SURROGACY BANE OR BOON?
VISHNU
CHANDRAN, IV YEAR BA.LLB (Hons) NUALS
Introduction:
The
human race has evolved in many different ways spanning a time period of
thousands of years but the urge to procreate has not changed. Some scientists
believe that the basic work of every human is to procreate so as to maintain
survival of the human species. As the society has developed so has our thought
process, from rudimentary to very complex philosophy. What makes us humans is
difficult to explain. But yes there is the emotional and a metaphysical
connection that we develop with others is generally unique to humans only.
Human are probably only species to maintain lifelong contact with their
children and no matter what they don’t let go of that feeling. So it’s natural
that when we humans start a family the urge to have children is but natural.
Something, which is part of you, which keeps your values and faith alive even
after you are gone. Though most human’s mange to have children there are some
unlucky few who remain childless. This is where the concept of surrogacy comes
into play to help these couples to have children who are genetically related to
them. Since we live in a society governed by law, it (law) sometimes comes into
conflict with the couples desire to have a baby.
Surrogacy and its forms:
The
literal meaning of surrogate is substitute. Surrogacy arguments are motivated
by a desire for genetically related child and the disincentive arising out of
prolix adoption procedure coupled with difficulty in finding suitable child for
adoption. A standard definition of surrogacy is offered by the American Law
reports in the following manner. “A contractual undertaking whereby the natural
or surrogate mother, for a fee, agrees to conceive a child through artificial
insemination with the sperm of the natural father, and to terminate all of her
parental rights subsequent to the child’s birth”
The most common kind of surrogacy is where a woman’s egg, is either through
artificial insemination or less often, natural intercourse, is fertilized by
the sperm of male partner of the couple desiring a child.Another form of
surrogacy utilizes the process of in vitro fertilization where the egg and
semen are obtained from commissioning couple, the resultant embryo being
implanted into the surrogate or carrying mother. (This can also be called
gestational surrogacy)
Reasons for surrogacy:
There
can be medical or non medical reason for seeking a child through surrogacy.
Medical
: The reasons can be blocked fallopian tube, cyst in the ovary, failure to
conceive, aggravating varicose veins etc.
Non-medical:
Inconvenience which pregnancy would entail example career prospects.
Socio legal issues :
When
a society changes rapidly, its ethical norms are challenged. They are
challenged by the biases of new knowledge and by the conflicts created as new
practices threaten these norms.
Ethics
is the notion of what is good and right in society that guides human action. In
periods of transition new understandings emerge of what is ethical practice.
This emergence is not a linear process but a trajectory interspersed with
conflicts of ideas and interests in various arenas of the technology-society
interface. In medicine, for example, the principles of beneficence,
non-maleficence, consent, confidentiality and patient autonomy have guided
clinical practice. The discipline of public health added social responsibility
and justice to the ethics of medical practice and research.
New reproductive technologies claim to help
human beings through creative interventions that reduce suffering and have the
potential to transform society. The commercialization of surrogacy, however,
creates several social conflicts rather than resolving a few. It generates
family pressure on poor women to offer their wombs for a price. Almost one
third of Indian women are extremely vulnerable due to poverty, marginalisation
in labour and job markets, patriarchal social and family structures and low
educational levels. For them, in particular, the financial gain through
surrogacy becomes a key push factor. It is well known that most surrogate
mothers are from not so well off sections and their primary motive to become
surrogates is monetary. This makes their economic exploitation easy for the
agents working for commissioning parents.
Procreation
and infertility must be interpreted within constructs like patriarchy and
within existing social and economic inequalities. The same is true for
surrogacy. The use of ART to help infertile couples add new conflicts. For
example, the way ART is practised reduces parents into objects of medical
experimentation and sanitizes the mystique of biological evolution. Surrogates
frankly accept monetary motives (treatment, education and housing for family
members) but face the dilemma that being a surrogate is socially unacceptable.
So rather than tell their neighbours that they gave away their child, they tell
them that the baby died. The government’s view on this subject is a matter of
concern. In a meeting convened by the Ministry of Women and Child Welfare in
June 2008, a minister of the government stated that the fact that these women
get amounts equaling two-three years of their wages cannot be ignored. This is
indicative of the mood in the government that sees surrogacy as a replacement
for employment guarantee and adequate subsistence.
Another
area of concern in the use of ARTs is for the disability and women’s movement.
