Validity of Surrogacy Agreements

The world is moving fast and people desire comfort. A time has come when women can’t afford to take a child in their womb as there is paucity of time. There has been even legal and ethical battle as to if a womb of a woman can be contracted for. In 1987 the New Jersey Superior Court upheld a surrogacy agreement, stripped away all parental or visitation rights from the surrogate mother and allowed the intended parents to legally adopt the child. Within a year later, the New Jersey Supreme Court reversed the decision of the lower court, nullified the contract, nullified the adoption rights of the intended parents and restored some visitation and parental rights to the surrogate parent. In such a time, such an article comes into great importance which discusses if the agreement of surrogacy is justified. This paper will look into the dimensions if a woman can, may and should enter into a surrogacy agreement. A contract of surrogacy can be entered into by a woman. A woman may be further either, a married woman or an unmarried woman. “Surrogacy Agreement” is an agreement between the intended parent and the Surrogate, which expresses their necessity and fully volitional desire to opt for Assisted Reproductive Technique of Surrogacy, whereby the surrogate shall bear and gestate the embryo of the Intended Parents. Broadly, surrogacy refers to the process in which a woman is artificially impregnated on behalf of intending parents. Sometimes donor sperm is involved, other times it is from the commissioning father. Sometimes the embryo is transplanted from the intending mother. [1] “Agreements” generally means the meeting of minds i.e. the parties to an agreement understanding each other’s intention at the point of entering into the agreement and there is a total synchronization of thought and action. Since there is no specific law with regard to Surrogacy or Assisted Reproductive Technique in India, ‘Surrogacy agreement’ is the only foundation which governs the parties to Surrogacy. Therefore the Intended Parents are required to devote attention to have a perfect agreement in place, so that the surrogacy agreement is not held void or voidable in the court of law. As in every agreement, each party to a surrogacy agreement should express his/her purpose and situations, the need for surrogacy, free will of the surrogate, details about the surrogate and the terms on which the surrogate agrees to gestate the child, etc. [2] The practice of renting a womb and getting a child is like outsourcing pregnancy. This trade’s business is estimated to be around $ 500 million and the numbers of cases of surrogacy are increasing at a huge rate in India. [3]

Before delving into the legitimacy or validity of such a contract, it is important to ascertain the answer of a very relevant question: Who owns the body of a woman? Is it the husband, the state or the woman herself? In the wake of individual autonomy modernization and family planning, the use of contraception, has given women control over her body – an ability to decide when and with whom she gets married and how many children does she want [4] . By the use of contraception the mortality rates of infant, child as well as the mothers have come down and the prevalence of sexually transmitted diseases has also reduced. [5] . Therefore even if it is presumed that a woman has the sole right over her body, contraception has broken the age old tradition where marriage was performed to satisfy the need of procreation. An alternative, perhaps more nuanced feminist viewpoint may envision the surrogate pregnancy as a communal moral enterprise, with a respectful relationship between the gestational mother and intended mother, recognizing each has a commitment to the anticipated child. This would be a shift from the current, more contractual vision of the relationship involving gestational surrogate, fetus, and intended parents, where the surrogate is clearly encouraged not to focus on her relationship to the fetus, and not to think of this as her own potential child. [6] Here the question whether a woman needs to be married to give birth to a child has been conclusively proved in negative. The first scenario is when an unmarried woman enters into a surrogate agreement. Women willing to participate in surrogacy may derive satisfaction from helping the intended parents. Many women participate in surrogacy primarily for altruistic reasons and see their services as a gift. [7]

Father Tom Connelly, the Roman Catholic Church’s Press Officer in Scotland is quoted, in The Herald, as challenging views on commercial surrogate motherhood which we expressed (or were thought to express) in a conference paper. [8] He says: ‘first of all a child is not a product, and while everyone has sympathy for childless couples, nobody has a right to a child’ (Smith 1998, p.10). We agree with this entirely. Some people, when they defend surrogate motherhood, might do so on the suggested grounds that people have a ‘right’ to be parents: we do not. When people are conceived and born, they are not conceived and born of right but of supreme good fortune. Similarly those by whom they are conceived do not conceive them of right. It does not follow from this that surrogate motherhood is wrong nor that it should be illegal. Even it is not a criminal offence for a commissioning couple to pay a surrogate mother for carrying a child: however, such agreements – along with all surrogate motherhood agreements, whether commercial or not are not legally enforceable. Moreover, when a commissioning couple make an application to the courts to be recognized as the legal parents of the child in question (either through adoption or by the granting of a parental order) their application could be refused if they have made, unless authorized by the court to do so, payment in excess of reasonable expenses to a surrogate mother. Nonetheless, in practice, the courts have tended not to deny legal parenthood on this basis: rather, they have retrospectively authorized the payments at whatever level they have happened to be. [9]

