CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA

NAGAR, MITHAPUR, PATNA

MAY 2021

HEALTH LAW
(Final Draft Submitted In Partial Fulfillment Of The Course
HEALTH LAW, SEMESTER X DURING THE ACADEMIC YEAR
2020-21)

TOPIC: SURROGACY & WOMEN’S RIGHT TO HEALTH IN

INDIA:CHALLENGES LEGAL
IMPLICATIONS & NEED FOR
CHANGE

Submitted to:- Dr.VIJAY KUMAR VIMAL

Submitted by:- Shambhavi, Roll Number-1644 B.B.A.LL.B(hons)

1
 TABLE OF CONTENT
Declaration

Acknowledgment

List of Abbreviations

Abstract

Research Methodology

Chapter 1: Meaning & Concept Of Surrogacy................................................................................................................9

-Definitions & Terminologies

Chapter-2: Need For Introducing Laws On Surrogacy.................................................................................................. 12

-Surrogacy & Human rights

-Right Over One’s Own Body

Chapter-3: Legal Framework Of Surrogacy laws In India............................................................................................. 15

-Background

- History Behind Surrogacy India

- Various legislations passed in India in context to Surrogacy

-Biils, Reports ,provisions

- Constitutional Aspects

Chapter-4: Situational Analysis Of The Present situation:Social Legal & Ethical aspects...........................................29

- SOCIO-PSYCHOLOGICAL ISSUES

-Legal Issues

- Health Issues

- Religious Issues

Chapter-5: Analysis Of Health Related aspects Of Surrogacy.................................................................................33

-Health Risks associated With Surrogacy

-Surrogacy & Women’s Right To Health

- Public Health & Relevance Of surrogacy

Chapter-6: A Comparative Study Of The Legislations Across The Globe................................................................. ..36

Chapter-7:Conclusion & Suggestions.....................................................................................................................38

Bibliography

2
 DECLARATION

Exercising numerous research methods to breed my notions, conveyed in this research, the
researcher has accomplished the aforementioned work. …

All the concepts executed in this research report are to investigate the “title of my research” a
newfangled way, so as to fetch out the fundamental basis to my propositioned
hypotheses/suggestions/recommendations, I sense are obligatory to explore the subject with
contemporary arrangements.
Since the research is a doctrinal one, and therefore many literatures related to my research
title are reassessed systematically from numerous sources, but each of them are duly
accredited by the way of footnotes or bibliography.
I hereby declare that the work reported in the B.B.A.LL.B (Hons.) Project Report title “:
SURROGACY & WOMEN’S RIGHT TO HEALTH IN INDIA:CHALLENGES LEGAL
IMPLICATIONS & NEED FOR CHANGE ” submitted at Chanakya National Law
University, Patna is an authentic record of my work carried under the supervision of Dr.
Vijay Kumar Vimal . I have not submitted this work elsewhere for any other degree or
diploma. I am fully responsible for the contents of our project report.

I, taking a true oath pronounce that no bootlegging has been engendered in any portion of my
full research report.

Shambhavi,
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
April,2021

3
 ACKNOWLEDGMENT

I take this opportunity to express our humble gratitude and personal regards to
faculty of for inspiring us and guiding us during the course of this project work and
also for his cooperation and guidance from time to time during the course of this
project work o n the topic

The Present Project Report is attempted to explain for the benefit of the general
readers. Dealing with this topic in a material form has naturally involved a great
deal of compression and omission of many matters of interest. I hope that my
selection of material will give a fair outline of the general picture.

“I EXPRESS OUR GRATITUDE TO THE FACULTY OF HEALTH LAWFOR THE CONCEPTS GIVEN
BY THEM IN THE SUBJECT WHICH HAS BEEN THE BASE FOR THIS SMALL PIECE OF WORK.”

4
 LIST OF ABBREVIATIONS

Abbreviations Full Forms

& And
v. Verses
ART Assisted Reproductive Technology
DNA Deoxyribo Nucleic Acid
ICSI Intra Cytoplasmic Sperm Injection
INA Immigration and Nationality Act
IUI Intra Uterine Insemination
IVF In Vitro Fertilisation
SCC Supreme Court Cases
UK United Kingdom
UOI Union of India
USA Unites States of America

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ABSTRACT

Surrogacy is a method of assisted reproduction whereby a woman agrees to become pregnant

for the purpose of gestating and giving birth to a child for others to raise. In some jurisdictions the
possibility of surrogacy has been allowed and the intended parents may be recognized as the
legal parents from birth.

Commercial surrogacy is a controversial method of conception because people, governments

and religious groups have questioned the ethics of involving money in a child's birth.

There are a lot of issues involved with this whole process such as the rigidity of Indian Laws in
adopting a woman friendly legislation that is present in so many developed countries. The
woman & the couple who cannot become parents due to some reasons that is tragic enough but
cannot take advantage of this scientific process.So this particular void in laws violates the basic
right to freedom of civilians.

Secondly the health of three communities is involved in this process which is compromised in the
present situation & which is not taken care of i.e the woman who cannot conceive , the woman
who agrees to become the surrogate mother & lastly the child born out of such process which is
dragged in the legal battles.

This research paper deals with each & every aspect along with the government regulation, the
plight of the women involved , the various health policies & insurance claims, the constitutional
structure, the comaparative study of the legislations & provisions across the globe & lastly
presenting ideas to ease the situation.

AIMS & OBJECTIVE

i) To have an in depth knowledge of the Surrogacy Laws in India.

ii) To Analyze the present legislations with the current needs.
iii) To Highlight this medical condition & a biological happening in context with the
health laws in India
iv) To propose the new ideas ,suggestions with respect to the present challenges

RESEARCH QUESTIONS
i) What is surrogacy & how it benefits the individuals?
ii) What is the need of debate & effective measures to be introduced in this subject?

6
 iii) How the health or women & children is affected?
iv) What are the present laws & what are the loopholes in those laws?
v) What is the approach of world in dealing with this law?
vi) Whether surrogacy is enshrined within the rights guaranteed by the constitution?

RESEARCH METHODOLOGY

The researcher has used the doctrinal method and has relied on the primary as well as
secondary sources for the content of the research paper. Owing to the large number of topics
that could be included in the project, the scope of this research paper is exceedingly vast. The
researcher lacks monetary and other resources. The researcher has confined to library of
CNLU and internet sources.

SCOPE & LIMITATION

The researcher has used the doctrinal method and has relied on the primary as well as
secondary sources for the content of the research paper. Owing to the large number of topics
that could be included in the project, the scope of this research paper is exceedingly vast. The
researcher lacks monetary and other resources. The researcher has confined to library of
CNLU and internet sources.

SOURCES OF DATA

 Primary sources- Acts, statutes, precedent & other official documents.

 Secondary sources- statement of judges, websites, articles, news paper, books,
journals etc.

