Surrogacy Law Research Articles

Surrogacy in India: Problems of Legal Regulation

The article examines the problems of legal regulation of surrogacy in India, which are not least associated with such phenomena as medical tourism and the “commercialization” of the female body. “Reproductive” tourism in India in the context of commercial surrogacy, starting in 2002, led to numerous scandals and calls to stop the exploitation of women from lower social classes, which ended with the adoption of the first surrogacy law in 2016, which introduced the concept of altruistic surrogacy and Commercial surrogacy is completely prohibited. Although some restrictions have been lifted in subsequent legislation, the debate surrounding altruistic and commercial surrogacy continues, partly because surrogacy is a relatively new concept in India. With the assisted reproductive technology industry so dominant, a “compensatory” approach to solving the problem is needed, analysts say. Recent changes to India’s surrogacy legislation in 2024 to allow for donation from entities other than married couples mean new regulatory issues for surrogacy that are yet to be resolved.

Comparative analysis: Surrogacy regulation in India and global perspectives

This research paper examines the complex regulatory environment surrounding surrogacy in India, investigating its historical development and the intricate interplay of legal, ethical, and cultural factors. The paper examines the regulatory reforms that ensued after India became a prominent international hub for commercial surrogacy, with a specific emphasis on the intricate provisions of the Surrogacy (Regulation) Act, 2021. It emphasizes the impact of the act and addresses any limitations that were previously present. This study investigates the constitutional and legal ramifications that arise from the criteria for eligibility, with a particular focus on the effects on the infant, surrogate mothers, and intended parents. With the assistance of a global comparative analysis, this paper provides a nuanced perspective on surrogacy laws in Ukraine, the United States, and the United Kingdom, among others. These three jurisdictions were selected due to the fact that their surrogacy legislations regulate the industry to varying degrees: Ukraine regulates commercial surrogacy, the United States has state-made legislation, and the United Kingdom's legislation is very similar to that of India. The core of the manuscript consists of ten recommendations that are specifically designed for the Indian context. These recommendations promote the following: comprehensive legislation, parental rights recognition, autonomy for surrogate mothers, and ethical guidelines. The aforementioned suggestions encompass public education initiatives, anti-discrimination protocols, and international surrogacy regulations. In conclusion, the paper proposes a legal structure that is congruent with the cultural heterogeneity of India, thereby cultivating an atmosphere for surrogacy arrangements that is ethical, inclusive, and transparent.

THE FUTURE OF SURROGACY LAW: CAN EXISTING FRAMEWORKS ADAPT TO THE CHALLENGES OF ARTIFICIAL INTELLIGENCE?

The advent of artificial intelligence (AI) in healthcare presents significant opportunities and challenges for surrogacy law. This paper examines how existing legal frameworks can adapt to the integration of AI in surrogacy, addressing potential legal, ethical, and practical implications. Current surrogacy laws, often rigid and jurisdiction-specific, may be ill-equipped to manage the complexities introduced by AI technologies, such as enhanced matching processes, surrogate health monitoring, and predictive analytics for pregnancy outcomes. Key challenges include privacy concerns, data security, and algorithmic bias, which necessitate robust legal and ethical oversight. The rights and responsibilities of intended parents, surrogates, and offspring must be re-evaluated in light of AI’s role in the surrogacy process. This paper proposes a flexible, technology-neutral regulatory framework to ensure surrogacy laws remain relevant and effective amidst rapid AI advancements. The framework emphasizes transparency, accountability, and ethical standards in AI deployment, aiming to protect all parties involved. By exploring the intersection of AI and surrogacy law, this study contributes to the broader discourse on legal adaptation to emerging technologies, highlighting the need for dynamic legal systems capable of evolving with technological progress.

Surrogacy and the significance of gestation: Implications for law and policy.

