SURROGACY

Ahmar Afaq
 INTRODUCTION
• Every individual desires to have a child but for many it remains a distant
dream due to one reason or the other.
• These desiring ones have found solace in the instruments like adoption
and surrogacy to cherish their dreams.
• In the recent times the concept of surrogacy found great acceptability
among the desiring couples as well as singles, as in surrogacy one can
have a child somehow biologically connected to him or her which was not
possible in adoption.
• But it has also led us to the complex legal structures.
 SURROGACY
• Surrogacy is an important method of assisted human procreation for those
who cannot, or choose not, to procreate in the traditional manner.
• Surrogacy has its origin from Latin word ‘Surrogatus’ meaning a ‘substitute’.
• It’s a practice whereby one woman bears and gives birth to a child for an
intending couple with the intention of handing over such child to the
intending couple after the birth.
• The woman who bears the child is known as the surrogate mother and the
person or persons to whom the child is surrendered are known as the
commissioning or intended parent or parents.
• Traditional and Gestational Surrogacy.
• Commercial and Altruistic Surrogacy.
 LEGAL AND ETHICAL CONCERNS
• 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.
• Most of the criticisms against surrogacy are based on various ethical,
moral, religious and legal grounds.
• 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.
• 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.
 LEGAL AND ETHICAL CONCERNS
• many critics of surrogacy have focused on the notion that these
arrangements reduce women to the value of their wombs.
• 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
birth is unnatural and psychologically damaging.
• 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.
• A similar argument has been made that surrogacy should be banned
because of the potential physical, psychological, and symbolic risks to the
resulting children.
 LEGAL AND ETHICAL CONCERNS
• 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.
• Are surrogacy agreements valid?
• Baby M case, Johnson v. Calvert, Re TT case, Mr. & Mrs. W case, Re
paternity of FTR Case
• Will it amount to adultery/VSI?
• Orford v. Orford, Mac Lennan v. Mac Lennan
• Posthumous conceived heir?
• Hecht vs. Superior Court
 LEGAL AND ETHICAL CONCERNS
• If the Husband is in the vegetative state, can the wife, with the help of medical
practitioners extract the sperm of the husband?
• Pre-implantation Genetic Diagnosis (PGD)
• Baby Gammy’s Case
 POSITION IN INDIA
• Baby Manji Yamanda v. Union of India
• Jan Balaz v. Anand Municipality
• [Link] vs Chennai Port Trust
• Indian Council of Medical Research (ICMR) Guidelines, 2005.
• Law Commission Report by Government of India Report No. 228, Need for
Legislation to Regulate ART Clinics as well as Rights & Obligations of Parties
to Surrogacy year 2009.
• Home Ministry Regulations on Surrogacy to FRRO – VISA, January 2013.
• Government Order 2015
• Previously by number of ART (Regulation) Bills and now the Surrogacy
(Regulations) Act, 2021.
 SILENT FEATURES
• TYPE OF SURROGACY PERMISSIBLE UNDER THE Act:
The act doesn’t permit commercial surrogacy and permits only altruistic
form of surrogacy. In altruistic form, the medical and insurance expenses
are borne by the intending unlike in commercial surrogacy where the
surrogate mother is paid over and above these expenses.
• The Act permits surrogacy only in the following cases:
a. The intending couples proven to suffer from infertility;
b. Only altruistic form of surrogacy is permissible;
c. It shouldn’t be for commercial purposes;
d. Not for the purpose of producing children for sale, prostitution or other
forms of exploitation.
• ELIGIBILITY CRITERIA FOR INTEDING PARENTS:
The couple must have a certificate of recommendation both of which are given is the
following conditions are fulfilled:
a. The couple being Indian citizens and married for at least five years;
b. They must be between 23 to 50 years old (wife) and 26 to 55 years old (husband);
c. They must not have any surviving child (biological, adopted or surrogate), except if the
child is mentally or physically challenged or suffers from a life threatening disorder;
d. such other conditions that may be specified through regulations
e. An intending woman as defined in Section 2(s) of the Act is a ‘widow’ or a
‘divorcee’ who is between 35 to 45 years of age and intends to avail this
service.
• ELIGIBILITY CRITERIA FOR SURROGATE MOTHER:
The surrogate mother too has to obtain a certificate of eligibility after the following
conditions are fulfilled:
a. no woman shall act as a surrogate mother by providing her own gametes;
b. Is an ever married woman having a child of her own;
c. Is in the age group of 25 to 35 years old;
d. no woman shall act as a surrogate mother more than once in her lifetime; and
e. a certificate of medical and psychological fitness for surrogacy and surrogacy
procedures from a registered medical practitioner.
• Parentage of the child:
The child so born (out of surrogacy) shall be deemed to be a biological child for the
intending parents.
• In case of abortion of the surrogate child, the same must be undertaken by the consent of
the surrogate mother and the appropriate authority coupled with a complaint under the
MTPA Act.
• Appropriate authorities to be formed under the regulation:
National and State Surrogacy Boards need to be formulated and other appropriate
authorities to monitor the clinics etc.
• Offences under the Act:
a. Undertaking or advertising commercial surrogacy;
b. Exploiting the surrogate mother;
c. Selling or importing human embryo or gametes for surrogacy.
Refer Sec. 39, 40, 41.
 CONSTUTIONAL
PERSPECTIVE
 Article 14:

