INDEX

1. Introduction.
2. Historical Background.
3. Meaning, Definition.
4. Types of Surrogacy.

5.1 Traditional Surrogacy

5.2 Gestational Surrogacy
5.3 Altruistic Surrogacy
5. Case Laws.

6.1 Indian cases

6.2 Cross Border Cases
6. Comparative Study with regard to surrogacy laws.

7.1 US
7.2 United Kingdom
7.3 Australia
7.4 Ukraine
7.5 France
7.6 Canada
7.7 Israel
7.8 Japan
7.9 Netherland & Belgium
7.10 Russia
7.11 India
8. Legislative Framework.

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

8.2 Assisted Reproductive Technology Bill, 2010
8.3 Surrogacy Regulation Bill, 2016

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

10. Need for an Effective legislation (if any).

11. Conclusion.
 INTRODUCTION
Necessity is the mother of invention

The mentioned phrase is proved to be truly applicable as technology in the present era has
touched new heights, where there is a necessity- the very next moment a new invention is
made. Like every coin has two sides, science can also be considered as a coin having a
positive side and a negative side. Since it has developed because of its technological
advancements its not easy to judge whether science is a boon or a bane- as it remains
debatable. It cannot be doubted that science in the medical field has done wonders. The
strongest human desire is to maintain his genetic line. This can only be done by
procreation or reproduction. Its true that having a child is the most innate thing in the
world but according to the survey, 1 out of every 6 couple is affected by infertility. It is
the inability to conceive a child after many attempts of carrying pregnancy to a term or
owing to any deficiency in the human body (man or woman or both).SURROGACY 1- a
wonder in one of its own kind (proving the phrase), has come as the invention for the
necessity of such infertile duos. Surrogacy is the best proposition in place of the natural
mother. Moreover, surrogacy would be a chance for some couples to have a child which is
biologically or partly their own. The genetic mother can bond with the baby better than in
situations like Adoption. Nature has bestowed the beautiful capacity to procreate a life
within women and every woman cherishes the experience of motherhood. Unfortunately,
some women due to certain physiological conditions can not give birth to their own off-
spring. The desire for motherhood leads them to search for alternative solutions, and
surrogacy presents itself as the most viable alternative.

Advances in assisted reproductive techniques such as donor insemination and, embryo

transfer methods, have revolutionized the reproductive environment, resulting in
surrogacy, as the most desirable option. The system of surrogacy has given hope to
many infertile couples, who long to have a child of their own. Taking advantage of the
advanced medical facilities, they seek alternative solutions like Artificial Reproductive
Technology (ART), In-Vitro Fertilization (IVF) and, Intra- Uterine Injections (IUI), in the
hope of having a child of their own.
The very word surrogate means substitute2. That means a surrogate mother is the
substitute for the genetic-biological mother. In common language, a surrogate mother is
the person who is hired to bear a child, which she hands over to her employer at birth.

1Segens Medical Dictionary.

 In the past, surrogacy arrangements were generally confined to kith and kin of close
relatives, family, or friends, usually as an altruistic deed. But, with the introduction of
financial arrangements in the process, surrogacy has extended its network beyond family,
community, state, and even across the country. The concept of surrogacy has turned a
normal biological function of a womans body into a commercial contract. Surrogate
services are advertised. Surrogates are recruited, and operating agencies make huge
profits. The commercialization of surrogacy has raised fears of a black market and of
baby selling and breeding farms; turning impoverished women into baby producers and
the possibility of selective breeding at a price. Surrogacy degrades a pregnancy to a
service and a baby to a product. Experience shows that as with any other commercial
dealing, the customer lays down his/ her conditions before purchasing the goods. Slowly
but steadily India was emerging as a popular destination for surrogacy arrangements for
many rich foreigners. Cheap medical facilities, advanced reproductive technological
know-how, coupled with poor socio-economic conditions, and a lack of regulatory laws in
India, in this regard combined to make India an attractive option.

Women, who undertake these assignments in India, usually come from lower class to
lower middle class backgrounds, are married, and are often in need of money. Their need
for money is so acute that more than often, childless couples can negotiate a better price
as a result of competition. The amount of money given to a surrogate mother in India may
appear very miniscule from any reasonable perspective, however, the amount may serve
as the economic lifeblood for the families, and will be spent on the needs of the family (a
house, education of the children, medical treatment). These are basic needs and may seem
trivial from a notably rich westernersperspective, but they become mega needs in a
country like India, which lack social safety nets, and where the governance structure is
attuned only to the needs of the rich and powerful sectors of the society.

Most women who become surrogates insist on anonymity for fear of social stigma. Some
men, particularly the husbands of surrogate mothers, react badly to this encroachment
on their rights. Women who participate in surrogacy programme report that their
partners, initially agreeable to their undertaking the responsibility, often change their
attitude after they take on their new role. One American woman told of being left by her
fiance for another woman. The husband of another surrogate mother would not look at
her after she was inseminated.

2Surrogacy from a feminist perspective by MaliniKarkal, published in Indian Journal of Medical Science (IJME), Oct.-
Dec. 1997 5(4), link; http//www. Issuesinmedicalethics.org/054mi15.html. Also in Nelson Hilde Lindemann, Nelson James
Lindemann: Cutting motherhood in two : some suspicions concerning surrogacy. In: Holmes Helen Bequaert, Purdy Laura
(Eds.): Feminist perspectives in medical ethics. New York: Hypatia Inc., 1992.
Even as an increasing number of childless couples from overseas come to India, legal
experts express their reservations. Many foresee hurdles after the child is born and caution
that surrogacy should be carefully considered. As there are several clinics now that
perform such services - gauged by the number of advertisements in the local media as
well as on the Internet - it is easy to select a clinic. However, the real problem arises after
the birth of the baby. In India, in the absence of clear laws on the issue, foreigners are
unable to get legal assistance when it comes to taking their child back to their home
country.

However, with the entry of financial arrangements in exchange of the surrogate child,
surrogate motherhood has raised difficult ethical, philosophical, and social questions.
Surrogacy arrangements have made child a saleable commodity, and complications
have arisen regarding the rights of the surrogate mother, the child, and the commissioning
parents. As there is no legal provision to safeguard the interests of the surrogate mother,
the child, or the commissioning parents in India, looking at such an issue from
commercial or business point of view has complicated the matter further. For example, the
surrogate may be forced to terminate the pregnancy if desired by the contracting couple
and she will not be able to terminate it if it is against the desire of the couple. She has no
right whether to abort the baby or keep it and continue with the pregnancy even if it her
womb which is carrying the baby. There have been instances where the contracting
individual has specified the sex of the baby as well and even refused to take the baby if it
was born with birth defects and filed a suit against the surrogate saying she had broken
the contract.

In surrogacy, the rights of the child are rarely considered. Early handover of the child
hampers breastfeeding. Transferring the duties of parenthood from the birthing mother to
a contracting couple is denying the child its claim to both the mother and the father. It
could affect the psycho- social well-being of children who are born as a result of a
surrogate motherhood arrangement. A shocking case of surrogacy was recently unearthed
in the Bombay International Airport, where a foreigner couple came for surrogacy
arrangements in India in order to get an organ transplant to their sick child in their
country. This revelation further highlights the need for studies on surrogacy to provide a
foundation for the formulation of laws and regulations in surrogacy arrangements.
Therefore, there is a clear need to protect the interests of both the surrogate mothers and
the children produced out of such arrangements.

The practice of renting a womb and getting a child is similar to outsourcing pregnancy.
The volume of this trade is estimated to be around $ 500 million and the numbers of cases
 of surrogacy are increasing rapidly. The exact extent of this practice in India is not known,
but inquiries have revealed that this practice has doubled in the last few years. There is a
growing demand for fair- skinned, educated young women to become surrogate mothers
for foreign couples. Often, couples have to wait for as long as eight months to a year for
their turn. Normally women from small towns are selected for outsourcing pregnancy 3. In
places like Anand, Surat, Jamnagar, Bhopal, Indore, a large number of couples from both
within India and abroad travel to fulfill their desire for a child. Several American, Russian
and British women are duly registered with the Akankshya Clinic of Anand and the
Bhopal Test Tube Baby Centre for the procedure.

The lack of research on surrogacy also poses a problem for Government agencies when it
comes to initiating legal provisions and taking substantive action against those found
guilty. A number of surrogacy related questions remains unanswered, including:

Is it legal to become surrogate mother in India?

Will the child born to an Indian surrogate mother be a citizen of this country?

Who arranges the birth certificate and passport required by the foreign couple at the time
of immigration?

Whose name will appear on the birth certificate? How will the commissioning parents
claim parenthood?

What happens if the surrogate mother changes her mind and refuses to hand over the
baby or blackmails for custody?

Who will take the responsibility of the child if the commissioning parents refuse to take
the child?

What would happen if the child is born disabled?

What would happen if the sex of the child is not to the liking of the commissioning
parents?

Such questions need thorough analysis before any policy relating to surrogacy is designed
and legal provisions are made.
Therefore, the risks and the disadvantages involved in the surrogacy arrangements often
prove detrimental to the interests of the surrogate mother, and the child. At times the
commissioning parents also face legal hassles, which was demonstrated in the case of a
Japanese couple4 and the child born to them, which brought out many issues related to
surrogacy arrangements. In light of this case and several other issues arising out of the

3Surrogate mothers: Outsourcing pregnancy in India article by Joseph Gothia, 26thJune 2008, link:
http://india.merinews.com/cat Full.jsp?articleID= 136421
 misuse of surrogacy arrangements, the Ministry of Women and Child Development,
Government of India called a meeting-cum-workshop of Government agencies, NGOs,
Doctors, and concerned Ministry personnel on the 25th June 2008, to discuss various
aspects of this issue. A particular aspect was given to its effects on the welfare of women
and children born out of this arrangement, and to draft a legal procedure to address these
issues.
The supposed benefits of surrogacy are created by a capitalist patriarchal society. It is
assumed that there is an equal exchange - money paid for the service rendered. In reality
the contract between the parties to surrogacy would not exist if the parties were equal. The
woman must give more than her egg in order to gestate a child - an important gender
difference. Within this framework the contract is always biased in favor of the financially
secure male. The freedom of the surrogate mother is an illusion. The arbitration of
rights hides central social and class issues which make surrogacy contracts possible5.
In addition, bio-ethicists are concerned that Indian surrogates are being badly paid and
working as surrogates in a country with a comparatively high maternal mortality rate.

Worldwide, approximately 259,200 children are born every day. That is almost 3 children
each second. The birth of a newborn child is often a very special and fascinating event for
all the people involved. Unfortunately some couples, due to certain physiological
conditions, cannot give birth to their own offspring.

Infertility affects about 1 out of every 6 couples. This includes not just those unable to
conceive after 12 months of trying, but also those that cannot carry a pregnancy to term.
Since the 1970s, the number of infertile couples has increased (Winston & Bane, 1993).
Some might argue that the reason for this is that this number only includes couples who
seek clinical assistance for infertility. Over the years the social attitudes towards medical
interventions like IVF have changed. As a result infertile couples have become less
reluctant to seek help, which is reflected in the percentage of infertile couples registered
by the clinics. Others do not fully share this opinion. Medical experts believe that women
nowadays postpone childbearing because of career prospects and contraception.
Consequently, women are older once they start trying to conceive a baby. Older women
are generally less fertile because of age-related biological factors. Due to several reasons,
such as the changing sexual practices, the use of intrauterine devices, more and more

4 Hindustan Times, dated 7thAugust 2008, Nation Page, pg. 13, column 2.

5 MaliniKarkal, ref. no. 1

women suffer from pelvic inflammatory disease, which is a leading cause of female
infertility (Winston &Bane).

For many infertile men and women, being unable to bear and raise children has severe
emotional and psychological consequences. They often feel guilty, and experience a loss
of self-worth and confidence. To many infertile people, their condition affects their most
fundamental feelings about who they are and what their role in the family is. It influences
ones personal identity and the extent of fulfilment. For that reason, infertility is regarded
a major health problem. Also, it makes it clear why people who cannot have children the
natural way look for other ways in order to become a parent.

In the past, couples unable to conceive were expected to turn to adoption to achieve their
parenthood dreams. Nowadays there are many options for infertile couples, as well as
singles and homosexuals who want children. The urge of parenthood leads them to seek
alternative solutions including Artificial Reproductive Technology (ART), In-Vitro
Fertilisation (IVF) and Intra-Uterine Injections(IUI).
 HISTORICAL BACK GROUND/ SURROGACY IN ANCIENT WORLD
Infertility is not a new problem experienced only by modern women. Women in all times
had trouble conceiving, and one way in which they were able to start a family was
through surrogacy. The term surrogacy goes back to crack of dawn. But surrogate
pregnancy got life in the late 1970s. The first documented case of surrogate pregnancy
comes from the bible6. The story of Abraham and Sara mentions that Sara had
experienced infertility, and asked her handmaiden, Hagar, to carry a child for her and
Abraham. Since biblical times, there has probably been many such surrogate pregnancies,
but it is not until the late 1970s that anything is recorded.

Attorney NOEL KEANE7 is known as the creator of the legal idea of surrogate
motherhood. This idea became feasible only after developing an association with the
physician named, WARREN J. RINGOLD in the city of Dearborn, Michigan. Keane
went onto create the infertility centre, arranging hundreds of surrogate pregnancies per
year. He was also involved in several high profile cases and law suits over some of the
arrangements made. The first documented surrogate pregnancy was recorded in 1976.

From that moment until 1988, approximately 600 babies were born via surrogacy.
Between 1988 -1992, the number rose significantly, to over 5000.

ANCIENT INDIA
Surrogacy was known and practiced in ancient times. In the Mahabharta, Gandhari, wife
of Dhritarashtra, conceived but the pregnancy went on for nearly two years; after which
she delivered a mass (mole). Bhagwan Vyasa found that there were 101 cells that were
normal in the mass. These cells were put in a nutrient medium and were grown in vitro
till full term. Of these, 100 developed into male children (Duryodhana, Duhshasana and
other Kauravas) and one as a female child called Duhsheela. There are other well-quoted
examples that refer to not only IVF but also to the idea that a male can produce a child
without the help of female. Sage Gautama produced two children from his own semen
a son Kripa and a daughter Kripi, who were both test-tube babies. Likewise, Sage
Bharadwaj produced Drona, later to be the teacher of Pandavas and Kauravas. The story
relating to the birth of Drishtadyumna and Draupadi is even more interesting and reflects
the supernatural powers of the great Rishis. King Draupada had enmity with Dronacharya

6Genesis chapter 16: Working of Gods Timing.

