SURROGACY BANE OR BOON?

   

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[1]” 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[2]. 

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[3] .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[4]  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[5]  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[6] , 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[7] . On the same ground, one can sue for a decree of annulment of marriage under the Special Marriage Act, 1954[8] . 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[9] .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[10] . 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[11] , 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.[12] 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[13] :

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[14] , 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[15].

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.

           

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[1] American Law Reports, validity and constructs of surrogate parenting Agreement, 77 ALR 4^th 70. (1989)

[2] Ghai A, Johri R. Prenatal diagnosis: Where do we draw the line? Indian Journal of Gender Studies 2008 May-Aug; 15(2): 291-316.

[3] 1948) 78 N.Y.S 2d 390

[4] (1963) 242 N.Y.S 2d 406

[5] (1967) 62 Cal.Rep. 462

[6] (1948) 78 N.Y.S 2d 390

[7] Sec 32(a) of the Parsi Marriage and divorce Act 1936

[8] sec 25 (1) of the Special Marriage Act 1954

[9] Sec 12(1)(a) of the Hindu Marriage Act 1955

[10] 537 A.2d 1227 1988

[11] 5 Cal. 4^th 84 1993

[12] Surrogacy Parenting Associates V commonwealth ofKentucky, 704 S.W.2d 209 (1986)

[13] 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

[14] AIR 2009 SC 84

[15] Ghai A, Johri R. Prenatal diagnosis: Where do we draw the line? Indian Journal of Gender Studies 2008 May-Aug; 15(2): 291-316.