Authored by Akshita Kaushik (Intern), a 5th-year Law student at Delhi Metropolitan Education, affiliated to Guru Gobind Singh Indraprastha University, New Delhi
Abstract
This paper explores the concept of bodily autonomy in the contexts of adoption and surrogacy, emphasizing its significance as a fundamental human right. Drawing upon international principles, case laws, and domestic legislations, it examines how bodily autonomy intersects with various aspects of adoption and surrogacy processes. The paper delves into the historical evolution of adoption and surrogacy, highlighting key legal and ethical considerations. It also discusses recent developments, such as amendments in surrogacy regulations and their implications for bodily autonomy. Throughout, the paper underscores the importance of upholding bodily autonomy to ensure respect for human rights, dignity, and ethical practices in adoption and surrogacy.
The idea of adoption, surrogacy and the interplay of bodily autonomy with these two notions is crucial to understand, as we need to know how the laws pertaining to surrogacy and adoption impact a person’s life, specifically that of a woman. It is crucial to do so in order to understand the present-day legal framework in these two domains and to examine if any amendment(s) is/are needed to make it more safe and viable for women to avail of either of these options, keeping at the core their fundamental right to bodily autonomy.
Introduction
“The denial of bodily autonomy is a violation of fundamental human rights”.
- Dr. Natalia Kanem
The issue of violation of the rights of bodily autonomy is raised by various international as well as by national organisations time and again. These are serious infringements on bodily autonomy, a fundamental human right that should be universally upheld. These findings are highlighted in "My Body is My Own: Claiming the Right to Autonomy and Self-determination," the 2021 State of World Population report by UNFPA, the United Nations sexual and reproductive health agency, marking the inaugural UN report specifically addressing bodily autonomy.
Dr. Natalia Kanem, Executive Director of UNFPA, underscored the significance of "Bodily autonomy as an inherent human right" in her keynote speech at a side event during the sixty-sixth session of the Commission on the Status of Women.
Right to Bodily Autonomy-Intl
In the International scenario, Article 3, Article 5 and Article 12 of the Universal Declaration of Human Rights(UDHR) imply rights. These articles focus on the following aspects:
ARTICLE (UDHR) | Areas Focused |
|---|---|
Article 3 | Right to life, liberty and security of a person |
Article 5 | This article prohibits the infliction of torture, cruel, inhuman or degrading treatment or punishment. |
Article 12 | States that one’s privacy, family home or correspondence cannot be interfered with and neither his honour/reputation can be attacked. |
In McFall v. Shimp, Judge John P., the plaintiff suffered from a rare bone marrow disease, “aplastic anaemia”, which caused his bone marrow to make inadequate blood components. Due to this, McFall had a very low chance of surviving, so he began to look for potential bone marrow donors. One of his cousins, David Shimp, had bone marrow compatibility with McFall, but he refused to go for the compatibility test.McFall asked for a preliminary injunction to order Shimp to submit the transplant, but the court refused his request. Further, Judge John P. Flaherty Jr. denied the plea for preliminary injunction and stated that the defendant’s refusal was “morally indefensible”. Judge Flaherty said that the court could NOT force the defendant for medical treatment.
Flaherty's ruling transcends its immediate context, broadening its application to encompass wider moral responsibilities toward both individuals and other living entities. The case underscores the court's duty to safeguard individuals from infringement and harm by others.
Right to Bodily Autonomy - Under the Indian Constitution
The right to bodily autonomy and privacy are something which are indispensable and inseparable from each other. Both these stem from Article 21 of the Constitution, which deals with fundamental right to protection of right and personal liberty as well as with Article 14 (Right to Equality), Article 15 (which prohibits discrimination on the basis of religion, race, caste, sex and place of birth and Article 19 as well (which guarantees different kinds of freedoms), which displays that both these rights are interconnected and indispensable in nature as they are also implied from our fundamental rights which are inalienable in nature.
Bodily autonomy, as an integral aspect of privacy, encompasses the right of individuals to make decisions regarding their own bodies free from interference or coercion. The Court's recognition of privacy as rooted in the right to life and liberty inherently includes the right to bodily autonomy. Both these rights of bodily autonomy and the right to privacy are integral aspects of fundamental and human rights as well. Justice Chandrachud aptly articulated this when he emphasized that the state's role is to safeguard individuals' autonomy over their bodies and personal choices.
The Notions of Adoption and Surrogacy
The History of Adoption
Adoption is a legal process where individuals or couples become the legal parents of a child who is not biologically related to them. In this process, the rights of the biological parents are terminated through court proceedings, and the adoptive parents are granted custody and guardianship. This establishes a permanent familial relationship with all associated rights and responsibilities. Adoption aims to provide a stable and nurturing environment for the child while ensuring the fitness of the adoptive parents.
