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Surrogacy: A Short Lived Intimacy

The origins of Surrogacy in India are evident with the birth of worlds second and first of India's IVF baby who is famously called as Kanupriya Alias Durga. She was born on October 3rd 1978 in Kolkata through the efforts of Dr.Subhas Mukherjee and two more colleagues. The birth of Kanupriya has made a marvellous controversy. In India it was hard to think giving birth as commerce. Since then the field of assisted reproductive technology or called ART in small has shown wildest developments. [1]

The procedure started long back however; there is still no legal recognition of surrogacy in India. Till date only gestational surrogacy has endorsed that is also in its nascent phase. In addition to it, the laws related to surrogacy are also in the nascent stage. The guiding force between both the parties i.e. the surrogate and the intended parents are just the ART guidelines designed long back[2].

There are no codified laws. They are yet to be adopted and implemented. With the recent growth in the count of Intended parents opting for surrogacy in India, the nation has become the much sought after surrogacy destination. India has proved itself to be one of the most famous surrogacy destinations preferred internationally[3].

Surrogacy in United Kingdom has deep-rooted in 1980s. The first surrogate baby in U.K is referred to as 'baby cotton which brought the Surrogacy arrangement Act, 1985 to give the practise of surrogacy smoother. The Human Fertilization and Embryology Act 1990 showed that surrogacy arrangement of surrogacy were unenforceable but also created a parental order for implementing surrogacy retrospectively where the child had been handed over and all agreed. Labour government commission prepared a report on laws on surrogacy which is commonly known as Brazier report which recommended new legislations; strengthen the payment rule and other regulations over surrogacy. But it was found that none of the Brazier reports wereimplemented[4].

In 2010, British nationality law was amended to allow children born abroad to become British automatically on the grant of a parental order. In 2012, following a long campaign, the government announced its intention to introduce maternity leave rights for parents through surrogacy. These changes came into effect in April 2015.n 2013, the HFEA updated its guidance on surrogacy, creating specific forms and implementing a more flexible interpretation of the law on parenthood. In 2016, the government told Parliament that it would ask the Law Commission to undertake a review of U.K. surrogacy law.

It also, following the landmark ruling in the human rights case of Re Z announced it would change the law to remove discrimination against single parents.

In 2019, the law was changed to allow single parents to apply for parental orders.

Till 1884, the popular or only method of surrogacy was traditional manner which required sexual intercourse. When the first successful artificial insemination was completed in 1884, pathway of future artificial insemination made wide open. But it took until 1975 before the first ethically completed IVF embryo transfer got successful still IVF was not regularly used for gestational surrogacy until 1985. The same time artificial inseminations made used for traditional surrogacy's.

The first legal agreement for surrogacy was created in 1976 but surrogate didn't' t receive any compensation for the pregnancy. As a result of this in 1980, first compensation for surrogacy in the history of the method was successfully completed. She received $10,000 to be the surrogate for another couple but the lady was not prepared to face the emotions and other challenges for giving up the child to intended parents after the birth. She then eventually wrote a book called 'Birth Mother' focusing on her experience giving up the child.

The case of Baby M created a history of surrogacy.
In 1978, the Supreme Court of New Jersey decided that the case is the first American court to consider the validity of a surrogacy contract and ultimately found that the contract was invalid.

Thereby, the Court of First Example upheld the woman's right to change her decision after agreeing under a surrogacy contract to be inseminated with a man's sperm and to surrender the baby to him and his wife. Baby M was the child's pseudonym at the of a famous custody battle between the surrogate mother as well as the intended parents that were finalizing the surrogacy.

In the case of Baby M, William and Elizabeth Stern, married in July 1974, they began as students of Michigan. Elizabeth Stern learned that she might have developed multiple sclerosis, and feared that pregnancy would pose a significant health risk. Deciding not to have biological children was especially difficult for William Stern, who was the survivor in his Holocaust family.

