1 | P a g e

THEME: COMMERCIAL SURROGACY IN INDIA

TITLE: YOU CAN USE MY UTERUS

2 | P a g e

“YOU CAN USE MY UTERUS”

Apoorva Mishra

ABSTRACT

The first instinct of any biological mother sees the surrogate her reaction would be - "I

wanted the surgeon to sew me and she is carrying my frozen ovaries".

Surrogacy is the practice of gestating a child for another couple/man/woman. India currently

has no law regulating assisted reproductive technologies. It is an undisputed fact that the

Indian legislation in respect to surrogacy is limited and Indian laws are expected to change

in response to the growing demand for surrogacy arrangements. The legislators are

struggling hard to get things on an ideal track. The guidelines that govern the surrogacy

arrangement in India has unaddressed lacunas.

There are several challenges that have come up and have never been addressed. The mere

idea of selling a baby casts several moral obligations on everyone involved. There is a

chance that people start using this as a tool to exploit women. Further there exist legal issues

such as who qualifies to be a surrogate mother, what are the rights and duties of a surrogate

mother, what are the provisions for the maintenance & protection of the surrogate mother so

on and so forth.

This paper seeks to highlight the status quo of the legislation in this regard. It also provides

an in depth doctrinal analysis of the existing literature in this regard. Further, the next part

deals with the legal issues pertaining to surrogacy and arguments for and against surrogacy.

The paper has also focussed upon the two landmark cases on surrogacy and has also tried to

give some of its own suggestions. This paper is a humble attempt to discuss the baby farming

which concludes with a set of recommendation that can be incorporated in order to evolve a

better set up in India.

Keywords: Assisted Reproductive Technologies, Indian Council for Medical Research,

Recommendations.

3 | P a g e

INTRODUCTION

Jeremy Bentham looked upon „law‟ as an instrument for securing the “greatest good of the

greatest number” and correctly so. Law, at a particular time, showcases the societal mindset

and undergoes radical metamorphosis to align itself with social change. The question of

„when to‟ employ this instrument for addressing social issues is beset with many conceptual

uncertainties. This article seeks to address one such question with regard to the issue of

surrogacy in India and, in the process, analyzes its various angles in order to establish the

basis which makes it imperative for the legislature to pass a law to explicitly address the

issue.

Reproduction, parenthood and family are matters about which most people hold deep

convictions - convictions which are often based on a certain theological or moral persuasion.

Traditionally, these convictions reflect a socially constructed paradigm of a 'nuclear family'

where reproduction takes place within a permanent relationship between one man and one

woman to the exclusion of all others. This relationship has traditionally been considered to

be mysterious, sacred and personal. One such method of human reproduction which directly

challenges traditional convictions concerning reproduction and the formation of a family is

surrogate motherhood.

In recent times, the advent of new scientific reproductive technologies has conjured up novel

and seemingly intractable normative debates about bioethics and contemporary values in the

field of family law. Infertility of couples strips them of their essential „right to procreate’ and

have genetically related offspring. A new promise has flowered for them with the advent of

new reproductive technologies like artificial insemination, donor egg transplantation, and

surrogacy. Surrogacy, incontrovertibly, is the most controversial of them all.

The literal meaning of ‘surrogate’ is ‘substitute’ obtaining its origin from a Latin word

‘surrogatus’. Surrogacy arrangements are motivated by a desire for a genetically related

child and the disincentive arising out of the prolix adoption procedures coupled with

difficulty in finding suitable child for adoption.

4 | P a g e

Various Definitions of Surrogacy

In the American Law Report, surrogacy has been seen in the following manner:

“…a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to

conceive a child through artificial insemination with the sperm of the natural father, to bear

and deliver the child to the natural father, and to terminate all of her parental rights

subsequent to the child's birth.”1

In the Indian context, Section 3.10 of the guidelines of Indian Council of Medical Research

(ICMR) defines surrogacy as under:

“Surrogacy is an arrangement in which a woman agrees to carry a pregnancy that is

genetically unrelated to her and her husband with the intention to carry it to term and hand

over the child to genetic parents for whom she is acting as a surrogate.”

The Supreme Court of India in the famous case of Baby Manji2, defined surrogacy as:

“A well-known method of reproduction whereby a woman agrees to become pregnant for the

purpose of gestating and giving birth to a child she will not raise but hand over to a

contracted party. She may be the child's genetic mother (the more traditional form for

surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after

having been implanted with an embryo. In some cases surrogacy is the only available option

for parents who wish to have a child that is biologically related to them.”

CLASSIFICATION OF SURROGACY

The essential elements are child-bearing by a surrogate mother, termination of her parental

rights after his birth and payment of money by the genetic parents. If the money paid is

merely to recompense the surrogate for the pain undertaken by her and includes

reimbursement of medical and other expenses, then it is „non-commercial‟ surrogacy. In

contrast thereto, „commercial‟ surrogacy involves payment of hefty sum of money as income

to the surrogate for the service offered by her and surrogacy is thereby looked upon as a

business opportunity.

1 American Law Reports, Validity and Construction of Surrogate Parenting Agreement, 77 A.L.R. 4 70. (1989).

2 Baby Manji Yamada V. Union of India, (2008) 13 SCC 518

5 | P a g e

COMMERCIAL SURROGACY is the process in which an individual or couple pays

a fee to a woman in exchange for her carrying and delivering a baby. At birth, the child is

turned over to the individual or couple, either privately or through a legal adoption process.

