Amit Pathak
“Right to Life of Foetus or Right to abortion of a Surrogate Mother -Remedy to parents for breach of surrogacy contract”
Abstract
Background:
Union health ministry’s Assisted Reproductive Technologies (ART) Regulation Bill, 2010 , which is pending with the law ministry for its approval seeks to regulate Surrogacy in India. An Article “India: becoming a Surrogate Pregnancy Hub” in a renowned National Newspaper, discussed the increase of Surrogate Pregnancy in India with the help of interview of fertility and gynecology expert, saying: “Surrogate pregnancy, an assisted reproductive technique (ART) in which a woman carries in her womb the baby of another woman, has seen a spurt in India. Due to the healthier lifestyles of to-be mothers and lower costs compared to the West, the country could become a global hub in the field. The reason why surrogate pregnancy is rising is mainly because of the low-cost factor, and the preferably healthy lifestyle of Indian women, much needed during pregnancy.” The Preamble of the Bill clearly addresses the need of Surrogacy in India: “It is estimated that 15 percent of couples around the world are infertile…… infertility is one of the most highly prevalent medical problems. The magnitude of the infertility problem also has enormous social implications. Besides the fact that every couple has the right to have a child, in India infertility widely carries with it a social stigma. In the Indian social context specially, children are also a kind of oldage insurance.” Due to Infertility and accompanying social issues, the couples opt for surrogacy.
The word ‘surrogate’ has its origin in Latin ‘surrogatus’, past participle of ‘surrogare’, meaning a substitute, that is, a person appointed to act in the place of another. Thus a surrogate mother is a woman who bears a child on behalf of another woman, either from her own egg or from the implantation in her womb of a fertilized egg from other woman. The New Encyclopedia Britannica defines ‘surrogate motherhood’ as the practice in which a woman bears a child for a couple unable to produce children in the usual way.
Hon’ble Supreme Court in the case of Baby Manji Yamada v. Union of India has discussed: “The word “surrogate”, from Latin “subrogare”, means “appointed to act in the place of”. The intended parent(s) is the individual or couple who intends to rear the child after its birth. Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child, she will not raise but, hand over to a contracted party. She may be the child’s genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.” The ART Bill defines “Surrogacy” under Section 2(aa) as “means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate”. Section 2(bb) defines “surrogate mother”, as “a woman who is a citizen of India and is resident in India, who agrees to have an embryo generated from the sperm of a man who is not her husband and the oocyte of another woman, implanted in her to carry the pregnancy to viability and deliver the child to the couple / individual that had asked for surrogacy”. Some of the technical issues have not been dealt in the ART Bill: Firstly, Termination of Pregnancy, whose shall be the last decision, Mother or that of the Parents under Surrogacy Contract? Secondly, Right to Life of the Fetus, legal systems recognizing the Right? And lastly, for breach of Surrogacy Contract, the entitlement of Parents to Compensation? The enumerated Issues are discussed here in detail.
Termination of Pregnancy the last decision of Mother or the Parents:
According to Black’s Law Dictionary, Abortion is an artificially induced termination of a pregnancy for the purpose of destroying an embryo or foetus. According to, The Oxford English Dictionary, Abortion is an act of giving untimely birth to offspring, premature delivery, miscarriage; the procuring of premature delivery so as to destroy offspring. P. Ramanatha Aiyer’s The Law Lexicon, defines ‘Abortion’ as, the delivery or expulsion of the human foetus prematurely, (i.e.,) before it is yet capable of sustaining life. The unlawful destruction or the bringing forth prematurely, of the human foetus before the natural time of birth. To cause an abortion is unlawful, unless it is done in good faith for the purpose of saving the life of the mother. Wharton’s Law Lexicon defines, Abortion as, a miscarriage, or a premature expulsion of the contents of the womb before the term of gestation is completed.
