LEGAL AND ETHICAL ISSUES OF SURROGACY WITH … T.M.pdf · LEGAL AND ETHICAL ISSUES OF SURROGACY WITH SPECIAL REFERENCE TO ... the legality of surrogacy agreements, the Indian Contract

176

INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS

VOLUME 1 ISSUE 3 2014

LEGAL AND ETHICAL ISSUES OF SURROGACY WITH SPECIAL

REFERENCE TO INDIA

*Prashanth T.M

I. Introduction

The last nearly 20 years have seen an exponential growth of infertility clinics that use

techniques requiring handling of spermatozoa or the oocyte outside the body, or the use of a

surrogate mother. As of today, anyone can open infertility or assisted reproductive

technology (ART) clinic; no permission is required to do so. There has been, consequently a

mushrooming of such clinics around the world except some countries. The low-cost

technology, skilled doctors, scant bureaucracy and a plentiful supply of surrogates have made

India a preferred destination for fertility tourism, attracting nationals from Britain, the United

States, Australia and Japan, to name a few. The economic scale of surrogacy in India is

unknown, but study backed by the United Nations in July 2012 estimated the business at

more than $400 million a year, with over 3,000 fertility clinics across India1. In developing

countries, clinics advertise for low-cost surrogacy: the price of a baby in India may be one

fourth of the price in California. And very importantly we can notice that, anyone can open

infertility or assisted reproductive technology (ART) clinic; no permission is required to do

so. There has been, consequently a mushrooming of such clinics around the country.

Surrogate mothers receive medical, nutritional and overall health care through surrogacy

agreements.

II. Meaning of Surrogacy

Surrogacy is a well known method of reproduction whereby a woman agrees to become

pregnant for the purpose of gestating and giving birth to a child she will not raise but hand

over to a contracted party. She may be the child's genetic mother (the more traditional form

for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after

having been implanted with an embryo. In some cases surrogacy is the only available option

for parents who wish to have a child that is biologically related to them.

1 Nita Bhalla and Mansi Thapliyal, India Seeks to Regulate Its Booming Surrogacy Industry from Reuters Health Information. Sep 30, 2013.

http://www.medscape.com/viewarticle/811861?nlid=35152_2043&src=wnl_edit_medn_obgy&uac=149266AJ&spon=16

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The word "surrogate", from Latin "subrogare", means "appointed to act in the place of".

The intended parent(s) is the individual or couple who intends to rear the child after its birth2.

The “surrogacy”, means 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 to carry it and hand over the child to the person or persons for

whom she is acting as a surrogate;3. Surrogacy is an arrangement between a woman and a

couple or individual to carry and deliver a baby. Women or couples who choose surrogacy

often do so because they are unable to conceive due to a missing or abnormal uterus, have

experienced multiple pregnancy losses, or have had multiple in vitro fertilization attempts

that have failed.

The advantage of gestational surrogacy to the parents is that the embryo is created from

the woman’s egg and the man’s sperm, so it is biologically theirs. "Commercial surrogacy"4

is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her

womb and is usually resorted to by well off infertile couples who can afford the cost involved

or people who save and borrow in order to complete their dream of being parents. This

medical procedure is legal in several countries including in India where due to excellent

medical infrastructure, high international demand and ready availability of poor surrogates it

is reaching industry proportions. Commercial surrogacy is sometimes referred to by the

emotionally charged and potentially offensive terms "wombs for rent", "outsourced

pregnancies" or "baby farms". The world's second and India's first IVF (in vitro fertilization)

baby, Kanupriya alias Durga was born in Kolkata on October 3, 1978 about two months after

the world's first IVF boy, Louise Joy Brown born in Great Britain on July 25, 1978. Since

then the field of assisted reproductive technology (ART) has developed rapidly5.

Declaration of Human Rights 1948 says, inter alia, that “men and women of full age

without any limitation due to race, nationality or religion have the right to marry and found a

family”. The Judiciary in India too has recognized the reproductive right of humans as a basic

right. For instance, in B. K. Parthasarthi v. Government of Andhra Pradesh6, the Andhra

Pradesh High Court upheld “the right of reproductive autonomy” of an individual as a facet

of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T.

