It is stated that commercial surrogacy is legal in India. Is it and what does it mean? A way to explore this complex subject is with the judgment of the Supreme Court of New Jersey in the Baby M Case, given almost 30 years back, in the early years of assisted reproductive technology (ART). The judgment has been a guiding light in all jurisdictions on the subject of surrogacy.
William Stern entered in a surrogacy contract with Mrs. Whitehead to conceive his child through artificial insemination. At birth, the new born was to be handed over to William and his wife, ending all rights of the mother over the child. A daughter was born, whom Mrs. Whitehead named Sara. Mrs. Whitehead got attached to Sara but nevertheless gave her away. The same evening, stricken with sadness, she got Sara back on the promise of returning her a week later. A week later, it became clear to the parties that she would not return the child. William moved the court to get Sara back. The trial court, recognising the contract to be binding, gave custody of Sara to William. The case came in appeal before the Supreme Court of New Jersey.
The court found surrogacy in itself ‘no offense to our present laws.’ That is, the existing law did not prohibit women conceiving through assisted reproductive technology. The current state of law in India may also be the same. The law has not contemplated ART. As a result, the activity is beyond the text of the law and thus, not prohibited.
The court, however, found the surrogacy contract void (invalid) and not binding. This was on two grounds. A contract which violates the law or circumvents the law is void. The substance of the contract was adoption – a mother would give away her child and maternity rights but the adoption laws of the state prohibited paying or accepting money for adoption. The court went as far as describing the contract as ‘baby-selling’. In no civilised society can there be space for money in a mother giving away her child and maternity rights. In India, while surrogacy is new, adoption and adoption laws have been there for long. There is no space for a person buying parental rights. For example, Section 17 of the Hindu Adoptions and Maintenance Act 1956 prohibits receiving or paying for adoption.
Secondly, a contract opposed to public policy of the state is void. The court found the contract opposed to public policy. The policy of the state was that, to the extent possible, a child should be raised by both the parents. If a dispute were to arise, the custody of a child was to be decided by what was in the best interest of the child. The contract, to the contrary, committed custody of the child to William and his wife, even before the child was conceived. The court noted on the contract:
It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and her maternal fitness; and it does all of this, it accomplishes all of its goals, through the use of money.
Sanctity of parental bonds and wellbeing of the child are universal values and would be embedded in the policies of all states. In India, borrowing from British common law, agreements interfering with parental rights and duties is a recognised head of public policy for a contract to be void. Thus, in a Baby M-like case in India, where the surrogate is the genetic mother, the surrogacy contract may be void and not binding on the commissioning parents and the surrogate.
A new technology, in vitro fertilisation, was just about coming up when the Baby M case was decided. In this, an ova (egg) is fertilised with sperm in a lab and the embryo, thus developed, is placed in the surrogate, leading to pregnancy. Ideally, the commissioning parents would contribute the ova and sperm and get their own genetic off-spring through the labours of the surrogate. The surrogate carries the pregnancy and delivers but bears no genetic connection with the child. Who then is the legal mother of the child? If the surrogate is the legal mother, the principle of Baby M case gets extended to the new technology and the surrogacy contract may be void. This will leave the surrogate without any remedy if the commissioning parents were to refuse to pay or take the custody of the child. If the woman contributing the ova is the legal mother, new dimensions open. The answer to the question, however, goes beyond just the validity of the surrogacy contract. It impacts the rights of custody and maintenance of the child, nationality and inheritance.
The Gujarat High Court has applied itself to this novel question in Jan Balaz v. Anand Municipality. Recognising that there is no law on the subject, the court reasoned that merely by providing the ova, ‘a woman will not become a natural mother.’ It is the surrogate mother, who carries the child in her womb, who deserves to be the natural and legal mother. With the surrogate as the mother, the twins who resulted from the surrogacy, born as they were to an Indian citizen, were thus Indian citizens. This gave them the right to get passports. The passport authorities had refused passports on the ground that the twins were not Indian citizens.
The government of India has challenged the decision and the case is pending before the Supreme Court. Resolving the question of motherhood alone would not be adequate. It is a complex subject with numerous dimensions. It needs comprehensive legislative attention. This is the reason the Supreme Court has asked the government to legislate on the subject. The Baby M case too, recognising the potential of in vitro fertilisation, had ended with noting that both society and legislature need to resolve different aspects of the emergent technology.
The author is Professor at IIM, Ahmedabad. The views expressed are of the author and not the institution.