[Polity] Surrogate Mothers: Meaning, Arguments in favor and against, legal framework in India

polity26 Comments

  1. What is Surrogate reproduction?
  2. What is the problem in Surrogacy?
  3. What is Assisted Reproductive Technology (Regulation) Bill, 2010?
  4. Arguments for Essay/ Group discussion (GD)
  5. Anti-Surrogacy
  6. Pro-Surrogacy Arguments

What is Surrogate reproduction?

  • Husband has healthy sperms and Wife has healthy eggs
  • but Wife cannot carry a baby to its full term. For example, Aamir Khan’s wife Kiran Rao suffered a miscarriage earlier and had uterine medical problems so the couple opted for surrogacy.
  • In surrogacy: Wife’s egg is fertilized with husband’s sperm through in-vitro fertilization (IVF) and an embryo is created. (In Vitro=outside body. In-vivo=inside body.)
  • This embryo is implanted in the womb of a “surrogate mother”, she will carry It for nine months and deliver the baby.
  • Baby thus produced, will have genetic make-up of the husband and wife (and not that of surrogate mother.)
  • The cost for a surrogate and the entire procedure in India is one-third that in North America or Europe, which makes India the favourite destination of the reproductive tourist industry.
  • Besides, Surrogacy is banned in France, Germany, Italy, Spain, Japan and Switzerland.
  • Commercial surrogacy is banned in New York and several other states in America, the UK, Canada, South Africa and Australia. These countries allow what is called altruistic surrogacy. (i.e. cannot be done for money)

What is the problem in Surrogacy?

  • Indian surrogate mothers are mainly from poor backgrounds or driven by circumstances, including unemployment, domestic distress, etc,
  • They offer their wombs on commercial terms.
  • Once the baby is born and delivered, the surrogate mother is forgotten, the implications on her health and mind are of no concern.
  • It is not the health and well-being of the surrogate, but the safe delivery of the baby that is of prime concern.
  • Recently, a surrogate mother in Ahmedabad died because of medical complication.
  • At present, in India, there is no separate law to regulate the Egg donation and surrogacy clinics. There are regulated by Indian Council of Medical Research (ICMR) guidelines. There is no centralized database of surrogate clinics or surrogate mothers.
  • Problems may arise if something goes wrong, for example baby is born with some defects and the ‘biological parents’ refuse to accept him/her, then Who is legally required to keep the child? Who is the mother? Who is the father? What rights does each possess, including future property disputes? There must a law to clearly provide the answers.

What is Assisted Reproductive Technology (Regulation) Bill, 2010?

  • This bill aims to cover the assisted reproduction clinics, gamete banks and surrogacy.
  • It details the rights and duties of all the parties involved in surrogacy and other assisted reproductive technologies.
  • It provides for advisory and regulatory bodies at central and state levels.
  • Regulators will be able to receive and evaluate complaints and pass them on to a magistrate for trial, if necessary.
  • But it is still a “bill” and not a “law”.

Arguments for Essay/ Group discussion (GD)

Anti-Surrogacy

  1. Because of (relatively) cheap Surrogacy in India, less orphans are getting adopted by well to do families abroad.
  2. Isn’t it self-indulgent to demand a “copy” of oneself, when so many orphans stand in need of loving homes?
  3. The physical stress, risks, emotional and physical trauma to the surrogate mother, and then the abrupt separation from the baby carried in the womb for nine months are immaterial.
  4. (pro) Surrogate mother is asserting her independent agency to make choices to better her life and those of her family. (anti) But what does “choice” mean when she did not choose to be poor, she did not choose to be unemployed, she did not choose to live in a country where children die of starvation?
  5. It is inhumane to use a woman’s social and economic vulnerability to commercially exploit her womb as a commodity to make handsome profits.
  6. The use of surrogacy, especially the wide use, might lead to a cheapening of our idea of what it is to be a person, to a decline in self-respect. It might cause future generations, for example, to think of the human embryo or fetus as interchangeable parts, reproduction as a mechanical process, wombs as organs for rent, etc. The implication is that thinking of ourselves in this fashion would bring serious negative consequences – the “designer baby syndrome” for example, pick DNA of Sachin for Stamina, DNA of Bacchan for Height, Hrithik Roshan for white skin and thus assemble an embryo like assembling a mobile phone or computer.

Pro-Surrogacy Arguments

  1. Surrogate mother is asserting her independent agency to make choices to better her life and those of her family
  2. The argument given that less orphans are getting adopted- well there is no reason why the infertile couple should have a special duty to adopt needy children; those with their “own” could also adopt others If their financial situation permits.
  3. If Government  makes a law to ban surrogacy in India, then market will go underground and the surrogate mothers would be exploited even further, because they cannot approach the law enforcement agencies. So, surrogacy should not be banned, it should be regulated.