Couples with fertility problems, same-sex couples, and single people who wish to be parents

are the most common types of people who seek surrogate mothers.

Surrogacy can simply involve the surrogate mother inseminating herself with the

commissioning father‟s sperm. This is known as „partial surrogacy.‟ Alternatively, in „full‟

surrogacy an embryo is created in vitro, usually using the commissioning couple‟s egg and

sperm, and is transferred to the surrogate mother‟s uterus. Because of involvement of in vitro

fertilization, pregnancy can only be achieved by following treatment in a centre licensed

under the Human Fertilisation and Embryology Act and regulated by the Human

Fertilisation and Embryology Authority (HFEA).3 Approximately, half of all surrogate

mothers are initially unknown to the commissioning couple, while friends, sisters, and sister-

in-law are the most common known surrogates.4 Precisely, it can be mentioned that surrogacy

need not be limited to situations where a woman has been robbed of the opportunity to carry

her own child. Surrogate users might be gay couples, single men, or even women who are

able to carry a child but choose surrogacy due to convenience. India is home to 14 per cent of

the world's estimated 80 million infertile couples. For them, surrogacy has become a gift of

God. It has become like a new promise that has blossomed on them with the invention of new

reproductive technologies like donor egg transplantation, artificial insemination and

surrogacy. And out of them, the most controversial is surrogacy.

3 Jackson, E., 2010. “Medical Law: Text, Cases and Materials” , 2nd Edition, New York : Oxford , pp.828-829.

4 Tim Appleton, „Emotional Aspects of Surrogacy: A Case for Effective Counseling and Support‟ in R Cook, SD Sclater,

with F Kaganas (eds), Surrogate Motherhood : International Perspectives (Hart Publishing : Oxford, 2003) 199-207,200 as

cited in, E., 2010. “Medical Law : Text, Cases and Materials”, 2nd Edition, New York : Oxford, p.829.

6 | P a g e

SURROGACY INDUSTRY IN INDIA

India has the biggest industry of commercial surrogacy. Parents from foreign countries come

to India for surrogacy due to various factors. In India, there are lesser restrictions

comparatively, surrogacy is cheaper, also surrogate mothers are easily available. Because of

all the conveniences here in India with regard to surrogacy, India is becoming the capital of

surrogacy in the world. Now the surrogacy industry of India is a 25,000 crore industry.

Anand, a small town in Gujarat, with a population of around only 1,50,000 people produced

more surrogate children, over the span of four years, than any other country and has acquired

a distinct reputation as a place for outsourcing commercial surrogacy. The clinic located in

this town has given more than one hundred couples the chance to become parents.

Currently, the Indian government has no official, enforceable laws to monitor or regulate the

industry. In 2005, the Indian Council for Medical Research (ICMR) formulated guidelines for

the surrogacy industry, but these suggestions focus on ensuring that the surrogacy process

does not “tax the [intended] couple‟s endurance physically, emotionally, or economically.”5

Specific sections of the document are dedicated to ensuring the protection of the unused

embryos, the children born of surrogacy, and the intended parents, but there is no such

section for protection of the surrogate mothers. The regulations provide no means of

enforcement. Because the surrogacy industry in India remains laxly regulated and

decentralized, few files and no central registry exist to document the various outcomes of the

procedures, the names and nationalities of the intended parents, or information about the

surrogates. This poses a challenge in attempting to regulate commercial surrogacy, since

estimated numbers and projections about the industry vary greatly.6

The dawn of the surrogacy industry in India is widely attributed to the work of one woman,

Dr. Nanya Patel. In 2003, Dr. Patel orchestrated the surrogacy of a woman from Anand,

Gujarat, a rural dairy community with a population of approximately 150,000 citizens. The

woman wanted to serve as a surrogate mother for her infertile daughter who was living in the

United Kingdom. With Dr. Patel‟s help, the woman gave birth to her own grandchild as a

gestational surrogate, and this event fuelled a media frenzy. Dr. Patel was inundated with

5 “Statement of Specific Principles for Assisted Reproductive Technologies.” Indian Council of Medical

Research.

6 Ibid 6

7 | P a g e

requests for surrogacy, and she decided to create a business. Dr. Patel currently runs the

Akanksha Infertility Clinic in Anand, where forty-five local women serve as surrogates in

rotation. At any given time, between twenty and thirty surrogate women are pregnant.7 The

Akanksha Clinic serves as a typical example of the many surrogacy clinics in India.

In India the first gestational surrogacy took place in Chennai in 1994. Later in 1997, a woman

from Chandigarh in India for 50,000 rupees in order to gain medical treatment for her

paralyzed husband approved to carry a child. The Andhra Pradesh High Court upheld “the

right of reproductive autonomy” of an individual as a facet of his “right to privacy”. The

Supreme Court of India in Baby Manji8 Case which involved a Japanese Baby validated

“commercial surrogacy”, and also termed it a virtual industry. When there are commercial

agreements, contracts are signed by both the parties. “The contract is valuable not just as a

legal document but as a way of getting everything done that needs to be discussed out on the

table.” The contract usually tells that both the parties are willing to get into the contract with

free consent and produce a child for the intended parents. This contract will prove as an

essential evidence if in case there arises any dispute between the parties. The sum of

compensation that has to be paid is also clearly mentioned in the contract.

