Dr.

Ram Manohar lohiya National Law University,

Lucknow

Caste Certificate- A tool to enforce fundamental

and constitutional rights

Submitted to: -
Submitted By: -

Aparna Singh
Ankit Diwan

Faculty in Law Roll

Number 20,
 X Semester

ACKNOWLEDGEMENT

The present project work is the result of extensive research and honest

effort .I would like to thank my teacher Miss Aparna Singh for his guidance at

every step of the project work which proved to be very helpful in the

completion of this project .I am thankful to the library staff who helped me in

having an easy reach to the books and the research materials and without

whose cooperation the present would not have been in the present form.

Last but not the least I thank all those who helped me directly or indirectly in

the completion of this project. I all my friends who helped in preparing this

project work

An
kit Diwan

2
 TABLE OF CONTENTS

(1) INTRODUTION………………………………………………………………..5

(2) RIGHT TO REPRODUCTION- A CONSTITUTIONAL

RIGHT…………6

(3) SURROGACY IN THE ANCIENT

TIMES…………………………………..6

(4) SURROGACY DEFINED………………………………………………………

7

(5) TYPES OF SURROGACY………………………………………………………

8

(6) COMMERCIAL SURROGACY: A MILLION DOLLAR BUSINESS

IN INDIA……………………………………………………………………………
9

(7) CASE OF JAPANESE BABY YAMADA……………………………………

10

3
 (8) LEGAL POSITION OF COMMERCIAL SURROGACY IN SOME
COUNTRIES…………………………………………………………………..12

(9) COMMERCIAL SURROGACY ARRANGEMENTS: BUILDING A

REGULATORY FRAMEWORK IN
INDIA…………………………………14

(10)LAW COMMISSION REPORT………………………………………18

(11)ISSUES: RAISING A MORAL AND LEGAL DEBATE………….19

(12)CONCLUSION………………………………………………………21

BIBLIOGRAPHY………………………………………………………..22

ABSTRACT

The whole world may be facing tough times due to the economic
recession but there is one practice in India which is growing by leaps and
bounds i.e. ‘Surrogacy’. After the success of business process, knowledge
process and legal process outsourcing, the IVF (In-Vitro Fertilization)
genetic pool banks of India are the latest outsourcing Industry where
would be parents from all over the world come for treatment and also
hire the services of the surrogates. Commercial Surrogacy in India is
estimated to be a $500 million business with the country being the
foremost in the world for the practice. But there is no law to govern
surrogacy (except ICMR guidelines) and a plenty of moral, ethical and
legal debate is in progress. The recent case of Baby Manji Yamada has

4
opened a pandora’s box with a floodgate of questions and issues related
to ethics, morality and legality surrounding surrogacy. This paper is an
effort to assess all such issues and problems by analyzing surrogacy laws
of various countries including India. An effort has been done to raise as
many questions as possible related to the legality of this issue. In
conclusion it is hoped that the Indian parliament will soon pass a law on
this subject which will possibly cover all the related issues.

INTRODUTION

The whole world may be facing tough times due to the economic
recession but there is one practice in India which is growing by leaps and
bounds i.e. ‘Surrogacy’.1 India is a leading player in the outsourcing
industry and after the success of business process, knowledge process
and legal process outsourcing, the IVF (In-Vitro Fertilization) genetic pool
banks of India are the latest outsourcing Industry from India. Would be
1
http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20090078372 .
5
parents from all over the world are taking the services of the sperm
banks and IVF centres in India.

What is attracting both foreigners and Non-resident Indians (NRIs) to

sperm banks and surrogate mothers in India? The answer can be
summed up in following points:

1. Relatively low cost of medical services,

2. easy availability of surrogate wombs,
3. abundant choices of donors and
4. lack of any law to regulate these practices.

The World Health Organization (WHO) estimates that approximately 8-

10% of couples experience some form of infertility problem. On a
worldwide scale, this means that 50-80 million people suffer from
infertility. However, the incidence of infertility may vary from region to
region.2 With such a whooping number of infertility problems the number
of people who will turn to Surrogacy will amplify highly in number. And
India surely will be an abode for them all due to the above mentioned
reasons.

The couples/intending parents have an option of adopting children, but

adoption in India is a very difficult procedure and hence, a complicated
issue. It is over burdened with knotty legal processes and lengthy
procedures for those who want to give a new home and a new life to
reported 12 million Indian orphans. Even though the Indian Constitution
ordains it to be a sovereign, socialist, secular, democratic republic, 60
years of Independence have not given a comprehensive adoption law
applicable to all its citizens, irrespective of the religion they profess or
the country they live in.

