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Surrogacy: an Emergence of of Socio Legal Conflict

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“Surrogacy Motherhood”

Under the Keen Supervision of:- Prof. Dr. M. Shabbir (Ambedkar Chair Professor of Law) Incharge & Chairman Department of Law, A.M.U. Aligarh

Submitted by:-
Faisal Ashfaq
LL.M. (P)

* Introductory Remarks

* Surrogacy and its Types

* Necessity for Surrogacy

* Hague Conference on Private International Law, March 2011

* National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India

* The Assistive Reproductive Technology Regulation (Draft) Bill, 2010

* Socio Legal Issues

* The Present Indian Scenario

* International Perspective on Surrogacy

* Conclusion

* Bibliography

Introductory Remarks
The very word surrogate means “substitute”. That means a surrogate mother is the substitute for the genetic-biological mother. In common language, a surrogate mother is the person who is hired to bear a child, which she hands over to her employer at birth.
According to the Artificial Reproductive Technique (ART) Guidelines:-
Surrogacy is an “arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention of carrying it to term and handing over the child to the person or persons for whom she is acting as surrogate; and a “surrogate mother” is a woman who agrees to have an embryo generated from the sperm of a man who is not her husband, and the ococyte for another woman implanted in her to carry the pregnancy to full term and deliver the child to its biological parents(s).
Nature has bestowed the beautiful capacity to procreate a life within women and every woman cherishes the experience of motherhood. Unfortunately, some women due to certain physiological conditions cannot give birth to their own off-spring. The desire for motherhood leads them to search for alternative solutions, and surrogacy presents itself as the most viable alternative. Advances in assisted reproductive techniques such as donor insemination and, embryo transfer methods, have revolutionized the reproductive environment, resulting in surrogacy as the most desirable option. The system of surrogacy has given hope to many infertile couples, who long to have a child of their own. Taking advantage of the advanced medical facilities, they seek alternative solutions like Artificial Reproductive Technology (ART), In-Vitro Fertilization (IVF) and, Intra-Uterine Injections (IUI), in the hope of having a child of their own.
In surrogacy, the rights of the child are rarely considered. Early handover of the child hampers breastfeeding. Transferring the duties of parenthood from the birthing mother to a contracting couple is denying the child its claim to both the mother and the father. It could affect the psycho-social well-being of children who are born as a result of a surrogate motherhood arrangement. A shocking case of surrogacy was recently unearthed in the Bombay International Airport, where a foreigner couple came for surrogacy arrangements in India in order to get an organ transplant to their sick child in their country. This revelation further highlights the need for studies on surrogacy to provide a foundation for the formulation of laws and regulations in surrogacy arrangements. Therefore, there is a clear need to protect the interests of both the surrogate mothers and the children produced out of such arrangements.
The practice of renting a womb and getting a child is similar to outsourcing pregnancy. The volume of this trade is estimated to be around $ 500 million and the numbers of cases of surrogacy are increasing rapidly. The exact extent of this practice in India is not known, but inquiries have revealed that this practice has doubled in the last few years. There is a growing demand for fair-skinned, educated young women to become surrogate mothers for foreign couples. Often, couples have to wait for as long as eight months to a year for their turn. Normally women from small towns are selected for outsourcing pregnancy4. In places like Anand, Surat, Jamnagar, Bhopal, Indore, a large number of couples from both within India and abroad travel to fulfil their desire for a child. Several American, Russian and British women are duly registered with the Akankshya Clinic of Anand and the Bhopal Test Tube Baby Centre for the procedure.

Surrogacy and Its Types
Surrogacy is a recognized method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party.

She may be the child’s genetic mother (the more traditional form of surrogacy) or she may, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them. If the pregnant woman takes compensation for carrying and delivering the child (other than medical and other reasonable costs) the procedure is called a commercial surrogacy, otherwise the procedure is referred to as an altruistic surrogacy. Surrogacy is a blessing for infertile women and homosexual couples which wish to have children.