COMMERCIAL v. NON-COMMERCIAL/ ALTRUISTIC

The most important protest of commercial surrogacy contracts is the possible exploitation of

reproductive capacities of financially needy women by upper and middle class couples

resulting in a depreciation of their worth as human beings.9 But the same objections can also

hold for altruistic surrogacy where within a family those with less power might be

pressurized towards altruism.10

It becomes unfair to those surrogates who are not paid, while

7 Pande, Amrita. “’At Least I am Not Sleeping with Anyone’: Resisting the Stigma of Commercial Surrogacy in

India.” Feminist Studies.

8 Supra Note 3

9 Banerjee Swapnendu, Gestational Surrogacy Contracts: Altruistic or Commercial? A Contract Theoretic

Approach, (Feb 2009)

10 Within a family there is a possibility that those with less power and money are likely to be exploited.

Alejandra Munoz, a poor illiterate Mexican woman, was brought illegally to the US on the understanding that when she became pregnant for her infertile cousin the embryo would be flushed out and transferred to her cousin. But later she was told that she was obliged to continue the pregnancy. Alejandra threatened to have an

8 | P a g e

who are paid benefits from that. Therefore it is argued that allowing surrogacy and non

payments may lead to exploit women‟s reproductive capabilities.

In a famous case, Supreme Court ruled out that surrogacy would be acceptable only if it don‟t

involve money.11

But if we go through the judgement of the court, it becomes unfair to the

women because men get paid for their services, which includes donating sperm, then why not

women? If they are helping others who cannot conceive, then should they do out of sentiment

and purity? The authors opine that if one is taking benefit of women‟s reproductive

capabilities, then they do pay for it. But, it should not be taken in a wrong way of earning

money. If India would become “Surrogacy Hub”, the outcome of this consequence would be

disastrous.

MORAL AND ETHICAL OVERTONES

The legal perspective on surrogacy has to be essentially coloured by moral and ethical

overtones on which the public policy considerations are grounded. Since the courts need to

grapple with such issues, it is important to delineate the major ethical issues involved.

The greatest attack against surrogacy is that "creating a child without desiring it

fundamentally changes the way we look at children--instead of viewing them as unique

individual personalities to be desired in their own right, we may come to view them as

commodities or items of manufacture to be desired because of their utility"12

leading to the

danger of rejection of handicapped children. However, the proponents are strongly premised

abortion but her relatives kept her under house confinement, threatening to expose her as an illegal alien.(Stainsby (1993), Stuhmcke (1995)).

11 Baby Manji Yamada V. Union of India, (2008) 13 SCC 518. ( Supreme Court Cases, 13th vol. 2008, referred

page 518)

12 Herbert T. Krimmel, Surrogate Mother Arrangements From the Perspective of the Child, 9 Logos 97 (1988).

9 | P a g e

on the freedom and economic autonomy of women13

and the following resounding note is

pertinent to be quoted in this regard:

“Woman as conscious, moral, social and political being is also woman as

economic being. We cannot separate ourselves from our economic existence or

ignore the value of our reproductive powers. The failure to acknowledge the

economic value of female reproductive labour is blind folly for those who wish

for equity in women's social situation.”14

The issue of surrogacy is afflicted with numerous moral and ethical questions which have

been amplified by such open use of commercial surrogacy.

Is it morally right for a woman to offer herself for a fee, procreate and then sell the

child?

Is it correct to use surrogacy for household needs by married women?

Will not such practices amplify the malady of dowry system whereby a woman is

reduced to a mere economic resource by greedy in-laws?

Surrogacy, if not regulated, will prove to be an avenue of exploitation and subjugation of

women. To crown this, clinching evidence of disturbing trends amongst fertile and young

career oriented married women has emerged whereby they are increasingly resorting to

surrogacy for avoiding interruptions in their careers on account of motherhood. Surrogacy is

not per se a vicious practice and hence it is required to limit its use to only those who are

infertile and have well established constitutional right to access such technology and prevent

it from being misused. Thus, the need for a wholesome „legislation‟ to regulate surrogacy is

evident. It is essential to define the policy choice of such law by looking at surrogacy through

the lens of individual rights and existing state of Indian law and thus to enumerate the basic

techniques of its implementation.

13 See Richard A. Posner, The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J.

Contemp. Health L. & Pol'y 21 (1989).

14 Christine L. Kerian , Surrogacy: A Last Resort Alternative for Infertile Women or a Commodification of

Women’s Bodies and Children, 12 Wis. Women's L.J. 113 ( 1997).

10 | P a g e

THE RISE OF REPRODUCTIVE TOURISM

Surrogacy in India provides various avenues for childless couples to experience the goodness and

responsibility of parenthood. In its endeavour to provide solutions to infertility and childlessness,

the private players of surrogacy have transformed it into a profitable industry which the Indian

Confederation of Indian Industry suggest is expected to grow to an astonishing $2.3 billion

annually. The first reported gestational surrogacy in the world occurred in 1984 when a woman

without a uterus had her eggs transferred to the uterus of a friend who gave birth to the child with

whom she had no genetic relation.15 Thereafter, doctors began using IVF to combine the

husband‟s sperm with donated eggs so that couples in which the wife could not produce healthy

eggs could have a child.16

Surrogacy in India has become an increasingly popular alternative for intended parents

worldwide. India is home to 14 per cent of the world's estimated 80 million infertile couples.

