The Morality of Surrogacy with Legal and Social Implications of Commercial Ban

I. Introduction

There Ten to fifteen percent of married couples are unable to have children. Surrogate mothers are not a new solution to the old problem of not being able to reproduce an offspring. Surrogacy has been around a long time and dates back to biblical times. An interesting bible scenario is Sarah, the wife of Abraham. Sarah could not have children in the beginning. She gave her handmaid, Hagar, to her husband Abraham to produce them a child. The method used was copulation. The outcome in this arrangement did not prove to be a productive one and ended in disaster. In this scenario the spouse became jealous, the surrogate became proud and refused to give up the identity of the child and consequently the spouse had both her and her child ousted.

Surrogacy is a method of assisted reproduction whereby a woman agrees to become pregnant for giving birth to a child for others to raise. She may be the child's genetic mother (the more traditional form of surrogacy) or she may be implanted with an unrelated embryo. Having another woman bear a child for a couple to raises usually with the male half of the couple as the genetic father is referred to in antiquity. In some cases, surrogacy is the only available option for parents who wish to have a child that is biologically related to them. The word "surrogate," is rooted in Latin "Subrogare" (to substitute), which means "appointed to act in the place of." Altruistic surrogacy is where a surrogate mother agrees to gestate a child for intended parents without being compensated monetarily in any way. In other words, this is in effect a free surrogacy. Whereas, commercial surrogacy is an option in which intending parent offers a financial incentive to secure a willing surrogate. Commercial surrogacy is a controversial method of conception because people, governments and religious groups have questioned the ethics of involving money in a child's birth.

There can be several reasons behind surrogate pregnancy. For instance, intended parents may arrange a surrogate pregnancy because a woman who intends to be parent is infertile or unable to carry a pregnancy to term, e.g., woman with hysterectomy, uterine malformation or with a history of recurrent abortions or any medical illness making her pregnancy a risk to her own health.

A female intending to be a parent may also be fertile and healthy, but unwilling to undergo pregnancy. The agencies making arrangement for surrogacy for the intended parents often help them to manage the complex medical and legal aspects involved in Process.

In a revised manner

Surrogacy refers to a contract in which a woman carries a pregnancy “for” another couple. Number of infertile couples from all over the World approach India where commercial surrogacy is legal. Although this arrangement appears to be beneficial for all parties concerned, there are certain delicate issues which need to be addressed through carefully framed laws in order to protect the rights of the surrogate mother and the intended parents

Need for surrogacy

For many people, having a child is the ultimate dream. Sharing their love and raising a family can truly make their lifetime picture complete. Unfortunately, though, for some, the inability to have children can be extremely heartbreaking and devastating to their future plans.

The good news is that by using the services of a surrogate mother, these couples and individuals can still have the children that they desire, oftentimes with gene characteristics from one or both parents.

The ever-rising prevalence of infertility world over has lead to advancement of assisted reproductive techniques (ART). Herein, surrogacy comes as an alternative when the infertile woman or couple is not able to reproduce. Surrogacy is an arrangement where a surrogate mother bears and delivers a child for another couple or person. In gestational surrogacy, an embryo, which is fertilized by in vitro fertilization, is implanted into the uterus of the surrogate mother who carries and delivers the baby. In traditional surrogacy, the surrogate mother is impregnated with the sperms of the intended father artificially, thus making her both genetic and gestational mother. Surrogacy may be commercial or altruistic, depending upon whether the surrogate receives financial reward for her pregnancy.

Commercial surrogacy is legal in India, Ukraine, and California while it is illegal in England, many states of United States, and in Australia, which recognize only altruistic surrogacy. In contrast, countries like Germany, Sweden, Norway, and Italy do not recognize any surrogacy agreements. India has become a favorite destination of fertility tourism. Each year, couples from abroad are attracted to India by so-called surrogacy agencies because cost of the whole procedure in India is as less as one third of what it is in United States and United Kingdom (10-20 lakhs).

Legality of surrogacy

Laws differ widely from one country to another. In England, commercial surrogacy arrangements are not legal and are prohibited by the surrogacy arrangement act 1985. A surrogate mother still maintains the legal right for the child, even if they are genetically

unrelated. Unless a parental order or adoption order is made the surrogate mother remains the legal mother of the child.

