1

SURROGACY LAW AND CONRACTS IN INDIA

Daniyal Qureshi

ABSTRACT

This article deals with the interface of surrogacy in India and law which presents itself to be weak and

not very well established. Surrogacy is a controversial, frowned upon and anti- traditional means of

reproduction and in our country is looked upon as a taboo, and like most taboos, it leads to the

abridgement of rights and exploitation of the people involved in it. Due to lack of any significant

furthering adjudication by the Honble Supreme Court of India there is vast confusion rampant

exploitation and booming business of it in India.

INTRODUCTION

Surrogacy in India is a practice that in modern India has just emerged to light, although can

be found in historical and mythological epics such as the birth of the seventh son of Devaki

and Vasudeva, however in the Sovereign Socialist Democratic Republic of India there is

absence of legislation, regulatory or otherwise, and in the absence of any such legislation

India has become a large and attractive “market” for surrogacy around the world. In the

absence of legislation in regard of surrogacy there is ease for intended parents to have their

child grow in the womb of another woman. The legal issues related with surrogacy are very

complex and need to be addressed by a comprehensive legislation. Surrogacy involves

conflict of various interests and has inscrutable impact on the primary unit of society viz.

family.1

Surrogacy has been allowed since 2002 of the types Altruistic and Commercial. So, it is the

urgent need of the hour to get the legal status of the surrogacy because foreigners are

travelling to India for the babies as the expenses are very less when compared to the other

countries, to prevent the exploitation and rights of the women.2

1
Law commission of India, Report no. 228
2
Surrogacy in Indian context-bliss or curse? By Aditya Mishra
 2

India has become a surrogacy tourism destination for the developed countries of the west due

to lower medical costs, lack of any legislation whatsoever, and lack of awareness of rights in

such matters amongst the population and this has led to commodification of the womb in

India. Rather than a social practice, surrogacy is taking a form of a business in India. It seems

that wombs in India are on rent which translates into babies for foreigners and dollars for

Indian surrogate mothers.3 For example the district of Anand in Gujarat, India’s cooperative

milk capital has also become the country’s surrogacy hub.

Anand a town of 1.8 million people known to the world as the capital of the white revolution

is a fairly poverty ridden. Anonymous, whose husband had abandoned her after the birth of

their second child stated she earned Rs 2000 a month. Surrogating a child for an NRI couple,

she got paid 3 lakh rupees.

LEGAL PROBLEMS WITH SURROGACY IN INDIA

The absence of any legislation creates a solid market that has no regulations, however a bill is

due in the parliament but so far no laws or guidelines have been laid down by any legislation

for surrogacy. This poses a plethora of moral as well as legal problems and questions. The

only available guidelines in India regarding surrogacy are from the Indian Council for

Medical Research set out in 2005 however these guidelines have no legal validity and are not

enforceable.

Legality of surrogacy must be understood based on certain parameters.

Men and women of full age without any limitation due to race, nationality or religion have

the right to marry and found a family.4 It is to be understood as a reproductive right and the

autonomy of the surrogate mother over her body. However, the question which arises is that,

whether the right to found a family extend to such practices as surrogacy?

3
Law Commission of India, Report no. 228
4
Declaration of Human Rights 1948.
 3

While commercial surrogacy is allowed in India, it raises a moral question of the

commodification of the child and whether it amounts to buying a baby? Which reverts back

to the previous question that whether the right to found a family would entitle one to

something as “buying a baby”?

Due to the legalization of commercial surrogacy, surrogacy must be distinguished from

adoption. This is because the Hindu Adoption And Maintenance Act 1956 prohibits any

receiving or giving of reward or payment for adoption.5 This further complicates the debate

as to whether or not surrogacy amounts to commodification of the baby.