Abortion is an Offence except done in Good Faith or for Therapeutic Purposes. The ingredients of the Offence under Section 312, IPC, are that the accused voluntarily does some act to cause a woman with a child or quick with a child or quick with a child to miscarriage and that he did not cause the miscarriage in good faith in order to save the mother’s life. This Section deals with the causing of miscarriage with the consent of the woman. ‘With Child’ means pregnant, and it is not necessary to show that ‘quickening’, that is, perception by the mother of the movements of the foetus, has taken place or that the embryo has assumed a foetal form, the stage to which pregnancy has advanced and the form which the ovum or embryo may have assumed are immaterial. As stated in Modi on Medical Jurisprudence and Toxicology, at the first perception of “quickening” or the foetal movement by the mother, she is said to be “quick with the child”, and occurs at any time between 18-20 weeks. The sensation of quickening may be simulated flatulence and peristaltic movements of the intestines, especially in the nervous or hysterical woman, who is anxious to have children, although she is not pregnant. This is known as pseudocyesis or phantom pregnancy, or spurious pregnancy. The section speaks of miscarriages only, which has no where been defined in the Indian Penal Code. However, miscarriage, in its popular sense, is synonymous with abortion, and means expulsion of the immature foetus at any time before it reaches full growth. ‘Miscarriage’ is the premature expulsion of the child or foetus from the mother’s womb at any period of pregnancy before the term of gestation is completed. Medically, three distinct terms, viz., abortion, miscarriage and premature labour, are used to denote the expulsion of a foetus at different stages of gestation. Thus a term, abortion, is used only when an ovum is expelled within the first three months of pregnancy, before the placenta is formed. Miscarriage is used when a foetus is expelled from the fourth to the seventh month of gestation, before it is viable, while premature labour is the delivery of a viable child possibly capable of being reared, before it has become fully mature. As per Black’s Law Dictionary, the word ‘Abortion’, in the dictionary sense, means no more than the expulsion of a foetus before it is capable of living. In this sense it is a synonym of ‘Miscarriage’.
Section 312, I.P.C. Allows abortion only on therapeutic (medical) grounds in order to protect the life of the mother. That is to say, the unborn child must not be destroyed except for the purpose of preserving the yet more precious life of the mother. The provisions by implication recognize the foetus’ right to life. The Medical Termination of Pregnancy Act, 1971 provides for the termination of pregnancy by Registered Medical Practitioners, where its continuance would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health or where there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
According to the provisions of the Medical Termination of Pregnancy, Act, 1971, the legal deterrence against procuring abortions was diluted by Section 3(1), which provides for the protection against 312 and 315 of Indian Penal Code. The Medical Termination of Pregnancy Act, 1971, permits conditional termination of pregnancy. Section 3(2) of the Medical Termination of Pregnancy Act, 1971 provides as: “When pregnancies may be terminated by registered medical practitioners – (2)…a pregnancy may be terminated by a registered medical practitioner, (b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioner are, of opinion, formed in good faith, that – (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health…….” Under Section 3 of The Medical Termination of Pregnancy Act, 1971, there must be at least two Registered Medical Practitioners of the opinion for termination of pregnancy, where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks. Section 2(d) of the Medical Termination of Pregnancy Act, 1971 defines “registered medical practitioner” as a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956, whose name has been entered in a State Medical Register and who has such experience or training in gynaecology and obstetrics as may be prescribed by rules made under this Act.” Rule 4 of the Medical Termination of Pregnancy Rules, 2003 provides for the Experience and training under clause (d) of Section 2 of the Medical Termination of Pregnancy Act, 1971.
The European Commission recognized the Right to life of the fetus however it was of the opinion, that even if some protection were to be given, it would be limited to protecting the life and health of the pregnant, which must remain paramount. The Court was confronted with the question as to whether Art. 2 of the European Convention for the protection to Human Rights and Fundamental Freedom, which provides “Everyone’s to Right to Life” shall be protected by law, is applicable to ‘Unborn’ life or not. The Court refused to include unborn life in its definition of the term ‘everyone’ as pleaded by the Austrian Government because some states did not recognized the Right to Life for human beings yet unborn and held that the term ‘Everyone’ is limited to ‘born human Beings’. It was illogical to include protection to unborn life in the Convention since it provides for the deprivation of life in certain specified cases. In current medical practice, the age of viability is determined by the state of life support facilities available. It is to be twenty Four weeks in the west and twenty eight weeks of intrauterine life in India. The right to life of Surrogate mother has been recognised under various International Conventions and National Constitutions. Everyone has right to life, liberty and the security of the person. Article 21 of the Constitution of India provides for the Right to Life to a person.
