STATU-QUO OF SURROGACY LAWS IN INDIA

      SURROGACY LAWS IN INDIA - ALL YOU NEED TO BE AWARE ABOUT

Surrogacy is a new and great scientific achievement done in the field of science. New inventions leads to new legal provisions and the same are there in the case of surrogacy. The Assisted Reproductive Technologies (Regulation) Bill, 2010 is a new provision in India which regulates the surrogacy related laws. The surrogacy arrangement and the types of surrogacy arrangements is something to be discussed upon.  The implications of rights and obligation of the couple opting for surrogacy and the birth mother should be known. Though surrogacy is cheap in India but the legal procedures attached with it, makes surrogacy a complex method for any couple to opt for a child through surrogacy. Implications of rights and obligation of the parties need to be followed very strictly to govern law properly. Surrogacy is a method of voluntary reproduction whereby a woman agrees to become pregnant for the purpose of incubating and giving birth to a child for others mainly the parents who are not able to conceive the child. Surrogacy is a very delicate matter for the parties, doctors, judiciary etc to deal with. For surrogacy proper care of the mother regarding her right to health, reproductive health and human rights should be taken. 

INTRODUCTION

Unimaginable technologies have come true in sexual arena with the birth of child taking place in the form of test tube babies, surrogate motherhood through newer technologies. The understanding of the creation of the human body is still a mystery the body which acts as a wonderful machine. The desire for motherhood leads them to search for alternative solutions, and surrogacy presents itself as the most viable alternative. Any reproductive technique that replaces the conjugal act is violation of the dignity of procreation when human procreation is disconnected from sexual relation, the spouses can quickly become objects for sex. It becomes difficult to recognize dignity of each other especially in the case of pre born child. The progress in the field of science and technology has though made many contributions but has created more moral/ethical controversies. Practice of being a surrogate mother has acted has the opportunity of exploitation especially in case rural women in India who sees this has the opportunity of upliftment from the poverty this creates the future nightmare of developing country baby farm. In case of surrogate mother in India, it becomes hard to differentiate between the situation if the surrogate mother is doing it with her will or is forced to do so by her-in-laws or by her husband to fulfill their financial needs and material demands. In India surrogacy became real in 2002 but a proper legislation for analyzing the status of the surrogate mother under The Assisted Reproductive Technologies (Regulation) Bill, 2010 and yet the proper legislation is needed for the identification of rights and liabilities of the surrogate mother has well as the family opting for surrogacy.

CONCEPTUAL ASPECTS OF 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 who has commissioned her to deliver the baby. A surrogate mother is the 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 rears 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.

AGREEMENT RELATING TO SURROGACY PARENTING:-

A contract between a woman and typically an infertile couple under which the woman provides her uterus to carry an embryo throughout pregnancy; esp., an agreement between a person (the intentional parent) and a woman (the surrogate mother) providing that the surrogate mother will 

(1) bear a child for the intentional parent, and

 (2) relinquish any and all rights to her child.

If the surrogate mother is married, her husband must also consent to the terms of the surrogacy contract. The agreement usually provides that the woman will relinquish to the couple any parental rights she may have upon the birth of the child. A surrogacy arrangement means an arrangement where a woman (the birth mother) agrees to carry a child for another person or a couple (the arranged parent(s)) with the intention that the child will be raised by those arranged parents. The surrogacy arrangement must meet strict requirements set out in the Surrogacy Act 2008 and must be approved by the Reproductive Technology Council. A surrogacy arrangement can only be made before the birth mother becomes pregnant.

ELIGIBILITY FOR SURROGACY

 There is always the international laws concerning to the protection and the health matters of the surrogate mother and the baby.Assisted Reproductive Technology(ART) (such as artificial fertilization or IVF) in WA is regulated under legislation known as the Human Reproductive Technology Act 1991. Persons wishing to pursue a surrogacy arrangement must meet certain criteria set out in this legislation. An eligible person means a woman who:

1. Is unable to conceive a child due to medical reasons; or
2. Although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease; or
3. Although able to conceive a child, is unable for medical reasons to give birth to a child.

There are further restrictions on who is eligible for a surrogacy arrangement. For example, a woman who can no longer conceive a child as she is postmenopausal will not be eligible to pursue a surrogacy arrangement (this may not be the case for women with premature menopause).

CRITERIA FOR BECOMING SURROGATE MOTHER:-

(a) A surrogate must be in good overall health.

(b) No medical problems which could lead to complication with pregnancy.

(c) She should not be overweight, heavy smoker, drinker or substance abuser not suitable as surrogate mother, because of the associated risk both to the woman and to the baby.

 (d) Surrogate mother should borne at least one child previously and preferably has completed her own family.

(e) She should give her own consent.

(f) She should be below age of 35 years.

(g) Being a surrogate mother is an emotionally and physically demanding task. So there should be a backing of partner, family or friends.

(h) Careful consideration must be given to the medical, emotional, legal and practical issues.

