Tag: surrogacy

Surrogacy

Recently, a petition was filed before Delhi High Court, challenging the exclusion of a single man and a woman having a child from surrogacy and demanding commercial surrogacy’s decriminalisation.

The Petitioner argued that the personal decision of a single person about the birth of a baby through surrogacy,a is a facet of the right to privacy guaranteed under Article 21 of the Constitution. Thus, the right of privacy of every citizen or person to be free from unwarranted governmental intrusion into matters fundamentally affecting a decision to bear or beget a child through surrogacy cannot be taken away.

What is Surrogacy?

About:

  • Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s).
  • A surrogate, sometimes also called a gestational carrier, is a woman who conceives, carries and gives birth to a child for another person or couple (intended parent/s).

Altruistic surrogacy:

  • It involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.

Commercial surrogacy:

  • It includes surrogacy or related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

Surrogacy (Regulation) Act, 2021

Provisions:

  • Under the Surrogacy (Regulation) Act, 2021, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option.
  • It also bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs.
  • The law allows only altruistic surrogacy where no money exchanges hands and where a surrogate mother is genetically related to those seeking a child.

Challenges:

The exploitation of the Surrogate and the Child:

  • One could argue that the state must stop the exploitation of poor women under surrogacy and protect the child’s right to be born. However, the current Act fails to balance these two interests.

Denies Legitimate income to Surrogates:

  • Banning commercial surrogacy also denies a legitimate source of income of the surrogates, further limiting the number of women willingly to surrogate.
  • Overall, this step indirectly denies children to the couples choosing to embrace parenthood.

Emotional Complications:

  • In altruistic surrogacy, a friend or relative as a surrogate mother may lead to emotional complications not only for the intending parents but also for the surrogate child as there is great deal of risking the relationship in the course of surrogacy period and post birth.
  • Altruistic surrogacy also limits the option of the intending couple in choosing a surrogate mother as very limited relatives will be ready to undergo the process.

Mini Movie Review|It touched the hearts but not the brains

A character played by Kirti Sanon personifies surrogacy through Mimi who was aspired to chase her dreams but couldn’t fulfill it.

Nothing like you are expecting!!

Cast: Kirti Sanon, Pakaj Tripathi, Sai Tamhankar, Supriya Pathak, Manoj Pahwa

Director: Laxman Utekar

In a patriarchal society like India, women have always been under the umbrella of the community. It’s barely seen in the families who support a girl’s dream and accept her to be a dancer.

The movie begins with the introduction of a foreign couple who came to India in the search of a surrogate. After long hours of work, they were finally able to find a girl with the help of the driver (a role played by Pankaj Tripathi) in a hotel. Mimi(the girl) was a dancer and getting influenced by its flexibility they decided to offer her 20 lakhs to be the surrogate. Being an ambitious 25-year old woman agrees to take the risk for the same of becoming a famous Bollywood actress. She decides to live at her friend’s house by convincing the parents saying, she is going to a film shoot. With the required procedure, Mimi becomes the surrogate, and for the first four months, she was having a good time with the pregnancy. However, after eight months tests revealed that the baby is suffering from some mental disorder. This news outraged the couple and they decided not to accept the baby after birth and told Mimi to abort. This became the turning point in her life. She sacrificed all her dreams by deciding to give birth to the child and raise him. Later, the couple returned to her after 2 years when they came to know that the baby was born healthy. Mimi refused to give the child back and in the end, they decided to adopt a girl.

Message

  • A girl is also born with a dream and her character is not decided with what she pursues but what she is.
  • The support of family is crucial in the darkest times. Mimi faced all the criticisms from society but her parents never let her alone and accepted her as she was.
  • Killing is not an option. It’s not the fault of a child to be born unhealthy.
  • One loyal friend is more important than a group of unloyal ones. The driver and the friend were with Mimi till the end, helping her go through all the difficulties with a smile.

Every coin has two sides. Even though the movie won the hearts of the audience, it faced several criticisms like not following the laws related to a sensitive topic of surrogacy, using the term casually, and disrespect towards the decision of abortions.

It played with the emotions well, yet failed to manipulate the thoughts.

