PRASHANTI UPADHYAY's Profile and details
Pashanti Upadhyay pursuing LL.M. from Law College Dehradun Uttaranchal University
Sociological, political, moral and legal implications of surrogacy
“Surrogacy contracts alienate a woman from her love for the child and frequently involve exploitation. Surrogacy leads to the weakening of the link between parent and child”. - Elizabeth Anderson
Indian society is considered to be economically feeble, but ethically and traditionally it is very potent. It is a society which boasts of its ideologies and its anxiety for the welfare of all. The question arises, how a country with such an ideology can legalize renting or loaning a womb of a women’s body. Through this article we aim to draw the attention of the readers towards the growing idea of commercializing surrogacy, firstly, we will be presenting the comparative view of both the thoughts, the one that is in favor of legalizing surrogacy and believes in the liberty of individuals, the other which oppose the above on the grounds of morality and ethics. We also aim to enlighten the readers by screening through this article the brighter and the darker side of the commercialization of surrogacy and we will be further justifying, through various political ideologies and social implications that commercializing or selling a womb of a women’s body is against the natural process and each and everything present on this earth naturally are not preordained to be bought and sold by humans. We will be picturising that the trading of body parts of a human being; in case of surrogacy, the womb of a woman can lead to catastrophic effect on the Indian society.
And India, has become the market of surrogacy, contemptible and proficient, we will be critically analyzing the Assisted Reproductive Technologies bill, 2010 that legalize money-making surrogacy in India.
“The labor of bearing a child is more intimately bound up with a women’s identity than other types of labor. The work of pregnancy is long term, complex and involves an emotional and physical bonding between mother and fetus.” - - Margaret Jane Radin and Carole Patemanstress
Commercialization of surrogacy is a contemporary legal issue, as there is a recent development in the ART technology, and thus, the proper laws regarding this issue has to framed as it is a very sensitive issue bearing with many social, legal, moral and political implications. Through this article we indented to bring the attention of the readers, government officials or the public at the large, towards the Assisted Reproductive technology bill, which was proposed in 2010. This bill claims for insuring the medical, social and legal rights of the surrogate mother and the genetic parents . In the projected bill various guidelines are laid down related to the procedures that the ART clinics have to follow. It includes the rights, duties, offences and the penalties the ART clinics, genetic parents, donor and the surrogate mother hold and has to follow. Also, in the last nearly 20 years have seen an exponential growth of infertility clinics that use techniques requiring handling of spermatozoa or the oocyte outside the body, or the use of a surrogate mother. As of today, anyone can open infertility or assisted reproductive technology (ART) clinic; no permission is required to do so. Therefore, it becomes essential to regulate and keep the check on the clinics, so that the services they are providing are ethical.
In the proposed bill, due moral, social and legal concern has been taken by the drafters, but the bill lacks on certain aspects like due compensation to the woman . In the west up to 50 per cent of the total cost goes to the surrogate mother while in India most of the money is appropriated by sperm banks, ART clinics and lawyers. The Assisted Reproductive Technology (Regulation) Bill 2010 has not touched many of the ethical and social issues related to surrogacy and the rights of a woman and a child. It particularly provides for an agreement, legally enforceable where the surrogate mother can receive monetary compensation.
Commercial surrogacy in India, dubbed as the “surrogacy capital of the world”, is projected to become a whopping US$2.3 billion industry by 2012 . In India poverty rate is 32.7%, i.e. this no. of people lives below the International poverty line thus, and such high level of poverty level makes Indian citizens prone to exploitation from the western countries.
The question here arises is that if the Indian government is legalizing renting the women’s womb that why we can’t we legitimize the renting of women’s body i.e. prostitution. Or selling and buying of organs. Transplantation of Human Organ Act, 1994 has banned the sale of human organs, organ loaning , but the legalization of commercial surrogacy as per Assisted Reproductive technology Bill, 2010 is rendering the above act void.
King Solomon had a case to decide where there were two claimants of a baby. The fate of this baby was in the hands of the king, the claimants of the baby were not ready to give up their respective claims on the baby and hence, the king ordered the baby to be separated into two equal halves and give each claimant their shares. The mother on hearing this was shattered and she immediately gave up her claim on the baby. King Solomon gave up the baby to this woman who was the actual mother of the baby. This case which was decided by the King to meet the true ends of Justice also highlights another phenomenon which is the relationship a mother shares with her child and this very special bond especially in the Indian context holds a very vital place.
Giving birth to a baby is not a manufacturing process rather it is the amalgamation of a very special bond which starts to develop when the fetus is in the mother’s womb.
“Surrogacy”, means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate.
