The Surrogacy (Regulation) Bill, 2016 proposes for legalization of altruistic surrogacy among the familial relations of the intending couples seeking to have a child through surrogacy involving a close female relative of the same couple as surrogate mother for altruistic reasons. There is complete prohibition on payment of monetary returns to surrogate mother except for insurance.
There are serious issues associated with this familial altruistic surrogacy arrangement.
One of the major lacunas in this scheme of familial Surrogacy Bill is the absence of surrogacy agreement between the couple and the surrogate mother, gametes donors.
Altruistic surrogacy among family relatives is largely based on mutual reciprocal promises relying on degree of personal relationship, trust and good faith among the family relatives. The main force binding the altruistic surrogacy arrangement is the mutual trust, faith between such family members not the statutory law.
The altruistic surrogacy arrangement leaves the entire arrangement to be conducted among the will of the respective family members, it is solely upto to the choice or discretion of the family members either to record in writing or otherwise.
This kind of altruistic surrogacy arrangement may not necessarily be in writing or this may be merely verbal or oral or in electronic form as online via email exchanges or chat box conversation or even WhatsApp message exchanges depending on the feasibility of convenience of such family members, these are largely informal in nature for legal purposes.
Under this altruistic surrogacy arrangement, there is no procedural compliances followed, there is no formal agreement or a memorandum of undertaking or written compulsory recording of intent of parties and their obligations and rights associated with this arrangement.
Under this bill, there is no scope for formal written legal document complying with legal procedural formalities as affidavits, notary, stamp therefore in case of differences among the relatives or refusal by the surrogate to hand over the child to the couple post birth, such agreements may have no standing before the court of law.
Certain crucial legal eventualities remain unaddressed in the absence of surrogacy agreement, in case the surrogate mother wishes to terminate the surrogate pregnancy through abortion or if she changes her mind post conceiving or any time during the course of pregnancy for any reasons best known to herself or if she wishes not to disclose the reason for the same to the couple.
Further, if the surrogate mother initiates emotional blackmailing or raises demands for money or share in property among the family members as a prior condition to handover the child or as a condition to terminate pregnancy.
In all these, there is no legal recourse available for the helpless infertile couple but to rely on the familial ties as there would be no written legal documentation of proof to be adduced before any court of law in the absence of a surrogacy agreement, this can only increase the anxiety, stress of the already infertile couple who are probably seeking their last resort to family formation through such surrogacy!
These scenarios are not far fetched considering the early customary practice of Niyoga practised in few parts of India. Niyoga permits property to be inherited by a widow if she bears a child for any closed relative sharing the same bloodline or family ancestry. Under such circumstances, there is only likelihood of custody disputes over the child as well as property disputes within the family. There are legal issues in establishing testamentary rights in surrogacy arrangements pertaining to the child born of surrogacy; this may give scope for familial disputes concerning inheritance, property issues.
Furthermore, it is not clear in the absence of any mandatory legal provision, if the genetic identity of the gametes donors, surrogate mothers, couples intending to take custody of the child, raise the child post birth would be recorded or not, the particular dates of procedures of embryo implantation in surrogate mother, the recording of intent of the family members respectively to be part of this arrangement, the responsibility of surrogate mother to cooperate with the couple throughout pregnancy and then to subsequently relinquish custody of the child to the couple after birth, if all these necessary details would be recorded or otherwise! There is a huge amount of uncertainty looming over the certainty of child’s parentage, stability of family under this altruistic arrangement.
Another grave legal issue is the fact that, during the course of labour, the surrogate mother’s name would be entered in the hospital records or registers as the woman giving birth under the Birth Registration Act. Under the Indian Evidence Act, a woman giving birth is presumed as the mother for all legal purposes and her name is entered by the local authorities in the birth certificate of the child as the mother following the hospital records. Hence the existing legislation favours the surrogate as the mother in contrary to the wishes of the intending couples.
Other related eventualities concerning such pregnancies remain unidentified under the altruistic surrogacy arrangement and the determination of the onus or liability for the same appears vague! On the other side, considering the condition of the close family relative in the bill, the surrogate and the couples being close relatives are likely to share the same ancestry or kinship ties, and so there is greater likelihood of the surrogate mother developing emotional attachment with the surrogate child thereby refusing to hand over the child, causing family disputes, emotional wrangles surrounding the custody and parentage of the child.
For all the above mentioned reasons and several such practical considerations, this altruistic surrogacy arrangements are likely to give rise to serious legal suits on the determination of parentage, custody rights, taking after parentage the suits on property or testamentary rights bearing on several aspects of law. For these reasons, there may be legally contesting issues in the establishment of parentage of surrogate child, since parentage of child post birth may change from the intent of parties expressed before birth.
The author, Sonali Kusum, is Assistant Professor of Law at Tata Institute of Social Sciences (TISS), Mumbai. She has submitted her PhD thesis on Surrogacy and her views are included in the Parliamentary Standing Committee on Health & Family Welfare Report No. 102 on The Surrogacy (Regulation) Bill, 2016. She is also a member of the International Surrogacy Forum. You may write to her at firstname.lastname@example.org.
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