SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
Abstract
Nature has bestowed the beautiful capacity to procreate a life within women and every
woman cherishes the experience of motherhood. Unfortunately, some women due to
certain physiological conditions cannot give birth to their own off-spring. The desire for
motherhood leads them to search for alternative solutions, and surrogacy presents itself as
the most viable alternative. Surrogacy is a method of reproduction whereby a woman
agrees to become pregnant and deliver a child for a contracted party. Surrogacy has
established itself as a reliable way for the infertile family to have a baby. Surrogacy also
recognized by the guidelines provided by the Indian Council of Medical Research in
2005, which incorporates that surrogacy as a mechanism is used to help the people who
cannot have children in a natural way. In recent years, sharp growth in surrogacy in the
world has drawn much attention and has raised several Human Rights concerns and
Rights of Child and Surrogate Mother. Globally, it is estimated that 15 percent of couples
around the world are infertile, which implies that infertility is one of the most highly
prevalent medical problems. The main causes of women choose to be surrogate mothers
are poverty and kind human being, and its result in physical and mental effects to the
surrogate mother. Surrogacy is becoming a growing business in various Countries to earn
more money in order to overcome their hardship. Surrogacy presents particularly
complex questions for human rights law and Legal Framework of the countries. This
presents a critical analysis of the current regulation of surrogacy via domestic law in
India and International law in the form of the UN Convention on the Rights of the Child.
In Current situation, unregulated surrogacy leads to gross violation of Human Rights. In
India, on average, most surrogate mothers are paid in installments over a period of 9
months. If they are unable to conceive they are often not paid at all and sometimes they
must forfeit a portion of their fee if they miscarry (Insight, 2006). However, apart from
moral and Ethical disagreement on the issue of surrogacy, there are gaps in the legislation
sometimes making the surrogate mothers the target of blackmail and crime.
Keywords – Surrogacy, Human rights, Laws, Child, Motherhood, Rights.
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
Introduction
In 21st Century due to Increasing globalisation and advances in artificial reproductive
techniques have opened up a whole new range of possibilities for infertile couples across
the globe. Developed and other developing Nations are framing different Surrogacy law.
Filled with possibilities, Different legal and Ethical issues are constraints. Although
surrogacy appears to have been practiced throughout history across a diverse range of
cultural groups it has only recently emerged as a significant social problem, posing legal,
ethical, social and psychological dilemmas.1
With the Developments in the medical Science, legislative change and shifts in Social
practices have combined to make surrogacy potentially a more acceptable form in present
outline of family creation for more infertile and involuntary childless. Fears of
exploitation and breach of autonomy have sprung from the current situation, where there
is no international regulation of surrogacy agreements - only a web of conflicting national
laws that generates loopholes and removes safeguards for both the surrogate and
commissioning couple. This paper argues the need for international laws, National Laws,
and regulations as the only way to resolve both the ethical and legal issues around
commercial surrogacy which leads t grave violation of human Rights.
When we analyse various definitions of surrogacy as given by different authorities, each
one of them gives a different idea based on its nature or type.
American Law Report2 defines surrogacy as a contract in the following lines:
“..a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to
conceive a child through artificial insemination with the sperm of the natural father, to
bear and deliver the child to the natural father, and to terminate all of her parental rights
subsequent to the child’s birth.”3
Additionally, the Black’s Law Dictionary4 categorizes Surrogacy into two classes:
traditional and gestational surrogacy. It may be commercial or altruistic depending upon
1
Eric Blyth , Children's Welfare, Surrogacy and Social Work , The British Journal of Social Work, Vol. 23,
No. 3, pp. 259-275 (JUNE 1993)
2
In Re Baby M, (1988) N.J.77 A.L.R.4th 1.
3
Smita Chandra, Surrogacy & India, (Jan. 18, 2013), http://ssrn.com/abstract=1762401
4
Jyoti Bhakare, Surrogacy- A Reality Eclipsed by Ethical, Social, Legal Issues-Indian Perspectives, 2
INDIAN JOURNAL OF LAW & JUSTICE 80 (2011) [hereinafter Surrogacy-A Reality Eclipsed by
Ethical, Social, Legal Issues-Indian Perspective]
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
whether the surrogate received financial reward for her pregnancy or relinquishment of
the chi
Looking at the Indian scenario, the Indian Council for Medical Research 5 defines
‘Assistive Reproductive Technology (ART)’ as: “For the purpose of these guidelines,
ART would be taken to encompass all techniques that attempt to obtain a pregnancy by
manipulating the sperm or/and oocyte outside the body, and transferring the gamete or
embryo into the uterus.”
The Supreme Court of India6 has defined surrogacy as: “a method of reproduction,
whereby a woman agrees to become pregnant for the purpose of gestating and giving
birth to a child she will not raise but hand over to a contracting party.”
