Category: Surrogacy

In today’s society, family and relatedness come in many different forms. The family unit has become much more complex due to a range of factors. One factor being new reproductive technologies. New reproductive technologies have been introduced in order to facilitate, prevent or otherwise intervene the process of reproduction. These technologies are used in human and animal reproduction, including artificial insemination, cloning, contraception and IVF.

The traditional family has always been considered as being physically related through biological ties such as blood, genes and DNA. However, relatedness can be affected by social ties, affinal ties and even legal ties. Supporters of the genetic theory believe that genes and genetic information is transmitted from both parents to their offspring making them biologically related and seen as ‘family’. Furthermore, the hematogenic theory divides males and females, regarding males as ‘superior’ with higher blood heat and women as ‘inferior’ with lower body heat. This theory links relatedness to the parents from blood; the male’s blood is transformed into sperm while the females blood is transferred into menstrual blood and milk. It suggests that the embryo is formed by the mother’s ‘raw matter’ menstrual blood and the father’s sperm which provides raw matter form and a soul. The male’s ‘raw matter’ is an active agent of generation and the females ‘raw mater’ of menstrual blood and the mother’s milk are passive nourishing substances. People view themselves as mutually related because they share a common substance, making them kin. ‘A system of social ties based on acknowledging genealogical relations”, (Holly, 1996) defines kinship. Kinship can be determined depending on the common substances that relate individuals. Individuals who share substances such as blood, bone or semen, determine ‘nature kinship’ and those who share substances of food and milk determine ‘nurture kinship’. In addition, we can group those we recognise as kin into consanguines (related by blood) and affines (related by marriage).

Infertility is a condition of the reproductive system that prevents the conception of children, one in 4 U.S couples have difficulty getting pregnant as a result of 40% female factors, 40% male factors and 20% a combination of both. Infertility is a devastating issue that many couples have to face, and this problem has increased in recent years. Take China for example, infertility rate was at 1-3% in the early 1980’s but at present day, China’s infertility rate is at 8-10%. In relation to the increasing infertility rate, the number of assisted reproductive technology centres registered with the Ministry of Health have also increased; as there were only 5 in 2001 but within a few years these numbers had increased to just over 2000 in 2009. In efforts to relieve the devastation and anxieties caused by infertility, New Reproductive Technologies (NRT) have been presented as a solution. One of the main NRT used is In Vitro Fertilisation (IVF), IVF is the process of removing a woman’s eggs from her ovaries to be fertilised with a sperm, this is done in a laboratory. Once fertilised, the embryo is returned to the woman’s womb where it will grow and develop, creating a baby. Another form of the New Reproductive Technologies is surrogacy, there are two types of surrogacy; traditional surrogacy and gestational surrogacy. Traditional surrogacy is when the surrogate mother’s own eggs are used for the creation of the child that she will carry on behalf of intended parents or individual, in this case the sperm used to create embryo may be the intended father’s or donor sperm. Gestational surrogacy is when the surrogate mother has no genetic relationship to the child that she is carrying. An embryo created with the intended parent’s eggs and sperm or from either egg donor or sperm donor will be transferred into the surrogate’s mother’s womb. These processes are can dramatically change people’s lives by giving them the opportunity to expand their family and continue their lineage, due to numerous successful cases, more and more families who desire to expand their family with a child but are unfortunately are unable to turn to NRT. ‘The Lovely Louise’ was the first ever successful ‘test tube baby’, born in Great Britain in 1978, the new reproductive technologies had advanced to produce its very first child as a result of in vitro fertilization (IVF). Since then, the ‘Lovely Louise’ is now one of 8 million ‘test tube babies’. IVF is a reproductive technology under high demand, in the UK alone, 60,000-70,000 IVF treatments are performed each year. However, while IVF have presented many families with the gift of new life into their families there have also been extreme cases due to mix-ups. For example, in 2013, a mix-up in a fertility clinic in Italy resulted in a custody battle over twin babies who were accidently implanted into the wrong mother. This proves that the New Reproductive Technologies are not completely reliable or accurate just yet, also due to being relatively new there have not been enough examples in order to make rules for just scenarios. In this case of the mix-up in Italy, no one knew who should get custody, the biological parents or the mother who grew them inside her for 9 months, who protected them and loved them as she believed they were her own. This caused much unnecessary stress emotionally for both the biological parents and the birth mother.

These New Reproduction Technologies are very controversial. The NRT create biological and social complexities in relation to the concepts of kinship. They generate blurred lines in distinguishing between social and biological parenthood, (Taylor, 2005). In particular, certain cultures and religions have opposing views on new reproductive technologies as it confuses the status of relatedness. For example, the Muslim world have openly refused the advances of reproductive technologies because of their attitudes towards family formation which has been instructed by religious teachings. in Muslim religious groups, the notion of family is very special as biological descent and inheritance is extremely important. Therefore, many Muslims believe if an individual or couple experience infertility, that was god’s plan for them. Nasab which means lineage or blood relation is recognised to be one of God’s greatest gifts to his worshippers, and so it would be immoral to diminish the biological connection between parents and child. As a result of these teaching, gamete donation and adoption are prohibited as solutions to infertility in the Sunni Muslim World. However, these infertility solutions are now accepted in two Middle Eastern countries dominated by Shi’ite Muslim populations, Iran and Lebanon. Although accepted, most Muslim men continue to refuse both adoption and gamete donation due to the fact that Shi’ite beliefs consider adoption as morally illicit and semen donation is not accepted and so Shi’ite men argue that such child ‘won’t be my son’, (Inhorn, 2006). In the case of seeking to overcome infertility by these new reproductive technologies the adopted or donor child would be recognised as illegitimate which is highlighted in numerous Islamic scriptures emphasising that blood relations as the only basis for paternity. While donation of semen is not accepted in Shi’ite culture, egg donations are accepted under ‘mutca’, which is a ‘temporary marriage agreement’. This action affects the family formation as it intervenes with the sacred matrimony. ‘Mutca’ is a union between an unmarried Muslim woman and a married or unmarried Muslim man, those involved agree on a fixed period of time for the union and in return the voluntary Muslim woman receives economic compensation for their eggs and the temporary marriage – this is sealed with a contract, (Inhorn, 2006. Pg 19-20). In addition, the process of using New Reproductive Technologies in the Muslim world presents the question whether the child will be named after the ‘social’ father or the donar, and whose inheritance will they receive. The ‘purity of lineage’ in Muslim societies is very significant within their religious teachings and so many Muslim men feel very strongly against sperm donation as a means to fathering a child. Shaikh Khamanei, a Muslim man declared that he would rather not have a child at all than raise a child that was not his, claiming that it ‘complicate your life’. He also made concerns about how to behave around a female child when she turns 15/16 because he would be able to marry her as she is not his biological daughter. Therefore, he agrees that it would be very difficult to accept sperm donation.

In addition, surrogacy is another form of New Reproductive Technologies which offers infertile couples the gift of parenthood. Surrogacy is a complex and expensive technique, the donation of eggs is very a difficult, vexing and tiresome process which can put the donor at risk both physically and emotionally. A series of medical treatments must be carried out a month prior. Treatments involve hormonal stimulation to allow the donor to produce more than one ovum per cycle, then surgery must be carried out to remove their ova. The egg donor produces a different form of kinship and relatedness which has been described as moving away from a biologically understood genealogy. Egg donors donate genealogically meaningful parts of their bodies without reproducing genealogical bonds, (Orobitg & Salazar, 2005). It is very common of couples who turn to NRT as a solution to infertility to worry about the connection and relationship that they will develop with their intended child. Anxieties about developing ‘unconditional love’ and ‘special bond’ with their child can be very emotionally pressing. However, there is no guide for donors on how to deal with giving away the child that has been a part of her. A case study in a fertility clinic in Barcelona investigated this and tried to see NRT from their perspectives.

To conclude, the relationship between a child and their biological parents is considered ‘the basis of all kinship’, and the relationship between child and mother is seen as the ‘unique and irreducible source of all existence” (Fortes, 1978, p. 21). This concept may not be valued in some cultures, but kinship in the UK is based on reproductive ties, making children’s kin determined solely through their parents, (Taylor, 2005). However, the introduction of NRTs have altered this relationship dynamic. NRTs have broken down the biological bond of ‘motherhood’ which results in the uncertainty about what ‘motherhood’ actually is. Furthermore, NRTs have also caused vagueness about the role of ‘fatherhood’. In certain cases of NRTs were the father of the child is not biological, there is concerns regarding whether the child takes the father’s name and the inheritance of property. There is also a sense of ego destruction when it comes to social fathers as genetic parenthood carries a significant value, not only as evident of being ‘manly’ or ‘powerful’, but also in relation to kinship. However, while the introduction of New Reproductive Technologies has changed the roles of parenthood, as they were once obvious and inevitable, parenthood roles now require definition by law as new categories have been introduced such as ‘social’ parents and a ‘gestatory’ mother (birth mother). Although these roles can be divided into categories by law, clarifying kinship is more difficult. Some people have concerns that rather than being pro-family, NRT inclines towards anti-family as it dilutes the family relatedness and can cause confusion and weak bonds between parents and off-spring, (Grobstein & Flower, 1985).

As advances in artificial reproductive techniques progress, a myriad of possibilities become available for individuals around the world. As possibilities arise, many nuances arise as well, raising several ethical and moral concerns regarding such practices, gestational surrogacy being an eminent one. Recent statistics reveal that one in ten first world couples have difficulty conceiving naturally, and are now actively resorting to other methods of conception. The practice of surrogacy services an integral role for couples wanting genetically related offspring, as well as for women who are actively delaying the process of children rearing in the face of demanding professions and industries. Surrogacy continues to stand as an important option for individuals around the world who hope to start a family and have genetically related offspring of their own.

However, as the practice of surrogacy becomes commercial as well as global and it has crossed borders into many developing countries, where the ethical and moral complexities are too pressing to ignore. With international laws and regulations lacking in this area, perhaps the cry for a more unified legal framework concerning the area of commercial surrogacy is the loudest.

Surrogacy is the gestation of a baby by one woman for another. Although this process may seem simple, its evolution in today’s society and growing ethical implications are nothing short of complex. A gestational surrogate would then become the individual in which the embryo, usually created using the egg and the sperm of the contracting parents, is implanted. This process can most usually be described as altruistic surrogacy or commercial surrogacy. Altruistic surrogacy is usually carried as an act of kindness, in the name of friendship, kinship, or other ties. On the contrary, commercial surrogacy is a reimbursed process in which the gestational mother is paid for her services and although she may still carry out the process for many of the reasons that altruistic surrogacy occurs, the payment is assumed to be an incentive behind her actions. Studies carried by Perkins et al., indicate that the use of gestational surrogacy has continued to increase in the United States from 1999 to 2013. Due to the increasing use of surrogacy and the nature of the process, many ethical considerations color the way in which present legal framework nuances may be further understood. The surrogate mother must endure significant health alterations as well as psychological burdens in this process. Furthemore, the correction and informed consent are imperative considerations that must be kept in mind. Although surrogacy leads couples around the world into parenthood it is imperative to realize at what cost.

As medical tourism has increased the usage of commercial surrogacy has grown along with it. Understanding the process of commercial surrogacy lies in better understanding the patterns behind it, as many countries are transforming into international hubs of commercial surrogate hunting. Countries such as India and Thailand have become global hot spots for many couples around the world, particularly those belonging to first world countries. The commercial surrogacy industry is worth $125 million dollars in Thailand alone, followed by India, the largest fertility tourism destination world, was valued at $449 million dollars in 2006. Although the practice of Commercial Surrogacy is illegal in many countries around the world, such as the UK, France, Norway, and Italy it remains to be legal within the United States with only a few jurisdictions. Despite its being it remains to be a luxury only the wealthy can afford.

Introduction

Advisory opinions in the world over, have been appreciated and acknowledged as an important source of law[footnoteRef:1], especially in the verge of jurisprudential development. Legal practitioners, diplomats and policy makers in Europe and beyond are agreeable to the fact that the precedents emanating from the European Court of Human rights has contributed positively towards the development of not only the human rights regime in Europe but also the practice of public international law[footnoteRef:2]. [1: Hambro, E. (1954). The authority of the Advisory Opinions of the International Court of Justice. International & Comparative Law Quarterly, 3(1), 2-22.] [2: Gerards, J. (2014). Advisory Opinions, Preliminary Rulings and the New Protocol No. 16 to the European Convention of Human Rights: A Comparative and Critical Appraisal. Maastricht Journal of European and Comparative Law, 21(4), 630-651.]