Status of surrogacy in USA

In USA, the surrogacy and its attendant's legal issues fall under state jurisdiction and it differs from state to state. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them and some penalize commercial surrogacy. In Canada, the Assisted Human Reproduction Act permits only altruistic surrogacy; surrogate mothers may be reimbursed forapproved expenses, but payment of any other consideration or fee is illegal.

Status of surrogacy in Australia

In Australia, all states (except Tasmania, which bans all surrogacy under the surrogacy Contracts Act 1993) altruistic surrogacy has been recognized as legal. However, in all states arranging commercial surrogacy is a criminal offense.

Status of surrogacy in South Africa

The South Africa Children's Act of 2005 enabled the "commissioning parents" and the surrogate to have their surrogacy agreement validated by the High Court even before fertilization. This allows the commissioning parents to be recognized as legal parents from the outset of the process and helps prevent uncertainty.

Status of surrogacy in Asian Countries

In Japan, the Science Council of Japan proposed a ban on surrogacy and doctors, agents and clients will be punished for commercial surrogacy arrangements. In Saudi, Arabia religious authorities do not allow the use of surrogate mothers.

In China, Ministry of Health banned surrogacy in 2001. Despite this regulation it is reported that illegal surrogacy "black market" is still flourishing in China. Anxious about such situation strict legislation has been suggested by the political parties.

Legal Aspects of Surrogacy in Europe

In Sweden, surrogacy is not clearly regulated. The legal procedure most equivalent to it is making an adoption of the child from the surrogate mother. It is illegal for Swedish fertility clinics to make surrogate arrangements. Ukraine: Surrogacy is completely legal in Ukraine. Only married couples can legally go through gestational surrogacy in Ukraine.

Russia: In Russia, commercial gestational surrogacy is legal and available for willing adults. There has to be a certain medical indication for surrogacy. Foreigners have the same rights as for assisted reproduction as Russian citizens.

Bulgaria: Surrogacy was previously illegal in Bulgaria, but as the procedure is still practiced illegally, the government decided to sanction it. Instead of using the term surrogate, though, Bulgaria calls it the "substitute mother."

Georgia: Surrogacy in Georgia Europe is legal but there surrogate mother cannot exercise any parental rights over the child.

Some countries such as Poland and Romania among others have no defined surrogacy laws and while it's still possible to undergo the surrogacy process in those nations. As it can be seen, laws on surrogacy in Europe are varied and for some countries, vague and nonexistent.

II. Surrogacy in India

India has developed itself into a country with world-class medical facilities, with prices far lower than most developed countries. Medical tourism is accepted as a crucial form of tourism in India, with many major hospitals in the country even providing sightseeing trips around the country as part of the “Indian experience.” However, the proliferation of the industry has exposed a few darker spots as well. One such issue is the thriving institution of fertility tourism in India, popularly called “commercial surrogacy.”

In surrogacy, a woman carries a child to term for its intended parents via different fertility techniques, including IVF implantation. She is compensated for carrying the child, hence the term commercial surrogacy.

Growth of Commercial Surrogacy in India

Commercial gestational surrogacy, in which a woman is paid to have a baby to whom she has no genetic link, is a growing trend in some countries such as Mexico and India. In most of the countries world over, the woman giving birth to a child is considered as the child’s legal mother. However, in very few countries, the intended Parents are recognized as the legal parents from birth by the virtue of the fact that the surrogate has contracted to give the birth of the Child for the commissioned Parents.

Why is India Preferred for Surrogacy?

After the first surrogate delivery in India in June 1994, India has steadily emerged as an international destination for commercial surrogacy. A 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 India.

Commercial surrogacy became legal in India in 2002. Relatively inexpensive medical facilities, know-how in reproductive technology, and the availability of women, largely from poor socio-economic situations and who are willing to take up the task, have aided the growth of surrogacy in India. The cost of the procedure in India is roughly a third of the price being charged in the UK and only around a fifth of what it costs in the United States.

Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates.

Moreover, the legal environment here is favourable. In fact, there is no law as such to govern surrogacy in India with the Artificial Reproductive Technique (ART) Bill, 2013, still pending with Parliament. The agreement between the parties decides on the legal fate of the procedure.

