The BBC UK has come out a news article about surrogacy in India. You can find the article here.
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.
The foremost concern of the Intended Parents embarking on surrogacy is, “How do I take my child back to my country?”
This issue has gained major importance, and may be is one of the main reasons as to why Intended Parents choose India as the destination for surrogacy. The laws of various countries on surrogacy vary differently and therefore every national is placed on a very different footing.
European states such as the UK, Italy and few others have been dealing with surrogacy in a conservative manner, thus not making available the full benefits which could otherwise be derived out of assisted reproduction. The legal position of these countries is that the surrogate, who delivers the baby, shall be regarded the actual mother of the child, and her name be entered in the birth certificate of the baby. The Intended Parents (or the Genetic Parents) are required to take in adoption from the surrogate and her spouse. These laws do not give surrogacy the legal sanctity of ‘alternative form of reproduction’ but merely views them as an addition to adoption.
On the other hand, the American approach to surrogacy is completely liberal. Commercial surrogacy is an accepted form of Assisted Reproductive Techniques. The legal issues for American Couple coming down to India are far simpler compared to the European Nations. But again, a large number of American parents have come down to India, mainly because; the scientific improvements are kept at pedestal, which is not commercially reachable by the common man.
APPLICATION OF INDIAN LAWS
The application of the Indian Laws for the Intended Parents from abroad is their most worrying element. When the Intended Parents come down to India for surrogacy, the scenario is completely different and gains major importance.
The applicability of the Indian Laws is the same irrespective of the nationality of the intended parents. Laws of the respective of the countries play a role only at the stage when the intended parents attempt to take the child to their nations. But in most cases, for the purpose of determining of the nationality of child, Indian Laws are of prime importance.
The consulate of the country of Intended Parent has to be consulted before we arrive at a decision to take up the procedures in India. For this purpose, effective communication and representation at the Embassy gains prime importance.
SINGLE PARENTING AND SAME SEX PARENTING
With regard to gay/lesbian parenting and single parenting, the European laws are very restricting. Most of those intended parents, take up the procedure as single parents in India, and then to take the baby back to their home country. And in these cases also, the Consulate of the country in India concerned has to be consulted and informed.
DETERMINATION OF LEGAL POSITION-IMPORTANCE
In India, when a child is born using a surrogate, the Birth Certificate shall bear the name of the genetic parents, helping the Intended Parents take their child to their home country. And thus, before embarking on surrogacy, the Intended Parents must have complete knowledge about the laws applicable in this regard. Such knowledge gathered beforehand helps in proper decision making. This also helps cut down the delay that arises after the birth of the surrogate child. Hence, the intended parents should consider such factors before making the decision as to what country to take up surrogacy.
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.
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.
Last week has been quite a busy for us at Indian Surrogacy Law Centre. We had given out our first advertisement in a regional language newspaper calling for surrogates.. In fact, the newspaper company refused to take up this advertisement calling for surrogates. Then, we had our representatives sent to their office to educate them about the Indian Council for Medical Research Guidelines for ART Clinics authorising Law Firms to source surrogates for the Intended Parents. We had to give them a copy of the Guidelines so that they feel confident about their work. And when the advertisement was out, I have to admit that the response surprisingly good.
Chennai, earlier called as Madras, is known for being quite a classical town and a very positive response from such a traditional city was quite surprising for us. The enquiries were quite high and I saw many women leading a normal household life coming forward for being a surrogate. I think women folk in India have come to realise the truths of surrogacy and have started looking at it as a good deed. The approach of the prospective surrogates was quite encouraging, I should admit.
We had individual counseling given to every applicant, explaining them from scratch about the legalities and the procedures involved in going as a surrogate. We also had to graphically explain to the surrogates to make sure that they are aware of what they are entering into. The toughest part in the whole session was explaining to the surrogates in their regional language to make sure that they understood everything. We did fair well in that too. We then had to make sure that they understood every aspect of surrogacy, before got the application form filled up.
