Commercial Surrogacy, Compensation for Research Participants and Other Arguments for Public Education in Bioethics

This issue of the Asian Bioethics Review contains articles on topics that remind us of the need for comprehensive — and democratic — bioethics education. The two essays on assisted reproductive techniques and surrogacy highlight a need for more guidance in terms of legal regulations or guidelines in India and Japan. The necessity for legislative updating and thus, for public consultations regarding specific proposals, leads us to query the nature, objectives and adequacy of consultations that have to be undertaken.

The article on undue inducement for participation in clinical trials in the Philippines points in the same direction. While the author does not contemplate legislation as a way to resolve differences in approach and practice, he recognises the importance of finding a way forward within the context of local culture and traditions. Thus, extensive community consultations would appear to be a minimal requirement for an exercise that would enable participants to search within themselves for culturally-informed validation of pertinent proposals.

The yearning for more definitive regulatory or legal guidance has to be sorted out. One way to address this is to pass legislation that provides definitive guidance where not yet available, or that which plugs discernible loopholes in existing regulations. In either case, the introduction of legislation requires preparatory public consultations to determine the views of experts and the sentiments of the general public concerning the practices under consideration. This editorial takes the view that public consultations about important issues related to these topics should take the opportunity to profit from discussions involving a cross-section of society, based on the provision of adequate relevant information to those who are being consulted, and preceded by a serious public education exercise. A serious public education exercise empowers members of the public to participate confidently in a decisionmaking process that respects their right to deliberate on, and determine the kind of future that they want for themselves and their society.

In their article about the “wanted” child, Diksha Munjal and Yashita Munjal identify gaps and challenges in formulating legislation on commercial surrogacy in India. Noting that the practice of commercial surrogacy gives rise to controversies because (among other things) of the involvement of a woman who has occasionally been perceived as engaging in womb-renting or in the commodification of children, they proceed to examine problems relating to the enforceability of surrogacy agreements, the determination of parentage, the protection of a child’s interests, etc. They examine these issues in the context of existing Indian laws as they seek to identify legislative gaps and challenges.

A basic premise behind the examination is the legality of commercial surrogacy as declared by the Supreme Court of India when it ruled in the case of Baby Manji Yamada v Union of India.¹ While the Indian Parliament continues to debate the proposed provisions of the Assisted Reproductive Technologies Bill, guidance has been provided by the Indian Council of Medical Research through the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India.² Even so, the authors point out that the latter document fails to address fine legal nuances and that the provisions do not actually have the force of law.

The authors cite a court decision³ upholding personal decisions on birth and having babies as reflecting “the right of reproductive autonomy”, and as a facet of a “right of privacy”. The idea is that the State cannot interfere with the method of reproduction that a couple decides to use as an expression of their right to reproductive autonomy. In the exercise of the private ordering of one’s life, procreation cannot be brought under the State’s control. The State must not be permitted to dictate whether the procreation took place naturally or through some method of assisted reproduction. If the State cannot intervene in the private-ordering of procreation, accordingly it must not be permitted to intrude in the method of such procreation. Nevertheless, there are limits to reproductive autonomy and controls have to be introduced to prevent baby brokers from overwhelming an expectant mother or offering financial inducements to...