LAW COMMISSION REPORT (CRIMINAL)

Surrogacy in India – A comparative Analysis

and Prospective Future
SUBMITTED BY:

VAISHNAVI MISRA

1550274

9 B.A. LLB ‘B

SUBMITTED TO:

Dr. AVINASH KUMAR

ASSISTANT PROFESSOR

SCHOOL OF LAW

CHRIST (DEEMED) TO BE UNIVERSITY

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 TABLE OF CONTENTS

S. NO. CHAPTER PAGE NO.

1 Introduction 3

2 Right to Reproduction – A Constitutional 5

Right

3 Position of Artificial Reproductive 7

Technique in UK, USA and Australia
Legal System

4 Indian Jurisprudence on Surrogacy 20

5 Laws in Place and Legal Issues 23
6 Analysis of Artificial Reproduction 30
Technology (Regulation) Bill, 2010

7 Legal Issues Related to Surrogacy: 35

International Perspective

8 Case Studies 37
9 Conclusion 43
10 Suggestions and Recommendations 45

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 CHAPTER - 1

INTRODUCTION

Jeremy Bentham looked upon „law‟ as an instrument for securing the

“greatest good of the greatest number”. This project seeks to address one
such question with regard to the issue of surrogacy in India and, in the
process, analyses its various dimensions in order to ascertain the basis which
makes it imperative for the legislature to pass a law to explicitly address the
issue. In its quest, the project endorses the need for legalization of surrogacy
from the perspective of positive fundamental right of procreation guaranteed
under Article 21 of the Indian Constitution and the compelling state interest
in maintaining the „rule of law‟. The world's second and India's first IVF (in
vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata on
October 3, 1978 about two months after the world's first IVF boy, Louise Joy
Brown born in Great Britain on July 25, 1978. Since then the field of assisted
reproductive technology (ART) has developed apace. The growth in the ART
methods is recognition of the fact that infertility as a medical condition is a
huge impediment in the overall wellbeing of couples and cannot be
overlooked especially in a patriarchal society like India.1 A woman is
respected as a wife only if she is mother of a child, so that her husband's
masculinity and sexual potency is proved and the lineage continues. The
problem however arises when the parents are unable to construct the child
through the conventional biological means. Infertility is seen as a major
problem as kinship and family ties are dependent on progeny. Herein
surrogacy comes as a supreme saviour.

1
Smith Chandra, Surrogacy and India : A legal Perspective, NALSAR University of Law,
file:///C:/Users/Vaishnavi%20.LAPTOP-NB5VU17G/Downloads/SSRN-id1762401.pdf
(Last Accessed 18th September, 2019)

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SURROGACY - MEANING

The word „surrogate‟ has its origin from a Latin word „surrogatus‟, meaning
a substitute, that is, a person appointed to act in the place of another. 2 Hence
a surrogate mother is a woman who carries a child on behalf of another
woman, either from her ovum or from the implantation in her womb of a
fertilized egg from other woman. Black‟s Law Dictionary, defines surrogacy
as the process of carrying and delivering a child for another person. The
Britannica defines „surrogate motherhood‟ as the practice in which a woman
bears a child for a couple unable to produce children in the usual way. The
Report of the Committee of Inquiry into Human Fertilization and
Embryology or the Warnock Report (1984) termed surrogacy as the practice
whereby one woman carries a child for another with the intention that the
child should be handed over after birth. A standard definition of „surrogacy‟
is offered by the American Law Reports in the following manner: “…a
contractual undertaking whereby the natural or surrogate mother, for a fee,
agrees to conceive a child through artificial insemination with the sperm of
the natural father, to bear and deliver the child to the natural father, and to
terminate all of her parental rights subsequent to the child's birth.”3
According to another classification, surrogacy can be traditional, gestational
and donor surrogacy. Traditional surrogacy involves the artificial
insemination of the surrogate mother by using the sperm of the intended
father. Gestational surrogacy, on the other hand, involves the creation of an
embryo in a Petri dish and its implantation into the womb of the surrogate
who carries it to the term.4 Lastly, in donor surrogacy there is no genetic
relationship between the child and the intended parents as the surrogate is
inseminated with the sperm, not of the intended father, but of an outside
donor.

2
Ibid
3
Ibid
4
Ibid

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 CHAPTER -2

RIGHT TO REPRODUCTION- A CONSTITUTIONAL

RIGHT

1. Article 16(1) of the Universal Declaration of Human Rights 1948 says,

that “men and women of full age without any limitation due to race,
nationality or religion have the right to marry and start a family”.

2. The Judiciary in India has recognized the reproductive right of humans as

a basic right. Vide B. K. Parthasarthi v. Government of Andhra Pradesh5, the
Andhra Pradesh High Court upheld “the right of reproductive autonomy” of
an individual as an aspect of his “right to privacy” and agreed with the
decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma6 ,
which characterised the right to reproduce as “one of the basic civil rights of
man”.

3. In Javed v. State of Haryana7 , though the Supreme Court upheld the two
living children norm to debar a person from contesting a Panchayati Raj
election it abstain from stating that the right to procreation is not a basic
human right. Now, if reproductive right gets constitutional umbrella,
surrogacy which allows an infertile couple to exercise that right also gets the
same constitutional protection.

The moral issues associated with surrogacy are pretty obvious, yet of an eye-
opening nature. This includes the criticism that surrogacy leads to
commoditization of the child, breaks the bond between the mother and the
child, interferes with nature and leads to exploitation of poor women in
underdeveloped countries who sell their bodies for money. Sometimes,
psychological considerations may come in the way of a successful surrogacy
5
AIR 2000 A. P. 156
6
316 US 535
7
(2003) 8 SCC 369

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arrangement. As far as the legality of the concept of surrogacy is concerned it
would be worthwhile to mention that Article 16.1 of the Universal
Declaration of Human Rights 1948 says, inter alia, that “men and women of
full age without any limitation due to race, nationality or religion have the
right to marry and found a family”. The Judiciary in India too has recognized
the reproductive right of humans as a basic right.8

8
Izabela Jargilo, Regulating the Trade of Commercial Surrogacy in India, 15 J. INT'L BUS.
& L. 337, 360 (2016)

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 CHAPTER -3

POSITION OF ARTIFICIAL REPRODUCTIVE

TECHNIQUE IN UK, USA AND AUSTRALIA LEGAL
SYSTEM

In England, based on the recommendations of „Warnock Committee,‟9 the

Surrogacy Arrangements Act, 1985 was brought in to force.10 Under this Act
surrogacy arrangements are made legal and the Act prohibits advertising and
other aspects of commercial surrogacy. The Act prohibits giving or taking of
money or other benefit (other than expenses reasonably incurred) in
consideration of the making of the order or handing over of the child. 11 The
Surrogacy Arrangements Act, 1985, declares initiation and involvement in
commercial surrogacy agreements to be a criminal offence. Further, the
Human Fertilisation and Embryology Act, 1990, make surrogacy
arrangement unenforceable by or against any person making it. Under
English Law, surrogacy is legal if it involves payment only of expenses
reasonably incurred by the surrogate mother, which have to be determined by
parties. The contract is not binding on either of the parties.

In the United States of America also, commercial surrogacy seems prohibited

in many states. In the famous Baby M case12 , the New Jersey Supreme
Court, though allowed custody to commissioning parents in the “best interest
of the child”, came to the conclusion that surrogacy contract is antagonistic to
public policy. It must be noted that in the US, surrogacy laws are different in
different states. In USA, Gestational Surrogacy Act, 2004, deals with this
9
Report of the Committee of inquiry in to human fertilization and embryology (Chairman-
Dame Mary Warnock), Her Majesty‟s stationery office, 1984
10
The Surrogacy Arrangements Act 1985 in England is an Act to regulate certain activities
in connection with arrangements made with a view to women carrying children as surrogate
moth
11
Sec. 30 of Human Fertilization and Embryology Act 1990 (UK) provides for Parental
orders in favour of gamete donors
12
537 A.2d 1227

