surrogacy laws and operation
There has been lots of debates and discussion going on with regards to the issues of the legitimacy of surrogacy in various countries. It is rather a tumultuous point of law as there are only a handful of nations recognizing it and there is also a lack of uniformity in the principles being followed in these nations with respect to the phenomenon of surrogate birth.[1] The united Kingdom was the first country to enact the legislation, It passed the Surrogacy Arrangements Act in 1985 whose main aim was to abolish commercial surrogacy[2]. The relevant sections and provisions of Human Fertilization and Embryology Act, 2000 states that any commissioning parents is legally considered to be the legal parents provided if the commissioning parents are genetically related to each other[3]. The very first instance of surrogacy was captured in 1986 in the case of Baby M , In re [4] where the supreme court of New Jersey defined the custody of the child and answered the question raised upon the motherhood stating that the surrogate mother who conceived the child via artificial insemination has visitation right only and the natural father was awarded custody of Baby M but the rights of adopted mother was denied.[5] Further this decision of the court acted as a guideline for other cases and prohibited the process of surrogacy in the state unless and until any lady voluntarily willingly accepts for the process of surrogacy without any payment. As per the laws of Florida it has been explicitly mentioned that both gestation and traditional form of surrogacy agreements are allowed under its ambit and it is no more restricted to the married heterosexual couples only.[6] Virginia and Washington allow uncompensated surrogacy arrangements but deems illegal and unenforceable any agreement involving any payment to the surrogate mother other than medical and legal expenses.[7] California is generally accepting of surrogacy agreements, particularly when the couple seeking surrogacy has contributed some of the genetic material. Therefore, California’s policy on surrogacy is based on genetics.[8]
The Australian Capital Territory has the most liberal surrogacy laws among all Australian States.[9] The Canadian law prohibits for the commercial surrogacy as per given by the 2004 Assisted Human Reproduction Act though it permits for the Altruistic surrogacy . In the province of Quebec, any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.[10] In March 2008, the Science Council of Japan proposed a ban on surrogacy and said that doctors, agents and their clients should be punished for commercial surrogacy arrangements.[11]
Commercial surrogacy in India
“Childless Asian and British couples are rushing to Anand in Gujarat as the city famous for its thriving dairy industry is fast becoming a hub for outsourcing surrogacy.”[12] – — Indian Express Report, 10-12-2007.
“The commissioning parents pay anything between Rs 40-45 lakhs for a surrogate baby, but these women get barely Rs 2-3 lakhs.”[13] – Ranjana Kumari, Director of CSR
“If this was really as bad as they (the Government) have made it out to be, then you wouldn’t find so many of us here. Some of us are here for the second time. The option of carrying a child inside me to give joy to another woman and improve my own financial situation has empowered me.”[14] — Manisha, aged 36, a surrogate expecting twins
All of these statements highlights the situation how India evolved as a hub of commercial surrogacy , the second statement somehow tries to prove that due to the weak links in the regulatory framework and loopholes is the reason behind the exploitation of the surrogates in India, the surrogates are only paid somewhat around 5-10% of amount from the commissioning parents and the third statements shows A perceived reaction to that abuse as disproportionate. The death of Pramila Vaghela, a surrogate mother who died in an Ahmedabad hospital recently after delivering a surrogate baby generated little public attention.[15] Whereas just a few months ago, news reports celebrated the “blessing” and “miracle of science” that made the birth of Aamir Khan’s baby possible.[16] India is fast becoming the surrogacy capital of the world; commercial surrogacy already having become a multi-million US dollar industry and estimated to generate USD 2.3 billion per year by 2012.[17] India was given the tag of the market for commercial surrogacy or fertility market for the tourist who wanted to hire any surrogate which estimated somewhere to be around Rs 25000 in todays date. In the case of Baby Manji Yamada[18] the supreme court opined that “commercial surrogacy” reaching “industry proportions is sometimes referred to by the emotionally charged and potentially offensive terms like wombs for rent, outsourced pregnancies or baby farms”[19]. Surrogacy in India is neither illegitimate not prohibitory as no laws in India absolutely discards it nor permits it. However the modern laws ushers upon the new concept of “rent a womb law” or commercial surrogacy law as legalized in India in 2002. Couples from all over the world flock this place in the hope of realizing their dreams of parenthood through an easily affordable surrogate mother.[20] Proliferation of commercial surrogacy arrangements is fuelled by lack of legal framework on the subject, abundant supply of cheap surrogate services[21]. In India, a typical surrogacy process costs about USD 25-30,000 which is around one third of that in developed countries.