The literal meaning of surrogate is ‘substitute’. Surrogacy arguments are motivated by a desire for genetically related child and the disincentive arising out of prolix adoption procedure coupled with difficulty in finding suitable child for adoption. A standard definition of surrogacy is offered by the American Law reports in the following manner. “A contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, and to terminate all of her parental rights subsequent to the child’s birth.

Necessity for Surrogacy
As it has been very rightly said that “necessity is mother of inventions”, here too it is well applied in the modern era of medical advancements. It is a long history of the human race that childless couples always remained in a deep torment to have their own biological children; and their problems has been resolved with many unconventional methods in the past.
The main necessity for the adoption of surrogacy is rising cases of ‘Infertility’ in both male and female humans.

“The medical definition of infertility is the failure to conceive following twelve months of unprotected intercourse.”

But at last the surrogacy has made it possible to those people whom the nature had previously rendered barren due to many causes and circumstances. Some of these causes are provided as following:-
Medical Causes of Female Infertility:- * Hormonal fluctuation – This occurs when ovaries don’t release eggs on time, and when they do, the hormones stop them from fertilizing on the inner layer of the uterus. * Excessive presence of androgen hormones (male hormones). * Stenosis, meaning cervical narrowing. * Obesity – extra bodyweight can increase one’s BMI and can cause fertility problems. * Benign tumours or scarring of the uterus. * Any inborn defect. * Lack of cervical mucous – inadequate amount of cervical mucus or its poor quality can cause infertility amongst women. * Endometriosis, a state in which a tissue covering the walls of the uterus or endometrium starts developing outside the uterus lining. * Adhesions, formation of scar tissues due to endometriosis, infections or surgery within the abdomen can cause fertility issues. * Certain medical conditions like diabetes or thyroid disease can trigger off infertility * Sexually transmitted diseases like Chlamydia, trichomonas or gonorrhoea can cause pelvic scarring and internal infections. * Sperm allergy – when a body produces antibodies like CD57+ cells that damage a partner’s sperm. * Stress * Lifestyle changes * Alcohol consumption * Smoking * Age – the older you get the higher your chances of becoming less fertile. Women above the age of 35 often find it difficult to conceive * The embryo fails to get implanted inside the walls of the uterus. * The fallopian tube finds it hard to pick up the fertilized egg.

Medical Causes of Male Infertility:- * A man could become infertile due to reduced sperm count (oligospermia) or low levels of motility (the ability to move spontaneously). Abnormal shapes of sperms, too, can contribute to infertility. * When the passage for the sperm gets blocked, due to ejaculation problems. * Sexually transmitted infections or STIs such as chlamydia and gonorrhoea can cause fertility issues. * If mumps or other venereal infections attack a man’s system after the onset of puberty, his chances of becoming infertile increase. * Fever. * Any damage to the body’s vas deferens part (testicles) can result in infertility. * Use of anti-depressants or hypertension drugs. * Regular intake of excessive alcohol. * Smoking. * Prevailing chronic conditions such as hypertension, thyroid disease and diabetes. * Hormonal or genetic problems like cystic fibrosis. * Varicocele. * Exposure to harmful chemicals, hazardous toxins, pesticides or radiation. * Certain medicines have an adverse affect on a man’s fertility. These include Sulfasalazine, Cimetidine, Methotrexate) and Phenytoin. * Excessive and undirected use of steroids can also cause impotency in males.

Non-Medical Reasons- * Inconvenience- The career oriented people don’t want to waste their time on gestation period as it is very harmful to their future plans. Example- Amir Khan’s & Shahrukh Khan’s recent babies born through ART techniques, etc. * Homosexuality- As we have seen in the recent times that the homosexualism has been liberalised and decriminalised in many countries, so naturally these homosexual couples are inefficient to give birth to babies, and that’s why they take resort of the ART technology. Example- recent surreptious visit of Princess of Norway to help her homosexual friend to have a baby born through ART in India. * Luxury- Some people who have lots of money at their disposal also take up the option of reproducing children via ART to avoid the pain and sufferings caused during the gestation. * Preserved eggs and semen- people who aren’t ready to have children at a moment also takes measures like preserving their gametes to have a children in future if any of them dies. So after the death of a spouse the other one can have a biological child of both despite of the fact, through ART.

