Surrogacy Law in India – A Comprehensive View :
In-Vitro Fertilisation (IVF)
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Comparative Dimensions and Prospective Analysis of the Law in India
By : Ashish Chug and Satarupa Chakravortty
Ref : surrogacy.com
In the past 2 decades, there has been a spectacular change in the field of reproductive technologies. Reproductive sciences have come in with techniques like donor insemination, in vitro fertilization and embryo transfer methods which have completely revolutionized the reproductive environment. These techniques have infused hope into many infertile couples, who long to have a child of their own. Unfortunately, complications have arisen once these methods were combined with surrogacy arrangements.
Before one explores the conflict zones of surrogacy arrangements, it is necessary to understand certain concepts.
Surrogacy is the practice by which a woman bears a child for another with the intention of handing over the child to the commissioning parents, once born.
The surrogate mother is the one who gestates the child.
The genetic mother is the one who donates her ovum.
The Commissioning parents are the ones who receive the child from the surrogate after the birth of the child.
Methods of Surrogacy
There are two methods of surrogacy arrangements.
- Partial Surrogacy:
This is when the child harvested by the surrogate, shares the genetic makeup of the surrogate mother and that of the commissioning father. The Commissioning mother has no role to play in such arrangements.
- Total surrogacy:
In this case an embryo is created by the IVF method. It is done by combining the gametes of both the Commissioning parents. This is then implanted into the uterus of the surrogate mother who carries the child to term. Therefore the child has the genetic combination of the commissioning parents.
Types of Surrogacy arrangements
There are two types of surrogacy arrangements.
- Commercial surrogacy arrangements:
This is when the surrogate is paid over and above the necessary medical expenses.
- Altruistic surrogacy arrangements:
This is when the surrogate is paid only the necessary pregnancy related expenses and at times nothing at all.
Dilemma of Parenthood
Unexpectedly, with the oncoming of surrogacy agreements, concepts of fatherhood and motherhood became subject to much controversy. Motherhood was never under much scrutiny as it was rightly thought that childbirth was the natural and conclusive fact establishing it. Paternity was a more controversial concept burdening legislators to provide for suitable tests. Little did anyone envisage, that a century later medical sciences would compartmentalize motherhood into the genetic, gestational and the social mother leading to a clash of interests, coincident in three women. The numbing factor is that all can simultaneously prove to be mothers of the unborn child.
Initially, the biological and the social aspect of motherhood were identifiable in one person. Now motherhood can be distinctly fragmented into three parts viz. the genetic mother who contributes her ova for the embryo, the surrogate mother who bears the child and the social mother who nurtures the child. Countries like United Kingdom and Australia have simplified this problem by lawfully declaring the surrogate to be the legal mother whereas India and certain states of the United States of America have held the commissioning mother to be the legal mother of the child.
No surprisingly surrogacy agreements have posed a series of social, ethical and legal issues, which needs to be carefully evaluated. This evaluation must be read in the backdrop of the conservative attitude of the people on this issue. While countries like U.K., Australia, and the U.S.A. have taken efforts to legislate in this regard, in India, the medical fraternity too has been trying hard to lobby for the formalization of National Guidelines governing such arrangements. Although this is met with staunch opposition where experts from varied fields, have unflatteringly compared it to “womb-leasing” and “baby-selling”, it is important to remember that if forbidden, it indirectly encourages clandestine growth of such practices. Therefore it is prudent to have legislation regulating this activity.
The legislative developments of the above mentioned nations are as follows:
Surrogacy is governed by the Surrogacy Arrangements Act, 1985. Very close to its heels came the Human Fertilisation and Embryology Technology Act, 1990. This Act conclusively dealt with certain provisions left ambiguous in the preceding Act. Therefore both these Acts jointly regulate surrogacy agreements.
Along with the above mentioned Acts there is the Warnock Committee. It was constituted in 1982. The Committee critically examined the positive and negative aspects of reproductive advancements in relation to surrogacy arrangements.
