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REVIEW ARTICLE
Year : 2013  |  Volume : 57  |  Issue : 2  |  Page : 65-70  

Surrogacy and women's right to health in India: Issues and perspective


1 Assistant Professor, Law Centre 1, Faculty of Law, University of Delhi, New Delhi, India
2 Resident, National Institute of Health and Family Welfare, Baba Gang Nath Marg, Munirka, New Delhi, India
3 Assistant Professor, Department of Pharmacology, FOD, Jamia Millia Islamia, New Delhi, India
4 Director Professor, Department of Community Medicine, Maulana Azad Medical College, New Delhi, India

Date of Web Publication15-Jul-2013

Correspondence Address:
Pawan Kumar
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/0019-557X.114984

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   Abstract 

The human body is a wonderful machine. The future of child birth in the form of test tube babies, surrogate motherhood through new reproductive and cloning technology will introduce undreamt of possibilities in the sexual arena. Surrogacy is a method of assisted reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child for others to raise. In some jurisdictions the possibility of surrogacy has been allowed and the intended parents may be recognized as the legal parents from birth. Commercial surrogacy, or "Womb for rent", is a growing business in India. In our rapidly globalizing world, the growth of reproductive tourism is a fairly recent phenomenon. Surrogacy business is exploiting poor women in country like India already having with an alarmingly high maternal death rate. This paper talks about paternity issues and women's right to health in context of surrogacy. Government must seriously consider enacting a law to regulate surrogacy in India in order to protect and guide couples going in for such an option. Without a foolproof legal framework, patients will invariably be misled and the surrogates exploited.

Keywords: Maternal mortality, Paternity issues, Surrogacy, Women′s right to health


How to cite this article:
Anu, Kumar P, Inder D, Sharma N. Surrogacy and women's right to health in India: Issues and perspective. Indian J Public Health 2013;57:65-70

How to cite this URL:
Anu, Kumar P, Inder D, Sharma N. Surrogacy and women's right to health in India: Issues and perspective. Indian J Public Health [serial online] 2013 [cited 2017 May 23];57:65-70. Available from: http://www.ijph.in/text.asp?2013/57/2/65/114984


   Introduction Top


The human body is a wonderful machine, understanding of which is still an enigma. The future of child birth in the form of test tube babies, surrogate motherhood through newer technologies have introduced undreamt of possibilities in the sexual arena. Because any reproductive technique that replaces the conjugal act is violation of the dignity of procreation when human procreation is disconnected from sexual relation, the spouses can quickly become objects for sex. It becomes difficult to recognize dignity in each other, especially the pre born child. [1] Though, science and technology have made enormous contributions to the society. However, the fact is that it is not ethically right rather controversial.


   Meaning and Reasons for Surrogacy Top


Surrogacy is a method of assisted reproduction whereby a woman agrees to become pregnant for giving birth to a child for others to raise. She may be the child's genetic mother (the more traditional form of surrogacy) or she may be implanted with an unrelated embryo. Having another woman bear a child for a couple to raises usually with the male half of the couple as the genetic father is referred to in antiquity. In some cases, surrogacy is the only available option for parents who wish to have a child that is biologically related to them. [2] The word "surrogate," is rooted in Latin "Subrogare" (to substitute), which means "appointed to act in the place of." Altruistic surrogacy is where a surrogate mother agrees to gestate a child for intended parents without being compensated monetarily in any way. In other words, this is in effect a free surrogacy. Whereas, commercial surrogacy is an option in which intending parent offers a financial incentive to secure a willing surrogate. Commercial surrogacy is a controversial method of conception because people, governments and religious groups have questioned the ethics of involving money in a child's birth. [1],[2] There can be several reasons behind surrogate pregnancy. For instance, intended parents may arrange a surrogate pregnancy because a woman who intends to be parent is infertile or unable to carry a pregnancy to term, e.g., woman with hysterectomy, uterine malformation or with a history of recurrent abortions or any medical illness making her pregnancy a risk to her own health. A female intending to be a parent may also be fertile and healthy, but unwilling to undergo pregnancy. The agencies making arrangement for surrogacy for the intended parents often help them to manage the complex medical and legal aspects involved in process. [3]


   Surrogacy: International Scenario Top


Laws differ widely from one country to another. In England, commercial surrogacy arrangements are not legal and are prohibited by the surrogacy arrangement act 1985. A surrogate mother still maintains the legal right for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made the surrogate mother remains the legal mother of the child. [2],[3]

