CHANAKYA NATIONAL LAW

UNIVERSITY, PATNA

A PROJECT OF HELTH LAW ON THE TOPIC SURROGACY

AND RIGHTS OF CHILD

Submitted to: Prof. Kumar Gaurav

Submitted by: Shivangi Sharma

Roll no: 1235

10th Semester

5th Year

2014-19

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 ACKNOWLEDGEMENT

The Projects are extensive work and require much more than research and analysis. A
number of factors contribute to the proper execution and presentation of a good
project.

In this regard the first vote of thanks goes to my professor, Mr. Kumar Gaurav. His
grip and intricate knowledge on the subject of Health Law is irrefutable in the least.
Notwithstanding his constant motivation to continue surpassing boundaries and get
better with each one, he has been supportive all the way through.

The library with its rich plethora of books on the subject was a massive source of
information, leaving plenty of room for more to search and more to work on.

The library staff and their attendance to the special needs of students also go a long
way in winning extra points for good work.

In the end I would like to thank my parents and friends, who were a great source of
moral support and without whose cooperation this project was not possible.

SHIVANGI SHARMA

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 ABSTRACT

Surrogacy is a method or agreement whereby a woman agrees to carry a pregnancy

for another person or persons, who will become the newborn child's parent(s) after
birth.

Intended parents may seek a surrogacy arrangement when pregnancy is medically

impossible, pregnancy risks present an unacceptable danger to the mother's health, or
a man or male-couple wish to have a child. Monetary compensation may or may not
be involved in these arrangements. If the surrogate receives money for the surrogacy
the arrangement is considered commercial surrogacy; if she receives no compensation
beyond reimbursement of medical and other reasonable expenses it is referred to as
altruistic. The legality and costs of surrogacy vary widely between jurisdictions,
sometimes resulting in interstate or international surrogacy arrangements.

There are laws in some countries which restrict and regulate surrogacy and the
consequences of surrogacy. Some couples or individuals wanting a child in this
manner but who live in a jurisdiction which does not permit surrogacy may travel to
another jurisdiction which permits it.

Surrogacy is controversial around the world, raising difficult moral, social and legal
issues. As a result, the legal situation varies considerably. Many countries do not have
laws which specifically deal with surrogacy. Some countries ban surrogacy outright,
while others ban commercial surrogacy but allow altruistic surrogacy (in which the
surrogate is not financially compensated). Some countries allow commercial
surrogacy, with few restrictions. Some jurisdictions extend a ban on surrogacy to
international surrogacy. In some jurisdictions rules applicable to adoptions apply and
in others the practice is unregulated.

RESEARCH METHODOLOGY

1. AREA: Surrogacy Law

2. TOPIC: Surrogacy and Rights of child

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3. OBJECTIVES:

a. To determine the legal status of parenthood for a surrogate child.

b. To determine the status of the child in international instruments.

c. To determine the status of the Surrogate child in India.

d. To understand and improve the status of surrogate children in India.

4. RESEARCH QUESTIONS:

a. What is standard for determining legal parenthood, i.e., the maternity &

paternity, of a child born out of a surrogacy contract in different

jurisdictions, viz., India, United States of America and The United

Kingdom?

b. Whether the international instruments, viz., United Nations Convention on

Rights of the Child spells out any status of the surrogate child?

c. Whether the standards for determining legal status of surrogate child in

India are correct?

d. If not correct, what is an alternative procedure for furthering the rights

which enhance the status of the surrogate child?

5. HYPOTHESIS:

A Surrogate child in India has similar rights and standard of living as that of any

normal child.

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 TABLE OF CONTENTS

I. INTRODUCTION......................................................................................................7
II. ATTENTION TO RURAL WOMEN IN THE UNITED NATIONS.....................10
A. Intergovernmental Processes...............................................................................10
B. Human Rights Treaties.........................................................................................14
C. United Nations Entities........................................................................................15
III. CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN.................................................................17
IV. CHANGING RURAL ECONONY AND ITS IMPACT ON WOMEN...............18
A. Agricultural Production.....................................................................................20
B. Food security.....................................................................................................21
C. Livelihood diversification.................................................................................22
D. Working conditions for women........................................................................25
E. Climate change..................................................................................................26
F. Food crises........................................................................................................29
V. LABOUR RIGHTS OF RURAL WOMEN WORKERS.......................................31
VI. RURAL POVERTY...............................................................................................33
VII. CONCLUSION AND SUGGESTIONS..............................................................36

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 I. INTRODUCTION

The word surrogate originates from Latin word surrogates (substitution) which means
to act in the place of. Further the very word surrogate means “substitute” [1]. In
general, terms surrogacy is the practice where by one woman carries a child for
another with the intention that the child should be handed over after the birth.
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(s)” [2].

