Chanakya IAS Academy Blog

Relevance and use of the article in UPSC prelims and mains examination:Dear aspirants here is a social issue please read the issue on all parameters.According to fundamentals of economics a market works on the free forces of demand and supply but in case of some social cases the theory fails and the intervention is necessary by government and an regulation is required . In an attempt to protect the welfare of surrogate mothers, the Indian government has proposed to introduce legislation that will ban commercial surrogacy in the country. This article, addresses the threats that are associated with the welfare of surrogate mothers and argues that a ban would compromise their interests further as it would inevitably lead to the emergence of an illegal market for such transactions.

Introduction:

  • The Ministry of Health and Family Welfare in India has recently proposed a ban on surrogacy for commercial purposes. Only altruistic surrogacy will be permitted where the surrogate mother is a “close relative” of the intending parents.
  • Given the nature of the transactions in the surrogacy market, government intervention in the market for surrogacy was, indeed, required since, at the moment, the only guidelines available are those of the Indian Council of Medical Research (ICMR), which are not legally enforceable.

There are various reasons why commercial surrogacy has come under a cloud.

  • These are related to the welfare of the surrogate mother (SM), the intended parents (IP) and the unborn child (Rimm 2009).
  • Issues related to the SM. The main fears are:
    • Exploitation by third parties,
    • Lack of fully-informed consent, and
    • Threats to the mother's mental and physical health during and after pregnancy.
  • As far as the IP are concerned, problems may arise if the SM refuses to part with the baby after delivery as the case of Baby M demonstrated.
  • The difficulty recently faced by British IP in getting a passport for their surrogate baby highlights issues related to the welfare of the child (Basu 2016).

Exploitation

  • The market completely fails to uphold the principles of medical ethics.
  • More insidiously, exploitation may occur due to the economic circumstances of the SM and, hence, her weaker bargaining position relative to the wealthier IPs.
  • Clearly, SMs belong to vulnerable sections of the population and, even if they were not coerced by anyone, their economic status might have compelled them to enter the transaction. The question we have to ask is whether it is just surrogacy that they would have avoided had their economic circumstances been better.
  • There exist many occupations – sweepers, scavengers, maids – that individuals would not take up if better opportunities were available to them. In this respect, surrogacy is no different from such occupations. In fact, some surrogates view what they do as relatively more respectable.
  • Giving informed consent for surrogacy requires that potential SMs have the ability to understand complex legal documents.
  • In these circumstances, it is very likely that the IPs and the agencies managing surrogacy would have superior education and economic resources which might be used to manipulate contractual provisions against the interests of the SMs.

Mental and physical health of surrogate mothers

  • Getting the SMs ready for pregnancy involves strong medical interventions and the “side effects of these medications can include hot flashes, mood swings, headaches, bloating, vaginal spotting, uterine cramping, breast fullness, light headedness and vaginal irritation”).
  • Probably, most of the SMs are not fully aware of the extent of the medical interventions and their side effects, placing their faith in the doctors who deal with them.

Ban vs. better regulations(The alternative to banning is more effective regulation.)

  • The question that must be answered is whether banning surrogacy will protect potential SMs from exploitation.
  • The problem with banning is that the activity being banned is, generally, forced underground. A ban on surrogacy markets will likely face a similar fate and it requires little imagination to realise that the interests and welfare of SMs will be even more threatened in the banned markets.

Will better regulations protect the interests of all parties to the transaction,

  • Even with a well-established regulatory framework, it must be remembered that incompleteness of contracts could impose severe hardships on SMs and even IPs.
  • Incompleteness of contracts refers to the inability to foresee all contingencies that may arise in a transaction as well as to specify the action that each party must take in each possible contingency.
  • In addition, one must guard against opportunism – such as lying, cheating as well as incomplete or distorted disclosure of information – as one more obstacle to writing complete contracts.

Some solutions(preliminary thoughts for regulating the surrogacy market)

  • The government, with all the legal resources at its command, must draw up a model surrogacy contract that must be used in every surrogacy transaction. Given the problems with writing complete contracts, such a model contract may also be incomplete but, at least, not willfully so.
  • A minimum payment must be determined for the SM. The entire payment from the IPs must be placed in an escrow account at the time of signing the contract.
  • Given the spread of the Pradhan Mantri Jan Dhan Yojana money in the escrow account should be transferred, as per a predetermined schedule, to the SMs bank account with the final payment being made after the handover of the baby.
  • Details of the SM should be linked to her Aadhaar Card which should include all relevant information, especially about previous surrogacies.

conclusion:

  • Of course, the above are merely some initial thoughts on how regulations may be employed to protect SMs. but there will be many more safeguards of a legal nature that will need to be put in place but these will not emerge till the government recognises that banning surrogacy will not achieve its objective of protecting Indian SMs.

Question:

Rather than banning surrogacy markets. Government needs to immediately regulate this market and ensure the safeguards of the people who are involved in this market. Discuss the issue wit pros and cons related to it.

Suggested answer:

  • Reasons why commercial surrogacy is under talks.
  • Concerns related to this issue.
  • How can be safeguard the interests of the involved parties.
  • 4Ban vs regulation.
  • Solutions and conclusions.

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