Exposition of Surrogacy Rules in India with reference to Constitutional Pledges

Srishty Banerjee

Visiting Faculty, University of Delhi

Phd. Scholar (Law) Panjab University

Abstract

The legal aspects surrounding surrogacy are complex, diverse and mostly unsettled.
Surrogacy is when a woman carries a baby of another couple and gives up the baby at birth and
when she is compensated for carrying the child it is commercial surrogacy. In the past years
commercial surrogacy has grown tremendously in India. In most of the countries world over, the
woman giving birth to a child is considered as the child’s legal mother. However in very few
countries the intended parents are to be considered as the child’s legal parents from birth by the
virtue of the fact that the surrogate has contracted to give the birth of the child for the
commissioning parents. India is one country among the few, which recognize the
intended/commissioning parents as the legal parents. Commercial surrogacy was allowed for the
first time in 2002 and has since grown into a massive industry within the medical field and
World Bank study estimates the surrogacy business to be worth almost 400 million dollars a
year, with 3000 fertility clinics across India. There are so many legal and societal complications
around the surrogacy. It is perhaps with these considerations the Union Cabinet in October
2016 approved the Draft Surrogacy (Regulation) Bill, 2016. Assisted reproductive technologies
have impacted lives for some time now. However, due to a regulatory vacuity, and existing laws
conflicting with situations created by ART, or laws not contemplating these situations the rights
and interests of adults and children in ART are in disarray. In my research paper while dealing
with constitutional pledges and women’s rights with reference to surrogacy I will try to
investigate the various legal questions that arise in the matter of surrogacy.

Introduction

Surrogacy is presented as a method of medically assisted reproduction among others, a

treatment for infertility. 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. The global movement of
infertile couples, reproductive tissue and medical technologies over the past two decades has
been accompanied by a significant rise in state legislative and regulatory protocols, instruments
and practices to do with assisted reproductive technologies (ARTs) worldwide. Surrogacy may
be commercial or altruistic, depending upon whether the surrogate receives financial reward for
her pregnancy. 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. The rapid expansion of surrogacy markets in India raises questions
around the autonomy of the surrogate and the responsibility of the intended parents. Some
critiques decry the practice as opening the door to the commodification of women’s bodies and
reproductive labour, while proponents argue that it is a way to empowerment and an expression
of women’s solidarity and bodily generosity. These opposing convictions have resulted in further
questions concerning the conflicts between the principles of beneficence and non-
malfeasance. Commercial surrogacy has gone global in the last decade, and India has become the
international centre for reproductive tourism, boasting numerous high-quality and low-fee
clinics. The growth of the surrogacy industry in India raises serious concerns of global gender
justice, in particular whether the option is inordinately enticing for women who lack other
remunerable options and whether the conditions are adequate and the compensation fair.

Meaning and Reasons for Surrogacy

Surrogacy is a method of assisted reproduction whereby a woman agrees to become

pregnant for giving birth to a child for others to raise. She may be the child's genetic mother (the
more traditional form of surrogacy) or she may be implanted with an unrelated embryo. Having
another woman bear a child for a couple to raises usually with the male half of the couple as the
genetic father is referred to in antiquity. In some cases, surrogacy is the only available option for
parents who wish to have a child that is biologically related to them. 1 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

1
Anu, Pawan Kumar, Deep Inder, Nandini Sharma, Surrogacy and Women’s Right to Health in India: Isssues and
Perspective, INDIAN JOURNAL OF PUBLIC HEALTH, (July 15, 2013),
http://www.ijph.in/article.asp?issn=0019-557X;year=2013;volume=57;issue=2;spage=65;epage=70;aulast=Anu,
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) 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 "Subrogare" (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. Commercial surrogacy is a controversial method
of conception because people, governments and religious groups have questioned the ethics of
involving money in a child's birth. There can be several reasons behind surrogate pregnancy. For
instance, intended parents may arrange a surrogate pregnancy because a woman who intends to
be parent is infertile or unable to carry a pregnancy to term, e.g., woman with hysterectomy,
uterine malformation or with a history of recurrent abortions or any medical illness making her
pregnancy a risk to her own health. A female intending to be a parent may also be fertile and
healthy, but unwilling to undergo pregnancy. The agencies making arrangement for surrogacy
for the intended parents often help them to manage the complex medical and legal aspects
involved in process.2

TYPES OF SURROGACY

1. Traditional or Partial Surrogacy: This involves artificially inseminating a surrogate

mother with the intended father’s sperm via intrauterine insemination (IUI), in-vitro
fertilization (IVF) or home insemination. In this case the surrogate’s own egg will be
used. With this method, the child is genetically related to its father and the surrogate
mother.
2. Traditional Surrogacy and Donor Sperm: A surrogate mother is artificially
inseminated with donor sperm via IUI, IVF or home insemination. The child born is
genetically related to the sperm donor and the surrogate mother.

