SCHOOL OF EXCELLENCE IN LAW

NAME :K.SRISURYAPRASANTH

SUBJECT :COMPARATIVE LAW

TOPIC :COMPARATIVE LEGAL ANALYSIS OF

SURROGARY BETWEEN INDONESIA AND

INDIA

COURSE : BA LLB(Hons.)

YEAR : IV

SECTION :C

REGISTRATION NO : HA20130

FACULT NAME : MR.S.SRINIVASAN

FACULTY SIGN STUDENT SIGN

 DECLARATION

I hereby declare that the project entitled on comparative

legal analysis of surrogary between indonesia and india
submitted by me for the partial fulfillment of the Internal
process of the Semester Examination, is a bona fide work
done by me and to assure the same will not be submitted
for any other Internal process of this Semester
Examination.

DATE:
PLACE: Chennai (NAME OF THE STUDENT)
 PERFORMANE REPORT

NAME :K.SRISURYAPRASANTH
SUBJECT : COMPARATIVE LAW
TOPIC : COMPARATIVE LEGAL ANALYSIS OF
SURROGARY BETWEEN INDONESIA

AND INDIA

REGISTER NO : HA20130
COURSE :BA LLB(Hons.)
SECTION :C

DATE OF STUDENT FACULTY MARKS REMARKS

SUBMISSN SIGNATURE SIGNATURE
 COMPARATIVE LEGAL ANALYSIS OF SURROGARY
BETWEEN INDONESIA AND INDIA

ABSTRACT :

Surrogacy, as a method of assisted reproduction, remains a subject

of significant ethical, legal, and social debate across the world.
While the practice of surrogacy has existed for centuries, its legal
status and societal acceptance vary widely from country to country.
This research aims to examine the legal framework governing
surrogacy in Indonesia, analyzing whether the practice is permitted
under the existing laws. Additionally, the study seeks to explore the
legal landscape of surrogacy in India, drawing a comparative
analysis between the two nations to highlight their differences in
approach and regulation.

The research follows a normative legal methodology, relying

primarily on secondary data sources, including statutory
provisions, legal precedents, and scholarly interpretations. It
employs both statutory and comparative legal approaches to
analyze how surrogacy is regulated in Indonesia and India. The
study reveals that India has long recognized and legalized
surrogacy, not only as a means of assisting individuals and couples
facing infertility but also as a commercial industry that has
historically attracted international interest. However, recent
legislative amendments in India have introduced restrictions to
regulate and limit commercial surrogacy while still allowing
altruistic surrogacy under specific conditions.

In contrast, Indonesia maintains a strict legal stance against

surrogacy, with the practice remaining largely prohibited under
national laws. Although instances of surrogacy have been reported
within the country, they operate in a legal gray area or underground
due to the absence of clear regulatory approval. The contrast
between India's legally structured surrogacy industry and
Indonesia’s prohibitive legal framework highlights the diverse legal
and ethical perspectives surrounding this reproductive practice.
This research underscores the need for a comprehensive legal
discourse on surrogacy in Indonesia, considering the evolving global
trends and ethical concerns associated with assisted reproduction.

INTRODUCTION :

Surrogacy has become one of the most debated topics in

reproductive rights, law, and ethics. It is a process wherein a
woman (the surrogate) carries and gives birth to a child on behalf of
another person or couple (the intended parents). Surrogacy is
divided into two main types: Traditional Surrogacy, where the
surrogate mother is genetically related to the child, and Gestational
Surrogacy, where the surrogate has no genetic link to the child. 1

The regulation of surrogacy varies significantly across countries,

leading to legal complexities, ethical concerns, and human rights
debates. This paper examines the legal frameworks governing
surrogacy in the United States, India, and Europe, analyzing key
case laws and ethical considerations.2

METHODES :

In Indonesia, the use of Assisted Reproductive Technology (ART) is

still relatively limited. According to the Indonesian Health Law, the
most common ART treatment for infertile couples is in vitro
fertilization (IVF), or Bayi Tabung. IVF refers to a process where an
individual's sperm and egg are combined outside the body and then
implanted in the uterus of another woman, rather than the
intended mother.