The rights of the people involved in a surrogacy arrangement is another very vital topic that

needs to be addressed. Different countries and states have different approaches to this

problem. In UK while surrogacy is not illegal, a surrogacy agreement is not enforceable. The

surrogate mother is entitled to keep the baby as hers and deny it to the intended or

commissioning parents. The consent to a surrogacy agreement in India may be withdrawn at

any such time until a parental order is made by a statutory authority. No surrogacy

arrangement is enforceable by or against any of the persons making it.6

The supreme court of India however, ordered the child to be handed over to the Japanese

intended parents who had split up before the delivery of the baby.7

Therefore, giving a legal status to commercial surrogacy in India the rights of the people

involved in such agreements remain to be enumerated and secured through legislations.

VALIDITY OF SURROGACY CONTRACTS

5
Section 17 Prohibition of certain payments, Hindu Adoption and Maintenance Act 1956.
6
Surrogacy Arrangements Act 1985
7
In the case of Baby Manji Yamada v Union of India and Anr (2008) 13 SCC 518
 4

Surrogacy agreements as contracts in India must be looked at under the light of The Indian

Contract Act 1872.

Elements of a valid contract as given are a proposal, an acceptance, free consent, lawful

object and lawful consideration, and not hereby expressly declared to be void.8

Element of consent in a surrogacy arrangement

Consent in a surrogacy agreement is a fairly complex issue to understand. In light of S.13, S.

16 and S.19A of the Indian Contract Act 1872 the important questions that must be answered

are

1. Is the surrogate actually capable of providing consent in light of the nature of the

situation?

2. Is the consent of the spouse of the surrogate (if married) should be necessary for a

valid surrogacy agreement?

3. Does economic duress, much like in the district of Anand amount to violation of free

consent?

To answer the first questions, a pregnancy is a condition under which any woman is naturally

inclined to form an affection towards the child growing inside of her so as such to experience

“a change of heart”. This is to understand consent as “informed consent” herein the party

consenting must be capable of understanding the consequences of the contract. Motherhood

is not one such phenomenon that can be understood completely prior to pregnancy or having

a child to raise. In the landmark Baby M case the supreme court of New Jersey said

“Under the contract, the natural mother is irrevocably committed before she knows the
8
Essentials of a valid contract, Section 10, Indian Contract Act 1872
 5

strength of her bond with her child. She never makes a totally voluntary, informed decision,

for quite clearly any decision prior to the baby's birth is, in the most important sense,

uninformed, and any decision after that, compelled by a pre-existing contractual commitment,

the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally

voluntary.”9

Therefore, the contention to be raised that the consent to such an agreement is voluntary or

free under what conditions?

For the second question, spousal consent for a woman to act as a surrogate, there is a strong

risk of undue influence under section 16 of the Indian Contract Act 1872, that any spouse is

mostly in a situation to influence the decision of their wife. Unto that question, another

contention that is prevalent is whether it should be necessary to have the consent of the

spouse.

It can be contested that since right to procreate is a basic human right, therefore a right to

decide with whom to procreate is an inhibit within that right. However, how would this right

be limited or altered in an institution of marriage. Shall the wife have complete bodily

autonomy without consideration of their spouse to undergo a surrogacy or shall the spouse

have a legal right to consent to such surrogacy.

The right to make free and informed decisions about health care and medical treatment,

including decisions about one’s own fertility and sexuality, is enshrined in Articles 12 and 16

of the Convention on the Elimination of all Forms of Discrimination Against Women

(1978).10

9
109 N.J 396
10
Reducing reproductive rights: spousal consent for abortion and sterilisation by Rajalakshmi, Indian Journal of
Medical ethics.
 6

However, in the case of Ghosh v Ghosh the Supreme Court of India has held that exclusion of

spouse’s consent in decisions of reproductive matters such as sterilization or decision to not

have children would amount to “mental cruelty”11

Therefore, limiting reproductive autonomy of the spouse in the institution of a marriage

without the consent of their spouse. Building upon the same logic, there is a strong contention

that a surrogacy agreement must want for the consent of the spouse.

