Open Access Research Article
SURROGACY: LEGAL AND ETHICAL ISSUES
Published Paper
Article Details
SURROGACY: LEGAL AND ETHICAL ISSUES
Authored By
- DAYA SHANKAR TIWARI
Ph.D.
Research Scholar
Department
of Legal Studies and Research
Barkatullah
University Bhopal
Email: daya.tiwari9@gmail.com
Contact No.
: +91-70 672 629 44
ABSTRACT
The desire of the infertile couple to have a child of their own has led
to the concept of surrogacy. Surrogacy is an arrangement where a woman who is,
or is to become, pregnant agrees permanently to surrender the child (ren) born
of that pregnancy to another person or couple (the desired parents). It involves conflict of various interests and
would have an inscrutable impact on the primary unit of society viz. family. The present paper focuses particularly on the
surrogate, while also discussing some issues relating to children born as a
result of such arrangements. The author of the present paper will also try to
find out the various issues (legal and ethical) involved in surrogacy contracts
in the light of various judicial pronouncements. The paper would also be an
analysis of the currently existing legal framework for surrogacy in India. In
the end, the author will also give some suggestions in order to regulate the
market of surrogacy both at the domestic and international levels.
Keywords- Surrogacy, ethical, infertile, legislation, couple
1. INTRODUCTION
The desire of infertile couple to
have a child of their own has inter alia led to the concept of surrogacy. It
has its own welcomes and flip side. It has given rise to many legal and ethical
issues. These issues vary from jurisdiction to jurisdiction. In this research
paper an attempt is made to analyze the legal and ethical issues surrounding
surrogacy in some foreign jurisdiction and India.
“The word surrogate is derived from a
Latin word “surrogatus” which means substitute.”[1] It
implies an arrangement where a woman who is, or is to become, pregnant agrees
permanently to surrender the child (ren) born of that pregnancy to another
person or couple (the desire parents).
“Surrogacy is an
“arrangement in which a woman agrees to a pregnancy, achieved through assisted
reproductive technology, in which neither of the gametes belong to her or her
husband, with the intention of carrying it to term and handing over the child
to the person or persons for whom she is acting as surrogate; and a „surrogate
mother? is a woman who agrees to have an embryo generated from the sperm of a
man who is not her husband, and the Oocyte for another woman implanted in her
to carry the pregnancy to full term and deliver the child to its biological
parents(s)”[2]
“Surrogacy’ has also been
defined in the following manner: a contractual undertaking whereby the natural or surrogate
mother, for a fee, agrees to conceive a child through artificial insemination
with the sperm of the natural father, to bear and deliver the child to the
natural father, and to terminate all of her parental rights subsequent to the
child's birth.”[3]
1.2 Types
of Surrogacy
As per the Supreme Court judgment of Baby
Manji Yamda vs Union of India & other[4],
surrogacy can be categorized in the following types:
1) “Traditional
surrogacy is an arrangement where the surrogate is pregnant with her own
biological child, but this child was conceived with the intention of relinquishing
the child to be raised by others; by the biological father and possibly his
spouse or partner, either male or female. The child may be conceived via home
artificial insemination using fresh or frozen sperm or impregnated via IUI (Intrauterine
Insemination), or ICI (Intra Cervical Insemination) which is performed at a
fertility clinic.
2) Gestational Surrogacy is an
arrangement where the surrogate becomes pregnant via embryo transfer with a
child of which she is not biological mother. She may have made an arrangement
to relinquish it to the biological mother or father to rise, or to a parent who
is themselves unrelated to the child (e.g. because the child was conceived
using egg donation, sperm donation or is the result of a donated embryo). The
surrogate mother may call the gestational carrier.
3) Altruistic
surrogacy is an arrangement where the surrogate receives no financial reward
for her pregnancy or the relinquishment of the child (although usually all
expenses related to the pregnancy and birth are paid by the intended parents
such as medical expenses, maternity clothing, and other related expenses).
