NATIONAL CONFERENCE ON SURROGACY: ISSUES AND CHALLENGES

Surrogacy: A Viable Sector of Human Welfare and Altruism

THEME: MEDICO ETHICAL PERSPECTIVES SUB THEME: The Medical Jurisprudence behind surrogacy in the light of its Ethical Implications

Submitted by: 1. Shivangi Misra misra.shivangi91@gmail.com +917709972230 2nd Year Symbiosis Law School, Pune

2. Nikhil Mishra nikhil.mishra@mail.symlaw.ac .in +918390755376 2nd Year Symbiosis Law School, Pune

Surrogacy: A Viable Sector of Human Welfare and Altruism

Shivangi Misra

Nikhil Mishra

Abstract
The concept of surrogacy can be best reasoned by Ayn Rands philosophy of objectivism. My philosophy in essence, is the concept of man as a heroic being, with his own happiness as a moral purpose of his life with productive achievement as his noblest activity and reason as his only absolute Surrogacy and its reason lies within the need of the 15% couples who cannot reproduce and the women who can by the means of surrogacy can support themselves and also get a sense of accomplishment. In this paper the option of surrogacy is closely examined from its medico-ethical perspective and carefully brushing its legal and economic implications. We cannot take a stand and say its good or bad but anything unregulated and unchecked leads to the possibility of a failed idea. Surrogacy in simple terms, is hope for childless couples and hope for women from any social and economic background who wish to empower themselves by helping the same. Since when is that wrong? A situation where only thing to lose to, is a scope of exploitation and which industry is risk free in that? The Assisted Reproductive Technologies (Regulation) Bill, 2010 is a step towards the regulation of surrogacy in India. It aims to redefine the trend of fertility tourism in India and to ensure that the services provided by the fertility clinics are apt. The Bill is a safeguard against the breach of social, medical and legal rights of the surrogate mother. Presently the

aforementioned clinics offer a plethora of services such as Intra-Uterine Insemination (IUI), Artificial Insemination with Husbands semen (AIH), Artificial Insemination using Donor Semen (AID), involving the use of donated or collected gametes, infertility treatment involving the use and creation of embryos outside the human body and processing or storage of embryos etc. The services offered if used inappropriately can be a blotch on the face of such a reasonable and effective medical procedure. Various medical complications in surrogacy will be discussed in the paper and how the role of regulatory bodies such as the Indian Council of Medical Research (ICMR) and the introduction of the ART (Regulation) Bill, 2010 would cover the health and comfort as an important basic requirement for surrogacy contracts will be discussed at length in the paper. Therefore, law can be instrumental in making surrogacy contracts transparent and effective. The paper shall discuss citizenship issues along with the rights and duties of both the surrogate and the intended parents. Taking human body for what its meant for and without any adverse health and psychological impacts is a positive option hiding behind the ghost of coercion and misuse. Under medical approval and with the free consent of surrogates with no space for unethical exploitation of surrogates, this paper suggests a better and more liberal form of surrogacy laws in India. Thus breaking the shackles of prejudices and a closed opinionated society where any form of unnatural option is looked down upon with scepticism. In this ever changing degree of acceptance where we are open to ideas, we cannot ignore the economic

implications of, as people may call it trade, we accept it as a viable sector of human welfare and altruism.

1. Introduction
Surrogacy is fighting an ethical battle on numerous fronts. Religion opposes it. Most of the countries oppose it. The morality and conscience of the masses oppose it. Yet it persists because surrogacy can be opposed or accepted but cannot be ignored now. The surrogate agreement is made between a couple suffering from infertility wholly or partly and a surrogate mother. Contracts might vary, they always have provisions related to the rights and responsibilities of all parties, both pre and post birth of the child and during the pregnancy. The core of the agreement is the promise by the surrogate mother to give up custody of the child and the promise of the other party to accept the child. Thus, surrogacy continues to be a complicated web of legal, social, ethical and technological issues. Arguments against commercial surrogacy are based on the fact that it essentially means the commoditization of motherhood that is "womb for rent." Some also believe that commercial surrogacy exploits women, children and the meaning of motherhood and fatherhood in our society. This exploitation can only occur in a very uncontrolled and unregulated environment. If we take that factor out of the picture, surrogacy is a beautiful way to use what human body is capable of performing. Of all the applications of the new Assisted Reproductive Technologies ARTs (including artificial insemination (AID), in vitro fertilization (IVF), embryo transfer, and embryo freezing) surrogacy has far-reaching consequences. It raises a plethora of ethical and legal issues. It has been periodically debated in courts and has garnered consideration by Commissions and Inquiries all over the world. The distinction between surrogacy and other technologies lies in the circumstances of its application, an agreement whereby one woman bears a child for another and relinquishes the infant at birth. Surrogate motherhood has both advocates and detractors, each with strong arguments in their favor. A number of important questions lie at the heart of the debate over the ethics and legality of surrogacy: Does surrogacy necessarily involve the exploitation of the woman serving as the surrogate mother, or turn her into a