Gestational surrogacy is ethically complex, generating very different responses in law and policy worldwide. This paper argues that contemporary surrogacy law and policy, across many jurisdictions, fail to give sufficient attention to the significance of the relationship between the child and the gestational surrogate. This failure risks repeating the mistakes of historical, discreditedapproaches to adoption and donor-assisted conception. This paper argues that proper recognition of the significance of gestation must be an organising principle in surrogacy law and policy. The paper begins by pointing to examples of surrogacy law and practice where the role of the gestator is unacceptably minimised, most notably the framing of the surrogate as a mere 'carrier'.It goes on to examine the nature of gestation, including consideration of contemporary scholarship on the metaphysics of pregnancyand emerging work in epigenetics, and argues that current evidence supports the view that the gestational relationship must be taken more seriously than it currently is. The paper then draws analogies with parenthood in donor-assisted conception and adoption to argue that approaches to parental status in novel family formations that fail to promote transparency and seek to deny the truth of familial relationships are doomed to fail. The paper concludes by suggesting some implications for law and policy that flow from placing sufficient emphasis on the gestational role. The overarching thesis of this paper is that gestational surrogacy is ethically permissible when these fundamental requirements are adhered to, and that surrogacy law should proceed on this basis.

THE FUTURE OF SURROGACY LAW: CAN EXISTING FRAMEWORKS ADAPT TO THE CHALLENGES OF ARTIFICIAL INTELLIGENCE?

The advent of artificial intelligence (AI) in healthcare presents significant opportunities and challenges for surrogacy law. This paper examines how existing legal frameworks can adapt to the integration of AI in surrogacy, addressing potential legal, ethical, and practical implications. Current surrogacy laws, often rigid and jurisdiction-specific, may be ill-equipped to manage the complexities introduced by AI technologies, such as enhanced matching processes, surrogate health monitoring, and predictive analytics for pregnancy outcomes. Key challenges include privacy concerns, data security, and algorithmic bias, which necessitate robust legal and ethical oversight. The rights and responsibilities of intended parents, surrogates, and offspring must be re-evaluated in light of AI’s role in the surrogacy process. This paper proposes a flexible, technology-neutral regulatory framework to ensure surrogacy laws remain relevant and effective amidst rapid AI advancements. The framework emphasizes transparency, accountability, and ethical standards in AI deployment, aiming to protect all parties involved. By exploring the intersection of AI and surrogacy law, this study contributes to the broader discourse on legal adaptation to emerging technologies, highlighting the need for dynamic legal systems capable of evolving with technological progress.

Surrogacy: An important pathway to parenthood. A call for international standardization

This comprehensive review examines the multifaceted landscape of surrogacy, a revolutionary treatment for infertility. The study examines historical origins, shifting trends, medical considerations, psychological implications, legal complexities, international variations, and ethical dilemmas surrounding surrogacy. With the advent of assisted reproductive technology, gestational surrogacy allows intended parents a genetic connection to their child. Medical facets encompass indications for gestational surrogacy, drawing attention to maternal health risks and infertility factors. Evidence indicates that medical outcomes are comparable to conventional pregnancies, suggesting a viable reproductive solution for intended parents. Due to the complex nature of surrogacy psychological and emotional vulnerability is inevitable; yet studies underscore positive psychological well-being and satisfaction among gestational carriers (GCs), intended parents (IPs) and children. Surrogacy also has many religious dimensions, as each religion has its own perspective on the distinctive process of creating life and its outcomes, such as, the determination of the child's mother according to their beliefs. Legal considerations emerge as a fundamental aspect, with differing regulations globally. The review emphasizes the significance of comprehensive agreements to safeguard the rights and responsibilities of surrogates and IPs. The unique surrogacy laws in Israel serve as a noteworthy example, reflecting a progressive approach that provides a promising template to establish crucial international guidelines on surrogacy. The absence of international consensus necessitates attention from the global community to address key concerns, including the well-being of GCs, legal recognition for IPs, and the child's best interests, with the goal of establishing a universal standard of care in the field.