Section 312 to 316 of the Indian Penal Code cover the act of procuring abortion and punishment thereof. These are essentially based on the old concept abhorrence of destroying a foetus. But it laid only one condition permitting abortion i.e., primarily to save the life of the mother. This was so considered as the foetus is after all is a parasite and has less claim to life, than the host viz., the mother. The concept of preserving life has been clarified better since Rex v. Alec Bourne. Section 3 to 5 of the Medical Termination of Pregnancy Act, 1971 are more or less an exception to the provision of IPC on Abortion. The woman’s right to abortion is not on this view, necessarily dependent upon proving that the foetus is not a person. Even if the foetus is a person, it might be argued that pregnant woman have the right to use self defence in order to protect themselves from the physical invasion of unwanted pregnancy. Rajasthan High Court while deciding the Constitutional validity of Section 3(2)(a) and (b) and Explanations I and II to Section 3 of the Act and not violative of Article 21 of the Constitution of India decided that, Sections 312 and 315, IPC, when read together make it clear that the object of the Act was to make the provisions relating to termination of pregnancy stringent and effective rather than to permit blatant termination of pregnancy. Section 312 of the IPC made causing miscarriage an offence except in good faith for the purpose of saving the life of the woman without laying down the manner in which pregnancy could be medically terminated. Section 3 of the Act provides the guidelines or limitation within which the pregnancy could be terminated.
Remedy to Parents under Surrogacy Contract:
“Surrogacy Agreement” defined in Section 2(cc) of the Bill as “a contract between the person(s) availing of assisted reproductive technology and the surrogate mother”. Section 34(1) of the Bill provides that, “Both the couple or individual seeking surrogacy through the use of assisted reproductive technology, and the surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable.” The Surrogacy Contract between the Surrogate mother and the Parents is treated as a simple agreement and is governed by Indian Contract act, 1872 and Specific Relief Act, 1963. Abortion amounts to breach of Surrogacy contract. Parents may ask the Surrogate mother for Specific Performance of Contract. Section 10 of the Specific Relief Act, 1963 provides for the specific performance of contract in the cases where, the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. Under Section 42 the Court may also grant injunction to aid the specific performance of a negative agreement contained in the terms of contract. Various kinds of reliefs are available for the breach of Contract. The remedy for the non-performance of a duty are (1) compensatory, (2) specific. Under Section 73 of the Indian Contract act, 1872 and Section 21 (1) and (2) of the Specific Relief Act, 1963, the Parents would be entitled for compensation for the breach of the Contract i.e., Abortion. Where the Contract becomes impossible of performance for no fault of plaintiff, Court can award compensation in lieu and substitution of Specific performance. Measure of Compensations will be by the standards of Section 73 of the Contract Act. In the computation of damages under the Contract, the provisions of the Contract Act, 1872 and/or the terms of the Contract would be relevant. The Intention of the parties should be gathered from the terms of the Contract in while determining the damages.
Right to Life of Fetus:
Regard for sanctity of the embryo from the moment of conception is enjoined by the Hindu Scriptures. Thus, the destruction of a foetus is condemned as a heinous offence equal to Brahmahatya. In this condemnation, no distinction appears to have been made between different stages of gestation. The Garbhoponishad, which gives a meticulous account of the development of the foetus from the moment of conception of the mother, it states that from the second day after the entry of the male semen into the female uterus, the semen gets thickened and from the 8th day it takes the shape of a ball which is transformed into a lump after 15 days, leading to the creation of the head and the legs after two months. It follows that it would be an offence if the embryo is destroyed even at the nascent stage.
