A STUDY OF SURROGACY LAW AND POLICY IN INDIA: PROBLEM

AND PERSPECTIVE

A
DISSERTATION

UNIVERSITY OF UNIVERSITY LUCKNOW

For the partial fulfillment of LL.M. Degree

2020-2022

Under the Supervision of: Submitted By:

Dr. Mrinalini Singh Vijay Singh

Associate Professor Roll No. 200013215053

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UNIVERSITY OF UNIVERSITY LUCKNOW

Dr. Mrinalini Singh Date:

Assistant Professor of Law Place: Lucknow

University of Lucknow

SUPERVISOR’S CERTIFICATE

This is to certify that the Dissertation Entitled “A STUDY OF SURROGACY LAW

AND POLICY IN INDIA: PROBLEM AND PERSPECTIVE” submitted to
University of Lucknow in partial fulfillment of the requirements for LL.M. One Year
Course, Second semester, is an original and bona-fide research work carried out by
VIJAY SINGH under my supervision and guidance. The work is fit for evaluation.

Dr. Minalini Singh

ii
 UNIVERSITY OF UNIVERSITY LUCKNOW

Date:

Place:

CANDIDATE’S CERTIFICATE

I, the undersigned, hereby solemnly declare that the Dissertation titled: “A

STUDY OF SURROGACY LAW AND POLICY IN INDIA:
PROBLEM AND PERSPECTIVE” submitted to University of Lucknow,
in partial fulfillment of the requirements of the LL.M., One Year Course,
Second semester, is an original and bona-fide research work of mine. I hope
that this work will be helpful in enhancing the knowledge of readers and
framing of the policies in the future course. All the information declared
hereby is true to best of my knowledge.

Vijay Singh
LL.M

Roll No: 200013215053

iii
 ACKNOWLEDGEMENT

No work is complete with solo endeavor, neither is mine. This research would be
incomplete if I do not acknowledge and thank all concerns who have been
instrumental in the successful completion of this project.

I would like to convey my sincere thanks and gratitude to my parents for giving me
a chance to study in this prestigious university where I can pursue and enhance my
knowledge. It is because of their support that I could do this research which is of
much of a debate in India.

I would also like to specially acknowledge the support, guidance and help rendered
by my supervisor Dr. Mrinalini Singh, Assistant Professor, University of Lucknow.
It is through her support that I could understand the subject and thereby analyze the
researched area. The guidance given by her and the suggestion proposed by her are
the backbone of this research for which I will be indebted to her forever.

Further, I would like to acknowledge the help provided by the library staff of
University of Lucknow, Uttar Pradesh in collection and finding the correct and
reliable sources which I have incorporated in this research which ultimately leads to
the completion of this research.

I would like to thank all my friends who have helped me during the course of the
research and their support has also been instrumental in the completion of this
research.

Lastly, I would like to thank God Almighty for blessing me with good health
without which I would not be able to complete this research.

Vijay Singh

LL.M.
Roll No: 200013215053

iv
 Table of Cases

Citation Page No.

 A. K. Gopalan v. State of Madras…………………………………………………………………58

 AGR v. D.R.H. & S.H…………………………………………………………………………………….99
 Baby Manji v. Union of India……………………………………………………………………….66, 94,
100
 Eisenstaedt v. Baird……………………………………………………………………………………..59
 Elisa B v. Superior Court………………………………………………………………………………34
 Gherulal Parakh v. Mahadeodas Maiya………………………………………………………82
 Griswold v. Connecticut……………………………………………………………………………….59
 In Re Baby M. Case…………………………………………………………………………………….19, 96,
 In Re marriage of Moschitta……………………………………………………………………....33
 Jan Balaz v. Anand Municipality………………………………………………………………….70, 93,
101
 Johnson v. Calvert……………………………………………………………………………………….33
 K. Kalaiselvi v.Chennai port trust………………………………………………………………..103
 K. M. v. E. G ………………………………………………………………………………………………..34
 Kartar Singh v. State of Panjab…………………………………………………………………….59
 Kharak Singh v. State of U.P………………………………………………………………………..58
 Kristine H. v. lisa R……………………………………………………………………………………….34
 M. A. Corporation v. Sandesh Kumar & Others…………………………………………..82
 Maneka Gandhi v. Union of India………………………………………………………………..58
 Munn v. Illinois……………………………………………………………………………………………56
 Nirmala Case……………………………………………………………………………………………….56
 Reproductive Technology v. Women…………………………………………………………………..4
 Stainley v. Georgia ………………………………………………………………………………………59

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 ABBREVIATION

AI : Artificial Insemination

AIR : All India Reporters

ART : Assisted Reproductive Technology

AS : Altruistic Surrogacy

CS : Commercial Surrogacy

GS : Gestational Surrogacy

IVF : In Vitro Fertilization

Ibid : Ibidem (In the same place)

ICMR : Indian Council for Medical Research

i.e. : That is

ILJ : Indiana Law Journal

LGBT : Lesbian Gay Bisexual Transgender

SC : Supreme Court

SCC : Supreme Court cases

SCJ : Supreme Court Journal

SCR : Supreme Court Reporter

TS : Traditional Surrogacy

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 TABLE OF CONTENT

CHAPTER I...............................................................................................................................8
INTRODUCTION 8
1.1 Meaning of Surrogacy 8
1.3 Scope of Study: 14
1.4 Research Methodology:14
1.5 Hypotheses: 14
1.6 Limitation of Study: 15
CHAPTER II............................................................................................................................16
SURROGACY: MEANING DEFINITION 16
2.1 Meaning......................................................................................................................16
2.2 Definition....................................................................................................................16
2.3 The concept of surrogate motherhood........................................................................18
2.4 Types of Surrogacy.....................................................................................................19
2.4.1 Traditional method...................................................................................................19
2.4.2 Gestational surrogacy..............................................................................................19
2.4.3 Altruistic Surrogacy.................................................................................................20
2.4.4 Commercial surrogacy.............................................................................................20
CHAPTER -III.........................................................................................................................22
LEGAL FRAMEWORK ON SURROGACY 22
A. Legal rights of surrogate child……………………………………………………….....22
3.1. Legal Issues: 25
3.2. Inheritance Right of the Child 25
3.3. Surrogate Child’s Right of Maintenance 26
3.4. Application of Convention to Cases Involving Surrogacy: 26
3.5. Some Hypothetical Case Scenarios- 28
3.6. LEGAL MOTHER OF THE CHILD 32
3.7. Nationality of Child Born Through Surrogacy 34
3.9. Custody of child if born by surrogate mother 35

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 3.10. If surrogate child born physically and mentality retired: 36
3.11. Status of Divorced Biological Parents In Respect Of the Custody of Child 36
3.11. Right of Information to the Surrogate Child 37
3.12. Enforceability of Surrogate Agreement 37
3.13. Ethical Issues 37
3.14. Parent's Right Not To Tell the Genetic Origin: 38
3.15. Child’s right and surrogacy 39
3.16. Brief Analysis of ICMR Guidelines, 2005 39
3.17. The Assisted Reproductive Technology (Regulation) Bill, 2008 40
3.17.1. Surrogate Mother 41
3.17.2. Commissioning Parents 42
3.17.3. Surrogacy Agreement 43
3.17.4. Legal Parentage 44
3.17.5. Arrangement of Guardians by Foreign Commissioning Parents 45
3.18. Surrogate Mother 45
3.18.1. Appointing Parents 47
3.18.2. Outside Commissioning Parents: 47
3.18.3. Surrogate Child: 48
3.19. Brief Study of Draft Assisted Reproductive Technology Bill, 2014 49
B. CRITICAL STUDY OF SURROGACY REGULATION BILL, 2016:.............................51
3.1. IMPORTANT FEATURES OF THE BILL 51
C. 228TH LAW COMMISSION REPORT:..............................................................................54
CHAPTER IV..........................................................................................................................57
PROBLEMS, CHALLENGES, ETHICAL AND LEGAL ISSUES 57
4.1 Surrogacy Contract: Meaning and Definition: 58
4.2 Essentials of surrogacy contract 59
4.2.1 The Parties Must be Competent to Contract:-.........................................................59
4.2.2 The Object is Lawful...............................................................................................60
4.2.3 There is lawful consideration:..................................................................................60
4.2.4 The consent is free:..................................................................................................61
4.3 Enforceability of Surrogacy Contracts: 62
4.3.1 Co modification of Motherhood:.............................................................................63
4.3.2 Potential for Economic Exploitation:......................................................................63

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 4.3.3 Trafficking in Women and Children:.......................................................................64
4.3.4 Slavery and Violation of Human Dignity:...............................................................65
4.3.5 Immoral and Opposed to Public Policy:..................................................................65
4.4. Breach of Surrogacy Contracts and its Remedies: 66
4.4.1 Breach Prior to Artificial Insemination or Implantation of Embryo:......................67
4.4.2 Breach after the Artificial Insemination or Implantation of Embryo:.....................69
4.4.3 Breach after Birth:...................................................................................................71
4.5 Legal and Ethical Discussion on Surrogacy: 73
CHAPTER V.....................................................................................................................................71
5.1 Comparative Global Studies on Surrogacy: 75
5.2 Surrogacy: Legal Responses in Foreign Countries: 75
5.2.1 UNITED KINGDOM: 76
5.2.2 Virginia Surrogacy Law:.........................................................................................78
5.2.3 California Surrogacy Law:.......................................................................................79
5.2.4 Australian Surrogacy Law:......................................................................................81
5.2.5 SURROGACY LAW IN INDIA:............................................................................83
5.3. INDIAN COUNCIL FOR MEDICAL RESEARCH, 2005 GUIDELINES: 85
CHAPTER VI..........................................................................................................................87
Judicial Response: As Global Perspective 87
6.1. United Kingdom 87
6.2. Australia 91
6.3. United States of America 94
6.4. France 97
6.5. Italy 101
6.6. India 103
CHAPTER VII.......................................................................................................................112
CONCLUSION AND SUGGESTION 112
7.1 CONCLUSION 112
7.2 Suggestion 114
i) General Suggestion;....................................................................................................114
ii) Suggestion in relation to surrogate mother................................................................114
iii) Suggestions in Relation to Intended Parents.............................................................115
iv) Suggestions Concerning Surrogacy Contracts.........................................................115

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v) Suggestions in relation to Surrogate Child:................................................................116

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 CHAPTER I
INTRODUCTION
1.1 Meaning of Surrogacy:

According to Black’s Law Dictionary, the word ‘surrogate’ has its origin within

the Latin word ‘surrogates’, that means a substitution or replacement, i.e., an
individual appointed to act within the place of another. The term ‘surrogate mother’ or
‘surrogate’ is sometimes applied to the girl World Health Organization carries and delivers a
baby on behalf of another couple. it's thought-about as a ‘blessing’ and ‘miracle of science’.

Surrogacy may be a 'plan' within which a woman consents to a physiological

condition, accomplished through helped fertile innovation, within which neither of the
gametes have an area along with her or her husband, with the aim of conveyance of title it to
term and giving over the tyke to the person(s) for whom she goes regarding as surrogate. The
surrogate may be a woman United Nations agency consents to possess Associate in Nursing
inchoate organism created from the spermatozoon of a person United Nations agency is not
her spouse, and therefore the gametocyte for one more woman embedded in her uterus to
convey the physiological condition to term and convey the tyke to its natural parent(s). In
restorative speech, the term 'surrogacy' implies utilizing of a substitute mother within the
place of the characteristic mother. The mother bears a child for one more woman, either from
her own explicit egg, whereby the tactic is named 'straight or third surrogacy' or from the
implantation in her uterus of a ready foetus from another woman, whereby the strategy is
named 'gestational/full/have/IVF surrogacy'.

In halfway or normal surrogacy, otherwise called conventional surrogacy, the

dispatching mother has no part to play. The surrogate mother gives her own particular egg,
which is prepared by manual sperm injection, conveys the embryo and conceives an
offspring, to a youngster for someone else. She gestates the kid which makes her the organic
or hereditary mother of the youngster. The youngster might be imagined by means of manual
sperm injection utilizing new or solidified sperm or impregnated through IUI (intra-uterine
insemination), or ICI (intra-cervical insemination) performed at a wellbeing centre. The
youngster that out comes is hereditarily identified with the surrogate and to the male
accomplice however not to the appointing female accomplice. The collected tyke shares the
hereditary make-up of the surrogate mother and the dispatching father. Ladies who have

1
useless or non-useful ovaries because of untimely menopause may turn to the choice of
getting the egg by gift. A lady, who is in danger of passing on a hereditary sickness to her
posterity, may decide on customary surrogacy. Ladies who are experiencing restorative
issues, for example, diabetes, heart and kidney illnesses and whose pregnancy might be
hazardous may choose conventional surrogacy, if their long haul prospects for wellbeing are
generally great. Notwithstanding, conventional surrogacy is given a business edge when the
surrogate mother is embedded with a prepared egg, which may be completely hereditarily
identified with the meaning guardians or just to one of them and conveys the child to full
term, all in return for cash.

Then again, in physiological condition or mixture or IVF surrogacy, the juvenile has
the hereditary mix of the charging guardians. The 'hereditary mother' provides the egg that is
treated by in-vitro preparation and another woman i.e., mother conveys the baby in her uterus
and brings forth the juvenile. During this approach, during this strategy Associate in Nursing
early organism is formed by the procedure of IVF/test tube in an exceedingly centre, that is
finished by connection the qualities of each the appointing guardians, that is then embedded
into the uterus of the mother. this can be the place a woman, i.e., the mother, conveys a
physiological condition created by the egg and spermatozoon of hereditary couple. once the
introduction of the tyke, the physiological condition bearer or the mother hands over the tyke
to the organic guardians or received guardians to be raised by them and relegates her parental
rights to them. Here, the bearer is not hereditarily known with the juvenile. With
physiological condition surrogate parentage, the dispatching couple is that the hereditary
guardians of the juvenile. Physiological condition surrogacy makes another circumstance
during which a tyke has not one, however rather 2 organic moms - one hereditary and
therefore the different physiological condition. .

There is another grouping of surrogacy game plans which might either be 'Business' or
'Benevolent'. In 'Business Surrogacy', the physiological condition bearer/surrogate mother is
paid separated from therapeutic and different wise prices, to convey a tyke to development in
her uterus. this {can be} usually turned to by the upper pay sleeveless couples WHO can
manage the price of the price related to the surrogacy game arrange and might end their
fantasies of attending to be guardians. The surrogate is not just repaid however additionally
paid a full over her surrogacy connected prices as obtain surrogacy administrations gave by
her. Business surrogacy is really a sophisticated follow rather than typical surrogacy.
Barrenness of each of the accomplices and therefore the wish for child|a child} has driven

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them to urge for exchange strategies for kid bearing. The advancement of helped regenerative
innovation has created it practicable for unfruitful couples to possess a child to be planned
through a mother to whom the child is not hereditarily connected. this method is rehearsed on
a considerable scale in an exceedingly few nations as well as India as a results of high
universal request and promptly accessible poor surrogates, simple the treatment, absence of
education, absence of energy controlled by India girls, absence of direction of motor-assisted
fruitful Technology centres and higher flexible laws. Centres square measure likewise
completing additional cantered not merely in evaluating, however rather within the acquiring
and maintenance of Indian females as surrogates. The articulation 'wombs for lease' was
instituted once it aroused practicable for treated eggs to be embedded and, therefore, develop
to a point in time child in any uterus, here and there even with the help of cross-outskirt
surrogacy moms. This could likewise be named as 'outsourced pregnancy' or 'infant ranches'.

In 'Philanthropic Surrogacy' game arrange, unselfish considerations square measure

appeared for the welfare of others by the mother and she or he gets no fund reward for her
physiological condition or for the surrender of the child, albeit usually all prices known with
physiological condition and birth square measure paid by the expected dispatching guardians.
The transporter gets no pay aside from therapeutic and different wise prices for transference
and transference the juvenile. This can be by and enormous done by a companion or a close-
by relative WHO is paid simply the essential connected prices and there's no reward to the
surrogate.

Under the surrogate kid rearing, as of currently examined, the mother will either be a
'hereditary' mother since it's her own egg that's treated and she or he, on these lines, has the
hereditary reference to the juvenile or she will be a 'gestational' mother since she conveys the
tyke to the total term. Here the surrogate has no hereditary reference to the child. this type of
surrogacy happens once the expected mother's as of currently ready egg is embedded into the
uterus of the mother. Moreover, there square measure a number of different late advances in
fertile innovation, e.g., AI by Donor (AID) whereby the girl lands up pregnant while not
intercourse through manual spermatozoon injection.

Fruitlessness facilities/focuses in India, as an example, that of Dr. Singh tube Baby Centre
found out in 2005 within the town of Meerut in state is genuinely Associate in Nursing child
creating industrial facility. It includes one in every of the women from their info of planned
surrogates and organizes gatherings with the barren couples. varied a times, the couples

3
searching for surrogacy square measure remote couples and that they square measure helped
by such form of fruitlessness centres in their endeavour to be guardians. These facilities
likewise mastermind benefactors of gametes once needed, decide the money enclosed,
organize legitimate facilitate to figure out the terms of the surrogate assertion and therefore
the benefits to each one in every of the gatherings, supervise the physiological condition of
the mother, screen her amid the incubation time-frame, effectively convey the juvenile, effort
of birth testaments from the civil organization and therefore the last customs to ensure that
the kid is given over to the proposing guardians. Thus, a surrogate gets the due mixture of
money for transference the embryo to term. She is formed accountable of any hurt distributed
on the baby on the off likelihood that she does not satisfy her obligations and duties
deliberately or carelessly. A surrogate have to be compelled to think about the doctor's
therapeutic exhortation as well as prescription, sustenance and no matter different lead that is
damaging for the offspring. She to boot resolves to administer up the new-conceived child to
expected guardians once the kid is planned. Once the surrogate is pregnant, the
successfulness of the child can depend upon her conduct and particularly whether or not she
smokes, beverages or takes totally different medications. The dispatching guardians can
would like the surrogate to halt from these exercises. The forthcoming surrogate should
proclaim that she will not utilize sedates intravenously, expertise intromission with the
exception of blood got through Associate in Nursing ensured blood donation centre, and
prevent from sex amid the physiological condition. A possible surrogate ought to likewise be
normally nice mental and physical successfulness and don't have any best-known vital
therapeutic or social variables, as an example, stoutness, overwhelming drinking or smoking.

At the purpose once guardians cannot imagine a teenager naturally, surrogacy has
come back as a leading deliverer and this has been created clear through the discourse within
the light-weight of noteworthy legal decisions on surrogacy, particularly In Re Baby Melissa
and Johnson v. Calvert cases. In Re Baby Melissa case, the New Jersey Supreme Court, but
enabled care to the charging guardians within the "best enthusiasm of the youngster", reached
the conclusion that surrogacy contract is against open arrangement. nonetheless, it should be
detected that the US, surrogacy laws square measure numerous in varied states.

On the off likelihood that the 1988 Baby Melissa case within the US unnatural varied
to begin thinking critically, at that time that year likewise discovered Australia fighting with
social group emissions over the Kirkman Sisters' case in Victoria. Linda Kirkman consented
to gestate the hereditary offspring of her additional seasoned sister Maggie. the kid young

4
woman, referred to as Alice, was given over to Maggie and her wife throughout
accouchement. This started a lot of cluster and lawful level headed discussion and shortly
Australian States endeavored to settle the lawful entanglements in surrogacy. By and by, in
Australia business surrogacy is unlawful, contracts in association to surrogacy arrange square
measure unenforceable and any instalment for requesting a surrogacy course of action is
illicit.

In Johnson v. Calvert, Mark, Crispina Associate in Nursingd Pakistani monetary unit

Johnson marked an agreement giving that a vertebrate created by the spermatozoon of Mark
and therefore the egg of Crispina would be embedded within the uterus of Pakistani monetary
unit and therefore the tyke planned would be thought-about as Mark and Crispina's juvenile,
to that Pakistani monetary unit concurred that she would surrender each parental ideal to the
tyke for Mark and Crispina. Consequently, Mark and Crispina would pay Pakistani monetary
unit $10,000 in an exceedingly progression of parts, the last to be paid a month and a 0.5
once the introduction of the tyke. Check and Crispina were likewise to obtain a $ two,00,000
life coverage strategy on Anna's life. Be that because it might, lamentably, relations
disintegrated between the 2 sides. Stamp discovered that Pakistani monetary unit had not
undraped that she had endured a number of still births and unnatural birth cycles. Pakistani
monetary unit felt Mark and Crispina failed to do what is necessary to urge the desired
protection arrangement. She likewise felt deserted amid a starting of untimely add Gregorian
calendar month. In July, 1990, Pakistani monetary unit sent Mark and Crispina a letter
requesting modify of the instalments as an alternative she would decline to surrender the
tyke. Check and Crispina recorded a claim, searching for a revelation that they were the
lawful guardians of the unhatched tyke. Pakistani monetary unit likewise documented her
own suit to be declared the mother of the tyke.

The juvenile was planned on Gregorian calendar month nineteen, 1990, and blood
tests were gotten from each Pakistani monetary unit and therefore the tyke for investigation.
The biopsy comes regarding barred Pakistani monetary unit because the hereditary mother.
The gatherings consented to a court organize furnishing that the juvenile would stick with
Mark and Crispina on a ephemeral premise with visits by Pakistani monetary unit. The
tribunal set that Mark and Crispina were kid's "hereditary, organic and customary father and
mother" which Pakistani monetary unit had no parental rights to the tyke, which the
surrogacy contract was lawful and enforceable against Pakistani monetary unit. The tribunal

5
to boot terminated the request sanctionative visits to juvenile by Pakistani monetary unit. The
Court of charm and Supreme Court of American state confirmed the selection of the tribunal.

Today, India's quickly extending business surrogacy business is dependent on

"gestational conveying" plans, during which the mother is not hereditarily known with the
child she conveys. Or maybe, the spermatozoon of the expected father prepares either the egg
cell of a contributor or the egg cell of the projected mother and therefore the ulterior early
organism is embedded within the physiological condition bearer's uterus. this kind of
surrogacy is formed conceivable through In-Vitro Fertilization innovation (IVF), wherever a
developing life is formed outside of the uterus in an exceedingly tube in an exceedingly
center. before the presentation of IVF strategies in 1987, nonetheless, surrogates were
fertilized with the spermatozoon of the planned father through manual spermatozoon
injection. During this course of action, referred to as "conventional surrogacy," surrogate
moms contributed their own explicit egg cell and bore a hereditary association with the tyke
they bore. During this specific socio-social setting, any outsider variety of generation expects
individuals to re-conceptualize multiplication, propagation, association and family.

Business surrogacy, that has been named "regenerative outsourcing" and "lease a-
womb" by acknowledge accord, provides a fashionable territory to wrangle regarding on the
grounds that it incites one more unsettling influence of the visualized open/private circle
separate. Business surrogacy, just like business appropriation, premature birth, or sex work,
places things that square measure frequently consigned to the non-public circle
(multiplication, the maternal body, the refined body) into individuals normally circle (the
businessperson advertise). At the purpose once a part of multiplication turns into a business
profit, problems with real misuse and monetary open door square measure instantly raised
doubt regarding and once the administration crosses national outskirts, as physiological
condition surrogacy has within the most up-to-date decade, with exchanges amongst girls and
teams of assorted societies and limitlessly unequal social and financial statuses, inquiries of
assent and chance square measure considerably to boot mixed-up.

The surrogacy could be a knotty issue in the maximum amount because it may break
down the relations between the surrogate and her wife. Thus, the assent of the domestic
partner likewise provides off a sway of being basic before a mother goes into surrogacy game
arrange. A domestic partner will keep his companion from experiencing a surrogacy course

6
of action. A surrogate is not a young woman or a widow woman. Within the event that she is
hitched, her companion features a few rights and obligations

The present little bit of work have the attendant targets:

i. To examine the problems distinctive with surrogacy.

ii. To portray the elements of surrogacy.
iii. To suit surrogacy with social standards.
iv. To depict the surrogate youngster's correct.
v. To examination the holes forgot in affiliation to this standards planned by ICMR and
Law Commission of Bharat
vi. To supply account the difficulty of commercialisation of surrogacy

1.3 Scope of Study:

In coming up with for managing the higher than thesis addresses, the concomitant viable
components of national and universal surrogacy courses of action are going to be tended to:

i. the size and also the example of the difficulty

ii. Analysis of existing non-public worldwide law problems rising in helpful instances of
universal surrogacy game plans.
iii. Examination of law on surrogacy through legal decisions in numerous nations.

1.4 Research Methodology:

Strategy has been utilized as a part of this paper. Without any law on surrogacy in India,
the proportion decidendi of accessible cases is crystallized as a doctrinal device of the
exploration. This technique has included performing logical research using essential and
optional material, for example, library, books, diaries, law commission reports, report of
Indian Council of Medical Research, web and so on. The investigation has directed
appropriate examination of accessible writing and information so the right position regarding
the matter might be drawn.

Hypotheses:
In the beginning of this dissertation, I have framed provisional hypotheses and a mock
trial or model study was made. After deep analysis of results, following hypotheses are
framed. The result of this study will either prove or disprove the following hypotheses:

7
 i. Surrogacy is a problem in the modern era, legal and commercial set up in India.
ii. There is need of any legislation for the solution of problem of surrogate child.
iii. There is a need of a draft model surrogacy agreement between all the parties for
surrogacy arrangement.

1.6 Limitation of Study:

The scope of the current study within the 1st try is to research the current situation of
surrogacy at national similarly as international level. On the idea of the aim of the treatise, the
scope of the current study is to see the weather concerned within the drawback associated
with surrogacy arrangement recognized by the society or by the nations. any confirmation of
identical is completed within the light-weight of international norms. The treatise deals with
attainable findings of the very fact. These findings are supposed solely as a guide and can in
no manner limit the findings of any national and alignment. because the projected study is
time sure study and any surrogacy is said with copy that is creature’s boon for all, hence,
solely legal problems connected with right, health right, generative right and industrial
implications on it square measure basic specifically with relevance the Indian system. The
treatise is within the style of model study covering explicit cities of Asian country having a
mix of multi-tasked, multi-ethnic, multi-lingual, multi-class and multi-cultural society. The
scope of the treatise is for world profit whereas space of the study has the limitation of your
time, length, expenditure concerned within the treatise

8
 CHAPTER II

SURROGACY: MEANING DEFINITION

2.1 Meaning
The word surrogacy means to substitute. Surrogacy is taken from the Latin word
“surrogatus” past participle “surrogare” meaning thereby a person appointed to act in the
place of other. According to the Black’s Law Dictionary, surrogacy means the process of
carrying and delivering a child for another person. The New Encyclopedia Britannica defines
‘surrogate motherhood’ as the practice in which a woman bears a child for a couple unable to
produce children in the usual way. The Report of the Committee of Inquiry into Human
Fertilization and Embryology or the Warnock Report (1984) defines surrogacy as the practice
whereby one woman carries a child for another with the intention that the child should be
handed over after birth. Thus a surrogate mother is a woman who bears a child on behalf of
another woman, either from her own egg or from the implantation in her womb of a fertilized
egg from other woman.

Surrogacy is generally defined as an arrangement in which the surrogate or birth

mother agrees to bear a child and permanently hand over the responsibility for the rearing of
that child to another person or couple, referred to as the intending parents 1. In most of the
surrogacy arrangements the intended parents contribute the genetic material and the child is
carried by the surrogate2. In certain cases the surrogate woman may contribute the genetic
material3 and in very rare situations both the egg and sperm may be taken from donors and
the resultant embryo is implanted in the surrogate4.

2.2 Definition
An initial difficulty in addressing surrogate motherhood arrangements is that they do
not Conform to predictable patterns of behavior, and no legal language exists to describe the
Human and social relationships that they create5. The definition of surrogacy is presented by
1
Catherine Brown, “The Queensland Investigation into the Decriminalization of Altruistic Surrogacy”, 29 (2)
Queensland Lawyer, 78-83 (2008).
2
Such type of surrogacy arrangements are known as Gestational Surrogacy or Full Surrogacy. See, Peter
R.Brinsden, “Gestational Surrogacy”, Human Reproduction Update, Vol.9, No.5, 483 (2003).
3
Such type of surrogacy arrangements known as Traditional Surrogacy or Partial Surrogacy. See generally,
Paula M. Barbaruolo, “The Public Policy Considerations of Surrogate Motherhood Contracts: An Analysis of
Three Jurisdictions”, 3 Alb. L.J. Sci. & Tech. 39 (1993), at p.41.
4
Andrew Bainham & Martin Richards, “What is a Parent?: A Socio-Legal Analysis”, Hart Publishing, Oxford,
U.K. (1999), p.125
5
Bernard Dickens, Professor of Law at the University of Toronto

9
the American Law Reports as “…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” 6 . The Assisted Reproductive
Technologies (Regulation) Bill, 2010 defines “surrogacy” as an agreement in which a woman
agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of
the gametes belong to her or her husband, with the intent to carry it and hand over the child to
the person or persons for whom she is acting as a surrogate 7. It defines “surrogate mother” as
a woman who is a citizen of India and is resident in India, who agrees to have an embryo
generated from the sperm of a man who is not her husband and the oocyte of another woman,
implanted in her to carry the pregnancy to feasibility and deliver the child to the
couple/individual that had asked for surrogacy8. But assisted reproductive technology
(regulation) bill was again drafted presented for enactment which reads surrogacy under
section 2(zq) of the assisted reproductive technology (regulation) bill as an arrangement in
which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in
which neither of the gametes belong to her or her husband, with the intention to carry it and
hand over the child to the commissioning couple for whom she is acting as a surrogate. The
New South Wales Law Reform “…an arrangement whereby a woman agrees to become
pregnant and to bear a child for another person or persons to whom she will transfer custody
at or shortly after birth.” Surrogacy under section 2(zb) of The Surrogacy (Regulation) Bill,
2016 defined as a practice whereby one woman bears and gives birth to a child for an
intending couple with the intention of handing over such child to the intending couple after
the birth.

