Surrogacy Law of India - Group 1Amarendra, Akshat, Amritanshu, Ankita, Aravind, Dipak

Understand Indian Surrogacy and provide legal recommendations

Can woman share/sell her womb?

Can baby be sold as product?

Question for you to think uponIf women is not able to give natural birth, does it means she should not become biological mother, by any means, in her life?

Don’t she have desire to experience motherhood?

Definition & Types of

Surrogacy

Emergence of Surrogacy in

India

Foreign countries view on surrogacy

Typical Surrogacy

Process

Stakeholder Analysis

India’s Legal PositionExperts ViewsCases

Our Recommendations

Roadmap

Our Recommendations

Surrogacy The practice by which a woman becomes pregnant and gives birth to a child in order to give

it to someone who cannot have children

Surrogate MotherWoman who comes into the agreement to carry someone else’s baby. The Surrogate mother

carry the baby to the term and gives birth to him/her and then it is given to its intended parents

Surrogacy ContractIt is an agreement or arrangement between the two parties, in which surrogate mother will

carry and give birth to a child. After giving birth to the child, child will be handed over to the intended parents

Classification of Surrogacy

• Traditional Surrogacy• Gestational Surrogacy• Commercial Surrogacy• Altruistic Surrogacy

Traditional surrogacy is getting banned because biological relationship between the mother and the child make it more complex when parental rights or the surrogated agreement is opposed

Emergence of Surrogacy in India • Surrogacy is Rs. 900 crore flourishing business growing at the rate of 20% YoY• Commercialized in 2002• In 2004 alone around 150,000 foreigner visited India for Surrogacy• More than 3,000 fertility clinics are opened in last 10 years, 10 fold increase as of 2002 • ART clinics follows the guideline of ICMR and NAMS • Surrogacy expenses are nearly 50% less in comparison with other countries• Indian clinics charge 1/3rd of the price as compared to other countries like UK, US etc.• Surrogates need to follow the terms which ART clinics tell them to perform• Each birth costs Rs. 12 lakhs, out of which, a surrogate mother gets only 30 -35% (i.e Rs. 3 – 4 lakhs)

apart from monthly allowance for her food and nutritional supplements• Awareness among the surrogated mother is drastically low• Success rate of surrogacy is about 60% due to healthy Indian mothers

Surrogacy Laws in other parts of the worldCountry Status with respect to Surrogacy

Australia • commercial surrogacy is a criminal offense, only altruistic surrogacy is permitted under Assisted Reproductive Treatment Act 2008

• No law at all in many territories• In Australian Capital Territory, New South Wales and Queensland, it is an offence to

enter into any kind of international commercial surrogacy arrangements• Penalties extending to imprisonment from up to one year to three years.

France • All forms of surrogacy is illegal• No person/couple can adopt a surrogate baby under articles 6, 353 and 1128 of the

Civil Code

Canada • No consensus throughout Canada• “The Assisted Human Reproduction Act” (AHRC) permits only altruistic surrogacy• Quebec province’s civil code makes commercial as well as altruistic surrogacy

unenforceable under law. It doesn’t recognise the intended mother as legal, not even through adoption even if that leaves a child with no legal mother at all

Surrogacy Laws in other parts of the world…Country Status with respect to SurrogacyIsrael • In March 1996, "Embryo Carrying Agreements Law" legalized gestational surrogacy

• State-controlled surrogacy, each & every document must get state approval• Can be done only by Israeli state citizens of same religion• Religion, beliefs & culture dominates the law, numerous restrictions applied• Since 2014, same-sex couples can enter a surrogacy arrangement or agreement within Israel

Japan • In March 2008, the Science Council of Japan proposed a ban on surrogacy and said that doctors, agents and their clients should be punished for commercial surrogacy arrangements

