Surrogacy Issues: Finding The Middle Ground

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Scientific advancements and increase in social acceptance for the non-traditional methods of family formation have made surrogacy both possible and popular. But they provide no answer to the complicated issues that arise when a surrogacy arrangement breaks down. The report of the committee of inquiry into Human Fertilization and Embryology, also known as Warnock Report 1984, defines surrogacy as the practice whereby one woman carries a child for another with the intention that the child should be relinquished after birth.

Surrogacy on the basis of consideration is divided as “Commercial Surrogacy” and “Altruistic surrogacy”. The latter to be understood as, where a woman agrees to bear a child as a surrogate without consideration, but on the other hand where surrogate mother is given certain amount of money as consideration, it would be construed as commercial surrogacy.

There are instances where different legislative approaches have been taken by various countries towards commercial surrogacy arrangements. However, there has not been any successful standardization of the laws governing surrogacy.  A number of legal problems and conflict of laws including the parentage, citizenships of the child and contractual issues are unaddressed in a surrogocy arrangement. Surrogacy compromises the dignity of the mother by merely treating her as a “womb for hire”. This significant economic investment has led some cases to have high academic potential or a good looking progeny. They not only contract to purchase a child but can choose to have a good looking and intelligent successor. So does this make the child a commodity?

The exploitive effects of surrogacy on surrogate mother often do not manifest themselves until after the baby is relinquished. Many women experience emotional anxiety over relinquishing the child. Few surrogates, report exploitation because in reality the contract of surrogacy is nothing but using the women as a child producing machine. In Grammy’s and many similar cases, it has been seen that once the contracting couple gets the child from the surrogate the motivation to care for the surrogate’s well-being disappears. Talking about examples of surrogacy as exploitation we can not forget an illegal surrogacy ring known as ‘Babe 101’. It was prevalent in Thailand, Vietnam, Cambodia and Taiwan where the women were forced to give surrogacy service.

According to Article 16.1 of Universal Declaration of Human Rights 1948, inter alia men and women of full age without any limitation due to race, nationality or religion have the right to marry and find a family i.e. have a reproductive right. In India, the Andhra Pradesh High court upheld the right to reproduce as “one of the basic civil rights of a man”. So surrogacy allows an infertile couple to exercise the reproductive right which is conferred by the Judiciary as a human right. However, in England by virtue of Surrogacy Agreements Act 1985, advertising and other aspects of commercial surrogacy are prohibited. In the famous Baby M  case the New Jersey Supreme Court came to the conclusion that the surrogacy contract is against public policy and according to the general principles of contract, a contract which has an object which is against public policy is void.

In India, the ART (Artificial Reproductive Technology) Bill of 2010 includes surrogacy contracts within the ambit of the Contract Act, 1872. In light of Sec 23 of Contract Act, surrogacy agreements can be argued to be immoral as they involve giving up the material rights and transfer of babies for money as a movable property or a commodity; therefore, surrogacy must be banned.

In India, according to Article 5 of the Constitution of India, a person can be called as a citizen of India, who is born in India, whose parents have been born in India, or who has lived as a resident in India for not less than 5 years. So in case of international surrogacy where there is a conflict of parentage per se, then the citizenship right of the child is hampered. Even in the famous Baby Manji Yamada’s case and the Israel gay couples’ case who father the child in India are clear examples of International Surrogacy, the claim over the child was justified and allowed by the Supreme Court of India, the right of the parentage was confirmed but the question arises, what about the right of the child? Which nation will he belong to? Whether the justification given by accepted law in India would be accepted in Japan or for that matter in Israel?

The practice of renting the womb and getting a child can be called  as outsourcing pregnancy. Attorney Noel Keane is generally recognized as the creator of the legal idea of surrogate motherhood. There are numerous cases where women are exploited for their womb. In Baby Manji Yamada case, Supreme Court observed that commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive term, such as “wombs for rent”, “outsourcing pregnancy” or “baby firm”. The case of surrogacy in France, where the child’s father is his own maternal uncle and his genetic mother is a surrogate, bewildered the international society. This is a complete mockery of the concept of marriage and the objective and societal values preached by the society in a nation like India.

Human dignity is at the core of human rights protection. According to the Universal Declaration of Human Rights,, it is the foundation of freedom, justice and peace in the world. Throughout the world there is a general policy to protect and safeguard human dignity. One of the main tenets of the human rights protection is prohibition of  human trafficking, especially of women and children. Further it also comprises, taking care of the best interests of the child, and   non-interference with the natural process of conception and birth. This is evinced by the prohibition   of  selecting sex of a baby created through IVF. Moreover, sex selection is against the very idea of public morality and if allowed, it will undermine the moral framework of the societal fabric. Keeping in mind the established issues, the concept of surrogacy should be regulated in order to restrict it from being abused. The noble concept of helping a woman who is deprived to have a child  should be supported but the exploitation to earn profit, under the cloak of surrogacy should not be.

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