Maybe baby: commercial surrogacy and the Subcontinent
Here in the UK we take a very conservative approach to surrogacy: it is illegal, for example, to advertise that you are seeking a surrogate mother, or that you are willing to work as one.
Such restrictions encourage an ad hoc, informal approach to surrogacy, adding a huge element of uncertainty to what is already a fraught transaction. Surrogacy arrangements have no status in UK law, so surrogate mothers can refuse to surrender their baby after the birth.
The commissioning couple can never be sure they will become parents.
The almost inevitable result has been the rise of multinational surrogacy arrangements. British couples struggling with fertility issues have taken their custom elsewhere, to countries with more permissive approaches to this very 21st Century spin on childbearing. India, for example, still has no surrogacy laws at all and a booming surrogacy market has sprung up on the Subcontinent in recent years, catering in particular to wealthy westerners.
A story published over the weekend in the Daily Mail took a long look at one couple who have turned toIndia: Britons Octavia and Dominic Orchard. After the birth of their first child, complications left Octavia unable to bear any more children naturally. She took the news very badly, telling the newspaper:
“I felt not only bereft, but completely worthless. I felt I’d let Dominic down….I’d failed as a woman.”
It is easy to forget that genuine pain and desperation frequently lie behind a couple’s decision to seek surrogacy, not the self indulgence sometimes insinuated by parts of the media.
Octavia and Dominic explored their options. They soon realised the uncertainties of surrogacy in the UK. Surrogate mothers remain the legal mothers of the children they have given birth to, unless and until the commissioning parents obtain a parental order.
The law in many other countries is similar to theUK. Elsewhere, for example the US, costs can be very high.
India, by contrast, neatly combines relatively affordable surrogacy clinics – the Orchards paid £20,000 – with a purely commercial approach.
The Orchards made their choice and an Indian woman living inHyderabadis now playing host to an embryo created from Mrs Orchard’s eggs and fertilised with her husband’s sperm. In other words, the couple are the full biological parents of the child.
The surrogate mother will receive between £3,000 and £6,000 when the child is born in November: a very large sum by local standards.
Mrs Orchard told the Mail:
“Her womb is just the receptacle in which it is being carried. Perhaps it sounds cold and rather clinical, but this is a business transaction. There is no altruism involved on the surrogate’s part: she is being paid to have our baby. It’s a contractual arrangement.”
After the birth Mr and Mrs Orchard will have to tackle the complex process of bringing the child home to theUKand having him or her recognised in law as their child. Under UK law, most surrogate children born abroad are effectively stateless until their parents apply for him to be registered as a British citizen. This is done on a case-by-case basis and can take months. The Orchards may have a long wait ahead of them in Hyderabad.
The couple will also have to apply for a parental order within the first six months of the child’s life. Parental orders grant the parents full status, completely remove the status of the surrogate mother, and provide a British birth certificate for the child. In multinational surrogacy cases, applications will usually also involve asking the government to retrospectively ‘authorise’ commercial payments made to the clinic and/ surrogate mother. This requires a time-consuming decision by a senior judge.
We explored some of the complexities surrounding surrogacy in a previous story . Clearly multinational arrangements add a whole new layer of complication to an already difficult situation and it is certainly testament to the desperation of the commissioning parents that they are willing to undergo such effort and expense in pursuit of their dream.
But, really, why do we place infertile British couples in this extraordinary position? Surely it is time to take a closer look at British surrogacy and adoption laws? At the moment surrogacy laws do place all the power in the hands of the surrogate, even if the child she is carrying is not genetically related to her. Even the surrogate’s husband retains the right to say no to a parental order! Whilst on the one hand one can understand the concerns of a woman who has carried and given birth to a child, on the other hand, with a strict time limit of six months in place for orders, it is quite easy to see the potential for blackmail and similar abuses. Such a situation seems quite at odds with most people’s understanding of the concept of surrogacy who are not directly involved.
