Predicament of Commercial Surrogacy in India

                                               Dr. Lulabi Pattanayak

Abstract:

‘Come let’s conceive hope’ was the punch line of ‘Miracle Fertility and IVF clinic’ in Gurgaon; I see this flyer inside my news paper almost every morning. Yet, all these days I have hardly pay heed to what these clinics were doing! Reading about Amir and Shahrukh’s surrogate child and occasional articles on surrogacy in daily publication did not invoke my thought enough to probe beyond obvious facts, till I probe deeply into the dynamics of commercial surrogacy in India for my research work. I had accepted that, these fertility clinics are doing great job by creating an opportunity for childless parents to experience parenthood!!

Commercial surrogacy is often portrayed as ‘win-win situation’ or depicted as ‘each side is helping other’ or glorified as ‘God’s blessings for poor, needy women’, or ‘Tapasya (penance) to achieve something in life’ but predicament of commercial surrogacy is much beyond all these.  This paper is an attempt to explore the nuances of fertility industry- its economic, social, ethical and legal aspects which put surrogate mother-the key player, in a most vulnerable process called ‘commercial surrogacy’.

 

Introduction:

Surrogacy or transfer of embryo is not a new concept to India. It refers to the Hindu mythology as old as birth of seventh child of Krishna’s parents Devaki and Vasudeva, where 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 Kamsa(Devaki’s brother). Reference of surrogacy is also evident in Mahabharata where the birth of Draupadi out of Yagnakunda was outcome of supernatural power of Rishis and AIH procedure. [1] There is no conflict between Hinduism and assisted reproduction; it is generally accepted as a form of treatment and not an infringement on religious belief.

Among handful of countries, India is one of the leading country where commercial surrogacy is legal. Somewhere behind booming fertility industry and legalizing the practice of commercial surrogacy in India, it has been accepted in our subconscious mind and our belief and culture that it is not illegal or unethical. In Islam it is considered as Haraam (forbidden) to form the embryo by the fusion of a woman's ovum with the sperm of a man other than her husband, whereas Hinduism does not consider surrogacy or transfer of embryo as illegal and immoral.[2] In Christianity, using a surrogate mother to bear children for a childless couple is as old as the story of Abraham and Sarah, but Bible too raises questions as to whether or not it is ethical. The Bible says that, children are a gift not a right. Because of the moral and ethical ambiguity surrounding surrogacy, many countries including China, the Czech Republic, Denmark, France, Germany, Italy, Mexico, Saudi Arabia, Spain, Sweden, Switzerland, Taiwan, Turkey and some US states ban surrogacy altogether. There are some countries who have imposed partial bans, such as Australia(Victoria), Brazil, Hong Kong, Hungary, Israel, South Africa and the UK. Amongst these later group of countries Canada, Greece, South Africa, Israel, and UK permit gestational surrogacy, subject to regulations. Third group of countries are those who have no regulations at all, among them are Belgium, Finland and India.[3]

There are two types of surrogacy mostly practiced, i.e. Natural (traditional) or Gestational.

In Traditional/ Natural surrogacy the surrogate may be conceived via sexual intercourse, home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra-cervical insemination), which is performed at a fertility clinic.  The child thus produced is genetically related to the surrogate and to the male but not to the commissioning female partner. In Gestational surrogacy, wife egg is fertilized in vitro of the husband’s sperms through IVF procedure and then the embryo is transferred into the uterus of surrogate mother. In gestational surrogacy, a surrogate is only a carrier/female host and is not genetically or biologically related to the child. The Surrogate is implanted with an embryo that is not her own, and becomes pregnant with a child to which she is not the biological mother. After birth, the surrogate relinquishes the child to the biological mother and father. The surrogate mother may be called a gestational carrier.

In commercial surrogacy, a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save or borrow in order to complete their dream of being parents. In contrast to commercial surrogacy, altruistic surrogacy is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child except expenses related to the pregnancy and birth.

There are only handful of countries like Georgia, Russia, Thailand and Ukraine and a few U.S. states along-with India where women can be paid to carry another child, through in-vitro-fertilization (IVF) and embryo transfer.

