1625, 1665 PIL - Transnational Surrogacy and Induced Statelessness Old Project

TRANSNATIONAL SURROGACY AND INDUCED
STATELESSNESS: INDIAN AND GLOBAL PERSPECTIVE
Project Submission towards the completion of Mid Term Examinations for the academic session
(August – December 2020)
Submitted By Submitted To
Disha Lohiya – 1665 Mr. Shashank Shekhar
Naman Jain – 1625 Faculty of Law
V Semester Public International Law

~TRANSNATIONAL SURROGACY AND INDUCED STATELESSNESS: INDIAN AND GLOBAL PERSPECTIVE~
TABLE OF CONTENTS
Introduction......................................................................................................................................1
1. Ordinary Legal Issues...........................................................................................................1
2. Contractual Surrogacy..........................................................................................................2
2.1) Commodification of a Women’s reproductivity...........................................................3
2.2) Are Children a commodity?..........................................................................................5
2.3) Are Surrogacy Contracts Enforceable?.........................................................................7
2.4) Surrogacy Contracts are against Public Policy............................................................12
2.5) Surrogacy Contracts are Legal and enforceable..........................................................15
Legitimacy of Child born in Surrogacy.........................................................................................18
Conflict of Nationality and Citizenship.........................................................................................21
Conflict of custody of child...........................................................................................................23
Human Rights Issues and Surrogacy Arrangements.....................................................................27
1. Human Right of the Surrogates..........................................................................................28
2. Human Rights of Child.......................................................................................................29
Issues of Surrogacy in India..........................................................................................................31
1. Exploitation of Surrogate Women......................................................................................33
2. Citizenship of child in Indian Perspective..........................................................................35
Conclusion.....................................................................................................................................38
TRANSNATIONAL SURROGACY AND INDUCED

STATELESSNESS: INDIAN AND GLOBAL PERSPECTIVE
INTRODUCTION
“Surrogacy arrangements are a complex phenomenon. At one hand in simple form it is

concerned with the medical assistance to those who are unable to procreate due to any reason. In
other hand, in contrast to this, it give genesis to the various legal issues which are not only
complex to determine but also interference in the settled laws, believes and perceptions of the
society. These issues are detrimental to the interests of those who involved in such arrangements
such as surrogates, intended parents and the child born out of that arrangements. In this Article
an attempt has been made by the researcher to find out almost all legal issues arises in the
surrogacy arrangement with intention to suggest the possible measures to remove these legal
barriers and inconvenience which intended parents, surrogate mothers and even an infant child
suffers immediately after his/ her birth.”1
1. ORDINARY LEGAL ISSUES
“Surrogacy arrangements are subject to controversial debate as they pose challenge to the family
law, it alters the natural process of female reproduction. At one hand as it is only, accessible and
suitable method for the infertile couples (both medical and social) and is boon for infertile
couples, on the other hand, it gives birth to serious legal controversies about the parenthood,
custody of child, enforceability of surrogacy contracts, its commercial use, safety and well-being
of children born out of such arrangements.1 These conflicts have at times erupted in to fierce
debate over the legality of surrogacy. Since, the controversy over the legality of surrogacy has
been brought to limelight by the leading surrogacy cases all over the world as well as arguments
made by legal scholars and commentators, such a discussion is important in determining how
surrogacy should be dealt with by legal systems in different countries.2”2
1
Elizabeth S. Scott, Surrogacy and the Politics of Commodification, LAW & CONTEMP. PROBS.
72, p. 109, 146 (2009).
2
Dr Anees V Pillai, surrogate motherhood and the law , National and International Perspective,
Regal publications, new Delhi 2015 p213-214
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“The major legal objections to the surrogacy arrangements are the enforceability of surrogacy
contacts, status of children born out through surrogacy, determination of parenthood and the
violation of Human Rights of surrogate Women (Exploitation of women body) and child born
out of such arrangements.3”3
2. CONTRACTUAL SURROGACY
“Surrogacy is a process by which the intended parents take the help of surrogate women for
begetting the child and the surrogate agrees to carry the child for full term and also relinquish her
parental rights over the child after birth and hand it over to the intended parents. Generally, these
arrangements involves a contract between the surrogate mother and the intended parents.
Intended parents who wish to beget the child must first find the female who is voluntarily ready
to be a surrogate and if they get such women they enter in to a contract. Such contract may be a
formal, written document or mere understanding between the intended parents and the surrogate
for the payment of money to the surrogate for her services. 4 A surrogacy contract involving
payment to the surrogate is considered as ‘commercial surrogacy contract’, while a surrogacy
contract in which no monetary compensation is given to the surrogate for her services is
considered as an ‘altruistic surrogacy contract’. These surrogacy contracts are very important to
determine the right and liabilities of the parties involved in the contracts. Surrogate motherhood
agreement usually defines the rights and duties of the intended parents and surrogate mother. The
Contracts may be long and detailed or may be very short and simple.”4
“These Contracts usually provides that surrogate mother would be artificially inseminated in
order to carry the resulting foetus to term, and then relinquish her parental rights to the intended
parents. Many such contracts also require the surrogate to undergo physical and psychological
testing before the artificial insemination takes place. Furthermore, contracts may require the
surrogate to refrain from the use of alcohol, drugs or tobacco during pregnancy. In addition,
some contracts may require an amniocentesis test; if this reveals some defect in the pregnancy,
the natural father and adopting mother may have the contractual right to demand an abortion.
Many contracts forbid the surrogate mother from aborting the foetus unless necessary for the
3
Stephen G. York, A contractual analysis of surrogate motherhood and a proposed solution, 24
LOYOLA OF LOS ANGLES LAW REVIEW , 395, 399-400 (Jan 1991).
4
Stephen G. York, A contractual analysis of surrogate motherhood and a proposed solution, 24
LOYOLA OF LOS ANGLES LAW REVIEW, 395 (Jan 1991).
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surrogate's physical well-being. Finally, some surrogate contracts may require paternity testing
after the child is born.5”5
“In exchange for these services, the adoptive parents agree to pay all medical and health-related
expenses associated with the surrogate's pregnancy. Contracts may also provide that the adoptive
parents pay for the living expenses of the surrogate during the period of pregnancy. 6
Furthermore, the adoptive parents may often pay travelling expenses and insurance premiums
connected with the pregnancy. Contracts usually indicate the amount and payment terms of the
fee paid to the surrogate in consideration for her services.”6
2.1) Commodification of a Women’s reproductivity
“Surrogacy objectifies and subordinates the welfare of both the child and
surrogate mother”
---Mathew Tieu7
“From last two decades, the practice of commercial surrogate motherhood has gained notoriety
as a method for acquiring children. A commercial surrogate mother is anyone who is paid money
to bear a child for other people and terminate her parental rights, so that the other may raise the
child as exclusively their own. The growth of commercial surrogacy has raised with new urgency
a class of concern regarding the proper scope of market. The major objection to the surrogacy is
that it commodifies the reproductive capacities of women and commodifies the children. The
Prospect of reducing children to consumer durables and women to baby factories surely inspires
revulsion. As Anderson claims that Commercial surrogacy raised new ethical issue, since it
represents an invasion of market in to new sphere of conduct, that of specifically women’s
5
Rakhi Ruparelia, Giving away the ‘gift of life’: Surrogacy and the Canadian Assisted Human
Reproduction Act, CANADIAN JOURNAL OF FAMILY LAW , 23, p.26 (2007).
6
Id.
7
Mathew Tieu, Oh Baby Baby: The problem of Surrogacy, BIO ETHICS RESEARCH NOTE 19, p.2
(March 2007), available at http://www.bioethics.org.au/Resources/Online%20Articles/Opinion
%20Pieces/1901%20Oh%20Baby%20Baby%20The%20Problem%20with%20Surrogacy
%20MT.pdf visited on 13/1/2016.
3|Page
labour, that is, the labour to term in carrying children to term in pregnancy. When women labour
treated as commodity, the women who perform it degraded.8”8
“The fact that Surrogacy arrangements commodifies the reproductive capacities of women is
based on the argument that when resources are allowed to exchange through contract, it requires
that the resources be commodified.”9
“The objection of commodification of women’s reproductive capacity is not as simple as it can
be accepted only by saying it is objectionable but it has to be clearly supported by those
circumstances and specifications in which these arrangements treat children and women as
commodities and secondly, explanation why such treatment is objectionable.”10
“When it is said that surrogacy contracts are in general, vehicles for expressing the autonomy
and personal perspective of the parties to it.9 Pregnancy contracts are no different from any
contract in opening up some opportunities by foreclosing others. 10 Therefore, as long as the
pregnancy contract is voluntarily accepted by the mother, it is no violation of her autonomy or
dignity to enforce it. Rather, it would be a violation of her autonomy and personhood an
objectionable form of paternalism to prevent her from entering such a contract.11”11
“Secondly, there is nothing inherent in treating a woman as an incubator for a child that
precludes also treating her with respect. Therefore, if a given mother is disrespectfully treated by
the other parties to a pregnancy contract, this is a problem with the particular people who treat
her that way, not a problem inherent in the surrogacy arrangement. This is also wrong because
this is like saying, there is nothing inherent in a slave contract that violates the dignity and
autonomy of the slave.12 After all, many slave owners treat their slaves decently and permit them
a wide range of freedoms. Therefore, if a given slave is disrespectfully treated by the slave
8
Elizabeth S. Anderson, Is women Labor is commodity, PHILOSOPHY AND PUBLIC AFFAIRS, Vol
19 No.1 (1990).
9
Id.
10
Id.
11
McLachlan, M.V and Swales. J.K., Babies Child Bearers and commodification, HEALTH CARE
ANALYSIS (2000), available at http://link.springer.com/article/10.1023/A:1009494710517#page-
1, visited on 12/2/2016.
12
Elizabeth S. Anderson, Why Commercial surrogate motherhood unethically commodifies
women and children: Reply to Machalen and Swales, HEALTH CARE ANALYSIS 8, p. 19–26,
2000, available at http://www-personal.umich.edu/~eandersn/surrreply.pdf visited on 12/2/2016.
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owner, this is a problem with the character of the slave owner, not a problem inherent in the
slave contract.13”13
“This argument is flawed, because slave contracts give slave owners a license to disrespect their
slaves, and an incentive to do so. Even if slave owners did not act on their incentive, the mere
license to abuse the slave is enough to render the slave contract an objectionable form of
commodification, because it treats the slave’s inalienable rights as alienable.14”14
“Further Pregnancy contract treats mother’s inalienable right to love her child and to express that
love by assertive claim to custody in its own best interests, as if it were alienable in a market
transaction. One might wonder how it could be a violation of her autonomy, given that her right
to care for her child is grounded in her own interests but in her obligation to her child.15”15
2.2) Are Children a commodity?