Resultantly, those who cannot by law adopt and can be appointed only as
guardians under personal Indian laws, turn to options of IVF 3 clinics or
rent surrogate wombs. It is in this perspective that India now needs to
2
http://www.delhi-ivf.com/faq.html.
3
IVF means In-Vitro Fertilization; to know more please visit http://en.wikipedia.org/wiki/IVF .
6
adopt another law to turn to actual reality dreams of those who live
abroad rather than turning to unhappy and sometimes unethical
practices like surrogacy.
RIGHT TO REPRODUCTION- A CONSTITUTIONAL RIGHT

Article 16(1) of the Universal Declaration of Human Rights 1948 says,

that “men and women of full age without any limitation due to race,
nationality or religion have the right to marry and start a family”. The
Judiciary in India has recognized the reproductive right of humans as a
basic right. Vide B. K. Parthasarthi v. Government of Andhra Pradesh, the
Andhra Pradesh High Court upheld “the right of reproductive autonomy”
of an individual as an aspect of his “right to privacy” and agreed with the
decision of the US Supreme Court in Jack T. Skinner v. State of
Oklahoma, which characterised the right to reproduce as “one of the
basic civil rights of man”. In Javed v. State of Haryana, though the
Supreme Court upheld the two living children norm to debar a person
from contesting a Panchayati Raj election it abstain from stating that the
right to procreation is not a basic human right. Now, if reproductive right
gets constitutional umbrella, surrogacy which allows an infertile couple
to exercise that right also gets the same constitutional protection.

SURROGACY IN THE ANCIENT TIMES

Surrogacy has its roots in the ancient history. Throughout the history of
Mankind, many cultures around the world have regarded positively
carrying a baby for an infertile relation. For example in the Great Indian
epic Mahabharata, Karna was believed to be a surrogate child of Kunti.

Similarly, Yashoda played mother to Lord Krishna, though Devki and

Vasudev were biological parents. Gandhari made Dhritarashtra the proud
father of 100 children, though he had no biological relation with
them.4 So, we can say that Surrogacy was prevalent in the ancient times
also in different forms.

4
http://timesofindia.indiatimes.com/articleshow/3400842.cms.
7
We can find similar example in the ‘The Holy Bible’, Chapter 16 of
which relates to the story of Sarah‘s servant Hagar bearing a child
to Abraham for Sarah and Abraham to raise.

SURROGACY DEFINED

The literal meaning of ‘Surrogate’ is “One that takes the place of

another; a substitute.”5 And ‘Surrogacy’ is a method
of reproduction whereby a woman agrees to become pregnant and
deliver a child for a contracted party. She may be the child’s genetic
mother (the more traditional form of surrogacy), or she may, as
a gestational carrier, carry the child to delivery after having been
implanted with an embryo, in some jurisdictions an illegal medical
procedure.6

The woman who is pregnant with the child and intends to relinquish it
after birth is called surrogate mother. Some critics also define
Surrogates as “Baby Farms” or “Rented Wombs”.7

The Supreme Court of India in the case of Baby Manji Yamada v. Union of
India (UOI) and Anr.8 has explained the term Surrogacy in Para 5 of the
said judgement:

“5. Surrogacy is a well known method of reproduction whereby

a woman agrees to become pregnant for the purpose of gestating
and giving birth to a child she will not raise but hand over to a
contracted party. She may be the child’s genetic mother (the more
traditional form for surrogacy) or she may be, as a gestational

5
http://www.answers.com/topic/surrogate .
6
http://en.wikipedia.org/wiki/Surrogacy; Section 2(t) of the Draft Assisted Reproductive Technology
(Regulation) Act, 2008 defines this as follows “surrogacy”, means an arrangement in which a woman agrees to a
pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or
her husband, with the intention to carry it to term and hand over the child to the person or persons for whom she
is acting as a surrogate.
7
To know about the acronyms used in relation to Surrogacy please visit:
http://www.allaboutsurrogacy.com/acronyms.htm .
8
JT 2008 (11) SC 150; AIR 2009 SC 84.
8
 carrier, carry the pregnancy to delivery after having been
implanted with an embryo. In some cases surrogacy is the only
available option for parents who wish to have a child that is
biologically related to them.

The word “surrogate”, from Latin “subrogare”, means “appointed

to act in the place of”. The intended parent(s) is the individual or
couple who intends to rear the child after its birth.”

This is the first time that the Supreme Court has dealt with a matter on
the subject of Surrogacy and this case has opened way for a debate on
lots of related legal and moral issues. In a way, it has legalised surrogacy
in India.

TYPES OF SURROGACY

The Supreme Court in the case of ‘Baby Manji Yamada v. Union of India
(UOI) and Anr.’ explained the types of Surrogacy prevalent in the society.
The same have been reproduced hereunder:

“6. In “traditional surrogacy” (also known as the Straight

method) the surrogate is pregnant with her own biological child,
but this child was conceived with the intention of relinquishing the
child to be raised by others; by the biological father and possibly
his spouse or partner, either male or female. The child may be
conceived via home artificial insemination using fresh or frozen
sperm or impregnated via IUI (intrauterine insemination), or ICI
(inter-cervical insemination) which is performed at a fertility
clinic.”

