The Role of Mediation and Arbitration in Surrogacy Disputes

Abstract

Surrogacy is a preferred path chosen and is becoming increasingly popular among many couples who want to but are unable to have children on their own, even though it can be challenging for both parties. It is a practice where a surrogate carries and gives birth to a child that she intends to give to the intended parents.

Drawing a surrogacy contract will benefit all parties involved. Surrogacy contracts can help limit miscommunications and potential disputes between parties at any stage before, during, and after pregnancy. These contracts can guide the parties, outlining all their rights and responsibilities throughout their surrogacy journey.

Surrogacy is on the rise in India, and the unique and complex situation of surrogacy may lead to disagreements between the parties during pregnancy or after birth. The consequences can be devastating for all the parties involved, and settling the disputes through litigation, which involves court proceedings and public records, may compound the stress on the parties.

There are various modes of settling disputes outside the traditional juridical system. This research paper discusses the role of mediation and arbitration in conflicts arising out of disagreements between the parties of the surrogacy agreement. Mediation and arbitration allow for discreet and directed dispute resolution through effective communication in a comfortable environment.

Keywords

Surrogacy, Mediation, Arbitration, Surrogacy contract, Private mediation

Introduction

Surrogacy is an arrangement where a surrogate agrees to bear the child for an infertile woman. It is a method of assisted reproduction where an embryo is created using sperm and egg produced by the intended parents or donors and transferred into the uterus of the surrogate. It is an emotional journey for all the parties involved. In India, Surrogacy is limited to married Indian couples, divorced or widowed women. Surrogacy is increasingly becoming popular and is preferred over adoption as it enables the intended parents to have their own genetic children.

Surrogacy is an accepted practice in India. The world’s second and India’s first surrogate baby was born in 1978 in Kolkata. However, there was a lack of guidelines and legislation in the country, which led to the exploitation of Indian women by foreigners who came to India due to the affordable rates. Commercial surrogacy has been legal in India since 2002, and in 2015, the government of India prohibited foreigners, and commercial surrogacy continued in India for locals until 2021. With the introduction of the Surrogacy (Regulation) Act 2021, commercial surrogacy is prohibited, whereas altruistic surrogacy is allowed in India with specific conditions.

Surrogacy is a complex issue, and the purpose of a surrogacy agreement is to protect all parties involved equally. Agreement between the intending parents and the surrogate woman is essential to avoid potential conflicts due to miscommunication or disagreements at any stage of the surrogacy process. Such agreements may or may be reduced to writing. Surrogacy contracts are essential to ensure that all the terms and conditions are discussed before the surrogacy process.

Research Methodology

The Researcher has adopted a doctrinal method and has referred secondary source of data to analyze surrogacy agreements and disputes in Indian scenario and the role of mediation and arbitration in surrogacy disputes. Secondary source of data includes books, journals, articles, reports published by the government and websites of different governmental and non- governmental agencies and organizations.

What is surrogacy?

Surrogacy is a form of Assisted Reproductive Technology (ART) wherein a woman (surrogate) consents to carry a pregnancy for another couple(Intended parents) who are incapable of conceiving due to medical issues. Surrogacy is of two types based on genetic relationships., Traditional surrogacy and Gestational surrogacy. In traditional surrogacy, the surrogate provides her own eggs, which makes her the biological mother of the child. In gestational surrogacy, the laboratory creates an embryo, which is then transferred into a surrogate uterus. Surrogacy is of two types based on the compensation to the surrogate: commercial surrogacy and altruistic surrogacy. Commercial surrogacy refers to those agreements where the surrogate receives monetary compensation, whereas, in altruistic surrogacy arrangements, the surrogate is only compensated for necessary expenses during the process.

Chronology of the legislative efforts on surrogacy in India [1]

In 2005, the India Council of Medical Research (ICMR) issued guidelines to regulate clinics providing ART procedures including surrogacy arrangements which were approved by the government of India. The guidelines were only directory in nature and not legally enforceable. [2]
The Assisted Reproductive Technology (Regulation) Bill 2008
228th Report of Law Commission of India titled “ Need for legislation to regulate Assisted Reproductive Technology clinics as well as rights and obligations of parties to a surrogacy” August 2009
The Assisted Reproductive Technology (Regulation) Bill 2010
The Assisted Reproductive Technology (Regulation) Bill 2013
The Assisted Reproductive Technology (Regulation) Bill 2014
The Surrogacy (Regulation) Bill 2016
The Surrogacy (Regulation) Bill 2018
The Surrogacy (Regulation) Act 2021
The Assisted Reproductive Technology (Regulation) Act of 2021.

Overview of the Surrogacy (Regulation) Act, 2021

The recent enactment of The Surrogacy (Regulation) Act of 2021 [3] has regulated surrogacy in India to a certain extent. This enactment sets out specific rules and regulations for surrogacy arrangements to protect the interests of all parties involved. The surrogacy law has criminalized commercial surrogacy to prevent its exploitative nature and protect underprivileged women. The act recognizes and allows altruistic surrogacy, where the surrogate receives only medical expenses and insurance coverage. Surrogacy is only available to married couple, divorcee and widows according to the act with certain conditions.

