Answer By law4u team
Surrogacy is a reproductive arrangement where a woman (the surrogate) carries and delivers a child for another person or couple (the intended parents). Surrogacy can be classified into commercial surrogacy and altruistic surrogacy, both of which have distinct differences, particularly regarding compensation, ethical considerations, and legal frameworks. In India, commercial surrogacy is heavily regulated or even banned, while altruistic surrogacy is more widely accepted under specific conditions.
Key Differences Between Commercial and Altruistic Surrogacy
1. Definition and Compensation
Commercial Surrogacy: In commercial surrogacy, the surrogate mother receives financial compensation beyond her medical expenses and incidental costs. This means she is paid a significant sum for carrying the child for the intended parents. The compensation can include payments for the surrogate’s time, effort, and emotional commitment, and it often involves a contractual agreement that guarantees payment in return for her role.
Example: A surrogate might be paid a lump sum for agreeing to carry the child for a couple who cannot conceive naturally. This compensation is financially motivated, and the surrogate may be engaged purely for the monetary benefit.
Altruistic Surrogacy: In altruistic surrogacy, the surrogate does not receive financial compensation beyond reimbursement for her medical expenses and insurance coverage. The arrangement is based on a sense of goodwill, and the surrogate carries the child for the intended parents without receiving money as compensation for her services. The primary motivation for altruistic surrogacy is the desire to help others have a child, rather than financial gain.
Example: A woman might agree to be a surrogate for her relative or friend and does so without expecting any payment other than coverage for medical expenses and potential insurance costs.
2. Legality and Regulatory Framework
Commercial Surrogacy: In India, commercial surrogacy is prohibited under the Surrogacy (Regulation) Bill, 2020. This law prohibits paying surrogates any amount beyond their medical expenses and basic necessities. Commercial surrogacy is banned due to concerns about exploitation, ethical dilemmas, and the risk of surrogacy as a business.
The bill also restricts commercial surrogacy to Indian citizens and bans it for foreign nationals, same-sex couples, and single individuals. Commercial surrogacy arrangements that involve payment beyond medical expenses have led to concerns over surrogate exploitation and human trafficking in some cases.
Altruistic Surrogacy: Altruistic surrogacy is legal in India under specific regulations. Under the Surrogacy (Regulation) Bill, 2020, altruistic surrogacy is permitted, but it is subject to strict guidelines:
- The surrogate mother must be a close relative of the intended parents.
- The surrogate cannot be compensated beyond medical expenses.
- The intended parents must be Indian citizens.
- There must be no commercial arrangement or financial compensation, apart from covering costs related to healthcare and insurance.
Altruistic surrogacy is seen as a more ethical and regulated option, ensuring that surrogates are not exploited.
3. Ethical Considerations
Commercial Surrogacy: Commercial surrogacy raises significant ethical concerns regarding the exploitation of women, particularly in developing countries. There are fears that poor women may be coerced into becoming surrogates for financial reasons, leading to their exploitation and abuse. Critics argue that it reduces surrogates to mere reproductive vessels and risks commodifying human life.
In response to these concerns, many countries, including India, have opted to ban commercial surrogacy or severely restrict it. In India, the focus has shifted toward altruistic surrogacy, which is considered to be more ethically sound.
Altruistic Surrogacy: Altruistic surrogacy is generally seen as ethically acceptable, as it is based on voluntary help from one woman to another, often in the context of close relationships (such as a sister, cousin, or friend) who are helping someone with infertility problems. Since there is no financial transaction beyond medical expenses, the concerns of exploitation are reduced. However, even in altruistic surrogacy, there are still ethical questions about the psychological impact on the surrogate and the potential emotional challenges of handing over the child after birth.
4. Psychological and Emotional Impact
Commercial Surrogacy: The emotional impact of commercial surrogacy on both the surrogate mother and the intended parents can be complex. The surrogate may feel a strong attachment to the child she carries, and some may struggle with the emotional challenge of handing over the child after birth, especially when significant financial compensation is involved. There is also a risk of detachment or exploitation if the relationship is purely transactional.
Altruistic Surrogacy: In altruistic surrogacy, the emotional challenges may also be significant, but they are often mitigated by the relationship between the surrogate and the intended parents. As the surrogate mother is often a close relative or a friend, there is an existing bond of trust and emotional understanding, which can ease the transition after the birth. However, the psychological impact of carrying and giving away a child can still be significant.
5. Legal Parentage
Commercial Surrogacy: In commercial surrogacy, the legal parentage is determined by a contract that specifies that the child belongs to the intended parents, even if the surrogate mother gives birth to the child. However, if the surrogate mother changes her mind or challenges the contract, there could be legal complications regarding custody and parental rights.
Altruistic Surrogacy: In altruistic surrogacy, the intended parents are recognized as the legal parents of the child, and the surrogate’s parental rights are typically not recognized. The birth certificate will usually list the intended parents as the legal parents. There is a clear contractual arrangement that the surrogate mother has no claim to the child once the birth has occurred.
Example
Commercial Surrogacy: A couple from abroad decides to engage in surrogacy in India. They enter into a commercial surrogacy agreement with a surrogate who is paid a substantial amount of money beyond her medical expenses. The surrogate carries the child for nine months and delivers it. In exchange for the agreed-upon payment, she relinquishes all rights to the child after birth.
Altruistic Surrogacy: A woman who has a friend struggling with infertility offers to help by becoming a surrogate. She carries the child for her friend, covering her medical expenses, but does not receive any financial compensation beyond that. After the birth, she hands the child over to her friend, and no money changes hands apart from covering the necessary medical costs.
Summary
The primary difference between commercial and altruistic surrogacy lies in compensation. Commercial surrogacy involves financial payment to the surrogate for carrying the child, while altruistic surrogacy only involves covering the medical expenses of the surrogate, without any profit for her. Commercial surrogacy is prohibited in India under the Surrogacy (Regulation) Bill, 2020, while altruistic surrogacy is legal but regulated. Altruistic surrogacy is considered ethical and less exploitative, focusing on helping individuals or couples without financial transactions, while commercial surrogacy raises ethical concerns and is seen as potentially exploitative.
