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“Law and Policy on Surrogacy: A Socio-Legal Study in India” 201


Chapter – V
Comparative Global Trends
In most countries of the world, gestational surrogacy is legally prohibited. Where it
is allowed, it exists in the form of altruistic surrogacy, which is also regulated or restricted.
Contracts between parents and the surrogate mother are, in most cases, unenforceable. In
federations like the United States or the European Union, the unevenness of legal
restrictions or regulations by individual states or countries compounds the problem. The
United Kingdom sets an example regarding public policy and debate about surrogate
motherhood where although it is not a crime to be a surrogate mother or to be a
commissioning parent but ‘commercial surrogate agencies’ and commercial actions of
surrogacy agents are prohibited1 and no surrogacy arrangement whatsoever is enforceable
in law.2 When a disagreement arises concerning handing over the child, the surrogate
mother has the legal right to retain the child whether she is a genetic or gestational
surrogate mother.3 Married couples who have commissioned a surrogate mother to carry a
child for them may apply for and be granted a parental order, which will declare them the
legal parents of the child, provided that one or both of them supplied the gametes for the
The global scenario regarding surrogacy arrangements is a debatable issue with
every country having their own view and perspective on surrogacy. Surrogacy for
commercial purposes is currently prohibited in Australia, Spain and China. It is allowed
with restrictions in the United States, France and Germany. The countries such as Japan
and Netherlands have imposed a ban on surrogacy calling it ‘renting of the
womb’. In Australia, arrangement of surrogacy is considered as a
criminal offence. It permits altruistic surrogacy but commercial
The Surrogacy Arrangements Act, 1985, c. 49, § 2, states that “no person shall on a commercial basis,”
among other things, “initiate or take part in any negotiations with a view to the making of a surrogacy
arrangement,” but that it is not illegal “for a woman, with a view to becoming a surrogate mother herself,” to
do any of the actions prohibited to be done on a commercial basis.
The relevant pieces of legislation are § 2 of the Surrogacy Arrangements Act and the Human Fertilization
and Embryology Act, 1990, c. 37, §§ 30, 36(1). The latter section renders surrogate motherhood contracts
Human Fertilization and Embryology Act § 30(1) (declaring that “the court may make an order providing
for a child to be treated in law as the child of the parties to a marriage” if the surrogate mother was
artificially inseminated with either (1) the biological mother’s eggs or (2) both biological parents’ genetic
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“Law and Policy on Surrogacy: A Socio-Legal Study in India” 201

surrogacy continues to be illegal. Same is the case with Canada, where
altruistic surrogacy is legal while commercial surrogacy was made
illegal after 2004.
On the other hand, France is one of the few countries to make it
legal in 1994 keeping in mind the commercial gains that would follow
from the same. While Israel was the first one to have state controlled
surrogacy arrangement that would overlook the surrogacy practices
personally by the government. Although most of the industrialized
countries have rejected or have greatly restricted the practice of
surrogate parenting, to name a few, Australia, Sweden, Netherlands,
Denmark, France, Germany, Great Britain, Italy, Spain, Norway, Canada
and Switzerland etc. have incorporated the prohibition and
discouragement of this practice in their national laws.
Commercial surrogacy is neither prohibited nor it is allowed as legal in India. It is
legal in Ukraine, and California while it is illegal in England, many States of United
States, and in Australia, which recognize only altruistic surrogacy. In contrast, countries
like Germany, Sweden, Norway, and Italy do not recognize any surrogacy agreements.
India has become a favorite destination of fertility tourism. Each year, couples
from abroad are attracted to India by so-called surrogacy agencies because cost of the
whole procedure in India is as less as one third of what it is in United States and United
Kingdom (10-20 lakhs). Legislation on ART procedures differs between countries and is
only well regulated in Mexico and Brazil. In these countries, ART can only be offered to
married couples or those with a stable relationship.
In this research work, the researcher has listed out some of the
countries of the world to study the surrogacy law prevailing in the
world. But despite the prohibition and discouragement, some countries
still do not have any legislation regarding the status of the same.

5.1 United Kingdom:

In the United Kingdom, one of the few countries in Europe that allows surrogacy,
there was a great deal of controversy following the birth of a child in 1985 in a partial
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1985. 1990. No. Surrogacy is not forbidden in the Jewish religion. Human Reproduction Update. 39 Family Law Quarterly 633 (2005) at 635. Peter R. Chapter Two: ‘You Shall Love Your Neighbor As Yourself’. The clergies of the Church opine that these techniques infringe the child’s right to be born of a father and mother known to him and bound to each other by marriage. Verse: 2376. 9. Page | 3 . “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 surrogacy arrangement and legislation called “Surrogacy Arrangements Act. Under this law.5. commercial surrogacy arrangements were made illegal. 6 Byrn. pp. It treats it all as gravely immoral and unacceptable. especially as the government does not intend to make the practice illegal. The Anglican Church.483-491.5 A couple can apply to the court for a pre-birth order that will name the couple as the legal parents of any children born to the surrogate. This report set out guidelines for doctors intending to treat patients by gestational surrogacy and made it clear that it should only be carried out for exceptional reasons and after intensive investigation and counseling. 2003.6 It is a requirement of the United Kingdom’s Human Fertilization and Embryology Act. the British Medical Association agreed that it would not be possible or desirable to seek to prevent the involvement of doctors in surrogacy arrangements.. However. They betray the spouses’ right to become a father and a mother only through each other.7 This guides all the couples undertaking treatment through surrogacy in the United Kingdom. the Catholic Church is strongly against all forms of assisted conception. The Use of Prebirth Parentage Orders in Surrogacy Proceedings. 5 Brinsden. Section Two: The Ten Commandments. Mary P. Human Fertilization and Embryology Act. Article 6: The Sixth Commandment. Part Three: Life in Christ. Surrogacy Arrangements Act. In the Jewish religion the child born as a result of surrogacy will belong to the father who gave the sperm and to the woman who gave birth. on the other hand. Vol. particularly those associated with gamete donation and surrogacy. Steven H. 1990 that the welfare of any child born as a result of surrogacy treatment and the welfare of any existing children must at all times be taken into account when considering such treatment. 7 See Section 34 (2) (b). is less rigid in its views and has not condemned the practice of surrogacy. and Synder. 8 Catechism of the Catholic Church. Gestational Surrogacy. was rapidly passed to limit but not ban the practice. 1985”.8 4 See Section 2 (1).. which is very much family orientated and which lays a duty on Jews to have children.4 After a great deal of discussion.

