Ragini Kulkarni
Maharashtra, India

Motherhood is the most beautiful and divine gift to a woman. Every woman has a dream and a natural instinct that she will become a mother and nurture a baby. Unfortunately for some couples fulfilling this dream becomes impossible due to medical reasons. In such cases the concept of surrogacy has evolved and has now established itself in today’s era. In such situations surrogacy can be looked as a boon for modern man, something which fulfills one’s dreams and fills one’s life with joy, satiety, and meaning. However, in the current scenario this might be opted by gay couples, single men, or even women who are able to carry a child but choose surrogacy for some reasons and their convenience.

Is this so simple? Is the issue of surrogacy so clear and transparent that everything will be easy for those involved in it, the couple and the surrogate mother? The answer to this question is that surrogacy is a very difficult issue, beset with many ethical, social, and legal dilemmas.

Surrogacy is an arrangement in which a woman agrees to carry a pregnancy that is genetically unrelated to her and her husband, with the intention to carry it to term and hand over the child to the genetic parents with whom she enters into a contract for surrogacy.¹

Commercial surrogacy is the process in which an individual or couple pays a fee to a woman in exchange for her carrying and delivering a baby. At birth, the child is turned over to the individual or couple, either privately or through a legal adoption process. Couples with fertility problems, same-sex couples, and single people who wish to be parents are the most common types of people who seek surrogate mothers.²

When money is exchanged for pregnancy, some believe, surrogacy comes close to organ selling or even baby selling.
— Thomas Frank

Commercial surrogacy is legal in India, Ukraine, and California while it is illegal in England, many states of United States, and Australia, which recognizes only altruistic surrogacy. In contrast, countries like Germany, Sweden, Norway, and Italy do not recognize any surrogacy agreements. India has become a favorite destination of fertility tourism.³ In 2005, the Indian Council of Medical Research issued guidelines for accreditation, supervision, and regulation of ART (Assisted Reproduction Technique) clinics in India.⁴ However, it is important that these guidelines should be followed and not violated. The Indian government has drafted legislation, framed as ART Regulation Draft Bill 2010. The bill is still pending with the government and has not been presented in the Parliament. The bill details procedures for accreditation and supervision of infertility clinics (and related organizations such as semen banks) handling spermatozoa or oocytes outside of the body, or dealing with gamete donors and surrogacy, ensuring that the legitimate rights of all concerned are protected, with maximum benefit to the infertile couples or individuals within a recognized framework of ethics and good medical practice.⁵

The World Health Organization (WHO) reported that in 2008, more than 358,000 women died from complications related to pregnancy or childbirth. Furthermore, an alarming 10 million women suffer from injury, infection, or disease as a result of a pregnancy. The risks to life from surrogacy are therefore not insignificant, and may even be greater than those of normal pregnancy because of a higher prevalence of multiple births and caesareans.⁶

Ethical dilemmas related to surrogate motherhood are not only difficult to tackle but pose many questions to humanity. The following issues need to be taken into consideration:

Interestingly, both critics and fans of commercial surrogacy take on the human rights shield when supporting their positions. The Universal Declaration of Human Rights (article 16) says, “Men and women of full age . . . have the right to marry and found a family.” Article 27 goes on to say, “Everyone has the right . . . to share in scientific advances and its benefits.” By this reasoning alone, if the technology to have a child via surrogacy is available, then women have every right to take it up. Furthermore, in many cultures where having a child is considered a great gift and a blessing; denying a couple of this right can be seen as doing them a grave disservice.⁷

In surrogate motherhood, opponents argue that illiterate and impoverished women may be taken advantage of and convinced to become surrogates for large sums of money. These women are kept in seclusion throughout their entire antenatal period to protect them from social stigma. But what about the stress, anxiety, and emotional distress to the surrogate mother? On one hand she sacrifices her self-dignity, compromises with her daily duties in the household and stays away for that period of nine months and feels guilty that she has fallen prey to this trap. On the other hand she consoles herself that she has tried her best to make financial gain which will help her family. However the basic ethical question that arises is “Is this the only resort for women to obtain financial gains?” In fact in many instances in developing countries, there is no provision of insurance or post-pregnancy medical and psychiatric support for the surrogate mothers. This practice is unethical as woman is not a commodity and should not be treated such that after the child is born, her job is over.

There are views that it is ethically and naturally unacceptable for a woman to give birth to a child in order to surrender it to other people. These questions, among others, demand answers not only from ethicists, but society in general. The ethical dilemma arises because of the collision of the rights that are being realized by commercial surrogacy. There is a desire to preserve personal autonomy and the right to a free choice on the one hand, and the moral responsibility toward the child that is being born in this way and all the parental obligations on the other.⁸

Introspection of a surrogate mother
Why renting my womb, against humanity?
My body’s not a commodity.
Nine months, distress and anxiety,
No one can gauge my difficulty.
At least show basic humanity
Adhere to ethical guidelines with sincerity.
— Ragini Kulkarni 