 

Surrogacy in India:

In the discussion of surrogacy it is often forgotten that, India was one of the pioneering countries to experiment with IVF technology. The world’s second and India’s first IVF (In Vitro Fertilization) baby Kanupriya alias Durga was born in Kolkata on 3rd Oct, 1978, i.e. thirty five years back!! After 26years of first IVF baby, India was again in news for IVF, which stirred the world when in 2004 grandmother gave birth to her grandchildren. In 2004 in India IVF specialist Dr. Nayana Patel owner of Akanksha Clinic in Anand, helped a UK based Gujarati patient to have a baby by using women’s mother, that is the child’s grandmother, as surrogate. 

Assisted Reproductive Technologies (ARTs) a group of technologies assist in conception or in the carrying of pregnancy to the term. India opened up-to commercial surrogacy in 2002, yet this incident raised many social, ethical and moral questions. But after this success story in 2004 the fertility industry in India expanded in leaps and bounds. It is just not in Anand, but in all major cities of India fertility tourism expanded manifold. Not much statistics is available on commercial surrogacy, as players of this industry are reluctant to disclose the facts. It is still a hush-hush affair. Every actors of this play maintain some kind of silence to conceal the facts, whether it is doctor, clinic or surrogate or middleman or lawyers or any actors involved in this play.

In the absence of any kind of regulatory or monitoring mechanism, it is difficult to arrive at the exact statistics pertaining to the existing surrogacy industry in India. Grossly it is assumed that, some 2,000+ odd surrogacy procedures are done annually in the country. Surrogacy is growing very fast with 15-20 percent rise in numbers every year. However a UN study in July 2012, estimated that the surrogacy business was more than USD 400 million a year, with over 3,000 fertility clinics across India.[4] India has become ‘Mecca’ for ‘reproductive travel’, offering surrogacy services to couples from North America, Europe, Australia and other continents. The Akanksha clinic in Anand, a small town in Gujarat is the best known at home and abroad as a ‘surrogacy capital’ of India. Anand is unlikely trail- blazer to the cause of surrogacy. In just three-and half years with a town of 150,000 people has produced more than 500 surrogate babies than any other in the country. Out of it two thirds of them are for foreigners and NRIs living in over 30 countries. Charging couples an average of $25,000-$30,000, a fraction of the cost in the United States, i.e. something between $1, 00,000-$1, 20,000.

Nationwide there is no reliable statistics which would track such pregnancies; but doctors are working with surrogates in virtually every major city. India is the first developing country with flourishing industry in national and transnational commercial surrogacy. Indian women are considered traditionalist, yet in spite of social stigma attached to the whole process of commercial surrogacy, many women are willingly opting for it. For Dr. Nayana Patel, it is a win-win situation. Patel argues, ‘If this female wants to help the other one why not allows that? It’s not for any bad cause. They are helping one another to have a new life in this world.” India’s surrogacy industry is vilified by women’ rights groups, who say fertility clinics are nothing more than ‘baby factories’ for rich. According to women activists, the poor and uneducated women are lured by agents and clinics and sign contracts they do not understand fully. In May2012 a 30-year old surrogate mother died after delivering a child for an American couple in Gujarat, it was recorded ‘accidental death’ by police.[5]  Globally India is the most favored destination for fertility tourism, many from overseas hiring local women to carry their embryos to birth. Multimillion dollar industry and rising numbers of overseas clientele raise serious questions, why India?  