That the existing law of India in the Penal Code, enacted as early as 1860, acknowledges that an embryo is entitled to legal protection of the unborn child’s right to life is evident from Section 315. Section 312 of Indian Penal Code provides punishment of imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine to the woman causing miscarriage to a child. By treating the act of procuring an abortion as an offence, an implicit protection has been provided to the foetal right. Section 20 of the Hindu Succession Act, 1956 has conferred a right to succeed to the father’s estate on a child who was in the mother’s womb when the father died intestate. Under Section 3 of the Medical Termination of Pregnancy, 1971, Abortion is allowed only under certain circumstances, for example, continuance of pregnancy would risk life of pregnant woman or there is substantial risk of physical or mental abnormalities in the unborn child. Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act, 1994 prohibits the pre-natal tests of sex determination of the foetus, through which unborn female child could be protected. After expiry of three months, the foetus then presumable has the ‘capability of meaningful life outside the mother’s womb’ and this stage is known as “quickening” i.e., when the foetus first starts recognizable movement in the Uterus. At this, state acquires compelling interest to protect potential. Article 2 of the West German Constitution, 1949, provides-
1. Everyone shall have the right to the free development of his personality insofar as he does not violate the rights of the others or offend against the constitutional order or the moral code.
2. Everyone shall have the right to life and to inviolability of his person. The liberty of the individual shall be inviolable. These rights may only be encroached upon pursuant to a law.
In Abortion Reform Law Case, the West German Constitutional Court laid down the following proposition: “
1. “Everyone” in Art. 2 includes an unborn being;
2. Human life exists in embryo from the fourteenth day of the conception;
3. It is the duty of the State to protect and promote the life of the foetus and defend it from unlawful interference by other person;
4. The right of development accrues in the foetus from mother’s womb and is not complete even after birth;
5. If the foetus was considered only as a part of the maternal organism, termination of pregnancy would be remained entirely in the sphere of private life, not warranting public interferences. But because the foetus is “an autonomous human being” under protection of constitution, termination of pregnancy has a social dimension which demands public regulation;
6. The constitution also protects a woman’s right to free development of her personality, which includes freedom to decide against parenthood. But this right is not guaranteed without limitations. The right of others, the constitutional order, and the moral code all restrict it;
7. A Compromise which guarantees both protection of foetus as well as the freedom of abortion of a pregnant woman is impossible because termination of pregnancy always mean “destruction of unborn life”. The legal order cannot, therefore, make a woman’s self determination, the principle of its regulations. On the other hand, protection of foetus must be given priority to the woman’s right of self determination;
8. The state is to effectively fulfil its duty to ‘protect’ “developing life”. In discharging this duty the state is to make a reasonable adjustment between unborn right to life and woman’s right to her own life and health. The unborn’s right to life can lead to burdens for the woman which sharply exceed those of a normal pregnancy. In such a case, the state may exempt the pregnant woman from punishment for destroying the foetus where there is necessary to protect the pregnant woman from a threat to her life or a threat of a serious impact on her health or other cases, where the burden is extraordinary; and
9. The duty of the court is not to put itself in the legislator’s place, but to determine whether the legislator has fulfilled its duty to protect the “developing life” and made a reasonable adjustment between the right of the unborn and the right of the pregnant woman.”
Art. 40(3)(3) of the Constitution of Eire (inserted in 1983) enjoins the State to reconcile the right to life of an unborn child with the right to life of the mother. Hence where the abortion was not required to save the life of the mother, damages or injunction may be available to protect the unborn child. In U.S.A. , following propositions may be deduced so far from the judicial decisions as regards to the status of the foetus:
a. The word ‘person’ in the 14th Amendment means a human being after birth and not foetus. It follows that the right to life does not begin from the conception.
b. It cannot be denied, however that there is a potentiality of life in the embryo from the moment of conception, so that the state may take this into consideration in regulating the mother’s right to abortion.
The American Supreme Court has introduced the test of ‘viability’, according to the period of pregnancy. (i) During the first three months of pregnancy, the potentiality of life in the embryo is not viable and abortion at this stage is less risky or fatal to the mother. Hence, the state may refrain from exercising its right of regulation of the mother’s right to abortion, leaving it to be the decision of the mother and her physician. (ii) After expiry of three months, however, “the foetus then presumably has the capability of meaningful life outside the mother’s womb”. This stage is otherwise known as ‘quickening’, i.e., when the foetus first starts recognizable movement in the uterus. At this stage, therefore, the state acquires compelling interest to protect potential.
