Understanding Surrogacy: Navigating the Complexities

Surrogacy, a practice that has gained significant attention and controversy in recent years, involves a woman carrying a child for intended parents, either through traditional or gestational methods. This intricate process raises ethical, legal, and emotional considerations for all parties involved. From definitions to legal frameworks, here’s an exploration of surrogacy, its nuances, and its status in India.

Definitions: What is Surrogacy?

Surrogacy is the arrangement in which a woman, referred to as the surrogate or gestational carrier, carries and delivers a child for another individual or couple, known as the intended parent(s). The surrogate may contribute her egg (traditional surrogacy) or have the embryo implanted in her uterus, which is created through in vitro fertilization (IVF) using the eggs and sperm of the intended parents or donors (gestational surrogacy).

Eligibility Criteria: Who Can Participate?

The eligibility criteria for surrogacy in India are defined by the Surrogacy (Regulation) Act, 2021. Here’s a summary of the key points:

For intending couples:

• Married: The couple must be legally married for at least 5 years.
• Age: The female partner must be between 23 and 50 years old, and the male partner between 26 and 55 years old.
• Infertility: At least one partner must have proven infertility. This requires medical documentation.
• No children: The couple cannot have any existing biological children together or from previous relationships.
• Surrogate: They must have a willing surrogate who meets the eligibility criteria (see below).

For surrogate mothers:

• Relationship: She must be a close relative of the intending couple (as defined by the Act).
• Married: She must be married and have at least one child of her own.
• Age: She must be between 25 and 35 years old.
• First-time: She can only be a surrogate mother once in her lifetime.
• Medical & psychological fitness: She must have a certificate of medical and psychological fitness for surrogacy.
• No egg donation: She cannot provide her own eggs for the surrogacy process.

Additional points:

• Surrogacy is strictly altruistic and no commercial surrogacy is allowed.
• Single individuals are not eligible for surrogacy.
• Same-sex couples are also not eligible under the current Act.
• The intending couple and surrogate mother must undergo mandatory counseling before proceeding.
• There are specific surrogacy agreements and legal procedures to be followed.

Commercial surrogacy is exploitative, cruel & treats women like brood mares.

UK ‘altruistic’ model is no better. Large sums of money changing hands, babies often not seeing their mothers again, women left with regret & birth injuries.

Stop surrogacy now.https://t.co/c0IpeM1Jun

— SurrogacyConcern (@SurrogConcern) June 22, 2023

Methods and Process: How Does Surrogacy Work?

Surrogacy typically involves several stages:

• Matching: Intended parents and surrogates are matched through agencies, clinics, or private arrangements.
• Medical Procedures: If using gestational surrogacy, eggs are retrieved from the intended mother or a donor, fertilized with sperm from the intended father or a donor, and implanted into the surrogate’s uterus.
• Pregnancy and Birth: The surrogate carries the pregnancy to term and delivers the baby.
• Legal Proceedings: Post-birth, legal procedures are undertaken to establish the parental rights of the intended parents and terminate any rights of the surrogate.

Types of surrogacy:

The two main types of surrogacy processes are based on the surrogate’s genetic contribution to the embryo:

1. Gestational surrogacy:

• Surrogate’s role: Carries the pregnancy but is not genetically related to the child.
• Egg source: Egg can come from the intended mother, a donor, or another source.
• Sperm source: Sperm can come from the intended father, a donor, or another source.
• Fertilization: Embryo is created through in vitro fertilization (IVF) and implanted in the surrogate’s uterus.
• Legal parentage: Intended parents become the legal parents from birth.
• More common type: Due to legal and ethical considerations, this is the most prevalent form of surrogacy today.

2. Traditional surrogacy:

• Surrogate’s role: Both carries the pregnancy and contributes her own egg to the child.
• Sperm source: Sperm typically comes from the intended father.
• Fertilization: Achieved through intrauterine insemination (IUI) using the intended father’s sperm.
• Genetic relationship: Surrogate is genetically related to the child as the biological mother.
• Legal parentage: Establishing legal parentage can be complex and vary by jurisdiction.
• Less common type: Due to legal and ethical concerns, this type of surrogacy is less common and may be prohibited in some regions.