4) Commercial
surrogacy is an arrangement where which a gestational carrier is paid to carry
a child to maturity in her womb and is usually resorted to by well off
infertile couples who can afford the cost involved or people who save and
borrow in order to complete their dream of being parents. This medical
procedure is legal in several countries including in India where due to
excellent medical infrastructure, high international demand and ready
availability of poor surrogates it is reaching industry proportions. Commercial
surrogacy is sometimes referred to by the emotionally charged and potentially
offensive terms "wombs for rent", "outsourced pregnancies” or
baby farms.”[5]
1.3 Surrogacy Contract
India at present has no specific
legislation for regulating the business of surrogacy. It is governed by the
contract entered between the surrogate mother and intended parents. As
contemplated in the Indian Contract Act 1872, all agreements are contracts, if
they are made by free consent of parties competent to contract, for a lawful
consideration and with a lawful object unless they are expressly declared to be
void.[6] “A
surrogacy agreement that satisfies the above conditions is an enforceable
contract and hence, it can be the subject of a civil suit before a civil court
for adjudication of all disputes relating to the surrogacy agreement and for a
declaration / injunction as to the relief prayed for.[7] It
is obvious from the above provision that the surrogate mother and the
commissioning parents must have attained the age of majority according to the
law to which they are subject and be of sound mind. The consent of the above
mentioned parties must be free that otherwise it vitiates the validity of the
contract rendering an option to the party whose consent is not free to rescind
the contract. Consideration may be pecuniary or otherwise. Detriment to the
surrogate mother in carrying the pregnancy to term or benefit to any individual
or commissioning parents being blessed with a child, is a valid consideration.”[8]
2. JUDICIAL RESPONSE TO SURROGACY IN INDIA
The judicial response is highly
encouraging for surrogacy contract. Commercial surrogacy has also been affirmed
by Supreme Court. As far as the legality of the concept of surrogacy is
concerned it would be pertinent to mention that Article 16.1 of the Universal Declaration of Human Rights 1948
says, inter alia, that “men and women of
full age without any limitation due to race, nationality or religion have the
right to marry and found a family”. The Judiciary in India too has
recognized the reproductive right of humans as a basic right. For instance, in B. K.
Parthasarthi v. Government of Andhra Pradesh[9] ,
the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an
individual as a facet of his “right to privacy” and agreed with the decision of
the US Supreme Court in Jack T. Skinner v. State of Oklahoma[10] ,
which characterised the right to reproduce as “one of the basic civil rights of
man”. Even in Javed v. State of Haryana[11] ,
though the Supreme Court upheld the two living children norm to debar a person
from contesting a Panchayati Raj election it refrained from stating that the
right to procreation is not a basic human right.
In Suchita Srivastava v. Chandigarh
Admn.,[12] the Supreme Court held: “There is no doubt
that a woman’s right to make reproductive choices is also a dimension of
“personal liberty” as understood under Article 21 of the Constitution of India.
It is important to recognize that reproductive choices can be exercised to
procreate as well as to abstain from procreating. The crucial consideration is
that a woman’s right to privacy, dignity and bodily integrity should be
respected. This means that there should be no restriction whatsoever on the
exercise of reproductive choices such as a woman’s right to refuse
participation in sexual activity or alternatively the insistence on use of
contraceptive methods. Furthermore, women are also free to choose birth control
methods such as undergoing sterilization procedures. Taken to their logical
conclusion, reproductive rights include a woman’s entitlement to carry a
pregnancy to its full term, to give birth and to subsequently raise children.
However, in the case of pregnant women there is also a “compelling State interest”
in protecting the life of the prospective child. Therefore, the termination of
a pregnancy is only permitted when the conditions specified in the applicable
statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can
also be viewed as reasonable restrictions that have been placed on the exercise
of reproductive choices.
Now, if reproductive
right gets constitutional protection, surrogacy which allows infertile couple
to exercise that right also gets the same constitutional protection. However,
jurisdictions in various countries have held different views regarding the
legalization of surrogacy.
