Assignment penal code

                                   Topic of the assignment:  surrogate motherhood under       

                                                                        Islamic law

                       

                            Table of contents

1. Introduction to Surrogacy

2. Meaning of surrogate motherhood

3. Definition of surrogate motherhood 

4. Types of Surrogacy

5. History of surrogacy

6. cost of surrogacy

7. Ethical Issue

8. Religious Issue

9. Psychological  Concern

10. All About International Surrogacy

11. Surrogacy of Bangladesh.

 

Introduction to Surrogacy : 

                                                   Surrogacy is an arrangement between a woman and a couple or individual to carry and deliver a baby. It is a controversial process that is not legal in all states. The surrogate mother is also known as a gestational carrier.In many cases, the process is an expensive, time consuming, and emotional one. Women or couples who choose surrogacy often do so because they are unable to conceive due to a missing or abnormal uterus, have experienced multiple pregnancy losses, or have had multiple in vitro fertilization attempts that have failed. The advantage of gestational surrogacy to the parents is that the embryo is created from the woman's egg and the man's sperm, so it is biologically theirs.

The surrogacy arrangement is sometimes made through an agency and other times contracted privately. When searching for a surrogate mother, a couple might use the Internet, contact an agency, or network through friends and family. Surrogacy arrangements are sometimes made between strangers who never meet, or between persons who meet only occasionally through the process. A surrogacy arrangement might also involve persons whose lives become intertwined during the process, and even those who are family members or friends before entering a surrogacy arrangement.

In gestational surrogacy, the embryo is implanted in the surrogate through in vitro fertilization. The surrogate carries the baby to term, then gives up the child and signs over parental rights at birth. Usually, the couple pays legal fees, agency fees if applicable, and a fee to the carrier. If the carrier does not have health insurance that covers prenatal care and delivery, the couple would most likely pay those costs also.

Disadvantages of surrogacy include the possibility that the surrogate will change her mind about giving up the rights after birth. Some couples also worry about legal issues. There might also be differences between the couple and the carrier regarding medical, nutritional, or testing issues.

The success rate of surrogacy cannot be determined because it is dependent on many factors. The first successful gestational surrogacy took place in 1985. Other forms of surrogacy have existed since Biblical times.

The surrogacy issue was highly publicized when the "Baby M" court case was presented in New Jersey in the mid 1980s. In this custody case, the surrogate mother declared she was unable to fulfill her contract and turn over the child she carried to the intended parents. Initially, the court ruled for the intended parents and gave them custody. Later, the surrogate mother regained some parental rights and was granted parental visitation.

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Source :  http://www.sooperarticles.com/health-fitness-articles/pregnancy-articles/introduction-surrogacy-40109.html  

Meaning of surrogate motherhood :

                                                           Surrogacy is an arrangement where a woman agrees to become pregnant and deliver a child for a contracted party.  

Definition of surrogate motherhood : 

                                                            :  A relationship in which one woman bears and gives birth to a child for a person or a couple who then adopts or takes legal custody of the child; also called mothering by proxy.

In surrogate motherhood, one woman acts as a surrogate, or replacement, mother for another woman, sometimes called the intended mother, who either cannot produce fertile eggs or cannot carry a pregnancy through to birth, or term.

Surrogate mothering can be accomplished in a number of ways. Most often, the husband's sperm is implanted in the surrogate by a procedure called Artificial Insemination. In this case, the surrogate mother is both the genetic mother and the birth, or gestational mother, of the child. This method of surrogacy is sometimes called traditional surrogacy.

Less often, when the intended mother can produce fertile eggs but cannot carry a child to birth, the intended mother's egg is removed, combined with the husband's or another man's sperm in a process called in vitro fertilization (first performed in the late 1970s), and implanted in the surrogate mother. This method is called gestational surrogacy.

Surrogacy arrangements are categorized as either commercial or altruistic. In commercial surrogacy, the surrogate is paid a fee plus any expenses incurred in her pregnancy. In altruistic surrogacy, the surrogate is paid only for expenses incurred or is not paid at all.

The first recognized surrogate mother arrangement was made in 1976. Between 1976 and 1988, roughly 600 children were born in the United States to surrogate mothers. Since the late 1980s, surrogacy has been more common: between 1987 and 1992, an estimated 5,000 surrogate births occurred in the United States.

The issue of surrogate motherhood came to national attention during the 1980s, with the Baby Mcase. In 1984 a New Jersey couple, William Stern and Elizabeth Stern, contracted to pay Mary Beth Whitehead $10,000 to be artificially inseminated with William Stern's sperm and carry the resulting child to term. Whitehead decided to keep the child after it was born, refused to receive the $10,000 payment, and fled to Florida. In July 1985, the police arrested Whitehead and returned the child to the Sterns.

