Surrogacy: a battle of Law and

Ethics
Table of Contents
 Abstract
 Introduction
o On the basis of Nature of Surrogacy Agreement
o On the basis of Nature of Fertilization
 Historical origin
 Fertility tourism in India
 Legislations
 Relevant case laws
 Analysis of the current scenario
o Merits
o Demerits
 Conclusion

Abstract

The purpose of this article is to trace the historical journey of surrogacy and
analyze its progress and position in a country like India where it used to be a
norm and a source of livelihood for some but is now banned commercially.
The author has given a brief introduction about what surrogacy is along with
its medical definition and has also mentioned how various religions look at it.
While it has been mentioned in some religious texts, not all communities
accept it wholeheartedly. The historical evolution of the surrogacy contract
worldwide has also been discussed. The author has then gone on to talk
about the phenomenon of fertility tourism in India along with its advantages
and disadvantages.

The author then moved on to the various legislations and guidelines which
have been passed in an attempt to regulate surrogacy, along with some
landmark cases and judgments which were an attempt to bring about the
welfare of the surrogate children and make surrogacy a part and parcel of
Indian society. The current legislation has been analyzed in detail, with both
the pros and cons being listed and in the conclusion, the author’s final
opinions and suggestions have been given.

Introduction
Surrogacy is a process in which a woman agrees to carry a baby for
somebody else like two homosexual people, single person or a couple who is
unable to conceive. After the birth of the baby, the birth mother hands over
custody and guardianship to the intended parent(s). The woman who carries
a baby for another person is referred to as a surrogate or birth mother. The
parent(s) of the baby born through surrogacy arrangement are called
commissioning or intended parent(s).

Surrogacy has been classified into various kinds:

On the basis of Nature of Surrogacy Agreement

 Altruistic Surrogacy- The surrogate mother receives no financial

consideration for her pregnancy or for handing over the baby to the
intended parents except for the necessary medical expenses. This
usually happens when the surrogate mother is a relative of the
intended parents.
 Commercial surrogacy- The surrogate mother is paid apart from the
necessary medical expenses. This usually happens when the surrogate
mother is not related to the intended parents.
On the basis of Nature of Fertilization

 Traditional Surrogacy: The surrogate mother carries the child for the

full term and delivers it for the couple through artificial insemination.
The surrogate mother is the biological mother of the child.
 Gestational Surrogacy: In this, the eggs of the mother are fertilized
by the father’s/donor’s sperm and then the embryo is placed into the
uterus of the surrogate. In this case the biological mother will be the
one whose eggs are used and the surrogate mother is the birth mother
of the child.

Historical origin
Although Indian society has not always been open about the idea of
surrogacy, it has been practiced even in ancient times. 

In the Mahabharata, Gandhari, the wife of Dhritarashtra, conceived but the

pregnancy went on for nearly two years after which she delivered a semi-
solid mass. Bhagwan Vyasa found 101 cells which were normal in the mass.
These cells were put in a nutritious medium and grown in-vitro the entire
term. Out of these, 100 developed into male children (Duryodhana,
Duhshasana and other Kauravas) and one as a female child called
Duhsheela. The story relating to the birth of Drishtadyumna and Draupadi
also relates to the birth of a child outside the mother’s womb and without the
occurrence of proper fertilization. King Draupada had a rivalry with
Dronacharya and wanted a son strong enough to kill Drona. He was given
medicine by a Rishi who collected his semen, processed it and then put it in a
yajnakunda (offering) from which Dhrishtadyumna and Draupadi were born.
During the seventh pregnancy of Lord Krishna’s mother, Devki, the embryo
was transferred to the womb of Rohini, the first wife of Vasudeva to save him
from being killed by Kansa. 

