By: Mehpara Haq
Surrogacy raises fundamental issues regarding the nature of personhood, the attributes of human dignity, individual autonomy and the perimeters of choice, the distinction between what can be made an object of commerce, what must remain in the domain of gift, and what ought not to be transferred at all. This includes the criticism that surrogacy leads to commoditization of the child, it breaks the bond between the mother and the child, it interferes with nature, and it leads to the exploitation of poor women in underdeveloped countries who sell their bodies for money.
Commoditization of Surrogate Child
It is true that international agreements and the jurisprudence expounded by numerous courts reflect the notion that dignity prohibits the commoditization of the human body independently of the will of the individual whose commoditization is at issue. To put it simply, surrogacy is a process which has the potential to violate human values and dignity. In the words of the Convention on Human Rights and Biomedicine, “the human body and its parts shall not, as such, give rise to financial gain.” Germany and Switzerland too explain their opposition to commercial surrogacy by referencing its reduction of the gestational carrier and the child she bears to objects of contract. CEDAW, in fact, recognizes maternity as “a social function,” rather than a commercial function.
The ethical implications of surrogacy arrangements remain highly controversial because of the commercial nature of international surrogacy and the high-value society places on bearing children and motherhood. One of the major concerns that raise the issue of human rights is that of commoditization of child in commercial surrogacy because it places the reproductive capacity of the woman in the market place. This is because the removal of the act of childbearing from the idea of motherhood treats women as “objects of reproductive exchange” by effectively “renting” wombs and devaluing childbearing.
Exploitation of Surrogates
There are diverse moral and ethical issues in addition to the legal issues surrounding surrogacy which have implications on human rights law. The lack of regulation in this field has resulted in the exploitation of surrogates and has also denied rights of identity and citizenship to the surrogate child. Surrogacy is a process where the wombs of ‘non-valuable’ women are used as “breeders” for the embryos of “valuable women”. In the context of her observations, Sandra Harding once observed that “the Baby M case could be the forerunner of the use of poor and third world women’s wombs to produce children for economically advantaged European and American couples”.
The Gujrat High Court has also raised the concern about the possible exploitation of Indian surrogates through surrogacy. Instances of exploitation of surrogates are more in case of international commercial surrogacy where surrogates are from poor background and are often forced by their in-laws to consent to such procedure that can earn the livelihood for the whole family. This raises the question of whether they are really exercising free choice in the matter, or whether a lack of economic alternatives gives surrogates no other feasible option. Their lack of legal or medical knowledge and the fact they are being offered sums of money which to them seem huge, make it difficult for surrogates to have equal bargaining power against the comparatively wealthy and powerful clinics and commissioning parents they contract with.
Though the commissioning parents and the fertility clinic take care of the health of the surrogate so that she bears a healthy and safe pregnancy, such care is afforded only till nine months. None of them takes care of the physical and mental health of the surrogate mother in the long run. In the documentary, Google Baby, a surrogate is filmed crying after giving birth to the baby and other surrogates mention that giving up a baby was the hardest thing they have had to do. Some also argue that free and informed consent cannot be given in case of surrogacy contract prior to the birth of the surrogate child because a surrogate cannot possibly know how she would feel after having carried the baby in her womb for nine months. Though the surrogates are acting only as the gestational carriers for the child, they do not have any genetic linkage with the child. Yet, there exists a biological relationship between the surrogate and the foetus. Since the surrogate has nurtured the child in her womb which even though may be rented, it may create a bond between the surrogate and the child and play an important factor in the identity of the child.
Some commentators have gone as far as to call international commercial surrogacy “reproductive trafficking” because “it creates a national and international traffic in women in which women become moveable property, objects of the reproductive exchange and brokered by go-betweens mainly serving the buyer.” There is a popular propensity to describe this travel as “reproductive tourism”. It should be professionally resisted and discouraged on ethical grounds. Infertile or reproductively impaired patients often make considerable sacrifices of resources and emotion in the hope to become parents.
International commercial surrogacy is a developing as well as a challenging area. It has many unresolved issues. It spawns issues such as exploitation of women, its potential to split parenthood and even deny basic rights to children born under such agreement etc. Moreover, it raises various ethical and moral issues such as commoditization of child, which according to various international conventions is illegal. The focus of this article was not to research into any one of these specific areas but to bring to light various moral and legal issues involved.
 Tejas K Motwani, ‘Surrogacy: Legal Analysis and Developments’ 2 KLJ 9 (2011).
(Mehpara is an alumnus of Dr. Ram Manohar Lohiya National Law University, Lucknow and is currently pursuing her LL.M degree from Indian Law Institute, Delhi.)