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SURROGACY: LEGAL, ETHICAL AND MORAL ISSUES

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 CHAPTER –III
SURROGACY: LEGAL, ETHICAL
AND MORAL ISSUES
 P a g e | 78

CHAPTER III
CHAPTER III

SURROGACY: LEGAL, ETHICAL AND MORAL ISSUES

―When nature lets you down, surrogacy steps in and resumes

the process to bring you the gift of parenthood‖

...Anonymous

3.1 Introduction

Infertility among married couples is a major problem affecting not only their
marital life but also their social life. The assisted reproductive technologies have
come to the help of such infertile couples. Until recently, they had only two options
either to adopt a child or to remain childless. However, with the advent of the new
reproductive technologies, infertile couples now have the advantage of selecting from
a number of options, including artificial insemination, in-vitro fertilization, and
surrogacy. Thus human procreation can be accomplished through a variety of
reproductive technologies that do not involve sexual intercourse. Of these new
technologies, surrogacy is arguably the most controversial.

In surrogacy, a woman is artificially inseminated with a man‘s sperm. The

woman not only bears his child in her womb but later on after the birth of the child
also hands over that child to the man and his wife to be brought up as their child. In
this method, the egg and sperm are united in a culture dish, where the egg is fertilized
and the resulting embryo is implanted in the woman‘s uterus1. Surrogate parenting is
a scientific extension of the natural ability to reproduce. Surrogacy has become an
attractive alternative for young couples to overcome the problems of adopting
children and thereby to reduce high infertility rates2. Nevertheless, during the past

1
See, Judith Lynn Bick Rice, ―The Need For Statutes Regulating Artificial Insemination By Donors‖,
Ohio State Law Journal, 1055 (1985).
2
See, Steven M. Recht, ―‗M‘ is for Money: Baby M and the Surrogate Motherhood Controversy‖ 37
 P a g e | 79

fifteen years, the practice of surrogacy has gained respect as an attractive

reproductive alternative for infertile couples who wish to conceive a child
biologically related to at least one of them 3 . Due to its various advantages when
compared to adoption as well as other reproductive technologies, the practice of
surrogacy has gained wide recognition all over the world and particularly in
India. Developments in the procedures such as artificial insemination and in-vitro
fertilization have made surrogacy a viable alternative means of reproduction in
infertile couples4. Like any other technological advancement, surrogacy also has its
own pros and cons which need to be addressed. This chapter elucidates the concept
and meaning of surrogacy and traces the history and development of surrogacy from
ancient to modern period. It highlights the advantages of surrogacy over other forms
of ART. Further it identifies the various legal and ethical debates surrounding
surrogacy and also examines the response of foreign countries. It also discusses the
position of surrogacy in India and the legal framework for its regulation.

3.2 Surrogacy: Meaning and Definition

Surrogacy is an important method of assisted human procreation for those who

cannot, or choose not, to procreate in the traditional manner 5. Surrogacy, one of the
most dramatic of the new reproductive technologies, is an arrangement by which a
woman agrees to be impregnated by assisted conception, carries the resulting foetus,
and relinquishes all parental rights of the child at birth6. This method of ART is like a
boon to those married women who are unable to conceive due to various physical,
genetic and medical reasons.

A woman at times may not be able to carry her own genetic offspring. For
example, a woman might be unable to ovulate or carry a pregnancy, if she has lost her

American University Law Review, 1013 (Spring 1988).

3
Helena Ragone, Surrogate Motherhood: Conception in the Heart, West View Press, U.S.A. (1994),
p.13.
4
Lisa L. Behm, ―Legal, Moral & International Perspectives on Surrogate Motherhood: The Call for a
Uniform Regulatory Scheme in the United States‖, 2 DePaul J. of Health Care L. 557 (Spring 1999).
5
Kathryn Venturatos Lorio, ―Alternative Means of Reproduction: Virgin Territory for Legislation‖, 44
Louisiana Law Review, 1641 (1984), at p.1655.
6
Katherine B. Lieber, ―Selling the Womb: Can the Feminist Critique of Surrogacy be Answered?‖, 68
Indiana Law Journal, 205 (1992).
 P a g e | 80

womb and ovaries because of cancer or if she may have never been born with them.
Similarly, a woman might be able to ovulate but unable to carry a pregnancy because
of high blood pressure or risky skin diseases. By using a surrogate, such women could
still raise a child that is their partner‘s biological child 7. Further, a woman who cannot
retain the conceived foetus due to a history of spontaneous abortion may demand her
partner to go in for this arrangement to fulfill her dream of having a biological child.
Also women suffering from life threatening diseases like kidney diseases or multiple
sclerosis may also opt for this method8. Likewise, in this commercial and materialistic
world it is not surprising that cases have been reported in which figure conscious
women have opted for this method with the desire of maintaining their beauty and
hence have allowed some other woman to bear a child for them9. Career may also be
cited as a reason encouraging the husband to go in for a surrogate arrangement 10.

Surrogacy is traditionally defined as the procedure whereby a couple contracts

with a woman (known as the surrogate) to conceive a child for them, carry it to term,
and then relinquish to the couple all her parental rights11. The word ‗surrogate‘ has its
origin from a Latin word ‗surrogatus‘, meaning a substitute, that is, a person
appointed to act in the place of another. Hence a surrogate mother is a woman who
carries a child on behalf of another woman, either from her own ovum or from the
implantation in her womb of a fertilized egg from another woman.

Black’s Law Dictionary defines surrogacy as an ―agreement wherein a woman

agrees to be artificially inseminated with the semen of another woman‘s husband. She
agrees to conceive a child, carry the child to term and after the birth, assign her

7
Jonathan Herring, Medical Law and Ethics, Oxford University Press, United Kingdon (2006), p.271.
8
See, L. Haberfield, ―Surrogate Motherhood in Victoria: What now for Altruistic Surrogacy?‖,
Monash University, Australia, 37 (1988), available at <www.heiononline.org/> Visited on 10.5. 2011.
9
For example, Hollywood celebrities such as Deidre Hall and Joan Lunden, Michael Jackson, Angela
Bassett, and Kelsey Grammer. See Elly Teman, Birthing a Mother: The Surrogate Body and the
Pregnant Self, University of California Press, California (2010), p.298; Cara Birrittieri, What Every
Woman Should Know About Fertility and Her Biological Clock, The Carrier Press, Inc., U.S.A. (2005),
p.144.
10
Sidharacharyulu, ―Surrogacy: Legal Implications‖, 3 N. C. L. J. 60 (1998), at p.61.
11
Christine L. Kerian, ―Surrogacy: A Last Resort Alternative for Infertile Women or Commodification
of Women‘s Bodies and Children?‖ 12 Wisconsin Women’s Law Journal, 113 (1997), at p.115.
 P a g e | 81

parental rights to the biological father and his wife 12‖. This definition, however, refers
only to one of the forms of surrogacy arrangements, namely, artificial insemination
surrogacy (also known as traditional surrogacy) 13 . The Encyclopedia Britannica
defines ‗surrogate motherhood‘ as the practice in which a woman bears a child for a
couple who are unable to produce children in the usual way. Warnock Commission
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 birth14. Another
standard definition of ‗surrogacy‘ is offered by the American Law Reports in the
following manner:

―…a contractual undertaking whereby the surrogate mother, for

a fee, agrees to conceive a child through artificial insemination
with the sperm of the natural or biological father, to bear and
deliver it to the natural or biological father, and to terminate all
of her parental rights subsequent to the child‘s birth‖ 15.

The New South Wales Law Reform Commission has also defined surrogacy as …an
arrangement whereby a woman agrees to become pregnant and to bear a child for
another person or persons to whom she will transfer custody of the child at or shortly
after birth16.

Thus a ―surrogate‖ is ―a person appointed to act in the place of another‖. The

word ―mother‖, when used as a verb, includes the meaning ―to give birth to‖. Thus, a
―surrogate mother‖ is a woman appointed to give birth to a child in the place of

12
Bryan A. Garner (ed.), Black’s Law Dictionary, West -Thomson Reuters, U.S.A. (6th ed.- 1990),
p.1445.
13
Supra n. 4.
14
See, The Report of the Committee of Inquiry into Human Fertilization and Embryology, 1984 (U.K.)
, para 8.1, available at <https://www.ethicshare.org/node/751750> Visited on 10.5.2011.
15
See, ―Surrogacy: Is it Your Right?‖, available at <www. iskarasmith.blogspot.com> visited on
10.5.2011.
16
See, New South Wales Law Reform Commission, Artificial Conception - Discussion Paper 3:
Surrogate Motherhood, Sydney (1988), p 6. A similar definition is presented in National Bioethics
Consultative Committee, Surrogacy: Report 1, Australia (1990), p. 3, available at <www.catalogue.
nla.gov.au/Record/2622475> Visited on 5.6.2011.
 P a g e | 82

another17 or a woman who is artificially inseminated and will carry the resulting child
to term and then will relinquish the child to the biological father and his wife 18 .
However, the term also applies to the technique of fertilizing an ovum either in
another women‘s womb or in a test tube, and then transplanting the embryo into the
womb of the surrogate who will carry it to term 19 . Thus surrogacy is the practice
whereby a woman carries a child for another with the intention that the child should
be handed over after its birth either voluntarily or for a fee. This carrying of a child
may take different forms.

A woman who cannot bear a child for herself may commission another woman
to carry a child for her. Such a woman who asks for another to carry the pregnancy
for her is called ‘Commissioning Mother’, and the woman who agrees to bear the
child in her womb is called the ‘Carrying Mother’. The commissioning mother may
provide the egg, so she is called the ‘Genetic Mother’ also. The genetic father is the
husband of the commissioning mother or in some cases may be an anonymous
donor20.

It is to be noted here that, surrogate motherhood is not a treatment for the

historical problem of infertility, but it is a means for procuring a child who is
genetically related to at least one of the parents of a childless couple 21 . This
technology can be used by any of the following category of individuals such as
married fertile couples, infertile couples, single, gays, lesbians, widowed, divorced
and post-menopausal women. Though the use of surrogacy as a method for procuring
a biological child has become more prevalent and widely accepted in the recent
decades, it is to be noted that this method is not a twenty first century innovation, but
it was also known even in the ancient times.
17
Hutton Brown, Miriam Dent, et. al, ―Legal Rights and Issues Surrounding Conception, Pregnancy,
and Birth‖, 39 Vanderbilt Law Review, 597 (1986), at p.633.
18
Mimi Yoon, ―The Uniform Status of Children of Assisted Conception Act: Does it Protect the Best
Interests of the Child in a Surrogate Arrangement‖, 16 American Journal of Law and Medicine 525
(1990), at p.529.
19
Walter Wadlington, ―Artificial Conception: The Challenge for Family Law‖ 69 Virginia Law
Review, 465 (1983), at p.475.
20
Supra n.10.
21
Ibid.
 P a g e | 83

3.2.1 Origin and Development of Surrogacy

The concept of surrogacy has come into lime light, since the case of Elizabeth
Kane in 1980. This technology focuses on fulfilling the desire and dream of
individuals to have their own biological child with the help of another individual by
using scientific advancements. This scientific procedure encompasses long standing
concerns of human society to have an offspring to continue their legacy, name, family
and property. The origin and development of surrogacy can be traced to the ancient
cultures, religions, and developments all over the world which have shaped the
attitude of the generations towards surrogacy and its human rights implications.

The practice of surrogate motherhood has had a long history and it was
accepted in many ancient cultures. For example, the ancient Babylonian Legal Code
of Hammurabi (18th century BC) recognized the practice of surrogacy and actually
laid down detailed guidelines specifying when it would be permitted. The Old
Testament suggests that surrogacy was accepted in early Jewish society as a
legitimate way by which infertile couples could have children and create a family of
their own. The National Bioethics Consultative Committee (NBCC) Report described
the traditional Torres Strait Islander 22 surrogacy practice of a woman or couple
having a child for another woman or couple 23 . Other societies such as the Kgatla
people of Bechuanaland in Southern Africa and some traditional Hawaiian groups
undertook similar practices. In these communities surrogate motherhood is seen as an
act of friendship and generosity24. However, in European cultures, though surrogacy
was undoubtedly being practiced in the past, it had never been formally recognized by
the society or the law. Thus surrogacy was known in almost all the ancient cultures all
over the world. The origin and roots of surrogacy can be traced to the major religions

22
Torres Strait Islanders are the indigenous people of the Torres Strait Islands, part of Queensland,
Australia.
23
P. Ban, The Application of the QLD Adoption Act 1964-1988 to the Traditional Adoption Practice of
Torres Strait Islanders, Master of Social Work Thesis, University of Melbourne, (1988), p.72, quoted
in National Bioethics Consultative Committee, Surrogacy: Report 1, Australia (1990), p 38. available
at <www.catalogue.nla.gov.au/Record/2622475> Visited on 5.6.2011.
24
Glenda Emmerson, ―Surrogacy: Born For Another‖, Research Bulletin, No 8/96, Queensland
Parliamentary Library, Publications and Resources Section, Brisbane, (September 1996).
 P a g e | 84

of the world. The various religious, cultural and mythological writings also provide
an interesting insight into the use and practice of surrogacy.

3.2.2 Surrogacy in Mythology

Surrogacy is not so new as far as ―new‖ reproductive technologies are

concerned, and it is often noted that the practice dates back to Biblical times. The Old
Testament offers the example of Abraham‘s infertile wife, Sarah, who ―commissions‖
her maid Hagar to bear her a child by persuading Abraham to sleep with her 25 .
Similarly, Rachel, the barren wife of Jacob, commissions her maid Bilhah to have a
child by convincing Jacob to sleep with her 26 . The class distinctions between the
commissioning and surrogate women in these stories reflect modern day practices.
These two stories are few of the earliest examples of surrogacy practices.