commodity? What rights does the surrogate mother have? Is surrogacy equivalent to baby selling? Should brokers or third parties be allowed to make a profit from surrogacy arrangements? All opponents of surrogacy argue it to be a morally repugnant practice, especially when it involves a commercial transaction. It is often said that commercial surrogacy turns the miracle of human birth into a financial transaction, reducing the child and the woman bearing it to objects of negotiation and purchase. It turns women into reproductive machines. Critics also maintain that surrogacy leads to a confused parent-child relationship that ultimately damages the institution of the family. They argue that coercion at the societal level, instead of personal level, causes poor women to become surrogate mothers for the affluent and it ultimately leads to the transformation of the reproductive abilities of a whole class of women into a brokered commodity. Advocates for surrogate motherhood propose it as a humane solution to the problem of infertility. They note that infertility is common, affecting almost one out of six couples, and that surrogate motherhood remains the only option for some couples who wish to have children to whom they are genetically related. It is said that adoption does not adequately meet the needs of infertile couples who wish to have a baby. Those who favor commercial surrogacy object to characterizations of the practice as selling of babies. A surrogacy contract is a contract to bear a child, not to sell a child. The payment made to a surrogate should be seen as a fee for gestational services, just like the fees paid to lawyers and doctors for their services. It can be argued that in a successful surrogacy arrangement, all parties benefit. The intended parents take home a cherished child, and the surrogate receives a monetary compensation for undergoing the pregnancy and the satisfaction of knowing that she has helped someone realize a special goal.

2. Fertility Tourism in India

The phenomenon of fertility tourism isnt new. In late 1970s patients with fertility problems started travelling abroad to undergo treatments such as

surrogacy, third party egg and sperm transfer and in-vitro fertilization etc. which are collectively known as Assisted Reproductive Technologies or ARTs. Over the years the demand for ARTs rose steadily and due to emerging ethical and medical concerns, industrialized nations moved towards regulating commercial surrogacy. Strict legislation and laws in such countries favoured the rise of commercial surrogacy in countries such as India. India soon rose to top of the ladder due to minimal costs, substantial number of women willing to engage in surrogacy contracts, outsourcing of Indian labour and most important of all, vagueness in laws governing the aspect of commercial surrogacy and surrogacy contracts. It is pertinent to note that commercial surrogacy in India enjoys legal status. Indias rapidly growing commercial surrogacy industry is estimated to be around 445 million US dollars per year.1 In November 2007 a Japanese couple Ikufumi and Yuki Yamada travelled to India to hire a surrogate mother who would bear a child for them. Their desire to have a child was fulfilled at Akanksha, an Infertility Clinic which has become a global hub for surrogacy over the years, located in Anand, a small town in Gujrat. Under the guidance of Dr. Nayana Patel, the director of the clinic, a surrogacy contract was arranged between the Yamadas and an Indian woman named Pritiben Mehta. The clinic generated an embryo from Ikufumi Yamadas sperm and an egg harvested from an anonymous Indian woman which was further implanted into Mehtas womb. In June 2008, the Yamadas underwent a divorce. On July 25, 2008, Baby Manji was born to the surrogate mother. Yuki Yamada expressed that she didnt intend to raise the child. As per the contract, the egg donors responsibility had ended the moment she provided the egg and with the birth of the child, the surrogate mothers responsibility had ended too. This led to a huge legal and diplomatic crisis. Upon Yuki Yamadas refusal to accept her, Baby Manji was left without a mother. She lost identity and nationality. The surrogacy contract was devoid of any clause referring to such a situation. The parentage and the nationality of Baby Manji were legally improbable to determine under existing notions and laws relating to family and citizenship in Indian and Japanese law. The case generated articles in newspapers such as The Hindustan Times, Daily News & Analysis, The Times of India as well as
Surrogacy a $445 million business in India, The Economic Times, August 25, 2008
1