In Islam, there is the concept of Maqasid al- Sharī‘ah  or purposes of the Law
which are Hifz al- Dīn (Protection of Religion), Hifz al-Nafs (Protection of
Life), Hifz al- Nasl (Protection of Progeny), Hifz al-Aql (Protection of Mind)
and Hifz al- Māl (Protection of Wealth). This classification talks about the
basic necessities of human beings which need protection, preservation and
promotion. As Islam encourages reproduction, it supports treatment of
infertility and includes care for pregnant women. It further entails
preservation of lineage. Every child should know about and be related to both
his parents. Hiring a ‘womb’ for procreation is a very new concept in Islamic
jurisprudence and is not acceptable according to the ethics of Islam since
surrogacy involves the use of a donor sperm, a foreign element in the
woman’s womb which leads to mixing of lineage. According to Mufti Sheikh
Ahmad Kutty, an Islamic scholar, the introduction of male sperm into the
uterus of a woman he is not married to goes against the desires of Allah.

In a story in the Bible, Sarah the wife of Abraham was unable to have
children. She made her handmaid, Hagar, have a child with Abraham by
copulation. Here, Sarah got jealous and the surrogate mother refused to part
with the identity of the child. As a result, both the surrogate mother and the
child got ousted out of the house. Genesis 30 tells us the story of Rachel who
told her husband Jacob to sleep with her maid Bilhahin in order to produce
children and hence, build a family. Jacob subsequently goes on to have more
children with his concubines and both his wives, Leah and Rachel. Out of 12
sons, 10 are jealous of Joseph, the ‘special’ son of Rachel and they conspire
to sell him as a slave. 

As both the stories above point out, a typical and exclusive sexual
relationship between a man and woman was God’s desire. Enlisting the help
of a surrogate mother led to a breakdown of the families and a dysfunction in
general. The general message was that not trusting God and taking things in
one’s own hands could cause chaos. 

In 1975, Noel Keane, a lawyer brokered the first ever legal surrogacy
contract in history. Here, the surrogate mother did not receive any
compensation as per the agreement. After this, Keane established his own
infertility centre which arranged many surrogate pregnancies in the United
States. In 1978, Louise Brown was the first human to be born via in vitro
fertilization. Four years later, her younger sister, Natalie Brown, was also
conceived by IVF and became the world’s fortieth child to be conceived in
this way. In May 1999, Natalie was the first human born after conception by
IVF to give birth without IVF. Only a few months after the birth of Louise
Brown, Dr. Subhas Mukhopadhyay produced the world’s second test tube
baby ‘Durga’ in India. However, he was stopped from working further on in
vitro fertilization and was transferred to another area. He was also not
allowed to go to Tokyo to present a paper. Due to frustration and poor
health, Mukhopadhyay committed suicide on June 19, 1981.

On August 16, 1986, going by the scientific records, ‘Harsha’ became the
first human test-tube-baby of India. T.C. Anand Kumar, Director of Institute
for Research in Reproduction (IRR) of Indian Council of Medical Research
(ICMR) was credited for this achievement. In 1997, when he went to Kolkata
to attend a Science Congress, all the research documents of Mukhopadhyay
were handed over to him. After scrutinizing those documents and having
discussions with Durga’s parents, he became certain that Mukhopadhyay was
responsible for the creation of the first human test-tube-baby in India. By
T.E. Anand Kumar’s efforts, Mukhopadhyay was credited as the architect of
the first Indian test tube baby in a document related to the subject of
artificial intercourse in ICMR. 

In 1980, the first surrogacy agreement including compensation was made

between a surrogate and the intended parents. Elizabeth Kane (a
pseudonym) received $10,000 to carry athe baby for the couple. In spite of
having completed her family and having placed a child for adoption, Kane
was unprepared for the challenges she faced after the delivery and emotions
attached to the whole process. She regretted her decision to become a
surrogate and wrote about it in a book called Birth Mother.

Fertility tourism in India

Commercial surrogacy was legalized in India in 2002. There is a clinic at
Kaival Hospital in Anand which used to put infertile couples in touch with the
local women, took care of the women during the pregnancy and even offered
counseling after the delivery. The women used to carry children for couples
coming from countries like the US, Taiwan and Britain. This phenomenon was
called ‘wombs for rent’. India became a major hub for commercial
surrogacy for international parents due to the availability of a large
labour pool and excellent medical facility at relatively low costs. 