Should commercial surrogacy be banned in India?

Commercial surrogacy is the process by which an individual or couple pays a fee to a woman in exchange for her carrying and delivering a baby. At birth the child, homo-sexual couples, and single people who wish to be parents are the most common types of people who seek surrogate mothers.

Commercial surrogacy has been legal in India from 2002 onwards but due to unethical practices, a bill has been approved by the Union Cabinet in August 2016. This one lapsed when Parliament adjourned without taking the measure for a vote.

The new proposal came in 2019 that is to ban commercial surrogacy. The Indian minister of health has called the 2019 bill a “need of the hour” citing a rough estimate that between 2000 to 3000 unregulated clinics currently operate in the country. Under the new law anyone who performs or promotes this would be punished with up to 10 year of imprisonment and a fine up to one million rupees. The surrogacy bill’s provision restricting surrogacy to married heterosexual couples within strict age ranges also discriminates against members of L G B T community, older couples and unmarried people who might seek to have a child. The bill goes against the principles of equality provided under Article 14 of the Indian constitution.

Regulation, not ban, is needed. The commercial surrogacy in India needs a regulation and stricter rules that could ensure good care and pay to the woman alone and not agents or others. Good clinical facilities for the surrogate mother and a healthy environment where she could stay safely before and after delivery could lessen exploitation. There is no provision in the law about the custody of the child if the couple later refuse to accept it if the child is mentally challenged or born with a defect. People who hire surrogates have a need to do so due to medical reasons. It is not their choice. Regulation on this practice is very much needed and must be done to close loopholes due to which exploitation of surrogate mothers is taking place.

Indian society is yet to progress so much as to accept surrogate motherhood. The woman who rents her womb even if for the cause of humanity towards an unfortunate couple will never be accepted in society when she goes back to her normal life. People will look down on her and she may probably not be able to find a husband, if she was unmarried at the time of surrogacy. We need to be broad-minded and accept these women and respect their choice of renting their wombs.

Giving women a safe and free environment for surrogacy can help in curbing the evils attached and the industry could do well along with giving good money to such poor women so that they can make their lives better as well as give prosperity to their families.

Thank you for reading. Have a nice day!

Surrogacy

What is Surrogacy

Surrogacy refers to a contract in which a woman carries a pregnancy “for” another couple. Number of infertile couples from all over the World approach India where commercial surrogacy is legal. Although this arrangement appears to be beneficial for all parties concerned, there are certain delicate issues which need to be addressed through carefully framed laws in order to protect the rights of the surrogate mother and the intended parents.

The ever-rising prevalence of infertility world over has led to advancement of assisted reproductive techniques (ART). Herein, surrogacy comes as an alternative when the infertile woman or couple is not able to reproduce. Surrogacy is an arrangement where a surrogate mother bears and delivers a child for another couple or person. In gestational surrogacy, an embryo, which is fertilized by in vitro fertilization, is implanted into the uterus of the surrogate mother who carries and delivers the baby. In traditional surrogacy, the surrogate mother is impregnated with the sperms of the intended father artificially, thus making her both genetic and gestational mother. Surrogacy may be commercial or altruistic, depending upon whether the surrogate receives financial reward for her pregnancy.

Commercial surrogacy is legal in India, Ukraine, and California while it is illegal in England, many states of United States, and in Australia, which recognize only altruistic surrogacy. In contrast, countries like Germany, Sweden, Norway, and Italy do not recognize any surrogacy agreements. India has become a favourite destination of fertility tourism. Each year, couples from abroad are attracted to India by so-called surrogacy agencies because cost of the whole procedure in India is as less as one third of what it is in United States and United Kingdom (10-20 lakhs).

Is Surrogacy Profitable for All

At a glance, surrogacy seems like an attractive alternative as a poor surrogate mother gets very much needed money, an infertile couple gets their long-desired biologically related baby and the country earns foreign currency, but the real picture reveals the bitter truth. Due to lack of proper legislation, both surrogate mothers and intended parents are somehow exploited and the profit is earned by middlemen and commercial agencies. There is no transparency in the whole system, and the chance of getting involved in legal problems is there due to unpredictable regulations governing surrogacy in India.

