Surrogacy and Women’s Right to Health in India: Issues and Perspective

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

ABSTRACT

The human body functions like a remarkable machine. The future of childbirth, in the form of test tube babies and surrogate motherhood using new reproductive and cloning technologies, will bring unprecedented possibilities in the realm of reproduction. Surrogacy, an assisted reproduction method where a woman agrees to carry and give birth to a child for others, has been permitted in certain jurisdictions, allowing intended parents to be legally recognized from birth. The practice of commercial surrogacy, also known as “Womb for rent,” is becoming

increasingly popular in India. With the world rapidly globalizing, the rise of reproductive tourism is a recent development. The surrogacy industry in countries like India is taking advantage of vulnerable women, exacerbating the already high maternal mortality rates. This article addresses issues related to paternity and women’s healthcare concerning surrogacy. It is imperative for the government to consider implementing regulations to oversee surrogacy in India, safeguarding and providing guidance to couples opting for this reproductive choice. In the absence of a robust legal framework, patients are at risk of misinformation and exploitation of surrogates.

INTRODUCTION

The human body is a remarkable system that remains a mystery. Advancements in reproductive technologies such as test tube babies and surrogate motherhood have opened up new possibilities in the realm of sexuality. When reproductive methods replace natural conception, it can devalue the sanctity of procreation, leading to individuals being seen as mere objects for sexual gratification. This can erode mutual respect, particularly towards unborn children. ¹While science and technology have greatly benefited society, the ethical implications of these advancements are contentious.

MEANING AND REASONS FOR SURROGACY

Surrogacy is an assisted reproduction method where a woman agrees to become pregnant and give birth to a child for others to raise. She may be the child’s genetic mother (traditional surrogacy) or be implanted with an unrelated embryo. This arrangement, often involving the male half of the couple as the genetic father, has been practiced since ancient times. In some situations, surrogacy is the only option for parents who want a biologically related child. ²The term “surrogate” is derived from the Latin word “Subrogare” meaning “appointed to act in the place of.” Altruistic surrogacy involves a surrogate mother gestating a child for intended parents without receiving any monetary compensation. On the other hand, commercial surrogacy involves a financial incentive for the surrogate. This method is controversial due to ethical concerns about the involvement of money in childbirth. Reasons for surrogate pregnancy can include infertility, inability to carry a pregnancy to term, medical conditions like hysterectomy or uterine malformation, or a reluctance to undergo pregnancy. Agencies facilitating surrogacy for intended parents often assist in managing the medical and legal complexities of the process³.

Surrogacy: International Scenario

Laws vary significantly between countries. In England, commercial surrogacy agreements are illegal and are prohibited by the Surrogacy Arrangement Act 1985. A surrogate mother retains legal rights to the child, even if there is no genetic connection. Without a parental order or adoption order, the surrogate mother continues to be the child’s legal mother.⁴

Status of surrogacy in USA

Surrogacy and its legal aspects in the United States are overseen by individual states, leading to varying regulations across the country. Certain states support surrogacy and associated contracts, while others do not enforce them and some impose penalties on commercial surrogacy. Conversely, in Canada, the Assisted Human Reproduction Act allows for altruistic surrogacy exclusively. While surrogate mothers can receive reimbursement for authorized expenses, giving any other form of compensation is against the law.⁵

Status of surrogacy in Australia

Altruistic surrogacy is legal in Australia, with the exception of Tasmania, where all surrogacy is prohibited under the Surrogacy Contracts Act 1993. Conversely, arranging commercial surrogacy is considered a criminal offense in all states.⁶

Status of surrogacy in South Africa

The Children’s Act of 2005 in South Africa permits the validation of surrogacy agreements by the High Court prior to fertilization, allowing for commissioning parents to establish legal parenthood at the beginning of the process and minimize ambiguity.⁷

Status of surrogacy in Asian Countries

The Science Council of Japan has recommended prohibiting surrogacy in Japan, with penalties for doctors, agents, and clients involved in commercial surrogacy agreements.