[22] In 2005, the Indian Council of Medical Research (ICMR) issued guidelines to check the use of Assisted Reproductive Technology (ART)[23]. But these guidelines are silent on many major issues and therefore, “exploitation, extortion and ethical abuses in surrogacy trafficking are rampant, go undeterred and surrogate mothers are misused with impunity”.[24] In the case of Jan Balaz v. Anand Municipality[25] the question before the court of law was whether a child born in India from a surrogate mote would be recognized as an Indian national where in the gesatational mother is an Indian and the biological father is a foreign nationalist in such a case will the child get the citizenship of India. The court in this case due to the absence of legislative principles governing the cases of surrogacy concluded that neither the genetic mother nor the wife of the biological father would be considered as a natural mother. This decision threw a new angle to the Indian legislation making the terms of surrogacy more difficult to understand , court had completely ignored the terms of a contractual relationship between the commissioning parents and the surrogate mother , stressing on the fact that the child was delivered by the surrogate and still would have the rights as same as a biological child with regards to inheritance and successions. Further the decision was appealed before the Apex court and it was ordered to frame the issues reffering to the matter of concern that is legality of commercial surrogacy which needs to through the test of Article 21 of the Indian constitution upon the grounds of violation . (a) the dignity of Indian womanhood, (b) commoditisation of human life due to importation of human embryo, secondly, the Constitution under Article 23 for trafficking in human beings and whether renting of womb was involved; thirdly the Indian Contract Act under Section 23 prohibiting immoral and anti-public policy acts, and fourthly violation of human rights of the child as the same would face psychological and emotional problems. Besides the Court posed issues regarding determination of the motherhood amongst genetic, gestational and commissioning parents[26]. However, it is important to juxtapose the same with right to privacy under Article 21 of the Constitution which was held by the Apex Court in R. Rajagopal v. State of T.N.[27] the court opined that it is necessary to repect the privacy of the surrogates relating to their marriage, motherhood, procreation , child rearing etc. However, whether reproductive choices of a person are part of right to life and personal liberty is still a matter that has not been adjudicated by the Apex Court. Furthermore, women in India have been earning healthy livelihood by gestating (many consider the same to be form of physical labour), which further complicates the analysis under the article, since right to livelihood is also considered to be a part of Article 21.[28]
Commercial surrogacy is not only an issue of money and merits , it also does deals with ethics and morality. Yet , it’s become a fundamental reality in the society. The ethical and moral problems aren’t going to be resolved quickly, so it’s important to consider how the legal framework should handle things like “share a womb.” Unfortunately the regulatory bill introduced by the policy makers suffers from lots of irregularities and loopholes and these irregularities were apparently seen in the drafted bill of Assisted Reproductive Technologies (Regulation) Bill, 2010 which opens up the gate for number of criticism . This has made the current form of the Bill insufficient to adequately protect the interests of surrogate mothers; however, a mechanism can be developed to minimize exploitative practices.
Transnational commercial surrogacy and Ethical Issues
Supporters of surrogacy arrangements, such as Richard Posner, premise their argument on the fact that it is an exercise in procreative choice, economic autonomy and a woman’s freedom to contract.[29] This method of outsourcing pregnancy through a rented womb was a sensational as well as a controversial topic that pulled questions upon its legality as well as ethnicity. This trade’s business volume is estimated to be around $500 million and the numbers of cases of surrogacy are believed to be increasing at galloping rate in India.[30]
Further under the ART bill of 2020 the surrogacy agreements were legally considered to be surrogacy contracts , which was deemed to be recognized under the ambit of the Indian contracts Acts, 1872 but on the other side it was also argued that such a contract is prohibited under the ambit of Indian contracts Act 1872 as the very nature of the contract was against public policy which includes public morality and conscience. However section 23 of the Indian contracts Act explicitly states that :-
What consideration and objects are lawful, and what not.—The consideration or object of an agreement is lawful, unless— —The consideration or object of an agreement is lawful, unless—” it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.[31] In all of these cases the object and the consideration of the agreement is deemed to be unlawful and hence every agreement wherein the purpose / object or the considered is unlawful automatically the agreement to becomes void.
In the honor of the section 23 of the Indian Contracts Act 1872 it has been argued by the people that the very purpose of commercial surrogacy is immoral as due to the reason of renting of the womb which raise questions upon “motherhood” as well as the involvement of giving up the material rights and the selling of babies for money and henceforth surrogacy must be banned.