I for example can see no reason for the law’s insistence that only a couple may apply for a parental order. What if the commissioning parents suffer a breakdown in their relationship between the initial arrangement and the birth? It could easily happen. There is nothing to stop a single person adopting a child.
Another question for us to ponder: is infertility the sole motivator for seeking a surrogate mother? I don’t find it difficult to foresee women eventually doing so to avoid becoming pregnant and interrupting their careers. This may already be happening in countries like the US.
Medical science moves quickly and the law seems to be struggling to keep up.
[Photo by Jenny Kaczorowski]
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31 Comments
KT on September 5, 2012 at 12:20 pm
Your absolute disregard for the mother-child bond is an abomination. Surrogacy should be illegal. I exploits poor & vulnerable women, and ignores the right of a child to be nurtured by their real mother, the one who gave birth. It is disgusting to create a baby just to give it away. You have no concerns for the child, just concern for how much money can be made on all the legal work. Seeing as not all people can actually gestate a baby, those who can should be given protected status so that baby poachers don’t steal their children and/or treat mothers like brood mares.
Marilyn Stowe on September 5, 2012 at 2:16 pm
KT
Interesting comments. The case refers to a woman who has donated her egg and her husband the sperm. The surrogate mother has no genetic relationship to the child whatsoever and so I disagree with you about the true parents of this child.
My suggestion is that the law should be changed so that anyone unreasonably witholding consent cannot prevent what to my mind seems like the logical outcome in the best interests of this child.
This isnt a case of endorsing abuse, far from it, its about appropriate law to prevent desperate couples travelling half way across the world to have their own child.
Marilyn
DT on September 5, 2012 at 5:35 pm
I think it’s high-time the law caught up with reality.
If a loving and caring couple can’t naturally have a child of their own, why shouldn’t they pay somebody to help them? For goodness sake, this is the 21st Century!
Yes – let’s start talking about this, get safe-guards put in place and regulate a practice that can give a childless couple a child. I’m all for it.
I don’t know where you’re coming from KT.
DT
Observer on September 6, 2012 at 1:18 pm
As a dad, I know exactly where KT is coming from, and I would only remind her to consider the father-child bond as well.
We throw around this term ‘best interests of the child’ as if we all know what that actually means. Amazingly, though, we do quite the opposite, and completely neglect a child’s feelings around these issues. Repeatedly! Never have adults been so absolutely selfish in the history of the world, and I can only attribute it to the way in which capital has so grotesquely infiltrated every single aspect of life.
Yes, the history of the world is a history of economic transactions, but you would have thought that we were becoming more humane about how they take place, and about the feelings of those who you are playing with like toys.
Observer on September 6, 2012 at 1:20 pm
I forgot to point out that this kind of subcontinental exploitation is just one of the many latest forms of colonialism that we Brits are so good at.
KT on September 6, 2012 at 1:55 pm
Why don’t you review the case of a woman who was accused of lying about her children. When DNA tests where done her DNA did not match 2 of her children. In another case a woman who needed a kidney transplant also had her DNA not match her children. These women had given birth to these children, but the DNA did not match. By YOUR definition and other misguided people who obsess with DNA these women would be declared not the mother of their own children. Being a mother should be defined by the woman who gives birth. All others are nothing but DONORS. If a person donates a kidney to another person, do they somehow own and control that other person? If a tree is planted in a yard and grows there, does the person who owns the yard own the tree or the person who planted it? You really have a disregard for bringing life into the world. For each and every person alive there is one and only one woman who brought that child into the world by sharing her body and nurturing the child. That person is the ONLY person who deserves the right to be called the real mother.
