Surrogate Motherhood in India

Millions of couples all around the world are battling infertility. Assisted Reproductive Techniques (ART) like Surrogacy seem to be the light at the end of the tunnel for such couples. Surrogacy involves employing the services of a surrogate mother to physically bear and give birth to a child at the end of term binding a contract. Although it seems to be a win-win situation for both parties, there are certain delicate legal and ethical issues that come into the picture.

Is Surrogacy Moral?

Throughout the pregnancy, the surrogate mother is physically and emotionally involved with the baby. Pregnancy comes with its own set of hormonal changes and the surrogate mother is bound to get attached to the baby during the process. Giving it up at the end of term and completely detaching herself once the child is born can be very taxing for the surrogate mother, affecting her mental well-being as well.

Ethical issues are also raised on treating a child as a commodity, a commercial object that can be bought off someone else. Surrogacy has the potential to violate human values and dignity as it places the reproductive capacity of a woman in the market place. The Convention on Human Rights and Biomedicine clearly states that “the human body and its parts shall not, as such, give rise to financial gain.” Since surrogacy essentially removes the idea of motherhood by treating women as “objects of reproductive exchange”, this “womb-for-rent” practice devalues the process of childbearing.

There is also a lack of regulation in this field that causes exploitation of surrogates in addition to denying basic human rights of citizenship and identity to the surrogate child. Oftentimes, the surrogate mother comes from a poor third world nation. In the absence of economic alternatives, they are sometimes pushed into international commercial surrogacy by their families for the sake of their livelihood.

Legal Aspects of Surrogacy

Most countries throughout the world do not consider the intended parents as the child’s legal parents. That title goes to the birth mother. India is an exception, with commercial surrogacy being legalised in 2002. This, in addition to the relatively low cost has made India a very sought-after destination for international surrogacy.

The Indian Government has regulated the laws governing surrogacy with the surrogacy contract between the parties involved and the ART guidelines of the clinic. Drafting, reviewing and signing the surrogacy contract at the very beginning is of paramount importance.

The Indian Council of Medical Research (ICMR) along with the Law Commission of India have laid out the following legal guidelines for surrogacy:

·         Prohibition of sex-selective surrogacy

·         Birth certificate of the child to have the names of the intended couple as legal parents

·         Requirement of one of the intended parents to be the donor to promote a healthy biological relationship

·         Surrogacy contract to take care of the surrogate’s life insurance cover

·         Right to privacy of the surrogate

International surrogacy also comes with several legal issues of its own. The surrogacy laws of both countries should be uniform. The citizenship to be granted to the child is also another major legal issue.

The focus of this article is to bring to light the various legal and moral grounds surrounding surrogacy. Although it comes with its own challenging ethical and legal issues, in most cases, it goes smoothly for each party involved as long as there is a solid agreement in place.