In Indian mythology there are various references to the practices which are
similar to modern surrogacy. For example, in the Bhagvata Purana, there is a
reference to the birth of Balaram, which suggests the practice of surrogate
motherhood. Kamsa, the wicked king of Mathura, had imprisoned his sister Devaki
and her husband Vasudeva because a prophecy had informed him that their child
would be his killer. Every time Devaki delivered a child, he smashed its head on the
floor. In this way he killed six children. When the seventh child was conceived, the
Gods intervened. They summoned the Goddess Yogamaya and with her help they
transferred the foetus from the womb of Devaki to the womb of Rohini (Vasudeva‘s
other wife who lived with her sister Yashoda across the river Yamuna, in the village
of cowherds at Gokul) 27. Rohini gave birth to the baby, Balaram, brother of Krishna,
and secretly raised the child while Vasudev and Devaki told Kamsa that the child was

25
See Genesis 16.
26
See Genesis 30:1-8; See, Angie Godwin McEwen, Note, ―So You‘re Having Another Woman‘s
Baby: Economics and Exploitation in Gestational Surrogacy‖, 32 Vand. J. Transnat’l L. 271 (1999), at
pp.274-75.
27
Dr. Devdutt Pattanaik, ―Infertility, Artificial Insemination & Surrogate Mother in Hindu
Mythology‖ in Rachel Blatt (ed.), Wombs For Rent? Gestational Surrogacy and the New Intimacies of
the Global Market, Submitted in partial fulfillment of the requirements for a Bachelor of Arts with
Honors in Anthropology Brown University, (April 2009).
 P a g e | 85

born dead28. Thus the child conceived in the womb of Devaki was incubated in and
delivered through another womb i.e. of Rohini29. It is to be noted here that the present
modern day developments in surrogacy allow transfer of foetus which is developed in
the test tube to the womb of a women. But the above incidence in Indian mythology
refers to a type of surrogacy in which the developed foetus was transferred from one
womb to another womb. It reflects the level and extent of science and medical
knowledge of ancient Indians.

Another popular story is that which is related to the birth of Kartikeya also
called as Subramanya Swamy. Lord Kartikeya is the Commander of the army of the
Gods30 and he is also considered as the God of fertility by tradition 31. He is the son of
Lord Shiva, the father of universe and Goddess Parvati, the mother of universe. It is
said that at the request of Gods for a person for the post of their army commander,
Shiva gives a bija to be implanted in Mother Ganga 32. In the modern times the bija
can be considered as the genetic material of the father and because it is implanted in
the river Goddess Ganga, she can be considered as a surrogate. However after
sometime it becomes unbearable for the surrogate mother Ganga to carry the
embryo 33. She makes a miscarriage. Then the God of fire Agni keeps the embryo on
Saravana (A kind of grass believed to have the potential of nectar) and which may be
considered as modern day incubator. The Sapta matrakas who can be considered as
the nurses or care takers fed the child. Thus the God Kartikeya is born 34 . This
incidence can also be considered as a form of surrogacy in which initially the womb
of a woman is used for conception of the foetus and later on the foetus is developed in
incubator due to the inability of the surrogate mother to carry the foetus to the full
term. At the same time this incidence also points out the various problems which may

28
Raghav Sharma, ―An International, Moral & Legal Perspective: The Call for Legalization of
Surrogacy in India‖, (working paper, on file with Nat‘l Law Univ., Jodhpur), available at
<http://ssrn.com/abstract=997923- > Visited on 10.5.2011.
29
Supra n.27.
30
Bharadvaja Sarma, Vyasa’s Mahabharatam, Academic Publishers, Kolkata (2008), p.299.
31
Basavaraj Naikar, Indian English Literature, Atlantic Publiishers and Dsitributers, New Delhi
(2003), p.23.
32
Dr. B. R. Kishore, Lord Shiva, Diamond Pocket Books Pvt. Ltd., New Delhi (2001), p.23.
33
See, ―Murugan‖, available at <http://en.wikipedia.org/wiki/Murugan> Visited on 20.9.2012.
34
Ibid.
 P a g e | 86

arise during a surrogacy procedure like inability of surrogate mother to carry foetus to
full term, or a situation where surrogate mother wants to terminate her pregnancy
before the full term. Thus the ancient Indian mythology offers a solution to the
present day conflicts which may arise between the surrogate mother and
commissioning parents.

Another well known story is that of the birth of Kauravas. According to the
Mahabharata, Queen Gandhari (the wife of King Dhritarashtra) suffered a
miscarriage. The embryo was split into one hundred pieces by the sages (doctors of
the day) and implanted in one hundred Kumbhas and subsequently hundred children
were born. Some of the historians argue that these Kumbhas are equivalent to the
present day anonymous surrogate women35. Thus it can be said that the glimpses of
modern developments in surrogacy can be traced to the ancient mythology.

3.2.3 Development of Modern Surrogacy

The history of modern surrogacy methods can be traced back to 1899. It is to be

noted that the various practices, customs and traditions followed by different
communities all over the world have had a great impact on the development of
surrogacy as a form of Assisted Human Conception. The practices followed by
American Indians36 can be considered as the beginning point of modern surrogacy
methods. If a woman of American Indian tribe was found to be infertile, she would be
sent to the medicine man. If even after his treatment, the woman was not able to
conceive, the chief of the tribe had the power to grant liberty to her husband to take
another woman and to have a child with that woman. Likewise, in recent European
history, especially in Spain, it was common for the kings to take in several women for
begetting a male child 37. Modern historians may criticize this practice as adultery or

35
Nigam, M., Nigam, R., Chaturvedi, R., and Jain, A., ―Ethical and Legal Aspects of Artificial
Reproductive Techniques including Surrogacy‖, in Anil Aggrawal’s Internet Journal of Forensic
Medicine and Toxicology, Vol. 12, No. 1 (January - June 2011); See also, Dr. Mrs. Pratibha Ganesh
Chavan, ―Psychological and Legal Aspects of Surrogate Motherhood‖, available at
<www.allindiareporter.in> Visited on 10.5.2011.
36
American Indian may refer to, Native Americans in the United States or Indigenous people of the
America.
37
See, Ashley Kate, ‖History of Surrogate Motherhood‖, available at <http://ezinearticles.com/ 24583
6 9 > Visited on 10.5.2011.
 P a g e | 87

polygamy, but it is to be noted that this practice was followed only for begetting a
biological child and some similarity can be drawn with modern surrogacy38. It can be
seen that in these practices there is no use of technology.

The development of science and technology in the medical field gave rise to the
modern surrogacy methods, which involves integration of science and technology
with natural process of human conception. The successful birth of Louise Brown with
the help of in-vitro fertilization in 1978 in England confirmed the thinking of the
scientists and medical experts that a woman other than the genetic mother could be
used to carry the foetus and deliver it 39.

In 1979, Dr. Richard Levin, gave suggestion to an infertile couple to use a

woman as a donor as well as to carry the resulting foetus and deliver the child. Dr.
Richard Levin examined in detail the pros and cons of the issue as well as the various
social, ethical, religious and legal issues. As a result, the couple reached an agreement
with a woman to act as a donor and surrogate mother. The surrogate mother was
artificially inseminated in the early 1980‘s and she conceived within the first month.
She gave birth to a baby boy after nine months and handed over the baby to the
couple. The right of the surrogate mother as a legal guardian was terminated and
guardianship was handed over to the biological father through a legal process40. The
pseudonym of the surrogate woman involved in this case was Elizabeth Kane, who
agreed to give birth as a traditional surrogate mother for a financial compensation of
$10,000 41 . This type of surrogacy arrangement is now popularly known as
commercial surrogacy. Thus this case is considered to be the world‘s first case of
planned surrogacy.

38
For example it is similar to present day traditional surrogacy. Traditional surrogacy means that, the
surrogate mother contributes genetic material to the resulting child and gives birth to it as her own
child.
39
For more details about the birth of Lousie Brown, See, ―Surrogate Motherhood‖, available at
<http://www.mother-surrogate.net/eng/> Visited on 10.5.2011.
40
Ivory, ―The History of Surrogacy‖, available at <surrogatemother.com> Visited on 10.5.2011; Also
See, ―Surrogacy‖, available at <http://researchkathy.blogspot.com> Visited on 10.5.2011.
41
See, ―The History of Surrogacy‖, available at <www.ferttilityproregistry.com> Visited on 10.5.2011.
 P a g e | 88

In 1983, a menopausal woman at Monash University in Melbourne, Australia

became the first woman to give birth to a baby by using donated eggs. It is to be
noted that though this case is not a surrogate pregnancy, it is however a remarkable
event which made the practice of gestational surrogacy possible. The year 1986 can
be considered as a milestone in the history of surrogacy. In 1986 the world‘s first
gestational surrogate pregnancy took place in USA. In this case the surrogate mother
carried the biological child of a woman who had undergone an hysterectomy42 and
therefore was unable to carry a child. The identities of the couple and that of the
surrogate mother were not disclosed. However Noel Keane, the lawyer who
represented the couple said that surrogate mother was a 23 year old girl and she
received $10,000 for her service43.

The use of surrogacy as a procedure for procuring a biological child slowly

gained acceptance. Generally, surrogacy practices were carried out in secret.
However, the Baby M Case44, due to its peculiar nature brought surrogacy within the
knowledge of public. In this case Mary Beth Whitehead gave birth to Melissa Stern as
a traditional surrogate mother in 1986. However after the birth of the child, Mary
Beth changed her mind and instead of handing over the child to the intended parents,
she decided to keep the baby herself. As a result there was a two year legal battle with
Melissa‘s biological father, Bill Stern, and intended mother, Betsy Stern, over
custody. Finally, the Sterns were successful in getting custody of the child and Mary
Beth was given a right of visitation 45 . This highly publicized case highlights the
various conflicting legal and human rights issues involved in surrogacy and the need
for a legal frame work for its regulation and control.

Along with the further developments in the field of surrogacy, there has been
unprecedented increase in instances of application of surrogacy for procuring a
biological child. One such instance is that of Teresa Anderson, a 54 year old woman

42
Hysterectomy is a surgery to remove a woman‘s uterus or womb. See for more, ―Hysterectomy Fact
Sheet”, available at <www.womenshealth.gov>Publications> Visited on 10.5.2011.
43
See, ―Surrogate has Baby Conceived in Laboratory‖, available at <http://www.nytimes.com/
1986/04/17/html> Visited on 10.5.2011.
44
In re Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 02/03/1988).
45
Ibid.
 P a g e | 89

who gave birth to five boys as a gestational surrogate mother in 2005 for a couple she
had met online. In August 2007, 58 year old Ann Stopler gave birth to her twin
granddaughters. Her daughter, Caryn Chomsky, was unable to conceive due to
cervical cancer. Another incidence is that of 56 year old Jaci Dalenberg who became
the oldest woman ever to give birth to triplets in 2008. She acted as a gestational
surrogate mother for her daughter Kim, and delivered her own grandchildren. One of
the landmark events in the history of surrogacy is that of a surrogate woman who
gave birth to her own grandchild at the age of 61 years. This event took place in Japan
in 200846.

In India, the first gestational surrogacy took place in 1994 in Chennai 47. In
1997, the first commercial surrogacy was reported in India. A woman from
Chandigarh agreed to carry a child for 50,000 rupees in order to obtain medical
treatment for her paralyzed husband 48. Further in 1999, an Indian newspaper reported
the story of a village woman in Gujarat who served as a surrogate for a German
couple49. It is estimated that, in India, the number of births through surrogacy has
doubled between 2003-200650, and estimates range from 100-290 each year 51 to as
many as 3,000 in the last decade52.

46
See, ―History of Surrogacy‖, available at <www.information-on- surrogacy.com> Visited on 10.
5.2011.
47
See, Geeta Padmanabhan, ―Hope in the Test Tube‖, The Hindu, January 19, 2006, available at
<http://www.thehindu.com/thehindu/mp/2006/01/19/stories/2006011900540200.htm> Visited on
10.5.2011.
48
Sandhya Srinivasan, ―Surrogacy Comes Out of the Closet‖, Sunday Times of India, July, 6, 1997, at
p.1.
49
Jyotsna Agnihotri Gupta, ―Towards Transnational Feminisms: Some Reflections and Concerns in
Relation to the Globalization of Reproductive Technologies‖, 13 Eur. J. Women’s Stud. 23 (2006), at
p.30.
50
Sudha Ramachandran, ―India‘s New Outsourcing Business – Wombs‖, Asia Times Online, June 16,
2006, available at <http://www.atimes.com/atimes/south_asia/hf16df03.html> Visited on 10.5. 2011.
51
See, Krittivas Mukherjee, ―Rent-a-Womb in India Fuels Surrogate Motherhood Debate‖, Reuters,
Feb. 12, 2007, available at <www.retuers.com/article/latestCrisis/idUSDEL298735>; See also, Alifiya
Khan, ―Surrogacy is Soaring in India‖, Hindustan Times, Sept. 18, 2008, available at
http://www.hindustantimes.com/StoryPage/> Visited on 10.5.2011.
52
See for more, Neeta Lal, ―A Labour of Love‖, Khaleej Times, Feb. 29, 2008, available at <http://
www.khaleejtimes.com/DisplayArticle.asp?xfile=data/weekend/2008/Febr>Visited on 10.5.2011.
 P a g e | 90

3.3 Types of Surrogacy

Surrogacy is considered as a very sensitive and emotional issue which has far
reaching impact on all the parties involved in it. Due to the delicate nature of
surrogacy, it is vitally important that in order to be a successful procedure, all the
parties are comfortable and confident with one another. There are various
arrangements which are possible in surrogacy depending upon the suitability and
convenience of the parties. This has given rise to various forms of surrogacy. Each
surrogacy arrangement is unique, and the parties have the choice to select from
several types of surrogacy, the one that is best and convenient to them53.

