RESEARCH METHODOLOGY

1. AREA: Surrogacy Law

2. TOPIC: Legal Status of the Surrogate Child
3. OBJECTIVES:
a. To determine the legal status of parenthood for a surrogate child.
b. To determine the status of the child in international instruments.
c. To determine the status of the Surrogate child in India.
d. To understand and improve the status of surrogate children in India.
4. RESEARCH QUESTIONS:
a. What is standard for determining legal parenthood, i.e., the maternity & paternity,
of a child born out of a surrogacy contract in different jurisdictions, viz., India,
United States of America and The United Kingdom?
b. Whether the international instruments, viz., United Nations Convention on Rights
of the Child spells out any status of the surrogate child?
c. Whether the standards for determining legal status of surrogate child in India are
correct?
d. If not correct, what is an alternative procedure for furthering the rights which
enhance the status of the surrogate child?
5. SOURCES: The author has used secondary sources in the paper, viz., Articles, Books,
Magazines, editorials and Newspapers.
6. CITATIONS: The author has used the uniform footnoting style followed at National Law
University, Jodhpur while writing this paper.
 2

TABLE OF CONTENTS

1. INTRODUCTION…………………………………………………………………….3
a. DEFINITIONAL UNDERPINNINGS………………………………………..3
b. IDENTIFYING THE PARTIES TO A SURROGACY AGREEMENT – THE
CHILD AS AN IMPORTANT ELEMENT…………………………………...5

2. DETERMINING THE LEGAL STATUS OF THE SURROGATE CHILD…….7

a. MATERNITY…………………………………………………………………7
b. PATERNITY…………………………………………………………………..9
c. POSITION IN INDIA………………………………………………………..10

3. INTERNATIONAL INSTRUMENTS FURTHERING THE STATUS OF THE

SURROGATE CHILD……………………………………………………………...12
4. AXIOMATIC RECOGNITION OF STATUS OF THE SURROGATE
CHILD……………………………………………………………………………….15
a. THE ‘DOCTRINE OF BETTER INTEREST’, HISTORICAL
DEVELOPMENT & MEANING……………………………………………15
b. DICHOTOMY WITH ARTICLE 21 OF THE CONSTITUTION OF INDIA –
HOW TO REALIZE THE STATUS OF THE CHILD……………………...17
c. LEGAL STATUS AVAILABLE TO SURROGATE CHILD………………19

5. CONCLUSION……………………………………………………………………...22
 3

INTRODUCTION

“The parents construct the child biologically, while the child constructs the parents socially”

This statement echoes the typical mindset of the people in a society, especially in India. The
228th Law Commission Report of August 2009 also recognises the same.1

Infertility is considered to be a major problem, as kinship and family ties are dependent on
progeny. Backed by the mythological sanction the concept of surrogacy is gaining popularity
world over.

1. DEFINITIONAL UNDERPINNINGS

In recent times, the advent of new scientific reproductive technologies has conjured up novel
and seemingly intractable normative debates about bioethics and contemporary values in the
field of family law. Infertility of couples strips them of their essential ‘right to procreate’ and
have genetically related offspring.2 A new promise has flowered for them with the advent of
new reproductive technologies like artificial insemination, donor egg transplantation, and
surrogacy. Surrogacy, incontrovertibly, is the most controversial of them all.

The literal meaning of ‘surrogate’ is ‘substitute’. Surrogacy arrangements are motivated by a

desire for a genetically related child and the disincentive arising out of the prolix adoption
procedures coupled with difficulty in finding suitable child for adoption. A standard
definition of ‘surrogacy’ is offered by the American Law Reports3 in the following manner:

“…a contractual undertaking whereby the natural or surrogate mother, for a

fee, agrees to conceive a child through artificial insemination with the sperm
of the natural father, to bear and deliver the child to the natural father, and to
terminate all of her parental rights subsequent to the child's birth.”

The word ‘surrogate’ has its origin in Latin ‘surrogatus’, past participle of ‘surrogare’,
meaning a substitute, that is, a person appointed to act in the place of another. Thus a

1 The entire text of the report is available at [Link] , last

visited on 12.03.2010
2 Raghav Sharma, An International, Legal & Moral Perspective: The Call for Legalization of Surrogacy in
India, available at [Link] last visited on 12.03.2010
3 American Law Reports, Validity and Construction of Surrogate Parenting Agreement, 77 A.L.R. 470 (1989).
 4

surrogate mother is a woman who bears a child on behalf of another woman, either from her
own egg or from the implantation in her womb of a fertilized egg from other woman.4

According to the Black’s Law Dictionary, surrogacy means the process of carrying and
delivering a child for another person.5 The New Encyclopaedia Britannica defines ‘surrogate
motherhood’ as the practice in which a woman bears a child for a couple unable to produce
children in the usual way.6

The Report of the Committee of Inquiry into Human Fertilization and Embryology, better
known as the ‘Warnock Report’ defines surrogacy as the practice whereby one woman carries
a child for another with the intention that the child should be handed over after birth.7

Another method of classifying surrogacy would be on the basis of intention. Black’s Law
Dictionary categorizes surrogacy into two classes: ‘gestational surrogacy’ and ‘traditional
surrogacy’. They are defined as follows:

Gestational surrogacy: A pregnancy in which one woman (the genetic mother)

provides the egg, which is fertilized, and another woman (the surrogate
mother) carries the foetus and gives birth to the child.

Traditional surrogacy: A pregnancy in which a woman provides her own egg,

which is fertilized by artificial insemination, and carries the fetus and gives
birth to a child for another person.

