Surrogacy
 Concept of Renting A Womb

The word ‘surrogate’ has its origin from a Latin word ‘surrogatus’, meaning a substitute, that is, a person appointed to act in the place of another. Surrogacy is a practice whereby a woman agrees to become pregnant and bear a child for another person or persons, to whom she intends to transfer the child’s care at, or shortly after, birth. If the pregnant woman received compensation for carrying and delivering the child (besides medical and other reasonable expenses) the arrangement is called a commercial surrogacy, otherwise the arrangement is sometimes referred to as an altruistic surrogacy. According to another classification, surrogacy can be traditional, gestational and donor surrogacy. Traditional surrogacy involves the artificial insemination of the surrogate mother by using the sperm of the intended father. Gestational surrogacy, on the other hand, involves the creation of an embryo in a Petri dish and its implantation into the womb of the surrogate who carries it to the term. Lastly, in donor surrogacy there is no genetic relationship between the child and the intended parents as the surrogate is inseminated with the sperm, not of the intended father, but of an outside donor.

A standard definition of ‘surrogacy’ is offered by the American Law Reports in the following manner:
“…a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the child’s birth.”

In Re Baby M 109 N.J. 396,537 A.2d 1227,1988 N.J.77 A.L.R.4th 1 The Sterns entered into a surrogacy contract with the Whiteheads whereby Mrs. Whitehead would bear the child of Mr. Stern through artificial insemination and relinquish custody of the child to the Sterns upon birth. Once the child was born Mrs. Whitehead found herself unable to part with the child, and sought to retain custody. The Court found that the surrogacy contract was unenforceable because it violated state statutes and public policy. Nonetheless, based solely on the best interests of the child custody was granted to the Sterns, with visitation rights to Mrs. Whitehead.

Legalization Of Surrogacy In India
India legalized commercial surrogacy in 2002. The combination of the low cost of infertility treatment in India – nearly one-quarter of the cost in developed nations – and the modern assisted reproductive techniques available here make India a top choice for infertility treatments, according to the Indian government's medical tourism website. The Confederation of Indian Industry predicts that commercial surrogacy will grow to be a $2.3-billion industry in India by 2012.As costs of medical treatment are low in India, it is proving to be an attractive hub for foreigners to procure benefits of medical tourism; especially surrogacy Commercial surrogacy is emerging and doctors and surrogate mothers are engaging into profiteering as evident from numerous newspapers accounts of surrogate women citing money as the main reason for engaging in such arrangements. Women are being compelled by their in-laws to engage in this emerging “business” and the not-so distant dreams of a high standard of living, luxuries and a secure future for their children are driving women to make money through surrogacy. The status-conscious lower middle class is resorting to surrogacy for fulfilling its material and financial needs.

As far as the legality of the concept of surrogacy is concerned it would be worthwhile to mention that Article 16.1 of the Universal Declaration of Human Rights 1948 says, inter alia, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family”. The Judiciary in India too has recognized the reproductive right of humans as a basic right. For instance, in B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which characterised the right to reproduce as “one of the basic civil rights of man”. Even in Javed v. State of Haryana, though the Supreme Court upheld the two living children norm to debar a person from contesting a Panchayati Raj election it refrained from stating that the right to procreation is not a basic human right.

Now, if reproductive right gets constitutional umbrella, surrogacy which allows an infertile couple to exercise that right also gets the same constitutional protection.

Law Commission Report
To legalize surrogacy, The Law Commission of India has submitted the 228th Report on “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights and Obligations of Parties to a Surrogacy.” 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 consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. However, such an arrangement should not be for commercial purposes.

· A surrogacy arrangement should provide for financial support for surrogate child in the event of 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 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 biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, 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 parent(s) only.
· Right to privacy of donor as well as surrogate mother should be protected.
· Sex-selective surrogacy should be prohibited.
· Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation.

The Union Healthy Ministry has passed the Assisted Reproductive Technologies (ART) regulation Bill. According to the bill, anyone acting as a surrogate mother should be between 21-35 years and cannot give birth to more than five children (including her own). The bill has now been sent to the law ministry.

The bill comprises some landmark stipulations:
• Surrogate mothers are not allowed to undertake embryo transfer for the same parents over three times.
• To have a married woman as a surrogate mother, her spouse’s consent is obligatory.
• Only an Indian citizen can be considered for surrogacy within India and women cannot be sent abroad for surrogacy.
• The donor’s identity has to be kept strictly confidential.
• A prospective surrogate mother should not engage in any act that may harm foetus during the pregnancy period or after birth.
• The baby’s birth certificate should bear the name of those individuals who had commissioned the surrogacy.
• In case of any congenital abnormality, the commissioning parents would have to take the child’s custody.

In commercial surrogacy agreements, the surrogate mother enters into an agreement with the commissioning couple or a single parent to bear the burden of pregnancy. In return of her agreeing to carry the term of the pregnancy, she is paid by the commissioning agent for that. The usual fee is around $25,000 to $30,000 in India which is around 1/3rd of that in developed countries like the USA. This has made India a favourable destination for foreign couples who look for a cost-effective treatment for infertility and a whole branch of medical tourism has flourished on the surrogate practice. ART industry is now a 25,000 crore rupee pot of gold. Anand, a small town in Gujarat, has acquired a distinct reputation as a place for outsourcing commercial surrogacy.

Conclusion
Surrogacy involves conflict of various interests and has an impact on the primary unit of society viz. family. Non-intervention of law in this emotion yet complicated issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. Active legislative intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto. The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.
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# Assisted Reproductive Technology (ART) Glossary
# American Law Reports, Validity and Construction of Surrogate Parenting Agreement, 77 A.L.R. 4 70. (1989).
# Medical Tourism Booms in India, Economic Times, February 7, 2006.
# AIR 2000 A. P. 156
# 316 US 535
# (2003) 8 SCC 369
# 228th law commission report
# 228th law commission report

The  author can be reached at: priyapareek@legalserviceindia.com