COMMERCIAL SURROGACY VERSUS ALTRUISTIC SURROGACY:

ANALYSING THE EVEN AND ODD.

Submitted by

Sagar Kamrani

Division:- D PRN:- 16010324361 BBA-LLB

Symbiosis Law School, Hyderabad

Symbiosis International University, Pune.

In

January, 2018

Under the guidance of

Mr. Ahmar Afaq

(Assistant Professor)

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 CERTIFICATE

The project entitled “Commercial surrogacy versus Altruistic surrogacy: Analysing the even
and odd.” submitted to the Symbiosis Law School, Hyderabad for Family law as part of
Internal Assessment is based on my original work carried out under the guidance of Mr.
Ahmar Afaq. The Research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has been
duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the Candidate

Date:

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 INDEX
S.NO TOPIC PG. NO.
1. RESEARCH METHODOLOGY. 4.
2. RESEARCH OBJECTIVES. 4.
3. INTRODUCTION. 5.
4. DEVELOPMENT OF SURROGACY IN INDIA. 7.
5. SURROGACY IN INDIA: PRESENT SCENARIO. 8.
6. JUDICIAL APPROACH TOWARDS SURROGACY IN INDIA 9.
7. PRESENT LEGAL STANCE TOWARDS SURROGACY IN 11.
INDIA.

Research methodology

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 The Researcher will utilize both qualitative and quantitative data collection tools, focusing
mainly on the qualitative part. They will adopt a doctrinal mode of research for this paper.
The facts and laws relevant to this topic shall be acquired through different books and
journals. The Researcher will mainly depend on these laws, arguments by different scholars
and analysis of these together to arrive at conclusions. Apart from these, the other sources of
data collection will be different articles on the newspapers and internet regarding this topic

Research Objectives:-

The objective of the research is to basically highlight the meaning of Surrogacy and also
give an insight to the types of surrogacy prevalent in India. The research project will also try
to show how surrogacy has evolved in India over the period of time. This project also shows
a judicial approach towards surrogacy in India. Also to conclude the pros and cons of
surrogacy in India with respect to the international front are also highlighted.

INTRODUCTION

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The basic meaning of surrogacy is the action or state of being a surrogate or a surrogate
mother. It is the process of giving birth to a child as a surrogate mother or arranging for a
birth of such a nature. The practice by which a woman (called a surrogate mother) becomes
pregnant and gives birth to a baby in order to give it to someone who cannot have children 1.
Simple and clear definition of surrogacy is that when a couple wants a baby but is unable to
have a child because either or both partners are medically unfit to conceive, another woman is
artificially inseminated with the sperm of the father. She then carries the child full term and
delivers it for the couple. In such a case, the surrogate mother is the biological mother of the
child. In instances when the father’s sperm cannot be used, a donor sperm can also be used.
This is traditional surrogacy. There is also gestational surrogacy, wherein eggs from the
mother are fertilised with the father’s/donor’s sperm and then the embryo is placed into the
uterus of the surrogate, who carries the child to term and delivers it. In this case, the
biological mother is still the woman whose eggs are used, while the surrogate is called the
birth mother.2 In India commercial surrogacy has been legalised since the year 2002.
Commercial surrogacy is a complicated and often controversial topic. While it can be
difficult to find a single commercial surrogacy definition, the term generally refers to any
surrogacy arrangement in which the surrogate mother is compensated for her services beyond
reimbursement of medical expenses3. Surrogacy or commercial surrogacy is often defined as
a contractual undertaking whereby the natural or the 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 her parental rights subsequent to
the birth of the child4. Commercial surrogacy is the process in which an individual or couple pays a fee
to a woman in exchange for her carrying and delivering a baby. At birth, the child is turned
over to the individual or couple, either privately or through a legal adoption process. Couples with fertility
problems, same-sex couples, and single people who wish to be parents are the
most common types of people who seek surrogate mothers. Surrogacy was defined by the
Warnock Committee as the practice whereby one woman carries a child for another with the
intention that the child should be handed over after birth. This implies that the
1
https://www.merriam-webster.com/dictionary/surrogacy

2
http://indianexpress.com/article/lifestyle/health/draft-surrogacy-bill-2016-what-is-surrogacy-all-you-need-to-
know-2994140/

3
https://surrogate.com/about-surrogacy/types-of-surrogacy/what-is-commercial-surrogacy/

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US LAW REFORMS COMMISSION.