‘Gestational surrogacy’ is total in the sense that an embryo created by the process of IVF is
implanted into the surrogate mother. ‘Traditional surrogacy’ may be called partial or
genetically contracted motherhood because the surrogate mother is impregnated with the
sperm of the intended father making her both the genetic and the gestational mother; the child
shares make-up of the commissioning father and the surrogate mother.8

4 As taken from the Online Etymological Dictionary, available at [Link]

search=pregnant&searchmode=phrase, last visited on 12.03.2010
5 Black’s Law Dictionary, 7th ed., 1999
6 [Link] last visited on 12.03.2010
7 Dame Mar Warnock, Report of The Committee of Inquiry into Human Fertilisation and Embryology,
Department of Health and Social Security, available at
[Link]
Embryology_1984.pdf, last visited on 12.03.2010
8 Marilyn Strathern, Still Giving Nature a Helping Hand? Surrogacy: A Debate About Technology and Society,
Journal of Molecular Biology, Volume 319, Issue 4, 17th June 2002, 985-993
 5

2. IDENTIFYING THE PARTIES TO A SURROGACY AGREEMENT – THE CHILD AS AN

IMPORTANT ELEMENT

The definition of surrogacy, as noted above9 implicitly lays down the various parties involved
in a surrogacy agreement. The multitude of parties can be explained by the phrase given by
the Victorian Law Reform Commission:

“Typically, the parties to a surrogate parenting agreement are the surrogate,

the biological father, and (where appropriate) the surrogates husband. In an
effort to circumvent baby-selling statutes, the wife of the biological father is
generally not a party to the contract.10 The biological father and his wife will
generally be referred to herein as the adopting couple. 11 Under this form of
surrogate parenting agreement, the surrogate is both a genetic and
gestational surrogate. She is a genetic surrogate because it is her egg that is
fertilized and she therefore has a genetic link to the child. She is a gestational
surrogate because she carries the child to term.”12

A lot many more reports and articles can be referred to show that the parties to such an
agreement, which are legally recognized, are the commissioning parents & the surrogate
mother and in certain cases, her husband/significant other also.13 Furthermore, internationally,
there exist the same eligibility criteria to either be a commissioning parent or a surrogate,
viz., they should be a major, should be of sound mind, and for the surrogate, more
particularly, should not suffer from any genetic abnormality etc.14

9 Supra Note 3
10 Surrogate Parenting Associates, Inc. v. Commonwealth ex rel. Armstrong, 704 S.W.2d 209
11 Eva Steiner, The Tensions Between Legal, Biological and Social Conceptions of Parenthood in English Law,
Report to the XVIIth International Congress of Comparative Law, July 2006, available at
[Link] last visited on 12.03.2010
12 John Seymour & Sonia Magri, A.R.T., Surrogacy and Legal Parentage: A comparative Legislative Review,
Victorian Law Reform Commission, 2002, available at
[Link] last
visited on 12.03.2010
13 See Report on the Consultation on the Review of the Human Fertilization & Embryology Act 1990,
Department of Health, March 2006, available at
[Link] last visited on 12.03.2010
and also Outcomes of Children born out of A.R.T. in a Diverse Range of Families, Report tabled by the
Victorian Law Reform Commission, July 2007, available at
[Link]
ion/LAWREFORM+-+Outcomes+for+Children+born+of+ART+-+Occasional+Paper, last visited on
12.03.2010
14 Ibid
 6

However, an important element missing in all these surrogacy agreements/contracts, as they

are recognized in respective jurisdictions in the world, is that of the child. Infact, all sample
legal surrogacy agreements that the researcher came across, do not contain any element of
recognizing the rights of the child.15

This is exactly what the researcher proposes in the present paper. The researcher proposes
that the rights of the child born out of a surrogate agreement be recognized in a contract, and
furthermore, be buttressed by requirements in their respective statutes, which also endorses
the international instruments recognizing the rights of the child. All these aspects have been
explained in the further parts of this paper.

15 For sample surrogacy agreements, refer to [Link] ,

[Link]
[Link] &
[Link] last visited on 12.03.2010
 7

DETERMINING THE LEGAL STATUS OF THE SURROGATE CHILD

When a child is born out of a surrogacy agreement, who are the legal parents of the child?
The rules governing the attribution of mother and fatherhood are different and dealt in the
following pages.

1. MATERNITY

In UK Law there are 3 ways in which a child’s mother can be identified. First, the legal
mother could be the woman who gestates the pregnancy and gives birth, this of course would
be the surrogate mother. Secondly, legal motherhood could be anonymous with genetic
motherhood, so that the woman whose egg was fertilized would be the resulting child’s
mother. In full surrogacy, this would be the commissioning mother, and in partial surrogacy,
the surrogate mother. Thirdly, legal motherhood could vest in the woman who intends to raise
the child, that is the commissioning mother. Section 27(1) 16 of the Human Fertilisation and
Embryology Act, 1990 makes it unequivocal that the woman who gives birth is the legal
mother.

The principle merit of the British Approach is that it unambigously identifies the child’s legal
mother. A genetic test would also promote certainty, although it would lead to certain
different results with respect to the arrangement between the parties. In partial surrogacy, a
genetic test would vest motherhood in the surrogate mother, while in a full surrogacy
arrangement, the commissioning mother would be the child’s legal mother from birth.

A test based solely upon intention would obviously lead to dispute and might result in
prolonged uncertainty about the child’s parentage. It would, however, have certain
advantages. If the commissioning couple decide that they do not want the child, perhaps
because the child is born with certain disabilities, a test solely based upon intention would
hold the commissioning couple to the agreement. The British approach instead puts the
surrogate mother in the difficult position of having prima facie legal responsibility for a child
that she never wanted, and leaves the commissioning couple with no legal responsibility for a
child whose creation they brought about.

