It is an arrangement for carrying a pregnancy by a female for the biological parents or intended parents. It can be traced back to ancient times and has been practiced since then, but with the development in science and technology surrogacy has achieved new heights and outlook. The practice of surrogacy involves a few challenges and issues concerning medical and ethical. With a rise in Surrogacy practices, a need arises for strict legislation and laws that are to be strong and specific enough in order to prevent immoral trafficking and prevent exploitation of the intended parents and the surrogate mothers. Legal issues involving surrogacy are discussed further with respect to the countries of the USA and India.
Kinds of Surrogacy
The agreement or arrangement for surrogacy entitles a surrogate for the carrying of a pregnancy for the intended parents. There are two types of surrogacy
• Gestational surrogacy
• Traditional surrogacy.
In gestational surrogacy, the child is unreleased to the surrogate and is only carried by the surrogate, the pregnancy is a result of the transfer of the embryo that has been created by In Vitro Fertilisation (IVF). Whereas, in traditional surrogacy, the expected child is genetically related to the surrogate as the surrogate is impregnated naturally or artificially.
The roots of Surrogacy have originated from ancient Egypt, where it was practice if a woman who was not able to bear children these women undertook the practice of allowing another woman to bear the biological child of her husband in order to save their marriage this practice is traced as traditional surrogacy. This practice was not seen in the commonplace but was still considered as an act and not a criminal offense.
Issues in Surrogacy
Around surrogacy and the practice of assisted reproductive techniques, there are an amalgamated pool of ethical and legal issues. The primary reason for this, in the case of surrogacy, there is no specific outlined plan for the protection of the surrogate mother and the child, in case the contract is not honored by the intended or biological parents.
Secondly, most of the insurance companies do not cover the procedure for surrogacy in their plane and even if there are schemes available, the premiums are very high and the knowledge of this is very limited among the surrogate mothers.
One of the core issues that need to be issued is providing the surrogate mother with financial stability. Whereas in a few countries commercial surrogacy is allowed, such as India, Russia, Georgia, Ukraine, Thailand and a few states of the United States of America, and hence, there are legislations that provide as some relief to the surrogate.
It has been quite often seen that the intended parents are charged with an outrageous amount of money whereas the surrogate mother is given a fraction of this amount and it’s the middlemen who ultimately reap the monetary benefit. Hence, the legislations and guidelines in place for this are ineffectively enforced and it has been seen in more than a few cases that the surrogate mother is exploited and not provided with financial stability.
The next big issue concerning surrogacy is the matter of citizenship of the child born out of surrogacy. This has been reported mostly in the Indian Surrogacy market that the couples have had more than a few issues to establish the parentage of the child and have had a legal battle to establish the citizenship for their Indian surrogate child.
Mandatory testing in the United States of America also includes psychological and health criteria is practiced, whereas the Indian laws focus only on the aspect of the infectious disease of the matter and do not consider the impact of psychological health on the subsequent intended parents as well as the surrogate.
In India, it has been seen that many women from poor socio-economic strata are both attracted and lured to surrogacy with the promise of easy money and are exploited. These women more often than not are left high and dry by the middlemen and ART clinics that take up a bulk of the payment and offer no post-delivery care, as stipulated in the Indian guidelines.
Current Law Regulating Surrogacy in India
In the year 2005, the Indian Council for Medical Research drafted and enacted a set of guidelines that must be followed by the organizations or the individuals associated in the field of assisted reproductive techniques or surrogacy.
This has also laid down specific protocols to be followed while undergoing the process of surrogacy and has also made norms that enable only gestational surrogacy to be followed in a commercial sense in India. There have detailed provisions that term to accreditation and recognition of ART clinics in the country and to regulate and monitor these clinics state and district level forums were constituted.
Thereafter the Assisted Reproductive Techniques Bill was proposed but has not yet been enacted in the country. This bill has been based on the guidelines that were provided by the ICMR. However, in the ICMR guidelines, many issues have been addressed and appropriately moderated yet there is scope for further improvement still and airtight rules and guidelines.