International gestational surrogacy in the United States, 2014–2020

To describe characteristics, trends, and outcomes of international gestational surrogacy cycles in the United States (US). Retrospective cohort study. All assisted reproductive technology cycles in the US reported to the Society for Assisted Reproductive Technology Clinic Outcome Reporting Systems that included an embryo transfer to a gestational carrier from 2014 to2020. International vs. US intended parents. Cycle characteristics, geographic distributions, and obstetrical outcomes. Of 40,177 embryo transfers to a gestational carrier from 2014 to 2020, 32% were for international intended parents. The number and percent of international intended parents' gestational carrier cycles increased each year from 2014 (n = 2758, 22.0%) to 2019 (n = 4905, 39.8%) with a decrease in 2020 (n = 4713, 31.8%). Compared with cycles for US intended parents, there was a larger decrease in gestational carrier cycles between 2019 and 2020 for international intended parents (3.9% vs. 32.2%). International intended parents were more likely to be male sex (41.3% vs. 19.6%), older than 42 years (33.9% vs. 26.2%) and identify as Asian race (65.6% vs. 16.5%). International intended parents were largely from China (41.7%), followed by France (9.2%) and Spain (8.5%). Gestational carriers for international intended parents were more commonly younger than 30 years (42.8% vs. 29.1%) and identified as Hispanic race (28.6% vs. 11.7%) compared with gestational carriers for US intended parents. Cycles with international intended parents were more likely to use donor eggs (67.1% vs. 43.5%), intracytoplasmic sperm injection (72.8% vs. 55.4%), and preimplantation genetic testing (79.0% vs. 55.8%). Cycles with international and US intended parents had similar obstetrical outcomes, including live birth (adjusted risk ratio 1.01, 95% confidence interval 1.00-1.03) and multiple pregnancy (adjusted risk ratio 1.00, 95% confidence interval 0.94-1.06) rates. An increasing number of international intended parents are utilizing gestational surrogacy in the US and more frequently using cost-enhancing specialized treatment techniques. This increase is potentially because of restrictive international commercial surrogacy laws and the increased availability of reproductive medical expertise. Given this growing demographic, continued examination of the volume of cross-border reproductive treatment, as well as the legal and ethical considerations, is warranted.

Surrogacy in Our Region - How Do We Help Our Patients Who Have No Other Options?

Gestational surrogacy is a well-established fertility treatment with promising treatment success. Gestational surrogacy has multiple dimensions to consider such as medical, psychological, legal, and ethical aspects. Gestational surrogacy is allowed/supported only in some countries which limit access of the couples who require treatment in many countries. Many countries have surrogacy law to regulate gestational surrogacy and to provide legal rights of the intended parents over the birth of their child from the surrogate mother. Surrogacy law also provide protection to the right of the surrogate mother as well. Surrogacy law differs from countries to countries which lead to an increasing trend of cross-border gestational surrogacy treatment toward the countries which allow legal gestational surrogacy or to the country with no law to regulate gestational surrogacy. The intended parents may face legal problems before returning to their countries of origin or when trying to have their children legally recognized in their countries. The intended parents exploring cross-border surrogacy treatment should get legal counsel in their own country to assist with immigration, parentage, and citizenship for the child born through a surrogacy arrangement outside their own country. Due to limitation to gain access to gestational surrogacy for couples in many countries, there is rapidly growing research on the uterus transplantation with reported success on giving birth to healthy children. This could be an alternative to gestational surrogacy for women with uterine factor infertility. However, this also pose some ethical challenge on the uterus donation as organ.

Exploring the complexities of posthumous reproduction in fertility preservation for oncology patients with poor prognosis.

The field of fertility preservation (FP) for oncology patients has evolved significantly in recent years, offering new possibilities for individuals with life-threatening illnesses. We commend Jones et al. for their comprehensive ethical review of offering FP to patients with poor prognoses, acknowledging the potential benefits that it may bring. "Poor prognosis" in this context implies a high likelihood of death due to cancer progression. We highlight the importance of considering posthumous reproduction, involving the use of cryopreserved gametes or embryos to conceive a child after one or both partners have passed away, a topic briefly mentioned by Jones et al. Posthumous reproduction raises complex ethical, logistical, and legal questions. Distinctions between cryopreserved sperm and oocytes are discussed, with each scenario presenting unique challenges. The article also examines the complexities faced by same-sex couples in posthumous reproduction, addressing issues related to donor selection, legal parentage, and rights. Legal and regulatory aspects play a crucial role, including obtaining clear and legally valid consent, defining parental rights, navigating surrogacy laws, and addressing inheritance and estate planning. Ethical dilemmas require healthcare professionals to ensure informed decision-making, consider psychological impacts, and offer information on alternative family-building options.

Womb to rent: the ethical and legal implications of surrogacy in Ireland.

