Pub. Info. – Social Stigma Surrounding Surrogacy and Prostitution in Indian Society, by Sonali Kusum, IMS Unison University , Pragyaan, Volume 5, Issue 1, June 2015, ISSN No. 2278-8093. http://iuu.ac/download-pdf/PragyaanLawJan15.pdf
ABSTRACT : The debate on prostitution and surrogacy needs to be revisited in the light of the proposal by the National Women’s commission seeking to legalize prostitution in India. Another twin development is the recent revision of the draft law on surrogacy namely the Assisted Reproductive technologies (ART) Bill in the year 2013 which is reinforcing the legalization of commercial surrogacy in India. It may be pertinent to note that Surrogacy and prostitution share inherent similarly as both involve payment for the use of female’s body and for the same reason both are held as unethical and stigmatized in society. These developments signify that both commercial surrogacy and prostitution seeking to be legalized in India. In the light of this , an important issue to be considered is the identification of similarities between commercial surrogacy and prostitution and assessing the nature changes that may be followed in the of socio legal attitude towards greater acceptability of commercial surrogate motherhood or alternatively if such legalization would ameliorate the plight of these women [in their respective societies] in India, a significant issue running underlining the entire theme of this discussion is a crucial speculation surrounding the change that with the legalization of both the social stigma emanating from the commercial use of the female body involving her private organs (for third party) would it also undergo a dynamic change and thereby be met with less social resistance. These contesting surrounding legality and illegality related to Surrogacy and prostitution are briefly discussed.
INTRODUCTION : Prostitution is defined as “the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind,”[1] or in simple words prostitution is “the exchange of sexual services for money”[2]. On the side , Surrogacy or surrogate motherhood is defined as “ an arrangement in which a woman agrees to a gestate or undergo pregnancy, achieved through assisted reproductive technology and to hand over the child to the person or persons for whom she is acting as a surrogate usually in return for monetary payment[3]” or in simple words “surrogacy is use of gestational services of woman in exchange for money”[4]. Prostitution as well as surrogacy both are permitted and regulated in India under respective laws, regulations. The Suppression of Immoral Traffic in Women and Girls Act regulates prostitution by declaring certain acts as living on the earnings of the prostitution, keeping a brothel or allowing premises to be used as a brothel and such other acts as illegal and punishable offence. Where as in case of surrogacy , there is no binding statutory law on surrogacy in India. At present surrogacy in commercial form is permitted in India by the Supreme court’s pronouncement in the case of Baby Manji vs Union of India and regulated by the ICMR Medical guidelines and the Drat ART Bill awaiting enforcement. Prostitution in India is regulated by the Suppression of Immoral Traffic in Women and Girls Act , this statute does not outlaw prostitution but makes certain acts related or ancillary to prostitution as keeping a brothel or allowing premises to be used as a brothel , living on the earnings of the prostitution is held as illegal and punishable offence. While prostitution is defined as “the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind,”[5]. In simple words prostitution is defined as “the exchange of sexual services for money”[6]. Surrogacy is sought to be regulated by the draft surrogacy legislation which is at present in the form of Bill named as ART Bill however surrogacy in commercial form is allowed and held legal by the supreme court of India.
Commercial surrogacy and prostitution similarly involves temporal use of body of or hire of private body organ as womb by third person in return for monetary payment. One of the common attribute in Commercial surrogacy and prostitution is the element of commerce, trade, financial transaction in the human body, bodily organs, biological process of reproduction , procreation[7]. Due to this reason “surrogacy is held as form of prostitution or slavery whereby a woman exchanges the use of her body for money.”[8]
This common feature is described as is described as “Surrogacy contracts are a form of prostitution or slavery whereby a woman exchanges the use of her body for money.”[9] Another common attribute is the fact that both prostitution, commercial surrogacy brings in the element of commerce, trade, financial transaction in the human body, bodily organs, biological process of procreation[10]. This has resulted in a thriving industry based on the renting, hiring of gestational, sexual capacity of women to be let on hire leading to her bodily exploitation. Surrogacy in particular generates greater scope for exploitation for two reasons firstly due to rampant practice of surrogacy as a part of reproductive tourism policy seeking to offer the gestational services of Indian women to be availed for monetary returns by outsourced or let worldwide by nationals, foreigners and secondly due to absence of any binding law imposing check and control on the same, there is likelihood of misuse of the technology for unfair commercial gains and illegalities. Under such circumstances women are vulnerable to being trafficking or buying or selling and abduction of women for the purpose of being surrogate mothers, prostitutes for vested interests[11]. This raises fears of market in human body, organs and many other socio legal evils in our society. Thus there is a felt necessity to bring stringent legal actions and necessary curbs on the same.
