Surrogacy agreement (ART Bill 2008) Part II

FORM – J Agreement for Surrogacy (See Rule 15.1, p91)

Why this form perplexes me?

I have been reading the draft and keep coming back to this form and find many strange, disturbing issues here that hardly ever get referred to in the draft bill. Several unexplained clauses appear in this form that actually binds the surrogate in a contract.

Now that I have read a little bit about this business of ART and have been discussing with friends about surrogacy, I am now trying to put myself in the shoes of a woman who is about to consider surrogacy. I will tell you why this form would stop me in my tracks about such a consideration, be it as a voluntary, commercial or altruistic mother;

[I, ________(the woman), with the consent of my husband (name), of ______ (address) have agreed to act as a host mother for______who are / is unable (or do not wish to) have a child by any other means.]

If I were to be a voluntary or altruistic mother, I would question what (or do not wish to) part of this agreement is? Why would I volunteer for someone who does not wish to go through the pains of pregnancy? I understand if it is a medical condition, what does ‘or do not wish to’ mean?

Is the draft committee laying out a situation where surrogacy can be sought without clear medical reasons? As is being suggested in the US media, the likelihood of women not wanting to interrupt their careers with maternity leave and resorting to surrogacy?

[I had a full discussion with ____of the clinic on ____ in regard to the matter of my acting as a surrogate mother for the child of the above couple.]

According to this I am counseled at the clinic, by a blank. What does that blank mean; a doctor, a team of doctors, social workers, lawyers, who?

[ I have been assured that the genetic mother and the genetic father have been screened for HIV and hepatitis B and C before oocyte recovery and found to be seronegative for all these diseases. I have, however, been also informed that there is a small risk of the mother or / and the father becoming seropositive for HIV during the window period.

I consent to the above procedures and the administration of such drugs that may be necessary to assist in preparing my uterus for embryos transfer, and for support in the luteal phase.]

This turns my blood cold. The draft has forms for tests of HIV and hepatitis for all parties concerned, and one keeps reading it as, if it turns negative, there is no fear to go ahead with the ART procedures. No warning, no safeguards, no anticipation and consequences in the event of surrogate mothers getting infected by HIV. Not even in passing. And then, bang in the consent/contract form she is expected to sign away saying that she has been informed that there is a small risk that the parents/donors may turn seropistive for HIV during the “window period”

Ok, my country is filled with women who rent their wombs because they are too poor to do anything else. Ok, they are uneducated, or educated but too filled with love and duty to care about their rights and be informed about risks to their health. But there is a small population of informed people, who care, who want to know, who know. Does the draft committee seek to disregard them also so blatantly?

Should not the ICMR expert committee have first and foremost addressed the risks regarding HIV? Provided the necessary safeguards, made the best practices mandatory for the clinics to follow in this regard? Such as quarantining embryos for six months and screening again after that, instead of blissfully taking a stand of she has consented in the form!

If there is even a tiniest bit of chance of the mother getting HIV simply because she is part of ART procedure, how much of thought and consideration should go into this aspect?

Should not the experts have an anticipated scenario of a surrogate, God forbid actually getting infected, and present to all, the public and the surrogates this horrific reality before they expect a signature on it?  What is  the role of these regulations if it does not protect the parties by informing? What if she does get infected? What about the baby? Will the couple still accept the baby? What about her, is she insured for this possibility?

More strangeness!!!

[I certify that (a) I have not had any drug intravenously administered into me through a shared syringe; (b) I have not undergone blood transfusion; and (c) I and my husband have had no extramarital relationship in the last six months.

I also declare that I will not use drugs intravenously, undergo blood transfusion excepting of blood obtained through a certified blood bank, and avoid sexual intercourse during the pregnancy.]

Avoid sexual intercourse during the pregnancy. Why? As far as I understand, this is advised when the pregnancy is considered high risk.

This clause is not explained in the draft anywhere, it just appears here, please correct me if I am wrong. Does this mean that the expert committee believes that surrogate pregnancies are high risk pregnancies? Or whatever the reasons please explain. Interested readers may want to read this study in this context.

In part I, it has been pointed out that in the case of the death of the parents provisions as alternate persons responsible for the child appears here in this form and not in the draft itself.

A lot of literature available on ART indicates that some/many of the commercial surrogates are unable to understand English and some even cannot sign their names and have to use their thumb print instead. In light of this, the agreement makes little sense to the surrogate. However, it does seem tailored to be used as a safety device by the clinics in case of litigation.

Is the contract and associated material available in local languages? An independent counselor (not connected to the clinic) should be available to advise the surrogate on the risks involved, in very simple terms and in the language spoken by the surrogate.

As the surrogate is the person in the contract who has the most at stake (her life), there should be clauses to protect her interests.

(emphasis in quotes are mine)