The country is divided into 5 provinces viz. Victoria, South Australia, Australian Capital Territory, Queensland and Tasmania. Each has introduced its own legislation to regulate such practices.
There is no national legislation regulating surrogacy arrangements. Each state is free to have its own legal perspective in this regard. Regrettably, some States have sternly disapproved such arrangements while others] have made laws governing it. Among these progressive states, some have even permitted the courts to adjudge this complex issue.
Under the supervision of the Indian Council for Medical Research, National Guidelines have been drafted for the accreditation and regulation of specific medical clinics. It has been thought that these clinics are to assist in the implementation of the latest reproductive technologies. The draft National Guidelines have been prepared by an expert committee consisting of distinguished professionals, scientists and educationalists from relevant spheres of study. At present, the National Guidelines have been released by the Secretary of Ministry of Health and Family Welfare, for public debate. Although these are draft rules, devoid of statutory force, but it shall have the necessary legal validity once approved in Parliament.
Surrogacy arrangements have disrupted the traditional methods of procreation. This has led to the reconsideration of serious moral, ethical and legal issues.
Some of them which must be taken into account are:-
What are Commercial and Altruistic Surrogacy arrangements? Whether they can be distinguished from one another and why are altruistic arrangements more encouraged than commercial arrangements?
To whom should the parental rights be conferred once the child is born?
Whether surrogacy agreements have the propensity to exploit women having weaker bargaining power?
Whether the welfare of the child is of paramount importance in surrogacy agreements?
Should surrogacy arrangements be enforceable in the Courts of Law in various nations?
Should surrogacy arrangements be regulated under law?
Each issue has been separately discussed in the light of the existing law in the countries of U.K., Australia, U.S. and India.
Question 1 : What are Commercial and Altruistic Surrogacy arrangements ? Whether they can be distinguished from one another and why are altruistic arrangements encouraged more than commercial arrangements?
Surrogacy arrangements are of two types, commercial and altruistic. Almost no legislation has attempted to define the two. Generally, commercial surrogacy arrangements are those involving payments made to surrogate which are over and above the necessary medical expenses. This is common when the surrogate is unknown to the commissioning couple. Altruistic arrangements are associated with no or only minimum payments for the necessary medical expenses. This is more commonly arranged between close relatives and friends of the commissioning parents. The task of clearly differentiating the two arrangements has always been troublesome.
The manner in which the four countries have confronted the problem is as follows: -
The 1985 Act was hastily legislated after the much publicized Baby-Cotton case (1985 FLR 846). Nowhere has it defined the two types of surrogacy arrangements. The Act only prohibits commercial surrogacy arrangements and outlaws advertising in this regard. Therefore, one implies that it indirectly allows altruistic surrogacy arrangements.
The Act does not prohibit payments made to the surrogate. In fact, it allows the surrogate to receive reimbursement for genuine medical and pregnancy related expenses. Surprisingly, if extra payment is made to her, no criminal offence is made out as per the 1985 Act. Unfortunately, in reality Section 30 of the Human Fertilisation and Embryology Act, 1990 acts as a disincentive, as it may hinder the commissioning parents from obtaining a parental order if payments exceed the amount of genuine expenses. The practice of paying money in exchange of adoption is also not encouraged by Section 57 of the Adoption Act of 1976.
To prevent commercialization in this regard, the Warnock Committee has suggested the introduction of new provisions defining the term payments. As rightly pointed out by them, without this, differentiating commercial from altruistic arrangements becomes difficult. The Committee has been endeavouring to put a ceiling to the maximum lawful amount that can be paid to the surrogate for her services. It has altogether suggested the formulation of a new Surrogacy Act which would extensively deal with this issue.
Each of the five provinces has introduced their own legislation to regulate surrogacy arrangements. One shall deal with each province separately:-
The Surrogacy Act in Victoria leaves both expressions undefined. It distinguishes the two, only by penalizing various forms of commercial arrangements. Although it may apparently seem that the law approves of altruistic agreements but when read with other legislations, it is made clear that such practices are discouraged.