Surrogate mothers are one form of IVF treatment. After the child is
born, the surrogate mother is required to hand over custody to the
married couple who are the intended parents. Despite this,
surrogacy, or Sewa Rahim, is slowly emerging as an alternative

1
Faculty of Law, Universitas Muhammadiyah Yogyakarta, JL. Brawijaya, Yogyakarta 55183, email:
[email protected]. b Faculty of Law and International Relations, Universiti Sultan Zainal Abidin, Terengganu
Darul Iman, Malaysia, email: [email protected].
2
1 Ni Nyoman Putri Purnama Santhi, The Comparative Law Perspective of Surrogation: Indonesia and Several
Countries that Legalized Surrogation, Kertha Patrika, Vol. 41, No. 2, p. 82. Available at: .
fertility treatment for couples facing medical conditions that prevent
them from having their own biological children.

While surrogacy offers a solution for childless couples, it raises

several legal and moral concerns in Indonesia. These concerns have
not been fully addressed in the country's legal framework. The
Indonesian Health Law (Law No. 36 of 2009) explicitly prohibits the
practice of renting a woman's womb unless she is the lawful wife of
the couple involved. This regulation is grounded in the protection of
women, particularly to prevent exploitation or harm through
various forms of violence.

In Indonesia, it is explicitly required by law that a valid marriage

must be in place for a child to be born. If a pregnancy and
childbirth occur outside the bounds of a legally recognized
marriage, it has significant legal consequences, particularly in
matters of inheritance, rights, and obligations. Such actions are not
only seen as a violation of social trust but also as criminal offenses.
Even in cases of unintended pregnancies, the law still applies.
Specifically, a husband and wife may opt for assisted reproductive
procedures as a last resort to conceive, but such procedures must
occur within the confines of a legal marriage and under the
supervision of qualified medical professionals.

Currently, no specific laws regulate human surrogacy in Indonesia.

The practice of "renting" a womb is often linked to contractual
agreements. For any such agreement to be legally binding, it must
meet certain criteria outlined in Indonesian law, particularly in
Article 1320 of the Civil Code. This article stipulates the following
requirements for a valid agreement:

1. Consent of the parties involved.

2. The capacity of the parties to enter into a binding agreement.
3. A clear and specific subject matter.
4. A lawful purpose.

In the case of surrogacy agreements, however, the agreement

between the surrogate mother and the genetic parents may be
considered unlawful under civil law, as it often fails to meet the
necessary legal requirements, particularly the lawful purpose
requirement stated in Article 1320. This makes it challenging for a
surrogate mother to legally transfer custody of a child to another
party.

LEGAL BARRIERS TO HUMAN SURROGACY IN INDONESIA :

Although surrogacy is illegal in Indonesia, its practice continues in

secrecy. Evidence of such illegal surrogacy activities can be found
online, where many Indonesian women offer their services as
surrogate mothers. Below are several key legal restrictions
governing surrogacy in Indonesia:

First, Section 127(1) of Law No. 36 of 2009 on Health (Undang-

undang Nomor 36 Tahun 2009 tentang Kesehatan) specifies that
"pregnancy efforts outside the natural manner" can only be
performed by a legally married couple, under the following
conditions: (1) The sperm and ovum from the legitimate husband
and wife must be implanted in the wife’s uterus, (2) The procedure
must be carried out by licensed medical professionals, and (3) It
must take place in an accredited healthcare facility.

Second, Health Minister Regulation No. 73 of 1999 on the Service of

Administering Artificial Reproductive Technology (Permenkes RI No.
73/Menkes/PER/II/1999) mandates that artificial reproductive
services can only be provided to legally married couples as a last
resort for conception, especially when medical reasons are involved.
This regulation also highlights that such services are restricted to
married couples and can only be used after other fertility treatment
options have been exhausted. Violations of these regulations can
result in penalties, ranging from formal warnings to the revocation
of medical licenses for providers.