After taking into consideration adoption, Sterns arranged a surrogacy through the New York Infertility Center. Both get into a surrogacy contract with the lady called Whitehead from Florida. After Whitehead gave birth to a baby girls she dropped the marital license of the child so that the Sterns can adopt the child. As the compensation William Stern will pay $10.000. After the delivery, she told Sterns that she cannot be a part of the baby but she surrenders the child to the couple in the beginning. The next day, Whitehead asked Sterns to have the baby, at least for a week. She took the baby and fled to Florida. The sterns filed a lawsuit over the custody of the baby and to terminate the custody rights from whitehead.

The baby was removed from Whitehead for months later. The court of New jersey stated that the contract is valid and it would terminate the custody of child with whitehead. The New Jersey Court of Law, granting a direct certification, detained that the contract was invalid on two grounds. Firstly, the court originates a direct conflict with existing New Jersey statutes. Second, the court found a conflict with New Jersey's public policy, as spoken in its legal and decisional law.

After four years the first compensation for surrogate was completed. In 1984, the intended parents Bill and Betsy go for the option of traditional surrogacy by hearing Mary Beth Whitehead as their surrogate agreeing to pay her $10,000. However the child was born the agreement between Whitehead and Surrogacy agreements are not unlawful in U.K, but they are unenforceable. Although some of the experts' opinions touched on visitation, the major issue they addressed was whether custody should be reposed in the Sterns or in the Whiteheads.

The trial court, consistent in this respect with its view that the surrogacy contract was valid, did not deal at all with the question of visitation. Having concluded that the best interests of the child called for custody in the Sterns, the trial court enforced the operative provisions of the surrogacy contract, terminated Mrs. Whitehead's parental rights, and granted an adoption to Mrs. Stern. Explicit in the ruling was the conclusion that the best interests' determination removed whatever impediment might have existed in enforcing the surrogacy contract.[5]

But it took until 1975 Surrogate mothers to be the legal mother of the child. On the question of best interests and we agree, but for different reasons, that custody was the critical issue the court's analysis of the testimony was perceptive, demonstrating both its understanding of the case and its considerable experience in these matters. We agree substantially with both its analysis and conclusions on the matter of custody.

Constitutional Perspective

Interest of the Child

India

India has once been a common destination for worldwide intended parents for surrogacy no longer became an option in 2015. Today, Indian surrogacy laws made it prohibited for foreign intended parents to complete a surrogacy in a country like India. The only persons who can complete a commercial surrogacy in India today are Indian intended parents who have been married for at least five years. The prohibition on foreign intended parents in 2015 was only the start of legislation regulating surrogacy.

In December 2018, after almost two years of debate, an Indian surrogacy law was passed that made commercial surrogacy illegal.[6] The law only allows altruistic surrogacy for needy infertile Indian couples who are married for five years and they should need doctor' s infertility certificate. The act also restricts women to being surrogates only once, and only if they are a close relative of the intended parents, is married and have a biological child and prohibited homosexuals, single parents and living together couples to have the benefits of surrogacy.

These changes reflect a new era of surrogacy in Asia; other countries like Thailand, Nepal have recently implemented surrogacy bans, as well. The laws relating to surrogacy contracts are vague and unclear. Different countries have different laws over the matter of legitimacy and enforceability of contracts on surrogacy. Certain countries consider these contracts as unlawful but some countries have their own laws for surrogacy regulations.

When Indian surrogacy first became a booming industry, there were no regulations in place, and unsafe and unethical practices developed in response. To keep up with demand from international intended parents, Indian surrogacy agencies effectively ran baby factories, where Indian women were forced to live until they gave birth to the intended parents' babies with usually no assistance for the family they had left behind while pregnant. In addition, the surrogates in India only received a fraction of the expenses that intended parents paid the surrogacy agency only $4,000 to $5,000 for compensation.

