Mar 5, 20228 min read

Surrogacy rights of LGBTQI+ couples

This article is written by Harsh Gupta pursuing BA.LLB from School of law, HILSR, Jamia Hamdard. This is an exhaustive article which deals with various facets of law on surrogacy concerning the rights of LGBTQI+ couples.

Introduction - About surrogacy and its aspects

If we try to go into the origin of the concept of surrogacy, it’s related to family making. Surrogacy enables a couple to build a family through the help of a surrogate mother. Surrogacy is the process by which a woman agrees to give birth to a baby for someone else, and the mother who gives birth to such a baby is known as the surrogate mother. Surrogacy helps couples to form a family of their own as there can be various reasons for couples to give the responsibility of giving birth to surrogate mothers, few reasons can be lack of time and interest, infertility in men and women, incompetence, pregnancy problems and many more.

Now when it comes to the LGBTQI+ community, countries like India does not recognise the institution of marriage to LGBTQI+ couples as same-sex marriage has not been legalised in India yet, so the family does not exist. As same-sex couples marriage haven't been recognised yet, the main question that has been raised over the years is who will be the husband and wife. Surrogacy enables those people to begin their families.

Now we need to also address what benefits surrogate mothers receive while going through the surrogacy process-

Advantages for Surrogate Mothers

A surrogate mother enjoys a deep sense of purpose realizing they have contributed in an unusual and life-changing way to the happiness of another family. Numerous surrogate mothers develop relationships that last throughout the family's lifetime. Surrogacy turns a normal biological function of a woman’s body into a commercial contract. Those in favour of surrogacy maintain that the surrogacy agreements benefit all involved parties since two desperate women's needs are met. In the surrogacy arrangement, it is often said 'the barren gets the baby, the broke gets the bonus'. Oftentimes, surrogate mothers use the earnings they receive to improve their lives. Surrogacy is advocated by liberals as a form of autonomy and choice. A person has the freedom to do whatever he or she wants so long as they do not harm other people. This applies both to intended parents and surrogate mothers. The practice tends to be a bit different since coercion and intimidation affect one's ability to choose.

Disadvantages for Surrogate Mothers

A surrogate service is advertised. Operational agencies make huge profits by recruiting surrogates. Commercial surrogacy raises concerns of black market baby sales, breeding farms, turning impoverished women into baby producers, and selective breeding at a price. Surrogacy reduces a pregnancy to a service and a child to a commodity. The customer, like in any commercial transaction, lays out his/ her conditions before purchasing the product. A surrogate may be forced to terminate a pregnancy if it is so desired by the contracting couple, but she will not be able to do so if it is against the couple's wishes. Baby keeping is a challenge for her. In some cases, people have specified the sex of the baby, refused to accept the baby if it was abnormal, and sued the surrogate for violating the contract.

Laws for surrogacy in different countries

In Asia

In the Asian continent, few countries have recognised surrogacy, but many haven't, including China and Japan.

In Israel, in 2020 the Supreme Court ruled that giving access to surrogacy rights to single women but not giving the same rights to LGBTQI+ will amount to discrimination based on the right to equality and right to parenthood and legalized the same rights of surrogacy to same-sex couples.

In Africa

The only African country that allows for joint adoption through surrogacy is South Africa by same-sex couples. In the year 2002, the decision was pronounced in the case of Du Toit v. Minister of Welfare and Population,2000 which amended the Child Care Act, 1983 to allow for both joint adoption and step-parent adoption by same-sex couples. The Child Care Act,1983 was replaced by the Children’s Act,2005 which allowed joint adoption irrespective of homosexuality or heterosexuality of couples

In the Americas

In the United States of America, there is a diverging position on surrogacy in different states of America, there are states where surrogacy is extremely prohibited such states are:—New York, Indiana and Michigan, in these states legally speaking, contracts related to surrogacy is void and unenforceable in a court of law, there are few states in America where surrogacy is allowed such states are:-California, Florida, Maine, Virginia, and ten more states which expressly permit surrogacy. As far as governing law for surrogacy is concerned it’s different at different places for different states within America.

In California, there is a law that explicitly regulates full surrogacy contracts only. Laws regarding surrogacy in California are not extreme or hard to follow as they promote surrogacy. California doesn’t impose any restrictions on who can be a surrogate or an intended parent, laws doesn't talk about the illegality of commercial surrogacy which simply means it doesn't ban commercial surrogacy as California also allows compensation for the surrogate but the law is silent on the reasonableness of amount to be paid.

In Maine, surrogate mothers are required to be at least 21 years old, to undergo a medical examination, and to sign a contract for the transaction & surrogate and intended parents to be a resident of Maine and the surrogate must become pregnant within one year from the date of the agreement.

As far as surrogacy rights of LGBTQI+ couples are concerned, the US is still the best country to go for surrogacy, being a liberal nation in the true sense.

