Open Access Research Article
BAN ON COMMERCIAL SURROGACY IN INDIA: A SYSTEMATIC REVIEW BY: ADHITI SHARMA
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Article Details
BAN ON COMMERCIAL SURROGACY IN INDIA: A SYSTEMATIC REVIEW
AUTHORED BY: ADHITI SHARMA
BALLB
School of Law
Christ University
17.04.23
A systematic review of literature has
been conducted on the ban on commercial surrogacy in India. Scientific
literature till the year 2021 has been reviewed. It includes research articles,
book chapters and research reports. The right keywords have been employed, and
the quality of each piece of literature has been determined. As systematic
segregation for both literature before and after the ban on commercial
surrogacy has been made. The right keywords have been employed, and the calibre
of each piece of literature has been determined. Thematic synthesis has been
used to integrate the findings from research evidence.
Keywords:
Altruistic surrogacy, Ban, Commercial Surrogacy, Surrogacy, Systematic review
The term Surrogacy is the process of
a woman giving birth or carrying a child for another person or individuals in a
surrogacy arrangement, which is frequently backed by a formal contract. It is
governed by the Surrogacy (Regulation) Act 2019. The Act defines the terms
commercial surrogacy and altruistic surrogacy which have been used for the
purpose of this paper. As per the Act, "Altruistic surrogacy" refers
to a surrogacy in which the surrogate mother, her dependents, or her
representative receives no charges, expenses, fees, remuneration, or financial
incentive of any kind, aside from the medical costs incurred on the surrogate
mother and the surrogate mother's insurance coverage.
Selling, buying, or trading the
services of a surrogate mother by providing payment, reward, benefit, fees,
remuneration, or financial incentive in cash or kind to the surrogate mother or
her dependents or her representative, with the exception of medical expenses,
is considered the commercialization of surrogacy. Commercial surrogacy was
first legalised in 2002 after which it was banned in 2015. This review seeks to
examine the literature before and after the ban on commercial surrogacy.
Method
Participants
A Systematic Review of the
literature was conducted, and both publications published pre and post the
commercial surrogacy prohibition was considered. The current review has adhered
to Gough's (2007) model for the stages of a systematic review (Figure 1)
|
Formulate review
question and develop protocol
Define studies to
be considered (inclusion criteria)
Search for
studies(search strategy)
Screen studies
(check that meet inclusion criteria)
Describe studies
(systematic map of research)
Appraise study
quality and relevance
Synthesize
findings (answering review question)
Communicate and
engage
|
Figure 1: Stages of systematic review
Source: Gough
(2007, p.5)
Review Question and search terms
The review question is whether the
literature before and after the ban on commercial surrogacy concur or differ?
Table 1: Search terms used for literature
|
Main Concepts Search items/ Keywords
|
|
Commercial Non- Altruistic
surrogacy, commercial surrogacy, ban
Surrogacy on commercial
surrogacy
|
Search Strategy
A comprehensive search of the
published national and international literature was performed using
bibliographic databases from the relevant disciplines of social sciences,
sociology and law. The search of literature was conducted to identify relevant
published works such as thesis, reports, and research projects. The databases
of literature were searched through Google, Google Scholar web search engine,
thesis etc.
Study selection
The collection of references from the
literature searched was carefully examined to identify was carefully examined
to identify if they met the inclusion criteria for the review. The titles and abstracts of the studies were
evaluated in terms of the inclusion and exclusion criteria listed below in
Table 2
Table 2 : Details of inclusion and exclusion criteria for quantitative
and qualitative studies
|
Feature
|
Inclusion Criteria
|
Exclusion Criteria
|
|
Type of Publication
|
Journals, books, thesis, reports
|
Magazines, newspapers, conferences
|
|
Language of Publication
|
English
|
All other languages
|
|
Subject' of the Articles
|
Commercial surrogacy, Altruistic
surrogacy
|
Transnational surrogacy
|
|
Scope
|
Restricted to India
|
All other countries
|
Quality Assessment
To evaluate the quality of the
research evidence in this investigation, the "weight of evidence"
(WoE) framework developed by Gough in 2007 was applied. Figure 2 illustrates
how Gough provided "generic" and "review specific
judgement," combining both to provide a "overall assessment."
