PROSTITUTION OR SURROGACY: THE MYTH
[Volume 1, Issue 1][ISSN 2394-9295]
|AKSHAT SWAROOP||SHIVANI RASTOGI|
|Amity Law School, Noida||Amity Law School, Noida|
|Email Id: firstname.lastname@example.org||Email Id:email@example.com|
Prostitution is an act or practice of providing sexual services to another in return for payments, whereas Surrogacy is a method of reproduction whereby a woman agrees to carry a pregnancy and give birth as a substitute to the contracted parties. In India prostitution itself is not illegal but the surrounding activities are. The Immoral Trafficking (Preventions) Act 1956 does not criminalize prostitution or prostitute per se. Similarly commercial surrogacy is legal in India but is still unregulated. The biggest question that still triggers the brain cells of any person is whether surrogacy is equivalent to prostitution? There is no definite answer to this query. Certain aspects of surrogacy make it akin to prostitution, yet certain make them poles apart. Surrogacy, like prostitution, is said to be a payment of fee for the use of body. Coercion and exploitation may be present in some forms of prostitution but neither is present in surrogacy. In surrogacy the women exercises her right of choice but doesn‟t so in the case of prostitution. This can further be justified by stating a simple point of difference that when a surrogate is hired she is passed through a proper screening test whereas the same is not true for a prostitution. Also women engaging in prostitution may be exploited due to her extreme poverty but the same cannot be vouched for surrogates. Hence when it comes to the use of women‟s body both prostitution and surrogacy can be used as synonyms but tactically they are different.
Key words: Prostitution, Surrogacy, Immoral Trafficking (Preventions) Act 1956.
With her tiny legs and arms held close to her angelic body and sparks of hope hidden underneath tender eyelids, she smiles with a pleasant thought of entering a world that‘s alien to her. From the comfort of her mother‘s cozy womb, she will now have to embark upon a perilous journey…and there‘s no escaping.
As this little angel grows up expecting the world to treat her with respect and love, she comes across perturbing issues in life – gender bias, eveteasing, domestic abuse and so on and so forth. With adolescence, come a number of demands – some self created and some put forward by the world. While some cope with societal pressure and accept themselves as they are, some go beyond what is socially acceptable to transform into an
eye candy ‘with least embarrassment of ridiculing their own existence and the institution of womanhood. The
woman in her gladly accepts the disgrace of being termed as a sex object and doesn‘t mind being one, for the fittest alone survives. And it‘s a man‘s world after all!
“In childhood, a female must be subject to her father, in youth to her husband, when her lord is dead, to her sons, a woman must never be independent.” Manu Said
Does the statement speak the truth of the past and present society or not? Not only this, husband is a lord to his wife this shows the mindset of that time, that a wife is like a servant, not a better half of a man/husband. Domination of man was there and presently same being followed. In fact women started losing the respected positions with the change from matriarchy to patriarchy. Since that time onwards women started becoming a victim of slavery and molestation. Women became a commodity as monogamy was accepted rather started in that society. Women underwent drastic changes just to be socially accepted and appreciated but instead ended up being exploited by men.
The roots of surrogacy can be traced long back in Indian history. The world‘s second and India‘s first IVF (In Vitro Fertilization) baby Kanupriya alias Durga was born in Kolkata on Oct. 3, 1978. Surrogacy is a method of assisted reproduction whereby a woman agrees to become pregnant for giving birth to a child for others to raise. She may be the child‘s genetic mother (the more traditional form of surrogacy) or she may be implanted with an unrelated embryo. Having another woman bear a child for a couple to raises usually with the male half of the couple as the genetic father is referred to in antiquity. In some cases, surrogacy is the only available option for parents who wish to have a child that is biologically related to them. The word
―surrogate, is rooted in Latin ―Subrogare (to substitute), which means ―appointed to act in the place of.
