Commercial Surrogacy: The need to validate Commercial Surrogacy Contracts

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This article was written by Anindita Dutta, a student of WBNUJS.

In the contemporary world, much debate exists over the legalisation and regulation of surrogacy. Over thirty years since the premier case on surrogacy was decided, a uniform legislation governing surrogacy globally still lacks; the amount of regulation ranges from total liberation to complete prohibition. In this paper, I attempt to challenge certain propositions of the Surrogacy (Regulation) Bill, 2016 — especially the ban on commercial surrogacy. It has been argued that unenforceability of surrogacy contracts amounts to an ‘unjust infringement’ of an individual’s freedom to contract and right to privacy. I propose that contract law principles can provide solutions to the problems associated with commercial surrogacy and that, the surrogacy contracts will prevent the Courts from resolving disputes arbitrarily and according to their social perspective of ‘surrogacy’. Hence, a legal recognition of surrogacy contracts, along the legalisation but proper regulation of surrogacy, is required.

1. INTRODUCTION

Surrogacy is “the process of carrying and delivering a child for another person”[1] and has been categorised into traditional, where the surrogate carries her biological child; and gestational, where assisted reproductive technology is used and the surrogate has no genetic link with the child.[2] Altruistic surrogacy involves payment of no consideration to the surrogate and differs from commercial surrogacy. Surrogacy has been challenged on grounds of ethics and morality; lack of social acceptability and legal recognition continue to pervade surrogacy.[3] Surrogacy is not as stigmatised as before; it is the only alternative for infertile couples to produce their biological child conceived in the womb of another.[4] It also allows singles and homosexuals to avail their ‘right to rear a child’. The judgement in B. K. Parthasarthi v. Government of Andhra Pradesh said, “[R]eproductive autonomy … [is] a facet of right to privacy”.[5] Right to privacy, a subset of right to life under Constitution,[6] has been argued to be a right so fundamental that it should be left out of government intrusion.[7] Globalisation has made cross-border surrogacy arrangements common in countries where commercial surrogacy is cheap, and legalised or unregulated.[8]

With this paper, I deal with concerns raised by the Surrogacy (Regulation) Bill, 2016 (‘2016 Bill’) and certain exclusions made by it. Part II of the paper deals with commercial surrogacy in India- from a 2008 Supreme Court (‘SC’) judgement to its recent proposed ban. Part III proposes that surrogacy contracts entered into by the commissioning parents and the surrogate, which are valid according to the Indian Contract Act, 1872 (‘The Act’), should be enforceable. “Legal silence” concerning surrogacy contracts creates difficulty lest questions of parentage arise. With increasing globalisation of assisted reproductive technologies and social understanding of surrogacy, its legalisation, with primary focus on granting enforceability to surrogacy contracts, is the need of the hour.[9]

1. COMMERCIAL SURROGACY IN INDIA

The primary Indian case on surrogacy, Baby Manji Yamada v. The Union of India[10] (‘Baby Manji’), confirmed the legality of surrogacy in India and recognised the country as a “surrogacy destination”.[11] Baby Manji was followed by The Assisted Reproductive Technologies (Regulation) Bill, 2010 which gave legal rights to couples as well as individuals to enter into valid and enforceable surrogacy contracts.[12] The 2014 Draft Bill restricted the meaning of ‘commissioning couple’ to “an infertile married couple”[13] and of a ‘couple’ to “… a male and a female person who live together … in the nature of marriage which is legal in India”[14]. The 2016 Bill further restricts the legality of surrogacy to altruistic surrogacy, prohibiting commercial surrogacy.[15] A joint reading of Sections 2(g) and 2(r) indicates that singles, live-in partners and homosexual couples have no right of surrogacy.[16]

• LEGAL RECOGNITION TO SURROGACY CONTRACTS: A PROPOSED SOLUTION TO THE PROBLEMS ASSOCIATED WITH COMMERCIAL SURROGACY

The leading case challenging the validity of surrogacy contracts is In re Baby M. It stated that surrogacy contracts are against public policy since they don’t consider the “best interests of the child” and attempt to separate the child from its natural mother.[17] The unenforceability of surrogacy contracts was justified on the grounds that surrogacy treated humans as a ‘commodity’ being sold.[18]

