[Ali Amerjee] Surrogacy Legal and Ethical Conundrum

SURROGACY:
ANALYSING THE
ETHICAL AND
LEGAL
CONUNDRUM
IN INDIA
Ali Yavar Amerjee Naseeruddin Ahmad

SURROGACY: DEFINITION

 The act of a woman, altruistic by nature, to
gestate a child for another individual or couple,
with the intent to give said child back to his/her
parents at birth.

METHODS

 Partial Surrogacy Involves the surrogate mother
inseminating herself with the commissioning
father’s sperm
 Full Surrogacy: An Embryo is created in vitro,
using the commissioning couple’s egg and sperm,
and is transferred to the surrogate mother’s uterus.

ART: ASSISSTED
REPRODUCTIVCE
TECHNIQUES
 Medication, IVF or artificial insemnination.
 Assisted zona hatching (AZH) is performed shortly before the
embryo is transferred to the uterus. A small opening is made in the
outer layer surrounding the egg in order to help the embryo hatch
out and aid in the implantation process of the growing embryo.
 Intracytoplasmic Sperm Injection (ICSI)
 Intracytoplasmic sperm injection (ICSI) is beneficial in the case of
male factor infertility where sperm counts are very low or failed
fertilization occurred with previous IVF attempt(s). The ICSI
procedure involves a single sperm carefully injected into the center
of an egg using a microneedle. This method is also sometimes
employed when donor sperm is used. Autologous endometrial
coculture is a possible treatment for patients who have failed
previous IVF attempts or who have poor embryo quality. The
patient's fertilized eggs are placed on top of a layer of cells from the
patient's own uterine lining, creating a more natural environment for
embryo development.

 In zygote intrafallopian transfer (ZIFT), egg cells are removed from the woman's ovaries
and fertilized in the laboratory; the resulting zygote is then placed into the fallopian tube.
Cytoplasmic transfer is the technique in which the contents of a fertile egg from a donor
are injected into the infertile egg of the patient along with the sperm. Egg donors are
resources for women with no eggs due to surgery, chemotherapy, or genetic causes; or with
poor egg quality, previously unsuccessful IVF cycles or advanced maternal age.
 In the egg donor process, eggs are retrieved from a donor’s ovaries, fertilized in the
laboratory with the sperm from the recipient's partner, and the resulting healthy embryos
are returned to the recipient's uterus. Sperm donation may provide the source for the
sperm used in IVF procedures where the male partner produces no sperm or has an
inheritable disease, or where the woman being treated has no male partner. A gestational
carrier is an option when a patient's medical condition prevents a safe pregnancy, when a
patient has ovaries but no uterus due to congenital absence or previous surgical removal,
and where a patient has no ovaries and is also unable to carry a pregnancy to full term.
 Preimplantation genetic diagnosis (PGD) involves the use of genetic screening
mechanisms such as Fluorescent In Situ Hybridization (FISH) or Comparative Genomic
Hybridization (CGH) to help identify genetically abnormal embryos and improve healthy
outcomes. Embryo splitting can be used for twinning to increase the number of available
embryos

COMMERCIAL
LEGAL ISSUES
SURROGACY

PROPOSED
LEGISLATION

HEALTH ISSUES CONCLUSION

COMMERCIAL SURROGACY

UNITED STATES OF
LEGAL POSITION
AMERICA

UNITED KINGDOM CANADA

INDIA

LEGAL POSITION
 Different Countries have varied laws relating
to surrogacy.
 The Supreme Courts of some Countries have
not explicitly ruled on the legal validity of
Surrogacy.
 Statutory validation is rare.

UNITED KINGDOM
 British Surrogacy Arrangements Act of 1985 prohibits
and criminalizes commercial surrogacy. However, this
law defines commercial surrogacy narrowly and only
prohibits third-party intermediaries from receiving a
fee.
 Human Fertilization and Embryology Act 1990 (UK)
(HFEA) established the Human Fertilization and
Embryology Authority whose basic function was to
grant licenses and authorize activities in the course of
providing treatment services’
 Recently a new law was enacted for the adoption of
children in England known as the Adoption and Children
Act 2002 (UK).

