Commercialization of the Surrogacy in India: A Critical Analysis

Author : Akshansh (LLM), ICFAI Law School, The ICFAI University, Dehradun

ABSTRACT

The paper focuses on the commercialization of surrogacy in India. It starts by briefly introducing the topic and then goes on to explain the meaning and concept of surrogacy. It presents various definitions of surrogacy and discusses the three different types of surrogacy, followed by a discussion of its historical background in both Indian and global contexts. The paper then delves into the commercialization of surrogacy in India, including the Surrogacy Super Mart. It also addresses moral and ethical issues related to surrogacy, as well as the laws governing surrogacy in India. The paper covers the judicial response in India to surrogacy, legal issues surrounding surrogacy, and concludes with final observations, suggestions, and recommendations on the topic.

KEYWORDS:

INTRODUCTION

Nature has given women the amazing ability to bring new life into the world, and every woman values the experience of becoming a mother. The right to have children is a fundamental human right. The desire for children among couples is a universal phenomenon. Parenthood is a transformative and incredibly fulfilling experience. The pain and sorrow of not being able to fulfill the dream of parenthood is beyond measure. The field of infertility treatment has advanced significantly. Families are considered of utmost importance in every society worldwide. When two people unite in marriage, a new family is formed, and this family is completed with the arrival of children. Throughout history, children have been seen as essential for carrying on the family line and bringing joy to parents. Psychologists emphasize that the birth of a child strengthens the bond between spouses, helping to sustain difficult marriages. However, for various reasons, many people are unable to have children. Studies show that one in six couples face fertility issues. The inability to have children is often seen as a stigma. In some cases, the inability to conceive has led to the breakdown of marriages. Infertility, a global issue, affects a significant portion of society. According to a report by the World Health Organization, the global incidence of infertility, including in India, is around 10-15 percent.

Some types of infertility previously thought to be untreatable now have straightforward solutions. In the past, adoption was often the only recourse for couples unable to conceive. Advances in medical science, particularly in artificial human reproductive technologies (ART), have offered new possibilities for individuals seeking to have a biological child. ART options include artificial insemination, In-Vitro fertilization, embryo transfer, and the increasingly popular method of surrogacy.

MEANING AND CONCEPT OF SURROGACY

Surrogacy represents a significant scientific advancement in reproduction, utilizing a woman’s womb to conceive children for another individual. It is a highly effective solution for overcoming both biological and social infertility. This method offers genetically related offspring to couples facing challenges with artificial reproduction and in vitro fertilization. Consequently, surrogacy has emerged as a desirable option for those seeking a biological connection to their children. The practice of surrogacy has gained global recognition and is seen as a ground-breaking solution for individuals and couples struggling with infertility. Surrogate motherhood is widely regarded as a blessing for those unable to conceive, offering hope for achieving parenthood. The term ‘surrogate’ is derived from the Latin word ‘surrogatus,’ which means a substitute appointed to act on behalf of another. Traditionally, surrogate motherhood involves an agreement between a married couple facing infertility issues due to the wife’s condition and a fertile woman who agrees to conceive the husband’s child through artificial insemination, carry the pregnancy to term, and relinquish all parental rights to the child. Surrogacy represents a significant scientific advancement in reproduction, utilizing a woman’s womb to conceive children for another individual. It is a highly effective solution for overcoming both biological and social infertility. This method offers genetically related offspring to couples facing challenges with artificial reproduction and in vitro fertilization. Consequently, surrogacy has emerged as a desirable option for those seeking a biological connection to their children. The practice of surrogacy has gained global recognition and is seen as a ground-breaking solution for individuals and couples struggling with infertility. Surrogate motherhood is widely regarded as a blessing for those unable to conceive, offering hope for achieving parenthood. The term ‘surrogate’ is derived from the Latin word ‘surrogatus,’ which means a substitute appointed to act on behalf of another. Traditionally, surrogate motherhood involves an agreement between a married couple facing infertility issues due to the wife’s condition and a fertile woman who agrees to conceive the husband’s child through artificial insemination, carry the pregnancy to term, and relinquish all parental rights to the child.

DEFINITIONS OF SURROGACY

According to Black’s Law Dictionary, ‘an agreement wherein a woman agrees to be artificially inseminated with the semen of another woman’s husband.”

