Surrogacy Law in India: Vinay Kumar

SOL (1)
by Vinay Kumar
Submission date: 04-Mar-2020 01:26PM (UTC+0530) Submission ID: 1269030919 File name:
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Surrogacy Law in
India
Introductio
n:
Indian society is considered to be economically feeble, but ethically and
traditionally it is very potent. It i s a society which boasts of its ideologies and
its anxiety for the welfare of all. T he question arises, how a country with such
an ideology can legalize renting or loaning a womb of a women's body.
Through this article we aim to draw the attention of the readers towards
the growing idea of commercializing s urrogacy, firstly, we will be presenting
the comparative view of both the thoughts, the one that is in favor of
legalizing surrogacy and believes in the liberty of individuals, the other
which oppose the above on the grounds of morality and ethics. We
also aim to enlighten the readers by screening through this article the
brighter and the darker side of the commercialization of surrogacy and
we will be further justifying, through various political ideologies and social
implications that commercializing or s elling a womb of a women's body is
against the natural process and each and everything present on this earth
naturally are not preordained to be bought and sold by humans. We will
be picturising that the trading of body parts of a

human being; in case of
surrogacy, the womb of a woman can lead to c atastrophic effect on the
Indian society. And India, has become the market of surrogacy,
contemptible and proficient, we will be critically analyzing the Assisted
Reproductive Technologies bill, 2010 that legalize money-making
surrogacy in India.
“The labor of bearing a child is more intimately bound up with a women's
identity than other types of labor. The work of pregnancy is long
term, complex and involves an emotional and physical bonding between
mother and fetus." Margaret Jane Radin and Carole Patemanstress
Commercialization of surrogacy is a contemporary legal issue, as

there is a recent development in the ART technology, and thus,
the proper laws regarding this issue has to framed as it is a very
sensitive issue bearing with many social, legal, moral and political
implications. Through this article we indented to bring the attention of t he
overnment officials or the public at the large, towards the
readers, g
Assisted Reproductive technology bill, which was proposed in 2010. This
bill claims for insuring the medical, social and legal rights of the surrogate
mother and the genetic parents. In the projected bill various
guidelines are laid down related to the procedures that the ART
clinics have to follow. It includes the rights, duties, offences and
the penalties the ART clinics, genetic parents, donor and the
surrogate mother hold and has to follow. Also, in the last nearly 20
years have seen an exponential growth of infertility clinics that use
techniques requiring handling of spermatozoa or the oocyte
outside the body, or the use of a surrogate mother. As of today,
anyone can open infertility or assisted reproductive technology
(ART) clinic; no permission is required to do so. Therefore, it
becomes essential to regulate and keep the check on the clinics, so
that the services they are providing are ethical. In the proposed bill, due
moral, social and legal concern has been taken by the drafters,
but the bill lacks on certain aspects like due compensation to the
woman . In the west up to 50 per cent of the total cost goes to the
surrogate mother while in India m
ost of the money is
appropriated b y sperm banks, ART clinics and lawyers. The Assisted

