NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI

JURISPRUDENCE

RESEARCH PAPER

TOPIC: TESTING ALTRUISTIC SURROGACY ON THE TOUCHSTONE OF NATURAL LAW

SUBMITTED BY: SUBMITTED TO:

SHILPI RANI MR. RABINDRA KUMAR PATHAK

SEMESTER V (A) ASSISSTANT PROFESSOR, LAW

ROLL NO. 888 NUSRL RANCHI

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 1. AN INTRODUCTION TO NATURAL LAW

As the contours of natural law theory are distorted, it becomes extremely important to have a
clear understanding of various concepts attached to the theories of Natural Law before delving
into specific analysis of situations. It is also extremely important to clear out any confusion that
might creep in with respect to the concepts helpful in analysing a specific situation. There is
hardly any scepticism about the fact that though natural law theories differ in their aims and
content, the central idea is shared by each theory. They all agree with the fact that there exists a
higher non human law based on morality based on which the legitimacy of human action and the
moral & legal validity of human law can be evaluated. The scepticism however definitely arises
about the “notions of morality” espoused by these theories. A common question which arises in
this context is “How can natural law evaluate the morality of human actions when morality itself
is a relative concept?” It is important to refer to Saint Aquinas in this context. Saint Thomas
Aquinas who is regarded as the greatest exponent of Natural Law Theory believed that though
the basic outlines of an ideal human behaviour was clear, as we move closer to more specific
situations the probability of being prone to error and the scope for difference of opinion is
inevitable. However, there is no scepticism in the fact that most natural law theorists believe in
objective standard of morality.

John Stuart Mill, in his book On Liberty, has discussed the concept of Liberty at length and
categorized it into certain types. First he states, is the liberty of thought and opinion and the
second being type is the liberty of tastes and pursuits, or the freedom to plan our own lives. He
was of the opinion that individual liberty along with the right to dissent should be given due
credit in a progressive society. The popular belief or opinion of the majority should not silence
its counterpart. Mill, was also one of the forerunners of the Utilitarian theory. If we go back to
Bentham‟s idea of Act utilitarianism, we find that was on the pretext of conserving and
promoting individual liberty. Thus a morally right act is one that, in the situation the actor is
actually in, will maximize social utility. On that footing, the parties to surrogacy are: the
surrogate mother, the commissioning parents, the doctor/clinic. By no stretch of imagination, it
can be said that any of the party would be at a loss. The surrogate mother along with the
clinic/doctor would enjoy economic benefits while the commissioning parents could cherish the

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joy of parenthood.1 Moreover, the concept of Egalitarianism requires assigning extra weight to
benefits to the worse-off when aggregating the consequences of possible policies with a view to
deciding which is optimal. Roughly speaking, egalitarianism is utilitarianism modified to give
priority to the interests of the worse-off.2 Further, Kelsen in his pure theory of law states, that the
science of law should be purged of all psychological and sociological elements on the one hand
and of all problems of morality and justice. Now the question which arises here is that whether
law can be conceived devoid of ethics and morality? Or in other words, whether law could be
perceived without taking into account the sociological or psychological factors attached to it?

In its most uncompromising form, natural law theory proclaims Thomas Augustine’s doctrine,
lex injusta non est lex which means unjust law is no law. 3 This boils down to the fact that
whatever is consistent with Natural Law is right and whatever is inconsistent with Natural Law is
wrong. It is necessary to erase any scope of confusion in this regard as it would be detrimental in
analysing the specific situation (Altruistic Surrogacy) in the later part of the essay. It must be
understood right from the beginning that the implication of the above principle is not that what is
unnatural is morally wrong. It is essential to acknowledge the distinction between natural acts
and natural laws. For instance the act of surgery for restoration of good health are consistent with
natural drives of human beings i.e. survival but the act of surgery itself is unnatural.

“Altruistic Surrogacy” incorporates two pertinent concepts: “Altruism” and “Surrogacy”.

