Topic- “Legal and Ethical Dilemmas relating to Surrogacy”

Introduction

Motherhood is one of the most beautiful phases of life. Becoming a parent is a joy which has
no bounds. Every mother cherishes the experience of motherhood. However, in some
unfortunate cases, some complications occur in the pregnancy due to infertility or some other
condition which leads the parents to turn to procedures like in vitro fertilisation (IVF). Under
IVF, a mature egg is fertilised with a sperm outside the body and then planted into the uterus
of the mother. One of the types of IVF is surrogacy. Surrogacy means “a practice whereby
one woman bears and gives birth to a child for an intending couple with the intention of
handing over such child to the intending couple after the birth.1 The word “surrogate” has its
origin in the Latin term “surrogates” meaning a substitute, a person appointed to act in place
of another.2

Differentiating on the basis of embryos, there are two types of surrogacies: traditional and
gestational surrogacy.

Based on monetary compensation, surrogacy can be divided into altruistic and

Deontology

The theory of deontology talks about rights and wrongs. There are certain duties which
should be followed and rights which should be upheld no matter what the consequences.
Surrogacy also has various ethical dilemmas surrounding it. There are various rights and
duties corresponding to the parents and the surrogate mother which have been discussed
further.

Legal Aspects

1
Section 2 (zd), Surrogacy (Regulation) Act, 2021
2
Merriam-Webster Dictionary.
The Supreme Court of India first recognised the practice of commercial and altruistic
surrogacy in Baby Manji Yamada v. Union of India3. The biggest impact of the Baby Manji
Yamada decision has been that it spurred the government of India to enact a law regulating
surrogacy.

The most recent bill on surrogacy is the Surrogacy (Regulation) Act, 20214 bill which was
passed in early December of 2021. It only allows altruistic surrogacy. Commercial surrogacy
was banned in 2015 due to the increasing cases of exploitation. Altruistic surrogacy, too, is
also allowed to only a limited category of the population. It allows surrogacy to married
couples who have Indian citizenship. A ‘certificate of essentiality’ and a ‘certificate of
eligibility’ is required by the couple to opt for surrogacy. This might be controversial in
generational society as there are people out there who do not believe in concept of marriage
but still wish to have babies.

This act only includes married couples and thus partners in live-in relationships are left out.
The Supreme Court recognised transgenders as a different gender in the landmark case
National Legal Services Authority v. Union of India5. But the surrogacy act doesn’t include
the LGBTQIA+ community as same sex marriage is still not considered legal in India. The
Bill also does not allow couples who are fertile and capable of conceiving a baby to adopt the
method of surrogacy and takes away their Right to Choose.

The provisions of the Act also violate certain Fundamental Rights like the ones under Article
14, 19 and 21. Article 21 talks about Right to Life which also includes the Right to Privacy
which was held in the Aadhaar judgment6. In B.K. Parthasarathi v. Govt. of A.P.7, the
Andhra Pradesh High Court held that State's interference on procreation amounts to a direct
encroachment on one's Right to Privacy”. The act mandates certificate of essentiality and
eligibility to be taken from appropriate authorities which violates the Right to Privacy. A
couple or an individual has the right to decide everything related to their baby including the
mode of conceiving the baby. The strict qualifications for surrogates and intended parents
specified in the Bill are a case of excessive State intervention in the private lives of
individuals. Right to Liberty also falls under Article 21. A women’s right to reproductive

3
Baby Manji Yamada v. Union of India, (2008) 13 SCC 518
4
Surrogacy (Regulation) Act, 2021, no. 47 of 2021, Acts of Parliament, 2021
5
National Legal Services Authority v. Union of India , (2014) 5 SCC 438
6
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
7
B.K. Parthasarathi v. Govt. of A.P 1999 SCC OnLine AP 514.
choices is also a part of Right to Liberty. This was held in Suchita Srivastava v Chandigarh
Administration.8

Ethical Rights and Duties

Marriage ideally should not be a pre-condition to be able to opt for surrogacy. Every person
has a right to choose whether to have a child of their own or not. Now that person may belong
to LGBTQIA+ community or may be a single father or mother. The method of conceiving
the child should also be their choice.

