Surrogacy & associated issues (morality, ethical, legal, necessity & economic)

The primary purpose of marriage is often seen as procreation, fulfilling the natural desire to leave descendants. For childless couples, surrogacy serves as an alternative to adoption, offering a genetic connection with the intended parents. This method involves a surrogate woman agreeing to be impregnated through non-coital means, with the intention that the resulting child becomes the legal child of the intended parents upon birth. Surrogacy is a form of human assisted reproduction, encompassing complex legal, ethical, and emotional considerations, and its regulations vary globally.

Types of Surrogacy:

1.       Natural Surrogacy:

Ø  Involves the surrogate mother being pregnant with her biological child.

Ø  Child conceived with the intention of giving it to others, such as the biological father and his partner.

Ø  Insemination methods include artificial insemination using the intended father's sperm, intrauterine insemination (IUI), or intra-cervical insemination (ICI) at a fertility clinic.

2.       Modern/Gestational Surrogacy:

Ø  The surrogate is only a carrier and not genetically related to the child.

Ø  Involves implanting the surrogate with an embryo that is not her own.

3.       Donor Surrogacy:

Ø  Artificial insemination using the sperm of an outside donor, not the intended father's.

Ø  Only the surrogate is genetically related to the child.

4.       Altruistic Surrogacy:

Ø  The surrogate receives no monetary benefits; expenses are compensated by the intended parents.

Ø  No financial gain for the surrogate's pregnancy or the child's relinquishment.

5.       Commercial Surrogacy:

Ø  Involves payment to the gestational carrier, often chosen by higher-income infertile couples.

Ø  Also known as 'womb for rent' or 'outsourced pregnancy.'

Main Types of Surrogacy:

Traditional Surrogacy:

·         Process: Surrogate genetically related to the child as her own egg is fertilized with the intended father's sperm.

·         Genetic Connection: Surrogate serves as both gestational carrier and biological mother.

·         Legal Complexities: Legal issues may arise as the surrogate has a genetic relationship with the child.

Gestational Surrogacy:

·         Process: Surrogate's role limited to carrying the pregnancy; not genetically related to the child.

·         Genetic Connection: Genetic link between the intended parents (or donors) and the child.

·         Legal Considerations: Generally less legally complex than traditional surrogacy.

Within Gestational Surrogacy:

·         Traditional Gestational Surrogacy: Surrogate carries an embryo created with her egg and intended father's sperm or donor sperm.

Full or Host Gestational Surrogacy: Surrogate carries an embryo created using the eggs of the intended mother or an egg donor and the sperm of the intended father or a sperm donor.

Surrogacy in Western world

Gestational Surrogacy is currently possible in the following countries:

1)      Ukraine

2)      Georgia

3)      Kazakhstan

4)      USA

5)      Greece

6)      Mexico

Surrogacy in India

Surrogacy (Regulation) Act, 2021 Overview:

a) The act permits surrogacy for a widow or divorcee aged 35 to 45, or a legally married couple facing a medical need for surrogacy.

b) Requirements for the intended couple include legal marriage, the man's age between 26-55, the woman's age between 25-50, and no previous biological, adopted, or surrogate child.

c) Commercial surrogacy is prohibited, with a penalty of up to 10 years' imprisonment and a fine of Rs 10 lakhs.

d) Only altruistic surrogacy is allowed, where no monetary transactions occur, and the surrogate is genetically related to the intending parents.

Exclusions from Surrogacy Services: Unmarried women, single men, live-in partners, and same-sex couples are excluded, raising concerns of discrimination based on marital status, gender, and sexual orientation.

