Socio Legal Aspects of Surrogacy in India

SOCIO LEGAL ASPECTS OF SURROGACY IN INDIA
SUBJECT:
LEGAL METHODS
SUBMITTED BY:
AAGAM MEHTA
RIA SHAH
UMAIR MULTANI
VIDHI TAMAKUWALA
VIDHI THAKKAR
BBA, LL.B – BATCH 2014-19
MODULE LEADER:
KALPESH KUMAR GUPTA
ASSISTANT PROFESSOR OF LAW
SUBMITTED TO:
AURO UNIVERSITY OF HOSPITALITY & MANAGEMENT
SURAT, GUJARAT
APRIL, 2015

Socio-Legal: Surrogacy Page 2
TABLE OF CONTENTS
SR. NO. PARTICULARS PAGE NO.
1. Introduction 3
2. History 3
3.
3.1
3.2
3.3
3.4
Types of Surrogacy
Gestational Surrogacy
Using an Egg Donor
Altruistic surrogacy
Commercial surrogacy
4
5
5
5
4.
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
Surrogacy in Different Countries
Australia
Canada
France
Hungary
Israel
Japan
Netherlands and Belgium
United Kingdoms
United States
6
6
6
6
6
7
7
7
7
5.
5.1
5.2
5.3
5.4
5.5
Surrogacy in India
Introduction
ART Bill 2010
Landmark judgements on Surrogacy
Social Effect
Current Scenario
7
8
9
11
12
6. Downcast of Surrogacy 14
7. Conclusion 15
8. Bibliography 16

INTRODUCTION
A Jewish proverb states that God could not be everywhere so he made mothers. A pious
expression of a mother is given to a female when she gives birth to a child. Due to all worldly
changes happening on earth due to climatic changes, global warming and stuff alike, it has
taken a toll on human body. Nowadays many women are found who suffer from the problem
of infertility. Over a couple of centuries the desire to beget a child for an infertile couple was
being satisfied by adoption. But modern sciences has provided new opportunities or options
we can say to overcome adoption, that’s surrogacy which has resulted as a boon for those
childless couples who want their own child.
Surrogacy is a practice whereby a woman agrees to become pregnant by implanted embryo or
medically inseminated sperm and bear a child for another person or persons, to whom she
intends to transfer the child’s care at, or shortly after, birth and in return receives the
compensation for carrying and delivering the child.
HISTORY
While this may seem like a relatively new concept, in reality the process of surrogacy goes
back many hundreds or even thousands of years, with the first known case being written
about in the Bible and the story of Abraham and his wife Sarah who was infertile. However,
it was not until the late 1970's that surrogacy became a viable and more accepted – as well as
better documented - modern method for child bearing
How Modern Surrogacy Came About The first "official" legal surrogacy agreement was
enacted in the mid-1970 with the child who was referred to as Baby M. The same lawyer who
brokered this agreement went on to found the Infertility Centre, a company that arranges
hundreds of surrogate births every year. During that same time frame, surrogacy made the
national and international news with the world's first "test tube" baby, Louise Joy Brown.
Although this was not technically a surrogate mother situation, this event did pave the way
towards what is now known as gestational surrogacy – a practice that is used today for
implanting both sperm and egg in a laboratory to later be placed into the surrogate mother's
uterus. It wasn't until 1980 though, that the first paid traditional surrogacy arrangement was
conducted. In this case, the surrogate mother, a 37-year old woman, was paid $10,000 for the