In Europe

In most European countries like Germany, France, Austria, Norway, Sweden, Estonia, surrogacy is prohibited and violating the law regarding surrogacy can invite serious punishment, whereas commercial surrogacy is prohibited in the UK, Denmark, Czech Republic, Portugal, France, Netherlands, whereas surrogacy of all forms is legal in Ukraine, Russia, and Belarus. There are some countries in Europe where surrogacy is neither regulated by law nor prohibited, these countries are Greece, Belgium, Finland and Spain. In the United Kingdom surrogacy contracts are not enforceable which means that the law on surrogacy in the UK doesn’t recognise surrogacy agreements binding on any party to the contract.

Taboos linked to parenting and LGBTQI+ couples

First of all, to begin the author feels LGBTQI+ couples are themselves taboos to society, it is the society that recognises a person, good or bad, honest, right or wrong. The responsibility of

being a parent includes taking care of food, shelter, and at the same time, it is a challenging experience. A child growing up in society will not be welcomed and will be discriminated against based on their parentage just because they are LGBTQI+. As opposed to straight surrogacy, LGBTQI+ couples need to decide whose genetic material will be used before beginning the surrogacy process.

Since same-sex couples can only donate sperm or eggs, so they need a donor of genetic material, for instance, if a couple is gay, that person needs to donate eggs, while a couple is lesbian, that person needs to donate sperm, so while choosing donor, it is advisable to choose among a nearest relative or friends to give the biological link, i.e.Intended fathers may choose to use one partner’s sperm with eggs from a close relative of the other partner, giving both fathers a biological link to the child. LGBTQI+ community families which have been created through surrogacy may face the additional challenge of talking about their child’s birth story. When children are growing up, there may be nuances about their birthplace or origin and it can be challenging to explain these factors to them.

Countries that allow LGBTQI+ couples to adopt and have children through surrogacy

Countries that have been practising a liberal approach when it comes to recognising LGBTQI+ couples rights when it comes to adoption of a child by way of surrogacy and recognising the right of parenthood are as follows-

Joint adoption by same-sex couples is legal in the following countries:

Andorra (2014), Argentina (2010), Australia (first jurisdiction 2002, last jurisdiction 2018), Austria (2016), Belgium (2006), Brazil (2010), Canada (first jurisdiction 1996, last jurisdiction 2011), Colombia (2015), Costa Rica (2020), Croatia (Partner-Guardianship since 2014; full joint adoption since 2021), Denmark (2010), Greenland (2016), Faroe Islands (2017), Finland (2017), France (2013), Germany (2017), Iceland (2006), Ireland (2015), Israel (2008), Luxembourg (2015), Malta (2014), Netherlands (2001), New Zealand (2013), Norway (2009), Portugal (2016), South Africa (2002), Spain (2005), Sweden (2003), United Kingdom, England and Wales (2005), Scotland (2009), Northern Ireland (2013), United States, Uruguay (2009).

India’s stand on surrogacy & LGBTQI+ Rights

As far as India's stand is concerned, it prohibits any intended parents from any foreign land in India to complete a surrogacy in India, unlike the US. the recent Amendment Bill,2019 on surrogacy made commercial surrogacy illegal, the law further allowed for only altruistic surrogacy for needy and for infertile Indian couples, the law further imposed a condition that doctor’s certificate for their infertility was required mandatorily along with the condition that intended parents had to be married for five years. To stop the exploitation of women as surrogate mothers the law imposed restrictions to be a surrogate only once and there must be some relationship between intended couples and surrogate mothers and that surrogate mothers are to be married and have a biological child. This Act further bans single parents, homosexuals and live-in couples from surrogacy.

Conclusion

We often talk about human rights, but most often we exclude the rights of LGBTQI+ communities, so somehow we dehumanise them and their existence on earth is considered bane for most of us, it’s time to adopt a liberal approach by all the countries to safeguard the rights of LGBTQI+ couples when it comes to the right of adoption and right of parenthood.

The author welcomes the move of the Israeli Supreme Court to provide all necessary assistance to LGBTQI+ couples to go for surrogacy. Further, it’s important to recognise surrogacy as an alternative to giving birth to a child and it can happen by the internalization of the whole concept of surrogacy as in countries like India, Bangladesh, Pakistan, Nepal there is a lack of awareness so many times parents thinks that incompetence is the result of the curse of past life.

So the need of the hour is to spread awareness and at the same time, it’s important to prepare a proper mandate for the enforceability of the agreement and to safeguard the rights of surrogate mothers. Every country has different laws regarding types of surrogacy, in many countries commercial surrogacy is a ban and in, some countries it’s allowed, so there is no picture as to what is right or wrong because of diverging principles and laws in different countries, so it's better to internationalise the issue so that countries with poor infrastructure and health facilities can follow a uniform law.

We need to see that commercialisation of surrogacy should not result in the exploitation of surrogate mothers and in that regard, the author also welcomes India's approach to tackling this by banning intended parents from a foreign land to complete a surrogacy in India through Surrogacy Regulation Bill,2019. This piece of writing will not be complete without discussing the new Surrogacy Regulation Bill,2020 which has widened the scope of being a surrogate mother as it says, any woman willing to be a surrogate mother can be a surrogate mother. This bill would largely benefit divorced women along with widows apart from infertile Indian couples. It does not address the rights of parenthood and adoption for LGBTQI+ couples. The author is optimistic about based on a change and recognising the surrogacy rights of LGBTQI+ in days to come worldwide.