SURROGACY: PREGNANCY FOR PAY

Author : Aarya Mishra, BALLB, IV Semester

Co- author: Devansh Singh, BALLB, IV Semester

ABSTRACT

“When money is exchanged for pregnancy some believe, surrogacy comes close to organ-selling
or even baby selling.”

Thomas Frank

Surrogate motherhood is no doubt a unique application of advanced technology but technology

itself has no moral values. The legal perspective on surrogacy has to be essentially involves
moral and ethical issues on which the public policy considerations are grounded. Although
assisted reproductive technology, including in vitro fertilization has given hope to millions of
couples suffering from infertility, it has also raised countless ethical, legal, and social questions.
Let us now consider these issues that are most relevant to present day society and discuss the
multiple ethical, legal, and social challenges inherent to this technology.

The paper discuss and assess the alleged risk factors or other controversial issues arising in
respect of surrogate motherhood and whether surrogacy is socially and morally justified to it.

Key words: surrogacy assisted reproductive technology, motherhood.

Methodology: the present study had adopted doctrinal method of research

Objectives: The present study has been made by considering following objectives:

 To understand the concept of surrogacy and the advent of commercial motherhood

 To analyze the concept on utilitarian and libertarianism ground.
INTRODUCTION

Women are human beings first, with minor differences from men that apply largely to the single
act of reproduction. We share the dreams, capabilities, and weaknesses of all human beings, but
our occasional pregnancies and other visible differences have been used-even more pervasively,
if less brutally, than racial differences have been used-to create an "inferior" group and an
elaborate division of labor.

In our society infertility has historically been seen as a problem which merits treatment.
Surrogate motherhood provides some couples with their only hope of raising a child genetically
related to at least one of them. Surrogate motherhood describes an arrangement where a woman
(the surrogate mother) agrees to become pregnant and bear a child for another person or persons
(the commissioning parents) to whom the custody of the child will be transferred directly after
birth.

Factors such as the growth of infertility in modern society, coupled with the declining number of
children available for adoption, the development of the surrogacy contract and commercial
surrogacy agencies and the introduction of new technologies such as in vitro fertilisation (IVF)
which can be combined with surrogate motherhood, have resulted in increasing publicity and
public interest in the formation of such agreements between infertile couples. Surrogate mothers
are not a new solution to the old problem of not being able to reproduce an offspring. The basic
concept dates back at least 4000 years to Rachel, wife Jacob, the father of the twelve tribes of
Israel. Unable to bear children, Rachel sent her husband into the tent of her maid, Bilah. It was
understood that the child born of that union belonged to Jacob and Rachel. Surrogacy has also
been seen around a long time and dates back to biblical times. Some say it all started with Sarah
and Abraham. Certain people say it started even before them, and that it is only recorded about
Abraham because he was written about in the Bible.

In ancient Hindu society there existed a practice known as Niyog Pratha, wherein a woman who
was childless because her husband was impotent was allowed to conceive through her brother-in-
law. The child belonged to the couple and the brother-in-law had no claim over it. Niyog pratha
was surrogate fatherhood. It was much less complicated, legally and emotionally, than surrogate
motherhood. The scholars of Islam have pronounced a Fatwa regarding surrogacy; it is
considered illegal and immoral for a woman to carry the child of any man other than the
husband’s. The bible promotes the idea of surrogate motherhood. However, as far as earlier law
of Christians is concerned it promotes surrogate fatherhood.
Historical Perspective of Surrogate Motherhood

There are no authentic documents survived up to contemporary times. Information is to be

collected from chronicles, legends, myths, epics and even the folk songs that have survived from
oral transmissions from generation to generation. The concept of surrogate motherhood was well
known in the ancient world. Some of the instances are traced as under:

 ANCIENT INDIA
Surrogacy was known and practiced in ancient times. In the Mahabharata,
Gandhari, wife of Dhritarashtra, conceived but the pregnancy went on for nearly two
Years; after which she delivered a mass (mole). Bhagwan Vyasa found that there were
101 cells that were normal in the mass. These cells were put in a nutrient medium and
Were grown in vitro till full term. Of these, 100 developed into male children
(Duryodhana, Duhshasana and other Kauravas) and one as a female child called
Duhsheela.
There are other well-quoted examples that refer to not only IVF but also to the
idea that a male can produce a child without the help of female. Sage Gautama produced
two children from his own semen— a son Kripa and a daughter Kripi, who were both
test-tube babies. Likewise, Sage Bharadwaj produced Drona, later to be the teacher of
Pandavas and Kauravas. The story relating to the birth of Drishtadyumna and Draupadi is
even more interesting and reflects the supernatural powers of the great Rishis. King
Draupada had enmity with Dronacharya and desired to have a son strong enough to kill
Drona. He was given medicine by Rishi and after collecting his semen, processed it and
suggested that artificial insemination homologous (AIH) should be done for his wife who
however refused. The Rishi then put the semen in a yajnakunda from which
Dhrishtadyumna and Draupadi were born. While the above are quoted as examples of in
vitro fertilisation (IVF) and parthenogenesis, there is another story, which refers to
embryo transfer. According to Bhagwad Gita, even Lord Krishna is understood to have
been born without a sexual union. This was regarding the seventh pregnancy of Devaki,
by the will of the lord; the embryo was transferred to the womb of Rohini, the first wife
of Vasudev, to prevent the baby being killed by Kansa.
RECENT HISTORY
The issue of surrogate motherhood came to national attention during the 1980s,
with the Baby M case. In 1984 a New Jersey couple, William Stern and Elizabeth Stern,
contracted to pay Mary Beth Whitehead $10,000 to be artificially inseminated with
William Stern's sperm and carry the resulting child to term. Whitehead decided to keep
the child after it was born, refused to receive the $10,000 payment, and fled to Florida. In
July 1985, the police arrested Whitehead and returned the child to the Sterns.
In 1987 the New Jersey Superior Court upheld the Stern-Whitehead contract.76
The court took all parental and visitation rights away from Whitehead and permitted the
Sterns to legally adopt the baby, whom they named Melissa Stern. A year later, the New
Jersey Supreme Court reversed much of this decision. That court declared the contract
Unenforceable but allowed the Sterns to retain physical custody of the child. The court
also restored some of Whitehead's parental rights, including visitation rights, and voided
the adoption by the Sterns. Most important, the decision voided all surrogacy contracts on
the ground that they conflict with state public policy. However, the court still permitted
voluntary surrogacy arrangements.
The Baby M. decision inspired state legislatures around the United States to pass
laws regarding surrogate motherhood. Most of those laws prohibit or strictly limit
surrogacy arrangements. Michigan responded first, making it a felony to arrange
surrogate mother contracts for money and imposing a $50,000 fine and five years'
imprisonment as punishment for the offense.78 Florida, Louisiana, Nebraska, and
Kentucky enacted similar legislation, and Arkansas and Nevada passed laws permitting
Surrogacy contracts under judicial regulation.

MEANING OF SURROGATE MOTHERHOOD

The literal meaning of word ‘surrogate’ is ‘substitute’. Surrogacy arrangements
are motivated by a desire for a genetically related child and the disincentive arising out of
the prolix adoption procedures coupled with difficulty in finding suitable child for
adoption.
The word surrogate, from Latin surrogatus, means appointed to act in place of.
Surrogacy is an arrangement between a woman and a couple or individual to carry and
deliver a baby. A surrogate mother is a woman who carries a child for someone else,
usually a couple struggling with fertility issues. After the child is born, the surrogate
mother surrenders it to the people who have hired her. The surrogate mother is also
known as ‘Gestational Carrier’.
The concept of “rent a uterus” in fact may be readily acceptable in the more
analytical frame of the mind with the argument “at least the baby is made with our
gametes, even though nourished in a rented body”. With sisters, sisters-in-law and even
mothers lending a hand or rather a uterus, it received greater acceptability (even if future
 consequences arouse, it could be solved very easily and the helping hand of near and
close relative may not be taken out after delivering the child).

DEFINITIONS
A standard definition of surrogacy is offered by the American Law Reports in
the following manner:
“a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to
conceive a child through artificial insemination with the sperm of the natural father, to
bear and deliver the child to the natural father, and to terminate all of her parental
rights subsequent to the child’s birth.”

Dictionary Meaning
Surrogate Mother:
(a) A person or animal acting the role of mother
(b) A woman who bears a child on behalf of another woman, either from her
Own egg fertilized by the other woman’s partner or from the implantation in her womb of
a fertilized egg from the other woman1.

Encyclopedia Britannica
Surrogate Motherhood:
Practice in which a woman (the surrogate mother) bears a child for a couple
unable to produce children, usually because the wife is infertile or unable to carry
a pregnancy to term. The surrogate is impregnated either through artificial
insemination (usually with the sperm of the husband) or through the implantation
of an embryo produced by in vitro fertilisation. The surrogate traditionally gives up all
parental rights, though this has been subject to legal challenge.2

TYPES OF SURROGACY
1
Oxford English Dictionary, sixth edition, vol 2, 3123 (2007)
2
Available at: http://www.britannica.com/EBchecked/topic/575390/surrogate-motherhood
  Traditional or Partial Surrogacy: This involves artificially inseminating a
surrogate mother with the intended father’s sperm via intrauterine insemination
(IUI), in-vitro fertilisation( IVF) or home insemination. In this case the
surrogate’s own egg will be used. With this method, the child is genetically
related to its father and the surrogate mother.

 Traditional Surrogacy and Donor Sperm: A surrogate mother is artificially

inseminated with donor sperm via IUI, IVF or home insemination. The child born
is genetically related to the sperm donor and the surrogate mother.

 Gestational or Total Surrogacy: When the intended mother is not able to carry a
baby to term due to hysterectomy, diabetes, cancer, etc., her egg and the intended
father's sperm are used to create an embryo (via IVF) that is transferred into and
carried by the surrogate mother. The resulting child is genetically related to its
parents while the surrogate mother has no genetic relation.

 Gestational Surrogacy and Egg Donation: If there is no intended mother or the

intended mother is unable to produce eggs, the surrogate mother carries the
embryo developed from a donor egg that has been fertilised by sperm from the
intended father. With this method, the child born is genetically related to the
intended father and the surrogate mother has no genetic relation.