• Article 14 of the Constitution of India states equality before law and equal protection of law.

• The Doctrine of Reasonable Classification has been interpreted to be under the provisions of
Article 14 through judgements, mentions that the class legislation shall be forbidden while
enacting a law, also, the classification shall stand the test of intelligible differentia with the
object of the Act being in nexus to the classification made.

• The legislation must not make improper discrimination by conferring privileges upon a ‘class of
persons’ or arbitrarily selected persons without special characteristics that differentiate them
from the rest.
• The Act places such restrictions which do not qualify the test of reasonable classification due to the limited and
conditional access to some married couples falling within the prescribed age limit for the intended couple and the
surrogate mother.

• The Act also disqualifies people from undergoing surrogacy on the basis of their nationality, marital status, time period
of marriage, age of the people involved, sexual orientation and other such parameters.

• The main questions which arises here is that why is the Act restricting only to married couples? Why is there a
prescribed maximum age for surrogacy when the same is not prescribed for adoption?

• Why is it not extended to unmarried couples or couples who are in nature of marriage, to homosexual couples, to
single parents?

• There is no mention of the Divorcees or widow or widowers in the Act.

• Thus, Article 14 of the individuals who wish to go for surrogacy is clearly violated.
Article 19:

• Right to Profession is one of the freedoms guaranteed by the Constitution of

• With Commercial Surrogacy not being valid, the clinics will be affected.

• Therefore, the Right to Profession of Surrogate mother is violated.

• Consent plays an important role.

• The Constitution of India does not directly deal with surrogacy but has been
included in the widest ambit of Article 21 through various judicial pronouncements.

• The right over own body along with right over reproduction has been
provided under Right to privacy, which is identified as a fundamental right by the
Supreme Court of India under Article 21.

• Surrogacy requires a certificate of essentiality which is violative of their Right to

“Inability to conceive within five years of unprotected coitus or other proven medical condition
preventing a couple from conception.”

• Either one or both have to prove their infertility, which is directly in violation of their Right to
Privacy.

• On the face of it, if the intending parents are infertile, what is the need for providing a certificate
for the same?

• Waiting period of 5 years is another criticism of the Act. Women are harassed for such
period since they are blamed for not being able to conceive. Therefore, this waiting period is
unreasonable.

• Here, the Right of the woman over her reproductive choice is violated. No force should be used
upon a woman to conceive a child.
• It is beyond the powers of the State (legislative interference) to direct the citizens to opt
for any particular reproductive method.

• Right to Life does not mean mere physical existence but right to live with dignity. The word
‘dignity’ implies dignity even after death. Every citizen has a right to lead a dignified life.

• Furthermore, right to have a family of his/her own has also been incorporated under Article
21 of the Constitution.

• However, the provisions of the act do not permit certain groups of people to enjoy their right to
have a family of their own.

• The word ‘close relative’ is not defined anywhere in the Act.

• It has been argued that the term ‘close relative’ be replaced by the word ‘any woman.’ But, the
object of the Bill is to protect woman from exploitation. In that case, why would any woman
act as a surrogate if she is not benefitted from it? The Act is silent on that part.
Case: R. Rajgopal v. State of Tamil Nadu

• It was held that that the ‘right to life’ includes ‘right to privacy’. An individual has the right

to decide over matters such as family, marriage, procreation, motherhood, childbearing among

other things.

Case: B.K. Parthasarthi v. Government of Andhra Pradesh

• It was held that the right over decision of reproduction falls with the right to privacy.

The right over control of the body on reproductive matters is the personal choice of the

individual.