the laws in United Kingdom sees the woman who carries and bears the child as the legal mother.10 But no criminal offence is committed by either the surrogate mother or the commissioning couple if. 1985 has been amended by the Human Fertilization and Embryology Act. because this payment to the surrogate mother will be treated as compensation for the services she provides to the infertile couple. company or agency that negotiates.2 Human Fertilization and Embryology Act. and they will be allowed to advertise those services for which they make a charge. 1990. it is agreed between them that payments will be made to the surrogate mother.12 The provisions of Human Fertilization and Embryology Act. Page | 4 . However. 12 Section 3 of the Surrogacy Arrangement Act. 1985.14 5. (5) of the Surrogacy Arrangement Act. any other person. 1985. makes or otherwise assists for payment in a surrogacy arrangement commits the said offence. (5). and to distribute such advertisements. 10 See Section 2 (3). 2008 14 See Section 54. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 5. wherein the payment is received by the person himself or another person. If she was married at the time of artificial insemination or the implantation of an 9 See Section 2 (3).13 With the enforcement of this Act.1. This Act of 1985 sought to outlaw profit making agencies from assisting in the creation of surrogacy arrangements. Surrogacy Arrangements Act. 1990: It is vital to remember that no matter what the genetic make-up of the child is. 1985. Human Fertilization and Embryology Act. 2008 have been enforced which has made amendments to the Human Fertilization and Embryology Act. 1985: First of all it is to be noted that the Surrogacy Arrangement Act. 1985. 11 Section 2 (1) of the Surrogacy Arrangement Act. Under this Act of 2008. unmarried and same sex couples will be able to apply for parental orders. 1990. The Act makes it illegal and guilty of an offence if the activity of surrogacy is done on commercial basis through payments 9. 1990 and to the Surrogacy Arrangements Act.1. a non-profit making body will be allowed to make a not for profit charge for facilitating surrogacy arrangements and compiling information. 1985.11 It is also a criminal offence in the United Kingdom to carry advertisements about surrogacy in any newspaper etc. 13 See Human Fertilization and Embryology Act.1 The Surrogacy Arrangement Act.

This presumption may be rebutted by evidence that the commissioning man is the genetic father. if she is married. f) The child is living with the commissioning couple. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 embryo. Thus. 16 See Section 30 (6) of Human Fertilization and Embryology Act. Section 36 of Human Fertilization and Embryology Act. Section 30 enables the court to order that the commissioning couple in a surrogate arrangement is to be treated in law as the parents without their having to adopt the child. surrogacy 15 See Section 28. 1990. The surrogate mother and the legal father must give full and free consent for the parental order. These limits are as follows: a) The child is genetically related to atleast one of the commissioning couple. unless it is shown that he did not consent to the implantation of the embryo or the artificial insemination. 1990 has introduced Section 1 A into the Surrogacy Arrangement Act. Such consent is not effective until the child is atleast six weeks old. and g) The commissioning couple is domiciled in the United Kingdom. Page | 5 . with her husband unless it is shown that the husband did not consent. 1990 provides a procedure by which the commissioning couple can acquire parental rights. the law in United Kingdom recognizes her husband as the legal father of the child. 1985 which provides that no surrogacy arrangement is enforceable by or against any of the persons making it. the parental responsibility for the child rests with the surrogate mother and.15 Thus. b) The surrogate mother has consented to the making of parental order (not earlier than six weeks after the birth of the child). 1990. Human Fertilization and Embryology Act. In other words.16 There are also other limits contained in Section 30 in relation to obtaining parental orders. Section 30 of the Human Fertilization and Embryology Act. c) The commissioning couple are married to each other and are both aged 18 years or above. if all the conditions mentioned above are fulfilled. e) No money other than reasonably incurred expenses has been paid in respect of the surrogacy arrangement unless authorized by the court. As the surrogate mother is recognized as the legal mother. d) The commissioning couple have made the application within 6 months of the birth of the child. under the laws in United Kingdom.

When the legal and counseling processes have been completed satisfactorily and if there are no obvious reasons why the arrangement should not proceed. provided that she is considered to be emotionally and physically in a condition to act in this capacity. Where the commissioning couple wishes to assume parental responsibility. couples are advised to consult lawyers who can specially advise on the potential legal problems associated with surrogacy. often run by lawyers. In the USA. a combined medical and counseling report is prepared and the arrangement is discussed anonymously with the independent 17 This will depend upon the terms of the contract between the parties. who provides in-depth counseling on all aspects of surrogacy. they may seek a parental order from the court under Section 30 of the 1990 Act. 5. 1990 provides that in respect of treatment which is regulated by the Act. whom they would like to act for them. Full details of the treatment are explained to the proposed host. The couples are then asked to seek an independent counselor. the commissioning parents cannot be compelled to hand over any money. and no other woman is to be treated as the mother of the child. In the UK and USA. are brought to the clinic for further in-depth discussions. the woman who is carrying or has carried a child as a result of the placing in her of an embryo or sperm and eggs. The largest experience of both partial and gestational surrogacy is in the USA. or recover any money paid to the surrogate mother under the terms of such a contract or take responsibility for the child. where commercial surrogacy arrangements are allowed.17 Section 27 of Human Fertilization and Embryology Act. Similarly. Page | 6 . This means that the surrogate mother cannot be compelled by the commissioning parents under any contractual provision to hand over her child. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 contracts are unenforceable in the courts in United Kingdom.2 Surrogacy Laws in United States of America: The first ever report of a baby being born following treatment by gestational surrogacy was from the USA in 1985. highly professional commercial agencies exist. This is relevant where IVF or donor insemination is involved. The commissioning couple and a host. which put couples in touch with women who are willing to act as surrogate hosts.

