Author: Ankita Maji
India is a developing country where a large section of people are illiterate and struggle to earn their basic livelihood. People are often lured into unfair business in order to earn money. As a result of this, a lot of people are subject to exploitation, human trafficking being one of them. Trafficking in India has always been on the rise, and Commercial Surrogacy in India has been identified as one of the modes of trafficking. The business of Commercial Surrogacy in India has been growing every year, with a lot of women volunteering to become surrogates. Poor and illiterate women are subjected to trafficking, in order to boost the reproductive industry in India. Trafficking earlier involved buying and selling of women and children for prostitution and illegal activities, but under Surrogacy, women are used as machines for facilitating the reproductive industry. With no particular laws in place to regulate this business, and protect the surrogates, the clinics and agencies who act as a third party between the surrogates and the intending couples manipulate the entire system.
The developments in the field of medical technology and Assisted Reproductive Technology (ART) has turned India into the most popular Commercial Surrogacy hub of the world. India was one of the few countries in the world to legalize Commercial Surrogacy in 2002. The stigma of not being able to have a child and the wearisome process of adoption has made parents both in India as well as abroad turn towards the option of Surrogacy. Given the internationally competitive service fees, relaxed rules governing this practice and a booming medical industry, India became a viable option for surrogacy. The surrogacy system in India functions like a business industry, with clients placing their requests and choosing their surrogates, money transactions taking place between the clients and the clinics, followed by the entire process of recruiting and impregnating the surrogates. However, if we go deeper into this seemingly organized and structured business, we realize the true horrors that this industry holds. Indian women are often lured into this business with the promise of financial aid, while in reality they are subjected to highly exploitative practices, which often results in their death.
SURROGACY AND ITS SCENARIO IN INDIA
Surrogacy is an agreement through which a woman (surrogate) carries a child in her womb for someone else, and after birth, the child is handed over to them, who became the real parents of the child, whereas the surrogate is paid for her service to them. Surrogacy practice can be retraced to the ancient times when ‘Niyoga Dharma’ was practiced, which refers to the creation of provisional help in case the husband was infertile. This comes as an alternative for those couples who suffer from infertility or are unable to reproduce. This can be done either through Traditional Surrogacy, where the surrogate mother is impregnated with the sperms of the intended father artificially, making her the biological mother of the child, or it can be done through Gestational Surrogacy in which a fertilized embryo is placed inside the uterus of the surrogate mother who then carries the baby up to delivery.
A study backed by the United Nations conducted in 2012, estimated the economic scale of the Indian surrogacy industry to be 400 million dollars a year, with over 3000 fertility clinics across the country. The surrogacy “market” has led India to earn the sobriquet ‘world capital for surrogacy’ while a village in Gujarat (Anand), earned the title of the ‘cradle of the world’.
After the case of Baby Manji in 2008, the debate regarding the Supreme Court’s decision to legalize Commercial Surrogacy, and the need for proper rules and regulations for surrogacy arose in India, on the basis of which, the Assisted Reproductive Technology (ART) Bill was introduced, which talks about the process of in-vitro fertilization (IVF), intrauterine insemination (IUI), oocyte and sperm donation, cryopreservation and surrogacy as well. The Union Cabinet under the chairmanship of the Prime Minister nodded the approval of the bill, which is soon going to become an Act. As of now, we do not have any legislation which regulates ART in India.
Even though this whole thing seems like a win-win situation where a poor woman earns money for her livelihood by providing service, an infertile couple finally gets to hold their biological-child in their arms, and foreign currency flows into the country, the reality is altogether a different picture. Lack of proper legislation has resulted in exploitation of both the surrogate as well as the intending couple, where the profit is earned by the commercial agencies. Childless couples have to face long legal battles for cross border surrogacy. Problems of language, nationality, parentage along with citizenship rights of the child are only a few among those. There are cases where the baby born after surrogacy is not genetically related to the parents and is disowned by them, as a result of which the child ends up in an orphanage. The condition of surrogates in India is even worse. Mostly these women belong to poor and backward villages who are often forced or pushed into this by their husbands or by agents, for earning easy money. They do not have any right to take decisions with respect to their own bodies. Unlike the U.S, there are no arrangements in India for psychological screening or legal counselling. After their recruitment, these surrogates are shifted to hostels for the whole period of pregnancy, under the guise of providing antenatal care, when in reality, the main motive is to protect them from the social stigma that surrounds the community, so that they do not feel discouraged to pursue this. They spend all their time worrying about their family and are allowed to meet them only once in a while. What is worse, is that in case of a miscarriage, or any other adverse results, they are not likely to be paid the promised amount, and there is lack of proper provisions that covers post pregnancy medical or mental support and insurance.
IS THE SURROGACY BUSINESS IN INDIA A NEW MEANS TO HUMAN TRAFFICKING?