Surrogacy is a form of assisted human reproduction whereby a surrogate woman carries a pregnancy for a commissioning couple or individual. There are two types of surrogacy, traditional and gestational. Worldwide we have seen a rapid increase in the use of surrogacy. Despite this, there is a lack of consensus internationally on the laws governing surrogacy. In Ireland, surrogacy remains largely unregulated. Currently, there is no specific legislation for surrogacy. This review aims to discuss its current regulatory status and associated ethical issues. On surrogacy from an Irish legal perspective, this study is to (i) demonstrate the lack of legislation, (ii) describe the Health Bill 2022 and (iii) examine the challenges surrounding surrogacy and Irish case law. On surrogacy from an Irish ethical perspective, this study is to (iv) discuss the ethical issues surrounding autonomy, (v) discuss the ethical issues surrounding non-maleficence, (vi) discuss the ethical issues surrounding justice and (vii) evaluate ethical issues specific to commercial surrogacy: (1) child welfare and (2) commodification and exploitation of children and women's bodies. Surrogacy has raised several ethical issues. There are issues surrounding autonomy of the surrogate and commissioning couple, child welfare, exploitation and commodification, non-maleficence and justice. There are also significant legal concerns with surrogacy. It is neither legal nor illegal in Ireland. This creates challenges for the commissioning couple particularly in terms of custody of the child.

The Surrogacy Literacy of the Indian Surrogate: The Filmy Way

According to narrative theories, fiction and non-fiction literature are text types that can manifest themselves in different mediums. Cinema is a medium that imitates both text types for a screenplay. However, when a non-fiction work is fictionalised for its cinematic representation, it invites urgent and special attention on the social front. This study investigates the sexual, social and economic typecasting of Indian surrogates through the lens of Indian cinema. The landscape of the media texts used for this study ranges from two prevalent practicing modes of surrogacy in India—the traditional form of surrogacy and the gestational form of surrogacy. The traditional form of surrogacy in this article is represented in the movies Doosri Dulhan (1983) and Chori Chori Chupke Chupke (2001), whereas the movie Mimi (2021) represents the gestational mode of surrogacy. These media texts often represent overtly fictionalised accounts of Indian surrogacy and considerably tamper the authenticated contents of Indian white paper documents on surrogacy. Anindita Majumdar talks about the ‘prostitute surrogate’, a type-casted representation of Indian surrogates, where the character of surrogates is that of sexually provocative women or prostitutes. For scrutinising this prototypical representation of surrogates, the methodological framework of this paper borrows arguments from Aristotle’s theory of mimesis and Seymour Chatman’s narrative theory. The article also advocates a nascent coinage—surrogacy literacy, a literary drive to keep a check on how surrogates are represented in films dealing with sensitive technology like assisted reproduction. The possible changes in such representation due to the new surrogacy law in India are also vital considerations of the article.

Surrogacy in the Republic of Kazakhstan: A theoretical and legal perspective on legislative regulation improvements

A comprehensive understanding of medicine and psychology is indispensable for successful surrogacy practices. This paper aims to provide a qualitative assess-ment of modern Kazakhstan's legislative regulation of surrogacy in light of con-temporary challenges. This paper intends to highlight some aspects of surrogacy law that have not been adequately expressed in Kazakhstan contract law. The study revealed that a number of issues in this area are not regulated by law in Ka-zakhstan, creating legal gaps and potential contract law issues. Preparing a docu-ment or official commentary addressing many issues in contractual relationships pertaining to surrogacy contracts could be an essential solution. Family and healthcare lawyers will find the information in this paper useful for their practices.

UK intended parents’ characteristics, experiences, and views on surrogacy law reform

Abstract What are intended parents’ experiences of surrogacy, understandings of the law, and views on legal reform, and how do these compare with those of surrogates? We conducted an online retrospective survey of intended parents who had treatment with a gestational surrogate in two clinics between March 2014 and October 2021. The 61 respondents ranged in age, occupation, and household income. Generally, they reported higher household incomes than surrogates, though this was not universal. Just over half of the respondents were heterosexual, while almost half were in same-sex male couples. Most were White. Over half met the surrogate through a non-profit surrogacy organization or ‘online’. Most successfully established a pregnancy on their first surrogacy journey; in most of these cases, the surrogate delivered a child. Most respondents believed surrogates should not be the legal mother and there was general support for proposed reforms that would recognize intended parents as legal parents from birth. More ambivalence was apparent in relation to finances though expense models were preferred over payment models. There was general support for advertising. The UK anticipates draft new surrogacy legislation in spring 2023. This study could inform public and parliamentary debates in the UK and elsewhere. Moreover, the results from this survey can assist in the development of good practice models for the care of intended parents on the surrogate pathway.