Reproductive Technology (Regulation) Bill 2010 has not touched many
of the ethical and social issues related to surrogacy and the rights of a
woman and a child. It p
articularly provides for an
agreement, legally enforceable where the surrogate mother can receive
monetary
compensatio
n.
Commercial surrogacy in India, dubbed as the "surrogacy capital of the
world", is projected to become a whopping US$2.3 billion industry by 2012 .
In India poverty rate is 32.7%, i.e. this no. of people lives below the
International poverty line thus, and such high level of
poverty level makes Indian citizens prone to exploitation from the western
countries.
The question here arises is that if the Indian government is legalizing renting the
women's womb that why we can't we legitimize the renting of women's
body i.e. prostitution. Or selling
and buying o f organs.
Transplantation of Human Organ Act, 1994 has banned the
sale of human organs, organ loaning, but the legalization of commercial
surrogacy as per Assisted Reproductive technology Bill, 2010 is
rendering the above act void. King Solomon had a case to decide
where there were two claimants of a baby. The fate of this baby was
in the hands of the king, the claimants of the baby were not ready to give up
their respective claims on the baby and hence, the king ordered the baby to
be separated into
two e qual halves and give each claimant their shares. The mother on hearing
this w as shattered and she immediately gave up her claim on the baby.
King Solomon gave up the baby to this woman who was the actual mother
of the baby. This case which was decided by the King to meet the true
ends of Justice also highlights another phenomenon which is the
relationship a mother shares with her child and this very special bond
especially in the Indian
conte
xt
hold
s
a
ver
y
vita
l
plac
e.
Giving birth to a baby is not a manufacturing process rather it is the
amalgamation of a very special bond which starts to develop when
the fetus is in the mother's womb. "Surrogacy", means an arrangement
in which a woman agrees to a pregnancy, achieved through assisted
reproductive technology, in which neither of the gametes belong
to her or her husband, with the intention to carry it and hand over the child to
the person or persons for whom she is acting as a s urrogate.
According to t he ART bill, 2
010, estimated data of t he infertility rate is
15% of the w orld. Total f ertility rate of India i s 3 per woman,
whereas, the fertility rate per woman is 2 in United State.
Moreover it is to be noted that the rate of infertility in India is due
to the lack of proper health care facilities and not because of biological
reasons. A country that has fertility rate of 3 per woman and the
population of 1,241,491,960 is not in any need of promoting
surrogac
y.
Adoption V.
Surrogacy
It is estimated that there are 160 to 200 million orphans worldwide . To have
an idea of the
enormity of the numbers compare it with the population of U nites states which is
just 300 millions. Also, it is believed that most of t he orphans, due to
lack of care and affection, divert into criminal activities, which is again
the problem that any society or state has to face. There are over 25
million orphans in India. 5,000 children under the age of 5 die every
day in India
due to preventable causes. More than 60% of women in India are chronically
poor. India has the highest child malnutrition rate of the world's regions.
Indian government, instead of promoting commercialization of
surrogacy, should divert its concentration towards the improved
health facilities of the millions of w
omen and children. In India, the
infertility rate is estimated to be 1 0% in Indian women 98% have
t hey have been pregnant at least once
secondary sterility
before but are unable to conceive again. Their
problems are due to untreated disease, poor health care practices
or malnutrition. Most of these can be a voided through effective antenatal
and postnatal care and through good primary health care with basic facilities
illions of children are living without love,
to diagnose and treat infertility. M
affection and proper care all over the world, thus any government or
authority instead of encouraging the complex process of
surrogating, which can render the health of the surrogate mother, the
child in risk, as bearing the child is a very complex and a risky
procedure. Also the Mother Mortality rate in India is 253.8 , which is
very high as compared to the f irst w orld nations. In Italy it i s only
3.9, whereas in US 16.6. T
hus, as per the Indian medical conditions,
there is a high threat implicated to the woman's
health
,
wh
o
i
s
beari
ng
a
child.
Indian government, instead of catering the needs of the western society for
the need of the concentrates its attention towards
child,
requirements of its citizens. Surrogacy can be opposed on various
grounds one such reason is that surrogacy is e xploitative.
Outsourcing surrogacy to India further degrades the women and takes
advantage of their poverty and lack of opportunities. The status of women in
India is already brow
beaten and critics of commercial surrogacy put forward a common objection
that gestational labor i s different from other types of labor. A divide
of the feminists believes that surrogacy brings with it a freedom of
the woman to choose and thus promotes gender equality. Satz
strikes on this contention,” commercial surrogacy allows women's
labor to be used and controlled by others and reinforces stereotypes
about women, e.g.:- pregnancy contracts give buyers substantial
control rights over women's bodies, right to determine what the woman
eats, drinks, reads, etc.” This opinion of Satz leaves us on another
important question: – Are woman baby-machines?
Another important political connotation which is closely attached to surrogacy

is that, what are the moral limits of market i.e. Are there something's in
this world which money can't buy or everything is up for sale; only
one should be capable of paying? "There are, in a civilized
society, some things that money cannot buy." Treating children as
commodities degrades them by using them as instruments of profit rather
than cherishing them as persons worthy of love and care. Contract pregnancy also
degrades women by treating their bodies as factories and by paying them not
to bond with the children they
bear.
Elizabeth Anderson advances a compelling version of this argument. “By
requiring the surrogate mother to repress whatever parental love she
feels for the child,” Anderson writes surrogacy contracts "convert women's
labor into a form of alienated labor." The surrogate's
labor is alienated "because she must divert it from the

end which the social practices of pregnancy rightly promote
an emotional bond with her child.” Commercial surrogacy
challenges the c onventional a
ssumptions o f maternal
bonding which is based on t he concept of natural and
instinctive link between the mother and her fetus/child. Recently
researchers
have contested this assumption and argued that most surrogate
mothers do not bond with the babies they relinquish to the social
parents. The detachment has b een measured by the success rate
of relinquishment, percentage of surrogates reporting satisfaction with
the process and evidence of no psychological problems
as a result of relinquishment. I draw on my findings on
gestational surrogacy in India to contend that
maternal bonding is effectively an emotion integral to the
physiological process of child birth and is deeply rooted in the
cultural
cont
ext
o
f
motherhood In
her critique of commercial surrogacy, for example, Elizabeth Anderson
avoids the
suggestion that the norms of the market are in principle unattractive or
anti- egalitarian, but focuses on where these norms legitimately
apply. 'To say that something is properly regarded as a
commodity is to claim that the norms of the market are appropriate for
regulating its
ses
noi
1011
production, exchange and e njoyment': this suggests nothing particularly

