SURROGACY IN INDIA AND UK: COMPARATIVE ANALYSIS

Deepanshi Trivedi, Symbiosis Law School, Noida

INTRODUCTION
Surrogacy is presented as a method of medically assisted reproduction among others, a treatment for infertility.
Surrogacy is where a woman agrees to carry other’s baby in her womb. The baby implanted is genetically
related to the parents and in most cases is only option left with parents. The unrelated embryo is implanted in
women’s womb and she acts as carrier.
According to the Black’s Law Dictionary, surrogacy means the process of carrying and delivering a child for
another person. The New Encyclopedia 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. It is often depicted as a generous
altruistic action meant to help couples who cannot naturally have children, to offer them the joy of parenting.
Surrogacy is a global movement today. The Report of the Committee of Inquiry into Human Fertilization and
Embryology1 defines surrogacy as the practice whereby one woman carries a child for another with the intention
that the child should be handed over after birth.
The word "surrogate," is rooted in Latin "Subrogate" (to substitute), which means "appointed to act in the place
of." Altruistic surrogacy is where a surrogate mother agrees to gestate a child for intended parents without being
compensated monetarily in any way. In other words, this is in effect a free surrogacy. Whereas, commercial
surrogacy is an option in which intending parent offers a financial incentive to secure a willing surrogate.

Types of Surrogacy
1. Traditional or Partial Surrogacy: In this process only the intended father’s sperm is used to
inseminate surrogate mother as her egg will be used via intrauterine insemination (IUI), in-vitro
fertilization (IVF) or home insemination. Here, child is related to father but not the intended mother.
a. Gestational or Total Surrogacy: When the intended mother is not able to carry a baby to term
due to hysterectomy, diabetes, cancer, etc., her egg and the intended father's sperm are used to
create an embryo (via IVF) that is transferred into and carried by the surrogate mother. The
resulting child is genetically related to its parents while the surrogate mother has no genetic
relation.
4. Gestational Surrogacy and Egg Donation: If there is no intended mother or the intended mother is unable
to produce eggs, the surrogate mother carries the embryo developed from a donor egg that has been fertilized by
sperm from the intended father. With this method, the child born is genetically related to the intended father and
the surrogate mother has no genetic relation.
5. Gestational Surrogacy and Donor Sperm: If there is no intended father or the intended father is unable to
produce sperm, the surrogate mother carries an embryo developed from the intended mother's egg (who is
unable to carry a pregnancy herself) and donor sperm. With this method, the child born is genetically related to
the intended mother and the surrogate mother has no genetic relation.
6. Gestational Surrogacy and Donor Embryo: In order for a pregnancy to take place, a sperm, egg, and a
uterus are necessary. When the intended parents are unable to produce sperm, egg, or embryo, the surrogate
mother can carry a donated embryo (often from other couples who have completed IVF that have leftover
embryos). The child born is genetically related neither to the intended parents nor the surrogate mother. Egg and
sperm are extracted from the donors and in vitro fertilized (creation of the embryo in a petri dish) and implanted

1
The Warnock Report (1984)
1|Page
 SURROGACY IN INDIA AND UK: COMPARATIVE ANALYSIS

into uterus of the surrogate. This is an expensive procedure. Again, the unused embryos may be frozen for
further use if the first transfer does not result in pregnancy.
According to another classification surrogacy can be categorized as either altruistic (non-commercial) or
commercial is the term used to describe the situation where there is no formal contract or any payment or fee to
the birth mother. It is usually an arrangement between very close friends or relatives. In altruistic surrogacy, the
essential elements are child-bearing by a surrogate mother, termination of her parental rights after his birth and
payment of money by the genetic parents. The surrogate is paid merely to recompense her for the pain
undertaken by her and includes reimbursement of medical and other expenses or is not paid at all.
In contrast thereto, commercial surrogacy involves payment of hefty sum of money as income to the surrogate
for the service offered by her plus any expenses incurred in her pregnancy and surrogacy is thereby looked upon
as a business opportunity. It is a business like transaction where a fee is charged for the incubation service, in
consideration of the birth mother surrendering the child at birth. There are usually financial arrangements like
the above in addition to ancillary expenses, loss of wages etc. And often stipulates behavior the birth mother
agrees to undertake (e.g. undergoing tests, or having an abortion if fetus is defective or avoid smoking and
drinking). The commissioning couple and the birth mother are often strangers.