As far as matters of payment are concerned, a strict reading of Section 30(2) of the Act, makes it seem as though refunds for necessary medical expenses will amount to illegal consideration. Thankfully, on a more lenient interpretation (as suggested by the Waller Report) reimbursement of such indispensable expenses have not been labelled as unlawful payments.
Australian Capital Territory
Section 3 of the Act defines only a commercial substitute parent agreement. It criminalizes only those entering into a commercial agreement, leaving altruistic arrangements without any penalty. Moreover, punishment provided for advertising these facilities on a commercial level is far harsher than for non-commercial purposes.
Therefore the underlying message is that although altruistic arrangements are not explicitly barred, it is definitely not appreciated. Other domestic legislations make this amply clear.
The Act distinguishes the two only by making commercial arrangements an offence and not altruistic arrangements. Similar to other provinces, parties to an altruistic agreement face impediments to a successful completion of a surrogacy contract.
The legislation explicitly does not distinguish the two. The only difference is that Section 3(1)(b) of the Surrogacy Act has to be read in addition to the provision governing commercial agreements. No such joint construction exists for altruistic arrangements. The task of discerning the two types of arrangements has been left to the judiciary.
No distinction is made between the two arrangements. The only difference is that in commercial surrogacy arrangements, stress is given that a surrogate shall not receive any payment or reward for the service so provided, while no corresponding provision exists for altruistic arrangements.
It lacks an integrating national policy in this regard. Each state has taken upon itself to frame laws to regulate surrogacy arrangements. Among the states which allow surrogacy arrangements, commercial agreements are criminalized leaving altruistic agreements unobstructed.
Further, in England, Australia and to a certain extent in the USA, one has always associated altruistic surrogacy arrangements to be between close family friends or relatives. It is based on the presumption that they being the closest in relation to the infertile couple, shall probably bear the child out of love and true concern. It is often thought that with strangers, the probability of money being the only alluring factor can be quite high. Speculators feel that this can then eventually lead to a trend edging towards commercialization in this sphere. Therefore to curb such tendency, arrangements within the close family circle are encouraged.
At present, National Guidelines have been drafted by an Expert Committee to regulate such activities, anticipating that surrogacy agreements might be favoured as a viable option to fulfil the wishes of infertile couples.
The National Guidelines for the Accreditation, Supervision and Regulation of Assisted Reproductive Techniques (ART) clinics in India, like the statutes in the three other nations, have not defined either a commercial or an altruistic surrogacy arrangement. Nowhere has it even used the term altruistic. These Guidelines have only stated that the ART clinics shall not play a role in commercial surrogacy arrangements.
With regard to payments, the National Guidelines are definitely not averse to such being paid to the surrogates. In fact it is liberal, as it provides for a clause where liability is imposed on the infertile couple to bear the genuine medical expenses. Surprisingly, unlike any other country, it even entitles the surrogate to receive compensation for the service she provides. It provides scope for a private financial agreement to be drawn up between the parties in such circumstances. Strictly enough, the Guidelines require a documentary evidence of such monetary agreements i.e. an agreement for genuine expenses or compensation to the surrogate].
Moreover, the National Guidelines have taken a startlingly different view as compared to other nations, with regard to the issue of participation of close friends and relatives in altruistic arrangements. It sternly prohibits close members of the infertile couple from acting as surrogates. It does not even permit donation of sperms or ovum by such persons as the ART clinics are responsible for obtaining these gametes from authorized places.
Thus the National Guidelines have tried to address most of the vital aspects of any surrogacy agreement.
As seen above, distinguishing the two arrangements has been deliberately or non deliberately avoided by many legislators. This is probably because the legislators did not foresee the complications which could arise in the future. More so because the two types are not strikingly different from one another. Therefore the premise of separating commercial from altruistic arrangements, by itself is faulty. It is very difficult to ascertain when altruistic arrangements become commercial in nature and vice versa. The usual approach of connecting money with commercial surrogacy arrangements and its absence with altruistic arrangements have becoming increasingly confusing . It could be very possible that in commercial arrangements, the surrogate might be bearing the child out of a genuine intention of the heart, while altruistic arrangements could result out of sheer emotional coercion.