Defining surrogacy, it may be very well noted here that surrogacy is of three broad
types [3]:

Traditional Surrogacy- It involves the artificial insemination of the surrogate mother

by using the sperm of the intended father.

Gestational Surrogacy- This sort of surrogacy involves the creation of an embryo in a

Petri dish and its implementation into the womb of the surrogate mother who carries it
to the term.

Donor Surrogacy- 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.

If methodology is to be believed, this is the best techniques of surrogate motherhood

may not be new after all. It explains the one hundred children’s of Dhritarashtra and
Gandhari in Mahabharata. The term surrogacy is used when woman carries pregnancy
and gives birth to a baby for another woman. This woman may be the child’s genetic
mother, or she may carry the pregnancy to deliver after having an embryo, to which
she has no genetic relationship, transferred to her uterus [4].

To understand surrogacy in the Indian context, one must begin with the fact that,
while the Transplantation of Human Organs Act, 1994 banned the sale of human
organs, organ loaning an equally difficult and risky venture is being promoted through

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paid surrogacy. This is due to a medical industry that welcomes profitable
international ventures like "reproductive tourism", even when infertility constitutes a
small segment of domestic priorities [5].

The ever-rising prevalence of infertility world over has lead to advancement of

assisted reproductive techniques (ART). Herein, surrogacy comes as an alternative
when the infertile woman or couple is not able to reproduce. Surrogacy is an
arrangement where a surrogate mother bears and delivers a child for another couple or
person. In gestational surrogacy, an embryo, which is fertilized by in vitro
fertilization, is implanted into the uterus of the surrogate mother who carries and
delivers the baby. In traditional surrogacy, the surrogate mother is impregnated with
the sperms of the intended father artificially, thus making her both genetic and
gestational mother. Surrogacy may be commercial or altruistic, depending upon
whether the surrogate receives financial reward for her pregnancy. India has emerged
as an international centre of "surrogacy industry". Thousands of infertile couples from
India and abroad are flocking to the Assisted Reproductive Technology (ART) clinics
to have a child of their own [6].

Surrogacy raises complex ethical, moral and legal questions. Surrogacy must be legal
in India for it to have developed into an industry. What does it mean and how has it
come to be? 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

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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 autorickshaw 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. The 228th
report of the Law Commission of India [7] also recommended prohibiting commercial
surrogacy and allowing ethical altruistic surrogacy to needy Indian citizens by
enacting a suitable legislation. In the light of above, it had become necessary to enact
a legislation to regulate surrogacy services in the country, to prohibit the potential
exploitation of surrogate mothers and to protect the rights of children born through
surrogacy.

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II. DETERMINING THE LEGAL STATUS OF THE SURROGATE
CHILD

a) Maternity: In UK Law there are 3 ways in which a child’s mother can be

identified. First, the legal mother could be the woman who gestates the pregnancy
and gives birth, this of course would be the surrogate mother. Secondly, legal
motherhood could be anonymous with genetic motherhood, so that the woman
whose egg was fertilized would be the resulting child’s mother. In full surrogacy,
this would be the commissioning mother, and in partial surrogacy, the surrogate
mother. Thirdly, legal motherhood could vest in the woman who intends to raise
the child, that is the commissioning mother. Section 27(1)1 of the Human
Fertilisation and Embryology Act, 1990 makes it unequivocal that the woman who
gives birth is the legal mother. Two states, Florida and Virginia, promulgate that
the intended parents are the legal parents of a child born pursuant to a surrogacy
contract approved by the court. Florida's statute requires only that the court find
an enforceable surrogacy contract in which at least one of the intended parents is
also the genetic parent of the child. Upon this finding, the statute requires the
court to “enter an order stating that the intended parents are the legal parents of
the child”; therefore, the surrogate mother has no parental rights to the child.
Virginia's statute requires that the surrogacy agreement be judicially authorized
before the surrogate mother is impregnated. If the parties satisfy this requirement,
the intended parents are deemed the legal parents of the child, and the surrogate
mother has no legal claims to the child.

