AN INTERNATIONAL, MORAL & LEGAL PERSPECTIVE: THE CALL

FOR LEGALIZATION OF SURROGACY IN INDIA

-RAGHAV SHARMA

I. INTRODUCTION

“Salus Populi Suprema Lex”

- The Welfare of the People is the Supreme Law-

Jeremy Bentham looked upon ‘law’ as an instrument for securing the “greatest
good of the greatest number” and correctly so. Law, at a particular time,
showcases the societal mindset and undergoes radical metamorphosis to align
itself with social change. The question of ‘when to’ employ this instrument for
addressing social issues is beset with many conceptual uncertainties. This article
seeks to address one such question with regard to the issue of surrogacy in India
and, in the process, analyzes its various dimensions in order to ascertain the
basis which makes it imperative for the legislature to pass a law to explicitly
address the issue. In its quest, the paper endorses the need for legalization of
surrogacy from the perspective of positive fundamental right of procreation
guaranteed under Article 21 of the Indian Constitution and the compelling state
interest in maintaining the ‘rule of law’. Part I is designed as a prefatory interface
to the concept of surrogacy. Part II exhaustively elucidates the international legal
perspective concerning legalization of surrogacy delineating the relevant judicial
and statutory responses adopted in U.S.A. and U.K. Surrogacy has engendered
a new debate about moral and ethical issues which have been detailed and
examined in Part III. Finally, Part IV delves into the issue of legalization of
surrogacy in India in light of the existing framework and the pertinent issues
highlighted in preceding sections.

Electronic copy available at: http://ssrn.com/abstract=997923

II. DEFINITIONAL UNDERPINNINGS
In recent times, the advent of new scientific reproductive technologies has
conjured up novel and seemingly intractable normative debates about bioethics
and contemporary values in the field of family law. Infertility of couples strips
them of their essential ‘right to procreate’ and have genetically related offspring.
A new promise has flowered for them with the advent of new reproductive
technologies like artificial insemination, donor egg transplantation, and
surrogacy. Surrogacy, incontrovertibly, is the most controversial of them all.
The literal meaning of ‘surrogate’ is ‘substitute’. Surrogacy arrangements are
motivated by a desire for a genetically related child and the disincentive arising
out of the prolix adoption procedures coupled with difficulty in finding suitable
child for adoption. A standard definition of ‘surrogacy’ is offered by the American
Law Reports1 in the following manner:

“…a contractual undertaking whereby the natural or surrogate

mother, for a fee, agrees to conceive a child through artificial
insemination with the sperm of the natural father, to bear and deliver
the child to the natural father, and to terminate all of her parental
rights subsequent to the child's birth.”

The essential elements are child-bearing by a surrogate mother, termination of

her parental rights after his birth and payment of money by the genetic parents. If
the money paid is merely to recompense the surrogate for the pain undertaken
by her and includes reimbursement of medical and other expenses, then it is
‘non-commercial’ surrogacy. In contrast thereto, ‘commercial’ surrogacy
involves payment of hefty sum of money as income to the surrogate for the
service offered by her and surrogacy is thereby looked upon as a business
opportunity.

1
American Law Reports, Validity and Construction of Surrogate Parenting Agreement, 77 A.L.R.
4th 70. (1989).

Electronic copy available at: http://ssrn.com/abstract=997923

According to another classification, surrogacy can be traditional, gestational
and donor surrogacy. Traditional surrogacy involves the artificial insemination of
the surrogate mother by using the sperm of the intended father. Gestational
surrogacy, on the other hand, involves the creation of an embryo in a Petri dish
and its implantation into the womb of the surrogate who carries it to the term.
Lastly, in donor surrogacy there is no genetic relationship between the child and
the intended parents as the surrogate is inseminated with the sperm, not of the
intended father, but of an outside donor.

III. INTERNATIONAL PERSPECTIVE

Surrogacy has turned into a baffling legal quagmire and the views on its
legalization have been highly divergent. As Indian courts are still to grapple with
the issues involved, an overview of the legal position in other jurisdictions is
indispensable.

