In this blogpost, Deiya Goswami, a student of IInd year, University of Petroleum and Energy Studies, Dehradun writes about different kinds of surrogacy, rights and interests of the parties involved in surrogacy and the features of new bill which intends to resolve conflicting interests of parties of commercial surrogacy.
The word ‘surrogate’ comes from a Latin term “Surrogatus” which means to substitute, that is, a person appointed to act in the place of another. The Black’s Law Dictionary defines Surrogacy as a process of carrying and delivering a child for another person.
Section 2(aa) of the Draft Assisted Reproductive Technologies (Regulation) Bill, 2010 (popularly called the ART Bill) defines “Surrogacy (gestational) as an agreement in which a woman agrees to a pregnancy achieved through an assisted reproductive technology in which neither of the gametes belong to her or her husband, with the intention to carry it till term and hand over the child to the person or persons for whom she is acting as a surrogate”.
The ART Bill 2010 also defines the term ‘surrogate mother’ as a woman who is a citizen of India and is resident in India, who agrees to have an embryo generated from the sperm of a man who is not her husband and the oocyte of another woman, implanted in her to carry the pregnancy to viability and deliver the child to the couple/ individual that had asked for surrogacy.
TYPES OF SURROGACY
- Traditional or Partial Surrogacy
In the customary case, the surrogate mother will be inseminated with the sperm of the expected father or the sperm from a benefactor, in case the sperm count is low. Here the mother would be hereditarily related to the child in light of the fact that in either case the surrogate’s own egg will be utilized. Because of this reason the two parties’ i.e. fruitless couple and surrogate mother go into an agreement where surrogate mother is artificially inseminated with the sperm of male accomplice of that couple.
- Gestational Surrogacy or Total Surrogacy
A pregnancy all together requires a sperm, an egg, and a uterus. In the event of gestational surrogacy, the eggs are extracted from the intended mother or egg donner and blended with sperm from the intended father or sperm giver in vitro. If arises an occurrence of aggregate surrogacy, an incipient organism made by the procedure of In-Vitro Fertilization is embedded into the surrogate’s uterus. One thing qualified to say in setting of gestational surrogacy is that here the mother is not hereditarily related with the baby. The gestational surrogacy goes under the ambit of helped regenerative advances. Gestational surrogacy can be depicted as “Womb Renting Process”. The motivation to call it so is that the surrogate mother only permits her womb to be utilized for conveying encourages the regenerative procedure.
- Surrogacy on the Basis of Financial Reward
It is that form of surrogacy wherein the surrogate mother is paid not only for the medical and other expenses to deliver the child, but in addition to that a hefty amount is also paid to carry the child till maturity in the womb. Generally in this form of surrogacy, the intended parents and surrogate mother are not known to each other before entering into an agreement. Due to this reason, this form of surrogacy is purely guided by monetary considerations. In commercial surrogacy arrangements, the surrogate mother enters into an agreement with the commissioning parents or single parent to bear the burden of pregnancy. In return for her agreeing to carry the term of the pregnancy, she is being paid by the commissioning parents. The usual fee is around $ 25,000 to $ 30,000 in India which is around 1/3rd of that in developed countries like the USA. Thus money plays an important role in this type of surrogacy. Its nature is purely commercial. In India, the greed for money is responsible for the increase in the cases of commercial surrogacy. This form of surrogacy is very complex in nature and has generated a heated debate all over the world amongst academicians and legal luminaries.
- Altruistic or Emotional Surrogacy
It is that form of surrogacy in which the surrogate mother does not receive any financial reward for the pregnancy or for the pain to be undertaken by her or for the handing over of the child to the commissioning parents. It is also known as non-commercial surrogacy or emotional surrogacy. However in altruistic surrogacy, all expenses such as reimbursement of medical and other expenses related to the pregnancy and birth would be paid to surrogate mother by intended parents. In nutshell it can be said that when the surrogate mother does not receive any monetary gain in order to give birth of child for intended parent it is known as altruistic surrogacy.
Thus, Surrogacy is commercial or altruistic depending on whether the surrogate receives financial reward for her pregnancy or for the relinquishment of the child or not.
FACTORS RESPONSIBLE FOR SURROGACY
Extreme poverty and social and economic backwardness in India are some of the forces which are driving women into this ethically unacceptable business.
Surrogacy arrangements are motivated by a desire for a genetically related child and the disincentive arising out of the prolix adoption procedures coupled with the difficulty in finding a suitable child for adoption.