Traditional surrogacy allows the intended father to donate his sperm,

which is inseminated in the uterus of the surrogate. This option allows

9
the intended father to be biologically related to the child, but the
intended mother is not biologically related to the child.

“7. In “gestational surrogacy” (also known as the Host

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

Gestational surrogacy allows both intended parents to be genetically

related to the child. Ovum and sperm from the couple are removed and
combined to create embryos in a lab. Then these embryos are transferred
into the uterus of the surrogate.

“8. “Altruistic surrogacy” is a situation where the surrogate

receives no financial reward for her pregnancy or the
relinquishment of her child (although usually all expenses related
to the pregnancy and birth are paid by the intended parents such
as medical expenses, maternity clothing and other related
expenses).”

In this kind of surrogacy money consideration is not involved. Most of the

times relatives or friends act as surrogates.

“9. “Commercial surrogacy” is a form of surrogacy in which a

gestational carrier is paid to carry a child to maturity in her womb
and is usually resorted to by well off infertile couples who can
afford the cost involved or people who save and borrow in order to
complete their dream of being parents. This medical procedure is
legal in several countries including in India where due to excellent
medical infrastructure, high international demand and ready
availability of poor surrogates it is reaching industry proportions.
Commercial surrogacy is sometimes refer to by the emotionally
10
 charged and potentially offensive terms “wombs for rent”,
“outsourced pregnancies” or “baby farms”.”

From a reading of the above, it seems apparent that “commercial

surrogacy” is a medical procedure which is considered to be legal in
India due to the factors mentioned in para 9 of the judgment above.
However, the fact remains that there is no statutory codified law
governing commercial surrogacy and other arrangements and it is a
growing practice in India. While no reliable numbers track such
pregnancies nationwide, doctors work with surrogates in virtually every
major city. The women are impregnated in-vitro with the egg and sperm
of couples unable to conceive on their own.

COMMERCIAL SURROGACY: A MILLION DOLLAR BUSINESS IN

INDIA

Surrogacy in India is estimated to be a $500 million business with the

country being the foremost in the world for the practice. 9 India is the
leader in making it a viable industry rather than a rare fertility
treatment. The reasons for the success of the surrogacy business in India
are the same as for outsourcing in other industries: a wide labour pool
working for relatively low rates. Some 75 per cent of the clients are NRIs
from Britain, America, Japan, and Southeast Asia. They come to India for
the same reason many corporations do - it’s cheaper.10

Clinically called “Assisted Reproductive Technology” (ART), it has been in

vogue in India since 1978 and today an estimated 200, 000 clinics across
the country offer artificial insemination, IVF and surrogacy
arrangements. The National Commission for Women says there are about
3,000 clinics offering surrogacy services in India.11

9
Siddharth Aneja, “Commercial Surrogacy Agreements:-Concept with special emphasis on the Draft Assisted
Reproductive Technologies (Regulation) bill of 2008” available at http://consumer.indlaw.com/search/articles/?
7128e327-651c-41c9-bf08-7ad9ab353b4c .
10
http://india.merinews.com/catFull.jsp?articleID=136421.
11
http://news.bbc.co.uk/2/hi/business/7935768.stm.
11
Surrogacy costs about $12,000 in India, including all medical expenses
and the surrogate’s fee. In the U.S., the same procedure can cost up to
$70,000.12 And in the UK the whole process would cost over 13,000
pounds.13 Thus India is turning out to be far more cost-effective for
surrogacy. The cost includes the medical procedures; payment to the
surrogate mother, which is often, but not always, done through the clinic;
plus air tickets and hotels for two trips to India (one for the fertilization
and a second to collect the baby). This comes out to be a very cheap deal
as compared to any of the western countries.
Anand in Western Gujarat is said to be the first place in India where a
surrogacy arrangement of any sort happened. The small town with a
population of around 1,50,000 is pioneer in surrogate motherhood.14

There have been reports from all over India about the increasing
surrogacy arrangements. The states of Madhya Pradesh and some other
neighbouring Northern states have reported an increase in the number of
IVF clinics offering surrogacy services.

CASE OF JAPANESE BABY YAMADA

A Japanese Ikufumi (45), an orthopaedic surgeon attached to a Tokyo

hospital and his former wife Yuki (41), signed an agreement of surrogacy
with Dr Nayanaben Patel of Akansha IVF Centre, an Ahmedabad hospital,
on November 22, 2007. Pritiben Mehta, wife of Brijeshbhai Mehta, also
from Ahmedabad, signed an agreement to serve as the surrogate mother.
The fertilization process of Yuki's eggs with Ikufumi's sperm was
completed in Tokyo and the embryo was brought to Ahmedabad.

After the embryo transfer was done, they left for Tokyo. The baby was
delivered on July 25, 2008. But by then, the Japanese couple had
divorced. And after the birth, surrogate mother Pritiben stuck to the

12
http://www.marieclaire.com/world-reports/news/international/surrogate-mothers-india.
13
http://news.bbc.co.uk/2/hi/business/7935768.stm.
14
http://news.bbc.co.uk/2/hi/south_asia/7661127.stm.
12
terms of the contract and left the baby and went home. On the other
hand, the mother disowned the infant upon its birth.

