“Surrogacy is the arrangement in which a woman agrees to carry a pregnancy that is genetically unrelated to her and her husband with the intention to carry it to term and hand over the child to the genetic parents for whom she is acting as a surrogate”.[1]

India, surreptitiously, has become a booming centre of a fertility market with its “reproductive tourism” industry reportedly estimated at Rs. 25,000 crores. Clinically called “Assisted Reproductive Technology” (ART), has been in vogue in India since 1978 and today an estimated 2,00,000 clinics across the country offer Artificial Insemination, IVF and Surrogacy. So much so, in the recent decision of the Supreme Court of India on 29^th September, 2008 in Baby Manji Yamada’s case[2], it was observed that “commercial surrogacy” reaching industry proportions is sometimes referred to by the emotionally charged and potentially offensive terms ‘wombs for rent’, ‘outsourced pregnancies’ or ‘baby farms’. It is presumably considered legitimate because no Indian law prohibits surrogacy.

Surrogacy and Indian Law: Is it Legal in India?

Due to non-availability of a statute on Surrogacy in India, it is legal as there are guidelines for ART Clinics formulated by ICMR/NAMS (Indian Council of Medial Research/National Academy of Medical Sciences) and report of Law Commission of India bearing no. 228 which are being used guidelines for regulating surrogacy in India.

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:

1. 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.
2. 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 subsequent willingness of none to take delivery of the child.
3. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
4. 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 child­abuse, 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.
5. 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.
6. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
7. Right to privacy of donor as well as surrogate mother should be protected.
8. Sex­selective surrogacy should be prohibited.
9. Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

Thus, Surrogacy is legal in India and the parties can entered into the Surrogacy Agreement. However, there is no legislation governing the Surrogacy law in India except the guidelines provided by Indian Council for Medical Research in the year 2005 regulating Assisted Reproductive Technology procedures and the 228th report of the Law Commission of India

Who will be Legal Mother?

In India, according to the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005 by the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS), the surrogate mother is not considered to be the legal mother. The birth certificate is made in the name of the genetic parents. The US position as per the Gestational Surrogacy Act 2004 is pretty similar to that of India.

Thus, the definition of surrogacy itself recognizes that the intended parents are the parents genetically related to the child and not the surrogate mother or her husband. IVF­ET (In vitro Fertilization­Embryo Transfer) “In vitro Fertilization -Embryo Transfer (IVF­ET) is the fertilization of an ovum outside the body and the transfer of the fertilized ovum to the uterus of the woman”. A surrogate mother carrying a child biologically unrelated to her must register in her own name. While registering she must mention that she is surrogate mother and provide all the necessary information about the genetic parents such as names, addresses, etc. She must not use/register in the name of the person for whom she is carrying the child, as this would pose legal issues, particularly in the untoward event of maternal death(in whose names will the hospital certify this death?.). The birth certificate shall be in the name of the genetic parents.

The clinic, however, must also provide a certificate to the genetic parents giving the name and address of the surrogate mother.

A child born through ART shall be presumed to be the legitimate child of the couple, born within wedlock, with the consent of both the spouses, and with all the attendant rights of parentage, support and inheritance. Sperm/oocyte donors shall have no parental rights or duties in relation to the child, and their anonymity shall be protected except in regard to what is mentioned under item.

Thus above guidelines as provided by Indian Council for Medical Research in the year 2005 regulating Assisted Reproductive Technology procedures itself recognizes the child born through ART procedure be the legitimate child of the Intended Father and Intended Mother and that the surrogate mother or sperm/oocyte donor shall have no parental right over the child. The presumption has been raised towards the legitimacy of the child as the child of a couple, born within wedlock, with the consent of both the spouses, and with all the attendant rights of parentage, support and inheritance.

Law Commission 228^th Report and Draft ART Bill emphasis on many rights and legal implications which has been defined in salient features as below:-

Determination of legitimacy of the surrogate child

(1) 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 and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through sexual intercourse.

