Surrogacy in Nepal: A law in the making
Advocate: Lakshmiprasad Adhikari & Babita Gurung
Does our constitution accept to addressing the issue of surrogacy? If it accepts, what are the criteriafor the formation of surrogacy rules and rights? To whom, how many times and to what extentcan the rights of surrogacy be practiced?It is yet to be decided. How will it be judged on the ethical grounds? I am interested in sharing my views on how the parents can be benefited if they want to be a genetic mother and father and how the infertile parents can have the hope to bear child using the advancement of the technology.
The concept of Surrogacy is not much familiar in our country. There is no legal provision made yet regarding this issue. What are the advantages and disadvantages of surrogacy in terms of moral values, in economy and psychology? What law can be made,and the rights be givento intended parents and the babies of surrogacy? Howcan the law control the implementation of surrogacy with the change of time and the thoughts in people? I with my co-author would like focuson the significance of ‘need of law’ for the surrogacy in Nepal. In the making of constitution how the issues can be raised and had anybody ever tried to withdraw the attention on this issue?This is our concern.
Surrogate mother is a rarely heard to be in practice in Nepal. And, so far there isn’t any legal provision made for surrogate mother or surrogacy, this idea is not much prevalent among the Nepalese mass. The questions that lie here are as follows. Do the Nepalese people know what is to be a surrogate mother? How can the agreements be made? Do they know that a mother or father without a baby can also have the privilege through surrogacy? And, what do people think about having a surrogate mother or playing a role of surrogate mother?What changes will it bring in the economy of Nepal? How can the commercial surrogacy be introduced and controlled with the other issues in the constitution of Nepal? To talk of our neighboring country, surrogacy in India continues to be a very sensitive topic. The laws meant to regulate surrogacy are still in nascent stages, as they are stuck at various legislative levels. The only guidelines currently related to this field are those of the Medical Association.
The Roman Catholic Church is one of the religious institutions that oppose surrogacy. It is against all forms of surrogacy, even altruistic surrogacy, which does not involve the payment of a fee to the surrogate. It holds that surrogacy violates the sanctity of marriage and the spiritual connection between mother, father, and child. It finds commercial surrogacy to be especially offensive. Commercial surrogacy turns the miracle of human birth into a financial transaction, the church maintains, reducing the child and the woman bearing it to objects of negotiation and purchase. It turns women into reproductive machines and exploiters of children. The church argues that surrogacy also leads to a confused parent-child relationship that ultimately damages the institution of the family.
There are references in Indian mythology to surrogacy, most notably in the legend surrounding Lord Krishna. But it is not commercial surrogacy. Today, the small town of Gujarat, Anand, well known for its milk products, has rapidly put itself on the global map as the most fertile ground for ‘surrogacy tourism’. All evidence suggests that the phenomenon has now spread from cities to smaller towns in India, with many of the centers calling themselves in vitro fertilization(IVF) clinics to avoid public scrutiny.Let’s have some concern on the issue step by step.
What’s a surrogacy?
Surrogate motherhood is one of many currently available forms of Assisted Reproductive Technologies (ARTs) that have developed in response to the increasing number of individuals or couples who find themselves unable to conceive a child on their own. Surrogate motherhood involves the services of a woman who agrees to carry or gestate a child for the express purpose of surrendering that child to the intending or commissioning couple upon the birth of the child. The demand for surrogate motherhood is created by a diagnosis of female infertility, although a woman needs not be infertile in order to employ the services of a surrogate. Biological mother or genetic mother is a woman who contributes her egg in order to produce the resulting child. Biological father or genetic father is a man who contributes his sperm in order to produce the resulting child. Intended Parents or Individuals who intend to become legal parents of the child produced as a result of a surrogacy agreement. Gestational Mother is a woman who carries a developing fetus in her uterus until it is born.
