Pub. Info- Pitfalls of Altruistic Surrogacy in India & Around the World – Disturbing Trends” ISSRF Newsletter , Advances in Assisted Reproductive Technologies with Emphasis on Medical, Technical, Ethical, Legal and Social Issues Indian Society for the Study of Reproduction and Fertility , Issue 20, January 2017, ISSN No. 2395-2806.
In view of the proposed Surrogacy (Regulations) Bill 2016 introduced in the parliament following cabinet approval seeking to legalize altruistic surrogacy in India, it is pertinent to assess the working, effectiveness of same in India along with its relevance around the world . This altruistic surrogacy allows only close family relative of couple to surrogate mother with restriction on monetary payment among other rigors, conditions. While altruistic surrogacy is upheld an promoted by the law makers but altruistic surrogacy sporadic occurrences in India. The leading infertility clinics in India have reported in media study that close relatively very rarely do lend womb, barely a handful number of family relative surrogacy have actually taken place over a decade. (TNN, Aug 28, 2016.) In this background, it’s appropriate to critically asses the conduct and consequent implications of the same.
1.Expenses cover for surrogate pregnancy Inadequate & Unjust to surrogate mother –
Altruistic surrogacy is defined in the Bill allowing “medical expenses, insurance coverage” only to be given to the surrogate mother or her dependents, representatives”. This is primarily inadequate as it fails to cover “all the reasonable expenses related to or arising out of surrogate pregnancy” and other incidental or ancillary expenses in connection with the same” A host of related expenses are excluded as lost wages for duration of pregnancy and child care support or crèche support for surrogate mother’s own child there by imposing the burden on the surrogate for the same. It is highly apt to question if this nature of altruistic surrogacy safeguards the interest of surrogate mother or imposes additional financial burden on them!
Where as in established altruistic legal jurisdiction of the world namely UK under Human Fertilisation and Embryology (HFE) Act 2008, Canada Assisted Human reproduction Act 2004 all such expenses and additional related expenses as reasonable surrogate pregnancy expenses are permitted without any rigid payment control are permitted.
2.Breach of distributive justice, unequal treatment of Surrogate mother –
Surrogate is not treated as per her just desert rather the surrogate mother who is the least socio economically well placed as compared to other stakeholders in the arrangement yet she bears the greatest risk including health risk, maternal mortality or death for bearing the child for couples, yet the surrogate mother is solely forced to practice altruism while all the other affluent stakeholders gain form the surrogacy arrangement, as the intending couple get paid child care or maternity leave, and also receives the child, the clinic or doctor receives the fees, thus affluent having both the capacity and liability to pay are exempted from liability to provide for all expenses related to surrogate pregnancy , at the cost of imposing greater onus or cost burden on the surrogate mother. Hence this arrangement appears unjust, unfair and breach of distributive justice , as it does not cause just distribution of benefits or burden as per risk sharing and also breach of equal protection, treatment of surrogate mother in the arrangement.
3.Altruistic surrogacy not all free from exploitation of surrogate – Another salient trait of the proposed altruistic surrogacy under the Bill is close female relative of Intending couple alone are permitted to act as surrogate.
In Indian social familial cultural context heavily influenced by the authoritarian patriarchal rule where in women are reduced to subordinate status, mostly dependant on their men folk , women continue to be being victims of domestic violence, Surrogacy arrangements impose compelling emotional socio psychological coercion , patriarchal forces on the women to be surrogate mother for their family members without much regard to their free voluntary consent. This is testified in case of death of an Indian surrogate mother R.Lal (29) who was coerced by her in laws, husband to be surrogate for her sister-in-law’s to compensate for insufficiency of dowry brought by her despite her unwillingness, ailing health. She died of a massive heart attack while giving birth to a surrogate baby boy at a hospital in Ranchi, Jharkhand, on July 26, 2014. [Telegraph India, August 2, 2014] There may be many more of these cases which go unreported behind the close doors of family increasing their exploitation! Hence altruistic surrogacy too fails the interest, welfare of surrogate mother.
4.Disclosure of female infertility among close relatives greater threat to domestic violence, marriage annulment –
The Bill permits “only close relatives of couples to be surrogate”, this entails disclosure of infertility of couple including the women (wife) to bear child before her in laws, family which exposes her at greater risk of domestic violence, abuse, eviction from the home, annulment of marriage, etc. In the conservative socio cultural familial context of India childlessness is typically understood as female problems only thus such women are subject to name calling, stigma, exclusion, ithas been reconfirmed by research studies that National Family Health Survey that childlessness is one of the reason for marital disruption or domestic violence. Therefore this provision in effect increases disruption, discord of marital family ties against the women!