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carrying woman acts at the request of another woman who is usually unable to have a
child herself.  Surrogacy can simply involve the surrogate mother inseminating herself
with the commissioning father’s sperm. This is known as ‘partial surrogacy.’
Alternatively, in ‘full’ surrogacy an embryo is created in vitro ,usually using the
commissioning couple’s egg and sperm, and is transferred to the surrogate
mother’s uterus. Because of involvement of in vitro fertilization, pregnancy can only be
achieved by following treatment in a centre licensed under the Human Fertilisation and
Embryology Act and regulated by the
Human Fertilisation and Embryology Authority(HFEA) 5. Apart from the commercial surrogacy
altruistic surrogacy is also prevalent in India. Altruistic surrogacy means when a surrogate mother agrees to
gestate a child for intended parents without being compensated monetarily in any way. In other words it can be
considered to be a free form of surrogacy. In the altruistic surrogacy there is no involvement of money except
for a minor amount of money which is paid for the medical expenses and medical well-being of the surrogate
mother. Altruistic surrogacy is mostly performed by a female who is a close relative or acquaintance or a close
friend of the intended parents. The main reason for this is that there is a very less or almost no involvement of
money. The only money involvement is the payment of medical expenses of the surrogate mother. It would
not be wrong to say that even the commercial surrogacy is also under the altruistic surrogacy. The main reason
for this is that the surrogacy is done only out of generosity and unselfishness. The only difference in the two
surrogacies is that commercial surrogacy has an involvement of a payment of the fee for carrying other’s child.
Altruistic surrogacy is when a woman or to be properly termed as the surrogate mother gestates the child of a
couple or the intending parents free of cost or no money payment and the only payment done is that for the
medical expenses.

DEVELOPMENT OF SURROGACY IN INDIA:

5
LEGAL AND ETHICAL ISSUES OFCOMMERCIAL SURROGACY: AN OVERVIEW

SUGATO MUKHERJEE, LL.M FINAL YEAR STUDENT OF WEST BENGALNATIONAL

UNIVERSITY OF JURIDICAL SCIENCES, KOLKATA.

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Both commercial as well as altruistic surrogacy are quiet common in our country.
Commercial surrogacy has been legal in India since 2002. India is emerging as a leader in
international surrogacy. Indian surrogates have been increasingly popular with infertile
couples in industrialized nations because of the relatively low cost. Indian clinics are at the
same time becoming more competitive, not just in the pricing, but in the hiring and retention
of Indian females as surrogates as well as in providing high quality treatment to patients and
in quality outcomes. Surrogacy in India is much simpler and cost effective than anywhere
else in the world. There is an increasing amount of Intended Parents who choose India as
their surrogacy destination. The main reason for this increase is the less costlier surrogacy
and better flexible laws. In 2008, the Supreme Court of India has held that commercial
surrogacy is permitted in India. That has again increased the international confidence in going
in for surrogacy in India. Intended Parents from all over the world come down to India with
great dreams and hopes for attaining the joy of parenthood by opting surrogacy. Intended
parents contact hospitals over the internet mainly and to come across hospitals/ agencies
which do not provide complete information about the surrogacy procedures, time factors and
more importantly the cost factor. India’s very own Dr. Subhas Mukhopadhyay produced the
world’s second testtube-baby, Kanupriya Agarwal alias ‘Durga’ the girl who was brought
into the world by the doctor. The Indian baby was born on October 3, 1978. The advent of
science and technology has brought a great change in the life of human beings. At the same
time it has also brought problems which were otherwise unheard of. The study of
biotechnology has helped us to discover sex determination techniques and other scientific
developments like DNA testing, fingerprinting etc., to facilitate for administration of justice.
The recent development in the field of embryonic stem cell has affected human life in
numerous ways. The science has also used therapeutic cloning for treatment of persons who
are suffering from genetic disorders. The progress made in surgical procedure of organ
transplantation has also now become a debate of ethical problem. The concept of motherhood
is also affected and has been changed in to genetic mother, surrogate mother, biological
mother and social mother. In the past three decades, there has been a spectacular change in
the field of reproductive technologies. Reproductive sciences have come up with techniques
like donor insemination, in vitro fertilisation and embryo transfer methods which have
completely revolutionised the reproductive environment. These techniques have infused hope
into many infertile couples, who long to have a child of their own. Unfortunately
complications have also arisen once these methods were combined with surrogacy

