MD SAHABUDDIN MONDAL's Profile and details
Final year student of MAB Institute of Juridical Science.
Problems And Issues Of Surrogate Mother And Her Child – An Analysis
A Jewish proverb states that God could not be everywhere so he made mothers. A pious expression of a mother is given to a female when she gives birth to a child. Due to all worldly changes happening on earth due to climatic changes, global warming and stuff alike, it has taken a toll on human body. Nowadays many women are found who suffer from the problem of infertility. Over a couple of centuries the desire to beget a child for an infertile couple was being satisfied by adoption. But modern sciences has provided new opportunities or options we can say to overcome adoption, that’s surrogacy which has resulted as a boon for those childless couples who want their own child. Surrogacy is a practice whereby a woman agrees to become pregnant by implanted embryo or medically inseminated sperm and bear a child for another person or persons, to whom she intends to transfer the child’s care at, or shortly after, birth and in return receives the compensation for carrying and delivering the child.
The ever-rising prevalence of infertility world over has lead to advancement of assisted reproductive techniques (ART). Herein, surrogacy comes as an alternative when the infertile woman or couple is not able to reproduce. In traditional surrogacy, the surrogate mother is impregnated with the sperms of the intended father artificially, thus making her both genetic and gestational mother. Surrogacy may be commercial or altruistic, depending upon whether the surrogate receives financial reward for her pregnancy. Commercial surrogacy is legal in India, Ukraine, and California while it is illegal in England, many states of United States, and in Australia, which recognize only altruistic surrogacy. In contrast, countries like Germany, Sweden, Norway, and Italy do not recognize any surrogacy agreements. India has become a favorite destination of fertility tourism. Each year, couples from abroad are attracted to India by so-called surrogacy agencies because cost of the whole procedure in India is as less as one third of what it is in United States and United Kingdom (10-20 lakhs). How Modern Surrogacy Came About? The first “official” legal surrogacy agreement was enacted in the mid-1970 with the child who was referred to as Baby M. The same lawyer who brokered this agreement went on to found the Infertility Centre, a company that arranges hundreds of surrogate births every year.
During that same time frame, surrogacy made the national and international news with the world’s first “test tube” baby, Louise Joy Brown. Although this was not technically a surrogate mother situation, this event did pave the way towards what is now known as gestational surrogacy – a practice that is used today for implanting both sperm and egg in a laboratory to later be placed into the surrogate mother’s uterus. It wasn’t until 1980 though, that the first paid traditional surrogacy arrangement was conducted. In this case, the surrogate mother, a 37-year old woman, was paid $10,000 for the successful delivery of a baby boy. It is for this reason that even though surrogacy can be a very positive and rewarding experience for both the surrogate mother and the biological parents, it is also important for those who intend to become surrogate mothers to be not just physically prepared, but emotionally as well. Not long afterwards, in 1983, was the first successful pregnancy done via egg donation. In this case, a woman was able to give birth to a baby through the use of eggs that were donated from another. It was this event that later led to the first gestational surrogacy in 1985. Recent Surrogate History: Over the years, surrogacy has become a much more popular process and procedure than it was just a few decades ago. In fact, over the past dozen years, certain events have taken place that has made surrogacy history. For example, in 2001 the oldest surrogate mother at that time gave birth to her own grandchild, while in 2005; a 58-year old surrogate mother gave birth to her own twin granddaughters.
