This article is written by Udisha Tyagi and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Table of Contents
Introduction
According to Indian culture, a woman’s life is incomplete without a child. And infertility has been a grave problem since time immemorial. Infertility is of two types: biological and social. In biological infertility, a woman is biologically incompetent to reproduce i.e., there is some problem in her reproductive parts. On the other hand, social infertility is one in which certain classes are barred by society from reproducing. Surrogacy is a technique formulated to help such infertile couples.
Surrogacy is a process in which a surrogate mother bears a child for other parents and gives off the child after its birth. Surrogacy is of two types traditional and gestational. In traditional surrogacy surrogate mother is the biological mother of the child as she donates her egg. On the other hand, gestational surrogacy is one in which the surrogate mother is not the biological mother of the child.
Gestational surrogacy is preferred over traditional surrogacy as in traditional surrogacy there is a genetic relation between the child and the surrogate, due to this relation it’s hard for a surrogate to part with this child, this takes a toll on the surrogate’s emotional and mental health and may even lead to legal complexities by declining to give away the child. On the other hand in gestational surrogacy, there is no genetic relationship between the surrogate and the child. Today most of the clinics provide only gestational surrogacy. Although traditional surrogacy is cheaper as it saves us from expensive IVF processes, it has some major setbacks.
In past decades we have seen rapid advancements in the field of surrogacy but this concept is not new to us as the concept of surrogacy is mentioned in our epics and puranas. With the evolution of medical science we can see tremendous hike in surrogacy cases in India, the fact worth noting is the concept of surrogacy is not new to India. It has been a part of Indian civilization since the dawn of time.
What is commercial surrogacy?
The trend of commercial surrogacy marked its start in 1997, when a woman carried a baby through the process of gestational surrogacy and used her remuneration for the medical treatment of her husband. Since then there has been a boom in commercial surrogacies in the last decade, according to current stats about 2,000 children are born via surrogacy every year. There are many factors contributing to this boom. Some of the major factors are world class medical services which are provided at low cost in India, easy availability of healthy surrogates and legal environment for surrogacy.
There is no price tag which can be given to parenthood but IVF is an economically straining process all over the world. India is a much sought after country for surrogacy services as it provides cheap and best medical services required for IVF. Due to these services it has become easier for couples to become parents. Apart from being cost effective there is easy availability of healthy surrogates in India. There are clinics set up by the government which can arrange a meeting with a surrogate. In India the process of IVF is less complicated as it’s legal in India. There are registered IVF clinics to assist parents and make this process easier.
These factors have attracted international clients to the Indian surrogacy market leading to a boom in ‘medical tourism’. Since 2003, the Indian government has adopted various measures to make our country a ‘global health destination’, including infrastructural advancements, special incentives for hospitals that treat foreign patients and the introduction of a medical visa scheme. Apart from this, Indian surrogates charge way less than foreign surrogates as they belong to economically crippled strata of society. According to a report, an Indian surrogate charges around US$2,500 to UD$7,000 whereas foreign surrogates charge around US$ 14,000 to US$ 30,000.
Legalization of commercial surrogacy in light of Baby Manji case and Jan Balaz case
Commercial surrogacy was legalized in India by Indian government in 2002, after which India became the ‘rent-on-womb’ capital of the world. This attracted many couples from foreign and has led to an increase in ‘medical tourism’ in India.
The Baby Manji case of 2008 portrayed the difficulties that can arise over parental status and citizenship in international surrogacy cases. Baby Manji’s genetic father Yamada was caught in harrowing limbo when neither the Indian nor the Japanese government regarded it as their responsibility to issue his baby daughter with required travel documents to leave India and enter Japan. The Japanese government refused to issue a passport because Japanese law doesn’t recognize surrogacy and regards surrogate mothers as the child’s legal mother. Japanese advised that if he wanted to bring Manji home then he had to get an Indian passport.
According to 2005 guidelines, cases in which couples were not able to establish genetic relationship with the child may adopt the child. The adoption would enable the couple to apply for an Indian exit visa, as well as possibly for entry into the country of residence or origin where surrogacy is not allowed. Indian adoption laws are religion specific and it’s quite difficult for non-Hindu parents to apply for adoption. Due to these rules Yamada was unable to adopt his biological daughter.
