Surrogacy: An Ethical & Legal issue

The Author is Rounak Sinha and currently pursuing B.A.LLB 2nd year in Faculty of Law,  Marwadi University, Rajkot Gujrat.

Motherhood is every women’s dream. Unfortunately, not all women can conceive due to various reasons. Surrogacy, has emerged as a new level of technology and advancements in science for the reproduction with the usage of womb of a woman to reproduce children for another woman. Of late inability of parents to conceive child through biological means, they take recourse through scientific means. It allowed various section of society to conceive who suffered from the infertility issues. That is why, it is considered as a boon by infertile couples as it has made possible every woman to experience the joy of motherhood.

The case of puttaswamy specifically reiterated that the women’s right of reproductive choice decided in the case of Suchita Srivastava that the reproductive choice of the women is an ingredient of personal liberty under Article 21 of Constitution of India.

Definition of Surrogacy and its types: -

According to Black’s Law Dictionary, “An agreement wherein a woman agrees to be artificially inseminated with the semen of another women’s husband.”
The New Encyclopedia Britannica defines “Surrogate motherhood” as the practice in which a woman bears a child for the couple to produce children in the usual way.
In Medical parlance- “The term surrogacy means using of a substitute i.e. Surrogate mother instead of natural mother.
The ART Bill has defined surrogacy as ‘an arrangement in which a woman agrees to a pregnancy, achieved through assisted through assisted reproductive technology in which neither of the gametes belong to her or to her husband, with the intention to carry it to the term and hand over the child to the person or persons for whom she is acting as a surrogate.

Surrogacy on medical grounds divided into two types: -
1.      Traditional Surrogacy: - In this type of surrogacy, the sperm of the donor is artificially inseminated in the women and the women get pregnant.
2.      Gestational Surrogacy: - By this method, the women get fertilize through IVF (In Vitro Fertilization). Firstly, the egg and sperm of the intended parent is collected. Once the embryo is formed, then it is transfer into the surrogate mother womb with the help of Assisted Reproductive Technique.

Surrogacy can be further divided into two types on the basis of financial compensation-
1.      Altruistic Surrogacy: - “Altruistic Surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative.
2.      Commercial Surrogacy:-  Commercial Surrogacy” means commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother.

The practice and conduct of surrogacy are considered as a noble act as it has made possible every woman to experience the joy of motherhood. But, apart from that, the discussion on surrogacy does involve around the ethical and moral issues.
The main reason/cause behind choosing the topic to consider these issues that are most relevant to present day society and to discuss the multiple legal, social and ethical challenges in conducting the surrogacy. It has been claimed by the certain society that practice and conduct of surrogacy violates the dignity of human life, social justice and equality. It has also raised countless ethical and social questions-

2.1 Inconsistent with Public Policy-

Though there is no fixed definition of public policy but in simple terms public policy means greater good of the society or larger public interest. The fact of motherhood and childhood has been established as a matter of public interest accordingly provided constitutional protection under relevant provisions of Directive Principles of State policy (DPSP) and international conventions namely International Covenant on Economic, Social and Cultural Rights which state that motherhood and childhood must be provided special protection as there is inherent socio-legal or public interest in the same. With these understanding of public interest, it is said that “there are some things that should not be exchanged for money like human beings, criminal justice, marriage rights, citizenship, and certain other forms of human labour for instance sexual and procreational labour.