This is around the narrowing of choices for couples in the name of expanding
choices. Gender, disability and infertility are social constructs. Yet, the Pre
conception and Pre-natal Diagnostic Techniques (regulation and prevention of
misuse) Act gives parents the absolute right to abort a disabled fetus. The use
of preimplantational genetic diagnosis in ART gives the option to eliminate
disability without defining any limits to this option. Thus, the selective exclusion
of the disabled and of girls has become possible through ART.
There
are cases of the surrogate refusing to part with the baby, but being unable to
pay back the sum received. There are also instances of the surrogate changing
her mind about the pregnancy and opting for abortion. Such actions conflict
with the interests of the commissioning parents and the reputation and profits
of the providers.
The
prospective parents hope that the surrogate will then conceive and bear a child
and immediately following birth, the baby is given to the married couple to
raise as their own. It means surrenders all her parental rights in the child.
This is usually accompanied by a written contract specifying the rights and
duties of all parties concerned and the compensation for the service rendered
by the surrogate mother. Now the difficult question arises as to who is the
legal mother of the child and whatever position we take gives rise to these
issues,
I.
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 Gursky 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.
II. 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:
1. To make all children born by way of AID
to be legitimate child of the legally wedded spouses during the subsistence of
marriage.
2. To grant legitimacy only where there is
consent of the husband.
III. Custody of the child:
What
happens when there is tug of love in the court? Who gets the custody?
In
Strand vs. Strand
, the question of custody came up. The court granted visitation right to the
father as the court considered that the child had been potentially adopted.
IV. Consumation 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.
INTERNANTIONAL
PERSPECTIVE ON SURROGACY:
Surrogacy
has turned into a baffling legal quagmire and different people have different
views. Each country is dealing according to its own socio-legal situation and
the Indian courts are still grappling with the situation.
(a.) United States of America:
In
US, different states have different legislation. In Arizona, North Dakota and
Utah the legislature has taken a blanket approach deeming all surrogacy
contracts to be void and unenforceable.In Kentucky, Louisiana, Nebraska and
Washington only those surrogacy contracts are void which compensate the surrogate
mother.In Florida, New Hampshireand Virginia its legal and enforceable but
commercial surrogacy is prohibited (surrogate mother has the right to rescind
the contract).
Judicial
response in the United States is the best illustrated in the case In re Baby M
. In this case, the couple entered into an agreement with the surrogate mother
whereby she had to carry the child and then surrender the custody of the child
in return for 10 thousand dollars plus medical expenses. After delivery, she
refused to give up the child. The New Jersey Supreme Court (the state had no
surrogacy laws then) held the contract to be unethical and unenforceable. The
court refused to extend the protection of right to privacy and right to
procreation to such agreements holding that custody, care, companionship and
nurturing are not parts of the right to procreation.
Lastly the court held it to be violative of
the public policy as the contract was involuntary due to the irrevocable
commitment of the mother before she knew the strength of her bond with the
child.
In
contrast, in Johnson vs. Calvert
, the California Supreme Court broke new grounds. The court extended
constitutional protection to surrogacy contracts and validated them on
touchstone of public policy considerations. The court said,” surrogacy
contracts involved free informed and rational choice by the women.” The court
held that the ethical issues of exploitation and commodification have to be
decided by the legislature . The court struck a resounding note on freedom to contract
and economic independence of the women. To determine the natural mother the
court propounded the intention test i.e. the surrogate mother would not have
given birth to the child but for the intention on the part of the genetic
mother and thus the surrogate mother is just a facilitator in the act of
procreation by giving voluntary consent. The genetic parents are the prime
movers of the procreation process.
Thus we can see that slowly the courts changed their view and were not only in
favour of surrogacy but also spoke in favour of individual freedom.
(b.) United Kingdom
Surrogacy
is not illegal in the UK but it is restricted by various legal rules. For
example, it is a criminal offence to advertise that you are looking for a
surrogate, or are willing to act as a surrogate. It is also an offence to
broker a surrogacy arrangement on a commercial basis. SUK does not fall foul of
these laws because it operates on a not-for-profit basis.