But this area of matter remains a grey arena of matter and due to this reason every society , every country all around the world have a different thinking about it differ approach towards this concept and therefore have responded in a different way all around the world. Almost all the developing countries around the world have given a thumps up to the idea of commercial surrogacy , such as countries like Argentina, South Africa have legalized commercial surrogacy in their countries but the matter of surrogacy differs from case by case, it is reviewed based upon the ethnic committee . Severing a woman’s tie with a child by contract as in case of surrogate agreements dismisses bonds between the surrogate and child that can be created by pregnancy.[32]
When Child bearing or the act of pregnancy is modified and served through the process of commercial surrogacy motherhood necessarily tends to commoditization. More over there are number of cases where there has been instances that the mother does not desires to do so but due the reason of money she forces herself to do so. This however concludes that treating human life like any other commodity and surrogacy contracts as contracts for the sale of goods, which is not desirable and morally as well as ethically also not acceptable.[33]
At the same time it has been universally acknowledged that It is also universally accepted at the same time that morality varies from time to time, and from place to place. It’s not moral, but it represents society’s will and can therefore only be modified by society’s will. There is no point in arguing for or against the moral codes of established cultures. Society is quite arbitrary in deciding its moral codes. Change should be attempted only through delicate moves and by consent.[34] Our very own law and morality obviously prohibits unnatural activities but morality must concern with people living together and promoting peace and harmony in their communities, societies and countries. Unlike most types of actions, however, a reason is required to breach these prohibitions so as not to behave immorally. Only when the cumulative direct and indirect results would be greater is it acceptable to breach moral rules. Public morality must therefore accept surrogacy because it offers endless barren mothers the opportunity to enjoy motherhood.
That’s where Lord Partrick Devlin rightfully mentioned in his article “Morals and the Criminal Law” that “No act of immorality should be made a criminal offence unless it is accompanied by some other feature such as indecency, corruption or exploitation … It is not the duty of law to concern itself with immorality as such … it should confine itself to those activities which offend against public order and decency or expose the ordinary citizen to what is offensive and injurious”[35]. With regards to this contention the move towards legalizing commercial surrogacy must be welcomed as the decision with respect to commercial surrogacy leads to no negativity and detrimental in a way but rather works for the upliftment for the society and anything that helps in the upliftment in the society and brings about a change in the society must not be covered under the shield of morality and the policies of ethnicity. However strong the moral indignation is not a valid basis for violating the fundamental rights of dignity and privacy of individuals. Constitutional morality in our culture will outweigh the public morality claim, even if it is the majority view. Though ethically and morally it is considered that commercial surrogacy must be banned but if we go through the pure facts and statistical analysis it will show that in a world plagued by abject poverty, how will the government body ensure that people don’t consent to surrogacy just to eat two square meals a day? On the other hand when it comes to the question of legal recognition it is a controversial question that riggers women’s right to make decision about their bodies as well as procreation as guaranteed under Article 21 of the Indian constitution So, it is better to give legality to this concept of surrogate contract because “prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational[36]. So, in the end, such legalization would create opportunities for poor women to earn a better living.
Conclusion and Suggestive Model for Commercial Surrogacy
The Government’s proposed model would cause further damage to the aspirations of countless couples apart from surrogate livelihoods. It would be very difficult for couples to find relatives, especially with breaking down traditional family ties and the rise of nuclear families, to find someone willing to make such an undertaking. Therefore, a model (adopting some of practices followed in Israel and some from the Ukrainian law) suggested by scholar Victoria Guzman for US to adopt, seems to be suitable for India as well[37]. At this point of time it is very important to form a proper legitimate committee that would help in screening , reviewing and approving the terms and condition of a surrogate contract between the commission parents and the surrogate. he committee could oversee adequate legal representation from both sides, and ascertain that all potential issues that may crop up during the entire procedure.[38] This model would help in stopping the unwanted exploitations of the surrogates and fundamentally would bring about a change in the society pertaining to psychological and sociological change in the minds of the people that stresses upon the factor that such form of labor does not amounts to engaging in some body selling activity.
However following points should be taken into consideration while legislating a bill for surrogacy –
- The surrogacy agreement should mention the clause pertaining to the financial support provided to the surrogate mother.
- All of the surrogacy cases leading to the termination of pregnancy must be governed by the Medical Termination of Pregnancy Act, 1971.
- The terms as such legal guardian as well as the rights and duties of the legal guardians must be properly defined in the bill.
- To govern all such matters a special court or a bench of legal authorities must be appointed to deal with such matters.
[1] Reetu and Basabdutta, “Surrogate Birth”, AIR 2009 Jour 108.
[2] Peter de Cruz, Nutshells: Medical Law (2nd Edn., Sweet and Maxwell Publications, London 2005) 168.
