Legal regulation on surrogacy and reaffirming motherhood: Conflicts and Contradictions
October 21, 2009
By Rukmini Sen. Columnist, Sanhati
There has been a recent proposition to legalize and regulate surrogacy in India. According to the Black’s Law Dictionary, surrogacy means the process of carrying and delivering a child for another person. The New Encyclopaedia Britannica defines ‘surrogate motherhood’ as the practice in which a woman bears a child for a couple unable to produce children in the usual way. The Report of the Committee of Inquiry into Human Fertilization and Embryology or the Warnock Report (1984) defines surrogacy as the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth.
The government in its 228th Law Commission report is giving an interesting reason as to why surrogacy laws need to be in place. One can see how the logic is shaped by the glorification of motherhood, being made to be constructed as associated with complete Indian womanhood.
The growth in the ART (Assisted Reproductive Technology - Ed.) methods is recognition of the fact that infertility as a medical condition is a huge impediment in the overall wellbeing of couples and cannot be overlooked especially in a patriarchal society like India. A woman is respected as a wife only if she is mother of a child, so that her husband’s masculinity and sexual potency is proved and the lineage continues. Some authors put it as follows: The parents construct the child biologically, while the child constructs the parents socially. The problem however arises when the parents are unable to construct the child through the conventional biological means. Infertility is seen as a major problem as kinship and family ties are dependent on progeny.
The above quote reinforces that if women do not bear children then their husbands’ sexual potency is at stake. Thus, in order for an Indian family to get legitimacy and acceptance in society, the presence of a child is essential. The Indian government’s sudden suggestion to have a law regulating surrogacy has two main reasons:
* The growing surrogacy market, recognizing that Anand in Gujarat has been established as a commercial capital of surrogacy in India. According to the Law Commission Report, ART industry is now a 25,000 crore rupee pot of gold. Anand, a small town in Gujarat, has acquired a distinct reputation as a place for outsourcing commercial surrogacy. It seems that wombs in India are on rent which translates into babies for foreigners and dollars for Indian surrogate mothers.
* To protect the conventional family structure in India—a heterosexual married couple with a child/children
However, the definition of “couple” according to the proposed bill is, persons living together and having a sexual relationship that is legal in the country / countries of which they are citizens or they are living in. Marriage is not a pre-requisite to being considered a couple. In fact, heterosexuality is also not a given according to this definition. Moreover, since the bill proposes a definition of ‘unmarried couple’ meaning a man and a woman, both of marriageable age, living together with mutual consent but without getting married, it gives legal recognition to live-in relationships and subsequent status of parenthood through surrogate help. The law therefore is a reflection of tradition-modernity continuum like various cultural issues in India. On the one hand surrogacy is accepted to give legitimacy to masculinity in Indian patriarchy and on the other hand the same male-centred law provides scope for unmarried couples to have children through surrogacy. This dichotomy represents the innate binary positions that run through most laws in India—balancing commercialization with the function of motherhood.
There are certain rights that a child has according to the proposed bill keeping the best interest of the child philosophy in mind. However that is restricted to the question of legitimacy only:
(1) A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through sexual intercourse.
(2) A child born to an unmarried couple through the use of assisted reproductive technology, with the consent of both the parties, shall be the legitimate child of both parties.
(3) In the case of a single woman the child will be the legitimate child of the woman, and in the case of a single man the child will be the legitimate child of the man.
(4) In case a married or unmarried couple separates or gets divorced, as the case may be, after both parties consented to the assisted reproductive technology treatment but before the child is born, the child shall be the legitimate child of the couple.
The major concern as reflected above is that of legitimacy and it is reasonably so since society is new to the idea of children within wedlock but not as a result of biological reproduction. Adoption has never really been popular in India. In fact with the legalization and regulation of surrogacy probably would become more acceptable than adoption primarily because there could be an indirect link established with biological parentage, rather than adopting a complete stranger’s kid. Given that there are various complications of having a uniform adoption law in India since it comes within the personal law ambit, yet there have not been such proactive efforts taken by the Indian government is discussing adoption more openly at least at the policy making level. The Juvenile Justice Act, 2000 has a mention of adoption and it is presently the only Indian law through which couples from any community can adopt.