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 an adoption 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 if the 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 may differ 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:-
The supreme court of India by virtue of case, “Baby Manji vs. Union Of India”, has made commercial surrogacy legalized in India. India is immerging as a leader in international surrogacy. Surrogacy in India is much simpler and cost effective than anywhere else in the world. There is no law governing the surrogacy ‘Surrogacy Agreement’, is the only base which governs the parties to surrogacy. Therefore the commissioning parents are required to be attentive while signing agreement, so that the surrogacy agreement is not held void in court of law. Every agreement, should express purpose and situations, the need of surrogacy, free will of surrogate, details about the surrogate and the terms on which the surrogate agrees to gestate the child, etc. Assisted Reproductive Bill 2010 Considering the growing number of surrogacy cases in India and the challenges that the surrogacy would face in future, the government of India decided to come up with a law which would govern the surrogacy and ART in India. A committee of experts was setup and the said committee has now submitted a draft of the proposed bill to the government of India. The said bill is still pending with government and has not yet been presented in the parliament. The purposed draft namely ‘Assisted Reproductive Technologies’ bill 2010 has taken into consideration various aspects of surrogacy and has built in safe guards for surrogate mothers. The some of the salient features of ART Bill 2010 are as under: The process of surrogacy and giving the womb on rent, as it is popularly called is completely legal in India. Charging financial reimbursement for carrying the baby of an Indian or foreign couple would be absolutely legal. The bill defines the term ‘couple’ as two people living together and a sexual relationship that is legal according to Indian legislation. Since court has already given verdict in favour of homosexuality, a gay or lesbian couple can also go for surrogacy and it will be termed legal The age of surrogate mother has to be 21 to 35. The maximum number of ‘live births’ allowed for her would be maximum 5, including her own children. The number of donations would not be greater than six in the entire lifetime. In the case of single parent opting for surrogacy, the baby will be legitimate child for him or her. In case the intended parents are engaged in live in relationship then the child would be legitimate child of both. Intended couple would bear the complete cost of pregnancy and pay remuneration to the surrogate mother. They may give a contractual obligation under Indian legislation. In case of the intended couple being a foreign national, they have to submit the surrogacy policy of their country and a certificate regarding nationality of the surrogate child post birth. They also have to nominate a local guardian to take care of surrogate mother during pregnancy. Government certified ART banks to store complete details of surrogates and donors. The certification to ART banks would be given by state boards. This independent body would have authority to register, maintain and monitor the functioning. The determination of the sex of the baby and ‘selective child birth’ through surrogacy is illegal. Surrogacy as medium of pregnancy and child birth would be considered as legal for the couples otherwise, proved to be incapable of give birth to a child and it is not a ‘convenient mode’ of having a baby without readiness of beating pain of pregnancy and delivery. Commercial use of surrogacy for cloning or mass production would be strictly prohibited.
Landmark Judgments on Surrogacy:-
Baby Manji Yamada vs. Union of India: In the Landmark case Baby Manji Yamada v. Union of India, a Japanese couple, Dr. Ikufumi Yamada and his wife, wished to have a baby and entered into a surrogacy contract with an Indian woman in Anand, a city in the state of Gujarat where this practice was pioneered. The couple went through matrimonial discord but the father still insisted on having custody of the child. Under Indian Lawa single father cannot adopt a girl child. He sent his mother in his stead and a petition was filed before the Supreme Court. The Government seemed to be helpless in this matter as there were no laws governing the effect of surrogacy. The Apex Court directed that the National Commission for Protection of Child Rights was the apt body to deal with this issue. Justice Arijit Pasayat and Justice Mukundakan Sharma of the Supreme Court held that the father was the genetic father of the child and he was given custodial rights of the child. The Government was instructed to issue the passport to Manaji Yamada and she returned with her grand –mother. Most importantly, the Supreme Court held that the Surrogacy Agreement was valid in India. What is most noticeable in the Baby Manji Yamada case is that the stance of the Court was not only pro-surrogacy it was also extremely pro-contract. The contract was held to be valid and therefore of most importance even though what the Court granted went against a particular legislation in the country. Jan Balaz v. Anand Municipality: More recently in the matter of Jan Balaz v. Anand Municipality, a German couple entered into a contract with a surrogate mother named Marthaben Immanuel Khrishti. Twin children were born. The German couple was working in the United Kingdom and the children required Indian passports to travel. Since their citizenship was being litigated in the courts the passport authorities withheld the passports. Germany, the parent state of the German couple did not recognize surrogacy. The Supreme Court denied the passports but granted an exit permit to the children and the German authorities decided to give the couple an opportunity to adopt the children and fight for their rights. The Supreme Court of India also recommended the emergent legislation of a law on surrogacy. The Bench headed by Justice G.S. Singhvi and Justice C.K. Prasad said that no surrogate child should undergo the difficulties faced by Nicolas and Leonard who were already two years of age by the time this decision was made and had still not been granted citizenship in any country. It is clear that in the case of Jan Balaz the contract proved to be insufficient in demarcating the rights of the parties and it also brought out residual issues such as citizenship and identity that are matters of vital importance to the children but do not find place in the surrogacy agreement. In both the above case laws the courts take a very pro-contract stand possibly as a way of encouraging commercial surrogacy, which contributes millions of dollars to India’s economy.