7Reproductive and Genetic Engineering, Vol-1, No-2, pp. 205-207,1988

 and desired to have a son strong enough to kill Drona. He was given medicine by Rishi
and after collecting his semen, processed it and suggested that artificial insemination
homologous (AIH) should be done for his wife who however refused. The Rishi then put
the semen in a yajnakunda from which Dhrishtadyumna and Draupadi were born. While
the above are quoted as examples of in vitro fertilisation (IVF) and parthenogenesis, there
is another story, which refers to embryo transfer. According to Bhagwad Gita, even Lord
Krishna is understood to have been born without a sexual union. This was regarding the
seventh pregnancy of Devaki, by the will of the lord; the embryo was transferred to the
womb of Rohini, the first wife 37 of Vasudev, to prevent the baby being killed by Kansa.
(60-64)

ANCIENT MESOPOTAMIA AND EGYPT (67)

An interesting bible scenario is Sarah, the wife of Abraham. Sarah could not have
children in the beginning. She gave her handmaid, Hagar, to her husband Abraham to
produce them a child. The method used was copulation. The outcome in this arrangement
proved to be a productive one. In this scenario the spouse became jealous, the surrogate
became proud and refused to give up the identity of the child and consequently the
spouse had both her and her child ousted.66 If we look at the history of surrogacy, it
really began in the late 1800s with the American Indians who were the first one to truly
begin the surrogate mother history. If an Indian woman was found to be infertile, then her
husband would go to the chief of his tribe and ask for help. He would then be sent to see
the medicine man, who would give the wife certain herbal concoctions. Then, after the
witch doctor said nothing could be done to help his wife, the husband would go to see the
chief. He would be allowed to take another woman and make her pregnant, hopefully, so
that he would be able to father a son to carry on his tribe. The barren wife would have no
biological ties to the child. 67 In many countries, surrogacy has been around since before
records. Many cultures have belief systems that abide with the rules of surrogacy and
those that do not agree can be thrown out of their families. Numerous religions and
civilisations will actually celebrate the surrogate mothers, for their good deeds and
service to others. During the 1980's surrogate mothers were used by the gay community
to build their families, then, it was frowned upon by society.68 The American Indians
were not the only cultural group to use surrogacy as a means to carry on the family name.
It has been known about throughout Europe and Spain and other such places. King would
often bring in several surrogates until one bore him a son, then the surrogates would be
kept as nannies to the child; the child would 65 Ibid. 66 Supra note 5. 67 Ashley Kate,
History of Surrogate Motherhood Available at: http://www.ezinearticles.com (visited
on July 17, 2010). 68 Ibid. 38 believe the King and Queen were its biological parents and
know nothing about its genetic ties to the nanny. Often things of this matter were kept
secret, because if such things got out in the kingdom, one could question the childs right
to the throne.69 In mid-19th century it began in non-mammalian species. In 1935,
Geregory Pincus showed, using the rabbit as the animal model, the experimental
conditions necessary for mammalian oocytes (immature ova, or germ cells, or egg cells)
to mature in vitro and reach the metaphase stage of meiosis (the appropriate
developmental stage in cell division necessary for sexual reproduction). In 1959, Min
Chueh Chang showed that in vitro matured rabbit oocytes could be fertilised in vitro and
also gives rise to viable embryos. But the conditions used were not entirely in vitro
because it was wrongly believed then that sperm require in vivo activation before being
transferred to the petri dish for fertilisation. However, in 1963, Chang and Ryuzo
Yanagimachi identified experimental conditions by which spermatozoa from hamsters
could fertilise oocytes without prior in vivo activation and give rise to two-cell-stage
embryos.70 As early as 1950s, Edwards, working at the National Institute for Medical
Research in London, made a number of fundamental discoveries. He clarified how
human eggs mature, how different hormones regulated their maturation and at which
point in time the eggs were susceptible to fertilisation. After several years of work,
Edward succeeded, in 1965, in finding the right conditions that activated the dormant and
immature egg cells in vitro and promoted their maturation. He found that human oocytes
required 24 hours of incubation before the maturation process began. He also found that
this prolonged cultivation resulted in egg cells at a late developmental stage, which were
suitable for IVF. In 1969, he had identified the buffer conditions to support in vitro
activation of hamster oocytes. Edwards used the same buffer conditions and showed that
human spermatozoa thus activated could also promote the fertilisation of in vitro matured
oocytes. This discovery marked an important milestone in the development of treatment
for infertility in humans. However, today IVF is an established therapy. The discovery of
the technique by Edwards, followed by several improvements on it, marks a major 69
Ibid. 70 Preeti Bhardwaj, Surrogacy in India- An Analysis Prof. (Dr.) Paramjit S.
Jaswal et al. (eds.) Gender Issues in India: Sensitisation, Reflection and Solutions 113
(2012). 39 medical advance that is a boon to infertile people all over the world.71 Indias
very own Dr. Subhas Mukhopadhyay produced the worlds second testtube- baby,
Kanupriya Agarwal alias Durga the girl who was brought into the world by the doctor.
Both Dr. Mukhopadhyay and British scientists Robert G Edwards and Patrick Steptoe
creators of the worlds first test-tube-baby-started work at the same time. The Indian baby
was born on October 3, 1978, just 67 days after Marie Louise Brown was born on July
25, 1978. However, unfortunately Dr. Mukhopadhyay was prevented from carrying out
further work on in vitro fertilisation and was transferred away from Kolkata. He was also
prevented from going to Tokyo to present a paper. Frustrated and in failing health,
Mukhopadhyay killed himself on June 19, 1981. According to scientific records,
Harsha who was born on August 16, 1986 became the first human test-tube-baby of
India. The credit for this achievement went to T.C. Anand Kumar, director of Institute for
Research in Reproduction (IRR) of Indian Council of Medical Research (ICMR). In
1997, he went to Kolkata to participate in a Science Congress. It was there that all the
research documents of Mukhopadhyay were handed over to him. After meticulously
scrutinising and having discussions with Durgas parents, he became certain that
Mukhopadhyay was the architect of first human test-tube-baby in India. In T.E. Anand
Kumars initiative, Mukhopadhyay was mentioned as the architect of the first Indian
testtube-baby in a document related to the subject of artificial intercourse in ICMR.

RECENT HISTORY (76-77)

The issue of surrogate motherhood came to national attention during the 1980s, with the
Baby M case. In 1984 a New Jersey couple, William Stern and Elizabeth Stern,
contracted to pay Mary Beth Whitehead $10,000 to be artificially inseminated with
William Stern's sperm and carry the resulting child to term. Whitehead decided to keep
the child after it was born, refused to receive the $10,000 payment, and fled to Florida. In
July 1985, the police arrested Whitehead and returned the child to the Sterns. In 1987 the
New Jersey Superior Court upheld the Stern-Whitehead contract. The court took all
parental and visitation rights away from Whitehead and permitted the Sterns to legally
adopt the baby, whom they named Melissa Stern. A year later, the New Jersey Supreme
Court reversed much of this decision. That court declared the contract unenforceable but
allowed the Sterns to retain physical custody of the child. The court also restored some of
Whitehead's parental rights, including visitation rights, and voided the adoption by the
Sterns. Most important, the decision voided all surrogacy contracts on the ground that
they conflict with state public policy. However, the court still permitted voluntary
surrogacy arrangements. The Baby M. decision inspired state legislatures around the
United States to pass laws regarding surrogate motherhood. Most of those laws prohibit
or strictly limit surrogacy arrangements. Michigan responded first, making it a felony to
arrange surrogate mother contracts for money and imposing a $50,000 fine and five
years' imprisonment as punishment for the offense.78 Florida, Louisiana, Nebraska, and
Kentucky enacted similar legislation, and Arkansas and Nevada passed laws permitting
surrogacy contracts under judicial regulation.
 AIMS GUIDELINES IN INDIA
The underlying motivation for this study is to assess whether the EU should, or indeed
could, adopt uniform rules relating to surrogacy. In order to help make such an
assessment, the study has the following key aims:

1.To empirically investigate and analyse trends in the practices and attitudes towards
surrogacy across the EU Member States through a number of indicative case-studies.

2. To identify and analyse policy issues relating to surrogacy that any process of EU
harmonisation of laws, or indeed any legislative measure aimed at surrogacy, would need
to be informed by.

3. To investigate and analyse different legislative models and other express provisions
for surrogacy (e.g. professional organisation guidelines), to include how judges have
interpreted these provisions in cases that have come before the courts. The analytical
focus will be comparative and will evaluate both the benefits and difficulties that arise
with different approaches and subsequent legal disputes. Given that only a few Member
States have any explicit legislation for surrogacy, the legal regimes and case law in a
number of indicative jurisdictions beyond the EU will also be examined, in order to shed
greater light on the format that legislation might take in this area and the difficulties that
may ensue.

4. To investigate and analyse the role of the courts in solving the disputes and
problematic legal issues that arise when a legal vacuum exists in relation to surrogacy, or
where all forms of surrogacy are legally prohibited. The analytical focus will be to
suitably categorise the different types of case law that have arisen across the EU Member
States that do not expressly provide for surrogacy, or where surrogacy in all forms is
legally prohibited, and to evaluate the legal concepts and techniques that have been used
by the judiciary; from e.g. the best interests of the child, to reference to constitutional
and human rights provisions, or principles emerging from private international law.

5. To investigate and analyse the private international law issues emerging from
cross-border surrogacy agreements and to provide an evaluation of what form legal
regulation in this area could usefully take.
 6. To investigate and analyse the potential remit of the EU in the area of surrogacy
and to provide an evaluation of whether the EU should and/or could adopt uniform rules
in this field.

7. To provide the European Parliament with a significant research report from which
future research studies in the area of surrogacy may emerge.

MEANING & DEFINITION

Surrogacy is a method of reproduction in which a woman, (referred to as surrogate
mother) agrees to carry a pregnancy and give birth as a substitute for the party with
which she has promised or contracted. In simpler words, it is an arrangement or a
contract made between a woman and a couple to carry and deliver their child. The
surrogate mother is also called the Gestational Carrier and the couple can be referred to
as Intended Parent. A couple who undergoes this process is unable to conceive due to
missing or an abnormal uterus or have experienced multiple miscarriages or failure in
Vitro Fertilization attempts.

In Vitro Fertilization process is the one in which eggs (ova) from a womans ovary are
removed. They are fertilized with sperm in a laboratory procedure, and then the fertilized
egg (embryo) is returned to the womans uterus.8

The process involves conception via sexual intercourse, artificial insemination used in
fresh sperm, impregnated via IUI (Intra Uterine Insemination) or ICI (Intra Cervical
Insemination).

Surrogacy is an arrangement between a woman and a couple or individual to carry and

deliver a baby. It is a controversial process that is not legal in all states. The surrogate
mother is also known as a gestational carrier. In many cases, the process is an expensive,
time consuming, and emotional one. Women or couples who choose surrogacy often do
so because they are unable to conceive due to a missing or abnormal uterus, have
experienced multiple pregnancy losses, or have had multiple in vitro fertilization attempts
that have failed. The advantage of gestational surrogacy to the parents is that the embryo
is created from the woman's egg and the man's sperm, so it is biologically theirs.

The surrogacy arrangement is sometimes made through an agency and other times
contracted privately. When searching for a surrogate mother, a couple might use the
Internet, contact an agency, or network through friends and family. Surrogacy
arrangements are sometimes made between strangers who never meet, or between

8<a href=http://medical dictionary.thefreedictionary.com/surrogacy>surrogacy</a>

 persons who meet only occasionally through the process. A surrogacy arrangement might
also involve persons whose lives become intertwined during the process, and even those
who are family members or friends before entering a surrogacy arrangement.

As discussed briefly in the Introduction, originally surrogacy happened within families

and friends. Known surrogates would give birth for infertile family members or friends.
This was an altruistic deed as these surrogates were generally not paid for it. Over the last
few decades however, there is a noticeable trend of the commercialization of surrogacy.
Some say that this is an undesirable development as giving birth to a child should not be
regarded the production of a commercial product. They feel that surrogacy is similar to
baby selling and that a law comparable to the one prohibiting the sale of human organs
should apply to the sale of childbearing.
Others argue that surrogacy arrangements are a win-win situation. On the one hand, the
intended parents benefit from finally having what they have desired for so long. At the
same time, surrogate mothers profit from the agreement through the opportunity to
increase their economic solvency and are thus able to take better care of their families.
Therefore the needs of two desperate women are both met in a surrogacy transaction.
Most people agree the important aspects of who we are, what we know, believe or feel
and how we function in our societies, is not decided by genetics. It is even less likely that
the uterine environment in which we grew as embryos and foetus determines these
aspects. The general perception is the way we are raised, the care and guidance we
received and the experiences we encountered during this period are far more important
for determining what kind of human being we turn into. This perception leaves little
doubt of the prime value of parental nurturing. Bromham (1995) states this issue was
stressed many years before the issue arose with gestational surrogacy, for instance when
men became fathers following donor insemination.
Although society appreciates the importance of parenting and raising a child well, very
few individuals question the position of surrogates for parental functions, such as
nannies, wet-nurses and boarding schools, even though it seems reasonable to say that
these functions are far more valuable to the development of the child than the initial
uterine or even genetic origins (Bromham, 1995). Then why are so many people opposed
to surrogacy? The reasons for this, as well as motives to advocate for surrogacy will be
discussed below. The focus in this will lie on surrogate mothers from developing
countries.

ARGUMENTS FOR SURROGACY

Advocates of surrogacy argue that the surrogacy agreements are beneficial for all parties
involved as the needs of two desperate women are met. It is often said that in the
surrogacy arrangement the barren gets a baby, the broke gets a bonus. The surrogate
mothers often really utilize the money the yearn.
Others claim that the right to procreate is an important right. For example, in the United
States this right is protected by the Constitution (Field, 1990). The couple may exercise
this right in the most practical way available to them given their infertility. However,
Cline (2008) states this right is not literally spelled out in the constitution. Margaret Jane
Radin (1988) argues that if men are to donate sperm and receive money for that
transaction, then surrogacy should also be allowed as an analogous transaction for
women. This constitutional argument can also be used as an argument against surrogacy.
Due to the substantive due process privacy right the birth mother has a right to
companionship of her children which cannot be overridden by contract. The liberal
argument for surrogacy is autonomy and free choice. As long as one does not harm
others, one has a wide sphere for doing what one wants. This relates to the intended
parents as well as the surrogate mothers. Practice often tends to be slightly different
though, because duress and coercion affect the extent to which someone has free choice.
An economic argument, expressed by Judge Posner (1987), is that efficiency will
improve with free trade. This will happen when there are parents who are eager for
children and women - anxious to be surrogates. However, once this trade of parental
rights is prohibited, black markets will come into existence. Posner (1987) states that due
to the complicated adoption regulations in many countries, people go to other countries to
evade the regulations creating a vast black market. As a result, it is better to acknowledge
the existence of such a market in order to better control it and make it more efficient.
Interestingly, there are very committed feminists on both sides of this issue. According to
Radin, feminists who do want to fully legalize surrogacy follow the reasoning that the
world is non-ideal. Women and men are not equal and for years women have been
relegated to a separate sphere at home, away from the marketplace. This has made
women powerless, because the place of power is the marketplace, which is dominated by
men. This power has meant the liberation of men. Women want to achieve this as well.
They do not want men to tell them what sell and what not to. Whether or not it is morally
wrong to engage in child selling and surrogacy should be decided by the women
themselves. Many feminists use this reasoning as an argument for why surrogacy should
be legal.
Other feminists however agree that women have been kept out of the market for a long
time, but historically women also have been seen (in their separate sphere at home) and
treated like baby producing machines. Allowing baby selling and surrogacy would mean
 that women remain being treated as anonymous interchangeable breeders and reinforces
the objectification and subordination of women. Entering the market in this context is
therefore far from liberating, but rather degrading.

ARGUMENTS AGAINST SURROGACY

According to Kembrell (1988) the practice of surrogacy exploits women economically,

emotionally and physically. An important factor is that most women who get involved as
surrogates do so because they are in desperate need of the money to maintain their
family. In addition, agents are often involved and arrange contracts of questionable
legality. Those contracts require the women to undergo all the rigors of childbearing, and
eventually they have to give the child away (Kembrell, 1988). The surrogate mothers are
often unaware of their legal rights and due to their financial situation they cannot afford
the services of attorneys. Once the surrogate mother has signed the contract, it
isimpossible for them to escape. Kembrell(1988) goeseven further saying: the practice
of surrogacy represents a new and unique form of slavery of women. This a view
supported by Davis (1993). During times of slavery, slave women were often used as
birth or genetic mothers and as surrogate mothers nowadays, who possessed no legal
rights as mothers. In light of the commoditization of the children, and actually also of
themselves, they have the same status as surrogate mothers have in contemporary times.
Another similarity is that slave mothers could not speak freely about their pregnancy and
the children they carried; an aspect that is also present in surrogacy as a result of social
stigma. Davis is worried that, given this history, poor women may be transformed into a
special caste of hired pregnancy carriers (1993). She believes that with the
commoditization of labour services of pregnant surrogate mothers, money is being made,
which implies that someone is being exploited. Davis continues by saying that surrogacy
appears as a procedure generative of life, what is really generated seems to be sexism and
profits.