“The commercial surrogacy arrangements is degrading to the child who is to be an
outcome of it since for all practical purposes, child will have brought for money”16
“The other important objection to the legality of surrogacy contract is that commercial surrogacy
is baby selling. The objection is based on the fact that most of the surrogacy contracts
(Commercial surrogacy) involve payment of a substantial sum of money to the surrogate mother,
in addition to her medical and perhaps living expenses during the pregnancy. It is argued that
such payment is same as the consideration of the contract, and the intended parents are
purchasing the child from the surrogate mother. From the beginning, there are different
approaches about the commodification of resulting child through commercial surrogacy
arrangements. It was first said in the Waller Report of Victoria that commercial surrogacy
arrangements are the agreements of the sale and purchase of the child, the buying and selling of
the children has been condemned and proscribed for generations. It should not allowed to
13
Id.
14
Julia Tao Lai Po Wah, Right Making and Wrong Making in Surrogate Motherhood , A
Confucian Feminist Perspective, LINKING VISIONS: FEMINIST BIOETHICS, HUMAN RIGHTS AND
DEVELOPING WORLD, p 158-159 (Oxford 2004).
15
Id.
16
Report of the committee of inquiry in to human fertilization and embryology (1984), The
Warnock Report ,available at
http://www.hfea.gov.uk/docs/Warnock_Report_of_the_Committee_of_Inquiry_into_Human_Fer
tilisation_and_Embryology_1984.pdf, visited on 8/3/2016.
5|Page
reappear.17 In Germany surrogacy continues to be treated both judicially and by statute as a form
of illegal adoption that violates child’s and mother’s human dignity and reduces both to the
objects of commercial contracts.18 In Australia, legislation exist in all states and the Australian
Capital Territory, prohibiting commercial surrogacy based upon the ‘a deep discomfort with the
commodification of children, women and reproductive service (among other things).19 Hence, the
definition of “goods” is not satisfied because not only is the child non-existent, but also the
surrogate mother has no parental rights to the child. Now the question arises that if the child is
not existent at the time of the contract, can surrogacy contract be treated as contract to sell future
goods, one must have a right to the future goods at the time of the contract. However, the
gestational surrogate never, has any rights to the child, she carries. Thus, child is neither an
existing good nor a future goods and thus fails to meet the definition of goods.20”20
“Another way to see how children are commodified in the process is to see how the status of the
child differs in the two legal regimes. Where the pregnancy contract is null and void, the child is
the preeminent party in the custody dispute, where interest govern the allocation of parental and
custodial rights. Where the pregnancy contract is valid, the child is not a party to the suit over the
breach of contract. It is merely the object over which possession is disputed. If the pregnancy
contract is enforceable, then the custody of the child is awarded according to its terms, without
an independent inquiry in to the child’s best interests.21”21
17
Paula Gerber and Katie o’ Byrne, Surrogacy Law and The Human Rights, ASGHATE
PUBLISHING LTD., p.116 (Aug 2015).
18
COMMITTEE OF INQUIRY INTO HUMAN FERTILISATION AND EMBRYOLOGY, The Report of the
Committee of Inquiry into Human Fertilisation and Embryology (1984),
available at
http://www.hfea.gov.uk/docs/Warnock_Report_of_the_Committee_of_Inquiry_into_Human_Fer
tilisation_and_Embryology_1984.pdf, visited on 8/3/2016.
19
KATERINA TRIMMINGS AND PAUL BEAUMONT, INTERNATIONAL SURROGACY ARRANGEMENTS,
LEGAL REGULATIONS AT INTERNATIONAL LEVEL,131-132 (Hart Publishing, 2013).
20
VICTORIA. COMMITTEE TO CONSIDER THE SOCIAL, ETHICAL, AND LEGAL ISSUES ARISING
FROM IN VITRO FERTILIZATION, Report on the disposition of embryos produced by in virto
fertilization, p. 53 (August 1984), available at
http://www.parliament.vic.gov.au/papers/govpub/VPARL1982-85No168.pdf visited on
25\02\2015.
21
Denise E. Lascarides, A plea for enforceability of gestational surrogacy contracts, HOFSTRA
LAW REVIEW, Vol 24 Issue 4, p. 1240 (1997).
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2.3) Are Surrogacy Contracts Enforceable?