For Indian passport to be made, a birth certificate is required. The main problem regarding making a birth certificate was what will be the child’s mother’s name. Will it be the name of the surrogate or the egg donor or Yamada’s ex-wife? Hence the registrar refused to make the birth certificate. Yamada then hired a lawyer to challenge this decision of the registrar claiming the birth certificate to be made. After this only a provisional birth certificate was issued. By the time a birth certificate was made, Yamada’s Indian visa was due to expire.
Manji’s grandmother also filed a custody petition for Manji’s temporary custody. The Jaipur passport office set up special rules and provided a ‘certificate of identity’ to Manji. This was the first time when Indian authorities issued such a travel document, which was intended for stateless or for those who cannot acquire a passport from their country, to a child born through surrogacy. After this the Japanese embassy too issued Manji a one year visa on humanitarian grounds, Manji arrived in Japan with her grandmother, in November 2008, nearly 3 months after her birth and after indefinite efforts of her parents.
Apart from this, the case of Jan Balaz v. Union of India shows the current disconformity of national laws and the uncertainty and inconvenience it creates for the parties involved. The result is delay in getting required documents and the need to develop concrete solutions to overcome these hardships
The case is concerned with two German residents Jan Balaz and his wife Susanne Anna Lohle, who opted for a surrogacy arrangement in a fertility clinic in Anand district, Gujarat. For surrogacy, they used Balaz sperm and eggs from an anonymous donor. The twins which were born out of this surrogacy were caught between wars of citizenship and adoption laws of Germany and India, which left them stateless also, they were not able to leave India as per their parent’s will. They had to spend 2 years of their initial life in India which was not even their plan.
The uncertainties in this case began when the Anand municipal registrar listed the names of the commissioning parents on children’s birth certificates even though Mrs. Lohle was not genetically related to the children and the birth register maintained by the hospital recorded the surrogate as the mother of the twins. The German government did not accept the birth certificate as reflecting the legal parentage, as surrogacy is not legal in Germany.
The German government considered the surrogate as their mother and Balaz as the father of twins. The commissioning parents were unable to pass their German citizenship to their children. Likewise India was also unable to provide citizenship to the twins. The acquisition of citizenship by birth under the Indian Citizenship Act, 1955 requires either one or both of the parents of the child to be citizens of India at the time of birth. The twins did not have any Indian parents despite being born by a Indian surrogate, because they were commissioned by a foreign couple. India has no law which declares the woman who gives birth to a child to be his/her legal mother.
Despite all this the High Court of Gujarat directed that the birth certificate be corrected so as to record the name of the surrogate as the mother of the children. The Indian government regarded the twins as citizens of India. On this basis, Indian passports were issued for the twins. At the same time, the Indian government was indulged in behind-the-scenes negotiations with the German government to resolve this problem. After a few months of negotiation the German government was willing to adopt a solution via an inter country adoption process.
More than two years after the birth of the children, both governments found solutions to this problem of citizenship and implemented it. India issued certificates of identity to the twins and the German government on its part granted visas to the twins.
These cases exposed the perils of engaging in international surrogacy where the countries involved have strikingly different legal rules regarding surrogacy. These serve as a lesson for commissioning parents to take legal advice beforehand to abstain from getting wired in complex legalities of international surrogacy.
Mental, emotional, social and financial effect of surrogacy on surrogate
Being a surrogate is very much mentally, emotionally and psychologically demanding. It is very much important for a surrogate to have a constant support system, whether it being a spouse or family. When people think of gestational surrogacy, they take into consideration the physical commitment – the medical checkups, the process of IVF and, of course, the toll of pregnancy and birth pains.
But, as most gestational surrogates can testify, the psychological commitment is just as important. We can also say that it is actually even more important in order to ensure a favorable experience for everyone involved.
Surrogacy is a very intimate journey, and the surrogate mother’s feelings and intentions must be taken into account every step of the way.
Ongoing psychological support from the spouse and family can help her navigate some of the complicated emotions. She has already contracted that the commissioning parents are the genetic and legal parents of the child, but it’s common for a gestational carrier to develop a relation of love and attachment throughout the process – to the baby.
