An Overview of the Current ART, the Dilemmas They Surface, and the Role of DLPBA in the Positive Law

The last few decades have witnessed dramatic changes affecting the institutions of family and parenthood. If, in the past, the classic family was defined sociologically as a pair of heterosexual parents living together under one roof along with their children, different sociological changes have led to a rapid and extreme transformation in the definitions of family, marital relations, parenthood, and the relationship between parents and children. Dr Yehezkel Margalit explores whether and to what extent there is room, legally and ethically, for the use of modern contractual devices and doctrines to privately regulate the establishment of legal parentage. This book offers intentional parenthood as the most appropriate and flexible normative doctrine for resolving the dilemmas which have surfaced in the field of determining legal parentage. By using the certainty of contract law, determining the legal status of parenthood will be seen as the best method to sort out ambiguities and assure both parental and children rights.

Determining Legal Parentage: Between Family Law and Contract Law

Cross-border reproductive care has been thrust under the international spotlight by a series of recent scandals. These have prompted calls to develop more robust means of assessing the exploitative potential of such practices and the need for overarching and normative forms of national and international regulation. Allied theorisations of the emergence of forms of clinical labour have cast the outsourcing of reproductive services such as gamete donation and gestational surrogacy as artefacts of a wider neoliberalisation of service provision. These accounts share with many other narratives of neoliberalism a number of key assertions that relate to the presumed organisation of labour relations within this paradigm. This article critically engages with four assumptions implicit in these accounts: that clinical labourers constitute a largely homogeneous underclass of workers; that reproductive labour has been contractualised in ways that disembed it from wider social and communal relations; that contractualisation can provide protection for clinical labour lessening the need for formal regulatory oversight; and that the transnationalisation of reproductive service labour is largely unidirectional and characterised by a dynamic of provision in which ‘the rest’ services ‘the West’. Drawing on the first findings of a large-scale ethnographic research project into assisted reproduction in India I provide evidence to refute these assertions. In so doing the article demonstrates that while the outsourcing and contractualisation of reproductive labour may be embedded in a wider neoliberal paradigm these practices cannot be understood nor their impacts be fully assessed in isolation from their social and cultural contexts.

https://mh.bmj.com/content/medhum/41/1/32.full.pdf

Narratives of neoliberalism: ‘clinical labour’ in context

It is unclear what proper remuneration for surrogacy is, since countries disagree and both commercial and altruistic surrogacy have ethical drawbacks. In the presence of cross-border surrogacy, these ethical drawbacks are exacerbated. In this article, we explore what would be ethical remuneration for surrogacy, and suggest regulations for how to ensure this in the international context. A normative ethical analysis of commercial surrogacy is conducted. Various arguments against commercial surrogacy are explored, such as exploitation and commodification of surrogates, reproductive capacities, and the child. We argue that, although commodification and exploitation can occur, these problems are not specific to surrogacy but should be understood in the broader context of an unequal world. Moreover, at least some of these arguments are based on symbolic rhetoric or they lack knowledge of real-world experiences. In line with this critique we argue that commercial surrogacy can be justified, but how and under what circumstances depends on the context. Surrogates should be paid a sufficient amount and regulations should be in order. In this article, the Netherlands and India (where commercial surrogacy was legal until 2015) are case examples of contexts that differ in many respects. In both contexts, surrogacy can be seen as a legitimate form of work, which requires the same wage and safety standards as other forms of labor. Payments for surrogacy need to be high enough to avoid exploitation by underpayment, which can be established by the mechanisms of either minimum wage (in high income countries such as the Netherlands), or Fair-Trade guidelines (in lower-middle income countries such as India). An international treaty governing commercial surrogacy should be in place, and local professional bodies to protect the interests of surrogates should be required. Commercial surrogacy should be permitted across the globe, which would also reduce the need for intended parents to seek surrogacy services abroad.

/pdf/regulating-the-international-surrogacy-market-the-ethics-of-3z64dahp78.pdf

Regulating the international surrogacy market:the ethics of commercial surrogacy in the Netherlands and India.