“Contract law should not apply or should apply differently when a transaction
involves conceiving, delivering and surrendering a baby than when it involves
barter of commercial services, or a chattel or a piece of land.”
---Martha A field22
“One of the most controversial issue regarding surrogacy arrangements is enforceability of
surrogacy contract.23 One view is that if surrogacy contracts are made enforceable (as in most of
the countries do), it would lead to potential exploitation of the surrogate, commodifies the
women reproductive capacity and children and promotes positive eugenics. Other view is that if
surrogacy contracts are made unenforceable, it would undermine the women’s ability to contract
freely for the use of body. The legality of surrogacy contracts was in question in different cases
all over the world. In Baby M case the legality of surrogacy contract was in question. 24 For
example, some countries prohibits surrogacy arrangements and surrogacy arrangements are
illegal such as France and Germany, Sweden, Spain, Italy, Hungry. Some Countries permit
surrogacy and regulate the surrogacy arrangements through law such Britain, United States,
Israel, Australia, Russia, South Africa, Canada, Hong Kong etc. Some other countries neither
prohibit nor permit the surrogacy arrangements.25”25
“To discuss the effect of enforceability of the surrogacy contract, it is required to understand that
surrogacy contracts are unique in nature. This is because that in surrogacy contract surrogate
mother develop a special bond with their child during pregnancy, a bond which surrogate
mothers are unable to consider adequately when signing the surrogacy contract. The
Justifications or issues of enforceability of surrogacy contracts can be better explained with the
help of following theories of contract.26”26
2.3.1) Fried theory of Moral obligation
22
Martha A Field, ‘Surrogate motherhood, The Legal and Human Issues’, Harvard University
press, Cambridge, Massachusetts and London,1998 p 15.
23
Elizabeth S. Scott, Surrogacy and the Politics of Commodification, LAW & CONTEMP.
PROBLEMS 72, p. 109, 146 (2009).
24
Id.
25
United Nations Convention on Rights of Child, 1989.
26
Hugh V. Mchachlanand J.Kim Swales, Commercial surrogate Motherhood and the alleged
commodification of children: A defense of legally enforceable contracts, LAW AND
CONTEMPORARY PROBLEMS, Vol 72, p. 91 (2009).
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“Fried’s moral obligation theory of contract law rests upon the ‘promise principle’ which itself is
supported by the three pillars of trust, commitment, and individual autonomy. 27 Fried contends
that the promise principle serves as the moral basis of contract law. 28 The promise principle
reflects a societal recognition that individual have basic rights with respect to their persons, their
labor, and that individuals can freely ‘dispose of these rights on terms that seem best of them’. 29
According to Fried, a promise confers upon the promise a moral power to consummate a
transaction with the expectation of promised help form the promisor. The promises of the
political parties are based on trust, which becomes a powerful tool for our working our mutual
wills in the world. Therefore, Fried concludes that, by promising, we transform a choice that was
morally neutral in to one that is morally compelled.”30
“The second element of Fried’s promise principle is commitment. 30 According to Fried’s, a
promise invokes trust in future actions, not merely in present sincerity. In order to animate this
trust, commitment is required: the promisor must be committed to more than the truth of some
statement. Fried suggests that commitment prevents a change of heart by promisor because a
commitment ‘‘makes non optional course of conduct that would otherwise be optional. The
irrevocable, non-optional nature of the commitment reflects the reciprocity of gain between the
promisor and the promise as to terms of the promise.”31
“The third element of the Fried’s promise principle is individual autonomy. 32 Mutual respect
allows men and women to accomplish what in a jungle of unrestrained self-interest could not be
accomplished. Fried concludes that recognition of the opportunity to accomplish things by
promise is not grounded merely in a societal convention of upholding promises, but rather, is
grounded in the individual’s moral obligation to keep the promise.”32
27
Donald H. J. Hermann, Review of “Economic Analysis of Law,” By Richard A. Posner, 1974
WASH. U. L. Q. 354 (1974). Available at:
https://openscholarship.wustl.edu/law_lawreview/vol1974/iss2/10
28
MARTHA A FIELD, SURROGATE MOTHERHOOD, THE LEGAL AND HUMAN ISSUES, p 15
(Cambridge, MA: Harvard University Press, 1998).
29
Stephen G York, A Contractual Analysis of Surrogate Motherhood and a Proposed Solution,
24 LOY LAL REV. 395 (1991).
30
72, p. 109, 146 (2009).
31
Id.
32
Id.
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“In the context of surrogate mother contracts however, Fried’s theory is unsupportable because
the inseminated surrogate promisor undergoes psychological and psychological experiences that
in the end, render the post-partum mother a different ‘individual’.33
Therefore, a theory of contract that provides an escape mechanism for the promisor in a scenario
where the promisor has undergone a fundamental change in circumstances, views and goals is
necessary.”33
2.3.2) Kronman’s Theory of Distributive Justice
“Anthony Kronman identifies the basic theme of libertarian theory of exchange, only voluntary
agreements that do not infringe on rights of third parties, are enforceable. He notes that in
assessing the voluntariness of an agreement the fact that the agreement was motivated by a
“deliberate decision of some sort” is not dispositive. 34 He suggests that a true assessment of
voluntariness would demand giving adequate consideration to the circumstances under which the
agreement was entered. Consequently, Kronman asserts, contract theory should specify the
circumstances under which an agreement is made voluntarily.”34
“Kronman provides three examples of circumstances which make a promisor’s agreement
involuntary and thus unenforceable (1) incapacity of the promisor (2) performance of an
impermissible and (3) the other party’s monopoly of some scare resource. The Problem Kronman
argues, is how to identify the circumstances under which an agreement should be deemed in
voluntary. He posits that the problem is determining which of many forms of advantage taking in
exchange relationships are involuntary and thus impermissible.35 Kronman uses the term
advantage taking in liberal sense and concludes that any positive attributes one party has that the
other party lacks, constitutes an advantage. Advantage taking may use of inherent traits, such as
intelligence or strength and resources, such as information, in the contract exchange process.
Kronmon asserts that advantage taking occurs in every contractual exchange by both parties to
the transaction, but not every exploited advantage is objectionable. According to Kronmon, an
33
David Adams Friedman, Bringing order to contracts against public policy, FLORIDA STATE
UNIVERSITY LAW REVIEW, Vol 39, pp 554-620, available at http://law-wss-
01.law.fsu.edu/journals/lawreview/backissues/vol39/documents/friedman.pdf visited on
7\3\2016.
34
Id.
35
Id.
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agreement is voluntary, and therefore largely enforceable, if no objectionable advantage-taking