Hague Conference on Private International Law, March 2011
On Thursday, 7 April 2011, the Hague Conference on Private International Law's Council on General Affairs and Policy invited its Permanent Bureau to intensify its work on the broad range of issues arising from international surrogacy arrangements.
International surrogacy cases often involve problems concerning the establishment or recognition of the child's legal parentage and the legal consequences which flow from such a determination (e.g., the child's nationality, immigration status, who has parental responsibility for the child, who is under a duty to maintain the child, etc.). Problems also arise because the parties involved in such an arrangement can often be vulnerable or put themselves at risk.
A brief Internet search on "international surrogacy" and, in today's world, one is a click away from hundreds of websites promising to solve the problems of infertility through in vitro fertilisation techniques (IVF) and surrogacy. It is now a simple fact that surrogacy is a booming, global business which has created a host of problems, particularly when surrogacy arrangements involve parties in different countries throughout the world.
The new mandate issued by the Hague Conference's Council requires the Permanent Bureau to gather information on the practical legal needs in the area, comparative developments in domestic and private international law, and the prospects of achieving consensus on a global approach to addressing international surrogacy issues.

National Guidelines for Accreditation,
Supervision and Regulation of
ART Clinics in India

The Indian Council for Medical Research has given Guidelines in the year 2005 regulating Assisted Reproductive Technology procedures which has been approved and enforced by the Ministry of Health and Family Welfare, Government of India. The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The following observations had been made in the guidelines issued: * Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be only for commercial purposes. * A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child. * A surrogacy contract should necessarily take care of life insurance cover for surrogate mother. * One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different. * Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian. * The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only. * Right to privacy of donor as well as surrogate mother should be protected. * Sex-selective surrogacy should be prohibited. * Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

A new bill is in the works to regulate the practice of surrogacy aiming to avoid some of the pitfalls of the ICMR guidelines discussed above. In the previous chapter were given extracts from the draft ART bill particularly concerning the surrogacy arrangement, rights of the surrogate mother, the child, etc. The bill empowers a National Advisory Board to act as the regulatory body laying down policies and regulations. It also seeks to set up State Advisory Boards that are, in addition to advising state governments, charged with monitoring the implementation of the provisions of the Act, particularly with respect to the functioning of the ART clinics, semen banks and research organizations. The Assisted Reproductive Technology (Regulation) Bill defines surrogacy as an “arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention of carrying it to term and handing over the child to the person or persons for whom she is acting as surrogate; and a ‘surrogate mother’ is a woman who agrees to have an embryo generated from the sperm of a man who is not her husband, and the oocyte for another woman implanted in her to carry the pregnancy to full term and deliver the child to its biological parents(s).” By this definition, all surrogacy arrangements that involve the woman bearing a child using her own egg (oocyte) and the commissioning man‘s sperm are illegal. Also, by this definition, fertile surrogate mothers will necessarily have to use technology meant for treatment of infertility. Surrogates will now be forced to use only in-vitro technologies even though they can get pregnant with methods like artificial insemination which are much safer for them. Further, in light of the Artificial Reproductive Technology (ART) practiced today, it reflects that there is no standardization of the drugs used, no proper documentation of the procedure, insufficient information for patients about the side-effects of the drugs used, and no limit to the number of times a woman may be asked to go through the procedure. They do not disclose the fact that a ‘successful cycle’ need not lead to a baby being born. Further, the clinics do not give exact information on the procedures and their possible side-effects.

A noticeable trend is that the ART clinics are becoming the central hub of all surrogacy-related activities. Some of the duties of the clinics involve selecting the surrogate mothers – the bill lays down conditions that the surrogate mothers have to meet – and obtaining relevant information, informing all parties involved about their rights and obligations. The bill specifies what is and is not allowed regarding these topics. ART clinics are also required to treat all the information they obtain with utmost confidentiality. In practice this entails that ART clinics are not allowed to provide any information about surrogate mothers or potential surrogate mothers to any person. This creates a problem for intended parents since they have to turn to a middleman in order to find a surrogate mother. This is rather controversial, not just because of the involvement of agents, but also because it seems unfair that the intended parents, who are about to make a significant investment; have little control over the selection process. A better option could be to release personal information at the discretion of the surrogate. Since several parties with dissimilar interests are involved in the surrogacy arrangement, controversy about someone‘s role can arise.

