Surrogacy and its consequences on the Right of the child & Surrogated Mother
[As a new scientific process and social engineering, it is very hard to predict fall out and consequences of Surrogacy, on the child, surrogated mother and adoptive family specifically and at the community at large in general. This is an area which requires in depth discussion within communities and even scientific fraternity.]
Surrogacy is a scientific, innovative Technological procedure, aimed at providing child / children to an infertile individual/couple. At this point of time, in a globalised world where ICT (Information, communication and Technology) has penetrated every walk of human life, Surrogacy has become / is becoming new technology ridden, social reality which has wider implication and application on the right of the child/ children, Surrogated mother/Donors and parents (the parents who have sought surrogacy).
The word "surrogate", from Latin "subrogate", means "appointed to act in the place of". The intended parent(s) is the individual or couple who intends to rears the child after its birth. Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child's genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.
Recently Till now in the absence of a statute to govern surrogacy, various issues relating to the right and duties of various agencies and persons involved in this process are unaddressed. The issue could get sorted out only through judicial intervention.
Ministry of Health & Family welfare along with Indian Council of Medical Research has formulated Bills on Surrogacy titled as Assisted Reproductive Technology (Regulation) Bill & Rules – 2008.
Primarily it has got two parts:
I) Assisted Reproductive Technologies Bill 2008
II) Assisted Reproductive Technologies Rules 2008
The bill introduces this new concept of surrogacy along with various new institutions for its regulation of procedures etc. Bill brings in concepts like;
I) National Advisory Board which is Quasi Judicial Authority comprising Maximum 21 members. Major function of this Board to make procedural & Provisional rules Regulations pertaining to entire process of surrogacy or Assisted Reproductive Technology.
Primarily Surrogacy has been put under State List that can be said it has been kept under the jurisdiction of states and Union Territories for its practical implication & Applications.
II) State Advisory Board it has got Maximum member of 16 it is this Board practically every power to implement and execute every function of this bill & Rule. If any dispute occur between Registration Authority, ART Clinic semen bank and research agency pertaining to human embryo First appeal lies in State Advisory Board. There fore the whole responsibility of implementing of this bill and rule lies in the hand of State Advisory Board. So it is a focal and nodal power of this Bill and Rule.
III) Registration Authority is the license giving & inspecting practically powerful body constituting primarily bureaucratic elements .Its major function to give license infra-in structural revoke or cancelled licensed or renewed license.
IV) Details out various facilities and bodies like
A) ART clinic: physical Infrastructure & Manpower/ Stuff Gynecologists, Andrologist, Clinical embryologist, counselor, Program coordinator, Director
B) Semen Bank
C) Research Agency
Now as per child rights is concerned we would like to seek or note the intend and application of ART Bill & Rules 2008. Whether it is going to be transparent or accountable system of protecting the rights of Surrogated mother & child or it is going to be a commercialized promoting system of exploiting poor surrogated mother and leaving surrogated child emotionally, psychologically & culturally torned apart between parents/ genetic parents and surrogated parents. Most of the countries have banned commercialized private form of surrogacy, where as this Bill intended to promote and flourish commercialized and private surrogacy.
In view of stated above background we would like request esteemed panelists to discuss various aspects of the Assisted Reproductive Technologies (ART) Bill & Rules 2008 and after going through a detailed discussion and deliberation whatever conclusion we reach that will be submitted to Indian Council of Medical Research and Ministry of Health& Family welfare for required suggestions and modifications in Assisted Reproductive Technologies (ART) bill & rules 2008.
Focus of the workshop will be:
§ Rights of the Child
§ Right of the Surrogated Mother
§ Regulatory and adjudicatory mechanism on surrogacy within Rights of the child
In detail the various aspects of Rights of the Child, Right of the Surrogated Mother & Regulatory and adjudicatory mechanism on surrogacy within Rights of the child critical and requiring in-depth discussion and debate within community and medical and legal fraternity are;
A) Right of the child
Linkage with other existing laws relating to Children
Determination of the status and identity of the child in the reference to “right to identity” as a right: at the time of Birth the relation ship with Surrogated Mother,
Right of the abnormal or with disable child born out of surrogacy. To whom the responsibility will be laid?
