Author : S. ANUPRIYA
College name : VEL TECH SCHOOL OF LAW, AVADI
INTRODUCTION
The Surrogacy (Regulation) Act, 2021, stands as a significant legal development aimed at addressing the complex issues surrounding reproductive technologies in India. As assisted reproductive technologies continue to evolve, the need for a clear legal framework to govern surrogacy practices has become imperative. This Act attempts to strike a balance between the rights of the surrogate mother, the child, and the intended parents. However, its provisions raise crucial legal questions regarding the recognition of personhood, the enforceability of surrogacy contracts, and the ethical concerns tied to commercial surrogacy arrangements. This paper critically explores the jurisprudential implications of the Surrogacy (Regulation) Act, particularly examining how it navigates the intricate relationship between legal personhood, reproductive autonomy, and the contractual dynamics at play in surrogacy agreements. The analysis will focus on whether the Act provides sufficient protection for all parties involved, preventing exploitation and ensuring equitable treatment. Additionally, it will evaluate the Act’s capacity to address concerns related to coercion and power imbalances inherent in the commercial surrogacy sector. Ultimately, this discourse aims to assess whether the legislative framework introduced by the Surrogacy (Regulation) Act, 2021, effectively promotes justice, protects individual rights, and upholds ethical standards in the realm of reproductive technologies.
Surrogacy and Legal Personhood: A Juridical Examination
The issue of legal personhood in surrogacy is a critical consideration under the Surrogacy (Regulation) Act, 2021. Legal personhood, which denotes the capacity to possess rights and obligations within the legal framework, is particularly complex in the context of surrogacy. According to the Act, the child born through surrogacy is immediately conferred legal personhood and recognized as the legal child of the intended parents, which ensures their entitlement to inheritance and parental rights. However, this raises concerns about the child being viewed more as an object of a contractual agreement rather than an individual with inherent legal rights.
From a legal standpoint, the surrogate mother’s role is often reduced to a gestational function, with no parental claims after the child’s birth. This arrangement potentially undermines the child’s autonomy and positions them within a transactional context defined by the contractual obligations between the intended parents and the surrogate. Such dynamics can diminish the legal recognition of the child as an independent legal entity.
While the Act seeks to regulate surrogacy and protect the parties involved, it invites scrutiny on whether the attribution of personhood adequately safeguards the child’s rights. The question remains whether the framework sufficiently protects the dignity and legal status of the child, ensuring that it is not reduced to the product of a contractual exchange, but rather treated as a full legal person with independent rights.
Contractual Obligations in Surrogacy Arrangements: A Legal Analysis
The Surrogacy (Regulation) Act, 2021, brings into focus the legal complexities surrounding the contractual obligations in surrogacy agreements. These contracts serve as the legal foundation for the relationship between the surrogate and the intended parents, covering key aspects such as compensation, medical procedures, and the transfer of parental rights after the birth of the child. The enforceability of these agreements under contract law, however, raises important legal concerns.
One of the most pressing issues is the potential for exploitation in commercial surrogacy agreements. In many cases, surrogates may enter these contracts under financial duress or coercion, particularly when they are in a vulnerable economic position. While the Act aims to regulate these practices and prevent exploitation, the power imbalance between the intended parents and the surrogate often remains. This imbalance can undermine the concept of voluntary consent, a fundamental tenet of contract law, and may result in surrogates being pressured into agreeing to terms that may not be in their best interests.
Another critical legal concern is the surrogate’s relinquishment of parental rights upon the birth of the child. Surrogacy contracts typically require the surrogate to forfeit any claim to the child, raising questions about the fairness and enforceability of such clauses. These contractual terms may infringe upon the surrogate’s personal autonomy, potentially violating her rights under family law or human rights law. Furthermore, from a legal standpoint, such provisions could be challenged for unconscionability or undue influence, particularly if the surrogate is not fully informed of the long-term implications of her decision.
Ethical Considerations in the Surrogacy (Regulation) Act, 2021: A Legal Perspective
The Surrogacy (Regulation) Act, 2021, introduces a structured approach to regulating surrogacy in India, but it raises several ethical challenges that need closer scrutiny. A major concern lies in the potential for undue influence and exploitation of surrogate mothers, particularly given the financial and social disparities that often exist between surrogates and intended parents. While the Act mandates informed consent, the ability of surrogates to truly exercise autonomy in such agreements remains questionable, as external pressures may influence their decisions.
The commodification of both the surrogate’s body and the child is another pressing ethical issue. In surrogacy arrangements, especially those involving financial compensation, the surrogate and the child may be viewed as commodities in a transactional contract. This raises important legal questions about the child’s status—whether they are merely the result of a contract or whether their inherent legal personhood and rights are sufficiently safeguarded in such circumstances.
