I. Outsourcing
It makes good business sense to outsource operations. It cuts down on costs, delivers lower prices to consumers, and brings job opportunities to poorer countries. So why not also outsource pregnancy? India, already known as an outsourcing base, is also the growing center for surrogate pregnancy. India is hardly restricted through legislation, as there are no laws that govern surrogacy.[1] No part of the fertility industry is regulated, although the Indian Medical Council does issue nonbinding guidelines for involved parties.[2]
Since 2002, commercial surrogacy has been legal in India.[3] The only laws that India currently has in place concerning women and their infants address maternity leave and breastfeeding.[4] There is proposed legislation to help regulate surrogate pregnancy, but the government has been slow to act.[5] Already, outsourcing surrogate pregnancy, or “reproductive tourism” has become a booming business of over 445 million dollars a year.[6]
II. The Surrogacy Process
There are many different reasons why a couple might choose to use an Indian surrogate. Surrogacy is undoubtedly an expensive process. Most couples that struggle with infertility can end up spending tens of thousands of dollars on procedures such as in-vitro fertilization and surrogacy. The primary allure of finding a surrogate mother in India is the fact that medical procedures in India are priced much lower. Even with the cost of foreign stay and travel, the surrogacy process is still a fraction of the cost in the U.S. Surrogacy may cost roughly $12,000 in India while the same procedure may cost up to $70,000 here.[7] Other factors that make surrogacy in India attractive are high quality healthcare and the availability of English-speaking physicians.[8] Choosing surrogacy through a third party clinic in India also gives couples a “guarantee” that the surrogate is taking every precaution with the pregnancy. [9]
The women who volunteer as surrogates are primarily motivated by the monetary compensation that they receive. They earn anywhere from 3000 to 6000 dollars, which can be more than some people in the region make in many years.[10] The women are encouraged to think of providing a fetus “shelter” rather than as their own child. This is reinforced by the fact that none of these fetuses are genetically related to the surrogate as a surrogate’s own eggs are never used.[11] Many of the women concentrate on what they would do with the money, such as buying a house or providing for their children.[12] The surrogate women also feel as they are doing a good deed, by blessing a couple with a child.[13]
Women who will serve as surrogates are carefully screened.[14] Only women who already have children and are between the ages of 18-45 may be considered for surrogacy.[15] This is to ensure that the women know the physical and mental toll that a pregnancy may take.[16] Surrogates are housed in dormitory like settings within the clinics and are carefully monitored.[17] The women are given constant medical care while meals, counseling, and activities are provided for them.[18] To avoid possible conflict, surrogates are usually required to sign contracts agreeing to give up the baby after the birth.[19] Parents are required to provide medical expenses and need only be present at the time of in vitro fertilization and at the time of the birth.[20] Most babies leave their surrogate mothers within one to two days after birth.[21]
III. U.S. and Illinois Surrogacy Law
In the U.S., there is no uniform law that governs surrogate pregnancy. The states all vary widely in their treatment of surrogate pregnancies and on the contracts that bind parties. One of the worst situations that a couple could find themselves in is that the surrogate not renounce her claims to the baby.[22] Some states provide surrogates with a window of opportunity in which to claim the child, which can lead to custody battles.[23] Contracts may also be considered void in some states, as many surrogate mothers may change their minds once they give birth. [24] There are also further obstacles to finding a surrogate. Many states also do not allow compensation for surrogacy, because it may be considered the sale of a child.[25] In short, surrogacy laws in the U.S. are varied and in a muddled state of affairs. The wide disparity in state laws has made it difficult to determine what should be the law on surrogacy within the U.S., let alone on surrogate pregnancies conducted outside its borders.
Illinois recently passed the Gestational Surrogacy Act, the purpose of which was to create “standards and safeguards are meant to facilitate the use of this type of reproductive contract in accord with the public policy of this State”.[26] The Act requires that there is medical certification of a need for surrogacy and sets out surrogacy requirements for a contract.[27] In addition to age and experience requirements, the surrogate is also subject to a medical and psychological evaluation and must have had independent legal counsel.[28] The unusual part of the Gestational Surrogacy Act is that it allows the parent child legal relationship before birth, so that there is no opportunity for a surrogate to lay claim on the child.[29] This relatively simple provision removes some of the fears that a couple may have in deciding on surrogacy, and tries to simplify potential legal issues about parentage.