Surrogacy can be classified into different types on the basis of the type of
agreement entered into, financial transactions and relationships involved and on the
basis of the use of genetic material. One of the basic classifications of surrogacy is
based on the nature of the agreement entered into by the parties. Thus surrogacy can
be classified as formal or informal surrogacy. Formal surrogacy arrangements are
those in which the nature and terms of the agreement between the surrogate and the
commissioning couple are clearly specified, and are generally in writing. These
arrangements are otherwise described as ‗contractual surrogacy‘. This term denotes
the potential legal enforceability of such agreements by a court of law. Informal
surrogacy arrangements are ‗non-contractual‘ and lack the legal requirements of an
enforceable contract, in that they are often vague and uncertain. In practice, they are
generally difficult to detect and control54.

Surrogacy can again be classified into two types i.e. commercial surrogacy and
altruistic surrogacy depending upon the financial transactions and relationships
involved between the surrogate mother and commissioning parents. Commercial
surrogacy refers to arrangements which include payment of money or other benefits
to the surrogate mother and, in some cases, her agents. Altruistic surrogacy refers to
less formal arrangements between friends and relatives which involve no financial

53
Faith Merino, Adoption and Surrogate Pregnancy, Infobase Publishing, U.S.A. (2010), p.20.
54
See, Jody S. Kraus & Robert E. Scott, ―Contract Design and the Structure of Contractual Intent‖, 84
New York University Law Review, 1023 (2009).
 P a g e | 91

reward for the surrogate mother. However, the distinction between commercial and
altruistic surrogacy can be blurred because altruistic surrogacy may still involve
payment of medical and ‗out of pocket‘ expenses. According to Meggitt, every
woman involved in surrogacy is motivated by altruism, although some are paid 55.
Further, it is argued that money alone is insufficient to motivate a woman to become a
mother in a surrogacy arrangement, and paid surrogacy just ―perverts woman‘s
altruism‖. The procedure of surrogacy involves the use of genetic material of the
intended father or mother or surrogate mother and hence depending upon such use the
surrogacy can be classified into two main types such as Traditional and Gestational
Surrogacy.

3.3.1 Traditional Surrogacy or Partial Surrogacy

Traditional surrogacy is the most widely used method of surrogate pregnancy,

as well as the most historically prevalent. Before the era of assisted reproductive
technology and IVF, traditional surrogacy was the only form of surrogacy available.
However this method was used in the ancient cultures and communities without the
application of technology. The husband of the infertile woman would have access to
another woman and after the birth of the child, the woman would hand over the child
to the husband and his wife. The modern science and technology has made it possible
for procuring a biological child with the help of another woman without sexual
intercourse. In this process the woman is artificially inseminated with the semen of
the husband of the ‗genetic couple‘. Because it is her own egg that is being fertilized,
the surrogate mother is genetically related to the foetus that she conceives. Therefore,
any resulting child is genetically related to the male partner of the ‗commissioning
couple‘ but not the female partner 56. Thus it is also known as partial surrogacy or

55
Meggitt, ―Lessons to be Learnt in Parallels Between Adoption and Surrogacy‖, Policy Issues Forum,
(1991), p. 12, available at <210.8.42.131/documents/explore/ResearchPublications/.pdf> Visited on
10.5.2011.
56
Peter Brinsden, ―Clinical Aspects of IVF Surrogacy‖, in Rachel Cook, Shelley Day Sclater &
Felicity Kaganas, (eds.), Surrogate Motherhood: International Perspectives, Hart Publishing, U.K.
(2003), p.101.
 P a g e | 92

natural surrogacy, as the surrogate mother contributes genetic material to the

resulting child and gives birth to it as her own child 57.

Typically, insemination is performed by a doctor within a clinical setting,

although some centers may perform it in the surrogate‘s homes based on the belief
that the surrogate‘s comfort level should be respected. During this time, the surrogate
mother agrees to refrain from sexual intercourse with any man, including her husband
if she is married, from the point of signing the contract until a pregnancy is confirmed
and the entire process which can take up to an year. Since the surrogate mother will
be the genetic mother of the child conceived, traditional surrogacy presents a unique
opportunity for contracting couples to choose the genetic heritage of their child—an
opportunity that is not afforded to adoptive parents. Often, this means contracting
couples can specify phenotypic characteristics that they desire in a surrogate mother
and can screen for undesirable traits, such as a genetic history of mental illness or
disease. Many couples also look for a surrogate that resembles either of them58.

When a surrogate is selected, she will be medically evaluated and tested for
HIV as well as other venereal diseases. In some cases, the surrogate‘s husband is also
tested for such diseases. When the surrogate has met contractual requirements for
physical and mental fitness, she will be inseminated when fertile. Traditional
surrogacy or partial surrogacy, though complicated by ethical uncertainty over the
relationship between biological relatedness and kinship bonds, remains the most
popular form of surrogacy in the world due to its high success rates and its low fees 59.

3.3.2 Gestational Surrogacy or Total Surrogacy

Gestational surrogacy is preferred by couples who desire a biological

connection to their child, assuming the husband and/or wife have viable gametes.
Gestational surrogacy, is defined as the treatment in which the gametes of the ‗genetic
couple‘, ‗commissioning couple‘ or ‗intended parents‘ are used to produce embryos

57
Supra n.24.
58
Supra n.53 at p.17.
59
Id. at pp.17-18.
 P a g e | 93

by the process of in vitro fertilization (IVF). These embryos are subsequently

transferred to a woman who has agreed to act as a host for these embryos. In this
case, the ‗surrogate host‘ is therefore genetically unrelated to any child that may be
born as a result of this arrangement 60. Thus it is also known as total surrogacy or full
surrogacy because the foreign genetic material is implanted into a woman who
gestates the child for another couple who are the genetic parents61.

In most cases, the contracting couple supplies the ova and sperm, which means
the child conceived will be biologically related to them. However, in the event that
one or both members of the contracting couple do not have viable gametes, the
process may require donor eggs or sperm. Thus, in a gestational surrogacy, minimum
three adults62, in some cases four63 and in extreme cases five adults64 may be involved
in the conception of a child 65 . Due to the lower success rates and the number of
individuals involved, gestational surrogacy is often more expensive than traditional
surrogacy. In an interview, Helena Ragone 66 , a Director of one surrogacy center,
referred to gestational surrogacy and IVF procedures as a ―rip-off that simply
prolongs the couple‘s infertility while charging them outrageous sums of money per
attempt67‖. According to the U.S. Department of Health and Human Services (HHS),
in 200468 the success rate per cycle at the average fertility clinic was 33.7 percent, by
using non-frozen, non-donor eggs and embryos69.

It is to be noted that there are only two major forms of surrogacy all over the
world, i.e. Traditional Surrogacy and Gestational Surrogacy. Both these forms of
surrogacy have their own merits and demerits due to the differences in the procedure

60
Supra n.56.
61
Supra n.24.
62
i.e. Surrogate, Intended Father and Intended Mother.
63
i.e. Surrogate, Intended Father and Intended Mother, Egg or Sperm Donor.
64
i.e. Surrogate, Intended Father and Intended Mother, Egg and Sperm Donor.
65
Supra n. 53 at p.18.
66
An Anthropologist and the author of Surrogate Motherhood: Conception in the Heart, Westview
Press, U.S.A. (1994).
67
Id. at p. 33.
68
U.S. Department of Health and Human Services, Centers for Disease Control and Prevention,
―Assisted Reproduction Technology Success Rates: National Summary and Fertility Clinic Reports‖,
(2004), available at <http://ftp.cdc.gov/pub/Publications/ art/2004ART508.pdf.> Visited on 6.8.2010.
69
Supra n. 53 at pp.18-19.
 P a g e | 94

involved and the expenses incurred. Regarding the acceptability of these two forms of
surrogacy there are divergent opinions all over the world. In some countries, such as
India, traditional surrogacy is considered highly a taboo, while in others, such as
China, traditional surrogacy is the only legal surrogacy arrangement 70 . In certain
countries like Israel and Ukraine, both the forms of surrogacy are allowed 71 .
Depending upon the type of surrogacy used, the methods of surrogate parenting may
also differ.

3.4 Methods of Surrogate Parenting

There are mainly three methods of surrogate parenting. The first method is the
artificial insemination method which is the traditional method and includes three
steps. In the first step, the surrogate mother is artificially inseminated with the
biological father‘s sperm. In the second step, the surrogate mother carries the foetus
in her uterus for nine months and gives birth to the child. Lastly, the surrogate mother
terminates all parental rights over the child and gives it to the biological or adopting
father for his custody or adoption. This procedure is commonly known as traditional
surrogacy72. This method is normally used in cases where the wife is infertile and the
husband is fertile.

The second method of surrogate parenting is in-vitro fertilization. It involves

the following five steps. Firstly, a fertile couple desiring a child gives an egg and
semen to a doctor. Secondly, the doctor fertilizes the egg with the sperm in that
semen through in-vitro fertilization. Thirdly, the fertilized egg is implanted in the
surrogate mother‘s uterus. Fourthly, the surrogate mother carries the foetus in her
uterus for nine months and gives birth to the child. Lastly, the surrogate mother
terminates all parental rights over the child and gives it to the couple who donated the
egg and semen. This method is used when the wife has an abnormality in her
reproductive organs that prevents her egg from being fertilized by her husband‘s

70
Id. at pp.17-18.
71
Svitnev K ., ―Legal Control of Surrogacy – International Perspectives‖, in Joseph G. Schenker,
Ethical Dilemmas in Assisted Reproductive Technologies, Walter de Gruyter GmbH & Co., Berlin
(2011), p.162.
72
See for more, Katharina Boele-Woelki, Perspectives for the Unification and Harmonization of
Family Law in Europe, Intersentia, Oxford, U.K. (2003), p.414.
 P a g e | 95

sperm or when the wife is unable to carry a child to term because she has an
abnormality in her uterus. If the wife is able to conceive, but unable to carry the
gestating foetus, the embryo transfer methods allow transfer of the naturally fertilized
egg from the biological mother‘s womb to the surrogate mother‘s womb. This method
is known as gestational surrogacy73.

The third method of surrogate parenting is a modification of the in-vitro

fertilization method and known as donor surrogacy, which involves five steps. The
first four steps are identical to that of in-vitro fertilization method. The fifth step,
however, differs. Instead of giving the child to the couple who donated the semen and
egg, the surrogate mother gives the child to adoptive parents who are not biologically
related to the child. There have been no reported incidents of the use of this method,
but the method could be utilized in a situation in which both the husband and wife are
infertile but wish to have a child with specific traits74.

Although the above-mentioned three methods of surrogate parenting involve

different medical techniques, and although the biological relationship of the couple
receiving custody of the child may vary depending upon the method used, the legal
consequences of contracting to perform each method are surprisingly similar. The
methods are treated very much the same because most countries presume that the
woman who gives birth to a child is the natural, biological mother of the child 75.
Thus, depending on the infertility problem involved, either Artificial Insemination or
IVF may be used in a surrogacy situation76.

For surrogacy to be successful, three conditions are to be satisfied. Firstly, the

parties to the surrogacy process must be able to arrange for the conception and birth
of a child. Secondly, before actually doing so, the parties must reach an agreement
defining what their respective rights and duties will be, both before and after the child

73
Lewis Vaughn, Bioethics: Principles, Issues, and Cases, Oxford University Press, U.K. (2012),
pp.355-57.
74
Timothy F. Murphy, ―Selecting the Traits of Children Prior to Birth‖, Virtual Mentor, Vol.14, No.2,
158-161 (February 2012).
75
Supra n.17.
76
Supra n.6.
 P a g e | 96

is born. Thirdly, the parties must have some means by which they can enforce these
rights and duties so as to ensure performance.

To begin this process, a married couple identifies and contacts with a woman
who is willing to act as a surrogate mother for their child. This may be as simple as
convincing a family member, such as the wife‘s sister, or mother-in-law, husband‘s
sister or a friend to undertake the responsibility. Increasingly, however, it is more
common for a couple to hire a lawyer or private agency that specializes in locating
and screening a woman who would be willing to serve as a surrogate.

The parties thereafter negotiate on the terms of their relationship. It may be an

informal verbal agreement in which the surrogate agrees to serve gratuitously. More
often, however a lawyer drafts a written contract in which the couple agrees to pay for
the surrogate‘s medical expenses during pregnancy. Usually, though not always, the
couple will also agree to pay the surrogate a fee for carrying the child. For her part,
the surrogate generally agrees to be inseminated, to not abort the child, to seek and
accept adequate medical care, and most importantly, to terminate her parental rights
upon the birth of the child.

If the surrogate woman is successful in conceiving a child and carrying it to

term, the contracting husband will, upon birth, acknowledge his legal paternity of the
child. The surrogate then relinquishes all her parental rights over the child, after
which the couple pays her. The contracting husband, as the legal father, obtains
custody of the child, and the wife as stepmother, may initiate an adoption action in
order to declare herself as the child‘s legal mother77.

