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“Grieving mother uses unmarried dead son’s sperm to give birth to grandchildren.” Several months back, this was one of the most controversial topics in the media. The incident has stirred the ‘Ethical concepts’ in the minds of many. In the Indian context, where health indicators are poor, the issue of ethics becomes more complex and requires a subtle understanding and appreciation of the context. Medical ethics is a system of moral principles that apply values to the practice of clinical medicine and in scientific research. In India, one of the main areas where the ethical issues persist is Surrogacy.

Not all the parents are lucky to be blessed with having children. In such cases, people usually try other methods. Some parents adopt, while others take womb for rent, which otherwise known as “surrogacy”. Surrogacy is banned in some countries like Japan, Italy, France, Germany etc. Commercial surrogacy in India was legalized in 2002. Since then, India is one of the international hubs of surrogacy. A study conducted by UN in 2012 states that the surrogacy business in India has an economy of $400 million a year, with over 3,000 fertility clinics across India. Each year, couples from abroad are attracted to India by so-called surrogacy agencies because the cost of the whole procedure in India is as less as one-third of what it is in the United States and United Kingdom (10-20 lakhs). But now that Indian government has proposed a bill to ban commercial surrogacy, only Altruistic surrogacy, where a surrogate mother agrees to gestate a child for intended parents without being compensated monetarily in any way exist.

Surrogacy and Ethics

The most common ethics behind the commercial surrogacy is that it helps those women who are not naturally capable of conceiving. But there exist arguments related to surrogacy. Following are some of the ethical and legal issues as to commercial surrogacy.

  1. Access to Surrogacy

Conventionally, Surrogacy was considered as the last option for the married infertile couples. It became a controversial issue when people, other than the married couple like, divorced, widowed, single, same-sex couples, aged, disabled who are interested to have a child started opting surrogacy to have a child. This would adversely affect the social structure, meaning of family, institution of marriage and it will affect the social norms, morals, and ethics in society. The use of surrogacy by aged and disabled persons will raise the issues of maintenance and welfare of the child. The possibility of such incidents makes it necessary to determine the criteria regarding the use of surrogacy by individuals other than married infertile couples.

  1. Harm to Surrogate Mother

Consider the women who act as surrogate mothers. What may be the reason for them to undertake such a responsibility? Poverty or other economic necessity! The procedure of surrogacy may cause harm to the health of the surrogate mother. Hence, an issue of liability for the harm caused or suffered by the surrogate mother arises. If there is no medical negligence on the part of the doctors and other paramedical staff, it would be difficult to fix the liability and thereby indemnify the loss suffered by the surrogate mother.

  1. The validity of Surrogacy Contracts

Criticism arises in India regarding the surrogacy contracts since some people believe that using a womb of another woman to beget a child is like lending a womb and selling a child. It is to be noted that a contract opposed to public policy is a void contract according to the Indian Contract Act, 1872. Thus the legality of surrogate contracts is uncertain.

  1. The interest of the Child

The process of surrogacy involves in-vitro fertilization, which usually results in the birth of triplets and more. This may harm the interest of the child, as the commissioning parents may not be in a position to look after the number of children born against their wish. Surrogacy involves the participation of three or four or five adults. So it is difficult to determine the parentage of the child.

  1. Surrogacy Degrades the Dignity of Woman

Surrogacy involves the use of a woman’s body for producing a baby which is handed over to the ‘legal’ parents. So, during the term of pregnancy, a surrogate mother has no rights to take any decision that may harm the child. Also, natural mother-child bond is either absent or suppressed. The critics also argue that the women’s body is reduced to being an incubator or breeder machines and thus it degrades the dignity of women.

  1. Child’s Right to Know his Origin

According to the law, a child has the rights to know its origin. This means that the authorities have to maintain proper records pertaining to the origin of a child. It is argued that once the child knows about the history of his or her birth, the child may go back to the genetic mother or surrogate mother as the case may be. It may also affect the child psychologically and it can cause mental harm to the surrogate mother as well as commissioning parents. However, there is no specific law which regulates the disclosure of genetic information to the child in India.

  1. Wastage of Embryo

The process of surrogacy, which involves in vitro fertilization might need repeated attempts and trials so as to ensure success. Thus it involves wastage of embryo, eggs, and semen. It is argued that the life begins at conception and hence this wastage of embryos is similar to murder.

Misuse of Surrogacy

Many people have misused the surrogacy option in India. Following are some incidents where the surrogacy has been misused.

  1. An Elderly couple opted for surrogacy and became parents of twins

An elderly couple from Rajkot became biological parents to twins via surrogacy. The 58-year-old ‘mother’ suffers from heart problems, obesity, diabetes and blood pressure and the father is 63 years old. So how would they take care of those kids after 10 years??

  1. A woman uses her unmarried dead son’s sperm to relive legacy in surrogate twins

A 49-year-old lady used her unmarried son’s sperm for surrogacy to relive legacy. Since she was found unfit for surrogacy, she sought the help of a 35-year-old relative. But, using a dead son’s sperm just for sustaining the legacy? What would be the future of that children? Who’ll be his father and mother?

  1. Single dad celebrities opt for surrogacy.

Karan Johar and Tusshar Kapoor are two of the famous personalities of the Bollywood. They both are unmarried but opted for surrogacy for begetting kids. But being a single parent and celebrity, how would they reveal the identity of the ‘biological mothers’ to the kids when the time comes?

There are many other options for the single parents and such people who have a clear idea on how that surrogate ‘child’s future will be’. There are nearly 20 million orphan kids in our country. They can adopt them instead.

Amidst all these ethical issues, when the government proposed a bill to ban commercial surrogacy, and also to restrict the altruistic surrogacy only for the infertile married couples who were unable to conceive for 5 years after marriage, the decision has created a stir among the doctors and other people who were in need of a child. Some support the ban, while others point out that commercial surrogacy is an economic help for the poor!


Source: 1.
3. Contentious Issues in Surrogacy: Legal and Ethical Perspectives in India, Christ university LawJournal, 1, 1(2012), 117- 126