Liberation or exploitation: commercial surrogacy and the Indian surrogate.

• Author: Vincent, Caroline

1. INTRODUCTION

   Commercial surrogacy in India is currently estimated to generate more than USD2 billion in revenue annually. (1) The procedure that became legal in India in 2002 is different from other countries which have adopted the same practice in one very critical way--India does not strive to provide a rare solution for infertile couples, but instead seeks to maintain hegemony in an increasingly viable industry. (2) This booming market comes at a dangerous time because India has no laws in place to protect the rights of the surrogate. (3) The Indian Government has put forward a bill to legally codify the use of assisted reproductive technologies (ARTs), but this bill has neither become law nor contains essential provisions needed to protect the rights of surrogates. (4) This piece will analyze those failures in light of relevant international treaties to which India is a party, and identify key provisions that must be included in any legislation enacted by the Indian government in order to adequately protect surrogates against human rights abuses. (5)

2. INTERNATIONAL NORMS AND SURROGACY

   Currently, no international treaty exists to regulate the practice of surrogacy around the globe, which results in many complex questions of private international law between states. (6) Even within the United States, surrogacy laws differ from state to state, creating complicated legal situations. (7) In many countries, commercial surrogacy is completely banned, while in others, such as India and Ukraine, it remains highly unregulated, resulting in commercial surrogacy tourism. (8) Women in countries with limited regulations, often nations with very poor populations, will enter into commercial surrogacy arrangements that often violate their rights as women and workers as recognized under international treaties and norms. (9) These international treaties should serve as a framework in evaluating the rights and treatment of these women in underdeveloped, unregulated nations. (10)

   While no international treaty currently regulates surrogacy, and in particular the treatment of women as surrogates, various international treaties have specifically recognized and promoted women's rights over the last thirty years. (11) Examples include the right to be free from all forms of discrimination, the right to adequate health care, the right to a family, and the protection of reproductive rights. (12) In countries where commercial surrogacy is allowed, these basic fundamental rights, as enshrined in multiple international treaties and conventions, should be protected by domestic law and regulations. (13)

   The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted by the United Nations in 1979 sheds significant light on the need to address women's rights on a global scale. (14) The Convention broadly asserts to protect women's cultural, economic and social rights. (15) The Convention takes particular notice of the right of pregnant women to be free from discrimination. (16) The Convention requires that States take "all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men." (17) More particularly, the Convention seeks to ensure for women "the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction." (18) Article 16 of the Convention further requires states to "take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations." (19)

   In addition to the Convention, the International Covenant on Civil and Political Rights (ICCPR) plays a vital role in promoting human rights as they regard commercial surrogacy. (20) In 1976, the United Nations adopted the ICCPR, recognizing the most basic human rights, such as the right to life, as fundamental rights shared by humanity as a whole. (21) Article 1 lays out the fundamental principle that all people have "the right of self-determination." (22) The ICCPR holds that by virtue of the right of self-determination, people can "freely determine their political status and freely pursue their economic, social and cultural development." (23) Additionally, people have the right to dispose of their natural wealth and resources based upon the principle of mutual benefit. (24) As a result, it is prohibited under the ICCPR for someone to be required to perform compulsory labor. (25)

   Alongside the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into effect in 1976. (26) Ratified by 160 states, the ICESCR is a comprehensive, globally accepted international instrument on workers' rights. (27) The ICESCR recognizes the right of all people to choose work freely and to work under just and humane conditions. (28) Most notably, the ICESCR requires "safe and healthy working conditions." (29) Further, parties to the ICESCR must recognize "the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions." (30)

3. Commercial Surrogacy in India

   1. The Indian Surrogate

      India's commercial surrogacy market was valued at approximately USD2.5 billion in 2012. (31) The cost of utilizing a surrogate is estimated at USD 12,000, which includes medical expenses and the surrogate's fee. (32) The same procedure in the United States can cost USD200,000. (33) While India may have become one of the world's largest economies, poverty remains rampant. (34) In 2010, thirty-three percent of the population was living below the international poverty line of USD1.25 a day, with an average national annual income of USD1,260 per person. (35) By these simple estimates, it is no wonder why so many come to India from across the world to pursue surrogacy, and why so many Indian women are willing to carry another's baby. (36)

      This somewhat novel business opportunity comes with its own costs. (37) On a macro level, critics argue that promoting commercial surrogacy in a country with no regulatory oversight may lead to "baby farms." (38) India is already home to other human rights abuses, making exploitation all the more likely. (39) On a micro level, surrogacy contracts place many of the surrogates' health in peril. (40) Notably, many medical practices in the surrogacy clinics, such as implanting more than four embryos in a surrogate and requiring surrogates to undergo nonemergency caesareans at the direction of the commissioning parents, are universally seen as bad for the health of the mother. (41) Additionally, the surrogate's psychological well-being is threatened when forced to relinquish the child to the commissioning parents, absent receiving any counseling throughout their course of employment, or after giving birth. (42)

   2. India's Surrogacy Regulation

      Since the legalization of surrogacy in India promoted medical tourism, the country has failed to enact any laws regulating the practice. (43) Most...