In practice, a surrogate mother typically receives a fee or honorarium from the

sperm donor for her services. Ordinarily, the donor also pays for all the expenses of
the procedure. There can be many variations in the terms of surrogate parenting
agreements (the enforceability of which have been discussed in Chapter VI), but they
center on a promise that the surrogate-mother will relinquish the child to the

77
Thomas S. Bradley, ―Prohibiting Payments to Surrogate Mothers: Lovers Labour Lost and the
Constitutional Right of Privacy‖, 20 J. Marshall L. Rev. 715 (1986-1987), at p.718.
 P a g e | 97

biological father or mother immediately after birth, renouncing all rights over the
child and/or consenting to adoption. Other common provisions provide for genetic
screening, medical and psychiatric evaluation, cooperation with medical directions
during pregnancy, submission to amniocentesis if medically appropriate, or
abstention from alcohol or other possible teratogens during pregnancy. Some persons
or organizations providing surrogate mother intermediary services prefer to use
married women who have had at least one healthy child. Such a requirement
necessitates additional contractual provisions ensuring that the surrogate‘s husband
will relinquish any rights he may have in the child and that adequate blood testing
will be performed to confirm that the sperm donor is the biological father 78.

Thus there are various methods of surrogate parenting depending upon the type
of surrogacy involved. The couples or individuals can select the types of surrogacy as
well as method of surrogate parenting depending upon their needs and convenience. It
is to be noted that when compared to adoption as well as any other method of ART,
the method of surrogacy offers various advantages to the couples or individuals who
wish to beget a child.

3.5 Surrogacy vs. Other forms of ART

Procreation as discussed earlier is a fundamental human drive. The image of

happy parents holding a healthy baby pervades the human mind and the society79.
Hence the greatest motivation to use surrogacy is that it will help a couple to have a
genetically related child. Thus a surrogacy arrangement is a boon to childless couples
as it gives them the greatest gift of life, i.e. a child. It is pertinent to point out here that
the impact of childlessness on married couples is very grave. Surrogacy thus provides
an opportunity to such couples to beget a child and gives them satisfaction and
happiness. The major benefits of surrogacy when compared to other forms of ART
can be classified as follows:

78
Supra n.19 at p.467.
79
Michelle Sargent, ―Regulating Egg Donation: A Comparative Analysis of Reproductive
Technologies in the United States and United Kingdom‖, Michigan Journal of Public Affairs, Vol. 4, 1
(2007).
 P a g e | 98

i) Genetic Link

The most important benefit of surrogacy is that it helps the couple to beget a
child genetically related to at least one of the parent. Thus it helps to fulfill the natural
instinct and desire to have a biological child. The urge to procreate, usually involves a
desire to transmit one‘s own genetic heritage to the child and to participate in
gestation and parturition80. Thus it offers greater advantage to childless couples as
compared to the traditional option of adoption.

ii) Prevention of Hereditary Diseases

The second major advantage of surrogacy is that by using this method an

individual can prevent transmission of hereditary diseases to his biological child. The
individuals who have a history of genetic illness or who have given birth to children
with genetic diseases can with the help of genetic screening find out whether they
might transfer a harmful trait to their offspring. In cases where the individuals are
likely to transmit the harmful traits to their offspring, they may prevent such
transmission by selecting a surrogate mother and using genetic material from a male
donor or female donor as required.

iii) To Overcome Medical Risks

Surrogacy is the only option available to couples who are fertile but unable to
beget a child due to risk factors involved in pregnancy. It is to be noted that some
pregnancies involve high risks due to medical problems of the mother and could pose
serious complications of premature births leading to deformities in the child or
sometimes, such pregnancies may cause danger either to the life of the mother or
child, or both81. So also in case of women suffering from AIDS, conceiving a child
may be risky and is also dangerous to the future child. 82 In these circumstances
surrogacy is the best option available for the couple to beget a child. Likewise, it is

80
John A. Robertson, ―Procreative Liberty and the Control of Conception, Pregnancy and Childbirth‖,
69 Virginia Law Review, 3, 405 (1983).
81
See, Martha A. Field, Surrogate Motherhood: The Legal and Human Issues, Harvard University
Press, U.S.A. (1990), p.31.
82
See generally, Lawrence O. Gostin, ―A Civil Liberties Analysis of Surrogacy Arrangements‖, 16 L.
Med. & Health Care 7-17 (1988), at p.9.
 P a g e | 99

also the best option in case of a woman having a disability such that it is difficult to
carry a child or in cases where woman is suffering from allergic reactions 83 .
Surrogacy also offers hope to those couples who have crossed their age of natural
conception84 and those who have undergone tubecctomy85 or vasectomy86.

iv) To satisfy the desire of Single, Divorced, Lesbians and Gay couples, etc.

Surrogacy arrangements make possible the creation of non-traditional families.

In modern times even single men and women, gays and lesbians couples may wish to
beget and raise a child. The process of procreation involves the union of both male
and female. But in cases of lesbian and gay couples as well as transgender couples,
due to inherent biological reasons, they are unable to procreate naturally. So also
single women/men, a divorced individual or in cases where one of the spouses has
expired are also deprived of their right to procreate due to their societal conditions. In
these situations surrogacy can be very useful to help these individuals to satisfy their
natural craving for a child.

v) An option for individuals/couples with modern life style

Surrogacy can be used for begetting a child by those couples and individuals
who are fertile and able to carry a child, but are unwilling to do so due to various
reasons. The reasons can be their life style, career prospects, and profession 87.

(vi) To avoid problems related to infertility treatments

Surrogacy is not a treatment for infertility but it is an arrangement for begetting

a child. Hence it can avoid the physical and mental sufferings caused to infertile
couples due to the prolonged and sometimes unsuccessful infertility treatments.

83
Ibid.
84
Peter R. Brinsden, ―Surrogacy‖ in Peter R. Brinsden (ed.), Textbook of In - Vitro Fertilization and
Assisted Reproduction, Taylor & Francis Publication, U. K. (3rd edn. – 2005), p.394.
85
Tubecctomy is surgical procedure for permanent contraception to prevent future pregnancies in
women.
86
Vasectomy is a surgical procedure for male sterilization and/or birth control.
87
M. Humphrey, Families with a Difference: Varieties of Surrogate Parenthood, Routledge, U.S.A.
(1988), p.157.
 P a g e | 100

Thus the method of surrogacy offers new ways for infertile and other
individuals/couples to become parents. It facilitates the pursuit of biological
parenthood and in many cases where couples/individuals have opted for surrogacy, it
has brought enormous joy into their lives by helping them to beget a child which they
never thought that they would have. It might be thought that such a miraculous
procedure which creates new life and produces such happiness would be accepted by
all without any objections. But it is not so. The practice of surrogacy is criticized and
objected on various legal, ethical and social issues that pose severe challenges to the
legal systems88.

3.6 Surrogacy: Legal and Ethical Debates

Surrogacy has proved to be a boon for infertile couples. At the same time the
increasing use of this technology has also led to various controversies and conflicting
legal issues. These conflicts have at times erupted into a fierce debate over the
legality of surrogacy. A discussion on this debate is necessary in order to understand
the arguments underlying surrogacy. Further, since the controversy surrounding
surrogacy, has been brought to limelight by the leading surrogacy cases all over the
world as well as arguments made by legal scholars and commentators, such a
discussion is important in determining how surrogacy should be dealt with by the
legal systems in different countries in future 89 . Most of the criticisms against
surrogacy are based on various ethical, moral, religious and legal grounds.
Admittedly, the influence of ethics, morality and religious practices cannot be ruled
out in a legal discussion, as the ethics and morality have played an important role in
shaping the societies attitude towards legal issues as well as the foundation of most of
the legal systems of the world.

The moral, ethical and religious objections to surrogacy are based on the
premise that life is a creation of God and human beings should not attempt to play
God by interfering in the natural processes. Another serious objection in this regard is

88
Anonymous, ―Developments –Medical Technology and the Law‖, 103 Harvard Law Review 1519
(1990), at p.1556.
89
Supra n.11 at pp.119-120.
 P a g e | 101

the fact that surrogacy procedure involves repeated trials which use either male or
female genetic material or the human embryo. The wastage of human embryo is
criticized as similar to murder, because according to some scholars human life begins
at fertilization.

The major legal objection to surrogacy strikes at the very root of the procedure
of surrogacy which is due to the need and requirement of a woman to act as a
surrogate. Various scholars have criticized surrogate motherhood, as it presents
intolerable risks to women, including physical risks, psychological risks, and
symbolic risks such as objectification and commodification. Carl Schneider points out
that ―some surrogate mothers will become sick or even die‖ 90. Some commentators
assert that the chances that the surrogate will be psychologically harmed by the
process are very high, analogizing it to the psychological harms felt by birth mothers
giving children up for adoption. Some surrogates do regret their decision to bear a
child for another couple, as is evidenced by their decision to try to keep the child 91.

Further many critics of surrogacy have focused on the notion that these
arrangements reduce women to the value of their wombs. Such a warning was given
by both the Royal Commission and the Quebec Council for the Status of Women in
Canada, which suggested that reproductive technologies risk fragmenting the
reproductive process and alienating women from their own reproductive capacities 92.
This is because the procedure of surrogacy separates motherhood as gestational,
genetic and intended motherhood. Moreover, once a woman has agreed to be a
surrogate mother, she has to follow all the terms and conditions of the contract during
the entire process and more importantly she has to relinquish all her rights over the
child after its birth. It is claimed that the entire process of reproduction is an inherent
part of a women‘s existence and that transferring a child to someone else upon its

90
See Carl E. Schneider, ―Surrogate Motherhood from the Perspective of Family Law‖, 13 Harv. L.J
& Pub. Pol’y, 125 (1990), at p. 125.
91
See, Scott B. Rae, ―Parental Rights and the Definition of Motherhood in Surrogate Motherhood‖, 3
S. Cal. Rev. L & Women’s Stud. 219 (1994), at p.242.
92
Rakhi Ruparelia, ―Giving Away the ‗Gift of Life‘: Surrogacy and the Canadian Assisted Human
Reproduction Act‖, 23 Canadian Journal of Family Law, 11 (2007), at p.26.
 P a g e | 102

birth is unnatural and psychologically damaging 93.

The symbolic harm posed by surrogacy to society is that surrogacy may be

characterized as baby selling, a practice that is totally against a civilized society.
Some scholars argue that surrogacy treats children as commodities that can be bought
or sold for a price. Others contend that surrogacy should be prohibited for the same
reasons that the sale of organs for transplantation is prohibited 94. It is also argued that
agreeing to participate in a surrogacy process is equivalent to prostitution 95 or
adultery96 or slavery97. Further it is argued that surrogacy will degrade the inherent
human dignity of a woman.

A similar argument has been made that surrogacy should be banned because of
the potential physical, psychological, and symbolic risks to the resulting children. It
has been asserted that a surrogate, who will be carrying a child, that she will not later
rear, will lie about her health or will not take proper care during pregnancy because
she will not care about the subsequent condition of the child. In addition to the risks
that the surrogate mother herself may present to the child, commentators arguing
against surrogacy also allege that the child may be harmed by parents who may not
have undergone previous screening with respect to their suitability for parenting 98.
Another major criticism which cannot be ruled out is that a surrogate child may suffer
great psychological harm when the child comes to know about its parentage or
origin99. The critics also point out that the symbolic risk to the child due to surrogacy

93
Ibid.
94
Supra n.6 at p.213.
95
See for more, Jean M. Sera, ―Surrogacy and Prostitution: A Comparative Analysis‖, Journal of
Gender, Social Policy & the Law, Vol. 5, Issue 2, 315 (2011).
96
Michelle Ford, ―The Best of Barry: Barry Student Article: Gestational Surrogacy is not Adultery:
Fighting Against Religious Opposition to Procreate‖, 10 Barry Law Review, 81(2008).
97
See for more, M. R. Patterson, ―Surrogacy and Slavery: The Problematics of Consent in Baby M,
Romance of the Republic, and Puddanhead Wilson‖, American Literary History, Vol. 8, No. 3, 449-
470 (Autumn 1996).
98
Lori B. Andrews, ―Surrogate Motherhood: The Challenge for Feminists‖, 16 Law Medicine &
Health Care 72 (1988), pp.80-81.
99
See, Katherine O‘ Donovan, ―Enforcing the Child‘s Right to Know Her Origins: Contrasting
Approaches Under the Convention on the Rights of the Child and the European Convention on Human
Rights‖, International Journal Law Policy Family 21(2): 137-159 (2007).
 P a g e | 103

is that it may lead to commodification of child 100 and selection of child with certain
desirable traits101.

It is argued further that currently the biggest risk to children in the surrogacy
context comes not from the actions of either set of parents but from the uncertain
status of the law. In cases where surrogacy procedures or contracts are banned, it can
cause the resulting children to be stigmatized as the product of a criminal act. In cases
where surrogate contracts are non- enforceable, it can lead to the child being
subjected to years of litigation to determine who will be considered to be his or her
legal parents102.
In spite of all the arguments and criticisms against surrogacy, it cannot be
denied that it offers a ray of hope to such individuals who have exhausted all possible
means of begetting a child. Thus surrogacy can be considered as one of the best
available means for alleviating both medical and social infertility 103, thereby meeting
the needs of individuals who wish to have a biological child 104.

The supporters of surrogacy argue that that ―if the right of individuals to
procreate naturally by sexual intercourse is a protected right, then begetting a child
with the help of assisted human reproductive technologies including surrogacy should
also be protected‖105. These supporters argue that the ―liberty interests protected by
the Constitution do not change definition because of the presence or absence of
reproductive technology‖106. The supporters of surrogacy also distinguish surrogacy
from baby selling107 and adoption on the basis that a surrogacy contract is entered
before conception and the contracting father or contracting mother or both are often

100
See for more, Anton van Niekerk and Liezl van Zyl, ―The Ethics of Surrogacy: Women‘s
Reproductive Labour, 21 Journal of Medical Ethics, 345-349 (1995).
101
See for more, John A. Robertson, Children of Choice: Freedom and the New Reproductive
Technology, Princeton University Press, U.S.A. (1996).
102
Lori B. Andrews, ―Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood‖,
81 Virginia Law Review, 2343 (November 1995), p. 2359.
103
Supra Chapter II.
104
Supra n. 80 at pp. 418-419.
105
Eric A. Gordon, ―The Aftermath of Johnson v. Calvert: Surrogacy Law Reflects a More Liberal
View of Reproductive Technology‖, 6 St. Thomas Law Review, 191 (1993), at p.200.
106
Supra n.11 at p.121.
107
Comment, ―Womb for Rent: A Call for Pennsylvania Legislation Legalizing and Regulating
Surrogate Parenting Agreements‖, 90 Dickinson Law Review 227 (1985), at p.253.
 P a g e | 104

genetically related to the child 108.

