Surrogacy Its Legal Implications
A surrogacy agreement is an arrangement to carry a pregnancy for intended parents. Surrogacy can be classified into two main types: gestational and traditional. In case of gestational surrogacy, pregnancy occurs due to the transfer of an embryo created by in vitro fertilization such that the resulting child is genetically unrelated to the surrogate. Traditional surrogacy involves impregnation of the surrogate naturally or artificially, and the resulting child is genetically related to the surrogate.
Surrogacy arrangement is usually sought by intended parents when pregnancy is either medically impossible or it is considered very risky for the mother's health. These agreements may or may not includemonetary compensation. The arrangement is termed commercial surrogacy when the surrogate is given compensation higher than the medical reimbursement and other reasonable expenses; otherwise, it is referred to as altruistic or non-commercial surrogacy. Surrogacy laws and costs can differ significantly across jurisdictions in various nations.
History Of Surrogacy
Babylonian law and custom followed a practice known as antiquity. A couple could arrange for another woman to be impregnated by the male half of the couple. The child thus borne would be raised by the couple.A barren woman could use this practice to prevent a divorce.Several advances in medicine, social customs, and legalities have led to the development of modern commercial surrogacy.
In the 1930s,U.S., pharmaceutical companies Schering-Kahlbaum and Parke-Davis started the mass production of estrogen. For the first time in1944, Harvard Medical School Professor John Rock fertilized the human ova outside the uterus. In 1953, the first cryopreservation of sperm was performed successfully. A commercial sperm bank was first opened in New York in 1971, which turned this into a highly profitable business throughout the world.Louise Brown, the first test-tube baby and product of the IVF procedure, was born in England in 1978. In 1980,Noel Keane, a lawyer from Michigan prepared the first surrogacy contract. The first successful gestational surrogate pregnancy in a woman was carried out in 1985.In 1986,surrogate and biological mother, Mary Beth Whitehead of the United States, refused to give custody of the child (Baby M) to the couple against the surrogacy agreement. However, the courts of New Jersey awarded custody of the child to the biological father and not the surrogate mother. Similarly, in 1990,the surrogate mother Anna Johnson in California refused to yield custody of the baby to the intended parents. The court upheld the parental rights of the couple. This verdict legally defined the true mother as the woman who intends to create and raise a child. A convention was held in Chile in 1994 by Latin American fertility specialists to discuss assisted reproduction and its ethical and legal status.So, the concept of surrogacy is not new and has existed in the world since ages.
Legal Issues Regarding Surrogacy Across The World
Not all countries encourage surrogacy. Ethical and legal implications have been a deterrent for its worldwide acceptance. In France, Germany,Sweden and Spain, the people have voted against surrogacy.In France, commercial surrogacy is banned;and in 1991 its highest court announced that “the human body is not lent out, is not rented out, and is not sold.” In the United Kingdom, South Africa and Argentina, where surrogacy is allowed, surrogacy requests are decided by independent surrogacy committees.In the United States, rules and regulations on surrogacy differ among states. California has legalized commercial surrogacy, while it is illegal in some states and in some others, regulations are introduced.
In such a scenario, couples in these countries where legalities involved in commercial surrogacy are complicated, would rather opt for other countries where the legal procedure in this issue is much simpler. In the United States and few other countries, the embryo implantation attempts, surrogacy contracts and post-birth rights of the surrogate mother are all governed by laws;while such contracts and laws in India are still under developed. Surrogate mothers give up their rights to the children with just a signature, and most often with a thumbprint if they are illiterate. The birth certificate does not carry the name of the surrogate. Thus, taking the baby out of the country becomes easy, but legal and ethical uncertainties over surrogacy remain.
Although laws in Ukraine allow surrogacy, bringing the child into the country can be difficult. Surrogacy is completely banned in France, Germany and Sweden.Further, commercial surrogacy is not encouraged in the United Kingdom where legal hurdles exist.Surrogacy is more acceptable internationally, but there are no international laws on surrogacy or minimum standards. Also, legal parentage of such a child has not been recognized by any international conventions.
In some countries, producing evidence (such as DNA test results) of at least one parent of the child having a genetic relationship with the child is mandatory;whereas in other countries, legal release of the child by the husband of any married surrogate is required. Obtaining citizenship and travel document is tough in most countries for such a child.In Belgium, altruistic surrogacy is legal,while commercial surrogacy is illegal. In France, Article 17/6 of the Civil Code nullifies any agreement with a third party relating to procreation or gestation and disobeying the law may lead to judicial problems.However, the Conseild'Etat, the highest administrative court in Francehas declared that overseas surrogacy agreement is lawful.
