Law in Surrogacy
Keywords:
Surrogacy in India, Supreme Court cases, 228th Law Commission Report, Assisted Reproductive Technologies (Regulation) Bill, 2010.Abstract
Motherhood is often cited as God’s paramount blessing on a woman. However, the conception of “Surrogacy” that is, nurturing a baby in the womb, taking the pain to deliver it and voluntarily parting away from this benediction for another childless woman, giving rise to a strange relationship wherein, the latter becomes the “mother” and the former acquires the title of a “surrogate mother”, seems bizarre and debatable. This arrangement brings forth a varied range of legal complications pertaining to for instance, the rights of the surrogate mother, status of the child borne using the tool of surrogacy, issues of foreign couples renting the womb of an Indian womb, the demarcation between surrogacy and adultery, amongst others. In the absence of a well-defined and comprehensive law on Surrogacy in India, the Supreme Court steps in for rescuing the parties involved. The Honourable Court in 2008, for the first time declared surrogacy legal in the country, and also directed the Government to draft a suitable legislation in this regard in the famed Manji’s case. As a consequence, the Parliament promulgated the Assisted Reproductive Technologies (Regulation) Bill in 2010 which continues to remain pending. The obscurity in the legal scaffold thereby gives way to surrogacy contracts and Assisted Reproductive Technique Clinics guidelines which largely govern the said arena. The research paper shall first introduce the idea of surrogacy in its entirety. It will focus on the legal regime regulating surrogacy in India. This shall include an analysis of the judicial pronouncements, the 228th Report of the Law Commission of the country and the aforementioned awaited Bill. The paper shall also discuss the rights and obligations of “surrogate mother”. The paper will conclude with the suggestive remarks.
References
1. Imrie, Susan, Jadva, Vasanti. The long - term experiences of surrogates: relationships and contact with surrogacy families in genetic and gestational surrogacy arrangements. Reproductive Biomedicine Online. 29 (4): 424–435.
2. Projected Parents . Here refers to the infertile couple who are unable to have their own biological child.
3. Catherine Brown . The Queensland Investigation into the Decriminalization of Altruistic Surrogacy‖, 29 (2) Queensland Lawyer, 78-83 (2008).
4. American Law Reports . Validity and Construction of Surrogate Parenting Agreement. 77 A.L.R. 4th 70 (1989).
5. Kush Kalra . Surrogacy Arrangements; Legal and Social Issues . Journal of Law Teachers India 125 (2010).
6. Kush Kalra . Custody of the Child and Surrogacy Contracts in India . Shreeram’s The Law 42 (July 2013).
7. J.P.S. Sirohi, Criminology and Penology 679 (2011).
8. Imrana Qadeer and Mary E John . The Business and Ethics of Surrogacy . Economic and Political Weekly 10 (January 2009).
9. N.B. Sarojini, Aastha Sharma. Guidelines Not Enough, Enact Surrog acy Laws . Hindustan Times, August 8, 2008.
10. Dhananjay Mahapatra. Surrogate Twins to Finally go Home. Times of India, May 27, 2010.
11. Anil Malhotra . Business of Babies . The Tribune, December 14, 2008.
12. Editorial Surrogate Motherhood . The Tribune, December 23, 2009.
13. Sama Team . Assisted Reproductive Technologies: For Whose Benefit? Economic and Political Weekly 25 ( May 2009).
14. Available at http://www.bma.org.uk/ ap.nsf/content/consideringsurrogacy
15. Archana Dhawan . Paving Path to Parenthood. The Tribune, December 30, 2011
16. Sugato Mukherjee . Legal and Ethical Issues of Commercial Surrogacy in India: An Overview. Available at http://www.academia.edu/1955503
17. M.P. Jain, Indian Constitutional Law 1133 (2005).
18. Govind vs. State of M.P., AIR 1975 SC 1378, the court followed the US decision in the case of Jane Roe vs. Henry Wade, 410 US 113 (1973) where the court recognised the right of privacy.
19. District Registrar and Collector vs. Canara Bank, 2005 (1) SCC 496.
20. R. Rajagopal vs. State of Tamil Nadu, AIR 1995 SC 264.
21. Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law.
22. Francis Coralie vs. Union Territory of Delhi, AIR 1981 SC 746.
23. Maneka Gandhi vs. Union of India, AIR 1978 SC 597
24. AIR 1963 SC 1295.
25. BK Parthasarathi vs. Government of Andhra Pradesh, AIR 2000 AP 156
26. AIR 1995 SC 264.
27. Unni Krishnan vs. State of A.P., AIR 1993 SC 2178, Gobind vs. State of M.P., AIR 1975 SC 1378.
28. Manji Yamada v. Union of India , 2008(3) LS 194 (SC); Supreme 2008(7) P 287; JT 2008(11) P 150; AIR (SCW) 2008 P 6964.
29. 2008(3) LS 194 (SC); Supreme 2008(7) P 287; JT 2008(11) P 150; AIR (SCW) 2008 P 6964, Para 5
30. The Act, 2005 under Chapter III conferred number of powers and functions to the IJHML (2019) 30-43 © Law Journals 2019. All Rights Reserved Page 43 Commission to safe guard the interest of the child particularly distress, marginalized, children conflict with law, Juveniles, children without family, children affected terrorism, communal violence, riots natural disasters, domestic violence, HIV/Aid s, Trafficking, Maltreatment and Pornography and Prostitution, etc.
31. Shaikh Azizur Rahman. Indian surrogate mothers suffer exploitation.
32. The Associated Press (2007 -12-30). India’s surrogate mother business raises questions of global ethics.
33. Assisted Reprodu ctive Treatment Act 2008’
34. See, Sec. 6(1), 12(1)c, 12(2) and 12(3) of the Assisted Human Reproduction Act, 2004.
35. French Civil Code, 1804
36. Teman, Elly, ‘Birthing a Mother: The Surrogate Body and the Pregnant Self, University of California Press, Berkeley, 2010
37. http://www.japantimes.co.jp/opinion/2014 /06/15/ editorials/plan -surrogate-births/#. VpJqnU9TJYN,
38. Brahams D. The hasty British ban on commercial surrogacy’, Hastings Center Report, Vol. 17, No. 1, 1987, pp. 16–19, at p. 10.
39. Ibid, at p. 11.
40. Gitlin, Joseph H., ‘Illinois Becomes Surrogacy Friendly’.
41. Lawrence, Dale Elizabeth, ‘Surrogacy in California: Genetic and Gestational Rights’, Golden Gate University Law Review, Vol. 21, No. 3, 2010, pp. 525 - 557.
42. See, http://www.inciid.org/printpage.php? cat=thirdparty&id=782,
43. Gazette, Arkansas Democrat, ‘reproduced on Simple Surrogacy’, 2007 Cite this Article Nikita Kaushik. 2019;2(1): 30–43p.