- Disclosure of infertility Mental cruelty, Breach of Right to privacy, personal liberty –
Under the provision of this bill providing for altruistic surrogacy, there is implicit compulsion on couples to disclose the most intimate private details about their procreative or reproductive health, issues, infertility among the family relatives, without the choice of the concerned individual, without their voluntariness or willingness for the same. This constitutes as the most blatant breach of individual’s privacy dignity, autonomy, deprivation of privacy of wedlock. It may be noted that the disclosure regarding fertility or infertility can’t be enforced on the couple, this is inherently and essentially an individual private aspect of life. There can not be any compelling force for the same. In X vs Y  the supreme court upheld the right to privacy, right to non-disclosure or confidentiality of a person regarding their private health conditions. Similarly in In kharak Singh Vs State of UP [1963 ] the supreme court upheld the privacy confidentiality of matters related to marriage, procreation shielded away from undue state interference under right to life , personal liberty guaranteed in article 21 of Indian constitution. Hence the provision negates these constitutional guarantee and judicial precedents.
- Onerous Burden & Legal impediments against Right to reproductive freedom of couples –
The proposed altruistic surrogacy with its pre conditions under the bill on many grounds stands in contravention against the reproductive rights of couples in its working and implications which are briefly enumerated.
a.Reducing the availability of surrogate mother –
This Bill permits only the close relative of the concerned couples to be surrogate mother. This causes acute dearth and unavailability of women to act as surrogate mother for the medically needy couples. This acts as the major impediment for the couples in commissioning surrogacy and restricts the reproductive rights of couples. Alternatively, This also causes selective and uncertain availability of surrogate mother for only a fortunate select few couples who may find such relatives hence this provision in its working may result in discriminatory , arbitrary right of couples to avail surrogacy, reproductive health services.
b.Shifting burden on couple to secure surrogate mother –
The bill imposes the burden on the couples to secure surrogate mother among their close relatives, by relieving the ART banks which assisted the couples in the same under the earlier Assisted Reproductive Technologies Bill. The couples who are already reeling under the stress of infertility or failure to conceive or carry a child, repeated failures in medical tests, treatments they are additionally burdened, this only increases hardships, helplessness of couples and causes greater psychological trauma, worsens the plight of couples. The denial of ART bank services restrains their reproductive choices.
- Unavailability or Unwillingness, Refusal of close relatives – Privation of reproductive right of couples-
In case of unavailability or refusal by women among their close relatives to act as surrogate mother for the concerned couples there is no recourse available, no assistance from ART banks. This may take away the most essential constituent of right to life, personal liberty including reproductive right of many couples for who surrogacy is the only option for have a biological child.
- Oversight of Exceptional, Unfit Medical Conditions of Close family relative to be surrogate mother- Denial of reproductive rights of couple – In certain exceptional cases, families having the medical history of congenital or genetic diseases, the surrogates, donors are particularly required to be outside of the family clan or ancestry in order to prevent passing on such diseases on to the child, for better health of child, hence the condition of close relative surrogate excludes the interest of such families or couples and denies them reproductive or procreative rights out rightly.
- State failure & Evasion of constitutional mandate to secure adequate access reproductive health facilities –
With the shifting of burden from Assisted Reproductive Technologies (ART) Banks on to the couples themselves for securing surrogate mother, This takes away the assistance, statutory recourse which was available to couples on the contrary this impose the liability on the couples for the same. Thereby state fails its constitutional mandate under Directive principles of state policy [DPSP Article 47] to improve health. Accordingly there is national health policy 2015 – 2016 which primarily emphasizes the duty of state to secure universal, adequate health care, accessibility, but in this context, the state fails to provide adequate reproductive health services to medically needy couples and for any such unavailability makes the individual liable for the same. Denial of adequate appropriate medical services defies right to reproductive health of couples.
- Inter Personal Family Issues, Custody & Property disputes surrounding surrogate child –
The surrogate mother being the close relative of the couples taking after the same line of ancestry, family lineage, there is only greater likelihood of developing emotional attachment between the surrogate mother, the child and refusal to surrender the custody of child to couples. In light of Hindu customary practice as Niyoga, which permits property to be inherited by widow if she bears a child for any closed relative sharing the same blood line, further this may give scope for familial disputes concerning inheritance, property issues, there gives rise to custody disputes over the child as well as property disputes within the family. For the same property reasons, the relatives may refuse to act as surrogate to have lesser number of inheritors for the family property to gain larger individual share for themselves.