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 STATEMENT OF PROBLEM

This research is trying to analyse the various aspects of law on Surrogacy in different
countries and India, whether it is bliss or a curse in Indian legal context; who are the persons
who can access it; who are the persons to whom it can be done; what should be the
punishments awarded if there is any violation of right/s of the person. There are several views
of various people regarding the topic which includes legal scholars and legal researchers.

HYPOTHESIS

“THERE IS LACK OF LEGISLATIONS,LAWS & REGULATIONS IN CONTEXT OF

SURROGACY IN INDIA”.

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 CHAPTER- 1

INTRODUCTION:MEANING & CONCEPT OF SURROGACY

Surrogacy is an arrangement whereby a woman (the surrogate) bears a child on behalf of

someone else (woman, man or couple) who wants to become a parent. Surrogacy is called
“traditional” when the surrogate is also the egg donor: the embryo grows from gametes of the
father (or a sperm donor) and the surrogate. Fertilization is by artificial insemination.

Surrogacy can be defined when other women carries the child and give birth to him when the
couples want a child who are not blessed to produce him themselves. Surrogacy is also
appropriate for the person who has an impossible condition or there is a very much danger
situation for mother to get pregnant1 . There are various types of surrogacy:-

Natural/Traditional/Partial Surrogacy- In this type of surrogacy, there is genetic relation

of embryo with surrogate and it is done with her own ovum. Commissioning father can
donate the sperm and becomes the genetic father of the child. In this the sperm can also be
taken from some third male person in the case of two female commissioning couples or the
single women also, can commission the child. The women can get pregnant through the ways
like sexual intercourse, intrauterine insemination (IUI) or In Vitro Fertilisation (IVF)2 . ·

Gestational/Full Surrogacy In this type, surrogate acts as a carrier of embryo which is

genetically not related to her. The pregnancy is obtained by the IVF and implantation of
fertilised embryo is done in the surrogate’s uterus.In this the embryo if fertilized by the
commissioning parents or by some other anonymous persons .

Commercial Surrogacy -In this type of surrogacy, the surrogate enjoys compensation in
monetary terms for her womb ·given on rent 3. Earlier this was legal in India but now its no
more legal.

1
Human Fertilisation Embryology Authority. (2014). Surrogacy., What is surrogacy?., Is surrogacy for me?.
Retrieved on April 1, 20121 at 21:46 from http://www.hfea.gov.uk/fertility-treatment-optionssurrogacy.html#1
2
Nigam, A. (2013). Surrogacy: An Indian Perspective. Retrieved on March 25, 2021 at 13:36 from
http://www.tcog.in/articles/1/1/surrogacy-an-indian-perspective.html
3
Ibid

9
Altruistic Surrogacy- In Altruistic Surrogacy, no financial benefits are given to surrogate.
There are only medical expenses given in monetary terms as compensation by commissioning
parents .

Commercial surrogacy is considered to be the best because in this type the commissioning
parents are getting the benefits of having their child and surrogate gets the compensation for
what she has sacrificed for the child. It can be best done in urban areas because of the good
medical treatments provided rather in the rural areas.

Definitions & Terminologies

The word ‘surrogate’ has its origin from a Latin word ‘surrogatus’, meaning a substitute, that
is, a person appointed to act in the place of another. Surrogacy is a practice whereby a woman
agrees to become pregnant and bear a child for another person or persons, to whom she
intends to transfer the child’s care at, or shortly after, birth. If the pregnant woman received
compensation for carrying and delivering the child (besides medical and other reasonable
expenses) the arrangement is called a commercial surrogacy, otherwise the arrangement is
sometimes referred to as an altruistic surrogacy.4

Black’s law dictionary defines surrogacy as carrying & handling over the child to other
person after the child is born. It classifies it in two categories: Gestational and Traditional
Surrogacy. In Gestational one woman provides fertilized egg and other woman gives birth to
the child. In Traditional only one woman provides the egg and gives the birth to child i.e. the
surrogate mother.

In many countries it is prohibited and considered as a crime. Crime is violation of the public
law by an act or an omission. It is a breach of duty to the public at large. 5

At present, there are many beliefs regarding the topic surrogacy that it should receive the
legal status or it should be banned. Many countries have legalized it and many till date
prohibit it. Although, it is prohibited in the countries but people practices it for the benefit of
the persons, who are not capable of producing a child regardless of the laws of the country, as

4
Prakash, S. (2010). Surrogacy a problem both socially and legally. Assited Reproductive Technology and
Surrogacy. Retrieved on March 25, 2021
5
Mishra, A. (2014). Whether Euthanasia should be included as a part of Article 21 (Right to Life) of
constitution of India-An analysis. Unpublished Online off Campus Random Research Program. Prof. Ranbir
Singh Legal Research Centre , Shajapur (India).PP 4-5. Retrieved on April 27, 2021 at 16:31

10
a gift or service. Majorly, this can be seen within the families of the persons where anyone is
not capable of producing the child. But, if it gets traced there are provisions of strict
punishments.

11
 CHAPTER-2
NEED FOR INTRODUCING LAWS ON SURROGACY

The indications of the surrogacy can be determined when it makes the women incapable for
being pregnant and give birth to a child. The majorly are like repeated abortions, failure of
the In vitro fertilisation and various other medical complexions which make a women
incompatible to give birth. It has been also tried on the women who has congenital absence &
the women who doesn’t have a womb or the womb has been removed. The single parent or
same sex couples can also take the assistance of surrogacy to have their babies .

However the world & Indian legislation has a limited scope with respect to this & does
not cover the needy individuals who are physically handicapped, who genuinely want to
have children after the end of their reproductive phase, who cannot bear the burden of
pregnancy due to some congenital disease in any part of the body, the single parent or
the single individuals & those who lost their children due to unfortunate accidents at the
end of their fertility.

The government & the framers have left a lot of loopholes & does not understand the
human right aspect connected with this subject.

In the recent Bill introduced India regarding commercial surrogacy , “infertility" is a

condition that has to be medically proven by a couple to be eligible to commission a
surrogacy. The Bill defines infertility as the inability to conceive after five years of
unprotected sex or medical conditions preventing a couple from conception. This definition
does not cover all cases in which a couple is unable to bear a child, such as weak uterus,
multiple miscarriages, fibroids, hypertension and diabetes. Such medical conditions
which are becoming very common with changing lifestyles will not qualify a couple for
altruistic surrogacy.

Those couples who genuinely need surrogacy due to either congenital malformation of
uterus, damaged or surgically removed uterus will be at a big loss. Clinicians will not be
able to help them despite possessing the skills and technology.

12
So considering the need to address these issues, the loopholes should be put forward &
genuine surrogacy laws which could benefit public at large should be introduced after
rectification.