As far as payments are concerned, there should be no aversion to the concept of payments made to the surrogate for her services. To use her reproductive capabilities without paying her, can only reconfirm the notion of forcing women to believe that they are nothing better than natural incubators. The deficiency that lies in the various legislations is the non- specification of an upper limit of the amount to be received by the surrogate. Once the law determines it, chances of commercialisation shall substantially minimize if not be eliminated.
While analysing which of the two types is more exploitative, arguably, in cases where known persons are involved, there are increased chances of emotional exploitation. This could be far worse than commercial exploitation of oneís reproductive capabilities. Sometimes friends and sisters inevitably do take up such a role, as family pressure becomes unavoidable. In such circumstances the Indian Guidelines seem to be the most appealing, since it provides for surrogacy arrangements which are completely free from family dynamics.
Various enactments have dealt with the two types of surrogacy arrangements. The striking similarity between them is the ambiguity in trying to define the two. The general trend has been to associate payments with commercial arrangements, presuming that altruistic arrangements involve only purity of intention.
End of Question 1
Question 2 : To whom shall the parental rights be conferred once the child is born?
With radical developments in reproductive sciences, it is imperative to consider the certain potential consequences it might entail. As stated before, in surrogacy arrangements at least three women can prove their maternal link to the child so born. She can be the genetic, gestational or the social mother. As the concept of motherhood has been sundered with the advent of medical advancement, the law must clearly pinpoint the legal mother so that she along with her husband can be conferred the parental responsibilities in respect of the child.
The measures taken by these countries are as under:
The complications regarding motherhood has been simplified. The 1990 Act clarified this issue by declaring the surrogate to be the legal mother of the child. Therefore as opposed to the terms of the contract, if she has a change of heart by wanting to keep the child for herself, she cannot be forced by the Commissioning parents to relinquish the custody of the child. In a different set of circumstances, where the Commissioning parents clamor for their parental rights over the child (without any opposition from the surrogate) the solution is provided in Section 30.
Section 30 of the 1990 Act provides for “parental orders”. This order enables the Commissioning parents to adopt the child once born. Initially, certain conditions have to be complied with before the parental rights are granted to them. Once the court grants the parental order, all the parental responsibilities are conferred to them. This then automatically extinguishes the rights previously exercised by the surrogate mother.
The legislation in each province concur on one point i.e. be it a commercial or an altruistic surrogacy arrangement, the legal mother is the surrogate. In no circumstances can the Commissioning parents coerce her to surrender her maternal rights over the child, if she chooses to keep the child.
The solution to this sensitive problem has been left to the Judiciary of those states which allow surrogacy arrangements.
It started as early as 1986. The Kentucky Supreme Court while deciding Surrogate Parenting Associates v. Commonwealth ex rel Armstrong held that the surrogate ought to be granted the custody of the child, making her the legal mother. This was not followed by the New Jersey Supreme Court in ëBaby Mí case where the Commissioning parents were given custody of the child on the basis that they were the legal parents of the child.
In a few years, the California Supreme Court seemed to revolutionize the concept of parenthood in Johnson v. Calvert. It sternly held that the custodial rights of the child was to be conferred to the woman who first intended to bring about the birth of the child and intended to raise as her own. This view was reiterated by the California Supreme Court in “In Re Marriage of Buzzanca”. Therefore, California seems to be the most suitable forum for any Commissioning Parents who wish to enforce surrogacy agreements and assert their parental rights.
The nation does not oppose single men, unmarried women or homosexual couples from choosing surrogacy arrangements as the only means to have a child. In these circumstances they are automatically granted the parental rights.
It has been realized that though surrogacy arrangements are a viable option for infertile couples, it involves strong human emotions. This highly emotional issue, has been tactfully dealt with while attempting to decide on whom, the parental rights should be conferred, so that the welfare of the child is not undermined.
