RESEARCH PROPOSAL ON EVOLUTION OF SURROGACY LAWS

INTRODUCTION

Surrogacy is an innovative and likely desired option for many individuals and couples wishing to
create a family, but it also poses a host of ethical questions that transcend various legal areas.
These issues have been worsened in recent years as a consequence of globalization-enabled
reproductive tourism.1 Governments around the globe have engaged in a form of "regulatory
arbitrage," in which the limitation of commercial or altruistic surrogacy in some jurisdictions
leads to more open legal frameworks in others.

The Indian legal system has never authorised surrogacy. Even in 2019, no such legislation exists
addressing surrogacy, with the exception of a Bill that is presently sitting in the legislature owing
to many legal challenges. Although the Indian court has legalised surrogacy in various occasions.
Surrogacy was used to deliver a kid to a Japanese couple in Baby Manji Yamada v. Union of
India. The husband was forced to return to Japan after his visa was cancelled, and the couple
split. For three months after her birth, despite being granted custody by the court after her mother
had refused, the baby could not leave India since she was not an Indian or Japanese citizen. The
grandmother was later allowed to travel with the child by the Supreme Court of India.

The Gujarat High Court examined the citizenship of two twin babies born through surrogacy to
German parents in Jan Balaz v Union of India. The court ruled that the rights of the biological
parents, the surrogate mother, and any other third parties should come second to the rights of the
two new born, innocent babies. Any link with the surrogate mother, whether emotional or legal
in origin, must be carefully evaluated. The difficulty was that the German parents wanted to
bring their twins back to Germany, but surrogacy had already been illegal in Germany, and the
infants couldn't be given dual citizenship as India doesn't allow it. The court, on the other hand,
permitted the parents to return to Germany, promising that the children would be taken to
Germany, where the parents could adopt them under German law.2

In the absence of a special rule, such as the Indian Contract Act, 1872, it became general
assumption that any surrogacy agreement would be regulated by contract laws. However,

1
Human Fertilisation Embryology Authority. (2014). Surrogacy., What is surrogacy? Is surrogacy for me? from
http://www.hfea.gov.uk/fertility-treatment-optionssurrogacy.html#1
2
Ibid.

1
because the consideration and the actual object on which the contract was executed were unclear,
there were a variety of proponents and opponents.3 This created a lot of debate as stating the
child as the contract's purpose was against public policy, and it was unclear if the compensation
provided in commercial surrogacy would be deemed consideration or not.

The issue of governing surrogacy agreements under contract laws has come to the attention of
the judiciary, and there have been a number of common law judgments, such as the case of Re
TT, which held that surrogacy agreements cannot be considered surrogate contracts and relied on
the principle that "All contracts are agreements, but not all agreements are contracts." Though
there was a division of view in the case Re Paternity of FTR, where the Wisconsin Supreme
Court found that public policy is not impeded and that compensation may be deemed
consideration, and that the arrangement may be enforced if it is for the child's welfare.

Public examples of surrogacy in India are also accessible. Karan Johar, a Bollywood producer
and director, utilised surrogacy to carry twins and became a single father in 2017 using (IVF).
Tusshar Kapoor, another Bollywood star, became a single father in 2016 after utilising in-vitro
fertilisation. Surrogacy is being utilised by people who desire to have a child despite the absence
of laws.4

RATIONAL OF THE STUDY

This study aims to examine the various aspects and evolution of surrogacy law in various
countries, including India, to determine whether it is a blessing or a curse in the Indian legal
context; who can access it; who can do it; and what punishments should be awarded if a person's
right/s are violated. Various individuals, including legal experts and legal researchers, have
different perspectives on the subject.

Review of literature

Pranav Rao's assessment on India's surrogacy laws is as follows: The 2016 surrogacy legislation
is the subject of this article. The study's author looked at commercial surrogacy as well as the
arguments for and against it.5 This study takes a close look into surrogacy in India. Surrogacy

3
Buchanan, Jim, Regulating the Baby Makers: From Baby M to the Present, a Bibliography, 1991. 28p. Vance
Biblios.
4
Ibid.
5
 B.K. Parthasarathi vs Government of A.P. And Others, 2000 (1) ALD 199, 1999 (5) ALT 715.

2
(Regulation) Bill 2019 - The goal of this paper is to provide a solution to the issue, "How can the
Surrogacy Bill be made more inclusive?" That article, which was published in The Hindu on July
26th, 2019, delves into the concerns raised by the Surrogacy (Regulation) Bill 2019. The
relevance of surrogacy regulation is discussed in this article, as well as the new surrogacy law.
This article examines a number of aspects of the proposed surrogacy law for 2019. (In 2019, a
bill to regulate surrogacy will be introduced.) Surrogacy (Regulation) Bill by PRS, 2019.

