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REGULATORY

FRAMEWORK ON
SURROGACY

Combined study by:


Priyanka Thakur (01216503813)
Shrey Kapoor (02416503813)
Section B
BA LLB
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INTRODUCTION
Surrogacy is a process in which one woman carries and gives birth to a baby and gives it
to another couple to raise. There are two types of surrogacy: traditional surrogacy and
gestational surrogacy. In traditional surrogacy the surrogates own eggs are used while in
gestational surrogacy the surrogate is not related to the baby. The concept of surrogacy is
a result of the evolution in science and technology but since it is a new as well as
controversial concept, it has not been accepted by many countries in the world. India is
one of the surrogacy friendly nations. There are no legislations or rigid legal provisions
governing surrogacy agreements in India, however, a surrogacy Bill is before Indian
parliament. This research report is largely based upon finding the real status of surrogacy
in India, its laws etc. Chapter 1 deals with, the socio economic, medical and ethical
concerns that surround surrogacy. An extensive research has been carried out on such
concerns that a poor woman faces while opting for becoming a surrogate woman. In most
of the ART clinics all over India, the surrogate mothers come from economically poor
background which leads to their exploitation by their own families and also by the
doctors at these clinics. The ART rules and guidelines provide some of the guidelines
regarding the same however they fail to suffice. Chapter 2 will tell you about everything
about commercial surrogacy and how it is practiced in India. According to the guidelines
provided by the ICMR, clients enter into a surrogacy contract with a surrogate mother
and her husband, if she happens to be married. The contract sets out the responsibilities
and rights of both parties, offering legal protection for clients and surrogates under Indian
contract law. The contract also specifies payment i.e. consideration, to the surrogate
mother and the stages at which she will be paid. By signing the contract the surrogate
signs away parental rights to the baby she carries. 1 Next, we have also compared the
surrogacy laws in India with respect to various other nations and noted the key points of
difference between them on Chapter 3. Surrogacy isnt legal in most countries of the
world and in some countries, commercial surrogacy is considered a criminal offence. Many
countries allow altruistic surrogacy but do not prohibit commercial surrogacy. Some countries
that permit altruistic surrogacy include Australia, Canada, Isarael, the Netherlands, the UK , and
some states in the USA. In Israel, surrogates are restricted to single women, widows and
divorcees and surrogacy agreements must be approved by the state. In the USA, some states are

Why India for Surrogate ?" Delhi IVF & Fertility Research Centre, India.
CNET INFOSYSTEM. Web. 27 Sept. 2014.
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more open to surrogacy issues than others. States like New York and the bible-belt Mid West
states are restrictive towards it while states like California and Maryland are more liberal and
surrogate friendly.The group also carried out a field study at a fertility clinic in South Delhi

and found out some very interesting facts and a survey was also done among a large
number of people in Delhi to find out about their knowledge on the subject. All this has
been briefly described in Chapter 4 and 5 respectively.

SCOPE: The scope of the study is to cover the various issues that have been
overlooked while enforcing the ART bill 2005 and although some of the issues have been
considered in the new ART bill 2010 but the bill is still pending in the parliament. This is
the state even after four years of formulation of the bill in 2010. This research report aim
at highlighting the key issues concerned with the present regulatory framework related to
surrogacy in India.

Chapter1: Socio-economic, Medical


and Ethical aspects of surrogacy
Under this topic we shall deal with the various social taboos and the moral issues that
surround surrogacy with respect to India. India is a vast country with a multi religious
population which comes with its own sets of rules and regulations and beliefs. Also with
the many religions, the ide2a of morality also changes. The meanings of morals and
ethics do overlap. Broadly speaking, morals are individual principles of right and wrong,
and a system of ethics deals with sets of those principles.

Socio economic Concerns


Owing to the recent developments in the medical sector, it is now possible for an infertile
couples to resolve to other methods such as IVF or surrogacy to fulfil their dream of
having children .However because science is a necessary evil, the process of surrogacy is
not all that simple, there are many important aspects that one needs to keep in mind
before taking the decision of going on with it. For example if we take the socio economic
aspects of surrogacy in account, in India, most of the surrogate mothers come from
3

