Topic: Altruistic surrogacy
Topic in Syllabus: GS Paper 1: Social Issues
- According to the new Surrogacy (Regulation) Bill, approved by the Lok Sabha last week, it includes contracting a ‘close relative’ as a surrogate by a heterosexual married couple who have been childless for five years of their marriage.
- This line separates altruism from the commercial tinge that surrogacy carries with it.
Surrogacy regulation across the world:
- In the U.K., laws on surrogacy allow only altruistic arrangements where the surrogate can be paid only ‘reasonable expenses’.
- The fluidity in defining reasonable expenses means that this should ideally include payment for medical treatment, and in-vitro fertilisation (IVF) but may include other ‘expenses’.
- In most of Australia, altruistic surrogacy entails restricted in different parts of the world, varying levels of legal restrictions, or complete bans are practised pre-approved payments to the surrogate, including for diet during the pregnancy, and/or for the medical treatment.
- However, altruism also entails the provision that the surrogate is the legal mother of the child, which can be transferred to the parents through a legal process, including adoption.
- In many countries in Europe, the act of gestation defines motherhood, even though the egg used for the pregnancy through IVF may belong to the couple entering the arrangement.
How does altruistic surrogacy work?
- The surrogacy process is generally the same for altruistic surrogacy as it is for commercial surrogacy.
- However, most intended parents in altruistic surrogacy arrangements work with surrogates they already know.
- Because of the incredible selflessness required of altruistic surrogates, many are women who volunteer their gestational services for their siblings, children, or other close family members or friends.
- These arrangements are known as “identified surrogacy” because the intended parents and surrogate have already found their match before working with a surrogacy professional.
- Identified surrogacy puts intended parents and surrogates a few steps ahead in the surrogacy process and eliminates the need for an agency’s matching services. However, it is highly recommended that intended parents and identified surrogates work closely with a surrogacy professional throughout the remainder of the process to complete the necessary legal and medical requirements, and to provide the surrogate any support she made need.
The Surrogacy (Regulation) Bill, 2016:
- Surrogacy is an arrangement whereby an intending couple commissions a surrogate mother to carry their child.
- The intending couple must be Indian citizens and married for at least five years with at least one of them being infertile. The surrogate mother has to be a close relative who has been married and has had a child of her own.
- No payment other than reasonable medical expenses can be made to the surrogate mother. The surrogate child will be deemed to be the biological child of the intending couple.
- Central and state governments will appoint appropriate authorities to grant eligibility certificates to the intending couple and the surrogate mother. These authorities will also regulate surrogacy clinics.
- Undertaking surrogacy for a fee, advertising it or exploiting the surrogate mother will be punishable with imprisonment for 10 years and a fine of up to Rs 10 lakh.
Key Features of the bill:
Purposes for which surrogacy is permitted
- The Bill prohibits commercial surrogacy, and allows altruistic surrogacy. Altruistic surrogacy does not involve any monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding basic medical expenses and insurance coverage.
- The Bill permits surrogacy when it is:
- for intending couples who suffer from proven infertility
- not for commercial purposes
- not for producing children for sale, prostitution or other forms of exploitation
- For any other condition or disease specified through regulations.
Eligibility criteria for the intending couple and the surrogate mother
- The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority. The surrogate mother too needs a ‘certificate of eligibility’.
- A certificate of essentiality will be issued to the intending couple upon fulfilment of the following conditions:
- a certificate of proven infertility of either or both of them;
- an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
- Insurance coverage for the surrogate mother.
- The certificate of eligibility to the intending couple is issued upon the fulfilment of the following conditions:
- the couple being Indian citizens and married for at least five years;
- between 23 to 50 years old (wife) and 26 to 55 years old (husband);
- they do not have any surviving child (biological, adopted or surrogate), except if the child is mentally or physically challenged or suffers from a life threatening disorder;
- Such other conditions that may be specified through regulations.
- To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to:
- be a close relative of the intending couple
- be an ever married woman having a child of her own;
- be 25 to 35 years old
- Not have been a surrogate mother earlier; and
- have a certificate of medical and psychological fitness.
Parentage and abortion of surrogate child
- A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.
- An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority. Further, this authorisation will have to be compliant with the Medical Termination of Pregnancy Act, 1971.
Appropriate authority and registration of surrogacy clinics
- The central and state governments will appoint one or more appropriate authorities. The functions of the appropriate authority include:
- granting, suspending or cancelling registration of surrogacy clinics;
- enforcing standards for surrogacy clinics; and
- Investigating and taking action against complaints of breach of the Act.
- Surrogacy clinics cannot undertake surrogacy or its related procedures unless they are granted registration by the appropriate authority. Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.
- This application will be accepted or rejected within 90 days. No human embryo or gamete can be stored by a surrogacy clinic for the purpose of surrogacy.
National and State Surrogacy Boards
- The central and state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSBs), respectively.
- Functions of the NSB include:
- advising the central government on surrogacy policy;
- laying down the code of conduct of surrogacy clinics; and
- Supervising the functioning of SSBs.
- Functions of the SSBs include:
- monitoring the implementation of the provisions of the Act; and
- Reviewing the activities of the appropriate authorities functioning at the state/union territory level.
Offences and penalties:
The Bill creates certain offences which include:
- undertaking or advertising commercial surrogacy
- exploiting the surrogate mother
- Selling or importing human embryo or gametes for surrogacy.
