Medico-Legal Aspects of Reproduction and Surrogacy

This important blog describes the medical, ethical and legal aspects of reproduction in the context of recent medical advances, the control of fertility and the modern treatment of childlessness due to both male and female abnormality. Legal and moral issues arising from surrogacy are also discussed, as are the rights of the fetus – with particular attention being given to abortion, injury and treatment in uterus and experimentation. Medico-legal aspects of parenting include the dilemmas consequent upon the birth of a defective child and the provision of treatment for children.

All states of India have slightly different ethical values relating to surrogate decision makers and advance directives. The commonly used names given to surrogates and their powers are state specific with some surrogates having the right to refuse medical treatment on behalf of the people who nominated them. Similarly a range of different advance directives are used across India.

Important medico-legal issues in relation to advance care planning include:

1. Whether a patient is competent to make certain decisions;

2. The legal status of written advance directives or any other statements that a patient makes about their wishes for future care;

3. The legal arrangements for formally appointing surrogate decision makers.

There is significant burden associated with the role of surrogate decision-maker. A systematic review examining how well surrogate decision-makers predicted the patient’s wishes showed that they were accurate in two thirds of the cases. It was suggested that “accuracy” may not be the only benefit which is important to patients when relying on patient-designated surrogates.

Relationships between health care providers and family members, and amongst the family members themselves, have a significant impact on those who participate in end of life decision making. An important area of potential conflict with surrogate decision-makers is in the care of critically children.

In regard to the role and use of surrogate decision-makers, there are significant differences between practices in different national health systems, based on how much focus there is on patient autonomy, the amount of formal reliance on surrogate decision-makers, and the extent to which medical predominance in decision-making is regarded as acceptable or as paternalistic. In some cultures family-centered decision-making is valued much more highly than patient autonomy.

The role of the surrogate decision-maker is to try to ensure that any decisions which are made about the patient’s care are consistent with what is known of the patient's own values and wishes, and they should adhere to any documented advance care plan. This may be difficult for family or friends who are dealing with their own impending loss. Surrogate decision-makers experience considerable stress in their role of supporting the patient. In order to perform this role they need a very supportive relationship with the health care providers caring for the patient, and adequate information.

While formal arrangements for proxy decision-making focus on named individuals who are appointed as surrogates, in practice many families make collective decisions. In some families, there can be resistance to disclosing diagnosis and prognosis to the patient, which makes advance care planning very difficult. Skilled and sensitive communication is required to deal with these conflicting perspectives, whilst at the same time ensuring that patients’ and families’ own values are respected.

Surrogacy: General Considerations & Guidelines for ART Clinics in India

1. Surrogacy by assisted conception should normally be considered only for patients for whom it would be physically or medically impossible / undesirable to carry a baby to term.

2. Payments to surrogate mothers should cover all genuine expenses associated with the pregnancy. Documentary evidence of the financial arrangement for surrogacy must be available. The ART centre should not be involved in this monetary aspect.

3. Advertisements regarding surrogacy should not be made by the ART clinic. The responsibility of finding a surrogate mother, through advertisement or otherwise, should rest with the couple, or a semen bank.

4. A surrogate mother should not be over 45 years of age. Before accepting a woman as a possible surrogate for a particular couple’s child, the ART clinic must ensure (and put on record) that the woman satisfies all the testable criteria to go through a successful full-term pregnancy.

5. A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate.

6. A prospective surrogate mother must be tested for HIV and shown to be sero-negative for this virus just before embryo transfer. She must also provide a written certificate that (a) she has not had a drug intravenously administered into her through a shared syringe, (b) she has not undergone blood transfusion; and (c) she and her husband (to the best of her/his knowledge) has had no extramarital relationship in the last six months. This is to ensure that the person would not come up with symptoms of HIV infection during the period of surrogacy. The prospective surrogate mother must also declare that she will not use drugs intravenously, and not undergo blood transfusion excepting of blood obtained through a certified blood bank.

7. No woman may act as a surrogate more than thrice in her lifetime.

8.  A child born through surrogacy must be adopted by the genetic (biological) parents unless they can establish through genetic (DNA) fingerprinting (of which the records will be maintained in the clinic) that the child is theirs.