(A) Judicial Response

The judicial response in United States is best illustrated by the cases of In re

Baby M2, a highly paternalistic response, and Johnson v. Calvert3, the libertarian
response. In Baby M’s case, the couple entered into an agreement with the
surrogate mother whereby she had to carry the child to term and surrender
custody of the child in return for $10,000 plus medical expenses. After the birth,
the surrogate mother rescinded the contract and refused to deliver the child due
to deep-seated attachment with the child. The New Jersey Supreme Court, at a
time when the State had no law relating to surrogacy, declared the surrogacy
agreements to be void and unenforceable. The Court refused to extend the
protection of ‘right to privacy’ and ‘right to procreation’ to such agreements
holding that the custody, care, companionship, and nurturing that follow birth are
not parts of the right to procreation. The agreement was found to be against
2
537 A.2d 1227 (February 03, 1988).
3
5 Cal. 4th 84 (May 20, 1993).

3
public policy as it disregarded the “best interest of the child” standard, made the
consent of the natural mother involuntary due to the money motivation and was
‘potentially demeaning to women’ in the court’s opinion.4 Lastly, the Court held it
to be violative of the public policy as the contract was involuntary due to the
irrevocable commitment of the mother before she knew the strength of her bond
with her child.
In contrast to this, Johnson v. Calvert broke a new ground as the Californian
Supreme Court extended constitutional protection to surrogacy contracts and
validated them on touchstone of public policy considerations. Ridden with
feminist overtones, the Court held that the surrogacy contracts involved free,
informed and rational choice by a woman to use her body. The ethical issues of
exploitation and commodification have to be decided by the legislature. The
Court struck a resounding note on ‘freedom to contract’ and economic
independence of the women declaring:

“The argument that a woman cannot knowingly and intelligently

agree to gestate and deliver a baby for intending parents carries
overtones of the reasoning that for centuries prevented women from
attaining equal economic rights and professional status under the
law. To resurrect this view is both to foreclose a personal and
economic choice on the part of the surrogate mother, and to deny
intending parents what may be their only means of procreating a
child of their own genetic stock.”

However, the Court declared that the right to procreation does not extend to a
surrogate mother as she is not exercising her own right to make procreative
choices; she is merely agreeing to provide a necessary service without any
expectation that she will raise the resulting child as her own. To determine the
natural mother the Court propounded the ‘intention test’ i.e. the surrogate would
not have given birth to the child but for the intention on the part of the genetic

4
See Doe v. Attorney General, 487 N.W.2d 484 (June 01, 1992).

4
mother and thus the surrogate mother only facilitated the act of procreation by
the genetic mother by giving her voluntary consent. The genetic parents are the
prime movers of the procreation process.5

Other judicial decisions seem to fall in line either with Baby M or with Johnson
and thus the judicial view on surrogacy can, comfortably, be characterized as
vacillant and uncrystallised.

(B) Statutory Responses

United States
Different states have responded through legislation to the question of legalization
of surrogacy. In Arizona, New York, North Dakota and Utah, the legislatures have
taken a blanket approach, deeming all surrogacy contracts to be void and
unenforceable. Kentucky, Louisiana, Nebraska, and Washington, on the other
hand, have taken a less restrictive approach, passing legislation that voids only
those surrogacy contracts that provide for compensation to the surrogate. In
contrast, Florida, New Hampshire, and Virginia have adopted the minority
approach by making them legal and enforceable but they prohibit commercial
surrogacy, with an exception of expenses incurred as a result of pregnancy and
childbirth. They also allow the surrogate an opportunity to rescind the contract.
Surrogacy legislation in New Hampshire requires judicial preauthorization of all
surrogacy contracts subject to three conditions viz. informed consent by parties,
completion of psychological counseling and evaluation, absence of
unconscionable terms in the contract and orientation towards best interests of
child.

