HINDU SUCCESSION ACT,19563.

HINDU ADOPTION & MAINTANANCE ACT,19564.

TRANSFER OF PROPERTY ACT,1882

the Bill of 2016 in the same form was re-introduced in the Lok Sabha as Surrogacy (Regulation) Bill, 2019
(Bill No. 156 C of 2019) and was passed once again on 05 August 201912

1.Is the case maintainable before the sessions court or

district court.

Black's Law Dictionary defines surrogacy to mean the "process of carrying and delivering a child for another
person".
2.Can the surrogacy agreement be enforced despite the
unforeseen death of the intended parents and is Kriti
entitled to any parental rights.
A. Whether the agreement is commercial or altruistic in
nature.
Assisted Reproductive Technology Regulation Bill, 2008- Surrogacy agreements
were to be considered like other legal contracts in order to be legally enforceable
under the Bill, which basically meant that the terms of the 1872 "Indian Contract
Act" applied to Surrogacy arrangements.
The legal enforceability of such surrogacy agreement is a questionable issue as
evident in the case of Baby Manji Yamnda v. Union of India where in it was found
that the surrogacy agreement entered between the parties is held null void or
without any legal effect.
Hon’ble Supreme Court in the case of Baby Manji v. Union of India. 2008 13 SCC 518. The Court in this case
was to recognize surrogacy as legal and to validate the contract and the terms of the contract on which the
surrogacy will work out.
3.Who holds the legal custody of the child born out of the
surrogacy agreement.
The Hon'ble Supreme Court in Baby Manji Yamada vs Union of India17 dealt with the custodial rights of a
baby girl for a father who separated from his wife during the gestation period of the surrogacy, leaving
the fate of the baby in dire uncertainty. The Supreme Court, upholding the validity of the Surrogacy
Agreement, held that the genetic father of the child deserved custodial rights, and the Government was
instructed to issue the passport to baby Manji Yamada, who returned to Japan with her grandmother,
who had petitioned the Apex Court

4.Is kriti entitled to compensation?

Grouds: 1. whether it is coming under a commercial
surrogacy.
2. Or it violates the right of intending couple.

P- Baby Manji Yamada v Union of India: There were matrimonial discords between the commissioning
parents. This case concerned the production/custody of a child Manji Yamada given birth to a Surrogate
mother in Anand, Gujarat, under a Surrogacy Agreement with her entered into by Dr. Yuki Yamada and
Dr. child custody were given to the child grandmother. The Court relegated her to the National Commission
for Protection of Child Rights constituted under the Commissions for Child Rights Act, 2005. Ultimately, baby
Manji left for Japan in the care of her genetic father and grandmother.

D- The legality of Object – Section 23- Surrogacy contracts are illegal or against public policy and must be
addressed independently. As per the Surrogacy Regulation Act of 2021, Commercial Surrogacy is illegal and
punishable.

The 228th report of the Law Commission of India recommended the prohibition of commercial surrogacy in
India due to the same reasons mentioned above. Surrogacy (Regulation) Bill which was passed in 2019 aims to
regulate the industry of surrogacy.

This act bans commercial surrogacy in India and allows only altruistic surrogacy for couples who are not able
to conceive a child

o Exploitation of the Surrogate and the Child:

 One could argue that the state must stop the exploitation of poor women under
surrogacy and protect the child’s right to be born. However, the current Act fails
to balance these two interests.

5.Could the child born out of surrogacy agreement be

considered a potential heir of the Chaudhary’s estate.
Grounds. 1. Whether child have rights over both self
acquired Property or ancestral property.
2. Or it is violating the right of a child born out of the
surrogacy agreement.
D- Agrandchild does not have any birthright in the self-acquired property of his
grandfather if it has been allotted to his father in a family partition in his capacity
as a legal heir and not as a coparcener under theHindu Succession Act 1956.
According to the law, a grandson has no birthright to his grandfather's self-
acquired property. Yes, the grandson has a birthright to the ancestral property;
that is, as soon as he is born, his share in the property that his grandfather has
inherited from his ancestors becomes confirmed.

Child born out of a surrogacy arrangement is not

recognized in the eyes of law and its legal
position as a legal heir remains questionable.
1. ARGUMENTS BASED ON INDIAN CONTRACT ACT, 1872
CONSIDERATION
The very concept that the Appellant indulged into a
contract with Ms. Neeta is a proof in
itself that she engaged herself in the act of “Commercial
Surrogacy”. Since the word
“Contract” is enough to prove that there was some
“Consideration” involved as defined
under the Indian Contracts Act, 1872 which further makes
the surrogacy a “Commercial
Surrogacy” which is not just legally invalid but also morally
wrong.

