Surrogacy is a contract for services which are highly personal in nature, and which are intended to bring social and familial contentment to the commissioning parents through childbirth.
Artificial reproduction gives childless families a chance to fulfil a basic human need, that would otherwise be impossible to achieve. However, surrogacy contracts raise several critical questions, abortion being one of them.
The issue of abortion is essential inasmuch as it constitutes a breach of contractual obligations. The commissioning parents contract with the surrogate and take significant steps to set the gestational process in motion, by relying on the reasonable expectation that there would be no abortion. If the contract is breached by the surrogate, the parents are left without alternatives. Thus, one may assert that the question of abortion, unless resolved at the time of entering the contract, might disturb the interests of the parties along the nine months of the contract.
The draft Assisted Reproductive Technology (ART) Bill to regulate surrogacy which was introduced in Parliament in 2010 made an attempt to resolve the issue of abortion by mandating that any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act that would harm the foetus during pregnancy,1 thus offering some legal “guarantee” to the commissioning parents. However, in the opinion of this author, an anti-abortion clause of this sort raises important questions such as who then has the right to abort, can the law force the surrogate to waive her right to abortion in advance, and what remedies, if any, are available to the parties in the event of such a breach?
Who Holds the Right to Abort?
This article’s first contention to the anti-abortion clause in the draft bill is that it is in conflict with the constitutional rights of the parties to a surrogacy contract. The commissioning parents have a right to procreative freedom, which includes the right to contract with collaborators for the purpose of bearing children. Likewise, the surrogate has the right to make an intimate personal decision about reproduction, which would also include abortion. Although not enumerated in the Constitution, both the right to procreation and the right to abortion are two competing variants of the right to life and personal liberty under Article 21 of the Constitution,2 they represent a woman’s right to choose whatever she does with her body3 and hence, the choice to procreate or abort should essentially belong to her if Article 21 has to have any meaning for her. However, unlike the right to procreation, abortion refers to freedom from bondage imposed by compulsory pregnancy.
The conflict between these rights can arise in two situations. In the first situation, a surrogate may want to abort, but the commissioning parents decide to defend their right to procreative freedom by bringing a suit for specific performance of the contract. In this situation, it needs to be determined whether a court would impose an injunction upon the surrogate, for the reason that if a surrogate has no right to abort, it amounts to battery and undue hardship in the form of physical imposition of compulsory pregnancy and abrogates her right against exploitation.
In the second situation, the commissioning parents may wish to abort the foetus if they discover serious complications in prenatal or postnatal health of the foetus or even for personal reasons. If the commissioning parents intend to get the foetus aborted, then the surrogate may treat it as a breach of contract. But when the surrogate decides not to abort, then the dilemma that courts would face is whether it is just and proper to order an abortion-on-demand. If, instead, the court allows the surrogate to carry the foetus till child-birth, then this may lead to unwanted parenthood for the commissioning parents, which is at least an equally disastrous situation.
Some proponents of surrogacy would argue that the surrogacy contract was entered into with the free will of the surrogate. Some others would argue that the surrogate is in a relationship of trust with the commissioning parents and such duty of trust and loyalty requires that a surrogate refrain from exercising her personal interests against the interests of the beneficiaries. Given this fiduciary relation with the commissioning parents, it may appear correct to compel a surrogate to fulfil her duties.
However, on a closer look, it is worth noting that in traditional reproduction, parenthood is not derived from mere spousal relationship, but rather from the intention of the couple, which means that any decision to bear children is to be mutually agreed upon by both partners. At the same time, agreeing to an intercourse does not mean that the wife has no right to abort. The law grants the decision to abort exclusively to the woman and she can terminate the foetus, if she so wishes. If we were to treat traditional reproduction from the perspective of contract law, it would mean that for the reproductive process to be valid, free consent to carry the foetus should exist throughout the term of the contract, not just at the time when the contract is made by the couple.
The moment this underlying consent is lost, the contract of reproduction stands breached and thereafter there is no contract between the couple. If that be so, then why should a surrogate, who is only a substitute carrier, be deprived of equal protection under law for the same act? A surrogate undergoes the same bodily conditions and mental associations with the foetus as is the case in traditional reproduction and it would be a legal fiction to claim that a surrogate woman is not in the same position as an ordinary woman. Since neither the husband nor parents can overrule a woman’s decision to get an abortion, the draft legislation cannot give the right to prevent abortion to the commissioning parents or the courts.
