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SURROGACY IN INDIA: A CRITICAL ANALYSIS

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LEGAL METHODS AND RESEARCH
METHODOLOGY

SEMINAR PAPER ON

SURROGACY IN INDIA: A CRITICAL

ANALYSIS
SUBMITTED TO:

DR. MANPREET KAUR

(ASSISTANT PROFESSOR OF LAW)

SUBMITTED BY:

ADITI SINGH

ROLL NO. 23502

 TABLE OF CONTENTS

S.NO. TOPIC PAGE NO.

1. CHAPTER 1 - Introduction
1.1. Research Problem
1.2. Literature Review
1.3. Research Objective 4-7
1.4. Research Questions
1.5. Hypothesis
1.6. Research Methodology
2. CHAPTER II - Surrogacy: Meaning, Concept and
Historical Background
2.1. Meaning of Surrogacy
2.2 Surrogate Motherhood: Meaning
2.2.1 Criteria for becoming a surrogate mother
2.3. Types of Surrogacies 8-16
2.4 Surrogacy Agreement
2.4.1 Surrogacy Parenting Agreement
2.4.2 Surrogacy Arrangement Agreement
2.5. Historical Evolution of Surrogacy
2.6. Historical Instances of Surrogate Motherhood
3. CHAPTER III – International Legal position of
Surrogacy
3.1. Legal Position of surrogacy in various countries
other than India
3.1.1. United State of America 17-21
3.1.2. United Kingdom
3.1.3. South Africa
3.1.4. Other Countries
4. CHAPTER IV - Constitutional and Legislative
measures in India
4.1 Legislative Measure: Overview
4.2 Indian Legislative framework on surrogacy
4.2.1. Indian Council for Medical Research

2
 4.2.2. Law Commission
4.2.3 Indian Legislature
4.2.3.1 Assisted Reproductive
Technology (Regulation) Bill 2008
4.2.3.2 The Surrogacy (Regulation)
Bill, 2016
4.2.3.3 The Surrogacy (Regulation) 22-30
Bill, 2019
4.2.3.4. Assisted Reproductive
Technology (Regulation) Bill 2020
4.2.3.5 Surrogacy (Regulation) Bill, 2020,
and the Assistive Reproduction Technology
(Regulation) Bill, 2021
5. CHAPTER V – Role of Judiciary
5.1 Judicial Response to Surrogacy in India
5.2 Judicial Response to adoption of surrogacy by 31-33
LGBTQ+
6. CHAPTER VI – Conclusion and Suggestions 34
7. Bibliography 35-36

3
 CHAPTER I

INTRODUCTION

The concept of family has played an important role in the formation of this society
since time immemorial. The privilege to marry and establish a family has been
considered a fundamental human right. Human rights law upholds the positive right
of all peoples to marry and form a family. 1 Every society across the world has given
prime importance to the institution of family as the most basic and fundamental unit
of social relationship. When two individuals get together and bind themselves in a
matrimonial bond, then a new family comes into existence and such family gets
complete with the birth of children. Unfortunately, the gift of being able to bear a child
is not evenly distributed by nature. This inability to bear a child in medical terms is
known as infertility. The paradox of a child completing a family and the fact of
inability to bear a progeny leaves the married couple into a difficult situation. This
pressure of society on the couple to bear a child sometimes also leads to matrimonial
breakdown and also brings couple to social ridicule. 2

1.1 RESEARCH PROBLEM

The lack of research on surrogacy also creates problems for enacting laws and take
various actions against those found guilty. Many questions about the surrogacy remain
unanswered such as Is it legal to become a surrogate mother in India? Will the child
born to an Indian surrogate mother become a citizen of the country? Who will obtain
the birth certificate and passport required for foreign parents to enter the country?
Whose name will appear on the birth certificate? What happens if the surrogate mother
changes her mind and refuses to provide or force care for the child? If the dependent
parent refuses to care for the child, who will be responsible for the child? What if a
child is born with a disability? What if the gender of the child is not what the parents
want? Such questions require in-depth analysis.

1
Article 16 (1) of Universal Declaration of Human Rights, 1948
2
Imrana Qadeer, “Social and Ethical Basis of Legislation on Surrogacy: Need for Debate” Available at:
http://www.issuesinmedicalethics.org/171co28 (visited on 19.09.2023).

4
 1.2 LITERATURE REVIEW

Peter Singer and Deane Wells in their book entitled Making Babies: The New Science
and Ethics of Conception.3 Two Australian authors provide an overview of attitudes
towards surrogacy in the United States, Great Britain and Australia. They explore
possible legal structures that could be used to regulate the procedure. A system based
on the model used to manage adoption in Australia - the establishment of a State
Surrogacy Council - is being proposed.

Martha A. Field in Surrogate Motherhood: The Legal and Human Issues 4 has dealt
with the legality and enforceability of surrogacy contracts in her book. It sets out the
range of positions that can be taken to deal with surrogacy and the considerations that
might support them. It also discusses custody contests independent of surrogacy
contracts. A mother who withdraws from a surrogacy contract should have the right
to retain custody of her child without having to prove to the court that she would be
a better parent than the biological father.

Dr. Nandita Adhikari’s Law and Medicine5 discusses on surrogate motherhood, its
historical background and legality of surrogacy contracts in various countries. She
has also taken into consideration the issues relating to surrogacy arrangements.

Nikita Kaushik’s "Law in Surrogacy"6 discusses the concept of substitution and is

concentrated on legal systems governing India's substitute. The 228th Law
Commission’s study and Surrogacy (Regulations), 2019 and Supported Technologies
(Regulation), 2010 Bill are also examined. She has also addressed the surrogate
mother's rights and responsibilities.

3
Scribner’s, New York (1985).
4
Harvard University Press. London (1990).
5
Central Law Publications, Allahabad (2012).
6
Indian Journal of Health and Medical Law, Vol. 2(1), page no. 30-43, (July, 2019).

5
 1.3 RESEARCH OBJECTIVE

To critically analyses the concept of surrogacy, its impact on surrogate mother, rights
of the child born, and Suggest recommendations for protection of rights of surrogate
mother, child and the commissioning parents through laws.

1.4 RESEARCH QUESTIONS

1. What is surrogacy?
2. What is the history of surrogacy?
3. What are the various types of surrogacies?
4. What is the international perspective related to surrogacy?
5. Is there any legal provision to check surrogacy practice?
6. What are the rights and responsibilities of those participating in substitution? How
are they being affected by surrogacy arrangements?

1.5 HYPOTHESIS

Even though we are now having an Act on surrogacy but the Act suffers from number
of serious defects and uncertainties.

1.6 RESEARCH METHODOLOGY

The research methodology used for this research is Doctrinal ‘Primary and
secondary sources have been used to gather the information for doctrinal research.
The primary source of information is the laws enacted by the legislature, legal
rulings, executive order, rules, and various administrative bodies' regulations. The
secondary source includes books, newspapers, newspapers, newspapers,
newspapers, websites, and other publications. Besides, several national and global
acts, treaties and studies are referenced to analyse the analysis subject. With the aid
of the internet, newspapers, journals, newsletters, the latest substitution law situation
is being examined.