Surrogacy and Human Rights

There are many views of different people regarding the human rights in context to the
surrogacy. Many people treat it in a positive way and many in the negative way and consider
it as a violation of the human rights. The reproductive rights are recent in the international
laws. The very first document was approved regarding this matter in Teheran Conference on
Human Rights, 1968. In this conference, it was decided that the person is free to access all
these rights by his own thinking and he will be only responsible for all the consequences. 6

There was another conference held which was at Cairo in which it was decided that it should
not be done by coercion and the government will keep all the information about these
regardless of the target fixed by it. The only aim should be that it should only support the
couples to have the full opportunities to have the children by their choices through any of the
means.7

The reproductive rights included all the rights of the individuals to have their freedom of the
choices, to decide freely about the place, timing to have the children and to attain all the
medical benefits and rights.8

Reproductive rights are being recognized at the international level which has the objectives to
educate the people regarding this matter and explaining them right to health. It only focuses
and considers the maternity as a social function. The only difficulty which lies to them in
commercial surrogacy is where both the intending parents and surrogate are stranger to each
other.

6
Stark,B. (2012). Transnational Surrogacy and International Human Rights Law. ILSA Journal of International
& Comaparitive Law. Volume 18:2
7
ibid
8
European Centre for Law and Justice. (2012). Surrogate Motherhood: A Violation of Human Rights. Retrieved
on April 7, 2021 at 15:40 from http://www.ieb-eib.org/en/pdf/surrogacy-motherhood-icj

13
Some people have the negative views about it like the surrogacy violates the human rights of
the individual. There is exploitation of both child and surrogate mother. The peoples misuse
this by selling the babies and making the profits for themselves. The other type of
exploitation is the forced surrogacy or surrogacies which are done under the coercion. The
surrogate mothers are used for producing babies and after that they are forgotten. People also
want the good looking child with high academic potential, if, these are not fulfilled then, the
children are left by the commissioning parents. By this, there are violations of rights of the
child. These are the major factors which exploits the humans. So, many people oppose
surrogacy for these reasons only.

Right Over One’s Own Body

Reproductive rights, which entail rights to make sexual and reproductive decisions, as
recognised by the 1994 United Nations International Conference on Population and
Development (UNPIN 1994). These rights have been elaborated to include access to
contraception, the right to a legal and safe abortion, the right to make decisions concerning
reproduction free of discrimination, coercion and violence, the right to not be subject to
harmful practices such as the coerced bearing of children (including with their spouse); and
equal entitlement of LGBTQ persons to the same sexual and reproductive health services as
all other groups (UNFPA, OHCHR, and DIHR 2014).

In India ,the Puttaswamy judgment 9 specifically recognised the constitutional right of women
to make reproductive choices, as a part of personal liberty under Article 21 of the Indian
Constitution.

Therefore, in the light of the abovementioned issues the need to introduce,implement &
interospect surrogacy laws has become a matter of concern.

9
Justice K S Puttaswamy v Union of India 2012a: para 72, 2012b: para 46, 2012c: para 38

14
 CHAPTER -3
LEGAL FRAMEWORK OF SURROGACY LAWS IN INDIA

Surrogacy is a complex issue which poses multiple legal and ethical questions, including
definitions of parenthood and custody of children. For instance, commercial surrogacy has
been criticized within a particular stream of feminist discourse for commodifying the
reproductive capacities of women.

Scholars have highlighted race and class considerations, since women living in abject poverty
and women of colour are more vulnerable to exploitation through surrogacy.

Based on the recommendations of the Law Commission of India, the Union Cabinet approved
the Surrogacy (Regulation) Bill in 2016 (hereafter referred to as surrogacy bill or bill) (Law
Commission of India 2009). The bill attracted heavy criticism from the outset, which has
renewed in the wake of the judgment.

Background

The history of the surrogacy dates back to the centuries. This concept of bearing of the child
for the other woman takes us back to the Old Testament, Hagar the maid of the Sarah bears
the child for her infertile mistress with the help of Sarah’s husband. The agreement for the
surrogacy was not arranged till 1976 in United States. Till then it was marketed as the
infertility solutions. Many firms sprung like mushrooms to promote the surrogacy and started
caring the surrogate mothers to make the money. 10

1986, which is known to be the landmark year for the surrogacy and the surrogates mother
because of ‘Baby M’ case. There happened a contract between parties.

In 1989, the American Bar Association penned the laws. These laws were the guideline
provided to the states for surrogacy. Within few years nineteen states opposed the surrogacy
to prevent the benefit of the third party by making money from it. The United States allows
the surrogacy with some of the states banning it. The Districts of Columbia and Eleven States
prohibited it completely and the six states allowed the couples to enter into the surrogacy
agreements, in which, some of them only issued uncompensated agreements. All the states
10
New World Encyclopedia. (2009). Surrogacy. History. Retrieved on April 7, 2021 at 01:44 from
http://www.newworldencyclopedia.org/entry/Surrogacy#His

15
recognized the birth certificates of the births by surrogacy. Many criticized that surrogacy
will be used only for the business purposes and the firms will make a good amount from it.

In India, history was created by allowing the commercial surrogacy in the year 2002.
Surrogacy can be also traced back to the epics like Mahabharata, where Rohini bared
the child for Devaki and Vasudev.

History behind Surrogacy In India

India. In 2002, commercial surrogacy or informally 'Rent a Womb' practice, was legalised in
It was done to promote medical tourism in India and after this decision, India became "the
hub of surrogacy". The main reason being the low cost in India that is in the U.S it cost
approx $100,000 and also the absence of strict legislation.

The unregulated business of surrogacy raised concerns like unethical practices, due to it the
middlemen and commercial agencies profited most, exploitation of surrogate mothers,
abandonment of children born out of surrogacy, rackets like organ trade, embryo import, etc.
That is why legislation to regulate surrogacy in the country came in to force.

Various legislations passed in India in context to Surrogacy

ICMR guidelines, 2006

The Indian Council of Medical Research (ICMR) published guidelines for accreditation,
supervision and regulation of ART clinics in India. The guideline has rolled out points to
uphold the rights of a surrogate mother. However, did not restrict commercial surrogacy and
Foreign Nationals availing these services. Penalties and offences also not mentioned .

Assisted Reproductive Technology (Regulation) Bill, 200811

Elaborates the physical infrastructure and manpower requirement for an infertility clinic ART
procedures in patient selection, surrogate mother and donor. The confidentiality of records
should be maintained. Rights and duties of donors, surrogate mother and child were outlined.

Draft Assisted Reproductive Technology (Regulation) Bill, 2014

11
The Assisted Reproductive Technology (Regulation) Bill,2014. Government of India, Ministry of Health and
Family Welfare. Press Information Bureau. [Internet]. [Cited 2021 May 08]. Available from:
https://www.prsindia.org/uploads/media/ draft/Draft%20Assisted%20Reproductive%20
Technology%20(Regulation)%20Bill,%202014. pdf

16
Expatiated about the setting of national and state boards to regulate and monitor the ART
clinic; along with banning foreign nationals from obtaining surrogacy services. Highlighting
the issues related to complications, disabilities, and death of the surrogate and abandoning of
children.

Important Report

In 228th report of Law Commission of India, many important points are recommended
which are stated as follows:-

· Surrogacy should be done with a contract which should contain all the requirements like
consent of the surrogate mother and of her family members that she can bear the child, the
expenses for her in monetary as well as in the medical terms and the child should be finally
hand over to the commissioning parents. The agreement which is done should not be for the
commercial purposes.