2
Anu, Pawan Kumar, Deep Inder, Nandini Sharma, Surrogacy and Women’s Right to Health in India: Isssues and
Perspective, INDIAN JOURNAL OF PUBLIC HEALTH, (July 15, 2013),
http://www.ijph.in/article.asp?issn=0019-557X;year=2013;volume=57;issue=2;spage=65;epage=70;aulast=Anu,
 3. 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 fertilised (creation of the embryo in a
petri dish) and implanted 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.

Altruistic Surrogacy

It 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.

Commercial Surrogacy

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.3

Status of Surrogacy in various countries

Laws differ widely from one country to another. In England, commercial surrogacy
arrangements are not legal and are prohibited by the surrogacy arrangement act 1985. 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 USA

In USA, the surrogacy and its attendant's legal issues fall under state jurisdiction and it differs
from state to state. Some states facilitate surrogacy and surrogacy contracts, others simply refuse
to enforce them and some penalize commercial surrogacy. In Canada, the Assisted Human
Reproduction Act permits only altruistic surrogacy; surrogate mothers may be reimbursed for
approved expenses, but payment of any other consideration or fee is illegal.

3
Kush Kalra, Surrogacy Arrangements; Legal and Social Issues, Journal of Law Teachers, 125 (2010)
Status of surrogacy in Australia

In Australia, all states (except Tasmania, which bans all surrogacy under the surrogacy Contracts
Act 1993) altruistic surrogacy has been recognized as legal. However, in all states arranging
commercial surrogacy is a criminal offense.

Status of surrogacy in South Africa

The South Africa Children's Act of 2005 enabled the "commissioning parents" and the surrogate
to have their surrogacy agreement validated by the High Court even before fertilization. This
allows the commissioning parents to be recognized as legal parents from the outset of the process
and helps prevent uncertainty.

Status of surrogacy in Asian Countries

In Japan, the Science Council of Japan proposed a ban on surrogacy and doctors, agents and
clients will be punished for commercial surrogacy arrangements. In Saudi, Arabia religious
authorities do not allow the use of surrogate mothers.

In China, Ministry of Health banned surrogacy in 2001. Despite this regulation it is reported that
illegal surrogacy "black market" is still flourishing in China. Anxious about such situation strict
legislation has been suggested by the political parties.4

Surrogacy in Europe

In Sweden, surrogacy is not clearly regulated. The legal procedure most equivalent to it is
making an adoption of the child from the surrogate mother. It is illegal for Swedish fertility
clinics to make surrogate arrangements.

Ukraine: Surrogacy is completely legal in Ukraine. Only married couples can legally go through
gestational surrogacy in Ukraine.

4
Anu, Pawan Kumar, Deep Inder, Nandini Sharma, Surrogacy and Women’s Right to Health in India: Isssues and
Perspective, INDIAN JOURNAL OF PUBLIC HEALTH, (July 15, 2013),
http://www.ijph.in/article.asp?issn=0019-557X;year=2013;volume=57;issue=2;spage=65;epage=70;aulast=Anu,
Russia: In Russia, commercial gestational surrogacy is legal and available for willing adults.
There has to be a certain medical indication for surrogacy. Foreigners have the same rights as for
assisted reproduction as Russian citizens.

Bulgaria: Surrogacy was previously illegal in Bulgaria, but as the procedure is still practiced
illegally, the government decided to sanction it. Instead of using the term surrogate, though,
Bulgaria calls it the "substitute mother."

Georgia: Surrogacy in Georgia Europe is legal but there surrogate mother cannot exercise any
parental rights over the child.