Horsburgh (1993) is opposed to women because he believes surrogates are physically

exploited once they have signed contracts agreeing to give birth to babies for clients. If
there is a reason to abort the fetus, because of medical reasons or clients demands, the
surrogate mother must comply. To make matters worse, if the pregnancy is indeed
aborted, the surrogates often receive just a fraction of the original payment (Horsburgh,
1993). The contracts can also place liability on the mother for risks including pregnancy-
induced diseases, death and post-partum complications (Kembrell, 1988).
Foster (1987) states that many surrogate mothers face emotional problems after
having to relinquish the child. She recalls a woman who said that she started
praying not to go in labour so that she and her child could stay together.
However, other authors disagree with Foster. A study by Jadva, Murray, Lycett,
MacCallum and Golombok (2003) showed that surrogate mothers do not appear
to experience psychological problems as a result of the surrogacy arrangements.
Although they do acknowledge that some women do experience emotional
problems in handing over the baby or as a result of the reactions around them,
these feelings appeared to lessen during the weeks following the birth.
Other authors take a different stance. Radin (1996) raises the issue of surrogacy
in fact being baby selling. She states: if it were okay to think of children as
property, then it would be okay to buy and sell them; and if it is not done to buy
and sell them, then maybe its not done to think of children as property. New
Hampshire judge ruled the following in a custody case: At birth the father does
not purchase the child. It is his own biological genetically related child. He
cannot purchase what is already his (1987). Radin (1996), however, believes
that even if there is a genetic relationship between the adopters and the child
this does not necessarily make it a non-sale. If some (surrogate) children are
conceived as market commodities because there is a practice of paying money
for relinquishing parental rights, then every child can be considered a
commodity. As a matter of fact, we all are commodities, because we used to be
children ourselves. If children are viewed as exchangeable market commodities,
it might make the self-conception of those children as persons impossible.
Therefore, if conceiving children as commodities has a negative effect on
personhood, it means that baby selling, and surrogacy for that reason, is wrong
(Radin, 1996).
Others might reason that commissioned adoption, in which someone pays a
woman to conceive, gestate, give birth and subsequently relinquish the parental
rights to this person, is illegal. The idea is that surrogacy, legal in some countries,
is just commissioned adoption under certain special a contribution of genetic
material circumstances. As a consequence: to permit surrogacy would be an
irrational exception to the baby selling laws if that distinction is based on genetic
relationship does not hold good. If legislation is passed which enables legal
surrogacy arrangement, then the laws against baby selling in general should also
 be reconsidered.

While opponents of surrogacy would like to ban surrogacy completely, some

supporters would like countries to declare surrogacy fully legal. Neutrals, which
seem to have the upper hand, feel surrogacy is a controversial subject and also
acknowledge that the present situation, in which laws are non-existent or poorly
enforced, is unfavorable. Field (1990) agrees with Posner and she is very
articulate about it. She is worried that if surrogacy was made illegal, surrogacy
altogether would not disappear, but instead surrogacy would be driven
underground, which would cause more harm than good. Like Behm (1999), Field
(1990) believes that surrogate mothers should always have the option to
withdraw from the contract, up until they voluntarily give the baby to the
intended parents.
TYPES OF SURROGACY
NATURAL OR TRADITIONAL SURROGACY.9
In this type of surrogacy, female is pregnant with her own biological child and
then the child is genetically related to the surrogate mother. The child may be
conceived either through sexual intercourse or home artificial insemination or
IUI. In the traditional method the surrogates are impregnated by the process of
IUI (Intra Uterine Insemination). Under this, a doctor uses the own eggs of the
surrogate mother to create the child that she is carrying for the intended parents
or individual or transfers the sperm taken from the intended father and transfer
the sperm into the uterus of the surrogate so that the natural fertilization can take
place. The child is handed over to the other part right after the birth.

Straight surrogacy is the simplest and least expensive form of surrogacy and is
also known as artificial insemination. The surrogate uses an insemination kit to
become pregnant using the intended fathers semen. The baby will therefore be
conceived using the surrogates egg.

Some people prefer to use a clinic for inseminations, but it can also happen at
home and can therefore seem a more natural and less medical way of becoming
pregnant than host surrogacy. It can, however, can be harder emotionally for
both the surrogate and the intended parents.

951st paid traditional surrogacy was in 1980, when a woman with the alias Elizabeth Kane accepted a financial compensation of
$10,000
 This type is usually the less costly form, however is also less common. The
surrogate mother is impregnated with semen from the intended father or sperm
donor and uses her own eggs. This means that the surrogate mother is genetically
related to the child. The insemination procedure can be conducted at home, using
an insemination kit, or can be performed by a fertility clinic.

Some of the advantages of the traditional surrogacy:-

It has relatively low cost.

Artificial insemination is less expensive than it is in Vitro fertilization.
It is usually less medically complex.
If the first attempt fails, a second attempt can be made within the course of few
weeks (without causing any harm).
It is a speedy and painless process.

GESTATIONAL SURROGACY
It is a very common type of surrogacy. This surrogacy is when a woman also
referred to as a surrogate mother carries a baby for an intended couple or
individual. The gestational surrogate has no genetic relationship to the child that
she is carrying. The intended mother goes through a traditional IVF cycle to
create embryos using the sperm of the intended father or from a sperm donor that
will then be transferred to the surrogate. The gestational surrogate must agree to
medical evaluation and treatment during her participation in the program. If at
least one member of the commissioning couple is the genetic parent of the child,
the commissioning couple are presumed to be the natural parents of the child
gestated by the surrogate.

The most important difference between the two methods is that she (Gestational
Surrogate Mother) bears no genetic link to the baby or babies, she carries. This
gives the intended parents an opportunity to have a baby that is genetically
linked to one or both of them. It makes it easy with respect to the emotional
aspect of the process for the gestational surrogate mother.

In gestational surrogacy, the embryo is implanted in the surrogate through in

vitro fertilization. The surrogate carries the baby to term, then gives up the child
and signs over parental rights at birth. Usually, the couple pays legal fees, agency
fees if applicable, and a fee to the carrier. If the carrier does not have health
insurance that covers prenatal care and delivery, the couple would most likely
pay those costs also.
Disadvantages of surrogacy include the possibility that the surrogate will change
her mind about giving up the rights after birth. Some couples also worry about
legal issues. There might also be differences between the couple and the carrier
regarding medical, nutritional, or testing issues.

The success rate of surrogacy cannot be determined because it is dependent on

many factors. The first successful gestational surrogacy took place in 1985. Other
forms of surrogacy have existed since Biblical times.

The surrogacy issue was highly publicized when the "Baby M" court case was
presented in New Jersey in the mid 1980s. In this custody case, the surrogate
mother declared she was unable to fulfill her contract and turn over the child she
carried to the intended parents. Initially, the court ruled for the intended parents
and gave them custody. Later, the surrogate mother regained some parental rights
and was granted parental visitation.

Author of the article is an IVF Fertility infertility specialist and runs fertility
centre provides the best affordable quality infertility,fertility treatments with
advanced reproductive technologies like IVF,ART, GIFT, ZIFT, TET, ICSI,donor
egg,surrogate and surrogacy services for all nationalities.

Intended parents share in a gestational carriers pregnancy closely, and may be

able to have a child genetically related to both parents.

People may come to surrogacy after exhausting other options and learning that
they cannot carry a pregnancy to term, and it is often a first choice for single
men, male couples, or women who have had medical complications.

Host surrogacy is when IVF is used, either with the eggs of the intended mother,
or with donor eggs. The surrogate therefore does not use her own eggs, and is
genetically unrelated to the baby. It is physically more complicated and
considerably more expensive than straight surrogacy, (although many IPs can
have some costs covered by the NHS) and always takes place in a fertility clinic.

Some Surrogates prefer this method as they may not be comfortable with using
their own eggs in surrogacy.

In essence, there are three stages to host surrogacy:

 Egg donation: the female IP, or the egg donor, undergo special
procedures to extract a number of eggs

Fertilisation: the egg is fertilised with semen in the laborator

Transfer: the fertilised egg is transferred into the womb of the

surrogate mother

The fertilised egg can be transferred to the surrogate either fresh or after having
been de-frosted from egg storage. For a fresh egg transfer the monthly cycles of
the surrogate and the egg donor must be synchronised, and this is done using
hormone medications. In cases where embryos have been frozen already and the
de-frosted embryos are being transferred some IVF clinics will insist on the
surrogate taking hormone medications to ready her womb lining. The more
popular and effective method, this procedure involves in vitro fertilization (IVF)
with the eggs of the intended mother or those of an egg donor. This means that
the surrogate mother is not genetically related to the child. Because this method
is more complicated medically, it tends to be more expensive than traditional
surrogacy.

A fertilized egg may be transferred to the surrogate either when it is freshly

fertilized, or after it has been taken from cryogenic storage and thawed. In order
to prepare for a fresh embryo transfer, the intended mother or egg donor and the
surrogate must take hormone pills at the same time to synchronize their cycles. In
a situation where the embryos have been thawed, some fertility clinics
recommend that the surrogate take hormone medication to prepare the lining of
her uterus for the transfer.

ALTRUISTIC SURROGACY

Altruistic surrogacy is when a surrogate is given no financial gain for carrying a

child. Only realistic out of pocket expenses are covered by the intended parents.
E.g. medical costs, travel, time off work, etc. Altruistic surrogacy can use either a
traditional or gestational surrogate.

However, the term altruistic surrogacy generally refers only to those

arrangements in which the surrogate does not receive compensation for her
services beyond reimbursement for medical costs and other reasonable
pregnancy-related expenses. Many of these arrangements are between family
 members or close friends and are completed as independent surrogacy. The
alternative to altruistic surrogacy is commercial surrogacy, in which the surrogate
is fairly compensated for her time and energy, the sacrifices she makes and the
many physical and emotional challenges she faces throughout the surrogacy
process.

The sections below explore the process, costs, pros and cons of altruistic
surrogacy, as well as some important considerations for prospective intended
parents to take into account before pursuing this type of surrogacy arrangement.

The surrogacy process is generally the same for altruistic surrogacy as it is for
commercial surrogacy. However, most intended parents in altruistic surrogacy
arrangements work with surrogates they already know. Because of the incredible
selflessness required of altruistic surrogates, many are women who volunteer
their gestational services for their siblings, children, or other close family
members or friends.

These arrangements are known as identified surrogacy because the intended

parents and surrogate have already found their match before working with a
surrogacy professional. Identified surrogacy puts intended parents and surrogates
a few steps ahead in the surrogacy process and eliminates the need for an
agencys matching services. However, it is highly recommended that intended
parents and identified surrogates work closely with a surrogacy professional
throughout the remainder of the process to complete the necessary legal and
medical requirements, and to provide the surrogate any support she made need.

PROS:

Altruistic surrogacy is generally less expensive than commercial surrogacy

because intended parents do not pay their surrogate.

Altruistic surrogacy is legal in many U.S. states and countries where commercial
surrogacy is banned, making it a more widely available option for intended
parents.

Intended parents pursuing an identified altruistic surrogacy may feel a greater

peace of mind and stronger sense of trust throughout the pregnancy because it is
being carried by a close family member or friend.
 CONS:

Most altruistic surrogates are close friends or family members of their intended
parents. Intended parents who are not pursuing identified surrogacy are not likely
to find a match with an altruistic surrogate through an agencys matching services.

Altruistic surrogates may feel underappreciated or even exploited at times, and

friends and family members may feel pressured to enter a surrogacy arrangement
in which they do not receive compensation. These situations could potentially
have a negative impact on the intended parents relationship with the surrogate.

Intended parents may feel less in control of the surrogacy when the surrogate is
not compensated; for example, some intended parents may feel hesitant to make
specific requests of the surrogate because they are not paying her in exchange.

CASE LAWS
INDIAN CASES:
Dr. Mrs. Hema Vijay Menon vs State Of Maharashtra Through Its ... on 22
July, 2015Bench: V.A. Naik

The short question that arises for consideration in this petition is, whether a
mother is entitled to avail maternity leave, though she begets the child through
surrogacy.

The petitioner went through five cycles of In Vitro Fertility (IVF) procedures at
Jaslok Hospital, Mumbai, to conceive the child, however, due to certain ailments,
the petitioner was incapacitated to bear the child and the attempts were
unsuccessful. Upon the failure of IVF procedures at Jaslok Hospital at Mumbai,
the petitioner was asked by an eminent Doctor at the Jaslok Hospital to opt for
the surrogacy procedure. After consultation with her husband, the petitioner
decided to have a child through surrogacy arrangement. In furtherance of the said
desire, in March 2013, an embryo was successfully transplanted in the womb of a
surrogate mother. On 04.12.2014, the surrogate mother went into labour and the
petitioner and her husband rushed to Mumbai. The surrogate mother delivered a
baby boy and the said child was immediately placed in the hands of the petitioner
and her husband.

The petitioner went through five cycles of In Vitro Fertility (IVF) procedures at
Jaslok Hospital, Mumbai, to conceive the child, however, due to certain ailments,
the petitioner was incapacitated to bear the child and the attempts were
unsuccessful. Upon the failure of IVF procedures at Jaslok Hospital at Mumbai,
the petitioner was asked by an eminent Doctor at the Jaslok Hospital to opt for
the surrogacy procedure. After consultation with her husband, the petitioner
decided to have a child through surrogacy arrangement. In furtherance of the said
desire, in March 2013, an embryo was successfully transplanted in the womb of a
surrogate mother. On 04.12.2014, the surrogate mother went into labour and the
petitioner and her husband rushed to Mumbai. The surrogate mother delivered a
baby boy and the said child was immediately placed in the hands of the petitioner
and her husband.

Maternity means the period during pregnancy and shortly after the child's birth. If
Maternity means motherhood, it would not be proper to distinguish between a
natural and biological mother and a mother who has begotten a child through
surrogacy or has adopted a child from the date of his/ her birth. The object of
maternity leave is to protect the dignity of motherhood by providing for full and
healthy maintenance of the woman and her child. Maternity leave is intended to
achieve the object of ensuring social justice to women. Motherhood and
childhood both require special attention. Not only are the health issues of the
mother and the child considered while providing for maternity leave but the leave
is provided for creating a bond of affection between the two.

It is said that being a mother is one of the most rewarding jobs on the earth and
also one of the most challenging. To distinguish between a mother who begets a
child through surrogacy and anatural mother who gives birth to a child, would
result in insulting womanhood and the intention of a woman to bring up a child
begotten through surrogacy, as her own. A commissioning mother like the
petitioner would have the same rights and obligations towards the child as the
natural mother. Motherhood never ends on the birth of the child and a
commissioning mother like the petitioner cannot be refused paid maternity leave.
A woman cannot be discriminated, as far as maternity benefits are concerned,
only on the ground that she has obtained the baby through surrogacy. Though the
petitioner did not give birth to the child, the child was placed in the secured
hands of the petitioner as soon as it was born. A newly born child cannot be left
at the mercy of others. A maternity leave to the commissioning mother like the
petitioner would be necessary. A newly born child needs rearing and that is the
most crucial period during which the child requires the care and attention of his
mother. There is a tremendous amount of learning that takes place in the first
year of the baby's life, the baby learns a lot too. Also, the bond of affection has to
be developed. A mother, as already stated hereinabove, would include a
commissioning mother or a mother securing a child through surrogacy. Any other
interpretation would result in frustrating the object of providing maternity leave
to a mother, who has begotten the child.

As rightly pointed out on behalf of the petitioner, there is nothing in Rule 74 of

the the Maharashtra Civil Services (Leave) Rules, 1961, which would disentitle a
woman, who has attained motherhood through the surrogacy procedure to
maternity leave.

Rule 74 provides for maternity leave to a female government employee. We do

not find anything in Rule 74 which disentitles the petitioner to maternity leave,
like any other female government servant, only because she has attained
motherhood through the route of surrogacy procedure. It is worthwhile to note
that by the Government Resolution dated 28.07.1995, maternity leave is not only
provided to a natural mother but is also provided to an adoptive mother, who
adopts a child on its birth. The only reason for refusing maternity leave to the
petitioner is that there is nothing in the Government Resolution, dated
28.07.1995 for providing maternity leave to the mother who begets the child
through surrogacy. If the Government Resolution, dated 28.07.1995 provides
maternity leave to an adoptive mother, it is difficult to gauge why maternity leave
should be refused to the mother, who secures the child through surrogacy. In our
view, there cannot be any distinction whatsoever between an adoptive mother
that adopts a child and a mother that begets a child through a surrogate mother,
after implanting an embryo in the womb of the surrogate mother. In our view, the
case of the mother who begets a child through surrogacy procedure, by
implanting an embryo created by using either the eggs or sperm of the intended
parents in the womb of the surrogate mother, would stand on a better footing than
the case of an adoptive mother. At least, there cannot be any distinction between
the two. Right to life under Article 21 of the Constitution of India includes the
 right to motherhood and also the right of every child to full development. If the
government can provide maternity leave to an adoptive mother, it is difficult to
digest the refusal on the part of the Government to provide maternity leave to a
mother who begets a child through the surrogacy procedure. We do not find any
propriety in the action on the part of the Joint Director of Higher Education,
Nagpur, of rejecting the claim of the petitioner for maternity leave. The action of
the respondent Nos. 1 to 3 is clearly arbitrary, discriminatory and violative of the
provisions of Articles 14 and 21 of the Constitution of India. It is useful to refer
to the unreported judgment of the Delhi High Court in the case of Rama Pande
vs. Union of India, and relied on by the learned counsel for the petitioner, in this
regard.