Surrogacy is presented as a method of medically assisted reproduction among others, a
treatment for infertility. It is often depicted as a generous altruistic action meant to help
couples who cannot naturally have children, to offer them the joy of parenting. 7 In
surrogate-mother contracts or arrangements, a woman agrees to undergo a pregnancy for
a couple and to relinquish the child to them at birth. The ovum may be that of the woman
who gives birth to the child, commissioning the pregnancy or a donor other than the birth
mother may come from the husband of the woman commissioning the pregnancy to be
donated.8
Many countries of Europe have realized the dangers of surrogacy agreements and, in
pursuit of the best interest of the child, enacted legislation to ban or strictly regulate
surrogacy. Germany, Austria, France, Switzerland, Sweden, Norway, Italy and Bulgaria
completely prohibit all surrogacy agreements9. In surrogacy, the woman rents her body.
In surrogacy, the child is treated as a commodity, the object of a legal agreement. The
aim of surrogacy is to fulfill the desire of adults, to enable foreign parents to satisfy their
5
Indian Council Med. Res. National Guidelines for Accreditation, Supervision & Regulation of ART
Clinics in India, (Dec. 3, 2013), http://icmr.nic.in/art/art_clinics.htm. [hereinafter National Guidelines for
Accreditation, Supervision & Regulation of ART Clinics in India.
6
Baby Manji, supra note 2.
7
http://icolf.org/surrogate-motherhood-a-violation-of-human-rights/(Last Accessed – 26 Dec, 2016)
8
Surrogacy: For Love but Not for Money? Author(s): Sharyn Roach Anleu Source: Gender and Society,
Vol. 6, No. 1 (Mar., 1992), pp. 30-48 Published by: Sage Publications, Inc.
9
European Parliament, Policy Department, Recognition of parental responsibility: biological parenthood v.
legal parenthood, i.e. mutual recognition of surrogacy agreements: What is the current situation in the MS?
Need for EU action? PE 432-738, 2010
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
wish for a child at any price.10 In this paper, Authors tries to analyze the various critical
issues related to Surrogacy in India.
Legal Perspective of Surrogacy
As it stands today, the legal situation on surrogacy is, to say the least, complicated.
Legislation on surrogacy outside other forms of the artificial reproductive technique is a
relatively new phenomenon and not yet universal. Those countries that have made a stand
for or against the different forms of surrogacy have done so individually on different
grounds and with varied outcomes, with examples to follow. This has created an
untenable situation in inter-country surrogacy agreements where neither the
commissioning couple nor the gestational surrogate receives firm guarantees or legal
safeguards, instead of facing a clash of national legislations, taboo around payments,
threats of exploitation, as well as court proceedings and parental right conflicts after
birth.11
Nowadays, a parent‘s surrender of a child for a fee, known as baby selling, is a crime all
over the world. In addition, many countries have regulations limiting or prohibiting
compensation of intermediaries related to the transfer of a child (Field, 1990). The
practice of surrogacy raises a contractual basis and works on the condition of desire and
need. Surrogacy is a ‘necessity’ for those who are economically vulnerable and are
unable to maintain themselves with the help of available resources, and a ‘desire’ of those
who are otherwise unable to procreate or conceive the child of their own. Most countries
of the world prohibit publicizing women who are interested in renting womb and
condemns the practice of surrogacy to protect women from exploitation. In India, there
exists a peculiar situation where surrogacy is not being regulated efficiently. This is
because the legal status of a surrogacy transaction is unclear and hence, surrogacy is
neither legal nor expressly prohibited by law. 12
Does right to privacy include the right to reproductive choices?
In India, ‘the right to have reproductive choices’ has been declared as a part of Article 21
of the Constitution. The Supreme Court in the case of R. Rajagopal v. State of Tamil
10
A Paper by the Iona Institute the Ethical Case Against Surrogate Motherhood : What we can learn from
the law of other European Countries ,( Available at - www.ionainstitute.ie) (Last Visited – 24.12.16)
11
Re X and Y (Foreign Surrogacy) [2008], EWHC 3030 (Fam)., Re L (a minor) [2010], EWHC 3146
(Fam) , CW v NT [201 1] EWHC 33 (Fam) In the matter of N (a child) [2007] EWCA Civ 1053. , Re IJ (a
child) [201 1] EWHC 921 (Fam). ,Re X (children) [201 1] EWHC 3147 (Fam)
12
Jan Balaz vs. Anand Municipality, AIR 2010 Guj 21 at 14.