Tackling the Emotional problem faced by the child due to involvement of so many parties:
a) Surrogated Mother
b) Donors/ Genetic parents
c) Patients/ parents
If the child goes to the foreign parents/ patients and if the child is exposed to abuse in later life, what will be regulatory mechanism to protect the child?
If the child reaches at the age of 18 and the information revealed to him that he is a surrogated child what will be the emotional impact on him / what will be socio-cultural acceptance of the child: linkage with childhood
Does he have the same social reintegration or rehabilitation as normal biological children in society?
What will be the status of the child or redress machinery to the child if the parents get divorced before/after the birth of the child as it happened in the case of Manji.
If a single parent made a contact for surrogacy, unfortunately he/she died before/ after birth, what will be the emotional, psychological, educational and financial security of the child.
There is no mention in the bill whether individual from different sexual diversity( gay/ lesbian) would have the right to go through surrogacy or not,
If after the surrogated child, the parent gets a biological/normal child, the possibility of getting the same affection or care from the parents will be minimized to the surrogated child.
If surrogated mother or the donor has some genetic disease that leaves disability or chronic illness in the child, which was not detected in the process of surrogacy, what will be the judicial status of the child?
No involvement of Child Welfare Committee/ Juvenile Justice Board/No reference of Juvenile Justice Act
If child is born with the genetic characteristics of one race, taken by the parents of another race and region –psychological characteristics of child will bring discriminatory remarks/ adjustment problem.
When same child will become adult will question source of donor, surrogated mother and parent.
Scientifically whether the child will carry genetic parents / surrogated mother/parent’s behaviour, through socialization if he can’t get to that level, he may face problem.
Whether surrogacy will lead to trafficking or not?
Inheritance right of the surrogated child will be always disputed.
B) Right of the Surrogated Mother
Poor woman who will be lured to surrogacy she will face following social stigma:
1. If she is bachelor who will marry to her?
2. If she is married, does her husband allow her go for surrogacy for altruistically or for a economic reason?
3. Semen bank or advertisement for surrogated mother will breed a chain of brokery as it happens in case of adoption.
4. this may cause to trafficking as it has been seen and experienced in the case of prostitution, poor states likes Bihar, Orissa, Eastern UP, some pockets of West Bengal, and Nepal will be the source area of surrogated mother due to poverty. So surrogacy will have corresponding relationship with poverty as it has with prostitution.
5. Would emotional trauma and wound of a surrogated mother be compensated by monetary compensation, if she doesn’t have any right emotionally upon a delivered child – isn’t it an invasion upon emotion of a woman due to her poverty? – In case of altruistic surrogacy isn’t woman be treated as an object in the hands of man/ men in the family? Can we call it dominance of patriarchal set of mind?
6. Can an illiterate woman understand the meaning of consent form/ that is a contractual right and obligation of a consented party in respect of following matters which may cause to a surrogated mother?
· Ovarian hyper stimulation
· Anesthetic procedures
· Invasive procedures such as laparoscopy, possibility of multiple pregnancies and risks associated with them
· Ectopic gestation
· Increase rate of spontaneous abortion
· Premature birth
· Higher prenatal or infant mortality
· Other side effects
Health Insurance of the surrogated mother after child is handed over to the parents
Consent of spouse: as it is mentioned in the bill that the donor has to obtain the consent in writing of his or her spouse, but the reality says that in reproductive matter the low level of negotiating right is given to poor and illiterate woman in India, so how it is going to be helpful in a commercial objection with little scope for spousal objection?
C) Regulatory and adjudicatory mechanism on surrogacy within Rights of the child
Structure & function of the National Advisory Board
Power & Function of the State Board
Constitution & function of the Registration Authority
Procedure for registration & complaints
Duties & Responsibilities of ART Clinic
Donor & surrogacy related offences & Punishment
Scope of commercialization: Need of an authority to check and balance all the process from the advertisement to the delivery.
Prepared by Mr. D Yadav, Member, QIC&AC Delhi issues requiring further debate.