Religious authorities in Saudi Arabia prohibit the use of surrogate mothers. In China, the Ministry of Health banned surrogacy in 2001. Despite this, reports indicate that an underground “black market” for illegal surrogacy continues to thrive in the country. Concerned about this issue, political parties have proposed stringent legislation.⁸

Legal Aspects of Surrogacy in Europe

Surrogacy regulations in Sweden are unclear, with the closest legal option being the adoption of the child from the surrogate mother. Swedish fertility clinics are prohibited from arranging surrogacies. In Ukraine, gestational surrogacy is legal only for married couples. Russia permits commercial gestational surrogacy for consenting adults with specific medical reasons. Both foreigners and Russian citizens have equal rights in assisted reproduction. Surrogacy was previously illegal in Bulgaria, but it is now sanctioned by the government under the term “substitute mother.” In Georgia, surrogacy is legal, but surrogate mothers cannot claim parental rights. Countries like Poland and Romania lack defined surrogacy laws, allowing individuals to pursue surrogacy despite the legal ambiguity in these nations. The laws regarding surrogacy in Europe vary significantly, with some countries having unclear or absent regulations.⁹

Health Risks Associated with Surrogacy

In the US, surrogates typically receive a maximum of two embryos for safety reasons, while in India, they may be implanted with up to five embryos to enhance the chances of pregnancy. However, using a high number of embryos can elevate health risks for both the babies and the surrogate mother. Surrogates who carry a child may face increased chances of post-partum depression. Pregnancy, childbirth, and the postpartum period can involve complications like pre-eclampsia, eclampsia, urinary tract infections, stress incontinence, hemorrhoids, gestational diabetes, life-threatening hemorrhage, and pulmonary embolism. Multiple pregnancies raise the probability of needing a surgical delivery. An older surrogate mother faces higher risks of perinatal mortality, perinatal death, intrauterine fetal death, and neonatal death. The mother also faces a greater danger of pregnancy-induced hypertension, stroke, and placental abruption due to hormones or medications prescribed to

the surrogate, all of which have potential side effects. Many women who undergo artificial insemination also undergo fertility treatments, heightening the likelihood of adverse reactions and risks associated with the procedure. Challenges like premature delivery, genetic abnormalities, and infections leading to increased newborn hospitalizations are crucial factors to consider in a surrogacy agreement. Following birth, many surrogate mothers breastfeed the newborns in the initial hours. Nevertheless, parents may encounter difficulties in starting breastfeeding and establishing a bond between the mother and child in surrogacy situations. One notable drawback of induced lactation in most surrogates or adoptive mothers is the limited production of breast milk compared to a new mother immediately after childbirth, posing a challenge in terms of infant nourishment.¹⁰

Social and Psychological Context of Surrogacy

The commercialization of surrogacy leads to various social conflicts. Given the extreme vulnerability of one-third of Indian women due to factors such as poverty, exclusion, marginalization, patriarchal structures, and low education levels, financial gain becomes a significant driving force for engaging in surrogacy. Since many surrogate mothers come from less privileged backgrounds and are primarily motivated by financial reasons, they are often vulnerable to exploitation by agents working on behalf of commissioning parents. The secrecy and anonymity surrounding surrogacy create a negative environment that impacts human relationships within families and beyond. Surrogacy carries a social stigma in society, often being compared to prostitution, leading to arguments that it should be banned on moral grounds. Surrogate mothers are often kept isolated from their families and only allowed to visit them on weekends, which goes against basic human rights. Therefore, there are numerous ethical, social, legal, and psychological issues associated with surrogacy that necessitate the urgent development and enforcement of appropriate laws.

Surrogacy and Women’s Right to Health: Indian Scenario

Surrogacy in India is a well-established concept, particularly commercial surrogacy, which is increasingly popular. The country’s English-speaking environment and affordable services make it a desirable destination for prospective clients. The future of surrogacy in

India presents a spectrum of possibilities, from empowering rural women and lifting them out of poverty to a dystopian scenario of a baby farming industry in a developing nation. The motivations behind women choosing to become surrogate mothers are complex, with questions arising about whether they are exercising their own agency or succumbing to external pressures from family members seeking financial gain. Critics of surrogacy liken it to prostitution, contending that it devalues the surrogate mother’s role and exploits her reproductive capabilities for monetary benefits. The lack of legal safeguards for surrogate mothers in cases of medical complications or coercion further adds to the ethical concerns surrounding the practice. The commercial surrogacy industry in India, which has thrived since becoming quasi-legal in 2002, has attracted criticism for potentially exploiting economically disadvantaged women in a country with high maternal mortality rates. Estimates suggest that the surrogacy business in India generates around $445 million annually, a figure that continues to grow. The ethical, social, and legal implications of surrogate motherhood, where the woman carrying the child has no legal claim to it, are subjects of ongoing debate. The potential for economic exploitation and concerns about the commodification of childbirth underscore the need for comprehensive regulations to protect all parties involved.¹¹

