Commercial surrogacy refers to the carrying of a child by a woman (surrogate mother) until birth and then being handed over to the couple or individual concerned. It is a legal agreement in which a woman agrees to carry the child of one or more other people, receiving money. It is not compulsory to involve monetary 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 rather than someone close or known, thereby eliminating risks that may arise in the future. He helps thousands of infertile couples, single parents and members of the LGBT community by adding to their families.
Essential Requirements for Surrogacy
The future wife must possess certain problems:
- medical problems with the uterus;
- hysterectomy removing the uterus;
- conditions that make pregnancy impossible
In cases where:
- Surrogates have made parenthood an option for people who might not be able to adopt a child due to their age or marital status.
- The same-sex couple chooses an egg donor, fertilizes that donated egg, and then has the embryo implanted into a surrogate mother to be carried until birth.
A surrogate mother must be 21 years or older, have already given birth to at least one baby and must sign a contract.
In traditional surrogacy, the surrogate mother is also a genetic mother at the time of her egg donation, and the two eggs, when artificially fused with the father’s sperm, are said to have a genetic link to the child; such conditions may give rise to claims of legal maternity in the future. Additionally, a shift from transitional surrogacy to gestational surrogacy has been observed in which the intended parent(s) either donates both eggs and sperm, or receives donated eggs and/or sperm, the egg is fertilized and then implanted in the uterus of the surrogate mother. The central and most important aspects of a surrogacy contract are that the surrogate has no parental rights over the child. It is seen that the main regulation of commercial surrogacy is through contractual agreements. It has been argued that contract laws are best for serving the interests of parties to surrogacy agreements; however, there are some aspects to keep in mind. For transnational agreements, there may be concerns about the process of contract formation and the ability of surrogates to enforce terms. The vast majority of surrogacy contracts do not involve breach of contract claims and are concluded without difficulty. But where conflict arises, the specter of exploitation also looms. As such, regulating contracts and enforcing contracts to ensure fairness potentially reduces national and transnational controversies. There is a misconception that the contracting parties are in relatively equal negotiating positions while it is a choice for all, for the negotiation to be fair there must be adequate disclosure of the terms and a informed consent. Every surrogacy contract must contain terms and conditions in accordance with state surrogacy laws. But in common, a surrogacy contract must have some of these essential elements:
- Finances include basic surrogate expenses and other medical allowances.
- Risks and responsibilities associated with pregnancy.
- The health of the surrogate mother, her responsibility, including the health and safety of the baby throughout the pregnancy
- An agreement on sensitive issues such as selective reduction and termination, if necessary.
- Clarification of parental appointments and during childbirth
- And more as considered by the parties.
GPA IN INDIA
India has been a great platform for international expectant parents in terms of commercial surrogacy, but in 2015 the Indian government passed new regulations making commercial surrogacy illegal in India for foreign couples. Today, Indian surrogacy laws make it completely illegal for foreign prospective parents to practice surrogacy in India.
SURROGACY GESTATION (REGULATIONS) BILL, 2019
The Surrogacy (Regulation) Bill is moral, ethical and social legislation that protects the rights of surrogate mothers as well as children born through surrogacy, prevents the exploitation of surrogate mothers through the protection and welfare -to be. Some of the key elements of the bill:
- The couple must be Indian, non-resident Indian, person of Indian origin or foreign citizen of India.
- The surrogate must be married and have her own child, as surrogacy can lead to infertility.
- Single women cannot opt for a surrogate child unless they are widowed or divorced if they have obtained a certificate of recommendation from the National Board of Surrogacy.
- 16 months insurance is compulsory for a mother to meet medical needs in case of emergency.
- Surrogacy clinics must be registered.
Surrogacy is a great process as it insures and provides help to couples or individuals who do not have the ability to be fertile or reproduce. It brings happiness and a complete family to the intended and desired people. The commercial surrogacy agreement mentions the financial aid in addition to the other aids and compensations required by the surrogate mother to carry the child in her womb. It protects surrogate mothers from exploitation by protecting their rights, legally obliging the intended parents to work in accordance with the law and the agreement. Although heated debates often take place regarding commercial surrogacy, as some claim it is destructive or contrary to the moral and ethical values of society, they believe it destroys vulnerable women. But with the changing era and development, the terminology of commercial surrogacy has been legalized by several states. They consider being a parent as a right of every couple or person who wants it. With the improvement in technology, such large processes can be carried out with care and precaution. Commercial surrogacy not only provides the child to the intended parents, but also guarantees adequate financial support and compensation to the surrogate mothers in addition to their health security. Commercial surrogacy can be called a great avenue for future parents who are unable to seek and achieve happiness in their lives.