Recent Supreme Court Changes:

a) March 2023 amendment bans the use of donor gametes, requiring "intending couples" to use their own gametes.

b) A legal challenge argues this amendment violates a woman's right to parenthood.

c) The Court interprets "genetically related" to refer to the husband, emphasizing gestational surrogacy as "woman-centric."

d) Rule 14(a) requires the child to be related to the intended couple, particularly the husband, in gestational surrogacy.

e) Rule 7, banning the use of donor eggs, is stayed for women with Mayer-Rokitansky-Küster-Hauser (MRKH) Syndrome, a rare congenital disorder affecting the female reproductive system. The Court allows surrogacy using a donor egg for such cases

Challenges:

a) Exploitation Concerns:

·         Banning commercial surrogacy shifts from a rights-based to a needs-based approach, potentially infringing on women's autonomy and right to parenthood.

·         The Act lacks a balanced approach to address both the prevention of exploitation and safeguarding the child's right to be born.

b) Patriarchal Norms Reinforcement: Reinforces traditional patriarchal norms by assigning no economic value to women's work, impacting their fundamental right to reproduce under Article 21 of the constitution.

c) Emotional Complications:

·         Altruistic surrogacy involving friends or relatives as surrogates may lead to emotional complications for intending parents and the surrogate child.

·         Risks to relationships during and after surrogacy, and limited options in choosing a surrogate among relatives, are potential issues.

d) Limited Surrogate Options: Altruistic surrogacy restricts the choice of a surrogate, as few relatives may be willing to undergo the process, limiting options for intending couples.

e) Absence of Third-Party Involvement:

·         Altruistic surrogacy lacks third-party involvement, hindering the intended couple and surrogate mother in navigating medical and miscellaneous expenses.

·         Third-party involvement typically assists both parties in managing the complexities of the surrogacy process, which may be challenging in altruistic surrogacy

In Legal terms:

Ø  Altruistic Surrogacy: It involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.

Ø  Commercial Surrogacy: It includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

In legal terms, Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s). A surrogate, sometimes also called a gestational carrier, is a woman who conceives, carries and gives birth to a child for another person or couple (intended parent/s).

Surrogacy is essentially a contract of service by which a woman agrees to carry a baby in accordance to the terms of the contract. It basically involves 3 promises:

1.                   The surrogate who offers her services carries the baby according to the terms of the Contract, either in the capacity of the gestational mother or genetic mother.

2.                   The surrogate and her husband agree to relinquish all parental rights at the birth of the child and;

The intended parents agree to remunerate the surrogate for her service.

Legal Issues in Surrogacy: A Western Society in Indian Context

a) Validity of Surrogacy Contract: A key legal concern in surrogacy is the validity of the contract, which is essentially a service agreement. The Indian Contract Act, 1872, specifically Section 23, assesses the legality of considerations and objectives in contracts. An agreement is deemed unlawful if it goes against the law, is immoral, or opposes public policy.

b) Concept of 'Immorality' in Surrogacy: The legal concept of 'immorality' typically pertains to sexual immorality. Surrogacy involving AI/IVF, where cohabitation is not a factor, is generally not considered immoral.

c) Dynamic Nature of 'Public Policy': 'Public Policy' is a dynamic concept, evolving with societal trends and changing across generations. The foundation of public policy lies in promoting public good and preventing public harm. A contract that has the potential to harm public interest or welfare is considered contrary to public policy.

In navigating surrogacy legalities, understanding and addressing issues related to the law, morality, and public policy become critical aspects in the Indian context, where legal frameworks are essential to protect the rights and interests of all parties involved in surrogacy arrangements

Public Debate going forward

Surrogacy emerges as a viable option for childless couples when adoption is legally challenging. Whether commercial or non-commercial, surrogacy provides an alternative pathway to parenthood. Unlike adoption, surrogacy doesn't inherently impact public good or lead to public mischief. However, the legal landscape surrounding surrogacy is marked by confusion and uncertainty, highlighting the need for clear and comprehensive regulations to address the complexities and ensure the rights and well-being of all parties involved.

