Written by Rudrabhishek Chauhan
“You have never really lived until you have done something for someone who can never repay you.[1]” – John Bunyan
What surrogacy actually is? Surrogacy is a recognized method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to another person’s child whom she will not raise but ultimately hand it over to the contracted party. The child’s genetic mother may be the surrogate mother, or as a gestational carrier, she may, carry the pregnancy to delivery after having been implanted with an embryo inside her.
Surrogacy is a blessing for all the infertile women, homosexual couples, and also for those who want to become a single parent and wish to have children of their own that is biologically related to them.
Surrogacy commonly is of two types:
- A Commercial Surrogacy: In this, the surrogate takes compensation for carrying and delivering the child of other person (other than medical and other reasonable costs).
- An Altruistic Surrogacy: In this, the surrogate does not take monetary compensations. Generally in most of the Altruistic surrogacy agreements, surrogate is a close relation to the parent wanting surrogacy.
While the agreement of Surrogacy is enforceable in some states it is also unenforceable in many. Let’s assume a hypothetical situation of Surrogacy and analyze all the reasons why an agreement of Surrogacy be either enforced or it should not be enforced.
Read: Surrogacy Law And Practice In India
A professional couple wanting a baby but they couldn’t have one of their own, at least not without any medical risk involved to the mother. So what they do is approach another woman(their friend) who is 28 years old, mother of three kids and a housewife who is willing to be the surrogate mother for the couple. The both party enters into an agreement, signs the contract of surrogacy in which the couple agreed to pay the surrogate(their friend) Rs.18 lakhs as the fee or part of their consideration plus all the expenses occurred in the course of nine months in exchange for which the surrogate agrees to be their surrogate, bear their child for them and then to give away the baby to the couples. Now what happens here is that the surrogate after giving birth to the child changes her mind and decides that she now wants to keep the baby with herself.
Now those who would want to enforce this agreement thinking that this is the right thing to do would argue that:
- Binding Contract[2] – The contract between both the parties is binding as before entering into this contract both the parties knew the terms of the contract before any action was taken. It was a voluntary agreement, surrogate mother knew what she were entering into and all three of them were intelligent adults regardless of their formal education or whatever so it obviously makes sense if you knew what you’re getting into beforehand and you make a promise so you should uphold that promise to the end. In other words, a deal is a deal.
- Lawful Consideration[3] – Consideration of both the sides were lawful so the contract should be enforceable in case of breach of contract. And in this the consideration for the surrogate was the Rs. 18 lakhs while the consideration for the couples was the service(surrogacy) which was provided to them by the surrogate so the contract is enforceable as neither party had superior bargaining position, a price for the service was struck and a bargain was reached. One side did not forced the other into entering this contract neither had disproportionate bargaining power.
Some countries like India allow Altruistic Surrogacy but consider a Commercial surrogacy to be illegal and not enforceable.
Now those who wouldn’t want to enforce this agreement thinking that to be the right the thing to do would argue that:
- Tainted/Flawed consent[4] – It can arise either because of coercion or because of lack of relevant information. It is said that under the contract the natural mother is irrevocably committed before she knows the strength of her bond with her child who is yet to born. She never truly makes a voluntary, informed decision, for any decision prior to the baby’s birth is, in most important sense, uninformed. A mother can’t ever know how strong of a bond she’ll have with her baby before its birth. So the consent given by the surrogate here is a tainted consent as she is not fully aware of the knowledge of the facts of the case so the contract here is not enforceable.
- Sale of Inalienable Right – The child has an inalienable right to his actual mother(biological mother) and if that mother wants it then that child should have a right to that mother because the bond that is created by nature is much stronger than any bond that is created by any sort of contract. And even if one says that a child doesn’t have inalienable right to her mother one need to know that a mother definitely has an inalienable right to her child. And enforcing this surrogacy agreement is like selling that inalienable right of an individual.
- Morally Dehumanizing – There are some areas where market forces shouldn’t necessarily penetrate and the whole surrogate mother area smacks a little bit of dealing in human beings which definitely seems dehumanizing and also it doesn’t seem right. It is dehumanizing because it is literally like buying someone else’s biological right and this agreement of surrogacy to a certain extent is like baby selling just not in an auction where anybody can bid.
Though there is a contract with another person or you have made agreements and whatnot but there is an undeniable emotional bond that takes place between a mother and child and it’s wrong to simply ignore this because you have written out something contractually. Also it easy to break everything down in numbers and enter into a contracts like you are buying and selling a property, car or anything of that sort but in contracts surrogacy there are underlying emotions where one is dealing with peoples here and these are not objects which are to be bought and sold. In simpler words dealing with humans is just wrong and if surrogacy be permitted then so should renting of wombs, baby selling, auctions where baby are bought and sold.