Status of surrogacy in USA

In USA, the surrogacy and its attendant's legal issues fall under state jurisdiction and it differs from state to state. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them and some penalize commercial surrogacy. In Canada, the Assisted Human Reproduction Act permits only altruistic surrogacy; surrogate mothers may be reimbursed for approved expenses, but payment of any other consideration or fee is illegal. [4],[5]

Status of surrogacy in Australia

In Australia, all states (except Tasmania, which bans all surrogacy under the surrogacy Contracts Act 1993) altruistic surrogacy has been recognized as legal. However, in all states arranging commercial surrogacy is a criminal offense. [6]

Status of surrogacy in South Africa

The South Africa Children's Act of 2005 enabled the "commissioning parents" and the surrogate to have their surrogacy agreement validated by the High Court even before fertilization. This allows the commissioning parents to be recognized as legal parents from the outset of the process and helps prevent uncertainty. [7],[8]

Status of surrogacy in Asian Countries

In Japan, the Science Council of Japan proposed a ban on surrogacy and doctors, agents and clients will be punished for commercial surrogacy arrangements. In Saudi, Arabia religious authorities do not allow the use of surrogate mothers. [9]

In China, Ministry of Health banned surrogacy in 2001. Despite this regulation it is reported that illegal surrogacy "black market" is still flourishing in China. Anxious about such situation strict legislation has been suggested by the political parties. [8],[10],[11],[12]


   Legal Aspects of Surrogacy in Europe Top


In Sweden, surrogacy is not clearly regulated. The legal procedure most equivalent to it is making an adoption of the child from the surrogate mother. It is illegal for Swedish fertility clinics to make surrogate arrangements. [13]

Ukraine: Surrogacy is completely legal in Ukraine. Only married couples can legally go through gestational surrogacy in Ukraine. [13],[14]

Russia: In Russia, commercial gestational surrogacy is legal and available for willing adults. There has to be a certain medical indication for surrogacy. Foreigners have the same rights as for assisted reproduction as Russian citizens. [15],[16]

Bulgaria: Surrogacy was previously illegal in Bulgaria, but as the procedure is still practiced illegally, the government decided to sanction it. Instead of using the term surrogate, though, Bulgaria calls it the "substitute mother." [17]

Georgia: Surrogacy in Georgia Europe is legal but there surrogate mother cannot exercise any parental rights over the child. [17],[18]

Some countries such as Poland and Romania among others have no defined surrogacy laws and while it's still possible to undergo the surrogacy process in those nations. As it can be seen, laws on surrogacy in Europe are varied and for some countries, vague and non-existent. [13],[17]


   Health Risks Associated with Surrogacy Top


In the US, surrogates are given no more than two embryos for their safety, whereas in India, surrogates are implanted with up to five embryos in order to increase the chances of pregnancy. Using such a large number of embryos increases health risks for babies and the mother. Chances of post-partum depression of surrogates are more with the child that grew in mother's womb. Pregnancy, birth and the post-partum period includes complications such as pre-eclampsia and eclampsia, urinary tract infections, stress incontinence, hemorrhoids, gestational diabetes, life-threatening hemorrhage and pulmonary embolism. Multiple pregnancy increases the likelihood of requiring an operative delivery. A surrogate host of advanced maternal age has increased risk of perinatal mortality, perinatal death, intrauterine fetal death, neonatal death. There is a greater risk to the mother of pregnancy induced hypertension, stroke and placental abruption. When hormones or drugs the surrogate is instructed to take, all drugs have side-effects. Many women undergoing Artificial insemination also take fertility treatments, increasing the likelihood of an adverse reaction and risks involved with the procedure. [19],[20],[21]

Issues such as premature delivery, genetic malformation and infections which lead to increased hospitalization of newborn are important issues to be considered in surrogacy contract. [20],[21]

Many surrogate mother's breastfeed the newborns during the first few hours following birth. However, parents find difficulty in initiating the breast feeding and in establishing the bonding between mother and child in case of surrogacy. [21]

One of the major draw backs of induced lactation in most surrogates or adopting mothers rarely produced the same quantity of breast milk as a new mother immediately following child birth. This presents a problem in terms of infant nutrition. [21],[22]


   Social and Psychological Context of Surrogacy Top


Commercialization of surrogacy creates several social conflicts. Given the extreme vulnerability, one-third of the Indian women due to poverty, exclusion from and marginalization in labor and job markets, patriarchal social and family structures and low educational levels, the financial gain through surrogacy become a key push factor. Since most surrogate mothers are not from well-off sections and the motive primarily is monetary so they are easily exploited by the agents working for commissioning parents. Secrecy and anonymity creates a negative environment that affects human relations within and outside families. [22],[23]

