SURROGACY, ASSISTED

REPRODUCTIVE TECHNOLOGY :

LEGAL, ETHICAL AND HEALTH ISSUES

Dr. PADMINI S. PATHAK

B. Com., LL.M, Ph. D (Law)
Infertility-Global Health Problem
• Rabindranath Tagore described children as ‘a
message of joy from heavenly garden’.
• There has been constant yearning for children
among parents.
• To have a child and start a family is generally the
urge of every human being
• This urge has been cursed by infertility.
• Every year 60 to 80 million couples suffer from
infertility globally.
• Approx.15 to 20 million of the Indian couples are
infertile.
• (Infertility- not being able to conceive after one
year of unprotected sex. Infertility can be treated
with medicines, surgery, intrauterine insemination,
or assisted reproductive technology)
 Psychological and Social
Consequences of Infertility
• For many infertile men and women, being
unable to bear children and raise them have
severe emotional and psychological
consequences
• Kinship and family ties are dependent on
progeny.
• There is social stigma on infertility in India.
• There is an extreme desire for motherhood
amongst women.
All these factors lead them to search for
alternative solutions for the problem of infertility.
Remedies to infertility in Pauranik times

• In pauranik stories also we find the

references of humans having attempted to
find answers to infertility by worshipping the
deities or through surrogacy for begetting a
child.
• In Ramayana, Raja Dashratha arranged
Putrakameshti yagnya. Agni sprang from the
yagnyakunda (sacrificial pit) and handed
Dashratha a pot of kheer to be distributed
amongst his queens to beget children. The
queens of Dashratha remained pregnant
after consuming the kheer and gave birth to
Ram, Laxman, Bharat, Shatrughna.
Surrogacy in Indian Mythology
• Roots of surrogacy can be traced back to our
mythological past. Lord Krishna’s brother Balram
who was the seventh child of Devaki and Vasudeva
was transferred to the womb of Rohini (Vasudeva’s
first wife) to protect her from Devaki’s brother
Kansa. Rohini acted as a surrogate mother to the
intended parents (Devaki and Vasudev). Thus,
Indian mythology has looked at surrogacy as a way
to create or protect families and not a procedure to
be frowned upon.
Remedies to infertility in modern times
• Modern science has equipped human being with reliable techniques
of reproduction.
• Assisted Reproductive Technology (ART) and surrogacy have
become viable alternatives for many infertile couples.
• Assisted Reproductive Techniques involve the laboratory
preparation of gametes, artificially bringing them together and hence
enhancing fertility by either bypassing an absolute obstruction to
fertilisation or boosting fecundity.
• (Gametes means sperms and oocyte, see S.2 (g) ART Act, 2022)
• The development of methods of assisted reproductive technology
(ART) has been a major breakthrough in the treatment of infertile
couples.
• ART may also be favoured over adoption as the progeny is
genetically related at least to one of the parents.
 ART-MEANING OF
“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.”
(S.2 (a)Assisted Reproductive Technology
Act, 2021)

It is a technique of reproduction
without coitus
 Types of Assisted
Reproductive Technology

• AIH - Artificial insemination with the semen of

husband into the uterus of wife
• AID - Artificial insemination with the semen of
donor into the uterus
• Cryo preservation - The gametes and embryos
are stored in liquid nitrogen at – 196 degree
centigrade to be used after prolonged period and
possibly after death of the person whose gametes
or embryo prepared from whose gametes are used.
• Egg- Donation - Donor eggs are fertilized with
the sperms of male partner of a woman and
embryo is transferred to her uterus
 Types of Assisted Reproductive
Technology
• Embryo Transfer- Embryo is injected into the
lining of the uterus six to ten days after retrieval
• Surrogacy- 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 birth.
• Gestational surrogacy- A practice whereby a surrogate mother
carries a child for the intending couple through implantation of
embryo in her womb and the child is not genetically related to
the surrogate mother. Expln. to S. 4 (a) of the Surrogacy
(Regulation) Act, 2021
• Traditional surrogacy- A couple or single person contracts
with an outside party i.e. a surrogate and the outside party’s own
eggs are fertilized via insemination of sperms.
 Types Of Assisted Reproductive
Technology
• IVF - In Vitro Fertilization an egg is fertilized by
sperm out of utero and resulting embryo is then
transplanted into the uterus wall.
• GIFT - Gamete Intrafallopian Transfer- Gametes
(Eggs and Sperms) are transferred to the woman’s
fallopian tube
• ZIFT -Zygote Intrafallopian Transfer-
Laparoscopic transfer of Zygotes (day one fertilised
eggs) into the woman’s fallopian tube.
• ICSI - Intracytoplasmic Sperm Injection- One
sperm is directly injected into each mature egg prior
to intra-uterine transfer of the fertilised eggs.
• TGIV- Tri-Gametic In Vitro Fertilization-
Extraction of eggs from two women and combined
with genetic material removed from the sperm
 Assisted Reproductive Technology,
Surrogacy and the legislative void
• India became the ‘surrogacy capital of the
world’ with turnover of $ 500 millions
reproductive tourism in India which became a
global baby factory due to the legislative void.
• Legislative void- Surrogacy (essentially
commercial) was being briskly carried out in India
without any efforts by the Government to set up a
statutory regulatory mechanism.
• Indian Council for Medical Research (ICMR)
formulated certain Guidelines in 2005. However,
these Guidelines did not have any statutory basis
and surrogacy continued to remain an unchartered
territory in the Indian legal landscape.
Legislative void and misuse of
surrogacy
• Examples of Misuse of Surrogacy in India:
• In 2008 a Japanese couple began the process with a
surrogate mother in Gujarat, but before the child was born
they split with both of them refusing to take the child.
• In 2012, an Australian couple commissioned a surrogate
mother, and arbitrarily chose one of the twins that were born
thereby abandoning the other child.
• The Law Commission suo moto took up the issue of
surrogacy for research and submitted its 228th Report in
August 2009 where the Law Commission mooted the proposal
for a revamped legislation to regulate the process of surrogacy
in India.
• Bills of 2008, 2010, 2016, 2019, 2020 were laid before
Parliament.
Objects of The Surrogacy (Regulation) Act 2021

