Shambhavi Goswami & Arvind Sharma, University School of Law & Legal Studies, GGS Indraprastha University, New Delhi.
Abstract
The human body is a marvel of engineering. The future of childbirth in the form of test tube infants, as well as surrogate motherhood enabled by new reproductive and cloning technology, will open up hitherto unimagined sexual options. Surrogacy is an assisted reproduction approach in which a woman agrees to become pregnant for the goal of gestating and giving birth to a child who will be raised by others. Surrogacy is lawful in some jurisdictions, and the intended parents may be acknowledged as legal parents from the moment they are born. In India, commercial surrogacy, sometimes known as "Womb for Rent," is a booming industry. Reproductive tourism is a relatively new phenomenon in our constantly globalising world. The surrogacy industry exploits poor women in countries like India, which already has an extremely high maternal mortality rate. In the context of surrogacy, this study discusses paternity concerns and women's right to health. In order to safeguard and guide couples considering surrogacy, the government should seriously consider enacting a law to regulate surrogacy in India. Patients would always be misled, and surrogates will be exploited if there is no foolproof legal structure in place.
Keywords: Maternal mortality, Paternity issues, Surrogacy, Women′s right to health
I. Introduction
The human body is a remarkable mechanism that is yet a mystery to understand. The future of childbirth in the form of test tube babies, as well as surrogate motherhood enabled by improved technologies, have opened up hitherto unimagined sexual possibilities. Because any reproductive device that replaces the marital act is a breach of the dignity of reproduction, when human procreation is separated from sexual relations, spouses might easily become sex objects. It becomes difficult to see each other's dignity, especially in the unborn child[1]. Science and technology, on the other hand, have made significant contributions to society. However, it is not ethically correct; rather, it is unethical.
Surrogacy is a form of assisted reproduction in which a woman agrees to become pregnant in exchange for the birth of a child to be raised by others. She may be the child's biological mother (the more typical kind of surrogacy) or she could be implanted with an embryo from a different family. Having another woman bear a child for a couple to nurture, usually with the genetic father referred to as the male half of the marriage in antiquity. Surrogacy may be the sole choice for parents who want a kid that is biologically related[2] to them in some instances.
The word "surrogate" comes from the Latin word "subrogare," which means "assigned to act in place of." Altruistic surrogacy is when a surrogate mother offers to carry a child for the intending parents without receiving any financial compensation. To put it another way, this is essentially a free surrogacy. Commercial surrogacy, on the other hand, is a type of surrogacy in which the intended parents pay a fee in exchange for a willing surrogate. People, governments, and religious groups have questioned the ethics of incorporating money in a child's birth[3], making commercial surrogacy a contentious technique of conception. Surrogate pregnancy can occur for a variety of reasons.
For example, intended parents may arrange for a surrogate pregnancy if a woman who wants to be a parent is infertile or unable to carry a pregnancy to term, such as a woman who has had a hysterectomy, has a uterine malformation, has a history of recurrent abortions, or has any other medical condition that makes her pregnancy dangerous to her own health. A woman who wants to have a family may be fertile and healthy, but she doesn't want to get pregnant. The agencies that arrange surrogacy for the intended parents frequently assist them in navigating the complicated medical and legal aspects of the process[4].
II. Surrogacy: International Scenario
Laws differ tremendously from one country to the next. Commercial surrogacy agreements are illegal in England, according to the Surrogacy Arrangement Act of 1985. Even though the kid and the surrogate mother are genetically unrelated, the surrogate mother retains legal custody of the child. Unless a parental or adoption order is issued, the surrogate mother is the child's legal mother.[5]
A. Status Of Surrogacy In USA
Surrogacy and associated legal difficulties in the United States are governed by state law, which varies from state to state. Surrogacy and surrogacy contracts are made easier in certain states, while others simply refuse to enforce them, and commercial surrogacy is penalised in others[6]. Only altruistic surrogacy is permitted in Canada under the Assisted Human Reproduction Act; surrogate mothers may be reimbursed for approved expenditures, but any other consideration or price is prohibited.
