“The most beautiful day of my life was the day I became a mother, but a Surrogate one! - Vrinda, A Surrogate Mother
Surrogacy in today’s era is an enticing option for couples who are unable to conceive and have children. The word surrogacy is derived from the Latin term subrogare. It means a substitute appointed to act in place of another. When we talk about surrogacy all we know is that it is one of the best methods worldwide to produce children. However, little are we aware of the things that are happening in the world under its veil. This procedure has led to many doubts and debates over the years. The major issue is the commercialisation and the brutal exploitation of poor surrogate mothers under the garb of science and technology. It has led to a lot of social, psychological, medical, and economic impacts. There is a huge violation of the human rights of these surrogate mothers. It calls for an immediate need for framing and implementation of stringent laws to regulate the entire procedure. Through this article, the author would like to highlight the problems associated with surrogacy and the status of a surrogate mother in India. This article mainly highlights the commercialisation of surrogacy in India. After a brief introduction of the topic, it mentions the meaning and popularity of this method in India. It touches upon several tragic and extremely distressing incidents that have occurred in the past years. The moral and ethical issues relating to surrogacy are also studied upon. Further, it discusses the legal and judicial approaches. The paper concludes with observatory remarks followed by suggestions and recommendations.
Keywords: Surrogacy, Commercialization, Surrogate Mother, Exploitation, Intended Parents, Egg Donation, Altruistic Surrogacy, law, Judiciary.
Nature has bestowed this beautiful capacity to women of procreation. The author thinks that is wonderful. However, some women cannot conceive due to certain medical complications. However, they often wish to have their biological children. This urge of motherhood prompts them to opt for alternatives. The creation of babies in laboratories through test tubes, in vitro fertilisation, and surrogacy has led to unexpected leaps into the sexual domain. In a rapidly globalising world, Wombs for Rent is a growing business.
Meaning & Popularity
Over the years, there has been vast advancement in science and technology, particularly in Assisted Reproductive Techniques (ART) to beget children. One method that has gained immense popularity is surrogacy where a woman agrees to carry a baby in her womb for a childless couple and gets remuneration for her services.
Today, India is one of the largest hubs of surrogacy, primarily commercial surrogacy. People from around the world come to India for this as it is cheap and surrogate mothers are readily available.
A 2012 study backed by the United Nations stated that this business is estimated for 400 million dollars with around 3000 plus fertility clinics functioning in India, of which most are unregistered. The ground question is, how much does a surrogate mother get paid? The answer is extremely little as compared to the labour they provide.
Carrying Dreams: Painful Stories From Wombs
"Sochti hu paise mil jayenge to rikshaw le lenge, mera aadmi chalayega toh thode paise aayenge."
(I wish to buy a rickshaw for my husband so that he can earn for the family) - 38 years old Kaushalya, mother of four surrogate babies.
Most surrogate mothers are from poor backgrounds; driven by poverty, they consider their wombs the only valuable asset. So they decide to rent it for some money. The middlemen or the third-party administrators, on the other hand, take undue advantage of their situation and lure them with large sums to enter into the field. Mostly financially and socially vulnerable women are the prime targets for recruitments.
“Biological Colonialism Kills Premila Vaghela”
It was the headline wherein the surrogate mother died after giving birth to the baby. The family did not receive any compensation from the intending parents.
A significant issue of commercial surrogacy is the health risk involved. There are many cases reported wherein women have suffered and died because of infections, multiple pregnancies, cesarean delivery, egg donation procedures, selective abortions, miscarriages, and post-partum stress. Most doctors insert multiple embryos to increase the chances of pregnancy; it has a very adverse impact on the health of surrogate mothers. There are also forceful sex-selective abortions making the entire baby business centre on racism, colonialism, and gender.
“Trafficked tribal girl forced to conceive, deliver babies for sale.”
It refers to a girl from Jharkhand, abducted and taken to Delhi, and forced to deliver six surrogate babies continuously.
