Times of India, dated 18th November 2008 reports that an Israeli gay couple Yonatan and Omer Gher had a child, which they named as Evyatar meaning ‘more fathers’ in Hebrew, through a surrogate mother at a fertility clinic at Bandra, Mumbai. Thankfully, the child found itself soon after its arrival the felicity of being cradled in the hands of two fathers but Baby Manji Yamada delivered at Anand, Gujarat few months earlier was not as lucky initially. The surrogate mother had abandoned the child at the hospital, the Japanese couple that hired the surrogate mother divorced and the grandmother flew in to India to take the child for her son after a delay of few months when the Supreme Court cleared the decks for its transportation to Japan, however on an Indian passport.
Surrogacy is normally referred in the context of a married couple (i) who have had multiple miscarriages; or (ii) who have failed repeated IVF attempts for unexplained reasons, seeking the help of a willing woman to bear the child. It is never an issue of convenience of woman unwilling to bear the burden of pregnancy and looking for a proxy. It is a painful decision, however willingly undertaken to take the responsibility of proud parenthood. With same sex marriages gaining social and legal approbation in many countries, gay couples seeking for surrogate mother to bear the child has become another distinct possibility. The media reports would have us believe that India is the preferred destination for surrogate mode of procreation; not because the laws afford a favorable climate but there exists no law to regulate this procedure.
The essence of surrogacy is that eggs are recovered from the ovaries of the 'commissioning mother' after in vitro fertilisation (IVF) stimulation. They are inseminated and fertilised in a laboratory and then a number of embryos are placed in the uterus of a 'surrogate mother' who has agreed to carry the child until birth and then surrender it to those with whom she had entered into an agreement. Traditionally a surrogate mother is inseminated with the male client’s sperms so that the child would share some genetic relationship with the couple. Now it is possible to use both donated egg and sperm or an embryo from persons outside the bond of marriage for the couple seeking a child.
The childless couple may have to enter into surrogacy agreement where all the terms requiring consent of the surrogate mother to bear the child, the medical procedures of artificial insemination, the right to be reimbursed in the reasonable expenses for carrying the child to full term and willingness to hand over in adoption the child that is born to the contracting couple, presumption relating to the parentage of the child. The inadequacies of law are glaring at every stage.
Dilemma of entering birth particulars
If a child is born to a surrogate mother by artificial insemination using the semen of a person not her husband, the issue of paternity may be a source of social predicament as to whose name shall be entered in the Birth Certificates. The Indian Evidence Act makes a conclusive presumption that a child that is born to a woman and a man during the subsistence of marriage as the child of the man. In a surrogacy arrangement, the mother is not the mother that bears and gives birth to the child and the father is not the man that is married to the woman that gives birth to the child. This statutory presumption will have to undergo a change to register the actual paternity. Adoption is resorted only if the biological (natural) parent and the adoptive parent are different persons. In surrogate parenthood, a biological parent may be the hiring parent and the person actual giving birth to the child may not be the biological parent. If the couples seeking a surrogate mother are foreigners, there is further problem of taking an Indian passport for the child and after taking the child out of the country with the permission of the Court and changing the nationality of the child later at the country of the commissioning parent(s), if Baby Manji Yamada’s case is any legal precedent.
In Australia, S. 6 of the Artificial Conception Act 1984 provides that a woman who becomes pregnant by means of (a) artificial insemination; or (b) the procedure of implanting in her womb an ovum (whether or not produced by her) fertilised outside her body, any man (not being, in the case of a married woman, her husband) who produced semen used for the artificial insemination or the procedure shall, for all purposes, be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy. (2) The presumption of law that arises by virtue of subs(1) is irrebuttable.
No guidelines for lawful expenses for bearing the child
There is again no law or guideline to suggest what shall be the lawful expenses that could be paid to a surrogate mother. For the usually uneducated Indian females who are involved in surrogacy business, it is a respectable way to earn a living and support themselves and their family. But a lot of surrogate mothers in India prefer to live incognito during this phase because of non-acceptance by the society in general. Also most surrogate mothers in India are reported to belong from the rural background where the lure of money is stronger than the wealthy metros. In the US, surrogate mothers are typically paid $15,000, and agencies claim another $30,000.According to Christian Science Monitory (issue, April 3, 2006)in India, the entire costs range from US $2,500 to $6,500. The industry is estimated to be valued at $449 million, and the number of cases of surrogacy is believed to have doubled in the recent years based on newspaper classifieds and inquiries at clinics. There are also no official figures on the number of surrogate births in India, but it estimated that about 100 to 150 occur annually in India, with the number of failed surrogacy attempts estimated to be much higher. The hard numbers remain elusive, partly because the practice is defused among small towns like Anand, Gujarat. What constitutes lawful expenses for bearing the child and what amounts to financial allurement or financial recompense for bearing the child are difficult to gauge.
