IN SUPPORT OF SURROGATE MOTHERHOOD

There was an incident of mother-in-law bearing child for her son-in-law in the recent past years as her daughter could not conceive a child. It was made into a moral issue in the Indian society and eye brows were raised. But the fact remains that the practice of hiring surrogate mothers has become a luxury for the rich and resourceful people.

Surrogate Motherhood is the process by which a woman bears a child for another infertile couple. There are two kinds of surrogate motherhood. In traditional surrogacy, the mother is artificially inseminated with sperm from the father or with sperm from a donor, if the father is infertile.  In gestational surrogacy, sperm is taken from the father (or from a donor) and the egg from the biological mother.  After fertilization in the lab it is then implanted into the surrogate mother's uterus. Thus, the surrogate mother is not genetically related to the child.

As per recommendation by law commission of India in its 228th report, the new ‘Assisted Reproductive Technology’ (ART) Regulation Bill & Rules, states that the surrogate mother can receive monetary compensation for carrying the child, in addition to health-care and treatment expenses during pregnancy.  But the surrogate mother has to relinquish all parental rights over the child once the amount is transferred and birth certificates will be in the name of commissioning parents. The age-limit for a surrogate mother is between 21- 45 years. Single parents can also have children using a surrogate mother.

Certain guidelines have been drawn by the law commission, summed up as hereunder:

1)      Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child,  medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying the 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.

2)      A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

3)      One of the intended parents should be a donor for the reasons of   bond of love and affection with a child in order to avoid child-abuse

4)      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.

5)      The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

6)      Right to privacy of donor as well as surrogate mother should be protected.

7)      Sex-selective surrogacy should be prohibited.

8)      Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

G R Hari, an Advocate enrolled in the Bar Council of Tamil Nadu, India and Associate Member of American Bar Association, founded India's First Fertility Law Firm, Indian Surrogacy Law Centre (ISLC) which deals with surrogacy related issues.  ISLC facilitates contractual relationships between the surrogates and intended parents, providing surrogates for intended parents, providing legal assistance to either of the parties to the surrogacy agreement. 

Still we may say, as on date Surrogacy in India is unregulated although the Indian Council of Medical Research (ICMR) has set “national guidelines” to regulate surrogacy, these are simply guidelines. All that this means is that surrogate mothers need to sign a “contract” with the childless couple. There are no stipulations as to what will happen if this ‘contract’ is violated.

The ART Regulation Bill 2010, which has been sent to the law ministry for its approval also addresses the citizenship issue, that is, if a foreigner or foreigner couple looks for sperm or egg donation or surrogacy in India -- and a baby is born as a result.

SURROGACY FOR FOREIGN PARENTS

A case before the Supreme Court of India by an American couple for taking their child from surrogate mother in India to their country had caused a lot of problem while issuing visa for the child as the question before the court was to ascertain the paternity of the child. No consideration can be taken or given for adoption of the child as surrogate mother is hired by making payment to the woman who bears the child for another woman, hence child born through surrogate mother cannot be called an adopted child as per Indian law

The concept of surrogate motherhood came into light in 1976 when the lawyer Noel Keane arranged the first formal agreement between a couple and a surrogate mother in the United States. The marketing of "surrogacy" developed as a solution to female infertility (Needs Clarification, why only female, not either?). Brokers entered the scene, hiring women to become pregnant via artificial insemination with the sperm of the husband of the infertile woman.

In 1986 surrogacy came to national attention with the case of "Baby M." In this case, the woman hired as a surrogate, Mary Beth Whitehead, later refused to relinquish the child. After a protracted court battle, in which Whitehead's parental rights were stripped and then replaced, the hiring couple won custody of the baby, but Whitehead remained the legal mother with visitation rights.

EFFECT ON RELIGIOUS AND MORAL VALUES

This "altering" of nature has given rise to moral and religious questions as well. Is it against the laws of nature to produce a child in a laboratory? Most of the reproductive techniques involve means other than traditional procreation. Also, is commercial surrogacy the "selling of babies?" From a conservative social perspective, assisted reproductive techniques involve the commodification of babies, since gestational surrogate contracts usually involve payment to the gestational surrogate in exchange for carrying the child for an infertile couple.

From the religious perspective, some religions do not permit reproduction through means other than natural procreation because a child is seen as a "gift" from God

INFLUENCE ON HINDU ACTS

According to Section 17 (B) of Hindu adoption act provides that no person can take or promise to take, or, agree to take money in Lieu of adoption. The child born out of surrogate process cannot fulfill the terms of adoption under Indian law as money and hiring womb is involved in the process ,cannot be said adopted child

Section 16 of Hindu marriage act provides that illegal child gets the right to the property of biological father in case child born from surrogate mother is born disabled and hiring couple refuses to accept, child shall have the right to the property of father.

As per Hindu succession act mother has the right to the property of son, surrogate mother once gives birth to the child becomes natural guardian /being mother gets right to the child’s property

If law is enacted and the proposed bill is passed by the parliament, the existing laws will also need amendment or there will be inconsistency among other laws.

 

 

 

Dr Prem lata.

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