Abstract

Surrogacy is the method of assisted reproduction that helps intended parents start families
when they otherwise could not.

In lay man’s term it is the practice by which a woman gives birth to a baby in order to give it
to someone who cannot have children due to many reasons like malformation of womb or the
couple being of the same sex.

With the societal norms that enforces the couples to believe in the importance of having a
baby for a happier life and to get away with the stigma that is attached with not having a
genetic offspring has given an exponential rise to surrogacy today.

This paper deals with all the criticism and raises fundamental issues regarding the nature of
personhood, attributes of human dignity and the fact that surrogacy leads to commoditization
of the child while lastly it leads to the exploitation of poor women in under developed
countries who sell their bodies for money.

There are various ethical issues that surrogacy deals with, to name some what if the surrogate
mother decides to keep the baby or demands to visit the child during the latter’s growing up
years or what if the surrogate and the spouse violate the abstentious clause.

The baby gammy case in 2014 gravely talks about the moral issues that surrogacy deals with,
an Australian couple abandoned a twin boy with his surrogate mother in Thailand when they
found out that the boy was suffering from down’s syndrome.

This paper will not just address the moral values attached with surrogacy but will also
highlight the condition of rural women who are persuaded in this gambit of surrogacy by
their husbands or the middlemen in order to earn easy money.

introduction

surrogacy is the method of assisted reproduction that helps intended parents start families
when they otherwise could not. In lay man’s term it is the practice by which a woman gives
birth to a baby in order to give it to someone who cannot have children due to many reasons
like malformation of womb or the couple being of the same sex.

A woman's body is constantly being exploited by the society in the form of prostitution. In
surrogacy there is a contract, whereby the woman agrees to bear child for someone who is
unable to do so. The end of both the acts is money. Surrogacy can be termed exploitative as it
is a priceless act; and for such they aren't even paid accurately. This article comments on the
antiquity of status of women in the past and how prostitution existed back then, along with
the development of the Surrogacy in India. The statistics of women getting involved in both
the occupation is escalating on the positive side of the graph. India has become a hub for Sex
Tourism as well as Medical Tourism. There are no specific Acts which regulate them.
However, Immoral Trafficking (Prevention) Act, 1956 controls prostitution in a limited
sense. The Surrogacy Regulation Bill is yet to be passed. Ambiguity whether Surrogacy is a
type of Positive Prostitution stems, as there is use of woman's body in return of money.
Procreation is the difference it serves. However, it would be vague to compare them both; as
there is no use of force in the latter and a surrogate can easily withdraw to serve, unlike a
prostitute.

When we search, in Wikipedia for, the meaning of a Woman it says a Female ‘human being'.
But how far has ‘the human' practically been applicable to a woman? People residing in the
modern era of the psychology and society would say to a greater extend but truth is beyond
imagination. The world has been a Patriarch since time immemorial, wherein the woman was
considered merely slaves or sex objects. They were a part of the property and were bought
and sold whenever the man wished. Many social reformers and feminists worked on changing
this perspective. Today, definitely many social evils have been eradicated; but the new forms
of profiteering have come up into the picture. The worst part is that there has been
exponential growth of exploitation of women throughout years, exploitation of her body
being the finest. The astonishing fact is that there has been consensual exploitation of her
body by the means of Prostitution and Surrogacy.

History

The condition of women in the ancient times i.e. Vedic times was not really worse as it is
today. ‘A great deal of time and energy has been wasted by Hinduism bashers, as correctly
opined by Sanjeev Newar in his book[1],to find the verses from various Hindu texts like
Ramayana, Mahabharata, Purana, Manu Smriti, etc. denigrating women.' The women are
greatly honoured in the Vedas and was considered as a deity who would bring prosperity and
wealth to a family. It profoundly cites that women should be well educated and should
complete their schooling before getting married and that she should be given dowry of
knowledge[2]by her parents. That the daughter shall have equal rights in the property of the
father as of the son.[3]The women should be encouraged to train themselves in an army and
that they should also participate in the wars.[4]All these verses precisely depict that a woman
was looked upon as a high spiritual, moral and powerful being. But as the time passed there
was metamorphism in the texts which gradually degraded the status of women in the society.

History of prostitution

The introduction of Manu Smriti by the King Manu was the perception of human society.
Through the inception of Varna system the Brahmins were placed on the high citadels
whereas the Sudras were the most oppressed one. Not only had the Brahmin male
discriminated with the Sudras, but also with the women. The women of the high class
societies were expected to manage the household affairs and to procreate and nurture the
child. Education was just a chimera. Manusmriti leaves no room of dignity of women. The
following are the verses that humiliates the women at ground level:

(i) It is the nature of women to seduce men in this world; for that reason the wise are never
unguarded in the company of females[5].

