The question on legality of surrogacy contract revolves around the models of Rights Jurisprudence and Regimes of State Responsibility; the former insists on the importance of institution of rights as such approach represents majority’s promise to minorities that their dignity and equality will be respected, and the latter addresses the issue of the extent of state intervention to render such contracts unenforceable and illegal.
Thus it is pertinent to analyze the issue of validity of surrogacy contracts in light of the above mentioned jurisprudential models from two perspectives; firstly, surrogacy contracts from the perspective of autonomy of surrogate mother, and secondly, surrogacy contracts from the perspective of interests of child, wherein the aim would be to make a case for adopting best interest approach while deciding on custody issue.
‘Do Surrogacy contracts amount to baby selling ’ is the most crucial question while determining the validity of such contracts in relation to the argument of autonomy of women while rendering her services in terms of child bearing. This question can be answered from two angles, firstly, surrogacy arrangements that do amount to baby selling and which can be termed as commercial surrogacy ; secondly, surrogacy arrangements that do not amount to baby selling, known as Altruistic Surrogacy .
According to critics and medical professionals, in cases of commercial surrogacy, the payment of the surrogate mother constitutes baby selling and thus is morally wrong and illegal . Such arrangements are considered to be coercive and exploitative as they require the gestational mother to give up certain legitimate moral claims in relation to her pregnancy and the child . There can be general conceptualization that the reason for surrogate mothers participating in such arrangements is economic inducement especially in less developed countries like India, where poor women consider their wombs as a source to support their livelihood . Such arrangements can be considered to be exploitative in nature as they are not only encouraging baby selling but also diminish the dignity of women’s reproductive capacities and the inherent value of the children by commodifying them .
The jurisprudential argument supportive of commercial arrangements is that in a rights based society a woman has a right to procreate and can in furtherance of that right claim monetary compensation for the gestation period from the adoptive parents. Such an argument can be justified in the light of Dworkin’s interpretation of the concept of right that an individual has a ‘right to do a wrong’ i.e. to commit mistakes and thereafter correct himself/ herself without any requirement of state intervention . However such an argument cannot stand valid in the eyes of law because commercial surrogacy arrangements are not only concerned with the rights of the surrogate mother but due consideration is also to be given to the interests of the child, who in such a case is treated as a commodity and thus his/ her value is undermined by such an approach to fulfill the desire of parenting and that his/ her value cannot be determined in terms of pecuniary limits .
Major disagreement with commercial surrogacy arrangements is the economic compulsion that forces women to become surrogate mothers, thus it can be observed that it is not her free will that encourages her but the responsibility to incur her family expenses through such work. Such arrangements can be termed as being exploitative because these women lack the bargaining power as compared to the economically well settled adoptive parents. Thus there is a need for a legal mechanism to protect these women from being exploited in a manner that economic factor is not the sole reason for entering into commercial surrogacy contracts.
In comparison with commercial surrogacy arrangements, Altruism and voluntarism emerge as moral virtues and thus many states are taking action to prohibit commercial surrogacy but are leaving the whole area of non commercial surrogate practices untouched . Altruistic surrogacy refers to surrogacy agreements in which the surrogate is not paid for her services and is motivated mainly by a desire to help an infertile couple to have a child of their own. Such form of surrogacy can be thought of as the consensual provision of a valuable service for another, and the transfer of the child is governed by the idea that its interests will be well met by transferring parental responsibility for it . There are surrogates who within the family wish to re- experience and ease of being pregnant but who do not want to raise another child by themselves. They are strongly motivated by the empathy with the infertile couple, having found the experience of having children to be very important in their own lives, and they desire to help another couple share this special experience . Such arrangements can be justified as voluntary consent of the parties is present and the interests or choices of the child are not disregarded.
Even though altruistic arrangements are non commercial in nature but in some cases, a woman can be socially forced by her family (husband, family members) or friends to act as a surrogate mother . Here, the element of consent is absent and thus such arrangements cannot be justified as are more exploitative in nature because in commercial arrangements, at least the woman is paid for her services and can terminate the contract if wishes to, but here the arrangement is internal and leaves no choice for the woman but to follow the will of the husband as is the case in a patriarchal family system like in India. Thus even in such cases, there is a requirement to protect woman from being forced to enter into surrogacy contracts and ensure that surrogacy contracts should be entered only if the surrogate mother desires to do so.
