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Issues related to Surrogacy

Surrogacy is the term used where a woman bears a child for another woman. The surrogate must be healthy, have a low risk for complications during any pregnancy that occurs and be willing, after delivery, to give the baby to the genetic parents from whose egg and sperm it was conceived.

The advent of new Assisted Reproductive Technology (ART) has changed nature of surrogacy from altruistic to commercial.  

The main reason for India’s dominance in commercial surrogacy is low cost because the usual fee is around $25,000 to $30,000 in India which is around 1/3rd of that in developed countries like the USA. The other reasons are large number of women willing to engage in surrogacy, top-notch private healthcare, English-speaking providers, business climate that encourages the outsourcing of Indian labor, world-famous tourist destinations, and the total absence of government regulation. In India, Surrogacy is well developed in Gujarat especially in Anand District and Gujarat contributes more than 40% of surrogacy industry in India. 

Techniques

Artificial Insemination: Under this technique, sperm of intended father is placed into surrogate mother uterus using artificial means to avoid the complexity of sexual intercourse. 

In Vitro Fertilization: Under this technique, an embryo is implanted into womb of surrogate mother to develop their genetic baby.

An embryo might contain egg or sperm of intended parents, donated egg/sperm with sperm/egg of intended parent and both donated egg and sperm.

Issues 

• Poor Remuneration: The woman, who is carrying a baby, generally get very less remuneration and large share is taken by ART clinics.  

• Gender Selection: Surrogacy is generally involves gender selection which itself illegal in India. If it is a girl child then in many cases surrogate mother either left with baby or get poor remuneration as compared to previously decided. Many ART clinics on the name of surrogacy illegally running sex determination and abortion industry.

• Legal Loopholes: At present, there is no law in place to regulate the surrogacy and related issues in India. The surrogacy is governed by guidelines of Indian Council of Medical Research (ICMR) and by judgments of High or Supreme Court. As no law is in place, surrogate mothers can’t claim their rights from courts or other authority and suffer due to this.  

• Database: However, surrogacy has a legal status in India since a decade and we have guidelines for the same but till now there is no central database for ART clinics, surrogate mothers or other related matters of surrogacy.

• Woman Health: The women health is a serious issue in surrogacy. In India, health got little importance as ART clinics generally ignores regular medical check up, no proper food, no special hostels for pregnancy time or generally had very poor conditions staying home to live in.

• Risk to Baby Health: The surrogacy involves many risks to baby health such as genetic disorders, low birth weight or membrane damage, etc. as many survey studies reported. Further in case of defected or disabled baby, baby has been generally left with surrogate mother or in an orphanage and an innocent baby has to suffer for whole the life for a crime did by his/her intended parents. 

• Child Trafficking: The legal status of surrogacy in India helps in growing child trafficking industry.

• Ethical Issue: Surrogacy leads to commoditization of the child, breaks the bond between the mother and the child, interferes with nature and leads to exploitation of poor women in developing countries.

• Religious Issue: Many religions do not allow surrogacy even in case of in vitro fertilization like in Catholicism. According to it a child is a gift not right and adopting unnatural means are gravely immoral. Also in Judaism surrogacy is permissible in limited terms. However there is little or no restriction on surrogacy in Hinduism but surrogacy rarely used by Hindus.

• Adoption: Many argue that adopting orphan child should be given preference than allowing commercial surrogacy.

• International Issue: 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. Many times citizenship issues arise due to lack of information on laws of both the countries. 

Legal framework 

The legal aspects surrounding surrogacy are complex, diverse and mostly unsettled. In most of the countries world over, the woman giving birth to a child is considered as the Child's legal mother. India is one country amongst the few, which recognize the Intended/ Commissioning Parent/s as the legal parents. Many states now issue pre-birth orders through the courts placing the name(s) of the intended parent(s) on the birth certificate from the start.  Commercial surrogacy has been legal in India since 2002.

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. In lieu of this government has proposed Assisted Reproductive Technology Bill aiming to regulate the surrogacy business.  

Draft Assisted Reproductive Technology Bill, 2014

The bill talks about banning commercial surrogacy and restricted surrogacy for “Infertile Indian couple” only. However Indian couple definition includes OCI, PIO, NRI or foreign nations who have married to Indian.

A couple is defined as a married man and woman which means homosexual and live in relationship people are no more allowed to go for surrogacy.

All married and single women are allowed to be surrogate mother. The surrogate mother shall be of age in b/w 23-35 years; she must have at least her own children not less than 3 years and not allowed to born more than one successful surrogate child.

Recent developments

Recently, home ministry has issued a notification to authorities for not granting visa to foreign nationals for purpose of surrogacy.  

Recently in an affidavit filed to Supreme Court, government said that we will ban and penalizes commercial surrogacy to protect women from exploitation, to prevent human trafficking or to prevent trading of human embryo etc and all this for maintain dignity of women. We will limit surrogacy for only Indian couple and that will be only altruistic in nature not commercial.  

The Supreme Court said government is allowing trading of human embryos which shall not be allowed but running unabated as a business in the country without any regulation by law. Thus Supreme Court asked government to bring surrogacy in ambit of law as soon as possible.

Government should regulate the surrogacy to protect the dignity of woman in society rather than banning it. 

 

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