This clipping shows the importance of a surrogacy contract. A Couple who had failed to enter into a proper, legally binding contract with the surrogate mother had to lose the court battle and the rights over the child. The Surrogacy Contract plays a very important role in surrogacy. Please click here to view the video.
I am presently meeting a lot of people, surrogates, Intended Parents, Doctors and Journalists. All of them seem to sound one voice of fear, “How safe is surrogacy in India?” Whenever this question is posed to me, I would restrict myself to an answer which most appropriate, “The answer depends on every case.”
It is well known that there is no Surrogacy Law in India, still it is held to be legal in India by the Highest Court of the Land. Now that is a great advantage for the people seeking surrogacy in India. There are many a reason why Intended Parents from all over the world prefer India as the destination for surrogacy, it is cost effective and easier than it is in other states, the medical service is very organised, the surrogates are healthy and the list goes on. In such circumstances, India is clearly a good choice for surrogacy.
Now, the question is how safe is it?
I would say it is VERY SAFE if all the required attention is being paid by the intended parent. The attention should start right from choosing of Assisted Reproductive Technology Hospital and sourcing the surrogate. The role of the Indian Council for Medical Research Guidelines steps in at this point. The guidelines are difficult to enforce, but it is actually a very effective document, which makes sure that there is some sort of regularity in the field. It is very important that the Intended Parents insists that these Guidelines are being followed by the hospitals. Along with those guidelines, I think it is most appropriate for the Intended Parents to follow the below mentioned tips:
Looking for the right Surrogate
Firstly, the Intended Parents have to look for the right surrogate who can understand everything bout this procedure, and someone who is happy in being serving as a surrogate. The quality of the surrogate is not based only on her physical attributes but it is also about her emotional inclination.
I have heard of cases where the hospital undertakes everything from sourcing of the surrogate, fix her renumeration, offering her the medical services, making her accomodation, providing her with the medical facilities etc. According to the ICMR guidelines, none of the above activities other than providing of medical services can be undertaken by the hospital. But is it not a pitiable situation that the surrogate is not even informed by the Hospital, whether she helping an Indian Intended Parent or Intended Parent from abroad. The reason given by the hospital is very simple; that the surrogate may look for more money if she knows that she is doing it for foreign intended parents. I am sure that most of intended parents are not going to be happy with this kind of an answer. The intended parents should choose a surrogate who can understand what the consequences of surrogacy, and someone who can share her feelings with the Intended Parents, rather than hide their identity from the surrogate. The intended parents should interact with the surrogates and feel the vibes before choosing her. I am sure this way the industry will not be named as “buying a baby.” A more humane approach is needed.
Indian Intended Parents are having a luxury compared to the intended parents from abroad. I have come across cases where the intended parents want the surrogate mother to stay with them, at their home for the term of pregnancy. Even better, I have a list of surrogates in my database who are ready for it, and who are happy to do it. That is the right spirit.
Thorough legal and medical counselling
The Intended Parents should make sure that the surrogate has gone through a thorough legal and medical counselling session, facilitating her to understand what she is undertaking. The legal and medical counselling attracts great importance in the procedure of surrogacy. The intended parent must employ a suitable independent legal counsellor who specialises in surrogacy, for making surrogate understand the legal aspects. More importantly, the counselling to the surrogate should be given in the local language of the surrogate. This will ensure that the surrogate is aware of what she is taking up.
Another important issue is that the surrogate should be counselled with at least one of relatives or friends. The surrogate should be given all possible information on the subject and she should be made to discuss this issue at home and with her family members before taking up surrogacy. There is immense importance attached to this step, as the Indian surrogates are under immense pressure from their family. A counselling to the family members of the surrogate will help remove the social stigma attached to it and the surrogates will come formward more willingly.
