Surrogacy Arrangements: Comparative Dimensions and Prospective Analysis of the Law in India By: Ashish Chug and Satarupa Chakravortty Ref: surrogacy.com Introduction In the past 2 decades, there has been a spectacular change in the field of reproductive technologies. Reproductive sciences have come in with techniques like donor insemination, in vitro fertilization and embryo transfer methods which have completely revolutionized the reproductive environment. These techniques have infused hope into many infertile couples, who long to have a child of their own. Unfortunately, complications have arisen once these methods were combined with surrogacy arrangements. Basic Concepts Before one explores the conflict zones of surrogacy arrangements, it is necessary to understand certain concepts. Meanings Surrogacy is the practice by which a woman bears a child for another with the intention of handing over the child to the commissioning parents, once born. The surrogate mother is the one who gestates the child. The genetic mother is the one who donates her ovum. The Commissioning parents are the ones who receive the child from the surrogate after the birth of the child. Methods of Surrogacy There are two methods of surrogacy arrangements. 1. Partial Surrogacy: This is when the child harvested by the surrogate, shares the genetic makeup of the surrogate mother and that of the commissioning father. The Commissioning mother has no role to play in such arrangements. 2. Total surrogacy: In this case an embryo is created by the IVF method. It is done by combining the gametes of both the Commissioning parents. This is then implanted into the uterus of the surrogate mother who carries the child to term. Therefore the child has the genetic combination of the commissioning parents. Types of Surrogacy arrangements There are two types of surrogacy arrangements. 1. Commercial surrogacy arrangements: This is when the surrogate is paid over and above the necessary medical expenses. 2. Altruistic surrogacy arrangements: This is when the surrogate is paid only the necessary pregnancy related expenses and at times nothing at all. Dilemma of Parenthood Unexpectedly, with the oncoming of surrogacy agreements, concepts of fatherhood and motherhood became subject to much controversy. Motherhood was never under much scrutiny as it was rightly thought that childbirth was the natural and conclusive fact establishing it. Paternity was a more controversial concept burdening legislators to provide for suitable tests. Little did anyone envisage, that a century later medical sciences would compartmentalize motherhood into the genetic, gestational and the social mother leading to a clash of interests, coincident in three women. The numbing factor is that all can simultaneously prove to be mothers of the unborn child. Fragmenting Motherhood Initially, the biological and the social aspect of motherhood were identifiable in one person. Now motherhood can be distinctly fragmented into three parts viz. the genetic mother who contributes her ova for the embryo, the surrogate mother who bears the child and the social mother who nurtures the child. Countries like United Kingdom and Australia have simplified this problem by lawfully declaring the surrogate to be the legal mother whereas India and certain states of the United States of America have held the commissioning mother to be the legal mother of the child. Legislative Developments No surprisingly surrogacy agreements have posed a series of social, ethical and legal issues, which needs to be carefully evaluated. This evaluation must be read in the backdrop of the conservative attitude of the people on this issue. While countries like U.K., Australia, and the U.S.A. have taken efforts to legislate in this regard, in India, the medical fraternity too has been trying hard to lobby for the formalization of National Guidelines governing such arrangements. Although this is met with staunch opposition where experts from varied fields, have unflatteringly compared it to "womb-leasing" and "baby-selling", it is important to remember that if forbidden, it indirectly encourages clandestine growth of such practices. Therefore it is prudent to have legislation regulating this activity. The legislative developments of the above mentioned nations are as follows: United Kingdom Surrogacy is governed by the Surrogacy Arrangements Act, 1985. Very close to its heels came the Human Fertilisation and Embryology Technology Act, 1990. This Act conclusively dealt with certain provisions left ambiguous in the preceding Act. Therefore both these Acts jointly regulate surrogacy agreements. Along with the above mentioned Acts there is the Warnock Committee. It was constituted in 1982. The Committee critically examined the positive and negative aspects of reproductive advancements in relation to surrogacy arrangements. Australia The country is divided into 5 provinces viz. Victoria, South Australia, Australian Capital Territory, Queensland and Tasmania. Each has introduced its own legislation to regulate such practices. USA There is no national legislation regulating surrogacy arrangements. Each state is free to have its own legal perspective in this regard. Regrettably, some States have sternly disapproved such arrangements while others] have made laws governing it. Among these progressive states, some have even permitted the courts to adjudge this complex issue. India Under the supervision of the Indian Council for Medical Research, National Guidelines have been drafted for the accreditation and regulation of specific medical clinics. It has been thought that these clinics are to assist in the implementation of the latest reproductive technologies. The draft National Guidelines have been prepared by an expert committee consisting of distinguished professionals, scientists and educationalists from relevant spheres of study. At present, the National Guidelines have been released by the Secretary of Ministry of Health and Family Welfare, for public debate. Although these are draft rules, devoid of statutory force, but it shall have the necessary legal validity once approved in Parliament. Complex Issues Surrogacy arrangements have disrupted the traditional methods of procreation. This has led to the reconsideration of serious moral, ethical and legal issues. Some of them which must be taken into account are:- 1. What are Commercial and Altruistic Surrogacy arrangements? Whether they can be distinguished from one another and why are altruistic arrangements more encouraged than commercial arrangements? 