PARENTAL RIGHTS ON CHILD

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Context: The Bombay High Court ruled that sperm and egg donors have no legal parental rights or claims to biological parenthood over children born through their gametes.

Details

• The Bombay High Court clarified that sperm and egg donors do not have parental rights over children born from their gametes. This ruling has significant implications for surrogacy arrangements and the rights of all parties involved.

Background of the Court Judgment

• The case involved a 42-year-old woman seeking custody of her twin daughters born through altruistic surrogacy. The twins were in the joint custody of their father and the woman’s younger sister, who had donated her eggs.
• The custody battle raised crucial questions about the legal status of egg donors and the rights of biological parents versus donors.
• Key issues involved in this case:
  • • The Family Dynamics: The twins' biological mother and father were estranged. The egg donor, who was also the mother’s younger sister, had recently experienced the tragic loss of her own daughter and husband.
    • The Legal Question: The Bombay High Court was asked to clarify whether the egg donor had any parental rights and whether the trial court could exclude the biological mother from interim visitation rights while the custody case was ongoing.

Legal Context involved in this case:

• In India, the legal framework for surrogacy and assisted reproductive technologies is governed by the Surrogacy (Regulation) Act, 2021. This law outlines the rights and responsibilities of all parties involved in surrogacy arrangements.
• However, because the surrogacy agreement in this case was made in 2018, the 2021 Acts were not applicable. Instead, the 2005 National Guidelines on Assisted Reproductive Technologies (ART) Clinics were in effect. These guidelines state that:
• Parental Rights: Donors must relinquish all parental rights. This means that sperm or egg donors have no legal claim to be considered the parents of a child born from their donated gametes.
• Intended Parents: The legal parents are those who intend to have the child and sign the surrogacy agreement. In this case, that was the woman and her estranged husband.

Court’s Decision

The Bombay High Court emphasized that according to established guidelines, sperm and egg donors do not have parental rights. The court ruled that:

• No Parental Rights for Donors: The court highlighted that the sperm or egg donor has no legal claim to parental rights over the child. The egg donor in this case, being the petitioner’s sister, could not claim to be the biological mother of the twins.
• Intending Parents’ Rights: The court confirmed that the biological parents—the petitioner and her separated husband—who signed the surrogacy agreement, are the rightful parents of the children.
• Custody and Visiting Rights: Although the couple was separated, the court granted the biological mother weekend visiting rights until the custody case was resolved. This decision aimed to ensure that the children’s well-being was prioritized.

Significance of the Ruling

About Surrogacy

• Surrogacy is a process where a woman, known as a surrogate, agrees to carry a pregnancy for another person or couple who will become the child's parents after birth.
• Surrogacy involves two main parties: the surrogate mother and the intended parents.
  • • The surrogate agrees to carry and give birth to a baby for the intended parents.
    • This arrangement can be formalized through a legal contract.

Surrogacy is chosen for various reasons:

• Infertility: Couples who cannot conceive naturally due to medical conditions or infertility issues may opt for surrogacy.
• Health Risks: Women with medical conditions that make pregnancy risky, such as severe heart disease or a history of multiple miscarriages, might choose surrogacy to avoid health complications.
• Same-Sex Couples and Single Parents: Surrogacy provides a way for same-sex couples and single individuals to have children when they cannot conceive on their own.

Types of Surrogacy

Gestational Surrogacy

• Gestational surrogacy is the most common type of surrogacy in India. Here, an embryo is created using in vitro fertilization (IVF).
• The embryo can be formed using the intended parents’ eggs and sperm or donor materials. This embryo is then implanted into the surrogate's uterus.
• Key Points:
  • • Genetic Connection: The surrogate has no genetic link to the child. She is solely the carrier.
    • Legal Standing: This type is legally recognized in India.
    • Success Rates: Gestational surrogacy has high success rates, with around 19-33% of surrogates successfully becoming pregnant and 30-70% of these resulting in the intended parents taking the baby home.
• Example: A couple with fertility issues might use their own eggs and sperm to create an embryo, which is then carried by a surrogate who has no genetic link to the baby.

Traditional Surrogacy

• Traditional surrogacy, also known as partial or natural surrogacy, involves the surrogate’s own egg being fertilized by the intended father’s sperm or donor sperm. In this case, the surrogate is the biological mother of the child.
• Key Points:
  • • Genetic Connection: The surrogate is genetically related to the child.
    • Legal and Emotional Challenges: This type can be more legally and emotionally complex. There are higher risks of disputes over parental rights since the surrogate is the biological mother.
    • Legal Status: Traditional surrogacy is less common and is legally restricted or banned in many jurisdictions due to the complex legal issues involved.
• Example: If a surrogate uses her own eggs and the intended father's sperm, she becomes the genetic mother of the child, which can lead to complicated legal and emotional issues.

Altruistic Surrogacy

• Altruistic surrogacy is where the surrogate carries a pregnancy for the intended parents without receiving financial compensation beyond expenditure for medical expenses.
• Key Points:
  • • Compensation: The surrogate does not receive payment for her time and effort.
    • Legal Status: This type of surrogacy is legal in some countries and is often practised within families or close networks where the surrogate is motivated by personal connections rather than financial gain.
    • Example: A woman agrees to carry a child for her sister or a close friend without any financial compensation, only covering medical expenses.

Commercial Surrogacy

• Commercial surrogacy refers to any surrogacy arrangement where the surrogate is compensated beyond just medical expenses. This includes payments for her time, effort, and other related costs.
• In 2015, the Indian government banned commercial surrogacy.

