Study of legal mechanism of practice of surrogacy
Nature has bestowed the beautiful capacity to procreate a life within women and every woman cherishes the experience of motherhood. The desire for motherhood leads them to search for alternative solutions, and surrogacy presents itself as the most viable alternative. Advances in assisted reproductive techniques such as donor insemination and, embryo transfer methods, have revolutionized the reproductive environment, resulting in surrogacy, as the most desirable option. The system of surrogacy has given hope to many infertile couples, who long to have a child of their own. Taking advantage of the advanced medical facilities, they seek alternative solutions like Artificial Reproductive Technology (ART), In-Vitro Fertilization (IVF) and, Intra-Uterine Injections (IUI), in the hope of having a child of their own.
The very word surrogate means substitute. That means a surrogate mother is the substitute for the genetic-biological mother. In common language, a surrogate mother is the person who is hired to bear a child, which she hands over to her employer at birth.
According to the Artificial Reproductive Technique (ART) Guidelines,
Surrogacy is 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(s)”.
In the past, surrogacy arrangements were generally confined to kith and kin of close relatives, family, or friends, usually as an altruistic deed. But, with the introduction of financial arrangements in the process, surrogacy has extended its network beyond family, community, state, and even across the country. The concept of surrogacy has turned a normal biological function of a woman’s body into a commercial contract. The commercialization of surrogacy has raised fears of a black market and of baby selling and breeding farms; turning impoverished women into baby producers and the possibility of selective breeding at a price. Surrogacy degrades a pregnancy to a service and a baby to a product. Experience shows that as with any other commercial dealing, the customer lays down his/ her conditions before purchasing the goods. Slowly but steadily India is emerging as a popular destination for surrogacy arrangements for many rich foreigners.
Women from lower socio-economic backgrounds readily agree to become a surrogate mother in India in return for payment, as hiring a surrogate in the western countries is not only difficult, but, the treatment is also immensely costly. The legal prohibition of surrogacy in some countries also leads people to come to India. The issue of legal acceptance/non-acceptance of surrogacy arrangements in different countries of the world will be discussed at length in the next chapter of this report. Women, who undertake these assignments in India, usually come from lower class to lower middle class backgrounds, are married, and are often in need of money. The amount of money given to a surrogate mother in India may appear very miniscule from any reasonable perspective, however, the amount may serve as the economic lifeblood for the families, and will be spent on the needs of the family (a house, education of the children, medical treatment). These are basic needs and may seem trivial from a notably rich westerners’ perspective, but they become mega needs in a country like India, which lack social safety nets, and where the governance structure is attuned only to the needs of the rich and powerful sectors of the society.
The practice of renting a womb and getting a child is similar to outsourcing pregnancy. The volume of this trade is estimated to be around $ 500 million and the numbers of cases of surrogacy are increasing rapidly. The exact extent of this practice in India is not known, but inquiries have revealed that this practice has doubled in the last few years. There is a growing demand for fair-skinned, educated young women to become surrogate mothers for foreign couples. Often, couples have to wait for as long as eight months to a year for their turn. Normally women from small towns are selected for outsourcing pregnancy.
DEFINITION OF SURROGACY
According to Bernard Dickens, Professor of Law1, an initial difficulty in addressing surrogate motherhood arrangements is that they do not conform to predictable patterns of behavior, and no legal language exists to describe the human and social relationships that they create.
The New South Wales Law Reform Commission defined surrogacy as …an arrangement whereby a woman agrees to become pregnant and to bear a child for another person or persons to whom she will transfer custody at or shortly after birth.
The term surrogate could be considered a misnomer. In Australian jurisdictions, a woman giving birth to a child is deemed or presumed to be the mother. The Macquarie Dictionary defines surrogate as a substitute, so it is argued that a woman could not be the surrogate mother of the child she has borne. It could be considered that the woman who takes over the role of child rearing is actually the surrogate mother.
Surrogacy Boom in India
- India has become a booming centre of a fertility market, partly surreptitiously, and today there are an estimated 200,000 clinics across the country offering artificial insemination, IVF and surrogacy. They call it Assisted Reproductive Technology (ART). The entire process needs regulation through legislation.