2 Defined by Supreme court of India in the Baby Manji Yamada Vs. Union of India & ANR. [2008] INSC 1656 (29 September 2008) case

3 Defined surrogacy by the Draft Bill on The Assisted Reproductive Technologies (Regulation) – 2010, available at-

http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf 4 Supreme court of India in the Baby Manji Yamada Vs. Union of India & ANR. [2008] INSC 1656 (29 September 2008) case

5 228th Report of the Law Commission of India

6 AIR 2000 A. P. 156

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Skinner v. State of Oklahoma7, which characterised the right to reproduce as “one of the

basic civil rights of man”. Even in Javed v. State of Haryana8, though the Supreme Court

upheld the two living children norm to debar a person from contesting a Panchayati Raj

election it refrained from stating that the right to procreation is not a basic human right. Now,

if reproductive right gets constitutional protection, surrogacy which allows an infertile couple

to exercise that right also gets the same constitutional protection. However, jurisdictions in

various countries have held different views regarding the legalization of surrogacy.

III. Surrogacy laws

The laws governing surrogacy agreements vary from state to state. State laws sometimes

depend on the type of surrogacy agreement. Many countries of Europe realized the dangers

of surrogacy agreements and, in pursuit of the best interest of the child, enacted legislation to

ban or strictly regulate surrogacy. Germany, Austria, France, Switzerland, Sweden, Norway,

Italy and Bulgaria completely prohibit all surrogacy agreements. Surrogacy agreements are

against public policy in those countries. One of the chief reasons is that surrogacy

commodifies the human body. With surrogacy the child becomes the mere object of a legal

transaction, while the surrogate mother is used, effectively, as an incubator. Such

commodification in itself violates the dignity of both the surrogate mother and the child9. On

the other hand, the United Kingdom has differentiated between commercial and altruistic

surrogacy agreements and banned all commercial agreements. The reason for the prohibition

against commercial surrogacy contracts is that in commercial agreements, the child is treated

as a commodity that can only the wealthy can afford. All the countries of Europe should

implement restrictions and regulations on surrogacy agreements to promote the best interest

of the child. In the famous Baby M case10

, the New Jersey Supreme Court, though allowed

custody to commissioning parents in the “best interest of the child”, came to the conclusion

that surrogacy contract is against public policy.

7 316 US 535

8 (2003) 8 SCC 369

9 The Iona Institute the Ethical case against Surrogate Motherhood: What we can learn from the law of other European Countries,

http://www.ionainstitute.ie/ 10

537 A.2d 1227

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A. Surrogacy in India

Surrogacy in India is legitimate because no Indian law prohibits surrogacy. To determine

the legality of surrogacy agreements, the Indian Contract Act would apply and thereafter the

enforceability of any such agreement would be within the domain of section 9 of the Code of

Civil Procedure (CPC). Alternatively, the biological parent/s can also move an application

under the Guardians and Wards Act 1890 for seeking an order of appointment or a

declaration as the guardian of the surrogate child. It is also well known that surrogacy in

commercial form is legal in India with the landmark Supreme Court judgment and later, the

Indian Council of Medical Research (ICMR) Guidelines 2005 which prescribed conduct and

use of ART procedures or treatment by fertility clinics. Subsequent to this the ART

(Regulation) Bill 2010 was formulated by the Union Ministry of Health & Family Welfare,

which is still awaiting enforcement.

B. Assisted Reproductive Technologies (Regulation) Bill, 2010

The ART Bill legalised commercial surrogacy by providing for payment as “monetary

compensation” to the surrogate mother by the intending couple. In addition to these, there is

Law Commission Report No. 228 of the year 2009 which recommended legalising altruistic

or non-commercial surrogacy arrangements in India in order to protect the surrogate mother

from exploitation, as opposed to the ART Bill. Despite a series of legal instruments seeking

to regulate surrogacy, it is evident that the legal position in India on the issue, besides being

inadequate, is also inconsistent and ambiguous, therefore it needs clarity. However,

considering the growing number of Surrogacy cases in India and the challenges that the

Surrogacy would face in the future, the Government of India decided to come up with a law

which would govern the Surrogacy and ART in India. A committee of experts was set up and

the said committee has now submitted a draft of the proposed bill to the Government of India.

