INTENDED PARENTS AND THE LEGAL CONCERNS IN SURROGACY PRACTICES

Aneesh V. Pillai

Introduction

Traditionally, the concept of a family is that of a mother, father and one or more children. The natural expectation of majority of people is that they would marry and establish a family of their own. The desire to raise genetically related children is one of the most fundamental instincts of men and women. However, this aspiration gets frustrated as a number of individuals suffer from infertility[i] and are unable to conceive their own offspring unaided. In modern times, the surrogacy practices are promoted as an alternate method of medical treatment for infertility[ii]. The recent developments in medical science and technology encourage the use of surrogacy for those who have fertility complications and for those who cannot conceive children of their own[iii]. In most of the surrogacy cases, it is seen that whenever a legal or medical issue arises, the major concern is focused on the surrogate mother and the child and the intended parents are not given much importance. However the intended parents are also equally important in a surrogacy arrangement and their rights and interests also need to be addressed. This paper discusses the various legal issues relating to intended parents.

Intended Parents: Meaning and Definition

Surrogacy is traditionally defined as the procedure whereby a couple contracts with a woman (known as the surrogate) to conceive a child for them, carry it to term, and then relinquish to the couple all her parental rights[iv]. It is a contractual deal between the surrogate woman and intended parents in which the surrogate woman agrees to get impregnated with the intention of carrying the child to full term and handing it over after birth to the intended parents[v]. Surrogacy is not so new as far as artificial reproductive technologies are concerned, and it is often noted that the practice dates back to Biblical times[vi]. For example, the Bible mentions two stories of surrogacy, i.e. Abraham and Sarah, who employed their maid Hagar as a surrogate and Jacob’s wife Rachel who asked Jacob to have a child with their maid Bilah[vii]. With the development of modern science and technology these ancient practices have been further modified and developed and established in the present century as assisted human reproductive technologies[viii].

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