Note: Surrogate motherhood involves a woman bearing the child of another couple. In gestational surrogacy, a woman’s eggs are viable but she cannot carry the child to term (possibly due to uterine cancer). In this case, the embryo is externally formed by in-vitro fertilization (IVF) of the husband's sperm and wife's ova, and then implanted in a surrogate mother's womb. Where the woman cannot produce viable eggs, the two parties enter into a contract with another woman to be artificially inseminated with the husband's sperm through IVF. This is called traditional surrogacy.1 In the case of India, we will be focusing on gestational surrogacy, when the child is genetically linked to the contracting couple. 2
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“The legal issues in the United States are complicated, having to do with the fact that the surrogate mother still has legal rights to that child until they sign over their parental rights at the time of the delivery. Of course, and there’s the factor of costs. For some couples in the United States surrogacy can reach up to $80,000… You have no idea if your surrogate mother is smoking, drinking alcohol, doing drugs. You don’t know what she’s doing. You have a third-party agency as a mediator between the two of you, but there’s no one policing her in the sense that you don’t know what’s going on.” - Julie3
Surrogacy is not a worldwide fertility option. It has been rejected by voters in Sweden, Spain, France, and Germany; for instance, commercial surrogacy has been banned in France, where in 1991 its highest court ruled that “the human body is not lent out, is not rented out, and is not sold.”4 Even in the countries that do allow it, including South Africa, the UK, and Argentina, independent ethics committees are employed to evaluate surrogacy requests on a case-by-case basis.5
In the US, norms and regulations often vary widely among states. Commercial surrogacy is legal in some states such as California, illegal in others and is subject to different regulations everywhere.6 In one example of a particularly complex case, Buzzanca v. Buzzanca, an infertile married couple wanted to have a child, and obtained anonymous egg and sperm donations to form a genetically unrelated embryo via IVF. The embryo was implanted in the womb of a surrogate, who was also married. However, before the pregnancy came to term, Mr. Buzzanca filed for divorce, claiming that there were no children born to the marriage, and he was not responsible for the child born to the surrogate, financially or otherwise. The California lower court ruled in his favor and concluded that the child had no lawful parents based on three findings: (1) the surrogate and her husband stipulated that they were not the biological parents; (2) Mrs. Buzzanca could not be the child’s mother because she had neither contributed the egg nor given birth; and (3) Mr. Buzzanca could not be the child’s father because he had not contributed the sperm and, therefore, had no biological relationship with the child. Mrs. Buzzanca appealed. The appellate court reversed, holding that the intended parents, the Buzzancas, are by law, the natural parents of the child.7
The Buzzanca decision illustrates the difficulty in defining the parent-child relationship when alternative reproductive technology services are utilized. To further illustrate the state-by-state variations on surrogacy laws, the facts of the Buzzanca case would result in at least four potentially different outcomes in nine states’ specific statutory provisions:
- four of the nine states (i.e., Arizona, Florida, North Dakota and Virginia) would find the surrogate and her husband, neither of whom made a claim in Buzzanca, to be the legal parents of the child;
- two of the nine states (i.e., Nevada and New Hampshire) would agree with California and find the commissioning couple to be the legal parents of the child;
- two of the nine states (i.e., Michigan and Utah) would determine parentage on the basis of the best interests of the child; and
- one of the nine states (i.e., Nebraska) would find the sperm donor, who was anonymous in Buzzanca, to be the legal father of the child.8
It is not hard to understand why couples in these countries may exhaust the options available at home and turn abroad with their hopes for children. Compared to the relatively institutionalized surrogacy contracts in the US and other locations, where embryo implantation attempts are agreed upon, contracts are backed by judicial laws, and the post-birth rights of the surrogate mother are delineated, surrogacy contracts in India are quite limited. Under guidelines issued by the Indian Council of Medical Research (ICMR), surrogate mothers sign away their rights to any children, oftentimes with a thumbprint if she is illiterate.9 A surrogate’s name is not even on the birth certificate. This eases the process of taking the baby out of the country, but does little to clarify some of the legal and ethical uncertainties of the practice.
Deepa Kharb, Ph.D, a lecturer in law at the Institute of Law and Management Studies in Gurgaon, India, has written an article highlighting artificial reproduction and subrogation in the Indian context, involving the contract of sale between the married couple and the surrogate.10 The Indian surrogate mother bears much more risk than surrogate mothers in more-regulated countries. Beyond the right to the child or the physical risks of pregnancy, Indian medical guidelines allow doctors to implant five embryos into a surrogate, whereas in Britain, the maximum is two and many European countries are moving towards a single embryo implant. Further, under British laws a surrogate mother who has provided an egg can claim the baby back within two years of child's birth. In India, she has no right over the child after delivery. She can cancel the contract only when it is proved that it was not a valid contract according to section 23 of Indian Contract Act.
- Until very recently, there has been no law concerning surrogacy in India, which has been legal since 2002. The Indian Council for Medical Research has laid down certain guidelines for clinics practicing artificial reproductive technologies (ART) and their handling of surrogates. In February 2008, the Indian Ministry of Women and Child Development considered recommending legislation to govern surrogacy, but so far this is not imminent.11 Because of the absence of regulatory polices, there remains little legal recourse for rural Indian women if the pregnancy develops complications. According to Dr. Anirruddha Malpani, director of the Malpani Infertility Clinic, a “legal vacuum” persists where even a successfully resolved dispute could take up to 10 years in the Indian court system.12 There are pros and cons to the lack of government involvement. On the one hand, growth in the private sector can proceed without heavy taxation or restrictive barriers. However, it is unclear if a black market of surrogacy will develop, or whether these surrogacy contracts will hold in a court of law: if disputes should arise, there is no legal mechanism to protect the parties involved.
1 For more information, visit “Types of Surrogacy” on the American Surrogacy Center website, http://www.surrogacy.com/Articles/news_view.asp?ID=13
2 Quoted in Judith Warner, “Outsourced Wombs,” New York Times, 3 Jan 2008, http://warner.blogs.nytimes.com/2008/01/03/outsourced-wombs/?scp=1-b&sq=surrogate+india&st=nyt
3 Rachel Cook and Shelley Day Sclater, ed. Surrogate Motherhood: International Perspectives. Oxford: Hart Publishing, 2003.
4 Anuj Chopra, “Childless Couples look to India for Surrogate Mothers,” Christian Science Monitor, 3 April 2006, http://www.csmonitor.com/2006/0403/p01s04-wosc.html
5 Interview with Hank Greely, Stanford Center for Bioethics.
6 Elaine A. Lisko, “California Appellate Court Holds Divorcing Spouses Who Were Intended Parents of Child Resulting from Anonymous Egg and Sperm Donors and Brought to Term by Surrogate to Be Legal Parents of Child,” Health Law and Policy Institute, 8 April 1998, http://www.law.uh.edu/healthlaw/perspectives/Reproductive/ 980408Child.html
9 Deepa Kharb, “Assisted Reproductive Techniques Ethical And Legal Concerns.”The Internet Journal of Law, Healthcare and Ethics.4.2 (2007)
11 Dr. Malpani, “Let’s Ban Surrogacy,” 5 Feb 2008, http://doctorandpatient.blogspot.com/2008/02/lets-ban-surrogacy.html