1.7 CHAPTERISATION PLAN

Chapter I – Introduction

This chapter introduces the topic and discusses the problem that is to be researched,
the summarization and synthesis of material and books available on the topic, the

6
objectives and goal of the research, the questions that researcher aims to answer in
the research and the methodology used by researcher for conducting the study.

Chapter II - Surrogacy: Meaning, Concept and Historical Background

This Chapter explains the meaning of the term surrogacy, concept of Surrogate
Motherhood, who is a fit person to become a surrogate mother, various types of
surrogacies, Surrogacy agreements (Surrogacy Parenting Agreement and
Surrogacy Arrangement Agreement) and the historical evolution and instances of
surrogacy in past.

Chapter III- International Legal Position of Surrogacy

This chapter will deal with the legal position of surrogacy in various countries other
than India such as the United States of America, United Kingdom, South Africa and
Other countries.

Chapter IV – Constitutional and Legislative Measures in India

This chapter describes the Indian Legislative framework on surrogacy,

contribution of various institutions such as ICMR, Law commission and various
bills introduced by Indian Legislature such as Assisted Reproductive Technology
(Regulation) Bill 2008, 2013, 2014, 2017, 2020 and the Bill of 2021.

Chapter V – Role of Judiciary

This chapter takes into consideration the judicial response to surrogacy i.e., whether
judiciary is in favour of surrogacy or not and also what is the response of judiciary
as to adoption of surrogacy by the LGBTQ+ community.

Chapter VI – Conclusion and Suggestions

This Chapter concludes the research by drawing conclusions from the above said
chapters and also aims at suggesting solutions to questions that have remained
unanswered till date.

Now in the second chapter we will understand what surrogacy is, its types, concept
of surrogate motherhood, and its historical background.

7
 CHAPTER II

SURROGACY: MEANING, CONCEPT AND HISTORICAL

BACKGROUND

In this chapter we will understand what surrogacy is and most importantly who is a
surrogate mother. We shall also take a look at types of surrogacies and the
historical evolution of surrogacy as a concept.

Fig 1: Meaning, Concept and Historical Background of Surrogacy

2.1 MEANING OF SURROGACY

Surrogacy is derived from the Latin word “Surrogatus” which means “substitute” or
someone appointed to act in the place of another. 7 According to Black’s Law
Dictionary, is the procedure of bearing and delivering a child for someone else. 8

According to the Artificial Reproductive Technique (ART) Guidelines, 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 intention of carrying it to term and handing over the child to the
person or persons for whom she is acting as surrogate; and a ‘surrogate mother’ is a
woman who agrees to have an embryo generated from the sperm of a man who is

7
R.S. Sharma, Social, ethical, medical & legal aspects of surrogacy: an Indian scenario, 140 IJMR 13, (2014),
Social, ethical, medical & legal aspects of surrogacy: an Indian scenario - PMC (nih.gov)
8
Surrogacy, Black’s Law Dictionary, (9th edition,2009).

8
 not her husband, and the oocyte for another woman implanted in her to carry the
pregnancy to full term and deliver the child to its biological parents(s) 9

As per the dictionary of Merriam-Webster ―surrogacy is, "The practice by which a

woman named as surrogate mother becomes pregnant, bears a child to give birth in
order to give it to someone who cannot have children" 10

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 woman has undergone a hysterectomy or
suffered multiple miscarriages or born without a womb where surrogacy comes to
the rescue.11

While understanding surrogacy it is essential to understand the concept of

commissioning parent. The commissioning parent, sometimes also called as the
intended parent is generally the term used to describe the person or persons for
whom the child is to be borne. The intended parents opting for surrogacy can be
Indian, Non-Resident Indians (NRIs) or Foreigners. In India, surrogacy is
increasingly becoming a popular and well accepted practice amongst childless
couples; most of such commissioning parents hail from the creamy layer of the
society who can bear the huge cost of surrogacy. 12

2.2 SURROGATE MOTHERHOOD: MEANING

In surrogate motherhood, one woman acts as a surrogate, or replacement, mother for

another woman, sometimes called the intended mother, who either cannot produce
fertile eggs or cannot carry a pregnancy through to birth, or term. Surrogate
mothering can be accomplished in a number of ways. Most often, the husband's
sperm is implanted in the surrogate by a procedure called artificial insemination. In
this case, the surrogate mother is both the genetic mother and the birth, or gestational

9
The Assisted Reproductive Technologies (Regulation) Bill-2010, Indian Council of Medical Research (ICMR),
Ministry of Health &Family Welfare, Govt. of India, pg. 4 (aa).
10
Available at https://surrogate.com/about-surrogacy/surrogacy-101/surrogacy-definition/. Visited on
24.09.2023
11
Irvi H. Thakkar, “Is Surrogate Motherhood Moral?” Cri LJ 88 (2011).
12
Gail Dutton, A Matter of Trust: The Guide to Gestational Surrogacy 217 (1997).

9
 mother, of the child. This method of surrogacy is sometimes called traditional
surrogacy.13

As per the Black Law dictionary, a surrogate mother may or may not be the genetic
mother of a child. It categorises surrogacy in two classes — traditional surrogacy
and gestational surrogacy. It may be commercial or altruistic, depending upon
whether the surrogate receives financial reward for her pregnancy or relinquishment
of child. In any of these cases, a number of controversies can arise, as it involves the
social, ethical as well as legal issues into it.14

The concept of “rent a uterus” in fact may be readily acceptable in the more
analytical frame of the mind with the argument “at least the baby is made with our
gametes, even though nourished in a rented body”. With sisters, sisters-in-law and
even mothers lending a hand or rather a uterus, it received greater acceptability (even
if future consequences arouse, it could be solved very easily and the helping hand of
near and close relative may not be taken out after delivering the child).15

Practice in which a woman (the surrogate mother) bears a child for a couple unable
to produce children, usually because the wife is infertile or unable to carry a
pregnancy to term. The surrogate is impregnated either through artificial
insemination (usually with the sperm of the husband) or through the implantation of
an embryo produced by in vitro fertilisation. The surrogate traditionally gives up all
parental rights, though this has been subject to legal challenge. 16

2.2.1 CRITERIA FOR BECOMING SURROGATE MOTHER

It is very essential to know as to who can become a surrogate and following criterion
must be seen to determine if a woman is fit to become a surrogate mother:

(a) A surrogate must be in good overall health.

(b) No medical problems which could lead to complication with pregnancy.

13
Available at: http://www.legal-dictionary.thefreedictionary.com/surrogate+motherhood (visited on 25.09.23).
14
Black’s Law Dictionary, Eighth Edition, 1036 (2004).
15
Nandita Adhikari, “Surrogate Motherhood” Law and Medicine 167 (2012).
16
Available at: http://www.britannica.com/EBchecked/topic/575390/surrogate-motherhood (visited on
25.09.2023).