You are welcome to add more ‘pro’ and ‘anti’ arguments in the comments.
For earlier articles on Polity, visit mrunal.org/polity
Ref

  1. http://moses.creighton.edu/csrs/news/S92-1.html
  2. http://www.indianexpress.com/news/everyone-forgets-the-surrogate/975372/0

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So far 26 Comments posted

  1. Satya

    Surrogacy,ofcourse, may bring money for poor but it’s a very dangerous to their health.Even,as we know,according to Health sciences there should be a gap of at least 3 years between two children.In recent news, the surrogacy mainly concentrated in Anand,Gujarat.The Poor, though they are provided with medical facilities and insurance,are getting ready with in 2 or 3 months after birth for money.There should be a law that should cover all the loopholes of this otherwise it should be banned in our country.

  2. bhaskar

    will you please explain this with example “Surrogate mother is asserting her independent agency to make choices to better her life and those of her family”

  3. The President

    Can union govt make law on health which is a State subject?

    1. Partho

      yes, Regulation is in concurent list.

  4. The President

    Entry no ?

  5. A.G

    Yes Mrunal.

    I strongly agree with u about the enacting a well-defined law. I am not against surrogacy as you already said it can’t be banned completely, so Why don’t we get it regulated.
    But now it is on the track of making itself a business, due to lack of effective regulation by the Govt.A surrogate mother might be look-after by the concerned parents during her three trimesters, but She is neglected as soon as she delivers the baby. The post-pregnancy health of surrogate mothers is a vulnerable issue which needs attention to be paid.
    Moreover, due to lack of regulating authorities, the surrogate mother prepare herself merely after 2-4 months for the next pregnancy, neglecting the ill-effects of such practices on their health(just 4 the sake of money).
    The law (must be enacted), will definitely enforce the registration of such clinics, such doctors, such mothers ; guidelines and policy for each stakeholder with a clear definition of SURROGACY.

    My point is that the health of surrogate (pre and post pregnancy) should be paid a vital attention, because during the whole scenario they suffers a lot.

    @ Mrunal Pl correct me if I am wrong somewhere.

  6. Swagat

    Another analogy that can be drawn is from the field of Organ donation. The current Human Organ Transplantation Act (HOTA), does not permit organ donations for commercial reasons and has led to breeding of illegal/coercive transplants across the nation with no legal rights to such donors who are not genuine donors (blood relatives, altruistic donors) per the law.

    In this sense, it is imperative that the surrogacy field be regulated, but banning or limiting it to altruistic cases will only worsen the situation and act to the detriment of vulnerable sections of women.

  7. sumiran kumar

    Can anyone please explain following lines
    (anti) But what does “choice” mean when she did not choose to be poor, she did not choose to be unemployed, she did not choose to live in a country where children die of starvation?

    1. Commander Gilmour

      It means the overall macro-economic situation where opportunities or means to better one’s life is not available. The poor in a badly governed polity are subjected to vicious cycle of poverty.(low health-low education-low income cycle. Surrogacy will actually not take the poor anywhere if they don’t have stable sources of income(so lesser choices.). Payments received in such cases are short lived and addresses the symptom of poverty rather than address its cause.So the choice maximization argument is a myth.

  8. santy

    the argument that the wat if baby is borne defective ….. the chances are very rare in a world in which we r living; ther r lot of technologies like USG etc to detect any malformations during the pregnancy priod ; if found defective can be terminated according to MTP ACT…

    1. Nirmal

      IT IS IMPORTANT TO NOT THAT MTP ACT ONLY APPLIES IN CERTAIN CASES WHICH ARE UNAVOIDABLE LIKE MOTHER HEALTH COMPLICATIONS.AND WHAT DOES THE WORD ‘RARE’ MEANS TO THAT ‘RARE’ CHILD (WHO IN CASE MAY NOT BE ACCEPTED BY EITHER PARTY)

      1. Arun

        Any woman under 20wks gestation can demand for MTP…It is her right…there are no specific ‘cases’

