Introduction
The concept of surrogacy has sparked significant debate across legal, social, and ethical forums, particularly from a human rights perspective. Surrogacy involves an arrangement where a woman, the surrogate, agrees to carry a pregnancy and give birth to a child on behalf of another individual or couple. The term “womb on rent” has gained traction, particularly in the context of commercial surrogacy, where financial transactions are involved. While surrogacy provides hope for childless couples or individuals who are unable to conceive, it also raises substantial concerns about human dignity, bodily autonomy, exploitation, and the commodification of the female body.
From a human rights lens, surrogacy can be viewed in two ways: as an empowerment tool for women with autonomy over their reproductive rights or as a form of exploitation, particularly for women from marginalized or economically disadvantaged backgrounds. This article will explore surrogacy, focusing on its human rights implications, including the legal frameworks, ethical dilemmas, and social concerns that arise from this practice.
Types of Surrogacy
Surrogacy is classified into two primary categories:
1. Altruistic Surrogacy: In altruistic surrogacy, the surrogate mother receives no financial compensation beyond medical expenses and other essential costs associated with the pregnancy. This type of surrogacy is typically arranged between close relatives or friends and is based on empathy and compassion.
2. Commercial Surrogacy: Commercial surrogacy, on the other hand, involves financial compensation to the surrogate mother. It is a contractual arrangement where a woman is paid for carrying the pregnancy to term. This type of surrogacy is more controversial as it raises ethical questions about the commodification of the female body and the potential exploitation of vulnerable women.
Legal Framework on Surrogacy
The legal status of surrogacy varies significantly across countries. Some nations completely ban commercial surrogacy, while others permit it with strict regulations.
- India
India was once known as a global hub for commercial surrogacy, attracting international couples
seeking surrogates due to relatively low costs and lenient legal restrictions. However, concerns over exploitation and unethical practices led to legislative changes. The Surrogacy (Regulation) Bill, 2020, prohibits commercial surrogacy while permitting altruistic surrogacy for infertile Indian couples. The law aims to prevent the exploitation of women, especially those from disadvantaged socio-economic backgrounds, who may be coerced into surrogacy due to financial pressures.
- The United States
The legal framework surrounding surrogacy in the U.S. is decentralized, with each state having its own surrogacy laws. Some states allow both altruistic and commercial surrogacy, while others ban surrogacy altogether. In states where commercial surrogacy is permitted, legal safeguards are in place to ensure the rights of all parties involved, including the surrogate, intended parents, and the child.
- European Union
In many EU countries, commercial surrogacy is banned due to concerns about commodification and human dignity. Countries like Germany, France, and Italy have strict laws against commercial surrogacy.
However, some countries, such as the UK, permit altruistic surrogacy under strict legal conditions. The ethical argument in Europe tends to favor the protection of human dignity and the prevention of exploitation.
Human Rights Concerns in Surrogacy
- Bodily Autonomy and Reproductive Rights: At the core of the surrogacy debate is the issue of bodily autonomy. A woman’s right to make decisions regarding her own body is a fundamental human right. Proponents of surrogacy argue that it is an exercise of a woman’s reproductive autonomy, enabling her to make informed decisions about renting her womb for financial compensation. However, this notion of autonomy is often contested, particularly in cases of commercial surrogacy where financial incentives may unduly influence a woman’s decision to become a surrogate, potentially undermining her free and informed consent.
- Exploitation of Vulnerable Women: Commercial surrogacy has often been criticized for exploiting economically vulnerable women. Many surrogates come from low-income backgrounds, and the financial compensation offered through commercial surrogacy can be tempting. Critics argue that these women may not have a genuine choice, as their financial circumstances may coerce them into surrogacy, leading to exploitation. This form of exploitation is seen as a violation of their dignity and human rights, turning women’s bodies into mere vessels for profit. The international surrogacy industry has been particularly controversial, with affluent couples from developed countries often seeking surrogates in developing nations, where laws are lax, and surrogates can be paid less. This dynamic has been described as “womb tourism,” where economically privileged individuals or couples exploit poorer women’s bodies for their reproductive services.
- Commodification of Women’s Bodies: The commercial surrogacy arrangement can lead to the commodification of women’s bodies, where the womb becomes a product that can be rented. This commodification undermines human dignity and reduces women to mere means of reproduction. Feminist critiques of surrogacy often highlight the risks of transforming reproduction into a commercial transaction, where the surrogate’s humanity is secondary to her function as a child-bearer.
- Children’s Rights: The child born through surrogacy also faces human rights concerns, particularly regarding identity, nationality, and parentage. In cases of international surrogacy, determining the legal parentage of the child can be complicated, especially if the surrogate mother lives in a country where surrogacy is illegal or where the legal framework is unclear. Moreover, children may face issues related to citizenship and nationality, depending on the laws of the countries involved. These complexities raise concerns about the child’s best interests, a fundamental principle under the United Nations Convention on the Rights of the Child (UNCRC).
Ethical Dilemmas in Surrogacy
Surrogacy, particularly commercial surrogacy, presents several ethical dilemmas. One of the primary concerns is the notion of informed consent. In many cases, surrogates may not fully understand the legal and medical implications of the surrogacy contract, particularly if they come from disadvantaged backgrounds. This raises questions about the adequacy of their consent and whether they are fully aware of the physical and emotional risks involved.
Another ethical issue is the psychological impact on surrogate mothers. Carrying a child to term and then relinquishing the child can have profound emotional consequences. While some surrogates may be prepared for this, others may find it difficult to detach from the child they carried, leading to emotional distress and long-term psychological trauma.
International Legal Frameworks and Human Rights Standards
Various international human rights instruments provide a framework for analyzing surrogacy from a human rights perspective:
1. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) emphasizes the need to protect women from exploitation and to ensure their reproductive rights. It underscores the importance of protecting women from being forced into surrogacy due to financial or social pressures.
2. The Universal Declaration of Human Rights (UDHR) enshrines the right to bodily autonomy and human dignity. Surrogacy practices that exploit women or commodify their bodies violate these principles.
3. The United Nations Convention on the Rights of the Child (UNCRC) places the child’s best interests at the forefront of all decisions. Surrogacy arrangements must ensure that the child’s rights to identity, parentage, and nationality are protected.
Conclusion
The practice of surrogacy, particularly commercial surrogacy, sits at the intersection of various human rights concerns, including bodily autonomy, exploitation, commodification, and the rights of children. While surrogacy provides a pathway for individuals and couples who wish to have children, it also poses significant ethical, legal, and social challenges.
From a human rights perspective, the key concerns include ensuring that surrogates are not exploited, that they provide fully informed consent, and that their bodily autonomy is respected. Moreover, the rights of the child born through surrogacy must be safeguarded, ensuring that issues of nationality, identity, and parentage are adequately addressed.
In the future, as surrogacy laws continue to evolve globally, the challenge will be to strike a balance between enabling reproductive freedom and protecting the human rights of all parties involved, especially women and children. Only by addressing these concerns can we ensure that surrogacy is conducted in a manner that respects human dignity and upholds the principles of justice and equality.
Contributed By: Diwanshi Arya (Intern)