Legal and ethical to-dos for several infertile couples during Surrogacy

The latest celebrity rumour is that superstar Shah Rukh Khan and wife Gauri are expected to welcome their third child via a surrogate last few months. This news once again focuses attention on India's $450 million reproductive industry, which has been attracting infertile Western couples due to relaxed legislation and low costs ($100,000 in the US compared to $25,000 in India — including clinic charges, travel and lodging, the surrogate's fee and lawyer's bills).

In recent years, the number of infertile couples or childless couples increases very rapidly. Today every one couple out of seven is infertile due to any of the infertility causes. Some people have myth that by giving time or relaxing infertility can be overcome, however the fact is that fertility issues are medical in nature and there are effective treatments available for these problems.

Surrogacy refers to an arrangement between a woman who agrees to carry and deliver another person or couple's baby for a fee after a previously created embryo has been transferred into her in a clinical set-up. The sperm and/or eggs can be the commissioning parents' or sourced from donors. For some couples battling infertility, this may be the only route to parenthood. Experts suggest you ask the right questions before making a choice.

The times when medical advances like IVF was not available, the only option in third party reproduction is traditional surrogacy where a woman (surrogate mother) is artificially inseminated with the sperm from the intended parent and the woman is a biological mother to the baby she is carrying. Through traditional surrogacy, there is a 50% genetic tie to that child and that is the reason why these days most of the intended couples prefer gestational surrogacy that allows intended parents to use their own genetic makeup (egg or sperm) and surrogate mother just assist them by renting her uterus for nine months or up to the delivery of the child.

Counselling will help you figure if your infertile status can be treated. Surrogacy is usually suggested if a uterine factor is involved, as in the case of genital tuberculosis or if the uterus is deformed because of multiple fibroids or in rare conditions when the uterus is congenitally absent. Women who suffer repeated miscarriages or have severe diabetes and hypertension can also resort to surrogacy.

Examine your financial stability, family support structure and relationship with your spouse. Understand the medical procedure and have realistic expectations. It is a myth that surrogacy always results in a baby. A successful surrogacy depends on the age of the biological mother, quality and quantity of her eggs, the husband's sperm parameters, and the nutrition and health status of the surrogate and the track record of the IVF centre. Since the surrogate is fertile, having had children of her own, it is adequate if two good quality embryos are inserted, if the genetic mother's age is less than 37. If older, consider placing up to three embryos. Transferring more has no advantage, and can jeopardize the chances of a healthy singleton pregnancy. All guidelines judiciously reduce the risk of caesareans and obstetric emergencies.

India does not have a legislation governing surrogacy; only guidelines. It's the surrogacy agreement that governs the contractual relation between the parties. Anticipated problems include the surrogate claiming the child as her own or enforcing parental visitation or custodial rights. Further, the surrogate's husband may claim the child under section 112 of the Evidence Act, which highlights the presumption of paternity, i.e. when a child is born during the continuation of a marriage, the husband of the woman giving birth is presumed to be father of the child. 

Intended Parents would have to advise for secure a well-drafted surrogacy agreement, get the surrogate and her husband counselled in their local language and make sure she understands her legal rights and liabilities. These will help you to ensure an iron-clad contract: name and details of parties; why does the party to the agreement propose surrogacy; details about the surrogate; the exact intention between the parties while entering the agreement; the type of surrogacy; proper compensation clause; relinquishment of rights by the surrogate mother; details with regard to the compensation in times of unexpected mis happenings to the surrogate; and clarity that the child's custody with the intended parents alone is legal custody.

The dialogue you have over regulations and rights should always involve the surrogate and egg donor. Consistency and transparency in contracts is a significant step towards ensuring fairness and granting the surrogate negotiating power with the agent. During process, we discovered that there tends to be a discrepancy in the amount the commissioning parents are asked to pay the surrogate, and the fee she finally receives. The contract they are made to sign lists a significantly lower amount. Your intervention can prevent this. Ask yourself if the installment plan for the surrogate is fair typically.

Popularity of Surrogacy

From last few years, surrogacy is gaining amazing popularity among infertile couples, especially for those who can't conceive children in the natural way or are unable to get pregnant through other assisted reproductive techniques. The very most common reason why people opt for a surrogate is when the woman has absence of uterus. Sometimes it can be absent since birth or may have been surgically removed. Also woman with multiple IVF failure for unexplained reasons and those who have suffered multiple miscarriages, gay couples and single men, generally opt this effective treatment option to enjoy parenthood.

Surrogate can be anyone including a sister, mother or close friend of a couple or also someone known or unknown to the couple, who is ready to her womb. Women who agree to become surrogates may do so for compassionate reasons.

Guidelines for Surrogacy technique

Certain guidelines have been laid down to try to minimize the misuse of the surrogacy arrangement. As per the Indian Surrogacy Law, a surrogate mother needs to sign a contract which should specify that the child will become the legitimate adopted child of the intended couples. Surrogacy technique has received quite a lot of bad history recently, especially when there is a dispute over the baby between the intended parents and the surrogate and that is the reason why many people are worried about the possibilities of the surrogacy being misused.

It's a fact that surrogacy is a hope for many childless couples, but here it is important to remember that this technique does offer one method of achieving parenthood to only those couples who could never have a baby by any other means of pregnancy. The path of surrogacy is a rocky one and also requires a lot much thought. Perhaps it is the most complex and difficult way to achieve parenthood, but still only option to a few couples, so they must be careful to choose a certified agency that will provide them with all information they require.