In 2003, India‟s finance minister, Jaswant Singh called for India “to become a global health

destination” and encouraged measures to facilitate a medical tourism industry including

improvements in airport infrastructure.17 Indian State tourism departments are running joint

medical tourism campaigns and medical tour packages with hospitals to attract foreign patients.18

In that regard, a new category of medical visa was introduced and allowed patients and family

members to stay in the country for twelve months instead of the normal six months under a tourist

visa.19

15 WH Utian et al., Successful Pregnancy After an In-vitro Fertilization-embryo Transfer from an Infertile Woman

to a Surrogate, 313 NEW ENG. J. MED. 1351 (1985).

16 SHANLEY, Making babies, making families: what matters most in an age of reproductive technologies,

surrogacy, adoption, and same-sex and unwed parents 103 at 83-84 (2002)

17 Chinai Rupa & Goswami Rahul, Medical Visas Mark Growth of Indian Medical Tourism, 85 BULL. OF WORLD

HEALTH ORG. 161, June 2007

18 Mulay Shree & Gibson Emily, Marketing of Assisted Human Reproduction and the Indian State, 49

development 84, 85 (2006).

19 However, many Indian consular offices overseas have not acted on the directives of the Ministry of External

Affairs in arranging for this class of medical visa. Nevertheless, the Union Government is considering introducing “visas on arrival” beginning in airports in Delhi and Mumbai on an experimental basis in an effort to further promote medical tourism. See Medical Tourism: Centre Considering Visa on Arrival, HINDU BUSINESS LINE, Mar. 29, 2007

11 | P a g e

The CII (Confederation of Indian Industry) estimates that 150,000 medical tourists came to India

in 2005 and it estimated that the number of tourists increased to 450,000 by 2008.20 One estimate

calculates India‟s rapidly growing commercial surrogacy industry is worth U.S. $445 million per

year.21 Infertility clinics, healthcare providers, medical tourism companies, the broader tourism

industry, the Indian government, and the women who provide surrogacy services all profit from

this industry.22 A report by India Brand Equity Foundation and Ernst & Young estimated that

outsourced health care would employ nearly two million people in India in 2008, an increase

from the 20,000 employed previously.

Couples in search of fertility treatment travel not only from Western countries, but also from

neighbouring countries of Sri Lanka, Pakistan, Nepal, Bangladesh, Thailand, and Singapore.

The reproductive segment of the Indian medical tourism market is valued at more than $450

million a year.

Lower Costs

The lower cost involved in surrogacy brings incentives for foreigners to travel to India. A

commissioning party can expect to pay $14,000 to $18,000 to a gestational surrogate in the

United States. Total costs for contracting with a surrogate mother in the United States

fluctuate between $59,000 and $80,000. India‟s current costs are markedly lower than

American standards. In the country where annual per capita income is $500, fees for

surrogates are reported to range anywhere from $2,500 to $7,000.23

Indian surrogates are paid

in instalments over a period of nine months. Many couples come through travel agencies that

20 Chinai & Goswami,; India turning affordable, quality options for medical tourists, THE ECONOMIC TIMES,

Nov. 18, 2008.

21 “Surrogacy a $445 mn Business in India.” The Economic Times , August 25, 2008

22 Kari Points, “Commercial Surrogacy and Fertility Tourism in India.”

23 Haworth Abigail, Surrogate Mothers: Womb for Rent, MARIE CLAIRE,

http://www.marieclaire.com/world/articles/surrogate-mothers-india (last visited Jan. 21, 2014) (Indian surrogates are paid between $5,000 to $7,000, the equivalent of upwards of 10 years‟ salary for rural Indians); see also The Feminist eZine, Is Paying the Poor to Have Children Morally Wrong?, http://www.feministezine.com/feminist/international/Wombs-for-Rent.html (claiming that Brahman surrogates can garner more in fees than those in lower castes);Surrogate Mothers Lined Up in Gujarat, THE HINDU, Mar.2, 2006, (surrogates get paid between 1 and 2 lakhs); Celizic „Wombs for Rent‟ Grows in India (Marketplace radio broadcast Dec. 27, 2007),

12 | P a g e

specialise in medical tourism. These agencies liaise with infertility clinics in India and

organise the couple's trip for a fee.

Thus, Indian costs required for surrogacy is much cheaper than that of United States24

. It is

very apparent that surrogacy is very affordable and more advantageous in India.

Surrogacy and Prostitution

Traditional thinkers claim that surrogacy is similar to prostitution and is intrinsically immoral

because it commodifies women‟s reproductive labour. The very well-known American feminist

Andrea Dworkin states that, “motherhood is becoming a new branch of female prostitution with

the help of scientists who want access to the womb for experimentation and power.”25 According

to her the only difference remains that in case of surrogacy it is the womb and not the vagina that

is being sought. But this kind of analogy between surrogacy and prostitution is definitely not

adequate enough to show that surrogacy is immoral and therefore vehement opinions of do not

pose hindrance in the process of legalizing surrogacy. The contention of liberal feminists is that

surrogacy is an extension of women‟s reproductive labour and personal autonomy is justifiable.

Therefore if women could contract freely to sell their productive labour for wages, then they

should be at liberty to sell their reproductive services.26

Is Surrogacy Profitable to all?