B. Status Of Surrogacy In Australia
Altruistic surrogacy is permitted in all Australian states (excluding Tasmania, which prohibits all surrogacy under the Surrogacy Contracts Act 1993). Arranging commercial surrogacy, on the other hand, is illegal in every state[7].
C. Status Of Surrogacy In South Africa
The South African Children's Act of 2005[8] allowed the "commissioning parents" and surrogate to have their surrogacy agreement approved by the High Court prior to fertilisation. This ensures that the commissioning parents are acknowledged as legal parents from the start of the process, reducing confusion[9].
D. Status Of Surrogacy In Asian Countries
In Japan, the Science Council of Japan suggested a ban on surrogacy, with doctors, agents, and customers facing penalties if they engage in commercial surrogacy. Religious authorities in Saudi Arabia forbid the use of surrogate mothers.[10]
Surrogacy was outlawed in China by the Ministry of Health in 2001. Despite this ban, the illegal surrogacy "black market"[11] is nevertheless growing in China, according to reports. Political parties, fearful of such a circumstance, have proposed stringent restrictions[12].
III. Legal Aspects Of Surrogacy In Europe
Surrogacy is not strictly regulated in Sweden. Adopting a child from a surrogate mother is the legal method that most closely resembles it. Surrogacy arrangements[13] are prohibited in Swedish fertility clinics.
Ukraine: Surrogacy in Ukraine is entirely legal. In Ukraine, gestational surrogacy is only legal for married couples[14].
Commercial gestational surrogacy is legal and available in Russia for willing individuals. Surrogacy must have a medical justification. Foreigners have the same rights as Russian citizens[15] when it comes to assisted reproduction.
Bulgaria: Surrogacy was previously banned in Bulgaria, but the government chose to legalise it because it is still done illegally. Bulgaria, on the other hand, refers to it as a "substitute mother[16]" rather than a surrogate.
Georgia is a state where surrogacy is legal. Although it is legal in Europe, the surrogate mother has no parental rights over the child[17].
While certain countries, such as Poland and Romania, do not have specified surrogacy legislation, the surrogacy process is nevertheless allowed in those countries. As may be seen, European surrogacy regulations are diverse, with some being ambiguous or non-existent[18] in some nations.
IV. Social And Psychological Context Of Surrogacy
Surrogacy's commercialization has resulted in a number of social conflicts. Given the significant vulnerability of one-third of Indian women due to poverty, exclusion from and marginalisation in labour and employment markets, patriarchal societal and family systems, and poor educational levels, financial gain through surrogacy has become a major motivator. Because most surrogate mothers are from lower socioeconomic backgrounds and their primary motivation is financial, they are easily abused by brokers working for commissioning parents. Secrecy and anonymity foster a hostile climate that negatively impacts human relationships both within and outside of families.[19]
Surrogacy carries a social stigma in society since it is associated with prostitution, and as a result, it is suggested that it should be prohibited for moral reasons. Surrogate moms are kept apart from their family and only allowed to see them on weekends, which violates their human rights. As a result, there are a slew of ethical, social, legal, and psychological difficulties surrounding surrogacy that necessitate the formulation and implementation of legislation.[20]
V. Surrogacy and Women's Right to Health: Indian Scenario
Surrogacy is not a new notion in India. In India, commercial surrogacy, sometimes known as "Womb for Rent," is a booming industry. In India, an English-speaking environment and lower-cost services attract eager customers. Surrogacy's future projections range from opportunity to exploitation, from rural women in India being lifted out of poverty to a futuristic nightmare of a baby farm in a developed country.[21]
Surrogacy in India is difficult to distinguish between women exercising their own personal rights and those who are compelled to become surrogate mothers by their mother-in-law or husband's desire to meet material and financial demands.[22]
Surrogacy opponents say that the procedure is analogous to prostitution, and that because of this similarity, it should be prohibited on moral grounds. Surrogacy contracts are "dehumanising and alienating" because they undermine the surrogate's perspective on the pregnancy's legitimacy. Surrogate mother attempts to avoid forming a personal attachment with the child in her womb and sees the pregnancy as a method to make money. Payment for bodily services dehumanises the surrogate mother and exploits her reproductive organs and capacity for the wealthy's selfish gain.[23]
