A Jurisprudential Analysis Of Legal And Theoretical Facets Associated With The Practice Of Surrogacy In India

This blog is inscribed by Arunav Bhattacharjya.

Surrogacy is an agreement whereby a woman consents to carry and rear a baby for another couple and gives up the baby at birth. In the last decade, the practice of commercial surrogacy has grown enormously in India and is a huge money making industry. When the government imposed a ban on commercial surrogacy, foreigners accounted for 80 per cent of surrogacy births in the country. Although this agreement appears to be advantageous for all parties involved, however there are indisputable fragile issues that needs to be addressed through cautiously framed laws in order to protect the rights not only of the surrogate mother but also of the prospective parents. The absolute neglect for the rights of the surrogate mother and the unborn child has resulted in a number of PIL’s in the Supreme Court addressing the violation of rights of the surrogate mother and imposing a ban on commercial surrogacy. To subdue this problem, in 2016 the Surrogacy Regulation Bill was introduced in the Parliament banning the practice of commercial surrogacy. However, the bill seems to do more harm than good. Although it was formulated to curb the exploitation of women both physically and mentally and trafficking of children; it exhibits a general policy of a state banning or censoring an activity almost completely, instead of looking at alternate ways and formulate new regulations to improve the situation. Hence it is the need of the hour that the laws in India need to be re-looked and scrutinized with a more humane touch so that the actual benefit goes out to the surrogate mothers, the prospective parents, and the children born from surrogacy.

Termination Of Pregnancy As A Right Of The Surrogate Mother

It is an implied covenant duty on the part of the intending parents to pay primary attention to the physical health, the reproductive health and the mental health of the surrogate mother in order to ensure her basic, constitutional rights as well as human rights. In furtherance of the rights of a pregnant woman the apex court in Mrs. X v. Union of India[i] allowed for the termination of pregnancy, which could have gravely endangered the women’s physical and mental health.

The Supreme Court in the decision of Meera Santosh Pal and Others v. Union of India and Others[ii] has specifically recognized that in circumstances given the danger of a women’s life or integrity of her health, she has a right to protect and preserve her life and ensure the well being of her physical and mental needs, particularly since she has made an informed choice. The exercise of her right seems to be within the limits of her “reproductive autonomy”, and thus established that the reproductive rights include a women’s entitlement to carry a pregnancy to its full term to give birth.[iii] The idea of right to reproduction, also finds reason in the judgment of the US Supreme Court in Jack T. Skinner v. State of Oklahoma and in the case of B.K. Parthasarthi v. Government of Andhra Pradesh[iv] where it is held that the right to reproduce is “one of the basic civil rights of women” and also upheld that “the right to reproductive autonomy” of an individual is an aspect of “right to privacy”. And thus, Right to Privacy has been held to be constitutionally protected fundamental right which is also a basic inalienable right of an individual.[v]

The surrogate mother has certain rights to be exercised by her against the intended parents, and subsequently the intended parents also have certain duties to be exercised for the benefit of the surrogate mother. Thus in conformity with the Hohfeldian analysis[vi] of right and duty being jural correlatives, the petitioner humbly submits before this Hon’ble court that it is an ‘implied duty’ on the part of the intending parents i.e. the respondent to exercise necessary steps to ensure the well being of the physical and mental health of the Surrogate mother. In Roe v. Wade[vii] the US Supreme Court ruled that, a fetus is not a ‘person’ but potential life only if born alive and thus does not have constitutional right of its own, also in Doe v. Bolton[viii] the court defined health as “all factors – Physical, emotional, psychological, familial, and the women’s age –relevant to the well being of the patient”.The apex court in its landmark judgment in Sarmishtha Chakraborty and Another v. Union of India[ix] has held that in matters where the mother is subjected to serious mental trauma and shall suffer mental injury included that there shall be multiple mental and physical problems if the child is born alive, the pregnancy should be allowed to be terminated even after 20 weeks. Also in Suchita Srivastava v. State[x] (UT of Chandigarh) the court has expressed that the right of a women to have reproductive choice is an inseparable part of her personal liberty, as enshrined in Article 21 of the Indian Constitution. She has a inviolable right to have her bodily integrity. Furthermore, under the Indian Penal Code,[xi] a woman has the right to abort the child if there exists a substantial risk that, if the child is born, it would suffer from some physical or mental abnormalities so as to be differently abled.