disreputable in market n orms. The problem, for Anderson, arises
when these are applied to the way we allocate and understand
parental rights and responsibilities or the way we treat women's
reproductive labor, for when this happens, children are
reduced from objects of love to objects of use and women 'from
subjects of respect and consideration to objects of use'. Political
philosophers offer two objections to the commoditization
of certain transactions. The first focuses on coercion;
exchanges that are driven by severe inequality, ignorance, or dire
economic necessity are problematic. The second objection focuses on
corruption and
holds that the market has a degrading effect on certain goods and
practices. As the Baby M case unfolded, both objections were aimed at
surrogacy, effectively framing the transactions as illicit commoditization.
Opponents claimed that surrogacy unfairly exploited poor women who
unwillingly entered contracts that they would come to
regret. Critics also claimed that surrogacy degraded children
and women by treating children as commodities to be exchanged for
profit and women's bodies as childbearing f actories; the
arrangements also degraded t he mother-child relationship by paying
women not to bond with their children.
Surrogacy arrangements were not completely unfamiliar to lawmakers

or to the public in
1986, when the Baby M story first a
ttracted media attention. In the early
1980s, a few courts
had addressed whether surrogacy contracts were enforceable, and in

1986 a bill regulating
(but allowing the enforcement of these novel arrangements was under
consideration in the
New York legislature. Surrogacy had also received some media

and academic attention. But the B aby M case—a dramatic and
emotional legal battle between a housewife who had dropped out
of high school and a c ouple with g
raduate degrees and
professional careers who
sought to have a child with her assistance focused national attention. Many argue
that surrogate rrangements depersonalize reproduction and
a
create a separation of genetic, gestational and social parenthood.
It is also argued that the child is conceived not for their
ow
n
sak
es
bu
t
fo
r
anot
her
benefi
t.
What is the degree of stress on the couple and on the surrogate mother? Can
anyone predict thei ntensity of emotions attached to that baby?
What are the adverse psychological effects on the child
when it is separated in his early infancy from the mother
giving birth? What identity c risis might ensue a? Will there be desire
on the part of the child to know his gestational
fathe
r
o
r
mother
?
Will surrogate arrangements be u sed only for infertile couples or
even for same sex couple or just for the sake convenience of the couple
who want the child but are not ready to bear pains
fo
r
that
?
What happens when the child is born handicapped and no one wants i t?
Should the surrogate
and the couple be unknown to each other? Should the child be told or there
hat if wife's sister donates the
should be total confidentiality?
W
nd the h
eggs a usband's brother donates the sperms and the
fertilization in vitro is carried out and subsequently it is implanted
into the wife's uterus? When after the multiple implantation the
time comes to selective abortion, what criteria should be
applied and which fetus is to be aborted? Will there be sex
selective abortion?
The ends do not justify means. In the market of reproduction it is seen
that the sperms and the eggs are sold and wombs are rented. The use of
t o the unity of
technology to bear a child by such means is contrary
nd the dignity o
marriage a f p
rocreation o
f human being. By
passing the natural method of conception, fertilizing more embryos
than needed, xcess embryos, unnatural
discarding
e
environment for e
mbryos, freezing them and destroying them
in research are the issues involved in misuse of technology. If during
the time in which the embryos are in storage if the couple divorces
what is to be done with it and by whom? The religious concepts believe
that life begins of at conception; it may amount to abortion
which is contrary to both law and ethics. Since more embryos than required
are fertilized in
the lab, the spare embryos are frozen. In the process some of them are killed.
The remaining embryos are human lives that, given a chance,
evelop i n t o a man or women. They are used even for
would d
experimentation which can be fatal to them. Donation of sperms or ova
involves separation of biological and social roles of