(ii) One should not marry women who has have reddish hair, redundant parts of the body
[such as six fingers], one who is often sick, one without hair or having excessive hair and one
who has red eyes.[6]

(iii) Wise men should marry only women who are free from bodily defects, with beautiful
names, grace/gait like an elephant, moderate hair on the head and body, soft limbs and small
teeth.[7]

(iv) Wise people should avoid sitting alone with one's mother, daughter or sister. Since carnal
desire is always strong, it can lead to temptation.[8]

The above mentioned verses are just a brevity of what Manusmriti contains[9]. It depicts how
a woman is only about her bodily appearance. It was believed that a woman who was
beautiful, charming and attractive could not only acquire a piece of land but also can conquer
castles and kingdoms and thus, it was advisable to a wise man to stay away from woman of
such virtue as she may be a lady of vice in disguise. It was only because of such ideology that
the role of women as Prostitutes came into picture.

Kautilya (4thCentury BCE), an eminent King-maker and Machiavelli of the west, in his
Arthashastra has a special mention of Prostitutes practice and hence the profession can be
regarded as one of the oldest profession. He, by all hooks and cooks, would achieve what he
aimed for. Tales speak of how prostitute aided him, who contained venom on her tongue, to
kill an emperor. Arthashastra categorized ganikas into three kinds:

(i)the ganika who practised within a state controlled establishment

(ii) the rupajivaor an independent who could practice prostitution outside the sphere of state
and
(iii) the pumsachalior the concubine.

The ganik as were a medium of adding up money to the economy of the state. High taxes
were charged from them but at the same time clusters of wealth was disposed for setting up
of brothels. The revenue generated from the brothels were a stable source of income of the
state. A prostitute in Kautilya's regime was of highbrow and therefore men liked spending
more time with prostitutes than their wives. The only drawback was the child born to a
prostitute was given no legal identity. Many legal safeguards were provided such as rape or
group rape on ganikawas considered crime and penalty was imposed on the wrongdoers. An
educated prostitute was positioned as King's advisor.

The 6th Century AD [10]paced into the Hindu religion then Devdasi system. The young girls,
mainly minors, in a deceitful manner, were compelled to marry the deity and to renounce rest
of her life in His service. In the Chola period (10thcentury A.D.) possession of Devdasi was
considered as a matter of pride. Higher the number of Devdasis, greater would be the prestige
in the society. However, due to the advent of Islamic rulers the Hindu temples were destroyed
and the Devdasis were left on last legs with nothing but to beg around the streets eventually
putting themselves on the market.[11]

In the colonial India viz. early 20thCentury, there was an influx of British prostitutes, through
the sea-ports, to appease the White men. It was expected that they would avoid intimating
with the Indian women. However, this was proved to be a ‘turn the table' manoeuvre, of the
Britishers, as the White women started engaging with the Indian males and this was seen as a
troublesome act; as the union would give rise to the mixed raced children.[12] During this
era, there existed smaller forms of Devdasi system and the women chiefly maintained
relations with the men of higher social status. To avoid further convergence of convoys into
Hindu women, the Devdasi system was prohibited by the British officials through IPC and
was made a punishable offense.[13]

History of surrogacy

Family is considered to be the nucleus of any society and it is born out of the sacred union of
heterogeneous being by the way of marriage. A classic definition of family, according to
anthropologist George Murdock," is a social group characterized by common residence,
economic cooperation, and reproduction. It includes adults of both sexes, at least two of
whom maintain a socially approved relationship, and one or more children, own or adopted,
of the sexually cohabiting adults."[14]By this definition it is apparent that the society expects
an offspring out of a marriage for continuance of their family name as well as to perform
one's funeral rights. But not everyone is blessed with a child of his own because of the
problems of infertility in either or both of the spouses.

