Written by: Yvonne Ng and Qianyu Wang
Surrogacy is when a woman carries and gives birth to a baby for another person or couple.[1] The intended parent(s) would become the legal parent(s) to the child born through surrogacy.[2] This article seeks to explore the key legal issues of surrogacy through a comparative analysis between China and India. In China, surrogacy is strictly prohibited whereas India takes a relatively liberal approach towards this topic. Indian intended parents who have been married for five years can legally opt for a commercial surrogacy while surrogacy remains illegal and remains frowned upon in China.
The article will first compare the legal framework surrounding surrogacy in both countries, then critically analyse the most prominent moral issues surrounding surrogacy. Additionally, the article will debate the considerations on whether legalising surrogacy can be justified, along with the practical implications of prohibiting and legalising surrogacy respectively. Finally, the arguments for the necessity of incorporating surrogacy regulations in modern society will be explored.
1. Legal Framework
1.1 China: The prohibitive approach
Given the necessity of medical assistance during the surrogacy procedure, the Ministry of Health[3] published the Procedures on the Administration of Human Assisted Reproductive Technology (《人类辅助生殖技术管理办法》) in August 2001. Penalties are clearly written in Article 22, stipulating that any health institution involved in surrogacy would be given an admonition and a 30,000 RMB fine by the provincial health authorities. In particular, Article 3 of this regulation frames the scope of prohibition to include the sale of gametes, zygotes and embryos to be strictly prohibited, whereby medical personnel and establishments cannot perform any form of surrogate technology.
Additionally, to further support the Government’s strong stance on anti-abortion laws, the Ministry of Health issued four other regulations in 2001. These regulations, although further revised in 2003, conform with the stance that surrogacy and other related technologies such as stimulating ovulation to achieve multiple births and providing eggs for commercial purposes are strictly prohibited in China.[4] However, those who pay for surrogacy services overseas (i.e., outside China) could not be charged under local laws.
1.2 India: From free market to regulation
Two sets of guidelines currently apply to surrogacy in India. First, the National Guidelines for Accreditation, Supervision and Regulation of ART (assisted reproductive technology) Clinics in India, which prescribed the conditions that ART clinics need to comply with,[5] issued by the Ministry of Health and Family Welfare. The regulation was drafted by the Indian Council of Medical Research in 2005. It is important to note that this regulation is not considered to be legally binding.[6] However, many Indian fertility clinics claim to abide by it.[7]
The other set of guidelines are executive orders issued by various Indian federal ministries. Prior to 2015, foreign couples coming to India for surrogacy purposes were permitted and regulated; they need to obtain a surrogacy visa and an exit visa after the surrogacy transaction is concluded. However, in 2015, the Ministry of External Affairs and Health banned surrogacy by foreigners. Commercial surrogacy continues to be lawful for intended parents who are Indian citizens.[8]
2. Moral Issues
It has commonly been accepted that the morality of surrogacy is a contentious problem. As Marway noted, surrogacy brings ‘a wealth of complex ethical issues’,[9] which is partly why different countries have vast discrepancies in this area of law. This part of the essay will explore two of the most prominent ethical considerations surrounding surrogacy: gender and exploitation.
2.1 Gender
Surrogacy is gendered in nature. From a biology standpoint, a surrogate has to be a person with the ability to gestate and give birth - often a woman, which triggers significant feminist concerns, especially relating to bodily autonomy, vulnerability, inequality and rights as argued by Marway.[10]
For instance, surrogate mothers may find it hard to maintain their bodily autonomy when she is carrying a baby for another person or couple. During the surrogacy process, it is easy to regard the woman carrying the baby as just a vessel and not a human being.[11] Various dietary requirements and exercise regimes are usually imposed on surrogates, most importantly, there would sometimes be medical examinations conducted to surrogates against their will, which seriously violate bodily autonomy of the surrogate but arguably necessary during the surrogacy process.[12] The balance between the two can be difficult to find.
Marway also raised feminist concerns regarding intended parents. Unnecessary gendered social expectations such as believing breastfeeding is what ‘real’ mothers do, can cause additional anxiety for new parents.[13]
2.2 Exploitation
Surrogacy law varies among different jurisdictions, which presents the opportunity to exploit legal loopholes, intended parents, and most importantly - surrogates.[14] For example, Scherpe and Fenton-Glynn identify western countries are mostly ‘receiving jurisdictions’ regarding surrogacy; couples often turn to international surrogacy to have a child.[15] On the other hand, eastern countries are often destinations for surrogacy tourism, places that provide surrogacy services, due to permissive legal rules or sometimes the absence of legal rules in this area.[16] The imbalance of wealth and income between these two types of countries is also a driving force for exploiting women in underdeveloped countries.[17]
Marway argues that surrogacy arrangements are necessary in every country to limit and ultimately prevent exploitation during the surrogacy process.[18] However, given the inevitable difficulties of obtaining global agreement, exploitations in the surrogacy industry would still be present.