“Altruism” refers to the dedication and devotion towards betterment and welfare of others. 4 This
is one of the qualities which are sine qua non for becoming a surrogate mother. Surrogacy refers
to a process where a woman agrees to get impregnated and deliver a child for another party.
Altruistic Surrogacy refers to surrogacy where the surrogate mother is not given any
compensation for her services except for medical expenses. Surrogacy can also be differentiated
on ground other than the payment of compensation to the surrogate mother viz. Traditional

1
Dale-Moore, Rosa (2015) "A Consideration of International Surrogacy Under Act-Utilitarian Ethics,"Sound
Decisions: An Undergraduate Bioethics Journal: Vol. 1: Iss. 1, Article 1
2
Samuel Scheffler describes an egalitarian consequentialist position in The Rejection of Consequentialism (Oxford:
Oxford University Press, I982), pp. 26-33. See also Paul Weirich, "Utility Tempered with Equality," Nous I7 (I983):
423-39
3
Thomas Aquinas: Political Philosophy, Internet Encyclopedia of Philosophy, available at
http://www.iep.utm.edu/aqui-pol/.
4
What is Altruistic Surrogacy?, About Surrogacy, available at https://surrogate.com/about-
surrogacy/typesofsurrogacy/what-is-altruistic-surrogacy/

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Surrogacy and Gestational Surrogacy. In case of Traditional Surrogacy, the surrogate mother is
impregnated by the sperm of a married man with prior arrangement that on the delivery of the
child, it would legally belong to the married man and his wife. Gestational Surrogacy is where
after the union of the sperm and egg of the married couple, the embryo is implanted in the
surrogate mother‟s womb.5

The legitimacy of Altruistic Surrogacy would be analysed with respect to two distinct theories of
Natural Law- the Classical Roman Catholic view and the Modern Atheistic view. It would not be
wrong to state that the two views may espouse notions which would be on either ends of a
spectrum. The reason being they exist on two distinct bases with respect to the legitimacy of
actions. The atheistic natural law theorists believe that rationally and reasoning must be used to
discover laws governing natural events and human actions which are in conformity with such
natural law are morally right. The theistic natural law theorists on the other hand believe that
God created nature and also the laws in the nature that is why the obedience to the laws created
by God is morally justifiable.

2. THE ROMAN CATHOLIC CHURCH: EVERYTHING BUT REASON

The moral philosophy of the Roman Catholic Church is based on the teachings of Saint Aquinas.
Before delving into the analysis of Altruistic Surrogacy from the perspective of the Roman
Catholic Church, it is essential to lay down the tools from the teachings of Saint Aquinas which
would help in the analysis of the concept. For Aquinas the nature was all good. And anything
against the order of nature was not justifiable. He believed that man cannot go beyond what God
has preached. This is why his concept of reason and belief that human reason is of paramount
importance is ironical. As per Saint Aquinas human reason is one of the best abilities of human
being but there is a possibility that reason might be infected with sins. 6 This conception of
Aquinas though problematic as it is against the very concept of reason and free will, forms an
important part of Aquinas‟s theory of Natural Law.

5
Brian Manning ,Surrogacy Terms: Gestational Carrier vs. Surrogate, available at
http://www.circlesurrogacy.com/blog/circle-surrogacy/surrogacy-terms-gestational-carrier-vs-surrogate/
6
Thomas Aquinas: Political Philosophy, Internet Encyclopedia of Philosophy, available at
http://www.iep.utm.edu/aqui-pol/, last accessed on October 28, 2018. Hans Oberdiek, The Nature of Law by Alan
Watson, available at https://www.jstor.org/stable/3311815,

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The common arguments by a lay man in support of surrogacy viz. Surrogacy is morally good as
it is completes a family by blessing a couple with a child who are unable to have children; the
surrogate mother develops close bonding and support with the family are not plausible in
Aquinas conception of Natural Law. As per CCC 2376 of the Vatican Church, a technique would
be immoral if it is cause of dissociation of a husband and a wife because of the intrusion of a
person other than the couple. These artificial techniques violate the rights of a child to be born of
father and mother known to him. Also the spouses‟ right to become parents through each other is
infringed. Therefore Saint Aquinas would contend that Surrogate motherhood goes way beyond
the limit prescribed by God. As Aquinas believes anything that is unnatural is sinful and
anything that is sinful is morally unjustified and poisons the reason and rationale, surrogacy
would be immoral. 7 In response to the common argument in support of surrogacy, Aquinas
would argue that a couple allowing another person into their marriage for procreation of children
is nothing less than adultery which is one of the gravest sins. To the second common argument,
he would reply that the surrogate mother is used as a service lady who is absolutely forgotten
after the delivery of the baby who stayed in her womb or 9 months. The rights of the mother to
have her baby are completely infringed upon.