The matter was taken to the Supreme Court of India by an NGO called
Satya and the Honourable Supreme Court made certain observations on
Surrogacy.

The grandmother of the infant requested to the Apex Court for

permission for the infant to travel with her and for issuance of a passport
under consideration with the Central Government was directed to be
disposed off expeditiously. Following the directions of the Supreme Court
dated September 29, 2008, the Regional Passport Office in Jaipur issued
an “Identity Certificate” to the baby on November 1, 2008. Thereupon,
the grandmother Emiko Yamada flew out to Japan with the baby.

Other than defining surrogacy and mentioning different types of

surrogacy, the Supreme Court also made the following observations15:

“10. Intended parents may arrange a surrogate pregnancy

because a woman who intends to parent is infertile in such a way
that she cannot carry a pregnancy to term. Examples include a
woman who has had a hysterectomy, has a uterine malformation,
has had recurrent pregnancy loss or has a healthy condition that
makes it dangerous for her to be pregnant. A female intending
parent may also be fertile and healthy, but unwilling to undergo
pregnancy.

11. Alternatively, the intended parent may be a single male or a

male homosexual couple.

12. Surrogates may be relatives, friends, or previous strangers.

Many surrogate arrangements are made through agencies that
help match up intended parents with women who want to be
surrogates for a fee. The agencies often help manage the complex
medical and legal aspects involved. Surrogacy arrangements can

15
Baby Manji Yamada v. Union of India & Anr., JT 2008 (11) SC 150; AIR 2009 SC 84.
13
 also be made independently. In compensated surrogacies the
amount a surrogate receives varies widely from almost nothing
above expenses to over $ 30,000. Careful screening is needed to
assure their health as the gestational carrier incurs potential
obstetrical risks.”

What we infer from Para 11 is that even a single parent or a male

homosexual couple can arrange for surrogacy in India. Baby Manji’s case
presented an impasse with the judges asking “which law prohibits
surrogacy” and the NGO ‘Satya’ countering it with “which law permits
surrogacy”. The question still remains unresolved.

In a media report, Israeli gay couple Yonatan and Omer Gher became
parents in India on October 12, 2008, when their child was conceived
with the help of a Mumbai based surrogate mother in a fertility clinic in
Bandra.

Reportedly, Yonatan and Omer had been together for the past seven
years and had decided to start a family. But since Israel reportedly does
not allow same sex couples to adopt or have a surrogate child, India
became their choice to find a surrogate mother. Yonatan and Omer
reportedly first came to Mumbai in January 2008 for an IVF cycle when
Yonatan is stated to have donated his sperm. Thereafter, they selected an
anonymous “mother”. Accordingly, the child was conceived with the help
of a Mumbai based surrogate mother in a fertility clinic in Bandra. After
the child was born, the gay couple left for Israel with the child on
November 17, 2008.16

Even though homosexuality is an “Unnatural Offence” under Section 377

of the Indian Penal Code as Indian law criminalizes homosexuality, there
is no bar to gay couples hiring a surrogate mother to deliver children for
gay couples in India. Thus, there are reports in the media that there are

16
http://www.nytimes.com/2008/03/10/world/asia/10surrogate.html?pagewanted=2&_r=1;
http://www.dnaindia.com/report.asp?newsid=1207734; http://www.proudparenting.com/node/2264;
http://timesofindia.indiatimes.com/India/Israeli_gay_couple_gets_a_son/articleshow/3724754.cmss.
14
numerous gay couples coming to India to look for surrogate mothers as
India does not disallow such surrogacy arrangements.

LEGAL POSITION OF COMMERCIAL SURROGACY IN SOME

COUNTRIES

There is a lot of variation in the laws governing surrogacy in different

countries. The attitude of countries is not the same and in some cases the
states within countries’ have incongruent rules regarding surrogacy.
Given below is an account of situation of laws prevalent in some of the
countries:

Australia

In the year 1988, Australia witnessed a case related to surrogacy called

the Kirkman sisters case in the state of Victoria. It is popularly known as
‘My sister’s baby’ case. In this case, Linda Kirkman agreed to gestate
the genetic child of her older sister Maggie. The baby girl was handed
over to Maggie and her husband at birth. This had sparked much
community and legal debate and soon Australian states attempted to
settle the legal complications in surrogacy.

