[Volume.1, Issue.1]
AKSHAT
SWAROOP SHIVANI
RASTOGI
B.A.LL.B (H),8th Semester B.A.LL.B (H),8th Semester
Amity Law School, Centre-II, Amity Law School, Noida
Ph. No.9953779269 Ph. No.9899008449
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.
Keywords:
Prostitution, Surrogacy, Immoral Trafficking (Preventions) Act 1956.
Prostitution
or Surrogacy: The Myth
INTRODUCTION
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, eve-teasing,
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.
Surrogacy
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.23 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 mother-in-law’s or
husband’s desire to fulfi ll material and fi nancial 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 self-determination and would infringe on the
commissioning parties’ right to procreate.”4
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
(a) 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.
(b) 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.
(c) 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.
(d) 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’.
(e) 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).
PROSTUTION
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 in-call). 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:
(a) 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.
(b) 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.
(c) 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 low paying
job. Such women engage in prostitution because, amongst their choices, this seems
to be the best alternative."
(d) 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.
LEGAL
PROVISIONS
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 victims-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: -
a) 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.
b) 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.
c) A
surrogacy contract should necessarily take care of life insurance cover for
surrogate mother.
d) 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.
e) 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.
f) The
birth certificate of the surrogate child should contain the name(s) of the
commissioning parent(s) only.
g) Right
to privacy of donor as well as surrogate mother should be protected.
h) Sex-selective
surrogacy should be prohibited.
i)
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.
INTERNATIONAL
PERSPECTIVE
SURROGACY:INTERNATIONAL
SCENARIO
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.
PROSTUTION:INTERNATIONAL
SCENARIO
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 in those countries. For these reasons,
some African countries have also become destinations for sex tourism.
AIDS
infection rates are particularly high among African sex workers. Long distance
truck drivers have been identified as a group with the high-risk behaviour of
sleeping with prostitutes and a tendency to spread the infection along trade
routes in the region. Infection rates of up to 33% were observed in this group
in the late 1980s in Uganda, Kenya and Tanzania.
In
Gambia, prostitution is legal, The majority of women prostitutes are foreigners.
Status
of Prostitution in Asian Countries
In
Asia, the main characteristic of the region is the very big discrepancy between
the laws which exist on the books and what occurs in practice. For example, in
Thailand prostitution is illegal, but in practice it is tolerated and partly
regulated, and the country is a destination for sex tourism. Such situations
are common in many Asian countries.
In
Japan, everything but penis in vagina is legal and there are ads that detail
what each individual prostitute will do (bj, anal, ...). Of course many of them
ignore the law. The point is while Japan is painted red by some countries
standards it would be considered technically legal by others since anal sex,
oral sex, etc are legal. See Prostitution in Japan
Child
prostitution is a serious problem in this region. Past surveys indicate that 30
to 35 percent of all prostitutes in the Mekong sub-region of Southeast Asia are
between 12 and 17 years of age.
Status
of Prostitution in U.S.A.
Prostitution
laws in the United States are determined at the state level. The practice is
illegal in all but one of its 50 states and is illegal in all US Territories.
Nevada is the only U.S. state which allows some legal prostitution
in some of its counties. Currently 8 out of Nevada's 16 counties have active
brothels. Prostitution outside these brothels is illegal throughout the state;
prostitution is illegal in the major metropolitan areas (Las Vegas, Reno, and Carson City).
Prostitution is heavily regulated by the state of Nevada. See Prostitution in Nevada.
Status
of Prostitution in European Countries
The
most common legal system in the European Union is that which allows
prostitution itself (the exchange of sex for money) but prohibits associated
activities (brothels, pimping, etc.).
In
Sweden, Norway and Iceland it is illegal to pay for sex (the client commits a
crime, but not the prostitute).
In
the United Kingdom, it is illegal to pay for sex with a prostitute who has been
"subjected to force" and this is a strict liability offense (clients
can be prosecuted even if they did not know the prostitute was forced), but
prostitution itself is legal.
In
Germany while prostitution is legal there are emerging disturbing problems in
it. Flat-rate brothels, where the prostitute has to service any number of men
and do any sex act with them for a single price that's paid by the men as an
entrance fee, is a current trend in Germany. Prostitutes overall don't benefit
since they have to do more sex acts that are sometimes not wanted with any number
of men for less money. This human trafficking is now a growing problem in
Germany's industry of legalized prostitution.
The
enforcement of the anti-prostitution laws varies by country. One example is
Belgium, in which brothels are illegal, but in practice, they are tolerated,
operate quite openly, and in some parts of the country, the situation is
similar of that in neighboring Netherlands.
Prostitution
is illegal in most of the ex-communist countries of Eastern Europe. Here,
prostitution was outlawed by the former communist regimes, and those countries
chose to keep it illegal even after the fall of the Communists. In Hungary,
however, prostitution is legal and regulated.
RELATIONSHIP
BETWEEN SURROGACY AND PROSTUTION
“Commercial surrogacy amounts to
reproductive prostitution. You make use of the bodily functions of another
person to fulfill your own needs. That’s what happens in prostitution. It has
nothing to do with the interests of the child.”
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.
Opponents
of surrogacy argue that the practice is equivalent to prostitution, and by
virtue of that similarity, should be disallowed on moral grounds.
Contract pregnancy transforms what is “specifically women’s labor…into a
commodity,” an exchange of monetary compensation for the use of women’s bodies.
The 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.
Surrogacy demeans the unique mother-child bond as women can now solely be
used as “breeder machines.” The subjectivity of women is enhanced by
creating more opportunities for them to participate in reproductive
relationships rather than opportunities equal to those available to
men.
In
the case of surrogacy in India, it is hard to tell without personally
interviewing these women whether they are exercising their own personal rights,
or whether they are forced to become surrogate mothers due to their
mother-in-law’s or husband’s desire to fulfill material and financial
needs. These women could be very content with their decision of becoming
surrogate mothers. In such a case, one could argue that the government
has no right to interfere with this practice, if women do not mind taking on
what could possibly viewed as a degrading arrangement to some. Also, women
may be offering their own bodies willingly to surrogacy, yet still the money
that offers these women many benefits in the future, could be seen as a type of
coercion. There may be no actual frank coercion, but what the large
amounts of money offered may be so valuable to these women that they may not
have a choice but to take it.
It
is not difficult to detect certain similarities between prostitution and
surrogacy. In both cases one's physical service is being offered, in both
instances a deep personal or emotional relationship is not required for the
transaction to be completed, in both cases material compensation is offered for
the physical services provided.
Comparing
surrogacy to prostitution degrades surrogacy to a level where all we envision
is drugs and violence. At the same time, it can make us forget about the real
problems of prostitution as we know it today, namely trafficking and forced
prostitution.