The costs of medical treatment are less in India, and it is proving to be an attractive hub for foreigners to procure benefits of medical tourism especially surrogacy. Thus, India is witnessing a hike in cases of commercial surrogacy due to medical tourism boom fuelled by low medical costs.
It has been noticed that the day to day changing lifestyles as well as the higher cost of living are also forcing women to adopt surrogacy as a business to earn money.
Some of the countries have either banned commercial surrogacy or have enacted stringent laws to deal and regulate the commercial surrogacy as a money making profession. In countries like Japan, England, Australia, commercial surrogacy is illegal. Opposite to this, in India the commercial surrogacy is considered legal.
LEADING CASES
Interests and Rights of Surrogate Child
In P. Geetha v. The Kerala Livestock Development Board Limited 2015 SCC Ker 71, the Kerala High Court while dealing with an urgent issue as to whether or not a biological mother is entitled for the maternity leave in a case where she has obtained the baby through surrogacy, gave a landmark judgement in favour of the genetic/biological mother. The court held that a mother who has obtained the baby through surrogacy is entitled to all the benefits of an employee on post-delivery, i.e. the child specific statutory benefits. In the instant case, the respondents refused to grant maternity leave to the petitioner (an employee in the government of Kerala undertaking) to take care of the new born on the ground that the Kerala Livestock Development Board Ltd. Rules and Regulations, 1993 only provide maternity leave envisaged under normal circumstances. It was contented on behalf of the petitioner that “motherhood does not end with the delivery of a baby, but continues with more vigor through the process of child rearing, which is an equally difficult task”.
Interests and Rights of Surrogate Mother
Baby Manji Yamada v. Union of India, 2008 11 SC 150, popularly known as Baby M case wherein the surrogate mother after handing the child over to the intended parents became deeply disturbed, disconsolate, stricken with unbearable sadness and had to have her child back. She could not eat, sleep or concentrate on anything other than her need for her newly born baby. The Court held that such an agreement is not in the interest of the mother. Despite this, the Supreme Court, in this case, held that the Surrogacy Agreement was valid in India.
Interests and Rights of Commissioning Parents
The individual’s interest in domestic relation also includes interest in relationship of parents and child. The infertile couples have a right to family and child which are important individual interests. But the question is whether interest in becoming parents of a child is permissible at the cost of health of surrogate mothers. It is true that the right to family and to have children, right to procreation and right to access to modern scientific technology are some of the rights which cannot be denied to commissioning parents. Modern reproductive technology has brought up a ray of hope for such infertile couples.
The Assisted Reproductive Technologies (Regulation) Bill, 2010
The aim of law is to build and maintain the efficient structure of a society which sustains the satisfaction of the maximum desires with minimum friction and waste. Therefore law is concerned with satisfaction of individual or social needs, wants, claims and interests. The law has to recognize just interests-individual, public and social and it has to satisfy the competing claims to satisfy the just claims, demands and expectations keeping in view the total common good. This aim can be accomplished through the process of social engineering which facilitates balancing of conflicting interests. The Ministry of Health and Family Welfare along with the Indian Council of Medical Research (ICMR) drafted the Assisted Reproductive Technologies (Regulation) Bill in the year 2008 to balance and resolve conflicting interests of parties of commercial surrogacy. Unfortunately, the ART Bill 2008 was appearing ineffective to address the all concerns of the parties of surrogacy and therefore recently the Parliament of India revised it and passed a new Bill in 2010. It would not be out of place to mention here that before drafting of the aforesaid mentioned Bills on reproductive technology, the ICMR had also framed guidelines for ART clinics which were functioning within the country to deal with surrogacy. However, the draft of both the Bills is somewhat similar to the ICMR guidelines of 2002. The draft of ART Bill 2010 to some extent is affording the protection of the rights and interests of the parties involved in surrogacy and trying to reconcile the conflicting interests of the surrogate mother, rights of the children and commissioning parents.
Features of the Bill
Some of the salient features of the new bill are:-
- Legal Enforceability of Surrogacy Contracts
- Guardian to Take Care of Surrogate Mother
- Screening of health and age of Surrogate mother
- Issuing of Certificate to Surrogate Mother
- Confidentiality of Surrogate Mother
- Abnormalities of a Child no Bar in Adoption
- Legitimacy of Child born out of Surrogacy
- Right of the Surrogate Child to Obtain Information
