LEGAL POSITIONS OF SURROGACY IN VARIOUS COUNTRIES AND NEW LAW IN INDIA

REGULATING ART( ARTIFICIAL REPRODUCTIVE TECHNOLOGY) :-

INTRODUCTION:-

The word "surrogacy" comes from the Latin "surrogatus," which meaning "substitute" or "one

designated to act in lieu of another." Black's Law Dictionary defines it as the process of becoming

pregnant and giving birth to a kid on behalf of another person.

Surrogacy is defined as a "arrangement in which a woman agrees to a pregnancy, achieved

through assisted reproductive technology, in which neither the gametes belong to her or her

husband, with the intention of carrying it to term and handing over the child to the person or

organization that arranges for the surrogacy.”OR people on behalf of whom she is serving as a

surrogate; additionally, a "surrogate mother" is a woman who consents to have an embryo

created using the sperm of a man who is not her spouse, as well as an oocyte for another woman,

implanted in her in order to carry the pregnancy to term and give birth to the child(s).

"The practice by which a woman named as a surrogate mother becomes pregnant, bears a child

to give birth in order to give it to someone who cannot have children," according to the Merriam-

Webster dictionary, describes surrogacy.

Worldwide, surrogacy is becoming more and more common despite the ethical and controversial

problems associated with it, particularly in the west where adoption is difficult to come by.

According to research, one in six couples experience infertility issues. While some people get

through this circumstance with medical interventions, for others there is no support accessible.

Surrogacy can be helpful for couples in which one of the women had a hysterectomy, experienced

multiple miscarriages, or was born without a womb.

 

Understanding the idea of a commissioning parent is crucial to comprehending surrogacy. The

person or people for whom the child is to be born are often referred to as the commissioning

parent, sometimes known as the intended parent. When choosing a surrogate, the intended

parents may be foreigners, Indians, or Non-Resident Indians (NRIs). Childless couples in India are

increasingly turning to surrogacy as a common and acceptable option; the majority of these

commissioning parents are from the upper classes of society and are able to afford the high

expense of surrogacy.

 

SURROGACY AGREEMENT

There are 2 agreements under the surrogacy agreement. They are:

1. Surrogacy Parenting Agreement

2. Surrogacy Arrangement Agreement

 

SURROGACY PARENTING AGREEMENT

An agreement between an individual (the intentional parent) and a woman (the surrogate mother)

stating that the surrogate mother will (1) bear a child for the intentional parent and (2) give up all

rights to her child. This type of agreement usually involves an infertile couple and a woman who

donates her uterus to carry an embryo throughout pregnancy. The surrogate mother's spouse must

also agree to the conditions of the surrogacy agreement if she is married. Typically, the agreement

states that the woman will give up any parental rights she may have once the kid is born to the

couple.

 

SURROGACY ARRANGEMENT AGREEMENT

The intended parents and the hospital/agency enter into a Surrogacy Arrangement Agreement

outlining the terms and conditions that govern how the parties will behave throughout the surrogacy

program. This agreement will include information about the cost structure, procedure dates,

payment methods, medical tests to be performed, embryo implantation dates, and other medical

procedures. It will also provide the intended parents with unrestricted support up until the point atwhich the agreement is signed. Additionally, the intended parents are guaranteed to get those

services in accordance with the Surrogacy Arrangement Agreement, and this agreement is

enforceable.

 

INDIAN LEGISLATURE

Numerous bills on surrogacy have been presented time and again before the

houses of the parliament they are ,

1. Assisted reproductive technology (regulation)Bill 2008

2. The Surrogacy (Regulation ) Bill 2019

3. Assisted Reproductive Technology (Regulation ) Bill 2020

4. Surrogacy (Regulation ) Act 2021 and the Assistive Reproduction Technology (Regulation ) Act

,2021

5. Assisted Reproductive Technology (Regulation ) Act 2021

6. Surrogacy (Regulation ) Act 2021

 

INTERNATIONAL LEGAL POSITIONS OF SURROGACY

Many different perspectives exist on the subject of "surrogate birth" in different nations. Only a few

countries recognize it, and there is also a lack of consistency in the laws these countries follow

regarding the surrogate birth phenomena, making it a somewhat unstable area of the law.Although

not unheard of in the past, the practice of surrogate motherhood gained international recognition in

the mid-1970s as a result of a decline in the number of adoptable children and the growing

specialization of human embryology techniques, which rendered such methods a feasible substitute

for drawn-out and unpredictable adoption procedures or childlessness. Many concerns have been

brought up by surrogate motherhood, including the payment for services (which, when pushed too

far, may amount to treating children like commodities) and the rights of all parties involved in case

something goes wrong with the process.