In the absence of a specific legislation governing surrogacy contracts, they can be subject to The Act which lays down free consent, competency, lawful object and consideration to be the essentials of a valid contract.[19] The principle of ‘freedom of contract’ allows every individual to set the terms of the contract and to choose the party to contract with.[20]

1. FREE AND INFORMED CONSENT

The Act focuses on ‘consensus ad idem’[21] and requires consent to be free from coercion, fraud or undue influence.[22] The principal argument against commercial surrogacy is the “exploitation of the poor by the wealthy”[23] and becomes problematic for India where most surrogates are illiterate and enter into these agreements without profound knowledge of risks associated. The exploitation argument can be rebutted on the grounds of ‘informed consent’, defined as “a person’s agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives.”[24] The question of exploitation doesn’t arise if the parties to the contract give an informed consent free of duress or undue influence.

Free and informed consent also solves the problem of unconscionable or unequal bargaining power, arising when “economically inferior” surrogates form such contracts for “monetary temptations”.[25] Unequal contracting power renders the contract unenforceable, but is not reason enough to ban commercial surrogacy altogether. I propose that a formal procedure should govern contract formation between the parties and that, it should be made sure that the surrogate is placed at an equal power to negotiate the terms of the contract and decide upon the monetary consideration. The proposed ban on ‘commercial surrogacy’ is based upon the flawed assumption that all commercial surrogacy agreements are entered into for monetary consideration and neglects the fact that for many women, it may be “a deliberate and thoughtful act of generosity”.[26]

1. LEGAL INTENTION

Common law jurisdictions stress upon the requirement of ‘intention to create legal relations’ while entering into a contract.[27] A surrogacy contract clearly describes what the intention of the parties is and can effectively “establish procreative behaviour and legal parentage”[28]. The California SC in Johnson v. Calvert combined “intent test” with “but-for test” to hold that the child, whose custody is in dispute, would not have existed but for the intending couples.[29] The intention test also protects the rights of surrogates by giving legal custody to the intending parents even if they later change their mind or refuse to accept the child due to abnormalities or deformities.[30]

Legal intention test gives the equal ‘right to parent’ without “gender, marital or sexual-orientation biases”.[31] The SC in Baby Manji said, “…the intended male parent may be a single male or a male homosexual couple”.[32] The 2016 Bill clarifies that the purpose of surrogacy is to confer the right to rear a child to infertile couples. A criticism of the 2016 Bill is that it takes a conservative approach by restricting surrogacy to married heterosexual couples.[33] ‘Infertility’ can be categorised into functional infertility- the inability to reproduce for medical reasons; and structural infertility- inability to reproduce without the assistance of another, common in singles and homosexual couples.[34] The 2016 Bill targets functional infertility but provides no solution for structural infertility.

Criminalisation of homosexual relationships makes surrogacy among them more difficult and debatable. The sociological perspective challenges the existing binary gender roles and stereotypes; it has been proven that the sexual orientation of parents does not affect children.[35] I favour the contract law approach because it will prevent the courts reinforce ‘heterosexism’ in the private sphere of marriage and family.

1. LAWFUL OBJECT AND PUBLIC POLICY

One of the primary arguments against commercial surrogacy is that it treats the child as a ‘commodity’ being exchanged for money. It is argued that the absence of a “lawful object” makes surrogacy contracts void.[36] The fact that the surrogate mother receives a monetary consideration for her services does not make the child a commodity. The end result of childbirth, adoption and surrogacy is the same and the responsibility of a parent towards its child will be alike irrespective of the means used to achieve it. Every child is unique and has an intrinsic value of its own; therefore, should not be treated as an object of trade.[37] Further, in commercial surrogacy, the child conceived in the womb of a surrogate is usually genetically linked to the intending couple.[38] The argument of ‘selling of babies’ doesn’t arise since the intending parents are the genetic and hence, the legal parents.

Another argument can be that the ‘object’ of the surrogacy contract is not the child but the right accruing in favour of the intending couple to parent and nurture the child by paying consideration.[39] With this, the argument that surrogacy contracts are void due to unlawful object doesn’t stand.

After arguing under these heads, it can be said that if the contract formation takes steps to prevent inequality of bargaining power and considers the welfare of the child as its primary concern, it will not violate public policy[40] and should thus, be valid and enforceable by law.