With agencies charging more than double that in total, surrogates was commonly exploited in commercial surrogacy. Their poverty and lack of education drew them back into the surrogacy process over and over again for this financial gain, and their health declined as they effectively became baby-making machines year after year. They also did not receive the kind of supportive services they needed for themselves and their family during this emotional journey. In response to these stories emerging over time, the Indian government attempted to take steps to make the process safer for all involved.

Unfortunately, that resulted in a restrictive process that has made the process more difficult or completely impossible, rather than safer. It' s hard to speculate about where the Indian surrogacy laws will go from here. If the recently passed bill is any indication, it seems like surrogacy in India won' t be possible any time soon for international intended parents.

This is why many surrogacy professionals recommend working in an area that has regulations aimed to protect those involved rather than working with a surrogate in a location that has banned the process outright. It' s not unreasonable to predict that surrogacy will continue in India, even if it' s illegal, putting more intended parents and surrogates at risk than before. In this way, the surrogacy laws in India likely won' t succeed in their goal, and the controversies surrounding Indian surrogacy may not dissipate as quickly as planned. If you' re considering surrogacy in India as a foreign intended parent, it' s best to consider other locations to complete your surrogacy goals, so as to avoid legal repercussions.

United Kingdom

Meanwhile the first international surrogacy touched the High Court in 2008, there takes a steady creek of cases in which United Kingdom intended parents have wanted to solemnize their legal relationships with the children born as an outcome of global commercial surrogacy arrangements. A case study deliberate that, of the 189 parental order applications that year, about 40 percent had involved in international surrogacy[7]. Though this gives ansign of how many United Kingdom citizens travel overseas each year for the purposes of surrogacy, because not all IPs apply for parental orders, exact numbers are unknowable.

Surrogacy contracts are unenforceable in the UK, which means that everyone relies on each other to honour the agreement, both in respect of handing over the child and expenses and other issues. It is also against the law for a third party to negotiate a surrogacy contract for payment. Ultimately, if there is a dispute about who should care for the child after the birth, an application can be made to the family court for a child arrangements order.

It is important to check that you meet the criteria for making a parental order before proceeding with a UK surrogacy arrangement. Parental rights aren't guaranteed after a surrogate pregnancy. The law continues to change as reproductive technology and the very definition of a parent changes. There isn't a federal law on surrogacy and state laws vary. After a surrogate pregnancy in some states, you may still have to pass adoption proceedings to gain legal custody of the child. In other states, a declaration of parentage before birth lets you avoid having to adopt the baby.

To protect your rights as parents to be and the rights of the child you're hoping to have hired an attorney who specializes in reproductive law in your state. He can write a surrogacy contract that clearly spells out what everyone needs to do. A contract like that may help if legal issues come up after birth.

United States of America

U.S. judges has adopted the best-interest-of - the-child (also recognized as the welfare-of - the-child) norm to decide parental-custody disputes based on the child's best interest, as the word implies. Largely in attempt to provide flexibility of trial courts when naming custody arrangements, a precise quality has proved alluring and no universal definition has appeared.

One definition focuses on the greater opportunity for the child to flourish factors include the intent of the parents of the child, the preferences of the child as well as the interplay with other relevant individuals who may relate to the best interest of the child. The Corpus Juries Seconded, a major overhaul of American law, considers additional factors such as parenting skills, continuity of care, responsibility of jobs, physical and mental health and stability in the home. It is essential to note that very few states actually have laws explicitly prohibiting or permitting surrogacy.

Most state-by-state surrogacy information is instead based on court decisions made in past surrogacy cases[8]. This means that individual circumstances can help shape the legal surrogacy process, and in some states, surrogacy cases can be handled differently from county to country or even from one judge to the next. Some states are considered to be completely surrogacy-friendly, meaning they either have statutes permitting and recognizing surrogacy, or they have a long history of favourable rulings in surrogacy cases.[9]

Surrogacy-friendly states generally grant pre-birth orders regardless of intended parents' marital status, sexual orientation, and in some cases, genetic relationship to the baby. These states allow compensated and uncompensated surrogacy agreements.