A surrogate mother is a substitute mother. Surrogacy is a method of reproduction whereby a woman agrees to carry a pregnancy and give birth as a substitute to the contracted parties. There are several kinds of surrogacy like Altruistic surrogacy is where a surrogate mother agrees to gestate a child for intended parents without being compensated monetarily in any way. In other words, this is in effect a free surrogacy. Whereas, commercial surrogacy is an option in which intending parent offers a financial incentive to secure a willing surrogate. Commercial surrogacy is a controversial method of conception because people, governments and religious groups have questioned the ethics of involving money in a child‘s birth. There can be several reasons behind surrogate pregnancy. For instance, intended parents may arrange a surrogate pregnancy because a woman who intends to be parent is infertile or unable to carry a pregnancy to term, e.g., woman with hysterectomy, uterine malformation or with a history of recurrent abortions or any medical illness making her pregnancy a risk to her own health.
A female intending to be a parent may also be fertile and healthy, but unwilling to undergo pregnancy. The agencies making arrangement for surrogacy for the intended parents often help them to manage the complex medical and legal aspects involved in process.
The concept of surrogacy in India is not new. Commercial surrogacy or ―Womb for rent, is a growing business in India. In India, English speaking environment and cheaper services attract the willing clients.
Future projections of surrogacy practice range from opportunity to exploitation – from rural women in India uplifted out of poverty to a futuristic nightmare of developing country baby farm. In case of surrogacy in India, it is hard to tell that whether these women are exercising their own personal rights or whether they are forced to become surrogate mothers due to their motherinlaw‘s or husband‘s desire to fulfill material and financial needs.
Opponents of surrogacy argue that the practice is equivalent to prostitution and by virtue of that similarity; it should be disallowed on moral grounds. Surrogacy contracts are dehumanizing and alienating since they deny the legitimacy of the surrogate‘s perspective on her pregnancy. Surrogate mother tries to avoid developing a special bond with the child in her and views the pregnancy as merely a way to earn the much needed money. The payment for bodily services dehumanizes the surrogate mother and exploits her reproductive organs and capability for personal gains of the wealthy.
Surrogacy allows women to exercise their right of choice and their right to procreate. They are given the opportunity to make a large enough sum of money to buy better homes or provide an education for their children. For women that hire surrogate mothers, surrogacy steers away the view that a women‘s role in society is to bear children. Surrogacy allows symmetry between both partners who both donate their gametes since the male generally acts as a passive partner to the resulting pregnancy and delivery. Women in politics or in the work force can now hire a surrogate mother, rather than taking time off from work. It allows infertile women an opportunity to have a child. Prohibiting surrogacy would ―violate women‘s selfdetermination and would infringe on the commissioning parties ‘right to procreate’.
Although gender equality seems to improve for women of higher status that are able to afford surrogate mothers, the fear is that surrogacy will exploit the poor. It is unclear that poorer women will voluntarily lease their bodies for reproductive ends. One primary concern is that contract pregnancy commodifies both women‘s labor and children in ways that undermine the autonomy and dignity of women and the love parents owe their children.
Prevalence of surrogacy in India is hard to predict as there are no exact figures available and prevalence is also dependent on specialized centers that cater to surrogacy as an option to couples that have no other way of getting a baby of their own.
However, the success rate of surrogacy is almost 45% with fresh embryos and 25% with frozen embryos.
The package for surrogacy in India almost costs 50% less as compared to other countries and can vary between Rs 8,00,000 to 15,00,000 approximately.
The surrogacy package price estimate above, covers doctor fees, legal fees, surrogate work up, antenatal care, delivery charges, surrogate compensation, egg donor, drugs and consumables, & IVF costs.
TYPES OF SURROGACY
- Surrogacy: Surrogacy is a method of reproduction whereby a woman (referred to as surrogate) agrees to carry a pregnancy and give birth as a substitute for the contracted party/ies. Surrogacy may be Natural (traditional / Straight) or Gestational.
- Natural (Traditional/ Straight) Surrogacy: In traditional surrogacy the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others such as the biological father and possibly his spouse or partner and thus the child that results is genetically related to the Surrogate mother. The child may be conceived via sexual intercourse, home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination), which is performed at a fertility clinic. Sperm from the male partner of the commissioning couple‘ may be used, or alternatively, sperm from a sperm donor can be used. Donor sperm will, for example, be used if the commissioning couple ‘are both females or where the child is commissioned by a single woman.’
