The Legal Void of Surrogacy: Human Rights, Women’s Dignity, and the Indonesian Response -By Farah Fahira Putri

On the stage of medical technology gives hope to a wider field which overcomes natural limits, people say that surrogacyas science will prevail over infertility is laudable.But below the surface rhetoric of “hope” new infertility treatments lies an entirely different story. Surrogacy is not just medical response at all, it is battleground and where planetary humanrights, women’s dignity, commercialization of right to one’s own body all collide in one place. Indonesia is indeed at the bull’s eye of these conflicts not because it embraces surrogacy but because that is never legalized there globally, the surrogacy industry has been evolving into a market worth billions of American Dollar. The rich people move across borders to “rent” themselves an ovaries in economically vulnerable countries, actually completely transforming well being from with procreation under contract. Language is cleansed “Intended parents,’ ” gestational carriers ” but truth pretty grim: women become products of labor, and their children can easily be treated in rather unsafe ways as objects rather than subjects of descendants. entryIndonesia’s system of law might seemcon: servative, or maybe even restrictive to some. Yet this criticism misses the deeper constitutional and human rights implications of its position. Indonesian legislation only allows artificial reproduction inside quite normative walls that are quite literally defined by marriage : also requires subject, places their own wife’s wombs in this country. Radically, the country’s laws anti this and virtually all sociologists would concur that contribution is the product in a surrogacy case; there cannot be two fathers of baby or have no other’s blood to drink afterward without one following entirely in his footsteps. This is absolutely true but reasonable not an accidental omission of any legal provision. It indicates clear intention on the part Indonesia in supporting, if not openly protecting, these rights and interests.Indonesia’s lack of explicit regulation of surrogacy law is often called “legal vacuum.” But this so called void actually reflects a normative unwillingness, a refusal to normalize a practice that raises profound ethical and human rights questions. Does regulating surrogacy normalize it? In effect, that is just what is done. Indonesia has chosen not to cross this line.

There is a good reason behind this. Firstly, the occurrence of a surrogate pregnancy itself poses a grave challenge to the fundamental principle of human dignity. As soon as a contracting, priced and transferred commodity becomes a woman’s reproductive capacity at risk of being realized through surrogacy, her body is liable to be objectified.

To say that the women who take part in this process volunteer and as such are not exploited, ignores the fact that is nothing but a structural inequality word game. For the overwhelming majority of surrogacy arrangements, especially so in developing areas, they are the result not of free will but necessity. Such a thing as consent cannot be separated from economic pressure; it is actually coercion in disguise. Furthermore, surrogacy indetermines the legal identity of a child. Who is the mother the genetic donor, the gestational carrier or the contracting party? In cross border arrangements children may wind up stateless, orphans in law and legally homeless. In an already fragile, delicate interchange they should be the principal subject of protection but indeed this makes them so vulnerable. Thirdly, surrogacy provides a dangerous grey area for medical personnel. With no clear bans and penalties in place, medical workers may get drawn into ethically dubious dealings. Then, they are not just risking their own professional integrity but also becoming subject to legal dispute. Without cohesive legal or regulatory system to maintain standards, instead of stopping the phenomenon we quite likely run further risk of getting caught in an exploitative chain.Going back into the early case law and academic articles, a reason those in favour of surrogacy advance is that it is necessary from viewpoint of reproductive rights. But in point of fact, to couch the issue in terms like these is highly misleading. If the right to decide for themselves about forming a family is to be given wider scope, than surely people who want yet at someone else body must surcease this request. Human rights are never absolute privileges: rather, they are always subject to one’s respect for the rights and dignity of others. In some cases surrogacy burdens one party’s reproductive desire onto another party’s body.Participants in Indonesian culture are generally very cautious towards surrogacy if not actively resistant; this averting-of the trend is crucial. Contrary to the global tendency for unregulated or under-regulated fertility markets, Indonesia prefers not to legitimatize it. In an age of biotechnology, when so much is possible that was not possible before, there is one principle above all that stands out: not everything which could be done should in fact be declared legally permissible.

Yet, resistance isn’t enough. They need to find ways to move from the mere implicit prohibition into the realm of explicit legal provision in Indonesia s current political climate. Without the comfort of specific legislation, all sorts of clandestine services will spring up here and informal arrangements can easily be made – but what’s worse is that it leaves a void for people who may be uncertain about their legal status. A powerful legal framework that both prohibits surrogacy and makes the prohibition effective in practice is absolutely necessary to curtail the birth of an underground market. The state also needs to deal with the underlying causes that both put pressure and offer scope for supply and demand: the widespread inability to conceive, access however one wants (or can get) to birth control but particularly ethical methods of repression and economic weakness. Without solving these fundamental problems, prohibition turns out to be more symbolic than real. The ongoing public debate over surrogacy usually pits tradition against progress. One shouldn’t fall into this trap, nor need we on any account be for or against technological advance. Within human dignity lies the central issuefor real reform: whether society takes it on board a little quietly or as a matter of course. In the job of creating life, surrogacy may itself undermine value of that. Surrogacy makes us confront this awful truth headlong. But Indonesia s response hard-headed, improving every day and full of principle shows in microcosm that when law comes face to with technological might, it s not necessarily a sign of weakness. Sometimes it is the last line.

Farah Fahira Putri

Alumni of Faculty of Law University 17 August 1945 Surabaya and Member of LAW FIRM VICTORIOUS INDONESIA