BABY FARMING IN INDIA

At a glance, surrogacy seems like an attractive alternative as a poor surrogate mother gets

very much needed money, an infertile couple gets their long-desired biologically related baby

24 The New York Times, India nurtures business of surrogate motherhood.

25 Dworkin A. Right-wing women: the politics of domesticated females. London: The Women's Press, (1983)

26 Jaggar’s Alison , Feminist Politics and Human Nature, (1983)

13 | P a g e

and the country earns foreign currency, but the real picture reveals the bitter truth. Due to

lack of proper legislation, both surrogate mothers and intended parents are somehow

exploited27

and the profit is earned by middlemen and commercial agencies. There is no

transparency in the whole system, and the chance of getting involved in legal problems is

there due to unpredictable regulations governing surrogacy in India.28

If we look upon the problem of surrogate mothers, things are even worse and unethical. The

poor, illiterate women of rural background are often persuaded in such deals by their spouse

or middlemen for earning easy money. These women have no right on decision regarding

their own body and life. In India, there is no provision of psychological screening or legal

counseling, which is mandatory in USA. After recruitment by commercial agencies, these

women are shifted into hostels for the whole duration of pregnancy on the pretext of taking

antenatal care. The real motive is to guard them and to avoid any social stigma of being

outcast by their community. These women spend the whole tenure of pregnancy worrying

about their household and children. They are allowed to go out only for antenatal visits and

are allowed to meet their family only on Sundays. The worst part is that in case of

unfavorable outcome of pregnancy, they are unlikely to be paid, and there is no provision of

insurance or post-pregnancy medical and psychiatric support for them. Rich career women

who do not want to take the trouble of carrying their own pregnancy are resorting to hiring

surrogate mothers. There are a number of moral and ethical issues regarding surrogacy,

which has become more of a commercial racket, and there is an urgent need for framing and

implementation of laws for the parents and the surrogate mother.29

27 Mishra Suman “Regulating Surrogacy” LL.M Dissertation, SLS. 2009

28 http://www.marieclaire.com/world-reports/news/surrogate-mothers-india

29 The Associated Press (2007-12-30) “India's surrogate mother business raises questions of global ethics” [Last

accessed on 2014 January 21]. Available from: http://www.nydailynews.com/news/world/india-surrogate-motherbusiness-raises-questions-global-ethics-article-1.276982 .

14 | P a g e

SURROGACY IN EYES OF LAW

Legal Aspects involved in Surrogacy

Surrogacy involves conflict of various interests and impacted the primary unit of the society

that is family. Non- intervention of law will not be appropriate in this controversial issue. At

the same time prohibition of surrogacy without any proper grounds would be irrational. The

legal issues related to surrogacy needs to be addressed with proper legislation.

The act of surrogacy is a commercial activity which arises because of the concept of demand

and supply. There is a requirement of a womb that can be rented for the people who need one

and are ready to pay to get an heir for their family. The commercial transactions are governed

by “The Indian Contract Act, 1872”. The Indian Contract Act states that all agreements are

contracts if they are made by the free consent30

of parties competent to contract, for a lawful

consideration31

and with a lawful object32

. The legal aspect of surrogacy comes when it is to

be decided if it is against public policy and if the consideration, i.e. money valid as under

Sec. 23 of the Indian Contract Act. The other party may claim rights stating that this is a valid

contract none the less. Procreative liberty and right to reproduction have been recognized as a

part of right to life33

specifically under Article 21 of the Constitution.34

But, as far as legality

of surrogacy is involved, it is worthwhile to mention Article 16(1) of the Universal

Declaration of Human Rights 1948 says, that “men and women of full age without any

limitation due to race, nationality or religion have the right to marry and start a family”.

The Indian judiciary has recognized the right of reproduction in a case:

30 Sec 14, The Indian Contract Act, 1872

31 Section 23, The Indian Contract Act, 1872

32 Ibid 33

33 Skinner v. Oklahoma,316 U.S. 535 (1942).

34 S.Amudha v. Chairman, Neyveli Lignite Corporation, (1991) 1 MLJ 137 (Mad.). ( MLJ is Madras Law

Journal); B.K. Parathasarthi v. Government of A.P., 2000(1) ALD199.

15 | P a g e

B. K. Parthasarthi v. Government of Andhra Pradesh35

: The Andhra Pradesh High

Court in the present case upheld “the right of reproductive autonomy” of an

individual as a facet of his “right to privacy”.

In another U.S. case:

Jack T. Skinner v. State of Oklahoma 36

: The US Supreme Court characterized the

right to reproduce as “one of the basic civil rights of man”.

Now if a reproductive right gets constitutional protection, surrogacy which allows infertile

couple to exercise that right, also gets a constitutional protection.

Surrogacy has different legal as well as moral connotations in different religions and varies

on the basis of how rigid or stringent a religion is. Hindu mythology offers an instance of

surrogacy in Bhagvata Purana where the embryo from Devaki‟s womb was transferred to

Yogmaya‟s womb who finally delivered the child.37

This instance dispels, to an extent, the

religious objections to the conception of non-commercial surrogacy arrangements. Infertility

is still considered to be a social stigma and thus maintaining the continuity of the clan or

family unit has always been important in Hindu Law. Hindu religion believes in the concept

of salvation which apparently is attained after a Hindu has his own natural son who

discharges his spiritual debts towards his ancestors and continuation of his family bloodline.

A surrogacy arrangement can be seen as a boon that offers a unique solution to the problem

of infertility in Hindu couples and allows them to have a child who is genetically theirs and

can relieve them of their religious debts. Thus, the need for a wholesome “legislation” to

regulate surrogacy is evident.

