Commercial Surrogacy in India: An Ethical Assessment of Existing Legal Scenario from the Perspective of Women’s Autonomy and Reproductive Rights

Abstract

This article explores the reasons behind the rising popularity of commercial surrogacy in India against the backdrop of the landmark Baby Manji case, and its implications for the existing legal scenario and the debate on reproductive rights. It also highlights some ethical frames that have been applied in the Indian context. These include (a) the liberal feminist principle of women’s choice and freedom, which accepts contractual surrogacy as a service, as opposed to the socialist feminist principle of equity and fairness which regards it as potentially exploitative given the lack of economic opportunities to the surrogate, and (b) the extended equity principle, which questions India’s propriety in allowing “outsourcing” of pregnancy in a country with a dismal record of maternal mortality. In other words, a comparison is made between the reproductive rights and access to reproductive health facilities available to the average poor Indian woman with that available to the surrogates. The article argues that although these moral issues are pressing, they will not be resolved soon; therefore, it is important to consider legislation to regulate the surrogacy arrangements in India so that the welfare and the rights of the surrogates are safeguarded and exploitive practices minimized.

Keywords:

• Surrogacy
• India
• Baby Manji
• freedom of contract
• reproductive rights
• reproductive health
• Draft ART Bill 2010