• The Surrogacy (Regulation) Act 2021 was enacted last year

by the Parliament-
• To introduce and regulate the process of surrogacy
• To help infertile women and couples to fulfill their dream
of motherhood and parenthood
• To safeguard the rights and integrity of the surrogate
mothers.
• They are claimed to be progressive legislations which aim
to make surrogacy and assisted reproductive technology
available to infertile people.
 Who can avail surrogacy under the
Surrogacy (Regulation ) Act ?
1. Couple: - “An Indian man and woman above the age
of 21 and 18 respectively, who are legally married”.
Section 2(h)
2. Intending Couple – “A couple who intends to become
parents through surrogacy and there is medical
evidence that necessitates gestational surrogacy.
The married couple should be between the age of 25
to 50 for females and 26 to 55 for males.” Section 2(r)
3. Intending woman: - “A widow or a divorcee who is
between 35 to 45 years of age and intends to avail
this service”. Section 2(s)
 What is surrogacy?
• 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. [s. 2 (r)]
• Surrogate mother means a woman who
agrees to bear a child who is genetically
related to the intending couple or
intending woman through surrogacy from
the implantation of embryo in her womb
and fulfills the conditions as provided in
sub clause (b) of clause (iii) of s. 4. [S.
 Altruistic and Commercial surrogacy
as per the Surrogacy Act
• “Altruistic surrogacy” means the surrogacy in which no
charges, expenses, fees, remuneration or monetary incentive of
whatever nature, except the medical expenses and such other
prescribed expenses incurred on surrogate mother, and the
insurance coverage for the surrogate mother, are given to the
surrogate mother or her dependents or her representative. S.2(b)
• “Commercial surrogacy” means commercialisation of
surrogacy services or procedure or its component services or
component procedures including-
• selling or buying of human embryo or
• trading in the sale or purchase of human embryo or gametes or
• selling or buying or trading the services of surrogate motherhood
by way of giving payment, reward, benefit, fees, remuneration or
monetary incentive in cash or kind, to the surrogate mother or
her dependents or her representative, except the medical
expenses and such other prescribed expenses incurred on the
surrogate mother and the insurance coverage for the surrogate
mother. S. 2(g)
 Surrogacy shall be only for the
following purposes
• When intending couple has medical indication
necessitating gestational surrogacy, (when the
intending couple has obtained certificate of
recommendation from the Board)
• When the child is not genetically related to
the surrogate mother,
• When it is only for altruistic surrogacy
purpose,
• When it is not for commercial purpose,
• When it is not for producing children for sale,
prostitution or any other form of exploitation
 Conditions for availing surrogacy
for the intending couple
• Intending couple is in possession of Certificate
of Essentiality issued by appropriate authority
• Certificate of medical indication is issued by
District Medical Board in favour of either or both
members of the intending couple or intending
woman necessitating gestational surrogacy
• Certificate of Recommendation from the
Board
• Parentage and custody order of the child to be
born through surrogacy has been passed by a
court of the Magistrate of first class which shall
be the birth affidavit after the surrogate child is
born.
 Conditions for availing surrogacy
for the intending couple
• That the child is not genetically related
to the surrogate mother. [s.4(ii) (a)
Expln.]
• That the surrogacy is only for altruistic
purpose and not for commercial purpose
[s.4 (ii) (b)]
• That the surrogacy is not for producing
children for sale, prostitution or any
other form of exploitation [s. 4 (ii) (d)]
• An insurance coverage in favour of
surrogate mother for 36 months covering
 Conditions for availing surrogacy for the
intending couple
• The intending couple is issued an eligibility
certificate by an appropriate authority which shall be
issued if- [s.4 (c) ]
• They are a legally married Indian man and woman,
• They are between the age of 23 to 50 years in case of
female and between 26 to 55 in case of male on the day
of certification.
• The intending couple have not had any surviving child
biologically or through adoption or through surrogacy
earlier
• Provided that nothing contained shall affect the
intending couple who have a child and who is mentally or
physically challenged or suffers from life threatening
disorder or fatal illness with no permanent cure and
approved by the appropriate authority with due medical
 Conditions for becoming a surrogate
mother
• The surrogate mother is in possession of
eligibility certificate issued by appropriate
authority which shall be issued on following
conditions [S. 4(b)]–
• She is an ever married woman having child of her
own,
• She is of the age between 25 to 35 years on the day
of implantation,
• She shall not provide her own eggs or oocytes,
• She is a willing woman to act as a surrogate,
• She shall not act as a surrogate mother more than
once in her lifetime,
• She has obtained a certificate of medical and
psychological fitness from a registered medical
Additional Conditions for Surrogacy
• All the known side effects and after effects
of such procedure shall be well informed to the
surrogate mother.
• [s.6(1) (i)]
• Written informed consent shall be obtained
from the surrogate mother, in the language she
understands.
• [s.6 (1) (ii)]
• Surrogate mother has an option to withdraw
her consent for surrogacy before implantation
of embryo in her womb.
• Surrogate mother shall not be forced to abort
at any stage of surrogacy except in such
 Key features of the Surrogacy
(Regulation) Act 2021
• Commercial surrogacy is strictly
prohibited and only altruistic surrogacy can
be practiced.
• Any place including surrogacy clinic shall be
used or caused to be used for conducting
