Surrogacy in India: Legal and Ethical Issues
Dr. Mudasir A. Bhat1
I. Introduction
In the age of globalisation, from computer support and hotel
reservations to laboratory results and radiographic interpretations, it seems
everything can be outsourced. One would not think so with parenthood,
especially motherhood, a fundamental activity that humans have historically
preserved as personal and private. However, in this modern era, the advent
and accessibility of assisted reproductive technologies and the ease with
which they have traversed global borders, has fundamentally altered the
meaning of childbearing and parenting. The child now is not only procreated
through conception from sexual intercourse, gestation, or adoption, but also
with the help of complex reproductive technologies.2 Surrogate parenting is
an arrangement in which one or more persons, typically a married infertile
couple (the intended rearing parents), contract with a woman to gestate a
child for them and then to relinquish it to them after birth. Surrogate
parenting is also sometimes referred to as contract pregnancy.3
II. Conceptual Dimensions
Mythological surrogate mothers are well known in India. Yashoda
played mother to Krishna though Devki and Vasudeva were the biological
parents. Likewise, in India mythology Gandhari made Dhritarashtra the
proud father of 100 children though he had no biological relation with them.4
In this modern era, glamour now promotes surrogacy. British pop
star Elton John and his Canadian film-maker partner David Furnish became
parents of a baby boy born to a surrogate mother in California while over
own Indian film star Amir Khan and Kiran Rao obtained a child through
surrogacy aided by in-vitro fertilization.5
1
Assistant Professor, School of Legal Studies, Dept. of Law, Central University of
Kashmir, Srinagar.
2
Sayantani DasGupta & Shamita DasGupta, Globalisation and Transnational
Surrogacy in India: Outsourcing Life, Lexington Books, (2014), p. xiii.
3
For details see: http://www.iep.utm.edu/surr-par/, (Accessed on 28.01.215).
4
Anil Malhotra & Ranjit Malhotra, Surrogacy in India - A Law in the Making,
Universal Law Publishing Co. Pvt. Ltd., (2013), p. 29.
5
Id. at 8.
142
Surrogacy has become an essential component of the flourishing
larger fertility industry. Not surprisingly, commercial surrogacy has assumed
industrial proportions and India has emerged as the global destination for not
only ART procedures, but also surrogate arrangements. In the absence of any
kind of regulatory and monitoring mechanism of ARTs in India, it is difficult
to arrive at the exact magnitude in regard to the existing surrogacy business.
Currently, there are no international and national estimates regarding the
number of children born through surrogacy procedures. However, sharp rise
in the number of surrogacy arrangements are significant indicators of the
spread of the commercial surrogacy industry.6
III. Types of Surrogacy
Surrogacy is often portrayed by the fertility industry as a win-win
situation for the intended parents (IPs) as well as the surrogate, with the
clinics and providers being the nucleus of the arrangements. The transaction
is seen as equitable: the commissioning couple gets the child they
desperately want and the surrogate receives the amount of money that might
not be otherwise possible for her or her family to obtain.7 The surrogacy
procedures are very complicated and need expertise. The assisted child
conception in surrogacy clinics can be done in any one of the following
procedures:
Gestational Surrogacy
A surrogate is implanted with an embryo created by IVF, using the
egg and sperm of the intended parents. The resulting child is genetically
related to the intended parents, and genetically unrelated to the surrogate.8
Gestational Surrogacy and Egg Donation
A surrogate is implanted with an embryo created by IVF, using
intended father's sperm and a donor egg. The resulting child is genetically
related to intended father and genetically unrelated to the surrogate.9
Gestational Surrogacy and Donor Sperm
A surrogate is implanted with an embryo created by IVF, using
intended mother's egg and donor sperm. The resulting child is genetically
related to intended mother and genetically unrelated to the surrogate.10
6
Supra note 1 at 2.
7
Id. at 3.
8
For details see: http://en.wikipedia.org/wiki/Surrogacy, (Accessed on 29.01.215)
9
Ibid.
10
Ibid.
143
Gestational Surrogacy and Donor Embryo
A donor embryo is implanted in a surrogate; such embryos may be
available when others undergoing IVF have embryos left over, which they
opt to donate to others. The resulting child is genetically unrelated to the
intended parent(s) and genetically unrelated to the surrogate.11
Traditional Surrogacy
This involves naturally or artificially inseminating a surrogate with
intended father's sperm via IVF or home insemination. With this method, the
resulting child is genetically related to intended father and genetically related
to the surrogate.12
IV. Indian Council of Medical Research Guidelines
The Indian Council of Medical Research has given guidelines in the
year 2005 regulating Assisted Reproductive Technology procedures. The
Law Commission of India submitted the 228th report on Assisted
Reproductive Technology13 procedures discussing the importance and need
for surrogacy, and also the steps taken to control surrogacy arrangements.14
The following observations had been made by the Law Commission of
India:
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.15
11
Ibid.