b) Paternity: As per UK Law, Applying the rules governing ascription of legal

fatherhood to a surrogacy agreement is rather complicated. The rebuttable
presumption of legitimacy within marriage would lead to the surrogate mother’s
husband [if she has one], being treated as the legal father from birth. This will be
rebuttable by DNA tests establishing that the surrogate mother’s husband is not in
fact the child’s genetic parent. DNA tests would identify the commissioning father
as the child’s father. There is also a rebuttable presumption that the man who is
registered as the father on the birth certificate, is the child’s legal father. If the
surrogate mother registers her partner on the child’s birth certificate, the
presumption that he is the father could again be rebutted by DNA tests which will
show that he is not. In the case of the commissioning father, however, DNA tests
might confirm his paternity. However, Section 111 of The Adoption of Children
Act, 2003, recognizes the man who is registered on the child’s birth certificate, as
the legal father.

1
Section 27(1): The woman who is carrying or has carried a child as a result of the placing in her of an
embryo of sperm and eggs, and no ther woman, is to be treated as the mother of the child.

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c) Position in India: Commercial surrogacy in India has been recognised as an
accepted practise by the ART (Regulation) Bill, 20082, and the ICMR guidelines3
and the Supreme Court of India4, however, the 228th Law Commission Report,
suggested the prohibition on surrogacy for commercial purposes in India
contending it to be unethical and against public policy.

2
The Bill states that All expenses, including those related to insurance, of the surrogate related to a
pregnancy achieved in furtherance of assisted reproductive technology shall, during the period of
pregnancy and after delivery as per medical advice, and till the child is ready to be delivered , to the
biological parents, shall be borne by the couple or individual seeking surrogacy.
Further, the surrogate mother may also receive monetary compensation from the couple or individual,
as the case may be, for agreeing to act as such surrogate.
3
The Guidelines state that the surrogate mother would be entitled to a monetary compensation from
the couple for agreeing to act as a surrogate; the exact value of this compensation should be decided
by discussion between the couple and the proposed surrogate mother.. The payments to surrogate
mothers should cover all genuine expenses associated with the pregnancy including the post-natal
care.
4
See the Baby M Case, see also Infra Note 98

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 III. INTERNATIONAL INSTRUMENTS FURTHERING THE
STATUS OF SURROGATE CHILD

The primary international treaty governing the rights of the child, be it mental,
emotional and legal rights, is the United Nations Convention on the Rights of the
Child. In addition to afore mentioned instrument, there are other protocols also, viz.,
The United Nations Declaration on the Rights of the Child (1959) and various other
regional treaties. This instrument gives out in detail the inalienable rights of a child as
drawn from the Charter of the United Nations & Universal Declaration of Human
Rights.

The definition of ‘child’ is an inclusive definition, i.e., it does not lay down certain
categories or what is called in statutory interpretation as ‘explanatory definitions’.
Furthermore, considering that this treaty is in essence, one that recognizes human
rights, it must be given a wide and beneficial construction.

Not all countries encourage surrogacy. Ethical and legal implications have been a
deterrent for its worldwide acceptance. In France, Germany,Sweden and Spain, the
people have voted against surrogacy.In France, commercial surrogacy is banned;and
in 1991 its highest court announced that “the human body is not lent out, is not rented
out, and is not sold.” In the United Kingdom, South Africa and Argentina, where
surrogacy is allowed, surrogacy requests are decided by independent surrogacy
committees.In the United States, rules and regulations on surrogacy differ among
states. California has legalized commercial surrogacy, while it is illegal in some states
and in some others, regulations are introduced.