United Kingdom
The Surrogacy Arrangements Act, 1985, declares initiation and involvement in
commercial surrogacy agreements to be a criminal offence. Further, the Human

5
Surrogacy Parenting Associates v. Commonwealth of Kentucky, 704 S.W.2d 209 (February 06,
1986).

5
Fertilisation and Embryology Act, 1990, makes surrogacy arrangement
unenforceable by or against any person making it. Under English Law, surrogacy
is legal if it involves payment only of expenses reasonably incurred by the
surrogate mother, which have to be determined by parties. The contract is not
binding on either of the parties. After six weeks of child birth the genetic parents
can apply for a Parental Order from the Court under Section 30 of Human
Fertilisation and Embryology Act, 1990, which gives them full and permanent
rights over the child and the surrogate relinquishes her right. Lastly, the transfer
can be through Parental Responsibility Agreements when the genetic father is
registered as father of the child.6

Canada
Canada has enacted the Assisted Human Reproduction Act, 2004, which
legalizes surrogacy arrangements not involving payment of money. Commercial
surrogacy, advertising and acting as intermediary for earning profits in such
agreements are banned.

IV. MORAL AND ETHICAL OVERTONES

The legal perspective on surrogacy has to be essentially coloured by moral and
ethical overtones on which the public policy considerations are grounded. Since
the courts need to grapple with such issues, it is important to delineate the major
ethical issues involved. The table below succinctly summarizes all such aspects.

OPPONENTS PROPONENTS

A. Commodification of Children

Surrogacy is a baby manufacturing and The child born is a unique human

selling activity whereby the surrogate being. The money paid to the surrogate
mother ‘leases’ her womb and mother who undertakes pain with

6
See <http://www.surrogacy.org.uk/Registering-birth.htm> (Last visited on July 7, 2007).

6
manufactures the child like a product altruistic motives is compensatory.
from the raw materials provided by the Parents do not disown their natural
genetic parents. In such case, the children even if they are handicapped.
parents may disown the child if he is
physically or mentally handicapped.7

B. Commodification of Women

Surrogacy and prostitution are Surrogacy is an exercise of

equivalent. They fear that, in a reproductive choice and ‘freedom to
patriarchal society, rich will exploit the contract’ by women.
poor women.
Secondly, surrogacy demeans the They opine that surrogacy promotes
mother-child relationship and turns women’s constitutional rights to privacy
women into “breeder machines”. and procreation and hence advocate
Lastly, surrogate’s consent is not well economic autonomy and independence
informed as she is forced to relinquish of women.
her rights even before the bond with
child grows.

C. Psychological Anguish to Child and Surrogate Mother

Surrogacy attaches commercial values Surrogacy is an act of altruism and

to social and moral meanings sympathy towards childless couples
associated with reproduction and and thus the surrogate can part with
fragments the social and moral bonds the child easily.
of kinship. Further, she has sufficient time for
Secondly, the knowledge of the means cogitating over her consent and can

7
See Malahoff v. Stiver, 975 F.2d 192 (6th Cir.,1988) , wherein a child born pursuant to a
surrogacy arrangement and having hearing loss, mental retardation, and neuro-muscular
disorders, was rejected by all the parties to the surrogacy contract.

7
of their birth will make such children withdraw it if she feels attached to the
psychologically disturbed. child.
Lastly, as the genesis of parenthood is
in interaction with child and not in
genetic relationship, it is difficult for the
surrogate to part with the child.
D. Best Interest of Child

Surrogacy agreement predetermines Judicial determination of best interests

the best interests of the child by of child after the birth will frustrate the
deciding the custody issue. Public contract and deprive the infertile couple
morality, as reflected in adoption of the services. The relationship with
statutes, should guide surrogacy genetic parents should be the
transactions as opposed to sole paramount index for determination of
reliance on contractual terms. best interests of the child due to the
historical importance of biological
relationships for the development of the
child.

Thus, the greatest attack against surrogacy is that "creating a child without
desiring it fundamentally changes the way we look at children--instead of viewing
them as unique individual personalities to be desired in their own right, we may
come to view them as commodities or items of manufacture to be desired
because of their utility"8 leading to the danger of rejection of handicapped
children. However, the proponents are strongly premised on the freedom and

8
Herbert T. Krimmel, Surrogate Mother Arrangements From the Perspective of the Child, 9
Logos 97 (1988).

8
economic autonomy of women9 and the following resounding note is pertinent to
be quoted in this regard:

“Woman as conscious, moral, social and political being is also

woman as economic being. We cannot separate ourselves from our
economic existence or ignore the value of our reproductive powers.
The failure to acknowledge the economic value of female
reproductive labor is blind folly for those who wish for equity in
women's social situation.”10

As both stances on these ethical dilemmas are vulnerable to fallibility due to

equally convincing counter arguments, law needs to strike a delicate balance, not
attempting to take sides on the moral battlefront, but by devising a framework in
light of various interests involved.