Social Issues And Legal Issues:
New reproductive technology claim to help human beings through creative interventions that reduce suffering and have the potential to transform the society. The commercialization of surrogacy however creates several social conflicts rather than resolving a few. It generates the family pressure on pure women to offer their wombs for a price. In the other part in the world like in India the debate is focus on the ethics of surrogacy rather than on the economic advantage of any particular region. On the other hand the economic advantage is the main criteria behind going for surrogacy. Majority of the women becoming surrogates are extremely vulnerable due to poverty, lack of financial resources, low educational levels. For them the financial gain is the key factor. This makes their economic exploitation much easier for the agents for commissioning parents. The surrogates often face the dilemma that being a surrogates is socially unacceptable when the frankly accept monetary consideration. So rather than tell their neighbours that they gave away their child, they tell them that the baby died. As the surrogacy involves implantation of multiple foetuses, the unwanted foetus is aborted during the course of development.
The misuse of PNDT in the process can eliminate the female foetus resulting into imbalance of sex ratio in the country. There are cases where the surrogate mothers have refused to part with the baby. In other cases the commissioning parents have refused to accept the child with the deformity. Baby Manji’s case as there was divorce between the commissioning couple the problem arose as to the custody of the new born baby. In many cases, the caesarean delivery needs to be performed. For such surgery the consent of surrogate mother is to be obtained. Her refusal may imperil the life of the child. Confusion also exists where a surrogate mother fails to take standard care and precaution during pregnancy as a result of which harm is caused to the foetus. The high aspirations of the intending parents are ruined because of this. Surrogacy can also affect the children’s perception of the values and integrity of their family. Secrecy and anonymity create a negative environment that affects human relations within and outside families. It also involves the issues of children’s right to information about the identity of their parents. Secrecy and anonymity are routed in the social value of the primacy of ‘blood relations’.
The present practices push such children into a search of identity, a sense of shame and anger against their social parents. Commercialization of surrogacy creates several social conflicts. Given the extreme vulnerability, one-third of the Indian women due to poverty, exclusion from and marginalization in labour and job markets, patriarchal social and family structures and low educational levels, the financial gain through surrogacy become a key push factor. Since most surrogate mothers are not from well-off sections and the motive primarily is monetary so they are easily exploited by the agents working for commissioning parents. Secrecy and anonymity creates a negative environment that affects human relations within and outside families. Every act cannot be counted in terms of money; the moral and ethical issues are involved and well thought-out while the commission of every act, then isn’t it is eccentric, that our legislature is ignoring moral and ethical aspects, while drafting the ART bill: which indirectly commercializes surrogacy. We aim that our legislature passes a law which caters the need of the public at large and which is beneficial for all. There should be no law, which degrades the status of any gender. At the end, a good law is the one, which apart from economical and financial issues caters the ethical and moral sides of the society also.
Current Scenario In India:-
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. 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 fulfil material and financial 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. In fact, outsourcing surrogacy is an exploitative practice in India. Currently, no law exists to protect the surrogate mother in case of birth complication, forced abortion etc. Since 2002, commercial surrogacy has almost become legal in India and India has become a sort of leader in it. This is the reason that has led critics to allege that surrogacy business is exploiting poor women in country like India already having high maternal mortality ratio. According to estimates, which might be conservative – the business of surrogacy in India is already touching $445-million a year. Surrogate motherhood as an arrangement, in which a woman takes no ownership of the child born, has raised moral, ethical social and legal questions about both woman and the “Commissioned baby.”