· There should be the financial arrangements for the child who had been born by surrogacy if
there occurs the death of the commissioning parents or any individual who was bearing the
child or the divorce between the couples or nobody is willing to take the child.

· Contract for surrogacy should cover the life insurance of the surrogate mother.

· One of the commissioning parents should also be a donor because there will be a genetic
relation between parents and child, which will be fruitful, which will further reduce the child
abuse observed in many cases.

· Surrogate child should be a legal child of the commissioning parents without declaration of
guardians or by adoption of him. This type of provisions should be recognized by our
Legislative.

· The name of the commissioning parents should be imprinted on the birth certificate of the
surrogate child.

· There should be not being any violation of Right to Privacy of the donor as well as of the
surrogate mother.

· There should be prohibition of sex selective surrogacy.

View of LCI

17
228th LCI report recommended prohibiting commercial surrogacy and allowing ethical
altruistic surrogacy to the needy Indian citizens by an apt legislation

 In 2005, the Indian Council of Medical Research (ICMR) issued guidelines to regulate
surrogacy arrangements. The guidelines stated that the surrogate mother would be entitled to
monetary compensation, the value of which would be decided by the couple and the surrogate
mother. The guidelines also specified that the surrogate mother cannot donate her own egg for
the surrogacy and that she must relinquish all parental rights related to the surrogate child.

Provisions of the Surrogacy (Regulation) Bill, 2016 approved by Union Cabinet:

1. The Bill will regulate surrogacy in India establishing a National Surrogacy Board at
the Central level and State Surrogacy Board and appropriate authorities in the state and Union
Territories. The legislation will ensure effective regulation if surrogacy, prohibit commercial
surrogacy and allow for altruistic surrogacy to the needy infertile couples

2. The Bill bars foreigners, homosexual couples, people in live in relationships and
single individuals from becoming surrogate parents. Only childless, straight Indian couples
married for a period of 5 years, having proven fertility problems are eligible for surrogacy.
NRIs and PIOs who hold Overseas Citizens of India (OCI) cards have also been barred from
opting for surrogacy

3. Eligible couples will have to turn to “close relatives”, not necessarily related by blood
for altruistic surrogacy – no exchange of money between the commissioning couple and the
surrogate mother. The Bill, which borrows heavily from UK’s altruistic surrogacy Bill, has
changed the British provision of allowing only blood relatives to “close relatives”, a term that
will be further elaborated in the rules

4. The rights of surrogate mother and children born out of surrogacy will be protected

5. Bill will apply to whole of India except Jammu and Kashmir

6. Women acting as surrogates can do so only once

7. All Assisted Reproductive Technology clinics will have to be registered

18
8. 10 months during which pregnancies underway now can be seen through and babies
delivered

Important Points of Regulation Bill 2016

The bill is applicable to all the states of India except Jammu and Kashmir. The bill provides
the constitution of National Surrogacy board and State Surrogacy board for regulation of
surrogacy process.

-The bill is providing surrogacy to only Indian citizens. Foreigners, NRI, PIOs are not
allowed.

- Homosexuals and Single parents are also not allowed for surrogacy and bars the couple who
already have children.

- The bill provides that women can only surrogate once in her lifetime and her age should be
in between 25 to 35 years....

- The couple who intend for surrogacy should be aged between 23 to 50 years and married for
at least 5 years.

- The bill also provides provision for the custody of the child to be born which The bill
contains the provision of penalty and imprisonment if the person violated the law.

National Surrogacy Board

The board consists of:

Chairperson i.e “ Minister in-charge of Ministry of Health and Family Welfare Vice
Chairperson - Secretary to the government of India in-charge of Department dealing with
surrogacy matters.

Members i.e“ Three women members of Parliament, Three members of Ministries of Central
government from Women and Child Development, Legislative Department in Ministry of
Law and Justice and Ministry of Home Affairs not below the rank of Joint Secretary.

Director-General of Health Services of Central Government.

19
National and State Surrogacy Boards
The central and state governments shall constitute the National Surrogacy Board (NSB) and
the State Surrogacy Boards (SSBs), respectively. Functions of the NSB include:
(i) advising the central government on surrogacy policy
(ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning
of SSBs.

Functions of the SSBs include:

(i) monitoring the implementation of the provisions of the Act
(ii) reviewing the activities of the appropriate authorities functioning at the state/union
territory level.

Authorisation for termination of pregnancy

Approval for termination of pregnancy from the appropriate authority
Under the Bill, authorisation of the appropriate authority is mandatory for an abortion to be
done during the period of surrogacy. The authorisation also has to comply with the provisions
of the Medical Termination of Pregnancy (MTP) Act, 1971, which specifies the grounds for
termination of pregnancy. However, the Bill does not specify the time period by which such
authorisation for abortion has to be given.

Analysis of Case Laws

Baby Manji Yamada vs. Union of India (UOI) and Another12(2008)
Facts:- The petition was filed under Article 32 of the Indian Constitution. This was regarding
the custody of child named Manji Yamada. The petition was filed by the grandmother of the
child Emiko Yamada. Union of India through Home Ministry, State of Rajasthan through the
Principle Secretary, Director General of Police, Government of Rajasthan and the
Superintendent if Police, Jaipur were made the opposite parties. This case is very relevant
because it brought the light on the issues of surrogacy for the first time and there were no
laws regarding this matter. Thus, it can be said that this case directed for the formation of
Assisted Reproductive Technologies Bill, 2010. This case is also important because it was
decided on the facts which were presumed that the surrogacy is legal in Indian context. At

12
Baby Manji Yamada vs. Union of India & Another. (2008). (2008) 13 SCC 518. Mukherjee,S. (2011).

20
that time, there were the guidelines of the presumption of the legality of surrogacy of the
Indian Council of Medical Research, 2006 which found no place in judgement of the
Supreme Court in the above mentioned case .

Baby Manji was born on 25th July, 2008 where the commissioning parents were from the
Japan. The egg was donated by the mother, Dr. Ikufumi Yamada and was fertilised by the
sperm of her father Dr. Yuki Yamada. After this there was implantation of egg in the Indian
surrogate mother. The biological parents soon developed some marital problems and got
separated. The mother returned to Japan. After some time the father also returned because of
the expiration of the visa. Baby was under the care of her paternal grandmother. She was
issued a birth certificate in the name of her biological father. According to the existing laws
it.should had been certified to the mother to adopt the baby. Because of the Gujarat riots baby
was shifted to Rajasthan for the treatment of infection. The petition was filed in Rajasthan
High Court which stated the illegality of the surrogacy and stressed on the need of the law on
it. This was challenged by the grandmother for the sake of the baby.