Thus surrogacy is one of the hotly contested technological advancement in

present times having a grave impact over the basic human rights. The various
contentious and conflicting issues raised by surrogacy pose a daunting challenge to
the courts as well as to the legislatures and policy makers. The manner in which these
conflicts will be answered would have a profound effect on the way in which the
society would view the relationship between parent and child. It would ultimately
have far-reaching consequences on the reality of the relationship between parents and
children of the future and the power of the state to regulate that relationship.

3.7 Surrogacy and the Legal Responses in Foreign Countries

The debate generated by surrogacy and the various moral, ethical, religious and
legal issues raised by it have led to the view that there should be some policy or
guidelines for its control and regulation. However there is no consensus of opinion
among the countries of the world with respect to the legal measures to be adopted for
the control and regulation of surrogacy. Different countries have adopted different
guidelines and legislations as per their social, economic, cultural, and religious needs
and legal requirements109.

As an initial response to the regulation of surrogacy, various countries

appointed committees for identifying the multiple issues raised by surrogacy. For
example, the Warnock Committee in United Kingdom110, the Aloni Commission in

108
Irma S. Russell, ―Within the Best Interests of the Child: The Factor of Parental Status in Custody
Disputes Arising From Surrogacy Contracts‖, 27 Journal of Family Law, 596 (1988 /1989).
109
Surrogacy contracts are entirely prohibited in countries such as Austria, Egypt, France, Germany,
Italy, Netherlands, Norway, Spain, Sweden, and Switzerland. The countries such as Canada, Denmark,
Hong Kong, and Great Britain have national laws banning commercial surrogacy. But the countries
like Ukraine and India are providing very favorable conditions for commissioning couples that permit
and encourage surrogacy. For a helpful graphic depiction of the States‘ approach to surrogacy. See,
Susan Markens, Surrogate Motherhood, University of California, California (2007), pp. 28-29, table 2.
110
This Commitee was appointed in United Kingdom in 1982 to inquire into the technologies of in-
vitro fertilisation (IVF) and embryology.
 P a g e | 105

Israel111 , the Ministerial Committee on Assisted Reproductive Technology in New

Zealand112, and the Law Commission of India113 have considered the pros and cons of
surrogacy. The legal disputes that emerged because of the surrogacy practices in
countries all over the world have led to the adoption of laws and regulations for the
control and management of surrogacy in various countries.

3.7.1 Israel

Israel is the first country to adopt a specific legislation for regulation of

surrogacy. The Surrogate Motherhood Agreements Law, 1996 was enacted in Israel
on the basis of the recommendations given by the Aloni Commission 114. Thus Israel
is a pioneer in regulating and facilitating commercial surrogacy agreements. The
Surrogate Motherhood Agreements Law allows only for gestational surrogate
arrangements, thereby implicitly forbidding traditional surrogacy. In addition,
according to the Surrogate Motherhood Agreements Law, the sperm must be from the
intended father.

Further, the Surrogate Motherhood Agreements Law does not give any legal
status to the birth mother upon the child‘s birth. Legal parenthood is delegated to the
intended parents almost immediately. The Surrogate Motherhood Agreements Law
states that, the child shall, from its birth, be in the custody of the intended parents, and
they shall bear towards it all the responsibilities and obligations of a parent to his
child. Delivery of the child by the birth mother into the custody of the intended
parents must be in the presence of a Welfare Officer and must be carried out as soon
as possible after the birth of the child. Within seven days of the child‘s birth, the
intended parents must apply for a parentage order. The parentage order is given to the
intended parents by the court automatically, unless, after having received a report

111
It was appointed in 1994 to investigate the legal, social, ethical, and religious issues implicated in
the use of reproductive technology, and it concluded that there should be no interference in the right of
access of these technologies.
112
It was appointed in 1994 to advice about the practice of Assisted Human Reproduction in New
Zealand.
113
In 2009, the Law Commission of India examined the need for legislation to regulate assisted
reproductive technology clinics as well as rights and obligations of parties to a surrogacy in india.
114
See, Israel Ministry of Justice, Report of The Public-Professional Commission in The Matter of In
Vitro Fertilization, July, (1994).
 P a g e | 106

from the Welfare Officer, the court determines that doing so would endanger the
child‘s welfare. The intended parents are the ―default‖ parents and, in the absence of
extraordinary circumstances, they will be given custody of the child upon its birth and
full rights of parentage shortly thereafter115.

3.7.2 Canada

In Canada, the Assisted Human Reproduction Act was adopted in 2004.

However, it does not explicitly regulate who may or may not enter into a surrogacy
arrangement. It forbids the payment of consideration to a woman to be a surrogate
mother116. This is consistent with the principle, set out in Section 2(f) that ‗trade in
the reproductive capabilities of women and the exploitation of women for commercial
purposes raises health and ethical concerns that justify their prohibition‘. In addition,
the Act forbids the payment to another person to arrange the services of a surrogate
mother117. A surrogate mother may be reimbursed for expenditure incurred in relation
to her surrogacy if a receipt is provided. She may also be reimbursed for loss of work
related income incurred during her pregnancy provided certain conditions are
fulfilled. It is an offence to counsel or induce a female believed to be less than 21
years of age to become a surrogate or to perform any medical procedure to assist such
a person to become a surrogate118.

3.7.3 United Kingdom

In the United Kingdom, the law on surrogacy is found in the Surrogacy

Arrangements Act, 1985 119 and the Human Fertilization and Embryology Act,
1990120. The Surrogacy Arrangements Act applies to surrogacy arrangements whether
or not they are lawful and whether or not they are enforceable 121 . No surrogacy

115
Pamela Laufer-Ukeles, ―Gestation: Work for Hire or the Essence of Motherhood? A Comparative
Legal Analysis‖, 9 Duke Journal of Gender Law and Policy, 91 (Summer 2002), at p.98.
116
See, The Assisted Human Reproduction Act, 2004 (Canada), S. 6(1).
117
Id. S. 6(2).
118
Id. S. 6(4).
119
Hereinafter referred to as SA Act.
120
Hereinafter referred to as HFE Act.
121
See, The Surrogacy Arrangements Act, 1985 (UK) S. 1(9).
 P a g e | 107

arrangement is enforceable by or against any of the persons making it 122. The Act
defines ‗surrogate mother‘ as a woman who carries a child under an arrangement
which was made before she became pregnant; and this arrangement is made with a
view that the child would be handed over to another person or persons who will (so
far as practicable) exercise parental rights 123. Section 2 (1) deals with the subject of
payment. It states that no person shall on a commercial basis initiate or take part in
any negotiations with a view to making a surrogacy arrangement. A person does an
act on a commercial basis if any payment is, or is to be, received. The prohibition
does not, however, apply to the potential surrogate mother or to an intended parent.
The Act reinforces this by stating that ‗payment‘ does not include payment to or for
the benefit of a surrogate mother or prospective surrogate mother 124.

Although the Act does not make explicit what kind of ‗payment‘ may be made
to a surrogate or prospective surrogate mother, some regulation does occur, since any
payment received by her will be assessed when parental or adoption orders are
sought125. The subject of parentage is dealt with in the HFE Act. Section 27 provides
that the woman, who is carrying or has carried a child as a result of placing in her
womb an embryo, or sperm and eggs, is to be treated as the mother of the child. If the
woman is married and her husband consented to the procedure, and the embryo was
not brought about with his sperm, he is treated as the father of the child 126. If the
woman is not married, but she has accessed treatment services jointly with a man and
his sperm was not used, the man is treated as the father of the child 127. Section 30 of
the HFE Act creates a procedure by which the commissioning parents will be treated
as the parents of the child. A court may make a parental order in their favor 128. In

122
Id. S. 1A.
123
Id. S. 1(2).
124
Id. S. 2(2), (3).
125
See, the Human Fertilisation and Embryology Act, 1990 (UK), S.30, which states that no money
(other than expenses approved by the court) must have been paid.
126
Id. S. 28(1).
127
Id. S. 28(3).
128
Generally the court may do so only if the following conditions are satisfied: the commissioning
couple are married; the gametes of the husband or the wife, or both, were used to bring about the;
creation of the embryo; the application to the court is made within six months of the birth of the child;
at the time of the application the child‘s home is with the husband and the wife; at the time of the
making of the order both the husband and wife have attained the age of 18; and the court is satisfied
 P a g e | 108

situations where the Act does not apply (for example, when the commissioning
couple are not married, or when neither of them is genetically related to the child), it
appears that the commissioning couple would have to adopt the child under the
Adoption and Children Act, 2002 (UK)129.

3.7.4 New Zealand

New Zealand has passed legislation in this area in 2004, i.e. the Human
Assisted Reproductive Technology Act. Prior to 2004 there was no legislation on
surrogacy. However there was a ban on surrogacy by the clinics because the ethics
committee had refused to approve the practice of IVF surrogacy involving altruistic
embryo transfer to a relative or friend. The Ministerial Committee in its 1994 report
criticized this decision 130 . This led to the shift in policy of ethics committee and
finally ten years later the Parliament enacted the law allowing surrogacy.

Section 14 of the 2004 Act declares negatively that a ―surrogacy arrangement is

not in itself illegal‖ but then states that it is not enforceable. In this Act, a ―surrogacy
arrangement‖ is one where ―a woman agrees to become pregnant for the purpose of
surrendering custody of a child born as a result of the pregnancy 131‖. This definition is
not restricted to surrogacy using assisted means but also includes arrangements that
rely on natural intercourse and probably includes the Maori practice of ―whangai132‖
where there is an understanding that a child will be handed over to another member of
the family. This becomes rather more important when the remaining provisions are
noted. No one, including the surrogate mother, commissioning couple and an
intermediary arranging a surrogacy, may give or receive valuable consideration. The
Act expressly stipulates that any reasonable and necessary expenses for professional
services, including legal advice, are not caught by the ban on valuable consideration.

that no money or other benefit (other than for expenses reasonably incurred) has been given or
received by the husband or the wife under the surrogacy agreement (although the court may authorize
such a payment), see, John Seymour and Ms Sonia Magri, A.R.T., Surrogacy and Legal Parentage: A
Comparative Legislative Review, Victorian Law Reform Commission, Australia, (2004), pp.44-46.
129
Ibid.
130
See, Department of Justice, Assisted Human Reproduction Navigating Our Future Report of the
Ministerial Committee on Assisted Reproductive Technologies, Wellington (1994), pp.112-114.
131
See, The Human Assisted Reproductive Technology Act, 2004, S. 5.
132
It is an ancient practice similar to adoption. See, Keelan v. Peach [2002] NZFLR 481.
 P a g e | 109

Thus the Act in New Zealand allows not-for-profit surrogacy only. Whangai and do-
it-yourself arrangements that do not involve cash transactions for profit are legal.
Surrogacy through a regular clinic with the usual costs associated with the procedures
is also legal. Anyone, including the surrogate mother, who steps outside these
boundaries, may have committed an offence 133.

3,7.5 Unite States of America

In United States, there is no federal law on surrogacy. But many states have
enacted laws dealing with surrogacy. There are great variations in the approaches
adopted by different states. Some state Acts have provisions prohibiting surrogacy
134
contracts or declaring them void or unenforceable . Others have expressly
authorized and regulate surrogacy agreements 135 . Altruistic, but not commercial,
arrangements may be permitted. Not all states distinguish between traditional and
gestational surrogacy. In states where there is no relevant legislation, there may be
case law on certain aspects of surrogacy, especially on the question of parentage 136.
Thus, state laws on surrogacy are hardly uniform. In an effort to provide such
uniformity, the American Bar Association has drafted the American Bar Association
Model Act Governing Assisted Reproductive Technology 137 . Article 7 of this Act
addresses gestational surrogacy, providing various approaches to the conditions for
the enforceability of gestational agreements. Meanwhile, Article 8 permits
reimbursement of expenses to the surrogate and payment of reasonable compensation.
Further, Article 8 of the Uniform Parentage Act, 2000 addresses gestational
agreements, their validation by court hearing of, and parentage issues.

133
See, Bill Atkin, Regulation of Assisted Human Reproduction: The Recent New Zealand Model in
Comparison with Other Systems, Victoria University of Wellington, New Zealand, p.18, available at
<http://www.law2.byu.edu/isfl/saltlakeconference/papers/isflpdfs/Atkin.pdf> Visited on 13.6.2011.
134
See, the Statutes of States such as Arizona, the District of Columbia, Indiana, Louisiana, Michigan,
Nebraska, New York, North Dakota, and Utah.
135
See, the Statutes of States such as Florida, Nevada, New Hampshire, and Virginia, for example,
have statutorily permitted the enforceability of surrogacy contracts, but not the payment to surrogates.
136
See, Margaret Ryznar, ―International Commercial Surrogacy and Its Parties‖, 43 John Marshall
Law Review, 1009 (2010).
137
See, American Bar Association, American Bar Association Model Act Governing Assisted
Reproductive Technology (2008), available at <http://www.abanet.org/family/committees/art modelact.
pdf.> Visited on 10.5.2011.
 P a g e | 110

3.8 Surrogacy in India and the Legal Response

The popularity of surrogacy as a means for begetting a genetically related child

has increased tremendously all over the world. However facilities offered by the
countries as well as the legal regulations of surrogacy are not uniform everywhere. In
certain countries the cost of surrogacy arrangements is very high while in some
countries the legal regulations are very strict and in others surrogacy practices are
even banned. Therefore, the couples and individuals who wish to beget a child
through surrogacy often search for countries which offer surrogacy at an affordable
cost and with minimum legal complications. In this context, India is considered as the
most favorable nation by foreigners to beget a child through surrogacy. This is
because the cost of surrogacy arrangement in India is very low when compared to
other countries.

