should be banned as it is exploiting the poor women who are considered as good labourer for the world reproduction.  Unpleasant social situations like poverty are forcing women to rent their womb for the infertile couple.

Is She A Child Producing Factory?
When we look at the poor women, who are not even aware of the rights and duties are often forced by their husbands or families to undergo surrogacy process for making money easily. Their condition is even worse that they do not even have the right to take decision over their own body. There are so many social and ethical issues involved in the surrogacy like children are considered as a commodity which can be bought or sold at a price. It is a form of baby selling.[2] Another challenge is where the surrogate mothers refuse to accept the child with deformity or due to separation of parents.[3]
Is Her Body Used For A Money Making?
Due to the lack of any legal provision for regulating the commercial surrogacy in India. Commercial surrogacy is only beneficial for the rich infertile couple and a trap for the fertile women as they are not aware of the process and the nature of the surrogacy. Their economic necessity to ensure their livelihood is enticing them to enter into such agreements.  This kind of agreements has become a modern day slavery and mockery of motherhood. It has been said that in the surrogacy arrangement “the barren gets a baby, the broke gets a bonus”.

As the remuneration paid to the surrogate mother is used as a earning. The monetary consideration for selling the womb to the infertile couple can create an emotional or psychological detachment of the surrogate mother from the growing foetus but this situation can be avoided in case of altruistic surrogacy. In 228th report of 18th law commission in 2009 titled “Need for the legislation to regulate ART clinics as well as rights and obligation of parties to surrogacy”[4]. In this report the author has recognized the surrogacy as the supreme saviour and has recommended some suggestions while legislating on surrogacy.

Surrogacy is legitimized in India as nowhere in any of the statues it has been prohibited. The Indian Council for Medical Research guidelines were being adopted in 2005 by the officials to regulate the ART clinics in India. Though it was a positive approach towards securing the interest of the surrogates and the child but it’s non- binding nature has become a barrier as no ART clinics adhere to it.    

Is It Only Exploitative In Nature?
Altruistic surrogacy can be equally exploitative in nature as commercial one. The condition for altruistic is to have a close relative as a surrogate but what if someone doesn’t have. This is highly discriminatory in nature.[5] If commercial surrogacy is exploitative in nature as it affects the health condition of a women then what about the health of a poor relative[6] ?

 Moreover the spirit of the right to privacy judgement has been lost. Justice CHANDRACHUD has written “Right to privacy includes the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation”. The surrogacy bill 2019 while defining the “couple” restricts the surrogacy to single parents, gay, unmarried couple.

Further it also infringes the right to privacy of heterosexual couples as first they need to prove their infertility by a certificate from a district medical board.

Pitfalls Of The New Bill On Surrogacy

The Surrogacy (Regulation) Bill 2019 bans commercial surrogacy and only allows for Altruistic surrogacy, which means that a woman in order to surrogate a child has to be a close relative of the married couple and she is not to be paid for the same. But, surrogacy in its true sense is a form of reproductive labour, and it’s better to be compensated economically for it as the woman in return is risking her health for the same. The term close relative is also not defined per se in the bill. As for the altruistic arrangement, the commissioning couple gets a child; and doctors and hospitals get paid. However, the surrogate mothers are expected to practice altruism without demands.  

There is no doubt that as of today there is a potential for exploitation and the surrogacy model that exists today can and does exploit surrogate women.  But the same can be regularised or even minimalised by keeping an oversight and maintain adequate legislative norm-setting.

With this Bill, couples who for other reasons don’t have close female relatives of child-bearing age, will also be arbitrarily barred from surrogacy.

The Surrogacy Bill is framed in way to preserve the purity of the families. First of all, the surrogate mother has to be married. Then, she has to necessarily not give any of her biological material, no gametes, to the child, which means her egg cannot be used. Now of course, the surrogate mother has her own eggs, which can easily produce her child with sperm that is someone else’s. But because they don’t want the child to be connected by genetics to the surrogate mother, they’re saying she has to go through a whole complex technological procedure of having a “test tube baby” when she does not really need it, when she can just use someone’s sperm and get pregnant.

It disallows the same as it wants the purity of the family to be maintained. The bill allows only proper married (heterosexual couple), the real egg of the married woman as well as the real sperm of the married man to produce the child. And then they want the surrogate mother to be from within the family also, an environment close to your community and caste. It’s reinforcing hetero-patriarchy in so many different ways using technology, and removes every single possibility of [social, biological and political] subversion that surrogacy once presented.

It also arbitrarily states that surrogate mothers can undergo the process of surrogacy only once, ostensibly to protect the health of surrogate mothers, while placing no such restrictions or caps on mothers undergoing IVF themselves. It provides no explanation for this discrepancy.

An issue that remains unaddressed in this Bill is that – firstly, in many families and in most parts of India, it would be highly unusual for women in the same families to volunteer to become surrogates for their own family members, and secondly, given the patriarchal structures that prevail in India today, with the option of commercial surrogacy being totally removed, the likelihood of women being forced by family members to undergo surrogacy could increase.

It seems to carry the tone of someone who thinks that women not fitting in these categories are not sound enough to make decisions in their lives. Unfortunately, this tone is present throughout the Bill.