Surrogacy is an ‘arrangement’ in which a woman agrees to a pregnancy, achieved

through assisted reproductive technology, in which neither of the gametes belong to her or
her husband, with the intent to carry it to term and handing over the child to the person(s) for
whom she is acting as surrogate. The surrogate is a woman who agrees to have an embryo
generated from the sperm of a man who is not her husband, and the oocyte for another
woman entrenched in her womb to carry the pregnancy to full term and deliver the child to its
biological parent(s). In medical parlance, the term ‘surrogacy’ means using of a substitute

6
American Law Reports “Validity and Construction of Surrogate Parenting Agreement” 77 A.L.R 4th 70
(1989).
7
Sec. 2(aa) of Draft bill “THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) BILL 2010”.
8
SEC.2(bb) of Draft bill “THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) BILL 2010”.

10
mother in the place of the natural mother. The surrogate mother bears a child on behalf of
another woman, either from her own egg, wherein the procedure is called ‘straight or partial
surrogacy’ or from the implantation in her womb of a fertilized embryo from another woman,
wherein the procedure is called ‘gestational/full/host/IVF surrogacy’.9

In partial or natural surrogacy, also known as traditional surrogacy, the

commissioning mother has no role to play. The surrogate mother provides her own egg,
which is fertilized by artificial insemination, carries the foetus and gives birth, to a child for
another person. She gestates the child which makes her the biological or genetic mother of
the child. The child may be conceived via artificial insemination using fresh or
frozen sperm or impregnated via intra-uterine insemination, or intra-cervical insemination
performed at a health clinic. The child that results is genetically connected to the surrogate
and to the male partner but not to the commissioning female partner. The harvested child
shares the genetic make-up of the surrogate mother and the commissioning father. Women
who have dysfunctional or non-functional ovaries due to premature menopause may resort to
the option of receiving the egg by donation. A woman, who is at risk of passing on a genetic
disease to her offspring, may opt for traditional surrogacy. Women who are suffering from
medical problems such as diabetes, heart and kidney diseases and whose pregnancy may be
life threatening, may select traditional surrogacy, if their long term prospects for health are
otherwise good.

2.3 The concept of surrogate motherhood

The advent of science and technology has brought a great change in the life of human
beings. In the past four decades, there has been a spectacular change in the field of
reproductive technologies. Reproductive sciences have come up with techniques like donor
insemination, in vitro fertilization and embryo transfer methods which have completely
revolutionized the reproductive environment. These techniques have infused hope into many
infertile couples, who long to have a child of their own 10. However, complications have also
arisen once these methods were combined with surrogacy arrangements. Despite
controversial and ethical issues arising out of it, surrogacy has been gaining popularity all
over the world, especially in the west where adoption is not easy to come by. Research has
stated that one-in-six couples have problems with infertility. Some use medical treatments to
overcome this situation, for some however, no help is available. It is these couples where the
9
Rao, Mamta, Surrogacy: The Ethico-Legal Challenge, January 2012, Vol. XIII, Issue-1, pp.12-14.
10
Dr. Chintamani Rout, “Surrogacy- A Conceptual and Legal Analysis in 21st Century” Orient Journal of Law
and Social Sciences 26 (November, 2012).

11
woman has undergone a hysterectomy or suffered multiple miscarriages or born without a
womb where surrogacy comes to the rescue 11. Surrogate mother, she is the lady had agreed to
conceive the baby child of other couple, into her womb for the natural period of nine months,
mostly with the charged fees. This carrying of baby is done mostly by the process of artificial
insemination or by carrying surgically implanted fertilized egg of the other woman. In other
words, the lady who accepts the child in the natural birth process is affirmed as a “Surrogate
Mother” only when she does this for the other couple and carries the child in her womb. After
finishing the natural birth giving process of this child is delivered back to the original and
legal couple. The Assisted Reproductive Technology (Regulation)Bill 2014 reads under
section 2(zr) Surrogate Mother means a woman who is a citizen of India and is resident of
India, who agrees to have an embryo generated from the sperm of a man who is not her
husband and the oocyte of another woman, implanted in her to carry the pregnancy to
viability and deliver the child to the commissioning couple that had asked for surrogacy.

2.4 Types of Surrogacy

There are two types of Surrogacy. The fist one is Traditional Surrogacy (also known
as straight method) and the second is Gestational Surrogacy (also known as host method).

2.4.1 Traditional method

The surrogate is pregnant with her own biological child, but this child was conceived
with the intention of relinquishing the child to be raised by others; by the biological father
and possibly his spouse or partner, either male or female. The child may be conceived via
home artificial insemination using fresh or frozen sperm or impregnated via Intra Uterine
Insemination, or Intra Cervical Insemination which is performed at a fertility clinic.

2.4.2 Gestational surrogacy

The surrogate becomes pregnant via embryo transfer with a child of which she is not
the biological mother. She may have made an arrangement to relinquish it to the biological
mother or father to rise, or to a parent who is themselves unrelated to the child (e. g. because
the child was conceived using egg donation, germ donation or is the result of a donated
embryo). The surrogate mother may be called the gestational carrier. The gestational
surrogacy involves the following categories of women: -

i. Women with congenital absence of the uterus,

11
Irvi H. Thakkar, “Is Surrogate Motherhood Moral?” Cri LJ 88 (2011).

12
 ii. Women who have had a hysterectomy for hemorrhage, but they still have
functional ovaries,
iii. c) Women who have suffered repeated miscarriages and for whom the chance
of ever carrying a baby to term is too remote, and
iv. Women who repeatedly fail to implant normal healthy embryos in treatment
by IVF.

There is another classification of surrogacy arrangements which can either be

‘Altruistic’ or ‘Commercial’ Surrogacy.

2.4.3 Altruistic Surrogacy

In ‘Altruistic Surrogacy’ arrangement, unselfish concerns are shown for the welfare of
others by the surrogate mother and she receives no financial reward for her pregnancy or for
the relinquishment of the child, although usually all expenses related to pregnancy and birth
are paid by the intended commissioning parents. The carrier receives no compensation
besides medical and other reasonable expenses for carrying and delivering the child. This is
generally done by a friend or a close relative 12 who is paid only the necessary related
expenses and there is no reward to the surrogate.

2.4.4 Commercial surrogacy

In commercial surrogacy surrogate mother is paid apart from medical and other
reasonable expenses, to carry a child to maturity in her womb. This is usually resorted by the
higher income infertile couples who can afford the cost involved in the surrogacy
arrangement and can complete their dreams of becoming parents. The surrogate is not only
reimbursed but also paid a sum above her surrogacy related expenses as compensation for
surrogacy services provided by her. Commercial surrogacy is indeed a modern practice as
opposed to traditional surrogacy. Infertility of either of the partners and the desire for a child
has led them to fetch for alternate ways of child bearing. The development of assisted
reproductive technology has made it possible for childless couples to have a child to be born
through a surrogate mother to whom the child is not genetically related. This procedure is
practiced on a large scale in several countries including India because of high international
demand and readily available poor surrogates, low cost of the treatment, illiteracy, lack of
power possessed by India women, lack of regulation of Assisted Reproductive Technology

12
In September 2012, Casey gave birth to her grandson when her daughter struggled with infertility. Her
daughter’s egg and her son-in-law’s sperm were used in in vitro fertilization procedure, making the couple
biological parents of the surrogate child born through his grandmother;

13
clinics and better flexible laws. Clinics are also becoming more competitive not just in
pricing, but in the hiring and retention of Indian females as surrogates. The expression
‘wombs for rent’ was coined when it became possible for fertilized eggs to be implanted and,
thus, grow to a full term baby in any womb, sometimes even with the help of cross-border
surrogacy mothers. This may also be termed as ‘outsourced pregnancy’ or ‘baby farms’.

14
 CHAPTER -III

LEGAL FRAMEWORK ON SURROGACY

A. Legal rights of surrogate child:

“Currently, the biggest risk to children in the surrogacy context comes not from the
actions of either set of parents but from the uncertain status of the law, which.., can lead to
the child being subjected to years of litigation to determine who will be considered to be his
or her legal parents”

Lori B. Andrews13.

Children are precious to every country and are the future citizens and pillars of the
nation. In every society children are considered as necessary and desirable. Though there is
no duty to reproduce, the desire to do so is strong in human beings due to religious, cultural,
social, family, personal and legal motives2. The desire to beget and rear a child can be so
awesome as to cause people to go to great lengths to achieve such a goal 14. Thus in cases
where the couples or individuals are unable to have a child of their own through natural
biological process, they may take the help of assisted reproductive technologies for begetting
a child. Surrogacy has emerged as the best option for begetting a child, and every year, more
and more children are born to surrogate mothers. This increased use of surrogacy has
received worldwide attention in recent years and has generated huge debate regarding the
protection of rights and welfare of the various stakeholders involved in surrogacy. The
diverse issues concerning the stake holders like surrogate mother and intended parents as well
as issues relating to surrogacy contract have been discussed in previous chapters 15. In any
discussion on surrogacy, the issues that affect the surrogate children are also equally
important and controversial and require adequate attention. Among the various stakeholders
involved in surrogacy contracts, the child is the most vulnerable and may be exposed to the
hard impacts of surrogacy. It is generally argued that the ultimate victim of surrogacy
arrangements is the child16. This is because in a surrogacy the creation of a child no longer
occurs within the traditional formula of one biological unit i.e. the father as the sperm donor;

13
Lori B. Andrews, ―Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood‖, 81
Virginia Law Review, 2343 (1995), at p.2358. 2 Supra Chapter I.
14
See, Barbara Veile, ―Surrogate Motherhood: The Need for Social Acceptance‖, 13 Ohio N.U. L. Rev. 517
(1986), at pp. 523-524.
15
Supra Chapters IV, V & VI.
16
Adrew Kimbrell, ―The Case against the Commercialization of Childbearing‖, 24 Willamette Law Review
1035 (1988), at p.1047.

15
the mother as the egg donor and provider of womb; and the child being the genetic offspring
of the two. In a surrogacy the creation of child involves the presence of a third party i.e. the
surrogate mother and in certain cases a stranger egg donor, or sperm donor 17. Due to the
involvement of a third party in the creation of a child, surrogacy has raised concerns about
the protection of the rights and interests of the surrogate child.

The surrogate child is not a party to the surrogacy contract, but is the outcome
of such a contract and due to the inherent vulnerability of a child, it becomes imperative for
the state to interfere in surrogacy agreements and procedure for ensuring protection of rights
and welfare of the surrogate child18. Many countries of the world have adopted legislations
for the protection of the surrogate child. In India there is no specific legislation till now for
dealing with the protection of rights of surrogate child. India being a world-capital for
surrogacy process, the absence of a legal framework would adversely affect the interests of a
surrogate child.

Surrogacy is a practice that has gained prominence in the past few years in the
country. The child born of surrogacy has the same rights as a natural child. Yet there are
many rights which are disputed. This child also called the three parents child. Here am trying
to discuss the various rights of the child. Surrogacy bill 2016 define surrogacy bill as follows-
“surrogacy" means a practice whereby one woman bears and gives birth to a child for an
intending couple with the intention of handing over such child to the intending couple after
the birth. But this bill does not define the surrogate child. Except this, the issue of surrogacy
can cause great legal and ethical issues, debate within the community. However the
increasing demand for assisted reproductive treatment and a decline in the number of children
available for adoption, it is possible that more people will start to consider surrogacy as an
alternative

All the Bills drafted in India have been grossly insufficient to safeguard the rights of
the most important aspect or in other words the cause of all these surrogacy arrangements i.e.
the child born out of these arrangements. Whether the dispute is between the intended parents
and surrogate mother or between the intended parents themselves has his/her interests least

17
See generally, Victoria L. Fergus, ―An Interpretation of Ohio Law on Maternal Status in Gestational
Surrogacy Disputes: Belsito V. Clark, 644 N.E.2D 760 (Ohio C.P. Summit County 1994)‖, 21 University of
Dayton Law Review, (Fall 1995), at pp. 229-230.
18
The State can act on the basis of the doctrine parens patriae. This doctrine grants the inherent power and
authority to the state to protect persons who are legally unable to act on their own. See, <http://legal-
dictionary.thefreedictionary.com/Parens+Patriae> Visited on 20/01/2018.

16
addressed. A perusal of the Indian Council of Medical Research Guidelines and the Assisted
Reproductive Technology Bill brings out that need to be filled well in time to ensure that
children born through this process have their rights secured. The surrogacy agreement itself is
the starting point of a whole lot of controversy .If there is an anonymous oocyte or semen
donor involved and the child is born with a genetically passed on congenital disease, the child
even before he/she realizes has a battle of his/her own to deal with when his/her right to
health comes directly in conflict with the right to privacy of the anonymous donor. Enshrined
in the Convention on the Rights of the Child, this guarantees the right to dignity, protection
from sale or trafficking, registration of his or her birth and to know his or her parents. A child
should neither be thought of as a vegetable nor a puppy able to be acquired as the result of a
commercial transaction. This violation of the dignity of the child says something about those
who are content to return to historic understandings of a child as the property of its parents or,
more correctly, its father.

The Indian Medical Council of India Guidelines provides that the child born through
surrogacy must be adopted by the intended parents. Though the Guidelines attempt to provide
some sort of stability, they fail to take into account the social milieu and the issue of people
other than Hindus being able to adopt. Under the Indian legal system, only Hindus are
entitled to adopt. People from other religions may adopt under the Guardians and Wards Act,
1890 or under the recent Juvenile Justice (Care and Protection of Children) Act, 2000.
However, provisions of these legislations too cannot be stretched to accommodate adoption
of children born through surrogacy. When a child who is born through such an arrangement
grows up, additional issues could make their presence felt such as whom the child can inherit
property from. Hence we need a Uniform legislation safeguarding the rights of the child born
out of these surrogacy arrangements.

The legislation intended here should be able to take care of all the complex situations
such as in Baby Manji’s case where the intended parents separate during the term of
pregnancy which is being carried through by the surrogate mother as in, who shall the child
go to when he/she is born? Or as in Baby Gammy’s case where the child is born with a
deformity and the intended parents are not ready to take such a child as in? The resultant
legislation should consider the best interests of the child.

17
3.1. Legal Issues:
No Indian law prohibits Surrogacy .So surrogacy in India is legal .The surrogacy
agreement under the Indian contract Act 1872 is not enforceable because it is against the
public policy .By drafting the Assisted Reproductive Technology (Regulation) Bill 2010 the
surrogacy treatment is enforceable but this bill is still pending. If a surrogate child is born in
India and the intended parents is the citizen of the country other than India then the legal
issue arises.

3.2. Inheritance Right of the Child

The legal issue relating to surrogate mothering in personal law is law in inheritance
rights of the parties to the surrogate mothering agreement .this issue may arise innumerable
questions. Firstly, is the surrogate child entitled to succeed the property of the surrogate
mother dying intestate either at delivery or thereafter? Secondly, can the surrogate child
inherit the property of the surrogate’s husband who dies intestate during surrogate’s
pregnancy? Thirdly, can the surrogate mother claim inheritance rights against the properties
of her surrogate child who dies intestate after some years? Fourthly, is the surrogate child to
inherit the properties of both or either of the intended parents died intestate as a child born at
the time of their death or as a child begotten in the surrogate’s womb at the time of death of
intended of intended parents but born after their death? And fifthly, can the surrogate child
acquire coparcenary interest in the ancestral property of the intended parents or surrogate
mother’s husband, in case they are Hindus?

The simple question “whose legal heir the surrogate child is? May answer this entire
question. The general principle of inheritance is that inheritance is closely linked with
legitimacy of heirs. Under all personal laws, legitimacy of a child is entirely based on
lawfulness of the wedlock between the child’s parents .However, a child and its mother are
always entitled to inherit their properties mutually as the question of legitimacy between the
child and its mother is not relevant for the purpose of inheritance.

Under the existing laws in India, the surrogate mother and her husband are the natural
and the legal parents of the surrogate child and the child is therefore the legal heir of the
surrogate mother and her husband provide the surrogate’s husband has consented for such
surrogate mothering agreement.

As a result ,the answer is affirmative in respect of the first three questions only .The
surrogate child has no inheritance right in the properties of intended parents .A complication

18
may also arise when the surrogate mother after delivery , as the natural guardian of the
surrogate child , claims the property of the intended father or mother dying intestate during
her pregnancy by which time the child could not have been given in adoption .her claim
would fail even when intended parents have any genetic linkage with the child as the child is
not adopted by the intended parents.

This position may prejudicially affect the interest of the child .surrogate mothering
should protect not only the rights of the parties to the agreement but also the rights of the
product i.e the surrogate child .It is therefore desirable that the surrogate child is deemed to
be the child of the intended parents from the moment the child is begotten for the purpose of
testamentary and intestate succession.

3.3. Surrogate Child’s Right of Maintenance19

Despite controversies over ethical aspects of surrogate motherhood, surrogacy has
become an increasingly popular method of reproductive technology. It is no exaggeration to
say that the modern world has already witnessed the development of an extensive
international surrogacy market20. This market although initially largely unnoticed ,has
recently attracted a great deal of interest by media .In spite of its expanding nature cross –
border surrogacy arrangement at a serious risk of exploitation and resulting in complex legal
problems in individual cases of cross-border surrogacy arrangements. This topic is in
principle an analysis and conceptual piece of work which explores how the relevant issues
could be dealt with under the new maintenance regime : The Hague Convention on the
International Recovery of child support and other forms of family maintenance 21 (The Hague
Maintenance convention22 ) and the protocol on the law applicable to maintenance
obligations(the protocol).Undeniably , a lot will depend on specific domestic substantive
rules on legal parenthood /maintenance which this topic ,however ,does not aim to cover .

3.4. Application of Convention to Cases Involving Surrogacy:

Prior to the substantive analysis, it is considered essential that the preliminary
question of the applicability of the new maintenance instrument to cases involving surrogacy

19
Recovery of maintenance in EU and worldwide(google book).author-katarina trimmings
20
The term market is used here to indicate that the vast majority of cross border surrogacy agreements are
entered into on a commercial basis ;the surrogate mother receives compensation for her reasonable pregnancy-
related expenses plus additional remuneration for her services .Nevertheless it must be acknowledged that there
are also cross border surrogacy cases where no remuneration or even compensation is involved .These cases
casually take place with the help of a family member or a close friend of the intended parents .
21
Hague Convention on The International Recovery of child support and other forms of family maintenance 23
November 2007 (Hague Convention Maintenance0
22
Protocol on the law applicable to maintenance obligations 23 November 2007 (protocol)

19
be addressed. The problem of surrogacy in the context of maintenance was not considered
during the negotiations of the new maintenance instrument and as a result there is no
reference to surrogacy in either the convention or the protocol. Nevertheless the core scope of
the convention includes maintenance obligations arising from a parent- child relationship
towards a person under the age of 21 years23 .So the key question is whether there is a parent-
child relationship between the creditor and the child .This will be subject to a preliminary
question on parentage which is not governed by the convention. 24 However central authorities
are required to provide assistance in establishing parentage where necessary for the recovery
of maintenance25 , and establishment of parentage is part of free legal assistance under
article15 of the convention .assistance on the problem of parentage can be sought under
article 6(2)(h) in relation to an application under article 10(1)(c) or as a request for a specific
measure under article 7. Article 7(1) expressly covers requests for specific measures under
article 6(2)(h) which includes requests for establishment of enforcement .

Especially article 19(2) states that - “if a decision does not relate solely to a
maintenance obligation, the effect of this topic is limited to the parts of the decision which
concern maintenance obligation. Consequently if decisions on maintenance also include a
decision on the establishment of parentage, the maintenance obligation can be recognised and
enforced independently from the question of parentage. The scope of the protocol in article
1(1) is even broader than the scope of the convention referring to a family relationship,
parentage…including a maintenance obligation in respect of a child regardless of the marital
status of the parents .Article 1(2) goes further and gives the protocol application to decision
on maintenance obligations even if the underlying referred to in article 1(1) does not exist.

The law applicable to the parentage is not governed by the protocol 26, given the
protocol’s silence, the explanatory report to the protocol recommends that state apply the
designated to govern the maintenance obligation also to the preliminary issue of the existence
of parentage27 .The report however, acknowledges that this solution is not binding on the
contracting states and that they may instead resolve the preliminary issue by applying the law
23
Hague Maintenance Convention art 2(1)(a)
24
More generally on the problem of preliminary question (alternative terminology incidental questions ) goessl,
preliminary question in EU private international law(2012) journal of private international law 63-76.
25
A Borrds and J.Degeling ‘explanatory report on the international recovery of child support and other forms of
family maintenance ,November 2009 para 385
26
Explanatory report on the protocol of 23 November 2007 on the law applicable to maintenance
obligation ,October 2009 para 24
27
Ibid. this recommendation is based on the interpretation that had been suggested fot the 1956 and 1973
maintenance obligations conventions whereby the law designated to govern the maintenance obligation can also
apply to the preliminary issue of the existence of a family relationship within the meaning of article 1(1)

20
designated by the forum’s conflicts rules. Undoubtedly, given the role of domestic law in
relation to the establishment of parentage as a preliminary question to maintenance, some
potential maintenance relationship will not be given effect in some systems. Similarly
maintenance obligations established in one system might be refused recognition in other
system on the grounds of public policy; although as of yet ,there is no evidence as to how
these issue will be approached by courts in different jurisdiction .Nevertheless it is believed
that as far as the private international law issues of indirect jurisdiction applicable law and
recognition and enforcement are concerned and based on the wording of the instruments as
analyzed above the convention and the protocol are both applicable to maintenance cases
involving Surrogacy. In the absence of a global legislative response, the most prevalent are
the question of legal parenthood and the nationality of the child .In addition to these
difficulties; other legal hurdles can easily be envisaged. Undoubtedly .a cross border
maintenance dispute is one of them .Although available case –law indicates that there has not
yet been cross border litigation over maintenance in the context of
surrogacy ,theoretically ,there are three broadly defined situations which can result in such a
claim .First ,situation where the surrogate mother decides to keep the child and seek child
maintenance from the intended father and/or the intended mother :Second situation where
the intended father and/or the intended mother make a claim for child maintenance against
the surrogate mother and third, situations where following a breakdown of the intended
parents ,relationship .One of the intended parents seeks the child support from the other
intended parent or from the surrogate mother. Admittedly there is a wide variety of potential
sub –scenarios within these three categories, depending on, in particular, the type of
surrogacy arrangement (traditional or gestational surrogacy) and the genetic makeup of the
child .Nevertheless it must be pointed out that given the dynamics of the international
surrogacy market, some of the cases that can be more realistic than others.

3.5. Some Hypothetical Case Scenarios-

The following part of this topic examines three hypothetical cases of cross border
maintenance claims in surrogacy cases.

Scenario 1: (1)-The surrogate mother decides to keep the child and seeks child
maintenance from the intended father –

21
 In a domestic context this scenario arose for the first time in the UK in 2011 in a
surrogacy case of CW v. NT & another 28 .The case involved a traditional altruistic surrogacy
arrangement .The intended parents Mr. and Mrs. W, entered into an informal agreement with
a single woman ,Miss N after meeting her through a surrogacy website .The surrogate mother
was inseminated with the intended father’s sperm and the parties agreed that the surrogate
mother would be paid 10,000 in expenses .However during the pregnancy ,the surrogate
mother decide to keep the baby and refused to continue with the agreement .Under English
law ,the surrogate mother and the intended father were considered to be the child’s legal
parents .the intended father applied for a residence order but his application were refused by
the High Court and a residence order was made in favor of the surrogate mother i.e country Y
will apply29 .Nevertheless if this is the case ,it will be open to country X to exclude the
application law where its effects are manifestly contrary to the public policy of the forum.30

2. Recognition and enforcement in country X of a maintenance order made in country

Y-

Alternatively ,the surrogate mother can apply for a maintenance order in country Y.in
this case the maintenance obligation will be governed in accordance with article 3(1)of the
protocol by the law of country Y as the law of the state of the habitual residence of the
creditor .Assuming that such a maintenance obligation exists under the law of country Y ,the
surrogate mother will then seek in accordance with article 20 of the Hague Maintenance
Convention ,the recognition and enforcement in country X of the maintenance order made in
country Y. The recognition and enforcement may however be refused on the ground of public
policy-that is if it is manifestly incompatible with the public policy of the requested state
(country x) .Additionally article 20(2) allows for a reservation but this is coupled with a duty
to establish in article 20(4) and (5).

It is thought that this is a relatively simple case where the public policy defence is not
likely to succeed in either of the alternative avenues (establishment or recognition ).The
surrogate mother and the intended father are both the genetic and the legal parents of the
child .Most If not all ,legal system acknowledge the genetic father’s maintenance obligations

28
(2011)EWHC 33 (21 February 2011)
29
Protocol ,art 13 if a surrogate mother has no right to maintenance for her child from the biological intended
father under the law of the forum on her habitual residence she seek maintenance under the law of the common
nationality of herself and the intended father if they have one (art 4(4)-but on these facts it is highly unlikely that
they will have a common nationality
30
Protocol. Art 13

22
towards the child .The fact that the child was conceived in the context of a traditional
surrogacy agreement is irrelevant, especially if the arrangement was altruistic. It is suggested
that the situation would remain the same even if the arrangement was altruistic .It is
suggested that the situation would remain the same even if the arrangement involved
gestational surrogacy that is a donor or the intended mother’s ovum was used instead of the
surrogate mother’s ovam. The birth rule which is applicable as the general rule for the
establishment of legal motherhood in both country X and Y is clear :the woman who gives
birth to a child is the child’s legal mother .Consequently ,even if the surrogate mother was not
genetically related to the child ,it is believed that she would still be entitled to seek
establishment of maintenance or recognition of a maintenance order without the public policy
defence being likely to succeed.

Scenario2: The intended father and /or the intended mother make a claim for child
maintenance against the surrogate mother;31

A different conclusion on the applicability of public policy might, however, be

reached if one of the countries involved is a surrogacy –friendly jurisdiction. Nevertheless the
facts of the case will first need to be adjusted .The reason is that in surrogacy –friendly
countries surrogacy agreement (including commercial surrogacy)are in principle enforceable
and therefore the scenario of a surrogate mother keeping the child and claiming maintenance
from the intended father is not entirely realistic .(she would have to abscond with the child
and obtain habitual residence in a surrogacy non-friendly jurisdiction first).so let us assume
the intended parents habitually resident in country A. which is an anti-surrogacy
jurisdiction ,enter into a commercial surrogacy agreement with a single surrogate mother
habitually resident in country B which is a surrogacy friendly jurisdiction. An embryo is
created using the genetic material of the intended parents .the surrogate mother is therefore
genetically unrelated to the child (i.e it is gestational surrogacy case).after the baby is
born ,the surrogate mother hands it over to the intended parents ,country B being a surrogacy
friendly jurisdiction considers the intended parents to be the legal parents of the child .Back
home in country A however only the intended father will be regarded as the legal father of
the child .although the intended mother is also genetically related to the child ,the law of

31
Protocol ,art 13 if a surrogate mother has no right to maintenance for her child from the biological intended
father under the law of the forum on her habitual residence she seek maintenance under the law of the common
nationality of herself and the intended father if they have one (art 4(4)-but on these facts it is highly unlikely that
they will have a common nationality

23
country A will not view her as the legal mother .country A as an anti-surrogacy jurisdiction
will apply the birth rule to the establishment of the legal motherhood and therefore consider
the surrogate as the child’s legal mother (despite the lack of genetic link ).Against this
background the intended father decides to seek child maintenance from the surrogate
mother .assuming the both countries are contracting state to the Hague Maintenance
Convention and the protocol ,two avenues will be open to the intended father:(1) to seek
establishment of a maintenance order in country B(article 10(1)(c) of the Hague Maintenance
Convention in combination with article 4(3) of the protocol );or (2) to seek recognition and
enforcement in country B of a maintenance that in the eyes of the law of country C the
intended parents will be considered as the legal parents of the child ,although neither of them
is genetically related to the child .The Surrogate mother will be viewed only as the carrier
with no legal obligations once the child has been handed over to the intended
parents .following the birth of the child the intended parents split, then intended mother then
removes the child to her native country (country D),which is an anti-surrogacy
jurisdiction ,where she becomes habitually resident the intended father remain in country C
and refuses to take any responsibility for the child. The intended mother therefore seeks child
maintenance from the intended father. She relies on article 10(1)(c)of the Hague Maintenance
Convention and seek the establishment of maintenance in country C it is submitted that using
this avenue ,she should be able to success. Although neither she nor the intended intended
father is regarded as the legal parent in country D, they are both regarded as the legal parents
in country C in accordance with the pre-birth order. Country C as a common law jurisdiction
jurisdiction will not ratify the protocol and country C will apply its own law as the law of the
forum to the maintenance obligation 32. It is possible that as the intended father is not the
genetic father of the child, he will attempt to dispute the existence of his legal parenthood so
the issue of parentage will arise as a preliminary question in the course of the maintenance
proceedings33 .This question will again be governed by the law of country c as the law of the
forum .As the intended father is viewed as the legal father in country C, It is believed that he
is more than likely to be ordered to pay child maintenance by the court of country C and this
is irrespective of the fast that there is no genetic link between him and the child. Alternatively
the intended mother might decide to seek a maintenance order in country D and then get this
order recognised and enforced in country C.

