Surrogacy...Is it your right??

Jeremy Bentham looked upon ‘law’ as an instrument for securing the “greatest good of the greatest number”. This project seeks to address one such question with regard to the issue of surrogacy in India and, in the process, analyzes its various dimensions in order to ascertain the basis which makes it imperative for the legislature to pass a law to explicitly address the issue. In its quest, the project endorses the need for legalization of surrogacy from the perspective of positive fundamental right of procreation guaranteed under Article 21 of the Indian Constitution and the compelling state interest in maintaining the ‘rule of law’.

 The world's second and India's first IVF (in vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata on October 3, 1978 about two months after the world's first IVF boy, Louise Joy Brown born in Great Britain on July 25, 1978. Since then the field of assisted reproductive technology (ART) has developed apace. The growth in the ART methods is recognition of the fact that infertility as a medical condition is a huge impediment in the overall wellbeing of couples and cannot be overlooked especially in a patriarchal society like 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. The problem however arises when the parents are unable to construct the child through the conventional biological means. Infertility is seen as a major problem as kinship and family ties are dependent on progeny. Herein surrogacy comes as a supreme savior.

 SURROGACY

The word ‘surrogate’ has its origin from a Latin word ‘surrogatus’, meaning a substitute, that is, a person appointed to act in the place of another. Hence a surrogate mother is a woman who carries a child on behalf of another woman, either from her ovum or from the implantation in her womb of a fertilized egg from other woman.

Black’s Law Dictionary, defines surrogacy as the process of carrying and delivering a child for another person. The Britannica defines ‘surrogate motherhood’ as the practice in which a woman bears a child for a couple unable to produce children in the usual way. The Report of the Committee of Inquiry into Human Fertilization and Embryology or the Warnock Report (1984) termed surrogacy as the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth.

            A standard definition of ‘surrogacy’ is offered by the American Law Reports[1] 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.”

             According to another classification, surrogacy can be traditional, gestational and donor surrogacy. Traditional surrogacy involves the artificial insemination of the surrogate mother by using the sperm of the intended father. Gestational surrogacy, on the other hand, involves the creation of an embryo in a Petri dish and its implantation into the womb of the surrogate who carries it to the term. Lastly, in donor surrogacy there is no genetic relationship between the child and the intended parents as the surrogate is inseminated with the sperm, not of the intended father, but of an outside donor.

 RIGHT TO REPRODUCTION- A CONSTITUTIONAL RIGHT

1.      Article 16(1) of the Universal Declaration of Human Rights 1948 says, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and start a family”.

2.      The Judiciary in India has recognized the reproductive right of humans as a basic right. Vide B. K. Parthasarthi v. Government of Andhra Pradesh[2], the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as an aspect of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma[3], which characterised the right to reproduce as “one of the basic civil rights of man”.

3.      In Javed v. State of Haryana[4], though the Supreme Court upheld the two living children norm to debar a person from contesting a Panchayati Raj election it abstain from stating that the right to procreation is not a basic human right.

Now, if reproductive right gets constitutional umbrella, surrogacy which allows an   infertile couple to exercise that right also gets the same constitutional protection.

3.1. POSITION OF ARTIFICIAL REPRODUCTIVE TECHNIQUE IN UK, USA AND AUSTRALIAN LEGAL SYSTEM

In England, based on the recommendations of ‘Warnock Committee,’[5] the Surrogacy Arrangements Act, 1985 was brought in to force.[6] Under this Act surrogacy arrangements are made legal and the Act prohibits advertising and other aspects of commercial surrogacy. The Act prohibits giving or taking of money or other benefit (other than expenses reasonably incurred) in consideration of the making of the order or handing over of the child.[7] 

In the United States of America also, commercial surrogacy seems prohibited in many states. In the famous Baby M case[8], the New Jersey Supreme Court, though allowed custody to commissioning parents in the “best interest of the child”, came to the conclusion that surrogacy contract is antagonistic to public policy. It must be noted that in the US, surrogacy laws are different in different states. In USA, Gestational Surrogacy Act, 2004, deals with this aspect. The purpose of this Act is to lay down consistent standards and procedural safeguards for the protection of all parties involved in a gestational surrogacy contract in this State and to confirm the legal status of the new born as a result of these contracts. These standards and safeguards are meant to facilitate the use of this type of reproductive contract in accord with the public policy of the State. Later Johnson v. Calvert[9], the American judiciary took a libertarian approach. Through this case the Supreme Court extended constitutional umbrella to surrogacy controls and gave them a legal validity. The court held that the surrogacy contract involved free, informed and rational choice by a woman to use her body. In Surrogacy Parenting Associate v. Commonwealth of Kentucky[10],the court propounded the intension test for the determination of natural mother.