Traditional Surrogacy and Gestational surrogacy
Traditional Surrogacy refers to a contractual situation whereby a woman agrees to become impregnated, typically by artificial insemination (AI), using her own egg and the sperm of another man, usually the intended father of the baby. She agrees to carry the child to term and thereafter relinquish her parental rights to the child. Because the surrogate uses her own egg, she is considered the biological, genetic and gestational mother of the resulting child. Although usually impregnated through AI, it is possible that the surrogate is impregnated using IVF. There is no data on how many women serve as traditional surrogate, AI is far less expensive than IVF, which is required for gestational surrogacy. While these ratios have not been documented, the lower cost suggests that many intended parents may choose traditional over gestational surrogacy. Gestational surrogacy refers to a contractual situation whereby a woman agrees to have an in vitro fertilized embryo implanted into her uterus, and then agrees to carry the resulting child to term. She further agrees to relinquish her parental rights upon birth of the child. To produce the implanted embryo, either the gametes (egg and sperm) of the intended parents or donor gametes may be used.
Laws that prohibit surrogacy agreements, such as New York’s, are implemented due in part to concerns that the intended parents are forcing the surrogate to give up her parental rights to the child. In the case of traditional surrogacy, it’s clear that the surrogate is the biological mother of the child and so she does have parental rights to the child. There is a risk in traditional surrogacy of the surrogate being forced to give up a child she wants to keep. However, this article addresses how surrogacy should be addressed in the constitution of Nepal.
Traditional surrogacy is commonly used when the intended mother is infertile, gestational surrogacy is used in different situations. Gestational surrogacy is used where the intended father is infertile or single, or where the intended mother has absent or blocked fallopian tubes, endometriosis, an absent or nonfunctioning uterus or medical conditions associated with pregnancy-related mortality or morbidity. In addition to different reasons for using gestational surrogacy versus traditional surrogacy, a very different process occurs in pregnancies resulting from gestational surrogacy.
Gestational surrogacy involves in vitro fertilization (hereinafter “IVF”) “in vitro fertilization” in Latin translated to fertilization in glass. The sperm and egg from the intended parents (rarely donor eggs and sperm are used) are joined outside of the carrier’s body to create an embryo. Once an embryo exists, it can either be cryogenically preserved (frozen) or transferred to the uterine cavity of the surrogate carrier. If the initial embryo transfer does not result in pregnancy, preserved embryos that survive the thawing process can be transferred to the uterus of the carrier each ovulation period until pregnancy is achieved.Here, the surrogate carrier does not donate the egg. As such, she has no genetic connection to the baby. Because the surrogate carrier has no biological connection to the child, she therefore has no parental rights to said child. Laws that have a blanket prohibition on surrogacy agreements ignore this critical fact. Because the two forms of surrogacy are so different and raise different concerns, they should be distinguished legally.
What’s/ who’s surrogate mother?
Surrogate mother is a person or an animal which takes on all or part of the role of mother to another person or animal. Inthe other words,a woman who bears a child on behalf of another woman, either from her own egg fertilized by the other woman’s partner or from the implantation in her womb of a fertilized egg from the other woman.
Some feminists oppose surrogacy because of its political and economic context. They disagree with the notion that women freely choose to become surrogates. They argue that coercion at the societal level, rather than the personal level, causes poor women to become surrogate mothers for rich women. If surrogacy contracts are legalized, they maintain, the reproductive abilities of a whole class of women will be turned into a brokered commodity. Some feminists have gone so far as to call surrogacy a reproductive prostitution. Some critics join with Catholics and feminists to decry surrogacy as baby selling and a vehicle for the exploitation of poor women.