10
 (c) She should not be overweight, heavy smoker, drinker or substance abuser not
suitable as surrogate mother, because of the associated risk both to the woman and
to the baby.

(d) Surrogate mother should bear at least one child previously and preferably has
completed her own family.

(e) She should give her own consent.

(f) She should be below age of 35 years.

(g) Being a surrogate mother is an emotionally and physically demanding task. So,
there should be a backing of partner, family or friends.

(h) Careful consideration must be given to the medical, emotional, legal and
practical issues. Thought must also be given to the effect of any existing children,
the potential surrogate mother’s partner, family and friends. 17

2.3 TYPES OF SURROGACIES

Although there are various types of surrogacies but the following types are
essential for the purpose of study:

(i) Altruistic Surrogacy

It is the term used to describe the situation where there is no formal contract or
any payment or fee to the birth mother. It is usually an arrangement between very
close friends or relatives. In altruistic surrogacy, the essential elements are child-
bearing by a surrogate mother, termination of her parental rights after his birth
and payment of money by the genetic parents. The surrogate is paid merely to
recompense her for the pain undertaken by her and includes reimbursement of
medical and other expenses or is not paid at all. 18

(ii) Commercial Surrogacy

In contrast thereto, commercial surrogacy involves payment of hefty sum of

money as income to the surrogate for the service offered by her plus any expenses
incurred in her pregnancy and surrogacy is thereby looked upon as a business

17
Supra at 15
18
Kush Kalra, “Surrogacy Arrangements; Legal and Social Issues” Journal of Law Teachers India 125 (2010).

11
 opportunity. It is a business-like transaction where a fee is charged for the
incubation service, in consideration of the birth mother surrendering the child at
birth. There are usually financial arrangements like the above in addition to
ancillary expenses, loss of wages etc. And often stipulates behaviour the birth
mother agrees to undertake (e.g., undergoing tests, or having an abortion if foetus
is defective or avoid smoking and drinking). The commissioning couple and the
birth mother are often strangers. It is argued by many that payment simply for
expenses and earnings and not the service and surrender of custodial rights will
entail calling the agreement non-commercial. 19 This medical procedure is legal in
several countries including India where due to excellent medical infrastructure,
high international demand and ready availability of poor surrogates it is reaching
industry proportions. Commercial surrogacy is sometimes referred to by the
emotionally charged and potentially offensive terms “wombs for rent”,
“outsourced pregnancies” or “baby farms.”20

2.4 SURROGACY AGREEMENT

There are 2 agreements under the surrogacy agreement. They are:

1. Surrogacy Parenting Agreement

2. Surrogacy Arrangement Agreement

2.4.1 SURROGACY PARENTING AGREEMENT

A contract between a woman and typically an infertile couple under which the
woman provides her uterus to carry an embryo throughout pregnancy; an
agreement between a person (the intentional parent) and a woman (the surrogate
mother) providing that the surrogate mother will (1) bear a child for the
intentional parent, and (2) relinquish any and all rights to her child. If the
surrogate mother is married, her husband must also consent to the terms of the
surrogacy contract. The agreement usually provides that the woman will
relinquish to the couple any parental rights she may have upon the birth of the
child.21

19
Supra at 18
20
J.P.S. Sirohi, Criminology and Penology 679 (2011).
21
Irvi H. Thakkar, “Is Surrogate Motherhood Moral?” Cri LJ 88 (2011).

12
 A surrogacy agreement is an agreement entered between the surrogate mother and
the intended parent/s, making their intentions clear with regard to each of their
roles for performing the act of surrogacy. The surrogacy agreement should
contain all aspects of their relationship between the intended parents, surrogate
mother and the child. The contents of the agreement include the payment module
to the surrogate mother. The contract phase of the surrogacy agreement finalises
the monetary reward to the surrogate to be paid by the intended couple for the
service rendered by the surrogate. The agreement demarcates the liability of the
surrogate and intended parent upon which either of the parties to the agreement
has agreed upon. The surrogate and the intended parent/s are required to sign the
surrogacy agreement after clearly understanding the contents of the agreement. 22

Indian Surrogacy Law Centre recommends that not only intended parents and the
surrogate mother but the spouse of the surrogate mother also signs the agreement,
so as to show his acknowledgement to the surrogacy agreement. Also, the
intended parents may appoint a person who shall be named in the agreement, who
shall take the child into his possession, in an event of uncertainty over the actual
intended parents’ possibility of taking custody of the child.

2.4.2 SURROGACY ARRANGEMENT AGREEMENT

Surrogacy Arrangement Agreement is entered between the intended parents and

the Hospital/Agency agreeing the terms and conditions which determine the
conduct of the parties during the surrogacy program. This agreement shall cover
details such as the fee structure, dates of the procedures, mode of payment,
medical tests to be done, dates for implantation of the embryos and other medical
procedures, which shall provide with unlimited back up to the intended parents
till the time you sign the agreement. Moreover, this agreement is enforceable and
the intended parents are assured of getting those services as per the Surrogacy
Arrangement Agreement.23

2.5 HISTORICAL EVOLUTION OF SURROGACY

In our society infertility has historically been seen as a problem which merits
treatment. Surrogate motherhood provides some couples with their only hope of

22
Jan Balaz vs. Union of India, 2010 (2) ALL MR (Journal) 14.
23
Central Law Publications, Allahabad (2012).

13
 raising a child genetically related to at least one of them. Surrogate motherhood
describes an arrangement where a woman (the surrogate mother) agrees to
become pregnant and bear a child for another person or persons (the
commissioning parents) to whom the custody of the child will be transferred
directly after birth.24

It is only in the last 20 years that surrogate motherhood has increasingly become
an issue of national and international public debate. Factors such as the growth of
infertility in modern society, coupled with the declining number of children
available for adoption, the development of the surrogacy contract and commercial
surrogacy agencies and the introduction of new technologies such as in vitro
fertilisation (IVF) which can be combined with surrogate motherhood, have
resulted in increasing publicity and public interest in the formation of such
agreements between infertile couples.25

Surrogate mothers are not a new solution to the old problem of not being able to
reproduce an offspring. The basic concept dates back at least 4000 years to
Rachel, wife of Jacob, the father of the twelve tribes of Israel. Unable to bear
children, Rachel sent her husband into the tent of her maid, Bilah. It was
understood that the child born of that union belonged to Jacob and Rachel. 26
Surrogacy has also been seen around a long time and dates back to biblical times.
Some say it all started with Sarah and Abraham. Certain people say it started even
before them, and that it is only recorded about Abraham because he was written
about in the Bible.27

In ancient Hindu society there existed a practice known as Niyog Pratha, wherein
a woman who was childless because her husband was impotent was allowed to
conceive through her brother-in-law. The child belonged to the couple and the
brother-in-law had no claim over it. Niyog pratha was surrogate fatherhood. It was
much less complicated, legally and emotionally, than surrogate motherhood. The
scholars of Islam have pronounced a Fatwa regarding surrogacy; it is considered

24
Anita Stuhmcke, “For Love or Money: The Legal Regulation of Surrogate Motherhood” Surrogate
Motherhood: Law and Legislation (1995).
25
ibid
26
Barbara S. Parish, “Test Tube on Trial: Let California Blaze the Trail to the Legitimation of Surrogacy”
Available at: http://heinonline.org, Citation: 9 Glendale L. Rev. 56 19 (visited on 26.09.2023).
27
Grayee P. Storey, “Ethical Problems Surrounding Surrogate Motherhood” Available at:
http://www.yale.edu/ynhti/curriculum/units (visited on 26.09.2023).