 Altruistic Surrogacy
It is the term used to describe the situation where there is no formal contract or any
payment or fee to the birth mother. It is usually an arrangement between very close
friends or relatives. In altruistic surrogacy, the essential elements are child-bearing by a
surrogate mother, termination of her parental rights after his birth and payment of money
by the genetic parents. The surrogate is paid merely to recompense her for the pain
undertaken by her and includes reimbursement of medical and other expenses or inotpaid
at all3.

 Commercial Surrogacy
3
Kush Kalra, “Surrogacy Arrangements; Legal and Social Issues” Journal of Law Teachers India 125 (2010).
In contrast thereto, commercial surrogacy involves payment of hefty sum of money as income to
the surrogate for the service offered by her plus any expenses incurred in her pregnancy and
surrogacy is thereby looked upon as a business opportunity. It is a business like transaction
where a fee is charged for the incubation service, in consideration of the birth mother
surrendering the child at birth. There are usually financial arrangements like the above in
addition to ancillary expenses, loss of wages etc. And often stipulates behavior the birth mother
agrees to undertake (e.g. undergoing tests, or having an abortion if foetus is defective or avoid
smoking and drinking). The commissioning couple and the birth mother are often strangers. It is
argued by many that payment simply for expenses and earnings and not the service and surrender
of custodial rights will entail calling the agreement non-commercial 4. This medical procedure is
legal in several countries including India where due to excellent medical infrastructure, high
international demand and ready availability of poor surrogates it is reaching industry proportions.
Commercial surrogacy is sometimes referred to by the emotionally charged and potentially
offensive terms “wombs for rent”, “outsourced pregnancies” or “baby farms.”5

4
Kush Kalra, “Custody of the Child and Surrogacy Contracts in India” Shreeram’s The Law 42 (July, 2013).
5
J.P.S. Sirohi, Criminology and Penology 679 (2011).
ANALYSING SURROGACY CONTRACTS AND JUSTICE ON LIBERTANISM AND
UTILATARIANISM STAND

The argument for upholding the surrogacy contracts stand on two theories of justice –
libertarianism and utilitarianism. The libertarian case for contract is that they reflect freedom of
choice; to uphold a contract between two consulting adults is to respect their liberty.

The utilitarianism case for contracts is that they promote the general welfare; if both the parties
agree to deal, both must derive some happiness or benefit from the agreement-otherwise, they
wouldn’t make it. So unless it can be shown that the sell reduces someone else’s utility(and by
more than it benefits the parties), mutual advantageous exchange-including surrogacy contracts
should be upheld.

UTILATARIANISM

Gestational surrogacy has increased the supply of prospective surrogacies, demand has increased
as well. Surrogates now receive $ 20,000 to $25000per pregnancy, the total cost of the
arrangement including medical bills goes to $70000- $80000.

With prices this steep it is not surprising to find that prospective parents have begun to seek less
expensive alternatives. As like other products and services in the global economy paid pregnancy
is new outsourcing to low cost providers.

In 2002 India legalize commercial surrogacy in hopes of attracting foreign customers. The
Western Indian city of ANAND may soon to be paid pregnancy what Bangalore is to call
centers. In 2008 more than 50 women were carrying pregnancies for couple In the U.S, Taiwan,
Britain and elsewhere. The money the women earn is $4500-$7500 is often more tjan they would
otherwise make in fifteen years, and enables them to buy a house or finance their education.

Some suggest that the commercial surrogacy as practiced today is less morally troubling than the
arrangement that led to the Baby M case. Since the surrogates does not provide the eggs only the
womb and labor of pregnancy, it is argued, the child is not genetically hers. According to the
view no baby is being soldand the claim to the child is less likely to be contested.
LIBERTARIANISM

In the baby M case the argument of Mary Whitehead raise the question under condition in which
people make choices. It says that we can exercise choice only when we are not unduly pressured
( by the need for money ) and if we are reasonably well informed about the alternatives.

Libertarianism is of the view that whatever choice people make , provided that the choices don’t
violate any one’s rights

CONCLUSION

The debate regarding surrogacy will continue as we are free to cultivate our own reasons to judge
the morality of surrogate motherhood. The overall analysis shows that its benefits are less than
its harm. It is bad both from the deontological and consequential points of view. If it would have
been good from consequential point of view, then we should re-evaluate its deontological
position and try to justify its relevance to the society. But we see it can neither satisfy the
deontologist nor the consequentialist nor the feminist nor society. So why should we support it?
Developing an emotional bond with a baby during pregnancy knowing that you will soon hand
her over to another woman can result in confusion, sadness or even anger. During the nine
months of gestation, the biological mother bonds with and becomes emotionally attached to the
baby growing inside her. For some women, giving the baby up after birth may present a loss too
challenging to overcome without outside help. Surrogacy also involves ethical and moral
dilemmas because commissioning or intended couples seek out a woman to initiate, gestate and
deliver a baby for them, usually in return for financial compensation. She conceives purposefully
with the intention to relinquish the baby and not to keep it as part of her family.