Dr Patel’s centre was believed to be unique as it offered a one-stop service.

While other clinics requested the couple to bring in their own surrogate, in
Anand the couple just provided the egg and sperm and the clinic chose the
surrogate from a waiting list of tested and ready surrogates. A rotating group
of surrogate mothers used to live together in a home rented by the clinic and
supervised by a former surrogate mother. They would be occupied with
English or Computer classes or would receive their husbands and children as
visitors during the day. The surrogate mothers and the parents signed a
contract in which the couple promised to cover all medical expenses in
addition to the woman’s payment, and it was stated that the surrogate
mother would hand over the baby after birth.

The couples flew to Anand for the in-vitro fertilization and again for the birth.
Most couples ended up paying the clinic less than $US10000 for the entire
procedure, including fertilization, the fee to the mother and medical
expenses. Counseling used to be a major part of the process. The women
would be told to think of the pregnancy as ‘somebody’s child coming to stay
at their place for nine months’. According to Dr. Patel, while none of the
mothers had a difficult pregnancy or any medical complication, the clinic is
diligent in its medical investigations and does not take any risks. 

However, this practice was criticized on many grounds. Critics believed that
the surrogates were often exploited as they were made to go through the
struggles of pregnancy for very less money. An argument against this
criticism was that this practice benefited both the parties- it gave one party
the chance to have their own child and the other to earn a sum of money
which they might not have been able to earn otherwise. From a liberal point
of view, it could be argued that it highlighted the woman’s right to autonomy
over her body which also included informed consent to volunteer her body for
any activity or cause whether it was physical labor, sexual services, organ or
tissue donation, or commercial surrogacy.

On the other hand, in a low-income country like India, where these women
mostly came from poor families and were not completely aware about their
rights, it was rational to argue that their consent came from a sense of
desperation and helplessness Due to their financial and educational
backwardness, this consent could also lead to exploitation. In addition to low
compensation, there were also the physiological side-effects of pregnancy
like migraines and back pain, diabetes, high blood pressure, or permanently
impaired fertility and death in extreme cases. There was also a risk of the
surrogate getting emotionally attached to the child. Postpartum concerns
included scarring and body pain from cesarean sections, as well as
postpartum depression. Additionally, there was also a chance of disapproval
from their communities and rejection by their husbands. These types of risks
were seldom discussed when the consent of the surrogate was obtained so it
was debatable whether the consent was informed or not. 

Economically, one common argument against medical tourism was that the
traveler spent his or her money in a foreign country instead of their home
jurisdiction. Their expenditure included both medical and travel expenses.
This was a very large amount, resulting in loss of income for the home
country. Also, for a nation like India, the potential financial benefits arising
out of this lucrative industry were tremendous. However, while it is the
Indian citizens who funded medical resources and infrastructure, it was the
foreign clientele that reaped the rewards. This was one of the most common
criticisms of medical tourism: that those who pay taxes within the nation
should be the ones to benefit from the efforts of doctors whose education
and infrastructural support were taxpayer-subsidized.

Keeping in mind the criticism mentioned above, the government of India

decided to ban commercial surrogacy in the year 2013.

Legislations
The Law Commission of India submitted the 228th report on surrogacy in
India and made the following observations, based on which the Indian
Council of Medical Research (ICMR) framed its guidelines in the year 2005
and drafted Assisted Reproductive Technologies (ART) Bill in 2008: 