Although in 2005, ICMR issued guidelines for accreditation, supervision, and regulation of ART clinics in India, these guidelines are repeatedly violated. Frustration of cross border childless couples is easily understandable who not only have to cope up with language barrier, but sometimes have to fight a long legal battle to get their child. Even if everything goes well, they have to stay in India for 2-3 months for completion of formalities after the birth of baby. The cross border surrogacy leads to problems in citizenship, nationality, motherhood, parentage, and rights of a child. There are occasions where children are denied nationality of the country of intended parents and this results in either a long legal battle like in case of the German couple with twin surrogate children or the Israeli gay couple who had to undergo DNA testing to establish parentage or have a bleak future in orphanage for the child. There are incidences where the child given to couple after surrogacy is not genetically related to them and in turn, is disowned by the intended parent and has to spend his life in an orphanage.

If we look upon the problem of surrogate mothers, things are even worse and unethical. The poor, illiterate women of rural background are often persuaded in such deals by their spouse or middlemen for earning easy money. These women have no right on decision regarding their own body and life. In India, there is no provision of psychological screening or legal counseling, which is mandatory in USA. After recruitment by commercial agencies, these women are shifted into hostels for the whole duration of pregnancy on the pretext of taking antenatal care. The real motive is to guard them and to avoid any social stigma of being outcast by their community. These women spend the whole tenure of pregnancy worrying about their household and children. They are allowed to go out only for antenatal visits and are allowed to meet their family only on Sundays. The worst part is that in case of unfavorable outcome of pregnancy, they are unlikely to be paid, and there is no provision of insurance or post-pregnancy medical and psychiatric support for them. Rich career women who do not want to take the trouble of carrying their own pregnancy are resorting to hiring surrogate mothers. There are a number of moral and ethical issues regarding surrogacy, which has become more of a commercial racket, and there is an urgent need for framing and implementation of laws for the parents and the surrogate mother.

Two Types of Surrogacy

A traditional surrogate is a woman who donates her own egg and then carries the pregnancy. The surrogate’s egg is fertilized through artificial insemination with the sperm of the father or a sperm donor. Traditional surrogates are genetically related to the baby because their own eggs are donated.

A gestational surrogate is not biologically related to the child she carries. Gestational carriers become pregnant through the process of in-vitro fertilization, where an embryo created from the gametes (sex cells) of the intended parents are implanted in the uterus for the gestational period of 40 weeks.

Altruistic Surrogacy

In the approach of altruistic surrogacy (where no payment for a baby is made; only those to cover pregnancy costs), it is evident that willing surrogates would be acting in the Post-Conventional Level, at Stage Six. An altruistic surrogate performs the miraculous task of carrying a baby, then delivering and handing it over to the intended parents. To accomplish such a difficult venture requires compassion, a sense of self-worth and self-sacrifice. This is evident in the case of parents Luke and Amanda, whose surrogate mother Lisa displayed an awe-inspiring act of kindness through carrying their baby. This act illustrates Lisa’s characteristics of Stage 6 – despite the controversy the pregnancy may have caused, she was able to act upon her own morals to surrender a baby to deserving parents.

Conclusion

It seems ironical that people are engaging in the practice of surrogacy when nearly 12 million Indian children are orphans. Adoption of a child in India is a complicated and a lengthy procedure for those childless couples who want to give a home to these children. Even 60 years of Independence have not given a comprehensive adoption law applicable to all its citizens, irrespective of the religion or the country they live in as Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) or Overseas Citizens of India (OCIs). As a result, they resort to the options of IVF or surrogacy. The Guardian and Wards Act, 1890 permits Guardianship and not adoption. The Hindu Adoption and Maintenance Act, 1956 does not permit non-Hindus to adopt a Hindu child, and requirements of immigration after adoption have further hurdles.

There is a strong need to modify and make the adoption procedure simple for all. This will bring down the rates of surrogacy. Altruistic and not commercial surrogacy should be promoted. Laws should be framed and implemented to cover the grey areas and to protect the rights of women and children.