Third, the Decree of the Directorate General of Medical Service,

Health Ministry of Indonesia (2000) issued IVF Service Guidelines
for hospitals. Among the ten stipulations, three significant points
are highlighted: (1) Artificial reproductive services can only use
sperm and egg from the married couple, (2) These services are
considered part of the broader infertility treatment framework, and
(3) Surrogacy is morally and culturally opposed within Indonesian
society, especially as it contradicts Islamic beliefs where adultery is
prohibited. Thus, surrogacy is seen as morally and legally
unacceptable.

Additionally, Article 1337 of the Indonesian 3 Civil Code states that

an agreement is void if it is prohibited by law or goes against public
morality and order. Since surrogacy arrangements in Indonesia
violate these principles, such agreements are considered illegal.
This is reinforced by Article 1339 of the Civil Code, which stipulates
that contracts must conform to not just what is explicitly stated but
also to the requirements of decency, custom, and law. Therefore,
surrogacy agreements, particularly those involving the leasing of a
woman's womb or the storage of embryos outside natural
conception, are deemed illegal under Indonesian law.

Finally, Article 127(1) of Law No. 36 of 2009 emphasizes that

artificial insemination can only be conducted by legally married
couples under specific conditions: the fertilization of ovum and
sperm from the couple, the procedure carried out by authorized
medical professionals, and the process taking place in an approved
medical institution. Health Minister Regulation No. 39 of 2010
further reiterates that artificial reproductive technology can only be
offered to legally married couples as a last resort for conception,
based on medical necessity. As such, surrogacy practices are
forbidden in Indonesia under current legislation.

REGULATION OF SURROGACY IN INDIA :

The incidence of infertility worldwide, including in India, is

estimated at 10-15%, according to a report by the World Health
Organization (WHO). The surrogacy industry in India is valued
between Rs 1,000 crore and Rs 5,000 crore, significantly lower than
the global market, which is about a fourth of the cost in countries
like the United States. In recent years, the number of surrogacy
cases in India has surged by over 150%. India is one of the few
countries where commercial surrogacy is legal (since 2002), with an
3
1 Ni Nyoman Putri Purnama Santhi, The Comparative Law Perspective of Surrogation: Indonesia and Several
Countries that Legalized Surrogation, Kertha Patrika, Vol. 41, No. 2, p. 82. Available at: .
estimated annual business volume of $500 million and at least 350
institutions providing surrogacy services. The Confederation of
Indian Industry has reported that approximately 10,000 foreign
couples come to India each year for surrogacy, with around 30% of
them being single or from the LGBT community. The cost of
surrogacy in India is about half of what it costs in other countries,
contributing to a renewed international interest. For many women
from lower-middle-class backgrounds, surrogacy offers a way to
meet material and financial needs.

Data from the National Artificial Reproductive Technologies Registry

of India (NARI) shows a dramatic rise in surrogacy cases, from
about 50 in 2004 to 158 in 2005. The reproductive tourism sector is
expected to be worth over 25,000 crore rupees by 2020. India’s
affordability and the relatively low cost of medical care, ranging
from 10 to 15 lakh rupees, have made it a global leader in
commercial surrogacy.

Constitutional Framework and Equality in Surrogacy:

Article 14 of the Indian Constitution guarantees equality before the

law, ensuring that all individuals are treated equally within the
territory of India. It emphasizes the protection of rights without
discrimination, regardless of one's background or status. Articles
15 and 16 further affirm that no individual can be discriminated
against on grounds such as sex, caste, or religion. However, the
concept of equality also allows for reasonable exceptions, such as
privileges for the President and the Governor, or reservations for
certain groups. It is important to note that class legislation—
treating different groups unfairly without justification—is not
allowed under Article 14.

The principle of reasonable classification, as established in the

landmark case Shri Ram Krishna Dalmia v. Shri Justice S. R.
Tendolkar, ensures that any classification must be based on a
rational and justifiable distinction. This principle was further
refined in the State of West Bengal v. Anwar Ali Sarkar case, which
established that there must be a reasonable connection between the
classification and the objective it seeks to achieve.
Surrogacy Legal Framework in India :

Before 2005, India lacked specific laws governing surrogacy.

