LAW AND SURROGACY: CONCEPTUALIZING THE RIGHT TO LIFE OF A FETUS AND THE SURROGATE MOTHER
Updated: Aug 28, 2020
By-Arunav Bhattacharjya,3rd year, BA LLB. (Hons.) student at National Law University and Judicial Academy Assam.
RIGHT TO LIFE OF AN UNBORN CHILD
The fetus of an unborn child posses equal and similar rights as the mother does under Article 14 of the Indian Constitution and is also ensured with the Right to life under Article 21. The fetus is never anything other than a human from the time of conception. The beginning of human life is considered from the moment of fertilization, as at this point, the fertilized egg begins to develop into a separate and unique human being. The Right of a fetus includes the Right to water, food, seemly environment, breath, shelter, proper conditions of living, health care, reputation, personal security, etc. Therefore, the fetus in the womb of the surrogate mother has the right to breathe and to get adequate nutrition from the mother. There are two components of the Right to bodily integrity and liberty that are ‘choice’ and ‘consent.’
It is a medically proven fact that from the time of conception, life starts. The Supreme Court of USA in Webster v. Reproduction Health Services held that the life of a human being begins right from the very genesis of conception. In Davis v. Davis, it was held that as a matter of law, human life begins right at the time of birth. In India, the practice of abortion is deemed illegal illustrated from Section 312 to 316 of the Indian Penal Code, 1860. The Hindu Succession Act, 1956, under Section 20 specifies that a child who at the time of death of intestate is in the womb and is later on born alive shall have the Right to inherit the intestate, hence acknowledging an unborn child as a complete individual.
Moreover, the fetus is also entitled to bring an action under torts. A fetus, like any other individual, has the Right to sue, and the mother alone shall not be bestowed upon the Right to terminate the pregnancy when there is no grave danger or risk to her life as submitted by the panel of doctors. Therefore, the state should not discriminate between children who have taken birth and children who are still in the womb of their mothers. Thus, the state has an obligation under Article 21 of the Constitution of India to not only protect the life of the unborn child from arbitrary termination of pregnancy, but also ensure equal protection of the law under Article 14.
Various statutes in India has tried to define unborn child as a legal person by fiction. Life of a foetus does not commence from the stage of conception but when it is in embryonic stage and within fourteen days of the process of fertilization of the embryo. Medical professionals opine that that an unborn foetus starts to have impulsive growth and development right from the very beginning of conception. If life is purported to exist right from the beginning of conception, then the Right to life also commences from that stage. Article 21 of the Indian Constitution interprets the word ‘person’ that applies to all human beings and also includes the unborn progeny at every step of the gestation period of the mother. The Medical Termination of Pregnancy Act 1970 fails to provide regarding a woman’s Right to terminate a pregnancy beyond 20 weeks if there are possibilities of foetal abnormalities. The latest amendment to the Act extends the time cap to 24 weeks. Additionally, the Prevention of Abortion Act, 1971 as it currently based, also does not permit abortion solely on the request of a woman, but guidance from a medical practitioner is required before making a decision. One important reason for this said provision is to avert and bring down the instances of the muddle of female foeticide in the country.
COMMODIFICATION OF WOMEN AND CHILDREN IN SURROGACY
The practice of surrogacy as a way of attaining motherhood for couples having issues with infertility has gained disrepute among certain sections of society who advocate rights be given to the surrogate mother and prevent unjust discrimination in practice against the surrogate mother. The growth of commercial surrogacy around the world has raised with necessity a genuine cause of concern with regards to the scope and exploitation meted out in the market. The particular objection to commercial surrogacy is that it goes on to commodify the reproductive capacity of a woman and subsequently commodifies the child born out of such procedures. A report from the Quebec Council for the Status of Women stated that reproductive technologies are risking mothers by breaking up the reproductive process, which leads to alienation of the mother from their own choice of reproductive capacity. Furthermore, once a woman agrees to be a surrogate mother for the intending couple, she has to follow up on various terms and conditions as stipulated in the contractual agreement that has to be followed during the entire pregnancy process. After she gives birth to the child, she must give up all her rights over the child to the intending couple. This whole process of the stipulated arrangement is psychologically damaging for the mother.
Women’s rights activists challenge the assertion that contractual pregnancy, i.e, a surrogacy agreement, devalues the reproductive autonomy of a woman in the general course of nature. In their opinion, which is in line with Marxist perspective, when the market norms are applied to the ways women are exploited for their reproductive labour, they are reduced from the subject of consideration to objects of use. The primary concern here is that “contractual pregnancy like surrogacy commodifies both the woman’s reproductive labour and the child in ways which undermines the autonomy and self-worth of a woman and the love parents owe to their foster children.” They asserts the fact that the state has a due obligation to protect the dignity, autonomy and the integrity of women who are in the surrogacy industry. Some strand of feminist views have also expressed concerns regarding the threat of the woman’s freedom, and in particular who are from poor background from commodification of their bodies.
This distinct view that surrogacy arrangements commodifies the reproductive capacities and autonomy of women is based on the premise that when labor resources are allowed for exchange through a contractual agreement, the resources are commodified in lieu of a valid consideration. A crucial objection to the legality of a surrogacy contractual agreement is that the arrangement is nothing but a method of baby selling as the child becomes the object of consideration of the contractual agreement between the prospective couple and the surrogate mother. In the agreement, the surrogate mother is paid compensation for handling the baby over to the intended parents after completion of delivery of the child and rearing the child through the pregnancy period, undergoing various medical procedures. In the light of these dispute, it is truly asserted that there is an exchange of baby and parental rights in lieu money in such contractual agreements, which also commodifies the reproductive capacity of the surrogate mother.
 Emandi Ranga Rao, Right to life of Foetus – Verification of laws in the context of female Foeticide, INTERNATIONAL JOURNAL OF LAW, ISSN: 2455-2194 (Volume 3, Issue 2), pg. 33-39
 Panda Dr. Bhavani Prasad, “The Foetus: From PNDT Act 1994 to Pre-conception and PNDT Act to CEHAT 2003”, AIR 2004 JOURNAL SECTION, p. 257
 Webster v. Reproduction Health Services, 106L Ed. 2d 410 (1989); see also Hill v. Colorado, 530 U.S. 703 (2000)
 Davis v. Davis (1989) 15 FLR 2097; see also, Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.747 (1986)
 The Hindu Succession Act, 1956, Section 20
 Asween Kaur, Mother and the Fetus- A Socio-Legal Conflict, BHARATI LAW REVIEW, Jan-Mar 2016
 G.V Ramiah, Right to Conceive vis-a-vis Right to Birth, AIR 1996, JOURNAL SECTION P.136
 Elizabeth S. Anderson, ‘Is women Labor is commodity’ PHILOSOPHY AND PUBLIC AFFAIRS Vol 19 No.1, 1990.
 Rakhi Ruparelia, ‘Giving away the ‘gift of life’: Surrogacy and the Canadian Assisted Human Reproduction Act’ CANADIAN JOURNAL OF FAMILY LAW, 11 (2007), at p 26.
 M.V McLachlan and J.K Swales, ‘Babies Child Bearers and commodification’, HEALTH CARE ANALYSIS, 8:1 18,2000,
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)