Each Australian state has addressed the surrogacy issue to varying

degrees.17 In many states arranging commercial surrogacy is a criminal
offence, although the Northern Territory has no legislation governing
surrogacy at all.18

Canada

Commercial surrogacy arrangements were prohibited in 2004 by

enacting the Assisted Human Reproduction Act. But altruistic surrogacy
still remains legal.19

UK

17
http://www.betterhealth.vic.gov.au/bhcv2/bhcarticles.nsf/pages/Surrogacy_the_issues?OpenDocument .
18
http://en.wikipedia.org/wiki/Surrogacy .
19
http://laws.justice.gc.ca/en/showdoc/cs/A-13.4///en?page=1 .
15
In UK, surrogacy arrangements, not agreements, are legal. But they must
be shorn of commercial element. However, agreements between a
surrogate mother and intended parents is not legally enforceable, which
means the agreeing parties must rely on each other’s promise to honour
the word.

The UK law does not recognize surrogate baby’s biological father. If a

British surrogate mother gives birth to a child for a foreign couple, then
she alone would be treated as the legal mother. If she is married, her
husband would be the legal father. A foreign couple, intending to take
legal parenthood of a surrogate baby, must necessarily be domiciled in
UK. If not, then they could take the complication fraught adoption route.
France

France’s highest court, the Court of Cassation outlawed surrogate

motherhood, stating that it violated a woman’s body and improperly
undermines the practice of adoption. The Supreme Court endorsed the
arguments of the nation’s solicitor general that “the human body is not
lent out, is not rented out, is not sold.” The court also found the practice
illegal because it was “a subversion of the institution of adoption.”
Hence, we can say that Surrogacy is illegal in France.20

USA

The laws governing surrogacy agreements vary from state to state. State
laws sometimes depend on the type of surrogacy agreement, such as
gestational or traditional surrogacy.21

20
http://www.nytimes.com/1991/06/02/world/french-supreme-court-rules-surrogate-mother-agreements-
illegal.html?sec=health.
21
For more information please visit: http://www.allaboutsurrogacy.com/surrogacylaws.htm.
16
The very famous ‘Baby M’22 decision spurred most US states to enact
legislation on surrogacy. By 1995, as many as 19 states had laws
designed to prevent or discourage surrogacy, 13 barred enforcement of
paid surrogacy contracts and 10 prohibited a third party, such as a
lawyer or physician, from collecting compensation for arranging
surrogacy agreements.23

COMMERCIAL SURROGACY ARRANGEMENTS: BUILDING A

REGULATORY FRAMEWORK IN INDIA

The application of the Indian Laws for the Intended Parents from abroad
is their most worrying element. The applicability of the Indian Laws is
the same irrespective of the nationality of the intended parents. Laws of
the respective countries play a role only at the stage when the intended
parents attempt to take the child to their nations. But in most cases, for
the purpose of determining of the nationality of child, Indian Laws are of
prime importance. The consulate of the country of Intended Parent has to
be consulted before arriving at a decision to take up the procedures in
India. For this purpose, effective communication and representation at
the Embassy gains prime importance.24

Guidelines for ART clinics in India25

22
‘Baby M’, 109 NJ 396, 537 A.2d 1227. The brief facts of the case are: In the US, the first formal agreement
between a couple and a surrogate mother was signed in 1976. Probably, it was voluntary. Soon, brokers entered
the scene and commercial exploitation followed. In 1984, a New Jersey couple - William Stern and Elizabeth
Stern - contracted to pay Mary Beth Whitehead $10,000 to bear a child using artificial insemination of William’s
sperm. The baby was born, but Whitehead decided to keep the child and refused the money. In 1987, New
Jersey Superior Court held the surrogate contract valid, tore the baby away from Whitehead and allowed the
Sterns to adopt it. Stripped of parental and visitation rights, Whitehead appealed in New Jersey Supreme Court,
which in 1988, except allowing the Sterns to keep the baby, reversed much of the decision. It termed surrogacy
contracts unenforceable, voided the adoption by Sterns and allowed parental and visitation rights to Whitehead.
23
Compensated surrogacy arrangements are illegal in Washington, Michigan, Utah, Arizona, New Mexico and
New York. Additionally, four states in the US have held that such contracts, while not illegal, are unenforceable.
California is widely recognized as one of the friendliest jurisdictions for parties desiring to enter into a
surrogacy arrangement.
24
http://blog.indiansurrogacylaw.com/2009/03/taking-the-surrogate-child-to-the-country-of-the-intended-
parents/ .
25
Guidelines for ART clinics in India, available at icmr.nic.in/art/art_clinics.htm.
17
In the absence of any law to govern surrogacy, the Indian Council of
Medical Research (ICMR) issued Guidelines in 2005 to check the
malpractices of Assisted Reproductive Technology (ART). These national
guidelines for Accreditation, Supervision and Regulation of ART Clinics in
India, 2005 are non statutory, have no legal sanctity and are not binding.
Silent on major issues, they lack teeth and are often violated.
Under guidelines issued by the Indian Council of Medical Research,
surrogate mothers sign away their rights to any children. A surrogate’s
name is not even on the birth certificate. This has triggered a moral
debate in the Indian ethical society.