The Surrogacy (Regulation) Bill, 2019, provides an overview of the following topics: the
purposes for which surrogacy is permitted, eligibility criteria for intending couples, surrogacy
clinic registration, National and State Surrogacy Boards, and offences and penalties (The
Surrogacy (Regulation) Bill, 2019).

Sharmila Rudrappa analyses the formation and maintenance of reproductive labour markets, the
participation of agencies and surrogacy brokers, and how women become surrogate mothers in
her book Discounted Life: The Price of Global Surrogacy in India. Is surrogacy only a labour
contract in which the surrogate mother is paid, or does it have a deeper meaning and value?
Despite his claims that the reproductive business is meant to restrict and confine women
workers, her interviews reveal that surrogate moms in Bangalore considered the experience to be
life-changing on the whole. He also delves into this conundrum, as well as the real-life
experiences of many surrogate mothers, for whom physical commercialization is perceived as a
life-affirming trend. (Living on a Budget) Outsourcing Life: Globalization and Transnational
Surrogacy in India, by Sayantani DasGupta and Shamita Das Dasgupta- This book looks at one
facet of new assisted reproductive technologies: gestational surrogacy, and how it's transforming
people's perceptions of motherhood throughout the world. 6 Surrogacy has spawned a robust
worldwide business where money is legally exchanged for children and reproductive labour has
taken on a profitable commercial tone. Law, research, and activism, on the other hand, are only
dimly aware of this reality, and are only now catching up with quickly changing on-the-ground
realities.7 This interdisciplinary collection of articles addresses a knowledge gap by examining
key topics in transnational commercial gestational surrogacy as it emerges from a strange

6
Rao, Mamta, Surrogacy: The Ethico-Legal Challenge, January 2012, Vol. XIII, Issue1, pp.12-14
7
Jilova, C. R., Surrogacy and Socio-Legal Challenges, Chotanagpur Law Journal, 2011-12, Vol. 4, No. 4, p.153.

3
relationship between the West (mostly the United States) and India. (In India, Globalization and
Transnational Surrogacy).8

RESEARCH QUESTIONS

To keep my proposal simple and to the point, the goals will be my research questions translated
to question format, which are –

To examine the various aspects and evolution of surrogacy law in various countries, including
India, to determine whether it is a blessing or a curse in the Indian legal context; who can access
it; who can do it; and what punishments should be awarded if a person's rights are violated.

HYPOTHESIS

1. Surrogacy is a boon to society in many ways.

2. For commissioning parents and surrogates, commercial surrogacy is a viable option.

3. Surrogacy in urban regions is more effective than in rural places.

RESEARCH OBJECTIVES

The major purpose of this study is to analyse legal obstacles surrounding surrogacy from an
international standpoint, with the goal of establishing the basis for a legal framework to
overcome these concerns. Other sub-goals include:

1. To debate and examine the meaning, extent, and kinds of surrogacy, as well as the definitions
of terminology such as fosterage, adoption, guardianship, and gamete donation.

2. To analyse the necessity for and reason for legislation to govern surrogacy in India, as well as
to develop a legal framework (civil and criminal) to resolve legal concerns surrounding
surrogacy.

3. To provide suggestions to the Indian government on surrogacy law, regulation, and

arrangements.

8
Chawla, Monica, Surrogacy: A Need for a New Law, Civil and Military Law Journal, 2009, Vol. 45, p.189.

4
METHODOLOGY AND DATA COLLECTION

The majority of my study will be qualitative, descriptive, and exploratory in nature. It will be
written in APA format. Books, legislation, research articles, automated information, periodicals,
and prior research papers will be my key sources of knowledge. To some degree, observation
and interviews, as well as open-ended questions, will be used. Doctors, religious experts,
intended parents, and surrogate moms might all be part of my population for observation or
interviews in this manner. In addition to interlibrary services, traditional libraries and digital
libraries will be the primary sources of my data and analysis. My study will primarily focus on
the legal concerns surrounding surrogacy in several foreign countries, with a particular focus on
India. However, physical, ethical, psychological, and emotional aspects will be explored as well,
in a nutshell. Because this is a qualitative study, I will employ an inductive approach of
reasoning combined with a deductive strategy.

EXTENT/LIMITATION OF STUDY

The numerous sorts of instances from various nations are investigated. There's also a look at
some of India's most famous surrogacy cases. Researchers' studies, publications, and books by
different writers are also examined. The situation in India is contrasted to the situation in other
nations. This study also includes various opinions on surrogacy expressed by individuals.