In the United States of America, when the surrogate mother is not genetically related to the
child, courts find that the intended parents are the legal parents of the child and that the

16 Section 27(1): The woman who is carrying or has carried a child as a result of the placing in her of an
embryo of sperm and eggs, and no ther woman, is to be treated as the mother of the child.
 8

surrogate mother has no rights to the child.17 In Johnson v. Calvert, the intended parents
created an embryo from the intended mother's egg and the intended father's sperm. 18 Since the
child was not genetically related to the surrogate mother, the intended mother's rights
trumped those of the surrogate mother.19

However, even when neither the intended mother nor the surrogate mother was genetically
related to the child, the intended mother's rights prevailed over the surrogate mother's. 20 In In
re Marriage of Buzzanca, an embryo that was genetically unrelated to the surrogate mother
and the intended parents was placed in the surrogate mother. 21 There, the California Court of
Appeals held that the surrogate mother carried and gave birth to the child on behalf of the
intended mother and father, so the intended mother and father were the child's legal parents.22

In contrast, the Superior Court of New Jersey held that the surrogate mother's rights trumped
the intended mother's rights even when the child was genetically related to the intended
mother and not the surrogate mother in A.H.W. v. G.H.B.23 There the intended parents, along
with the surrogate mother, sought a prebirth order directing the hospital to put the intended
parents' names on the child's birth certificate and establishing the intended parents as the legal
parents.24 The court found that “[a] bond is created between a [surrogate] mother and the
baby she carries in her womb for nine months” because of the importance of the surrogate
mother's role in the development of the child. 25 The strength of this bond caused the court to
find that a surrogate mother should not be compelled to surrender her rights by a prebirth
order, but that she must wait seventy-two hours after the birth before she could lawfully
surrender her parental rights.26 Therefore, if the surrogate mother chose not to surrender her
parental rights, she would have the ability to seek custody of the child.27

Although courts typically resolve parental rights in favor of the intended parents, legislatures
disagree vastly in their promulgations of the surrogate mother's parental rights.28 The majority
of states that have addressed the issue of the surrogate mother's rights find that the surrogate
17 Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993).
18 Id. at 496.
19 See id. at 504; accord Culliton v. Beth Israel Deaconess Med. Ctr., 756 N.E.2d 1133, 1138 (Mass.
2001)Belsito v. Clark, 644 N.E.2d 760, 767
20 In re Marriage of Buzzanca, 72 Cal. Rptr. 280, 282
21 Id at 281
22 If at 282
23 772 A.2d 948, 949
24 Id. at 949-50.
25 Id. at 953.
26 See id. at 953-54.
27 See id. at 954.
28 Compare Ariz. Rev. Stat. Ann. § 25-218, with Fla. Stat. Ann. § 742.16.
 9

mother is the legal mother of the child regardless of whether she is actually the genetic
mother of the child.29 Arizona's statute, which prohibits surrogacy contracts, declares that the
surrogate mother is the legal mother without reference to the genetic composition of the
child.30 Similarly, Utah's statute, which also prohibits surrogacy contracts, presumes that “the
surrogate mother is the mother of the child for all legal purposes,” without reference to the
genetic composition of the child.31 North Dakota's statute is comparable and also declares that
the surrogate mother is the legal mother of the child. 32 Under Virginia's statute, if the
surrogacy contract is not judicially preapproved and the surrogate mother exercises her right
to keep the child, she is the legal mother of the child, regardless of whether or not she is
genetically related to the child.33

Two states, Florida and Virginia, promulgate that the intended parents are the legal parents of
a child born pursuant to a surrogacy contract approved by the court. 34 Florida's statute
requires only that the court find an enforceable surrogacy contract in which at least one of the
intended parents is also the genetic parent of the child. 35 Upon this finding, the statute
requires the court to “enter an order stating that the intended parents are the legal parents of
the child”; therefore, the surrogate mother has no parental rights to the child. 36 Virginia's
statute requires that the surrogacy agreement be judicially authorized before the surrogate
mother is impregnated.37 If the parties satisfy this requirement, the intended parents are
deemed the legal parents of the child, and the surrogate mother has no legal claims to the
child.38

2. PATERNITY

As per UK Law, Applying the rules governing ascription of legal fatherhood to a surrogacy
agreement is rather complaicated. The rebuttable presumption of legitimacy within marriage
would lead to to the surrogate mother’s husband [if she has one], being treated as the legal
father from birth. This will be rebuttable by DNA tests etablishing that the surrogate mother’s

29 Ariz. Rev. Stat. Ann. § 25-218(B); N.D. Cent. Code § 14-18-05 (1997); Utah Code Ann. § 76-7-204(3)(a)
(1999); Va. Code Ann. § 20-158(E)(1), (2).
30 Ariz. Rev. Stat. Ann. § 25-218(B).
31 Utah Code Ann. § 76-7-204(3).
32 N.D. Cent. Code § 14-18-05.
33 Va. Code Ann. § 20-158(E)(1), (2).
34 Fla. Stat. Ann. § 742.16
35 Ibid
36 Ibid
37 Va. Code Ann. § 20-158(D)
38 Ibid
 10

husband is not in fact the child’s genetic parent. DNA tests would identify the commissioning
father as the child’s father.

There is also a rebuttable presumption that the man who is registered as the father on the birth
certificate, is the child’s legal father.39 If the surrogate mother registers her partner on the
child’s birth certificate, the presumption that he is the father could again be rebutted by DNA
tests which will show that he is not. In the case of the commissioning father, however, DNA
tests might confirm his paternity. However, Section 111 of The Adoption of Children Act,
2003, recognizes the man who is registered on the child’s birth certificate, as the legal father.