- Adverse psychological impact on child-
When a close family relative acts as surrogate mother, the surrogate mother and the child share familial degree of relationship, part of the same extended family, kinship. This may give rise to doubts, emotional rift, on issues of identity birthing conditions for child. The child may be psychologically disturbed with the idea of two competing women as his / her mother existing within the family which may be uniquely distinct from the rest of the other children in the same family, the parent child relationships may be disrupted. The child needs adequate mental counselling, preparation to build an understanding for the same.
- Nil agreements on altruistic surrogacy & Uncertainty, Unpredictability- Altruistic surrogacy among family relatives are largely based on mutual reciprocal promises relying on degree of personal relationship, trust and good faith among the family relatives. There is no necessary writing down or no recording of the reciprocal promises made by surrogate mother or couples, there is no procedural compliances of notary, stamp, affidavits therefore in case of differences among the relatives or refusal by the surrogate to hand over child to couple post birth , there is no legal means to hold the party accountable to their promise. This confines surrogacy into a private familial arrangement with no legal judicial recourse.
Downside of Altruistic surrogacy around the world – Altruistic surrogacy around the world is mired in host of legal complications.
- No absolute altruistic surrogacy globally – There is no altruistic surrogacy in absolute true sense, even those legal jurisdictions that practice or permit altruistic surrogacy allow for a wide range of expenses covered as reasonable compensation related to surrogate pregnancy including to be paid to the surrogate mother in addition to social security measures, post delivery care.
- Steep Decline in number incidence of altruistic surrogacy internationally –
In the leading altruistic legal jurisdictions the annual record of altruistic surrogacy have undergone a sharp decline primarily due to unavailability of women to be surrogate mother in the absence incentive for risk bearing , minimal coverage of safeguards. The surrogacy regulatory authorities of Western Australia (WA) reported “only two altruistic surrogacy applications have been approved in the year 2013 – 2014 but there might have been 10 times or even two dozen times that went overseas” for commercial surrogacy. [May 15, 2015, Couriermail].
iii. Failure & Repeal of altruistic surrogacy globally –Altruistic surrogacy has not only failed to work globally and many legal jurisdictions are replacing the same with compensated surrogacy. New York, New jersey, Western Australia (WA) is seeking to revise its earlier altruistic surrogacy towards legalizing compensated surrogacy. [nytimes.com Feb 19, 2014] [ Time .com Jan 28, 2015] [ ABC Net 24 Nov 2016]
- Altruistic surrogacy causing underground black market or illicit cross border movement of surrogate, trafficking, abduction –
Altruistic surrogacy has given rise to underground black market of surrogacy with abduction, confinement, illicit cross border movement of poor women for being surrogate mothers, egg donors for commercial returns, vested interests by agents. There are reported cases of trafficking, inter country movement of surrogate mothers among the south Asian nations from Nepal, China despite the prohibition. The women are subject to worst health, socio economic exploitation away from the government purview with no recourse.
The proposed altruistic surrogacy legalization in India does not does not corroborate with socio cultural familial reality of India nor does it provide the requisite safeguards for the surrogate mother, couples, child nor does it check the exploitation of surrogate mother. On the contrary it takes away and abridges the cardinal reproductive rights of couples, subjects surrogate mother to greater violation of rights , vulnerabilities in the guise of altruism and therefore leaves many issues unaddressed. By changing the nature, form of surrogacy from commercial to altruistic only eschews evades the issue and is far removed from addressing the issues.
I.Altruistic Surrogacy: Not A Panacea For All Evils, October 15, 2016, http://www.thecitizen.in/index.php/ByLine/index/7/Gender/SONALI-KUSUM
II.Surrogacy Bill – Omissions and Oversight, ETHealthWorld , December 05, 2016, http://health.economictimes.indiatimes.com/news/policy/surrogacy-bill-omissions-and-oversight/55798307
III.Surrogacy Regulations Bill 2016 (Overview, Issues & Limitations), Flair Talk, Issue 8, ISSN No 23349 – 6649 Pg.
- The Surrogacy Bill 2016 needs complete overhaul to safeguard interests of stakeholders” September 4, 2016, India Medical Times, http://www.indiamedicaltimes.com/2016/09/04/opinion-the-surrogacy-bill-2016-needs-complete-overhaul-to-safeguard-interests-of-stakeholders/