The researcher will concentrate on the good and negative elements of surrogacy in this study.
The study took into account both positive and negative factors before concluding that surrogacy
is beneficial to society. Commercial surrogacy is the best kind, and it is a very beneficial notion
for treating infertility in metropolitan areas.

The components of surrogate exploitation remain the same. Nobody was provided a copy of the
contract, nor was anyone told about the financial transactions, the processes for giving over the
kid, or the penalties for breaking the contract. If a legal problem arises, the majority of them rely
on agents for assistance. Despite the fact that the agents are mainly in favour of IPs, the
surrogates have no one else to rely on except the agents. None of the surrogates had ever worked
with a lawyer when it came to signing or preparing the surrogacy contract. The contract pattern
varies and differs across clinics. The permission is gained via undue influence or coercion since
the legal legality of the surrogacy contract is defective under the Indian Contract Act. The IP we

5
spoke with was likewise aware that the contract had no legal standing. Making the surrogate sign
on a stamp paper with witness signatures and other documents, on the other hand, gives them the
impression that they are legally responsible for the contract's terms. According to the research,
there is a practise of pre-contracting in Mumbai, despite the likelihood of a future legal
restriction!

The diverse experiences from two separate locations show that generalisations in the pan-India
setting are difficult to make. Despite the fact that there are many common elements in surrogacy
practise that generalise in comparable socioeconomic backgrounds, this study restricts its
conclusions to the two research locations we investigated. The information we gathered from the
surrogates' interviews and interactions took place largely in the presence of ART agents,
physicians, and ART bank owners. This is a significant impediment to obtaining uninhibited and
fearless replies from the study's participants. As a result, the narrative that this paper analyses are
restricted.

CHAPTERIZATION/ORGANIZATION

1. Chapter 1

Historical background- this chapter elaborates upon the historical background of surrogacy
laws in India.

2. Chapter 2

The provisions in Surrogacy Laws- Classification of laws and legislations with regards to
surrogacy.

3. Chapter 3

Surrogacy regulation Bill 2016 & 2019- Critical Analysis of the Surrogacy Regulation Bill,
2016 & 2019.

4. Chapter 4

Verification of the hypothesis- In this chapter, I have verified the hypothesis mentioned in
above part of the proposal.

5. Chapter 5

6
 Summary of findings/ conclusion/ recommendations.

SUMMARY OF FINDINGS/CONCLUSION/SUGGESTIONS

Commercial surrogacy was legalised in India in 2002, and as a result of the enormous boom of
surrogacy in India, several commercial surrogacy firms have sprung up, claiming to be experts in
surrogacy legislation and aiding foreigners seeking a mother's womb for hire. Such marshalling
is seen as highly flammable in nature, as it promotes the commercialization of infant sales while
simultaneously undermining the dignity and repute of the vouchsafed phenomena of women's
reproductive capacity.

The Law Commission of India's 228th report suggested that commercial surrogacy be prohibited
and that appropriate laws be established to allow for ethical altruistic surgery.

The Indian Council of Medical Research developed recommendations for regulating surrogacy
agreements, which are as follows:

1. The surrogate mother would be entitled to monetary compensation, with the amount
determined between the couple and the surrogate mother.

2. The surrogate mother is unable to provide her own egg for surrogacy and must give up all
parental rights to the surrogate kid.

Of the 1489 responders, 483 were between the ages of 18 and 30, while 588 were between the
ages of 31 and 50. There were 310 respondents between the ages of 51 and 60, and 108
respondents aged 60 and above. 12.0% of those who responded have said categorically that they
Perhaps for the claim that the new Surrogacy Bill of 2019 would diminish commercial
surrogacy. 60.3 percent of respondents have indicated unequivocally that they No to the assertion
that the new Surrogacy Bill of 2019 would diminish commercial surrogacy. 27.7% of
respondents have definitely said that they agree with the assertion that the New Surrogacy Bill of
2019 would diminish commercial surrogacy. Furthermore, the Pearson chi-square test score is
0.000, which is less than 0.05. In this table, the null hypothesis is rejected since there are no
significant connections between age and The New Surrogacy Bill 2019 would decrease

7
commercial surrogacy. Because there is a substantial correlation between age and The New
Surrogacy Bill 2019 will diminish commercial surrogacy, the alternative hypothesis is proven in
this table.

Analysis

Surrogacy is described as a process in which a woman bears a child for a pair known as a
"intending couple" with the aim of handing the kid over to that couple. Surrogacy may be done
for charitable or commercial reasons. Except for medical bills and insurance, there are no
monetary concerns with the former. In the instance of commercial surrogacy, the woman who
bears a child for the intended parents is compensated in cash or in kind.

