Surrogacy Bazaar, Ethics and Moral Policing

In this day and age where capitalism rules the world, there has been much debate over the commoditization of numerous once-sacred activities such as child birth. For a fixed price tag, you can now implant your spouse’s and your gametes into a third-party’s womb and receive your child 9 months later. However, opponents of surrogacy view the advent of surrogacy as the beginning of a slippery slope. By allowing couples to pay for the birth of healthy babies from the womb of a surrogate, some have felt that it is similar to selling the baby in the end as money is transacted and what the couple receives is the baby. Others have argued that surrogate mothers undergo mental trauma as they are expected to give up the baby that has lived in their wombs for the past 9 months because of a bond formed between them. This moral dilemma has also highlighted the legal problems surrounding surrogacy especially if the surrogate mother decides to lay claims on the baby after its birth.

This article was first posted in 2009 at sudeshkumar.com. Later it is published in Medical Ethics, 2011 by Greenhaven Press, Detroit, Michigan with title of ‘Surrogacy Can Be an Ethical Solution to Infertility’ which is listed at Indiana University Library, National Library of Australia, Bowdoin College Library, San Jasinto College Library etc. Here, I am presenting a revised version of same, where you will find an overview of The Surrogacy (Regulation) Bill, 2018, which recently got green signal by parliament of India.

There is debate too on the claim that surrogacy exploits the poor as only those in need of money would so willingly give up their wombs for others, subjecting themselves to the risk of maternal deaths may be a problem in countries with poor or inadequate health care facilities. More extreme feminists even argued that surrogacy is similar to prostitution as women in both instances are sexually exploited for money.
 
Niyoga
 
The practice of surrogacy can be traced back to the ancient Hindu culture where ‘Niyoga’ was followed. Later, it was abolished by Socio-Religious Reform Movements in British India (1858–1947). According to some of Hindu Texts viz. Manu Smiriti (9.59), Yajanavalkya Smirti (I.3.68), Garuda Purana (I.95.16-17) – Niyoga refers to the practice of temporary sexual relationship by woman with her husband’s brother or a revered person in society for the sole purpose of having a child if she becomes a widow or her husband is infertile or impotent. The act of temporary sexual relationship were treated as Dharma, while doing so man and woman had to maintain a pure intention about it i.e., neither passion nor lust.
 
There were some rules associated with Niyoga, such as –
 

1) The man would do this only to help the woman to have a child and not to have pleasure.
2) He was allowed to do this for a maximum of three times only in his life time.
3) The consent of the woman was necessary.
4) The child born with the help of this process was considered as a child of the woman and her husband.
5) The appointed man would not seek any paternal relationship to the child.

 
The concept of Niyoga might sound ridiculous to us but it was practiced even by the other cultures likes Jews though in a different form.
 
Here, I would like to debunk some of these myths as I feel that there is a need and a place for surrogacy to exist in society. Firstly, it is important to note that as couples are becoming more educated, some put off procreation and settling down to start a family because they want to pursue their dreams or that high flying career, thus they tend experience fertility problems which becomes increasingly common with age. This creates a gapping difference between wants and ability. The couple who are financially stable have decided to start a family, but they are unable to because of biological reasons. This is where surrogacy fills the gap by enabling couples who have given up their childbearing years for financial security, a real chance at having a family of their own. Although some may argue that there is always adoption to meet such a gap, it is undeniable that there is a preference for raising one’s own flesh and blood instead of someone else’s.
 
Secondly, surrogacy should not be seen as the commoditization of infants even though the end product of the whole surrogate pregnancy is the baby. In economics, a commodity is a unit that can substitute for another at all points, so each unit has no special intrinsic value. Thus, one cannot argue that the baby has become a commodity in surrogacy as the baby is unique. In fact, the babies would not even exist, if not for the surrogacy. Surrogacy, should be instead, viewed as the payments to the individual for the gestational services provided to bring the client’s bloodline into this world.
 
Surrogate mothers are respected for such services as surrogacy is a tedious and dangerous job which puts their life on the line, so they should be fairly compensated. This brings us to the point on the mental trauma experienced by surrogate mothers after birth. Rather than to accept the common misperception that surrogates feel traumatised after relinquishment of their rights over the child, it has been challenged that an increasingly majority feel empowered by their surrogacy experience.
 
Thirdly, clients would definitely choose healthy surrogates to bear their children so the claim that surrogacy exploits the poor usually does not hold as clients are likely to decline a surrogate in abject poverty due to unstable environment she is living in. Feminists who make the comparison to prostitution are preposterous as the underlying aim of both activities are different and should never be seen as a single entity together.
 
However, we do admit that there are thorny issues that have to be resolved here before we can fully embrace surrogacy. Although medical health care is becoming increasingly commonplace and advanced, there is always this risk which surrogates undertake to bring life into this world. In the event that something unfortunate does occur, will insurance policies cover the costs incurred or will they choose to argue that they are allowed to forgo the compensation as the surrogate chose to bear child themselves and hence created the opportunities for such mishap to occur, where the risk was not initially calculated into the previous insurance premiums they were paying. There is also a problem of ownership over the baby who arises due to the complexity and possibilities that may occur during the entire process. These include concerns like what happens if the surrogate fails to relinquish their rights over the child after the birth. In this respect, I feel that the surrogacy contract laws should be reviewed to enforce a mandate that the contracts may not require the woman who carries the baby to surrender it regardless, but in choosing to do so, she has to compensate the parents fairly. This should only be undertaken as a last resort as frequent occurrences of such would only serve to discredit surrogate mothers in general. Hence, rigorous counselling should be provided to both client and surrogate before legalising the transaction.
 