Another set of complications that legitimately shall arise in case of surrogacy is the conflict between the surrogate mother and the genetic parents. This may lead to divided interests, the usual probability of developing a ‘motherly’ instinct for the child and claiming certain rights, etc. The bill proposes that a surrogate mother shall relinquish all parental rights over the child. The signing of a contract legally makes it possible to avoid these complicacies, however does not eliminate it completely because it is difficult to legally regulate human emotions. The bill proposes an age limit for a woman to be a surrogate mother, which takes into account the medically understood most fertile period of a woman, and also the minimum age limit of a girl in India. The law proposes that no woman less than twenty one years of age and over forty five years of age shall be eligible to act as a surrogate mother.
What is exceedingly interesting is the definition of infertility–the inability to conceive after at least one year of unprotected coitus. This reinforces definitely one myth that married couple usually desire to have children ‘soon’ after marriage. It has to be remembered here that this bill does talk about both married couples, unmarried but living together partners and single individuals.
A detailed assessment of the bill will definitely bring to light many more areas of contradictions. These are just a few examples. It seems that the bill has been proposed in a lot of haste, it assumes certain social trends have been accepted in India and strengthens certain traditionally held notions which have been systematically critiqued by feminists in India. Thus if at all we need a legal regulation, it needs to be much more well thought out, with more dialogue between the stake holders. This still seems to be the brain child of Indian Council for Medical Research.
Reference:
Government of India Law Commission of India, Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy report no. 228, August 2009 available online at
The Assistive Reproductive Technology (Regulation) Bill, 2008 available online at http://lawandotherthings.blogspot.com/2008/10/draft-art-bill-2008.html
December 21st, 2009 at 8:57 am
Thanks for sharing these information in this article.
It was very nice……
January 7th, 2010 at 6:28 am
Great Post…..
I found your site on stumbleupon and read a few of your other posts. Keep up the good work. I just added your RSS feed to my Google News Reader. Looking forward to reading more from you down the road!
Thanks for sharing….
May 25th, 2010 at 5:21 am
Economical concerns of surrogacy in India
.
The industry of infant trade, ie baby farming, is not bringing money in to the hands of poor . The compensation they get is very less compared not only to the international standards, even under Indian standards. But the economic compulsion makes them to take this rute.This can be solved if the visiting rights of the surrogate mother is made un swappable to any amount of money , and the practice is stringently followed
The woman gets around Rs. 3lakhs for making a baby.
Days involved in making a baby =About 276
Days for tests = A month =30 days.
It is better to have rest period of at least 60 days after the child birh.
Totally 366 days of work to bring a child into the world.
This work is a continuous 24 hours a day .
So in a single day woman works three shifts at least.
No holidays through ought the work period .when we calculate the holidays and lunch breaks during work
3 hours of lunch break every day ( woman works for 3 shifts)
this 3 hours should be multiplied with days
3*366 =1098 hours that means about 84 days of work
Add this to the 366 days calculated earlier 366+84= 450 days of work.
Then the compensation for general holidays Sundays etc work out to be another 70 days
Totally it will be a continuous work of 520 days. Now a days no farm worker doing laborious tasks work more than 6 hours a day . ( I am in management sector of farm industry so I know the inner work schedule ) To equate the work of child farming with the farm industry Multiply the 520 days of work with 24 hours a day and divide it by 6 hours then
520*24/6 =2080 day of work.
The woman gets 3 lakhs then her daily wages will be
3,00,000 /2080 =144.23
Rs 144.23 is comparable with the minimum pay prescribed the govt. of India , but work is not comparable for any other works.
This is just for work no emotional attachment / concerns etc. The farm work commonly does not have any life threatening conditions like pregnancy. If the woman has to have a C section , life threatening consequences etc are not at all paid. Is is not a form of exploitation?