In such a scenario, couples in these countries where legalities involved in commercial

surrogacy are complicated, would rather opt for other countries where the legal
procedure in this issue is much simpler. In the United States and few other countries,
the embryo implantation attempts, surrogacy contracts and post-birth rights of the
surrogate mother are all governed by laws;while such contracts and laws in India are
still under developed. Surrogate mothers give up their rights to the children with just a
signature, and most often with a thumbprint if they are illiterate. The birth certificate
does not carry the name of the surrogate. Thus, taking the baby out of the country
becomes easy, but legal and ethical uncertainties over surrogacy remain.

Although laws in Ukraine allow surrogacy, bringing the child into the country can be
difficult. Surrogacy is completely banned in France, Germany and Sweden. Further,
commercial surrogacy is not encouraged in the United Kingdom where legal hurdles
exist. Surrogacy is more acceptable internationally, but there are no international laws

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on surrogacy or minimum standards. Also, legal parentage of such a child has not
been recognized by any international conventions.

In some countries, producing evidence (such as DNA test results) of at least one
parent of the child having a genetic relationship with the child is mandatory; whereas
in other countries, legal release of the child by the husband of any married surrogate is
required. Obtaining citizenship and travel document is tough in most countries for
such a child.In Belgium, altruistic surrogacy is legal,while commercial surrogacy is
illegal. In France, Article 17/6 of the Civil Code nullifies any agreement with a third
party relating to procreation or gestation and disobeying the law may lead to judicial
problems. However, the Conseild' Etat, the highest administrative court in Francehas
declared that overseas surrogacy agreement is lawful.

In Germany, Article 1 of the Constitution, which states that human dignity is

inviolable, disallows surrogacy. German law does not permit a human to be made the
subject of a contract; including the use of a third party's body for reproduction. In the
United Kingdom, commercial surrogacy is not considered legal. It is prohibited by the
Surrogacy Arrangements Act 1985.Paying more than expenses for a surrogacy is
considered illegal. The Human Fertilization and Embryology Act 1990 allows
intending parents to acquire legal parenthood of their child; the surrogate is excluded
by an adoption order. In the United States, citizenship to children born overseas to a
U.S. parent is granted by the U.S. Department of State, only if the U.S. citizen has a
biological connection with the child; this is governed by the Immigration and
Nationality Act.

Traditional surrogacy involves the union of the egg of a surrogate mother and,
usually, the sperm of the commissioning father. The commissioning father would be
the child’s legal father, and the surrogate mother the child’s legal mother, in the home
country of both the parents. However, at present, conferring parentage on couples
who use artificial fertilization techniques is problematic. Generally, the sperm donor
is regarded as the father of the child, so legislation had to be enacted such that the
husband of the woman who is inseminated by artificial insemination-donor would be
the legal father of the child. This legislation does not encourage surrogacy
arrangements.

Advances in medical technology such as gestational surrogacy enable an embryo to be

created from a donor egg and sperm and then implanted into a surrogate mother. In
this case, the “mother” has to be legally defined. Legal rules may differ in the home
countries of the surrogate and the commissioning parents. There may be a serious
conflict of laws which will affect matters such as nationality and immigration. In

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countries that allow commercial surrogacy arrangements, rules may permit
commissioning parents to have parental rights over the child, and not the surrogate
mother. This may not be recognized by other countries, which can have their own
rules.

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 IV. AXIOMATIC RECOGNITION OF STATUS OF THE
SURROGATE CHILD

a) The ‘doctrine of better interest, historical development & meaning: Today in

the United States, courts use their ‘parens patriae’ power to determine the best
interests of the child in making decisions as to custody, guardianship, adoption, and
termination of parental rights. Courts begin this analysis by presuming that the
child's best interests are served when placed with a parent. A court, however, may
terminate parental rights with or without parental consent, when necessary. The
best interests test was applied to the surrogate context for the first time in Baby M to
determine who would receive custody when the surrogate mother refused to deliver
the child to the commissioning father. Generally, to terminate parental rights, a
court must find parental unfitness or abandonment, and that termination is in the
best interests of the child.

b) Dichotomy with article 21 of the Constitution of India – how to realize the

status of the child: The object of the fundamental right under Article 21 is to
prevent encroachment upon personal liberty and deprivation of life except according
to procedure established by law. Consistent with this interpretation, it can be safely
said that a child deserves the moral, legal, and other rights to ensure its fullest
development. This can, thus be said to be a corollary of the ‘Doctrine of Best
Interest,’ as applied in the United States of America and various jurisdictions world
over. However, the conflict arises when we compare the ‘right to family’ & ‘right to
procreation’ with the rights of the child. The ‘right to family’ has been recognized
an inalienable right of humans all over the world. This has also been recognized in
European Union.

