By Manjunatha N G
Parenthood in the postmodern era has become an integral pillar of most relationships. This is because the main motto of the present society is survival and continuing the generations. Surrogacy is in a way a boon for infertile couples to procreate. Surrogacy is an arrangement between a woman and a couple or individual to carry and deliver a baby. It is a controversial process that is not legal in all states. The surrogate mother is also known as a gestational carrier.
The surrogacy arrangement is sometimes made through an agency and other times contracted privately. Surrogacy arrangements are sometimes made between strangers who never meet, or between persons who meet only occasionally through the process. A surrogacy arrangement might also involve persons whose lives become intertwined during the process, and even those who are family members or friends before entering a surrogacy arrangement. The success rate of surrogacy cannot be determined because it is dependent on many factors. The first successful gestational surrogacy took place in 1985. Other forms of surrogacy have existed since Biblical and Mahabharata times.
The surrogacy issue was highly publicized when the “Baby M” court case was presented in New Jersey in the mid 1980s. In this custody case, the surrogate mother declared she was unable to fulfill her contract and turn over the child she carried to the intended parents. Initially, the court ruled for the intended parents and gave them custody. Later, the surrogate mother regained some parental rights and was granted parental visitation.
Meaning of Surrogacy
Surrogation is a third party reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child for others to raise. She may be the child’s genetic mother or not depending on the type of arrangement agreed to. The word surrogate is derived from a Latin word meaning appointed to act in the place of another.
Surrogate Motherhood
Practice in which a woman (the surrogate mother) bears a child for a couple unable to produce children, usually because the wife is infertile or unable to carry a pregnancy to term. The surrogate is impregnated either through artificial insemination (usually with the sperm of the husband) or through the implantation of an embryo produced by in vitro fertilization. The surrogate traditionally gives up all parental rights, though this has been subject to legal challenge.
Types of Surrogacy
When trying to decide if surrogacy is right for you there are many things you must consider besides your financial and physical abilities. Your emotions as well as those of your partner, family, friends, and even co-workers also should be taken into consideration. The following section is designed to help you understand all that you must consider when choosing whether or not to pursue surrogacy. Please keep these in mind when continuing on and reading the rest of this book. It is best to understand the entire surrogacy process and different types of arrangements and experiences one may have before choosing to pursue a surrogacy arrangement.
A traditional surrogacy arrangement is one in which the gestational mother is both the genetic and gestational mother of the child; however she relinquishes her role of social mother to the commissioning mother.
Complete surrogacy (using In Vitro Fertilization)
The intended parents produce an embryo that can then be transplanted into the surrogate mother for her to gestate and give birth to a child after nine months. In this the pregnant woman makes no genetic contribution to the child. In some cases, particularly of infertility, this may be combined with the use of donor sperm or donor eggs in creating the embryo for transfer.
What’s the surrogate rate
Attaching a numerical success rate to surrogacy is virtually impossible; too many factors go into the mix. If you can find a willing surrogate; if she gets pregnant and carries the baby to term (which depends on variables including sperm count and her ability to conceive, as well as the success of complicated procedures such as IUI and IVF).
Since the Organization was founded in 1988, COTS has been involved in over 500 surrogate births in the UK. They estimate that happy and successful conclusions are reached in 98 per cent of the arrangements they help to set up.
The Impact of Surrogacy in the Present Scenario
“After IT services,” opines Dr Nisha Kathuria, a Delhi-based gynecologist / obstetrician, “it’s now the turn of babies to be outsourced from India. In these times of globalization and market-driven economies, there’s considerable demand for this service.” Infertility treatments and egg, sperm and embryo donation are no longer rare, national and international adoption is commonplace and surrogacy is becoming increasingly popular. A simple desire to have a child can easily become an overwhelming process of making unexpected choices all of which have many unknowns.
A good place to start is by looking over the positives and negatives of each and then compare that list to your financial, emotional, and physical resources as well as how much time you can invest in each.