Internationally, the practice of adoption expanded significantly over the years, with an estimated 15,000 foreign children being adopted between 1953 and 1962. To address concerns about ethical practices, the Hague Convention on Protection of Children and Co-operation in Respect to Intercountry Adoption was established in 1993, setting standards for intercountry adoption processes. However, some countries, like Guatemala in 2008, closed their doors to international adoption due to these regulations.
In 2000, the Child Citizenship Act granted automatic U.S. citizenship to foreign-born adoptees upon entry into the United States, eliminating the need for naturalization. This act also led to the inclusion of "adopted son/daughter" as a kinship category in the 2000 U.S. Census.
In the United states, adoption also saw developments. In 1979, the first openly gay couple in California adopted a child, while the Multiethnic Placement Act of 1994 addressed racial disparities in adoption by prohibiting decisions based solely on race. By 1996, this act removed race from consideration altogether.
Conversations around adoption evolved, particularly with the emergence of groups like Bastard Nation in 1996, advocating for the unsealing of adoption records. Their efforts led to changes such as Oregon's ballot measure in 1998, granting adoptees access to their birth certificates.
Domestic Law Provisions
As the landscape of adoption evolves globally, attention turns to the domestic legal framework within India. With a foundation laid by international conventions like the Hague Convention on Protection of Children and growing domestic legislation such as The Juvenile Justice (Care and Protection of Children) Act, 2015, India's approach to adoption reflects a commitment to ensuring the welfare of children and the rights of adoptive families within its borders.
The definition of adoption is given under section 2(2) of The Juvenile Justice (Care and Protection of Children) Act, 2015. The definition states –
(2) “adoption” means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child;
The rationale behind the inclusion of the adoption definition in The Juvenile Justice (Care and Protection of Children) Act, 2015, is that it provides legal clarity and certainty regarding the adoption process. It outlines the fundamental principles, rights, and responsibilities associated with adoption, ensuring alignment with broader legal standards and principles governing child welfare and protection.
The judgment of Shabnam Hashmi vs Union of India provided adoption as a Fundamental Right. It was permitted that any person, irrespective of religion, could adopt a child under the Juvenile Justice (Care and Protection of Children) Act, 2000. In this case, the petitioner, a renowned Indian social activist and human rights advocate, argued that the Juvenile Justice Act of 2000, being secular, permits individuals of any religious background to adopt children. Emphasizing the right to adoption as a fundamental right, it was urged that the court should instruct states and union territories governed by the Act to enforce Section 41 and adhere closely to the guidelines established by the Central Adoption Resource Authority (CARA). This case underscored the importance of ensuring uniform enforcement of adoption laws and guidelines across the country, irrespective of religious beliefs, to safeguard the welfare of children and uphold their right to a loving and nurturing family environment.
The notion of adoption was regarded as a fundamental right by the court in the Shabnam Hashmi case thereby Adoption is a profound life decision that implicates various legal, ethical, and human rights considerations, including the fundamental principle of bodily autonomy. Bodily autonomy in adoption encompasses the rights of birth parents, adoptive parents, and adopted children to make decisions regarding their own bodies and reproductive choices throughout the adoption process.
Key Laws Governing Adoption in India
Introduction to Surrogacy
Surrogacy is a contractual reproductive arrangement wherein a consenting woman agrees to undertake the gestational process and childbirth on behalf of another individual or couple, who are designated to become the child's legal parent(s) upon birth. This arrangement entails the drafting and execution of legally binding agreements delineating the rights and obligations of all involved parties. It encompasses a series of meticulously orchestrated medical procedures overseen by licensed healthcare professionals, alongside adherence to relevant legal frameworks governing parentage and reproductive rights. Surrogacy may be pursued as a recourse in instances of infertility, medical impediments to pregnancy, or by personal volition.
History of Surrogacy
When it comes to surrogacy dates back to biblical agreements when traditional surrogacy agreements made between Abraham, Sarah, and her servant /surrogate, Hagar, in The Book of Genesis.
In 1976: The First Legal Surrogacy Agreement Drafted by Noel Keane
Lawyer Noel Keane negotiates and drafts the first legal surrogacy agreement, marking a significant step in the formalization of surrogacy arrangements.
The agreement is designed for traditional surrogacy, where the surrogate mother is not compensated monetarily for her services.
Keane remains a strong proponent of surrogacy throughout his career, facilitating approximately 600 surrogacy births.