Source : http://legal-dictionary.thefreedictionary.com/Surrogate+Motherhood 

Types of Surrogacy :  

                                  

Traditional Surrogacy

In traditional surrogacy, the surrogate mother is artificially inseminated with the sperm of the intended father or sperm donor. The surrogate's own egg will be used, thus she will be the genetic mother of the resulting child. 

Usually, the intended father's name is put directly on the birth certificate and the intended mother will need to do a step-parent adoption, however, laws regarding this issue vary from state to state. Consult a lawyer who is knowledgeable about surrogacy laws in your state to learn more.

Gestational Surrogacy

In a gestational surrogacy, the surrogate mother is not genetically related to the child. Eggs are extracted from the intended mother or egg donor and mixed with sperm from the intended father or sperm donor in vitro. The embryos are then transferred into the surrogate's uterus. Embryos which are not transferred may be frozen and used for transfer at a later time if the first transfer does not result in pregnancy. 

In many areas, the intended parents may petition the court during the third trimester of pregnancy to have both of their names placed directly on the birth certificate, however, laws regarding this issue vary from state to state. Consult a lawyer who is knowledgeable about surrogacy laws in your state to learn more.

History of surrogacy :  

                                     Having another woman bear a child for a couple to raise, usually with the male half of the couple as the genetic father, is referred to in antiquity. Babylonian law and custom allowed this practice and infertile woman could use the practice to avoid the divorce, which would otherwise be inevitable.^[4]

One well-known example is the Biblical story of Sarah and Abraham, a nomadic Hebrew couple unable to conceive. Sarah offered her Egyptian slave Hagar as a surrogate, but later drove her away from the camp when Hagar became impudent during pregnancy. Hagar fleed to Egypt, where an angel told her that her son Ishmael would become a leader amongst the Hebrews; she subsequently returned to Sarah and Abraham. In the Quran, Abraham and Hagar settled the jealousy between the two women by moving with Ishmael to the land of Paran.

Many developments in medicine, social customs, and legal proceedings worldwide paved the way for modern commercial surrogacy:^[5]

·                    1870s: It became common practice in China for couples to pay for an adopted son. All ties to the natal family would be severed, and the child would become an heir and full member of the adopted family.

·                    1930s: In the US, pharmaceutical companies Schering-Kahlbaum and Parke-Davis started the mass production of estrogen.

·                    1944: Harvard Medical School professor John Rock broke ground by becoming the first person to fertilize human ova outside the uterus.

·                    1953: Researchers successfully performed the first cryopreservation of sperm.

·                    1971: The first commercial sperm bank opened in New York, which spurred the growth of this type of business into a highly profitable venture.

·                    1978: Louise Brown, the first test tube baby, was born in England. She was the product of the first successful in vitro fertilization procedure.

·                    1980: Michigan lawyer Noel Keane wrote the first surrogacy contract. He continued his work with surrogacy through his Infertility Center, through which he created the contract leading to the Baby M case.^[6]

·                    1985: A woman carried the first successful gestational surrogate pregnancy.

·                    1986: Melissa Stern, otherwise known as “Baby M,” is born in the US. The surrogate and biological mother, Mary Beth Whitehead, refused to cede custody of Melissa to the couple with whom she made the surrogacy agreement. The courts of New Jersey found that Mary Beth Whitehead was the child's legal mother and declared contracts for surrogate motherhood illegal and invalid. However, the court found it in the best interest of the infant to award custody of Melissa to her biological father William Stern and his wife Elizabeth Stern, rather than to the surrogate mother, Mary Beth Whitehead.

·                    1990: In California, gestational carrier Anna Johnson refused to give up the baby to intended parents Mark and Crispina Calvert. The couple sued her for custody (Calvert v. Johnson), and the court upheld their parental rights. In doing so, it legally defined the true mother as the woman who intends to create and raise a child.

·                    1994:

·                                Latin American fertility specialists convened in Chile to discuss assisted reproduction and its ethical and legal status.

·                                The Chinese Ministry of Health banned gestational surrogacy due to the legal complications of defining true parenthood and possible refusal by surrogates to relinquish a baby.

·                    2009: The Chinese government cracked down on enforcement of the gestational surrogacy ban, and Chinese women began coming forth with complaints of forced abortions.

There have been cases of clashes between surrogate mothers and genetic parents. For instance, genetic parents of the fetus may ask for an abortion when unexpected complications arise, and the surrogate mother may oppose the abortion.

cost of surrogacy In India : 

                                           Many people globally are now choosing India a destination for Surrogacy. There are many reasons like:

 Surrogacy Treatment is Economical In India

 Best Of IVF Doctor

 Easy to find Surrogate Mother In India
 Legal Aspect of Surrogacy as law are in favour of surrogacy treatment.

