223 CHAPTER 6 SURROGATE MOTHERHOOD: AN EMPIRICAL STUDY Surrogate motherhood is variously described in emotive terms such as “rent a womb” or, on the other hand, “gift of love” or “gift of life” depending on a particular viewpoint. Regardless, surrogacy is a source of considerable legal, moral and ethical debate all over the world. A surrogate mother’ is a woman who agrees to be artificially inseminated with the sperm of a man whose own wife is incapable of conceiving or carrying a child to term. In the typical case, the surrogate mother conceives, carries the child for nine months, gives birth, and then releases her parental rights, giving up the child to the infertile couple for adoption. Although surrogacy has occurred throughout history, the issue is currently firm on the public agenda. New reproductive technologies have added significantly to the potential of surrogacy, making it necessary for the law to specifically address all aspects of the issue. There are moves to introduce surrogacy legislation in India. Few really acknowledge and understand the utter seriousness of this issue that is gaining such widespread notoriety. It is important to note the problem with all of the issues raised for and against surrogacy is that the principles do not apply generally. People involved in surrogacy arrangements are individuals and they may or may not be affected or influenced by each of the factors related to surrogate motherhood. There is a strong need for Indian research on the effects of surrogacy on commissioning parents and surrogate mothers and its impact on the emotional, social and intellectual development of children born from a surrogacy arrangement. A survey in this regard was conducted in various states of India. The methodology adopted for this study was exploratory research of the social and legal aspects involved in surrogate motherhood through the means of a survey. The tools included two separate structured questionnaires 612 for legal experts and medical experts. One questionnaire of 612 Copies of these questionnaires are enclosed as Appendix I and Appendix II.
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223
CHAPTER 6
SURROGATE MOTHERHOOD:
AN EMPIRICAL STUDY
Surrogate motherhood is variously described in emotive terms such as “rent a
womb” or, on the other hand, “gift of love” or “gift of life” depending on a particular
viewpoint. Regardless, surrogacy is a source of considerable legal, moral and ethical
debate all over the world.
A surrogate mother’ is a woman who agrees to be artificially inseminated with the
sperm of a man whose own wife is incapable of conceiving or carrying a child to term. In
the typical case, the surrogate mother conceives, carries the child for nine months, gives
birth, and then releases her parental rights, giving up the child to the infertile couple for
adoption. Although surrogacy has occurred throughout history, the issue is currently firm
on the public agenda. New reproductive technologies have added significantly to the
potential of surrogacy, making it necessary for the law to specifically address all aspects
of the issue. There are moves to introduce surrogacy legislation in India.
Few really acknowledge and understand the utter seriousness of this issue that is
gaining such widespread notoriety. It is important to note the problem with all of the
issues raised for and against surrogacy is that the principles do not apply generally.
People involved in surrogacy arrangements are individuals and they may or may not be
affected or influenced by each of the factors related to surrogate motherhood. There is a
strong need for Indian research on the effects of surrogacy on commissioning parents and
surrogate mothers and its impact on the emotional, social and intellectual development of
children born from a surrogacy arrangement.
A survey in this regard was conducted in various states of India. The methodology
adopted for this study was exploratory research of the social and legal aspects involved in
surrogate motherhood through the means of a survey. The tools included two separate
structured questionnaires612 for legal experts and medical experts. One questionnaire of
612 Copies of these questionnaires are enclosed as Appendix I and Appendix II.
224
total of thirty questions to be filled by IVF clinics/doctors and other questionnaire of total
of twenty one questions to be filled by legal experts were drafted to collect the
information about different aspects of surrogate motherhood. The sample size consisted
of one hundred legal experts and fifty IVF clinics including doctors. The final report aims
to highlight the major findings and suggests recommendations for future policy
implications. Followings are the findings based on this survey.
1. General conception of the term Surrogate Motherhood
Though the term Surrogacy is relatively new in India, yet people have a general
idea about the concept of surrogate motherhood. It was asked from a finite set of legal
experts as well as medical experts as how do they see surrogacy. Majority of them i.e. 54
per cent (legal experts) and 90 per cent (medical experts) considered surrogacy as a
“boon for infertile couples.” Very few of them referred it as “baby selling” or “immoral
practice” (Table 6.1 and Figure 6.1).