Surrogacy outsourcing is, in fact, a kind of exploitation in India. There is currently no regulation protecting the surrogate mother in the event of a birth difficulty, coerced abortion, or other circumstances. Commercial surrogacy has practically been legal in India since 2002, and the country has become a leader in the field. This is why critics claim that the surrogacy industry exploits poor women in countries like India, which already has a high maternal death rate. Surrogacy in India is already worth $445 million a year, according to estimates, which could be conservative.[24]
Surrogate motherhood, as a situation in which a woman does not claim ownership of the child delivered, has created moral, ethical, social, and legal concerns for both the woman and the "commissioned kid." "If surrogacy becomes a route via which women in richer nations chose poorer women in our country to bear their babies, then it is economic exploitation, a type of biological colonialism," legal experts say.[25]
Surrogate motherhood is being investigated by India's Ministry of Women and Child Development in order to draft complete legislation. The Indian Council of Medical Research (ICMR) has proposed strong penalties for violators and a rigorous regulation on Assisted Reproductive Techniques in a draft legislation on surrogacy (ART). If the first two efforts fail, the draught rule limits a mother's ability to transfer embryos to three times for the same couple, and it also states that no woman shall function as a surrogate for more than three live births in her lifetime. In actuality, the ICMR and the Ministry of Health and Family Welfare issued just these guidelines in 2005.
"A family, a known person, or a person unknown to the couple may act as a surrogate mother for the couple," according to ICMR rules.
If a relative is to be used as a surrogate, the relative must be of the same generation as the lady seeking the surrogate." Experts believe that surrogacy pushes childless couples into commercial surrogacy unnecessarily. The standards say in section 3.10.5 that "a surrogate should be less than 45 years" as the highest age limit, but do not specify the age limit for being a surrogate. So, an 18-year-old or even a younger person can become a surrogate mother? Before accepting a woman as a potential surrogate for a specific couple, the ART Clinic must check (and document) that she meets all of the tested criteria for a successful full-term pregnancy.[26]
VI. Public Health Relevance of Surrogacy
Surrogacy and assisted reproductive technology (ART) are two options for infertility treatment. The current demand for these services distorts priorities in the organisation of health-care services, as pressure mounts to establish hi-tech reproductive techniques within open markets and public sector service infrastructure while ignoring the basic facilities that aid in the prevention of infertility. The impoverished must either sell their assets to gain access to the facilities or take advantage of the opportunity to earn money by selling their reproductive potential - the women who are forced into this process face the greatest health hazards. Fertility clinics have proliferated in our country during the last ten years or so.
This has sparked a surge in medical tourism, with surrogacy occupying a prominent position among the attractions, as couples from all over the world seek easy access to surrogate mothers. According to private suppliers, these Indian institutions offer first-world conveniences and excellence for third-world pricing. This is frequently accomplished by decreasing the number of necessary testing and safety procedures in women to the bare minimum. The high rate of prevalence and poor execution of the ART Regulatory Guidelines-2005 has prompted various concerns about surrogacy's acceptability in the current setting from the standpoint of public health.[27]
The majority of challenges and problems stem from completely unregulated private ART clinics—with different costs, standards, and procedures—that prioritise profits over the epidemiological requirements of India's majority. The government is thus ignoring the need to avoid secondary infertility as a result of poor obstetric care, reproductive tract infections, and low nutritional status of women, as well as the provision of basic services for infertility treatment. To promote medical tourism and surrogacy, the private sector has complete leeway to build ART clinics.
This can cause bodily injury to surrogates and result in a variety of issues as a result of practises that aren't publicly revealed, such as low birth weights and deformed kids. Surrogacy contracts lack transparency, and the likelihood of legal issues are significant. Cross-border surrogacy causes issues with nationality, motherhood, and child rights.