parenthood and is equivalent to adoption. In this view there needs
to be change into the adoption laws. Surrogacy contracts reduce the
embryos/children to the objects of barter by putting a price
tag in them which is immoral and illegal as well.
Moral
aspects
"You say that you gave me everything and I should be grateful.
But I am the product that was
sold. You say that you wanted me so much that you bought me. But I am the
product that was sold. I am the product that was sold.” In a society,
no human can live detached, each person is related to the other.
Morality is all
about the idea of relationship that is shared between persons, and we a
ct
immorally when we
harm others. According to Emannuel Kant , a human being is end in himself,
he cannot be
used as a means to achieve the end, if a human is used as a means
then the act is immoral. Any principle would be considered as
moral when it can be applied universally. Hence if surrogacy
harms those relationships which contribute to our flourishing as human
persons
then it must be considered morally wrong. In the whole idea of surrogacy,
the surrogate mother is used as a means to achieve the end; that is the
desire to bear the baby of the infertile
couple which accordingly is the immoral act. Also, parents seek surrogacy as
a means of
strengthening their own relationship t hrough carrying out the role of parents.
If they do not,
then it seems to me we return to the question of whether the child is seen
as a means to an end.
Another problem is raised when the ovum and the sperm is both supplied
by the parents, and the surrogate role is limited to the period of
gestation, this relationship between the birth
mother and the child cannot be viewed lightly, this relationship is
important as the genetic relationship as argued by many
feminists. If so, then the issue of parenthood is distorted. It is
the i mportance of the various relationships involved in surrogacy a
nd
the h arm which is done to the persons whose relationships a re
made so indefinite that is of moral importance here . Also, an
important consideration is that the surrogate who is the third party
between the relation of husband and wife constitutes the destructive
element which erodes the intimacy
which exists in an intimated, exclusive and

committed relation.
Social
issues
New reproductive technology claim t o help human beings through

creative interventions that reduce suffering and have the potential to
transform the society. The commercialization of surrogacy however
creates several social conflicts rather than resolving a few. It
generates the family pressure on pure women to offer their wombs for a
price. In the other part in the world the debate is focus on the ethics of
surrogacy rather than on the economic advantage of any particular
region. On t he other hand the economic advantage is the main criteria behind
going for s urrogacy. Majority of the women becoming surrogates are
extremely vulnerable due to poverty, lack of financial resources, low
educational levels. For them the financial gain is the key factor.
This makes their economic exploitation much easier for the agents for
commissioning
parents.
The surrogates often face the dilemma that being a surrogates is
socially unacceptable when the frankly accept monetary
consideration. So rather than tell their neighbors that they gave away
their child, they tell them that the baby died. As the
surrogacy involves implantation of multiple fetuses, the unwanted
fetus is aborted during the course of development. The misuse of
PNDT in the process can eliminate the female fetus resulting into
imbalance of sex ratio in the country. There are cases where the surrogate
mothers have refused to part with the baby. In other cases the
commissioning parents have refused to accept the child with the
deformity. Baby Manji' s case as there was divorce between the
commissioning couple the problem arose as to the custody of the
new born baby. In many cases, the caesarean delivery needs to be
performed. For such surgery the consent of surrogate mother is to
be obtained. Her refusal may imperil the life of the child. Confusion also exists
where a surrogate mother fails to t ake
standard care and precaution during p

regnancy as a result of which harm is
caused to the
fetus. The high aspirations of the intending parents are ruined because of this.
Surrogacy can also affect t he children's p erception of the values and
integrity of their family. S ecrecy and a nonymity create a negative
environment that affects human relations within and outside families. It also
involves the issues of children's right to information about the i dentity of
their parents. Secrecy and a nonymity are routed i n the social value of the
primacy of blood relations'. The present practices push such children into a
search of identity, a sense
of shame and anger against their social parents an open Cost involved in
surrogacy: The relative c osts involved in the surrogacy process
are probably the largest i ncentive for foreigners to travel to India. A
commissioning party can expect to pay $14,000 to $18,000 to a
gestational surrogate in the United States Total costs for
contracting with a surrogate mother in the United States fluctuates between
$59,000 and
$80,000. India's current costs a