Table 6.1
General conception about surrogate motherhood
S.No. Response Legal Experts Medical Experts
Frequency % age Frequency % age
1. Boon for Infertile
Couples
54 54% 45 90%
2. Baby Selling 09 9% 05 10%
3. Immoral Practice 10 10% Nil 0%
4. Service to Humanity 27 27% Nil 0%
Total 100 100% 50 100%
225
Figure 6.1
General conception about surrogate motherhood
0
10
20
30
40
50
60
70
80
90
Boon for
Infertile
Couples
Baby Selling Immoral
Practice
Service to
Humanity
54
9 10
27
90
10
0 0
Legal Experts
Medical Experts
2. Contract for Surrogacy arrangements
Surrogacy relatively being a new concept in our country, it is continuously being
argued whether to have a legal contract between the parties i.e. the surrogate mother and
the intended parents. The Survey shows nearly 81 per cent legal experts favored the
presence of a formal contract between both the parties. 13 per cent were of the view that
such a contract is not that much necessary. Only 13 per cent of them said that there is no
requirement of any such contract [Table 6.2(a) and Figure 6.2(a)]. And in response to the
same question 82 per cent of the IVF clinics/doctors said that there is a formal contract
between the said parties. 14 per cent said that surrogacy contract is not necessary and it
only depends upon the wish of parties [Table 6.2(b) and Figure 6.2(b)].
226
Table 6.2(a)
View of legal experts regarding the requirement of a contract for surrogacy.
S.No. Response Frequency % age
1. Yes 81 81%
2. No 03 03%
3.
4.
Not necessarily
Can’t say
13
03
13%
3%
Total 100 100%
Figure 6.2(a)
View of legal experts regarding the requirement of a contract for surrogacy.
0
10
20
30
40
50
60
70
80
90
Yes No Not necessarily Can’t say
81
3
13
3
227
Table 6.2(b)
Signing of a formal contract between the parties through IVF clinics/doctors
S.No. Response Frequency % age
1. Yes 41 82%
2. No Nil 0%
3.
4.
Not necessarily
Can’t say
07
02
14%
4%
Total 50 100%
Figure 6.2(b)
Signing of a formal contract between the parties through IVF clinics/doctors
82
0
144
Yes
No
Not
necessarily
3. Surrogacy arrangements ensuring the best interest of the entities involved
The surrogacy arrangements directly influence the intended parents, surrogate
mother as well as the child to be born. When asked, majority of legal experts i.e. 41 per
cent considered the best interest of all of them. The other fractions in the survey favoured
them individually. And similarly majority i.e. 56 per cent of IVF clinics/doctors favoured
the best interest of all the entities involved in a surrogacy arrangement (Table 6.3 and
Figure 6.3).
228
Table 6.3
Opinion regarding best interest of the entities involved in surrogacy
Figure 6.3
Opinion regarding best interest of the entities involved in surrogacy
0
10
20
30
40
50
60
Child to be
Born
Surrogate
Mother
Intended
Parents
All of above
23
13
23
41
32
48
56
Legal Experts
Medical Experts
S.No. Response Legal Experts IVF clinics
Frequency % age Frequency % age
1. Child to be Born 23 23% 16 32%
2. Surrogate Mother 13 13% 02 4%
3. Intended Parents 23 23% 04 8%
4. All of above 41 41% 28 56%
Total 100 100% 50 100%
229
4. Running of ART/IVF clinics
With the advancement in assisted reproduction, ART/IVF clinics are
mushrooming in the country. The misfortune of childlessness, in modern times, is met by
highly innovative medical advancements in the reproductive technologies like surrogacy.
Infertile couples even from other countries are coming to India to realise their parenthood
dream through surrogacy because, here in India, cost of surrogacy is relatively much
cheaper than in other countries. Surrogacy is the way to overcome both biological and
social infertility. It provides medically infertile couples as well as socially infertile
individuals who are not willing to get married with a chance to have a child of their own.
The practice is going to continue to grow with more individuals and couples willing to
use ART to assist them with infertility problems. However, there is legal vacuum in this
area of Medical advancement and adequate measures has to be taken in these medico-
legal issues specifically to regulate and control the functioning of ART clinics in India in
order to stop the exploitation of the parties involved in surrogacy arrangement (surrogate
mother and intended parents) at the hands of these clinics.
4.1 Regulation of IVF clinics
Presently regulation of these clinics comes under the purview of Pre-Conception
and Pre-Natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 2003, (PC &
PNDT Act) or guidelines given by Indian Council for Medical Research (ICMR) which
are not legally binding. These clinics are exploiting the provisions of present law to suit
their motive of yielding financial gains. In the absence of any specific legislation
ART/IVF clinics may exploit both the parties (surrogate mother, intended parents). From
the result recorded during the survey it was found that 64 per cent of the clinics are
regulated by present law i.e. PC & PNDT Act, 2003. 14 per cent clinics were regulated
by ICMR guidelines. 22 per cent of the clinics have their own rules and policies for the
regulation of their clinics (Table 6.4.1 and Figure 6.4.1).
