regulating Surrogacy:

Critical analysis
(SYNOPSIS)

UDAY VEER SINGH KAMBOJ

Int. B.A.llb (Hons.) (Specialization in energy laws)

R450212114

Submitted under the guidance of: Ms. Shipra Chauhan (Asst. Professor)

This dissertation is submitted in partial fulfilment of the degree of

B.A., LL.B. (Hons.)

(2012-2017)

College of Legal Studies

University of Petroleum and Energy Studies
Dehradun
2017
 STATEMENT OF PROBLEM

The study of the following subject matter is a result of a comprehensive research revolving
around the topic of Surrogacy titled as: REGULATING SURROGACY: CRITICAL ANALYSIS.
The first documented surrogate pregnancy was recorded in 1976 wherein which a method of
reproduction was explored with the assistance of a lady (termed as surrogate mother) who agreed
to give birth to a child on behalf of the couple. With advent of time, as the term globalization and
liberalization became more prevalent, this technique proved to be bliss for the barren couples
who faced complications in conceiving or for women who couldnt conceive. Gradually with the
technological advancements, surrogacy became more popular and this technique proved to be a
bane. With passage of time, surrogacy became commercialized; it became a business and was
hence introduced with more fanciful terms known as Commercial Surrogacy or Wombs for
Rent or Baby Farms. 21st century onwards, international surrogacy became a steadily
growing industry wherein which a child was born out of a surrogate mother in one country with
genetic or intended parents from another country. Since this technique widened its scope,
therefore, it widened the complexities also. Soon the legality of Surrogacy came under question
since many legal issues started arising from such surrogacy agreements or contracts like:

The parentage of the child,

Citizenship,

Immigration, and

Many other contractual issues.

Different countries having different approach with regard to the legislations regarding surrogacy
arrangements, led to various conflict in laws. Many countries legalized surrogacy but many
illegalized the same whereas few countries stuck to the concept of altruistic surrogacy only.
 SURVEY OF EXISTING LITERATURE/ LITERATURE REVIEW

PRIMARY SOURCES

INDIAN COUNCIL FOR MEDICAL RESEARCH GUIDELINES:

ICMR guidelines 2005 on Assisted Reproductive Technology methods. However, these

rules have no legitimate standing. To streamline the methodology for surrogacy advance,
the Law Commission of India presented the 228th give an account of Assisted
Reproductive Technology systems talking about the significance and requirement for
surrogacy, furthermore the means taken to control surrogacy courses of action.

ASSISTED REPRODUCTIVE TECHNOLOGIES BILL 2010

SURROGACY (REGULATION) BILL-2016

The draft Surrogacy (Regulation Bill) 2016, passed by the Health Ministry, was cleared
by the Union Cabinet on the 24th of August 2016; and is now all set to be introduced in
the Parliament soon.

SECONDARY SOURCES

BABY M CASE:

It was left stateless after the partition of Japanese appointing guardians amid the
pregnancy time frame and them two declined to acknowledge the child. After a long fight
in court, the authority was conceded to the infant's grandma.

In the above legitimate case, the Supreme Court of India in its decision elucidated that
business surrogacy is allowed in India with a course to the Legislature to institute proper
law representing surrogacy in India.

In any case, as more surrogacy rackets, lawful complexities and instances of misuse of
surrogates became visible, need was felt to make the directions on surrogacy sterner.

INDIAN GOVERNMENT OVER SURROGACY:

 The government of India is firm over the decision of banning the commercial surrogacy
in the country as the ministers have different perception over the subject matter.

IDENTIFICATION OF ISSUES/ RESEARCH QUESTION

1. Whether the Surrogacy Regulation Bill, 2016 violates the fundamental rights as provided by
the Constitution of India?

2. Whether the Surrogacy Regulation Bill, 2016 will be able to play a justifiable role in misusing
surrogacy?

3. Whether such a stringent law would help to develop or still a need for more flexible laws and
regulations are required?

4. Whether Surrogacy Regulation Bill, 2016 is a didactic approach?

SCOPE OF RESEARCH

The current research titled as REGULATING SURROGACY: CRITICAL ANALYSIS puts an

emphasis on the concept of Surrogacy. Moreover, it extends to the detailed study of the subject
matter and its various types. The project not only focuses on the current legal considerations in
India with regard to surrogacy but simultaneously an attempt to introduce the legal
considerations of various countries for surrogacy has been made here. The project is a result of
comprehensive research across the globe. The main aim of the project is to target the functioning
of the government and its current policies in order to protect surrogacy from being exploited, i.e.
the rights of the child born out of such an agreement must be protected, the surrogate mothers
must not be exploited in any way and neither the couple who are in need of a child. In other
words, it should maintain an ethical standard. The project extends its scope in portraying the role
played by the Indian Government presently in reference to the international surrogacy laws
where it becomes quite a legal complex situation where the surrogate mother is an Indian
National and the Intended Parents (couples) are from abroad.
 RESEARCH METHODOLOGY

The research methodology applied in the present paper is a based on qualitative as well as
quantitative approach. (Doctrinal with help of reports, rules and regulations, bills)Here, various
analyses have been done to give the subject matter a conclusive end. The doctrinal case analysis
has been made where various case laws have been cited related to surrogacy and the Indian laws.
The research is majorly a result of secondary data analysis emphasizing on different articles of
various jurists, newspapers, etc.

HYPOTHESIS

In India, there is a need for sound legislation regarding the issue of surrogacy and legitimate
steps have to be taken to eliminate commercialization of surrogacy.

PROBABLE OUTCOME

Prior before 2002, there were no laws identified with surrogacy in India. In 2002, India
legitimized business surrogacy. After that ICMR gave its guidelines regarding the subject matter
in 2005. Despite the fact that they were not appropriate enactments but rather it assumed a
noteworthy part. At that point in the year 2010, ART Bill was passed which set down indulgent
arrangements. With the appearance of time, outsourcing surrogacy turned into an exploitative
practice in India.

On account of the Surrogacy Reproductive Bill 2016, the question of the proposed law is
apparently to check the misuse of poor ladies who regularly go about as surrogate moms. It's
difficult to see, however, how such a question can endure any connection to the characterization
that the Bill makes in recognizing couples wedded for a long time or more from all others,
incorporating live-in couples, single guardians, and those from the LGBT people group.
Notwithstanding its protected possibility, given the absence of agreement on such an entire
boycott, it is judicious to lead a more extensive open thought before the restriction is upheld as
law. India, to acquire an expression utilized by the American legitimate researcher Cass Sun
stein, is intended to be a "Republic of Reasons"

CHAPTERIZATION

1. Introduction.

2. Historical background.

2.1meaning & definition

2.2types of surrogacy

2.1.1Traditional Surrogacy

2.1.2Gestational Surrogacy

2.1.2Altruistic Surrogacy

3. Case Laws.

3.1 Indian cases

3.2 Cross Border Cases

4. Comparative Study with regard to surrogacy laws.

4.1 US

4.2 United Kingdom

4.3 Australia

4.4 Ukraine

4.5 France

4.6 Canada
 4.7 Israel

4.8 Japan

4.9 Netherland & Belgium

4.10 Russia

4.11 India

5. Legislative Framework.

5.1 ICMR Guidelines, 2005: (228th Law Commission Report)

5.2 Assisted Reproductive Technology Bill, 2010

5.3 Surrogacy Regulation Bill, 2016

6. Critical Analysis of Surrogacy Regulation Bill (2016).

6.1 Need for an Effective legislation (if any).

7. Conclusion.