14
 illegal and immoral for a woman to carry the child of any man other than the
husbands. The bible promotes the idea of surrogate motherhood.28 However, as far
as earlier law of Christians is concerned it promotes surrogate fatherhood. 29

2.6 HISTORICAL INSTANCES OF SURROGATE MOTHERHOOD

1. Ancient India

Sage Gautama produced two children from his own semen— a son Kripa and a
daughter Kripi, who were both test-tube babies. Likewise, Sage Bharadwaj
produced Drona, later to be the teacher of Pandavas and Kauravas. The story
relating to the birth of Drishtadyumna and Draupadi is even more interesting and
reflects the supernatural powers of the great Rishis. King Draupada had enmity
with Dronacharya and desired to have a son strong enough to kill Drona. He was
given medicine by Rishi and after collecting his semen, processed it and suggested
that artificial insemination homologous (AIH) should be done for his wife who
however refused. The Rishi then put the semen in a yajnakunda from which
Dhrishtadyumna and Draupadi were born. While the above are quoted as examples
of in vitro fertilisation (IVF) and parthenogenesis, there is another story, which
refers to embryo transfer. According to Bhagwad Gita, even Lord Krishna is
understood to have been born without a sexual union. This was regarding the
seventh pregnancy of Devaki, by the will of the lord; the embryo was transferred
to the womb of Rohini, the first wife of Vasudev, to prevent the baby being killed
by Kansa. 30

2. Ancient Mesopotamia and Egypt

If we look at the history of surrogacy, it really began in the late 1800’s with the
American Indians who were the first one to truly begin the surrogate mother
history. If an Indian woman was found to be infertile, then her husband would go
to the chief of his tribe and ask for help. He would then be sent to see the medicine
man, who would give the wife certain herbal concoctions. Then, after the witch
doctor said nothing could be done to help his wife, the husband would go to see

28
Genesis 16:2 So she said Abrahm, “the Lord has kept me from having children. Go, sleep with my slave;
perhaps I can build a family through her.”
29
Deuteronomy (5th book of Hebrew Bibles, chapter 25 verse 5)
30
Pratibha Ganesh Chavan, “Psychological and Legal Aspects of Surrogate Motherhood”

15
 the chief. He would be allowed to take another woman and make her pregnant,
hopefully, so that he would be able to father a son to carry on his tribe. The barren
wife would have no biological ties to the child. 31

In many countries, surrogacy has been around since before records. Many cultures
have belief systems that abide with the rules of surrogacy and those that do not
agree can be thrown out of their families. Numerous religions and civilisations will
actually celebrate the surrogate mothers, for their good deeds and service to others.
During the 1980's surrogate mothers were used by the gay community to build
their families, then, it was frowned upon by society. 32

31
Ashley Kate, “History of Surrogate Motherhood” Available at: http://www.ezinearticles.com (visited on
27.09.23).
32
ibid

16
 CHAPTER III

INTERNATIONAL LEGAL POSITION OF SURROGACY

3.1 LEGAL POSITION OF SURROGACY IN VARIOUS COUNTRIES

OTHER THAN INDIA

There is a plethora of views regarding the issue of "surrogate birth" in various

countries. It is rather a tumultuous point of law as there are only a handful of
nations recognising it and there is also a lack of uniformity in the principles being
followed in these nations with respect to the phenomenon of surrogate birth. 33

The practice of surrogate motherhood, though not unknown in previous times,

came to international attention in the mid-1970s when a reduction in the number
of children available for adoption and the increasing specialization of techniques
in human embryology made such methods a viable alternative to lengthy and
uncertain adoption procedures or childlessness. Surrogate motherhood has raised
a number of issues—such as the matter of payment for services (which, taken to
the extreme, has implications of making children a commodity) and the rights of
all of the individuals involved should any aspect of the procedure go awry. 34

Fig. 2 International Legal position of Surrogacy

33
Reetu and Basabdutta, “Surrogate Birth” AIR 2009 Jour 109.
34
Surrogate Motherhood by Encyclopaedia Britannica, Available at : Surrogate motherhood | Definition & Facts
| Britannica (visited on 28.09.2023)

17
 3.1.1 UNITED STATES OF AMERICA

As of March 1990, most jurisdictions in

United States did not have any specific rules
concerning surrogacy. The issue of
surrogate motherhood came to national
attention during the 1980s, with the Baby M
case. 35 The Baby M decision inspired state
legislatures around the United States to pass
laws regarding surrogate motherhood.

Congressional attempts to establish national law concerning surrogacy had failed,

and for the moment the U.S. Congress appeared content to leave the issue to the
states and to the courts. One of the most important federal bills was introduced in
the House on May 14, 1987, by Democrat Tom Luken of Ohio. It would have
prohibited making, engaging in, or brokering a surrogacy arrangement on a
“commercial basis”, that is “under circumstances in which a person who makes,
engages in, or brokers the surrogacy arrangement receives or expects to receive,
directly or indirectly, any payment for the conduct.” The bill would also have
prohibited advertising for surrogacy. It was much like the United Kingdom’s
Surrogacy Arrangements Act, 1985 except that it imposed criminal liability on
commissioning parents and surrogates as well as on go-betweens. It also
prohibited private paid arrangements, thus filling a troublesome loophole in the
British law. During the 1987 session, the Luken bill did not make it out of
subcommittee. An identical bill was introduced in 1989 session. A second
important bill had been introduced by Barbara Boxer (D.-Cal.) and Henry Hyde
(R. –Ill.). That bill imposed criminal sanctions on surrogacy brokers (a maximum
penalty of five years in prison and a $50,000 fine), but no penalties apply to the
surrogate or the contracting couple.36

The Commission on Uniform Laws created a stir when it amended the Uniform
Parentage Act to authorise gestational agreements as valid contracts. According
to the prefatory note to the Uniform Act, the commissioners determined that such

35
109 N.J. 396, 537 A.2d 1227(1988)
36
Martha A. Field, Surrogate Motherhood: The Legal and Human Issues 155 (1990).

