Surrogacy: Whose Baby is it?

-Akshya

Editor’s Note: This paper deals with the issue of Surrogacy in India. The Author attempts to trace the origin of this concept and also discusses the Law Commission Report and the Assisted Reproductive Technologies (Regulation) Bill (ART), 2010. According to the Author, the main issue with the Bill is that it has too many loopholes and that these holes need to be plugged in by the lawmakers. It is the need of the hour to have to have a comprehensive draft which will cover every single aspect of the commercial surrogacy industry. There is also a need to generate awareness about issues around surrogacy and the ways of offsetting the unethical and negative aspects of its commercialization.

INTRODUCTION

Motherhood is one of the god’s greatest gifts to a woman. The thought of creating a new life is what every woman considers to be the biggest ability bestowed upon her by nature. But in a patriarchal society like ours, it at times becomes her duty which she has to fulfill. If due to medical complications a woman is not able to conceive a child her life is made a living hell by her family and society at large. Only because of her inability to conceive, a woman faces mental harassment by her in-laws and her family. To avoid this woman tries all sorts of medical remedies available to her and one of them is surrogacy.

Surrogacy is the process in which an individual or a couple pays a fee to a woman in exchange for her carrying and delivering a baby. At birth, the child is turned over to the individual or couple, either privately or through a legal adoption process. The very word surrogate ‘means substitute’. That means a surrogate mother is the substitute for the genetic-biological mother. In common language, a surrogate mother is the person who is hired to bear a child, which she hands over to her employer at birth.

What began as an altruistic act by a grandmother for her daughter wherein, she agreed to carry  her baby in her womb has undergone a tremendous change in the past ten years and taken the form of a business activity which can be more aptly termed as ‘womb on rent’. Commercialization in the field of surrogacy has made it a billion-dollar industry in many of the third world countries and one of these countries is the great democratic nation India. Surrogacy has no doubt, provided a means to earn livelihood to a large section of the Below Poverty Line (BPL) families in India and has given them a chance to achieve the basic necessities of life –food, shelter, education, etc. But it comes with its fair share of shortcomings which cannot be ignored further as it affects a large number of lives, including the ones which are yet to take their first breath in this world.

In terms of the medical fraternity surrogacy is a process in which two women seek out help from each other by fulfilling the other’s desperate requirement –one needs a roof over her head, the other needs a child of her own. As noble as it sounds this industry is unregulated in India and that leads to exploitation of the poor surrogate mothers and there is a high degree of uncertainty to the future of the child born through this process. We have to understand what grave danger the new born are in and what can be the worst case scenario for everyone involved in the process if this problem is not attended to immediately and effectively.

TRACING THE ORIGINS OF SURROGACY

The roots of surrogacy can be traced back to the ancient Babylonian legal code of Hammurabi (18th century BC) which recognized the practice of surrogacy and actually laid down detailed guidelines specifying when it would be permitted and the respective rights of both wife and surrogate mother[i].

“Vestal virgins were not supposed to have children, yet they could and often did marry, and such a wife would give a husband a surrogate to bear his children” [ii] References to Surrogacy can be found in the Bible: for instance, the stories of surrogacy between Abraham, Sarah and Hagar, and of Jacob, Rachel and their servant in the first book of the Old Testament. When Rachel saw that she was not bearing Jacob any children, she became jealous of her sister. So she said to Jacob, “Give me children, or I’ll die!” Jacob became angry with her and said, “Am I in the place of God, who has kept you from having children?”, Then she said, “Here is Bilhah, my servant. Sleep with her so that she can bear children for me and I too can build a family through her.” So she gave him her servant Bilhah as a wife. Jacob slept with her and she became pregnant and bore him a son. Then Rachel said, “God has vindicated me; he has listened to my plea and given me a son.” Because of this she named him Dan.” [iii] It suggests that surrogacy was accepted in early Jewish society as a legitimate way by which infertile couples had children and created a family. [iv]

In the Indian society to, in the Bhagvata Purana there is a story that suggests the practice of surrogate motherhood. Kans, the wicked king of Mathura, because of prophesy had imprisoned his sister Devaki and her husband, Vasudeva that her child would be his killer. Every time she delivered a child, he smashed its head on the floor. He killed six children. When the seventh child was conceived, the gods intervened. They summoned the goddess Yogamaya and had her transfer the foetus from the womb of Devaki to the womb of Rohini. Thus the child conceived in one womb was incubated in and delivered through another womb. [v]

It is again suggested that in the great Indian epic Mahabharata, all the hundred sons of the king of Hastinapur, Dhritrashtra were born through IVF process. “Vyasa took the piece of flesh and divided into 100 parts. He then put them into 100 pots and tied their mouths and buried them in the earth for a year” [vi]

From this it can be assumed that surrogacy is there from the time immemorial, but it is only recently that it has been commercialized and made into a billion dollar industry, the famous case of Baby M [vii], was the very first reported case of commercial surrogacy and the contract for which was drafted by  Late Noel Keane  provided the basic idea about the ambiguities present in the field of  commercial surrogacy regarding the rights of the surrogate mother, the child who is yet to be born and the parents.