According to legal experts” if surrogacy becomes an avenue by which women in richer countries choose poorer women in our country to bear their babies, then it is economic exploitation, a kind of biological colonization.” The Ministry of Women and Child Development is examining the issue of surrogate motherhood in India for bringing up a comprehensive legislation. A draft legislation on surrogacy-prepared by the Indian Council of Medical Research (ICMR) has recommended strict penalties for offenders and a tight regulation on Assisted Reproductive Techniques (ART). The draft law restricts the number of embryo transfers a mother can go through to 3 times for the same couple, if the first two attempts fail and it also adds that no woman should act as a surrogate for more than three live births in her life. In fact, these are the only guidelines framed by the ICMR and the Ministry of Health and Family Welfare in 2005. ICMR guidelines, states, “A relative, a known person as well as a person unknown to the couple may act as a surrogate mother for couple. In case of a relative acting as a surrogate, the relative should belong to the same generation as the woman desiring the surrogate.”
The experts believe that surrogacy propels childless couples needlessly toward commercial surrogacy. Section 3.10.5 of the guidelines states that “a surrogate should be less than 45 years” being the upper age without mentioning the minimum age to be surrogate. So does that mean an 18 year old or someone even younger, can become surrogate mother? Before accepting a woman as a possible surrogate for a particular couple, the ART Clinic must ensure (and put on record) that the woman satisfies all the testable criteria to go through a successful full term pregnancy.” These guidelines are skewed and thoughtless. The bifurcated role of woman in surrogate arrangements is prompting renewed assessment of the meaning of motherhood and designation of maternal rights. Surrogacy only furthers Right to Life under Article 21 of the Constitution: Therelation of the surrogated mother to the child she is carrying is nothing but womb leasing or womb for rent. After the birth of the child she has no right to keep the child because she is neither the mother (where both ova and sperm are from different persons) nor the owner of the genetic material. She is only a contractor who is willing to give the end product once the contract between her and the person is fulfilled.
Downcast of Surrogacy:-
In a developing country like India where still poverty is a major concern the poorer husbands are driven to direct their wife for surrogacy as an income generating option. Pregnancy affects the woman’s health and one cannot know all the long-term consequences of repeated pregnancies. Careful consideration must be given to the medical, emotional, legal and practical issues, and to the implications of surrendering the child at birth. Thought must also be given to the effect on any existing children, the potential surrogate mothers partner, family and friends. In case of divorce of intended parents before the completion of surrogacy the custody of child remains a question mark. Complicated situation arises when both parties refuse to take custody of child specifically when the child is born abnormal. Care should be taken that the surrogacy should be resorted by those couples who are facing medical unfitness and not for cosmetic purpose. Proper laws should be framed in order to protect for interest of surrogate mother and commissioning parents. A surrogacy arrangement should provide for financial support for surrogate child in the event of death of 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.
In the culturally enriched country like India concerns about the overuse and inappropriate use of commercial surrogacy facilitated by unscrupulous fertility clinics are above all. Surrogacy is an alternative to other fertility treatments in a bid to expand the industry and make greater profits, and fears loom that surrogacy could spin out of control. In developing country like India where poverty is playing an important factor, women may be compelled by their husbands of in-laws to become surrogates. Instances like breach of contract either by surrogate mother or commissioning couple should not be neglected. Proper guidelines should be given to control following issues: In absence of independent agency issues namely welfare of surrogate child is at stake. Refusal on part of surrogate mother to give a child to commissioning parents out of mental breakdown of mother. Several social and legal questions like whether it amounts to sale of child, breach of contract by denial of mother from handling over child, etc. should be settles. The Union Women and Child Development Ministry is clearly in favour of monetary compensation for the surrogate mothers. It’s high time to enact the laws otherwise India would be a tourism hub for surrogacy. Surrogacy carry social stigma in the society as it is equated with prostitution and by virtue of that it is argued that it should be disallowed on moral grounds. Surrogate mothers are kept in isolation from families and allowed to meet families in weekends, which are against the human rights. Hence, there are number of ethical, social, legal and psychological issues associated with surrogacy, which require urgent need for framing and implementation of law.
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