9. Hence, for the reasons aforesaid, the writ petition is allowed. The impugned
communication dated 07.05.2015 is quashed and set aside. It is hereby declared
that the petitioner is entitled to the maternity leave for a period of one year from
the date of the birth of the child i.e. 04.12.2014. Rule is made absolute in the
aforesaid terms with no order as to costs.

CROSS BORDER CASES

Rechtbank Groningen, 20 July 2004, Rechtbank Utrecht, 26 October 2005,
Rechtbank Utrecht, 24 October 2007, Rechtbank Utrecht, 7 May
2008,

Gerechtshof Amsterdam, 25 November 2008, Rechtbank Utrecht, 10 June 2009,

Gerechtshof Amsterdam, February 2, 2010: case Donna: surrogacy was carried
out in Belgium between a Belgian surrogate mother and a Belgian couple of
intent. The surrogate mother was inseminated with sperm from the father of
intent (traditional surrogacy). As a result of the deterioration of the relationship
between the surrogate mother and the couple, the surrogate mother pretended that
she had a miscarriage. After the birth, the surrogate mother entrusted baby Donna
to a Dutch couple, in return of payment. The Dutch couple informed the Dutch
authorities that a new-born would soon arrive in their family and that they would
like to adopt it, without specifying that the child is coming from abroad. The
case was referred to the Court of Utrecht, which has had to decide whether the
child could stay with the Dutch couple despite the fact that they had not
honoured the rules applicable to the adoption procedure when the child to be
adopted is foreign. Noting that there was a "family life" between the child and
the couple insofar as Donna had been living in the home of the Dutch couple
 since her birth, the Court allowed the couple to keep Donna. Meanwhile, the
Belgian parents of intent had realised that the surrogate mother had lied to them
and had given birth to 'their' child. More than two years after the birth of the
child, a DNA test showed that the Belgian father of intent was the biological
father of the child. Following this test, the Belgian father of intent started various
procedures before the Dutch courts to get the child back and to be granted
visitation rights. The courts however felt that it was not in Donnas interest to
leave the home in which she had been growing up since birth, nor to grant her
biological father a right of access (see below for the procedure in Belgium).

BABY MANJI

Baby Manji is a child born to an Indian surrogate. Her commissioning parents

were a couple from Japan, who filled for divorce shortly before the child was
born. The father, still wanting to take care of the child, faced severe legal issues
as the Indian law prohibits single men to adopt. Neither the intended mother nor
the surrogated mother wanted to take custody of baby Manji. The baby was
eventually permitted to leave for Japan after the Japanese government issued a
one-year visa to her on humanitarian grounds. However her grandmother needed
to accompany her, because she was temporarily given custody over the baby. As
a result of this case the debate within India about surrogacy has intensified. In the
controversy that followed, several infirmities in the arrangement came to light
including the absence of a legal contract between the parties, a fact that many
saw as a worrying reminder of the potential for exploitation of native surrogates.

These problems exist because surrogacy contracts are often not clear and hold no
legal value. Futhermore, some countries lack specific surrogacy legislation.
Those that do have these laws often fail to implement or enforce them. An
explanation for this lies probably in the assumption that up until now, medical
technology, especially reproductive technology, needed no justification. Its
'benevolent' nature was taken for granted. However with the commercialization
of surrogacy, social, demographic, ethical, legal and philosophical issues have
been raised. As the debates have shown, these developments have the ability to
alter not only the face, but the very soul of human civilization. It might bring
about the restructuring of society on lines of a 'reproductive brothel model' in
which women can sell reproductive capacities the same way old time prostitutes
sold sexual ones (Ravindra, 1992). Currently, in the US, due to the fact that few
states have developed legislation, disputes over surrogate parenting often go to
 court (Markens, 2007). Therefore, clear and enforceable laws should be
implemented.

AKI MUKI ADOPTION CASE

Aki Mukai, a notable Japanese television personality married to former

professional wrestler Nobuhiko Takada, was at the center of another major
surrogacy controversy in Japan. In September of 2000, shortly after learning she
was pregnant for the first time, Mukai was diagnosed with cervical cancer. 132
She underwent two unsuccessful operations aimed at treating the cancer without
terminating the pregnancy but eventually agreed to terminate the pregnancy and
undergo a hysterectomy that would leave her ovaries intact.133 She went public
with these initial details in December of the same year and continued to keep her
story public as it progressed.134 In 2002, she traveled to Nevada and had her
eggs retrieved for IVF.135 A gestational surrogate there twice attempted to get
pregnant, but neither attempt succeeded.136 Mukai returned to Nevada in 2003
to work with a different gestational surrogate.137 This time, IVF was successful
and the surrogate gave birth to t Although a Nevada court listed Mukai and
Takada as the legal parents of the twins on their birth certificates, Japanese law
mandates that the woman who gives birth to a child is his/her legal mother.139
The twins entered Japan in January 2004 using United States passports, receiving
certificates of alien registration.140 When trying to register the twins birth
certificates, Japanese officials required that Mukai list the American surrogate as
the mother and Takada as the father because of a 1962 Japanese Supreme Court
Decision stating that a person who delivers a child shall be the mother. 141
Under this situation, the twins would gain Japanese citizenship through Takada,
but Mukai would be required to formally adopt the children.142 Mukai decided
to sue to force the government to register the birth certificates to avoid the stigma
of adoption.win boys, Banri and Yuta, in November 2003.
 COMPARATIVE STUDY WITH OTHER STATES REGARD TO SURROGACY
LAWS.
Globally, there is no consensus regarding the legality of surrogacy. In general terms,
countries have adopted four approaches:
(1) Prohibiting all forms of surrogacy;
(2) Leaving surrogacy unregulated;
(3) Expressly permitting and regulating non-commercial (i.e., altruistic) surrogacy
only; and
(4) Allowing all types of surrogacy, including commercial surrogacy
There are a couple of countries with genuinely surrogacy-friendly laws attracting the
majority of worldwide surrogacy to their territories. Amongst them are the US state of
California, India and Ukraine. Here, surrogacy is deliberately tolerated by the legislator
which has enhanced those countries reputation as reliable locations for the surrogacy
business. Argentina is about to pass a bill which allows for gestational surrogacy even
if it has to be preceded by a court judgment, but it must not be remunerated. Several
European countries like Greece and the United Kingdom have also liberalised their
family laws but have so far not acquired notable mandates from the international
side.11 T e Netherlands has not banned surrogacy but has forbidden agencies arranging
surrogacies as well as public of ers by or searches for surrogate mothers.12 In many, if
not most other European countries, surrogacy is forbidden by law.13 A typical example
of tight regulation is Germany. T e German legislator attempts to avoid split
motherhood, to protect the social relationship between the gestational mother and the
baby, and to prevent the exploitation of poor women.14 According to 1(1) of the
German Embryo Protection Act (ESchG) and 13c, 14b of the German Adoption
Agency Act (AdVermiG), someone who assists in ef ecting a surrogacy or who
arranges surrogacies is liable to prosecution. Any private agreement to enter into
surrogacy is deemed immoral and thus void.
USA
Across the fifty U.S. states legal approaches to surrogacy vary widely, from complete
prohibition to some of the most permissive approaches in the world. Indeed, as Richard
F. Storrow remarks, the U.S. is a microcosm of the rest of the world, with the whole
range of global attitudes towards surrogacy subsumed within its borders. Nearly half
of the states have some legislation relating to surrogacy. Some states only have case
law governing surrogacy contracts, and some have no regulation at all. Model laws
intended to bring legal uniformity across the country have had limited success. Today,
however, there is little legislative activity seeking to prohibit surrogacy. Storrow notes
that the legislative trendif there is one at allis toward legalizing surrogacy where it
 is illegal or providing a statutory framework where the industry operates without legal
regulation.
States Where Surrogacy is Expressly Prohibited,
Four states explicitly ban surrogacy: New York, New Jersey, Indiana, and Michigan. In
three of these statesNew York, Indiana and Michigansurrogacy contracts are void
and unenforceable.
In 1989, closely following the highly controversial Baby M case, New York Governor
Cuomo introduced a bill to ban surrogacy within the state. The legislature passed it into
law in 1992, and since that time surrogacy contracts have been prohibited in New York
state. However, the recently proposed Child-Parent Security Act seeks to repeal New
Yorks surrogacy ban, in favor of regulating the practice. The specific provisions of the
proposed Child-Parent Security Act are discussed below in Part 3 of this Report.

States Where Surrogacy Is Expressly Allowed

There are fourteen states that regulate and permit some form of surrogacy via statute.
Even among these states, however, there is little consistency in their approach. For
example, some surrogacy-friendly states allow compensation whereas others prohibit it.
Some states have no restrictions on who can be an intended parent, whereas others only
allow access to married couples with a medical need who are residents in that state.
Similarly, some states have no requirements on who can be a surrogate, whereas others
regulate this considerably. Furthermore, some states only legally address full surrogacy,
and some address both full and partial surrogacy. Additionally, there is a great deal of
variation in the process to establish legal parentage. The examples outlined below seek
to highlight this variation among surrogacy-permissive states. In California, there is a
law explicitly allowing and regulating full surrogacy contracts only. California also
allows compensation for the surrogate, and the law does not clarify whether there is a
reasonableness limitation on the amount that can be paid. California has no restrictions
on who can be a surrogate or an intended parent, and the law does not impose residency
requirement on either intended parents or surrogates. The state also allows for pre-birth
parentage orders (i.e., court order assigning legal parentage status to the intended
parents prior to the birth of the child), but these do not become effective until the
moment of birth.
Florida allows both full and partial surrogacy contracts, but a different law governs
each. Both laws allow compensation for the surrogate for reasonable expenses, and in
both types of contracts the intended parents agree to accept custody of and to assert full
parental rights and responsibilities for the child immediately upon the childs birth. To
enter a full surrogacy contract:
 (1) The intended parents must be married and older than eighteen; and
(2) A licensed physician must certify that the commissioning mother is either unable to
physically gestate a pregnancy or a pregnancy would cause a risk to her physical health
or to the health of the fetus.
For partial surrogacy contracts, the above restrictions do not apply. Because of the
distinction between full and partial surrogacy, pre-birth parentage orders are not
allowed. The intended parents in a full surrogacy contract must file a petition within
three days after the childs birth and the court will amend the birth certificate. In the
partial surrogacy context, if the child is biologically related to the surrogate then she
has the right to rescind the contract up to forty-eight hours after the birth of the child.
Therefore the intended parents must wait at least forty-eight hours after the birth of the
child before seeking a judgment of parentage. In Maine, a new law regulating full
surrogacy will go into effect in July 2016. This law will allow compensation to the
surrogate so long as it is reasonable and negotiated in good faith. Surrogates must be at
least twenty-one years old and have undergone a medical examination. Intended parents
must undergo a medical evaluation and mental health consultation. Both parties must
obtain independent legal representation. The law requires that one party be a resident of
Maine and the surrogate must become pregnant within one year of entering into the
agreement. Virginia adopted, in part, the model Uniform Status of Children of Assisted
Conception Act, the precursor to the model Uniform Parentage Act. Accordingly,
Virginias statute does not distinguish between full and partial surrogacy. Under the
law, compensation for the surrogate is not allowed. The surrogate must have had at
least one previous pregnancy and live birth and must undergo a medical evaluation.
There is also a required home study of the intended parents, filed with the court.
Intended parents must meet the standards of fitness applicable for adoptive parents. The
intended mother must be infertile, unable to bear a child, or unable to do so without
unreasonable risk to the fetus or her health. One of the parties must reside in Virginia.
To transfer parentage, the intended parents must petition within seven days of the birth
of the child. Upon the filing of this notice and a finding that at least one of the intended
parents is the childs genetic parent, the court will order the birth certificate to be
amended.

