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Report No. 228

Legal and moral issues

1.8 The moral issues associated with surrogacy are pretty obvious, yet of an eye-opening nature. This includes the criticism that surrogacy leads to commoditization of the child, breaks the bond between the mother and the child, interferes with nature and leads to exploitation of poor women in underdeveloped countries who sell their bodies for money. Sometimes, psychological considerations may come in the way of a successful surrogacy arrangement.

1.9 As far as the legality of the concept of surrogacy is concerned it would be worthwhile to mention that Article 16.1 of the Universal 11Declaration of Human Rights 1948 says, inter alia, that "men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family".

The Judiciary in India too has recognized the reproductive right of humans as a basic right. For instance, in B.K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 AP 156 , the Andhra Pradesh High Court upheld "the right of reproductive autonomy" of an individual as a facet of his "right to privacy" and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma, 316 US 535 , which characterised the right to reproduce as "one of the basic civil rights of man". Even in Javed v. State of Haryana, (2003) 8 SCC 369 , though the Supreme Court upheld the two living children norm to debar a person from contesting a Panchayati Raj election it refrained from stating that the right to procreation is not a basic human right.

1.10 Now, if reproductive right gets constitutional protection, surrogacy which allows an infertile couple to exercise that right also gets the same constitutional protection. However, jurisdictions in various countries have held different views regarding the legalization of surrogacy. In England, surrogacy arrangements are legal and the Surrogacy Arrangements Act 1985 prohibits advertising and other aspects of commercial surrogacy.

In the US also, commercial surrogacy seems prohibited in many states. In the famous Baby M. case1 , the New Jersey Supreme Court, though allowed custody to commissioning parents in the "best interest of the child", came to the conclusion that surrogacy contract is against public policy. It must 1 AIR 2000 A. P. 156 2 316 US 535 3 (2003) 8 SCC 369 4 537 A.2d 1227 12be noted that in the US, surrogacy laws are different in different states.

1. 537 A 2d 1227.

1.11 If the 1988 Baby M. case in the US forced many to put on legal thinking caps, then that year also saw Australia battling with societal eruptions over the Kirkman sisters' case in Victoria. Linda Kirkman agreed to gestate the genetic child of her older sister Maggie. The baby girl, called Alice, was handed over to Maggie and her husband at birth. This sparked much community and legal debate and soon Australian states attempted to settle the legal complications in surrogacy. Now in Australia, commercial surrogacy is illegal, contracts in relation to surrogacy arrangement unenforceable and any payment for soliciting a surrogacy arrangement is illegal.



Need for Legislation to Regulate assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to Surrogacy Back




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