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

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”.

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