The force that accompanies advisory opinions of domestic courts differ from one jurisdiction to another. Some states hold that advisory opinions from their courts of last resort, especially on important and contentious constitutional and human rights issues have a conclusive force, while others; majorly common law postulate that they only guide other courts and policy makers in arriving at decisions.

Most advisory opinions of the European Court of Human rights, just as other regional and international courts have often been adopted, noted or acted upon by the states involved[footnoteRef:3]. The general acceptance of advisory opinions especially on human rights questions behooves states to understand and observe the same as a principle of good practice[footnoteRef:4]. [3: Marks, S. (1995). Civil liberties at the margin: the UK derogation and the European Court of Human Rights. Oxford J. Legal Stud., 15, 69.] [4: Stark, B. (2011). Transnational surrogacy and international human rights law. ILSA J. Int’l & Comp. L., 18, 369.]

The European Court of Human rights is under an obligation to facilitate the compliance with the European Convention of Human rights and its protocols[footnoteRef:5]. Whenever parties are eager of obtaining an interpretation of Convention, they often seek an advisory opinion in line with Articles 47, 48 and 49 of the Convention[footnoteRef:6] as read with the Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms[footnoteRef:7]. [5: Article 19] [6: All which point out that advisory opinions may only be sought by Committee of Ministers,] [7: That allows Highest courts and tribunals of High Contracting Party]

The French court sought the ECtHR’s opinion on the recognition in domestic law of the parent-child relationship between a child born of gestational surrogacy practiced abroad and the intended mother. The general procedure is that, once filed, these references are they are heard and determined by the Grand Chamber, who then deliver a decision through the Registrar.

The European Court of Human rights in pursuance of its jurisdiction under the Charter and the rules, recently rendered itself on the subject of domestic recognition of gestational surrogacy practiced in a foreign state at the request of the French court of Cassation. This essay shall address itself on the subject of gestational surrogacy and the effect of the European Court’s said recent pronouncement.

The advisory opinion sought from the court however did not transfer the determination of substantive determination of the suit before the Court of Cassation but was an action to assist it with the means and thoughts to guarantee the observance of the convention. The court therefore observed that the effects that may follow the opinion would be largely determined by the party which requested for it. The ECtHR does not compel the French Court of Cassation to take any particular action out of its advisory opinion. The opinion is meant to merely guide the applicant court.

This research thereby finds that the opinion by ECtHR’s has a persuasive force to governments and the Union in enforcing the provisions of the charter. The practice of parties is that they have often referred cases of such nature to the Court in order to have a more persuasive background when rendering their domestic decisions relating to the interpretation of the Convention. Therefore, both the Slydavian and Bordurian government are hereby advised that the case is not binding, but is most likely to be applied in its court as a persuasive precedent, and may to that extent be deemed binding as those of the International Court of Justice[footnoteRef:8]. It would therefore be useful to study and analyze the rationale thereof in order to align the respective governments to the existing world order. [8: Ago, R. (1991). “Binding” advisory opinions of the International Court of Justice. American Journal of International Law, 85(3), 439-451.]

The 10th April decision would still be subject to review, and may be dissented upon

Gestational Surrogacy, an introduction

Gestational surrogacy has indeed had an impact on gender issues. This is because it goes beyond the traditional concept of family where a person may only attain the title mother or father through sexual intercourse and heterosexual families’ adoption[footnoteRef:9]. The family law regime that was in question before the ECtHR was the recognition of 3 parties, namely- the intended father, the intended mother and the surrogate mother[footnoteRef:10]. [9: Hofman, D. L. (2009). ‘ Mama’s Baby, Daddy’s Maybe:’ A State-by-State Survey of Surrogacy Laws and Their Disparate Gender Impact. William Mitchell Law Review, 35(2), 13.] [10: supra 31]

Since the surrogate only acts as the gestational mother of the child, the law as applicable in a number of EU states have no difficulty with recognizing the ‘intended father’ as the legal father but in a somewhat discriminative fashion, prohibits the recognition of a an intended mother as the legal mother and the transcription thereof in the child’s certificate.

This may as well be construed as a discriminative law that offends the provisions of the Convention on the Elimination of All Forms of Discrimination against Women in order to eliminate social and cultural stereotypes on differential treatment against women[footnoteRef:11]. The court was however not invited to consider this argument, and it therefore didn’t. Had this been analyzed alongside the best interest of the child, perhaps the opinion would have been different, as may have been the position in the dissenting opinion of the 6 justices in Paradiso and Campanelli v. Italy. [11: Bala, N. (2014). The Hidden Costs of the European Court of Human Rights’ Surrogacy Decision. The Yale Journal of International Law Online, 40, 11-19.]

Solutions beyond recognition

The court in its opinion provided an alternative to the recognition of parent- child relationships of children borne out of foreign gestational surrogacy, in view of the domestic laws. The court alluded to the alternative that exists; that is adoption, either full adoption, or simple adoption depending on the couple’s nature and preferences. These would however not be available to same sex marriages in a number of jurisdictions. Whereas gestational surrogacy would only be permissible amongst heterosexuals, the idea of medically assisted procreation would still operate to facilitate gestational surrogacy, so as to say that there are no alternatives to non-married couples.

There are a number of situations where a partner in a marriage has suffered infertility, or due to some complication, they are not able to give birth . This mechanism is conventionally also preferred by single parents, same sex couples or families as a precautionary measure against social problems associated with genetic links of their children to the surrogate mothers[footnoteRef:12]. [12: Tieu, M. M. (2009). Altruistic surrogacy: the necessary objectification of surrogate mothers. Journal of Medical Ethics, 35(3), 171-175.]

For such families, their greatest desire is not only to have a child, but also to be recognized as the child’s parents. Gestational surrogacy however acceptable in a number of states within the European Union, is prohibited in a number and tolerable in some[footnoteRef:13]; for both moral and economic reasons that may arise. In the verge of the international doctrine of friendly relations and accommodation, the European Union is however yet to formulate a standard regulative mechanism for its member states. Regulation is therefore entirely dependent on domestic legislation. [13: Boele-Woelki, K. (Ed.). (2003). Perspectives for the unification and harmonization of family law in Europe (Vol. 4). Intersentia nv.]

Article 8 of the European Convention of Human Rights encapsulates the right to respect for private and family life[footnoteRef:14]; which provision has elicited an interpretation to encompass the recognition of a parent- child relationship in a cross- border gestational surrogacy situation. States have endeavored to observe their obligations under the Convention, and they have in such circumstances sought the European Court of Human Rights’ opinion as to the extent in given situations. [14: Kilkelly, U. (2003). The right to respect for private and family life. A guide to the implementation of Article, 8.]

This essay has analyzed the basis of the European Court of Human Rights’ advisory opinion rendered at the request of the French court of last resort[footnoteRef:15] with respect to recognition of a parent- child relationship between a gestational surrogacy- born- child exercised abroad and the intended mother; this is to say; to analyze the possibility of obtaining recognition of the parent- child relationship with a child resultant of a gestational surrogacy practiced outside the prohibiting state; and its relevance to either states. [15: French Court of Cassation ]

Foreign law and reciprocity

States are often reluctant to accept external interference with its systems. States are often desirous of being governed by the laws of their laws, but may in given times give a reciprocal observance of foreign laws of countries who reciprocate by observing their own domestic laws

For states which have prohibited the practice of gestational surrogacy, some have either become tolerant while the rest absolutely intolerant and even avoid giving regard to the those that result from foreign practice. For those who permit it, they have either made it so in their legislations or adopted it by way of practice. In any event, states have often taken a domestic approach towards gestational surrogacy.

The court has adopted a somewhat uniform approach on the issue.In Mennesson v. France (no. 65192/11, ECHR 2014) about gestational surrogacy allowable in the USA but abhorred in France and the French government declined to recognize it. This was also the position in D. and Others v. Belgium ECHR 252 (2014) between Belgian and Ukrainian domestic laws; where the Belgian government declined to recognize the Ukrainian practice[footnoteRef:16] [16: Kirshner, S. N. (2015). Selling a Miracle: Surrogacy through International Borders: Exploration of Ukrainian Surrogacy. J. Int’l Bus. & L., 14, 77.]

As an international practice, states would have been expected to apply the reciprocity doctrine where states would ordinarily observe and allow a practice that has been considered sound by a neighboring or partner state[footnoteRef:17]. However, it is evident that with respect to gestational surrogacy, the diverse practice by states has always been to have a position with respect to recognition of gestational surrogacies practiced abroad[footnoteRef:18] [17: Levine, J. (2017). The plight of international child support enforcement. Child & Family Social Work, 22(2), 617-625.] [18: Sills, E. S. (Ed.). (2016). Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues. Cambridge University Press.]

Application of International Law

As a regional court, the ECtHR applied a number of conventions which informed its decision. The exercise of judicial authority of the court stems from Article 31 of the ECHR which gives it power to interpret and apply conventions and protocols, and just like other human rights’ courts, its decisions are applied in Europe and beyond in both binding and persuasive nature[footnoteRef:19]. [19: Nowak, M. (2018). A World Court of Human Rights. International Human Rights Institutions, Tribunals, and Courts, 271-290.]

The following are some of the Conventions observed by the ECtHR in rendering its opinion of 10th April 2019:

Convention on Rights of the Child (CRC)

The CRC is the most effective and comprehensive human rights’ treaty on the protection of the welfare and interest of a child[footnoteRef:20]. The ECtHR opinion addressed itself on the rights of a child against discrimination[footnoteRef:21], the right to live with their parents and only separated in extreme circumstances[footnoteRef:22]and the obligation of government to provide support to parents in delivering their parental responsibilities. [20: Detrick, S. (1999). A Commentary on the United Nations Convention on the Rights of the Child. Martinus Nijhoff Publishers.] [21: Article 2] [22: Doek, J. (2006). A Commentary on the United Nations Convention on the Rights of the Child, Articles 8-9: The Right to Preservation of Identity and The Right Not to Be Separated from His or Her Parents. BRILL.]

The court further applied Articles 1 and 2 of the Optional Protocol on the sale of children, child prostitution and child pornography with respect to upholding the prohibition on the transactional dealings and sale of children. In sum, the court appeared though not out rightly, to adopt the school of thought that opines that surrogacy is purely commercial[footnoteRef:23]. [23: Smolin, D. M. (2015). Surrogacy as the Sale of Children: Applying Lessons Learned from Adoption to the Regulation of the Surrogacy Industry’s Global Marketing of Children. Pepp. L. Rev., 43, 265.]

The court further made a finding with respect to the contradicting US and France’s position on recognition of the mother, as undermining the child’s identity within the French society.

Hague Conference on Private International Law

The Court applied itself in recognizing the works that have from time to time been ongoing at the Conference, with the view of formulating and administering a treaty that would be acceptable amongst states. This may explain why the court stated that it may in future be called upon to develop its jurisprudence in the subject in view of the evolution of gestational surrogacy[footnoteRef:24] [24: Pertegás, M. (2017). Hague Conference on Private International Law. In Encyclopedia of Private International Law (pp. 871-875). Edward Elgar Publishing Limited.]

In the futuristic sense, should a treaty be negotiated, concluded and signed, the basis of the court’s opinion is likely to change.

·European Convention on Human Rights and protocols thereto

The ECtHR while rendering its opinion observed Article 8 that guarantees the right to respect private and family life. The opinion was sought on the basis of the refusal of French state to transcribe ‘legal mother’ the legal mother in the civil registry the birth certificate of a child borne abroad.

Whereas Article 8(1) guarantees the right, 8(2) permits a public authority to interfere with it in accordance with the law when necessary in a democratic society[footnoteRef:25] for the sake of the protection of inter alia health and morals and the rights and freedoms of others as was observed by the court in the case of Foulon and Bouvet v.France[footnoteRef:26] and Laborie v. France, no. 44024/13. The courts have applied the said provision while also upholding the right. [25: Mowbray, A. (2015). Subsidiarity and the European Convention on Human Rights. Human Rights Law Review, 15(2), 313-341.] [26: Storrow, R. F. (2018). International Surrogacy in the European Court of Human Rights. NCJ Int’l L., 43, 38.]

The Concept of the best interest of the Child

The best interest of the child must be given the primary consideration[footnoteRef:27] whenever states and other administrative bodies make decisions which have an effect on the child. Therefore, the decisions of bodies such as the ECtHR are supposed to ensure that the best interest of the child is given due regard. Cross border gestational surrogacy has faced a wide array of challenges. [27: Zermatten, J. (2010). The best interests of the child principle: literal analysis and function. The International journal of children’s rights, 18(4), 483-499.]

