LEGALISATION AND REGULATION OF SURROGACY CONTRACTS
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Abstract
The concept of alienability of rights through a contract is one of the most debated topics under contract law. What kind of rights can be alienated? What would be the extend of alienation of such rights? How to regulate them? These are the most difficult questions for which theorists are trying to find an answer.
One such controversial area of discussion relates to the legality of surrogacy contracts. The question of legality revolves around the rights model and the state’s responsibility to protect its citizens. While the former allows for individual autonomy to decide what is best for them, the latter makes it the duty of the state to protect its nationals from taking decisions detrimental to their sense of personhood.
Critics to surrogacy view the payment to surrogate mother as baby selling and thus morally wrong and illegal. There is a general conceptualisation of economic duress to be the reason for women to participate in surrogacy. Especially in countries like India where surrogacy today has become a hub for not just nationals but also foreigners to get easy and cheap access to willing surrogate mothers. The lack of state intervention is resulting in unrestricted exploitation of the market and at the same time in a country like Taiwan, a ban on any kind of surrogacy is resulting in extreme state intervention in the lives of its nationals. To an extend which in some cases is denying the right of parenthood to its citizens.
Through this paper I would analyse the diffe
rent theorises presented by various authors and the legal positons of India and Taiwan regarding surrogacy contracts to answer one basic question – Do surrogacy contracts amount to baby selling? And if they do what is a better solution, regulating or prohibiting them?
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