takes place.36”36
“He offers the principle of Paretianism as the proper basis to make this distinction; one that, he
argues, libertarians would adopt. Paretianism states that ‘a particular from of advantage- taking
should be allowed (only) if it works to the long run benefit of those disadvantage by it’.Kronamn
considers the possibility of two distinct interpretations of this principle, one individualistic and
other class based.37 Noting the near unworkability of indivialistic interpretation, he opts for a
class based interpretation, “requiring only that the welfare of most people who are taken
advantage of in a particular way be increased by the kind of advantage- taking in question.”37
“Secondly, the principle of paretianism leads to contradictory conclusions depending on how the
class of ‘surrogate mothers’ is defined for example, surrogates from the urban or rural areas and
surrogates from the suburbs.38 When the principle applied to the class of ‘all surrogate mothers”
however, a contrary result is reached. This dichotomy seems somewhat arbitrary.”38
2.4) Surrogacy Contracts are against Public Policy
“An Agreement is unlawful if the court regards it as opposed to public policy. The normal
function of the Courts is to enforce contracts; but consideration of public interest may require the
courts to depart from their primary function and to refuse to enforce the contract. 39 The Doctrine
of Public policy may be summarised thus “Public policy or the policy of the law is an elusive
concept, it has been described as ‘untrustworthy guide’, ‘variable quality’, ‘unruly horse’, etc;
the primary duty of court of law to enforce promise which the parties are made and to uphold the
sanctity of contract which forms the basis of society; but in certain cases, may relieve them from
their duty on a rule founded on what is called the public policy; for want of better words Lord
Atkin describes that something done contrary to public policy is a harmful thing; but the doctrine
is extended not only to harmful cases but also to harm full tendencies; 40 this doctrine of public
36
PETER DE CRUZ, COMPARATIVE HEALTHCARE LAW, SURROGACY AND REPRODUCTIVE
TECHNOLOGY, p 481 (2001).
37
United Nations Convention on Rights of Child 1989.
38
David Adams Friedman, Bringing order to contracts against public policy, FLORIDA STATE
UNIVERSITY LAW REVIEW, Vol 39, pp 554-620, available at http://law-wss-
01.law.fsu.edu/journals/lawreview/backissues/vol39/documents/friedman.pdf visited on
7\3\2016.
39
Barbara L., Atwell, Surrogacy and Adoption: A case of Incompatibility, COLUM. HUM. RTS L.
REVIEW 20, 774 (2002-03).
40
Tina Lin, Born Lost, Stateless children in International Surrogacy Arrangements, CARDOZO
JOURNAL OF INTERNATIONAL LAW AND COMPARATIVE LAW, Vol. 21, p 559 (2013).
10 | P a g e
policy is branch of Common law , and just like any other branch of Common law, it is governed
by precedents, the principles had been crystallised under different heads and though it is
permissible for courts to expound and apply them to different situations, it should only be
invoked in clear and in contestable harm to the public; though the heads are not closed and
though theoretically, it may be permissible to evolve a new head under exceptional
circumstances of changing world, it is advisable in the interest of stability of society not to make
any attempt to discover new heads in these days.41”41
Though the Chief Justice Shirley Abrahamson in his Concurring opinion in Baby FTR case
points out numerous public policy issues regarding the validity of surrogacy agreements
including “Must the agreement be in writing, should compensated agreement be allowed and
what are limits on compensation, should the availability of surrogacy is limited to married
couples or to infertile intended parents,42 should the age of any party be limited, should a spouse
be required either to consent or to be made party to the contract, must each individual involved
must be represented with the counsel; should State require that information about each
individual’s legal rights provided, what provisions are valid regarding who make decisions about
health care and termination of pregnancy; how and when may the agreement be terminated, and
must any party to the agreement be given opportunity to change his or her mind before and after
the birth of the child”.43
“On the other side, when we argue that surrogacy contracts are against the public policy, we are
concerned with the public policy of ‘respect to the women dignity’ and ‘use of her reproductive
capacity’. This issue arises in the case of commercial surrogacy. From the past decades,
commercial surrogacy motherhood has gained notoriety as a method for acquiring children.
Commercial surrogacy substitutes market norms for some of the norms of parental love. Most
importantly, it requires us to understand parental rights no longer as trusts but as things more like
property rights that is, right of use and disposal over the things owned. 44 For example in this
practice the natural mother deliberately conceives a child with the intention of giving it up for
material advantage. Her renunciation of parental responsibilities is not done for child’s sake nor
41
Subba Rao J. in Gheru Lal Parakh v Mahadeodas AIR 1959 SC 781, Dr. Avtar Singh, Contract
and Specific Relief, Eleventh Edition, EBC, Lucknow p264-265.
42
Gheru Lal Parakh v. Mahadeodas, AIR 1959 SC 781.
43
David P Toomey Marianne M Jennings, Stephanie m. Greene, Business Law: Principles of
today’s commercial environment, p 275 (2014).
44
DR. AVTAR SINGH, CONTRACT AND SPECIFIC RELIEF, p. 264-265 (11th edn., 2018).
11 | P a g e
for the sake of fulfilling an interest she shares for the child, but typically for her own sake(and
possibly if altruism for the sake of the intended parents). She and the couple who pay her to give
up her parental rights over her child thus, treat her rights as a kind of property rights.
All such practice for the compliance of the surrogacy contracts are derogatory to the dignity of
women, protection of which is the prior duty all systems.45”45
“As it is held that ‘public policy is a very unruly horse, and when once you get astride it, you
never know where it will carry you’. 46 This is the rule of caution and as said by the Lord
Halsbury that, ‘‘any court can invent new head of public policy’’. 47 In accordance to that
justifications for surrogacy contracts to hold it void as contrary to the public policy of ‘protection
of dignity of women’ are required.
For example, in the New York, The Task Force Life and Law released a report entitled
Surrogate Parenting: Analysis and Recommendations for Public Policy in 1988.48 The Task
Force unanimously recommended that public policy should prohibit commercial surrogate
parenting. The members concluded that the practice could not be distinguished from the sale of
children and that it placed children at significant risk of harm. 49 They also agreed that surrogacy
undermines the dignity of women, children, and human reproduction. The Task Force rejected
the notion that rights as fundamental as the right of a parent to a relationship with his or her child
should be bought and sold or waived irrevocably in advance of the child's birth. Legislation
based on the Task Force's proposal was enacted and named New York Domestic Relations Laws.
New York law holds that commercial surrogacy contract contravene public policy and provide
for civil liberties penalties for those who participate or facilitate in commercial surrogacy
contract in New York.71 Altruistic surrogacy contract are not penalized, but neither they are
enforceable. Surrogacy parenting contracts are contrary to public policy of the state and are void
and unenforceable.50”50
45
Id.
46
Lori B Andrews, Beyond Doctrinal Boundaries, A legal framework for surrogate motherhood,
VIRGINIA LAW REVIEW VOL 81, p. 234.
47
E. Allen Farnsworth, Farnsworth on contracts (2nd edition 2001).
48
Sec 124 of the Article 8 of the Domestic relation Laws of New York.
49
50
Elizabeth S. Anderson, Is women’s Labor a commodity, PHILOSOPHY AND PUBLIC AFFAIRS,
Vol.19, No.1, pp. 71-92 (1990), available at
http://scholar.harvard.edu/files/dprinz/files/anderson_is_womens_labor_a_commodity.pdf?
m=1446340720, visited on 8/3/2016.
12 | P a g e
“India is in the way to bring the policy for protection of dignity of women working as surrogates
in the economic necessities in the country. The Surrogacy (Regulation) Bill, 2014 is pending in
the Parliament.
Hence, the protection of dignity of women who are surrogate and welfare of the child are the
public policies which can prohibit or regulate the practice of surrogacy all over the world
because when freedom to enter in to contract causing wrong or harmful effect in to life of the
parties of the contracts and even on the future generation of the society, there must not be any
hesitation to declare it void and unenforceable.51”51
2.5) Surrogacy Contracts are Legal and enforceable
“There are another approach to the enforceability of surrogacy contracts that they are enforceable
and valid regulated by some specific legislations in both form i.e. altruistic and commercial in
some countries. For example, UK and Australia, permits only altruistic surrogacy and some
states in USA such as California and Florida and Israel permits Commercial surrogacy and in
India and Ukraine also commercial surrogacy is allowed. 52 The legality of surrogacy contract in
these discipline are though governed by the specific laws but jurisprudential justifications are
freedom of an individual to enter in to contract.53 It simply advocates that women has right to use
their body.54 The legal recognition of contractual motherhood enhanced the women autonomy,
understood as free choice, by creating opportunity to choose to act as surrogate mother or to
contract as gestational services of another woman so one can raise the child borne by another.
Further, the practice of surrogacy enhances the subjectivity of women by creating opportunities
to participate in reproductive relationship that do not involve essential understandings of
pregnancy, reproduction or motherhood.55”55
51
52
DR ANEES V. PILLAI, SURROGATE MOTHERHOOD AND THE LAW INTERNATIONAL AND
NATIONAL PERSPECTIVE, p. 266. (Regal Publications, 2015).
53
72, p. 109, 146 (2009).
54
55
Todd M Krim, Beyond baby M: International perspective on gestational surrogacy and the
demise of unitary biological Mother, ANNALS OF HEALTH LAW, Vol 5, Issue 1, p 192-193
(1996).
13 | P a g e
“Thus the issue of prohibiting or regulating surrogacy contracts is not related to the status of
women or her freedom to enter in to contract or it nowhere suggest that woman are weak. But
instead there are certain subject matters that are so important and so deeply personal that we as a
society do not want the state to intervene to bind people men or women by their previous
promises. Here are some examples of other decisions, our law treats it inherently not binding
decisions that might be made by men as well as women:
1. A promise to donate an organ, even if donation is legal, it is difficult to imagine a court
attempting to enforce a promise to donate if the donor changed his mind.
2. A promise to have sex. This promise is perfectly legal, but if either party changes his mind,
other cannot go to court to obtain enforcement.
3. A promise to marry. One may agree to marry another, but if he changes his mind, his promise
to do so cannot be enforced.
4. And finally, a promise to give up one’s own child for adoption is not a binding promise. Under
the law of every one of the United States, a promisor who changes his or her mind will not be
made to give up the child. The planned adopters may rely on the birth’s mother promise to give
the child up for adoption and they may even spend money on items like birth mother’s medical
expenses, but it is clear that if birth mother changes her mind during pregnancy or after the birth
of the child,56 they will not obtain any parental right over the child 76 Thus, it can be concluded
in the manner that contractual freedoms and human choices are not without limits, autonomy and
human agencies cannot be reduced to mere self-sufficiency and such things must not permitted in
the society which are disturbing to most basic unit of society i.e. family i.e. relationship of child
and parents.57”57
56
57
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LEGITIMACY OF CHILD BORN IN SURROGACY
“Currently, the biggest risk to children in the surrogacy context comes not from the
actions of either set of parents but from the uncertain status of the law, which, can lead
to the child being subjected to years of litigation to determine who will be his or her
legal parents”58
--- Lori B. Andrews
“Every child has the special place in the society, family and for the parents. Society defines the
place and shape of the childhood, family protects and save children while the parents nurture the
child. Children are important for the society or better to say country because they are the future
of not only the family and country but of human race.59 As the procreation is the natural instinct
of the human being and every human being is driven by this natural instinct and needs
parenthood. Procreation is one of the aim of the family due to religious, cultural, and social
reasons. Those who can procreate naturally without medical assistance are fortunate. But those
who are infertile medically or socially in modern world has the opportunity to get the parenthood
through the help of Assisted Reproductive Techniques. Surrogacy is one of such assistance to the
infertile people or to those who due to any reason did not preferred to bear the child physically.
From last decade, it is proved to be the best way to get the child. 60 Surrogacy arrangement has
received worldwide attention in recent years and has generated serious debate over ethical,
social, moral and legal issues related to surrogacy and also about the rights of the people
concerned with the arrangement i.e. surrogate mothers, child born out of surrogacy and intended
parents.61 Out of these issues, the most important issue is the status of children born out of
surrogacy arrangements because it is legal status from which children derive many important
rights (i.e. identity, nationality, maintenance, inheritance). 62 It is generally argued that ultimate
victim of surrogacy arrangement is the child, because in the surrogacy arrangement, child is not
58
Lori B Andrews, ‘Beyond Doctrinal Boundaries, A legal frame work for surrogate
motherhood’, Virginia Law Review Vol 81:234.
59
Id.
60
Id.
61
72, p. 109, 146 (2009).
62
Id.
15 | P a g e
born through natural phenomenon of procreation (intercourse) but there is involvement of third
party as a surrogate or egg donor or sperm donor.63”63
“As more than two parties are involved in the birth of the child in surrogacy arrangements, the
concerns of the protection of the rights of the child raised. Further, the surrogate child is not the
party to the contract but is the outcome of the contract and due to the inherent vulnerability of the
child, it becomes imperative for the state to interfere in the procedure of the surrogacy to protect
the rights and welfare of the surrogate child under the head of ‘Parens Pateriae’. This is a
doctrine that grants the inherent power and authority of the state to protect person who are
legally unable to act on their own behalf.4”64
“Though the legitimacy of the child is determined either through express legal provisions or
through the presumptions.65 In case of surrogacy arrangements, the countries where surrogacy
contracts are enforceable legislation provide the specific provisions for the legitimacy to the
children born out of that arrangements such as in United Kingdom The Human Fertilization and
Embryology Act 2008, in United State of America, there is Uniform Parentage Act 2000, The
Children Act 2005 of South Africa and various states Laws from the Australia.66”66
“The issues of legitimacy of child born through surrogacy arises in those cases in which the
countries where surrogacy arrangements was made has not specific law on the subject, like India
or the practice of surrogacy is prohibited in that country like France and Germany. For example
in Jan Balaz v. Anand Municipality and Others, the Gujarat High Court held that the law no
presumption can be drawn for a child born out of surrogate mother, is the legitimate child of the
intended parents, so as to have a legal right born to a couple through their sexual intercourse. If
the child is considered as the legitimate child of intended parents, there would be difficulties in
bringing up of the child and innocent child would also suffer injustice. The Gujarat High Court
observed in the above case that the only remedy is a proper legislation drawing such a
presumption of legitimacy.67”67
63
64
65
(1996).
66
72, p. 109, 146 (2009).
67
Id.
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CONFLICT OF NATIONALITY AND CITIZENSHIP
“The child shall be registered immediately after birth and shall have the right
from birth to a name, the right to acquire a nationality and State parties has to
ensure the implementation of these rights in accordance to their national laws
and their obligations under international instruments in this field, in particular
where the child would otherwise stateless”68
---Article 7 of Convention of Rights of Child
“Nationality is a legal bond having as its basis a social fact of attachment, genuine connection of
existence and sentiments together with the existence of reciprocal rights and duties. Nationality
is a legal relationship which exists between the Nation and individual. Citizenship, on the other
hand, denotes the relations between the person and the State law. 69 In other world through
nationality the civil and natural rights of the person may come under the International Law while
the rights of the citizenship are the sole concern of State Law. 70 A person acquires nationality of
the state where he is born (‘Jus Soli ’means right of the soil).71 He also acquires the nationality of
his parents at the time of its birth (‘Jus Sanguinis’ means right of the blood). Nations operating
under the jus soli principle confer citizenship to those who are born within its territories, while
nations who have adopted the Jus Sanguinis principle grant citizenship based upon the
nationality of child’s parents or ancestors. In case of International Surrogacy Arrangements the
nationality and citizenship of child is often in conflict because there is lack of uniform approach
on surrogacy in different countries. Some prohibit it, some regulate it or some neither prohibit
nor regulate but permit it.72 For example if a couple hires a surrogate in a foreign nation
68
69
Id.
70
(1996).
71
Barbara Stark, Transnational Surrogacy and International Human Rights Law, ILSA JOURNAL
OF INTERNATIONAL & COMPARATIVE LAW, Vol.18, p. 2, Available At:
http://Ssrn.Com/Abstract=2118077.
72
Id.
17 | P a g e
operating under jus soli principles such as United States, there child would not born stateless,
although there is no guarantee that couple country would recognise the child as citizen100. In
contract if the couple hire surrogate in a foreign Nation operating jus Sanguinis principles,
situation may arise that there child may not recognised as citizen of any state. Determining legal
parentage in the countries which apply jus Sanguinis is difficult when two nations adopt different
approaches on surrogacy.73In such situation children born through that arrangement are stateless.
The right to citizenship is very important right of an individual as it is the basis of his civil &
political rights. A citizen possess full civil and political rights. 74 Thus acquiring a citizenship is
very important for every individual. Stateless individuals face deprivation of rights of
international and domestic arenas. Because the nationality is the principle links between the
individual and international law, the stateless individual lacks the essentials condition for
securing to the individual the protection of his rights in the international sphere. Domestically the
stateless individual may be denied to ‘right to education’, right to health care, legal employment,
and political participation.75”75
Thus in international surrogacy context, the acquisition of citizenship for a surrogate child in
cases of International surrogacy arrangement is a complex issue.76
73
A.I.R 2010 Guj.21.
74
(1993)851, P 2d 776 (Cal)
75
Id.
76
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CONFLICT OF CUSTODY OF CHILD
“It is in the best interest of the child that he/she should remain with their natural
parents and unnecessary separation form the natural parents should be
avoided.”77
--- Baby M Case
“As mentioned above that in surrogacy arrangements conflict is to determine parenthood either
due to conflict in the laws of countries, in international surrogacy cases and in domestic cases,
sometimes dispute arises due to change of mind of the surrogate mother or the intended parents.
Fundamentally the surrogacy arrangement effectively dismembered the female reproductive role
that there is three possible scenario of the custody conflicts which is very complex. For example,
(1) a women who donate an egg that, when fertilised, will be implanted in the uterus of another
woman who intends to raise the child. (2) A woman who provides the egg may herself may
intend to raise the child carried to term by another woman. (3) A couple desiring a child may
arrange for a woman to gestate an embryo produced both from donated sperm and the donated
egg. This dispute of parentage leads the dispute of custody of the child. Custody of the child born
of surrogacy arrangements are considerably more complicated.78 If the adoption after surrogacy
falls through, the father may be able to claim a right to the child because of his biological
connection. His inability to prevail on the contract (either because the mother is not bound by it
or because surrogacy contracts generally are considered illegal in that jurisdiction) will not
necessarily determine whether he has any rights to custody or visitation or, indeed any obligation
to support his offspring.79As in most of the jurisdiction intended parents are held as the legal
parents of the child, but when determination of legal parents are in conflict then custody of child
automatically becomes uncertain. Any such custody dispute is harmful to the interest and welfare
of the child. This dispute may arises in different contexts as between intended parents and
surrogate, divorced intended parents, in case of sperm or egg.80”80
77
537 A.2d 1227, 109 N .J.396(N.J.1988).
78
Article 7 of the Convention on Right of Child States
79
A.I.R 2010 Guj.21 para 20.
80
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“Number of cases arises where intended parents have failed to establishing their parenthood over
the surrogate child. For example in Jaycee B. v Superior Court a child was born to a surrogate
mother using sperm and eggs from anonymous donors because the infertile couple was unable to
create their own embryo using the in vitro fertilization techniques. 81 The couple chose to use
anonymous donors rather than asking the surrogate to use her own eggs because of the Baby M
case in New Jersey in which the surrogate had eventually refused to hand over the baby saying
that she was its biological mother and her right to raise the child pre-empted the commissioning
parents’.82 The child thus had five people who could lay claim to parenthood – a genetic mother,
a commissioning mother, a surrogate mother, a genetic father and a commissioning father. One
month prior to the birth of the baby Jaycee the intended parents John and Luanne separated and
John sought to rescind his obligations under the surrogacy contract so as to avoid having to pay
child support for Jaycee. Luanne sought both custody and support from her ex-husband. The
court battle continued and for three years Jaycee did not have a legal parent. A Californian court
granted temporary custody of the baby Jaycee to Luanne and ordered John to pay for child-
support.83
Such as a German couple case in India, where a Mr and Mrs Balaz 84 commissioned a surrogate
pregnancy in India by using Mrs Balaz sperm and donated egg. The twins were born and an
Indian Birth certificate were issued naming the Balaz as their parents. The German Government
did not recognised the birth certification of the babies because surrogacy is illegal in Germany.
The Indian passport is also denied to the twins because their birth certificate lacked the “Indian
Parents”.85 The Indian Ministry of External Affairs ordered the Balaz to surrender the passport
while the matter went before the Gujarat High Court. The Court recognised the nationality of
children as Indian because they born in India through Indian woman (surrogate), and the
81
See Adam Marshell, Choices for a child: An Ethical and Legal Analysis of a failed Surrogate
Birth Contract, U. RICH. L. REVIEW 30, p. 275 (1996).
82
(1996).
83
Hague Conference on private International Law, The Desirability and Feasibility of further
Work on the Parentage/ Surrogacy project (Preliminary Document No. 3 B of April 2014 for
attention of the Council of April 2014 on General Affairs and Policy of the Conference, (18).
84
Olga B.A. van den Akker, Psychological aspect of Surrogate Motherhood, OXFORD JOURNAL,
HUMAN REPRODUCTION UPDATE, Vol 13 Issue 1, pp 53-62 available at
http://humupd.oxfordjournals.org/content/13/1/53.full.
20 | P a g e
surrogate woman was held legal mother of the children. The Supreme Court finally considered
the matter and adoption as possible solution.”85
“Again Goldberg Twin case a gay couple from Israel, arranged a surrogacy in India using a
donated egg and Mr Goldberg’s sperm. 86 Israel allows surrogacy but does not allow gay couples
to be parents under surrogacy arrangements. When Goldberg and Angel’s surrogacy resulted in
the birth of twin’s boys, they found themselves stranded in India after the Jerusalem Family
Court refused to allow a paternity test to initiate the process for granting Israeli citizenship for
the twins.87
The French Couple Mennesons, paid a surrogate in California to carry their daughters, who has
been conceived using Mr Mennoson’s sperm and the egg of a friend. The Twins had issued
United States birth certificate stating that the Mennonson were their parents. 88 The Mennonson
were able to use these birth certificates to travel back to France with the twins, but the following
ten years battling in court to be recognised as the twins’ parents and for the girls to gain French
citizenship. Though in recently European Court of Human Right gives the decision in favour of
the Mennesons and established the citizenship of children in France for the welfare of child.89
Another interesting case M.C .v C.M from California, a surrogate mother filed a suit against a
man in Georgia who hired her for carrying children from him as a surrogate. After twenty days
week pregnant with triplets, the woman has sued to avoid her obligations under the surrogacy
agreement, claiming that the agreement is invalid and the statute that enables surrogacy in the
state is unconstitutional. The controversy between the parties arises when the CM, intended
father alleged request that MC surrogate mother selectively reduce the pregnancy from triplets to
twins. The surrogacy contract gives him that right. 90 The surrogate woman not only refused to do
that but also file a suit for declaration of sole custodian of that third baby and for the other two
declaration of legal mother as well as custody to be decided with their best interests.”90
85
Sec 54, The Human Fertilization and Embryology Act, 2008.
86
Shoshana L. Gillers, The Labour Theory of Legal Parenthood, THE YALE LAW JOURNAL, Vol
110, No.4, pp 692 (Jan 2001).
87
(1992)72 Cal .Rptr. 2d 280 (Ct App).
88
FRANCE WINDDANCE TWINE, OUTSOURCING THE WOMB, RACE, CLASS, AND GESTATIONAL
SURROGACY IN GLOBAL MARKET, p. 46-47 (Routledge Taylor & Francis, 2011).
89
Kristey Horsey, Challenging Presumptions: Legal Parenthood and Surrogacy Arrangements’,
CHILD AND FAMILY LAW QUARTERLY, vol 22, No 4, p 452 (2010).
90
(1996).
21 | P a g e
“The legal issues discussed above are the hurdles in the surrogacy arrangements are also the
denial of the basic human rights of the women and the child born out of such arrangements. The
protection of human dignity is the paramount law and to save the dignity of women and child it
is requires that uniform legal regulation has to be draft to remove the legal hurdles of the
surrogacy arrangements and to establish how and in what form it is permitted or prohibited. The
prospect of surrogacy arrangement as proposed in the suggestion of the study in the Article VII is
a good solution to the legal problems of the surrogacy arrangements as discussed above but its
feasibility has to be checked practically.91”91
91
Id.
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HUMAN RIGHTS ISSUES AND SURROGACY ARRANGEMENTS
“Surrogate Motherhood is violation of the dignity of both women and the child”92
“The common concern of the international instruments is to protect the human dignity,
prohibiting human trafficking, especially in women and children, ensuring best interest of child,
and against interfering with the natural process of conception.93 This is evinced by the
prohibition against choosing the sex of a baby created through in vitro fertilization127 and the
prohibition on cloning humans because such action is contrary to human dignity. 94 Similarly
surrogacy at its very core is exploitation. Surrogacy compromises the dignity of child by making
the child the object of contract ‘a commodity’. Further it compromises the dignity of women the
mother, even if her participation is voluntary, by merely treating her a gestational oven. Poor
women from developing countries and from under class of the developed world are reproducing
for the world market and for the more privileged classes in their own countries, and as well as
providing the raw material for stem cell research and cloning. There are violation of human
rights of surrogate women and the child born out of that arrangements in the surrogacy. Some of
human rights of surrogate and the children born of that arrangements are discussed as
follows.95”95
92
Report Presented at The Council of Europe, Strasbourg, Surrogate motherhood, A violation of
Human Rights, EUROPEAN CENTRE OF LAW AND JUSTICE 26 April 2012, available at
http://www.eclj.org, p 5.
93
Council of Europe, Convention for the Protection of Human Rights and Dignity of the Human
Being with Regard to the Application of Biology and Medicine: Convention on Human Rights
and Biomedicine preamble, OVIEDO (Apr. 4, 1997).
94
95
Article 3, Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women
and Children.
23 | P a g e
1. HUMAN RIGHT OF THE SURROGATES