A court may, however, use the principle of state interest to protect a future child and mandate that a surrogate cannot abort (or even ask the intending parents to accept the surrogate’s decision to bring a future child to life). In India, Section 312 of the Indian Penal Code, 1860 makes it unlawful for a woman to cause herself to miscarry, while Section 3 of the Medical Termination of Pregnancy, 1971 allows exercise of abortion rights only under certain circumstances. The imposition of state interest, however, achieves nothing beyond restricting the unlimited application of the abortion right by the contracting parties and interfering with their private choices.
No state interest can have enough force to overturn a woman’s fundamental right of abortion and “until the child is brought forth from the woman’s body, our relationship with it must be mediated by her” (Gallagher 1987). Moreover, since a future child is a non-person, it can be easily argued that no third person is harmed when a surrogate chooses to abort. Hence, no matter how compelling the request of the commissioning parents is, the constitutional validity of the surrogate’s right to abortion must be upheld.
Test of Ethics
To fully answer the question of who holds the right to abort, one must also pass the test of ethics. Many critics have held that in surrogacy the interests of wealthy commissioning parents are better served than those of the surrogates.4 Surrogates, especially in the third world countries like India, belong to a lower socio-economic segment and the monetary compensation is necessary to motivate many women. As the United States Supreme Court had pointed out in the landmark case of Baby M5 that the “essential evil is...taking advantage of a woman’s circumstances”, an anti-abortion clause would therefore impose a totalitarian intervention into a woman’s life.
Hence, any disregard by the court of the decisions of a surrogate will ultimately subordinate the surrogate by establishing the notion that her reproductive capacity is a mere mechanical device, and may create mala fide incentives to employ poor women as providers of commercial service to consumers. As Robertson writes: “…whether one reproduces or not is central to personal identity, to dignity, and to the meaning of one’s life” (Robertson 1994), it is to be understood that there is a certain higher degree of priority attached to this right, because it overtly appeals to human nature and society and is greater in scope than a private contract and greater in priority than the reproductive autonomy of the commissioning parents (Radin 1982). Further, since abortion and surrogacy come under the realm of family laws, merely using theories of commercial contracts to justify anti-abortion clauses is not entirely correct. Due consideration should have been given to these aspects in the draft legislation.
Can the Right to Abortion Be Waived?
The doctrine of waiver is based on the premise that a person is his best judge and being so, he has the liberty to waive the enjoyment of his rights. From the literal meaning of Section 34(23) of the bill, it seems that the intent of the law is to require the surrogate to irreversibly waive her right to abort in advance. Consent to a contract (an action that is inconsistent with the exercise of her right to abort) may thus amount to an immediate forfeiture of her right. Many obiter dicta from Indian courts, however, point to the fact that there is a strong presumption against the waiver of constitutional rights. In Muthiah vs CIT, AIR 1956 SC 269, the Court held that it is not open to a citizen to waive any of the fundamental rights.
These rights are not merely for the benefit of the individual, but as a matter of public policy for the benefit of the general public. In Basheshar Nath vs CIT, 1959 AIR 149 1959 SCR Supl (1) 528, it was held that there could be no waiver not only of the fundamental right enshrined in Article 14, but also of any other fundamental right guaranteed by Part III of the Constitution. The Constitution made no distinction between fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of the public policy. There could, therefore, be no justification for importing American notions or authority of decided cases to whittle down the transcendental character of those rights, conceived in public interest and subject only to such limitations as the Constitution had itself thought fit to impose. Article 13(2) was in terms a constitutional mandate to the state in respect of all the fundamental rights enacted in Part III of the Constitution and no citizen could by waiver of any one of them relieve the state of the solemn obligation that lay on it.
A precondition to waive a right in advance by consent, is that a person doing so must not lack sufficient awareness of the relevant circumstances and likely consequences of the waiver. The judge in the Baby M case indicated that surrogate never makes a completely voluntary, informed decision because any decisions prior to the childbirth are compelled, by contractual and monetary concerns. The legislation has not given much attention to this and probably presumed that consent to a contract is the same as fully informed consent. To prevent this, it is preferred that the right to abortion be preserved in whole and not be waived irrevocably to the commissioning parents. Just as criminal defendants cannot consent to irreversibly waive the right to be present at trial in a capital case or the right to plea incompetence to stand trial or just as no person by consent can waive his right to natural justice, so too a surrogate must be allowed to change her mind even after she has given her consent to waive her rights when she signed the contract (Kreimer 1984).
