By: Vishal Hablani
India is emerging as a hub for the International Commercial Surrogacy. Lax surrogacy laws, low costs and the huge number of women willing to become surrogate mothers have contributed in making India a preferred destination for surrogacy. However, there have been reported incidents concerning employment of unethical practices to exploit surrogate mothers and abandonment of children born out of surrogacy. The Surrogacy (Regulation) Bill, 2016 (‘the 2016 Bill’) is drawn on the lines of the 228th report of the Law Commission, which recommended for the prohibition of commercial surrogacy and allowing only ethical altruistic surrogacy to the needy Indian citizens.
A commercial surrogacy arrangement involves a contract under which a surrogate is artificially inseminated, carry a foetus to term, and relinquish parental rights over the child once born. In such arrangements, payment is made to the gestational women for her services. On the other hand, in “non-commercial” arrangements, commonly known as altruistic surrogacy, the commissioning couple doesn’t provide any consideration for a surrogate woman’s gestational service. If the 2016 Bill is passed, under the new provisions only the heterosexual couples that have been married for not less than five years and have no children can opt for surrogacy. Also, the surrogate mother would have to be some ‘close relative’ of the commissioning parents. Provisions of the 2016 Bill are being challenged as arbitrary in nature.
In this essay, I attempt to identify the status of surrogacy in India and analyse the prime reasons that incited the legislators to come up with the 2016 Bill. In Part II, I have attempted to rebut the fallacious reasoning given in support of banning commercial surrogacy. Also, I briefly outline the recommendations that must have been taken into consideration before coming up with the bill. In Part III, I sum up with my key conclusion.
WHY THE 2016 BILL WAS INTRODUCED?
The need to regulate surrogacy in India was triggered for the first time in the year 2008 when a dispute regarding dishonour of surrogacy contract was brought before the court in the Baby Manji Yamada v. U.O.I.
In the concerned case, before the baby was born to the surrogate mother, the Japanese commissioning couple divorced and the mother was no longer interested in the child. The father was also not permitted to pick up the child as the name of a legal mother was not listed on the birth certificate. When the case came before the Supreme Court, it directed to honour the contract by allowing the grandmother to take the child with her.
Following this case, commercial surrogacy was considered to be legal, even though there were no uniform laws in India requiring any prerequisites for a commercial surrogacy. However, concerns were raised regarding the safeguards which must be given to a surrogate mother.
In 2005, the Indian Ministry of Health and Family Welfare and the Indian Council of Medical Research (‘ICMR’), along with the Indian National Academy of Medical Science had published the National Guideline for Accreditation, Supervision and Regulation of ART Clinics in India with the view to regulate surrogacy in India. However, these guidelines are nonbinding because the government has not yet adopted them into law. Since 2005, ICMR is also working on The Assisted Reproductive Technology (Regulation) Bill, 2010. This bill also aims to regulate the practice of surrogacy in India, but is yet to be passed by the Indian Parliament. Presently, the 2016 Bill which aims to ban commercial surrogacy in India is supported on the following grounds:
- Surrogate mothers are perceived as victims whose lack of free choice is commissioned by wealthier parents. Opponents of surrogacy liken these arrangements to paid adoptions, prostitution, or organ sales. It is argued that it must be banned on the grounds of public policy laid down under 23 of the Indian Contract Act, as it displays women as mere “baby making machines” and children as marketable “goods”.
- Surrogacy agreements could result in “the exploitation of lower income women by turning them into ‘human breeders’ for fertile women who don’t wish to sacrifice their professional careers or endure the discomfort and inconvenience of pregnancy, but still want children who are genetically their own.”
- It is impossible to predict how the surrogate mother would feel about giving up the potential child at the end of her pregnancy, and thus, she cannot voluntarily relinquish her parental rights prior to child’s birth.
- It is also argued that surrogacy market caters to traditional racial hierarchies as many observers view the expanding market as “exploitation of poor, non-white women by their richer [white] more indulgent sisters.”
- Many incidents have been reported where the surrogate mother died while giving birth to the baby or the baby born was not healthy, and was thus abandoned by the commissioning couple.
IS BANNING COMMERCIAL SURROGACY THE ONLY OPTION?
The arguments given by the legal scholars in support of banning commercial surrogacy are fallacious, and in no way should be government’s source of power to impose its decisions arbitrarily. Commercial surrogacy must not be restricted as opposed to public policy. Morality being subjective must be analysed under a wider scope in order to maintain equilibrium between what is acceptable and unacceptable by the people at large. Banning commercial surrogacy will snatch away the right from parents to have their own child who desire to opt for surrogacy on account of necessity and just cause, which is immoral in itself. This is because the 2016 Bill doesn’t provide for any recourse available to them in case the ‘close relative’ refuses to be the surrogate mother.
Lord Patrick Devlin stated in his article Morals and the Criminal Law: “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.” In this respect the decision to legalise commercial surrogacy must be also accepted, because it catches up with time out and is in no way injurious and offensive. Public morality is being used as a shield against any act directed towards human upliftment and social change. Moral indignation is not a valid basis for overriding an individual’s rights of dignity and privacy.