2. To whom should the parental rights be conferred once the child is born? 3. Whether surrogacy agreements have the propensity to exploit women having weaker bargaining power? 4. Whether the welfare of the child is of paramount importance in surrogacy agreements? 5. Should surrogacy arrangements be enforceable in the Courts of Law in various nations? 6. Should surrogacy arrangements be regulated under law? Each issue has been separately discussed in the light of the existing law in the countries of U.K., Australia, U.S. and India. Question 1 What are Commercial and Altruistic Surrogacy arrangements ? Whether they can be distinguished from one another and why are altruistic arrangements encouraged more than commercial arrangements? Surrogacy arrangements are of two types, commercial and altruistic. Almost no legislation has attempted to define the two. Generally, commercial surrogacy arrangements are those involving payments made to surrogate which are over and above the necessary medical expenses. This is common when the surrogate is unknown to the commissioning couple. Altruistic arrangements are associated with no or only minimum payments for the necessary medical expenses. This is more commonly arranged between close relatives and friends of the commissioning parents. The task of clearly differentiating the two arrangements has always been troublesome. The manner in which the four countries have confronted the problem is as follows: - United Kingdom The 1985 Act was hastily legislated after the much publicized Baby-Cotton case (1985 FLR 846). Nowhere has it defined the two types of surrogacy arrangements. The Act only prohibits commercial surrogacy arrangements and outlaws advertising in this regard. Therefore, one implies that it indirectly allows altruistic surrogacy arrangements. The Act does not prohibit payments made to the surrogate. In fact, it allows the surrogate to receive reimbursement for genuine medical and pregnancy related expenses. Surprisingly, if extra payment is made to her, no criminal offence is made out as per the 1985 Act. Unfortunately, in reality Section 30 of the Human Fertilisation and Embryology Act, 1990 acts as a disincentive, as it may hinder the commissioning parents from obtaining a parental order if payments exceed the amount of genuine expenses. The practice of paying money in exchange of adoption is also not encouraged by Section 57 of the Adoption Act of 1976. To prevent commercialization in this regard, the Warnock Committee has suggested the introduction of new provisions defining the term payments. As rightly pointed out by them, without this, differentiating commercial from altruistic arrangements becomes difficult. The Committee has been endeavouring to put a ceiling to the maximum lawful amount that can be paid to the surrogate for her services. It has altogether suggested the formulation of a new Surrogacy Act which would extensively deal with this issue. Australia Each of the five provinces has introduced their own legislation to regulate surrogacy arrangements. One shall deal with each province separately:- Victoria The Surrogacy Act in Victoria leaves both expressions undefined. It distinguishes the two, only by penalizing various forms of commercial arrangements. Although it may apparently seem that the law approves of altruistic agreements but when read with other legislations, it is made clear that such practices are discouraged. As far as matters of payment are concerned, a strict reading of Section 30(2) of the Act, makes it seem as though refunds for necessary medical expenses will amount to illegal consideration. Thankfully, on a more lenient interpretation (as suggested by the Waller Report) reimbursement of such indispensable expenses have not been labelled as unlawful payments. Australian Capital Territory Section 3 of the Act defines only a commercial substitute parent agreement. It criminalizes only those entering into a commercial agreement, leaving altruistic arrangements without any penalty. Moreover, punishment provided for advertising these facilities on a commercial level is far harsher than for non-commercial purposes. Therefore the underlying message is that although altruistic arrangements are not explicitly barred, it is definitely not appreciated. Other domestic legislations make this amply clear. South Australia The Act distinguishes the two only by making commercial arrangements an offence and not altruistic arrangements. Similar to other provinces, parties to an altruistic agreement face impediments to a successful completion of a surrogacy contract. Queensland The legislation explicitly does not distinguish the two. The only difference is that Section 3(1)(b) of the Surrogacy Act has to be read in addition to the provision governing commercial agreements. No such joint construction exists for altruistic arrangements. The task of discerning the two types of arrangements has been left to the judiciary. Tasmania No distinction is made between the two arrangements. The only difference is that in commercial surrogacy arrangements, stress is given that a surrogate shall not receive any payment or reward[5] for the service so provided, while no corresponding provision exists for altruistic arrangements. United States It lacks an integrating national policy in this regard. Each state has taken upon itself to frame laws to regulate surrogacy arrangements. Among the states which allow surrogacy arrangements, commercial agreements are criminalized leaving altruistic agreements unobstructed. Further, in England, Australia and to a certain extent in the USA, one has always associated altruistic surrogacy arrangements to be between close family friends or relatives. It is based on the presumption that they being the closest in relation to the infertile couple, shall probably bear the child out of love and true concern. It is often thought that with strangers, the probability of money being the only alluring factor can be quite high. Speculators feel that this can then eventually lead to a trend edging towards commercialization in this sphere. Therefore to curb such tendency, arrangements within the close family circle are encouraged. India At present, National Guidelines have been drafted by an Expert Committee to regulate such