(2) A child born to an unmarried couple through the use of assisted reproductive technology, with the consent of both the parties, shall be the legitimate child of both parties.

(3) In the case of a single woman the child will be the legitimate child of the woman, and in the case of a single man the child will be the legitimate child of the man.

(4) In case a married or unmarried couple separates or gets divorced, as the case may be, after both parties consented to the assisted reproductive technology treatment but before the child is born, the child shall be the legitimate child of the couple.

(5) A child born to a woman artificially inseminated with the stored sperm of her dead husband shall be considered as the legitimate child of the couple.

(6) If a donated ovum contains ooplasm from another donor ovum, both the donors shall be medically tested for such diseases, sexually transmitted or otherwise, as may be prescribed, and all other communicable diseases which may endanger the health of the child, and the donor of both the ooplasm and the ovum shall relinquish all parental rights in relation to such child.

(7) 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.

Right of the child to information about donors or surrogates

(1) A child may, upon reaching the age of 18, apply for any information, excluding personal identification, relating to his / her genetic parent or parents or surrogate mother.

(2) The legal guardian of a minor child may apply for any information, excluding personal identification, about his / her genetic parent or parents or surrogate mother when required, and to the extent necessary, for the welfare of the child.

(3) Personal identification of the genetic parent or parents or surrogate mother may be released only in cases of life threatening medical conditions which require physical testing or samples of the genetic parent or parents or surrogate mother. Provided that such personal identification will not be released without the prior informed consent of the genetic parent or parents or surrogate mother.

Rights and duties of party adopting surrogate child

(1) ART shall be available to all persons including single persons, married couples and unmarried couples.

(2) In case ART is used by a married or unmarried couple, there must be informed consent from both the parties.

(3) The parents of a minor child have the right to access information about the donor, other than the name, identity or address of the donor, or the surrogate mother, when and to the extent necessary for the welfare of the child.

(4) All information about the patients shall be kept confidential and information about ART procedures done on them shall not be disclosed to anyone other than the central depository of the ICMR, except with the consent of the person or persons to whom the information relates, or by a court order.

Rights and duties of donors

(1) All information about the donors shall be kept confidential and information about gamete donation shall not be disclosed to anyone other than the central database of the Indian Council of Medical Research, except with the consent of the person or persons to whom the information relates, or by an order of a court of competent jurisdiction.

(2) The donor shall have the right to decide what information may be passed on and to whom, except in the case of an order of a court of competent jurisdiction.

(3) A donor shall relinquish all parental rights over the child which may be conceived from his or her gamete.

(4) No assisted reproductive technology procedure shall be conducted on or in relation to any gamete of a donor under this Act unless such donor has obtained the consent in writing of his or her spouse, if there, to such procedure.

Rights and duties in relation to surrogacy

(1) Both the couple or individual seeking surrogacy through the use of assisted reproductive technology, and the surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable.

(2) All expenses, including those related to insurance, of the surrogate related to a pregnancy achieved in furtherance of assisted reproductive technology shall, during the period of pregnancy and after delivery as per medical advice, and till the child is ready to be delivered as per medical advice, to the biological parent or parents, shall be borne by the couple or individual seeking surrogacy.

(3) Notwithstanding anything contained in sub-section (2) of this section and subject to the surrogacy agreement, the surrogate mother may also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate.

(4) A surrogate mother shall relinquish all parental rights over the child.

(5) No woman under twenty one years of age and over forty five years of age shall be eligible to act as a surrogate mother under this Act. Provided that no woman shall act as a surrogate for more than three successful live births in her life.

(6) Any woman seeking or agreeing to act as a surrogate mother shall be medically tested for such diseases, sexually transmitted or otherwise, as may be prescribed, and all other communicable diseases which may endanger the health of the child, and must declare in writing that she has not undergone intravenous medical treatment or received a blood transfusion.