like in vitro fertilization and artificial insemination. The father of an illegitimate child was burdened neither with rights nor obligations. 18 Brinsden. 1973 was law for a new generation.2. laws on surrogacy in the USA are very complicated as different states have different laws. paternity actions and child support.2-7. The US Supreme Court eliminated illegitimacy as a legal barrier in a number of cases in the 1960’s and 70’s. In 1973. The old-fashioned paternity actions simply did not respond to these changes in fundamental law. 2003. It led to a revolution in the law of determination of parentage. The second was the Uniform Putative and Unknown Fathers Act. the surrogacy arrangement may be approved. The laws of few important States of USA have been discussed hereunder: - 5. After a full review. 1988 provided rules establishing legal parentage for children conceived other than by sexual intercourse and possibly carried by a woman other than the legal mother. not a civil action. or rejected. 1973 provides that the parent and child relationship extends equally to every child and every parent.18 Thus. pp. regardless of the marital status of the parent.1 California Surrogacy Law: California is one of the notable States in the USA as it has a ‘surrogacy friendly jurisdiction’. but then the unmarried father also had no right to custody of the child. the Uniform Law Commissioners promulgated the Uniform Parentage Act. No. The Uniform Parentage Act. Gestational Surrogacy. He could be subject to an action for limited damages (the costs of delivering the baby) in an action that was quasi-criminal. In every surrogacy arrangement. the Clinic has to follow the recommendations of the Ethics Committee. It is a procedural act that allows the identification of putative and unknown fathers and termination of their parental rights. The child had no right of support. It was a response to the technologies of assisted conception. Human Reproduction Update. A child whose mother was not married was an illegitimate child under the common law. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 Ethics Committee to the Clinic. Page | 7 . the Uniform Law Commissioners promulgated two other acts that deal with issues of parentage. 1988. The Uniform Status of Children of Assisted Conception Act. In 1988.. held over pending further information and discussion. 9. Peter R. Vol.5. Section 2 of the Uniform Parentage Act.

The original policy of the Uniform Parentage Act. In Article 2 of the Uniform Parentage Act. Article 7: Child of Assisted Conception. California’s courts have used the State’s Uniform Parentage Act. which addressed technological changes. and Article 8: Gestational Agreement. the woman who carries the child to birth is not the legal mother. 2000 continues to serve the purposes of the Uniform Parentage Act. the National Conference promulgated a modernized version of the Uniform Parentage Act. especially the development of DNA identification. 2000. In the last three instances. but may also be one who is adjudicated as the legal mother. or who is the legal mother under a gestational agreement. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 In 2000. who adopts the child (thus expressly recognizing adoption). 2000 (as amended in 2002) to interpret several cases concerning surrogacy agreements. There are seven substantive Articles. however. Bisexual and Transgender (LGBT) individuals can also opt for such a surrogacy arrangement. California heads the way in terms of acceptability of surrogacy agreements and upholds that Lesbian. particularly the purpose of identifying natural fathers so that child support obligations may be ordered. 1973. Page | 8 . While the State has no statute directly addressing surrogacy. 1973 was that it provided a relationship between natural parents and their children. is more complicated in 2002 than it was in 1973. extending the Act to also provide a balanced coverage to questions of parentage arising in non-marital circumstances. Legal parenthood. namely: Article 2: Parent-Child Relationship. Article 5: Genetic Testing. Article 4: Registry of Paternity. a legal mother is one who carries a child to birth (rather than the one whose egg has been fertilized). Gay. The Uniform Parentage Act. notwithstanding the marriage of the parents continues. Article 6: Proceeding to Adjudicate Parentage. In 2002. further changes to the Uniform Parentage Act were promulgated. and incorporated and replaced the two 1988 Acts (Uniform Status of Children of Assisted Conception Act and Uniform Putative and Unknown Fathers Act). Article 3: Voluntary Acknowledgment of Paternity.

a man who consents to an assisted reproduction under Article 7. There is a counterpart denial of paternity by a presumed father that is. d) an adoptive father. If a man and woman consent to any sort of assisted conception and the woman gives birth to the resultant child. Article 3 of the Uniform Parentage Act. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 Under Article 2. they are the legal Page | 9 . Article 5 establishes a separate procedure for genetic testing. also. c) an adjudicated father as the result of a judgment in a paternity action. An acknowledgment from another state is given the privilege of full faith and credit in a state adopting the Uniform Parentage Act. The non-judicial acknowledgment of paternity proceeding under Article 3 allows a knowing and voluntary acknowledgment of paternity that is the equivalent of a judgment of paternity for enforcement purposes. the legal father may be one of the following: a) an unrebutted presumed father (a man married to the birth mother at the time of conception. or a man who resided in the same household as the child during its first two years of life. b) a man who has acknowledged paternity under Article 3. There are provisions for recession. The genetic father or the presumed genetic father is the legal father in the first three of these categories. 2000. available and has the effect of a judgment of non-paternity. consent proceeding for acknowledgment of paternity. acknowledged or adjudicated father. or e) an adjudicated father in a proceeding confirming a gestational agreement under Article 8. 2000 provides a non-judicial. if another man acknowledged paternity or is adjudicated to be the natural father. Article 7 deals with parentage when there is assisted conception and incorporates the earlier Uniform Status of Children of Assisted Conception Act into the Uniform Parentage Act. if a proceeding is filed within two years of registration pursuant to Article 4. Such an acknowledgment is effective so long as there is not another presumed. but is not necessarily the legal father in the latter three categories. 2000 almost without change. A reasonable probability of sexual contact between the putative father and the mother is enough to initiate the proceeding. and openly held the child out as his own). so that a court may order testing without a full-blown paternity action.