18
 agreements had become commonplace during the 1990s, so the law was merely
designed to provide a legal framework for such agreements. However, several
organisations have denied the inclusion of these provisions. As of 2013, two
states, Texas and Washington, had adopted the new Uniform Act, while
legislatures in four other states were considering its adoption. 37

Like New York, a handful of other states either prohibit surrogacy contracts;
refuse to enforce them, or both. For example, Arizona, The District of Columbia,
Indiana, Michigan, and Nebraska prohibit and/or do not enforce surrogacy
contracts.38

3.1.2 UNITED KINGDOM

Laws of England and judicial decisions of Privy Council have always been
guidelines for all the countries within Commonwealth. Here, we are having a
bird’s eye view upon the novel medico-legal situation in U.K. The Surrogacy
Arrangements Act 1985 combines with the sections of the Human Fertilisation
and Embryology Act, 1990 to provide a workable framework within which such
arrangements can take place. One of particular concern relates to the financial
reward a surrogate may receive. The Surrogacy Arrangements Act, 1985 makes
it a criminal offence for commercial surrogacy to be arranged, punished by a fine
and/or upto three months imprisonment. It also prohibits advertising and other
aspects of commercial surrogacy. 39

The United Kingdom has a fairly complicated statutory and case law. The bottom
line is that British law does not forbid even paid surrogacy, although it makes all
surrogacy contracts unenforceable over the objection of the birth mother. The
debate in Great Britain appears, however, to be not about whether to enforce
surrogacy over the birth mother’s objection but about whether to allow the
arrangements to go through even if all parties consent. An early case in Britain
permitted a surrogate mother to repudiate the contract as being against the public
policy. 40

37
Amy M. Larkey, “Redefining Motherhood: Determining Legal Maternity and Gestational Surrogacy
Arrangements” Drake Law Review 51 (March, 2013)
38
D.C. Code S 16-402(a).
39
J.P.S. Sirohi, Criminology and Penology 700 (2012)
40
A vs. C, (1985) F.L.R. 445.

19
 The 1985 Surrogacy Arrangements Act has been criticised for being ambivalent
on the legal status of surrogacy agreements. Section 1(9) states that the Act
governs surrogate agreements 'whether or not they are lawful, and whether or not
they are enforceable'. The Surrogacy Arrangements Act was intended as an
interim measure. There have been other legislative proposals since, but
Parliament has not responded. The Family Law Reform Act, 1987 is the
exception, however, and does substantially affect surrogacy. It does this by
legislation defining who the child’s parent is, and defining it in a way that creates
an obstacle to surrogacy, although it does not altogether defeat it.41

3.1.3 SOUTH AFRICA

The South Africa Children's Act of 2005 (which came fully into force in 2010)
enabled the ‘commissioning parents’ and the ‘surrogate’ to have their surrogacy
agreement validated by the High Court even before fertilisation. This allows the
commissioning parents to be recognised as legal parents from the outset of the
process and helps prevent uncertainty− although if the surrogate mother is the
genetic mother she has until 60 days after the birth of the child to change her
mind. The law permits single people and gay couples to be commissioning
parents. However, only those domiciled in South Africa benefit from the
protection of the law, no non-validated agreements will be enforced, and
agreements must be altruistic rather than commercial. If there is only one
commissioning parent, he/she must be genetically related to the child. If there are
two, they must both be genetically related to the child unless that is physically
impossible due to infertility or sex (as in the case of a same sex couple). The
commissioning parent or parents must be physically unable to birth a child
independently. The surrogate mother must have had at least one pregnancy and
viable delivery and have at least one living child. The surrogate mother has the
right to unilaterally terminate the pregnancy, but she must consult with and inform
the commissioning parents, and if she is terminating for a non-medical reason,
may be obliged to refund any medical reimbursements she had received. 42

Supra at 32
41

Christie Annabel, “South Africa Shows a Way to Ensure More Predictability in Surrogacy Arrangements” Bio
42

News, January 9, 2012.

20
 3.1.4 OTHER COUNTRIES

In Iceland law does not approve surrogacy. According to Icelandic laws, the
surrogate mother’s husband is child’s father. 43

In Belgium altruistic surrogacy is legal, but commercial surrogacy is illegal. In

Quebec the Quebec Civil Code renders all surrogacy contracts, whether
commercial or altruistic, unenforceable. 44

In Hong Kong Commercial surrogacy is criminal under the Human Reproductive

Technology Ordinance 2000. The law is phrased in a manner that no one can pay
a surrogate, no surrogate can receive money, and no one can arrange a commercial
surrogacy (the same applies to the supply of gametes), no matter within or outside
Hong Kong. Normally only the gametes of the intended parents can be used. In
Hungry, Serbia and Pakistan surrogacy is illegal.45

43
Susamma Kurian, “Iceland Accepts Surrogate Baby Born in Thane” Hindustan Times, December 21, 2010.
44
Civil Code of Quebec, Article 541 (1991), “any agreement whereby a woman undertakes to procreate or carry
a child for another person is absolutely null”.
45
“Surrogacy Laws by Country” Available at: http://en.wikipedia.org/wiki/Surrogacy_laws_by_country (visited
on 13.09.2023)

21
 CHAPTER IV

CONSTITUTIONAL AND LEGISLATIVE MEASURES IN INDIA

4.1 LEGISLATIVE MEASURE: OVERVIEW

The world's second and India's first IVF (in vitro fertilisation) baby, Kanupriya
alias 'Durga' was born in Kolkata on October 3, 1978 about two months after
the world's first IVF boy, Louise Joy Brown born in Great Britain on July 25,
1978. Since then, the field of assisted reproductive technology (ART) has
developed rapidly. In 1984 the world saw the first successful birth through
gestational surrogacy and after ten years in India it was first happened in
Chennai. In 1997, an Indian acted as a gestational carrier, and receives payment
for his paralysed husband treatment. In India, the issue came into news when a
Gujarati grandmother gave birth to her daughter’s twins in January 2004. Under
the current Indian legal scenario, the grandmother will be treated as the mother
of her grandchildren though the DNA tests show that they are not her children.
The genetic mother needs to adopt these children before she can legally call
them her own. There are reports that this is not the only incident of surrogacy
in India and there certainly have been many more babies around the country
borne by surrogate mothers. Most such cases remain hidden and anonymous in
India for reasons of social repercussions due to its unacceptability. 46

Fig 3: Constitutional and Legislative Measures

46
Ramesh Vinayak, “A Womb for Rent” India Today 82 (June, 1997)

22
 4.2 INDIAN LEGISLATIVE FRAMEWORK ON SURROGACY

We will understand the role played by various institutions in developing the

guidelines and law on surrogacy such as ICMR, Law Commission, and the
Indian Legislature

4.2.1 INDIAN COUNCIL FOR MEDICAL RESEARCH

The ICMR issued a declaration of particular principles for Assisted

Reproductive Technologies involving Substitution in 2000, and the
recommendations provided various safeguards for surrogates, including 47:

(i) Surrogacy must only be used when it is combined with legal adoption, if it is
possible;
(ii) The assumption that a lady, who bears the kid and bring it to existence, is its
natural mother should be debunked;
(iii) The proposed parents should be given first priority in adopting the child,
includes a six-week postpartum waiting period for the mother's approval;
(iv) Regardless of allowing appropriate payment of remuneration upon completion
of the adoption, the substitution contract will be legitimate, depending upon the
substitute's entitlement to keep the kid if she wants so;
(v) The genetic parents' sole option would be to file a custody claim based on the
child's best interests;
(vi) Abortion for medical grounds under the abortion legislation should be the
substitute's inalienable right, and in such case, the adoptive parents have no
entitlement to the money previously spent;

The Secretary of Family Welfare also announced draft rules for ART clinics on
September 4, 2002. A team created by the ICMR and the National Academy of
Medical Sciences, New Delhi, prepared the draft rules on substitution. 48

47
Ministry of health & finance Welfare (India), ―ART Clinics In India‖(September,2002),
48
Indian Council of Medical Research, National Academy of Medical Sciences (India), National Guidelines for
Accreditation, Supervision And Regulation of Art Clinics In India, New Delhi: Ministry of Health And Family
Welfare, Government of India; 2005.