Thus, the bill in essence, leaves it to the surrogacy contract to determine the rights
of the child. This from a legal standpoint, clearly vetoes and effectively nullifies the
rights of the child because of the absence of any statutory provision. Such a
provision must be struck down.

Legal status available to surrogate child: Apart from the afore – mentioned
discussion on realization of principle right of child under Article 21 of The
Constitution of India, it is imperative to identify the other legal rights also available
to a child born out of a surrogacy agreement.India is a signatory to the Convention
on the Rights of the Child, 1990. The same has also been introduced in national
legislation by means of enacting the Commission for Protection of Child Rights Act,
2005; wherein the entire declaration, in essence, is absorbed into state law by means
of Section 2(b). However, there are procedural lacunae that make these noble rights
ineffective. Consequently, all the rights that a child accrues upon birth, viz., right to

14
 succession, property, right to sue, right to nationality etc. shall be given as per the
respective laws governing the commissioning parents.

a) Recent Bill on Surrogacy: The Surrogacy (Regulation) Bill, 2016 is the latest
bill relat The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha on
November 21, 2016 and is listed for passage this week. The Bill regulates altruistic
surrogacy and prohibits commercial surrogacy. The Bill allows altruistic surrogacy
which involves a surrogacy arrangement where the monetary reward only involves
medical expenses and insurance coverage for the surrogate mother. Commercial
surrogacy is prohibited under the Bill. This type of surrogacy includes a monetary
benefit or reward (in cash or kind) that exceeds basic medical expenses and
insurance for the surrogate mother.
What is the eligibility criteria for couples intending to commission surrogacy?

In order to be eligible, the couple intending to commission a surrogacy arrangement

must be a close relative of the surrogate mother. In addition, the couple has to
prove that they fulfil all of the following conditions:

They are Indian citizens who have been married for at least five years;
They are in the age group of 23-50 years (female partner) and 26-55 years (male
partner);
A medical certificate stating that either or both partners are infertile;
They do not have any surviving child (whether biological, adopted or surrogate),
except if the surviving child is mentally or physically challenged or suffers from a
fatal illness;
A court order concerning the parentage and custody of the child to be born through
surrogacy;
Insurance coverage for the surrogate mother.
Additional eligibility conditions that the intending couple need to meet may be
specified by regulations. It could be argued that the qualifying conditions for
surrogacy should be specified in the Bill and not be delegated to regulations.

Who is a close relative under the Bill?

The Bill does not define the term close relative.

Who is eligible to be a surrogate mother?

The surrogate mother, apart from proving that she is a close relative of the couple
intending the surrogacy, also has to prove all the following conditions:

She was or is married and has a child of her own;

She is 25 to 35 years old;
She has not been a surrogate mother before;

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 She possesses a medical certificate of her fitness for surrogacy.
What will be the legal status of a surrogate child?

The Bill states that any child born out of a surrogacy procedure shall be the
biological child of the intending couple and will be entitled to all rights and
privileges that are available to a natural child.

What is the process for commissioning a surrogacy?

The intending couple and the surrogate mother can undergo a surrogacy procedure
only at surrogacy clinics that are registered with the government. To initiate the
procedure, the couple and the surrogate mother need to possess certificates to prove
that there are eligible. These certificates will be granted by a government authority
if the couple and the surrogate mother fulfill all the conditions mentioned above.
The Bill does not specify a time period within which the authority needs to grant the
certificates. Further, the Bill does not specify a review or appeal procedure in case
the application for the certificates is rejected.

What is the penalty for engaging in commercial surrogacy under the Bill?

The Bill specifies that any person who takes the aid of a doctor or a surrogacy clinic
in order to conduct commercial surrogacy will be punishable with imprisonment for
a minimum term of five years and a fine that may extend to five lakh rupees.