At this juncture, It may be reiterated that in the wake of recent proposal by NCW seeking to legalize prostitution in India[12] by amendments in Immoral Traffic (Prevention) Act, 1956 (ITPA)[13] in the after math of public interest litigation before Supreme court of India discussing right of sex workers to live with dignity in accordance with article 21 of the constitution of India. Coupled with legalization of surrogacy under the revised ART Bill 2013. Thus, both surrogacy and prostitution are subject to changes which may have significant implications on the legal recognition and social acceptability of the same including better status of these women in society. it may be rightfully said that with the proposed changes in the legalization of both these illegalities and misuses associated with the same may be put to cease.
India is one of the first country in the world to legalize commercial surrogacy since the year 2002 under reproductive tourism policy aimed at earning foreign exchange. Subsequently, the supreme court of India in the epoch making case of Baby Manji Vs Union of India[14] formally legalized commercial surrogacy in the year 2008. In the same case , the apex court defined commercial surrogacy as “commercial surrogacy as a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb”[15]. Having defined commercial surrogacy, the apex court acknowledged the name calling and the social stigma surrounding commercial surrogacy further the court reiterated the popular euphemism associated with commercial surrogacy namely “womb renting”, “baby farm” “outsourced pregnancies”[16] as prevalent in society. This judicial pronouncement led to the formulation of the Assisted Reproductive Technologies ( ART ) (Regulation ) Bill 2008[17]. This ART Bill 2008 was subject to necessary change and revised as ART Bill 2010 [18], this Bill under relevant provision provides for commercial surrogacy by permitting monetary compensation to women in return for their gestational services.[19] At present ART Bill 2010 is being modified and relooked as ART Bill 2013 which is awaiting enactment. Therefore surrogacy in India is without any binding regulatory law on the same.
SURROGATE MOTHER & DEROGATORY SOCIAL STATUS , SOCIAL STIGMA IN INDIAN SOCIETY – The surrogate mothers are given a very derogatory status by equating their position with that of a prostitute in a society. The social attitude towards surrogate motherhood are defined by name calling as “baby breeders”, “baby factory”, “incubator”, “carrier or vessel” among others [20]. The surrogate mother has to face a social stigma of offering bodily services for commercial returns similar to a prostitute. There is a misconception in the society that the role of surrogate mother may involve immoral acts like that of a prostitute including sexual intercourse with the male partner of the couple or the intending father in order to conceive and gestate the surrogate child , such misconceived notion exists due to lack of information on the medical process of artificial insemination resulting in “stigmatization and [21] social exclusion[22] of surrogate mothers. The surrogate mothers are alleged to be “maligning motherhood” [23]by making the reproductive labour or gestational labour available on hire for money in market like any other market or commercial service at the cost of suppressing and alienating feelings of motherhood accruing during the course of gestation or pregnancy and by undertaking compulsory handing over the custody of child onto others immediately after birth for monetary sum despite all or any intrinsic emotional attachment[24] thereby defeating the very notion of motherhood by undertaking the pregnancy and child bearing for other as any commercial service. The surrogate mothers are also called as “disposable mothers” for the main reason that surrogate motherhood requires women to undergo pregnancy for the sole purpose of surrender or disposing of the custody of child to others immediately at birth and thereafter severing all ties in return for a fixed sum of money[25]. Surrogate mothers are also viewed as” dirty workers” due to inherent servile behavior implicit in the nature of the act”[26] of gestational labour undertaken for others where in the conduct and functioning of surrogate mother is controlled as per the terms and conditions of surrogacy arrangement at the instance of the couple to suit their interest[27].
On the other side, Surrogate mothers defend their position by denying any such any such comparison with prostitutes or paid sex workers and these women or surrogate mothers contend that “surrogacy is more like a “calling,” “a blessing from God” [28] that enables a woman to perform a charitable or noble act of providing child to infertile and help them build their family[29]. Surrogate mothers fight back the stigma of surrogacy by construing a sense of self-worth by recounting the instance from Mahabharata where lord Sri Krishna and other deities was born through similar way. Thus surrogates seek to perform a glorious act as enumerated in religious texts. The surrogate states that “it’s in our religion. It’s something like what Yashoda Ma did for God Krishna”[30]. Thus it is evident the surrogate mother resent and fight back such comparisons and consequent social stigma cast upon them. In the light of this discourses related comparisons and contradictions between surrogacy, prostitution and the consequent social stigma there is a felt need to identify the similarities and dissimilarities between surrogacy and prostitution.
