By Athik Saleh T
Introduction
The word surrogacy originated from the Latin word “surrogatus”, which literally translates to “a person who is a substitute for another”. Black’s Law dictionary defines Surrogacy as the process by which one person carries and delivers the child for another person.
Surrogacy has always been in the limelight for all the wrong reasons. A means of Assisted Reproductive Techniques (ART), this practice is more often than not referred to as ‘renting a womb’.
A matter with a plethora of related dilemmas ranging from legal to social. As is the case with various issues, the developed nations of the world have strict regulations when it comes to ART and especially surrogacy.
These strict regulations force many prospective parents in rich first-world nations to look for alternatives. If there is one thing more certain than death, that is third-world countries and their lawlessness or lack of regulations (when compared to developed nations).
More often than not, developing countries take a long time to catch up with the changing reality. It is the same when it comes to surrogacy too.
India is famously or infamously (depending upon from what angle you look at it) known as the capital of commercial surrogacy. It is a fitting name for a country where the largest number of commercial surrogacies happens. An unregulated industry that is worth billions of dollars, commercial surrogacy in India is a necessary evil for different parties involved.
In India, commercial surrogacy became legal in 2002 as an initiative to promote medical tourism. Since then, there has been multiple attempts to regulate this industry for the sake o0f various stakeholders involved. This has culminated in the “Surrogacy (Regulation) Bill 2020”.
In light of this development, it is important to understand the reality of how this industry works. The reality of the surrogates.
What is Surrogacy?
As mentioned above, surrogacy is the process by which intending parents commission another woman to carry and deliver a child for them. The process of surrogacy can be of two kinds:
- Traditional surrogacy, and
- Gestational surrogacy
The earliest mentions of traditional surrogacy are found in the Bible and Quran, in the story of Abraham and Sarah. The biological mother of the child in traditional surrogacy will be the surrogate mother. The surrogate mother is artificially inseminated by the intended father.
Therefore, the genetic material of the child will be a mixture of the intended father and the surrogate mother.
Gestational surrogacy, however, is a different form of surrogacy where the surrogate is nothing but a carrier of an embryo that has the genetic material of the intended parents. In this kind of surrogacy, the surrogate is impregnated through in vitro fertilization or other similar procedures.
There is another classification of surrogacy based on whether the surrogate mother is paid or not. Accordingly, there are two kinds of surrogacy, and they are:
- Altruistic surrogacy, and
- Commercial surrogacy
In an altruistic surrogacy, the surrogate mother is not paid by prospective parents. On the other hand, in commercial surrogacy, prospective parents pay the surrogate mother for the service she renders.
Our discussion will be mostly centered around commercial surrogacy as that’s what India is famous/infamous for. Any discussion about commercial surrogacy will have to touch upon altruistic surrogacy as that’s what the new surrogacy bill proposed to do.
Why is India an Attractive Market for Surrogacy?
The first question that comes into the mind of anyone who hears the phrase “capital of commercial surrogacy” is that why is it called the capital of commercial surrogacy? It is one thing to be a third-world nation where regulations aren’t as effective as a developed country and is more welcome to intended parents, but it is an entirely different thing to be called the capital.
As mentioned earlier, India’s tryst with commercial surrogacy began in 2002. The Government wanted to make India an attractive destination as a part of its medic-tourism initiative. Commercial surrogacy was legalized as a part of this.
The growth of the industry shouldn’t surprise anyone as India has everything that is conducive to its growth – qualified doctors, hospitals that can provide high-quality treatment and care, comparatively cheap processes, and most importantly, poor women who are ready to accept the role of surrogates.
In what can be looked at as the ultimate outsourcing, India is the most preferred location for intended parents from western nations.
Although domestic demands for surrogates have increased over years, the declining fertility around the world makes the distribution between global and domestic demands at almost even 50 percent each.
As is the case with every other industry, growth usually means one thing – the most important party involve is exploited. In the case of surrogacy, the most important party is the surrogate mother. As the industry grew, exploitation of these women too grew.
In a country like India where women are already marginalized and looked at as second-class citizens according to age-old notions of patriarchy still embedded in the society, it is not difficult to take advantage of them.
Another factor that plays in furthering India’s reputation as a great market for surrogacy is the regulations in place in other countries. Different countries have regulated surrogacy to varying extents. For instance, surrogacy remains an unregulated affair, but different regulations exist in different states and hence, makes it a cumbersome affair.