Enigmatic Legality of the Concept of Surrogacy

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. For instance, in B. K.
Parthasarthi v. Government of Andhra Pradesh2, the Andhra Pradesh High Court upheld “the right of
reproductive autonomy” of an individual as a facet of his “right to privacy” and agreed with the decision of the
US Supreme Court in Jack T. Skinner v. State of Oklahoma3, which characterized the right to reproduce as “one
of the basic civil rights of man”. Even in Javed v. State of Haryana4, though the Supreme Court upheld the two
living children norm to debar a person from contesting a Panchayati Raj election it refrained from stating that
the right to procreation is not a basic human right.

Indispensable need of Surrogacy Law in India (Two Landmark Cases)

In the past decade, commercial surrogacy has grown tremendously in India. It is currently estimated to be a $2-
billion industry. Before November 2015, when the government imposed a ban, foreigners accounted for 80 per
cent of surrogacy births in the country. This is because most countries, barring a few such as Russia, Ukraine
and some U.S. states, do not permit commercial surrogacy. Many countries in Europe have completely
prohibited surrogacy arrangements, both to protect the reproductive health of the surrogate mother as well as the
future of the newborn child. The debate began when, in 2008 Baby Manji Yamada vs. Union of India5 case
where a Japanese doctor couple commissioned a baby in a small town in Gujarat. The surrogate mother gave
birth to a healthy baby girl. By then the couple had separated and the baby was both parentless and stateless,
caught between the legal systems of two countries. The child is now in her grandmother’s custody in Japan but
has not obtained citizenship, as surrogacy is not legal in Japan.
In 2012, an Australian couple who had twins by surrogacy, arbitrarily rejected one and took home the other. A
single mother of two from Chennai decided to become a surrogate mother in the hope that the payment would
help her start a shop near her house. She delivered a healthy child, but her hopes bore little fruit for herself. She
received only about Rs.75, 000, with an auto rickshaw driver who served as a middleman, taking a 50 per cent
2
2000(1) ALD 199
3
316 U.S. 535 (1942)
4
(2003) 8 SCC 369
5
(2008)13 SCC 518
2|Page
 SURROGACY IN INDIA AND UK: COMPARATIVE ANALYSIS

cut. After repaying the loans, she did not have enough money. On January 29, 2014, 26-year-old Yuma Sherpa
died in the aftermath of a surgical procedure to harvest eggs from her body, as part of the egg donation
programme of a private clinic based in New Delhi.
These incidents highlight the total disregard for the rights of the surrogate mother and child and have resulted in
a number of public interest litigations in the Supreme Court to control commercial surrogacy.

RESEARCH QUESTIONS
WHY IS COMMERCIAL SURROGACY BANNED?
The term Commercial surrogacy generally refers to any surrogacy arrangement in which the surrogate mother
is compensated for her services beyond reimbursement of medical expenses. In commercial surrogacy, the
woman rents her body, often under coercion. Commercial Surrogacy is thus a new form of exploitation and
trafficking in women. In surrogacy, the child is treated as a commodity, the object of a convention. The aim of
surrogacy is not the interest of the child, but to fulfill the desire of adults, to enable foreign parents to satisfy
their wish for a child at any price, contrary to PACE Recommendation 1443 (2000): there can be no right to a
child. Commercial surrogacy is legal in India, 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.

WHAT IS THE STATUS OF SURROGACY IN UK and India?