The biblical tale of Hagar, Abraham, and Sarah is perhaps the first record of surrogacy in action, and Ancient Greeks would travel far distances to reach sanctuaries devoted to their gods in the hope of health improvement.⁹ The encyclical of Pope John Paul II dedicated to biomedical research and reproductive techniques¹⁰ contains several sentences on surrogate motherhood which clearly stress the unethical aspect of that practice and states that a child born with the help of medically assisted reproductive method finds its identity much harder, because its birth is beyond the scope of marriage, and its relationship with the parents is unclear.¹¹

In a study, a very interesting comparison is drawn between surrogate motherhood and adoption, stating that the effect of close bond between the surrogate mother and her biological child is often being neglected and that we do not discuss possible trauma of the mother giving her child away to the adopters. The author claims that the emotional bond between the biological mother and the child is extremely strong and that surrogate motherhood is unnatural and immoral because it violently “breaks” that bond.¹²

One important legal issue that arises is that what should be the nationality of a child if it is born in a country when surrogate mother and the biological father are not from the same country?

In India as per law—Surrogacy only furthers Right to Life under Article 21 of the Constitution:

The relation of the surrogated mother to the child she is carrying is nothing but womb leasing or womb for rent. After the birth of the child she has no right to keep the child because she is neither the mother (where both ova and sperm are from different persons) nor the owner of the genetic material. She is only a contractor who is willing to give the end product once the contract between her and the person is fulfilled.¹³

As per Indian Council of Medical Research guidelines 1 “ Surrogacy should be resorted to only if medically certified as the only solution to infertility or any other medical bar on pregnancy by the intending mother.” This should never be resorted by women as the “choice” method as they do not wish to go through the pains of pregnancy and give their profession more priority than motherhood.

Also as per these guidelines, “Abortion under the Abortion Law on the medical ground should be the inviolate right of the surrogate and the genetic parents have no claim over the amounts already paid.” What should be done if the baby is born disabled or in case of stillbirth? This would create a tremendous amount of emotional distress to the surrogate mother. What should be done if the couples separate and divorce or they die before the baby is born?

Are we able to protect the rights and interests of surrogate mothers whom poverty makes vulnerable? Can true informed consent ever be given by surrogate mothers? In light of the issues associated with surrogate motherhood, is not adoption a better practice than surrogacy?

Thus there are many ethical dilemmas associated with surrogacy which are very difficult to handle. However, it can prove to be a boon for mankind if all the ethical, legal, and social issues are considered and adhered to in society. It is very important that strict laws be enforced so that this does not become a business and to ensure that vulnerable women are not exploited.

Surrogate Motherhood an ethical complexity,
Many factors implanted in its causality.
Addressing ethical challenges a necessity,
Protection of rights could reduce vulnerability.
— Ragini Kulkarni

References

1. Ethical Guidelines for Bio Medical Research on Human Participants. ICMR, 2006.
2. Barnhart, A. “What is commercial surrogacy?” Wisegeek, 2003. http://www.wisegeek.com/what-is-commercial-surrogacy.htm. Archived from the original at https://web.archive.org/web/20170113030536/http://www.wisegeekhealth.com/what-is-commercial-surrogacy.htm.
3. Pikee Saxena, Archana Mishra, and Sonia Malik, Indian J Community Med. 2012, Oct-Dec; 37(4): 211–213.
4. National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India. Indian Council of Medical Research National Academy of Medical Sciences (India), New Delhi – 110029, 2005.
5. The Assisted Reproductive Technologies (Regulation) Bill – 2010, Ministry of Health and Family Welfare, Government of India. Indian Council of Medical Research.
6. World Health Organization (2010) Maternal mortality. http://www.who.int/mediacentre/factsheets/fs348/en/index.html
7. United Nations (1999) The Universal Declaration of Human Rights-Article 1, 16.1, 27.1. http://www.un.org/en/documents/udhr/index.shtml#ap
8. Sunčana Roksandić Vidlička , Dijana Hrstić, Zrinka Kirin, JAHR , Vol. 3 , No. 5, 2012, UDK 17: 347.6 (497.5), Conference paper, Bioethical and legal challenges of surrogate motherhood in the Republic of Croatia.
9. Robyn Perry-Thomas, Issue 7, Global Health, Commercial Surrogacy, A priceless commodity, University of St Andrews.
10. Surrogate motherhood is an objective mistake with regard to obligations of motherly love, marital fidelity and responsible motherhood; it insults dignity and the right of a child to be conceived, borne, born and raised by its parents.” – pointed out by Ivan Kešina in the article Ethical and moral aspects of human procreation, Part 1, Vol. 31/1996, No. 3, p. 142.
11. “A child has the right to be conceived, carried in the womb, brought into the world, and brought up within marriage: it is through the secure and recognised relationship to his own parents that the child can discover his own identity and achieve his own proper human development.” — Encyclical Donum vitae, Pope John Paul II.
12. Bhimji, S., Womb for rent: ethical aspects of surrogate motherhood, CMAI, Vol. 137/1987.
13. AnitaRao, Surrogate Motherhood-Legal perspective as cited in Kelra, K., 2010. Surrogacy Arrangements: Legal and Social Issues. Journal of Law Teachers of India. Volume 1 (Issue No.1-2), 131.

I acknowledge the encouragement received from NIRRH Manuscript No. (OTH/211/12-2014)