The bill draws clear lines to avoid these problems: * The donors should relinquish parental rights at the time of donation, and the surrogate mother, shortly after birth.

* Traditional surrogacy is no longer allowed. The reason for this is that when the surrogate is also the genetic mother the risk of legal complications increases.

* NRIs and foreign couples are required to assign a local resident who is in charge of the surrogate‘s welfare until the act of relinquishment

* For the same group, it is also mandatory to be able to document their ability to take the newborn back to their home country with them (in response to the Manji incident).

* Interestingly, the bill allows unmarried couples and individuals to engage in surrogacy. However, the bill states that conception by surrogacy is not allowed when the intended parent(s) is able to conceive the natural way. Consequently, an issue arises when it comes to individuals: women have to prove that they are not capable of bearing a child, but on the other hand, men are not required to prove this.

* The surrogate baby will be recognised as the legitimate child of the commissioning couple even if they divorce or become separated, with the child‘s birth certificate carrying both genetic parent’s names.

* The surrogate mother may receive monetary compensation from the couple or individual for agreeing to act as a surrogate mother.

Next, the Rules of the Bill assume that ART is being used only by heterosexual infertile couples. So they specify indications for various techniques based on the nature of infertility. The side effects are underplayed as ART procedures carry a small risk both to the mother and offspring‘. Evidently, the risk is small in comparison to the pain and trauma of infertility. In any case, the issue of fertile women‘s bodies for egg retrieval or for surrogacy does not figure in the discussion on risk.

The ART Bill has provided for many informed consent forms to be filled and records to be kept. But it does not require that adequate information be given to the surrogate mother about the possible side-effects. Registration of surrogates with a sperm bank further underlines the fact that the surrogate is seen as just another component of the technology – a womb. This ignores the fact that while donated egg or zygote gets separated from the woman‘s body, the womb continues to stay inside her and thus has to be looked at differently. Thus, a Bill that is meant to safeguard the provider and to commissioning couples does not seem to protect the rights of the surrogate. She is the most marginalized and vulnerable one in this triad.

Therefore, surrogacy is both a threat and an opportunity. On the one hand it gives infertile couples and surrogate mothers the possibility to fulfil their desires: a child and the opportunity to take better care of their family respectively. On the other hand there is a risk that with the commodification of children and parenthood, women are exploited and turned into baby producers. Several reasons for and against surrogacy have been given and one cannot easily decide what is morally right and what is wrong. However, both opponents and supporters of surrogacy agree that surrogacy poses a series of social, ethical and legal issues. Although there are now some rules and regulations in place, not enough is done at a national level to protect the interests of Indian women who serve as surrogate mothers, the children they bear, or those intended parents who travel considerable distances to commission pregnancies.


When a society changes rapidly, its ethical norms are challenged. They are challenged by the biases of new knowledge and by the conflicts created as new practices threaten these norms.
Ethics is the notion of what is good and right in society that guides human action. In periods of transition new understandings emerge of what is ethical practice. This emergence is not a linear process but a trajectory interspersed with conflicts of ideas and interests in various arenas of the technology-society interface. In medicine, for example, the principles of beneficence, non-malfeasance, consent, confidentiality and patient autonomy have guided clinical practice. The discipline of public health added social responsibility and justice to the ethics of medical practice and research.

New reproductive technologies claim to help human beings through creative interventions that reduce suffering and have the potential to transform society. The commercialization of surrogacy, however, creates several social conflicts rather than resolving a few. It generates family pressure on poor women to offer their wombs for a price. Almost one third of Indian women are extremely vulnerable due to poverty, marginalisation in labour and job markets, patriarchal social and family structures and low educational levels. For them, in particular, the financial gain through surrogacy becomes a key push factor. It is well known that most surrogate mothers are from not so well off sections and their primary motive to become surrogates is monetary. This makes their economic exploitation easy for the agents working for commissioning parents.