Where IVF surrogacy is involved, the statutory definition of ‘father’ in Section 28 of The
Human Fertilisation and Embryology Act, 1990 may also apply, albeit with odd results.
Section 28 would treat the surrogate mother’s husband as the father of the child, provided he
has one.

It would not be possible for the commissioning father to acquire legal parenthood via Section
28(3) or by arguing that he is being ‘treated together’ with the surrogate because Section
28(3) only applies where the woman received treatment with another man’s sperm.

The question of legal paternity arose in Re Q (Parental Order)40 on a set of rather unusual
facts. Herein, the child was concieved following a surrogacy agreement created using an egg
from the commissioning mother and sperm from an anonymous donor. Johnon J., applied
Section 28 and came to the conclusion that the child in question did not have a legal father.

3. POSITION IN INDIA

Commercial surrogacy in India has been recognised as an accepted practise by the ART
(Regulation) Bill, 200841, and the ICMR guidelines42 and the Supreme Court of India43,

39 Section 34(2) of The Births and Deaths Registration Act, 1953.

40 [1996] 1 FLR 369
41 The Bill states that 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 , to the biological parents, shall be
borne by the couple or individual seeking surrogacy.
Further, the surrogate mother may also receive monetary compensation from the couple or individual, as the
case may be, for agreeing to act as such surrogate.
42 The Guidelines state that the surrogate mother would 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.. The payments to surrogate mothers should cover all genuine
expenses associated with the pregnancy including the post-natal care.
43 See the Baby M Case, see also Infra Note 98
 11

however, the 228th Law Commission Report, suggested the prohibition on surrogacy for
commercial purposes in India contending it to be unethical and against public policy.

In the case of Jan Balaz v. Anand Municipality & Ors 44, the Hon’ble Gujarat High Court has
clearly held that citizenship of the surrogate be awarded to the commissioning parents and
thus, as a corollary, the legal parenthood of the surrogate child shall vest with the
commissioning parents.

The same position also prevails in the Assisted Reproductive Technologies Bill, 2008. A
simple parsing of the text of Sections 34(4) 45 read with 34(10)46, clearly provides for the
commissioning parents as the legal parents of the surrogate child.

Furthermore, Section 3547 of the bill recognises the status of the surrogate child in various
situations. All these cases, however, point out to the fact that the commissioning parents are
the legal parents/mother/father of the surrogate child.

44 Infra Note 98
45 Section 34(4) reads as: A surrogate mother shall relinquish all parental rights over the child.
46 Section 34(10) reads as: The birth certificate issued in respect of a baby born through surrogacy shall bear
the name(s) of the genetic parents / parent of the baby.
47 35. Determination of status of the child –
(1) A child born to a married couple through the use of assisted reproductive technology shall be presumed to be
the legitimate child of the couple, having been born in wedlock and with the consent of both spouses, and shall
have identical legal rights as a legitimate child born through sexual intercourse.
(2) A child born to an unmarried couple through the use of assisted reproductive technology, with the consent of
both the parties, shall be the legitimate child of both parties.
(3) In the case of a single woman the child will be the legitimate child of the woman, and in the case of a single
man the child will be the legitimate child of the man.
(4) In case a married or unmarried couple separates or gets divorced, as the case may be, after both parties
consented to the assisted reproductive technology treatment but before the child is born, the child shall be the
legitimate child of the couple.
(5) A child born to a woman artificially inseminated with the stored sperm of her dead husband shall be
considered as the legitimate child of the couple.
(6) If a donated ovum contains ooplasm from another donor ovum, both the donors shall be medically tested for
such diseases, sexually transmitted or otherwise, as may be prescribed, and all other communicable diseases
which may endanger the health of the child, and the donor of both the ooplasm and the ovum shall relinquish all
parental rights in relation to such child.
(7) The birth certificate of a child born through the use of assisted reproductive technology shall contain the
name or names of the parent or parents, as the case may be, who sought such use.
 12

INTERNATIONAL INSTRUMENTS FURTHERING THE STATUS OF THE

CHILD

The primary international treaty governing the rights of the child be it mental, emotional and
legal rights is the United Nations Convention on the Rights of the Child. 48 In addition to the
afore – mentioned instrument, there are other protocols also, viz., The United Nations
Declaration on the Rights of the Child (1959)49 and various other regional treaties.50 This
instrument gives out in detail the inalienable rights of a child as drawn from the Charter of
the United Nations & Universal Declaration of Human Rights.51

Before moving ahead with the rights described in the convention, a preliminary issue at hands
needs to be clarified, viz., “whether a ‘surrogate child’ actually comes within the definition
of ‘child’ as given in the convention?”

The problem arises because the principal instrument, viz., Convention on The Rights of The
Child, does not explicitly include children born out of surrogacy agreements as ‘child’ within
the meaning as given in the convention. 52 However, there have been certain practices around
the world which fortify the submission, that, surrogate children are included within the
treaty’s domain.

The definition of ‘child’ is an inclusive definition, i.e., it does not lay down certain categories
or what is called in statutory interpretation as ‘explanatory definitions’. Furthermore,

48 1577 UNTS 3, entered into force on 2nd September 1990, full text available at
[Link] [English], last visited on 12.03.2010.