Positive Impacts
Couples all over the globe that had to overcome the difficulties associated with becoming parents, either because of infertility issues or same sex couples, have however been given a solution thanks to the advance of medical research. For a woman who can’t conceive, surrogacy creates a chance for her and her partner to parent a child who is their genetic offspring at least partially (if they use the father’s sperm and the surrogate’s egg) or completely (if they ask the surrogate to carry an embryo created from the mother’s egg and the father’s sperm). If they set up an open arrangement, the couple can be intimately involved in all the details of their baby’s gestation and may be there for the birth of their baby. Noted fertility expert Dr Indira Hinduja describes surrogacy as one of the well-accepted methods of assisted reproduction that benefits patients who can’t conceive or carry a pregnancy to term. “Such people can take the help of surrogates, who carry their child in the uterus and then hand it over to the genetic parents, post-delivery,” she says.
Negative Impacts
In addition to the complications accompanying procedures, such as IUI and IVF, surrogacy is highly controversial and can be legally complex. Despite the demand, surrogacy has its share of critics in India due to the moral, legal and ethical debate that swirls around it. Opines lawyer/activist Preeti Katyar, “If surrogacy becomes an avenue by which women in richer countries choose poorer women in our country to bear their babies, then it is economic exploitation, a kind of biological colonization.”
Not all clinics support surrogacy so it may take longer to find the right clinic for you and you may have a longer journey to get the procedures needed. You could use the COTS clinic list, along with the HFEA clinic finder to find the nearest clinic to you that could help.
Some surrogates face difficult emotional and psychological issues over letting the baby go. The infertile couple not only experience the usual suspense and anxiety of waiting for a pregnancy to reach full-term safely but also worry about legal complications, the ethics of “buying” a child and the possibility that the surrogate will change her mind. (From a legal perspective, any agreement made with a surrogate mother is not recognised as a binding contract). In addition, the couple and the surrogate may have difficulty making mutual decisions about matters, such as antenatal tests and how to manage the pregnancy, labour and delivery.
Most parents are open and honest with their child about the way they were brought into the world and experts consider this is much better for a child’s emotional development than trying to keep it a secret. Organisations that offer sources of information and personal accounts about telling children how they were conceived include: A CeBabes and the Donor Conception Network. Unsurprisingly, with such ambiguous regulations in place, surrogacy in India has become a dangerous playing field for unscrupulous middlemen who entice and push uneducated and poor women into surrogate motherhood. This practice also encourages the misuse of a surrogate child for terrorism, prostitution or unethical genetic engineering research.
Legality of Concept of Surrogacy
A factor that has contributed to the negative feeling is the lack of a definitive legal framework to deal with surrogacy and related issues. While commercial surrogacy is banned in many countries – including Italy, Australia, Spain and China – and permitted with restrictions in the US, France and Germany, the Indian government is yet to formulate any laws. In fact, the only guidelines, which regulate surrogacy – and the clinics that provide ART (Assisted Reproductive Techniques) – are the ones framed by the ICMR and the Ministry of Health and Family Welfare in 2005.
For instance, Section 3.10 of the Indian Council of Medical Research guideline states, “No relative or person known to the couple may act as a surrogate.” This, experts believe, is ludicrous as it propels childless couples needlessly towards commercial surrogacy. In fact, in-vitro fertilization (IVF) experts say that in 90 per cent of the surrogacy cases in India, the mother is related to the childless couple while only in five per cent cases, the surrogacy is altruistic and in the remaining five per cent, commercial. So, infertile couples are forced to think twice before going in for it due to the costs involved, which is unfortunate as India is home to 14 per cent of the world’s estimated 80 million infertile couples.
Then there is ambiguity about a surrogate mother’s rights. Delhi-based lawyer Rita Row says, “The guidelines are skewed and thoughtless. There’s very little to protect the interests of the surrogate mothers.” The guidelines state that “a surrogate should be younger than 45 years” without mentioning the minimum age. So does that mean an 18-year-old, or someone even younger, can become a surrogate mother?
