ABSTRACT
The aim of this research paper is to find out the meaning of the term surrogacy, issues rose as to why surrogacy is taking place and how India has become a surrogacy hub in 2015. Finally the reasons and the solution of how the surrogacy should be banned with a reason that it has several negative impacts than the positive ones and also that there is another better option for a woman who cannot procreate a child. The other option is adoption which is of great significance in the Indian Society that will balance the population and the resources and also that it may make the life fruitful of both the child and the parents. Parliament who makes the law is the supreme authority but the law is made for the citizen of India, for their welfare and which favors the public policy. This paper will mainly focus on the positive and negative impacts of surrogacy bill and will give a reasonable ground as to why adoption should be chosen instead of surrogacy and also the need for modernization will be of great concern in the paper. Some legal aspects have been also looked into with respect to the rights of the citizens and also securing the rights of surrogate as well as child. If India is banning commercial surrogacy an only legalizing altruistic surrogacy, there must be a great reason to it. It mainly states that Parliament while enacting any law also has to consider the fact that no technology or advancement should be brought in India which suppresses one or the other section of the society and it has to check the balance between all the sections of society. There is a great need to change our traditional mentality to a modern one which is reasonably valid and does not affect anyone. Surrogacy is not the only solution for a couple who cannot have a child but there is another option which is better and reasonable.
SURROGACY
Surrogacy can categorically be divided into two types which are commercial surrogacy and altruistic surrogacy. Surrogacy in India can be seen in three different perspectives legally, ethically, socially and all of the three have different impact with respect to individual. Though in 2002, surrogacy has been legalized in India but nowhere in the law, the word “surrogate has been legally defined. The first question that should be put forward is the explanation of the term “surrogate”. In ordinary language, the word denotes, giving birth to a child for a women who is incapable of procreating it. Prior to 2015, India was considered as a “surrogacy hub” but in 2015, surrogacy was banned and in 2016, a bill has been passed in order to ban commercial surrogacy. By passing the bill Indians will be prevent from the exploitation. The debate which is still going on about the resultant of banning with respect to the violation of fundamental right and other rights of women and children will not be of much value if we stop focusing on the question, “why surrogacy is needed?” there are number of countries that legalize surrogacy and number of countries that bans it. Considerable number of countries is there that only ban altruistic surrogacy. We as a country have borrowed various features of our Indian Constitution for the other constitution of the country but still we call it India as a federal Constitution with centralizing tendency.
If India is banning commercial surrogacy an only legalizing altruistic surrogacy, there must be a great reason to it. The bill highlight the point the woman can be a surrogate mother only once. This is a very important aspect because it will not affect the health of a woman much and will be able to learn her livelihood. The bill aims at Desist illegal agencies aimed at promoting commercial surrogacy .and will halt trading of women thus protecting the right to life and personal liberty under article 21. In surrogacy the poor woman in case becomes a surrogate mother has to face a problem regarding carrying a child in her womb for nine months and no financial support is being given by the family members or the couple. Banning surrogacy will also prevent illegal activity In India because bargaining takes place between the couple and the surrogate mother
Surrogacy bill has been cleared by the union cabinet which bans commercial surrogacy in India. The term surrogacy is not entirely banned in India as it legalizes altruistic surrogacy with certain conditions as may be prescribed by the bill. Large population in India are emphasizing on the violation of their certain fundamental rights guaranteed by the Indian Constitution. The fundamental rights can be invoked against the state and so the state has the power to impose reasonable restriction on an individual’s fundamental right. The term “reasonable” has a great going with respect to the violation of fundamental rights as it protects an individual from being punished. Though in general view, banning on commercial view is the violation of article 14 and 21 of the Indian Constitution but the other side is restricting the ban on commercial surrogacy will lead to the violation of article 23 of the Indian Constitution, 1949 which states about the “Right against exploitation”. These articles are given in the Constitution with an exception that reasonable restrictions can be imposed on the same.
Surrogacy is only occurring because a mother though surrogate procreates a child who has a blood relation with his/her parent. Yes “blood relation” has a great going for the Indian family now also. India got independence and now we are living in 21st century but we are standing still following ever customs, views, Traditions, Thinking. All these are to the extent necessary but when these customs, views, Traditions starts overriding the practicality that exists in the society, it is of no use. The mindset of Indian citizen is stick to only one word- log kya kahenge but that’s not something that should be focused upon in 21st century also where India is developing at such a rapid pace. The only mindset of the people and the burden of the society that they unnecessarily take on their shoulder pressurize them to have a surrogacy. There are other alternatives also through which a couple can have a child and a child can have a parent.
