Surrogacy “the idea of renting a womb”

Introduction

A human is a wonderful machine and to understand such a machine is still a brain-teaser. In the 21st century, new technologies have introduced unbelievable and incredible possibilities that were not possible earlier.

Surrogacy is a social arrangement in which a woman is known as a gestational mother or a surrogate. Surrogacy is a process followed by Assisted Reproductive Technologies (ARTs). This social arrangement is usually bounded by a surrogacy contract that should not be breached.

Forms of Surrogacy

Surrogacy has different procedures and can be classified into five kinds, which are stated as follows:-

1.  DomesticSurrogacy

2.   Traditional Surrogacy

3.   Gestational Surrogacy

4.   Altruistic Surrogacy

5.   Commercial Surrogacy

 Domestic Surrogacy is a surrogacy arrangement between a gestational mother and intended parents who are living in the same country. International Surrogacy isin between a gestational mother living in one country and intended parents who are living in another country.  

Traditional Surrogacy arrangement that uses artificial insemination to fertilize a gestational mother’s eggs with sperm from the intended father. 

 Gestational Surrogacyvitro fertilization is used to create an embryo in a laboratory, with eggs and sperm from intended parents. 

 Altruistic Surrogacy is a surrogacy arrangement in which a gestational mother receives no financial reward associated with the pregnancy.

 Commercial Surrogacy is the one in which a gestational carrier receives payment from the intended parents for carrying and giving birth to a child.

 Rights to marry establish a home, and raise children are fundamental but still, it might look different for people to go for surrogacy, but prohibiting the method of surrogacy also seems to be in violation of the Constitution.In surrogacy, surrogate mother dynamically interacts with the child for her development and hence it will be immoral to term surrogate mother acting as “human incubator”, They must also recognize that the demand for surrogacy is so high that prohibiting it entirely would not solve the legal and moral problems. Instead, necessary steps need to be followed to regulate and minimize the negative effects of surrogacy, such as:

 ? For married couples, Surrogacy arrangements should be the last resort.

? It should be approved only upon a medical evolution as the inability of the designated mother to become pregnant.

? All parties must be of full age and resident that state where surrogacy arrangement will take place.

? The surrogate mother should be a married woman with experience of pregnancy.

? Need to have a statutory committee

? For the carrying mother to cover Actual costs in addition to compensation for suffering, loss of time & income, or any other reasonable compensation, the committee must approve monthly payments.

? A surrogacy which is bounded by contract should be enforceable only if is approved by the concerned committee and court.

 Surrogacy and adoption

Permanent relinquishment is there of parental rights in both surrogacy and adoption. Commentators who want to establish, that the surrogates should not be forced to surrender custody, often point towards the adoption case law. In order to stop situational coercion upon the mother, the grace period is provided to change her mind towards adoption. Consequently, there should be a grace period in cases of surrogacy as well. 

 In respect to the above argument, the biological tie is there of commissioning parents and that the surrogate has no such link to prove. Also, there would be no pregnancy if there is no agreement between the surrogate and intended parents.

Sex and rape both include sexual intercourse’ as analogous points, but one may lead to the continuance and later it might amount to a crime, as a result, different situations and liabilities arise. Similarly giving birth to a child and permanent renounce of a child is common in both surrogacy and adoption, but due to these similarities, it doesn’t mean that a similar kind of situation is being created and advantage of the grace period is needed to be given in such situation to surrogate mother as given in adoption. There is no harm in adoption; there is no pre-existing biological bond with parents who are going to adopt the child and there will be no harm or pain even if they are not allowed to adopt, and then they have an option to switch over to other parents for adoption. 

Both parties have to bear the pain and the commissioning parents can’t take another chance, which involves a search for a surrogate mother, expenses, and wait for another long period of time in Surrogacy. Therefore, in order to minimize the pain of both surrogate mothers and commissioning parents, the surrogate mothers should not be bestowed with a grace period.

 There are different laws related to International commercial surrogacy that differ from one country to another and within countries. In India, Commercial surrogacy has been legal since 2002. 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 the consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures, reimbursement of all reasonable expenses for carrying the 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 a surrogate child in the event of the 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 a 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 a biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoption, 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 parents only.

 ? Right to the privacy of donor as well as surrogate mother should be protected.

 ? Sex-selective surrogacy should be prohibited.

 CONCLUSION:

Science and technology have evolved to such an extent that it has resulted in assistance to the procreation process and has made tremendous contributions to society. Including India, this medical procedure is acceptable in several countries. Due to excellent medical infrastructure, high international demand is ready and the availability of poor surrogates is reaching industry proportions in India. “Wombs for rent” is the potentially offensive term by the emotionally charged parents used for commercial surrogacy. The practice of surrogacy is been adopted by couples where in India nearly twelve million children are orphans. In India, adoption is complicated and a lengthy method for childless people who want to give a home to these children. Laws should be framed and implemented to cover the debatable issues and to control surrogacy. Provisions must be framed to protect the rights of women and children.