35 B. K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 A. P. 156. (AIR is All India Reporter and

A.P. is Andhra Pradesh High Court)

36 Supra note 35

37 VERONICA IONS, INDIAN MYTHOLOGY 58-59 (1883).

16 | P a g e

REGULATIONS FOR SURROGACY

THE DRAFT OF SURROGACY BILL38

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 Draft bill consists of 50 clauses under

nine chapters. The law commission has made following observation as regard surrogacy-

Surrogacy arrangement will continue to be governed by contract amongst parties,

which will contain all the terms including consent in writing. The agreement will be

treated at par with the Indian Contract Act, 1860 and other laws applicable to the

agreement. However, such an arrangement should not be made for commercial

purpose.

The Bill provides that a foreigner or foreign couple not resident in India or a non-

resident Indian individual or couple, seeking surrogacy in India, shall appoint a local

guardian who will be legally responsible for taking care of the surrogate during and

after pregnancy till the child is delivered to the foreigner or foreign couple or the local

guardian. It is further provided that the commissioning parents or parent shall be

legally bound to accept the custody of the child irrespective of any abnormality that

the child may have, and the refusal to do so shall constitute an offence. A surrogate

mother shall relinquish all parental rights over the child. The birth certificate in

respect of a baby born through surrogacy shall bear the name(s) of genetic

parents/parent of the baby.39

In the event of death of the legal parents, or divorce between them, the surrogacy

arrangement should provide for the financial support of the child.

38 ART Regulation draft bill 2010. Available from:

http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf .

39 A 228th Report of Government of India,” need for legislation to regulate assisted reproductive technology

clinics as well as rights and obligations of parties to a surrogacy” Para 2.3, pg 17.

17 | P a g e

Legislation itself should recognize a surrogate child to be the legitimate child of the

commissioning parents.

Right of privacy of the donor as well as surrogate mother should be protected.

Surrogacy that prefers sex- selective should be banned.

The age of the surrogate mother should be 21-35 years, and she should not have

delivered more than 5 times including her own children. Surrogate mother would not

be allowed to undergo embryo transfer more than 3 times for the same couple.

The burgeoning surrogacy industry in India is propelled by an absence of cohesive legislation

and the mushrooming IVF and Assisted Reproduction Technology (ART) clinics which

wantonly advertise services for providing “Wombs for Rent”. The unregulated reproductive

tourism market for procreating through surrogates is booming, with India being the first

country proposing to legalise commercial surrogacy. Whilst the new Assisted Reproductive

Technology (ART) (Regulation) Bill and Rules, 2010 are still not enacted, the non-statutory

Indian Council of Medical Research (ICMR) Guidelines, 2005, has provided some regulation

which has already had effect. 40

40 http://www.londonmet.ac.uk/media/london-metropolitan-university/london-met-documents/faculties/law-

governance-and-international-relations/cflp/2012-3-flp-2/AMalhotra.pdf

18 | P a g e

The Assisted Reproductive Technology Drafts Bill, 2010 which was presented by a group

of medical practitioners and Indian Council of Medical Research(ICMR), invited

appreciation as well as criticism and 228th

Law Commission Report laid down certain

observations including necessity for prohibition of sex-selective surrogacy, requirement of

Medical Termination of Pregnancy Act, 1971 to govern cases of abortions.

The focus of the draft bill tends to promote just the interest of commissioning parents which

should rather be shifted to the benefits of the surrogate mother as the bill is inadequate in

protecting and safeguarding the rights and health of women and children. According to

surrogacy service providers in India, the bill does not envisage the need to bestow more rights

or protection to the surrogate mother. As the country takes a step ahead and commercializes

surrogacy, there will be an amount on paper that the woman will receive as monetary

compensation. According to the guidelines formulated by the ICMR, there is no monetary

benefit for the surrogate. The surrogate only agrees to rent her womb. If the child is born

handicapped there is a probability that parents may back out from payment though it‟s not her

fault for those are not her genes. 41

The only law that covers surrogacy is the Assisted Reproductive Technology (Regulations)

Bill, 2010 according to which the name of the genetically parents will be provided on the

birth certificate of the child42

, also that a lady who donates the oocyte for the embryo cannot

be the surrogate mother. This law in itself can give rise to couple of controversies. In a case

where the sperm of the male of the commissioning couple and oocyte from another lady are

taken to form the gamete, the names of the male in couple and the lady will co-exist in the

birth certificate, there being no relation between them. 43

The legislation has several contradictions within the document itself when it comes to

shielding the anonymity of the surrogate. A number of measures have been inserted in the

document to ensure the anonymity of the surrogate and at the same time states that the

41 http://www.ncbi.nlm.nih.gov

42 Section 34 (10) of ART Bill 2010 which provides that the birth certificate issued in respect of a baby born

through surrogacy shall bear the name(s) of individual / individuals who commissioned the surrogacy, as

parents.

43 Supra note 43

19 | P a g e

surrogate mother should register under her own name for the purpose of medical treatment

and provide the name of the couple for whom she is acting as surrogate. If the legislation

makes it binding for the surrogate to disclose her identity, then it is ambiguous as to how her

privacy and anonymity will be maintained.44

The legislation has laid down a provision for

NRIs and foreigners to appoint a guardian who is legally responsible for taking care of the

surrogate during the gestation period till the child is delivered to the foreigner or foreigner

couple but again there is ambiguity regarding as to who can be the local guardian and the

guardian`s exact responsibility.