The Court further decided that the person who intended to procreate. 2000. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 parents. the influential cases in California regarding surrogacy rights have been decided interpreting the Uniform Parentage Act. Gestational agreements are carefully controlled under the Uniform Parentage Act. The conception must be an assisted conception..2d 776 (1993) Page | 10 . and all parties to the agreement. It brings genetic testing into modern parentage actions in a manner that is efficient. They are made an optional part of the Uniform Parentage Act. The woman who carries the child to birth pursuant to a gestational agreement is not the legal mother of that child. and the legal parenthood of children should not be in doubt because such agreements are used. i. A court must validate such agreements before they are enforceable. including the gestational mother’s spouse (if married). Gestational agreements are valid in some states and not in others. the mother who provided her egg to the 19 851 P. in Johnson v. 2000 confronts the complicated issue of establishing legal parentage against the complications that technology provides. incorporating parts of the Uniform Status of Children of Assisted Conception Act on this issue. an exception to the general rule. For Example. The hearing that the court conducts to validate a gestational agreement is analogous to a proceeding for an adoption of a child. The court verifies the birth mother’s qualifications to carry the child and the intended parents’ qualifications to be parents. Thus. but that preserves due process rights for all concerned. A donor of either sperm or eggs used in an assisted conception may not be a legal parent under any circumstances. Calvert19. A gestational agreement occurs between a woman and a married or unmarried couple obligating that woman to carry a child genetically related to either or both of the intended parents. the California Supreme Court decided that the intended parents in a gestational surrogacy agreement (where the surrogate is not the biological contributor of the egg) should be recognized as the natural and legal parents. 2000 for that reason. The birth mother may be compensated. On the other hand. The intended parents become the legal parents of the child. Having such provisions available to the states even in optional form is important simply because gestational agreements are being used all the time. must consent to its terms. Article 8 deals with gestational agreements.e. 2000. and has the power to terminate the agreement. the provisions of the Uniform Parentage Act.

The couple separated and John disclaimed any parental responsibility for the child. Superior Court22. The timeframe to obtain a judgment can take several months. The Court held that the intended father and the surrogate mother were the legal parents of the child. In the 1994 case of Re Marriage of Moschetta20. two women can be the legal parents of a child produced through surrogacy. mostly due to the court’s 20 (1994) 25 Cal. In 2005. the California Supreme Court decided three companion cases that concerned lesbian couples who had reproduced via surrogacy. 4th 1218 21 (1998) 61 Cal.M.3d 690 (2005) 24 117 P. leaving the intended mother without any parental rights. App. a California Court of Appeals addressed the question of how to determine parentage when a child is conceived via traditional surrogacy (in which the surrogate mother is the biological contributor of the egg) and the child was born after the intended parents had separated. v. Elisa B. the couple is the legal parents of the offspring. v.3d 660 (2005) 23 117 P.G. App. 5. should be considered the natural mother. E. 4th 1410. This ruling presumably applies to all members of the LGBT community.3d 673 (2005) Page | 11 . the Court found that when a married couple intends to procreate using a non-genetically related embryo implanted into a surrogate. When a married couple consents to in-vitro fertilization by unknown donors and its subsequent implantation into a surrogate. Kristine H. v.24 The Court held that. This also follows through to a couple who uses the services of an Egg Donor. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 surrogate. the intended parents are the lawful parents of the child. under the Uniform Parentage Act. 22 117 P. Luanne and John had an embryo genetically unrelated to either of them implanted in a surrogate named Buzzanca.2 Pre-Birth Order: One of the most important advantages of performing surrogacy in California is that it is possible to get a ‘Pre-Birth Order’ which will establish the intended parents as the legal parents of any children born through a surrogate within a specified time period. Ultimately.2.23 and K. Lisa R. In the case of the Marriage of Buzzanca21.

To obtain the Pre- Birth Order. The Use of Prebirth Parentage Orders in Surrogacy Proceedings. Most hospitals in California are now very familiar with these arrangements and have a specific protocol in place to ensure the transition goes smoothly for everyone. In the US. This form will be signed by both the intended parents. the registrar will forward the paperwork to the California State Department of Vital records. the judgment should be obtained no later than twenty weeks into the pregnancy. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 availability to review the documents and/or set the matter for hearing. the couple may choose to file for Pre-Birth Order earlier. and by the delivering doctor. the paperwork would usually be filed with the court between the fourth and seventh month of the surrogate’s pregnancy. it is the hospital’s duty to register the birth of any children born at that hospital. Without such a judgment. if she is pregnant with multiples. Once this has been done. As a practical matter. This means that a full-time registrar will be at the hospital that will come along to the private room within 24 hours of the birth of the baby and the birth registration form is to be filled out. Because the birth certificate must be registered with the Office of Vital Records within ten days of the birth. The reason is that after twenty 25 Byrn. This will then be ready for collection within the next two weeks. Mary P. In all cases where a surrogate gives birth to a child for another couple or person. her husband's name) must go on the birth certificate. if the surrogate is at high risk for early delivery at any point of the pregnancy. Steven H. if the certificate is accompanied by a Superior Court judgment naming the intended parent(s) as the legal parent(s) of the child. the surrogate’s name (and if she is married.. the judgment should be presented to the birth records department of the hospital at the time of birth. 39 Family Law Quarterly 633 (2005) at 635. the hospital where the surrogate will be delivering should be forwarded a copy of the same. and that specialized handling should be put in place to accommodate the needs of the intended parents and the surrogate and her family. the California Office of Vital Records will only allow the intended parents’ name(s) to go on the birth certificate. This will highlight to the hospital team that this is a surrogacy arrangement.25 Once the Order is obtained. However. for example. where the birth certificate will be produced. This is in order to ensure that the judgment is in place prior to the birth of the child/children to prevent the surrogate’s name from being listed on the child’s birth certificate. Normally this will go to the social work department. Page | 12 . and Synder.