economically poor backgrounds and often their bodies are just used by their family
members are money earning machines. Her disadvantaged socio-economic background
and motivation based on household financial hardships add to the risk of exploitation2.The
position of surrogacy in India besides being inadequate, is also inconsistent and
ambiguous. The surrogate mothers role as a womb for rent is apparent as the ART Bill
passed in 2005 allows monetary compensation to be paid to the surrogate3.There is
unanimous consensus and concern among researchers about the risks of exploitation due
to the differences in socio-economic status between surrogate mothers and intended
parents. This decision relating to the amount of compensation to be paid for the
surrogacy is left between commissioning parents and the surrogate mother. Given that the
surrogate comes from a poor background, the condition of the resource less uneducated
woman is pitiable at the hands of the powerful and exploitative people above her, so she
cannot be expected to be vocal about her wants or bargain about her compensation
properly. A practising IVF doctor in Mumbai, Aniruddha Malpani insists that exploitation
is a norm, saying doctors exploit their patients; lawyers exploit their clients, everybody
exploits every other person, so what?4. Another doctor, Nayna Patel of the Akanksha
Fertility clinic, Anand, says that since women choose to become surrogates, and it is not
forced on them, it can-not be termed exploitation. Patel insists that this is a win-win
situation where both parties (GMs and intended/social parents) stand to gain. These
women are found to be on the edge of poverty either because they are in debt or
homeless, none of them are educated beyond high school. The surrogate gets the much
needed money and the couples return home with babies. However, the appropriateness
and the extent of informed choice is questionable when such decisions are taken under
the pressures of domestic economic crisis. The well being of the baby takes precedence
over her health and the pregnant woman becomes the property of the medical
practitioners and the intended parents and subject t their monitoring and control.
Moreover after one surrogacy, women become identified with their magic wombs that are
2

Bardale, Rajesh (2009): Made in India: Ethics of Out-sourcing Surrogate


Motherhood to India, Indian Journal of Medical Ethics, 1(1): 56-57
3

Section 34(3) of the ART Bill- Not withstanding anything contained in sub section (2)
of this section and subject to the surrogacy arrangement, the surrogate mother may
also receive monetary compensation from the couple or individual, as the case may
be, for agreeing to act as such surrogate.
4
Saravanan, Sheela, Helen Johnson, Gavin Turrell and Jenny Fraser (2009): Social
Roles and Birthing Practices of Traditional Birth Attendants in India with Reference to
Other Developing Countries, Asian Journal of Womens Studies,15(4): 57-89

capable of reducing the poverty of the family.5 Thus even though she has her rights in the
rule book, the ground reality is a far cry from the ideal perception.

The emotional and medical factor:


Potential surrogate mothers are required to go through a series of medical tests and
procedures to ensure that their bodies are fit to carry and give birth to a healthy child. The
specific medical procedures used will vary from case to case, but will help confirm that
the surrogate's reproductive system is in good functioning condition. It's important to
keep in mind that many couples decide to use a surrogate mother because they have
experienced the disappointment of losing a baby, or the frustration of not being able to
conceive in the first place. Agencies that connect potential surrogates with couples who
want to have children have a responsibility to both parties to ensure that the pregnant
mother is healthy for the sake of all involved.
Secondly, No matter how professionally a surrogate mother views her arrangement with
the couple for whom she is carrying a child, emotional attachments to the child are
always a risk. A surrogate must be emotionally prepared to deal with these feelings while
honouring her contract.
Lastly, there are risks involved for both parties in a surrogacy contract. The surrogate
mother runs the risk of experiencing complications related to pregnancy that may have a
negative effect on her health. The expectant couple runs the risk of disappointment if the
pregnancy fails or if the child is born with a defect. Just like any pregnancy, there is no
guarantee of a happy, healthy outcome.6

What must be done?


Voluntary acceptance of surrogacy requires that women have self respect and social
status born out of equal opportunities, adequate wages, and freedom of decision making.
It should not be an alternate employment generation scheme. It would be a mistake to
evolve legislation on the basis of systemic weaknesses and failures, or for lawmakers to
assume that volunteerism under conditions of poverty is genuine. In the present context,
5
6

Campbell, Nicole. "Surrogate Mother Pros & Cons." LIVESTRONG.COM. LIVESTRONG.COM,


16 Aug. 2013. Web.

surrogacy is rarely voluntary. Hence, one needs to know what payments have been made
for, and to articulate the difference between commercial and voluntary
surrogacy7.According to Sangeetha Madhu, Clinical psychologist in the Chennai Institute
for Learning and Development (CHILD), Chennai, In India, mental health research
regarding surrogacy is at a very nascent stage. Western literature suggests that surrogate
mothers may exhibit symptoms of post-natal depression, though few may experience
feelings of self-worth. Hence it is imperative that the surrogate and biological parents
maintain a cordial relationship and transparency for transition in the best interests of the
unborn child. Providing pre- and post-natal counselling to both the surrogate mother and
the biological parents, and providing information to the child at an appropriate age may
be incorporated with the legal aspects of surrogacy to help mothers (surrogate and
biological) who undergo trauma. The ART bill prescribes a legally enforceable
surrogacy agreement between the parties in which the State plays no role after preparing
the rules and the forms for this. By providing a vague and open template for rules and
contracts for what is, in fact, a private undertaking, it leaves huge gaps for the
commissioning parents and providers to take advantage of the surrogate mother who is
given no legal help by the State. The commissioning couple has the right to demand
abortion and pregnancy reduction in congenital anomalies (not specified) and multiple
pregnancies, if they so desire according to the surrogacy contract. This condition
however is not stated in the contract between the provider and the surrogate. Hence,
nobody, not even the clinic, has any responsibility towards any risks (even death) to the
surrogate mother arising out of these interventions.8 Though punishment is envisaged
(without any specification) for the commissioning couple if they refuse to accept the
baby, in the case of foreigners there is no compulsion for them to be in india at or before
birth as they can appoint a guardian for the infant. If they refuse to accept the baby, this
guardian will be held legally responsible. Thus the legislation makes light of the
punishment of the real culprits and makes no effort to hold them responsible.