Courts in other jurisdictions outside France have held that in situations of cross- border gestational surrogacy, that the best interest of the child demands that the child’s registration certificate be indicative of the intended mothers as the legal mothers, notwithstanding the difficulties in those jurisdictions[footnoteRef:28]that do not recognize artificial manipulation of genetics and the lack of verification of the fact of delivery.[footnoteRef:29] [28: Such as Japan] [29: Suzuki, K., Hoshi, K., Minai, J., Yanaihara, T., Takeda, Y., & Yamagata, Z. (2006). Analysis of national representative opinion surveys concerning gestational surrogacy in Japan. European Journal of Obstetrics & Gynecology and Reproductive Biology, 126(1), 39-47.]

In Campanelli v. Italy, the concept of the child’s best interest was restated as important, and that a number of considerations need to be put to consider that which the child’s best interest is. The court acknowledged that it was quite complex to uphold the best interest of the child whenever a foreign jurisdictional element was involved.

The Court was reluctant to deprive the child of the genetic relationship with its mother, and thereby destroying the biological relationship and as a result opined that the child’s best interest would demand that the child ought to have been allowed to know his or her biological link as was in Schlittner-Hay v. Poland (nos. 56846/15 and 56849/15). Further, in considering the best interest of the child, the court has taken an approach in laying emphasis on whether Article 8 of the ECHR ought to be accorded an interpretation that takes cognizance of the child’s right to recognition of the link between a child and the intended mother.

The best interest of the child would dictate that the child’s right to privacy be considered and upheld together with other fundamental elements that offer protection to the child but nonetheless are not in favour of the recognition of the child- parent relationship with the intended mother[footnoteRef:30]. All these operate to prevent any instances of abuse, and manipulation of the child as a result of gestational surrogacy on the possibility knowledge of the child of his origin as guaranteed by the CRC, as was hailed by the court in Mikulić v. Croatia, No 53176/99. [30: Goldstein, J., Freund, A., & Solnit, A. J. (1986). Before the best interests of the child. Simon and Schuster.]

The court whilst applying the above standards, upheld the child’s right to knowledge of the person responsible for raising him, meeting his needs and ensuring his well-being[footnoteRef:31]. It ultimately left this at the discretion of the state in providing an opportunity for the recognition of parentage before the child is legally designated a birth certificate, and thereby agreed to the need of robust domestic legislation, the presence of which, it refrained from interfering. While doing so, it attempted to balance a state’s discretion in making regulation on this, but in view of the best interest of the child, it reduced the state’s margin of discretion[footnoteRef:32] it therefore established that the concerned state would analyze and assess whether it would be necessary to issue a foreign birth certificate. [31: Goldstein, J., Freund, A., & Solnit, A. J. (1984). Beyond the best interests of the child (Vol. 1). Simon and Schuster.] [32: Fenton-Glynn, C. (2017). International surrogacy before the European Court of Human Rights. Journal of Private International Law, 13(3), 546-567.]

It therefore did not find any reason to hold that in the situation before it, there was a violation of Article 8 as the limitation thereof was to be considered on a case to case basis, which inclined towards permissible limitation under Article 8(2). It further therefore held that Article 8 does not require that the recognition does not make it necessary to transcribe such details, as there were other alternatives means of recognition.

With respect to other related rights, it was trite to the Court that from recognition of parenthood was the right to knowledge of one’s origin, the right to a nationality and the right to access of registration documentation[footnoteRef:33]. This argument would tilt towards allowing the recognition by transcribing on the register, but would nonetheless requiring a domestic legal framework for the action. [33: Kelly, J. B. (1997). The best interests of the child: A concept in search of meaning. Family Court Review, 35(4), 377-387.]

Conclusion and Recommendation

In view of the forgoing authorities as have been analyzed, it is therefore evident that the ECtHR has taken a hard stance against applying the ECHR against the domestic legislation of a state party to the EU. Particularly, where there is an allegation of violation of the Convention, a party so claiming must prove that the tenets of the violation are quite outright, unjustified and unnecessary. In the ECtHR’s notice and advisory opinion, it is clear that the same was not advanced or proved to the satisfaction of the court. The justification of the governments’ decision not to recognize parent- child relationships between the mothers and children resultant of a procedure prohibited in their laws, is purely in keeping up with their respective state sovereignty.

The Court took note of the region’s attitude towards the subject, finding that most European states (twenty four of the forty-three) had prohibited ‘foreign’ gestational surrogacy; while a minority (nine of the forty-three) permitted it in their laws, and with ten tolerating the practice. This should guide both governments of Slydavia and Bonduria in appreciating their stances on the subject, as members of the Council of Europe and the EU.

For the Slydavian government particularly, with its domestic laws prohibiting the practice, the Notice in effect requires of it to establish a justification as the basis of such prohibition; without which it is deemed to be in violation of the convention. The idea of adoption being alive in the state to the exclusion of same sex couples, may result into a dispute alleging violation of the Convention. in such an event; and in view of the precedence as hereinabove outlined, the court is likely to find fault. This is not to say that the Court may be persuaded to find otherwise as the court has often taken a case- by- case analysis of disputes brought before it.

The practice having been permitted in Bonduria, the impact is that a mother who is recognized as a parent of a child resultant of gestational surrogacy practiced in another state may not equally be accorded such recognition in Sydavia. The Bondurian government is therefore at a better position in negotiating with the view of persuading the Slydavian government as has previously been done. Owing to the fact that twelve out of the twenty-four European states that prohibit the practice allow for adoption, the Slydavian government may as well allow adoption even to same sex couples. This would build strong and peaceful relationships between the states, which, as the Court had contemplated, go ahead in establishing a uniform position on the subject amongst states.

The above notwithstanding, as it is presently, both states are still bound by their domestic legislation and are at liberty to consider the accommodative approach that has been taken by a number of states, who tolerate the practice. This would go a long way in facilitating good and uniform family law practices amongst European states.

References

1. International Treaties Convention on Rights of the Child
2. Convention on the Elimination of All Forms of Discrimination against Women
3. European Convention of Human Rights
4. Hague Conference on Private International Law
5. Hague Convention on Intercountry Adoption
6. Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms
7. Campanelli v. Italy
8. D. and Others v. Belgium ECHR 252 (2014)
9. Foulon and Bouvet v.France
10. Labassee v. France
11. Laborie v. France, no. 44024/13
12. Mennesson v. France (no. 65192/11, ECHR 2014)
13. Mikulić v. Croatia, No 53176/99
14. Paradiso and Campanelli v. Italy
15. Schlittner-Hay v. Poland (nos. 56846/15 and 56849/15).

Andersons argument for the wrongness of commercial surrogacy rests largely upon the idea that through surrogacy, both the women’s labor and the child the labor produces, are treated as a commodity, which devalues both said things (Anderson,1990). She presents the Kantian thesis against the ‘commodification of persons’ to support this stating ‘to fail to value things appropriately is to embody in one’s life an inferior conception of human flourishing’ (Anderson, p73, 1990). Further arguing that if a transaction occurs which involves something that it is not supposed to be commensurable (like a child’s life), then according to Kantian reasoning this transaction is immoral.

However, Wertheimer suggest a flaw in Andersons argument relating to her Kantian deductions. Stating that we make transactions all the time in life that involve commodities that may be described as incommensurable, but this does not always render the transaction immoral (Wertheimer,1992). He uses the example of memorabilia, to portray an object that has sentimental value to some and not as much to others (Wertheimer,1992). Further suggesting that transactions that could normatively be suggested to incommensurable can become commensurable through contracts and agreements through both parties in the transaction (Wertheimer,1992).

Which perhaps shows that as long as the transactions between the surrogate mother and the actual mother are agreed without moral guilt, the incommensurable women’s labor then becomes commensurable. However, it is arguably hard to equate the sentimental and moral value of pregnancy and a child, to that of memorabilia. Anderson further uses Kantian ethics in the explanation of why surrogacy is wrong, relating it to the wrongness of slavery. ‘In Kantian theory, the problem with slavery is that it treats beings worthy of respect as if they were worthy merely of use’ (Anderson, p72,1990). Kant says: “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only” (Kant, 1785).

Arguably in the case of commercial surrogacy women are treated as a means, to another person’s ends, which through Kantian deduction is wrong. However, this is not dissimilar to other paid labor jobs in society for example, when a fight fighter is sent into a blaze to rescue another person. Arguably the firefighter is used to a means to the social good of helping another person, but in this case, it would be wrong to say this degrades or devalue the practice of saving someone all together. The case of surrogacy can be regarded as a similar social good for society helping couples to have children, who otherwise way not be able to.

To conclude I would Andersons use of Kantian ethics in her discussion of commodities in commercial surrogacy can be deemed useful for its promotion of the awareness of humanity and the respect required for humanity in relation to surrogate mothers. However, the Kantian argument used by Anderson is not always tenable. For example, in relation to the opinion treating a human perceivably as a means in surrogacy is always wrong. This is because the service of surrogacy can be compared to other common social services to society that for example that of a person in the armed forces or the fire service which are essential for society. Additionally, it can be deemed argued that incommensurability of objects does not always lead to immoral transactions.

Surrogacy literally means substitute or ‘taking the place of someone else’. In the case of a surrogate mother, she carries a fetus and bears a child on behalf of another person or couple, having agreed to surrender that child to them at birth or shortly afterward. The act of one woman bearing a child for another is almost as old as childbirth itself, and it was mentioned in the bible. However, in the 1980s surrogacy became one of the most controversial forms of baby making. Technically it is very simple, but far more complicated legally and ethically (Downie, 1988). Before the contraceptive pill, abortion, and single mothers were accepted; unwanted pregnancies solved the childlessness for many infertile couples.

There are two unique kinds of surrogacy, the primary, straight surrogacy, is the place a surrogate mother has a kid for a couple, where the spouse of the couple is the hereditary dad of the youngster and the surrogate, the hereditary mother. The second is Host Mothering; this is the place a surrogate conveys the hereditary offspring of another person. This could be both the husband and spouse of the couple, then again, either of the hereditary guardians could be an unknown sperm or egg contributor. This technique is for the most part through IVF (in-vitro preparation). IVF implies treatment outside the body in a test tube. Since the introduction of Louise Darker, the primary unnaturally conceived child, conceived in 1978, IVF has brought about more than one million children around the world. Blessing (gamete intra-fallopian exchange system), is additionally now and then utilized in surrogacy cases. Blessing is a methodology where the eggs are blended with sperm and the blend is then infused into the Fallopian tube. The point of Blessing is to enable preparation to happen in the perfect spot and implantation at the opportune time. These techniques require medicinal mediation.

The failure of couples to have their own kids can be a reason for incredible disillusionment, enduring, and disappointment. It can leave the couple with a sentiment of disappointment and deficiency. Fruitlessness issues can happen in the two people and there can be numerous elements that can influence the odds of getting to be pregnant. In around 30% of barren couples, the reason is recognized uniquely in the female and in the 30%, the reason is Distinguished distinctly in the male. In a further 30% of couples, causes can be distinguished in the two accomplices. in about 10% of cases, the fundamental reason isn’t yet found by the current symptomatic techniques. By therapeutic definitions around one of every six couples have issues with barrenness. Around 1% of couples in the UK depend on IVF strategies. Another factor that fills the requirement for surrogacy is the inaccessibility of infants for the reception. Reception numbers tumbled from 21,299 out of 1975 to 6,533 of every 1990. This at any rate somewhat mirrors the ascent in premature births in a similar period from 139,702 to 186,912. The expanding acknowledgment of single-parent families and unmarried mothers has likewise had an influence in the lessening of infants accessible for appropriation.

Lady Mary Warnock led the Warnock Report on Human Treatment and Embryology; the 15-part board analyzed the social, moral, and legitimate ramifications of improvements in helped proliferation. The Warnock board of trustees got numerous entries supporting and restricting surrogacy.

The guideline of surrogacy was earnest around the season of the Warnock board of trustees since benefit making organizations were simply beginning in England. Warnock’s proposal was to get enactment to make it a criminal offense to set up or work surrogate offices. People who would go into private surrogacy plans would not be obligated to criminal arraignment. This enactment was passed as the Surrogacy Game plans Act in 1985.

The Human Preparation and Embryology Act 1990 is the demonstration of parliament that covers all fake multiplication, including surrogacy. As the plot in the Surrogacy Demonstration of 1985 surrogacy isn’t denied in the Assembled kingdom, be that as it may, it is unlawful to promote the administrations as a potential surrogate mother and it is additionally illicit to publicize for a surrogate other to approach. Thusly the plan is typically made by overhearing people’s conversations. The surrogate mother can’t benefit in at any rate, yet she can charge for her costs, for example, loss of income, maternity garments, and restorative costs.