This convention has often been described as a hallmark in the development of human rights. Built on varied
legal systems and cultural traditions, the Convention is a universally agreed set of non-negotiable standards and
obligations. These basic standards—also called human rights—set minimum entitlements and freedoms that
should be respected by governments. They are founded on respect for the dignity and worth of each individual,
regardless of race, colour, gender, language, religion, opinions, origins, wealth, birth status or ability and
therefore apply to every human being everywhere. With these rights comes the obligation on both governments
and individuals not to infringe on the parallel rights of others. These standards are both interdependent and
indivisible; we cannot ensure some rights without or at the expense of other rights.
49 U.N. Doc. A/4354, text [English] available at [Link] last visited
on 12.03.2010
50 Examples of these treaties can be found in The Inter – American System, The European Union, Asia Pacific
& The Arabic and Islamic Instruments. Please refer to [Link] last
visited on 12.03.2010 for the text [English] to the treaties.
51 Preamble to the Convention on The Rights of the Child
52 The definition of ‘child’ occuring in Article 1 is as follows: ‘For the purposes of the present Convention, a
child means every human being below the age of eighteen years unless under the law applicable to the child,
majority is attained earlier.’
 13

considering that this treaty is a in essence, one that recognizes human rights, it must be given
a wide and beneficial construction.53

Apart from statutory construction, there have been state practices giving rise to this
understanding of the Convention. For e.g., the Legislative Assembly of Queensland recently
in 2007 constituted The Investigation into Altruistic Surrogacy Committee. While tabling its
report in 2009, the committee dealt with a number of issues.54 However, it categorically held:

‘The United Nations Convention on The Rights of the Child recognizes and
ensures every child’s right to familial relationships. Children born out of
surrogacy should also possess the same rights.’55

The same view has been advocated, affirmed and reiterated.56 Hence, it is to be understood
that a surrogate child comes within the domain of the Convention. Once this issue is put to
rest, we need to determine what rights flow from this document. The same can be done by
parsing the text of the document itself.

The Convention sets out these rights in 54 articles and two Optional Protocols. It spells out
the basic human rights that children everywhere have: the right to survival57; to develop to the
fullest58; to protection from harmful influences 59, abuse and exploitation; and to participate
fully in family, cultural and social life 60. The four core principles of the Convention are non-
discrimination; devotion to the best interests of the child; the right to life, survival and
development; and respect for the views of the child. Every right spelled out in the Convention
is inherent to the human dignity and harmonious development of every child. The Convention

53 R. Baratta, Should Invalid Reservations to Human Rights Treaties be Disregarded?, Eur J. Int Law, 2000, pg.
413 – 425. See also Peter J. Spiro, Treaties, International Law and Constitutional Rights, Stanford Law Review,
Vol. 55, 2003, pg. 176-192
54 Report of the Investigation into Altruistic Surrogacy Committee, tabled before the Queensland Legislative
Assembly, 2009. The entire text of the report is available at [Link]
%20response%20to%20altruistic%20surrogacy/Attachments/Surrogacy%[Link], last visited on
12.03.2010
55 Ibid, see also John Tobin, The Convention on the Rights of the Child: The Rights and Best Interests of
Children Conceived Through Assisted Reproduction, September, 2004, available at [Link], last
visited on 12.03.2010
56 J. Neville Turner, Panic over children’s rights, Newcastle Law Review, Vol. 1 No. 2, pg. 80. See also Tim
Cannon, Surrogacy: A Black Hole for Children’s Rights, Report by the Australian Family Association, available
at [Link]
%20AFA%20Journal%[Link], last visited on 12.03.2010
57 Article 6(2)
58 Article 29(2)
59 Article 32(1)
60 Article 3(1)
 14

protects children's rights by setting standards in health care; education; and legal, civil and
social services.

In the Convention there are 40 substantive articles that provide rights to children covering
matters ranging from juvenile justice and child labour to education and health with several
rights particularly relevant to children in the context of adoption and assisted reproductive
technology, including:

 The right of a child to know and be cared for by his or her parents as far
as possible;61
 The right to an identity62; and
 A collection of rights that set out the obligations and responsibilities of
parents to protect their children from harm, provide them with a safe and
secure living environment and ensure their children’s best interests
remain their basic concern.63

With these basic rights set in flow by the document, it shall now be examined whether such
rights are recognized world over, or are they merely a façade? Pursuant to this, the author
shall also see the possibility of recognition and easy adoption of these rights into the Indian
Jurisprudence.

61 Supra Note 28
62 Article 8(1)
63 Articles 6, 29 and 34 of The Convention.
 15

AXIOMATIC RECOGNITION OF STATUS OF THE SURROGATE CHILD

This chapter deals with what rights, either constitutional or moral are available to a child born
out of surrogacy. It also includes the inherent conflict of laws that are present in Indian legal
systems and suggestions to better the same.

1. THE ‘DOCTRINE OF BETTER INTEREST’64, HISTORICAL DEVELOPMENT & MEANING

The surrogate mother contract is an agreement between the surrogate mother and the
biological father.65 The wife of the biological father is not a party to the contract in any way. 66
Under the contract, the surrogate mother promises to be artificially inseminated, give birth to
a child, terminate her parental rights, and relinquish custody of the child to the biological
father.67 The biological father agrees to pay the surrogate mother a fee, as well as medical
expenses, cost of travel, and attorneys' fees.68 Furthermore, he agrees to accept custody of the
child. Other clauses of the contract may include: the surrogate mother's promise not to form
or attempt to form a relationship with the child; limitations on the surrogate mother's rights to
smoke, drink, or have intercourse; and the biological father's right to force the surrogate
mother to submit to an amniocentesis test or an abortion.69

The legal significance of these clauses, as well as the contract, is of interest to the surrogate
mother, the biological father, his wife, and especially, the surrogate parenting companies.
These companies generally disclaim any responsibility for the validity of the contracts due to
the serious questions of law that may arise. 70 In the interest of predictability, courts and
legislatures must decide on the validity and enforceability of these contracts.71

