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Legislation to control surrogacy favoured

NEW DELHI: The Law Commission has recommended to the Centre to enact legislation to regulate Assisted Reproductive technology (ART) clinics, as well as the rights and obligations of parties to a surrogacy.

The Commission, headed by Justice A.L. Lakshmanan, in its 228th report, said: “the growth in the ART methods is recognition of the fact that infertility as a medical condition is a huge impediment in the overall well-being of couples and cannot be overlooked especially in a patriarchal society like India. A woman is respected as a wife only if she is mother of a child, so that her husband’s masculinity and sexual potency is proved and the lineage continues.”

It said, “The problem arises when parents are unable to construct the child through the conventional biological means. Infertility is seen as a major problem as kinship and family ties are dependent on progeny. Herein, surrogacy comes as supreme saviour. The legal issues related to surrogacy are very complex and need to be addressed by a comprehensive legislation. Surrogacy involves conflict of various interests and has inscrutable impact on the primacy unit of society, viz family.”

The Commission, which took up the subject suo motu, said: “Non-intervention of law in this knotty issue will not be proper at a time when the law is to act as an ardent defender of human liberty and an instrument of positive entitlement. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational.”

It said: “active legislative intervention is required to facilitate correct uses of the new technology, i.e., ART, and relinquish the cocooned approach to legalisation of surrogacy adopted hitherto. The need of the hour is to adopt a pragmatic approach by legalising altruistic surrogacy arrangements and prohibit the commercial ones.” The report pointed out that a legislation dealing with surrogacy would help reduce the chances of various kinds of child abuse in cases of adoption.

Stating that legalising surrogacy would be a boon for childless couples, the Commission recommended comprehensive provisions dealing with pre and post-surrogacy period and also the rights and protection of a surrogate mother, the child, as well as the intending parents.

It said, Comparative cost advantage in India had made it a favourable destination for foreign couples and a whole branch of medical tourism had flourished on the surrogate practice. “It seems that wombs in India are on rent which translates into babies for foreigners and dollars for Indian surrogate mothers,” the report said.

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