The said bill is still pending with the government and has not yet been presented in the

Parliament. The proposed draft has taken into consideration various aspects of Surrogacy and

has built in safe guards for both IP’S and Surrogate mothers.

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Some of the features of the proposed bill are as under:

a) Constitution of an authority at National level and State level to register and regulate

the IVF clinics and ART canters.

b) Creation of a forum to file complaints for grievances against clinics and ART

centres’. And imposing duties and responsibilities on the clinics and ART centers.

c) Regulations for sourcing, storage, handling, record keeping of Gametes, Embryos and

other human reproductive materials. And placing rights and duties on Surrogate and

IP's.

d) Imposing stringent penalties for breach of the duties and regulations under the Act.

The above features are dynamic in nature and will go a long way in making the entire

surrogacy procedure transparent and fair. The chances of any exploitation of the intended

parents and surrogate will be eliminated all together. The Bill also has incorporated several

landmark stipulations. For instance, no surrogate mother shall undergo embryo transfer more

than three times for the same couple. If a surrogate mother is married, the consent of her

spouse is mandatory. Only Indian citizens can be considered for surrogacy. No ART bank or

clinic can send an Indian citizen for surrogacy abroad. Strict confidentiality has to be

maintained about the donor's identity. And a woman acting as surrogate mother in India

cannot be less than 21 or over 35 years. Also, she cannot give more than five live births,

including her own children.

As per Law Commission report11

the draft Bill prepared by the ICMR is full of lacunae,

nay, it is incomplete. However, it is a beacon to move forward in the direction of preparing

legislation to regulate not only ART clinics but rights and obligations of all the parties to a

surrogacy including rights of the surrogate child. It is inconsistent with human dignity that a

woman should use her uterus for financial profit and treat it as an incubator for someone

else’s child12

. These words of the Warnock Committee reporting to the British Government in

1984 remain unanswerable even today. The proposed Bill, however, legalises not only

surrogacy per se but even commercial surrogacy or surrogacy “for monetary compensation”

or “on mutually agreed financial terms”.

11

228th Report of the Law Commission of India, August 2009 12

Comment by Dr Anju Huria, Gynaecologist, Chandigarh, Repugnant to human dignity

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It has been biologically established that at the very moment of the fusion of a sperm and

an ovum, the zygote which comes into being, is a human person, in the fullest sense of the

word, and therefore demanding the respect due to a human person. This is not just a

philosophical question which is open to a diversity of opinions. It is an ontological fact

confirmed by science. To treat the zygote, the embryo or the foetus as a commodity,

therefore, is to do grave violence to the dignity of the human person. How can a human

individual not be a human person? The underlying assumption of the ART Bill, that a zygote

or an embryo or a foetus can be manipulated according to the whims and fancies of the

technologists is, fundamentally wrong and ethically abhorrent. It follows, logically, that the

entire organizational structure envisaged by the ART Bill is immoral and in violation of

Human Rights.

C. The Indian Council of Medical Research Guidelines 2005

The Indian Council of Medical Research, New Delhi in collaboration with National

Academy of Medical Sciences, New Delhi had constituted a Committee of Experts from

different disciplines i.e. gynaecologists, biologists representatives from

legal/social/professional bodies, representatives from various ART clinics from different

parts of the country, to formulate the "National Guidelines for accreditation, supervision and

regulation of ART clinics in India". The Code of Practice described in the draft guidelines

deals with all those areas, which affect the doctors, scientists and patients.