(7) Individuals or couples may obtain the service of a surrogate through a semen bank, or advertise to seek surrogacy provided that no such advertisement shall contain any details relating to the caste, ethnic identity or descent of any of the parties involved in such surrogacy. No assisted reproductive technology clinic shall advertise to seek surrogacy for its clients.

(8) A surrogate mother shall, in respect of all medical treatments or procedures in relation to the concerned child, register at the hospital or such medical facility in her own name, clearly declare herself to be a surrogate mother, and provide the name or names and addresses of the person or persons, as the case may be, for whom she is acting as a surrogate, along with a copy of the certificate mentioned in clause 17 below.

(9) If the first embryo transfer has failed in a surrogate mother, she may, if she wishes, decide to accept on mutually agreed financial terms, at most two more successful embryo transfers for the same couple that had engaged her services in the first instance. No surrogate mother shall undergo embryo transfer more than three times for the same couple.

(10) The birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of the genetic parents / parent of the baby.

(11) The person or persons who have availed of the services of a surrogate mother shall be legally bound to accept the custody of the child / children irrespective of any abnormality that the child / children may have, and the refusal to do so shall constitute an offence under this Act.

(12) Subject to the provisions of this Act, all information about the surrogate shall be kept confidential and information about the surrogacy shall not be disclosed to anyone other than the central database of the Indian Council of Medical Research, except by an order of a court of competent jurisdiction.

(13) A surrogate mother shall not act as an oocyte donor for the couple or individual, as the case may be, seeking surrogacy.

(14) No assisted reproductive technology clinic shall provide information on or about surrogate mothers or potential surrogate mothers to any person.

(15) Any assisted reproductive technology clinic acting in contravention of sub-section 14 of this section shall be deemed to have committed an offence under this Act.

(16) In the event that the woman intending to be a surrogate is married, the consent of her spouse shall be required before she may act as such surrogate.

(17) A surrogate mother shall be given a certificate by the person or persons who have availed of her services, stating unambiguously that she has acted as a surrogate for them.

(18) A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate.

(19) A foreigner or foreign couple not resident in India, or a non-resident Indian individual or couple, seeking surrogacy in India shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after the pregnancy as per clause 34.2, till the 28 child / children are delivered to the foreigner or foreign couple or the local guardian. Further, the party seeking the surrogacy must ensure and establish to the ART clinic through proper documentation that the party would be able to take the child / children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be.

(20) A couple or an individual shall not have the service of more than one surrogate at any given time.

(21) A couple shall not have simultaneous transfer of embryos in the woman and in a surrogate.

Conclusion

Law Commission in its 228^th reported quoted that, “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.”

Even in the absence of statutory frame work, surrogacy in India is not illegal, thus the country becoming a favourite destination for international destitutes of children. Before referring to the specifics, it is appropriate to appreciate the essential terminology employed in this field. Going by the glossary provided in ‘Baby Makers’ (Harper Collins), Gestational Surrogacy (GS) is a treatment
process in which another woman, known as the gestational surrogate, undergoes the embryo transfer process and then carries the pregnancy to term. GS may be achieved with the intending mother’s eggs or with eggs from a donor. Artificial Insemination Surrogacy (AIS) occurs when a surrogate mother becomes pregnant after being inseminated with sperm. After the birth, the surrogate mother relinquishes all parental rights and the child is given to the person(s) whose baby she carried. The Assisted Reproductive Technology (ART) comprises a group of therapies that manipulates the egg and/or sperm and/or early conception in order to establish a sustainable pregnancy. These procedures all stem from the basic IVF process.

Also Read:

Surrogacy transaction – a perspective on the constitutional and contractual aspects

Study of legal mechanism of practice of surrogacy

References:

Download the detailed ART Draft Bill & Rules, Click Here

Read the Law Commission Report, Click Here

[1] Guidelines as provided by Indian Council for Medical Research in the year 2005

[2] AIR 2009 SC 84.