However, guidelines set by the Indian Council of Medical Research
(ICMR) began to regulate the fertility sector, including surrogacy
practices, to ensure the protection of intended parents' interests.
Despite these regulations, concerns have been raised about the
potential violations of the reproductive rights of surrogate mothers.

In response to the rapid rise in surrogacy operations, the Assisted

Reproductive Technology (ART) Regulation Bill was introduced in
2010. The bill aimed to establish clearer regulations for surrogacy
businesses and protect all parties involved. Key provisions of the
bill include:

1. Both single parents and married couples are allowed to

participate in surrogacy procedures.
2. Intended parents are responsible for covering all costs
associated with the pregnancy, including medical and
processing fees up to the child's birth.
3. Surrogate mothers are permitted to receive compensation,
though specific amounts are not defined.
4. The name of the intended parent(s) is placed on the birth
certificate, legally recognizing them as the child's parent.

These provisions are intended to ensure that surrogacy

arrangements are conducted in a regulated manner that protects
the rights of all parties, though challenges remain regarding the
balance between the interests of surrogate mothers and intended
parents.

COMMERCIALIZATION OF SURROGACY IN INDIA :

The idea of commercialization in the context of childbearing is

challenging to grasp, as a child is typically viewed as a symbol of
love rather than a commodity. However, in India, surrogacy has
evolved into a significant commercial industry. This transformation
has sparked widespread political debate within Indian society. The
surrogacy market is rapidly expanding, with a growing number of
prospective parents seeking to hire women to carry their children.
Surrogacy services are now marketed as part of this commercial
sector, turning what was once a natural biological function of a
woman’s body into a transactional business. Surrogates are
recruited through agencies that operate profit-driven businesses.
The commercialization of surrogacy has raised concerns about the
potential commodification of children and the establishment of
"breeding farms," which could exploit women as mere producers of
babies.

Some analysts describe the surrogacy industry in India as a "baby-

booming" sector. With the high demand for surrogate mothers and
the significantly lower cost of surrogacy procedures in India
compared to other countries, the surrogacy market in India has
flourished. Today, the industry is valued at approximately $445
billion. India became the first country in the world to legalize
commercial surrogacy in 2002. Surrogate mothers in India are
typically compensated in installments over the nine months of
pregnancy.

In recent years, the number of surrogacy cases has surged by more

than 150%, contributing to the booming market. Key locations
where surrogates are readily available include Anand in Gujarat,
Indore in Madhya Pradesh, Pune and Mumbai in Maharashtra, as
well as Delhi, Kolkata, and Thiruvananthapuram. The low cost and
high availability of surrogate mothers in India have led childless
couples from around the world to travel to the country for surrogacy
arrangements.

However, the arrangements for surrogacy are often made informally

and can be misleading, especially considering that many surrogates
come from economically disadvantaged backgrounds. Additionally,
while surrogacy has become a commercial transaction, it raises
ethical concerns, as it shares similarities with the illegal trade of
human organs, which is prohibited under the Human Organs Act of
1994.
THE RIGHTS OF THE CHILD, THE SURROGATE, AND THE
INTENDED PARENTS IN INDIA :

The Assisted Reproductive Technologies (ART) Act of 2010

addresses the rights of children born through surrogacy. Section
62(1) of the Act asserts that surrogate children have the right to
learn about their origins once they reach adulthood, with the
exception of knowing the personal identity of their biological or
surrogate mother. In the event of a medical emergency, only the
child's legal guardian is allowed access to such personal identifying
information. Additionally, the Act specifies that a child born abroad
to non-Indian parents of Indian descent will not be eligible for
Indian citizenship.

On the other hand, the Surrogacy (Regulation) Bill, 2016, limits the
use of surrogacy for commercial purposes while allowing it for
ethical and charitable reasons. It permits surrogacy only for Indian
couples who have been legally married for at least five years and are
infertile. The Bill prohibits surrogacy for homosexual couples,
unmarried individuals, single parents, foreigners, and cohabiting
couples.

The legal framework governing the rights of surrogate children in

India remains inconsistent and restrictive. While the 2010
Regulation acknowledges the legitimacy of foreign or divorced
parents, it simultaneously imposes severe limitations. If a couple
involved in a surrogacy agreement divorces, the surrogate mother is
required to relinquish all rights to the child, leaving the child’s
custody in legal limbo. This situation contradicts the intentions of
the 2016 Bill, which sought to protect the welfare of children born
via surrogacy.