7
8

Qadeer, Imrana. 'The ART Of Marketing Babies.'. (2010): n. pag. Print.


ibid

Ethical concerns
There are many reasons why surrogacy is better than the process of adoption. Some of
those could be that sometimes the prospective parents discover their incompetency to
conceive children too late. Such couples do not stand a chance with adoption agencies
and secondly while opting for surrogacy; the intended parents get a chance to be
genetically related to their child. There are numerous medical and legal issues that are
associated with the concept of surrogacy. These issues tend to be complex on many
levels, with one key issue being the legality of the surrogacy process, which varies a
great deal from one country to another.
While there are many religious organizations that frown upon the process of surrogacy,
this concept is oftentimes the only option for some individuals to start a family. It is for
this reason that some highly controversial and key ethical issues be addressed.
Attachment with the Gestational Mother In a surrogate situation, the gestational

mother is the woman who carries the baby to term. This can be a very taxing process both
physically and emotionally and unique in that after the surrogate mother physically
carries the baby throughout the pregnancy, she needs to physically and emotionally
detach herself from the child once it is born.

Involvement with the Gestational Mother Because the gestational mother will

not likely be the child's primary caretaker, there could be legal questions that arise in
terms of what if any involvement she will have with the child once born.

Identity of the Child There are also ethical considerations that are brought to

mind in terms of informing the child of his or her surrogate mother, as doing so may have
an effect on the child's self-identity.9
Actually, the entire idea of a child created in a test tube and carried by an unrelated
woman is enough to drive fear into the hearts of many while questioning the ethics of
surrogacy. The reason behind this is that so far the practical scenario is concerned, it is
clear like crystal that reproductive scientists are able to accurately tell if a created embryo
might carry a specific disease, or even to tell it's gender. Soon we may also have the
9

Modernfamilysurrogacy.com,. 'Surrogacy Ethical Surrogacy, Modern Family


Surrogacy'. N. p., 2014. Web. 21 Jun. 2014.

technology to determine hair and eye color, or even skills or hobbies of our potential
children. Even we may see in our lifetimes that scientists are able to successfully clone a
human being. Albeit, it can be mentioned that once organ transplant was considered
science fiction but now it is commonplace, so commonplace that one is asked to
designate on their drivers license if they would like to donate their organs at death. Do
we examine the ethics of those decisions?10
Moreover Surrogacy in India is highly stigmatised. Many surrogates are spending the
term of their pregnancy in surrogate hostels (e.g. in Anand, a town in the western state of
Gujarat), away from their families and communities. They might want to keep what they
do secret, because reproduction is regarded as acceptable only within marriage; taken
outside the domestic sphere of family, childbearing for economic achievement may be
seen as dirty work, baby-selling or womb-renting.11

Chapter2: Commercial Surrogacy in


India
Commercial surrogacy is the type of surrogacy in which an individual or a couple pays a
fee or consideration to a woman in exchange for her carrying and delivering the baby.
In this chapter, we have described the procedure for surrogacy in India, how to acquire
the birth certificate of the child, the citizenship and passport applications for the newborn
and for how much time a foreign couple is required to stay in India after the baby is
born .We have also pointed out the various loopholes that are present under the surrogacy
laws that are currently being followed. In India , commercial surrogacy was legalized in
2002.Since then, people from around the world have sought treatment for IVF (In Vitro
Fertilization), egg donation and also, surrogacy here.. All the clinics that deal with
surrogacy closely follow the Guidelines for Accreditation, Supervision and Regulation of
ART Clinics. These guidelines were set out by the Indian Council Of Medical Research.
10

Information on Surrogacy. 2008. Ethics of Surrogacy : Science Babies. [online]


Available at : http://www.information-on-surrogacy.com/ethics-of-surrogacy.html
[Accessed Date :20th june 2011].
11

Mukherjee Sugato, Legal and Ethical Issues Of Commercial Surrogacy.

Even the proposed laws for surrogacy in India are based on these Guidelines provided by
the ICMR.

PROCEDURE OF SURROGACY IN INDIA:


If a person or a couple decides to opt for surrogacy in India, there is a prescribed method
by which they must proceed. Here is a list of a few very important points that such people
must keep on mind while proceeding with surrogacy. For eg. the names that would be
present on the birth certificate of the baby, how to obtain the citizenship of the baby for
another country if the parent is a foreign national and for how long are you expected to
stay in India after the baby is born to complete all the formalities.

Birth certificate

In the case of a single parent only the genetic mother or father can be on the

surrogacy agreement and the babys birth certificate.


For couples both parents names appear on the birth certificate provided one

parent has a genetic link with the child.


The Municipal Council of the state where surrogacy happens issues the birth
certificate of the baby.