The New Encyclopedia Britannica defines- ‘Surrogate motherhood’ as     the practice in which a woman bears a child for the couple to produce children in the usual way.

In Medical parlance– the term surrogacy means using of a substitute in place of natural mother.

The ART Bill defines surrogacy as an agreement in which a woman agrees to carry a pregnancy achieved through assisted reproductive technology, using gametes that do not belong to her or her husband. The intention is to carry the pregnancy to term and hand over the child to the intended parents.²

TYPES OF SURROGACY

There are three main types of surrogacy: Genetic/partial surrogacy, Total surrogacy, and Gestational surrogacy.

In Genetic/partial surrogacy, the surrogate mother is the genetic mother of the child, while the commissioning mother takes on the social and legal mother role. Total surrogacy involves fertilizing the surrogate’s egg with the sperm of a donor or the commissioning father.

In Gestational surrogacy, the embryo is created from the egg and sperm of the commissioning couple or donors and implanted into the surrogate mother, who has no genetic connection to the child. Surrogacy can also be categorized based on financial compensation as Altruistic Surrogacy, where no payment is given to the surrogate mother, and Commercial Surrogacy, where the surrogate is financially compensated for her services beyond pregnancy-related expenses.  

HISTORICAL BACKGROUND OF SURROGACY

Surrogacy is an ancient practice that dates back to biblical times. The first recorded instance of surrogacy occurred near the city of Hebron in the land of Canaan, where Sarah, the infertile wife of Abraham, convinced her maid Hagar to bear a child by having relations with Abraham. Despite Abraham being 86 years old at the time, he was able to conceive a child with Hagar, who gave birth to Ishmael in 1910 BC. This marked the first known traditional surrogacy program in history. The practice continued in Mesopotamia in the XVIII century BC when Rachel, the wife of Jacob, commissioned her maid Bilhah to bear a child through Jacob. Surrogacy was also common in ancient Egypt, where many Pharaohs asked their concubines to help them produce offspring, believing themselves to be direct descendants of the God of Sun Ra. Research on artificial insemination began centuries ago, with Dutch scholar A. Leeuwenhoek being the first to observe spermatozoa in 1677. Scottish surgeon John Hunter performed the first artificial insemination in 1790, and the first IVF attempt in history took place in guinea pigs in 1880. French scientist Heape successfully carried out IVF in 1891 by transferring an embryo between guinea rabbits. By 1920, artificial insemination using the husband’s or a selected donor’s sperm became a common infertility treatment. The world’s first IVF baby, Louise Brown, was born in the UK in 1978, followed by India’s first IVF baby, Kanupriya alias Durga, born in October 1978. The first gestational surrogacy program was implemented in Ann Arbor, Michigan, in April 1986. In 1987, a surrogacy program among relatives saw 48-year-old Pat Anthony successfully bear and deliver three grandchildren for her 25-year-old daughter, Karen Ferreira Jorge, in South Africa.

– INDIAN HISTORY OF SURROGACY

Hindu mythology features examples of surrogacy and reflects the secrecy shrouding this practice. In the Bhagavata Purana, Vishnu responded to Vasudeva’s prayers by transferring an embryo from Devaki’s womb to Rohini, Vasudeva’s other wife. Rohini gave birth to Balaram, Krishna’s brother, in secret. Similarly, in the Mahabharata, Gandhari produced a semi-solid material that was divided by Maharishi Vyas into 100 pieces, resulting in the birth of the 100 Kauravas.

Maharishi Bhardwaj witnessed a divine nymph emerging from water and, feeling overwhelmed by her beauty, deposited his semen in a ceremonial pot named Darona, from which Dronacharya was born. In 599 AD, the 24th Trithankar, Mahavira, was conceived through embryo transfer from one woman’s womb to another. Devananda, the wife of Brahmin Rishabdeva, conceived him, and the gods transferred the embryo to Trishala.