According to the ART bill, 2010, estimated data of the infertility rate is 15% of the world. Total fertility rate of India is 3 per woman, whereas, the fertility rate per woman is 2 in United State. Moreover it is to be noted that the rate of infertility in India is due to the lack of proper health care facilities and not because of biological reasons. A country that has fertility rate of 3 per woman and the population of 1,241,491,960 is not in any need of promoting surrogacy.
Adoption V. Surrogacy
It is estimated that there are 160 to 200 million orphans worldwide . To have an idea of the enormity of the numbers compare it with the population of Unites states which is just 300 millions. Also, it is believed that most of the orphans, due to lack of care and affection, divert into criminal activities, which is again the problem that any society or state has to face. There are over 25 million orphans in India. 5,000 children under the age of 5 die every day in India due to preventable causes. More than 60% of women in India are chronically poor. India has the highest child malnutrition rate of the world’s regions.
Indian government, instead of promoting commercialization of surrogacy, should divert its concentration towards the improved health facilities of the millions of women and children. In India, the infertility rate is estimated to be 10% in Indian women 98% have secondary sterility they have been pregnant at least once before but are unable to conceive again. Their problems are due to untreated disease, poor health care practices or malnutrition. Most of these can be avoided through effective antenatal and postnatal care and through good primary health care with basic facilities to diagnose and treat infertility.
Millions of children are living without love, affection and proper care all over the world, thus any government or authority instead of encouraging the complex process of surrogating, which can render the health of the surrogate mother, the child in risk, as bearing the child is a very complex and a risky procedure. Also the Mother Mortality rate in India is 253.8 , which is very high as compared to the first world nations. In Italy it is only 3.9, whereas in US 16.6 . Thus, as per the Indian medical conditions, there is a high threat implicated to the woman’s health, who is bearing a child.
Indian government, instead of catering the needs of the western society for the need of the child, concentrates its attention towards requirements of its citizens.
Surrogacy can be opposed on various grounds one such reason is that surrogacy is exploitative. Outsourcing surrogacy to India further degrades the women and takes advantage of their poverty and lack of opportunities. The status of women in India is already brow beaten and critics of commercial surrogacy put forward a common objection that gestational labor is different from other types of labor.
A divide of the feminists believes that surrogacy brings with it a freedom of the woman to choose and thus promotes gender equality. Satz strikes on this contention,” commercial surrogacy allows women’s labor to be used and controlled by others and reinforces stereotypes about women, e.g.:- pregnancy contracts give buyers substantial control rights over women’s bodies, right to determine what the woman eats, drinks, reads, etc.” This opinion of Satz leaves us on another important question: – Are woman baby-machines?
Another important political connotation which is closely attached to surrogacy is that, what are the moral limits of market i.e. Are there something’s in this world which money can’t buy or everything is up for sale; only one should be capable of paying?
“There are, in a civilized society, some things that money cannot buy.”
Treating children as commodities degrades them by using them as instruments of profit rather than cherishing them as persons worthy of love and care. Contract pregnancy also degrades women by treating their bodies as factories and by paying them not to bond with the children they bear.
Elizabeth Anderson advances a compelling version of this argument. “By requiring the surrogate mother to repress whatever parental love she feels for the child,” Anderson writes surrogacy contracts “convert women’s labor into a form of alienated labor.” The surrogate’s labor is alienated “because she must divert it from the end which the social practices of pregnancy rightly promote—an emotional bond with her child.” Commercial surrogacy challenges the conventional assumptions of maternal bonding which is based on the concept of natural and instinctive link between the mother and her fetus/child. Recently researchers have contested this assumption and argued that most surrogate mothers do not bond with the babies they relinquish to the social parents. The detachment has been measured by the success rate of relinquishment, percentage of surrogates reporting satisfaction with the process and evidence of no psychological problems as a result of relinquishment. I draw on my findings on gestational surrogacy in India to contend that maternal bonding is effectively an emotion integral to the physiological process of child birth and is deeply rooted in the cultural context of motherhood.
In her critique of commercial surrogacy, for example, Elizabeth Anderson avoids the suggestion that the norms of the market are in principle unattractive or anti- egalitarian, but focuses on where these norms legitimately apply. ’To say that something is properly regarded as a commodity is to claim that the norms of the market are appropriate for regulating its production, exchange and enjoyment’: this suggests nothing particularly disreputable in market norms. The problem, for Anderson, arises when these are applied to the way we allocate and understand parental rights and responsibilities or the way we treat women’s reproductive labor, for when this happens, ‘children are reduced from objects of love to objects of use’ and women ‘from subjects of respect and consideration to objects of use’.