Also, what happens after the baby is born? “The biggest problem,” explains Dr Gupta, “arises after the baby’s birth. Foreigners are unable to get legal assistance when it comes to taking the child back home.” According to the ICMR guidelines, a child born through surrogacy “must be adopted by the genetic (biological) parents unless they can establish through genetic (DNA) fingerprinting that the child is theirs.” Ergo, the only option left open to them is to ‘adopt’ the baby – which is a very lengthy and cumbersome process in India.
It is very essential from a legal point of view to look into few judgments on surrogacy and related agreements all over the world.
In Re Baby M Case 542 A2d 52 (N.J. Super. Ct. Ch. Div. 1988): This case involved a surrogate contractual arrangement between William Stern and Mary Beth Whitehead. It recited that Stern’s wife was infertile, that they wanted a child and that Mrs. Whitehead was willing to provide that child as the mother with Mr. Stern as the father for a consideration of $10,000. Whitehead was artificially inseminated with Stern’s sperm, she carried the child and once the child was born decided she wanted to keep the child.
The court found this contract unenforceable because it violated state statute and went against public policy. The statute prohibited the use of money in connection with adoptions. This was against public policy because it allowed parents to decide the custody of the child in advance of birth and this failed to consider the best interest of the child. The court stated that this transaction constituted the sale of a child.
Johnson v. Calvert, 5 Cal.4th 84, 851 P.2d 776 (1993): Anna became pregnant but subsequently the relationship between the two parties began to deteriorate. Anna sent the Calverts a letter demanding the balance of payments due her or else she would refuse to give up the child. The Calverts filed a lawsuit seeking a declaration that they were the legal parents of the unborn child. Anna filed an action to be declared the mother of the child. The court, in analyzing the contract, focused on the intent of the parties and concluded that “even if genetic consanguinity and giving birth do not coincide in one woman, she who intended to procreate the child, that is, she who intended to bring about the birth of a child that she intended to raise on her own, is the natural mother under California law.”
The court correctly noted that gestational surrogacy differs from adoption, since both parents were the genetic parents and Anna was only the “gestator”, and thus adoption statutes did not apply. This did not constitute payment for giving up “parental rights”, but for services in gestating the fetus, and undergoing labor. The court was not persuaded that gestational surrogacy requirements tended to exploit or dehumanize women. It also noted that there has been no proof that such contracts exploited poor women, or fostered the attitude that children are mere commodities. Therefore, gestational surrogate agreements, voluntarily entered into, should be enforced according to the intent of the parties. The court seems to be preserving for the intending parties what may be their only means of procreating a child of their own genes.
Belsito v. Clark, 644 N.E. 2d 760 (Ohio C.P. Summit County 1994): In that case, an infertile couple Anthony and Shelly Belsito sought Shelly’s sister, Carol to act as the gestational surrogate of their child. Anthony contributed the sperm and Shelly the eggs. When Shelly contacted the local hospital regarding the birth certificate, the hospital informed her that under Ohio law, the birth mother would be listed as the legal mother and the child would be listed as illegitimate because the birth mother and the genetic father were not married. The court used the “genetic test” and concluded that Anthony and Shelly were the legal and natural parents of the unborn child.
Conclusion
The regulations don’t provide legal protection to Indian parents, either. The only legal recognition of the child’s parentage is the birth certificate, and it’s only the birth mother’s name that can be used for this purpose. Consequently, if the birth mother decides not to hand over the baby after birth, there’s nothing the intending parents or the doctor can do about it. The law in US mandates that surrogate agreements be meticulously drawn out to delineate the responsibilities of intending parents as well as the surrogate. It’s time the government seriously considers enacting a law to regulate surrogacy and related IVF/ART technologies in India to protect and guide couples going in for such an option. Without a foolproof legal framework, patients will invariably be misled and the surrogates exploited.