Legal And Ethical Issues Surrounding Surrogacy
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Legal And Ethical Issues Surrounding Surrogacy
Surrogacy is a method or agreement whereby a woman agrees to carry a pregnancy for another person or persons, who will become the newborn child’s parent(s) after birth.
Intended parents may seek a surrogacy arrangement when either pregnancy is medically impossible, pregnancy risks present an unacceptable danger to the mother’s health or is a same sex couple’s preferred method of having children
. Monetary compensation may or may not be involved in these arrangements. If the surrogate receives money for the surrogacy the arrangement is considered commercial surrogacy, if she receives no compensation beyond reimbursement of medical and other reasonable expenses it is referred to as altruistic. The legality and costs of surrogacy vary widely between jurisdictions, sometimes resulting in interstate or international surrogacy arrangements.
Surrogacy is a very controversial practice around the world, raising difficult moral, social and legal issues. As a result, the legal situation varies considerably. Many countries do not have laws which specifically deal with surrogacy. Some countries ban surrogacy outright, while others ban commercial surrogacy, while allowing altruistic surrogacy. Some countries allow commercial surrogacy, with few restrictions. Some jurisdictions extend a ban on surrogacy to international surrogacy. One of the problems is the rules that should apply in regard to the intending parents. For example, should normal rules applicable to adoptions apply or should it be unregulated, as it is in some countries..
As of 2013, places where a woman could legally be paid to carry another’s child through IVF and embryo transfer included India, Georgia, Russia, Thailand, Ukraine and a few U.S. states.
Laws dealing with surrogacy must deal with:
• enforceability of surrogacy agreements. In some jurisdictions, they are void or prohibited, and some jurisdictions distinguish between commercial and altruistic surrogacy.
• What, if any, difference does it make whether the surrogacy is traditional or gestational?
• Is there an alternative to post-birth adoption for the recognition of the intended parents as the legal parents, either before or after the birth?
Although laws differ widely from one jurisdiction to another, some generalizations are possible:
The historical legal assumption has been that the woman giving birth to a child is that child’s legal mother, and the only way for another woman to be recognized as the mother is through adoption (usually requiring the birth mother’s formal abandonment of parental rights).
Even in jurisdictions that do not recognize surrogacy arrangements, if the genetic parents and the birth mother proceed without any intervention from the government and have no changes of heart along the way, they will likely be able to achieve the effects of surrogacy by having the surrogate mother give birth and then give the child up for private adoption to the intended parents.
If the jurisdiction specifically prohibits surrogacy, however, and finds out about the arrangement, there may be financial and legal consequences for the parties involved. One jurisdiction (Quebec) prevented the genetic mother’s adoption of the child even though that left the child with no legal mother.
Some jurisdictions specifically prohibit only commercial and not altruistic surrogacy. Even jurisdictions that do not prohibit surrogacy may rule that surrogacy contracts (commercial, altruistic, or both) are void. If the contract is either prohibited or void, then there is no recourse if one party to the agreement has a change of heart: If a surrogate changes her mind and decides to keep the child, the intended mother has no claim to the child even if it is her genetic offspring, and the couple cannot get back any money they may have paid or reimbursed to the surrogate; if the intended parents change their mind and do not want the child after all, the surrogate cannot get any reimbursement for expenses, or any promised payment, and she will be left with legal custody of the child.
Jurisdictions that permit surrogacy sometimes offer a way for the intended mother, especially if she is also the genetic mother, to be recognized as the legal mother without going through the process of abandonment and adoption.
Often this is via a birth order in which a court rules on the legal parentage of a child. These orders usually require the consent of all parties involved, sometimes including even the husband of a married gestational surrogate. Most jurisdictions provide for only a post-birth order, often out of an unwillingness to force the surrogate mother to give up parental rights if she changes her mind after the birth.
A few jurisdictions do provide for pre-birth orders, generally in only those cases when the surrogate mother is not genetically related to the expected child. Some jurisdictions impose other requirements in order to issue birth orders, for example, that the intended parents be heterosexual and married to one another. Jurisdictions that provide for pre-birth orders are also more likely to provide for some kind of enforcement of surrogacy contracts.