Not only that, but it must also be kept in mind that surrogacy in the US will cost around rupees crore while in India, it won’t be even one-fourth of that amount.
Regulations in Europe are more stringent. Countries like Norway, Sweden, Italy, and France have completely prohibited surrogacy. On the other hand, there are countries like the UK that support only altruistic surrogacy.
There is a limit of 10,000 pounds that prospective parents can spend on surrogacy which leaves almost to no money to the surrogate. As a result of this, fewer and fewer number women are interested in carrying and delivering the child for others.
It is in this context the large share of cross-border surrogacy in India must be looked at.
The Bleak Reality of those who “Rent Their Wombs”
The main factor in realizing the dream of every intending parent is the availability of a surrogate. In India, they are the most forgotten and exploited. More often than not, they are considered as a tool to achieve the end goal. There are many instances where their sufferings are unnoticed and unreported.
Studies have shown that most women who choose to become surrogates have certain common characteristics. They are mostly married or divorced or are not living with their husbands.
Most of them have at least one child. Most of them are Hindus while some of them are Muslims or Christians. Although there are variations in their education levels, a large chunk of them is either illiterate or have only primary level education.[1]
Money is an important motivation for most of these women. They choose to be surrogates because they tend to earn amounts ranging from $2300 to $10,000. The pay they get from carrying and delivering a child is way more than what they earn from their previous jobs.
From the discussion above, it does seem that the women who choose to be surrogates make it better for their dependents with their choice. The reality is slightly bleaker than what has elucidated above.
More often than not, the surrogates are left to dry. In a reported case, a woman was admitted to a hospital after the birth of the child. The child survived but the woman died. As far as the people involved in the procedure were concerned, according to them, she completed her task.[2]
Various stakeholders involved in commercial surrogacy tries to play down the exploitation of women by alluding to the fallacy of “free choice”.
In a society like that of India, it is important to ask the question of whether women really have a free choice. In Indian cities, even in the large ones, it is not impossible to find agents or contractors who will claim of having hundreds of women who are ready to be surrogates.
The most common occurrence in the case of surrogacy in India is that the agents take the lion’s share of what’s paid to the women. Women who are under the control of these agents are subjected to more than one surrogacy and more often than not, there won’t be a healthy gap between consecutive surrogacies.
Another issue faced by most women is that at times the intended parents refuse to take the child with them after birth or back out of the agreement they had with these women.
Since these women are mostly illiterate or impoverished, they will be unable to seek any legal recourse. Lack of regulations regarding the same doesn’t help either.
Conclusion
Our discussion was about an issue that has been present in our country from the beginning of this century but only gain traction after the Supreme Court judgement in Baby Manji Yamada Vs. Union of India[3]. The ethical and legal problems related to surrogacy, especially the kind of commercial surrogacy India is popular for, are a lot.
The Government of India’s Surrogacy (Regulation) Bill, 2020 seeks to address some of the problems faced by surrogates. However, instead of addressing the real issues, the bill simply makes surrogacy altruistic. Most women in India who choose (or forced) to become a carrier for money does it to fulfill their need.
By creating a romanticized notion of surrogacy as if it is something that women should be doing for some noble reasons than for money is purely paternalistic and patriarchal.
The real issue women who agree to become surrogates face is that they are exploited by everyone from their family to the medical practitioner. It is from this that they need protection.
It is easy to talk about the reproductive rights of women but in a developing country like India where poverty is still one of the biggest issues faced by the population, a balanced approach where rights and regulations are present is required.
Rights of the vulnerable population are more often than not it exploited by those who seek to take advantage of their rights. Protection to women who act as surrogates must be multifaceted.
It must move away from romantic notions of what a woman must do and must move towards the practical reality of these women.
References
- hindustantimes.com
- time.com
- ncbi.nlm.nih.gov
- blogs.lse.ac.uk
- jagranjosh.com
- theguardian.com
- thelancet.com
- Rozee and Unisa, “Surrogacy as a growing practice and a controversial reality in India: Exploring new issues for further researches”, available on: researchgate.net (last visited on July 20, 2021) ↑
- Kishwar Desai, “India’s surrogate mothers are risking their lives. They urgently need protection”, available on: theguardian.com(last visited on July 20, 2021)
- Baby Manji Yamada v. Union of India, Writ Petition (C) No. 369 of 2008 (Supreme Court of India). ↑