Judgement:- The Supreme Court held that there was no ground of filing petition in High
Court as there was no interest of Public Interest Litigation was found. The court set aside the
judgement of High Court. The order was made to issue the passport for the baby and visa for
the extension of grandmother 13 . The Supreme Court judgement also included in its Para c d e
f d g g Commercial surrogacy" is a form of surrogacy in which a gestational carrier is paid to
carry a child to maturity in her womb and is usually resorted to by well off infertile couples
who can afford the cost involved or people who save and borrow in order to complete their
dream of being parents. This medical procedure is legal in several countries including in
India where due to excellent medical infrastructure, high international demand and ready
availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is
sometimes referred to by the emotionally charged and potentially offensive terms "wombs for
rent", "outsourced pregnancies" or "baby farms". Later, Baby Manji was issued an
Identification Certificate instead of passport to move out of the Indian Territory.

Substantial Question of Law:- The substantial question of law is that, whether surrogacy
should be treated as legal in the country India though there are no laws made on it. In this
case, the decision went against the Baby Manji but it was appealed in the Hon’ble Supreme
Court Of India.

13
ibid

21
Analysis:- These facts were also highlighted in Jan Balaz v. Anan Municipality and Others 14,
where there were questions about the nationality of the twins which were genetically related
to the father, Jan Balaz. Presently the case is pending in the apex court . The most noticeable
facts in Baby Manji case are that the court not only presumed the surrogacy as legal but also
that it was a pro-contract. The contract between the couples and the commissioning parents
was held to be valid though it was against the legislation of the country.

Surrogacy (Regulation) Bill, 2019

Context
-Recently Surrogacy (Regulation) Bill was passed in Lok Sabha.

-There are ethical concerns surrounding this issue that has been rekindled due to the passage
of the bill.

-The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family
Welfare in Lok Sabha on July 15, 2019. It was passed in Lok Sabha on August 5, 2019.

Features

 It provides for constitution of surrogacy boards at the national as well as state levels
to ensure effective regulation.

 It seeks to allow ethical altruistic surrogacy to the intending infertile Indian married
couple between the age of 23-50 years for female and 26-55 years for male.

 Only Indian couples who have been legally married for at least 5 years would be
allowed to opt for surrogacy.

 It makes it mandatory for the couple to obtain a certificate of essentiality and also a
certificate of eligibility before going ahead with surrogacy. It also provides that
intending couples should not abandon the child born out of surrogacy under any
condition.

14
Jan Balaz v. Anan Municipality and Others.Special Civil Application no. 3020 of 2009; SC 31639/2009

22
  It also stipulates a separate eligibility criterion for the surrogate mother.

-The surrogate must be a close relative of the intending couple and be a

married woman having a child of her own.

-She should between the age of 25-35 years, not have been surrogate earlier
and must be certifiably mentally and physically fit.

 On the legal status of a surrogate child, the Bill states that any child born out of a
surrogacy procedure shall be the biological child of the intending couple.

-The new born child shall be entitled to all rights and privileges that are
available to a natural child.

 The Bill also seeks to regulate functioning of surrogacy clinics. All surrogacy clinics
in the country need to be registered by the appropriate authority in order to undertake
surrogacy or its related procedures.

 The Bill provides for various safeguards for surrogate mothers. One of them is
insurance coverage for sometime to cover not only the period of pregnancy but after
that also.

 It also specifies that no sex selection can be done when it comes to surrogacy.

Analysis of the Surrogacy (Regulation) Bill

 The Bill defines surrogacy as a practice in which a woman gives birth to a child for an
intending couple with the intention of handing over the child after birth to the
intending couple.

 The Bill bans commercial surrogacy, but it does allow altruistic surrogacy. Altruistic
surrogacy does not involve monetary compensation to the surrogate mother other than
the medical expenses and insurance coverage during the course of the pregnancy.
Commercial surrogacy is surrogacy or such related procedures undertaken for a
monetary reward or benefit (in cash or in-kind) apart from the basic medical expenses
and insurance coverage.

 Surrogacy is allowed when it is: (i) for intending couples who suffer from proven
infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing

23
 children for sale, prostitution or other forms of exploitation; and (v) for any disease or
condition specified through regulations.

 The intending couple should have the following issued by the appropriate authority:

 Certificate of essentiality

 Certificate of eligibility

A certificate of essentiality will be issued if the following conditions are fulfilled:

 A certificate of proven infertility of 1 or both members of the intending couple

from a District Medical Board;

 An order of parentage and custody of the surrogate child passed by a

Magistrate’s court; and

 Insurance coverage for sixteen months that cover postpartum delivery

complications for the surrogate mother.

The certificate of eligibility to the intending couple will be issued upon fulfilment of the
following conditions:

 The couple should be Indian citizens and married for at least 5 years;

 the wife should be between 23 and 50 years old and the husband should be
between 26 and 55 years old;

 The couple does not have any surviving child (biological, adopted or
surrogate); this would not include a child who is mentally or physically
challenged or suffers from life-threatening disorder or fatal illness; and

 Other conditions that may be specified by regulations.

To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has
to be:

 A close relative of the intending couple;

 A married woman with her own child;

 25 to 35 years old;

 A surrogate only once in her lifetime; and

 Having a certificate of medical and psychological fitness for surrogacy.

 Further, the surrogate mother cannot offer her own gametes for surrogacy.

24
Surrogacy clinics can undertake surrogacy procedures only if they are registered by the
appropriate authority. Clinics must apply for registration within sixty days from the date of
appointment of the appropriate authority.

The central government shall constitute the National Surrogacy Board (NSB) and the state
governments shall constitute the State Surrogacy Boards (SSB).

Functions of the NSB include the following:

 Advising the union govt. on policy matters relating to surrogacy;

 Establishing a code of conduct for surrogacy clinics; and

 Supervising the functioning of SSBs.

The offences under the Bill include:

(i) undertaking or advertising commercial surrogacy;

(ii) exploiting the surrogate mother;
(iii) abandoning, exploiting or disowning a surrogate child; and
(iv) selling or importing human embryo or gametes for surrogacy. The
penalty for such offences is imprisonment up to ten years and a fine
up to ten lakh rupees. The Bill also specifies a range of offences
and penalties for other contraventions of its provisions.

Constitutional Aspects
(i) The right to procreation and reproductive autonomy as a fundamental right

The right to procreate and to found a family is a fundamental right. It is a part of the
reproductive autonomy guaranteed to every individual. The procreative right can be
looked at from two perspectives one containing the positive and the negative right to
procreate and the other being the narrow and the broader right to procreate. The narrow
procreative right, which is a negative or first generation right, is linked to a bundle of
fundamental negative rights regarding bodily integrity. The broader procreative right
which is positive or second generation right, is linked to economic and social rights (or
entitlements) like rights to reproductive education and actual means to choose family size.

Established position of law fortifying “the reproductive right”

25
It is an established principle in law that the reproductive right of all persons is a basic
human right. In B.K. Parthasarathi v. Govt. of A.P.15, the Court upheld “the right of
reproductive autonomy” of an individual as a facet of his “right to privacy” whilst
agreeing with the decision of the US Supreme Court in Skinner v. State of Oklahoma16,
which characterised the right to reproduce as one of the basic civil rights of man. Further
in R. Rajagopal v. State of T.N.17 the 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”. A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child-bearing and education among other matters. The personal
decision of the individual about the birth of children is called “the right of reproductive
autonomy”.