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
Nadu 13 held that the right to life includes the ‘right to privacy’. A citizen has a right to
safeguard not only his own privacy but also of his family marriage, procreation,
motherhood, child-bearing and education among other matters. The Andhra Pradesh High
Court in B.K. Parthasarathy v. Government of Andhra Pradesh14 recognized
reproductive rights as a
Fundamental right and upheld ‘the right to reproductive autonomy’ of an individual as a
facet of his right to privacy. When the concept of privacy is extended to matters of
procreation, state’s interference or restrictions on procreation amount to a direct
encroachment on one’s privacy. Hence, even though the Supreme Court in Javed v. State
of Haryana15 upheld ‘the two living children’ norm to debar a person from contesting a
Panchayati raj election, it refrained from stating that the right to procreation is not a basic
human right.16
Landscapes of surrogacy in India
India is emerging as a leader in international surrogacy and a sought after destination in
surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with
fertile couples in industrialized nations because of the relatively low cost. The concept of
surrogacy in India is not new. Commercial surrogacy or "Womb for rent," is a growing
business in India. In India, English speaking environment and cheaper services attract the
willing clients. Future projections of surrogacy practice range from the opportunity to
exploitation - from rural women in India uplifted out of poverty to a futuristic nightmare
of developing the country baby farm.17
In 1984 the world saw the first successful birth through gestational surrogacy. Ten years
later, in Chennai, this happened for the first time in India. In the past couple of years, the
number of births through surrogacy doubled with estimates ranging from 200 up to 350 in
2008 alone (Lal, 2008). As briefly addressed before, India is rapidly becoming the most
popular country for fertility tourists‘, which is due to a number of interrelated factors
(Smerdon, 2008). In 2002, the Confederation of Indian Industry (CII) published a study
on the potential India has to develop a medical tourism sector. This was picked up on by
the then Finance Minister of India who wanted India to become a global health
13
R. Rajgopal v. State of Tamil Nadu, (1994) 6 SCC 632.
14
B.K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 AP 156.
15
Javed v. State of Haryana, (2003) 8 SCC 369.
16
Law Commission of India, 228th Report on Legislation to Regulated Assisted Reproductive Technology
Clinics as well As Rights and Obligations of Parties to a Surrogacy, (Aug, 2009),
http://lawcommissionofindia.nic.in/reports/report228.pdf at 1.9. [hereinafter 228th Report of the Law
Commission of India]
17
Jadva V, Murray C, Lycett E, MacCallum F, Golombok S. Surrogacy: The experiences of surrogate
mothers. Hum Reprod 2003;18:2196-204.
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
destination. In order to stimulate this development, he came up with measures to facilitate
a medical tourism industry, including infrastructural improvements (Chinai & Goswami,
2007)18.
Commercial surrogacy has been legal in India since 2002. Surrogacy in India is relatively
low cost and the legal environment is favorable. In 2008, the Supreme Court of India in
the Manji's case (Japanese Baby) has held that commercial surrogacy is permitted in
India with a direction to the Legislature to pass an appropriate Law governing Surrogacy
in India. At present, the Surrogacy Contract between the parties and the Assisted
Reproductive Technique (ART) Clinics guidelines are the guiding force. Giving due
regard to the apex court directions, the Legislature has enacted ART BILL, 2008 which is
still pending and is expected to come in force somewhere in the next coming year. The
law commission of India has specifically reviewed the Surrogacy Law keeping in mind
that in India that India is an International Surrogacy destination.19 The law commission of
India has submitted the 228th Report on "Need for Legislation to Regulate Assisted
Reproductive Technology Clinics as well as Rights and Obligation of Parties to a
surrogacy." The main observations had been made by the law commission are :
Surrogacy arrangements will continue to be governed by contracts amongst parties, but
such an arrangement should not be for commercial purposes. Right to privacy of donor as
well as a surrogate mother should be protected. Sex-selective surrogacy should be
prohibited. Cases of abortion should be governed by Medical Termination of Pregnancy
act 1971 only.2021
Law Relating to Surrogate Mothering Abroad
In many foreign countries, the matter is regulated by legislation enacted during recent
years. In the U.S.A., surrogacy (including commercial, fee-for-service surrogacy) is legal
in about half the states. Some states have enacted a legislation on surrogacy. Some other
states recognize surrogacy though not expressly enacted. Few states have declared
surrogacy contracts void and unenforceable.22 Florida State has two excellent statutes that
specifically regulate surrogacy. This law provides that a childless couple wishing to enter
into such an arrangement must sign an agreement with a surrogate for her to carry the
18
http://www.womenleadership.in/Csr/SurrogacyReport.pdf (last Accessed - Dec 25 , 2016)
19
http://surrogacylawsindia.com/legality.php?id=%207andmenu_id=71 (Last Accessed - 02 Jan . 2017)
20
http://www.nt.gov.au/justice/policycoord/documents/polcoord_surrogacy_consultationpaper.pdf.pdf#sear
ch=%22Surrogacy%22. [Last Accessed on 2016 Dec 21].
21
Government of India, MOH&FW, ICMR: 2008, ART (Regulatory) Bill, Ch. II, V, VII., Part I. and
Schedule I, Part 7 on Forms, 2008. p. 6-11, 20-2, 25-9, 81-135.
22
‘Legal overview o f surrogacy laws by States’. The American Surrogacy
center. Inc. (TASC), Marietta, G.A.
Source : http//www.surrogacy.com/legals/map.html.