Advantages of surrogacy:

Surrogacy can be a life-changing option for many people who wish to build a family. Here are some of the potential advantages:

• Allows individuals and couples to have children who may not otherwise be able to: This includes people with infertility, same-sex couples, and single individuals.
• Provides a genetic connection for intended parents: In gestational surrogacy, an embryo created with the intended parents’ genetic material can be implanted in the surrogate’s uterus.
• Can create a special bond between intended parents and surrogate: Sharing the pregnancy journey can lead to a strong and lasting connection.
• Offers potential health benefits for the baby: Gestational surrogates can provide a healthy environment for the baby to develop, which can be especially beneficial for couples with medical conditions that make pregnancy risky.
• May be less emotionally challenging than adoption for some people: The process of surrogacy can allow intended parents to be more involved in the creation of their family from the beginning.

What a balanced panel this looks like @DurhamGLAD https://t.co/rIK1YWcRc3

— SurrogacyConcern (@SurrogConcern) February 5, 2024

Disadvantages of surrogacy:

Surrogacy is a complex process with many ethical and legal considerations. Here are some of the potential disadvantages:

• Can be expensive: The cost of surrogacy can vary widely depending on factors such as location, agency fees, and medical expenses.
• Raises ethical concerns: Some people believe that surrogacy exploits women, particularly in countries with lax regulations.
• May lead to emotional challenges for all parties involved: The complex relationships involved in surrogacy can sometimes lead to emotional difficulties for the intended parents, the surrogate, and the child.
• Carries potential health risks for the surrogate: Pregnancy carries inherent risks, and surrogates may also be at risk for certain medical complications specific to surrogacy.
• Legal complexities: The legal aspects of surrogacy can be complex and vary depending on jurisdiction. It is important to seek legal counsel to ensure that all parties are protected.

Problems Associated with Surrogacy:

While surrogacy can offer a valuable means for family building, it also presents several legal complexities and potential problems. Here are some key areas of concern:

Parentage and Adoption:

• Establishing legal parentage: In gestational surrogacy, where the surrogate is not genetically related to the child, legal parentage needs to be established through court orders or adoption depending on jurisdiction. Delays or complications in this process can be emotionally distressing and financially taxing.
• Contested parentage: Disputes can arise between intended parents, the surrogate, or even a biological parent (e.g., sperm donor) regarding parental rights and responsibilities. These legal battles can be lengthy and expensive.
• International surrogacy: Legal parentage established in one country may not be automatically recognized in another, leading to further complications and potential child abduction risks.

Ethical and Exploitative Practices:

• Commercial surrogacy: While banned in India, it still exists elsewhere, raising concerns about exploitation of surrogate mothers, particularly in countries with lax regulations. Exploitation can involve unfair compensation, pressure to continue risky pregnancies, and limited access to healthcare.
• Lack of informed consent: Surrogates may not fully understand the legal, medical, and emotional implications of the process, potentially leading to coercion and exploitation.
• Psychological effects: Both surrogates and intended parents can experience emotional challenges and psychological distress throughout the process and even after the child is born.

Contractual Disputes:

• Breach of contract: Disputes can arise regarding financial agreements, medical procedures, or any other aspect outlined in the surrogacy contract. These can be complex and costly to resolve through legal means.
• Unforeseen circumstances: Complications like multiple births, birth defects, or surrogate health issues can lead to disagreements about responsibilities and financial burdens, requiring contract amendments or legal intervention.

Regulatory Gaps and Ambiguities:

• Surrogacy laws vary widely across countries: This can create confusion and challenges for intended parents or surrogates involved in international surrogacy arrangements.
• Emerging technologies: Advancements in reproductive technologies like surrogacy using genetic material from three individuals raise new legal and ethical questions regarding parentage, rights, and responsibilities.

Additional Concerns:

• Discrimination against children born through surrogacy: While rare, some societies might hold stigma or legal biases against children born through surrogacy arrangements.
• Long-term emotional well-being of the child: Questions remain about the potential impact of knowing their conception story and navigating complex family dynamics in surrogacy situations.

Laws Regulating Surrogacy in India:

The Surrogacy (Regulation) Act prohibits commercial surrogacy and allows only altruistic surrogacy for Indian citizens. Altruistic surrogacy involves no monetary compensation beyond medical expenses and insurance coverage for the surrogate. The law aims to prevent the exploitation of women while still allowing altruistic surrogacy to facilitate parenthood for those in need.

In India, surrogacy is strictly regulated by the Surrogacy (Regulation) Act, 2021, which came into effect in January 2022.

The Way Forward:

Surrogacy remains a complex and evolving practice, with ethical, legal, and social implications that require careful consideration. Moving forward, policymakers, healthcare professionals, and society at large must continue to engage in thoughtful dialogue and regulation to ensure that surrogacy is conducted ethically and responsibly, prioritizing the well-being of all parties involved.