DNA testing
International clients cannot use both an egg donor and a sperm donor, or donor embryos
with surrogacy. As a genetic link between baby and at least one parent is required by the
embassies of most countries to grant citizenship and a passport to the baby. A genetic link
is established through DNA testing of one parent and baby. This is a mandatory
requirement for citizens of most countries.

Citizenship and passport applications for the new born

Babies born through surrogacy agreements in India are born stateless. This means that
they are not given Indian citizenship by virtue of the fact they were born in India. Each
countrys embassy has different requirements for granting citizenship to babies born
through commercial surrogacy in India. All embassies require, at least, a signed copy of
the surrogacy contract, babys birth certificate, parents birth certificates, pregnancy
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medical records, a signed statement by the surrogate mother and her husband waiving
parental rights etc.

Duration of stay in India after birth of baby


The amount of time you will need to spend in the country to organize paperwork for the
baby to go home varies from country to country. If organised and proactive, US Citizens
generally leave within 10-12 days; Australian citizens 12 days to three weeks, and other
countries approximately two to three weeks. Clients from UK must be prepared for a 12
week stay in India after the birth of the baby as the embassy takes a longer time to
process passports in such cases.12

LOOPHOLES IN COMMERCIAL
SURROGACY IN INDIA
The legal aspects surrounding surrogacy are unsettled along with being complex and
tedious. In most countries around the world, the woman giving birth to a child is
considered to be the Child's legal mother. However, in some other countries, the Intended
Parents are recognized as the legal parents from birth by the virtue of the fact that the
Surrogate has contracted to give the birth of the Child for the commissioned Parents.
India is one such country that recognizes the Intended/ Commissioning Parent/s as the
legal parents. Many states now issue pre-birth orders through the courts placing the
name(s) of the intended parent(s) on the birth certificate from the start. In others the
possibility of surrogacy is either not recognized (all contracts specifying different legal
parents are void), or is prohibited.This leaves room for a lot of loopholes, especially with
regard to the interests of the surrogate mother.
International Surrogacy involves bilateral issues, where the laws of both the nations have
to be at par/uniformity else the concerns and interests of parties involved will remain
unresolved and thus, giving due regard to the concerns and in order to prevent the
commercialization of the Human Reproductive system, exploitation of women and the
commodification of Children, the law commission has submitted its report with the
relevant suggestion. The Law Commission of India has submitted the 228th Report on
12

Advocate InderBir Singh (Delhi High Court)

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NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE


TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES
TO A SURROGACY.Some of the observations made by the commission are as follows:
(a)

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 for commercial purposes.

(b)

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.

(c)

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.

(d)

The birth certificate of the surrogate child should contain the name(s) of the
commissioning parent(s) only.

(e)

Right to privacy of donor as well as surrogate mother should be protected.

(f)

Sex-selective surrogacy should be prohibited.


The Report has come largely in support of the Surrogacy in India, highlighting a proper
way of operating surrogacy in Indian conditions. Exploitation of the women through
surrogacy is another worrying factor, which the law has to address. The Law Commission
has strongly recommended against Commercial Surrogacy. However, this is a great step
forward to the present situation.13
Thus we see that the Surrogacy process comes with a lot of cons, including the problems
that the surrogate mothers go through.

Chapter 3: Legal comparison between different


countries.
13

228th Law Commission Report

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Surrogacy is a new concept with moral values being related to carrying out of its
procedure. As a result, not every nation has accepted it with open arms. Following is a ist
of a few countries and what is the position of surrogacy therein:

India
Commercial surrogacy has been legalized in India since 2002. It is one of the few
countries in the world where it is legal. Since the Supreme Court judgment in 2008
legalizing surrogacy, India has emerged as a hot spot for couples from all over the world
for international surrogacy and surrogacy related tourism. This is mainly because of the
relatively lower costs making the procedure more cost effective than in anywhere else in
the world.
Surrogacy in India is largely unregulated, though the Indian Council of Medical Research
is moving toward greater control, including the registration of clinics, says Hari
Ramasubramanian, a lawyer who founded the Indian Surrogacy Law Centre. Around
2,000 foreign babies are born to Indian surrogates every year14. International surrogacy
services offered in over 3,000 clinics in India generate more than $400 million per year
for the economy, according to a recent study.
There are no rigid laws or legal provisions in India to control surrogacy. Till date, only
guidelines of the Indian Council of Medical Research (ICMR) exist for accreditation,
supervision and regulation of Artificial Reproductive Technology (ART) clinics in India.
These are still simply only guidelines and surrogacy in India remains largely unregulated.
The codes of practice as per the ICMR guidelines are as follows:

The ART Clinic must not be a party to any commercial element in donor

programmes or in gestational surrogacy.


No ART procedure shall be done without the spouses consent.
Sex selection at any stage ie. both before and after fertilization of the embryos of
any particular sex should not be permitted except to avoid the risk of transmission
of a genetic abnormality assessed through genetic testing of biological parents or
through pre-implantation genetic diagnosis (PGD)

14

Jennifer, Kirby. "These Two Americans Want Babies Through Indian Surrogates. It's Not Been
Easy." New Republic. Masthead, 10 Dec. 2013. Web.