surrogacy or surrogacy procedure for following
purposes-
• For altruistic surrogacy purposes
• Not for commercial purposes or for
commercialization of surrogacy
• Not for producing children for sale,
prostitution or any other form of exploitation
Key features of the Surrogacy Act
• The Act makes the practice of commercial surrogacy
a punishable offence with imprisonment of up to 10
years and fine up to Rs. 5 lakhs.
• Person seeking commercial surrogacy is
punishable with imprisonment of up to 5 years and
fine up to Rs. 5 lakhs and if found to be indulging in
the same practice again, the imprisonment may
extend up to 10 years and fine up to Rs. 10 lakhs.
No remuneration is to be paid to the surrogate
apart from the expenses that might be prescribed
like insurance coverage or medical expenditure.
 Key features of the Surrogacy Act
• The intending couple or intending woman shall
not abandon the child born out of surrogacy
procedure whether within India or outside for
any reason whatsoever, including but not
restricted to, any genetic defect, any other
medical condition, the defects developing
subsequently, sex of the child or conception of
more than one baby and the like.[s. 7]
• A child born out of surrogacy procedure shall
be deemed to be a biological child of the
intending couple or intending woman and the
said child shall be entitled to all the rights and
privileges available to a natural child under
Key features of the Surrogacy
Act
• A National Reproductive Technology
and Surrogacy Board shall be set up which
shall lay down a Code of Conduct to be
observed by persons working at ART clinics
and banks and also set minimum standards
of physical infrastructure, laboratory and
diagnostic equipment and expert manpower
to be employed by clinics and banks. The
Board shall also supervise the functioning of
the Registry. [s. 17]
• The central and State Govts. Shall
appoint one or more Appropriate
Authorities.[s. 35]
Key features of the Surrogacy
Act
• Powers of Appropriate Authority
• Summoning of any person who is in possession of
information relating to violation of the provisions of the
Act
• Production of any document or material object relating
to clause (a)
• Search any place suspected to be violating the
provisions of this Act and the Rules and Regulations made
thereunder; and
• Such other powers as may be prescribed
• The appropriate authority shall maintain the details of
registration of surrogacy clinics, cancellation of
registration, renewal of registration, grant of certificates
to the intending couple and surrogate mother or any other
matter pertaining to grant of license, etc. of the surrogacy
clinics and submit the same to the NART and Surrogacy
Key features of the Surrogacy
Act
• Functions of Appropriate Authority
• To grant, cancel, suspend the registration of surrogacy
clinic
• To enforce the standards to be fulfilled by the clinic
• To investigate the complaints of breach of the Act
• To take appropriate legal action in case of breach
• To supervise the implementation of the provisions
• To take action against the surrogacy clinic after
investigation
• To recommend to the board about the modifications
required in the rules and regulations
 What is penalised under the
Surrogacy Act?
• Commercial surrogacy [s. 38]
• Advertisements regarding commercial surrogacy in any
manner
• Abandon or disown or cause to be abandoned,
disowned or exploited in any form the child or children
born through surrogacy
• Exploit or cause to be exploited the surrogate mother
• Sell human embryo or gametes for the purpose of
surrogacy and run an agency, a racket or an organisation
for selling, purchasing or trading in human embryos or
gametes for the purpose of surrogacy
• Import human embryo or help in getting imported in
the human embryo or human gametes for surrogacy or
for surrogacy procedures.
• Conduct sex selection in any form for surrogacy
 Need for the Surrogacy Act to
become more inclusive
• The Act allows only following categories to avail the
surrogacy services -
• Intending couple who is a legally married man and woman (So
only heterosexual married couples qualify).
• Intending woman who is divorcee or widow.
• The Act excludes the following categories from availing the
surrogacy services –
• Single unmarried men,
• Divorced men,
• Widowed men,
• Unmarried yet cohabiting heterosexual couples,
• Trans persons and homosexual couples (whether married
or cohabiting),
• Members of LGBTQ community,
 Need for the Act to become more inclusive
• The Act also exclude the couples suffering from
secondary infertility.
• In secondary infertility you are unable to conceive or
carry a baby to full term after having a previous
successful pregnancy. In such cases in vitro
fertilization is one of the treatments. Such couples
suffering from secondary infertility would not be able
to procreate second child through surrogacy even if
they are wanting the child.
• This is infringement of their right of reproduction which
is an essential facet of the right to life under Art. 21 of
the Indian Constitution. Right to reproduction includes
the right to carry a baby, giving birth and raising them.
 Art. 14 of the Constitution
• Art. 14 – The State shall not deny to any person
equality before the law or the equal protection of the
laws within the territory of India.(prohibition of
discrimination on the grounds of religion, race, caste,
sex or place of birth). It is one of the most important
fundamental right guaranteed to the citizens of India.
• Exclusion of a section of society from availing
surrogacy makes the provision constitutionally
invalid- Allowing surrogacy rights only to a married
couple and widowed or divorcee woman to the
exclusion of all others bears no nexus whatsoever the
object of the Act. Also, such a provision cannot stand
the test of constitutional validity.
 Art. 21 of the Constitution
• Art.21 –No person shall be deprived of his life or
personal liberty except according to procedure
established by law.
• The right to life is not just about right to survive.