The surrogacy discussion raises significant moral issues for instance if the infant is conceived because of benefactors, the mother, father, or both, the kid with having no learning of them by any stretch of the imagination. In the event that the contributor guardians have given their eggs/sperm commonly it may be the case that the tyke has numerous obscure hereditary kin, this could have cataclysmic outcomes in later life if two hereditarily related individuals go into a sexual relationship and proceed to have kids. There is additionally the hazard that kids who are conceived because of benefactor guardians with not know whether they are in peril of building up any hereditary diseases. For instance, an individual may give their eggs/sperm for use in barrenness medications and they may not discover until a lot later that they have an ailment like Huntington’s ailment. In light of the idea of the sickness when they have found they have the infection their eggs/sperm may have been utilized ordinarily to deliver posterity for other people.

Despite whether the surrogate mother is the organic mother or not, in law, she is still observed as the mother of the youngster and once the tyke is brought into the world the dispatching guardians need to experience exacting extensive reception methodology. The surrogate mother has the lawful ideal to alter her perspective whenever and keep the child herself. The authorizing guardians may likewise alter their perspectives amid the pregnancy, there is additionally the hazard that the dispatching guardians may decline to have the kid on the off chance that it has any handicap or anomaly.

There are numerous social and passionate ramifications of surrogacy, they can be mind-boggling and numerous individuals can be influenced; A surrogate mother must make certain of her own inspiration and her own quality as the truth of labor and the detachment from the infant might be both physically and genuinely requesting, making her reluctant to hand over the child. The compelling feelings after birth make it difficult for the surrogate to part with the youngster paying little mind to how efficient the real origination and pregnancy has been. Regardless of whether the child isn’t hereditarily hers and the pregnancy is accomplished by IVF the surrogate’s body must be falsely arranged to convey the pregnancy. While the surrogate mother may abstain from holding with the infant, this may happen normally and out of the blue after the birth. Realizing this the charging mother may have sentiments of disdain or envy towards the surrogate mother and the infant. The way that her better half has had a child with another lady might be difficult to survive and could cause disdain inside the relationship. The effect of surrogacy may go significantly further, for instance, grandparents, aunties, and uncles may stress that they will treat the infant uniquely in contrast to other youngsters inside the family on the off chance that they are not their blood relatives.

The appointing father, on the off chance that he is the hereditary dad, may create physical, mental, and enthusiastic sentiments towards the lady conveying the child, then again if his accomplice is the organic mother and the dad is a benefactor, he may build up a sentiment of envy and disdain.

The surrogate mother’s family should likewise be considered, she may have kids as of now and the effect of seeing their mom pregnant and not having an infant toward the end could be mistaking and disquieting for them. The surrogates spouse or accomplice may have negative sentiments about the pregnancy and the impact it might have on the family life.

In particular, there are, obviously, additionally worries for the kid; a portion of the dispatching guardians may mislead that person about their starting points. In the event that the tyke isn’t recounted their inceptions, they will unavoidably discover sometimes leaving them feeling hurt and mentally harmed. Regardless of whether the guardians are unguarded with the kid, they may at present be left with the sentiment of not knowing to whom they have a place since it is conceivable that the kid could in truth have five guardians; the surrogate mother, the dispatching couple, and the egg and sperm benefactors. In the event that they are the result of two givers, they will never know their genuine beginnings. This could leave the tyke befuddled. As they develop more seasoned they may consider themselves to be an item that has been made to fulfill a grown-up need. They may feel that they were sold and their surrogate mother just had them for monetary benefits. Then again if the dispatching guardians are open and the circumstance is disclosed to the tyke since the beginning, this could make the tyke feel an uncommon and needed arranged version to the family realizing that their folks and surrogate mother went to such lengths to carry them into the world.

It has been recommended that such youngsters may feel a specific measure of uneasiness about being ‘extraordinary’ from their companions. They may some of the time feel strain to satisfy the desires for their folks who made a huge effort to have them. Be that as it may, these worries don’t seem to mirror the truth for youngsters from other ‘unique’ families, for example, those subsequent from fruitlessness medications or selection. All the more emphatically it has been proposed that youngsters imagined because of surrogacy plans may truth be told, be glad for their folks and the surrogate mother for their reality.

The implications of surrogacy could, in principle, continue for a considerable length of time, as there could be cases of paternity or maternity rights alongside guardianship and access requests and upkeep and money related issues. There could be issues with legacy claims; whereby the tyke conceived because of surrogacy could challenge the last will and confirmation of their organic parent, denying her own offspring of part of their legacy.

Surrogacy is in some cases censured in light of the fact that it is asserted that it undermines the family, however, families in Britain have fluctuated in any case and the conventional family unit comprising of a working dad, a mother who is a housewife and kids, makes up under 15% everything being equal.

In the event that everything goes to design and the surrogate mother conveys the infant and hands it over, either at the birth or in a matter of seconds subsequently, the authorizing guardians at that point need to leave on an adventure to turn into the lawful guardians of the youngster. They need to get a parental request, which is reachable by application to the courts. This makes the charging guardians the tyke’s legitimate guardians; this has a similar impact as the reception.

Some surrogate moms others have nothing more to do with the youngster once they have been given over to the dispatching couple. Others remain in contact with the youngster; this is particularly the situation when it is a dear companion or relative who has conveyed the tyke as a benevolent demonstration of helping the couple with their childlessness.

Surrogacy is commonly just gone into after extraordinary thought and for the most part, if all else fails for childless couples, by and large after every other treatment has endeavored. The quantity of children conceived because of Surrogacy is generally low as despite everything it remains a nearly uncommon type of barrenness treatment. There is an exceptionally restricted measure of research accessible into the impacts upon the kids, the surrogate mother and the appointing guardians. The cases featured in the press are normally negative, yet this lone concern a little level of the children conceived because of surrogacy. No doubt most of the individuals who are engaged with surrogacy understanding advantage, the authorizing guardians get a much needed and esteemed child and the surrogate mother, and conceivably her family, advantage inwardly.

Surrogacy is an intrinsic, complex subject that encompasses many issues – the lack of enforcement in domestic arrangements, illegal arrangements, human trafficking and exploitation, and the legal consequences of leaving children stateless or without guardians. The Australian surrogacy system does not effectively protect the interests of Australian stakeholders nor provide the opportunity for safe surrogacy arrangements. Due to the lack of regulation and legislative protection for enforcement surrounding surrogacy, and Australia’s complex adoption system, Australians are turning to international surrogacy arrangements. This can potentially open intended parents up to illegal arrangements, false parentage orders, and the potential for surrogate children to be left without a guardian or state. Illegal international surrogacy arrangements also leave surrogate mothers in developing nations vulnerable to human trafficking, which then may also apply to the surrogate child. Reforms to existing legislation and better educative practices are essential to creating a safer surrogacy system for Australians.

The Australian legal system defines surrogacy as “an arrangement whereby a woman (‘the surrogate mother’) agrees to conceive and bear a child, which she intends to transfer to another or others (the ‘commissioning couple’ or ‘commissioning husband’ and ‘commissioning wife’) upon the child’s birth.” (Lowe and Barry v Anor 2011). Currently, the Surrogacy Act (Qld) 2010 is the leading piece of legislation used to regulate the area of surrogacy in Queensland. It outlines the legal process, including mandatory counselling, birth registration, and parentage order applications. Commercial surrogacy, where the surrogate mother receives payment, is illegal in Queensland, however, in accordance with the Surrogacy Act (Qld) 2010, altruistic surrogacy is legal pending certain requirements (Australian Government Social Services, 2018). In a commercial arrangement, the surrogate mother receives financial payment as a reward, in addition to reimbursement for medical expenses. In an altruistic arrangement, the surrogate receives no benefit or financial reward other than reimbursement of medical costs. It is key to note that surrogacy agreements are not enforceable; the birth mother does not have to give up the child, and the intended parents do not have to care for it.

The vacancy of legal enforcement is, ironically, legislatively enforced under section 15 subsection 1 of the Surrogacy Act (Qld) 2010. As agreements are not enforceable, individual stakeholders are not protected. Intended parents are left with no guarantee that the birth mother will comply in a parentage order and vice versa. The only enforceable part of the surrogacy agreement is reimbursing the surrogate mother for her medical costs. Thus, the birth mother could, wholly legally, and in accordance with section 15 (i) of the Surrogacy Act (Qld) 2010, relinquish her right to be reimbursed for medical expenses and keep the child by not consenting to a parentage order. By introducing a contractual system for altruistic surrogacy that is enforceable in a court of law, this loophole could be eliminated.

Reforms to the Surrogacy Act (Qld) 2010 to add an enforceable arrangement would best protect both stakeholders. This inclusion of a contractual arrangement has not yet been discussed, as there is a clear issue. For a valid contract, there must be an intention to create legal relations, offer, acceptance, and consideration. If a surrogacy arrangement in Queensland was to be contractually valid, there would have to be consideration for the birth mother; in other terms, a benefit, which would then mean that the arrangement would meet the conditions for a commercial surrogacy, which is illegal. To resolve this, a contractual agreement should be created wherein there is consideration for the birth mother, but it does not extend beyond the conditions that an altruistic arrangement allows. The consideration for the birth mother should only be the reimbursement of medical fees – a condition that is already legally enforced. This would uphold a contractual agreement that met the conditions and was legally valid, but did not breach the conditions of altruistic surrogacy.

This would not be the first time that reforms and legislative reviews were undertaken for surrogacy – the Family Law Council produced a report on Parentage and the Family Law Act, reviewing and making recommendations for the improvement of the current surrogacy system in 2013 (ABC, 2018). Additionally, in 2016, there was a national inquiry into surrogacy matters and, in 2018, a follow up report by the Federal Government (News Corp Australia, 2018). There is clearly an understanding in federal government that national legislative reforms are necessary to create fair and equitable domestic surrogacy agreements, and the aforementioned contractual recommendation would be able to fulfill that need.

Arguably, surrogacy in itself goes against the rights of a child. The United Nations Convention on the Rights of the Child, which has been ratified by Australia and adopted into effect on the 20th of November, 1989 (UN Human Rights Commissioner’s Office), protects the many rights globally recognised for children. Article 7 states that the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents. This was created eleven years after the first child was conceived through artificial reproductive technology in Britain, when the area surrounding surrogacy lacked legislative clarity and parameters (Turnbull Hill Lawyers, 2017). However, in the current scope of surrogacy arrangements, it could be argued that the convention’s relation to surrogacy arrangements have not evolved with reproductive technologies and individual state’s legislation. It is important, however, that the sentiment of article seven remains within surrogacy arrangements, and that, where possible, children have access to knowledge of their origins and nationality.

While Australia’s domestic surrogacy laws continue to cause issues and concern to intended parents, people are turning to international arrangements and, as Justice Bryant acknowledges, Australians are among the world’s most enthusiastic clients (The Australian, 2017). One of the largest legal issues to arise out of international commercial surrogacy, especially in countries that Australians frequently go to (Thailand, India, Cambodia), is reproductive trafficking. In many illegal international agreements, people smugglers move women and children in utero across borders to give birth, where they can then smuggle the child to the intended parents. There are many examples of this happening, such as Indian women moved to Nepal (Morning Edition, 2015), and Kenyan women flown to India for IVF and then returned to Nairobi to give birth (The Conversation, 2017).

The issue of reproductive trafficking breaches international treaties on human rights, while exploiting and endangering the women involved. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, was adopted by the United Nations General Assembly in December 2003 (United Nations, 2003). It comes under the United Nations Convention against Transnational Organized Crime, and was the first global, legally binding document to fight against human trafficking. Illegal surrogacy arrangements go against the nature and international law outlined in this treaty.

Additionally, section 270 and 271 of the Criminal Code (Cth) 1995 prohibit human trafficking in Australia, while section 71 of the Criminal Code (Cth) 1995 further criminalises people smuggling (where a person facilitates or organises the illegal entry of another person into a foreign country, Australia or not, for a benefit). This creates a legislative conflict. An international surrogacy agreement is one where one party arranges a second party to conceive and bare a child to then be transferred back into the country. When people smugglers move surrogate mothers for the sale of children, they are are moving another person (the baby in utero, who, if not of that nationality, is technically illegal), for a benefit (the payment of the intended parents). Additionally, when the baby is then taken back to the intended parent’s country with forged parentage orders or false documentation, it becomes child trafficking. The issue is that often, Australian intended parents aren’t aware of the illegalities of the arrangement.

