“Fertility tourism” has become the new mantra for attracting foreign tourists. India is emerging as the epicentre of surrogacy with the reproductive segment of the Indian medical tourism hitting Rs. 25,000 crore this year. The affinity to the domestic reproductive medical services is fuelled by the existence of prohibited treatment options, lax governmental regulations, the economical medical facilities, and the cheap surrogate services.
In 2005, the Indian Council of Medical Research (ICMR) came up with guidelines to regulate the fertility services. These guidelines, however, are not legally binding and hence usually disregarded. In September 2008, when Baby Manji’s case was decided, the Supreme Court tangentially touched upon the ethical constraints of surrogacy. It also pointed out the pressing need for competent legislation at hand. One month later, the ICMR, along with medical specialists and other experts from the Ministry of Health, came out with a draft Assisted Reproductive Technology (Regulation) Bill and Rules, 2008. Though the Bill is commendable as it has sorted out the rights and obligations arising out of surrogacy contracts, it has many lacunae. On its paths to legalise commercial surrogacy arrangements, it sets India to be the first country to take such a stand. This has been heavily criticised as an attempt to boost the already thriving fertility market in the country.
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Altruistic surrogacy can be termed as “women helping women”, where the surrogate agrees to undergo pregnancy for helping the couple without any consideration. Commercial surrogacy involves reimbursement of a surrogate for carrying the contracting couple’s child in her womb and is universally condemned.
The ART Bill includes surrogacy contracts within the ambit of the Indian Contract Act (Act) making it enforceable. The Act, on the other hand, prohibits contracts against public policy which includes public morality and conscience. Though altruistic surrogacy is acceptable to society, commercial surrogacy arrangements are considered immoral as they involve giving up the maternal rights and the selling of babies for money. While legal recognition to surrogacy may be considered emancipatory in the sense that it recognises a woman’s right to make choices regarding her body and also the right of procreation under the right to life guaranteed by Article 21 of the Constitution of India, it throws up a number of issues that need to be addressed. While there must be toleration of individual freedom of a surrogate to trade her reproductive rights, a consensus on the moral position acceptable to the community has to be followed. Which way does the balance tilt?
Commercial surrogacy can be termed as “reproductive trafficking” as it creates a national and international traffic in which women have become moveable property, and objects of reproductive exchange, brokered by intermediaries with profit motives. Severing a woman’s ties with a child by contract as in the case of surrogacy arrangements dismisses bonds between the surrogate and child that can be created by pregnancy. Excising the physical act of pregnancy and childbearing from the notion of motherhood necessarily leads to commoditisation. It also occurs when the surrogate mother does not desire the child for its own sake but for money. Creating a child without desiring it will fundamentally change the way we look at children, instead of viewing them as unique individuals to be desired in their own right. This results in treating human life like any other commodity and surrogacy contracts as contracts for the sale of goods. The safer standpoint seems to be to consider surrogacy contracts as contracts for services. Surrogacy contracts elude classification as they go contrary to public policy when viewed from any perspective.
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The 18th Law Commission, in its recent 228th report, has recommended a pragmatic approach, legalising altruistic surrogacy and prohibiting commercial surrogacy. It is essential to bridle the leaps of technology to ethical boundaries. Now it is left to our legislators to decide whether the pricing of a womb is tolerable or not.