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Understanding Surrogacy Contracts and Analysing the Ethical Issues Therein

INTRODUCTION

Surrogacy is a means through which intended parents who are unable to conceive due to various reasons, achieve the same by taking the help of a surrogate. In general, the surrogate carries the intended parent’s child in return for financial compensation. So, a surrogate is nonetheless a woman who carries the child for another woman or couple.

Surrogacy is of two types, based on the method used. Traditional surrogacy, in which surrogate is inseminated by the sperm of the male partner of the intended parents, whereas in Gestational surrogacy, the surrogate is directly implanted with an embryo created by the sperm and egg of the intended parents themselves. In both the above-mentioned cases donor eggs and sperms can be used[1] .

Generally, the surrogate, following parturition, will bestow the official parental rights of the child to the intended parents as per the surrogacy agreement. No matter if one just met the surrogate or if the surrogate is one’s best friend or even one’s sister, a well-drafted contract of surrogacy is arguably the most important document required in the journey of surrogacy.[2] Surrogacy contract is nothing but a legally written agreement between the prospective parents and the surrogate mother that states the rights and obligations of both parties.

SURROGACY CONTRACTS:

In simple surrogacy, the parties to the contract include the prospective parents, surrogate, and the surrogate’s husband if any. However, it is to be noted that surrogacy arrangements may involve several parties too. Depending on the law of the land and type of surrogacy, there might be two (the surrogate mother and a single intended parent) to eight parties involved (the surrogate mother and her partner, prospective parents, donors of ova and sperm and their partners).[3]

The objective of the contract of surrogacy will not only be to protect all the parties involved but also to ensure a successful surrogate pregnancy, disclosing all terms of the arrangement and to make sure that such an arrangement is by the laws of the territory. All important legal, financial, medical, parentage, and other unusual outcomes are to be detailly discussed and agreed upon in the contract. These documents are the foundation for establishing the parental rights of the intended parents. A strong legal foundation is the key to a successful surrogacy.

At the start of any surrogacy arrangement, each party should have their respective attorneys. This is necessary as the lawyers will serve as allies of their respective clients to create a well-balanced and fair contract taking into consideration the interests of both parties.

Usually, the contract is drafted by the intended parents and their attorney. It’s then sent to the surrogate and her attorney for review and feedback. The contractual terms are then negotiated until all parties have their interests represented and agreed upon. Once, the contract is agreed upon, thoroughly reviewed, and signed, the surrogate is cleared to begin the medical procedures. A letter of clearance is sent to the hospital to alert them that the surrogate can proceed with the medications for an embryo transfer.[4] A well-drafted contract is very necessary to limit miscommunications and disputes throughout the process. It should protect the interests of everyone involved in the process of surrogacy; the intended parents, surrogate and particularly, the baby.

LEGALITY OF SURROGACY:

There are a number of medical and legal issues surrounding surrogacy. It can be complicated in various folds, with one key issue being the legality of the process in the state. Surrogacy is treated differently across the world. Some jurisdictions have no laws permitting, prohibiting, or regulating it. In some countries like Denmark, France, and Austria commercial surrogacy is prohibited. Whereas, some others like Israel and the Netherlands permit it in a regulated manner.

In India, commercial surrogacy has been legal since 2002.[5] Indeed, India is famously called as the “surrogacy capital of the world”, because, before 2008, surrogacy was vigorously carried out without any regulations or efforts made by the Indian government.[6] Indeed, India has no enforceable laws in place when it comes to surrogacy. Scilicet, no law in India ensures that a child born via surrogacy even has parents. This issue was raised in the year 2008 when the Supreme Court was called upon to deal with the case Baby Manji Yamda v. Union of India, [7] wherein, following the couple’s divorce, the wife refused to foster baby Manji since she was biologically tied to her father. The birth mother turned her down too, the court denied custody to a single male parent. Ultimately, the grandmother was given custody on behalf of her son. To boot, no law ensures that a baby born via surrogacy has a nationality – as in the case of the stateless twins born to a German couple via an Indian surrogate.[8]

When surrogacy agreements, go wrong like this, the courts will have to deal with the cases in an impromptu basis, often turning to surrogacy laws from other countries, including the US, Japan, and Ukraine, for guidance[9] . Hence, the current scenario of surrogacy in India calls for regulation — for the sake of children, surrogates, and prospective parents.

Correspondingly, in July 2019, the Indian government has introduced the Surrogacy Regulation Bill (2019) in Lok Sabha which proposes to ban commercial surrogacy on the grounds of “ethical-altruistic” reasons. The Bill provides for a constitution of surrogacy boards at national and state levels and also entirely forbids the parents from abandoning the child at any cost.[10] According to the Bill, only Indian couples who are lawfully married for a period of at least five years[11] and are between the ages, 23-50 and 26-55 for female and male respectively[12] will be allowed to opt for surrogacy. Additionally, the surrogate must be a close relative of the prospective parents[13] and should necessarily, have a child of her own and be married ever-since. This Bill will definitely transpire to be the turning point in the domain of surrogacy in India.

ETHICAL CONCERNS PERTAINING TO SURROGACY:

From the above Bill, it is obvious that the government has felt that, the practice of surrogacy is being misused by the clinics, due to the lack of sufficient legislation to regulate the practice. It has unquestionably led to rampant commercial surrogacy and unethical practices.

Considering the above, the following, in my opinion, are some major ethical issues associated with surrogacy.

To start with, one of the foremost ethical argument is that surrogacy converts babies into commodities.[14] As a general convention, pregnant women form a bond with their unborn child. But surrogacy hampers women from forming any connection and forces to detach themselves from the pregnancy. Normally, the child is the final and most awaited goal, but in this case, the child becomes a means to attain the surrogate’s goal, which happens to be money.