32
Explanatory report on the protocol(19)
33
Ibid para 24

24
3.6. LEGAL MOTHER OF THE CHILD
First we need to make clear that here we are referring to a child born out of surrogacy
when the surrogate mother implanted with the fertilized egg of another woman. In America
the main contrast is seen between the Virginian and Californiain laws. According to the
Virginian the surrogate mother is the legal mother, whereas Californian law spreads just the
opposite.

The Virginia code states that a child born out of a surrogate mother with the consent
of her husband whether implanted with the ova or sperm is deemed to be the legitimate child
of the surrogate mother and husband.

The New Jersey has no statutory law dealing with the issue .it has well established
case law .In the landmark case of in Re Baby M 34 it is held that the birth mother should retain
custody unless there is persuasive proof of her unfitness or of danger to the child. In the case
of Jhonson v.calvert35.The caifornian Supreme Court held that preferring the intending
mother helps the child’s interest because the intending wanted to have child and went to
endless length to get it .English law originally define mother as Virginian law does but due to
high criticism it was amended to include:

1. The child has been carried by a woman other than the wife as the result of the placing
of an embryo or sperm by artificial insemination.

2. The gametes of the husband or wife or both used to bring about the creation of the
embryo, as child of the parties of a marriage.36

In India, according to the National guidelines for accreditation supervision and

regulation of ART clinics evolved in 2005 Indian council o medical research (ICMR) and the
national academy of medical sciences the surrogate mother .The birth certificate is made in
the name of the genetic parents.

Baby Manjhi yamada v. union of Indian and other37, a child manjhi yamada given
birth by a surrogate agreement with her entered into by Dr.Yuki Yamada and Ikufumi
Yamada of japan.The sperm had come from Dr.Ikufumi yamada but egg from a donor not
from Dr.Yuki yamada .There were matrimonoial disorders between the commissioning

34
525A2D 1127 (1988) Guj
35
19 cal rptr 2 d 494 (1993)
36
http://.touro
37
Jt 2008(ii)150

25
parents .The genetic father Dr.ikufumi yamada desired to take custody of the child ,but he
had to return to japan due to expiration of his visa.The grandmother of the baby manjhi Ms.
Emiko yamada flew from japan to take care of the child and filed a petition in the Supreme
court under article 32 of the constitution. The Solicitor General told the Supreme Court that
the decision about Manjhi’s passport would be up to the Indian government. Yamada’s
Attorney Jai singh, insisted that the ICMR’s voluntary guidelines intended babies born via
surrogacy to be considered the legitmate children of their biological fathers.

A month later rajasthan regional passport office issued to Manji an identity certificate
as part of a transit document paving the way for a travel visa for Japan.It was first such
identity certificate issued by the Indian government to a surrogate children born in india.The
certificate did not mention nationality ,mother’s name or religion and it was valid only for
Japan ,according to the passport office. On October 27, the Japanese Embassy issued the
three month old a child a one year visa on humanitarian ground.

Japanese authorities stated at that time that Manji could become a Japanese citizen
“once a parent child relationship has been established, either by the man recognizing his
paternity or through his adopting.

This decision growing public concern in India that there should be a legislation which
deals with the problem relating commercial surrogacy.

In Jan Balaz v.Anand municipality 38, the Gujarat High Court conferred Indian
citizenship on two twin babies fathered through compensated surrogacy by a German national
in Anand district. The court observed:

We are primarily concerned with the rights of two newborn, innocent babies much
more than the rights of the biological parents, surrogate mother or the donor of the ova.
Emotional and legal relationship of the babies with the surrogate mother, or the donor of the
ova .emotional and legal relationship of the babies with the surrogate mother and the donor of
the ova is also of vital importance .the court considered the surrogacy law of countries like
Ukraine, japan, and United States.

Because India does not offer dual citizenship, the children will have to convert to
overseas citizenship of India if they also hold non-Indian citizenship. Balaz the petitioner
submitted before the Supreme Court that he shall be submitting his passport before the Indian
38
2010(2)all.m.h.law reporter,14 gujarat h.c

26
consulate in Berlin. He agreed that NGO in Germany shall respond back to India on the status
of the children and their welfare .The union of India responded that India shall make all
attempts to have the children sent to Germany. German authorities have also agreed to
reconsider the case if approached by the Indian authorities.

The Assisted Reproductive Technology (REGULATION)BILL 201039 states that- A

child born to a married couple through the use of ART shall be presumed to be the legitimate
child of the couple, having been born in wedlock and with the consent of both spouses and
shall have identical legal rights as a legitimate born through sexual intercourse 40. A child born
to an unmarried couple through the use of ART, shall be the legitimate child of the the
parties41. In a case of single woman the child will be the legitimate child of the woman, and in
the case of a single man the child will be the legitimate child of the man 42. In a case married
or unmarried couple separates or gets divorced, as the case may be after both parties
consented to the ART treatment but before the child is born the child be the legitimate child
of the couple43.This bill deals with the parenthood of child very well but the demerit of this
bill is that it is still not enforceable.

3.7. Nationality of Child Born Through Surrogacy

A division bench comprising Chief Justice K.S. Radhakrishnan and Justice
AnantDave held that the children born of a surrogate mother on Indian soil are Indians by
birth, irrespective of the nationality of the father. However, it said immediate legislation was
necessary to inject clarity to the situation created by reproductive science and technology as
the existing legal systems in the country had no clear answer. The Court observed that a
comprehensive legislation defining the rights of a child born out of a surrogacy agreement
rights responsibility of the infertility clinic was also required. For the above question problem
relating to surrogacy the Government take step forward and draft the Assisted Reproductive
Technology (Regulation) Bill, 2010. It said that "if a foreigner or a foreign couple seeks
sperm or egg donation, or surrogacy in India and a child born as a consequence, the child,
even though born in India, shall not be an Indian citizen 44. The birth certificate of a child born

39
Bill 2010
40
Clause 35(1)of ART (regulation )bill 2010
41
Clause 35(2)of ART(regulation) bill 2010
42
Clause 35(3)of ART(regulation)bill 2010
43
Clause 35(4)of ART(regulation)bill 2010
44
Clause 35 (8)of ART(regulation)bill 2010

27
through the use of assisted reproductive technology shall contain the name or names of the
parent or parents, as the case may be who sought such use45.

So it is clear from the ART (Regulation) Bill, 2010 that the nationality of the child
born through the assisted reproductive technology shall be the nationality of the intended
parents. It is also clear from ART bill 2010 that the birth certificate of the child shall contain
the name of intended parent. But the problem is that this bill is still pending in Lok sabha
means it not in force.

3.8. Gay Parents Can Be Considered Custodial Parent of A Surrogate Child:

In the case of Baby Manji Yamada46 the hon'ble Supreme Court held that the intended
parent may be a single male or a male homosexual couple. So in India gay parents can be
considered as a parent of a surrogate child. Advocate Rajiv Dhavan who played a crucial role
in drafting the bill said: "The expression `unmarried couples' under ART Bill 2010 get
heterosexual relationships. But its interpretation has been left open. By conferring the right to
have children on ‘unmarried couples’ and singles parenthood it confers the right even gays
and lesbians to start families using surrogate mothers 47. Clause 35(4) read with clause 2(v) of
the ART (Regulation) bill 2010 it is quite clear that this bill gives right to gays also to have a
surrogate child. Surrogacy Bill 2016 restrains completely the single parents to take the benefit
of surrogacy in India.

3.9. Custody of child if born by surrogate mother

Assuming that most surrogate arrangement is completed without conflict it is said that
parental rights should automatically vest with the initiating parents. Problems arise whether
the surrogate decides to keep the child and refuse to relinquish the child to the couple
especially if she also happens to be the genetic mother. It is argued that section 13(1) of
Hindu Minority and Guardianship Act 1956 and section 170(1) of the Guardians and Wards
Act, 1890 makes a clear that in declaring a Person as the guardian the best interests of the
minor are to be a paramount consideration. The surrogate mother desires the child but only it
is said to exchange it for monetary consideration It is therefore, felt that the adoptive parents
would bestowed for more love and affection of the child than its biological mother .In India
as enumerated in ART Bill 2010 consent of surrogate mother is not material hence, the

45
Clause 35(7)of ART(regulation)bill 2010
46
Jt 2008 (ii)sc 150
47
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28
custody of child will be with commissioning parents. According to ART (Regulation) bill
2010 the birth certificate issued in respect of a baby born through surrogacy shall bear the
name of individual who commissioned the surrogacy as parents48. It shows that the custody of
surrogate child shall be with the commissioned parents. Though this Bill is enacted by not
passed by our legislatures. So this bill is still unenforceable. In England- The custody of child
is to be taken from surrogate mother.

3.10. If surrogate child born physically and mentality retired:

Before the enacting of ART (Regulation) Bill 2010 there was not a law relating to the
regulation of the situation if the surrogate child born physically and mentally retired. The
problem is that if the surrogate child born physically and mentally retired then the intended
parent denied accepting that child it raises problem before our legislatures. To eradicate this
problem our legislators enacted ART Bill 2010 Which stated that if the person or persons
who have availed of the services of a surrogate mother shall be legally bound to accept the
custody of the child/children irrespective of any abnormality that the child / children may
have and the refusal to do so shall constitute an offence under this Act49.

3.11. Status of Divorced Biological Parents In Respect Of the Custody of Child

In the case of Baby Manji Yamada 50.In this case the biological parents Dr. Yuki
Yamada and Dr. Ikufumi Yamada came to India in 2007 and had chosen a surrogate mother
in Anand, Gujarat and a surrogacy agreement was entered into between the biological father
and biological mother on one side and the surrogate mother on the other side. It appears from
some of the statement made that there were matrimonial discord between the biological
parents and they refuse to accept the child. Then the question arose about the custody of
child. The Supreme Court held that the Commissions for Protection of Child Rights Act,
2005 has been enacted for the constitution of a National Commission and State Commissions
for protection of child rights and children courts for providing speedy trial of offences against
children or of violation of child rights and for matters connected therewith or incidental
thereto. Here the Supreme Court does not decide the issue relating to custody of child to the
divorced parents.

By the passing of Assisted Reproductive Technologies (Regulation) Bill, 2010 the

custody of child has been decided:

48
Clause 35(10)of ART (regulation)bill,2010
49
Clause 35(11)of ART (regulation)bill,2010
50
Jt 2008 (ii)sc 150

29
 According to Clause 35(4) if a commissioning couple opts for divorce after going for
surrogacy but before the child is born that case also the child shall be considered to as the
legitimate child of the couple.51

3.11. Right of Information to the Surrogate Child

Before the passing of ART Bill 2010 there was not any right to surrogate child
relating to ask information relating to the donor or surrogate mother. But by passing of ART
(Regulation) Bill 2010, a child who has attained the age of 18 years, ask for any information
relating to the donor or surrogate mother except personal identification 52. Personal
identification of the genetic parent or parents or surrogate mother may be released only in
case of life threatening medical conditions which required physical testing or samples of the
genetic parents or parents or surrogate mother53.

3.12. Enforceability of Surrogate Agreement

The contract entered by the surrogate mother is not free contract because surrogate
mother entered into contract only for money consideration so it is not free contract under
section 14 of Indian Contract Act, 1872.

As for as Sec. 23 of the Indian contract Act,1872 is concerned the contract entered by
the mother against the public policy and immoral. So it is not a valid contract means It is void
contract under section 23 of the Indian contract Act, 1872. So it is not enforceable by court of
law if the surrogate mother has denied fulfilling the contract.

As for the Assisted Reproductive Technology (Regulation) Bill 2010 is concern if a

contract is entered by the surrogate mother that surrogate agreement shall be legally
enforceable. But this bill is still pending in the Lok Sabha.

3.13. Ethical Issues

There are many ethical issues relating to surrogacy. Surrogacy leads to
commodification of the child breaks the bond between the mother and the child, interferes
with nature and leads to exploitation of poor women in underdeveloped countries who sell
body for money. Nirmala a 30 year old lady of Chandigarh who made declaration that she
would rent her comb for Rs. 50000 to pay the medical facilities for her husband. There are
some moral issues relating to surrogacy:

51
Clause 35(4)of ART(regulation)bill 2010
52
Clause 36(1)of ART (regulation)bill 2010
53
Nagin das v. bachoo har kishen 431 A56

30
 1. Abuse of child -If the surrogacy is permitted then it will lead the abuse of children,
The foreigner will come here for surrogate children and child prostitution will started
by those foreigner. Though the surrogacy bill 2016 banned surrogacy for foreigners.

2. Womb for rent -A women rent her womb inspite of money just like in the Nirmala
case.

3. Marketability of motherhood in India- If commercial surrogacy permitted that india

become the hub of surrogate motherhood and it leads to marketability of motherhood.
The commercial surrogacy is also proposed to be ban by surrogacy bill 2016.

4. Selleng of baby for money - If commercial surrogacy is permitted then it will be

known by another name 'selling of baby for money" so it is not morally right.

5. Surrogacy by insemination is immoral - Surrogacy by insemination is immoral

because of the sperm of donor or intended parent is inserted into the womb of
surrogate mother so it is immoral.

6. Surrogate motherhood increases day by day - Surrogate motherhood increases

because the college going girls enter with an agreement to be a surrogate mother for
the pocket money. Even the poor women are participating in surrogate mother for
expenses of their family.

7. Surrogacy leads to commodification of children - By the surrogacy the child will be

treated as goods only for buying and selling purpose.

8. Surrogacy breaks the bond between mother and child - The moral mother of a child is
more careful then the intended parent because she (real mother) leads him nine
months in her womb.

9. The adoption of child will be diluted- By the surrogacy the intended parents want a
child of their own blood the child of others .so the intended parents does not take the
child in adoption and they will become homeless ...it is also an issue related to ethics.

3.14. Parent's Right Not To Tell the Genetic Origin:

There are some people who argue that in case of gamete donation there are
compelling reasons for not telling the child. It has been a contended that it is not in the best
interest of child to tell about the gamete donation because there is a fear that telling a child

31
how they are conceived would cause severe social and psychological problems. A further
reason for not telling the child is that parents should have a right to privacy and if they keep
such information confidential that is the prerogative.54

It is clear that balancing of these competing interests is a different matter that requires
a full debate, discussing the merit of the each.

3.15. Child’s right and surrogacy

It is often contended that surrogacy agreements may lead to the use of child as a
property of the parent. The concept that children are the property of their parents is often
rejected by courts which have found the sale and purchase of children as contrary to the
public policy. These principles arc reflected in various declarations of human rights.

The Declaration of the Rights of the Child (1989) provides that the child should be
protected against forms of neglect, cruelty and exploitation and not be the subject of traffic in
any form" (principle 9). The Convention on the Rights of Child (1989) provides that States
recognize the primary responsibility of parents or legal guardians for the upbringing of the
child and to promote recognition of the common responsibilities of both parents (Art 18).
Article 8 of the convention provides that the child has right to preserve his/her identity-
including nationality, name and family relations. The Convention also provides a child Is not
to be separated from his/her parents against their will unless this is determined, to be
necessary in the interest of the child by competent allowing all interested parties to make
their views known.so these instrument requires that the state in exercising its power give
priority to the best interests of the children. Article 2 of the declaration of the rights of child
(1959) provides that in enactment of laws to enable the development of children, the best
interest of the child shall be the paramount consideration.

International convention civil and political rights have the right to “found a
family”{article 23(2)} and that this provides a right to make surrogacy agreement .The
human rights instruments should be translated in tune with the current pace of assisted
reproductive technologies.

3.16. Brief Analysis of ICMR Guidelines, 2005

Barrenness causes exceptional mental desolation and injury that must be best
portrayed by fruitless couples themselves. Fruitlessness, particularly in India, likewise has
expansive societal ramifications. In this manner, with the quickly expanding utilization of
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32
ART in India, The National Guidelines for Accreditation, Supervision and Regulation of
ART Clinics in India issued by ICMR in 2005 intends to give a stage towards development of
a lawful reason for surrogacy, its direction and control in India. As per these rules, surrogacy
is another option to inversion of disinfection. The rules characterize 'surrogacy' as a course of
action in which a lady consents to convey a pregnancy that is hereditarily random to her and
her better half, with the expectation to convey it to term and hand over the youngster to the
hereditary guardians for whom she is going about as a surrogate. It has likewise depicted
'Manual sperm injection' as the method of moving semen into the conceptive arrangement of
a lady.

3.17. The Assisted Reproductive Technology (Regulation) Bill, 2008

In September 2008, refering to the rise in surrogacy assentions, the potential for
business misuse, and the issues brought up in the Baby Manji case, India's wellbeing priest,
Anbumani Ramadoss, called for national surrogacy enactment. Ramadoss said,

"In light of the current debate (including a Japanese couple and an Indian surrogate
mother), I believe its opportunity we had a law on surrogacy. It's turned out to be more than
sporadic and is fitting business exploitation like the kidney (transplant)."55

After seven days, the ICMR introduced a draft bill of restricting national direction.
Indian committee for restorative research and Ministry of Health and Family Welfare posted
a draft charge on their sites with a plan to accommodate a National structure for the control
and supervision of helped conceptive innovation and matters associated therewith or
accidental thereto. The bill tries to direct the act of surrogacy to some degree. It implies to
direct surrogacy and react to social and moral issues around child rearing related with fake
conceptive methods. Give us now a chance to observe Assisted Reproductive Technology
charge.

As indicated by this draft charge, Assisted Reproductive Technology facilities are to

wind up the focal center point of all surrogacy-related action. They are entrusted with getting
all pertinent data, keeping up precise records of the considerable number of exchanges at all
times. Necessities of privacy and other procedural commitments of the considerable number
of foundations are additionally determined. The bill sets down conditions, (for example, age,
use, and so forth.) that potential gamete benefactors and surrogate moms must meet.56

55
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56
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3.17.1. Surrogate Mother
The present draft under thought takes after the rules set around the India Council of
Medical Research and bars the surrogate mother to be hereditarily identified with the
youngster conceived out of the surrogacy game plan. Consequently the draft charge perceives
gestational surrogacy alone and not customary surrogacy. The draft charge characterizes
surrogacy as;

"a game plan in which a lady consents to a pregnancy, accomplished through helped
conceptive innovation, in which neither of the gametes have a place with her or her
significant other, with the 5 aim to convey it to term and hand over the kid to the individual
or people for whom she is going about as a surrogate"

Three sorts of guardians are associated with surrogacy: aiming guardians who look for
the tyke, hereditary guardians who give the hereditary material to reproduction and the
surrogate mother who conveys the prepared womb until conveyance. An individual can and
regularly wears in excess of one cap. For instance, a man needing to have his own particular
kid additionally gives the sperm to imagine the child in this manner being both the expecting
and also the hereditary father. In like manner, A few different blends are likewise conceivable
which is the place debate regularly emerges. The bill attracts clear lines to keep away from
these issues.57

The Bill, making business surrogacy legitimate, forbids the utilization of the egg of
the surrogate mother for accomplishing pregnancy. This suggests a fruitless couple should
search for a surrogate and also an egg giver; further, a lady with a sound conceptive
framework will be subjected to a convoluted, dangerous and costly technique like in vitro
treatment as opposed to an easier one like intra uterine insemination.

The draft charge 2008 indicates, the age of the surrogate mother to be at the very least
21 years and not over 45 years. What's more, the stipulation to a similar segment restrains the
fruitful live births to 3 in her aggregate life term. Given that no lady might go about as a
surrogate for in excess of three effective live births throughout her life. This stipulation calls
for feedback as the deduction which leaves the wording is that no lady should go about as a
surrogate for more than three live births throughout her life.

57
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34
 Draft charge has likewise discarded relatives as givers on account of In Vitro
Fertilization. At the end of the day, sisters, siblings or different individuals can never again
give sperms or oocytes to the impregnation of a relative. The whole procedure has been
anonymised, Dr Pushpa M. Bhargava, executive, Center for Cellular and Molecular Biology,
Hyderabad, the main designer of the bill told OWSA.

Connections in our general public are organized such that there is regularly an ethical
issue in situations where relatives are surrogates or benefactors. For example, a relative may
request that a facility utilize an example from her other child to impregnate her little girl in-
law

Then again Dr Nayana Patel who runs the popular Akanksha Infertility Clinic in
Anand, Gujarat, does not concur. She said that getting rid of family contributors would just
add to the nervousness of the patients.

Prior, the natural guardians were known thus there was a confirmation about the
hereditary pool or the family attributes. Presently, notwithstanding the injury engaged with
the treatment, the natural guardians will be mysterious and hard to find.

Another necessity to qualify as a surrogate mother is that she should have a place with
a similar type of the authorizing couple. In the event that the planned surrogate mother is
hitched the demonstration requires the assent of her better half. The draft says " if the lady
aiming to be a surrogate is hitched, the assent of her companion might be required before she
may go about all things considered surrogate .

3.17.2. Commissioning Parents

The draft charge has perceived the privilege to multiply at break even with balance for
the two couples and in addition singles. Both the couple and individual looking for surrogacy
using helped conceptive innovation, and the surrogate mother, might go into a surrogacy
understanding which should be lawfully enforceable.

In spite of the fact that there is some vagueness with reference to gay couples as the
draft charge doesn't say so particularly however it could be surmised so from the
accompanying arrangement. Couple, implies the people living respectively and having a
sexual relationship that is lawful in the nation/nations of which they are subjects or they are
living in

35
 The draft charge permits deciding on surrogacy just to those couples who are for all
intents and purposes not ready to imagine independent from anyone else. This condition has
been joined in the bill as under

"No helped regenerative innovation facility might consider origination by surrogacy

for patients for whom it would ordinarily be conceivable to convey a child to term. Given that
where it is resolved that dangerous or unfortunate medicinal ramifications of such origination
may emerge, the utilization of surrogacy might be allowed." 58

The dissimilar effect is self-evident: a lady wanting a kid would in this manner need
to demonstrate that she isn't equipped for bearing one; a solitary man obviously is allowed to
consider as and when he satisfies. In the event that two individuals consensually look to
consider a youngster with the lady, for reasons unknown, not having any desire to experience
the inconvenience of conveying it unto conveyance, what is the state's enthusiasm for
counteracting it given that it has no issue allowing surrogacy paying little mind to the family
game plan of the concerned people? 59

3.17.3. Surrogacy Agreement

The draft charge under thought, as ICMR rules, perceives business surrogacy and
makes it required to acquire everything composed contract shape. A stage ahead from the
rules the stipulations of this bit of proposed enactment requires the dispatching guardians to
guarantee the surrogates paid for by them.

Both the couple and individual looking for surrogacy using helped conceptive
innovation, and the surrogate mother, should go into a surrogacy understanding which might
be lawfully enforceable. 48 All costs of the surrogate identified with a pregnancy
accomplished in encouragement of helped regenerative innovation might, amid the time of
pregnancy and after conveyance according to therapeutic exhortation, and till the kid is
prepared to be conveyed according to restorative guidance, to the natural parent or guardians,
should be borne by the couple or individual looking for surrogacy. Despite anything
contained in subsection (2) of this area and subject to the surrogacy assention, the surrogate
mother may likewise get money related remuneration from the couple or individual, all things
considered, for consenting to go about in that capacity surrogate.

58
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 By making it required to go into a composed get, the drafters have brought the
surrogacy courses of action under the ambit of Indian Contract Act, 1872. Henceforth any
sort of break of surrogacy contract could be changed under the arrangements of the Indian
Contract Act, 1872.

The assention must be marked with free assent by every one of the gatherings to the
agreement. The arrangements of the draft charge require specifying particularly that the
surrogate mother has consented to give up her parental rights in the youngster conceived out
of the surrogacy game plan toward the authorizing guardians in the surrogacy contract.

3.17.4. Legal Parentage

The arrangements of the draft charge under exchange give that where the authorizing
guardians are a hitched couple or an unmarried couple might be regarded to the real offspring
of them two. Considering the circumstance in Baby M case, the stipulation of the draft charge
specify that on account of partition or passing of both of the appointing guardian the
youngster might be viewed as the true blue offspring of them two. The stipulation implanting
this administers is;

On the off chance that a wedded or unmarried couple isolates or gets separated, all
things considered, after the two gatherings assented to the helped conceptive innovation
treatment yet before the kid is conceived, the tyke should be the honest to goodness offspring
of the couple.

The legitimate parentage of kids conceived through surrogacy has not been
satisfactorily handled and circumstances where the planned couple never again need the
youngster, the way toward giving over the kid from the surrogate to the expected guardians
has additionally not been sufficiently tended to. The enactment additionally clears up that the
name on the birth testament will be that of the hereditary guardians, in this manner likening
the term with proposed guardians/parent. Such a statement, albeit securing the namelessness
of the contributor, presumes that the expected guardians will likewise be the hereditary
parents.

3.17.5. Arrangement of Guardians by Foreign Commissioning Parents

Post Baby M case the drafters were mindful about such circumstances subsequently
they gave that in the event that the planned couples are NRIs or outsiders, they need to name

37
a watchman to be lawfully in charge of dealing with the surrogate amid the incubation time
frame till the kid is conveyed. 60

A nonnative or remote couple not occupant in India, or a non-inhabitant Indian

individual or couple, looking for surrogacy in India should delegate a nearby gatekeeper
will's identity lawfully in charge of dealing with the surrogate amid and after the pregnancy
according to condition 34.2, till the 28 kid/youngsters are conveyed to the outsider or outside
couple or the neighborhood watchman. Further, including where the incipient organism was
an outcome of gift of an oocyte or sperm, outside of India to the nation of the gathering's
cause or habitation as the case might be.61

However, this arrangement is indeed not adequate to deal with the exigencies as there
are no rules in the matter of who can be the nearby watchman and the gatekeeper's correct
obligations are. Likewise, the part of the nearby gatekeeper if there should be an occurrence
of any setback to the surrogate or the tyke does not discover in the enactment. Concerned
activists feel that the Draft Bill has a tendency to regularize and advance the enthusiasm of
the suppliers of these advances instead of manage and screen the present practices. The Bill
likewise effectively advances medicinal tourism in India for conceptive purposes. In spite of
the fact that the Bill makes some move to control the procedure of surrogacy with regards to
developing quantities of outside couples coming to India, the similarly essential issue of
Indian ladies likewise getting to be egg 'contributors' for remote couples isn't contemplated.

3.18. Surrogate Mother

The updated draft has rolled out critical improvements in the meaning of a surrogate
mother. The definition according to the new draft seems to be:

"surrogate mother implies a lady who is a subject of India and is inhabitant in India,
who consents to have a developing life created from the sperm of a man who isn't her
significant other and the oocyte of another lady, embedded in her to convey the pregnancy to
reasonability and convey the tyke to the couple/person that had requested surrogacy"

According to the modified definition it is compulsory for the surrogate mother going
into the agreement of surrogacy in India to be an Indian by citizenship and must live in India
as it were. Another expansion in this definition the comparable way is that the draft charge
requires the surrogate mother to convey the pregnancy to feasibility i.e. for whatever length
60
Available at. http//:www.hindustantimes.com/storypage
61
Ibid

38
of time that conceivable with no threat to her life. This definition had added new
measurement to the surrogacy understandings by thinking about the privileges of the
surrogate mother.62

This changed draft has decreased the greatest age cutoff of the proposed surrogate
moms by 10 years. Another adjustment in the new draft charge is relating to the greatest
furthest reaches of labors for the expected surrogate mother. The draft additionally says that
the most extreme number of developing life exchanges per couple that a surrogate can
experience is three.63 By and by, given the low achievement rates of ARTs, all fetuses
exchanges, similar to cycles, may not bring about fruitful births. Along these lines, a
surrogate may experience numerous cycles and fetus exchanges for some couples previously
accomplishing the satisfactory furthest reaches of five effective live births; unfavorably affect
her wellbeing. Subsequently, this arrangement makes shallow endeavor at direction, with
enough degree for abuse and misuse.64

The present draft charge under dialog expanded the quantity of allowed effective live
births for a surrogate from three to five which is comprehensive of the surrogate's own
particular youngsters. Be that as it may, this arrangement deficiently addresses a viewpoint
basic to the surrogate's wellbeing as the draft charge is noiseless on the quantity of allowed
Since the quantity of live births isn't equal to the quantity of Assisted Reproductive cycles, as
the achievement rates of the technique are low, to viably guarantee that the surrogate's
wellbeing isn't abused, the most extreme number of ART cycles she can experience should
likewise be indicated.

As per the present Draft, installment to the surrogate is to be made in five portions
rather than three. The greater part, i.e. 75 for every penny of the installment is to be paid as
the fifth portion, following the conveyance of the tyke. This is in entire differentiation to the
Draft 2008, in which there was arrangement for most of the. This not just demonstrates an
unmistakable need agreed to the planned guardians, yet additionally sells out that the value of
the surrogate's work, pregnancy, related passionate and physical dangers and so on are
viewed as reducible to and insignificant without a substantial conceptive yield, the child .

62
Available at. http//:www.hindustantimes.com/storypage
63
Ibid
64
the Health minister JP Nadda added the statement

39
3.18.1. Appointing Parents
The draft Bill expresses that helped conceptive advancements will be accessible to
every single individual, wedded couples and unmarried couples. Notwithstanding, couple is
characterized as

"Two people living respectively and having a sexual relationship that is legitimate in
India"

Likewise, the bill characterizes both wedded and unmarried couple, as being in a
marriage or relationship separately that is legitimate in the nation of which they are subjects.
All things considered, it isn't clear how these three definitions will be perused together. This
should be illuminated and determined from a rights point of view, with no separation, since
homosexuality has been decriminalized yet not legitimized in India.