Russian Federation

• Gestational surrogacy and commercial surrogacy both are legal• Practically available to all adults willing to be parent be it couple or single, regardless of sexual

orientation• Certain medical conditions has to be satisfied such as regular IVF failure, reproductive diseases• The Family Code of Russia (art. 51-52) and the Law on Acts on Civil Status (art. 16) are

especially enacted for registration of surrogate children• Only surrogate’s consent is required, no need of adoption, no need to be genetically related• Intended parents are the only parent, SM’s is not mentioned as parent anywhere• Foreigners have similar rights as Russian citizens viz. surrogacy laws

Surrogacy Laws in other parts of the world…Country Status with respect to Surrogacy

United States of America

• Surrogacy laws vary from state to state• Some have written legislations, while others have developed common laws for dealing

with surrogacy issues• Few states facilitate surrogacy and surrogacy contracts however, others simply refuse

to enforce them• In certain jurisdictions, commercial surrogacy is heavily penalised• Those states which are surrogacy friendly tend to enforce both commercial and

altruistic surrogacy contracts, hassle free recognition of intended parents & child• Some states which are relatively surrogacy friendly only offer “support” for married

heterosexual couples• Traditional surrogacy finds little to no legal support• California, Illinois, Arkansas, Maryland and New Hampshire are surrogacy friendly

states• Non-friendly states allow people to get benefited by other surrogacy-friendly states

Journey Map – Where can law interject?

Stakeholders Analysis Stakeholders Reasons Risks

Intended Parents • Infertility• Risky pregnancy• Same sex couple• Single parent• Bachelors/Spinster

• Shocking cases like parents look for organ transplant for their sick child

• Illegal under section 377 of IPC

Surrogate Mother • Help childless couple• Improve economic

conditions

• Pre and Post pregnancy health conditions• Miscarriage conditions• Blackmailing post child birth

Fertility specialist / Doctor

• Monitor baby growth • Care of surrogate mother• Medical Advancements

• Violation of Medical norms like imposed C-Sections, Multiple implantations, etc.

• Sex-selective surrogacy research• Avoidance of post pregnancy care

Surrogacy broker / Agency

• Commercial business• Clear up misconceptions• Convince women

• Violation of Ethical norms• Marginalized women will be exploited• Make bigger profits

Stakeholders Analysis…Stakeholders Reasons Risks

Surrogate child • Information of surrogate mother

• Fair care and good life

• Abandon of child by intended parents on medical or other grounds

• Violation of Child rights

Lawyers for both parties (Legal)

• Smooth contract • Following laws of land

• Hiding terms of contract • Violating legal terms

Surrogate Family & Society(Social)

• Providing parental care at pregnancy period

• Non- acceptance by family members post pregnancy

• Pushing young women/Wife into surrogacy for money by in laws/husbands

Government & Judiciary system of both countries

• Protecting women and child rights

• Fair compensation • Monitoring ART clinics• Resolving issues

• Enactment of law and implementation• Inefficiency in monitoring

2015

Today2002 2004 2006 2008 2010 2012 2014

Surrogacy was commercialized in India2002 ICMR published guidelines for ART clinics and Banks

2005 Supreme Court Judgement on 1st surrogacy case: Baby Manji Yamada v. Union of India

29th Sep, 2008ICMR first draft on ART (Regulation) Bills and Rules

2008Report on "Need for regulation of surrogacy" by Law Commission of India headed by Honorable Dr. Justice AR. Lakshmanan 5th Aug, 2009

ICMR ART bill- First Update2010

ICMR ART bill- Second Update

2013 Private Member Bill on Surrogacy (Regulation) by Dr. Kirit Premjibhai Solanki, MP from Gujarat 8th Aug, 2014

India’s Legal Position

ICMR final ART bill tabled in winter session of parliament but not passed

2014

Unfortunately “In this business, the baby is the product. The surrogate is the means of production. Even those who care for the surrogate do so until the product is delivered” - Ranjana Kumari, Director, Centre for Social Research