 The Bill mandated that a foreigner or foreign couple not residing in

India or a non-resident Indian individual or couple, seeking surrogacy
in India to appoint a local guardian who would be legally mandated to
take care of the surrogate during and after pregnancy till delivery of
the child to the foreigner or foreign couple or the local guardian. The
commissioning parents or parent were legally bound to accept the
custody of the child irrespective of any abnormality that the child may
have, and the refusal to do so was deemed an offence. A surrogate
mother was to relinquish all parental rights over the child. The birth
certificate in respect of a baby born through surrogacy was to bear the
name(s) of genetic parents/parent of the baby.
 The child born through surrogacy was to be presumed as the legitimate
child of the couple or the single person, as the case may be. If the
commissioning couple separated or got divorced after going for
surrogacy but before the birth of the child, then also the child was to
be considered the legitimate child of the couple.
 The Bill did not allow the couple or individual to utilize the service of
more than one surrogate at any given time. 
 According to Section 10 of the Indian Contract Act, all agreements are
contracts, if they are made by free consent of parties competent to
contract, for a lawful consideration and with a lawful object, and are
not expressly declared to be void. Therefore, if the surrogacy
agreement satisfied these conditions, it was an enforceable contract.
Thereafter, under section 9, Code of Civil Procedure, it could be the
subject of a civil suit in a civil court for adjudication of all disputes
related to the surrogacy agreement and for a declaration/injunction as
to the relief prayed for.
 It was mandated that one of the intended parents should be a donor as
well, since it would help in developing a bond of love and affection with
the child due to the existence of a biological relationship. It was also
 thought that the chances of child-abuse and neglect, often observed in
cases of adoptions, would be reduced. In case the intended parent was
single, he or she was supposed to be a donor to be able to have a
surrogate child. Otherwise, adoption was the method used to get the
child if the biological (natural) parents and adoptive parents were
different.

The Assisted Reproductive Technology Bill, 2013 is still pending before

the Parliament and is yet to be passed. This Bill bans only allows the
exchange of money for medical expenses of the mother child and no other
compensation. This means that only altruistic surrogacy will be allowed and
commercial surrogacy will be banned- including sale and purchase of human
embryo and gametes. It also provides for the establishment of a National
Surrogacy Board at the central level and State Surrogacy Boards in the
states and union territories in order to regulate surrogacy in India by
providing guidelines for the same. 

Although this Bill is still pending, the Parliament passed the Surrogacy
(Regulation) Bill in 2018 which has the following features:

 Commercial surrogacy is banned and altruistic surrogacy is allowed for

Indian married couples who are infertile.
 The surrogate mother and the couple must be close relatives. However,
the Bill does not define who the ‘close relative’ may be.
 A National Surrogacy Board and State Surrogacy Boards at the national
and state levels must be set up in order to regulate the practice of
surrogacy.
 The surrogate mother and the couple need eligibility certificates from
the appropriate authority in order to proceed.
 The Bill only allows Indian couples to conceive through surrogacy.
Foreigners, Non-Resident Indians, Overseas Citizens of India, single
people, homosexuals, live-in couples and married couples who already
have a child are not allowed to avail of surrogacy except if they have a
child who is physically or mentally challenged or is suffering from a life-
threatening disease.
  For altruistic surrogacy, the age of the woman must be 23-50 years
and the age of the man must be 26-55 years. The couple should be
married for at least five years.
 The surrogate mother should be aged between 25-35 years and can act
as a surrogate mother only once.
 Any order concerning the parentage and custody of the child to be born
through surrogacy is to be passed by a Court of the Magistrate of the
First Class.
 All surrogacy clinics shall be registered under this Act after the
Appropriate Authority is satisfied that such clinics can provide facilities
and maintain equipment and standards including physical infrastructure
and diagnostic facilities as may be prescribed in the rules and
regulations. These clinics shall maintain all records for the next 25
years. 
 The Board shall constituted by the Minister in-charge of the Ministry of
Health and Family Welfare who shall be the Chairperson, Secretary to
the Government of India in- charge of the Department dealing with the
surrogacy matter who shall be the Vice-Chairperson and three female
Members of Parliament, out of whom two shall be elected by the House
of the People and one by the Council of State as Members.
 There shall be a provision of a gestation period of ten months from the
date of coming into force of this act to protect the wellbeing of already
existing surrogate mothers.
 The couple shall not abandon the surrogate child under any condition.