230
Table 6.4.1
Regulation of IVF clinics
S.No. Response Frequency % age
1. ICMR Guidelines, 2005 07 14%
2. Present Law (e.g. PC & PNDT Act, 2003) 32 64%
3. Own Rules/Policies 11 22%
Total 50 100%
Figure 6.4.1
Regulation of IVF clinics
0
10
20
30
40
50
60
70
ICMR Guidelines Present Law (e.g. PC
& PNDT Act, 2003)
Own Rules/Policies
14
64
22
4.2 Frequency of surrogacy cases
These days more and more people are opting for surrogacy due to many reasons.
One of the prime reasons is declined fertility rate. The other reason is that the women are
becoming more career oriented these days. They do not want to spare time and take pain
of pregnancy and its related problems. Some are opting for surrogacy out of fear of
labour pain or out of convenience. For these very reasons lots of IVF clinics and the
231
related industry is cropping up. In the survey it was found that on an average an IVF
clinic handles less than 10 cases per year (70 per cent). Around 18 per cent of IVF clinics
were handling 10 to 25 cases yearly (18 per cent). There were some well-established
clinics which were handling 25 to 50 cases yearly (12 per cent). But in any case no clinic
was handling more than 50 cases per year (Table 6.4.2 and Figure 6.4.2).
Table 6.4.2
Frequency of surrogacy cases in IVF clinics
S.No. Response Frequency % age
1. Less than 10 35 70%
2. 10 to 25 09 18%
3. 25 to 50 06 12%
4. More than 50 Nil 0%
Total 50 100%
Figure 6.4.2
Frequency of surrogacy cases in IVF clinics
70
18
120
Less than 10
10 to 25
25 to 50
More than 50
232
4.3 Purpose of Surrogacy
It was observed in the survey that purpose of the surrogacy was primarily
commercial (76 per cent). Generally the women who are acting as surrogates come from
economically and socially weaker sections of the society. They perform surrogacy to
meet the immediate and pressing demands of their family like food, shelter, education for
their children and wellbeing of the entire family. But sometimes the purpose for doing
surrogacy is entirely altruistic as is done by a relative or family friend of the infertile
couple to help them fulfill their dream of parenthood. It was found in the survey that 6
per cent of IVF clinics/doctors have done altruistic surrogacy. 18 per cent of them said
that they have faced surrogacy cases for both the purposes i.e. commercial as well as
altruistic (Table 6.4.3 and Figure 6.4.3).
Table 6.4.3
Purpose of surrogacy as faced by IVF clinics
S.No. Response Frequency % age
1. Commercial 38 76%
2. Altruistic 03 6%
3. Both 09 18%
4. None of above Nil 0%
Total 50 100%
Figure 6.4.3
Purpose of surrogacy as faced by IVF clinics
76
6
18 0
Commercial
Altruistic
Both
None of the above
233
4.4 Source to find surrogate mother
Finding a suitable host to carry a baby is a difficult task for the infertile couples. It
was asked from the IVF clinics/doctors that how do they arrange a surrogate mother for
their clients. 30 per cent of them told that the intended parents themselves arrange for a
surrogate mother. Whereas 52 per cent said that they arrange surrogate mothers through
their own records or databases. 4 per cent told that surrogate mother herself approach to
them. 14 per cent revealed that they find surrogate mothers through advertisements.
However, in the Draft Bill of Assisted Reproductive Technologies, 2010 any kind of
advertisement relating to surrogacy is prohibited (Table 6.4.4 and Figure 6.4.4).
Table 6.4.4
Source to find surrogate mother
S.No. Response Frequency % age
1. Through own Data Base 26 52%
2. Advertisement 07 14%
3.
4.
Surrogate Mother Herself
Intended Parents
02
15
4%
30%
Total 50 100%
Figure 6.4.4
Source to find surrogate mother
0
10
20
30
40
50
60
Through own
Data Base
Advertisement Surrogate
Mother Herself
Intended
Parents
52
14
4
30
234
4.5 Procurement of genetic material
During the survey it was asked from IVF clinics/doctors that from where do they
arrange genetic material to initiate a surrogacy procedure in case intended couple is
unable to produce eggs/sperm. 72 per cent of them told that they arrange it from
independent sperm/egg banks. 22 per cent of them said that intended couple itself
arranges for it. 4 per cent said that they have a specified list of donors to whom they
consult whenever there is such demand. Only 2 per cent arrange it through advertisement
(Table 6.4.5 and Figure 6.4.5).