Procreation and infertility must be interpreted within constructs like patriarchy and within existing social and economic inequalities. The same is true for surrogacy. The use of ART to help infertile couples add new conflicts. For example, the way ART is practised reduces parents into objects of medical experimentation and sanitizes the mystique of biological evolution. Surrogates frankly accept monetary motives (treatment, education and housing for family members) but face the dilemma that being a surrogate is socially unacceptable. So rather than tell their neighbours that they gave away their child, they tell them that the baby died. The government’s view on this subject is a matter of concern. In a meeting convened by the Ministry of Women and Child Welfare in June 2008, a minister of the government stated that the fact that these women get amounts equalling two-three years of their wages cannot be ignored. This is indicative of the mood in the government that sees surrogacy as a replacement for employment guarantee and adequate subsistence.

Another area of concern in the use of ARTs is for the disability and women’s movement. This is around the narrowing of choices for couples in the name of expanding choices. Gender, disability and infertility are social constructs. Yet, the Pre conception and Pre-natal Diagnostic Techniques (regulation and prevention of misuse) Act gives parents the absolute right to abort a disabled foetus. The use of preimplantational genetic diagnosis in ART gives the option to eliminate disability without defining any limits to this option. Thus, the selective exclusion of the disabled and of girls has become possible through ART .

There are cases of the surrogate refusing to part with the baby, but being unable to pay back the sum received. There are also instances of the surrogate changing her mind about the pregnancy and opting for abortion. Such actions conflict with the interests of the commissioning parents and the reputation and profits of the providers.

The prospective parents hope that the surrogate will then conceive and bear a child and immediately following birth, the baby is given to the married couple to raise as their own. It means surrenders all her parental rights in the child. This is usually accompanied by a written contract specifying the rights and duties of all parties concerned and the compensation for the service rendered by the surrogate mother. Now the difficult question arises as to who is the legal mother of the child and whatever position we take gives rise to these issues.

I. Legitimacy of the child:
A child is legitimate in common law if the parents are married at the time of conception or at the time of birth (Indian law) The question whether the legal status of the child by Artificial Insemination Donor (AID) with consent of the husband is similar to that of an adopted child was raised in Strad V Strad .In this case the husband had been given visitation rights in a divorce petition, but the wife later tried to have this right rescinded claiming that the child was illegitimate. She accepted though, that she had undergone AID. The court held that the child was legitimate and the husband could retain his rights. The court also held that the child had been “potentially adopted by the husband”. In Gursky v Gursky the Supreme Court of New York ruled that a child born through AID consented in writing by the husband was legitimate. But there were some conflicting decision also, e.g. People v Sorenson etc. Thus the United States passed the Uniform Parentage Act to solve the issue. Thus now the children born With AID are considered legitimate.

II. Liability of the Husband:
Well, another tricky problem is determining the consequences of the refusal to consent by the husband. A court might decide that the husband is to be the deemed father even though he has not consented. But it would be seen rather unfair to saddle the husband with the paternity where his wife has been inseminated against his wishes. On the other hand it would unfair to the child if the husband sought to deny paternity when for many years he had brought up the child as his own. In such a case he might face the doctrine of estoppels. In India the legitimacy of a child born during the subsistence of a valid marriage is preserved. Section 112 of the Indian evidence Act, 1872 provides: “the fact that any person was born during the continuance of valid marriage or within 280 days after its dissolution the mother reaming unmarried is a conclusive proof that he is the legitimate son of that man unless he shows that the parties to marriage had no accesses to each other”.
In India, Indian statues have conferred legitimacy on the offspring of void and voidable marriages but whether these provisions can be extended to children born with AID without consent of husband is a question to be answered. In India, neither there is statutory law nor much of case law to determine the legitimacy and parentage of the AID child. Legitimacy can be granted to children born with the help of AID only legislation. It can be of two types:
1. To make all children born by way of AID to be legitimate child of the legally wedded spouses during the subsistence of marriage.
2. To grant legitimacy only where there is consent of the husband.

III. Custody of the child:
What happens when there is tug of love in the court? Who gets the custody?
In Strand vs. Strand, the question of custody came up. The court granted visitation right to the father as the court considered that the child had been potentially adopted.