Offences such as (i) undertaking or advertising commercial surrogacy; (ii)

exploiting or abandoning the surrogate mother or child; and (iii) selling or importing
human embryo or gametes for surrogacy will attract a minimum penalty of 10 years
and a fine up to 10 lakh rupees.

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 V. SURROGACY IN INDIA

The supreme court of India by virtue of case, “Baby Manji vs. Union Of India”, has
made commercial surrogacy legalized in India. India is immerging as a leader in
international surrogacy. Surrogacy in India is much simpler and cost effective than
anywhere else in the world. There is no law governing the surrogacy ‘Surrogacy
Agreement’, is the only base which governs the parties to surrogacy. Therefore the
commissioning parents are required to be attentive while signing agreement, so that
the surrogacy agreement is not held void in court of law. Every agreement, should
express purpose and situations, the need of surrogacy, free will of surrogate, details
about the surrogate and the terms on which the surrogate agrees to gestate the child,
etc.

Assisted Reproductive Bill 2010 Considering the growing number of surrogacy cases
in India and the challenges that the surrogacy would face in future, the government of
India decided to come up with a law which would govern the surrogacy and ART in
India. A committee of experts was setup and the said committee has now submitted a
draft of the proposed bill to the government of India. The said bill is still pending with
government and has not yet been presented in the parliament. The purposed draft
namely ‘Assisted Reproductive Technologies’ bill 2010 has taken into consideration
various aspects of surrogacy and has built in safe guards for surrogate mothers. The
some of the salient features of ART Bill 2010 are as under: The process of surrogacy
and giving the womb on rent, as it is popularly called is completely legal in India.
Charging financial reimbursement for carrying the baby of an Indian or foreign couple
would be absolutely legal. The bill defines the term ‘couple’ as two people living
together and a sexual relationship that is legal according to Indian legislation. Since
court has already given verdict in favour of homosexuality, a gay or lesbian couple
can also go for surrogacy and it will be termed legal The age of surrogate mother has
to be 21 to 35. The maximum number of ‘live births’ allowed for her would be
maximum 5, including her own children. The number of donations would not be
greater than six in the entire lifetime. In the case of single parent opting for surrogacy,
the baby will be legitimate child for him or her. In case the intended parents are
engaged in live in relationship then the child would be legitimate child of both.

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Intended couple would bear the complete cost of pregnancy and pay remuneration to
the surrogate mother. They may give a contractual obligation under Indian legislation.
In case of the intended couple being a foreign national, they have to submit the
surrogacy policy of their country and a certificate regarding nationality of the
surrogate child post birth. They also have to nominate a local guardian to take care of
surrogate mother during pregnancy. Government certified ART banks to store
complete details of surrogates and donors. The certification to ART banks would be
given by state boards. This independent body would have authority to register,
maintain and monitor the functioning. The determination of the sex of the baby and
‘selective child birth’ through surrogacy is illegal. Surrogacy as medium of pregnancy
and child birth would be considered as legal for the couples otherwise, proved to be
incapable of give birth to a child and it is not a ‘convenient mode’ of having a baby
without readiness of beating pain of pregnancy and delivery. Commercial use of
surrogacy for cloning or mass production would be strictly prohibited.

Landmark Judgments on Surrogacy:

Baby Manji Yamada vs. Union of India: In the Landmark case Baby Manji Yamada v.
Union of India, a Japanese couple, Dr. Ikufumi Yamada and his wife, wished to have
a baby and entered into a surrogacy contract with an Indian woman in Anand, a city in
the state of Gujarat where this practice was pioneered. The couple went through
matrimonial discord but the father still insisted on having custody of the child. Under
Indian Lawa single father cannot adopt a girl child. He sent his mother in his stead
and a petition was filed before the Supreme Court. The Government seemed to be
helpless in this matter as there were no laws governing the effect of surrogacy. The
Apex Court directed that the National Commission for Protection of Child Rights was
the apt body to deal with this issue. Justice Arijit Pasayat and Justice Mukundakan
Sharma of the Supreme Court held that the father was the genetic father of the child
and he was given custodial rights of the child. The Government was instructed to
issue the passport to Manaji Yamada and she returned with her grand –mother. Most
importantly, the Supreme Court held that the Surrogacy Agreement was valid in India.
What is most noticeable in the Baby Manji Yamada case is that the stance of the
Court was not only pro-surrogacy it was also extremely pro-contract. The contract
was held to be valid and therefore of most importance even though what the Court
granted went against a particular legislation in the country. Jan Balaz v. Anand