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
biological child of the intended father. The surrogate agrees that upon birth, the intended
couple will obtain custody and later adopt the child 23. In California and Chio, the
intended parents are considered to be the legal parents in cases where there is no genetic
parental relationship between surrogate and child. Arkansas recognize the intended
parents as the legal parents whether or not the surrogate has a genetic parental
relationship to the child.24 The surrogate child on adoption by the intended parents will
become their child. In the U.K., the Surrogacy Arrangement Act, 1985 prohibits not only
commercial surrogacy but also commercial agencies from assisting in the creation of
surrogacy arrangements. However, surrogacy arrangement is not enforceable by or
against any of the parties making it. 25
Surrogacy - Challenge to Motherhood
In the case of surrogacy in India, it is hard to tell that whether these women are exercising
their own personal rights or whether they are forced to become surrogate mothers due to
their mother-in-law's or husband's desire to fulfill material and financial needs.
Opponents of surrogacy argue that the practice is equivalent to prostitution and by virtue
of that similarity; it should be disallowed on moral grounds. Surrogacy contracts are
"dehumanizing and alienating since they deny the legitimacy of the surrogate's
perspective on her pregnancy. 26
Bromham 27 made an important comment on the exploitation issue in commercial
surrogacy: 'To induce anyone to undertake similar employment without reasonable
payment would certainly, in other fields, be regarded as exploitative. With surrogates,
the reverse seems true and the payment of a fee to a surrogate seems to be the major
factor linking surrogacy with accusations of female exploitation'. Though some
researchers are quick to point out that, in post-modern society, traditional families are no
longer the singular norm, it is virtually uncontested that a child fares best when raised in
a home with married, biological parents.
Surrogacy: Money not Love
23
4. Surrogacy Here In Florida: Source; www.legalsuri-ogacv.com/surrogacv- law.html. Last accessed –
Dec 24, 2016)
24
“Surrogate Motherhood”: Current Status Source (Available at - www.
geneletter.org/archives/surrogatestatus .html.) Last Accessed –Dec 21, 2016)
25
. Childlessness Overcome Through Surrogacy; Source; www.surrogacv.org.uk/faqs.html. (Accessed on
Dec 25 , 2016)
26
Kevin T. The ethics of surrogacy contracts and nebraska's surrogacy law. Vol. 41. Creighton Law
Review; 2008. p. 185-206
27
Bromham DR. . J Assist Reprod Genet Surrogacy: ethical, legal, and social aspects 1995;12:509-16
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
Over a period of time, questions have been arising whether surrogacy is ethical or
unethical, whether it’s for money or a way of reflecting love to those who cannot bear
children. The difference of opinion can be found regarding the same when surrogacy is
divided into two types: Commercial and altruistic. Considering the Feminists point of
view, surrogacy exploits women and their position in society is degraded through
commercial surrogacy. But again, if we see the altruistic part of it, it gives hope to many.
The process of a woman giving birth to a child of another is not a new phenomenon. The
evidence of this being practiced can be catered from earlier times. Anthropological
studies also document societies in which social and biological parents are not the same
people. For example, among the Kgatla people of Southern Africa, when a related couple
has no children, a couple may decide that their next child will be “born for” the infertile
couple.28 Now, with the rapid development in the technology, possibilities of surrogacy
arrangement have also increased leading to a relatively large number of couples
exercising this option. The increasing concern of surrogacy mothers has attracted world
legislators and thus, different laws prevail related to commercial surrogacy in different
countries. The central idea behind this is whether a woman should be paid for this service
or not.
Financial remuneration in commercial surrogacy has additional mental health benefits for
the surrogate mothers. Research has shown that payment aids emotional detachment from
the growing fetus, and, together with different psycho- logical distancing techniques, the
surrogates have been shown to have an overall positive pregnancy experience. However,
salaries across the globe vary, and there are no international guidelines regarding how
much a cleaner should earn, how much a dentist can charge, or how much a surrogate
mother will receive for her troubles.
The fact that women in India are paid less than their equivalent in the USA or Russia
does not equate to exploitation, it merely illustrates the difference between nominal wage
and real wage rates.29 Many surrogate mothers also feel that financial compensation is
necessary to compensate not only themselves but also their own families who have to live
through the pregnancy.30 In some patriarchal societies, this may also strengthen the
28
Sharyn Roach Anleu , For Love but Not for Money? Gender and Society, Vol. 6, No. 1 (Mar., 1992),
pp. 30-48 Available at - http://www.jstor.org/stable/189910 Accessed on: Dec 28, 2016
29
Humbyrd C.Fair trade international surrogacy. Dev World Bioeth 2009;9(3):1 11-18 Available at-
https://www.ncbi.nlm.nih.gov/pubmed/?term=Humbyrd%20C%5BAuthor%5D&cauthor=true&cauthor_ui
d=19508290
30
J Health Psychol . The social organization of surrogacy: relinquishing a baby and the role of payment in
the psychological detachment process. 2002 Jan;7(1):57-71. Availble at
https://www.ncbi.nlm.nih.gov/pubmed/22114227 Accessed on – Dec 24 2016.