1. CONCLUSION

Two core problems associated with surrogacy: the exploitation of the surrogate mother and the ‘commodification’ of children have been challenged in this paper using contract law principles; the former, by relying on ‘free and informed consent’ and the latter, on the ground that the basis of surrogacy is the right created in favour of intending parents. Furthermore, contractual relations are based on mutual benefits; surrogacy contracts that fulfil the requirements of a valid contract must be deemed enforceable. Contract law approach disregards the reinforcement of the traditional nuclear family and prevents encroachment into an individual’s private sphere. A liberal approach towards surrogacy contracts, taking into consideration the human rights of every individual; and regulated surrogacy, prohibiting illegal means to achieve the same, are needed.

[1] Black’s Law Dictionary (10^th ed., 2014).

[2] Jwala D. Thapa, The ‘Babies M’: The Relevance of Baby Manji Yamadav v. Union Of India (Uoi) and in the Matter of Baby “M”, available at http://docs.manupatra.in/newsline/articles/Upload/B2DC0190-6995-4560-A6E0-6B65B4895120.pdf (Last accessed on July 29, 2017); See Anil Malhotra & Ranjit Malhotra, Law And Surrogacy Arrangements in India, 2013 International Survey of Family Law 151 (2013).

[3] Yehezkel Margalit, In Defense of Surrogacy Agreements: A Modern Contract Law Perspective,

20 William & Mary Journal of Women and the Law 423 (2013-2014).

[4] Mrinal Vjay, Commercial Surrogacy Arrangements: The Unresolved Dilemmas, 3 UCL Journal of Law and Jurisprudence 200 (2014).

[5] B. K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 AP 126. See supra note 4.

[6] The Constitution of India, 1950, Art.12.

[7] Eisenstadt v. Baird, 405 U.S. 438 (1972).

[8] Izabela Jargilo, Regulating the Trade of Commercial Surrogacy in India, 15 International Business and Law 337 (2015-2016).

[9] Margalit, supra note 3.

[10] Baby Manji Yamada v. The Union of India, 2008 13 SCC 518.

[11] Abhiraj Thakur, Surrogacy Contracts and The Indian Contracts Act, June 28, 2016, available at https://blog.ipleaders.in/surrogacy-contracts-indian-contracts-act/#_ftnref21 (Last accessed on July 29, 2017).

[12] The Assisted Reproductive Technologies (Regulation) Bill, 2010, §34(1).

[13] The Assisted Reproductive Technology (Regulation) Bill, 2014, §2(h).

[14] The Assisted Reproductive Technology (Regulation) Bill, 2014, §2(i).

[15] Surrogacy (Regulation) Bill, 2016, §4(ii)(b); Surrogacy (Regulation) Bill, 2016, §4(ii)(c).

[16] Surrogacy (Regulation) Bill, 2016, §2(g); Surrogacy (Regulation) Bill, 2016, §2(r).

[17] In re Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 1988); Thapa, supra note 2.

[18] Margalit, supra note 3.

[19] Indian Contract Act, 1872, §10.

[20] Nilima Bhadbhade, The Indian Contract and Specific Relief Acts, Vol II 229 (14^th ed., 2012).

[21] Indian Contract Act, 1872, §13.

[22] Indian Contract Act, 1872, §14.

[23] Vijay, supra note 4.

[24] Black’s Law Dictionary (10^th ed., 2014).

[25] Margalit, supra note 3.

[26] Vijay, supra note 4.

[27] Ewan McKendrick, Contract Law : Text, Cases and Materials 273 (4^th ed., 2010).

[28] Anne R. Dana, The State of Surrogacy Laws: Determining Legal Parentage for Gay Fathers, 18 Duke Journal of Gender Law & Policy 353 (2010-2011).

[29] Johnson v. Calvert 851 P.2d 776 (1993).

[30] Dana, supra note 28.

[31] Id.

[32] Baby Manji Yamada v. The Union of India, 2008 13 SCC 518.

[33] S. 2(r), Surrogacy (Regulation) Bill, 2016.

[34] Dana, supra note 28.

[35] Id.

[36] Indian Contract Act, 1872, §23.

[37] Vijay, supra note 4.

[38] George W. Harris, Surrogacy, Patriarchy, and Contracts, 6 Public Affairs Quarterly 255 (1992).

[39] Id.

[40] Indian Contract Act, 1872, §23.