12

Use of sperm donated by a relative or of a known friend of either the wife or the
husband should not be permitted. It will be the responsibility of the ART clinic to

obtain sperm from the appropriate banks.


The 228th report by the Law Commission Of India has recommended accepting
semen only from Semen Bank and not from the individual. Hence it has also been
recommended that Semen Bank should be an independent organization, if set up

an ART clinic it must operate as a separate identity.


No relative or a person known to the couple may act as surrogate.
Surrogacy by assisted conception should normally be considered only for patients
for whom it would be physically or medically impossible/undesirable to carry a

baby to term.
The genetic (Biological) parents must adopt a child born through surrogacy
After a specific consent, the embryos may be stored for five years and stored
embryos may be used either for other couple or for research after taking the

consent of the couple to whom the embryo belongs


The sale or transfer of human embryos or any part thereof, or of gametes in any
form and in way that is directly (with proper documents)or indirectly (eg. By

smuggling) to any party outside the country must be prohibited.


Human cloning for delivering replicas must be banned.
A child born through ART should be presumed to be the legitimate child to the
couple, born within wedlock and all the attendant rights of parentage, support and

inheritance
Though there is no legal bar on an unmarried or single woman going for AID
(Artificial insemination with donor), however it is universally recommended that
AID should be performed only on married woman and that, too, with the written

consent of her husband


There is an urgent need to have infertility treated like any other disease the
expense of dealing which by authorised ART clinics should be reimbursable e.g.
by the Government or other employer or by the health insurance company, but
for one child only15

In addition to these, there is Law Commission Report No. 228 of the year 2009 which
recommended legalizing altruistic or non-commercial surrogacy arrangements in India in
order to protect the surrogate mother from exploitation, as opposed to the ART Bill
There is a draft Assisted Reproductive Technology (Regulation) Bill, 2013 (ART Bill)
pending before the parliament which is under deliberation and discussion. However,
15

Singh, Madhu P. "SURROGACY AND SURROGACY LAWS IN INDIA."Wscpedia.org. Web.

13

some of the pertinent issues remain unaddressed in the Bill, thereby raising questions on
its large scale practice.

There is no stipulation on the number of times an intending couple or individual


can make use of surrogacy.

There is no maximum age limit prescribed under the Bill for the couples or
individual in order to be eligible to make use of ART though the minimum age
limit is prescribed as 21 years.

There is no screening of the socio-economic/family background of the couples.


Neither are there any eligibility criteria for an individual to be a fit parent to have
child via surrogacy. There is no appointed government body to monitor the issue.

It prohibits sex-selective surrogacy in consonance with the Pre-conception and


Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act. But during
the pendency of the Bill there is no means to check if the clinics are complying
with the same; further there is no effective body to oversee the conduct and
operation of clinics.

There have been recent legal developments that may hinder Indias surrogacy tourism.
The Indian Ministry of Home Affairs ruled in July 2012 that foreigners needed medical,
not tourist, visas to pursue surrogacy. These visas were to be limited to straight couples
coming from countries that permit surrogacy and have been married at least two years.
The rule change meant that single, gay and unmarried couples as well as those
circumventing the laws to have children would be banned from availing the services in
India.
Despite a series of legal instruments seeking to regulate surrogacy, it is evident that the
legal position in India on the issue, besides being inadequate, is also inconsistent and
ambiguous. It therefore needs clarity.
Two case studies were also made regarding the condition of surrogacy and what is the
general judgment procedure in such case. The full report of the judgment has been
attached as annexure to the report. The summary of the two cases are as follows:

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CASE 1: JAN BALAZ V. ANAND MUNICIPALITY AND 6 ORS


In Jan Balaz v Anand Municipality and Ors, 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.[12]
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.

CASE 2: AMY ANTOINETTE MCGREGOR AND ANR VS DIRECTORATE OF


FAMILY WELFARE GOVT OF NCT
According to the petition, the woman petitioner cannot conceive due to a medical
problem. Therefore, the couple wanted to have two children of different sex through the
surrogacy procedure.
Before moving the Court, the couple had written to the Directorate of Family Welfare of
the Delhi Government seeking a no-objection for the sex determination test. They had
also sought exemption from the relevant provisions of the Act for all the couples who
wanted to have a balanced family through surrogacy.
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However, they did not get any response from the Directorate; therefore, they moved the
Court, the petition said.
But the Directorate informed the Court that it had rejected the request through a letter
stating that the Act does not permit sex selection on the pretext of family balancing as it
will result in restricting the scope and meaning of the Act.
The Delhi High Court has dismissed a petition by an Australian couple seeking waiver of
the applicability of the anti-sex determination law for those couples who want to have a
balanced family with a male and a female child through surrogate mothers.
Dismissing the petition by Amy Antoinette McGregor and her husband, a Division Bench
of Justice N. V. Ramana and Justice Manmohan said: The challenge to the provisions of
The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994, on the ground of hostile discrimination and unreasonable classification is,
therefore, misconceived. We need say no more. The writ petition is, accordingly,
dismissed.
The couple had moved the Court arguing through their counsel Karan S. Thakur and
Vikrant Goyal that the provisions of the Act could not be made applicable to them. They
sought waiving off of the same submitting that such couples could not be treated at par
with those who chose the sex of foetus in order to have a male child only leading to a
skewed sex ratio.