Rights and Interests of the Surrogate

The willingness of women to agree completely and openlyis fundamental to any measure of functional ethics.[10]Many scholars argue that banning surgery limits female reproductive rightas they choose, and that it is an affront to women's autonomy to make their own choices as regards their time and talents. In this regard, women are logical and self-reliant actors who can make fundamental decisions about their lives and are able to make decisions about them.

Such commentators tend to argue that surrogates are like any other type of job or work, and the best approach is therefore to provide safeguards and regulations which recognize the conditions that increase the risk of abuse and enhance the likelihood of positive results. There are some who claim that the considerable hormone, hormonal and physiological changes a woman undergoes during pregnancy and birth, including her relationship with child, make it too hard for a woman to agree to serve as a surrogate.

Regulatory Authorities Of Surrogacy

India

Guidelines of Indian Council of Medical Research

The Indian Council of Medical Research gave guidelines in 2002 which was approved by the Indian government in 2005 on the Assisted Reproductive Technology measures. 228th report of Assisted Reproductive Technology measures were discussed in the submission of the Law Commission of India. It discussed the need for surrogacy, procedures of controlling surrogacy arrangements etc.

As earlier the arrangements of surrogacy will be governed by the contract among parties which hold the terms and policies of consent of surrogate mother to bear the child. There has to be an agreement from the husband if necessary other family members for the same. But most important part is that it should not a commercial agreement. The agreement should carry the support and financial expenses of the surrogate mother as well as the child. There can be chance of death or divorce of commissioning couples or individual, in that case the financial support should be shown in the agreement. There shall be a contract for life insurance coverage for surrogate mother. Either both or one of the intended parents should be a donor as well to emanate the biological relationship with the child and also the cases of child abuse can be eliminated here.

Legislation itself should recognize a surrogate child to be the legitimate child of the intended parent without there being any need for adoption or even statement of guardian. Birth certificate of the child should contain the names of intended parents only. Right to privacy of donor and surrogate mother should be protected. Lastly, in cases of abortions Medical Termination of Pregnancy Act of 1971 will govern it.

United Kingdom

The foundation of a family is seen in individual and social lives as a fundamental aspect. Perhaps that makes the right, both in the Universal Declaration of Human Rights 1 and in the Convention on Human Rights and Fundamental Freedoms 1950 a universal right right to marry and found families a universal right.Although sexual procreation is the traditional approach in which a family can be formed, some individuals may need to rely on supported methods of reproduction or substitutes to create a family.It is not to control aided breeding and to regulate replacement does not exclude. The United Kingdom was one of the first countries in the world to offer a full regulatory framework for Assisted Reproductive Technologies' after long processes.

Although the UK has initially taken the lead in regulating other assisted reproductive technologies, since 1985, the Law on Substitutes has been in a haphazard way and over the years the piecemeal changes have produced a conflicting and confusing regulatory framework for all involved. The legislation has struggled to adapt to changes in social perceptions and the growing demand as more couples use surrogacy to create a family. It is a serious concern; however, that the legislation is either not adequately respectful of people's private and family lives or does it guarantees that children born through these arrangements are safeguarded.

The primary status for surrogacy in the UK, the Surrogacy Arrangements Act 1985 (SAA), was born in the midst of a great deal of controversy. The public script happened in January 1985, when the two-time married mother of Kim Cotton obtained £ 6,500 for working in the capacity of an alternate, 14 in what was condemned as a baby for cash deal15.

United States of America

This section presents briefly key information concerning the reproduction sector both in the US and globally, including: size and contributing factors in the industry's growth, the number of children born every year through replacement arrangements, the associated costs, and the role of intermediaries such as replacement agencies. Most notably, while substitution is a rising and globalizing phenomenon, practice varies significantly between jurisdictions.The costs involved are all different, depending on the location of the replacement arrangement, on the role and control of substitute agencies, on the standard of medical care and the living circumstances of the surrogate and on her ties between her and the intended parents.