Salient features of the draft are as follows:

a) The ART Clinic must not be a party to any commercial element in donor programmes

or in gestational surrogacy.

b) No ART procedure shall be done without the spouse’s consent. And sex selection at

any stage i.e. both before and after fertilization or abortion of embryos of any

particular sex should not be permitted except to avoid the risk of transmission of a

genetic abnormality assessed through genetic testing of biological parents or through

pre-implantation genetic diagnosis (PGD).

c) Use of sperm donated by a relative or a known friend of either the wife or the husband

should not be permitted. It will be the responsibility of the ART clinic to obtain sperm

from appropriate banks.

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d) The committee has recommended accepting semen only from Semen Bank and not

from the individual. Hence it has also been recommended that Semen Bank should be

an independent organization, if set up by an ART clinic it must operate as a separate

identity.

e) No relative or a person known to the couple may act as surrogate. And Surrogacy by

assisted conception should normally be considered only for patients for whom it

would be physically or medically impossible/undesirable to carry a baby to term.

f) The genetic (Biological) parents must adopt a child born through surrogacy. And after

a specific consent, the embryos may be stored for five years and stored embryos may

be used either for other couples or for research after taking the consent of the couple

to whom the embryos belongs.

IV. Ethical Issues of Surrogacy

In S. H. v. Austria13

, the Grand Chamber recently judged that the prohibition of

heterologous medically assisted reproduction techniques did not breach the right to private

and family life: the Convention does not guarantee a right to In Vitro Fertilisation (IVF) with

donated ova or sperm. The Court also stated that “the splitting of motherhood between a

genetic mother and the one carrying the child differs significantly from adoptive parent-child

relations and has added a new aspect to this issue”. It is obvious that surrogacy adds even

more complexity to the situation. Announcing the verdict14

, the division bench comprising

Chief Justice K S Radhakrishnan and Justice A S Dave observed, " lot of legal, moral and

ethical issues arise for our consideration in this case, which have no precedents in this

country." In this landmark judgment, the Gujarat High Court conferred Indian citizenship on

two twin babies fathered through surrogacy by a German national in Anand district. The

court directed the authorities to give them Indian passports. Also, the court emphasised the

need for 'a comprehensive legislation' dealing with all the issues and situations being created

by the latest reproductive science and technology15

.

Surrogacy implies psychological detachment on the part of the gestational mothers. She

must not attach to her child. Detachment impacts both the woman and the child. More and

more medical and psychological studies highlight the importance of the links created during

pregnancy between the mother and the child, and their importance for the child’s

13

7 S. H. v. Austria, [GC], 3 November 2011, Ap. 57813/00, § 105 14

In Jan Balaz v Union of India, From L.P.A. No. 2151 of 2009, High Court of Gujara 15

ibid

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development. Long-term consequences on the child can be inferred from those on children

relinquished for adoption or born after an In Vitro Fertilization with donor, since surrogacy

combines aspects of both situations, and adds more complexity. Splitting the role of mother

between different women in this way (egg donor, commissioning woman, and birth mother),

and the role of father (sperm donor and the commissioning man) also violates the child’s

right to know his or her origin and identity, as guaranteed in Articles 7 and 8 of the

Convention on the Rights of the Child. Moreover, such concurring claims can give rise to

litigation. In addition to difficulties regarding the establishment of filiations and nationality of

the child, problems may arise in numerous situations: if the surrogate mother’s health or life

are threatened during pregnancy, if the surrogate mother changes her mind and wants to keep

the child, if the commissioning parents part during pregnancy and do not want the child any

longer, if the child is born with a disability and neither the surrogate mother nor the

commissioning parents want him or her… If a disability is detected during pregnancy, can the

surrogate mother be obliged to abort? Some agencies require that they accept in advance to

abort if asked to.

In surrogacy, the woman rents her body. This should at a minimum alert us to the very

strong possibility that surrogacy is a new form of exploitation and trafficking in women. In

surrogacy, the child is treated as a commodity, the object of a legal agreement. The aim of

surrogacy is to fulfil the desire of adults, to enable foreign parents to satisfy their wish for a

child at any price. Commercial surrogacy arrangements raise concerns of forced surrogacy

and manipulation. Given the newness of reproductive technologies, the intersection between

human trafficking and surrogacy has largely been overlooked. Women’s bodies are sold

internally and on the global marketplace for sex trafficking, and it seems inevitable that

organized crime will shift into the surrogacy market and sales of women’s reproductive

capacity.