It also entails being able to live a complete life of
dignity and meaning.
• The chief goal of this article is that when the
right to life or liberty of a person is taken away
by the state, it should only be according to the
prescribed procedure of law.
• Judicial intervention has ensured that the scope
of Art. 21 is not narrow and restricted. It has
been widening by several landmark judgements.
Right to reproduction- Right to life
• Right to reproduction is held to be one of
the facets of right to life under Art. 21 of
the Constitution of India which is a
fundamental right guaranteed to every citizen
of India.
• Surrogacy Act does not allow single unmarried
man, divorced man or widower to engage a
surrogate for reproduction.
• Also, it does not allow single woman, same sex
couples, etc, to engage a surrogate for
reproduction.
• Thereby it deprives them of exercising right to
reproduction. There is no reasonable
 Right of reproduction upheld by SC
• In Devika Biswas v. Union of India (2016) 10 SCC 726 the
Apex Court held that right to reproduction was an essential
facet of the right to life under Art. 21 of the Indian Constitution.
Right to reproduction includes the right to carry a baby, giving
birth and raising them.
• In X v. The Principal Secretary Health and Family Welfare
Dept., Delhi NCT Govt. & anr., the SC held, "The right to
reproductive autonomy is closely linked with the right to bodily
autonomy. As the term itself suggests, bodily autonomy is the
right to take decisions about one’s body."
• Thus, restricting surrogacy to a particular group of age among
heterosexual couples only creates a partial imbalance. The
communities such as single people, older couples, LGBTQ
couples, are all completely denied the right to have
reproductive choices.
Right of reproduction upheld by
courts
• Skinner v. Oklahoma- (316 US 535)
• The personal decisions of the individual about the birth and
babies called 'the right of reproductive autonomy' is a facet of a
'right of privacy.' The American Supreme Court characterized the
right to reproduce as a "one of the basic civil rights of man."
• B.K. Parthasarthi v. Govt of Andhra Pradesh
AIR 2001 AP 2000
Decision of reproduction falls within right to
privacy.
• Justice K. S. Puttaswamy v. Union of India
(2017) 10 SCC 1
Reproductive choices of women is their
constitutional
Criticism on not allowing surrogacy
to others
• Surrogacy is allowed to arbitrarily selected persons. The Act
disqualifies people from availing surrogacy on the basis of
marital status, sex, sexual orientation.
• In Navtej Singh Johar v. Union of India (2018) the
criminalization of homosexuality u/sec 377 of IPC was struck
down by Supreme Court. Excluding the same sex couples and
LGBTQ community from availing surrogacy services infringes
their fundamental right of reproduction under the Constitution of
India.
• In X v. The Principal Secretary Health and Family Welfare
Dept., Delhi NCT Govt. & Anr., The SC allowed the single
unmarried woman to terminate pregnancy then why the Act
taboos the pregnancy of single unmarried women through
surrogacy?
 Criticism on Surrogacy Act
• Too much power is given to the
Appropriate Authority and the Board. The
issue of –
• Certificate of Recommendation for the
intending couple or the intending woman from
the Board
• Certificate of Essentiality for the intending
couple
• Certificate of Eligibility for the intending
couple
• Certificate of Eligibility for the surrogate
mother
vests in the hands of the appropriate authority
 Criticism on banning Commercial
surrogacy
• Legalizing commercial surrogacy would -
• In fact prevent an illegal market of vulnerable surrogates being put
to dangerous situations.
• It helps in raising the living standards of the financially insecure
section of the society. Money provided to the surrogate is for her to
improve her standard of living and acts as her livelihood.
• It also keeps in check the illegal means of surrogacy which might
take place due to complete ban on commercial surrogacy instead of
regulation and control over the same.
• Countries like Israel, South Africa and Russia provide model laws
for state governed commercial surrogacy services.
• A woman is prohibited from being a surrogate mother more than
once. Thus, commercial surrogacy cannot be used as a way of
livelihood or misused anyway. [S. 4(iii) (b) (IV)]
Judgements upholding commercial
surrogacy contracts valid
• In Jan Balaz v Anand Municipality and others
• AIR 2010 Gujarat 21
• German twins Leonard and Nikolas born to a surrogate mother in
Gujarat in 2008 were caught in a legal wrangle because German
laws do not recognize surrogacy or surrogacy agreements.
• The Gujarat High court held that in the absence of any legislation,
the birth mother of the child will be the legal mother irrespective
of genetics. The Gujrat High Court decided to give the child in
question an Indian passport though it was commercial surrogacy.
The German embassy insisted that “under German law, a child
born by an Indian woman who is married to an Indian national
has no legal relationship with the German commissioning
parents” but that “[i]ssuing the children with a visa for the purpose
of adoption in Germany could be considered.”
 Judgements upholding commercial
surrogacy contracts valid
• In Baby Manji Yamada v Union of India & Anr.
AIR 2009 SC 84
• Dr. Ifukumi Yamada and Dr. Yuki Yamada were the Japanese
biological parents of the child born to an Indian surrogate.
• Surrogacy however is prohibited in Japan and the Japanese Civil
Code recognises only the birth mother as the legal mother.
• Anand Municipality issued a birth certificate indicating the name of
the genetic father.
• Baby Manji could not acquire Indian citizenship because her only
legally recognized parent, Dr. Yamada, was not an Indian citizen.
There were matrimonial discords between the biological parents.
• Baby Manji was issued a certificate of identity instead of passport
by Regional Passport Authority, Rajasthan to facilitate her transit
out of Indian Territory.