There are every chance of woman being emotional or physical wreck but who is going to pay for it ?
Where is the compensation for the emotional trauma she has to undergo for the rest of her life?
In our so called International baby farms after contracting the woman they keep them in houses along with other such women food and T.V entertainment provided and call as
motherly care.
This is just prevent them eating something undesirable , to get them away from having abortion, Or just prevent them from running away. Is it not cruelty against humanity?
In olden days even the slaves were fed and provided shelter.
Now conceder cost of international clients .
A baby that comes to this world comes here with mouth and two hands work.
The international clients pay around Rs 8 lakhs to get a baby that works about $16000.
For the amount we are loosing one human being.
You can not say otherwise that human being wouldn’t have come and we would have lost even those $16000.
Conceder the scenario
Because of the high profit international clients these farms farm babies for them.
Infertile Indian couple who can not afford those costs forgo there own baby.
They remain unhappy let us presume.
This unhappiness leads to less productivity Loss for the Indian economy.
The human being that would have come to life in this country and have contributed to the welfare of this country is transferred elsewhere.
Loss to the Indian economy in the log run. Presumption is that the baby would have done well in life and earned more than for what it has been sold.
This case is very probable because the Indian middle class can not invest about 8 lakhs on a baby. But if the baby is born they can bring up it well and the baby earns more than this amount within years. As the children support their parents in old age the burden on the government to support the elderly is lessened. So profit to the government.
A small calculation
Baby created and transferred to over sea clients fetches about 8 lakhs.
Let us assume the same baby is created for a middle class family of India having a household income of about 8 lakhs per year.
Spending on the education and other needs of the baby till it attains working age let us assume about 1.5 lakhs per year this works out to be around 30 lakhs. This is the expenditure of the family not that of the govt. Any how they would have spent it so we can safely say there is no profit or loss as for as the economy is considered .
From the point of national economy the expenditure is nill.
The baby let us assume groves and gets a job paying About 40000 a month just like its parents.
(Don’t ask me why it should not get a lees paying job, if it is your question my answer is why the baby should not get a very high paying job or why it should not become a scholar ,scientist, researcher and earn a lot more than the assumed salary.)
40000*12 months =4.8 lakhs per year
For the sake of calculation let us assume the salary remains the same for the working life of the child and child works for 30 years.
Then 4.8*30=144 lakhs.
So the opportunity cost of a baby is a loss of Rs.1.36 crores. For the economy.
So it is just a myth that economy is gaining from International baby trade.
Because of the this trade Indian couples are loosing an opportunity to have their own child. It has been written in some propagating websites that the trade is beneficial for both the sides they are true. Those are the sides of baby buyers and ART centers not the women who are forced to become surrogates.
While giving visiting rights to the mother care should be taken to transfer her rights to her spouse or nominee in case of her death during labor. Or related incidents otherwise the ART centers may resort to the easy route of killing the mother at birth.
The process of Pregnancy and child hand over is not as straight as they advertise in the promotional literature. So the attrition rate of workers at those centers is very high. They wont talk about the conditions inside the center for the fear of their life.
Genetically the westerners are bigger than Indian women. So their fetus will be bigger than what an Indian woman carry for a full term. The method of making her to carry it is grow the embryo in her over 7.5 months and induce miscarriage. The argument for this is there will be less labor pain there will be miscarriage in nature etc. To do this they add medicines in her diet without her knowledge and also without the knowledge of the person who feeds her. Don’t you think that it is a direct onslaught on her liberty?
The embryo does not belongs to her so there will not be any association with the baby is another argument.
You wont have anything genetically common with your spouse don’t you have attachment with him or her.
Most of the men are ready for helping the woman for over a long period. There are incidents of men hiring private detectives and searching the woman who has given birth to their child just help her financially. Then why the So called ART centers should be secretive?
The reasoning is it is difficult to get surrogates and ones a woman becomes surrogate these centers are very keen to make her surrogate for next harvests.