3. Surrogacy legal rules: prohibiting or legalising?
Following, this part of the article would elaborate on the justifications for prohibiting or legalising surrogacy in the context of compensated surrogacy, where the surrogate receives compensation for the reproductive care she provides, including payment of money or other benefits such as reimbursement of reasonable direct expenses.[19] Commercial or compensated surrogacy is generally categorised into two types. A traditional surrogacy involves artificially inseminating the surrogate’s own egg with the intended father’s or donor’s sperm.[20] Contrastingly, gestational surrogacy involves the surrogate carrying a baby that is conceived through fertilising the egg of the intended mother or a donor with the sperm of the intended father or a donor.[21] Thus, the surrogate has no genetic connection in the gestational surrogate but is the biological mother of the baby in a traditional surrogate. Intended parents tend to prefer gestational surrogacy as it is easier for the surrogate to part ways with the baby.[22]
3.1 India
Proponents of surrogacy may argue that surrogacy should be legalised so as to cater to a specific category of people such as allowing homosexual couples who wish to have their own children or married couples with medical or fertility issues.[23] Compensated surrogacy in India began with the commissioning of India’s first surrogate in 1997.[24] From then on, thousands of couples travel to India for surrogacy where there is a lack of red tape and thus, allowing the process to be cheap, easy and hassle-free. India eventually developed into a global hub for surrogacy. In 2002, commercial surrogacy was legalised in India as a part of the government’s plan to promote medical tourism – a billion-dollar industry.[25]
Initially, the Indian government did very little to establish a regulatory framework to govern the ‘surrogacy industry’.[26] However, India eventually recognised the dangers of becoming a ‘surrogacy hub’ as its medical tourism industry is entirely unregulated, raising serious concerns about the ethics of surrogacy in India such as exploitation of women. After the 2015 ban by the Indian government, foreigners were barred from engaging surrogacy in India.[27] This ban would mean better regulation and monitoring of surrogates in India.
Justifications against compensated surrogacy in India include the fear of commodifying surrogacy and the disapproval of surrogacy agreements by commercialising women’s wombs, especially in rural parts of India.[28] In these rural areas, surrogates are easily exploited due to financial desperation. Due to the lack of informed consent, these women were easily convinced to proceed with the surrogacy without full understanding of the repercussions of the procedure.[29] An ethical concern is that a woman cannot truly consent to giving up her maternal rights and handing over her baby at birth because she does not understand the strength of her bond with the child. Unregulated surrogacy led to adverse health consequences, exploitation and an increasing consensus that surrogacy agreements in India lacked informed consent and were generally exploitative.[30] Moreover, there is a possibility that there could be psychological harm to the child when they learn of how they were bought through a transactional manner. According to Arvidsson et al., a surrogate mother is judged for breaking the moral code as she is a ‘bad mother’ for selling her child, treating her unborn child as a transaction.[31]
This led to a successful ban in 2015 and a further Surrogacy (Regulation) Bill was passed eventually in 2018.[32] Noticeably, the Bill prohibits commercial surrogacy but allows altruistic surrogacy. Altruistic surrogacy does not involve any monetary compensation to the surrogate mother other than insurance coverage and relevant medical expenses.[33] The Bill further tightens the criteria to meet in order to qualify for surrogacy. For instance, the Bill states that the intending couple must be Indian citizens and have been married for at least five years with at least one year being infertile.[34] Moreover, the surrogate mother has to be a ‘close relative’ who has been married and has had a child of her own.[35] However, the Bill does not define the term ‘close relative’.
Furthermore, it has been argued that it is ironic that Indians are engaging in the practice of surrogacy when nearly 12 million Indian children are orphans.[36] The difficulty lies in the fact that adopting a child in India is an arduous, complicated and lengthy procedure. The Indian Penal Code lacks comprehensive adoption laws to all its citizens, irrespective of the religion or the status of their citizenship as Non-Resident Indian (NRIs), Persons of Indian Origins (PIOs) or Overseas Citizens of India (OCIs).[37] As a result, they have to resort to options of IVF or surrogacy.