IV. Consumation of Marriage:
A marriage is said to be consummated when the parties have sexual intercourse. So, what is the status of the child born under AID? Well this is a question, which posed a great deal of challenge in front of the judges because with the help of technology the insemination is done in such a way that there is no physical intercourse. Thus technically and in reality too children can be born from husband and wife who never had intercourse. Thus though they have a child (through surrogacy) which is genetically theirs but the marriage is not consummated.
In India, this question will be answered according to the personal laws. Under the Parsi Marriage & Divorce Act, 1936, non-consummation within one year of marriage owing to wilful refusal of the respondent is a ground for divorce. On the same ground, one can sue for a decree of annulment of marriage under the Special Marriage Act, 1954. Under the Hindu Marriage Act, 1955, only the wife can seek annulment of marriage on non- consummation of marriage due to the impotency of the husband .But it is more complex in the Muslim Law as therein, consummation is presumed in the presence of a valid retirement. Thus, for observation of iddat, confirmation of dower, right to maintenance during iddat, establishment of paternity, valid retirement has the same effect as the consummation of marriage.
But in case of a triple divorced couple to remarry, prohibition to marry daughter of wife, option of puberty to lapse, actual consequence which obtain in Muslim law after presumed and actual consummation of the marriage the status of practice of AID remains speculative. Thus, personal laws are so varied and complex that it’s better if law grants AID status of constructive consummation.


As the draft Bill has not yet been passed the clinics that provide ART facilities take recourse to the guidelines. They make the surrogate mother sign a contract with the childless couple. But the legality of the contract is questionable. The rights of surrogate mother are also unclear. The real problem arises after the birth of the baby. Foreigners are unable to get legal assistance to take their child back to their home country. The recent case where the German couple had to go to the Supreme Court to take their babies back to Germany because the German law doesn’t recognize surrogacy and the Indian Govt. refused to give the babies Indian Passport. Justice. A. K. Ganguly directed the Govt. of India to help the German couple to take back their twins.

In the case of Baby Manji Yamuda vs. Union of India , the biological parents Dr. Yuki Yamuda and Dr. Ikufuni Yamuda came to India in 2007. They chose a surrogate mother in Gujarat and entered into surrogacy agreement. There was some matrimonial discord between the parents. The child was born on 25th of July 2008 and was moved to Jaipur. In the meantime, the father went back as his visa expired. The grandmother came back from Japan and claimed the child. An NGO filed a habeas Corpus petition for the child and claimed that as there is no law governing surrogacy in India, there was a money making racket going on. The Supreme Court declared,” commission constituted under CPCRA (Commission for Protection of Child Rights Act), 2005 has right to enquire into complaints or take suo motto notice relating to violation of child rights and development of children and provide relief in such matters.” The court also went on to define different types of surrogacy. The court finally directed the Solicitor-General to help the grandmother to get a passport for the child and extend her visa.
The issue of surrogacy is afflicted with numerous moral and ethical questions, e.g. (a.) is it morally right for a woman to offer herself for a fee, procreate and then sell the child? (b.) Is it correct to use surrogacy for household needs of married woman? (c.) Will it not lead to subjugation and exploitation of women? Another area of concern in the use of ARTs is for the disability and women’s movement. This is around the narrowing of choices for couples in the name of expanding choices. Gender, disability and infertility are social constructs. Yet, the Pre-conception and Pre-natal Diagnostic Techniques (regulation and prevention of misuse) Act gives parents the absolute right to abort a disabled foetus. The use of preimplantational genetic diagnosis in ART gives the option to eliminate disability without defining any limits to this option. Thus, the selective exclusion of the disabled and of girls has become possible through ART.
Though surrogacy is not bad per se but it’s throwing new challenges everyday even though it’s an old practice. The Hindu mythology offers an instance of surrogacy in Bhagwatpurana where the embryo from Devaki’s womb was transferred to Yogmaya’s womb who finally delivered the child. Having children to maintain the family continuity is everyman’s desire. So surrogacy is a great social need.
Under these circumstances, it’s essential for India to formulate a policy and law looking at surrogacy through the lens of individual rights and freedom.
In another case Jan Balaz v. Union of India, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district. The court observed: "We are primarily concerned with the rights of two newborn, innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance." The court considered the surrogacy laws of countries like Ukraine, Japan, and the United States.
Because India does not offer dual citizenship, the children will have to convert to Overseas Citizenship of India if they also hold non-Indian citizenship.
Balaz, the petitioner, submitted before the Supreme Court that he shall be submitting his passports before the Indian Consulate in Berlin. He also agreed that a NGO in Germany shall respond back to India on the status of the children and their welfare. The Union of India responded that India shall make all attempts to have the children sent to Germany. German authorities have also agreed to reconsider the case if approached by the Indian authorities.
In May 2010, the Balaz twins were provided the exit and entry documents that allowed them to leave India for Germany. The parents agreed to adopt them in Germany according to German rules.