successful delivery of a baby boy. It is for this reason that even though surrogacy can be a
very positive and rewarding experience for both the surrogate mother and the biological
parents, it is also important for those who intend to become surrogate mothers to be not just
physically prepared, but emotionally as well. Not long afterwards, in 1983, was the first
successful pregnancy done via egg donation. In this case, a woman was able to give birth to a
baby through the use of eggs that were donated from another. It was this event that later led
to the first gestational surrogacy in 1985.
Recent Surrogate History:
Over the years, surrogacy has become a much more popular process and procedure than it
was just a few decades ago. In fact, over the past dozen years, certain events have taken place
that has made surrogacy history. For example, in 2001 the oldest surrogate mother at that
time gave birth to her own grandchild, while in 2005; a 58-year old surrogate mother gave
birth to her own twin granddaughters.
TYPES OF SURROGACY
Understanding the Different Types of Surrogacy
While there are two Different types of surrogacy, gestational surrogacy and traditional
surrogacy, there are also different types of arrangements, agency arranged and independently
arranged. Also surrogacy may be done between strangers who never meet, persons who meet
only a few times, persons who meet and become quite close over the course and often after
the surrogacy, and those who are friends before ever entering a surrogacy arrangement or are
family members.
Gestational Surrogacy:
Most intended parents prefer gestational surrogacy because they feel more secure in knowing
the chances of the surrogate being able to keep their baby is slim to none. They also feel more
in control of the surrogacy and pregnancy in general because they are choosing the genetics
of their baby. An advantage to having an egg used by an ovum donor or the intended mother
is that for the surrogate mother, it separates the complex emotional issues of being a

gestational and genetic donor/mother. Many surrogate mother's find that their friends and
family are more receptive to their participation in a surrogacy because they more easily view
the child the surrogate carries as belonging to the intended parents due to it's genetic make
up.
Using an Egg Donor:
Often parents who choose to have a gestational surrogate carry their child cannot genetically
contribute to their offspring nor do they wish to have their surrogate mother be the genetic
mother. Intended parents in these situations usually rely on outside assistance via sperm and
or egg donation. While sperm donation has been around for hundreds of years egg donation is
relatively new. In this process a screened egg donor undergoes hormone therapy (usually
injections) over the course of many weeks which cause her ovaries to release more than one
egg. Between one and fifteen eggs are usually harvested during a surgical procedure. They
are then inspected for quality and either frozen for use later or immediately mixed with sperm
for the intended father or a sperm donor.
Altruistic surrogacy:
Altruistic surrogacy is a situation where the surrogate receives no financial reward for her
pregnancy or the relinquishment of the child (although usually all expenses related to the
pregnancy and birth are paid by the intended parents such as medical expenses, maternity
clothing, and other related expenses)
Commercial surrogacy:
Commercial surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a
child to maturity in her womb and is usually resorted to by well off infertile couples who can
afford the cost involved or people who save and borrow in order to complete their dream of
being parents. This procedure is legal in several countries including in India where due to
excellent medical infrastructure, high international demand and ready availability of poor
surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to

by the emotionally charged and potentially offensive terms "wombs for rent", "outsourced
pregnancies" or "baby farms".
SURROGACY IN OTHER COUNTRIES
Australia:
In Australia the surrogate mother is considered by the law as the legal mother of the child and
any surrogacy agreement giving custody to others is void and enforceable by law. In the
Australian Capital Territory arranging commercial surrogacy is a criminal offence. Although
northern territory has no legislation governing surrogacy at all. There are no future plans to
introduce laws on surrogacy. Usually couples who make surrogacy arrangements in Australia
must adopt the child rather than being recognised as birth parents particularly is surrogate
mother is married.
Canada:
Commercial surrogacy is prohibited under the Assisted Human Reproduction Act, 2004.
Altruistic surrogacy remains legal. In the province of Quebec, contracts that involve
surrogacy are unenforceable.
France:
In France, since 1994 any surrogacy arrangement whether it is commercial or altruistic is
illegal, unlawful, and prohibited by the law.
Hungary:
Commercial surrogacy is illegal in Hungary.
Israel:
Israel is 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 the gestational surrogacy under the “Embryo Carrying
Agreements Law.” Surrogacy arrangements are permitted only to Israeli citizens who share
the same religion