Reforming Quebec’s Surrogacy Laws

In October 2021, the Quebec government introduced Bill 2, which proposed significant reforms to Quebec’s surrogacy laws. Quebec’s Minister of Justice emphasized that Bill 2 was intended to better account for the needs and lived realities of Quebec families. He also specified that its surrogacy provisions aimed to prioritize the best interests of children while also protecting surrogates’ rights. This article explores Bill 2’s proposed reforms to Quebec’s surrogacy laws and their implications for surrogates, intended parents, and the children born through these arrangements. I argue that while Bill 2’s proposals would go a long way towards legitimizing and regulating surrogacy arrangements, the bill leaves a series of important questions unanswered and may have effects that run counter to lawmakers’ objectives. The reader should be advised that when this article was being edited and typeset in preparation for publication, the Quebec government re-introduced Bill 2 as « Bill 12 » with some minor modifications to its provisions pertaining to surrogacy. Notably, Bill 12 clarifies that the surrogate will remain the child’s legal parent, and a court will not have discretion to modify the child’s filiation, in the event the surrogate refuses to give up their parental rights following the birth. However, given the similarities between the two bills, this article’s commentary and criticisms remain highly relevant and timely with respect to Bill 12’s proposed reforms to Quebec’s surrogacy laws.

RETHINKING LEGAL AND REGULATORY FRAMEWORK FOR SURROGACY THROUGH ASSISTED REPRODUCTIVE TECHNOLOGY IN GHANA AND NIGERIA: LESSONS FROM THE SOUTH AUSTRALIAN SURROGACY ACT 2019

Surrogacy issues have been on the front burner of the international community, and many countries in the world (including African countries) are making efforts to regulate surrogacy through assisted reproductive technology. Nigeria’s National Health Law 2014 does not have any provision for surrogacy through assisted reproductive technology and the Assisted Reproductive Technology Bill which is at the Nigerian National Assembly since 2016 is yet to be passed into law. Recently, Ghana attempted this through the Registration of Births and Deaths Act, 2020 (Act 1027). The law aims to provide for the registration of births, foetal deaths, and death in the country. It officially recognised surrogacy through the assisted reproductive system. Though Ghanaian law only provided for the registration of birth of children born through surrogacy, it recognises the existence of parties to surrogacy. There has been fear that surrogacy practice can turn into modern-day slavery, and human trafficking, putting the lives of the surrogate mother and child in danger if not properly regulated. This article considers the legal framework for surrogacy through assisted reproductive technology in Nigeria and Ghana through doctrinal research methods. The article examines the South Australian Surrogacy Act 2019 and observes that the law is a model law for surrogacy regulation in Nigeria and Ghana. This article in its recommendation suggests that the South Australian Surrogacy Act 2019 should be used as a model for making surrogacy laws for each of the African countries.

Shared intent in third-party donation will underpin the success of new surrogacy laws

The demands for surrogacy treatments continue to grow worldwide. However the legal guidance for non-commercial surrogacy treatments remains inadequate, and this commentary argues how the forthcoming guidance on surrogacy from the UK Law Commissions would benefit from a bold decision based on previous experience derived from similar developments in three other areas of assisted conception.

Intersection of right to privacy and surrogacy law

Privacy is an essential component of human existence, and is now a fundamental right of every individual. It is realised that this fundamental right to maintain one's secrecy and solitude according to one's whims requires a definitive meaning and strict practical application to ensure citizens autonomy. The necessity for privacy regulations and civil rights of privacy for every individual, regardless of sexual choice, sparked the privacy debate in the twenty-first century. However, because privacy is not an absolute right, every invasion must be justified by law and must be founded on legality, need, and proportionality in order to protect this prized right. One such on-going instance is the relationship between the Surrogacy Bill and the Right to Privacy. The Bill is heavily criticised for being discriminatory, prejudicial, and invasive of the fundamental right to privacy. In the paper, the author traces out how the Right to Privacy pertains to one's body with regard to the Surrogacy Bill. Issues of bodily autonomy, consent, information sharing, and so on are thoroughly discussed in the paper.