Conditions for surrogacy in India

The Surrogacy (Regulation) Act, 2021 sets forth several conditions to be met by all the parties involved before a couple or an individual can opt for surrogacy. Section 4 of the act lays down certain conditions for the intended couple to obtain certifications, and only then are they allowed to go through with the surrogacy process in government-authorized clinics. Two necessary certifications need to be obtained: a certificate of essentiality and a Certificate of eligibility. Certificate of essentiality shall be granted to the intended couple once they produce a certificate of recommendation from the medical board showing that the couple is having medical issues and is incapable of conceiving and an order concerning the parentage and surrogate child passed by the magistrate of the first class. Certificate of eligibility shall be provided to both the surrogate mother and intending mother upon fulfilling certain conditions like marriage status, age limit, and medical and psychological certificate of the surrogate mother. Also, insurance coverage for 36 months to the surrogate mother post-birth of the child has to be made in advance.

Surrogacy Agreements and Contracts

As defined under Section 2(cc) of ART Bill 2010, “surrogacy agreement” means a contract between the person(s) availing of assisted reproductive technology and the surrogate mother. [4]A surrogacy agreement is a document that lays down the relationship between the intending couple and surrogate, details about the need for surrogacy due to medical issues, both the party’s rights and responsibilities, the terms and conditions under which the surrogate has agreed to the

surrogacy process and the expenses to be covered which includes medical expenses during the term of pregnancy and insurance coverage postpartum. Most importantly, surrogacy contracts should also mention the handing over of custody of the surrogate child to the intended parents. In India, Intending parties shall be the legal parents of a surrogate child. Surrogacy agreements are made per the parties’ will and, therefore, are personal arrangements to avoid disagreements or conflicts at any stage in the surrogacy process. Though the ART Bill of 2008 provided for surrogacy agreements, as of now, there is no proper legislation governing the validity of surrogacy contracts, and the contracts are entered into informally and not regulated by any formal system. Some issues need to be addressed first, like eligibility of both parties, free consent of the surrogate, and safeguards and interests of the child’s welfare before entering into a contract. Even with the consent of the surrogate, for the bargain to be fair and to eliminate the chances of exploitation there must be adequate disclosure of the terms and conditions. Surrogacy contracts that include monetary compensation may raise an issue if such contracts may amount to baby selling. In India, any contract entered into for commercial surrogacy to make a monetary gain shall be unenforceable, whereas, in altruistic arrangements, the country is silent in terms of regulation and enforceability of the contract. The issues that may arise for intending parents are an unsuccessful IVF process, breach of contract by abortion, disregarding the health rules by the surrogate, and a change of mind to give up the child. The surrogate, on the other hand, may also face issues like health complications and intended parents refusing the child. Therefore, there is a need for a contract to discuss all the possibilities during the process to avoid any conflicts and disagreements.

Surrogacy Disagreements and Disputes

As the surrogacy process could be challenging to both parties, the relationship between the intended parents and the surrogate may break down at any stage during the surrogacy process. Disputes during surrogacy can be about payments for medical needs, disregard for health by the surrogate, abortion plan by the surrogate, or change of mind by the surrogate or intended parents. In most cases, individuals enter into surrogacy agreements informally without a written agreement. As there is no regulation to make it legally binding, neither party is bound to any terms. Therefore, surrogacy disagreements may occur at any stage without legal provisions to

make the surrogacy agreements and contract binding. With the contracts in place, the parties can openly discuss and discover any disagreements early on in the process rather than having a dispute during the process, which can be emotionally challenging. As surrogacy disagreements and disputes are private, the parties should be able to resolve them through alternate dispute resolution mechanisms rather than in an open court.

Alternative dispute resolution in India

The enabling legal framework for resolution of disputes through Alternative Dispute Resolution (ADR) has been provided under Section 89, Civil Procedure Code, 1908. Section 89 recognises, Arbitration, Conciliation, Mediation and Judicial Settlement including settlement through Lok Adalat. It provides for the court to refer a dispute for settlement by either of these modes, where it appears that there exist elements of a settlement, which may be acceptable to the parties. [5]

Even though mediation has been rated as the second most preferred form of dispute resolution in India, mediation is yet to catch on significantly in the private field. To address this issue, the government of India has enacted The Mediation Act, 2023, to provide a solid legal framework for the mediation process.

What is mediation and Arbitration?

Mediation is a structured settlement procedure of conflict resolution where a neutral third party uses specialized communication and negotiation techniques. It is a voluntary and interactive negotiation process where the mediator and the parties work together to resolve the conflicts amicably. The concept of mediation in India is ancient and deeply rooted, and the practice of the panchayat system where respected elders act as mediators between the conflicting parties to resolve conflicts.

The Mediation Act of 2023 provides the scope and limitations for disputes that can be settled through mediation. Disputes of a civil nature and commercial nature can be mediated, whereas

disputes involving minors, persons of unsound mind, criminal offenses, tax-related issues, and land acquisition issues are considered unfit for mediation under the act.