Table 6.4.5
Procurement of genetic material by IVF Clinics
S.No. Response Frequency % age
1. From sperm/egg banks 36 72%
2. List of donors 02 4%
3.
4.
Advertisement
Intended Couple arranges for it
01
11
2%
22%
Total 50 100%
Figure 6.4.5
Procurement of genetic material by IVF Clinics
0
10
20
30
40
50
60
70
80
From sperm/egg
banks
List of donors Advertisement Intended couple
arranges for it
72
4 2
22
235
5. Profile of surrogate mother
The women who engage in surrogacy are usually poor. They agree to conceive on
behalf of another couple in return for a sum of money that would otherwise take many
years to make. It is important to understand that these women generally do not have many
career prospects as they are predominately uneducated, often engaged in casual work,
sometimes migrants in search of better job opportunities and living in slum areas with
inadequate housing facilities. They come from lower middle class backgrounds, are
married, and are in need of quick money in order to, among other purposes, maintain
their families, buy a house or pay for the children‘s higher education or to settle up a
business for her unemployed, drunkard husband. There is a growing demand for fair-
skinned, educated young women to become surrogate mothers for foreign couples.
Usually the young women are preferred to perform surrogacy so as to avoid any medical
complication. According to the survey, most of the fertility clinics pay surrogate mothers
between Rs. 1 lakh to 3 lakhs for carrying a pregnancy.
5.1 Marital status of the Surrogate Mother
It is a matter of concern as what should be the marital status of the surrogate
mother. Around 50 per cent of the legal experts involved in the survey opined that the
woman acting as a surrogate must be married. A small fraction of 9 per cent qualified the
unmarried women to act as surrogates. 15 per cent were of the view that woman acting as
surrogate may be a widow and 26 per cent of the opinion that she can be a
divorcee/separated [Table 6.5.1(a) and Figure 6.5.1(a)]. In response to this question 90
percent IVF clinics/doctors said that generally surrogate mother is a married woman and
sometimes she is a widow/divorcee/separated. But in no case they had performed
surrogacy with an unmarried woman as surrogate [Table 6.5.1(b) and Figure 6.5.1(b)].
Generally women acting as surrogate mothers come from poor families. In order
to meet their immediate needs, they find surrogacy an easy and fast way to make money.
The result shows that most of the woman acting as surrogate mothers are married. They
opt surrogacy for financial reasons or helping a relative. Unmarried women opt surrogacy
for the deep pressing financial reason only. Like unmarried women other single women
like widow, divorcee or separated go for surrogacy generally for the same reasons.
236
Table 6.5.1(a)
Comments by legal experts regarding the marital status of the surrogate mother
S.No. Response Frequency % age
1. Married 50 50%
2. Unmarried 09 9%
3. Widow 15 15%
4. Divorcee/separated 26 26%
Total 100 100%
Figure 6.5.1(a)
Comments by legal experts regarding the marital status of the surrogate mother
50
9 15
26
Married
Unmarried
Widow
Divorcee/ Separated
237
Table 6.5.1(b)
Marital status of the surrogate mother as told by IVF clinics/doctors
S.No. Response Frequency % age
1. Married 45 90%
2. Unmarried Nil 0%
3. Widow 02 4%
4. Divorcee/separated 03 6%
Total 50 100%
Figure 6.5.1(b)
Marital status of the surrogate mother as told by IVF clinics/doctors
0
10
20
30
40
50
60
70
80
90
Married Unmarried Widow Divorcee/
separated
90
0 4 6
5.2 Requirement of consent before entering the surrogacy contract
Ours is basically a male dominating society. A woman whether married or
unmarried, educated or uneducated, employed or unemployed has to consult or take
permission of her family members before taking any major decision. A major fraction of
legal experts i.e. 61 per cent involved in survey were in favour of the surrogate mother
taking consent of her husband and other family members. 27 per cent were of the opinion
that only the woman entering the surrogacy contract should decide for herself [Table
238
6.5.2(a) and figure 6.5.2(a)]. Whereas 80 per cent of IVF clinics/doctors said that
husband’s consent is necessary before entering into a surrogacy contract. Only 6 per cent
of them told that surrogate mother can enter a surrogacy contract on her own without
taking anybody’s consent [Table 6.5.2(b) and Figure 6.5.2(b)].