The National Guidelines have elaborately laid down the suggested law. It does not consider the surrogate to be the legal mother under any circumstances. It explains that in cases where the surrogate is bearing a child with whom she has no genetic relation, the birth certificate shall have the name of the genetic parent. Therefore, if the genetic parents are the Commissioning parents, who have contributed their gametes for the unborn child, they shall be automatically recorded as the legal parents, if DNA tests prove the same. An adoption in such circumstances is not required.
In circumstances where the surrogate donates her ova, the child shall have to be legally adopted by the infertile couple. Only then can they become the legal parents which shall be appropriately recorded in the birth certificate of the child.
In cases where the genetic material is provided by third party donors, the birth certificate shall initially record the names of the genetic parents. The infertile couple only after adoption shall be considered to be the legal parents of the child for all purposes. The birth certificate after adoption will then automatically show them as the legal parents.
To avoid misunderstandings, the National Guidelines have strictly stated that once the child is formally adopted by the Commissioning parents, the third party donors and the surrogate must surrender all parental rights as regard the child, in writing.
The National Guidelines have been liberal enough to allow unmarried women, homosexual couples from seeking parental rights in case they resort to surrogacy arrangements to have a child of their own.
In these kinds of sensitive issues ,there is no right or a wrong approach. Countries which have labeled the surrogate as the legal mother is correct in its own way, as it is thought that she is most suitable to fulfill the role as the mother, as between all the other potential mothers and the baby. Similarly when other countries consider the commissioning parents to be the legal parents of the child, it is backed by a purpose too. Legislations of different countries though dealing with the same subject matter differ, as they indirectly reflect the popular demand of the public in their country.
One can only shudder when the logic supporting a legal provision, seems inadequate. For example, case laws in U.S.A. which proclaim the commissioning mother as the legal mother of the child, on the logic that as she is the one who first conceived the idea to have a child, has the prerogative of being the legal mother too, shall need reconsideration. In such circumstances, should one interpret the consent of a woman to act as a surrogate only to mean an approval to act as a baby producing machine? Does nurturing a child inside the womb, make a woman any less of a mother than the one who intended to have the child?
Therefore, one feels that the surrogate ought to have the right to be the legal mother of the child, first. This is because of the unexplainable bond that she shares with the child. She should never be forced to give up the custody of the child especially one she strongly wishes to keep the baby for herself. On the contrary, if she voluntarily wishes to relinquish the custody of the child in favour of the commissioning parents, there should be no hesitation in giving them the status of legal parents. It is necessary that domestic legislations envisage such possibilities and be accommodative of such conflicting interests.
End of Question 2
Question 3 : Whether surrogacy agreements have the propensity to exploit women having weaker bargaining power?
Under this heading it is to be considered whether payments is the only factor which induces a surrogate to undertake risks which at times could run contrary to her best interests. Some believe that only commercial arrangements are exploitative by nature while altruistic arrangements are considerably less abusive. While trying to gauge the level of exploitation in each type of arrangement, it is necessary, to take into account both economical and emotional exploitation, in oneís deliberations.
The efforts taken by these countries to curb this aspect are as follows: -
The 1985 Act has made such agreements unenforceable. Hence it implies that the Court will not allow adjudication upon issues of payments. This may lead people to believe that as surrogacy arrangements are devoid of legal recognition, underground arrangements will not be illegal. Once this happens, the chances of exploiting the surrogate increases. Therefore it is wiser to encourage these arrangements in the open allowing voluntary agencies to participate by providing the necessary counseling, legal and medical assistance. Two such agencies that are working with this objective are the Childlessness Overcome through Surrogacy (COTS) and Surrogate Parenting Centre (SPC).
Interestingly, the Warnock Committee has recommended that fertile couples should not be allowed to enter into a surrogacy arrangement as a matter of convenience. This is to prevent fertile women from buying a womb because they might feel there is a substitute available, who can undertake her reproductive responsibilities in exchange of a paltry sum.
None of the five provinces have dealt with this issue in their statute due to lack of empirical data.