Surrogacy contracts are like service contracts in which individuals enter purely for financial reasons. The underprivileged women shouldn’t be denied the freedom to contract just because their financial condition makes it more likely that they are tempted by the financial incentives offered to them. Moreover, it would be unreasonable to expect a woman to be the surrogate mother for some stranger couple without offering her any incentive.
Instead of banning commercial surrogacy, the law makers must strive towards strict enforcement of the surrogacy contracts. This can be done by applying the law objectively. Aspects like how the mother would feel about giving up the child after termination of pregnancy period must be disregarded. Moreover, if surrogacy is viewed as a contract the surrogate mother would be charged for breach of contract if she is not willing to give up the child. Strict responsibility must be placed on the commissioning parents for compensating the family members of the surrogate mother if she dies while giving birth to the baby. Also, if the baby born is unhealthy or is suffering from some kind of disease, again the parents must be held strictly liable to honour the contract. This is because it is the duty of the commissioning parents to select a healthy surrogate mother for their child.
Assuming that international commercial surrogacy is creating racial hierarchy is completely fallacious. This is because the purpose behind couples from America coming to India for medical tourism is just to reduce the cost. They in no way wish to exploit the surrogate mother on the basis of race. Moreover, it is completely the discretion of the surrogate mother if she wishes to enter into the contract. Banning commercial surrogacy will have a devastating impact on India’s medical tourism, which is one of the major sources to earn foreign income. Also, it will disrupt the business of field specialists who are expanding their business in India to tap the market opportunity. It also increases the possibility of expansion of black market for surrogacy.
In order to regulate surrogacy, the purpose for which the commissioning couple opts for surrogacy must be checked. For e.g. If a woman wants a surrogate child just because she can’t bear the inconvenience of pregnancy, permit must not be granted to her. The government must restrict this practice to just needy couples. A bar must be placed on the number of times a woman can become a surrogate mother, and also on the time period between two successive surrogacies to keep a check on health.
Government’s attempt to intervene through the 2016 Bill is not at all justified. In a country like India, which has lax surrogacy laws, it is the primary duty of the government to safeguard the interests of the surrogate mothers against the unethical practices of their exploitation. However, this doesn’t give the government justification to impose arbitrary laws on its people. The practice of commercial surrogacy is needed to be regulated. Banning it completely is not a viable option, as the negative impacts outweigh the presumed benefits.
 Izabela Jargilo, ‘Regulating the Trade of Commercial Surrogacy in India’ (2016) 15 J Int’l Bus & L 337 .
 Tina Lin, ‘Born Lost: Stateless Children in International Surrogacy Arrangements’ (2013) 21 Cardozo J Int’l Comp L (2013).
 Press Information Bureau, ‘Cabinet approves introduction of the “Surrogacy (Regulation) Bill, 2016’ (Press Information Bureau, 24 August 2016) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=149186> accessed 26 July 2017.
 Law Commission of India, Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy, Report No 228 5 (August 2009).
 Jennifer Rimm, ‘Booming Baby Business: Regulating Commercial Surrogacy in India’ (2009) 30 U Pa J Int’l L 1429 .
 Amy M Larkey, ‘Redefining Motherhood: Determining Legal Maternity in Gestational Surrogacy Contracts’ (2003) 51 Drake Law Review.
 Dr Aneesh V Pillai, ‘The Surrogacy (Regulation) Bill, 2016: A Critical Appraisal’ (Live Law, 22 January 2017) <http://www.livelaw.in/surrogacy-regulation-bill-2016-critical-appraisal/> (accessed 26 July 2017)
 Baby Manji Yamada v Union of India and Another (2008) 13 SCC 518.
 Sugato Mukherjee, ‘Legal and Ethical Issues of Commercial Surrogacy in India: An Overview’ (academia.edu) <http://www.academia.edu/1955503/LEGAL_AND_ETHICAL_ISSUES_OF_COMMERCIAL_SURROGACY_IN_INDIA_AN_OVERVIEW> accessed 27 July 2017.
 ibid (n 1) 342.
 The Tribune, ‘Unregulated Surrogacy: Law Yet to Deliver’ (The Tribune, 24 June 2015) <http://www.tribuneindia.com/news/comment/unregulated-surrogacy-law-yet-to-deliver/97741.html> accessed 27 July 2017.
 Norma Juliet Wikler, ‘Society’s Response to the New Reproductive Technologies: The Feminist Perspective’ (1986) 59 California Law Review 1043.
 ibid (n 5) 1443.
 Yvonne M Warlen, ‘The Renting of the Womb: An Analysis of Gestational Surrogacy Contracts Under Missouri Contract Law’ (1994) 62 UMKC Law Review 583, 583-84 .
 Molly J Walker Wilson, ‘Pre-Commitment in Free-Market Procreation: Surrogacy, Commissioned Adoption, and Limits on Human Decision-Makin7g Capacity’ (2005) 31 J LEGIs 329 .
 Margaret Ryznar, ‘International Commercial Surrogacy and its Parties’ (2010) 43 Marshall Law Review 1009, 1029 .
 Babu Sarkar, ‘Commercial Surrogacy: Is it morally and ethically acceptable in India?’ (2011) PL December S-11.
 ibid (n 5) 1450.
 ibid (n 1) 359.
(Vishal is currently a student at West Bengal University of Juridical Sciences, Kolkata.)