Surrogacy has turned into a baffling legal quagmire and different people have different views. Each country is dealing according to its own socio-legal situation and the Indian courts are still grappling with the situation.

I. United States of America:
In US, different states have different legislation. In Arizona, North Dakota and Utah the legislature has taken a blanket approach deeming all surrogacy contracts to be void and unenforceable. In Kentucky, Louisiana, Nebraska and Washington only those surrogacy contracts are void which compensate the surrogate mother. In Florida, New Hampshire and Virginia its legal and enforceable but commercial surrogacy is prohibited (surrogate mother has the right to rescind the contract).

Judicial response in the United States is the best illustrated in the case In re Baby M . In this case, the couple entered into an agreement with the surrogate mother whereby she had to carry the child and then surrender the custody of the child in return for 10 thousand dollars plus medical expenses. After delivery, she refused to give up the child. The New Jersey Supreme Court (the state had no surrogacy laws then) held the contract to be unethical and unenforceable. The court refused to extend the protection of right to privacy and right to procreation to such agreements holding that custody, care, companionship and nurturing are not parts of the right to procreation.

Lastly the court held it to be violative of the public policy as the contract was involuntary due to the irrevocable commitment of the mother before she knew the strength of her bond with the child.
In contrast, in Johnson vs. Calvert , the California Supreme Court broke new grounds. The court extended constitutional protection to surrogacy contracts and validated them on touchstone of public policy considerations. The court said,” surrogacy contracts involved free informed and rational choice by the women.” The court held that the ethical issues of exploitation and commodification have to be decided by the legislature. The court struck a resounding note on freedom to contract and economic independence of the women. To determine the natural mother the court propounded the intention test i.e. the surrogate mother would not have given birth to the child but for the intention on the part of the genetic mother and thus the surrogate mother is just a facilitator in the act of procreation by giving voluntary consent. The genetic parents are the prime movers of the procreation process. Thus we can see that slowly the courts changed their view and were not only in favour of surrogacy but also spoke in favour of individual freedom.

II. United Kingdom
Surrogacy is not illegal in the UK but it is restricted by various legal rules. For example, it is a criminal offence to advertise that you are looking for a surrogate, or is willing to act as a surrogate. It is also an offence to broker a surrogacy arrangement on a commercial basis. UK does not fall foul of these laws because it operates on a not-for-profit basis.

Surrogacy agreements are also unenforceable in UK courts; this means that it is not possible to enter into a legally binding surrogacy agreement in the UK. The family courts have in practice proved sympathetic to intended parents applying to uphold a surrogacy arrangement, but they have a wide discretion to act in the best interests of the child, which means there are no guarantees. The Surrogacy Arrangement Act, 1985 declares initiation and involvement in commercial surrogacy agreements to be criminal offence.

The Human Fertilization & Embryology Act, 1990 makes surrogacy agreements unenforceable. So under English law, surrogacy is legal only if it involves payment of expenses reasonably incurred by the surrogate mother. It’s interesting to note that the contract is not binding on either parties. After six weeks, the genetic parents can apply for a Parental Order from the court under sec. 30 of the HFE Act, 1990 that gives them full and permanent right over the child. Thus in UK too though surrogacy contracts are not binding the tilt of the court is in favour of the intended parents who hire surrogate mothers to get a child.

