Surrogacy in India- An Overview

Bandana Saikia -

Surrogacy comes from the Latin word surrogatus, which signifies "to substitute." In simple words, it refers to a person designated to act in the absence of another. It is a process in which a woman agrees to become pregnant and have a child for the purpose of transferring the kid to another person(s) at or shortly after delivery. Surrogacy frequently entails three parties: the surrogate mother, the intended parent(s), and the surrogacy agency/hospital. According to the Assisted Reproductive Technologies (Regulation) Bill, 2010, surrogacy is an agreement in which a woman agrees to carry and pass over a child to the person or people for whom she is acting as a surrogate. The pregnancy is achieved by assisted reproductive technology, and none of the gametes belong to her or her spouse.

TYPES OF SURROGACY

  1. Partial or Traditional Surrogacy- Intrauterine insemination (IUI), in-vitro fertilization (IVF), or home insemination are all methods for artificially inseminating the surrogate mother with the intended father's sperm. The surrogate's own eggs will be used in this sort of surrogacy. The child born as a result of this procedure is genetically connected to both the surrogate mother and the father.
  2. Traditional Surrogacy and Donor Sperm - Intrauterine insemination (IUI), in-vitro fertilization (IVF), or home insemination are all methods for artificially inseminating the surrogate mother with the donor's sperm. The surrogate mother and sperm donor are genetically connected to the new baby.
  3. Gestational or Total Surrogacy- In this sort of surrogacy, the eggs of the intended mother (who is unable to have a kid due to a hysterectomy, diabetes, cancer, or other reasons) are combined with the sperms of the intended father to generate an embryo, which is then transferred into and carried by the surrogate mother. The child is genetically related to its biological parents, whereas the surrogate mother is just a carrier and has no genetic ties to the child.
  4. Gestational Surrogacy and Egg Donation- If the intended mother is not available or is unable to produce eggs, the surrogate mother carries the embryo created from a donor egg fertilized by the intended father's sperm. The kid born as a result of this process is genetically connected to the intended father, while the surrogate mother is not.
  5. Gestational Surrogacy and Donor Sperm- In the same way that an embryo is created with the help of the intended mother's eggs and donor sperms in the absence or inability of the intended father to produce sperms, an embryo is created with the help of the intended mother's eggs and donor sperms in the absence or inability of the intended father to produce sperms. The sperm donor and the intended mother are both genetically linked to the new born.

Types of Surrogacy (based on arrangements)

  1. Altruistic Surrogacy - A circumstance in which the birth mother receives no formal contract or remuneration. It's frequently a deal made between close friends or family members. The most important factor is a surrogate mother's pregnancy and termination of her parental rights once the baby is born. In this case, the surrogate is compensated solely for the agony she has endured, which may include reimbursement of medical and other expenditures, or she is not compensated with all.
  2. Commercial Surrogacy - Wombs-for-hire or outsourced pregnancies are the common terms for this method. Unlike altruistic surrogacy, this type of surrogacy entails paying a large quantity of money as income to the surrogate for the services she provides, as well as any expenses spent during her pregnancy, and is thus viewed as a business opportunity. The birth mother and the commissioning couple are frequently strangers.
  3. Surrogacy Parenting Agreement- This is the contract between a woman and an infertile couple in which the lady agrees to carry an embryo during pregnancy in her uterus. A contract between a man (the intentional father) and a woman (the surrogate mother) under which the surrogate mother agrees to (1) bear a child for the intentional parent and (2) abandon all rights to her child. The agreement normally states that after the kid is born, the woman will renounce any parental rights she may have to the couple. If the surrogate mother is married, her husband must agree to the surrogacy contract's provisions as well. The surrogacy agreement should cover all aspects of the intended parents', surrogate mothers, and child's connection. The payment module to the surrogate mother is included in the agreement's contents. The agreement defines the surrogate's and intended parent's liability to the extent that either of the parties to the agreement has consented.
  4. Surrogacy Arrangement Agreement- This is the agreement between the intended parents and the hospital/agency that establishes the terms and conditions under which the parties will behave themselves during the surrogacy program. This agreement will include information such as the pricing structure, procedure dates, payment methods, medical tests to be performed, embryo implantation dates, and other medical procedures, among other things. This arrangement is legally binding, and intended parents can rest assured that they will get the services described in the Surrogacy Arrangement Agreement.
  • Baby M case of United States of America - Mrs. Whiteheads consented to be a surrogate mother and deliver the kid to the Stern couple after delivery in exchange for $10,000 in exchange for termination of all rights. After the kid was born, Whitehead refused to hand over custody and fled to Florida, where she was sued in state court in New Jersey for breach of contract. The contract was upheld by the trial court — the case was appealed to the New Jersey Supreme Court. The Supreme Court partially upheld and partially overturned the trial court's decision. Primary custody was given to Sterns – visitation rights to Whiteheads and on the certificate as a legal mother. Further, the Court held the surrogacy contract invalid in contravention of public policy and termination of parental rights in lieu of consideration.
  • Baby Manji Yamada Case -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 Law 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 grandmother. 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 particular legislation in the country.
  • Jan Balaz v. Anand Municipality and Ors. Case - In Anand, Gujarat, a German couple working in the UK commissioned surrogacy using donor eggs and a surrogate mother. Mr. Balaz is biologically connected to the twins that were born. Surrogacy is illegal and outlawed under German law, hence passports were denied. An exit permit was granted, as well as the possibility to adopt the twins.