Surrogacy carry social stigma in the society as it is equated with prostitution and by virtue of that it is argued that it should be disallowed on moral grounds. Surrogate mothers are kept in isolation from families and allowed to meet families in weekends, which are against the human rights. Hence, there are number of ethical, social, legal and psychological issues associated with surrogacy, which require urgent need for framing and implementation of law. [22],[23]


   Surrogacy and Women's Right to Health: Indian Scenario Top


The concept of surrogacy in India is not new. Commercial surrogacy or "Womb for rent," is a growing business in India. In India, English speaking environment and cheaper services attract the willing clients.

Future projections of surrogacy practice range from opportunity to exploitation - from rural women in India uplifted out of poverty to a futuristic nightmare of developing country baby farm. [23] In case of surrogacy in India, it is hard to tell that whether these women are exercising their own personal rights or whether they are forced to become surrogate mothers due to their mother-in-law's or husband's desire to fulfill material and financial needs. [19],[24]

Opponents of surrogacy argue that the practice is equivalent to prostitution and by virtue of that similarity, it should be disallowed on moral grounds. Surrogacy contracts are "dehumanizing and alienating since they deny the legitimacy of the surrogate's perspective on her pregnancy. [23] Surrogate mother tries to avoid developing a special bond with the child in her and views the pregnancy as merely a way to earn the much-needed money. [23] The payment for bodily services dehumanizes the surrogate mother and exploits her reproductive organs and capability for personal gains of the wealthy. [24],[25]

In fact, outsourcing surrogacy is an exploitative practice in India. Currently, no law exists to protect the surrogate mother in case of birth complication, forced abortion etc.

Since 2002, commercial surrogacy has almost become legal in India and India has become a sort of leader in it. This is the reason that has led critics to allege that surrogacy business is exploiting poor women in country like India already having high maternal mortality ratio. According to estimates, which might be conservative - the business of surrogacy in India is already touching $445-million a year. [22],[26]

Surrogate motherhood as an arrangement, in which a woman takes no ownership of the child born, has raised moral, ethical social and legal questions about both woman and the "Commissioned baby." According to legal experts
"...if surrogacy becomes an avenue by which women in richer countries choose poorer women in our country to bear their babies, then it is economic exploitation, a kind of biological colonization." [27]

The Ministry of Women and Child Development is examining the issue of surrogate motherhood in India for bringing up a comprehensive legislation. A draft legislation on surrogacy-prepared by the Indian Council of Medical Research (ICMR) has recommended strict penalties for offenders and a tight regulation on Assisted Reproductive Techniques (ART). The draft law restricts the number of embryo transfers a mother can go through to 3 times for the same couple, if the first two attempts fail and it also adds that no woman should act as a surrogate for more than three live births in her life. In fact, these are the only guidelines framed by the ICMR and the Ministry of Health and Family Welfare in 2005. ICMR guidelines, states, "A relative, a known person as well as a person unknown to the couple may act as a surrogate mother for couple. In case of a relative acting as a surrogate, the relative should belong to the same generation as the woman desiring the surrogate." The experts believe that surrogacy propels childless couples needlessly toward commercial surrogacy. Section 3.10.5 of the guidelines states that "a surrogate should be less than 45 years" being the upper age without mentioning the minimum age to be surrogate. So does that mean an 18 year old or someone even younger, can become surrogate mother? Before accepting a woman as a possible surrogate for a particular couple, the ART Clinic must ensure (and put on record) that the woman satisfies all the testable criteria to go through a successful full term pregnancy." These guidelines are skewed and thoughtless. The bifurcated role of woman in surrogate arrangements is prompting renewed assessment of the meaning of motherhood and designation of maternal rights. [27],[28],[29],[30]