Since, ICMR proposed the guidelines to regulate surrogacy more than a few bills have been proposed to regulate the practice of surrogacy such bills include Assisted Reproductive Techniques Bill, Surrogacy (Regulation) Bill, 2016 and recently Surrogacy (Regulation) Bill, 2019.
Surrogacy (Regulation) Bill, 2019
With the introduction to Surrogacy (Regulation) Bill, 2019 there have been more than a few criticisms against this bill.
Firstly, this Bill bans Commercial Surrogacy. In India commercial surrogacy was legalized in the year 2002 and since then India has emerged as a leader in International Surrogacy and has become a hub for Commercial Surrogacy. Commercial surrogacy has also been an important source of income for low-income women. In the 102nd Parliamentary Report, it was stated that there is a potential for exploitation in the surrogacy model but this exploitation is a direct result of regulatory oversight and lack of legal protection to the surrogate. This report further stated that surrogate mothers engaged in this activity out of economic necessity and surrogacy acted as a means of economically uplifting these women and their respective families. It also pointed out that other economic options for these women were equally and if not more exploitive in nature and were not as remunerative as Surrogacy.
Secondly, this Bill provides that only a couple were eligible for surrogacy and defines a couple as legally married Indian men and women. As a result bars, Single parents, gay and queer couples, unmarried couples.
Thirdly, this bill believes in maintaining the purity in the traditional family unit and implies that the surrogate has to be the close female relative to the couple.
Fourthly, specifies that a surrogate mother can only undergo the process once and has no limitations as on intended parents.
International Scenario – USA & UK
In the USA and India, after the birth of the child, the surrogate relinquishes all rights to the baby. However the scene is different in the UK, where the surrogate mother can claim the right to the baby up to 2 years after delivery and discretionary power is given to the court for this matter.
However as the USA follows a federal system of government, there is no unification of the laws centrally And hence discrepancy is found in the laws, on one hand, the state of California recognizes commercial surrogacy, on the other hand, the state of Washington considers commercial surrogacy unacceptable. While in California the traditional surrogacy is acceptable and the biological mother remains the legal mother in such a case, whereas in India traditional surrogacy is not legally acknowledged.
In the state of Utah, traditional surrogacy is prohibited and gestation surrogacy is a matter of rule that at least one intended parent must provide one gamete in the formation of the embryo. Whereas in the state of Virginia the intended parents are not automatically registered as the Legal parents whereas they are required to undergo a lengthy legal process to have them listed as the legal parents of the child this is established while taking the permission both prior and after surrogacy is done.
Whereas in the state of New York, all surrogacy agreements involving any king of compensation are considered, void and unenforceable, this is similar to the laws in the UK but contrary to the current law of India and similar to the proposed bill that prohibits commercial surrogacy.
Today India is acting as the largest hub for assisted reproductive technologies and has provided with an opportunity for many childless couples it fulfills their dreams and helped in completing their family. However, the government must make provisions to ensure that surrogates and intended parents are not exploited and looked after. Hence, avoiding any problems that may arise in the term of the surrogacy and the child born out of surrogacy.
The laws that are to be enacted must be made in such a manner that the beneficiaries of Surrogacy must be the child, surrogate and the intended parents instead of the middlemen.
It has been seen that the Indian Surrogacy procedure is dimes as compared to the amount charged by the developed countries. This has led to misuse of this procedure and hence, it is essential that the intended parents have their credentials verified before undergoing the Surrogacy procedure. Further, a favorable and strict law should be enacted after due discussion and arguments which protect and provides stability to all parties or organizations involved.
“The views of the authors are personal“
Frequently Asked Questions
What is Surrogacy?
Surrogacy is the arrangement for carrying a pregnancy by a female for the biological parents or intended parents.
What governs Surrogacy in India?
Currently there are no Acts that governs surrogacy laws in India. Whereas surrogacy is governed by IMCR, 2005 guidelines.
What are the main cause of concerns with the Surrogacy (Regulation) Bill, 2019?
The proposed bill discriminates between who can be a surrogate and the intended parents are discriminated on the basis of marital status, gender and many more. Further, India recently has became a hub for commercial surrogacy the proposed Act suspends Commercial Surrogacy in turn snatching livelihood of several poor women.