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aspect. The purpose of this Act is to lay down consistent standards and
procedural safeguards for the protection of all parties involved in a
gestational surrogacy contract in this State and to confirm the legal status of
the new born as a result of these contracts. These standards and safeguards
are meant to facilitate the use of this type of reproductive contract in accord
with the public policy of the State. Later Johnson v. Calvert13 , the American
judiciary took a libertarian approach. Through this case the Supreme Court
extended constitutional umbrella to surrogacy controls and gave them a legal
validity. The court held that the surrogacy contract involved free, informed
and rational choice by a woman to use her body. In Surrogacy Parenting
Associate v. Commonwealth of Kentucky14, the court propounded the
intension test for the determination of natural mother. In re Marriage of John
A15, the court held that even though the commissioning parents are not
biologically related to the child, they are still her lawful parents given their
initiating role as the intended parents in her conception and birth. Even after
separation of married couple who opted for artificial insemination, the
husband would still continue to be the father of the of the offspring thus
produced as held in another case of People v. Sorensen16 In Lamaritata v.
Lucas17 the court held, a person who gives sperm for a woman to conceive a
child by artificial insemination is not a parent. Thus, the sperm donor has no
legal rights. As to the statutory response, different states of America have
responded through legislation to the question of legalization of surrogacy.
Some states18 took a liberal approach and some totally shun their eyes

13
5 cal.4th 84, 19 cal.Rptr.2d 494, 851 P.2d 776
14
704 s.w. 2d 209(February 06,1986)
15
61 Cal.App.4th 1410 (1998)
16
68 Cal.2d 280 (1968)
17
So.2d 316 (2002)
18
Kentucky, Louisiana, Nebraska, and Washington, on the other hand, have taken a less
restrictive approach, passing legislation that voids only those surrogacy contracts that
provide for compensation to the surrogate. In contrast, Florida, New Hampshire, and
Virginia have adopted the minority approach by making them legal and enforceable but they
prohibit commercial surrogacy, with an exception of expenses incurred as a result of
pregnancy and childbirth.

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towards the validity of surrogacy contracts making them completely illegal19.
Surrogacy legislation in New Hampshire requires judicial preauthorization of
all surrogacy contracts subject to three conditions viz. informed consent by
parties, completion of psychological counselling and evaluation, absence of
unconscionable terms in the contract and orientation towards best interests of
child. In Australia, Kirkman sisters‟ case20 sparked much community and
legal debate and soon states in Australia attempted to settle the legal
complications in surrogacy. Now in Australia, commercial surrogacy is
illegal, contracts in relation to surrogacy arrangement is unenforceable and
any payment for soliciting a surrogacy arrangement is illegal.

In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which
provides that a child conceived through in vitro fertilization (IVF) and born
to a surrogate mother automatically becomes the legal child of the intended
parents at birth if certain conditions are met. Under the Act, the woman who
bears the child has no parental status.'21 The bill generated modest media
attention, but little controversy; it passed unanimously in both houses of the
legislature and was signed into law by the governor.' This mundane story of
the legislative process in action stands in sharp contrast to the political tale of
surrogacy that unfolded in the 1980s and early 1990s as the Baby M case left
its mark on American law.22 It was through the lens of Baby M that this
innovative use of reproductive technology was first scrutinized as an issue of
social, political, and legal interest.' Over the course of the litigation between
the intended parents, William and Elizabeth Stern, and the surrogate mother,
Mary Beth Whitehead, hostility toward commercial surrogacy arrangements

19
New York, North Dakota and Utah, the legislatures have taken a blanket approach,
deeming all surrogacy contracts to be void and unenforceable
20
In Victoria, Linda Kirkman agreed to gestate the genetic child of her older sister
Maggie(1988).
21
Elizabeth S. Scott, Surrogacy and the Politics of Commodification, 72 Law & Contemp.
Probs. 109 (2009)
22
Ibid

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hardened.23 Opponents of surrogacy-mostly feminists and religious groups-
argued that the contracts were baby-selling arrangements that exploited poor
women who either were coerced or did not understand the consequences of
their decisions. Opponents argued that surrogacy degraded the female
reproductive function and undermined the family. This framing of the
transaction as illegitimate commodification was adopted by the New Jersey
Supreme Court in Baby M and prevailed for several years thereafter, with far
reaching effects on legal regulation.24 By the early 1990s, many states had
enacted laws prohibiting or severely restricting surrogacy agreements. Some
observers predicted the end of this particular use of reproductive technology.
But that did not happen. In fact, the politics and social meaning of surrogacy
arrangements have slowly changed, and the alarm and hostility that
surrounded this issue have diminished substantially. An alternative frame has
emerged, in which altruistic surrogates (contractually bound and
compensated nonetheless) provide the "gift of life" to deserving couples who
otherwise would be unable to have children. News stories about surrogacy
arrangements in the past decade have tended to be upbeat, human-interest
tales describing warm relationships between surrogates and the couples for
whom they bear children - a far cry from the acrimonious battle between Ms
Whitehead and the Sterns over Baby M25. The political and judicial response
to surrogacy has also changed in recent years. In Illinois and other states, the
contemporary legislative approach has been largely pragmatic, driven by a
perception that parties will continue to enter these agreements and thus, that
it is important to have procedures that establish parental status in intended
parents." In the absence of statutory authority, several courts, including the
California Supreme Court, have also enforced gestational-surrogacy contracts

23
Ibid
24
Ibid
25
Ibid

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and have held that the intended parents can be named on the birth
certificate."26

BABY M-

Political philosophers offer two objections to the commodification of certain

transactions. The first focuses on coercion; exchanges that are driven by
severe inequality, ignorance, or dire economic necessity are problematic.
The second objection focuses on corruption and holds that the market has a
degrading effect on certain goods and practices. As the Baby M case
unfolded, both objections were aimed at surrogacy, effectively framing the
transactions as illicit commodification27. Opponents claimed that surrogacy
unfairly exploited poor women who unwillingly entered contracts that they
would come to regret." Critics also claimed that surrogacy degraded children
and women by treating children as commodities to be exchanged for profit
and women's bodies as childbearing factories; the arrangements also
degraded the mother-child relationship by paying women not to bond with
their children.'28 Surrogacy arrangements were not completely unfamiliar to
lawmakers or to the public in 1986, when the Baby M story first attracted
media attention. In the early 1980s, a few courts had addressed whether
surrogacy contracts were enforceable, and in 1986 a bill regulating (but
allowing) the enforcement of these novel arrangements was under
consideration in the New York legislature.' Surrogacy had also received some
media and academic attention. But the Baby M case-a dramatic and
emotional legal battle between a housewife who had dropped out of high
school and a couple with graduate degrees and professional careers who
sought to have a child with her assistance-focused national attention on the
issue and framed the practice as commodification.29 The outlines of the Baby

26
Ibid
27
Ibid
28
Ibid
29
Ibid

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M story are familiar. In February 1985, Mary Beth Whitehead and Bill Stern
executed the surrogacy contract, brokered by the Infertility Center of New
York and its director Noel Keane Days after Ms. Whitehead gave birth, she
delivered the baby to the Sterns (who named her Melissa), but she returned
the next day and told them that she "could not live without [the] baby."'
Shortly thereafter, Ms. Whitehead and her husband took the baby to Florida
to hide out with relatives.30 After Ms. Whitehead was apprehended and the
baby returned to the Sterns, Ms. Whitehead fought Mr. Stern's effort to
enforce the contract in a highly publicized and messy trial that stretched over
two months. At its end, Judge Harold Sorkow held the surrogacy contract
valid, ordering that Ms. Whitehead's parental rights be terminated and that
Mr. Stern receive sole custody; shortly thereafter, the judge entered an order
allowing Ms. Stern's adoption of Melissa. On appeal, the New Jersey
Supreme Court reversed the lower court, holding that the contract was
unenforceable under New Jersey statutory law and that it violated public
policy. The court found that the contract offended public policy because it
was effectively "the sale of a child," prohibited in this context for the same
reason that it was banned under state adoption law: because women needing
money might be coerced into giving up their children.' Moreover, the pre-
birth agreement by the mother to relinquish parental rights was explicitly
prohibited under the adoption statute. “The Court concluded that a surrogacy
contract could never be voluntary or informed, because a woman could not
know what it would mean to give up her baby."

Media coverage of the Baby M case was intense from the time the
Whiteheads fled with Melissa to Florida, and it persisted through the New
Jersey Supreme Court decision. This is not surprising. The case raised
compelling questions about the uncertain impact of a novel use of
reproductive technology on family structure, the nature of motherhood, the

30
Ibid

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welfare of children, and the role of law in this unfamiliar terrain. The story
also had powerful elements of human drama. Over the course of the trial,
reporters observed a shift in public attitudes." At the outset, the Sterns were
viewed sympathetically as an infertile couple eager to have a child, while Ms.
Whitehead was seen as an erratic woman who had reneged on her agreement.
But as the trial progressed, Ms. Whitehead increasingly was portrayed as a
victim, a working-class mother who was exploited and unfairly attacked by
powerful adversaries. Trial narratives, repeated in the media, may have
contributed to these shifts in attitude. Some observers were offended by the
depiction of Whitehead as a bad mother by Stern's experts, who questioned
her parenting abilities on the basis of her lifestyle, shaky finances, and failure
to provide intellectual stimulation to the child31.'