One of the key instructions laid down by the Vatican Church explains that the argument of
couples defending their morality by claiming that they have a right to have a child with each
other‟s consensus is based on a wrong assumption. The instruction as laid down mentions that
marriage does not confer a right on the couple to have a child, but they only have a right to do
natural things that are ordered to procreate. 8

Another way in which the Surrogacy violates the Catholic Natural Law principle is by violating
the sanctity of the trilogy. To understand this argument we need to first understand how the
trilogy is formed. In Jeremiah 1:5 it is mentioned that God knew a baby before it was born and
Psalm 139 mentions that God knit us together in our mother‟s womb. This symbolizes that
human life is sacred and the result of divine intervention and so is sexual intercourse. In Genesis

7
Dr Taylor Marshall, Thomas Aquinas on Natural Law in 5 Points, available at
http://taylormarshall.com/2014/06/thomas-aquinas-natural-law-5-points.html,
8
Instruction on respect for human life in its origin and on the dignity of procreation replies to certain questions of
the day, Congregation for the doctrine of the faith, available at
http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respectforhuman
-life_en.html,

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(2: 24) it is mentioned that it is not good for a man to leave alone for that reason eve was created
so that they can become one. Jesus in Matt (19:6) says that what God has joined together, no one
can divide. In Genesis (1:28) God tells Adam and Eve to be fruitful and multiply to fill the
world. Therefore it is implied that marriage of a man and woman is sacred. Thus, the sacred
trilogy is formed. Thus, as per God’s wish children, marriage and sex are meant to exist
together. In the case of gestational surrogacy where the baby is not born out of sexual intercourse
but in a test tube, the sacred trilogy is grossly violated and the divine intervention is hurdled.
Intervention with God‟s will is unacceptable as per the theory of Catholic Natural Law.
Therefore, Altruistic Surrogacy in so far as it violates the God‟s will is morally unjustified. If a
couple is childless, it is the will of the God,10 and the sacred trilogy is maintained without
outside interference, once there is outside interference, the act becomes grossly immoral.

3. AN ATHEISTIC PERSPECTIVE: EFFORT TO LIGHTEN UP THE DARK

ROOM

Unlike The Roman Catholic Natural Law Theorists, the atheistic Natural Law Theorists believe
in true rationality and believe in true logic and reason. The reason behind the use of the word
„true‟ to qualify reason is that unlike the hypocritical and problematic approach of natural law
perspective on reason by tainting it with sins, the atheistic perspective isolates reason, logic and
morality from God. The Atheistic perspective holds that morality of an action is absolutely free
from the concept of “will of the God”. Richard Dawkins in his book “The God Delusion”
mentions how the actions of human beings can be evaluated without any reference to divine
command. Professor Dawkins believes that the roots of morality lie in Darwin‟s evolution
theory. In his book he mentions he experiments conducted by Harvard Biologists Hauser and
Singer. The experiment revealed that there is no statistically significant difference between
atheists and religious believers in making moral judgments.9

In the absence of a concrete atheistic stand on the subject of altruistic surrogacy, it becomes
difficult to define its contours. Two major reports on surrogacy provide some insight into a
secular stand of surrogacy viz. The Warnock Report10 and the Brazier Report11 . An analysis of

9
Dawkins, Richard. “The God Delusion”, (2006), 226
10
Jacqueline A. Priest, “The Report of the Warnock Committee on Human Fertilization and Embryology”, The
Modern Law Review (1985)48.

