Reproduction in human beings has been referred to as the natural biological process a female goes through mainly for the evolution of her family. However, in recent times, there has been a vast revolution in human reproduction. In earlier and prehistoric times, the issue of infertility was only able to be solved by the process of adoption. However, in the present contemporary period, the issue of infertility is not considered a barrier for couples with respect to conceiving. With the various technological advancements in recent years, there has been a notifying development of assisted reproductive technologies such as In-vitro Fertilisation, Cryopreservation, egg and sperm donation, artificial insemination, and surrogacy.
These revolutions in the medical regime of reproduction have changed the manner of conception as well as the likelihood of success without any necessity of heterosexual copulation. On the contrary, the processes of Artificial insemination and In-vitro fertilization are costlier and are only possible with the selling of sperm and eggs. The couples abstain from adopting such methods as they are costly and risk-effective. So among all these methods, surrogacy has been considered the most coherent procedure for overcoming biological and social infertility.
However, on the one hand, if the technologies have provided success then at the same time these evolutions in reproduction have also been cajoled with a plethora of vexing and controversial issues because the advancements in technology by their very nature have challenged the conventional notions. One such issue that has gained a spectrum of focus is that of cross-border surrogacy, which is rapidly growing in the medical industry. The cross border surrogacy has seen a remarkable increase but at the same time has also posed challenges to the medical industry such as those of cross-border surrogacy arrangements, determination of legal parentage, the enforceability of cross-border contracts, conflicts with the custody of the child and the additional compliance with the laws and regulations both in the domestic and international spheres.
Understanding Cross-Border Surrogacy
The word ‘surrogate’ has been derived from the Latin word ‘subrogare’ which can be interpreted as the appointment for acting in place of or in simpler words ‘substitute’. Surrogacy has been referred to as the biological process of reproduction in which the woman referred to as the mother has intercourse or medical treatment in order to attain pregnancy for the other woman, who is not fertile. It can also been referred to as ‘third-party reproduction’. Surrogacy has been referred to as an effective method for assisting the procreation of humans in cases where couples are unable to reproduce or abstain from reproducing.
Surrogacy is adopted when there is a failure for conceiving a child through any of the processes of assisted reproductive technologies. Generally, the arrangement for surrogacy has been defined as the process in which the women carry the child for another woman with the intention of handling the child to the commissioning parents. Surrogacy, when practiced within the international or cross-border peripherals is referred to as cross-border surrogacy. In general terms, it can be defined as a form of surrogacy in which the woman carries the child for another woman in lieu of monetary benefits with the intention of handing over the child immediately after his birth. There are precisely two forms of surrogacy namely Traditional surrogacy and Gestational surrogacy.
Evolution of Cross-Border Surrogacy
The origin of surrogacy can be traced back to the mythological period. It was in the 18th century that the legal regulations were prepared named as Babylonian Legal code of Hammurabi for the purpose of allowing surrogacy. With respect to India, there are various mythological examples; one such can be cited is that of the wife of Dhritarashtra and the mother of Duryodhan named Gandhari.
However, surrogacy was actually introduced in 1899 by the American Indians, wherein the husband whose wife was infertile was given permission for being the father of a child with another woman. Since then, there have been great evolutions in the regime of surrogacy. It was in 1978 when the first child was born through the process of surrogacy in the United Kingdom, and subsequently, with respect to India, the child was born through the process of surrogacy in Gujarat.
With these advancements and developments in technology, surrogacy was not only limited to domestic peripherals but also has become an immensely popular procedure for spawning children for infertile couples across the globe. Cross-border surrogacy is surrogacy where infertile couples from affluent countries hire the wombs of poor women for surrogacy. Cross-border surrogacy has become a viable option for trade by developed countries and has led to a flourishing business in the recent years of the 21st century.
Factors affecting Cross Border Surrogacy
With the increasing demand for surrogacy, there has also been the coherent involvement of various conflicting perspectives with respect to the various interests in society. With the advancements in technology, people have started adopting various reproductive technologies and surrogacy, which has simultaneously lured people across borders. Because of the inadequate and proper legal laws and regulations in the countries, people have started traveling to other countries to avail themselves the services related to fertility such as surrogacy. However on the contrary there are certain factors that have affected cross-border surrogacy. Some of the factors can be cited below:
- There are different legal norms, legal and regulations governing the countries with respect to surrogacy. Henceforth, the couples are crisscrossing borders for the purpose of availing these methods related to surrogacy.
- The most common factor is that cost-effectiveness. Infertile couples from developed countries hire women to carry and give birth to their children from developing countries or poor countries with a sustainable amount of money.
- Social and religious beliefs act as a barrier to cross-border surrogacy as the people are of the perspective that modern technologies are conflicting with the natural processes of birth.