In Roe v. Wade, the Constitutional validity of state criminal abortion legislation was considered which prohibited abortion except by medical advice for the purpose of saving the mother, it was contended that woman’s right to terminate the pregnancy is absolute and that she is entitled to terminate the pregnancy for whatever reason she chooses. The court upheld the right to privacy, but at the same time held that the same is not absolute and the state can interfere and regulate the freedom for ‘compelling state interests’. It was held that the child birth endangers the lives of some women, voluntary abortion ‘at any time and place’ regardless of medical standards would impinge on a rightful concern of society. The woman’s health is part of that concern as is the life of the foetus after quickening. These concerns justify the state in treating the procedure as medical one. In Webster v. Reproductive Health Services et al the Court was asked to decide the constitutionality of Missouri Statute regulating the performance of abortion. In the preamble of the Statute, it was provided “that life of each human being begins at conception” and that “unborn children have protectable interests in life, health and wellbeing” and required that all state laws be interpreted to provide unborn children with the same rights enjoyed by the persons subject to the federal constitution. The Court decided that the preamble simply expressed a value judgment without going into its constitutionality. The provision in Act which prohibited any public employee within the scope of his employment to perform or assist an abortion not necessary to save the life of the mother was held valid.
Conclusion
India probably is the only nation in the world which exclusively enshrines female deities in artistically built temples. The Meenakshi temple at Madurai, Ambabai temple at Kolhapur and the Shantadurga and Mahalaxmi temples at Goa are ample proof of the Hindu reverence for female deities. India has also been proud of women’s extraordinary ventures in the field of welfare, politics, art, literature and of late, sports. However, these women who forged themselves undauntedly in a male dominated milieu are exceptions. These women established their identity due to their special upbringing, push of circumstances, familial factors and the motivation of freedom fighters and reformers. India boasted of a woman prime minister.
This paper attempted to state and analyzes the various types of violence trampling her human rights beginning with the female foetus. and going on till old age. Sex selective abortions and increase in the number of female infanticide cases have become a significant social phenomenon in several parts of India. It transcends all castes, class and communities and even the North South dichotomy. The girl children become target of attack even before they are born. Numerous scholars have observed that the latest advances in modern medical sciences – the tests like Amniocentesis and Ultra-sonography which were originally designed for detection of congenital abnormalities of the foetus, are being misused for knowing the sex of the foetus with the intention of aborting it if it happens to be that of a female. The worst situation is when these abortions are carried out well beyond the safe period of 12 weeks endangering the women’s life. This paper theoretically analysis the magnitude of the incidence of female foeticide and infanticide in India.
Traditionally, the major causes of discrimination against the female child have been the son preference rooted in a patriarchal society and the prevalence of dowry. Their lack of education, low financial productivity, and negligible presence in high-profile professions and positions have only added to the devaluation of females. There has been significant improvement in most of these factors except dowry. The escalating pace of globalization in developing countries has coincided with the increase in female feticide and suggests a link that merits critical examination.
In addition to the small family norm, the growing cost of raising a child has contributed to the increased intolerance of female children. Starting from birth, the costs of child rearing are affected by those associated with health care and education, marriage and dowry, and consumerism. When a society with a sociocultural preference for sons finds itself facing conditions that require limiting the family size for various reasons in the absence of preparatory and regulatory mechanisms and policies, then an increase in female infanticide and feticide may be predicted. The female child is increasingly seen as a high input and no output investment, reducing the child to little more than a commodity in the eyes of society.
Female feticide and infanticide are widespread and systematic. Although mothers aborting female fetuses appear to be the perpetrator of the attack, they are actually the victims. Families may seem to choose female feticide and infanticide voluntarily, but it is the onslaught of government policies, sociocultural compulsions, and the effects of globalization directed against the population that often leaves them with no choice and amounts to a systematic attack against the female gender. Government policies that promote female feticide include the small family norm, unregulated genetic technology, an uncontrolled market economy, and unofficial acceptance of female feticide as a means of population control. Knowledge of the fast decreasing numbers of the female population due to feticide and infanticide and corresponding concerns, including threats to the female gender’s survival as a result of these practices, continues to grow.