Relevant case laws

There was a complicated case in the year 2008 in which a Japanese couple,
Mr. and Mrs. Yamada, had found entered into a surrogacy agreement with a
woman in Gujarat. There were some marital problems between the couple.
After the birth of the child, she was moved to a hospital in Jaipur, where she
was cared for including being breastfed by a woman. Mr. Yamada had to
return to Japan due to the expiration his visa and after the divorce was
finalized, Mrs. Yamada had abandoned the infant. An NGO called Satya had
filed a habeas corpus writ in the Supreme Court and had submitted that
there were no laws governing surrogacy in India and a lot of irregularities
were being committed in the name of surrogacy. A money-making racket
was being operated. The Court directed that the petition be looked into by
Commission for Protection of Child Rights as there was no public interest to
make it maintainable as public interest litigation. Subsequently, a passport
was issued to the child so she could join her father in Japan.

In another case, there was a German couple, Mr. and Mrs. Balaz, who had
come to India for the purpose of conceiving via surrogacy. They entered into
a surrogacy agreement with a woman from Gujarat. However, the body of
Mrs. Balaz was not in a condition to even produce ova. So the process of
fertilization was brought about with the sperm from Mr. Balaz and donation
of ova by an anonymous woman. When the surrogate mother gave birth to
twin boys, there was a question regarding their nationality. Here, the court
held that since the wife had neither donated the ova nor carried the embryo
inside her body, she was not the biological mother.

On the other hand, the surrogate mother had carried the embryo inside her
for 9 months and nurtured the babies through the umbilical cord; she was
considered the biological mother. Keeping in mind the right to privacy of the
egg donor, there was no discussion regarding her identity or her right over
the child and it was held that merely donating ova did not make her the
biological mother. Since both the surrogate and egg donor were Indians, the
twins were also conferred Indian nationality. Mr. Balaz was shown to be the
father in the birth certificates of the twins and since the surrogate was an
Indian national, the twins were entitled to get Indian citizenship under
Section 3(1)(c)(ii) of the Citizenship Act, 1955.

In one case, the issue was provision of maternity leave for female lecturers
under the Maharashtra Civil Services (Leave) Rules, 1981. The petitioner had
given birth to a baby boy through surrogacy and after the birth, applied for
maternity leave. However, the Joint Director of Higher Education, Nagpur had
communicated that this leave is not available in case of birth via surrogacy.
The petitioner challenged this in court. The petitioner cited a Government
Resolution dated 28.07.1995, which talks about granting maternity leave to
the adoptive mother in the same manner as is available to a natural mother.
The court said that maternity leave is provided to ensure a healthy and
relaxing environment for both mother and child. It is a social justice
provision for women.

This provision is there to ensure that there is sufficient time for mother and
child to bond. It is said that being a mother is one of the most rewarding
jobs on the earth and also one of the most challenging. A commissioning
mother would have the same rights and duties towards the child as the
natural mother. A woman cannot be discriminated against on the grounds
that she has given birth to a child through surrogacy. Though the petitioner
had not given birth to the child, it was in her custody after birth and a
newborn baby cannot be left with people other than the mother during the
initial, most formative years. A mother would also include a commissioning
mother or a mother securing a child through surrogacy. Any other
interpretation would go against the objective of providing maternity leave to
a mother. 

In one case, an American couple had travelled to India for the purpose of
surrogacy. They had already purchased 8 embryos which were in the custody
of the hospital in Pawai after completing all the necessary requirements.
However, after the embryos were brought and kept at the hospital, they
came to know that they are now barred from entering a surrogacy
agreement in India due to a change in policy. They requested the court to
allow them to take back the embryos to any other country where the
surrogacy is allowed. They were then informed that the same cannot be
permitted as export of embryos has also been prohibited. The court directed
the petitioners to file their application before the Director General of Foreign
Trade (Export Cell) through their counsel and the authority was directed to
make a decision within 3 weeks of receiving the application. 

In another case, it was held that those foreigners who had already started
the surrogacy process when the ban on commercial surrogacy was
announced were permitted to continue the process, provided they had
completed all the necessary formalities. The Government of India is
supposed to fix the stages up to which the ban is to apply. 

The Supreme Court also reiterated that a woman who has given birth via
surrogacy is entitled to maternity leave and this case also talked about
granting paternity leave of 15 days to the father of the surrogate child.