 

Why commercial surrogacy is booming in India? Exploring its dynamics:

There have been significant advancements in the reproductive technologies since first IVF baby in India in 1978, but rapid growth of reproductive travel in India is only a fraction due to this improvement in technologies. The credits of boom in surrogacy industry go to the following factors, they are:

Surrogacy comes at a reasonable price in India. The total cost of transnational surrogacy packages in US is between USD100, 000 to USD120, 000, whereas in India the package costs a third/fourth of that amount. In India having a child costs anything between Rs.10lakh-25lakh. These costs include in-vitro fertilization, caring for the surrogate for her full term pregnancy, the surrogate fees and living expenses for the intended parents etc.  India’s pull as a surrogacy destination is mainly due to its absence of law and low cost. Absence of any kind of regulatory or monitoring mechanism for ARTs industry in India attracts more transnational clientele for fertility tourism. In India there is no paper work involved, the couples do not have to go through any lawyers and no litigation. It is a clean issue.  Moreover, it is far simpler to become legal parents in India, unlike countries like UK and Australia which consider surrogate as legal mother. In India intended parents are legal parents. As in India most surrogates belong to lower middle class, they undertake surrogacy for some extra money. It is unlikely that they would stake a claim to the children they bear. Hence couples do not have fear that Indian surrogates will refuse to give up children they bear. In order to lure overseas couples print and electronic media play very important role. The primary marketing tools used are ‘exclusive package deals’ offered to the clients. Stringent legal procedures in their homeland. Shorter waiting time due to large pool of women willing to be surrogates. Possibility of close monitoring of surrogates by commissioning parents in India focuses on giving parents the maximum chance of successful pregnancy. In India the biggest selling points of the clinics is that it runs several surrogacy hostels where the surrogates are literally kept under constant surveillance during their pregnancy. Their food, medicines and daily activities is being monitored by medical staff. The existing medical expertise and infrastructure are comparable to international standard. Country earns foreign currency. Medical tourism industry is also an avenue to enter surrogacy industry. Though majority of the overseas medical travelers are cardiac patients and also come for knee replacement but reproductive tourism, cross border reproductive care (CBRC) is the latest addition to the ever growing list of services in medical tourism market. Elaborate procedure and complicated adoption bill inhibits people from adoption and motivates to opt for surrogacy. Surrogacy seems like a lucrative alternative for both poor, illiterate surrogate mothers and infertile couples get long desired biological related baby.

Over the past few years with rising infertility among young couples across the globe, there is an explosion of fertility services in India. India has appeared to be the most favored destination for commercial surrogacy.  The industry which is worth more than USD 400million is an integral part of our country’s medical market and medical tourism industry. With the rising rate of infertility, demanding role of women in workforce, to evade the passing on of hereditary disorder or medical related issues of couples, acceptance of same sex marriages/union and recognition of the basic human right to have family and children has given rise to commercial surrogacy manifold in India. In India many from overseas are hiring poor, young, local women to carry the embryos to the term.  But the primary condition is that at least one of the intended parents must be biologically related. In India, where either of the intended parents is not biologically related there opting for surrogacy is not allowed. It is also prevalent in other countries where surrogacy is legalized. This is one of the key reason behind preventing same sex couple or single parent from surrogacy.

With boom in fertility tourism the field of assisted reproductive technology (ART) has developed rapidly. But one thing which is evident from this trend is that- the commercial surrogacy in India is closer to the liberal market model of surrogacy in California, where surrogacy births are primarily managed by private and commercial agencies. They screen, match and regulate agreements according to their own criteria. The clinics in India not only operate without state interference but they often benefit from the governmental support for ‘medical tourism’. In past few decades medical tourism is gaining momentum in India, which is second to Thailand generating USD 2.3 billion annually( Brenhouse 2010)[6]. It is very surprising that when GDP is declining, how the market for surrogacy industry and medical tourism is on the rise?

Commercial surrogacy is often portrayed as a win-win situation. It appears give ‘desperate and infertile’ parents the child they want and ‘to provide poor surrogate women the money they need’, but reality is even grave. With the growing globalization of capital and shrinking local avenues for jobs and resources, women from the marginalized communities and regions find themselves more impoverished, powerless and vulnerable. For these women, access to work and occupations has decreased over time, while new markets have opened up for both their sexual and reproductive labor. Commercial surrogacy for domestic and international markets is one such avenue and is gaining ground in many urban and semi –urban areas in India today.  

This definitely raise one pertinent question is- who are the actors negotiating these transnational deals of ‘dream come true’ between two unknown women? This is no simple equation between clinics, surrogates and the intended parents. This industry revolves around several other players who are engaged in providing and promoting ARTs. The players are:

Wide array of organization and personal catering to clientele both national & international. Health care consultants Various bodies of hospitality industry Travel agencies Law farms Surrogacy agents Tourism departments Surrogacy hostels etc.