SIMILARITIES BETWEEN SURROGACY & PROSTITUTION : Leading feminist schools of thought and scholars have sought to establish similarities between surrogacy and prostitution. It is significant to take into consideration these feminist perspectives who calls surrogacy as reproductive prostitution as “it is the womb, not the vagina, that is being bought; this is not sex, it is reproduction that is being bought[31]”. Gena corea , a leading radical American feminist opines that “Surrogacy, like prostitution, is said to be the payment of a fee for the use of the body that “while prostitutes sell the use of the vagina, rectum or mouths, surrogates sell the use of other body parts such as wombs, ovaries, and eggs”[32] or in another words “contracting for the use of one’s uterus is perilously close to contracting for the use of one’s vagina; the parallel with prostitution strikes many as compelling “[33]. Thus it is said that “prostitution is sex without reproduction; surrogacy is reproduction without sex”[34]. As per the radical feminist surrogacy and prostitution have similarities some of which are identified and discussed here briefly.
i.Commoditization or Objectification of female body & Commercial gain form use of body – Surrogacy, prostitution both commodifies women’s body by offering women’s gestational, sexual labour in market for remunerative sum. Radical feminists Margaret Radin establishes that in surrogacy and prostitution both there is commoditization primarily due to market transaction including buying and selling or commercial hiring of women’s private body.[35] Hence it is manifest that surrogacy and prostitution there is commoditization of the female’s body either for reproductive or sexual reasons in return for commercial gain and there is unfair exploitation of the same.[36]
- Bodily exploitation & denial of human rights guarantees as Bodily dignity, integrity –
Both surrogacy, prostitution by making women’s body into a commodity of commercial gain and monetary return devoid women’s body of human dignity, integrity and go against the basic human right to dignity , right to person . As per the established theory of the Idea of Human Dignity laid down by the German philosopher Immanuel Kant , “Human beings have “an intrinsic worth, i.e., dignity,” which makes them valuable’ “above all price therefore humans beings are end in themselves and not merely means to an end”[37]. As per this it is apparent that surrogacy, prostitution both stand inconsistent to the basic tenet of human dignity, right to person as conceptualized under the Kantian Theory. Based on this foundational principle of human dignity , integrity many European nations for instance namely Germany, France, Italy and other nations strictly prohibit surrogacy and makes it an offence violating the human rights. It may be pertinent to mention that as per the German constitution human dignity is inviolable therefore to make a human being the subject of a contract and use of a third party’s body for the purposes of reproduction is impermissible under German constitution[38]. In keeping with this, in the case of Jan Balaz v. Anand Municipality and Ors[39] the German Government authorities denied any legal recognition to such surrogacy commissioned by German nationals in Anand , Gujarat India leading to the birth German twins who were biologically related to the couples. Similarly France under its Civil Code under prohibits surrogacy being contrary to the principle of the inviolability, integrity of the human body which states that only things of a commercial nature can be the object of contract [40] . Therefore on this rationale , prostitution and commercial surrogacy is viewed as breach of the established human rights guarantee.
iii. Absence of choice & Compulsions as economic necessity – Another similarity between surrogacy and prostitution is the absence of choice or consent formation on the part of either the surrogate mother or the prostitute. “Andrea Dworkin American radical feminist states that surrogacy is like prostitution because the surrogate same as prostitue has no choice and in both surrogacy and prostitution “the state has constructed the social, economic, and political condition in which the sale of some sexual or reproductive capacity is necessary to the survival of women” thus “no woman could “want” to be either a surrogate or a prostitute out of her own choice[41].” Hence it is established that surrogacy or prostitution is not an option in which a woman can enter into by her own free will. This analogy is supported by the testimony of a surrogate a poor Indian surrogate mother named “S” who states her reason to be surrogate as far removed from being a choice but rather a “majboori” or compulsion or necessity for survival[42]. Both surrogacy and prostitution are marked by absence of free choice.
iv.Stay Arrangements away from Homes as brothel or surrogate hostel -Both the surrogate and prostitutes are made to stay away from their family, homes in their separate and secluded accommodation arrangement. As surrogates are kept together as a class of breeders, just as prostitutes are kept together in brothels. While the surrogate stays in a make shift “surrogate hostel” where as the prostitutes stay in a “brothel” in both these stay arrangements women are made to share usually a common big room or dormitory with as many as ten to fifteen women sharing the same space with common washrooms[43] and their life style choice , day to day movements are brought under necessary supervision are monitored by third party agency or the so called care takers or middle men. Thus the stay arrangements of both share a certain sense of similarity.
V. Non disclosure & secrecy – Majority of the surrogate mothers do not disclose rather hide the fact of their being surrogate mothers as secret from their neighbors, in laws and even from their parents. Some of the surrogate mothers lie about their long absence from their homes by making false excuse that that they are visiting their maternal home or they are on pilgrimage or such excuses.[44] Thus there is similar confidentiality associated with the sex workers as well who never disclose about their profession.
