Aneesh V. Pillai
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].
The intended parentsare the couples or in some cases, individuals who wish to beget a child with the help of the surrogate and bring up the child after his or her birth[ix]. The intended parents are also known as commissioning parents[x]. Intended parents are the infertile couples who intend to have a child through the process of surrogacy[xi]. They are the couples or individuals who enter into a surrogacy agreement with the surrogate mother with the intention to become legal parents or legal parent of the child born to the surrogate.
There are various situations due to which a couple or an individual may be forced to choose surrogacy for begetting a child and thus become an intended parent. They are as follows:
Infertility: Inability to conceive due to physical problems/diseases or infertility which is not amenable to treatment.
Medical Conditions: Physical problems that make it impossible for woman to carry a pregnancy to viability or pregnancy that is life threatening[xii].
Genetic Problems: Presence of genetic diseases with significant risk of genetic abnormalities. The only method of avoiding this risk would be surrogacy using a donor egg or sperm.
Lifestyle Factors:Female intending parents who are unwilling to undergo pregnancy because of career or any other reason. There are examples of many successful business women, actresses[xiii], athletes and models opting for surrogacy due to career pressure, or for avoiding the pain of childbirth and the prospect of stretch marks[xiv].
Single Parent or Homosexual Couples:Surrogacy can be a choice to beget a child for a single parent or a parent in case of a homosexual couples[xv].
Intended Parents and the Legal Issues:
In a surrogacy arrangement the intended parents may face various legal issues. For example, in certain cases, the question may arise whether the intended parents have the right to use the surrogacy practice for begetting a child. Secondly, as the intended parents are those who contemplate procreation through surrogacy, they may want to exercise control over the child’s characteristics and activities of surrogate mother during the pregnancy. The major significant issues relating to intended parents are as follows:
Right to be an Intended Parent
The supporters of surrogacy in the United States argue that “if the right to procreate through traditional, coital method is a protected right, then procreation through surrogacy or other medically available options should also be protected[xvi].” These proponents argue that the, liberty interests protected by the US Constitution do not change definition because of the presence or absence of reproductive technology. Moreover, they view surrogacy as a form of conception that is equally legitimate to the traditional form and hence protected under the US Constitution[xvii]. The Indian Constitution contains similar provisions as that of US Constitution concerning Equality Clause. The Indian Judiciary has also approved the various decisions given by the US courts with respect to the use of contraceptives and reproductive rights. Most importantly in Baby Manji Case[xviii] the Indian Supreme Court has approved surrogacy as an alternative means for human reproduction.
Moreover, in this expanding era of human rights jurisprudence, one can trace the foundation of right to use surrogacy and be a intended parent to the following human rights such as: Right to Personal liberty, Right to Procreation, Right to Found a Family and Decide on the Number and Spacing of Children, Right to Privacy and Right to enjoy benefits of Scientific and Technological Progress. A female’s right to be a intended parent can also be derived fromRight of a Woman to be Free from All Forms of Violence and Coercionthat affect a woman’s sexual or reproductive life.
Rights and Duties of Intended Parents
Surrogacy practices are generally based on an agreement between the surrogate and intended parents. For the successful completion of such a surrogacy agreement, both the parties involved in such an agreement have certain rights and duties.
i) Rights of Intended Parents
Different legislations enacted all over the world have not mentioned expressly the rights and duties of intended parents. An analysis of the provisions and various case laws reveals that the intended parents have the following rights and duties.
a) Right to Select a Surrogate Mother
The right of intended parents to select a surrogate mother can be justified on the grounds that the intended parents have right to procreate with the help of another, i.e. a surrogate. Hence, if there is a right of access to surrogacy, then the intended parents should also have the right to select the surrogate woman of their choice for fulfilling their right to procreate. However this right to select surrogate mother is not an absolute right and it can be restricted by the state on reasonable grounds of public interest. For example, the intended parents are not entitled to select a woman who is below 21 years and above 45 years of age, a prisoner woman, a woman who had already acted as a surrogate for 4 times, a woman relative who comes within the prohibited degrees of relationship and woman who is not physically or mentally fit for giving birth to a child, etc.
b) Right to Impose Restrictions upon Surrogate Mother
The purpose of availing the services of a surrogate mother is to beget a healthy child. For this reason the surrogate mother is bound to follow various duties during the initiation of surrogacy and the subsequent pregnancy, so that baby is born without any complications. Thus the intended parents have a right to impose restrictions upon the behavior and activities of surrogate mother during this period. It is to be noted that only such restrictions can be imposed which are not unreasonable and are necessary for the normal development of the foetus.
c) Right to Information and Visit Surrogate Mother during Pregnancy
The intended parents may be interested to know the status regarding development of the foetus and the health of the surrogate mother. Thus the concerned medical practitioner and the clinic are bound to provide necessary information to the intended parents. So also, they are to be given the right to visit the surrogate mother during the pregnancy.