The draft Surrogate (Regulation) Bill seeks to comprehensively address the issue of surrogacy in India. While there are provisions that will definitely evolve with time, the heart of the bill is undoubtedly banning commercial surrogacy. This is indeed a step in the right direction. Profiting commercially from a woman’s womb by exploiting her helplessness is a terrible crime. An evolved society is one that seeks to protect the right of all. A poor woman is undoubtedly among the most voiceless of India’s citizens, and the draft Surrogacy Bill 2016 seeks to protect her.

III. Implication of surrogacy: socio-economic and legal

Establishing paternity may be easy enough with one quick genetic test, but the issue is not simple and easy for the courts. What will happen if a non-custodial father has been the "father" to a child for 15 years only to learn that he is not the biological father? Does he get a refund on the child support he is paid? Or if a surrogate mother breaks her contract, can she go after the husband and wife clients for monetary support for the resulting child? These are tough legal questions for judges and policymakers.

The Indian system only recognizes the birth mother. There is no concept of DNA testing for establishing paternity as far as the Indian legal system is concerned, i.e., the name on the child's birth certificate has to be that of the birth mother and her husband. In 2008 the Supreme Court of India in the Manji's case (Japanese Baby) has held that commercial surrogacy is permitted in India and it has again increased the international confidence in going for surrogacy in India.

The law commission of India has submitted the 228^th Report on "Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligation of Parties to an surrogacy."

The main observations had been made by the law commission are as: Surrogacy arrangements will continue to be governed by contracts amongst parties, but such an arrangement should not be for commercial purposes. A surrogacy arrangement should provide for the financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother. Legislation itself should recognize surrogate child to be legitimate child. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only. Right to privacy of donor as well as surrogate mother should be protected. Sex selective surrogacy should be prohibited. Cases of abortion should be governed by Medical Termination of Pregnancy act 1971 only.

According to Kimbrell (1988) most women who get involved as surrogates do so because they are in need of money. The surrogate mothers are often unaware of their legal rights and due to their financial situation they cannot afford the services of lawyers.

Horsburgh (1993) believes surrogates are physically exploited once they have signed contracts agreeing to give birth to babies for clients. To make matters worse, if the pregnancy is indeed aborted, the surrogates often receive just a fraction of the original payment. The contracts can also place liability on the mother for risks including pregnancy-induced diseases, death and post-partum complications

Foster (1987) states that many surrogate mothers face emotional problems after having to relinquish the child. However, a study by Jadva et al. (2003) showed that surrogate mothers do not appear to experience psychological problems as a result of the surrogacy arrangements. Although it is acknowledged that some women experience emotional problems in handing over the baby or as a result of the reactions around them, these feelings appeared to lessen during the weeks following the birth

1. Socio-Economic Implications

In many families when a child is born out of surrogacy, not even immediate blood relatives of the couples get to know due to social out raciation. However, the proposed bill will make the identity of the surrogate mother open not only to the family, but to others as well.

The poor and the vulnerable women are being exploited in the name of surrogacy and paid a very small amount for renting out their womb

In a live example recorded by a research scholar a couple from abroad came and got heir baby after the mother delivered the child. Unfortunately the mother died during delivery but the couple refused to pay the compensation because they said they had a contract with the dead mother the woman became a Surrogate mother to back her children financially and safeguard their future.

The poor surrogate mothers in Gujarat, who rent their wombs to augment the family income, have been confronted with the horrors of a pitiable payment and broken homes.

The Centre for Social Research, an NGO, revealed after talking to nearly 100 surrogate mothers and 50 commissioning parents in Anand, Surat and Jamnagar in Gujarat, that surrogacy has not gone down well with their husbands and children.

"We found some disturbing trends. For instance, though the husbands do not mind their wives to act as surrogate mothers, the spouse and her children distance themselves from her after she returns home following the birth of the baby," CSR director Dr Ranjana Kumari said.

In Anand, around 52 per cent of the surrogate mothers said they were abandoned by their husbands and that most of them had to fend for themselves and their children.

Around 14 per cent women in Surat and 20 per cent in Jamnagar said their relationship with their husbands soured. Many surrogate mothers - 100 per cent in Jamnagar, 83 per cent in Surat and 40 per cent in Anand - revealed that they lost contact with friends and members of the family after opting for surrogacy.