V. LEGALIZATION OF SURROGACY IN INDIA

Jurisprudentially, Roscoe Pound has expressed the need for a law in terms of
claims or wants or desires which men assert de facto and about which the law
must do something if organized societies are to endure.11 As balancing an
individual interest against a social interest is a fallacious pre-judgment in the
latter’s favour, Pound recognized the need to weigh interests on the same plane
by translation of individual interest into larger social interest of the same kind
relating to the social group to which individual belongs and then assess the need
for a law to protect and facilitate such interests. The ‘claim assertion’ stage
concerning surrogacy has surfaced in Indian society with numerous instances of
such arrangements coming to light recently. In Kolkata, litigation for legal custody

9
See Richard A. Posner, The Ethics and Economics of Enforcing Contracts of Surrogate
Motherhood, 5 J. Contemp. Health L. & Pol'y 21 (1989).
10
Christine L. Kerian , Surrogacy: A Last Resort Alternative for Infertile Women or a
Commodification of Women’s Bodies and Children, 12 Wis. Women's L.J. 113 ( 1997).
11
Roscoe Pound, Jurisprudence (Law Book Exchange Ltd., New Jersey, vol. III, 1959) p.15.

9
of the first child born through surrogacy agreement has already commenced.12
As costs of medical treatment are low in India, it is proving to be an attractive hub
for foreigners to procure benefits of medical tourism; especially surrogacy.13
Commercial surrogacy is emerging and doctors and surrogate mothers are
engaging into profiteering as evident from numerous newspapers accounts of
surrogate women citing money as the main reason for engaging in such
arrangements. Women are being compelled by their in-laws to engage in this
emerging “business” and the not-so distant dreams of a high standard of living,
luxuries and a secure future for their children are driving women to make money
through surrogacy.14 The status-conscious lower middle class is resorting to
surrogacy for fulfilling its material and financial needs.
The issue of surrogacy is afflicted with numerous moral and ethical questions
which have been amplified by such open use of commercial surrogacy. Is it
morally right for a woman to offer herself for a fee, procreate and then sell the
child? Is it correct to use surrogacy for household needs by married women? Will
not such practices amplify the malady of dowry system whereby a woman is
reduced to a mere economic resource by greedy in-laws? Surrogacy, if not
regulated, will prove to be an avenue of exploitation and subjugation of women.
To crown this, clinching evidence of disturbing trends amongst fertile and young
career oriented married women has emerged whereby they are increasingly
resorting to surrogacy for avoiding interruptions in their careers on account of
motherhood.15 A redefinition of motherhood is being attempted which may prove
to be disastrous for the psychological health of the children born out of such
agreements. The emerging trends spell disaster for family as the fundamental

12
IVF Son for a Single Father, BBC News, 4th October, 2005, Available at <http://news.bbc.co.uk/
2/hi/south_asia /4309332.stm> (Last visited on July 7, 2007).
13
Medical Tourism Booms in India, Economic Times, February 7, 2006.
14
Wanna Rent a Womb, Come to Anand, Times of India, February 11, 2006; See also Surrogate
Mothers Lined Up in Gujarat, The Hindu, March 2, 2006; Outsourcing a Womb, Hindu Business
Line, April 6, 2007.
15
Trevor Allis, The Moral Implications of Motherhood by Hire, Indian Journal of Medical Ethics,
Jan-Mar1997-5(1).