LAW COMMISSION REPORT

To legalize surrogacy, The Law Commission of India has
submitted the 228th Report on
“Need for Legislation to Regulate Assisted Reproductive
Technology Clinics As well As
Rights and Obligations of Parties to a Surrogacy.” The
following observations had been made
by the Law Commission:
Surrogacy arrangement will continue to be governed by
contract amongst parties, which
will contain all the terms requiring consent of surrogate
mother to bear child, agreement
of her husband and other family members for the same,
medical procedures of artificial
insemination, reimbursement of all reasonable expenses
for carrying child to full term,
willingness to hand over the child born to the
commissioning parent(s), etc. However,
such an arrangement should not be for commercial
purposes.
UNLAWFUL CONSIDERATION
Non-commercial surrogacy agreements, providing only for
‘compensation’ equivalent to
reasonable expenses incurred by the surrogate mother,
pass the touchstone of public policy
considerations under Section 23 the Indian Contract Act,
1872.

P- a child born through surrogacy shall be presumed to be the legitimate child of

the intended parents/s and shall have all the legal rights to parental support,
inheritance and all other privileges which a child born naturally to the intended
parents/s would have had.
6.Does the grandfather’s verbal intent hold any legal
weight.
Grounds: 1. Whether an immovable property may be
transfer orally. Which carrying the value more than 100 rs.
2. Or grandfather has his personal right over his property,
whether after making oral will ,hence he may alter?

P-

D- The Transfer of Property Act came into effect on July 1st, 1882. Transfer of property can be done through a
written deed or orally. Section 9 of TPA clearly states the concept of Oral Transfer. It can be clearly seen that
Oral Transfer can be done until it is expressly written that a written deed is necessary.

D- Section 66. Mode of making, and rules for executing, privileged wills.
(h) A will made by word of mouth shall be null at the expiration of one month after the testator, being still
alive, has ceased to be entitled to make a privileged will.

In the case of Balaz v. Union of India the Supreme Court of India has given the verdict that the citizenship of
the child born through this process will have the citizenship of its gestational carrier. Surrogacy was regulated
by the Indian Council of Medical Research guidelines, 2005.

To get a certificate of essentiality utterly makes them ineligible to beget children through
surrogacy. This infringes the right to reproductive autonomy of the intending couple under Article
21. TheRight to reproductive autonomy means having the power of the law to protect and allow
yourself the right to make your own choices about birth control, pregnancy, and having children.
It is an inalienable right given to a person by virtue of being born as a human being. It was
established by the Supreme Court in the case of B.K. Parthasarathi v. Govt. of Andhra Pradesh[1],
that the Right of Reproductive Autonomy of an individual is a facet of his Right to Privacy whilst
agreeing with the decision of the US Supreme Court in Skinner v. State of Oklahoma , which [2]

characterised the right to reproduce as one of the basic civil rights of man, a fundamental right as
per Article-21 of the Constitution. In the case of R. Rajagopal v. State of Tamil Nadu[3] the Supreme
Court held that the right to privacy is implicit in the right to life and liberty guaranteed to all
persons by Article 21. It is a right to be let alone. The Act of 2021, by mandating a person to
disclose for certificate of essentiality infringes the right to privacy and dignity of the intending
couple under Article 21. It was held by the Supreme Court in the landmark case of Navtej Singh
Johar v Union of India , that the citizen has a right to safeguard the privacy of his own, his family,
[4]

marriage, child bearing, procreation, motherhood, and education among other matters relating to
him and that the matters of sex, sexuality, and procreation are not only the private choices but
also the questions of dignity.

TEST OF CONSTITUTIONAL SCRUTINY FACED BY THE SURROGACY (REGULATION) BILL, 2020:

Keeping in mind the decision of the Apex Court in Devika Biswas v. Union of India,20 the right to
reproduction was described as an essential facet of the 'Right to Life' under Article 21. Women's
reproductive rights include the right to carry a baby to term, giving birth, and raising children.

Further, in Consumer Education and Research Centre and Ors. v. Union of India 23, the Supreme Court
stated that the expression 'life' assured in Article 21 of the Constitution has a much broader meaning and
includes the right to livelihood; hence that statutory ban on commercial surrogacy in this regard is yet
another example of the new Bill failing the test of constitutional scrutiny and remaining in violation of the
rights of the very individuals it vows to protect.

Conclusion for defendant

If basic reproductive health needs are more available to Indian women as surrogates than as

mothers of their own children, then Indian women will prefer bearing the child of others than

their own’s. Thus, women selling their services are against the values of the family, community and

human dignity. Low surrogacy costs, coupled with the casual legal environment, have

therefore made India a popular fertility destination. This is despite the potential stigma

attached to serving as a surrogate in India, which compels many Indian women to do so

quietly and to live apart from their families during the duration of their pregnancies,
interferes with nature and leads to exploitation of poor women in underdeveloped countries

who sell their bodies for money. On the other hand, active legislative intervention is required

to facilitate correct uses of the new technology. It is high time that the Indian Legislature

grapples with the issues arising out of use of new reproductive technologies and relinquishes

the cocooned approach to legalization of surrogacy adopted hitherto.