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.
Netherlands and Belgium:
Surrogacy is illegal in Netherlands and Belgium.
United Kingdom:
Surrogacy is legal in UK since 2009. Whilst it is illegal in UK to pay more than expenses for
surrogacy, the relationship can be recognised under Section 30 of Human Fertilization and
Embryology Act 1990.
United States:
Many states have their own state laws written on surrogacy. Most surrogates reside in state of
Florida and California due to the surrogacy-accommodating laws in these states. It is illegal
to hire surrogates in New York. At this point, the laws surrounding surrogacy are well
defined in state of Delaware.
SURROGACY IN INDIA
Introduction:
The supreme court of India by virtue of case, “Baby Manji vs. Union Of India”, has made
commercial surrogacy legalized in India. India is immerging as a leader in international
surrogacy. Surrogacy in India is much simpler and cost effective than anywhere else in the
world. There is no law governing the surrogacy ‘Surrogacy Agreement’, is the only base
which governs the parties to surrogacy. Therefore the commissioning parents are required to
be attentive while signing agreement, so that the surrogacy agreement is not held void in
court of law. Every agreement, should express purpose and situations, the need of surrogacy,
free will of surrogate, details about the surrogate and the terms on which the surrogate agrees
to gestate the child, etc.

Assisted Reproductive Bill 2010
Considering the growing number of surrogacy cases in India and the challenges that the
surrogacy would face in future, the government of India decided to come up with a law which
would govern the surrogacy and ART in India. A committee of experts was setup and the said
committee has now submitted a draft of the proposed bill to the government of India. The
said bill is still pending with government and has not yet been presented in the parliament.
The purposed draft namely ‘Assisted Reproductive Technologies’ bill 2010 has taken into
consideration various aspects of surrogacy and has built in safe guards for surrogate mothers.
The some of the salient features of ART Bill 2010 are as under:
1. The process of surrogacy and giving the womb on rent, as it is popularly called is
completely legal in India. Charging financial reimbursement for carrying the baby
of an Indian or foreign couple would be absolutely legal.
2. The bill defines the term ‘couple’ as two people living together and a sexual
relationship that is legal according to Indian legislation. Since court has already
given verdict in favour of homosexuality, a gay or lesbian couple can also go for
surrogacy and it will be termed legal
3. The age of surrogate mother has to be 21 to 35. The maximum number of ‘live
births’ allowed for her would be maximum 5, including her own children. The
number of donations would not be greater than six in the entire lifetime.
4. In the case of single parent opting for surrogacy, the baby will be legitimate child
for him or her.
5. In case the intended parents are engaged in live in relationship then the child
would be legitimate child of both.
6. Intended couple would bear the complete cost of pregnancy and pay remuneration
to the surrogate mother. They may give a contractual obligation under Indian
legislation.
7. In case of the intended couple being a foreign national, they have to submit the
surrogacy policy of their country and a certificate regarding nationality of the
surrogate child post birth. They also have to nominate a local guardian to take care
of surrogate mother during pregnancy.
8. Government certified ART banks to store complete details of surrogates and
donors. The certification to ART banks would be given by state boards. This

