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Published : March 12, 2016 | Author : bhanwaradityajadon
Category : family law | Total Views : 795 | Unrated

  
bhanwaradityajadon
have done LLB from Campus law center, university of Delhi , LLM from Indian Law institute, supreme court , New Delhi,CS(F) from ICSI, new Delhi, PGD in IPR from Indian Law institute, New Delhi, Practicing in Supreme Court, Delhi High Court, M.P.High Court, bench at Gwalior, CAT, Consumer Commissions and other Tribunals including M.P. Revenue Board at Gwalior.
 

Surrogonomics: A Minting Methodology

Frankly Speaking: There is no such word to be found in the dictionary yet the same has gained prominence over the recent years. In fact, the prominence is such that the same has become the source of livelihood for many destitute households. Let us therefore make an endeavor pursuant to which we shall be able to make any understanding of it. The phrase Surrogonomics is a conglomeration of science and economics i.e. Surrogacy and Economy. The elementary connotation of surrogacy may reveal that lending a womb is actually helping those who aspire to become biological parents but their own biology does not confer this privilege on the better half among the parents. Many of us would think that the aforesaid over simplification of the character of surrogacy is not exhaustive in nature. In fact, had it been so, than I would not have thought of post-fixing the phrase of surrogacy with Economics. The veracity of the phrase can be put to test by merely visiting a brothel, which I did, and a quick chat with the sex worker would go on to prove that there is another element to the lives of such workers. It was revealed by one of the workers that ‘lending a womb’ is more profitable than merely sleeping with their customers. Welcome to the age of surrogacy or rather an age of ‘Surrogonomics’.

Surrogonomics: An Ancient Concept

Many of us would do away with the fact that the surrogacy is not a modern concept. It might interest them that surrogacy is so ancient that even the syllabus of our ancient history would look contemporary if the two were brought into comparison among each other. The evidence which can be adduced in support of the aforesaid contention lies in the study of the great epic of Hindu mythology: The ‘Mahabharatha’. It was through the process of surrogacy, the great five warriors known as Pandavas were came into being. However, not many people have compelled their cognitive faculties to conclude as to what could have been the motive behind putting ‘Maharani Kunti’ to surrogacy. The reason was the desire of a successor for a Kingdom as the king himself was impotent and unable to further the procreation. So the economics driven surrogacy is not a new concept but an ancient concept to reckon with.

Surrogacy driven Economy or Vice-versa: causa sine quo non

In the present times, it is rather difficult to conclude as to which of the two is the cause and other a ramification of that cause. In other words, whether Surrogacy is the sine quo non for economy or vice-versa. It depends on the perception of a person i.e surrogate mother and the commissioning parent(s). The Surrogate mother would often be driven by the economy which is the causa sine quo non for her to become the surrogate mother but on the other hand, the commissioning parent(s) would urge to give surrogacy more prominence than that of the money which they have agreed to pay to the surrogate mother.

Dr A.R. Lakshmanan, Chairman, Law Commission of India in his letter dated 5th August, 2009 bearing No. D.O. No. 6(3)/157/2009-LC (LS) addressed to Dr. Veerappa Moily observed as to how critical is the evolution of the Law of Surrogacy in the contemporary world. The excerpt of the letter dated 5th August, 2009 is hereas under:

“The growth in the ART methods is recognition of the fact that infertility as a medical condition is a huge impediment in the overall wellbeing 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. Some authors put it as follows: The parents construct the child biologically, while the child constructs the parents socially. The problem however arises when the 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 a supreme savior”.

“The legal issues related with 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 primary unit of society viz. family. Non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. 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. Active legislative intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto. The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.”

Surrogonomics and its Legality in India

It is often said that surrogacy is legal when the contractual intention is legal. It is rather easier said than done. How would one know as to what intentions had been mushrooming during the currency of the contract of surrogacy? It might interest the reader that there are working females who in the event of being pregnant takes a ‘paid maternity leave’ from their employer and on the other hand, the same lady being a surrogate mother also get heavily paid by the commissioning parent(s).There is no such law in India to curb the menace of commercial surrogacy of this nature. In fact, the Law Commission of India in its 228th report on Assisted Reproductive Technology Procedures has recommended that such an arrangement of Surrogacy shall not be for commercial purpose. The question therefore persist that can a mere guidelines of the Indian Council for Medical Research guidelines (2005) or a recommendation by the Law commission is sufficient or stringent action may be required to curb the menace of surrogacy driven economics.

As stated aforesaid, the Law commission also reiterated the paucity of law on the governance of the menace of Surrogacy. However, the commission went a step ahead in deriving out some governance mechanism, an excerpt of which are here as under:

“Surrogacy in India is legitimate because no Indian law prohibits surrogacy. To determine the legality of surrogacy agreements, the Indian Contract Act would apply and thereafter the enforceability of any such agreement would be within the domain of section 9 of the Code of Civil Procedure (CPC). Alternatively, the biological parent/s can also move an application under the Guardians and Wards Act 1890 for seeking an order of appointment or a declaration as the guardian of the surrogate child.”

“ In the absence of any law to govern surrogacy, the 2005 Guidelines apply. But, being non-statutory, they are not enforceable or justiciable in a court of law.”

The Commission also observed that a strenuous endeavor is required to curb the menace of commercially motivated surrogacy, an excerpt of which is here as under:

“Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society viz. family. Non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. 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. Active legislative intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto. The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.”

Commercialization of Commercial Surrogacy

Commercial Surrogacy is a positive phenomenon but only when seen in dichotomy to the dilemma of commercialization due to the latter being pejorative. It is to be noted that the phrase commercial is an implication of the contract by virtue of which the precedents of the Contract of Surrogacy are determined whereas the phrase commercialization implies an employment avenue by virtue of which a female may enrich herself financially. It was therefore observed by the Hon’ble Supreme Court of India in the case “Baby Manji Yamada vs Union of India & Anr” that commercial Surrogacy may be allowed but commercialization of Surrogacy shall not be allowed. In fact, a careful perusal of the said judgment would reveal that the element of commercial surrogacy shall be premised on Altruistic Surrogacy in order to weed out the element of commercialization which is based merely on earning a livelihood.

Conclusion:
It is therefore believed that the Lone Surrogacy or commercialization detached surrogacy may have the law in their favor but the subjects of the law or the so-called law abiding citizens may not get well-tuned with the concept of Lone Surrogacy. This is probably happening as the Surrogate mothers may not have understood the distinction between the commercial surrogacy and the commercialization of surrogacy. The substantive blurring of the bifurcating line may well have been the cause for surrogacy being treated as a source of livelihood.

It is therefore not sufficient to find a legal answer to such a problem. In fact, the answer may need an all-pervasive horizontal as well as vertical hierarchical approach and shall be inclusive of the stake holders. It is also necessary to determine the opportunity cost in shifting the alternatives otherwise the whole process of determining the prudent solution may turn into futility.




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