23
 4.2.2 LAW COMMISSION

Law Commission 228th Report, August 2009 is essential to be looked upon.

Some of the key proposals of Law Commission of India on Surrogacy are:

1. Substitution planning will persist to be controlled by an agreement between the

parties, which will include all of the requirements needing the substitution
mother's approval to have a kid, as well as the acquiesce of their spouse and
other family members. However, such an understanding should not be
commercial in nature.
2. A substitution accord should comprise of provisions for pecuniary help for the
substitute kid for the reason that the commissioning couples or persons die
before the kid is delivered, or if the proposed parents split and no one desires to
get the kid.
3. Life insurance coverage for the substitute mother must be incorporated in each
surrogacy bargain.
4. One among the proposed parents should be a contributor since a biological link
is the primary source of love and affection between a kid and his or her parents.
5. Abortion matters should be regulated and administered solely by the Medical
Termination of Pregnancy Act 1971.

4.2.3 INDIAN LEGISLATURE

Numerous bills on surrogacy have been presented time and again before the
houses of the parliament, these bills are discussed in detail below.

4.2.3.1 Assisted Reproductive Technology (Regulation) Bill 2008

As the national guidelines were not being implemented correctly across the
country, according to input received from various states. As a result, the Indian
Council of Medical Research drafted the ART (Regulation) Bill in 2008. This
bill has been revised again as Assisted Reproductive Technology (Regulation)
Bill, 2013, 2014, 2017 and the Bill of 202049

49
Surrogate Motherhood -Ethical or Commercial, Dr. Ranjana Kumari, Director Centre for Social Research
Available at https://wcd.nic.in/sites/default/files/final%20report.pdf. (Visited on 26.09.23).

24
 Fig 4: All you want to know about Assisted Reproduction

The following are some of the key aspects of the Assisted Reproductive
Technology (Regulation) Bill, 2008 50:

1. With all the legalities in place, India encourages women to rent their wombs.
However, procedural law does not support the legality of the proceeding, when
it comes to governing surrogacy procedure. If the parliament adopts the
Assisted Reproductive Technology (ART) Bill after prolonged discussion, the
'womb on loan' process will be painless and legal.

2. In response to surrogacy, a ready-made Bill grants gays and singles the legal
right to have children by surrogacy care. The word 'couple' refers to two
separate people of two genders who live together and have a good sexual
relationship. If they meet all of these conditions, the two gay men will announce
that they are a couple. The surrogate mother may only be a surrogate mother
between the ages of 21 and 35. She will be permitted only to have five live
births. Her kids include these five births. For the rest of her life, her 6th oocyte
contribution might be viewed as a criminal.

50
Supra at 49

25
 3. When an application is submitted for surrogacy, the child delivered as a
consequence becomes his or her legal child. When an unmarried pair adopts a
child delivered through substitution, the kid becomes their legal child with the
consent of both parents. The proposed pair will assess the complete substitution
expenses during the conception or pregnancy period and supply her with all
financial capital mentioned or needed. It is frequently desirable for the intended
partner and the substitute mother to come to an understanding.

4. The concerned biological proposed parents should accept the surrogate kid.

5. The sale of human embryos or any other component of the human body must
be prohibited by law.

6. The kid born as an outcome of ART therapy should be recognised as lawful

and legitimate in the eyes of the engaged couple

4.2.3.2 The Surrogacy (Regulation) Bill, 2016

J. P. Nadda, Minister for Health and Family Welfare, introduced the Surrogacy
(Regulations) Bill, 2016 in Lok Sabha on November 21, 2016.

Some of the key features of the bill are:51

1. Substitution is defined under the law as a process in which a lady bears a baby
for another couple and decides to deliver the kid over to them after the birth.
2. Bill bans trade substitutes and requires substitutes for altruism. Altruistic
replacement would not require any other financial compensation for the
substitute mother in addition to health and indemnity costs of the time of
pregnancy. Marketable substitution requires substitute and monetary gain or
compensation procedures (cash or sort) beyond necessary medical and
insurance expenditure.
3. An Essentiality Certificate ‘' and a 'certificate of entitlement' should be granted
by the appropriate authority to the intended spouses.
4. A declaration from a District Medical Board stating that one or perhaps both
partners of the relationship are barren.

51
“The new surrogacy bill will stop exploitation of women”, Hindustan Times, August 25, 2016
Available on https://www.hindustantimes.com/editorials/the-new-surrogacy-bill-will-stop-exploitation-of-
women-and-make-way-for-ethical-practices/story-zefLgh17lJpfjg8T8zv1QM.html ( visited on 14.09.2023)

26
 5. The phrase "near relative" isn't defined in the bill
6. The bill outlines the key felonies:
(i). commercial substitution
(ii) exploiting the substitute mother;
(iii) ignoring, searching, or shunning a substitute kid;
(iv) importing or exporting human embryos or gametes

4.2.3.3 The Surrogacy (Regulation) Bill, 2019

The Surrogacy (Regulation) Bill, 2019 was proposed by the Union Cabinet, in the
Lok Sabha on 15th of July 2019, with an aim to promote altruistic surrogacy in
India.52

According to the section 4(ii) of the Surrogacy Bill, 2019, the purposes for which
surrogacy can be permitted are: -53

1. Not for commercialization

2. Just for the sake of altruism

3. Not for the purpose of selling, trafficking, or any other sort of abuse of kids.

4. For pairs who are suffering from established barrenness

5. Any other conditions as specified through regulations.

It sets out guidelines for substitutes. A woman of 25 to 35 years old, a near relation
of the commissioning parents married to at least one child born, should be the
substitute. It should have been a physically and mentally stable person and never
before should have been a surrogate. The surrogate cannot supply her eggs. This
bill only provides substitute status for Indian couples married having proven
infertility for five years or longer, wives between the ages of 23 and 50, and
husbands between the ages of 26 and 55. There is no surviving kid for the intended
pair (biological, adoptive or surrogate), and they shall obtain from the relevant state
or central government authority an Essentiality and Eligibility Certificate. With
many celebrities opting for it, the idea of substitution had become trendy. These

52
Manali Singh, ―Surrogacy in India and its Legal Aspects‖, Pen Acclaims, Vol. 10, page no.1-17, (May,2020).
53
RSTV: IN DEPTH- NEW SURROGACY BILL, INSIGHTS ON INDIA (AUGUST 5, 2019), Available at
https://www.insightsonindia.com/2019/08/05/rstv-in-depth-new-surrogacy-bill/ (visited on 13.09.2023).

