Wombs On Hire: Searching For the Right Law

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New Delhi (Women’s Feature Service) – Surrogacy is suddenly front-page news. First there was the uncertain future of baby Manji, following the divorce of her Japanese commissioning parents; then the happy pictures of an Israeli gay couple with their son born to a Bombay-based surrogate mother. India is becoming a cheap location for foreigners wanting to use ‘assisted reproductive technologies’ (ART) and local clinics are promoting surrogacy arrangements because they are seen as lucrative ventures. While there is hardly any public debate on the ethical, social, epidemiological and medical questions around infertility and surrogacy, the extremely problematic ART Regulatory Bill (2008) is being hurried through. It barely addresses important concerns and ignores national health and population norms. It permits, for instance, three surrogate pregnancies to a woman.

To understand surrogacy in the Indian context, one must begin with the fact that while the Transplantation of Human Organ Act, 1994 banned sale of human organs, organ loaning – equally difficult and risky – is being promoted through paid surrogacy. This is due to a medical industry that welcomes all profitable ventures like ‘reproductive tourism’, even when infertility constitutes a small segment of local priorities. Total infertility is estimated at about eight to 10 per cent, and for the vast majority of Indian women it is preventable as it is caused by poor health, nutrition, maternity services and high levels of infections. Only about two per cent of the cases are because of ‘primary’ infertility amenable to ART alone.

Because ART amplifies deep-seated notions of “blood”, now bolstered by genetics, it tends to overshadow safer, cheaper and more progressive options like adoption. ART clinics do not provide reliable information about low rates of success, the probability of multiple pregnancies and the high possibility of foetal abnormalities.

The starting point for tackling the question of surrogacy is in recognising that this new technology splits up older notions of natural reproduction into three parts – ‘social’ parents, a gestational mother, and the genetic matter that links the first two. The ‘stakeholders’ thus created often have conflicting interests – the “commissioning” parents; the surrogate mother; her family, if any; the new baby; and the commercial sperm banks and ART clinics.

Ethical practice must take its cue from the experiences of surrogate mothers, who – motivated primarily by a shortage of personal income – often endure the social stigma associated with surrogacy. They may leave their homes, lie about the parentage and claim the death of the baby after it has been handed over.

Given this situation, the State must strive to help create an environment free of secrecy and anonymity. As equality and volunteerism may be rare in surrogacy agreements, arrangements to ensure informed consent, proper counselling and legal assistance for drawing up contracts for safe procedures, as well as total health care insurance and compensation, must be ensured through the state regulatory institutions proposed in the Bill. A surrogate mother should not only have the right to abortion but also to keep the baby if she cannot part with it. Her name should be on the baby’s birth certificate and parentage legally transferred to the new parents later. Her family should be aware of the contracting parents and be included in health care arrangements.

Today, ART markets as well as the State emphasise relationships of blood and the genetic basis of paternity, marginalising the essential social and biological contribution of nurturing children in an enabling environment. Is it ethical to use prevailing social constraints that prevent open surrogacy arrangements, to promote the business of surrogacy and ART? The amount of compensation given to the surrogate mother is another particularly difficult aspect when what is involved is the creation of life – a baby no less. It is telling that in the West up to 50 per cent of the total cost goes to the surrogate mother while in India most of the money is appropriated by sperm banks, ART clinics and lawyers.

There is also an in-built bias against the newborn baby as the surrogate mother is constrained to underplay her bond with the growing baby from the beginning. Early separation is at the cost of the baby’s immunological and psychological health. The baby is denied the right to breastfeeding even for three months. This aspect is completely ignored with the burden of surrogacy being shifted to one who cannot protest. Every child born through ART, whether disabled or one of a multiple pregnancy must have the same rights of survival and care as any other child. The proposed right of social parents to ask for “pregnancy reduction” goes against this.

The social parents, too, must not simply be commissioning agents, but participants in the custody and nurturing of the baby. There is the opportunity here of involving both parents equally and early – whether heterosexual, gay or lesbian – and, therefore, of challenging patriarchal and biologistic notions of mothering. Same sex couples and single parents in India must be beneficiaries of surrogacy. Adoption laws need to be improved or amended, so that all religious groups can promote adoption.

ART is widely canvassed for its scientific potential – stem cell research and cloning. The proposed Bill, too, defines surrogacy as “a pregnancy achieved in furtherance of ART” and, therefore, does not address unethical practices and exploitation sufficiently. The State and the public must debate the issue: How are the interests of the baby to be best protected? What are the rights of the surrogate mother? What should the role of the adopting parents be? All these three actors should converge within an ethical framework.

In an age of science and globalisation, surrogacy should be seen as an opportunity to question patriarchal conceptions of the family and social perceptions of infertility, not deepen ties of blood and inequality.

Womens Feature Service covers developmental, political, social and economic issues in India and around the globe. To get these articles for your publication, contact WFS at the www.wfsnews.org website.