Several analysts have recognized that developments in ART technology have led to significant growth of substitutes in recent years, which are a foundation for significant industry growth. Complete substitutions are now far more common than partial.While married, singlesex couples, men and women are the intended parents, customers most often find married, heterosexual couples with a medical need for substitute care Intended parents are traveling in all regions of the world with a view to international surrogacy[11].

The surrogacy industry is now actively associated with intermediaries—such as substitution companies, fertility clinics, medical institutions and medical tourism firms[12].It varies considerably between jurisdictions whether and how such intermediaries are governed. Companies offer services including replacement training, assessment and selection; Parents with substitutes; and touch, among other resources, planned parents with lawyers and hospitals.

Debates on International Framework to Support Surrogacy

Discussions have raged around the world over the last few decades on the extent to which human body and its components should be bought, sold, rented or donated.Gestational surrogacy in particular has become more popular and, in increasing numbers of cases, people wishing to obtain surrogate services leave their own nations to do so.

The discussion of surrogacy brings with it a network of concerns, including ethical concerns about the oppression of surrogates on the global market, the growing potential for reproductive tourism due to national regulatory differences, and the geographical and socio-economic imbalances between suppliers and buyers. Thus, a more thorough examination of the need for – and processes to establish – international regulations to protect all parties involved in foreign gestational surrogacy is essential.

Surrogacy has historically been pursued by infertile heterosexual couples, but is now increasingly sought by homosexual couples, especially men, as a way of having babies related by blood to one parent. The idea of surrogacy itself was not new; indeed, surrogacy authors are fond of referring to partial surrogacy biblical stories.

However, transnational gestational surrogacy activities are relatively recent phenomena and are becoming increasingly prevalent, especially in Eastern Europe, India, and some US states. Substantial differences in national legislation also cause the decision to go overseas for these reproductive services. For example, surrogacy is prohibited in several European countries, even as a treatment for infertility, and is allowed but strictly controlled in other countries, including parts of America. India' s surrogacy industry has received perhaps the most attention.

The surrogacy process in India is reportedly less expensive than in Canada or the United States, and the industry is largely unregulated. At the beginning, many of the issues concerning gestational surrogacy seem to echo those surrounding prostitution, particularly with respect to gender-based disparities. As with sex work, women are disproportionately impacted by the surrogacy controversy. In the scenario of surrogacy, though, the disproportionate effect is largely due to the biological fact that only women can be gestational surrogates and that no other demographics can meet the demand for female genitalia, namely the eggs and uterus.

In short, while a broad-based instrument governing surrogacy is desirable, because of the political obstacles inherent in such a massive undertaking, it is unlikely to succeed. The international community has several mechanisms through which it can spur consensus-building discussions on gestational surrogacy and, should the community reach consensus on key issues, International Legal Organisation sponsored regulation can be a reasonable, if imperfect, vehicle for achieving legal uniformity in protecting surrogates from exploitation.

Provisions of the proposed international instrument

Any suggested international instrument must be in the form of an international treaty which can be adopted by the Member States by enactment and which may subsequently amend, amend or make laws or enact orders and laws in accordance with the convention in their respective countries. The Convention's main purpose is to clarify the different positions that nations have drawn on surrogacy and to provide a starting point on countries and their various domestic surrogacy laws for citizens around the globe.

An international convention will be more effective than a model law because it is crucial that nations articulate their position on surrogacy internationally, thereby reducing uncertainty, in order for any international instrument to be productive on such a complex and fragmented subject. Reference may be made to the Adoption Convention, which has attracted 89 contracting states in terms of the smooth implementation of the draft convention. The Convention on Adoption was the most powerful instrument for the protection of children globally.