DIFFERENCES BETWEEN SURROGACY & PROSTITUTION:
After establishing the common grounds between surrogacy and prostitution it is equally significant to identify the differences for better conceptualization on the same. Some of these key differences are mentioned below-
i.Criminal & Punishable Nature – The first and foremost difference between prostitution and surrogacy is the fact that while the former prostitution being the sale of sexual services for a fee is held to be per se unethical , immoral and soliciting and offering same is legally prohibited and held as a punishable offence[45] under the Indian penal law[46] as well as under the Suppression of Immoral Traffic in Women and Girls Act[47]. On the other hand , surrogacy as an act of substitution of gestation and consequent child bearing without any sexual intercourse, is neither held as an illegal act or criminal act nor a punishable offense. It may be noted that surrogacy could be of either two forms namely altruistic or commercial surrogacy. The altruistic surrogacy is held as charitable act of helping the infertile couple and held legal in almost all legal jurisdictions. There are many instance of altruistic surrogacy in the old testament of Bible[48] as well as in Hindu religious epics as Mahabharata[49] which has been received with reverence and social acceptance. Rather it is usually in the case of latter , the commercial surrogacy which is held illegal in certain legal jurisdictions as already mentioned by enumerating instances of some of the European nations. Thus unlike prostitution, surrogacy is not per se not necessarily illegal
ii.Purpose & Intent – Surrogacy can be distinguished from prostitution based on its respective motives, purpose behind the same. The main purpose behind the surrogacy is birth of child, family formation for an infertile couples who otherwise would not be able to have the same otherwise thus surrogacy may be beneficial both to individuals and to society where as the main purpose of prostitution is mere temporal physical pleasure or sexual gratification .[50] Thus in case of the former surrogacy it may be rightfully said that the ends justify the means owing to its very noble and laudable objective and the latter absents the same.
iii. Potential& Incidental Harms – There are many potential harms associated with or incidental to prostitution owing to the involvement of sexual intercourse with a man which is absent in the case of surrogacy. This may be rightfully said that in the case of prostitution there is scope for use of minor girls for trafficking or selling, kidnap of minor girls, forcible abduction and even subjecting these girls at the cost of risking their lives for prostitution or such other such criminal acts. These risks are more imminent in prostitution than in surrogacy.
At the outset , these are some of the established differences between the surrogacy and prostitution which are briefly discussed.
LEGAL ISSUES & NEXUS AMONG SURROGACY, PROSTITUTION & HUMAN TRAFFICKING –
Considering the shared similarity of bodily exploitation implicit in surrogacy, prostitution and in human trafficking , all the three fall under the broad ambit of offence against human, dignity , integrity and violative of right to person under national, international laws and conventions. Some of these issues and legal instruments are elucidated here .
Human right issues – Making a perusal of surrogacy and prostitution in terms of similarity and differences. It is significant to underline/ identify the inter linkages, nexus between Surrogacy, prostitution and human trafficking. There is an observed similarity in the defining or constitutive elements of surrogacy, prostitution and trafficking. All these have common shared elements namely bodily exploitation for commercial gain, coercion, lack of consent, servile behavior, profiteering or financial or commercial motive. The most essential and intrinsic attribute of both these are primarily based on deriving commercial gain out of the female reproductive body. This position is most aptly described by Gena Corea who states that “while the prostitution makes commercial use of vagina but surrogacy makes commercial use of uterus. Hence both invariably expose the female body to market transaction of hire for financial gain. The commercial gains so derived are primarily unfair and unethical. For the same reason surrogacy , prostitution both are inherently intrinsically violative of human right to dignity , integrity of person and causing bodily exploitation of women for financial gain [51], concurrent with the offence of human trafficking which is at the very primate level an offence against dignity. Thus it may be rightfully stated that Commercial surrogacy, prostitution and human trafficking are intertwined, share indispensible nexus. In commercial surrogacy as well as prostitution there are common socio economic determinants or reasons such as poverty, debt, illiteracy which act as a compelling force for woman to become a surrogate mother or prostitute as the present societal order renders them unfit to find a gainful employment with such limitation. The recruiting process in prostitution, surrogacy is notably similar to the recruitment process used by human traffickers. In both there is involvement of third parties as a middle men, brokers, agency, local surrogacy agents or corporate surrogacy consultants to recruit surrogate mothers. It is also found that prostitution, commercial surrogacy both are essentially chief motives for human trafficking. In other words, surrogacy, prostitution represent two major forms of bodily exploitation which may be included under the broad ambit of the definition of human trafficking. While surrogacy represents reproductive trafficking and prostitution represents sexual trafficking. In this regard it is pertinent to mention a landmark case on the point which distinguishes between the two forms of trafficking namely sexual and non sexual trafficking. These forms or purpose or motive for human trafficking are brought forth in the case of Bachpan Bachao & Ors. vs Union Of India & Others[52] wherein the Delhi high court acknowledges that “there is no concrete definition of human trafficking and the court identified two major categories of trafficking namely sexual and non sexual forms of trafficking The former category includes sex based trafficking including prostitution, pedophilia, pornography and the later non sex based trafficking including servitude, like domestic labour, organ transplant etc.