3.18.2. Outside Commissioning Parents:

In lieu of the current and disputable instances of worldwide surrogacy that have
brought about fights in court for citizenship status for the tyke, the Bill has made
arrangements to address this issue. The draft Bill now makes it compulsory for outside
couples to deliver an endorsement from their nations pronouncing that the separate nations
allow surrogacy, and that the kid will be viewed as a lawful subject. The draft says the
gathering looking for the surrogacy must guarantee and build up to the helped regenerative
innovation center through appropriate documentation (a letter from either the consulate of the
Country in India or from the remote service of the Country, plainly and unambiguously
expressing that (a) the nation grants surrogacy, and (b) the kid conceived through surrogacy
in India, will be allowed passage in the Country as an organic offspring of the dispatching
couple/person) that the gathering would have the capacity to take the tyke/kids conceived
through surrogacy, including where the fetus was an outcome of gift of an oocyte or sperm,
outside of India to the nation of the gathering's inception or living arrangement by and large.65

As an expanding number of couples from different nations get to surrogacy benefits in

India, such an arrangement will be a valuable legitimate system. The Draft Bill should take
solid measures to address the lawful needs of the surrogate ladies.

65
the Health minister JP Nadda added the statement

40
3.18.3. Surrogate Child:
As the new draft charge has changed the necessity of the hereditary connection of the
appointed kid with the dispatching guardians the surrogate mother needs to give away her
parental rights to the authorizing guardians regardless of their hereditary connection with the
child. According to the draft charge;

"The birth endorsement issued in regard of a child conceived through surrogacy might
bear the name(s) of individual/people who charged the surrogacy, as guardians."

The draft charge has likewise expected the condition where outside couples neglect to
take conveyance of the authorized kid from the surrogate mother after birth. In such a
circumstance the neighborhood watchman delegated by the charging couple is placed in the
shoes of the appointing guardians. This arrangement likewise gives the neighborhood
gatekeeper expert to give the tyke to reception organization in the event that the charging
couple can't guarantee the kid inside a month of the introduction of the kid.66

On the off chance that the remote party looking for surrogacy neglects to take
conveyance of the tyke destined to the surrogate mother authorized by the outside gathering,
the neighborhood gatekeeper might be legitimately obliged to take conveyance of the
youngster and be allowed to hand the kid over to a reception office, the neighborhood
gatekeeper should be in charge of the prosperity of the kid. In the event of reception or the
legitimate watchman bringing up the kid, the tyke will be given Indian citizenship.

This arrangement while securing the privileges of the kid in such cases gives Indian
citizenship from maintaining a strategic distance from the tyke stateless in such a
circumstance. Despite the fact that an appreciated advance, critical holes in the security of
surrogate ladies kids still remain. As an expanding number of couples from different nations
get to surrogacy benefits in India, such an arrangement will be a helpful lawful system. The
Draft Bill should take solid measures to address the lawful needs of the surrogate ladies.
Along these lines, it can be presumed that while an enactment to control the unrestricted
corporate greed of ARTs and surrogacy in India is a genuinely necessary advance towards
checking exploitative restorative practice, the human privileges of the surrogate and the
youngsters—lawful, budgetary, and wellbeing related—should be better ensured.

66
the Health minister JP Nadda added the statement

41
3.19. Brief Study of Draft Assisted Reproductive Technology Bill, 2014
After extensive public debate all over the country from all stake holders, the Indian
Council of Medical Research (ICMR) working under the patronage of the Ministry of Health
and Family Welfare finalized the National Guidelines for Accreditation, Supervision and
Regulation of ART Clinics in India in 2005. Under these 2005 guidelines, there was no legal
bar to the use of Artificial Reproductive Technology by a single or an unmarried woman and
the child born would have legal rights on the woman or man concerned. Thereafter, the draft
Assisted Reproductive Technology (Regulation) Bill, 2008 (ART Bill, 2008), the draft
Assisted Reproductive Technology (Regulation) Bill, 2010 (ART Bill, 2010) stated to be
revised based on the recommendations of the Ministry of Law and Justice, have consistently
proposed that Assisted Reproductive Technology in India would be available to all persons
including single persons and foreign couples. The draft Assisted Reproductive Technology
(Regulation) Bill, 2014 states that assisted reproductive technologies will be available
married to married couples. Subject to the provisions of this Act and the rules and regulations
made there under, the option of assisted reproductive technology, except option of surrogacy
shall be available only to the all Indian married infertile couple 67 and it would not be allowed
to foreigners unless he/she is married to an Indian citizen. Non-resident Indians (NRIs),
Persons of Indian Origin (PIOs) and Overseas Citizens of India (OCIs) shall, however, be
eligible68. The purpose of the object sought to be achieved is to prevent exploitation of Indian
women who may be tempted to take the risk in the face of financial hardships; that is to say
the commercial surrogacy has been banned through this Bill.

In case the assisted reproductive technology is used by a couple, there must be written
consent from both the parties.69 The bill provides that all the expenses, including those related
to insurance if available, of the surrogate related to a pregnancy achieved in furtherance of
assisted reproductive technology shall, during the period of pregnancy and after delivery as
per medical advice, and till the child is ready to be delivered as per medical advice, to the
commissioning couple, shall be borne by the couple commissioning surrogacy70 and If there
are any complications that have arisen during pregnancy (i.e. Gestational Diabetes, Chronic
Hypertension etc.) which are likely to continue for the rest of her life then it shall be covered
appropriately under insurance.71

67
S. 58(1) of Assisted Reproductive Technology (Regulation) Bill, 2014.
68
S. 60(11) (a) of Assisted Reproductive Technology (Regulation) Bill, 2014.
69
S. 58(2) of Assisted Reproductive Technology (Regulation) Bill, 2014.
70
S. 60(2) (a) of Assisted Reproductive Technology (Regulation) Bill, 2014.
71
S. 60(1) (b) of Assisted Reproductive Technology (Regulation) Bill, 2014.

42
 As of now, even though surrogacy as a subject is in the administrative concern and
domain of the Ministry of Health and Family Welfare, regardless, it has been decided that till
the enactment of a law, the Guidelines issued by the Ministry of Home Affairs will prevail.
Hence, foreign parent surrogacy is as of now barred.

The surrogacy agreements are treated at par with other contracts under the Indian
Contract Act 1872 and other laws applicable to these kinds of agreements. Both the
couple/single parent and surrogate mother need to enter into a surrogacy agreement covering
all issues, which would be legally enforceable. The proposed law constitutes an authority at
national and state level to register and regulate the IVF clinics and ART centers and also a
forum to file complaints for grievances against the IVF clinics and ART centers. The age of
Surrogate mother shall be an ever married Indian woman with minimum twenty three years
of age and maximum thirty five years of age and shall have at least one live child of her own
with minimum age of three years.72 Provided that no woman shall act as a surrogate for more
than one successful live birth in her life and with not less than two years interval between two
deliveries and further provided that surrogate mother shall be subjected to maximum three
cycles of medications while she is acting as surrogate mother73.

Therefore, the analysis of the researcher figures out that the guidelines, proposed laws
all are inadequate in protecting and safeguarding the human rights, health rights and
reproductive rights of the women going for IVF techniques and also the rights of the children
born through commercial surrogacy. They lack in setting the standards for medical practice
and completely ignore the regulation of third party agents who play a pivotal role in
arranging surrogates. The draft Bill should effectively regulate and monitor these third party
agents involved in offering and promoting ART and surrogacy services. The Bill should
permit genetic surrogacy, which is a much simpler, less invasive form of surrogacy. It should
also clearly list the various health risks and adverse outcomes of these technologies both for
the surrogate mother and the surrogate child. No pre-natal testing, sex-selection, foetal
reduction or abortion should be done by the intended parents without the permission of the
surrogate. The pattern of payment to the surrogates must also be clearly stated in the Bill and
should be in her best interests.

72
S.60(5) of Assisted Reproductive Technology (Regulation) Bill, 2014.
73
Ss.60(5) (a)&(b) of Assisted Reproductive Technology (Regulation) Bill, 2014.

43
B. CRITICAL STUDY OF SURROGACY REGULATION BILL, 2016:
The recent proposed draft Surrogacy Regulation Bill 2016, passed by the Health
Ministry, was cleared by the Union Cabinet on the 24th of August 2016; and is set to be
introduced in the Parliament soon. Within a span of one week the draft bill received a severe
backlash, being cited as discriminating and draconian. Although the bill was still open to
improvement, he also said that clauses relating to the “exploitation of women and
abandonment of surrogate children” would not be compromised on74.

3.1. IMPORTANT FEATURES OF THE BILL

1. Surrogacy will not be allowed for:
 Homosexual couplesb.
 Single parentsc.
 Couples in live-in relationshipsd.
 Foreignerse.
 Couples with childrenf.
 commercial surrogacy
2. Couple must be married for at least 5 years.
3. Either one of couple must have proven infertility.
4. Only Indian citizens; NRIs are also not included
5. Age of couple: 23-50 for females and 26-55 for males.
6. Women can be surrogates only once and a married couple can only have one
surrogate child.
7. The couple should employ an “altruistic relative”, i.e. the surrogate mother should be
a relative who is sympathetic to the situation. And age of Surrogate Mother shall be
23-35.
8. Egg donation is banned.

Although the bill was made and passed with the intention of preventing this
exploitation, some of the clauses had both the medical community and the general public
outraged. For one, the necessity of only a relative being a surrogate mother. This limits the
possibility of surrogacy to a very large extent, especially since most times, surrogacy
becomes the very last option a couple chooses. Even though adoption is always another
choice, the adoption process is long and tedious. One also needs to keep in mind, the stigma
attached to adoption and the desire of ‘true’ heir (read: male) in Indian societies. Even if the

74
the Health minister JP Nadda added the statement

44
state wanted to curb surrogacy in order to facilitate adoption, in order to stop the privileging
of biological children; there needs to be a streamlining of adoption procedures. The idea of
“altruistic surrogacy” expressed in the Bill, as has been reported, greatly limits both potential
surrogate mothers as well as couples wanting children: since women can become surrogates
only once, and since couples who cannot find willing relatives have only one way out –
adoption (In other countries altruistic surrogacy is allowed but is not limited to relatives, and
one-time pregnancy).

Additionally, limiting a woman’s surrogacy choice to only one time is in a large way
limiting the income of those who survive on this business. Again, it comes down to the issue
of consent. If a woman willingly consents to being a surrogate mother, is assured of a safe
delivery; and the baby is assured of a safe home, why should she be limited to only one
surrogacy? After the surrogacy industry boomed, a lot of women were dependent on the
same. The issue here seems to be that the woman is “exploited” for her body. And this too, is
a legitimate issue. Just as in the case of sex work, when a woman is coerced into the business
because she has no choice, and because she desperately needs the financial resources, it does
not mean that she has fully consented to the job. It means that she has not been provided, or is
not able to find, alternate employment to sustain herself. However, if she is consenting and is
being paid the proper amount, then this should not be an issue at all. In certain European
countries, sex work is fully regulated and sex workers have full constitutional rights, unlike in
India. This is very different from agreeing to go into sex work for lack of any other options.
Similarly, surrogacy laws should be set out in such a way that there is full consent of the
woman in question. Here, instead of regulating the ways and policies in which a woman’s
exploitation is prevented, what the bill has done is eliminate the idea entirely.75

Additionally, egg donations are also banned, perhaps in order to curb child trafficking
and illegal surrogacy racket. However, again a blanket ban will not help in this situation.
Policies need to be structured and laws need to be implemented in such a way that the issue is
resolved without censoring the entire industry itself.

75
Surrogacy contracts are entirely prohibited in countries such as Austria, Egypt, France, Germany, Italy,
Netherlands, Norway, Spain, Sweden, and Switzerland. The countries such as Canada, Denmark, Hong Kong,
and Great Britain have national laws banning commercial surrogacy. But the countries like Ukraine and India
are providing very favorable conditions for commissioning couples that permit and encourage surrogacy. For a
helpful graphic depiction of the States‘ approach to surrogacy. See, Susan Markens, Surrogate Motherhood,
University of California, California (2007), pp. 28-29

45
 One of the most contentious points of the bill is its blatant ban on surrogacy rights of
homosexual couples. This is the first time that the government’s transparent homophobia has
come out in the open. Sushma Swaraj very clearly stated that surrogacy for homosexuals is
against “Indian ethos”, although homosexuality has been constantly mentioned in various
Indian texts. Now, even though this ban could be construed as a mere following of the law
(Section 377 against “unnatural” intercourse), this would only make sense if heterosexual
couples also violating the section were denied surrogacy rights. Since there is no way to
conclusively find out, this is obviously a huge denial of justice to the queer community.
Furthermore, since according to marriage laws only heterosexual couples are allowed to get
married; the explicit stating of the ban of surrogacy to homosexual couples means two very
saddening things: one, since this is the first time there has been an explicit stating of
“homosexuality”, this only reveals that the government is not even open to the idea; and two,
the government is almost stating that the community might as well cease to exist in the
former’s eyes, since the latter have almost no rights with regard to their sexuality.

However, sometimes we are quick to criticize policies without understanding the true
extent of the situation. The bill is extremely necessary in certain places in India; for example,
Gujarat, where ‘baby farms’ exist, i.e. underprivileged women are rounded up in scores and
given out as surrogates to potential parents. Here there is a paradox which the government
needs to tackle: women are being exploited as baby-carriers, but this is a source of income;
and if this ‘exploitation’ stops, then how will they survive? In this industry middlemen play a
large role and take huge slices of the amounts paid by the parents, and only about 25% ends
up with the actual surrogate mothers. And now although the bill will greatly benefit these
women, where will they go for wages76?

Apart from this one glitch however, the bill does seem to do more harm than good.
Although formulated to curb the exploitation of women and trafficking of children; again, it
exhibits the general policy of a state banning or censoring an activity almost completely,
instead of looking at ways to use laws to regulate and improve the situation. Additionally,
while most countries, especially in Europe, only allow altruistic surrogacy, surrogate mothers

76
Surrogacy contracts are entirely prohibited in countries such as Austria, Egypt, France, Germany, Italy,
Netherlands, Norway, Spain, Sweden, and Switzerland. The countries such as Canada, Denmark, Hong Kong,
and Great Britain have national laws banning commercial surrogacy. But the countries like Ukraine and India
are providing very favorable conditions for commissioning couples that permit and encourage surrogacy. For a
helpful graphic depiction of the States‘ approach to surrogacy. See, Susan Markens, Surrogate Motherhood,
University of California, California (2007), pp. 28-29

46
are not limited to relatives, and medical expenses are covered. It can be said that although
India has not banned surrogacy completely (like Germany, France and Italy), the laws need to
be re-looked so that they actually benefit surrogate mothers, prospective parents, and children
born from surrogacy.

Slowly but steadily, the government is proving true what was left unsaid all this
while: homophobia, discrimination towards non-heteronormative relationships, and a
paternalistic enforcement of cultural norms. The bill exhibits a lack of understanding of
agency which ought to be given to a woman; that a woman should be able to make decisions
when the question is with regard to her body. There is no need for the State to be the Big
Brother.

C. 228TH LAW COMMISSION REPORT:

The Law Commission of India after the discussion presented its answer to the
Government of India in August 2009.The Law commission of India in its 228th report has
stressed the requirement for Assisted Reproductive Technology centers and also rights and
commitment of gatherings to a surrogacy. This report is titled as "Requirement for
Legislation to Regulate Assisted Reproductive Technology Clinics and additionally Rights
and Obligations of Parties to a Surrogacy".77 The Law Commission has watched:

"The legitimate issues related with surrogacy are extremely mind boggling and should
be tended to by a thorough enactment. Surrogacy includes strife of different interests and has
incomprehensible effect on the essential unit of society viz. family. Non-mediation of law in
this knotty issue won't be appropriate when law is to go about as enthusiastic safeguard of
human freedom and an instrument of circulation of positive privileges. In the meantime,
preclusion on ambiguous good grounds without an appropriate appraisal of social finishes
and purposes which surrogacy can serve would be unreasonable. The need of great
importance is to embrace a down to earth approach by sanctioning charitable surrogacy game
plans and restrict business ones"78

Considering, the ground substances of surrogacy rehearses in India, the Law

Commission in its report gave the accompanying suggestions:

77
. This report was submitted to the Union Minister of Law and Justice, Ministry of Law and Justice,
Government of India by Dr. Justice A.R. Lakshmanan, Chairman, Law Commission of India, on the 5th day of
August, 2009, as the Law Commission Report No. 228.
78
. Law Commission of India, “Need for Legislation to Regulate Assisted Reproductive Technology Clinics as
well as Rights and Obligations of Parties to a Surrogacy”, Report No. 228.

47
1. Surrogacy game plan will keep on being represented by contract among parties, which
will contain every one of the terms requiring assent of surrogate mother to endure
youngster, understanding of her significant other and other relatives for the same,
therapeutic systems of manual sperm injection, repayment of every sensible cost for
conveying child to full term, ability to hand over the child destined to the authorizing
parent(s), and so forth. Yet, such a course of action ought not to be for business
purposes.

2. A surrogacy game plan ought to accommodate money related help for surrogate child
in case of death of the authorizing couple or individual before conveyance of the
child, or separation between the planned guardians and resulting eagerness of none to
take conveyance of the youngster.

3. A surrogacy contract ought to essentially deal with extra security cover for surrogate
mother.

4. One of the planned guardians ought to be a giver also, in light of the fact that the
power of profound devotion and friendship with a tyke essentially radiates from
natural relationship. Likewise, the odds of different sorts of tyke mishandle, which
have been seen in instances of receptions, will be decreased. In the event that the
expected parent is single, he or she ought to be a contributor to have the capacity to
have a surrogate tyke. Something else, appropriation is the best approach to have a
youngster which is turned to if organic (common) guardians and new parents are
unique.

5. Legislation itself ought to perceive a surrogate child to be the real offspring of the
appointing parent(s) without there being any requirement for selection or even
announcement of gatekeeper.

6. The birth testament of the surrogate kid ought to contain the name(s) of the appointing
parent(s) as it were.

7. Right to security of giver and also surrogate mother ought to be ensured.

8. However, it is a stage to push ahead toward making governing body to manage ART
facilities as well as rights and commitments of the considerable number of gatherings
to a surrogacy and privileges of the surrogate kid. Enactment itself ought to perceive a

48
 surrogate kid to be honest to goodness offspring of the dispatching guardian without
there being any requirement for reception or even affirmation of watchman. The birth
endorsement of the surrogate kid ought to contain the name of the charging guardian
as it were. Appropriate to security of benefactor and additionally surrogate mother
ought to be ensured. Sex surrogacy ought to be restricted. Instances of fetus removal
ought to be administered by the Medical Termination of Pregnancy Act, 1971.

The Law Commission consequently suggested that dynamic administrative

intercession is required to encourage rectify employments of the new innovation i.e.
Craftsmanship and give up the covered way to deal with sanctioning of surrogacy received
heretofore. Comparable concern has been brought by Indian Judiciary up for the situation of
Jan Balaz v. Anand Municipality 79. The Gujarat High Court expressed that, "the council
needs to address parcel of issues like privileges of the youngsters resulting from the surrogate
mother; rights and obligations of the benefactor and the surrogate; and different other lawful,
moral and moral

CHAPTER IV

PROBLEMS, CHALLENGES, ETHICAL AND LEGAL ISSUES

Surrogacy is a process where the intended parent makes a contract to the surrogate
woman for begetting a child. The surrogate woman in that contract agrees to carry the child
till its birth and to renounce her parental rights over the child after birth and hand it over to
the intended parents. Thus surrogacy is a lengthy and time consuming process which requires
honest cooperation and mutual understanding between the parties. Generally every surrogacy
79
. A.I.R. 2009 Guj. 21.

49
process involves an agreement between commissioning parents and surrogate woman. This
contract is a formal written agreement or a mere understanding between the parties and may
or may not involve payment of monetary compensation to the surrogate woman for her
service. A surrogacy contract involving payment of monetary compensation to the surrogate
is considered as a commercial surrogacy contract, while a surrogacy contract in which no
monetary compensation is given to the surrogate for her service is considered as an altruistic
surrogacy contract. Such a contract between the intended parents/parent and the surrogate
woman is necessary to protect the interests of the various stakeholders involved in the
surrogacy arrangement. The surrogacy contract generally contains in it the rights and duties
of surrogate mother and intended parents as well as terms concerning the welfare of child like
custody, parentage, etc80. However, the issues regarding the legality and enforceability of
such a surrogacy contract is dubious because every surrogacy contract raises various legal
and human rights questions.

It is often criticized that commercial surrogacy is a form of baby selling and would
lead to promotion of positive eugenics. It is also argued that surrogacy contracts and more
specifically commercial surrogacy arrangements are against public policy. Further, surrogacy
contracts also raise questions regarding the appropriate remedies in case of any violation of
such contracts. All these issues are very controversial and difficult to answer due to the fact
that there is no uniformity in the legal systems prevailing in the world. This diversity has led
to different approaches towards the legality and enforceability of surrogacy contracts. The
approaches adopted by different countries towards surrogacy contracts are not uniform. Only
some of the countries have enacted legislations dealing with surrogacy contracts and they
widely vary in their approach. Some countries consider surrogacy contracts as illegal, some
permit only certain types of surrogacy contracts and some countries recognize all types of
surrogacy contracts.

There is therefore a need to resolve the ambiguity relating to surrogacy contracts as

well as various legal issues surrounding such contracts. This necessity is now a days of
utmost importance due to the increasing use of surrogacy in recent times by individuals and
couples. It is argued that the current laws in India do not address these issues adequately and
the increasing disputes in surrogacy contracts lead to court battles that may adversely affect

80
Katherine Drabiak et al., “Ethics, Law and Commercial Surrogacy: A Call for Uniformity”, 35 Journal of
Law, Medicine & Ethics, 300 (2007); Alan Wertheimer, “Exploitation and Commercial Surrogacy”, 74 Denv.
U. L. Rev. 1215 (1997).

50
the interests of various stakeholders involved in surrogacy contracts81. Hence it is essential to
examine the existing legal framework in India and its adequacy to deal with various issues
raised by a surrogacy contract.

4.1 Surrogacy Contract: Meaning and Definition:

"Surrogacy Agreement" Is An Agreement Between The Intended Parent And The
Surrogate, Which Expresses Their Necessity And Fully Volitional Desire To Opt For
Assisted Reproductive Technique Of Surrogacy, Whereby The Surrogate Shall Bear And
Gestate i.e. the Embryo of the Intended Parents. A surrogacy arrangement between an
intended parent/parents and the surrogate woman requires clear understanding between them
regarding their rights and duties towards each other. Such an agreement may or may not be
reduced into writing. When the arrangement between the parties is reduced formally into
writing, to give effect to the intention of the parties, it may be termed as a contract. Anson
said “the law of contract does not lay down a number of rights and duties which the law will
enforce; it consist of rather a number of limiting principles subject to which the parties may
create the rights and duties for themselves which the law will uphold”. An "Agreements"
generally means the meeting of minds i.e. the parties to an agreement understanding each
other's intention at the point of entering into the agreement and there is a total
synchronization of thought and action. Every promise and every set of promises forming the
consideration for each other is an agreement 82 and an agreement enforceable by law is a
contract83. According to Anson “a is a legally binding agreement between two or more
persons by which rights are acquired by one or more to acts or forbearances on the part of the
other or others. Salmond said “It is an agreement creating and defining obligations between
the parties”. Thus Surrogacy Agreement means “an agreement between the commissioning
couple availing of assisted reproductive technology and the surrogate mother”84.

A contract is a intended, deliberate, and legally binding agreement between two or

more competent parties. A contractual relationship is evidenced by an offer, acceptance of the
offer, and consideration. It is to be noted that in every surrogacy arrangement there is an
agreement or understanding arrived between the intended parents/parent and the surrogate
woman. There is an offer from intended parents/parent and an acceptance by the surrogate
woman. Thus the agreements between the intended parents/parent and the surrogate woman
81
, Valerie L. Baker, “Surrogacy: One Physician’s View of the Role of Law”, 28 U.S.F. L. Rev. 603 (1993-
1994).
82
Section 2(e) of the Indian Contract Act, 1872
83
Section 2(h) of the Indian Contract Act, 1872
84
Section 2(zs) of Draft Assisted Reproductive Technology (Regulation) Bill, 2016

51
can also be termed as a contract within the meaning of the Indian Contract Act, 1872.
Salmond has rightly observed the law of contract is not the law of agreement, nor is it a
whole law of obligations. It is the law of those agreements which create obligation and those
obligations, which have their source in agreements. A contract arises from an agreement,
which arises mostly through the process of negotiation between the parties, one making the
offer and the other accepting it. A contract may be oral or in writings. But in certain special
cases the act lays down that the agreement, to be valid must be in writing or/and registered,
viz. an agreement to make a gift must be in writing and registered85.

An agreement becomes a contract when the following conditions are satisfied:

(1) The parties are competent to contract.

(2) The object is lawful.
(3) There is lawful consideration.
(4) The consent is free.
(5) The agreement shall not be expressly declared to be void.
(6) The terms of agreement must not be vague or uncertain.
(7) The agreement must be capable of performance.

4.2 Essentials of surrogacy contract

4.2.1 The Parties Must be Competent to Contract:-

The parties to an agreement must be competent to contract. Every person is competent to
contract who is of age of majority according to the law to which he is subject, and who is of
sound mind and is not disqualified from contracting by any law to which he is subject 86.Thus,
the section declares the following persons to be incompetent to contract viz.

a) Minors
b) Persons of unsound mind, and
c) Persons disqualified by law to which they are subject.

This means that the persons such as individual, gay couples, lesbian couples, foreigners
etc. are banned by the Assisted Reproductive Technology (regulation) Bill, 2014 as they are
disqualified by the law which they are subject and commercial surrogacy has also been
prohibited by surrogacy Regulation Bill, 2016.

85
Section 25 of The Indian Contract Act, 1872
86
S.11 of Indian Contract Act, 1872.

52
4.2.2 The Object is Lawful
The object of an agreement must be valid. The object of the agreement would be
unlawful if it is forbidden by law or if permitted it would defeat the provisions of any law or
is fraudulent or causes injury to the person or property of any other or where it is immoral or
opposed to public policy87. It is to be noted that the object of every surrogacy contract is to
beget a child. The right to beget a child is a basic human right and is recognized by national
and international human rights law. This right is an expression of the right to procreation and
includes right to beget a child through surrogacy also. Thus the object of surrogacy
agreement which is to beget a child is in consonance with the national and international
human rights provisions cannot be said to be unlawful. It does not defeat the provision of any
other law nor is it fraudulent in nature. Further in India, there is no legal provision that
prohibits the getting of a child through surrogacy. Hence the surrogacy contracts can be
considered lawful in India.

4.2.3 There is lawful consideration:

Consideration constitutes the very foundation of the contract. Consideration is defined
as “when, at the desire of the promisor, the promisee or any other person has done or
abstained from doing, or does or abstains from doing or promises to do or abstain from doing,
something, such act or abstinence or promise is called as consideration for the promise88.”
Agreement without consideration is void, unless, it is in writing and registered or is a promise
to compensate for something done or is a promise to pay a debt barred by limitation law89.

A contract of commercial surrogacy similar to other contracts involves consideration

and the intended parents agree to pay some amount of money to the surrogate woman.
However in case of altruistic surrogacy contract there is no monetary consideration and the
surrogate may agree to the contract due to love and affection. It may be argued that, altruistic
surrogacy contracts are void because they do not involve monetary consideration. In this
context it is pertinent to point out that Section 25 of the Indian Contract Act, 1872 provides
three exceptions to the general rule that an agreement without consideration is void. One of
the exceptions is that, the contract is expressed in writing and registered under the law for the
time being in force for the registration of documents, and is made on account of natural love
and affection between parties standing in a near relation to each other.

87
The Indian Contract Act, 1872, s. 23.
88
S. 2(d) of The Indian Contract Act, 1872.
89
S.25 of The Indian Contract Act, 1872.

53
4.2.4 The consent is free:
For a valid acceptance, there must be an ad idem “Concurrence of Mind” i.e. agreeing
on the same thing in the same course/ sense at the same time (meeting of mind). Section 13 of
the Indian Contract Act provides that two or more persons are said to consent when they
agree upon the same thing in the same sense. Thus when it is said that there should be
meeting of minds, it only means that the offer and acceptance must correspond. It is the sense
of both of them but not the sense of one of them that constitutes consent. According to
Section 14, “consent is said to be free when it is not caused by Coercion, Undue influence,
Fraud, Misrepresentation, or Mistake.”

In a surrogacy contract if the surrogate woman agrees to act as a surrogate without

any Coercion, Undue influence, Fraud, Misrepresentation, or Mistake, it may be considered
that there is a free consent to such agreement. The nature of a surrogacy arrangement is such
that it requires the surrogate woman to undergo various medical tests and procedures and
become pregnant through ART and carry the baby to full term. Thus if after knowing these
terms and conditions if a woman agrees to act as a surrogate must be considered that she has
given her free consent.