The Question Of Reproductive Autonomy Of A Surrogate Mother

Surrogacy method is often criticized by Marxist and feminist groups in the context of exploitation meted out to the surrogate mother with regards to the agreements, medical procedures involved and the power relations between the parties (the intending couple and the surrogate mother). These ideologues challenges the very concepts of informed consent and reproductive autonomy of the body of the surrogate mother in a patriarchal society. Feminist groups are also skeptical about the new reproductive technologies in medical field and argue that these reproductive technologies, rather than curing infertility of the intending couple, creates a ‘technological fix’ to address the issue. The Marxist criticism to surrogacy comes from a class-based analysis of the relationship existing between the surrogate mother and the intending couple and therefore criticizes the liberal framework of the right-based approach which tends to hide gender and class issues. The relation that exist is that of womb leasing between the surrogate mother and the child. The mother do not have the right to keep the child after birth, she acts as a contractor who is willing and able to give the end product once the contractual agreement between her and the intending couple is fulfilled.[xii] This argument extends the evaluation of Karl Marx’s on the principle of human labor and how they are alienated from the fruits of their labor appropriated by the employer through exploitation.[xiii] Marxist-feminist groups are therefore critical towards the construction of equal consideration of the parties involved in a surrogacy agreement which is based on the principle that one woman helps the intending couple of their right to procreate. They negate this belief by strongly asserting that in a capitalist society the labor driven market forces women to undertake surrogacy. Therefore, they oppose the autonomy of women in procreation or the notion of freedom of choice in surrogacy agreements. They view that the willingness to become a surrogate mother to the intending couple is a component of the socio-economic and political condition constructed by the state which thus forces women to sell their reproductive capacity for their survival.[xiv]

Ethics And Morality In Surrogacy Procedure

The growth of the surrogacy industry in India has raised serious questions of the issue of  gender justice, and in particular whether the option is inordinately alluring for women who lack other remunerable options and whether the stipulated conditions in surrogacy agreements are adequate and the compensation given is fair. The moralistic harm in international commercial surrogacy lies in the exploitative nature of the transactions which involves unequally vulnerable parties. The practice is exploitative in nature due to failure of consent and justice across the contractual agreement and in the scenario one party always tends to have an advantage over the other due to the vulnerable conditions.

Unlike organ transplant, an area where commercialization is yet to be permitted, in surrogacy arrangement, women are contracted under conditions which aren’t ethical in nature. Critics of commercial surrogacy concede that it is a form of work, a way to sell human labor that leads to exploitation. Many scholars have focused attention on the dangers and risks the surrogates face which have been ignored by the ICMR guidelines and legislative drafts so far, and demand better legislation and policies, while others have asked for a complete ban on the practice. On the other hand, there is also a section of society who argue that women have a right to use their bodies as they wish to . This notion takes the neo-liberal perspective where a worker is free to sell his/her labour in lieu of money. As labour is sold in the market, the use of the word ‘labour’ for child birth justifies its commercialization. Labelling the role of a surrogate mother as ‘work’ gives impetus to the state to pull her into the market. Intellectual positions then become counterproductive and insensitive towards the real life conditions of the surrogates, and their constraints. While legislations has been bought up by the Parliament with an intention to regulate an already existing surrogacy industry, the rights of the surrogate mother is yet to be fully addressed and many questions lie unanswered.

[i]  Mrs. X v Union of India 3 SCC 458. (2017)

[ii] Meera Santosh Pal and Others v Union of India and Others 3 SCC 462 (2017); see also Tapasya Umesh Pisal v Union of India 12 SCC 57 (2018).

[iii] Suchita Srivastava v Chandigarh Admn, 9 SCC 1. 9 316 US 535 (2009)

[iv] B.K. Parthasarthi v Government of Andhra Pradesh , AIR 2000 A.P. 156.

[v] Justice K.S Puttaswamy (Retd.) and Anr. v Union of India & Ors AIR 2015 SC 3081

[vi] M.D.A. Freeman, Llyod’s Introduction to Jurisprudence, 8th ed. 2008, pp.394-395.

[vii] Roe v Wade 410 US 113 (1973)

[viii] Doe v Bolton 410 US 179 (1973)

[ix] Sarmishtha Chakraborty and Anr v Union of India, 13 SCC 339 (2018); see also Priyanka Shukla v Union of India, W.P. (C) 7080/2019; also Indian Penal Code 1860, Section 312

[x] Suchita Srivastava v State (UT of Chandigarh), 9 SCC 1 (2009); see also Savita Sachin Patil v Union of India 3 SCC 436 (2017); Sheetal Shankar Salvi v Union of India, 11 SCC 606 (2018) .

[xi] Indian Penal Code 1860, Section 312

[xii] Anita Rao, ‘Surrogacy Arrangements: Legal and Social Issues, Journal of Law Teachers of India’ Volume 1(Issue No.1-2) 2010.

[xiii] In Capital, Marx explains “in the exchange of human labor for money within capitalism, the human being is treated as a machine. Capitalism turns the worker into a fragment of a person, an appendage of a machine”

(Marx, 1977)

[xiv] Mumbai and SAMA Resource Group for Women and Health, Forum Against Oppression of Women, New Delhi.

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