There is an instance of an Australian couple, who had biological twins from an Indian surrogate mother two years ago, abandoned one of the children and returned home with the other. The case came to light when Australian family court chief Justice Diana Bryant announced that she was informed by an Australian High Commission official in New Delhi that the couple had left one child behind. What must be the legal provision for this kind of issue which emerges in certain non addressed or unexpected situation?Justice Bryant has reported that the High Commission in New Delhi had delayed giving the parents a visa and tried to convince them to take both children home, but the parents did not accept. The couple’s decision to leave the child behind was based on their preference for a specific gender.A spokesperson for the Department of Foreign Affairs and Trade on behalf of Australian government admitted that the couple had left the baby behind and since this case; the Indian government has tightened controls on commercial surrogacy arrangements in India. When asked whether the High Commission could have prevented the parents from leaving the child behind, the spokesperson told The Hindu“The parents in this case decided to apply for citizenship for only one of the twins. The involvement of the Australian High Commission in New Delhi was restricted to assessing the application by the Australian couple for citizenship, and subsequently a passport, for the one child. The High Commission had no grounds to refuse the citizenship application and a passport for the one twin for whom application was made — the child met the criteria for citizenship and an Australian passport”. This leading example of our neighbor country gives the guidelines or awareness in terms of making the rules for surrogacy. It was pointed out that India became responsible for the welfare of the other child and adoption arrangements became a matter for its legal system. “The Australian government does not regulate overseas surrogacy arrangements; this is a matter for the countries in which these arrangements are made. Within Australia, the regulation of surrogacy is a matter for states and territories,” The incident has given the ongoing campaign for stringent surrogacy legislation in India a shot in the arm.
What are legal rights for the surrogate mother or baby?
Common people need a law and a forum or a court where such cases can be dealt with. It is very bothersome that a child was left behind in the case of Australian couple as they focused for only baby. Nobody knows the position of the left child. “We don’t even know if the child has been sold off or adopted,” said Anil Malhotra, senior advocate who challenged the single parent restrictions on surrogacy.Law making must be visualizedthrough several dimensions like: what’s the mistake of Australian couple who adopted only one child, and what’s the mistake of the surrogate mother who had given birth a twins? It was quite a biological phenomenon but the issues are: what after the twins was born, what after the couple had not accepted the twins? What laws could be made? What could the court do if the baby was left no one knows about it? If the same thing happens in Nepal then what would the provision be in our constitution? Are we focusing on this issue while the making of a constitution kicks off?
It was heard in the news; may be a year ago, a few Nepalese girls are taken to Israel for the purpose of surrogacy. They are paid well and sent back to Nepal after the completion of the task. They are given visa as a care taker but they play the role of surrogate mother in Israel. Is there any check and balance regarding this issue in our Nepalese Law System? Apart from that,it is heard that some women from our neighboring country are brought to play the role of surrogate mother in Nepal. So what must be the provision for that?Making a case for the protection of the rights of both the surrogate mother as well as the newborn, Shamina Shafiq of the National Commission for Women said: “We have to worry about the rights of the surrogate mother, who was left with the child, but we equally need to worry about the rights of that child, who was left behind. If the commissioning parents abandon the child, there has to be law to deal with that situation.”
The Law Commission of India has brought out a report on surrogacy and the urgent need for regulation entitled, ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy’. The methods of payment to the surrogate and the other arrangements it lays down seem to suggest that the surrogate figures low in the list of priorities in terms of care and protection. This is disturbing considering that surrogacy raises several ethical considerations including the fact that it leaves poor women at the mercy of a capricious system. These women often have no other recourse other than commercial surrogacy arrangements to buy themselves and their families out of debilitating circumstances. SAMA, a resource group working in the area of women and health, has raised concerns regarding the current situation as well as serious problems with the Bill. The number of pregnancies, the types of procedures and the care of the surrogate are all matters that have been inadequately addressed, both by the medical system as it exists today and the Bill.
There is also the issue of race and ethics to be considered. In addition, it is pertinent to note that there is hardly the required encouragement to look at adoption as a viable alternative to surrogacy to parents willing to consider this as an option to add to their family. The Supreme Court, in the 2008 case of Baby Manji Yamada v/s Union of India discussed surrogacy and noted that commercial surrogacy is reaching industrial proportions because of the ready availability of poor surrogates. It mentioned the Commissions for Protection of Child Rights Act, 2005 but stopped short of demanding that the government take immediate action to regulate the whole surrogacy industry, and not just address the issue of the rights of the child once it is born.