4.3 Enforceability of Surrogacy Contracts:

The question whether surrogacy contracts should be enforced is one of the most
controversial issues in the contemporary times 90 . The opponents of surrogacy contracts argue
that if surrogacy contracts are made enforceable it would lead to potential exploitation of the
surrogate91, the commodification of women and children 92, and promote positive eugenics 93,
etc. The supporters on the other hand argue that, if surrogacy contracts are made
unenforceable, it would undermine the woman‟s ability to contract freely for the use of her
body94. The courts all over the world have also discussed the issue of legality of surrogacy

90
Molly J. Walker Wilson, “Pre-commitment in Free-Market Procreation: Surrogacy, Commissioned Adoption,
and Limits on Human Decision Making Capacity”, 31 Journal of Legislation, 329 (20042005).
91
Katherine B. Lieber, “Selling the Womb: Can the Feminist Critique of Surrogacy Be Answered?”, 68 Indiana
Law Journal, 205 (1992), at p.232.
92
Margaret Jane Radin, “Reflections of Objectification”, 65 South California Law Review, 341(1991), at p.351
93
Larry Gostin, “A Civil Liberties Analysis of Surrogacy Arrangements”, 16 Law and Medicine Health Care, 7
(1988).
94
Lori B. Andrews, “Surrogate Motherhood: The Challenge for Feminists”, 16 Law Medicine & Health Care
72 (1988), at p.76; and Ruth Macklin, “Is There Anything Wrong with Surrogate Motherhood? An Ethical
Analysis”, 16 Law Medicine and Health Care 57 (1988), at p.60.

54
contracts. For example, the first landmark surrogacy case of Baby M 95 raised the question
regarding the legality of surrogacy contracts96.

There is however no consensus in the judicial decisions regarding the legality of such
contracts. The courts in certain countries have held such contracts as valid, while in some
other countries the courts have held such contracts as invalid. Yet in some other countries the
courts have validated only altruistic surrogacy contracts and invalidated all commercial
surrogacy contracts. The legislations in different countries have also adopted diverse
approaches with respect to the legality of surrogacy contracts. In India, there is no direct legal
provision dealing with surrogacy contracts. In the absence of such legal provision, the general
laws regulating commercial contracts i.e. The Indian Contract Act, 1872 can be applied to
such contracts. According to Indian Contract Act, all contracts which satisfy the essential
ingredients of a valid contract are legal and enforceable. As stated above, a surrogacy
contract satisfies all the essentials of a valid contract. However various authors have pointed
out that though surrogacy contract satisfies all the essentials of valid contract, such contracts
are still illegal and should not be enforced. Most of the arguments against surrogacy contracts
are based on legal, ethical and moral considerations.

4.3.1 Co modification of Motherhood:

One major criticism against the surrogacy contracts is that it promotes
commodification of motherhood97. This criticism is based on the premise that when resources
are allowed to be exchanged through contract, it requires that the resources be commodified 98.
In case of surrogacy contracts, the surrogate woman agrees to procreate through surrogacy
and hand over the resulting child to the intended parents. Thus it is a contract which decides
the initiation of procreation and its continuation and culmination with the handing over of the
child to the intended parents.

95
In re Baby M, 537 A.2d 1227, 109 N.J. 396.
96
In this case, in 1987, New Jersey Superior Court Judge Harvey R. Sorkow formally validated the surrogacy
contract and awarded custody of Baby M to William Sterns (intended father) under a “best interest of the child
analysis”. On February 3, 1988, however, the Supreme Court of New Jersey, led by Chief Justice Robert
Wilentz, invalidated surrogacy contracts as against public policy but in dicta affirmed the trial court‟s use of a
“best interest of the child” analysis and remanded the case to family court. On remand, the lower court awarded
the custody to Bill and Betsy (intended parents) and Mary Beth (surrogate mother) was given visitation rights.
97
Pamela Laufer-Ukeles, “Approaching Surrogate Motherhood: Reconsidering Difference”, 26 Vt. L. Rev. 407
(2001-2002), at p.417
98
William Joesph Wagner, “The Contractual Re-allocation of Procreative Resources and Parental Rights: The
Natural Endowment Critique”, 41 Case W. Res. L. Rev.1 (1990), at p.7.

55
4.3.2 Potential for Economic Exploitation:
It is argued that surrogacy contracts open up the possibilities of economic exploitation
of poor women who may be forced to act as a surrogate for the rich due to economic
necessity99. This argument is based on the idea that economic necessity could force some
poor women to enter into surrogacy agreements which they otherwise would not have
entered. Large sums of money could entice such women to become surrogates without truly
understanding the nature of the process. With the increasing incidents of surrogacy, the
middlemen or brokers also come into picture to provide information to the intended parents
as well as clinics regarding the availability of surrogates. It is argued that, such a practice has
the potential to cause exploitation of surrogate women as they mostly belong to poor families,
are illiterate and are not aware of their legal rights. Regarding the criticism that, the surrogate
woman may suffer harm or injury as a result of surrogacy process, it is submitted that every
pregnancy involves an inherent danger to the woman. Likewise there are many activities
which have an inherent danger but are not prohibited. For example working in military,
police, working in underground mines, working in certain factories, etc. But these activities
are not prohibited due to the danger involved in them. Moreover in every surrogacy contract,
the parties are free to make provisions to deal with any unwarranted situations causing harm
or injury to the surrogate women.

4.3.3 Trafficking in Women and Children:

In India there are various legal provisions for dealing with trafficking in women and
children. Most importantly, the Constitution of India, under Article 23 provides that,
“trafficking in human beings and beggar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in
accordance with law”. However there is no specific definition of trafficking in human beings
in India. In the absence of such a definition, the definition of trafficking in human beings at
international level can be considered in India also.

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and
Children100 define human trafficking as:

a. the recruitment, transportation, transfer, harboring or receipt of persons, by means of

threat or use of force or other forms of coercion, or abduction, or fraud, or deception,

99
Kevin Tuininga, “The Ethics of Surrogacy Contracts and Nebraska‟s Surrogacy Law”, 41 Creighton Law
Review, 185 (2008), at p.195.
100
It is a protocol to the Convention Against Transnational Organized Crime, adopted by the United Nations in
Palermo, Italy, in 2000. This Protocol entered into force on 25 December 2003.

56
 or the abuse of power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over another
person, for the purpose of exploitation. Exploitation shall include, at a minimum, the
exploitation or the prostitution of others or other forms of sexual exploitation, forced
labour or services, slavery or practices similar to slavery, servitude or the removal of
organs;
b. The consent of a victim of trafficking in persons to the intended exploitation set forth
in subparagraph (a) of this article shall be irrelevant where any of the means set forth
in subparagraph (a) have been used;
c. The recruitment, transportation, transfer, harboring or receipt of a child for the
purpose of exploitation shall be considered „trafficking in persons‟ even if this does
not involve any of the means set forth in subparagraph (a) of this article112.

Thus trafficking of women means the recruitment, transportation, transfer, harboring or

receipt of women, by means of the threat or use of force or other forms of coercion, etc 101. In
a surrogacy contract all these features are absent and thus it cannot be equated with
trafficking.

4.3.4 Slavery and Violation of Human Dignity:

A surrogacy contract, according to certain authors can be characterized as a form of
modern slavery. This is because in a surrogacy contract, the surrogate woman has to abide by
the conditions imposed on her by the intended parents and the physician. Once a woman
agrees to act as a surrogate for another, she has to undergo various medical tests and is bound
to refrain from acting according to her wish. In most of the cases the surrogate has to stay in
the special accommodation provided by the clinic and subject to supervision by the physician.
So it can be considered as commercial servitude during the period of surrogacy process. It is
submitted that, in case of slavery a slave does not have any freedom and can be used, sold or
bought by the owner. However in case of surrogacy contracts, the surrogate woman is not
sold or bought by the intended parents. On the contrary in surrogacy contracts, the woman
herself agrees to act as a surrogate and accepts the duties imposed by the intended parents.
More importantly, the conditions and duties imposed on the surrogate woman are reasonable
and only to the extent required for ensuring the welfare of the child in the womb. The
surrogacy contract does not violate the inherent dignity of women and in fact not only

101
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children,
2000, Article 3(a).

57
mentions about duties of a surrogate but also provides various rights of surrogate woman.
Therefore, if the surrogacy contracts are considered as slavery, then every other contract in
which an individual agrees to perform some duties for another based on certain terms should
also be considered as slavery. Thus a surrogacy cannot be equated with any form of slavery.

4.3.5 Immoral and Opposed to Public Policy:

All types of surrogacy contracts are generally criticized on the ground that they are
immoral and opposed to public policy and hence void and unenforceable. A contract which is
immoral and opposed to public policy is considered as void and unenforceable in India. In
this context it is necessary to examine the meaning of the terms “immoral” and “public
policy”. Section 23 of the Indian Contract Act, 1872 provides that every agreement of which
the object or consideration is unlawful is void. The Act also states that, the object or
consideration is unlawful if the contract is immoral 102. Thus it is essential to identify whether
the object of a surrogacy contract is moral or immoral. The word “immoral” is not defined in
the Indian Contract Act, 1872. However, the Supreme Court has discussed this term in
Gherulal Parakh v. Mahadeodas Maiya and Others103. The Court has stated that, the word
“immoral” is very comprehensive and varying in its contents and no universal standard can
be laid down. The Court observed that, the provisions of Section 23 of the Indian Contract
Act indicated that the Legislature intended to give that word a restricted meaning. The
limitation imposed on it by the expression “the Court regards it as immoral” clearly indicated
that it was also a branch of the common law and should, therefore, be confined to principles
recognized and settled by courts. The Court further identified that all judicial decisions
confined immorality to sexual immorality. Therefore, it can be stated that in India, the word
immoral under Section 23 of the Contract Act, 1872 refers only to sexual immorality. In
surrogacy contracts there is no sexual activity between the surrogate woman and intended
parent/parents and hence a surrogacy contract is not immoral in India.

In the case of Maharashtra Apex Corporation v. Sandesh Kumar and Others 104, the Court
held:

“a contract which has the tendency to injure public interest or public welfare is a
contract opposed to public policy. What constitutes an injury to public interest or welfare

102
S. 23 of The Indian Contract Act, 1872.
103
A.I.R. 1959 S.C. 781, 1959 S.C.R. Supl Yvonne M. Warlen, “The Renting of the Womb: An Analysis of
Gestational Surrogacy Contracts Under Missouri Contract Law”, 62 U.M.K.C. L. Rev. 583 (1993-1994).. (2)
406
104
A.I.R. 2006 Kant. 138.

58
would depend upon the times and the claims. The social milieu in which the contract is
sought to be enforced would decide the factum, the nature and the degree of the injury. The
concept of public policy is not immutable, since it must vary with the changing needs of the
society”.

In the case of surrogacy contract there is no injury to public welfare or public interest.
Further the nature of surrogacy contract and the consideration involved do not have any
adverse effect on the public welfare or public interest. On the contrary, the surrogacy is
acting as a boon to a section of the public which is not able to beget a child due to various
medical, social or other reasons.

4.4. Breach of Surrogacy Contracts and its Remedies:

The traditional contract law considers a contract as “a promise or a set of promises for
the breach of which the law gives a remedy, or the performance of which the law in some
way recognizes a duty”105. The very object of entering into a contractual relationship is to
ensure that the promises made by the parties to the contract are fulfilled by the parties. This
assurance is given by law by creating obligations on the parties to fulfill their promises. A
breach of contract occurs when a party thereto renounces his liability under it, or by his own
act makes it impossible that he should perform his obligations under it or totally or partially
fails to perform such obligations106. The failure to perform or renunciation may take place
when the time for performance has arrived or even before that. In case of any such breach on
the part of one party to fulfill the promises, the law provides a right to the other party to seek
appropriate remedy. Thus the contract law provides provisions for breach of contract and the
remedies for the same. This is because a contract being a fountain head of a correlative set of
rights and obligations for the parties, would be of no value, if there are no remedies to
enforce the rights arising there under. Under the contract law the injured party has the
following remedies viz. (i) to sue for damages for the loss suffered by the breach 107; (ii) to sue
for quantum meruit; or (iii) in certain circumstances to sue for specific performance.108

In every surrogacy arrangement, the process starts with the preliminary screening of
the surrogate woman. If the woman is considered fit and selected to act as a surrogate, the
parties will make a formal contract. Once the parties entered into the contract, the surrogacy

105
Yvonne M. Warlen, “The Renting of the Womb: An Analysis of Gestational Surrogacy Contracts Under
Missouri Contract Law”, 62 U.M.K.C. L. Rev. 583 (1993-1994).
106
Avtar Singh, Law of Contract and Specific Relief, EBC, Lucknow.
107
The Indian Contract Act, 1872, S.73.
108
Under the provisions of the Specific Relief Act, 1963.

59
procedures will be initiated. Firstly, the surrogate will be artificially inseminated with the
genetic material of the intended father or anonymous donor or implanted with an embryo
created by combining genetic material of intended parents or from the anonymous donor. If
in case the pregnancy is not successful, the contract would come to an end. If the pregnancy
is successful she is expected to carry the baby to the full term. During the period of nine
months she is required to follow certain conditions imposed by intended parents as per the
instructions of the physician. After successful delivery of the child, the surrogate mother has
to hand over the child to the intended parents and relinquish all her parental rights over the
child. The intended parents also have to fulfill their obligations during all these stages such as
arranging the physician, providing for the medical expenses, paying premiums to the
insurance policy, making payment of compensation, and most importantly to accept the child
after its birth. A breach of contract can occur during each of these stages either by the
surrogate mother or by the intended parents. In a surrogacy contract, depending upon the
stage where a breach has occurred, it can be classified into the following three broad
categories.

4.4.1 Breach Prior to Artificial Insemination or Implantation of Embryo:

The breach most likely to occur prior to artificial insemination or Implantation of
Embryo is a refusal by the surrogate mother to submit to the artificial insemination procedure
or Implantation of Embryo. The intended parents could also breach the agreement by backing
out prior to artificial insemination109. They may either refuse the surrogate woman or they
may not fulfill their agreed obligations like advance payment to surrogate, or insurance policy
or any other obligation agreed to be performed by them prior to artificial insemination or
Implantation of Embryo. The breach of surrogacy contract prior to these processes may occur
due to an anticipatory breach or due to discharge of contract by a breach on part of any of the
parties.

The Indian Contract Act, 1872 under Section 39 deals with anticipatory breach as well
as discharge of a contract by breach. It provides that, “when a party to a contract has refused
to perform, or disabled himself from performing, his promise in its entirety, the promisee
may put an end to the contract, unless he has signified, by words or conduct, his acquiescence
in its continuance”. The consequences of an anticipatory breach and discharge of a contract
by breach are mentioned under Sections 64 and 73 of the Indian Contract Act. Section 64 of

109
Keith J. Cunningham, “Surrogate Mother Contracts: Analysis of a Remedial Quagmire”, 37 Emory Law
Journal, 721, (Summer 1988), at p.746; David K. Martin, “Surrogate Motherhood:

60
the Act provides that, “when a person at whose option a contract is voidable rescinds it, the
other party thereto need not perform any promise therein contained in which he is the
promisor. The party rescinding voidable contract shall, if he had received any benefit there
under from another party to such contract, restore such benefit, so far as may be, to the person
from whom it was received”. Further Section 73 of the Act states that, “when a contract has
been broken, the party who suffers by such breach is entitled to receive, from the party who
has broken the contract, compensation for any loss or damage caused to him thereby, which
naturally arose in the usual course of things from such breach, or which the parties knew,
when he made the contract, to be likely to result from the breach of it. Such compensation is
not to be given for any remote and indirect loss or damage sustained by reason of the breach”.

When a party has made an anticipatory breach of contract, the other party may put an
end to the contract, unless he/she has signified by words or conduct his/her acquiescence in
its continuance. It means that on the anticipatory breach of contract by one party, the other
party has two alternatives open to him/her, i.e.

a. He/she may rescind the contract immediately, i.e., he/she may treat the contract at an
end, and may bring an action for the breach of contract without waiting for the
appointed date of the performance of the contract.
b. He/she may not put an end to the contract but treat it as still subsisting and alive and
wait for the performance of the contract on the appointed date.

Thus, in case of an anticipatory breach by a surrogate woman, the intended parents can
either treat the contract has ended and bring an action for the breach of contract without
waiting for the appointed date for artificial insemination procedure or Implantation of
Embryo; or the intended parents may not put an end to the contract and treat it as still
subsisting and wait for the date of artificial insemination procedure or Implantation of
Embryo. Generally, in a contract, when the promisee accepts the repudiation of the contract
even before the due date of performance and elects to treat the contract at an end, he is
discharged from his obligation to perform the contract, and also gets a right to bring an action
for the breach of contract, if he so likes, even before the due date of performance has
arrived.110

110
Surrogacy contracts are entirely prohibited in countries such as Austria, Egypt, France, Germany, Italy,
Netherlands, Norway, Spain, Sweden, and Switzerland. The countries such as Canada, Denmark, Hong Kong,
and Great Britain have national laws banning commercial surrogacy. But the countries like Ukraine and India
are providing very favorable conditions for commissioning couples that permit and encourage surrogacy. For a
helpful graphic depiction of the States‘ approach to surrogacy. See, Susan Markens, Surrogate Motherhood,

61
 Thus it can be concluded that in case of a breach prior to AI or IE in a surrogacy contract,
the parties can treat contract as come to an end and claim any damages which they have
suffered due to such contract and are obliged to restore all the benefits that they have
obtained from other party.

4.4.2 Breach after the Artificial Insemination or Implantation of Embryo:

In a surrogacy, the artificial insemination or implantation of embryo may be either
successful or unsuccessful. In cases where artificial insemination or implantation of embryo
is unsuccessful the contract may automatically be treated coming to an end. But in cases
where the pregnancy is successful, the contract continues and the parties should fulfill all the
terms and conditions of such contract which they have agreed. Further, during a surrogacy
pregnancy, the breach can occur by the surrogate or by the intended parents.

The surrogate woman can commit breach by performing certain activities which
adversely affect the development and health of the foetus and are prohibited by the terms and
conditions of the contract; or the surrogate may not perform activities which are required by
the contract. For example, activities like smoking, drinking, and sexual intercourse may be
prohibited by the contract while regular medical checkups and taking proper food and
medicines may be required by the contract.111 Any failure on part of surrogate woman to
perform these obligations can be considered as a breach of contract. Further the most serious
form of breach can be abortion of the foetus by the surrogate against the wish of the intended
parents. Intended parents may break the contract by not-fulfilling their obligations towards
the surrogate mother. For example, they may not provide the agreed amount, medical
expenses, insurance policy as well as any other obligations agreed to have been performed by
the intended parents.

In case where the surrogate woman breaches the contract after successful artificial
insemination or implantation of embryo by performing prohibited activities or not performing
required activities, any breaches which do not have an adverse effect on the fundamental
object of the contract cannot give rise to a right to the intended parents to rescind the contract.
Thus the intended parents are bound to perform their obligations as per the contract even if
there are minor breaches on the part of surrogate woman during pregnancy. However, in such
cases after the delivery the intended parents can sue for damages due to such breach by

University of California, California (2007), pp. 28-29

111
Carolyn Sappideen, “The Surrogate Mother – A Growing Problem”, 6 U.N.S.W.L.J. 79 (1983), at p.91.

62
surrogate woman. A major difficulty which arises with respect to such a situation is the
question of calculation of compensation to be given to the intended parents. It is submitted
that, in such cases the court may appoint an expert committee including medical personals
and lawyers to determine the quantum of compensation depending upon the effect of such
breach on the child delivered by the surrogate. Further, the surrogate can break the contract
by aborting the foetus without informing and without the consent of intended parents. In such
a situation two important questions arise i.e. firstly, whether the surrogate woman has a right
to abort foetus without the consent of the intended parents; secondly what will be appropriate
remedy available to the intended parents in such a case? Regarding the question whether the
surrogate has a right to abort without the consent of intended parents, it is submitted that a
surrogate cannot claim such a right and if she does so, then the intended parents can claim
compensation. The quantum of compensation should be determined by the court taking into
account the financial loss as well as mental sufferings of the intended parents.

In case the surrogate informs or threatens the intended parents with her decision to
abort the foetus, the question arises whether the intended parents can approach the court for
an order compelling the surrogate to continue with the pregnancy. Generally when there is a
threat from one party regarding his non-willingness to perform, the other party may approach
the court for an order for specific performance. However, in surrogacy contract if the
surrogate informs or threatens the intended parents with her decision to abort, the intended
parents cannot approach the court for an order for specific performance by the surrogate
mother because an order for specific performance cannot be awarded in each and every
circumstance112.

It is submitted that termination of a pregnancy due to the breach of a surrogacy

contract by intended parents should be made legal in India. For this the Medical Termination
of Pregnancy Act, 1971 should be amended to include breach of surrogacy contract by the
intended parents as a ground for terminating pregnancy113. However, there may be a situation
in which the termination of pregnancy may be dangerous to the health and life of the
surrogate. In such cases, the surrogate can deliver the child and can be allowed to claim
compensation. If the surrogate wants, she can keep the child or if the intended parents are

112
Specific performance is not available for contracts requiring personal services such as employment contracts
because such an order would restrict an individual‟s freedom, See, Chappell v. Times Newspapers Ltd [1975] 1
W.L. R. 482.
113
In Section 3 after Clause 4 of MTP ACT, 1971. Section 3 provides various grounds in which a pregnancy can
be terminated legally.

63
ready to accept the child, the surrogate can hand over the child to them. If the surrogate keeps
the child, she can claim the maintenance expense from the intended parents. In case where
the surrogate and the intended parents are not willing to accept the child, the child can be
given to any near relative of the intended parents if they are willing or should be placed for
adoption or should be handed over to an orphanage. If the child is placed for adoption, the
court can issue an order that, the intended parents have an obligation to maintain the child
until the adoption is complete. If the child is placed in an orphanage, it should be made as a
mandatory obligation of the intended parents to maintain the child up to the age of majority.

4.4.3 Breach after Birth:

Breach of the surrogacy contract may occur after the birth of the child either by the
surrogate or by the intended parents. The surrogate mother may breach the contract by
refusing to hand over the child to the intended parents or by claiming parental rights over the
child or demanding more money for relinquishing her parental rights. Likewise, the intended
parents may breach the contract by refusing to accept the child after its birth or by refusing to
make the payment of medical expenses or the agreed compensation to the surrogate.

In cases where the surrogate makes breach of contract, the intended parents can
approach the court for specific performance. The Specific Relief Act, 1963 provides that,
“when there exists no standard for ascertaining the actual damage caused by the non-
performance of the act agreed to be done; or when the act agreed to be done is such that
compensation in money for its non- performance would not afford adequate relief”, an order
for specific performance can be issued by the court 114. In a surrogacy contract, if the surrogate
refuses to hand over the child after its birth, it is very difficult to ascertain the actual damage
caused to the intended parents due to the refusal to hand over the child. So also no amount of
money can adequately compensate the intended parents for their shattered expectations of
having a child192. Thus the court can issue an order for specific performance. However in
such cases, the intended parents should perform their part of the obligations as per the terms
of the contract, before approaching the court, since specific performance is an equitable
remedy.

In case there is a breach by intended parents, i.e. if the intended parents refuse to
accept the child, the surrogate woman can approach the court for specific performance. This
is because the surrogate has entered into surrogacy contract only on the basis of the promise

114
S.10 (a) (b) of The Specific Relief Act, 1963.

64
that the intended parents would accept the child after its birth. So it is necessary that, the
intended parents should accept the child. As per the provisions of Specific Relief Act, 1963
the court is empowered to issue an order of specific performance 115. This is because the
damage to the surrogate due to such refusal cannot be ascertained and no amount of money
can compensate for such damages. There may be a situation where the intended parents may
refuse to accept the child even after the order for specific performance. In such cases if the
surrogate or any relative of the intended parents are willing to accept the child, they may be
allowed to keep. Otherwise the child may be placed for adoption or given to an orphanage. If
the child is placed for adoption, the intended parents should make arrangements for its
maintenance till the adoption is completed. In case where the child is given to an orphanage,
the intended parents have to provide maintenance for the child till it attains majority. In all
cases, the intended parents have to provide to the surrogate, the agreed amount of
compensation or any amount to be decided by the court depending upon the circumstances.

Further if the contract involves a breach by the intended parents due to the failure of
payment of agreed compensation and other medical expenses, the remedy available to the
surrogate is to approach the court for specific performance of contract and compensation and
she is entitled to keep the child till the obligations are fulfilled by the intended parents.

It is pertinent to point out that, there may be certain situations where the purpose of
the surrogacy contract may be adversely affected in spite of the performance of obligations
by both parties to the contract. They are miscarriage, still birth, defective birth or multiple
births, etc. Thus an important question which arises in such cases is that, whether the
intended parents can refuse to fulfill their obligation towards the surrogate? It is submitted
that, such circumstances should be considered as an Act of God116 and the intended parents
cannot excuse themselves from the fulfillment of their obligations towards the surrogate.

4.5 Legal and Ethical Discussion on Surrogacy:

The moral, ethical and religious objections to surrogacy are based on the hypothesis
that life is a creation of God and human beings should not attempt to play God by
intrusiveness in the natural processes. Another serious protestation in this regard is the fact
that surrogacy procedure involves repeated trials which use either male or female genetic

115
As per Section 10 an order for specific performance can be issued, „when there exists no standard for
ascertaining the actual damage caused by the non- performance of the act agreed to be done; or when the act
agreed to be done is such that compensation in money for its non- performance would not afford adequate
relief‟.
116
This is applicable because those events are not in the hands of surrogate mother.

65
material or the human embryo. The wastage of human embryo is criticized as similar to
murder, because according to some scholars human life begins at fertilization.

Surrogacy has proved to be a boon for infertile couples. At the same time the
escalating use of this technology has also led to various controversies and contradictory legal
issues. These conflicts have at times erupted into a ferocious debate over the legality of
surrogacy. A discussion on this debate is necessary in order to understand the arguments
underlying surrogacy. Since the controversy adjoining surrogacy, has been brought to renown
by the leading surrogacy cases all over the world as well as arguments made by legal scholars
and commentators, such a discussion is important in determining how surrogacy should be
dealt with by the legal systems in different countries in future. Most of the criticisms against
surrogacy are based on various ethical, moral, religious and legal grounds. Admittedly, the
influence of ethics, morality and religious practices cannot be ruled out in a legal discussion,
as the ethics and morality have played an important role in shaping the societies attitude
towards legal issues as well as the foundation of most of the legal systems of the world.

Surrogacy attaches commercial values to social and moral meanings allied with
reproduction and wreckage the social and moral bonds of kinship. The knowledge of the
means of their birth will make such children psychologically disturbed. No Indian law
prohibits surrogacy that is why there is no questioning of its legality. The surrogacy
agreement under the Indian Contract Act, 1872 is not enforceable because it is against the
public policy. By Drafting the Assisted Reproductive Technology (Regulation) Bill, 2014 and
Surrogacy (Regulation) Bill, 2016 the Surrogacy treatment is enforceable but this bill is still
pending. If surrogate child is born in India and the intended parents are the citizen of the
country other than India then the legal issue arises.

66
 CHAPTER V

SURROGACY: INTERNATIONAL VIEW

5.1 Comparative Global Studies on Surrogacy:

In most countries of the world, gestational surrogacy is legally prohibited. Where it is
allowed, it exists in the form of altruistic surrogacy, which is also regulated or restricted.
Contracts between parents and the surrogate mother are, in most cases, unenforceable. In
federations like the United States or the European Union, the unevenness of legal restrictions
or regulations by individual states or countries compounds the problem. The United Kingdom
sets an example regarding public policy and debate about surrogate motherhood where
although it is not a crime to be a surrogate mother or to be a commissioning parent but
‘commercial surrogate agencies’ and commercial actions of surrogacy agents are prohibited 117
and no surrogacy arrangement whatsoever is enforceable in law 118. When a disagreement
arises concerning handing over the child, the surrogate mother has the legal right to retain the

117
The Surrogacy Arrangements Act, 1985, c. 49, S. 2, states that “no person shall on a commercial basis,”
among other things, “initiate or take part in any negotiations with a view to the making of a surrogacy
arrangement,” but that it is not illegal “for a woman, with a view to becoming a surrogate mother herself,” to do
any of the actions prohibited to be done on a commercial basis.
118
The relevant pieces of legislation are S. 2 of the Surrogacy Arrangements Act and the Human Fertilization
and Embryology Act, 1990, c. 37,SS. 30, 36(1). The latter section renders surrogate motherhood contracts
unenforceable.

67
child whether she is a genetic or gestational surrogate mother. 119 Married couples who have
commissioned a surrogate mother to carry a child for them may apply for and be granted a
parental order, which will declare them the legal parents of the child, provided that one or
both of them supplied the gametes for the embryo.

5.2 Surrogacy: Legal Responses in Foreign Countries:

The debate generated by surrogacy and the various moral, ethical, religious and legal
issues raised by it have led to the view that there should be some policy or guidelines for its
control and regulation. However there is no consensus of opinion among the countries of the
world with respect to the legal measures to be adopted for the control and regulation of
surrogacy. Different countries have adopted different guidelines and legislations as per their
social, economic, cultural, and religious needs and legal requirements.120

5.2.1 UNITED KINGDOM:

In the United Kingdom, one of the few countries in Europe that allows surrogacy,
there was a great deal of controversy following the birth of a child in 1985 in a partial
surrogacy arrangement and legislation called “Surrogacy Arrangements Act, 1985”, was
rapidly passed to limit but not ban the practice, Under this law, commercial surrogacy
arrangements were made illegal. After a great deal of discussion, the British Medical
Association agreed that it would not be possible or desirable to seek to prevent the
involvement of doctors in surrogacy arrangements, especially as the government does not
intend to make the practice illegal. 121 This report set out guidelines for doctors intending to
treat patients by gestational surrogacy and made it clear that it should only be carried out for
exceptional reasons and after intensive investigation and counseling. 122 A couple can apply to
the court for a pre-birth order that will name the couple as the legal parents of any children
born to the surrogate. It is a requirement of the United Kingdom’s Human Fertilization and
Embryology Act, 1990 that the welfare of any child born as a result of surrogacy treatment
and the welfare of any existing children must at all times be taken into account when
119
Human Fertilization and Embryology Act S. 30(1) (declaring that “the court may make an order providing
for a child to be treated in law as the child of the parties to a marriage” if the surrogate mother was artificially
inseminated with either (1) the biological mother’s eggs or (2) both biological parents’ genetic material).
120
Surrogacy contracts are entirely prohibited in countries such as Austria, Egypt, France, Germany, Italy,
Netherlands, Norway, Spain, Sweden, and Switzerland. The countries such as Canada, Denmark, Hong Kong,
and Great Britain have national laws banning commercial surrogacy. But the countries like Ukraine and India
are providing very favorable conditions for commissioning couples that permit and encourage surrogacy. For a
helpful graphic depiction of the States‘ approach to surrogacy. See, Susan Markens, Surrogate Motherhood,
University of California, California (2007), pp. 28-29
121
See Section 2 (1), Surrogacy Arrangements Act, 1985.
122
Brinsden, Peter R., Gestational Surrogacy, Human Reproduction Update, 2003, Vol. 9, No.5, pp.483-491.