There are divergent views on this issue. Justice Wintersheim of the Supreme Court of Kentucky in Surrogate Parenting Association v. Commonwealth ex rel Armstrong observed there was a probability that poor women of third world countries be made victims of such exploitation. However, this argument did not hold sway with the California Supreme Court in Johnson v. Calvert which held that due to a lack of empirical data, no such conclusion can be drawn.
The National Guidelines have laid down safeguards so as to eliminate all possible forms of exploitation. The chances are minimized as the entire arrangement is under the strict vigil of the ART clinics. Further these clinics are under the supervision of an Accreditation authority. This authority makes it adequately clear that not only is it non supportive of commercialization but wishes to be non meddlesome in the financial arrangements as between the parties. By these rules, the Guidelines imply that friction arising out of these monetary arrangements are to be settled privately. While other type of grievance (i.e. dissatisfaction with the service provided) shall be addressed by the Complaint Cell as laid down by the National Guidelines. All these measures diminish the chances of exploitation, as surrogacy arrangements in India are only allowed to proceed under the supervision of ART clinics.
Further, the National Guidelines are not hostile towards additional payments made to the surrogate. This is an appreciable step. This is because it is normally presumed that underpaid surrogates are more susceptible to exploitation. Therefore this allurement can be controlled if a surrogate is sufficiently paid.
A judicious step has been taken by preventing relatives and known members from acting as surrogates. This shall substantially minimize the scope for emotional coercion by family members.
In addition to the above, the Guidelines specify that surrogacy arrangements are a viable option only for infertile couples or for those whose pregnancy can prove to be hazardous. Such arrangements shall not be allowed under any other circumstances. This is analogous to the recommendations made by the Warnock Committee.
Therefore the National Guidelines have provided ample protection to the surrogate who is the vulnerable party in such arrangements.
It is understandable that strict regulations can provide adequate safeguards from exploitation of surrogates. Apart from these regulations, the issue of payments needs to be thought out on a more liberal plane. It must be appreciated that a sufficient amount of compensation in addition to the refund of necessary pregnancy related expenses could prevent their exploitation.
Yet another aspect which most of us have overlooked is the vulnerability of the commissioning parents. There could be circumstances where the surrogate could dictate her own terms for the service provided. Therefore until there is more specific data in this regard, one cannot conclusively suggest the mechanisms to curb exploitation.
End of Question 3
Question 4 Whether the welfare of the child is of paramount importance in surrogacy agreements?
One can never disagree that the prime concern in surrogacy agreements should be to secure the welfare of the unborn child, leaving all other facets secondary.
In the United Kingdom, Australia and the USA, it is considered well settled that the welfare of the child of paramount importance. For instance, in the United Kingdom, Section 30 of the 1990 Act provides for a guardian ad litem who plays a crucial role in ensuring that the interest of the child is protected. Similarly both Australian and American laws have taken affirmative action in this regard. For example, a problem arose in the case of a child who was born deformed. Neither the Commissioning parents nor the surrogate mother wished to adopt it. This case was decided by the Michigan Supreme Court, more famously known as the ëBaby Doe caseí in 1983. The Court held that in such cases, the genetic parents would be liable to adopt the child.
The National Guidelines have a separate segment outlining the rights of the child. Once born, he or she is treated as the legitimate child of the infertile couple. In order to avoid psychologically devastating consequences, the Guidelines provide for non-disclosure of the identity of third party donors especially if the children are under 18 years of age. In case of inquisitive children this restriction has been relaxed, to prevent any form of identity crisis.
Moreover, the National Guidelines lay down that before allowing a woman to be a surrogate, the ART clinics must certify that she is medically fit to undertake such a responsibility. The clinics are to take special measures to ensure that she is not an AIDS carrier. This has been done to prevent congenital diseases.
Even while using donated sperms and ova, HIV positive tests are undertaken to ensure non transmission of this disease to the unborn child. Moreover while creating an embryo under the IVF method, the age limit for the donors have been prescribed. This is to provide developed gametes for the purpose of giving birth to a healthy child.
The Guidelines further lay down that a HIV positive woman shall outrightly not be refused treatment by ART clinics. Instead, would be redirected to appropriate counseling service centres where she shall be informed about the potential hazards it may cause to the unborn child].