independent body would have authority to register, maintain and monitor the
functioning.
9. The determination of the sex of the baby and ‘selective child birth’ through
surrogacy is illegal.
10. Surrogacy as medium of pregnancy and child birth would be considered as legal
for the couples otherwise, proved to be incapable of give birth to a child and it is
not a ‘convenient mode’ of having a baby without readiness of beating pain of
pregnancy and delivery.
11. Commercial use of surrogacy for cloning or mass production would be strictly
prohibited.
LANDMARK JUDGEMENTS ON SURROGACY
Baby Manji Yamada vs. Union of India:
In the Landmark case Baby Manji Yamada v. Union of India, a Japanese couple, Dr. Ikufumi
Yamada and his wife, wished to have a baby and entered into a surrogacy contract with an
Indian woman in Anand, a city in the state of Gujarat where this practice was pioneered. The
couple went through matrimonial discord but the father still insisted on having custody of the
child. Under Indian Lawa single father cannot adopt a girl child. He sent his mother in his
stead and a petition was filed before the Supreme Court. The Government seemed to be
helpless in this matter as there were no laws governing the effect of surrogacy. The Apex
Court directed that the National Commission for Protection of Child Rights was the apt body
to deal with this issue.
Justice Arijit Pasayat and Justice Mukundakan Sharma of the Supreme Court held that the
father was the genetic father of the child and he was given custodial rights of the child. The
Government was instructed to issue the passport to Manaji Yamada and she returned with her
grand –mother. Most importantly, the Supreme Court held that the Surrogacy Agreement was
valid in India.
What is most noticeable in the Baby Manji Yamada case is that the stance of the Court was
not only pro-surrogacy it was also extremely pro-contract. The contract was held to be valid

and therefore of most importance even though what the Court granted went against a
particular legislation in the country.
Jan Balaz v. Anand Municipality:
More recently in the matter of Jan Balaz v. Anand Municipality, a German couple entered
into a contract with a surrogate mother named Marthaben Immanuel Khrishti. Twin children
were born. The German couple was working in the United Kingdom and the children
required Indian passports to travel. Since their citizenship was being litigated in the courts the
passport authorities withheld the passports. Germany, the parent state of the German couple
did not recognize surrogacy. The Supreme Court denied the passports but granted an exit
permit to the children and the German authorities decided to give the couple an opportunity
to adopt the children and fight for their rights.
The Supreme Court of India also recommended the emergent legislation of a law on
surrogacy. The Bench headed by Justice G.S. Singhvi and Justice C.K. Prasad said that no
surrogate child should undergo the difficulties faced by Nicolas and Leonard who were
already two years of age by the time this decision was made and had still not been granted
citizenship in any country.
It is clear that in the case of Jan Balaz the contract proved to be insufficient in demarcating
the rights of the parties and it also brought out residual issues such as citizenship and identity
that are matters of vital importance to the children but do not find place in the surrogacy
agreement.
In both the above case laws the courts take a very pro-contract stand possibly as a way of
encouraging commercial surrogacy, which contributes millions of dollars to India’s economy.
SOCIAL ISSUES
New reproductive technology claim to help human beings through creative interventions that
reduce suffering and have the potential to transform the society. The commercialization of
surrogacy however creates several social conflicts rather than resolving a few. It generates the
family pressure on pure women to offer their wombs for a price. In the other part in the world

like in India the debate is focus on the ethics of surrogacy rather than on the economic
advantage of any particular region. On the other hand the economic advantage is the main
criteria behind going for surrogacy. Majority of the women becoming surrogates are
extremely vulnerable due to poverty, lack of financial resources, low educational levels. For
them the financial gain is the key factor. This makes their economic exploitation much easier
for the agents for commissioning parents.
The surrogates often face the dilemma that being a surrogates is socially unacceptable when
the frankly accept monetary consideration. So rather than tell their neighbours that they gave
away their child, they tell them that the baby died.
As the surrogacy involves implantation of multiple foetuses, the unwanted foetus is aborted
during the course of development. The misuse of PNDT in the process can eliminate the
female foetus resulting into imbalance of sex ratio in the country.
There are cases where the surrogate mothers have refused to part with the baby. In other
cases the commissioning parents have refused to accept the child with the deformity. Baby
Manji’s case as there was divorce between the commissioning couple the problem arose as to
the custody of the new born baby. In many cases, the caesarean delivery needs to be
performed. For such surgery the consent of surrogate mother is to be obtained. Her refusal
may imperil the life of the child. Confusion also exists where a surrogate mother fails to take
standard care and precaution during pregnancy as a result of which harm is caused to the
foetus. The high aspirations of the intending parents are ruined because of this.
Surrogacy can also affect the children’s perception of the values and integrity of their family.
Secrecy and anonymity create a negative environment that affects human relations within and
outside families. It also involves the issues of children’s right to information about the
identity of their parents. Secrecy and anonymity are routed in the social value of the primacy
of ‘blood relations’. The present practices push such children into a search of identity, a sense
of shame and anger against their social parents.
Commercialization of surrogacy creates several social conflicts. Given the extreme
vulnerability, one-third of the Indian women due to poverty, exclusion from and
marginalization in labour and job markets, patriarchal social and family structures and low
educational levels, the financial gain through surrogacy become a key push factor. Since most