1978: Birth of Louise Brown - First IVF Baby
Louise Brown was born on July 25, 1978, marking the first successful birth resulting from In Vitro Fertilization (IVF).
The technique is pioneered by consultant gynaecologist Patrick Steptoe and Cambridge research physiologist Robert Edwards, revolutionizing fertility treatment.
1980: Elizabeth Kane - First Compensated Surrogate in the U.S.
Elizabeth Kane became the first legally compensated surrogate in the United States. Both parties agree to a traditional surrogacy arrangement, with Kane receiving $11,500 in compensation. This milestone highlights the evolving legal and financial aspects of surrogacy agreements.
1985: First Successful Gestational Surrogacy
The first successful gestational surrogacy takes place, where a gestational surrogate carries a child genetically unrelated to her on behalf of the intended parents. This breakthrough offers new possibilities for intended parents and surrogates, particularly in cases where biological connections are not possible due to medical reasons.
1986: "Baby M" Case - Legal Battles Over Custody
The famous "Baby M" case involves a traditional surrogacy arrangement where the surrogate decides she cannot give up the child after birth. A lengthy custody battle ensues between the surrogate and the intended parents, leading to legal intervention. The court eventually grants custody to the biological father, enhancing support for gestational surrogacy arrangements.
1990: Johnson v. Calvert - Legal Support for Gestational Surrogacy
In the landmark case of Johnson v. Calvert, a gestational carrier attempts to keep the child she carried for intended parents. The court ruled in favour of the intended parents, establishing gestational surrogacy agreements as legally binding and ensuring parental rights for intended parents. This legal precedent provides clarity and support for gestational surrogacy arrangements.
Types of Surrogacy
Traditional Surrogacy
In this type of surrogacy, the traditional mother’s eggs are fertilised with the intended father’s sperm. Thus, she is the genetic mother of the child to whom she gives birth. This form of surrogacy has the longest history of practice. Prior to advancements in modern technology enabling the creation of embryos outside the womb, it stood as the sole method for conceiving through a surrogate mother.
Gestational Surrogacy
Gestational surrogacy is the preferred and predominant method in contemporary surrogacy services. This approach primarily involves using In-Vitro Fertilization (IVF) to fertilize eggs from the intended mother with sperm from the intended father or with donor sperm and eggs if needed. Following fertilization, the resulting embryos are transferred to the surrogate's uterus. As a result, the surrogate has no biological connection to the baby and solely serves as the carrier.
Altruistic Surrogacy
In altruistic surrogacy, a woman agrees to become a surrogate without receiving compensation. Unlike most surrogacy agreements where the surrogate is compensated for her services along with covering pregnancy-related expenses, altruistic surrogates usually assist someone they know personally, such as a close friend or family member. They may only receive reimbursement for medical costs.
Domestic Laws on Surrogacy
The key enactment in India that focuses on the aspect of surrogacy is “The Surrogacy (Regulation) act 2021”. Section 2 (zd) of the act defines surrogacy in the following words-
“surrogacy” means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth;
Types of Surrogacy Permitted in India
In India, the following kinds of surrogacy are permissible:
Traditional Surrogacy
Traditional surrogacy involves a process where a woman, referred to as the surrogate, is artificially inseminated with sperm provided by the intended father. Consequently, the surrogate becomes the biological mother of the child she carries and delivers. Due to its emotional and legal complexities, traditional surrogacy is increasingly uncommon today and is even prohibited in some places.
Gestational Surrogacy
Gestational surrogacy, a contemporary and widely preferred method, is predominantly utilized today. In this procedure, In-Vitro Fertilization (IVF) is employed by medical professionals to fertilize the egg of the intended mother with sperm from the intended father, occasionally utilizing donors' eggs and sperm. Subsequently, the fertilized egg, now an embryo, is transferred to the surrogate's uterus. Notably, the surrogate carries the baby but lacks biological relation to it.
Key Case Laws on The Aspect of Surrogacy In India
Baby Manjhi Yamada vs Union of India
In this instance, a Japanese couple, Dr. Ikufumi Yamada and his wife, travelled to India for surrogacy purposes. They engaged an Indian surrogate mother from Gujarat, a region known for pioneering surrogacy practices. Following marital conflicts, the couple divorced, with the father desiring custody of their child. However, Indian law prohibits single fathers from adopting girls. Consequently, Justices Arijit Pasayat and Mukundakan Sharma of the Supreme Court awarded custodial rights to the child's grandmother. This case underscores the pressing need for regulated surrogacy laws in the country.