The Economic Times, Japan Times, The New Zealand Herald, South China Morning Post, The Australian, The Advertiser (Australia), London Times, the Daily Mail, BBC News, CNN, and The New York Times along with huge media outcry in India.2

Reproductive holidays in India are a real getaway for foreigners from conditions back home. Fertility tourists are people desperate to break free from not only financial, but also legal and ethical constraints. Indian clinics woo patients with the lingo of free choice and a can-do stance.
An economic outlook of the Indian Surrogacy industry suggests that it provides empowerment and monetary benefits to surrogate mothers and the aforementioned fertility clinics. As Dr. Nayana Patel puts it: A woman who becomes a surrogate is paid more money than she could earn in her entire lifetime. She is doing something that she believes is good and makes her proudbearing a child for a couple desperate to start a family, while at the same time providing for her own family. Its easy for people in India and abroad who have never experienced infertility or poverty to say this is exploitation. But we are providing a service that profoundly changes peoples lives for the better. However, she also outlines the scope of exploitation: It is sad if the surrogates are going into it purely because they need the money and there is also the risk that the children are being treated as commodities, which would be totally wrong. In order to regulate and protect the rights of the subjects involved, the Indian Council of Medical Research (ICMR) has given Guidelines in the year 2005 regulating Assisted Reproductive Technology procedures.3 The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy

2 3

Institutions in Crisis, The Kenan Institute, Duke University www.icmr.nic.in/1123aspx

arrangements. The following observations have been made by the Law Commission: y Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes. y A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child. y A surrogacy contract should necessarily take care of life insurance cover for surrogate mother. y One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different. y Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

y The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only. y Right to privacy of donor as well as surrogate mother should be protected. y Sex-selective surrogacy should be prohibited. y Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

However, these guidelines have no legal sanctity and are not binding. Silent on major issues, they lack teeth and are often violated. Elusiveness on fundamental issues such as surrogates rights, surrogates minimum age, free consent, and requirements regarding adoption in the guidelines has attracted a lot of criticism. Introduction of the ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION) BILL 2010 by the Ministry of Health and Family Welfare, Govt. of India is a step towards the regulation surrogacy in India. It aims to put a check on the rapid growth of fertility clinics throughout the country. Its becoming important to guarantee that the services offered by such clinics are within the realms of ethics associated with surrogacy. The bill also aims to provide surrogacy within a framework of proper ethics and medical practice to provide infertile couples with an opportunity to bear a child. A careful perusal of the present situation in India highlights the importance of such a regulation. However, surrogacy need not be viewed as a chalice to pour down a never ending shower of profit. It is human altruism redefined. As Elizabeth Stone puts it, Making the decision to have a child-it's momentous. It is to decide forever to have your heart go walking around outside your body."

3. Medical Ethics & Surrogacy: Creating Life on a Petri Dish

Traditional or Conventional or Genetic Surrogacy involves the artificial insemination of a woman who agrees, usually in return for payment, to

give the resulting child to the childs commissioning parents by surrendering her parental rights. Often, the fathers infertile wife becomes the childs adoptive mother. The woman bearing the child is in most cases genetically related to the child, though Gestational Surrogacy (in which the ovum is provided by the fathers infertile wife or other donor) is possible as well. Traditional Surrogacy dates back to biblical times. In Genesis Chapter 16 1-4,4 Sarah, the wife of Abraham was unable to bear a child to him. Hagar, Sarahs maid mated with Abraham and their union gave her a child. Genetic surrogacy has been around for a while but it took many years for Gestational surrogacy to happen.