Secondly, it is argued that adoption is a better option than surrogacy.[15] There are a lot of homeless children in the world who deserve a good life. The theme here is that people have a moral duty to take care of the already existing children who are need of a loving family, rather spending a great deal of money, energy, and time on producing a child through surrogacy in this over-populated world.

To boot, the degree of involvement of the child with the biological or gestational mother has in most cases been a wrangle. This is because the surrogate is perceptibly not the primary caretaker of the child. Cases where biological or gestational mothers get attached to their child thereby creating child-bestowing issues will generally knock the doors of the court for help.

Moreover, until very recently, commercial surrogacy was legal in India as opposed to various other western countries. This fact gave rise to a number of western couples employing Indian women as surrogates. It was claimed that these couples leaned towards Indian surrogates since we’re relatively cheaper. Not only Indian surrogates, but various “Third World Women” were being exploited as baby machines,[16] which is unequivocally unethical.

Additionally, issues relating to selective reduction and abortion are pushed to the side and are not discussed until the surrogate pregnancy has begun. Usually, a greater number of embryos are produced and implanted into the gestational mother, than required, to increase the rate of successful surrogacy. Here, the question of humanity arises, when the “excess” embryos not required by their clients are either killed or sold.[17]

Last but not the least, not all cultures embrace surrogacy. It is viewed differently in different countries. The religious and cultural meanings of sexual relationships will interfere with understanding the science behind in-vitro fertilization and surrogacy.[18] For instance, if the surrogate’s parents do not understand the science behind the medical process, they and her community may view her as an unmarried mother or a woman who has had relations with someone other than her husband. Even if there is sufficient education, there are still many in the world who believe that using assisted reproductive technology is against God’s will, and, therefore, immoral. 

CONCLUSION:

Hence, in addition to ensuring that surrogacy is carried out in a safe and legal manner, the various ethical issues are – or should be – considered before initiating the process. While there are many religious organizations that glower upon the process of surrogacy, this concept is typically the only option for some individuals to start a family. Therefore, it is impossible to entirely shut down surrogacy in India, which calls upon the necessity to form and regulate surrogacy as a proper legal and ethical phenomenon. India has to lay and review the legislation governing surrogacy, such that it minimizes the above discussed major ethical issues, to exalt surrogacy, into a socially acceptable scientific solution for the aspiring parents that survive the test of time


[1] Ashley Marcin, Growing our family through gestational surrogacy , HEALTH LINE (Oct 29, 2019), https://www.healthline.com/health/pregnancy/surrogate-mother.

[2] Surrogacy Contracts Explained, CONCIEVE ABILITIES (Dec 1, 2017), https://www.conceiveabilities.com/about/blog/surrogacy-contracts-explained

[3] Surrogacy- Ethical, Social and Legal issues, HEALTH LAW CENTRAL, http://www.healthlawcentral.com/assistedreproduction/surrogacy/surrogacy-ethical-legal-issues/

[4] Supra note 1.

[5] Tarishi Verma, What are the Surrogacy Laws in India: Here is everything you need to know, THE INDIAN EXPRESS (Mar. 6, 2017, 9:19AM), https://indianexpress.com/article/research/karan-johar-surrogate-children-yash-roohi-what-are-the-surrogacy-in-laws-in-india-here-is-everything-you-need-to-know.

[6]Chinmoy Pradeep Sharma, Surrogacy Laws in India – Past Experiences and Emerging Facets, BAR AND BENCH (Nov 23, 2019, 10:45 AM), https://www.barandbench.com/columns/surrogacy-laws-in-india-past-experiences-and-emerging-facets

[7] Baby Manji Yamada vs. Union of India and Another (2008), 13 SCC 518(India)

[8] Vashitha Madhan, Struggling for a Surrogate: Commercial Surrogacy in India, THE DELHI POST, (July 13, 2018), https://delhipostnews.com/struggling-for-a-surrogate-commercial-surrogacy-in-india/

[9] The Swaddle Team, Surrogacy Laws in India-Right now, The Swaddle, (Mar. 27, 2018), https://theswaddle.com/surrogacy-laws-in-india-right-now-and-how-they-would-change-under-surrogacy-bill-2016/

[10] Nayanika Sengupta, Government introduces bill to ban commercial surrogacy, INDIA TODAY, (July 15, 2019, 15:44 IST), https://www.indiatoday.in/india/story/government-introduces-bill-ban-commercial-surrogacy-1569363-2019-07-15

[11] The Surrogacy (Regulation) Bill 2019, Bill No. 156-C of 2019, Chapter III Clause 4(C) (II)

[12] Ibid Clause 4(C) (I)

[13] Ibid Clause 4(b) (II)

[14] Brigette Coste, The Ethics or Surrogacy- A list of pros and cons, POSITIVE PARENTING ALLY, https://www.positive-parenting-ally.com/ethics-of-surrogacy.html

[15] Ibid.

[16] Ibid.

[17] Monika Rahar, Surrogacy and its legal implication, I PLEADERS (Feb. 13, 2018), https://blog.ipleaders.in/surrogacy-and-its-legal-implication/

[18] Intended parents-4 ethical dilemmas of International surrogacy, SURROGATE.COM, https://surrogate.com/intended-parents/international-surrogacy/ethics-of-international-surrogacy/


Cite this article (The Bluebook 20th ed.)-

Nikhila S., Understanding Surrogacy Contracts and Analysing the Ethical Issues Therein, Ex Gratia Law Journal, (October 1, 2020), https://exgratialawjournal.in/journal/volume-1-issue-2/understanding-surrogacy-contracts-and-analysing-the-ethical-issues-therein-by-nikhila-s/.

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Author

Nikhila S.
Student - SASTRA Deemed to be University