An Introduction to Surrogacy: What It Is and How It Works

14th June, 2024 - 7:29 am Categories: Surrogacy in India 0 Comments

INTRODUCTION

In surrogacy, a woman bears a child for another couple; what is the scope of a surrogate mother’s legal rights for the child, even if they are genetically related?

Surrogacy elicits diverse viewpoints. Some perceive it as a severe form of exploiting financially disadvantaged women, as observed in Europe. Conversely, some regard it as an opportunity for underprivileged women to generate income and sustain themselves. Both radical feminist perspectives are counterbalanced, with the latter emphasising a greater inclination towards socioeconomic autonomy and welfare policies.

WHAT IS SURROGACY?

A woman who carries a foetus created through assisted reproduction and derived from the genes of one or more donors with the purpose of giving the kid up to the donor or another individual at birth is referred to as a “surrogate mother” & the process is termed as surrogacy.

An embryo formed by the contracting parents’ egg and sperm (or the contracting father’s sperm and an egg donated or acquired from another woman) is gestational surrogacy.

An individual who donates an egg that is fertilised with the contracting father’s sperm and proceeds to gestate the foetus is known as a genetic surrogate. 

There is always a conflict when it comes to commercial ART as to whether the doctors should give the best interest and weightage to the concerns and rights of reproductive parents or to the medical risks associated with surrogacy that will affect the surrogate mothers[1].

RIGHT TO SURROGACY

Rights can be evaluated based on the interests they seek to safeguard and the entitlements they grant to its holders.

Can the right to surrogacy be considered as the right to assisted procreation? Surrogacy is not equivalent to procreation, although it can assist couples in fulfilling their desire to have and raise biological children. However, surrogacy fails to uphold procreative rights due to the potential claims that right-holders may have towards others, including the state.

Of course, others could counter that the desire for the ability to have children does not alone justify the right to surrogacy, as adoption can fulfil this need.

The right to surrogacy, as a form of assisted reproduction, aims to protect the desire to conceive biological children. Various circumstances may have contributed to this specific inclination. For certain individuals, adoption within the current legal and international framework may be unfeasible or require an overly protracted process.

Some individuals may have concerns about their ability to provide the necessary intuition and comprehension required to care for an adopted child. They may also be concerned about the possibility of an adopted child having certain requirements that they, as prospective parents, may not be equipped to fulfil. Alternatively, they may believe that possessing a common genetic lineage will assist them in surmounting the difficulties associated with raising a kid.

Is right to surrogacy a contractual right?[2]

The agreement is employment-based in nature, with both parties entering into it with the understanding that the intended surrogate will do reproductive work on behalf of the commissioning parents.

It should be legal for a woman to use their bodies for reproductive labour. Such, contractual freedom must be exercised by both the parties. And State’s obligation is to form surrogacy contractual laws, further, commissioning couples should have obligation after child’s birth.

SURROGACY AS SEEN FROM ETHICAL PERSPECTIVE

The majority of concerns related to surrogacy revolves around consent & autonomy..  Do woman enter into these contracts as an expression of personal autonomy and have a full understanding of the probable repercussions of her actions? Or whether   poverty, economic factors, lack of risks, and lack of information contribute to the development of these contracts?

Consequently, a significant debate exists over the issue of reproductive rights versus reproductive justice.

Implementing a complete ban or opting for its complete elimination is not a practical answer, but the implementation of well-defined policies and regulations is the appropriate approach.

Currently, many women are choosing to postpone having children due to their pursuit of education and job prospects. However, they still desire to experience motherhood. In this context, surrogacy or other assisted reproductive technologies (ART) present a suitable “opportunity cost.”

PROBLEM IN INDIA? IS SURROGACY COMMODIFYING THE BODIES OF POOR? [3]

There is a perpetual controversy in the realm of commercial ART regarding whether doctors should prioritise the concerns and rights of reproductive parents or the medical dangers involved with surrogacy that impact surrogate moms.

According to the Swedish Medical Women’s Association, surrogacy in Indian women may heighten the likelihood of depression, thromboembolic disorders, or hypertension as a consequence of the surrogacy process. In India, the perceived risks associated with In Vitro Fertilisation (IVF) are frequently minimised or underestimated, leading to a widespread belief that surrogate pregnancy is comparatively less hazardous than natural pregnancy.
Frequently, doctors in IVF facilities that provide surrogacy services demonstrate a lack of professionalism.
In India, the daily wage labourers receive such meagre compensation that they view it as a practical means of subsistence and prefer it over enduring 15-hour workdays under oppressive conditions. Additionally, they utilise the earnings to finance their daughters’ marriages.
‘‘[T]here is nothing wrong with this.We give them a baby and they give us much-needed money. It’s good for them and it’s good for us’’
Surrogacy presents an expanding avenue for unmarried mothers in India. The primary rhetorical emphasis lies in the concepts of equitable exchange, favourable opportunities, and freedom of choice.