surrogate mothers are not from well-off sections and the motive primarily is monetary so they
are easily exploited by the agents working for commissioning parents. Secrecy and
anonymity creates a negative environment that affects human relations within and outside
families.
Cost involved in surrogacy: The relative costs involved in the surrogacy process are probably
the largest incentive for foreigners to travel to India. A commissioning party can expect to
pay $14,000 to $18,000 to a gestational surrogate in the United States Total costs for
contracting with a surrogate mother in the United States fluctuates between $59,000 and
$80,000. India’s current costs are markedly lower than American standards. In the country
where annual per capita income is $500, fees for surrogates are reported to range anywhere
from $2,500 to $7,000.
CURRENT SCENARIO IN INDIA
The concept of surrogacy in India is not new. Commercial surrogacy or "Womb for rent," is a
growing business in India. In India, English speaking environment and cheaper services
attract the willing clients.
Future projections of surrogacy practice range from opportunity to exploitation - from rural
women in India uplifted out of poverty to a futuristic nightmare of developing country baby
farm. In case of surrogacy in India, it is hard to tell that whether these women are exercising
their own personal rights or whether they are forced to become surrogate mothers due to their
mother-in-law's or husband's desire to fulfil material and financial needs.
Opponents of surrogacy argue that the practice is equivalent to prostitution and by virtue of
that similarity; it should be disallowed on moral grounds. Surrogacy contracts are
"dehumanizing and alienating since they deny the legitimacy of the surrogate's perspective on
her pregnancy. Surrogate mother tries to avoid developing a special bond with the child in
her and views the pregnancy as merely a way to earn the much-needed money. The payment
for bodily services dehumanizes the surrogate mother and exploits her reproductive organs
and capability for personal gains of the wealthy.

In fact, outsourcing surrogacy is an exploitative practice in India. Currently, no law exists to
protect the surrogate mother in case of birth complication, forced abortion etc.
Since 2002, commercial surrogacy has almost become legal in India and India has become a
sort of leader in it. This is the reason that has led critics to allege that surrogacy business is
exploiting poor women in country like India already having high maternal mortality ratio.
According to estimates, which might be conservative - the business of surrogacy in India is
already touching $445-million a year.
Surrogate motherhood as an arrangement, in which a woman takes no ownership of the child
born, has raised moral, ethical social and legal questions about both woman and the
"Commissioned baby." According to legal experts" if surrogacy becomes an avenue by which
women in richer countries choose poorer women in our country to bear their babies, then it is
economic exploitation, a kind of biological colonization."
The Ministry of Women and Child Development is examining the issue of surrogate
motherhood in India for bringing up a comprehensive legislation. A draft legislation on
surrogacy-prepared by the Indian Council of Medical Research (ICMR) has recommended
strict penalties for offenders and a tight regulation on Assisted Reproductive Techniques
(ART). The draft law restricts the number of embryo transfers a mother can go through to 3
times for the same couple, if the first two attempts fail and it also adds that no woman should
act as a surrogate for more than three live births in her life. In fact, these are the only
guidelines framed by the ICMR and the Ministry of Health and Family Welfare in 2005.
ICMR guidelines, states, "A relative, a known person as well as a person unknown to the
couple may act as a surrogate mother for couple. In case of a relative acting as a surrogate,
the relative should belong to the same generation as the woman desiring the surrogate." The
experts believe that surrogacy propels childless couples needlessly toward commercial
surrogacy. Section 3.10.5 of the guidelines states that "a surrogate should be less than 45
years" being the upper age without mentioning the minimum age to be surrogate. So does that
mean an 18 year old or someone even younger, can become surrogate mother? Before
accepting a woman as a possible surrogate for a particular couple, the ART Clinic must
ensure (and put on record) that the woman satisfies all the testable criteria to go through a
successful full term pregnancy." These guidelines are skewed and thoughtless. The bifurcated
role of woman in surrogate arrangements is prompting renewed assessment of the meaning of
motherhood and designation of maternal rights.

