- Explain – Surrogate Motherhood.
- Who is the legal parent?
- What are the rights of the surrogate mother and parents of the child?
- Explain the contractual aspect and enforceability. What are the issues with Surrogacy?
Surrogacy
As per National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India published by Ministry of Health and Family Welfare, Surrogacy is defined as follows – Surrogacy is an arrangement in which a woman agrees to carry a pregnancy that is genetically unrelated to her and her husband, with the intention to carry it to term and hand over the child to the genetic parents for whom she is acting as a surrogate.
The basic idea is that in Surrogate Motherhood, a woman gives birth to a child for someone else. The intention of the birth mother is to give up the child to the party that has commissioned her to deliver the baby. A surrogate mother is a woman who is pregnant with the child and intends to relinquish it after birth. The word surrogate, from Latin subrŏgare (to substitute), means appointed to act in the place of. The intended parent(s) is the individual or couple who intends to rear the child after its birth.
Intended parents may arrange a surrogate pregnancy because of female infertility, or other medical issues which may make the pregnancy or the delivery risky. A female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy. Alternatively, the intended parent may be a single male, a male homosexual couple, or a single woman who is unable to bring a pregnancy to full term.
There are several kinds of Surrogate Motherhood –
In traditional surrogacy (aka the Straight method) 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, either male or female. The child may be conceived via home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra cervical 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 female and where the child is commissioned by a single woman.
In gestational surrogacy (aka the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is unrelated to the child (e. g. because the child was conceived using egg donation, sperm donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.
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, and other related expenses).
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 well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms “wombs for rent”, “outsourced pregnancies” or “baby farms”.
Contractual Aspects of Surrogacy
There has been a major change in Indian surrogacy laws. The law regarding Surrogacy is governed by Assisted Reproductive Technology (Regulation) Bill & Rules, 2008. India is now the only country in the world to legalize commercial surrogacy. Unlike in other countries, including the UK, USA, and France, in India, the surrogacy agreements between the two parties are legally enforceable. The new law will protect all parties — the genetic parents, surrogate mother, and the child.
The following are its salient features –
1. The new Assisted Reproductive Technology (Regulation) Bill & Rules, 2008, legalizes commercial surrogacy, stating that the surrogate mother may receive monetary compensation for carrying the child in addition to healthcare and treatment expenses during pregnancy. It further, states that the surrogate mother can receive monetary compensation for carrying the child in addition to health-care and treatment expenses during pregnancy. But the surrogate mother has to relinquish all parental rights over the child once the amount is transferred and birth certificates will be in the name of genetic parents.
2. Single parents can also have children using a surrogate mother
3. The prescribed age limit for a surrogate mother is between 21- 45 years. The proposed Bill also states that no surrogate mother can undergo an embryo transfer more than three times for the same couple.
4. All foreigners seeking infertility treatment in India will first have to register with their embassy. Their notarised statement will then have be handed over to the treating doctor. The foreign couple will also state whom the child should be entrusted to in case of an eventuality such as a genetic parent’s death.
Who are the Legal Parents of a Surrogate Child
The new Assisted Reproductive Technology (Regulation) Bill & Rules, 2008, states that the surrogate mother has to relinquish all parental rights over the child once the amount is transferred and birth certificates will be in the name of genetic parents. Thus, the birth mother does not have any rights on the child.
A child born through ART shall be presumed to be the legitimate child of the couple, born within wedlock, with consent of both the spouses, and with all the attendant rights of parentage, support and inheritance. Sperm/oocyte donors
shall have no parental right or duties in relation to the child, and their anonymity shall be protected.
Determination of status of the child –
- A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through sexual intercourse.
- A child born to an unmarried couple through the use of assisted reproductive technology, with the consent of both the parties, shall be the legitimate child of both parties.
- In the case of a single woman the child will be the legitimate child of the woman, and in the case of a single man the child will be the legitimate child of the man.
- In case a married or unmarried couple separates or gets divorced, as the case may be, after both parties consented to the assisted reproductive technology treatment but before the child is born, the child shall be the legitimate child of the couple.