Courts witnessed several legal struggles initiated by lesbian women and single women, to recognize their right to become mothers. In this struggle there were several impressive victories and some setbacks. Thus, the Supreme Court ruled in 1996, that the regulation limiting the right of an unmarried woman to be granted IVF treatment collides with the latter’s right to equality, and is therefore void. [10] About ten years later, the Supreme Court acknowledged the legal competence of a lesbian couple to adopt each other’s children. [11] In Ruti Nachmani case, in its second phase, can be seen as part of this process. In a later case, the court rejected the discrimination claim of an infertile single woman to be granted surrogacy. [12] The court recognized her claim in principle but left it to the legislator. [13] These various struggles show how women tried to disentangle the bind between motherhood and patriarchy – arguing that the decision of ‘what is a family’ cannot be left to nature, or religion. It is a contested political and ethical issue that should be regarded as such. The new reproductive technologies give the state increasing powers of control over motherhood. Whether this power will be used to enhance the ‘law of the father’ or to transform women’ natural ability to give birth into a new source of empowerment, is yet to be seen. The Birth of Surrogacy is an important step initiating this important political debate. [14] If an unmarried woman contracts with a person for giving birth to a child is not valid under the Indian Contract Act. The act which does not have certainty cannot be enforced upon is mentioned under the Contract Act. The act of contracting a child hits public policy, and is hence invalid.

The second is when a married woman enters into a surrogate agreement. In such a situation the following situations arise: firstly if the woman doesn’t take the permission of the husband and agrees to become a surrogate mother, by either entering into a direct sexual relationship with the contracting party or by means of assisted reproductive technology, essentially commits an act of adultery thereby inviting criminal liability under S 497 of the Indian Penal Code.

The Greeks believed that men were the embodiment of mental and spiritual entities while women encompassed within themselves physical and earthy matters. Hence men were to be provided with higher status and greater privileges [15] . Their physical strength was often the basis of their superior status. The Indian Penal Code, still blindly assumes the fact that ‘man is the seducer and not the women’ and women still are considered to retain their virtues and are therefore treated as a victim [16] . Although being the abettor they are not considered as the author of the crime. Therefore any contract that results to a criminal act is necessarily void and hence is not enforceable.

On the other hand even if she does take the consent of her husband and a contract of surrogacy is performed, the contract in effect violates public policy. According to David Hume, attachment of sentiments not obligations to universal principles serve as foundation of morality. The goal of morality is not delineation of rights but the pursuit of social harmony [17] . His theory is the commemoration of family life and parental love. When Surrogacy reduces mother, who is considered to be the epitome of sacrifice and pure love into a carrier and her child into a commodity, mans history and belief is put to question. The old story of Abraham and Sarah and the earth cow as the evil surrogate mother of Prthu [18] are all instances of surrogacy available in religious beliefs of man. But at such a point of time remaining childless was a greater shame in the society than surrogacy itself. With the advancement of society surrogacy has been considered as an act of renting a womb for monetary consideration and outsourcing pregnancy. It demeans the relationship of a mother and her child and the whole ideology of the society regarding motherhood is soiled. Devlin in his disintegration theory mentions about a social morality that binds the members together and preserves social solidarity. If substantial majority of the people believe certain conduct to be degrading shameful or it obliterates common belief, it essentially is in contravention of public policy. Although article 16(1) of the Universal Declaration of Human Rights, recognizes the right to start a family, the Andhra Pradesh high court recognizes the right to productive autonomy as a part of right to privacy [19] and the U.S. Supreme Court in Jack T. Skinner v State Of Oklahomaha [20] termed the right of reproduction as the basic civil right of man, in many parts of the world commercial surrogacy contracts are still unlawful. According to the suggestions of the Warnock committee to the British government in 1984, commercial surrogacy contracts are treated as illegal contracts and hence unenforceable under the law [21] . Following the suggestion of the committee The Surrogacy Arrangements act came into force which prohibits commercial surrogacy. Commercial surrogacy also been banned in France, where in 1991 its highest court ruled that “the human body is not lent out, is not rented out, and is not sold” [22] . In the baby M case [23] the New Jersey High court ruled that surrogacy contracts were opposed to public policy. Even in Australia, such an idea is profound and surrogacy contracts are illegal [24] . It is banned by countries like Sweden, Spain and Germany. Even in the countries that do allow it, including South Africa and Argentina, various ethics committees are engaged to regulate surrogacy requests.

When the global community upholds an antagonistic view to commercial surrogacy, India has made it legal since 2002. These contracts have been widely misused to gain ulterior motives. Although being in clear contravention with the law, the Supreme Court of India has neither legalised it, nor illegalised it. The statutes also fail to provide an explanation affirmatively. India which claims itself to be the largest democracy in the world as well as a welfare state, has failed to take care of the interests of the vulnerable segment of the society. A bill regarding Assisted Reproductive Technology which embodies in itself the aspect of surrogacy is pending that needs to be addressed. A law which answers the ambiguity regarding the legal position of surrogacy must take birth. A child is a god’s gift. There are many children who do not get a bed to sleep, a meal to eat and the caressing touch of parents. Adoption, if done may solve this problem. Therefore adoption, not surrogacy should be the choice of childless parents.