Canada
Despite surrogacy being legal in Canada, compensated surrogacy (where fee or profit is paid
to the surrogate mother), whether in traditional or gestational arrangement is strictly
prohibited by law. The law governing surrogacy in Canada is the Third Party Reproductive
Technology legislation which is now Bill C-6. It was passed on March 3rd 2004 and came into
force on May 5th 2004. It prescribes that all payments in excess of a surrogate mothers out of
pocket expenses are considered to be criminal. It is highly recommended to consult a lawyer
or a legal expert to obtain any additional information on what kinds of expenses are
considered to be legal during the surrogacy arrangements.
The Assisted Human Reproduction Technology Act, which was passed in 2004, stipulates
that any woman, who carries a baby for an infertile couple by becoming a surrogate mother,
16

may be reimbursed for the expenses incurred during the pregnancy such as prenatal vitamins
and cost of travelling to the doctor and such. She has no right to get any kind of wage for her
carrying the baby16. If the Canadian intended parents are found paying the surrogate mothers
in cash and gifts, they are liable for a fine up to $500,000, or up to 10 years in jail. Still the
law is extremely vague and there are many ambiguities and a lot of confusion regarding what
kind of expenses are considered legal and which ones are not.

China
Gestational surrogacy in China is strictly prohibited by the New Chinese Ministry of Healths
regulation. This eliminates the possibility for people of older ages, or couples where the
woman has a damaged uterus or no uterus at all, to have children.
Gestational surrogacy enabled by human-assisted reproductive technology, triggers some
unavoidable social and ethical issues.

16

Surrogacy in Canada." Surrogacy 911.com. Web.


<http://www.surrogacy911.com/laws/canada.htm>.

17

It may be noted that China prohibited only the practice of gestational surrogacy and not any

United Kingdom

other form of test-tube babies. The reason behind the outlawing of this type of surrogacy is
that it involves a lot of complicated legal, ethical and moral problems. The ban in China was
Surrogacy in the UK is considered to be legal. The law prescribes that the surrogate mother
considered to be arbitrary and criticized by many of the medical experts. One of the reasons
is not to be paid any money other than the necessary reasonable expenses, unless
for this is that gestational surrogacy is an expensive process and all agreements involve a lot
authorized by the court. There is no exact definition pertaining to this term and the
of money which could lead to potentially chaotic situations. There is also the possibility of
participants involved in the arrangement may come to a mutual agreement as to the exact the
people using this process as a commercial practice to earn money.
amount these expenses would constitute. Any cost which the surrogate mother is given
during
and in theofresult
of her surrogacy
pregnancyfeel
are that
considered
to be reasonable
is
The supporters
gestational
the prohibitions
should beexpenses.
removed It
and
howevercouples
illegal in
the UK
give out
forofsurrogate
and
intended
infertile
should
be to
allowed
to advertisements
avail the services
surrogatemothers
mothers.
There
have
parents.
been
some provisions to place some minor restrictions but still keep the restricted option of
gestational surrogacy open as the complete prohibition of it will neither help any people and
After
thebedelivery
the reproductive
baby, the intended
father
wouldHowever,
automatically
acquireofequal
rights
nor
will
able to of
assist
science
research.
the director
Science
over the baby
along with
the surrogate
mother
if his
name
of about
the childs
birth
Education
Department
under
Ministry of
Health,
points
outappears
that only
10-15%
of
certificate.
If his suffer
name is
not any
written
the birth certificate,
then they
enter
into
a
Chinese
couples
from
sort on
of reproductive
dysfunction,
and both
out ofmay
these
only
10%
Parent
Responsibility
Agreement
them equal rights
over a the baby delivered by
are
really
in need of the
assistancewhich
of thegives
human-reproductive
technology.
the surrogate mother. After six weeks, the babys parents may apply for a Parental Order,
which would give them full and constant parental rights over the baby and the surrogate
mother would relinquish all her previous rights over the child.