“…by requiring the surrogate mother to repress whatever parental love she feels for her child, these norms convert women’s labour into a form of alienated labour… her labour is alienated because she must divert it from the end which the social practices of pregnancy rightly promote – an emotional bond with her child.[5]” – Elizabeth Anderson
So what Anderson is suggesting is that certain goods should not be treated as open to use or to profit. Certain goods are property valued in ways other than use. What can be the other ways of valuing and treating goods that should not be open to use? There are many like respect, appreciation, love, honor, awe, sanctity and there are many modes of evaluation beyond use and certain goods are not properly valued if they are simply treated as objects of use. Also, there are some things in the society that money can’t buy and no matter how much one pays a surrogate to deliver a child after nine months of labour to him/her that just won’t be enough like ever.
Parental love is one of the major reasons why people these days go for Commercial surrogacy so that they can have their own child through surrogacy which would not be possible in the case adoption. There was a time when parental rights were all about trusts but these days they are just the rights of use and disposal of things owned; the child. The miracle of children’s birth and labor is no longer sanctified and sacred when a child is deliberately conceived just for the advantage of someone else, in return the natural mother receives material advantage, cash. Which is clearly, not done for the sake of the child, but for the sake of the natural mother or for the sake of the intended parents. And the child who is born is treated as a commodity; bought, used, and sold. Commercial surrogacy is even taken to the lengths of having the choice to specify the height, I.Q., race and other attributes. The child’s interests are not even considered. Also while the surrogacy takes place the intended parent has someone to properly look after their interests, but not the child. And the unborn child has no one but its birth mother(surrogate) who is persuaded by money, and threat of lawsuit, who would soon break all the ties and bonds between her and the child. All of these are ways in which children are degraded.
Read: Surrogacy Vis-À-Vis Surrogacy Regulation Bill, 2016
One is supposed to value and love a child. So, in these cases children are being used for the good of others and are sold to others and even are being hereditarily created to suit the needs and fitting of others. In situation like these children are seen as being lower value Compared to the normal human being and therefore are treated as a commodity. When there are options to choose the genetic traits and so forth, the expectations of parents affect the child. And the child after growing up might think that the parents were more interested in the genetic wholeness that they wanted so badly leading the child feeling unloved. The unborn child here in case of surrogacy is being treated as property because he/she was created only for the mere use of someone else in return for money. If the child doesn’t live up to parent’s expectations then the child may feel the parent would return him or her since it was sold to them. The agreement of surrogacy also affects the family of the surrogate if she has her own children as her children may feel that their mother(surrogate) might sell them too, and they also feel a loss of their missing sibling. So one can state that children are being affected by the acceptance of this type of behavior, commercial surrogacy, and they are not being valued, as they should, highly. They are being treated as means to make profit. There are denials from the proponents of commercial surrogacy that they engage in selling children as the payment was for the services of going through with the pregnancy so it would be impossible to sell something that belongs to you, that you helped create.
When economic norms are applied to women’s labor they violate their respect and consideration. There are three ways, first, which requires the surrogate mother to hold back whatever parental love she feels for the child; conversion of her labor into an alienated labor. Secondly, by manipulating and denying legitimacy to the surrogate mother’s evolving viewpoint on her own pregnancy; degrading herself in her own eyes. And lastly, by taking the advantage of the surrogate mother’s noncommercial motivations without offering anything but exchange demand in return; leaves surrogate mother open to exploitation. These problems arise due to commercialization of the labor of having children, which shows no respect and consideration for women’s labor, and this labor is not suitably regarded as a commodity. These problems can easily be understood by applying the normal emotions of bonding between surrogate mother and child during the gestational periods. There are many expectations of having a child, like to prepare by buying baby things and getting your home ready for a baby. So, one can say for sure that it is a wonderful thing for the mother to bond with her child. The industries or agencies providing with the facilities of commercial surrogacy doesn’t agree with this kind of thing, they follow a different process that is called the putting out system. Where they put out the father’s sperm as raw materials for production to the surrogate mother, and then engagement of production begins. She(surrogate) is checked on periodically by doctors and surrogate agencies to ensure that she doesn’t change her mind because of the love she’s’ been putting into her baby. Also in the contract that is between the surrogate mother and the intended father, the surrogate agrees not to bond with the fetus and because of this her labor is estranged. Whereby, the contract replaces a norm of parenthood to a norm of commercial production known as Commercial surrogacy which is degrading to the surrogate mother in every way possible.
