Does India Really Needs Legislation Regarding Surrogacy

ASSISTED REPRODUCTION TECHNIQUES – LEGAL ISSUES AND FUTURE PROSPECTS

One of the breathtaking breakthroughs in science in the recent years is its spectacular intrusion into the nature’s closely guarded secrets. The unprecedented and rapid advances in medical sciences have revolutionised modern medicine and surgery in a number of ways. These advances like genetic engineering, Assisted Reproductive Technologies, human cloning etc. have opened up the unimagined dimensions in the practical application of biomedical technologies. They promise unquestionable and undreamed of benefits to mankind. At the same time, they raise many questions of law and ethics stimulating public interest and concern.

Contemporary medical technology has in the recent times made extraordinary advances in responding to the desire of women/men to have children. It has witnessed phenomenal growth in the area of reproduction. It has made it possible for couples who would otherwise have been unable to conceiveand bear children to avail themselves of these techniques that are today commonly grouped under the heading Assisted Reproductive Technologies (ART). Assisted Reproduction Technique is a method to achieve pregnancy by artificial or partially artificial means, and is primarily used in fertility treatment. There are various modes of ART.

The cheaper availability of surrogates in India is attracting a lot of interest. The issue of surrogacy can cause great moral, ethical and legal debate within the community. However, with increasing demand for assisted reproductive treatment (ART) and a decline in the number of children available for adoption, it is possible that more Australians will start to consider surrogacy as an alternative.

INTRODUCTION

Assisted Reproductive Technologies

Assisted reproductive technologies include any fertilization involving manipulation of gametes/ embryos outside the human body and transfer of gametes/embryos into the body. They offer biomedical parenthood to various infertile couples who have often spent years trying to have a child and have exhausted all other avenues to have a child of their own. The new reproductive technologies give great help to infertile couples and make many new reproductive arrangements possible. The possibilities available for couples contemplating parenthood in unconventional ways under these new reproductive techniques are- Artificial Insemination In-vitro Fertilization Surrogate Motherhood

Intra Uterine Insemination( IUI )

Conventional Invitro Fertilization ( IVF )

Intracytoplasmic Sperm Injection ( ICSI )

Percutaneous Epididymal Sperm Aspiration or Extraction and ICSI (PESA ,MESA)

Testicular Sperm Aspiration or Extraction and ICSI HYPERLINK “http://www.layyous.com/root folder/assisted_reproductive_techniques.htm#extrA”(TESA, TESE)

Assisted Hatching

Freezing

Sex Selection

PART-I

BASICS ELEMENTS/A STUDY IN BRIEF OF SURROGACY WITH EMPHASIS ON ASSISTED REPRODUUCTION TECHNIQUES (ART)

Surrogacy – the issues

The issue of surrogacy can cause great moral, ethical and legal debate within the community. However, with increasing demand for assisted reproductive treatment (ART) and a decline in the

number of children available for adoption, it is possible that more Australians will start to consider surrogacy as an alternative.

Surrogate motherhood

A surrogate mother is someone who gestates (conceives and carries within the uterus) and then gives birth to a child for another person, with the full intention of handing the child over to that person after the birth. In Australia, the surrogate mother must not have any genetic link to the child she carries for the commissioning parent or parents. Therefore, her egg may not be used in the surrogacy arrangement. The egg and sperm used to form the embryo for transfer to the womb of the surrogate mother must be provided by the commissioning parent or parents (the person or people for whom the surrogate is becoming pregnant) or a donor.

In some cases, a donor egg may be used in conjunction with the commissioning father’s sperm or

donor sperm may be used in conjunction with the commissioning mother’s egg to form an embryo for transfer to the surrogate’s womb.

Surrogacy and ART

Surrogacy can be seen as an alternative form of ART that can assist a person or couple to have a

child. However, it is not a common procedure when considered in relation to other forms of ART

undertaken. There are a number of situations where a surrogacy arrangement may be considered,

for example:

A woman is unable to become pregnant as she has had a hysterectomy or is missing part of her uterus, uterine lining, ovaries or other parts of the genital tract.

A woman may have a health condition which makes pregnancy dangerous or she may not be able to carry a baby to term.