For the survival of all forms of life, procreation is essential. However, natural procreation is not always scientifically possible. As such, the practice of surrogacy and the use of Assisted Reproductive Techniques have become more widely recognised and accepted in societies all over the world. However, various complex and controversial issues are bounded in such practices. The Surrogacy (Regulation) Bill, 2019 introduced by Government of India makes an attempt to eradicate some of those issues associated with surrogacy. Nevertheless, the legislation seems to be in derogation to the Constitution of India and universal human rights. This study is designed to substantiate in detail the right to be a surrogate in light of the constitutional mandate along with an evaluation of the eligibility criteria to be a surrogate and its consequences with regard to the existing legal framework. Besides, the economic perspective of exploitation of surrogates via banning of commercial surrogacy has been briefly discussed. The discussion under this study is expected to put forward an essential perspective to the right to be a surrogate in relation to a woman’s right to life and personal liberty. Further, prohibiting commercial surrogacy may push practicing surrogates towards other economically unrewarding, poorly regulated and potentially hazardous forms of employment or even make them subject to human trafficking. Therefore, recognition of the right to be a surrogate vis-à-vis the Surrogacy (Regulation) Bill, 2019, would help in avoiding blatant miscarriage of universal justice while upholding the supremacy of the Constitution of India.

/pdf/right-to-be-a-surrogate-biological-constitutional-and-42jat1jlqz.pdf

Right to be a Surrogate: Biological, Constitutional and Economic Perspectives

I INTRODUCTION Commercial surrogacy in India is currently estimated to generate more than USD2 billion in revenue annually (1) The procedure that became legal in India in 2002 is different from other countries which have adopted the same practice in one very critical way--India does not strive to provide a rare solution for infertile couples, but instead seeks to maintain hegemony in an increasingly viable industry (2) This booming market comes at a dangerous time because India has no laws in place to protect the rights of the surrogate (3) The Indian Government has put forward a bill to legally codify the use of assisted reproductive technologies (ARTs), but this bill has neither become law nor contains essential provisions needed to protect the rights of surrogates (4) This piece will analyze those failures in light of relevant international treaties to which India is a party, and identify key provisions that must be included in any legislation enacted by the Indian government in order to adequately protect surrogates against human rights abuses (5) II INTERNATIONAL NORMS AND SURROGACY Currently, no international treaty exists to regulate the practice of surrogacy around the globe, which results in many complex questions of private international law between states (6) Even within the United States, surrogacy laws differ from state to state, creating complicated legal situations (7) In many countries, commercial surrogacy is completely banned, while in others, such as India and Ukraine, it remains highly unregulated, resulting in commercial surrogacy tourism (8) Women in countries with limited regulations, often nations with very poor populations, will enter into commercial surrogacy arrangements that often violate their rights as women and workers as recognized under international treaties and norms (9) These international treaties should serve as a framework in evaluating the rights and treatment of these women in underdeveloped, unregulated nations (10) While no international treaty currently regulates surrogacy, and in particular the treatment of women as surrogates, various international treaties have specifically recognized and promoted women's rights over the last thirty years (11) Examples include the right to be free from all forms of discrimination, the right to adequate health care, the right to a family, and the protection of reproductive rights (12) In countries where commercial surrogacy is allowed, these basic fundamental rights, as enshrined in multiple international treaties and conventions, should be protected by domestic law and regulations (13) The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted by the United Nations in 1979 sheds significant light on the need to address women's rights on a global scale (14) The Convention broadly asserts to protect women's cultural, economic and social rights (15) The Convention takes particular notice of the right of pregnant women to be free from discrimination (16) The Convention requires that States take "all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men" (17) More particularly, the Convention seeks to ensure for women "the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction" (18) Article 16 of the Convention further requires states to "take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations" (19) In addition to the Convention, the International Covenant on Civil and Political Rights (ICCPR) plays a vital role in promoting human rights as they regard commercial surrogacy (20) In 1976, the United Nations adopted the ICCPR, recognizing the most basic human rights, such as the right to life, as fundamental rights shared by humanity as a whole …

Caroline Vincent

Papers

Liberation or Exploitation: Commercial Surrogacy and the Indian Surrogate