Dr.
Ram Manohar Lohiya National Law University,
Lucknow
ACADEMIC SESSION: 2018-19
Human Rights
Surrogacy Laws in India
SUBMITTED TO: SUBMITTED BY:
Dr. Aparna Singh Akanksha Singh
Assistant Professor (Dep of Law) B.A. LLB (Hons)
VII Semester
Enrolment Number - 150101010
Contents
Introduction .................................................................................................................................................. 3
Surrogate....................................................................................................................................................... 3
Evolution of Surrogacy in India ..................................................................................................................... 4
ICMR Guidelines ........................................................................................................................................ 4
Baby Manji Case ........................................................................................................................................ 5
ART (Regulation) Bill, 2008........................................................................................................................ 5
The surrogate mother ........................................................................................................................... 6
The intended couple or individual ........................................................................................................ 6
The Child ............................................................................................................................................... 6
Contractual Agreement......................................................................................................................... 7
Opinions ................................................................................................................................................ 7
228th Report of Law Commission of India ................................................................................................. 7
Recommendations ................................................................................................................................ 7
Assisted Reproductive Technology (Regulation) Bill, 2010....................................................................... 8
Ministry of Home Affairs Guidelines, 2012 ............................................................................................... 8
Assisted Reproductive Technology (Regulation) Bill, 2014....................................................................... 9
Surrogacy Regulation Bill, 2016 .................................................................................................................... 9
Issues related to the Bill .......................................................................................................................... 10
Conclusion ................................................................................................................................................... 12
Introduction
India has been a favorite destination for surrogacy globally. Couples, single people, homosexuals from all
over the world would come to India to utilize India’s relatively cheap but efficient Assisted Reproductive
Technology (ART) services. However, with the new Surrogacy (Regulation) Bill, 2016 banning
commercial surrogacy and disallowing foreigners and even single people from being able to become
commissioning parents, the scope of surrogacy in India will be severely restricted. The Bill, although not
passed by the Parliament yet, has been approved by the Cabinet and is well on its way to becoming a law.
This bill, for the first time, seeks to give a legislative backing to the field of surrogacy. Prior to this, there
were only the ICMR guidelines which dealt with the issue. However, these were mere guidelines and
thus, a law to regulate this field was needed.
Surrogacy is an arrangement wherein a woman carries and delivers a pregnancy for another couple. This
woman, known as the surrogate, may be the child’s genetic mother (traditional surrogacy) or she may be
genetically unrelated to the child (gestational surrogacy). The surrogate waives all her parental rights over
the child and agrees to give the baby to the Intended Parents immediately after delivery. In case the
surrogate is given money or compensated for the procedure, it is known as commercial surrogacy, while if
no party benefits financially, it is an altruistic surrogacy.
Surrogate
Rights
1. Right to an informed consent
2. Right to receive expenses of pregnancy and hospital treatments
3. Right to receive reasonable insurance expenses
4. Right to remain anonymous
Duties
1. Duty to Disclose Details About the Family, Marital Status and Number of Children
2. Duty to Disclose Hereditary or Any Other Communicable Diseases
3. Duty to Permit Medical Examination
4. Duty to Undergo Regular Medical Checkups During Pregnancy
5. Duty to Take Adequate Health Care During Pregnancy
6. Duty to Avoid those Practices which Adversely Affect the Normal Development of the Child
7. Duty to Carry the Child for a Full Term
8. Duty to Relinquish the Right over the Child and to Hand over the Child
Surrogate Child Rights
1. Right to know his origin
2. Right to maintenance
3. Right to inheritance
4. Right to Preserve Identity and Right Not to be Separated from Parents
5. Right to Citizenship
Evolution of Surrogacy in India
The roots of Indian surrogacy go back to 1994. Since then, the field of Assisted Reproductive Technology
has been growing at a very rapid pace. In spite of this field being relatively old, there are barely any laws
to regulate it.