Political philosophers offer two objections to the commoditization of certain transactions. The first focuses on coercion; exchanges that are driven by severe inequality, ignorance, or dire economic necessity are problematic. The second objection focuses on corruption and holds that the market has a degrading effect on certain goods and practices. As the Baby M case unfolded, both objections were aimed at surrogacy, effectively framing the transactions as illicit commoditization. Opponents claimed that surrogacy unfairly exploited poor women who unwillingly entered contracts that they would come to regret. Critics also claimed that surrogacy degraded children and women by treating children as commodities to be exchanged for profit and women’s bodies as childbearing factories; the arrangements also degraded the mother–child relationship by paying women not to bond with their children.
Surrogacy arrangements were not completely unfamiliar to lawmakers or to the public in 1986, when the Baby M story first attracted media attention. In the early 1980s, a few courts had addressed whether surrogacy contracts were enforceable, and in 1986 a bill regulating (but allowing) the enforcement of these novel arrangements was under consideration in the New York legislature. Surrogacy had also received some media and academic attention. But the Baby M case—a dramatic and emotional legal battle between a housewife who had dropped out of high school and a couple with graduate degrees and professional careers who sought to have a child with her assistance—focused national attention. Many argue that surrogate arrangements depersonalize reproduction and create a separation of genetic, gestational and social parenthood. It is also argued that the child is conceived not for their own sakes but for another benefit.
What is the degree of stress on the couple and on the surrogate mother? Can anyone predict the intensity of emotions attached to that baby?
What are the adverse psychological effects on the child when it is separated in his early infancy from the mother giving birth? What identity crisis might ensue a? Will there be desire on the part of the child to know his gestational father or mother?
Will surrogate arrangements be used only for infertile couples or even for same sex couple or just for the sake convenience of the couple who want the child but are not ready to bear pains for that?
What happens when the child is born handicapped and no one wants it? Should the surrogate and the couple be unknown to each other? Should the child be told or there should be total confidentiality?
What if wife’s sister donates the eggs and the husband’s brother donates the sperms and the fertilization in vitro is carried out and subsequently it is implanted into the wife’s uterus?
When after the multiple implantation the time comes to selective abortion, what criteria should be applied and which fetus is to be aborted?Will there be sex selective abortion?
The ends do not justify means. In the market of reproduction it is seen that the sperms and the eggs are sold and wombs are rented. The use of technology to bear a child by such means is contrary to the unity of marriage and the dignity of procreation of human being.
By passing the natural method of conception, fertilizing more embryos than needed, discarding excess embryos, unnatural environment for embryos, freezing them and destroying them in research are the issues involved in misuse of technology. If during the time in which the embryos are in storage if the couple divorces what is to be done with it and by whom? The religious concepts believe that life begins of at conception; it may amount to abortion which is contrary to both law and ethics. Since more embryos than required are fertilized in the lab, the spare embryos are frozen. In the process some of them are killed. The remaining embryos are human lives that, given a chance, would develop in to a man or women. They are used even for experimentation which can be fatal to them. Donation of sperms or ova involves separation of biological and social roles of parenthood and is equivalent to adoption. In this view there needs to be change into the adoption laws. Surrogacy contracts reduce the embryos/children to the objects of barter by putting a price tag in them which is immoral and illegal as well.
“You say that you gave me everything and I should be grateful. But I am the product that was sold. You say that you wanted me so much that you bought me. But I am the product that was sold. I am the product that was sold.”
In a society, no human can live detached, each person is related to the other. Morality is all about the idea of relationship that is shared between persons, and we act immorally when we harm others. According to Emannuel Kant , a human being is end in himself, he cannot be used as a means to achieve the end, if a human is used as a means then the act is immoral. Any principle would be considered as moral when it can be applied universally. Hence if surrogacy harms those relationships which contribute to our flourishing as human persons then it must be considered morally wrong. In the whole idea of surrogacy, the surrogate mother is used as a means to achieve the end; that is the desire to bear the baby of the infertile couple which accordingly is the immoral act. Also, parents seek surrogacy as a means of strengthening their own relationship through carrying out the role of parents. If they do not, then it seems to me we return to the question of whether the child is seen as a means to an end.
Another problem is raised when the ovum and the sperm is both supplied by the parents, and the surrogate role is limited to the period of gestation, this relationship between the birth mother and the child cannot be viewed lightly, this relationship is important as the genetic relationship as argued by many feminists. If so, then the issue of parenthood is distorted. It is the importance of the various relationships involved in surrogacy and the harm which is done to the persons whose relationships are made so indefinite that is of moral importance here . Also, an important consideration is that the surrogate who is the third party between the relation of husband and wife constitutes the destructive element which erodes the intimacy which exists in an intimated, exclusive and committed relation.