By providing mandatory visiting rights for the surrogate mothers this practice can be controlled up to some extent. These visiting rights should be transferable to the spouse of the woman or her nominees . In case of over sea customers The ART centers should be made responsible to provide travel allowances documentation etc. It will be very difficult to monitor the things so it can be made self regulatory by making the Surrogate mothers their spouses ,the intended parents and the representatives of ART centers to visit a registrars office and sign the documents in presence of the officer concerned.
Argument against it may be The social stigma attached with it may be harmful for the surrogate mother, The presence of the surrogate mother in the scenario may lead to the break in the family of intended mother. Or the surrogate may exploit the family of child after child birth etc.
If it is social stigma why the trade /occupation should be there at all . The only other two professions having social stigma are manual scavenging and prostitution. Can anybody legitimately approve those occupations as occupations. If the social stigma attached is the concern of the ART centers this has to banned ought right.
If the presence of the surrogate spoils the family let that family perish. The family should be raised on the basis of broadmindedness ,Truth and frankness. Not on the basis of arrogance of wealth, selfishness and greed.
Surrogate may exploit the family , if it is the reason she is taking something from the child whom she helped to bring into this world it is her legitimate right. Though you have made an agreement against it by encashing her poverty.
No way I am equating surrogacy with prostitution but the line separating them is very thin.
Prostitution Commercial surrogacy
The woman bears the child of unknown parentage Father of the child not known Yes Yes in anonymous surrogacy even the mother wont be known
Woman bearing the child is in no way connected with the upbringing of the child Mostly true because of economical reasons True because she has been forced forced to do so by the way of an agreement.
Woman wont be able to keep the child if she has emotional connections with it Mostly true True
There will be violation of personal liberty /body Yes Yes what about the forced miscarriages
Emotinally taxing for the woman Yes Yes
Women are exploited Yes Yes just see about the money the woman gets for caring the child (3Lakhs)
Woman who looks after them (2.5 Lakhs)
General practitioner who brings her in (50000)
Clients are charged will be around 16 to 20 lakhs
Poverty drives them to take the profession Yes Yes
Legality Govt.has banned it Govt is supporting.
Brings happiness into the families Mostly not true Questionable.
The woman having no child feel miserable I agree, they should be given an opportunity to have their own biological children is agreeable , But at the cost of a poor soul is not palatable for me. It is true even with the husband of the woman near family friends even with the woman , when they have a little bitterness about the origin of the child how can they be happy over a long run?
In the long run somebody or the other will tell the child about its origin, and what those parents can say if it was anonymous surrogacy? They stand as liars , in the eyes of their own child. This brings emotional turmoil for the child and parents.
Commercial surrogacy is not a boon to the uneducated poor of India
The countries which have banned commercial surrogacy on their soil are exporting it to India .Don’t you think it as ought right racism they are discriminating against the poor of India. By asking our poor to do what they don’t want to be done by their fellow citizens.
Even among those surrogates hired by the so called ART s how many belong to the upper class /high caste may be almost nil. Nobody from wealthy sections of the society take it as occupation. So it is a discrimination against the low caste poor . Mostly the beneficiaries are rich and affluent high caste families.
Intended parents I am not at all against you or your right to have biological children if you are from India . I am arguing for making the things palatable for the surrogate mother for you for and for the child born out of the arrangement.
Just make an attitudinal change the things become very clear .
Intended parents in your view the surrogate mother should be venerable than the mother nature
The nature had not given you an opportunity to have your own child. But this woman is bestowing it upon you . She is undergoing pain effort and emotional turmoil of separation from the child just to make you happy. She is giving an invaluable gift to you. May be a gift you could not get from your relatives, friends , acquaintances and co workers or from any other person known to you.
Then why Measuring it with one time payment of some money?
Why the woman has to be treated as an employee who has to be fired after getting the work done?
What is the problem in accepting her presence as reality?
It will bring satisfaction even to you that you stayed frank about the birth of your child and had helped the woman who has helped you.