activities, anticipating that surrogacy agreements might be favoured as a viable option to fulfil the wishes of infertile couples. The National Guidelines for the Accreditation, Supervision and Regulation of Assisted Reproductive Techniques (ART) clinics in India, like the statutes in the three other nations, have not defined either a commercial or an altruistic surrogacy arrangement. Nowhere has it even used the term altruistic. These Guidelines have only stated that the ART clinics shall not play a role in commercial surrogacy arrangements. With regard to payments, the National Guidelines are definitely not averse to such being paid to the surrogates. In fact it is liberal, as it provides for a clause where liability is imposed on the infertile couple to bear the genuine medical expenses. Surprisingly, unlike any other country, it even entitles the surrogate to receive compensation for the service she provides. It provides scope for a private financial agreement to be drawn up between the parties in such circumstances. Strictly enough, the Guidelines require a documentary evidence of such monetary agreements i.e. an agreement for genuine expenses or compensation to the surrogate]. Moreover, the National Guidelines have taken a startlingly different view as compared to other nations, with regard to the issue of participation of close friends and relatives in altruistic arrangements. It sternly prohibits close members of the infertile couple from acting as surrogates. It does not even permit donation of sperms or ovum by such persons as the ART clinics are responsible for obtaining these gametes from authorized places. Thus the National Guidelines have tried to address most of the vital aspects of any surrogacy agreement. Conclusion Various enactments have dealt with the two types of surrogacy arrangements. The striking similarity between them is the ambiguity in trying to define the two. The general trend has been to associate payments with commercial arrangements, presuming that altruistic arrangements involve only purity of intention. Suggestions As seen above, distinguishing the two arrangements has been deliberately or non deliberately avoided by many legislators. This is probably because the legislators did not foresee the complications which could arise in the future. More so because the two types are not strikingly different from one another. Therefore the premise of separating commercial from altruistic arrangements, by itself is faulty. It is very difficult to ascertain when altruistic arrangements become commercial in nature and vice versa. The usual approach of connecting money with commercial surrogacy arrangements and its absence with altruistic arrangements have becoming increasingly confusing . It could be very possible that in commercial arrangements, the surrogate might be bearing the child out of a genuine intention of the heart, while altruistic arrangements could result out of sheer emotional coercion. As far as payments are concerned, there should be no aversion to the concept of payments made to the surrogate for her services. To use her reproductive capabilities without paying her, can only reconfirm the notion of forcing women to believe that they are nothing better than natural incubators. The deficiency that lies in the various legislations is the non- specification of an upper limit of the amount to be received by the surrogate. Once the law determines it, chances of commercialisation shall substantially minimize if not be eliminated. While analysing which of the two types is more exploitative, arguably, in cases where known persons are involved, there are increased chances of emotional exploitation. This could be far worse than commercial exploitation of ones reproductive capabilities. Sometimes friends and sisters inevitably do take up such a role, as family pressure becomes unavoidable. In such circumstances the Indian Guidelines seem to be the most appealing, since it provides for surrogacy arrangements which are completely free from family dynamics. End of Question 1 Question 2 To whom shall the parental rights be conferred once the child is born? With radical developments in reproductive sciences, it is imperative to consider the certain potential consequences it might entail. As stated before, in surrogacy arrangements at least three women can prove their maternal link to the child so born. She can be the genetic, gestational or the social mother. As the concept of motherhood has been sundered with the advent of medical advancement, the law must clearly pinpoint the legal mother so that she along with her husband can be conferred the parental responsibilities in respect of the child. The measures taken by these countries are as under: United Kingdom The complications regarding motherhood has been simplified. The 1990 Act clarified this issue by declaring the surrogate to be the legal mother of the child. Therefore as opposed to the terms of the contract, if she has a change of heart by wanting to keep the child for herself, she cannot be forced by the Commissioning parents to relinquish the custody of the child. In a different set of circumstances, where the Commissioning parents clamor for their parental rights over the child (without any opposition from the surrogate) the solution is provided in Section 30. Section 30 of the 1990 Act provides for "parental orders". This order enables the Commissioning parents to adopt the child once born. Initially, certain conditions have to be complied with before the parental rights are granted to them. Once the court grants the parental order, all the parental responsibilities are conferred to them. This then automatically extinguishes the rights previously exercised by the surrogate mother. Australia The legislation in each province concur on one point i.e. be it a commercial or an altruistic surrogacy arrangement, the legal mother is the surrogate. In no circumstances can the Commissioning parents coerce her to surrender her maternal rights over the child, if she chooses to keep the child. USA The solution to this sensitive problem has been left to the Judiciary of those states which allow surrogacy arrangements. It started as early as 1986. The Kentucky Supreme Court while deciding Surrogate Parenting Associates v. Commonwealth ex rel Armstrong held that the surrogate ought to be granted the custody of the child,
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