Here is the link to an article about DNA. http://leahlefler.hubpages.com/hub/Chimeras-Transplants-Babies-with-Different-DNA-and-Spider-Goats
By the way, we all share 99.9 of the same DNA so I would think the DNA is less special than risking your life in childbirth. Additionally, if people think that the mother is just a vessel and that if the donate gametes the child will not have any part of the mother, they are wrong. Their systems are shared and will likely have some of each others cells forever. Unfortunately the mother and child will be part of some big scientific and sociological experiment likely to prove harmful in generations to come. http://www.lastwordonnothing.com/2011/09/01/guest-post-part-of-me-forever/
I wonder what all of those hormones and the act of artificially creating life in a test tube will do to the human genetic code? There are already studies showing a shorter life expectancy and higher than average abnormalities in artificially created children. http://www.lifesitenews.com/news/archive/ldn/2010/oct/10101803
And what does all of this artificial manipulation do to the child psychologically. They must always wonder who gave birth/life to them and they will never know the normal bonding experience of a mother and child.
KT on September 6, 2012 at 1:58 pm
@DT if a child cannot have a child of their own it means that following in the words of Darwin, it is survival of the fittest. It means that those people have NATURALLY been deselected to reproduce. No one is saying that they are incapable of caring for a child, but there may be reasons that people are not having children, and doing things to artificially create humans could have goodness what repercussions for the human genome.
KT on September 6, 2012 at 2:14 pm
@DT that is parents that cannot have children naturally have some issue that prevents them from reproducing. That could be nature’s way of preventing whatever health problems they have from being passed on.
KT on September 6, 2012 at 2:19 pm
More for you on microchimerism causing disease. There is a directional flows of cells from mother to child during gestation. This flow can either help or hinder. In some children who have these maternal cells they cause certain autoimmune diseases. http://rheumatology.oxfordjournals.org/content/early/2012/01/22/rheumatology.ker430.abstract
As it is highly unlikely that tests are being performed on ivf children born of surrogates as of yet, I do foresee problems arising from the mixture of cells. Not always, but I could only imagine having genetics from 3 different people could end up causing autoimmune problems.
DT on September 6, 2012 at 5:10 pm
KT
I disagree with your views and if we really believed that survival of the fittest was right, then we’d do away with all medications and the NHS.
Furthermore, Hitler’s ‘Final Solution’ was, in-part about getting rid of those so-called ‘inferior’ humans and just look at how abhorrent that was. I think we need to be very careful following the ‘de-selection’ theory.
DT
Observer on September 6, 2012 at 8:34 pm
You are both talking as if dad’s have no say and are completely irrelevant in this matter. And you’re both committing the fallacy that arises from the language of capital. A child is not something owned. A child is not an object, not a possession or commodity. We need to get away from thinking of human beings in terms of things, standing reserves. A child is a relationship and a responsibility, not something you objectify. That’s what your instrumental Western capitalist mindset has blinded you to, and that’s why you will get nowhere with the pseudo-debate that you are having.
But at least KT strikes me as someone who is trying to imagine how miserably confusing it must be for a child to be manufactured through commercial surrogacy.
I'd rather not say on September 6, 2012 at 8:51 pm
Observer
I am well aware as to parents’ “rights”, but let’s not make this all about ‘dad’ again. Let’s not make ‘dad’ a victim please?!
Of course a child is not a ‘possession’, and nobody is saying that. No bandwagons necessary.
Observer on September 6, 2012 at 9:03 pm
This is not about playing victim, or jumping on bandwagons.
There is a frightening and grotesque excrescence in the discourse on reproduction, reproductive rights, surrogacy and other matters that treats children as “things” in the vulgar language of trade, and things “owned” by mothers, over which mothers should have full control. A battle is being waged over power and control of reproduction by damaged persons who think of themselves as feminists, and again children are the losers. A child is a verb, not a noun; it is a changeable set of relationships.
You say “of course a child is not a possession,” but I’m not sure you are really grasping what I mean.
DT on September 6, 2012 at 9:05 pm
KT
I have a number of protected characteristics under the Equality Act 2010 – I was also previously protected under under the (DDA 1995).
I have a number of disabilities and I find your comments offensive and inappropriate.