In re Marriage of John A.[11], the court held that even though the commissioning parents are not biologically related to the child, they are still her lawful parents given their initiating role as the intended parents in her conception and birth. Even after separation of married coulple who opted for artificial insemination, the husband would still continue to be the father of the of the offspring thus produced as held in another case of People v. Sorensen.[12] In Lamaritata v. Lucas[13] the court held, a person who gives sperm for a woman to conceive a child by artificial insemination is not a parent. Thus, the sperm donor has no legal rights.

As to the statutory response, different states of America have responded through legislation to the question of legalization of surrogacy. Some states[14] took a liberal approach and some totally shun their eyes towards the validity of surrogacy contracts making them completely illegal[15]. Surrogacy legislation in New Hampshire requires judicial preauthorization of all surrogacy contracts subject to three conditions viz. informed consent by parties, completion of psychological counseling and evaluation, absence of unconscionable terms in the contract and orientation towards best interests of child.

In Australia, Kirkman sisters’ case[16] sparked much community and legal debate and soon states in Australia attempted to settle the legal complications in surrogacy. Now in Australia, commercial surrogacy is illegal, contracts in relation to surrogacy arrangement is unenforceable and any payment for soliciting a surrogacy arrangement is illegal. 

 LEGALIZATION OF SURROGACY IN INDIA

In Kolkata, litigation for legal custody of the first child born through surrogacy agreement has already commenced. [17]As costs of medical treatment are low in India, it is proving to be an attractive hub for foreigners to procure benefits of medical tourism; especially surrogacy[18]. Commercial surrogacy is emerging and doctors and surrogate mothers are engaging into profiteering as evident from numerous newspapers accounts of surrogate women citing money as the main reason for engaging in such arrangements. Women are being compelled by their in-laws to engage in this emerging “business” and the not-so distant dreams of a high standard of living, luxuries and a secure future for their children are driving women to make money through surrogacy.[19] The status-conscious lower middle class is resorting to surrogacy for fulfilling its material and financial needs.

4.1. LAW COMMISSION REPORT

To legalize surrogacy, The Law Commission of India has submitted the 228th Report on “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights and Obligations of Parties to a Surrogacy.” The following observations had been made by the Law Commission[20]:

·         Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. However, such an arrangement should not be for commercial purposes.

·         A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

·         A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

·         One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

·         Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

·         The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

·         Right to privacy of donor as well as surrogate mother should be protected.

·         Sex-selective surrogacy should be prohibited.

·         Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation.

4.2. FORM OF SURROGACY

Now the question arises that what form of surrogacy should be adopted? The most appropriate choice is non-commercial surrogacy as its kin commercial surrogacy which converts surrogacy into a business activity seemingly falls foul of Article 23 of the Constitution of India[21] and Section 23 of The word ‘traffic’ connotes an element of trade i.e. buying and selling and commercial surrogacy being equivalent to baby selling certainly involves traffic in children. In contrast, non-commercial surrogacy agreements, providing only for ‘compensation’ equivalent to reasonable expenses incurred by the surrogate mother, pass the touchstone of public policy considerations under section 23 the Indian Contract Act, 1872[22]. Article 23 prohibits trafficking in human beings while Section 23 makes agreements contrary to public policy unenforceable embracing within its fold such contracts which are likely to deprave, corrupt or injure the public morality.[23]

According to the constitution, the ambit of right to life is wider than mere ‘animal existence[24]’ and goes on to include all aspects of life which make it worth living. Procreative liberty and right to reproduction have been recognized as a part of right to life[25] specifically under Article 21 of the Constitution.[26] As opposed to the negative right of freedom from State interference, Article 21 has a ‘positive’ content encompassing the quality of life and ‘the right to carry on such functions and activities as constitute the bare minimum expression of the human self.’[27] The strongest negative claim of infertile people would be the right to remain childless, without forced medical treatment or even pressure to seek treatment in the form of social ostracism or ridicule. But if the natural process of family life and reproductive activity does not result in pregnancy, the claim regarding assisted reproduction through third part intervention necessarily becomes positive obligating the State to ensure facilitation of this right through legislation. Though the State has no obligation to fund or provide facilities to the willing couples, it does have an obligation to make the legal obligations certain and protect weaker parties against exploitation.