Overview of current surrogacy laws
Primarily, New York did not prohibit surrogacy contracts. Prior to the enactment of the current surrogacy laws in New York, the Nassau County Surrogate’s Court in 1986 decided in Matter of Adoption of Baby Girl L.J. that a surrogacy contract was not prohibited by then existing law. In that case, the surrogate mother agreed to be inseminated with the father’s sperm, relinquish her rights to the child to the father and his spouse when the child was born, all in exchange for a fee of $10,000. The court in that case decided it was “for the legislature to determine if such payments should be disallowed so as to prevent such practices in the future,” and upheld the contract.
In 1988, the New Jersey Supreme Court ruled commercial surrogacy contracts were unenforceable as against public policy. In the another issue of Baby M., a married woman was the surrogate mother and agreed to be inseminated with the father’s sperm, relinquish her rights to the child to the father, and accept a fee of $10,000.After the child was born, the woman refused to give the child to the father.
The New Jersey Supreme Court ruled that the contract was unenforceable as against public policy, because it was degrading to women and surrogacy contracts guarantee permanent separation of the child from one of its natural parents. Two years later, a New York court followed suit with New Jersey’s decision.
The court looked to the current adoption laws in New York because there was no law applicable to surrogacy agreements. The court determined that the fee to be paid for the “adoption” of the child was illegal, stating that “such remuneration to a mother, in exchange for her surrender of the child for adoption, violates New York’s well-established policy against trafficking in children.”The court in this case also found the rationale of the New Jersey Supreme Court in Matter of Baby M. to be “compelling,” and further cited similarities between New Jersey’s adoption laws and their own, in coming to their decision.
New York state courts were divided on the issue of surrogacy contracts, as seen in the disparity between the previously discussed New York cases, then-governor Mario Cuomo called upon the Task Force on Life and the Law (hereinafter “Task Force”) to make a recommendation for legislation on the surrogacy contract issue. The Task Force made the recommendation that all surrogacy contracts should be void and unenforceable, including gestational surrogacy contracts. The Task Force unanimously concluded that:
The practice could not be distinguished from the sale of children and that it placed children at significant risk of harm. They also agreed that surrogacy undermines the dignity of women, children, and human reproduction. The Task Force rejected the notion that rights as fundamental as the right of a parent to a relationship with his or her child should be bought and sold or waived irrevocably in advance of the child’s birth.
The legal situation in India is in sharp contrast to that existing in many other countries. In Germany and Canada, surrogacy is outlawed or prohibited; in the U.K., it is highly regulated and very expensive. In Germany, over the last three years, there have been two controversial cases. The first, in 2008, involved twins born to a surrogate mother; the second arose barely a year ago. In both cases, German authorities refused to automatically give passports to children born of surrogate procedures carried out in India. The main reason for the refusal of visas was because surrogacy is not allowed in Germany. This is a homogenous and consistent line of reasoning and is very much in contradiction to the state of affairs in India where at the moment this sector is almost completely unregulated.
The Prevalent Issues of Surrogate Parenting
We know , Surrogate parenting refers to an arrangement between a married couple who is unable to have a child because of the wife’s infertility and a fertile woman who agrees to conceive the husband’s child through artificial insemination, carry it to term, then surrender all parental rights in the child. Often, the surrogate mother receives compensation for her services. The final step in the process is typically the father’s acknowledgment of paternity and adoption, with his wife, of the child. Through surrogate motherhood, a couple desiring a child need not wait an indefinite number of years for an adoptable baby, as generally happens at the present time. The married couple obtains a child who is the husband’s biological offspring- a child for whose existence both husband and wife can feel responsible. Surrogate parenting is highly controversial by its very nature. Nevertheless, surrogate parenting is attracting wide spread attention as a viable alternative for infertile couples intent on having a child. Contract surrogacy is officially little more than ten years old, although surrogate mothering is a practice that has been known since biblical times. In 1986 alone 500 babies had been born to mothers who gave them up to sperm donor fathers for a fee, and the practice is growing rapidly. For this reason there are many questions and doubts that arise from this subject. Often there are many legal difficulties that come about with surrogate parenting. In some states the contracts that insure the infertile couple the baby of the surrogate mother mean nothing. This, in turn, can cause huge problems if the surrogate mother were to change