10
unit of society. Surrogacy is not per se a vicious practice and hence it is required
to limit its use to only those who are infertile and have well established
constitutional right to access such technology and prevent it from being misused.
Hindu personal law offers a unique perspective for surrogacy. Hindu mythology
offers an instance of surrogacy in Bhagvata Purana where the embryo from
Devaki’s womb was transferred to Yogmaya’s womb who finally delivered the
child. This instance dispels, to an extent, the religious objections to the
conception of non-commercial surrogacy arrangements. Having children to
maintain the continuity of the family unit has always been important in Hindu
culture and thus infertility is a social stigma even today. Every Hindu is enjoined
to have his own natural son (aurasa) for discharging his spiritual debts towards
his ancestors and continuation of his family bloodline. A gestational surrogacy
arrangement offers a unique solution to the problem of infertility in Hindu couples
and allows them to have a child who is genetically theirs and can relieve them of
their religious debts. Thus, the need for a wholesome ‘legislation’ to regulate
surrogacy is evident.
Having demonstrated the factual social claim basis for a law, it is essential to
define the policy choice of such law by looking at surrogacy through the lens of
individual rights and existing state of Indian law and thus to enumerate the basic
techniques of its implementation.

(A) Policy Choice: Commercialize Surrogacy?

The foremost question is: what form of surrogacy should be adopted? The
most appropriate policy choice is non-commercial surrogacy as its kin
commercial surrogacy which converts surrogacy into a business activity
seemingly falls foul of Article 23 of the Constitution of India16 and Section 23 of

16
Article 23- Traffic in human beings and begar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in accordance
with law.

11
the Indian Contract Act, 187217. Article 23 prohibits trafficking in human beings
while Section 23 makes agreements contrary to public policy unenforceable
embracing within its fold such contracts which are likely to deprave, corrupt or
injure the public morality.18 The word ‘traffic’ connotes an element of trade i.e.
buying and selling and commercial surrogacy being equivalent to baby selling
certainly involves traffic in children.19 In contrast, non-commercial surrogacy
agreements, providing only for ‘compensation’ equivalent to reasonable
expenses incurred by the surrogate mother, pass the touchstone of public policy
considerations under section 23. Firstly, they do not involve traffic in children.
The general public policy considerations are reflected in Section 9(5) and Section
17 of Hindu Adoptions and Maintenance Act, 1956 (HAMA) which prohibit give
and take of money in consideration for adoption of a child. In non-commercial
surrogacy, the focus is on providing the infertile couple with custody of the child.
The issue of adoption comes only after the child is born and the payment is made
in compensation to the pain and the reasonable medical expenses incurred. In
Re Adoption Application (Payment for Adoption)20 the court validated such
arrangement on touchstone of adoption statute in U.K. containing a clause
similar to Section 17 of HAMA, 1956. Secondly, abstract arguments about
commodification of children, break-up of kinship ties and the psychological
damage to children cannot be the basis for curtailing the right of procreation.
Positive evidence and factual data based on empirical studies is needed to be
put in by the opponents for establishing legitimate public policy considerations in

17
Section 23- The consideration or object of an agreement is lawful, unless- the Court regards it
as immoral, or opposed to public policy.
18
State of Rajasthan v. Basant Nahata AIR 2005 SC 3401.
19
In Re Baby M, 537 A.2d 1227 (February 3, 1988); In Re Adoption of Paul, 550 N.Y.S.2d 815
(December 21, 1989); Doe v. Attorney General, 487 N.W.2d 484 (June 01, 1992).
20
[1987] 3 W.L.R. 31.

12
prohibition. A pertinent observation of the Ontario Law Reform Commission
needs to be noted21:

"….in principle, prohibitory action is warranted only where there is an

extremely powerful justification; the onus should be on those who would
advocate such action, not on those whose conduct is to be the subject of
legislative or other interference."

Lastly, proper safeguards for ensuring the best interests of the child and
preventing exploitation can be grafted in the scheme of legislation as pointed out
in the later section of the paper. An apposite analogy with transplantation of
human organs may well elucidate the difference between commercial and non-
commercial surrogacy. Its legalization is dependant on the ‘end’ which is to be
served. Section 11 of the Transplantation of Human Organs Act, 1994 allows
donation of organs only for therapeutic uses. On a parity of reasoning, surrogacy
when done for profit cannot be permitted but when done for the sole altruistic
motive of helping the infertile couples, it gets underlined with moral overtones
and merits legalization.

