COMMERCIAL SURROGACY: LEGAL, SOCIAL, ETHICAL ISSUES

Abstract

“Surrogacy is a Human Victory over the Nature”

 A Woman becomes complete when she gives birth to her own child and to be called mother. But unfortunately this gift is not equally distributed by god to every woman. There are many women who suffer infertility due to various reasons.

According to the Assisted Reproductive Technology (Regulation) Bill, in the world around 15 percent couples are found infertile. The World Health Organization (WHO) has declared the infertility as a disease and reported that, India has an estimated 19 to 20 million infertile couples. Thus, the infertility has become one of the most common medical and social problems. Infertility has become the reason for the marriage collapse, divorce, desertion and may result in heavy psychological consequences. Recently, the surrogacy has become the best option for infertile couples, single person and gay and lesbian persons of their own genetic babies. The lifeline of the surrogacy is the Article 21 of the Constitution of India, which confirms the reproductive rights to every individual irrespective any gender or any nationality of the person. This right is also recognized in most of the previous and recent international human rights instruments as well as the regional treaties. The practice of surrogacy is alleged as illegal, unethical and immoral practice. The surrogacy agreement involves the various social, ethical, legal, psychological and medical issues.

The term surrogacy means where a woman consented to bear the child with the intention to relinquish the baby upon the birth to the commissioning couple. The last three decades, there is a huge growth of infertility clinics and surrogacy centers. Such clinics are growing like mushroom around the country. 

Different countries have different rules for regulation of surrogacy, as some have legalized altruistic surrogacy whereas few have not. In some of the States of USA, the commercial surrogacy recognized as illegal and unenforceable. In Australia, the commercial surrogacy is treated as a criminal offence. Since 2004, only altruistic surrogacy has been allowed in Canada and New Zealand. The surrogacy arrangement is unlawful in France, Germany and Italy. The commercial surrogacy was legalized in India since 2002 but with the introduction of Surrogacy (Regulation) Bill, 2016 has banned the commercial surrogacy and legalized altruistic surrogacy, which is restricted only to Indian heterosexual married couple only who have completed 5 years of their marriage. The Surrogacy (Regulation) Bill, 2016 was recently introduced in the Parliament thus being still in the womb of the Parliament and not finally made an Act leaves ample scope for addressing the issues which seem to not have been mentioned herein. 

The issues which the researcher wants to focus on are what happen if the commissioning parents refuse to take custody the child, who will be responsible to take custody of the child? Whether the commissioning parents are under legal obligation to take custody of the disabled child? Is denying homosexuals who are now recognized as third gender, the facility of surrogacy is not infringement of their human rights? Also how the legitimacy of the surrogate child be determined and what would be the nationality of the child? It is also alleged that surrogacy amounts to the commodification of women, sale of the child.