 

UNITED STATES OF AMERICA

The majority of US jurisdictions had no particular laws pertaining to surrogacy as of March 1990.

In the 1980s, the Baby M case brought surrogate motherhood to the attention of the general

public.35 State legislatures all around the country were prompted to enact legislation pertaining to

surrogate motherhood by the Baby M ruling. The U.S. Congress appeared prepared to leave the

surrogacy debate to the states and the courts for the time being, as attempts to develop national law

regarding the practice had failed. On May 14, 1987, Ohio Democrat Tom Luken introduced one of

the most significant federal measures in the House. It would have been illegal to plan, carry out, or

negotiate a surrogacy on a “commercial basis,” or “under circumstances in which a person who

makes, engages in, or brokers the surrogacy arrangement receives or expects to receive, directly or

indirectly, any payment for the conduct. Additionally, the law would have made it illegal to

advertise surrogacy. It was quite similar to the Surrogacy Arrangements Act, 1985 in the United

Kingdom, with the exception that go-betweens and commissioning parents and surrogates were

subject to criminal penalties. It also closed a problematic loophole in British law by outlawing

privately funded arrangements. The Luken bill was not passed out of subcommittee in the 1987

session. In 1989, a measure with the same language was presented. Henry Hyde (R. –Ill.) and

Barbara Boxer (D.–Calif.) had introduced a second significant bill. The measure levied criminal 

penalties up to five years in prison and a $50,000 fine on surrogacy brokers; however, neither the

surrogate nor the contracting couple are subject to any penalties.

The Commission on Uniform Laws created a stir when it amended the Uniform Parentage Act to

authorise gestational agreements as valid contracts. According to the prefatory note to the Uniform

Act, the commissioners determined that such Since agreements had grown widespread in the 1990s,

the legislation served only as a framework to give them legal protection. Several organizations,

nevertheless, have contested the existence of these clauses. Four other states' legislatures were

debating adopting the new Uniform Act as of 2013, with Texas and Washington being the only

states to do so. Similar to New York, a few other states forbid surrogacy agreements, refuse to

uphold them, or do both. Several states, including Arizona, the District of Columbia, Indiana,

Michigan, and Nebraska, forbid surrogacy contracts and/or do not enforce them.

 

UNITED KINGDOM

All Commonwealth nations have always followed the laws of England and Privy Council rulings as

a reference. This gives us a bird's eye view of the new medico-legal landscape in the United

Kingdom. The Human Fertilization and Embryology Act, 1990's provisions are combined with the

Surrogacy Arrangements Act of 1985 to create a practical framework that permits the execution of

such arrangements. The potential financial benefit for a surrogate is one area of special concern.

The Surrogacy Arrangements Act of 1985 criminalizes the arrangement of commercial surrogacy

and imposes fines and/or a maximum three-month jail sentence for violators. Additionally, it forbids

commercial surrogacy's advertising and other related practices.

The legislation and case law of the United Kingdom are somewhat complex. In conclusion, British

law does not prohibit surrogacy, not even in cases when payment is involved. However, it renders

all surrogacy agreements void in cases where the birth mother objects. Nonetheless, it seems that

the argument in Great Britain is not about overriding the birth mother's objection to surrogacy, but

rather about allowing the plans to proceed even in cases where everyone agrees. A surrogate mother

was able to reject the agreement in an early British case because it was against public policy.