(B) Is there a positive right to enter into surrogacy contracts?

The ambit of right to life is wider than mere ‘animal existence’ and goes on to
include all aspects of life which make it worth living. Procreative liberty and right
to reproduction have been recognized as a part of right to life22 specifically under
Article 21 of the Constitution.23 As opposed to the negative right of freedom from
State interference, Article 21 has a ‘positive’ content encompassing the quality of

21
Ontario Law Reform Commission, Report on Human Artificial Reproduction and Related
Matters, p.1 (1985).
22
Skinner v. Oklahoma,316 U.S. 535 (1942).
23
S.Amudha v. Chairman, Neyveli Lignite Corporation, (1991) IILLJ 234 Mad; B.K. Parathasarthi
v. Government of A.P., 2000(1) ALD199.

13
life and ‘the right to carry on such functions and activities as constitute the bare
minimum expression of the human self.’24 The strongest negative claim of
infertile people would be the right to remain childless, without forced medical
treatment or even pressure to seek treatment in the form of social ostracism or
ridicule. But if the natural process of family life and reproductive activity does not
result in pregnancy, the claim regarding assisted reproduction through third part
intervention necessarily becomes positive obligating the State to ensure
facilitation of this right through legislation. Though the State has no obligation to
fund or provide facilities to the willing couples, it does have an obligation to make
the legal obligations certain and protect weaker parties against exploitation.
This ‘positive right’ can also be characterized as “freedom to” i.e. the opportunity
to choose between alternatives or among a range of alternatives. The effective
realization of such freedom is premised on three basic pre-requisites25: (1)
absence of nullifying restraints, (2) presence of some appropriate form of order
that will carry the effects of the individual decision over into the processes of
society and, (3) a congenial environment of rules and decisions. A ‘positive right’
corresponds to a ‘positive duty’, and is a right that he on whom the duty lies shall
do some positive act on behalf of the person entitled. If some defect in man's
condition could easily be remedied by a wave of the ‘legislative wand’ then the
failure to take the step, that seems so obvious to him, will be deliberate
imposition of a restraint and therefore a denial of freedom.26

Due to gaping inadequacy of the present rules coupled with a total absence of
specialized and ‘congenial’ legal rules for determining the issues of validity,
custody etc. relating to surrogacy contracts, the Indian legal system falls short of
Fuller’s last two conditions mandating the State to establish proper and
intelligible legal rules. Moreover, the non-recognition of legality of surrogacy will
24
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; C.E.R.C. v.
Union of India, AIR 1995 SC 922; Kapila Hingorani v. State of Bihar (2003) 6 SCC 1; Mohini Jain
v. State of Karnataka AIR 1992 SC 1858.
25
Lon L. Fuller, Freedom- A Suggested Analysis, 68 Harv. L. Rev. 1305 (1955).
26
Ibid.

14
deny the intended parents from enforcing their rights through appropriate judicial
forums. A law will give express recognition to the right of the infertile couples,
prevent misuse of the process and facilitate litigation which is an essential
compelling state interest. The existing framework of law, though designed for
public convenience, has failed to do so in light of new developments. Prohibition,
either through a law or through judicial decisions declaring such contracts against
public policy considerations, will do no good; rather moderation within confines of
well-defined legal rules that balances the basic rights and interests of the infertile
couples will be an evenhanded solution. Lon Fuller explains the above obtained
situation in a simplistic perspective through the following example which needs
quotation:

Through the foresight of the city fathers the Cambridge Common is

provided with an elaborate network of paved sidewalks, carefully planned
to serve the convenience of any person wishing to traverse the Common
from any angle. It was found, however, that at certain points people
perversely insisted on walking across the grass. The usual
countermeasures were tried, but failed. Now the city is taking down its
barriers and its "keep-off-the-grass" signs and is busily engaged in paving
the paths cut by trespassing feet.

Presence of a regulative framework of law will eliminate this visualized

uncertainty in cases of custody of child and forestall exploitation. As a positive
right to procure surrogacy contracts exists for infertile couples, it is clear that
state paternalism has no legitimate role in such moral choices of individuals
concerning their fundamental rights but to enforce them.