Mary P. Section 122. one in the box for. and his name in the box for. cannot be left blank. The Use of Prebirth Parentage Orders in Surrogacy Proceedings. “Father”. the box designated. unenforceable and contrary to public policy27 and provides for civil penalties for those 26 Byrn. Page | 13 . “Mother”. The best choice is to have his name go in the box for. If a single man is the sole parent. He can opt to have the surrogate’s name go in the box for. “Father”. Steven H. or he can elect to have his name go in the box for. left with a dash (-). and one in the box for. 27 New York Code Article 8. “Mother”. Where there is both an intended mother and an intended father. “Mother”.26 5. 39 Family Law Quarterly 633 (2005) at 635. In both cases.3 New York Surrogacy Law: The surrogate parenting contracts in New York have been seen as void. “Father”.. “Mother”. and Synder. so that the birth certificate is as accurate as possible from the time of birth. however. This means that the single male parent has two choices. “Mother”. filling out the birth certificate is straightforward. the judgment calls for the birth certificate to be reissued with the single man’s name in the box for. both of which require the parent’s name(s). The hospital where the child is born simply follows the court judgment and fills out the birth certificate with the intended mother and intended father’s names in the appropriate boxes. “Father”. In cases of gay or lesbian couples. and the box for. left blank. “Mother”. and leave the box for. the best course of action is to have the court issue its judgment requiring that both intended parents’ names to go on the birth certificate.2. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 weeks Vital Records will require either a certificate of birth or foetal death.

in connection with any surrogate parenting contract. compensation or other remuneration. but neither is available to same-sex couples. Page | 14 . (b) Any other person or entity who or which induces. a genetic father and his wife. arrange or otherwise assist in arranging a surrogate parenting contract for a fee.15. 29 Florida Statute 63. (2) (a) A birth mother or her husband. after having been once subject to a civil penalty for violating this section. surrender or consent to the adoption of the child born as a result of the impregnation or insemination. or intends to.4 Florida Surrogacy Law: Florida law explicitly allows both Gestational Surrogacy agreements and Traditional Surrogacy. arranges or otherwise assists in the formation of a surrogate parenting contract for fee. directly or indirectly. Altruistic surrogacy contracts are neither penalized. pay or give any fee. the genetic mother and her husband who violate this section shall be subject to a civil penalty not to exceed five hundred dollars. New York also does not recognize pre-birth orders from other states. compensation or other remuneration or otherwise violates this section.212 (1) (i) and Florida Statute 742. and (b) the woman agrees to. receive. This is because the Florida Gestational Surrogacy Statutes29 impose strict requirements on the contracts. for the first such offence. 5. except for: (a) payments in connection with the adoption of a child permitted by subdivision six of section 374 of the social services law and disclosed pursuant to subdivision eight of section 115 of this chapter. it has provided a post- birth adoption alternative for altruistic surrogate parents via orders of maternal and paternal filiation. compensation or other remuneration. shall be guilty of felony. nor enforced. Rather. 28 Section 123 of New York Code: (1) No person or other entity shall knowingly request. Any person or entity who or which induces. or (b) payments for reasonable and actual medical fees and hospital expenses for artificial insemination or in vitro fertilization services incurred by the mother in connection with the birth of the child. The New York Code defines ‘surrogate parenting contracts’ under Section 121 as agreements in which: (a) a woman agrees to be either inseminated with the sperm of a man who is not her husband or to be impregnated with an embryo that is the product of an ovum fertilized with the sperm of a man who is not her husband. arranges or otherwise assists in the formation of a surrogate parenting contract for a fee. accept. 28 Parties to uncompensated surrogacy contracts are not subject to civil or criminal penalties. or induce. compensation or remuneration in accordance with the provisions of subdivision (a) of section 7201 of the civil practice law and rules. if the genetic mother is not the birth mother. compensation or other remuneration or otherwise violates this section shall be subject to a civil penalty not to exceed ten thousand dollars and forfeiture to the state of any such fee. The main reason for this is because surrogacy contracts have been interpreted to involve “trafficking of children”. and.2. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 who participate in or facilitate a commercial surrogacy contract.

Supp. the adoption must be approved by a court. The most important distinction between them is that under pre-planned adoptions. 5. the surrogate must agree to relinquish her rights to the child upon birth. regardless of any impairment the child may have. “pre-planned adoption agreement”. ‘pre-planned adoption agreement’. the intended mother must show that she cannot safely maintain a pregnancy or deliver a child. with a “voluntary mother”. and requires court approval for the adoption. provides under Section 742. Both sets of laws require the surrogate mother to submit to medical evaluation.15 that prior to engaging in gestational surrogacy. The law governing ‘traditional surrogacy arrangement’. Recruitment fees for Traditional Surrogates are prohibited.15. and at least one of the intended parents must be genetically related to the child. “couples that are legally married. Kearney.2.2d 1372 (2001) 31 Section 742. which was upheld in the case of Lofton v.31 In contrast. Page | 15 . under a ‘Gestational Surrogacy contract’. Florida law explicitly prohibits “homosexuals” from adopting. and the intended parents do not have to be biologically related to the child. A contract for gestational surrogacy shall not be binding and enforceable unless the gestational surrogate is 18 years of age or older and the commissioning couple are legally married and are both 18 years of age or older. and require the intended parents to agree to accept any resulting child. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 among them limiting involvement to. make the surrogate the default parent if an intended parent who is expected to be a biological parent turns out not to be related to the child.30 ‘Traditional Surrogacy’ is referred to as a. Additionally. the birth mother has 48 hours after the birth of the child to change her mind. which are referred to as. Florida Statute. a binding enforceable gestational surrogacy contract shall be made between the commissioning couple and the gestational surrogate. which prevents same-sex couples from being allowed to use surrogacy as they are not legally married.5 Texas Surrogacy Law: 30 157 F. limit the types of payment allowed.

