SURROGATE MOTHERHOOD – CHANGING PARADIGM IN INDIAN SOCIAL SCENARIO
In all cultures of the world, motherhood is something which is considered to lie at the heart of the meaning of love. The concept of a woman’s love for her children is viewed as the most powerful, ferocious, tender and unconditional love that exists. Motherhood for Indian women is a psycho-spiritual phenomena and not just a psycho-sexual one. This psycho-spiritual meaning of all the institutions of socialization, particularly marriage of which a child is the outcome, makes the Indian context different from other societies. The preparation for mother-baby interactions begin much before a woman actually attains motherhood . Now the term motherhood is expanded to the surrogate motherhood, which means that a women helps women i.e. if any women, couple cannot conceive on their own and want a baby , they now have modern technologies to allow them to have children . Some use medical treatments to overcome this situation , for some no help is available and surrogacy comes to the rescue . Need of surrogacy arises when woman is unable to carry a child due to failure of embryo to transplant, repeated miscarriages, hysterectomy or pelvic disorder, dangerously high blood pressure and heart or liver disease1 .
SURROGACY IN ANCIENT TIMES
Surrogacy was known and practiced in ancient times also . One of the first ancient references to infertility occurs in Genesis, when Jacob’s wife, like many of her Biblical peers, was unable to bear a child. After praying to God and begging her husband, she sends Jacob
“unto” her maid and then adopts the resulting child as her own2. In Jewish law, a childless couple falls within the category of personal suffering and there exists a clear obligation to assist them in every permissible way, as long as no one is harmed in the process3. The Catholic Church’s statement on assisted reproduction is clear: assisted reproduction is not accepted. The Eastern Orthodox Church supports medical and surgical treatment of infertility, and the Baptist, Methodist, Christian Science all have liberal attitudes toward infertility treatments. Islamic law encourages attempts to cure infertility, but only to the extent that IVF technologies involve the husband and wife.
In Hindu culture, surrogacy was known in the name of “Niyogi Pratha” in Mahabharta, Gandhari the wife of king Dhritrashtra conceived , after which she delivered a mass , these cells were put in a nutrient medium and were grown in Vitro till full term . Sage Gautama produced two children from his own semen , a son Kripa and a daughter Kripi, who were both test tube babies, like wise sage Bhardwaj produced Drona , later to be the teacher of Pandavas and Kauravas4 .
MEANING OF SURROGACY AND SURROGATE MOTHER
Surrogacy is a practice in which one women (the surrogate mother) agrees to bear a child for another woman or a couple (the intended parents) and surrender it at birth . This provides an opportunity for those woman who are unable to carry a child themselves to overcome their childlessness 5. Surrogacy is a method of reproduction whereby a woman agrees to become pregnant and deliver a child for a contracted party, she may be the child’s genetic mother or she may, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo.
SURROGATE MOTHER
According to Webster’s
METHODS OF SURROGACY
There are two methods of surrogacy:
(i) Partial Surrogacy: When the child shares the genetic features of surrogate mother and commissioning father The commissioning mother has no role in partial surrogacy.
(ii) Total Surrogacy: In this, IVF (In vitro fertilization) method is used . The gametes of both ( husband and wife) intended parents are implanted into the uterus of surrogate mother, as a result the child is the genetic child of intended parents.
TYPES OF SURROGACY
(i) Commercial surrogacy: The surrogate mother is paid over and above the necessary medical expenses according to a contract between surrogate and intended parents.
(ii) Traditional surrogacy : Surrogate mother is artificially inseminated with the sperm of intended father as sperm from a donor when the sperm count is low, In either case the surrogate’s own eggs are used.
(iii) Gestational surrogacy: In Gestational surrogacy the surrogate mother has no genetic ties to the off spring . Eggs and sperms are extracted from the donors (intended parents) and in vitro fertilized and implanted into uterus of the surrogate mother.
(iv) Altruistic surrogacy: In this method, surrogate is paid only the necessary expenses for bearing the child .
SURROGACY IN
In India, surrogacy started in small township of Anand , South Gujrat which has now emerged as a major center of surrogacy as highlighted by a number of fertility clinics offering their services to wealthy and issueless foreign couples. The number of successful surrogate deliveries in Anand is claimed to be the highest in the world. Wealthy couples make a beeline to Anand all the way from
THE ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION ) BILL 2010 – A BRIEF ANALYSIS
Commercial surrogacy though banned in several developed countries may soon become a reality in India through a bill to legalise commercial surrogacy which has been drafted by the Indian Council of Medical Research in short ICMR8 . The bill is called as the Assisted Reproductive Technology ( Regulation ) bill and Rules 2010 , in short known as ART . The draft bill consist of 50 sections and sub divided into 9 chapters . This bill is a document being awaited for almost a decade . It is a welcome step by the Ministry of Health and Family welfare ( MOHFW) and Indian Council and Medical Research ( ICMR) , although the Draft Bill attempts to incorporate many issues related to Assisted Reproductive Technologies (ART’s), it unfortunately carries on the vestiges of the drawbacks present in the National Guidelines on Accreditation, Regulation and Supervision of ART clinics in India9 .
