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HomeArticlesA Reflection on Surrogacy in the context of the Surrogacy Regulation Bill 2016

A Reflection on Surrogacy in the context of the Surrogacy Regulation Bill 2016

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Published: Wednesday, 26 October 2016

The debate over surrogacy started in India in 2008 when the two-week old baby Manji Yamada was left unwanted due to the divorce of the commissioning parents in Japan. After the divorce, the Japanese mother refused to accept the baby from the Indian surrogate mother. In the context of a long legal battle in this case, the Gujarat High Court stated that there is 'extreme urgency to push through legislation' which addresses such issues.

In 2002 India became the first country to legalize commercial surrogacy and by 2012 India had become the surrogacy capital of the world. Surrogacy tourism became many million dollar business. The Surrogacy Regulation Bill 2016 cleared by Union cabinet of India on August 24th, 2016 and waiting for green signal from the next session of the parliament is aiming at a revolutionary change to this practice of renting a womb for money.  The bill bans commercial surrogacy in India.  It bars foreigners, homosexual couples, people in live-in relationship and single individuals from seeking the service of surrogate mothers.  According to the bill, only childless, straight Indian couples married for a minimum of five years are eligible for surrogacy.  Those who have biological or adopted children are not eligible to commission babies through surrogacy. Eligible couples can turn to close relatives for altruistic surrogacy. The bill also mandates that the women who serve as surrogate mothers can do so only once. If at least one of the legally wedded couple has been proven to have fertility related issues, the couple can opt to have children through surrogacy.

Procreative technologies promise to help couples having fertility problems to fulfill their desire to bear and nurture their own children. A blind acceptance of all   their approaches and procedures is not advisable. For example, artificial insemination that uses the sperm of the actual husband is acceptable whereas artificial insemination which uses sperm from a third party donor is not acceptable to the Orthodox Churches. Thus in Vitro Fertilization (IVF) is acceptable conditionally. And generally the Orthodox Christian Churches maintain a negative attitude towards surrogacy. The use of Surrogate wombs to provide offspring for otherwise childless couples is considered as a violation of the integrity and sacred nature of a marital union.  Influence of the mother on the child in its prenatal stage is tremendous.  There is a huge difference between the influence of a surrogate mother who carries a fetus in her womb just for money and an actual mother who grows it in her own womb primarily out of her genuine love. Surrogacy also leads to the commoditization of women who rend their wombs.  Such women are treated as incubators in surrogacy.  Due to the temptation to rejoice without any sacrifice, rich people may outsource pregnancy to poor women to avoid the burden of carrying and labor pain. We know the Indian celebrities who had a child at least by way of surrogacy. Consequently, in a way, the rights of the child to be born in and of its natural family is also violated. 

It is desirable to encourage couples with fertility issues to consider adoption as an alternative.  Giving life to a child already born but marginalized is a more humane act. There is no doubt that when couples receive and raise the adopted children with love and proper care, those children become the parents' “own” children.  More than the genetic makeup, it is shared love, affection, and spiritual experience that decide the quality of the bond between parent and child.  It is essential to be sensitive to the many children eagerly waiting to be adopted especially in Indian context.

Even if the surrogacy Regulation Bill 2016 does not uphold such an Orthodox ethical view, it tames and regulates surrogacy to a considerable extent.  The bill aims to prevent women especially those in rural and tribal areas from exploitation.  There are many who debate against this bill by highlighting the right to life of citizens which includes the right to reproductive autonomy. They may argue against the right of the State to decide the modes of parenthood.  Those who are running the clinics to provide assisted reproductive technologies as well as those poor women who are benefitting out of surrogacy may also be considering the content of the bill as merciless.  But in the long run if such a Bill is passed and implemented, it will lead the society to a comparatively better ethical stage.  However, the State need to take initiative to give more meaningful jobs to the poor, than forcing them to be surrogate mothers for money.  Imagine the risk factors of not only the surrogate mothers but also the sufferings of their husbands and children during the surrogate pregnancy for economic benefits.  A responsible society need to be sensitive to the pain of such poor people and do the necessary to give them more meaningful means of livelihood.

Bio-ethics considers primarily the problems that arise at the beginning of life and also at the end of human life especially in the backdrop of the development in recent years of various medical tools and procedures for creating andsustaining human life. With regard to the beginning of life, bio medical decisions are to be taken concerning abortion, in vitro fertilization, surrogacy, genetic engineering etc. We are day by exposed more to a culture which tries to replace moral values with just the concerns of convenience and feelings. If 'whatever I feel now' and 'whatever is convenient to me' are the ultimate deciding factors of our morality, life will be miserable in a wider sense.  One of the glorious religious notions is the sacredness of life. Life, a unique gift from God, need to be formed, sustained and brought to end in an appropriate dignified way.  Ancient Christian thinkers always emphasized humans as created in the image of God. Indian Advaitic vision and Thattvamasy concept also draw our attention to a higher self within us which can transcend the limitations of materialism.  Sacredness of family, marital bond and the process of procreation also lay a valuable ethical foundation. The calling of the believers is to be a light to a world which is immersing in moral confusion and unenlightened self-interest.

Editorial by Fr. Dr. Bijesh Philip (Principal of St. Thomas Orthodox Theological Seminary, Nagpur) in the Sep- Nov 2016 edition of Sahayatra: the quarterly magazine of the Seminary

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