ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Right to Abort in Surrogacy Contracts

An Enquiry

This article makes an enquiry into the right to abort in surrogacy contracts as visualised by the bill on Assisted Reproductive Technology drafted by the Indian Council of Medical Research and introduced in Parliament in 2010. It argues that the bill's anti-abortion clause raises important questions of ethics, fundamental rights as well as legal remedies, if any, in the event of a breach of contract.

Surrogacy is a contract for services which are highly personal in nature, and which are intended to bring social and familial contentment to the commissioning parents through childbirth. Artificial reproduction gives childless families a chance to fulfil a basic human need, that would otherwise be impossible to achieve. However, surrogacy contracts raise several critical questions, abortion being one of them.

The issue of abortion is essential inasmuch as it constitutes a breach of contractual obligations. The commissioning parents contract with the surrogate and take significant steps to set the gestational process in motion, by relying on the reasonable expectation that there would be no abortion. If the contract is breached by the surrogate, the parents are left without alternatives. Thus, one may assert that the question of abortion, unless resolved at the time of entering the contract, might disturb the interests of the parties along the nine months of the contract.

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