“They want me to be the surrogate.
It’s her egg and his sperm.
I am Just oven.
It’s totally their bun”96
--- Phoebe Buffay
“The Universal Declaration of Human Rights (1948), The International Covenant on Social
Economic and Cultural Rights (1976), Convention on Elimination of All Forms of
Discrimination against Women (1979) and Convention on Rights of Child (1990) though do not
deal directly with the issues of surrogacy but they address some of the important rights involved
in the surrogacy arrangements like right to health, 97 the right to support,98 the right to know one‘s
origin99, and the right to a family. 100
Right to nationality etc.101 The argument here is that, in
surrogacy arrangements rarely human rights protection are assured to the surrogate mothers. 102 In
some cases, this may be accomplished through regulations or contractual provisions, such as the
assurance for the gestational mother for free pre-natal care. In other cases, this may be more
difficult, such as treatment for as yet unknown conditions that may result from the hormonal
treatments necessary for surrogacy.103 If, for any reason, such assurances are impossible,
surrogacy should be barred as a violation of human rights. Next to this there is reproductive
rights of women endorsed by the Cairo Consensus (1994)such as right to decide the number,
timing, and spacing between in the children, right to voluntarily marry and establish a family and
right to highest attainable standard of health.104 But the strange thing is that none of such human
rights are directly applied to the case of gestational surrogacy. The surrogate mother offers her
96
Phoebe Buffey (Lisa Kudrow) from the episode “The One with Phoebe’s Uterus” of the hit
American TV sitcom Friends. Original transmission date: January 8, 1998. Written by Seth
Kurland, cited in the Aristides N.Hatzis, Just the oven” A Law and Economics approach to the
Gestational Surrogacy Contract.
97
Article 12 of ICESCR.
98
Article 10 of the ICESCR.
99
Article 7 of the CRC.
100
Article 16 0f UDHR.
101
Preamble of Convention on the Adoption of Children, and Art. 3, United Nations Convention
on the Rights of the Child (CRC).
102
Article 8 of the CRC.
103
Sec 54, The Human Fertilization and Embryology Act, 2008.
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gestational services via clinic and broker to prospect parents in exchange for payments. The
women who are recruited for the surrogate purpose, are of low socioeconomic status. 105 Due to
their financial need, these women were willing to become a surrogate mother. For example,
earnings of surrogate mother in India sometimes is equal to family income of five years. The
adverse effect of the situation is that these surrogate mothers might not fully understand the
consequence of being gestational surrogate.106 The studies done by Smeredon, as mentioned by
Saroaha in her work that these women enter in to the contract without knowing the burden that
they will have to carry mentally and physically. It is questionable that to what extent the prospect
surrogate mother knows the danger of being surrogate. Dr Amrita Pandey shows the fact that in
what conditions Surrogates Mothers are bound to give birth to the child. For example, in India
the reaction of one of the surrogate mother as follows”106
“We were told if anything happens to the child, it’s not our responsibility, but anything happens
to me, we can’t hold anyone responsible. I think the legal contract says we will have to give up
the child immediately after the delivery; we won’t even look at it, Black or white, normal or
deformed, we have to give it away”.107
3. HUMAN RIGHTS OF CHILD