It is often argued that surrogacy contracts harm societal interests and thus cannot be enforceable even if individual’s right to procreate is at stake. The argument of balancing competing interests between individual’s right and society’s interest wherein, the latter is given preference cannot stand according to Dworkin, as for the validity of such an argument both interests have to be on the same plane or else even in the process of balancing, public interest would always win .
In countries like India, where there is no legislation regulating surrogacy contracts, the parties participating in surrogacy arrangements can be covered under the informal system as they are not covered and not regulated under the formal system which provides formality and protection of law to the corners of the society taken on board in terms of precise definition . Thus the parties under the informal system come up with own norms to regulate their social relations with each other which also implies that whether law recognizes or not, range of people do exist and function while organizing their own affairs independent of law which attaches much more centrality to the individual as compared to the formal system. The rights model of dynamic jurisprudence is based on mutual respect for running a relationship of trust and intimacy. Thus the surrogate mother and adoptive parents have to recognize the rights of each other and develop respect through which flexible norms can be created considering interests of both parties as well as the child. However a correlative relation can been observed between the rights and duties of the parties which is based on constant negotiations for example, a surrogate mother has a right to get medical expenses which is correlative of the duty of the adoptive parents to incur her medical expenses. Another dimension of such correlative relation is that it is the right of the adoptive parents to have a healthy child and it is the duty of the surrogate mother to ensure that she does not indulge into activities like smoking, drinking, consuming drugs or having a careless attitude. The jurisprudence of the informal sector ought to have an impact on formal jurisprudence when boundary is permeable.
Though these norms are created by the parties themselves, in absence of regulation, exploitation is most likely to occur. Thus permeability should be allowed in terms of regulation under formal system but in a manner which does not completely do away with the informal system of managing their own affairs, i.e. trace of forms of dynamic jurisprudence are ought to be located in the formal jurisprudence. It may make more practical sense to regulate surrogacy providing the parties with some legal recourse against exploitation rather to ban it completely as in case of formal system. The regulation would be in terms of eligibility to enter into such contracts, age limit and free consent. It would also impose certain liabilities on the professional doctors in case the guidelines set are violated.
In such a way, the rights of the parties and interests of the child would be secured, however commercializing would be rendered illegal and a surrogacy contract would not be enforceable if economic consideration is involved or free consent is absent. By not completely banning surrogacy arrangements, space is provided to a surrogate mother to enjoy her right to procreate in a rights based society without state intervention .
Surrogacy contract which disregards the interests of the child cannot be justified. Not all contracts are challenged in the court, only the ones in which the agreement broke and the disputes which did not come before the court is to be decided by the parties to the contract. In cases of altruistic surrogacy, where the countries are silent in terms of regulation like India, contract laws and courts are prevented from being used as recourse to solve conflicts among participants in the surrogacy contract which also implies that questions of family and social control within families as not the business of the State; they are private matters to be resolved by individuals rather than an adjudicator.
In a case where permeability is allowed and surrogacy relations are regulated formally, the court has to realize that the child lacks legal capacity to take decisions on major matters and thus a more child self centered view of the family and social future is to be adopted. The court should have a good faith concern for the child’s welfare. Safeguards are required in cases where no thought has been given to the interests of the child in a surrogate contract. The Court has to decide keeping in view the best interest approach which can be summed up as:
1. Disputes concerning custody which come before the courts are to be decided according to the welfare of the child in consideration of the functions of parenthood as to who is in best position to perform .
2. The control over the upbringing of child should be given to someone interested in protecting them . The court has to decide over the issues of who would be the primary care taker and stability of home environment which is integral for the development of the child’s personality.
3. In case, none of the adults accept the child, the solution is not to force custody on them, but to receive the minor into care.
4. Blood ties don’t guarantee that this function will be well performed, strong bonds should be established .
5. In the event the surrogate decides that she wishes to keep the baby, the courts will decide the issue of parental rights in accordance with the best interest test much like that which is employed in divorce cases .
To sum up, surrogacy contracts which involve payment amount to baby selling and there is a need for a formal legal mechanism to protect such women from being exploited on economic necessity grounds. This also applies to surrogacy contracts which do not amount to baby selling but involve social factors compelling women to act as surrogate mothers. However altruistic arrangements deductive of social and economic compulsions can be justified on basis of social good and thus such arrangements need to be given certain amount of formality in order to regulate the relations between the parties and to ensure that surrogate women are not exploited which is the major concern of feminist ideology. Thus such a solution would not only respect the autonomy of women to procreate in a rights based society but also provide a degree of protection to them to the extent that compelling factors don’t force them to enter into arrangements not desired by them. A further concern regarding the custody of child when conflict arises can be addressed by courts through adoption of best interest approach and not the custody model based on case to case analysis. Such issues would be undertaken only when the conflict arises under non commercial surrogacy agreements which due to permeability into the formal sector can be regulated to the extent that the flexibility of informal arrangements is not negated completely. Such an approach of regulation is better than out rightly banning surrogacy arrangements which do not commodify the womb or the child.