The best interest of the child must always be the most important consideration in surrogacy agreements. Only in situations where HIV positive couples wish to avail of surrogacy arrangements, by providing their own gametes for this purpose, it should be prohibited. For this shall prove to be harmful, to both the surrogate and the unborn child. In these circumstances, counseling should be mandatory and infertility treatment should be allowed like that of any other patient. It is a moral imperative to treat and counsel such couples before they are allowed to procreate. These measures are absolutely necessary for the protection of the health of the unborn child.
End of Question 4
Question 5 : Should surrogacy arrangements be enforceable in the Courts of Law in various nations ?
Normally, when an infertile couple opts for a surrogacy arrangement, it is desirable to have a contract between the Commissioning parents and the surrogate mother. Once the duties and the responsibilities are unequivocally spelt out, it prevents misunderstandings in the future. The complication starts the moment one party disrespects a provision in the contract. The crucial question which arises then is whether the aggrieved party can seek to enforce the terms of this contract by resorting to court proceedings. Before one starts evaluating the role played by the Court in adjudicating such matters, it is pertinent to remember that one must not confuse a surrogacy contract with an ordinary commercial contract. It is because commercial contracts are governed by an independent statute. A surrogacy contract, though a contract, needs to be distinguished from other commercial contracts. It means, that surrogacy contracts are to be regulated by a statute independent of that countryís domestic commercial contract act. Therefore the rules of enforceability, settlement and relief must be different from the types of relief claimed under commercial contract act.
Keeping this in mind, different countries have reacted in different ways.
Section 36(1) of the 1990 Act read with Section 1A of the 1985 Act have clearly provided that such contracts are not enforceable in law. This provision applies to both altruistic and commercial surrogacy arrangements.
All the provincial legislations unanimously uphold that surrogacy agreements shall be unenforceable in the courts of law.
Each state has handled this issue from its own legal perspective. While some states have held the agreements to be unenforceable, others have taken a contrary view. For example California (which is probably the most progressive state in this field) has given effect to such agreements.
The Indian Guidelines do not expressly mention the necessity of surrogacy agreements. It provides for necessary measures to be undertaken by the licensed medical clinics which are further subject to the strict supervision and regulation of an accreditation authority.
[In case a person is aggrieved with the treatment provided by these ART clinics, a Complaint Cell has also been established, to deal with the same].
Uniquely, these Guidelines have involved insurance companies for the purpose of reimbursement of the costs incurred by the commissioning parents, if the surrogate does not deliver the child.
Since the subject matter of the agreement is a child, surrogacy arrangements should not be treated like just another commercial agreement. It is possible that in spite of the well outlined roles and responsibilities of each party to the agreement, the surrogate may not realize the possibilities of the tie she may develop while harvesting the baby. In these situations, it is very human of her to retract the promise previously made. Eventually if the matter is dragged to court it can prove to be harsh on her. Quite rightly, others might say the same for the Commissioning parents when they are deprived of their parental rights. Surely, there is a difference in the degree of attachment of the child. For one wishes to have the child because it was her creative idea first, as opposed to the other who created the child in her womb. Therefore, it seems to be wiser to disallow court intrusions in such private arrangements. Plus Court interference brings in a lot of unwanted publicity along with it. To keep the sanctity of such arrangements, it is necessary that these special agreements be amicable settled under a separate body to be provided by the statute governing it.
With special reference to the Indian Guidelines, involvement of insurance companies is definitely not appreciable in this sphere. If permitted, the entire focus would shift to the financial settlements between the two parties. This would entail commodification of the baby, which is not advisable under any case. In such ëmarket conditionsí, as created by the insurance companies, the commissioning parents would play the role of the consumers while the surrogate would be in effect selling her services. Hence, with the intrusion of the insurance companies, the thought that the infertile coupleís satisfaction would be given priority over the welfare of the child, is extremely undesirable.
End of Question 5
Question 6 : Should surrogacy arrangements be regulated under law?