(ii) The right to privacy within the meaning of Article 21 encapsulates the right to
parenthood
In Gobind v. State of M.P.18and Kharak Singh v. State of U.P.19 the right to privacy has
been identified as a constitutionally protected right, being a facet of Article 21 of the
Constitution. The personal decision of a single person about the birth of a baby through
surrogacy is called “the right of reproductive autonomy” which can be inferred to be a
facet of the right of privacy guaranteed under Article 21 of the Constitution. Thus, the
right of privacy of every citizen or person to be free from unwarranted governmental
intrusion into matters fundamentally affecting a decision to bear or beget a child through
surrogacy cannot be taken away. In the simplest of terms the right to commission
surrogacy, to found a family, to procreate is a personal decision which cannot and should
not have government intrusion in a democratic society.
The right to life under Article 21 of the Constitution of India includes “the right to
motherhood” as held in Hema Vijay Menon v. State of Maharashtra.20Thus the
Reproductive rights get constitutional protection. Reproductive rights include with it a
wide range of rights, the right to abortion, the right to contraception, the right to have

15
1999 SCC OnLine AP 514 : AIR 2000 AP 156
16
1942 SCC OnLine USSC 125 : 86 L Ed 1655 : 316 US 535 (1942)
17
(1994) 6 SCC 632 : AIR 1995 SC 264.
18
(1975) 2 SCC 148 : AIR 1975 SC 1378
19
(1964) 1 SCR 332 : AIR 1963 SC 1295
20
2015 SCC OnLine Bom 6127 : (2015) 5 AIR Bom R 370

26
children. How an individual decides to use this right cannot, be intruded upon by the
Government unless there is interference with another individual’s right.
The right to reproduction has many facets. 21In one of the cases the Supreme Court has
held that a woman’s right to make reproductive choices is also a dimension of “personal
liberty” as understood under Article 21 of the Constitution of India. There is a need to
recognize that reproductive choices are twofold it includes the right to procreate as well
as to abstain from procreating. The crucial consideration is that a woman’s right to
privacy, dignity and bodily integrity should be respected. The reproductive rights include
a woman’s entitlement to carry a pregnancy to its full term, to give birth and to
subsequently raise children.

(iii) The right to parenthood is enshrined in various international instruments

The ICCPR and UDHR resonate the right to parenthood. The right to parenthood has
been recognised in international law through various covenants and declarations such as
the Universal Declaration of Human Rights, 1948 and International Covenant on Civil
and Political Rights, 1966. The right to “found a family” established as available to all
persons without any discrimination on the basis of race, nationality or religion. The law
provides that “No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his honour and
reputation” and that everyone has the right to the protection of the law against such
interference or attacks. Further Article 23(1)(b) of the International Convention on the
Protection and Promotion of the Rights and Dignity of Persons with Disabilities,
200622entails the right to reproductive health and education. The reproductive rights is
evident in its entrenchment in international law can be classified under four broad health-
related categories viz. (i) the right to found a family; (ii) the right to decide the number
and spacing of children; (iii) the right to family planning information and services; and
(iv) the right to benefit from scientific advancement. The bundle of human rights provided

21
Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1 : AIR 2010 SC 235
22
The text was adopted by the United Nations General Assembly on 13-12-2006, and opened for signature on
30-3-2007. Following ratification by the 20th party, it came into force on 3-5-2008.

27
in international law in various human right documents suggests the existence of a right to
procreation and reproductive health. 23

23
Chantelle Washenfelder, Regulating A Revolution: The Extent of Reproductive Rights in Canada, 44 Health
Law Review, Vol. 12 No. 2, 44 (2004), p. 12.

28
 CHAPTER-4

SITUATIONAL ANALYSIS OF THE PRESENT SITUATION:SOCIAL,LEGAL &

ETHICAL ASPECTS

SOCIO-PSYCHOLOGICAL ISSUES

Women giving up babies still fall outside the acceptable remit. Normal population surveys,
on the contrary, are less accepting of third party reproduction; they have no personal need to
reconsider and hence maintain their original normative cognitively consonant state.
Psychological issues involved in surrogate motherhood triads: The Surrogate Mother (or
Couple) Relinquishing the Baby at or Soon after Birth. The commissioning or intended
mother (or couple) receiving the commissioned Baby and The offspring.

Women who become surrogate mothers usually have good reason to believe they will have
normal, relatively easy pregnancies, but all experience routine aches and pains and some
experience complications that may lead to a difficult pregnancy. In surrogacy, the father feels
discomfort and awkwardness that a woman other than his wife is the mother of the child.
From the child's perspective, the mechanisms of how a pregnancy was achieved would be a
minimal psychological issue compared to whether one's birth mother chose not to keep the
child.

Surrogate motherhood can cause conflicts in the family, as well as strained relationships
between the surrogate mother and her husband. He may struggle to accept the fact that his
wife is pregnant with a child unrelated to either of them, and the children in the family may
wonder why they are not going to have a new sibling. Some surrogates are very young and
may not understand the consequences and regret their decisions later at the time of
relinquishment or even later in life, when it is too late to do anything about it. In India
surrogates explicitly stated that money was one reason for becoming a surrogate. Surrogate
mothers expected their commissioning parents to be open about the child’s origins, as they
themselves had told all their own children about the surrogate baby being part of the intended
couple’s family-not their own. As a result of this, most surrogate mothers expected some
contact between them to continue following relinquishment of the baby, so that they

29
maintained their new friendships and their children could still see the surrogate child. During
the nine months of gestation, the biological mother bonds with and becomes emotionally
attached to the baby growing inside her.

However ,the LGBT community gets the most benefit out of this law.

LEGAL ISSUES

The Indian system only recognizes the birth mother. There is no concept of DNA testing for
establishing paternity as far as the Indian legal system is concerned, i.e., the name on the
child's birth certificate has to be that of the birth mother and her husband. In 2008 the
Supreme Court of India in the Manji's case (Japanese Baby) has held that commercial
surrogacy is permitted in India and it has again increased the international confidence in
going for surrogacy in India.

In case of divorce of intended parents before the completion of surrogacy the custody of child
remains a question mark. Complicated situation arises when both parties refuse to take
custody of child specifically when the child is born abnormal.