Surrogacy is not new to
India. However, before Baby Manji Yamada v Union of India[13],
Indian courts had not faced a case relating to surrogacy (a quick search shows
that none are reported) and it was not an oft-discussed topic. While
prevailing, the various facets of surrogacy had not yet been so strongly
debated and examined against the Indian legal and social realities.
In Baby Manji Yamada V Union of
India[14],
Supreme Court of India has given recognition to the concept commercial
surrogacy. In this case a Japanese couple, Mr. Ikufumi Yamada and his wife Yuki
Yamada entered into a surrogacy arrangement with a woman by name Mrs. Mehta, a
resident of Anand, in the State of Gujarat. An embryo created by using the
sperm of Yamada and egg of a donor was implanted into the womb of Mrs. Mehta. As
mentioned in the agreement Mrs. Mehta for her services received a house worth
Rs. 3,25,000/- a lump sum payment of Rs. 50,000/- and a monthly payment of Rs.
5,000/- during pregnancy. There was also a clause in the agreement which states
that if the couple were to get separated, the husband (Yamada) would be
responsible for the upbringing of the child. After the implantation of the
embryo, Yamada left to Japan. Just one month before baby Manji was born, Yamada
couple got separated by a decree of divorce. Subsequently, Manji was born in a
private hospital at Ahmadabad. As Yamada's ex wife refused to go with him to
take custody of the child, he alone flew to India. But the Japanese embassy in
India refused to grant Manji a Japanese passport because of the reason that the
Japanese Civil Code does not recognize surrogacy born children and it
recognizes only a woman who has given birth to the child as the mother. Though
Manji had a biological father in the form of Yamada, the question was who
should be her mother. The woman who has given birth to her was an Indian woman
and she was only a gestational carrier. The egg donor was unidentified and she
was the biological mother who never intended to be a mother. Mrs. Yamada cannot
be considered as the intending mother because of the special clause as
mentioned above in the surrogacy agreement. There is no law in India to
regulate surrogacy. The infertility clinic where the embryo was implanted
issued a certificate stating that Yamada was the genetic father. Anand
Municipality refused to issue a birth certificate because of the rule insisting
mentioning of names of both father and mother. The hospital where Manji was
born was not prepared to hand over the custody to the genetic father.
Eventually the legal battle could witness a truce, when the Japanese Embassy
issued a one year visa to the 3 months old baby Manji. Above all the decision
is worth mentioning for the reason that commercial surrogacy received judicial
recognition. In this regard Supreme Court observed:
“Commercial surrogacy is
a form of surrogacy in which a gestational carrier is paid to carry a child to
maturity in her womb and is usually resorted to by well off infertile couples
who can afford the cost involved or people who save and borrow in order to
complete their dream of being parents. This medical procedure is legal in many
countries including in India where due to excellent medical infrastructure,
high international demand and ready availability of poor surrogates it is
reaching industry proportions. Commercial surrogacy is sometimes referred to by
the emotionally charged and potentially offensive terms 'wombs for rent,
outsourced pregnancies' or 'baby farms.”
3. LEGAL AND ETHICAL DEBATE
SURROUNDING SURROGACY
The entire construction
of law does not rest on the ethical premises. But it should be acknowledged
that certain ethical considerations cannot be divided from the sphere of law.
Surrogacy has given rise to very complex ethical issues of greater dimension. It
is inevitable for the courts and legislatures struggle with these issues to lay
down a comprehensive and sensitive legal regime pertaining to surrogacy. The
ethical issues can be discussed under the following heads.
Commodification arguments
are related to commercial surrogacy. Indeed, one of the strongest and most
emotive arguments against permitting commercial surrogacy arrangements is that
they create a market in children (result in child selling). According to this
argument, the baby or child becomes a product to be bought and sold, reducing
it to a commodity. Applying the argument to women, it is claimed that a
surrogate’s reproductive labour becomes the commodity. While commodification
and exploitation often go hand in hand, this is not necessarily always
the case. Accordingly, it might be useful to first clarify the plain English
meaning of the two terms.