if any. The intended mother must show that she is unable to carry a pregnancy or give birth. She will maintain control over all health related decisions during the pregnancy. the parental rights will vary based on whether either of the intended parents have a genetic relationship to the child. The parties then must obtain an order from the court validating the gestational agreement in order to be enforceable under the Texas law. and parentage will be determined under the other parts of Texas’s Uniform Parentage Act. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 Texas is one of the very few states that are considered ‘surrogate friendly’. It is against the law for the gestational mother to use her own eggs. depending on the circumstances. the surrogate mother and her husband. sperm or embryos to the gestational mother for the purpose of conception or implantation. the intended mother must be infertile or unable to 32 See Texas’s Uniform Parentage Act Page | 16 . will be named the legal parents and the intended parents will only be able to acquire parental rights through adoption. she must have had at least one prior pregnancy and delivery.2. the parties must have undergone medical evaluations and counseling. But if she does not. then the intended parents will be the legal parents. An agreement that has not been validated is not enforceable. Section 160. a finding that all parties meet the standards of fitness applicable to adoptive parents. There is a residence requirement of at least 90 days for either the gestational mother or the intended parents.32 5.6 Virginia Surrogacy Law: Virginia requires pre-authorization of a surrogacy contract by a court. then the surrogate can file a consent form relinquishing rights to the child. they may need to adopt in order to obtain parental rights. Notwithstanding all of the above. To be a surrogate mother. If the contract was never approved.754 of the Texas Family Code provides that the gestational agreement must be entered into atleast fourteen days prior to the date of the transfer of any eggs. Virginia’s requirements for court approval include: a home study. The intended parents must be married and must undergo a home study. if the surrogate is the genetic mother. the surrogate must be married and have delivered at least one prior live birth. she may terminate the contract within the first six months of pregnancy. If the contract is voided. If the contract is approved.

Article 1. Similarly. legislation was recently enacted in New South Wales. The intended parents must accept the child regardless of its health or appearance. Issue 1. namely. Surrogacy in Queensland: Should Altruism be a Crime?. There is no uniformity of regulations throughout Australia.33 The summary of different legislations applicable in different jurisdictions of Australia is as follows: Jurisdiction Legislation Current Legal Position on Surrogacy Queensland Surrogate The old Act of 1988 prohibited all forms of Parenthood Act. 2008. White Ben. Volume 20. The law also provides for an allocation of costs when a non-validated contract is terminated under various circumstances. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 bear a child. Tasmania and South Australia. Some States have enacted legislations with different models being used in different jurisdictions. legislation to amend the existing legislative framework has also been drafted and introduced into the Parliament in South Australia. 5. Victoria. legislation has been drafted in Western Australia also. The legislations governing surrogacy is in operation in five Australian jurisdictions. The court’s approval of assisted conception under the contract is effective for twelve months.5.3 Australian Surrogacy Law: Like the USA. surrogacy and imposed criminal penalties for 1988 repealed and breach of prohibitions (Section 3). legislative power for this area remains with the States. Bond Law Review. Page | 17 . and the parties may collect damages from the facilitator or agency. All 33 Brown Catherine. Likewise. The Commonwealth does not have constitutional power to legislate on surrogacy hence. Willmott Lindy. In addition. The surrogate retains sole responsibility for the clinical management of the pregnancy. Recruitment fees are punishable as a misdemeanour. Australia has different regulations in different states. Compensation beyond reasonable medical and ancillary costs is not allowed. Queensland. p. and at least one intended parent must be genetically related to the child. the Australian Capital Territory (ACT). and few States rely solely on the common law. The court must appoint counsel for the surrogate and a guardian ad litem to represent the interests of any resulting children during the approval proceedings.

Even giving or receiving consideration is punishable with a maximum penalty of 100 units or 3 years imprisonment (Section 57). penalties are provided (Section 59). Under the Surrogacy Act. altruistic were void (Section 4).“Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 now Surrogacy Act. Under Section 21. Altruistic 1995 surrogacy is not dealt with but surrogacy agreements whether commercial or altruistic are Page | 18 . All surrogacy agreements are void. New South Assisted Surrogacy both commercial and altruistic is Wales Reproductive regulated by Common Law. It purported to have extra territorial operation (Section 3 (2). surrogacy agreements whether commercial or 2010 prevails. Under Section 56 of the 2010 Act. Victoria Infertility Commercial surrogacy is prohibited and Treatment Act. an obligation to pay or reimburse surrogacy costs to the birth mother is enforceable (Section 15 (2). as the Assisted Technology Act. an application for a ‘Parentage Order’ in relation to the surrogate child can be made but not less than 28 days and not more than 6 months after the child’s birth or at a later time with the court’s leave. The new Act not yet enforced prohibits commercial surrogacy but does not deal with altruistic surrogacy. 2007 has been 2007 enacted but enacted but has not yet enforced. However. Reproductive Technology Act. 2010. commercial surrogacy arrangements are prohibited and a maximum penalty of 100 units or 3 years imprisonment is imposed for entering into or an offer to enter into a commercial surrogacy arrangement. a surrogacy arrangement is not enforceable (Section 15 (1).