Why it is not possible to friendly with that poor woman when she has given a gift of immense value for you?
You may be a high profile person she may be economically poor but she is richer than you by giving a baby to you. After all your wealth is for the welfare of the baby isn’t it ?
A child in a rich affluent family having links with a poor so called low caste family may help in mingling of the castes . This will lead to better understanding between the rich and poor the so called low borns and high caste people.So It is very much essential to make the visiting rights of the surrogate mother to her child. In the long run it will sociologically beneficial.
Now I remember two stories from Indian mythology One is that of Kartikeya and other is tat of Duryodhana.
For the benefit of the ones who may not be aware of the stories
Kartikeya is the commander of the army of the gods and he is the god of fertility by tradition .Kartikeya is also called as subramanya swamy.
He is the son of Shiva the father of universe and Parvati The mother of universe.
When the gods request for child for the post of their commander Shiva gives a bija let us say a fertilized egg for the arguments sake. That will be implanted in Mother Ganga .River ganges.As the Godess of the river stays in the matted locks of Shiva A known surrogate.After sometime it becomes unbearable for the surrogate mother Ganga to carry the embryo.
She makes a miscarriage .
Then the god of fire Agni keeps the embryo on Saravana( A kind of grass believed to have the potential of nectar.) Let us take it as incubator.
Here the Sapta matrakas feed the child. Nurses or the care takers .
Then The god Kartikeya is born .Here all the parties involved have been given due respect and Shiva has keeping the surrogate mother of his child on his head even today that too in the presence of Parvati his wife .But the child born out of this arrangement is revered by all. A good child who won over the demon king Tarakasura. May be a symbol of demonish instincts of humans.
Another is that of Duryodhana the son of Dritarashtra and Gandhari The kaurava kings. According to the story out of jealousy over Kunti devi the another daughter in law of the family Gandhari rubs her uterus and makes a miscarriage .The embrio was split into one hundred pieces by the sages (doctors of the day) and implanted in one hundred Kumbhas (anonymous surrogates) No respect was given to the surrogate mothers they might have carried it till maturity for the fear of the king(Your agreement Guaranteed by the Government)One hundred children are born to Gandahari.As the surrogates had no interaction with the children they might have suffered in silence.
Duryodhana being the eldest of these children grows as an arrogant unreasonable and selfish person. He inflicts war of Kurukshetra on his kingdom .In the war he was killed along with all his siblings bringing untold misery To Gandhari.Now duryodhana is hated by all as the destroyer of the dynasty.
From this one has to be remembered is that if you inflict pain to others it comes to you multiplied by a hundred times.
Society needs children who grow into venerable ones not the destroyer of the clan. So it is very much necessary to give due respect to all the parties involved.
By making it mandatory un swappable right for the surrogate mother to visit the child born out of surrogacy , society gains .
Further govt can ban the right of gay dads hiring surrogates in India.
It can be made mandatory for a woman not to rent her womb more than once.
And banning the people hiring another woman for making a sibling for the child can be thought of. Already the planet is brimming with humans.
Rent a womb contract is just another form of bonded labor disguised under nicely formed jargon
In this contract womb may be the place where you keep the pre fertilized egg for development. For the womb to work other organs of the woman has to function. Womb can not survive without food , without air ,without circulation ,without endocrine system you can keep all other systems of the human body. So in the name of the womb you are hiring the human body. People wont say it as hiring the human body to develop their child just because it is against the law. What ever may be the jargons the reality remains the same .If you accept the fact there is no need for another law to ban the contracts. The existing laws against bonded labor are enough.
After all which other employment requires you to under go a series of operation injections tests etc and to leave emotionally and bodily wrecked after a C section.
June 14th, 2010 at 5:53 am
The ART bill provides that foreign couples obtain a document from their embassy stating that the surrogate child will be granted the country’s citizenship. This document is a must-have for securing a surrogacy agreement with any ART clinic. I read some on http://www.lawisgreek.com/indian-laws-and-social-perspectives-on-growth-of-surrogacy-india/