Pub. Info. – Prajawani, Kannada News Paper Bangalore, 31st March 2016 , Pg. No. 6 , available at http://www.prajavaniepaper.com/svww_index1.php http://www.prajavaniepaper.com/pdf/2016/03/31/20160331a_006100.pdf
As surrogacy is gaining popularity in society, it is also ushering changes and transformation in family structure or composition, the familial relations as parentage and other social institutions, ethics, religious tenets of society.
Surrogacy is essentially a form of ART Treatment involving In vitro fertilization technique ( IVF) for propagation of child for the infertile couples facilitating family formation , attainment of parenthood, this is recognised world over as an emerging alternative means to family formation.
First and foremost surrogacy has provided for the first time ever an exclusive option to single unmarried individuals, homosexuals as well as live in partners, civil unions relations to have biologically related children, which is absent otherwise thus leads to creation of new kind of families with two fathers or two mothers or one mother or one father family with children as opposed to the traditional heterosexual families comprising of mother father child or children. This is a breakthrough as for these groups of individuals this is the sole means to realization of reproductive right and right to family formation. Though in India as per the recent Home Ministry Guidelines of the year 2012, surrogacy is only allowed for heterosexual married couples as homosexuality is only decriminalized but not held legal in India at present.
Surrogacy by its very inherent nature involves use of third party including the gamete donors, surrogate mothers or gestational carriers in the wedlock thus causing fragmentation of motherhood based on their respective functioning into three competing woman namely the genetic mother who is the egg donor, the surrogate mother who gestates for nine month, gives birth to the child and thirdly the commissioning or intending mother who receives the child from surrogate mother and raises the child. Thus all these women may contest the claim of motherhood for custody, parentage over the child.
It distorts the concept of biological parentage and mother father child relationships as the child is not conceived out of the conjugal union of husband and wife within the wedlock, the child may only be related to either of the couple and the child may be born of an anonymous egg donor, this may create psychological impact on the child with regard to child’s identity. Under surrogacy parenthood becomes a subject matter of commercial legal contract and medical process with involvement of third party and no longer confined to the exclusive sacred union of wedlock within the family. . All these developments may pose as challenge to the stability and cohesiveness of family as a primary fundamental social institution.
It entirely changes or transform the established sociolegal concept of motherhood which vests motherhood for all purposes in the woman giving birth as single , indivisible mother irrespective of genetic or any biological connection , accordingly it changes the universal age old legal maxim that motherhood is a fact and fatherhood is a presumption as implied from the section 112 of Indian Evidence Act, surrogacy has rendered even motherhood a subject of legal presumption no longer an irrefutable fact.
Surrogacy does not stand firm on the moral, ethical grounds as well as it involves use of commercial use of reproductive capacity of women for third person as per the contractual terms and condition which goes against the human right to dignity, integrity of a person. In this process both the surrogate mother, surrogate child are commoditized as they are made subject matter of contract and objects of commercial exchange. For these reasons surrogacy is often linked with prostitution subject to social stigma.
For these contesting issues surrogacy has not received religious approval, many religious heads have even issued fatwa against the same by calling it a form of an adultery and some religious section of society have held it as an act against the will of god thus imposed ban on it.
Surrogacy has generating concern in society with the rise of “celeb or social surrogacy” where in the individual or couple resorts to surrogacy for reasons other than biological which may career or otherwise. Many film celebrities in the Hindi and in the south film industries have resorted to surrogacy in the course of their second marriage or to have their second or third child which has great influence on society by representing the notion that having child through surrogacy is a matter of personal choice, it may be stated that the ICMR 2005 Guidelines and the ART Bill 2010 both permit surrogacy only upon the grounds of infertility established through prescribed medical test.
Another issue that is deeply connected with surrogacy is that it has made motherhood or pregnancy another source of commercial avenue ( particularly for poor women) popularly termed as womb renting business wherein women’s bodies are offered in market , subject to commercial hiring under a contract just like any other wage contract. In the given socio economic context of India, this generate disturbing sociolegal, ethical trends. Surrogacy further perpetuates the inequality rich and poor or the economic class divide in society] as in the process the poor women are reduced to bearing child for rich women who are in financial position to avail the services of former but not vice versa. Surrogacy is turning urban cities with the flourishing of infertility clinics into centres of reproductive tourism or sources of outsourced pregnancy or reproductive labour. It has been reported that there is an increase in the number and incidence of young under age women as nearing twenties resorting to being egg donor, surrogate mothers for want of money in cities. It may be noted that this is a violation of the ICMR Guidelines which stipulate the minimum age as twenty one years to be either surrogate mother or egg donor in India.
Another prime concern is that the booming growth of Surrogacy casts adverse impact on adoption which promote social welfare by providing parents and home for the already existing children who are languishing in the orphanage,
Considering the prevailing legal void during the pendency of enactment of law on surrogacy there is ample scope for misuse of this technology to have sex selection to have a child of desired sex, possibilities for abduction and trafficking of women for reasons related to non sexual trafficking be forced surrogate mothers, egg donors from rural areas to urban areas in the guise of or on the pretext of promising jobs by middle men for financial gains. In a country which is marred with or tainted with one of the world’s highest maternal mortality rates, low social economic standing of women, these practice may raise unsettling questions.
While surrogacy is held as legal by the supreme court of India however it never the less raises complex socio legal issues. At the outset it may be stated that the need of hour is not only the early enactment of law but also necessary reconsideration on the social implications of the use of technology for making the practice of surrogacy socially ethically desirable and legally regulated.