LEGAL RECOURSE FOR CHILDLESS COUPLES
Author : Saumya Snehal, CNLU Patna.
Procreation of life is a beautiful gift that has been bestowed by God on women, to cherish a life within her and to watch that tiny blessing grow up is the greatest joy a woman can ever experience, a dream she holds since she is old enough to understand the world around her. However some women are inopportune of this gift and the desire for the same leads them to find an alternative in surrogacy.
Internationally, Surrogacy is a part of a legal and medical system with stringent laws and costly procedures carefully designed to prevent misuse. This depicts the importance associated with pregnancy not becoming a service and the baby not a commodity to be afforded. India, however, has surrogacy as an unregulated industry where the medical amenities are cheap, gynecological wisdom is immense, socio-economic perils prevail and the legal system incapable of adequate justice.
The financial consideration provided to the surrogate mother is so low in India, it appears absurd in comparison to the psychological ordeal undergone; however, in families lacking the requisite economic lifeblood, it is gold. However, ordeals are many in this journey of surrogacy motherhood as there are ethical, social and legal questions that don’t have satisfactory answers to them.
What is Surrogacy?
A pregnancy may be carried by the egg donor (traditional surrogate)or by another woman who has no genetic relationship to the baby (gestational carrier). If the embryo is to be carried by a surrogate, pregnancy may be achieved through insemination alone or through ART. The surrogate will be biologically related to the child. If the embryo is to be carried by a gestational carrier, the eggs are removed from the infertile woman, fertilized with her partner’s sperm, and transferred into the gestational carrier’s uterus. The gestational carrier will not be genetically related to the child. All parties benefit from psychological and legal counseling before pursuing surrogacy or a gestational carrier.
In 2002, Surrogacy was some what legalized by Indian Council for Medical Research Issuing pro-surrogacy guidelines providing protection to the surrogate mother as well as the parents of the child in question. Some of the highlights of these ICMR guidelines were prohibition of sex-selective surrogacy, birth certificate to include only the names of commissioning parents, one of the parents to mandatorily be a donor, life insurance cover for the surrogate mother as well as ensured right of privacy for both the parent donor as well as the surrogate mother.
Surrogacy (Regulation) Bill, 2016
The Cabinet approved Surrogacy (Regulation) Bill, 2016 was introduced in November, 2016 in the LokSabha with the objective of preventing exploiting of surrogate mothers and hence abolishing commercial surrogacy. Commercial Surrogacy is defined as “surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage”. Abolishing Commercial surrogacy this bill thereby allows altruistic surrogacy wherein surrogacy is permitted only when the surrogate mother is a close relative of the commissioning parents and the couple is infertile. It penalizes instances of commercial surrogacy, abandonment of surrogate child, exploitation of the surrogate mother and trade in human embryos. Furthermore, for the ease of administration it requires all surrogacy clinics to be registered and maintain records of surrogacy for 25 years.
Assisted Reproductive Technology under National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India and Draft Bill/Rules, 2010
It is imperative to note here that the Surrogacy Bill, 2016 would work in consonance with the Assisted Reproductive Technology (Regulation) Bill, 2010 to regulate this sphere of parents adopting separate means for achieving their desire to have a child. The practice of ART involves social issues of eligibility, surrogacy, and consent for Posthumous use, genetic diagnosis and selection and gene therapy, and storage of gametes and embryos. Given that progressivism embodies an openness to change, a healthy respect for facts and nuanced arguments, and a drive for pragmatic solutions, the progressive movement can lead the way in forging just policies regarding these new ways of creating families.
Under this law, both the couple or individual seeking surrogacy through the use of assisted reproductive technology, and the surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable. All expenses, of the surrogate related to a pregnancy achieved in furtherance of assisted reproductive technology shall, shall be borne by the couple or individual seeking surrogacy and the surrogate mother may also receive monetary compensation from the couple or individual.
A surrogate mother shall relinquish all parental rights over the child. No woman less than twenty one years of age and over thirty five years of age shall be eligible to act as a surrogate mother under this Act. Any woman seeking or agreeing to act as a surrogate mother shall be medically tested for such diseases. Individuals or couples may obtain the service of a surrogate through an ART bank. 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.
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 and no surrogate mother shall undergo embryo transfer more than three times for the same couple. The birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of individual / individuals who commissioned the surrogacy, as parents and the person who have availed the services of a surrogate mother shall be legally bound to accept the custody of the child and the refusal to do so shall constitute an offence under this Act.
All information about the surrogate shall be kept confidential and information about the surrogacy shall not be disclosed to anyone other than the central database of the Department of Health Research, except by an order of a court of competent jurisdiction and no assisted reproductive technology clinic shall provide information on or about surrogate mothers or potential surrogate mothers to any person.
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 surrogate and 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. A relative, may act as a surrogate mother for the couple/ individual. A foreigner 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. A couple or an individual shall not have the service of more than one surrogate at any given time. A couple shall not have simultaneous transfer of embryos in the woman and in a surrogate and only Indian citizens shall have a right to act as a surrogate, and no ART bank/ART clinics shall receive or send an Indian for surrogacy abroad.
Any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act that would harm the foetus during pregnancy and the child after birth, until the time the child is handed over to the designated person(s).The commissioning parent(s) shall ensure that the surrogate mother and the child she deliver are appropriately insured until the time the child is handed over to the commissioning parent(s) or any other person as per the agreement and till the surrogate mother is free of all health complications arising out of surrogacy.
ART does not form a part of the medical curriculum anywhere in India although the number (10 – 15% of the adult population in the reproductive age group) of infertile couples needing ART is quite large. Both these bills dealing with the important issue of surrogacy have one inherent shortcoming that single parents, homosexuals, live-in couples are prohibited from becoming commissioning parents for the surrogate baby. Also the abolishing of commercial surrogacy rather than abolition of the same has received a lot of flak as a recent study backed by the UN projected the surrogacy industry at more than $400 million with an approximation of 3000 fertility clinics will be losing livelihood and income as a result of these legislations. Both these legislations remain pending and hence a concurrence and agreement between the two is desirable to regulate the surrogacy industry and protect all the concerned parties.