Such was the case of Tammy Charles-Davis, who ran “Fertility Solutions”, a seemingly legal surrogacy clinic that linked intended Australian parents with Cambodian surrogates. Ms Charles-Davis was sentenced to 18 months in prison for illegally moving Cambodian women across borders to then deliver children to Australian parents (who never received legal parentage orders) (ABC News, 2017). Consequently, the Criminal Code (Cth) 1995 section 73 would impose up to 20 years imprisonment, as the child in utero was an illegal citizen, who was then smuggled to another country, and she was involved in illegally transferring the women to Thailand. The Australian intended parents were paying Ms Charles-Davis $50,000 for a surrogate child, unaware of the gross injustice that was occurring (ABC News, 2017). Intended parents may not have been aware, however the Surrogacy Act (Qld) 2010 criminalises paying a surrogate mother, domestic or international (Turnbull Hill Lawyers, 2017). This is an example of how a lack of education can result in intended parents unknowingly committing a crime, while their only intent is to try and start a family, and reinforces the importance of stronger education programs for intended parents.

In instances such as the circumstance the children born through Ms Charles-Davis’ clinic were left in, children are left stateless and without any legal guardians. In the aforementioned case, the Cambodian government established regulations wherein intended parents had to prove a genetic link to the surrogate born child, and prove to the court that they would be fit parents. If the courts ruled they were capable of caring for the child, they then had to process legal documents/parentage/passports, and an array of bureaucratic process to bring their child back to Australia. When children are left in legal limbo for periods of time it may impact on their developmental functioning and wellbeing, and there is a need for an internationally recognised protocol to get children out of these situations if they arise (Human Rights Commission Australia, 2014). Alternatively, a legal issue arises when countries are hubs for international surrogacy, and then decide to close down all programs and overnight legislate against it (as was the case in Thailand). This leaves all stakeholders involved in surrogacy programs at risk of breaching domestic and international law, when 24 hours previous everything had been legal. If a country decides to legislate against surrogacy, then there should be a grace period for current legal surrogacy arrangements to be fulfilled.

There are a number of measures that could be taken to improve Australia’s “broken” surrogacy system. Firstly, independent legal advice should be sought by all stakeholders to ensure compliance with Queensland’s conditions for altruistic surrogacy (the first being to seek legal advice), and so that each party is protected. Also, better education for Australians seeking to start families through alternative methods. By ensuring proactive campaigns and insightful resources are available to intended parents when they first begin their fertility journey, they can better make educated decisions and be aware, legally, of what they’re able to do. This would prevent circumstances where intended parents unknowingly fund illegal surrogacy arrangements, or attempt to start a family through illegal means.

Furthermore, stronger reforms and frameworks surrounding fertility clinics and surrogacy foundations are required to effectively regulate the sector. Checks and balances must be put in place to hold clinics accountable and transparent – this may be through compulsory annual openings, where governmental regulatory bodies can look into their international trades and practices and assess whether all surrogacy arrangements are legal. Additionally, it may be through stronger legislation that acts as an effective deterrent to those trying to frame illegal international surrogacy arrangements as legal. Finally, reforms should be made to leading Australian legislation around this body – namely, the Surrogate Act (Qld) 2010. Specifically, amending items such as section 15 which discusses the legalities surrounding enforcement of surrogacy arrangements. As there is currently no enforcement for birth mothers to abide by their agreement in an altruistic surrogacy arrangement, an introductory contractual framework that required both parties to sign and note all conditions surrounding the arrangement (including parentage orders) would provide better protection for intended parents. This contract could be made valid while respecting the requirements for altruistic surrogacy by making medical reimbursement the birth mother’s contractual consideration. Ultimately, stronger reforms and campaigns to better protect all stakeholders in surrogacy agreements will create a safer and stronger option for intended parents that allows them to remain within the legal bounds of the sector.

The idea of progress can be defined as an improvement, a development or a change, a technical, scientific or social advance which contributes to making the world a better place. In today’s world, progress is developing at a very fast rate. We see scientific progress medical advances, cures for illness, cloning, enhancement of drugs, genetically modified organisms. We also perceive technological progress: hybrid cars, wind turbines, solar panels, biofuel, nuclear power, advances in the internet, the social media, mobile phones, video games. In addition to this, we can see social progress: changes in the quality of life, employment, education, equality, women’s rights, human rights, family life, the idea of freedom, liberty, democracy… This progress is due to modern technology. The question remains: how does modern technology affect today’s society? Does it have a positive or a negative effect? To answer that question, I am going to present the idea of progress in medicine, its effects on our lives and the debates it creates regarding ethnicity and life choices.

First and foremost, we studied an article “Design your Baby” and an audio about changing the genetics of the baby. In this article, the author suggests that parents in the near future will be able to choose their babies’ physical traits, their level of intelligence, eliminate the diseases… I think that in this last case, this progress in medicine called pre-implantation genetic diagnosis (PGD) in which scientists choose embryos and ensure that the chosen one is healthy could help humans eradicate chronical diseases. However, the fact of choosing physical traits of the future baby should not be accepted: a baby should be loved and cherished by his parents no matter what he looks like, the color of his skin or the texture of his hair. Those characteristics shouldn’t be chosen by the parents because the appearance of an individual is part of his identity. If someone is choosing your identity for you where is your liberty? Moreover, given that this procedure is new and needs professionals, it costs a lot to be able to achieve it, and this will create even more problems because only the rich people are able to access this kind of technique and this increases the gap between what the rich people can afford compared to what the poor can do. People will become stereotyped just like we saw in “Odd man out”, a cartoon that shows a factory “Clones R Us” that creates humans. In this factory all the humans are the same, same face, eyes, mouth, underpants and we can suppose they also have the same temper. These similarities are possible thanks to eugenics, a science which studies methods of improving the genetic composition of the human race by selective breeding. And if there are men who aren’t conform to the regulation because they are too small, pale, don’t have the right hair color or have a disproportional member in their bodies for example they will be thrown into a dustbin. This cartoon is very interesting to illustrate the notion idea of progress because the artist denounces the idea of perfecting human genetics and the resulting dehumanization. This cartoon depicts perfectly the negative side of progress.

On the other hand, we talked about surrogacy. One of the articles in question is titled “All surrogacy is exploitation- the world should follow Sweden’s ban” and is written by Kajsa Ekis Ekman. This title clearly indicates that the author is against surrogacy because it is a form of exploitation. What is surrogacy? It is known as the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children. This practice generated since its start in the 1970’s social, economic, religious, ideological and ethical debates. From the beginning of the article, Ekman gives example of the cases of surrogacy that led to scandals, abuse and exploitation. He then indicates that the Swedish government is taking measures to ban all kinds of surrogacy: altruistic and commercial surrogacy. Surrogacy is often used as a mask for an industry that buys and sells human life and this is prohibited by the UN convention on the rights of the child. I am against altruistic surrogacy because the couples who cannot biologically have a child (infertility or same-sex couples) can adopt children who are living a miserable life and surround them with love as if they were their own children. I am strongly against commercial surrogacy because in this case, the women are selling their physical, intimate, and bodily services for money, and this cannot be accepted. Moreover, contrary to many Western countries, commercial surrogacy is legal in India and many Indian women have chosen to become surrogate mothers for Western couples. However, the main reason Indian women are accepting to be surrogates is because they are in an urgent need for money, but it doesn’t come without the judging eye of the neighbors and the society in general as seen in the article we studied about the Indian surrogate. This is an argument on how the rich are exploiting the poor once again and how women are facing a risk of being exploited. We can say that this procedure is unfair because only the rich people are able to access this kind of technique and this increases the gap between what the rich people can afford compared to what the poor can do. We can say that altruistic surrogacy could be a solution to the couples who are facing infertility problems and who have tried adoption without success. However, commercial surrogacy should be banned because it puts in place an industry of selling and buying human lives while exploiting women from the third world countries in need of money.

This progress in medicine led to many debates on various levels such as ethnicity, equality, liberty…. We can say that this advance in the procedure is very new and can create several issues for today’s society. However, progress in medicine can still be seen in a positive aspect when it comes to eliminate diseases, cure sicknesses, help disabled and trying to ensure a longer and better life. I got a document to illustrate this idea showing another side of progress.

The second document is called: “17 years later, Nash family opens up about controversial decision to save dying daughter”, it’s a text about a girl, Molly, who had been saved by her brother, Adam. Indeed, molly had a rare illness and she was destined to die before the age of seven. So Molly’s parents decided to turn to PGD. Thanks to PGD Adam was an ideal bone marrow donor for his sister and thanks to that Molly was cured. She was the first child cured thanks to PGD. So this text perfectly illustrates a type of progress, the medicine improvements. But, this story created an ethical controversy and it was a subject of debate. Molly Nash then became the real-life-inspiration for the new novel “My Sister’s Keeper” by Jodi Picoult, later adapted and turned into a movie. An extract of this novel is actually one of my documents, “Fighting for a future”. It’s the story of a young girl, called Anna Fitzgerald who is born in order to keep her sister Kate alive, because Kate has big health problems. In this extract, Anna is in a lawyer office and wants to sue her parents because she can’t accept this life anymore. At first, the narrator thinks that the girl is here for sur her parent’s because they refuse to let her take birth control pills and because she has been prevented from having an abortion. In fact, he says to his secretary « Can you get the Planned Parenthood for Ms. Fitzgerald? », but he realized that the problem is much more important. Anna wants to sue her parents for the right of her own body and the narrator, the lawyer, says that no one can make her donate an organ if she doesn’t want. Her sister suffers from leukemia, but Anna already gave her a lot of things: lymphocytes, bone marrow, granulocytes… So we realize that since she was born, she was always used in the aim of cure her sister. And as she says « nobody ever asked », up to now, the girl has not given her consent and doesn’t have the choice. Now, it’s one time too many: she doesn’t want to give to her sister a kidney. The girl is considered as a « medicine baby », only created in the aim of saving Kate « They had me so that I could save Kate ». At the end, she decided not to give to her sister her kidney because she doesn’t want to be a spare-part teenager and she want to live her real life. So she decided to sue her parents. This extract underlines the fact that it’s not easy to be a medicine baby. It means that your life a depends on the disease of a sick person. Medicine babies don’t have a private life. They don’t decide of their life. They must have operations according the need of the sick person they must save. They are objects and medical tools, which is unfair on one side, but has many bright sides.

To sum up, by explaining some of effects of progress above, it is obvious that progress is not always positive. Progress always has two sides a bad one and a good one. So, we must be reasonable and use all sorts of progress moderately and in a smart way. There will always be a negative side effect, but maybe the positive side of the situation is worth it? It is up to each and every one of us to judge his own cases and make the decision he think is the best without harming anyone else.

Many women might consider becoming a surrogate for different reasons. However, not all of them can do so, as they must meet some initial requirements. The purpose of surrogate screening is to ensure that the candidate is apt for the procedure, and thus protect the health and safety of both the surrogate and the baby during the entire surrogacy process.

There are a number of factors which need to be taken into consideration. Prospective surrogates must be psychologically and physically ready for the process. Criteria might slightly vary from agency to agency, but according to standards set by the American Society of Reproductive Medicine (ASRM), the general requirements for becoming a surrogate may include the following.

Age restrictions

Surrogates must be within a certain age range. Agencies usually set this requirement for surrogates between the ages of 21 and 45, following the recommendations of the ASRM. Older ages increase the risk of obstetric and perinatal complications. In fact, criteria are even stricter when it comes to traditional surrogacy. Then, surrogates must be younger, as their own eggs will be used for the conception of the baby.

Prior births

In order to become a surrogate, a woman must have at least carried one previous pregnancy successfully, and have no major complications from them, meaning she is physically able to carry a pregnancy to term. It also implies that she is aware of the medical risks of the process and the chance of emotionally bonding with the baby. Prospective mothers should also be currently raising their own child or children.

Weight requirements

Obesity has a direct impact on fertility treatments outcome, including surrogacy. Most agencies and fertility clinics abide by the body mass index (BMI) standard to assess whether the weight of the candidate is healthy or not. BMI is a value derived from both the height and weight of an individual. It can be a good indicator of the health of the surrogate, considering that a healthy weight reduces the risk of health complications during surrogacy, as we explaine in more detail here.

IVF clinics and agencies usually require the surrogate’s BMI to be no greater than 30, which is the limit value for considering that the candidate suffers from obesity. BMI values lower than 19 suggest that the candidate is underweight, which also can negatively affect her fertility.

Other health requirements

Some sexually transmitted diseases (STDs) can spread to the baby during pregnancy or through the birth canal during labor. Surrogates must be free of any treatable STD at least 12 months prior to surrogacy.