It is estimated that in the United States, the payment for a surrogate mother ranges between US$15,000 and $30,000, the whole procedure can cost $45,000 to $60,000+. The fees for the rest of the process- including fertility clinics; lawyers; medical fees; and agencies and/or egg donors (if they're used) generally cost more than the fee going to the surrogate. Gestational surrogacy costs more than traditional surrogacy, since more complicated medical procedures are required. Surrogates who carry a baby for a family member (i.e., sister or daughter) usually do so for expenses only.

India is foremost in surrogacy because of the low cost treatment and availability of women opting to be surrogate for childless couples. In India Surrogacy costs about $ 20,000compared to US where it is $50,000. Moreover laws in US and UK do not allow the surrogate woman to charge the childless couple; whereas in India there are no laws preventing a surrogate woman in accepting compensation for renting her womb. A childless couples offer Rs.3, 00,000 to Rs.4,00, 000 or more and sometimes even funds for education to the surrogate woman and there should be laws in India protecting not just the couple but also the woman opting to be surrogate keeping in mind the economic compensation and help that it offers to not just the illiterate women but also their families in India.

Surrogates may be relatives, friends, or previous strangers. Many surrogate arrangements are made through agencies that help match up intended parents with women who want to be surrogates for a fee. The agencies often help manage the complex medical and legal aspects involved. Surrogacy arrangements can also be made independently. In compensated surrogacies the amount a surrogate receives varies widely from almost nothing above expenses to over $30,000 Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks.

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Ethical Issue : 

                       Ethical issues that have been raised with regards to surrogacy include:

·                    To what extent should we be concerned about exploitation, COM modification, and/or coercion when women are paid to be pregnant and deliver babies, especially in cases where there are large wealth and power differentials between intended parents and surrogates?

·                    To what extent is it right for society to permit women to make contracts about the use of their bodies? To what extent is it a woman's human right to make contracts regarding the use of her body? Is contracting for surrogacy more like contracting for employment/labor, or more like contracting for prostitution, or more like contracting for slavery? Which, if any, of these kinds of contracts should be enforceable? Should the state be able to force a woman to carry out "specific performance" of her contract if that requires her to give birth to an embryo she would like to abort, or to abort an embryo she would like to carry to term?

·                    What does motherhood mean? What is the relationship between genetic motherhood, gestational motherhood, and social motherhood? Is it possible to socially or legally conceive of multiple modes of motherhood and/or the recognition of multiple mothers?

·                    Should a child born via surrogacy have the right to know the identity of any/all of the people involved in that child's conception and delivery?

Religious Issue : 

                           Different religions take different approaches to surrogacy, which often relate to their stances on assisted reproductive technology in general. See Religious Response to assisted reproductive technology for more information.

 Judaism

Jewish law states that the parents of the child are the man who gives sperm and the woman who gives birth. More recently, Jewish religious establishments have accepted surrogacy only if it is full gestational surrogacy with both intended parents' gametes included and fertilization done via in-vitro fertilization.^[12]

 Catholicism

Paragraph 2376 of the Catechism of the Catholic Church states that: "Techniques that entail the dissociation of husband and wife, by the intrusion of a person other than the couple (donation of sperm or ovum, surrogate uterus), are gravely immoral.

 

Psychological  Concern  :

                                             A study by the Family and Child Psychology Research Centre at City University, London, UK in 2002 concluded that surrogate mothers rarely had difficulty relinquishing rights to a surrogate child and that the intended mothers showed greater warmth to the child than mothers conceiving naturally.

Anthropological studies of surrogates have shown that surrogates engage in various distancing techniques throughout the surrogate pregnancy so as to ensure that they do not become emotionally attached to the baby.  Many surrogates intentionally try to foster the development of emotional attachment between the intended mother and the surrogate child.

Surrogates are generally encouraged by the agency they go through to become emotionally detached from the fetus prior to giving birth.

Instead of the popular expectation that surrogates feel traumatized after relinquishment, an overwhelming majority describe feeling empowered by their surrogacy experience.

A 2011 study from the Centre for Family Research at the University of Cambridge found that surrogacy does not have a negative impact on the surrogate's own children.

Child

A recent study (involving 32 surrogacy, 32 egg donation, and 54 natural conception families) examined the impact of surrogacy on mother–child relationships and children's psychological adjustment at age 7

All About International Surrogacy   :  

                                                           As in the United States, laws regarding surrogacy will differ in each country. Intended parents should acquire the services of a surrogacy agency before they choose to take part in international surrogacy. They must also be sure to have experienced legal counsel.

There are many different agencies that can assist individuals wishing to take part in international surrogacy. Intended parents can utilize local agencies. 

There are many ethical issues involved in international surrogacy. Intended parents must be sure that they respect the traditions and beliefs of their surrogate mother. Intended parents should be sure not to ask their surrogate mother to go against any religious or moral beliefs she has by taking part in surrogacy.