Surrogacy-morality & ethical issue

Surrogacy raises various moral and ethical considerations that have been subject to ongoing debate. Here are some key ethical issues associated with surrogacy:

a.       Autonomy and Reproductive Freedom: Proponents argue that surrogacy supports the autonomy and reproductive freedom of individuals, allowing them to make choices about their family-building options. Critics, however, express concerns about the potential exploitation of vulnerable individuals, including surrogate mothers.

b.      Exploitation and Informed Consent: There are concerns about the potential exploitation of surrogate mothers, particularly in cases where financial incentives may be the primary motivation. Ensuring informed consent, understanding of the potential risks, and fair compensation are critical ethical considerations.

c.       Commodification of Reproduction: Critics argue that surrogacy can lead to the commodification of reproduction, turning pregnancy into a commercial transaction. The concern is that financial transactions may overshadow the ethical considerations of creating and raising a child.

d.      Rights and Well-being of Surrogates: Ethical surrogacy practices prioritize the rights and well-being of surrogate mothers. Questions arise about whether surrogates are adequately protected, both legally and medically, and whether they have the right to make decisions about their bodies and the pregnancy.

e.      Psychological Impact on Surrogates: The emotional and psychological impact of surrogacy on the surrogate mother is a significant ethical consideration. It's important to ensure that surrogates receive adequate emotional support and counseling throughout the process.

f.        Selective Reproduction and Eugenics: The use of selective reproduction technologies in surrogacy raises ethical questions about the potential for eugenic practices. Concerns may arise when intended parents seek specific traits or characteristics in their surrogate-conceived child.

g.       Social Justice and Access to Surrogacy: There are concerns about the equitable access to surrogacy. Issues of social justice arise when only certain individuals or groups, typically those with financial means, can afford surrogacy services, potentially creating disparities in access to reproductive options.

h.      Parental Rights and Legal Protections: Establishing clear legal frameworks to protect the rights of all parties involved is crucial. Ethical surrogacy practices should prioritize the legal rights and responsibilities of intended parents, surrogates, and the child.

i.         Cultural and Religious Perspectives: Cultural and religious beliefs play a role in shaping attitudes toward surrogacy. Ethical considerations may vary based on cultural and religious contexts, and it's important to respect diverse perspectives while addressing ethical concerns.

j.        Children's Rights and Identity: Ethical considerations include ensuring that children born through surrogacy have access to information about their genetic and gestational origins. Addressing issues related to the child's right to know and understand their identity is crucial.

k.       International Surrogacy and Legal Variability: Cross-border surrogacy introduces additional ethical complexities due to variations in legal frameworks and practices across different countries. Ensuring consistency in ethical standards globally remains a challenge.

Arguments in favour of Surrogacy in modern times

Surrogacy, the arrangement in which a woman carries and delivers a child for another person or couple, has been a topic of ethical, legal, and social debate. In modern times, there are several arguments in favor of surrogacy:

a.       Infertility Solutions: Surrogacy provides a viable solution for individuals or couples who are unable to conceive and carry a child due to medical reasons such as infertility, recurrent pregnancy loss, or medical conditions that make pregnancy risky.

b.      Expanded Family Options: Surrogacy enables individuals and couples to have a child who is genetically related to one or both parents, overcoming the barriers imposed by infertility or same-sex couples who wish to have biological children.

c.       Advancements in Reproductive Technology: With the advancement of reproductive technologies, surrogacy has become a safer and more accessible option. In vitro fertilization (IVF) and other assisted reproductive technologies have increased the success rates of surrogacy procedures.

d.      Autonomy and Reproductive Choice: Surrogacy supports the principle of reproductive autonomy, allowing individuals and couples to make choices about their reproductive options. It enables people to exercise their right to choose when and how they become parents.

e.      Economic Opportunities for Surrogates: Surrogacy can provide financial opportunities for women willing to act as surrogates. In some cases, surrogacy can offer financial stability for women and their families, especially in regions where economic opportunities are limited.

f.        Emotional Satisfaction for Surrogates: Many surrogates derive satisfaction and a sense of fulfillment from helping others build their families. For some, the altruistic aspect of surrogacy is a driving force, and they find joy in being able to contribute to the happiness of another family.