According to the Oxford
Dictionary, to commodify or commoditize something is to ‘turn
[it] into or treat it as a mere commodity.’[15]
The word commodity is defined as ‘a raw material or primary
agricultural product that can be bought and sold, such as copper or
coffee’ or ‘a useful or valuable thing’.[16]
It has also been referred
to as an ‘article of trade’. [17]
The word exploit, on the other hand, has two ordinary meanings. First,
to exploit a resource means to ‘make full use of and derive benefit from [it]’.
However, exploit can also mean to ‘make use of (a situation) in a way
considered unfair or underhand’[18] or to ‘benefit unfairly from the work of
(someone), typically by overworking or underpaying them.[19]
It is the second meaning of exploit which is relevant where it concerns
surrogacy arrangements. Thus, in this context, exploitation is ‘the
action or fact of treating someone unfairly in order to benefit from their
work’.[20]
3.1
Commodification of the child
It is said that the
position of surrogacy born children are pathetically relegated to property
which can be sold and purchased in open markets. The whole biological process
of pregnancy and reproduction is regarded as baby farming or a baby
manufacturing and selling activity, wombs for lease or rent a womb. There are many
instances where a baby born with abnormalities was rejected by the
commissioning parents, like a commodity with a defect which gets rejected by a
potential customer.
3.2
Commodification of Women
Surrogacy makes women
breeder machines demeaning the mother – child relationship. “In India a woman is respected as a wife only
if she is mother of a child, so that her husband's masculinity and sexual
potency is proved and the lineage continues. Married women may be compelled by
the in-laws for economic reasons or it may be a suo-moto decision to see a
better life ahead. The supporters of surrogacy profess that surrogacy signifies
exercise of reproductive right by a woman as a part of her freedom to contract.
Consequently it promotes the constitutional right of woman to privacy and
procreation by conferring economic autonomy to her. It is true that surrogacy
upholds the constitutional right of procreation of an intending or
commissioning woman. But it is a myth that it endows economic independence to
the surrogate as surrogacy cannot be made perennial source of livelihood.”[21]
4. CONCLUSION
From the above discussion it can be
said that the right to reproduce is a fundamental right. Surrogacy is the only
way to overcome both biological and social infertility. It provides medically infertile
couples as well as socially infertile individuals who are unwilling to get
married with a chance to have a child of their own. Moreover, the purpose
behind legalization of surrogacy is to protect the surrogate’s interests as
well as those of the intended parents (infertile couple) and the baby born
after the surrogacy.
It is also asserted that not allowing
same sex parents, single parents and live in couple to enter into such
agreements may be correct when viewed from the context of the social conditions
prevalent in India. As highlighted earlier in this paper, it is necessary to
provide the right conditions for the growth and development to a child, such
conditions can only be provided in case the child is handed over to normal
heterosexual couples. There is also need to provide for a post- surrogacy
enforcement mechanism in the bill itself, especially when the parents are
foreigners.
Further proper measures should be
taken in order to protect the interest of child and the legislation should in
its truest sense positively deal with the surrogacy arrangements, so that the
interest of either party cannot be compromised.
RFERENCES
1. Legislations
1.1 India
The Assisted Reproductive Technologies (Regulation) Bill 2014
i.
Indian
Contract Act, 1872
ii.
Medical
Termination of Pregnancy Act, 1971
2. Journal
Articles
i.
Adams,
An. Marilyn, Examination of Bill Introductions during the 1987 Legislative
Sessions Relating to Surrogacy, 1988. Natl Conf State Legis.
ii.
ALLAN
Sonia Commercial Surrogate and Child: Ethical Issues, Regulatory Approaches,
and Suggestions for Change
iii.
Uniikrishnan,
C. H., ?Bill to Regulate IVF Clinics to be Tabled Soon‘, The Wall Street
Journal, September 24, 2008
iv.
Venugopal
B. S. Law And Surrogacy: A Critical Analysis Of Indian Experience Indian
Streams Research Journal, Volume-3, Issue-6, July-2013
v.