Social Issues involved in Cross-Border Surrogacy
The acceptance of surrogacy in the global arena has led to various social issues therewith. On the one hand, it acts as a boon for people suffering from infertility, and on the other hand, it leads to the degradation of human life with dignity by the commodification of the reproductivity of women and treating children as a commodity. There are various social and psychological issues that are coherently attached to surrogacy like the beliefs of the society such as motherhood, parenthood, and the legitimacy of the child.
The practice of surrogacy creates and questions the various fundamentals of society such as the interpretation of the definition of motherhood, the status of a family, the relationship between a mother and a child, and most specifically the status of a woman. The most generic problem which arises from this aspect is that of surrogacy arrangements. The surrogacy arrangements commercialize reproduction which is considered the most natural aspect of life, and at the same time, it identifies the child as a commodity. Society is of the perspective that such practice exploits and commodifies the surrogate women in cases where there is a vast economic status. Secondly, the contracts created for the purpose of surrogacy are considered ethically immoral.
Legal Issues involved in Cross-Border Surrogacy
Since the evolution of surrogacy, it has been a controversial area of discussion all around the world as it has involved various issues related to morality, legality, and ethics. The adoption of the mechanism of surrogacy and other artificial services for fertilization has become a growing trend among couples suffering from the issue of infertility. The agreements for Cross-border surrogacy form a part of a rapidly growing medical tourism industry, but there have been no legal rules that would govern the factors involving cross-border surrogacy. Thus, with respect to the legality of surrogacy, there are various factors that get involved, wherein it is legally accepted in one country but not in the other, and during such major conflicts, the mother and the child are the ones who are the most affected. Some of the issues which are to be addressed under surrogacy are:
- Perplexed Motherhood: With the advancement of technology in the medical sphere, questions pertaining to the motherhood of a child have arisen. As per the agreement of surrogacy, there is a mention of three important entities namely intending mother, the biological mother, and the genetic mother. Therefore the question which arises is with respect to the legal custodian of the child among the three. This legal complexity has been addressed in the case of Jaycee B. v Superior Court, in which the infertile couple was not able to conceive even after adopting the process of IVF, and further arranged an anonymous donor for the sperms and the eggs, following which the child was born out of gestational period. It was after one month, that the intended parents of the child got divorced, and the father did not want to provide appropriate maintenance for the child. The wife of the child claimed motherhood of the child and maintenance from his husband. The court pronounced that the commissioning couple would be given legal custody of the child.
- The second case was that of Baby Manji Yamada v Union of India, wherein the child named Manji was born out of surrogacy, in which the surrogate mother was from India and the commissioning couple was from Japan. The issues arose when the parties denied the legal custodian of the child, thereby creating havoc in the Indian judiciary. The case was filed before the Rajasthan High court by a non-governmental organization named ‘Satya’ for the welfare of the child, and the questions were related to commercial surrogacy and the legal custody of the child. The case was addressed before the Supreme Court in which the court held that the child must be protected under the Children’s Right Act, 2005, and the child was granted custody to his grandmother. After such legal issues on motherhood, there are various factors that are to be considered namely with respect to the Intent-based theory, Genetic contribution theory, preference of a gestational mother theory, and most important the best interests of the child.
- Violation of legal and Human Rights: With there is rise in cases of surrogacy and cross-border surrogacy, there is a dire need for the protection of the rights of mothers and children from the legal complications arising out of such arrangements. As there are no proper and appropriate laws and regulations governing it, there are various questions that arise with respect to motherhood and children. There are cases where the surrogate mother gets exploited at the cross border for the sake of money, and there are various rights such as the right of parentage, nationality, and citizenship with respect to children. Henceforth there is a dire need for appropriate laws and regulations at national and international borders with a primary intent of safeguarding the surrogate mothers and children from being exploited
Legal Issues pertaining to Surrogate
The adoption of surrogacy affects the surrogate mother as a whole, resulting in various issues related to legality, socially and psychologically. The issues are:
- Surrogacy Agreements: Surrogacy agreements can pose a risk to the health of the woman, thereby violating her legal and human right to life. The surrogate woman has to go through the artificial process of impregnation, wherein her body is induced with various drugs in high doses, which can result in various side effects.
- The exploitation of surrogates: The economic disparity is another factor that results in women adopting surrogacy. The fluctuations in the economic market between developed and developing countries result in price competition in the international market. The developed countries exploit women from developing countries, wherein the women suffer from social and economic conditions and comply with giving birth to children at low prices.
Recommendations for safeguarding Surrogate
- Infertile couples can adopt the mechanism of adoption, which would restrict the legal issues and complexities involved. Subsequently, there are also laws and regulations governing the same.
- There is a dire need for the introduction of national and international laws and other artificial arrangements of surrogacy.
- There must be an adoption of a uniform method for payment for the surrogate mothers which would restrict exploitation.
- The contracts and agreements must be made in accordance with proper laws and regulations so as to avoid any kind of legal complexity.
- The nation-states must take proper steps so as to protect the surrogates from any kind of monetary, social, and psychological exploitation.
Conclusion
Thus, it can be stated that h and appropriate legal frameworks that would guide the practice.