The first successful Gestational surrogacy was reported in 1985.5 The woman was without a uterus but the ovaries were functional. Through In Vitro Fertilization an embryo was created using the egg and the sperm from the couple. The embryo was implanted into a host uterus of a surrogate for gestation and delivery. Its important to note that in Traditional surrogacy, the child bears genetic resemblance to the surrogate mother while in Gestational surrogacy, as mentioned above, the child bears no genetic resemblance to the surrogate mother. The need for traditional Surrogacy might arise out of the following situations: y y Non functional ovaries Maternal genetic diseases

While gestational surrogacy has totally different causal factors: y y y Absent uterus Recurring miscarriages IVF implantation failures

If the female partner of the infertile couple has poorly functioning ovaries along with a missing uterus, another woman can donate her
4 5

Genesis Chapter 16 1-4, The Holy Bible New England Medical journal 1985, 313:135

eggs. The donated eggs are then fused with the sperm from the male partner of the couple and the consequential embryo is implanted into the gestational surrogate mother. The process of gestational surrogacy involves the removal of eggs from the female of the infertile couple. The eggs are then combined with her partner's sperm. The number of eggs removed varies from case to case, though on an average, its close to 10. The fertilization rate depends on the sperm and eggs. Upon the implantation of the embryo, the extra embryos are cryogenically preserved for future use and also as a backup option if the pregnancy fails or miscarriage happens. The preserved embryos can be thawed and transferred without the IVF process later on. This process is called Frozen Embryo Transfer. This process has a potential for misuse. The preserved embryos can be used by the fertility clinic without the consent of the genetic parents for monetary gains with a malafide intention. This would essentially mean that the clinic is considering the embryos as a commodity. Such practices have been reported in recent times. A lot of ART centers promote Gamete Intra-Fallopian Tube transfer (GIFT) or Zygote Intra-Fallopian Tube Transfer (ZIFT) for gestational surrogacy. The GIFT procedure involves the implantation of eggs and sperm directly into the Fallopian tube i.e. the site of natural fertilization. In ZIFT procedure, the fertilized embryos are transferred into the fallopian tubes instead of the uterus. In Vitro Fertilization and Embryo Transfer involves mixing sperm with ova in vitro in order to produce embryos. The embryos are then transferred via surgical incision into a womans uterus. Ordinarily, multiple embryos are transferred in order to increase the probability that at least one of them will implant. Because several embryos are transferred, the technique is associated with an increased probability of multiple pregnancies. The complication of multiple pregnancies is never publicized by the clinics. In some cases, the embryo may be transferred into the Fallopian tubes. Gametic Interfallopian Transfer, widely used technique, involves mixing gametes in vitro, but without directly confirming penetration of the ova by sperm. The mixture is then transferred into the fallopian

tubes. Intra-cytoplasmic Sperm Injection involves injecting collected sperm directly into an ovum. As per the guidelines observed by the fertility centers, the sourcing and storage of gametes, embryos and surrogate mothers has to be recorded. Indian fertility clinics offer ART services at one-fourth of the price in the West. However, the rise of fertility tourism in India has its share of problems. Misuse of ARTs has lead to a decline in the sex ratio. A misuse on the part of the clinic would lead to the commoditization of human body parts. Such commoditization has already been observed in renal transplants. A substantial number of such issues are a consequence of the unregulated ART industry. Its the job of the state to look after the health and nutrition of its citizens and thereby address the rising infertility by providing adequate medical services. ARTs have been known to have relatively low success rates. Hyper-ovulation Syndrome, Multiple Pregnancies are just some of the complications arising out of ARTs. Clinics are free to offer treatments that in their professional judgment are able to help their patients. This approach has allowed physicians to offer ARTs without prior review and oversight. The use of such technologies without oversight is a cause of great concern. As a result of IVF there are numerous spare eggs, and embryos. The ownership and fate of these embryos is one of the major questions arising from the use of IVF. There are also many eggs that have been taken from women being sterilized, and they have donated the eggs for scientific research. These eggs can then be fertilized to provide a large supply of human embryos for research. The eggs are being used for research but there is no actual safeguard to prevent misuse of such eggs and embryos. The American Medical Association has drafted a code of medical ethics related to ARTs. 6 The code titled Ethical Conduct in Assisted Reproductive Technology lays down the following