(C) Legalizing Surrogacy: Maintaining Rule of Law?

The compelling and legitimate state interest of maintenance of ‘Rule of Law’ also
calls for legal regulation of surrogacy. A system governed by ‘rule of law’ requires
two essential elements viz. existence of law to govern human conduct and

15
clarity of laws.27 In absence of any law to regulate the affairs, the fate of the
non-commercial surrogacy arrangements will remain uncertain, though they are
not opposed to public policy. The pricking issue of determination of legal
parentage will entail uncertainty in judicial determination of such disputes. The
courts would be left with the difficult choice involving three equally tenable views
viz. contract principles which privilege the genetic mother as the intended mother
or biological principle stressing importance of consanguinal ties through common
law or the best interests of the child irrespective of the genetic ties. The U.S.
legal system has been afflicted with this uncertainty of law as courts are
grappling with different imponderables to determine parentage. Absence of a law
clearly defining parentage issues would leave the rights of parties to be judged
according to the notions of morality of individual judges instead of a common
public policy standards formulated in legislation. The issue of legal parentage
assumes importance because the inclusion of child in a family depends on the
rights of the parents and hence state’s interest of preservation of family ties is
involved. Finally, lack of settled legal rules will lead to resolution of litigations on
indefinite principles causing territorial non-uniformity of law. The Indian
government has to guard the economic interest of its booming medical tourism
sector too- a legitimate state interest being involved therein.

(D) Technique of Implementation: Defining Broad Contours

Having made the policy choice in favour of non-commercial surrogacy

arrangements and established their validity on contractual and constitutional
premises, it is necessary to evolve a mechanism for implementation of the
concept. Taking a considered view, the suggested scheme for implementation
should be premised on the following essential principles:

ƒ Judicial Pre-authorization of all surrogacy agreements to reduce the

chances of exploitation through unfair, burdensome and unconscionable

27
Lon L. Fuller , The Morality of Law ( Universal Law Publishing House, New Delhi, 3rd edn.,
2004) p.46, 63.

16
 contractual terms, to ensure protection of best interests of the child and
interests of surrogate mother through judicially approved compensation.
Family Courts in India can very well supervise such contracts.
ƒ Mandatory psychological counseling of the surrogate mother should
be resorted to in order to make her consent free, informed and voluntary.
She should be given time to reflect on the pros and cons of the action
before proceeding to avoid later psychological tribulations.
ƒ Allowing reasonable time period for revoking of consent to the
surrogate mother after the birth of the child. This will be a welcome
recognition of the value of a child as a unique human being and the value
of the sacred bond between a mother and a child. It will also mitigate the
psychological impact on the surrogate mother.
ƒ Permanent termination of surrogate’s parental rights after the given
period is over to give certainty to the parental rights over the child and
avoid unnecessary litigation which may embroil the child’s future in
uncertainty.
ƒ Giving finality to child custody issue as prolonged litigation over the
child will prejudice his psychological well being and his future interests.

A striking point to be noted in this regard is that an agreement to give or take a

child is per se not opposed to public policy and specific performance of such an
agreement is judicially permissible.28 The same analogy applies for adoption of a
child born through surrogacy arrangement as such arrangement consists of two
parts viz. conception of child and handing over custody of child; thus making it
enforceable.

VI. CONCLUSION

Surrogacy involves conflict of various interests and would have inscrutable

impact on the primary unit of society viz. family. Non-intervention of law in this
knotty issue will be a regressive step at a time when law is to act as ardent
28
Sree Narain Mitter v. Sreemuttty Krishen (1872) IA Supp 149 (PC).

17
defender of human liberty and an instrument of distribution of positive
entitlements. Prohibition or non-intervention on vague moral grounds without a
proper assessment of social ends and purposes which surrogacy can serve
would be irrational. On the other hand, active legislative intervention is required
to facilitate correct uses of the new technology. It is high time that the Indian
Legislature grapples with the issues arising out of use of new reproductive
technologies and relinquishes the cocooned approach to legalization of
surrogacy adopted hitherto.

18