d) Right to Custody and Parentage of Child
The fundamental objective of surrogacy is to fulfill the desire of intended parents to have a child and raise the child as their own. Therefore the intended parents have the right to custody and parentage of the child soon after it is born. In some cases it is seen that the surrogate may change her mind and refuse to hand over the child to the intended parents. Hence it is necessary to state clearly the right of intended parents to the custody and parentage of the surrogate child. In India the proposed ART Bill, 2010 states that a surrogate mother shall relinquish all parental rights over the child[xix]. It also states that, a child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through sexual intercourse[xx]. The ICMR Guidelines in India also provides that, a child born through ART shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both the spouses[xxi]. Thus it can be seen that in India intended parents have the right to custody and parentage of the surrogate child.
ii) Duties of Intended Parents
A duty is something that someone is expected or required to do or forbear from doing something for any number of reasons, including moral or legal obligations[xxii]. Usually in every legal system along with rights the individuals also have certain duties. These duties are essential for the protection of rights of other individuals as well as for the realization of the individuals own rights. Thus the intended parents who have entered into an agreement with surrogate mother for begetting a child also have certain duties which they are expected to do or forbear from doing for the successful completion of surrogacy. It is to be mentioned that, though the duties of intended parents are very important, they are not seen dealt adequately by the various legislations dealing with surrogacy all over the world. It is to be noted that the issue of duties of intended parents has been dealt in great detail by the proposed ART Bill, 2010 and ICMR Guidelines[xxiii] in India. Some of the important duties are as follows:
a) To Refrain from Sex Selection and Improvement of Non-Medical Characteristics
One of the major criticisms against surrogacy is that, it may be used to produce children of desired sex and with desired characteristics, i.e. surrogacy may be used for the creation of designer babies.Any use of surrogacy for the creation of a designer baby would give rise to serious ethical, social, moral, religious and legal issues and also come into conflict with the interests of surrogate child, surrogate mother as well as the society[xxiv]. The legislations of various countries have incorporated provisions which expressly prohibit, sex selection and improvement of non-medical characteristics while availing the benefit of surrogacy. For example, the BelgianLaw on Research on Embryos in Vitro, 2003 provides that it is forbidden to conduct treatment for eugenic purposes, i.e. directed at the selection or enhancement of non-pathological characteristics of the human species[xxv].
b) To Pay the Agreed Sum
The surrogacy agreement is an agreement between the intended parent or parents and a surrogate woman. The surrogate woman agrees to undergo the various medical procedures and carry the child in her womb for nine months and then hand over the child to the intended parent or parents. Thus the woman by agreeing to act as a surrogate is actually doing a great service to the intended parents. Therefore, it is the duty of the intended parents to pay all the necessary medical expenses required during the initiation of surrogacy procedure as well as during the pregnancy and childbirth.
c) To Accept the Child after Birth
One of the most important duties of the intended parents or parent is to accept the responsibility for the surrogate child after its birth in every circumstance. There are instances that the surrogate has given birth to triplets or quadruplets[xxvi]. Moreover, similar to a normal pregnancy, in surrogacy pregnancy also there are chances of defective birth and are in fact more due to the various medical procedures involved in it. In such circumstances, the intended parents cannot deny the responsibility to accept the children as they have initiated the surrogacy procedure. Therefore, the intended parents have the duty to accept the multiple babies born to the surrogate as well as to accept the surrogate child even if the child is defective.
d) To Maintain Surrogate Child as Natural Child
Every surrogate child is considered as a legitimate child of the intended parent/parents and therefore, has all the rights available to the children born through normal sexual intercourse. Thus it is the duty of intended parents to take care and maintain the surrogate child as their natural child and provide it with all the rights and privileges available to a natural born child. The ICMR Guidelines in India provides that, a child born through ART shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both the spouses. Therefore, the child shall have a legal right to parental support, inheritance, and all other privileges similar to a child born to couple through normal sexual intercourse[xxvii].
The right to be an intended parent stems from the inherent desire of an individual to beget and rear a biologically related child. The desire of an individual to beget a child is recognized by almost all legal systems as a fundamental basic human right and is enshrined as the right to procreation. Though the right to be an intended parent is not yet established as an independent human right, it is also a legally protected interest under various other human rights. Thus it can be said that every individual can claim a right to be an intended parent. But the exercise of the right to be an intended parent however gives rises to various legal issues and hence necessitates the interference of State in the exercise of this right. An effective interference by State is essential in India in the form of legislation in order to protect the interests of intended parents as well as other stakeholders in surrogacy practices.
[i] John Robertson, Children of Choice: Freedom and the New Reproductive Technologies, Princeton University Press, New Jersey, USA, (1994), pp. 97-100.
[ii] Adiva Sifris, “Dismantling Discriminatory Barriers: Access to Assisted Reproductive Services for Single Women and Lesbian Couples” 30 Monash University Law Review 2, 229, (2004), p.237.
[iii] John Robertson, Children of Choice: Freedom and the New Reproductive Technologies, Princeton University Press, New Jersey, USA, (1994), pp.97-100.