Ethical Conduct in Assisted Reproductive Technology, The American Medical Association, www.ama-assn.org

guidelines to emphasize the value of existing standards to ensure ethical practices in assisted reproductive technology (ART): y The medical professions development of technical and ethical guidelines for ART should continue. Education of the profession and patients should be pursued through widely disseminated information. Such material should include information on clinic-specific success rates. Fertility laboratories not currently participating in a credible professional accreditation program are encouraged to do so. Professional self-regulation is also encouraged through signed pledges to meet established ethical standards and to comply with laboratory accreditation efforts. Physicians who become aware of unethical practices must report such conduct to the appropriate body. Physicians also should be willing to provide expert testimony when needed. Specialty societies should discuss the development of mechanisms for disciplinary action, such as revocation of membership, for members who fail to comply with ethical standards. Patients should be fully informed about all aspects of ART applicable to their particular clinical profile. A wellresearched, validated informed consent instrument would be useful for the benefit of patients and professionals. Payment based on clinical outcome is unacceptable. Physicians and clinicians practicing ART should use accurate descriptors of available services, success rates, and fee structure and payment obligations in promotional materials.

Drafting a code as mentioned above should be the goal of the government to regulate the Indian Commercial Surrogacy Industry. The ART (Regulation) Bill, 2010 is a giant step towards the accomplishment of the goal.

4. Ethical Aspects of Surrogacy

Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality that is, concepts such as

good and evil, right and wrong, virtue and vice, justice and crime, etc. (www.thefreedictionary.com) We believe that ethics in surrogacy cannot be demarcated into black and white but since it stirs basic human emotions and transcends mundane motives, there is nothing wrong in surrogacy in principle. It is simply a way for the infertile couple to raise a child of their bearings and thus should be permitted as well as facilitated in the background of precaution and a transparent system. The system should be devoid of misuse and utter chaos over the life of a child which is the utmost concern without causing harm to the parents. By parents we mean both the surrogate and the commissioning couple. Its a brave step by all the parties involved which demands respect in the eyes of society. Surrogacy in the most objective sense is simply making use of the biological gift of birth by a woman to help another in her failure to do so. Intended parents or couples who want to raise kids with biological connection with the child cannot be considered wrong or morally incorrect on the grounds of possible exploitation. After all, if we are considering moral high grounds then why not look at it this way that a couple who want their own child to love and take care and another woman who is willing to do carry that child for them is a great way to start a family. In the entire process, the surrogate also gets monetary and health benefits from the intended parents. Parenthood is a highly emotional, personal, legal, medical and financial issue. Surrogacy remains the only option for couples who have fertility problems and still want to raise a child to which they are biologically related unlike other options such as adoption where there is no connection whatsoever. We asked parents, students, workers around and what their views on surrogacy were. Surrounding a high emotional response, they support altruistic surrogacy completely and consider commercial surrogacy as unjust and morally wrong. This reflects a general public opinion. It was not surprising to notice that altruistic

surrogacy is viewed with an open heart. But a doubt arises that if this is driven by a general idea to be good from a distant. Maybe the response is driven by an instinctive human need to protect the women who are vulnerable to exploitation. Our Society has a strong view on this issue but completely ignores the fact that the same woman probably has no money to feed her own children. So if she involves herself in this agreement for monetary benefit, then how is that wrong? On what moral ground do we get the liberty to deny a woman the same? It is true that unregulated industry cannot boom because the mother needs the monetary benefits for ignoring her health factors and exposure to likely exploitation. We are of the opinion that there is a desperate need for a paradigm shift in the society we live in and accept this approach. There is an obvious concern of the surrogate mother unwilling to part with the child and our emotional response to it is an immediate sadness for the mother while completely ignoring the that she is aware of the fact that she is simply carrying the child in her womb for 9 months and the child is going to be in safe hands after that. It can be compared to an unmarried girl giving her child up for adoption for the childs better future. This is not a dispassionate view but a new approach to a highly misunderstood option. Public opinion as the case in point has even dragged this to being comparable to prostitution as selling the womb is comparable to selling bodies. We maintain that this statement and the underlying opinion are completely unfair and absurd. India as a nation is a very sensitive one. Public opinion, media outcry and our culture play a major role in how we operate. In fact we are one of the few remaining nations who still use its customs as a source of law. An effort to pass the proposed ART (Regulation) Bill, 2010 is a major step of progress in a country such as ours. Although surrogacy is not a new solution to an old problem and is very much present, it still hasnt received a very warm response and is operated in a legal vacuum. The bill is a strong and brave step as surrogacy is already being followed but needs to be