“Every child should be protected against any kind of discrimination, irrespective of child’s or
his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or opinion
national ethnic or social origin, property, disability, birth or other status”
---Article 2 of United Nation Convention of Rights of Child, 1989
“Convention on Rights of child guaranteed the child right to dignity, protection from sale or
trafficking, registration of his or her birth and to know his or her parents. 108 For example the right
104
(1996).
105
Baby Manjhi Yamada v Union of India, (2008) 13 SCC 518.
106
Preamble, art. 1, Additional Protocol to the Convention for the Protection of Human Rights
and Dignity of the Human Being with Regard to the Application of Biology and Medicine, on
the Prohibition of Cloning Human Beings, (Jan. 12, 1998).
107
108
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of the child not to suffer adverse discrimination on the basis of birth and parental status, (Article
2 of the CRC) the rights of child to have his or her best interests regarded as a primary
consideration in all actions concerning him or her (Article 3 of the CRC), as well as child rights
to acquire a nationality (Article 7 Of the CRC) and to preserve his or her identity (Article 8 of
the CRC). The basic human right of the child is to get the parenthood and right to know the
family are violated in the surrogacy arrangements because of a complex family arises for the
child born out of such arrangements.109 About five people can claim a parental status over the
child born out of such arrangements the contracting parents, the genetic mother and father, and
the surrogate.110 Maternity is now divisible into genetic, gestational, and social motherhood, and
these roles can be spread amongst a number of women. This division is most apparent in the case
of surrogate mothers, where at least three (and possibly as many as five) women can attempt to
claim parental rights over a child.111”111
“Some other issues related to the psychology of child born out of Surrogacy arrangements are
considered as they are treated by surrogate mother as outsider or different and carried for certain
purpose other than to get parenthood.112 Similarly, the effect on psychology of the own child of
the surrogate mother may not be positive because it may develop sense of insecurity to them that
they can be relinquished on payment of money one day.113”113
“These issues are directly related to the development and welfare of the child which is
paramount human right of the child. 114 Thus the commercial nature of surrogacy makes the
motherhood and child bearing highly controversial. At one end it commodifies reproductive
109
Supra note 122 Art 14.
110
Article 3, The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially
Women and Children
111
Mansi Mishra, Why a plan to ben foreigner will only worsen the plight of Indian surrogate
mothers, SCROLL.IN (Wed April 20, 2016), http://scroll.in/article/766408/why-the-plan-to-ban-
foreigners-will-only-worsen-the-plight-of-indian-surrogate-mothers, visited on 21/4/2016.
112
Id.
113
Bindu Shajan Perappadan, ART Bill may close surrogacy doors for foreigners, unmarried
people, THE HINDU OPINION (Oct 23 2015), available at
http://www.thehindu.com/news/cities/Delhi/art-bill-may-close-surrogacy-doors-for-foreigners-
unmarried-people/article7793884.ece.
114
Jyosana Agnihotri Gupta, Reproductive Biocrossings: Indian Egg donors and surrogates in
the globalized fertility market’, INTERNATIONAL JOURNAL OF FEMINIST APPROACHES TO
BIOETHICS, Vol.5, no.1, p 31 (2012).
26 | P a g e
capacity of women and separates the physical act of child bearing from the mother and on other
it uses child as a commodity.115”115
115
Id.
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ISSUES OF SURROGACY IN INDIA
“Exploitation, extortion and ethical abuses in surrogacy trafficking are rampant, go undeterred
and surrogate mothers are misused with impunity….. It is free trading market, flourishing and
thriving in the business of babies.”116
“Surrogacy in India is as of now considered legitimate because no Indian law prohibits
surrogacy, but then as a retort, no Indian law till date specifically permits surrogacy either. 117
Hence, surrogacy agreements in India are governed by ordinary contract law, i.e. Indian Contract
Act, 1872. To determine the legality of any such contract or agreements executed in India the
provision of the Contract Act 1872 has to be satisfied. 118 In commercial surrogacy agreements,
the surrogate mother enters into an agreement with the commissioning couple or a single parent
to bear the burden of pregnancy. In return of her agreeing to carry the term of the pregnancy, she
is paid by the commissioning agent for that.119 The usual fee is around $25,000 to $30,000 in
India which is around 1/3rd of that in developed countries like the USA. This has made India a
favourable destination for foreign couples who look for a cost-effective treatment for infertility
and a whole branch of medical tourism has flourished on the surrogate practice. 120 ART industry
is now a 25,000 crore rupee pot of gold. Anand, a small town in Gujarat, has acquired a distinct
reputation as a place for outsourcing commercial surrogacy. It seems that wombs in India are on
rent which translates into babies for foreigners and dollars for Indian surrogate mothers.121”121
“The Indian Surrogacy market is about the nine hundred crore. 122 At present close to 20% of all
intended parents seeking surrogates in India are foreigners. 123 According to 2012 study by the
confederation of Indian industry around 10,000 foreign couples visit India to commission
116
A Malhotra, Commercial Surrogacy in India, INTERNATIONAL FAMILY LAW JOURNAL 9
(2009).
117
Sec 807 of The Uniform Parentage Act, 2002.
118
Sec 54 of The Human Fertilization and Embryology Act, 2008.
119
Jyosana Agnihotri Gupta, Reproductive Biocrossings: Indian Egg donors and surrogates in
the globalized fertility market’, INTERNATIONAL JOURNAL OF FEMINIST APPROACHES TO
BIOETHICS, Vol.5, no.1, p 31 (2012).
120
Id.
121
Union of India v Jan Balaz and others, Civil Appeal no. 8714 of 2010 Supreme Court of India.
122
123
Supra note 122 Art 14.
28 | P a g e
surrogacy.124 There are estimated 200,000 clinics across the country. The Assisted Reproductive
Technology (ART) industry has evolved into a multi-billion rupee industry. India is
internationally known as a booming centre of a fertility market. The industry is growing fast
because of cutting-edge technology, trained medical staff, availability of rented wombs, and the
fact that it offers very competitive pricing. 125 As a result, India has become the surrogate capital
of the world and “Reproductive Tourism” produces almost 25000 babies in India every year. As
a matter of fact, “Reproductive Tourism” is a US $500 million dollar industry in India. 126 As the
surrogate cost and the fertility treatment cost are quite cheap in India as compared to the other
parts of the world, thousands of people from different parts of the world are pouring into India,
searching for surrogate mothers.127”127
“Across fertility clinics in India, almost 70% of surrogacy cases are for foreign clients and the
rest for NRIs and PIOs. Indian couples from barely 5% to &% of clientele. Commercial
surrogacy, either a criminal offense or prohibitively expensive for many first-world citizens, has
gone global in the last decade. India has become the international centre for reproductive
tourism, boasting numerous high-quality and low-fee clinics.128 The growth of the surrogacy
industry in India raises serious concerns of gender justice, in particular whether the option is
inordinately enticing for women who lack other remunerable options and whether the conditions
are adequate and the compensation fair.129 After the first surrogate delivery in India in June 1994,
India has steadily emerged as an international destination. Relatively inexpensive medical
facilities, know-how in reproductive technology, and the availability of women, largely from
poor socio-economic situations and who are willing to take up the task, have aided the growth. 130
Today there are thousands of clinics in India that offer such services. From what was generally
124
Law Commission of India, Need for Legislation to regulate assisted reproductive technology
clinics as well as rights and obligations of parties to a surrogacy, Report No. 228, p 11 available
at http://lawcommissionofindia.nic.in/reports/report228.pdf.
125
Id.
126
Id.
127
Id.
128
Union of India v Jan Balaz and others , Civil Appeal no. 8714 of 2010 Supreme Court of
India.
129
Vida Pantich, Global Surrogacy, Exploitation to Empowerment, JOURNAL OF GLOBAL ETHICS
9, 329-343 (2013), available at http://dx.doi.org/10.1080/17449626.2013.818390 visited on
5/3/2015.
130
29 | P a g e
confined to close relatives or friends in altruistic mode, the network has become extended, with
payment of money to surrogate mothers becoming the norm. Services are even being advertised.
Such commercialisation of motherhood has raised ethical, philosophical, and social questions
and raised fears of the exploitation of women as baby-producers, and the possibility of selective
breeding. In several instances, complications have arisen regarding the interests and rights of the
surrogate mother, child, and intending parents. Yet, there are no clear legal provisions in
place.131”131
1. EXPLOITATION OF SURROGATE WOMEN
“Primela Vaghela, A surrogate from Ahmadabad had lost her life in an attempt to give
birth to the surrogate child of an American Couple. She was penny less and wanted her
two children to be educated. After completing eight month of pregnancy, she collapsed
due to some complications. She has completed the contract because baby survived. India
is country where many women dies every day in normal child-birth. There is hardly
anyone to raise his or her voice against the death of surrogate, only the end product that
baby seems important in the process. The Police filed a case of accidental death.”132
---Times of India
“The growth of the surrogacy industry in India raises serious concerns of gender justice, in
particular whether the option is inordinately enticing for women who lack other remunerable
options and whether the conditions are adequate and the compensation is fair. The practice is
exploitative nature to the Indian surrogate due to failure of consent in the contract and in justice
across contract.133 The exploitation is said to occur when one party to an exchange takes
advantage of the other’s vulnerability to deny her share of the cooperative surplus. Surrogacy
contract in India is held to be Mutually Advantageous Exploitation (Mutually advantageous
exploitation means that the exploitee gains from the transaction as well as the exploiter. It is
advantageousness of the transaction not the exploitation. Which need not to be prevented but
have to be examined how much each party get benefit as compared to other.134
131
Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially
Women and Children.
132
17 May 2012, Times of India, ‘Surrogate mother dies of Complications’.
133
Id.
134
30 | P a g e
Surrogacy contracts are legal in India on account of the Indian Contract Act 1872. Sec 10 of the
Contract Act provides that all agreements are enforceable, if they are made by free consent of
parties competent to contract, are for a lawful consideration, are with a lawful object, and are not
expressly declared to be void.135 Therefore if surrogacy agreement satisfy these conditions, it is
an enforceable contract.136
If we examine, surrogacy contract in India on account of free consent of surrogates and Justice it
is held to be exploitative. To examine the free consent of an Indian surrogate it is required to
examine the circumstances in which she consented to the surrogacy agreement. 137 Indian
surrogates are typically between the ages of 18 and 45, with limited education and often
illiterate, have two or more children, and can expect to earn between $1500 and $5000. 138 In lieu
of expenses, surrogates in Anand are housed in clinical compounds where all of their meals and
activities are monitored, and from which they are not permitted to leave (nor indeed go
downstairs) without clinical permission. Indian surrogates are poorer both relatively and
absolutely than surrogates in the USA, almost all are living below the poverty line as defined by
the Indian government, and the payment they receive is often unavailable to them via other forms
of work in their communities.139 The survey also indicated that the surrogates were often made to
undergo painful IVF sessions as many as 20 to 25 times to ensure that she was impregnated with
a healthy foetus.140”140
“India, with an alarmingly high maternal death rate, surrogacy might lead to exploitation of poor
women by rich couples. Not only them, the fact that their husbands too do not prevent their
wives from doing it only because of money also reflects exploitation. 141 According to the Draft
Bill, women cannot give more than five live births including her own children and no surrogate
shall undergo embryo transfer more than three times for same couple. But this number is quite
135
Sec 10 of the Contract Act.
136
Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially
Women and Children
137
Barbara Stark, Transnational Surrogacy and International Human Rights Law, ILSA JOURNAL
OF INTERNATIONAL & COMPARATIVE LAW, Vol.18, p. 2, available At:
Http://Ssrn.Com/Abstract=2118077.
138
Id.
139
Union of India v Jan Balaz and others, Civil Appeal no. 8714 of 2010 Supreme Court of India.
140
72, p. 109, 146 (2009).
141
Amrita Pandey, Commercial Surrogacy in India: Manufacturing a perfect Mother Worker,
JOURNAL OF WOMEN IN CULTURE AND SOCIETY, Vol 35, no 4 (2010)
31 | P a g e
big and might have an adverse effect on their health, as they belong to low social economic
status with poor health. Although there is mental pressure on the surrogate to deliver the healthy
baby.142
This rampant exploitation of surrogate mothers has to be checked and prohibited through proper
legislation.143”143
4. CITIZENSHIP OF CHILD IN INDIAN PERSPECTIVE
“The question relating to the citizenship of children born through an Indian surrogate and
claimed by a foreign couple is one outstanding issue. Unscrupulous or mismanaged agencies
could wreak havoc with lives. Many surrogacy agencies claim they are offering a legitimate
service but in truth they operate in a grey area. 144 The absence of appropriate legal provisions to
ensure that surrogate mothers, who often enter into loosely drafted agreements with
commissioning parents, do not become vulnerable is a serious issue. 145 Right now, the surrogate
mother could find herself with a child she did not plan for, should the clients change their mind.
On the other hand, the big worry of the intending parents would be that the baby may not be
handed over to them.146 A comprehensive regulatory framework and binding legal provisions
could bring order to the field, but the larger moral question whether human reproduction should
be commercialised would still remain unanswered.147”147
“There are some other unattended legal issues of surrogacy in India, Such as
 There is no specific legal remedy available for the biological parents to obtain the
exclusive legal custody of surrogate child.
 There is no process mentioned that how can the rights of the surrogate mother be waived
off completely.
 There is no method provided for rights of the donors either sperm or ovum.
142
FRANCE WINDDANCE TWINE, OUTSOURCING THE WOMB, RACE, CLASS, AND GESTATIONAL
SURROGACY IN GLOBAL MARKET, p. 46-47 (Routledge Taylor & Francis 2011).
143
Id.
144
A Mother’s Market: An explorative study on the surrogacy industry in India, available at
http://iussp.org/sites/default/files/event_call_for_papers/Mother.pdf, visited on 23/4/2016.
145
Supra note 171.
146
147
Supra Note 162 p 50.
32 | P a g e
 There is question how the genetic constitution of surrogate baby can be established and
recorded with authenticity.
 In case of foreigners or non-Hindu couples, single parents or gay parents, they can only
claim guardianship of a child under the Guardianship Wards Act in respect of children
born out of surrogacy arrangements. However, under the new medical visa regulations
2012, foreign single parents, gay couples and unmarried partners cannot come to India
for surrogacy arrangements. For married men or women couples with more than two
years of marriage, the adoption process can still take place only in the foreign parent’s
country of nationality or permanent residence as the case may be. This is because the
Hindu Minority and Guardian Act 1956(HMGA) Hindu Adoption And Maintenance Act
1956(HAMA) do not allow any adoption proceeding to non- Hindus and thus Foreign
Non Hindu parents cannot invoke HMGA and HAMA for adoption proceedings in India.
 Weather a single or a gay parent can be considered to be the custodial parent of a