In Manu smriti, the production of a son was a dire necessity. It says that through a son he
conquers the world, through son's son he obtains immortality but through his son's grandson
he gains the world of the sun.[15]Also a son delivers his father from hell called Put, he was
therefore called Putra.[16]When there was disability of any of the couple to produce a male
the following atrocious means had to be followed:

(i) On failure to produce offspring with her husband, she may obtain offspring by
cohabitation with her brother-in-law [devar] or with some other relative [sapinda] on her in-
law's side.[17]

(ii) In accordance with established law, the sister-in-law [bhabhi] must be clad in white
garments; with pure intent her brother-in-law [devar] will cohabitate with her until she
conceives.[18]

However, Manusmriti along with other Smritis such as Yajnavalkya, Kapila, Lohita, and
Angira & Ankara strongly

discuss about the law of adoption and inheritance of the adoption child. The Shastric Hindu
Law looked upon at Adoption as a sacramental act. The Smrtikaras suggested that only one
son could be adopted for the continuation of the family line and to offer oblations to the
deceased ancestors. The Dharmasastras deals in detail with the qualifications of the male
child to be taken in adoption. The adopted son is uprooted from his natural family and given
to the adoptive family as a natural son.[19]

Surrogacy was not scientifically possible in the ancient era as the technology was not
advanced back then, but one of the tales of Bhagvad Purana show how through the celestial
power of Gods baby Krishna was transferred from the womb of Devaki to the womb of
Yashomati; to protect Him from His cruel uncle Kans. This cannot precisely be referred as
the process of surrogacy but can slightly be associated with. Also,the first ever case of
traditional surrogacy is found in old testament Bible – Genesis, Chapters 16 and 30 ,the tale
of Abraham & Sarai and the tale of Rachel & Jacob wherein the maid acted as gestational
carrier, egg donor and bore children through their husband on the command of the infertile
wife for ensuring genetic connection with the husband. The first ever codified legislative
instrument on surrogacy is the Humamrabi's code of 18th century BC § 144 to § 146 states
that surrogacy as a recourse for an infertile wife to have an offspring.[20]

In the nineteenth and the twentieth centuries there was a rapid advancement in the field of
medical technology. Many inventions and experiments were carried out for tackling the
problems of childlessness among the couples. Finally, on 25thJune, 1978 Dr. Robert G.
Edwards[21]was successful in carrying an IVF[22]treatment and giving birth to the first test-
tube baby namedLouis Brown. For this, he was bestowed with Noble awards in the year
2010. Consequently, the first traditional surrogacy took place in the year 1980 wherein
$10,000was paid to the surrogate mother. The legal contract of surrogacy was drafted in the
year 1986 of Baby M which was related to commercial gestational surrogacy. The most
deliberated Indian surrogacy case was of Baby Yamada Manji v. UOI[23]which finally
legalized commercial surrogacy in India.

Present conditions and statistics.

Prostitution and surrogacy serves as a medium of livelihood not only for the poor and low
income groups but also sometimes for women who have been abandoned or separated by
their families due to various reasons. The uneducated and the unskilled women are left with
no other alternative then to plight for such occupation. According to World Bank Report of
2014, about 27 crores of Indians live in poverty i.e. 1 of every 5 Indian is a poor. India now
has a greater share of the world's poorest than it did thirty years ago. Then it was home to one
fifth of the world's poorest people, but today it's ignominious accounting for one-third.80% of
them are from the rural areas. Most of the money spent by the people of rural areas is on
food, fuel and electricity. Only 6% of the gross income is spent on education. Conservative
rural families do not reckon on educating the girl child. Birth of girl child, in the first place, is
considered as burden to the family. However, she is constrained into domestic activities and
is married as soon as she attains puberty; wherein the age of the groom is often neglected. In
the process of getting rid of the girl child, they intentionally or unintentionally are forced into
the market of Sex trafficking. Also, the traffickers, in a disguised manner of well-wishers,
quack about the job opportunities to the family and sculpt the ways in which they can score a
lump sum of money from the Metro cities. The family with a blind fold sends the girl off
board with the traffickers. Sometimes neither the girl returns nor does the money promised.

Commercial surrogacy.

Commercial Surrogacy serves as one of the Profit generating industries of India. For the poor,
it serves as an easy way of earning money within a short span of time. As majority of
customers are from the foreign countries, where surrogacy is prohibited, the income
generated is in dollars denoting huge monetary gains. A contract is made between the parties,
viz. the Intended parents and the surrogate, wherein a sum is assured for the delivery of baby
as well as for the services to be rendered during the pregnancy. Many of the Surrogacy
centres impersonate themselves as Legal IVF centres and carry out such operations.The
reasons why India has been emerging as the ‘Surrogacy capital of the world'[30]are,because
the women in India are less likely to get indulged into drugs, drinking or smokingi.e. they
maintain good health condition. India has been a country of cultural values where intake of
alcohol and smoking is considered unethical. The only women coddled are the fewer middle
class and mostly that of upper class women. The rural women are hardly into such activities.
Secondly, the Indians believe in marriage at an early age and therefore, the surrogates can
gestate at her early 20s, giving birth to a healthy child. Child marriage has been practiced in
India since the time immemorial. Although there has been aged limitation imposed, the
people in the rural areas tend to get their children married soon after they attain pubic age.
Lastly, the costs of conducting surrogacy in India are comparatively less than those charged
in other countries. The amount charged for performing surrogacy is less than one tenth of
what it is charged in the US and the UK. Also, the government ensures effortless providence
of birth certificate as well as visa for the baby