Status of surrogacy in UK
In England, commercial surrogacy arrangements are not legal and are prohibited by the surrogacy arrangement
act 19856. A surrogate mother still maintains the legal right for the child, even if they are genetically unrelated.
Unless a parental order or adoption order is made the surrogate mother remains the legal mother of the child.
Status of surrogacy in India
In 2005, the Indian Council of Medical Research (ICMR) issued guidelines to regulate surrogacy arrangements.
The guidelines stated that the surrogate mother would be entitled to monetary compensation, the value of which
would be decided by the couple and the surrogate mother. The guidelines also specified that the surrogate
mother cannot donate her own egg for the surrogacy and that she must relinquish all parental rights related to
the surrogate child.
In 2008, the Supreme Court of India in the Baby Manji Yamada vs. Union of India 7 case highlighted the lack of
regulation for surrogacy in India. In 2009, the Law Commission of India observed that surrogacy arrangements
in India were being used by foreign nationals, and the lack of a comprehensive legal framework addressing
surrogacy could lead to exploitation of poor women acting as surrogate mothers. Further, the Law Commission
recommended prohibiting commercial surrogacy, allowing altruistic surrogacy and enacting a law to regulate
matters related to surrogacy. In 2015, a government notification prohibited surrogacy for foreign nationals. The
Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha on November 21, 2016. It was passed on 18th
December, 2018 after making few amendments to the proposed bill. The Bill entitles only Indian citizens to
avail surrogacy; foreigners and NRIs are not allowed to commission surrogacy in India. Homosexuals and
single parents are also not allowed for surrogacy and couples who already have children are also not allowed to
go for surrogacy. According to the bill, women between the ages of 25 and 35 years can go for surrogacy and

6
United Kingdom: Surrogacy Arrangements Act,1985
7
(2008)13 SCC 518
3|Page
 SURROGACY IN INDIA AND UK: COMPARATIVE ANALYSIS

one woman can only be a surrogate once in her lifetime. The surrogate mother must be a 'close relative' of the
intending couple.

The Bill prohibits commercial surrogacy, and allows altruistic surrogacy. Altruistic surrogacy does not involve
any monetary compensation to the surrogate mother other than the medical expenses and insurance coverage
during the pregnancy. Commercial surrogacy includes surrogacy or its related procedures undertaken for a
monetary benefit or reward (in cash or kind) exceeding basic medical expenses and insurance coverage. The Bill
permits surrogacy when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not
for commercial purposes; (iv)not for producing children for sale, prostitution or other forms of exploitation; and
(v) for any other condition or disease specified through regulation.

The Surrogacy (Regulation) Bill, 2016, inter alia, provides for the following, namely:—

(a) To constitute the Surrogacy Boards at National and State level;

(b) To allow ethical altruistic surrogacy to the intending infertile Indian married couple between the age of 23-
50 years and 26-55 years for female and male respectively;
(c) The intending couples should be legally married for at least five years and should be Indian citizens to
undertake surrogacy or surrogacy procedures;
(d) To provide that the intending couples shall not abandon the child, born out of a surrogacy procedure, under
any condition and the child born out of surrogacy procedure shall have the same rights and privileges as are
available to the biological child;
(e) The surrogate mother should be a close relative of the intending couple and should be an ever married
woman having a child of her own and between the age of 25-35 years;
(f) To provide that the surrogate mother shall be allowed to act as surrogate mother only once;
(g) To constitute the Surrogacy Board at National level which shall exercise and perform functions conferred on
it under the Act. It is also proposed to constitute Surrogacy Boards at the State and Union territory level to
perform similar functions in respective States and Union territories;
(h) To appoint one or more appropriate authorities at State and Union territory level which shall be the
executive bodies for implementing the provisions of the Act?
(i) To provide that the surrogacy clinics shall be registered only after the appropriate authority is satisfied that
such clinics are in a position to provide facilities and can maintain equipments and standards including
specialized manpower, physical infrastructure and diagnostic facilities as may be provided in the rules and
regulations;
j) To provide that no person, organization, surrogacy clinic, laboratory or clinical establishment of any kind
shall undertake commercial surrogacy, issue advertisements regarding commercial surrogacy, abandon the child
born through surrogacy, exploit the surrogate mother, sell human embryo or import human embryo for the
purpose of surrogacy and contravention of the said provisions 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 lack rupees.
4. The Notes on Clauses explain in detail the various provisions contained in the Surrogacy (Regulation) Bill,
2016.
5. The Bill seeks to achieve the above objectives.