Thapa,
Jawala D, Analysing the status of the surrogate mother under The Assisted
Reproductive Technologies (Regulation) Bill, 2010 NUJS Working Paper Series
NUJS/WP/2012/01
vi.
Sharma,
Raghav An International, Moral & Legal Perspective: The Call for Legalization
of Surrogacy in India.
vii.
Surrogate
Motherhood: Ethical or Commercial report by Center for Social Research.
viii.
Rao,
Radhika, Surrogacy Law in the United States: The Outcome of Ambiva lence, in
Surrogate Motherhood: International Perspectives 23 (Rachel Cook et al. eds.,
2003)
3. List of cases
India
i.
Baby
Manji Yamada V Union of India AIR 2009 SC 84
ii.
Basheshwar
Nath v. Commissioner of Income Tax AIR 1959SC149
iii.
B.
K. Parthasarthi v. Government of Andhra Pradesh AIR 2000 A. P. 156
iv.
Jan
Balaz v Anand Municipality LPA 2151/2009, 17 November 2009 (High Court of
Gujarat, India
v.
Javed
v. State of Haryana 2003) 8 SCC 369
vi.
R
Rajagopal v. State of Tamil Nadu AIR 1995 SC 264
vii.
Suresh
Kumar Kaushal v. Naz Foundation. SLP (C) No. 15436/2009
viii.
Suchita
Srivastava v. Chandigarh Admn. (2009) 9 SCC1
ix.
X
v. - Hospital Z (1998) 8 SCC p 269
[1] Surrogacy from a feminist perspective‘ by Malini Karkal, published
in Indian Journal of Medical Science (IJME), Oct.- Dec. 1997 – 5(4), link;
http//www. Issuesinmedicalethics.org/054mi15.html. Also in Nelson Hilde
Lindemann, Nelson James Lindemann: Cutting motherhood in two: some suspicions
concerning surrogacy. In: Holmes Helen Bequaert, Purdy Laura (Eds.): Feminist
perspectives in medical ethics. New York: Hypatia Inc., 1992.
[2] The Assisted Reproductive Technologies
(Regulation) Bill-2014, Indian Council of Medical Research (ICMR), Ministry of
Health &Family Welfare, Govt. of India, pg. 4 (aa).
[3] American
Law Reports, Validity and Construction of Surrogate
Parenting Agreement, 77 A.L.R. 4 70. (1989) see also Warnock Report of the
Committee of Inquiry into Human Fertilisation and Embryology_1984 which
defined surrogacy as the practice whereby one woman carries a child for another
with the intention that the child should be handed over after birth. It implies
a contract between a woman known as surrogate mother who undertakes to conceive
and deliver a child on behalf of the intending parents styled as commissioning
parents and handover the child after delivery to the latter
[5] Supra note 4
[6] Section 10 Indian Contract Act
[7] See section 9 Civil Procedure Code
1908
[8] Venugopal B. S. Law And Surrogacy: A Critical
Analysis Of Indian Experience, Indian Streams Research Journal,
Volume-3, Issue-6, July-2013
[9] AIR 2000 A. P. 156
[10] 316 US 535
[11] (2003) 8 SCC 369
[12] (2009) 9 SCC1
[16] http://oxforddictionaries.com (last accessed
on 5 April 2022). Water is given as an example of a precious commodity
[17] The Australian Pocket Oxford
Dictionary, first Australian edition (1976).
[18] Such as, eg, a company exploiting a legal loophole, http://oxforddictionaries.com (last accessed on 10 July 2022
[19] For example, women exploited in the workplace, http://oxforddictionaries.com (last accessed
on 30 July 2022).
[20] http://oxforddictionaries.com (last accessed
on 30 July 2022). Here, the example given is the exploitation of migrant
workers.
[21] Christine L. Kerian , Surrogacy:
A Last Resort Alternative for Infertile Women or a Commodification of Women’s
Bodies and Children, 12 Wis. Women's L.J. 113 ( 1997)
Article Information
SURROGACY: LEGAL AND ETHICAL ISSUES
Authors: DAYA SHANKAR TIWARI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/28
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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