The notion of parents using posthumous reproduction to “replace” a child or create grandchildren from a child that has died is not new. We have blogged about cases like this here, here and here. I have gone on the record before with my discomfort with these practices though readily acknowledge that there are circumstances where posthumous retrieval is not only legally appropriate but morally and ethically defensible. In evaluating any decision on posthumous retrieval, I think one of the critical issues is whether there existed a prior manifestation of intent on the part of the deceased to procreate after death. Absent such clear manifestation as well as due consideration given to the best interests of the resulting child, then I do not believe it ought to be permitted.

Sandip Roy takes a look at this issue within the context of surrogacy in India and asks the provocative question: is there is a moral right to be parents again?

Here is a tragedy compounded by tragedy.

KP Ravikumar and his wife Karthyayani — he a retired labourer at an automobile garage, she a sweeper at a government hospital — invest their life’s earnings in the musical dreams of their only son, Ratheesh. He gets a BA in Music. They take a loan to send him for a course in sound engineering. But just as his career is about to take off, Ratheesh dies of testicular cancer. But he leaves behind a semen sample, preserved at the Centre for Infertility Treatment in Kochi, just in case his cancer treatment rendered him infertile. The sample was supposed to be destroyed after a year.

Now the grieving parents want that sample to have a surrogate child and it has landed them in a firestorm of media attention and court cases. You can read the twists and turns of their tragic story in the current issue of Open Magazine.

On the face of it the story is rather surreal and almost creepy – the grandchild who is really a placeholder for the dead child. And it raises knotty ethical questions.

Do the couple own their son’s semen sample? Are Ravikumar and Karthyayani too old? Are they too poor? What were they thinking? Were they thinking at all?

Surrogacy, unlike adoption has no age bar. The only age limit is on the surrogate mother who must be between 21 and 45. Reuters

It turns out they were. This is not a quest for a customised designer baby. They initially wanted to simply adopt a child. But parents whose combined age is more than 90 cannot do so. That’s when they started thinking about surrogacy. They even found a relative who was willing to bear the child and were ready to sell their land to finance it.

Surrogacy, unlike adoption has no age bar, their lawyer told Open. The only age limit is on the surrogate mother who must be between 21 and 45. In fact, surrogacy is the grayest of gray areas in reproduction. This is true all over the world.

Surrogacy is unlawful in France while in Australia, the genetic parents have to actually adopt the child since the law does not recognise the surrogate mother as the legal mother. In the US, surrogacy laws vary from state to state. California recognises surrogacy agreements. Florida allows it, but only to heterosexual couples. Michigan prohibits all surrogacy agreements. New Jersey only allows altruistic surrogacy.

As the ways we have children get increasingly complicated, our laws often turn out to be way behind the times. Surrogacy does not even test the limits of our laws because our laws were not designed to deal with something like surrogacy. In 2008, a baby was left stateless after the Japanese couple who had employed a surrogate in India divorced in the middle of the pregnancy and Tokyo refused to recognise the baby.

The murkiness of laws around surrogacy often works to the benefit of those for whom other avenues of having children might be closed – single men, gay couples for instance. Or there was a 56-year-old woman who carried her own grandchildren after her daughter had a hysterectomy.

But as the Ravikumar and Karthyayani case shows, this is a process crying out for more scrutiny. Why is their age a bar when it comes to adoption, but not when it comes to surrogacy?

The debate around surrogacy has tended to revolve around the validity of surrogacy contracts and the stigma that’s attached to someone carrying a baby for money as if it is just baby-selling with a veneer of respectability. In the “Strange Case of Baby M” where a surrogate mother refused to give up the baby she had carried for nine months, Katha Pollitt compared it to prostitution – renting out a womb in exchange for money. The surrogacy business in India is estimated to be around $500 million and growing. Many of the clients are NRIs for whom a poor woman in India is a much better bargain than a surrogate in America. At the same time, India’s Byzantine bureaucracy has turned many surrogate dreams into nightmares. The Indian Council of Medical Research has guidelines about surrogacy contracts but says nothing about what happens if they are breached.

But the Ravikumar case is even more troubling. The issue here is not about contracts or the exploitation of poor women as wombs for rent. It’s about the moral right to be parents again.

There is surrogacy motivated by infertility. There is surrogacy motivated by convenience. And, as this case shows, there is surrogacy motivated by grief. The real tragedy of the Ravikumar and Karthyayani case is that the only way they felt they could cope with the crushing loss of a child was to create another one, in this case a kind of facsimile of the one they had lost.

But that kind of loss really has no surrogate.