Table 6.5.2(a)
Opinion of legal experts regarding the consent required by surrogate mother
S.No. Response Frequency % age
1. Surrogate Mother only 27 27%
2. Her Husband only 09 9%
3. Her Family Members 03 3%
4. All of above 61 61%
Total 100 100%
Figure 6.5.2(a)
Opinion of legal experts regarding the consent required by surrogate mother
27
93
61
Surrogate Mother only
Her Husband only
Her Family Members
All of above
239
Table 6.5.2(b)
Data received from IVF clinics about the requirement of consent by surrogate mother
S.No. Response Frequency % age
1. Surrogate Mother only 3 6%
2. Her Husband only 40 80%
3. Her Family Members Nil 0%
4. All of above 07 14%
Total 50 100%
Figure 6.5.2(b)
Data received from IVF clinics about the requirement of consent by surrogate mother
0
10
20
30
40
50
60
70
80
Surrogate
Mother only
Her Husband
only
Her Family
Members
All of above
6
80
0
14
5.3 Own children of Surrogate mother
It seems viable to have at least one child of her own before surrendering another
one in the surrogacy arrangement. This is due to the fact that in case of any mishappening
or accident which impairs her ability to reproduce, she is still having her own child or
children. During the survey it was observed that 52 per cent of the legal experts said that
it does not matter whether the surrogate mother is having the children or not. Whereas 30
per cent felt that she should have at least one child of her own and 10 per cent favoured
for two children of surrogate mother. Almost similar response from IVF clinics/doctors
240
was recorded during the survey i.e. 78 per cent preferred that surrogate mother should
have at least one child of her own before going for surrogacy arrangement. 10 per cent
favoured for two children while 12 per cent said it doesn’t matter that if she is having any
child or not (Table 6.5.3 and Figure 6.5.3).
Table 6.5.3
Views regarding own children of a surrogate mother
Figure 6.5.3
Views regarding own children of a surrogate mother
0
10
20
30
40
50
60
70
80
At least one At least two No child at all Does not
matter
78
10
0
12
30
10 8
52
Legal Experts
IVF Clinincs/Doctors
5.4 Age Limit of woman to become surrogate mother
Majority of the doctors (52 per cent) were of the view that the ideal period for a
woman to become a surrogate mother is 26 to 35 years of age. 42 per cent were of the
view that the age to become surrogate mother should be in between 18 to 25. Very few of
S.No. Response Legal Experts IVF clinics
Frequency % age Frequency % age
1. At least one 30 30% 39 78%
2. At least two 10 10% 05 10%
3. No child at all 08 8% Nil 0%
4. Does not matter 52 52% 06 12%
Total 100 100% 50 100%
241
them i.e. only 3 per cent felt that the age should be 36 to 45 years (Table 6.5.4 and Figure
6.5.4).
It is known fact that the female of 18 years is mature enough (physically and
mentally) to bear a child. But the majority of doctors have suggested that the age to
become a surrogate mother is 26 to 35 years. It is because of the fact that by the time she
thinks of becoming a surrogate mother she would have been completed her family with
one or more children of her own as discussed earlier.
Table 6.5.4
Age limit to become surrogate mother according to medical experts
S.No. Response Frequency % age
1.
2.
Below 18
18 to 25
Nil
21
0%
42%
3. 26 to 35 26 52%
4. 36 to 45 03 6%
5. 45 and above Nil 0%
Total 50 100%
Figure 6.5.4
Age limit to become surrogate mother according to medical experts
0
42
52
6 0
Below 18
18 to 25
26 to 35
36 to 45
45 and above
242
5.5 Educational qualifications of surrogate mothers
During the survey it was observed that most of the surrogate mothers were
illiterate (64 per cent). 22 per cent were educated to matric level. While 12 per cent were
educated to higher secondary level. Only 2 per cent of them were graduates (Table 6.5.5
and Figure 6.5.5). These days it’s a trend towards employing the surrogate mother with
good educational as well as social background especially where foreign couples are
involved.
Table 6.5.5
Educational qualifications of surrogate mothers as recorded by IVF clinics
S.No. Response Frequency % age
1. Illiterate 32 64%
2. Matric 11 22%
3. Higher Secondary 06 12%
4.
5.