|
Weight of Evidence A
|
|
Generic, non-review specific
judgement about quality of evidence e.g. generally accepted criteriaby those
who generally use and produce evidence.
|
|
Weight of Evidence B
|
|
Review specific judgement about the
appropriateness of a specific form of evidence for answering the current
review question e.g. the relevance of research design
|
|
Weight of Evidence C
|
|
Review specific judgement about the
relevance of the focus of the evidence for the review question e.g. type of
sample, method of data gathering or analysis
|
|
Weight of Evidence D
|
|
Overall assessment of the extent
that a study contributes evidence to answering a review question, typically a
combination of A, B and C
|
Figure 2 : Weight of Evidence Framework
Source: Gough
(2007, p.5)
Table 3 outlines Gough’s (2007)
framework, which supports the review process. All qualitative research studies
have been segregated as per subject of research. Most of the articles taken are
of high quality, however information from less rigorous articles are also
included.
Table
3: Application of Weight of Evidence Framework
|
Weight of Evidence Criteria
|
Implications for current review
|
|
A. Quality of research
|
Research with high cite score
|
|
B. Research Design
|
Qualitative research
|
|
C. Relevance to the theme and scope
|
Commercial/ Non- Altruistic
Surrogacy
|
Results
The characteristics of the reviewed
research evidence have been described.
Description of studies
The following description presents a
general map of the qualitative research before and after the ban on commercial
surrogacy been reviewed. (Table 4)
Table 4: Characteristics of Studies- Qualitative
|
Sl no
|
Author and Year
|
Theoretical and Conceptual Framework
|
Research Questions and Hypothesis
|
Emerging Themes
|
|
1
|
Mina Chang (2009)
|
Nature of commercial surrogacy
|
Analyses regulations in commercial surrogacy
|
Attractive for lower socio eco
levels, demographic trends, New form of business, a form of class, gender and
race exploitation
|
|
2
|
Alison Bailey
(2011)
|
Commercial surrogacy and social
Justice
|
Whether commercial surrogacy is a
viable option in a country with poor women health
|
Outsourcing Surrogacy to India,
Moral and Ethnographic Responses to Indian Surrogacy Work, ethnographic
Narratives, Reproductive Justice as a moral indicator, Reproductive Justice
and Indian Surrogacy, Reproductive Health and Indian Surrogacy Work
|
|
3
|
MM Tieu (2009)
|
Reviewing the psychological studies
on the effect of relinquishing child has on surrogate mother
|
Whether altruistic surrogacy is the
necessary objectification of surrogate mother
|
Fragmentation of the maternal and
infant bond, contractual issues and health risks, objectification of
surrogate mother
|
|
4
|
Amrita Pande
(2010)
|
Analysis of the Anand Surrogacy
programme
|
Analysis of new form of women
labour
|
Surrogacy as labour, analysis of
Anand model of surrogacy, recruitment of desperate mothers, contract and
counseling, surrogacy hostel, different rates
|
|
5
|
Kristine Schanbacher
(2014)
|
India 's Gestational Surrogacy
Market as an Exploitation of Poor, Uneducated Women
|
Whether commercial surrogacy upholds
the principle of medical ethics
|
Non-maleficence and surrogacy,
Health Risk of Surrogate Women Disregarded, Fueling Traditional Class and
Racial Hierarchies, Surrogate Women Commodified, Beneficence of Surrogacy,
autonomy of surrogate women, surrogacy and justice
|
|
6.
|
Virginee Rozee, Syed Uniza, Elise
da La, Rocherbrochard
(2020)
|
Study of primary data obtained by
interview of 33 surrogates
|
Social paradoxes of commercial
surrogacy
|
Reasons to become a surrogate, a
desire for social upward mobility, equal to any other physical job,
preference over other jobs, social condemnation, domination with no autonomy,
moral paradoxes
|
|
7.
|
Dalia Bhattacharjee (2016)
|
Assesses the problem of commercial
surrogacy
|
Whether ban on surrogacy adequately
addresses the problem of commercial surrogacy
|
Assessing the ART Bill, No birth no
pay, Delay in payments, livelihood denial, safeguarding of the womb, hazards
of moral reprehensions
|
|
8.