VII. Surrogacy: Issues and Perspective
Establishing paternity may be straightforward with a single DNA test, but the matter is far from straightforward for the courts. What happens if a non-custodial father has been the child's "father" for 15 years only to discover he is not the biological father? Is he entitled to a refund of his child support payments? Can a surrogate mother go after the husband and wife clients for monetary support for the resulting kid if she breaks her contract? These are difficult legal issues for judges and legislators to resolve.
Only the birth mother is recognised in the Indian system. As far as the Indian legal system is concerned, there is no idea of DNA testing for confirming paternity, which means that the name on the child's birth certificate must be that of the birth mother and her husband. In 2008, the Supreme Court of India ruled in Manji's case (Japanese Baby) that commercial surrogacy is legal in India, reinforcing international confidence in India as a surrogacy destination.[28]
The Indian Law Commission has released its 228th report, titled "Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Surrogacy Parties." The following are the main points made by the law commission: Surrogacy arrangements will continue to be governed by contracts between partners, but they should not be used for financial gain. A surrogacy agreement should include provisions for financial assistance for the surrogate child in the event that the commissioning couple or individual dies before the kid is delivered. A surrogacy contract must include life insurance coverage for the surrogate mother. Surrogate children should be recognised as legitimate children by law. Only the commissioning parent(s)' names should appear on the surrogate child's birth certificate. The right to privacy of both the donor and the surrogate mother should be respected. Surrogacy that is based on a woman's gender should be forbidden. Only the Medical Termination of Pregnancy Act of 1971 should apply to abortion cases.[29]
According to Kimbrell (1988), most women who become surrogates do so to supplement their income. Surrogate mothers are frequently unaware of their legal rights, and because of their financial circumstances, they cannot afford legal representation.[30]
Surrogates, according to Horsburgh (1993), are physically exploited once they sign contracts committing to give birth to infants for customers. Worse, if the pregnancy is aborted, the surrogates are frequently paid only a fraction of the original price. The contracts can also place liability on the mother for risks including pregnancy-induced diseases, death and post-partum complications.[31]
According to Foster (1987), many surrogate moms experience mental distress after having to relinquish the kid. Surrogate moms, on the other hand, do not appear to have psychological problems as a result of surrogacy arrangements, according to a research by Jadva et al. (2003). Although it is accepted that some women had emotional difficulties in handing over their babies or as a result of the emotions of those around them, these sentiments seemed to fade in the weeks following the birth.[32]
VIII. Conclusion and Suggestions
Surrogacy is purely a contractual agreement between the parties in India, so care must be taken when drafting the agreement to ensure that it does not violate any laws, such as points to consider when drafting the agreement, such as why the intended parents chose surrogacy, the surrogate's specifics, the type of surrogacy, mentioning paternity in the agreement, and the creation of a registry for biological parents.
In 2008, the Indian government prepared legislation, which was finally enacted in 2010 as an ART regulation draft bill. The law is still in the works and has yet to be introduced in parliament. The proposed law should be thoroughly discussed and debated from a legal, social, and medical standpoint.
We argue that the Indian government should seriously explore implementing legislation to regulate surrogacy in order to safeguard and guide couples considering this choice. Couples would always be misled and surrogates will be exploited if there is no fool proof legal structure in place.
[1] Van Zyl L, van Niekerk A. Interpretations, perspectives and intentions in surrogate motherhood. J Med Ethics 2000;26:404-9 Available on http://www.jme.bmj.com.laneproxy.stanford.edu/cgi/content/full/26/5/404[Accessed on 19th October 2021].
[2]Committee on Ethics. ACOG committee opinion number 397, February 2008: Surrogate motherhood. Obstet Gynecol 2008;111:465-70.
[3] Ibid.
[4] Serratelli A. Surrogate motherhood contracts: Should the British or Canadian model fill the U.S. legislative vacuum? George Washington J International Law Econ 1993;26:633-74.
[5] Id at 1.
[6] Lawrence DE. Surrogacy in California: Genetic and Gestational Right: Golden Gate University Law Review. Vol. 21. 1991. Art. Available from: http://www.digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1522&context=ggulrev. [Last accessed on 20th October 2021].
[7] Legislative Council Standing Committee on Legislation, Parliament of Western Australia, Report on The Surrogacy Bill 2007 (2008) ('Western Australian Report') 5 [4.12].