Opposition to surrogacy arrangements and sympathy for Ms. Whitehead were

generated by a disparate group of outspoken advocates and opinion leaders.
Politicians denounced the practice; New Jersey Governor Thomas Kean
appointed a task force to study surrogacy. Religious leaders played an
important role, most prominently the Conference of Bishops of the Catholic
Church. This group amplified a 1987 Papal statement on reproductive
technologies arguing that surrogacy contracts were baby-selling arrangements
that undermined the family, degraded women, and harmed children. Child
welfare groups focused on the threat of harm to children if babies could be
exchanged for cash, and adoption advocates argued that allowing surrogacy
would erode the prohibition against purchasing babies for adoption.32

Feminists and liberals were among the most active advocates, unifying
against surrogacy as the Baby M litigation played out. Early in the trial,
feminists acknowledged that surrogacy was a hard issue; news reports
described them as "torn between support [of] a women's right to use her body

31
Ibid
32
Ibid

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as she chooses" and concerns about the exploitation of women." But feminist
columnists advocated vehemently in support of Whitehead and against
surrogacy, criticizing the Sterns, Judge Sorkow, and Noel Keane, the broker."
Moreover, women's advocates became increasingly angry at the attacks on
Ms. Whitehead by the Sterns' lawyers and mental-health experts, believing
that the emphasis on her lifestyle and financial problems was infused with
class bias and the gender discrimination typical of child-custody disputes.'
Ms. Whitehead was, in their view, "being held to an unfair standard of
motherhood." Feminists also targeted intermediaries such as Noel Keane,
who charged high fees for arranging the contracts. As one feminist put it,
these brokers, who exploited poor women with few options, were "the pimps
of the surrogacy movement."" By the time the trial concluded with a
judgment upholding the contract, feminists and women's groups presented a
united front in opposition to surrogacy; few defended the judge's decision. On
the last day of trial testimony, prominent women released a statement
supporting Ms. Whitehead's right to keep the child and denouncing
surrogacy." Prominent feminists also submitted an amicus brief to the New
Jersey Supreme Court arguing for reversal of the trial-court decision, as did
the New Jersey Catholic Congress, the Family Research Council, and the
National Committee for Adoption." Amicus briefs arguing for reversal of the
trial-court decision greatly outnumbered those that favoured upholding the
decision. Over the course of the Baby M litigation, advocates in the political
arena effectively framed surrogacy as illegitimate commodification. First, the
characterization of the surrogacy transaction as baby selling was invoked
repeatedly by opponents; ultimately it was adopted by the New Jersey
Supreme Court and by lawmakers in other states.' Surrogacy, it was argued,
threatened not only the specific children who were produced through these
arrangements, but the social value of children generally. Second, opponents
also argued that these arrangements exploited poor women who did not
understand the serious consequences of their decisions to bear children for

14 | P a g e
the benefit of wealthier, more-powerful men." The intense focus on surrogacy
over the course of the trial and appeal profoundly influenced public and
political opinion about these arrangements. At the outset surrogacy contracts
were unfamiliar, but were likely viewed by most people with curiosity rather
than alarm. Over time, opposition to surrogacy grew in the political arena; the
New Jersey Supreme Court decision simply reinforced and solidified the
emerging social meaning of surrogacy as an undesirable commercial
arrangement that involved the selling of children and exploitation of women.

The Aftermath of Baby M-

It would be hard to exaggerate the impact of Baby M on the legislative

regulation of surrogacy arrangements in the late 1980s and early 1990s.
When the case broke in 1987, no state had enacted a statute regulating
surrogacy arrangements; those that began to consider the issue in the mid-
1980s were inclined to regulate rather than to prohibit the contracts." But by
December of 1987, even before the New Jersey Supreme Court decided Baby
M, seventy bills concerning surrogacy had been introduced in twenty-seven
legislatures, and by late 1988, six states had passed laws banning the
agreements or declaring them void-often with little opposition. As Baby M
played out, surrogacy opponents framed the transactions as baby-selling and
exploitation of women, and legislatures responded to advocates' calls for
restriction of the practice. Almost all the laws passed during the post-Baby M
period either prohibited the agreements or discouraged them by disallowing
payment to the surrogate or to intermediaries or by giving surrogates the right
to rescind after the birth of the baby. In some states, lawmakers initiated the
legislation, often with little apparent involvement by lobbying groups."33 In
other states, such as New York, a coalition of religious groups, adoption and
child-welfare advocates, and women's groups actively lobbied for laws that
prohibited or discouraged the practice." In New York, where Noel Keane's
33
Ibid

15 | P a g e
agency had brokered the Whitehead Stern contract, the legislature changed
course mid-stream in response to the Baby M decision. In early 1987, a bill
that had been aimed at protecting women and children against exploitation
while ensuring judicial enforcement of surrogacy contracts that met statutory
requirements was making its way quietly through the legislature. By June,
this bill was withdrawn in the face of intense opposition from a coalition of
religious organizations and women's groups. A task force created by
Governor Mario Cuomo, an opponent of surrogacy, held hearings dominated
by surrogacy opponents. The task force issued a report that referred
frequently to Baby M and emphasized the threat posed by contracts
commodifying children and exploiting poor women. The report proposed
statutory reform banning surrogacy and subjecting brokers to criminal
penalties.34

In the wave of legislation that followed Baby M, little attention was directed
toward the distinction between traditional and gestational surrogacy35. This
may not be surprising, in that Baby M herself was the product of traditional
surrogacy, and gestational surrogacy was not common in the 1980s." Most
statutes enacted in the late 1980s and early 1990s applied generically to all
surrogacy contracts, as did the ABA Model Act and the Uniform Act.36 The
difference between gestational- and traditional-surrogacy contracts has
become an important legal distinction. In the absence of statutory authority,
numerous courts have directed that intended parents, and not the surrogate,
be named on the birth certificate in gestational arrangements. Moreover, the
new Uniform Parentage Act and most of the surrogacy statutes enacted since
2000 deal exclusively with requirements for enforcement of gestational-
surrogacy agreements, leaving traditional arrangements in a legal void.37

34
Ibid
35
Ibid
36
Ibid
37
Ibid

16 | P a g e
Second wave of Surrogacy Laws38 –

The recent statutory reforms in surrogacy law have been driven largely by
pragmatic concerns. As couples eager to have children have increasingly
shown themselves ready to turn to surrogates, even when the agreements are
of uncertain legality, lawmakers have recognized the potential harms posed
by the lack of regulation. In a legal vacuum, and even when surrogacy
contracts are prohibited, a host of legal problems can arise regarding the
rights and obligations of the participants toward the child. Along with the risk
of acrimonious custody litigation between the surrogate and the intended
parents, costly uncertainty can result when the intended parents‟ divorce or
decline to accept the child, perhaps because the baby is born with a medical
condition or disability.39 Against this background, many lawmakers
concluded that because surrogacy arrangements would continue with or
without facilitating legislation, the appropriate legal response was to establish
rules under which parental status was clearly prescribed. The Illinois
legislation is representative. In 2003, the Illinois Supreme Court implored the
legislature to safeguard the interests of children born as a result of assisted
reproduction by clarifying the parental status of the involved adults.' The
legislature responded in 2004 by passing the Gestational Surrogacy Act
(GSA). Like other contemporary laws, this statute limits enforcement to
gestational (and not traditional) surrogacy contracts and mandates that the
intended parents automatically become the child's legal parents at birth.91
Also like other contemporary statutes, the GSA restricts enforcement to
arrangements in which the surrogate has given birth before and the intended
parents have a medical need for the surrogacy. But the Illinois law creates a
more efficient (and less expensive) process than other states by providing a
pre-birth registration process rather than a judicial proceeding to establish the