The ban on commercial surrogacy takes away the woman’s Right to Livelihood. Not allowing
a woman to earn her livelihood through her own means of choice violates her Right to
Livelihood. Even sperm donors get paid. Women can also earn through commercial
surrogacy and be financially empowered. They may need the money for various reasons like
for their own child, for their education, and livelihood. They should have the freedom of
choice to choose the method of earning for themselves.

On the other hand, it is the duty of the person(s) who are to be the parents of the child to
properly compensate the surrogate mother. Altruistic surrogacy only permits the payment of
the medical expenses of the mother during the pregnancy. However, the mother faces a lot
of issues other than the usual health problems that come with the pregnancy. There is a
chance of more serious complications developing like gestational diabetes, hypertension or
potential damage to your reproductive organs. The mother also faces mental health issues.
Surrogacy has psychological repercussions. The surrogates are mentally harassed and
intimidated in some instances. Ideally, she should be compensated for the additional
challenges she is dealing with.

The surrogate mother has the right to professional counselling beginning with the first
discussion about surrogacy and continuing throughout the pregnancy and beyond.
Counseling can be done with her as an individual or with her and the prospective parents.

It is also the duty of the surrogate mother to take care of her own health. She has the
responsibility to give birth to a healthy child and take care of her own health at the same
time. She also owes a duty to the parents to deliver a healthy baby.

8
Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1
Some women find it difficult as they get emotionally attached to the child. The emotional
bond which they form with the child breaks when they give away the child. They have an
ethical right to know their child. But they can’t do so because of various legal constraints.
Any pregnancy can lead to mental depression before or after as they know that the
overwhelming happiness of becoming a parent is going to convert into grief after losing
their child.
In many cases, the married couple and surrogate mother sign a legal contract with all point
discussed and mention in their contract in detail. If the mother is uneducated, she faces a lot
of problems understanding the terms of a contract which can result in her exploitation. Every
surrogate mother has a right to receive legal aid. She should understand all the terms of the
contract and how the various provisions of the contract will benefit her.

Conclusion

It is true that surrogacy can have various detrimental consequences and that surrogate
mothers are exploited in a lot of cases. However, it is important to look at various ethical
rights and duties of the surrogate mother and the parents. The rights suggest that everyone
should be permitted to adopt the method of surrogacy. The problems do not justify a blanket
ban on commercial surrogacy which the bill has implemented. Nor do they justify the
classification of persons that the Bill has done in order to produce a specific category of
people who are eligible to adopt surrogacy. The need of the hour is not to put a blanket ban
on commercial surrogacy but to frame proper rules and regulations to prevent trafficking and
exploitation of women via commercial surrogacy. Laws should be enacted to provide
everyone the right to select their own means of producing a child.
References
Acts
Surrogacy Regulation Bill, 2019

Articles
A Comprehensive Analysis on Reproductive Health and Surrogacy in India: A Study on the
Law, Policy, and Practice, 2021 SCC OnLine Blog OpEd 147
Commercial Surrogacy: A Cluster of Issues and Complexities of Rights Under the
Constitution of India, 9.2 NLIU LR (2020) 435

Cases
Baby Manji Yamada v. Union of India, (2008) 13 SCC 518
National Legal Services Authority v. Union of India , (2014) 5 SCC 438
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
B.K. Parthasarathi v. Govt. of A.P 1999 SCC OnLine AP 514.
Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1

Sites

https://www.conceiveabilities.com/about/blog/surrogate-rights
https://blog.ipleaders.in/is-surrogacy-legal-in-india
https://surrogate.com/surrogates/pregnancy-and-health/emotional-and-medical-risks-of-
surrogacy/#:~:text=Medical%20Issues%20with%20Surrogacy,and%20other
%20uncomfortable%20side%20effects.