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Mainstream, VOL LV No 51 New Delhi December 9, 2017

Unbridled Surrogacy: A Pathway to Next Generation Crime

Sunday 10 December 2017

by G.K. Goswami and Siddhartha Goswami

Abstract

Surrogacy may potentially result into genetic bewilderment because of diffused parentage if the gamete donors are not known. In the absence of known parental pedigree, forensic tools like DNA may not be able to establish an individual’s identity, causing difficulty in the execution of national and international laws. This forensic void may attract transnational criminal syndicates to exploit surrogacy and produce tradable ‘designer criminals’ to commit a battery of crimes like terrorism, various kinds of trafficking, smuggling and organ trade without leaving any forensic footprints for their personal identification. Indeed unbridled surrogacy may become a fertile ground to produce stateless ‘criminal robots’ without known genetic antece-dents posing a great threat to global safety and security.

Introduction

The impact of medical assisted reproduction on socio-cultural values and social norms is well known. (Lindheim et al., 2014) Assisted reproductive Technology (ARTs) may result in diffused parentage, posing a threat to the forensic identification of an individual. (Blauwhoff, 2008; Gajendra K. Goswami, 2015; Gajendra K. Goswami, 2016; Ravitsky, 2017) Likewise, unbridled surrogacy may potentially become a tool to orchestrate the next generation crimes. The rising trend of global terrorism and other transnational organised crimes necessitates thorough discussion on the potential misuse of surrogate children. There can hardly be two views that various interventions under repro-ductive technology has given hope to infertile people to have their own children but unregu-lated surrogacy is likely to be misused to create ‘designer fedayeen’ causing havoc and destruction without leaving behind any forensic clues to ascertain their antecedents. Even DNA may fail to establish the genetic identity of a ‘planned surrogate baby’, if sperm, ovum and womb are used from discrete sources.

Instead of recruiting a criminal, surrogacy may alternatively be used for creating a baby, which can be trained for operating terror modules, committing contract killing or carrying out several types of trafficking and smuggling including drugs, weapons, wildlife and so on. Surrogate children may further be exploited for organ trading, sex rackets, forced labour, pornography, begging, spying or even to become surrogate mothers. Child laundering may yet be another method of exploiting children. (Smolin, 2007) Thus ‘designer surrogate robots’ may be the future criminals posing a challenge to the forensic scientists to establish their genetic antecedents. Interestingly, available literature reflects only on the ethical conside-rations of surrogacy, highlighting exploitation of surrogate mothers but any deliberation on designer surrogacy for creating criminals does not find any mention in academic discussions.

Since ages, human identification for various purposes, including criminal proceedings, was considered important by the society. Inter-national law also demands proof of nationality to prosecute a fugitive. In such a scenario, DNA profiling emerged as a panacea to establish the individual identity by matching it with parental or sibling profiles. In the absence of known parental pedigree, the DNA test may fail to disclose an individual’s identity. Similarly detection of the gestational surrogate mother continues to be a challenge for forensic experts.1 In the absence of genetic contribution for conceiving a child, merely a womb-donated mother may not be detected by DNA, says Dr Lalji Singh, the globally renownced Indian expert on DNA Profiling. Criminal syndicates may exploit such forensic void in identifying a predesigned perpetrator to deceive the enforce-ment agencies.

Dimensions

The corpse of Osama bin Laden was identified by establishing DNA linkages to his family members. (Ackerman, 2011; Check, 2011; Obama and McRaven) Had he been a surrogate child, born out of anonymous gametes and womb, establishing his genetic identity then would have been a forensic challenge. In all probability, genetic impersonation and manipulations in the world of crime will become a challenge for the next generation of both, forensic scientists and law enforcement agencies. (Hamilton, 2009) Further trading of these children may bring back a new variant of modern age slavery. A genetically conceived criminal may look like a work of fiction but needs attention of the law- makers, jurists and medical practitioners to design a foolproof system to prevent its occurrence so that the wonder science of medical assisted reproduction may not become a fertile ground to produce predesigned criminals. In the absence of a robust scientific and legal frame-work, the transnational terrorism and other crimes may widely be sponsored by cross-border remote control without any footprints of their involvement.

Diverse surrogacy-legal regimes in various countries promote transnational reproductive tourism. (Inhorn and Patrizio, 2012) In general, the developed nations have strict laws for assisted reproduction but many developing jurisdictions have either scanty or no law in place. India, the global capital of surrogacy, is facing challenges in making surrogacy laws. Medical facilities and surrogate mothers’ availability at low cost in developing countries impose negligible legal responsibility on commissioning parents, which further facilitates cross-border baby-making. The record-keeping at fertility clinics is poor without having a national level registry of surrogate children. Thus surrogate children are being produced like chattel violating the cardinal principle of the inviolability of the human body susceptible to exploitation and abuse.