The Law Commission of India in its report points out that the surrogacy costs
in India is about $25000 to $30000 which is around 1/3rd of the costs in developed
countries like United States of America138. The Centre for Social Research (CSR)139,
New Delhi in its study report given in the year 2012140, identifies that the fees for
surrogates in India ranges from $2,500 to $7,000 and the total costs for surrogacy
arrangements can be anything between $10,000 and $35,000. Therefore, it is a lot less
than what intended parents pay in the United States, where rates fluctuate between
$59,000 and $80,000 141 . Another statistics shows that, a surrogacy arrangement,
including IVF, costs about $11,000 (approximately Rs. 5,00,000) in India, while in
the United States of America, surrogacy alone, excluding ART charges, costs $15,000
(Rs 6,75,000). Likewise in United Kingdom, an IVF cycle costs about £7,000 (Rs. 5,

138
Law Commission of India, ―Need for Legislation to Regulate Assisted Reproductive Technology
Clinics as well as Rights and Obligations of Parties to a Surrogacy‖, Report No. 228, (August 2009),
p.11.
139
Centre for Social Research is a non-profit, non-governmental organization established in the year
1983 in New Delhi. See for more, the official website of CSR <http://www.csrindia.org> Visited on
10.8.2012.
140
See, Centre for Social Research (CSR), Surrogate Motherhood- Ethical or Commercial, p.3. Report
released in the year 2012, available at <www.women leadership.in/Csr/SurrogacyReport. pdf> Visited
on 10.8.2012.
141
Ibid.
 P a g e | 111

00,000 approx.) and surrogacy costs about £10,000 (Rs. 7, 00,000 approx.)142. The
cost of gestational surrogacy in Canada is approximately $29,600 - $68,500 and the
cost of traditional surrogacy is approximately $19,600 - $ 68,500143. In Russia the
minimum cost for surrogacy arrangement is about $35,000144.

Thus it can be seen that, the cost of surrogacy arrangements in India is very low
when compared to other countries. Further, the regulations that deal with surrogacy
are also minimal 145 and there are no restrictions with respect to who can be the
intended parents. As a result, the unmarried, divorced, aged, gays and lesbians who
may be prohibited in their country to use surrogacy can come to India and fulfill their
dream of begetting a child. Thus the strongest incentive for foreigners to travel to
India is most likely to be the relatively low costs involved in the process coupled with
the limited legal regulations.

In addition to the above mentioned reasons, there are many other reasons also
due to which the foreign couples or individuals come to India for availing the benefits
of surrogacy. Some of the key reasons are that India offers the advantages of well
qualified and experienced doctors, world class private health care providers, English
speaking doctors and staffs to facilitate such process, and more importantly easy
access to surrogate women146 . Moreover the Indians show a great commitment in
handing over the new born to their intended parents immediately after birth and till
now no dispute is reported regarding refusal of surrogate to hand over the baby to the

142
See,Widge A., ―Socio-Cultural Attitudes Towards Infertility and Assisted Reproduction in India‖,
in Vayenna E., Rowe P.J., & Griffin P.D. (eds.), Current Practices and Controversies in Assisted
Reproduction, World Health Organization, Geneva (2002), pp.60-74; Sarojini et al., ―Globalization of
Birth Markets: A Case Study of Assisted Reproductive Technologies in India‖, 7 Globalization and
Health, 27 (2011), at p.31.
143
See, ―Surrogacy in Canada‖ (Webpage), available at <http://www.surrogacy.ca/services/cost-of-
surrogacy.html> Visited on 20.9.2012.
144
See, ―Russia – Low Cost Surrogacy Programme‖, available at <http://www.ivfcostworldwide.
com/russia-low-cost-surrogacy-program.html> Visited on 20.9.2012.
145
Swami M. et al., ―Surrogate Mother: A Legal Aspect‖, A. J. P. T. R. 2(3), 137, (2012), p.146.
146
Sama - Resource Group for Women and Health, Unravelling the Fertility Industry: Challenges and
Strategies for Movement Building International Consultation on Commercial, Economic and Ethical
Aspects of Assisted Reproductive Technologies, SAMA, New Delhi (2010), p.47.
 P a g e | 112

intended parents 147 . So also when compared to foreign women the Indian women
have a more methodical lifestyle and most of them do not indulge in drinking,
smoking, use of drugs and narcotics. Further, the cost of living in India is
economical 148 and the foreign couples or individuals who come to India can also
enjoy visiting world famous tourist destinations 149 and then go back with the baby
once the surrogacy arrangement is over. Lastly, the success rates of surrogacy in India
are also considered as very high150.

Due to all the above said reasons, India has become a favorable destination for
foreign couples who look for a cost-effective surrogacy arrangement and a whole
branch of medical tourism has flourished on the surrogacy practice 151. As a result, the
surrogacy business is well-established in India, with an estimated annual turnover of
half a billion dollars 152 . The exact figures are not available and hard to verify.
However, according to one estimate, India‘s reproductive tourism business is
estimated to be approximately 400 million US dollars a year 153 . As per the CSR
Report, the volume of surrogacy industry is estimated to be around $500 million and
the number of cases of surrogacy is increasing rapidly 154 . Thus the true extent of
surrogacy practice in India is not known, but from the above two reports it is clear
that, the surrogacy industry is fetching revenue from 400-500 million US dollars a
year155.

147
Dr. Kiran Rai, ―Law for Surrogacy: Need of the 21st Century‖, International Journal of Research in
Commerce, Economics & Management, Vol.1, No. 1, 151, (2011).
148
Apoorv Dwivedi, ―Surrogate Mothers and Legal Complexity‖, available at
<www.papers.ssrn.com/sol3/papers.cfm?abstract_id=1612712> Visited on 20.8.2012.
149
Ibid.
150
George Palattiyil, et al., ―Globalization and Cross-Border Reproductive Services: Ethical
Implications of Surrogacy in India for Social Work‖, International Social Work, 53 (5) 686 (2010), at
p.689.
151
Supra n.138 at p.11.
152
See, The draft made by Permanent Bureau of Hague Conference on Private International Law
established by the World Organization for Cross-Border Co-Operation in Civil and Commercial
Matters, Private International Law Issues Surrounding the Status of Children, Including Issues Arising
from International Surrogacy Arrangements, Preliminary Document No. 11, (March 2011) for the
attention of the Council of April 2011 on General Affairs and Policy of the Conference, p.7.
153
Ibid.
154
Supra n.140 at p. 23.
155
For more details on estimates of surrogacy turn-over in India, see, Shyantani Das Gupta & Shamita
Das Gupta, ―Motherhood Jeoparadised: Reproductive Technologies in Indian Communities‖, in Jane
 P a g e | 113

The places like Anand, Surat, Jamnagar, Bhopal and Indore have become the
major centers for surrogacy practices. A large number of couples are travelling to
these places not only from India but also from western countries and from other
countries like Sri Lanka, Pakistan, Bangladesh, Thailand and Singapore to fulfill their
desire for a child 156 . It is estimated that there are more than 600 fertility clinics
established in both rural and urban areas spread over in almost all states of India.
However, the state of Gujarat is particularly popular, especially among westerners 157.
In fact India in general and the state of Gujarat in particular is rapidly becoming the
center for Child Process Outsourcing (CPO)158.

In India, though surrogacy is gaining popularity and is rapidly developing as an

industry, the Government has been very slow in responding to the changing
situations. In the absence of a legislative action, the Indian Council for Medical
Research159 has come up with certain ethical guidelines for regulating assisted human
reproductive technologies in general and it also includes guidelines for surrogacy
practices. In 2000, the ICMR adopted Ethical Guidelines for Biomedical Research on
Human Participants, in which they prescribed certain guidelines to deal with ART in

Maree Maher, The Global Politics of Motherhood: Transformation and Fragmentation, Routledge,
U.S.A. (2010), p.138.
156
Supra n.140 at p.6.
157
Ibid.
158
See generally, J. Brad Reich & Dawn Swink, ―Outsourcing Human Reproduction: Embryos &
Surrogacy Services in the Cyber-Procreation Era‖, 14 J. Health Care L. & Pol’y, 241 (2011); Sharmila
Rudrappa, ―Making India the ‗Mother Destination‘: Outsourcing Labor to Indian Surrogates‖, in
Christine L. Williams & Kirsten Dellinger (eds.), Gender and Sexuality in the Workplace (Research in
the Sociology of Work, Volume 20), Emerald Group Publishing Ltd., United Kingdom (2010), pp.253-
285; Amy Gold , ―Surrogacy in India: The Latest Outsourcing Industry‖, available at <http://blog
critics.org/culture/article/surrogacy-in-india-thlatest- sourcing/> Visited on 20.9.2012.
159
Hereinafter referred to as ICMR. The Indian Council of Medical Research, New Delhi, is the apex
body in India for the formulation, coordination and promotion of biomedical research, and is one of the
oldest research bodies in the world. This was established in the year 1911 by the Government of India
under the title Indian Research Fund Association (IRFA) with the specific objective of sponsoring and
coordinating medical research in the country. After independence, several important changes were
made in the organization and the activities of the IRFA. It was re-designated in 1949 as the Indian
Council of Medical Research. See for more, the official website of ICMR, available at
<http://www.icmr.nic.in/About_Us/About_ICMR.html> Visited on 20.8.2012.
 P a g e | 114

general160. So also in the same year, ―Statement of Specific Principles for Assisted
Reproductive Technologies, 2000‖ was released by ICMR 161.

Further in 2002, the ICMR submitted a Draft National Guidelines for

Accreditation, Supervision & Regulation of ART Clinics, 2002 to the Ministry of
Health and Family Welfare 162. It is pertinent to point out that, this step of ICMR has
been interpreted by many authors as a step of legalization of commercial surrogacy in
India163. However, this Draft was not officially adopted by the Government of India
in 2002, nor it was a legislative step and hence it cannot be considered as a step of
legalization of surrogacy in India. In fact, this draft was later modified and adopted by
the ICMR officially in 2005 after consultation with the National Academy of Medical
Sciences, practitioners of ART, and the Ministry of Health and Family Welfare 164.

3.8.1 ICMR Guidelines, 2005 and Surrogacy

The ICMR Guidelines, 2005 was adopted with the main objective to provide
ethical guidelines for regulating ART clinics in India. However, these guidelines also
contain certain provisions for dealing with surrogacy. The guidelines defines
surrogacy as an arrangement in which a woman agrees to carry a pregnancy that is
genetically unrelated to her and her husband, with the intention to carry it to term and

160
See, Indian Council of Medical Research, Ethical Guidelines for Biomedical Research on Human
Participants, New Delhi (2006), p.viii, available at <http://icmr.nic.in/ ethical_ guidelines. pdf>
Visited on 10.7.2012.
161
Usha Rengachary Smerdon, ―Crossing Bodies, Crossing Borders: International Surrogacy Between
the United States and India‖, 39 Cumberland Law Review, No.1, 15 (2008-2009), at pp.35-36.
162
See, Erica Davis, ―The Rise of Gestational Surrogacy and the Pressing Need for International
Regulation‖, 21 Minn. J. Int’l L. 120 (2012), at p.126; Mrs. Adhilakshmi Logamurthy, ―Legalizing
Surrogacy in India‖, available at <http://tnfwl.com/p/news_letter/Legalizing_Surrogacy_ in_India.
pdf> Visited on 15.9.2012; Kari Points, ―Commercial Surrogacy and Fertility Tourism in India: The
Case of Baby Manji‖, available at <http://www.duke.edu/web/kenanethics/CaseStudies/Baby
Manji.pdf> Visited on 10.7.2012.
163
John Connell, Medical Tourism, CAB International, U. K. (2011), p.142; Wendy Chavkin &
JaneMaree Maher, The Global Politics of Motherhood: Transformation and Fragmentation,
Routledge, New York (2010), p.137; Stephanie Watson & Kathy Stolle, Medical Tourism, ABC–
CLIO, U.S.A. (2012), p.135; Babu Sarkar, ―Commercial Surrogacy: Is it Morally and Ethically
Acceptable in India?‖, Practical Lawyer, (December 2011), S-11; Cara Luckey, ―Commercial
Surrogacy: Is Regulation Necessary to Manage the Industry?‖ Wisconsin Journal of Law, Gender &
Society, Vol. 26:2, 213 (2011), at p.226.
164
Supra n.161 at p.31.
 P a g e | 115

hand over the child to the genetic parents for whom she is acting as a surrogate165. It
states that, surrogacy by assisted conception should normally be considered only for
patients for whom it would be physically or medically impossible/ undesirable to
carry a baby to term 166 . ART used for married woman with the consent of the
husband does not amount to adultery on part of the wife or the donor. However ART
without the husband‘s consent can be a ground for divorce or judicial separation 167.

The guidelines state certain conditions to be followed by a surrogate mother

such as, a surrogate mother should not be over 45 years of age 168 and no woman may
act as a surrogate more than thrice in her lifetime 169. Before accepting a woman as a
possible surrogate for a particular couple‘s child, the ART clinic must ensure (and put
on record) that the woman satisfies all the testable criteria to go through a successful
full-term pregnancy170. A relative, a known person, as well as a person unknown to
the couple may act as a surrogate mother for the couple. In case of a relative acting as
a surrogate, the relative should belong to the same generation as the woman desiring
the surrogate171. However, an oocyte donor cannot act as a surrogate mother for the
couple to whom the ooctye is being donated172. 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 legal issues, particularly in the untoward event of
maternal death173. There must be informed consent by the surrogate and it must be
witnessed by one who is not associated with the clinic 174.