We not only should see to the couple point of view who cannot procreate a child but also from the side of mother or so called surrogate mother who have to give the child to someone else. A mother is the only human being in the whole world whose love is unconditional towards her child. A woman when becomes mother her hormones changes into maternal love and she gets too attached with her child that she cannot even see a single tears in his/ her eyes. A woman becomes a surrogate mother mostly in cases where she is in necessity of money. That does not signify that she don’t love the child which she is having in her womb for almost nine months but it is only her condition that leads her to do the same. Procreating a child has a great impact on woman’s body. Their body reacts to many things, disfigurement, hormonal changes etc.
Procreating a child in some other womb is known as rental of womb and after giving birth to a child surrogate mother give that child to someone else in consideration of certain amount of money which is indirectly termed as selling of human flesh in turn to be called as human trafficking which is an offence. It is same offence as we buy and sell kidneys. If the practice of surrogacy will continue then there would be a very negative impact in the society in regards with the respect of emotions and feelings of other people in the society. The emotions of the personal body and the respect of the women’s body for procreating a child will be effected and there can also be a disturbance in the feelings of mother –child relationship.
A large population from all over the world visit India so as to facilitate the commercial surrogacy. Though there is a positive impact of it but a negative too. It allows the couple to be borne with a child which for them will be the blessings but the negative side of it over powers the positive. It sometimes creates a misfortune for the child because there may be partial feelings between the surrogate child and their own child. In Indian society, a surrogate child though accepted by the couple may not easily be accepted by the other members of the family. In school the child has to deal with so many issues which may not only affect his/her academics but also have an antipathetic impact on his physical as well as mental status.
It is a relevant factor to be considered that how much population of India favors surrogacy. Because the parliament who makes the law is the supreme authority but the law is made for the citizen of India, for their welfare and which favors the public policy. The term public policy creates a barrier on various laws that comes into force but later struck down by the courts in cases they are against public policy. Indian society consists of two views, one having a traditional view and one of a modern and realistic view. The law should be made in accordance with the balancing of both the society. Mostly there are certain masses of people that favor surrogacy some of them are: working women models, actresses etc. these section of the society are in such a field that they cannot afford to have any negative impact on their body and disfigurement, being the instant change in the body is one of the main reason that these women go for surrogacy.
If we look it in other perspective, many people think that they should go for surrogacy because of the blood relation that they desire to have with their child. Blood relations are still of a great concern for the Indian society but because of the earlier view that they are the child who will make forward the family’s dynasty. Blood relation in no way going with modern Indian Society because there is a need to modernize ourselves. Traditionally it is believed that the blood child will have a traits of parents and other family members and he/she would value their ethics and morals but if we consider this fact on a practical ground, even Mahabharata is a witness that Lord Krishna lived with his foster mother and he has taken care of his parents from the core of his heart another example is Shravana who was devoted towards his parents. On the other hand, Parasuram beheaded his mother on the order of his father on the assurance of his resurrection is an example where the blood child killed his own parents. So, it is not a blood child who takes care but adopted child also because he is also born from a woman who and whose family contains some ethics and morals.
When there is a surrogacy takes place, the rights of the surrogate mother as well as of child is a gamble where one can win or lose which is unpredictable. The risk is with respect to the security and safeguarding of the women. Because technically speaking, the couple who goes to women to have a child only approaches her to fulfill his own needs, to make their life fruitful or to fulfill that one missing element of their life, but the women is selfless who agrees to be a surrogate mother and for that matter, no one considers that women. There is a lot of instances where a woman agrees to give birth to a child for some other person and in a meanwhile some misfortune or an accident occurs which is unexpected. That time no one cares about her condition, neither mentally or physically. The couple becomes so selfish that in order to make their life glowing, they forgets to consider that person who supported them to make a happy life and they goes to some other women. The rights and the security of those women is nowhere standing. Likewise the chain of surrogacy made it a commercial transaction which has ruined all the emotions of children, men, and women or of a society as a whole.
If we talk about India, more people are there to arise the issue, although unless there is an issue or a problem, no one can be able to find its solution but the most important element of problem is its solution of which very few people talk about. Criticizing any issue is very easy but talking about it in order to reach to a particular conclusion is not n easy task. The need to ban surrogacy has been supported by large sects of people and thus a bill has been passed which may or may not become an act.
