Adoption of children by altruistic reproductive techniques Dr. Diganta Biswas, School of Law, Christ University, Bangalore.

ALTRUISTIC REPRODUCTIVE TECHNIQUES: CONCEPT In the wake of embryonic technologies move to the forefront of the new reproductive technological cafeteria: foetal surgery, embryo experimentation, embryo transfer, and most recently use of foetal tissue for transplants and foetal reduction in utero. Though women who are the subjects/objects of these technologies, concerns about foetal technologies centres are on the foetus, not on the woman whose body is the locus for all of this experimentation. The altruistic reproductive techniques utilise the Assisted Reproductive Technology (ART) which includes a range of methods used to circumvent human infertility, including in vitro fertilisation (IVF), embryo transfer (ET), gamete intra-fallopian transfer (GIFT), artificial insemination (AI), all manipulative procedures involving gametes and embryos and treatment to induce ovulation or spermatogenesis when used in conjunction with the above methods.

The altruistic reproductive techniques (ART) involves the concepts as under- Artificial Insemination (AI): Any procedure in which human sperm are introduced into the reproductive tract of a woman by a non-coital method other than as part of an IVF or GIFT procedure. Donor Insemination (DI): Introduction of sperm which has been donated, from a man other than the woman’s partner, into the reproductive tract of a woman by a non-coital method. Donation: A process by which a person who has the responsibility to make decisions about the keeping or use of any gametes or embryo gives consent for their use by another person or persons.

In ART there are three types of donation - egg, sperm or embryo. Donor embryo: A fertilised egg where the sperm and oocyte used do not belong to the couple attempting to conceive. A donor embryo may be donated from a couple, or may be made up from a donated oocyte and donated sperm. Donor sperm: Sperm not belonging to the male partner of the couple attempting to conceive. The donor may or may not be known to the couple. Donor oocyte: An unfertilised egg not belonging to the female member of the couple attempting to conceive. The donor may or may not be known to the couple

ART Procedures In vitro Fertilisation (IVF) Procedure: A procedure whereby an egg (or more than one egg) is retrieved from the body of a woman and combined with sperm outside the body to achieve fertilisation. If fertilisation is successful and the fertilised egg continues to develop to form an embryo, the embryo is subsequently transferred back into the uterus/ fallopian tube of a woman with the aim of achieving a pregnancy. If many embryos develop some of the surplus embryos may be frozen and used later. Intra- cytoplasmic Sperm Injection (ICSI): An IVF technique where to achieve fertilisation a single sperm is injected directly into an egg. Frozen Embryo Transfer (FET): Where an embryo that has been frozen (cryopreserved) is thawed and then transferred to the uterus/ fallopian tube of a woman with the aim of achieving a pregnancy.

Gamete Intra-Fallopian Transfer: A procedure where an egg (or more than one egg) retrieved from the body of a woman and sperm obtained from a male are both inserted back into the fallopian tube of a woman, with the aim to achieve fertilisation (and then pregnancy) within the body of the woman. Assisted hatching: An in-vitro fertilisation micromanipulation in which a small opening is made in the zona pellucida of an embryo to help the blastocyst emerge prior to implantation Blastocyst: Stage of development of the embryo about 5 – 6 days after fertilisation.

CONCEPT OF SURROGACY A surrogacy arrangement or surrogacy agreement is the carrying of a pregnancy for intended parents. Intended parents may seek a surrogacy arrangement when either pregnancy is medically impossible, pregnancy risks present an unacceptable danger to the mother's health or is a same sex couples preferred method of procreation. Monetary compensation may or may not be involved in these arrangements. If the surrogate receives compensation beyond reimbursement of medical and other reasonable expenses, the arrangement is considered commercial surrogacy; otherwise, it is referred to as altruistic. The legality and costs of surrogacy vary widely between jurisdictions, sometimes resulting in interstate or international surrogacy arrangements.