68
considering such treatment. This guides all the couples undertaking treatment through
surrogacy in the United Kingdom.

The Surrogacy Arrangement Act, 1985:

The Surrogacy Arrangement Act of 1985 sought to outlaw profit making agencies
from assisting in the creation of surrogacy arrangements. The Act makes it illegal and guilty
of an offence if the activity of surrogacy is done on commercial basis through payments,
wherein the payment is received by the person himself or another person. It is agreed
between them that payments will be made to the surrogate mother, because this payment to
the surrogate mother will be treated as compensation for the services she provides to the
infertile couple. However, any other person, company or agency that negotiates makes or
otherwise assists for payment in a surrogacy arrangement commits the said offence. It is also
a criminal offence in the United Kingdom to carry advertisements about surrogacy in any
newspaper etc. and to distribute such advertisements.

The provisions of Human Fertilization and Embryology Act, 2008 have been enforced
which has made amendments to the Human Fertilization and Embryology Act, 1990 and to
the Surrogacy Arrangements Act, 1985. Under this Act of 2008, a non-profit making body
will be allowed to make a not for profit charge for facilitating surrogacy arrangements and
compiling information, and they will be allowed to advertise those services for which they
make a charge. With the enforcement of this Act, unmarried and same sex couples will be
able to apply for parental orders123.

(i) Human Fertilization and Embryology Act, 1990:

It is imperative to remember that no matter what the genetic make-up of the child is,
the laws in United Kingdom sees the woman who carries and bears the child as the legal
mother. If she was married at the time of artificial insemination or the implantation of an
embryo, the law in United Kingdom recognizes her husband as the legal father of the child,
unless it is shown that he did not consent to the implantation of the embryo or the artificial
insemination.

Thus, under the laws in United Kingdom, the parental responsibility for the child rests
with the surrogate mother and, if she is married, with her husband unless it is shown that the
husband did not consent. This presumption may be rebutted by evidence that the
123
See Human Fertilization and Embryology Act, 2008

69
commissioning man is the genetic father. As the surrogate mother is recognized as the legal
mother, the Human Fertilization and Embryology Act, 1990 124 provides a procedure by which
the commissioning couple can acquire parental rights. The surrogate mother and the legal
father must give full and free consent for the parental order. Such consent is not effective
until the child is at least six weeks old. There are also other limits contained in Section 30 in
relation to obtaining parental orders. These limits are as follows:

a. The child is genetically related to at least one of the commissioning couple;

b. The surrogate mother has consented to the making of parental order (not
earlier than six weeks after the birth of the child);
c. The commissioning couple are married to each other and are both aged 18
years or above;
d. The commissioning couple have made the application within 6 months of the
birth of the child;
e. No money other than reasonably incurred expenses has been paid in respect of
the surrogacy arrangement unless authorized by the court;
f. The child is living with the commissioning couple; and
g. The commissioning couple is domiciled in the United Kingdom.

In other words, if all the conditions mentioned above are fulfilled, Section 30 enables
the court to order that the commissioning couple in a surrogate arrangement is to be treated in
law as the parents without their having to adopt the child.

Section 36 of Human Fertilization and Embryology Act, 1990 has introduced Section
1 A into the Surrogacy Arrangement Act, 1985 which provides that no surrogacy
arrangement is enforceable by or against any of the persons making it. Thus, surrogacy
contracts are unenforceable in the courts in United Kingdom. This means that the surrogate
mother cannot be compelled by the commissioning parents under any contractual provision to
hand over her child. Similarly, the commissioning parents cannot be compelled to hand over
any money, or recover any money paid to the surrogate mother under the terms of such a
contract or take responsibility for the child.125

Section 27 of Human Fertilization and Embryology Act, 1990 provides that in respect
of treatment which is regulated by the Act, the woman who is carrying or has carried a child
124
Section 30 of the Human Fertilization and Embryology Act, 1990
125
See Human Fertilization and Embryology Act, 2008

70
as a result of the placing in her of an embryo or sperm and eggs, and no other woman is to be
treated as the mother of the child. This is relevant where IVF or donor insemination is
involved. Where the commissioning couple wishes to assume parental responsibility, they
may seek a parental order from the court under Section 30 of the 1990 Act.

5.2.2 Virginia Surrogacy Law:

Virginia requires pre-authorization of a surrogacy contract by a court. If the contract
is approved, then the intended parents will be the legal parents. If the contract is voided, the
surrogate mother and her husband, if any, will be named the legal parents and the intended
parents will only be able to acquire parental rights through adoption. If the contract was never
approved, then the surrogate can file a consent form relinquishing rights to the child. But if
she does not, the parental rights will vary based on whether either of the intended parents
have a genetic relationship to the child, depending on the circumstances, they may need to
adopt in order to obtain parental rights. Notwithstanding all of the above, if the surrogate is
the genetic mother, she may terminate the contract within the first six months of pregnancy.

Virginia’s requirements for court approval include: a home study; a finding that all
parties meet the standards of fitness applicable to adoptive parents; the surrogate must be
married and have delivered at least one prior live birth; the parties must have undergone
medical evaluations and counseling; the intended mother must be infertile or unable to bear a
child; and at least one intended parent must be genetically related to the child. The intended
parents must accept the child regardless of its health or appearance. The surrogate retains sole
responsibility for the clinical management of the pregnancy.126

The court must appoint counsel for the surrogate and a guardian ad litem to represent
the interests of any resulting children during the approval proceedings. The court’s approval
of assisted conception under the contract is effective for twelve months. Compensation
beyond reasonable medical and ancillary costs is not allowed. Recruitment fees are
punishable as a misdemeanor, and the parties may collect damages from the facilitator or
agency. The law also provides for an allocation of costs when a non-validated contract is
terminated under various circumstances.

5.2.3 California Surrogacy Law:

California is one of the notable States in the USA as it has a ‘surrogacy friendly
jurisdiction’. In 1973, the Uniform Law Commissioners promulgated the Uniform Parentage

126
See Human Fertilization and Embryology Act, 2008

71
Act. It led to a revolution in the law of determination of parentage, paternity actions and
child support. A child whose mother was not married was an illegitimate child under the
common law. The US Supreme Court eliminated illegitimacy as a legal barrier in a number of
cases in the 1960’s and 70’s. The old-fashioned paternity actions simply did not respond to
these changes in fundamental law. The Uniform Parentage Act, 1973 was law for a new
generation. Section 2 of the Uniform Parentage Act, 1973 provides that the parent and child
relationship extends equally to every child and every parent, regardless of the marital status
of the parent.

In 1988, the Uniform Law Commissioners promulgated two other acts that deal with
issues of parentage. The Uniform Status of Children of Assisted Conception Act, 1988
provided rules establishing legal parentage for children conceived other than by sexual
intercourse and possibly carried by a woman other than the legal mother. It was a response to
the technologies of assisted conception, like in vitro fertilization and artificial insemination.
The second was the Uniform Putative and Unknown Fathers Act, 1988. It is a procedural act
that allows the identification of putative and unknown fathers and termination of their
parental rights.127

In 2000, the National Conference promulgated a modernized version of the Uniform

Parentage Act, which addressed technological changes, especially the development of DNA
identification, and incorporated and replaced the two 1988 Acts (Uniform Status of Children
of Assisted Conception Act and Uniform Putative and Unknown Fathers Act). In 2002,
further changes to the Uniform Parentage Act were promulgated, extending the Act to also
provide a balanced coverage to questions of parentage arising in non-marital circumstances.
The Uniform Parentage Act, 2000 continues to serve the purposes of the Uniform Parentage
Act, 1973, particularly the purpose of identifying natural fathers so that child support
obligations may be ordered.

California heads the way in terms of acceptability of surrogacy agreements and

upholds that Lesbian, Gay, Bisexual and Transgender (LGBT) individuals can also opt for
such a surrogacy arrangement. While the State has no statute directly addressing surrogacy,
California’s courts have used the State’s Uniform Parentage Act, 2000 (as amended in 2002)
to interpret several cases concerning surrogacy agreements.

127
See Human Fertilization and Embryology Act, 2008

72
 The provisions of the Uniform Parentage Act, 2000 confronts the complicated issue of
establishing legal parentage against the complications that technology provides. It brings
genetic testing into modern parentage actions in a manner that is efficient, but that preserves
due process rights for all concerned.

On the other hand, the influential cases in California regarding surrogacy rights have
been decided interpreting the Uniform Parentage Act, 2000. For Example, in Johnson v.
Calvert, the California Supreme Court decided that the intended parents in a gestational
surrogacy agreement (where the surrogate is not the biological contributor of the egg) should
be recognized as the natural and legal parents. The Court further decided that the person who
intended to procreate, i.e., the mother who provided her egg to the surrogate, should be
considered the natural mother. This also follows through to a couple who uses the services of
an Egg Donor.

In the 1994 case of Re Marriage of Moschetta, a California Court of Appeals

addressed the question of how to determine parentage when a child is conceived via
traditional surrogacy (in which the surrogate mother is the biological contributor of the egg)
and the child was born after the intended parents had separated. The Court held that the
intended father and the surrogate mother were the legal parents of the child, leaving the
intended mother without any parental rights.

In the case of the Marriage of Buzzanca, Luanne and John had an embryo genetically
unrelated to either of them implanted in a surrogate named Buzzanca. The couple separated
and John disclaimed any parental responsibility for the child. Ultimately, the Court found that
when a married couple intends to procreate using a non-genetically related embryo implanted
into a surrogate, the intended parents are the lawful parents of the child. When a married
couple consents to in-vitro fertilization by unknown donors and its subsequent implantation
into a surrogate, the couple is the legal parents of the offspring. In 2005, the California
Supreme Court decided three companion cases that concerned lesbian couples who had
reproduced via surrogacy, Elisa B. v. Superior Court 128, Kristine H. v. Lisa R.129 and K.M. v.
E.G. The Court held that, under the Uniform Parentage Act, two women can be the legal
parents of a child produced through surrogacy. This ruling presumably applies to all members
of the LGBT community.

128
117 P.3d 660 (2005)
129
117 P.3d 690 (2005)

73
5.2.4 Australian Surrogacy Law:
Like the USA, Australia has different regulations in different states. The
Commonwealth does not have constitutional power to legislate on surrogacy hence,
legislative power for this area remains with the States. There is no uniformity of regulations
throughout Australia. Some States have enacted legislations with different models being used
in different jurisdictions, and few States rely solely on the common law. The legislations
governing surrogacy is in operation in five Australian jurisdictions, namely, Queensland, the
Australian Capital Territory, Victoria, Tasmania and South Australia. In addition, legislation
was recently enacted in New South Wales. Likewise, legislation has been drafted in Western
Australia also. Similarly, legislation to amend the existing legislative framework has also
been drafted and introduced into the Parliament in South Australia.

The legislations prevalent in different States of Australia have some common

elements. They are as follows:

1. surrogacy agreements, whether commercial or altruistic are void and

unenforceable ;
2. entry into altruistic surrogacy is generally not prohibited ;
3. entry into a commercial surrogacy is prohibited ;
4. facilitating surrogacy for reward is prohibited ;
5. Advertising surrogacy services is prohibited ;
6. Providing technical services is sometimes prohibited ;

The survey of legislations available in various States of Australia shows that despite
the common themes in various statutes, there are also some important differences in the
regulatory regimes. The legislation in the Australian Capital Territory, the Parentage Act,
2004 is the most progressive of all the Acts passed till date because it facilitates practical
aspects of a surrogacy arrangement. If certain conditions are fulfilled, the commissioning
parents can make an application to the Supreme Court to become registered as child’s legal
parents. But the Queensland lies at the other end of the spectrum in as much as it prohibits
both commercial and altruistic surrogacy. This means that entry into an altruistic agreement,
or even an offer to enter such agreement, can expose an individual to criminal sanction.130

130
Section 3, Surrogate Parenthood Act, 1988 (enacted in Queensland); Section 59, Infertility Act, 1995
(enacted in Victoria); Section 4, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 H, Family
Relationships Act, 1975 (enacted in South Australia); Section 42, Parentage Act, 2004 (enacted in Australian
Capital Territory); Section 43, Assisted Reproductive Technology Act, 2007 (enacted in New South Wales)

74
 For the analysis of the threshold issue whether altruistic surrogacy should continue to
attract criminal sanctions, Lavarch Committee was constituted. It is expected that this
committee will undertake its review of the Surrogate Parenthood Act, 1988 (Queensland).
The Standing Committee of Attorney General in March 2008 recommended the
implementation of uniform surrogacy laws for entire Commonwealth of Australia. This is a
clear and deliberate policy shift towards regulating altruistic surrogacy arrangement.131

In the opinion of the researcher, there can be following 5 reasons for

decriminalization of altruistic surrogacy in Australia:

a. Lack of empirical evidence of harm to anyone because of altruistic

surrogacy;132
b. Lack of empirical evidence to prove exploitation of the surrogate133;
c. Lack of empirical evidence to prove the harm to the commissioning parents;134
d. Lack of empirical evidence to prove the harm to the surrogate child;135
e. Presence of positive relationships among the surrogate mother, commissioning
parents and agencies involved in arranging surrogacy.136

5.2.5 SURROGACY LAW IN INDIA:

How Surrogacy Is Regulated In India:

India system of surrogacy is much easier and with a very low pricing compared to
other nations. There large counts of intended parents who do commissioning for surrogacy
131
Brown Catherine, Willmott Lindy, White Ben, Surrogacy in Queensland: Should Altruism be a Crime?,
Bond Law Review, 2008, Volume 20, Issue 1, Article 1, p.5.
132
Section 4, Surrogate Parenthood Act, 1988 (enacted in Queensland); Section 61, Infertility Act, 1995
(enacted in Victoria); Section 7, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 G, Family
Relationships Act, 1975 (enacted in South Australia); Section 31, Parentage Act, 2004 (enacted in Australian
Capital Territory); Section 45, Assisted Reproductive Technology Act, 2007 (enacted in New South Wales).
133
But under Section 4, Surrogate Parenthood Act, 1988 (enacted in Queensland) altruistic surrogacy is
prohibited. But Section 10 G, Family Relationships Act, 1975 (enacted in South Australia) altruistic surrogacy is
illegal, but no penalty attaches for breach of this provision.
134
Section 3, Surrogate Parenthood Act, 1988 (enacted in Queensland); Section 59, Infertility Act, 1995 (enacted
in Victoria); Section 4, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 G, Family
Relationships Act, 1975 (enacted in South Australia); Section 41, Parentage Act, 2004 (enacted in Australian
Capital Territory); Section 43, Assisted Reproductive Technology Act, 2007 (enacted in New South Wales).
135
Section 3, Surrogate Parenthood Act, 1988 (enacted in Queensland); Section 59, Infertility Act, 1995 (enacted
in Victoria); Section 4, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 H, Family
Relationships Act, 1975 (enacted in South Australia); Section 42, Parentage Act, 2004 (enacted in Australian
Capital Territory); Section 43, Assisted Reproductive Technology Act, 2007 (enacted in New South Wales)
136
Section 3, Surrogate Parenthood Act, 1988 (enacted in Queensland); Section 60, Infertility Act, 1995
(enacted in Victoria); Section 6, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 H, Family
Relationships Act, 1975 (enacted in South Australia); Section 43, Parentage Act, 2004 (enacted in Australian
Capital Territory); Section 44, Assisted Reproductive Technology Act, 2007 (enacted in New South Wales).

75
normally choose India as their final destination. The reason for this is the surrogacy in India
is less cost effective when compared to foreign countries with the more flexibility in the
legalities concern with it, right from documentation to the judicial. The Supreme Court of
India, in 2002, declared about the legality towards commercial surrogacy and had been
permitted. This is also one more reason for intended parents’ tourism to India because this
consent had grown international confidence level.

Intended couple/couples generally visit India because of the more opportunity

available for the treatment of surrogacy. It even ends the search of surrogate who shall give
birth to their child. They come with huge imaginings and expectations for enjoying the
parenthood and its happiness. The general process followed by the intended parents from the
other nation is through internet. After finding the exact clinic of surrogacy in India, they
contact them and get in touch with them directly rather than finding any agency. Sometimes it
does happen in the findings that they meet agents or the hospitals with no complete
information given by them, here they lose their time and money both. Indian surrogacy law
centre is India’s finest authorized mentor with proficient and expertise in national and
international surrogacy laws. India has been pioneers and very basic in the laws relating to
modern human reproductive sciences and techniques. This has made India to help hundreds
of couple without any child almost from all over the world to find the simplest possible walk
through of the dark and more emotionality towards surrogacy, egg donation and embryo
donation referring the surrogacy laws. Excellent medical facilities improved medical
techniques convenience in approach, and availability of more information surfing through the
Internet.137

As the time had passed, India has been pioneers and very basic in the laws relating to
modern human reproductive sciences and techniques. This has made India to help hundreds
of couple without any child almost from all over the world India has designated itself as an
initial, feasible and easily available market for International Surrogacy Arrangements. The
procedural fact of surrogacy is on the current factors is no more closed and complicated as it
was in olden days. Now we find lots of information shared by the ART through internet.

Becoming so desirous in reproducing the child is a very common and a basic need of
human race and religion. We find many sad reasons where the parent /parents are denied with
137
Section 3, Surrogate Parenthood Act, 1988 (enacted in Queensland); Section 59, Infertility Act, 1995
(enacted in Victoria); Section 4, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 H, Family
Relationships Act, 1975 (enacted in South Australia); Section 42, Parentage Act, 2004 (enacted in Australian
Capital Territory); Section 43, Assisted Reproductive Technology Act, 2007 (enacted in New South Wales)

76
the pleasure of parenthood. These reasons are varied like biological, physical, etc. The
innovative improvements in the technologies related to reproductive system had crossed all
the obstacles for surrogacy as they were in the earlier days. Going through the years together,
now we find that the surrogacy has become a very preferable and one of the easiest method or
mode you can say to expose the new baby born to this surprising world. India, with its special
consideration and the interest has seen a drastic developing change in the recourse to
surrogacy. This, in near future, could be called as an ideal technique for parenthood. Now the
surrogacy treatment has evolved to a stage that is safe and secured in bringing the child to
show this beautiful world. We find the huge rise in the recourse for surrogacy. This surrogacy
is now of course one of the ideal and most developed method run especially for any couple
without child so that they can enjoy the parenthood.

5.3. INDIAN COUNCIL FOR MEDICAL RESEARCH, 2005 GUIDELINES:

The ICMR Guidelines, 2005 was adopted with the main objective to provide ethical
guidelines for regulating ART clinics in India. However, these guidelines also contain certain
provisions for dealing with surrogacy. The guidelines defines surrogacy as 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 the genetic parents
for whom she is acting as a surrogate . It states that, surrogacy by assisted conception should
normally be considered only for patients for whom it would be physically or medically
impossible/ undesirable to carry a baby to term. ART used for married woman with the
consent of the husband does not amount to adultery on part of the wife or the donor. However
ART without the husband‘s consent can be a ground for divorce or judicial separation.138

The guidelines given by Indian council for medical research for surrogacy are:

1. Surrogacy by assisted conception should normally be considered only for

patients for whom it would be physically or medically impossible/ undesirable
to carry a baby to term.
2. Advertisements regarding surrogacy should not be made by the ART clinic.
3. Responsibility of finding a surrogate mother should rest with the couple, or a
semen bank.
4. Surrogate mother would also be entitled to a monetary compensation from the
couple for agreeing to act as a surrogate.
138
Id. R.3.16.2.

77
5. ART clinic must not be a party to any commercial element in donor
programmes or in gestational surrogacy.
6. All the expenses of the surrogate mother during the period of pregnancy and
post-natal care relating post to pregnancy should be borne by the couple
seeking surrogacy.
7. A third-party donor and a surrogate mother must relinquish in third writing all
parental rights concerning the offspring.
8. A child born through ART shall be presumed to be the legitimate child of the
couple, born within wedlock, with consent of both the spouses, and with all
the attendant rights of parentage, support and inheritance.
9. Children born through the use of donor gametes shall not have any right
whatsoever to know the identity (such as name, address, parentage, etc.) of
their genetic parent(s).
10. ART used for married woman with the consent of the husband does not
amount to adultery on part of the wife or the donor. However without the
husband’s consent it can be a ground for divorce or judicial separation.
11. Conception of the wife through AIH (Artificial Insemination with husband
sperm) does not necessarily amount to consummation of marriage & a decree
of nullity may still be granted in favor of the wife on the ground of impotency
of the husband or his willful refusal to consummate the marriage.
12. Sec.112 of The Indian Evidence Act, 1872, says that a child born within 280
days after dissolution of marriage (by death or divorce) is a legitimate child
since that is considered to be the gestation period, But a child born to a woman
artificially inseminated with the stored sperms of her deceased husband must
be considered to be a legitimate child notwithstanding the existing law of
presumptions under Evidence Act.

78
 CHAPTER VI

Judicial Response: As Global Perspective

Disturbing stories on surrogacy are hitting the headlines on a regular basis at the
moment, all across the globe. In 2012, an Australian couple left behind one of the twins born
to an Indian surrogate mother because they could not afford to bring up two children back
home. Earlier in 2010, a German couple, Jan Balaz and Susan Lohle, had to wait for two
years before they could take their twin babies home. Their twin sons, Nikolas and Leonard,
were trapped in a citizenship limbo ever since an Indian surrogate mother gave birth to them
in February 2008139. On 11th July 2015 a news came up from UK where a surrogate mother
who changed her mind about handing over the child she carried to the gay couple who had
paid £9,000 „expenses‟ for her to do so. The baby boy is not genetically related to her but she
is desperate to keep him. And she holds the parental rights – for now. A court battle is about
to ensue to determine who holds the cards in this case140. The media was flocked with the
news of the plight of baby Gammy, born to a Thai surrogate mother and abandoned by his
Australian parents after they discovered he had Down syndrome141. As all the countries are
facing diverse problems related to surrogacy arrangements, let us consider the judicial
pronouncements from various countries.

6.1. United Kingdom

In United Kingdom, commercial surrogacy arrangements prohibition has proved to be
the most controversial issue hence attracting most of the legal battles. This first case relates
to arising from an application for a Parental Order under the Human Fertilization and
Embryology Act 1990 involving a foreign surrogate mother 142. A couple had made a

139
IANS, India To Have New Surrogacy Law Soon, ZEE News, November 16, 2017
140
Jo Macfarlane, I’ll Never Give Up Burger King Baby To His Gay Fathers: Surrogate Mother Reveals
Her
Heartbreaking Story That Lifts The Lid On Britain's Chaotic And Cruel Baby Trade, The Mail, 11 July 2015
141
Dean, Sarah; Cheer, Louise; Mills, Daniel, ‘I will take care of Gammy on my own:' Thai surrogate
mother
says she will take care of the critically-ill Down's syndrome baby as fundraising for his medical care tops
$155,000, Daily Mail Australia, 4 August 2014.
142
X & Y, EWHC 3030 (Fam), 2008

79
surrogacy arrangement with a Ukranian woman who gave birth to twins using anonymously
donated eggs fertilized by the male applicant’s sperm. Hedley J .made this judgment in open
court so as to highlight the problems that the respective surrogacy and immigration laws of
England and Ukraine created which resulted in a position where the children were ;

“marooned stateless and parentless whilst the applicants could neither remain in the
Ukraine nor bring the children home143”

In deciding the application Hedley J reviews the relevant provisions of the Human
Fertilisation and Embryology Act 1990, particularly the issue of the consents required by the
surrogate parents. He concludes that consent had been lawfully given. He also considers
whether the payments made to the surrogate parents fell within the restrictions of the 1990
Act. He concluded, albeit uneasily, that the payments were acceptable. He therefore made a
parental order as being in the best interests of the welfare of the child before making
comments on the legal difficulties attached to overseas surrogacy arrangements.

In another case where the commissioning parents couldn’t provide the written consent
of the surrogate mother as per the requirement of the provisions of the Human Fertilisation
and Embryology Act 1990144, Baker J dispensed with the need to obtain the surrogate
mother's consent, on the basis of the children's welfare being the paramount consideration of
the court and therefore requiring the making of a parental order; and stating
“it is only when all reasonable steps have been taken to locate her [the surrogate
mother] without success that a court is likely to dispense with the need for valid consent145.”

The judge also stated: “Although a consent given before the expiry of six weeks after
birth is not valid for the purposes of section 54, the court is entitled to take into account
evidence that the woman did give consent at earlier times to giving up the baby. The weight
attached to such earlier consent is, however, likely to be limited. The courts must be careful
not to use such evidence to undermine the legal requirement that consent is only valid if
given after six weeks.”

With regard to the payment made to the surrogate mother, who was accepted as being
beyond the reasonable expenses permitted by section 54, the court was under a duty to place

143
Ibid
144
Sec 54
145
D&L, EWHC 2631 (Fam) 2012

80
the welfare of the children first. Baker J, therefore, retrospectively authorised the payments
made by the applicants in this case.

In another recently reported case is about a surrogacy agreement entered in Russia 146.
In this case the sperm was donated by the first applicant of the parental order and the egg was
taken from an anonymous Russian female. Another married Russian female acted as a
surrogate mother to the commissioning couple from UK. In this case Thesis J considered the
question of whether or not the payments made in this case fell foul of the requirements of
Sec. 54(8) HFEA 2008 and the manner in which the court should exercise its discretion in
respect thereof. She noted that the court was unaware of any previous case involving Russia
and that there were therefore no comparators.

In respect of the sum paid to the agency having had expert advice that under Russian
law, payments to surrogates were not regulated and that the amount paid to the surrogate did
not appear to be unusually high - and was indeed less - than payments made in similar
contexts and, having formed the view that there was no evidence that the will of the
respondents had been overborne by the offer of payment, she was satisfied that the payments
made were not so disproportionate as to affront public policy. As to the issue of whether the
applicants had acted in good faith and without moral taint, she bore in mind Hedley J's
observations in Re X and Y 147 for the court to be astute not to be involved in buying children
overseas. In this case, all the evidence pointed towards proper steps having been taken by the
applicants and of there being no suggestion of bad faith or moral taint148.

Lack of recognition of foreign surrogacy laws can raise difficulties when the
commissioning parents attempt to return to the UK with the child, which they must do in
order to apply for a parental order under Human Fertilisation & Embryology Act 2008, Sec.
54(4). Most countries predicate a child's nationality on at least one of his/her parents having
that nationality. If the country where the surrogacy arrangement took place recognises the
commissioning parents as the legal parents, it will not give the surrogate parents' nationality
on the child. Simultaneously, if the UK does not identify the commissioning parents as the
legal parents, the child cannot obtain British citizenship and by extension, entry clearance
into the United Kingdom. Unless granted special leave to enter by the Home Secretary, a

146
Re C (A Child), EWHC 2413 (Fam), 2013
147
Supra note 4
148
Available at. http://www.familylawweek.co.uk/site.aspx?i=ed115569

81
child could therefore be left stateless and a legal orphan 149, even if that child is the biological
offspring of one or both of the commissioning parents. Another reported case raised these
issues. In this case twins were born in May 2009 conceived as a result of commercial
surrogacy agreement between the applicants and a married couple in India. The egg was from
an anonymous donor fertilised by the sperm of the male applicant. The children remain in
India150. The difficulty arose over where evidence suggests that such an order is likely to be
granted? The matter was listed before Hedley J for Directions but the application could not be
progressed as the children were not in the country. The children cannot be said to be
habitually resident here and thus the court lacks jurisdiction. In addition, a welfare decision is
required as part of the s 30 application and the Guardian cannot complete her assessment
until she has seen the children living with the parents in this country. The parties invited the
court to consider indicating its view as to the likelihood of an order being granted. Hedley J
expressed considerable disquiet about doing that for the following reasons151:

Firstly, jurisdiction;

Secondly, there remain outstanding welfare enquiries and invitation to the court to
exercise its jurisdiction under Sec. 30(7) to approve certain payments under the agreement;

Thirdly, the court must be careful not to usurp the function of the executive;

Fourthly, giving advisory opinions are alien to the traditional practice of the court;

Fifthly, the court is still at a comparatively early stage of its development in dealing
with these foreign commercial surrogacy agreements. The need to obtain orders under Sec.
30 is only gradually becoming appreciated.

Hedley J concluded that the court should say nothing in its order about the probable
outcome of Sec. 30 application however he did make obiter comments about the case. He
made it clear that whether the entry clearance office finds these comments helpful is a matter
for them. The case was generally adjourned with liberty to restore. If and when the children
enter the country, and only then can the court proceed further with the application.