Chapter 4: Survey
A survey was also conducted among people of various age groups currently living in Delhi.
These people were asked some questions regarding their basic knowledge on surrogacy. A
sample surrogacy form has also been attached as an appendix to this report. The results of
the survey are as follows:

92% of the people questioned were properly aware about the concept of surrogacy while the
rest werent.8% said that they knew just a little about the same.
18

Websites referred:
1. Why India for Surrogate ?" Delhi IVF & Fertility Research Centre, India. CNET
INFOSYSTEM. Web. 27 Sept. 2014.
2. Bardale, Rajesh (2009): Made in India: Ethics of Out-sourcing Surrogate
76% of Motherhood
the candidates
that Indian
it was the
parents
duty to Ethics,
provide1(1):
the 56-57
surrogate mother with
to felt
India,
Journal
of Medical
healthcare before and after the baby is born while 20% went with it depends on the
3. contract.
Saravanan, Sheela, Helen Johnson, Gavin Turrell and Jenny Fraser (2009):
Social Roles and Birthing Practices of Traditional Birth Attendants in
India with Reference to Other Developing Countries, Asian Journal of Womens
Studies,15(4): 57-89
4. Campbell, Nicole. "Surrogate Mother Pros & Cons." LIVESTRONG.COM.
LIVESTRONG.COM, 16 Aug. 2013. Web.
5. Modernfamilysurrogacy.com,. 'Surrogacy Ethical Surrogacy, Modern Family
Surrogacy'. N. p., 2014. Web. 21 Jun. 2014.
6. Information on Surrogacy. 2008. Ethics of Surrogacy : Science Babies. [online]
Available at : http://www.information-on-surrogacy.com/ethics-of-surrogacy.html
Should a perfectly healthy couple be allowed to opt for surrogacy, just because they
want Sugato,
to go through
theEthical
processIssues
of child-bearing?
7. don't
Mukherjee
Legal and
Of Commercial Surrogacy.
8. Jennifer, Kirby. "These Two Americans Want Babies Through Indian Surrogates.
It's Not Been Easy." New Republic. Masthead, 10 Dec. 2013. Web.
9. Singh, Madhu P. "SURROGACY AND SURROGACY LAWS IN
INDIA."Wscpedia.org. Web.
10. Surrogacy in Canada." Surrogacy 911.com. Web.
There was almost a perfect tie on the question on whether a couple should opt for surrogacy
<http://www.surrogacy911.com/laws/canada.htm>.
just because they donot want to go through the process of child bearing.
books
referred:
OnArticles/
the question
Should
selective embryo reduction - which means, if it is a multifetal
pregnancy, say triplets or quadruplets, abortion of one or more foetuses-be allowed?
responseRajesh
was: (2009): Made in India: Ethics of Out-sourcing Surrogate
theBardale,
Yes

Motherhood to India, Indian Journal of Medical Ethics, 1(1): 56-57


Mukherjee Sugato,
Legal and Ethical Issues Of Commercial Surrogacy
28%
Qadeer, Imrana. 'The ART Of Marketing Babies.'. (2010): n. pag. Print.

No

16%

Others:
Maybe,In some cases

56%

19

All (100%) the candidates said that parents should not be allowed to refuse to accept the
baby conceived through the surrogate mother in case it is born with any disorder.

The ART bill, 2005


The new Bill ART (Regulation) Bill and Rules, 2008

When asked, In your opinion, is opting for surrogacy moral? the responses were

Yes. No one should be denied the joy of parenthood. If one cant achieve it
naturally, surrogacy can come to their rescue.

91%

Yes. No one should undergo the hassles of pregnancy.

0%

No. What is child birth if the woman doesnt nurture it in her womb?

5%

Can't say

5%

When questioned about their views on surrogacy as a business in India :

ANNEXURE
SAMPLE QUESTIONNAIRE USED FOR SURVEY
Renting a womb sans a legitimate reason is just not right.

46%

I wont shun it. After all, it adds to the national income!

8%

COMMERCIAL SURROGACY IN INDIA

1) Name:
2) Age:
It is a commercial act and should be treated as any other business.

46%

20

On the issue of legalisation of surrogacy, 96% felt that it was the right step to take
while 4% voted against it.

3) Sex:
a) Male
Female
Yes b) 96%
4) Occupation:
5) Marital
No
4% Status:
a) Married
b) Divorced
c) Single
d) Other _________
6) If married, number of children:

Chapter 5: Field Trip


For the field trip, we visited the Delhi IVF Centre located in Bengali Market to find patients
who
to optof
forthe
theconcept
medical procedures
of both IVF and Surrogacy.
7) were
Are aiming
you aware
of surrogacy?

a) Yes
It was noted
that in the world of medical tourism, IVF was the more popular option to
b) No
c) A little

choose among the two procedures owing to the fact that most parents want a child that can
be borne out of the female partner in a couple (by either using the sperm of the male partner
who
reasons cannot
indulge
in proper
intercoursemother
or with the
8) for
In various
your opinion,
is it the
parents
duty penetrative
to providesexual
the surrogate

with
healthcare?
help of
a donor)
seeking for alternative ways to conceive and that the procedure of

a) Yes
b) No
accompanied
the duration
of pregnancy
c) Depends
on the
contract and childbirth or owing to the fact that one of the
Surrogacy was mainly opted for by couples who either wanted to avoid the hassles that

partner in the couple is incapable or inefficient to participate in the method of producing an

9) Should a perfectly healthy couple be allowed to opt for surrogacy, just


offspring.
because they don't want to go through the process of child-bearing?
a) Yes
India is b)
oneNo
of the booming centres of surrogacy as it is one of the few countries in the

world that allows commercial surrogacy within its territory. The fact that it is the worlds