INDIA

 No such legislation has been framed
 Supreme Court has not explicitly laid down
guidelines in Baby Manji Yamada v. Union of
India.
 The Gujarat High Court decision of Jan Balaz v.
Union of India did not address the issue
completely.

UNITED STATES OF AMERICA
 The Supreme Court has not addressed the issue of
surrogacy.
 The Uniform Status of Children of Assisted
Conception Act was passed not as a regulatory act
for surrogacy but with the intention of having
limited tangential use of the so-called surrogacy
components.
 It is illegal in the states of Washington, Michigan,
Utah, Arizona, New Mexico and New York.
 In Re Baby M: Surrogacy Contract is against the
Public Policy, decision of the New Jersey Supreme
Court.

CANADA

 The recently passed Assisted Human
Reproduction Act has chosen to explicitly
prohibit commercial surrogacy.

PROPOSED LEGISLATION
• Under the Draft ART Bill 2009 commercial
surrogacy is per se allowed and the commercial
surrogacy contracts are recognized.
• Many safeguards are taken to see that the mothers are
not exploited. For example, only thrice can a woman
can be surrogate and that a guardian has to appointed
for the child in case of foreign commissioning
couple.
• But the Bill lacks many a things.
• The ART Bill 2009 does not contain provisions for
assisted hatching, blastocyst culture and transfer, laser
hatching, ovarian drilling, in vitro maturation.
• Definition of ‘embryo’ is different from that in
PC&PNDT Act and ICMR Guidelines.

• Advertisements for egg donors or surrogates by
advertisement agencies, tourism departments,
surrogacy agents, women’s magazines, medical
tours and travel agencies are not covered.
• Draft Bill does not emphasize adoption adequately.
• No maximum age for undergoing surrogacy.
• While unmarried couple are allowed, homosexual
couples are not.
• No provisions regulating Pre-implantation
Genetic Diagnosis (PGD) and Sex Selection of the
child.

ICMR GUIDELINES
 The Indian Council for Medical Research has given Guidelines in the year
2005 regulating Assisted Reproductive Technology procedures. The Law
Commission of India submitted the 228th report on Assisted Reproductive
Technology procedures discussing the importance and need for surrogacy,
and also the steps taken to control surrogacy arrangements. The following
observations had been made by the Law Commission:
 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.

HEALTH ISSUES

FOETAL- RISKS IN ASSISTED
MATERNAL REPRODUCTIVE
BONDING TECHNOLOGY

PSYCHOLOGICAL BEWILDERMENT
IMPACT ON THE &
SURROGATE ADOPTED CHILD

FOETAL-MATERNAL BONDING
 This is the bond formed between the mother and the foetus
during the pregnancy and for some time after the birth.
 Occurrences like eye-gazing, breast feeding, skin to skin contact
initiates release of oxytocin which helps psychological process
for the baby to develop and the mother to recover. This also
promotes bonding pattern and creates desire for further
contact with the individuals inciting its release.
 There is a crucial window of time from the moment of birth
onwards, whereby the baby begins to form cognitive
attachments through inter-subjective interaction with the
gestational mother.
 Surrogacy ruptures this bond and depriving both the mother
and child from important psychological development and may
lead to surrogates not giving up the child.

GENEAOLOGICAL BEWILDERMENT &
ADOPTED CHILD SYNDROME
 Genealogical bewilderment refers to the identity problems that
are experienced by a child who was either fostered, adopted, or
conceived through surrogacy.
 Surrogacy deliberately creates confused family structures
producing genealogical bewilderment for the child.
 Adopted child syndrome is a pattern seen in adopted children
which includes pathological lying, stealing, truancy, manipulation,
shallowness of attachment, provocation of parents and other
authorities, threatened or actual running away, learning problems,
fire-setting, and increasingly serious antisocial behaviour.
 In adoption the well-being of the child is paramount but in
surrogacy the wishes of the parents is supreme.
 Now if a child reacts in such a way knowing that the parents
wanted his well being, the child knowing that his parents bought
him from somebody may lead to a more violent vicious form of
adopted child syndrome.

