Surrogate Motherhood and the Legalisation of Surrogacy in India.

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SURROGACY: CONCEPT OF RENTING A WOMB

The word ‘surrogate’ has its origin from a Latin word ‘surrogatus’, meaning a substitute, that is, a person appointed to act in the place of another. Surrogacy is a practice whereby a woman agrees to become pregnant and bear a child for another person or persons, to whom she intends to transfer the child’s care at, or shortly after, birth. If the pregnant woman received compensation for carrying and delivering the child (besides medical and other reasonable expenses) the arrangement is called a commercial surrogacy, otherwise the arrangement is sometimes referred to as an altruistic surrogacy. According to another classification, surrogacy can be traditionalgestational and donor surrogacy. Traditional surrogacy involves the artificial insemination of the surrogate mother by using the sperm of the intended father. Gestational surrogacy, on the other hand, involves the creation of an embryo in a Petri dish and its implantation into the womb of the surrogate who carries it to the term. Lastly, in donor surrogacy there is no genetic relationship between the child and the intended parents as the surrogate is inseminated with the sperm, not of the intended father, but of an outside donor.

A standard definition of ‘surrogacy’ is offered by the American Law Reports in the following manner:

“…a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the child’s birth.”

In Re Baby M 109 N.J. 396,537 A.2d 1227,1988 N.J.77 A.L.R.4th 1 The Sterns entered into a surrogacy contract with the Whiteheads whereby Mrs. Whitehead would bear the child of Mr. Stern through artificial insemination and relinquish custody of the child to the Sterns upon birth. Once the child was born Mrs. Whitehead found herself unable to part with the child, and sought to retain custody. The Court found that the surrogacy contract was unenforceable because it violated state statutes and public policy. Nonetheless, based solely on the best interests of the child custody was granted to the Sterns, with visitation rights to Mrs. Whitehead.

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LEGALIZATION OF SURROGACY IN INDIA

India legalized commercial surrogacy in 2002. The combination of the low cost of infertility treatment in India – nearly one-quarter of the cost in developed nations – and the modern assisted reproductive techniques available here make India a top choice for infertility treatments, according to the Indian government's medical tourism website. The Confederation of Indian Industry predicts that commercial surrogacy will grow to be a $2.3-billion industry in India by 2012.As costs of medical treatment are low in India, it is proving to be an attractive hub for foreigners to procure benefits of ...

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