• The SC recognized that the parents may be single or homosexual
Judgements upholding commercial
surrogacy contracts valid
• Re C (A Minor) (Wardship: Surrogacy)
In Britain, this was the first case of commercial surrogacy
that arose in 1985. The courts accepted the commercial
surrogacy though it held the surrogacy contracts against
public policy.
• Australian academic S.R. Anleu has written how nothing
can be as undignified an indecent as obsequious poverty
and when woman undergoing commercial surrogacy were
interviewed it was revealed how 3000 USD equated to
their family income for 4-5 years.
 Judgements upholding commercial
surrogacy contracts valid
• In Johnson v Calvert 851 P.2d 776 (Cal. 1993), Anna Johnson, the gestational surrogate, agreed to
carry and deliver the genetic child of Mark and Crispina Calvert. However, when the relations turned
sour during the pregnancy, the surrogate decided to keep the child she carried. The parties went to
the court asserting their parental rights.
• The court held that both the surrogate, as the woman who gave birth to the child, and the wife, as the
genetic parent, qualified as the child's mother under the California Uniform Parentage Act. But, as
the California law recognized only one natural mother for every offspring, the court declined to hold
that the child had two mothers and held that only the wife was the child's mother because she was
the woman who had intended originally to be the legal parent. She arranged and bargained for the
surrogacy, and she originally held the "mental concept" of the child, all of which entitled her to be
recognized as the child's parent. The court used the surrogacy contract as evidence of the parties'
intent. The California Supreme Court held, “surrogacy does not turn children into commodities
despite the fact that they are effectively the subject of contract.” It further held, “economic
necessity is a reality for many women who become surrogate mothers and this economic reason
does not make surrogacy arrangement indecent or undignified.”
Petition challenging the Constitutional
validity of the Acts
• An IVF specialist Arun Muthuvel from Chennai has filed a
petition in the SC challenging the various provisions of the
ART Act 2021, The Surrogacy Regulation Act 2021, The
Surrogacy Regulation Rules 2021 in the month of September.
• According to the petition:-
• The Act imposes a “restrictive regime which gravely
impinges upon the most basic reproductive rights of an
individual”.
• “The impugned Acts through their discriminatory,
exclusionary and arbitrary nature deny agency and
autonomy in the discourse on reproductive justice and
provide a state sanctioned notion of the ideal family that
restricts reproductive rights”.
 Petition challenging the validity
• The petition highlights another violation of fundamental right of
privacy under Art 21 of the Constitution of India. The Act requires a
variety of public dissemination of information about the couple’s
infertility in the form of
• A certificate of recommendation from the board [s.4(ii)(a)]
• A certificate of essentiality from the appropriate authority [s. 4 (iii)
(a)]
• A certificate from District medical Board [s. 4(iii)(a)(1)]
• Order of parentage from Magistrate’s court [s. 4(iii) (a) (II)]
• Eligibility certificate from the appropriate authority[s. 4(c)]
• An oocyte donor can donate only once in her lifetime. This as per
the petition, implies that the number of egg donors will be totally
restricted and the cost of obtaining the oocyte would be exorbitant.
S. 27(2)
Petition challenging the validity
• Artificial classification and categorization- There are
blatant inconsistencies which create artificial classification
and categorization. E. g.-
• Under the ART Act “woman” defined to mean any woman
above the age of 21 years. However,
• Under the Surrogacy Act sec. 4(iii) categorizes woman into
two categories
• First, as part of intending couple being a woman between
the age of 23 and 50 [s. 4(iii) (c )(1)]
• Secondly, as an intending woman as an Indian woman who
is a widow or divorcee between the age of 35 to 45 [s. 2(1)
(s)].
• These inconsistencies cause structural hindrances.
 Objects of the Assisted Reproductive
Technology Act 2021
• Prevention of misuse of ART
• Safe and ethical practice of ART services
• Addressing the issues of reproductive
health where ART is required for becoming
a parent or for freezing gametes, embryos,
embryonic tissues for further use due to
infertility, disease or social or medical
concerns
• Regulation and supervision of research
and development and for matters
connected therewith or incidental thereto
 Who can avail Assisted Reproductive
Technology as per ART Act 2021?
• The following can avail the services of ART
clinics or banks [s. 21 ]:-
• Commissioning couple
• Woman
• Donors
• Commissioning couple is defined as “an
infertile married couple who approaches an
ART clinic or bank for obtaining the authorized
services of the clinic or bank. S. 2 (e)
• Woman has been defined as “any woman
above the age of 21 years and approaches an
ART clinic or bank for obtaining the authorized
services of the clinic or bank. S.2 (u)
Definitions under ART Act 2021
• Commissioning couple:- means an infertile
married couple who approach an assisted
reproductive technology clinic or assisted
reproductive technology bank for obtaining the
services authorized of the said clinic or bank.
• Patient:- means an individual or couple who comes
to any registered assisted reproductive technology
clinic for management of infertility.
• Gamete donor:- means a person who provides
sperm or oocyte with the objective of enabling an
infertile couple or woman to have a child.
• Woman :- means any woman above the age of
twenty-one years who approaches an assisted
reproductive technology clinic or assisted
reproductive technology bank for obtaining the
Persons entitled to avail the services
of ART clinic/bank under the ART Act
2021
• The clinic shall apply the assisted
reproductive technology services-