27
 boards will create and supervise the surrogacy clinic code of ethics the substitute
mother may reject the agreement before transferring the embryo. She is permitted
for abortion in writing through her authorisation by competent authorities as per the
Medical Termination of Pregnancy Law in 1971. The punishment for infringers
involved with commercial substitution, misuse of the substitute, leaving behind fine
of up to 10 lakh rupees that might be imposed and imprisonment up to 10 years or
exploiting the surrogate child or misuse gametes/embryo for surrogacy. 54

Shortcomings of the bill:

1. The widowed, separated, voluntary single parents and gay couples are not covered
by the bill. Because the freedom to procreate is a basic constitutional right, no one
may be legally prevented from having his or her own natural kid. It is a person's
decision to marry, and denying substitution advantages based on an individual ‘s
marital status is outright discrimination.
2. The bill tries to move reproductive labour out from industry to the families,
neglecting the fact that close family members may not be prepared to accept the
responsibility.
3. Finding an appropriate substitute for the intended parents becomes tough
4. . The bill ignores the needs of the affected Indian substitutes who are transported
over the frontier for commercial substitution.

4.2.3.4 Assisted Reproductive Technology (Regulation) Bill 2020

The Bill, first tabled in the Lok Sabha on 14 September 2020, defines "assisted
reproductive technology" to include all techniques that attempt to obtain a
pregnancy by handling the sperm or the oocyte outside the human body and
transferring the gamete or the embryo into the reproductive system of a woman.
The key features of the bill are:55

1. The Bill provides for establishment of National Registry of Clinics and Banks, which
will act as a central database for details of all the clinics and banks in the country.

54
Surrogacy (Regulation) Bill, 2019, Section 36
55
Assisted Reproductive Technology Regulation Bill proposes national registry of clinics, The Hindu, February
19, 2020 Available at: https://www.thehindu.com/news/national/assisted-reproductive-technology-regulation-
bill-proposes-national-registry-of-clinics/article30864344.ece (visited on 13.09.2023)

28
 2. The Bill also provides for establishment of National and State Boards for Surrogacy
for regulation of ART services.
3. As per the Bill, the sourcing of gametes shall be done only by a registered ART bank.
It may collect semen from males between 21-55 years of age (both inclusive) and
oocytes from females between 23-55 years of age.
4. Section 31 of the Bill provides that the child born through assisted reproductive
technology shall be deemed to be a biological child of the commissioning couple and
the said child shall be entitled to all the rights and privileges available to a natural
child only from the commissioning couple under any law for the time being in force.
5. The Bill provides that assisted reproductive technology clinics shall provide
professional counselling to commissioning couple and woman about all the
implications and chances of success of ART procedures in the clinic.

Fig 5: Assisted Reproductive Technology (Regulation) Bill, 2020

4.2.3.5 Surrogacy (Regulation) Act, 2021, and the Assistive Reproduction

Technology (Regulation) Act, 2021

Rajya Sabha cleared the Surrogacy (Regulation) Bill, 2021, and the Assistive
Reproduction Technology (Regulation) Bill, 2021. The two bills aim to regulate in
vitro fertilization (IVF) clinics and prohibit commercial surrogacy in India. 56 In June

56
Esha Roy, “Surrogacy regulation Bill and ART Bill passed by Rajya Sabha”, Indian Express, 9 December,
2020 ,Available at :https://indianexpress.com/article/india/surrogacy-regulation-bill-art-bill-passed-by-rajya-
sabha-7663054/

29
 2022, in the exercise of the rule-making powers conferred under Section 42 of the
Act, the Ministry of Health and Family Welfare notified the Assisted Reproductive
Technology (Regulation) Rules, 2022.

Assisted Reproductive Technology (Regulation) Act, 2021

1. The Assisted Reproductive Technology (Regulation) Act, 2021, aims to regulate and
supervise assisted reproductive technology clinics and assisted reproductive
technology banks, and prevent misuse.
2. The Act provides that every ART clinic and bank must be registered under the
National Registry of Banks and Clinics of India. The National Registry will be
established under the Bill and will act as a central database with details of all ART
clinics and banks in the country.
3. The Act also lays down conditions for gamete donation and supply.
4. The Act further clarifies that a donor will not have any parental rights over the child
born through ART.

Surrogacy (Regulation) Act, 2021

1. The Surrogacy (Regulation) Act, 2021 allows only the altruistic surrogacy and
prohibits the commercial surrogacy.
2. The intending couple also have to obtain the certificate of essentiality and a
certificate of eligibility issued by the appropriate authority.
3. Only gestational surrogacy is permitted under the Act thereby cutting the biological
link of child with the surrogate mother.

30
 CHAPTER V

ROLE OF JUDICIARY

5.1 JUDICIAL RESPONSE TO SURROGACY IN INDIA

India does not have any law dealing with the complicated issue of surrogate
motherhood. India being a country with plethora of cultural heritage has not been
able to keep pace with the changing scenario in the context of surrogacy. India, a
nation which is often named as 'Surrogacy Hub', still does not have a structured
framework for surrogate motherhood, which is also one of the biggest businesses
running in the country.57

In the Landmark case Baby Manji Yamada vs. Union of India,58 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, a city in the state of Gujarat
where this practice was pioneered. The couple went through matrimonial discord,
with wife not ready to accept the child. The surrogate mother too abandoned her,
but the father still insisted on having custody of the child. In the absence of clear
laws on Surrogacy, the child’s fate hung in the balance.59

The Supreme Court in legitimising surrogacy and equating it with an industry has
re-opened the debate on commercialisation of surrogate motherhood in India.
Linking surrogacy with other forms of outsourcing businesses and identifying
factors like ‘excellent medical infrastructure, high international demand and ready
availability of poor surrogates’ have raised the question on exploitation of women,
abuse of their reproductive organs, lack of choice making capacity and undue
pressure on women to earn money in a patriarchal society. 60

It was observed by the Supreme Court that “commercial surrogacy reaching

industry proportions is sometimes referred to by the emotionally charged and
potentially offensive terms ‘wombs for rent’, ‘outsourced pregnancies’ or ‘baby
farms”. It is presumably considered legitimate because no Indian law prohibits

57
Priya Pareek, “Surrogacy- Concept of Renting a Womb” Available at:
http://legalservicesindia.comarticleprint.php?art_id=921 (visited on 19.09.2023).
58
AIR 2009 SC 84.
59
“India Born Surrogate Baby to Unite with Dad” The Tribune, November 4, 2008.
60
“Revealed: How More and More Britons are Paying Indian Women to Become Surrogate Mothers” The
Telegraph, May 26, 2012.

31
 surrogacy. But then, as a retort, no law permits surrogacy either. However,
changing face of law is now going to usher in a new rent-a-womb law as India is
set to be the only country in the world to legalise commercial surrogacy.61

In Jan Balaz vs. Union of India,62 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 new born, 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.”