Print and electronic media play key role in luring these overseas clientele, for example- one website announces, ‘See Taj Mahal by the moonlight while your embryo grow in a Petri dish’ and another very wittily named ‘http://karmaofbaby.blogspot.com’, advertises a deal that not only includes ‘IVF and surrogacy with talented /UK trained doctors, clinics with excellent sanitation and modern facilities and full legal support’, but also ‘a clean and luxurious bed and breakfast, accommodations in a posh locations in town, transportation, a mobile phone while in India and also sightseeing tours for the client’. Apart from this, to lure both domestic and overseas clientele significant numbers of websites are also created by different players of ART industry. Some of the sites exclusively focuses on overseas couples by promoting ‘packages’ which include several ‘incentives’, ‘discounts’ and ‘deals’ with regard to services provided. Many ART clinics have tied up with foreign hospitals to expand their foreign clientele. But package deals aside, clients are more drawn by complete absence of regulations in India. 

Throughout the period of the surrogacy arrangement, there is a common motive of all the actors involved in this process. That is to ensure the birth of healthy child and to ensure relinquishment of the child by the surrogate to the commissioning parents. Undoubtedly, the commerce of surrogacy is the central factor that draws all the actors in the industry together-the commissioning parents, who for a price have their child through surrogacy, the surrogate who by ‘giving’ a child is able to earn money, the doctors, surrogacy centers and agents facilitate this process for substantial returns. But implications of complete absence of law, low investment, higher supply of surrogate mothers, and presence of wily agents, cumulated with poverty and illiteracy hardly leave the desperate poor women with any choices.

 

Predicament of unregulated surrogacy in India:

Supporters of surrogacy highlight the overwhelming life opportunities for these surrogates. But in a developing country like India where there is no law on commercial surrogacy and ICMR guidelines are flouted, hierarchy between giver and taker, cumulated with illiteracy and poverty make the commerce of surrogacy industry more complicated.  There is no doubt about that, with increasing competition among clinics, will only compromise with the safety measures for these women and this powerless women would be left with very little choices. The predicament of unregulated surrogacy in India is multidimensional in nature.

In the rising trend of ‘rent-a-womb’ process one question is very pertinent, that is- how much control do these women have over their bodies and reproductive capacities?  Feminist might argue on women’s autonomy to choose their lifestyle, sex and reproductive system. With that premise in mind, it is also important to reflect that hosting a surrogate pregnancy dehumanizes her and imposes a new form of paternalism. If we ask how much choice they really have? May be women is left with no choice. With four or five children, an absentee husband, elders to care, with limited or no education and economic desperation compel them to opt for surrogacy. Even if we want to question her decision, it is quite a challenging situation. How can one know whether her intimate partner- her husband, forced her to ‘volunteer’ services to rent her womb or not? In patrilineal marriage system, where mother-in-law too excise power over their daughter in-law, there mother-in-law too can pressurize her to undertake surrogacy arrangements. Within the family and outside the family these hapless women are left with very little options.

The Unregulated commercial surrogacy has tremendous effect on Indian society and its social fabric. Across the nation, many poor women are shedding their inhibitions, opting for ‘womb on rent arrangement’ to have a better future for their family. To them it is ‘easy money and no investment’. Yet in their subconscious mind deep rooted social stigma cannot be ignored. Surrogacy has been legalized in India since 2002, but our society still consider artificial insemination equivalent to adultery. That’s why, surrogates often migrate from their native land for good to undergo this process and keep the pregnancies secret from their family and friends. They fear of- social exclusion and humiliation by their fellow being. In this scenario, the existence of voluntary choice of opting for surrogacy is debatable, if not arguably invalid.