- These offences will attract a penalty of 10 years and a fine of up to 10 lakh rupees.
Role of the surrogate:
- As per the new Surrogacy Bill, the surrogate in India continues to fulfill her role as a gestate.
- In keeping with the insistence on gestational surrogacy, which makes the use of IVF and other assisted reproductive technologies mandatory.
- The current Bill is faithful to the Indian Council of Medical Research’s Draft Assisted Reproductive Technology (Regulation) Bill, 2010.
- The latter has governed the practice of surrogacy till the Surrogacy Bill of 2016 banning commercial surrogacy comes into effect.
- Motherhood did not belong to the surrogate; she was trained to think of herself as a gestate, as research by Amrita Pande suggests.
- The relinquishment of the child was an absolutely essential clause within the draft bills on commercial surrogacy, and in practice in the surrogacy contract.
Commercial surrogacy situation in India
- The commercial surrogacy arrangement in India was an exchange of money for services.
- The clinics and surrogacy agents went to great lengths to transform the commercial element of the surrogacy arrangement, primarily identified as the surrogate’s fees, into gift-giving, and sacrifice.
- The motherhood could be for sale is a matter of distress and shock.
- The altruistic surrogacy is not very different from its opposite commercial variant.
- Unlike the U.K., altruism in India is being defined through the tie of kinship, not through the exchange of payment for ‘services rendered’.
- Here, kinship and family hide the commercial element entailed in seeking a surrogate from among close relatives.
- Thus, much of the criticism against the Surrogacy Bill in Parliament points toward the lack of definition that the category of the ‘close relative’ carries.
- The Transplantation of Human Organs Act (THOA), 1994, as a parallel to the conversation on altruism and its linkages with commercial surrogacy.
- The Act prescribes that organ donors are allowed to donate their organs before death only to ‘near relatives’.
- Donating organs to ‘strangers’ or not near relatives before death is not allowed, and may be approved of only through the authorization committee.
- The category of the ‘near relative’ appears again in a similar vein to the ‘close relative’.
- But unlike the Surrogacy Bill, the THOA identifies ‘near relatives’ as ‘spouse, son, daughter, father, mother, brother or sister’.
- It’s a closed group of relatives within the structure of the nuclear family unit — members who may not be eligible to be surrogates, unfortunately.
Pros of Altruistic surrogacy:
- Altruistic surrogacy is generally less expensive than commercial surrogacy because intended parents do not pay their surrogate.
- Altruistic surrogacy is legal in many U.S. states and countries where commercial surrogacy is banned, making it a more widely available option for intended parents.
- Intended parents pursuing an identified altruistic surrogacy may feel a greater peace of mind and stronger sense of trust throughout the pregnancy because it is being carried by a close family member or friend.
Cons of Altruistic surrogacy
- Most altruistic surrogates are close friends or family members of their intended parents. Intended parents who are not pursuing identified surrogacy are not likely to find a match with an altruistic surrogate through an agency’s matching services.
- Altruistic surrogates may feel underappreciated or even exploited at times, and friends and family members may feel pressured to enter a surrogacy arrangement in which they do not receive compensation. These situations could potentially have a negative impact on the intended parents’ relationship with the surrogate.
- Intended parents may feel less in control of the surrogacy when the surrogate is not compensated; for example, some intended parents may feel hesitant to make specific requests of the surrogate because they are not paying her in exchange.
Key Issues and Analysis:
- The Bill permits surrogacy only for couples who cannot conceive a child. This procedure is not allowed in case of any other medical conditions which could prevent a woman from giving birth to a child.
- The Bill specifies eligibility conditions that need to be fulfilled by the intending couple in order to commission surrogacy. Further, it allows additional conditions to be prescribed by regulations. This may be excessive delegation of legislative powers.
- The surrogate mother and the intending couple need eligibility certificates from the appropriate authority. The Bill does not specify a time limit within which such certificates will be granted. It also does not specify an appeal process in case the application is rejected.
- The surrogate mother must be a ‘close relative’ of the intending couple. The Bill does not define the term ‘close relative’. Further, the surrogate mother (close relative) may donate her own egg for the pregnancy. This may lead to negative health consequences for the surrogate baby.
- For an abortion, in addition to complying with the Medical Termination of Pregnancy Act, 1971, the approval of the appropriate authority and the consent of the surrogate mother is required. The Bill does not specify a time limit for granting such an approval. Further, the intending couple has no say in the consent to abort.
- Despite exempting gay couples, single men and women, and live-in couples from seeking surrogacy, not clearly defining the regulative mechanisms within altruistic surrogacy.
- The very regressive approval for couples with differently-abled children to opt for surrogacy, the Bill does seek certain important changes.
- The push towards adoption is very welcome, as is the waiting period of five years.
- The popularity of IVF and other assisted reproductive technologies stems from a problematic conceptualisation of infertility itself, pushing couples to opt for invasive intervention within a year of unprotected coitus.
- Now it is to go back to understanding why and how the desire for children is socially mediated to help couples seeking surrogates, and vice versa.
What do understand by Altruistic surrogacy? And discuss how the recent new Surrogacy (Regulation) Bill will separates altruism from the commercial tinge. And give an account of Commercial surrogacy in India.