Regulation of surrogacy in India

• India was once a popular destination for couples seeking surrogacy due to its lower costs and availability of surrogate mothers. This led to a booming commercial surrogacy industry.
  • • However, concerns arose about the exploitation of surrogate mothers, the potential for child trafficking, and the commercialization of motherhood.
    • In response to these issues, the Indian government enacted the Surrogacy (Regulation) Act 2021.

The Surrogacy (Regulation) Act 2021

• Prohibition of Commercial Surrogacy: The Act strictly prohibits commercial surrogacy, meaning surrogate mothers cannot be compensated beyond medical and insurance expenses. This decision was made to curb exploitation and ensure that surrogacy is conducted ethically.
• Altruistic Surrogacy Only: Under the Act, only altruistic surrogacy is allowed. This means that surrogate mothers are not paid for their services beyond the expenses directly related to the pregnancy, such as:
  • • Medical Costs: All expenses related to prenatal and postnatal care.
    • Insurance: Coverage for potential medical complications.
    • Lost Wages: Compensation for income lost due to pregnancy.
    • Psychological Counseling: Support to help the surrogate deal with the emotional aspects of surrogacy.
• Eligibility Criteria: The Act sets specific conditions for those seeking surrogacy:
  • • For Individuals: A woman must be between 35 and 45 years old, and she must be a widow or a divorcee.
    • For Couples: A legally married man and woman who can prove they need surrogacy due to medical reasons.
• Penalties for Violations: Engaging in commercial surrogacy is a serious offence under the Act. Those found guilty face severe penalties, including:
  • • Jail Term: Up to 10 years.
    • Fine: Up to Rs 10 lakh.
• Legal Framework and Protection: The Act provides a legal framework to safeguard the rights of all parties involved, including the surrogate mother, the intended parents, and the child. It also includes provisions to ensure that surrogacy agreements are transparent and fair.

Current Challenges in Surrogacy in India

Legal Restrictions and Discrimination

• Commercial Surrogacy Ban: The Surrogacy (Regulation) Act, 2021 bans commercial surrogacy, allowing only altruistic surrogacy. This means surrogate mothers can only be compensated for medical and related expenses, not for their time or discomfort. Critics argue this approach can still lead to exploitation and may dissuade potential surrogates.
• Exclusion of Single Women: The law permits surrogacy only for married couples and widows or divorcees aged 35 to 45. Single, never-married women are excluded, reflecting societal biases and denying them reproductive choices available to married individuals.

Ethical and Practical Concerns

• Surrogate Exploitation: Despite the ban on commercial surrogacy, there are concerns about the exploitation of surrogates, particularly in informal or unregulated arrangements. Surrogates may face pressure or financial incentives to undertake the pregnancy.
• Lack of Comprehensive Support: Altruistic surrogacy mandates that compensation be limited to medical and related expenses. However, this does not always cover the full spectrum of needs for surrogates, including psychological support and lost wages.

Legal and Administrative Hurdles

• Complex Legal Procedures: Navigating the legal landscape of surrogacy can be complicated. The process involves multiple approvals, and disputes can arise over parentage, citizenship, and custody.
• Inconsistent Enforcement: The effectiveness of regulations varies across states, with some regions lacking the infrastructure to enforce surrogacy laws adequately.

Social Stigma and Bias

• Societal Attitudes: Surrogacy, particularly altruistic surrogacy, is often viewed with suspicion. Single women, in particular, face stigma and negative stereotypes regarding their desire to have children outside of traditional family structures.
• Traditional Views: There is a prevailing belief that children need both a mother and a father, which affects policies and perceptions related to non-traditional family structures.

Way Forward

Inclusive Legislation

• Allow Surrogacy for Single Women: Amend the Surrogacy (Regulation) Act, 2021 to include provisions for single women and LGBTQ+ individuals. This would align with modern views on family and reproductive rights and ensure that all individuals have access to surrogacy if needed.
• Revisit Compensation Rules: Consider revising the compensation framework to better support surrogates. This could include covering lost wages, providing psychological counselling, and offering post-delivery care.

Strengthen Regulatory Framework

• Create Clear Guidelines: Develop comprehensive guidelines for surrogacy arrangements to ensure transparency and protect all parties involved. This includes clear procedures for legal parentage, citizenship issues, and medical standards.
• Improve Enforcement: Enhance the monitoring and enforcement mechanisms to ensure compliance with surrogacy laws. This may involve setting up dedicated regulatory bodies or improving collaboration between existing agencies.

Enhance Support Systems

• Provide Psychological and Social Support: Establish support systems for surrogates, including counselling and support groups, to address emotional and psychological needs.
• Financial Assistance: Ensure that financial compensation covers all aspects of surrogacy, including potential income loss and additional medical expenses.

Address Social Stigma

• Promote Public Awareness: Increase awareness and education about surrogacy and alternative family structures to reduce stigma and promote acceptance.
• Challenge Traditional Views: Encourage a broader societal acceptance of diverse family forms and reproductive choices, focusing on the well-being of children rather than traditional family models.

International Cooperation

• Learn from Global Practices: Study surrogacy regulations in other countries to adopt best practices and avoid common pitfalls. Countries like the UK and Canada have progressive surrogacy laws that could serve as models.
• Facilitate Cross-Border Surrogacy: Develop agreements or frameworks to handle cross-border surrogacy arrangements, ensuring that international regulations align and protect all parties involved.

Conclusion

• Surrogacy in India presents several challenges, from legal restrictions and ethical concerns to social stigma and administrative hurdles. Addressing these challenges requires a comprehensive approach, including legal reform, improved support systems, and societal change.
• By adopting inclusive and supportive measures, India can ensure that surrogacy practices are equitable and respect the reproductive rights of all individuals, making the way for a more just and progressive framework for family building.

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SURROGACY (REGULATION) RULES 2022

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