.The Confederation of Indian Industry predicts now that the Surrogacy industry generates
US$2·3 billion annually. Estimates are hard to come by, but more than 25,000 children are
now thought to be born to surrogates in India; 50% of these are from the West.[31]This
means the market of wombs are mostly proliferated by the people of the foreign nationals.
The number of medical tourists into India increased from 150,000 in 2005 to 450,000 in
2008, which also saw a rise in fertility tourism, the Centre for Social Research (CSR) report
said.A 2013 survey by the CSR along with the Women and Child Development (WCD)
Ministry showed 68% of surrogate mothers in Delhi and 78% in Mumbai, were housemaids
by profession.[32]This connotes that the women before entering into surrogacy were working
at different places just for the sake of money and the business of surrogacy turned out to be
expedition of it. The income of these housemaids inflated from approximately ₹18,000 per
annum to ₹500,000 per annum (or to say, nine months). Therefore, surrogacy turned into a
channel for the low income groups not only to finance their family and educate their children,
but also to improve their standard of living.

Although there is a Surrogacy Regulation Bill, 2016 formulated but it has not been passed
into the Act. Human rights Activist Pinki Virani, who maintains that Commercial Surrogacy
is a Worst kind of patriarchy, when asked if the bill should be subsumed in Art Bill, posing as
pro-wan choice said, "It's a little late for that. The Art Bill floating around is not in the
interest of the patients, mostly women. In the name of an innocent unborn, it is too skewed in
favour of international big pharms which plays puppet-master of the flourishing industry,
which makes women, and men, feel incomplete if they do not, or cannot, have children. A
fresh Art Bill have to be drafted and that will take a long time, as will its passing as law.”[33]

Ethical and Moral issues related to Surrogacy

1. Commoditization of child- The international court of justice and various other such
bodies reflects the notion that dignity prohibits commoditization of the human body
independently of the will of the individual whose commoditization is at the issue. The
process of surrogacy gives potential to exploit the human body in the market and
places the reproductive capacity of the women in market place and devalues the
whole process of bearing a child by renting the womb.
2. Exploitation of poor women- lack of regulation in this field has resulted to
exploitation of the surrogates, the poor women coming from lower strata of the
society are generally pushed into the gambit of surrogacy by their husbands to earn
money. Their lack of legal and medical knowledge and the fact they are being offered
sums of money which to them seems huge, make it difficult for the surrogates to have
equal bargaining power it also makes women a movable property, not just this the
surrogate mother invariably gets attached to the child inside her womb but because
surrogacy is a business, she needs to give away the child.
3. Abandoning the child- There are a lot of cases where in the parents of a surrogate
child abandon the child if it has any mental or physical disability, in a classic example
of- “Baby Gammy case” in 2014 where in the surrogated child was found with
down’s syndrome, the couple immediately abandoned the child. Such cases are seen
very often in our surrounding because the child is a product of surrogacy there is less
amount of attachment for the child by the surrogated parents.
4. Role of middlemen- Due to the lack legal knowledge, both the parties remain happy
in their bubble, the poor mother who lends her womb and gets the needed money or
the infertile couple who gets their long desired biologically related baby, but in every
scenario it’s these two parties that get exploited and the profit is generally made by
the middle men or the middle agency who has a hold on both the parties mentioned
above.

Why is surrogacy on a rise?

India opened up commercial surrogacy in 2002 and since then surrogacy in India is on a rapid
rise not just this the low cost technology, skilled doctors, scant bureaucracy and a
plentiful supply of surrogates have made India a preferred place for surrogacy in the
international level.
Conclusion

It is sad to see the state that people are engaging in the practice of surrogacy when nearly 12
million children in India are orphans, if the adoption laws in India are changed and made
more easy then probably the number of orphans will decrease and bring the rates of surrogacy
down.