The world’s second and India’s first IVF baby, Kanupriya (also known as Durga), was born on October 3, 1978, in Kolkata through the efforts of Dr. Subhas Mukherjee and his colleagues, sparking significant controversy.3

COMERCIALIZATION OF SURROGACY IN INDIA  

Imagining a child as a commercial entity is challenging. Babies are typically seen as products of love rather than financial transactions, conceived far removed from any commercial context. Throughout history, impoverished parents have regarded their children as potential economic assets, weighing their future contributions in fields, factories, or estates against the costs of raising them. The commercialization of surrogacy, particularly in countries like India, has sparked debates on issues such as the commodification of women’s bodies and legal complexities surrounding contracts and jurisdictions. The surrogacy market is expansive and continuously expanding, with numerous prospective parents worldwide seeking to engage another woman to carry their child. Referred to as “wombs for rent,” commercial surrogacy is a burgeoning industry in India, with critics labeling it as a ‘baby booming business’ or ‘parenthood by proxy.’ This transformation of a natural biological process into a commercial transaction involves the recruitment of surrogates, profit-making agencies, and concerns about the emergence of black markets and unethical practices. India’s surrogacy industry is thriving due to the availability of surrogate mothers and relatively lower costs compared to other countries, attracting foreign couples seeking surrogacy services. The lack of legal intervention has made surrogacy a complex issue in India, where it has become a multi-billion-dollar industry facing various social challenges. Legalized in 2002, commercial surrogacy in India generates substantial revenue, with services offered at numerous clinics nationwide. Despite the seemingly modest compensation provided to Indian surrogate mothers, it often serves as crucial financial support for their families. The competitive nature of Indian clinics extends beyond pricing to the recruitment and retention of surrogate mothers, with comprehensive surrogacy packages offered at a fraction of the cost in Western countries. Various Indian cities have emerged as hubs for finding surrogate mothers, attracting childless couples globally due to the affordability and availability of surrogacy services. However, the exploitative nature of commercial surrogacy arrangements, particularly for socio- economically disadvantaged surrogate mothers, raises ethical concerns and exposes them to risks without adequate legal protection or compensation. 4The surrogacy market in India, estimated to be significantly lower than in the United States, continues to attract international interest due to its cost-effectiveness. Surrogacy services are available in India, despite the ban on the sale, loaning, or commercialization of human organs under the Transplantation of Human Organs Act, 1994.

In India, surrogates are not restricted to single parents, gay couples, or unmarried partners, despite the country’s prohibition on same-sex relationships. The desire to have a biological child, combined with financial means and the entrepreneurial spirit in India, has led to the growth of the Indian reproductive tourism industry. An article titled “Moms on the Market” was featured in The Hindustan Times on 13 March 2011.  

MORAL AND EHTICAL ISSUES RELATNG TO SURROGACY

The concept of surrogacy is rooted in altruism, where one woman assists another. Historical texts in Hinduism and Christianity mention surrogacy in the past. Various moral and ethical concerns surround the practice:

1.   Harm to Surrogate Mother: In India, many women become surrogate mothers due to financial needs. However, the use of surrogacy technology can lead to complications that endanger the surrogate mother’s health and life. This raises concerns about who is liable for any harm suffered by the surrogate mother. Without medical negligence from the doctors and medical staff, determining liability and compensating the surrogate mother for her losses can be challenging.

2.   Interest of the Child: Critics argue that paying a surrogate mother for delivering a child to commissioning parents equates to buying and selling a child. This practice is also criticized for potentially allowing the selection of a child’s sex and traits, leading to the creation of designer babies. Additionally, surrogacy procedures involving in vitro fertilization often result in multiple births, which may not align with the commissioning parents’ wishes and could be detrimental to the child’s well-being. The complex process of surrogacy, involving multiple adults, makes determining parentage and custody rights challenging.

3.     Surrogacy Degrades the Dignity of Women: The right to dignity is considered fundamental for all individuals. Critics argue that surrogacy diminishes a woman’s inherent dignity by using her body to produce a child for commissioning parents. Throughout the pregnancy, the surrogate mother must adhere to contractual terms and may not have autonomy over decisions regarding her own body. The commercial aspect of surrogacy can hinder the development of a meaningful bond between the surrogate mother and the child, leading to the perception of the process as a mere transaction that reduces the woman to an incubator or breeding tool.

4.   Surrogacy Equated with Prostitution: Some authors draw parallels between surrogacy and prostitution, as both involve using a woman’s reproductive capacity and body in exchange for financial compensation. Critics argue that, similar to a prostitute who lacks control over her services and must adhere to client demands, a surrogate mother may also lack agency and be subject to the terms set by the commissioning parents. In both scenarios, physical services are provided in exchange for monetary compensation.