The ease with which rich foreigners are able to ‘rent the womb’ of poor Indian women creates the potential for exploitation and these potential mothers are compelled to accept this exploitation of rich to the poor. Exploitation, extortion and ethical abuses in surrogacy trafficking are rampant, go undeterred and surrogate mothers are misused with impunity. The overseas clientele are well aware of their financial status, and also of the surrogates. Though most intended mothers accept the fact that the incentives for hiring surrogates in India range from easy laws to control over surrogates, but many often try to underplay the financial motivation of it. They claim that, to them it is another mode of charity, to bring difference in someone’s life living in utter despair. For them primary motivation behind opting surrogacy in India is not the cost factor, but the desire to transform the life of a family living in desperate poverty.[7] This aspect further brings the economics of commercial surrogacy into discussion of class of have and have-nots and the clash between two. ART Bill would remain incomplete without addressing these dynamics.

Quite often ICMR guidelines are flouted, whether it is contract among two parties, agreement/consent of husband, insurance for the surrogate mothers, mode of payment or artificial insemination procedure, carrying expenses of the child, sex selective abortion or in case of destroying embryos. Violation of ICMR guidelines have become practice as India focuses on giving parents the maximum chance of a successful pregnancy. Implanting multiple embryos is dangerous, yet mostly clinics implant more, i.e. five to six embryos instead of three to four embryos. Put the life of surrogates at risk. The UK regulator, the Human Fertilization and Embryology Authority (HEFA), says that, multiple pregnancies can increase the risk of still birth, neonatal death, and disability for the child, complications for the mother, including late miscarriage, high blood pressure and pre-eclampsia[8], still clinics prefer to go for multiple pregnancies. For many Indian clinics this is ‘the deal’, like ‘buy one get one free.’ Firuza Parikh one of the fertility expert says that there is a risk to both sides. According to her, “This sector goes beyond medical boundaries and that is where the grey zone begins. There are pressures on doctors for twins through surrogacy and this may result in doctor putting more embryos to ensure a pregnancy and sometime multiple gestations”.[9] Overseas client do not object to this kind of offer, because in this procedure their investment and recurring expenses are less. Surrogate mothers as usual are lured to accept it for some extra money. To them extra money buys extra comforts. They risk their life for their children’s better future.

Putting surrogate’s life at stake for money does not always ensure that surrogate mothers get their due. Rather in this play they are the loser, being in the lowest rung in the hierarchy. Though ICMR has given guidelines for ART procedures but in the existing commercial surrogacy industry, modes of payment are structured in such a way that all agents have ample avenues for exploitation. It is often portrayed as win-win situation, but the reality is bitter. The illiterate, poor surrogate mothers are not even aware of the contract and commerce of this deal. Contract written in English further put them in a more disadvantageous position. Even if they can read some kind of English, the actors of the play ensure that surrogates know minimal about the contract. A study by SAMA[10] had revealed that, in many instances surrogates have no clue about the contract made between them and the commissioned parents. Moreover, their socio- economic status hardly gives them the scope to make choices. Clinics and agents dictate terms.

Lack of proper ART bill is silently indulging malpractices in Indian fertility industry. Leading to exploitation, extortion and ethical abuses in surrogacy are rampant. Most of the commissioning couples are affluent, so there is clear hierarchy, hence ensuring further exploitation. Modes of payment in fertility industry vary with clinics to clinics, place to place. In some place payments to surrogates were either made directly through commissioning parents or were made through agents and consultants. But in most cases surrogates are restricted from having dialogue with commissioning parents. A study by SAMA[11] in Delhi and Punjab fertility clinics revealed that, these women get full amount when they directly communicate with commissioning parents. Due to intervention of agents surrogates gets reduced remuneration. But in another study conducted by Pande[12], on surrogacy in India in cities like New Delhi, Mumbai, Bangalore, Ahmadabad and Kolkata revealed very different fact. According to her, even if surrogates directly communicate to commissioning parents and have healthy relations between two, this relation does not ensure fair remuneration to the surrogates. Rather, ironically these bonds between surrogates and intended parents made the remuneration structure even more informal, often detrimental to the surrogates. In some occasion there is no contract at all. They say, ‘you make us happy we will make you happy.’ In such cases surrogate herself was unwilling to discuss the payment structure because of sisterly ties with intended mother. Surrogates seemed to be resisting the commercial and contractual nature of their relationship, by establishing some kind relationship with the intended mother, a bond of global sisterhood. They dream that wealthier/white family would come to rescue them from desperate poverty and bleak future-ultimately reinforce subjection based on race and class.