Surrogacy today has completely turned into an exploitative business turning women into baby-breeding machines.
“A law student from Meerut raped, beaten for refusing surrogacy in 2015.” Yet another shameful act, where a girl was subjected to physical violence for surrogacy.
In a recent study, the question raised was, “Whether women indulged in this business were coming voluntarily or forcefully?” The answer was that most women were under the pressure of either their families or their financial state. Recently several surrogacy rackets were busted by the police. Some of the doctors are forgetting their ethics and are involved in such illegal activities.
Legal & Judicial Approach
In the year 2005, considering the situation Indian Council for Medical Research (ICMR) came up with specific guidelines concerning the registration of fertility clinics, remuneration given to the surrogate mothers, allowing altruistic surrogacy (where the surrogate mother is a relative or close friend of the intending parents) and other issues.
The fact remains that guidelines are voluntary and have no force of law. So, some in vitro fertilisation doctors followed these guidelines, and many chose not to. Hence, in the absence of any regulation, these medical guidelines were not of much help, and gradually the exploitation started increasing; it went beyond anyone’s control.
The landmark judgment of the Supreme Court of India that has highlighted surrogacy in India was the Baby Manji Yamada v. Union of India, 2008. The Japanese parents got separated just one month before the delivery of the baby. Hence, the surrogate baby was left without citizenship in India due to the absence of stringent laws. The Supreme Court finally granted the baby’s custody to her grandmother. For the first time, the court felt the need for a separate law on surrogacy in India. However, they failed to bring any significant changes in this area.
The Lok Sabha passed the Surrogacy (Regulation) Bill on 24th August 2016. It entirely banned commercial surrogacy. It allows altruistic surrogacy only to heterosexual Indian couples who are married for five years. They can go for surrogacy only once. It prohibited singles, live-in couples, foreigners, and same-sex couples from opting for surrogacy; the Rajya Sabha asked for specific changes in the bill.
After incorporating the changes, the Lok Sabha, on 5th August 2019, the Surrogacy Regulation Bill, 2019. Again on 21st November 2019, the Rajya Sabha adopted a motion to refer the bill to the Selection Committee.
Finally, a reformed version of the draft legislation of 2019, Surrogacy (Regulation) Bill, 2020, was passed by the Union cabinet on 26th February 2020. It includes all the recommendations made by the Rajya Sabha selection Committee.
The latest law allows widows and divorced women to be surrogate mothers. The insurance cover of the surrogate mother has now increased to thirty-six months. The sale and purchase of human embryos and gametes are prohibited. Also, the National and State Surrogacy Boards would be established to regulate the procedure for surrogacy.
Conclusion & Recommendations
In a developing country like India, poverty is a significant concern. Husbands direct their wives to become surrogates as an income-generating option. No doubt every childless couple deserves to have biological children, and if there is a medical procedure for the same, it must be done righteously. We must not exploit anyone. We cannot violate the rights of other human beings for our pleasure.
The law was, finally, passed after an immense struggle. However, there is a long way ahead to tackle this menace. The government must take up initiatives. The priority should be the health of the surrogate mother. Counselling sessions are a must to determine the physical and mental suitability to become a surrogate mother. A uniform law has to be framed on the dosage of synthetic hormones given to women during egg donation procedures. There is a strong need to stop trafficking related to commercial surrogacy. Altruistic surrogacy should be also promoted; timely inspections must be conducted to ensure that things are done properly. There can be a uniform law on adoption so that childless couples can also think of that as an option.
It is a global industry worth billions of dollars based on the exploitation of women’s reproductive labour. The question is, where are we heading? What will be the consequences? It is high time we think about it. If the entire procedure is regulated, it must be done in the best possible way.
“A mother’s womb is a paradise where wonders of life begin, so please do not exploit it and on the other hand a child is born out of love and affection, so please do not commoditise it!”