Analysis of the current scenario

As discussed above, the Surrogacy (Regulation) Bill, which outlawed
surrogacy, was finally passed in 2018. The Bill was criticized heavily by many
experts although it was passed with good intentions. The merits and
demerits of the Bill are:

Merits

 By imposing a ban on egg donation and sale of embryos, this will help
in curbing child trafficking and other unlawful practices.
 In commercial surrogacy, many poor women are exploited and are
made to go through with the pregnancy at very low rates. In such
cases, since the woman lacks awareness and finances, she is not fully
aware of what she is being made to do and the consent obtained is not
with complete knowledge.
 In this industry, it is often the middlemen who execute the surrogacy
agreements and take a large amount of money paid by the parents,
and only about 25% of the sum goes to the surrogate mother. This Bill
is needed in places in places like Gujarat, where ‘baby farms’ exist, i.e.
underprivileged women are collected and distributed as surrogates to
potential parents.
 By including the provision that the intending couple should be married
for at least five years, it is ensured that there is no marital discord and
the couple is in a position to provide a stable home to the surrogate
child and there shall be no custody battles for the child later on.
 By barring live-in couples from going through commercial surrogacy,
the Bill ensures that only those couples who have a stable, long-term
 relationship and can provide a secure and permanent home to the child
are allowed to go through with surrogacy.
 Those women who volunteer to become surrogate mothers often face
ridicule and social boycott from the other members of their village or
community. By passing this will, that ridicule can be avoided.
 This Bill promotes adoption. There are many children in orphanages
that need homes and they can only be adopted till the age of 15 so
adoption can be an option for those couples who already have children
and those who are past the age limit set by this Bill.

