An International, Moral & Legal Perspective: The Call for Legalization of Surrogacy in India

Abstract

The advent of new scientific reproductive technologies has conjured up novel and seemingly intractable normative debates about bioethics and contemporary values in the field of family law. Surrogacy, incontrovertibly, is the most controversial of them all. In recent times, India is witnessing a spurt in cases of commercial surrogacy due to two factors: a medical tourism boom fuelled by low medical costs and a status-conscious middle class seeking to fulfill its financial needs. Commercial surrogacy, however, is against public policy enshrined in Article 23 of the Constitution of India and Section 23 of the Indian Contract Act, 1872. The courts are still to grapple with the legal implications of surrogacy agreements and the state of law, as a whole, remains inadequate due to complex ethical and moral questions involved. Thus, there is a need for the legislature to shed its odious inertia and balance individual rights against public policy considerations through legislation. This paper endorses the need for legalization of non-commercial surrogacy from the perspective of positive fundamental right of procreation guaranteed under Article 21 of the Constitution of India and the compelling state interest in maintaining the "rule of law" supported by international practice. Furthermore, it suggests a legal framework consisting of elements which are indispensable for addressing moral and ethical concerns surrounding surrogacy.