TYPES OF SURROGACY Gestational surrogacy (GS) : A surrogate is implanted with an embryo created by IVF. The resulting child is genetically unrelated to the surrogate. There are several sub-types of gestational surrogacy as noted below. Gestational surrogacy with embryo from both intended parents (GS/IP): A surrogate is implanted with an embryo created by IVF, using intended father's sperm and intended mother's eggs. Gestational surrogacy and egg donation (GS/ED) A surrogate is implanted with an embryo created by IVF, using intended father's sperm and a donor egg where the donor is not the surrogate. The resulting child is genetically related to intended father and genetically unrelated to the surrogate. Gestational surrogacy and donor sperm (GS/DS) A surrogate is implanted with an embryo created by IVF, using intended mother's egg and donor sperm. The resulting child is genetically related to intended mother and genetically unrelated to the surrogate.

Gestational surrogacy and donor embryo (GS/DE) A donor embryo is implanted in a surrogate; such embryos may be available when others undergoing IVF have embryos left over, which they opt to donate to others. The resulting child is genetically unrelated to the intended parent(s) and genetically unrelated to the surrogate. Traditional surrogacy (TS) This involves naturally or artificially inseminating a surrogate with intended father's sperm via IUI, IVF or home insemination. With this method, the resulting child is genetically related to intended father and genetically related to the surrogate. Traditional surrogacy and donor sperm (TS/DS) A surrogate is artificially inseminated with donor sperm via IUI, IVF or home insemination. The resulting child is genetically unrelated to the intended parent(s) and genetically related to the surrogate.

TRADITIONAL SURROGACY: Under the system, the surrogate mother acts as both donor and the surrogate, so is also the biological mother. The biological father gives a sample of sperm that is transferred into the uterus of the surrogate with a process called intrauterine insemination (IUI) in the hope that fertilisation will take place naturally. GESTATIONAL SURROGACY: The embryo is created using the biological father’s sperm and an egg donor through IVF, meaning the surrogate is not the biological mother. Resulting embryos are transferred into the surrogate mother’s uterus with a plastic catheter using a process called uterine embryo transfer (UET) around three days after fertilisation.

LEGAL REGULATION OF SURROGACY Australia: In all jurisdictions of Australia, altruistic surrogacy has been the only recently recognized surrogacy that has become legal. However, arranging commercial surrogacy is a criminal offence. The Parentage Act 2004 was the first legislative initiative in this connection. Russia: Gestational surrogacy, even commercial, is legal in Russia, being available to practically all adults willing to be parents. There must be one of several medical indications for surrogacy: absence of uterus, deformity of the uterine cavity or cervix, uterine cavity synechia, somatic diseases contraindicating child bearing, or repeated failure of IVF despite high-quality embryos. Registration of children born through surrogacy is regulated by the Family Code of Russia (art ) and the Law on Acts on Civil Status (art. 16). A surrogate’s consent is needed for that. Apart from that consent, no adoption nor court decision is required. The surrogate’s name is never listed on the birth certificate. There is no requirement for the child to be genetically related to at least one of the commissioning parents.

UK: Commercial surrogacy arrangements are not legal in the United Kingdom. Such arrangements were prohibited by the Surrogacy Agreements Act, Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship is recognised under section 30 of the Human Fertilization and Embryology Act, USA: Surrogacy and its attendant legal issues fall under state jurisdiction and the legal situation for surrogacy varies greatly from state to state. Some states have written legislation, while others have developed common law regimes for dealing with surrogacy issues. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them, and some penalize commercial surrogacy. States generally considered to be surrogacy friendly include California, Illinois etc.

SURROGACY IN INDIA Commercial surrogacy is legal in India. The Honorable Supreme Court of India in Baby Manji’s Case [ Manji Yamada v Union of India [2008] 13 SCC 518 (SC)] recognised that the citizenship of the child born through this process will have the citizenship of its surrogate mother. The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY.” The following observations had been made by the Law Commission: - (a) Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

(b) A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child. (c) A surrogacy contract should necessarily take care of life insurance cover for surrogate mother. (d) One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

(e) Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian. (f) The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only. (g) Right to privacy of donor as well as surrogate mother should be protected. (h) Sex-selective surrogacy should be prohibited. (i) Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only. In 2013 India introduced a legislation entitled THE ASSISTED REPRODUCTIVE TECHNOLOGY. (REGULATION) BILL banning surrogacy to unmarried couples, single persons and other groups. The said bill is still pending.