The debate around surrogacy has been going on around the world for quite some time. It began with a noble cause, but the practice of surrogacy has expounded greatly, transforming into a commercial exploitation of the powerless by the powerful. Many celebrities have used surrogacy to have children – the most recent and the most famous example being Karan Johar. Soon after Karan Johar’s twins were born, the government introduced the Surrogacy (Regulation) Bill, 2016. A debate was sparked with people coming out for and against the Bill.
What is Surrogacy?
Surrogacy is the medical practice of artificially inseminating a woman with the sperm of a man. This is generally opted by couples who can’t get pregnant either because one or both of them are medically unfit, same-sex couples and people who want to be single parents. The inseminated woman carries the baby for the full term and delivers it. This is called traditional surrogacy.
There is also a second kind of surrogacy called gestational surrogacy. Here the eggs from the mother are fertilized with the sperm of the father and the embryo is placed in the uterus of the surrogate who carries the child and delivers it. This is preferred by lesbian couples as one partner’s eggs can be used while the second partner gets to carry the child.1
What is the debate surrounding surrogacy?
The idea behind the concept of surrogacy seems quite altruistic, but over the years, it has turned into a form of oppression of a certain class of women. A lot of women, in need of money, agree to be surrogates without fully understanding the risks of the procedure. Commercial surrogacy, as it is called, has exploded into a huge problem, and India is considered to be one of the top destinations for fertility tourism. Legalized in 2002, commercial surrogacy wasn’t a problem until cases and reports of neglect of the surrogate mother and, in some cases, the child started coming up.
In 2008, a Japanese couple made headlines when, after having a child using an Indian surrogate, they got a divorce. Neither the surrogate nor legal mother wanted the child and the father was unable to come to India to take it with him. It was left in what has been described as a “legal limbo”. The child, Manjhi Yamada, was three months old when the father and the grandmother were able to come to India to take her with them.2
Then in 2012, an Australian couple were in the news when, of the twins that were born to them using surrogacy, they chose to take only one of the two with them, rejecting the other.3 Again, in 2014, another Australian couple rejected a twin born with Down’s syndrome, through surrogacy in Thailand and took his healthy sister with them. The boy stayed with the surrogate mother for a while and was later granted Australian citizenship so that he could have access to medical care.4
Surrogacy has made hundreds, thousands of couples happy, no doubt, but at what cost? Cases like those mentioned above drown out the voices of those in favor of commercial surrogacy.
To add to all this is the plight of the women who opt for surrogacy as a way to make ends meet, but end up being exploited. Most women aren’t paid as promised, because of middlemen who take a fifty-percent cut. A report by Al-Jazeera told the story of Anandhi, who had signed up to become a surrogate mother at an infertility hospital. She was promised $3306, but received only $1653 – the rest was taken by the middleman. Moreover, the hospital did not even give her free treatment when she suffered post-delivery complications.5
Hospitals stand to benefit a lot from this too, often at risk to the child. In November 2017, a ‘senior couple’ from Rajkot, aged 63 and 58 years, was “blessed” with twins through surrogacy. Important questions like who will take care of the children if something happens to the couple or what relationship they will have with their biological mother were left unanswered. Hospitals present themselves as generous and altruistic when they allow couples to have children who might not be able to take good care of them.6
What does the law say?
Nothing now. Commercial surrogacy, as said earlier, was legalized in India in 2002. However, cases like those mentioned above and more showed the country the real truth about surrogacy, prompting the government to introduce the Surrogacy ( Regulations) Bill in 2016. The Bill aims to regulate surrogacy, doing away with commercial surrogacy and limiting it to only those married couples who can get a close relative to act as a surrogate for purely altruistic reasons. This leaves out single parents, live-in couples and gays from experiencing the joy of having a child of their own. Moreover, the couple has to prove that at least one of them is unable to reproduce.7
The Bill suffers from various shortcomings. Firstly, the Bill allows for only married couples who have been married for five years or more. This leaves out single parents and gay couples who want to have children too. Moreover, it’s hard to determine whether the surrogate is participating for truly altruistic reasons or has been pressurized.
In Aug 2017, a Standing Parliamentary Committee on Health and Family Welfare criticised the government for taking a “moralistic” stand and came out in support of commercial surrogacy. It remains to see what the Parliament finally decides on doing.8
Commercial surrogacy has been going around for quite some time, under the guise of being empowering for women. While it may help certain women earn a little extra money, it doesn’t change their economic standing and in fact, puts them at risk of a lot of health issues. The numbers overwhelmingly point towards the harsh conditions and lifestyle of surrogates. The Surrogacy (Regulation) Bill also has loopholes which need to be looked into. Some critics have asked for a complete ban on surrogacy but that seems too extreme a step. Surrogacy can be used for good, but it has to be tightly regulated. The delay in dealing with this issue is not helping matters at all. Until there is some affirmative action, there is no way out for the surrogates who are suffering.
By – Sakshi Shivpuri
St. Xavier’s College, Mumbai.
Disclaimer: Legal Bites is determined to include views and opinions from all sides of the spectrum. This doesn’t mean we agree with everything we publish. But we do support their right to the freedom of speech. In case of content writers/editors/bloggers articles, the information, ideas or opinions in the articles are of the author and do not reflect the views of Legal Bites. Legal Bites does not assume any responsibility or liability for the same.