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Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them. The intended parent(s) is the individual or couple who intends to take care of the child after its birth.
The successful birth of the world’s first baby conceived by in VITRO FERTILIZATION (IVF) and embryo transfer occurred on July 25, 1978, in UK.
India’s first scientifically documented IVF baby was, born on August 6, 1986 in Mumbai, through the support of the Indian Council of Medical Research. It started from a small town Anand, in Gujarat.
TYPES OF SURROGACY
There are four types of surrogacy
1. TRADITIONAL SURROGACY major types of surrogacy
2. GESTATIONAL SURROGACY major types of surrogacy
3. ALTRUISTIC SURROGACY
4. COMMERCIAL SURROGACY
TRADITIONAL SURROGACY is done via artificial insemination, with the surrogate using her egg and another man’s sperm.
(IT also know as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra cervical insemination) which is performed at a fertility clinic.
GESTATIONAL SURROGACY is done via In Vitro Fertilization (IVF), where fertilized eggs from another woman are implanted into the surrogate’s uterus.
(It is also know as the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is unrelated to the child (e. g. because the child was conceived using egg donation, sperm donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.
ALTRUISTIC SURROGACY – Altruistic surrogacy In other words, free surrogacy. Is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses). The surrogate mother can be one of close relative or friend.
COMMERCIAL SURROGACY – Commercial surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This procedure is legal in several countries including in India where due to high international demand and ready availability of poor surrogates it is reaching industry proportions. But some European countries & states commercial surrogacy is banned. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms “wombs for rent”, “outsourced pregnancies” or “baby farms”.
LEGAL ASPECT OF SURROGACY IN INDIA
Commercial surrogacy has been legal in India since 2002. India is emerging as a leader in international surrogacy. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate’s fee, and delivery of the baby at a hospital
Surrogacy in India is much simpler and cost effective than anywhere else in the world. There is an increasing amount of Intended Parents who choose India as their surrogacy destination. The main reason for this increase is the less costlier surrogacy and better flexible laws. In 2008, the Supreme Court of India has held that commercial surrogacy is permitted in India. That has again increased the international confidence in going in for surrogacy in India
“Surrogacy Agreement” is an agreement between the intended parent and the Surrogate, which expresses their necessity and fully volitional desire to opt for Assisted Reproductive Technique of Surrogacy, whereby the surrogate shall bear and gestate the embryo of the Intended Parents.
“Agreements” generally means the meeting of minds i.e. the parties to an agreement understanding each other’s intention at the point of entering into the agreement and there is a total synchronization of thought and action.
Since there is no specific law with regard to Surrogacy or Assisted Reproductive Technique in India, ‘Surrogacy agreement’ is the only foundation which governs the parties to Surrogacy. Therefore the Intended Parents are required to devote attention to have a perfect agreement in place, so that the surrogacy agreement is not held void or voidable in the court of law. As in every agreement, each party to a surrogacy agreement should express his/her purpose and situations, the need for surrogacy, free will of the surrogate, details about the surrogate and the terms on which the surrogate agrees to gestate the child etc. The terms chosen to be used in the agreement play an important role in determining the meaning accrued according to the context. Surrogacy agreement, being a very sensitive medical issue, should be drafted by a well experienced hand in the field. Since this agreement is a document which validates the birth of a child, it should be made sure that the agreement is be able to meet the worst twist of situations.
International Surrogacy Agreements
International Surrogacy Agreements can be enforceable in dual countries. With the Intended Parents coming from abroad and taking up surrogacy in India, it is important that the surrogacy agreement is compatible to the laws of India and the Home Land of the Intended Parent.
It is a quite a legal complex situation where the surrogate is an Indian National and the Intended Parents are from abroad. In such cases, the Intended Parents have to make sure that the surrogacy agreement is enforceable according to the laws of their land as well. These agreements shall have impact over the nationality of the surrogate child. Where this agreement is void or voidable according to the laws the land of the Intended Parents, the agreement shall go unvalued and the surrogacy agreement loses its sanctity. This questions the validity of the surrogacy arrangement as well.
CHECKLIST FOR EVERY SURROGACY AGREEMENT:
· Name and details of the parties to the agreement
· Why does the party to the agreement propose surrogacy
· Details about the surrogate
· What is the exact intention between the parties at time of entering into the agreement
· What is type of surrogacy? Gestational, traditional, altruistic, commercial?
· Is the question of motherhood resolved?
· What is the mentioning in the agreement about the paternity?