64 Predominantly it is a doctrine applied in The United States of America

65 In re Baby M, 537 A.2d 1227 (1988) (contract between biological father and surrogate mother).
66 Id. The wife is not a party to the surrogate mother contract presumably to circumvent the baby-selling laws.
The contract drafters attempt to avoid the exchange of money for an adoption by making the contracting parties
the biological father and surrogate mother because of the argument that the biological father need not buy his
own child. See also In re Baby M, 525 A.2d 1128 (a father cannot purchase what is already his),
67 Smith, The Razor's Edge of Human Bonding: Artificial Fathers and Surrogate Mothers, 5 W. NEW ENG. L.
REV. 639, 662 (1983)
68 Marybeth Whitehead, The Debate About Surrogate Motherhood, 8 HARV. WOMEN'S L.J. 231, 234 (1985)
(fees limit couples able to engage surrogate mother's services);
69 Brian J. Carney, Where do the Children Go – Surrogate Mother Contracts & The Best Interests of the Child,
22 Suffolk U. L. Rev. 1187
70 Ibid
71 Recently, five states of The United States passed legislation expressly invalidating surrogate mother
contracts. See Fla. Stat. Ann. § 63,212 (prohibit commercial surrogacy but allow other surrogacy); Ind. Code
Ann. § 31-8-2-2 (surrogate contracts void); Ky. Rev. Stat. Ann § 199.590 (surrogate mother contracts void); La.
Rev. Stat. Ann. § 9:2713 (contract for surrogate motherhood null and void); Neb. Rev. Stat. § 25-21,200
(surrogate parenthood contract void and unenforceable).
 16

The United States Supreme Court has declared that the Constitution protects the relationship
between parent and child.72 Natural parents have a fundamental right in the companionship,
care, custody, and management of their children, which is far more precious than any
property right and is paramount as against any third persons. 73 Nevertheless, when parents are
unfit, plan to give a child up for adoption, or file for divorce, they threaten the child's welfare
and the court must act to protect the child.74

Today in the United States, courts use their ‘parens patriae’75 power to determine the best
interests of the child in making decisions as to custody, guardianship, adoption, and
termination of parental rights. Courts begin this analysis by presuming that the child's best
interests are served when placed with a parent. 76 A court, however, may terminate parental
rights with or without parental consent, when necessary. 77 The best interests test was applied
to the surrogate context for the first time in Baby M to determine who would receive custody
when the surrogate mother refused to deliver the child to the commissioning father.78

Unlike custody cases, where the decision only affects a parent's right to custody and is open
to court review, termination of parental rights irrevocably ends all parental rights and
responsibilities for a child. Thus, courts are reluctant to terminate parental rights without a
compelling need. Generally, to terminate parental rights, a court must find parental unfitness
or abandonment, and that termination is in the best interests of the child. 79 In determining
whether severing parental rights serves the child's best interests 80, a court decides whether

72 Quillon v. Walcott, 434 U.S. 246 (1978), The United States Supreme Court has recognized that the
fourteenth amendment's concept of personal liberty includes a right of privacy which encompasses such
fundamental familial rights as marriage [Loving v. Virginia, 388 U.S. 1, 12 (1967)], contraception [Eisenstadt v.
Baird, 405 U.S. 438, 453-54 (1972)] family relationships [Prince v. Massachusetts, 321 U.S. 158, 166 (1944)],
child rearing and education [Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)] and procreation [Skinner v.
Oklahoma, 316 U.S. 535, 541-42 (1942)]. The state needs a narrowly drawn compelling interest to interfere
with or burden any of these fundamental rights [Carey v. Population Serv's Int'l, 431 U.S. 678, 686 (1976)]
73 Prince v. Massachusetts, 321 U.S. 158, 166 (1944)
74 Ibid
75 Parens patriae is Latin for "parent of the nation". In law, it refers to the public policy power of the state to
intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of
any child or individual who is in need of protection
76 Supra Note 37
77 Ibid
78 Supra Note 33
79 Supra Note 37
80 In Ex parte Devine, 398 So. 2d 686 (Ala. 1981) the Supreme Court of Alabama provided a comprehensive
list of the relevant factors in making the best interests determination. The Court noted ‘The sex and age of the
children are indeed very important considerations; however, the court must go beyond these to consider the
characteristics and needs of each child, including their emotional, social, moral, material and educational
needs; the respective home environments offered by the parties; the characteristics of those seeking custody,
including age, character, stability, mental and physical health; the capacity and interest of each parent to
 17

termination will lead to a better, more stable placement.

2. DICHOTOMY WITH ARTICLE 21 OF THE CONSTITUTION OF INDIA – HOW TO REALIZE

THE STATUS OF THE CHILD

The Constitution of India provides Fundamental Rights under Chapter III.  These rights are
guaranteed by the constitution. One of these rights is provided under Article 21, which reads
as follows:
Article 21. Protection Of Life And Personal Liberty: No person shall be
deprived of his life or personal liberty except according to procedure
established by law.

The object of the fundamental right under Article 21 is to prevent encroachment upon
personal liberty and deprivation of life except according to procedure established by law. 81
Consistent with this interpretation, it can be safely said that a child deserves the moral, legal,
and other rights to ensure its fullest development.82 This can, thus be said to be a corollary of
the ‘Doctrine of Best Interest,’83 as applied in the United States of America and various
jurisdictions world over. Infact, the National Commission to review the working of the
Constitution has specifically in its Final Report on Fundamental Rights, had recommended
the inclusion of Article 24A84 in Part III of The Constitution of India, to provide specifically
for child rights.

provide for the emotional, social, moral, material and educational needs of the children; the interpersonal
relationship between each child and each parent; the interpersonal relationship between the children; the effect
on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is
of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent
investigator; available alternatives; and any other relevant matter the evidence may disclose.’
81 M.P. Jain, Indian Constitutional Law, (5th ed., Wadhwa & Company, New Delhi, 2006)
82 Vidhan Maheshwari, Article 21 of The Constitution of India – The Expanding Horizons, paper available at
[Link] last visited on 13.03.2010
83 Supra Note 48
84 Art. 24A.  Every child shall have the right to care and assistance in basic needs and protection from all forms
of neglect, harm and exploitation.”, the entire text of the report is available at
[Link] last visited on 13.03.2010
 18

