Blended LLM in Corporate & Financial Law

Legal Research Methodology

First Internal Graded Assessment
Client Memorandum
Name: - Siram Jaswanth
Student id: - 21010456
A. To: Shama and Yusuf
B. From: Siram Jaswanth
C. Date: 07/08/2021
D. Subject: Enforceability of Contract for surrogacy
E. Facts: One couple of Aileena and Raaz intends to be blessed with child but
unfortunately many years passed without fulfilling their desire. The doctor
recommended surrogacy as a possible method to get a child. So, they with a desire to
have a child they entered a contract with one Shama and Yusuf for a consideration of
Rs. 2,50,000/- and to give the child after birth relinquishing all parental rights.
Despite the couple Aileena and Raaz demanded to get their child accordingly under
the contract but the surrogate mother not willing to give the child born, after, due to
affection towards the child. Client approached for an advice to get parental rights
upon the surrogate child in lieu of the contract.
I assumes the fact that the intending couple resides in India and the surrogate mother also
resides in India. The contract was entered in India. I further assumes that the contract is
for commercial surrogacy and surrogate couple are not related to each other. On the
assumption of the fact that the intending parents have been registered under surrogacy
register and followed the necessary guidelines relating to surrogacy.
F. Issues:
1. Whether the surrogate mother have a right to keep the child born after his birth
without breaching the contract with the intended parents?
2. Whether the intending parents are entitled for custody of their child under the
contract?
G. Conclusion:
First let us be clear about the definition of ‘surrogacy’ it means “an arrangement in which
a woman agrees to a pregnancy, achieved through assisted reproductive technology, in
which neither of the gametes belong to her or her husband, with the intention to carry it to
 term and hand over the child to the person or persons for whom she is acting as a
surrogate”1.
Essentials under law:-

1. The contract shall be written and consent of the parties especially the commissioning
mother and her spouse is necessary.
2. The contract must be lawful and free consent is necessary.

The client facts are relevant to notice it’s a commercial surrogacy undertaken by the contract
between commissioning parents and surrogate mother, her spouse.
There are two types of surrogacy prevalent in India,
1. Gestational surrogacy
In this there is no genetically link with the surrogate mother, were the embryo is implanted
into the surrogate mother womb.
2. Traditional surrogacy
In this type of surrogacy there is a linkage of genes with the surrogate mother in which
the female egg have genetic connection with the child born.
As per the ICMR Regulations on the surrogacy the child born using donor gametes, then the
surrogate mother does not have any right on the child born 2 and the child is presumed to be
born to the intended parent and they have all the parental rights relating to the child. The
same is reflected in the Bill3 relating to the rights of the child were the donor has no right on
the child even though surrogate mother donated her gametes.
In the case of Johnson v. Calvert4, the California Supreme Court held that all the commercial
gestational contracts are not void and unenforceable. As a result the gestational contracts to
that extent of contract are valid and can be enforceable.
In Baby Manji Case5 were Mr. Stern and Mrs Whitehead entered into a contract for
surrogacy, the court held that Mrs. Whitehead failed on two counts to maintain the terms of
the contract one on to give custody to Mr Stern and to relinquish all the parental rights.

1
RS Sharma, ‘Social, ethical, medical & legal aspects of surrogacy: an Indian scenario’ 2014 140 (Suppl 1):
S13–S16 Indian medical journal of Research.
2
Code of Practice, Ethical Considerations and Legal Issues, para 3.12.3 <
https://main.icmr.nic.in/sites/default/files/guidelines/b.pdf>
3
Assisted Reproductive Technology (Regulation) Bill, 2020, (Bill no 97 of 2020).
4
Johnson v. Calvert, 851 P.2d 776, 784 (Cal. 1993).
5
Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518, and In the Matter of Baby M, 217
N.J. Super 313, (1987).
As per the recent ICMR guidelines6 the child has to be given to the intended parents as per
the contract with relinquishing all the parental rights towards the intending parents after his
birth.
So, the contract has to be upheld given the guidelines and case laws relating to
surrogacy.
H. Analysis: apply the rule to the facts as relevant to each issue and evaluate the
strengths and weaknesses of the legal argument for both sides before arriving at
advice to give to your client.
The relevant rule of application for the problem is 3.5.5 of ICMR regulations relating to
the relinquishment of the child born after surrogacy. By this, the surrogate mother cannot
be the mother of intending parents. Legally, the child is born to the intending parents with
support of gestational contribution in the surrogate mother womb.
Strengths: -
In order to have the contract non-binding towards the client.
 The possibilities are to make the contract unlawful which is to mention the
surrogacy is against the public policy of India.
 To question the validity of the contract entered between the both couples
under coercion?
 On the passage of the surrogacy bill, retrospectively, the client can rule that
the commercial surrogacy are invalid in India.

Weakness: -
 In lieu of contract repudiation she may be sued for the damages for the
contract amount being paid to her as per the terms of the agreement.
 Under rule 4.12.3, Legally/ genetically the surrogate mother cannot be a
biological parent to the child and keeping the child interest and the child has a
right to know how he is born after becoming adult so by rule, and welfare of
the children is also paramount importance as per the parens patria
Jurisdiction, the courts will be more inclined to safeguards the rights of the
child towards genetically related parents.

In taking clue of all the facts and laws on the issue I advise that the contract entered by
Aileen and Raaz with Shama and Yusuf are binding on each other according to the terms of

6
Ibid
the contract. Under the ICMR Regulations as of now, the contract is enforceable for custody
of the child born after. The demand for relinquishment of all the parental rights against
surrogate mother holds good under Indian Law. The surrogate mother cannot deny the legal
obligation under the contract as the child is not her child per contra she can only benefit from
consideration given to her for carrying the child in her gestational contribution.

I. List of sources or references used in preparing the memorandum.

1. Code of Practice, Ethical Considerations and Legal Issues, para 3.12.3 <
https://main.icmr.nic.in/sites/default/files/guidelines/b.pdf>
2. RS Sharma, ‘Social, ethical, medical & legal aspects of surrogacy: an Indian scenario’
2014 140 (Suppl 1): S13–S16 Indian medical journal of Research.
3. Manya Gupta and Shiromi Chaturvedi, ‘The Indian Ban on Commercial Surrogacy’
2020 Women’s Policy Journal.
4. Yehezkel Margalit, ‘In Defense of surrogacy agreements: a modern Contract law
perspective’ 2014 Volume 20 Issue 2
5. Mansi Choudhary, ‘Surrogacy Laws in India’ Probono India, Sep 2020 < Surrogacy
Laws in India> last accessed on 6 August 2021.
6. Martha A. Field, ‘The Case against Enforcement of Surrogacy Contracts’ 1990 Vol. 8,
No. 2 Cambridge University Press.