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
position of the surrogate mother through individual empowerment and enhanced
economic opportunity.31
Surrogacy as Exploitation: Making Commodities of Babies and Mothers
Surrogacy ‘splits’ motherhood and is against the interests of the child International law as
it currently stands states that “‘father’ and ‘mother’ mean the persons who according to
the law are the parents of the child.”32 The “maternal affiliation of every child shall be
based solely on the fact of the birth of the child.”33 At its very core, surrogacy is
exploitation. Surrogacy compromises the dignity of the child by making the child the
object of contract a commodity. It further compromises the dignity of the mother, even if
her participation is voluntary, by merely treating her as a gestational oven. The exploitive
reality of surrogacy arrangements and the resulting commodification of women and
children have united unusual allies. “Religious fundamentalists, the Roman Catholic
Church, and feminists alike have condemned the practice of contractual surrogacy as
‘baby selling’—one that demeans and threatens women.”
Child, Mother and Human Rights, Surrogacy as Exploitation - A Human Right
Perspective
According to Kembrell (1988), the practice of surrogacy exploits women economically,
emotionally and physically. An important factor is that most women who get involved as
surrogates do so because they are in desperate need of the money to maintain their
family. In addition, agents are often involved and arrange contracts of questionable
legality. Those contracts require the women to undergo all the rigors of childbearing, and
eventually the have to give the child away (Kembrell, 1988). The surrogate mothers are
often unaware of their legal rights and due to their financial situation they cannot afford
the services of attorneys. Once the surrogate mother has signed the contract, it is
impossible for them to escape. Kembrell (1988) goes even further saying: ―the practice
of surrogacy represents a new and unique form of slavery of women‖. This a view
supported by Davis (1993). During times of slavery, slave women were often used as
birth or genetic mothers and as surrogate mothers nowadays, who possessed no legal
rights as mothers. In light of the commoditization of the children, and actually also of
themselves, they have the same status as surrogate mothers have in contemporary times.
Another similarity is that slave mothers could not speak freely about their pregnancy and
31
Damelio J, Sorensen K. , Enhancing autonomy in paid surrogacy. Bioethics. 2008 Jun;22(5):269-77
Available at - https://www.ncbi.nlm.nih.gov/pubmed/18447862 Accessed on – Dec 24 , 2016
32
Radin, Margaret Jane, Contested Commodities: The Trouble with Trade in Sex, Children, Body
Parts, and Other Things (2001)
33
Children Born Out of Wedlock: The End of an Anachronistic Discrimination Alessia Valongo Available
at – http://www.theitalianlawjournal.it/data/uploads/pdf/1_2014/children-born.pdf, Accessed on – Dec 26 ,
2016
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
the children they carried; an aspect that is also present in surrogacy as a result of social
stigma. Davis is worried that, given this history, poor women may be transformed into a
special cast of hired pregnancy carriers (1993). She believes that with the
commoditization of labor services of pregnant surrogate mothers, money is being made,
which implies that someone is being exploited. Davis continues by saying that surrogacy
appears as a procedure generative of life, what is really generated seems to be sexism and
profits.34
Commercial surrogacy
Commercial Surrogacy paves the way for baby-selling and women exploitation. In some
places, the same rings seem to be involved in prostitution and surrogacy. In Asia, the
same methods are used to recruit young women in the countryside for prostitution and for
surrogacy: lure them with the promise of a respectable job, rape them and take their
passports away. Surrogacy implies psychological detachment from the gestational
mothers. Detachment impacts both the woman and the child. Long-term consequences on
the child can be inferred from those of children relinquished for adoption or born after an
in vitro fertilization with the donor, since surrogacy combines aspects of both situations,
and adds more complexity. In addition to difficulties regarding the establishment of
filiations and nationality of the child, problems may arise in numerous situations: if the
surrogate mother’s health or life are threatened during pregnancy, if the surrogate mother
changes her mind and wants to keep the child, if the commissioning parents part during
pregnancy and do not want the child any longer, if the child is born with a disability and
neither the surrogate mother nor the commissioning parents want him or her.35
Surrogacy compromises the dignity of the child by making the child the object of a
contract—a commodity. It further compromises the dignity of the mother, even if her
participation is voluntary, by merely treating her as a ’womb for hire’. The business of
surrogacy is ripe with opportunities to exploit women and children. Theresa Erickson, an
American attorney who was recently convicted of orchestrating a profitable illegal
34
http://www.womenleadership.in/Csr/SurrogacyReport.pdf (last Accessed - Dec 25 , 2016)
35
SURROGATE MOTHERHOOD: A VIOLATION OF HUMAN RIGHTS AVAILABLE AT
HTTP://ICOLF.ORG/SURROGATE-MOTHERHOOD-A-VIOLATION-OF-HUMAN-RIGHTS/
ACCESSED ON – DEC 24, 2016
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
surrogacy ring exploiting both surrogates and contracting parents, stated that her
participation in abusing the system was just the “tip of the iceberg.”36
“Forced” Surrogacy
Commercial surrogacy arrangements raise concerns of forced surrogacy and
manipulation. Given the newness of reproductive technologies, the intersection between
human trafficking and surrogacy has largely been overlooked.37 “Women’s bodies are
sold internally and on the global marketplace for sex trafficking, and it seems inevitable
that organized crime will shift into the surrogacy market and sales of women’s
reproductive capacity.” India, which is at the forefront of the global surrogacy market,
has raised concerns regarding the ethics of surrogacy because it is highly unregulated and
open to exploitive situations. For example, most surrogates are generally poor, illiterate,
and are recruited from rural villages. Surrogacy recruits are generally kept in clinics
where they are monitored around the clock. 38 There are other concerns, such as
“‘renting’ of Indian women’s bodies by westerners, the lack of counseling services
available to surrogates after the relinquishment of their gestational babies, the use of
mandated and scheduled C-sections by clinics, which allows quick deliveries.”
