In the past 2 decades, there has been a spectacular change in the field of reproductive technologies. Reproductive sciences have come in with techniques like donor insemination, in vitro fertilization and embryo transfer methods which have completely revolutionized the reproductive environment. These techniques have infused hope into many infertile couples, who long to have a child of their own. Unfortunately, complications have arisen once these methods were combined with surrogacy arrangements.
Before one explores the conflict zones of surrogacy arrangements, it is necessary to understand certain concepts.
Surrogacy is the practice by which a woman bears a child for another with the intention of handing over the child to the commissioning parents, once born. The surrogate mother is the one who gestates the child. The genetic mother is the one who donates her ovum. The Commissioning parents are the ones who receive the child from the surrogate after the birth of the child.
Methods of Surrogacy
There are two methods of surrogacy arrangements : -
- Partial Surrogacy : - This is when the child harvested by the surrogate, shares the genetic makeup of the surrogate mother and that of the commissioning father. The Commissioning mother has no role to play in such arrangements.
- Total surrogacy : - In this case an embryo is created by the IVF method. It is done by combining the gametes of both the Commissioning parents. This is then implanted into the uterus of the surrogate mother who carries the child to term. Therefore the child has the genetic combination of the commissioning parents.
Dilemma of Parenthood
Unexpectedly, with the oncoming of surrogacy agreements, concepts of fatherhood and motherhood became subject to much controversy. Motherhood was never under much scrutiny as it was rightly thought that childbirth was the natural and conclusive fact establishing it. Paternity was a more controversial concept burdening legislators to provide for suitable tests. Little did anyone envisage, that a century later medical sciences would compartmentalize motherhood into the genetic, gestational and the social mother leading to a clash of interests, coincident in three women. The numbing factor is that all can simultaneously prove to be mothers of the unborn child.
Initially, the biological and the social aspect of motherhood were identifiable in one person. Now motherhood can be distinctly fragmented into three parts viz. the genetic mother who contributes her ova for the embryo, the surrogate mother who bears the child and the social mother who nurtures the child. Countries like United Kingdom and Australia have simplified this problem by lawfully declaring the surrogate to be the legal mother whereas India and certain states of the United States of America have held the commissioning mother to be the legal mother of the child.
No surprisingly surrogacy agreements have posed a series of social, ethical and legal issues, which needs to be carefully evaluated. This evaluation must be read in the backdrop of the conservative attitude of the people on this issue. While countries like U.K., Australia, and the U.S.A. have taken efforts to legislate in this regard, in India, the medical fraternity too has been trying hard to lobby for the formalization of National Guidelines governing such arrangements.
Although this is met with staunch opposition where experts from varied fields, have unflatteringly compared it to "womb-leasing" and "baby-selling", it is important to remember that if forbidden, it indirectly encourages clandestine growth of such practices. Therefore it is prudent to have legislation regulating this activity.
The legislative developments of the above mentioned nations are as follows : -
- United Kingdom
Surrogacy is governed by the Surrogacy Arrangements Act, 1985. Very close to its heels came the Human Fertilisation and Embryology Technology Act, 1990. This Act conclusively dealt with certain provisions left ambiguous in the preceding Act. Therefore both these Acts jointly regulate surrogacy agreements.
Along with the above mentioned Acts there is the Warnock Committee. It was constituted in 1982. The Committee critically examined the positive and negative aspects of reproductive advancements in relation to surrogacy arrangements.
The country is divided into 5 provinces viz. Victoria, South Australia, Australian Capital Territory, Queensland and Tasmania. Each has introduced its own legislation to regulate such practices.
The Indian Guidelines do not expressly mention the necessity of surrogacy agreements. It provides for necessary measures to be undertaken by the licensed medical clinics which are further subject to the strict supervision and regulation of an accreditation authority[. In case a person is aggrieved with the treatment provided by these ART clinics, a Complaint Cell has also been established, to deal with the same].
Uniquely, these Guidelines have involved insurance companies for the purpose of reimbursement of the costs incurred by the commissioning parents, if the surrogate does not deliver the child.
The National Guidelines have a separate segment outlining the rights of the child. Once born, he or she is treated as the legitimate child of the infertile couple. In order to avoid psychologically devastating consequences, the Guidelines provide for non-disclosure of the identity of third party donors especially if the children are under 18 years of age. In case of inquisitive children this restriction has been relaxed, to prevent any form of identity crisis.
Moreover, the National Guidelines lay down that before allowing a woman to be a surrogate, the ART clinics must certify that she is medically fit to undertake such a responsibility. The clinics are to take special measures to ensure that she is not an AIDS carrier. This has been done to prevent congenital diseases.
Even while using donated sperms and ova, HIV positive tests are undertaken to ensure non transmission of this disease to the unborn child. Moreover while creating an embryo under the IVF method, the age limit for the donors have been prescribed. This is to provide developed gametes for the purpose of giving birth to a healthy child.
The Guidelines further lay down that a HIV positive woman shall outrightly not be refused treatment by ART clinics. Instead, would be redirected to appropriate counseling service centres where she shall be informed about the potential hazards it may cause to the unborn child].
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