ASRM recommends that surrogates must be psychologically stable and free of antidepressant medication for at least one year before starting with surrogacy process. A history of mental illness or post-partum depression would likely disqualify a candidate from becoming a surrogate.

In gestational surrogacy, since it doesn’t involve the eggs of the surrogate, a tubal ligation does not preclude a candidate from being selected. In fact, it advantageous, insofar as it ensures that the surrogate will not become pregnant with her own oocytes.

Responsible lifestyle

Ideal qualities for a surrogate mother include having a responsible behavior and lifestyle. Prospective surrogates should provide a healthy and safe environment for the child, as well as for themselves, over the course of the surrogacy. They must therefore be non-smokers. Smoking during pregnancy increases the risk of obstetric and perinatal complications, such as miscarriage, premature birth, low birth weight or Sudden Infant Death Syndrome, so this requirement is essential.

In addition, surrogates must not use illegal drugs or abuse alcohol throughout the period of conception and pregnancy. Besides, prospective surrogates must have no history of criminal activities or felony convictions.

Financial stability

Surrogates must be financially stable, and not on governmental assistance programs. This requirement seeks to ensure that candidates are not coerced by the financial gain of the process.

Surrogacy is complex and it requires candidates to undergo multiple evaluations. This process can sometimes seem lengthy and tedious, but it is crucial in order to ensure the protection of all parties involved and, ultimately, the success of the technique.

While the previous chapters have dealt with the contents and similarities and differences of the 2016 Bill and the Standing Committee Report, this chapter aims to critically engage with their understanding and approach to commercial surrogacy using the perspectives of morality and autonomy, economic freedom and risks, as well as health approaches and the disability movement’s response to commercial surrogacy.

A Feminist Analysis

Surrogacy may influence the ways in which society views reproductive rights and enables them to be exercised. From this perspective, surrogacy may be a form of (patriarchal) alienation of women’s bodies and reproductive potential and performance, but also of a woman’s right to self-determination over her own (reproductive) body.

In India, as in the majority of countries, women are socially expected to become mothers and to ensure the descendance of the family. “Motherhood is central to the social construction of womanhood in India”; all other women’s roles are subordinate. In Indian culture, one of the objectives of life is also to transmit (genes) to the new generation, attaining immortality through reproduction. “Socially, the value accorded to biological parenthood within heterosexual marriage is far superior to the value accorded to voluntary childlessness, adoption or alternative family structures.” Even within that, the concepts of “fatherhood” or “parenthood” are not frequently or popularly used in the Indian context. Thus “mothering” or “motherhood” is a gendered notion that assigns a gendered role of procreation to women. Therefore, as in many other countries in the world, infertility in India has several negative consequences, especially for women: stigmatized marital instability, emotional harassment, low self-esteem. “When the continuity of a pure bloodline is threatened, individuals are likely to lose out on the incentives and since purity of bloodline is linked to women’s sexuality and reproductive functions, they are the ones who face the greatest stigmatization, discrimination, trauma and exclusion due to their infertility.” [1: Sama-Resource Group for Women and Health [2008], “Assisted reproductive technologies : autonomy or subjugation ? A case study from India”, Women’s studies international forum, n° 31, p. 319-325] [2: Dasgupta S. [2010], “Motherhood jeopardized: reproductive technologies in Indian communities”, in Chavkin W., Maher J.-M. (dir.), The globalization of motherhood. Deconstructions and reconstructions of biology and care, London, Routledge, p. 131-153.] [3: Sharma S. (dir.) [2013], Can we see the baby bump please? SAMA-Resource group for women and health, India, Magic lantern movies LLP, English/Hindi, 49 minutes] [4: Marwah V., Sarojini N. [2011], “Reinventing reproduction, re-conceiving challenges : an examination of assisted reproductive technologies in India”, Economic and political weekly, vol. 46, n° 43, p. 105] [5: Unisa S. [1999], “Childlessness in Andhra Pradesh, India : treatment-seeking and consequences”, Reproductive health matters, vol. 7, n° 13, p. 54-64] [6: Jejeebhoy S.J. [1998], “Infertility in India – levels, patterns and consequences : priorities for social science research”, The journal of family welfare, Family Planning Association of India (FPAI), vol. 44, n° 2, p. 15-24] [7: Banerjee S. [2012], “Emergence of the ‘surrogacy industry’”, Economic and political weekly, vol. 47, no 11, p. 29]

Commercial Surrogacy in India is viewed as a problem, and the State plays a patriarchal role, trying to ‘protect’ women from exploitation, however, ends up trying to control their sexuality and free choice. Both, the Parliamentary Committee Report as well as the Bill are of the paternalistic view that surrogacy is inherently exploitative, if there is any commercial interest involved. This assumption has often also been seen in arguments against legalizing sex work, since that tends to ‘exploit’ women. The existing view is that women cannot choose to remain in sex work just as women cannot choose to sell their womb for a price. This de-recognizes women’s exercise of agency with regard to their own bodies. It is an extremely important part of the patriarchal agenda to deny women agency over their sexual as well as reproductive labour, in order to control women more comprehensively. [8: Walby, Sylvia. “THEORISING PATRIARCHY.” Sociology, vol. 23, no. 2, 1989, pp. 213–234. JSTOR, www.jstor.org/stable/42853921.]

On the other hand, feminists have critiqued the usefulness of the corrective approach to equality as opposed to the protective approach, as the latter is often paternalistic, and restricts women’s right to life and liberty. The protective approach adopted by the 2016 Bill to a large extent, and the Parliamentary Standing Committee report to a smaller extent, denies women the right to choice and autonomy over their own bodies and reproductive labour, in the name of protecting them from exploitation. In contradistinction to this, they could have addressed the exploitative circumstances and made other stakeholders accountable, so as to disable the tendency to exploit surrogates. [9: Young, C. and Weiss, M. (1996). Feminist Jurisprudence: Equal Rights or Neo-Paternalism? [online] Libertarianism.org. Available at: https://www.libertarianism.org/publications/essays/feminist-jurisprudence-equal-rights-or-neo-paternalism [Accessed 6 Apr. 2019]]

The transactional process of surrogacy is often viewed as exploitative, or as immoral work. It is not counted as work economically either. There is social morality involved, where the ethical issues related to surrogacy are raised, and the economic pragmatism, wherein the modes and ethics of compensation are involved. The neo-liberal state that is otherwise into profit-making has suddenly come down to prohibit commercial surrogacy, which will decline the profits derived from medical tourism. There is a fear that because surrogacy will disrupt the patriarchal notion of family and motherhood that law, and the Indian state carry. Prohibition in the name of protection of surrogates can actually lead to further vulnerability and violation of rights of surrogates. Also, while there are attempts to mainstream surrogacy as a mode of parenthood, there is a passivity (as opposed to agency) accorded to the surrogate mother and a devaluation of her gestational labour. This goes against the grain of women’s empowerment. [10: Accessed from https://www.thehindu.com/news/national/medical-tourists-flocking-to-india/article24497896.ece on Apr 9th 2019 at 4:10PM]

A nine-judge bench of the SC unanimously affirmed privacy as a fundamental right under the Constitution. The bench recognised privacy as an inalienable right, grounded in values such as dignity which underlie all our fundamental rights, and it categorically located privacy in the individual. While judges phrased their conceptions of privacy differently, the bench commonly held privacy to cover personal autonomy relating to the body, mind, and to making choices – decisional privacy, as well as informational privacy. [11: Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. WRIT PETITION (CIVIL) NO 494 OF 2012]

A key aspect of this personal autonomy is the gamut of sexual and reproductive rights, which entails rights to make sexual and reproductive decisions, as recognised by the 1994 United Nations International Conference on Population and Development (UNPIN 1994).

The prohibition on commercial surrogacy not only denies the willing surrogate the right to livelihood, and instead expects surrogates to perform reproductive labour without compensation, but also denies her bodily and reproductive autonomy. This ban also denies these women their right to dignified labour, thus diminishing their dignity.

The moralistic view taken up by both, the Bill and the Report is based on an understanding that no woman should make surrogacy her job- which begets the question: why?

There is a popular conception in India that becoming a surrogate means having sexual relations with a man other than one’s husband or partner. In that sense, surrogacy may be compared to adultery, even prostitution, which is particularly condemned in Indian society, and therefore fuels the stigmatization of this activity. Some feminists do compare surrogacy with prostitution: surrogates sell reproductive capacities while prostitutes sell sexual capacities. [12: PATRONE, TATIANA. ‘Is Paid Surrogacy a Form of Reproductive Prostitution? A Kantian Perspective.’ Cambridge Quarterly of Healthcare Ethics 27.1 (2018): 109-22. Print.]

Because of this “public imagination”, surrogacy is not accepted in India as work. Some feminists also argue that neither surrogacy (nor prostitution) is a professional activity. The French philosopher Sylviane Agacinski considers that the body is actually a working instrument, and that it is the services and products this body generates that are generally paid for, and not what this body is. She cites Emanuel Kant in stating that things have a price, and humans have a dignity. However, all authors who have studied surrogacy in India, as well as the majority of physicians and experts on surrogacy, agree in interpreting surrogacy as labour, a “gendered, exploitative and stigmatized labour, but labour nonetheless”. [13: Pande A. [2009], “It may be her eggs but it’s my blood : surrogates and everyday forms of kinship in India, Qualitative sociology, n° 32, p. 379-397] [14: Agacinski S. [2009], Corps en miettes, Paris, Flammarion, 138 p.] [15: Marwah V., Sarojini N. [2011], “Reinventing reproduction, re-conceiving challenges : an examination of assisted reproductive technologies in India”, Economic and political weekly, vol. 46, n° 43, p. 104-111]

What the prohibition on commercial surrogacy denies to surrogate women, thus, is their dignity, autonomy, agency and reproductive freedom. While it can also be argued that surrogacy contracts can be biased towards commissioning parents and leave the surrogates at a powerless position, it makes the need for robust regulations instead of a prohibition even more apparent.

A Health Perspective

In the US, surrogates are given no more than two embryos for their safety, whereas in India, surrogates are implanted with up to five embryos in order to increase the chances of pregnancy. Using such a large number of embryos increases health risks for the infants and the mother. Chances of post-partum depression of surrogates are more with the child that grew in mother’s womb. Pregnancy, birth and the post-partum period includes complications such as pre-eclampsia and eclampsia, urinary tract infections, stress incontinence, hemorrhoids, gestational diabetes, life-threatening hemorrhage and pulmonary embolism. Multiple pregnancy increases the likelihood of requiring an operative delivery. A surrogate host of advanced maternal age has increased risk of perinatal mortality, perinatal death, intrauterine fetal death, neonatal death. There is a greater risk to the mother of pregnancy induced hypertension, stroke and placental abruption. When hormones or drugs the surrogate is instructed to take, all drugs have side-effects. [16: Anu, Kumar P, Inder D, Sharma N. Surrogacy and women’s right to health in India: Issues and perspective. Indian J Public Health [serial online] 2013 [cited 2019 Apr 9];57:65-70. Available from: http://www.ijph.in/text.asp?2013/57/2/65/114984] [17: Kevin T. The ethics of surrogacy contracts and Nebraska’s surrogacy law. Vol. 41. Creighton Law Review; 2008. p. 185-206]

Many women undergoing artificial insemination also take fertility treatments, increasing the likelihood of an adverse reaction and risks involved with the procedure. Issues such as premature delivery, genetic malformation and infections which lead to increased hospitalization of newborn are important issues to be considered in surrogacy contract. Many surrogate mother’s breastfeed the newborns during the first few hours following birth. However, parents find difficulty in initiating the breast feeding and in establishing the bonding between mother and child in case of surrogacy. One of the major draw backs of induced lactation in most surrogates or adopting mothers rarely produced the same quantity of breast milk as a new mother immediately following child birth. This presents a problem in terms of infant nutrition. [18: Commercial surrogacy and fertility tourism in India, The Case of Baby Manji, The Kenan Institute for Ethics at Duke University. The case studies in ethics.] [19: Jacobsson B, Ladfors L, Milsom I. Advanced maternal age and adverse perinatal outcome. ObstetGynecol 2004; 104:727-33.] [20: van den Akker OB. Psychological trait and state characteristics, social support and attitudes to the surrogate pregnancy and baby. Hum Reprod 2007;22:2287-95.] [21: Jadva V, Murray C, Lycett E, MacCallum F, Golombok S. Surrogacy: The experiences of surrogate mothers. Hum Reprod 2003;18:2196-204.] [22: Kimbrell. The Human Body Shop: The Engineering and Marketing of Life. New York: Harper San Francisco; 1993. p. 101.] [23: Honjo, Arai S, Keneko H, Ujiie T. Antenatal Depression and Maternal-Fetal Attachment. Psychopathology 2003;36:304-11.] [24: Surrogate Motherhood in India. Available from http://www.stanford.edu/group/womenscourage/Surrogacy/moralethical.html (Last visited 5th Apr 2019)]

Commercialization of surrogacy creates several social conflicts. Given the extreme vulnerability, one-third of the Indian women due to poverty, exclusion from and marginalization in labour and job markets, patriarchal social and family structures and low educational levels, the financial gain through surrogacy become a key push factor. Since most surrogate mothers are not from well-off sections and the motive primarily is monetary so they are easily exploited by the agents working for commissioning parents. Secrecy and anonymity creates a negative environment that affects human relations within and outside families. Surrogacy carries social stigma in the society as it is equated with prostitution and by virtue of that it is argued that it should be disallowed on moral grounds. Surrogate mothers are kept in isolation from families and allowed to meet families in weekends, which are against basic human rights. [25: Niekerk AV, Zyl LV. The ethics of surrogacy: women’s reproductive labour. J Med Ethics 1995;21:345-9.] [26: Anu, Kumar P, Inder D, Sharma N. Surrogacy and women’s right to health in India: Issues and perspective. Indian J Public Health [serial online] 2013 [cited 2019 Apr 9];57:65-70. Available from: http://www.ijph.in/text.asp?2013/57/2/65/114984] [27: Ibid]

Now that the Bill has proposed a prohibition on commercial surrogacy, it remains to be seen if the practice is pushed underground, and thus, leads to no safeguards for the health of women acting as surrogates. Even in altruistic surrogacy arrangements, the health of the acting surrogate would need to be maintained, an aspect that the Bill ignores.