Political Question and Surrogacy: An Indian Scenario
Our society is known for its traditional values and ideologies. In a country like this,
selling womb of a woman is something not acceptable. Not everything on this earth can
be bought or sold by humans. This is the major concern in the present Indian scenario
when the country has become surrogacy hub. Assisted Reproductive Technology
(Regulation) Bill, 2010 legalized Surrogacy in India. But it didn’t effectively provide for
social and ethical provisions such as rights of child and mother. Giving birth to a child is
not just a manufacturing process but a feeling of attachment and love develops between
the mother and the child. Also, in a country where selling of body, i.e., Prostitution is not
36
Rory Devine and R. Stickney, Convicted Surrogacy Attorney: I’m Tip of Iceberg, NBC SAN DIEGO
(Jan. 05, 2017, 4:12PM), http://www.nbcsandiego.com/news/local/Theresa-Erickson-Surrogacy-Abuse-
Selling-Babies-140942313.html
37
Karen Smith Rotabi & Nicole F. Bromfield, Will Global Surrogacy Be Regulated?, RH REALITY
CHECK (dec 21 , 2016, 9:00 PM), http://www.rhrealitycheck.org/blog/2010/07/07/will-global-surrogacy-
regulated.
38
Nicole Bromfield, Global Surrogacy in India: Legal, Ethical and Human Rights Implications of a
Growing
“Industry”, RH REALITY CHECK (Dec 22 , 2016, 11:00 AM),
http://www.rhrealitycheck.org/blog/2010/06/10/stateless-babies-legal-ethical-human-rights-issues-raised-
growth-global-surrogacy-india.
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
legalized nor the selling or loaning of body organs is legalized under Transplantation of
Human Organ Act, 1994, how can a relation of a mother and her child be
commercialized? How can womb that is the female body organ be given on rent? This
question gains significance, especially in Indian context.
Going to the utility of Surrogacy, more infertility rate is not a problem in our country. We
have a second largest population of the world. Thus, commercializing and promoting
Surrogacy should not be something done by Indian Government.
Surrogacy (Regulation) Bill, 2016 – Ban on Commercial Surrogacy
With this view in mind, the Government introduced the Surrogacy (Regulation) Bill,
2016 aimed at banning commercial surrogacy to protect women and ensure rights of
children born out of surrogacy.
The Bill, if passed, will provide a full frame of rules and regulations governing surrogacy
and will result in its stricter implementation. Listed below are points of the Surrogacy
(Regulation) Bill 2016 39-
1. According to the Bill, only Indian couples, who have been married for at least 5 years
can opt for surrogacy, provided at least one of them have been proven to have fertility-
related issues.
2. Only close relatives, not necessarily related by blood, will be able to offer altruistic
surrogacy to the eligible couples.
3. The new Bill has put a complete ban on commercial surrogacy.
4. It also bans unmarried people, live-in couples, and homosexuals from opting for
altruistic surrogacy. Now, foreigners, even Overseas Indians, cannot commission
surrogacy.
5. A woman can become a surrogate mother only for the altruistic purpose and under no
circumstances, she will be paid for it, although payment can be made towards medical
expenses.
6. Surrogacy regulation board will be set-up at both Central and State-level.
7. The law will be applicable to the whole of India, except for the state of Jammu and
Kashmir.
8. Surrogacy clinics will be allowed to charge for the services rendered in the course of
surrogacy, but the surrogate mother cannot be paid.
9. Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate
mother, selling/import of human embryo have all been categorized as violations that are
punishable by a jail term of at least 10 years and a fine of up to Rs 10 lakh.
10. The surrogate child will have the same rights of as that of a biological child.
The Bill, if passed will have a large impact on the parties involved in the surrogacy40.
39
http://indiatoday.intoday.in/education/story/surrogacy-bill/1/749353.html (last Accessed - Jan 7, 2017)
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
A surrogate child, whether boy or girl, cannot be abandoned by parents.
A surrogate child will have all the rights that a biological child has, including the
right to property.
A surrogate mother cannot be mistreated by the clinic or the parent couple.
The basis of banning commercial surrogacy is considerable as it is to prevent exploitation
of poor, women.