While carrying the baby in womb for nine months, emotional attachment is expected, a responsible agency should give the surrogate full informed consent, psychological and emotional support, independent legal counsel and fair remuneration to help guide her and make the process smoother for all once the baby is born.
Given below are some of the difficulties that a surrogate has to go through during her pregnancy:
Feelings towards pregnancy
Coercion to have no feeling to baby:
The surrogate mothers are being forced not to develop a feeling towards the baby and are brainwashed that they are not the real mother of the baby, this takes an emotional toll on the surrogate’s health. The surrogate carries the child for nine months in her womb, it is not possible for her not to cultivate feelings for this child.
Fear and worry about being baby abnormal/baby health:
Fear and concern about the baby’s abnormality was one of the emotionally straining experiences of uterus donors. Surrogates are often worried what will happen to their child if he/she is born with some abnormality. There are many cases where it can be seen that many parents have abandoned a child born out of surrogacy if they were born with any abnormality.
Relationship with family, relatives and the commissioning parents of fetus fear that it may affect her marital life
The fear of husband’s reactions in a marital relationship is a very emotionally straining experience in the uterus donor’s life. Sometimes husbands of surrogates do not approve of this process of carrying another man’s child but due to financial reasons the surrogate has to indulge in this process, this may affect the surrogate’s relationship with his husband.
The complications of pregnancy
If any complications occur in surrogacy, it might have a permanent negative impact on surrogate’s health. Like normal pregnancy, surrogate pregnancies come with medical setbacks of carrying a child and giving birth. These can include vomiting, weight gain, swelling, back pain. Some more serious side effects are conditions that can develop during the pregnancy like gestational diabetes, hypertension and pose a threat to your reproductive organs.
As with any pregnancy, there is also the risk of a miscarriage in surrogacy. To reduce these risks, it’s important to have good medical assistance, take the proper medication, get the right amount of rest and follow instructions precisely.
With gestational surrogacy, there comes some medical risks related to the process of IVF. Because you do have to take medicine for IVF with surrogacy, including injecting yourself with fertility medications at home, you can expect anything from slight needle bruising to temporary allergic reactions. As you take medicine to regulate your menstrual cycle and increase your chances of becoming pregnant, you may also go through headaches or mood swings.
There are few risks associated with the embryo transfer process. You may experience slight cramping or bleeding from the procedure. As always, it’s important to stay in touch with your doctor; in rare cases, you may develop an infection that can be treated with antibiotics.
The monetary problems of surrogacy
Most of the surrogate mothers are known to be from economically weaker and financially crippled sections of society. These surrogates are more susceptible to be exploited due to their financial needs. Indian surrogates are only paid one-fifth of what is paid to the foreign surrogates. According to a report Indian surrogates are paid about USD 7,000 for a child whereas foreign surrogates are paid about 30,000 USD.
As commercial surrogacy occurs in a variety of socially and economically different locations, social and financial pressures that may be faced by women can take different forms.
Ban of commercial surrogacy under ‘Surrogacy Regulation Bill, 2019’
According to the Surrogacy Regulation Bill, 2019 commercial surrogacy will be completely banned in India. Now the question is whether this ban will solve our problems or not.
Due to lack of regulating laws there will be more exploitation of surrogates as this will lead to black marketing of surrogates. Women should be allowed to indulge in commercial surrogacy and it should be their decision to participate in commercial surrogacy or not. The Constitution of India has given the right to life under Article 21 which also provides reproductive autonomy to women. Freedom to procreate is as much a tenet of liberalism as the concomitant freedom of contract. Only a woman should have a say in her reproductive decisions. From this we can infer that the need of the hour is regulation of surrogacy laws and not a total ban on commercial surrogacy.
Due to this ban, even more exploitation can be seen as the requirements of altruistic surrogacy are very specific and they prove to be very discriminatory for couples who do not have a ‘close relative’ to be a surrogate.
References
[1] Paula Gerber and Katie O’Byrne, Surrogacy, law and human rights (Routlege press, 2015). [2] Baby Manji Yamada v. Union of India (2008) 13 SCC 518. [3] AIR 2010 GUJ 21.LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
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