surrogate child.
 What would be the status of divorced biological parents in respect of the custody of a
surrogate child
 Would a biological parents be considered the legal parent of the children.148 An empirical
research conducted by the Centre for Social Research as mentioned above which is based
on the direct interviews of surrogates and the intended parents, revealed various area of
concern of surrogacy in India.149 Such as
 Delay in signing contracts, contracts are often signed until the fourth month of
pregnancy, when the risk of miscarriage was lower than in the early stages of pregnancy
 Motivation of becoming the surrogate mothers, most surrogates listed poverty as a sole
reason for their decision to carry a child for someone else.
148
ANIL MAHROTRA AND RANJIT MAHROTRA, SURROGACY IN INDIA, A LAW IN MAKING
revisited, p 11. (Universal Law Publishing, 2016).
149
Supra note 173.
33 | P a g e
 Lack of independent advice, Many surrogate mothers were illiterate and their only source
of information was the infertility clinic facilitating the arrangement
 Lack of free will when taking a decision to become surrogate mother, there were
concerns about pressures from family and infertility clinics to become surrogate.
In response to these legitimate issues of Indian surrogacy market in its current unregulated
form,150 it is argued that ‘India’s decision to permit surrogacy is a defensible one’ and calls for
‘application of a labour rights framework to help reconcile and competing values of contractual
autonomy and protection from exploitation’.151”151
150
Supra note 146 p 1429.
151
Supra note 162 p 50.
34 | P a g e
CONCLUSION
“Thus Legal Issues concerning surrogacy as discussed above leads to conclusion that surrogacy
arrangements in all its form i.e. prohibited, regulated or permitted are subject to conflicts.
Though every legal issues which is discussed above such as enforceability of surrogacy
contracts, determination of parenthood, conflict of nationality or the issue of exploitation of
surrogate can be solved either by amending the existing law which deal these issue or by making
such law in conformity with these issue.152 But this exercise is not as simple as it is suggested,
because debate is not only to amend or make a law but still the debate is either such
arrangements should allowed and legally recognised or not, especially commercial surrogacy
arrangements? Though the question is not which can be decided by law only either by regulating,
prohibiting or permitting such practice, because if it is like that there is one or other form of law
will definitely suited to the situation to surrogacy arrangements, but it is not like that as
mentioned in the preceding article IV. But here in surrogacy arrangements, it has to found that
what should be the extent of this practice, who should be allowed to use and in what
circumstance. Thus the legal issues discussed above either in domestic sphere or as a free market
in cross border surrogacy points towards the need to protect the vulnerable (surrogate mothers,
childless couples who are desperate to have children, and embryos which will, it is hoped,
become children) by creating minimum standards for any cross border surrogacy arrangement
through international regulation and well defined legislations in domestic spheres as suggested
by the researcher in Article VII under the heading suggestion.”152
Caitlin Pyrce. “Surrogacy and Citizenship: A Conjunctive Solution to a Global Problem.”