Surrogacy had a bearing on family equations. Close to 77 per cent women in Anand, 86 per cent in Surat and 100 per cent in Jamnagar said it affected the way their households were run. For surrogate mothers, surrogacy has not gone down well with their husbands and children. Surrogate mothers said they suffered on account of the secrecy involved in the entire process. Around 82 per cent of them in Anand, 89 per cent in Surat and all in Jamnagar said the secrecy involved in the entire process of surrogacy made them vulnerable to suspicions.

"Apart from being denied the promised amount, they are often paid in installments. Since most of them are illiterate, they lose count after a few installments," Kumari said.

In 97 per cent cases in Surat and 100 per cent in Jamnagar, most of the surrogate mothers were approached or targeted by agents or touts who make a killing through commissions. It was also revealed that relationship between the surrogate mother and the commissioning parents remained harmonious in the beginning, but turned unpleasant towards the advanced stages of pregnancy because of hyper anticipation, monetary disagreements and other pretentious issues.

India has been a popular destination for surrogacy because of cheap medical facilities, advanced reproductive technological know-how and a hard-up population willing to make an extra buck to support their families. The horrors were not restricted to poor payment. "It was found that surrogate mothers were made to undergo in-vitro fertilisation sessions 20-25 times for a successful impregnation. Current guidelines strictly prohibit this," Kumari said. Apart from NRIs, couples from the US, Russia, the UK, Sweden, Israel and Australia come to India for the cheap surrogacy offered.

2. Legal Implications

Legality of surrogacy around the world there is a plethora of views regarding the issue of surrogate birth in various countries. It is rather a tumultuous point of law as there are only a handful of nations recognising it and there is also a lack of uniformity in the principles being followed in these nations with respect to the phenomenon of surrogate birth. The United Kingdom was the first country ever to enact surrogacy legislation. It passed the Surrogacy Arrangements Act in 1985 whose main aim was to abolish commercial surrogacy.8 Under the Human Fertilization and Embryology Act, 2000 the commissioning parents are given the status of legal parents provided he or she is genetically related to either of the commissioning parents. In 1986 surrogacy came to national attention with Baby M, In re9 where the Supreme Court of New Jersey cleared the issue of custody right in the case of motherhood and held that the surrogate mother who conceived the child via artificial insemination has visitation right only and the natural father was awarded custody of Baby M but the rights of adopted mother was denied. This decision prohibited further surrogacy arrangements in that State unless the surrogate mother volunteers, without any payment, to act as a surrogate.

It is required that a surrogate mother should have proven fertility (married with children) and receive her husband’s consent for surrogacy. IVF is preferred over IUI in order to preserve the anonymity of the donor mother and to ensure that the surrogate is not the child’s biological mother.

In-vitro fertilization is riskier, more intrusive and more complex than intra uterine insemination. As stated already, for IVF more than one egg is fertilized to enhance the chances of survival of the fetus. This may result in more than one embryo developing which has to be reduced in number. After delivery, there is no follow-up care of the surrogate mother.

Perhaps the most awful disadvantage is that surrogate mothers are not legally recognized as “workers” in India since they do not sell mental or manual labour in the traditional sense of the term. Consequently, they do not have any legal rights.

IV. The way forward

In 2015, there was a controversy with respect to surrogacy and it was hinted that foreigners would be banned from reaping the benefits of Indian surrogacy industry. However, experts in the field of surrogacy opine that this would push the entire business underground, rendering the surrogate mother more vulnerable. This is what happened in Thailand, which was a popular destination for fertility tourism. When surrogacy was banned suddenly, it left in limbo the fate of several surrogate mothers at various stages of pregnancy as well as the intending parents who were at a loss as to how to collect their babies. Ultimately, the entire industry was pushed underground.

The need of the hour is to regularize the surrogacy industry in India so that the surrogate mothers are recognized as workers with proper legal rights, minimum compensation levels and a major share of the profits earned which are pocketed by the surrogacy clinics / agents instead. After all, they are the ones who lend their wombs for nine months. Hence, it is imperative that their voice and opinions be incorporated in any Bill which deals with surrogacy in India. They should have complete information and agency to make their precarious choices so as to guard themselves against unseen circumstances which may develop. They need to be made aware of the medical risks involved and legal framework to fall back upon in case the pregnancy falters. Their post-partum health needs to be tracked and taken care of.