38
Ibid
39
Ibid

17 | P a g e
status of the intended parents40. An account of the 2004 legislative process in
Illinois illustrates how much the legal and political landscape had changed
since the days of Baby M. No reports indicate that the bill was challenged as
promoting baby selling or that it was criticized for being exploitative of
women who served as surrogates. Indeed, one is hard-pressed to find
opposition to the proposed Illinois law.' Advocating for the bill were parents'
groups, the Illinois State Bar Association, and attorneys who practiced in the
area of adoption and assisted reproduction.41 News coverage was also
positive, with reports of warm relationships between surrogates and grateful
couples, and explanations of how the new law would avoid the "horror
stories" in which surrogates or intended parents backed out of agreements.
The bill was passed without opposition in both houses of the legislature.
Despite the equanimity with which the GSA was enacted in Illinois,
opposition to surrogacy arrangements continues in some quarters. In 2008,
the Minnesota legislature passed a bill almost identical to the Illinois statute,
but in the face of stiff opposition from social and religious conservatives,
including several anti-abortion groups. The Catholic Church criticized the bill
in measured terms, but the Minnesota Family Council called the legislation
"legalized baby-selling" and charged the statute with promoting single-parent
and same-sex-parent households.' Lobbying in favor of the bill were the
Minnesota State Bar Association and Resolve, an increasingly active
organization of adults dealing with infertility problems. The legislature voted
almost 2-1 in favor of the bill-which was then vetoed by Republican
Governor Tim Pawlenty.42 As in Illinois, no evidence indicates that any
women's organizations or civil-liberties groups participated in the legislative
process in Minnesota. The history of surrogacy regulation over the past
twenty years presents several puzzles. How did one case generate such
intense hostility and alarm about an arrangement that had attracted little
40
Ibid
41
Ibid
42
Ibid

18 | P a g e
attention until that time? Women's groups and social conservatives seldom
ally on matters of reproductive choice. How did that alliance form and why
was it so short-lived? And what are the forces that altered the social meaning
and political dynamic of surrogacy in a relatively short period? The
discussion that follows is intended to unravel these puzzles and to shed some
light on the social and political framing and reframing of surrogacy.43

43
Ibid

19 | P a g e
 CHAPTER - 4

INDIAN JURISPRUDENCE ON SURROGACY

The world's second and India's first IVF (in vitro fertilization) baby,
Kanupriya alias Durga was born in Kolkata on October 3, 1978 about two
months after the world's first IVF boy, Louise Joy Brown born in Great
Britain on July 25, 1978. Since then the field of assisted reproductive
technology (ART) has developed rapidly.

The growth in the ART methods is recognition of the fact that infertility as a
medical condition is a huge impediment in the overall wellbeing of couples
and cannot be overlooked especially in a patriarchal society like India. A
woman is respected as a wife only if she is mother of a child, so that her
husband's masculinity and sexual potency is proved and the lineage
continues. Some authors put it as follows: The parents construct the child
biologically, while the child constructs the parents socially. The problem
however arises when the parents are unable to construct the child through the
conventional biological means. Infertility is seen as a major problem as
kinship and family ties are dependent on progeny. Herein surrogacy comes as
a supreme saviour. In India, according to the National Guidelines for
Accreditation, Supervision and Regulation of ART Clinics, evolved in 2005
by the Indian Council of Medical Research (ICMR) and the National
Academy of Medical Sciences (NAMS), the surrogate mother is not
considered to be the legal mother. The birth certificate is made in the name of
the genetic parents. The US position as per the Gestational Surrogacy Act
2004 is pretty similar to that of India.

The legal issues related with surrogacy, as we have seen, are very complex
and need to be addressed by a comprehensive legislation. After a long wait
for so many years, the Indian Council of Medical Research (ICMR) has come
out with a draft Assisted Reproductive Technology (Regulation) Bill and

20 | P a g e
Rules 2008. The draft Bill contains 50 clauses under nine chapters. The Bill
acknowledges surrogacy agreements and their legal enforceability. This will
ensure that surrogacy agreements are treated on par with other contracts and
the principles of the Indian Contract Act 1872 and other laws will be
applicable to these kinds of agreements. The Bill provides that single persons
may also go for surrogacy arrangements.

The Bill provides that a foreigner or foreign couple not resident in India or a
non-resident Indian individual or couple, seeking surrogacy in India, shall
appoint a local guardian who will be legally responsible for taking care of the
surrogate during and after pregnancy till the child is delivered to the foreigner
or foreign couple or the local guardian. It is further provided that the
commissioning parents or parent shall be legally bound to accept the custody
of the child irrespective of any abnormality that the child may have, and the
refusal to do so shall constitute an offence. A surrogate mother shall
relinquish all parental rights over the child. The birth certificate in respect of
a baby born through surrogacy shall bear the name(s) of genetic
parents/parent of the baby. The Bill also provides that a child born to a
married couple or a single person through the use of ART shall be presumed
to be the legitimate child of the couple or the single person, as the case may
be. If the commissioning couple separates or gets divorced after going for
surrogacy but before the child is born, then also the child shall be considered
to be the legitimate child of the couple. The Bill further provides that a
couple or an individual shall not have the service of more than one surrogate
at any given time. A couple shall also not have simultaneous transfer of
embryos in the woman and in a surrogate.

Chapter I of the Bill contains definitions. Chapter II provides for constitution

of a National Advisory Board for ART and State Boards for ART for laying
down policies, regulations and guidelines, and Registration Authorities for
registering ART clinics. Chapter III lays down procedure for registration of

21 | P a g e
ART clinics. Chapter IV prescribes duties of ART clinics. One of the duties
is to make couples or individuals, as the case may be, aware of the rights of a
child born through the use of ART. The duties also include the obligation not
to offer to provide a couple with a child of a pre-determined sex. Chapter V
provides for sourcing, storage, handling and record-keeping for gametes,
embryos and surrogates. Chapter VI regulates research on embryos. Chapter
VII discusses rights and duties of patients, donors, surrogates and children.
Chapter VIII deals with offences and penalties therefor. Chapter IX is titled
„Miscellaneous‟ and includes power to search and seize records etc. and the
power to make rules and regulations. This legislation is intended to be in
addition to, and not in derogation of, other relevant laws in force. The Bill
neither creates, nor designates or authorizes any court or quasi-judicial forum
for adjudication of disputes arising out of surrogacy, ART and surrogacy
agreements. Disputes may, inter alia, relate to parentage, nationality, issuance
of passport, grant of visa. There is already a conflict on adoption and
guardianship as non-Hindus cannot adopt in India. Such disputes need to be
resolved before a child is removed from India to a foreign country. The draft
Bill prepared by the ICMR is full of lacunae, nay, it is incomplete. However,
it is a beacon to move forward in the direction of preparing legislation to
regulate not only ART clinics but rights and obligations of all the parties to a
surrogacy including rights of the surrogate child.

22 | P a g e
 CHAPTER -5

LAWS IN PLACE IN PLACE AND LEGAL ISSUES

A child born through surrogacy must be adopted by the genetic (biological)

parents unless they can establish through genetic (DNA) fingerprinting (of
which the records will be maintained in the clinic) that the child is theirs.'
However, it may be clarified that the legal process of adoption in India by
any foreign parents is itself not possible since the Guardian and Wards Act
1890 permits guardianship orders only and adoption processes have to follow
in the respective countries of the nationality or permanent residence of the
proposed adoptive parents. Hence, no legal adoption can take place in India
by foreign parents except those who are Hindus by religion and are governed
by Hindu laws in this regard.

It may also be pointed out that the Indian law on the subject of adoption,
entitled 'the Hindu Adoption and Maintenance Act 1956', is an Act to amend
and codify the law relating to adoptions and maintenance among Hindus
only. Likewise, 'the Hindu Minority and Guardianship Act 1956', is an Act to
amend and codify certain parts of the laws relating to minority and
guardianship among Hindus. These personal laws governing Hindus permit
adoption as laid down in the said laws.

The Indian law applicable in the present case is the Guardians and Wards Act
1890 (GWA) which is the legislation meant to consolidate and amend the law
relating to guardians and wards in India. This is because under the Hindu
Minority and Guardianship Act 1956 (HMGA) and under the Hindu
Adoptions and Maintenance Act 1956 (HAMA) only those persons in India
who are Hindu by religion can adopt or be appointed as guardians of Hindu
minor children.

23 | P a g e
In the case of normal inter-country adoptions, to enable any foreign adoptive
parents to take a Hindu child in adoption from India, such parents would be
required to obtain a guardianship order from the Court of the Guardian Judge
in the appropriate jurisdiction within India and thereafter obtain adoption
orders in accordance with the law applicable to such foreign parents in the
country of their nationality. The position therefore in this regard can be
summed up as follows:

(a) In so far as the law in India is concerned, only persons who are Hindus by
religion can adopt children in India since s 2 of the HAMA and s 3 of HMGA
make it explicitly clear that the respective Acts are applicable only to those
persons who are Hindus by religion.

