Sanmathi S. Rao, IV year of B.A., LL.B. from B.M.S. College Of Law
Every married couple want to hear their child’s heartbeat, experience quickening, witness the formation of vernix caseosa, experience jerking motions if baby hiccups, hold their pearl in their baby for the first time, hear their child’s gibberish and giggles, but sometimes this becomes a distant dream for some.
What causes a couple to not beget a child?
There is an array of reasons like: -
Genetic Issues like Spina bifida, Scoliosis, Cleft lip or Cleft Palate and so on.
Teratogenic disorders which occur when the fetus is exposed to the substance.
Congenital abnormalities like the absence of uterus or vagina or Hermaphroditism
Multiple IVF failures
Thin endometrium which is non-responsive to medicine
Cervical incompetence causing multiple miscarriages
When In-Vitro Fertilization (IVF), Intrauterine Insemination (IUI), Intracytoplasmic Sperm Injection (ICSI) and other such techniques fail, only Surrogacy and adoption come to rescue.
What is Surrogacy?
Surrogacy is an arrangement where a surrogate mother agrees to rent her womb for Intended parent/s in return for compensation/payment.
A birds-eye on the historical evolution of Surrogacy in India
One of the perspectives of Mahabharata speculate that Gandhari was able to beget 100 sons through Cloning or surrogacy, taking this perspective is true, one can draw an inference that Surrogacy did exist in India since time immemorial. Surrogacy in India was highly uncontrolled, rampant, and lacked legislation until the “Baby Manji Yamada V. Union of India, 2008” and Jan Balaz v. Anand Municipality and 6 ors came to spotlight. In the Manji case, a Japanese Couple had signed up for a surrogacy arrangement in India, before the birth of the child, the intended parents divorced, baby Manji was unable to leave India because she held neither Indian nor Japanese nationality. The issue was resolved after the Japanese Government granted her 1-year travel visa on Humanitarian grounds after the India government granted her travel certificate. The case raised a lot of questions regarding citizenship, parentage, nationality etc., for a child born through surrogacy.
In Jan Balaz v. Anand Municipality and 6 ors, 2009, the questions regarding the citizenship of a child born through surrogacy arose, the twins were given Overseas Citizenship owing to Indian Government’s non-recognition of dual citizenship. The Twins were given the exit and entry documents and then German adoption laws followed suit. These two cases led to the genesis of legislative frameworks related to Surrogacy
The Technical know-hows of Surrogacy Bill, 2019
Surrogacy (Regulation) Bill, 2019 was introduced by the Ex-Minister of Health and Family Welfare, Dr. Harsh Vardhan. But it was not passed and since then has become controversial and hence has become a highly debated matter in India owing to the rise of feminism in India.
Surrogacy is permitted on fulfilment of the following conditions:
Intending couples with certified infertility; Altruistic Grounds;
Not for commercial purposes;
not for producing children for sale, prostitution or other forms of exploitation;
Any condition or disease specified through regulations.
There is an Embargo on International Intended parents.
The bill prohibits commercial surrogacy and single persons, divorcees, live-in couples, widows and widowers, gay couples are not allowed in its vicinity. Another preposterous condition is that couples should have been married for five years and must be certified 'infertile' to be able to “hire” a womb. The Surrogate Mother should be a close relative of the Intended Parents.
Why Surrogacy is frowned upon in Rem?
Even though most of the countries allow Altruistic Surrogacy, Commercial Surrogacy is looked upon with disdain by them. Commercializing Surrogacy is highly controversial, especially when it takes place in developing countries like India, Thailand etc., and when it is performed by local, economically weaker women for wealthy Foreign Intended Parents and individuals. It may indeed deepen gender, contribute to the stratification of reproduction[i], favouring the reproduction of rich people [ii]. There have been heated controversies on pan-national and commercial surrogacy with rhetorical focus mainly on choice, agency and the commodification of a woman’s bodies and motherhood [iii]. The radical and materialist feminists, consider it as an economic means through which the surrogate mothers move from “rags to a better life”. Some feminists also criticize the commodification of women’s reproductive body, turning women into disposable beings, living tools or baby machines, and draw parallels with prostitution and slavery [iv]. Others view commercial and transnational surrogacy in the same light as other jobs that fasten the economic and racial exploitation, such as outsourced care activities [v].
Why Adopting a Child is Better than surrogacy?