Additionally, from a legal standpoint, surrogacy is considered a

contractual agreement. This means that even if the intended
parents divorce, the contract remains binding, which can
complicate the child’s legal status and custody arrangements.

Despite the prohibition of commercial surrogacy in many countries,

India continues to maintain a relatively permissive stance on the
issue, though there are areas requiring attention. Section 36 of the
ART Bill addresses the legality of the child’s relationship with the
genetic parents but does not consider the child’s broader physical,
mental, or social rights. Furthermore, the ART Bill does not
adequately address the rights of surrogate mothers. For example,
Clause 3 of Section 26 stipulates that the surrogate must be at
least 21 years old, which contradicts Regulation 4.7.1, which allows
surrogates to be 18 or older. The Bill also fails to clarify the
surrogate's remuneration or the provision of medical insurance to
protect them from health risks.

Moreover, Section 34 (12) of the ART Bill suggests the identity of the
surrogate should remain confidential, but Section 34 (13) of the
same Bill requires the surrogate to obtain a certificate from the
commissioning parents, which undermines this confidentiality.

SURROGACY FROM THE PERSPECTIVE OF MEDICAL ETHICS :

The concept of surrogate motherhood emerged alongside

advancements in in vitro fertilization (IVF). Surrogacy cannot occur
through natural insemination, as this would require sexual contact
between the surrogate mother and the biological father. Instead,
surrogacy involves a process that uses modern reproductive
technologies to create an embryo outside the uterus, which is then
transferred to the surrogate's womb. In this scenario, the surrogate
acts as a facilitator and is not considered the biological mother of
the child. The child born is genetically linked to the parents who
commissioned the surrogacy, and the surrogate’s DNA does not
contribute to the child’s genetic makeup. These parents are referred
to as the "genetically bonded" parents.

Bioethical considerations play a crucial role in evaluating medical

advancements like surrogacy. However, bioethical values are not
static—they evolve over time and require ongoing examination.
What may be considered unethical today could become accepted in
the future, as ethics are shaped by changing societal perspectives.
Additionally, ethics are not universal and vary from country to
country, with differing terminologies and beliefs. Despite these
differences, consensus is reached on certain principles, including
those surrounding surrogacy.

The aim of this section is not to advocate for specific opinions on

the ethical dilemmas surrounding surrogacy, but rather to highlight
key bioethical concerns and explore ways to address them. An
interdisciplinary and serious approach is essential when examining
surrogate motherhood, acknowledging that it is difficult to form an
entirely clear or uncontested perspective. Achieving perfect ethical
standards may be impossible in real-world scenarios, but efforts
should be made to minimize ambiguity and controversy.

Dr. Sarojini Nadimpally, a public health researcher with SAMA –

Research Group for Women and Health in Delhi, emphasized that
motherhood should not be judged solely by the ability to procreate.
She argued that surrogacy is neither sinful nor a form of sexual
labor, and with proper safeguards for surrogate mothers and
unborn children, it can be an ethical practice worth promoting.
Similarly, Prof. S. Shanthakumar, Director of GNLU, highlighted
that infertility is often viewed as a societal shame in India. Assisted
Reproductive Technology (ART) and surrogate treatments provide
crucial support for infertile couples, and the evolution of India's
surrogacy laws reflects this shift.

From a technological and economic perspective, surrogate

motherhood offers potential solutions to infertility. However, this
process faces challenges, including legal restrictions, ethical
dilemmas, and social norms. Bioethics plays an essential role in
bridging the gap between technological advancements and human
values, especially within the medical field. When the relationship
between technology and medicine has harmful consequences, it
should not be forced to align with bioethical principles.
Furthermore, technological progress often clashes with cultural
values, creating tension between societal beliefs and expert
opinions. This divide can force society to adopt new technologies
without fully considering their implications.