« Ronald Dworkin, Taking Rights Seriously, 1996, Universal Book Traders.
« Arthur J Jacobson, “The Other Path of the Law”, 103 (8) Yale Law Journal 2213.Janice
« Heidi Stroh, Puppy Love: Providing for the legal protection of Animals when their owners get divorced, May 2007, Journal of Animal Law and Ethics.
« JSTOR: Sharyn L. Roach Anleu, Reinforcing Gender Norms: Commercial and Altruistic Surrogacy, Acta Sociologica, Vol. 33, No. 1 (1990), Sage Publications, Ltd.
« JSTOR: Brenda M. Baker Hypatia, A Case for Permitting Altruistic Surrogacy, Vol. 11, No. 2 (Spring, 1996), Indiana University Press.
« JSTOR: Review: Selling One's Birth-Rights, Vol. 102, No. 5 (Mar., 1989), The Harvard Law Review Association.
« JSTOR: G. Raymond, Reproductive Gifts and Gift Giving: The Altruistic Woman, The Hastings Center Report, Vol. 20, No. 6 (Nov. - Dec., 1990).
« JSTOR: Sharyn Roach Anleu , Surrogacy: For Love but Not for Money?, Gender and Society, Vol. 6, No. 1 (Mar., 1992), Sage Publications, Inc.
« JSTOR: Janna C. Merrick , Selling Reproductive Rights: Policy Issues in Surrogate Motherhood Politics and the Life Sciences, Vol. 8, No. 2, (Feb., 1990), Association for Politics and the Life Sciences.
« JSTOR: Ira C. Lupu , The Separation of Powers and the Protection of Children, Vol. 61, No. 4 (Autumn, 1994), The University of Chicago Law Review.
"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 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". (Baby Manji Yamada v. Union of India (UOI) para 9).
"Altruistic surrogacy" is a situation 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). (Ibid para 8).
Sharyn L. Roach Anleu, Reinforcing Gender Norms: Commercial and Altruistic Surrogacy, Acta Sociologica, Vol. 33, No. 1 (1990), Sage Publications, Ltd., p.69.
Brenda M. Baker Hypatia, A Case for Permitting Altruistic Surrogacy, Vol. 11, No. 2 (Spring, 1996), Indiana University Press, p. 35.
Review: Selling One's Birth-Rights, Vol. 102, No. 5 (Mar., 1989), The Harvard Law Review Association, pp. 1074-1079.
Ronald Dworkin, Taking Rights Seriously, 1996, Universal Book Traders.
Heidi Stroh, Puppy Love: Providing for the legal protection of Animals when their owners get divorced, May 2007, Journal of Animal Law and Ethics.
In Australia, Victoria and South Australia have passed laws prohibiting commercial surrogacy contracts and Queensland law bans all surrogacy agreements including those not involving payment.
Janice G. Raymond, Reproductive Gifts and Gift Giving: The Altruistic Woman, The Hastings Center Report, Vol. 20, No. 6 (Nov. - Dec., 1990), p.8.
Supra n.4 at p.37.
Supra n..4 at p.35.
Supra n..4 at p.35.
Supra n. 7.
Arthur J Jacobson, “The Other Path of the Law”, 103 (8) Yale Law Journal 2213.
Sound mind, special protection to Pardanasheen Women
Supra n. 7.
Sharyn Roach Anleu , Surrogacy: For Love but Not for Money?, Gender and Society, Vol. 6, No. 1 (Mar., 1992), Sage Publications, Inc, .pp. 30-48.
Supra n. 8.
Janna C. Merrick , Selling Reproductive Rights: Policy Issues in Surrogate Motherhood Politics and the Life Sciences, Vol. 8, No. 2, (Feb., 1990), Association for Politics and the Life Sciences.
Ira C. Lupu , The Separation of Powers and the Protection of Children, Vol. 61, No. 4 (Autumn, 1994), The University of Chicago Law Review, pp. 1317-1373.
Supra n. 8.
Supra n. 20.
Supra n. 8.
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