Some countries such as Poland and Romania among others have no defined surrogacy laws and
while it's still possible to undergo the surrogacy process in those nations. As it can be seen, laws
on surrogacy in Europe are varied and for some countries, vague and non-existent.5

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 Pradesh 6 , 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 Oklahoma7, which characterized the right to
reproduce as “one of the basic civil rights of man”. Even in Javed v. State of Haryana8, 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.

5
Guido Pennings, Legal Harmonization and Reproductive Tourism in Europe, OXFORD ACADEMIC, (Dec., 1,
2004), https://academic.oup.com/humrep/article/19/12/2689/2356251/Legal-harmonization-and-reproductive-
tourism-in
6
AIR 2000 A. P. 156
7
316 US 535
8
(2003) 8 SCC 369
Indispensable need of Surrogacy Law in India

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, 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 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.9

Law Commission Report on Surrogacy

The Law Commission in its 228th Report submitted in August 2009, also
recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to
needy Indian citizens by enacting a suitable legislation. The subject was suo motu taken up for

9
Soumya Swaminathan, Why the Surrogacy Bill is Necessary, THE HINDU, (Aug., 28, 2016)
http://www.thehindu.com/opinion/op-ed/Why-the-Surrogacy-Bill-is-necessary/article14593359.ece
study by the Commission and it was recommended that the proposed legislation on surrogacy
should include most important points in regard to the rights and obligations of the parties to a
surrogacy and rights of the surrogate child. Most important conclusions and suggestions of the
commission are as following:-

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. The Commission also analyzed Assisted Reproductive Technology
(Regulation) Bill and Rules 2008. 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. Most important points in regard to the rights and
obligations of the parties to a surrogacy and rights of the surrogate child the proposed legislation
should include may be stated as under:

[1] Surrogacy arrangement will continue to be governed by contract amongst parties, which will
contain all the terms requiring consent of surrogate mother to bear child, agreement of her
husband and other family members for the same, medical procedures of artificial insemination,
reimbursement of all reasonable expenses for carrying child to full term, willingness to hand
over the child born to the commissioning parent(s), etc. But such an arrangement should not be
for commercial purposes.

[2] A surrogacy arrangement should provide for financial support for surrogate child in the event
of death of the commissioning couple or individual before delivery of the child, or divorce
between the intended parents and subsequent willingness of none to take delivery of the child.
[3] A surrogacy contract should necessarily take care of life insurance cover for surrogate
mother.

[4] One of the intended parents should be a donor as well, because the bond of love and affection
with a child primarily emanates from biological relationship. Also, the chances of various kinds
of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the
intended parent is single, he or she should be a donor to be able to have a surrogate child.
Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents
and adoptive parents are different.

[5] Legislation itself should recognize a surrogate child to be the legitimate child of the
commissioning parent(s) without there being any need for adoption or even declaration of
guardian.

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

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

[8] Sex-selective surrogacy should be prohibited.

[9] Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971
only.10

The Surrogacy (Regulation) Bill, 2016

The Statement of Object and Reasons state that “India has emerged as a surrogacy hub
for couples from different countries for past few years. There have been reported incidents of
unethical practices, exploitation of surrogate mothers, abandonment of children born out of
surrogacy and import of human embryos and gametes. Widespread condemnation of commercial
surrogacy in India has been regularly reflected in different print and electronic media for last
few years. The Law Commission of India has, in its 228th Report, also recommended for
prohibition of commercial surrogacy by enacting a suitable legislation. Due to lack of legislation
to regulate surrogacy, the practice of surrogacy has been misused by the surrogacy clinics,
10
http://lawcommissionofindia.nic.in/reports/report228.pdf (Feb., 8, 2017)
which leads to rampant of commercial surrogacy and unethical practices in the said area of
surrogacy.”

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.11

Proposed Legislation on Surrogacy vis-à-vis Constitutional Pledges

The proposed legislation in short, seeks to ban commercial surrogacy altogether, while
limiting the availability of what the Bill terms as “altruistic surrogacy” to childless, heterosexual
Indian couples married for at least five years. That is, persons who are eligible to seek surrogacy
are required to engage a close female relative, not necessarily related by blood, in a transaction
where no money exchanges hands between the commissioning couple land the surrogate mother,
except to meet medical expenses. Unfortunately, though, well- intentioned as the proposal might
appear at first blush, the Bill fails to address the moral questions at the roots of the controversy,
and, if ultimately enacted into law, would also transgress some of the Constitution’s core
guarantees.12