Surrogacy
agreements are also unenforceable in UK courts; this means that it is not
possible to enter into a legally binding surrogacy agreement in the UK. The
family courts have in practice proved sympathetic to intended parents applying
to uphold a surrogacy arrangement, but they have a wide discretion to act in
the best interests of the child, which means there are no guarantees. The
Surrogacy Arrangement Act, 1985 declares initiation and involvement in
commercial surrogacy agreements to be criminal offence.
The
Human Fertilization & Embryology Act, 1990 makes surrogacy agreements
unenforceable. So under English law, surrogacy is legal only if it involves
payment of expenses reasonably incurred by the surrogate mother. Its
interesting to note that the contract is not binding on either parties. After
six weeks, the genetic parents can apply for a Parental Order from the court
under sec. 30 of the HFE Act, 1990 that gives them full and permanent right
over the child.Thus in UK too though surrogacy contracts are not binding the
tilt of the court is in favour of the intended parents who hire surrogate
mothers to get a child.
INDIA & SURROGACY
There
is no law governing surrogacy in India. There is only 126-page document
regulating the technologies used. The India Council of Medical Research (ICMR)
issued National Guidelines for Accreditation, Supervision and Regulation of RT
clinics in India in 2005, but the guidelines are legally non-binding. On 5th of August, 2009 the Law Commission of
India submitted the 228th report
titled “Need for Legislation to regulate Assisted Reproductive Technology
Clinics as well as Rights and Obligations of parties to a Surrogacy” to the
Union Minister of Law and Justice, Ministry of Law and Justice, Government of
India. The report expressed the view of the Law Commission on the Indian
Counsel for Medical Research Guidelines 2005 on Surrogacy, the draft Assisted
Reproductive Technology (Regulation) Bill and Rules 2008 and the Seminar on
“Surrogacy Bane or Boon”. The report had
also made recommendations to be kept in mind while legislating on surrogacy.
The draft ART
(Regulation) Bill, 2008
:
A
huge infrastructure is proposed for registration and standardization of clinics
and sperm banks. However, there will be little effort to regularly monitor the
success rates of different techniques. The focus is on research in and
popularisation of ART rather than on stopping the misuse of technology and the
exploitation of donors and surrogates. This is illustrated in the following
examples.
An
extremely inadequate and open format for a private contract between surrogates
and commissioning parents permits the continued exploitation of surrogates. It
does not address concerns such as issues of health, informed consent,
compensation and legal assistance. This is despite the fact that the Bill
recognises surrogacy as `pregnancy achieved in furtherance of ART`, and
therefore acknowledges its imperfection.
The
Bill also propagates the patriarchal and eugenic values of exclusivity by
giving primacy to genetic parenthood. It goes to the extent of denying the
right of the surrogate to be registered as the birthing mother and directly
transfers parentage to protect the right of the buyer at the cost of the baby.
At the same time the interests of clinics and sperm banks are fully protected.
All risks are transferred to the surrogate be it her death, complications during
foetal reduction or the transfer of infections such as HIV.
The
Bill denies the critical developmental needs of the baby and in order to make
separation easy and quick for a commercial surrogate, ensures fast separation.
It also bans the donation of ova by her. It goes to the extent of permitting
three surrogate births to a woman and three cycles of ova transfer for a single
couple without any reference to the health risks to the surrogate. At the same
time the right to demand abortion and pregnancy reduction is given to the
commissioning parents and the surrogate is bound to oblige. No attention is
paid to the right of the surrogate to keep the baby if she changes her mind
early or due to the death of her own child.
Similarly,
same sex parents do not get any recognition by the draft though single parents
can access the technology.
The
question of the identity of a parent is clouded by secrecy and anonymity. No
effort is made to bring about a degree of openness and co-operation between the
two families to secure the welfare of the baby.
The
Bill not only openly protects and promotes unregulated commercial surrogacy; it
also contradicts existing national policies on health and family welfare. These
contradictions are:
a)
The state has a two-child policy to ensure stable populations and women’s
health. Those opting for surrogacy cannot be exceptions.
b)
Maternal mortality, which is a matter of great concern for the government, will
by no means decline if surrogacy practices permit nine possible cycles of transplant
of ova (a maximum of three cycles for a single commissioning couple and three
surrogate babies in a lifetime irrespective of the number of her own children).
c)
The state’s public policy is against gender exploitation, but gender-based
economic and social exploitation is built into present surrogacy practice.
d)
The sale of children, human trafficking and sale of body parts are illegal
activities as is evident in the laws for trafficking and human organ
transplant. Yet commercial surrogacy is being promoted.
e)
India is a party to the UN Convention on the Rights of the Child and committed
to the protection of children before and after their birth. Yet the present
legislation does not ensure that child rights are fully protected.