|
Dr. PM Arathi
(2018)
|
Study to understand legal rights
and Challenges of Surrogates
|
Regulation over ban on commercial
surrogacy
|
Market and Labour, Reproductive
Autonomy, Informed and Voluntary Consent in Surrogacy, Injustice in
‘Balancing Interests, Regulatory Framework in India, Rights of Surrogates,
Legal Ambiguities and its Implications, Legal Enforceability of Surrogacy
Agreements, reasons to be a surrogate, Women as economic anchors of the
family
|
|
9
|
Stency Mariya Mark
(2021)
|
Analysisng commercial surrogacy
throught the lens of capabilities approach
|
Ban on commercial surrogacy not a
soloution
|
Capabilities approach, Kantian
notion of rational agent, Procreation as a profession, Conundrum associated
with commercial surrogacy, informed consent, exploitation of surrogate, bonding
theory
|
|
10
|
Dr. Kamaljit Kaur (2015)
|
Analysis of surrogacy through the
lens of Human rights
|
Right to reproductive health and
commercial surrogacy
|
Profile of surrogate mothers, right
to reproductive health, arguments in favour, violation of art 21
|
|
11.
|
Manya Gupta and Shiromani
Chaturvaedi
(2020)
|
Studies the potential impact of ban
of commercial surrogacy in India through primary data
|
Structural problems with surrogacy
|
Commodification of body and child,
current status of surrogacy, exploitation of women, underground markets,
Health of women affected, Altruistic surrogacy as an option
|
|
12
|
B. Asvini, C. Renuga
(2019)
|
Analysing quantitative data
regarding commercial surrogacy
|
Analysis of the surrogacy bill post
ban
|
Commercial nature of surrogacy,
effect of new bill on commercial surrogacy
|
The characteristics of the ten
qualitative research studies that were reviewed is outlined below.
Nature and focus: 2 studies focus on the assessment of commercial surrogacy in a country
with poor women health, 1 study focusses on the exploitation of women, 2
studies were an assessment of the life of surrogate women undergoing commercial
surrogacy through field study. Post the 2015 ban, one field study concerning 33
surrogates highlights the social paradoxes of commercial surrogacy, 2 studies
focus on the formulation of a regulatory framework over the ban on commercial
surrogacy, one study is a quantitative analysis of the effect of the Surrogacy
(Regulation) Act 2022 and 2 other studies focus on the violation of article 21
as a result of the ban.
Findings
The findings can be grouped under the
following categories:
Assessment: review
done on the literature before and after the ban on commercial surrogacy
Factors that led to the ban: Studies before the ban showed that factors such as
exploitation of surrogate women, human trafficking, abysmal working conditions
and other ethical reasons led to the ban on commercial surrogacy.
Indicators that led to opposing the ban: Studies after the ban observed that
the right to earn a living of waomen was
being violated along with the right to procreate. The autonomy of women was
being interfered with due to the ban and hence the opposition
Key observation: The literature before and after the ban on commercial surrogacy are in
stark contrast with each other
Discussion
Legal Theory
The usage of Assisted Reproductive
technology (ART) has grown immensely around the world. Surrogacy is the process
of the surrogate mother carrying and delivering someone else’s child on their
behalf. Law creates, protects and recognizes the rights created. According to
Hohfeldian analyisis when one has a
right the other has a duty to protect that right. Similarly there exists a
right of women to earn a livelihood for which she has the right to practice
commercial surrogacy. The state has a duty to ensure that this right is
protected. The 2015 ban on commercial surrogacy curtails such a right. However
according to the interest theory, what a right protects is not a will or a
choice but some interest for the benefit of the person who holds that right.
Whether the right to commercial surrogacy really protects the interests of
women is what this article aims to deal, with the help of literature before and
after the ban on commercial surrogacy. The researcher wants to elucidate the
harm principle put forward by J.S. Mill. He claimed that if someone is causing
harm to other people, they must be punished. If not, he is free to act however
he pleases. Absolutely no "damage" is done to anybody else by a
surrogate mother and hence she must be free to exercise her choice.