- Gestational Surrogacy: In gestational surrogacy, a surrogate is only a carrier/female host and is not genetically or biologically related to the child. The Surrogate is implanted with an embryo that is not her own, and becomes pregnant with a child to which she is not the biological mother. After birth, the surrogate relinquishes the child to the biological mother and/or father to raise, or to the adoptive parent(s) (in which case, the embryo would have been a donated embryo). The surrogate mother may be called a gestational carrier.
- Commercial Surrogacy: Commercial Surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save or borrow in order to complete their dream of being parents. This procedure is legal in several countries including India. Commercial surrogacy is also known as wombs for rent, outsourced pregnancies ‘or baby farms’.
- Altruistic Surrogacy: Altruistic surrogacy is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, accommodation, diet and other related expenses).
Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including ―john . Prostitution is one of the branches of the sex industry. The legal status of prostitution varies from country to country, from being a punishable crime to a regulated profession. Estimates place the annual revenue generated from the global prostitution industry to be over $100billion.
Prostitution is sometimes referred to as ―the world‘s oldest profession.
Prostitution occurs in a variety of forms. Brothels are establishments specifically dedicated to prostitution. In escort prostitution, the act may take place at the customer‘s residence or hotel room (referred to as out-call), or at the escort‘s residence or in a hotel room rented for the occasion by the escort (called incall). Another form is street prostitution. Sex tourism refers to travelling, typically from developed to under-developed nations, to engage in sexual activity with prostitutes. Sex trafficking, one type of human trafficking is defined as using coercion or force to transport an unwilling person into prostitution or other sexual exploitation.
The rights of sex workers have always been a contentious debate all over the world. There is no specific law to regulate prostitution or ban it altogether. The bill to amend the Immoral Trafficking (Prevention) Act was moved in 2006 by the ministry of women and child development headed by Renuka Chowdhury. Now the government of India has proposed a new law, under which (i) soliciting will no longer be a crime, (ii) there will be no eviction of sex workers, (iii) clients of sex workers could land in jail and face penalty of upto Rs
50,000, (iv) living off earnings of sex workers is illegal, (v) anybody who rents place to sex workers will be arrested and will be penalized for Rs 10,000. The proposed bill will be taken up in the next session of the Parliament. Meanwhile, the National AIDS Control Organization (NACO) has criticized the amendment saying that the Centre‘s plan to penalize the sex workers‘ clients as a move to curb the prostitution would in no way help, but would only pushes it underground. The current law penalizes the sex worker as an offender (and not her clients) who is a victim herself. In our country, nearly 80 per cent of prostitutes are in such profession mainly due to poverty, tricked by someone close to them, trafficking, etc. There has been a great emphasis on decriminalizing prostitution. In a country where sex is highly stigmatized, should prostitution be legalized?
In most of the research done, it indicates that the majority of sex workers in India work as prostitutes due to lacking resources to support themselves or their children. Most do not choose this profession but out of necessity, often after the breakup of a marriage or after being disowned and thrown out of their homes by their families. The children of sex workers are much more likely to get involved in this kind of work as well. Almost 5,000 prosecutions have been recorded so far under the Bonded Labour System (Abolition) Act of 1976.
Tribal Kolta women and girls from Garhwal hills are compelled to become prostitutes to rescue their family from debt bondage. Poverty stricken young girls from Bengal and Nepal are lured with promises of attractive jobs and marriage. The agents came to know about the existing condition in the areas of U. P. Tehri, Garhwal, Dehradun etc. The local Rajputs used to keep the men as animals and exploit their wives, sisters and daughters too. The agents were successful in convincing these women well and hence brought them to Delhi and Agra and sold them to the brothels there.
TYPES OF PROSTUTION
Prostitution can be broken down into four categories:
- Forced Prostitution: The first category, forced prostitution, is an international problem. People have been known to entice women from developing countries to leave their homes for well paying jobs in restaurants or nightclubs in an industrialized nation. Once they leave, however, their passports are taken and they live in the custody of their captors and are forced to prostitute themselves. They often do not speak the language of the country they have been brought to and are subject to violent attacks by their captors.