The contract establishes the legality of the arrangements between commissioning parents and surrogates, yet this legality too reaffirms and reinforces the unequal footing; completely ignoring the surrogates in this arrangement. The surrogate is always in a disadvantageous position, hardly has any access to legal aid or action. They seldom have access to information about the arrangement and the treatment they are entitled to. Hence contract is a tool aimed at minimizing any conflict or contestation over the commissioning parent’s rights to the child, leaving out a whole array of crucial issues that needed to be negotiated and settled as the terms of this arrangement. From SAMA’s[13] study on surrogacy industry it is evident that, surrogates had hardly read the agreement that they had signed. They were considered legitimate signatories when spousal consent had been acquired. In many cases for utter desperation for money the husband is also lured to give consent, without proper knowledge of the consequences of the ARTs process. The contract becomes a security for the commissioning parents while surrogates have none, with no control over and no say in the matter. Hence compel the women to be more vulnerable and powerless than before.

Similarly, counseling services were extremely important for both the commissioning parents and the surrogate but, they are hardly offered in the fertility clinic. In Akanksha Infertility clinic Dr. Nayana Patel emphasizes on counseling, but how far it explains about the IVF procedure and its dynamics is doubtful. Patel defends her work as meaningful for everyone involved in this process. She convinced the surrogates by telling them that, there is one women who desperately needs a baby and cannot have her own, there is women who wants to help her family but cannot do it alone. According to her if these two women help each other and create a new life what is so wrong about it? In this counseling the crucial issues of contract gets diluted. Surrogate mothers were told that, ‘treat it like God’s gift to needy women. But don’t be greedy’.  Pande’s study [14] supports the fact.  She said that, again and again it is reinforced through different players of fertility industry is that- surrogacy is an opportunity for the poor women to help their family. A study conducted by SAMA[15] showed that no matter whatever be the reason financial desperation is the key reason behind opting for this procedure. A few surrogate mothers expressed their views, according to them, “It’s a compulsion, otherwise no one wants or enjoys bearing someone's child. No one bears child and gives it away to others.” In India where children are dying of hunger, mother is selling her own child, there surrogate mother is left with very little choices.

Complete absence of law has made women more vulnerable than before. There are reports where young vulnerable girls from orphanage were ‘hired for surrogacy’ by wily agents and these surrogate mothers themselves never got money. Even if they got any money, these powerless, vulnerable women could hardly dictate any terms.[16]

This industry involves thousands of active players in disguise, in the form of law farms, travel agencies, surrogate agents; but ART Bill does not cover any of these. The dubious roles of these agents are also huge grey area. Even if ART Act is formulated neither surrogate will be benefited nor their rights would be protected, it will only limit the number of foreigners coming to the country for the procedure.

Unregulated transnational surrogacy and complete absence of law definitely raises concern over citizenship. As India does not offer dual citizenship, children will have to convert to Overseas Citizenship of India, if they also hold non Indian citizenship. Unless appropriate law is formulated and the law takes into account the every nuances of ART procedure, cases like baby Manji and Jan Balaz will be a regular phenomenon in Indian court. 

Transnational surrogacy without appropriate law back up too raises other concern, a report reveals that in Bombay Airport a foreigner couple were identified who confessed that they went for surrogacy in India only for organ transplant for their sick children in their country.[17] With the booming fertility tourism in the country, surrogacy trafficking is also in the rise. Our ART bill does not address these grey areas.