12
Ibid.
13
On 5th of August, 2009 the Law Commission of India submitted the 228th Law
Commission Report titled “Need for Legislation to regulate Assisted
Reproductive Technology Clinics as well as Rights and Obligations of parties to
a Surrogacy” to the Union Minister of Law and Justice, Ministry of Law and
Justice, Government of India. The report expressed the view of the Law
Commission on the Indian Counsel for Medical Research Guidelines 2005 on
Surrogacy, the draft Assisted Reproductive Technology (Regulation) Bill and
Rules 2008 and the Seminar on “Surrogacy – Bane or Boon”. The report had also
made recommendations to be kept in mind while legislating on surrogacy.
14
For details see: http://en.wikipedia.org/wiki/Commercial_surrogacy_in_India,
(Accessed on 28.01.215)
15
Ibid.
144
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.16
A surrogacy contract should necessarily take care of life insurance
cover for surrogate mother.17
One of the intended parents should be a donor as well, because the
bond of love and affection with a child primarily emanates from
biological relationship. Also, the chances of various kinds of child-
abuse, which have been noticed in cases of adoptions, will be
reduced. In case the intended parent is single, he or she should be a
donor to be able to have a surrogate child. Otherwise, adoption is the
way to have a child which is resorted to if biological (natural)
parents and adoptive parents are different.18
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.19
The birth certificate of the surrogate child should contain the
name(s) of the commissioning parent(s) only.20
Right to privacy of donor as well as surrogate mother should be
protected.21
Sex-selective surrogacy should be prohibited.22
V. The Assisted Reproductive Technology (Regulation) Bill, 2013
To regulate the mushrooming business of commercial surrogacy
cases in India and the challenges that the surrogacy will face in the future,
the Government of India decided to come up with a legislation which will
govern the surrogacy in India. The Assisted Reproductive Technology
(Regulation) Bill, 2013 is an amended version of the draft Bills of 2008 and
2010, which themselves were based on the guidelines, framed by the Indian
16
Ibid.
17
Ibid.
18
Ibid.
19
Ibid.
20
Ibid.
21
Ibid.
22
Ibid.
145
Council of Medical Research (ICMR) in 2005.23 The said bill is still pending
with the government and has not yet been presented in the parliament. The
proposed draft has taken into consideration various aspects of surrogacy.
Some of the features of the proposed Bill are as under:
Constitution of an authority at National level and State level to
register and regulate the IVF clinics and ART clinics.24
Registration and accreditation of ART clinics.25
Creation of a forum to file complaints for grievances against clinics
and ART clinics.26
Imposing duties and responsibilities on the clinics and ART clinics.27
Regulations for sourcing, storage, handling, record keeping of
Gametes, Embryos and other human reproductive materials.28
Placing rights and duties on patients, donors, surrogates and
children.29
Imposing stringent penalties for breach of the duties and
regulations.30
VI. The Critical Evaluation of the ART Bill, 2013
It is not wrong to say, if we call India as 'surrogate motherhood
capital' of the world. India has become a favourite destination for the
childless couples to get their child procreated by way of assisted
reproductive techniques on cheap prices. In order to regulate the booming
commercial surrogacy in India the Assisted Reproductive Technology
(Regulation) Bill, 2013 is a welcome step in this direction. However,
pending bill before the parliament is not free from loopholes.
First and foremost it lacks setting the standards for medical practice
and completely ignores the regulation of the third party agents who play
pivotal role in arranging surrogates such as surrogacy agents, tourism
operators and surrogacy home operators. The present draft defines “Couple”
as a relationship between a male person and female person who live together
23
For details see: http://indianexpress.com/article/india/india-others/art-bill-on-
ivf-may-come-up-in-winter-sess ion/, (Accessed on 29.01.2015).
24
Assisted Reproductive Technology (Regulation) Bill, 2013, Sections 3-12.
25
Id. Section 13.
26
Id. Section 16.
27
Id. Sections 20-25.
28
Id. Sections 26-29.
29
Id. Sections 32-36.
30
Id. Sections 37-42.
146
in a shared household through a relationship in the nature of marriage.