The guidelines also consider the interests of surrogate mother and state that,
―all the expenses of the surrogate mother during the period of pregnancy and post-
165
ICMR Guidelines, R.1.2.33.
166
Id. R.3.10.2.
167
Id. R.3.16.2.
168
Id. R.3.10.5.
169
Id. R.3.10.8.
170
Id. R.3.10.5.
171
Id. R.3.10.6.
172
Id. R.3.5.4.
173
Id. R.3.5.4.
174
Id. R.3.5.22.
 P a g e | 116

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‖. 175
Payments to surrogate mothers should cover all genuine expenses associated with the
pregnancy. Documentary evidence of the financial arrangement for surrogacy must be
available. The ART centre should not be involved in this monetary aspect 176.

The guidelines also tries to protect the interests of the child and thus prohibits
sex selection at any stage after fertilization, or abortion of foetus 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
(PGD)177 . The ART clinics are also prohibited from making an offer to provide a
couple with a child of the desired sex 178 . Further it mandates that, advertisements
regarding surrogacy should not be made by the ART clinic. The responsibility of
finding a surrogate mother, through advertisement or otherwise, rests with the couple,
or a semen bank179. The guidelines also stipulate that, the birth certificate of surrogate
child 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 mother180. A child born through surrogacy must be adopted by the genetic
(biological) parents unless they can establish through genetic (DNA) fingerprinting
(of which the records will be maintained in the clinic) that the child is theirs 181. In the
case of a divorce during the gestation period, if the offspring is of a donor programme
– be it sperm or ova – the law of the land as pertaining to a normal conception would
apply182. Most importantly, the guidelines states that, a child born through ART shall
be presumed to be the legitimate child of the couple, born within wedlock, with

175
Id. R.3.5.4.
176
Id. R.3.10.3.
177
Id. R.3.5.9.
178
Id. R.3.5.10.
179
Id. R.3.10.4.
180
Id. R.3.5.4.
181
Id. R.3.10.1.
182
Id. R.3.12.4.
 P a g e | 117

consent of both spouses, and with all the attendant rights of parentage, and
inheritance183.

The guidelines are a positive step towards the regulation of surrogacy in India
and contain provisions for protecting the interests of surrogate woman as well as the
child. However, there are many drawbacks in these guidelines. As per the definition
of surrogacy provided in these guidelines only gestational surrogacy can be practiced
in India. Moreover, the woman can act as a surrogate only for the genetic parents.
Thus the guidelines are unclear about the situation where one of the intended parents
was not able to contribute the genetic material. The question arises whether they can
take the help of a donor? This question is also relevant, when the gays, lesbians and
single individuals want to use surrogacy for begetting a child. Further, the restriction
that only gestational surrogacy can be practiced, would create hardship for the
intended parents as they would have to search for egg donor also in case the female
partner of intended parents is unable to provide the genetic material. The guidelines
also stipulate that, the surrogacy can be availed normally by patients for whom it
would be physically or medically impossible/ undesirable to carry a baby to term. So
the guidelines are impliedly prohibiting the use of surrogacy by married fertile
couples. Further, the gay couples and single men can use surrogacy as it is
physically/medically impossible to them to carry a child. However it is unclear
regarding the issue whether a lesbian couple/ single woman can have access to
surrogacy.

An important drawback of the guidelines is that, the genetic parents name will
be mentioned in the birth certificate of surrogate child. This is in conflict with the
right to anonymity of the donor and may deter the donor to participate in such
surrogacy arrangements. Thus even though the guidelines say that the surrogate child
will be the legitimate child of intended parents, the mentioning of genetic parents
name in certificate will create problem for intended parents. This is because their
name will not be there in the birth certificate if they have not contributed the genetic

183
Id. R.3.16.1.
 P a g e | 118

material and if only one of them had contributed, then, certificate will carry the name
of such partner and the donor.

The guidelines are silent regarding the important issues like, the minimum age
for acting as a surrogate woman, the previous pregnancies, and number of children. It
merely mentions that a woman can act only thrice as a surrogate. This means that a
woman in her life time may undergo five or more than five pregnancies, i.e. two or
more children from her marriage and acting as a surrogate thrice. Such pregnancies
may cause harm to the health of the woman. Moreover, the guidelines are also silent
regarding the liability issues in case of any harm caused to surrogate mother as a
result of surrogate pregnancy. Likewise the guidelines do not address the situations of
refusal by intended parents to accept the child after the birth.

Certain provisions in the guidelines are also conflicting with one another. On
one hand the guidelines mention that there would be no bar to the use of ART by a
single woman who wishes to have a child, and no ART clinic may refuse to offer its
services to the above said persons, provided other criteria mentioned in this document
are satisfied. The child thus born will have all the legal rights on the woman or the
man. Thus a fertile as well as infertile single woman can have access to surrogacy. On
the other hand, the guidelines states that, surrogacy should be allowed only to those
individuals who are physically/medically unable to carry a child 184 . So also, the
guidelines state that, a third party donor of sperm or oocyte must be informed that the
offspring will not know his/her identity185. However, at the same time, as per the
guidelines the genetic parents name is to be mentioned in the certificate. So it is not
possible to ensure the anonymity of donor.

The ICMR guidelines thus suffer from the above mentioned defects. Further,
these guidelines are non-binding and voluntary in nature and hence some of the
authors argue that the ART clinics often do not adhere to these directives and thereby

184
Id. R.3.10.2.
185
Id. R.3.5.1.
 P a g e | 119

potentially compromise on the safety of surrogates 186 . Thus though the ICMR
guidelines aim towards regulation of ART practices including surrogacy, they are not
adequate to protect the interests and rights of all the stakeholders involved in
surrogacy.

The Government of India, realising the increasing need to regulate ART

practices and surrogacy in the country, took steps for establishing a binding legal
framework. As a result, the Assisted Reproductive Technology (Regulation) Bill and
Rules, 2008 were drafted. This Bill and the Rules were drafted by a 15 member
committee consisting of experts from ICMR, representatives from Ministry of Health
and Family Welfare and ART specialists. However, the Parliament has failed to adopt
it as law. The growing need to regulate ART practices and particularly surrogacy was
also discussed by the Law Commission of India.

3.8.2 The Report of Law Commission of India

The Law Commission of India after a detailed discussion submitted its report to
the Government of India in August 2009. This report is titled as ―Need for Legislation
to Regulate Assisted Reproductive Technology Clinics as well as Rights and
Obligations of Parties to a Surrogacy‖ 187. The Law Commission has observed:

―the legal issues related with surrogacy are very complex and
need to be addressed by a comprehensive legislation. Surrogacy
involves conflict of various interests and has inscrutable impact
on the primary unit of society viz. family. Non-intervention of
law in this knotty issue will not be proper at a time when law is
to act as ardent defender of human liberty and an instrument of
distribution of positive entitlements. At the same time,
prohibition on vague moral grounds without a proper assessment

186
See, Catherine London, ―Advancing a Surrogate-Focused Model of Gestational Surrogacy
Contracts‖, 18 Cardozo Journal of Law & Gender, 391 (2012).
187
This report was submitted to the Union Minister of Law and Justice, Ministry of Law and Justice,
Government of India by Dr. Justice A.R. Lakshmanan, Chairman, Law Commission of India, on the
5th day of August, 2009, as the Law Commission Report No. 228.
 P a g e | 120

of social ends and purposes which surrogacy can serve would be

irrational. The need of the hour is to adopt a pragmatic approach
by legalizing altruistic surrogacy arrangements and prohibit
commercial ones‖188.

Considering, the ground realities of surrogacy practices in India, the Law

Commission in its report gave the following recommendations:

1. 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 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.
But such an arrangement should not be for commercial purposes.
2. 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.
3. A surrogacy contract should necessarily take care of life
insurance cover for surrogate mother.
4. 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

188
Supra n.138 at pp.6-7.
 P a g e | 121

resorted to if biological (natural) parents and adoptive parents

are different.
5. 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.
6. The birth certificate of the surrogate child should contain the
name(s) of the commissioning parent(s) only.
7. Right to privacy of donor as well as surrogate mother should
be protected.
8. Sex-selective surrogacy should be prohibited.
9. Cases of abortions should be governed by the Medical
Termination of Pregnancy Act, 1971 only189.

The Law Commission thus recommended that active legislative intervention is

required to facilitate correct uses of the new technology i.e. ART and relinquish the
cocooned approach to legalization of surrogacy adopted hitherto 190. Similar concern
has been raised by Indian Judiciary in the case of Jan Balaz v. Anand Municipality191.

The Gujarat High Court stated that, ―the legislature has to address lot of issues
like rights of the children born out of the surrogate mother; rights and duties of the
donor and the surrogate; and various other legal, moral and ethical issues‖192. The
Court referred to the guidelines issued by ICMR as well as the ART (Regulation)
Bill, 2008 and observed that, ―there is an extreme urgency to adopt a legislation
answering all the issues raised by surrogacy‖193. Considering the pressing need for a
legal framework, a draft bill was prepared by a 12 member committee including
experts from ICMR, Ministry of Health and Family Welfare and specialists in the
field of ART and was presented before the winter session of Parliament in 2010.
However this Bill has not been yet officially enacted as legislation.

189
Id. at pp.25-27.
190
Id. at p.7.
191
A.I.R. 2009 Guj. 21.
192
Id. at p.26, para.19.
193
Id. at p. 27.
 P a g e | 122

3.8.3 The ART (Regulation) Bill, 2010 vis-a-vis Surrogacy

The Bill was made for providing a national framework for the accreditations,
regulation and supervision of assisted reproductive technology clinics, for prevention
of misuse of assisted reproductive technology, for safe and ethical practice of assisted
reproductive technology services and for matters connected therewith or incidental
thereto194. The Bill defines surrogacy as, ―an arrangement in which a woman agrees
to a pregnancy, achieved through assisted reproductive technology, in which neither
of the gametes belongs to her or her husband, with the intention to carry it and hand
over the child to the person or persons for whom she is acting as a surrogate‖195. The
Bill provides for the establishment of a National Advisory Board 196 and State
Boards197 for exercising the jurisdiction and powers and to discharge the functions
and duties conferred or imposed on the Boards by or under this Act.

The Bill legalizes the surrogacy practices in India by stating that, both the
couple/ 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 198. The Bill provides that, subject to the provisions of this
Act and the rules and regulations made there under, assisted reproductive technology
shall be available to all persons including single persons, married couples and
unmarried couples 199 . Thus regardless of being fertile or infertile the couple or
individual can avail surrogacy in India. They can obtain the service of a surrogate
through an ART bank 200 , which may advertise to seek surrogacy. But no such
advertisement shall contain any details relating to the caste, ethnic identity or descent
of any of the parties involved in such surrogacy201. However, the Bill prohibits ART
clinics from advertising to seek surrogacy for its clients202.

194
See, The Assisted Reproductive Technology (Regulation) Bill, 2010, Statement of Objects and
Reasons.
195
See, The Assisted Reproductive Technology (Regulation) Bill, 2010, S. 2(aa).
196
Id. S.3 & 5.
197
Id. S. 6 & 8.
198
Id. S. 34 (1).
199
Id. S. 32(1).
200
Id. S. 34(7).
201
Id. S. 34(7)
202
Id. S. 34(7).
 P a g e | 123

The Bill provides the criteria for acting as a surrogate and states that, no
woman of less than twenty one years of age and over thirty five years of age shall be
eligible to act as a surrogate mother under this Act203. It also states that, no woman
shall act as a surrogate for more than five successful live births in her life, including
her own children204. Only Indian citizens shall have a right to act as a surrogate, and
no ART bank/ART clinics shall receive or send an Indian for surrogacy abroad 205. A
relative, a known person, as well as a person unknown to the couple may act as a
surrogate mother for the couple/ individual206. In the case of a relative acting as a
surrogate, the relative should belong to the same generation as the woman desiring
the surrogate207. Further, 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 received a blood transfusion or
a blood product in the last six months 208.

The Bill lays down certain duties for the surrogate mother. It provides that, a
surrogate mother shall, in respect of all medical treatments or procedures in relation
to the concerned child, register at the hospital or such medical facility in her own
name, clearly declare herself to be a surrogate mother, and provide the name or names
and addresses of the person or persons, as the case may be, for whom she is acting as
a surrogate209. In the event that the woman intending to be a surrogate is married, the
consent of her spouse shall be required before she may act as a surrogate 210 . A
surrogate mother shall not act as an oocyte donor for the couple or individual, as the
case may be, seeking surrogacy211. Any woman agreeing to act as a surrogate shall be
duty-bound not to engage in any act that would harm the foetus during pregnancy and
the child after birth, until the time the child is handed over to the designated

203
Id. S. 34(5).
204
Id. S. 34(5).
205
Id. S. 34(22)
206
Id. S. 34(18)
207
Ibid.
208
Id. S. 34 (6)
209
Id. S. 34(8).
210
Id. S. 34(16).
211
Id. S. 34(13).
 P a g e | 124

person(s)212. Most importantly, the Bill states that, a surrogate mother shall relinquish
all parental rights over the child 213.

The Bill also provides various rights to a surrogate mother. All information
about the surrogate shall be kept confidential and information about the surrogacy
shall not be disclosed to anyone other than the central database of the Department of
Health Research, except by an order of a court of competent jurisdiction 214 . The
surrogate mother can receive the agreed amount as compensation for acting as a
surrogate as per the surrogacy agreement from the couple or individuals seeking such
service215. Further, the Bill states that, a surrogate mother shall be given a certificate
by the person or persons who have availed of her services, stating unambiguously that
she has acted as a surrogate for them216.