The citizenship and legal status of the children resulting from surrogacy arrangements can be problematic. The Hague Conference Permanent Bureau identified the question of citizenship of these children as a “pressing problem” in the Permanent Bureau 2014 Study (Hague Conference Permanent Bureau, 2014a: 84-94). According to U.S. Department of State, Bureau of Consular Affairs, for the child to be a U.S. citizen one or both of the child’s genetic parents must be a U.S. citizen. In other words, the only way for the child to acquire U.S. citizenship automatically at birth is if he/she is biologically related to a U.S. citizen. Further, in some countries, the child will not be a citizen of the country in which he/she is born because the surrogate mother is not legally the parent of said child. This could result in a child being born without citizenshiSurrogacy laws by country
Further information: Commercial surrogacy in India
India is a main destination for surrogacy. Indian surrogates have been increasingly popular with intended parents in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate’s fee, and delivery of the baby at a hospital. Including the costs of flight tickets, medical procedures and hotels, it comes to roughly a third of the price compared with going through the procedure in the UK.
Surrogacy in India is of low cost and the laws are flexible. In 2008, the Supreme Court of India in the Manji’s case (Japanese Baby) has held that commercial surrogacy is permitted in India. That has again increased the international confidence in going in for surrogacy in India. But as of 2014, a surrogacy ban was placed on homosexual couples and single parents.
There is an upcoming Assisted Reproductive Technology Bill, aiming to regulate the surrogacy business. However, it is expected to increase the confidence in clinics by sorting out dubious practitioners, and in this way stimulate the practice.
anks to store complete details of surrogates and donors. The certification to ART banks would be given by state boards. This independent body would have authority to register, maintain and monitor the functioning. The determination of the sex of the baby and ‘selective child birth’ through surrogacy is illegal. Surrogacy as medium of pregnancy and child birth would be considered as legal for the couples otherwise, proved to be incapable of give birth to a child and it is not a ‘convenient mode’ of having a baby without readiness of beating pain of pregnancy and delivery. Commercial use of surrogacy for cloning or mass production would be strictly prohibited.
Landmark Judgments on Surrogacy:-
Baby Manji Yamada vs. Union of India: In the Landmark case Baby Manji Yamada v. Union of India, a Japanese couple, Dr. Ikufumi Yamada and his wife, wished to have a baby and entered into a surrogacy contract with an Indian woman in Anand, a city in the state of Gujarat where this practice was pioneered. The couple went through matrimonial discord but the father still insisted on having custody of the child. Under Indian Lawa single father cannot adopt a girl child. He sent his mother in his stead and a petition was filed before the Supreme Court. The Government seemed to be helpless in this matter as there were no laws governing the effect of surrogacy. The Apex Court directed that the National Commission for Protection of Child Rights was the apt body to deal with this issue. Justice Arijit Pasayat and Justice Mukundakan Sharma of the Supreme Court held that the father was the genetic father of the child and he was given custodial rights of the child. The Government was instructed to issue the passport to Manaji Yamada and she returned with her grand –mother. Most importantly, the Supreme Court held that the Surrogacy Agreement was valid in India. What is most noticeable in the Baby Manji Yamada case is that the stance of the Court was not only pro-surrogacy it was also extremely pro-contract. The contract was held to be valid and therefore of most importance even though what the Court granted went against a particular legislation in the country. Jan Balaz v. Anand Municipality: More recently in the matter of Jan Balaz v. Anand Municipality, a German couple entered into a contract with a surrogate mother named Marthaben Immanuel Khrishti. Twin children were born. The German couple was working in the United Kingdom and the children required Indian passports to travel. Since their citizenship was being litigated in the courts the passport authorities withheld the passports. Germany, the parent state of the German couple did not recognize surrogacy. The Supreme Court denied the passports but granted an exit permit to the children and the German authorities decided to give the couple an opportunity to adopt the children and fight for their rights. The Supreme Court of India also recommended the emergent legislation of a law on surrogacy. The Bench headed by Justice G.S. Singhvi and Justice C.K. Prasad said that no surrogate child should undergo the difficulties faced by Nicolas and Leonard who were already two years of age by the time this decision was made and had still not been granted citizenship in any country. It is clear that in the case of Jan Balaz the contract proved to be insufficient in demarcating the rights of the parties and it also brought out residual issues such as citizenship and identity that are matters of vital importance to the children but do not find place in the surrogacy agreement. In both the above case laws the courts take a very pro-contract stand possibly as a way of encouraging commercial surrogacy, which contributes millions of dollars to India’s economy.