18
Municipality: More recently in the matter of Jan Balaz v. Anand Municipality, a
German couple entered into a contract with a surrogate mother named Marthaben
Immanuel Khrishti. Twin children were born. The German couple was working in the
United Kingdom and the children required Indian passports to travel. Since their
citizenship was being litigated in the courts the passport authorities withheld the
passports. Germany, the parent state of the German couple did not recognize
surrogacy. The Supreme Court denied the passports but granted an exit permit to the
children and the German authorities decided to give the couple an opportunity to
adopt the children and fight for their rights. The Supreme Court of India also
recommended the emergent legislation of a law on surrogacy. The Bench headed by
Justice G.S. Singhvi and Justice C.K. Prasad said that no surrogate child should
undergo the difficulties faced by Nicolas and Leonard who were already two years of
age by the time this decision was made and had still not been granted citizenship in
any country. It is clear that in the case of Jan Balaz the contract proved to be
insufficient in demarcating the rights of the parties and it also brought out residual
issues such as citizenship and identity that are matters of vital importance to the
children but do not find place in the surrogacy agreement. In both the above case laws
the courts take a very pro-contract stand possibly as a way of encouraging commercial
surrogacy, which contributes millions of dollars to India’s economy.

Social Issues And Legal Issues:

New reproductive technology claim to help human beings through creative
interventions that reduce suffering and have the potential to transform the society. The
commercialization of surrogacy however creates several social conflicts rather than
resolving a few. It generates the family pressure on pure women to offer their wombs
for a price. In the other part in the world like in India the debate is focus on the ethics
of surrogacy rather than on the economic advantage of any particular region. On the
other hand the economic advantage is the main criteria behind going for surrogacy.
Majority of the women becoming surrogates are extremely vulnerable due to poverty,
lack of financial resources, low educational levels. For them the financial gain is the
key factor. This makes their economic exploitation much easier for the agents for
commissioning parents. The surrogates often face the dilemma that being a surrogates
is socially unacceptable when the frankly accept monetary consideration. So rather

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than tell their neighbours that they gave away their child, they tell them that the baby
died. As the surrogacy involves implantation of multiple foetuses, the unwanted
foetus is aborted during the course of development.

The misuse of PNDT in the process can eliminate the female foetus resulting into
imbalance of sex ratio in the country. There are cases where the surrogate mothers
have refused to part with the baby. In other cases the commissioning parents have
refused to accept the child with the deformity. Baby Manji’s case as there was divorce
between the commissioning couple the problem arose as to the custody of the new
born baby. In many cases, the caesarean delivery needs to be performed. For such
surgery the consent of surrogate mother is to be obtained. Her refusal may imperil the
life of the child. Confusion also exists where a surrogate mother fails to take standard
care and precaution during pregnancy as a result of which harm is caused to the
foetus. The high aspirations of the intending parents are ruined because of this.
Surrogacy can also affect the children’s perception of the values and integrity of their
family. Secrecy and anonymity create a negative environment that affects human
relations within and outside families. It also involves the issues of children’s right to
information about the identity of their parents. Secrecy and anonymity are routed in
the social value of the primacy of ‘blood relations’.

The present practices push such children into a search of identity, a sense of shame
and anger against their social parents. Commercialization of surrogacy creates several
social conflicts. Given the extreme vulnerability, one-third of the Indian women due
to poverty, exclusion from and marginalization in labour and job markets, patriarchal
social and family structures and low educational levels, the financial gain through
surrogacy become a key push factor. Since most surrogate mothers are not from well-
off sections and the motive primarily is monetary so they are easily exploited by the
agents working for commissioning parents. Secrecy and anonymity creates a negative
environment that affects human relations within and outside families. Every act
cannot be counted in terms of money; the moral and ethical issues are involved and
well thought-out while the commission of every act, then isn’t it is eccentric, that our
legislature is ignoring moral and ethical aspects, while drafting the ART bill: which
indirectly commercializes surrogacy. We aim that our legislature passes a law which
caters the need of the public at large and which is beneficial for all. There should be
no law, which degrades the status of any gender. At the end, a good law is the one,

20
which apart from economical and financial issues caters the ethical and moral sides of
the society also.