However. when at least one commissioning Assembly.“Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 void (Section 61). Australian Parentage Act. the Victorian Law Reform Commission has recommended the continued prohibition of commercial surrogacy and facilitation of altruistic surrogacy. 2007 if enacted. However. Surrogacy agreements Territory are void (Section 31). Surrogacy agreements are void (Section 10 G). facilitation of all surrogacy arrangements is prohibited (Section 4). Parentage under altruistic surrogacy is facilitated (Division 2. Altruistic surrogacy is not dealt with. Surrogacy Surrogacy Bill. Western No Legislation. 1993 penalized (Section 4). parent is eligible for IVF procedure. Commercial surrogacy is prohibited and Capital 2004 penalized (Section 41). penalties are provided under Section 10 G and 1975 10 H. commercial Australia However. 2007 has been the Bill provides for transfer of parentage of a introduced in the child born under altruistic surrogacy Legislative arrangements. arrangements will not be enforceable. Altruistic surrogacy is also prohibited but no penalties are provided (Section 10 G).5) Tasmania Surrogacy Commercial surrogacy is prohibited and Contracts Act. However. The Social Development Committee has recommended the facilitation of transfer of parentage where both the commissioning parents are infertile and have been living in a heterosexual marriage or a de-facto relationship for a period of 5 years. Surrogacy Bill. Surrogacy agreements are void and unenforceable. surrogacy will be an offence. Northern No Legislation Commercial and altruistic surrogacies are Page | 19 . South Family Commercial surrogacy is prohibited and Australia Relationships Act.

2007 (enacted in New South Wales). Section 10 H. Section 44. Surrogate Parenthood Act. 1975 (enacted in South Australia). Family Relationships Act. Section 10 H. c) entry into a commercial surrogacy is prohibited36. Family Relationships Act. Page | 20 . 1993 (enacted in Tasmania. Family Relationships Act. 2004 (enacted in Australian Capital Territory). 2007 (enacted in New South Wales). “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 Territory regulated by Common Law. Section 10 G. 1988 (enacted in Queensland). 2007 (enacted in New South Wales). They are as follows: a) surrogacy agreements. 1988 (enacted in Queensland). If certain conditions are fulfilled. 1995 (enacted in Victoria). Section 4. Infertility Act. Family Relationships Act. Infertility Act. Surrogacy Contracts Act. Section 31. 1975 (enacted in South Australia). d) facilitating surrogacies for reward is prohibited37. Infertility Act. The above-mentioned legislations prevalent in different States of Australia have some common elements. Section 59. Assisted Reproductive Technology Act. Parentage Act. 1988 (enacted in Queensland) altruistic surrogacy is prohibited. for both commercial and altruistic surrogacies). 1993 (enacted in Tasmania). the Parentage Act. 1993 (enacted in Tasmania). 2004 (enacted in Australian Capital Territory for commercial surrogacies only). 39 Section 6. Assisted Reproductive Technology Act. 2004 (enacted in Australian Capital Territory). Section 10 G. Section 6. Assisted Reproductive Technology Act. 1988 (enacted in Queensland). Section 61. Section 60. but no penalty attaches for breach of this provision. Infertility Act. Surrogate Parenthood Act. Section 45. Parentage Act. The legislation in the Australian Capital Territory. Parentage Act. 38 Section 3. Parentage Act. Surrogate Parenthood Act. 1988 (enacted in Queensland). f) Providing technical services is sometimes prohibited39. b) entry into altruistic surrogacy is generally not prohibited35. Section 4. 2004 is the most progressive of all the Acts passed till date because it facilitates practical aspects of a surrogacy arrangement. 2004 (enacted in Australian Capital Territory). Section 41. 36 Section 3. there are also some important differences in the regulatory regimes. 2007 (enacted in New South Wales). 1993 (enacted in Tasmania). Section 43. Family Relationships Act. Section 43. 35 But under Section 4. 1995 (enacted in Victoria). 1995 (enacted in Victoria). 1975 (enacted in South Australia). Surrogate Parenthood Act. Surrogacy Contracts Act. Surrogate Parenthood Act. whether commercial or altruistic are void and unenforceable34. Assisted Reproductive Technology Act. Section 59. 2004 (enacted in Australian Capital Territory). 1993 (enacted in Tasmania). 1975 (enacted in South Australia). 1995 (enacted in Victoria). 1975 (enacted in South Australia) altruistic surrogacy is illegal. e) Advertising surrogacy services is prohibited38. Surrogacy Contracts Act. 37 Section 3. the commissioning parents can make an application to the Supreme Court to become 34 Section 4. Surrogacy Contracts Act. The survey of legislations available in various States of Australia shows that despite the common themes in various statutes. But Section 10 G. Section 42. Parentage Act. Section 44. Section 43. Surrogacy Contracts Act. Section 7.

The Standing Committee of Attorney’s General in March 2008 recommended the implementation of uniform surrogacy laws for entire Commonwealth of Australia. 5. commissioning parents and agencies involved in arranging surrogacy. can expose an individual to criminal sanction. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 registered as child’s legal parents. but there is no binding law and some couples have had children through surrogate mothers 40 See Parentage Act. Lavarch Committee was constituted. or even an offer to enter such agreement. Japanese obstetricians adopted a ban against surrogate births in 1983. 1988 (Queensland) and Section 5 (1) (b).41 For the analysis of the threshold issue whether altruistic surrogacies should continue to attract criminal sanctions. This is a clear and deliberate policy shift towards regulating altruistic surrogacy arrangement.40 But the Queensland lies at the other end of the spectrum in as much as it prohibits both commercial and altruistic surrogacy. It is expected that this committee will undertake its review of the Surrogate Parenthood Act. which puts patients in a situation of considerable uncertainty about their rights. In the opinion of the researcher. d) Lack of empirical evidence to prove the harm to the surrogate child.5. Hence. Page | 21 . 41 Section 3 (1) Surrogate Parenthood Act. there can be following 5 reasons for decriminalization of altruistic surrogacy in Australia: a) Lack of empirical evidence of harm to anyone because of altruistic surrogacy. division 2. This means that entry into an altruistic agreement.4 Japan Surrogacy Law: Japan has not yet regulated assisted reproductive technology by law. b) Lack of empirical evidence to prove exploitation of the surrogate. 1988 (Queensland). part 2. This lack of rules and regulations leaves the citizens to approach the courts for the solution of numerous controversies. it is submitted that the criminal law should not impose punishment on behaviours that do not cause harm. c) Lack of empirical evidence to prove the harm to the commissioning parents. Thus. 1992 (Queensland). 2004 (Australian Capital Territory). e) Presence of positive relationships among the surrogate mother. a strong case for de-criminalization of altruistic surrogacy should be made out for the continent of Australia. Penalties and Sentences Act.