[3] Julie McCandless* and Sally Sheldon , 2010. ‘The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Form’. Modern Law Review 73(2) 175-207
[4] 537 A 2d 1227 : 109 NJ 396 (New Jersey, 2-3-1988)
[5] <http://www.answers.com/surrogate-mother> last accessed 10/03/2020
[6] https://surrogate.com/surrogacy-by-state/florida-surrogacy/florida-surrogacy-laws/ last accessed 10/03/2020
[7] Uniform Parentage Act, 2000, Section 803.
[8] Hari Dev Kohli, Law and Illegitimate Child (Anmol Publishers, New Delhi 2003) 55.
[9] Artificial Conception Amendment Act, 2000, Gazette on 28-9-2000.
[10] Civil Code of Québec, 1991, C. 64, Article 541.
[11] <http://www.japantoday.com/jp/news/430424> last accessed 10/03/2020
[12] “Anand in Gujarat Surrogacy Hub for Childless Brits” Express India, 10-12-2007 http://expressindia.indianexpress.com/karnatakapoll08/story_page.php?id=248727 last accessed 10/03/2020.
[13] “As India emerges as a hub for surrogacy, surrogate mothers are underpaid and uncared for” DNA, 17-7-2013 http://www.dnaindia.com/india/report-as-india-emerges-as-a-hub-for-surrogacy-surrogate-mothers-are-underpaid-and-uncared-for-1862252 last accessed 10/03/2020.
[14] “Aditi Raja, Surrogacy (Regulation) Bill, 2016: Money, jobs frame another side of debate” Indian Express http://indianexpress.com/article/india/india-news-india/surrogacy-regulation-bill-2016-money-jobs-frame-another-side-of-debate/ last accessed 10/03/2020
[15] R. Smitha, Pramila’s Family claims yet to get contract money, DNA India, 26-5-2012, http://newindianexpress.com/editorials/Article542128.ece.
[16] Shara Ashraf & Navdeep Kaur Marwah, Hindustan Times. 6-12-2011, http://www.hindustantimes.com/Entertainment/Bollywood/Aamir-Khan-flooded-with-queries-on-IVF-surrogacy/Article1-778618.aspx.
[17] Jason Burke, India’s surrogate mothers face new rules to restrict “pot of gold”. The Guardian, 30-7-2010, available at http://www.guardian.co.uk/world/2010./jul30/india-surrogate-mothers-law.
[18] Baby Manji Yamada v. Union of India, (2008) 13 SCC 518, 523, para 13.
[19] Ibid.
[20] Sreeja Jaiswal, Commercial Surrogacy in India: Assessment of Existing Legal Scenario from the Perspective of Women’s Autonomy and Reproductive Rights, 16 Gender. Tech. & Dev. 1, 2 (2012).
[21] Sreeja Jaiswal, Commercial Surrogacy in India: Assessment of Existing Legal Scenario from the Perspective of Women’s Autonomy and Reproductive Rights, 16 Gender. Tech. & Dev. at 2.
[22] Law Commission of India, Report No. 228. Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to A Surrogacy (2009).
[23] National Guidelines for Accrediation, Supervision and Regulation of ART Clinics in India.
[24] Kshitij Bansal, “The Legality of Surrogacy, Legal News and Views” Vol. 25, No. 3, March 2011.
[25] Jan Balaz v. Anand Municipality 2009 SCC OnLine Guj 10446 : AIR 2010 Guj 21
[26] Union of India v. Jan Balaz, Civil Appeal No. 8714 of 2010, order dated 14-10-2015 (SC)
[27] R. Rajagopal v. State of T.N. (1994) 6 SCC 632
[28] Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545.
[29] Richard Posner, Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J. Contemp. Health L. & Poly, 21, 24 (1989).
[30] <http://www.merinews.com/catFull.jsp?articleID=136421> last accessed 10/03/2020
[31] Section 23 of the Indian contracts Act
[32] Babu Sarkar, Commercial Surrogacy: Is it Morally and Ethically Acceptable in India? (2011) PL December S-11
[33] Ibid.
[34] The Sunday Statesman, Kolkata, 5-7-2009, 6
[35] R.M. Dworkin (Ed.), The Philosophy of Law (Oxford University Press) 68
[36] The Hindu, Kolkata, Monday, 10-8-2009, 13
[37] Victoria R. Guzman, “A comparison of surrogacy laws of the US to other countries: Should there be a uniform Federal Law permitting commercial surrogacy” 38 Hous J Int’l L 619 at p. 645-49 (2016).
[38] Ibid.
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