Graduate
Post Graduate
01
Nil
2%
0%
Total 50 100%
Figure 6.5.5
Educational qualifications of surrogate mothers as recorded by IVF clinics
0
10
20
30
40
50
60
70
Illiterate Matric Higher
Secondary
Graduate Post
Graduate
64
22
12
20
243
5.6 Social status of surrogate mothers
88 per cent of IVF clinics/doctors said that surrogate mothers come from lower
strata of society. Only 10 per cent said that they hail from middle class families. The
lower strata are usually economically backward. Thus to make easy and fast money they
opt for surrogacy. The result shows 2 per cent of the surrogate mothers belonging to
upper middle class. These were those women who were helping their relatives for having
a child on humanitarian grounds (Table 6.5.6 and Figure 6.5.6).
Table 6.5.6
Social status of surrogate mother as recorded by the IVF clinics
S.No. Response Frequency % age
1. Lower Strata 44 88%
2. Middle Strata 05 10%
3. Upper Middle Strata 01 2%
4. Upper Strata Nil 0%
Total 50 100%
Figure 6.5.6
Social status of surrogate mother as recorded by the IVF clinics
88
10
2
0 Lower strata
Middle strata
Upper middle strata
Upper strata
244
5.7 Insurance Policy for surrogate mother
These days there are various insurance companies which provide different kinds
of insurance policies for life, health etc. Everybody wants a good health and medical
insurance plan. As such a pregnancy involves so many health complications, even a
danger to life sometimes. In order to avoid those complications and potential health risks
a better care and treatment is required which in turn requires more expenses. For bearing
those expenses an insurance policy can be helpful. Here the question arises that in a
surrogacy arrangement whether a surrogate mother who is undergoing the pregnancy
process having potential health and life risks should be insured or not.
During the survey 30 per cent of medical experts told that a surrogate mother
should be insured for her health. 62 per cent favoured for both types of insurance i.e. her
health and her life as well. 8 per cent of them were in favour of life insurance policy for
surrogate mother. When this questions was asked from the legal experts 56 per cent were
in favour of both type of insurance (health and life insurance) for the surrogate mother.
28 and 14 per cent of them favoured for her Life and Medical & Health insurance
respectively. Only 2 per cent told that she should not insured at all for undergoing a
surrogacy arrangement (Table 6.5.7 and 6.5.7).
Table 6.5.7
Views regarding the provision of insurance policy for surrogate mother
S.No. Response Legal Experts Medical Experts
Frequency % age Frequency % age
1. Her Life (Life Insurance) 28 28% 04 8%
2. Medical and Health Insurance 14 14% 15 30%
3. Both of above 56 56% 31 62%
4. No insurance at all 02 2% Nil 0%
Total 100 100% 50 100%
245
Figure 6.5.7
Views regarding the provision of insurance policy for surrogate mother
0
10
20
30
40
50
60
70
Her Life
(Life
Insurance)
Medical and
Health
Insurance
Both of
above
No
insurance at
all
28
14
56
28
30
62
0
Legal Experts
Medical Experts
5.8 Monetary benefits for becoming surrogate mother
The amount of compensation given to the surrogate mother is another particularly
different aspect when what is involved is the creation of life-a baby no less. Its value has
to be universally uniform as a product of the procreative power of women and not of
social labour that varies in value and creates commodities. During the survey 76 per cent
of IVF clinics/doctors told that on an average a surrogate mother is getting Rs. 1 lakh to 3
lakhs for carrying a pregnancy. 18 per cent said that they earn less than one lakh and 6
per cent revealed that they earn Rs. 3 lakhs to 5 lakhs (Table 6.5.8 and Figure 6.5.8).
Table 6.5.8
Response of medical experts regarding monetary benefits to become surrogate mother
S.No. Response Frequency % age
1. Less than one lakh 09 18%
2. 1 to 3 lakhs 38 76%
3. 3 to 5 lakhs 03 6%
4. More than 5 lakhs Nil 0%
Total 50 100%
246
Figure 6.5.8
Response of medical experts regarding monetary benefits to become surrogate mother
18
76
6 0
Less than one lakh
1 to 3 lakhs
3 to 5 lakhs
More than 5 lakhs
5.9 Number of attempts for becoming surrogate mother
The draft of Assisted Reproductive Technologies (Regulation) Bill, 2010 permits
three surrogate pregnancies for a woman apart from her own children. According to 8 per
cent of medical experts, a normal woman of good health can become surrogate mother
for three times. 52 per cent of them were of the view that a woman can undergo
surrogacy twice. 34 per cent said that she should become surrogate mother only once as
they think that such women should not compromise with their health in greed of earning
easy money. Whereas 6 per cent were of the view that a woman can undergo surrogacy
for any number of times (Table 6.5.9 and Figure 6.5.9).