Recently in the case of H Siddaraju & anr. v. Union of India & others.63 the
Karnataka High court has evolved a triple test theory to permit a couple to
undertake the procedure of surrogacy, which otherwise was not permitted to them
as the husband being 57-year-old has crossed the age eligibility criteria, under the
Surrogacy (Regulation) Act, 2021. The triple test evolved is as follows:

The triple test laid down by the court was as follows:

1. Genetic Test: The court had asked the husband to undergo a genetic test for
determining the health of the sperm in order to ensure that the child is not born
with any deformity or disorder.
2. Physical Test: The couple must have physical capacity to handle the child.
Physical capacity has to be given the meaning of that the couple is capable of
managing the child.
3. Economic Test: The intending couple must be economically sound and should
not lead the child to penury the moment it is born.

5.2 JUDICIAL RESPONSE TO ADOPTION OF SURROGACY BY LGBTQ+

Surrogacy is also resorted to by gay couples in India. In Devika Biswas vs Union

of India64, the Apex Court accepted the reproduction right as a necessary

61
Anil Malhotra, “Business of Babies” The Tribune, December 14, 2008.
62
2010 (2) ALL MR (Journal) 14.
63
2023 LiveLaw (Kar) 162
64
(2016) 10 SCC 726.

32
 component of Article 21's 'right to life'. Women's reproductive rights comprise
the right to bring a foetus to full span of time, delivers a kid, and bring up kids.
The privacy rights, decency, and inviolability are also included. Article 21 is
violated by limiting substitution to married couples and widowed or divorced
when women of a specific age range refuse reproductive alternatives to LGBT
persons, individuals, and elderly couples.

A gay married couple Greg and Rob from Washington did not face any problems
taking their daughter back to US as Washington state laws recognise commercial
surrogacy. Incidentally, the Australian government is now contemplating a ban on
commercial surrogacy from India. Several nations are also witnessing a moral
churning of sorts as far as the gestation of their future generations is concerned.65

In K.S Puttaswamy vs Union of India 66, interference by the state in procreation

is a direct infringement on one's right to procreate and ―right to privacy‖ and
Article 21 recognises it as a component of one's right to life. The Indian legal
system has never permitted surrogacy. There is no legislation for substitution,
apart from a Bill of 2019 which is in wait list in legislature due to various legal
issues, even though the Indian judiciary has approved surrogacy in many cases.

65
Bella Jaisinghani, “Rows May Hit the Surrogacy Industry” The Times of India, May 11, 2012.
66
(2017) 10 SCC 1.

33
 CHAPTER VI

CONCLUSION AND SUGGESTIONS

One of the essential requirements of institution of marriage is procreation of

child. Women are blessed with the privilege of having womb and creation of a
child. Giving birth to a child is celebrated in our country. Also, in our country
women are regarded as wives only when they have children. But this privilege
is not available to all women and some are not able to celebrate this occasion
due to the bareness of either of spouses. For achieving the goal of procreation of
child various methods are available. Such methods are IVF or even surrogacy.

Surrogacy has gained popularity over the years and many couples have used it
as means to complete their family. But the issues involved in it are endless
because there are numerous questions still left to be answered. Even though now
we have an Act on Surrogacy but the Act suffers from serious lacunaes such as
firstly, the Act does not provides the benefit of surrogacy to the LGBTQ+
couples thereby violating their rights under Art. 14 and 21 of the constitution,
secondly Section 2(s) of the Surrogacy (Regulation) Act 2021 does not take into
consideration the unmarried woman who aims to opt for surrogacy, thirdly even
though altruistic surrogacy is permitted but at the same time finding a surrogate
mother is a challenge in itself, fourthly the Act aims to ban commercial surrogacy
rather than regulating it, fifth the Act permits only Indian citizens to go for
surrogacy and does not allow the foreigners and NRI’s to opt for same and lastly
surrogacy as a concept still has number of societal stigmas attached to it.

Therefore, it is suggested that whenever a bill is passed detailed and elaborate

discussion should be done on the provision intended to be incorporated rather
than passing the bill hastily. Also, as the Act formulated still suffers from the
defect there is a need that the Act be amended and incorporate the surrogacy as
a right to LGBTQ+ couples, unmarried woman, unmarried and single men and
couples of live in relationship. Also, the parliament must formulate provisions
answering or clarifying the issues discussed above.

34
 BIBLIOGRAPHY

PRIMARY SOURCES

1. The Constitution of India, 1950

2. Law Commission 228th Report, August 2009
3. Article 16 (1) of Universal Declaration of Human Rights, 1948
4. Civil Code of Quebec, Article 541 (1991)

SECONDARY SOURCES

Books:

1. Gail Dutton, A Matter of Trust: The Guide to Gestational Surrogacy

2. Irvi H. Thakkar, “Is Surrogate Motherhood Moral?”
3. Nandita Adhikari, “Surrogate Motherhood” Law and Medicine
4. Anita Stuhmcke, “For Love or Money: The Legal Regulation of Surrogate
Motherhood”
5. Martha A. Field, Surrogate Motherhood: The Legal and Human Issues
6. J.P.S. Sirohi, Criminology and Penology

Journals

1. Manali Singh, ―Surrogacy in India and its Legal Aspects‖, Pen Acclaims, Vol.
10, page no.1-17, (May,2020)
2. Amy M. Larkey, “Redefining Motherhood: Determining Legal Maternity and
Gestational Surrogacy Arrangements” Drake Law Review 51 (March, 2013)
3. Barbara S. Parish, “Test Tube on Trial: Let California Blaze the Trail to the
Legitimation of Surrogacy”
4. Grayee P. Storey, “Ethical Problems Surrounding Surrogate Motherhood”
5. Kush Kalra, “Surrogacy Arrangements; Legal and Social Issues” Journal of Law
Teachers India 125 (2010)

Newspaper

1. “India Born Surrogate Baby to Unite with Dad” The Tribune, November 4, 2008.
2. “Revealed: How More and More Britons are Paying Indian Women to Become
Surrogate Mothers” The Telegraph, May 26, 2012.

35
 3. Anil Malhotra, “Business of Babies” The Tribune, December 14, 2008.
4. Susamma Kurian, “Iceland Accepts Surrogate Baby Born in Thane” Hindustan
Times, December 21, 2010
5. Bella Jaisinghani, “Rows May Hit the Surrogacy Industry” The Times of India,
May 11, 2012
6. Esha Roy, “Surrogacy regulation Bill and ART Bill passed by Rajya Sabha”,
Indian Express, 9 December, 2020
7. Assisted Reproductive Technology Regulation Bill proposes national registry of
clinics, The Hindu, February 19, 2020
8. “The new surrogacy bill will stop exploitation of women”, Hindustan Times,
August 25, 2016

Case Laws

1. Baby Manji Yamada vs. Union of India AIR 2009 SC 84.

2. Jan Balaz vs. Union of India 2010 (2) ALL MR (Journal) 14
3. Devika Biswas vs Union of India (2016) 10 SCC 726.
4. K.S Puttaswamy vs Union of India (2017) 10 SCC 1

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