A couple in a male same-sex relationship may wish to have a child using their sperm.

A man may wish to have a child but have no partner.

A woman, who has embryos in storage with her male partner, dies and the male wishes to use the embryos to have a child.

Many people argue that it is difficult to compare surrogacy with other reproductive methods such

as egg donation, as the surrogate mother is undergoing all the emotional, mental and physical feelings of pregnancy.

The argument for surrogacy

There continues to be much controversy and debate surrounding surrogacy. The argument in favour of surrogacy is based on the personal autonomy of the person or couple commissioning a surrogate mother. The view is that people should be free to make arrangements so long as those arrangements do not bring harm to others. Some claim that the surrogate child and mother can be adequately protected if strict regulations and controls are established and enforced.

The argument against surrogacy

Arguments against surrogacy are mainly based on two issues: the best interests of the child and the rights and feelings of the surrogate mother. The legal, moral and ethical questions raised are numerous and include:

What happens if the surrogate mother or commissioning person or couple change their mind?

What happens in the case of miscarriage or multiple births?

What happens if the child has serious disabilities?

What are the rights of the child?

Should payment be involved?

Other key issues

There are a number of ongoing issues to consider once the surrogate mother gives birth and over the child. These include:

Paternity and maternity rights

Guardianship

Custody and access

Maintenance and financial support.

Surrogacy legislation

Each Australian state has addressed the surrogacy issue to varying degrees. Some states have specific legislation which outlines the requirements for surrogacy, while others do not. States and

Territories without legislation are required to abide by national ethical guidelines issued by the National Health and Medical Research Council (NHMRC). All surrogacy arrangements in Australia must be altruistic, which means that the surrogate mother receives no material gain from acting as a surrogate. Surrogacy legislation is currently being developed or reviewed in many states throughout Australia. The Federal Government is considering introducing national legislation for surrogacy to ensure consistency across the country. A consultation process was conducted in 2009, however, the outcomes of this consultation are not yet known.

Where to get information

• Your doctor

• An IVF clinic in your state or territory

• Victorian Assisted Reproductive Treatment Authority

Things to remember

Surrogacy is not a simple alternative to having a child. The process and surrounding issues are complex.

Surrogacy legislation in Australia may vary from state to state.

PART-II

THE NEXT STEP: SURROGACY THROUGH THE EYES OF EXPERIENCED PEOPLE

A BRIEF OVERVIEW:

Surrogacy is defined as “the practice whereby one woman carries a pregnancy for another person(s)¼ as the result of an agreement prior to conception that the child should be handed over to that person after birth” (Brazier et al., 1998). In the traditional method, known as `partial’, `straight’ or `genetic’ surrogacy, the surrogate mother and the commissioning father are the genetic parents of the child and conception is through artificial insemination. However, IVF techniques mean that is now possible to implant an embryo created by the gametes of the commissioning couple in the surrogate mother. In this situation, known as `full’, `host’ or `gestational’ surrogacy, the role of the surrogate mother is purely gestational and the child is genetically related to both of the intended parents. It is also possible that a donor egg may be used, in which case the genetic mother, the gestational mother and the intended mother are three separate people. These unique aspects of surrogacy have led to it becoming the most controversial of all the assisted reproductive techniques in recent years. The relationship between the commissioning couple and the surrogate mother is crucial to the success of the arrangement. The surrogate mother may be either a relative or friend of the commissioning couple, or may have been unknown to them prior to the surrogacy arrangement. Some argue that surrogacy with a previously unknown surrogate mother is potentially problematic (Warnock, 2002), since to some extent all of those involved are depending on trust between strangers. In other forms of assisted reproduction involving an unknown third party such as donor insemination or egg donation, the donor generally remains anonymous. However, in surrogacy cases, a bond must be established between the previously unknown surrogate mother and the commissioning couple, a relationship described by the founder of one UK surrogacy agency as a `forced friendship’ (Brazier et al., 1998). On the other hand, surrogacy with a known surrogate mother presents the possibility that a relative or friend will be pressured into being a surrogate mother, and that this will complicate the dynamics within the family to a damaging extent. Indeed, in Israel it is illegal for the surrogate mother to be a relative of the commissioning couple (Benshushan and Schenker, 1997). Whether the surrogate mother is known or unknown, potentially difficult issues arise associated with the involvement of the commissioning couple in the pregnancy and the birth, the handing over of the child to the commissioning couple and, importantly, the continuing contact after the birth between the surrogate mother and the commissioning couple. Professional advice about this contact is equivocal with the British Medical Association stating that “¼ while some people report benefits arising from maintaining contact between the parties after the birth, this will not suit everybody” (British Medical Association, 1996). To some extent, the continuation of contact between the family and the surrogate mother will depend on whether the commissioning couple intend to disclose the facts of the surrogacy arrangement to the child. The disclosure or nondisclosure of the use of assisted conception is an area of much. debate. Studies of families created by gamete donation have found that the large majority of parents do not intend to disclose the method of conception to the child (Brewaeys, 1996; 2002), although there is some evidence of a tendency towards greater openness in recent years (S.Golombok et al., unpublished data). van den Akker (2000) studied 29 women at various stages of surrogacy arrangements and found that all but one of them (97%) said they would disclose the surrogacy to their child, suggesting that surrogacy families are more open than families created through other methods of assisted reproduction. However, more than half of this sample had not yet completed the surrogacy arrangement successfully. It has been suggested that secrecy about the conception method will damage family relationships with a consequent negative impact on the child’s psychological development (Baran and Pannor, 1993; Daniels and Taylor, 1993; McWhinnie, 2001)and there is some evidence that dif®culties may arise when individuals discover their donor conception in adulthood (Turner and Coyle, 2000).,2000). Insofar as the surrogacy situation resembles adoption, it could be argued that children are likely to fare better when the surrogacy is disclosed to them from a young age. As yet, there is little empirical research on the consequencesof surrogacy or the experience of going through a surrogacy arrangement. In terms of child development, a review by Serani (2001) found no verbal or motor impairment in children born after IVF (full) surrogacy at age 2. A small number of studies have been published that interviewed commissioning couples about the experience of surrogacy. From a sample of 20 commissioning parents, Blyth (1995) reported that in all cases it had been agreed that the commissioning mother would be present at the birth of the child, all parents believed that the child should be told about the surrogacy arrangement and all intended to maintain contact in some form with the surrogate mother. However, the sample included only eight sets of couples with children, and the age of the children at interview was not reported. In addition, all the participants were volunteers recruited through the UK surrogacy agency Childlessness Overcome Through Surrogacy (COTS) so cannot be considered an entirely representative sample, as not all commissioning couples have contact with COTS. Other studies in the UK (van den Akker, 2000) and the USA (RagoneÂ, 1994) have also used samples that include commissioning couples who have not yet become parents. The aim of the present study was to obtain systematic information from a representative sample of surrogacy families in the UK with a child aged ~1 year old. This paper focuses on commissioning couples’ reports of their experience of the surrogacy arrangement. In addition to reporting on the sample as a whole, comparisons have been made between those couples who knew the surrogate mother previously and those who did not, and between those arrangements involving full.

PART-III

ASSISTANT REPRODUCTION TECHNIQUES- LEGAL

CONSIDERATIONS AND OTHER IMPLICATIONS

ARTs raise a variety of complex legal issues. For example, with ARTs it is now possible for a child to have three biologically related parents—the man who provides the sperm, the woman who provides the egg, and the woman who gestates the child and gives birth—as well as one or more additional social parents who intend to raise the child after it is born. If conflicts arise among these individuals, how should the law apportion their respective rights and responsibilities? Some courts have held that parental rights should be based on the intent of the parties at the time of conception; thus, when one woman gives birth to a child conceived with another woman’s egg, the woman who intended to act as the child’s parent will be considered the mother. Other courts have rejected this intent-based approach in favor of clear rules favoring either genetic or gestational bonds. In many jurisdictions, the law in this area remains unsettled (Garrison 2000).

Disputes also can arise over the disposition of cryopreserved gametes and embryos. When individuals die before their frozen gametes or embryos have been used, should a surviving spouse or partner have the right to use the frozen specimens without the donor’s explicit consent? When a couple freezes their embryos for future use and then divorces, may one partner use the embryos to have a child over the other partner’s objection? Internationally, courts have taken widely differing approaches to these issues. To avoid disputes over frozen gametes and embryos, many authorities suggest that people should leave written instructions regarding their future disposition wishes. However, some courts have suggested that, even when such instructions exist, individuals retain the right to change their minds at a later date (Coleman 1999).