The
fact that the drafting committee was not concerned about these contradictions
is reason enough to demand that these questions be thrown open to a public
debate to find how best the interests of the baby, the surrogate mother or the
adopting parents could be looked after within an ethical frame.
The present Indian
scenario:
As the draft Bill has not yet been passed the
clinics that provide ART facilities take recourse to the guidelines. They make
the surrogate mother sign a contract with the childless couple. But the legality
of the contract is questionable. The rights of surrogate mother are also
unclear . The real problem arises after the birth of the baby. Foreigners are
unable to get legal assistance to take their child back to their home country. The recent case where
the German couple had to go to the Supreme Court to take their babies back to
Germany because the German law doesn’t recognize surrogacy and the Indian Govt.
refused to give the babies Indian Passport. Justice. A. K. Ganguly directed the
Govt. of India to help the German couple to take back their twins.
In
the case of Baby Manji Yamuda vs. UOI
, the biological parents Dr. Yuki Yamuda and Dr. Ikufuni Yamuda came to India
in 2007. They chose a surrogate mother in Gujarat and entered into surrogacy
agreement. There was some matrimonial discord between the parents. The child
was born on 25th of July 2008 and was moved to Jaipur. In the meantime, the
father went back as his visa expired. The grandmother came back from Japan and
claimed the child. An NGO filed a habeas Corpus petition for the child and
claimed that as there is no law governing surrogacy in India, there was a money
making racket going on. The Supreme Court declared,” commission constituted
under CPCRA (Commission for Protection of Child Rights Act), 2005 has right to
enquire into complaints or take suo motto notice relating to violation of child
rights and development of children and provide relief in such matters.” The
court also went on to define different types of surrogacy. The court finally
directed the Solicitor-General to help the grandmother to get a passport for
the child and extend her visa.
The
issue of surrogacy is afflicted with numerous moral and ethical questions, e.g.
(a.) is it morally right for a woman to offer herself for a fee, procreate and
then sell the child? (b.) Is it correct to use surrogacy for household needs of
married woman? (c.) Will it not lead to subjugation and exploitation of women?
Another area of concern in the use of ARTs is for the disability and women’s movement.
This is around the narrowing of choices for couples in the name of expanding
choices. Gender, disability and infertility are social constructs. Yet, the
Pre-conception and Pre-natal Diagnostic Techniques (regulation and prevention
of misuse) Act gives parents the absolute right to abort a disabled foetus. The
use of preimplantational genetic diagnosis in ART gives the option to eliminate
disability without defining any limits to this option. Thus, the selective
exclusion of the disabled and of girls has become possible through ART.
Though
surrogacy is not bad per se but its throwing new challenges everyday even
though it’s an old practice. The Hindu mythology offers an instance of
surrogacy in Bhagwatpurana where the embryo from Devaki’s womb was transferred
to Yogmaya’s womb who finally delivered the child. Having children to maintain
the family continuity is everyman’s desire. So surrogacy is a great social
need.
Under
these circumstances, it’s essential for India to formulate a policy and law
looking at surrogacy through the lens of individual rights and freedom.
Conclusion:
The
concept of surrogacy is an emotional issue for many but the legal facets are
huge too. Non-intervention of law in this knotty issue will be a regressive
step at a time when law is set to act as ardent defender of human liberty and
an instrument of distribution of positive entitlements. But all said and done
the some issues will always remain. The freedom of the mother, the rights of
the child, the controversy if the mother wants to abort the child even though
is not her own. The Indian legislature can’t close its eyes on this important
issue and should come up with a holistic law giving maximum freedom to the
contracting parties.
Ministry
of Health and Family Welfare, Government of India, Indian Council of Medical
Research. The Assisted Reproductive Technology (Regulation) Bill & Rules -
2008. [Draft]. New Delhi: MOH&FW, ICMR; 2008. [cited 2008 Dec 30].
Available from:
http://icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&%20Rules%20-%202008-1.PDF
Ghai
A, Johri R. Prenatal diagnosis: Where do we draw the line? Indian Journal of Gender Studies
2008 May-Aug; 15(2): 291-316.
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