Suggestions

Surrogacy is a component of Assisted Reproductive Technology (ART) (ART) (ART). Bringing

the Surrogacy Bill to the ART will be pointless. ART and Surrogacy are intertwined because
ART regulates the methods, processes, and technology of reproductive medicine in surrogacy,
while Surrogacy regulates the implications and ethical difficulties that arise from such
partnerships. As a consequence, ART regulation is a pre-requisite for the correct implementation
of the Surrogacy Bill. Surrogacy law focuses on social, legal, ethical, and moral concerns,
whereas the ART governing legislation focuses on extremely technical and medical ones. The
majority of countries have distinct laws concerning ART and surrogacy. As a consequence, the
Surrogacy Bill should only take effect after the ART Bill has been approved.

The law includes no provision for surrogates to be paid for missed wages during pregnancy if
they would have been working at the time of the pregnancy. However, the government should
pay appropriate compensation to the surrogate and manage it so that there is no opportunity for
bargaining.

It is vital to add a provision in the Bill mandating every reproductive clinic to have a counselling
section to establish whether the surrogate mother came freely or under compulsion. This can be a
useful approach to check on the surrogate mother's mental wellness. The surrogate mother should
obtain unbiased therapy from the counselling team on the full surrogacy process as well as any

8
health complications that may occur as a consequence of it. To ensure that the surrogate mother
is informed of the process and the hazards connected before starting.

Unexpected events, such as a rift or divorce between the intended parents, might lead to the kid
being abandoned. For the best interests of surrogate children, explicit guidelines on the roles and
responsibilities of intended spouses and surrogate mothers in cases of surrogate child
abandonment by intending parents must be incorporated in the Bill. If a quarrel occurs, the
youngster should be considered in need of care and protection straight soon.

Surrogacy is a necessity in today's society. Surrogacy is generally the ultimate choice for infertile
couples who are unable to conceive a biological child. In a society, a child's role would not be
completed. Childlessness has an influence on a family's social and psychological well-being, as
well as society as a whole. The objective of a fundamental right is to make life more meaningful,
full, and worth living, and having a child makes a couple's lives more meaningful and complete.
That's why fundamental human rights encompass surrogacy.

1. The surrogate mother's rights should be safeguarded in every way that is practicable.

2. A thorough contract should be drawn out to prevent any misunderstandings between the
commissioning parents and the surrogate mother, as well as to safeguard the child's rights.

3. If there are any issues with the first parent, the contract should provide that the child will be
raised by a second legal parent.

4. The legal parents of the child should be the commissioning parents.

5. The child's nationality must match the commissioning parents.

Conclusion

The Surrogacy (Regulation) Bill, 2020 and the Assisted Reproductive Technology Regulation
Bill, 2020 are now on their way to becoming concrete legislations that will, hopefully, regulate
surrogacy procedures in the country and provide a free, but secure ART environment. Even yet,
Rajya Sabha should analyse and remark on the ideas' shortcomings and flaws before approving
them. A continuous check on the sector is assured by the establishment of a National Surrogacy

9
Board at the federal level, State Surrogacy Bodies for various states, and other equivalent bodies
for Union territories. However, at the end of the day, it all boils down to how these measures are
implemented and accepted if they are embraced.

Re

10
 BIBLIOGRAPHY

ARTICLES

 Human Fertilisation Embryology Authority. (2014). Surrogacy., What is surrogacy? Is

surrogacy for me? from http://www.hfea.gov.uk/fertility-treatment-
optionssurrogacy.html#1
 Prakash, S. (2010). Surrogacy a problem both socially and legally. Assisted Reproductive
Technology and Surrogacy from
https://www.nls.ac.in/resources/ded/classnotesforyear2010ded/N9PIISurrogacy.pdf
 Tehran, A. Tashi, S. Mehran,N. Eskandari,N. Tehrani,D. (2014). Emotional experiences
in surrogate mothers: A qualitative study from
http://www.ncbi.nlm.nih.gov/pubmed/25114669
 European Centre for Law and Justice. (2012). Surrogate Motherhood: A Violation of
Human Rights from http://www.ieb-eib.org/en/pdf/surrogacy-motherhood-icjl.pdf
 Law, Morality & Surrogacy – With Special Reference To Assisted reproductive
Technology – Dr. Justice B.S.Chauhan

CASE LIST

 Yamada Case- A.I.R-2009 S.C. 84.

 Jan Balaz case-A.I. R-2010 Gujrat 21.
 Oxford v. Oxford (58 O.L.R. 251 (1921).
 Roe v. Wade,410 U.S. 113 (1973).
 Anna Johnson v. Mark Calvert, (1993) 5 Cal 4th 84-851 P.2d 776.

ACTS

 Indian Contract Act-1872.

 Indian Evidence Act-1872.
 ART (Regulation) 2010Bill.
 Constitution of India.

11