Suchita Srivastava vs Chandigarh Administration
The court ruled that Article 21 of the constitution safeguards personal liberty, encompassing a woman's right to make reproductive choices. This includes the right to carry a pregnancy to term and give birth, constituting essential aspects of a woman's right to privacy, dignity, and bodily autonomy.
Justice K. S. Puttaswamy vs Union of India
The court determined that requiring individuals to obtain and present a certificate of infertility constitutes a breach of privacy rights. Additionally, mandating such certificates from the district medical board is deemed morally and ethically objectionable by society. Upholding fundamental rights is imperative in this regard.
Recent Developments: Key Amendment in the Surrogacy (Regulation) Rules 2022
On 21st February 2024, the Union Government made significant amendments to the surrogacy rules of 2022, allowing married couples to utilize "donor eggs" or "donor sperm" for surrogacy. This amendment reversed a prior change implemented in March 2023, which had prohibited the use of such donor gametes. Specifically, Form 2 (Consent of Surrogate Mother and Agreement for Surrogacy) of the Surrogate Rules, along with Rule 7, was modified in March 2023 to specify that donor eggs could not be used for gestational surrogacy by intending couples. However, under the latest amendment, if the District Medical Board certifies that either the husband or wife of the intending couple suffers from a medical condition necessitating the use of donor gametes, surrogacy using donor gametes is permitted, subject to this condition
The Interplay Between Ideas of Bodily Autonomy, Adoption And Surrogacy
Bodily autonomy, a fundamental human right, extends to all aspects of life, including adoption and surrogacy. The concept emphasizes an individual's right to make decisions about their own body, free from coercion or external interference. In the context of adoption, bodily autonomy encompasses the rights of birth parents, adoptive parents, and the adopted child. Upholding bodily autonomy in adoption is essential to ensure respect for human rights, dignity, and ethical practices.
The relationship between bodily autonomy and surrogacy is intricate, encompassing both empowerment and potential exploitation. While surrogacy can be viewed as an exercise of bodily autonomy, enabling women to make choices about their reproductive capacities and assist others in achieving parenthood, concerns arise regarding the commodification of surrogates' bodies in commercial arrangements. Balancing the rights and autonomy of surrogates, intended parents, and the child is crucial, necessitating careful consideration of ethical, legal, and regulatory frameworks to safeguard against exploitation and ensure the well-being of all parties involved.
International Principles and Articles
Universal Declaration of Human Rights (UDHR):
Article 3 of the UDHR states that "Everyone has the right to life, liberty, and security of person." Bodily autonomy is inherent in the right to security of a person, emphasizing an individual's control over their own body.
United Nations Convention on the Rights of the Child (UNCRC):
Article 7 of the UNCRC recognizes the child's right to know and be cared for by their parents, emphasizing the importance of preserving family ties unless separation is necessary for the child's best interests. This principle underscores the significance of respecting birth parents' autonomy in adoption proceedings.
Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption:
The Hague Convention stresses the importance of ensuring that intercountry adoptions are carried out in the best interests of the child, with respect for their fundamental rights, including the right to maintain personal relations and direct contact with their biological family.
Landmark International Case Laws
Baby M Case
The case involves a surrogacy contract entered into by William Stern and Mary Beth Whitehead in 1985, facilitated by the Infertility Center of New York (ICNY). The contract stipulated that Whitehead would carry a child for Stern and his wife, Elizabeth, who was infertile. Following artificial insemination with Stern's sperm, Whitehead would relinquish maternal rights to the child, who would then be adopted by Elizabeth Stern. Despite initial agreement, Whitehead struggled with giving up the child after birth and, following a brief handover, experienced profound distress. When Stern sought enforcement of the contract, a series of events ensued, including the child being removed from Whitehead's custody by force and ultimately returned to the Sterns. The trial court upheld the validity of the surrogacy contract, terminated Whitehead's parental rights, and granted sole custody to Stern, which was subsequently affirmed by the Supreme Court, though with differences in the analysis of the surrogacy contract.
Conclusion
This paper emphasises the critical role of bodily autonomy as a fundamental human right within adoption and surrogacy contexts. By analysing international principles, case laws, and domestic legislation, it highlights the necessity of upholding bodily autonomy to safeguard human rights, dignity, and ethical practices in these areas. The interplay between bodily autonomy, adoption, and surrogacy underscores the intricate balance required to protect the rights of all involved parties. Recent amendments in surrogacy regulations exemplify ongoing efforts to reconcile legal frameworks with ethical considerations, emphasizing the importance of prioritizing bodily autonomy to ensure fairness, transparency, and accountability. Ultimately, this approach aims to promote the well-being of individuals and families by respecting their autonomy over reproductive choices and familial relationships.