5.     Surrogacy has been likened to the exploitation of women from low-income backgrounds- Surrogacy in India has been likened to the exploitation of economically disadvantaged women. Women facing financial constraints in the country have embraced this method as a way to earn quick money and support their families. The presence of high-quality medical facilities and the availability of affordable surrogate mothers have made India a top destination for outsourced surrogacy. Consequently, childless couples from around the world are turning to India for surrogacy services at a reduced cost. This outsourcing practice has garnered significant criticism, with concerns raised about the potential exploitation of women and issues such as slavery and neo-colonialism.

6.   Surrogacy is Playing the Role of God- Surrogacy challenges traditional beliefs about the sanctity of procreation, where children were seen as gifts from a higher power. Before modern medical advancements, childless couples had limited options, such as adoption or accepting their situation as fate. However, scientific progress has allowed couples to conceive genetically related offspring. While this has been beneficial, criticism arises from the use of technology to manipulate traits in babies. Critics argue that such interference in reproduction is akin to playing God and raises moral, ethical, and religious concerns.    

LAW RELATING TO SURROGACY IN INDIA

The legal landscape of surrogacy varies between different jurisdictions. Internationally, surrogacy is categorized into three aspects: free market, regulated, and prohibited. Some jurisdictions completely prohibit surrogacy, considering commercial surrogacy a criminal offense. In contrast, other jurisdictions permit surrogacy under limited altruistic grounds. India stands out as the only country where surrogacy is neither banned nor fully regulated. Currently, there is no specific law in India governing surrogacy, making it enforceable by default. In 2005, the Ministry of Health and Family Welfare in India issued non-binding National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics. The absence of codified laws means that ordinary civil law applies to surrogacy arrangements. Efforts have been made to regulate surrogacy, such as the draft Assisted Reproductive Technology Bill in 2008. However, criticisms have been raised against these regulations for potentially favoring the interests of the medical industry over the rights of surrogate mothers and children. The 2010 Draft Assisted Reproductive Technology Bill and Rules is the most recent version following updates to the 2008 Draft. The previous iteration aimed to address issues related to Assisted Reproductive Technologies (ARTs) but had limitations, prompting the expectation that the new Draft would fill these gaps. The current Draft has made some improvements based on feedback from the previous version, but it remains incomplete. To effectively oversee the growing ART and surrogacy industry in India, the legislation must address these gaps. The 2012 New Indian Medical Visa Regulations stipulate that only married individuals with a marriage of at least 2 years can obtain medical visas for surrogacy. The 2013 Assisted Reproductive Technology (Regulation) Bill specifies age requirements for surrogate mothers and outlines conditions for foreign couples engaging in surrogacy in India. Compensation for surrogacy under the 2013 draft will be determined through private negotiation between the surrogate mother and commissioning parents, without involvement from IVF clinics or ART banks. The Bill excludes homosexual couples, foreign single individuals, and couples in live-in relationships from using surrogate mothers in India. In its current state, the Bill falls short in safeguarding the rights and health of women undergoing IVF procedures, acting as surrogates, and children born through commercial surrogacy. It also lacks standards for medical practices and overlooks regulations for third-party agents involved in surrogacy arrangements.