Demerits

 Although this Bill promotes adoption as an option, the process involved

in adopting a child is time-consuming and tedious. There is still a
stigma attached to adoption in Indian society and families often prefer
to adopt boys so they can get an heir. The whole process of adoption
needs to be streamlined and simplified if it is to be promoted amongst
the people. 
 The Bill ignores the right a woman has over her body. If a woman has
consented to allow her body to be used in this process after knowing all
the facts and risks and is being paid adequately for it, then there is no
need for any legislature to decide how she should use her body. In
European countries like Netherlands, sex work is legally recognized.
Sex workers also have constitutional rights which are enforced
strongly, unlike in India. Similarly, surrogacy laws should be framed in
such a way that woman fully consents to the agreement and there is no
chance for her to be cheated. There were a lot of women who were
dependent on this practice as a source of income. Putting a complete
ban on this practice has led to a loss in earning opportunity for them.
 Egg donations and purchase and sale of embryos have been banned in
order to curb child trafficking and nab the illegal surrogacy racket.
However, a complete ban will not fix the situation. Policies need to be
framed and laws need to be implemented in such a way that the issue
is resolved without banning the entire industry.
 The demand for surrogacy is not going to disappear suddenly because
of the ban and the Bill will only lead to the creation of a black market
that might increase the chances of exploitation of surrogate mothers
and they will not have any platforms to approach for legal recourse in
case of a breach of contract. Wherever there is a lacuna in the demand
and supply for any product and there is a ban on that product, illegal
markets emerge and they tend to thrive due to high prices. The
practice of illegal organ trade is one such example. In spite of
restricting donations of organs to only close relatives and other
altruistic donors, India is still one of the biggest organ markets,
especially for kidneys. The government should ensure that the
surrogates are properly informed about the medical and economic
impacts of surrogacy. It should also be ensured that all surrogacy
contracts mandatorily talk about the medical care and nourishment of
the surrogates not only during the pregnancy but also during the post-
partum period. The decision to rent or sell one’s vagina or womb
should be that of the owner only and nobody else, not even the
government, should get to govern the woman’s own body. If the
government cares so much about protecting women from exploitation,
it should try its best to eliminate the circumstances which force a
woman to rent out her womb.
 The biggest question that needs to be answered is how non-payment
for surrogacy would prevent exploitation. Defining exploitation from the
point of view of money is a narrow way of looking at the social reality.
There is no guarantee that the altruistic surrogate mother will not be
coerced to bear the child. One advantage of allowing commercial
surrogacy is that once the surrogate mother is paid all her dues and
the baby is delivered to the parents, they can keep her out of their
lives for good. There will never be any question of bonding between the
child and its birth mother since they will hardly get any time together.
However, this Bill insists on altruistic surrogacy only through close
relatives which will ensure that the child and its birth mother will
remain in close proximity all their lives. This will create a complicated
situation full of emotional and ethical dilemmas. Thus, it is better if
there is a certain amount of detachment in such procedures. Moreover,
 there is no guarantee that there will be no exploitation of a poor
woman by the rich commissioning parents in the altruistic surrogacy.
Also, receiving a form of payment would help the surrogate mother in
developing a psychological detachment from the foetus and would give
her more incentive to part with the child after birth. It is also
impossible for any official authority to track ‘gifts’ being exchanged
between the parties in the name of paying ‘compensation’. 
 One of the most controversial points of this Bill is that it bars
homosexual couples from going through with surrogacy. Since the
concept of gay marriage is still alien to Indian society even after
decriminalizing sexual conduct between homosexuals, surrogacy was
the only opportunity for them to raise children of their own. But by
adding this provision of banning homosexuals, the government clearly
shows its bias against the LGBT community and this proves that Indian
society is yet to accept anything apart from heterosexual relationships.
This provision is the last straw which shows that homosexuals still do
not have any rights to be accepted, get married or to start a family,
along with the risk of persecution.
 Critics feel that this Bill seeks to discriminate on the basis of marital
status, age, sexual orientation and nationality. A rational nexus should
exist between the objective of passing a law and the actions allowed as
a result of such discrimination. There appears to be no rational nexus
between preventing a specific class of couple from entering a surrogacy
agreement and prevention of exploitation of women. Since the nexus is
deemed unreasonable, the constitutional validity of such a provision is
questionable. Right to Life under Article 21 of the Constitution includes
the right to reproduction and parenthood and also the right to privacy.
The government cannot interfere with how people decide to reproduce
and infertility should not be made a condition necessary for surrogacy.
Moreover, qualifications like being married for five years are arbitrary.
The question is why a limit of five years has been decided and why not
four or six. This arbitrariness goes against the principles of article 21
which is against making arbitrary laws.
 The Bill denies the right of surrogacy to couples in a live-in relationship.
Although the female partner has the same rights of maintenance as the
 wife does and there can be a presumption of marriage if the couple has
been living together for a very long period of time. The reasoning
provided is that in case the couple separates, there will be no stability
for the child. But the same can be said for married couples as there is a
possibility of divorce. On similar grounds, it can be said that once the
mother dies, the child should be taken away since both parents are
required to provide a nurturing environment but one father is never
deemed to be not enough for a child. Similarly, non-genetic, single
people and those living together should be trusted to look after the
child. After all, the fact that they are willing to contribute the time and
money to go through this whole process shows that they are
determined to become parents and do as good a job as they can.

Landmark Judgments                             

K. Kalaiselvi vs Chennai Port Trust (2013)

In some cases surrogacy is the only available option for parents who wish to
have a child that is biologically related to them, the Apex Court contended in
the case of K. Kalaiselvi vs Chennai Port Trust (2013).

Surrogacy may be of four types, viz:

 Traditional Surrogacy - It is also known as the “Straight Method”.

This method requires the surrogate mother to get pregnant through
natural means. However, at the birth of the child, she is required to
renounce all rights over the child and hand it over to the couple
seeking surrogacy, who shall rear it as their own. There are many
methods of fertilization in this method, namely, home artificial
insemination using frozen sperm or Intrauterine Insemination or
IntraCervical Insemination.
  Gestational Surrogacy- It is also known as the “Host method”. In
this method, the surrogate mother is not the biological mother of
the child. She is merely the gestational carrier of the child. The child
is conceived through egg donation. 