ICMR Guidelines
The first time surrogacy, in particular commercial surrogacy, gained recognition in India was in 2002,
when the Indian Council of Medical Research (ICMR) developed draft National Guidelines for
Accreditation, Supervision & Regulation of ART Clinics in India in 2002.1 After gaining suggestions and
comments from various stakeholders, the guidelines were finalized and published in 2005. It must be kept
in mind though that these guidelines did not have any statutory binding force.
The most important thing these guidelines did was legalize commercial surrogacy. They specify that the
payments made to the surrogate must cover all genuine expenses associated with the pregnancy. The ART
clinics must not be involved in any way in the monetary aspect. They also specify that documentary
evidence for the same must be present. They state that only the semen banks or the law firms associated
with the banks have the responsibility of maintaining information on possible surrogate mothers. These
organizations find the intending couple a suitable surrogate and charge the couple with a fee for providing
the surrogate. After this all financial negotiations are to be done between the couple and the surrogate.2
The guidelines provide 45 as the age limit for a woman to become a surrogate. They, however, don’t
mention any minimum age for a woman to become a surrogate. As per these guidelines a relative, a
known person as well as a person unknown to the couple can act as a surrogate. However in case the
surrogate is a relative then she must be of the same generation as the woman desiring the surrogate. It
further mandates that, a surrogate mother must register as a patient and as a surrogate in her own name
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, in order to avoid any
1
([Link],2018)<[Link]
[Link]> accessed 24 October 2018.
2
(2018) <[Link] accessed 24 October 2018.
legal issues, particularly in the untoward event of maternal death. There must be informed consent by the
surrogate and it must be witnessed by one who is not associated with the clinic.3
For the couple, the guidelines state that only those patients for whom it would be medically or physically
impossible/ undesirable to carry a baby to term can opt for surrogacy. Infertility has been defined in the
guidelines as failure to conceive after at least one year of unprotected coitus.4 For single parents, he or she
should be a donor to be able to have a surrogate child.
As for the child, the guidelines make it clear that the intended parents will be the legal parents of the
child. Even though the guidelines don’t have a clear provision for a case wherein the intended parents
abandon the child, the norm is that they will be held accountable on the basis of the surrogacy contract
which holds them as the legal parent of the child. Neither the surrogate nor the clinic will be responsible
for the child.5 The guidelines also try to protect the interests of the child and thus prohibit sex selection at
any stage after fertilization, or abortion of fetus of any particular sex, except to avoid the risk of
transmission of a genetic abnormality assessed through genetic testing of biological parents or through
pre-implantation genetic diagnosis. The birth certificate of the child will carry the names of the genetic
parents. This poses a problem for the intended couple if they haven’t made a genetic contribution to the
child. This is also an inherent contradiction since the guidelines mention the intended couple to be the
legal parents of the child and yet mandate the birth certificate to carry the names of the genetic parents.
The guidelines are also silent about the liability in case of any harm to the surrogate as a result of the
pregnancy. They also don’t have any provision on the previous pregnancies of the surrogate which can
have a major impact on her reproductive health.
Baby Manji Case
Thus, the guidelines were a step in the right direction but had certain flaws which needed to be removed.
The loopholes in the guidelines were highlighted in a famous case which proved to be a turning point for
the surrogacy laws in India. This was Baby Manji Yamada v Union of India6, also known as the Baby
Manji case. In this case, a Japanese couple had come to India and sought an Indian surrogate to become
parents. However, during the time of the pregnancy, the Japanese couple divorced and the intended
mother did not want the child anymore. The father wanted to keep the baby but the Indian laws did not
have any provision to solely allow the father to take the child. Their contract also did not take such a
situation into account. After a long drawn out legal battle, Manji’s birth certificate was drafted with only
the father’s name and the Supreme Court allowed the baby to leave the country with the child’s paternal
grandmother.