In India, the Hindus[vi] are governed under the Hindu Adoption and Maintenance Act, 1956 when it comes to adoption. Muslims, Christians, Parsis and people belonging to the other faiths are governed under the Guardians and Wards Act, 1890 and Juvenile Justice Act, 2015. In India, an Indian whether he is married or single, Non-Resident Indian (NRI), or a person belonging to any other nationality may adopt a child. Thus, there is no discrimination seen in adoption laws per se.
The Surrogacy Bill, 2019 bars single men, LGBTQ Community from going near the vicinity of surrogacy and imposes an unprecedented condition that the surrogate mother must be a ‘close relative’ of the intended parents. The Bill doesn’t define ‘Close relative’, how are they intended parents supposed to search for their close relative who is ready to rent her womb, after fulfilling the criteria laid down to be a surrogate mother? The Bill is an embargo on International Intended parents as it completely bans them from its purview.
Why go forward with Surrogacy amidst so many restrictions when adoption is a less hassled option compared to it? Why spend 10 lakhs to 15 Lakhs on a surrogacy agreement when you adopt a child by a lesser cost (40,000 to 90,0000 and a much hassle-free process? In Countries where Surrogacy is legalized, the surrogate mother is psychologically counselled by a professional throughout the 40 weeks, but developing countries like India can’t provide this ‘extra cushion’ to all the surrogate mothers in toto.
A surrogate mother is compared to an adulterous woman by society. The Surrogate mother has to face a lot of moral, ethical prejudices set by the society
In Altruistic Surrogacy, words like ‘expenses and Health Insurance’, are used and in Commercial Surrogacy the words like ‘Payment’, Compensation is used, what sets apart Altruistic Surrogacy and Commercial Surrogacy is the mere usage of words. The activists who advocate Surrogacy have put forth a condition stating that a Surrogate Mother must get at least a fixed amount for being an ‘oyster which produces the pearl but doesn’t own them’, thus indirectly commercializing Surrogacy. Altruistic and Commercial Surrogacy is Identical Twins with a slight difference in their makeover.
What will happen to the child if the intended parents get divorced and both don’t want to take the custody of the child? Will the responsibility of such a child go to the agency or will it go to the surrogate mother or will the child be abandoned by all the stakeholders?
What will happen if the child born turns out to have Genetic Glitches or Down syndrome or Autism Spectrum Disorders or other bodily deformities like Spina Bifida, Scoliosis, etc., will the intended parents want such a child or will the surrogate mother abort such a child if asked to, what if the surrogate mother refuses to look after the child once it is born? In Thailand, the Baby Gammy case became sensational when the surrogate mother refused to abort the twin child with Down Syndrome because of her religious beliefs. The Intended parents abandoned the child and took away the other twin with them, the surrogate mother started a fund-raiser program for Baby Gammy, which prompted Thailand to come out with a bill related to surrogacy.
According to the UNICEF, India has 2.96 Million orphans, the orphans in India are forced into child prostitution, human trafficking, heinous acts like illegal organ donation, maiming etc., why can’t we go forward and adopt which can become a solution to curbing those evils. There are 2,96 Million orphans, waiting to become a doctor who serves the community, or a lawyer who bends the law but doesn’t break it, or a singing sensational, or a politician who creates a better future for his countrymen, or a teacher who reaps thousands of young minds of tomorrow, or a scientist who makes this world a better place through his invention, or a diplomat who solves international conflicts through Diplomacy and not War, so why add to the world’s population by allowing surrogacy when you can decrease the percentage of orphans in the world by adopting them.
[i]Colen S. “Like a mother to them”: stratified reproduction and west Indian child care workers and employers in New York. In: Ginsburg FD, Rapp R, editors. Conceiving the New World order: the global politics of reproduction. Berkeley: University of California Press; 1995. p. 78–102.
[ii] Rapp R. Gender, body, biomedicine: how some feminist concerns dragged reproduction to the Center of Social Theory. Med Anthropol Q. 2001;15(4):466–77.
[iii]Borrillo D. Disposer de son corps: un Droit encore à conquérir. Paris: éditionsTextuel; 2019.
[iv]Corea G. The mother machine: reproductive technologies from artificial insemination to artificial wombs. New York: Harper and Row; 1985.
[v]Satz D. Markets in Women's reproductive labour. Philos Public Aff. 1992;21(2):107–31.
[vi]Sec 2 of Hindu Adoption and Maintenance Act, 1956. Application of Act- (1) This Act applies- (a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, (b) to any person who is a Buddhist, Jaina or Sikh by religion, and (c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.