States Where Surrogacy Is Not Clearly Addressed

A number of states do not clearly address surrogacy either by legislation or through
case law. Among these states there is considerable variation as to whether and how
surrogacy operates. The sampling of the states of Massachusetts, Tennessee, and
Oregon below seeks to demonstrate the variety of legal positions that can result when
 surrogacy is not addressed by statute.
Judicial Interpretations of the Best Interest of the Child
Although the standard for determining custody in U.S. courts is the best interest of the
child standard, courts faced with disputes surrounding surrogacy contracts have
looked more often at issues related to the adults who entered into the contract. This
includes questions such as intent, contract, genetics, and gestation. Very few courts use
the best interest of the child test in cases of surrogacy. In one instance where a court did
look at the best interest of the child standard, an appellate court in California held they
need not even determine the legality of the surrogacy contract because the best interest
of the child determines custody decisions and because private ordering plays a
recognized role in family structures. The court additionally noted that the public policy
concerns related to surrogacy should be addressed by the legislature, rather than the
courts. However, the Supreme Court of California instituted an intent-based test for
determining parentage two years later, stating that determination of parentage must
precede, and should not be dictated by, eventual custody decisions. California courts
now look at the intent of the contracting parties when faced with a surrogacy dispute,
rather than the best interest of the child.
 UK
To understand the inherently complex nature of the problem requires an understanding
of the historical context. The Committee of Inquiry into Human Fertilization and
Embryology, chaired by Baroness Warnock, was established in 1982 and reported in
1984 (the Warnock Report). Its purpose was to consider the ethical implications of
assisted reproduction, including surrogacy, following the birth of the first test tube baby
in 1978 and in the knowledge that fertility treatment was here to stay. Its findings set
the tone and basis of surrogacy legislation that continues today. The committee was
unable to reach agreement about surrogacy which they said presented us with some of
the most difficult problems we encountered. The committee placed great weight on the
moral and social objections to surrogacy, agreeing unanimously that surrogacy solely
for convenience was totally ethically unacceptable. Although the committee
recognized some potential benefits, including the generosity of the surrogate mothers
act and the happiness of the commissioning parents, it commented that:
Even in compelling medical circumstances the danger of exploitation of one human
being by another appears to the majority of us far to outweigh the potential benefits, in
almost every case. That people should treat others as a means to their own ends,
however desirable the consequences, must always be liable to moral objection. Such
treatment of one person by another becomes positively exploitative when financial
interests are involved.
The Warnock Report therefore recommended that legislation be enacted to criminalize
any third party involvement in surrogacy, with offences catching introductory
organizations and fertility doctors who treated surrogate mothers. Regulation of
surrogacy was opposed on the basis that this might in fact encourage its development.
While the Warnock Report therefore stopped short of recommending the
criminalization of the surrogate mother and commissioning parents, its
recommendations would (had they been implemented) have prohibited all surrogacy
arrangements in the UK other than those made privately without the involvement of
any medical services. Surrogacy was regarded on the whole as distasteful, and
conservative morality prescribed that it was in societys best interests to legislate to
discourage it on public policy grounds. However, the committee was not in agreement
and a dissenting opinion was also attached as an appendix to the Warnock Report. This
minority view, which took a more liberal approach, argued that public opinion on
surrogacy was not yet fully formed and that, with demand likely to continue, the door
should be left ajar. The minority too strongly opposed commercial surrogacy, and
 recommended that, if surrogacy was allowed, it should operate only on a non-
commercial basis and that it should be closely regulated.
Surrogacy arrangements in the UK are lawful, although it is an offence for third parties
to broker arrangements on a commercial basis, and it is an offence to advertise in
connection with making a surrogacy arrangement. In practice, several non-profit
making agencies have grown up in the UK which assist contacts to be made between
surrogates and commissioning parents. These agencies (as a result of their non-
commercial nature) have never been prosecuted under the 1985 Act and have now been
formally legalised through the 2008 Act. However, the reality is that, for patients not
lucky enough to have a friend or relative to volunteer, the process of finding a suitable
UK surrogate mother is often long and uncertain. Surrogacy arrangements in the UK
are subject to complex rules on legal parenthood and commissioning parents will not
automatically be treated as the legal parents of the child, even if the child is theirs
biologically. The legal mother at birth will always be the surrogate mother under
English law. Who is the legal father depends on the marital status of the surrogate
mother: if she is married or in a civil partnership at conception, her husband/partner
will be the irrebutable second legal parent; if she is single, the commissioning father
can claim fatherhood if he is the biological father. In either case, the commissioning
parents may apply to the court within 6 months of the birth for a parental order
(currently under s 30 of the 1990 Act, although this will be replaced by s 54 of the 2008
Act as from 6 April 2010). A parental order reassigns parenthood to both
commissioning parents and extinguishes the status of the surrogate mother (and her
husband/partner). Various conditions must be met for the order to be granted including,
most crucially in the international context, that at least one of the commissioning
parents must be domiciled in a part of the UK, and that no more than reasonable
expenses has been paid to the surrogate mother, unless the payment is authorized by the
court. The grant of a parental order also relies on the consent of the surrogate mother;
parenthood will only be transferred to the commissioning parents if the surrogate
mother (and her husband) agrees, and if the child is in the care of the commissioning
parents at both the time of the application and the time of the order. An arrangement
which is reneged on cannot be enforced through the courts contractually (although in
practice the family courts may be willing to intercede, as in Re N (A Child) [2008] 1
FLR 198). In other words, English law allows and supports surrogacy if it fits the
model deemed acceptable: altruistic, non-commercial, consenting and privately
arranged.
ENGLISH LAWS IN ITS INTERNATIONAL CONTEXT
English law is drafted specifically to deter the use of the UK for forum shopping on
surrogacy. In addition to wider rules of jurisdiction, s 30(3) of the 1990 Act provides
that one of the conditions for obtaining a parental order is that at least one of the
commissioning parents is domiciled in a part of the UK, Channel Islands or Isle of
Man. The court has no power to waive this requirement, which means that if a
commissioning couple does not satisfy the domicile requirement, a parental order will
simply not be available.
This is exactly what happened in the case of Re G (Surrogacy: Foreign Domicile)
[2008] 1 FLR 1047. The case involved a Turkish couple who travelled to the UK and
conceived with a British surrogate mother. When the couple applied for a parental order
(having been assured by the surrogacy agency which facilitated the arrangement that
other foreign couples had successfully obtained such an order in the past), concerns
over domicile resulted in the case being transferred to the High Court where Mr Justice
McFarlane held that a parental order could not be given. There followed 9 months of
litigation which ultimately resulted in the grant of an order under s 84 of the Adoption
and Children Act 2002, granting parental responsibility to the commissioning parents
and authorising the child to be taken out of the UK to be adopted in Turkey. Although
the position was ultimately successfully resolved in favour of the commissioning
parents, Mr Justice McFarlane warned that English law should not be used by foreign
couples seeking to evade more restrictive home legislation and that, to compensate the
public purse, any similar future cases could expect costs orders to be made accordingly.
Mr Justice McFarlane also expressed his concerns about the lack of regulation of
surrogacy in the UK (again echoing the Warnock minority view and the Brazier Report)
and sent a copy of his judgment to the government to urge reform.
UK is widely cited as having a comprehensive legal regime for the facilitation of
surrogacy agreements, it in fact only provides for the post-birth transfer of legal
parenthood in certain circumstances and when certain conditions have been met. The
perception that the UK fully legalises surrogacy may be due, in part, to the fact that
since the mid-1980s, the UK has had a piece of legislation specific to surrogacy: the
Surrogacy Arrangements Act 1985 (SAA 1985). However, the primary purpose of the
SAA 1985 was to prohibit and criminalise certain commercial activities in relation to
surrogacy agreements, such as advertising, brokering and profit-making by third party
intermediates to a surrogacy agreement. The SAA 1985 did not prohibit surrogacy
outright, with section 2(2) making it clear that it is not a criminal offence for a woman
to enter into an agreement with a view to being a surrogate mother, or for someone else
to enter into an agreement with a view to a woman having a child for them. Nor did it
provide for any ex-ante framework for surrogacy arrangements or legal parenthood.
The motivation for the legislation came from two main sources. The first was the
response to a high profile surrogacy case known as the Baby Cotton case, whereby a
woman called Kim Cotton agreed to be a surrogate mother for a married couple in
return for the payment of a fee. This was around the same time as the publication of the
Warnock Committees Report into the regulation of human fertilisation and
embryology. Although the Warnock Report was generally supportive of emerging
treatments for infertility involving emerging reproductive technology (e.g. donor
insemination, IVF, donation and storage of gametes), surrogacy as a reproductive
technique found disapproval. Although the Warnock Report did not recommend the
prohibition of surrogacy, it did recommend that regulation should discourage people
from entering into surrogacy agreements.
The legislative framework that emerged from the Warnock Report, the Human
Fertilization and Embryology Act 1990 (HFEA 1990), inserted section 1B into the SRA
1985. This provision codified the unenforceability of surrogacy agreements in UK law.
This was the only provision relating to surrogacy that the original version of the HFEA
1990 contained.
However, in 1992, the Parental Order provisions, providing for the post-birth transfer
of legal parenthood when certain conditions have been met, were inserted following a
campaign by an MP on behalf of married couple in his constituency who were in the
position of having to adopt their genetic children following a surrogacy agreement in
order to establish legal parenthood. A Parental Order is effectively a type of fast-track
adoption procedure, providing for the ex-post facto transfer of legal parenthood to the
intended parents of a child born following surrogacy agreements. A formal application
must be made to the court and the judge will consider whether all the criteria have been
met. Until a Parental Order has been applied for and approved, the surrogate mother
will be the legal mother, and her partner, if she has one, may well be the second legal
 AUSTRALIA
In Australia, surrogacy is directly regulated10 at the state and territory level.11 In all
Australian jurisdictions but the Northern Territory, commercial surrogacy is prohibited
and criminalized. Following recent reforms, altruistic surrogacy is now permitted in
most Australian jurisdictions, but it is diversely and extensively regulated. There is
even greater diversity in the legal treatment of surrogacy internationally. Some
countries do not permit any form of surrogacy; others allow commercial surrogacy
subject to regulations; yet others do not regulate it at all.
In 2000, the Australian Capital Territory introduced legislation which allowed the
transfer of parentage from the birth mother to the intended parents. Mainland states
have since enacted legislation which resembles the ACT model. The surrogacy
agreement is the source of the courts jurisdiction to make parentage orders, which
legally recognize the parental status of the intended parents. The agreement is not
binding per se, because the courts must ensure compliance with many requirements,
especially that the birth mother consents to the application, and that the order is in the
best interests of the child. The agreement is most likely to be effective in Western
Australia where the legislation creates a presumption that effectively upholding the
agreement is in the childs best interests.
Requirements apply in relation to a wide range of matters, which differ in many
respects between the jurisdictions. For the purposes of the analysis in this article, the
requirements can be divided into those which are independent of any nexus between the
surrogacy arrangement and the legal system in which the application for a parentage
order is made and direct and indirect nexus requirements.

10 The legal treatment of surrogacy involves many areas of law other than the legislation which directly regulates
surrogacy, including child welfare law, the law of adoption and parental responsibility; the law regulating reproductive
technology generally; the law of personal status including citizenship; criminal law; and immigration law. This article is
mainly concerned with the legislation directly regulating surrogacy, although it refers also in some detail to the Family
Courts jurisdiction to make parenting orders: see below at text accompanying nn 8995

11 Surrogacy refers to an agreement under which a woman (the birth mother) agrees to bear a child or children for a
person or a couple (the intended parent or parents) who are unable or unwilling to conceive and bear children, with the
mutual intention that the intended parents will have the responsibility of parenting the child or children born as a result of
the arrangement, and that the birth mother and her partner will not have that responsibility. The intended parents usually
specifically agree to compensate the birth mother, either to ensure that her expenses are covered (altruistic surrogacy), or
to provide a payment in excess of reimbursement for reasonable expenses (commercial surrogacy). The child is sometimes
conceived with the assistance of artificial reproductive treatment, but this is not always the case. The birth mother is
sometimes called the surrogate mother. Intended parents are sometimes called intending, commissioning or substitute
parents. All Australian jurisdictions except the Northern Territory have specific legislation directly addressing surrogacy
In each jurisdiction, many non-nexus requirements must be satisfied before a parentage
order can be made. These vary between the different jurisdictions on matters including
the minimum age of the birth mother, her partner, and the intended parents. A minority
of jurisdictions impose more onerous requirements than other jurisdictions on a range
of factors, such as:
That the birth mother has previously given birth to a live child;
That the birth mother is not genetically related to the child, or that one of the
intending parents is genetically related to the child, or both;
That only couples can be intended parents;
That a male cannot be the sole intended parent; and
That same sex couples cannot be intended parents.
These variations create the possibility of a conflict of laws between the legislation of
different jurisdictions. A conflict may arise as a matter of design, in that some or all of
the parties to a surrogacy arrangement might attempt to avail themselves of a more
attractive regime within Australia; in this article, I refer to this as regime shopping. For
example, a same sex couple from South Australia might attempt to access altruistic
surrogacy in another state or in the Australian Capital Territory, where same sex
partners may become intended parents. A conflict of laws might also arise incidentally
as a consequence of population mobility, or just because the parties are from different
states. Where a conflict of laws occurs as a matter of design, it may raise the charge that
the parties have acted evasively. This possibility attracted some attention in recent
reports leading to the current legislative regimes. The consequence of population
mobility for regulating altruistic surrogacy does not appear to have been considered at
all in the design of the Australian legislation.
Although there are no legal provisions relating to the practice of surrogacy on a federal
level, the vast majority of the Australian states have recently introduced legislation that
allows for and expressly regulates surrogacy.
The individual state legislatures are free to impose their own specific conditions that set
limits, ban, or impose (sometimes severe) hurdles to the legal acknowledgement of the
family relationships stemming from a surrogacy contract. Commercial surrogacy is
prohibited in all states, and a criminal conviction is more than a mere possibility.
Surrogacy services for the provision of which no money exchange is arranged, namely
the form of altruistic surrogacy, is allowed by all state legislations, with the exception
of the Tasmanian Surrogacy Contracts Act 1993, which unequivocally renders all
surrogacy arrangements void and unenforceable as contrary to the social ethos and
policy (paragraph 7).
A series of major reforms in 2008 to the federal-level Family Law Act 1975 (FLA)
brought the issue of surrogacy and legal parenthood to the fore of public debate. In its
previous form, the FLA did not deal with the matter of legal parenthood in cases of
collaborative reproduction involving same-sex lesbian couples or surrogacy.
Under the 2008 amendments of subsection 60HB of the FLA, the definitions of
parent and child in federal law have been extended to include lesbian parents who
have a child through collaborative reproduction and/or fertility treatment, and to some
parents who have children through surrogacy arrangements. The effect of subsection
60HB FLA is to clarify that any transfer of legal parenthood by state and territory
courts for surrogacy families alters legal parental status under the FLA.
Up until 2010, surrogacy laws in Australia varied significantly from state to state.
However, some uniformity was accomplished when all states except Tasmania
adopted laws that prohibited commercial surrogacy and accepted the occurrence of
(gestational) surrogacy in limited circumstances.
The legal regimes in most states now currently present the option of a court-based
issuance of a parentage order that leads to the transfer of legal parenthood to the
commissioning couple. This possibility is generally available to all opposite and same-
sex couples in legal or de facto relationships. The above mentioned legal process was
deemed to be in accordance with the best interests of the child because it ensures that
the child will not be left stateless or parentless, as well as protecting the surrogate
mother from a coerced consent when offering her gestational services.
 UKRAINE
Ukraine is one of the few countries in the world, with stable surrogacy laws.
Commercial Surrogacy in Ukraine is legal since the end of 2006. The local law stats
intended parents are the only parents for the new born. Intended parents name is on the
birth certificate, even in case of an egg donation. Surrogate mother relinquishes all her
rights to the baby, when she signs the contract with intended parents, and cannot change
her mind. Egg donation is anonymous and donor does not have any information
regarding intended parents.
In the sphere of surrogacy, Ukrainian legislators have proven to be far more progressive
than many of their European colleagues. Today, Ukraine is one of the very few
surrogacy friendly countries in Europe. Unlike other nations that limit or even ban
surrogacy, in Ukraine the intended parents of child are considered to be biological
parents from the moment of conception, and they are specifically named as biological
parents in the birth certificate without any mentioning of surrogate mother.

Importantly, the surrogate cannot legally keep the child after the birth. On the contrary:
the child is considered to legally belong to the prospective parents from the very
moment conception. In fact, in the legal history of Ukraine, there has not been a single
reported case of a disputed custody claim arising over a surrogate parenting
arrangement or the validity of a surrogacy agreement. In sharp contrast, the laws in
several U.S. states (and in Russian Federation) allow a surrogate mother to keep the
child after its birth, regardless of the agreements between the intended parents and
surrogate mother.
Legal aspects of surrogacy in Ukraine are regulated by Article 123 of The Ukrainian
Family Code (amended December 22, 2006, No. 524-V). A couple can choose between
gestational surrogacy, egg/sperm donation, special embryo adoption programs, or their
combinations. No specific permission from any regulatory body is required. All thats
required is a written informed consent of all parties (intended parents and surrogate)
participating in the surrogacy program and related agreements, confirming the
arrangement.
Surrogacy is also regulated by Order 24 and Order 771 of the Health Ministry of
Ukraine, which deals with medical procedure of artificial insemination and embryo
implantation. Importantly, this Order requires that artificial insemination must be
 carried out only in specially accredited medical institutions in accordance with the
methods approved by the Ministry of Health Care of Ukraine. It also provides a
checklist of information that must be provided to the couple seeking medical assistance,
namely: the details of the medical procedure, the results of medical examination of the
future surrogate mother and medical and legal aspects of the consequences, etc. A
written informed consent of intended and surrogate parents participating in the program
is mandatory.
Who can engage a surrogate agreement in Ukraine?
Heterosexual marries couple, with Medical indications for surrogacy:
Absence of uterus. Deformation of cavity or neck of uterus because of congenital
developmental defects or because of surgical treatments, benign tumors that enable
carrying a pregnancy. Structural-morphological or anatomic changes of endometrium,
which lead to loss of receptivity. Serious somatic diseases - when carrying of a
Pregnancy threatens the health or life of the recipient, but do not influence the health
of a future child. Repeated unsuccessful IVF attempts (four and more) with repeated
obtainment of high quality embryos, transfer of which did not lead to a pregnancy.

NETHERLANDS
Commercial surrogacy is prohibited by the Criminal Code and although there is no
specific legal regulation of non-commercial surrogacy, legislation was adopted in 1998
that requires institutions providing IVF services in the context of surrogacy agreements
to comply with a number of criteria, including the guidelines established by the Society
for Obstetrics and Gynaecology. Institutions must also ensure that the intended parents
provide all the necessary genetic material for the pregnancy, thus limiting the provision
of gestational surrogacy to heterosexual couples with functioning gametes. The country
report on the Netherlands in the Annex provides a detailed consideration of the general
legal regime in the Netherlands.

BELGIUM

- Ghent (15th ch.), 18th of May 2009, reforming Youth court. Ghent (27 th ch.), 31st of
March 2009: after an agreement concluded between the biological parents and

The intended mother before childbirth, the child was given to the intended mother so
that she could adopt him/her (traditional surrogacy). The circumstances of the case did
not suggest a for-profit surrogacy. In first instance, the Youth court considered that it
was not necessary to pronounce an enforceable pedagogical measure with regards to
the child. The Court of Appeal reformed this decision and granted the child to an
adoption family for a period of six months, considering it necessary to take an urgent
enforceable pedagogical measure applying article 37, 2 of the decree on the special
assistance to the youth. The child was then placed in a centre for child care and family
assistance. While this placement was first extended by request of the public prosecutor

(Youth court. Ghent (27th ch.), 4th of November 2009, inedited), the Youth court
settled in favour of the request of the social services, requesting the attribution of the
child to the intended mother, in whose household the child currently lives (Youth court.

Ghent (27th ch.), 4th of November 2009, unpublished.

- Ghent, 5th of September 2005: case Donna: the surrogacy took place in Belgium with
a Belgian surrogate mother and Belgian intended parents. Following the
deterioration of the relations between the surrogate mother and the Belgian couple of
intended parents, the surrogate mother pretended a stillbirth and sold Donna to a Dutch
couple. At first instance, the youth court of Oudenaarde placed Donna under the
provisional tutelage of the social service of the Flemish Community after requesting the
youth court of Utrecht (Netherlands) to transfer the case to it. In appeal, the Court of
Ghent nullified the decision of the youth court of Oudenaarde on the basis of the
territorial incompetence of the Belgian courts. Indeed, the transfer of the Dutch courts
to the Belgian courts was not in conformity with the article 15, 2 of the regulation

Brussels n 2201/2003 of the Council of the 27 th of November on the competence, the

recognition and the execution of decisions in matters of wedlock and in matters of
parentage, abrogating regulation (CE) n 1347/2000, so-called Regulation Brussels II
bis. The case was transferred to the tribunal of Utrecht (see above). However, on 12
October 2012, the criminal court of Oudenaarde sentenced the surrogate mother and
her husband to a year of deferred imprisonment and a fine of 1,650 EUR for having
inflicted inhumane and degrading treatment to the little Donna. The Dutch couple
who bought the child was also sentenced to a 1,650 EUR fine, whilst the Belgian
couple of intent benefitted of a suspended sentence.