 Altruistic Surrogacy- This is the kind of surrogacy the current

Indian laws expect. By this method, the surrogacy seeking couple
merely takes care of the medical expenses and other pregnancy-
related expenses of the surrogate mother. However, no money for
the gestation and rewards are provided for the renouncement of the
rights over the child.

 Commercial Surrogacy- It is a form of surrogacy which invites the

surrogacy seeking couple to pay off the surrogate mother for her
gestational services. Usually, financially affluent couples resort to
this method. Even though the method is strictly forbidden in India,
Commercial Surrogacy is legally allowed in quite a few countries.
Although this may prove to be a good source of income for low-
income women, these countries are referred to as ‘Baby Farms’-
which is quite an emotionally offensive term in nature.

Baby Manji Yamada vs Union Of India &

Anr(2008)
Baby Manji Yamada vs Union Of India & Anr(2008) was filed under Article
32 and raised some pertinent questions. The case was filed by the
grandmother of the surrogate baby, Manji. The father of the baby and his
wife sought surrogacy in India and flew back to Japan after they succeeded.
However, within nine months of this event, the couple separated and the wife
did not want the baby, which wasn’t biologically hers. The British-colonial
laws of India did not permit a single father to seek surrogacy in India and
thus he could not take her back, making her the first surrogate orphan of
India. Eventually, the Apex Court had to step in and grant the custody of the
baby to the grandmother, who then took her back to Japan with her.
However, the case raised some pertinent questions about the abandonment
of surrogate children and the need for its regulation. It also brought to light
the massive money-making business that the rent-a-womb capital of the
world had under its wings.

 Jan Balaz v. Anand Municipality (2009)

In the case of Jan Balaz v. Anand Municipality (2009), the question of the
nationality of a surrogate child was brought under question. The child was
born to the surrogate mother of Indian nationality. However, the father of
the child, seeking rights over the child, was a German national. After the
child was born, Germany refused to give nationality to the child. The entire
question was more spun because there were no precedents concerning the
nationality of a surrogate child prior to the case. The case gained exponential
momentum as it progressed. In the instant case, the identity of the two
babies has already been established, Since they were born to an Indian
national, and hence citizens of India within the meaning of Section 3(1)(c)
(ii) of the Citizenship Act. The babies were allowed to come home as long as
their parents went through with a required adoption. They had to complete
the inter-country adoption process supervised by the Central Adoption
Resources Agency.

P.Geetha vs The Kerala Livestock

Development(2014)
In the case of P.Geetha vs The Kerala Livestock Development(2014) the
Apex Court contended that since the biological mother of a surrogate child
does not go through the gestational period, she is not entitled to maternity
leave, along with the maternity benefits.

Conclusion
From being mentioned in the ancient texts to becoming an accepted practice
and a source of income for a country to being regulated with stringent
guidelines, the practice of surrogacy has gone through many changes which
reflect the position of society at that point of time. This was a practice which
was very common during the ancient times yet misused as we can see in the
example of Kunti who got a boon which was very inappropriate for her age.
Between the years 2002 to 2018, India had become a hub for commercial
surrogacy and this practice was unregulated since there was no legislation
governing surrogacy. However, commercial surrogacy was banned in 2018
and a lot of regulations were put in place. However, instead of banning an
idea totally, regulations should be made so that the idea doesn’t become
exploitative or doesn’t get misused. A woman should be saved from
exploitation but she should be the final decision-maker as far as her body is
concerned.

If we look at how abortions were carried out before they were made legal,
we would realize that there is always a loophole in each and every law which
can be exploited and would render the purpose of that particular legislation
useless. Instead of making surrogacy exclusive for infertile married couples,
the State should ensure that everybody gets the chance to procreate and
those who help them in doing so get their due, financially or otherwise. A
country’s laws reflect the attitude of its people and every nation should aim
to move forward with the times, instead of going back in time by making
regressive laws. The practice of surrogacy has been marred by a lot of
controversy and the issue of what should be allowed morally. The current
legislation, while well-meaning, shows a myopic view of what is better for
women and an ugly bias towards homosexual and live in relations. It does
not reflect the current times and is full of arbitrary rules which need to be
done away with.