10) most
Should
selective
embryo
reduction
means,
if it issues
is a multifetal
second
populous
territories
which
is plagued- which
with serious
poverty
elevates the

pregnancy, say triplets or quadruplets, abortion of one or more foetusesbe allowed?


into the a)
trade
with false promises sometimes to meet the growing demand of the trade. A
Yes
special mention
b) No goes to the hub of surrogacy in India: Anand in Gujarat also known as the
c) Maybe,
in some
milk capital
of the country
has cases
been housing an average of 25-30 surrogate mothers due to
number of women willing to act as surrogates for exchange of money and are also pushed

deliver babies for childless couples. Foreign nationals flock to India for getting a surrogate
baby due to the low cost value of the procedure and high success rates. For example, a

11) In your opinion, should only married couples be entitled to surrogacy?

normal a)
surrogacy
Yes procedure will cost around $70,000 in the US from the beginning till the

b) Noall the expenses including the cost of fulfilling the needs of the surrogate
end covering
mother during the duration of pregnancy. Also, the success rate for surrogacy in India is

12) Should the parents be allowed to refuse to accept the baby conceived
through the surrogate mother in case it is born with any disorder?
mother a)
in the
country.
Yes

quite high (40-50%) and attracts a lot of prospective childless couples to choose a surrogate

The
21 detail findings will be included in the survey while we take up an example of a single
case encountered by us during the field visit.
Name Mr. Omar Abdullah Omar

Country of Origin Yemen


Age 44

b) No
c) In some cases

Age of spouse 30

Purpose of Visit Travel and Tourist Visa

13) In your opinion, is opting for surrogacy moral?


a) travelled
Yes. Notoone
be denied
thea childless
joy of parenthood.
If oneofcant
Mr. Omar
Indiashould
after eleven
years of
marriage in search
a
achieve it naturally, surrogacy can come to their rescue.
surrogate mother. He learned about the prevalence of the procedure in India through a
b) Yes. No one should undergo the hassles of pregnancy.
Germanc)friend
hadisvisited
and succeeded
in his second
attempt
No.who
What
childIndia
birthfor
if the
thesame
woman
doesnt nurture
it in her
womb?
(Statistics on
Global Doctors Forum show that the average number of attempts required to
Cant say.
achieved)
successful
completion of the procedure is three in India). The friend shared his
experience with Mr. Omar and told him about the low cost of the entire process, from

14) India is a hub for cheap surrogate services. What is your opinion on
bearing
allmodern
the medical
of the surrogate mother to the Doctors fees which was
this
dayexpenses
business?
Renting a the
womb
sans mother
a legitimate
reason
is just out
notofright.
$20,000.a)Furthermore,
surrogate
was to be
paid $7,000
the entire cost.
b) I wont shun it. After all, it adds to the national income!
c) It is a commercial act and should be treated as any other business.

Upon interviewing Mr. Omar and questioning him on various aspects on his decisions to
choose
as theaffordability
destination, we
foundwould
out thatyou
theselike
were
reasons to
15) India
Keeping
aside,
tothe
optprimary
for surrogacy

steer clear of Pregnancy?

This is Mr.
Omars first attempt and he chose India due to the specialized treatment offered
a) Yes
in the surrogacy
b) No clinics of the country, unlike Yemen, where IVF and surrogacy procedures
are non-existent and no doctors who are skilled enough to carry out these operations. Since

16) Local Methodist and Catholic churches, maulvis and priests have all
preached against surrogacy to their respective congregations. In your
procedure in lieu of the stigma attached to the people of the middle east there for the
opinion, was it a right decision to legalise Surrogacy in India, in the
ongoing
terrorist
year
2002?wars in the region and, he feared the discrimination that might be directed
a) Yes
towards
the couple. So he confined his searches to the Asian continent. After researching for
b) Nodestination to opt for the procedure he observed that the internet highly praises
the perfect
C) Cant say
he belonged to one of the Middle East countries, he ruled out travelling to the west for the

India in and recommends it as a prime destination of Asia for travelling, to couples who are
looking for a surrogate mother due the cheap costs of travelling, staying and following up
with the required steps. Moreover, the accuracy of the procedure has been hailed that is
unusually high when compared to the success rates of many more countries. Also, Indias
image as a hub for surrogacy for which a lot of his German friends and Canadian

acquaintances have vouched for and given a positive response convinced him to travel to the
country and opt for the procedure. Medicines that aid in the process are unavailable in his
home country but in India they are obtainable with the recommendation of the doctors. And
apart from bearing this cost, he also has agreed to pay $20,000 for all the medical expenses
that ensue and with his German friends reference contacted the same clinic who have
arranged for a surrogate mother who will also be paid $7,000 out of the entire cost for
bearing his offspring through IVF treatment. Upon his arrival, he has been staying in the
22 and has complimented the clinic personnals and the doctors for their hospitality and
clinic

professionalism. He, along with his wife has met the surrogate mother who has agreed to
carry their child three times already where both the parties have entered into an oral contract