- Civ. Ghent, 24th of December 2009: case J: the surrogacy took place in Belgium with
a Belgian surrogate mother and Dutch intended parents to whom the child was sold
beforehand via Internet. The surrogate mother and her spouse are the genetic parents
of the child. At the moment of birth, the Belgian surrogate mother pretends to be the
Dutch intended mother and, for this reason, the identity of the Dutch intended mother is
registered on the birth certificate instead of the identity of the Belgian surrogate mother.
Parentage in relation to the child of the intended father is established by presumption of
paternity, him being married to the intended mother. When the fraud is revealed, a
penal enquiry takes place in Belgium and the Netherlands and, as a result, the child is
withdrawn from the Dutch intended parents and placed with a host family in Belgium.
The results of the penal enquiry clearly demonstrate that the Belgian woman gave birth
to the child. The action undertook by the Belgian surrogate mother before the tribunal
of first instance of Ghent contests the parentage of the Dutch intended parents. The
Belgian courts are competent as the child has habitual residence on the Belgian territory
(article 61 of the Code of international private law, on the rules of international
competence in matters of parentage). The applicable law in the case of the contestation
of paternity and maternity is the Dutch law as designed by the rule of conflict of laws in
matters of parentage (article 62 of the Code of Private international law). Indeed, it is
the law of the State from which the intended parents whose parentage is contested
are citizens of. According to article 209 of the Dutch Civil code, parentage as
established in a birth certificate cannot be contested if there is a de facto parent-child
relation between the child and the person mentioned in the birth certificate. The tribunal
considered that in the current case this was not the case for the Dutch parents to the
extent that the child had not lived but only a few months with the Dutch family and was
soon placed in a Belgian host family.

FRANCE
Surrogacy is currently illegal in France; however, French intended parents often pursue
surrogacy abroad and return to France. many children born through surrogacy remained
in a sort of legal limbo, with no official recognition by the French government.

The court ruled that children born abroad through surrogacy may be entered into the
civil registry, obtain French birth certificates and claim citizenship. Their decision
changes the previous jurisprudence for all surrogate children. The verdict follows a
2014 ruling from the European Court of Human Rights, which claimed that Frances
surrogacy laws represented an attack on the childs identity, for which descent is an
essential component.
Prior to this ruling, life for many French surrogate children was made complicated as
many werent allowed passports, government health care, social security, or
inheritance. They were essentially written off by the government due to their legally-
contested method of conception. Now these children will be rid of the social stigma
they previously faced and enjoy all the rights that come with citizenship and legal
recognition.
Even though surrogacy is illegal in France, the minister of justice, Christiane Taubira,
tweeted, children shouldnt have to answer to the manner of their conception. They are
entitled to their civil status and identity. This undoubtedly provides relief to the
parents of the thousands of surrogate children living in France.

For children, their connection with their parents is invaluable. Before this decision,
many French surrogate children had no legal ties to their parents. Not only did this
make legal matters difficult but it also presented an emotional challenge for both the
child and the parents.
The court made sure to clarify that this ruling had no impact on surrogacys legality in
France, which remains against the law.
Since 1994, any type of commercial or altruistic form of surrogacy arrangement is
illegal or unlawful and is not sanctioned by the law.
CANADA
Surrogacy is the process whereby a woman carries a child for intended parents, with the
intention of giving the child to the intended parents upon the child's birth. The relevant
legislation and legal issues arising out of surrogacy agreements are complicated and the
penalties for failing to abide by the laws regarding assisted human reproduction in
Canada can be very severe so take care! As soon as you are seriously considering
involving a third party in building your family, consult with a qualified fertility lawyer.
Contrary to popular belief, surrogacy is legal in Canada. The Assisted Human
Reproduction Act prohibits the provision or acceptance of consideration to a woman for
acting as a surrogate; it is illegal to pay a surrogate mother for her services. However,
it is legal to reimburse a surrogate mother for her reasonable expenses incurred as a
result of the surrogacy.
The exact cost of surrogacy in Canada is difficult to pin down. There are two reasons
for this: 1. although it is illegal to pay a surrogate in Canada, intended parents may
reimburse her for most reasonable expenses incurred directly as a result of the
surrogacy. Accordingly, each situation is different and intended parents should expect
to reimburse a surrogate in accordance with the specific circumstances of the surrogate.
For example, if a surrogate has a complicated pregnancy and is on bed rest, intended
parents can expect that more expenses are likely to be incurred than if the pregnancy is
uncomplicated. If the gestational carrier lives far from the IVF clinic, the travel
expenses are typically at the expense of the intended parents. To add some certainty for
all parties, surrogacy agreements often contractually limit the amount that intended
parents will legally be liable to reimburse a surrogate for her reasonable incurred
expenses. 2. IVF is not a perfect science. Sometimes a surrogate undergoes numerous
transfers, which increases the overall cost of surrogacy. All this being said, I frequently
speak with potential intended parents about the possible costs involved with surrogacy
in Canada and have unanimously been told by clients that surrogacy in Canada is a
more cost-effective option than in the United States.
There are two types of surrogacy: traditional surrogacy where the surrogate mother is
genetically related to the child she is carrying on behalf of the intended parent, and
gestational surrogacy where the gestational carrier has no genetic connection to the
child she is carrying (i.e. either the intended mother's ova are used, or those of an egg
donor). Traditional surrogacy may seem like an attractive option because without the
cost of IVF, the medical process may be less expensive. However, from a legal
perspective, traditional surrogacy is fraught with danger and few fertility clinics will
engage in the practice. That being said, traditional surrogacy is legal and frequently
happens in Canada, although most often outside of a clinic setting.
A surrogacy lawyer can assist you in navigating the murky Canadian fertility laws. The
Assisted Human Reproduction Act governs surrogacy, but also governs how intended
parents and surrogate mothers find each other so it is worth contacting a fertility lawyer
early on in the process. Once the intended parents and the surrogate mother have
decided that they would like to work together in building the intended parents' family, a
surrogacy agreement (often erroneously referred to as a surrogacy contract) must be
drafted and negotiated, setting out the legal obligations and rights of each party to the
agreement. Once a baby is born via surrogacy, further legal steps need to be taken in
order for the intended parents, and not the surrogate or her husband or partner, if any, to
be declared the legal parents of the child.

In Canada surrogacy is regulated by the AHRA which controls and regulates acts that
use ARTs. The Act is largely set within a deterrent framework to prevent social harms
including the potential consequences of co modification. The passing of the Act in
2004 however, was not without controversy and three previous iterations, indicating the
lack of consensus amongst Canadians as to how activities that use ARTs should be
legislated upon. Prior attempts to legislate on issue began after the Royal Commission
on New Reproductive Technologies (the issued its report Proceed with Care: the
Final Report of the Royal Commission on New Reproductive Technologies (Final
Report) in 1993. The Commission was led by five governmentappointed
Commissioners and was set up to examine the current and potential medical and
scientific developments related to new reproductive technologies so as to consider the
social, ethical, health, research, legal and economic implications of the new
technologies. It was recommended that both altruistic and commercial surrogacy be
banned out of consideration for the above mentioned dominant surrogacy concerns of
the time namely the commodification of the surrogate and the child, the objective
treatment of women as reproductive vessels and the potential for exploitation of the
surrogate either by their own families or by the commissioning parents.
ISRAEL
One of the reasons for the development of the Israeli model of surrogacy was to combat
a falling birth rate. Thus, unlike in the UK, where government preoccupations of
healthcare are far removed from surrogate arrangements, Israeli legislation actively
encourages infertile Israeli women to utilize ARTs for reproduction. Effort was put in
to develop a regulatory regime that would harness the use of surrogacy as viable
alternative to infertility treatment.
The legal treatment of surrogacy in Israel shifted from a ban on commercial surrogacy
in the aftermath of the Baby M case in 1988, to the legalization and regulation of
surrogacy under a complex and arguably comprehensive regulatory scheme in 1996.
The turnaround in policy was affected by three events. First, there was a pragmatic
need to reproduce and populate the nation, which was born out of the emotional
needs of a people in a permanent war, reinforced by the governmental encouragement
and social pressure to bear children and manifested in the population as the Jewish
Israeli womans national mission.
Second, in Nachmani v Nachmani where the court awarded an estranged couple's
frozen preembryos to the childless wife so that she could attempt to implant the pre
embryos in a surrogate the existence of the right to be a parent was recognised by the
Israeli Supreme Court to be stronger than a man's right not to be a father. Infertile
couples in Israel had already begun to exercise this right by travelling to the United
States where surrogacy centers operated to participate in surrogate arrangements
However this was less advantageous to the infertile: not only was there the expense of
travel and the cost of a commercial surrogate arrangement, but where the surrogate was
not Jewish, the child was not able to inherit his or her Jewish identity.
A third impetus for the change in the policy occurred when the Ministry of Health was
sued by the Nachmani couple before their estrangement, when they sought to overturn
the ban on surrogacy. The couple asserted that the legal regulations on surrogacy set out
by the Ministry were promulgated without proper authority and that the rules lacked a
reasonable basis. The Ministry not only settled the case but also set up a committee
the Aloni Commission (the Commission) to investigate the practice of surrogacy.
What was notable with respect to the Commission was that it was the first committee
 in the history of Israel to study issues that were related to women that actually
composed of half women members.
ALONI COMMISSION REPORT
The Commission proposed a liberal regulatory framework that reflected its belief that
the principles of autonomy and privacy require minimum state interference in human
reproduction. However, it also gave credence to the feminist perspectives advocated by
its members and this was reflected in its recommendations. Thus while it suggested that
surrogacy be allowed in Israel, it also recommended firstly that a government
committee be set up to provide psychological counseling for all the parties, secondly
that the surrogate should be paid only for expenditure and thirdly that the surrogate
agreements not be enforceable so as to allow the surrogate to change her mind.
The Commissions recommendations were also indicative of the pragmatic approach
Israel took to the promulgation of surrogate arrangements in the country. The moral
objections to surrogacy that contribute to the reluctance of the Canadian and UK
legislature to accept surrogacy as a viable alternative to infertility treatment, are
overshadowed in Israel by the more prevalent cultural and religious imperative to
reproduce. Jewish doctrine (Halakha) sets out a Jewish duty to procreate as instructed
by the Jewish commandment to be fruitful and multiply and emphasizes domestic and
family integrity which speak to the importance of childrearing by practicing
Jews. Halakha also suggests an obligation to help a childless couple fulfill this duty
under the Jewish commandment of loving kindness that arguably provides an incentive
for potential surrogates to volunteer to help an infertile couple.
SURROGACY LEGISLATION:
Because the social morality of surrogacy in Israel is tied to the guidance given by
Halakhic precepts, regulating surrogacy in Israel involved a compromise between the
liberal views of the secular Israelis and these restrictions imposed on surrogacy by the
Jewish orthodox establishment. Thus, the Surrogate Motherhood Agreements
(Approval of the Agreement and Status of Newborn) Law 57561996 (Surrogacy
Law) that was eventually passed was far more conservative than the regulatory
framework suggested by the Commission.
It is significant that the restrictions set out by Halakha when incorporated into the
Surrogacy Law resulted in surrogacy in Israel being only plausible when not conducted
on an altruistic basis. The Commission however, had envisioned surrogacy in Israel to
be a typically altruistic arrangement. This was because the Commission felt, as do the
policy makers in the UK and Canada, that such arrangements would not be as
exploitative of vulnerable women in difficult financial circumstances as commercial
 arrangements. In light of the typical socioeconomic disparity of the contracting
parties, the Commission believed that surrogates in a compensated arrangement may
not have been in a position to give informed consent, to ensure their welfare and to
protect their rights.
The Israeli Parliament, the Knesset, appeared to be aware of this concern when they set
out a comprehensive regulatory regime in the Surrogacy Law. The regime was built on
a need for state intervention in surrogacy so as to protect not just the surrogate but the
other parties who may also be affected by the arrangement the commissioning parents
and the birthed child.
To that end, surrogate arrangements in Israel must be authorized by the state appointed
committee for Approving Surrogate Motherhood Agreements (the Approving
Committee or the Committee). The Approving Committees role in the regulation of
surrogacy in Israel is paramount. It vets every surrogate application and awards couples
and surrogates the right to enter legally binding surrogate arrangements by determining
if the parties meet the strict criteria of suitability set out in Surrogacy Law. Most
importantly, it aims to give the optimal measure of protection to each [party] while
achieving the right balance between the interests and rights of each [party]. To ensure
that the Approving Committee has the necessary experience, the committee members
are drawn from a variety of disciplines, nominated by the Health Minister and includes
seven members, at least three of whom are male and three, female. It would be made up
of two physicians qualified in obstetrics and gynaecology, a physician qualified in
internal medicine, a clinical psychologist, a social worker, a lawyer as public
representative and a clergyman, according to the religion of the parties involved. The
decisions of the Committee must be accepted by the majority of its members, and must
be made in the presence of at least five of the members including the chairman.
LEGAL RIGHTS OF SURROGATE:
The Surrogacy Law is also structured to ensure that no provision contradicts the right
of the surrogate mother to excess her free will in accessing medical treatments or
undertaking a medical procedure including the interruption of her pregnancy.456 The
Approving Committee requires a clause to be inserted into the surrogacy agreement
into the Agreement to ensure that both parties are aware that neither the commissioning
couple nor any other party has the right to control the surrogates behaviour during
pregnancy, 457 including her choices with respect to nutrition, her drinking habits,
sexual behaviour, or use of drugs. It will also be stipulated in the agreement that the
commissioning couple cannot be present at or intervene in any of the surrogates
prenatal examinations or at the birth of the child without the consent of the
 surrogate.458 They also cannot interfere in the prenatal care received by the surrogate,
nor can they force her to undergo invasive and noninvasive prenatal procedures, such
as amniocentesis, against her will.
ENFORCEMENT OF PAPER:
The Surrogacy Law also ensures compliance with the regulations by enforcing
penalties for transgressions. For example, the establishment of a surrogacy agreement
without the authorization of the Approving Committee is a criminal act that carries a
punishment of one year in prison for the party that offers, gives or asks money or
benefits for participation in such an agreement. Even where the Approving Committee
authorizes agreement, any deviation from the payments approved by the Approvals
Committee is an offence also punishable with oneyear imprisonment.
The Surrogacy Law attempts to ensure the welfare of the child by penalizing the
transfer and acceptance of a child when not in the presence of the social worker (or
without a court order) with a punishment of one year in prison. In order to protect the
privacy of the child as well as the other parties to the arrangement, the publication of
details from the Committees discussions that include information that could identify
the surrogate, the commissioning parents or the child of the parties involved is
forbidden and carries a punishment of one year in prison.