• (i) to a woman above the age of 21 years
and below the age of 50 years,
• (ii) to a man above the age of 21 years and
below the age of 55 years,
• (iii) infertile married couples
• (iv) patients i.e. an individual or couple
who comes to any registered ART clinic for
the management of infertility,
• (v) donors of gametes
Duties of the ART clinic and bank
• Duties of ART clinic and bank (S.21) -
• (a) ensure that commissioning couple, woman and
donors of gametes are eligible to avail the assisted
reproductive technology procedures subject to such
criteria as may be prescribed;
• (b) the clinic shall obtain donor gametes from the
banks and such banks shall ensure that the donor
has been medically tested for such diseases as
may be prescribed
• (c)provide the commissioning couple professional
counselling
• (d) make all of them aware about the rights of
the child
• (e) ensure that information about the
commissioning couple, woman and the donor
 Anomalies in the ART Act and
the Surrogacy Act
• ART Act allows any individual to take ART
treatment for infertility (see the definition of
patients)
• The ART Act allows any single woman/man above the
21 years to apply the clinic for ART services. S. 21
(g).
• The Surrogacy Act allows only widowed and divorced
women and intended couple to avail surrogacy
services. s.2(s).
• If the legislature allows a single unmarried woman to
inseminate herself for getting pregnant, why can’t
she engage a surrogate?
• If a single man can take treatment for infertility from
the clinic under the ART Act, why can’t he engage a
 Anomalies in the ART Act
and the Surrogacy Act
• S. 22(2) ART Act- The clinic and bank shall
not cryo preserve any human embryos or
gamete without specific instructions and
consent in writing from all the parties seeking
assisted reproductive technology in case of
death or incapacity of any of the parties
• S. 24(f) ART Act- The collection of gametes
posthumously shall be done only if prior
consent of the commissioning couple is
available in such manner as may be
prescribed.
 Anomalies in the ART Act
and the Surrogacy Act
• If a commissioning couple cryopreserves their
gametes with a consent to use them
posthumously and the woman in the couple
dies before using them, as per the ART Act the
man should be able to use the gametes of his
deceased wife for procreation as per her
consent(as the man can be a patient and can
avail the services of ART clinic and Bank for
infertility). However the man has to use a
surrogate for this purpose. But the Surrogacy
Act would not allow him to use a surrogate.
Ethical issues arising from surrogacy
• The child born out of surrogacy, on coming to
know that he/she is born out of surrogacy may
wish to meet birth mother.
• The child gets separated from the surrogate
mother immediately after the birth thus loosing
the advantages of breast milk.
• During the subsistence of the agreement of
surrogacy if any mishap occurs with the intending
parents, who will take the custody of the child?
• During the subsistence of the surrogacy
agreement if the intending parents undergo
matrimonial discord during the surrogacy contract
and refuse to take the custody of the child what
shall be the fate of the child?
 Ethical issues continued
• Emotional and mental problems for
surrogates-
• Does the surrogate mother lose her
bodily autonomy? Even though a
surrogate mother is free and conscious,
there is always a possibility for her to
repent for carrying and delivering the
baby that does not belong to herself. In a
study carried by one Vasanti Jadva in
United Kingdom with 34 surrogate
mothers, it was revealed that the
surrogate mothers faced some emotional
 Ethical issues continued
• The surrogate mother may refuse to give the baby back to the
intended parents.
• The psychodynamic aspects and the postpartum separation of
surrogate mother from the new born may result in a mourning
reaction. Surrogate mother may feel emotionally engaged with the
baby and may refuse giving back the baby.
•In Baby M case, the question as to who is the legal mother
arose which involved the artificial insemination of a woman.
Mary Beth Whitehead, a surrogate, refused to give back the
child born with the semen of William Stern, a man who was not
her husband. The Supreme Court of New Jersey held the
surrogacy contract invalid as per the prevalent law and held that
the natural mother retained her parental rights. But the court
awarded the custody to the child’s natural father and his wife on
the analysis of child’s best interest
•109 N.J. 396, 537 A.2d 1227 (NJ Sup Ct, 1988).
 Ethical issues continued
• The surrogate mother is immediately
separated from the child born to her out of
surrogacy after the birth of the child to avoid the
emotional involvement of the surrogate mother with
the child.
• The is deprived of her right to life u/Art. 21 of the
constitution of India i.e. right to breast milk.
• Initiation of breastfeeding within the first hour after
the birth; exclusive breastfeeding for the first six
months; and continued breastfeeding for two years
or more, together with safe, nutritionally adequate,
age appropriate, responsive complementary feeding
starting at completion of sixth months. (WHO and
UNICEF Recommendations)
 Health benefits of breast feeding
for mother
• Less postpartum bleeding & more rapid uterine
involution
• Reduced risk of breast and uterine cancer
• Increased child spacing (lactational amenorrhea)
• Possible reduction in hip fractures after menopause
• Type 2 diabetes mellitus 4-12% less for each year
of BF
• Pre-menopausal breast cancer 4.3-28% less for
each year of BF
• Ovarian cancer 21% less for any vs. no BF and
evidence for dose response
• Postpartum depression less for short term BF vs.
no breastfeeding
Benefits of breastfeeding to the children
• Optimal breastfeeding of infants under two years of
age has the greatest potential impact on child survival
of all preventive interventions, with the potential to
prevent 1.4 million deaths in children under five
in the developing world