    2. Nirmal

      AND WILL TECHNOLOGY BE NOT USED FOR SEX DETERMINATION

  9. tb

    pro surrogacy:
    1. Fecundity of humans is much higher than the fertility rates so the real health issues arise from poor institutional facilities during delivery and post natal care not from the process of surrogacy itself.
    2. We would be discouraging the medical tourism industry.
    3. Right to avail benifits of superior medical technology at disposal. If one can accept a kidney for life by paying an amount there should be no ethical issues in surrogacy. it should be taken in a medical perspective.
    4. The vicious cycle of poverty needs a strong intervention for being able to break the cycle. social security nets or informal sector jobs do not provide that.. surrogacy might. (read an article long back about how a surrogate mother was keen on further service while the clinic did not allow more than three surrogacies per head. she told the correspondent she used the money for debt repayment and a new house)
    5. Regulation would work not banning as it would lead to spawning of illegal practices just as pre natal determination of sex has not been arrested despite legislation.
    6. Altruistic surrogacies again can be used as a guise for commercial services.
    7. Adoption cannot be enforced when medical means to biological parenthood are available.
    8. Plight of the poors in india is deeper than surrogacy and goes from organ donation,human trafficking, child labour to deaths due to cold,hunger,heat waves and frequent suicides. one can show real empathy by checking poverty itself rather than its manifestations.

    Anti surrogacy:
    1. commercialization of motherhood.
    2. emotional trauma for the surrogate mother
    3. chances of social ostracisation of surrogate mothers
    4. poor health care both pre natal and post natal as well as unsafe deliveries
    5. other points already covered.

    1. Nirmal

      1.ACCORDING TO YOUR FIRST POINT IN PRO SURROGACY ARGUMENTS,YOU HAVE ASSUMED THAT HEALTH HAZARDS ARE DUE TO ENVIORNMENT( CARE,MEDICAL TREATMENT) BUT A LARGE SHARE IS DUE TO EMOTIONAL TRAUMA A WOMEN UNDERGOES AND REPEATATIVE DELIVERIES (AS IT IS NOT A ONE TIME AFFAIR),NO MATTER HOW WELL EXTERNAL CARE IS.

      2.SECOND ARGUMENT CAN BE ENCOUNTERED BY SEEKING ANSWERS ON THE FOLLOWING QUESTIONS
      QUESTION 1:WILL MEDICAL TOURISM NOT PROMOTE TREND OF SERROGACY ?
      QUESTIONS 2:WILL IT NOT HELP IN LOWERING THE DIGNITY OF INDIAN WOMEN?
      QUESTION 3:IS THERE NO ANY OTHER WAY TO PROMOTE MEDICAL TOURISM ETHICALLY( REMEMBER IT IS NOT BY CHOICE BUT BY COMPULSION OF POVERTY)?
      QUESTION4: IS IT NOT A PARADOX THAT WE WILL WE GROWING ECONOMICALLY BUT NOT SOCIALLY?

      3.IT MUST BE EMPHASIZED THAT LIVER DONATION ARGUMENT IS FLAWED IN RESPECT THAT IT IS A MATTER OF LIFE & DEATH AND THERE IS NO OTHER TECHNOLOGY AVAILABLE TO SYNTHESIZE ARTIFICIAL LIVER BUT THERE ARE OTHER WAY OTHER THAN SURROGACY SUCH AS ADOPTION (WHERE BOTH PARTIES BENEFIT UNLIKE SURROGACY!)

      4.

    2. Nirmal

      REST ARGUMENTS I WILL BE GIVING LATER

  10. ArchanaVedantam

    I do not feel designer baby syndrome as a negative consequence ,if it is done with certain limitations…because it helps for producing “Better Children” with all needed characteristics…

    I also feel Being a surrogate mother is a personal choice & she has every right to choose it.The Government duty must be to educate such women about all pro’s & con’s of it.All complications before & after delivery like Post-Partum Depression etc must be taken care of by the genitical parents of that child & it must be the duty of the Doctor to check the potentiality & compatibility of the surrogate mother after all required tests are done before choosing her as surrogate.Any exploitation must be avoided & followed by a severe Punishment…

    1. Nirmal

      I JUST WANT TO COUNTER ARGUMENT YOU BY SAYING: NATURE KNOWS THE BEST!.

      IT WILL DIASTROUS TO PLAY WITH HUMAN GENETICS AS IT HAS TAKEN A MILLION YEARS OF EVOLUTION FOR US TO BE HERE AND WE ARE TRYING TO CHANGE IT BY A BLINK OF EYE.AND DOES NOT IT UNETHICAL TO CUSTOMIZE ANY HUMAN BABY WITHOUT HIS/HER CONSENT AND WHAT DOES ‘BETTER’ MEAN IF WE DON’T KNOW WEATHER IT WILL WORK OR NOT.

      1. angaarchand

        Kindly don’t comment in caps .