The Ministry of Women and Child Development in India is currently reviewing the issue of surrogate motherhood to develop comprehensive legislation. The Indian Council of Medical Research (ICMR) has drafted legislation on surrogacy, proposing strict penalties and rigorous regulation of Assisted Reproductive Techniques (ART). The draft law limits the number of embryo transfers for a mother to three attempts for the same couple, and specifies that a woman should not be a surrogate for more than three live births in her lifetime. These guidelines were established by the ICMR and the Ministry of Health and Family Welfare in 2005. According to the ICMR guidelines, a surrogate can be a relative, a known individual, or someone unknown to the couple. If a relative is the surrogate, they should be from the same generation as the intending mother. Experts argue that commercial surrogacy may unnecessarily target childless couples. The guidelines state that a surrogate must be under 45 years old, without mentioning a minimum age requirement. This raises questions about whether an 18-year-old or even younger person can become a surrogate mother. Before accepting a woman as a potential surrogate, the ART Clinic must confirm and document that she meets all necessary criteria for a successful full-term pregnancy. The current guidelines are considered biased and lacking in consideration. The distinct role of women in surrogate arrangements is leading to a re-evaluation of the concept of motherhood and maternal rights.

Public Health Relevance of Surrogacy

Surrogacy and assisted reproductive technology (ART) provide solutions for infertility. The current demand for these services skews the priorities in healthcare organization, as there is pressure to implement advanced reproductive techniques in open markets and public sector service infrastructure without establishing the necessary basic facilities to prevent infertility. The underprivileged are forced to either liquidate their assets to access these facilities or exploit the opportunity to generate income by selling their reproductive potential. Women who are coerced into this process face the highest health risks. In the past decade, there has been a proliferation of fertility clinics in our country, fueling medical tourism. Surrogacy plays a significant role in attracting foreign couples seeking convenient access to surrogate mothers. According to private providers, these Indian institutions offer first-world comforts and quality at third-world prices by cutting back on essential tests and safety procedures for women. The high prevalence and poor enforcement of the ART Regulatory Guidelines-2005 have raised numerous concerns about the appropriateness of surrogacy from a public health perspective. Many issues stem from completely unregulated private ART clinics with varying costs, standards, and procedures that prioritize profits over the epidemiological needs of the majority in India. The government overlooks the necessity to prevent secondary infertility caused by inadequate obstetric services, reproductive tract infections, and poor nutritional status of women, as well as the provision of fundamental services for addressing infertility treatments. The private sector is given free rein to expand ART clinics to promote medical tourism and surrogacy, putting surrogates at risk of physical harm and complications due to techniques such as low birth weights and malformed babies, which are not publicly disclosed. ¹²The lack of transparency in surrogacy contracts increases the likelihood of legal issues, especially in cases of cross-border surrogacy involving complications related to nationality, motherhood, and child rights.

Surrogacy: Issues and Perspective

Establishing paternity through genetic testing may seem straightforward, but it poses complexities for the legal system. What happens when a non-custodial father discovers he’s not the biological parent after 15 years of believing otherwise? Can he recoup the child support payments made? Similarly, if a surrogate mother breaches her contract, can she seek financial support from the intended parents? These are challenging legal dilemmas for judges and policymakers. In India, the legal system only recognizes the birth mother, disregarding DNA testing for paternity. The birth certificate must bear the names of the birth mother and her husband. The Supreme Court’s ruling in the Manji case in 2008 permitted commercial surrogacy in India, boosting international confidence in the practice. The Law Commission of India’s 228th Report highlighted the need for legislation to regulate assisted reproductive technology clinics and surrogacy rights. It emphasized that surrogacy contracts should not be for commercial gain and should ensure financial support for the child in case of the commissioning couple’s demise. The legislation should acknowledge the surrogate child as legitimate and protect the rights of donors and surrogates. Research by Kimbrell (1988) suggests that financial need often drives women to become surrogates, with many lacking awareness of their legal rights. Horsburgh (1993) argues that surrogates face physical exploitation and inadequate compensation, especially in cases of abortion. Foster (1987) notes the emotional challenges surrogate mothers endure when giving up the child, though a study by Jadva et al. (2003) suggests that such arrangements may not lead to significant psychological issues.

Conclusion and Suggestions

In India, surrogacy operates on a contractual basis between parties. It is crucial to draft agreements with care to ensure compliance with laws. Considerations include reasons for choosing surrogacy, surrogate details, surrogacy type, paternity declaration, establishing a registry for biological fathers in adoption cases, procedures for genetic testing to determine paternity, compensation terms, provisions for unexpected incidents involving the surrogate, child custody, and jurisdiction for resolving disputes. The Indian government introduced legislation in 2008 and drafted an ART regulation bill in 2010. The bill awaits presentation in parliament, necessitating thorough discussions on legal, social, and medical perspectives.

It is imperative for the government to enact a comprehensive surrogacy regulation law in India to safeguard and support couples exploring this option. Without a robust legal framework, there is a risk of misinformation for couples and potential exploitation of surrogates.