- A child born to a woman artificially inseminated with the stored sperm of her dead husband shall be considered as the legitimate child of the couple.
- The birth certificate of a child born through the use of assisted reproductive technology shall contain the name or names of the parent or parents, as the case may be, who sought such use.
Rights of a Surrogate Child
- A child born through ART shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses. Therefore, the child shall have a legal right to parental support, inheritance, and all other privileges of a child born to a couple through sexual intercourse.
- Children born through the use of donor gametes, and their “adopted” parents shall have a right to available medical or genetic information about the genetic parents that may be relevant to the child’s health.
- Children born through the use of donor gametes shall not have any right whatsoever to know the identity (such as name, address, parentage, etc.) of their genetic parent(s). A child thus born will, however, be provided all other information about the donor as and when desired by the child, when the child becomes an adult. While the couple will not be obliged to provide the above “other” information to the child on their own, no deliberate attempt will be made by the couple or others concerned to hide this information from the child as and when asked for by the child.
- In the case of a divorce during the gestation period, if the offspring is of a donor program – be it sperm or ova – the law of the land as pertaining to a normal conception would apply.
- To make the couple aware, if relevant, that a child born through ART has a right to seek information (including a copy of the DNA fingerprint, if available) about his genetic parent/surrogate mother on reaching years, excepting information on the name and address – that is, the individual’s personal identity – of the gamete donor or the surrogate mother. The couple is not obliged to provide the information to which the child has a right, on their own to the child when he/ she reaches the age of 18, but no attempt must be made by the couple to hide this information from the child should an occasion arise when this issue becomes important for the child.
- The birth certificate issued in respect of a baby born through surrogacy shall bear the name or names of the parent or parents, as the case may be, who sought such use.
Rights of a Surrogate Mother
- A surrogate mother signs a contract with the parents for whom she is supposed to carry the child to term. The surrogate mother has the right to enforce the contract and avail the benefits that the contract provides.
- All expenses, including those related to insurance, of the surrogate related to a pregnancy achieved in furtherance of assisted reproductive technology shall, during the period of pregnancy and after delivery as per medical advice, and till the child is ready to be delivered as per medical advice, to the biological parent or parents, shall be borne by the couple or individual seeking surrogacy.
- Subject to the surrogacy agreement, the surrogate mother may also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate.
- If the first embryo transfer has failed in a surrogate mother, she may, if she wishes, decide to accept on mutually agreed financial terms, at most two more successful embryo transfers for the same couple that had engaged her services in the first instance. No surrogate mother shall undergo embryo transfer more than three times for the same couple.
- A surrogate mother shall be given a certificate by the person or persons who have availed of her services, stating unambiguously that she has acted as a surrogate for them.
Duties of a Surrogate Mother
- A surrogate mother shall relinquish all parental rights over the child.
- No woman under twenty-one years of age and over forty-five years of age shall be eligible to act as a surrogate mother under this Act.
- No woman shall act as a surrogate for more than three successful live births in her life.
- Any woman seeking or agreeing to act as a surrogate mother shall be medically tested for such diseases, sexually transmitted or otherwise, as may be prescribed, and all other communicable diseases which may endanger the health of the child, and must declare in writing that she has not undergone intravenous medical treatment or received a blood transfusion.
- A surrogate mother shall, in respect of all medical treatments or procedures in relation to the concerned child, register at the hospital or such medical facility in her own name, clearly declare herself to be a surrogate mother, and provide the name or names and addresses of the person or persons, as the case may be, for whom she is acting as a surrogate.
- A surrogate mother shall not act as an oocyte donor for the couple or individual, as the case may be, seeking surrogacy.
- In the event that the woman intending to be a surrogate is married, the consent of her spouse shall be required before she may act as such a surrogate.
- A relative, a known person, as well as a person unknown to the couple, may act as a surrogate mother for the couple. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the woman desiring the surrogate.
