Devangshu Datta: Whose baby is it anyway?


Devangshu Datta / New Delhi January 05, 2008

Take a sperm donor, add an egg donor, mix in appropriate lab conditions and rent a womb for nine months. That’s the recipe for a surrogate baby. Of course, there may be some confusion when it comes to deciding who the parents of the said infant are.

There are at least three lead players, maybe more, involved in each surrogate birth. The one who has borne the child to term may not have contributed DNA (unless she’s also the egg-donor); the “parents” who rented the womb may not have contributed DNA, either!

There have been several legal cases around this. It is a classic instance of the law lagging behind the technology. Test tube baby creation was reduced to assembly line efficiency very recently — proof of concept only occurred in 1978.

Surrogate parenthood involves expensive procedures but it is now entirely medically viable. That makes it an option for wealthy people with fertility problems and no desire, for whatever reasons, to adopt. Therefore, there’s a market.

Wealthy couples may pay for the egg, the sperm, the medical procedures, and the services of the surrogate mother. Do they own the baby? Even if a couple has donated sperm and ova (possible but not necessary or even common), the womb belongs to a third person. In many cases, five different people are involved — two donors, one surrogate mother and two “parents” who pick up the tab.

In many nations, including EU members like France and Germany, commercial surrogacy is illegal. In others, it is a gray area unaddressed in law. It is recognised in a few places. But even where surrogacy itself is recognised, surrogacy contracts may be unenforceable. That is, if the woman who has borne the child decides not to hand “her” baby over, she cannot be compelled to do so. South Africa allows commercial surrogacy but each contract must be cleared in court.

Indian law doesn’t mention surrogacy at all, let alone commercial surrogacy. In fact laws pertaining to maternity go no further than banning baby food ads and the granting of maternity leave. Also, India has convoluted adoption laws dating back to the Doctrine of Lapse. Furthermore, the adoption laws are different for different religions. So, there is no easy way to ease around surrogacy and simply adopt a contracted-for baby.

Nevertheless, there is a thriving Indian surrogate industry. The milk capital of Anand is also billed as the surrogate-mom capital of the world. The babies are mainly outsourced by NRIs, who find labour arbitrage operates just as efficiently in this as in other tech domains. An Indian surrogacy costs one-tenth or less than the going US rates.

This means cross-border implications could confuse matters even more, if that is possible! US Green card holders, for example, cannot return with an adopted child to the US unless they reside at least two years in the nation from where they are adopting.

If adoption is out, surrogacy contracts are unenforceable, and notions of biological parenthood stretched to the max by the technology, there could soon be many babies wandering the Earth in search of visas. Not to mention paternity and maternity suits targeting sperm and egg donors.

The Indian government is believed to be planning to draft laws to address this. Forgive me for wondering how many years that legislation will take to draft and pass, and whether it will meet the needs at all.

The concept of commercial surrogacy may make you uneasy. But in an ideal case, everybody concerned is happy. And, if surrogacy is a de facto industry, it needs safeguards to protect its workers, like any other industry. It needs standard, enforceable employment contracts. Otherwise, there is room for abuse and unhappiness.

This is one of the oddest examples of economics making a rendezvous with science-fiction and running hand-in-hand down a legal maze. That’s a horribly mixed metaphor but it is a rather messy situation. It could lead to smelly diapers all round.


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