    2. Amruth

      I do AGREE WITH NIRMAL how will you know that those characters will express and you do have loads of cons regarding that what do you mean by better breed are you after any cattle farming so you have to get better yeild from your child… sorry mate just change your way of thinking no offence just advising you.

      Thank you,
      Amruth.

  11. saravanan

    Pro surrogacy; As the mother who surrogates her womb may be in distress regarding her inability to provide food or health need to her own child,she ultimately landup in these kind practices rather than indulging in illegitimate way of making money which socially make many orphans.proper regulation and redressal mechanism with counselling for mothers make this viable.

  12. John AbRaham Lincoln

    pro surrogacy : 1.The biggest enemy for poor people in our country is poverty and everything else takes the sacond place , u have seen them pulling rickshaw in scorching sun , some illegaly selling their babies , some 10-12 year old run away to from their home in search of work ( with a significant probability of ending up as a criminal bcause of lack of education etc)
    2. emotional trauma: yes that is the point poor people specially the woman in our country feel emotional trauma everyday (insult from society and husband , poor working condition , lack of food and nutrition, lack of other facilities)

    I believe if proper care is taken (both before and after the delivery) then there is no harm in this practice of surrogate mother . Woman according to her wish can volunteer for this.Ans we also need to consider the happiness it will provide to the couple who really wanted to have a baby of their own .
    and for people who are saying nature knows best and all …i believe that nature created (for everyone plants n animals) the basic platform to run our lives … but if we develop something for our future and start using it without harming the nature then there is nothing wrong…… nature gave us mouth, ear and air (as a medium) to talk but then why we discovered telephone , mobile and email?

  13. Himanshu Dhumash

    Concept of Surrogacy is not new to the world. In early times too, though heavily skewed towards patriarchal principles and men-centric, surrogacy existed. Surrogates were heavily rewarded for making the king’s kin running and adequately addressing health concerns. The only difference in present day surrogacy and the one existed in those times is that commercialization was not there and interests of the surrogates were preserved and looked after. The ART & related industry rose to a $3bn mark which itself exemplifies the degree to which surrogacy has been adopted in modern civilizations. Concerns stated above are true to the very nature of the pregnancy being adopted by various surrogates and the factors, mainly economic, driving surrogates to opt for such pregnancies overlooking their health aspects and commissioning parents to exploit them to the fullest. An act regulating, and surely not banning, ART and related services to serve dual purpose of making infertile prosperous and surrogates to give monetary as well as ethical satisfaction to fill someone’s womb and giving them the pleasure of parentage must go a long way. It is necessary to ponder upon various pros and cons and come out with sufficient legal safeguards to have a healthy surrogacy environment in our country. To simply put a ban on this practice would make the it go underground which would do more ill. Lawmaker, along with the field experts, must immediately take this under legal and regulatory ambit.

  14. Manny

    India and Thailand are one of the cheapest countries for the surrogate motherhood. With great hope and enthusiasm we went to the Thai clinic. There, we spent a lot of money, and even after 4 attempts we did not reach positive result. Doctors, of course, explained it with the specifics of such procedure, organism’s and embryo’s peculiarities and so on and so on. But a fat lot of good that will do us! We spent all our savings and went home without child. I want to say a few words concerning general impression regarding Thai clinic. In general, it could be seen rather weak organization of work, surrogate mothers are not checked as must be and their attitude towards the role they perform is rather specific and negative. They do not feel responsibility and care for the child they carry. All the time, we were accompanied by a feeling of uncertainty towards doctor’s actions, felt fear if all goes as it should be and if they really conduct real embryo transfer… In a word, Thailand was a horror for us. We spent all our money, had no result but only sense of despair and distrust of clinics for human reproduction. Returning home, during about a year we renovated our psychological condition and raised money for the next attempt. We also tried our luck in India. India is an ideal variant in terms of price. But there the matter dropped! In the Akanksha Infertility Clinic we even did not receive a contract where there would be spelled out all the rights and obligations of the parties, and health condition of surrogate mother did not meet accepted standards and norms. During the program, Indian surrogate mothers live in unsanitary conditions and do not care about the child inside them. In India, we could not receive even slightest guarantee that our baby will be healthy and without any deviations. And finally we found Ukrainian reproductive centre. The price pleasantly surprised us – we paid 30 thousand euros for the surrogacy program. But, it is important to note, this price included accommodation, meals, transfers, meeting at the airport and all medical procedures. And not a penny more! Everything was done completely legally and without nerves, negative emotions and bribes. We left Ukraine at the end of the program with no problems and did all the paperwork for the child easily. Today we are happy parents!

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