Laws of most nations have outlawed commercial surrogacy arrangements, leaving the altruistic agreements unregulated. This has proved to be detrimental to the interests of the parties because while commercial arrangements are absolutely banned, altruistic arrangements have no rules governing them. People who shall then avail of these arrangements cannot obtain the optimum benefit out of it. For they will not know to whom or where to go for medical or legal assistance. Moreover at every step, they will be under a constant fear of breaking the law, as the rules by which they are governed are ambiguous in nature. Therefore it is necessary for the statute to explicitly lay down regulations to protect the varied interest of all.
The necessary measures taken by each of these countries are as follows:
The 1990 Act has laid down the foundations for a regulating authority, which shall grant licenses to agencies involved with the usage of embryos in experimentation with gametes, outside the human body. The Act as it stands today regulates only the medical treatment of the consenting surrogate. It does not supervise the overall working of the surrogacy arrangements.
The Warnock Committee has suggested 3 methods of regulations: -
- By having all such medical clinics licensed by the 1990 Act
- By setting up a special licensing authority for the regulation of surrogacy arrangements
- By registering such clinics under the UK Health Department which would have to draw up a separate Code of Practice in this regard
The implied legislative acceptance of the practice of altruistic surrogacy arrangements unfortunately does not reflect in the efforts taken by the legislators to regulate such practices. This is because the legislators have half heartedly approved altruistic agreements without overtly providing for rules governing it.
The National Guidelines have been drawn to regulate ART clinics to deal with surrogacy arrangements. The guidelines emphasize that it is mandatory for medical clinics (operating in this sphere) to acquire a license before they start functioning. A list has been provided specifically, enumerating the types of clinics which require compulsory licensing]. Furthermore all such clinics are subject to a Code of Practice as under Para 3.2. Further the guidelines strictly lay down that new ART clinics are to operate only after they obtain a temporary license, subject to renewal after every three years as under Para 3.14.6 of the National Guidelines. Therefore it means that all existing clinics have to compulsory apply for a license to carry on such operations. In case of violation of the above rule, the State or Central Government are authorized to shut down the erring clinic as under Para 3.14.8 of the National Guidelines.
The Guidelines ensure that care is taken right from the stages of diagnosing, counseling and informing the patient till stage of aiding them in the selection of an appropriate infertility treatment as per Para 3.4 of the National Guidelines.
The guidelines have even structured the formation of the accreditation authority under Para 3.15 of the National Guidelines, which is responsible to The Ministry of Health and Family Welfare, Government of India.
Therefore ample care has been taken to regulate surrogacy arrangements so that it is given its due recognition under the law.
While providing for rules and regulations, care must be taken to ensure that they are not so stringent, so as to indirectly encourage underground surrogacy arrangements. Harsh rules can have an adverse effect on the parties to the arrangement. They shall then be forced to enter into private surrogacy arrangements thereby depriving themselves of the assistance of voluntary agencies working in this field. Therefore the rules and regulations must be accomodative enough to take the into account the interest of the parties.
Reproductive infertility has always put unwanted pressure on young couples, causing them much anxiety. With radical developments in the field of medical technologies, solutions to the problem of infertility have changed. Concepts such as surrogacy arrangements have shaken the foundations of predetermined parental roles and responsibilities. The optimistic streak is that certain developed nations instead of condemning such concepts have taken affirmative steps to legislate in this regard. Unfortunately, the mere existence of legislation is not enough. For example, hastily drafted laws consisting of ambiguous provisions create more problems than solve any. Therefore instead of letting ambiguity prevail, a well-structured legislation is an immediate necessity.
It may be suggested that an encompassive code of practice be drawn up which could probably govern all the crucial aspects of any surrogacy arrangement. This code must be binding on all parties. Further, the surrogate must have the right to reproductive autonomy, where she can independently decide when and for whom to procreate. Matters regarding payment that would inevitably rope in series of moral and social issues must be resolved in the backdrop of oneís societal values and the countryís legal advancement. The practice of surrogacy should never be set aside, instead be appreciated as the most viable option for infertile couples from this century.
End of Question 6
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