Therefore, the Bill has confined itself to provision of ARTs within a hetero
normative framework. It is also clear that as per the definition gay couple(s)
cannot access ARTs in India, once the Bill is implemented. The current
clause in the Draft Bill is discriminatory, baseless, and a violation of rights
to equality, freedom, and reproduction. The Draft Bill should clearly list the
various health risks and adverse outcomes of these technologies. The present
draft does mention that ART procedure carry health risks both to the mother
and child, there is no listing of the risks and adverse outcomes of these
technologies for children.31
VII. International Perspective
The legal aspects surrounding surrogacy are complex, diverse and
mostly unsettled. In most of the countries, the woman giving birth to a child
is considered as the child's legal mother. However, in very few countries, the
Intended Parents (IP's) are recognized as the legal parents from birth by the
virtue of the fact that the surrogate has contracted to give the birth of the
child for the commissioned parents.32 The position of surrogacy laws in
various countries may be summarised as under:
VII.I. Australia
In all the states of Australia, the surrogate mother is considered by
the law to be the legal mother of the child and any surrogacy agreement
giving custody to others is void and unenforceable in the courts of Law. In
addition in all states and the Australian Capital Territory arranging
commercial surrogacy is a criminal offence. Usually couples who make
surrogacy arrangements in Australia must adopt the child rather than being
recognized as birth parents, particularly if the surrogate mother is married.
After the announcement, Victoria changed their legislation since January 1st,
2010, under the Assisted Reproductive Treatment Act, 2008, to make
altruistic surrogacy within the state legal, however commercial surrogacy is
still illegal.33
VII.II. Canada
Altruistic surrogacy remains legal in Canada. However, commercial
surrogacy is prohibited under the Assisted Human Reproduction Act, 2004.34
31
Arti Dhar, Gaps in Surrogacy Bill, The Hindu, October 27, 2013.
32
For details see: http://www.surrogacylawsindia.com/legality.php?id=%207
&menu_id=71, (Accessed on 30. 01.2015)
33
Ibid.
34
Ibid.
147
VII.III. France
In France, since 1994 any surrogacy arrangement whether it is
commercial or altruistic is illegal, unlawful and prohibited by the law.35
VII.IV. Israel
Israel the first country in the world to implement a form of state-
controlled surrogacy in which each and every contract must be approved
directly by the state. In March 1996, the Israeli government legalized
gestational surrogacy under the "Embryo Carrying Agreements Law."
Surrogacy arrangements are permitted only to Israeli citizens who share the
same religion. Surrogates must be single, widowed or divorced and only
infertile heterosexual couples are allowed to hire surrogates. Due to the
numerous restrictions on surrogacy under Israeli law, the Israeli intended
parents have turned to international surrogacy.36
VII.IV. Japan
In March 2008, the Science Council of Japan proposed a ban on
surrogacy and said that doctors, agents and their clients should be punished
for commercial surrogacy arrangements.37
VII.V. United Kingdom
Surrogacy arrangements have been legal in the United Kingdom
since 2009. Whilst it is illegal in the UK to pay more than expenses for a
surrogacy, the relationship can be recognized under Section 30 of the Human
Fertilization and Embryology Act, 1990 under which a court may make
parental orders similar to adoption orders.38
VII.VI. United States of America
Many states have their own state laws written regarding the legality
of surrogate parenting. It is most common for surrogates to reside in Florida
and California due to the surrogacy-accommodating laws in these states.
With the accommodating laws of the State of California and the long
overseas deployments of husbands, wives have found surrogacy to be a
means to supplement military incomes and to provide a needed service. It is
illegal to hire a surrogate in New York, and even embryonic transfers may
not be done in New York.39
35
Ibid.
36
Ibid.
37
Ibid.
38
Ibid.
39
Ibid.
148
VIII. Legal Issues involved in Surrogacy
As of 2013, locations where a woman could legally be paid to carry
another's child through IVF and embryo transfer included India, Georgia,
Russia, Thailand, Ukraine and a few U.S. states.40 The legal aspects of
surrogacy in any particular jurisdiction tend to hinge on a few central
questions:
Are surrogacy agreements enforceable, void or prohibited? Does it
make a difference whether the surrogate mother is paid (commercial)
or simply reimbursed for expenses (altruistic)?41
What, if any, difference does it make whether the surrogacy is
traditional or gestational?42
Is there an alternative to post-birth adoption for the recognition of
the intended parents as the legal parents, either before or after the
birth?43
Ethical Issues involved in Surrogacy
Ethical issues that have been raised with regards to surrogacy
procedures include:
To what extent should society be concerned about exploitation,
commodification, and/or coercion when women are paid to be
pregnant and deliver babies, especially in cases where there are large
wealth and power differentials between intended parents and
surrogates?44
To what extent is it right for society to permit women to make
contracts about the use of their bodies?45
• To what extent is it a woman's human right to make contracts
regarding the use of her body?