The Draft Assisted Reproduction Technologies (Regulation) Bill,

2008 of India and Commercial Surrogacy Arrangements 26

The Assisted Reproductive Technology (Regulation) Bill & Rules – 2008, a

draft bill prepared by a 15 members committee including experts from
ICMR27, medical specialists and other experts from the Ministry of Health
and Family Welfare, Government of India has been posted online for
feedback. This 135 page document is stated to be an Act to provide for a
national frame work or the Regulation and Supervision of Assisted
Reproductive Technology and matter connected therewith or incidental
thereto as a unique proposed law to be put before the Indian Parliament.

The new Bill proposes to legalize commercial surrogacy and its salient
points are stated as hereunder:

 The surrogacy agreement shall be legally enforceable.

 The surrogate mother may receive monetary compensation for
carrying the child in addition to health-care and treatment expenses
during pregnancy.
 The surrogate mother will relinquish all parental rights over the child
once the amount is transferred and birth certificates will be in the
name of genetic parents
26
Available at www.icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&%20Rules%20 .
27
The Indian Council of Medical Research (ICMR), New Delhi, the apex body in India for the formulation,
coordination and promotion of biomedical research; to know more see http://icmr.nic.in/abouticmr.htm.
18
 The prescribed age-limit for a surrogate mother is between 21- 45
years. The proposed Bill also states that no surrogate mother can
undergo an embryo transfer more than three times.
 Single parents can also have children using a surrogate mother.
 All foreigners seeking infertility treatment in India will first have to
register with their embassy. Their notarized statement will then have
to be handed over to the treating doctor. The foreign couple will also
state whom the child should be entrusted to in case of an eventuality
such as a genetic parent’s death.
It may be relevant to state here that the above Bill is still being debated
and has not yet become law in India. Therefore, anything mentioned from
the Bill above is not conclusive and does not carry any force of law in
India till date.

The Law as Applicable in India as to the Legal Parentage of

Children Born in that Jurisdiction as a Result of a Surrogacy
Arrangement

In India at the moment, we do not have any legislation on legal parentage

as a result of surrogacy arrangements. The Registration of the Births
and Deaths Act, 1969 which came into force on 31 May, 1969 does not
contain any provision regarding parentage as a result of a surrogacy
arrangement. There have been no amendments or additions with regard
to any surrogacy issues in the said enactment pertaining to the
registration of births and deaths in the Indian jurisdiction.

The authorities are still taking the help of the non-binding and non-
statutory guidelines given by the Indian Council of Medical Research
(ICMR) 2005 to check the malpractices of Assisted Reproductive
Technology (ART). The same have been evaluated below for better
understanding of the regulatory system in India governing surrogacy
arrangements.

19
Para 3.5.428 of the said Guidelines provides that in cases where the
surrogate mother is biologically unrelated to the child, the birth
certificate shall have the name of the genetic parents. Therefore, if the
genetic parents are the Commissioning parents, who have contributed
their genetic material for the unborn child, they shall be automatically
recorded as the legal parents, if DNA tests prove the same. No adoption
procedure needs to be followed by the genetic parents under such
circumstances.

However, in terms of the above mentioned Guidelines, in cases where the

surrogate mother also donates her egg, the commissioning parents /
infertile couple will have to legally adopt the child, and it is only after
this legal procedure has been complied with, then the infertile couple
become the legal parents of the child born through such an arrangement.
This fact will also have to be recorded in the birth certificate issued to
such a child.

Furthermore, where the genetic material is supplied by third party

donors, in such cases the birth certificate issued to the child will initially
have the names of the genetic parents. Here, it would become
mandatory for the infertile couple to legally adopt the child so born,
before they can be referred to as the legal parents of such a child.

In order to avoid conflicts at a later stage, the said Guidelines

categorically state in Para 3.5.5 29 that once the child has been legally
adopted by the infertile couple, then the third party donor and the
28
Guidelines for ART clinics in India, available at icmr.nic.in/art/art_clinics.htm . “Para 3.5.4 - A surrogate
mother carrying a child biologically unrelated to her must register as a patient in her own name. While
registering she must mention that she is a surrogate mother and provide all the necessary information about the
genetic parents such as names, addresses, etc. She must not use/register in the name of the person for whom she
is carrying the child, as this would pose legal issues, particularly in the untoward event of maternal death (in
whose names will the hospital certify this death?). The birth certificate shall be in the name of the genetic
parents. The clinic, however, must also provide a certificate to the genetic parents giving the name and address
of the surrogate mother. All the expenses of the surrogate mother during the period of pregnancy and post-natal
care relating to pregnancy should be borne by the couple seeking surrogacy. The surrogate mother would also be
entitled to a monetary compensation from the couple for agreeing to act as a surrogate; the exact value of this
compensation should be decided by discussion between the couple and the proposed surrogate mother. An
oocyte donor can act as a surrogate mother.”
29
Guidelines for ART clinics in India, available at icmr.nic.in/art/art_clinics.htm . “Para 3.5.5 - A third-party
donor and a surrogate mother must relinquish in writing all parental rights concerning the offspring and vice
versa.”
20
surrogate mother shall relinquish all parental rights connected with the
child.