  SUGGESTIONS AND CONCLUSION

5.1. SUGGESTIONS

• Surrogacy agreements are to be treated on par with other contracts and the principles of the Indian Contract Act 1872 and other laws will be applicable to these kinds of agreements.
• The commissioning parents or parent shall be legally bound to accept the custody of the child irrespective of any abnormality that the child may have, and the refusal to do so shall constitute an offence.
•  A surrogate mother shall relinquish all parental rights over the child. The birth certificate in respect of a baby born through surrogacy shall bear the name(s) of genetic or intended parents/parent of the baby.
• The child born to a married couple or a single person through the use of ART shall be presumed to be the legitimate child of the couple or the single person, as the case may be.
• If the commissioning couple separates or gets divorced after going for surrogacy but before the child is born, then also the child shall be considered to be the legitimate child of the couple.

5.2. CONCLUSION

Surrogacy involves conflict of various interests and has an impact on the primary unit of society viz. family. Non-intervention of law in this emotion yet complicated issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. Active legislative intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto. The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.

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[1] American Law Reports, Validity and Construction of Surrogate Parenting Agreement, 77 A.L.R. 4 70. (1989).

[2]  AIR 2000 A. P. 156

[3]  316 US 535

[4]  (2003) 8 SCC 369

[5] Report of the Committee of inquiry in to human fertilization and embryology (Chairman-Dame Mary Warnock), Her Majesty’s stationery office, 1984 

[6] The Surrogacy Arrangements Act 1985 in England is an Act to regulate certain activities in connection with arrangements made with a view to women carrying children as surrogate moth

[7] Sec. 30 of Human Fertilization and Embryology Act 1990 (UK) provides for Parental orders in favour of gamete donors.

[8]  537 A.2d 1227

[9]  5 cal.4^th 84, 19 cal.Rptr.2d 494, 851 P.2d 776

[10] 704 s.w. 2d 209(February 06,1986)

[11] 61 Cal.App.4^th 1410 (1998)

[12] 68 Cal.2d 280 (1968)

[13] So.2d 316 (2002)

[14] Kentucky, Louisiana, Nebraska, and Washington, on the other hand, have taken a less restrictive approach, passing legislation that voids only those surrogacy contracts that provide for compensation to the surrogate. In contrast, Florida, New Hampshire, and Virginia have adopted the minority approach by making them legal and enforceable but they prohibit commercial surrogacy, with an exception of expenses incurred as a result of pregnancy and childbirth.

[15] New York, North Dakota and Utah, the legislatures have taken a blanket approach, deeming all surrogacy contracts to be void and unenforceable.

[16] In Victoria, Linda Kirkman agreed to gestate the genetic child of her older sister Maggie(1988).

[17] IVF Son for a Single Father, BBC News, 4 ^th October, 2005, Available at (last visited on 24^th August 2010).

[18] Medical Tourism Booms in India, Economic Times, February 7, 2006.   

[19] Wanna Rent a Womb, Come to Anand, Times of India, February 11, 2006; See also Surrogate Mothers Lined Up in Gujarat, The Hindu, March 2, 2006; Outsourcing a Womb, Hindu Business Line, April 6, 2007.   

[20] http://lawcommissionofindia.nic.in/

[21] Article 23- Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

[22] Section 23- The consideration or object of an agreement is lawful, unless- the Court regards it as immoral, or opposed to public policy.  

[23] State of Rajasthan v. Basant Nahata AIR 2005 SC 3401.   

[24] P.Rathinam v. Union of India 1994 SCC(3)394.

[25] Skinner v. Oklahoma,316 U.S. 535 (1942).   .

[26] S.Amudha v. Chairman, Neyveli Lignite Corporation, (1991) IILLJ 234 Mad; B.K. Parathasarthi v. Government of A.P., 2000(1) ALD199.   

[27] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; C.E.R.C. v. Union of India, AIR 1995 SC 922; Kapila Hingorani v. State of Bihar (2003) 6 SCC 1; Mohini Jain v. State of Karnataka AIR 1992 SC 1858.