In UK, under section 30(7) of Human Fertilisation and Embryology Act 1990 (the 1990 Act), no money or other benefit, other than for expenses reasonably incurred, could be given or received in relation to surrogacy, unless such payment had been authorised by the court. The Family Division of the English Court said in a 2002 case that the amount paid towards loss of earnings (when the surrogate mother was on state income support, which fact was not disclosed) to be apart from expenses for carrying the child, would be against law. Costs of surrogacy pursuant to a surrogacy agreement which an English woman had entered into with a Californian, who was to bear the child, was held to be not legitimate and opposed to public policy in another case before by the Queen’s Bench (2000), where the former complained that her ability to bear children had been negated by a medical practitioner treating her negligently and hence the compensation against the medical practitioner for medical malpractice should include ‘commercial surrogacy costs’.
The child born through the surrogate mother is normally expected to hand over to the couples on whose behalf the child is conceived. A characteristic which distinguishes surrogate parentage from situations in which conventional adoption takes place, and bears directly on what is to be perceived as the welfare and interests of the child, is that the child's existence is the result of an intended chain of events in which adoption is a contemplated step even at the stage of its conception. In an Australian case of Re A and B (2000) before the Supreme Court of New South Wales, an arrangement had been made with the sister of the wife of the donor of the sperm for surrogacy. After the child was born and when an application had been moved by the couple for taking the child in adoption from the birth mother through an application in Court, it was opposed by the NSW Department of Community Services. The department raised a number of arguments: the public policy of discouraging surrogacy arrangements; the potentially adverse emotional impacts of the child's conception and birth; the inability of the child to be consulted at this stage; the possibility of the commissioning parents deciding to observe secrecy about the child's origins; and the disturbance of ordinary family relationships if the birth mother became the child's aunt. The department suggested various alternative regimes of guardianship and parenting orders, which would still leave open the possibility of an adoption order at a later stage. The Supreme Court of New South Wales took notice of the following circumstances: The applicants took part in pre-natal appointments and pre-natal classes. They took a parental role towards the child from the time of her birth onwards. They were both present throughout the birth mother's labour, shared the same room at the hospital and participated in all decisions by paediatric staff. All remained at the hospital for 5 days and were discharged together. The child then went home with the proposed adopting parents and had been in their continuous care since then. The applicants did not plan to extend their family further. The birth mother's conduct had been appropriate for an aunt, well known to the child while having a relationship and a family of her own, and living in a distant place. There was also happy communication between the child and her half-sister. Overall relationships were happy and appropriate for two families where the wives are sisters and their daughters were cousins, and the sisters lived independent lives. It accordingly, rejected the objection and while granting the adoption order.
Existing legal framework, fragile
Surrogacy in India for parents living in foreign countries but desiring children through Indian mothers is outsourcing practice at its worst. It is not always gratuitous altruism that is at work for a woman in India to make the choice of surrogate motherhood. There is a greater need to prepare a sound legal framework, by amending existing laws relating to birth registration, evidence, embryo transplantation, adoption and guardianship. The already over-burdened courts will have to devise new ways of educating and sensitizing judges to handle legal and psychological issues of prevention of exploitation of surrogate mothers on account of indigency , deciding on suitability of adoption and guardianship of intending parents. All this is not to say that by providing for suitable laws, all the issues are fully addressed. The failure of the Organ Transplantation Act to check racketeering in trading of organs, especially in kidney donations ought to make us extra circumspect in dealing with the present requirements as merely a legislative exercise waiting to be solved through laws. Doctors, psychologists and social workers will have to be actively involved to provide unction to keep this cogwheel moving to secure informed public opinion and arrest scope for exploitation and unethical practices.