(b) As per the provisions of the GWA applicable to all persons in India, the
adoptive parents are permitted to be appointed as guardians of minor children
in India and are thereafter free to adopt them in the country of their
nationality to which they are allowed to take the children for adoption by the
Guardian Judge in India.

(c) It is relevant to quote and extract Sections 7, 8, 9, 10, 11, 13, 17 and 26 of
the GWA which are relevant in the present case. 44

India is called the „world capital of surrogacy‟. Surrogacy generates 2 billion

dollars annually in India. Despite India being a hub of surrogacy, there are no
laws to regulate it. However, commercial surrogacy has been held legal in
India as witnessed in the case of Baby Manaji Vs. Union of India 45 with the
Supreme Court judgment. Similarly, in the case of Jan Balaz vs. Anand

44
Rajya Sabha Report, One Hundred Second Report, The Surrogacy (Regulation) Bill, 2016,
DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON
HEALTH AND FAMILY WELFARE
45
WRIT PETITION (C) NO. 369 OF 2008

24 | P a g e
Municipality46, the Gujarat High Court reiterated the apex court judgment
legalizing commercial surrogacy in India and further elucidated that
commercial surrogacy was held legal in India as there was no law prohibiting
womb lending or surrogacy agreements. Both these judgments directed for
the enactment of law on surrogacy in India. Consequent to this, the ICMR
drafted the National Guidelines for Accreditation, Supervision and
Regulation of ART Clinics in India in 2005 as the first ever national
guidelines for laying down standards of conduct for surrogacy in India. Later,
the draft ART Bill was formulated in 2008, reviewed and redrafted in 2010
and 2014 but was never passed as law.47

The Law Commission, however, recommended for legalizing altruistic

surrogacy and to ban commercial surrogacy. It recommended measures for
better protection of rights of surrogate mother, securing full informed consent
from surrogate mother, insurance cover, life insurance cover, right to abortion
or medical termination of surrogate pregnancy, right to privacy and other
health safeguards. The Commission also recommended for financial support
for surrogate child, legitimacy, parentage right to registration of birth
certificate of the surrogate child among others. It further recognized the fact
that the legal issues related with surrogacy were very complex and needed to
be addressed by a comprehensive legislation. The Ministry of Home Affairs
has attempted to control the misuse of surrogacy services by foreign nationals
through their Guidelines introduced in July, 2012. These guidelines imposed
certain restrictions by redefining the eligibility criteria exclusively for the
foreign couples commissioning surrogacy in India which intended to prohibit
foreigners, homosexuals, and singles from commissioning surrogacy in India
and permit only such heterosexual married couples with a marriage subsisting

46
AIR 2010 Guj 21
47
Rajya Sabha Report, One Hundred Second Report, The Surrogacy (Regulation) Bill, 2016,
DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON
HEALTH AND FAMILY WELFARE

25 | P a g e
for two years or more to commission surrogacy in India. Medical visa for
commissioning of surrogacy in India was stopped through the Notification
No. 2502/74/2011-F-1 dated 9th July, 2012. The Punjab HC upheld the
Home Ministry guidelines as a binding law. Restrictions on surrogacy were
also provided in the Ministry of Commerce, Notification No. 25/ 2015-2020
dated 26th October, 2015 prohibiting the import of human embryo except for
the purpose of research. Another Notification (No. 25022/74/2011-F-1) dated
3rd November, 2015 of the Ministry of Home Affairs prohibited foreign
nationals, PIO and OCI card holders from commissioning surrogacy in
India48. The Department of Health Research notification (No.
250211/119/2015-HR) dated 4th November, 2015 validated the notification
of the Home Ministry banning commercial surrogacy in India. State
Governments were accordingly advised in this matter.49

The Surrogacy (Regulation) Bill, 2016 proposes to regulate surrogacy in

India by establishing National Surrogacy Board at Central Level, State
Surrogacy Boards and Appropriate Authority in States and Union Territories.
In a nutshell, the proposed legislation ensures effective regulation of
surrogacy, prohibit commercial surrogacy and allow ethical surrogacy to the
needy infertile Indian couples. According to the Department of Health
Research, surrogacy has been in practice in India for last few decades.
However, there is no legislation to regulate it. This has resulted in
malpractices ranging from commercialization of surrogacy, trade in human
embryos, exploitation of surrogate mothers and abandonment of children
born through surrogacy. The issue of surrogacy including the exploitation of
surrogate mothers and need for regulation in surrogacy has been raised time
and again in the Parliament since 2010. As on date, there are 11 such

48
Rajya Sabha Report, One Hundred Second Report, The Surrogacy (Regulation) Bill, 2016,
DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON
HEALTH AND FAMILY WELFARE
49
Ibid

26 | P a g e
Parliament Assurances pending on the matter. The Law Commission of India
has strongly recommended for prohibiting commercial surrogacy. Hon‟ble
Supreme Court has been intimated of the commitment of the Government to
bring the legislation in this regard. As per the Affidavit filed in the Hon‟ble
Supreme Court of India, the Government intends to ban commercial
surrogacy through a proper legislation.50

As per the background note received from the Department of Health

Research, the proposed Bill appears to have been conceived on the basis of
following parameters laid to achieve the following objectives:

• The Bill proposes to allow altruistic ethical surrogacy to intending infertile

Indian married couple between the age of 23-50 years and 26-55 years for
female and male respectively.

• The couples should be legally married for at least five years and should be
Indian citizens.

• The couples should not have any surviving child biologically or through
adoption or through surrogacy earlier except when they have a child and who
is mentally or physically challenged or suffer from life threatening disorder
with no permanent cure.

• The couples shall not abandon the child, born out of a surrogacy procedure
under any condition.

• The child born through surrogacy will have the same rights as are available
for the biological child.

• The surrogate mother should be a close relative of the intending couple and
should be between the age of 25-35 years. She will carry a child which is

50
Ibid

27 | P a g e
genetically related to the intending couple and can act as surrogate mother
only once.

• An order concerning the parentage and custody of the child to be born

through surrogacy, is to be passed by a court of the Magistrate of the first
class.

• An insurance coverage of reasonable and adequate amount shall be ensured

in favour of the surrogate mother.51

The Bill provides for setting up of a National Surrogacy Board and State
Surrogacy Boards which shall exercise the powers and shall perform
functions conferred on the Board under this Act. The National Surrogacy
Board shall consist of the Minister in-charge of the Ministry of Health and
Family Welfare, as the Chairperson, Secretary to the Government of India in-
charge of the Department dealing with the surrogacy matter, as Vice-
Chairperson and three women Members of Parliament, of whom two shall be
elected by the House of the People and one by the Council of State as
Members. The total number of members of National Surrogacy Board will be
24.

• The National Surrogacy Board and State Surrogacy Board shall be the
policy making bodies and Appropriate Authority will be the implementation
body for the Act. The total number of members of State Surrogacy board will
be 24.

• The Appropriate Authority shall comprise of an officer of or above the rank

of the Joint Director of Health and Family Welfare Department, as
Chairperson and an eminent woman representing women‟s organization, an
officer of Law Department of the State or the Union Territory concerned not

51
Ibid

28 | P a g e
below the rank of a Deputy Secretary, and an eminent registered medical
practitioner, as members.

• No person, organization, surrogacy clinic, laboratory or clinical

establishment of any kind shall undertake commercial surrogacy, abandon the
child born out of surrogacy, exploit the surrogate mother, sell human embryo
or import embryo for the purpose of surrogacy. Violation to the said
provision shall be an offence punishable with imprisonment for a term which
shall not be less than ten years and with fine which may extend to ten lakh
rupees.

• The surrogacy clinics shall have to maintain all records for a period of 25
years.

• There will be Transitional provision under this Act providing a gestation

period of ten months from the date of coming into force of this Act to protect
the wellbeing of already existing surrogate mothers.52

52
Rajya Sabha Report, One Hundred Second Report, The Surrogacy (Regulation) Bill, 2016,
DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON
HEALTH AND FAMILY WELFARE

29 | P a g e
 CHAPTER - 6

Analysis of Artificial Reproduction Technology (Regulation)

Bill, 2010

The Artificial Reproductive Technology (Regulation) Bill, 2010 defines

surrogacy as an arrangement in which a woman agrees to a pregnancy,
achieved through assisted reproductive technology, in which neither of the
gametes belong to her or her husband, with the intention of carrying it to term
and handing over the child to the person or persons for whom she is acting as
surrogate; and a surrogate mother is a woman who agrees to have an embryo
generated from the sperm of a man who is not her husband, and the oocyte
for another woman implanted in her to carry the pregnancy to full term and
deliver the child to its biological parents.53 The Bill empowers a National
Advisory Board to act as the regulatory body laying down policies and
regulations. It also seeks to set up State Advisory Boards that are, in addition
to advising state governments, charged with monitoring the implementation
of the provisions of the Bill. The Bill lays down conditions that the surrogate
mothers have to meet and obtaining relevant information, informing all
parties involved about their rights and obligations. The Bill specifies what is
and is not allowed regarding these topics.54 In practice this entails that ART
clinics are not allowed to provide any information about surrogate mothers or
potential surrogate mothers to any person. This creates a problem for
intended parents since they have to turn to a middleman in order to find a
surrogate mother The Bill draws clear lines to avoid these problems:

 The donors should relinquish parental rights at the time of donation, and
the surrogate mother, shortly after birth.