• Is contracting for surrogacy more like contracting for
employment/labor, or more like contracting for prostitution, or
more like contracting for slavery?
• Which, if any, of these kinds of contracts should be enforceable?
• Should the state be able to force a woman to carry out "specific
performance" of her contract if that requires her to give birth to
40
Supra note 7.
41
Ibid.
42
Ibid.
43
Ibid.
44
Ibid.
45
Ibid.
149
an embryo she would like to abort, or to abort an embryo she
would like to carry to term?
What does motherhood mean?46
• What is the relationship between genetic motherhood,
gestational motherhood, and social motherhood?
• Is it possible to socially or legally conceive of multiple modes of
motherhood and/or the recognition of multiple mothers?
Should a child born via surrogacy have the right to know the identity
of any/all of the people involved in that child's conception and
delivery?47
Judiciary on Surrogacy
The Hon'ble Supreme Court of India in Baby Manji Yamada v.
Union of India48 took due notice that in cases of “commercial surrogacy,” an
intended parent may be a single male. The Court had the occasion to
consider the petition of a Japanese grandmother wanting issuance of a travel
document for her Japanese divorced son’s daughter. In another case decided
by the Gujarat High Court in Jan Balaz v. Union of India49, the decision of
the High Court holding that babies born in India to gestational surrogates are
Indian citizens and are entitled to Indian passports has been stayed by the
Supreme Court. However, the twin German children in the case were
permitted to leave India upon the directions of the Apex Court.
The main issue of nationality and citizenship, being of grave
concern, is still hanging in air. According to the guidelines issued by the
Ministry of Home Affairs in July 9, 2012, surrogacy is restricted to foreign
nationals; i.e. a man and a woman married for at least two years would be
required to take a medical visa for surrogacy in India. As of now, even
though surrogacy is an administrative concern and in the domain of the
Ministry of Health, it has been decided that till the enactment of a law on the
ART Bill, 2013, the guidelines issued by the MHA will prevail till then.
Hence, foreign single parent surrogacy is barren. Restricting surrogacy to
infertile Indian married couples only, and debarring all foreigners other than
OCIs, PIOs and NRI married couples, is a turnaround in the thought
process.50
46
Ibid.
47
Ibid.
48
AIR 2009 SC 84.
49
AIR 2010 Guj 21.
50
Anil Malhotra, Ending Discrimination in Surrogacy Laws, The Hindu, May 3,
2014.
150
Very recently Supreme Court in Stephanie Joan Becker v. State51
permitted a single 53-year-old lady to adopt a female orphan child aged 10
by relaxing the rigour of the guidelines of the Central Adoption Resource
Authority (CARA). It said the proposed adoption would be beneficial to the
child as experts were of the view that the adoption process would end in
successful blending of the child in the U.S. Likewise, the court in Shabnam
Hashmi v. Union of India52, upheld the recognition of the right to adopt and
to be adopted as a fundamental right. It held that every person, irrespective
of the religion he/she professes, is entitled to adopt. The latest verdict of the
Supreme Court recognising transgenders as the third gender says
“discrimination on the basis of sexual orientation or gender identity includes
any discrimination, exclusion, restriction or preference, which has the effect
of nullifying or transposing equality by the law or the equal protection of
laws guaranteed under our Constitution.” Clearly, legal recognition means
that they would be entitled to rights of adoption, succession, inheritance and
other privileges under law.53
Conclusion
To sum up, it is pertinent to discuss in detail the various dimensions
of the surrogacy arrangements before the parliament passes a pending bill on
Assisted Reproductive Techniques. The Government of India should
constitute a body of experts with the joint assistance of the Ministry of Home
Affairs (MHA) and the Ministry of Health and Family Welfare besides
involving legal experts to stream line the thought process in carving out a
policy decision of the Government of India by taking a uniform and
unanimous decision on various aspects of commercial surrogacy.54 The ban
on the mushrooming growth of the surrogacy procedures in our country is
not a solution to the issue. The conception of child by way of assisted
reproductive techniques is a hope of infertile couples. However, commercial
surrogacy needs to be regulated in a holistic approach by enacting a law with
proper checks and balances.
51
(2013) 12 SCC 786.
52
(2014) 4 SCC 1.
53
Supra note 49.
54
Supra note 3 at 109.
151