Constitutional Pledges at Stake

There is a little doubt that any reasonable government based on norms of

constitutionalism ought to concern itself at some level with the ethics of procreation, especially
given the power equations at play in a contract of surrogacy. But is a complete proscription on
commercial surrogacy a neutral position to take? There are two basic arguments against such a
ban:-

First, that people, both foreigners and Indians, have a basic right to procreate, and to choose
whichever method they desire to achieve this objective. This affirmative argument in favour of a
right to use assisted reproductive technology, though, as the Harvard Law School, professor

11
http://lawcommissionofindia.nic.in/reports/report228.pdf (Feb., 8, 2017)
12
Suhrith Parthasarathy, Republic of Reason, THE HINDU, Sept., 1, 2016, at 10.
Martha A. Field has explained, fails for the reason that surrogacy involves using another person’s
body, albeit with their ostensible consent. “A personal right to do something,” Field wrote, “does
not necessarily carry over to a right to enlist the assistance of another.” That surrogacy has not
been previously regulated also does not now give a person a specific constitutional right to
procreate. After all, every practice tolerated by the state doesn’t emanate out of a pre- existing
natural or positive right. What’s more, in any event, given that a infertile couple could take
recourse to adopting a child, a ban on commercial surrogacy doesn’t necessarily affect one’s
right to raise a family.

Secondly, a classically libertarian argument that women have a fundamental right to contract, and
a fundamental right to personal liberty which together permit them to use their bodies as they
please, however, cannot be readily dismissed.13

While a complete ban on surrogacy is capable of being legally justified- even if it

arguably makes for poor strategy- the Bill’s proposal to allow altruistic surrogacy for certain
classes of persons is not only indefensible but is also scandalous in that is exemplifies the
government’s didactic ambitions. Under India’s constitutional structure every time a law seeks to
treat equal persons differently, it must justify the classification that is so makes with cogent
reasons. First, the distinction that the law draws must be intelligible; the classes of persons sliced
out by the law must be capable of being easily ascertained. And second, the state must show that
there is a rational nexus between the object that the law seeks to achieve and the classification
that it makes. In the case of surrogacy bill the object of the proposed law is ostensibly to curb the
exploitation of poor women who often act as surrogate mother. It’s hard to understand, though,
how such an object bear any relation to the classification that the Bill makes in distinguishing
couples married for five years or more from all others, including live-in couples, single parents,
and those from LGBT community. “We do not recognize homosexual or live- in relationships,
that is why they are not allowed to commission babies through surrogacy,” said External Affairs
Minister Sushma Swaraj, while announcing the Cabinet’s approval of the Bill. “It is against our
ethos” these professed reasons though neither emanate out of any neither legitimate
governmental interest nor do they contain any link to the Bill’s object and purpose. They merely

13
Suhrith Parthasarathy, Republic of Reason, THE HINDU, Sept., 1, 2016, at 10.
compromise the state’s expression of disgust at practices that it deems depraved. If Parliament
were to pass the Surrogacy Bill in its present form, the law would certainly violate the
constitutional pledge of equal treatment.14

Conclusion

The regulation of ART clinics and banks (which register and store donor
information/sperms and ova are critically important. The ICMR guidelines of 2005, besides
lacking enforceability, are not comprehensive. For instance, they do not set out accountability
parameters within these agencies, or adequately address the serious issues of sex selection
through ART, or have any obligations to provide legal and psychological counseling. The Bill
should cover the layered aspects of these rights and take into account the spectrum of laws and
prejudices that will come into play, including the rampant sex selection that is practiced in India
against girl children. We can take light from the Assisted Reproductive Treatment Act 2008, in
Victoria, Australia, which is regarded as a progressive law for ART. It recognizes the identity
rights of the child, overriding the confidentiality right of the donor. Parentage is with the
surrogate mother. The commissioning parents are required to get parentage order from the court
with the consent of the surrogate. The law sets out extensive obligations for the authority
administering the Act, including psychological and legal counseling for the adults and the child.
The authorities should verify the adults seeking ART and the proposed surrogates have not been
convicted for violent or sexual offences, or had children taken out of their care. Importantly,
single persons, unmarried and same-sex couples can be parents through surrogacy.

14
Suhrith Parthasarathy, Republic of Reason, THE HINDU, Sept., 1, 2016, at 10.