In addition to these, it is well established under various national laws, international conventions that trafficking is primarily “ an offense to the dignity and integrity of the human being thereby violation of human right”[53]. Accordingly , the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime[54] as well as the Council of Europe Convention on Action against Trafficking in Human Beings[55] which prohibit trafficking as primarily breach of human dignity and right to person. Similar provisions are found in the international human right convention or treaty namely UDHR[56], ICCPR[57], UNCEDAW[58] which establish the right to human dignity, integrity and respect for person is the most fundamental human right safeguard. Thus the right to human dignity besides being a human right guarantee is also an established fundamental and legal right which is a facet of right to life , liberty under article 21 of Indian constitution. Right to human dignity is interpreted as the inalienable fact of right to life in the epoch making case of Bandhua Mukti Morcha v.Union of India [59]and a host of other cases. Thus in surrogacy and prostitution these legal , human right safeguards are denied. This violation of dignity and integrity of person is subject to criticism not only from conventional or treaty law but also from philosophical and ethical perspectives as well.
Philosophical ethical issues – Commercial surrogacy in principle and in practices stands in contravention of Kantian Theory of the idea of human dignity[60]. In keeping with the ethical tenets financial transactions in human body organ as mentioned under the European Convention on Human Rights and Bio medicine, or the Oviedo Convention[61] and under the Indian Human Organ Transplant Act[62] prohibits financial dealings or transaction in human body as being inconsistent with human dignity and integrity.
National Legal instrument – The nexus between commercial surrogacy, prostitution is well established. This may be precisely set as while prostitution, surrogacy could be motives for human trafficking, trafficking could be sex based as well non sex based as it could be either for prostitution or surrogacy. After establishing the nexus between surrogacy between surrogacy, prostitution, trafficking it is pertinent to enumerate the laws seeking to prohibit or regulate the same. Human trafficking is prohibited in all or any form under national , international laws. Laws related to trafficking are mostly confined to and associated with trafficking for the purpose of prostitution, sexual exploitation but laws related to trafficking for the purpose of surrogacy are not similarly established as yet. Firstly the IPC provides for penal offences against trafficking of females , girls for prostitution. Similarly the statutory Act namely Immoral Traffic (Prevention) Act, 1956 (ITPA) [63] prohibits trafficking for immoral purposes including prostitution, sex trade. As commercial surrogacy being an advanced reproductive technology has been given legal permit in India only a few years back and the legislation on the same is still in pendency and therefore there is a legal void to address the issues related to surrogacy , human trafficking. It is well understood that the drafter of IPC at the time of formulation had not envisioned this medical technique of surrogacy any such similar technology hence the law makers did not have this technology in their considerations, let alone its misuse leading to trafficking in women for making them gestational carriers therefore this technology has not been taken into account while conceptualizing law on trafficking. However in the recent past there has been initiation on these lines by under the international legal instruments. Some of these may be reiterated here.
International Legal instrument – There are certain contemporary international legal instruments that identify “forced prostitution” and “forced pregnancy” as emerging forms of human trafficking under their relevant provisions . One of such is the International Criminal Court Statute which includes enslavement, “forced prostitution” and “forced pregnancy” amongst crimes against humanity.[64] The United Nations Office on Drugs and Crime (“UNODC”) “Model Law against Trafficking in Persons”, seeking the implementation of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children specifically mentions “forced pregnancy” and the “use of women as surrogate mothers” as, forms of human trafficking other than prostitution. This convention expressly mentions the case of “forced pregnancy” and the “use of women as surrogate mothers” as forms of trafficking. The draft Council of Europe convention against trafficking urges the states parties to formulate protocol against trafficking in body parts , human tissues and cells either through gestation carrier or as gamete donors.[65] This convention envisions commercial surrogate motherhood as a form of human trafficking. Thus it may be inferred that “exploitation” for the purpose of “trafficking” may include surrogate pregnancy which may be read under the category of forced pregnancy. Thus these are some of the progressive legal developments witch focus on the nexus between commercial surrogacy and human trafficking and include provisions on trafficking of women for the purpose of serving as a gestational carrier or surrogate mother for their vested interests and commercial gain.