53
For more information see, www.heal-india.com/sites/default/files/sep-oct.pdf, on 10
September 2012
54
ART (Regulation) Bill 2010, n. 2, Chapter V, pg. 20-35

30 | P a g e
 Traditional surrogacy is no longer allowed. The reason for this is that when
the surrogate is also the genetic mother the risk of legal complications
increases

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

 For the same group, it is also mandatory to be able to document their

ability to take the new born back to their home country with them.

 Interestingly, the Bill allows unmarried couples and individuals to engage

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

 The surrogate baby will be recognized as the legitimate child of the

commissioning couple even if they divorce or become separated, with the
child‟s birth certificate carrying both genetic parents‟ names.

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

The Rules of the Bill assume that ART is being used only by heterosexual
infertile couples. The ART Bill, 2010 has provided for many informed
consent forms to be filled and records to be kept. But it does not require that
adequate information be given to the surrogate mother about the possible
side-effects.55 Registration of surrogates with a sperm bank further underlines
the fact that the surrogate is seen as just another component of the
technology. Thus, a Bill that is meant to safeguard the provider and to

55
The Assisted Reproductive Technologies (Regulation) Bill-2010, Indian Council of
Medical Research (ICMR), Ministry of Health &Family Welfare, Govt. of India, p. 4

31 | P a g e
commissioning couples does not seem to protect the rights of the surrogate.
She is the most marginalized and vulnerable one in this triad. Therefore,
surrogacy is both a threat and an opportunity. On the one hand it gives
infertile couples and surrogate mothers the possibility to fulfil their desires: a
child and the opportunity to take better care of their family respectively. On
the other hand there is a risk that with the commoditization of children and
parenthood, women are exploited and turned into baby producers.

Rights of the Surrogate Mother under the ART Bill, 2010 provisions:

According to the provisions of the ART Bill, 2010 there are so many rights
has been provided to the surrogates.

- The surrogate mother will receive monetary compensation from the couple
or individual, as the case may be, for agreeing to act as such surrogate.

- No woman less than twenty one years of age and over thirty five years of
age shall be eligible to act as a surrogate mother under this Bill, provided that
no woman shall act as a surrogate for more than five successful live births in
her life, including her own children.

- A surrogate mother shall, in respect of all medical treatments or procedures

in relation to the concerned child, register at the hospital or such medical
facility in her own name, clearly declare herself to be a surrogate mother, and
provide the name or names and addresses of the person or persons, as the
case may be, for whom she is acting as a surrogate, along with a copy of the
certificate.

- A surrogate mother shall be given a certificate by the person or persons who

have availed of her services, stating unambiguously that she has acted as a
surrogate for them.

32 | P a g e
- If the first embryo transfer has failed in a surrogate mother, she may, if she
wishes, decide to accept on mutually agreed financial terms, at most two
more successful embryo transfers for the same couple that had engaged her
services in the first instance. No surrogate mother shall undergo embryo
transfer more than three times for the same couple.

- The person or persons who have availed of the services of a surrogate

mother shall be legally bound to accept the custody of the child / children
irrespective of any abnormality that the child / children may have, and the
refusal to do so shall constitute an offence under this Bill.

- All information about the surrogate shall be kept confidential and

information about the surrogacy shall not be disclosed to anyone other than
the central database of the Department of Health Research, except by an
order of a court of competent jurisdiction.

- No assisted reproductive technology clinic shall provide information on or

about surrogate mothers or potential surrogate mothers to any person.

- In the event that the woman intending to be a surrogate is married, the

consent of her spouse shall be required before she may act as such surrogate.

- Only Indian citizens shall have a right to act as a surrogate, and no ART
bank/ART clinics shall receive or send an Indian for surrogacy abroad56.

The commissioning parent shall ensure that the surrogate mother and the
child she deliver are appropriately insured until the time the child is handed
over to the commissioning parent or any other person as per the agreement
and till the surrogate mother is free of all health complications arising out of
surrogacy. So, these are the certain rights which lie with the surrogate under
the ART Bill, 2010.

56
Supra Note 10

33 | P a g e
Commissioning Parents:

The Commissioning Parents, sometimes also called the intended parents. The
intended parents opting for surrogacy can be Indians Non-Resident Indians
(NRIs) or Foreigners. In India, surrogacy is increasingly becoming a popular
and well-accepted practice amongst childless couples; most of such
Commissioning Parents hail from the creamy layer of the society who can
bear the huge cost of surrogacy57. India is emerging as a leader in
international surrogacy and a destination in surrogacy-related fertility
tourism. Indian surrogates have been increasingly popular with fertile couples
in industrialized nations because of the relatively low cost. Indian clinics are
also becoming more competitive, not just in the pricing, but in the hiring and
retention of Indian females as surrogates58. Clinics charge exorbitant amount
for the complete package, including fertilization, the surrogate's fee, and
delivery of the baby at a hospital, including the costs of flight tickets, medical
procedures and hotels.

57
Gail Dutton, A Matter of Trust: The Guide to Gestational Surrogacy, Clouds Publishing,
1997, p. 217. This book is a step-by-step guide to surrogate parenting
58
Ashley Dyson, Standing in Two Places: A New Landscape of Motherhood, Aberdeen Bay
Publishing, 2009, p.168.

34 | P a g e
 CHAPTER -7

Legal Issues Related to Surrogacy: International Perspective

In contemporary world, a parent‟s surrender of a child for a fee, known as

baby selling, is a crime all over the world. Many countries have regulations
limiting or prohibiting compensation of intermediaries related to the transfer
of child59. Although, gestational surrogacy is (partially) legal in several
countries around the globe, in most jurisdictions it is not possible going to
another country to avoid the local prohibition is not always option. The
surrogacy map of the world gives better understanding of the provisions to
learn the laws across the world. The different (sub) continents are discussed
below.

United States of America

In this country an estimated 25,000 surrogates babies were born in the US

from 1996 to 2007. The payment made for the surrogates to US $20,000 and
US $25,000. So, many states allow the surrogacy there have been proper laws
on that after their commercialization60.

Europe

In Europe, although surrogacy is legal only in the United Kingdom but no

commercial agreements are allowed and surrogate will receive only expenses.
In the European Union countries, only married couple will take participate in
the surrogacy agreement. However, Russia and Ukraine are the only
European countries where surrogacy is fully legalized. Foreign couples are
allowed to pursue surrogacy arrangements in these countries but countries

59
Martha A Field, Surrogate Motherhood, Harvard University Press, 1988, p. 224. As Field
explains so vividly, the problem is not an absence of law but an excess of available law
including contract law, criminal laws against baby selling, adoption laws, laws governing the
rights of sperm donors, or those establishing the rights of unmarried biological parents.
60
Supra Note 58

35 | P a g e
like Germany, Sweden, Norway and Italy banned all forms of the
surrogacy61.

Asia

In Asia though there is certain reluctance in the surrogacy procedure. There

are many unclear regulating laws on surrogacy in various countries like
Thailand, Malaysia and Philippines. In India, the parliament passes the
Assisted Reproductive Technology (Regulation) Bill & Rules, 2010 which
stated that surrogate mothers may receive the money for carrying child and
pregnancy expenses. However, in Japan there are no laws to regulate the
surrogacy and in China Gestational surrogacy is banned according to their
laws62.

Oceania

In the Oceania, Australia state Queensland banns all forms of surrogacy.

While, in other states of the Australia commercial surrogacy is prohibited,
except altruistic surrogacy. However, in New Zealand commercial surrogacy
is banned63.