In India, surrogacy heralded with the delivery of its first surrogate baby on 23 June 1994, but it took as many as eight years to draw the world’s attention when an Indian woman in 2004 delivered a surrogate child for her daughter in the United Kingdom. Surrogacy as a medical process has matured over the years[viii]. In India commercial surrogacy was not legalised till 2002. The pioneer in this field Dr. Nayana Patel had her first surrogacy process successfully conducted in the year 2004 .Since then it has only grown and now it has become a billion-dollar unregulated industry in India. Even after twenty years from its origin in India commercial surrogacy is still considered a taboo by many.

CURRENT SCENARIO IN INDIA

Since the legalization of surrogacy in the year 2002, commercial surrogacy has taken the form of a booming business industry in India. It has placed India on the world map as the surrogacy capital of the world. It has given a boost to the fertility tourism, as a large number of couples from all over the world are flying to India in the hope of continuing their blood line. There are a number of factors which play a key role in providing this sudden boost and one of them is that commercial surrogacy has not been legalized in majority of the world countries. Currently there is no harmonization of laws across jurisdictions, nor any international convention dealing with surrogacy so there are fundamental differences between countries regarding the regulation, legality and legal implications of surrogacy. There is a Table (1.1) given below which shows the current state of laws in the different countries of the world.

Table (1.1)

Status Countries
Legal India, Ukraine, Georgia and some States of USA like California, Illinois, Arkansas, Maryland, Thailand and New Hampshire
Commercial surrogacy is illegal, but altruistic surrogacy is permitted. Canada, New Zealand and Australia
 

Illegal

France, Germany, Italy, Belgium, Netherlands, Saudi Arabia, Finland, Hong Kong, Hungary, Iceland, Japan, Pakistan, Portugal, Serbia, Spain, Switzerland.
Status not clear Sweden

But the major factor which attracts such a large number of people from different corners of the world to come to India for surrogacy is that the commercial surrogacy industry is highly unregulated here. The laws related to surrogacy are inexistent in India and it a more favorable location for the couple who wants to avoid all the legal hassles and take home a child through surrogacy from a third world country like India.

The surrogate mothers involved are generally from poor households and in desperate need of financial help to sustain themselves. This fact is exploited by the middlemen who promise these women a better life in return of their service to act as surrogate mothers. Due to the state of laws related to surrogacy in India, there is a very high rate of these women being exploited for the services provided by them. The rights of the surrogate mother and the child born from surrogacy are of utmost importance. Hence there is a need for concrete legal framework to protect the interests of the surrogate mothers and the children born through surrogacy.

The only rules available for surrogacy in India are a set of guidelines prepared by Indian Council for Medical Research (ICMR) in the year 2005, to protect the right of the surrogate mother, the new born and the parents but it had its fair share of loopholes.  The Guidelines prepared by Indian Council for Medical Research (ICMR) are discussed below in Table (1.2).

Table (1.2)

ICMR Guidelines
All registered ART clinics are required to have procedures for acknowledging and investigating complaints, and to have a nominated person to deal properly with such complaints.
Lists down the Minimal Physical Requirements for an ART Clinic and Essential Qualifications of the ART Team.
Rights and duties of the clinic towards its patients. Screening of Patients for ART: Selection Criteria and Possible Complications.
Desirable Practices/Prohibited Scenarios, Requirements for a Sperm Donor and Requirements for an Oocyte Donor.

However, these guidelines do not hold any legal validity and lack enforceability. Although the ICMR Guidelines do exist, there is no central or state body to ensure that these regulations are followed strictly when it comes to surrogacy.[ix]

Baby Manji Yamada was a child born to an Indian surrogate mother for a Japanese couple who before a month of the child’s birth separated and the future of the child was left in dark. The biological father, Ikufumi Yamada wanted to take the child to Japan but the legal framework had no such provision for such a case nor did the Japanese government permit him to bring the child back home. In the end, the Supreme Court of India had to intervene and the child was allowed to leave the country with her grandmother. The biggest impact of the Baby Manji Yamada decision has been that it spurred the government of India to enact a law regulating surrogacy.