- There is at present no law governing surrogacy in India, eventually the activity including renting a womb (commercial surrogacy) is considered legitimate.
- In the absence of any law the Indian Council of Medical Research (ICMR) in 2005 issued guidelines for accreditation, supervision and regulation of ART clinics in India. But the need for legislation became pressing with ICMR guidelines being often violated and reportedly rampant exploitation of surrogate mothers and even cases of extortion.
- University of Toronto
- Legitimacy of the child:
A child is legitimate in common law if the parents are married at the time of conception or at the time of birth (Indian law). The question whether the legal status of the child by Artificial Insemination Donor (AID) with consent of the husband is similar to that of an adopted child was raised in Strad V Strad .In this case the husband had been given visitation rights in a divorce petition, but the wife later tried to have this right rescinded claiming that the child was illegitimate. She accepted though, that she had undergone AID. The court held that the child was legitimate and the husband could retain his rights. The court also held that the child had been “potentially adopted by the husband”.
In Gursky v Gursky2. the Supreme Court of New York ruled that a child born through AID consented in writing by the husband was legitimate. But there were some conflicting decision also, e.g. People v Sorenson etc. Thus the United States passed the Uniform Parentage Act to solve the issue. Thus now the children born With AID are considered legitimate.
- Liability of the Husband:
Well, another tricky problem is determining the consequences of the refusal to consent by the husband. A court might decide that the husband is to be the deemed father even though he has not consented. But it would be seen rather unfair to saddle the husband with the paternity where his wife has been inseminated against his wishes. On the other hand it would unfair to the child if the husband sought to deny paternity when for many years he had brought up the child as his own. In such a case he might face the doctrine of estoppels. In India the legitimacy of a child born during the subsistence of a valid marriage is preserved. Section 112 of the Indian evidence Act, 1872 provides: “the fact that any person was born during the continuance of valid marriage
or within 280 days after its dissolution the mother reaming unmarried is a conclusive proof that he is the legitimate son of that man unless he shows that the parties to marriage had no accesses to each other”.
In India, Indian statues have conferred legitimacy on the offspring of void and voidable marriages but whether these provisions can be extended to children born with AID without consent of husband is a question to be answered. In India, neither there is statutory law nor much of case law to determine the legitimacy and parentage of the AID child. Legitimacy can be granted to children born with the help of AID only legislation. It can be of two types:
- To make all children born by way of AID to be legitimate child of the legally wedded spouses during the subsistence of marriage.
- To grant legitimacy only where there is consent of the husband.
III. Consummation of Marriage:
A marriage is said to be consummated when the parties have sexual intercourse. So, what is the status of the child born under AID? Well this is a question, which posed a great deal of challenge in front of the judges because with the help of technology the insemination is done in such a way that there is no physical intercourse. Thus technically and in reality too children can be born from husband and wife who never had intercourse. Thus though they have a child (through surrogacy) which is genetically theirs but the marriage is not consummated.. In India, this question will be answered according to the personal laws. Under the Parsi Marriage & Divorce Act, 1936, non-consummation within one year of marriage owing to willful refusal of the respondent is a ground for divorce. On the same ground, one can sue for a decree of annulment of marriage under the Special Marriage Act, 1954. Under the Hindu Marriage Act, 1955, only the wife can seek annulment of marriage on non- consummation of marriage due to the impotency of the husband. But it is more complex in the Muslim Law as therein, consummation is presumed in the presence of a valid retirement. Thus, for observation of iddat, confirmation of dower, right to maintenance during iddat, establishment of paternity, valid retirement has the same effect as the consummation of marriage.
But in case of a triple divorced couple to remarry, prohibition to marry daughter of wife, option of puberty to lapse, actual consequence which obtain in Muslim law after presumed and actual consummation of the marriage the status of practice of AID remains speculative. Thus, personal laws are so varied and complex that its better if law grants AID status of constructive consummation.
INDIA & SURROGACY
LEGAL ASPECT OF SURROGACY IN INDIA
Is Surrogacy Legal In India?
