| ABSTRACT | 1 |
| KEYWORDS | 1 |
| INTRODUCTION | 2 |
| CONCLUSION |
ABSTRACT:
The child born through assisted reproductive technology shall be deemed to be a biological child of the commissioning couple and the said child shall be entitled to all the rights and privileges available to a neutral child only from the commissioning couple under any law for the time being in force.
Surrogacy means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it to term and hand over the child to the person or persons for whom she is acting as a surrogate.
KEYWORDS:
Reproductive Technology, biological child, commissioning couple, natural child, surrogate.
INTRODUCTION:
Infertility is generally known as a social stigma in India. It is hypothesized that the agony and trauma of infertility is best felt and described by the infertile couples themselves. Though, infertility does not claim the life of an individual but it inflicts a devastating influence on the life of an individual for not fulfilling the biological role of parenthood for no fault of his or her own. It is also known that in general, Indian society has got a very stable family structure, strong desire for children and particularly for sons to carry forth the lineage or Vansh. With the enormous advances in the field of medicine, infertility can now be treated using the new medical technologies collectively called Assisted Reproductive Technology (ART) such as in vitro fertilization (IVF) or intracytoplasmic sperm injection (ICSI), etc. The birth of the world’s first child, Louise Brown on July 25, 1978, through the technique of in vitro fertilization was a path-breaking step in control of infertility; and is considered as one of the most important medical advances of the last century6. In October 1978.
There are different types of infertility8 and in some cases it would be physically or medically impossible/ undesirable to carry a baby to term and hence, to fulfill the desire of such infertile couple to have a child, surrogacy comes as an important option.
Surrogacy
In Latin “Surrogate” means a substitute i.e., a person appointed to act in the place of another. As per the Black’s Law Dictionary surrogacy means the process of carrying and delivering a child for another person[1]. The New Encyclopedia Britannica defines surrogacy as a practice in which a woman bears a child for a couple unable to produce children in the usual way[2]. According to Warnock Report (1984) HF&E, surrogacy is the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth[3].
There are two types of surrogacy practices prevailing in India:
- Traditional/Natural/Partial surrogacy; and
- Gestational surrogacy.
Like in other countries, in India also, the following two types of surrogacy arrangements are being practiced:
Altruistic surrogacy: Where the surrogate mother receives no financial rewards for her pregnancy or the relinquishment of the child to the genetic parents except necessary medical expenses.
Commercial surrogacy: Where the surrogate mother is paid over and above the necessary medical expenses.
Surrogacy is the union of science, society, services and people that make it a reality. Surrogacy leads to a win-win situation for both the infertile couple and the surrogate mother. The infertile couple is able to fulfill their most important desire and the surrogate mother receives the suitable reward.
To give a womb for rent means to nurture the fertilized egg of another couple in your womb and give birth to the child with a specific intention, the intention here being either money, or service, or because of altruistic reasons.
It has described the following misconceptions regarding a surrogate mother15:
(i) She is not the genetic mother of the child whom she nurtures and gives birth to.
(ii) She is not the wife of the father of the child to whom she gives birth.
(iii) This is a scientific idea, a scientific process. There is no need for any physical contact.
(iv) She is not an asocial woman.
(v) This is not an illegal practice.
(vi) She is not forced into this. She herself decides whether she wants to become a surrogate mother or not.
(vii) She has no claim or rights over the child that is born.
(viii) “This is my child”, “this child is my inheritance” – she cannot articulate such thoughts, because of social, scientific and legal restrictions.
(ix) She is not a woman who sells children.
(x) She is not responsible for the child (once the child is born).
(xi) Surrogacy is a mutually beneficial concept of providing services.
As per the proposed draft Assisted Reproductive Technology (Regulation) Bill16 the surrogacy and related terms are defined in the following ways:
- Surrogacy means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it to term and hand over the child to the person or persons for whom she is acting as a surrogate;
- Surrogate mother means a woman who agrees to have an embryo generated from the sperm of a man who is not her husband and the oocyte of another woman, implanted in her to carry the pregnancy to full term and deliver the child to its biological parents; and
- Surrogacy agreement means a contract between the persons availing of assisted reproductive technology and the surrogate mother.