More complex situations may arise in a situation where the clients pass away during the course of the pregnancy. Should surrogates be allowed to abort the foetus then as it is technically not theirs and it would have perished together with the mother should the pregnancy have been borne by her. Yet, this is clearly not an option as such actions would be inhuman as it literally devalues and insults the sacredness of life. The infant may also be orphaned if the couple divorces each other and decided that neither is interested in taking care of the baby they once planned to have together, for example, a popular case where a baby girl was abandoned in India. She was the first surrogacy orphan after her parents divorced weeks before she was born and her mother refused to take her. The custody of the child born to an Indian surrogate mother and intended for a Japanese couple, hangs in limbo after the pair divorced. Also, should the couple be allowed to terminate the pregnancy if the surrogate accidentally violates the terms and conditions of the surrogacy contract, resulting in unintended consequences on the wellbeing of the child? For example, is the couple paying for the surrogacy allowed to request for an abortion should the surrogate mother contract a disease like AIDS where there is an extremely high chance that it is directly passed to the infant? While this is an unfortunate situation, there is a huge conflict between all involved parties as everyone is impacted by the final decision undertaken. Thus, it is favourable to consider how to keep ourselves out of such problems first, before embracing surrogacy.
 
The infinite number of possibilities only compound the ethical and moral dilemmas encountered during the implementation of surrogacy as a primary means of enabling couples who wish to have children but are unable to do so. Even though to some, the ends may not justify the means, we should look towards greater compromise in society and the creation of social safety nets to minimise such tragedies from happening in our search for other ways to taste the joy of having a family.
 
 
An overview of the Surrogacy (Regulation) Bill, 2018
 
The objective of the Surrogacy (Regulation) Bill is to regulate and monitor the fastest growing surrogacy bazaar in India, in order to prevent the exploitation of surrogate mothers by greedy medical practitioners and their money making clinics. It will also protect the rights of children born through surrogacy. Though this is the first time, where law is going to be implemented more or less in form of moral policing.
 
This Surrogacy (Regulation) prohibits commercial surrogacy and allows only altruistic and ethical surrogacy which “does not involve any financial compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy period”. It specifies an eligibility criterion for the surrogacy seeking couple such as age and marital status. They have to obtain a ‘certificate of essentiality’ and a ‘certificate of eligibility’ from local Surrogacy Authority in their respective state.
 
Certificate of Eligibility:
 
The Surrogacy Bill limits the use of surrogacy procedures to married Indian couple, between the age of 23 to 50 years for the wife and 26 to 55 years for the husband. It does not allow the use of surrogacy for following categories.
 

1.      Live-In or Unmarried Couple;
2.      LGBT (Lesbians, Gays, Bisexual & Transgender);
3.      Single (Never Married);
4.      Widow / Divorcee / Separated;
5.      NRI and OCI;

 
Certificate of Essentiality:
 
One of the conditions to get ‘certificate of essentiality’ is proven infertility of either one or both partners. However, ‘infertility’ has been defined in a ridiculous sense under the Bill as “inability to conceive after five years of unprotected sex or due to any medical condition”.
 
Surrogate Mother:
 
The surrogate must be a close relative of the surrogacy seeking couple, a married woman having a child of her own. She should be between the age of 25 to 35 years, not have been a surrogate earlier and must be mentally and physically fit.
 
It also states that the number of attempts of the surrogacy procedure shall be prescribed.
 
Abortion:
 
The Surrogacy Bill is meant to curb the exploitation done by medical practitioners in regard to termination of pregnancy of a surrogate child. The abortion of such a pregnancy requires the consent of the surrogate mother as well as authorisation by the government authority, while also being compliant with the provisions of the Medical Termination of Pregnancy Act (MTPA), 1971. A child born out of the surrogacy procedure shall be deemed to be the biological child of the surrogacy seeking couple so that child should avail his/her rights as seen in normal cases.
 
Surrogacy Clinics:
 
All surrogacy clinics need to be registered by the appropriate authority in order to undertake surrogacy or its related services. It also prohibits sex selective surrogacy and the storage of embryo or gamete for the purpose of surrogacy.
 
National Surrogacy Board:


All restrictions will be enforced by local authorities, which will be appointed by State and Central Government, which will work along with National Surrogacy Board. The Surrogacy (Regulation) Bill also states that additional eligibility conditions may be issued by the National Surrogacy Board, through regulations. It is also mentioned that surrogacy may be allowed in cases of “any other conditions or disease”, other than those already mentioned.
 
Surrogacy with Close Relative:
 
The Surrogacy Bill does not define ‘close relative’, neither does it focus upon the degrees of relationship that would be considered ‘close’. It may be defined at later. The concern with this compulsion is similar to Niyoga, especially when we have patriarchal society. In some cases, the lack of consent may become extremely difficult to prove. It may also spark unwanted family disputes, from which the child also may suffer in future. It may go against the right to privacy under Article 21 of the Constitution of India. This may in-turn expose women to greater risk of hostile social environment, domestic violence, biased treatment, etc.
 
Embryos / Gametes bank:
 
The Surrogacy Bill places a complete ban over the storage of embryos and gametes. The ban, intends to curb illegal selling of the embryos and gametes. However, it will make surrogacy more expensive as the success rate for implantation of the gametes is very low, the frozen embryos could be used for the repeated procedure. 
 
Punishment:
 
It prescribes a punishment of imprisonment for a maximum period of 10 years and a fine which may extend to 1 million rupees for violations of its provisions.
 
 
06 July, 2019
Sudesh Kumar
Email: ask@sudeshkumar.com