HEALTH ISSUES

All women considering surrogacy should be aware that there are serious risks with IVF,
fertility medications, pregnancy and childbirth. The list compiled below is an extensive list of
all types of side effects, complications and serious risks that surrogate mothers face. Common
side effects during pregnancy like exhaustion (weariness common from first weeks), altered
appetite and senses of taste and smell, nausea and vomiting (50% of women, first trimester),
heartburn and indigestion, constipation , weight gain , dizziness and light-headedness ,
bloating, swelling, fluid retention, hemorrhoids.24 The concept of surrogacy in India is not
new. Commercial surrogacy or "Womb for rent," is a growing business in India. In India,
English speaking environment and cheaper services attract the willing clients. Future
projections of surrogacy practice range from opportunity to exploitation - from rural women

24
Surrogacy in Canada online articles, Risks to Surrogate Mothers. (2001-2016). [Online]. Available:
https://surrogacy.ca/resources/articles/53-risks-to-surrogate-mothers.h tml

30
in India uplifted out of poverty to a futuristic nightmare of developing country baby farm. In
case of surrogacy in India, it is hard to tell that whether these women are exercising their own
personal rights or whether they are forced to become surrogate mothers due to their mother-
in-law's or husband's desire to fulfill material and financial needs. Opponents of surrogacy
argue that the practice is equivalent to prostitution and by virtue of that similarity; it should
be disallowed on moral grounds. Surrogacy contracts are "dehumanizing and alienating “
since they deny the legitimacy of the surrogate's perspective on her pregnancy. Surrogate
mother tries to avoid developing a special bond with the child in her and views the pregnancy
as merely a way to earn the much-needed money. The payment for bodily services
dehumanizes the surrogate mother and exploits her reproductive organs and capability for
personal gains of the wealthy.

RELIGIOUS ISSUES

Surrogacy is a complex and contentious moral and ethical issue across global cultures.
Religions naturally have views on procreation, because the spiritual laws guiding human life
are their domain. Religious views on surrogacy vary from complete prohibition to
acceptance. The rise of Westerners using Indian surrogate mothers has added a political
dimension to the religious and legal debate. Religions naturally have views on procreation,
because the spiritual laws guiding human life are their domain. The Christian religion Bible
has also been interpreted as stating that children are a gift, not a right. God chooses whether
people have babies or not; if a couple is childless, it may be God’s will. When individuals or
couples are unable to naturally bear children, they have several other alternatives in starting a
family. Certainly, while adoption is one choice, there are many who wish to see a child
through conception, pregnancy, birth, and rearing. For some, there is also the issue of having
a true biological connection with that child.

Muslim religion believe that all kinds of the surrogacy arrangements are Haram in the
Muslim Tradition and the rules and regulation of the surrogacy arrangements involved in the
surrogacy arrangements. Gestational surrogacy as a treatment for infertility is being practiced
in some well-known medical institutions in Tehran and some other cities in Iran. While the
majority of Muslims in the world are Sunni, the majority of Iranians are Shiite. Most Sunni
scholars do not permit surrogate motherhood, since it involves introducing the sperm of a
man into the uterus of a woman to whom he is not married. Most Shiite scholars, however,

31
have issued jurisprudential decrees (fatwas) that allow surrogate motherhood as a treatment
for infertility, albeit only for legal couples. They regard this practice as transferring an
embryo or fetus from one womb to another, which is not forbidden in Shiite jurisprudence.

Nevertheless, there are some controversies concerning some issues such as kinship and
inheritance. 25 The main ethical concern of Iran’s experience with gestational surrogacy is the
monetary relation between the intended couple and the surrogate mother. While monetary
remuneration is practiced in Iran and allowed by religious authorities, it seems to suffer from
ethical problems. This article proposes that this kind of monetary relation should be modified
and limited to reimbursement of normal costs. Such modification requires new legislation and
religious decrees. All kind of the surrogacy arrangements are Haram in the Muslim Tradition
and the rules and regulation of the surrogacy arrangements involved in the surrogacy
arrangements.

Jewish law permits surrogacy only if it is a full gestational surrogacy. Also, the gametes of
both intended parents should be included and in vitro fertilization should be the mode of
fertilization followed. Despite the different issues pertaining to surrogacy, statistics reveal
that there has been a steady rise in the number of women donning the role of surrogates. In
2006 alone, the Society for Assisted Reproductive Technology or SART estimated about 260
surrogate deliveries, and since then the number has been on a constant rise.

25
K. Aramesh, "Surrogacy is prohibited in Islam, medical ethics and history of medicine research center,"
Journal of Medical Ethics, vol. 35, no. 5, 2009

32
 CHAPTER-5
ANALYSIS OF THE HEALTH RELATED ASPECTS OF SURROGACY

Health Risks Associated with Surrogacy

in India, surrogates are implanted with up to five embryos in order to increase the chances of
pregnancy. Using such a large number of embryos increases health risks for babies and the
mother. Chances of post-partum depression of surrogates are more with the child that grew in
mother's womb. Pregnancy, birth and the post-partum period includes complications such as
pre-eclampsia and eclampsia, urinary tract infections, stress incontinence, hemorrhoids,
gestational diabetes, life-threatening hemorrhage and pulmonary embolism. Multiple
pregnancy increases the likelihood of requiring an operative delivery. A surrogate host of
advanced maternal age has increased risk of perinatal mortality, perinatal death, intrauterine
fetal death, neonatal death. There is a greater risk to the mother of pregnancy induced
hypertension, stroke and placental abruption. When hormones or drugs the surrogate is
instructed to take, all drugs have side-effects. Many women undergoing Artificial
insemination also take fertility treatments, increasing the likelihood of an adverse reaction
and risks involved with the procedure.

Issues such as premature delivery, genetic malformation and infections which lead to
increased hospitalization of newborn are important issues to be considered in surrogacy
contract.

Many surrogate mother's breastfeed the newborns during the first few hours following birth.
However, parents find difficulty in initiating the breast feeding and in establishing the
bonding between mother and child in case of surrogacy.

One of the major draw backs of induced lactation in most surrogates or adopting mothers
rarely produced the same quantity of breast milk as a new mother immediately following
child birth. This presents a problem in terms of infant nutrition.

Surrogacy & Women’s Right To Health

Future projections of surrogacy practice range from opportunity to exploitation - from rural

33
women in India uplifted out of poverty to a futuristic nightmare of developing country baby
farm. [23] In case of surrogacy in India, it is hard to tell that whether these women are
exercising their own personal rights or whether they are forced to become surrogate mothers
due to their mother-in-law's or husband's desire to fulfill material and financial needs.

Opponents of surrogacy argue that the practice is equivalent to prostitution and by virtue of
that similarity, it should be disallowed on moral grounds. Surrogacy contracts are
"dehumanizing and alienating since they deny the legitimacy of the surrogate's perspective on
her pregnancy. [23] Surrogate mother tries to avoid developing a special bond with the child in
her and views the pregnancy as merely a way to earn the much-needed money. [23] The
payment for bodily services dehumanizes the surrogate mother and exploits her reproductive
organs and capability for personal gains of the wealthy.

In fact, outsourcing surrogacy is an exploitative practice in India. Currently, no law exists to

protect the surrogate mother in case of birth complication, forced abortion etc.

Since 2002, commercial surrogacy has almost become legal in India and India has become a
sort of leader in it. This is the reason that has led critics to allege that surrogacy business is
exploiting poor women in country like India already having high maternal mortality ratio.
According to estimates, which might be conservative - the business of surrogacy in India is
already touching $445-million a year. 26

Surrogate motherhood as an arrangement, in which a woman takes no ownership of the child

born, has raised moral, ethical social and legal questions about both woman and the
"Commissioned baby." According to legal experts
"...if surrogacy becomes an avenue by which women in richer countries choose poorer
women in our country to bear their babies, then it is economic exploitation, a kind of
biological colonization.".