2.2  Exploitation and Commoditisation of Surrogate mother

The surrogacy industry in India was estimated to be above 500 million dollars. Surrogacy is an arrangement that recognises women as a commodity, providing an "endocrinological vehicle" for performing a "gestational role”. Human life has been considered to be invaluable, but surrogacy commoditises reproduction and treats it as if it were a tradable item. A woman is treated as ‘a reproductive conduit’ where her womb is equated to a commodity and children are equated to ‘pets or products’. Surrogacy is a direct attack on the human dignity of a woman as it treats her as a mere baby carrier who can be bought for a particular price. There have been multiple instances all over the world where surrogacy has been used as a cover for human trafficking activities. Through this arrangement man is meddling with nature and playing god trying to create life. Additionally, if a childless couple wants a child, they can always adopt children. Surrogacy has also been used as an easy way out by career-oriented women who view children as a mere societal status symbol. The Assisted Reproductive Clinics and middlemen in the industry exploit surrogates who are used as ‘baby carriers.
2.3  Commoditisation of Children
A mother is supposed to love their children but the concept of love and affection does not survive in the case of commercial surrogacy. It is evident that the end purpose of surrogacy that a surrogate mother hands over the child to another individual and get a sum of monetary payment. This effectively amounts to commodification and sale of child and equally sale of parental rights as well. It also spoils the basic nature of the most important institution of society i.e family. This is also established by the ruling of the New Jersey Supreme Court in the trailblazer case of Re Baby M Case of New Jersey, the Supreme Court held that commercial surrogacy effectively constitutes as the “Sale of Child”. The Court also observed that it amounts to the sale of child for adoption or taking unfair advantage of a women needing money who might be coerced into giving up their children for the need for money or economic compulsion. It must be recalled that according to Art. 2 (a) of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration”. According to the Council of Europe Convention on adoption, no one shall derive any improper financial or other gain from an activity relating to the adoption of a child. It would be contrary to the dignity of the child, because adoption would become a market. It is due to similar concerns that the court only grants guardianship if it is satisfied that there has been no payment or reward as consideration for adoption. This was reiterated by the Bombay High Court in Eshan Kishar Acharjee v. Harish Chandr Chowdhry.
2.4  Human Trafficking
Surrogacy motherhood is the commodification of the human body. Such commodification in itself violates the dignity of both the surrogate mother and the child. This is a process through which the child is treated as an object to be sold and the surrogate’s womb is up for rent. The surrogate mothers belong to the weaker strata of society and are part of this profession because of necessity. There have been multiple cases where family members have coerced women into being a part of the profession because of lucrative pay. In a developing country, which has a high number of illiterate impoverished people, forced surrogacy is one of the main threats of commercial surrogacy. Force in this context includes not only physical force but also mental compulsion or due to poverty, hunger or the like. Art. 7 of the International Criminal Statutes includes forcible pregnancies as one of the crimes against humanity.
Under Art. 23 every citizen of India is protected against being exploited. This provision of the Indian constitution is extremely wide and is targeting forced labour and trafficking wherever it is found. Exploitation takes place when a woman or child is subjected to the commercial or immoral purposes of some powerful man or group- taking advantage of the natural disability or helplessness of victims
On 5th of August, 2009 the Law Commission of India submitted the 228th Law Commission Report titled “Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy” to the Union minister of Law and Justice, Ministry of Law and Justice, Government of India.

In 2019, The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare, in Lok Sabha July 15, 2019. This bill prohibits commercial surrogacy and allows altruistic surrogacy.
This bill also underlines the purposes for which surrogacy is permitted. As per the Surrogacy (Regulation) Bill, 2019, Surrogacy is permitted when it is: -
(a)    For intending couples who suffer from proven infertility
(b)   Altruistic
(c)    Not for commercial purposes
(d)   Not for producing children for sale, prostitution or other forms of exploitation
(e)    For any condition or diseases specified through regulations.
The offences under the Bill include: -
A)    Undertaking or advertising commercial surrogacy
B)    Exploiting the surrogate mother
C)    Abandoning, exploiting or disowning a surrogate child; and
D)    Selling or importing human embryo or gametes for surrogacy. The Penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill specifies a range of offences and penalties for other contraventions of the provisions of Bill.

Since past, surrogacy has been a method of conceiving a child. This method has blessed many infertile couple and also to those who wish to have a child. As the development in science and technology, it made surrogacy much easier and less expensive (in India), and emerged as a market to fulfill the demands not only of the Indian couples but foreign couples also. As a result, the increasing use of surrogacy has raised legal, social, moral, ethical and religious questions all over the world. On one hand, surrogacy is a boon to the infertile couples but on the other hand it has led the commercialization of this method posing various problems.
The Surrogacy Arrangements Bill, puts a complete ban on Commercial surrogacy commercial to curtail the exploitative practice of “Baby Outsourcing” but it places undue restrictions on the bodily autonomy and reproductive rights. Every woman has a right of self-determination with respect to her body. She has a choice to use her body in whatever way she deems appropriate. No one but a lady should choose what is permissible with relation to her body other than her. Additionally, the courts in this country have taken a pro contract stance with respect to surrogacy through their judgments. This further shows us that the courts are being supportive of commercial surrogacy. That is why, the Union Cabinet, has approved a historic bill for the welfare of women in the country- the Surrogacy (Regulation) Bill, 2020. It allows any “willing” woman to be a surrogate mother and proposes that widows and divorced women can also benefit from its provisions, besides infertile Indian couples.
In the light of legal issues associated with commercialization and financial contract of surrogacy, the first and most fundamental suggestion is the rephrasing the term commercial and replacing it with compensated surrogacy means such surrogacy such surrogacy arrangements providing for reimbursement of health of surrogate mother for undergoing gestation and child birthing and for any sickness related to same and nothing beyond this amount of reasonable cost may be paid to the surrogate mother. Thus, it may be distinguishable from commercial surrogacy arrangements. Also, Compensated Surrogacy is legal in many legal jurisdictions namely UK, Canada etc.
There are certain suggested safeguards recommended by the Government of India, Law commission Report (No. 228, August 2009) to be included in order to better the provisions providing for surrogacy agreement. The commission recommends for inclusion of the provisions in the agreement on securing consent of surrogate mother, her husband and other family members to bear child, reimbursement of all reasonable expenses including medical procedures, allowing medical contingency as abortion regulated under the Medical termination of pregnancy Act, social security measures as life insurance cover for the surrogate mother and child.