Surrogacy is a method of
assisted reproduction that helps biological parents start families when they cannot
conceive naturally or artificial methods. Couples pursue surrogacy for
several reasons and come from different backgrounds.
There are two types of
surrogacy arrangements: gestational surrogacy and traditional surrogacy. In gestational surrogacy, an egg is removed from the biological
mother or an anonymous donor and fertilised with the sperm of the biological father
or anonymous donor. The fertilised egg, or embryo, is then transferred to a
surrogate who carries the baby to term. The child is thereby genetically
related to the woman who donated the egg and the father or sperm donor, but not
the surrogate. In a traditional surrogacy
arrangement, a surrogate becomes pregnant with the use of her own eggs. Indian
government legalised surrogacy in 2002 and from then gestational surrogacy is
practiced in India.
GUIDELINES FOR SURROGACY -
The ART clinic or Fertility
Hospital must not be a party to any commercial element in donor programmes or
in gestational surrogacy.
A surrogate mother carrying a
child biologically unrelated to her must register as a patient in her own name.
While registering she must mention that she is a surrogate mother and provide
all the necessary information about the genetic parents such as names,
addresses, etc.
She must not use/register in the name of the
person for whom she is carrying the child, as this would pose legal issues,
particularly in the untoward event of maternal death (in whose names will the
hospital certify this death?).
The birth certificate shall be in the name of
the genetic parents. The clinic, however, must also provide a certificate to
the genetic parents giving the name and address of the surrogate mother.
Surrogacy by assisted
conception should normally be considered only for patients for whom it would be
physically or medically impossible/ undesirable to carry a baby to term.
Payments to surrogate mothers should cover all
genuine expenses associated with the pregnancy. Documentary evidence of the
financial arrangement for surrogacy must be available. The ART centre should
not be involved in this monetary aspect.
A third-party donor and a
surrogate mother must relinquish in writing all parental rights concerning the
offspring and vice versa.
A child born through
surrogacy must be adopted by the genetic (biological) parents unless they can
establish through genetic (DNA) fingerprinting (of which the records will be
maintained in the clinic) that the child is theirs.
A prospective surrogate mother must be tested for HIV and shown to be seronegative
for this virus just before embryo transfer. She must also provide a written
certificate that (a) she has not had a drug intravenously administered into her
through a shared syringe, (b) she has not undergone blood transfusion; and (c)
she and her husband (to the best of her/his knowledge) has had no extramarital
relationship in the last six months.
No woman may act as a surrogate more than
thrice in her lifetime
A relative, a known person,
as well as a person unknown to the couple may act as a surrogate mother for the
couple. In the case of a relative acting as a surrogate, the relative should
belong to the same generation as the women desiring the surrogate.
A surrogate mother should not
be over 45 years of age. Before accepting a woman as a possible surrogate for a
particular couple’s child, the ART clinic must ensure (and put on record) that
the woman satisfies all the testable criteria to go through a successful
full-term pregnancy.
Surrogacy Rules
and Regulations in India
2002 – gestational surrogacy
allowed in India
2008- Commercial surrogacy
allowed
2012- India bars foreign gay
couples, singles from surrogacy
2016-Bill to Ban Commercial
Surrogacy Introduced In
Lok Sabha, Bill is still
under discussion.
No Visas to Foreigners
Wanting to Visit India For Surrogacy
Surrogacy Should Be Allowed
Only for Indian Couples, Government Says
2018- Central government's
women employees, whose children are born through surrogacy, will now be
entitled to maternity leave, according to an official order of the personnel
ministry.
Discussion on surrogacy bill
In August 2017, the
Parliamentary Standing Committee submitted its 102nd report on the Surrogacy
Regulation Bill, 2016.
The report gives a clause by
clause analysis of the Bill. In it, the Committee has pointed out certain
pertinent observations which clearly indicate the draconian nature of the Bill,
which is based on impractical and paternalistic presumptions.
Traditional
surrogacy or gestational surrogacy?
One of the biggest and most
prominent drawbacks is the contradiction in the Bill with respect to whether
traditional surrogacy is allowed or gestational surrogacy. Traditional surrogacy
is one where the egg of the surrogate mother and the intended father's sperm is
used to conceive the child with the help of IVF technology. It is the most
widely practised forms of surrogacy.
However, it has been widely
criticised due to the genetic link with the surrogate mother, which can lead to
several emotional complications for the parents. On the other hand, gestational
surrogacy – also referred to as "full surrogacy" – is the case where
the egg and sperm are of the commissioning parents and the surrogate mother
carries the fertilised egg of the intended parents. Thus, all of the genetic
material involved originates either from the intended parents or donors.
The Surrogacy Regulation
Bill, 2016, under Section 4 (iii) (b) (III) lays down: "No women shall act
as a surrogate mother or help in surrogacy in any way, by providing gametes or
by carrying the pregnancy, more than once in her lifetime."
The effect of this provision
under the bill is that the surrogate mother can provide her gametes and be a
surrogate as well. On this, the Standing Committee opined that, "… on the
one hand the Department asserts that only Gestational surrogacy is permitted
under the Bill, whereas clause 4(iii)(b)(III) advocates the concept of
Traditional Surrogacy. Thus, there is an apparent contradiction between the
Department assertions and provisions of clause 4(iii)(b)(III). The Committee,
therefore, recommends that the infirmity in clause 4(iii)(b)(III) be rectified
and the clause be amended suitably so as to spell out in unambiguous terms that
the surrogate mother will not donate her eggs for the surrogacy."
