Surrogacy : Fully Explained process and it’s policy in India

Surrogacy is an arrangement by which a woman carries a child for another couple. It is enabled by Assisted Reproductive Technologies processes. The literal meaning of the word ‘surrogate’ is ‘substitute’, ‘deputy’ or ‘replacement’. Hence a surrogate mother is often seen as a substitute mother.

There are primarily two types of surrogacy based on the genetic relationship of the surrogate with the child:

1. a) Traditional surrogacy: This is an arrangement in which, it involves naturally or artificially inseminating a surrogate with intended father’s sperm via IUI or IVF. With this method, the resulting child is genetically related to intended father and genetically related to the surrogate.
   b) Gestational surrogacy: This is an arrangement in which the surrogate is implanted with an embryo created by IVF. The resulting child is genetically unrelated to the surrogate. There are several sub-types of gestational surrogacy.

There are again two types of surrogacy based on the type of transaction involved:

1. a) Commercial surrogacy: This is an arrangement where the surrogates are financially compensated for the child which they carry to term as part of the surrogacy contract.
   b) Altruistic surrogacy: This is an arrangement where the surrogate decides to carry the baby to term as a token of love or out of sympathy. Here no monetary transaction is officially allowed.

In modern times, gestational commercial surrogacy is more prevalent than the other forms of surrogacy.

In a commercial surrogacy arrangement, there are generally four parties involved – the doctors; the commissioning couple; the surrogates and the agents. Among them, the couple and the surrogates are most vulnerable, as the couple wants a child and the surrogates undergo this procedure to get money to overcome their poverty. The relationship between the couple and the surrogates generally depends on the policy of the clinic. Some clinics allow transparent communication, weekly visits between the couple and surrogates; whereas others keep the entire details secret and both the parties do not know anything about each other.

The Surrogacy process and the policy

At the policy level, commercial surrogacy in India has undergone lot of changes. Commercial surrogacy became legalized in India in 2002. In 2015, the government imposed ban on commercial surrogacy by foreigners, in which foreigners were not allowed to avail this service in India. However, in 2016, the Parliament passed a Bill asking for a complete blanket ban on commercial surrogacy and allowing only altruistic surrogacy permissible under certain parameters. The Bill is not yet passed but has received a lot of criticism from different sections of the society.

Under this bill, homosexuals, single parents, and live in couples are also not entitled to surrogacy. Also, couples who already have children will not be allowed to go for surrogacy, though they would be free to adopt a child under a separate law. The bill allows surrogacy only for legally married couples after five years of marriage and with doctor’s certificate stating that they are medically unfit to reproduce. Women within the age group of 23 to 50 years and men between 26 to 55 years will be eligible to opt for surrogacy. To check commercial exploitation and middlemen, the surrogate mother can only be a close relative, like a sister or sister-in-law who is married and has at least one healthy biological child. A woman can be a surrogate only once in her lifetime.

At the ground level, the entire business of surrogacy is very murky, as everyone tries to exploit the other for their benefits. Since there are many avenues where transparency can be compromised while opting for surrogacy one must be aware of the possible issues. It is always better to choose the clinic which has a transparent relationship with the surrogate, where the commissioning couple can meet; interact and be in constant touch with the surrogate. There is also a hierarchy in communication, where the doctors are on the highest pedestal and the surrogates at the lowest. Instead of relying only on the agents or the doctors about the updates, one must make efforts to communicate and build a rapport with the surrogates. It helps both the parties – the commissioning couple and the surrogates to be on the same page and it becomes easier to accept the procedure which they have opted for. An attempt to inquire about the surrogate’s family, taking interest in asking about their daily lives, family issues, children also helps the surrogate to feel better and cared for in the entire medically invasive procedure, where they are not only drained out physically but emotionally too. The desperation to have a biological child must not be a reason to exploit another woman in unacceptable terms. Voluntary participation in the entire procedure must be encouraged for any of the stakeholders.

However with the constantly changing legal scenario of surrogacy in India, while opting for surrogacy (commercial or altruistic) one must be clear and aware of what are the legal permissibility of the procedure and other pros and cons. Awareness about the legal and ethical concerns can only make the commissioning couple stronger and prevent them from being exploited by other parties involved in the procedure. One must also be critical about the success rates which are projected by the clinics and not get swayed or hopeful on the basis of that. There is a conscious invisibility of the surrogates in the entire procedure, and one must be sensitive in recognizing their sacrifice. Most of them do not demand recognition as they are also scared of social stigma, but a bit of gratitude, care and concern help them to go through the artificial pregnancy a bit smoothly, at least mentally.

Author:

 Anu Gupta, Ph.D. Scholar, University of Hyderabad

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