Surrogacy is a booming global industry worth nearly $ 6 billion annually. (Morris, 1993) A series of middlemen involved in the process further enhances the susceptibility quotient for the misuse of reproductive technology. Newspapers are flooded with reports of the susceptibility of surrogate children ranging from abandonment to their misuse. (Express, 2012) Multiple births in surrogacy are common but no record of unwanted ‘extra-children’ is available whereas these ‘abandoned children’ may become an easy target of the criminal racketeers.

Every child has the inherent right to know her/his genetic ancestry which is essential for her/his personal development and for medical reasons. (Besson, 2007) The right to know one’s genetic origin must be available to every child including the right to know the identity of the surrogate mother. Indeed the ARTs and surrogacy need legal regulations both at the national and global level. A global Protocol on Surrogacy Laws is the need of the hour with special emphasis on maintaining records of surrogate children so that they may be tracked forensically, if need be. The challenges before forensic experts to unravel the mystery of diffused parentage and gestational surrogate womb need global attention for further intensive research in this field.

Conclusion 

In the era of rising transnational crimes, identification of criminals, dead or alive, continues to pose a challenge for law-enforcers. Sponsored trans-border crimes have a history of affecting diplomatic relationship between nations in the past.

Stateless criminals created through surrogacy may challenge the regional and global efforts for combating cross-border organised crimes. Transnational criminals are in the habit of exploiting and improvising advanced techno-logies and ARTs may not be an exception. Unregulated assisted reproductive procedures may become a boon to the underworld, if not checked in time. Global attention and efforts are required to regulate assisted reproduction to check possible abuse of surrogate children.

[Sincere thanks to Dr Ashish K. Dwivedi, Indian Institute of Technology, Kanpur for his valuable discussion and comments on earlier drafts of this article. —G.K.G. and S.G.]

References 

Ackerman, S. (2011), ‘Osama bin Laden: Commandos Use Thumb, Eye Scans to Track Terrorists’, http://www. wired. com/dangerroom/2011/05/csi-bin-laden-Commandos-use-thumb-eye-scans-to-track-terrorists/(Accessed June 6, 2017).

Besson, S. (2007), ‘Enforcing the child’s right to know her origins: Contrasting approaches under the convention on the rights of the child and the European convention on human rights’. International Journal of Law, Policy and the Family, 21(2), 137-159.

Blauwhoff, R.J. (2008), ‘Tracing Down the Historical Development of the Legal Concept of the Right to Know One’s Origins-Has to know or Not to Know Ever Been the Legal Question.’ Utrecht L. Rev., 4, 99.

Check, R.R. (2011), ‘Fallout from Using DNA to Identify Osama bin Laden’.

Express, T.I. (2012), ‘From abandonment to abuse, 18 cases that helped draft surrogacy bill’, September 8, 2016. The Indian Express.

Goswami, G.K. (2015), ‘The genetic truth of surrogate parentage’, Medico-Legal Journal, 0025817215576877.

Goswami, G.K. (2016), Assisted Reproduction and Conflicts in Rights: Satyam Law International: New Delhi.

Hamilton, S.N. (2009), Impersonations: Troubling the person in law and culture: University of Toronto Press.

Inhorn, M.C., and Patrizio, P. (2012), ‘The global landscape of cross-border reproductive care: twenty key findings for the new millennium’, Current Opinion in Obstetrics and Gynecology, 24(3), 158-163.

Lindheim, S.R., Coyne, K., Ayensu-Coker, L., O’Leary, K., Sinn, S., and Jaeger, A.S. (2014), ‘The Impact of Assisted Reproduction on Socio-Cultural Values and Social Norms’, Advances in Anthropology, 4 (04), 227.

Morris, P. (1993), Permanent Bureau of the Hague Conference on Private International Law, (ed.), ‘Practical Handbook on the Operation of the Hague Convention of November 15, 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters’, 2nd edn.(loose-leaf), Maklu, Antwerp/Apeldoorn 1993. Netherlands International Law Review, 40(01), 147-147.

Obama, B., and McRaven, W. H., ‘The Death of Osama bin Laden: Presidential Speech’, White House (May 1, 2011) (www. youtube. com/watch.

Ravitsky, V. (2017), ‘The right to know one’s genetic origins and cross-border medically assisted reproduction’, Israel journal of health policy research, 6(1), 3.

Smolin, D. M. (2007), ‘Child laundering as exploitation: applying anti-trafficking norms to intercountry adoption under the coming Hague regime.’ Vt. L. Rev., 32, 1.

Endnotes

1. Based on genetic contribution, the surrogate mother may be either gestational (only carries pregnancy, no genetic contribution), or traditional (contributes ovum by the process called intrauterine insemination and carries pregnancy to the term). DNA enables linking mother with child if she contributes ovum irrespective of carrying the pregnancy.

Dr G.K. Goswami is a serving member of the Indian Police Service in the State of Uttar Pradesh and Research Scholar at School of Law, Rights and Constitutional Governance, Tata Institute of Social Sciences, Mumbai, He can be contacted at goswamigk.ips[at]gmail.com

Siddhartha Goswami is a BA LLB (student) at the Jindal Global Law School, Sonepat, Haryana.

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