Commercial surrogacy has been legal in India since 2002. India is emerging as a leader in international surrogacy. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate’s fee, and delivery of the baby at a hospital. Surrogacy in India is much simpler and cost effective than anywhere else in the world. There is an increasing amount of Intended Parents who choose India as their surrogacy destination. The main reason for this increase is the less costly surrogacy and better flexible laws. In2008, the Supreme Court of India has held that commercial surrogacy is permitted in India. That has again increased the international confidence in going in for surrogacy in India. Intended Parents from all over the world come down to India with great dreams and hopes for attaining the joy of parenthood by opting surrogacy. Intended parents contact hospitals over the internet mainly and to come across hospitals/agencies which do not provide complete information about the surrogacy procedures, time factors and more importantly the cost factor.
There is no law governing surrogacy in India. There is only 126-page document regulating the technologies used.
To address such issues and to regulate surrogacy arrangements, the Government of India has taken certain steps including 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 of Medical Research (ICMR) under the Ministry of Health and Family Welfare, Government of India.
However, till now there is no legal provision dealing directly with surrogacy laws to protect the rights and interests of the surrogate mother, the child, or the commissioning parents. Nonetheless, Assistant Reproductive Technique (ART) Regulation Bill, 20106 lays down few guidelines which are discussed as follows:
Rights and duties in relation to surrogacy:
(1) 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.
(2) All expenses, including those related to insurance if available, of the surrogate related to a pregnancy achieved in furtherance of assisted reproductive technology shall, during the period of pregnancy and after delivery as per medical advice, and till the child is ready to be delivered as per medical advice, to the biological parent or parents, shall be borne by the couple or individual seeking surrogacy.
(3) Notwithstanding anything contained in sub-section (2) of this section and subject to the surrogacy agreement, the surrogate mother may also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate.
(4) A surrogate mother shall relinquish all parental rights over the child.
(5) 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, provided that no woman shall act as a surrogate for more than five successful live births in her life, including her own children.
(6) 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 received a blood transfusion or a blood product in the last six months.
(7) Individuals or couples may obtain the service of a surrogate through an ART bank, which may advertise to seek surrogacy provided that no such advertisement shall contain any details relating to the caste, ethnic identity or descent of any of the parties involved in such surrogacy. No assisted reproductive technology clinic shall advertise to seek surrogacy for its clients.
(8) 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 mentioned in clause 17 below.
(9) 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 Act.
(10) Subject to the provisions of 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.
(11) A surrogate mother shall not act as an oocyte donor for the couple or individual, as the case may be, seeking surrogacy.
(12) A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple/ individual. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate.
Determination of status of the child:
(1) A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through sexual intercourse.
(2) A child born to an unmarried couple through the use of assisted reproductive technology, with the consent of both the parties, shall be the legitimate child of both parties.
(3) In the case of a single woman the child will be the legitimate child of the woman, and in the case of a single man the child will be the legitimate child of the man.
(4) In case a married or unmarried couple separates or gets divorced, as the case may be, after both parties consented to the assisted reproductive technology treatment but before the child is born, the child shall be the legitimate child of the couple.
(5) A child born to a woman artificially inseminated with the stored sperm of her dead husband shall be considered as the legitimate child of the couple.
(6) If a foreigner or a foreign couple seeks sperm or egg donation, or surrogacy, in India, and a child is born as a consequence, the child, even though born in India, shall not be an Indian citizen.3
Author: Ananya Mishra, BA.LLB., Semester VII, Amity University, Lucknow.
Disclaimer: This article has been published in “Legal Desire International Quarterly Journal (ISSN: 2347-3525), page no. 290. No part of this publication may be reproduced or transmitted in any form by means, electronic, mechanical, recording or otherwise, without prior permission from Legal Desire. All Rights Reserved.
Latest posts by Anuj Kumar (see all)
- Analysis: Instances which shows 4 Judges have valid points that needs ‘Serious’ attention - January 17, 2018
- Learn Law: The Concept of Alternative Dispute Resolution - February 8, 2017
- Union Budget 2017: Highlights and Full Text of Arun Jaitley’s Speech - February 1, 2017