Public Health Relevance Of Surrogacy

26
Jacobsson B, Ladfors L, Milsom I. Advanced maternal age and adverse perinatal outcome. Obstet Gynecol
2004;104:727-33.

34
urrogacy and ART offer solutions to infertility. The existing demand for these services
distorts priorities in the organization of health-care services as pressure is built to set up hi-
tech reproductive techniques within open markets and public sector service infrastructure
without building the basic facilities that help to prevent the infertility. The poor have to either
sell their assets to access the facilities or use the opportunity to earn by selling their own
reproductive potential - the women that are pushed into this process carry the maximum risks
to their health. Over the past 10 years or so, our country has seen a mushrooming of fertility
clinics. This has inspired the medical tourism, where surrogacy has important place in its list
of attraction as couples from abroad come seeking easy access to surrogate mothers.
According to private providers, first world comforts and quality is available at these Indian
Institutions at the third world prices. Often this is achieved by reducing to the bare minimum,
the necessary tests and safety procedures in women. In view of the high rate of prevalence
and poor implementation of ART Regulatory Guidelines-2005 has raised several issues about
the suitability of surrogacy in the present context from public health point of view. 27 Most of
issues and problems are as a result of totally unregulated private ART clinics-with varying
costs, standards and procedures-that give primacy to profits rather than epidemiological needs
of the majority in India. The need to prevent secondary infertility owing to poor obstetric
services, reproductive tract infections and poor nutritional status of women and provision of
basic services to deal with treatment of infertility is thus ignored by the government. Private
sector is given full freedom to expand ART clinics to promote medical tourism and
surrogacy. This can physically harm surrogates leading various complications due to
techniques, e.g., low birth weights and malformed babies, which are not publically
disclosed. There is no transparency in surrogacy contract and chances of legal problems are
high. Cross border surrogacy leads to problems related to nationality, motherhood and rights
of child.

27
Jadva V, Murray C, Lycett E, MacCallum F, Golombok S. Surrogacy: The experiences of surrogate
mothers. Hum Reprod 2003;18:2196-204

35
 CHAPTER-6
A COMPARATIVE STUDY OF THE LEGISLATIONS ACROSS THE
GLOBE
Due to rapid increase in the prices in European countries, access to infertility services are
decreased by a great amount. This has resulted into visiting of the couples in some other
countries where there are minimal rates for the surrogacy. Every country has the separate
laws on the surrogacy, many allow it and many forbidden it. In the countries like Germany,
Sweden, France and U.K. etc. surrogacy is banned. There is a rapid growth in international
surrogacy, but there are no uniform rules or regulations which need to be adhered by all the
nations regarding this matter. Some countries also demand that DNA of the surrogate child
should at least match with one of the commissioning parents. In U.S.A., there are various
legal formalities which need to be performed in the cases of surrogacy. This creates
numerous problems and stress to the commissioning parents because of the time taking
formalities34 .

In Belgium, Altruistic surrogacy is allowed but commercial surrogacy is banned. Although

Altruistic surrogacy is allowed but there is only one hospital which takes in the couples, but,
there to with the strict rules. So, the people generally prefer to have treatment outside the
country35 .

In France, Article 17/6 of Civil Code makes the agreement with the third person completely
void relating to the gestation.

Altruistic surrogacy is allowed in Canada, Britain, Australia, and Denmark.

- All forms of surrogacy are completely prohibited in France, Germany, Italy, Portugal, and
Bulgaria.

- Armenia, Georgia, Kazakhstan, Russia, Ukraine allow both altruistic and commercial
surrogacy.

- Some countries allow surrogacy like Kenya, Malaysia, and Nigeria but have no formal law
to regulate the practice.

36
The laws related to surrogacy vary in the USA from state to state like surrogacy friendly
states like Arkansas, California, New Hampshire, etc .allow both commercial and altruistic
surrogacy. Commercial surrogacy is not allowed in New York and Michigan completely
forbids surrogacy agreements.

37
 CHAPTER-7

CONCLUSION & SUGGESTIONS

Developing nations that permit commercial surrogacy might nonetheless better protect
the negative reproductive rights of their female citizens. Negative rights violation can
and should be addressed by the state that permits commercial surrogacy through a
strengthened commitment to women’s empowerment, which it can demonstrate by
improving the conditions of vulnerability that make such offers so difficult for female
citizens to refuse. Positive reproductive rights must be employed to the end of securing
the social, material and potential tools by which all women will truly be able to make
reproductive decisions free from coercion.
From my research it is evident that the hypothesis is proved. India lacks a good governing
surrogacy laws & needs to follow the developed model such as that of Israel.
Israel model must be adopted by every nation proposing to legalize commercial
surrogacy as it has successfully balanced the needs of the society and those of private
individuals. Both the surrogate and the infertile couple should obtain legal counsel before
agreeing to and signing a contract. Disclosure of the surrogate relationship should be limited
so as to avoid unwarranted scrutiny and the criteria for being a surrogate should be laid down
clearly. Establishing methods to control payment for surrogacy and making it altruistic act,
instead of a business could help eliminate this unethical aspect. Laws should be framed and
implemented to cover the grey areas to protect the rights of women and children.
There is a urgent need to have a specific legislation for the regulation and control of
surrogacy in India. It should take into account issues like access to surrogacy, liability issues,
interest of the child, parentage of child etc. The terms and conditions must be clearly laid
down and proper balance should be maintained between the duties of surrogate mother
and the protection of dignity of her rights. The relationship between the surrogate mother and
the child and commissioning parents should be properly defined and made uniform in all
surrogate practices. Its high time for the Indian Parliament to study in detail the international
perspectives on surrogacy in general and the position prevailed in India in particular to
understand it the best and to provide a good deal of rules and regulations to our own country
after carefully considering societal feelings and acceptance to this practice of surrogacy.

38
Bibliography
Books
i)P. Shetty, “India’s unregulated surrogacy industry”, The Lancet, 2012, 380(9854)

ii) A. Pande, Wombs in Labor: Transnational Commercial Surrogacy in India, New York,
Columbia University Press, 2014

Reports & Bills

Law Commission of India 2009-228th report, Ministry Of law

The Surrogacy (Regulation) Bill,2016. Government of India, Ministry of Health and Family
Welfare. Press Information Bureau. [Internet]. [Cited 2021 May 08]. Available from:
https://www.prsindia. org/billtrack/surrogacy-regulation-bill-2016
The Surrogacy (Regulation) Bill, 2019. Government of India, Ministry of Health and Family
Welfare. Press Information Bureau [Internet]. [Cited 2021 May 09]. Available from:
https://www.prsindia. org/billtrack/surrogacy-regulation-bill-2019

Websites
https://www.manupatra.com
https://www.scconline.in
https://www.jstor.ac.in

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