The Disability Movement And Surrogacy

People with disabilities are affected by the surrogacy discussion but they are never at the forefront of the debate. Questions of assisted reproductive technology deeply affect people with disabilities, as their rights to procreate, to participate in surrogacy, and to be valued as full human beings have long been questioned. Discussions about surrogacy typically do not envision people with disabilities as either commissioning parents or as women acting as surrogates, but as fetuses or newborn babies whose existence will challenge the parameters of the surrogacy agreement. The primary question seems to be, what should happen when a pregnant woman acting as a surrogate receives a prenatal diagnosis that the fetus has a medical condition that may cause it to be born with a disability? [28: Conservatorship of Angela D., 83 Cal. Rptr. 2d 411 (Cal. Ct. App. 1999).] [29: ILL. COMP. STAT. ANN. 47 / 20(a)(4), (b)(3) (West 2012) (requiring both women acting as surrogates and commissioning parents to complete a mental health evaluation to establish eligibility to participate in a legally recognized surrogacy contract).] [30: Generations Ahead, A Reproductive Justice Analysis of Genetic Technologies: Report on a National Convening of Women of Color and Indigenous Women 8-9 (2009), http://www.generationsahead.org/files-for-download/articles/GenAheadReportReproductiveJustice.pdf;]

Other reproductive technologies, such as pre-implantation genetic diagnosis, or PGD, allow prospective parents and their health care providers to control certain genetic attributes in 9fertilized embryos before they are implanted in a woman’s uterus. Ethicists and the media have raised concerns regarding ‘designer babies,’ suggesting the possibility that parents could predetermine the height, eye color, and other traits of their children.’ But less frequently challenged is the rhetoric that equates disability with reduced human value, rhetoric that is pervasive in both surrogacy and abortion debates. [31: Mia Mingus, Disabled Women and Reproductive Justice, THE PRO-CHOICE PUBLIC EDUCATION PROJECT, http://protectchoice.org/article.phpid=140 (last visited April 6, 2019)]

Feminists are also at fault for this dehumanizing treatment of disability, particularly in the abortion context, as Alison Piepmeier demonstrates in her article, Disability and What’s Wrong with Feminist Framings of Reproduction. After posting an article about having a child with Down Syndrome on a New York Times blog, Piepmeier was flooded with comments from users that said things like giving birth to a child with Down Syndrome (or any disability) was a ‘crime,’ a ‘drain on society,’ and cruelty. As Sujatha Jesudason and Julia Epstein explain, abortion rights proponents ‘sometimes use disability to defend access to abortion,’ using rhetoric that inevitably equates disability with tragedy.”[32: Alison Piepmeier, Disability and What’s Wrong with Feminist Framings of Reproduction, 39 FEMINIST STUD. 159 (2013).] [33: Sujatha Jesudason&Julia Epstein, Disability and Justice in Abortion Debates, CENTER FOR WOMEN’S POLICY STUDIES (Apr. 9, 2019), http://www.centerwomenpolicy.org/news/newsletter/documents/REPRODisabilityandJusticeinAbortionDebatesJesudasonandEpstein.pdf] [34: Ibid]

Should the commissioning parents be permitted to force the woman acting as surrogate to have an abortion if a prenatal diagnosis shows that the child may be born with a disability, such as Down Syndrome? May the commissioning parents refuse to follow through with the contract? Will the woman acting as surrogate become the legal parent if the commissioning parents refuse to fulfill the contract, and if so, will the commissioning parents be legally obligated to support the child financially? [35: Sara Ainsworth, Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated Surrogacy in the United States, 89WASH. L. REV. 1077 (2014)]

Refer to the clause in the 2016 Bill on foetus facing disability and the consequent right of commissioning parents

Questions surrounding disability are never framed in a way that honours the humanity of people with disabilities. A woman’s right to self-determination is a feminist imperative, but so should be the dignity of people with disabilities, whose lives should not be used as a rhetorical device or a justification for surrogacy policy. Even though the Bill prohibits commercial surrogacy, these questions remain just as relevant in terms of the altruistic form.

An Economic Critique

Empirical evidence suggests that prohibiting commercial surrogacy in its entirety can push the entire industry underground and lead to the proliferation of a black market for surrogacy devoid of safeguards, augmenting exploitation of the surrogates. Thailand, a popular destination for fertility tourism, suddenly clamped a ban on commercial surrogacy earlier this year, after a couple of disasters exposed the dark side of this industry. However, the result was chaos. Some surrogates in various stages of pregnancy were left in limbo. Commissioning parents did not know how to collect their infants. Consequently, the surrogacy industry was pushed underground. [37: Milgrom, P and J Roberts (1992), Economics, Organization, and Management, Prentice-Hall] [38: Head, Jonathan (2018), ‘Baby factory’ mystery: Thailand’s surrogacy saga reaches uneasy end for BBC World. Available at https://www.bbc.com/news/world-asia-43169974 (Last visited Apr 5th 2019)]

According to the Confederation of Indian Industry, the annual value of the Indian surrogacy industry is currently over $2 billion, further giving a chance to the opponents of commercial surrogacy to argue that the wombs of poverty-stricken women are catering to the country’s GDP. However, they fail to consider that prohibiting commercial surrogacy might lead to a thriving black market. This can be directly compared to the case of organ transplants, particularly kidneys, in India. Under Indian law, only close relatives can donate their kidneys to patients. However, in a recently reported scandal in Mumbai, poor villagers who were acting as kidney donors were paid around Rs 300,000 ($4,500), and the kidneys were then resold by middlemen or touts at a massive profit. Thus, prohibiting commercial surrogacy might create a similar underground market, breeding illegal and disguised surrogacy. This is likely to further threaten the interests and rights of surrogate mothers. [39: Bera, Sayantan and Doval, Nikita (2016), India govt moves to ban commercial surrogacy for LiveMint. Available at https://www.livemint.com/Politics/iJaMugwI57XmKANE1juUnO/Cabinet-clears-bill-on-surrogate-motherhood.html (Last visited Apr 5th 2019)] [40: Chandran, Rina (2016), Mumbai police suspect poor targeted for organs in kidney transplant racket for Reuters. Available at https://www.reuters.com/article/us-india-trafficking-kidney/mumbai-police-suspect-poor-targeted-for-organs-in-kidney-transplant-racket-idUSKCN0ZZ1G4 (Last visited Apr 5th 2019)]

Studies have shown that surrogates are mostly financially-deprived women who are hired by the upper and middle strata of society. Privately-owned infertility clinics serve as intermediaries between surrogates and intending parents. These clinics charge desperate couples huge amounts — mostly foreigners and people belonging to the higher-income classes — who are willing to spend hefty amounts to have a baby. On the other hand, surrogates — who generally do not have an alternative source of similar income — are paid scantily. This Bill, when it takes effect, is likely to cause illegal surrogacy, which will aggravate the existing inequality, as surrogates will lose any right to payments. [41: Rimm, Jennifer (2009), “Booming Baby Business: Regulating Commercial Surrogacy in India”, University of Pennsylvania Journal of International Law,30 (4):1429-1462]

The regulatory mechanism under the Bill primarily focuses on surrogacy, ignoring various other assistive reproductive technologies. Experts point out that it is also exclusive in its stance, seeking to deny otherwise suitable individuals, who are within their rights to demand access to regulated surrogacy services, based on their sexual orientation or marital status.[42: Saravanan, Sheela (2013), “An ethno-methodological approach to examine exploitation in the context of capacity, trust and experience of commercial surrogacy in India”, Philosophy, Ethics, and Humanities in Medicine, 8(10)]

Since the demand for surrogacy is not expected to wane, such restrictions, regardless of well-placed intentions, may prove to be disastrous in the longer run as it will run the risk of pushing the business of surrogacy underground, endangering those the law seeks to originally protect—the mother and the child.

Concluding Reflections

The Bill’s main object is to prevent ‘exploitation’, however, as has been explained through this chapter, the understanding of this exploitation is extremely moralistic. Since the womb is considered sacred, a gift of God, and a blessing for a woman to fulfil her purpose of being born- procreation, it is hard to understand and accept it as a site of labour.

This non acceptance is what has led to the Courts favouring the commissioning parents’ rights over those of the surrogate mothers time and again. It is also this threat to the ‘natural’ understanding of motherhood that makes the government look at altruistic surrogacy as a viable option, since there is no ‘payment’ involved, but ban commercial surrogacy for fear of exploitation.

As has been mentioned even by the Parliamentary Standing Committee Report, women relatives can also be very deeply exploited in altruistic surrogacy arrangements. The Bill and the Report both discuss exploitation in a similar tone, but the Report goes a step further in recognizing the possibility of it in altruistic arrangements, and suggesting regulation of commercial ones instead of a blanket ban. The culmination of these critiques and final reflections follow in the concluding chapter of this dissertation.

The Judiciary in India has played an integral role in developing the discourse around commercial surrogacy. In the present chapter, this dissertation would examine the response of the judiciary in India and elsewhere in the world to the phenomena of commercial surrogacy, highlighting the issues that have arisen for judicial determination and the principles laid down by the judiciary.

Legislative Vacuum in India and the Importance of Judicial Responses

The situation of commercial surrogacy in India is that of ‘legality without legislation’[footnoteRef:1], and has had to extensively, thus, be dealt with by Courts. Issues such as whether the parent country of the commissioning couple recognizes and accepts the citizenship of the surrogate child are of great importance since The Citizenship Act of India does not accord citizenship to a child born out of surrogacy and such matters can leave the child in a no-man’s land where citizenship is denied from both countries. This is an important issue for consideration since it directly harms the child who is not at fault and this factor should be a prerequisite for surrogacy agreements. [1: There exists no law regulating surrogacy, but there is none banning/ restricting it either.]

Increased use of technology by commissioning parents beget a child would have a great impact on the social structure, meaning of family, the institution of marriage and it will affect the social norms, morals and ethics in the society. Further, the use of surrogacy by aged and disabled persons will raise the issues of maintenance and welfare of the child. Therefore it is necessary to determine the criteria regarding the use of surrogacy by individuals other than married infertile couples.[footnoteRef:2] [2: Kaumudhi Challa,”Contentious Issues in Surrogacy : Legal and Ethical Perspectives in India”’ Vol.1, 2012 Christ University Law Journal (117 to 126) at 121]

Further, the validity of Surrogacy contracts in India is unknown. The law relating to surrogacy is vague and uncertain. A large number of countries consider surrogacy contracts illegal while some others have their own laws for their regulation. In India, it is generally criticized that surrogacy contracts are opposed to public policy because they involve the use of womb by a woman for begetting a child to be handed over to the other party on payment of money, which is like renting of womb and selling of child[footnoteRef:3]. It is to be noted that a contract opposed to public policy is void contract according to the Indian Contract Act, 1872. Thus the legality of surrogacy contracts is uncertain.[footnoteRef:4] [3: Watson, Clara. (2016). Womb Rentals and Baby-Selling: Does Surrogacy Undermine the Human Dignity and Rights of the Surrogate Mother and Child?. The New Bioethics. 22. 1-17. 10.1080/20502877.2016.1238582.] [4: Kaumudhi Challa,”Contentious Issues in Surrogacy : Legal and Ethical Perspectives in India”’ Vol.1, 2012 Christ University Law Journal (117 to 126) at 121]

There are currently no statutes regulating surrogacy in India. Due to the legislative vacuum that has existed, judgments have been the main mode in which rights of parties came to be defined. And hence the judgments of courts on the issue become of prime importance.