Particular attention should be paid to ensuring that countries such as the United States, India, Thailand, Russia, Greece, etc. are contracting states, as they are the most sought-after ISAs destinations.

Surrogacy is a promising, infertility treatment. It can theoretically alleviate many intolerable problems facing the infertile couples and their families. Though initially frowned upon, evidence shows that the arrangements for surrogacy are now more acceptable than when they were first introduced.

Therefore, changes can also be seen in some countries in the attitude of decision-making on surrogacy, but there are still indications of the degree of divergence between discourse and the actual practice of different forms of surrogacy around the world. Political, ethical and legal concerns are the focus of significant debates and disputes regarding natural or partial surrogacy or genetically unrelated comprehensiveness.

Courts must scrutinize solutions to decide the potentially grave ramifications of their results. A review of surrogate motherhood as a solution to the problem of childlessness reveals that its costs outweigh its benefits.

The baby selling laws, and public policies prescribing the sale of human beings, promoting the family, preventing the exploitation of women, and preventing class distinctions, demand that courts and legislatures declare surrogate mother contracts void. Although gratuitous surrogate motherhood may still negatively affect public policies, the offensive baby selling aspects are resolved when the biological father does not pay a fee 294 to the surrogate mother.

Detecting and effectively prohibiting under-the-table payments would of course remain problems- but those problems would also exist even if all surrogacy were outlawed and the whole practice driven underground. For those worried about surrogacy' s potentially harmful effects on society, it would be advantageous for the law to prohibit at least commercial surrogacy. And courts can interpret baby selling prohibitions to accomplish this result even without enactment of any additional statutes.

End-Notes:
  1. Doshi, V. (2016, 1 2). 'We pray that this clinic stays open' : India' s surrogates fear hardship from embryo ban. The Guardian. Retrieved from https://www.theguardian.com/world/2016/jan/03/india-surrogate-embryo-ban-hardship-gujarat-fertility-clinic
  2. Gamble, N. (2009). Crossing the line: the legal and ethical problems of foreign surrogacy. Reproductive BioMedicine Online, 19, 151–152.
  3. Deonandan, R., Green, S., van Beinum, A. (2012). Ethical concerns for maternal surrogacy and reproductive tourism. Journal of Medical Ethics, 38, 742–745.
  4. Aditi Raja and Lakshmi Ajay, Just Another Normal Delivery Eye 4 (July, 2013).
  5. https://casetext.com/case/matter-of-baby-m-2?ref=Scb!_4nzJe
  6. Majumdar, A. (2013). Transnational Surrogacy the 'Public' Selection of Selective Discourse. Economic and Political Weekly, 48(45-46), pp24-27
  7. According to the Cafcass study, there was a total 189 parental order applications in 2013-14
  8. Perkins, Kiran&Boulet, Sheree& Jamieson, Denise &Kissin, Dmitry.(2016). Trends and outcomes of gestational surrogacy in the United States.Fertility and Sterility.106. 10.1016/j.fertnstert.2016.03.050.
  9. Aznar, Justo &Peris, Miriam. (2019). Gestational Surrogacy: Current View. The Linacre Quarterly. 86. 002436391983084.
  10. Clara Watson, The European Courts of Human Rights Support Surrogacy, WORLD YOUTH ALLIANCE, https://www.wya.net/op-ed/the-european-courts-of-human-rights-support-surrogacy.
  11. Erin Nelson, Global Trade and Assisted Reproductive Technologies: Regulatory Challenges in International Surrogacy, 41 J. L. MEDICINE & ETHICS 240, 241 (2013).
  12. SeemaMohapatra, Stateless Babies and Adoption Scams: A Bioethical Analysis of International Commercial Surrogacy, 30 BERKELEY J. INT' L L. 412 (2012).

    Written By: Ms.Srirupa Choudhury

    Awarded certificate of Excellence
    Authentication No: AG30847475769-20-820

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