However, the conflict arises when we compare the ‘right to family’ & ‘right to procreation’
with the rights of the child. The ‘right to family’ has been recognized an inalienable right of
humans all over the world.85 This has also been recognized in European Union.86
In India, the Hon’ble Supreme Court rendered a landmark judgment on 28.08.2009 in Suchita
Srivastava & Anr. v. Chandigarh Administration87, wherein the court noted that a decision to
bear kids lays upon the woman in question.88

This is further complicated by a perusal of the Assisted Reproductive Technology Bill, 2008;
currently in discussion before the parliament. A conjoint reading of Sections 34(1) 89 &
34(4)90, clearly provide that a surrogacy contract is legal and enforceable. Furthermore, it
does not lay down any eligibility criteria for the commissioning parents while on the
contrary, lays down exhaustive restrictions on the surrogate mother 91, which is presumably
made in the interest of the child born out of such a surrogacy agreement.

Thus, the bill in essence, leaves it to the surrogacy contract to determine the rights of the
child. This from a legal standpoint, clearly vetoes and effectively nullifies the rights of the
child because of the absence of any statutory provision. Such a provision hence, must be
struck down. Rather, the more effective and plausible that ensures rights of all the parties,

85 In the United States of America, the Supreme Court upheld the right to privacy and ended the ban on birth
control back in 1965, in the case of Griswold v. Connecticut, 381 US 479 (1965) . Eight years later, the Supreme
Court ruled the right to privacy included abortions in the landmark case of Roe v. Wade . In 1976, Planned
Parenthood of Central Missouri v. Danfort , ruled that requiring consent by the husband and the consent from a
parent if a person was under 18 was unconstitutional. This case supported a woman's control over her own body
and reproductive system. William Brennan, J. stated:
"If the right to privacy means anything, it is the right of the individual, married or single, to be free from
unwanted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or
beget a child."
86 The European Commission of Human Rights has propounded in its judgments, like that in cases of
Bruggemann and Scheuten v. Federal Republic of Germany, 3 EHRR 244 1977 and Paton v. United Kingdom 3
EHRR 408 1980; decisions one makes about one's body, particularly one's reproductive capacity, lie squarely in
the domain of private decision-making. The right to determine the number and spacing of one's children relates
to the right to privacy
87 AIR 2010 SC 235
88 There is no doubt that a woman's right to make reproductive choices is also a dimension of 'personal liberty'
as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices
can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's
right to privacy, dignity and bodily integrity should be respected
89 Rights and duties in relation to surrogacy –
(1) Both the couple or individual seeking surrogacy through the use of assisted reproductive technology, and the
surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable.
90 A surrogate mother shall relinquish all parental rights over the child.
91 Section 34(6): Any woman seeking or agreeing to act as a surrogate mother shall be medically tested for such
diseases, sexually transmitted or otherwise, as may be prescribed, and all other communicable diseases which
may endanger the health of the child, and must declare in writing that she has not undergone intravenous
medical treatment or received a blood transfusion.
 19

viz., the commissioning parents, the surrogate mother and the child is the “Best Interest
Doctrine”92 so as to realize the rights of the child and all connected parties. After all, the state
has a compelling interest in preserving life.93
3. LEGAL STATUS AVAILABLE TO SURROGATE CHILD

Apart from the afore – mentioned discussion on realization of principle right of child under
Article 21 of The Constitution of India, it is imperative to identify the other legal rights also
available to a child born out of a surrogacy agreement.

India is a signatory to the Convention on the Rights of the Child, 1990. 94 The same has also
been introduced in national legislation by means of enacting the Commission for Protection
of Child Rights Act, 2005; wherein the entire declaration, in essence, is absorbed into state
law by means of Section 2(b).95 Hence, all the rights as mentioned in the said document and
as displayed in the preceding parts of this paper 96, have to be given effect. However, there are
procedural lacunae that make these noble rights ineffective.

Firstly, the means of taking ‘ownership’ on a surrogate child are in question. In India, there is
no law governing surrogacy, and hence, in such an absence, it would be plausible that the
only route available is either via adoption or guardianship. The problem with adoption in
light of The Hindu Adoptions and Maintenance Act, 1985 is highlighted below.

Unlike Western Countries, there is no secular law regarding adoption in India. This deprives
a large section of the population of their right to adopt. The only legislation regulating
adoption in India is the Hindu Adoptions and Maintenance Act, 1956, which is applicable to
Hindus only. Let us examine some sections, which will directly affect the surrogate
agreements.

Section 5 of the Act stipulates that all adoptions should be made in compliance with the
provisions of this Act and if any adoption is made in contravention of these provisions, it

92 Supra Note 48
93 Roe v. Wade 410 US 113 (1973)
94 [Link] last visited on 13.03.2010
95 2(b) reads as follows: ‘child rights’ includes the children’s rights adopted in The United Nations Convention
on the Rights of the Child on the 20th November, 1989 and ratified by the Government of India on the 11th
December, 1992.
96 Supra Notes 29, 30, 31
 20

shall be void. Section 7 says that a Hindu male can adopt provided he is a major and is of
sound mind. The section adds that if he has a wife living he should obtain her consent.
Section 8 provides the right of adoption to an unmarried Hindu woman provided she is a
major and is of sound mind. However, if she is married she can adopt only if her husband is
incapable of giving consent, or is dead or has ceased to be a Hindu. So in a family, only the
husband can adopt except under certain circumstances.