regulated properly especially in situations where theres a possibility of people such as family member and medical professionals using surrogate mothers to profit. Then again, surrogacy contract if executed properly will put the surrogate mother in a better economic position to decide for her. A transparent contract between the two parties, harmless to anyone and a strong structure to support it, will clear out any further complications. A positive initiative and approach to surrogacy will make sure that the ultimate objective of creating lives will not be shrouded in legal and moral hassles. Critics and sceptics of surrogacy have reasonable concerns that there is a huge scope of degradation and devaluation of women surrounding surrogacy. Surrogacy has been labelled in this light for reasons we cannot ignore. Such as, the rights of the surrogate mother are minimal and the situation immediately raises questions if the womans womb is misused or abused in any way. In any circumstance, the surrogate mother can be asked to terminate the pregnancy. What if she aborts a child disabled since birth? The possibility of failure of such a system is inevitable but due care and proper regulation can benefit a great number of couples around the world and a strong family unit where the child as well as the parent do not feel alienated or unrelated due to the missing biological connection. The rights of the surrogate mother is an important and a serious issue to be considered because a lack of same would turn this into an unethical and pure abuse of women and the age old notion of using a womans body as a child producing machine would come true. To defy that is the purpose of a new open approach where surrogacy can be viewed in a different perspective. The accepted belief is that the medical professionals and the rest will look at it as a profitable sector and thus exploit the economically needy, as the surrogates in almost all the cases are of lower economic strata. Thus theres a need of legal counsel and help for the surrogate mother so that it can be ensured that she understands her rights of claiming the money and privacy issues.

What generally ignored are the rights of the parents. Can they inform the child of the surrogacy for his interest and is it ethically correct to do so? We believe that it is a matter of personal choice and discretion of parents, as is the entire subject of surrogacy. This is where a contract comes into play and provides a relief to the surrogate mother as well as the intended parents from any mishap or dispute. A disciplined medical contract within an ethical framework is needed. If followed, the scope of misuse can be largely reduced. The gap between pregnancy and maximum number of pregnancy will be dealt with in regulating the arrangement; also the mother will clear the criteria to be a healthy mother. It would not only cover the insurance and medical factors but other legal issues such as citizenship and privacy rights. If everything is transparent and looked upon by professionals, doctors and counsellors there will be no need of such scepticism. Ethical issues which are only supported by grand assumptions of exploitations will be passed off as a regulatory precaution. 5. Surrogacy and its Economic Implications Medical Tourism is a growing sector in India. It is expected to experience an annual growth rate of 30% and become a 950 million INR7 industry by 2015. With decades of experience in providing excellent medical services, India has started to attract more people from around the world and is gradually expanding into a global medical hub. An estimated 150,000 people from the Western countries travel to India for healthcare procedures every year, primarily due to the combination of factors that have developed steadily over the past few years, which include low cost, less waiting time, world class quality, personalized services and rich cultural heritage. Commercial surrogacy has a big share in the rise of medical tourism in India. Commercial surrogacy has been decriminalized in India since 2002, as it is in many other countries,
7

The Economic Times, December 2009

including the United States and Israel. But India is the leader in making it a viable industry rather than a rare fertility treatment. Due to the increase in the cost for medical treatment in the western world, it has become inevitable for people to travel away from home, in order to get the same at a lesser price. India has already become a popular destination for people to travel and get an equivalent quality medical treatment, at significant lower costs. For instance, a commercial surrogacy arrangement in the US that costs US$ 200,000 can be as efficiently conducted in India, at a significantly fractional cost of US$ 20,000 30,000. A recent study reports that around 350 fertility clinics are working all over the country. (Value Added Travel by Dr. Arati Verma, Dr. Shalini Bhalla, Medical Tourism Magazine, Issue 2) Commercial selling of eggs can fetch a woman US $4000, and becoming a surrogate mother can bring another US $20,000. Most women argue that they are doing it because of their desire to help others, because they have witnessed the pain of infertility and want to do something to help. Most of them dont mention the money. Nevertheless, $20,000 is a large sum of money and applications from women to become surrogate mothers has increased over the years. Regardless of the health of the economy or the ever looming fear of recession, the women will still want to become mothers, so there will always be demand for egg donors and surrogate mothers. So that might eventually lead to the phenomenon of outsourcing. Outsourcing of wombs seems like a farfetched idea but the governing economics make it a possibility. There is already an active international trade in baby production, eggs, sperms, donors and wombs. There are rapidly advancing technologies that are certain to expand both the demand for surrogacy services and the supply of surrogate mothers. Yet the underpinnings of the surrogacy market rules, laws, rights and contracts are evolving slowly. The demand function in the market is becoming so intense that commissioning parents are entering into surrogate arrangements without affirming the legality and the consequences of surrogacy. Commercial surrogacy at the fundamental level is an issue of ethics and economy. It involves an economic relationship that sits within a deep ethical calculus, one that goes into the very

