Liberation or Exploitation: Commercial Surrogacy and the Indian Surrogate

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I. INTRODUCTION

Commercial surrogacy in India is currently estimated to generate more than USD2 billion in revenue annually. (1) The procedure that became legal in India in 2002 is different from other countries which have adopted the same practice in one very critical way--India does not strive to provide a rare solution for infertile couples, but instead seeks to maintain hegemony in an increasingly viable industry. (2) This booming market comes at a dangerous time because India has no laws in place to protect the rights of the surrogate. (3) The Indian Government has put forward a bill to legally codify the use of assisted reproductive technologies (ARTs), but this bill has neither become law nor contains essential provisions needed to protect the rights of surrogates. (4) This piece will analyze those failures in light of relevant international treaties to which India is a party, and identify key provisions that must be included in any legislation enacted by the Indian government in order to adequately protect surrogates against human rights abuses. (5)

II. INTERNATIONAL NORMS AND SURROGACY

Currently, no international treaty exists to regulate the practice of surrogacy around the globe, which results in many complex questions of private international law between states. (6) Even within the United States, surrogacy laws differ from state to state, creating complicated legal situations. (7) In many countries, commercial surrogacy is completely banned, while in others, such as India and Ukraine, it remains highly unregulated, resulting in commercial surrogacy tourism. (8) Women in countries with limited regulations, often nations with very poor populations, will enter into commercial surrogacy arrangements that often violate their rights as women and workers as recognized under international treaties and norms. (9) These international treaties should serve as a framework in evaluating the rights and treatment of these women in underdeveloped, unregulated nations. (10)

While no international treaty currently regulates surrogacy, and in particular the treatment of women as surrogates, various international treaties have specifically recognized and promoted women's rights over the last thirty years. (11) Examples include the right to be free from all forms of discrimination, the right to adequate health care, the right to a family, and the protection of reproductive rights. (12) In countries where commercial surrogacy is allowed, these basic fundamental rights, as enshrined in multiple international treaties and conventions, should be protected by domestic law and regulations. (13)

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted by the United Nations in 1979 sheds significant light on the need to address women's rights on a global scale. (14) The Convention broadly asserts to protect women's cultural, economic and social rights. (15) The Convention takes particular notice of the right of pregnant women to be free from discrimination. (16) The Convention requires that States take "all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men." (17) More particularly, the Convention seeks to ensure for women "the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction." (18) Article 16 of the Convention further requires states to "take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations." (19)

In addition to the Convention, the International Covenant on Civil and Political Rights (ICCPR) plays a vital role in promoting human rights as they regard commercial surrogacy. (20) In 1976, the United Nations adopted the ICCPR, recognizing the most basic human rights, such as the right to life, as fundamental rights shared by humanity as a whole. …