DOWNCAST OF SURROGACY
 In a developing country like India where still poverty is a major concern the poorer
husbands are driven to direct their wife for surrogacy as an income generating option.
 Pregnancy affects the woman’s health and one cannot know all the long-term
consequences of repeated pregnancies.
 Careful consideration must be given to the medical, emotional, legal and practical
issues, and to the implications of surrendering the child at birth. Thought must also be
given to the effect on any existing children, the potential surrogate mothers partner,
family and friends.
 In case of divorce of intended parents before the completion of surrogacy the custody
of child remains a question mark.
 Complicated situation arises when both parties refuse to take custody of child
specifically when the child is born abnormal.
 Care should be taken that the surrogacy should be resorted by those couples who are
facing medical unfitness and not for cosmetic purpose.
 Proper laws should be framed in order to protect for interest of surrogate mother and
commissioning parents.
 A surrogacy arrangement should provide for financial support for surrogate child in
the event of death of 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.
CONCLUSION
In the culturally enriched country like India concerns about the overuse and inappropriate
use of commercial surrogacy facilitated by unscrupulous fertility clinics are above all.
Surrogacy is an alternative to other fertility treatments in a bid to expand the industry and
make greater profits, and fears loom that surrogacy could spin out of control. In
developing country like India where poverty is playing an important factor, women may
be compelled by their husbands of in-laws to become surrogates. Instances like breach of
contract either by surrogate mother or commissioning couple should not be neglected.

Proper guidelines should be given to control following issues:
 In absence of independent agency issues namely welfare of surrogate child is at
stake.
 Refusal on part of surrogate mother to give a child to commissioning parents out
of mental breakdown of mother.
 Several social and legal questions like whether it amounts to sale of child, breach
of contract by denial of mother from handling over child, etc. should be settles.
 The Union Women and Child Development Ministry is clearly in favour of
monetary compensation for the surrogate mothers.
It’s high time to enact the laws otherwise India would be a tourism hub for surrogacy.
Surrogacy carry social stigma in the society as it is equated with prostitution and by
virtue of that it is argued that it should be disallowed on moral grounds. Surrogate
mothers are kept in isolation from families and allowed to meet families in weekends,
which are against the human rights. Hence, there are number of ethical, social, legal
and psychological issues associated with surrogacy, which require urgent need for
framing and implementation of law.
BIBLIOGRAPHY
http://ibnlive.in.com/news/india-preferred-destination-for-surrogacy-due-to-low-cost-but-
practice-remains-unregulated/506888-3-238.html -accessed on 17th April
http://www.ijph.in/article.asp?issn=0019-
557X;year=2013;volume=57;issue=2;spage=65;epage=70;aulast=Anu%2C -accessed on 17th
April
http://www.indiasurrogacy.in/legal-aspect/ -accessed on 18th April
http://www.wscpedia.org/index.php?option=com_content&view=article&id=256:surrogacy-
social-legal-a-commercial-implications-2011&catid=4 -accessed on 18th April
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3531011/ -accessed on 18th April
http://surrogacycontroversy.blogspot.in/ -accessed on 22nd April
http://www.ijph.in/article.asp?issn=0019-
557X;year=2013;volume=57;issue=2;spage=65;epage=70;aulast=Anu%2C -accessed on 23rd
April

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