61
Ibid
62
Ibid
63
Ibid

36 | P a g e
 CHAPTER - 8

CASE STUDIES

The Case of Baby Manji: A Legal Limbo Causes Great Delay

The story of Baby Manji further demonstrates the kinds of bioethical

dilemmas that commercial surrogacy rises. Baby Manji's birth to a surrogate
sparked a controversy about how to best determine the legal parentage of a
baby born to a surrogate and whether it was wise to allow the commercial
surrogacy market to grow unfettered by regulations. Born in 2008 to a
surrogate mother in India, the media regularly referred to her as “Baby
M.”64(The Baby M. case from India discussed here should not be confused
with the Baby M. case that occurred three decades ago in New Jersey.)65 The
Baby Manji case was controversial, bringing up novel issues and
demonstrating gaps in the current surrogacy laws and regulations. In 2007,
Baby Manji's intended parents, Ikufumi and Yuki Yamada, travelled from
their home in Japan to the Akanksha Infertility Clinic in Anand, Gujarat66, to
arrange for a gestational surrogacy with an Indian surrogate. Akanksha
Infertility Clinic paired the Yamadas with an Indian woman, Pritiben Mehta,
who agreed to serve as their surrogate67. Pritiben Mehta was from
Ahmadabad, Gujarat, and had two children of her own.68 Under the Yamadas'
agreement with the Akanksha Infertility Clinic, Pritiben Mehta would be
implanted with an anonymous donor egg fertilized by Ikufumi's sperm 69.
Under the contract that the Yamadas and the gestational surrogate signed,

64
See Dhananjay Mahapatra, Baby Manji's Case Throws Up Need For Law On Surrogacy,
TIMES OF INDIA, Aug. 25, 2008, http:// articles.timesofindia.indiatimes.com/2008-08-
25/india/27946185_l_surrogacy-agreements-surrogate-mother-surrog ate-contract.
65
In re Baby M, 537 A.2d 1227, 1237 (N.J. 1988)
66
Ibid
67
Commercial Surrogacy and Fertility Tourism in India: The Case of Baby Manji, KENAN
INST. FOR ETHICS AT DUKE UNIV., (2009),
http://www.duke.edu/web/kenanethics/CaseStudies/BabyManji.pdf
68
Supra
69
Supra

37 | P a g e
Pritiben Mehta would carry the baby to term and then relinquish all rights
and responsibilities for the baby to the Yamadas.70 However, the Yamadas
divorced one month prior to Baby Manji's birth, which complicated the legal
determination of her rightful parents.71 The intended father, Ikufumi Yamada,
still wished to raise Baby Manji, but the intended mother Yuki Yamada did
not72. First, Ikufumi Yamada petitioned the Japanese embassy in India for a
Japanese passport for Baby Manji, but the embassy would not issue the baby
a Japanese passport because of Japan's requirement of birth citizenship73.
Then Ikufumi Yamada approached the Indian embassy for an Indian passport
for Baby Manji in order to take the baby back to Japan. However, Indian law
did not recognize Ikufumi Yamada's status as a single adoptive father74.
Thus, the Indian embassy was unable to issue a passport for the baby
because, in India, a child is issued a passport based upon the child's mother's
citizenship.75 None of the potential mothers the surrogate, the intended
mother, or the egg donor would claim Baby Manji as her own76. While the
city of Anand issued a birth certificate for Baby Manji, indicating that
Ikufumi Yamada was her father77, the slot for the name of Baby Manji's
mother remained blank78. Although Ikufumi Yamada was the biological
father of Baby Manji, he now confronted the potential need to legally adopt
her because of the unique legal situation he and the baby faced. Again, Indian

70
Supra
71
Ibid
72
Additionally, Yuki Yamada refused to accompany Ikufumi Yamada to India to claim her.
The surrogacy contract that the Yamadas had entered into at the Akanksha Infertility Clinic
in Anand, Gujurat did not directly address this issue, but it did state that the intended father
would raise the child if the intended mother did not wish to. This contractual provision did
not prevent the legal turmoil that resulted from this unique situation, which neither Indian
nor Japanese law was equipped to handle.
73
See Rohit Parihar, Identity Crisis, INDIA TODAY, Aug. 9, 2008,
http://indiatoday.intoday.in/site/story/Identity+crisis/1/12831.html; India-Japan Baby in
Legal Wrangle, BBC NEWS, Aug. 6, 2008, http:// news.bbc.co.uk/2/hi/7544430.stm.
74
Supra Note 9
75
The Japanese embassy insisted that Baby Manji needed travel documents from India, her
birthplace. Parihar
76
Supra Note 9
77
Ibid
78
Ibid

38 | P a g e
law presented a barrier: India's adoption laws prevent a single male from
adopting a female child79. While Ikufumi Yamada worked to resolve this
legal disarray, political turmoil and bombings in Baby Manji's birthplace
required that she be moved to another hospital shortly after her birth80.
Simultaneously, doctors treated her for a variety of hospital-borne illnesses,
including septicemia81. Adding yet another “mother” to her life, Ikufumi
Yamada's friend's wife temporarily housed and breastfed Baby Manji82.
Eventually, Ikufumi Yamada prevailed in taking Baby Manji home to Japan,
but not before his Indian tourist visa expired. Instead, he returned to Japan
and left the care of Baby Manji to his mother, Emiko Yamada83. Emiko
Yamada petitioned to adopt Baby Manji, and the case went up to the
Supreme Court, the highest court in India84. The court referred Emiko
Yamada to the National Commission for Protection of Child Rights. After
much legal wrangling, the state finally issued Baby Manji a certificate of
identity, a legal document given to those who are stateless or cannot get a
passport from their home country85. With this certificate, Ikufumi Yamada
was able to obtain a Japanese visa to bring Baby Manji home to Japan86. The
Baby Manji case demonstrates the complexity of international surrogacy.
Laws and regulations concerning adoption, surrogacy, and citizenship have
not been able to accommodate international arrangements borne out of the
rapidly emerging technology used to create babies such as Baby Manji.

79
The Hindu Adoptions and Maintenance Act, No. 78 of 1956 (1956), vol. 7,
http://punjabrevenue.nic.in/hadoptact(l).htm#_ftnrefl.
80
Supra Note 8
81
Ibid
82
Ibid
83
Ibid
84
. In the meantime, Satya, a non-governmental organization based in Jaipur, attempted
unsuccessfully to petition a lower court, the Rajasthan High Court, claiming that Emiko
Yamada's custody of Baby Manji was illegal due the lack of laws on surrogacy in India and
Japan. See Japan Gate-Pass For Baby Manji, THE TELEGRAPH, October, 17, 2008, http://
www.telegraphindia.com/1081018/jsp/nation/story_9984517.jsp.
85
Yamada v. Union of India, 2008 S.C.A.L.E. 76, 13 (India),
http://judis.nic.in/supremecourt/helddis.aspx.
86
Ibid

39 | P a g e
Although the Indian Courts finally allowed Baby Manji to leave India with
her biological father, the case exposed the lack of clear guidelines and laws
related to international surrogacy in India.

A Stateless Baby, Criminal Charges and Exile in Ukraine

Patrice and Aurelia Le Roch, citizens of France, traveled to Ukraine to hire a

gestational surrogate in 201087. Surrogacy is illegal in France and the
country does not grant French citizenship to surrogate-born babies88.
However, the Le Roches desired to have a biologically related baby through
surrogacy. Since Ukrainian law allows intended parents of surrogate-born
babies to be listed as birth parents, Patrice and Aurelia travelled to Kyiv,
Ukraine to arrange for a gestational surrogate through an agency89. The
Ukrainian surrogate then delivered twins for the couple90. After, the Le
Roches followed the agency's suggestion to hide the details of the surrogacy
from the French embassy in Ukraine so as to obtain French passports for the
babies91. The couple then filed for French passports at the French Embassy
and apparently claimed that the babies were naturally born to the mother92.
The French embassy suspected surrogacy and requested medical records and
supporting documentation. When the Le Roches could not produce these, the
French Embassy rejected the passport applications and the babies were
refused entry to France93. Ukrainian law recognizes married couples that hire

87
Kateryna Grushenko, French Couple's Desire for Child Brings Trouble, KYIV POST,
April 15, 2011, http:// www.kyivpost.com/news/nation/detail/102433/#ixzzlWM80ko3W.
88
Ibid
89
Ibid
90
Ibid
91
Ibid
92
Ibid
93
Ibid

40 | P a g e
surrogates as the only lawful parents of a surrogate-born child94. But
conversely, Ukraine does not recognize such children as enjoying birth
citizenship through the surrogate mother. Thus, the twins also could not
obtain Ukrainian passports. Under Ukrainian law, the twins were French
because their legal parents were French95. Since France would not recognize
the twins, the babies were effectively stateless. It is worth mention that, at the
time, the French Embassy in Kyiv, Ukraine warned French citizens on its
website against engaging in local surrogacy to prevent exactly this type of
scenario96. Facing this legal limbo, Patrice Le Roch, and his father Bernard
Le Roch, hid the twins under a mattress in their Mercedes and attempted to
cross into Hungary at the Ukrainian border without proper documentation97.
Upon discovery, Ukrainian authorities charged both men with attempting to
illegally transport children without proper documentation under Ukrainian
child trafficking laws98. Initially, the babies were taken away from the Le
Roches but have since been returned to them99. Ukraine fined both men
$2,130 for the smuggling attempt100. Patrice and Aurelia Le Roch have tried
to petition other European countries to give their twins a passport and remain
in Kyiv with their twins waiting for French authorities to rule on their
daughters' status101.