According to the bill, you can only be an intending couple if you are childless. Also, the intending couples have to be married for at least five years. They cannot have conceived in these five years either. This means that the intending couple’s age has to be in the range of 26-55 years (for the man) and 23–50 years (for the woman). However, even NRIs, Persons of Indian Origin (PIOs) and Overseas Citizens of India (OCIs) are disallowed, which is a bit too extreme. After all, people of Indian origin must be separated from ‘other’ foreign nationals with the explanation that the diaspora has been ‘engaged with’ by the government.

Single parents are also disallowed – and this is very rigid, because no other country mandates marriage as a requirement for surrogacy. Same-sex couples are also not allowed. Even people in live-in relationships are, in all likelihood, not allowed to have surrogate children. The Bill requires three things for surrogacy – a certificate of essentiality, a certificate of eligibility for the couple and a certificate of eligibility for the surrogate mother from the appropriate authority (which is the executive authority established by the Bill). No time frames have been given for granting these certificates by the appropriate authority. Also, there’s no provision for a review process, in case the applications for
the required certificates are rejected. On the other hand, these should have been defined in the Bill. Rejections should be subject to challenge, and the reasons should also be divulged.

Suggestions For Improvement

As several have pointed out, such a ban will not really end the practice of commercial surrogacy, but merely take it underground, making conditions even more unsafe for surrogate mothers. However, instead of removing the means of livelihood from them, you should have a contract that all surrogates and the commissioning parents have to sign.

The contract should include details of the payment to be made, specify insurance coverage, and give an assurance that the mothers will be treated properly even in the post-partum stage. Surrogate mothers have indeed been exploited, because there is no process to monitor the clinics or any law to ensure that the mothers are not defrauded by the clinics or the intending couples. The question is, will this Bill manage to ensure a fair and just process? Surrogates are actually not very attached to the babies they are carrying in their wombs, because it is a means for them to get a livelihood. If the government can only ensure that everything is done legally, we don’t need this kind of a Bill that is so non-inclusive and superficial, in the sense it doesn’t delve deep into the problems.

The rules in this Bill only use the excuse of “protecting” women who may be “exploited” by surrogacy, while doing nothing to actually curb the exploitation. Also, that the surrogate mothers should be paid for their services and it could be termed as “Compensated Surrogacy”.

The conditions of the Bill will also exclude inter-faith and inter-caste couples who don’t have their families’ support from opting for surrogacy. Even after progressive, landmark judgments in Navtej Singh Johar vs Union of India[7] [the section 377 judgement] and NALSA vs Union of India[8] [which granted the right to gender self-identification] – the normative definition of family and the essentialization of marriage [to a purely heterosexual definition] in this Bill excludes same-sex couples, and people in a civil partnership or a live-in relationship.”

This whole way of going about surrogacy is to protect the “original, married unit”. There’s no control on them if something happens to her. How are they going to compensate her, say, if she gets cancer two years later because of all the drugs and treatment that this kind of surrogacy process involves?”

It is not by narrowing the criteria for women that you ensure they are not exploited, but through heavy regulation. All these regulations do is deny genuine couples from finding a proper surrogate mother by limiting the pool too much. It is indeed hard to find a woman that fits all the above-mentioned categories.

The appropriate authority will also regulate surrogacy clinics by granting registration certificates. It can also conduct searches at places suspected of violating the provisions or rules and regulations of this Act. The only basis it needs to conduct these searches is ‘reason to believe‘. This can lead to the clinics being unduly harassed. Section 45 makes the Centre or the State, and the appropriate authority immune from legal proceedings for actions taken in ‘good faith’. If that is not the meaning of arbitrariness and vagueness, then I don’t know what is.

Conclusion

Surrogacy as one of the important development of this new age medical era is a blessing for couples or individual who cannot procreate a child through natural course. Surrogacy industry in India is fully grown today. Banning it at this stage may create implementation challenges, extortion by state authorities and push the business underground. The Surrogacy bill has been drafted hastily, without taking into consideration the mere fact that the society is evolving and that the bill is very conservative in nature. The proposed bill doesn’t provide for any compelling argument for banning commercial surrogacy and is biased towards the traditional married couples. Formalizing and legislating clearly defined regulations to prevent unethical practices in the domain of surrogacy are an immediate need. The rules and regulations must be stringent, but discretionary in nature. A proper law with strict regulations and enforcement which would address the concerns of all stakeholders in the industry is required at this stage. Laws should be framed and implemented in a way to cover the grey areas and to protect the rights of women and children.
Therefore, while drafting this bill there is a need to be perhaps more flexible and identify or understand the current scenario and then draft the bill accordingly.




[1] http://thelawdictionary.org/surrogacy/ 
[2] Marth A Field , “Surrogacy contracts gestational and traditional: The Agreement for non- enforcement”,31
  Washburn Law Journal, 1 (1991-1992), pg. 7.
[3] Dr Jyoti Bhakare , “ Surrogacy – A reality eclipsed by Ethical , Social and Legal issues- Indian perspectives”,
  Nayaydeep 2010, pg. 29.
[4] This report was submitted by Dr. Justice A.R Lakshmanan , chairman of law commission to the union ministry
  of law and justice, government of India on 5th of Aug 2019.
[5] Parry B. Surrogate labour: exceptional for whom? Econ Soc 2018.
[6] Asian News International Having fertility problems 50% of patients coming for IVF have genital TB. 23 Hindustan Times, 2018.
[7] WRIT PETITION (CRIMINAL) NO. 76 OF 2016.
[8] WRIT PETITION (CIVIL) NO.400 OF 2012
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