Issues related with surrogacy
Surrogacy, by ART[4], should be considered only for those infertile women for whom it would be physically or medically impossible/ undesirable to carry a baby to the term. Surrogate mother should sign an agreement with the commissioning couple which shall have legal bindings on both the parties. Before signing the agreement, the written consent of her spouse shall be required. A woman seeking or agreeing to act as a surrogate shall be medically tested for diseases such as sexually transmitted diseases or otherwise, as may be necessary, and all other communicable diseases which may endanger the health of the child or children, and must declare in writing that she has not received a blood transfusion or a blood product in the last six months. The commissioning parent(s) shall ensure that the surrogate and the child or children she delivers are appropriately insured until the time the child is handed over to the commissioning parent(s) or any other person as per the agreement and till the surrogate is free of all health complications arising out of surrogacy. Surrogate mother must register as a patient in her own name in the hospital after signing the appropriate agreement. While registering, the surrogate mother must mention that she is a surrogate mother and should provide all the necessary information about the commissioning parents. Surrogate mother should not use or register in the name of the commissioning couple for whom she is acting as surrogate as this would pose legal issues, particularly in the untoward event of maternal death17.
The birth certificate shall be in the name of the commissioning parents. The ART clinic should also provide a certificate to the commissioning parents giving the name and address of the surrogate mother. All the expenses of a surrogate mother during the period of pregnancy and postnatal care relating to pregnancy should be borne by the commissioning couple. The surrogate mother would also be entitled a monetary compensation from the commissioning couple for agreeing to act as a surrogate. The exact value of the compensation should be decided by discussion between the commissioning couple. and the prospective surrogate mother or an appropriate formula may be developed by the Government to calculate the minimum compensation to be paid to the surrogate mother. A surrogate mother should never donate her own oocyte to the commissioning couple. Surrogate mother as well as the donor shall relinquish all parental rights related to the offspring in writing.
A couple has moved the Bombay High Court in a case related to the Surrogacy Act enacted in December last year.
On May 18, the Bombay High Court sought Mumbai-based Hinduja Hospital’s reply after a couple moved the court seeking to complete a surrogacy procedure, which commenced before Parliament passed the Assisted Reproductive Technologies (ART) Act and the Surrogacy Act in December 2021.
The couple had approached the hospital in October 2021 to undergo surrogacy after the wife had lost both her children and could no longer naturally give birth due to a medical issue. After completing fertilization, the embryos were cryopreserved at Thane.
Later, after the two laws mentioned above came into force in January 2022, the hospital told the couple that they could not transfer the embryos to the surrogate carrier as the new law prohibited it from treating the surrogate carrier. In response, the couple moved the Bombay High Court seeking transfer of the embryos to any other ART clinic.
The hospital argued that under the new law, such issues were to be solved by a national or state board which had to be set up within 90 days of the implementation of the ART Act. On the other hand, the couple pointed out that no such board has not been constituted as yet. Hence, keeping the lifespan of the embryos in mind, the couple argued that they had to move the Bombay HC as a last resort.
Surrogacy (Regulation) Act:
First introduced in the Lok Sabha on July 15, 2019, the Surrogacy (Regulation) Bill was sent to a select committee. After a thorough revision of the Bill, the report was tabled before the standing committee on February 5, 2020. Later, during the 2021 winter session of the Parliament, both houses passed the Bill. It was signed by the President and came into force in January 2022.
The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth. It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease. Surrogacy is prohibited for commercial purposes including for sale, prostitution or any other forms of exploitation.
Moreover, once the child is born, it will be deemed to be the biological child of the couple for all intents and purposes. Abortion of such a fetus is allowed only with the consent of the surrogate mother and the authorities and must adhere to the provisions of the Medical Termination of Pregnancy Act.