The Bill also lays down certain rights and duties for the intended parents. The
couples/ individuals who avail the service are entitled to receive a birth certificate for
the baby born through surrogacy mentioning that such couples/individuals are the
parents217. The parents of a minor surrogate child have the right to access information
about the donor, other than the name, identity or address of the donor, or the surrogate
mother, when and to the extent necessary for the welfare of the child 218. It is the duty
of persons who avails such surrogacy services to bear all expenses of the surrogate
pregnancy. This expense includes those related to such pregnancy achieved in
furtherance of ART as well as 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 219 . The expenses also include insurance for the
surrogate mother and the child until the child is handed over to them or any other
person as per the agreement and till the surrogate mother is free of all health

212
Id. S. 34(23).
213
Id. S. 34(4).
214
Id. S. 34(12).
215
Id. S. 34(3).
216
Id. S. 34(17).
217
Id. S. 34(10).
218
Id. S. 32(3).
219
Id. S. 34(2).
 P a g e | 125

complications arising out of surrogacy220. Most importantly, the Bill mandates that
the person or persons who have availed of the services of a surrogate mother shall be
legally bound to accept the custody of the child / children irrespective of any
abnormality that the child / children may have, and the refusal to do so shall
constitute an offence under this Act 221. Further, the Bill states that, if the intended
parents are a non-resident Indian, they should appoint a local guardian who will be
legally responsible for taking care of the surrogate during and after the pregnancy, till
the child/ children are delivered to the foreigner or foreign couple or the local
guardian222.

The ART Bill, 2010 contains numerous provisions for the protection of
interests and welfare of the surrogate child. To avoid any misuse of ART techniques,
the Bill provides that, the Pre-implantation Genetic Diagnosis shall be used only to
screen the embryo for known, pre-existing, heritable or genetic diseases or as
specified by the Registration Authority223. It prohibits any sex selection and makes
such activities as criminal offence 224. Regarding the status of the child, the Bill states
that, 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 225 . 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 226. In case of a
single woman the child will be the legitimate child of the woman, and in case of a
single man the child will be the legitimate child of the man 227. The Bill further states
that, in case a married or unmarried couple gets divorced or separates, as the case
may be, after both parties consented to the assisted reproductive technology treatment

220
Id. S. 34(24).
221
Id. S. S. 34(11).
222
Id. S. 34(19).
223
Id. S. 24.
224
Id. S. 25.
225
Id. S. 35(1).
226
Id. S. 35(2).
227
Id. S. 35(3).
 P a g e | 126

but before the child is born, the child shall be the legitimate child of the couple 228. A
child born as a consequence of a foreigner or a foreign couple seeking surrogacy, in
India, shall not be an Indian citizen229.

The child‘s right to know his origin is also protected under the Bill. It states
that, a child may, upon reaching the age of 18, ask for any information, excluding
personal identification, relating to the donor or surrogate mother 230 . However,
personal identification of the genetic parent or parents or surrogate mother may be
released only in cases of life threatening medical conditions which require physical
testing or samples of the genetic parent or parents or surrogate mother. But these
personal identifications can be disclosed with the prior informed consent of the
genetic parent or parents or surrogate mother231.

It is relevant to point out here that, the ART Bill, 2010 is based on the ‗National
Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India`
issued by the ICMR in 2005. The Bill, attempts to regulate the process of surrogacy
and answer some of the issues raised by surrogacy practices. However, the Bill fails
to address certain complex issues relating to surrogacy and thus suffers from various
draw backs. The Bill legalizes commercial surrogacy and declares that such
agreements are legal and enforceable. It is to be noted that the Law Commission of
India has also recommended the legalization of surrogacy arrangements but has also
stated that such arrangements should not be for commercial purpose 232 . Thus this
provision of the Bill is contradictory to the recommendations made by the Law
Commission of India.

The Bill is also silent about the various conducts which may be considered as a
breach of such agreements and its remedies. The Bill has neither designated, nor
authorized, nor created any Court or judicial forum to resolve issues which require

228
Id. S. 35(4).
229
Id. S. 35 (8).
230
Id. S. 36 (1).
231
Id. S. 36 (3).
232
Supra n. 138 at p.25.
 P a g e | 127

adjudication in problems arising out of surrogacy agreements 233. The absence of such
a designated Court or judicial forum, would create difficulties to the parties in case of
any dispute arising out of a surrogacy agreement because the parties may be from
different parts of India as well as from various foreign countries.

The ART Bill, similar to the ICMR guidelines allows only gestational
surrogacy arrangements. However, the prohibition of traditional surrogacy causes
hardships to persons who wish to have a child through surrogacy as they need to
arrange for an egg donor if the female partner is unable to contribute her egg.
Moreover, compared to gestational surrogacy, traditional surrogacy is more easy, safe
and successful method. A potential surrogate as per the Bill should be below 35 years
of age while the ICMR guidelines states the maximum age limit as 45 years. Thus
there is a conflict between the ART Bill proposed by the legislature and ICMR
guidelines framed by the medical experts. Further, the Bill proposes that surrogate
woman can have maximum five pregnancies including her own. However it does not
specify the maximum number of ART cycles she can undergo. It is necessary to
mention that the number of live births is not equivalent to the number of ART cycles
because the success rate of ART procedures is low and the surrogate may be required
to undergo numerous ART cycles234. Such repeated ART procedures may adversely
affect the health of the surrogate which the Bill does not address adequately 235. Most
importantly, the Bill does not mention the circumstances in which a surrogate woman
can abort her surrogate pregnancy.

The ART Bill mandates that, the persons who initiate surrogacy for begetting a
child should accept the child after its birth and any refusal would amount to an
offence. However the deterrent effect of this provision is reduced in case of foreign
couple / individuals who avail surrogacy service because the Bill mentions that in

233
See, Anil Malhotra & Ranjit Malhotra, ―All Aboard for the Fertility Express‖, Commonwealth Law
Bulletin, Vol.38, No. 1, 31-41, (2012), at p.40.
234
See, Imrana Qadeer, ―The ART of Marketing Babies‖, Indian Journal of Medical Ethics, Vol IX,
No. 3, (2012), available <http://www.issuesinmedicalethics.org/184ar209.html> Visited on 20.9.2012.
235
See, Nivedita Menon, ―The Regulation of Surrogacy in India – Questions and Concerns‖, SAMA,
New Delhi, available at <http://kafila.org/2012/01/10/the-regulation-of-surrogacy-in-india-questions-
and-concerns-sama/> Visited on 20.9.2012.
 P a g e | 128

case of refusal by the intended parents to accept the child, the local guardian
appointed by such couple will be responsible to accept the child 236 . Thus the real
culprits, i.e. the person who initiated the surrogacy can absolve themselves from
liability by simply refusing to accept the child. Moreover, though there is an offence
of refusal to accept, the implementation of punishment would be difficult in such
cases as the persons are in foreign countries. Thus a major lacuna in the Bill is that,
though majority of persons availing surrogacy in India are from foreign countries the
Bill does not contain any provision to compel the persons to stay back in India upto
the birth of the child237. The Bill however is an earnest attempt towards regulating
surrogacy arrangements in India. But, due to the various drawbacks as discussed
above, the Bill is inadequate to deal effectively with the whole issues surrounding the
surrogacy practices in India and to protect the interests of various stakeholders. In this
context it is relevant to mention here that, in 2012 an application was filed under
Right to Information Act, 2005 seeking clarification from Government of India about
the status of ART Bill, 2008 by Mr. Hari G. Ramasubramanian, Founder of India‘s
First Fertility Law Firm, viz. Indian Surrogacy Law Centre (ISLC)238 . Reply was
given by the Legislative Department, Ministry of Law and Justice on 19th July, 2012
wherein it stated that a new proposal to enact legislation titled ―Assisted Reproductive
Technology (Regulation), 2012‖ had been received from the Department of Health
and Family Research, Ministry of Health and Family Welfare 239. Thus at present in
India, in the absence of a specific legislation the ICMR Guidelines, 2005 are the only
available regulatory framework for dealing with surrogacy.

236
Sarojini N. B. & Aastha Sharma, ―The Draft ART (Regulation) Bill: In Whose Interest?‖, Indian
Journal of Medical Ethics, Vol. VI, No.1, 36, (2009).
237
Supra n.234.
238
Indian Surrogacy Law Centre (ISLC) is based in Tamil Nadu. It deals with surrogacy related issues
and facilitates contractual relationships between the surrogates and intended parents, providing
surrogates for intended parents and providing legal assistance to the parties to the surrogacy
agreement.
239
See, Hari G. Ramasubramanian, ―Assisted Reproductive Technology (Regulation) Bill pending
with the Legislative Department‖, available at <http://indiansurrogacylaw.com/assisted-reproductive-
technology-regulation-billpending-legislative-department-ministry-law-justice/> Visited on 20.9. 2012.
 P a g e | 129

3.9 Conclusion

The method of surrogacy for procuring a biologically related child is widely

being used all over the world and particularly in India. Surrogacy has been
appreciated as well as criticized. It has been described as ―gift of love‖ or ―gift of life‖
as well as termed as ―rent a womb‖ depending on the particular viewpoint adopted
towards it. Regardless of its benefits, surrogacy has also generated considerable legal,
moral and ethical debate240. Due to the uncertainty prevailing over the various issues
surrounding surrogacy, it is considered as a legal and ethical mine-field241.

In more recent years, surrogate pregnancy has ignited a maelstrom of

controversy in which scholars, politicians, judges, scientists, and religious authorities
debate the definition of family and kinship. Like adoption, surrogate pregnancy is not
an isolated phenomenon but rather it overlaps with a myriad of other social issues,
such as wealth distribution, race and color-blindness, gender equality, and children‘s
rights, all of which come into play when defining family bonds and relationships 242.

Surrogacy raises various legal issues such as those relating to 1) the surrogate
mothers; 2) women generally (by spillover effects of surrogacy; 3) the children born
out of the transaction; 4) the siblings who see or later hear of the transfer of the child;
5) the hiring parents; 6) children available for adoption who might be adopted but for
surrogacy transactions 243 ; 7) other parties involved or keenly interested in the
transaction, such as grandparents and other relatives, brokers, lawyers and
counselors244.

240
A. Stuhmcke, ―Surrogate Motherhood: The Legal Position in Australia‖, Journal of Law and
Medicine, 2(2), 116 -124 (November 1994), at p.117.
241
See for more discussion, ―ACT Opens Way for Surrogate Births‖, Courier Mail (The Courier-Mail
is a daily newspaper published in Brisbane, Australia), Mar. 5, 1996, p 3, avialable at
<www.couriermail.com.au/> Visited on 5.7.2011.
242
Supra n.53 at p.16.
243
Richard A. Posner, ―The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood‖,
5 J. Contemp. Health L. & Pol’y 21 (1989), at p.24.
244
See, Michael H. Shaprio, ―How (Not) to Think About Surrogacy and Other Reproductive
Innovations‖, 28 U.S.F. L. Rev. 647 (1993-1994).
 P a g e | 130

In the absence of a specific legislation, it is very difficult to resolve these

issues. It is necessary to address these issues urgently because of the fact that India is
fast becoming a hot-spot destination for surrogacy. Moreover, there are no reliable
statistics on how many surrogacies have been arranged in India 245. The demand for
surrogacy is expected to grow due to the increasing awareness created by major
media outlets like New York Times and Oprah which spotlight towns such as Gujarat,
where more than fifty surrogate women are pregnant with children destined for
international locales246. The episodes of Nirmala and Baby Manji brought to light the
lacuna in the Indian legal system to deal with surrogacy. In the first case a woman
named Nirmala sought permission from the Chandigarh High Court for renting her
womb, for raising money to treat her paralyzed husband 247 . The case of ―Baby
Manji‖, is a highly publicized custody dispute involving a Japanese father and a child
conceived by an Indian surrogate mother 248 . The biological father faced legal
complications when he divorced the child‘s intended mother, but was not permitted,
as a single man, to adopt the child under Indian law 249 . The case drew attention
worldwide and resulted in a ruling by the Supreme Court of India upholding the
commercial surrogacy agreement. These types of controversies and disputes
generated by surrogacy make it appropriate to ask whether the current legal system in
India is adequate to deal with the complicated legal and ethical questions raised by
surrogacy arrangements. Thus India‘s minimal regulation of surrogacy agreements
raises a bundle of concerns from both legal and ethical standpoints. These concerns
can be categorized under four major heads. The first three concerns are clustered
around the key participants in the transaction such as: the intended parents
(commissioning parents), the surrogate mother, and the surrogate child and the fourth

245
See, Amelia Gentleman, ―India Nurtures Business of Surrogate Motherhood‖, N.Y. Times, Mar. 10
(2008), available at < http://www.nytimes.com/2008/03/10/world /asia/lsurrogate.html> Visited on
5.7.2011.
246
Ibid.
247
Supra n.10.
248
Baby Manji Yamda v. Union of India & Another, A.I.R. 2009 S.C. 84. Also see, Harmeet Shah
Singh, ―Japanese Girl Born to Indian Surrogate Arrives Home‖, CNN, Nov. 2 (2008), available at
< http://www.cnn.com/2008/WORLD/asiapcf/11/02/india.baby/index.html.> Visited on 5.7.2011.
249
See, ―Reproductive Alternatives Blog‖, available at <http://reproductive-alternatives.com/> Visited
on 5.7.2011.
 P a g e | 131

concern is clustered around the legality of the surrogate contracts. These concerns
have been examined in detail in the subsequent chapters.

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