JAPAN
Japanese physicians have traditionally been very sympathetic towards couples who
struggle to conceive and have practiced different forms of ART for decades. Artificial
insemination was first performed in Japan in 1949 and IVF has been a widespread
practice since 1983. This open acceptance of ART led an American lawyer to open the
Infertility and Surrogate Mother Information Center (hereinafter Center), a
commercial surrogate matching service agency that paired infertile Japanese women
with American surrogates in Tokyo in 1991. As of 2010, the Center was still active and
received 300-400 inquiries a year. Japanese physicians, however, have been hesitant to
expand beyond artificial insemination and IVF with the parents gametes. For example,
in 1997, Dr. Yahiro Netsu began performing IVF using donor eggs and/or sperm. This
practice violated Japanese Society of Obstetrics and Gynecology (JSOG) guidelines
that require using only a couples own gametes in IVF, leading to the revocation of Dr.
Netsus JSOG membership but not his license to practice medicine. He was readmitted
to JSOG following a settlement in 2004. JSOGs restrictions on IVF and surrogacy
have caused Japanese couples to travel to countries such as the United States and India
to look for solutions to infertility not available in Japan. Surrogacy in Japan has faced
the same uphill battle. Dr. Netsu showed a willingness to buck authority again in 2001
when he allowed two sisters to enter into a surrogacy agreement. He then decided to
continue performing IVF on women serving as surrogates. At the time, surrogacy was
neither explicitly legal nor illegal in Japan, though JSOG recommended that its
members not work with couples that wanted to use surrogates. Although it lacks the
force of law, JSOG formally issued guidelines banning the use of surrogates in 2003,
supporting its ban by stating that surrogacy harms children, involves significant mental
and physical risk, complicates family relationships, and does not promote acceptable
social ethics. The Evaluation Section for Advanced Medical Care, a committee
governed by the Health Sciences Council, supported JSOGs position with findings that
centered on the well-being of unborn children, valuing people for more than their
reproductive abilities, safety, avoiding eugenics and commercialism, and protecting
human dignity. Dr. Netsu, however, continued to work with surrogates and by 2010 had
fertilized fifteen surrogates via IVF, which resulted in eight births. Furthermore, as of
2008, over 100 infertile couples sought his advice. Because of this practice, JSOG
issued a second major violation against Dr. Netsu in 2009 Though Dr. Netsu has
continued to work with patients who want to enter into surrogacy agreements, he will
only do so in very specific circumstances. He requires that his patients meet the
following conditions:
(1) Women who have no uterus and cannot carry a pregnancy to term;
(2) Intended couple must be legally married and both able to donate sperm and eggs;
(3) surrogates also have to be married and already have children of their own;
(4) Surrogates, who usually are the wifes mother or sister, serve on a voluntary basis
and receive no financial remuneration;
(5) Surrogates will be registered as the mother of the child and then the child will be
adopted by the intended couple.
In 2008, the Assisted Reproductive Technologies Review Committee gave ten
recommendations:
(1) Surrogacy should be prohibited by specific law;
(2) Commercial surrogacy should be made an offense, punishing doctors and
intermediaries;
(3) Surrogacy may be exceptionally permitted on a trial basis;
(4) A regulatory agency responsible for administrating [clinical trials for surrogacy]
should be established;
(5) Surrogates should be the legal mother of the child even in the above-mentioned
experimental surrogacy cases or cases of surrogacy performed overseas;
(6) The child may be adopted by the intended parents in order to establish the parent-
child relationship, including the above-mentioned experimental surrogacy cases and
cases of surrogacy performed overseas;
(7) The right to know one's origins should be guaranteed when considering the child's
welfare;
(8) Discussions should continue, especially regarding the issues not covered by the
report, such as egg donations and post-mortem reproduction;
(9) A public institute and a public standing committee to deal with bioethics and policy
planning should be established;
(10) The child's welfare should always be given high priority when discussing assisted
reproductive technology.
The committee further felt that surrogacy should be banned because it treats an
individual solely as a tool for reproduction and creates considerable health risks for
the surrogate while she is pregnant.

RUSSIA
Russia is one of the few lucky countries where surrogacy is allowed by law. The legal
aspects of surrogacy are stipulated by the Family Code of the Russian Federation and
the Russian Law on the Population Healthcare. The medical aspect of surrogacy is spelt
out in Order 67 issued by the Russian Ministry of Healthcare.
The so-called Russian legislation gaps, the issues that are not clearly spelt out in the
Russian legislation, include such issues as:
Unmarried couples right to surrogacy;
Single infertile womens right to surrogacy;
Single mens right to surrogacy.
The evident drawback of the Russian legislation is that the surrogate is not obliged to
give her consent on putting the intended parents names on the babys Birth Certificate
and thus she can keep the baby.

A newborn child always brings a bit of happiness into this world. However, not
everyone is entitled to this happiness. Extraordinary success in the development of
reproductive technologies gave hope to those people who had already lost hope in
having a child of their own. However, as it often happens, development of science
 leaves behind legal and formal regulations of the scientific achievements. Legal norms
are far from being flawless and they always drag behind the development of society.

Nowadays legal support of surrogacy and of other reproductive technologies

programmes is one of the most complicated legal issues. Generally, people tend to think
that surrogacy is carrying your baby by another woman at your request. From the legal
point of view and in terms of common sense; thats not quite right. This article will
cover surrogacy itself as well as pseudosurrogacy.
The Healthcare Act of 22/06/1993 #5487-1, Article 35 Artificial Fertilization and
Embryo Implantation states:

Any major woman of the fertile age is entitled to the right to artificial fertilization and embryo
implantation;

Artificial fertilization and embryo implantation can be carried out in medical institutions that
have obtained a licence for medical practice with written consent of parents (or of a single
woman);

Any information concerning artificial fertilization or embryo implantation, as well as the

donors name are confidential and constitute a medical secret;

Woman is entitled to the right to be aware of the procedure of artificial fertilization and
embryo implantation, of medical and legal consequences, of the genetic examination results, of
the donors appearance and ethnic origin. All this information must be provided by the doctor
in charge.

Thus, any woman, married or not, with her own or her husbands consent (in case shes
married) can now be artificially fecundated and have an embryo implanted in
specialized medical institutions with a licence and thus become a surrogate or
reproductive mother.
Here we should add though, that according to law, surrogacy means carrying a baby
only for a married couple (i.e. for people who are officially married at the moment of
the embryo implantation). In no way is this baby biologically related to the gestational
carrier.
For a married couple to implement a surrogacy programme, they have to obtain certain
medical prescriptions. Certain prerequisites should be taken into account when
implementing a surrogacy programme:
Absence of uterus (acquired or innate);
 Uterus deformations;
Incurable uterus synechia;
Somatic diseases that could impede pregnancy;
Numerous IVF failures.
It should be noted that it is not every woman that can become a surrogate. The Russian
law states that only those women who have given their consent to participate in
surrogacy programmes can become surrogate mothers. Here are the requirements for
surrogate mothers:
age 20-35;
at least one child of her own;
good somatic and mental health.
Thus, according to law, only woman conforming to the requirements mentioned above
can be treated as surrogate mother.
So, according to the Russian law, all other programmes on the basis of reproductive
technologies but different from the one described above are not surrogacy programmes.
In this case, as we have already mentioned it, it would be better to use terms
reproductive maternity and reproductive mothers.

INDIA

Agreements12 generally means the meeting of minds i.e. the parties to an agreement
understanding each others intention, having agreed upon the same subject matter in
same sense. Hence, having a total synchronization of thoughts and actions.Surrogacy
Agreement is an agreement between the Surrogate and the intended parent, which
expresses their necessity and fully volitional desire to opt for Assisted Reproductive
Technique of surrogacy, whereby the surrogate shall bear and gestate the embryo of the
intended parents.The agreement should be precise and clear and must not be ambiguous
so that the agreement is not held void or voidable in the court of law. The contract must
contain certain essentialsmentioned below;

Details about the couple (the intended parents),

Need for surrogacy,
Free will of the surrogate,
Details about the surrogate,
Terms on which the surrogate agrees to gestate the child,

12 According to The Indian Contract Act 1872, section 2(e): Every promise and every set of promises, forming the consideration for
each other, is an agreement.
 The amount on which the surrogate has agreed upon to give birth to anothers child,
What if there is a miscarriage,
What if the child is born dead, etc. and many more such terms.

International Surrogacy Agreements can be enforceable in dual countries, making

international surrogacy legitimate and easy to process. It is a quite a legal complex
situation where the surrogate is an Indian National and the Intended Parents are from
abroad. In such cases, the Intended Parents have to make sure that the surrogacy
agreement is enforceable according to the laws of their land as well. In other words,
with the intended parents coming from abroad and taking up surrogacy in India, it is
important that the surrogacy agreement is compatible to the laws of India as well as the
laws of the home land of the Intended Parent. In 1976, lawyer Noel Keane brokered the
first legal agreement between the intended parents and a traditional surrogate mother.
The surrogate mother did not receive compensation for this.13

LEGAL CONSIDERATIONS IN INDIA

Some years back, the articles and newspapers were hit by news, i.e.The Baby Manjis
case14.BabyManji, a surrogate child of a Japanese couple was involved in legal hassles
ofgetting a visa for the child born in Gujarat. Finally, the Supreme Court of India
coming to her rescue by giving custody of the child to her grandmother legalized
commercial surrogacy in the country. Afterwards, the simplest and cost effectiveness
used by India made it thesurrogacy capital of the world. In 2008, the Supreme Court of
India held that commercial surrogacy is permitted in India, and therefore there is
manifold increase in the international confidence opting for surrogacy in India.
In Jan Balaz v Union of India15, the Gujarat High Court conferred Indian citizenship on
two twin babies fathered through surrogacy by a German national in one of the district
of Gujarat named, Anand.The Honourable Supreme Court of India gave the verdict that
the citizenship of the child born through this process will have the citizenship of its
surrogate mother. Surrogacy in India is regulated or governed by the ICMR (Indian
Council of Medical Research) guidelines

13It was brokered in the U.S in 1976 by the attorney Noel Keane. This surrogacy did not involve a financial recompense because it
was a traditional surrogacy. The first legal surrogacy clinic, called Infertility Center made history with artificial insemination during the
same period. The clinic was founded by Noel Keane and Dr. Ringold

14Baby Manji Yamada vs Union Of India &Anr. on 29 September, 2008

15Jan BalazVs. Anand Municipality and 6 Ors. AIR2010GUJ21

 INDIAN COUNCIL FOR MEDICAL RESEARCHES GUIDELINES FOR
SURROGACY

In 2005, The Indian Council for Medical Research gave guidelines to help regulate
Assisted Reproductive Technology (ART) procedures. The 228th report on ART
procedures discussing the importance, need and steps taken to control surrogacy
arrangements was submitted by the Law Commission of India. 16 The following
observations had been made by the Law Commission:

Surrogacy arrangement will be governed by a contract amongst parties containing all the
essential terms required. For instance, the consent of the surrogate mother to bear the
child, the 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.
A surrogacy arrangement should provide for financial support for the 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.
A surrogacy contract should take care of life insurance cover for surrogate mother.
There should be a biological relationship in the sense that one of the intended parents
should be a donor. 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.
Legislation itself should recognise a surrogate child as the legitimate child of the
commissioning parent(s) without there being any need for adoption or even declaration
of guardian.
The birth certificate of the surrogate child should contain the name(s) of the
commissioning parent(s) only.
Right to privacy of donor as well as surrogate mother should be protected.
Sex-selective surrogacy should be prohibited.
Only the Medical Termination of Pregnancy Act 197, would govern the cases of
abortions.

SURROGACY CONTRACTS UNDER THE INDIAN CONTRACT ACT, 1872

16http://sexed.mdhil.com/laws-on-surrogacy-in-india/
 The Act reflects that all agreements made by the free consent of the parties are
considered to be contracts as competent to enter into contract for a lawful consideration
and lawful object unless they are expressly declared to be void.

According to the provisions, the surrogate mother and the intended parents:

Must have attained the age of majority according to the law to which they are subject
to.
And must be of sound mind.

The consent of the above mentioned parties must be free otherwise the contract would
not be considered valid. Consideration may be pecuniary. Surrogate mother in carrying
the pregnancy to term for any individual or intended parents and blessing them with a
child is a valid consideration. Surrogacy contracts neither fall within the domain of the
agreements which are expressly declared to be void nor unlawful agreements
contaminated with illegality of consideration and object. Unlawful agreements include
agreements which are immoral and opposed to public policy. There is nothing immoral
in having a desire to have a child by the intended parents through surrogacy
arrangement for sharing their life. There is nothing fraudulent in it. As the Honble
Supreme Court has upheld the validity of commercial surrogacy, it doesnt oppose to
any public policy which has triggered the on-going ethical debate. Therefore there is
nothing to prevent non- commercial (altruistic) surrogacy.

In February 2008, the Indian Ministry of Women and Child Development considered
recommending legislation to govern surrogacy, but so far this is not imminent.17

Moreover, a draft of the bill titled as Assisted Reproductive Technologies (Regulation)

Bill, 2010 has been prepared and is likely to be place before the Parliament which is a
step in the right direction. It was framed so that it could help regulate the functioning of
the in-vitro fertilisation (IVF) centres and make the entire process of surrogacy legal.
The ART banks ensure quality check and accountability. The guidelines of the bill are:-

THE SALIENT FEATURES OF THE DRAFT BILL ARE AS FOLLOWS:

1 If Parliament passes the Assisted Reproductive Technology (ART) Bill, renting a womb
by Indian and foreign couple looking for surrogate mothers is expected to become
hassle-free

17http://www.stanford.edu/group/womenscourage/surrogacy/surrogacy_contracts.html
2 The Draft Bill gives gays, singles the legal right to have surrogate babies. It defines a
couple as two persons living together and having a sexual relationship. After the Delhi
High Court verdict on homosexuality, even two gay men can claim to be a couple.
3 A woman in the age-group of 21-35 can become a surrogate mother. She will be
allowed five live births, including her own children. She will not be allowed to donate
more than six times in her life.
4 In case of a single man or a woman, the baby will be his/her legitimate child
5 A child born to an unmarried couple using a surrogate mother and with the consent of
both parties shall be the legitimate child of both of them.
6 During the gestation period, the couple will bear the surrogates expenses and give
monetary help to her.
7 Foreign couples must submit two certificates one on their countrys surrogacy policy
and the other stating that the child born to the surrogate mother will get their countrys
citizenship.
8 Foreign couples have to nominate a local guardian who will take care of the surrogate
during gestation.
9 ART banks, accredited by the government, will maintain a database of prospective
surrogates as well as storing semen and eggs and details of the donor.
10 State boards will give accreditation to ART banks private and government. The
board will have a registration authority which, in turn, will maintain a list of all In-vitro
Fertilisation (IVF) centres and monitor their functioning.
11 The Law Commission of India (2009) described ART industry as an Rs 25,000-crore
pot of gold.

In 2013 India introduced legislation banning surrogacy to unmarried couples, single

persons and other groups.Until very recently, there has been no law concerning
surrogacy in India, which has been legal since 2002.
CURRENT SCENARIO:

In 2012, the Ministry of Home Affairs issued new visa rules that stipulated a number of
conditions, including a bar on single people, unmarried couples, or gay couples from
receiving a medical visa for commissioning surrogacies in India.

In 2013, in order to accommodate suggestions made by different Ministries and

departments, the government made further modifications to the draft Assisted
Reproductive Technology (Regulation) Bill.

Once again, in 2014, an Australian couple was reported to have abandoned one of the
twins it had through a surrogacy arrangement because they already had a child of the
same sex.
 In 2014 a surrogacy ban was placed on homosexual couples and single parents and
the Surrogacy (Regulation) Bill-2016 proposed to be passed by the present
government has made commercial surrogacy illegal in India.

The lack of regulations has raised a number of ethical concerns, particularly regarding
the exploitation and abuse of surrogate mothers.

Hence, comprehensive legislation regulating surrogacy and ART clinics is actually the
need of the hour.

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.

The new law will be notified ten months after it is cleared by the two Houses to allow
mothers, who are already pregnant then, to have the surrogate baby. It will apply to the
whole of India, except Jammu and Kashmir.

The major provisions of the Bill are as follows:

Ban on commercial surrogacy.

Non Resident Indians(NRIs) and Persons of Indian Origins(PIOs) holding Overseas

Citizens of India (OCI) cards have been barred from opting for surrogacy.

Surrogacy is allowed for only heterosexual couples with proven infertility. Single
people or homosexual partners cannot have a baby through surrogacy.

Married couples who have a child naturally or through surrogacy cannot opt for
surrogacy to have another baby.

Married couples can go for surrogacy only after 5 years of their marriage. Also, the
married woman should be between 23 and 50 years and for the man 26 and 55 and are
required to produce their medical certificate regarding their infertility.

Children born through surrogacy would be granted the same rights as any other
biological or adopted child of the woman who carries the pregnancy.
 The Bill allows a couple with a mentally or physically challenged child to go for
surrogacy.

Couples cannot compensate the surrogate mother with financial benefits. Only the
medical bills of the surrogate mother can be paid by the couple.

Heterosexual couples with proven infertility can approach surrogacy only if the
surrogate mother is in close relation to the couple and shall not be paid for becoming a
surrogate mother.

Surrogacy clinics under the Bill will have to maintain their record for 25 years to
ensure that documents are made available in case of a legal dispute.

Establishment of a National Surrogacy Board which will be run by the Health Ministry,
Surrogacy Boards of States and Union Territories to keep a strict check on all the
surrogacy cases done in fertility hospitals and clinics.

Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate

mother, selling/ import of human embryo have all been deemed as violations that are
punishable by a jail term of at least 10 years and a fine of up to Rs 10 lakh.

It also makes it illegal for doctors to do procedures that hurt the surrogate mother and
the babys physical and mental health.