Lancet 2008
• Breastfed children have at least six times greater
chance of survival in the early months than non-
breastfed children

• Breastfeeding drastically reduces deaths from acute

respiratory infection and diarrhoea, two major
child killers, as well as from other infectious diseases
Cognitive benefits for the child
• Human milk
▫Contains fatty acids, nucleotides,
oligosaccharides, and taurine
to enhance neural and retinal
development
▫Enables child to reach full developmental
potential

• Human milk fat

▫Provides essential fatty acids
▫Provides long-chain polyunsaturated fatty
acids, including docosahexaenoic acid (DHA)
and arachidonic acid (ARA)
Breastfeeding and the Use of Human
Milk
• “Human milk is species-specific, and all substitute
feeding preparations differ markedly from it,
making human milk uniquely superior for infant
feeding.”
American Academy of Pediatrics, 2005

• Provides optimal nutrition

• Provides multiple hormones and growth factors
• Easily available, easily digested and at appropriate
temperature
• Promotes emotional bonding
• Provides analgesia to infants during painful
procedures
The child is denied right to know
her genetic origins
• S. 21(f) all clinics and banks shall provide
all information related to –
• (i) enrolment of the commissioning couple,
woman and gamete donor,
• (ii) the procedure being undertaken, and
• (iii) outcome of the procedure, complications,
if any, to the National Registry periodically, in
such manner as may be prescribed
 The child is denied right to know her
genetic origins
• As per the Surrogacy Act the intending woman is
allowed to procreate through surrogacy. It is obvious
that such a woman will have to use donated gametes.
• But as per the ART Act, the clinic and banks shall
ensure that information about the commissioning
couple, woman and donor shall be kept confidential
and the information about treatment shall not be
disclosed to anyone except to the database to be
maintained by the National Registry, in a medical
emergency at the request of the commissioning
couple to whom the information relates, or by an
order of a court of competent jurisdiction. [S. 21 (e)]
• So the child born to an intending woman through
surrogacy and artificial insemination through donated
sperms is prohibited from knowing her genetic father.
 Right to know denied to the
child
• The child born out of donated sperms to an
intending woman as per the Surrogacy Act
shall not be able to know his/her father unless-
• 1) There is a medical emergency or
• 2) there order of the competent court.
• So if the child wants to know his genetic
identity it has to be kept confidential there not
being any medical emergency and he shall not
be revealed the same unless there is a court
order.
Right to know the genetic origins involves
concerns of parents, donor and the child

Concern
s of
Parents

Right
to
Kno
Concern
w Concern
s of
s of
Childre
Donors
n
 CONCERNS OF DONORS

PRIVACY

AVOID DONOR AVOID

INHERITANCE S PATERNITY
CLAIMS SUITS

AVOID
MAINTENANCE
 CONCERNS OF PARENTS

PROTECT UNSURE
FAMILY ABOUT
MAINTAIN RELATION BEST
AVOID
NEGATIVE SECRECY SHIPS TIME AND
SOCIAL ABOUT FAMILY
INFERTILITY
METHOD
REACTIONS PRIVACY
AND TO TELL
DESIRE TO FEAR THAT
ADVERSE MIMIC THE
EXTENDED
EFFECT ON NATURAL FAMILY
CHILDRE
CHILD FAMILY MIGHT N ABOUT
REJECT THE DONATIO
CHILD N
CONCERNS OF DONOR CONCEIVED
CHILDREN
MEDICAL
REASONS

Personal
SELF ESTEEM &
Autonomy & IDENTITY
Human Right

PSYCHOLOGICAL AVOID
CONCERNS DISCRIMINATION

AVOID
CONSANGUINITY/
INCEST
 Right to know genetic origins
medical importance for the child
• KNOWING FAMILY HISTORY HAS SPECIAL SIGNIFICANCE IN
CERTAIN TYPES OF CANCER. E.g., colorectal cancer is a common cancer in
USA with 134,490 estimated new cases and 49,190 estimated deaths in 2016.
Though routine screening colonoscopy for colon cancer starts at age 50, in case of
positive family history, screening should begin 10 years earlier than the age at which
the family member developed their cancer or age 40, whichever is earlier.

• Angelina Jolie underwent preventive double mastectomy and bilateral salpingo-

oophorectomy after her blood test revealed a mutation in the BRCA1 gene. It gave
her an estimated 87% risk of breast cancer and 50% risk of ovarian cancer. She had
lost her mother, grandmother and aunt to cancer. Her strong family history and
BRCA1 gene made preventive surgery the best option for her. Knowing the identity
of the gamete donor can become very important from a medical standpoint in such
 BALANCING INTERESTS OF
PARENTS,DONORS AND DC CHILDREN