Table 6.5.9
Opinion of medical experts regarding number of attempts for undergoing surrogacy
S.No. Response Frequency % age
1. Only once 17 34%
2. Twice 26 52%
3. Thrice 04 8%
4. Any number of times 03 6%
Total 50 100%
247
Figure 6.5.9
Opinion of medical experts regarding number of attempts for undergoing surrogacy
34
52
86
Only once
Twice
Thrice
6. Right to abort the child Right in case of any health/life threatening situation
There is a complex situation when a surrogate bound in contract is not able to
complete the deal successfully because of her health problem. On the other hand if she is
forced to carry on with the pregnancy according to the contract, this will be a violation of
her fundamental rights of freedom and liberty. Majority of legal experts (75 per cent) in
the survey recommended that the surrogate mother must have the right to abort the child
if there is any threat to her health/ life in case she carries on with pregnancy survey
(Table 6.6 and Figure 6.6).
Table 6.6
Opinion of legal experts regarding right of surrogate mother to abortion
S.No. Response Frequency % age
1. Yes 75 75%
2. No 09 9%
3. Can’t say 16 16%
Total 100 100%
248
Figure 6.6
Opinion of legal experts regarding right of surrogate mother to abortion
75
9
16
Yes
No
Can't say
7. Person responsible for wellbeing of surrogate mother
The whole process of child bearing till its birth is very difficult and thus requires a
very good care and a regular watch on the health aspects of the mother as well as the
child in the womb. In a normal case of pregnancy the expecting couple is itself
responsible for the wellbeing of the pregnancy. But in case of a surrogacy arrangement
situation is different where a third party is involved. Here the question arises that who
will ensure the wellbeing of the mother during the gestational period. 12 per cent of IVF
clinics/doctors said that it is the responsibility of intended parents to ensure the regular
check-ups etc. of surrogate mother. 6 per cent of them told that IVF clinic which arranges
for this process ensures the wellbeing of surrogate mother. Only 2 per cent told that the
surrogate mother herself takes responsibility of her wellbeing. Whereas 80 per cent of
them said that it is a collective effort of all of them. On the contrary, majority of legal
experts i.e. 77 per cent opined that the intended parents should be responsible for the
wellbeing of surrogate mother as they are the persons for whom the whole process of
surrogacy is to be initiated. Only 12 per cent of them were of the view that all the parties
involved i.e. intended parents, surrogate mother as well as the IVF clinic are equally
responsible for the wellbeing of surrogate mother during her gestational period (Table 6.7
and Figure 6.7).
249
Table 6.7
Person responsible for wellbeing of surrogate mother
Figure 6.7
Person responsible for wellbeing of surrogate mother
0
10
20
30
40
50
60
70
80
Intended
parents
Surrogate
mother
herself
IVF clinic
itself
All of above
77
4 71212
26
80
Legal Experts
Medical Experts
8. Time duration for which the expenses of the surrogate mother should be borne
by the intended parents
It is a matter of concern that till what time the intended parents should ensure the
expenses of the surrogate mother in a surrogacy arrangement. The legal experts as well as
medical experts involved in the survey were given some options for this to which their
responses were recoded as shown in the Table 7.8 and Figure 7.8 below.
S.No. Response Legal Experts Medical Experts
Frequency % age Frequency % age
1. Intended parents 77 77% 06 12%
2. Surrogate mother herself 04 4% 01 2%
3. IVF clinic itself 07 7% 03 6%
4. All of above 12 12% 40 80%
Total 100 100% 50 100%
250
Table 6.8
Duration for which the expenses of surrogate mother should be borne by intended
parents
Figure 6.8
Duration for which the expenses of surrogate mother should be borne by intended
parents
0
10
20
30
40
50
60
70
80
90
Till the birth of
the child
Till handing over
the child
Till surrogate
mother is free
from all health
complications
arising due to
pregnancy
1421
65
28
90
Legal Experts
Medical Experts
S.No. Response Legal Experts IVF clinics
Frequency % age Frequency % age
1. Till the birth of the child 14 14% 01 2%
2. Till handing over the child 21 21% 04 8%
3. Till surrogate mother is free
from all the health
complications arising due to
pregnancy
65 65% 45 90%
Total 100 100% 50 100%
251
9. Handing over the child to intended parents
After the birth of the child, it is a matter of concern that what should be the time
frame in which the child must be handed over to the intended parents. If the child is
immediately after the birth, handed over to the intended parents, he/she will be deprived
of the breast milk which is considered the nectar of life in his/her initial days. On the
other hand if the child is handed over after a specific interval of time there could be a
possibility that the surrogate mother may develop emotional bonding with the child
which would not be in anybody’s interest i.e. neither the surrogate mother herself nor the
intended parents or the child.