In Germany, Article 1 of the Constitution, which states that human dignity is inviolable, disallows surrogacy. German law does not permit a human to be made the subject of a contract; including the use of a third party's body for reproduction. In the United Kingdom, commercial surrogacy is not considered legal. It is prohibited by the Surrogacy Arrangements Act 1985.Paying more than expenses for a surrogacy is considered illegal. The Human Fertilization and Embryology Act 1990 allows intending parents to acquire legal parenthood of their child;the surrogate is excluded by anadoption order. In the United States, citizenship to children born overseas to a U.S. parent is granted by the U.S. Department of State, only ifthe U.S. citizen has a biological connection with the child; this is governed by the Immigration and Nationality Act.
International Surrogacy Arrangement
Traditional surrogacy involves the union of the egg of a surrogate mother and, usually, the sperm of the commissioning father. The commissioning father would be the child’s legal father, and the surrogate mother the child’s legal mother, in the home country of both the parents. However, at present,conferring parentage on couples who use artificial fertilization techniques is problematic. Generally, the sperm donor is regarded as the father of the child, so legislation had to be enacted such that the husband of the woman who is inseminated by artificial insemination-donor would be the legal father of the child. This legislation does not encourage surrogacy arrangements.
Advances in medical technology such as gestational surrogacy enable an embryo to be created from a donor egg and sperm and then implanted into a surrogate mother. In this case, the “mother” has to be legally defined. Legal rules maydiffer in the home countries of the surrogate and the commissioning parents. There may be a serious conflict of laws which will affect matters such as nationality and immigration. In countries that allow commercial surrogacy arrangements, rules may permit commissioning parents to have parental rights over the child, and not the surrogate mother. This may not be recognized by other countries, which can have their own rules.
Surrogacy In India – Legal Issues
Since many nations do not recognize surrogacy agreements, India has become a popular destination of fertility tourism. Infertile couples from all over the world travel to India where commercial surrogacy is legal. This arrangement may seem to be beneficial for all concerned parties; however,certain important issues have to be addressed through carefully framed laws in order to protect the rights of the surrogate mother and the intended parents.An added attraction is the low cost of the whole procedure in India which is much less compared to other countries.
The Assisted Reproductive Technologies (ART, Regulation) Bill 2010is an act which aims to provide a national framework for the accreditations, regulation and supervision of assisted reproductive technology clinics, for prevention of misuse of assisted reproductive technology, for safe and ethical practice of assisted reproductive technology services and for matters connected therewith or incidental thereto. However, this bill does not address many important issues of surrogacy. There is no limit on the frequency of use of surrogacy by an intending couple. A government body has not been appointedto check the family background or status of the couples. The ART Bill prohibits sex-selective surrogacy in accordance with the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act. However, there are no means monitor their operation of the clinics.
Commercial surrogacy was made legal in India with the landmark Supreme Court judgment and later, the Indian Council of Medical Research Guidelines 2005 which prescribed conduct and use of ART procedures or treatment by fertility clinics. The ART Bill legalized commercial surrogacy by prescribing monetary compensation to the surrogate mother by the intending couple.Law Commission Report No. 228 (2009) recommends legalization of altruistic or non-commercial surrogacy arrangements in India in order to protect the surrogate mother from exploitation.
The Home Ministry guidelines apply only to foreign couples andlimit the choice of surrogacy to heterosexual couples. However, the ART Bill allows surrogacy by all (including single or unmarried) and there is no restriction on sexual orientation or nationality.In India, many laws have been enforced to regulate surrogacy;but,they lack in clarity. Hence, efforts have to be channelized in this direction.
India only has guidelines and no legislation governing surrogacy. The surrogacy agreement governs the contractual relation between the parties. The surrogate could claim the child as her own or enforce parental visitation or custodial rights, thus creating problems. Also, the surrogate's husband may claim the child under section 112 of the Evidence Act.It is very important for the parents in this arrangement to prepare afoolproof surrogacy agreement and ensure a strong contract.
In India, people are practicing surrogacy when several children are orphans. Childless couples who want to adopt these children are subjected to a complex procedure. A common adoption law for all the citizens across religions or Indians living in other countries is not present. Hence, they are forced to opt for IVF or surrogacy. The Guardian and Wards Act, 1890 allows guardianship and not adoption. The Hindu Adoption and Maintenance Act, 1956 does not allow non-Hindus to adopt a Hindu child, and immigration procedures after adoption pose obstacles. Simple adoption procedures will reduce the rates of surrogacy. However, commercial surrogacy should be encouraged. The rights of women and children should be protected through framing of laws which will cover all the present loopholes.
4. www.rtc.org.au/events/docs/Michael Nicholls presentation Probs with Int Surrogacy Arrangements.pdf
6. icmr.nic.in/guide/ART REGULATION Draft Bill1.pdf
Nikitha Rangarajan - V B.A. LLB - Bangalore Institute of Legal Studies