- 19-Apr-2025
- Healthcare and Medical Malpractice
In surrogacy arrangements, genetic disorders or medical complications may arise either during the fertilization process, the pregnancy, or at the time of the child’s birth. When such issues occur, they can pose complex ethical, legal, and medical challenges. Indian surrogacy laws, particularly the Surrogacy (Regulation) Bill, 2020, and Assisted Reproductive Technology (ART) guidelines, address the rights and responsibilities of all parties involved, ensuring the surrogate mother, the intended parents, and the child’s welfare are protected.
a. Genetic Testing and Screening:
Under the Surrogacy (Regulation) Bill, 2020, and ART guidelines, there is an emphasis on genetic screening of embryos before implantation to prevent the transmission of certain genetic disorders. This is generally done through Preimplantation Genetic Diagnosis (PGD) or Preimplantation Genetic Screening (PGS), which helps identify embryos with genetic defects. The intended parents may request genetic screening to ensure that the child does not inherit genetic conditions such as Down syndrome, cystic fibrosis, sickle cell anemia, or other hereditary disorders.
b. Responsibility for Genetic Disorders:
If a genetic disorder is discovered either during the pregnancy or after the birth of the child, the intended parents may be legally responsible for the child’s medical care, even if the genetic issue was unforeseen. However, if the genetic disorder is caused by an issue with the surrogate's egg or embryo, this might lead to a legal dispute regarding liability. In some cases, the surrogate mother may argue that she did not carry a genetic defect, and the fault lies with the intended parents’ genetic material. In such instances, clear clauses regarding genetic testing and responsibilities are crucial in the surrogacy agreement to avoid future conflicts.
a. Prenatal Screening and Consent:
Prenatal testing may reveal certain genetic disorders or birth defects during pregnancy. The intended parents and the surrogate mother must be informed and agree on the medical course of action in case of complications. The surrogacy agreement should address how to handle potential genetic issues discovered during the pregnancy, including whether termination of pregnancy is an option, if allowed under the law and based on the severity of the condition. If a genetic disorder is discovered and the surrogate mother wishes to terminate the pregnancy, the agreement must specify whether this is acceptable under the terms of the contract. In India, abortion is legally permissible only under specific conditions, including risk to the mother’s health or severe fetal abnormalities.
b. Legal Liability in Case of Genetic Complications:
Legal liability for genetic disorders can be a grey area. If the child is born with a serious genetic disorder, intended parents may find themselves legally and financially responsible for the child’s future medical care, even though the surrogate mother was the one carrying the pregnancy. However, if the genetic issue is due to the sperm or egg provided by the intended parents, the surrogate is not legally liable. This highlights the importance of clear informed consent and genetic screening in the initial stages of the surrogacy process.
c. Parental Rights:
If a genetic disorder is identified after birth, the intended parents typically retain their parental rights, as long as they are the biological parents of the child. However, legal challenges can arise if there are disputes regarding whether the genetic issue should have been disclosed earlier in the process, or if the surrogate disputes the child’s future care arrangements.
a. Health and Well-being of the Surrogate:
The Surrogacy (Regulation) Bill, 2020 mandates that the surrogate mother undergo thorough medical screening before being selected for the process. This includes screening for genetic conditions that may affect the pregnancy or the child. If a genetic disorder or complication arises that affects the surrogate’s health, she is entitled to receive appropriate medical care, including compensation for any medical expenses that may arise due to the disorder or complication.
b. Informed Consent:
It is crucial that both the surrogate mother and intended parents are fully informed about potential genetic complications before embarking on the surrogacy process. Informed consent should be obtained, ensuring that both parties understand the risks, including genetic screening, the possibility of birth defects, and the impact of any genetic condition discovered during pregnancy. The surrogacy agreement must include provisions that outline what actions will be taken if a genetic disorder is detected during the pregnancy.
Example 1: A couple undergoes surrogacy and the surrogate mother is carrying an embryo that was genetically screened before implantation. However, during the pregnancy, the surrogate mother is diagnosed with a genetic disorder that wasn’t detected during initial screening. The intended parents are legally responsible for all medical care costs, but the surrogate mother is entitled to full medical care as per her agreement. The couple and the surrogate agree to proceed with the pregnancy, knowing the child may be born with a genetic condition.
Example 2: During the pregnancy, prenatal testing reveals that the fetus has a severe genetic disorder that will likely result in a short life expectancy and serious medical complications. The surrogate mother and the intended parents agree to terminate the pregnancy as allowed under Indian law (with appropriate medical counseling). The surrogacy agreement included a clause that allows for the termination in cases of severe fetal abnormalities, and both parties agree on the course of action.
The application of surrogacy laws in the context of genetic disorders or complications is governed by a mix of legal provisions, medical screenings, and ethical considerations. The Surrogacy (Regulation) Bill, 2020 and ART guidelines aim to safeguard the surrogate mother, the intended parents, and the child by ensuring that comprehensive genetic testing is done before implantation and during pregnancy. Legal agreements play a crucial role in managing potential complications, and the best interest of the child remains the guiding principle for decision-making. Proper informed consent, clear contractual terms, and adherence to medical and ethical standards are critical in managing genetic complications in surrogacy.
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