Japan’s first surrogate birth was announced in 2001 and led to the Health Ministry calling for an immediate ban. time 10:00 am (IST). State Minister for gender. agents and their clients should be punished for commercial surrogacy arrangements.asp. In its decision dated 23th March. have prompted the government to consider for framing of rules and regulations regarding surrogacy. have to keep it secret because of stigma surrounding surrogacy in Japan. equality and population had said that ‘the discussion is highly welcome. 43 Surrogate Birth Child Denied Registration Case. Page | 22 . Japanese the Supreme Court of Japan denied parenthood to 42 http://www.bionews. custody battles and distress caused during the process. 61 Minshu No. if they seek a surrogate baby. Supreme Court of Japan has taken a different legal stand in respect of surrogacy. the Society of Obstetrics and Gynaecology successfully managed to prohibit surrogate births in 2003. The debate reflects growing Japanese public sympathy for infertile couples. The Japanese Prime Minister Shinzo Abe have opined that the issue of surrogacy is ‘very difficult’ and Sanae Takaichi. legal and ethics experts at the Science Council of Japan. Uttar Pradesh. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 with the help of a doctor in central Japan who is defying domestic medical circles. surrogacy is currently prohibited by the Society of Obstetrics and Gynaecology in Japan after concerns over safety. but it is extremely difficult to judge whether surrogate birth can be encouraged.2 (Sup. The Society had previously adopted ethical rules that severely restrict the use of in-vitro fertilization’42 Although it appears likely that the public will support changes to the existing law. 200743. have debated the issue at the request of the government argued that surrogate births pose health risks to both surrogate mothers and children. place Meerut. 2nd Petty Bench. In March 2008. 23 March 2007). Case No. Although not a crime. A panel of health. last visited on 20/07/2014. it remains to be seen whether the government will endorse a sympathetic view towards surrogacy. the Science Council of Japan proposed a ban on surrogacy and said that doctors. India. Such births. Although this was blocked. citing the mental and physical burden to the surrogate mother and the fear that surrogacy could confuse family relationships. 47 of 2006. along with a trend for couples to go abroad in search of surrogate mothers in countries such as India. Ct.

5 Israel Surrogacy Law: Israel is a pro-natalist society whose Jewish-Israeli population tries anything in order to have a child. who gives birth to a child. A state-appointed Approval Committee permits surrogacy arrangements to be filed only by adult Israeli citizens who share the same religion. There exists no specific laws in Japan concerning parent-child relationship for artificial insemination. widowed or divorced and only infertile heterosexual couples are allowed to hire surrogates. She cannot be biologically related to either designated parent. The sperm has to belong to the designated father and the egg must not be that of the surrogate mother. The numerous restrictions on surrogacy under Israeli law have prompted some intended parents to turn to surrogates outside of the country. Surrogates must be single. the Supreme Court. since the twin babies were born to a surrogate mother at United States. held that a mother who physically gives birth to a child is the legal mother of the child. on the ground that the law presumes the woman. There is no provision in the Code to recognize the genetic mother as legal mother. and the mother-and- child relationship will be based on the fact of delivery. 5. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 genetic parents. The egg can belong to the designated mother or if her Page | 23 . The Japan Supreme Court rejected the Japanese commissioning parents’ bid to register their twins born to a US surrogate mother in Japan. In 1996. Israel’s pro-natalist impulse has made it into one of the leading countries in the world in the research and development of new reproductive technologies. widowed or divorced) who already have at least one child of their own. surrogates must be unmarried women (single. In Israel. Israel’s national health insurance funds IVF treatment upto 2 live births for childless couples and for women who want to become single mothers. Interpreting the Civil Code of Japan. the Israeli government legalized gestational surrogacy under the ‘Embryo Carrying Agreements Act’. This law made Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state. The option of not becoming a mother is virtually absent in Israel. This small country currently holds the highest number of fertility clinics per capita in the world. as its mother.

be donated by an egg donor. can be an intended mother. time. irrespective of marital status. The surrogate mother can only withdraw from the agreement and keep the child before legal parenthood is granted to the designated parents. they will be the child’s sole guardians and his or her parents in every respect. The law also excludes single men or women and same-sex couples. “Law and Policy on Surrogacy: A Socio-Legal Study in India” 201 5 ova are not viable. and upon the court’s confirmation. The Embryo Carrying Agreement Act. Likewise. the law states that only a woman who has a male partner. irrespective marital status. the designated parents must submit a request to receive legal parenthood. Page | 24 . including legal counseling. The designated parents must meet age requirements. The surrogate mother can be compensated for her services and expenses. 1996 allows only heterosexual couples to enter into an agreement with a surrogate mother. loss of earnings and earning capacity. in which individuals are accorded rights and status on the basis of their religious and family status. and the mother has to prove that she is infertile or that pregnancy would significantly damage her health. for two examples among many. The designated parents and the surrogate mother must all share the same religion. The law states that only a man who has a female partner. and any other reasonable expense. pain. This is consistent with the legal philosophy of family law in Israel. Financial arrangements should be a part of the agreement submitted to the Surrogacy Approval Committee. Receiving egg donations should be eased by the passing of the Egg Donation Law in Israel in 2010. and only if a social worker appointed by the court attests that the circumstances have changed in way that justifies the withdrawal and that the child’s welfare would not be hurt by the withdrawal. and. so the child’s religious status will be clear. can be an intended father. forbids interfaith marriage and adoptions. The question of who can become a parent by surrogacy in Israel is also strictly regulated. health insurance. After the birth.