DT
Observer on September 6, 2012 at 9:06 pm
Also, your point that we shouldn’t make this ‘all about fathers again’ only reveals a hostility toward any kind of debate that thinks these things through carefully. To me, it just points to how there is all the more reason to bring the issues of fatherhood into discussions about reproduction.
DT on September 6, 2012 at 9:29 pm
Observer
You do your cause and that of fathers an injustice here I’m afraid – you are high on florid rhetoric and low on tangible substance.
I am all for fathers’ rights – really I am – but not victim seekers I’m afraid! There’s enough fathers wallowing in it for my liking sadly.
I’m sick of hearing how bad mums / females are!
DT
Observer on September 6, 2012 at 10:27 pm
Nobody here has said anything about how moms/females are bad. Can you point to something that I or anyone else has said that leaves you with this impression. Rather, if anything, I am concerned with how moms/females are manipulated by certain charities, organizations, causes that promote unhealthy thinking, and which result in damaging scenarios for all members of the family. But mostly, I am concerned with the children who have not yet developed the coping mechanisms to deal with those adults that are always ‘f–king them up,’ to quote Larkin.
KT on September 7, 2012 at 1:20 am
Dads are often the reason they use surrogates. I have sympathy for the infertile wife who desperately wants to please the man with a child. The use of surrogates is quite frequently because a man wants a child. Now they can even do this without bothering to have a relationship.
KT on September 7, 2012 at 1:51 am
Another study which shows high number of abnormalities with IVF babies, and all gestational surrogate babies come from IVF. http://www.abc.net.au/catalyst/stories/s904186.htm
JamesB on September 7, 2012 at 9:31 am
Can we please stop blaming the man for everything.
Personally, I do not have an issue with surrogates. I have a friend who is having trouble conceiving due to his sperm and his wife is putting pressure on him. It is not gender specific.
I said to him if I were him I would get his brother, father, or another relative to donate the sperm and do the implantation in a tukey stuffing method without Doctors.
I do have a friend who is a Dr and she said IVF embroyos, especially those frozen were inferior. Said if you scan them in a certain way the IVF ones glow but the non IVF ones don’t (or something) I am not a Doctor.
Observer on September 7, 2012 at 10:09 am
At the end of the day, it’s all about making a profit off of something, whether its divorce law or manufacturing babies. There are some who say that money makes the world go around, and that this sort of thing is necessary and inevitable. It isn’t. There are always more humane alternatives than profiting off of someone’s marriage breakdown or infertility problems.
KT on September 7, 2012 at 11:06 am
I agree with you Observer. @JamesB, it isn’t al man’s fault, there are women with money who just don’t want to bother with being pregnant. They can exploit poor and vulnerable women to risk their lives having babies for them. There will be this underclass (actually there already is in India and beginning in the US) of breeders that people will pay to have their babies. The reason that lawyers and others want to make this legal is so that they can all make megabucks from baby selling/baby poaching while claiming that it is unethical for the woman who is risking her life having the baby to make money from it. There should be a law made that lawyers could only do this altruistically and doctors also. Then we could see how altruistic all of these people are. They would not be allowed to profit either directly or indirectly from it under severe penalties of huge fines and long jail sentences.
KT on September 7, 2012 at 11:56 am
Good article published today called “Mothers for HIre.”. “Vaghela’s death has triggered a debate that has so far been desultory in India. ”Her fate has shown that death is a real hazard of surrogacy. She did it to give her own two children a brighter future and now they’ve been left without a mother,” says Dr Tripta Chaudhary, of Fortis Hospital in Delhi.”
Read more: http://www.smh.com.au/national/mothers-for-hire-20120906-25hi1.html
Observer on September 7, 2012 at 6:24 pm
I’d just rather that we try and think about the whole issue from the perspective of the poor kid who grows up not knowing who his/her parents are, who learns to think of himself/herself (and everyone else) as an object standing ready to be abused, hired, profited from. The whole thing is just unethical when one tries to put themselves in the shoes of the child (for a change).