The children born out of surrogacy arrangements do not qualify for

citizenship by birth as prescribed in Section 3 of the Indian Citizenship
Act, 1955 (hereinafter referred to as 1955 Act), neither do they qualify
for citizenship by descent as prescribed in Section 4 of the 1955 Act.
Furthermore, they do not even qualify for citizenship by the registration
as prescribed in Section 5 of the 1955 Act. Lastly, they are also
disqualified for Indian citizenship by naturalization as prescribed in
Section 6 of the 1955 Act. So, there citizenship status is undecided.

Hence, the law relating to surrogacy in India is in its prenatal stage and
unfortunately at the moment there is no legislation in existence
prescribing a code of practice governing the moral, ethical and legal
aspects of such surrogate arrangements. Hence, the said Guidelines only
have persuasive value at this moment of time.

LAW COMMISSION REPORT

To legalize surrogacy, The Law Commission of India has submitted the
228th Report on
“Need for Legislation to Regulate Assisted Reproductive Technology
Clinics As well As Rights and Obligations of Parties to a Surrogacy.” The
following observations had been made by the
Law Commission: Surrogacy arrangement will continue to be governed
by contract amongst parties, which will contain all the terms requiring
consent of surrogate mother to bear child, agreement of her husband and
other family members for the same, medical procedures of artificial
21
insemination, reimbursement of all reasonable expenses for carrying
child to full term,
willingness to hand over the child born to the commissioning parent(s),
etc. However,
such an arrangement should not be for commercial purposes. A
surrogacy arrangement should provide for financial support for surrogate
child in the event of death of the commissioning couple or individual
before delivery of the child, or divorce between the intended parents and
subsequent willingness of none to take delivery of the child. A surrogacy
contract should necessarily take care of life insurance cover for
surrogate mother. One of the intended parents should be a donor as
well, because the bond of love and affection with a child primarily
emanates from biological relationship. Also, the chances of various kinds
of child-abuse, which have been noticed in cases of adoptions, will be
reduced. In case the intended parent is single, he or she should be a
donor to be able to have a surrogate child. Otherwise, adoption is the
way to have a child which is resorted to if biological (natural) parents
and adoptive parents are different. Legislation itself should recognize a
surrogate child to be the legitimate child of the commissioning parent(s)
without there being any need for adoption or even declaration of
guardian. The birth certificate of the surrogate child should contain the
name(s) of the
commissioning parent(s) only. Right to privacy of donor as well as
surrogate mother should be protected. Sex-selective surrogacy should be
prohibited. Cases of abortions should be governed by the Medical
Termination of Pregnancy Act 1971 only. The Report has come largely in
support of the Surrogacy in India, highlighting a proper way of operating
surrogacy in Indian conditions. Exploitation of the women through
surrogacy is another worrying factor which the law has to address. Also,
commercialization of surrogacy is something that has been issue in the
mind of the Law Commission. However, this is a great step forward to the
present situation.

22
ISSUES: RAISING A MORAL AND LEGAL DEBATE

Arguments for and against Surrogacy

There continues to be much controversy and debate surrounding

surrogacy. The argument in favour of surrogacy is based on the personal
autonomy of the intending parents commissioning a surrogate mother.
The view is that people should be free to make arrangements so long as
those arrangements do not bring harm to others. Some claim that the
surrogate child and mother can be adequately protected if strict
regulations and controls are established and enforced.
Arguments against surrogacy are mainly based on two issues: the best
interests of the child and the rights and feelings of the surrogate mother.

Questions which need to be answered

The legal, moral and ethical questions raised are numerous and include:
 The first question which needs to be addressed is that whether the
agreement entered into between the intended parents and the
surrogate is an enforceable contract? This question has been mooted
since last three four years, but there has been no proper answer to it.
 Is it legal in India to become surrogate mothers?
 Will the child born to an Indian surrogate mother be a citizen of this
country?
 Who arranges for the birth certificate and passport that will be
required by the foreign couple at the time of immigration?
 Ethically, should women be paid for being surrogates?
 Can the rights of women and children be bartered?
 If the arrangements fall foul, will it amount to adultery?

23
 What happens if the surrogate mother or commissioning couple
change their mind?

Other key issues

There are a number of other ongoing issues to consider. These include:

 The intending parents have no idea if the surrogate mother is
smoking, drinking alcohol, doing drugs. There is a third-party
surrogate mother agency as a mediator, but there’s no one monitoring
her in the sense that they don’t know what’s going on.
 Another major concern is the number of young girls opting for
surrogacy, which is also affecting the Maternal Mortality Rate (MMR).
So issues like minimum age limit and health conditions need to be
considered.

The critics say the couples are exploiting poor women in India a country
with an alarmingly high maternal death rate by hiring them at a cut-rate
cost to undergo the hardship, pain and risks of labour.