During the survey it was found that in most of the cases (92 per cent) the child is
handed over to the intended parents immediately after the birth. 6 per cent responded that
the child is given after the interval of 40 days so that he/she can have the much needed
breast milk for that minimum period of time. Only 2 per cent revealed that child is given
after 6 months when the baby is sufficiently mature to wean the breast milk (Table 6.9
and Figure 6.9)
Table 6.9
Data received from IVF clinics/doctors regarding handing over the child to intended
parents
S.No. Response Frequency % age
1. Immediately after birth 46 92%
2. After 40 days 03 6%
3.
4.
After 6 months
Within a year
01
Nil
2%
0%
Total 50 100%
252
Figure 6.9
Data received from IVF clinics/doctors regarding handing over the child to intended
parents
0
10
20
30
40
50
60
70
80
90
100
Immediately
after birth
After 40 days After 6 months Within a year
92
62 0
10. Refusal to give or take the custody of the child
As discussed earlier that in case of delayed handing over the child may lead to an
emotional attachment of surrogate mother with the child. In that case she may refuse to
part with the child. It seems unlikely, however, that a woman will sign a contract as
surrogate because she really want a baby for herself but want someone to pay for their
insemination and other medical expenses. On the other hand the intended parents may
also refuse to take the custody of the child due to some reasons like separation of
intended parents; any physical impairment in child; child is not of preferred sex etc. A
question related to this issue was asked from IVF clinics/doctors. Majority of them i.e. 84
per cent denied such an incident where a surrogate mother has refused to give the child’s
custody or the intended parents denied taking the custody of the child. 12 per cent of
them said that it rarely happened while only 4 per cent confronted such a situation only
once (Table 6.10 and Figure 6.10).
253
Table 6.10
Incidence of refusal to give or take the custody of the child in IVF clinics
S.No. Response Frequency % age
1. Only once 02 4%
2. Sometimes 06 12%
3.
4.
Most of the times
Never
Nil
42
0%
84%
Total 50 100%
Figure 6.10
Incidence of refusal to give or take the custody of the child in IVF clinics
0
10
20
30
40
50
60
70
80
90
Only once Sometimes Most of the times Never
4
12
0
84
11. Provision of counselling sessions
As discussed above, situations can arise where a surrogate mother refuses to part
with the child and intended parents deny to take the custody of the child after his/her
birth. For the smooth execution of the entire surrogacy arrangement it is desired
everybody involved is aware of his or her role. To ensure this they can be provided with
some counselling sessions in this regard. It was found in the survey that 92 per cent IVF
clinics/doctors used to provide guiding and counselling sessions to both the parties in
254
order to tackle the emotional instability problems during the gestational period as well as
after the birth of the child. 8 per cent told that they occasionally provide such session i.e.
need based (Table 6.11 and Figure 6.11)
Table 6.11
Provision of counselling sessions by IVF clinics
S.No. Response Frequency % age
1. Always 46 92%
2. Occasionally 04 8%
3.
4.
Never
Refer them to professionals
Nil
Nil
0%
0%
Total 50 100%
Figure 6.11
Provision of counselling sessions by IVF clinics
0
10
20
30
40
50
60
70
80
90
100
Always Occasionally Never Refer them to
professionals
92
80
0
255
12. Custodians of the child to be born if the intended parents are incapable
It is a matter of concern if intended parents at any stage of the surrogacy
arrangement show their incapacity (due to illness, death or some other inevitable reason)
to take the custody of the child then who should be made responsible to take the
responsibility of the child. A mixed response was recorded from legal experts during the
survey as shown in the table 6.12 and figure 6.12 below.
As the results show that most of them (35 per cent) are of the opinion that in case
of incapacity of intended couple to take the custody of the child, there should be a
guarantor or surety in the contract who can be made liable to take the custody of the
child. Though 32 per cent of them said the in such a case the custody should be given to
the surrogate mother, as being a mother she would take good care of the child. But if the
surrogate mother is doing it for commercial purpose it would not be in the best interest of
the child to be born to hand over the child to her as she may not want another child
because she might have a complete family and is more inclined towards the monetary
profits. In that case she may not be able to do the proper bringing up of the child. So the
provision of a guarantor in the surrogacy contract should be added in the draft of Assisted