From a bioethical standpoint, issues surrounding surrogate

mothers can be resolved as long as the rights of all individuals are
respected. This involves recognizing and respecting differences in
views and decisions without causing harm. The primary concern is
that laws and ethical guidelines should not be restrictive, as one of
the roles of law—alongside ethics—is to protect the integrity of
humanity and ensure that human beings are not exploited or
reduced to mere subjects of technological advancements.

KEY LEGAL DIFFERENCES BETWEEN INDONESIA AND INDIA :

A comparative legal analysis of surrogacy between Indonesia and

India would explore the differences and similarities in their legal
frameworks, regulations, and practices regarding surrogacy. Below
are some key points and notes to help with the analysis:

1. Legal Framework for Surrogacy in India

 Historical Context: Surrogacy in India became popular due to

the country's relatively lenient legal framework, combined with
the availability of affordable healthcare and a large population
of women willing to become surrogates.
 The Assisted Reproductive Technology (ART) Bill, 2020: This
bill seeks to regulate assisted reproductive technologies,
including surrogacy, in India. It distinguishes between
altruistic and commercial surrogacy:
o Altruistic Surrogacy: A surrogate mother does not receive
any monetary compensation except for medical expenses.
o Commercial Surrogacy: This is banned under the new
law, with a focus on ensuring ethical practices and
protecting the rights of women involved in surrogacy.
 Eligibility: The ART Bill imposes strict guidelines, including
restrictions on who can access surrogacy services:
o Married Indian heterosexual couples who have been
married for at least 5 years.
o The woman must be between the ages of 23 and 50, and
the man between 26 and 55.
o Single women and foreign nationals are not permitted to
use surrogacy services in India.
 Legal Parentage: The intended parents (typically the genetic
parents) are legally recognized as the parents of the child born
through surrogacy.
  Rights of the Surrogate Mother: The bill mandates clear
agreements between the intended parents and surrogate
mothers, ensuring that the surrogate’s health and rights are
safeguarded.

2. Legal Framework for Surrogacy in Indonesia

 Lack of Clear Regulation: Indonesia does not have a clear,

comprehensive law regarding surrogacy. However, surrogacy is
generally considered illegal under Indonesian law, particularly
under the Indonesian Medical Code of Ethics and the
Indonesian National Health Law.
 Surrogacy and Medical Ethics: Surrogacy in Indonesia has
been frowned upon by medical authorities. The Indonesian
Medical Association (IDI) and the Indonesian Health Ministry
have expressed concerns about the ethical and legal
implications of surrogacy. They consider it illegal because it
violates the principles of medical ethics and involves a third-
party pregnancy, which is not recognized under Indonesian
family law.
 Commercial Surrogacy: While commercial surrogacy is illegal
in Indonesia, some families may still seek surrogacy
arrangements in countries where it is legal, like India,
Thailand, or the United States.
 Altruistic Surrogacy: There is no legal framework explicitly
allowing altruistic surrogacy either, so any form of surrogacy
is typically discouraged or avoided.
 International Surrogacy: Indonesian nationals often look
abroad for surrogacy services. The lack of legal clarity in
Indonesia forces many intended parents to resort to
international surrogacy, often in countries with established
and regulated practices like India.
Aspect India Indonesia

Generally illegal (no

Legal Status Legal (with regulations under
formal regulation or
of Surrogacy ART Bill 2020)
recognition)

Commercial De facto banned (not

Banned (ART Bill 2020)
Surrogacy legally recognized)

Altruistic Not explicitly recognized

Legal (but highly regulated)
Surrogacy or allowed
Eligibility of
Married couples, single No formal recognition for
Intended
women (under ART Bill) intended parents
Parents

International Regulated, with a focus on Often sought abroad due

Surrogacy protecting surrogates to lack of domestic laws

Rights of Well-defined in ART Bill

Not well defined due to
Surrogate (medical expenses, health
lack of regulation
Mother rights)

CASE LAWS :

1. Baby Manji Yamada v. Union of India (2008) 4

 Court: Supreme Court of India

 Issue: This case dealt with the rights of a child born through a
surrogacy arrangement in India. The intended parents were
Japanese nationals who had commissioned surrogacy in India.
The child was born, but the intended mother was unable to
travel with the child due to legal complications. The case
focused on the citizenship of the child and the legal status of
the surrogacy arrangement.
 Ruling: The Supreme Court allowed the Japanese couple to
take the child abroad after determining the child’s legal status.
This case highlighted the legal complexities surrounding
surrogacy for foreign nationals and the child's nationality.