Additionally, the requirement for surrogates to relinquish parental rights post-birth introduces ethical challenges regarding emotional attachment. Surrogates may form deep emotional bonds with the child, and the contractual obligation to sever any parental claims after birth could be seen as a violation of psychological well-being and parental autonomy. The emotional and psychological impact of such decisions must be carefully considered within the legal framework.
Comparative Legal Analysis of the Surrogacy (Regulation) Act, 2021: Global Perspectives on Reproductive Law
1. Surrogacy in India vs. the United States
In the United States, surrogacy laws vary from state to state, which results in significant differences in how surrogacy is practiced across the country. Some states, like California, allow commercial surrogacy and uphold a system based on contractual freedom, wherein intended parents and surrogates can negotiate financial terms and conditions. The contracts are legally binding, and legal parentage is transferred according to the terms of the agreement, often prioritizing the autonomy of the parties involved.
India, however, operates under a more centralized and regulatory system. The Surrogacy (Regulation) Act, 2021, prohibits commercial surrogacy, allowing only altruistic surrogacy arrangements, where surrogates cannot be compensated beyond reasonable medical expenses. This regulatory framework reflects India’s paternalistic approach, designed to mitigate the risks of exploitation. Surrogacy arrangements are subject to stringent requirements, including the evaluation of the surrogate’s eligibility and medical oversight by designated authorities. Unlike the U.S., where contracts drive surrogacy law, India’s model leans towards regulation with a focus on protecting surrogates and limiting the scope for exploitation.
2. Surrogacy in India vs. the United Kingdom
The United Kingdom shares some similarities with India, particularly in its prohibition of commercial surrogacy. However, UK law differs significantly in its approach to legal parenthood. In the UK, surrogacy contracts are not enforceable, meaning that the surrogate remains the legal mother of the child until a parental order is granted by a court. This process requires the intended parents to apply for legal parenthood after the birth, reflecting a balance between surrogate rights and parental rights.
In contrast, the Surrogacy (Regulation) Act, 2021, provides for an automatic transfer of legal parentage to the intended parents once the surrogacy contract is finalized and all regulatory conditions are met. This system prioritizes the rights of the intended parents over the surrogate’s post-birth legal relationship with the child. India’s regulatory system thus contrasts with the UK’s by removing the necessity for court approval in the transfer of parentage, focusing instead on procedural compliance.
Constitutional and Jurisprudential Impact of the Surrogacy (Regulation) Act, 2021: A Legal Examination
Constitutional Ramifications
The Act’s provisions engage core constitutional principles, notably Article 21 concerning the right to personal liberty, which includes the autonomy to make reproductive decisions. By limiting surrogacy to altruistic arrangements and imposing strict regulatory conditions, the Act restricts individual freedoms, particularly those of intended parents seeking commercial surrogacy arrangements. This could be viewed for individuals seeking surrogacy for financial reasons. The right to equality could be challenged, particularly when certain groups, such as single parents or unmarried women, are excluded from as a violation of fundamental rights to privacy and personal autonomy as guaranteed by the Constitution.
Jurisprudential Ramifications
A central issue in this legal framework is the legal personhood of children born through surrogacy. The Act automatically assigns parental rights to the intended parents, which bypasses judicial oversight. In contrast, jurisdictions like the United Kingdom require a legal process to determine parentage. The absence of a judicial review in India raises important questions regarding the surrogate’s post-birth rights, her connection to the child, and the child’s legal status. This automatic transfer of parentage could be perceived as diminishing the surrogate’s legal autonomy and undermining the child’s rights.
Ethical Considerations and State Intervention
The ethical implications of the Act also involve questions about the appropriate level of state intervention in reproductive choices. The protective framework of the Act seeks to prevent surrogates from being exploited but raises concerns that excessive regulation might infringe upon reproductive autonomy. In balancing the protection of vulnerable parties with the preservation of individual freedoms, the Act faces ethical dilemmas about reproductive autonomy, particularly the rights of the surrogate to make informed decisions about her involvement in surrogacy.
Proposed Legal and Policy Reforms for the Surrogacy (Regulation) Act, 2021
The Surrogacy (Regulation) Act, 2021 has reshaped the landscape of surrogacy in India, yet several aspects of the law still require refinement to balance autonomy, fairness, and equity. The following are recommendations aimed at improving the law’s application while safeguarding the rights of all parties involved.
1. Broaden Eligibility for Surrogates
The Act restricts surrogacy to married women with children, which may inadvertently discriminate against certain individuals. To promote non-discrimination and personal autonomy, the eligibility criteria should be expanded to include single women and women from different socio-economic backgrounds, provided they meet medical and psychological requirements.
