Law and Assisted reproductive technology – Development of science and technology has gone beyond previously imagined limits with revolutionary developments in reproductive technology, such as IVF, artificial insemination and surrogate motherhood require serious considerations and have posed some serious challenges to marital relations as well as seriously impacted ethical and moral standards of society. Traditional notions of religion and morality are under challenge and the law is having trouble in keeping pace with new issues raised by these advances.
Law And Morality
Morality can be described as set of values, common to the society, which are normative, specifying the correct source of action in a situation, and limits of what society considers acceptable, similarly, law is a manifestation of the person competent to make law, whether legislature or a king. It has always been a subject of debate that whether can be a law which does not meet the test of morality.
The existence of unjust laws such as sati, slavery proves that law and morality are not identical and do not coincide with each other. On the contrary, laws that serve to defend basic human values such as laws against rape, murder prove that the two can coincide.
The law is changed at the will of legislature. On the other hand moral values also change with change in time to reflect change in attitudes.
Adultery was crime punishable under section 497 of the IPC (Indian Penal Code) till recently as well as is also ground for divorce in India, but in England it can only be used as a ground for divorce and not for criminal offence. Therefore law and morality be sometime being seen as particularly different as well as sometimes to be coinciding.
Therefore, morality is set of rules that we are bound to obey as the set rules tell us what is wrong and what is right. There had been two schools of thoughts, namely the natural school of law by Thomas Aquinas and Lon Fuller and the positive school by Jeremy Bentham and John Stuart Mill. According to the former, law must be in consonance with the morality and one must disregard a law which is not in conformity with the natural code and the moral code comes from god and thus is natural but according to the latter the law must be applied as it is it even if it does not meet with the test of morality.
Law should be backed by legal sanction whereas morality is backed by compulsion, in fact the situation today is that both law and morality are facing challenges put forward by technology, fast urban life, constitutionalism and democracy. Thus, the law has characteristic of binding whereas morality has the characteristic of being bound. Law has been influenced by religion and traditional society but cannot supplant the law, similarly law never had the dominating character but religion and morality had played a dominating role. Therefore, both law and morality are sides of the same coin as morality seeks to influence our behavior by our desires but law is the backup option and targets our beliefs.
There are certain crimes which do not harm the innocents but only those who partake of their own free will. Criminal acts such as homosexuality, abortion, and drug abuse etc[1], these issues are the areas of our on consciousness and hence is a area of conflict between law and morality.
Law cant be an instrument for moral standards rather law has to be independent from all moral dogmas except in areas where law is dominated by morality, example, business laws, tax laws etc. morality has nothing to do with these laws but plays a vital role in Prevention of Immoral Traffic Act’ 1956 etc. therefore, there cannot a hard and fast rule regarding their universal application.
In England, the Wolfenden Report[2] was produced after a long debate between relationship of law and morality recommending the legalisation of prostitution and homosexuality on the basis that the law should not intervene with the private lives of the individual or seek to enforce any pattern of behavior that is necessary to protect others by also providing as much freedom and privacy as is possible without compromising other’s morality.
In UK, in Gillick v. West Northfolk and Wisbech Area Health Authority[3], the court addressed the validity of the circular issued by the National Family Planning Clinics of UK, containing guidelines to give advice regarding contraception to girls even under the age of 16. It was argued by Ms. Gillick that health authorities in law had no competence to give advice to a girl below 16 years of age as it would adversely affect the rights of her children but also her capacity as the guardian and the custodian.
However, her claim was rejected by the court on the ground that a child becomes increasingly independent when it becomes older and that parental authority dwindles correspondingly, instead it recognized parental right as long as they were needed for protection of child and such rights yielded to the rights of the child to make its own decision when it reached sufficient understanding and intelligence. Moreover the court also disregarded that such provision of giving advice on the use of contraception below the age of 16 would encourage participation in sexual activities which would offend the basic principles of morality and religion.
Similarly, in S. Khushboo v. Kannimmal[4] SC quashed the criminal proceeding against the appellant for preaching in favor of living relationship as living relationship between 2 adult of different sex by consent does not constitute any offence under the penal law. The court rejected numerous arguments on the morality of such relationships as being no concern to the legal issue before it.