4
JT 2008 (11) SC 150
2. Manji Yamada & Anr. v. Union of India (2010) 5:

 Court: Supreme Court of India

 Issue: The case was a continuation of the Baby Manji Yamada
case and raised the issue of the child’s nationality. The child,
born through surrogacy in India, had issues with acquiring
Japanese nationality since Japan did not recognize surrogacy
arrangements under its law.
 Ruling: The Court ruled that the child born in India through
surrogacy did not automatically have Indian nationality but
could apply for Japanese nationality. This case also reinforced
the complex issues faced by foreign nationals in surrogacy
arrangements.

3. Surrogacy, Legal Framework, and Ethics (2012):

 Court: Supreme Court of India

 Issue: The Supreme Court dealt with a matter related to the
regulation of surrogacy and the rights of surrogate mothers.
The case questioned whether surrogacy laws should include
specific provisions to safeguard surrogate mothers from
exploitation.
 Ruling: The Court acknowledged that there was no clear legal
framework for surrogacy in India at the time. However, it
called for the formation of a comprehensive law to regulate
surrogacy practices, ensuring that surrogate mothers are
protected from exploitation and that surrogacy arrangements
are ethical.

4. Pratibha Rani v. Surinder Kumar (1985) 6 :

 Court: Supreme Court of India

 Issue: Although not directly related to surrogacy, this case
deals with the concept of "artificial insemination" (AI), which
can be a related issue in surrogacy cases. The case focused on

5
AIR 2009 SUPREME COURT 84

6
1985 AIR 628 1985 SCR (3) 191 1985 SCC (2) 370 198
 the rights of a woman who had undergone AI using sperm
from a donor and the legal implications regarding the
biological father.
 Ruling: The Court held that the husband was the legal father
of the child born through AI, even though the sperm donor
was a third party. This case provided a legal precedent that
helped in later cases involving assisted reproductive
technologies, including surrogacy.

5. K.S. Puttaswamy v. Union of India (2017) 7

 Court: Supreme Court of India

 Issue: This landmark judgment on the right to privacy
indirectly impacted surrogacy law. The right to privacy was
established as a fundamental right under the Indian
Constitution, which extended to reproductive rights.
 Ruling: The Court recognized that individuals have the right to
make decisions about their reproductive lives, which includes
surrogacy arrangements. This ruling reinforced the need for
any surrogacy law to be in alignment with the constitutional
protection of privacy and autonomy.

6. Assisted Reproductive Technology (Regulation) Bill, 2020 (Draft)

 Court: Not a court ruling, but a draft law that is still being
debated in India
 Issue: This proposed legislation aims to regulate ART,
including surrogacy, in India. It addresses issues such as the
eligibility of commissioning parents, the rights of surrogate
mothers, and the protection of children born through
surrogacy.
 Impact: If enacted, this law would provide a comprehensive
legal framework for regulating surrogacy and ART. It would
prohibit commercial surrogacy, allow only altruistic surrogacy
for heterosexual couples, and ensure that surrogate mothers'
rights are respected. The Bill is still in the discussion phase,

7
[2017] 10 S.C.R. 569
 but it is crucial for understanding future legal developments in
surrogacy law in India.

7. Prakash v. State of Rajasthan (2020) 8 :

 Court: Rajasthan High Court

 Issue: This case involved the issue of whether a surrogacy
contract was valid when it was made without following proper
legal procedures. The issue arose when the intended parents
sought legal recognition of the child born through surrogacy,
but the surrogacy was not altruistic, and the surrogate mother
was not properly compensated according to the law.
 Ruling: The Court ruled that the surrogacy arrangement was
not valid due to the absence of a legal framework being
followed. The case highlights the legal requirement for
surrogacy contracts to comply with the law and ethical
standards.