The Law Commission of India has submitted its 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY.” The report made the following observations-

(a) Surrogacy arrangement will continue to be governed by contract amongst parties, containing all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

(b) A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the couple and subsequent unwillingness of both to take delivery of the child.(c) One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.(d) Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.(e) The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

(f) Right to privacy of donor as well as surrogate mother should be protected.(g) Sex-selective surrogacy should be prohibited.

The law commission of India specifically reviewed the Surrogacy Law keeping in mind that India is an International Surrogacy destination. The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions, while strongly recommending against Commercial Surrogacy.

V. Recommendations

Informed Consent: Regulation is necessary to ensure meaningful informed consent of the surrogate mother, prior to any invasive procedures. This could be in the form of regulations stipulating that the surrogates be made aware of the risks involved in the IVF transfers, potential for forced abortion, likely C-sections, hormone therapy, and other risks and elements of the numerous procedures the surrogate will likely undergo over the course of her employment.

Regulation: There is no law to regulate how many times a surrogate mother can attempt an IVF transfer. As such, the surrogate might undergo this procedure numerous/unlimited times before a successful pregnancy. This is especially important because surrogates are often not paid any compensation during this period; surrogates may undergo this procedure multiple times and never see any money for their time, effort and service. Furthermore, none of potential risks of the procedure are being discussed with the surrogates before they participate.

Compensation: There should be a fixed price associated with hiring a surrogate mother. This would ensure that mothers are provided with fair compensation. Indian surrogates are compensated to a much lesser extent than their Western counterparts. For example, the money they are currently receiving is not enough for a house, no single house in Anand sells for less than Rs. 7 lakhs. The money earned is merely enough for the women to fix the roof of their house before monsoon season.

Public Debate: It is suggested a public debate between civil society organizations and doctors regarding future regulation of the industry, so as to ensure that future regulation takes into consideration a variety of different perspectives. For example, gestational surrogacy involving IVF is an extremely profitable procedure for doctors in India, and the medical community may be motivated to advocate for a gestational surrogacy-based industry. As such, regulations based exclusively on the perspective of these doctors would likely be biased in favour of this type of more invasive treatment. As a result, the debate surrounding the legality of various procedures should involve a variety of different perspectives, including health activists from different communities and former surrogate mothers. These suggestions for reform make up on a small percentage of those posed by this research paper in the full length.

VI. Conclusion

In India, surrogacy is purely a contractual understanding between the parties so care has to be taken while drafting agreement so that it does not violate any of the laws like, e.g., points to be taken into consideration why does the intended parents opt for surrogacy, particulars of the surrogate, type of surrogacy, mentioning about paternity in the agreement, the creation of registry for biological father of children in an adoption cases, rules set forth on how and when genetic testing can be done to determine paternity, compensation clause, unexpected mishappening to the surrogate mother, child's custody, regarding the jurisdiction for the disputes arising out of agreement.

It seems ironical that people are engaging in the practice of surrogacy when nearly 12 million Indian children are orphans. Adoption of a child in India is a complicated and a lengthy procedure for those childless couples who want to give a home to these children. Even 60 years of Independence have not given a comprehensive adoption law applicable to all its citizens, irrespective of the religion or the country they live in as Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) or Overseas Citizens of India (OCIs). As a result, they resort to the options of IVF or surrogacy. The Guardian and Wards Act, 1890 permits Guardianship and not adoption. The Hindu Adoption and Maintenance Act, 1956 does not permit non-Hindus to adopt a Hindu child, and requirements of immigration after adoption have further hurdles.

There is a strong need to modify and make the adoption procedure simple for all. This will bring down the rates of surrogacy. Altruistic and not commercial surrogacy should be promoted. Laws should be framed and implemented to cover the grey areas and to protect the rights of women and children.

Indian government has drafted legislation in 2008 and finally framed an ART regulation draft bill 2010. The bill is still pending and not presented in the parliament. The proposed law needs proper discussion and debate in the context of legal, social and medical aspects. We conclude that the government must seriously consider enacting a law to regulate surrogacy in India in order to protect and guide couples seeking such options. Without a foolproof legal framework implementation couples will invariably be misled and the surrogates exploited.

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Footnotes

1. Author is an Advocate at India.