Surrogacy
The word surrogate has been defined by the Latin term ‘ subrogate’ which means appointed to act in place of another. There are 2 types of surrogacy:
1. Traditional surrogacy- where the surrogate becomes pregnant with her own biological child but the child has been conceived with the intention of relinquishing it to be raised by the others.
2. Gestational Surrogacy- where the surrogate becomes pregnant via an embryo, whom she is not the biological mother of.
Surrogacy can be further classified into altruistic and commercial surrogacy, in the former, the surrogate mother does not intend to receive anything except medical and related expenses but in the latter, the surrogate mother is paid over and above the necessary medical expenses.
Surrogacy causes serious problems regarding violation of child rights, non implementation of laws providing for development of children and non compliance of policy decisions made on mitigating hardships and ensuring welfare of children which can be observed by authorities under the provisions of Commission of Child Right Act’ 2005[5].
In fact in case of surrogacy there has been many questions regarding enforcing a contract with the surrogate mother-
- Whether such contracts are valid under public policy particularly under section 23 of Indian Contract Act’ 1872[6]?
- Whether surrogacy contracts are as same as other contracts? And if they are, can the goods be rejected or specific performance can be claimed?
It also raises certain issues of morality-
- Whether insemination amounts to adultery?
- Are surrogacy agreements exploiting the poor women selected as surrogates?
Also it raises the question about succession as children born of a surrogate mother that is children of void or voidable marriage cannot inherit any coparcenary properties but only self acquired properties of the parents[7].
In Oxford v. Oxford[8], it was held by a Canadian court that as wife was a surrogate mother, it was clear cut case of adultery by wife and on this ground the divorce was granted.
But in Roe v. Wade[9], court had ruled that every woman has a right to take decision as to how her body is to be used and therefore a woman has a right to enter into surrogacy agreement. This issue is of great importance as there is a large percentage of LGBT population which do not wants to lose their freedom and want to have babies to carry on their blood line.
Further, in the case of Suchitra Srivastava v. Chandigarh Admn.[10], women’s right to make reproductive choices is also dimension of personal liberty as understood under Art. 21 of Indian constitution.
Heterologous artificial insemination with or without the consent of the husband may be contrary to public policy and good morals. The child cannot be termed as out of wedlock and hence such child will be illegitimate.
In the case of Baby Melissa[11], a dispute arose between the surrogate mother and the biological parents as the surrogate mother refused to give up the child. The court awarded the custody of the child to the biological parents considering the best interests of the child and the validation of the surrogacy agreement. It held that the surrogacy agreement was void ab initio and that it was against the public policy.
However, in Anna Johnson v. Mark Calvert[12], the genetic parents brought out a suit regarding a declaration that they were legal parents of the child born out of the surrogate mother. The lower courts ruled in the favor of the husband and the wife but the SC reversed the judgement as it held that women was not the mother of the child as it was not her egg which stood fertilized.
Conclusion
It can be concluded that the law is striving hard for legitimacy of these children but the concerned parties have to observe moral norms so as to make them acceptable by the society at large. Law alone cannot be responsible for controlling will of the people, it can be brought through movements involving social scientists, statesman and observance of the morals by people themselves. To conclude, it may be stated that morality is the surviving force that supports law and eventually disciplines life.
Edited by Sakshi Raje
Reference:
[1] Crimes without victims (1965), Edwin Schur.
[2] (1957).
[3] (1985) 3 All ER 402.
[4] AIR 2010 SC 3196.
[5] Baby Manji Yamada v. UOI & Anr., AIR 2009 SC 84.
[6] What consideration and objects are lawful, and what not.—The consideration or object of an agreement is lawful, unless— —The consideration or object of an agreement is lawful, unless—” it is forbidden by law; 14 or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
[7] Section 26 of Special Marriage Act’ 1954 and Section 16 of the Hindu Marriage Act’ 1955.
[8] 58 OLR 251 (1921).
[9] 410 US 113 (1973).
[10] (2009) 9 SCC 1.
[11] 537 A.2d 1227 (NJ 1987).
[12] (1993) 5 Cal 4th 84-85 P. 2d 776.