Womb for Hire - Challenges and Suggestion
Despite the way surrogacy is promoted as an option for a close friend or family member
to assist a loved one unable to carry a baby to term in their quest for a child, most
surrogacy arrangements are between individuals who, prior to the surrogacy arrangement,
were total strangers. Most surrogates and contracting couples view the surrogate
pregnancy as a business transaction from the outset, even when the surrogate is the
genetic mother of the child. It is essential to note that surrogates have reported that,
despite their pre-pregnancy thought that viewing the surrogacy as an arrangement
involving a component of financial gain would make it easier to relinquish the baby,
many could not maintain the same mindset after birth.41
Surrogacy: Cluster of issues & complexities:
Surrogacy is being identified as one of the most complicated transactions encountered by
the legal system or the legal fraternity. The researchers in this area are striving hard to
arrive at the reasons that make this transaction so complex. In this context, three reasons
can be cited:
1) A number of issues and different stakeholders associated with a surrogacy
transaction.
2) Lack of clarity of law or the absence of law to deal with surrogacy; and
40
Salient points of Surrogacy Bill, by IANS, http://economictimes.indiatimes.com/news/politics-and-
nation/salient-points-of surrogacy-bill/articleshow/53847817.cms
41
Jon Bernardes, Responsibilities in Studying Postmodern Families, 14 J. FAM. ISSUES 35 (1993)
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
3) Certain prohibitions in the existing framework that make the enforcement of
surrogacy transaction difficult for the parties involved.
This, however, also Emphasizes the need for proper psychological evaluation of the
surrogate mothers to reduce the risk of surrogates entering into agreements purely for
reasons of empowerment. Surrogacy implies psychological detachment on the part of the
gestational mothers. She must not attach to her child. Detachment impacts both the
woman and the child. More and more medical and psychological studies highlight the
importance of the links created during pregnancy between the mother and the child, and
their importance for the child’s development. Long-term consequences on the child can
be inferred from those of children relinquished for adoption or born after an in vitro
fertilization with the donor, since surrogacy combines aspects of both situations, and adds
more complexity.
According to Kimbrell (1988), most women who get involved as surrogates do so
because they are in need of money. The surrogate mothers are often unaware of their
legal rights and due to their financial situation they cannot afford the services of
lawyers.42 Horsburgh (1993) believes surrogates are physically exploited once they have
signed contracts agreeing to give birth to babies for clients. To make matters worse, if the
pregnancy is indeed aborted, the surrogates often receive just a fraction of the original
payment. The contracts can also place liability on the mother for risks including
pregnancy-induced diseases, death, and post-partum complications.43 Outlawing
surrogacy in 1991, France declared, “The human body is not lent out, is not rented out,
and is not sold.” But in India, many take a different stance, believing that that commercial
surrogacy has a positive side because it results in mutual benefits that can change lives. 44
Foster (1987) states that many surrogate mothers face emotional problems after having to
relinquish the child. However, a study by Jadva et al. (2003) showed that surrogate
mothers do not appear to experience psychological problems as a result of the surrogacy
arrangements. Although it is acknowledged that some women experience emotional
problems in handing over the baby or as a result of the reactions around them, these
feelings appeared to lessen during the weeks following the birth. 454647
42
Available from: http://www.andrewkimbrell.org/andrewkimbrell/doc/surrogacy.pdf. [Last accessed on
2016 Dec 24]
43
Surrogate Motherhood-Ethical or Commercial, Centre for Social Research (CSR) 2, Nelson Mandela
Marg, Vasant Kunj- 110070. Available from: http://www.womenleadership.in/Csr/SurrogacyReport.pdf.
[Last accessed on 2016 Dec 24]
44
Womb for Rent, Mina Chang, http://hir.harvard.edu/frontiers-of-conflictwomb-for-rent/
45
Jadva V, Murray C, Lycett E, MacCallum F, Golombok S. Surrogacy: The experiences of surrogate
mothers. Hum Reprod 2003;18:2196-204 Available at - https://www.ncbi.nlm.nih.gov/pubmed/14507844
Accessed on -Dec 12, 2016
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
The commercialization of surrogacy has led to a major concern in the contemporary era.
With the passage of time, the objective of surrogacy has changed from that to help
infertile couples to gain happiness to earning a livelihood through this. Various countries
have banned the practice of surrogacy and it’s too expensive to others; with this, India
becomes a very suitable option and provides a better option to foreign nations also to
come here in search of surrogate mothers.
Conclusion
21st ' century has been recognized the Bio-Tech century. India as a developing country
along with the western world is actively engaged with Genetic Engineering which has
posed many challenges including Medico-legal problems. Surrogacy leads to posing
various challenges related to legal and Ethical issues. Surrogacy involves multi-factors &
several issues that any legal system or law must keep in mind while formulating the
regulations. Those factors range across emotional, natural, ethical, medical, financial and
sociological aspects. There are many issues of human trafficking and exploitation which
has attracted international attention, some, like surrogacy, have been overlooked.