Intended parents should carefully research the country where their surrogate mother lives. By doing this, they can be more aware of what their surrogate mother’s circumstances may be and the conditions in which she lives. They will also be aware of the way that their surrogate mother will be treated by the agency they have chosen.

This is vital since intended parents will want their surrogate to be well-treated. They should be sure that she receives just compensation and has all of her needs address. By doing the appropriate research, intended parents can avoid disastrous consequences for the surrogate mother and child.

Commercialization

Surrogacy has been commercialized in many countries, including the United States. Each country has different laws regarding what is allowed or forbidden in regards to surrogacy. For instance, many countries strictly forbid compensation for surrogacy.

India

India has become an increasingly popular destination for parents seeking an international surrogate. Surrogacy is openly allowed and inexpensive. However, the Indian Government is drafting legislation regarding surrogacy. There are many issues regarding surrogacy that the Government wishes to address.

Intended parents considering hiring a surrogate from India should stay updated in case any new legislation is passed. Meanwhile, India offers many options for intended parents. There are many surrogacy agencies that offer different types of surrogacy in India. 

Ukraine 

Surrogacy in the Ukraine is also becoming a popular destination for parents seeking an international surrogate. At the moment of conception, legal custody is granted to the couple that has arranged the surrogacy. In essence, this means that they are able to make any decisions regarding the child. However, this can adversely affect the health and well-being of the surrogate mother.

While the immediate transfer of custody may be comforting for intended parents, they should be careful to not cause their surrogate mother any psychological, medical, physical, or moral harm. When asking things of their surrogate mother, they must also consider her religious beliefs. Intended parents should always look out for the interests of their surrogate mother.

Guatemala

In Guatemala, international surrogacy has been very popular. There are many reasons that Guatemala is a popular place to choose a surrogate. First, surrogacy in Guatemala is very inexpensive for intended parents. However, there is still a high standard for medical care extended to their surrogate and surrogate baby. In addition, Guatemala is located fairly close to many United States residents seeking a surrogate.

Last but certainly not least, surrogacy in Guatemala bears few restrictions. Any individual who wants to have a surrogate baby may do so in Guatemala. Many people that would be unable to use the services of a surrogate mother in the United States are able to do so in Guatemala. 

Canada

Surrogacy in Canada is very strictly regulated. Commercial surrogacy is strictly forbidden. Surrogate mothers may only be compensated for any bills associated with the pregnancy. Fines and penalties for breaking surrogacy laws are harsh.

Unfortunately, those same laws are not explicit in explaining what is and is not allowed. Surrogate mothers can never be sure what expenses can be legally covered by the intended parents. No person should take part in surrogacy in Canada without expert legal advice.

Surrogacy of Bangladesh :  

                                           Renting wombs is not unusual throughout the world, especially in neighboring India. Womb renting or surrogacy is a medical practice that allows a woman to carry and deliver a baby for another woman who is unable to have babies herself. 

A surrogate mother may be a child's genetic mother in traditional surrogacy, or may be genetically unrelated in gestational surrogacy, experts said.

If a surrogate mother receives compensation beyond the reimbursement of medical and other reasonable expenses, the arrangement is called commercial surrogacy; otherwise it is often referred to as altruistic surrogacy.

Whichever way it goes, it's still a taboo in Bangladeshi perspective, said Dr Rashida Begum, a pioneer in the field of infertility research in Bangladesh. 

Dr Rashida, who was behind the very first success in the field of test tube baby in Bangladesh said, "Religious and social sentiment still prohibits us to accept the procedure."

She opened the door of the era of test tube babies in Bangladesh in her Mohammadpur clinic known as Infertility Care & Research Centre, in 2003, and others followed in her footsteps successfully.

On July 6 this year, three test tube babies were born at a private hospital in Dhaka from frozen embryos which doctors say "rare" in Bangladesh. 

Doctors of "Bangladesh Assisted Conception Centre and Women Hospital Ltd", led by Professor Feroza Begum, brought smiles to two couples - one delivered twin baby boys after 12 years of their marriage and another couple a girl after a wait of six years. 

The experts said the first ever frozen embryo baby in the country was born on September 19, 2008, at Modern Hospital in city's Dhanmondi.

Although there is no national figure on the number of infertile couples in Bangladesh, doctors say it is increasing. They cannot pinpoint the reasons, as there is no study on it. 

Citing statistics, experts said in neighboring India, one in every 10 couples is infertile. Though actual surrogacy is not being practiced in our country, our physicians are moving ahead successfully with other similar procedures such as test tube babies. 

According to the experts, all do not need the test tube method to have a baby. Only 10 percent of all infertile couples need test tube method. 

Source : http://www1.bssnews.net/newsDetails.php?cat=0&id=279274$date=2012-09-14&dateCurrent=2012-09-15