Another interesting case came up before the courts of UK where the parental order
was issued in the name of commissioning mother and the deceased father of the child born
149
Supra note 4
150
Re K (Minors), EWHC 1180, 2010
151
Ibid

82
out of surrogacy arrangement held in India. In this case the mother was not proved to be the
biological mother of the child but the father was biologically related to the child. The
application for parental order was made duly but the father deceased before the parental order
was issued152. In relation to Sec. 54 (4) (a) and (5), the crucial issue was whether the word
'applicants' required both applicants to be alive when the order was made. Counsel for the
applicant wife and the applicant husband's estate submitted that the court should adopt a
purposive approach so that Sec. 54 (4) and (5) were construed in a way that enabled the
common intention of the applicants to be met and an order made which was obviously in the
best interests of the child, the child's welfare being the court's paramount consideration.
Granting the order, Theis J held that the requirements were met. In the particular
circumstances of this case the interference cannot be justified as no other order can give
recognition to B's status with both Mr and Mrs A in the same transformative way as a
parental order. To interpret section 54(4) (a) and 54(5) in the way submitted will not offend
against the clear purpose or policy behind the requirements listed in section 54. It will not
pave the way for single commissioning parents to apply for a parental order or orders being
made in favour of those under the age of 18 years153.

Although various issues for surrogate mothers, commissioning parents, and the
resultant children, as well as third party brokers but the court has tackled these problems with
a number of creative solutions in order to safeguard the welfare of the child.

6.2. Australia
The Chief Justice Diana Bryant of the Family Court has warned Australian laws on
international commercial surrogacy are being breached, saying the issue is a ticking time
bomb as children born from international surrogates reach maturity in Australia 154. She has
also called the current lack of legislation as reckless.
Entering into commercial surrogacy arrangements is considered as a serious criminal
offence under the laws of most Australian jurisdictions. The penalties differ between the
jurisdictions in which entry into a commercial surrogacy agreement is criminalized. In every
jurisdiction except Tasmania, this offence may be penalized with imprisonment. Yet the
Family Court has seen an increase in applications for parenting and other orders under the
Family Law Act 1975 arising from commercial surrogacy arrangements, mainly involving
152
A vs P, EWHC 1738 (Fam), 2011
153
Ibid
154
Suzanne Smith and Samantha Hawley, Australian surrogacy laws a ticking time bomb, children risk
growing up in limbo, senior judges warn, The World Today , 9 Oct 20014

83
children from Thailand and India, where such arrangements are, as yet, permitted by law.
Australia has been in international spotlight in 2014 by the case of baby Gammy.

Gammy was born to a Thai surrogate who was paid by Australian intended parents.
Gammy was born with down syndrome and a hole in his heart requiring extensive medical
treatment. The intended parents chose to take Gammy’s healthy twin sister back to Australia,
leaving Gammy with his surrogate. This case caused international concern, raising awareness
of the lack of regulation of international surrogacy arrangements and highlighting the ethical
considerations involved in the practice of surrogacy. Eight months after the commencement
of the Surrogacy Act 2010 (NSW) on 1 March 2011, Jennifer and Adam moved an
application for „parentage order‟ from the Supreme Court of New South Wales. This was the
first hearing of an application to transfer the parentage of a child to another person 155. In the
present case, the Court was satisfied with most of the preconditions except for one i.e.
consent of the surrogate parents. The Court found that there was no evidence before it as to
whether there was, in the present circumstances, any information registrable under the
Assisted Reproductive Technology Act 2007 (NSW). As that precondition is non-mandatory,
it was nevertheless open to the Court to make a parentage order if it was satisfied exceptional
circumstances justified doing so156. In the absence of that evidence, the Court did not make
the parentage order at the hearing but instead indicated that it would be prepared to make
such an order upon being provided with evidence of informed consent, given freely and
voluntarily, in the form described above, together with evidence as to any information
registrable under the Assisted Reproductive Technology Act 2007(NSW), as noted earlier.

On 4 May 2012, the New South Wales Supreme Court found for the first time in
Australia that a same-sex couple to be the parents of a baby that was born through a
surrogate157. In the present case the commissioning parents had only an oral arrangement for
the surrogacy but, an affidavit from the birth mother was tendered proving her consent to the
two men being declared the parents and the birth mother agreeing to no longer be recognised
on the birth certificate. Taking the whole scenario in account the court adopted a very flexible
approach towards the case leading to approval to the application for parental orders. This
decision was largely applauded internationally.

155
AP v RD & Anor , NSWSC 1389; BC201108969, 2011
156
Assisted Reproductive Technology Act, 2007 (NSW), Sec 18 (2)
157
MM and KF re FM, NSWSC, 445, 2012

84
 Section 60HB of the Family Law Act 1975 recognises orders of state and territory
courts that transfer the legal parentage of children born as a result of surrogacy arrangements
for the purposes of legal proceedings under the Family Law Act, but it remains an offence in
New South Wales and Queensland for residents to enter into commercial surrogacy
arrangements or to enter into overseas commercial surrogacy arrangements. Irrespective of
these legislative provisions, the Family Courts continues to be faced with situations where
commercial surrogacy has occurred and parenting orders are being sought. There is an
increasing trend for Australians to travel abroad to countries such as Thailand, India and the
US to engage surrogate mothers in commercial arrangements. The Family Court is being
forced to respond to this reality and to the dynamics which are occurring within families to
ensure the best interests of the children are met158.

The recent decision of Ellison and Anor v. Karnchanit dealt with this very issue. It
concerned the parentage of 8 week old twins brought from Thailand to Australia after their
father, Mr. Ellison, and his wife, Ms. Solano entered into a commercial surrogacy
arrangement with birth mother in Thailand. The children’s birth mother was paid $7,350 to be
the surrogate mother of the children. Mr. Ellison’s sperm was used to fertilise the egg of an
unknown donor, sourced through a Thai fertility clinic. The embryos were implanted in the
birth mother and she in accordance with the arrangement entered into with Mr. Ellison and
Ms. Solana, put the children in the sole care of Mr. Ellison and Ms. Solano upon their birth.
This case involved issues about the admissibility of DNA reports provided by Mr. Ellison as
to the paternity of the children and the Court had to consider whether or not to make a
declaration of parentage in favour of Mr. Ellison. The Court ultimately found that a
declaration of parentage would recognize the reality of the children’s lives and where Mr.
Ellison stands in relation to their biological identity and found that it was in the children’s
best interests to make that declaration.

Recently, in Gough v. Kaur159 , a couple entered into a commercial surrogacy

arrangement in Thailand. Notwithstanding that DNA testing indicated that the applicant
husband was the biological father of the child, relying on s 60H (1) of the Family Law Act,
MacMillan J was of the opinion that he could not be regarded as a parent under the Family
Law Act. However, in Ellison v. Karnchanit160 , Ryan J adopted a different approach. Her

158
Available at. https://www.wattsmccray.com.au/blog/commercial-surrogacy-familydivorce-law-next
159
Fam CA 79, 2012
160
Supra note 21

85
Honour concluded that where parties had entered into an international surrogacy arrangement
and the surrogate was single, the provisions in the Family Law Act relating to the parentage
of children born as a result of assisted conception procedures (s 60H) as well as those
specifically designed for children born under surrogacy arrangements (s 60HB) do not apply.
However, relying on the interests of the child, Ryan J made an order declaring the applicant
biological father of the child.

After considering the above case law in Australian it is very clear that Australia needs
a uniform legislation throughout the country. Moreover the three-parent and four-parent
families must be brought under the protective umbrella of the law. To better safeguard
children's interests, legislation must not only extend to the recognition of diverse family
forms, but also encompass the capacity and flexibility to regulate and accommodate these
complex relationships on breakdown. As we move through the second decade of the 21st
century, embracing diverse family forms that go beyond the two-parent model is one of the
most significant challenge confronting Australian family law, but one that needs to be
faced161.

6.3. United States of America

As discussed earlier in chapter 3, the legislations in all the states of America vary
from each other. Some states ban surrogacy outright. Some like New York ban paid
surrogacy but allow a woman to offer her services as a volunteer. Some like Oregon and
California are surrogate-friendly. But most states have no pertinent laws at all. The first case
acting as catalyst for the law makers in America was Baby M’s case. The facts of the case
were that William Stem, the natural father of Baby M, and his wife brought suit against Mary
Beth Whitehead, the surrogate mother, to enforce a surrogacy contract entered into with her
and her husband, Richard. Whitehead acted as the surrogate and was impregnated using the
sperm of William Stem, the commissioning father. The surrogate gave the baby to the
commissioning parents after birth but later on requested to keep the baby for a week. The
Sterns complied with this request and allowed Mary Beth to keep Baby M for that time. She
then decided to keep the baby and refused to return Baby M to the Sterns, who then sued to
enforce the contract. In the subsequent litigation Judge Sokow rejected arguments attacking
the validity of the surrogacy contract and ruled for the Sterns in holding the contract to be
enforceable consistent with the best interests of the child. One of the arguments by the

161
Available at.https://aifs.gov.au/publications/families-policy-and-law/10-gay-andlesbian-parenting
legislative-response

86
Whiteheads claimed that the concept of surrogacy was contrary to New Jersey's adoption
laws. Judge Sokow rejected this position:

“It is this court's view that the laws of adoption in this state do not apply to surrogacy
contracts.”27

This was the identical position taken in Surrogate Parenting Assoc., Inc. v.
Commonwealth28. But later on the decision was reversed by the Supreme Court of New
Jersey unanimously. In reversing Judge Sokow's ruling, the New Jersey Supreme Court did
not technically rule on all surrogacy arrangements, but, rather, found the payment of money
to a surrogate mother to be illegal, perhaps criminal, and potentially degrading to women.
The judges added that-

“We find no offense to our present laws where a woman voluntarily and without
payment agrees to act as a 'surrogate' mother, provided that she is not subject to a binding
agreement to surrender her child”.

The court's only woman, Justice Joyce Kennard, wrote in a sharply worded dissent:

“A pregnant woman is more than a mere container or breeding animal; she is the
conscious agent of creation no less than the genetic mother, and her humanity implicated on a
deep level. Her role should not be devalued.”

The question has been raised whether laws enacted decades ago to deal with the issue
of adoption should now be used to resolve issues on medical procedures and contractual
arrangements unknown and not possible when the adoption laws were passed162.

In another reported case of Helen Beasley 163, she was a 26 year old British woman
who was hired to carry to term a child intended for a California couple for nearly $20,000.
Beasley discovered 8 weeks into her pregnancy that she was carrying twins. Her contract
with the couple stipulated that she would undergo a selective reduction if she became
pregnant with more than one fetus. Upon learning that about the twins, the couple arranged
for Beasley to reduce the number of fetuses by one. Beasely refused on the grounds that she
was too far into the pregnancy to undergo the procedure. Effectively, these actions could have

162
Noel P. Keane, Legal Problems of Surrogate Motherhood, 1980 S. ILL. U. L.J. 147, 152, 1980
163
Catherine London, Advancing a Surrogate Focused Model of Gestational Contracts, 18 Cardozo J L
&
Gender 391

87
amounted to the couple requiring an abortion of an unwilling mother. The surrogate mother
acknowledged that she has no legal rights to the children, but now does not want the intended
couple to have them.

After Wheeler and Berman asked Beasley for $80000 in expenses for allegedly
breaking their contract, Beasley filed a civil lawsuit asking for damages for emotional distress
and breach of contract. At the same time, she filed in the family court for Wheeler and
Berman’s parental rights to be revoked so that she could put the twins up for adoption. The
twins were eventually adopted by another couple. The Californian court ordered Wheeler and
Berman to pay Beasley USD 6,500.

In the year 2011 came up a scam in USA named baby selling ring.164 In this case, a
California attorney who was widely known as a specialist in reproductive law plead guilty to
conspiracy to commit wire fraud involving the sale of babies to one dozen couples. They used
to recruited women to travel to Ukraine to be implanted with embryos. Once the carrier
woman entered her second trimester of pregnancy, Erickson and two others would try to sell
the yet-born babies by telling prospective parents that a couple that originally intended to
adopt the baby backed out of the deal. Erickson would then charge the new couple over
$100,000 for the adoption. This was an example of exploitation 165
of mismatch between
surrogacy and adoption law between the United States, California specifically and Ukraine.

In another landmark case MercyCare Ins. Co. v. Wis. Commr of Ins, Supreme Court
of Wisconsin the question of insurance of the surrogate mothers was answered. In this case
Stephanie Lehr agreed to act as a gestational surrogate without compensation. In her state,
surrogacy compensation is illegal. Stephanie’s insurer denied her claims for maternity
benefits, arguing that surrogate mothers were not covered under the plan. The court decided
in the favour of the surrogate mothers and asked the insurers to cover surrogate pregnancies
where the insured’s plan provides maternity benefits. It focuses on the pregnant surrogate’s
existing health insurance coverage; rather than the policy of the intended parents 166.
Wisconsin Supreme Court ruled that-167

164
Available at. http:// ab- cnews.go.com/US/attorney-pleads-guilty-baby-sellingring/story?
id=14274193.
165
N.W.2d, 785, Wis. 2010
166
Available at. https://paganolawblog.wordpress.com/2018/03/09/surrogacy-exclusionsin-health-
insurance
policies/
167
Supra note 32

88
 “Insurance companies that cover the health care costs of pregnancy must do so no
matter what a woman’s reasons are for wanting to become pregnant.”

It concluded that the parties ultimately disputed the meaning of the statue’s second
sentence:

“Coverage required under this subsection may not be subject to exclusions or

limitations which are not applied to other maternity coverage under the policy.”

The Court pointed out that it is clear from that sentence that an insurer may exclude or
limit some aspects of maternity coverage. But whether this sentence permits the exclusion of
all maternity services to a subgroup of insured’s based on the fact that the insured is serving
as a surrogate mother is not readily apparent from the text.
In the recent documentary film Made in India 168, the filmmakers followed an
American couple, Lisa and Brian Switzer, who sold their house and spent their savings to go
through a surrogacy process in India. The Switzers could not afford the cost of surrogacy in
the United States also decided to enter into an international surrogacy arrangement facilitated
by Planet Hospital, a California based surrogacy broker.169 The surrogate, Aasia Khan, a 27-
year-old Muslim woman living in the Mumbai slums, became a surrogate to provide for her
three children and thereby balance the financial instability of her husband's mechanic
business. She signed the agreement with the surrogacy clinic Rotunda without informing her
husband. She did not appear to understand the IVF procedure and thought it was comical that
a baby could be created “without a man.” Intermediaries told the Switzers that Aasia was paid
$7,000, although she was actually promised around $2,000. Aasia carried twins for the
Switzers successfully, yet she felt it was unfair that she was not paid more for carrying two
babies instead of one. Aasia met with the Switzers to solicit their goodwill in providing
additional compensation, despite a contract prohibiting her from such action. The Switzers
promised Aasia additional compensation.

6.4. France
Way back in 1991, even before any legislative appeal, in a historic decision at the
Plenary Assembly on May 31st the French Court of Cassation condemned the practice of
surrogacy, as contrary to the inalienable principles regarding human body and the conditions

168
Rebecca Haimowitz & Vaishali Sinha, Made In India, 2011
169
Available at. https://paganolawblog.wordpress.com/2018/03/09/surrogacy-exclusionsin-health-insurance
policies/

89
of human beings170. As it would be useless to condemn the practice while still validating its
consequences, the same decision refused the adoption of the child by the spouse of the father,
since this would be misusing the institution of adoption. France's Supreme Court has
outlawed surrogate motherhood, stating that it violates a woman's body and improperly
undermines the practice of adoption. In a ruling issued, France's highest court, the Court of
Cassation, endorsed the arguments of the nation's solicitor general that the human body is not
lent out, is not rented out, and is not sold. The court also found the practice illegal because it
was a subversion of the institution of adoption. The ruling came after testimony by Jean
Bernard, chairman of the National Committee on Ethics, who argued that adoption must be
encouraged when there are thousands of orphans waiting throughout the world. Certainly, it
is necessary to fight the terrible unhappiness of sterility, but there are other solutions, Mr.
Bernard told the court171.

France's highest court has denied French citizenship to 10year-old twins born to a
French couple using a surrogate in the USA, reaffirming the country's ban on surrogacy. In
the present case Sylvie and Dominique Mennesson decided to enlist the help of a surrogate
from California after Mrs. Mennesson discovered she was unable to have children. The
couple used Mr. Mennesson's sperm and a donated egg resulting in the birth of twins in 2000.
Although the children have US citizenship, the couple has since struggled in a legal battle to
have their children recognised as French citizens172.

The French Supreme Court, the Court of Cassation, ruled that a decision of a
Californiana court to the effect that the Mennessons were the legal parents of the children
went too far. It followed a lower court's ruling that removed the children from France's civil
registry. Being listed on the registry is a requirement when obtaining identity documents and
French citizenship. The Court did say, however, that nothing prevented the children living
with the Mennessons in France.Lawyers for the couple attempted to argue that the twins
should remain in the civil registry as it was in the superior interest of the children. The Court
found that this would, however, conflict with French laws and said its decision did not
infringe upon the right and respect of the private and familial life of these children 173. The

170
Cass. ASS. plén., 31 mai 1991, no 90-20.105
171
Steven Greenhouse, French Supreme Court Rules Surrogate-Mother Agreements Illegal, The New York
Times, June 2, 1991
172
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policies/
173
Ibid

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French Court of Cassation confirms its rejection of transcribing these acts on French civil
registers and its‟ rejection to establishing a status of parentage possession 174. As it is contrary
to the principle of the inalienability of the person, a cardinal principle of French law, to
produce effects to any agreement related to gestational surrogacy on account of another party,
as null and void and contrary to public policy under articles 16-7 and 16-9 of the Civil Code.
This would result in French legislation designating a woman who would not have given birth
to the child as a Mother. Yet, the only way to attribute the parentage of a child to a woman
who did not carry him is by adoption ordered by a court and, precisely such an adoption is
not realistically feasible as it would be considered as a misappropriation of the institution.
The French ruling highlights the legal uncertainty couples face due to the varying legal status
of surrogacy internationally. Both altruistic and commercial surrogacy agreements are
prohibited under France's civil code on parenting. Subsequently the French Court of
Cassation takes position opposing the establishment of parentage of these children in regard
to the biological father due to fraud committed pertaining to the applicable law committed by
the latter. On April 6, 2011, the Supreme Court decided that-

“the state of positive law, it is contrary to principle of the unavailability of the status
of persons, basic principle of French law, to ensure effect, with regard to affiliation, an
agreement for gestational account of others which, were it lawful abroad, is void of public
order nullity under Articles 16-7 and 16-9”

In both the cases, the French nationals who opted for Indian surrogate mother
requested the transcript of the register for the French civil status, birth certificates for children
issued in India, and mentioning that these children were from an Indian woman and French
applicant. One of the two men had encountered a refusal to appeal court of Rennes, while the
other, a few weeks apart, had obtained the transcript from the same court. Finally, the
Supreme Court had to consider the plea, whereby the child's interest in the meaning of Article
3, & 1, the Convention on the Rights of the Child, or respect for private and family life under
Article 8 of the European Convention on Human Rights and Fundamental Freedoms, would
command the recognition in France on French registers. In the judgments of 2011, it had been
held, in respect of children conceived in the United States that the refusal of recognition in
France of marital status does not deprive them of their affiliation under foreign law nor
prevented them from live in France with their intended parents. The judgments of 2013,
indicating that in the presence of fraud these principles cannot be usefully invoked go further.
174
Cass. 1re civ., 6 avr. 2011, n° 09-66.486, 10-19.053

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Indeed, uphold the practical situation of children involved in all cases would deprive of any
effectiveness not only the provisions of domestic law but also those issued by other
international conventions designed to protect children from trafficking, particularly in
adoption175. In spite of the Taubira Circulaire of January 25, 2013, The French Court of
Cassation once again rejects the transcription on French civil registrars of the birth
certificates from two children born to surrogate mothers in India. The Court of Cassation in
France examined appeals relating to two children with French fathers, born in Russia via
Gestational Surrogacy. These procedures were carried out abroad to circumvent the ban
imposed the French Law. On 2014 the Court of Appeal in Rennes, refused civil registration
for the first child, but granted it to the second on December 16, 2014. Until this point, the
Court of Cassation, France’s highest Supreme Court had rejected appeals to register children
born to surrogate mothers abroad, in its civil registries. In its judgment of June 16, 2014 on
the Mennesson and Labassee cases, the European Court of Human Rights condemned France
of violating children’s right to privacy. The Court held that;
“thereby preventing not only the acknowledgement but also the establishment of
parentage in regard to their biological father, France has gone beyond what is permitted by its
margin of appreciation’176.

The Court concluded that the children’s rights with respect to their private lives had
been breached, in violation of Article 8 of the European Convention on Human Rights. The
grounds invoked were the confusing uncertainty about the possibility of being able to receive
the French nationality and the ability to inherit from their parents, as purchasers of
Gestational Surrogacy. Regarding the issue of nationality, children born via gestational
surrogacy always have a nationality, generally the one of the country in which they were
born. Then, when they arrive in France, the French nationality can requested and obtained.
Before 2013, attribution of French nationality was obtained after five years of residency.
Since January 2013, the Taubira Circulaire now applies and the French nationality for the
children is granted in the name of the French nationality of their parents, purchasers of
gestational surrogacy177. The inheritance issue has been resolved by a letter written in April

175
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insurance
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176

? Available at. http://www.alliancevita.org/en/2015/06/jurisprudence-by-the-frenchcourt-of-cassation-for

gestational-
surrogacy/
177
Ibid

92
13, 2015 by the Civil Affairs and Seals Directorate (DACS) to the president of the Superior
Council for Notaries (Conseil Superieur du Notariat) recognizing children born through GS
as legitimate heirs. This letter sent to the notaries clarifies that the mere fact that these
children were born through gestational surrogacy cannot at the outset lead the notary to
exclude them as heirs of their parents’ estate, provided that the parentage with the latter can
be proven by their foreign birth certificate even if the transcription of those acts was not
registered in French civil registrars178.

6.5. Italy
Italy has shown rigidity in respect to surrogacy arrangements. The Italian legal system
still shows a negative attitude toward the conclusion of such agreements, which can be
deducted both from case law and from the regulatory level. In the very first case 179 before the
Italian courts, a couple contracted surrogacy against a compensation of ITL 15 million. In
addition to this they agreed to pay a fixed monthly amount along with accommodation during
the pregnancy. And the surrogate agreed to relinquish all her rights in the child after birth of
the commissioned child. But later on she refused to do so. The commissioned parents filed a
suit in the district court of Monza for enforcement of the contract and custody of the child but
the court turned down there case and declared the agreement to be void, pursuant to article
1418 of the Civil Code in conjunction with article 1346, due to the unlawfulness of the
object, in fact it was both illegal and impossible 180. The judges also stated the contrariety of
surrogacy agreements to the principles contained in articles 2, 30, and 31 of the Constitution
and, in particular, the principle of non-fungibility of personal and financial obligations related
to parental authority of the biological parents, the child’s right to grow up in a family formed
by them, and to have a family replacement only in the event of failure or inadequacy of the
natural parents, and the right of every child to a single, common status filiations. In addition,
judges focused their attention on the contrast existing between surrogacy agreements and the
principle of the unavailability of personal status that cannot be covered by the contract, and in
any case it is forbidden to create, modify or extinguish them contractually. Moreover, they
held that the agreement was in contrast with article 5 of the Civil Code which prohibits all the
acts of disposition of the body which are contrary to law, public order and morality181.
178
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for
gestational-
179
NJW 1986, 782
180
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regulations/
181
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 In the year 2000, the tribune of Rome came to an opposite conclusion in the similar
circumstances as in above case182. In the present case the couple found that they female
cannot conceive due to the physical anomaly in her body. So they found a surrogate who was
ready to relinquish her rights in the commissioned child on birth without any consideration.
They went to the doctor for embryo transplant but the doctor refused to do as The
Deontological code forbid him to do so. The couple moved to the court to allow the doctor to
perform the procedure183. The Court of Rome recognized a right to procreate, following a
more general analysis of article 1 of Law 194/1 on social protection of motherhood and
abortion, which recognized a right to a conscientious and responsible procreation and ensured
the protection of human life from the beginning. The latter article seemed to be directly
connected to the right guaranteed by article 2 of the Italian Constitution, related to the
development of personality184.

The right of procreation was, therefore, generally intended as the right to use all the
means that scientific progress could offer to satisfy the right itself, to reach an individual full
autorealization and a freedom to consciously determine the size of their own family.

The Court also concluded that all the parties had executed an atypical contract,
pursuant to article 1322 of the Civil Code that states that atypical contracts can be concluded
only if they realize interests worthy of protection, according to the Italian law system. In that
case, the interest worthy of protection could have been identified as the desire of the intended
parents to become parents, which was considered, therefore, an expression of the right to
procreate, and with reference to the life of the fertilized embryo, in the principle that human
life must be protected from the outset. Such an agreement, according to the Roman judges,
was deemed lawful and legitimate, and therefore, it was not contrary to article 1344 of the
Civil Code, which regulates contracts in evasion of the law, because the surrogacy agreement
was not intended to circumvent the rules on adoption agreements185.

But later on the view of Tribunal of Monza was followed by other courts. All the
decisions were based on the grounds of best interest of the child and the surrogate mother was
considered best for them186. In a very recent case before the Supreme Court of Italy, has once

182
Trib. Roma, 17 February 2000
183
Chantal Mac, Fundamentals Rights in Contract Law, pg 265
184
Supra note 48
185
Ibid
186
Supra note 51, 267

94
again re affirmed the ban on surrogacy. In this case, the couple from northern Italy, both in
their fifties and infertile, had been turned down three times in their bid to adopt a child before
they turned to surrogacy. They paid €25,000 to a surrogate mother in Ukraine, who refused to
give her name when the baby was born in 2011, leaving the birth certificate blank. When the
couple returned to Italy and tried to register the boy at the registry office, they were charged
with fraud, La Stampa daily said, without providing details on how the would-be parents
were found out. Despite a request from the prosecution to leave the child in the Italian
couple's care, the court decided that the child of no-one -whose mother cannot be traced -
must be put up for adoption187.

6.6. India
Commercial Surrogacy has become so rampant in India that it has now been
nicknamed the rent-a-womb capital and the surrogate mom capital of the world, where high-
class women hire a womb on rent to carry their child to full term. Being without any
legislation to regulate, courts have an important role to play.though the Surrogacy Regulation
Bill 2016 make the provision to ban the commercial surrogacy completely. Some of the
landmark judgments on Surrogacy of Indian courts are as under-

In the Landmark case Baby Manji Yamada v. Union of India 188, a Japanese couple,
Dr. Ikufumi Yamada and his wife, wished to have a baby and entered into a surrogacy
contract with an Indian woman in Anand, Gujarat. The couple went through matrimonial
discord but the father still insisted on having custody of the child. Under Indian Law a single
father cannot adopt a girl child. He sent his mother and a petition was filed before the
Supreme Court. The Apex Court directed that the National Commission for Protection of
Child Rights was the appropriate body to deal with this issue. Justice Arijit Pasayat and
Justice Mukundakan Sharma of the Supreme Court held that the father being the genetic
father of the child can be given custodial rights of the child. The Supreme Court also held that
the Surrogacy Agreement was valid in India. This judgment paved the way for India to be
prosurrogacy. The contract was held to be valid and therefore of most importance even
though it was contrary to adoption laws of India. This judgment led India towards
commercial surrogacy regime.

187
Court Rules Italian Couple Cannot Keep Child Born To Surrogate Mother And Must Be Put Up For
Adoption, RTE News, Wednesday 12 November 2014
188
Writ Petition(C)NO.369 OF 2008

95
 In another judgment, Jan Balaz v. Anand Municipality189, a German couple entered
into a contract with a surrogate mother who gave birth to twin children. The German couple
was working in the United Kingdom and the children required Indian passports to travel.
Since their citizenship was being litigated in the courts the passport authorities withheld the
passports as Germany, the parent state of the German couple did not recognize surrogacy.
The Supreme Court denied the passports but granted an exit permit to the children and the
German authorities decided to give the couple an opportunity to adopt the children and fight
for their rights. In this case the Supreme Court of India highlighted the need for legislation on
surrogacy. The Bench headed by Justice G.S. Singhvi and Justice C.K. Prasad said-190

“that no surrogate child should undergo the difficulties faced by Nicolas and Leonard
who were already two years of age by the time this decision was made and had still not been
granted citizenship in any country.”

The bench observed -We are primarily concerned with the rights of two newborn,
innocent babies, much more than the rights of the biological parents, surrogate mother, or the
donor of the ova. Emotional and legal relationship of the babies with the surrogate mother
and the donor of the ova is also of vital importance. After considering the case laws related
to surrogacy of countries like Ukraine, Japan and the USA, the court decided the case at hand
by inclining to recognize the surrogate mother as the natural mother of the children.

In a very recent case which came up before the Indian courts was on the issue of
maternity leave to commissioning parents. In the present case 191 the petitioner was working as
an Assistant Superintendent in the Traffic department of the Chennai Port Trust. Her son
aged 20 years died in a road accident. After his birth, the petitioner has removed her uterus
due to some problem. Therefore, she in order to have a child had entered into a surrogacy
arrangement to have a baby through surrogate procedure. Finally with the consent of her
husband and his cooperation, a female baby was born through a surrogate mother. In order to
look after the newly born baby, she had applied for maternity leave. But she was informed
that she was not entitled for maternity leave for having a child through surrogate procedure
though such a rejection was not possible in case of a person adopting a child. The Court
referred to the Rule 3A of the Madras Port Trust (Leave) Regulations, dealing with maternity
leave, Maternity Benefits Act 1961, and the judgment of the Supreme Court in Baby Manji
189
Civil Application No. 11364 of 2009
190
Civil Application No. 11364 of 2009
191
K.Kalaiselvi Vs.Chennai Port Trust, W.P.No.8188 of 2012

96
Yamada192. The Court also referred to Article 25 (2) of the Universal Declaration of Human
Rights, the Beijing Declaration and Platform for Action Fourth World Conference on
Women, Convention on the Rights of the Child by United Nations General Assembly and the
judgment of the Supreme Court in Laxmi Video Theatres V. State Of Haryana, to support the
view that subsequent scientific development can be taken note of. After elaborate discussion
on the above, this Court held that the maternity leave should also include to a person who
obtains child through surrogacy193. This judgment was reaffirmed in another case before High
Court of Kerala recently.194(P.Geetha Geetham V.The Kerala livestock Development Board
Ltd).