ART (Regulation) Bill, 2008
Citing this case, India’s then health minister called for a national surrogacy law. A week later, the ICMR
presented a draft bill, the ART (Regulation) Bill, 2008. It follows, and draws from, the functional and
ethical guidelines for assisted reproductive technologies issued by the Indian Council for Medical
3
([Link], 2018) <[Link]
[Link]?sequence=4> accessed 24 October 2018.
4
Ibid.
5
Ibid at 1.
6
(2008) 13 SCC 518.
Research in 2005. The bill seeks to regulate the practice of surrogacy to some extent. It purports to
regulate surrogacy and respond to social and ethical issues around parenting associated with artificial
reproductive techniques.7
The surrogate mother
This bill bars traditional surrogacy or the surrogate mother being genetically related to the child. Thus,
this means that an infertile couple will have to look for an egg donor in addition to the surrogate mother
for the surrogacy arrangement. It legalizes commercial surrogacy, thus the surrogate mother may receive
compensation from the couple or the individual for agreeing to act as a surrogate.
It also provides a minimum age of 21 years for the surrogate mother while keeping the upper limit as 45
years. It also puts a cap of three successful live births in a surrogate’s life. The surrogate is also not
allowed to undergo more than three embryo transfers for one couple. The surrogate mother must
relinquish all parental rights over the child. In case the surrogate is married, spousal consent for the
surrogacy is required.
The Agreement for Surrogacy in the Bill also makes it clear that the right to terminate the pregnancy rests
with the surrogate. In case the termination is done on the advice of a medical expert then the surrogate
need not refund the expenses incurred by the parents or their representatives. However if the termination
is done because of the surrogate’s free will, then the expenses will have to be refunded.
The intended couple or individual
The bill expressly states that the couple will bear all the expenses related to the pregnancy including
insurance related expenses of the surrogate during and after delivery as per medical advice.
“All expenses, including those related to insurance, of the surrogate related to a pregnancy achieved in
furtherance of assisted reproductive technology shall, during the period of pregnancy and after delivery
as per medical advice, and till the child is ready to be delivered as per medical advice, to the biological
parent or parents, shall be borne by the couple or individual seeking surrogacy.”
The person/persons seeking surrogacy have a legal obligation under the Act to take custody of the
child/children irrespective of any abnormality that the child/children may have and a refusal to do so will
amount to an offence under the Act. In case the intended couple or individual is a foreigner then he/she
has to appoint a local guardian who will be legally responsible for taking care of the surrogate during and
after the pregnancy.
The couple or individual will not have the service of more than one surrogate at a given time and will
also not have a simultaneous transfer of embryos in the woman and in a surrogate.
The Child
The bill recognizes married, unmarried, single people as well as divorced or separated couples as the
intended parents of the child. The birth certificate will however, have the names of the genetic parents of
the child. The Bill provides for the right to information about his/her genetic parents and surrogate mother
upon reaching majority. Prior to the child becoming a major, personal information about the surrogate
7
Ibid at 1.
mother or the genetic parents may be released only in cases of life threatening diseases, with the informed
consent of the genetic parents or the surrogate mother.
Contractual Agreement
By making it mandatory to enter into a written contract, the drafters have brought the surrogacy
arrangements under the ambit of Indian Contract Act, 1872. Hence any kind of breach of surrogacy
contract could be redressed under the provisions of the Indian Contract Act, 1872.8
The Contract between the patient (the intending couple or individual) and the surrogate expressly consists
of a provision of payment to be made by the patient to the surrogate. This payment, as per the contract, is
to be made in three installments. The final installment is to be paid at the time of handing over the child to
the patient in the presence of two witnesses.
Opinions
Although the bill has been appreciated as legal regulation of this field was required, it has been criticized
by experts on grounds of promoting the interests of the providers of Assisted Reproductive Technologies
rather than regulating their practices. It has been labeled as inadequate in protecting the interests of the
surrogates, the egg donors as well as the children born out of these procedures. It also seems to actively
promote medical tourism in India for reproductive purposes.