her mind about giving up her child. Who has the rights to the child in this awful situation? Surrogate parenting is a wonderful alternative for infertile couples as long as all party’s involved are educated on the subject and are fully aware of the pros and cons of this risky business transaction. Unfortunately laws on surrogate parenting aren’t very helpful. Increasing numbers of surrogate custody cases are finding their way into the courtrooms. The most dramatic problem arises when the surrogate mother decides she wants to keep the baby.Whether she decides early or late in the pregnancy, at birth, or after the child is born, the ultimate issue is whether she or the infertile couple have parental rights. How is the law to respond to this kind of problem? Normally people would agree that a contract is a contract and therefore the infertile couple should be the ones to receive the baby. Unfortunately for some of us more sympathetic people this decision is not that simple. By changing her mind the surrogate mother is showing maternal feelings that are surely not reprehensible. Although she has promised to give up the baby her change of heart seems more understandable than dishonorable. After all how can a woman truly be expected to know how it will feel to give birth to a child and then have to give it up? These are very good questions that tend to leave one undecided as to which party’s demand is justifiable and should be upheld. Instead of deciding surrogacy issues on the basis of the law and policy of the states, judges could look for guidance from the U.S. Constitution. Constitutional arguments can be made on both sides of the classic surrogacy dispute involving the mother who changes her mind about giving up her child. Resolution of the constitutional issues will depend ultimately upon assessing and weighing the various factors at stake. Like decisions based on contract and criminal law, constitutional decisions will take account of the party’s interests, the child’s interests, society’s interests, and the effectiveness of legalization and regulation as opposed to prohibition. .
Cultural/Legal Implications in the other states
The United States is the world’s leader in availability of surrogacy arrangements. Britain, for example, implemented a ban against commercial surrogacy – in other words, any arrangement in which a surrogate receives payment for her services. On the other hand, Israel permits commercial surrogacy but the EmbryoCarrying Agreements Law (1996) advances the position that a “severe effort” be made to permit only unmarried women to serve as surrogates because it is reasoned that allowing married women to serve as surrogates would violate culturally prescribed definitions and norms about kinship, the status of the child that is born, and family (Kahn 2000). This position stands in contrast to U.S. arrangements in which established surrogate mother programs typically insist that their surrogates be either married or in a committed relationship. They also require surrogates to have children of their own in order to discourage them from wanting to keep the child. Programs reason that an unmarried woman who has never had children is much more likely to want to keep a child produced through surrogacy than a married woman with children of her own (see Ragoné 1994, 1996, 1998).
There are always positive and negative aspects of everything. The positive aspect of surrogacy is that parents who don’t have children can have the natural baby, they being genetic parents. And, the parents can afford a healthy child. The parents who serve a surrogacy can have some financial support from the intended parents, in this way both become helpful to each other. Surrogate parents are mostly capable financially, they afford the surrogacy and they find an option to quench their thirst to be a mother or father. And the tension which the woman or man had been facing in family because of the infertility or other reasons is just being solved and brings happiness in the family. Poverty will be eradicated to some extent in poor family and rich family becomes happy having the surrogate baby. So, it supports the saying “wealth brings health and happiness sometimes.”
In this post modern age,people are very busy in their profession, they give their precious times for the nation building, they are not able give their time for the family, and surrogacy can bring family happiness to them provided state must govern certain rules or system to control the negative aspect. If the state doesn’t keep any rules then the poor women will be exploitedand if these things are not legalized it will be prevalent illegally in various forms like reproductive prostitution and it supports the other form of human trafficking. The poor women are assumed as the means of production who deliver the product after nine months. These assumptions really degrade the status of women in the society. These issues must be raised in the process of drafting the constitution to control such things. Though surrogacy is not clearly prevalent in Nepal but it exists.
Civil society groups, the media, the courts and the Law Commission have periodically focused on the various negative aspects of the surrogacy industry, the apathy of the country’s own legislators makes one wonder what is required to spur them to address the serious ethical and moral dimensions of this unregulated enterprise.
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