Arbitration is a private form of dispute resolution where the parties decide the process and appoint their own judge, who is referred to as an arbitrator. The arbitrator is a neutral third party who decides between the parties. The arbitration process is similar to litigation; there will be hearings and evidence to produce. The arbitral tribunal’s decision is binding on the parties and is referred to as an ‘Award.’ Arbitration is governed by the Arbitration and Conciliation Act of 1996 in India. Resolving conflicts through arbitration offers confidentiality to parties, although the confidentiality is not absolute.

Role of Mediation and Arbitration in surrogacy disputes

There is a misconception that mediation is limited to pre-litigation; in reality, mediation can be initiated at any point in the dispute resolution process. Courts mandatorily refer disputing parties to private mediation centers. These referrals are either initiated under section 89 of CPC, 1908 or before appointing an arbitrator under section 11 of the Arbitration and Conciliation Act, 1996. Therefore, parties can pursue mediation soon after a disagreement has erupted or even after initiating a case in court.

Surrogacy disputes and disagreements can be resolved through mediation and arbitration in a neutral and non-confrontational environment. Mediation is suggested in surrogacy contracts and through mediation; the parties can discuss their expectations, ensuring everyone involved clearly understands the process. The mediator can also help negotiate and reach an agreement if a conflict or disagreement arises. The mediator attempts to bring a voluntary settlement between the parties without being involved in the decision-making process, whereas arbitrator determines the issues and reaches a final and binding decision.

If the matter is not settled in the mediation process, the parties may request the mediator to act as the arbitrator and arbitrate the issues, which can be economical and efficient for the parties. Mediation and arbitration processes will helps the parties interact amicably rather than going

through the process stressfully in an open court. If parties are unable to arrive at a mutually acceptable solution through mediation or arbitration, they can always approach the court.

Parties can directly approach mediation or can be referred through the court mediation process. In court-referred mediation, the court must obtain the parties’ consent, and there is no obligation to reach an agreement between the mediator and the parties. A written agreement between the mediator and the parties is mandatory in other mediations. The agreement shall include the mediation process to be followed and provisions regarding confidentiality. The mediator will guide the parties through the interactions and discussions, helping create a surrogacy agreement that clearly states what each party may receive.

There is no direct law or regulation dealing with the arbitration of disputes arising out of surrogacy matters, but since the nature of the dispute is similar to that of family issues, the jurisprudence evolved in family matters by the courts can be referred to.

The prescribed time limit for arbitration proceedings and to pass an award is 12 months in India, whereas the time limit for mediation is 90 days from the date fixed for the first appearance before the mediator; the court may extend this limit for 30 days upon request. Surrogacy is a service that is limited in time and can only extend up to 9 months until the child is born, so it is advisable to refer to mediation or arbitration to resolve the conflicts.

Suggestions

Surrogacy and the need for various alternate dispute resolution methods to resolve disputes are increasing, the inconsistency and uncertainty in the present legal system creates a major limitation to surrogacy agreements and their binding nature in India.

Requirement of a legally binding and mandatory surrogacy contract between the parties before starting their surrogacy journey is needed to help the parties be transparent about their rights and responsibilities, terms and conditions and to clearly determine the circumstances of the surrogacy arrangement. As one cannot predict the conflict that may arise between the parties during any stage of the surrogacy, a pre drafted and signed contract may reduce potential disputes arising due to misunderstandings and disagreements during the surrogacy process, which can affect both

the parties mentally and emotionally. Drawing a contract prior to the medical procedure may safeguard the interests of both the parties involved in the surrogacy arrangement.

There is a need for a forum for arbitration and mediation of surrogacy disputes, where parties may submit their issues to be adjudicated in a private and confidential setting. This allows for the parties to discuss and negotiate their disagreements amicably in the presence of a neutral third party who can assist in resolving the disputes.

Once the parties reach an agreement on all their rights and responsibilities and terms and conditions, it should be clearly laid down in a contract and signed by both parties.

A proper balance should be maintained between the duties of the surrogate mother and the protection of her dignity and rights. It is to be ensured that the surrogate woman acting out of goodwill is not exploited

Conclusion

At present there is no specific law in India that regulates the terms and conditions of surrogacy arrangements and in the occurrence of disagreements between the parties, they are forced to fight their differences in court. It is possible to eliminate the uncertainties of surrogacy agreements and contracts with a legal framework addressing the challenged faced by the parties during the surrogacy process.

References

Legislative Efforts for Surrogacy in India- A Journey from Liberal Practices to Robust law https://ijcrt.org/papers/IJCRT2306803.pdf
National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India by Indian Council of Medical Research , Ministry of Health and Family Welfare Government of India https://main.icmr.nic.in/sites/default/files/art/ART_Pdf.pdf
National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India https://main.icmr.nic.in/sites/default/files/art/ART_Pdf.pdf
The Assisted Reproductive Technologies (Regulation) Bill – 2010 https://main.icmr.nic.in/sites/default/files/guidelines/ART%20REGULATION%20Draft

%20Bill1.pdf

Government of India at forefront to promote Alternative Dispute Resolution Systems by PIB Delhi