HEALTH RISKS TO THE SURROGATE MOTHER

There are various risks to the health of surrogate mother which leads to health effects to the child. If there is any risk to the health of child due to change in the There is a risk of transmitting infection, such as HIV or Hepatitis, to the surrogate mother from the infected parents. This risk can be reduced by testing and if the sperm or embryos are quarantined, the risk is very low. In full surrogacy, when more than one embryo is replaced onto the surrogate mother’s uterus, the risk of multiple pregnancy increases. Around 20 to 25 per cent of pregnancies resulting from in vitro fertilization will result in a multiple pregnancy of twins or triplets, depending upon the number of embryos replaced. This carries associated risk for both mother and babies and there are serious implications for the intended parents of raising children from a multiple pregnancy. Careful consideration should be given to the number of embryos to be replaced. Every month a large number of surrogacy success stories are reported yet there are some risks associated with surrogate motherhood in India involving ethnic factors as well. Pregnancy is fraught with risks at all stages and puts a huge mental and physical strain on the surrogate mother. The surrogacy laws of western countries may not be compatible with those in India. Negligence of the health of the mother and child by the fertility clinics can lead to the complete wastage of the entire procedure.

Analysis of Artificial Reproduction Technology (Regulation) Bill, 2010

 The Artificial Reproductive Technology (Regulation) Bill, 2010 defines surrogacy as an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention of carrying it to term and handing over the child to the person or persons for whom she is acting as surrogate; and a surrogate mother is a woman who agrees to have an embryo generated from the sperm of a man who is not her husband, and the oocyte for another woman implanted in her to carry the pregnancy to full term and deliver the child to its biological parents.  The Bill empowers a National Advisory Board to act as the regulatory body laying down policies and regulations. It also seeks to set up State Advisory Boards that are, in addition to advising state governments, charged with monitoring the implementation of the provisions of the Bill. The Bill lays down conditions that the surrogate mothers have to meet and obtaining relevant information, informing all parties involved about their rights and obligations. The Bill specifies what is and is not allowed regarding these topics. In practice this entails that ART clinics are not allowed to provide any information about surrogate mothers or potential surrogate mothers to any person. This creates a problem for intended parents since they have to turn to a middleman in order to find a surrogate mother.

The present Assisted Reproductive Technology (Regulation) Bill, 2010 is yet to materialize into a much needed official regulatory mechanism and is undergoing debate amongst various ministries. The delay in enacting a legislation to regulate an industry that has been booming for almost a decade seems absurd because the bill was drafted as a response to demands for the regulation of the surrogacy industry and even four years after the first draft, there seems no sign of legislation. What further escalates the situation is that each time the draft bill is sent around for circulation, in an attempt to redress existing loopholes, newer aberrations arise.

Rights of the Surrogate Mother under the ART Bill, 2010 provisions

 According to the provisions of the ART Bill, 2010 there are so many rights has been provided to the surrogates.

• The surrogate mother will receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate.

• 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 Bill, provided that no woman shall act as a surrogate for more than five successful live births in her life, including her own children.

•  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, along with a copy of the certificate.

• 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.

• 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.

• 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 offence under this Bill.

• 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.

• 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.

• 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.

Duties of a Surrogate Mother:-

1. A surrogate mother shall relinquish all parental rights over the child. 
2. No woman less than twenty one years of age and over forty five years of age shall be eligible to act as a surrogate mother under this Act. 
3. No woman shall act as a surrogate for more than three successful live births in her life. 
4. 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.
5. 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.
6. A surrogate mother shall not act as an oocyte donor for the couple or individual, as the case may be, seeking surrogacy.
7. 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. 
8. 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 women desiring the surrogate.

Surrogacy Bill 2016

The Cabinet, on August 24, cleared the draft surrogacy Bill with the aim of making the process and legality of surrogacy in India more transparent. Thus far, surrogacy – in which another woman carries and gives birth to a child for a couple who want to have a baby but are unable to do so – has been in the grey legal area in India. According to Former Minister for External Affairs Lt. Sushma Swaraj, the need for the Surrogacy (Regulation) Bill, 2016, came after India emerged as a surrogacy hub for couples and the increased number of incidents reported on unethical practices. The Bill prohibits commercial surrogacy, which includes stopping foreigners from commissioning surrogacy in India, while making it illegal for single parents, gay couples and those in live-in relationships to opt for surrogacy.

Conclusion

In our society infertility has historically been seen as a problem which merits treatment. Surrogate motherhood provides some couples with their only hope of raising a child genetically related to at least one of them. Surrogate motherhood describes an arrangement where a woman (the surrogate mother) agrees to become pregnant and bear a child for another person or persons (the commissioning parents) to whom the custody of the child will be transferred directly after birth. Surrogate mothers are not a new solution to the old problem of not being able to reproduce an offspring. The basic concept dates back at least 4000 years to Rachel, wife of Jacob, the father of the twelve tribes of Israel. Unable to bear children, Rachel sent her husband into the tent of her maid, Bilah. It was understood that the child born of that union belonged to Jacob and Rachel.60 Surrogacy has also been seen around a long time and dates back to biblical times. Some say it all started with Sarah and Abraham. Certain people say it started even before them, and that it is only recorded about Abraham because he was written about in the Bible. Ever since technology had been dramatically improved in past years, it benefits many ways to the human life. One way of these benefits is for those sterile married couples, the advancement of technologies will make their dream come true. One of the most controversial ways to have a baby is called surrogacy. Many people favoring pro-life are strongly against the surrogacy method because they think it is against moral issues and degrading for a women body. However there are those that oppose the pro-life idea.