Surrogacy may be of 2 types – partial (when the sperm is fertilized with the egg of the surrogate mother and born to term) or total (when sperm and the oocyte of the commissioning or genetic parents are fertilized in vitro and inseminated into the womb of the surrogate mother who bears the fetus to term). Surrogacy arrangements may be commercial (when the commissioning parents pay for expenses as well as monetary compensation to the surrogate mother) or altruistic (where only expenses are taken care of by the commissioning parents. This is an arrangement often entered into with known members or family members of the commissioning parents)
With the issuance of ART Guidelines by the Ministry of Health and Family Welfare, surrogacy arrangements have been made permissible in India. There is, however, no any law on the issue.
News reports show an increasing trend of surrogacy arrangements being entered into. (particularly in Anand district in Gujarat) In most cases the women enter into such arrangements to overcome financial constraints. There is also an increasing trend of foreigners commissioning Indian women to act as surrogate mothers.
Surrogacy arrangements are primarily facilitated by ART clinics. However, the ART clinics are not meant to negotiate monetary transactions between the parties. Hence such arrangements are entered into by the contracting parties.
There is no study of the manner in which such practices takes place most of the information is based on anecdotal accounts and news paper / media reports.
First and foremost, surrogacy has not gained popularity and is not pervasive in India, being a country which is over populated and has one of the richest genetic pools in the world. On the other hand countries which consider surrogacy as a major public issue are those where the population itself is declining and the genetic pool correspondingly declining as is the case in many European countries.
Next, the issue is of recent origin, linked to the availability of reproductive technology- the oldest living child born out of in vitro technology is not over 30 years of age, who has recently written about her experience. However, although surrogacy has not assumed the proportions of a major public policy concern, the question of infertility among individuals desiring a genetic child exists and therefore has to be dealt with by the law.
It follows from this that any law will focus on the right of individuals who are infertile and desire to have a genetic child. The issue then has to be viewed from the point of view of an individual. Does the “right to life” guaranteed in the Constitution include the right to procreate? Are there international instruments or norms on these rights? Does the right to procreate include the right to artificial insemination and creating a child through surrogacy?
It is submitted that fundamental rights does not extend to the right of access to reproductive technology and in particular, does not extend to the right to have an embryo implanted in another woman’s womb.
However, the mere fact that it is not a fundamental right, does not lead to the conclusion that it is unlawful or that it cannot be legislated upon. Even if it is a fundamental right, restrictions can be put upon it in accordance with law. Here, while imposing restrictions by law, public policy does have a role to play in preventing any exploitative arrangements. Even commercial arrangements can be invalidated in the interest of fairness, more so, an arrangement which deals with human genetic material and the bringing into the world of a new human being.
This brings us to the question, whose rights are we dealing with?
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