Brief legislative and social history
Commercial Surrogacy was first
legalised in India in 2002, after which there was a booming rise in surrogacy
market in India. India became the hub of surrogates for foereign couples due to
cheap rates and desperate poverty stricken women. Observing all these changes
the 228th law commission report in 2009 recognised the need to end this
exploitation and shift from commercial to altruistic form of surrogacy. This
shift was partly because of ethical reasons considering a lot of women were
being forced into it. In 2015 commercial surrogacy was banned in India. There
was a need to bring an act that regulated surrogacy laws which led to the
introduction of the Surrogacy (Regulation) Bill 2016. This Bill got passed in
the Lok Sabha but was recommended to a parliamentary standing committee by the
Rajya Sabha to the select committee.
After including a few changes
suggested by the committee the bill was finally passed in 2021 making it the
Surrogacy (Regulation) Act of 2021
Assessment of literature before ban
on Commercial Surrogacy
The review shows that there have been
a considerable number of articles written before the ban on commercial
surrogacy that criticized the kind of impact commercial surrogacy had on
surrogate women. The first study spoke about the tempting salary of the job
which attracts poor women across the country creating a new form of class,
gender or race exploitation. I The disparity in the rates paid to gestational
surrogates makes this racial hierarchy clear. In India, the vast majority of
women who use gestational surrogacy are uneducated, underprivileged, and
frequently have families of their own to feed.
But what the article fails to dwell upon is as to whether the women are
become surrogates as a result of force or by exercising their choice. If women
voluntarily chose commercial surrogacy as a viable career option it cannot be
termed as exploitation.
Another study focuses on the issue of
whether commercial surrogacy should be encouraged in a nation with a
horrendously poor track record for women's health and a high maternal mortality
rate. With the similar background another study dwells with the issue of
maleficience in commercial surrogacy. It states that a medical procedure
shouldn't purposefully cause the patient unnecessary pain or harm. This premise is broken by the
commercial gestational surrogacy market in India. The process frequently
ignores the health dangers surrogate women face, which feeds traditional economic
and racial divisions, and markets surrogate mothers. This was further backed by
an example that states that the US surrogate women for their safety are given
no over than two embryos, whereas in India, surrogates are implanted with five
or more embryos to boost the likelihood of pregnancy. It also highlights the
issue of autonomy as to whether surrogates are able to act freely and
voluntarily without interference from outside forces and with the capacity to
do so with knowledge, intention, and understanding. However if the procedure of
taking informed consent is duly being complied with the issue will not be a
legal issue but more of a sociological problem.
As a part of the review a field study
conducted in Anand, Gujarat a booming centre for surrogacy is included. Around
42 surrogates were interviewd as a part of this study. It elaborates on the
manufacturing of a mother-worker, contract and counseling such that the
surrogacte is completely in control of the management during the nine months.
Another study argues that surrogacy in itself disregards the vital role played
by the biological and psychological relationship between the surrogate and the
infant in this development, which is a critical factor in determining a child's
welfare during the foetus and early infant stages. The natural and intuitive
mother-child relationship is destroyed by surrogacy. Agencies and surrogates
use a variety of cognitive dissonance reduction techniques to try to solve this
issue. The article seeks for the law to
prohibit all forms of surrogacy arrangements. All these articles reflect the
views of people before the ban on commercial surrogacy which are inclined
clearly against the concept of commercial surrogacy. This will be further
contrasted with views brought about post the commercial surrogacy ban in 2015.
Assessment of literature after ban on
Commercial Surrogacy
The review shows that there have been
a considerable number of articles written after the ban on commercial surrogacy
that are in stark contrast to the views of literature before the ban. One field
study of about 33 surrogates breaks the paradox of development of an intuitive
maternal bond with the infant after birth. It observed that the Surrogates did
not mention any particular challenges they had when having to let go of the kid
they were carrying, nor did they anticipate playing a part in the child's future.
Their work was denaturalized. They said that all they were doing was giving the
child room to grow inside of them. Majority surrogates considered surrogacy as
better than the other jobs. The article breaks the paradox of only desperate
poor women being forced into surrogacy. In his findings he found the majority
women not from a poverty-stricken background. Most women were also found to
have informed consent and were conscious of what they were doing.
