(Mis)regulation – the case of commercial surrogacy

Tarang Mahajan

DOI: 10.20529/IJME.2015.008


Abstract

In the most recent attempt to regulate commercial surrogacy, the Ministry of Home Affairs (MHA) has issued a notice altering the category of visa for foreign nationals entering into commercial surrogacy arrangements from “tourist” to “medical”. Upon close scrutiny, it becomes clear that this measure is a far too hasty and unprincipled step. Given the varying laws across different countries, commercial surrogacy has been an area marked by a fair amount of legal ambiguity and conflict, for example, with respect to the citizenship status of the child and legally accepted parentage of commissioning parents. The MHA’s step towards addressing some of the dilemmas is, however, grossly inadequate and discriminatory. In spite of its seeming advantages, of some administrative and legal oversight of the industry, the notice will impact the existing practices in questionable ways since its provisions remain to be vetted through the lens of medical ethics and social justice. The measures, which are supposed to ensure legality, disambiguation and some degree of security for the commercial surrogate, end up giving a clean chit to the industry for the time being. If the step taken by the MHA was meant to be urgent, one wonders at the lack of motivation to strengthen public debate and produce a piece of legislation that can address the various concerns and dilemmas generated by the assisted reproductive technologies (ARTs). This is especially with reference to legislation that ensures the health and democratic rights of those who are at a disadvantage due to the power imbalance in commercial surrogacy arrangements.

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