Surrogacy: What are Ethical and Legal Issues?

By Ayush Chandra 12 Minutes Read

Introduction:

Surrogacy introduces a record in which a woman brings a pregnancy “for” different couples. Several infertile couples from all across the globe reach India where practical surrogacy is lawful. Although this system seems to be profitable for all people involved, there are several sensitive matters which need to be directed by thoughtfully written regulations to preserve the powers of the surrogate mother and the proposed parents.

Assisted Reproductive Techniques:

The always-rising currency of impotence society over has to lead to the improvement of assisted reproductive techniques (ART)[1]. Here, surrogacy appears as an option when the infertile woman or couple is not capable of reproduction. Surrogacy is an agreement where a surrogate mother carries and gives a child for another couple or person. In gestational surrogacy, an embryo, which is fertilized by in vitro fertilization, is embedded into the uterus of the surrogate mother who supports and abandons the baby. In common surrogacy, the surrogate mother is infused with the sperms of the expected father artificially, thus giving her both genetic and gestational mother.

Business surrogacy is legal in India[2]Ukraine, and California though is restrained in England, many states of the United States and Australia, which distinguish only humane surrogacy In opposition, countries like Germany, Sweden, Norway, and Italy do not accept any surrogacy arrangements. India has converted a popular target of fertility tourism. Each year, couples from outside are interested in India by so-called surrogacy businesses because payment of the whole method in India is as more limited as one-third of what it is in the United States and the United Kingdom (10-20 lakhs).

Is Surrogacy Profitable for All?

At a look, surrogacy looks like an engaging option as a poor surrogate mother becomes so much required money, an infertile couple gets their long-desired biologically similar baby and the nation makes foreign money but the very understanding reveals the bitter truth. Due to the absence of usual legislation, both surrogate mothers and expected parents are anyhow used and the advantage is gained by agents and commercial agencies. There is no clarity in the whole system, and the risk of engaging in lawful dilemmas is there due to variable laws directing surrogacy in India.

Although in 2005, ICMR published guidelines for accreditation, administration, and management of ART polyclinics in India, those guidelines are frequently infringed[3]. The difficulty of trial edge childless couples is recognizable who not only have to cope up with the communication difficulty but sometimes have to struggle a long judicial encounter to get their child. Even if everything works great, they have to wait in India for 2-3 months for the fulfillment of customs after the delivery of the infant. The cross border surrogacy attends to difficulties in citizenship, community, parenthood, family, and the powers of a child. There are times where teenagers have rejected citizen of the country of proposed parents and these outcomes in either a long judicial engagement like in the matter of the German couple with double surrogate children or the Israeli gay couple who had to know DNA testing to verify paternity or have a grim expectation in an orphanage for the kid. There are occurrences where the child given to the couple after surrogacy is not genetically linked to them and in service, is denied by the expected parent and has to give his life in an orphanage[4].

If we see in the difficulty of surrogate mothers, matters are even more serious and wrong. The poor, uneducated women of rustic background are usually sold in such transactions by their spouse or agents for collecting easy money. These women have no claim to choose their bodies and life. In India, there is no requirement for mental screening or juridical counseling, which is necessary for the USA. After recruitment by commercial means, these women are turned into hostels for the entire term of pregnancy on the appearance of receiving antenatal stress.

The real purpose is to supervise them and to withdraw any cultural shame of being outcast by their society. These women fill the whole occupation of pregnancy suffering about their home and children. They are authorized to go out just for antenatal meetings and are given to reach their people only on Sundays. The most severe part is that in the matter of an adverse result of reproduction, they are improbable to be paid, and there are no terms of support or post-pregnancy medicinal and psychiatric relief for them. Rich professional women who do not require taking the problem of effecting their pregnancy are resorting to using surrogate mothers. There are several ethical and noble anxieties regarding surrogacy, which has shifted more of a commercial game, and there is an important requirement for framing and implementation of rules for the parents and the surrogate mother. [5]

Helped Reproductive Technology Legislation:

The Indian government has outlined legislation, former drifted in 2008, subsequently raised as ART Regulation draft bill 2010[6]. The proposal is yet pending with the Government and has not been granted in the Parliament. The recommended law has received the consideration of different features including concerns of expected parents and surrogate mothers. The submitted draft needs to be accurately considered, and its moral and good character should be publicly discussed by social, legal, medical personnel, and the nation before any law is framed.

The bill recognizes surrogacy contracts and their legal enforceability[7]. The surrogacy arrangements are handled at par with other obligations under the Indian Contract Act 1872 and other laws appropriate to certain classifications of contracts. Both the pair/single parent and surrogate mother require to begin into a surrogacy arrangement including all issues, which would be lawfully enforceable. Some of the pieces of the advanced bill are that the government at national and state levels should be ordered to record and monitor the I.V.F. clinics and A.R.T centers, and a discussion should be designed to file grievances for cases against clinics and ART centers. The age of the surrogate parent should be 21-35 years, and she should not have abandoned more than 5 times including her kids. The surrogate mother would not be entitled to experience embryo transfer more than 3 times for the same couple. If the surrogate is a wedded woman, the permission of her husband would be needed before she may act as a surrogate to limit any legal or matrimonial conflict. A surrogate should be selected for STD, infectious diseases and should not have taken blood exchange in the last 6 months as those may create an unfavorable manner on the pregnancy problem. All the costs including the security of surrogate pharmaceutical bills and other reduced costs associated with pregnancy and childbirth should be tolerated by expected parents. A surrogacy arrangement should hold life assurance cover for surrogate mothers. The surrogate mother may also accept a financial benefit from the couple or person as the case may be for allowing to act as such surrogate. It is felt that to keep bad surrogate mothers from exploitation, banks should immediately deal with surrogate mothers, and minimum compensation to be given to the surrogate mother should be determined by law.

The ART clinics should not be permitted to display surrogacy for its clients, and couples should directly seek conveniences of ART Bank. The intentional parents should be lawfully obliged to receive the charge of the child/children irrespective of any irregularity in the child/children. Secretly should always be managed, and the claim to the secrecy of the donator as well as surrogate mother should be shielded. If a foreigner or NRI is attempting surrogacy, they should begin an arrangement with the signed guarantee of citizenship for the youth from their administration, and they should also select a local supervisor who would be constitutionally accountable for delivering consideration of the surrogate during and after the pregnancy till the child is abandoned to the foreigner couple or enters their country. Sex-selective surrogacy should be banned, and abortions should be administered by the Medical Termination of Pregnancy Act 1971. [8]


[1] Assisted reproductive technology (ART) is used to treat infertility. It includes fertility treatments that handle both a woman’s egg and a man’s sperm. It works by removing eggs from a woman’s body. The eggs are then mixed with sperm to make embryos
[2] Source Link.
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[4] Source Link.
[5] The Associated Press (2007-12-30) “India’s surrogate mother business raises questions of global ethics” Available from:   Source Link.
[6] Source Link
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[8]  Source Link.

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