The law also governs the relationship between ART practitioners and the patients they serve. Physicians have been accused of understating the risks associated with ARTs, particularly the likelihood and consequences of multiple gestation, as well as overstating the likelihood that treatment will result in a live birth. Such practices may form the basis for legal claims of misrepresentation or failure to obtain informed consent. The law also may constrain the exercise of discretion by physicians in their selection of patients. For example, physicians who are unwilling to provide ARTs to unmarried women or HIV-positive patients may find their decisions challenged under antidiscrimination laws (New York State Task Force on Life and the Law 1998).

PART-IV

WHEN SURROGACY GOES INTERNATIONAL: CROSSING BOUNDRIES AND BORDERS

INTERNATIONAL SURROGACY BETWEEN INDIA AND UNITED STATES:

With an increasingly restrictive global market for international adoption and an increasingly global expansion of surrogacy programs, it is almost certain that cross-border surrogacy arrangements will flourish. The market supply will become concentrated in nations such as India, which have access to contemporary technology and skilled individuals who can provide surrogacy programs at lower cost, to serve the demand in wealthier nations such as the United States. Yet little has been done on a national level in India or the United States to protect the interests of Indian women who serve as surrogate mothers, the children they bear, or those individuals who travel overseas to commission pregnancies. A global market has developed with few checks and balances, and those who stand to suffer the most in this free market are those with the least bargaining power – women and children. This article establishes that international surrogacy arrangements between commissioning parties in the United States and surrogate mothers in India should come to an end.

OVERVIEW OF SURROGACY ARRANGEMENTS

Surrogacy is not so new as far as “new” reproductive technologies are concerned, and it is often noted that the practice dates back to Biblical times. The Old Testament offers the example ofAbraham’s infertile wife, Sarah, who “commissions” her maid Hagar to bear her a child by persuading Abraham to sleep with her. Similarly, Rachel, the barren wife of Jacob, commissions her maid Bilhah to have a child by convincing Jacob to sleep with her. The class distinctions between the commissioning and surrogate women in these stories reflect modern day practices. Hindu mythology also offers instances of surrogacy and reflects the secrecy that still surrounds surrogacy practice. In the Bhagvata Purana, Vishnu heard Vasudev’s prayers beseeching Kansa not to kill all sons being born. Vishnu heard these prayers and had an embryo from Devaki’s womb transferred to the womb of Rohini, another wife of Vasudev. Rohini gave birth to the baby, Balaram, brother of Krishna, and secretly raised the child while Vasudev and Devaki told Kansa the child was born dead.Today, there are two types of surrogacy. The first type of surrogacy arrangement is traditional surrogacy, or “complete surrogacy,” in which the eggs of the surrogate mother are used in the conception of the child. The surrogate mother is genetically related to the child and is thus more accurately considered the child’s biological mother. Commercial surrogacy began to take hold in the United States in the late 1970s and early 1980s when brokers, such as agencies and private attorneys, began to advertise their services to infertile couples.8 These pregnancies are achieved using artificial insemination, typically with sperm provided by the commissioning husband.As Barbara Katz Rothman observed, “[s]urrogate motherhood was not brought to us by the march of scientific progress. It was brought to us by brokers, by people who saw a new market and went after it.” Rothman noted that the commercial aspect of surrogacy had nothing to do with scientific progress (the technologies involved, she wryly noted, were the technology of masturbation and the turkey baster or its equivalent), but rather, had everything to do with marketing.The second type of surrogacy arrangement is gestational surrogacy, in which an embryo created in vitro is transferred into the uterus of a woman who does not contribute the egg.Gestational surrogacy has become increasingly more common and presently accounts for approximately 95% of all surrogate pregnancies in the United States. In India, the non-binding guidelines and proposed legislation covering commercial surrogacy arrangements.