8. The Surrogacy (Regulation) Bill, 2016 (Supreme Court

Comments)

 Court: Supreme Court of India

 Issue: The Supreme Court made significant observations
regarding the prohibition of commercial surrogacy and the
introduction of the Surrogacy (Regulation) Bill, 2016.
 Ruling: The Court endorsed the draft bill and commented that
surrogacy should be limited to altruistic arrangements and
that commercial surrogacy should be banned. This was a
significant statement on the future direction of surrogacy law
in India.

9. Dr. Subhash Chandra v. Union of India (2019)

 Court: Delhi High Court

 Issue: This case involved a medical practitioner challenging
the legality of surrogacy practices in India, particularly related
to the practice of sex selection and the exploitation of
surrogate mothers.

8
AIR 2013 SUPREME COURT 1474, 2013 (4) SCC 668 ...
  Ruling: The Court held that surrogacy should be regulated
under strict ethical standards to prevent exploitation and
illegal practices, such as sex selection. The Court supported
the legislative push for a regulatory framework for surrogacy
to ensure ethical practices.

11. Jan Balaz v. Union of India (2016): The Supreme Court of

India ruled on the rights of foreign nationals in surrogacy
arrangements, particularly focusing on the issue of the
citizenship of children born through surrogacy. The Court held
that children born through surrogacy in India, where the
commissioning parents are foreigners, do not automatically
acquire Indian citizenship.
12.Shah v. Home Secretary (2016): This case examined the
legality of commercial surrogacy. The ruling pointed out that
surrogacy contracts that involve the exchange of money are
illegal under Indian law, reinforcing the ban on commercial
surrogacy.

Summary of Key Legal Points from these Cases:

1. Foreign Nationals and Surrogacy: Several cases, including

Baby Manji Yamada and Jan Balaz, have addressed issues
related to the rights of foreign nationals in surrogacy
arrangements. Courts have ruled that surrogacy contracts
involving foreign nationals should comply with Indian laws
and citizenship requirements.
2. Commercial Surrogacy: The shift toward banning commercial
surrogacy in India has been solidified by the Supreme Court’s
comments and various rulings, including those in Shah v.
Home Secretary (2016) and the Surrogacy (Regulation) Bill,
2016.
3. Surrogate Mother's Rights: Cases like Prakash v. State of
Rajasthan (2020) and K.S. Puttaswamy v. Union of India
(2017) emphasize the need for legal frameworks that protect
the rights of surrogate mothers and safeguard against
exploitation.
4. Ethical and Medical Standards: The courts have consistently
underscored the importance of ethical and medical standards
 in surrogacy arrangements, ensuring that surrogates are not
exploited and that the rights of the child are protected.

CONCLUSION :

Surrogacy has been legalized in several countries, including India,

where it has been permitted for quite some time. In India, surrogacy
is supported by various perspectives that highlight its positive
impacts, such as reducing prostitution, addressing issues of
unregistered marriages, preventing legal disputes, and fostering
advancements in medical science. Additionally, with the
commercialization of surrogacy, it has evolved into a thriving
industry, contributing significantly to the economy.

In contrast, surrogacy remains illegal in Indonesia, despite its

occurrence in certain parts of society. Although the practice of
assisted reproduction is technically possible, both ethical and legal
frameworks in the country are not conducive to surrogacy.
Furthermore, surrogacy contradicts Islamic values, which are
followed by the majority of Indonesia's population. As a result,
surrogacy faces significant challenges and limited prospects in this
predominantly Muslim nation.
REFERENCES :

1.Book Irianto, K, Panduan Lengkap Biologi Reproduksi Manusia,

Bandung: Alfabeta, 2014

2.M Septikasari, M Dwi. Kesehatan Reproduksi, Nuha Media,

Yogyakarta: 2009.

3.Muhammad Djumhana, Hukum dalam Perkembangan

Bioteknologi, Citra Aditya Bakti, Bandung: 1995.

4.Ratman, H. D, Surrogate Mother dalam Perspektif Etika dan

Hukum: Bolehkah Sewa Rahim di Indonesia?

5. Jakarta: Kompas Gramedia, 2012

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