IV. Future Considerations
Surrogate pregnancy is a rising trend that will most likely only gain in popularity. While there are many positive things to be said about outsourcing pregnancy, there are also other issues to be considered. The most difficult issues to face when considering outsourcing surrogate pregnancy are and will continue to be the ethical ones. Pregnancy is a known health risk, especially in a country like India, which has one of the highest pregnancy-related deaths.[30] While surrogacy can be viewed as a paid job, it may still be unethical to think of the mental and physical strain of childbirth as a simple rental of a human body. Some would argue that outsourcing pregnancy is exploitation at it its worst.
On the other hand, surrogacy is the only option for some childless couples. With the exorbitant costs of in vitro fertilization and other treatment methods, India seems like a dream come true for some couples. Both sides do benefit, and as long as standards are in place outsourcing surrogate pregnancy may seem like the best option. While the positives and negatives of outsourcing pregnancy can be much debated, it is clear that surrogacy should be quickly addressed not only in India but also in countries such as the U.S. that will have citizens hoping to use surrogacy services.
As often happens, laws are much beyond the pace of the changing world. As outsourcing pregnancy becomes more common, other countries including the U.S. will have to consider new laws on what surrogate pregnancy should mean and if it should even be allowed. Illinois has made a good start with the Gestational Surrogacy Act by considering the rights of surrogate mothers and the couples who contract with them. However, as surrogacy becomes a global issue, the U.S. will need to develop a comprehensive single policy. France for example has completely banned commercial surrogacy and Italy has outlawed almost every form of assisted reproduction.[31] While the U.S. as a cohesive country lacks legislation on surrogate pregnancy, as this new trend grows wider the government will have to develop law or policy; keeping in mind the ethical issues that this business raises.
S.K. Nanda, a former health secretary in Gujarat has stated, “It’s [surrogate pregnancy] a completely capitalistic enterprise”.[32] But is it?
[1]Henry Chu, Wombs For Rent, The Los Angeles Times, Apr. 19, 2006. www.latimes.com/news/nationworld/world/la-fg-surrogatelaapr19,1,397031.story
[2]Id.
[3]Sam Dolnick, Pregnancy Becomes Latest Job Outsourced to India, Usa Today, Dec. 12, 2007. http://www.usatoday.com/news/health/2007-12-30-surrogacy_N.htm
[4]Sumit Pande, Govt Plans New Laws to Curb Rent-A-Womb Rackets, The IBN Live, available at http://www.ibnlive.com/printpage.php?id=51753§ion_id=3.
[5]Id.
[6]Abigail Hasworth, Surrogate Mothers: Womb for Rent, Marie Claire, available at www.marieclaire.com/world/articles/surrogate-mothers-india.
[7]Id.
[8]Sudha Ramachandran, India’s New Outsourcing Business – Wombs, Asia Times, June 16, 2006. www.atimes.com/atimes/South-Asia/HF16Df03.html.
[9]Judith Warner, Outsourced Wombs, new york Times, Jan. 3, 2008. http://warner.blogs.nytimes.com/2008/1/3/outsourced-wombs/
[10]Id.
[11]Id.
[12]Dolnick, supra note 3.
[13]Warner, supra note 9.
[14]Hasworth, supra note 6.
[15]Id.
[16]Id.
[17]Warner, supra note 9.
[18]Id.
[19]Hasworth, supra note 6.
[20]Id.
[21]Chu, supra note 1.
[22]Id.
[23]Id.
[24]MODCON §24:19 Surrogate Parenthood – Subsequent Developments
[25]Id.
[26]750 ILCS 47 Gestational Surrogacy Act
[27]Id.
[28]Id.
[29]Id.
[30]Chu, supra note 1.
[31]Warner, supra note 9.
[32]Id.