COMMERCIAL SURROGACY IN INDIA

The use of commercial surrogacy in India is the subject of intense disputes regarding reproductive rights, family dynamics, and the ethical implications of technology. These debates arise from the practice of hiring Indian women to serve as surrogate mothers in a technologically facilitated arrangement that involves the use of donated gametes from couples who have commissioned the surrogacy, as well as from anonymous sperm and egg donors.

[Image Sources: Shutterstock]

 Embedded in these disputes are inquiries concerning the worth of the offspring resulting from the arrangement, as well as the method by which the surrogate’s contribution is assessed. The unsettling aspect of turning intimate relationships into commodities is evident in the way ethics are discussed in public conversations about commercial surrogacy. The control over participation in the arrangement is exerted through the use of contracts, and the entire process is overseen by agent-facilitators.

The recruitment process in commercial gestational surrogacy in India is characterised by a series of interconnected chains involving a network of agents, surrogates, couples, and IVF specialists. Local networks facilitate the process of recruiting surrogates.

In altruistic surrogacy agreements, friends or family may serve as surrogates, whereas in commercial surrogacy, surrogates are typically recruited through reproductive clinics with surrogacy programmes, surrogacy agents, and websites.

SURROGACY (REGULATION) ACT, 2021

The 2021 surrogacy law in India permits solely altruistic surrogacy, wherein the surrogate mother carries the kid to assist another individual or couple without receiving any financial remuneration except from medical bills and insurance coverage.
This provision guarantees that surrogacy agreements in India maintain high standards of ethics and transparency, with a primary focus on the welfare of all individuals involved.
Furthermore, the legislation establishes many prerequisites that must be fulfilled prior to a couple or individual being able to choose surrogacy in India, highlighting the significance of conscientious and controlled surrogacy procedures in the nation.

Therefore, the surrogacy law in India is specifically established to prevent the exploitation of women.

GUIDELINES FOR SURROGACY IN INDIA AS PER SURROGACY (REGULATION) ACT, 2021

The 2021 surrogacy law in India has set specific requirements for intended parents who wish to pursue surrogacy.
In accordance with the legislation, the prospective spouse must be legally wed and satisfy particular age requirements.

The female partner must be aged between 23 and 50 years, while the male partner must be aged between 26 and 55 years.
In addition, it is required that the couple does not have any biological children from a previous marriage.
The female partner must possess a medical justification for surrogacy, substantiated by valid medical documentation.
The prospective surrogate mother should be married and have at least one biological child.
A single woman may also be eligible as an intended parent if she is between the ages of 35 and 45 and is either married, divorced, or widowed. However, if she has a living kid from a prior marriage, she cannot participate in surrogacy.
Surrogacy arrangements in India are not allowed for single males or same-sex couples.
A medical indication in the intended mother is necessary.
The recent legislation on surrogacy in India permits couples to choose surrogacy as an option under specific medical circumstances, such as MRKH syndrome, unicornuate uterus, repeated unsuccessful attempts at in vitro fertilisation, miscarriage, or abortion.

Further, provisions for surrogate mother are vast – that surrogate mother should not provide her own gametes, can act as surrogate only once in her lifetime, written informed consent of the surrogate after well defining her the procedures, side effects, after effects and so on.

Also, the surrogate can withdraw her consent before implanting the embryo.

Section 10 of the aforementioned Act addresses the prohibition of abortion. It states that no institution is allowed to compel the surrogate mother to terminate the pregnancy during any stage of surrogacy, unless specific circumstances are outlined.

Finally, surrogacy is governed by regulations that aim to assure safety. Each surrogate is permitted to undergo the process only once, while the intended parents are limited to a maximum of three attempts at surrogacy. Each attempt allows for the transfer of only one embryo, guaranteeing optimal safety for all individuals involved.

RECENT DEVELOPMENTS

The Indian government has made a significant change to the regulations governing surrogacy in the country. The Surrogacy (Regulation) Rules of 2022 have been amended to allow couples who have been verified as having medical issues to use gametes from sources other than themselves.

