SURROGACY: ANALYSING THE

ETHICAL AND LEGAL

CONUNDRUMIN INDIA

Ali Yavar Amerjee Naseeruddin Ahmad

SURROGACY: DEFINITION

The act of a woman, altruistic by nature, to gestate a child for another individual or couple, with the intent to give said child back to his/her parents at birth.

METHODS

Partial Surrogacy Involves the surrogate mother inseminating herself with the commissioning father’s sperm

Full Surrogacy: An Embryo is created in vitro, using the commissioning couple’s egg and sperm, and is transferred to the surrogate mother’s uterus.

ART: ASSISSTED REPRODUCTIVCE

TECHNIQUES Medication, IVF or artificial insemnination. Assisted zona hatching (AZH) is performed shortly before the

embryo is transferred to the uterus. A small opening is made in the outer layer surrounding the egg in order to help the embryo hatch out and aid in the implantation process of the growing embryo.

Intracytoplasmic Sperm Injection (ICSI) Intracytoplasmic sperm injection (ICSI) is beneficial in the case

of male factor infertility where sperm counts are very low or failed fertilization occurred with previous IVF attempt(s). The ICSI procedure involves a single sperm carefully injected into the center of an egg using a microneedle. This method is also sometimes employed when donor sperm is used. Autologous endometrial coculture is a possible treatment for patients who have failed previous IVF attempts or who have poor embryo quality. The patient's fertilized eggs are placed on top of a layer of cells from the patient's own uterine lining, creating a more natural environment for embryo development.

In zygote intrafallopian transfer (ZIFT), egg cells are removed from the woman's ovaries and fertilized in the laboratory; the resulting zygote is then placed into the fallopian tube. Cytoplasmic transfer is the technique in which the contents of a fertile egg from a donor are injected into the infertile egg of the patient along with the sperm. Egg donors are resources for women with no eggs due to surgery, chemotherapy, or genetic causes; or with poor egg quality, previously unsuccessful IVF cycles or advanced maternal age.

In the egg donor process, eggs are retrieved from a donor’s ovaries, fertilized in the laboratory with the sperm from the recipient's partner, and the resulting healthy embryos are returned to the recipient's uterus. Sperm donation may provide the source for the sperm used in IVF procedures where the male partner produces no sperm or has an inheritable disease, or where the woman being treated has no male partner. A gestational carrier is an option when a patient's medical condition prevents a safe pregnancy, when a patient has ovaries but no uterus due to congenital absence or previous surgical removal, and where a patient has no ovaries and is also unable to carry a pregnancy to full term.

Preimplantation genetic diagnosis (PGD) involves the use of genetic screening mechanisms such as Fluorescent In Situ Hybridization (FISH) or Comparative Genomic Hybridization (CGH) to help identify genetically abnormal embryos and improve healthy outcomes. Embryo splitting can be used for twinning to increase the number of available embryos

COMMERCIAL SURROGACY

CONCLUSION

LEGAL ISSUES

HEALTH ISSUES

PROPOSED LEGISLATION

COMMERCIAL SURROGACY

LEGAL POSITION UNITED STATES OF AMERICA

UNITED KINGDOM CANADA

INDIA

LEGAL POSITION

Different Countries have varied laws relating to surrogacy.

The Supreme Courts of some Countries have not explicitly ruled on the legal validity of Surrogacy.

Statutory validation is rare.

UNITED KINGDOM British Surrogacy Arrangements Act of 1985

prohibits and criminalizes commercial surrogacy. However, this law defines commercial surrogacy narrowly and only prohibits third-party intermediaries from receiving a fee.

Human Fertilization and Embryology Act 1990 (UK) (HFEA) established the Human Fertilization and Embryology Authority whose basic function was to grant licenses and authorize activities in the course of providing treatment services’

Recently a new law was enacted for the adoption of children in England known as the Adoption and Children Act 2002 (UK).

INDIA

No such legislation has been framed Supreme Court has not explicitly

laid down guidelines in Baby Manji Yamada v. Union of India.

The Gujarat High Court decision of Jan Balaz v. Union of India did not address the issue completely.

UNITED STATES OF AMERICA The Supreme Court has not addressed the issue

of surrogacy. The Uniform Status of Children of Assisted

Conception Act was passed not as a regulatory act for surrogacy but with the intention of having limited tangential use of the so-called surrogacy components.

It is illegal in the states of Washington, Michigan, Utah, Arizona, New Mexico and New York.

In Re Baby M: Surrogacy Contract is against the Public Policy, decision of the New Jersey Supreme Court.

CANADA

The recently passed Assisted Human Reproduction Act has chosen to explicitly prohibit commercial surrogacy.

PROPOSED LEGISLATION

• Under the Draft ART Bill 2009 commercial surrogacy is per se allowed and the commercial surrogacy contracts are recognized.

• Many safeguards are taken to see that the mothers are not exploited. For example, only thrice can a woman can be surrogate and that a guardian has to appointed for the child in case of foreign commissioning couple.

• But the Bill lacks many a things. • The ART Bill 2009 does not contain provisions for

assisted hatching, blastocyst culture and transfer, laser hatching, ovarian drilling, in vitro maturation.

• Definition of ‘embryo’ is different from that in PC&PNDT Act and ICMR Guidelines.

• Advertisements for egg donors or surrogates by advertisement agencies, tourism departments, surrogacy agents, women’s magazines, medical tours and travel agencies are not covered.

• Draft Bill does not emphasize adoption adequately.

• No maximum age for undergoing surrogacy.

• While unmarried couple are allowed, homosexual couples are not.

• No provisions regulating Pre-implantation Genetic Diagnosis (PGD) and Sex Selection of the child.