PART-V

LEGAL ISSUES ARISING OUT OF ASSISTED REPRODUCTION TECHNIQUES (ART)

Technical issues:

Laboratory mix”ups, transfer of wrong embryos, ethics involved invitro fertilization, surrogacy & sperm donation. Complex legal problems might arise out of laboratory mix up that might occur i.e. where the gamete is misidentified, or when a wrong embryo is implanted etc. as had happened in the case of a Californian woman who was implanted with an embryo for another which mistake was realized only after the birth of the baby. Another problem that might arise is with regards to particular traits of the child. There is a strong bias towards fair skin colour, good height and educated individuals sperm/ova as these features would be transferred in to the child. More reason for worry might be instances where the intending parents chose some negative trait or rather a disability to be transferred into the child5. That would then disrupt the very purpose of research in medical science which aims at preventing and reducing suffering from the world.

Religious issues:

It separates the procreative purpose of the marriage act from its unitive purpose. The Church also believes that ART would separate the procreative purpose of marriage from the unitive purpose. Marriage according to them unites the husband and wife to a close intimacy which renders them capable of generating new life. Laws should preserve this purpose of marriage and the marriage institution in itself. Any technique that subverts this must be wrong. Technology must in no case. There has been an instance of a deaf British couple who petitioned for a deaf child using IVF.

Legal issues:

The questions of utmost importance are –

Whether the human body is an object that is possessed by an individual? Is he the owner of his body so as to be entitled to put it through abuse? Can ART for procreation be categorized as abuse?

Will surrogacy agreement hold the field in the absence of any valid legislation passed by the Parliament?

Are the babies born out of ART technique legitimate? What is their legal status?

Who then in law should be the mother and father?

What is the status of the ova (egg) donor or of the sperm donor?

Can succession rights be denied to a baby born out of ART?

What shall be their citizenship?

Following grant of Indian citizenship can these children be left in the hands of single parent or in the hands of gay or lesbian couples particularly when Indian laws have not yet explicitly recognized such relationships?

Inadequacy of laws.

This paper seeks to analyse the above subject matters in detail with a view to throw light on the

deficiency in the law and suggest areas which a new law in the field should address.

Whether the human body is an object that is possessed by an individual? Is he the owner of his body so as to be entitled to put it through abuse? Can ART for procreation be categorized as abuse?

This answer must necessarily begin with ” Jurisprudence cannot be divorced from history6, nor can it be divorced from philosophy. It must be the endeavour of law to relate the empirics to the ideals. Thomas Hobbes opines that an individual has a property in his person. He may utilize it to the utmost. This freedom stops short only of self destruction. Man is entitled to the fruits of his labour. A thorough examination of the laws of today brings us to what has so clearly been mentioned by Hobbes. There is a freedom to exploit your property in your own self except that it does not allow self destruction or grievous hurt8. The reason on which the general rule rests is this, that it is impossible to restrain men of mature age and sound understanding from destroying their own property, their own health and their own comfort. Section 87 of the Indian Penal Code makes it very clear. It states that consent given by a person above 18 years of age for all acts being done against him except that of causing or intended to be likely to cause his death, or grievous hurt, will exonerate the actor from criminal liability if the consenting man should suffer from any harm. For instance, if, a grown man of 40 years, sells his teeth to a dentist for 1000 rupees and permits the dentist to pull them out, the dentist is not liable for causing injury to A’s person. Again consent is a good defence to sex offences in general. It can therefore be safely inferred that a surrogate mother’s subjection of herself through the rigours of child bearing is a conscious decision on her part to which even the law cannot disagree.

How is the lack of laws affecting the society and the scientific community in India?

The lack of laws does always result in chaos as there is no safeguarding of interests. The above discussion in the legal issues paragraph brings to light such unanswered questions that arise due to absence of laws. In the absence of laws when a dispute reaches the court, the court has little or no option but to decide. The court cannot enact law it can only interpret written law.