New reproductive technology claim to help human beings through creative interventions that reduce suffering and have the potential to transform the society. The commercialization of surrogacy however creates several social conflicts rather than resolving a few. It generates the family pressure on pure women to offer their wombs for a price. In the other part in the world the debate is focus on the ethics of surrogacy rather than on the economic advantage of any particular region. On the other hand the economic advantage is the main criteria behind going for surrogacy. Majority of the women becoming surrogates are extremely vulnerable due to poverty, lack of financial resources, low educational levels. For them the financial gain is the key factor. This makes their economic exploitation much easier for the agents for commissioning parents.
The surrogates often face the dilemma that being a surrogates is socially unacceptable when the frankly accept monetary consideration. So rather than tell their neighbors that they gave away their child, they tell them that the baby died.
As the surrogacy involves implantation of multiple fetuses, the unwanted fetus is aborted during the course of development. The misuse of PNDT in the process can eliminate the female fetus resulting into imbalance of sex ratio in the country.
There are cases where the surrogate mothers have refused to part with the baby. In other cases the commissioning parents have refused to accept the child with the deformity. Baby Manji’s case as there was divorce between the commissioning couple the problem arose as to the custody of the new born baby. In many cases, the caesarean delivery needs to be performed. For such surgery the consent of surrogate mother is to be obtained. Her refusal may imperil the life of the child. Confusion also exists where a surrogate mother fails to take standard care and precaution during pregnancy as a result of which harm is caused to the fetus. The high aspirations of the intending parents are ruined because of this.
Surrogacy can also affect the children’s perception of the values and integrity of their family. Secrecy and anonymity create a negative environment that affects human relations within and outside families. It also involves the issues of children’s right to information about the identity of their parents. Secrecy and anonymity are routed in the social value of the primacy of ‘blood relations’. The present practices push such children into a search of identity, a sense of shame and anger against their social parents an open
Cost involved in surrogacy: The relative costs involved in the surrogacy process are probably the largest incentive for foreigners to travel to India. A commissioning party can expect to pay $14,000 to $18,000 to a gestational surrogate in the United States Total costs for contracting with a surrogate mother in the United States fluctuates between $59,000 and $80,000. India’s current costs are markedly lower than American standards.
In the country where annual per capita income is $500, fees for surrogates are reported to range anywhere from $2,500 to $7,000.
Hence, in the conclusion we would like to say that the people of poor country got the very lucrative business of earning easy money by loaning their organ, thus, when people are having an opportunity of becoming affluent, without hard labor, then the question arises, why people, would like to work and earn money, when they have an trouble-free source to earn it? The result would be disastrous, as we are giving a wind to an industry in which we are endorsing the hiring of wombs and we are measuring the baby in terms of money. Thus, question that comes in our mind does humans have enough power that now, they can now even encroach the internal organs of human body, as they have already impinged the nature (land, water, animals etc.) for the creation of money and economic boon. Does, there is no regulating authority which can ensure the limits of human conduct.
No doubt, surrogacy is the process, wherein, a woman can effortlessly earn a ransom amount of money, and can fulfill all her needs and desires. But, is it ethical, to do so? Prostitution, selling of organs, robbery, theft, gambling, smuggling and in various other acts, a person can make a lot of money, but does any government authority, legalize it? Also it is feared that if surrogate motherhood becomes a legal ‘business’ then soon educated working women will start hiring wombs to prevent a break in their career! To take an extreme scenario, baby ‘factories’ could spring up.
Every act cannot be counted in terms of money; the moral and ethical issues are involved and well thought-out while the commission of every act, then isn’t it is eccentric, that our legislature is ignoring moral and ethical aspects, while drafting the ART bill: which indirectly commercializes surrogacy. We aim that our legislature passes a law which caters the need of the public at large and which is beneficial for all. There should be no law, which degrades the status of any gender. At the end, a good law is the one, which apart from economical and financial issues caters the ethical and moral sides of the society also.
Commercial surrogacy i.e. buying and selling of the womb of the women’s body, is according to us, an immoral act, the legalizing of commercial surrogacy should not be promoted. Though this procedure is a very effortless method to make money, but its promotion and legalization would lead India to be one of the hubs of the foreign developed nations of surrogacy. Poor, destitute Indian women would become the means for bearing the baby, and exploitation by the rich, powerful infertile couple. In India, as of now, there is no need to legalize and promote commercial surrogacy, as the infertility rate of the country is not very, also, the country has lot more needs to cater, such as, paucity, malnutrition, a country which is itself so chronologically so poor, first require to improve the condition of its own citizens rather than to gratify the requirements of the infertile couple of the foreign countries and make a provision for its citizens for trouble-free source of earning money; which would affect the economy also.