Commercial surrogacy as a means of Exploitation


by Yuvraj Trivedi     30 July 2020

The term infertility is considered ailment in the society which should be catered as soon as possible. This is due to the idea of a blood child which is deeply rooted in society and to make it happen various technological marvels are developed by humans to solve the problem of infertility. One such miracle is Surrogacy. Commercial gestational surrogacy refers to an arrangement when “the egg of the adoptive mother or an egg donor is fertilized with the sperm of the father-to-be or an anonymous sperm donor in a laboratory to produce an embryo. This embryo is then transferred into the uterus of the surrogate”, this arrangement rejects the popular taboo of sexual relations between the father-to-be and the surrogate and makes it an asexual mode of reproduction. It can also be seen as paid sex work because of potential intimacy with pregnancy. In India, commercial gestational surrogacy is seen as a thriving business due to the availability of economical and affordable treatments and surrogates.  It serves as a major source of income for the women who belong from the underprivileged section of the society and increases their standard of living. It might seem as if it brings about happiness in the lives of women longing motherhood. But in reality, it traps the women with an economic incentive. It endangers the women from the underprivileged section of the society as it puts unfair societal pressure and their illiteracy is used to deceive them.

Surrogates in India are vulnerable for many reasons, but the thing that most face is lack of financial support, which force them to become surrogates and rent their womb. Surrogacy is considered a sin as surrogates are considered prostitutes because of the common notion of sexual relations that is associated with giving birth for the sake of money. They are being termed as ‘fallen women’ and are accused of being bad mothers who sell their children. These social stigmas lead their life in utter darkness. Not only the surrogate’s character is looked down but her whole family character is questioned. Thus, making them a victim of a vicious cycle of vulnerability.  “These social labels mean that after surrogacy some families have to leave their homes” leading to non-permeance of their home and repeated displacements drag them towards more poverty.

Many of these surrogates belong from a family with no earning member and due to which they undertake surrogacy. The surrogates and their families suffer from mental violence due to the stigma attached to surrogacy. They are sometimes even forced by either husband or family to take up surrogacy to make a living. The surrogates do not have much idea about the surrogacy contracts and the amount they are receiving for the entire set up and everything is decided by the male counterpart. The surrogate’s value is reduced to that of an object which serves the purpose of earning money in exchange for renting their body. The surrogate’s decision is usually influenced by factors like distress due to financial conditions and their family coercing them to take part in the arrangement. The remuneration that the surrogates receive is an important pulling factor that induces women to enter into surrogacy contracts. These include medical expenses along with residence and food. The surrogates go through many medical procedures, mental and physical pain of carrying the baby for nine months. The surrogates stay away from their families and children and under constant medical surveillance thus the remuneration they generally get is not enough for the pain they suffer throughout the arrangement of surrogacy. Surrogates in India when entering into surrogacy contracts are either influenced by financial distress or their families thus, their decision of entering surrogacy contracts is not free from mental coercion. Necessity is the main reason for women to undertake surrogacy and not their own choice. They are trapped in the never-ending cycle of being ostracized by society and their desperate attempt to escape poverty.

The surrogacy contracts between the clinics, prospective parents, and the surrogates play a vital role in misleading the surrogates. The surrogates are easily manipulated by the doctors who take advantage of their illiteracy. The surrogacy contracts which consist of the rights of surrogates over the fetus and child are drafted in English to deceive them as they aren’t aware of their rights.  These contracts contain information on various medical procedures that one needs to undergo. As these are drafted in English and the surrogate being illiterate, they are not informed about the medical procedure. In the pre-pregnancy period, the uterus of the surrogate is prepared for embryo transfer which involves many invasive procedures and multiple risks to the surrogate which are often not discussed. They are deceived by not informing them about health risks associated and the multiple pills, tests, etc that they go through. The surrogate is prohibited to exercise any right over her body by agencies like prospective parents and surrogacy clinics. These procedures expose the surrogates to health risks which might be fatal for their lives.  Privilege is used as a weapon to exploit the underprivileged section. The belief of having special entitlement because they hold some kind of status in the society is influenced by the idea of negative privilege and due to that, the upper-class strata of the society from where the prospective parents belong, assume their entitlement over the body of surrogate as they are paying her to correct the apparent disease of infertility.

There are many cases in which if the child is born with a defect the prospective parents abandon the child with the surrogates which in turn puts financial and emotional pressure on them. The surrogacy contracts also contribute to the number of girl children being abandoned by the parents because these contracts provide an effortless way out to prospective parents if they do not want a girl child. Due to this, there is widespread condemnation of commercial surrogacy. The only victim of such scandals is at the end of the surrogates who unknowingly enter surrogacy contracts with the view that it will help their family and children but does the opposite. In 2014, an Australian couple rejected one of their biological twins just because of the child’s gender. Despite all this ill-treatment, commercial surrogacy was upheld in the Supreme Court judgment in the case of Baby Manji vs Union of India. Similar circumstances can be seen in the case Jan Balaz vs Anand Municipality, where the Gujarat High Court reiterated apex court judgment. The court said that commercial surrogacy is in India as there is no law prohibiting womb-lending.

Therefore, in the year 2009 in the 228th report, the Law Commission of India recommended regulation of surrogates through suitable legislation. The proposed that only altruistic surrogacy be legalised and to put a complete ban on commercial surrogacy. Keeping it in mind the Surrogacy (Regulation) Bill,2019 was passed by the parliament. The Surrogacy Bill is seen as ethical and moral legislation as it protects the rights of exploited surrogates. Due to this various surrogacy boards were established at various levels to regulate the practice and process of surrogacy. Therefore, now the people seeking the help of surrogacy have to be Indians, NRIs, or of Indian origin. Single women cannot opt for being a surrogate with exceptions of widows and divorced women, only if they are able to procure the certificate from the National Surrogacy Board.

Therefore, commercial gestation surrogacy endangers women’s life and her poverty is used as a tool to drag them into such a profession. The laws that govern surrogacy in India have failed to recognize the exploitation that the surrogates face during the arrangement. Surrogacy contracts are biased towards agents other than surrogates and misuse their vulnerability. The privilege of practicing the right to choose is not available to surrogates in India because they do not have the luxury to do so. Surrogates constantly fight against the stigma and confirm to use of morality to justify the work they are involved in. Surrogacy is a gift for the childless couples. The bill seeks to ensure that while the childless couple gets the child and no one including the surrogate mother and the child born suffers at the end.

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