The Surrogacy Arrangements Act of 1985 has faced criticism due to its lack of clarity regarding the

legal standing of surrogacy agreements. The Act governs surrogate agreements "whether or not they

are lawful, and whether or not they are enforceable," according to Section 1(9). The Surrogacy

Arrangements Act was designed to be a stopgap solution. Since then, more legislative ideas have

been made, but Parliament has not reacted. The exception, however, is the Family Law Reform Act

of 1987, which has a significant impact on surrogacy. It accomplishes this by passing laws that

define the parent of the kid in a way that hinders but does not completely eliminate surrogacy.

 

SOUTH AFRICA

The South African Children's Act of 2005 allowed the "commissioning parents" and the "surrogate"

to have their surrogacy agreement approved by the High Court prior to conception (the act went

fully into effect in 2010). This helps avoid doubt by granting the commissioning parents recognition

as legal parents from the beginning of the procedure. However, if the surrogate mother is the child's

genetic mother, she has 60 days after the kid is born to change her mind. The law allows gay

couples and single people to become commissioning parents. Nonetheless, agreements must be

charitable rather than commercial, no unvalidated agreements will be enforced, and the law only

protects those who are South African citizens. If a single commissioning is made The

commissioning parent needs to share genetics with the child. In the event that there are two, theymust be genetically related to the child, unless infertility or sex (as in the case of a same-sex

relationship) make it physically impossible. The parent or parents who are commissioning parents

must be incapable of giving birth to a kid on their own. The surrogate mother needs to have given

birth to at least one live child and experienced at least one pregnancy and successful delivery. The

surrogate mother may end the pregnancy at any time, but she must notify and contact the

commissioning parents first. If the termination is being made for a non-medical cause, she might

also be required to return any reimbursements she got for medical expenses.

 

OTHER COUNTRIES

The law in Iceland opposes surrogacy. The husband of the surrogate mother is the child's father in

accordance with Icelandic law. While commercial surrogacy is prohibited in Belgium, altruistic

surrogacy is permitted. The Quebec Civil Code makes all surrogacy agreements unenforceable in

Quebec, regardless of whether they are charitable or commercial.

In Hong Kong, the Human Reproductive Technology Ordinance 2000 prohibits commercial

surrogacy. The legislation states that no one, whether inside or outside of Hong Kong, may arrange

for a commercial surrogacy, pay a surrogate, or allow a surrogate to receive money. This also

applies to the supply of gametes. Typically, only the intended parents' gametes are suitable for

usage. Serbian and Pakistani surrogacy is prohibited in Hungary

 

New Laws in India Regulate Assisted Reproduction and Surrogacy

Two new laws governing surrogacy and assisted reproduction in India went into force in

January, the result of years of lobbying by the Center for Reproductive Rights and its

supporters. The Assisted Reproductive Technology Act ("ART Act") and the Surrogacy Act

contain numerous clauses that list a complete set of rights protecting children born through

assisted reproduction technology (ART) and create conditions for legal surrogacy and ART.

The Center and its partners offered many recommendations, which were incorporated into

the laws that were passed in 2021. However, activists have pointed out serious gaps in the

legislation that need for additional advocacy and policy changes.

“After decades of attempts at legally regulating surrogacy and assisted reproductive

technology, we now have two laws that govern and set standards for surrogacy and ART.

While some provisions are clear improvements, there are concerns that both laws are not

framed within a rights-based-model and restrict access for many,” said Brototi Dutta,

Advocacy Adviser for Asia at the Center for Reproductive Rights.

Commercial surrogacy is prohibited by the Surrogacy Act and is only permitted in

situations of great charity. This clause has the effect of prohibiting surrogates from getting

paid anything for their services other than health and insurance benefits. In addition, the

Surrogacy Act specifies requirements for both intended parents and surrogates, the

conditions under which surrogacy is permitted, and a set of rules to regulate surrogacy

facilities.

 

CONCLUSION

 

The Assisted Reproductive Technology Act establishes rules for gamete donation,

including requirements for donors, and conditions for providing ART services. These

regulations apply to assisted reproduction clinics and banks and include a national or

International register to monitor their operations. It also includes surrogacy, gamete

donation, and in-vitro fertilization in its definition of assisted reproductive technology. The

Act also lists the rights of children born by assisted reproductive technology (ART), such as

inheritance rights recognition and protection from desertion.