In August 2009, the Law Commission of Indian delivered the Report which stated that:

The legal issues related with surrogacy are very complex and need to be addressed by a comprehensive legislation. Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society viz. family. Non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. Active legislative intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto. The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.”[x]

On the suggestions given by the Law Commission the government made certain amendments to the Assisted Reproductive Technologies (Regulation) Bill, 2010, for the first time attempt to plug the loopholes which prevail in the field of surrogacy. Some important provisions of the Bill are as follows:

To ensure that there is a law to protect the interest of the surrogate mother and the child who is born through surrogacy, the Assisted Reproductive Technology Bill was drafted in 2008 to look into the rights and duties of the surrogate mothers. But the loopholes which were present in the ART Bill were highlighted in the case of Baby Manji Yamada[xi]. The ART Bill is further discussed below in:

  1. If a foreigner or a foreign couple seeks sperm or egg donation, or surrogacy, in India, and a child is born as a consequence, the child, even though born in India, shall not be an Indian citizen.
  2. The surrogate mother may receive monetary compensation for carrying the child in addition to healthcare and treatment expenses during pregnancy. [Section 34(3)].
  3. The surrogate mother will relinquish all parental rights over the child once the amount is transferred.
  4. The prescribed age-limit for a surrogate mother in between 21-35 years and no woman shall act as a surrogate mother for more than five successful live births in her life, including her own children.
  5. Both the couple or individual seeking surrogacy and the surrogate mother shall enter into a surrogacy agreement which shall be legally enforceable.
  6. If the foreign party seeking surrogacy fails to take delivery of the child born to the surrogate mother commissioned by the foreign party, the local guardian shall be legally
  7. Obliged to take delivery of the child and be free to hand the child over to an adoption agency, if the commissioned party or their legal representative fails to claim the child with Constitution of Authorities to regulate assisted reproductive technologies; establishment of National Advisory Board In one months of the birth of the child.
  8. Constitution of Authorities to regulate assisted reproductive technologies; establishment of National Advisory Board.
  9. Lays down the complete procedures for registration of clinics and complaints.
  10. Duties of an assisted reproductive technology clinic.
  11. Rights and duties of patients, donors, surrogates and children.
  12. Offences and Penalties for violation of the rules of this Act.

Interviews conducted with Dr. Nayana Patel of Akanksha IVF Centre

To do empirical research in the area, we approached Dr. Nayana Patel to provide us insight on how the commercial surrogacy industry works. After a couple of attempt to fix an appointment with Dr. Patel telephonically, when she finally came on the phone, we asked her the basic questions on what, how and when on surrogacy. When asked about the dark under belly of the commercial surrogacy industry the call was disconnected and the phone thereafter was not answered.

Then I received a call from Dr. Patel’s office and was advised not to ask such questions again or there will be no interview if these types of questions were asked. They agreed to answer questions through mail, due to Dr. Patel’s ‘very busy schedule’. As per there instruction a mail was sent to them, which had the questionnaire attached with it. The questions put forward to Dr. Patel were as follows:

The Interview

What happens to the surrogacy contract in case of a miscarriage? What if the baby is born with serious disabilities and is unwanted? Or what happens if the contracting couples change their mind about wanting a baby?
Up to 3 months, you pay 600 USD to surrogate + clinic fees up to 3 months. Up to 6 month you pay 1200 USD to surrogate + clinic fees till 6 months. After 6 months, you have to pay totally to surrogate + clinic fees up to that period of gestation (even if the baby dies) the couple has to accept handicap babies

Authors Note: Out of the three questions asked, only one was answered and above all we were provided with the information regarding the fee structure which was not even asked for.

How has the commercial surrogacy industry changed after the Baby Manji case?
Accordingly to ICMR guideline, if couple doesn’t come for baby, these is an a agreement

with government run orphanage.

Authors Note:  We were given the answer of the question which was asked by us in the previous set of the question.

Is there an under belly to the commercial surrogacy industry in India???
Baby M case did not have any social problem. it was only the passport (which because of the 1st Japanese case)

 

Authors Note: The answer of this question has not been provided to us again, instead we were provided with the answer of the question which we asked them in the previous question.

How does Akanksha recruit a surrogate mother?? Will it be possible to have a testimonial of a surrogate mother?
Screening of surrogate – HB, TC, DC, Platelet count, Random Blood Sugar, Blood group, VDRL, HIV, HBsAg, Hepatitis C, Serum Creatinine, SGPT, S.Bilirubin, Toxoplasma IgG IgM, APA, TSH, X-ray chest, Pap smear, USG abdomen + pelvic USG, Urine test, ECG and physician check up, psychological counseling, husband HIV, HBsAg, Hepatitis C.