Comparison of surrogacy laws in India and UK (Table)8

Countries India9 United Kingdoms10

8
A comparative study on the regime of surrogacy in EU member states, European Parliament, 2013
4|Page
 SURROGACY IN INDIA AND UK: COMPARATIVE ANALYSIS

Types of Altruistic(Commercial Altruistic(Commercial

surrogacy prohibited) prohibited)
allowed
Payment to Medical expenses and Reasonable expenses
surrogate insurance coverage excluding payment for
the benefit of the
surrogate mother.
Requirement Yes No(Includes intending
of being parents living in a
married civil partnership or
living simply as
partners)
Citizenship Citizenship Permanent residence
and/or
residency
Existence of a Must prove infertility No requirement.
medical reason i.e. inability to
conceive.
Eligibility
criteria for
surrogate
mother
Age 25-35 years Not specified
Relation to Close relative No
commissioning
parent(s)
Requirement Yes No
of being
married
Number of At least one Not required
own children
Consent of the No provision Not required
partner
legal guardian Intending couple Surrogate (Transfer of
of the guardianship through
surrogate child adoption if the
intending parents are
genetically related to
the surrogate baby;
otherwise through a
court order)
Imprisonment Minimum 10 years Maximum three
for engaging in months
commercial

9
The Surrogacy (Regulation) Bill, 2016
10
United Kingdom: Surrogacy Arrangements Act,1985
5|Page
 SURROGACY IN INDIA AND UK: COMPARATIVE ANALYSIS

surrogacy

CONCLUSION AND SUGGESTIONS

It seems ironical that people are engaging in the practice of surrogacy when nearly 12 million Indian children
are orphans. Adoption of a child in India is a complicated and a lengthy procedure for those childless couples
who want to give a home to these children. Even 60 years of Independence have not given a comprehensive
adoption law applicable to all its citizens, irrespective of the religion or the country they live in as Non-Resident
Indians (NRIs), Persons of Indian Origin (PIOs) or Overseas Citizens of India (OCIs). As a result, they resort to
the options of IVF or surrogacy. The Guardian and Wards Act, 1890 permits Guardianship and not adoption.
The Hindu Adoption and Maintenance Act, 1956 does not permit non-Hindus to adopt a Hindu child, and
requirements of immigration after adoption have further hurdles.
There is a strong need to modify and make the adoption procedure simple for all. This will bring down the rates
of surrogacy. Altruistic and not commercial surrogacy should be promoted. Laws should be framed and
implemented to cover the grey areas and to protect the rights of women and children.

6|Page
 SURROGACY IN INDIA AND UK: COMPARATIVE ANALYSIS

BIBLIOGRAPHY
BILLS AND LAWS
The Surrogacy (Regulation) Bill, 2016
United Kingdom: Surrogacy Arrangements Act, 1985
PACE Recommendation 1443 (2000)
Universal Declaration of Human Rights 1948
The Guardian and Wards Act, 1890
The Hindu Adoption and Maintenance Act, 1956

JOURNAL
A comparative study on the regime of surrogacy in EU member states, European Parliament, 2013, PRS
legislative research
Anil Malhotra / Ranjit Malhotra, Surrogacy in India, A Law In The Making, (Universal Law Publishing Co. Pvt.
Ltd. New Delhi)
James Lindemann Nelson, Parental Obligations and the Ethics of Surrogacy: A Causal Perspective, Public
Affairs Quarterly, Vol. 5, No. 1 (Jan., 1991), pp. 49-61
Martha A. Field, Surrogate Motherhood: The Legal and Human Issues, (Harvard University Press 1990)

CASES
Baby Manji Yamada vs. Union of India
B. K. Parthasarthi v. Government of Andhra Pradesh
Jack T. Skinner v. State of Oklahoma
Javed v. State of Haryana

7|Page