REGULATION OF SURROGACY IN INDIA

Due to the lack of legislative action, the Indian Council of Medical Research developed some ethical (non-binding) standards. The ICMR established Ethical Guidelines for Biomedical Research on Human Participants in 2000, which included specific guidelines for dealing with Assisted Reproductive Technologies in general. The ICMR submitted a draft titled "National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics, 2002" to the Ministry of Health and Family Welfares in 2002, but it was not implemented. After consultation with the National Academy of Medical Sciences, ART practitioners, and the Ministry of Health and Family Welfare, the same draft was updated and adopted by ICMR Guidelines in 2005.

ICMR GUIDELINES, 2005

The law was passed with the goal of regulating ART clinics in India. Surrogacy is defined as "an arrangement in which a woman agrees to carry a pregnancy that is genetically unrelated to her and her husband with the purpose of carrying the pregnancy to term and handing the child over to the genetic parents for whom she is acting as a surrogate." (R.1.2.33) Surrogacy via ART should typically be explored exclusively for patients who are unable or unwilling to carry a child due to physical or medical reasons.

  • A surrogate mother should not be older than 45 years old, and she may only act as a surrogate three times in her lifetime.
  • Before approving a woman as a surrogate for a specific couple's child, the ART clinic must check (and document) that she meets all of the tested criteria for a successful full-term pregnancy.
  • Any woman, known or unknown, can act as a surrogate mother for the intended pair - with the exception that if the surrogate is a relative, the relative must be of the same generation as the woman requesting the surrogate.
  • An oocyte (an immature egg cell) donor cannot act as a surrogate mother for the couple receiving the oocyte.
  • The surrogate must give informed consent, which must be witnessed by someone who is not affiliated with the facility.
  • The couple considering surrogacy should cover all of the surrogate mother's expenses during the pregnancy and post-natal care related to the pregnancy.
  • The surrogate mother would also be entitled to monetary remuneration from the couple in exchange for consenting to act as a surrogate. Payments to surrogate mothers should cover all legitimate pregnancy expenditures. Documented proof of the surrogacy financial agreement is required; the ART center should not be involved in this financial component.
  • The standards also provide that the surrogate child's birth certificate must be in the genetic parents' name.
  • A child born through ART is believed to be the couple's legitimate child, born within wedlock with both spouses' agreement, and with all parental and inheritance rights, it entails.
  • The guidelines also try to protect the child's interests by prohibiting sex selection at any point after fertilization, as well as abortion of a baby of either sex, unless the danger of transmission of a genetic condition is determined through genetic testing of biological parents.

ART (Regulation) BILL, 2020

The bill calls for the regulation and oversight of assisted reproductive technology clinics and banks, as well as the avoidance of misuse, the safe and ethical conduct of assisted reproductive technology services, and other topics related to or incidental to these services. This Bill changed the definition of infertility to include the inability to conceive after one year of unprotected coitus or another confirmed medical condition that prevents a couple from conceiving - the previous waiting period was five years. Surrogacy is available to single women (whether divorced or widowed) in addition to married couples. Commercial surrogacy was prohibited, but altruistic surrogacy was permitted.

Married couples or women can commission ART services if:

i. the lady is over the legal age of marriage and up to 50 years old, and

ii. the guy is over the legal age of marriage and up to 55 years old.

