An Introduction to Surrogacy Commercial Agreement
Commercial Surrogacy refers to the carrying of a child in whom by a woman (surrogate mother) till birth and then handling it to the concerned couple or person. It is a legal agreement in which a woman agrees to bear the child of another person or persons, by receiving money. It is not mandated to involve monetary value surrogacy in surrogacy but if it includes monetary compensation it turns out to be commercial surrogacy. In legal surrogacy couples can seek the help of an unknown third party to be a surrogate mother rather than someone near relative or known, eliminating risks that might take place in the future. It provides help to thousands of infertile couples, single parents, and members of the LGBT community by adding up to their families.
Essential Requirements for Surrogacy
The intended woman must possess certain issues:
i.) Medical problems with the uterus;
ii.) Hysterectomy removing the uterus;
iii.) Conditions making pregnancy impossible
In cases where:
i.) Surrogates have made parenthood an option for people who might not be able to adopt a child due to their age or marital status.
ii.) The gay couple chooses an egg donor, fertilizes that donated egg, and then has the embryo implanted in a gestational surrogate to carry until birth.
A surrogate must be 21 years old or above, have already given birth to at least one baby, and must sign a contract.
In traditional surrogacy, the gestational mother is also a genetic mother as the donation of her ova takes place, and both the ova eggs when artificially fused with the father’s sperm would have a genetic link to the child; such conditions may give rise to claim legal motherhood in future. Moreover, a shift from transitional to gestational surrogacy has been observed in which the intending parent(s) donate either or both egg and sperm or receive donated eggs and/or sperm, the ovum is fertilized and then implanted into the surrogate’s womb. The central and most important aspects of a surrogacy contract are that the surrogate has no parental rights to the child. It is seen that the primary regulation of commercial surrogacy is through contractual agreements. It has been contended that contract laws are best to serve the interest of parties to surrogacy agreements; however, there are certain aspects to keep consideration. For transnational agreements, there may be concerns regarding the process of contract formation and the ability of surrogates to enforce terms. The vast majorities of surrogacy contracts do not involve claims of contract breach and are completed without difficulty. But where conflicts do arise, the specter of exploitation also looms. As such, regulating contracts and contract enforcement to ensure fairness potentially reduces both domestic and transnational controversies. There is a misconception that the contracting parties are in relatively equal bargaining positions whereas it is a choice for all, in order for the bargain to be fair, there must be adequate disclosure of the terms and informed consent. Each Surrogacy contract must contain terms and conditions as per the state surrogacy laws. But in common a surrogacy contract must possess some of these essential elements:
i.) Finances include surrogate base expenses and other medical compensation.
ii.) The risks and liabilities associated with pregnancy.
iii.) The surrogate’s health, responsibility including health and safety of baby throughout the pregnancy.
iv.) An agreement on sensitive issues such as selective reduction and termination, if that should become necessary.
v.) Clarification of parental appointments and during birth.
vi.) And more as considered by the parties.
SURROGACY IN INDIA
India served to be a great platform for international intended parents in terms of commercial surrogacy but in 2015 Indian government passed new regulations considering commercial surrogacy to be illegal in India for foreign couples. Today Indian surrogacy laws make it completely illegal for foreign intended parents to carry out surrogacy in India.
SURROGACY (REGULATION) BILL, 2019
The surrogacy (regulation) Bill is a moral, ethical and social legislation that protects the rights of surrogate mothers as well as children born through surrogacy, prevents exploitation of surrogates by protection and welfare. Some of the essentials of the bill:
i.) The couple must be Indian, non-resident Indians, persons of Indian origin, or overseas citizens of India.
ii.) The surrogate should be married and have her own child as surrogacy may lead to infertility.
iii.) Single women cannot opt for a surrogate child except in case of a widow or divorce if acquired a certificate of recommendations from the National Surrogacy Board.
iv.) Insurance of 16 months is compulsory for a mother to take care of medical needs in case of emergency.
v.) Surrogacy clinics need to be registered.
Surrogacy is a great process as it assures and provides help to those couples or persons who lack the ability to be fertile or reproduce. It provides happiness and a complete family to the intended and desired persons. Commercial surrogacy agreement mentions the monetary help in addition to other aids and compensation required by the surrogate mother to carry the child in her womb. It protects surrogate mothers from exploitation by protecting their rights, legally bounding intended parents to work in accordance with law and agreement. Though heated debates often take place relating to commercial surrogacy as some claim it to be destructive or against the moral and ethical values of society, they believe it to be destroying vulnerable women. But with the changing era and development, of terminology commercial surrogacy has been legalized by several states. They consider being a parent as a right of each and every couple or person who desires to be. With the enhancement of technology, such great processes can be performed with due care and precaution. Commercial surrogacy not only provides intended parents with the child but also ensures proper financial assistance and compensation to surrogate mothers in addition to their health safety and security. Commercial surrogacy can be termed as a great path for intended or incapable parents for seeking and achieving happiness in their life.
The article first published on Lexology.com and the same can be accessed here.