Surrogacy Alias womb on rent

By:  Dr. Umesh Jindal On:  February 9, 2013 4:23 AM

Dr. Anupam Gupta

“Sorry! Your uterus is damaged beyond repair. You cannot bear a child!” Tears rolled down her cheeks after hearing this announcement from the doctor which seemed like death sentence for Rita (name changed), 30 years old.

After 4 miscarriages and 2 years of infertility treatment encompassing IUI, laparo hysteroscopy and IVF, Rita was totally drained out financially, physically and emotionally. She didn’t have the energy or emotional stamina to keep trying. She thought adoption was her only alternative until her doctor suggested surrogacy. At first instance she rejected it but her husband slowly convinced her that she could have a genetic child and be very close to the pregnancy even if she could not carry the child herself. The child would bear the traits of the family like big beautiful eyes of mother or the sharp wits of father. This made her come to terms with surrogacy and turned a painful beginning into a very hopeful future

Surrogacy is an arrangement in which a woman carries and delivers a child for another couple or person. In come cases the uterus is so much damaged by disease (e.g. tuberculosis) that its lining fails to develop with any medicine. In others, repeated D & C may strip the uterus of the basal layer of endometrium such that regeneration does not occur. Still there are cases such as absence of uterus (Mullerian agenesis) or a chronic health problem which make it impossible for the intended mother to carry a child. In such cases, surrogacy is a viable option.

According to the ART BILL 2010, rights and duties in relation to Surrogacy

  • Both the couple or individual seeking surrogacy through the use of assisted reproductive technology, and the surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable.
  • All expenses of the surrogate related to a pregnancy and delivery shall be borne by the couple or individual seeking surrogacy.
  • Notwithstanding anything contained in sub-section (2) of this section and subject to the surrogacy agreement, the surrogate mother may also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate.
  • A surrogate mother shall relinquish all parental rights over the child.
  • No woman less than twenty one years of age and over thirty five years of age shall be eligible to act as a surrogate mother under this Act. Provided that no woman shall act as a surrogate for more than five successful live births in her life, including her own children.
  • Any woman seeking or agreeing to act as a surrogate mother shall be medically tested for such diseases, sexually transmitted or otherwise, as may be prescribed, and all other communicable diseases which may endanger the health of the child, and must declare in writing that she has not received a blood transfusion or a blood product in the last six months.
  • Individuals or couples may obtain the service of a surrogate through an ART Bank.
  • If the first embryo transfer has failed in a surrogate mother, she may, if she wishes, decide to accept on mutually agreed financial terms, at most two more successful embryo transfers for the same couple that had engaged her services in the first instance. No surrogate mother shall undergo embryo transfer more than three times for the same couple.
  • The birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of individual / individuals who commissioned the surrogacy, as parents.
  • The person or persons who have availed of the services of a surrogate mother shall be legally bound to accept the custody of the child / children irrespective of any abnormality that the child / children may have, and the refusal to do so shall constitute an offence under this Act.
  • Subject to the provisions of this Act, all information about the surrogate shall be kept confidential and information about the surrogacy shall not be disclosed to anyone other than the central database of the Department of Health Research, except by an order of a court of competent jurisdiction.
  • A surrogate mother shall not act as an oocyte donor for the couple or individual, as the case may be, seeking surrogacy.
  • A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple/ individual. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate.
  • A foreign couple or a non-resident Indian couple, seeking surrogacy in India shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after the pregnancy till the child / children are delivered to the foreigner or foreign couple or the local guardian. Further, the party seeking the surrogacy must ensure through proper documentation (a letter from either the embassy of the Country in India clearly and unambiguously stating that (a) the country permits surrogacy, and (b) the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple/individual.
  • A couple or an individual shall not have the service of more than one surrogate at any given time.
  • A couple shall not have simultaneous transfer of embryos in the woman and in a surrogate.
  • Only Indian citizens shall have a right to act as a surrogate, and no ART bank/ART clinics shall receive or send an Indian for surrogacy abroad.
  • Any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act that would harm the foetus during pregnancy and the child after birth, until the time the child is handed over to the designated person(s).

Determination of status of the child –

  • A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through sexual intercourse.
  • If a foreigner or a foreign couple seeks sperm or egg donation, or surrogacy, in India, and a child is born as a consequence, the child, even though born in India, shall not be an Indian citizen.

Right of the child to information about Donors or Surrogates –

  • A child may, upon reaching the age of 18, ask for any information, excluding personal identification, relating to the donor or surrogate mother.
  • Personal identification of the genetic parent or parents or surrogate mother may be released only in cases of life threatening medical conditions which require physical testing or samples of the genetic parent or parents or surrogate mother.