228th Report of Law Commission of India
On 5th of August, 2009 the Law Commission of India submitted the 228th Law Commission Report titled
“Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and
Obligations of parties to a Surrogacy” to the Union Minister of Law and Justice, Ministry of Law and
Justice, Government of India. The report expressed the view of the Law Commission on the Indian
Counsel for Medical Research Guidelines 2005 on Surrogacy, the draft Assisted Reproductive
Technology (Regulation) Bill and Rules 2008 and the Seminar on “Surrogacy – Bane or Boon”.9
Recommendations
One of the major recommendations that the Law Commission makes with regard to the practice of
Surrogacy in India is to do away with Commercial Surrogacy altogether and to only allow Altruistic
Surrogacy. However, it states that reimbursement of all reasonable expenses for carrying the child may be
allowed but this must not be done for commercial purposes. It also recommends that the surrogacy
contract must provide for life insurance cover for the surrogate. It also stipulates that all surrogacy
contracts must be governed by the Indian Contract Act, 1872.
Another important recommendation that it made was for surrogacy contracts to include a provision for
financial support to the child in case of death of commissioning parents or their subsequent unwillingness
to adopt the child. It also provides for at least one of the intended parents to be a donor as well to
strengthen the love and bond between the parent and the child. It stipulates that legislation should provide
8
Ibid at 1.
9
Indian Surrogacy Law Centre Review of 228th Report By Law Commission Of India' (Web-Blog of Indian Surrogacy
Law Centre, 2018) <[Link]
commission-india/> accessed 24 October 2018.
for the intended parents to be the legitimate parents of the child automatically without any requirement for
adoption of the child and the birth certificate to carry the names of the commissioning parents instead of
the genetic parents. Cases of abortion will be governed by the Medical Termination of Pregnancy Act,
1971 only.
It also recommends the need for a separate redressal mechanism, Surrogacy courts, for conflicts related
to surrogacy.
Assisted Reproductive Technology (Regulation) Bill, 2010
The 2010 bill was brought out in an attempt to fix the loopholes and problems of the 2008 bill. This bill
rejected the Law Commission’s recommendation to ban commercial surrogacy and only allow altruistic
surrogacy.
The Bill makes quite a few changes to the provisions related to the surrogate mother. It disallows ART
clinics to send or receive Indian surrogate mothers abroad. It also makes it mandatory for the surrogate
mother to be an Indian citizen. It reduces the maximum age limit of surrogate mothers to 35 years as
opposed to the previous 45 years. It provides for a maximum number of embryo transfers per couple to be
three but does not put a cap on the maximum number of couples which could pose a danger to the
surrogate. It also increases the permitted maximum live births of a surrogate from three to five, including
her own children.
For the commissioning parents, the bill makes one major change, i.e., in its definition of a couple. It
defines a couple as “two persons living together and having a sexual relationship that is legal in India”10.
This narrows the scope of intended parents since it excludes gay couples. The Bill also adds that in case
of foreign couples seeking to use India’s surrogacy services, the couple needs to provide a certificate
stating that their country allows surrogacy. They also need to appoint a local guardian for the child and
this guardian will take over as the commissioning parent in case they are unable or unwilling to take
delivery of the child.
Another important change is that the birth certificate of the child will now carry the names of the
commissioning parents only.
Although the Bill makes important changes, it has been criticized on the ground of narrowing the rights of
the surrogate mother.
Ministry of Home Affairs Guidelines, 2012
The Ministry of Home Affairs provided for a few guidelines in relation to foreign couples seeking
surrogacy services in India. These, due to the absence of any other law currently, are followed as of now.
They provided that no foreign couple will come to India for surrogacy treatment on a tourist visa. They
must necessarily get a medical visa and this visa will only be provided to “a foreign man and woman”
who have been duly married for at least 2 years. Thus it eliminates foreign singles, homosexuals and
unmarried couples as potential surrogate parents.