Questions raised in regard to the draft Bill

The questions which have not been given proper attention while
imposing the concerned Act are:

 If the child becomes paralytic or physically challenged and the foreign

parents avoid their responsibility who will take care of the child and
the mother?
 After reaching an agreement, if the childless parents die, what will
happen to the surrogate mother?
 Who will take the responsibility, if the foreign parents never come
back to get their child?
 Who stands guarantee for physical fitness of the unknown fathers
from whom the surrogate mothers can contact ailments?
 What about the insurance issues which arise out of the arrangements.
The draft bill does not mention insurance. There is a lot of risk
24
 involved in this process and insurance companies flatly refuse to pay
for infertility treatments. This insurance must be done so as to cover
the costs related to complications arising from the cycle medications
and / or retrieval procedure. It should cover both the ovum donor &
recipient.
 Is the new law a compromise in surpassing complicated Indian
adoption procedures?
 Is the new law compromising with reality in legitimizing existing
surrogacy rackets?
 What happens in the case of miscarriage or multiple births?
 Is there not a need for maintaining a national registry of ART clinics?
 Is Advertisement by clinics legal or illegal; moral or immoral?

These are some of the mind boggling questions which need to be looked
into as soon as possible.

CONCLUSION

To conclude we can say that the case of Baby Manji Yamada has opened a
pandora’s box with a floodgate of questions and issues related to ethics
and legality surrounding surrogacy. If commercial surrogacy keeps
growing, some fear it could change from a medical necessity for infertile
women to a convenience for the rich. Or competition among clinics could
lead to compromised safety measures. The industry is not regulated by
the government.30

A new trend shows that even in the time of recession, there are many
young and educated women who have turned to surrogacy as their side

30
http://economictimes.indiatimes.com/articleshow/2661740.cms?prtpage=1.
25
profession.31 An article published in The Times of India questioned how
such a law would be enforced: “In a country crippled by abject poverty,”
it asked, “how will the government body guarantee that women will not
agree to surrogacy just to be able to eat two square meals a day?”

The Indian legal system today only recognises the birth mother. There is
no concept of DNA testing for establishing paternity as far as the Indian
legal system goes, which means that the name on the child’s birth
certificate has to be that of the birth mother and her husband. Many
couples naively plan to adopt the child and then take it back with them.
What they fail to realise is that adoption in India is a long and an
intricate process which can only be performed by a recognized adoption
agency.

Hopefully, the Indian parliament will soon pass a law which regulates IVF
and related assisted reproductive technologies which may provide some
legal protection for infertile couples when they go in for surrogacy
treatment.

BIBILIOGRAPHY

http://economictimes.indiatimes.com/articleshow/2661740.cms?
prtpage=1.

31
http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20090078372 .
26
 http://www.ndtv.com/convergence/ndtv/story.aspx?
id=NEWEN20090078372

http://icmr.nic.in/abouticmr.htm

http://blog.indiansurrogacylaw.com/2009/03/taking-the-surrogate-child-
to-the-country-of-the-intended-parents/ .

icmr.nic.in/art/art_clinics.htm

www.icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&
%20Rules%20

http://www.nytimes.com/1991/06/02/world/french-supreme-court-rules-
surrogate-mother-agreements-illegal.html?sec=health

http://www.allaboutsurrogacy.com/surrogacylaws.htm

http://www.betterhealth.vic.gov.au/bhcv2/bhcarticles.nsf/pages/Surrogacy
_the_issues?OpenDocument last visited on 7 April, 2009.

http://en.wikipedia.org/wiki/Surrogacy last visited on 7 April, 2009.

http://laws.justice.gc.ca/en/showdoc/cs/A-13.4///en?page=1 last visited

on 7 April, 2009

http://www.nytimes.com/2008/03/10/world/asia/10surrogate.html?
pagewanted=2&_r=1; http://www.dnaindia.com/report.asp?
newsid=1207734; http://www.proudparenting.com/node/2264;
http://timesofindia.indiatimes.com/India/Israeli_gay_couple_gets_a_son/ar
ticleshow/3724754.cmss

http://consumer.indlaw.com/search/articles/?7128e327-651c-41c9-bf08-
7ad9ab353b4c .

http://india.merinews.com/catFull.jsp?articleID=136421.

27
 http://news.bbc.co.uk/2/hi/business/7935768.stm.

http://www.marieclaire.com/world-reports/news/international/surrogate-
mothers-india.

http://news.bbc.co.uk/2/hi/business/7935768.stm.

http://news.bbc.co.uk/2/hi/south_asia/7661127.stm

http://www.allaboutsurrogacy.com/acronyms.htm

http://en.wikipedia.org/wiki/IVF

http://timesofindia.indiatimes.com/articleshow/3400842.cms

http://www.answers.com/topic/surrogate

http://www.ndtv.com/convergence/ndtv/story.aspx?
id=NEWEN20090078372 .

http://www.delhi-ivf.com/faq.html.

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