S Murlidharan

Surrogacy law or miscarriage of justice?

S. Murlidharan | Updated on March 12, 2018

There are concerns — real and hypothetical — that must be addressed by the Government through the proposed law, pending before Parliament, on surrogacy.

Brigham Young, leader of the Mormon Church in Utah — now a State of the US — must be turning in his grave to find infertile Americans and Europeans, among others, flocking to India to seek solace from Indian women.

In The Twenty-seventh Wife by Irving Wallace, he has gone on record to say that the justification for Mormonism, allowing a male to take 27 wives simultaneously, in an act of polygamy or plural marriage, was pure economics — simultaneous conception of so many women at the same time that adds immensely to population to work on farms and other places. He then went on to say why he, therefore, did not favour its reverse, polyandry.

The elevation to the surrogate capital of the world must be soothing to the Indian ego (compared with the belittling and distinctly uncomfortable appellation of being the diabetes capital of the world). But there are concerns — real and hypothetical — that must be addressed by the Indian government through the proposed law, pending before Parliament, on surrogacy.

There is considerable quibbling on the nature of the Indian law-in-the-making — would it be altruistic surrogacy or commercial surrogacy that would be promoted and countenanced?

Altruistic surrogacy is perhaps an oxymoron in the context of regulatory measures, given that no law is really needed if surrogacy were to be confined to altruistic purposes.

That foreigners are flocking India, especially Anand, the place which is also home to Amul that spearheaded the White Revolution, is a telling commentary on the economic and commercial aspects of surrogacy in India — cost has been the raison d'etre for India's broader leadership on the medical tourism front, of which surrogacy tourism is obviously a subset.

Surrogate mother

The merits and demerits of surrogate motherhood have been discussed many times over. This article seeks to examine only those aspects that have not received the kind of attention they should have.

There is a view that one need not be unduly worried about the health aspects of surrogacy inasmuch as the egg and sperm are those of the biological parents, with the surrogate mother only gestating the child.

This is not quite correct. While the child's DNA could be shaped by the egg and sperm, the surrogate mother would be passing on a part of her health, as it were, to the child congenitally — from the stage of conception.

Congenital diseases have nothing to do with the genes of the biological parents. The food she ingests, the way she lives, the vices, if any, she suffers from, the cleanliness of her surroundings, all have a bearing on the wellness of the child to be delivered.

To be sure, the grateful sponsors more often than not loosen their purse strings and do not scrimp on food and health expenditure of the carrier. But the welfare of the child also depends on hygiene and other lifestyle factors.

Indeed, the air she breathes and the food she eats have a bearing on the health of the child, which is why the medical fraternity harps on clean and healthy habits of pregnant and lactating mothers. And, talking of lactation, shouldn't the law compel the sponsoring parents, often in a tearing hurry to take the child back home, to allow the child to be with the carrier till such time it can be put on weaning food so that it can be brought up on a staple of mother's milk?

No less important is the phenomenon of foreign biological parents. The Indian Apex Court has ruled that the child delivered by an Indian surrogate mother would be the citizen of India. This poses problems for foreigners who would obviously want the child to acquire citizenship of their home country.

Commercial aspect

The short point is all the ramifications of the issue must be thought through and provided for in the law-in-the-making. Earning of foreign exchange should not be the only counter. While pleasing childless couples, we should also be worried about the welfare of Indian families, especially women offering their wombs.

The Bill before Parliament allows an Indian woman to bear five children — two born of her own egg and her husband's sperm in an act of domesticity, and three in her capacity as a carrier in an act of commerce. Why three? Already, there are reports that, enticed by money, women get ready for offering their wombs as early as three months after delivering. This could be ruinous to her health.

Besides, restricting this commercial act to once-in-a-woman's lifetime would democratically increase the opportunities for similar indigent women, given that surrogacy in India has more to do with overcoming poverty than anything else.

If blood donors can be prescribed a cooling-off period so that enough blood is replenished, surely no woman should be encouraged to gird up for the role of a carrier without ensuring a healthy break after the last delivery.

(The author is a Delhi-based chartered accountant.)

Published on April 25, 2012

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