CONCLUSION: Though the analogy between commercial surrogacy and prostitution can not be refuted due to the common shared ground of bodily exploitation of women couple with the common motive of commercial gain. Both receive criticism from ethical, legal, human right advocacy groups for being largely unethical, stigmatized among others. The issue of social stigma continues to degrade the status of surrogate mothers but with the possible legalization of prostitution as mooted by the NCW, this attitude of social stigma may undergo a change. As more and more surrogate mothers are voicing about the nature of such pregnancy as well as the process of legalization of ART Bill has brought more emphasis on the medical technique of artificial insemination and nature of such pregnancy.
But at the same time it is a notable fact that commercial surrogacy prostitution are different in effect and practice. As Surrogacy leads to family formation and fulfillment of right to life, right to privacy which brings welfare for the individual and family thereby greater good for the society. Besides another distinguishing fact that surrogacy is not per se criminal and punishable act unlike prostitution. However the legal issue common in both is the inconsistency with the established human rights standards and the possibility of lurking crimes of human trafficking in the garb of same. Thus there is felt need to address the same through legalization and necessary amendment whereby the differentiation is well established as well as the positive aspects of surrogacy are further emphasized. The present proposals of enactments of laws seeks to strike a balance with the personal needs of individual with the welfare of society so that both may be brought under the necessary state control and regulations and may be better received and respected in society.
[1] The Suppression of Immoral Traffic in Women and Girls Act 1956 , No. 104 of 1956 [30th December, 1956] , § 2 (f).
[2] Wikipedia, the free encyclopedia , Prostitution in India, Wikipedia, available at http://en.wikipedia.org/wiki/Prostitution_in_India(last visited Feb. 25, 2015).
[3] Farlex, the Free Dictionary, Surrogate Motherhood, thefreedictionary, available at http://legal-dictionary.thefreedictionary.com/Surrogate+Motherhood(Last visited Feb. 25, 2015).
[4] Dictionary merriam-webster, surrogate mother , merriam-webster, available at
http://www.merriam-webster.com/dictionary/surrogate%20mother (Last visited Feb. 25, 2015)
[5] The Suppression of Immoral Traffic in Women and Girls Act 1956 , No. 104 of 1956 [30th December, 1956] , § 2 (f).
[6] Wikipedia, the free encyclopedia , Prostitution in India, Wikipedia, available at http://en.wikipedia.org/wiki/Prostitution_in_India(last visited Feb. 25, 2015).
[7] Sugato Mukherjee, legal and ethical issues of commercial surrogacy in India , Academia Edu, available at http://www.academia.edu/1955503/LEGAL_AND_ETHICAL_ISSUES_OF_COMMERCIAL_SURROGACY_IN_INDIA_AN_OVERVIEW(Last visited Feb. 25, 2015).
[8] Denise E. Lascarides, A Plea for the Enforceability of Gestational Surrogacy Contracts Hofstra Law Review Volume 25 | Issue 4 Article 4 1997 available at http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1980&context=hlr(Last visited Feb. 25, 2015).
[9] Denise E. Lascarides, A Plea for the Enforceability of Gestational Surrogacy Contracts Hofstra Law Review Volume 25 | Issue 4 Article 4 1997 available at http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1980&context=hlr(Last visited Feb. 25, 2015).
[10] Sugato Mukherjee, legal and ethical issues of commercial surrogacy in India , Academia Edu, available at http://www.academia.edu/1955503/LEGAL_AND_ETHICAL_ISSUES_OF_COMMERCIAL_SURROGACY_IN_INDIA_AN_OVERVIEW(Last visited Feb. 25, 2015).
[11] Bureau of the Dutch National Rapporteur on Trafficking in Human Beings , Human trafficking, For the purpose of the removal of organs and forced commercial surrogacy , The Hague: BNRM, National Rapporteur on Trafficking in Human Beings (2012) available at http://www.bnrm.nl(Last visited Feb. 25, 2015)
[12] IANS | , Proposal to legalize prostitution to be placed before SC panel: NCW Oct 29, 2014 , available at http://timesofindia.indiatimes.com/india/Proposal-to-legalize-prostitution-to-be-placed-before-SC-panel-NCW/articleshow/44973994.cms(Last visited Feb. 25, 2015).
[13] The Immoral Traffic (Prevention) Act, 1956 , [NO.104 of 1956], [30th. December, 1956].
[14] (2008) 13 S.C.C. 518).
[15] Ibid, ¶ 5.
[16] Ibid , ¶ 9.