ICMR GUIDELINES The Indian Council for Medical Research has given Guidelines in the

year 2005 regulating Assisted Reproductive Technology procedures. The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:

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, agreement of her husband and other family members for the same, 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.

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 intended parents and subsequent willingness of none to take delivery of the child.

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

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.

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.

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 abortions should be governed by the Medical

Termination of Pregnancy Act 1971 only.

HEALTH ISSUES

FOETAL-MATERNAL BONDING

RISKS IN ASSISTED

REPRODUCTIVE TECHNOLOGY

PSYCHOLOGICAL IMPACT ON THE

SURROGATE

BEWILDERMENT &

ADOPTED CHILD

FOETAL-MATERNAL BONDING

This is the bond formed between the mother and the foetus during the pregnancy and for some time after the birth.

Occurrences like eye-gazing, breast feeding, skin to skin contact initiates release of oxytocin which helps psychological process for the baby to develop and the mother to recover. This also promotes bonding pattern and creates desire for further contact with the individuals inciting its release.

There is a crucial window of time from the moment of birth onwards, whereby the baby begins to form cognitive attachments through inter-subjective interaction with the gestational mother.

Surrogacy ruptures this bond and depriving both the mother and child from important psychological development and may lead to surrogates not giving up the child.

GENEAOLOGICAL BEWILDERMENT & ADOPTED CHILD SYNDROME

Genealogical bewilderment refers to the identity problems that are experienced by a child who was either fostered, adopted, or conceived through surrogacy.

Surrogacy deliberately creates confused family structures producing genealogical bewilderment for the child.

Adopted child syndrome is a pattern seen in adopted children which includes pathological lying, stealing, truancy, manipulation, shallowness of attachment, provocation of parents and other authorities, threatened or actual running away, learning problems, fire-setting, and increasingly serious antisocial behaviour.

In adoption the well-being of the child is paramount but in surrogacy the wishes of the parents is supreme.

Now if a child reacts in such a way knowing that the parents wanted his well being, the child knowing that his parents bought him from somebody may lead to a more violent vicious form of adopted child syndrome.

PSYCHOLOGICAL IMPACT ON THE SURROGATE

In a study with fourteen surrogate mothers about their feelings or concerns about relinquishing the child one mother reported emotional distress over the relinquishment and two others reported a strong instinctual urge to bond with the child. The remaining eleven did not feel bonded with the child.

It may sound that majority of the surrogates are not attached with the child but in reality the surrogates undergo therapy and use cognitive dissonance reduction strategies to cope with their loss, implying that the issue is much deeper seated.

If and when such therapy are withdrawn the surrogates feel intense separation anxiety.

RISKS IN ASSISTED REPRODUCTIVE TECHNOLOGY

Surrogacy involves Assisted Reproductive Techniques (ART), so all the risks involved in ART are involved in surrogacy.

According to a recent review ART is responsible for approximately 50% of all multiple births worldwide, and about half of IVF pregnancies in the US result in multiple births, with a high risk of premature delivery.

One-third or even one-half of infant mortality is due to complications of prematurity, and a large contributor to prematurity is infertility treatment.

CONCLUSION• The legal position on surrogacy in India is

still ambiguous. Commercial surrogacy is a concept which is sought to be prohibited by law in a majority of nations.

• Legal complications regarding parenthood of surrogate children have contributed further to the debate on commercial surrogacy.

• The health implications of surrogacy are ominous, so before deciding anything thorough research has to be be done in this field.

LEGAL ISSUES

PARENTHOOD

CONSTITUTIONALITY

ENFORECEMENT OF

CONTRACTS: HURDLES

UNENFORCEABILITY OF CONTRACTS

SURROGACYCONTRACTS

PARENTHOOD

Important for the following reasons: To determine custody. Financial security of the child. Legal parents have a duty to support

their child. Imperative to determine inheritance.

SURROGACY CONTRACTS Traditional- Here the wife being unable to produce eggs is

unable to bear a child another woman has intercourse or artificial inseminization with the husband and bears the child for him.

Gestational surrogacy- Here the wife of the commissioning couple is able to produce eggs but cannot gestate a child. The wife's eggs are fertilized in vitro by her husband's sperm, and a fertilized egg is transferred to the surrogate for gestation. In this situation, the child has two mothers: a genetic mother and a gestational mother.

A surrogacy contract provides for payment of a fixed amount and additional expenses to the surrogate mother.

The amount is usually paid after the birth of the baby and the surrogate is prohibited from alcohol consumption or smoking, both which have harmful effects.

ENFORECEMENT OF CONTRACTS: HURDLES

Adoptive parents are forbidden from paying for the child.

Statutes criminalize pre-conception agreements. There is a waiting period after the child’s birth,

after which the mother is given an option to relinquish the child’s custody, as held in Johnson v. Calvert, 851 P.2d 776, 778 (Cal. 1993) (en banc)

Surrogate mother to be given certificate by parents/ customers.

Proper documentation should be issued by Surrogacy clinics.

UNENFORCEABILITY OF CONTRACTS

Some American States use an adoption model and impose restrictions, such as screening the participants, requiring court approval, and permitting the surrogate to change her mind. Sometimes, a surrogacy contract is voidable by the surrogate up to seventy-two hours after she gives birth, or up to one week if extenuating circumstances require more time.

Confidentiality of oocyte/sperm donor must be insured.

Adoptive parents must accept child even with abnormalities.

CONSTITUTIONALITY The dilemma that the father is biologically

related to a child whom he is prevented from raising may be more difficult to solve than by merely giving the father a chance at gaining custody or, more likely, visitation rights.

Extortion: The law cannot prevent all possibilities of extortion, but the problem is exacerbated in a surrogacy arrangement when the mother has a significant time period in which to change her mind.

Whether unmarried persons can avail of surrogacy?