 

 

Authors Note: – This is the only question to which we were provided with an accurate answer for, we were also provided with the contact details of few of their surrogate mothers.

It is clear from our surroundings that Indians don’t have a
Positive mindset about, commercial surrogacy, any recommendation on
how we can change that???
Well in this area, there is no negative attitude toward surrogacy.

Authors Note: Again we were provided with a vague answer.

What could be clearly inferred from the above responses to the questions is that either Dr. Patel (or any person answering on her behalf) did not understand the questions or was being evasive. Reluctance to answer questions raises the concern that if nothing illegal is going on in the Commercial Surrogacy Industry, then why be so tight lipped about what is going on?

Interviews with Surrogate Mothers

To further research on how Commercial Surrogacy Industry operates we were provided with the contact details of a surrogate mother from Dr. Nayana Patel’s office. During our research we could get contact details of another surrogate mother from a renowned journalist who did not wish to be named.

The Interviews which were conducted are discussed below as the case studies:

Case Study I:

Surrogate Mother Number 1: Mrs. Hansha Christian (Name Changed)

Age-44 yrs

How many times have you opted for surrogacy: Twice-2007, 2010

  1. When and how did you learn about surrogacy?
  2. ‘I work in Dr. Patel’s Clinic in Anand. There I used to see women coming to become surrogate mothers and couples coming from all over the world to get a child. I didn’t see any harm in this and so I requested Dr Patel’s to take me as a surrogate mother if she finds a couple suitable for me. ‘
  3. What were the main factors behind choosing to act as a surrogate mother?
  4. ‘I belong to a very poor family, my husband works as a driver in Dr Patel’s house and we had no other source of income. I didn’t have money to send my son to school and we didn’t even have a house of our own. So I decided to become a surrogate mother.’
  5. How has this changed your life?
  6. ‘I have become a surrogate twice now and it has completely changed my life. Now I have a house of my own, my son has completed his schooling and is now pursuing higher studies. I continue to work in Dr Patel’s Hospital and encourage more women to step forward as there is no harm in this and it fulfills our needs.’
  7. During the 9 months of the pregnancy does it ever feel like it’s not your own child and that you’re doing it for someone else?
  8. ‘You know it is not your child and that you’ll have to give him away to its real parents but as long as it’s there with you, for those 9 months it doesn’t feel like it’s not your own child. It’s in you and you take care of it like it’s your own baby.’
  9. How difficult is it to give away the child to its real parents?
  10. ‘The separation is always the most difficult part of this. You always knew you had to give away the child but when you really have to do it, it does hurt but then we don’t really have a choice. The first baby that I had was for a US based couple. The couple couldn’t come to take the baby for 2 months after the delivery due to some visa issues so I had to take care of the child for those two months, I did the feeding and everything so it became all the more difficult to let go of the child but even we know we have to one day give the child to its real parents who need him more than we do.’
  11. Do you need to stay away from your family for the duration of pregnancy?
  12. ‘It’s our own choice whether to stay at home or in the hostel. I stayed at my own house with my husband and son. I didn’t face any problems like staying away from family and all.’
  13. Do you think you get enough for the services rendered by you?
  14. ‘I come from a very poor household so whatever I got was sufficient to fulfill my needs and I’m completely satisfied with whatever I got as it was enough to send my son to school and allowed me to buy my own house.’
  15. What is the reaction of the people around you, your family when you told them about your decision to become a surrogate mother?
  16. ‘My husband was very supportive throughout the process, apart from him my family like my parents and my brother everyone knew about it. But my in-laws don’t know about this. We chose not to tell them as they may not like it.’
  17. Would you go in for surrogacy again?
  18. ‘I have already become a surrogate mother twice and my age doesn’t permit me to do it again so I won’t be able to do it but if I could then I definitely would’ve done it again.’