g.       Legal Protections: With the establishment of clear legal frameworks, surrogacy can provide legal protections for all parties involved, including the intended parents and the surrogate. This helps in preventing potential disputes and ensuring a smoother process.

h.      Globalization and Cross-Border Options: The globalization of surrogacy allows individuals and couples to explore surrogacy options in other countries where it might be more accessible or legally straightforward.

i.         Evolving Social Norms: As societal norms evolve, there is an increasing acceptance of diverse family structures. Surrogacy is becoming more normalized, and public attitudes toward non-traditional family arrangements are changing.

j.        Medical Advancements for High-Risk Pregnancies: Surrogacy can be a safer option for individuals or couples who, due to medical conditions, may have a higher risk of complications during pregnancy. A surrogate can provide a healthy environment for the developing fetus.

Surrogacy in modern times for single parent working women or wealthy men

Surrogacy in modern times is increasingly being considered and utilized by single parent (working women and wealthy men) for various reasons:

I.            Empowerment of Single Working Women: Surrogacy provides an option for single working women who may choose to become parents without a partner. This can be particularly relevant for women who are focused on their careers and personal development but still desire to experience parenthood.

II.            Family Building for Single Parents: Surrogacy allows single individuals, whether women or men, to have a biological connection with their child. For wealthy men or financially stable women who are single, surrogacy can be an avenue for building a family on their terms.

III.            Career and Lifestyle Choices: Wealthy individuals, both men and women, may have demanding careers or lifestyles that make traditional parenting challenging. Surrogacy can offer a way for them to become parents without compromising their professional or personal goals.

IV.            Genetic Connection: Surrogacy allows individuals to have a genetic connection with their child. For those who value biological ties, this option can be particularly appealing, regardless of their relationship status.

V.            Resource Accessibility: Wealthy individuals may have the financial resources to afford the costs associated with surrogacy, including medical procedures, legal fees, and compensation for the surrogate. This financial capacity can make surrogacy a more accessible option.

VI.            Time Flexibility: For single working women or wealthy men with busy schedules, surrogacy allows for flexibility in terms of timing. They can choose when to embark on the surrogacy journey, taking into account their work commitments and personal preferences.

VII.            Control over the Process: Surrogacy provides individuals with a significant degree of control over the reproductive process. From selecting the surrogate to making decisions during the pregnancy, intended parents can actively participate in the journey to parenthood.

VIII.            Support Systems: Single parents, especially those who are financially well-off, may have the means to establish strong support systems. This can include hiring childcare assistance and creating a nurturing environment for the child.

IX.            Legal Protections: In many jurisdictions, there are legal frameworks in place to protect the rights of all parties involved in surrogacy arrangements, including single parents. This can provide a level of security for individuals pursuing surrogacy.

X.            Changing Social Norms: As societal norms evolve, there is an increasing acceptance of diverse family structures. Single-parent families, formed through surrogacy or other means, are becoming more normalized, reducing stigma and judgment.

Surrogacy necessity & economic reasons

Surrogacy can be viewed as a necessity for some individuals or couples due to various medical, biological, or personal reasons. Economic considerations can also play a role in the decision to pursue surrogacy. Here are some factors related to surrogacy necessity and economic reasons:

a.       Infertility and Medical Conditions: Infertility is a common medical reason for pursuing surrogacy. Individuals or couples who are unable to conceive or carry a pregnancy to term due to medical conditions may turn to surrogacy as a viable option to build their families.

b.      Recurrent Pregnancy Loss: Some individuals or couples may experience recurrent pregnancy loss, making it challenging to carry a pregnancy to full term. In such cases, surrogacy can offer a solution by involving a gestational carrier to carry the pregnancy on behalf of the intended parents.

c.       Medical Risks to the Intended Mother: When the intended mother faces medical risks or health conditions that make pregnancy risky, surrogacy can provide a safer alternative. This is particularly relevant for women with pre-existing health issues or those who have undergone treatments that may affect their ability to carry a child.