PSYCHOLOGICAL IMPACT ON THE
SURROGATE
 In a study with fourteen surrogate mothers about their
feelings or concerns about relinquishing the child one
mother reported emotional distress over the
relinquishment and two others reported a strong
instinctual urge to bond with the child. The remaining
eleven did not feel bonded with the child.
 It may sound that majority of the surrogates are not
attached with the child but in reality the surrogates
undergo therapy and use cognitive dissonance reduction
strategies to cope with their loss, implying that the issue is
much deeper seated.
 If and when such therapy are withdrawn the surrogates
feel intense separation anxiety.

RISKS IN ASSISTED
REPRODUCTIVE
TECHNOLOGY
 Surrogacy involves Assisted Reproductive Techniques
(ART), so all the risks involved in ART are involved
in surrogacy.
 According to a recent review ART is responsible for
approximately 50% of all multiple births worldwide,
and about half of IVF pregnancies in the US result in
multiple births, with a high risk of premature delivery.
 One-third or even one-half of infant mortality is due
to complications of prematurity, and a large
contributor to prematurity is infertility treatment.

CONCLUSION
• The legal position on surrogacy in India is still
ambiguous. Commercial surrogacy is a concept
which is sought to be prohibited by law in a
majority of nations.
• Legal complications regarding parenthood of
surrogate children have contributed further to the
debate on commercial surrogacy.
• The health implications of surrogacy are
ominous, so before deciding anything thorough
research has to be be done in this field.

LEGAL ISSUES

SURROGACY
PARENTHOOD CONTRACTS

ENFORECEMENT
UNENFORCEABILITY
OF CONTRACTS:
OF CONTRACTS
HURDLES

CONSTITUTIONALITY

PARENTHOOD

 Important for the following reasons:
 To determine custody.
 Financial security of the child.
 Legal parents have a duty to support their child.
 Imperative to determine inheritance.

SURROGACY CONTRACTS
 Traditional- Here the wife being unable to produce eggs is unable to
bear a child another woman has intercourse or artificial inseminization
with the husband and bears the child for him.
 Gestational surrogacy- Here the wife of the commissioning couple is
able to produce eggs but cannot gestate a child. The wife's eggs are
fertilized in vitro by her husband's sperm, and a fertilized egg is
transferred to the surrogate for gestation. In this situation, the child has
two mothers: a genetic mother and a gestational mother.
 A surrogacy contract provides for payment of a fixed amount and
additional expenses to the surrogate mother.
 The amount is usually paid after the birth of the baby and the surrogate
is prohibited from alcohol consumption or smoking, both which have
harmful effects.

ENFORECEMENT OF
CONTRACTS: HURDLES
 Adoptive parents are forbidden from paying for the
child.
 Statutes criminalize pre-conception agreements.
 There is a waiting period after the child’s birth, after
which the mother is given an option to relinquish
the child’s custody, as held in Johnson v. Calvert, 851
P.2d 776, 778 (Cal. 1993) (en banc)
 Surrogate mother to be given certificate by parents/
customers.
 Proper documentation should be issued by
Surrogacy clinics.

UNENFORCEABILITY OF
CONTRACTS
 Some American States use an adoption model and
impose restrictions, such as screening the
participants, requiring court approval, and
permitting the surrogate to change her mind.
Sometimes, a surrogacy contract is voidable by the
surrogate up to seventy-two hours after she gives
birth, or up to one week if extenuating
circumstances require more time.
 Confidentiality of oocyte/sperm donor must be
insured.
 Adoptive parents must accept child even with
abnormalities.

CONSTITUTIONALITY
 The dilemma that the father is biologically related
to a child whom he is prevented from raising may
be more difficult to solve than by merely giving the
father a chance at gaining custody or, more likely,
visitation rights.
 Extortion: The law cannot prevent all possibilities
of extortion, but the problem is exacerbated in a
surrogacy arrangement when the mother has a
significant time period in which to change her
mind.
 Whether unmarried persons can avail of surrogacy?

[Ali Amerjee] Surrogacy Legal and Ethical Conundrum

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