re markedly lower than American
standards. In the country where annual per capita income is $500,
fees for surrogates are reported to range anywhere from $2,500
to $7,000 Hence, in the conclusion we would like to say that the
people of poor country got the very lucrative business of earning
easy money by loaning their organ, thus, when people are having
an opportunity of becoming affluent, without hard labor, then the
question arises, why
people, would like to work and earn money, when they have an trouble-free
source to earn it?
The result would be disastrous, as we are giving a wind to an industry in which we
are endorsing the hiring of wombs a
nd we are measuring the baby
in terms of money. Thus, question that comes in our mind does
humans have enough power that now, they can now even
encroach the internal organs of human body, as they have
already impinged the nature (land, water, animals etc.) for the
creation of money and economic boon. Does, there is no regulating
authority which can ensure the limits of human conduct. No doubt,
surrogacy is the process, wherein, a woman can effortlessly earn
a ransom amount of money, a nd can f ulfill all her needs and desires. But,
is it ethical, to do so? Prostitution,
selling of organs, robbery, theft, gambling, smuggling and in various other
acts, a person can make a lot of money, but does any government
authority, legalize it? Also it is feared that if surrogate
motherhood becomes a legal “business' then soon educated
working women will start hiring wombs to prevent a break in their career!
To take an extreme scenario, baby
'factori
es
coul
d
spri
ng
up.
Every act cannot be counted in terms of money; the moral and ethical
issues are involved and well thought-out while the commission of every
act, then isn't it is eccentric, that our legislature is ignoring moral and
ethical aspects, while drafting the ART bill: which indirectly
commercializes surrogacy. We aim that our legislature passes a law which
caters the need of
the public at large and which is beneficial for all. There should be no
law, which degrades the status of any gender. At the end, a good law
is the one, which apart from economical and
financial issues caters the ethical and moral sides of the society also. Conclusion
Commercial surrogacy i.e. buying and s elling of the womb of the women's
body, is
according to us, an immoral act, the legalizing of commercial surrogacy
should not be promoted. Though this procedure is a very effortless
method to make money, but its
promotion and legalization would lead India to be one of the hubs of the
foreign developed nations of surrogacy. Poor, destitute Indian
women would become the means for bearing the baby, and
exploitation by the rich, powerful infertile couple. In India, as of now,
there is no
need to legalize and promote commercial surrogacy, as the infertility
rate of the country is not
very, also, the country has l ot more needs to cater, such as, paucity,
malnutrition, a country
which is itself so chronologically so poor, first require to improve the condition
of its own citizens rather than to gratify the requirements of the
infertile couple of the f oreign countries
and make a provision for its citizens f or trouble-free source of earning money;
which would
affect the
economy also.
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be picturising that the trading of body parts of a

Commercialization of surrogacy is a contemporary legal issue, as

appropriated b y sperm banks, ART clinics and lawyers. The Assisted

Another important political connotation which is closely attached to surrogacy

labor is alienated "because she must divert it from the

production, exchange and e njoyment': this suggests nothing particularly

Surrogacy arrangements were not completely unfamiliar to lawmakers

had addressed whether surrogacy contracts were enforceable, and in

New York legislature. Surrogacy had also received some media

involves separation of biological and social roles of

which exists in an intimated, exclusive and

New reproductive technology claim t o help human beings through

standard care and precaution during p

$80,000. India's current costs a

ORIGINALITY REPORT 96 %

www.legalindia.com Internet Source

You might also like

Surrogacy Law in India: Vinay Kumar

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Original Title

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Surrogacy Law in India: Vinay Kumar

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SOL (1)

be ​picturising ​that ​the ​trading ​of ​body parts ​of a

Commercialization ​of ​surro​gacy ​is ​a ​contemporary ​l​e​gal ​issue​, ​as

appropriated b​ y ​sperm ​banks​, ​ART ​clinics ​and lawyers​. ​The ​Assisted

Another important political connotation which is closely attached to surrogacy

labor ​is ​alienated ​"​because ​she ​must ​divert it ​from ​the

production​, ​exchange ​and e​ njoyment​'​: ​this ​su​gge​sts ​nothing ​particularly

Surrogacy ​arrangements ​were ​not ​completely ​unfamiliar ​to ​lawmakers

had ​addressed whether ​surrogacy contracts ​were ​enforceable​, ​and ​in

New ​York ​legislature​. ​Surrogacy ​had ​also ​received ​some ​media

involves ​separation ​of bio​logi​cal ​and ​social ​roles ​of

which ​exists ​in ​an ​intimated​, ​exclusive ​and

New ​reproductive ​techno​logy ​claim t​ o ​help ​human ​be​ings ​thro​ug​h

standard care ​and ​precaution ​during p

$​80,000​. ​India​'​s ​current ​costs a

ORIGINALITY REPORT ​96​ %

www.legalindia.com ​Internet Source

You might also like

be picturising that the trading of body parts of a

Commercialization of surrogacy is a contemporary legal issue, as

appropriated b y sperm banks, ART clinics and lawyers. The Assisted

labor is alienated "because she must divert it from the

production, exchange and e njoyment': this suggests nothing particularly

Surrogacy arrangements were not completely unfamiliar to lawmakers

had addressed whether surrogacy contracts were enforceable, and in

New York legislature. Surrogacy had also received some media

involves separation of biological and social roles of

which exists in an intimated, exclusive and

New reproductive technology claim t o help human beings through

standard care and precaution during p

$80,000. India's current costs a

ORIGINALITY REPORT 96 %

www.legalindia.com Internet Source