Section 9 says that consent of the natural mother should be taken before giving the child in
adoption. This section has its own significance because once when the adoption takes place
all the rights of the natural parents on the child are cut off forever. Section 17 of the Act
prohibits certain payments involved in the process of adoption. This section penalises such
payments by prescribing an imprisonment of six months or with fine or with both.

At this juncture, the point that agitates one's mind is whether this adoption statute can absorb
surrogacy. Primarily, there is no secular law regarding adoption. So the needy couple will
have to be Hindu or they will have to convert themselves to Hindus. 97 Though there is
informal adoption in other religions, if some legal complications arise they will not have
access to the courts. In surrogacy, the wife of the biological father adopts the child. This is in
contravention of the Act, which stipulates that in a family the wife cannot adopt except under
certain circumstances as seen before.

The next controversial point is Section 9 of the Act, which states that the consent of the
natural mother is a must. Here, the natural mother is the surrogate mother. This consent
should be informed consent or in other words she should be informed of all the complications
involved in the process. Students in Medical science and Psychiatry have shown that in the
later stages of pregnancy the mother will develop an emotional bond with the foetus. 98 So
later she may refuse to hand over the baby to the natural father. In such a case, can the
surrogate be compelled to give up the child for enforcing the agreement? Can it be argued
that the consent from the surrogate be taken only after childbirth?

97 The Juvenile Justice Act, 2000 cannot be used here for adoption. In the definitional clause, it clearly
highlights which children can be adopted. Surrogacy is not a part of the definition upon statutory construction.
98 Helsh Levin, How love begins between parent and child in selected readings on mother infant bonding,
Columbia Human Rights Law Review Vol. 20. No. 1 Fall. 1988.
 21

The consideration involved in a surrogate agreement is a fee paid to the surrogate mother and
the legal and medical expenses. The Hindu Adoption and Maintenance Act, 1985 prohibits
any consideration involved in adoption. Section 5 of the Act provides that any adoption made
in contravention of the provisions of the Act shall be void. Therefore, if a consideration is
involved in adoption, it shall be void. From this one can infer that the surrogacy contract
itself is void in India. Section 23 of the Indian contract Act, 1872 reads as;

"What considerations and objects are lawful and what not —

The consideration or object of an agreement is lawful, unless it is forbidden by
law; is of such a nature that if permitted it would defeat the provisions of any
law; or is fraudulent; or involves injury to the person or property of another; or
the court regards it as immoral or as opposed to public policy.

In each of these cases the consideration or object of an agreement is said to be unlawful.

Every agreement of which the object or consideration is unlawful is void. Since the very
agreement defeats Section 23 of Indian Contract Act, 1872 the concept cannot take roots in
India.99 All these circumstances need a careful consideration since the practice has crept.

However, the Draft Assisted Reproductive Technologies Bill, 2008 does lay this issue to rest.
The surrogate child is assumed to be legal child for all purposes of law as is evident from
Section 34(4) read along with Section 35 of the bill.

Consequently, all the rights that a child accrues upon birth, viz., right to succession, property,
right to sue, right to nationality etc. shall be given as per the respective laws governing the
commissioning parents.100

Only in the case of foreign nationals, the nationality so recognized will be that of the
surrogate mother. The Gujarat High Court in the case of Jan Balaz v. Anand Municipality &
Ors101 recognized the same.102 However, the author proposes that these issues be settled once
99 R. Latha, The Hindu Adoptions & Maintainence Act, 1985 and Surrogacy, available at
[Link] last visited on
13.03.2010
100 As per the ART Bill, 2008, the genetic parents are the commissioning parents, i.e., only full surrogacy is
recognized in India as per the bill. See also Note 1
101 AIR 2010 Guj 21
102 The High Court held the surrogate mother as the “natural mother” and her nationality to decide the
citizenship of the new born babies irrespective of the nationality of the father. The High Court also asked the
 22

the best interests of the child have been determined. All the other rights, shall flow from the
same.

CONCLUSION

Practices like eugenics and surrogacy are gaining acceptance in the West, and these trends are
being reflected in the Indian scenario. Although surrogacy is an acceptable idea to most, it is
essential that in drafting such laws, one also take imperative note of the requirements of the
child and the same rights be honoured, be it occurring in international instruments or
municipal laws.

Hence, there is immediate need to change our existing laws, either on adoption or custody.
Furthermore, our constitution should recognize the inherent rights of a child and thus to
effectuate the same, we must adopt the best interest doctrine. Childlessness is a very real and
tremendous problem for infertile couples. Sympathy as well as a search for a solution is
necessary. Solutions to difficult problems, however, do not appear in an instant. Courts must
scrutinize solutions to decide the potentially grave ramifications of their results. A review of
surrogate motherhood as a solution to the problem of childlessness reveals that its costs
outweigh its benefits.

The baby-selling laws, and public policies proscribing the sale of human beings, promoting
the family, preventing the exploitation of women, and preventing class distinctions, demand
that courts and legislatures declare surrogate mother contracts void. Although gratuitous
surrogate motherhood may still negatively affect public policies, the offensive baby selling
aspects are resolved when the biological father does not pay a fee to the surrogate mother.

Notwithstanding the determination as to contract validity, custody is a separate issue.

Because children's rights are the most important, vulnerable, and forgotten rights connected
with the surrogate mother contract, a state's parens patriae interest in protecting children
should not and cannot be submissive to any contractual arrangement between parents. Thus,
when a child is born to a surrogate mother, the best interests of the child should govern a

central government to immediately frame necessary laws to clear the complications over surrogacy while
directing it to restore the Indian passports to the twin sons of a German father given birth by an Indian surrogate
mother.
 23

court's determination as to that child's custody and as to the termination of the surrogate
mother's parental rights.