Upholding the dignity of gay men who are (prospective) parents: an analysis of adoption and surrogacy law

ABSTRACT Many gay men want to be parents. Some, however, feel unable to explore their parenting desires due to heteronormative understandings of the family which pervade their everyday lives. By inhibiting these gay men from exploring their parenting desires, wider society treats them differently from other social groups and curtails their liberty. Another way of thinking about this, at a more fundamental level, is that wider society is disrespecting the dignity of gay men. While law cannot singlehandedly end the stigma that gay men face, it can uphold their dignity by embracing gay men within the protective legal frameworks that are available to other new parents, and signalling the legitimacy of gay men’s reproductive choices. Through this analytical lens, this article then assesses how far adoption and surrogacy law historically upheld the dignity of gay men who were (prospective) parents; how far they currently do; and if (and how) they could go further. The article concludes that significant progress has been made towards judicial and Parliamentary respect for the parenting desires of gay men, but with scope for improvement, particularly regarding the legislative framework for surrogacy.

A COMPREHENSIVE STUDY ON THE SURROGACY (REGULATION) ACT, 2021 VIS-A-VIS THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021

Surrogacy is a process or procedure where a woman consents to be pregnant for other intended/desired parents who are unable to conceive due to medical/natural reasons. Overall, to say that, this is an agreement that implies a consensus ad idem between both the parties i.e., the surrogate mother, and the expected parents. From ethical and moral perspectives, it’s helpful, but some instances prove it to be a wringing of all three; surrogate, locum tenens baby and in-fecund couple. The union government keeping in view the advantages and disadvantages, has taken numerous drives to control and to bridle the ART centers. The Surrogacy (Regulation) Bill was passed by the Lok Sabha on 19th December,2018 and the same has received President’s assent on 25th Dec, 2021 in order to practice and process of surrogacy. Similarly, the Assisted Reproductive Technology (Regulation) Act, 2021 has also received the assent of the president for the regulation and supervision of the Assisted Reproductive Technology herein after called as ART. This is a significant pace taken to end commercial surrogacy in India. This article, attempts to put forth the effort to contemplate the notion of surrogacy and surrogacy law in India. To a greater extent, the paper also focuses on the idea of the malleability of surrogacy in mythology. It is appropriate to note here that in India commercial surrogacy is legal. Many infertility couples, even outsiders approach India for their carving to set off parents. Albeit both the parties acquire good sake out of this procedure, however, there are some indubitable legal proceedings which are exceptionally mind-boggling and entail, inscribed and set on by umbrella legislation. Surrogacy entails a squabble of profuse interests and has memorable effects on the foremost section of the community. Finally, the paper is concluded by giving suggestions. Key words: -Surrogacy, Commercial Surrogacy, Surrogacy Act, Assisted Reproductive Technology, surrogacy and mythology etc.

Maternal–Fetal Microchimerism and Genetic Origins: Some Socio-legal Implications

What are the implications of microchimerism in sociocultural and ethico-legal contexts, particularly as they relate to the destabilization of genetic origins? Conventional biomedicine and related law have been reluctant to acknowledge microchimerism—the existence of unassimilated traces of genetic material that result in some cells in the body coding differently from the dominant DNA—despite it becoming increasingly evident that microchimerism is ubiquitous in the human population. One exception is maternal–fetal microchimerism which has long been recognized, albeit with little consideration of the nonmedical implications. Most immediate issues concern the ongoing biomedical debate around whether microchimerism is beneficial in terms of enhancing the body’s range of immunological responses, harmful in provoking autoimmune diseases, or simply neutral with respect to subsequent health. That controversy remains unresolved, but whichever way it develops, I want to extend consideration by insisting that changing biological concerns cannot be separated from sociocultural and ethico-legal effects. Once the diversity of DNA coding in a singular body has been established, relations of kinship, the identification of legal parenthood, and the operation of surrogacy laws are of direct interest. The overriding problematic asks whether our ethical and legal apparatus is able to address such newly emerging questions.