Even though the Bill has some flaws in it, but it has been framed in favour of surrogacy in

India, highlighting a proper way of operating surrogacy. But exploitation of surrogacy is also

one of the vital factors which the law has to address. Nevertheless, this is a very great step to

move forward taken by the Government of India. Assisted reproductive technologies (ART)

have enabled millions of people in the world to have biological children who otherwise

would not have been able to do so.

Section 2(d) of the ART Bill, 2010 which defines “couple” as “couple”, means the persons

living together and having a sexual relationship that is legal in the country / countries of

which they are citizens or they are living in. This section can be interpreted widely. The word

couple can be interpreted as couples in which one person is infertile,45

lesbian couples; gay

male couples; a couple in which one or both partners are transgender; single straight, queer

and Trans women and men. People are motivated to use ART to have a genetically related

child, and circumstances vary widely: women undergoing chemotherapy; women who want

to delay childbearing; and couples who want to use pre-implantation genetic diagnosis (PGD)

to screen against disability or for sex.46

44 Section 34 of Assisted Reproductive Technology, Clause (17): A surrogate mother shall be given a certificate

by the person or persons who have availed of her services, stating unambiguously that she has acted as a surrogate for them.

45 A medical definition of infertility is the inability to become pregnant after a year of unprotected intercourse

or the inability to carry a pregnancy to a live birth. Approximately 15% of women and 10-15% of men are infertile in the US.

46 Anonymous, “assisted reproductive technologies: overview and perspective using a reproductive justice

framework”

20 | P a g e

The level of risks attached to women by using ART depends on the technology used. Women

doing alternative insemination using donor sperm that has been screened for sexually

transmitted infections face virtually no risk from the procedure, beyond standard risks that

any pregnant woman would face. Women undergoing egg retrieval for IVF, on the other

hand, face short-term risks associated with taking hormones to stimulate multiple egg

production, and the long-term health risks are still unknown.

Risks from egg retrieval are very mild. Ovarian Hyper stimulation Syndrome (OHSS) is the

well-studied side effect of hormonally stimulated egg retrieval. According to a literature

review, the rate of severe OHSS is about 1% but “one should be aware of its recent,

progressive increase.”47

GUIDELINES FOR FOREIGEN PARENTS48

It may be noted that foreigners visiting India for commissioning surrogacy are required to

apply for Medical Visas with the following conditions49

:

The foreign man and woman are duly married and the marriage should have

sustained for at least two years.

A letter from the Embassy of the foreign country in India, or the Foreign Ministry

of the country, should be enclosed with the visa application stating clearly that:

a. the country recognizes surrogacy; and

47 Delvigne, A. & Rozenberg, S.. Epidemiology and prevention of ovarian hyper stimulation syndrome: A review.

Human Reproduction Update. 8(6), 559-577 (2002)

48 http://www.londonmet.ac.uk/media/london-metropolitan-university/london-met-documents/faculties/law-

governance-and-international-relations/cflp/2012-3-flp-2/AMalhotra.pdf

49 http://www.thehindu.com/sci-tech/health/ministries-consulted-on-assisted-reproductive-technology-

bill/article5380425.ece

21 | P a g e

b. the child/children to be born to the commissioning couple through the Indian surrogate

mother will be permitted entry into their country as a biological child/children of the couple

commissioning the surrogacy.

The couple will furnish an undertaking that they would take care of the

child/children born through surrogacy.

The treatment should be done only at one of the registered ART clinics recognized

by the Indian Council of Medical Research (ICMR).

The couple should produce a duly notarized agreement between the applicant couple

and the prospective Indian surrogate mother.

Before the grant of the visa, the couple needs to be informed that before leaving

India for their return journey, an „exit‟ permission from FRRO/FRO would be

required. Before granting the „exit‟ the FRRO/FRO will see whether the foreign

couple is carrying a certificate from the ART clinic concerned regarding the fact that

the child/children have been duly taken custody of by the foreigner and that the

liabilities towards the Indian surrogate mother have been fully discharged as per the

agreement.

Further it may be noted, for drawing up and executing the agreement cited above at

(5), the foreign couple can be permitted to visit India on a reconnaissance trip on

Tourist Visa, but no samples may be given to any clinic during such preliminary

visit.

If the listed conditions are not fulfilled, the visa application shall be rejected.

22 | P a g e

SURROGACY AND COURT: CASE STUDIES

BABY MANJI YAMADA v. UNION OF INDIA

The Supreme Court of India, through the Manji Yamada Case 50

, held that commercial

surrogacy was legal in India. So far this case is concerned, it involved Baby Manji, who was

born on 25-7-2008, under a surrogacy agreement executed between Japanese

biological/genetic parents (father, I and mother, Y) and an Indian surrogate mother. She

became focus of legal as well as diplomatic crisis soon after her birth. Her genetic parents

(the intended parents) had divorced months before her birth. The genetic mother was refusing

the child, while the father and grandmother did want to raise the child. In this case, it was

held that if the petitioner has any grievance in relation to the order to be passed by the

Central Government, such remedy, as is available in law may be invalid. It is also to be noted

that the Commissions for Protection of Child Rights Act, 2005 has been enacted for the

constitution of a National Commission and the State Commission for protection of child

rights and children’s courts for providing speedy trial of offences against children or of

violation of child rights and for matters connected therewith and incidental thereto. In the

present case, if any action is to be taken that has to be taken by the Commission. Section 13

which appears in Chapter III of the Act is of considerable importance.

