Should Surrogacy be Legalised ?
By Ashima Wadhi
This article talks about Surrogacy and contains a discussion as to its legalisation. The article is informative in nature in the sense that I have explained the meaning and aspects of surrogacy, its advantages and shortcomings and then I have given my opinion as to what according to me should be the legal status of surrogacy arrangements. In the end I have given the legal scenario that exists in some countries as far as the legalisation of surrogacy is concerned.
At all times I have kept it open for the readers to decide as to what according to them should be the answer to the question put forth.
My aim, by means of this article, has been to make people aware about the concept of surrogacy and to acquaint them with the happenings in this field. This I have done by first explaining the meaning of surrogacy, followed by its drawbacks – the injustices caused to the surrogate mother, commissioning parents and the surrogate child. Then I have stated the benefits of surrogacy – like it helps childless couples & same-sex couples have a baby that is genetically related to them. Finally I’ve given my opinion about the legalisation of surrogacy and have made certain recommendations.
I’ve tried to make the article reader-friendly and I hope the readers gain something out of it.
The theme of this article puts forth a question and asks for an opinion as to whether surrogacy should be made legal or not. For the purpose of forming an opinion it is essential to have knowledge on the concept of Surrogacy as well as its advantages and disadvantages.
Surrogacy is an arrangement in which a woman carries and delivers a child for another person or couple who cannot conceive on their own due to medical reasons. This couple is called the Commissioning/ Intended Parents. Surrogacy can be divided into two categories based on the genetic involvement of the surrogate mother. The first is Traditional Surrogacy wherein the ‘egg’ used for fertilisation is of the surrogate mother creating a genetic link between the child and the surrogate. The second is Gestational Surrogacy where both the ‘egg’ and ‘sperm’ used for fertilisation belong to the intended parents or some donors resulting in no genetic relation of the child with the surrogate. Their relationship is restricted to the gestation period which is the nine months term. A surrogate is impregnated by artificial insemination and not by copulation or sexual intercourse. Another classification of surrogacy is based on money involvement. There is Commercial surrogacy where the surrogate gets monetary compensation apart from all the medical charges and there is Altruistic Surrogacy which is an act of generosity by the surrogate.
10% – 15% of the married couples lack the capability of procreating. Surrogate motherhood is not a new solution to the old problem of not being able to reproduce. Though surrogacy, which has been called ‘wombs for rent’ or ‘public motherhood’ dates back to the biblical times, it has not been able to gain social acceptance even in today’s modern world. It continues to be a critical issue in most countries as it is said to be opposed to moral, ethical and cultural beliefs.
There are many arguments opposing the practice of surrogacy and its legalisation per se. It contradicts several cultural norms as it involves procreation outside marriage. Also the fact that surrogate motherhood demands a mother to give up her infant at any time remains immoral. The combination of desperate infertile couples, low income surrogates and surrogacy brokers with varying degrees of moral principles raises the probability that the entire commercial enterprise can be exploitative. Further, surrogacy causes injustices to the surrogate mother, the surrogate child and also the commissioning parents.
The surrogate mother faces many hardships like being exposed to health related risks that might result from artificial insemination, sexually transmitted infection from the intended father’s sperm, urinary tract infections, high blood pressure, organ damage and a variety of physical maladies like hot flashes, abdominal pain and blurred vision. A gestational surrogate is also at risk from the intensive pre-pregnancy hormone treatment aimed at matching her menstrual cycle with that of the intended mother. Surrogate motherhood also represents an objective failure on the part of the surrogate to meet the obligations of maternal love, conjugal fidelity and responsible motherhood. It is also looked upon as a failure of the surrogate to give due respect to her personal integrity and dignity. Surrogates also face emotional trauma and psychological burden as they have to relinquish their babies.
The surrogate child is not spared of the injustices of surrogacy. Not being present around the birth mother meaning the lack of experiencing a gestational link results in a failure to satisfy one of the child’s basic human needs. This also places the surrogate child at a greater psychological risk than his non-surrogate counterparts and such children also exhibit higher levels of adjustment difficulties. This also leads to a less warm and less mutually responsive interaction between the parents and the child. So the failure of experiencing a gestational link might morph into a panoply of insecure behaviour like anti-socialism, aggression, mental illness and poor handling of stress. Another important drawback of surrogacy is that it promotes the commodification of children who are traded as merchandise between infertile couples and surrogate mothers. This is an attack on human dignity.
Surrogacy is also comparable to prostitution as both constitute the use of body for a fee. Just as prostitutes sell the use of vagina, rectum and mouths, surrogates sell the use of other body parts such as wombs, ovaries and eggs. The issue of legalisation of surrogacy raises questions regarding the legality of prostitution. If prostitution is legalised the chances of women being forced into it against their wish will increase but the same is not true in the case of surrogacy. The chances of surrogacy being coercive are very few as most people entering into surrogacy arrangements would want to ensure that their surrogate remains at peace, both physically and mentally so that the child is not harmed in any way.
Even though there have been many arguments opposing the practice of surrogacy, it will be unfair to form an opinion without looking at the bright side or the positive aspects of this practice. Surrogacy definitely has many benefits, the most important one being that it fulfils dreams; it provides childless couples with a way to have children of their own. The primary motivation is to have a child that is biologically related to at least one member of the couple. It serves as the best available option for these people. Surrogacy is also a viable alternative when the woman is unable to carry the baby to term.