“Surrogacy contracts typically exclude the surrogate herself and are usually between the clinic and the commissioning parents, who agree to accept all the consequences of their decision”

- Gita Aravamudan, Author of book

What expert says…

“I think India should worry about treating its surrogates in a more humane manner,” - Saumya Pant, Associate Professor, MICA

“I think it is bad enough that we do not have a law, but it is worse that the one being debated doesn’t address [significant] questions like middlemen,” - Anurag Chawla, lawyer for surrogacy

“The lawmakers have failed me” - Surrogate Mother

Legal Cases and Judgement

Indian • Baby Manji v Union of India – Commissioning Parents got divorced • Jan Balaz v Union of India – What will be the nationality?• K.Kalaiselvi v Chennai Port Trust – Maternity leaves and benefits• P. Geetha v The Kerala Livestock Development – Maternity leaves and benefits• Child abandoned by Australian couple – One of the twins abandoned• KT Gurumuthy, Fertility Expert arrested – Surrogacy Fraud

Others• Thailand – Gammy case, 13 surrogate children• Britain – Beasley v Charles Wheeler and Martha Berman

Exploitation or Mutual Assistance?

Surrogacy is definitely a boon for childless couples, there are many legal, economical and social factors around it that must be well taken care of..

Recommendations

• Nominee for the Surrogacy Mother, Sudden Death of a lady named pinky Minimum & Maximum age of intended parents

• Maternity leave for surrogate mother/intended mother• Handle force surrogacy • Surrogate mother must not charge beyond the contracted price• Surrogate mother protection by standardization of surrogacy fee (X percentage of

Surrogacy charge)• Agency profit should be x percentage of the total Surrogacy charge to avoid exploitation of

surrogate mothers• SEC and financial background of parents should be checked• If the parent dies or become not reachable after pregnancy then

• Nominee of the child should take care• Protect Surrogate mother: Monetary Bond for intended parents

References • https://web.duke.edu/kenanethics/CaseStudies/BabyManji.pdf

• http://www.legalservicesindia.com/article/print.php?art_id=1188

• http://timesofindia.indiatimes.com/india/German-surrogate-twins-to-go-home/articleshow/5978925.cms

• http://twocircles.net/2013mar10/surrogacy_gaining_acceptance_india.html#.VdoAU_mqqkp

• http://indiankanoon.org/doc/28691523/

• http://www.ndtv.com/south/woman-having-baby-through-surrogacy-entitled-to-all-maternity-benefits-high-court-723540

• http://indiankanoon.org/doc/28343729/

• Youtube – innocent causalties

• http://www.thehindu.com/news/national/australian-couple-abandons-child-from-indian-surrogate-mother-bolsters-campaign-for-strict-laws/article6487751.ece

• http://indianexpress.com/article/world/world-others/australian-couple-abandoned-surrogate-baby-in-india-over-gender-says-court/

• http://abcnews.go.com/US/story?id=92627&page=1

• http://www.dailymail.co.uk/news/article-65930/Surrogate-sues-couple-turned-twins.html

• http://blog.indiansurrogacylaw.com

• http://www.dailymail.co.uk/indiahome/indianews/article-2547681/K-T-Gurumurthy-Celeb-fertility-doctor-treated-Tara-Anuradha-faked-medical-degrees.html#ixzz3jfmEmTca

• http://www.telegraph.co.uk/news/worldnews/northamerica/usa/1337422/New-parents-found-for-surrogate-mothers-twins.html

References…

• https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/268039/surrogacy.pdf, n.d.

• https://en.wikipedia.org/wiki/Surrogacy, n.d.

• http://www.surrogacylawsindia.com/index_inner.php, n.d.

• http://america.aljazeera.com/articles/2015/1/14/the-wild-west-ofsurrogacy.html, n.d.

• http://www.surrogacylawsindia.com/legality.php?id=%207&menu_id=71, n.d.

• http://www.legalservicesindia.com/article/article/surrogacy-its-legal-implications-1817-1.html