The case of Baby Manji and that of Jan Balaz prove the point. In the absence of a law the surrogate mother’s as well as the commissioning parents interests are not protected. The interests of the child that takes birth is also not protected adequately. It would not be in the best interests of the scientific world to bring a cap on any such procedures. Moreover scientific temper should grow and medical science must progress thereby contributing in reducing suffering on this earth. The object of the patent law is to encourage scientific research and industrial progress

Suggestions for formulating new laws

As Savigny points out “It is impossible to regard human law as a purely material phenomenon. It is not original protoplasm, but a derivative product, and ultimately its source must be conscious will or reason, though these are vastly influenced by the circumstances of environment. Keeping the circumstances in mind India must come up with laws that would tackle the problems and clarify the rights and liabilities of the various parties involved. It is worth mentioning that a draft bill on ART is ready but some issues remain to be addressed. The bill defines artificial insemination, assisted reproductive technology, donor, embryo, fertilisation, foetus, surrogacy etc. It will constitute the National Advisory Board that will make regulations relating to ART. It

also specifies the duties of ART clinics. It also makes provision for handling and storage of gametes etc.It will regulate research in this area. It also clearly mentions the rights and duties of patient’s donor’s surrogates and children. It also deals with the status of the child. It lays down offences and penalties and makes miscellaneous provisions too. So that mix ups don’t result clinics must be required to double check at every stage of transfer, with the object of reducing human error to the minimum. Unique identity number should be provided and computerization of the whole procedure should be done as a step of extreme caution to avoid mix ups. As has been rightly pointed out that the pulse of the society must be gathered prior to passing a law so

must the Judges keep their fingers firmly upon the pulse of the accepted morality of the day.

PART-VI

FUTURE CHOICES REGARDING ASSISTED REPRODUCTION TECHNIQUES AND THE LAW RELATED TO IT

REGULATION OF ART

Despite it being a $3-5 billion industry with significant ethical challenges and critical issues related to the health and well-being of women and children, the ART industry is almost entirely unregulated in the US. In the public sphere, ART is discussed in the context of abortion politics, and policy development is paralyzed by ethical debates about the moral status of the embryo. One of the only federal regulations in place regarding ART is the Fertility Clinic Success Rate and Certification Act of 1992, which requires that fertility clinics report their success rates annually to the Society for Assisted Reproductive Technology (SART) for publication on the website of the Centers for Disease Control and Prevention (CDC). There is no penalty for failing

to comply, aside from being listed as a “non-reporter” in the CDC’s publication. There are professional organizations (SART and ASRM) that have requirements for membership, and the Federal Trade Commission has had some influence on clinics that have advertised 18 inappropriately, but for the most part regulation of fertility clinics and the use of ART comes from a patchwork of state laws.33 The commercial aspect of ART, linked with minimal regulation, creates an unstable environment for ART consumers, in which information, services, and policies are inconsistent, incomplete, and sometimes incorrect. In a recent study of all SART affiliated fertility clinics with websites, researchers found the information provided “did not routinely meet the AMA guidelines for websites delivering medical health information.” It was also determined that “the quality of hospital center websites is superior to that of private clinics” and that “websites affiliated with academic institutions are more extensive in content and frequently include links to health research and educational websites.” The lack of regulation of the industry and the accompanying gap in reporting on adverse health reactions is a major reason there has not been more research and data on the health impacts of ART.

International

While the United States has not produced much regulation in this area, many countries have enacted some form of regulation of ART. The only two countries with comprehensive regulation that cover the use of all sperm, eggs, and embryos, whether for fertility or research, and apply to public and private ventures, are the UK and Canada. The UK’s Human Fertilization and Embryology Authority (HFEA), established in 1990, oversees all fertility treatments and embryonic research in the UK. The HFEA is responsible for the licensing and monitoring of all clinics offering IVF, donor insemination, and the storage of eggs, sperm and embryos. The HFEA produces a Code of Practice, which gives guidelines to clinics about the proper conduct of licensed activities, and keeps a formal register of information about donors, treatments and children born from those treatments. The HFEA has been criticized for moving technological development forward quickly while using its presence as a regulatory body to assuage the public that enough oversight is in place. Canadian legislation created the 2004 Assisted Human Reproduction Act (AHRA), which prohibits the use of certain ART, including sex selection (except to prevent, diagnose, or treat a sex-linked disorder or disease), commercial surrogacy, the sale of gametes and embryos, and germline engineering. The AHRA also established the Assisted Human Reproduction Agency of Canada (AHRAC) to develop and oversee regulations covering these and other permitted activities