Surrogacy does not only benefit the commissioning parents but also the surrogate mother. Becoming a surrogate mother can be a life changing experience that brings joy and satisfaction. They are not just having babies for couples who want to be parents, they are building families. Surrogate mothers derive tremendous psychic benefits from the feeling that they are helping someone to meet a joyous life goal. For some, this very fact is satisfying in itself which is why they do not demand or wish to receive any monetary benefits out of the contract of surrogacy. They submit themselves to the program and begin to see themselves as altruistic or heroic figures who can rectify the imbalance in the couple’s life. It is also beneficial for those engaged in commercial surrogacy as they are able to earn a sum greater than what they would have earned working throughout the year. They get to be at home and take care of their own children and also work part-time or full-time during some portion of the pregnancy. Commercial surrogates are also driven by an inner desire to help which is very essential in continuing as a surrogate.
Another very important advantage of surrogacy is that it allows same-sex couples to have a baby that is genetically related to one of the partners. So it offers a way for single men and women to become parents with a biological connection to the infant. One would also say that if the motive is just to start a family, then why not go for adoption, which is socially accepted, instead of surrogacy. But surrogacy is a better option as compared to adoption because the surrogate child will be of your own flesh and blood meaning that the child will be biologically related to the intended parents giving them increased peace of mind as well as increased legal standing. Also, parents would not have to worry about the history or background of the child as in the case of adoption.
The level of involvement that the intended parents can have in the pregnancy and the birth of their child is an important benefit of surrogacy. The parents can establish a visitation schedule and attend prenatal appointments with their surrogate. This type of a relationship allows all parties involved to enjoy the journey towards parenthood together. It is also very fortunate that surrogacy is linked with high success rates throughout the world. There are also many specialised agencies that provide assistance to the intended parents.
Now that the pros and cons of surrogacy have been listed, one can put forth an opinion on whether surrogacy should be legalised or not. In my opinion, surrogacy can be legalised but it must be strictly regulated. The regulations must be such that the surrogate mothers as well as the commissioning parents are protected. There are many legal issues surrounding the concept of surrogacy like ‘Can the surrogate be forced to relinquish the baby at the end of the term if she desires otherwise?’, ‘Can parents be forced to accept the child if he is born with some abnormality?’, ‘What would happen if both the surrogate mother and the commissioning parents refuse to accept the child?’, Surrogate’s compensation related conflicts, etc. There must be a clear legal framework for the purposes of deriving benefits from this practice and eliminating the shortcomings.
Very firstly, the basic idea behind a surrogacy arrangement must be interpreted and then the legal issues must be resolved step by step. So the basic idea behind the concept of surrogacy is to help the childless couple by means of a surrogate mother. So efforts must be put in to ensure that the surrogate mother does not develop affection towards the child that she is carrying. This can be done by organising such programmes for surrogates and these sessions do take place in practice. Further, it must be made mandatory for the parents to accept the child as it is a gift given to them by god and it is something that they have been wanting since so long. Also, the terms of the contract must be very clear and the surrogate mother should be fully aware of each and every term of the contract and her rights.
Another very important regulation that must be put to place is that the option of surrogacy must be made available only to couples having fertility issues and to the same-sex couples in countries where the whole gay and lesbian practice is legal.
The concept of ‘Vanity Surrogacy’, which means arranging for a surrogate mother not because the intended mother is infertile but because she is too scared to lose her perfect figure and appearance, should be very strictly prohibited because we have seen how surrogate children face adjustment and psychological problems and it is not at all desirable that a huge chunk of the population be psychologically backward.
The legality of surrogacy in practice differs from country to country. In most countries the woman giving birth to the child is considered to be the child’s legal mother. In very few countries are intended parents recognised as the child’s legal parents. Countries like France are against any form of surrogacy, be it commercial or altruistic. Countries like Australia, Canada and Hungary permit altruistic surrogacy while commercial surrogacy remains illegal. In India commercial surrogacy is legal since 2002. I support the decision of the Indian government legalising surrogacy but at the same time I firmly maintain that it must be strictly regulated so that it is not exploitative and the benefits can be appropriately reaped.
I have included this list of important concepts at the end because there are certain technical terms in the essay which the readers might face difficulty in comprehending.
Reading this might facilitate better understanding of the ideas put forth in the essay.
- Artificial insemination - It is the deliberate introduction of semen into a female’s vagina for the purpose of achieving a pregnancy by means other that sexual intercourse/ copulation. It is the medical alternative to copulation.
- Traditional Surrogacy – It is a practice in which the surrogate is impregnated using the intended father’s sperm or some donor’s sperm by artificial insemination. So one gamete belongs to the surrogate mother and the other to the intended father/ donor. This makes the surrogate biologically related to the child.
- Gestational Surrogacy – This involves the transfer of previously created embryo into the womb of the surrogate mother so that the surrogate serves the purpose of gestation only. The embryo that is fertilised in the laboratory can be made up of the gametes of the intended parents making them totally biologically related to the child.
- Gestational link –The link or the bond that is created between a mother and her child post birth through physical interactions and motherly affection.
- Altruistic Surrogacy – If the surrogate does not receive any compensation beyond the reimbursement of medical and other reasonable expenses meaning that the performance of the contract is an act of generosity on the part of the surrogate, then it is called altruistic surrogacy.
- Vanity Surrogacy – It is a concept involving arrangement of surrogate mothers by women who are so obsessed with their looks that they feel carrying their child is not worth losing the perfect figure and appearance. It is highly immoral and unethical.
 2nd Year BSL,LLb, Student, Indian Law Society (ILS), Pune