To answer the third question, it can be easily looked at the fundamental principles of contract

law in common law, wherein economic duress can violate the consent of the party, thus

violating section 13 of the Indian Contract Act 1872.

In the district of Anand, Gujarat it is observed that most of the surrogates are women living

under adverse conditions making as much as only Rs 2000 per month.

The presumption of law arises when there is an apparent inherent disparity in the bargaining

power of the parties and economic duress could very well create this disparity.

Other legal consequences could arise in case the consent is found to be not free. Should the

surrogate have the right to terminate the pregnancy outside the walls of the Medical and

Termination of Pregnancy Act 1971.

Other rights of the surrogates need to be enumerated by way of legislation to protect the

interest of the women of our country against exploitation from the upper classes and foreign

citizens who can afford to pay for the cheaper surrogacy arrangements and as much as one

third the costs of surrogacy as compared to western countries.

NATURE OF A SURROGACY CONTRACT

11
(2007) 4 SCC 511
 7

With aspects such as consent and object discussed, the classification of a surrogacy contract

is somehow complex. Often the question that presents itself is whether surrogacy amounts to

a bailment contract. When we have characteristics similar in both types of agreements, we

have to make suitable device to bring Surrogacy in the ambit of Contact of Bailment and

thereby provide relief (damages) to the Bailee in case of her physical and mental damage

caused because of the act of Surrogacy.12

Similarities and differences as to matter of rights in bailment and surrogacy.

Bailment as defined under section 148 of the Indian Contract Act 1872 is a contract for

delivery of goods for a specific purpose and as and when the purpose is complete the bailee

must return or dispose of the goods in the manner specified.

The act of surrogacy is similar to the Contract of Bailment, wherein the surrogate (Bailee)

agrees to act on the directions given by the intending parents (bailor) upon a condition that

once the work (delivery) is done the goods bailed (embryos/ gametes in the form of baby)

shall be returned back to the intending parents (Bailor).13

However, it is to be considered whether it is Baby that is bailed goods or the uterus of the

surrogate that would be constructively delivered for a specific purpose to the intended

parents. However, for a delivery there must be transfer of control. And the surrogate does not

surrender control of her body.

The other presumption is that the baby is the bailed goods and that the intended parents are

bailor.

This agreement contradicts the principles of human body cannot being tenured and the human
12
The Bailment of Womb (Altruistic or Commercial): Hidden Psychological & Legal Torments by Mrs. Shagufta
Anjum, international Journal of Innovative Research and Advanced Studies.

13
Supra 12
 8

individuals situations cannot being tenured and it can be claimed that it is discordant with the

general order.14

Howsoever it does satisfy the conditions for goods according to the Sales of Goods Act i.e.

merchantability, movability and marketability.

The classification of surrogacy contract as a bailment contract amplifies and protects the

rights of the surrogates against indiscriminate exploitation.

CONCLUSION

Elaborate and effective legislation, enumeration and protection of rights of the people

involved in surrogacy agreements is necessary. Understanding the rights regarding consent of

the surrogate and the spouse of the surrogate is essential due to the widespread practice of

surrogacy amongst married women in India for whom providing the services of their womb is

an opportunity to escape poverty and provide for a better future for themselves and their

families. It is essential to understand the mental toll that it takes ion the spouse of the

surrogate and it must be understood that while it is an extremely demanding promise for the

surrogate to deliver, the spouses of the surrogate have their lives attached to those of the

surrogates and must be taken in regard in the decision making process. The enforceability of

these contracts must be inspected on grounds of free consent.

By its very nature, surrogacy is a slight tamper with motherhood, therefore, for the time being

in absence of other legislation, the rights of surrogates and intended parents should be

protected under the flagship of bailment.

14
Uterus surrogacy: a jurisprudence and law perspective by Marzieh Maraqeh, International Journal of
Humanities and Cultural Studies.