JUDICIAL RESPONSE TO SURROGACY IN INDIA

The significant issue of surrogate arrangements was brought before the Supreme Court of India in the case of Baby Manji Yamada. In this case, a Japanese couple entered into a surrogacy contract resulting in the birth of Baby Manji to an Indian surrogate mother. The commissioning father, Mr. Yamada, attempted to obtain travel documents to take the baby to Japan. However, the Japanese Embassy in India refused to issue Maniji a Japanese passport or visa due to the Japanese Civil Code not recognizing surrogate children. Mr. Yamada then sought to apply for an Indian passport for Maniji, which necessitated a birth certificate for issuance. According to Indian law, a birth certificate requires the names of both the mother and father. In this particular case, although Mr. Yamada was the genetic father, uncertainty arose regarding the mother’s name as Baby Manji had three mothers – the commissioning mother, the anonymous egg donor, and the surrogate. As a result of the unclear legal mother status, authorities declined to issue a birth certificate, leading to the refusal of an Indian passport. Instead of making a decision, the court directed the petitioner, the baby’s paternal grandmother, to the National Commission for Protection of Child Rights for further guidance. The unresolved issue of the surrogate mother being recognized as the natural mother was revisited in the Supreme Court of India in a challenge to the ruling in the German Couple case by the Gujarat High Court. In this German Couple case, a childless German couple had twins through a surrogate mother with the assistance of an infertility clinic in Anand, Gujarat. Since German laws do not acknowledge surrogacy for parenthood, the children could not be considered German citizens. To circumvent potential legal obstacles in the immigration process, the couple sought permission from the Gujarat High Court for their surrogate children to hold Indian passports. The court in this case not only addressed citizenship and passport issuance for the twins but also delved into the roles of the gestational surrogate mother and the egg donor. In the absence of specific legislation, the court recognized the gestational surrogate who gave birth to the child as the natural mother, while the anonymous egg donor was not considered the natural mother. Regarding the intended mother, the court determined that she was simply the wife of the biological father and could not be deemed the legal or natural mother in the absence of legislation. Despite the various cases, Indian courts have not provided comprehensive guidance on surrogacy, leaving the matter to the legislature. In 2010, a gay couple from Israel, Dan Goldberg and Arnon Angel, faced challenges after their twin baby boys were born in Mumbai through an Indian surrogate mother. Following a refusal by the Jerusalem Family Court to allow a paternity test for Israeli citizenship, Prime Minister Benjamin Netanyahu intervened, enabling the infants to be brought to Israel after legal procedures. Upon appeal, the Jerusalem District Court permitted a DNA paternity test, establishing Dan Goldberg as the father of the twin boys. After a prolonged stay in Mumbai, Goldberg and his twin sons returned to Israel in May 2010 with Israeli passports.

CONCLUSION

Surrogacy has been utilized as a method for conceiving a child since ancient times. However, advancements in science and technology have expanded its usage beyond just infertile couples to include anyone desiring to have a child. This technological progress has made contraception more accessible and cost-effective, leading to the emergence of a market to meet the growing demand for surrogacy services. Consequently, the escalating use of surrogacy has sparked legal, ethical, moral, and religious debates worldwide. The complexity of surrogacy arrangements involving multiple individuals raises conflicts regarding parental rights and responsibilities towards the child. This inherent issue within surrogacy creates uncertainty about potential problems that may arise. While surrogacy offers a solution for infertile couples, its commercialization has introduced various challenges. Commercial surrogacy protects the reproductive rights of infertile women but risks violating human rights when criminalized. Developing countries permitting commercial surrogacy may better safeguard the reproductive rights of female citizens. Regulation of surrogacy practices towards mutually beneficial outcomes is crucial to prevent the maintenance of a global black market for surrogacy services, which exposes women to trafficking, exploitation, and coercion. Legal contracts must evolve to safeguard the interests of surrogate mothers, considering that surrogacy decisions are influenced by personal circumstances subject to change. Contracts should address medical insurance and emergency needs of surrogate mothers. With India emerging as a thriving hub for surrogacy, the lack of comprehensive legislation has led to complex societal impacts. Specific laws are necessary to regulate surrogacy and protect surrogate mothers, as well as the babies born through surrogacy, from exploitation. The absence of proper legislation in India results in the exploitation of both surrogate mothers and intended parents, with middlemen and commercial agencies profiting. The lack of transparency and unpredictable regulations surrounding surrogacy in India increase the risk of legal issues. Unlike the USA, India lacks provisions for psychological screening and legal counseling in surrogacy arrangements. Surrogacy, like any technology, carries both positive and negative effects. Appropriate usage can bring joy to many childless couples. However, misuse for commercial purposes may negatively impact society, eroding human relationships and values. Without proper regulation, surrogacy could shift from a medical necessity for infertile couples to a convenience for the affluent who seek to avoid the challenges of natural childbirth.

SUGGESTIONS

Countries that allow commercial surrogacy could improve the protection of women’s reproductive rights by enhancing women’s empowerment and addressing violations of negative rights within their borders. This can be achieved by improving conditions that create vulnerability and make it challenging for women to decline such offers.

It is essential to ensure that women have access to reproductive rights that empower them to make decisions about their bodies without coercion. Additionally, countries that currently ban commercial surrogacy domestically can consider extending these prohibitions beyond their borders.

The contract should include the surrogate mother to ensure her interests are considered as a key party in the agreement. It is common for decisions to be made solely by the intended parents and clinic, without input from the surrogate mother. While diverse family structures should be supported, promoting commercial surrogacy as the top choice for family- building should be avoided.