- Prostitution due to extreme poverty: Women who are prostitutes or become prostitutes due to extreme poverty and prostitution is the best way for them to survive. Although poverty is essentially compelling them to be prostitutes because they may have no other alternative.
- Prostitution as the best alternative amongst a very small range of choices: It includes women who are prostitutes not because it is the profession of their choice, but because a life of prostitution appears to be the best alternative in a spectrum of very few choices based on their economic situation. They can engage in prostitution and make a fair amount of money or they can take a lowpaying job. Such women engage in prostitution because, amongst their choices, this seems to be the best alternative.
- Prostitution as their profession of choice: The fourth and final category comprises women who engage in prostitution as their profession of choice. This means that women who have many choices, including higher education and professional career options, select prostitution because, on balance, they earn the most money for the least effort, or find the profession to be enjoyable.
Prostitution is not a criminal offense in India. However soliciting for prostitution and prostitution in any public place are illegal. Prostitution is the use of one‘s body for sexual services such as oral sex or sexual intercourse in return for payment. It is defined as ―the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind.
Prostitution Vaguely Defined
The definition of prostitution in the Indian law is vague and ambiguous. The main statute dealing with prostitution or sex work in India is the Immoral Traffic (Prevention) Act 1956, the amended version of the Suppression of Immoral Traffic in Women and Girls Act 1956. The act came into force on 26th January 1987. The purpose of the law is to limit and abolish prostitution in India by gradually criminalizing various aspects of sex work.
The law does not refer to the practice of selling one‘s own sexual service as ―prostitution . So the act, as of now, does not criminalize prostitution per se, but it intends to punish acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring. A sex worker can legally practice her profession inside a house but cannot solicit clients on the streets. What this essentially means is that a woman is free to use her body for material gains. But a brothel – a house or room – shared by two or more sex workers is illegal. Brothels normally consist of several rooms or chambers, with grilled windows, where women are locked up.
Any adult who knowingly lives on the earnings of the prostitution of any other person shall be punished. If any adult is proved to be living with a prostitute in aiding her prostitution, it shall be presumed that such person is knowingly living on the earnings of prostitution of another person.
The law penalizes those prostitutes who solicit customers by words or gesture or willful exposure of her body. This can be punished with imprisonment of up to six months and/or fine of up to Rs. 500. The persons such as pimps and procurers soliciting on behalf of a commercial sex worker in a public place can be similarly punished. But this law is being used illegally to harass prostitutes charging wrong things on them. Any person involved in the recruiting, transporting, transferring, harbouring, or receiving of persons for the purpose of prostitution is guilty of trafficking.
The act provides for the appointment of a special police officer for investigating offences with inter-state ramifications. Police can enter and search any premises on suspicion. The women who are resented by the police during raids will be questioned only by women police officers and if none is available they can be interrogated only in the presence of a female representative of a recognized welfare organization. To make a search or to conduct a raid, the police officer has to be accompanied by at least two police women.
The punishment for procuring, inducing or taking away persons for prostitution is a minimum of three years and a maximum of seven years of rigorous imprisonment. Forcible detention for prostitution can also be
punished with imprisonment for seven years to a life term. The law provides for engaging special police officers, non-official advisory bodies and police officers to stop trafficking and to establish special courts to deal with cases under the act. It also provides for establishment of protective homes for rescued girls who can stay there for not exceeding three years. The law does not provide for punishing the client. All offences are cognizable under the Act.
No Concept of Child Prostitution Exists Now
Child Prostitution, as per Indian laws as existed before the enactment of the Criminal Law (amendment) Act 2013, was the practice whereby a child hires out his or her body for sexual activities in return for remuneration or any other form of consideration.
Child prostitution referred to the prostitution by a minor, or person under the legal age of maturity.
Children are generally not expected to be able to make an informed choice to prostitute themselves. Under the law there were three categories of victim children, minors and majors.
[Children: Children are those up to 16 years.
Minors: Minors are those between the age of 16 to 18 years. Majors: Majors are those who are above 18 years.]
The punishment for offences committed against the three categories had much differences depending on the category to which the victim belonged to. The offences against children and minors were dealt with more severely than those against majors.