Another study writes that although
commercial surrogacy in India needs to be regulated, it is being done in the
incorrect way. Instead of the ban a framework that addresses the needs
(economic, physical, and emotional) of all individuals involved in surrogacy
services is required. The author states that he/she is worried about the
necessity for surrogate moms to be shielded from any negative results
(physical, emotional, or financial), as well as the vulnerable intended
parents' wants to become parents and is of the view that the government's
current plan appears to be moving surrogacy in India toward a more
controversial area, which could be dangerous. However what is problematic in
this article is its very objective that seeks to study the “impact” of
commercial surrogacy which in practicality cannot be measured. It also seeks
for a regulatory framework but ignores the fact that the existence of surrogacy
contracts in itself are a form of regulation and thus there arises no necessity
of an additional law governing the working conditions of surrogates.
One of the studies elaborates on the
moral reasons that could have led to the ban on commercial surrogacy. While it
recognizes the issues that might crop in if commercial surrogacy being made
valid it states that the regulation of the market could have been a viable
option compared to the blanket ban on commercial surrogacy as it raises a
counterproductive effect. The promotion of altruistic form of surrogacy could
lead to forcing members within the family to become surrogate mothers and huge
rise in underground markets. The findings of yet another study collected as a
part of the researcher’s review contends that the dangers of exploitation do
not disappear just because the current surrogacy practise has no commercial
components. The author backs this argument with empirical quantitative data on
whether the Surrogacy Bill of 2019 would reduce commercial surrogacy in India
as a result it got 60% of the persons not in favour of the statement. The
shortcoming of this paper however is that the effectivity of an act cannot be
measured by a mere survey capturing the opinions of people.
While the studies before the ban on
commercial surrogacy said favoured such a ban on grounds of exploitation, the
subsequent studies post the ban says that the prohibition against commercial
surrogacy based on concerns about exploitation is unreasonable and an outright
violation of the couple's right to procreate. A woman who chooses to become a
surrogate, on the other hand, typically has urgent financial demands as a
result of underemployment or unemployment. Banning commercial surrogacy is
neither a solution nor an answer without addressing the reality of jobs and pay
in India. Another article studies the ban on commercial surrogacy with the help
of capabilities approach. According to Nussbuam, the government must fulfil the
minimum requirements or minimal capacities (giving women with opportunities to
engage in physical activity and bodily integrity) that promotes living a
respectable life and an opportunity to exercise one’s capabilities. The
researcher argues that the government is imposing its ownership over a woman's
bodily autonomy and right to privacy by outlawing commercial surrogacy. Women
are being told "what they can do with their body and what they
cannot" by the government. Only a woman has the authority to make
decisions about her body.
Conclusion
A systematic review was conducted on
the ban on commercial surrogacy in India. Appropriate keywords were used to
find the literature and the quality was assessed using the Weight of evidence
framework. After assessing, thematic synthesis was used to segregate the
findings of both literature after and before the ban on commercial surrogacy.
This review sought to address the question of whether the literature before and
after the ban on commercial surrogacy concur or differ.
The review shows that the literature
collected before the ban on commercial surrogacy listed down various issues
pertaining to commercial surrogacy on majorly two grounds social and ethical.
The social grounds included exploitation, forced or uninformed consent, human
trafficking etc. Apart from these women were also forced to conceive multiple
times, middlemen would take commercial advantages of uneducated women and
frequent abandonment of surrogate women. The ethical reasons would be that of
womb considered sacred and safe thus must not be exposed to trade practices.
All of these grounds indicated a weak state of affairs with respect to
surrogates for which a ban on commercial surrogacy seemed a viable option.
On the other hand, articles that came
after the ban on commercial surrogacy criticized the move on the grounds that
there is a limited understanding of the exploitation that was taking place and
thus a regulatory framework would be more effective in curtailing such
exploitation rather than a blanket ban on commercial surrogacy. Some of the
concerns raised were that it strips women of the autonomy over their bodiesand
violates their right to make reproductive choices under article 21. With the
above findings and discussions it can be concluded that the review has made a
successful attempt in bringing about the contrasting literature before and
after the ban on commercial surrogacy.
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Article Information
BAN ON COMMERCIAL SURROGACY IN INDIA: A SYSTEMATIC REVIEW BY: ADHITI SHARMA
Authors: ADHITI SHARMA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/18
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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