10
Assisted Reproductive Technology (Regulation) Bill, 2010, s 2(h)
They also require the couple to present a letter from the Embassy of the foreign country in India or the
Foreign Minister of the country to be enclosed with the visa application clearly stating that the country
recognizes surrogacy and that the child/ children to be born to the commissioning couple through the
Indian surrogate mother will be permitted entry to their country as a biological child/children of the
couple commissioning surrogacy. The guidelines also stipulate the before granting exit to the child/
children, the Foreigners Regional Registration Officer (FRRO)/ Foreigners Registration Officer (FRO)
will ensure that the foreign couple is carrying a certificate from the ART clinic concerned regarding the
fact that the child/ children have been duly taken custody of by the foreigner and that the liabilities
towards the Indian surrogate mother have been fully discharged as per the agreement.11 A copy of the
birth certificate(s) of the surrogate child/children will be retained by the FRRO/FRO along with
photocopies of the passport and surrogacy visa of the foreign parents.
Assisted Reproductive Technology (Regulation) Bill, 2014
This bill categorically bars foreigners, single people, homosexuals and unmarried couples from becoming
commissioning parents. Only OCIs, PIOs, NRIs and foreigners married to Indians will be allowed to
become commissioning parents provided they have been married for a minimum number of two years.
This was done primarily to curb the commercialization of surrogacy. They also have to produce an
undertaking that says they will take care of the child or children born through surrogacy.
As for the surrogates, the bill increases the minimum age to 23 years who has to be married and having
one live child of at least three years of her own at the time of entering into an agreement to become a
surrogate. The National women’s Commission recommended that single woman, irrespective of their
marital status must be allow to be surrogate mothers. If only married woman can be surrogate mothers, it
would restrict the reproductive autonomy of a woman is the reasoning.12
The new draft proposes for proper regulation and supervision of assisted reproductive technology clinics
and banks in the country to prevent misuse of this technology and for safe and ethical practice of these
services. For effective implementation of the provisions the draft bill paves the way for setting up of
national and state boards for assisted reproductive technology and makes registration of assisted
reproductive clinics mandatory. To give tooth to the enforcing agencies the draft bill makes provisions for
imprisonment of up to five years or a fine of Rs 10 lakh or both for violators. Not only this, but
safeguarding the surrogates the act also provides for compensation to the surrogate mothers in case of any
kind of failure on the part of the commissioning parents. The present draft bill also imposes stricter
responsibility on the assisted reproductive technology clinics by presuming negligence on their part in
case of death or disability of the surrogates unless proved otherwise.13
Surrogacy Regulation Bill, 2016
The most important change this bill brings is the complete ban on commercial surrogacy in any form. It
only allows altruistic surrogacy. It also narrows the scope of commissioning couples to those who have
been married for at least 5 years and at least one of them has been proven to have fertility related issues.
11
([Link], 2018) <[Link] accessed 24
October 2018.
12
ibid
13
Ibid at 1.
Thus, single, unmarried couples and homosexuals cannot utilize surrogacy services in India. The
intending couple also needs to produce a certificate of essentiality which will be provided upon a
certificate of proven infertility of one or both members of the intending couple from a District Medical
Board; an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
insurance coverage for the surrogate mother. They also need a certificate of eligibility which will be
provided upon fulfillment of the following conditions by the intending couple: Indian citizens and are
married for at least five years; between 23 to 50 years old female and 26 to 55 years old male; they do
not have any surviving child (biological, adopted or surrogate); this would not include a child who is
mentally or physically challenged or suffers from life threatening disorder or fatal illness.
The Bill also provides for establishment of National and State level Surrogacy Boards. It provides for a
list of offences: undertaking or advertising commercial surrogacy; exploiting the surrogate mother;
abandoning, exploiting or disowning a surrogate child; and selling or importing human embryo or
gametes for surrogacy. These offences will attract a minimum penalty of 10 years and a fine up to 10 lakh
rupees.