Rights of a the patients (i.e. the couple who wants the child)
- ART shall be available to all persons including single persons, married couples and unmarried couples. In case ART is used by a married or unmarried couple, there must be informed consent from both the parties.
- The parents of a minor child have the right to access information about the donor, other than the name, identity or address of the donor, or the surrogate mother, when and to the extent necessary for the welfare of the child.
- All information about the patients shall be kept confidential and information about ART procedures done on them shall not be disclosed to anyone other than the central depository of the ICMR, except with the consent of the person or persons to whom the information relates,or by a court order.
Duties of the patients
- The person or persons who have availed of the services of a surrogate mother shall be legally bound to accept the custody of the child/children irrespective of any abnormality that the child/children may have, and the refusal to do so shall constitute an offense under this Act.
- A foreigner or foreign couple not resident in India, or a non-resident Indian individual or couple, seeking surrogacy in India shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after the pregnancy, till the child/children are delivered to the foreigner or foreign couple or the local guardian. Further, the party seeking the surrogacy must ensure and establish to the ART clinic through proper documentation that the party would be able to take the child/children born through surrogacy, including where the embryo was a consequence of donation of an Oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be.
- A couple or an individual shall not have the service of more than one surrogate at any given time.
- A couple shall not have the simultaneous transfer of embryos in the woman and in a surrogate.
Rights of a Donor
- All information about the donors shall be kept confidential and information about gamete donation shall not be disclosed to anyone other than the central database of the Indian Council of Medical Research, except with the consent of the person or persons to whom the information relates, or by an order of a court of competent jurisdiction.
- Subject to the other provisions of this Act, the donor shall have the right to decide what information may be passed on and to whom, except in the case of an order of a court of competent jurisdiction.
Duties of a Donor
- A donor shall relinquish all parental rights over the child which may be conceived from his or her gamete.
- No assisted reproductive technology procedure shall be conducted on or in relation to any gamete of a donor under this Act unless such donor has obtained the consent in writing of his or her spouse, if there, to such procedure.
Issues with Surrogacy
The basic tenets of any medical treatment mentioned in the Helsinki Declaration of 1964 and reiterated in October 2000 in Scotland (information available on the Internet) clearly spell out the ethical concerns of treating patients. These basic tenets are also applicable to ART. The clinic must ensure that a particular ART being offered is fully in consonance with the diagnosis made of the cause of infertility. More particularly, the clinic must make sure that patients are well informed about the treatment being offered to them, the reasons of suggesting a particular form of treatment, and alternative therapies available if any.
Possible misuse of ART – sale of embryos and stem cells
There is a growing interest in embryonic stem cells because of their potential use for developing spare organs or replacing defective tissues such as parts of the brain destroyed due to Alzheimer’s disease, or pancreatic cells in diabetic patients. The range of their potential use is limited only by one’s imagination. ART clinics are the only source of embryonic stem cells. Spare embryos are either frozen or returned to the infertile couple for replacement during a later cycle, or donated to another infertile couple, or discarded after five years using a suitable protocol (Section 3.11).
Recently, the USA banned all federal support for embryonic stem cell research unless the laboratories could demonstrate that they had developed embryonic stem lines before August 10, 2001. However, private funding is allowed which encourages scientists in the USA to procure stem cells from abroad. Germany has banned all research on embryos produced in that country but permits the use of embryos brought from abroad.
The stand taken by the foreign governments on embryo research opens up the possibility of embryos from developing countries that do not have appropriate national guidelines in this area, being commercially exploited and sold to foreign countries. Therefore sale or transfer of human embryos or any part thereof, or of gametes in any form and in any way – that is, directly or indirectly – to any party outside the country must be prohibited. Within the country, such embryos or gametes could be made available to bonafide researchers only as a gift, with both parties (the donor and the donee) having no commercial transaction, interest, or intent.
Keywords: Surrogate Motherhood, Surrogate Motherhood: Notes, Surrogate Motherhood in India, Surrogate Motherhood Definition, Concept of Surrogate Motherhood
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