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these three reports would aide us in evaluating the secular stand on surrogacy. The problem with
respect to these reports is that though they present a secular stand on surrogacy without judging
the morality of it on the basis of religion, they are incomplete and marred with practical
problems. While all of the reports tend to get into the argument that commercial surrogacy
should be discouraged, no one of them actually explore the rational alternative angle to it.

The argument that surrogacy happens through consent and helps in making the couple happier is
far more problematic than what was gauged (or rather could not be gauged). The cultural and
traditional restrictions are not taken into account when we contend in favor of surrogacy. To take
the example of India, the cultural reigns are so tightly attached that a case of altruistic
surrogacy where a close family member becomes the surrogate mother is hardly heard of. A
survey in India reveals that only 2.5 % of the women would actually like to be a surrogate
mother to help a close family member. In this respect however the Brazier Report expressed its
concerns to an extent by acknowledging the fact that a lot of surrogates do feels distressed and
treated in a demeaning way by the commissioning couple. 12 One of the problems with the
approach in the secular reports of Brazier and Warnock was the stand they took on the
consequence of the child born out of surrogacy.13 A majority of Warnock committee thought of
surrogacy as morally wrong because it felt that there would be adverse consequence on the
psychology of the child. It is a fact undisputed that the relationship of a child with his mother is
extremely significant as regards development of a personality and his identity. To help the child
in establishing such identity, the relationship between the mother and the son must be exclusive.
It is contended that in the best interest of the child, a single woman should have a share in the
existence of a child.

Another ethical dilemma which hovers around the secular discussion regarding the morality of
altruistic surrogacy is the question of whether the act of conceiving a child without desiring it
fundamentally should be encouraged. Again the argument that even if the surrogate mother does
not fundamentally desire a child, there is a couple eagerly desiring to have the child is

11
Brazier, Margaret; Campbell, Alastair; Golombok, Susan, Surrogacy: Review for health ministers of current
arrangements for payments and regulation - Report of the review team, available at
12
Amrita Mukherjee, Why altruistic surrogacy is impossible in India, Asia Times, available at
http://www.atimes.com/altruistic-surrogacy-impossible-india/,
13
Pauline Everett, A Relational Defence of Surrogate Motherhood, available at
http://etheses.dur.ac.uk/4464/1/Pauline_Everett_PhD_Thesis.pdf?DDD32+,

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problematic. The issue with this approach arises when a child is born with deformity. Both the
surrogate mother and the commissioning parents would not like to take responsibility of the
child. Such a possibility is a real possibility as a number of defects cannot be detected prenatally.
A similar situation may arise when before the child is delivered, the commissioning father dies.

The important question in the end remains that whether the use of human beings as means to
achieve ends is ethical. Such an approach may set a dangerous precedent for years to come
especially when it has been reported that parents have conceived baby just for the sake of using
he baby as a donor of bone marrow. Such an approach can be compared to medical experiments
in Nazi Germany where they contended that human beings may be used as means to achieve
ends rather than human beings being themselves the end.14 Is it ethical to follow the approach of
Nazi occupation or not needs no answer.

CONCLUSION

The morality and the ethics behind altruistic surrogacy were duly examined in the previous
chapters. It can be evidently seen that the Roman Catholic Church perspective is out rightly
opposed to the concept of Altruistic Surrogacy. The claim of the Roman Catholic Theorists that
their perception of Natural Law theory is based on reason is nothing more than an absolutely
ludicrous claim tarred with irony and hypocrisy. The sole reason behind the test for judging the
morality of an act lying in a single principle viz. whether it violates the command of the God can
be termed as anything but reasonable. The Atheistic Perspective on the other hand examines
surrogacy from a completely non-religious perspective. The contentions are reflective of the fact
that morality need not be tainted with the test of religion and reason does not need the test of
sins. Though it can be said that there are loopholes in the arguments presented by secular
theorists, at least they are based on empirical evidence and rationality.

The Secular argument seems more plausible than the Roman Catholic Perspective for the above
reasons. However, it must be kept in mind that the issue is largely concerned with medico-legal
considerations. There is a dearth of quality research with respect to psychology of child born out
of surrogacy

14
Leo Alexander, "Medical Science under Dictatorship," New England Journal of Medicine (1949) 39.

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