   Public Health Relevance of Surrogacy Top


Surrogacy and ART offer solutions to infertility. The existing demand for these services distorts priorities in the organization of health-care services as pressure is built to set up hi-tech reproductive techniques within open markets and public sector service infrastructure without building the basic facilities that help to prevent the infertility. The poor have to either sell their assets to access the facilities or use the opportunity to earn by selling their own reproductive potential - the women that are pushed into this process carry the maximum risks to their health. Over the past 10 years or so, our country has seen a mushrooming of fertility clinics. This has inspired the medical tourism, where surrogacy has important place in its list of attraction as couples from abroad come seeking easy access to surrogate mothers. According to private providers, first world comforts and quality is available at these Indian Institutions at the third world prices. Often this is achieved by reducing to the bare minimum, the necessary tests and safety procedures in women. In view of the high rate of prevalence and poor implementation of ART Regulatory Guidelines-2005 has raised several issues about the suitability of surrogacy in the present context from public health point of view. [29],[30] Most of issues and problems are as a result of totally unregulated private ART clinics-with varying costs, standards and procedures-that give primacy to profits rather than epidemiological needs of the majority in India. The need to prevent secondary infertility owing to poor obstetric services, reproductive tract infections and poor nutritional status of women and provision of basic services to deal with treatment of infertility is thus ignored by the government. Private sector is given full freedom to expand ART clinics to promote medical tourism and surrogacy. This can physically harm surrogates leading various complications due to techniques, e.g., low birth weights and malformed babies, which are not publically disclosed. [17],[31] There is no transparency in surrogacy contract and chances of legal problems are high. Cross border surrogacy leads to problems related to nationality, motherhood and rights of child.


   Surrogacy: Issues and Perspective Top


Establishing paternity may be easy enough with one quick genetic test, but the issue is not simple and easy for the courts. What will happen if a non-custodial father has been the "father" to a child for 15 years only to learn that he is not the biological father? Does he get a refund on the child support he is paid? Or if a surrogate mother breaks her contract, can she go after the husband and wife clients for monetary support for the resulting child? These are tough legal questions for judges and policymakers.

The Indian system only recognizes the birth mother. There is no concept of DNA testing for establishing paternity as far as the Indian legal system is concerned, i.e., the name on the child's birth certificate has to be that of the birth mother and her husband. In 2008 the Supreme Court of India in the Manji's case (Japanese Baby) has held that commercial surrogacy is permitted in India and it has again increased the international confidence in going for surrogacy in India. [32],[33]

The law commission of India has submitted the 228 th Report on "Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligation of Parties to an surrogacy." [32] The main observations had been made by the law commission are as: Surrogacy arrangements will continue to be governed by contracts amongst parties, but such an arrangement should not be for commercial purposes. A surrogacy arrangement should provide for the financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother. Legislation itself should recognize surrogate child to be legitimate child. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only. Right to privacy of donor as well as surrogate mother should be protected. Sex selective surrogacy should be prohibited. Cases of abortion should be governed by Medical Termination of Pregnancy act 1971 only. [34],[35]

According to Kimbrell (1988) most women who get involved as surrogates do so because they are in need of money. The surrogate mothers are often unaware of their legal rights and due to their financial situation they cannot afford the services of lawyers. [36]

Horsburgh (1993) believes surrogates are physically exploited once they have signed contracts agreeing to give birth to babies for clients. To make matters worse, if the pregnancy is indeed aborted, the surrogates often receive just a fraction of the original payment. The contracts can also place liability on the mother for risks including pregnancy-induced diseases, death and post-partum complications. [37]

Foster (1987) states that many surrogate mothers face emotional problems after having to relinquish the child. However, a study by Jadva et al. (2003) showed that surrogate mothers do not appear to experience psychological problems as a result of the surrogacy arrangements. Although it is acknowledged that some women experience emotional problems in handing over the baby or as a result of the reactions around them, these feelings appeared to lessen during the weeks following the birth. [23],[37],[38]


   Conclusion and Suggestions Top


In India, surrogacy is purely a contractual understanding between the parties so care has to be taken while drafting agreement so that it does not violate any of the laws like, e.g., points to be taken into consideration why does the intended parents opt for surrogacy, particulars of the surrogate, type of surrogacy, mentioning about paternity in the agreement, the creation of registry for biological father of children in an adoption cases, rules set forth on how and when genetic testing can be done to determine paternity, compensation clause, unexpected mishappening to the surrogate mother, child's custody, regarding the jurisdiction for the disputes arising out of agreement.

Indian government has drafted legislation in 2008 and finally framed an ART regulation draft bill 2010. The bill is still pending and not presented in the parliament. The proposed law needs proper discussion and debate in the context of legal, social and medical aspects.

We conclude that the government must seriously consider enacting a law to regulate surrogacy in India in order to protect and guide couples seeking such options. Without a foolproof legal framework implementation couples will invariably be misled and the surrogates exploited.

 
   References Top

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