Some novel measures that have been suggested in this Act are as follows:
A. SURROGACY AGREEMENT: The bill provides an agreement between surrogate mother , commissioning parents and the ART clinic which makes the smooth running of the surrogacy contract. According to section 20 of the bill and the rule 15 of THE ASSISTED REPRODUCTIVE REGULATION RULES 2010 the ART surrogacy arrangement will continue to be governed by contract amongst parties ,which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination , reimbursement of all reasonable expenses for carrying child to full term , willingness to hand over the child born to the commissioning parents . Form J is also mentioned for the agreement for surrogacy .
B. RIGHTS OF THE SURROGATE: The draft bill ensures rights to the surrogate mother according to section 34 of the ART bill as under10:
Right to physical integrity and bodily autonomy i.e. she cannot be forced to abort the foetus, go through foetal reduction or made to follow a certain diet.
Right of no sex selection , no antenatal testing even with the consent of the surrogate.
Right to make decisions concerning reproduction free of discrimination, coercion and violence .
Right to receive monetary compensation from the commissioning couple or individual , as the case may be , for agreeing to act as surrogate .
Right to seek all medical treatments and procedures for her health and in relation to the concerned child .
Right to receive certificate by the person or persons who have availed her services , stating that she has acted as a surrogate for them
Right not to disclose the confidential and private information about the surrogacy to any one other than the central database of Indian Council of Medical Research , except by an order of competent court .
Right to have local guardian being appointed by the commissioning foreigner couple seeking surrogacy in India for taking care of the surrogate during and after the pregnancy.
C. RIGHTS AND WELFARE OF THE CHILD
Clause 35 (1) of the draft ART bill states that “ A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple , having been born in wedlock , with the consent of both the spouses , and shall have identical legal rights as a legitimate child born through sexual intercourse” . The draft bill makes provision for the child to seek information about donors and surrogates on attaining 18 years of age . Clause 36 (1) of the ART bill 2010 states that “ A child may upon reaching the age of 18 , apply for any information excluding personal identification, relating to his / her genetic parents or surrogate mother”.
D. SEX ELIGIBILITY: The bill is liberal by using the phrase married or unmarried couple as eligible for ART’s , it does not include within its ambit people who are not heterosexual and their accessibility to ART’s . The bill clearly defines “ unmarried couple” as a man and a woman , both of marriageable age , living together with mutual consent but without getting married (clause 2 dd of the ART bill).
E. BIRTH CERTIFICATE: According to clause 35 (7 ) and 34 (10) of the ART bill , the birth certificate of a child born through the use of assisted reproductive technology shall contain the name or names of the parent or parents, as the case may be, who sought such use i.e. commissioning couple. This implies that the name of the couple seeking ART or commissioning the surrogacy will be written on the birth certificate. Thus the birth certificates bears the name of the genetic / gestational surrogate .
F. CERTIFICATES BY FOREIGN COUPLE : According to section 34 (19) foreign couple seeking surrogacy in
SURROGACY AND JUDICIAL RESPONSE
The case of Baby Manji Yamada v. Union of India11 concerned production/custody of a child Manaji Yamada given birth by a surrogate mother in Anand, Gujarat under a surrogacy agreement with her entered into by Dr Yuki Yamada and Dr Ikufumi Yamada of
Thereafter was in the news the Israeli gay couple’s case12 The gay couple Yonathan and Omer could not in
Again similar case is still pending in Supreme Court where a German couple Mr. Jan Balaz13 and his wife is trying to take their twins back through adoption with the due permission of Hon’ble Supreme Court .
CONCLUSION
Apart from inconsistencies in the document , a larger concern emerges from the outlook from which it approaches the issues . Everything that is medically possible should not necessarily be legally permissible14 . Law is an instrument of social engineering and must be developed with consideration for all sections of society , especially those that are more vulnerable and marginalized , to prevent any kind of exploitation . Since the draft bill seems to have been prepared mostly by people from medical fraternity who are practicing ART’s , it appears to aid the growth of the business of ART’s both within and outside the country rather than safeguard the health and interests of the women on whom these technologies are applied . The moral issues associated with surrogacy are complex and unsolved . This includes the criticism that surrogacy leads to commoditization of the child, which breaks the thread of love between the mother and the child15, interferes with natural conditions and leads to exploitation of poor women in under developed countries who sell their bodies for money , so there should be provision for bane on the moral exploitation of surrogate mother .
This paper is an effort to point out the limitations in the draft bill so that they can be rectified and the suggestions incorporated for the development of a pro – people and pro women legislation .
Keeping in mind the above mentioned concerns, before finalizing the draft bill , a wider debate across the country be organized at various levels and regions and their responses be incorporated, public hearings in different parts of the country with active involvement of women’s and health movements be organized and comments and suggestions be considered very seriously in the interest of the health and well being of the women of this country .