94
Apparently, this situation is not unique and occurs to an estimated 400 French couples
each year. See Richard F. Storrow, Travel into the Future of Reproductive Technology, 79
UMKC L. REV. 295, 305 (2010)
95
The baby smugglers: French family arrested trying to sneak two-month-old surrogate twins
out of Ukraine in a chest, DAILY MAIL, March 24, 2011,
http://www.dailymail.co.uk/news/article-1369561/French-family-arrested-trying-smuggle-
monthold-surrogate-twi ns-Ukraine.html#ixzzlWM0sAKqe
96
Ibid
97
Ibid
98
Ibid
99
Frenchman Faces Fine In Ukraine For Baby Smuggling, KYIV POST, May 5, 2011,
http://www.kyivpost.com/news/nation/detail/103727/ #ixzzlWON0LZ0.
100
Ibid
101
Ibid

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A Case of Successful International Commercial Surrogacy Despite
Ambiguities About Payment

In the recent documentary film Made in India, the filmmakers followed an

American couple, Lisa and Brian Switzer, who sold their house and spent
their savings to go through a surrogacy process in India102. The Switzers
could not afford the cost of surrogacy in the United States and decided to
enter into an international surrogacy arrangement facilitated by Planet
Hospital, a California based surrogacy broker. The surrogate, Aasia Khan, a
27-year-old Muslim woman living in the Mumbai slums, became a surrogate
to provide for her three children and thereby offset the financial instability of
her husband's mechanic business. She signed the agreement with the
surrogacy clinic Rotunda without informing her husband. She did not appear
to understand the IVF procedure and thought it was comical that a baby could
be created “without a man.” Intermediaries told the Switzers that Aasia was
paid $7,000, although she was actually promised around $2,000103. Aasia
carried twins for the Switzers successfully, yet she felt it was unfair that she
was not paid more for carrying two babies instead of one104. Aasia met with
the Switzers to solicit their goodwill in providing additional compensation,
despite a contract prohibiting her from such action105. The Switzers promised
Aasia additional compensation. 106

102
Ibid
103
MADE IN INDIA (Rebecca Haimowitz & Vaishali Sinha 2011) at minute 12:16
104
Ibid
105
Ibid
106
Ibid

42 | P a g e
 CHAPTER -9

CONCLUSION

Surrogacy involves conflict of various interests and has inscrutable impact on

the primary unit of society viz. family. Non-intervention of law in this knotty
issue will not be proper at a time when law is to act as ardent defender of
human liberty and an instrument of distribution of positive entitlements. At
the same time, prohibition on vague moral grounds without a proper
assessment of social ends and purposes which surrogacy can serve would be
irrational. Active legislative intervention is required to facilitate correct uses
of the new technology i.e. ART and relinquish the cocooned approach to
legalization of surrogacy adopted hitherto. The need of the hour is to adopt a
pragmatic approach by legalizing altruistic surrogacy arrangements and
prohibit commercial ones.107 Though, the concept of surrogacy is still not
legal most of the countries because of the some sensitive issue, however there
are many countries which legalized gestational surrogacy but not commercial
surrogacy, so the parents who are not able to procure their own child will
have chance to get their child by the method of surrogacy. In this paper we
analysis the provisions of the ART Bill, 2010 which regulate so many rights
regarding surrogate mother and the child born from the surrogate that he will
be able to get right in the property of the commissioning parents after the
fulfilment of the agreement and the surrogate will get his pregnancy expenses
by the commissioning parents. While in the ART Bill, 2010 the gestational
surrogacy is legalizes or permitted it did not legalized the commercial
surrogacy. In the world this concept will get his hype and now in India it
becomes very popular but in our opinion government has to take more
initiatives to profound this concept in the grassroots levels. Eventually the

107
Smith Chandra, Surrogacy and India : A legal Perspective, NALSAR University of Law,
file:///C:/Users/Vaishnavi%20.LAPTOP-NB5VU17G/Downloads/SSRN-id1762401.pdf
(Last Accessed 18th September, 2019)

43 | P a g e
surrogacy is the gift of those people who cannot conceive their own child, but
now they will have their own child with the help of surrogacy.

44 | P a g e
 CHAPTER - 10

SUGGESTIONS AND RECOMMENDATIONS

In the end of this research we conclude with that there are some ethical issues
arising from the surrogacy arrangements. It is appears to be the primary
concern for surrogate arrangements since the surrogate mother is providing
germinal material only upon the assurance that someone else will take
responsibility for the child she helps to create. The surrogate mother provides
her ovum with the clear understanding that she has to avoid responsibility for
the life she creates and she has to dissociate herself from the child in
exchange of some other benefit such as money. In such a way, at the deepest
level surrogate arrangements cannot be viewed as ethical, because they
involve a change in motive for giving birth for the sake of some other
benefits money.108 There are certain recommendations are provided for the
surrogacy in India.

-There should be legislation directly on the subject of surrogacy arrangement

involving all the two parties i.e. the surrogate mother, the commissioning
parents.

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

the child.

- Legal recognition of termination and transfer of parenting rights.

- The surrogate mother should be provided by the copy of the contract as she
is a party in the agreement and her interests should be taken into account. It is
crucially important to maintain and monitor the anonymity of the surrogate
mothers.

108
Keshav Gaur, Sarthak Garg, Reproduction Rights of Women: Ethical or Viable Role of
Surrogate Mother, NALSAR University of Law, file:///C:/Users/Vaishnavi%20.LAPTOP-
NB5VU17G/Downloads/SSRN-id2178623.pdf ( Last Accessed, 13th September, 2019)

45 | P a g e
- The surrogate mother should not undergo more than 3 trials and if she does
not conceive the child of the person in first time.

- Health Insurance for both the surrogate mother and the child is essential to
ensure a healthy life.

- The government needs to monitor the surrogacy clinics, which generally

charge arbitrary prices for surrogacy arrangements. Regulations would enable
the government to ensure that the clinics charge fair prices.

- The contract signed between the commissioning parents and the surrogate
mother should mention something about insurance and emergency needs that
the surrogate mother may require during the pregnancy; it has to mention
something about her future after relinquishing the baby.109

- Surrogacy agreements are to be treated on par with other contracts and the
principles of the Indian Contract Act 1872 and other laws will be applicable
to these kinds of agreements.

- The commissioning parents or parent shall be legally bound to accept the

custody of the child irrespective of any abnormality that the child may have,
and the refusal to do so shall constitute an offence.

- A surrogate mother shall relinquish all parental rights over the child. The
birth certificate in respect of a baby born through surrogacy shall bear the
name(s) of genetic or intended parents/parent of the baby.

-The child born to a married couple or a single person through the use of
ART shall be presumed to be the legitimate child of the couple or the single
person, as the case may be.

109
Supra Note 9

46 | P a g e
- If the commissioning couple separates or gets divorced after going for
surrogacy but before the child is born, then also the child shall be considered
to be the legitimate child of the couple110

Surrogacy involves conflict of various interests and has inscrutable impact on

the primary unit of society viz. family. Non-intervention of law in this knotty
issue will not be proper at a time when law is to act as ardent defender of
human liberty and an instrument of distribution of positive entitlements. At
the same time, prohibition on vague moral grounds without a proper
assessment of social ends and purposes which surrogacy can serve would be
irrational. Active legislative intervention is required to facilitate correct uses
of the new technology i.e. ART and relinquish the cocooned approach to
legalization of surrogacy adopted hitherto.111 The need of the hour is to adopt
a pragmatic approach by legalizing altruistic surrogacy arrangements and
prohibit commercial ones.

110
Supra Note 10
111
Ibid

47 | P a g e