Case Study II:

Surrogate Mother Number 2 – Mrs. Pushpa (Name Changed)

Age-34 yrs

How many times have you opted for surrogacy – 2009, 2012

  1. When and how did you learn about surrogacy?
  2. ‘I got to know about this through a friend who was already a surrogate mother. I had accompanied her to Dr. Patel’s Hospital for the delivery; while I was waiting outside the room an NRI couple approached me and requested me to be the surrogate for their child.’
  3. What were the main factors behind choosing to act as a surrogate mother?
  4. ‘I come from a very poor family, I didn’t have money to educate my children and we didn’t even have a house of our own. So I decided to become a surrogate mother.’
  5. How has this changed your life?
  6. ‘I have become a surrogate twice now and it has completely changed my life. Now I have a house of my own, both my children are going to school and my daughter wants to be a doctor when she grows up. All this has been made possible because of my decision to become a surrogate.’
  7. During the 9 months of the pregnancy does it ever feel like it’s not your own child and that you’re doing it for someone else?
  8. ‘You know it’s not your child and that you’ll have to give him away to its real parents but as long as it’s there with you, for those 9 months it doesn’t feel like it’s not your own child. It’s in you and you take care of it like it’s your own baby.’
  9. What was your family’s reaction when they learnt about your decision?
  10. ‘My family, my parents don’t know about this. I have never told them that I’ve become a surrogate mother. Now that I’m married and have my own family only my husband knows about this and that is enough.’
  11. How did the society; your neighbors treat you when they got to know about your surrogacy?
  12. ‘Initially when people got to know about my decision to become a surrogate mother and that I’ve started visiting Dr. Patel’s Hospital for this their reaction was very negative. They stopped inviting me over for the gatherings, I had to go through a lot of criticism for doing this because there was no awareness about this process. But I knew once they will learn about this even they would want to go in for this.’
  13. Would you go in for surrogacy again?
  14. ‘Right now I don’t have plans for it but in the future I may do it again as there’s no harm in it’
  15. Do you encourage other women too for surrogacy?
  16. ‘Yes, I totally support it and encourage all women who are capable of becoming a mother to at least do it for the happiness it brings into someone else’s life. It is not something to be ashamed of; when you are helping someone you should be proud of it.’

CONCLUSION

The great Nani Palkhivala lamented that “We legislate first, and think afterwards; complexity is heaped upon complexity and the confusion becomes worse confounded, the avalanche of amendments only results in more litigation.”

That is the main issue with the Assisted Reproductive Technologies (Regulation) Bill, 2010, which has too many loopholes which have to be filled by the lawmakers. It is the need of the hour to have to have a comprehensive draft which will cover every single aspect of the commercial surrogacy industry, but it is clear from the survey which was conducted with the youth of the country, that there should also be something done to change the mindset of the nation. Like Ela Gandhi said “A law alone cannot solve the problems of society, the attitude of the people need to change.” We need to bring about a change in the mind set of the people. There is an urgent need of awareness about issues around surrogacy and the ways of offsetting the unethical and negative aspects of its commercialization. This is an issue involving both national and trans-national solutions.

 Edited by Hariharan Kumar

[i] NBCC, Surrogacy: Report 1, pp 3-4.

[ii]Hammurabi’s Code & Babylonian Law, available at: http://iws.collin.edu/mbailey/hammurabi’s%20code%20overview.htm, (Visited on August 21, 2014).

[iii] Bible Gateway, available at: https://www.biblegateway.com/passage/?search=Genesis+30%3A1-6&version=NIV , (Visited on August 21, 2014).

[iv] Glenda Emmerson , “Surrogacy: Born For Another”, Queensland Parliamentary Library, 8/96, 7 (1996).

[v] Dr. Malpani’s Blog, available at: http://blog.drmalpani.com/2014/03/infertility-in-hindu-mythology-dr.html , (Visited on August 21, 2014).

[vi] Mahabharat Chapter 6 – Birth of Pandavas and Kauravas, available at:

 http://www.india-intro.com/religion/mahabharat/67-mahabharat-kunti-gandhari-birth-of-pandavas-kauravas.html (Visited on August 21, 2014).

[vii]537 A.2d 1227, 109 N.J. 396 (N.J. 1988)

[viii]India Law Offices, available at:  http://www.indialawoffices.com/ilo_pdf/publications/Legalizing%20Surrogate%20Baby%20Business%20in%20India.pdf : , (Visited on August 21, 2014).

[ix] Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518 at 521.

[x]The Law Commission of India , 228th  Report on Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights and Obligations of Parties to a Surrogacy, ( August, 2009)

[xi] Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518.

One Reply to “Surrogacy: Whose Baby is it?”

  1. Really knowledgeable research paper. I came accross baby m case while surfing on net. And found it very disturbing issue that a child new born and already abandoned by biological as well by the mother who became the surrogate mother. Although laws are strictly getting followed making babies become orphan even though their biological parents are alive seems cruel and not acceptable based on moral basis. I wish laws will be changed to take more clear decisions about such matters henceforth and there will be no baby m cases.

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