Implication of Rights for Surrogacy Arrangements

“Surrogate” means substitute. A surrogate mother is hence a substitute mother for a genetic-biological mother. The future of surrogacy and test tube babies is an emerging trend in the world. The affect could be very well seen in India as well. Surrogacy is a method of assisted reproduction whereby the intended parents enter into a contract with a surrogate mother who will carry their child and surrender the child back to the parents with the intention that the parents will raise the child. Advancements in the reproductive technologies such as donor insemination and embryo transfer methods have made ‘surrogacy’ as a desirable option. In earlier times, the method of surrogacy was only confined to the close relatives within the family but due to financial arrangements, these methods have gone to a global scale. The surrogate mother makes huge profits with these types of dealings. There is a saying that goes in the surrogacy field, “the barren gets a baby, the broke gets a bonus” and it definitely sums up what surrogacy is all about.

According to the Artificial Reproductive Technique (ART),

“’Surrogacy’ is an arrangement in which a women agrees to 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 surrogates”. ”A ‘surrogate mother’ is a women who agrees to have an embryo generated from the sperm of a man who is not her husband and the oocyte for another women is implanted in her to carry the pregnancy to full term and deliver the child to its biological parents(s).”

Surrogacy arrangements can be generally categorized into 2:

Altruistic surrogacy or Non Commercial surrogacy that does not involve the surrogate mother being paid a fee or reward after the child is born. Money and rewards do not play a part in this type of an arrangement although the surrogate mother can be reimbursed with all the legitimate expenses and she can also make use of any legislative help regarding the surrogacy.

Commercial surrogacy on the other hand is the second type of arrangement whereby the surrogate mother receives a fee or reward after the child is born. The surrogate mother apart from this can also be reimbursed with all the legitimate expenses and she can make use of any legislative help regarding the surrogacy.

However the trend that has been seen is that the surrogate mother generally follows a commercial arrangement. Commercial surrogacy arrangements have made a child born out of it as a commodity where the question of profit making is almost inevitable to both the parties.

India has been seen as a hot-spot destination for surrogacy arrangements among the foreigners. Cheap medical facilities along with the technological know-how, poor socio-economic conditions and lack of surrogacy regulating laws in India have all led India to become a popular destination for surrogacy. Also, the surrogate mothers charge comparatively less amount of money than in other countries making India a “Womb for rent” hot spot. In India, there is no specific act that deals with surrogacy laws to protect the rights and interest of the surrogate mother, the child or the intending parents, however Assistant Reproductive Technology (ART) Act 2010 deals with certain guidelines in that regards. Apart from this, the Indian Government has taken certain steps like the introduction and implementation of National Guidelines for Accreditation, Supervision and Regulation of Assisted Reproductive Technology (ART) clinics in 2006 and guidelines have been issued by the Indian Council for Medical Research (ICMR) under the ministry of health and family welfare, Govt. of India.

Currently the 2 major surrogacy methods being followed in India are traditional and gestational surrogacy. Traditional surrogacy is done through artificial insemination(surrogate using her own egg and another man’s sperm). Gestational surrogacy is done via In Vitro Fertilization (IVF), where fertilized eggs from another woman are implanted into surrogate’s uterus.

The rights of a surrogate mother should be fulfilled legally and commercially. It has been found out that after a surrogate arrangement has been entered into by the parties, if the intended parent(s) decide to abort during the pregnancy then the surrogate mother just receives a small fraction of the original price which is far too less for the potential risks she may go through like infections, pregnancy induced diseases, medical complications and also death. Some also experience psychological problems due to extreme emotional attachments with the baby while it is in the womb. A surrogate mother is the most essential character in a surrogate arrangement. Her rights have to be tried and protected in every way possible. A few people in India have expressed their orthodox mindset regarding surrogacy. They feel that it is not a decent way to earn money and is nothing less than prostitution. They feel adoption is the best method if the parents are unable to conceive. Instances have been reported where after the child is born from a surrogate arrangement, the parents have refused to take the child if the child is not of the desired sex as wanted by the parents. Observations have also revealed that certain surrogate mothers were attached with the child as though it is their own biological child. Problems like these have to be addressed in the most diligent manner so that no party is in a loss while making arrangements.

Different countries have various viewpoints about surrogacy. Some consider it legal while some illegal and unethical. Also laws differ from country to country regarding surrogacy. In the United States of America, surrogacy is protected in the Constitution however different states in the USA have different takes about surrogacy.

In Canada, the ART act only permits altruistic surrogacy to be legal and the mothers are only reimbursed for approved expenses.

In Australia, commercial surrogacy is illegal.

The ministry of China has banned surrogacy in 2001.

In Russia, commercial surrogacy is legal and the rights available for the foreigners are the same as that of the citizens with regard to surrogacy.

Japan has banned commercial surrogacy and in Saudi Arabia, religious authorities do not allow the use of surrogate mothers. 

A lot of planning has to go into while making India a global medical destination so that issues such as surrogacy can be done in a proper and legal manner. Proper legislations have to be made by having productive debates in parliaments regarding these issues. Recent trends show India as a popular global destination for surrogacy and with the help of proper legislations, methods and procedures, the benefits of surrogacy can be reaped by the parties as well as the government by tapping the economies of it.[1]

REFERENCEES

Dr. Manasi Mishra, Surrogate Motherhood-Ethical or Commercial, Centre for Social Research(CSR), (18th July 2013), http://www.womenleadership.in/Csr/SurrogacyReport.pdf

Paul Boers, Surrogacy Arrangements: The patchwork legal landscape, Nicholes Family Lawyer, http://www.nicholeslaw.com.au/articles/surrogacy-patchwork.pdf

Anu, Pawan Kumar, Deep Inder, Nandini Sharma, Surrogacy and Women’s rights to health in India: Issues and Perspectives, Indian Journal of Public Health, pages 65-70, volume 57, issue 2, 2013

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