[17] Indian Council of Medical Research. The Assisted Reproductive Technology (Regulation) Bill– 2008(Draft) Ministry of Health and Family Welfare, Government of India, available at http://icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&%20Rules%20-%202008-1.PDF (Last visited Feb. 25, 2015) [hereinafter Draft Bill 2008].
[18] The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb.25, 2015) [hereinafter ART Bill 2010].
[19] Ibid, ART Bill 2010 § 34 (1) (2).
[20]Christopher White, Surrogacy: The Twenty-First Century’s New Baby-Making thefederalist.OCTOBER 13, 2014 available at http://thefederalist.com/2014/10/13/surrogacy-the-twenty-first-centurys-new-baby-making/(Last visited Feb. 25, 2015).
[21] Sayantani Das Gupta, Shamita Das Dasgupta, Globalization and Transnational Surrogacy in India: Outsourcing Life (Google eBook), Lexington Books, Feb-2014.
[22] Kajsa Ekis Ekman, Being and Being Bought: Prostitution, Surrogacy and the Split Self spinifexpress, available at http://www.spinifexpress.com.au/bookstore/book/id=246/ (Last visited Feb. 25, 2015).
[23] Chaz Kangas, Paul Anka’s “Having My Baby”: Disgustingly Misogynist or Unfairly Maligned?, VILLAGE VOICE, available at http://blogs.villagevoice.com/music/2013/05/ paul_anka_having_my_baby.php (Last visited Feb. 25, 2015).
[24] Kellye Y. Testy ,FOREWORD: COMPENSATED SURROGACY IN THE AGE OF WINDSOR, WASHINGTON LAW REVIEW [Vol. 89:1169 , available at https://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1410/89wlr1069.pdf?sequence=1(Last visited Feb. 25, 2015).
[25] Amrita Pande, “At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India , Feminist Studies 36, no. (Summer 2010). © 2010 by Feminist Studies, available at http://claradoc.gpa.free.fr/doc/420.pdf(Last visited Feb. 25, 2015).
[26] Ibid.
[27] AMRITA PANDE, Not an ‘Angel’, not a ‘Whore’: Surrogates as ‘Dirty’ Workers in India, Indian Journal of Gender Studies 2009 16: 141, available at https://intersektionalitet.files.wordpress.com/2011/03/notanangel2.pdf (Last visited Feb. 25, 2015).
[28] Supra Note at 23.
[29] A m r i t a P a n d e, Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker, S I G N S Summer 2010 ❙ 971.
[30] Ibid.
[31] Dion Farquhar, The Other Machine: Discourse and Reproductive Technologies Psychology Press, 1996.
[32] Katherine B. Lieber , Selling the Womb: Can the Feminist Critique of Surrogacy Be Answered? Indiana University School of Law, Volume 68 | Issue 1 available at, http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1466&context=ilj(Last visited Feb. 25, 2015).
[33] RICHARD T. HULL, ETHICAL ISSUES IN THE NEv REPRODUCTIVE TECHNOLOGIES 153 (1990).
[34] Vandana Apte . Commercial surrogacy presents priceless opportunities Under the Microscope, dailytargum. 09/17/14, available at http://www.dailytargum.com/article/2014/09/commercial-surrogacy-presents-priceless-opportunities(Last visited Feb. 25, 2015).
[35] JEAN M. SERA, SURROGACY AND PROSTITUTION: A COMPARATIVE ANALYSIS, JOURNAL OF GENDER & THE LAW, Spring 1997] [Vol. 5:315, At pg no 327 ].
[36] Accord Anita L. Allen, Surrogacy, Slavery, and the Ownership of Lifk 13 HARV. J. L. & PUB. POL ‘Y 139, 141-46 (1990). See Margaret Jane Radin, Market Inalienabiliy,100 HARV. L. REV. 1849, 1859-60 (1987).
[37] Immanuel Kant (1724–1804) Lecture on Ethics (1779), Kant’s Moral Philosophy, Stanford encyclopedia of ethics , Feb 23, 2004, available at http://plato.stanford.edu/entries/kant-moral/(Last visited Feb. 25, 2015).
[38] Michael Edwards, Colin Rogerson, Dawson Cornwell, family law week , Surrogacy: National Approaches and International Regulation, proceedings at the Workshop on National Approaches to Surrogacy, University of Aberdeen between 30 August 2011 and 1 September 2011 Articles > 2011 archive available at http://www.familylawweek.co.uk/site.aspx?i=ed87773(Last visited Feb. 25, 2015).
[39] AIR 2010 Guj 21.
[40] French civil code , Code Civil [C. CIV.] Article 1128 , See also, John Weltman & Brian Manning, Information Regarding the April 2011 Cour de Cassation Decision, CIRCLE SURROGACY (Apr. 14, 2011), available at http://www.circlesurrogacy.com/en/component/k2/item/174-memo-mennesson-decision. (Last visited Feb. 25, 2015).