d.      Same-Sex Couples and Single Individuals: Same-sex couples and single individuals may choose surrogacy as a means to have a biological connection to their child. For same-sex male couples and single men, surrogacy is the primary option for biological parenthood.

e.      Delaying Parenthood for Career or Personal Reasons: Individuals, especially women, who choose to delay parenthood for career or personal reasons may face biological challenges when they decide to have children. Surrogacy can be a solution that allows them to have biological children at a later stage in life.

f.        Financial Stability: Economic reasons can play a role in the decision to pursue surrogacy. While surrogacy involves costs related to medical procedures, legal processes, and compensation for the surrogate, individuals or couples with financial stability may find surrogacy more accessible.

g.       Availability of Surrogacy Services: The availability of surrogacy services, including clinics, agencies, and legal support, may vary geographically. In some regions, surrogacy may be more accessible, leading individuals or couples to consider it as a feasible option.

h.      Employment and Lifestyle Demands: Individuals with demanding careers or lifestyles may find it challenging to go through the physical and emotional aspects of pregnancy. Surrogacy allows them to pursue parenthood without compromising their professional or personal commitments.

i.         Globalization and Cross-Border Surrogacy: Economic reasons may also drive individuals or couples to explore surrogacy options in countries where the costs are comparatively lower. Cross-border surrogacy can provide economic advantages for intended parents.

j.        Insurance Coverage: In some cases, insurance coverage for fertility treatments may be limited, and the financial burden of assisted reproductive technologies may lead individuals or couples to consider surrogacy.

Authors’ Views: Navigating the complex landscape of surrogacy involves a delicate balance between ethical considerations, individual freedoms, economic factors, and evolving societal norms. In the contemporary era, our society is undergoing a significant transformation, transitioning from traditional, conservative values to a more modern and practical outlook. As societal attitudes shift, the practice of surrogacy reflects these changes, requiring careful attention to checks and balances to ensure responsible and ethical implementation.

1. Ethical Considerations: The ethical dimensions of surrogacy demand a thoughtful and principled approach. Acknowledging the inherent dignity and autonomy of all individuals’ involved—intended parents, surrogates, and the child—is paramount. Ensuring that surrogacy practices align with principles of justice, fairness, and respect for human rights is crucial. Ongoing ethical discussions within society are crucial for fostering understanding and acceptance. As societal attitudes shift, there is a need for open conversations that consider diverse perspectives on surrogacy. These discussions should encompass ethical considerations related to autonomy, consent, the commodification of reproduction, and the potential for exploitation. Engaging in ongoing dialogue allows for the refinement of ethical standards and ensures that surrogacy practices align with evolving societal values.

2. Individual Freedom and Autonomy: Surrogacy is often considered within the context of individual freedom and reproductive autonomy. Individuals and couples have the right to make decisions about their reproductive choices, including the option to pursue surrogacy. Respecting and safeguarding these freedoms is essential for a society that values personal choice and autonomy.

3. Economic Considerations: Economic factors can significantly impact the accessibility of surrogacy. Striking a balance between the economic feasibility of surrogacy and ensuring fair compensation for surrogates is vital. Responsible surrogacy practices should guard against exploitation and prioritize the well-being of all parties over purely economic considerations.

4. Transparent Communication: Transparent communication is the cornerstone of ethical surrogacy. All parties involved, including intended parents, surrogates, and professionals facilitating the process, should engage in open and honest communication. Clear expectations, responsibilities, and potential challenges must be communicated to foster trust and minimize misunderstandings.

5. Comprehensive Legal Regulations: The establishment of clear and comprehensive legal frameworks is imperative for the ethical practice of surrogacy. These regulations should address the rights and responsibilities of all parties, including parental rights, surrogate protections, and the child's rights. Legal frameworks must adapt to evolving societal norms and technological advancements.