The applicants seemed really happy that they attended the counselling session and kept probing for more details. This again is a sign to show that they have understood the inner aspects of surrogacy and are clear about the details of the same. I am in the process of now developing a booklet in the regional language of the surrogate applicant, which explains every aspect of the surrogacy, the legalities and even the rights of the surrogates.
I am sure that is going to take us a great step forward. I am looking forward for educating every interested woman about surrogacy. In India, the exposure to such an option is not much prevalent. We are planning to have our advertisement released in an English Daily next week. I shall keep you people posted.
Indian Surrogacy Law Centre recommends the following pointers for choosing of the right surrogate mother:
a) The surrogate needs to be a practical person who is completely aware of every possibility with regard to surrogacy. For this purpose, a proper medical and legal counselling to the surrogate would suffice in the normal circumstances.
b) The surrogate should understand that surrogacy is not a typical pregnancy procedure and there are more issues connected to it which are more complicated.
c) The surrogate also needs to understand that the possibility of conceiving through this method is not that simple and not easy. More importantly, that getting pregnant is something which is not in her hands.
d) The Surrogate must clearly understand that surrogacy is very time consuming and that it takes more a year. The surrogate should not be totally dependent on that money which is coming through surrogacy, as the surrogate tends to become hysterical until the receiving of the money.
e) The surrogate should realise that she will be given a lot of medication and injections during the term of the pregnancy and she should be ready to go through these pains.
f) The spouse of the surrogate must not only accept the process of the surrogate taking part in the surrogacy, but he should also encourage the surrogate. It has been understood that the surrogate would be facing undesirable family problems in cases where she volunteers without the knowledge or acknowledgement of her spouse. More importantly, the surrogate spouse should have been informed about all the possibilities of the surrogacy.
g) The surrogate should be aware of selective reduction. The surrogate mother must clearly understand that conceiving of more than one baby is an inherent possibility and there are high chances for it to take place. In such cases, selective reduction would be a normal process. The surrogate mother should accept selective reduction, if the need arises. Multiples are very common in surrogacy and it cannot be assumed that it cannot happen in your case.
h) The surrogate should fix her own fees to see what according to her is the proper remuneration according. In most of the cases, this would also enable the Intended Parents to understand the attitude of the surrogate.
i) It is most appropriate that the surrogate has had prior proven pregnancies. The whole procedure of surrogacy is extremely expensive for the Intended Parents. The Intended Parents take up all the expenses incurred in this lengthy procedure. It has to be taken into consideration that where the surrogate has already had a proven pregnancy, it would enhance her quality as a surrogate as she has proved her capacity as a child bearer already.
j) Surrogate would be facing unexplainable hardship in parting with the child which she had borne for the term. In such cases, it is most advisable that the surrogate has already got children to whom she can return back, after handing over the child to the Intended Parents.
k) Though the surrogate may be ready mentally for handing over the child, the imbalance of hormones which takes place during the time of pregnancy might bring in mood swings for the surrogate and might destruct all her mental stability. In such cases, it is most advisable that the surrogate mother has already got childrens to whom she can get back after the surrogacy.
l) There exists a possibility that the surrogate mother might never be able to conceive again after undergoing surrogacy. It is most advisable that the surrogate mother has already given birth to children, so that she would not feel exploited in cases the surrogacy leaves behind a situation where she can never bear a child again.
m) The surrogate mother should be a woman of courage who will be able to face independently various constraints which are emotional as well societal.
n) The surrogate mother must take her own independent and autonomous decision to act as a surrogate and to bear the child. The decision to act as a surrogate should not come out of compulsion or out of coercion. This is most important in country like India where woman are not independent to make decisions.
The experience of motherhood is a wonderful experience and the surrogate should wilfully come forward for doing it. It is only then that the Intended Parents as well the surrogate go through the process conveniently and comfortably. More importantly, it is a good deed and it is not advisable for anyone to feel exploited in the process.
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.