The United Nations has defined trafficking as, “any activity leading to recruitment, transportation, harboring or receipt of persons, by means of threat or use of force or a position of vulnerability”.As stated earlier, the surrogacy business in India has been thriving for more than a decade now, and any growing business leads to a growing demand. The demand for Surrogate mothers by medical clinics or the reproductive industry for Gestational or Commercial surrogacy has always been on the rise. To meet the high demand, a lot of women are trafficked in the global reproductive trade market in the name of business. Pinki Virani, in her book, ‘Politics of the Womb and the Perils of IVF, Surrogacy and Modified babies (POW)', talks about the rampant oocyte buying and selling in India, where excess eggs are taken out of a woman’s womb for commercial gains. She highlights the manner in which women are given several injections in their stomach for producing multiple eggs, and also two cases (26 year old Yuma Sherpa from Delhi and 17 year old Sushma Pandey from Mumbai), where the women died due to such ovarian hyper-simulation. The politico-social emotional manipulation of the woman’s connection to her own womb reduces her to just her uterus, and colonises not only her body but also her mind. It’s ruthless, what can be done to women in artificial reproduction, in the name of a child. While researching for her documentary film, ‘Womb on rent’, Ishani K Dutta found that even though the Indian Council of Medical and Research (ICMR) states that a girl below the age of 18 is not eligible for donating her eggs, she found that a lot of underage girls were also involved in this business. There was another incident in 2011, in which a girl from an orphanage in Haryana was sold twice within a span of 3 years.
When the Surrogacy business in India started, a lot of unethical means and unsafe practices were in place which put the surrogate mothers at a lot of risk. In order to keep pace with the growing number of international clients, surrogacy clinics ran ‘baby factories’ where the Indian women were forced to live till the time they delivered their babies, with zero assistance for the family she had to leave behind. Also, these agencies charged almost double the amount that was actually received by surrogates; they became the subject of exploitation as year after year their poverty and lack of education kept pulling them back into this cycle for financial support.
Women who choose to become surrogates are generally in a vulnerable position due to economic difficulties, which makes them easy prey for exploitation. For those surrogates who are driven by compassion for infertile couples and therefore opt for this admit to underestimating the emotional and physical tolls of carrying someone else’s child. There are a lot of stories which talk about their unexpected attachment to the child- which lasts long even after giving birth to the child. Stories of intended parents treating the surrogates as mere vessels who are only hired for the purpose of serving them by carrying the child, also exist. Little thought is given to the fact that pregnancies are much more than just hiring someone’s womb or uterus for a period of time- it requires full bodily commitment.
While the government has introduced several legislations like the Immoral Trafficking (Prevention) Act, 1956, Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) and the Constitution of India provides for Article 23 which makes trafficking of human being or any form of bonded labor punishable by law, along with several provisions of the Indian Penal Code, none of them seem to discuss the problem of trafficking that happens within the surrogacy business.
An important legislation in this regard was the Surrogacy Regulation Bill, 2019, which was introduced with the intention to protect the women in India and to make sure that they do not get trapped in this abyss of exploitation. This bill prohibits Commercial surrogacy while only allowing Altruistic Surrogacy in India. This means that no monetary amount will be paid to the surrogate mother, except for the medical expenditure and the insurance covered during pregnancy. This bill also requires that the intending couple should have a ‘certificate of eligibility’ from the concerned authority and bans foreign couples, homosexuals, and live-in couples from the eligibility list. This was an attempt by the Indian government to make the process of surrogacy safer for the people involved, rather it resulted in a restrictive process, making surrogacy almost difficult or impossible. The 102nd Parliamentary Standing Committee has termed this bill to be against the spirit of the constitution of India. In the case of Suchita Srivastava vs. Chandigarh Administration, the Supreme Court held that the reproductive choices of women fall under Article 21 of the constitution, and also includes ‘privacy, dignity and bodily integrity’ of the woman. Also, arguments regarding the potential loss of livelihood for the surrogates have also been raised. The Supreme Court in the case of Consumer Education and Research center and Ors. v. Union of India held that the scope of Article 21 is very wide and includes the right to livelihood as well.
The government has taken a step to prevent the exploitation of surrogates with the introduction of the Surrogacy Bill, 2019. This will surely be helpful to curb the unethical practices of exploitation of surrogate mothers, abandoning the children born out of surrogacy and importing of human embryos and gametes which have been continuously reported. The bill has tried to address two major issues- the surrogates and the children born out of surrogacy. However, the bill still consists of several loopholes which need to be mended. Even though this business has negative implications, the fact that it helps women earn bread for their families cannot be denied. Steps should be taken to make the option of Surrogacy a safe one, and not as a last resort for the surrogate mothers to earn their livelihood. Commercial surrogacy should not be banned, stringent laws to control it should be in place. Infact banning at this stage may create implementation challenges, extortion by state authorities and maybe even push this business underground. More transparency between the clinics/agencies and the government along with proper terms and conditions between the surrogates and intending couples should be established. The law should be implemented in such a way so that it covers all the grey areas and protects the rights of both women and children.
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