Surrogacy is not like donating organs, driven by the circumstances women is forced to relinquish the child, she had born for nine months. For her it is extremely agonizing experience in her life. Opting motherhood purely for money could severely dent the self esteem. Apart from this these surrogate mothers too compromise with physical, social and emotional needs. During pregnancy surrogates are not allowed to have marital relations and asked to stay from their husband and children, is an emotional stress for surrogates in itself. Moreover, relinquishing the baby put them under extreme trauma and emotionally devastating though they know they are doing for money. May be due to the urge of knowing about the child often compel the surrogate mother to compromise with the contract and encourage bonding with commissioned parents. This further marginalizes them and opens up more avenues for exploitation.

 

Concluding remarks:

Commercial surrogacy is culturally disruptive, morally ambiguous and potentially exploitative. This is an area which is fraught with social, ethical, legal and moral questions and dilemmas with far reaching impact.

The ICMR has a set of guidelines, but it is not clearly stated whether these guidelines are mandatory or not, what actions should be taken in case of breach of contract. Fertility clinics are free to take or reject the suggestions made by the Guidelines for Accreditation, Supervision and Regulations of Assisted Reproductive Technology issued by ICMR in 2005. ICMR has submitted final draft to Law Ministry in 2010, even after 3years laws related to surrogacy are still in the nascent stage. Until law is passed clinics would continue to work in legal vacuum.

Till date there is no proper Bill for practicing surrogacy, even if the ARTs Bill is formulated, it will not benefit the surrogates. Only it would limit the number of foreigners coming to the country for the procedure. Surrogacy markets would become more and more competitive in coming years, as Ukraine and Thailand are offering lesser price. As a consequence to this, Indian fertility clinic to capture the overseas clientele might compromise with safety measures of surrogate mothers and put these poor women’s life at stake.

Nations all across the globe are condemning commercial surrogacy as it results in commercialization of human reproductive system and commodification of children. Medical innovation and technology make it possible to destabilize the linear categories of biology and kinship. In this context ‘natural’ biology and parenthood is being seriously challenged. Whose interest is being served by particular deployment is in itself is a big question mark?

The experience of motherhood is priceless; in the whole process of surrogacy it is somewhere lost. Only commerce part of it is most important for all the agents of the industry. To address all these issues of commercial surrogacy, apart from legality, careful deliberations by all stake holders of the society and consistent monitoring of ARTs process is essential. To curb surrogacy there is a strong need to modify and make adoption process simple for all. Altruistic not commercial surrogacy should be encouraged. Laws should be framed and implemented to focus the grey areas and rights of women and children.

Bibliography:

Anu, Kumar Pawan(et al), (2013), (Review article),“Surrogacy and women’s rights to Health in India: Issues and perspective,” Indian Journal of Public Health, Vol. 57, Issue 2,(April-June 2013). Shetty, Priya,(2012), “India’s Unregulated surrogacy industry”, The Lancet, Volume 380(issue 9854), pages-1633-1634(10November2012) Sinha, Kounteya,(2011), “Surrogacy Market: Wombs under watch”, Times of India Crest Edition, (May 21, 2011) Thomas, Shibu,(2011), “Fertility market-Two men and a baby,” Times of India Crest Edition, (July 2, 2011) Center for Social Research(2011), “Surrogate motherhood-Ethical or Commercial”,

http://csrindia.org/blog/2013/07/18/surrogacy-ethical-or-commercial (accessed 01/02/14)

Datta, Pronoti, (2010), “Mother India-Surrogacy goes into labour”, Times of India Crest Edition, (May 15, 2010)   Stanford University-(2008). “Surrogate motherhood in India-Moral & Ethical Implications,”http://www.stanford.edu/group/womenscourage/Surrogacy/moralethical.html (accessed 02/02/14). Malhotra, Anil and Ranjit, “Commercial Surrogacy in India-Bane or Boon”, http://www.reunite.org/edit/files/articles/COMMERCIAL%20SURROGACY%20IN%2... (accessed 02/02/14).

