The legal and moral aspects of reproductive rights and surrogacy

What is Surrogacy?

Surrogacy refers to a contract in which a woman carries a pregnancy “for” another couple. The entire concept of surrogacy arose when the uteri of other women were used for couples. The women who get pregnant for other women and carry their baby in their uteri, and deliver the baby are called the “surrogate mothers,” the process of which is known as the “surrogate maternity.” At first glance, the arrangement appears as being beneficial to all the parties concerned, however, there are certain delicate issues that required to be addressed in the context of the laws in place to protect surrogate mother and the intended parents. Surrogacy may be of two types, either commercial or altruistic, depedent on whether the surrogate receives a financial reward for her pregnancy.

Position in India

India previously allowed commercial surrogacy unlike majority of the countries, making it a destination for fertility tourism. Couples from abroad were attracted by the so-called surrogacy agencies due to the low cost involved in comparison to other countries such as the United Kingdom. However, where there exists an opportunity to make money, and lack of proper legislation, misuse is warranted for. The surrogate mothers as well as the intended parents were exploited by the middlemen. Previously, there existed no transparency and the chance of getting into legal problems is persistent.

However, following the years of advocacy by the Center for Reproductive Rights and partners, two new laws regulating assisted reproduction and surrogacy in India took effect in January.  The Surrogacy (Regulation) Act and the Assisted Reproductive Technology Act (“ART Act”) include myriad provisions establishing criteria for legal surrogacy and assisted reproduction technology (ART), as well as enumerating a comprehensive set of rights protecting children born through ART. These laws were passed in 2021 and incorporate numerous recommendations that were aimed at resolving the persistent issues.

Advantages and Implications of the New Law

The key highlight is the ban on commercial surrogacy and allows it only in case of altruism. It also regulates the assisted reproduction clinics and banks. It further enumerates the rights of children born through ART, including protection from abandonment and a recognition of their inheritance rights.

There still exists certain concerns, however, such as the laws are framed in a heteronormative and exclusionary way. ART is made available only for infertile heterosexual married couples or single women who are either widowed or divorced, omitting the LGBTQI+ community and unmarried partners. This goes against international standards and the latest Supreme Court of India decisions, including Navtej Singh Johar v. UOI. Another concern is that the restrictive criteria might even push surrogacy underground and risk the lives of numerous women. ART also imposes heavy regulation as well as high fees which shall create barriers for those living on lower incomes, consequently making it harder for to clinics to operate as well.

While paying heed to the various laws in place to protect surrogate women, there are numerous other concerns not involving the law.

1. Are female bodies being sold? The practice of surrogacy revolves around the concept of “objectifying” women as carriers of babies, merely because they can. The practice may be seen as a process of selling of the uteri and forgiving control of their own body. Furthermore, the poor women of the third world are used as a tool to meet the reproduction needs of the women who are infertile, or postpone their reproductive plants for their career. In an interview carried out by Baslington with 19 surrogate mothers, the most effective motive for acting as a surrogate mother was to earn money for 11 women[1].
2. Will women begin to be considered as breeding boxes? The moment people start to view an opportunity in any scenario, by disregarding the moral aspects, they turn towards commodification of the same. Surrogate maternity, either altruistic or not, causes the woman to be seen as a “reproductive tool.”[2] Although the act of surrogacy may be done for purely honorable reasons, the assumptions of people and labels are thrown at women with little to no hesitation.
3. Can Surrogacy be equated to sale of children? There are numerous views and perspectives that suggest that the act of surrogacy makes the children a product that may be purchased and sold. Furthermore, the child is treated as a tool to satisfy the needs of the other people. The same circles defend that the legalization of surrogate maternity would encourage the industry of baby brokerage.
4. Are there any alternatives to surrogacy? If it is indeed true that commodification, commercialization and in some cases, even altruistic surrogacy does not prove to be beneficial, must it still be in practice so regularly? Generally, the persons that opt for surrogate maternity are those who are unable to procreate by themselves. In such circumstances, it may be justifiable that the choice of surrogacy was made by them. However, does this not essentially mean that the surrogate mother is once again considered as nothing but a breeding box? In a situation that warrants surrogacy, one often overlooked mode is that of adoption. It proves beneficial for the child adopted as well as the persons adopting, without harm.

Conclusion

The legalization of surrogacy is a welcome move, as that which is legalized can also be regulated. Through this, the mechanism of oversight may be strengthened. However, this is not to take away from the ethical concerns still concerning the concept of surrogacy, which is very evidently, present. On the outset it may appear as being extremely forward moving and a very essential move. With no intention of taking away from the much-needed legislation, it is hard to believe that the notion of surrogacy may indeed be completely honorable. In the era of upliftment of rights of all genders and of diverse individuals, using surrogate mothers in the presence of other measures seems rather oblivious.

[1] Baslington, H., J Health Psychol, 7(1), 2002, 57-71.

[2] Donovan, P., Family Planning Perspectives, 18(2) (1996) 57–60.