Commercial surrogacy is now illegal in India after a bill passed in August 2016.
The United States is sought as a location for surrogate mothers by some couples seeking a green card in the U.S., since the resulting child can get birthright citizenship in the United States, and can thereby apply for green cards for the parents when the child turns 21 years of age. However, this is not the main reason. People come to the US for surrogacy procedures, including to enjoy a better quality of medical technology and care, as well as the high level of legal protections afforded through some US state courts to surrogacy contracts as compared to other countries. Increasingly, homosexual couples who face restrictions using IVF and surrogacy procedures in their home countries travel to US states where it is legal.
commercial or altruistic.
Gainful surrogacy is made illegal by the Charter of Fundamental Rights whose Article 3 states that “making the human body and its parts as such a source of financial gain” is prohibited.
Commercial surrogacy arrangements are not legal in the United Kingdom. Such arrangements were prohibited by the Surrogacy Arrangements Act 1985. Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship is recognised under section 30 of the Human Fertilisation and Embryology Act 1990. Regardless of contractual or financial consideration for expenses, surrogacy arrangements are not legally enforceable so a surrogate mother maintains the legal right of determination for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made, the surrogate mother remains the legal mother of the child.
Ethical issues that have been raised with regards to surrogacy include:
To what extent should society be concerned about exploitation, commodification, and/or coercion when women are paid to be pregnant and deliver babies, especially in cases where there are large wealth and power differentials between intended parents
• and surrogates?
• To what extent is it right for society to permit women to make contracts about the use of their bodies?
o To what extent is it a woman’s human right to make contracts regarding the use of her body?
o Is contracting for surrogacy more like contracting for employment/labor, or more like contracting for prostitution, or more like contracting for slavery?
o Which, if any, of these kinds of contracts should be enforceable?
o Should the state be able to force a woman to carry out “specific performance” of her contract if that requires her to give birth to an embryo she would like to abort, or to abort an embryo she would like to carry to term?
• What does motherhood mean?
o What is the relationship between genetic motherhood, gestational motherhood, and social motherhood?
o Is it possible to socially or legally conceive of multiple modes of motherhood and/or the recognition of multiple mothers?
• Should a child born via surrogacy have the right to know the identity of any/all of the people involved in that child’s conception and delivery
The clearest argument for supporting surrogacy is that it allows couples who want a family, but who were prevented from having one by infertility, to have a child. Another argument is that people should be allowed to make personal arrangements with a surrogate as long as this arrangement does not harm others. As well, supporters claim that the child’s rights can be protected if legal provisions are adequate and enforced. Supporters also argue that if a couple would go to such lengths to have a child, this child would very much be wanted and loved. Finally, proponents of surrogacy believe that most surrogate mothers are motivated by altruistic concerns for other women to have children, and that even if receiving payment, most entered the industry on the grounds of helping others.
The arguments against surrogacy include a consideration of the interests of the surrogate mother and the rights of the child. Some issues include:
• What happens if the surrogate mother or commissioning 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?
Surrogacy arrangements involve not only the couple and the surrogate mother, but the child as well. Therefore, some argue that society has a right to prohibit surrogacy in order to prevent the child from undesirable circumstances. Some also argue that surrogacy arrangements are in reality contracts for the purchase of a child, which are quite unacceptable .
There has also been some religious opposition to surrogacy. For example, the Vatican has issued a statement rejecting surrogate motherhood, finding that it is not morally licit because it is contrary to unity of marriage and the dignity of procreation of the human person.