As for the surrogate, the Bill states that only close relatives of the couple may act as a surrogate, thus
restricting the scope of surrogates. The surrogate needs to be between 25 and 35 years of age and can only
act as a surrogate once in her lifetime. She needs to seek a certificate of eligibility too. She must be a
married woman with a child of her own. On issues of abortion, the surrogate and the appropriate authority
have the rights to make a decision.
The bill requires the clinics to be duly registered and need to maintain the records of surrogacy for 25
years.
The surrogate child will have all the rights available to a biological child of the intending parents.
Issues related to the Bill
The Bill has generated a lot of controversy in the past few months, especially with the Cabinet giving its
nod to the Bill.
Constitutional Invalidity
The Bill violates the “Golden Triangle Test” put forward by the Supreme Court to test the validity of any
law. It must be in consonance with Articles 14, 19 and 21 to be valid. This Bill, it has been opined,
violates all three.
Article 14 is violated since the Bill bans single people, homosexuals and unmarried people from utilizing
surrogacy services. It violates Article 19 in general and Article 19(1)(g) in particular as it puts a blanket
ban on commercial surrogacy, violating the freedom of trade and profession for surrogate mothers.
Similarly the right to livelihood guaranteed under Article 21 of the Constitution is violated too.
Besides, the right to reproductive autonomy as laid down in B.K. Parthasarathi v Government of Andhra
Pradesh14 guaranteed by the Supreme Court means that the parents have the prerogative to choose the
mode of parenthood, either naturally or through surrogacy in this case. Normatively and constitutionally,
14
AIR 2000 AP 156
the method of procreation and parenthood lies outside the domain of the State, and any interference in this
choice will warrant an infringement of Article 21.
It also violates Article 51(c) which creates an obligation on our country to honor International
Conventions since it violates the “right to found a family” enshrined in Article 16 of the Universal
Declaration of Human Rights. An additional challenge to the Bill also arises from Article 16(1)(e) of
the Convention on the Elimination of All Forms of Discrimination against Women, which requires state
parties to ensure equality of rights for men and women “to decide freely and responsibly on the number
and spacing of their children.”15
The UN Special Rapporteur on the Right to Health has also highlighted the importance of freedoms and
entitlements pertaining to reproductive, maternal, and sexual right, including the right to family planning
services for the attainment of the highest possible standard of physical and mental health. The Bill further
violates the state’s core obligation to ensure equal treatment and non-discrimination in access to
reproductive health service by restricting the access to altruistic surrogacy.16
There are also concerns that banning commercial surrogacy will simply lead to an increase in the black
market for the same which will lead to a deterioration in the health and services provided to the surrogate.
Hence, the need of the hour is to regulate commercial surrogacy instead of putting a complete ban on it.
The Bill also fails to define the term ‘close relative’ of the intended couple. It also does not provide for
any time limit within which certificate of eligibility needs to be provided by the authority nor does it
mention any appeal procedure for the same.
15
The New Surrogacy Law In India Fails To Balance Regulation And Rights' (LSE Human Rights, 2018)
<[Link]
rights/> accessed 24 October 2018.
16
ibid
Conclusion
Banning commercial surrogacy, in the author’s opinion, is not the correct way forward in this field. As
this paper has analysed, the surrogate’s rights have been largely diluted as a result of this move and the
extremely restrictive definition of altruistic surrogacy, not to mention the violation of the fundamental
rights guaranteed by the Constitution. Instead of banning commercial surrogacy altogether and as a result
creating an unregulated black market for it, the government should legalize commercial surrogacy and
create laws to regulate this sector in order to protect the surrogate and the unborn child’s rights.
In addition to this, the author firmly believes that life-long insurance should be provided to the surrogate
instead of simply insuring her pregnancy. The current bill, although a definite step in the right direction in
that it seeks to form laws for a largely unchecked sector, fails to protect the surrogate mother or the child
in any real, effective way. This, above all, should be the highest priority of the government.