152
Indiana Journal of Global Legal Studies, vol. 23, no. 2, 2016, pp. 925–952. JSTOR,
www.jstor.org/stable/10.2979/indjglolegstu.23.2.0925. Accessed 28 Sept. 2020.
35 | P a g e

1625, 1665 PIL - Transnational Surrogacy and Induced Statelessness Old Project

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TRANSNATIONAL SURROGACY AND INDUCED

STATELESSNESS: INDIAN AND GLOBAL PERSPECTIVE

Disha Lohiya – 1665 Mr. Shashank Shekhar

Naman Jain – 1625 Faculty of Law

V Semester Public International Law

1. Ordinary Legal Issues...........................................................................................................1

2.1) Commodification of a Women’s reproductivity...........................................................3

2.2) Are Children a commodity?..........................................................................................5

2.3) Are Surrogacy Contracts Enforceable?.........................................................................7

2.4) Surrogacy Contracts are against Public Policy............................................................12

2.5) Surrogacy Contracts are Legal and enforceable..........................................................15

Legitimacy of Child born in Surrogacy.........................................................................................18

Conflict of Nationality and Citizenship.........................................................................................21

Conflict of custody of child...........................................................................................................23

Human Rights Issues and Surrogacy Arrangements.....................................................................27

1. Human Right of the Surrogates..........................................................................................28

2. Human Rights of Child.......................................................................................................29

Issues of Surrogacy in India..........................................................................................................31

1. Exploitation of Surrogate Women......................................................................................33

2. Citizenship of child in Indian Perspective..........................................................................35

TRANSNATIONAL SURROGACY AND INDUCED

“Surrogacy arrangements are a complex phenomenon. At one hand in simple form it is

2.1) Commodification of a Women’s reproductivity

2.2) Are Children a commodity?

2.3) Are Surrogacy Contracts Enforceable?

agreement is voluntary, and therefore largely enforceable, if no objectionable advantage-taking

LEGITIMACY OF CHILD BORN IN SURROGACY

CONFLICT OF NATIONALITY AND CITIZENSHIP

CONFLICT OF CUSTODY OF CHILD

HUMAN RIGHTS ISSUES AND SURROGACY ARRANGEMENTS

1. HUMAN RIGHT OF THE SURROGATES

3. HUMAN RIGHTS OF CHILD

ISSUES OF SURROGACY IN INDIA

 Weather a single or a gay parent can be considered to be the custodial parent of a

Caitlin Pyrce. “Surrogacy and Citizenship: A Conjunctive Solution to a Global Problem.”

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