LEGISLATIVE FRAMEWORK

ICMR guidelines

In 2006, the Indian Council of Medical Research (ICMR) published guidelines for
accreditation, supervision and regulation of ART clinics in India. Below are the main
points from these guidelines:

DNA tests are compulsory to determine that the intended parents are indeed the genetic
parents. If this is not the case the child must be adopted instead.
Surrogacy should normally only be an option for patients for whom it would be
physically or medically impossible/ undesirable to carry a baby to term.
 The payments received by the surrogate mothers should be documented and cover all
genuine expenses associated with the pregnancy.
The responsibility of finding a surrogate mother should rest with the couple, or a semen
bank, not the clinic.
A surrogate mother should not be over 45 years of age. The ART clinic should ensure
possible surrogate woman satisfies all the testable criteria to go through a successful
full- term pregnancy.
No woman may act as a surrogate more than three times in her lifetime.

The surrogate mother must declare that she will not use drugs intravenously, and not
undergo blood transfusion excepting of blood obtained through a certified blood bank.
A relative, a known person, as well as a person unknown to the couple may act as a
surrogate mother for the couple.

THE DRAFT ART (ASSISTED REPRODUCTIVE TECHNOLOGY) BILL

A new bill is in the works to regulate the practice of surrogacy aiming to avoid some of
the pitfalls of the ICMR guidelines discussed above. In the previous chapter were
given extracts from the draft ART bill particularly concerning the surrogacy
arrangement, rights of the surrogate mother, the child, etc.
The bill empowers a National Advisory Board to act as the regulatory body laying
down policies and regulations. It also seeks to set up State Advisory Boards that are, in
addition to advising state governments, charged with monitoring the implementation of
the provisions of the Act, particularly with respect to the functioning of the ART clinics,
semen banks and research organizations.

The Artificial Reproductive Technology (Regulation) Bill defines surrogacy as an

arrangement in which a woman agrees to a pregnancy, achieved through assisted
reproductive technology, in which neither of the gametes belong to her or her husband,
with the intention of carrying it to term and handing over the child to the person or
persons for whom she is acting as surrogate; and a surrogate mother is a woman who
agrees to have an embryo generated from the sperm of a man who is not her husband,
and the oocyte for another woman implanted in her to carry the pregnancy to full term
and deliver the child to its biological parents(s).

By this definition, all surrogacy arrangements that involve the woman bearing a child
 using her own egg (oocyte) and the commissioning mans sperm are illegal. Also, by
this definition, fertile surrogate mothers will necessarily have to use technology meant
for treatment of infertility. Surrogates will now be forced to use only in-vitro
technologies even though they can get pregnant with methods like artificial
insemination which are much safer for them.

Further, in light of the Artificial Reproductive Technology (ART) practiced today, it

reflects that there is no standardization of the drugs used, no proper documentation of
the procedure, insufficient information for patients about the side-effects of the drugs
used, and no limit to the number of times a woman may be asked to go through the
procedure. They do not disclose the fact that a successful cycle need not lead to a
baby being born. Further, the clinics do not give exact information on the procedures
and their possible side-effects.

A noticeable trend is that the ART clinics are becoming the central hub of all surrogacy-
related activities. Some of the duties of the clinics involve selecting the surrogate
mothers the bill lays down conditions that the surrogate mothers have to meet and
obtaining relevant information, informing all parties involved about their rights and
obligations. The bill specifies what is and is not allowed regarding these topics. ART
clinics are also required to treat all the information they obtain with utmost
confidentiality. In practice this entails that ART clinics are not allowed to provide any
information about surrogate mothers or potential surrogate mothers to any person. This
creates a problem for intended parents since they have to turn to a middleman in order
to find a surrogate mother. This is rather controversial, not just because of the
involvement of agents, but also because it seems unfair that the intended parents, who
are about to make a significant investment, have little control over the selection
process. A better option could be to release personal information at the discretion of the
surrogate.
Since several parties with dissimilar interests are involved in the surrogacy
arrangement, controversy about someones role can arise. The bill draws clear lines to
avoid these problems:

The donors should relinquish parental rights at the time of donation, and the surrogate
mother, shortly after birth.
Traditional surrogacy is no longer allowed. The reason for this is that when the
surrogate is also the genetic mother the risk of legal complications increases.
NRIs and foreign couples are required to assign a local resident who is in charge of the
surrogates welfare until the act of relinquishment
 For the same group, it is also mandatory to be able to document their ability to take the
newborn back to their home country with them (in response to the Manji incident).
Interestingly, the bill allows unmarried couples and individuals to engage in surrogacy.
However, the bill states that conception by surrogacy is not allowed when the intended
parent(s) is able to conceive the natural way. Consequently, an issue arises when it
comes to individuals: women have to prove that they are not capable of bearing a child,
but on the other hand, men are not required to prove this.
The surrogate baby will be recognised as the legitimate child of the commissioning
couple even if they divorce or become separated, with the childs birth certificate
carrying both genetic parentsnames.
The surrogate mother may receive monetary compensation from the couple or
individual for agreeing to act as a surrogate mother.

Next, the Rules of the Bill assume that ART is being used only by heterosexual infertile
couples. So they specify indications for various techniques based on the nature of
infertility. The side effects are underplayed as ART procedures carry a small risk both
to the mother and offspring. Evidently, the risk is small in comparison to the pain and
trauma of infertility. In any case, the issue of fertile womens bodies for egg retrieval or
for surrogacy does not figure in the discussion on risk.

The ART Bill has provided for many informed consent forms to be filled and records to
be kept. But it does not require that adequate information be given to the surrogate
mother about the possible side-effects.

Registration of surrogates with a sperm bankfurther underlines the fact that the
surrogate is seen as just another component of the technology a womb. This ignores
the fact that while donated egg or zygote gets separated from the womans body, the
womb continues to stay inside her and thus has to be looked at differently.

Thus, a Bill that is meant to safeguard the provider and to commissioning couples does
not seem to protect the rights of the surrogate. She is the most marginalized and
vulnerable one in this triad.

Therefore, surrogacy is both a threat and an opportunity. On the one hand it gives
infertile couples and surrogate mothers the possibility to fulfill their desires: a child and
the opportunity to take better care of their family respectively. On the other hand there
is a risk that with the commodification of children and parenthood, women are
exploited and turned into baby producers. Several reasons for and against surrogacy
 have been given and one cannot easily decide what is morally right and what is wrong.
However, both opponents and supporters of surrogacy agree that surrogacy poses a
series of social, ethical and legal issues.

Although there are now some rules and regulations in place, not enough is done at a
national level to protect the interests of Indian women who serve as surrogate mothers,
the children they bear, or those intended parents who travel considerable distances to
commission pregnancies. These issues will be addressed in this study. The results will
unveil the situation the mothers, parents and children are in and as well as serving as a
basis for policy recommendations.

SALIENT FEATURES OF ART (REGULATIONS) BILL-2010:

The Draft Bill gave gays, singles the legal right to have surrogate babies. It defines a
couple as two persons living together and having a sexual relationship.

A woman in the age-group of 21-35 can become a surrogate mother. She will be
allowed five live births, including her own children. She will not be allowed to donate
octets more than six times in her life.

In case of a single man or woman, the baby will be his/her legitimate child.

A child born to an unmarried couple using a surrogate mother and with the consent of
both parties shall be the legitimate child of both of them.

During the gestation period, the couple will bear the surrogates expenses and give
monetary help to her. The couple may enter into an agreement with the surrogate.

Foreign couples must submit two certificates one on their countrys surrogacy policy
and the other stating that the child born to the surrogate mother will get their countrys
citizenship.

Foreign couples have to nominate a local guardian who will take care of the surrogate
during gestation.

ART banks, accredited by the government, will maintain a database of prospective

surrogates as well as storing semen and eggs and details of the donor.
 State boards will give accreditation to ART banks private and government. The
board will have a registration authority which, in turn, will maintain a list of all In-vitro
Fertilisation (IVF) centres and monitor their functioning.

CRITICAL ANALYSIS OF THE SURROGACY (REGULATION) BILL-2016

In India, Infertility is generally known as a social stigma. It is hypothesized that the

agony and trauma of infertility is best felt and described by the infertile couples
themselves.

Surrogacy is the union of science, society, services and person that make it a reality.
Surrogacy leads to a win-win situation for both the infertile couple and the surrogate
mother. The Assisted Reproductive Technology has helped millions of infertile couples
to have a child, who has their genetic links through surrogacy. Those couples who have
medical complications and pregnancy could result in threat to life of the mother;
surrogacy comes to their rescue, which is generally used as the last resort. It is now a
worldwide accepted reality that every person is unique and should be given the liberty
to live his/her life according to personal choices.

A natural corollary to the said statement is that single parents, same-sex couples or even
women who are pursuing high commitment careers could also make their parenthood
dream a reality through surrogacy. However, the Bill is highly discriminatory and
against the very tenets of equality, as it discriminates between married and unmarried
couples, between heterosexual and homosexual couples, between single parents and
double parents, between divorcee and non-divorcee, between foreigner couples and
Indian couples.

It is agreed that celebrities of the likes of Shahrukh Khan and Tushar Kapoor may be
etching a style statement by having a surrogate child. They could have very well
adopted a child if they felt that urge. In order to highlight that some of the directives
mentioned in the Bill are a bit out of context like, allowing a couple with a mentally or
physically challenged child to go for surrogacy may result in neglect of the first child
who actually needs more attention. Rather than safeguarding surrogacy through strict
and transparent mechanisms, government has introduced a Bill to ban surrogacy.

The surrogacy law can still be exploited by wrongfully using the close relative clause
for surrogacy. Besides, if surrogacy is banned, a black market will surely emerge where
middle-men would reap the financial benefits and women would lose both income and
 access to adequate prenatal care. Nonetheless, Surrogacy Bill will curb unethical
practices and protect and prevent the exploitation of surrogates by middle-men, but at
the same time will also hurt so many of them who were making a living out of it.
Estimates put the value of the practice in the country known as the surrogacy hub of
the world at $2 billion. This colossal amount of revenue and foreign exchange that was
coming into the state exchequer through surrogacy will now come to a nix.

CONCLUSION

The surrogate mothers generally are from poor families and their average monthly
income is not more than Rs.2,500-3,000.
Almost all of the interviewed surrogate mothers have already experienced child-birth
before and have two kids of their own. In such a way, this implies that these women are
capable of reproduction naturally and are made subjects of reproductive assistance
techniques and become surrogate mothers.
The majority of them are illiterate, employed as domestic helpers, construction workers
or nurses. Thus, they are economically vulnerable and desire for some money. Hence,
the need of money is the driving force for them to become surrogate mothers.

Most of the surrogate mothers are married and live in nuclear family structure, which
makes the surrogacy decision-making easier for the couple.

The majority of them spend the money for education of their children, building the
house or renovating the old one.
Most of them stay in rented houses, which are kutcha or semi-pucca with poor or no
latrine facilities. In some cases there was no roof over their houses due to which their
children suffered from fever in rainy season.

Sometimes though the husbands do not mind the woman to go for surrogacy but after
the baby is born and handed over and the woman comes back to her house, the husband
and her own children distance themselves from her.

Most of the times it is the agent who approaches the particular woman for surrogacy
to help her get in touch with the concerned clinic. These agents are often former
surrogate mothers who have delivered two surrogate babies in the same clinic.

The surrogacy contract is signed between the surrogate mother (including her
 husband), the commissioning parents and the fertility physicians. In such a way, the
clinic authorities evade legal hassles.

Almost none of the surrogate mothers have a copy of the written contract of
surrogacy arrangement, though they are part of thiscontract.

The surrogacy arrangement contract rarely addresses issues related primarily to the
well being and health of the surrogate mother. It is only the health issues related to the
fetus when the health of the surrogate mother becomes aprerogative.
In case the intended parents do not wish to continue with the pregnancy due to some
fetal abnormalities or sex preference, the baby is aborted often without any say of the
surrogate mother.
There is no fixed rule related to the amount of compensation for the surrogate
mother; it is arbitrarily decided upon by the clinics. Convention goes that the surrogate
mother is paid 1%-2% of the total amount received by the clinics from the
commissioning parents in lieu of the surrogate baby.
In most of the cases, relationship between the surrogate mother and the
commissioning parents remains as it was described harmonious, but from a distance. It
should be taken into account that language remains to be a barrier and the doctor is the
sole communicator between them. According to the surrogate mothers, the level of
involvement for the commissioning parents with the entire pregnancy experience of the
surrogate mother remains restricted to the initial stage of getting introduced to the
former and making sure that surrogate mother delivers and relinquishes the baby as it
was decided.
Most of the surrogate mothers stay in the shelter homes during the pregnancy period.
According to them, they do not want to disclose their pregnancy to the neighbours and
surroundings due to the social stigma associated with it. In addition, the clinics also
prefer them to stay in the homes instead of their respective villages in the interest of the
surrogate baby, as the homes are better equipped to take care of the pregnancy-related
issues and to prevent the surrogate mother from being infected with STDs or
HIV/AIDS due to physical contact with her husband.
Very often the surrogate mother remains apprehensive and fearful of the surrogacy
process before the pregnancy.
In most of the cases the decision to relinquish the baby after birth is jointly taken by
the commissioning parents and the clinic, whereas the surrogate mother does not seem
to have any right to interfere in the decision-making process.
 Few of the surrogate mothers faced difficulties from the family and surroundings
after the birth of the child due to surrogacy being considered a stigma. Many of them
also felt emotionally disturbed after handing over the child, though not biologically her
own, the surrogate mother still felt to be attached to the child.
The surrogate mothers assume that the child will positively accept the fact that s/he
has been born through surrogacy.
The surrogate mothers stated that relinquishing the baby was the worst part of
surrogacy. However, they added that the secrecy involve in this issue and the long and
painful period of labour when they have to live separately from their family members
were other worst parts in the surrogacy arrangement.
According to surrogate mothers the surrogacy arrangement distanced them from their
friends and family members.

COMMISIONING PARENTS

The Commissioning Parents, sometimes also called the intended parents, are the
couples, who are unable to have children naturally or with medical help and decide to
acquire a child through a surrogacy arrangement. The intended parents opting for
surrogacy can be Indians, Non-Resident Indians (NRIs) or Foreigners.

In India, surrogacy is increasingly becoming a popular and well-accepted practice

amongst childless couples; most of such Commissioning Parents hail from the creamy
layer of the society who can bear the huge cost of surrogacy. India is emerging as a
leader in international surrogacy and a destination in surrogacy-related fertility tourism.
Indian surrogates have been increasingly popular with fertile couples in industrialized
nations because of the relatively low cost. Indian clinics are also becoming more
competitive, not just in the pricing, but in the hiring and retention of Indian females as
surrogates. Clinics charge exorbitant amount for the complete package, including
fertilization, the surrogate's fee, and delivery of the baby at a hospital, including the
costs of flight tickets, medical procedures and hotels.

The field study conducted in three of the high-prevalence areas in the state of Gujarat
in Anand, Surat and Jamnagar, have helped CSR come up with extremely interesting
findings. The amount of data collected has been categorized by the extent to which the
clinics allowed the researcher to observe and the level of information the former
divulged. Thus, depending upon the aforementioned factors, CSR could collect
maximum data from Anand (30 respondents); Surat could provide us 18 respondents
and the least data was gathered from Jamnagar (2 respondents)
60. Barbara S. Parish, Test Tube on Trial: Let California Blaze the Trail to the
Legitimation of Surrogacy Available at: http://heinonline.org, Citation: 9 Glendale L.
Rev. 56 19 (visited on July 8, 2013).
61. Grayee P. Storey, Ethical Problems Surrounding Surrogate Motherhood
Available at: http://www.yale.edu/ynhti/curriculum/units (visited on June 5, 2010).
62. Genesis 16:2 So she said Abrahm, the Lord has kept me from having children.
Go, sleep with my slave; perhaps I can build a family through her.
63. Deuteronomy (5th book of Hebrew Bibles, chapter 25 verse 5).
64. Pratibha Ganesh Chavan, Psychological and Legal Aspects of Surrogate
Motherhood AIR 2008 Jour
67. Ashley Kate, History of Surrogate Motherhood Available at:
http://www.ezinearticles.com (visited on July 17, 2010)
76 In re Baby M., 217 N.J. Super. 313, 525 A.2d 1128 (1987).
77 In re Baby M., 109 N.J. 396, 537 A.2d 1227 (1988).
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