In Hindu law, where only monogamy is permitted can be a reasonable ground for a couple to have a child with the help of surrogate mother and hence they support the surrogacy but in case of Muslim law, where four marriage is allowed, the parliament need to rethink the fact that why a Muslim will go to have a child by the help of surrogate mother if he already have four wives where if one cannot procreate a child, the other can have the same. India now a days have been advanced so much that there is also a concept of test tubes baby where the sperm and an ovary is fertilized outside and then put into a woman’s womb but we also need to look that it is legal for the reason that there is no such exploitation of anyone and no third party is being involved in this practice and hence not been misused. With the advancement of technology, Parliament while enacting any law also has to consider the fact that no technology or advancement should be brought in India which suppress one or the other section of the society and it has to check the balance between all the sections of society.
There is a great need to change our traditional mentality to a modern one which is reasonably valid and does not affect anyone. Surrogacy is not the only solution for a couple who cannot have a child or in other way it is not the only key to open the door for a woman who cannot procreate a child but there is another option which is better and reasonable too, but there is an option of adopting a child for the betterment of both, couple as well as an orphan child. We need to understand the very practical fact that adoption comparing both the available options if we pick up the option of surrogacy, we need to re think that if surrogacy will be available then the least percentage of the person would go for the second option that is, adoption which concludes that “those who do not have a child can have them, but those child who do not have parents, what about them, from where they can have parents!. Surrogacy can be seen in different perspective, it has negative as well as positive implications that are the reason why there is a heated debate on the surrogacy ban because a large section of the society favors the same awhile the other section are against it. From last several years it has not been cleared that surrogacy should be banned or not or what are the implications that need to be looked into. This issue is not something which is related to law but different perspectives are involved into it like ethical, moral, social and that is the reason why there is a long period of time that has been taken by the parliament to decide on this particular issue.
The aim to ban the commercial surrogacy is woman empowerment and protection of fundamental right available to the citizen under article 21 of the Constitution which states about the right to life and personal liberty. Right to life does not only include right to live but a life with dignity and women should have a proper status in order to be able to live a life of dignity. Women are the victims of exploitation most importantly poor who have to rent their womb to be able to survive. Exploitation creates the blunder in the society because it is largely unacceptable. It not only affects present scenario of woman but also the status of the coming generation with respect to women. It’s not only the woman who is getting affected because of the surrogacy but also the child born out of surrogate mother. Sometimes the child does not get that love and care which the surrogate mother expects her child to get from the child’s parents and sometimes the couple after the child is born refuses to take a child with them like in Manjhi’s case and this is where the most horrible exploitation of woman takes place. If the woman is single and in case the couple refuses to take the child with them, there is no option left for the woman to take care of the child herself alone and where she agreed to be a surrogate mother for the sake of her livelihood then it’s very difficult for her to take care of the child in such a poor condition and as a result she was being exploited by the couple. Exploitation of woman sometimes also takes place in a way that while renting her womb to any couple for whatever the reason may be, couples if have a backward mentality sometimes go for Pre- natal diagnostic techniques in order to make out the sex of a child with the intent of killing the child the sex is female which is again infringing Article 14 of the Constitution which states about the Right to equality. Surrogacy bill has been passed and a proper analysis should be done before it becomes an act because though it takes a lot of time to make any law and acts but once it has been enacted, it’s very much difficult to struck down the same or make any amendments. If commercial surrogacy will be banned and altruistic surrogacy will be legalized then the implication on the same would be that it will be infringing the right of women under Article 14 of the constitution which states about the right to equality because the bill bars the widows, single woman and homosexuals from being a surrogate mother. The fundamental rights cannot be taken from the citizen of India as it is inviolable and guaranteed by the Constitution of India. Recently, Government told the Supreme Court that there should be no commercial surrogacy unless there are a needy people but if we look this issue on a practical ground, how can we segregate needy persons from non one. Every person will come to have a surrogacy by claiming them to be a needy one. If a reason been given that the surrogacy should be legalized so the poor woman can earn their livelihood, then this is no ground because it is not only the surrogacy through which livelihood can be earned but there is a lot other means to earn the money for the same. It has been said that men may die or migrate but the law and the society continues to exist and increase which refers that the population will go on increasing and in order to check the balance between the population and the resources which are scaring day by day, adoption will be the better option rather than surrogacy which results in increasing the population. The need is to read between the lines in order to reach to a definite conclusion.
By: Samridhi Agarwal