SUGGESTIONS
I recommend the following suggestive points in the bill for its smooth implementation :
RIGHTS AND WELFARE OF THE CHILD :
Intended Parents Should be donor : It will be best in the emotional interest of child that one of the intended parents should be a donor as well because the bond of love and affection with a child primarily emanates from biological relationship , also the chances of child abuse will be reduced.
Risks to the offspring : There is no provision in the bill about the risks occurring to the offspring whereas a study conducted between May 2001 and April 2004 at the New York University showed that intrauterine hormonal milieu may impact the fetal and infant stages of children conceived by ART , moreover first IVF twins born at AIIMS revealed that the children born through IVF weighed only 1.4 kg which clearly shows that children born through ARTs are almost under weight as compared to normal children and 70% more likely to be premature ( born before 37 weeks ) and more than twice as likely to be born before 32 weeks, so there should be prompt provision as to minimize the above mentioned risks to the offspring16 .
Place of information: The draft bill makes provision for the child to seek information about donors and surrogates on attaining 18 years of age , but at the same time it excludes information regarding personal identification and only in some cases ( medical reasons ) allows disclosing the information with prior consent of the donor or surrogate . Clause 36 (1) of the draft bill states that “ A child may upon reaching the age of 18 , apply for any information excluding personal identification , relating to his / her genetic parents or surrogate mother” but the document does not make it clear where the child needs to apply , since the semen banks , the ART clinics and the central database of the ICMR will keep the records of the donors and the surrogates , so it is must and mandatory to have a provision in the bill about the place and person from whom the information can be collected about the surrogate if needed by the child.
Right of physical, mental and social welfare: There is no section in the draft bill which talks about the physical, mental and social welfare of the child i.e. the words physical , mental and social are not written anywhere in section 36 of the draft bill whereas it is necessary to mention some prompt measures about the physical ,mental and social welfare of the child, moreover the only points mentioned are those granting legitimacy to the children born and the right of the child to have non identifying information about his / her genetic parents. Special measures need to be taken to ensure welfare of the child and to take into account the age and health and ensure that the intended parents are of appropriate age and would be able to raise the child till he / she reaches majority.
RIGHTS OF THE SURROGATE:
Age: The draft bill must specify its stand regarding the age of surrogate mother because in clause 26 (3) of ART bill the minimum age is described as 21 years but rule 4.7.1 says that the donor should be healthy women in the age group of 18 – 35 years , so the above discrepancy in clause 26 (3) and rule 4.7.1 should be removed
Payment To The Surogate: There is no clarity on financially compensating the surrogate , firstly according to form J of ART bill , on one hand it seems that the amount received by the surrogate will be mutually decided among surrogate and the intended couple , on otherhand semen bank sources out the surrogate, so there should be clear provision about how much amount will be paid to surrogate and to the semen bank so that surrogates from poor financial condition can get proper compensation and cannot be exploited .
Health Risks Of Surrogate : Section 26 (8) of the Bill permits a woman to donate her eggs six times in her life, at intervals of three months, which is hazardous for her health as the time period of 3 months is too early for a woman to start with hormonal injections for the creation of eggs therefore this time period should be increased at least upto 6 months so the surrogate will become physically strong to undergo medical procedure , now proceeding further section 34 (5) states that woman may act as a surrogate for three successful births in her lifetime, including a maximum of three attempts at pregnancy for a particular couple , this takes the number of times for surrogate to undergo IVF cycles , thus jeopardizing her physical and mental health so a provision stating a gap of at least 2 years should be made for a women to become a surrogate mother .
Confidential Information: On one side according to section 34 ( 12 ) of the ART bill 2010 all the information about the surrogate shall be kept confidential and information about the surrogacy shall not be disclosed to anyone and on other side in section 34 ( 17 ) it is stated that the surrogate mother shall be given a certificate by the persons who have availed her services , whereas instead of giving or taking any certificate these records should be strictly kept in security and these should be disclosed only on order of the competent court because the
* Dr. Jaya Dadhich (Adv.)
NOTES AND REFERENCES:
1. www.surrogate motherhood.com
2. Genesis 16, Genesis 30, Bible
3. Joseph Schenker, “Religious Perspective,” in Surrogate Motherhood, International Perspectives, Portland: Hart Publishing, 2003.p
4. Concept of Niyogi Pratha : Dr. P.V. Kane
6. www.surrogate motherhood.com
7. www.indian surrogatemother.com
8. www.icmr.nic.in
9. http://lawcommissionofindia.nic.in
10. The Assisted Reproductive Technology(Regulation)Bill 2010
11. (2008) 13 Supreme Court Cases 518
12. JT 2008 (11) SC 150
13. (Union of
14. http://www.clraindia.org/include/ART.pdf
15. http://www.clraindia.org/include/ART.pdf
16. www.answers.com/topic/invitrofertilisation
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