Married couples must also be infertile, meaning they haven't been able to conceive after a year of unprotected coitus or have a medical condition that hinders conception.

Offences and Penalties - For sex-selective ART, the penalty shall be not less than five years but not more than ten years in prison, or a fine of not less than ten lakh rupees but not more than twenty-five lakh rupees, or both.

For abandoning a child born through surrogacy, selling human embryos, etc. – shall be punished with a fine of not less than five lakh rupees but not less than ten lakh rupees (for the first contravention) – shall be punished with imprisonment for a term not less than eight years but not more than twelve years and a fine of not less than ten lakh rupees but not less than ten lakh rupees (for the second contravention) – shall be punished with imprisonment for (for subsequent contravention).

Surrogacy's moral, ethical, and theological concerns are rooted in the idea that life is a gift from God, and humans should not try to play God by meddling with natural processes.

The main legal obstacle against surrogacy goes to the very heart of the practice, which is the need and requirement for a woman to function as a surrogate mother. Surrogate motherhood has been challenged by a number of academics as posing intolerable dangers to women, including bodily, psychological, and symbolic hazards such as objectification and commodification.

The “liberty interests safeguarded by the Constitution do not alter definition because of the presence or absence of reproductive technology,” according to the argument. In a nutshell, the difficulties surrounding surrogacy include the right of the kid to know his or her parents, the golden triangle test for surrogacy regulation in India, the legitimacy of surrogacy contracts, and embryo wastage.

  • Right to Know the Parents - Laxmikant Pandey versus Union of India (1984) - Dealing with the domestic and Inter-country adoption, the question with regard to the right of the child knows is biological parents were raised, the SC observed –“…But if after attaining the age of maturity, the child wants to know about its biological parents, there may not be any serious objection to the giving of such information to the child because after the child has attained maturity, it is not likely to be easily affected by such information and in such a case, the foreign adoptive parents may, in exercise of their discretion, furnish such information to the child if they so think fit.” A child has the right to know about his or her origins, according to Article 7(1) of the 1992 Convention on the Rights of the Child.
  • Golden Triangle Test–
  1. Right to equality (Article 14) Surrogacy operations are only available to Indian married couples under the Surrogacy (Regulation) Bill 2016, the Surrogacy (Regulation) Bill 2019, the ART Bill 2020, and the Government's 2015 circular (later on included widow). However the same-sex couples continue suffering from such a set-up allowing only married couples to opt for surrogacy.
  2. Right to Livelihood and Right to Reproductive Autonomy (Article 21) - Commercial surrogacy ban – infringed on the right to livelihood (recognized in Consumer Education and Research Centre and Ors, v. Union of India & Olga Tellis v. Bombay Municipal Corporation). In addition, the Bill and circulars infringed on women's right to reproductive autonomy (as recognized in Justice K. S. Puttaswamy v. Union of India Case (para 38, 46, and 72) and Suchita Srivastava v Chandigarh Administration Case) - interpreted the right to reproductive autonomy to mean that parents have the prerogative to choose the mode of parenthood, either naturally or otherwise (as recognized in Justice K. S. Put (in this case, surrogacy)
  3. Freedom of trade and profession (Article 19) - The surrogacy sector in India is estimated to be worth roughly 4-5 billion dollars, which is the bread and butter for both surrogates and ART clinics, according to numerous studies. The interests of these parties are jeopardized by a blanket prohibition.
  • The Legality of Surrogacy Contracts- Surrogacy contracts are governed by a statute that is both imprecise and uncertain. Surrogacy contracts are governed by different laws in different nations when it comes to their legitimacy and enforceability. Some countries consider these contracts to be unlawful, while others have their own regulations in place to govern them. Surrogate contracts are widely criticized in India as being against public policy because they entail a woman using her womb to bear a kid, which is then handed over to the other party for a fee, thus renting a womb and selling the child. According to the Indian Contract Act of 1872, a contract that is contrary to public policy is null and void.
  • Wastage of Embryos - Surrogacy is an artificial reproductive procedure in which an egg is fertilized with sperm and an embryo is formed in vitro, and then the produced embryo is transferred to the womb of a surrogate mother. To achieve success, this technique usually entails multiple efforts and trials. As a result, there is a waste of embryos, eggs, and sperm. It is said that life begins at conception, and hence the destruction of embryos is comparable to murder.