Surrogacy: General Aspects1

Infertility is a condition of the reproductive system that prevents the conception of children. Conception and sustaining the pregnancy are complicated processes that depend upon a number of factors that include (i) Production of healthy sperms by man (ii) Production of healthy eggs by woman (iii) Unblocked fallopian tubes that allow the sperm to reach the egg (iv) The ability of the sperm to fertilize the egg when they meet (v) The ability of a fertilized egg to become implanted in the woman's uterus, etc.

The infertile couples face many problems till they are able to bear a child of their own. The innovation in scientific technology like ovulation induction, artificial insemination, in vitro fertilization (IVF), surrogacy, etc. has led to many options for the infertile couples in contrast to earlier times where adoption of a child was the only way out. Surrogacy is one of the answers to infertility issues faced by modern women today. The desire to have one's own flesh and blood as a progeny has made surrogacy an excellent option. But due to social norms, surrogacy trade is considered as taboo in Indian culture. The word ‘surrogate’ has its origin from the Latin word surrogatus, which means ‘substitute.’ It refers to a person appointed to act in the place of another. Thus, a surrogate mother is a woman who carries a child on behalf of another woman, either from her own or from the implantation in her womb of a fertilized egg from other woman. Before the advent of modern assisted conception techniques, ‘natural surrogacy’ was the only means of helping certain infertile women to have children. Later on, artificial insemination was accepted and became the usual means of achieving 4pregnancy. When assisted reproductive techniques (ART), such as IVF became available, the eggs of a woman (who could not herself bear a child) and the sperms of her husband were fertilized in vitro and the embryos were transferred to a suitable host enabling them to have their own biological child. IVF surrogacy is an acceptable option in India. India has taken a flexible view of surrogacy compared to other countries where commercial surrogacy is banned. The reasons for India emerging as a hub of fertility tourism are (i) The easy availability of medical facility by top-notch hospitals and institutes (ii) Women who are willingly outsourcing their bodies for nine months in lieu of monetary compensation and (iii) Absence of any specific laws to guide the consumer of these medical services.

Surrogacy in India mostly depends upon the contracts formed and signed by the parties. Thus, it may or may not cover a situation which is of prime significance. The consumerism of medical services which is both local and international has ‘pros and cons’ as it is mostly governed by the contract agreements between the parties detailing the terms binding them. The compensation in consideration of such terms is as agreed between the parties. The problem begins where the contracting individuals have specified the gender of the baby and the fertility clinic is unable to deliver the same or where a child is born with defects to a surrogate. In both scenarios the child is abandoned. Thus in surrogacy matters, less concern is shown to the rights of the child. Genetic engineering has changed the face of human fertility and has made conceivable the bearing of child for the infertile couples. Now the unthinkable has happened, i.e. a child has become an essential saleable product. The health providers have made a huge profit out of this industry which is backed by various advertisements splashed across newspapers and the internet, raising the hope of infertile couples. As per The Economic Times of 25 August, 2008, the surrogacy trade in India has touched $445 million per year. By now this number must have definitely exceeded, even though how much successful this health-care service has been for producing babies is still a matter of doubt.

Although in 2005 Indian Council of Medical Research (ICMR) formulated the National Guidelines for Accreditation, Supervision and Regulation of ART clinics. According to these guidelines surrogacy by assisted conception should be considered only for such patients for whom it would be physically or medically impossible or undesirable to carry a child to a full term. The biological parents are required to adopt the child born through such surrogacy.

The British Medical Association states that, “Surrogacy is an acceptable option of the last resort in cases where it is impossible or highly undesirable for medical reasons for the intended mother to carry a child herself.” The Britannica dictionary defines surrogate motherhood as the practice in which a woman bears a child for a couple who is unable to produce children in an usual way.5

A standard definition of surrogacy is offered by the American Law Reports (1989). According to this report, “Surrogacy is a contractual undertaking whereby the natural or the surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the birth of the child.” Thus, a surrogate mother is a woman who carries a child on behalf of another woman, either from her own ovum or from the implantation in her womb of a fertilized egg from other woman. In other words, surrogacy can be defined as an arrangement whereby a woman is impregnated and gives birth to a baby to give it to the couple who are unable to have a child of their own.

Surrogacy is a new age phenomenon which is gaining popularity in India after its success world over. In India, the child born through surrogacy must be biologically related to either of the parents. Commercial surrogacy was legalized in India in 2002. This has invited medical tourism from abroad. Babies born through surrogacy agreements in India, get the Indian citizenship by virtue of the fact that they are born in India. For foreign nationals, prior to starting surrogacy treatment, it is essential that the intended parents consult the embassy of their country to ensure that they are able to get citizenship of their country for their child. A surrogate mother carrying a biologically unrelated child must register as a patient in her own name. While registering, the surrogate mother has to mention that she is a surrogate mother and will have to provide all necessary information about the genetic parents. All expenses of the surrogate mother during the period of pregnancy and postnatal care are to be borne by the couple seeking surrogacy. The surrogate mother is entitled to monetary compensation from the couple for agreeing to act as a surrogate. The responsibility of finding a surrogate mother, through advertisement or otherwise, rests with the couple or a semen bank.

India has an estimated 19–20 million infertile couples, according to the World Health Organization. Some women are unable to carry a child to a term. Similarly some men are unable to produce good quality and adequate spermatozoa. There are wide-ranging reasons for the inability to conceive by a woman. The major reasons are (i) formation of immature eggs (ii) failure of embryo to transplant (iii) repeated miscarriages (iv) hysterectomy or pelvic disorders (v) dangerously high blood pressure (vi) diseased vital organs viz. heart or liver (vii) stress (viii) diabetes (ix) habitual drinking and smoking (x) obesity, etc. Infertility is the main obstacle which is cleared through surrogacy. Though only 10–15% of them can undergo IVF, it is still a 1,000 crore business in India, according to some reports. 6Offensively termed as the rent-a-womb or baby farming or baby factory, surrogacy arrangement is providing employment to the subdued female population of India.

A doctor with skills in fertility issues is expected to diagnose and treat the infertile couple and assist in surrogacy arrangement wherever required. Medical negligence on his/her part can invoke the application of legal procedures. Law does not expect the doctor treating and arranging surrogacy to have the highest standard of skill. At the same time the doctor should have adequate degree of skill and knowledge, which he must exercise with adequate degree of caution in order to lead to a favorable outcome. However at times things could really go wrong and he/she would be liable to be prosecuted for medical negligence. 7Other medico-legal issues may arise from the surrogate mother and the intended parents. The surrogacy arrangement is a controversial relationship and its success is based mainly on the bond established between surrogate mother and the couple (intended parents). The Indian judiciary has in absence of any specific guidelines tried cases based on surrogacy on equity, morality, good conscience and natural justice. Thus a lot many medicolegal issues arise due to surrogacy. This book will dwell briefly into the historical background of surrogacy, the need for surrogacy, the kinds of surrogacy in practice, etc. and deliberate in depth on the medico-legal issues involved in surrogacy.