In addition to this, if the surrogate does not have the choice to exercise her bodily integrity and personal will during the time of service, then the commissioning parents are not only purchasing the surrogate’s labour, but also acquiring rights over her body for their benefit. Therefore, it is important to ensure that the surrogate is not under a binding agreement because then the surrogate retains control over her body while using it for the benefit of the other party. If the draft legislation makes an advance waiver provision void, it would end many of the ethical concerns over surrogacy. The right to waive must exist in the bill, but at the same time, a provision should be there to exercise the right any time later in the contract. Thus, the surrogate can opt not to avail herself of her right to abort or to carry her life in whatever way she wants.
Remedies for Breach of Contract
Commercial surrogacy has been a legal practice in India since 2002, and the ART Bill allows the payment of any sum of money to the surrogate other than that which is needed to meet her medical and insurance costs. In a surrogacy contract, the commissioning parents also normally pay the surrogate sums of money over regular intervals and reserve a certain sum of money as the final payment after the child is delivered. The surrogate is denied the final payment if she aborts. The obvious question then is whether this final payment is to purchase the title rights to the newborn child.
The Supreme Court of Kentucky in Surrogate Parenting vs Com Ex Rel Armstrong 704 SW2d 2o9 (Ky 1986) considered whether a distinction could be drawn between payment for gestational services and payment for the title rights to the child. The court held that payments to the woman under a surrogacy contract were for her services, not the baby. The premise used by the court was where a woman could not be forced by contract to forgo her parental rights, there was no selling of the baby. In India’s ART Bill it is settled that a surrogate must relinquish parental rights,6 which will only logically follow when we presume that there is a sale of the baby.
The author believes that no rational parents who arrange for surrogacy would like to admit either that the price paid is the price of the child, but rather this payment is just an end reward or fee for the services of the surrogate. Such an admission, however, leaves the commissioning parents with no remedy against the surrogate who aborts against their wish. To earn damages, the commissioning parents would have to show the court that they lost some value or worth. But this means that the court would have to calculate the monetary value of a pregnancy and then put a price on the child. This is highly utopian and also unethical, and no court would allow this.
Some surrogacy proponents may argue that a reasonable monetary penalty should be imposed upon the breaching surrogate (as is the practice in many other contracts), but considering the subjective nature of a parent’s association with a newborn child, the author believes that no amount of penalty would really leave the disheartened parents satisfied. Hypothetically, even if there is such an amount that could satisfy the parents, it would probably be very large. If the contract in itself contains a clause for payment of penalty by the breaching surrogate, then the immediate question that comes to mind is how and by what methods the commissioning parents determined the penalty amount. Clearly, a predetermined penalty could be the disguised price of the newborn child.
Thus, simply put: where the surrogate’s service gets interrupted by abortion, no damages would probably be available to the parents; the latter should, from the time of entering into contract, compulsorily take on the risk that the surrogate may not carry the child to term. With regards to the sums already paid to the surrogate, it is unlikely that any claim for recovery will be sustained given that in a personal services contract, the party not in breach “accepted” the performance of the party in breach until the date of breach, and has an obligation to pay for such performance. If the sum promised is in the nature of a reward, it may not be paid; but if such sum is in the form of fees, then the surrogate may claim part-payment for the duration of service she provided.
In the circumstance where the surrogate ignores the parents’ demand for abortion, the commissioning parents should be absolved of their obligation to pay rewards, fees or any other costs for the surrogate, otherwise it would be highly inequitable for the parents who no longer have a contract or expect to have a child. The surrogate, in turn, should from here on assume all the risks and expenses associated with the gestation and future custody of the child, similar to a woman in traditional reproduction who carries her foetus to term and bears all costs and custody, when she goes against the wishes of her husband.
Just as the legislation ought to uphold the surrogate’s personal decision not to abort, it should also provide the surrogate full legal parenthood rights over the child where the parents walk out of the contract, overriding Section 34(4) of the Bill. This will serve two purposes, (a) it will counterbalance the risk that the commissioning parents have already taken assuming the surrogate might abort, and (b) it will act as a deterrent to the surrogate who after all was not willing to add another child to her household in the first place. Alternatively, legislation or courts may allow the surrogate to put the child up for adoption.
India being a favourite destination for fertility tourism, it is important for the legislative and judicial arm to see that, while on the one hand, the letter of the law changes to keep up with changing scientific evolutions and social experiments, on the other, adequate controls are inserted to fortify the spirit of law. The enforceability and validity of surrogacy contracts is not under question because of its immense benefits but the implications of any legislation on anti-abortion that operates against the constitutional rights of the contracting parties need to be reconsidered. Rules that pass up enhanced controls might come to be accepted considering the value-shaping effect of law, but we must not stop questioning whether these values are in consonance with the more deeply-felt and universal notions of human good and behaviours.
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