Form 2 (Consent of the Surrogate Mother and Agreement for Surrogacy) of the Surrogacy Rules, along with Rule 7, was amended on March 14, 2023 to explicitly state that the use of donor eggs is not allowed in gestational surrogacy for intending couples.
Paragraph 1(d) of the same document has been modified by a notification from the Ministry of Health and Family Welfare. The new version of the paragraph now reads as follows:

“(i) couple undergoing surrogacy must have both gamete from the intending couple. However, in case when the District Medical Board certifies that either husband or wife constituting the intending couple suffers from medical condition necessitating use of donor gamete then surrogacy using donor gamete is allowed subject to the condition that the child to be born through surrogacy must have atleast one gamete from the intending couple;

(ii) single woman (widow or divorcee) undergoing surrogacy must use self eggs and donor sperms to avail surrogacy procedure”.

Therefore, if the District Medical Board verifies that either the intended couple’s spouse has a medical condition that necessitates the use of a donor gamete, surrogacy utilising donor gametes will be permitted. It is crucial to remember that in order for this requirement to be met, at least one gamete needs to originate from the intended partnership.

Remarkably, the 2023 amendment was challenged in court to the Supreme Court just the year before by a woman who suffered from Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, a condition that prevented her from ovulating. The Supreme Court observed during the hearing that Rule 14(a) of the Surrogacy Rules seemed to be broken by requiring the intended partner’s egg and sperm in gestational surrogacy.

The Supreme Court ultimately granted the petitioner-woman[4] authorization to utilise a donor egg for surrogacy by momentarily halting the amendment’s application to her particular situation, but keeping the larger issue open for more research. Not only did the woman depend on a donor egg to bear children, but it was also noted that the couple had begun the surrogacy procedure well in advance of the amendment.

During a hearing on a petition[5] The Delhi High Court made a note of the change in the same year that it looked to violate a married infertile couple’s fundamental right to become parents by preventing them from using legally and medically approved procedures and services. There was a claim that the change rendered the Assisted Reproductive Technology (Regulation) Act, 2021 meaningless and seriously conflicted with its original objectives. In this case, the modification was made before the embryo was produced.

Furthermore, a further appeal was also submitted to the [6]Bombay High Court in 2023, asserting that individuals, both male and female, who experience fertility issues would be unable to pursue surrogacy if the use of donor gametes is prohibited.

The Centre notified Justices BV Nagarathna and Sanjay Karol of the Supreme Court Bench at a hearing early in January that it was actively reexamining the Surrogacy Rules revision. The observations found in cases when married women were unable to conceive due to medical issues prompted this reexamination. The regulations that forbid the use of donor gametes would be modified by the amendment.

CONCLUSION

I feel that Surrogacy laws and rules in India are vast which provides and protects rights of surrogate woman. However, it is imperative to recognise that even if the law prohibits commercial surrogacy and only allows altruistic surrogacy, the ground reality often differs as in many villages these laws have been circumvented.

Furthermore, the current law lacks to address the surrogate mother’s right to abort. It states that no organization can force the surrogate to abort, however what if the intending couple wants the abortion? The o recent amendments which allow the surrogate mother to donate the gamete states  that the child obtained from such setting would be biological child of the intending couple when both the gametes come from intending couple, but the recent amendment  does not address the legal rights over that child of a surrogate mother.

Thus, the Acts in India protect surrogate at large however significant loopholes exists at ground level. Therefore, there is a pressing need for oversight of the existing legislation to mitigate its limitations.

Author: Himanshi, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1] ‘‘Wombs for rent’’ grows in India. Marketplace on NPR December 27.http://marketplace.publicradio.org/display/web/2007/12/27/surrogate_mothers/

[2] Christine Straehle, ‘Is there a right to surrogacy?’[2016] 33(2) Symposium on International Markets Guest <https://doi.org/10.1111/japp.12145>

[3] ( Birgitta Essen & Sara Johnsdotter, Transnational surrogacy – reproductive rights for whom? 94 (2015) 449-450, Nordic Federation of Societies of Obstetrics and Gynecology )

[4] Arun Muthuvel vs. Union of India and Ors. (05.02.2024 – SC Order) : MANU/SCOR/17393/2024

[5] DR RAVIKANT CHAUHAN & ANR. v. UNION OF INDIA & ORS. & Other Connected Matter : 2023 LiveLaw (Del) 981

[6] Pooja Avinash Nandurkar and Anr. v. Union of India and Ors.