Proposal for regulating surrogacy arrangements in India

The Lawyers Collective Proposal for regulating surrogacy arrangements in India

The issue

Surrogacy may be of 2 types – partial (when the sperm is fertilized with the egg of the surrogate mother and born to term) or total (when sperm and the oocyte of the commissioning or genetic parents are fertilized in vitro and inseminated into the womb of the surrogate mother who bears the fetus to term). Surrogacy arrangements may be commercial (when the commissioning parents pay for expenses as well as monetary compensation to the surrogate mother) or altruistic (where only expenses are taken care of by the commissioning parents. This is an arrangement often entered into with known members or family members of the commissioning parents)

With the issuance of ART Guidelines by the Ministry of Health and Family Welfare, surrogacy arrangements have been made permissible in India. There is, however, no any law on the issue.

News reports show an increasing trend of surrogacy arrangements being entered into. (particularly in Anand district in Gujarat) In most cases the women enter into such arrangements to overcome financial constraints. There is also an increasing trend of foreigners commissioning Indian women to act as surrogate mothers.

Surrogacy arrangements are primarily facilitated by ART clinics. However, the ART clinics are not meant to negotiate monetary transactions between the parties. Hence such arrangements are entered into by the contracting parties.

There is no study of the manner in which such practices takes place most of the information is based on anecdotal accounts and news paper / media reports.

Discussion
First and foremost, surrogacy has not gained popularity and is not pervasive in India, being a country which is over populated and has one of the richest genetic pools in the world. On the other hand countries which consider surrogacy as a major public issue are those where the population itself is declining and the genetic pool correspondingly declining as is the case in many European countries.

Next, the issue is of recent origin, linked to the availability of reproductive technology- the oldest living child born out of in vitro technology is not over 30 years of age, who has recently written about her experience. However, although surrogacy has not assumed the proportions of a major public policy concern, the question of infertility among individuals desiring a genetic child exists and therefore has to be dealt with by the law.

It follows from this that any law will focus on the right of individuals who are infertile and desire to have a genetic child. The issue then has to be viewed from the point of view of an individual. Does the “right to life” guaranteed in the Constitution include the right to procreate? Are there international instruments or norms on these rights? Does the right to procreate include the right to artificial insemination and creating a child through surrogacy?

It is submitted that fundamental rights does not extend to the right of access to reproductive technology and in particular, does not extend to the right to have an embryo implanted in another woman’s womb.

However, the mere fact that it is not a fundamental right, does not lead to the conclusion that it is unlawful or that it cannot be legislated upon. Even if it is a fundamental right, restrictions can be put upon it in accordance with law. Here, while imposing restrictions by law, public policy does have a role to play in preventing any exploitative arrangements. Even commercial arrangements can be invalidated in the interest of fairness, more so, an arrangement which deals with human genetic material and the bringing into the world of a new human being.

This brings us to the question, whose rights are we dealing with? Considering, that this is not a right to reproduce, we are dealing with the rights of the following persons other than a commissioning parent and concerns:

 the surrogate mother or the woman carrying the child to full term
 the child born out of a surrogacy arrangement
 the commissioning parent/s
 issues of public interest.

To start with surrogate mother – who in cases of total surrogacy gives birth even though the genetic material is not hers and her right to retain the child as the natural mother must be considered. In this respect guidance should be taken from those laws that recognize her right to take a decision on whether or not to retain the child within 6 months following the birth of the child. During this period the commissioning parents cannot insist that she gives up the child.

When the child is transferred to the commissioning parents voluntarily,
it must be by a court order of changing of parents which is not an adoption, but a change of parents by operation of law (reference: fast track adoptions as proposed in South Africa). This is particularly important in India as not all personal laws allow adoption.