Surrogacy commodities both the surrogate mother and resulting baby, resulting in
exploitation of the surrogate and a parental situation that is not in the best interest of the
child. As news stories about illegal surrogacy rings continue to break, we are learning
that they are, indeed, just the tip of the iceberg. Even surrogacy arrangements that seem
to be voluntary and motivated by altruistic ideals are when one is willing to look beneath
the surface, a violation of the human dignity of mother and child. Surrogacy inherently
transforms a woman’s body into a ‘bread oven’, a commodity, to be used and cared for
while it is useful, and to be forgotten once the “contract” is fulfilled. Several countries
have already taken steps to significantly limit or ban surrogacy48. India, surrogacy is
purely a contractual bond between the parties and proper care has to be taken while
drafting any such agreement so that it won’t violate laws or ethics. India is probably the
46
Surrogate Motherhood-Ethical or Commercial, Centre for Social Research (CSR) 2, Nelson Mandela
Marg, Vasant Kunj- 110070. Available from: http://www.womenleadership.in/Csr/SurrogacyReport.pdf.
[Last accessed on 2012 Nov 6].
47
Singh KK. Human genome and human rights: An overview. J Indian Law Inst 2008;50:67-80.
48
A Paper by the Iona Institute the Ethical Case Against Surrogate Motherhood : What we can learn from
the law of other European Countries ,( Available at - www.ionainstitute.ie) (Last Visited – 24.12.16)
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
only nation in the world which exclusively enshrines female deities in artistically built
temples. However, the history of reproduction politics in India shows a proliferation of
rhetoric and policies that discourage poor women from reproducing.49 Authors believe
that Endeavour to bring about legislation on surrogate mothering will be a boon to the
childless couples, not only solving their problems but also the legal issues arising out of
Surrogate mothering.
References
i. Ankit Sourav Sahoo , Legality of Commercialisation of Surrogacy in India and
Social Implications, Global Journal for Research Analysis Volume-4, Issue-7,
July-2015
ii. B.K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 AP 156.
iii. Baby Manji Yamada v. Union of India & Anr (2008) 13 SCC 518
iv. Buchanan, Jim, Baby M & Surrogate Motherhood: A Resource Guide, 1987. 17p.
Vance Biblios
v. Eric Blyth , Children's Welfare, Surrogacy and Social Work , The British Journal
of Social Work, Vol. 23, No. 3, pp. 259-275 (JUNE 1993)
vi. Feminisms: Some reflections and Concerns in Relation to Globalization of
Reproductive Technologies, 13 EUR.J Women’s stud.23, 30 (2006)
vii. Field, Martha A, Surrogate Motherhood, 1988. 224p. Harvard University Press
viii. Inder D, Sharma N, Anu, Kumar P, Surrogacy and women's right to health in
India: Issues and perspective.Indian Journal of Public Health 2013; 57:65-70
ix. Jan Balaz vs. Anand Municipality, AIR 2010 Guj 21 at 14.
x. Javed v. State of Haryana, (2003) 8 SCC 369.
xi. Jon Bernardes, Responsibilities in Studying Postmodern Families, 14 J. FAM.
ISSUES 35 (1993)
49
Ankit Sourav Sahoo , Legality of Commercialisation of Surrogacy in India and Social Implications,
Global Journal for Research Analysis Volume-4, Issue-7, July-2015 Available at -
https://www.worldwidejournals.com/global-journal-for-research-analysis-
GJRA/file.php?val=July_2015_1436858446__53.pdf
SURROGACY, LAW, AND HUMAN RIGHTS: A CRITICAL
ANALYSIS
xii. Jyoti Bhakare, Surrogacy- A Reality Eclipsed by Ethical, Social, Legal Issues-
Indian Perspectives, 2 INDIAN JOURNAL OF LAW & JUSTICE 80 (2011)
xiii. Jyotsna Agnihotri Gupta, towards Transnational
xiv. Kevin T. The ethics of surrogacy contracts and nebraska's surrogacy law. Vol. 41.
Creighton Law Review; 2008. p. 185-206
xv. Law Commission of India, 228th Report on Legislation to Regulated Assisted
Reproductive Technology Clinics as well As Rights and Obligations of Parties to
a Surrogacy, (Aug, 2009),
xvi. N.R. Raghavachary’s Hindu Law, Principles and Precepts, 8th Edition. 1987,
Page 93
xvii. R. Rajgopal v. State of Tamil Nadu, (1994) 6 SCC 632.
xviii. Radin, Margaret Jane, 1988, ―Market Inalienability‖, Harvard Law Review, 100:
1849–1937
xix. Relating to Surrogacy, 1988. Natl Conf State Legis.
xx. Sharyn Roach Anleu , For Love but Not for Money? Gender and Society, Vol. 6,
No. 1 (Mar., 1992), pp. 30-48
xxi. Sharyn Roach Anleu , Surrogacy: For Love but Not for Money? Gender and
Society, Vol. 6, No. 1 (Mar., 1992), pp. 30-48
xxii. Sheela Saravanan, Transnational Surrogacy and Objectification of Gestational
Mothers, Economic & Political Weekly, April 17, 2010 Vol XLV No' 16 |
xxiii. Singh KK. Human genome and human rights: An overview. J Indian Law Inst
2008; 50:67-80.
xxiv. Winston, K. I. & Bane, M.J. (1993). Gender and public policy: Cases and
comments, Boulder, CO: Westview Press, Inc.