The object of the
Bill is to prevent exploitation, PREVENT COMMERCIAL SUROGACY-
However, this very basic provision if not
rectified can lead to the opening of a Pandora's box, especially since the
current Bill provides that surrogacy can only be performed by a "close
relative". The emotional stress and complications of having a close
relative as a surrogate, on the life of the surrogate child, surrogate mother
and the commissioning parents, is immeasurable.
Close relative as
a surrogate
The Committee has very
beautifully dealt with the issue of "close relative" being a
surrogate. The object of this provision was to curtail exploitation of the surrogate;
however, it would be unrealistic and very complex. The provision can be
analysed from two perspectives. First and foremost, infertility is a taboo in
India and for couples to come forward and undergo Artificial Reproductive
Technique ('ART') procedures and surrogacy procedures is frowned upon. In such
a situation, to force couples to only be able to have close relatives as
surrogates is arbitrary and violative of their basic reproductive rights.
Second, in the context of the
surrogate mother, it would be unfair for her to have to see the child
repeatedly, and the effect the same would have on the child is a different
matter of concern altogether. The Committee has recognised these factors and
suggested that "limiting the practice of surrogacy to close relatives is
not only non-pragmatic and unworkable but also has no connection with the
object to stop the exploitation of surrogates envisaged in the proposed
legislation.
"The Committee,
therefore, recommends that this clause of "close relative" should be
removed to widen the scope of getting surrogate mothers from outside the close
confines of the family of the intending couple. In fact, both related and
unrelated women should be permitted to become a surrogate."
Waiting period 5 years before commissioning surrogate-
ART and surrogacy
procedures have emerged essentially
due to increasing infertility in the society. The current Bill defines
infertility as the inability to conceive after five years whereas the previous
draft Bills, of 2008 and 2014, defined it as the inability to conceive after one
year.
The Committee has compared
this definition of infertility with that given by the WHO and suggested that
"since conception has many interplay functions, a five-year time bar would
add to the misery of already distressed intending couples. The five-year
waiting period is therefore arbitrary, discriminatory and without any definable
logic. The Committee, therefore, recommends that the definition of infertility
should be made commensurate with the definition given by WHO. The words 'five
years' in clause 2(p) and 4 (iii) (c) II, be therefore, replaced with 'one
year' and consequential changes be made in other relevant clauses of the
Bill."
This suggestion by the
Committee is based on the basic fundamental Right to Reproduction and the Right
to Privacy. How and when individuals wish to reproduce is their own personal
discretion. The government can impose limitations and set criteria, however,
the same should be rational and not arbitrary.
Other suggestions
The Committee makes several
other laudable suggestions, some of which take root from the previous ART Bills
and some which are based on reasonable analysis of the current social-medical
scenario. It suggested that 'compensated surrogacy' should be allowed and that
single parents and live-in partners should be allowed to commission surrogacy.
Provision of
breast milk banks
The Committee also
recommended that there should be a provision of breast milk banks for the
surrogate child, and a tripartite surrogacy agreement should be entered into
between the parties instead of separate agreements, to make the process easier.
The Committee has analysed
the bill in a very comprehensive manner and put forward suggestions which if
not incorporated would have a domino effect and push the entire surrogacy
industry underground, which in turn could lead to the exploitation of the all
the members of the surrogacy arrangement. Surrogacy is undertaken by
individuals to procreate and to found a family; the essence of that needs to be
understood and retained.
COMMERCIAL SURROGACY
The parliamentary standing committee on health after
examining the Surrogacy (Regulation) Bill 2016 has made a case to allow
surrogacy on payment of money on the grounds that "economic opportunities
available to surrogates through surrogacy services should not be dismissed in a
paternalistic manner".
The committee observed that if many impoverished women
are able to provide their children with education, construct home, start a
small business, etc. by resorting to surrogacy, there is no reason to take this
away from them. While it is mandated that organ, donation should be altruistic,
the committee has held that altruistic surrogacy was "extreme and entails
high expectation from a woman willing to become a surrogate without any
compensation or reward".
The Union Cabinet, chaired by Prime Minister Narendra
Modi, on 21 st March 18 gave approval for amending the Surrogacy (Regulation)
Bill, 2016 to provide for rights of child born through surrogacy to that of a
natural child or biological child and mandate for surrogacy clinics to be
registered with the appropriate authorities in the states.
The amendments also seek 16 months of extended
insurance coverage for the surrogate mother to cover all complications besides
a strict clause to safeguard the surrogate mother from exploitation, the Union
Health Ministry said.
Also, Assisted Reproductive Technology (ART) now has
been kept out of the purview of the Bill, it added.
The proposed legislation ensures effective regulation
of surrogacy, prohibit commercial surrogacy and allow altruistic surrogacy to
the needy Indian infertile couples, as per an official statement.
Once it becomes the Act, it will regulate the surrogacy services in the country, control the unethical
practices in surrogacy and prevent its commercialisation of surrogacy. It will
also prohibit potential exploitation of surrogate mothers and children born
through surrogacy.
HOW EVER THE FERTILITY CONSULTANTS AND PROSPECTIVE
CUSTOMERS ALL OVER INDIA ARE EAGERLY WAITING FOR THE LEGALISATION OF SURROGACY
BILL AS FOR THE TIME BEING THE TECHNOLOGY IS AT STANDSTILL.
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