Leading Cases

The substantial issue of surrogate arrangement was presented for the first time before the Supreme Court of India in Baby Manji Yamada’s case[footnoteRef:5]. In this case a Japanese couple entered surrogacy contract pursuant to which Baby Manji was born to the Indian surrogate mother. The commissioning father Mr. Yamada tried to secure travelling document to take the baby to Japan. But the Japanese Embassy in India refused to grant Manji a Japanese passport or visa as the Japanese Civil code did not recognize surrogate children. Mr. Yamada then tried to file for an Indian passport for Manji, which requires a birth certificate for its issuance. Further, a birth certificate according to Indian law requires the names of both mother and father. In the present case, Mr. Yamada was the genetic father but ambiguity for authorities arose in case of mother’s name because Baby Manji had three mothers- commissioning mother, the anonymous egg donor, and the surrogate. Thus, authorities refuse to grant a birth certificate. Consequently, the Indian passport was refused. The court instead of giving any decision, ultimately directed the petitioner, the baby’s parental grandmother, to the National Commission for Protection of Child Rights for further directions, which directed that the grandmother become the legal guardian of Baby Manji. [5: Baby Manji Yamda v. Union of India and another AIR 2009 SC 84: (2008) 13 SCC 518]

The Court gave no guidelines in this case, and since the surrogacy contract did not cover a situation such as this, nor did any existing laws help to clarify the matter- both, the parentage and the nationality of Baby Manji were impossible to determine under existing definitions of family and citizenship under Indian and Japanese law. The situation soon grew into a legal and diplomatic crisis. The case of Baby Manji illustrated the complexity and challenges faced by institutions in the face of commercial surrogacy arrangements.

The unresolved question of the surrogate mother as natural mother was revisited in the Supreme Court of India[footnoteRef:6] as a challenge to a ruling given by the Gujarat High Court in Jan Blaze v. Anand Municipality[footnoteRef:7]. In this case a childless German couple had twins through a surrogate mother with the help of Anand infertility clinic, Gujarat. As German laws do not recognize surrogacy as a means of parenthood, they would not allow the children to be treated as German citizens born out of surrogacy. To avoid the foreseeable legal hurdle of immigration process, the couple approached the Gujarat High Court for permitting their surrogate children to carry Indian passports. The court in this case along with the citizenship and issuing of passport to twins, was also concerned with the gestational surrogate mother and donor of ova[footnoteRef:8]. The Gujarat High Court said that the surrogate must be considered the “natural mother” of the twins, thus granting them passports- a reasoning that seemed tailored towards recognizing the twins as Indian citizens and issuing Indian passports for them. [6: R. Sedhuraman, Why no to Surrogacy Laws, Asks SC. 16th December 2009 (Wednesday) The Tribune 2] [7: AIR 2010 Guj 21] [8: A woman who carries a pregnancy and gives birth to a child for another woman or couple. For a woman to serve as a gestational carrier, an embryo (created by the process of in vitro fertilization) is implanted in her uterus.]

The court found that in absence of any legislation to the contrary, it is inclined to recognize the gestational surrogate who has given birth to the child as natural mother and anonymous egg donor cannot be regarded as natural mother. Considering the commissioning mother, the court held that she is just the wife of the biological father, who has neither donated the ova nor conceived or delivered the babies, and thus, cannot in the absence of legislation be treated as legal mother and she can never be the natural mother. The reasoning, though sufficient to grant passports for the children sets a discriminatory standard, measured against which, no adoptive mother or commissioning mother can ever seek to be called a child’s natural mother. Even in subsequent cases, contentious issues have been dealt with on a case to case basis, with no set standard followed, apart from the courts seemingly inclined to look after the best interest of the child. Nonetheless, Indian courts have not yet comprehensively addressed surrogacy, leaving the task to the legislature.[footnoteRef:9] [9: Jasdeep Kaur,”Surrogacy: A Paradox Regarding Motherhood Rights With Special Reference to India”, Vol II No.1, 2012 The Legal Analyst (113 to 121) at 119.]

Internationally, in the year 2010, a gay couple, Dan Goldberg and Arnon Angel from Israel to whom twin male infants were born in Mumbai from an Indian surrogate mother, were stranded in India after the refusal of the Jerusalem Family Court to allow a paternity test to initiate the process for Israeli citizenship for the twins. The issue was debated in the Knesset (Israeli Parliament) where Prime Minister Benjamin Netanyahu had to intervene so that the infants could be brought to Israel following legal procedures. Ultimately, in appeal, the Jerusalem District Court, accepted the claim that it was in the best interest to hold a DNA paternity test to establish that Dan Goldberg was the father of the twins, Itai and Liron[footnoteRef:10]. [10: Aditi Tondon , “Gay Couple Realises Parenthood Dream In India” The Tribune, February 17, 2010]

The DNA sample of Goldberg and the twins were brought to the Sheeba Medical Centre in Israel which established Goldberg as the father of the infants. After being stranded in Mumbai for over 3 months, Goldberg and his twin baby boys returned to Israel in May 2010 after being granted Israel passports. In K. Kalaiselvi v. Chennai Port Trust, Represented by the Chairman, Chennai[footnoteRef:11]

Maternity Benefit Act, 1961, Madras Port Trust (Leave) Regulations, 1987, the petitioner was working as an Assistant Superintendent in respondent/Port Trust who requested the respondent for sanction of maternity leave to look after newly born girl child and reimburse medical expenses and also to issue (family’s medical insurance) FMI Card incorporating newly born child through representation. The main issue involved was whether the petitioner working in the Chennai Port Trust was entitled to avail maternity leave similar to that of leave provided under Rule 3-A of the Regulations in the absence of any legal provision and even in case where she gets the child through an arrangement by ‘surrogate parents’. The respondent cancelled leave granted for a period of 59 days and rejected request for inclusion of female child in FMI card. Hence, the instant writ petition was filed. [11: W.P.No.8188 of 2012;decided by Madras HC on 4th March, 2013.]

The Madras High Court did not find anything illegal about petitioner having obtained a child through surrogate arrangement. When once it was admitted that said minor child was daughter of petitioner and at the time of application, she was only one day old, she was entitled for leave akin to persons who are granted leave in terms of Rule 3-A of the Regulations. Even in case of adoption, adoptive mother did not give birth to child, but yet necessity of bonding of mother with adoptive child was recognized by Central Govt. It was held that the petitioner was entitled for leave in terms of Rule 3-A of the Regulations[footnoteRef:12]. Thus, respondent was directed to grant leave to petitioner in terms of Rule 3-A of the Regulations recognizing child obtained through surrogate procedure. The petition was thus allowed. [12: Rule 3-A

Leave to female employees on adoption of a child

A female employee on her adoption a child may be granted leave of the kind and admissible (including commuted leave without production of medical certificate for a period not exceeding 60 days and leave not due) upto one year subject to the following conditions :

• (i)the facility will not be available to an adoptive mother already having two living children at the time of adoption;
• (ii)the maximum admissible period of leave of the kind due and admissible will be regulated as under :
• (a)If the age of the adopted child is less than one month, leave upto one year may be allowed.
• (b)If the age of the child is six months or more, leave upto six months may be allowed.
• (c)If the age of the child is nine months or more leave upto three months may be allowed.]

This particular case showed a progressive move towards an inclusive understanding of motherhood by the Court. It not only acknowledged the commissioning mother’s right to leave, but also understood the need of the child to be looked after, and kept it above everything else. The principle propounded in this case, was further relied on in Sadhna Agrawal vs State Of Chhattisgarh[footnoteRef:13], P. Geetha vs The Kerala Livestock Development Board Ltd[footnoteRef:14], Dr. Hema Menon vs. State of Maharashtra[footnoteRef:15] and T. Priyadharsini vs The Secretary To Government[footnoteRef:16][footnoteRef:17]. However, all these judgments indicate a sharp difference in the judicial concern for the commissioning mother as opposed to preventing exploitation or protecting rights of the surrogate. [13: 2017 SCC OnLine Chh 19] [14: 2015 SCC OnLine Ker 71] [15: (2015) 5 AIR Bom R 370] [16: W.P.(MD) No.9227/2015] [17: Even though this wasn’t a surrogacy case.]

In P. Geetha, Justice Nadu opines, For Robert Brown, all love begins and ends with motherhood; by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood. It is no longer an indivisible instinct of a mother to bear and bring up a child. With advancement of reproductive science, now, on occasions, the bearer of the seed is a mere vessel, a nursery to sprout, and the sapling is soon transported to some other soil to grow on. Now, it is Law’s turn to appreciate the dichotomy of divine duty, the split motherhood.

The tone of ‘divine duty’ shows the bias of the judiciary that favours commissioning mothers over surrogates. It seems to imply that commissioning mothers at least want to perform their true duty of bringing up a child, and fulfil their purpose of being a woman, whereas the surrogate mothers are immorally disassociated from their purpose, and are acting in a way that is not natural. It severely attacks the free choice that a surrogate makes to become one, and bear a child for a commissioning parent, and also criticizes the surrogate for exercising her bodily autonomy.

Even though it seems at first that the paramount consideration of the courts has been the welfare of the child, since Courts have recommended that the welfare needs of the children should be at the heart of the decisions taken in cases involving surrogacy arrangements, what also needs to be asked is what exactly constitutes the best interests of the child? Since there is no strict legal definition of the same, can this vague concept not be used as a way of furthering judicial arbitrariness and bias, that leans towards the commissioning parents (mothers) than the surrogates? It also becomes imperative to ascertain as to what would be the remedy available to biological parent/s to obtain exclusive legal custody of surrogate children; how can the rights of the surrogate mother be waived off completely; how can the rights of the ovum or sperm donor be restricted; and how can the genetic constitution of the surrogate baby be established and recorded with authenticity, and whether any of it is justifiable.

Courts in India have had to rely on Constitutional principles to adjudicate on cases related to surrogacy, and the approach has often been one of acknowledging the rights of the commissioning parents, as well as looking after the best interest of the child. In Rama Panday v. Union of India[footnoteRef:18], placing reliance on the Baby Manji[footnoteRef:19] judgement, the Court noted that: [18: WP(C) No. 844 of 2014] [19: Supra, note Manji ]

In my opinion, where a surrogacy arrangement is in place, the commissioning mother continues to remain the legal mother of the child, both during and after the pregnancy. To cite an example: suppose on account of a disagreement between the surrogate mother and the commissioning parents, the surrogate mother takes a unilateral decision to terminate the pregnancy, albeit within the period permissible in law for termination of pregnancy – quite clearly, to my mind, the commissioning parents would have a legal right to restrain the surrogate mother from taking any such action which may be detrimental to the interest of the child. The legal basis for the court to entertain such a plea would, in my view, be, amongst others, the fact that the commissioning mother is the legal mother of the child. The basis for reaching such a conclusion is that, surrogacy, is recognized as a lawful agreement in the eyes of law in this country.

This interpretation of the Court located the maternal rights of the commissioning mother right from conception. The Court worked towards not only championing the rights of the commissioning mother but effectively stripping the surrogate of the little power she might have in the arrangement. The quote above indicates the judicial inclination towards protecting commissioning parents’ rights as compared to the surrogate mother, which may sometimes be cloaked in the ‘best interests’ principle. Why is the judiciary doing this? Is it a bias against surrogates because they are ‘hiring’ their wombs commercially – a role that judges may feel needs to be undertaken by women altruistically? It is this murky terrain of ‘exploitation’ that can seep into such arrangements, that the legislature and executive have decided to ‘remove’ through the proposed ban on commercial surrogacy. These steps have been discussed in the next chapter of this dissertation.

While judiciary is leaning towards commissioning parents, the legislature is leaning towards protecting surrogate mother’s rights (from exploitation etc.), albeit in a manner not benefitting her. In the fourth chapter of this dissertation, this dichotomy will be examined.