JAN BALAZ v. ANAND MUNICIPALITY

The commissioning parents in this case are of German nationality that entered into a

surrogacy contract with an Indian surrogate mother. The petitioner is the biological father but

his wife is not in a position to conceive a child. After the twin babies were born to the

surrogate mother the dispute which built up was regarding the citizenship of the babies and as

to whose name would be mentioned in their birth certificates.

50

Baby Manji Yamada vs. Union of India and Another. (2008) 13 SCC 518.

23 | P a g e

The major issue in this case is the denial of Indian citizenship to the babies though their birth

mother is an Indian. Moreover, Germany did not recognize surrogacy, and therefore for the

purpose of obtaining VISA from the Consulate of U.K., it was essential that the children

should have the passport as they were born in India and not in Germany. The Passport

Authorities did not issue them the passports as per the need of petitioner who wanted to take

the babies to Germany where he would submit applications in order to change the nationality

of the babies to German. He contended that denial of passports was violative of Article 2151

of Indian Constitution. The birth certificate mentioned the name of surrogate mother which is

in contravention to the guidelines of ICMR, according to which the birth certificate should

have the names of the commissioning parents of surrogacy.

As per section 3 of the Citizenship Act 195552

, both the babies are Indian citizen as they are

born in India. So it is humbly submitted that they are entitled to enjoy all the rights of Indian

citizen and the Passport Authority are hereby legally authorized to issue the passports to them

failing to which may be regarded as violation of Article 21 of the Constitution.

Since surrogacy is not prohibited in India, the twins were born in India to a surrogate mother

who herself is an Indian national and according to section 3 (1) (c) (ii) of Citizenship Act,

1955 a child is a citizen of India if one of whose parents is citizen of India.

Also as per Birth and Death Registration Act 1969, one who conceives the child is regarded

as legal mother or natural mother. The name of the surrogate mother was mentioned in the

birth certificate by the Registrar under Birth and Death Registration Act 1969.

51

Article 21 in The Constitution Of India 1949:

Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except

according to procedure established by law.

52 Section 3 in The Citizenship Act, 1955

3. Citizenship by birth. 1[ Except as provided in sub- section (2), every person born in India,-

(a) on or after the 26th day of January, 1950 , but before the commencement of the Citizenship (Amendment)

Act, 1986 (51 of 1986 );

(b) on or after such commencement and either of whose parents is a citizen of India at the time of his birth, shall

be a citizen of India by birth.]

(2) A person shall not be such a citizen by virtue of this section if at the time of his birth-

(a) his father possesses such immunity from suits and legal process as is accorded to an envoy of a foreign

sovereign power accredited to the President of India and is not a citizen of India; or

(b) his father is an enemy alien and the birth occurs in a place then under occupation by the enemy.

24 | P a g e

One may argue that this may go against the ART Bill, 2010 according to which the birth

certificate should possess the names of the commissioning parents. But, it is submitted that

this Bill has not been legalised in India till now and thus it is not binding. Moreover,

according to Black‟s Legal Dictionary53

the word “born” is an act of being delivered or

expelled from mother‟s body whether or not placenta has been separated or cord cut. In the

present case, the children were “born” from the body of surrogate mother. Hence, she should

be the legal mother of the child.

CONCLUSION

At the end of this discussion, it can be said that the right to reproduce is a fundamental and an

inborn human right. Surrogacy is the only way to conquer both biological and social

infertility. It provides medically infertile couples as well as socially infertile individuals who

are unwilling to get married with a chance to have a child of their own. Blocking every way

for minority members to obtain the treatment they desire would be perilous because it could

increase feelings of frustration, suppression, and indignation. Actually, legalization of

gestational surrogacy aims to protect the surrogate‟s interests as well as those of the intended

parents and the baby born after the surrogacy.

In this context, for progress of commercial surrogacy to defend the surrogate‟s interests as

well as those of the intended parents, as a law student following are my suggestions:

Successful handling of surrogacy for with international parents requires special

attention to addressing every country‟s needs and legal circumstances and

partnering with local organizations and lawyers to provide a complete solution for

prospective parents before and after the birth.

International parents should make sure to find an agency with such understanding of

the laws to help determine which legal strategy would work best to ensure that they

can return and gain full legal rights for both parents and newborns back home

53 Black‟s Legal Dictionary, 16th edition.

25 | P a g e

In India, there is a need to pass a new legislation by which commercial surrogacy

related matters will be governed. Moreover, sufficient steps are necessary to take so

that people can at least understand the positive sign (i.e. it is helpful for maintaining

familiar peace) of legalization of commercial surrogacy and try to change their

conservative approach.

Before the Parliament passes the Assisted Reproductive Technology (Regulation)

Bill, 2010 the answers to these questions are to be found – i) Ethically, should women

be paid for being surrogates? ii) Can the rights of women and children be bartered?

iii) If the arrangements fall foul, will it amount to adultery?

The law should provide for the right to termination of pregnancy for the surrogate

mother in case of any mental or physical trauma that she may experience during the

pregnancy.

The minimum time up to which the surrogate mother should be allowed to nurse the

child should be laid down as without such a provision the child‟s health may suffer.

Actually, the concept of commercial surrogacy is quite new in all the third world countries

including India and that is why still it is a long way to go to externally manifest the

legalization.