The Section five of the act states that if a person procures, induces or takes a child for the purpose of prostitution then the prison sentence is a minimum of seven years but can be extended to life or a term which may extend to ten year and also a maximum fine of one lakh rupees. The Criminal Law (amendment) Act 2013enhanced the age of consent from 16 to 18 and hence the concept of child prostitution no longer exists now.
India is emerging as a leader in international surrogacy and a sought after destination in surrogacy- related fertility tourism. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients roughly a third of the price compared with going through the procedure in the UK.
Surrogacy in India is relatively low cost and the legal environment is favorable. In 2008, the Supreme Court of India in the Manji‘s case (Japanese Baby) has held that commercial surrogacy is permitted in India with a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. At present the Surrogacy Contract between the parties and the Assisted Reproductive Technique (ART) Clinics guidelines are the guiding force. Giving due regard to the apex court directions, the Legislature has enacted ART BILL, 2008 which is still pending and is expected to come in force somewhere in the next coming year. The law commission of India has specifically reviewed the Surrogacy Law keeping in mind that in India that India is an International Surrogacy destination.
International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved and thus, giving due regard to the concerns and in order to prevent the commercialization of the Human Reproductive system, exploitation of women and the commodification of Children, the law commission has submitted it‘s report with the relevant suggestion:
The Law Commission of India has submitted the 228th Report on ―NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND
OBLIGATIONS OF PARTIES TO A SURROGACY. The following observations had been made by the Law Commission: –
- Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
- A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
- A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
- One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
- Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
- The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
- Right to privacy of donor as well as surrogate mother should be protected.
- Sex-selective surrogacy should be prohibited.
- Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.  The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor, which the law has to address. The Law Commission has strongly recommended against Commercial Surrogacy. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2011 with the passing of the Assisted Reproductive Technology Bill aiming to regulate the surrogacy business.
Laws differ widely from one country to another. In England, commercial surrogacy arrangements are not legal and are prohibited by the surrogacy arrangement act 1985. A surrogate mother still maintains the legal right for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made the surrogate mother remains the legal mother of the child.
Status of surrogacy in USA
In USA, the surrogacy and its attendant‘s legal issues fall under state jurisdiction and it differs from state to state. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them and some penalize commercial surrogacy. In Canada, the Assisted Human Reproduction Act permits only altruistic surrogacy; surrogate mothers may be reimbursed for approved expenses, but payment of any other consideration or fee is illegal.
Status of surrogacy in Australia
In Australia, all states (except Tasmania, which bans all surrogacy under the surrogacy Contracts Act 1993) altruistic surrogacy has been recognized as legal. However, in all states arranging commercial surrogacy is a criminal offense.
Status of surrogacy in South Africa
The South Africa Children‘s Act of 2005 enabled the ―commissioning parents and the surrogate to have their surrogacy agreement validated by the High Court even before fertilization. This allows the commissioning parents to be recognized as legal parents from the outset of the process and helps prevent uncertainty.
Status of surrogacy in Asian Countries. In Japan, the Science Council of Japan proposed a ban on surrogacy and doctors, agents and clients will be punished for commercial surrogacy arrangements. In Saudi, Arabia religious authorities do not allow the use of surrogate mothers. In China, Ministry of Health banned surrogacy in 2001. Despite this regulation it is reported that illegal surrogacy ―black market is still flourishing in China. Anxious about such situation strict legislation has been suggested by the political parties.
The laws on prostitution vary considerably around the world. They can vary from total prohibition of both the sale and purchase of sexual services, bans on either, regulation to varying extent of some or all aspects, to minimal regulation or restriction of any activity. Even when the sale or purchase is legal, prohibiting some or all of the activities necessary to work such as communicating between worker and client (soliciting), working from premises (brothel or bawdy-house), and involvement of third parties (managers, drivers, security) produces a de facto prohibition.
Status of Prostitution in African Countries
Prostitution is illegal in the majority of African countries. Nevertheless, it is common, driven by the widespread poverty in many sub-Saharan African countries, and is one of the drivers for the prevalence of HIV/AIDS in Africa. Social breakdown and poverty caused by civil war in several African countries has caused further increases in the rate of prostitution.
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