Current Scenario In India:

The concept of surrogacy in India is not new. Commercial surrogacy or “Womb for
rent,” is a growing business in India. In India, English speaking environment and
cheaper services attract the willing clients. Future projections of surrogacy practice
range from opportunity to exploitation – from rural women in India uplifted out of
poverty to a futuristic nightmare of developing country baby farm. In case of
surrogacy in India, it is hard to tell that whether these women are exercising their own
personal rights or whether they are forced to become surrogate mothers due to their
mother-in-law’s or husband’s desire to fulfill material and financial needs. Opponents
of surrogacy argue that the practice is equivalent to prostitution and by virtue of that
similarity; it should be disallowed on moral grounds. Surrogacy contracts are
“dehumanizing and alienating since they deny the legitimacy of the surrogate’s
perspective on her pregnancy.

Surrogate mother tries to avoid developing a special bond with the child in her and
views the pregnancy as merely a way to earn the much-needed money. The payment
for bodily services dehumanizes the surrogate mother and exploits her reproductive
organs and capability for personal gains of the wealthy. In fact, outsourcing surrogacy
is an exploitative practice in India. Currently, no law exists to protect the surrogate
mother in case of birth complication, forced abortion etc. Since 2002, commercial
surrogacy has almost become legal in India and India has become a sort of leader in it.
This is the reason that has led critics to allege that surrogacy business is exploiting
poor women in country like India already having high maternal mortality ratio.
According to estimates, which might be conservative – the business of surrogacy in
India is already touching $445-million a year. Surrogate motherhood as an
arrangement, in which a woman takes no ownership of the child born, has raised
moral, ethical social and legal questions about both woman and the “Commissioned
baby.”

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 VI. CONCLUSION

In the culturally enriched country like India concerns about the overuse and
inappropriate use of commercial surrogacy facilitated by unscrupulous fertility clinics
are above all. Surrogacy is an alternative to other fertility treatments in a bid to
expand the industry and make greater profits, and fears loom that surrogacy could
spin out of control. In developing country like India where poverty is playing an
important factor, women may be compelled by their husbands of in-laws to become
surrogates. Instances like breach of contract either by surrogate mother or
commissioning couple should not be neglected. Proper guidelines should be given to
control following issues: In absence of independent agency issues namely welfare of
surrogate child is at stake. Refusal on part of surrogate mother to give a child to
commissioning parents out of mental breakdown of mother. Several social and legal
questions like whether it amounts to sale of child, breach of contract by denial of
mother from handling over child, etc. should be settles. The Union Women and Child
Development Ministry is clearly in favour of monetary compensation for the
surrogate mothers. It’s high time to enact the laws otherwise India would be a tourism
hub for surrogacy. Surrogacy carry social stigma in the society as it is equated with
prostitution and by virtue of that it is argued that it should be disallowed on moral
grounds. Surrogate mothers are kept in isolation from families and allowed to meet
families in weekends, which are against the human rights. Hence, there are number of
ethical, social, legal and psychological issues associated with surrogacy, which
require urgent need for framing and implementation of law.

In India, people are practicing surrogacy when several children are orphans. Childless
couples who want to adopt these children are subjected to a complex procedure. A
common adoption law for all the citizens across religions or Indians living in other
countries is not present. Hence, they are forced to opt for IVF or surrogacy. The
Guardian and Wards Act, 1890 allows guardianship and not adoption. The Hindu
Adoption and Maintenance Act, 1956 does not allow non-Hindus to adopt a Hindu
child, and immigration procedures after adoption pose obstacles. Simple adoption

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procedures will reduce the rates of surrogacy. However, commercial surrogacy should
be encouraged. The rights of women and children should be protected through
framing of laws which will cover all the present loopholes.

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