INTERESTS OF PARENTS INTERESTS OF DC

AND DONORS CHILDREN
• POSITIVE RIGHT TO
• NEGATIVE RIGHT TO
PRIVACY To get the
PRIVACY information
• To control the information
• TO AVOID SHAME • LARGER PUBLIC INTEREST
Of infertility In morality in avoiding
• THE FEAR -that child would consanguinous
distance from them marriages/incests
• CONTRACTUAL
• MEDICAL CONCERNS -in
PROTECTION OF PRIVACY
avoiding genetic diseases.
OF DONORS-
• To avoid interference in their • SOCIETY CANNOT AFFORD
lives children having
• To avoid claims of psychological problems
inheritance and maintenance
JUDICIAL PRECEDENTS GIVING RIGHT TO
KNOW TO DONOR CONCEIVED CHILDREN
• Gaskin v United Kingdom (1989) 12 EHRR 36 is the root authority in which the ECtHR
interpreted the respect for private and family life to incorporate the concept of personal
identity. Gaskin spent most of life as a minor in care who boarded out with various foster
parents. The local authority was under a duty to keep the record of the foster care confidential
record. The applicant claimed he was ill treated in care and since his majority had tried to
obtain details of where he was kept, by whom and in what conditions in order to help him to
overcome his problems and learn about his past. The Liverpool City Council showed their
inability to disclose all information to the applicant. The applicant applied to the Commission
claiming that the refusal of access to all his case records was in breach of his right to respect
for his private and family life under Art. 8 and right to receive information under Art. 10 of the
Convention. The court found a breach of Article 8 saying that: “… persons in the situation of
the applicant have a vital interest, protected by the Convention, in receiving the information
necessary to know and understand their childhood and early development …”

•
 JUDICIAL PRECEDENTS GIVING RIGHT
TO KNOW TO DC CHILDREN
• In Mikulic v Croatia, 2002-I Eur. Ct. H.R.
• The applicant who was a child born out of wedlock filed a civil suit in the
Zagreb Municipal Court to establish paternity. She complained that her
right to respect for her private and family life had been violated because
the domestic courts had been inefficient in deciding her paternity claim
and had therefore left her uncertain as to her personal identity. The court
held that respect for private life requires that everyone should be able to
establish details of their identity as individual human beings and that an
individual's entitlement to such information is of importance because of its
formative implications for his or her personality.
•
•
 JUDICIAL PRECEDENTS GIVING RIGHT
TO KNOW TO DC CHILDREN
• Rose And Another v Secretary Of State For Health,
Human Fertilisation And Embryology Authority
[2002] EWHC 1593 (ADMIN) 2002 WL 1446174
• Rose was born as a result of donor insemination. Ms. Rose made
persistent and determined efforts to obtain non-identifying
information about the donor. This yielded nothing and records that
there were had been destroyed.
• She argued that respect for private and family life requires that
everyone should be able to establish details of their identity as
individual human beings.
• The court held that respect for private and family life requires that
everyone should be able to establish details of their identity as
individual being. This includes their origins and opportunity to
understand them. It also embraces their physical and social identity
and psychological integrity.
 JUDICIAL PRECEDENTS GIVING RIGHT
TO KNOW TO DC CHILDREN
Jäggi v Switzerland 47 Eur. Ct. H.R. 30 (2006) The applicant in this case was an adult
male who was a donor offspring seeking to establish the identity of his biological
father, who had died almost three decades earlier. In order to establish this, it was
necessary to exhume the body so that DNA samples could be taken from the corpse; a
request refused by the Swiss authorities. The competing interests included the
applicant’s right to establish his genetic parentage on the one hand and ‘the right of
third parties to the inviolability of the deceased’s body, the right to respect for the
dead, and the public interests in preserving legal certainty’ on the other. The Court
found that, the right to know one’s parentage was an integral part of the notion of
private life and that persons seeking to establish their parentage have a vital interest
protected by the Convention. Thus the court acknowledged the right to an identity.
•
 RIGHT TO KNOW GENETIC ORIGINS
Indian jurisprudence
• Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469.
The Supreme Court of India in formulated guidelines for inter
country adoption wherein it held that a child-study report shall
be prepared to assist with the child's need to know about his
original family at the appropriate time.
• In ABC v State (NCT of Delhi), the Supreme Court of India
held that we need to ensure the child’s right to know the identity
of his parents is not vitiated, undermined, compromised or
jeopardised.
• The Guidelines Governing The Adoption Of Children 2011
provide that the associated agencies should facilitate root
search by the adoptive child.
 RIGHT TO KNOW GENETIC ORIGINS
Indian jurisprudence
• Rohit Shekhar v. Narayan Dutt Tiwari & Anr. 2010 DGLS AHC 11194
• The plaintiff claimed a decree for declaration that the defendant is his biological
father. He applied to the court to get the blood samples from the defendant for DNA
testing which the defendant opposed.
• The court held that the right of the child to know of her biological antecedents is
now recognised internationally as being of critical importance. It further held that
the courts cannot disregard the interest of child to know the biological roots. 1)
The identity of a child is preserved as envisaged in Art. 8 and 9 of the United
Nations Convention which enables the child to understand the social legacy;
traditional, cultural and ideological heritage; the circumstances of the child’s birth
and the identity of the father. 2) The child’s interest in learning medical histories
and information of his/her biological parents which would enable the child to be
aware of genetic predispositions to certain illnesses; anticipate disease; facilitate
accurate diagnosis and efficient treatment. It may allow a child to take preventive
medical measures or undertake lifestyle adaptations to prevent disease, if possible
or cope with them. In the medical sense, such information would thus enable
prevention of any hereditary disease.3) Knowledge of biological origins would
enable prevention of incestuous relationships.