 

[1] Ansari, M Nausad, Surrogacy in the mirror of Hinduism and Islam, www.twocicles.net/2011oct11/surrogacy_mirror_hinduism_and_islam.html (opened on 01/03/14)

[2] ibid

[3] Pande, Amrita, 2012, “Transnational commercial surrogacy in India: gifts for global sisters?”, www.philpapers.org/archive/PANTCS.pdf (02/02/14)

[4] Bhalla, Nita and Thapliyal, Mansi, (2013),- “India seeks to regulate its booming ‘rent-a-womb’ industry”, www.reuter.com/article/2013/09/30/us-India-surrogates-idUSBRE98T07F20130930(accessed on 01/03/14)

[5] ibid

[6] Pande, Amrita, 2012, “Transnational commercial surrogacy in India: gifts for global sisters?”, www.philpapers.org/archive/PANTCS.pdf (accessed on 02/02/14)

 

[7] Pande, Amrita, 2012, “Transnational commercial surrogacy in India: gifts for global sisters?”, www.philpapers.org/archive/PANTCS.pdf (accessed on 02/02/14)

[8] Taneja, Poonam,(28Oct2013), “The Couples having for babies by two surrogates,” www.bbc.com/news/uk (accessed 03/02/14)

[9] Ghosh, Padmaparna(2012), “Birth Right: Surrogacy Laws: No one’s child(1st September2012)

[10] SAMA Resource group for Women &Health,(2012), “Birthing Market-A study on commercial surrogacy”, www.samawomenshealth.org/downloads/Birthing%20A%20Market.pdf(accessed (02/02/14)

[11] ibid

[12] Pande, Amrita, 2012, “Transnational commercial surrogacy in India: gifts for global sisters?”, www.philpapers.org/archive/PANTCS.pdf (accessed on 02/02/14)

[13] SAMA Resource group for Women &Health,(2012), “Birthing Market-A study on commercial surrogacy”, www.samawomenshealth.org/downloads/Birthing%20A%20Market.pdf(accessed (02/02/14)

[14] Pande, Amrita, 2012, “Transnational commercial surrogacy in India: gifts for global sisters?”, www.philpapers.org/archive/PANTCS.pdf (accessed on 02/02/14)

[15] SAMA Resource group for Women &Health,(2012), “Birthing Market-A study on commercial surrogacy”, www.samawomenshealth.org/downloads/Birthing%20A%20Market.pdf(accessed (02/02/14)

[16] Solanki, G, A (Oct 2012). “Birth orders, Baby firms and Surrogate Motherhood- Womb for Rent”- Global Research Analysis, Vol.1 (5), pg-103-105.

 

[17] Cook, Michael, (21July, 2013). “Survey of Indian surrogacy reveals shocking abuses”, www.bioedge.org/index.php/.../10612 (accessed on 03/02/14)

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Comments

Hello Dr. Pattanayak!

Wow. You wrote such a very educational and beautiful article. Your conclusion already says it all -  "Commercial surrogacy is culturally disruptive, morally ambiguous and potentially exploitative. This is an area which is fraught with social, ethical, legal and moral questions and dilemmas with far reaching impact." The world is going into so many aspects of technological and social changes but some carry with them unexplored possibilities that may impact us in greater depths. It's sad that many do it for selfish financial considerations without concern on how this impacts  the community and what I think is more important - how it can impact the human carrying the burden of being a surrogate mother. I am torn between condemning such practice and accepting that its existence has given  hope to couples who cannot have children. It's a reality that holds a lot of questions in one's mind because unchecked and with a lack of legal, ethical  and even technical guidelines to implement it, so many can suffer its consequences while others immorally profit from it. 

Thank you for sharing such a wonderful article. 

Lylin

Thank you Lylin, for your kind words. Your words are very encouraging. In developing countries where women seldom are allowed take financial decisions, surrogacy is another dreadful mode of exploitation of women.

Hello Dr. Pattanayak:

Thank you so much for your analysis. I don't have much knowledge in this area but i have seen many advertisements, posters, and fliers on bus stations and such about the subject. The interesting part is that, i notice prices adertised for potential surrogates differ by neighborhood/community, and the language used in these communities to get surrogates also differ. Because of the power dynamic (social, economic, political) at play in the surrogacy process, there should be some sort of regualtion that protects (not infringe) women that decides to particate in this process. Your post has encourage me to look into this subject more. Thank you for sharing!

Deborah Dauda, Artist. Educator. Activist.