JamesB on September 8, 2012 at 1:40 pm
I have thought about this a bit recently (not that much), and I one post on here has actually changed my mind.
KT on September 7, 2012 at 11:06 am
Not just that, but seeing my Dad in hospital this week and how lacking in self-estime the staff were. They do a critical job yet feel un-motivated as they are not loaded celebrities. Yes, there is, or certainly should be more to life than money, so I am against a woman having another woman’s baby, and to be fair, perhaps I have not changed my mind as I never suggested that and this is a new issue for me, perhaps KT helped me clarify it. Also, helps me realise I am not a mysogynist or racist by agreeing with a woman or an ethnic minority from time to time and my girlfriend is not white so I am not racist either!
JamesB on September 8, 2012 at 1:43 pm
I am white male by the way. Also, those books all the women are reading round the pool, 50 shades of grey, darker, etc. I mean, wtf is that all about? Normal life is quite ok without the worshiping of money.
KT on September 8, 2012 at 2:23 pm
If you wonder what makes me have such a strong opinion on the subject and my background, I was adopted. No matter how nice your parents are that raise you, you always wonder why you were not worthy of keeping by the person who gave birth to you. It bothered me so much that I tracked down my birth parents. My mother was young and unmarried and her father threw her out of the house and said she couldn’t come back until I was gone. My father had shipped off to war not knowing about the pregnancy. I was adopted into a very nice family. My mother that adopted me had a child herself when she was young and unmarried. The father of her child had been killed in a crash so there was no way for her to marry him. She went away, had the baby and gave the child up for adoption. Unfortunately when she did marry and tried to have children, she kept having miscarriages. So they adopted. While I was fortunate in my circumstances, I was always very upset by the fact that someone would give birth and then give the child away. It was horrible to deal with this. I guess back in those days women and children were shunned if there was no marriage. Women also didn’t have much ability to make enough money to actually support themselves and a child. Such failures of society to treat a mother and child this way. I work in the financial sector. I have 2 older children that were born the natural way. I could never even consider the idea of bringing a life into the world to SELL him or her or even to give the child away. It is a terrible thing to do to a child and no mother should ever be so disrespected that she should have to do this.
JamesB on September 8, 2012 at 9:57 pm
thank you for sharing that. My mum is similar and was brought up in an orphanage. I agree with what you say.
Marilyn Stowe on September 9, 2012 at 5:39 pm
Dear KT
Thank you for sharing this. It was very decent of you.
Marilyn
BDB on November 25, 2012 at 4:19 pm
I just picked up on the point ” there is nothing to stop a single person adopting a child”.
To correct this point – adoption is under the control of local authorities, adoption panels and the court. They decide which children are suitable for adoption and after a tremendous amount of scrutiny they decide whether applicants are suitable and able to provide adequate care and provide for the needs of a child, they consider age and health as well as criminal background checks, history of substance abuse etc….. So there are many things stopping a single person ( or couple for that matter) adopting.
Elton John for example was not able to adopt even with his partner.
Adoption is completely different to surrogacy. Adoption is tightly controlled by authorities, whilst any single person ( or couple) can apply, it does not mean they can adopt.
Two years ago it was reported that a single wealthy international footballer abroad had taken charge of his surrogate baby. He doesn’t have fertility problems. Now the child has only one parent and no mother. The footballer even care for the child alone due to work commitments and travelling so most of the time he has to hand the baby to his mother and sister to care for. But by paying a surrogate it meant he could have a child without being concerned about a relationship break up resulting in him losing custody of the child and costing him millions in maintenance for the child and mother.
Adoption is unique and cannot be compared with surrogacy.
Observer on November 25, 2012 at 9:20 pm
“whether applicants are suitable”
Read: whether applicants are in the “correct” income bracket (and increasingly, whether they subscribe to the right political party).
Even Orwell could not have envisioned how disgusting things are.