Under the Act, a couple should procure certificates of eligibility and essentiality in order to have a child via surrogacy. The couple is deemed ‘eligible’ if they have been married for five years, the wife is aged between 25-50 years and the husband is between 26-55 years. The couple must not have any living child (biological, adopted or surrogate.) A child with mental or physical disabilities, or one suffering from a life-threatening disorder or illness has been exempted from the above criterion.
The couple can get an ‘essential’ certificate if suffering from proven infertility of either partner certified by a District Medical Board, and an order of parentage and custody of the surrogate child, passed by a Magistrate’s court. They must also have insurance coverage for 16 months for the surrogate mother, covering any postpartum complications. A surrogate mother has to be a close relative of the couple, a married woman with a child of her own, aged between 25-35 years, who has been a surrogate only once in her life. She must also possess a certificate of medical and psychological fitness for surrogacy.
The Center and State governments are expected to constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively, within 90 days of the passing of the Act. This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications. Further, surrogacy clinics need to apply for registration within 60 days of the appointment of the appropriate authority.
Offenses under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc. These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakhs.
Assisted Revolution Technology
The ART Act was introduced in Lok Sabha in September 2020 and was sent to a Standing Committee for revisions. Later, along with the Surrogacy Act, it was passed in both Houses during the winter session of Parliament in December 2021. This law too came into force in January 2022.
ART is defined as all techniques used to obtain a pregnancy by handling the sperm or egg cell outside the human body and transferring the embryo into the woman’s reproductive tract. These include – sperm donation, in-vitro-fertilization (IVF) (where the sperm is fertilized in a lab), and gestational surrogacy (child is not biologically related to surrogate).
Conclusion
On obtaining the feedback from different States of the country it was noticed that these National Guidelines were not being followed properly in the country. Therefore, the Indian Council of Medical Research developed a draft Assisted Reproductive Technology (Regulation) Bill in 2008 with the help of a Drafting Committee of ICMR. The draft Assisted Reproductive Technology (Regulation) Bill-2008 was again subjected to extensive public debate not only throughout the country but globally by placing the draft Bill on the websites of the Ministry of Health & Family Welfare, Government of India and of the ICMR. Based on the comments received from various stakeholders including the comments from other countries and as per the recommendations of the Drafting Committee, the draft Assisted Reproductive Technology (Regulation) Bill was revised and finalized. The finalized version of draft Assisted Reproductive Technology (Regulation) Bill-201016 was sent to the Ministry of Health & Family Welfare, and has now been revised by the Ministry of Law & Justice as Assisted Reproductive Technology (Regulation) Bill – 2013. The Assisted Reproductive Technology (Regulation) Bill-2014 has now become a part of the Cabinet Note.
The draft Assisted Reproductive Technology (Regulation) Bill proposes to establish National Board, State Boards and National Registry of Assisted Reproductive Technology (ART) in India for accreditation and supervision of ART clinics and ART Banks, ensuring that services provided by these are ethical and that the medical, social and legal rights of all those concerned including surrogate mother are protected with maximum benefit to all the stakeholders within a recognized framework of ethics and good medical practices.[5]
Submitted by Vaishali Bhugra
[1] Surrogacy in Latin. [accessed on October 10, 2014]. Available from: http://www.latindictionary.org/surrogatus, http://en.wiktionary.org/wiki/surrogatus.
[2] Surrogacy in New Encyclopedia, Britannica. [accessed on October 10, 2014]. Available from: http://www.britannica.com/EBchecked/topic/575390/surrogate-motherhood.
[3] Warnock DM. London: Command of Her Majesty; 1984. Report of the committee of inquiry into human fertilisation and embryology; p. 42. [Google Scholar]
[4] Assisted Revolution Technology
[5] B.COM LLB 4TH YEAR STUDENT FROM UNIVERSITY OF PETROLEUM AND ENERGY STUDIES DEHRADUN.