2.Judicial Oversight in Parentage Determination
Under the current framework, the Act grants automatic parentage to the intended parents, which raises concerns about the surrogate’s legal personhood and rights over the child. To protect all parties’ rights and interests, a mandatory judicial review or administrative process should be introduced to evaluate the legitimacy of the transfer of parentage. This process would:
3.Strengthening Informed Consent Protocols
Informed consent is a cornerstone of ethical surrogacy practices. The Act must mandate a rigorous, transparent informed consent process for surrogates, covering not only the medical risks but also the legal, financial, and psychological implications. This should include:
4. Legal Framework for Surrogacy Contracts
The surrogacy agreements under the current Act need to be more standardized to ensure fairness and clarity for both surrogates and intended parents. The following steps can enhance contractual transparency:
ABSTRACT
The Surrogacy (Regulation) Act, 2021 represents a significant legal framework intended to regulate surrogacy practices in India. This paper offers a critical analysis of the jurisprudential implications of the Act, particularly focusing on the complexities surrounding legal personhood and the contractual obligations inherent in surrogacy arrangements. The paper investigates the legal status of surrogates and the children born through assisted reproductive technologies, addressing the balance between biological parenthood and legal parentage. It examines the legal constructs of parental rights and the surrogate’s role within these frameworks. Furthermore, the study explores the ethical issues surrounding autonomy, informed consent, and the potential for exploitation within surrogacy contracts, emphasizing the power dynamics that shape these agreements. The analysis advocates for a reformed approach to surrogacy law that would ensure equitable treatment of surrogates and intended parents while safeguarding fundamental rights. It proposes policy changes that emphasize gender equity, justice, and transparency, aiming to create a more ethical and rights-conscious framework for surrogacy in India. The paper concludes by highlighting the need for a robust legal model that reflects both human dignity and legal protection, ensuring that surrogacy practices are governed by principles of fairness and respect for all involved.
Conclusion:
The Surrogacy (Regulation) Act, 2021 represents a critical step in regulating surrogacy within India, yet it reveals several gaps and concerns in its treatment of legal personhood, contractual obligations, and ethical dilemmas in the context of reproductive technologies. Although the Act aims to curb exploitative practices and establish a clear legal framework, it falls short of addressing the complexities surrounding legal parenthood, autonomy, and the inherent power imbalances that can occur in surrogacy arrangements.
This paper has analyzed the tension between biological parenthood and legal parentage, pointing out how the current law may inadequately protect the rights of surrogates and children born through assisted reproduction. Moreover, the paper has highlighted issues regarding informed consent and exploitation, particularly in terms of the contractual terms that govern surrogacy agreements. Surrogates, often positioned in vulnerable circumstances, face risks of coercion and exploitation due to insufficient safeguards.
The analysis calls for comprehensive reform to address these concerns, with specific recommendations to ensure that surrogates and intended parents are treated equitably. Key reforms should include expanding the eligibility criteria for s to a more fair and just system.
Ultimately, while the Surrogacy (Regulation) Act provides a framework for regulating surrogacy, it must be further refined to ensure that it upholds the fundamental rights and dignity of all parties involved. A reformed legal framework is essential to align surrogacy practices with the principles of autonomy, equality, and justice, ensuring that reproductive technologies operate within an ethical and rights-respecting environment.urrogates, ensuring fair compensation, and providing stronger protections for informed consent. Additionally, introducing judicial oversight to oversee parentage determinations and enforcing gender equity within the law will contribute
case law
1. Reproductive Health and Rights v. Union of India (2020):
This public interest litigation challenged certain provisions of the Surrogacy (Regulation) Act, 2021, arguing that they violated the right to procreation, personal autonomy, and gender equality. The petitioners questioned whether the Act’s restrictions on who can access surrogacy, such as limiting it to married heterosexual couples, infringed upon fundamental rights, especially for single individuals and foreign nationals.
2.Indian Medical Association v. Union of India (2016):
This case dealt with the regulation of assisted reproductive technologies (ART), including surrogacy. The Supreme Court emphasized the necessity of ethical and medical guidelines to ensure that ART practices, including surrogacy, are carried out responsibly, protecting the dignity and well-being of surrogates and ensuring child welfare.
FAQ
1.What is the Surrogacy (Regulation) Act, 2021?
The Surrogacy (Regulation) Act, 2021 is a law enacted to govern surrogacy in India, aiming to curb commercialization and exploitation in the practice. It establishes clear guidelines for surrogate mothers and intended parents, addressing ethical standards, legal parentage, and the welfare of all parties involved.
2.What ethical issues are raised by surrogacy?
Ethical challenges include concerns over the exploitation of women, particularly those in vulnerable financial situations, the potential commodification of reproduction, and ensuring the rights of the child. Ethical debates also surround the consent process for surrogates and intended parents.
3.How does the Act protect surrogate mothers?
The Act protects surrogate mothers by ensuring their healthcare, psychological support, and fair compensation. It mandates that surrogates give informed consent and prohibits any form of exploitation or coercion in the surrogacy process.