3.2 China
On the other hand, in China, there is a lack of clear statutory regulations governing the area of surrogacy, which could lead to unwanted repercussions such as illegal, forced and unregulated surrogacy procedures.[38] Proponents of not legalising surrogacy in China have reasoned that the law may overstep its boundaries and end up sanctioning the alteration of the traditional family structure, where the child has three parents.[39] Yet, leaving this area in society completely unlegalised or unregulated could possibly create a dangerous ecosystem of having more poor surrogates serving the rich intended parents than rich surrogates serving poor intended parents.[40]
Culturally, commercial surrogacy has come to be viewed and criticised as immoral in China.[41] While many prefer it to be outlawed in China, the Chinese society have culturally celebrated the tradition of having at least a son to ‘carry on the bloodline of the family’.[42] Chinese law does not explicitly prohibit or permit surrogacy practices. With the vagueness of regulations around commercial surrogacy in China, more couples have resorted to surrogacy in the past decade, which currently functions in a grey market (i.e., obtaining surrogacy procedures through channels that are not authorised by the government).[43] Regardless of the legislation, the publications by the Ministry of Health only carry out administrative sanctions, where the intended parents and surrogate mother will not bear any criminal liabilities.[44]
Overall, Ding concludes that while the court still tends to have a negative attitude towards surrogacy in these cases, the application of surrogacy laws in litigations in China is inconsistent and hence, there is a strong necessity for China to incorporate surrogacy regulations so that loopholes in surrogacy contracts would not be exploited.[45]
[1] ‘What is Surrogacy’ (NHS, January 2018) <https://mft.nhs.uk/app/uploads/sites/4/2018/04/What-is-Surrogacy-January-2018.pdf> accessed 26 February 2021. [2] ibid. [3] The National Health and Family Planning Commission replaced the Ministry of Health on 17 March 2013. [4] Lei Shi, ‘Surrogacy in China’ in Jens M. Scherpe et al.(eds), Estern and Western Perspectives on Surrogacy (Intersentia 2019) 360. [5] Alice George and Aviral Chauhan, ‘National Guidelines for Accreditation Supervision and Regulation of ART Clinics in India’ (India Corporate Law, 1 April 2019) < https://corporate.cyrilamarchandblogs.com/tag/national-guidelines-for-accreditation-supervision-and-regulation-of-art-clinics-in-india/> accessed 24 February 2021. [6] ibid. [7] Prabha Kotiswaran, ‘Surrogacy in India’ in Jens M. Scherpe et al.(eds), Estern and Western Perspectives on Surrogacy (Intersentia 2019) 468. [8] ibid, 470. [9] Herjeet Marway, ‘The Ethics of Surrogacy’ (University of Birmingham, 27 September 2018) <https://www.birmingham.ac.uk/news/thebirminghambrief/items/2018/09/the-ethics-of-surrogacy.aspx#:~:text=Surrogacy%20is%20often%20thought%20to,%2C%20payment%2C%20exploitation%20and%20inequality.> accessed 26 February 2021. [10] ibid. [11] Joanne Ramos, The Farm (Penguin 2019) 176. [12] Yumei Wu and Caihua Li, ‘Ethical Reflection on Surrogate’ [2016] Jiangsu University of Science and Technology: Social Science Edition 83, 86. [13] Marway (n 9). [14] ibid. [15] Jens Scherpe and Claire Fenton-Glynn, ‘Eastern and Western Perspectives on Surrogacy - An Introduction’ in Jens Scherpe et al.(eds), Estern and Western Perspectives on Surrogacy (Intersentia 2019) 1-2. [16] ibid. [17] Stephen Wilkinson, ‘The Exploitation Argument against Commercial Surrogacy’ [2003] Bioethics 169, 169. [18] Marway (n 9). [19] Cornell Law School, International Human Rights Policy Advocacy Clinic and National Law University, Delhi, ‘Should Compensated Surrogacy be permitted or prohibited?’ Cornell Law Faculty Publications 1551 [20] Kumar et al., ‘Genetic and Gestational Surrogacy: an Overview’ College of Pharmacy, India Walailak (2012) 9(3): 189-193 [21] ibid [22] ibid [23] The Straits Times, ‘Should commercial surrogacy be legalised?’ <https://www.straitstimes.com/opinion/should-commercial-surrogacy-be-legalised> accessed 18 February 2021 [24] Anurag Chawla and Normann Wizleb, ‘Surrogacy in India: Strong Demand, Weak Laws, in surrogacy, law, and Human Rights’ (2015) 176-178 [25] ibid [26] ibid [27] S. Rudrapra, Discounted Life: The Price of Global Surrogacy (Orient BlackSwan, New Delhi, 2015) p.5-10 [28] M Chang, ‘Womb for rent: India’s Commercial Surrogacy’ Harvard Law Review (2009) 31, pp.11-12 [29] ibid [30] ibid [31] Arvidsson et al., ‘Surrogate mother – Praiseworthy or stigmatised: A qualitative study on perceptions of surrogacy in Assam, India’ Global Health action (2017) Vol. 10 pp.1-9 [32] The Surrogacy (Regulation) Bill 2016 [33] Deomampo, Transnational Reproduction: Race, Kinship, and Commercial Surrogacy in India (NYU, New York, 2016) p.238-240 [34] The Surrogacy (Regulation) Bill 2016 [35] ibid [36] Indian Journal of Community Medicine, ‘Surrogacy: Ethical and Legal issues’ (2012) 37(4): 211-213 [37] ibid [38] Chunyan Ding, ‘Surrogacy Litigation in China and Beyond’ Journal of Law and Biosciences, pp.33-35 [39] ibid [40] Qian Tang, ‘Surrogacy in China: Public Opinion, litigations, and court ruilings’ Asian Social Science (2019) 15(10) 84 [41] ibid [42] Yang Hu & Jacqueline Scott, ‘Family and Gender Values in China: Generational, Geographic, and Gender Differences.’ Journal of Family Issues 4 [43] ibid [44] Vera Raposo and U Sio Wai, ‘Surrogacy in Greater China: The Legal Framework in Mainland China’ Pacific Basin Law Journal, 34(2) 145 [45] Ding, Surrogacy Litigation in China and Beyond, pp.41-43