There is no law governing surrogacy in India. There is only 126-page document regulating the technologies used. The India Council of Medical Research (ICMR) issued National Guidelines for Accreditation, Supervision and Regulation of RT clinics in India in 2005, but the guidelines are legally non-binding. On 5th of August, 2009 the Law Commission of India submitted the 228th report titled “Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy” to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India. The report expressed the view of the Law Commission on the Indian Counsel for Medical Research Guidelines 2005 on Surrogacy, the draft Assisted Reproductive Technology (Regulation) Bill and Rules.


The concept of surrogacy is an emotional issue for many but the legal facets are huge too. Non-intervention of law in this knotty issue will be a regressive step at a time when law is set to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. But all said and done the some issues will always remain. The freedom of the mother, the rights of the child, the controversy if the mother wants to abort the child even though is not her own. The Indian legislature can’t close its eyes on this important issue and should come up with a holistic law giving maximum freedom to the contracting parties. In conclusion I would to like to suggest my recommendation as follows:

* There should be legislation directly on the subject of surrogacy arrangement involving all the three parties i.e. the surrogate mother, the commissioning parents and the child.

* There is a need of right-based legal framework for the surrogate mothers, as far as the ICMR guidelines are not enough

* A clearly defined law needs to be drafted immediately which will pronounce in detail the Indian government‘s stand on surrogacy; so that discrete activity leading to exploitation of the surrogate mother can be stopped.

* Although it is not a crime to bear a child for another, and then relinquish it for adoption, it is not regulated by law and may raise a number of confusions.

* It has to be regulated whether paying the mother a fee for adoption beyond medical expenses is a crime (like in some countries) or not. In case it is recognized as crime and one pays extra charges then it should prevent the adoption from being approved.

* There should be a substantial regulation designed to protect the interests of the child

* Legal recognition of termination and transfer of parenting rights


* Gaps in Surrogacy Bill- by Aarti Dhar, page no. 09,The Hindu (English daily), New Delhi Edition, dated-october27th,2013





* India today- monthly magazine-volume XXXVIII, number-35.






[ 1 ]. Surrogacy from a feminist perspective‘ by Malini Karkal, published in Indian Journal of Medical Science (IJME), Oct.- Dec. 1997 – 5(4), link; http//www.
[ 2 ]. The Assisted Reproductive Technologies (Regulation) Bill-2010, Indian Council of Medical Research (ICMR), Ministry of Health &Family Welfare, Govt. of India, pg. 4
[ 3 ].
[ 4 ]. American Law Reports, validity and constructs of surrogate parenting Agreement, 77 ALR 4th 70. (1989)
[ 5 ]. According to WHO Genomics Resource Center;
[ 6 ].
[ 7 ]. Ibid
[ 8 ].
[ 9 ].
[ 10 ].
[ 11 ]. Ghai A, Johri R. Prenatal diagnosis: Where do we draw the line? Indian Journal of Gender Studies 2008 May-Aug; 15(2): 291-316.
[ 12 ]. 1948) 78 N.Y.S 2d 390
[ 13 ]. (1963) 242 N.Y.S 2d 406
[ 14 ]. (1967) 62 Cal.Rep. 462
[ 15 ]. (1948) 78 N.Y.S 2d 390
[ 16 ]. Sec 32(a) of the Parsi Marriage and divorce Act 1936
[ 17 ]. sec 25 (1) of the Special Marriage Act 1954
[ 18 ]. Sec 12(1)(a) of the Hindu Marriage Act 1955
[ 19 ]. AIR 2009 SC 84
[ 20 ]. Ghai A, Johri R. Prenatal diagnosis: Where do we draw the line? Indian Journal of Gender Studies 2008 May-Aug; 15(2): 291-316.
[ 21 ]. AIR2010Guj21
[ 22 ]. 537 A.2d 1227 1988
[ 23 ]. 5 Cal. 4th 84 1993
[ 24 ]. Surrogacy Parenting Associates V commonwealth ofKentucky, 704 S.W.2d 209 (1986)

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