In Jaycee B. v. Superior Court 195 a married couple sought to have a child by

gestational surrogacy, which means that the husband’s sperm is artificially united with the
egg of his wife and the resulting embryo is implanted in another woman’s uterus, who then
carries the child to birth. The child is usually the genetic off-spring of the married couple but
not of the surrogate mother. In this case, pursuant to a written contract between four people,
namely, a husband, wife, another woman and her husband, a sperm and an egg from
anonymous donors were artificially united and implanted in the uterus of the other woman,
with the intention that the off-spring would be legally the child of the married couple. Here,
the child is not genetically related to the intended parents. About a month before the birth of
the child, the married couple separated and dissolution of marriage proceedings soon
followed. The child was born and the hospital authorities released the child to the intended
mother under the contract. Later on, in the dissolution proceedings, the wife filed an
application seeking pendente lite child support, i.e., temporary child support pending final
adjudication of the matter. The husband disputed the jurisdiction of the court to award even
temporary maintenance. Husband objected that it had not yet been established that the child
was indeed a child of the marriage. The trial judge agreed with the husband and ruled that the
court had no jurisdiction to make a temporary child support order. The court gave the
reasoning that the wife’s remedy was first to get an order from the probate court decreeing
the child had been adopted.

192
Supra note
193
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insurance
policies/
194
P.Geetha, Geetham Vs. The Kerala Livestock Development Board Ltd., WP(C).No. 20680 of 2014
195
42 Cal. App. 4 Th. 718 (1996)

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 The Supreme Court held that the Family Law Court had jurisdiction to make an order
forcing the husband to pay maintenance temporarily to his child until the issue of his
parenthood is finally decided. The Supreme Court obviously decided a “Catch-22” or
chicken-and-egg problem. The remarkable thing about this case is that, unless a court is to
hold that the surrogate mother is the natural mother of the child, the child named Jaycee has
no legal parents at all. Her genetic parents are anonymous and will probably not be held to be
her natural parents. Thus, once again, the need for legislation on this aspect of surrogacy area
is also apparent. What will happen to the child if the intending parents disown the child? Who
will maintain the child, if the intending parents have applied for dissolution of their marriage?

In K. Kalaiselvi v. Chennai Port Trust, Represented by the Chairman, Chennai 196 

Maternity Benefit Act, 1961, Madras Port Trust (Leave) Regulations, 1987, sanction of
maternity leave to surrogate worker were discussed in this case. The petitioner was working
as an Assistant Superintendent in respondent/Port Trust who requested the respondent for
sanction of maternity leave to look after newly born girl child and reimburse medical
expenses and also to issue FMI Card incorporating newly born child through representation.
The respondent cancelled leave granted for a period of 59 days and rejected request for
inclusion of female child in FMI card. Hence, the instant writ petition was filed. The main
issue involved was whether the petitioner working in the Chennai Port Trust was entitled to
avail maternity leave similar to that of leave provided under Rule 3-A of the Regulations in
the absence of any legal provision and even in case where she gets the child through an
arrangement by ‘surrogate parents’.

The Madras High Court did not find anything immoral and unethical about petitioner
having obtained a child through surrogate arrangement. When once it was admitted that said
minor child was daughter of petitioner and at the time of application, she was only one day
old, she was entitled for leave akin to persons who are granted leave in terms of Rule 3-A of
the Regulations. Even in case of adoption, adoptive mother did not give birth to child, but yet
necessity of bonding of mother with adoptive child was recognized by Central Govt. It was
held that the petitioner was entitled for leave in terms of Rule 3-A of the Regulations. Thus,
respondent was directed to grant leave to petitioner in terms of Rule 3-A of the Regulations
recognizing child obtained through surrogate procedure. The petition was thus allowed.

196
W.P.No.8188 of 2012; decided by Madras HC on 4th March, 2013.

98
 The decision of this case raises an issue whether a surrogate mother, if in government
job, enters into a surrogacy agreement, is entitled to special surrogacy leave in Indian
scenario?

In Johnson v. Calvert,197 on January 15, 1990, Mark, Crispina, and Anna Johnson
signed a contract providing that an embryo created by the sperm of Mark and the egg of
Crispina would be implanted in the womb of Anna and the child born would be considered as
Mark and Crispina’s child, to which Anna agreed that she would relinquish all parental rights
to the child in favor of Mark and Crispina. In return, Mark and Crispina would pay Anna
$10,000 in a series of installments, the last to be paid six weeks after the birth of the child.
Mark and Crispina were also to pay for a $200,000 life insurance policy on Anna's life. But
unfortunately, relations deteriorated between the two sides. Mark learned that Anna had not
disclosed that she had suffered several stillbirths and miscarriages. Anna felt Mark and
Crispina did not do enough to obtain the required insurance policy. She also felt abandoned
during an onset of premature labour in June. In July 1990, Anna sent Mark and Crispina a
letter demanding the balance of the payments or else she would refuse to give up the child.
The following month, Mark and Crispina responded with a lawsuit, seeking a declaration
they were the legal parents of the unborn child. Anna filed her own action to be declared the
mother of the child, and the two cases were eventually consolidated. The parties agreed to an
independent guardian ad litem for the purposes of the suit.

The child was born on September 19, 1990, and blood samples were obtained from
both Anna and the child for analysis. The blood test results excluded Anna as the genetic
mother. The parties agreed to a court order providing that the child would remain with Mark
and Crispina on a temporary basis with visits by Anna. At trial in October 1990, the parties
stipulated that Mark and Crispina were the child's genetic parents. After hearing evidence and
arguments, the Trial Court ruled that Mark and Crispina were the child's “genetic, biological
and natural father and mother” and that Anna had no parental rights to the child, and that the
surrogacy contract was legal and enforceable against Anna's claims. The court also
terminated the order allowing visitation. Thereafter, Anna appealed from the trial court's
judgment. The Court of Appeal for the Fourth District, Division Three, affirmed the decision
of the Trial Court. Thereupon, Anna appealed to the Supreme Court of California, which
affirmed the decision of the Court of Appeal.

197
851 P.2d 776 (Cal. 1993)

99
 This case also raises the issue of visiting rights of surrogate mother to meet the child.
Who will have parental rights over the child? The legality and enforceability of the surrogacy
agreement are very important issues which are thoroughly discussed in this work.

The implicit assumption of the dissent is that a recognition of the genetic intending
mother as the natural mother may sometimes harm the child. This assumption overlooks
California’s dependency laws, which are designed to protect all children irrespective of the
manner of birth or conception. Moreover, the best interests standard poorly serves the child in
the present situation. It fosters instability during litigation and, if applied to recognize the
gestator as the natural mother, results in a split of custody between the natural father and the
gestator, an outcome not likely to benefit the child. Further, it may be argued that, by
voluntarily contracting away any rights to the child, the gestator has, in effect, conceded the
best interests of the child are not with her. The birth mother is the natural mother under
California law. The dissent would decide parentage based on the best interests of the child.

In the next case, the legality of latest rules by the Ministry of Home Affairs 198 has
been questioned. These guidelines considers gay couples and single foreigners as ineligible to
have a child through surrogacy in India, the Ministry of Health and Family welfare along
with Women and Child Development ministry have opined that surrogacy should be allowed
for everyone without discrimination. In the present case 199 (Amy Antoinette Mcgregor &Anr
v.Directorate Of Family Welfare) a Sudanese national had filed a petition at the Punjab and
Haryana High court, contending that foreign nationals cannot be discriminated against in
matters of surrogacy against Indians. The High Court chose to dismiss this petition upholding
and in consonance with the Ministry of Home Affairs guidelines.

The Court held that-200

“Since the position of law regarding rights of foreign nationals for surrogacy was not
yet finalised in the form of legislation, deciding upon a case concerning the same would not
be correct. The emphasis in this particular case is on a foreign national, who is single and
seeking to have a child through surrogacy.”

Another interesting case questioning the provisions of The Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 came up before the
198
The Ministry of Home Affairs guidelines of 9th July, 2012
199
Shihabeldin v Union of India and Ors., CWP–15490, 2013
200
Ibid

100
Delhi High Court201. According to the petition, the woman petitioner cannot conceive due to a
medical problem. Therefore, the couple wanted to have two children of different sex through
the surrogacy procedure. Dismissing the petition by Amy Antoinette McGregor and her
husband, a Division Bench of Justice N. V. Ramana and Justice Manmohan said -

The challenge to the provisions of The PreConception and Pre-Natal Diagnostic

Techniques (Prohibition of Sex Selection) Act, 1994, on the ground of hostile discrimination
and unreasonable classification is, therefore, misconceived. We need say no more. The writ
petition is, accordingly, dismissed.

The couple had moved the Court arguing through their counsel Karan S. Thakur and
Vikrant Goyal that the provisions of the Act could not be made applicable to them. They
sought waiving off of the same submitting that such couples could not be treated at par with
those who chose the sex of foetus in order to have a male child only leading to a skewed sex
ratio202. In contrary to the earlier decisions approving trans-border surrogacy in India, the
Supreme Court of India has taken a U-turn in a very recent public interest litigation filed by
Advocate Jayshree Wade. In the hearing of this public interest litigation the honorable
Supreme Court of India suggested to check the import of human embryos in India. A bench
comprising Justices Ranjan Gogoi and N V Ramana expressed concern that various issues
related to commercial surrogacy are not covered under the law but the practice was still
continuing. Commercial surrogacy should not be allowed but it is going on in the country.
You are allowing trading of human embryo. It is becoming a business and has evolved into
surrogacy tourism, the bench, which refused to stay the 2013 notification, and said203.

The apex court asked the government to bring commercial surrogacy within the ambit
of law. Along with this suggestion the Court has also posed the following questions before
the Government to answer204.

 Who can be regarded to be the legal mother of the child – either the egg donor or the
surrogate mother or intended mother?
201
Amy Antoinette Mcgregor & Anr Vs Directorate Of Family Welfare, Govt Of NCT Of Delhi & Anr,
W.P.(C)6332/2013
202
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203
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204
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  Whether commercial surrogacy amounts to renting of a womb and whether
commercial surrogacy is immoral and is opposed to public policy and therefore void?
 Whether allowing commercial surrogacy amounts to psychological and ethical
exploitation of the surrogate mother in picture?
 Whose name will appear on the Birth Certificate and how does the legal transfer of
parentage take place?

In response to these queries the Government submitted that it does not support
commercial surrogacy and that a proposed new law will allow surrogacy only for Indian
couples and not foreigners205. Submitting its affidavit in the court, the government said only
altruistic surrogacy to needy infertile married Indian couples will be provided after their cases
are examined by a competent authority. The government does not support commercial
surrogacy and also the scope of surrogacy is limited to Indian married infertile couples only
and not to foreigners…adequate provisions will be made in the enactment to prohibit and
penalise commercial surrogacy services, stated the affidavit.

In furtherance to this decision of the Supreme Court of India the Indian Medical
Council has issued notification to all the infertility clinics instructing them not to employ
Indian surrogated for foreign patients. Opposing this notification few Mumbai bases
infertility clinics approached the High Court of Mumbai and asked the court to delay the
council’s ban so that Couples that had begun the administrative and medical procedures
necessary to have a child with a surrogate could complete the process at their clinics 206. In
response to this petition the court felt that the government’s action of banning surrogacy
straight away is inappropriate because the people would be stuck midway. The Court
temporarily lifted the government prohibition on foreign couples using Indian surrogate
mothers, clearing the way for two fertility clinics in the city to keep serving clients from
abroad but only as a temporary relief and to avoid any complications in future for those who
have already started the procedure before the notification 207.From the case law concerning
international surrogacy issues, there seems to be a pattern emerging. Commonwealth courts
tend to focus primarily on the welfare of the child, meaning that normal legal requirements

205
Available at http://indianexpress.com/article/india/india-news-india/govt-to-makecommercial-surrogacy-
illegal-panel-to-decide-on-cases-of-infertile-couples
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Available at http://blogs.wsj.com/indiarealtime/2015/11/04/mumbai-court-lifts-banon-surrogacy-for
foreigners-in-some-cases/
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Available at http://blogs.wsj.com/indiarealtime/2018/04/04/mumbai-court-lifts-banon-surrogacy-for
foreigners-in-some-cases/

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will be ignored in order to ensure that a child grows up in a safe and stable home and has a
right to citizenship. France, and possibly other civil law jurisdictions such as Norway, seem
more concerned with the public policy implications of this and will allow policy
considerations to overrule what may be in the best interests of the child. Indian courts seem to
take a fairly lenient response to international surrogacy, but because India is such a large and
varied country with different states, lower regional courts seem to occasionally take a
conservative approach. Higher courts, including the Apex and Supreme Courts, condone the
practice of international surrogacy and are prepared to recognise commissioning parents as
legal parents. However, they do express concern that the unregulated nature of the industry
leaves surrogates vulnerable to exploitation. And in the very recent judgment the court has
changed the whole Indian scenario and paved the path towards disallowing commercial
surrogacy and trans border surrogacy altogether.

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 CHAPTER VII

CONCLUSION AND SUGGESTION

7.1 CONCLUSION
The success of surrogacy arrangements depends largely on the fulfillment of
certain duties by the intended parents. The important duties are: to refrain from sex selection
and improvement of non-medical characteristics; to pay the agreed sum; to accept the child
after birth; to maintain surrogate child as natural child; and to appoint local guardian. Most of
the legal systems have mentioned these duties either directly or indirectly. Though, the
current regulatory framework in India also mentions about these rights and duties of intended
parents, it fails to provide a mechanism to enforce them. Thus the rights and duties of
intended parents need to be addressed effectively by law.

The utmost importance in a surrogacy arrangement is the surrogate mother or woman.

In fact without the help of surrogate woman, a surrogacy arrangement is not possible. The
various issues affecting surrogate mother can be classified under three heads, i.e. whether
there is a right to act as a surrogate or to rent the womb and if yes who can act as a surrogate;
what are the rights of a surrogate mother; and what are the major duties of a surrogate.
Though, some of the countries have adopted a regulatory framework to deal with surrogacy,
all these vital issues have not been addressed adequately. An analysis of the legal framework
dealing with regulation of surrogacy in different countries reveals that there is no consensus
among the countries with respect to the question, whether there is a right to act as a surrogate
or right to rent womb? In India, there is no express or implied prohibition as well as no
express recognition. At the same time the judicial decisions as well as the existing regulatory

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framework shows that the right to act as a surrogate or to rent womb is not prohibited in
India.

The success of surrogacy arrangement depends upon the proper fulfillment of rights
and duties of the stakeholders i.e. intended parent/parents and the surrogate mother involved
in surrogacy. Usually the rights and duties of the parties to a surrogacy are expressed in the
form of agreements or formal contracts. However the surrogacy contracts may give rise to
various legal and human right issues and hence their legality and enforceability is highly
controversial. The approach of countries all over the world towards this issue is also not
uniform. Different approaches can be seen taken such as, prohibition of all types of surrogacy
contracts; prohibition of only commercial surrogacy contracts; and to allow all forms of
surrogacy contracts. Due to the ambiguity prevailing regarding the legality of surrogacy
contracts, issues raised by such contracts become difficult to answer. In the absence of a
specific law for regulating surrogacy in India, the legal principles governing contracts as
codified in the Indian Contract Act, 1872 can be applied to determine the question whether
surrogacy contracts are valid and enforceable. A surrogacy contract between the intended
parents/parent and the surrogate woman can be considered as a contract within the meaning
of Indian Contract Act, 1872 due to the fact that there is an offer from intended parents/parent
and an acceptance by the surrogate woman. Moreover there is consensus-ad-idem between
the intended parents/parent and surrogate woman as well as free consent by the surrogate
woman and a lawful consideration and lawful object. However it may be argued that altruistic
surrogacy contracts are not valid contracts as they do not involve monetary considerations.
This argument can be rebutted on the ground that altruistic contracts are made on account of
love and affection, and even if a total stranger acts as a surrogate the act is providing a gift of
life to the intended parents/parent and thus it comes within the ambit of exceptions mentioned
under Section 25 of the Indian Contract Act, 1872. Further, the object of surrogacy contracts
is to beget a child which is a basic human right recognized under international and national
law. This position coupled with the absence of a legal provision prohibiting the begetting of a
child through surrogacy strengthens the contention that surrogacy contracts are having a
lawful object and thus valid. However, though a surrogacy contract satisfies all the essential
ingredients of a valid contract, the question whether it should be enforced is highly
controversial and debatable issue all over the world.

The analysis of ratio decidendi of cases and the Result of Doctrinal research shows
that there is a ominous need of a comprehensive legislation on surrogacy in India. Besides the

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proposed legislation, there are other laws which will regulate the surrogacy arrangement.
Indian Contract Act, 1872 will govern the formation of a contract and its consequences in
case of its breach. Thus, the provisions of Indian Contract Act, 1872 are to be kept in mind.

The adoption of surrogacy (Regulation) bill 2016 establishes a regulatory framework

for surrogacy practice in India and had made some changes against the Assisted Reproductive
Technology (Regulation) Bill, 2010. The surrogacy Regulation Bill 2016 proposed the ban on
commercial surrogacy and exclusion of foreign couples from availing surrogacy as well as
unmarried people, live-in relationship couple and homosexuals. However, the proposed ban
imposed by the surrogacy bill on commercial surrogacy and exclusion of foreign couples
from availing surrogacy services are considered as the biggest flaw of this bill. The
possibility of exploitation of surrogate woman and protection of interest of surrogate and
surrogate child could have been effectively ensured through proper framework.

The bill could have provide a framework for establishing an effective mechanism for
ensuring that surrogacy contract are made properly by the parties and are not discriminatory
or adversely affecting the interest of the surrogate woman. Further, the bill could have
introduced a process of “vetting of surrogacy contract”, i.e. every surrogacy contract shall be
reviewed by the appropriate competent authority. It should be made mandatory for the parties
to submit their surrogacy contract before the competent authority for vetting prior to the
initiation of surrogacy procedure. Only that contract which have been reviewed and approved
by the competent authority shall be considered as valid and enforceable. The proposed
National Surrogacy board and State Board can easily implement the process of ‘vetting of
surrogacy contract’. While analyzing the Surrogacy Regulation Bill Dr. Nayana Patel 208 says
“India had an opportunity to be a world leader in this field; instea, the government has taken a
regressive step with the draconian law.”

7.2 Suggestion

i) General Suggestion;
The right to procreation is a basic human right. Hence it has to be defined clearly and
specifically under international human rights law and municipal laws. Considering the
importance of having a child in all societies as well as the fact that childlessness has serious
adverse impact on the life of such couples/individuals, the right to procreation must extend to
include the right to access to assisted human reproductive technologies for begetting a child.

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A Surrogacy specialist from Anand Hospital, Gujrat

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 In order to deal with any dispute relating to surrogacy and surrogacy contracts, states
shall establish a designated court comprising of legal and medical experts.

ii) Suggestion in relation to surrogate mother

The legal framework for regulating surrogacy arrangements shall clearly specify the
eligibility criteria as to who can be a surrogate. The State however can take into account the
moral, social, ethical, legal and human rights aspects while specifying the eligibility criteria.
An unmarried girl shall not be allowed to act as a surrogate. A married woman can be
allowed to act as a surrogate only with the consent of her husband. However divorced or
widowed women can be allowed provided if they satisfy other relevant criteria. The surrogate
woman shall be above 25 and below 45 years of age; must be free from any hereditary or
communicable diseases; and must be physically and mentally fit to carry a child to full term.
A relative shall be allowed to act as a surrogate only if she is having the status of a sister or
sister-in-law and only for gestational surrogacy.

The right to act as a surrogate for another must be considered as a facet of right to
personal liberty and privacy of a woman. However reasonable restrictions can be imposed on
this right of a woman to act as a surrogate. Such reasonable restrictions are necessary to avoid
any indiscriminate use of such right by women and misusing the right for purely commercial
purposes like a business.

The rights of the surrogate woman must be stated clearly. She shall be provided with
the following rights, viz. (a) right to informed consent and proper counseling prior to
initiation of surrogacy process; (b to receive all expenses for pregnancy and hospital
treatments as well as insurance coverage; (c) to receive compensation as agreed by the
parties; (d) to remain anonymous; and (e) a limited right to visitation can be allowed subject
to the consent of intended parents/parent.

iii) Suggestions in Relation to Intended Parents

The legal framework for regulating surrogacy shall specify clearly the eligibility
criteria regarding who can be an intended parent? Married infertile couples shall in ordinary
circumstances be allowed to use surrogacy for begetting a child. However, married fertile
couples must be allowed to use surrogacy for begetting a child only in situations where the
pregnancy gives rise to medical complications or causes risk to the life of mother or child;
and where at least one of the couples can contribute genetic material for the child.

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 The right to be an intended parent must be recognized as a part of right to personal
liberty, right to privacy, right to procreation, right to found a family and decide on the
number and spacing of children, and right to enjoy benefits of scientific and technological
progress.

iv) Suggestions Concerning Surrogacy Contracts

the surrogacy contracts, whether altruistic or commercial must be considered as valid
and enforceable. In the absence of specific laws regulating surrogacy contracts, the Indian
Contract Act, 1872 shall be made applicable. Section 25 of Indian Contract Act, 1872 shall be
amended to include a new exception, i.e. all altruistic surrogacy agreements between intended
parents and a surrogate woman (whether a near relative or stranger) is valid even without
consideration.

The ART clinics performing surrogacy shall inform the intended parents and
surrogate women regarding the mandatory requirements of vetting of surrogacy contracts.
The general law relating to breach of contracts can be applied in case of a breach in surrogacy
contracts. In situations of a breach of surrogacy contracts prior to artificial insemination or
embryo implantation, the parties can treat contract as ended and claim for damages which
they have suffered due to such contracts and are obliged to restore all the benefits which they
have obtained from other parties if the circumstances so warrant. If the surrogate breaches the
contract by aborting the foetus, without informing and without the consent of intended
parents, the intended parents shall be provided with right to compensation by taking into
account the financial loss as well as mental sufferings of the intended parents.

v) Suggestions in relation to Surrogate Child:

The legal status of the surrogate child must certain. He shall get all the rights which is
available to a biological child i.e. there shall be the legitimacy of surrogate child. The refusal
by the intended parents/parent to accept the surrogate child shall be considered as an offence.
If the surrogate or any close relative of intended parents /parent are ready to accept the child,
the child shall be handed over to them. If they are not willing to accept the child, the child
may be put in an orphanage or given for adoption and the intended parents shall be held liable
for providing maintenance expenses to such child till adoption or upto the age of majority of
the child. Every child born through surrogacy shall be considered as the legitimate child of
intended parents/parent. For determining the legitimacy of child, the section 112 of Indian
Evidence Act, 1872 shall not be considered relevant.

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 The legal system shall develop a balance between the rights of surrogate child to
know his origin and the right of surrogate and donor to remain anonymous. The State shall
develop a Central Database containing record of the surrogate and donor and other relevant
information. The disclosure may be allowed only if such disclosure is essential in compelling
circumstances like protection of health and life of the surrogate child or for preventing
incestuous relationship. A surrogate child shall be given the similar status of a child born in
wedlock for the purpose of maintenance and inheritance rights.

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 BIBLIOGRAPHY
…………………………………………………………………………………………………
…….
INTERNATIONAL DOCUMENTS
…………………………………………………………………………………………………
……
 Additional Protocol to the American Convention on Human Rights in the area of Economic,
Social and Cultural Rights, 1988.
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 Fourth World Conference of Women held in Beijing, 1995.
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 International Conference on Population and Development, 1994.
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Persons with Disabilities, 2006.
 International Ethical Guidelines for Biomedical Research involving Human Subjects adopted
by Council of the International Organization of Medical Societies (CIOMS), 1982.
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 Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in
Africa, 2003.
 The African Charter on Human Rights and Peoples Rights, 1981.
 The American Declaration of the Rights and Duties of Man, 1948.
 The Convention against Transnational Organized Crime, 2000.
 The Convention on the Elimination of all forms of Discrimination against Women, 1979.
 The Convention on the Rights of Persons with Disabilities, 2006.
 The Convention on the Rights of the Child, 1989.

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 The European Convention on Human Rights, 1950.
 The International Covenant on Civil and Political Rights, 1966.
 The International Covenant on Economic, Social and Cultural Rights, 1966.
 The United Nations Charter, 1945.
 The United Nations Programme of Action of the International Conference on Population and
Development, 1995.
 The Universal Declaration of Human Rights, 1948.
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 UN Declaration on the Rights of Child, 1959.
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 Universal Declaration on Bioethics and Human Rights, 2006.
 World Summit, 2005.
 World Women‘s Conference, 1975.
…………………………………………………………………………………………………
…
LIST OF STATUTES
…………………………………………………………………………………………………
…
 Foreign Statutes
 Adoption Act, 1996 (Victoria).
 Assisted Human Reproduction Act, 2004 (Canada).
 Assisted Reproductive Treatment Act, 2008 (Victoria).
 Canadian Charter of Rights and Freedoms, 1982.
 Children and Adoption Act, 2006 (U.K).
 Children‘s Act, 2005 (South Africa).
 Constitution Act, 1982 (Canada).
 Domestic Relations Law (New York Codified Law).
 Embryo Protection Act, 1990 (Germany).
 Family Code of Russia, 1996.
 Florida Statute 742.14 ( American State Florida Codified laws).
 French Civil Code, 1804.
 Health and Disability Commissioner Act, 1994 (New Zealand).
 Health Care (Consent) and Care Facility (Admission) Act, 1996 (British Colombia).
 Health Care Consent Act, 1996 (Ontario).
 Human Assisted Reproductive Technology Act, 2004 (New Zealand).

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 Human Fertilisation and Embryology Act, 1990 (U.K.).
 Human Reproductive Technology Act, 1991 (West Australia).
 Human Reproductive Technology Ordinance, 2000 (Hong Kong).
 Human Rights Act, 1998 (U.K.).
 KRS § 199.590, 2006 (American State Kentucky Codified Law).
 Law on Civil Status Act, 2001 (Russia)
 Law on Maternal and Infant Health Care, 1994 (China).
 Law on Research on Embryos in Vitro, 2003 (Belgium).
 Law on Research on Human Embryonic Stem Cells, 2006 (Czech Republic).
 Marriage (Prohibited Degrees) Act, 1990 (Canada).
 Nev. Rev. Stat. Ann. § 126.045, 2007(American State Nevada Codified Law).
 Reproductive Medicine Act, 1992 (Austria).
 Reproductive Technology (Clinical Practices) Act, 1988 (South Australia).
 RSA §§ 168-B: 1 to -B: 32, 2007 (American New Hampshire Codified Law).
 Surrogacy Act 2010 (Queensland ).
 Surrogacy Act, 2010 (New South Wales).
 Surrogacy Act, 2008 (Western Australia).
 Surrogacy Arrangements Act, 1985 (U.K.).
 Tex. Fam. Code §§ 160.751 to .763 (2007) (American State Texas Codified laws).
 The Arizona Revised Statutes, Ss. 25-218 (Codified Laws).
 The Assisted Human Reproduction Act, 2004 (Canada).
 The Assisted Reproductive Treatment Act, 2008 (Victoria).
 The Children‘s Act, 2005 (South Africa).
 The Employment Relations Act, 1999 (U.K.).
 The Family and Medical Leave Act, 1993 (U.S.A.).
 The Family Code, 2004 (Ukraine).
 The Human Fertilisation and Embryology Act, 1990 (U.K.)
 The Illinois Gestational Surrogacy Act, 2004.
 The Law on Assisted Reproductive Technologies, 2006 (Portugal).
 The Marriage Act, 1949 (U.K. and Wales).
 The Reproductive Medicine Act, 1992(Austria).
 The Trafficking Victims Protection Act of 2000 (U.S.A.).
 Uniform Parentage Act, 2000 (U.S.A.).
 Utah Code Ann. §§ 78-45g-801 to -809, 2007 (American State Utah Codified Law).
 Va. Code Ann. §§ 20-156 to -165, 2007 (American State Virginia Codified Law).
 Wet Donorgegevens Kunstmatige Bevruchting, 2004 (Dutch Law)

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 …………………………………………………………………………………………………
…
INDIAN STATUTES
…………………………………………………………………………………………………
…
 Constitution of India
 Hindu Adoption and Maintenance Act, 1956.
 Hindu Succession Act, 1956.
 Immoral Traffic Act, 1986.
 Indian Citizenship Act, 1955.
 Indian Contract Act, 1872.
 Indian Passport Act, 1967.
 Indian Succession Act, 1925.
 Juvenile Justice (Care and Protection of Children) Act, 2000.
 Muslim Women (Protection of Rights on Divorce) Act, 1986.
 The Assisted Reproductive Technologies (Regulation) Bill, 2008.
 Assisted Reproductive Technology (Regulation) Bill, 2010.
 The Assisted Reproductive Technologies (Regulation) Bill, 2014
 The Surrogacy Regulation Bill, 2016

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