[iv] Christine L. Kerian, “Surrogacy: A Last Resort Alternative for Infertile Women or Commodification of Women’s Bodies and Children?” 12 Wisconsin Women’s Law Journal 113 (1997), p.115.
[v] Jami L. Zehr, “Using Gestational Surrogacy and Pre-Implantation Genetic Diagnosis: Are Intended Parents Now Manufacturing The Idyllic Infant?” Loyola Consumer Law Review, Vol. 20:3 (2006), p.294.
[vi] Usha Rengachary Smerdon, “Crossing Bodies, Crossing Borders: International Surrogacy Between the United
States and India”, 15 Cumberland Law Review, Vol. 39:1, (2008), p.17.
[vii] See, Genesis, 29:28-32, 30:1-8.
[viii] See, Aneesh V. Pillai, “Surrogacy and Gender Based Human Rights Concerns: A Dilemma for Legal System”, S. P. Law Review, Vol.1, (January – 2013), pp.30-35.
[ix] See Generally, Dr Rebecca Gibbs, “Surrogacy: Medical, Ethical and Legal Issues to be Considered”, North East Essex PCT, (January 2008), available at <https://www.northeastessex.nhs.uk/public_29_01_2008/surrogacy-policy.pdf > Visited on 10.3.2012.
[x] See John Dwight Ingram, “Surrogate Gestator: A New and Honorable Profession”, 76 Marq. L. Rev. 675 (1993), p.677.
[xi] See, “Successful Surrogacy and Indented Parenting” (web page), available at
<https://surrogacymumbai.wordpress.com> Visited on 10.3.2012.
[xii] See, Brinsden P.R., et al., “Treatment by In Vitro Fertilization with Surrogacy: Experience of one British Centre”, B.M.J., Vol. 320(2000), pp. 924-929.
[xiii] For example, Aussie actress Nicole Kidman and husband Keith Urban have announced that their new baby, Faith Margret Kidman Urban, was born to a surrogate mother on December 28, 2010 in Nashville, See <https://www.theaustralian.com.au/news/gallery-e6frg6n6-1225990282006?page=1> Visited on 10.3.2012.
[xiv] See, Tessa Mayes, “Career Women Rent Women to Beat Hassles of Pregnancy”, Available at <https://www.rense.com/general11/rental.html> Visited on 10.3.2012.
[xv] Editorial, “Surrogate Motherhood: The Uptrend Continues”, Ministry of Woman and Child Development, Government of India, Newsletter Sampark, Volume 4, Issue 4, (2008), p.4.
[xvi] See Eric A. Gordon, “The Aftermath of Johnson v. Calvert: Surrogacy Law Reflects a More Liberal View of Reproductive Technology”, 6 St. Thomas L. Rev. 191(1993) p.200.
[xvii] See for more, L. Gostin, “A Civil Liberties Analysis of Surrogacy Arrangements”, Law, Medicine & Health Care, 16 (1988) 7-17.
[xviii]See, Baby Manji Yamada v. Union of India, AIR 2009 SC 84; Jan Balaz v. Anand Municipality and Ors, AIR 2010 Guj 21.
[xix] See, The ART Bill, 2010, S.34 (4).
[xx] Id. S.35 (1).
[xxi]See, The ICMR Guidelines, R.3.12.1.
[xxii] Shewanda Pugh, “What is the Meaning of Duties?” See, <https://www.ehow.com/.html> Visited on 12.3.2012.
[xxiii] See Ss. 32 & 34 of the ART Bill, 2010 and Rule 3.10 & 3.16 of the ICMR Guidelines.
[xxiv] See for more, McGhee T.K., “Designer Babies. What are the Ethical and Moral Issues?” West Indian Med J. 2003 Jun; 52(2):170-4. Sonia M. Suter, “A Brave New World of Designer Babies?” 2007 Berkeley Technology Law Journal, Vol. 22:897; Guido Pennings and Guido de Wert, “Evolving Ethics in Medically Assisted Reproduction, Human Reproduction Update, Vol.9, No.4 pp. 397-404, 2003; John A. Robertson, “Procreative Liberty and Harm to Offspring in Assisted Reproduction”, American Journal of Law & Medicine, 30 (2004): 7-40; and Rachael Caffrey, “Ethical Issues of Reproductive Technologies: Designer Babies, Sex Selection and Donor Babies, Available at <https://www.qub.ac.uk/methics/CafferyR2008.pdf> Visited on 12.3.2012.
[xxv] See, The BelgianLaw on Research on Embryos in Vitro, 2003, Art.5(4).
[xxvi] In 1987 a South African mother bore tripletsfor her daughter Mankiller. See, Barbara Smith, The Reader’s Companion to U.S. Women’s History, Houghton Mifflin Harcourt, USA (1999), p.513; See also “Emmis Communications”, Cincinnati Magazine, Vol. 28, No. 9, 57 (Jun 1995); Sheila McLean, John Kenyon Mason, Legal and Ethical Aspects of Healthcare, Cambridge University Press, (2003), p.113.
[xxvii] See, The ICMR Guidelines, R.3.12.1.