'You Can Use My Uterus'- New Horizons of Law Relating to Surrogacy
National Law University, Orissa (NLUO) at Cuttack
affiliation not provided to SSRN
November 20, 2011
Mothers have been considered symbolic of god and the misfortune of childlessness cannot be elucidated. The problems in conceiving forced women to think of an alternative and started the whole business of surrogate mothers. Surrogacy has been the centre of burning debates and has received arguments for and against its legalisation. With the advancement of technologies, gestational surrogacy has been possible where the partner’s sperm is implanted into surrogate’s uterus. Surrogacy is presumably considered legitimate because no Indian law prohibits surrogacy. But this silence of law can obviously not be interpreted as a green signal for any future surrogacy arrangement. However, the changing face of law is now going to usher in a new rent-a-womb law as India is set to be the only country in the world to legalise commercial surrogacy by virtue of Assisted Reproductive Technology Bill, 2010. This paper is a humble attempt to discuss the pros and cons of the bill and it also puts forward few contentions of recognising/legalising surrogacy contracts in the country.
Jeremy Bentham looked upon ‘law’ as an instrument for securing the “greatest good of the greatest number”. Surrogacy is becoming a practice to earn. The paper also sheds light on how the intended parents are established as the legal parents of the child. Surrogacy is a boon or a bane? This controversial question is the spotlight of the 228th Law commission Report on which this paper focuses upon.
This paper will address the need for legalization of surrogacy from the perspective of fundamental right. Surrogacy has inscrutable impact on the primary unit of the society i.e. family, and therefore, connivance of Law about this knotty issue may prove to be a regrettable step in the future. The paper also submits that if the society allows organ donation, blood donation, wet nursing and other such analogies then why not surrogacy? In my opinion this issue of use of new reproductive technology must be dealt with meticulously by the legislature of our time and reluctance about legalising surrogacy must be relinquished.
Keywords: Surrogacy, Assisted Reproductive Technology Bill, 2010, Jeremy Bentham, 228th Law commission Report, fundamental right
Date posted: November 21, 2011