[8] Children's Act, 2005 (Act No. 38 of 2005) Chapter 19: Surrogate Motherhood 297. Effect of surrogate motherhood agreement on status of child in south Africa.
[9] Kriari-Catranis I. Human assisted procreation and human rights - The Greek response to the felt necessities of the time. Eur J Health Law 2003;10:271-80.
[10] Aramesh K. Iran's experience with surrogate motherhood: An Islamic view and ethical concerns. J Med Ethics 2009;35:320-2.
[11] Wadekar N. Wombs for Rent: A Bioethical Analysis of Commercial Surrogacy in India. Available from: http://www.tuftscopejournal.org/issues/S11/articles/show/wombs_for_rent. [Last accessed on 20th October 2021].
[12] Surrogate Motherhood in India. Available from http://www.stanford.edu/group/womenscourage/Surrogacy/moralethical.html. [Last accessed on 20th October 2021].
[13] Pennings G. Legal harmonisation and reproductive tourism in Europe. Hum Reprod 2004;19:2689-94.
[14] Ukraine. On Amendments to Legal Acts of Ukraine Concerning Limitations on Use of Assisted Reproduction Technologies. Draft No. 8282. http://gska2.rada.gov.ua:7777/pls/zweb_n/webproc4_1?id=&pf3511 = 39973. [Registered on 2011 Mar 23].
[15] Svitnev K. Legal regulation of assisted reproduction treatment in Russia. Reprod Biomed Online 2010;20:892-4.
[16] Pennings G. Reply: reproductive exile versus reproductive tourism. Hum Reprod 2005;20:3571-2.
[17] Göran H. "Surrogatmoderskap: Varför- och varför inte?" (in Swedish). Läkartidningen 2010;108:68-9.
[18] Kevin T. The ethics of surrogacy contracts and nebraska's surrogacy law. Vol. 41. Creighton Law Review; 2008. p. 185-206.
[19] van den Akker OB. Psychological trait and state characteristics, social support and attitudes to the surrogate pregnancy and baby. Hum Reprod 2007;22:2287-95.
[20] Jadva V, Murray C, Lycett E, MacCallum F, Golombok S. Surrogacy: The experiences of surrogate mothers. Hum Reprod 2003;18:2196-204.
[21] Ibid.
[22] Kimbrell. The Human Body Shop: The Engineering and Marketing of Life. New York: Harper San Francisco; 1993. p. 101.
[23] Honjo, Arai S, Kaneko H, Ujiie T. Antenatal Depression and Maternal-Foetal Attachment. Psychopathology 2003;36:304-11.
[24] Edelmann R. Surrogacy: the psychological issues. J Reprod Inf Psychol 2004;22:123-36.
[25] Few Basics from the ICMR Guidelines. Available from: http://www.blog.indiansurrogacylaw.com/2009/01/few-basics-from-the-icmr-guidelines. [Last accessed on 2021 October 21st].
[26] Niekerk AV, Zyl LV. The ethics of surrogacy: women's reproductive labour. J Med Ethics 1995;21:345-9
[27] National Guidelines for Accreditation, supervision and regulation of ART clinics in India. Available from: http://www.icmr.nic.in/art/art_clinics.htm. [Last accessed on 2021 October 21st].
[28] Law commission of India. Report 228. 2009. Available from http://surrogacylawsindia.com/admin/userfiles/file/report228.pdf. [Last accessed on 2021 October 21st].
[29] Available from: http://www.nt.gov.au/justice/policycoord/documents/polcoord_surrogacy_consultationpaper.pdf.pdf#search=%22Surrogacy%22. [Last Accessed on 2021 October 21st].
[30] Surrogate Motherhood-Ethical or Commercial, Centre for Social Research (CSR) 2, Nelson Mandela Marg, Vasant Kunj- 110070. Available from: http://www.womenleadership.in/Csr/SurrogacyReport.pdf. [Last accessed on 2021 October 21st]
[31] Ibid.
[32] Singh KK. Human genome and human rights: An overview. J Indian Law Inst 2008;50:67-80.