Surrogacy agreements
In India, surrogacy is purely a contractual understanding between the parties, which has been recently been pronounced legal by the Supreme Court of India. Care has to be taken that the agreement does not violate any of the laws, which do not in ay way match with surrogacy. I would say that each agreement has to be carefully drafted carrying these very essential points:
· Why does the intended parent opt for surrogacy
· Details about the surrogate
· What is the exact intention between the parties at time of entering into the agreement
· What is type of surrogacy? Gestational, traditional, altruistic, commercial?
· Is the question of motherhood resolved?
· What is the mentioning in the agreement about the paternity?
· Is the agreement as a whole and each clause individually valid as per the eyes of the Indian Law?
· Is the agreement a proper representation of your intentions?
· How is the compensation clause drafted?
· Does the agreement indicate clearly details with regard to the compensation in times unexpected of mis-happenings to the surrogate?
· Child no lien for dispute over the compensation
· Child’s custody with the Intended parents alone is legal custody
· How does the agreement strategize your paternity as there is no law recognizing surrogacy in India?
· What is the jurisdiction for the disputes arising out of the agreement?
Surrogates should be given good care
Surrogates should be given the best of care provided to surrogates else where in the world. I feel that it is worth spending on caring of the surrogate, taking care of her. I am sure that the Intended Parents are in complete agreement with me.
I am not sure if the ICMR would have thought of the Assisted Reproductive Hospitals running the show in surrogacy. I am hearing that there are a few clinics which takes care of everything, including providing of the accommodation for the surrogate. I am not very sure how good a practice is this. In any case, the surrogates should be given great attention and emotional support, so that they don’t carry the feeling they are exploited for a cheaper price. That is where the role of an independent legal counsel makes an appearance.
Need for an independent legal counsel for the Intended Parents in India
I feel the importance of an independent body that can take care of the affairs of the Foreign Intended Parents during the term of the surrogacy. This service shall make sure that the surrogate is given enough attention and that there is no arising of unpleasant times with the surrogates. The details on this shall be dealt by me in my next article.
The above mentioned tips do not absolve all problems from surrogacy. But these are very very effective steps, which avoids a lot of problem. The issue of surrogacy is more about human emotions. I think choosing the right people as the surrogate itself would avoid half the problems.
Overall, India is a very effective destination for surrogacy. There have been cases where problem arises. But, exceptions cannot be taken as examples. A careful cautious Intended Parent is likely to avoid all problem, making a wonderful surrogacy journey.
The following is the extract from the “Guidelines for Accreditation, Supervision and Regulation of Art Clinics in India, 2005”:
3.10.1 A child born through surrogacy must be adopted by the genetic (biological) parents unless they can establish through genetic (DNA) fingerprinting (of which the records will be maintained in the clinic) that the child is theirs.
3.10.2 Surrogacy by assisted conception should normally be considered only for patients for whom it would be physically or medically impossible/undesirable to carry a baby to term.
3.10.3 Payments to surrogate mothers should cover all genuine expenses associated with the pregnancy. Documentary evidence of the financial arrangement for surrogacy must be available. The ART centre should not be involved in this monetary aspect.
3.10.4 Advertisements regarding surrogacy should not be made by the ART clinic. The responsibility of finding a surrogate mother, through advertisement or otherwise, should rest with the couple, or a semen bank.
3.10.5 A surrogate mother should not be over 45 years of age. Before accepting a woman as a possible surrogate for a particular couple’s child, the ART clinic must ensure (and put on record) that the woman satisfies all the testable criteria to go through a successful full-term pregnancy.
3.10.6 A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate.
3.10.7 A prospective surrogate mother must be tested for HIV and shown to be seronegative for this virus just before embryo transfer. She must also provide a written certificate that (a) she has not had a drug intravenously administered into her through a shared syringe, (b) she has not undergone blood transfusion; and (c) she and her husband (to the best of her/his knowledge) has had no extramarital relationship in the last six months. (This is to ensure that the person would not come up with symptoms of HIV infection during the period of surrogacy.) The prospective surrogate mother must also declare that she will not use drugs intravenously, and not undergo blood transfusion excepting of blood obtained through a certified blood bank.
3.10.8 No woman may act as a surrogate more than thrice in her lifetime.