In India, which is at the forefront of the global surrogacy market, has raised concerns

regarding the ethics of surrogacy because it is highly unregulated and open to exploitive

situations. For example, most surrogates are generally poor, illiterate, and are recruited from

rural villages. Surrogacy recruits are generally kept in clinics where they are monitored

around the clock. There are other concerns, such as, renting of Indian women’s bodies by

westerners, the lack of counselling services available to surrogates after the relinquishment of

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their gestational babies, and the use of mandated and scheduled C-sections by clinics, which

allows for quick deliveries.

Some of the ethical and legal issues that have been raised with regards to surrogacy include;

a) Should the state be able to force a woman to carry out "specific performance" of her

contract if that requires her to give birth to an embryo she would like to abort, or to

abort an embryo she would like to carry to term?

b) Is it possible to socially or legally conceive of multiple modes of motherhood and/or

the recognition of multiple mothers?

c) Should a child born via surrogacy have the right to know the identity of any/all of the

people involved in that child's conception and delivery?

d) To what extent should we be concerned about exploitation, commodification, and/or

coercion when women are paid to be pregnant and deliver babies, especially in cases

where there are large wealth and power differentials between intended parents and

surrogates?

e) What does motherhood mean? And what is the relationship between genetic

motherhood, gestational motherhood, and social motherhood?

f) To what extent is it right for society to permit women to make contracts about the use

of their bodies? And to what extent is it a woman's human right to make contracts

regarding the use of her body?

g) Is contracting for surrogacy more like contracting for employment/labor, or more like

contracting for prostitution, or more like contracting for slavery?

The above legal and ethical issues are unanswered in any legal document. And to treat the

production of babies as a purely chemical process is the ultimate fallacy of the proposed

legislation. It violates the fundamental law of nature which requires that human babies be

produced as the result of an intimate exchange of love between a man and a woman who have

solemnly pledged to give themselves to each other and to accept the gift of life which results

from their physical, emotional and spiritual union. Nature has prescribed the biological and

moral boundaries within which procreation should take place.

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V. Conclusion

Technology is good only as long as it conforms to morality. Humankind has already

witnessed the many tragedies which have resulted from the disregard of moral precepts which

should determine our individual behaviour and our social programmes. The ethical concerns

raised by surrogacy include the surrogate woman’s rights over her body, the preservation of

human dignity, the possible exploitation of indigent surrogates and gamete donors, and the

commodification of children. Surrogacy proponents argue that surrogacy is a mutually

beneficial arrangement: surrogates will realize a rare economic opportunity and the intended

parents will have a child they otherwise could not have. Proponents further argue that

restricting or prohibiting surrogacy is an infringement upon reproductive and contractual

freedom. While the ethical debate over the legalization of surrogacy cannot be ignored. Both in

India and around the globe have started to weigh in on the ethical issues raised by

commercial surrogacy and fertility tourism. The September 2008 ruling of the Supreme Court

regarding Baby Manji was the first national court decision regarding commercial surrogacy

and surrogacy tourism in India. However at present Legal scholars, NGOs and advocacy

groups16

in India have begun to provide expanded analysis of the cases and the broader

concerns on these issues.

16

See, for example, Malhotra , Anil, and Ranjit Malhotra. “Commercial Surrogacy in India—Bane or Boon?” Law Gazette (March 2009).

Law Society of Singapore. http://www.lawgazette.com.sg/2009-3/regnews.htm

http://www.lawgazette.com.sg/2009-3/regnews.htm

Documents

LEGAL AND ETHICAL ISSUES OF SURROGACY WITH … T.M.pdf · LEGAL AND ETHICAL ISSUES OF SURROGACY WITH SPECIAL REFERENCE TO ... the legality of surrogacy agreements, the Indian Contract