Wednesday, December 16, 2009

Supreme Court India enters surrogacy debate

With "fertility tourism" fast becoming a reality, the Supreme Court on Tuesday stepped in to examine if surrogate children of foreign nationals are treated as commodities.

“Do we treat children born out of surrogacy as a commodity? What do the Indian mothers receive for carrying the baby? Now in society we calculate everything by money,” a Bench of Justices G S Singhvi and A K Ganguly observed.

The court will also look into whether foreign couples entering into surrogacy agreements in India treat Indian citizenship as a means to get passports for surrogate babies to enable their transit abroad.

The Bench took exception to a Law Commission report which described surrogacy as an “industry”. “With all due respect to the Law Commission, how can they call something with regard to children as an industry?” the court remarked.

Surrogacy was legalised in 2002. But the conditions of surrogacy arrangements are governed by contracts among the parties involved. The contract usually details the terms of consent of the surrogate mother, agreement of her husband and other family members, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying the child to full term, willingness to hand over the child born to the commissioning parent(s), etc. A surrogacy operation cost between Rs 1.5 lakh and Rs 10 lakh.

In 2008, commercial surrogacy got a fillip when the Supreme Court allowed Manji or Baby M, conceived from the sperm of a Japanese man and the eggs of an unknown Indian woman with the intervention of a fertility clinic at Anand in Gujarat, to return to Japan.

The apex court is now hearing a petition filed by German couple Jan Balaz and Susane Lohle who want Indian citizenship for their surrogate twins born of a Gujarati woman. The couple have argued that Indian citizenship would help the babies get visas to travel to Germany, which does not recognise surrogacy.

The court said the babies could end up “stateless” if they were denied entry into Germany. “The children will go only after getting an assurance from a competent German authority that they will get proper citizenship in that country,” the Bench said.

Opposing the couple’s plea, Solicitor General of India Gopal Subramanium said Indian citizenship should not be used as a “step of temporary nature for a child, or for that matter any person, to get acceptance in another country”.

“How can law create a citizenship for the purpose of transit?” asked Subramanium.

Subramanium criticised the German couple for having entered into a surrogacy agreement without a thought for the fact that the laws of their country did not accept surrogacy.

He said the government had some doubts about the intentions of foreign nationals who opted for surrogacy agreements in India.

“There is no difficulty if the persons are Indian, but when it comes to foreign nationals, we have to consider many social dimensions, like that of exploitation of these children. In the end, we have to ask if this is a country where people are going to enter a contract to buy or sell children,” Subramanium submitted.

The court agreed with Subramanium that in the absence of a specific legislation or rules to govern the conditions of surrogacy, the judiciary should step in with more safeguards, especially in cases of agreements with foreign nationals.

The court has scheduled the case for hearing on December 17, when the various issues on surrogacy will be framed for hearing.

Amani's morning piss-off.

I get really annoyed when people writing about surrogacy, not just in India, but worldwide refer to "surrogate babies". The babies are not surrogates, they are born through surrogacy. The word surrogate means "substitute". It is the woman who carries the baby that acts as the substitute for the woman who cannot. The baby is not a substitute.

I get further pissed off when people bleat on about babies born through surrogacy being treated as commodities. It is the process that is the commodity, not the baby. We are not buying babies and the doctors are not selling babies, we are buying services, and the doctors are selling services. How is this any different to a woman who becomes pregnant in the "natural" way, who buys the services of medical professionals in order to have her baby? If she decides to give birth in a private hospital, she purchases the services of her OBGYN, nursing staff, a private room and other goods and services required for her to give birth. Are these not commodities? Because she is paying for these services does this then mean she is buying her baby, or that her medical team are selling the baby to her? With surrogacy, there is just one more step in the process to have a baby, the services of a woman willing to carry the baby.

The word "exploitation" is often used in arguments against surrogacy. "Exploitation" means "to use especially for profit". Perhaps this could be true in cases where the surrogate mother is forced into surrogacy, and I know of no cases where this has happened with any of the reputable surrogacy clinics in India whose services we purchase. To insinuate there is exploitation of children born through surrogacy is illogical. IPs are not "exploiting", that is "using the babies for profit". We make no profit from the birth of our babies. Our service providers make profit by selling their services, as they should. By pure definition of the the word, they are "exploiting" for profit, they do make money on the birth of a baby. As do doctors the world over, every day, delivering babies in any country for any amount of money.

Money is a fact of life, we pay for services we require. If we accept that we are exploiting children born through surrogacy, we must also accept we are exploiting those who provide any service for anything we purchase, which includes medical care, eduction, housing, transportation and the list goes on.

Why is it that when it comes to surrogacy, the word exploitation, which infers babies born through surrogacy are in some way "used" or perhaps robbed in ways babies born to a mother who carries them for herself are not?

Getting off my soapbox now : ))


NWGirl said...

Totally agree. Well said!!

antusero said...

We are talking about the foundations of capitalism. The globalised hypocresie want we, the intended parents, feel guilties. But the origins of injustice are concealed. Thanks for your blo, Amani, from (almost) Africa.

Johnny and Darren said...

A very interesting article and, as International IPs continue travelling to India for the purpose of surrogacy, the government there will undoubtedly start to place pressure on the clinics offering this service to abide by certain guidelines. As many do now.

I do worry about the laws changing (and not for the better) for same sex couples. India really is the only option Darren and I could look at given the financial commitment involved.

I have to agree though, that the German couple mentioned in the article should have placed much more thought into the laws of their own country prior to undergoing surrogacy in India.

I agree with your sentiments M relating to the ‘exploitation’ of our child's surrogate. How is it we are exploiting people when this person is willing to carry our child for us, has received legal advice about the process and signs a legal contract agreeing to the same? It’s not like we are travelling to the slums of India and plucking the first woman we meet off the street and waving some $$$ in front of her.

It frustrates me beyond belief how exploitation is only ever mentioned when it comes to surrogacy in India and not the USA or other developed countries.

Thanks for sharing this article with us.

Mike and Mike said...

A very well thought out soapbox. Thank you, you succinctly shot down many of the arguments used against surrogacy.

Mike B. made an observation early on when we were doing this that the only time surrogacy seems to raise ire and rancor is when mentioned in context of India. He noted that you don't get the same reaction when surrogacy is mentioned in the USA. But that's another long post.

Anonymous said...

German or french couples like us have no choice if they want to become parents. The truth is that These consulates have absolutely no rights to make all this mess and to go in the private life of people. As a french i respect french law in france (others don't, and do illegal surrogacy in france), and i respect Indian laws in India. So where is the problem ???

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