· Is the agreement as a whole and each clause individually valid as per the eyes of the Indian Law?
· Is the agreement a proper representation of your intentions?
· How is the compensation clause drafted?
· Does the agreement indicate clearly details with regard to the compensation in times of unexpected mis-happenings to the surrogate?
· Child no lien for dispute over the compensation
· Child’s custody with the Intended parents alone is legal custody
· How does the agreement strategize your paternity as there is no law recognizing surrogacy in India?
· What is the jurisdiction for the disputes arising out of the agreement?
CRITERIA FOR BECOMING A SURROGATE MOTHER
A potential surrogate mother must be in good overall health and be able to undergo a pregnancy with the minimum amount of risk to her own health. Some medical conditions will prevent a woman becoming a surrogate mother, for example, if there are any known medical problems which could lead to complications with the pregnancy, or put the woman at risk. Also those who are considerably overweight, are heavy smokers, drinkers or substance abusers are not suitable as surrogate mothers because of the associated risks both to the woman and the baby.
As the risks of illness and problems are much higher in the first pregnancy it is strongly recommended that surrogate mothers should have borne at least one child previously and preferably have completed her own family. This also means that the woman is able to give her “informed” consent to the arrangement, since a woman who has experienced pregnancy prior to the surrogacy arrangement has that knowledge on which to base her decision. Only in very exceptional cases should a woman who has not had a child herself consider becoming a surrogate mother. Because of the increased risk of chromosome abnormalities (eg. Down’s Syndrome) resulting from the eggs of an older woman, an upper age limit of 35 years is set for those donating eggs to other women. The same age should therefore apply to surrogate mothers whose own eggs are to be used, and because the risks of pregnancy increase with age, any woman over 35 should give careful consideration before deciding to become a surrogate mother.
Being a surrogate mother is an emotionally and physically demanding task. It is important that a woman considering this option has the backing of a partner, family or friends to provide emotional support and practical help throughout and after the pregnancy. Surrogacy is not something to enter into lightly. Careful consideration must be given to the medical, emotional, legal and practical issues, and to the implications of surrendering the child at birth. Thought must also be given to the effect on any existing children, the potential surrogate mother’s partner, family and friends.
RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY
 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 parent(s), etc. But such an arrangement should not be for commercial purposes.
 A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
 A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
 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 various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
 Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
 The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
 Right to privacy of donor as well as surrogate mother should be protected.
 Sex-selective surrogacy should be prohibited.
 Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
ADVANTAGES OF SURROGACY
 For a woman who can’t conceive, surrogacy creates a chance for her and her partner to parent a child who is their genetic offspring at least partially (if they use the father’s sperm and the surrogate’s egg) or completely (if they ask the surrogate to carry an embryo created from the mother’s egg and the father’s sperm).
 A Homosexual couple can also raise their own child (such as the Israeli gay couple who got there baby through surrogacy) Yonatan and Omer Gher’s dream – to have a baby of their own – come true. Yonatan was the donor. The two returned to their home country Monday with their one-month-old son Evyatar
 A single woman or man can also become single parent
DISADVANTAGES OF SURROGACY
 Complicated and long journey to get the needed accompanying procedures for surrogacy.
 Not all clinics support surrogacy so it may take longer to find the right clinic.
 Some surrogates face difficult emotional and psychological issues over letting the baby go.
 The couple and the surrogate may have difficulty making mutual decisions about matters, such as antenatal tests and how to manage the pregnancy, labour and delivery.
 Chances of exploitation of women in more..
 In case of divorce of intended parents before the completion of surrogacy the custody of child remains question mark (Baby Manji Yamada Vs. Union of India (UOI) and Anr) now the custody is with Emiko yamada her grant mother)
 Complicated situation arises when both the parties refuse to take custody of the child specifically when the child is born abnormal.
COUNTRIES WHICH ARE AGAINST SURROGACY
In the states of Arizona, New Jersey, and Michigan all forms of surrogacy are prohibited. Kentucky, Nebraska, and Washington only surrogacy, based on commerce is prohibited. In England, the law lets the surrogate mother receive some kind of reimbursement for genuine medical and pregnancy related expenses. Surrogacy Contracts Act provides that introducing, or agreeing to introduce; inducing; arranging or negotiating prospective parties to a surrogacy contract is an offence. Commercial surrogacy is prohibited in European countries such as France, Greece, Denmark and the Netherlands. Germany, Sweden, Norway and Italy prohibit every kind of surrogacy arrangements.