6. Ongoing Ethical Discussions: Ethical discussions surrounding surrogacy should be ongoing and inclusive. In a society that values diverse perspectives, ongoing dialogue fosters a deeper understanding of the ethical nuances involved. This includes discussions on the impact of surrogacy on families, the rights of children born through surrogacy, and the broader societal implications.

7. Societal Evolution and Adaptation: As societies evolve, so do their norms and values. The shift from conservative and religious norms to a more modern and practical outlook necessitates the adaptation of legal and ethical frameworks. Societal institutions, including legal systems and healthcare practices, must evolve responsibly to accommodate changing dynamics. The evolution from a conservative and religious society to a more modern and practical one reflects a broader shift in attitudes toward family structures and reproductive choices. As society transforms, checks and balances become imperative to safeguard against potential pitfalls. Striking a balance between individual freedoms and societal responsibilities is essential. This balance should be reflected in legal frameworks, ethical guidelines, and cultural norms to create an environment where surrogacy can be practiced responsibly and ethically.

8. Checks and Balances: The transition to a more modern and practical society requires checks and balances to ensure that the rights and well-being of all parties involved in surrogacy are safeguarded. This involves monitoring and adjusting regulations, addressing emerging ethical challenges, and promoting responsible and ethical conduct within the surrogacy industry.

In conclusion, the responsible practice of surrogacy in our evolving society demands a multi-faceted approach. Balancing ethical considerations, individual freedoms, economic factors, and the changing landscape of societal norms requires ongoing commitment, collaboration, and a dedication to prioritizing the well-being and rights of all individuals involved in the surrogacy journey. In this changing landscape, it is essential to acknowledge that surrogacy can be a positive force, offering a pathway to parenthood for individuals or couples facing fertility challenges. Responsible surrogacy practices align with the principles of autonomy, dignity, and justice, ensuring that the journey to parenthood is undertaken with consideration for the rights and well-being of all parties involved. As society continues to evolve, it is incumbent upon us to adapt our perspectives and practices, always mindful of the need for ethical, legal, and empathetic approaches to surrogacy.

Changes made in 2024:

Government allows donor egg & sperm (allow donor gamete for couples with medical condition) in surrogacy

In case when the District Medical Board certifies that either husband or wife constituting the intending couple suffers from medical condition necessitating use of donor gamete, then surrogacy using donor gamete is allowed.

What is donor gamete for couples in surrogacy?

Donor gametes are reproductive cells (sperm or eggs) provided by a third party, who is not intended to be the parent of the child. In the context of surrogacy, donor gametes may be used when one or both intended parents are unable to provide their own gametes due to infertility, genetic concerns, or other reasons. For example:

·         A couple may use donor sperm if the male partner has fertility issues or if they are a same-sex female couple.

·         A couple may use donor eggs if the female partner cannot produce viable eggs or has genetic concerns that they do not want to pass on to the child.

In some cases, both egg and sperm donors may be used, particularly if neither intended parent can provide viable gametes. These donor gametes are used in conjunction with assisted reproductive technologies, such as in vitro fertilization (IVF), to create embryos that are then transferred to the surrogate's uterus for gestation and childbirth.

This comes after the Supreme Court last year allowed a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome — a rare congenital disorder that affects the reproductive system and can cause infertility — to undergo surrogacy with a donor egg.

While very few people need surrogacy — it is only meant for those who do not have a uterus, have a damaged uterus, or have a thin uterine lining — among those who do, the women are likely to be older, having tried other methods of getting pregnant before considering surrogacy. This is the reason some of them would need a donor egg; this is a very positive decision.

The rule necessitating that both the egg and the sperm come from the “intending couple” was introduced in 2023. Prior to that, the rules allowed for donation of eggs but not the sperm.

The 'single' conundrum continues

The changes in surrogacy rules are not applicable to single women. The modified rules state: “Single woman (widow or divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure.” This comes even as questions are being raised in Indian courts over exclusion of single women from using surrogacy to have children.

The rule change is also not applicable for widowed or divorced women. It reads: “Single woman (widow or divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure.”