Judicial approaches to deal with the problem with help from HC and SC judgements.

Before 2005, Surrogacy in India and Indian surrogates was

becoming extensively popular owing to the lack of regulatory laws,
easy access offered by Indian surrogacy agencies and relatively
lower procedural cost. An estimation, by a study conducted by the
United Nations, stated that surrogacy was offered in India at just a
third of what it costed in the United Kingdom, a fifth of what it
actually costed in the United States and an industry worth $400
million. A need was felt to regulate the existing framework with an
eye on the fact that infertility was much prevalent in 3.9 to 16.8% of
the Indian population. Thus, the Indian Council of Medical Research
(ICMR) together with the government drafted Assisted Reproductive
Technology (ART) bill, which was introduced in 2014.

The Indian Council for Medical Research has given guidelines as

National Guidelines draft after undergoing extensive debates, with
participants from seven metro cities, Indian doctors and
International doctors. The National Commission for Women and the
National Human Rights Council have also played a pivotal role in
formulising and thereby finalizing the Assisted Reproductive
Technology (ART), which was finally passed by the both the houses
of the Parliament and later on was given the signature of the Hon.
President of India, thus enacted as a law.

In 2013, the Indian government banned surrogacy by foreign

homosexual couples. In 2015, surrogacy was banned in India as a
commercial business, permitted only for research purposes.

Legislations in act:

Assisted Reproductive Technology (ART) Bill, 2013 was passed

by the Parliament and finally became a law in 2022. The provisions
of the act says that only Indian heterosexual couples who have
been married for at least 5 years and have been certified as infertile
would be allowed to undergo the procedure.
The Surrogacy (Regulation) Bill, 2019 was introduced by the
Government of India in Lok Sabha in 2019. According to the bill,
surrogacy is defined a s a procedure where a woman gives birth to
an offspring for an intending couple and hands over the child to
them post birth. The bill however clearly prohibits commercial
surrogacy but allows it for altruistic cause.
Altruistic surrogacy does not involve any monetary compensation to
the surrogate mither except for the medical expenses alongside the
insurance. Whereas, commercial surrogacy also includes monetary
benefit beyond the medical bills.

Thus, the various bills and laws, pertaining to surrogacy, have been
devised bearing in mind the fact that surrogacy must not be used as
commercial industry but only to cater the need of the want to be
parents who have proven grounds of infertility.

Judicial pronouncements:

The court of law has always been pivotal in bridging the gap
between the laws enacted by the Government of India and the
citizens. It has always functioned withing the procedures as stated
in the constitution and lived to its tag of serving as the Guardian of
the Constitution of India. Discussed below are some of the cases
where the courts have taken the up the matters curtailing to
surrogacy, and its complexities, and has pronounced its sentences
and directed the Government of India to act as per its observations.

Baby Manji Yamada v. Union of India (2008)

In 2008, a baby named Manji Yamada, born in India via the medical
procedure of surrogacy, was denied permission to leave India for
three months post birth as she neither had Indian citizenship nor
Japanese. This problem was presented before the Supreme Court
of India in 2008. The paramount court directed the Government of
India to issue a travel certificate to the baby and later on the baby
was granted one-year visa by the Japanese government on
humanitarian grounds.
Jan Balaz vs. Anand Municipality (2009)

In 2009, a case was filed before the High Court bench of Gujarat
with regard to citizenship of two twin babies born in the district of
Anand via surrogacy procedures. The parents were of German
origin whereas the twin born in India, were Indian citizens. Thus the
court observed that the court was categorically concerned about the
rights of the two new born, innocent babies, more than the rights of
the natural and biological parents, the surrogate parties involved, or
the part who has played the role of the donation of the Ova. It also
stated that the emotional and legal relationship of the offspring with
the surrogate mother and the donor of ova could not be kept at bay
and is of equal importance.
As there was no structural laws defined to deal with the situation,
the court took conscience of the complication. The court then
considered the prevalent laws in the countries like Ukraine, Japan,
and the United States and then announced its judgement.
As India does not offer dual citizenship, the children were required
to obtain Overseas Citizenship of India if they were in possession of
non-Indian citizenship. Thus, following the due procedure, the High
Court conferred Indian citizenship to the twins and directed the
Indian government to facilitate their exit to Germany.

Rama Pandey vs Union Of India (2017)

A case was petitioned before the Bombay High Court in 2019,

wherein the petitioner, who chose the route of surrogacy to bear a
child, was denied maternity leave by her employer.
The High Court took conscience of the situation and thereby
announced its verdict ordering the employer to grant maternity
leave to the petitioner as a women cannot be discriminated, as far
as maternity benefits are concerned on the grounds that the
offspring has been conceived through surrogacy.