Read: Juvenile deliquencies in Indian Society
In the agreement of surrogacy the surrogate has to suppress all her feelings towards the child she’s carrying for past nine months and the giving up her biological right so that the intended party can adopt the child. The surrogate industry in the business only suppresses, manipulates, and trivializes the women’s perspective on her own pregnancy as the biggest danger to the surrogate industry is the woman’s own perspective broadening on her pregnancy. And it helps them if the woman treats this as a perspective of a contract laborer. Because the surrogate industry’s job is to suppress the women, they have to find a way to accomplish that the women are therefore treated as an inanimate objects, having no emotions or feelings. While they also refuse to accept that whatever they’re doing is affecting the women’s labor emotionally. Surrogates also face psychological problems as at least 10% of women who give up their children are faced with problems that may lead to having to take therapy. And giving up their child after keeping it in her womb for nine months also puts a lot on the surrogate mother and she is so full of grief in the end. Some people who believe in commercial surrogacy would like there to be a law that enforces the surrogate mother to give up the baby to calm their nerves in the situation. And if this happens, and if market norms were imposed it would be looked on as merely an economic change. The commercial surrogacy industry also leaves a woman open for all kinds of exploitation. Which occurs, when the woman is given gift values(love, gratitude, and appreciation of others) and in exchange she has to give up her baby away and suppress the mother-child relationship. They have to look as if they cared and have the best interest of you at their minds. The surrogate agency looks out for their client and finding the best deal while no one looks out for the surrogate mother. So, it can be said that the agency will say or do anything to manipulate the woman to gain positive terms for them.
Commercial surrogacy involves issues related to law besides the ethical issues. When a surrogate mother has baby she is forced to give up that children whom she has learned to love and care for and that in it is degrading and harmful traffic in children, violates the dignity of women, and subjects both child and woman to a serious risk of exploitation. This is the very reason why surrogate contracts should not be enforced. This act should be illegal and the provisions set by surrogate agencies are blemished and they should be subject to criminal penalties.
For those who can’t have kids surrogacy is wonderful, but what about the children who already exist, waiting in adoption agencies for a good home? There are instances where race and prejudice interferes with the adoption process, which leaves kids no better off than they already are. Because of this, the practice of commercial surrogacy will proceed.
In adoption cases, the birth mother usually becomes pregnant unintentionally; therefore, public policy dictates that she will not be tempted to give up the child for financial considerations. Thus, it was asserted, the law does not allow her to make an irrevocable commitment until sometime after the child is born. In surrogate arrangements, however, the surrogate is not asked to make a decision while she is pregnant. It would be denigrating to women to assume that they are incapable of entering into a contract to carry and to deliver a child. Opponents stressed that the minority of jurisdictions that allow a mother the right to rescind her consent to adoption only allow it for a limited period of time after the birth, and only for reasons related to the best interests of the child.
Of course, society has an interest in satisfying the needs of childless couples. The interests of the father who wants to reproduce and raise his offspring and the interests of the wife who wants to raise her husband’s biological child are significant and constitutionally cognizable. It is bizarre, however, to focus on the reproductive interests of the couple without also noting that others, especially the so- called surrogate, have similar interests at stake. So the surrogates performing the surrogacy shouldn’t be bonded by the contract to deliver the baby no matter what. They should have an option of abortion till the last moment in case of any medical problem. As the mother can have a bond with her child in the time duration of nine months, she should even after giving birth to the baby have a final option on her part to either give up the baby or not for the consideration which was decided while entering into the agreement of surrogacy.
Read: DISENFRANCHISEMENT OF PRISONERS: JUSTIFIED OR NOT?
Proponents of the birth mother’s right to exercise the option to keep the child a reasonable time after the birth contended that it can be analogized to adoption proceedings where a mother cannot consent to the adoption before the child is born and for a specified period of time thereafter, which varies from state to state. It was argued that because of the bonding between mother and child that takes place during pregnancy and immediately after birth, the mother should have the right to keep the child if she wishes. The advocates of this position also pointed out that, in some jurisdictions, even after signing the consent to adoption, the birth mother has the right to rescind the consent before the final decree of adoption is entered. So the right thing to do would be that the surrogacy should be permitted but it shouldn’t be enforceable that once the contract is signed it’s absolute like the end of all.
[1]A quote by John Bunyan.
[2] Section 2(h), The Indian Contract Act, 1872.
[3] Section 23, The Indian Contract Act, 1872.
[4] Section 13, The Indian Contract Act, 1872.
[5] A quote by Elizabeth Anderson.
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