Surrogacy in India – Problems and Laws
The government is to bring in legislation to regulate the rent-a-womb business (some sources say it’s 20-billion rupees (£250-million) a year business) which is thriving in India. And it begs legislation.
From as far away as America, Canada, the UK and Singapore they come…and there are many of our own too, and they all want to fulfill their dream of having their own baby. It costs them less (approximately five times less) and there are fewer legal hassles, if any at all. Surrogacy in India is unregulated although the Indian Council of Medical Research (ICMR) has set “national guidelines” to regulate surrogacy, these are simply guidelines. All that this means is that surrogate mothers need to sign a “contract” with the childless couple. There are no stipulations as to what will happen if this “contract’ is violated.
True there are genuine cases where both the biological parents and the surrogate mothers benefit (this too is questionable but more of that later) but the lack of a law is gaping opportunity for exploitation, and no, this isn’t just about foreigners. Amit of India Uncut had brought this story to readers’ attention, a story of how young girls from orphanages were being ‘hired out’ for surrogacy and they (the surrogates) themselves never got any money. And even if the mothers do get the money, poor women often have little choice.
The downside of surrogacy
Pregnancy affects a woman’s health and one cannot know all the long-term consequences of repeated pregnancies. Studies have shown that repeated pregnancies can even affect cardiovascular health. Pregnancy can also aggravate existing health conditions and a poor uneducated woman in India may not fully comprehend the risks, either short-term or long-term, if she is aware of her health problem that is.
A baby soaks up nutrition from it’s host’s body and though the ‘mother’ might have a better diet during the pregnancy because of the money and care provided by the biological parents, her health may not be that good enough to begin with. In India women are not as healthy as they are in the developed countries due to poorer nutrition levels since childhood.
Read this to get the list of the short term and long term effects of pregnancy, any pregnancy. These are very long lists indeed! Short-term effects range from fatigue and vomiting to the swelling of joints and the long term effects range from scarring, varicose veins to loose skin and as for complications of pregnancy, they there are many…many! Some of these complications are life-threatening, like breast cancer. Poor women who rent out their womb do not care or even think about these things. And even if middle class women go for it, the motive is money. And that makes them vulnerable to exploitation.
Western countries often focus on the pain of giving up a baby which the mother has carried for 9 months and there are many court battles fought on this issue…but in India this is not the issue. Why, there are instances of desperately poor women in India selling their own (biological) babies because they can’t feed the rest of their family! And this doesn’t just happen in India. Poverty has driven parents to sell their children in other countries too.
There are other negative aspects of surrogate motherhood. There are some who feel that if surrogate motherhood becomes a legal ‘business’ then soon educated working women will start hiring wombs to prevent a break in their career! To take an extreme scenario, baby ‘factories’ could spring up!! A scene from a horror movie, which fortunately will not see the light of day as most countries have realised the downside of surrogacy.
Laws in other countries
In Canada, surrogate mothers are not allowed to accept payment but unfortunately this has driven the practice underground.
In Japan, it is the woman who delivers the baby, and not the woman who provides the eggs, who is considered the baby’s mother in a surrogate birth.
In Australia not all states have laws on surrogacy but the ones that do are Queensland, where surrogacy is illegal, Tasmania where it is an offence to make or receive payment for surrogacy and contracts are not legally binding, and in South Australia and Victoria where surrogacy contracts are illegal.
In South Africa, paying surrogate mothers is illegal.
Indian women are vulnerable
A poor country like India badly needs a law on surrogacy and it badly needs to make payments to surrogate mothers illegal. The poorer the country, the more fear of exploitation. If in the long term the mother pays a heavier price, all short-term benefits have no meaning. I have read stories of husbands encouraging their wives to go in for surrogacy…which I feel is disgusting. The combination of poverty, illiteracy and the lack of power that women have over their own lives in India are a deadly combination…
And hey, there is always adoption for those who want a child…
Update: October 08: There has been a major change in Indian surrogacy laws which you can read about here in Indian Express. India is now the only country in the world to legalise commercial surrogacy, if this article is right about other countries of the world. Unlike in other countries, including the UK, USA and France, in India the surrogacy agreements between the two parties will be legally enforceable. The new law will protect all parties — the genetic parents, surrogate mother and the child.
The new Assisted Reproductive Technology (Regulation) Bill & Rules, 2008, states that the surrogate mother can receive monetary compensation for carrying the child in addition to health-care and treatment expenses during pregnancy. But the surrogate mother has to relinquish all parental rights over the child once the amount is transferred and birth certificates will be in the name of genetic parents. The age-limit for a surrogate mother is between 21- 45 years. Single parents can also have children using a surrogate mother.
Other countries of the world:
- In a country like the UK, no contract or agreement is legally binding. All expenses must be justified to the courts, which can intervene and ask for proof if the expenses incurred by the genetic parents are too high.
- In the USA, compensated surrogacy arrangements are illegal in many states. Also, four states in the US have held that such contracts, while not illegal, are unenforceable.
In all states in Australia, the surrogate mother is deemed by the law to be the legal mother of the child as well, and any surrogacy agreement giving custody to others is void.
- In countries like Canada and New Zealand, commercial surrogacy is illegal, but ‘altruistic’ surrogacy is allowed ie. without any payment.
- In France, any kind of surrogacy, commercial or otherwise, is illegal.
(The first photograph is from the Telegraph India and the second photographs is from marieclaire.com and the and the third is by me.)