Challenging trade of forced surrogacy in Nepal

NepalNews conducted an interdisciplinary non-systematic literature review and legal analysis of existing and pending policy, laws, and regulations related to surrogacy arrangements in Nepal.

Advances in science and technology, coupled with globalization are changing access to and utilization of reproductive health services ,surrogacy is a form of third party reproduction in which a woman consents to deliver a baby for intended parents who cannot conceive for medical reasons or are queer. Though the process is medically, emotionally, financially , and legally complex, it offers an opportunity to couples who aren’t able to have children.

According to medical research , traditional/genetic surrogacy is when a surrogate is artificially impregnated with sperm, usually from the intended parent, but may also be donor sperm, with the intention of that sperm fertilizing her (the surrogate’s) egg, thereby making her both the genetic and gestational mother.

Gestational surrogacy is performed by transferring embryos made through IVF with eggs from the intended mother or a donor. It allows many intended mothers to be related to their child.

It is assumed that both traditional surrogacy and gestational surrogacy use a surrogate to carry a baby. However, in traditional surrogacy, the surrogates egg is used, making her the biological mother of the baby. But in gestational surrogacy, the surrogate has no biological tie to the baby as an egg from a donor or an intended mother is used instead.

       Dr. Krishna Khanal ,MD Resident (ob./gyn.) says that the practice was formally banned by a Cabinet decision on September 18, 2015, using the Supreme Court decision date as a cut-off. The Supreme Court’s final verdict was announced on December 12, 2016, and holds that surrogacy is legal for infertile Nepali married couples, but illegal for single men or women, transgender couples, and foreign nationals.

 According to Dr. Khanal, couples opt for surrogacy mainly because they’re incapable of doing concaving Couples are required to present solid reasons for arrangement: such as a same-sex couple wishing to have a child, a single man wishing to have a child with his sperm, a woman with health issues that makes pregnancy dangerous, or simply if a woman does not want to concave.

By the age of forty, the majority of women will likely need to use a surrogate because of fertility treatment. Some women even go through post-traumatic stress disorder, making pregnancy or birth an emotional rollercoaster. “Infertility is not only the reason couples or singles choose surrogacy, some do this for personal reasons”, says Dr. Khanal.

The laws designed for surrogacy are called surrogacy laws and are practiced under the state name as surrogacy laws Nepal. These rules may differ from state to state depending on the flow of the clients into the state. However, surrogacy legal issues in Nepal are not a strict set of rules to be followed as the rules are still in the blossoming condition, said Khanal.

“In the absence of proper legal provisions related to surrogacy, women in Nepal face exploitation through surrogacy as a means of trade, so it's hard to accept morally in Nepal” stated Khanal .

It is inappropriate that surrogacy in Nepal is closing down but there are good reasons. “Until the practices and procedures uphold clear and necessary ethical and medical protocols, surrogacy should be limited to places and countries where there is attention to best legal and ethical practices, these developments have been slow to adapt to challenges inherent to surrogacy arrangements” said Khanal.