[41] ANDREA DWORKIN , Right-wing Women , A Perigee Book , G. P. Putnam’s Sons, New York, 1982.
[42] Amrita Pande, Wombs in Labor, Transnational Commercial Surrogacy in India, Columbia University Press , SEPTEMBER 2014.
[43] Gena Corea , The Mother Machine: Reproductive Technologies From Artificial Insemination to Artificial Wombs. Journal of Nurse-Midwifery, Volume 32, Issue 1, page 55,January-February 1987 .
[44] NITA BHALLA AND MANSI THAPLIYAL,
Foreigners Are Flocking To India To Rent Wombs And Grow Surrogate Babies, businessinsider, REUTERS,SEP. 30, 2013, available at http://www.businessinsider.com/india-surrogate-mother-industry-2013-9?IR=T(Last visited Feb. 25, 2015).
[45] Evelina Giobbe, Confronting the Liberal Lies About Prostitution, in THE SEXUAL LIBERALS
AND THE ATTACK ON FEMINISM 67-69 (Dorchen Leidholdt &Janice G. Raymond eds., 1990).
[46] Indian Penal Code, 1860 , Act No. 45 of Year 1860, (6th October 1860) , § 373.
[47] Supra note at 2.
[48] Bible Verses about Surrogate Motherhood, Genesis 16:1-16 , Genesis 30:1-24, openbible available at http://www.openbible.info/topics/surrogate_motherhood(Last visited Feb. 25, 2015).
[49] M Naushad Ansari, Surrogacy in the mirror of Hinduism and Islam, 11 October 2011, available at http://twocircles.net/2011oct11/surrogacy_mirror_hinduism_and_islam.html(Last visited Feb. 25, 2015).
[50] Denise E. Lascarides , A Plea for the Enforceability of Gestational Surrogacy Contracts Hofstra Law Review Volume 25 | Issue 4 Article 4 available at http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1980&context=hlr(Last visited Feb. 25, 2015).
[51] European Centre for Law and Justice, SURROGATE MOTHERHOOD: A VIOLATION OF HUMAN RIGHTS THE COUNCIL OF EUROPE, STRASBOURG, 26 APRIL 2012, available at http://www.culturavietii.ro/wp-content/uploads/2015/01/Surrogacy-Motherhood-ECLJ-Report.pdf(Last visited Feb. 25, 2015).
[52] WP(Crl.) No.82 of 2009.
[53] Anne T. Gallagher, The International Law of Human Trafficking, Cambridge University Press, 30-Sep-2010.
[54] UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, available at: http://www.refworld.org/docid/4720706c0.html (Last visited Feb. 25, 2015).
[55] European Union , Council of Europe Convention on Action against Trafficking in Human Beings , Council of Europe Warsaw, 16.V.2005, available at http://conventions.coe.int/Treaty/en/Treaties/Html/197.htm (Last visited Feb. 25, 2015).
[56] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html(Last visited Feb. 25, 2015).
[57] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html (Last visited Feb. 25, 2015).
[58] UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, available at: http://www.refworld.org/docid/3ae6b3970.html (Last visited Feb. 25, 2015).
[59] Bandhua Mukti Morcha v.Union of India, 1984 (3) SCC 161.
[60] Supra note at 36.
Immanuel Kant (1724–1804) Lecture on Ethics (1779), Kant’s Moral Philosophy, Stanford encyclopedia of ethics , Feb 23, 2004, http://plato.stanford.edu/entries/kant-moral/(Last visited Feb. 25, 2015).
[61] The Council of Europe , Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine Oviedo, 4.IV.1997 , Oviedo, Spain 4 April 1997.
[62] Transplantation of Human Organs Act, 1994 , NO. 42 OF 1994 , 8th July, 1994.
[63] The Immoral Traffic (Prevention) Act, 1956 , [NO.104 of 1956], [30th. December, 1956.
[64] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), Article 7, 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html Article 7.
[65] PARLIAMENTARY ASSEMBLY OF THE COUNCIL OF EUROPE 1ST PART OF 2013 PARLIAMENTARY ASSEMBLY SESSION , RECOMMENDATION 2009 (2013)1 TOWARDS A COUNCIL OF EUROPE CONVENTION TO COMBAT TRAFFICKING IN ORGANS, TISSUES AND CELLS OF HUMAN ORIGIN , available at: http://www.coe.int/t/dg3/healthbioethic/Texts_and_documents/INF_2014_5_vol_II_textes_%20CoE_%20bio%C3%A9thique_E%20(2).pdf Article 7.
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