Next, the difficult question is of who will be the surrogate mother? In circumstances of poverty and constrained financial resources there is a potential for exploitation and commercialization of reproductive functions. The legal parallel that may be drawn in this regard is that of human organ transplant - Transplantation of Human Organs Act, 1994. This law restricts donors for human transplants to ‘near relatives’ and those voluntarily opting to donate organs. In order to prevent exploitation of women the principle laid down in this law should be followed and surrogacy arrangements limited to altruistic arrangements that are voluntary in nature. This policy shall be a reasonable restriction on the right to reproduce. Commercial surrogacy arrangements, therefore, should not be permitted.

Since the signing of the ICPD Plan of Action in 1994, the Indian state has jettisoned its policies of targeted population control through the use of incentives and disincentives. Allowing commercial surrogacy arrangements shall fly in the face of the stated government position as it acts as a form of incentive in matters of reproductive decision making. Instead the promotion of adoption of children should be pursued as a public policy.

The other major policy consideration in India is to prevent sex
selection through surrogacy arrangements which has already been stated in the Guidelines on Assisted Reproductive Techniques.

In sum

 Surrogacy should be permitted only in cases of proven medical infertility.
 Individuals may have a right to procreate through artificial insemination or surrogacy, however, such a right in public interest can be restricted to safeguard the rights of the surrogate mother and the child.
 India has a proven policy of preventing exploitation of the poor in the Transplantation of Human Organs Act by allowing transplants only from relatives, volunteers or cadavers. This public policy pattern should be followed in matters of surrogacy.
 Another major issue public concern is to prevent sex selection through the use of ART.
 It follows that commercial agreements should not be enforceable.
 The surrogate mother to be considered the birth mother until she gives up her right voluntarily by parental order.

Suggested next steps
In view of the current scenario there is an urgent need for enacting a legislation to regulate the practice of surrogacy. This can be done by first studying the manner in which such arrangements are being entered into, including its prevalence, the reasons behind persons entering into such arrangements, the socio-economic profile of the surrogate mothers and commissioning parents, manner in which such agreements may be violated, whether there are any intermediaries who stand to profit from such transactions, etc.

The regulatory framework must take note not only of the ground realities surrounding the issue of surrogacy but also scientific developments that bring in their wake issues of eugenics and are violative of human rights and dignity. It is therefore suggested that a comprehensive law on embryology and human genetics be formulated in lines of legislation adopted in other countries. The United Kingdom and proposed legal regime in South Africa provide valuable guidance.

This law should include within its ambit a regulatory framework on surrogacy with the following components:
General provisions
o Allowing voluntary surrogacy arrangements only which means that only voluntary surrogacy agreements shall be enforceable.
o Provisions allowing the transfer of parentage to commissioning parents on the consent of the surrogate mother given within 6 months of the birth of the child.
o Providing a regulatory mechanism for medical/genetic facilities used to fructify surrogacy arrangements.
o Penalizing intermediaries who initiate or take part in any negotiations or stand to profit from surrogacy arrangements.
o Penalizing advertisements for surrogate mothers.
o Provisions to guard against sex selection for non medical reasons.

Specific provisions on the surrogacy arrangement
o Stipulating requirements to be fulfilled by the surrogate mother (age, physical conditions, etc) and by the commissioning parents (age, medical conditions indicating infertility, ability to act in the best interest of the child, etc).
o Prescriptions for testing of all parties to the surrogacy arrangement
o Provisions on the screening and counseling of persons desirous of entering into the surrogacy arrangement.
o Provisions providing for insurance available to the surrogate mother in case of deaths or other health complications arising or injuries sustained as a result of the pregnancy.
o Provisions on the other forms of reimbursements to be made to the surrogate mother such as actual medical expenses incurred, loss of earnings, etc. Such reimbursements must be calculated on the basis of actual costs incurred and not driven by commercial considerations.
o Provisions to address situations which may arise from the surrogacy arrangement such as cases where the child is born with congenital defects or any other abnormalities, the decision of the woman to abort the fetus, cases where the commissioning parents are divorced or separated during the course of the pregnancy, etc.
o Provisions ensuring a surrogate mother’s access to legal aid in cases of dispute.
o Provisions on offences and penalties in cases of breach of conditions of the surrogacy arrangement entered into by the parties.