heart of morality. Advocates of surrogacy might define it as a winwin situation. The doctors get clients, the childless couples get a child and the surrogate mother gets much needed money. However, the horror of exploitation is ever present. The most shocking stories, concern the surrogate mothers. The surrogates are often in dire financial straits. One woman told a journalist that with a $4,000 debt and an alcoholic husband, she had first considered selling a kidney to get her out of debt, but then decided that the $ 7,000 surrogacy fee was the better option.8 (Commercial Surrogacy and India, Dr. P Naidu) The usual, Empowerment v. Exploitation, debate eludes something much more fundamental that the surrogate industry reflects about India. India has jumped several stages of development and zoomed straight into a service economy. Indians stock call centres and tech help lines where Westerners can get their questions answered efficiently. In these centres, Indian youths temporarily adopt new personal identities by using Western names and accents. Another, milder way in which Indians act as "surrogates," or substitutes for Westerners. The country is romanced by the idea of selling human capital as its next great commodity. Therefore surrogacy resonates not as an old problem of exploiting the poor but as an inevitable part of the "New India" where the locals provide much needed services for the new global economy. This kind of forward-thinking economic liberation dovetails with an ideology of personal freedom. "I think women should be free to choose what they do with their bodies," says Dr. Aniruddha Malpani, a fertility specialist in Mumbai. "We shouldn't treat them as stupid just because they are poor."

6. Conclusion
Where a blood relation sobs, an intimate friend should choke up, a distant acquaintance should sigh, a stranger should merely fumble sympathetically with his handkerchief - Mark Twain

Dr. P Naidu, Commercial Surrogacy and India

This quotation depicts the importance of blood relations and the very essence of the entire subject of surrogacy. Why we human beings entwine ourselves into the web of medical, legal, social, economical and moral complexities attached to surrogacy is because these relations affect our entire existence. We might deny it but we cannot ignore the fact we will always love our own child way more than our neighbours. The fight to make surrogacy an accepted approach towards reproduction is propelled by the human need to maintain the connectivity to its children. Hence, surrogacy on a very personal level represents the human stubbornness to have a genetically identical offspring. Surrogacy as a dynamic field of reproduction is undergoing through a lot of innovation and reform. The advocates of surrogacy are terming it as the only solace for infertile couples who wish to have a genetically similar child. Surrogacy is being viewed as a harmless contract between two parties for the purpose of creating a new life. The moral issues and the social stigma attached to it are slowly fading away and surrogacy is becoming a mainstream medical procedure. The Indian surrogacy industry is becoming a major contributor to the medical tourism industry in India. After studying the pros and cons of surrogacy arrangement, we are of the opinion that altruism and commercialization can go hand in hand. A woman who spends nine months of her life carrying someone elses baby deserves to be compensated adequately for undergoing through the evasive medical procedures and pain of it all. The ultimate result achieved, that is, giving birth to a child, is still a very beautiful experience for the surrogate mother and the intended parents. Critics have always maintained that surrogacy has its share of problems which include unregulated mushrooming of fertility clinics and the scope of exploitation of women. But we argue that surrogacy should not be considered as a taboo just because it has scope for exploitation and upsets the morality of certain individuals. Surrogacy is human altruism at its best. The proposed Assisted Reproductive Technologies (Regulation) Bill, 2010 and the increasing influence of bodies such the Indian Council of medical Research (ICMR) is a step towards curbing the horrors associated to surrogacy.

We recommend that commercial surrogacy in India should be embraced by the government and accept responsibility to bring out awareness and counselling for the surrogates. Under the purview of such control the scope of misuse is reduced. Various bodies and NGOs need to play a more involved part in facilitating and improving the face of surrogacy. We would like to conclude by saying that every new idea has to be nurtured and enough space needs to be provided for it to grow into a mature system.