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arrangements. Surrogacy is often seen as an alternative to adoption, although adoption may
be part of the process. Surrogacy occurs when a woman who is not pregnant agrees to bear a
child for another/others who will parent the child. Despite controversial and ethical issues
arising out of it, surrogacy has been gaining popularity all over the world, especially in the
west where adoption is not easy to come by. Research has stated that one-in-six couples have
problems with infertility. Some use medical treatments to overcome this situation, for some
however, no help is available. It is these couples where the woman has undergone a
hysterectomy or suffered multiple miscarriages or born without a womb where surrogacy
comes to the rescue6.

SURROGACY IN INDIA: PRESENT SCENARIO

To understand surrogacy in the Indian context, one must begin with the fact that, while the
Transplantation of Human Organs Act, 1994 banned the sale of human organs, organ loaning
— an equally difficult and risky venture-is being promoted through paid surrogacy. This is
due to a medical industry that welcomes profitable international ventures like “reproductive
tourism”’ even when infertility constitutes a small segment of domestic priorities. The
incidence of total infertility in India is estimated at 8 to 10 per cent, and for the vast majority
of Indian women it is preventable as it is caused by poor health, nutrition, maternity services
and high levels of infections. Only about 2 per cent of Indian women suffer from “primary”
infertility which is amenable to ART alone. Moreover, it is further reported that among the
cases of women who come for ART treatment, barely one per cent require surrogacy
assistance. Surrogacy is the practice of gestating a child for another couple and could involve
any of the various Assisted Reproductive Technologies (ARTs) like IVF (in vitro
fertilisation), IUI (intra uterine insemination) etc. Surrogacy has gathered much attention of
late due to the increase in the number of couples opting for surrogacy as well as of the
women acting as surrogates. The fertility market is estimated at Rs. 25,000 crore today, with
reproductive tourism industry growing by leaps and bounds. The past two years have seen a
150 per cent rise in surrogacy cases in India. The Gujarat town of Anand, for example, is a
hub of surrogate mothers. India has become the favourite destination for infertile couples
from across the globe because of the lower cost, less restrictive laws, lack of regulation of
ART clinics and availability of surrogate mothers. But surrogacy arrangements are drawn up
in a random fashion and can be exploitive, especially since surrogates are mostly from
socioeconomically weaker sections. At present majorly altruistic and commercial surrogacy
6
supra

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are mostly performed in India. It is the term used to describe the situation where there is no
formal contract or any payment or fee to the birth mother. It is usually an arrangement
between very close friends or relatives. In altruistic surrogacy, 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. The surrogate is paid merely to recompense her for
the pain undertaken by her and includes reimbursement of medical and other expenses or is
not paid at all. In contrast thereto, commercial surrogacy involves payment of hefty sum of
money as income to the surrogate for the service offered by her plus any expenses incurred in
her pregnancy and surrogacy is thereby looked upon as a business opportunity. It is a
business like transaction where a fee is charged for the incubation service, in consideration of
the birth mother surrendering the child at birth. There are usually financial arrangements like
the above in addition to ancillary expenses, loss of wages etc. And often stipulates behaviour
the birth mother agrees to undertake (e.g. undergoing tests, or having an abortion if foetus is
defective or avoid smoking and drinking). The commissioning couple and the birth mother
are often strangers. It is argued by many that payment simply for expenses and earnings and
not the service and surrender of custodial rights will entail calling the agreement non-
commercial. This medical procedure is legal in several countries including India where due to
excellent medical infrastructure, high international demand and ready availability of poor
surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to
by the emotionally charged and potentially offensive terms “wombs for rent”, “outsourced
pregnancies” or “baby farms7.

JUDICIAL APPROACH TOWARDS SURROGACY IN INDIA

With India fast emerging as a favoured destination for childless couples across the world,
commercial surrogacy raises a host of moral, ethical as well as legal issues. More recently,
even the Supreme Court had entered the debate. Hearing a petition filed by a German couple
(Jan Balaz and Susan Anna Lohlad) with regard to grant of Indian citizenship for their
surrogate twins, it made pertinent queries. The twins born to an Indian surrogate mother in
January 2008 were stateless citizens, having neither German nor Indian citizenship. The Jan
Balaz case was very controversial8. The German authorities had been steadfastly refusing
visas to Nikolas and Leonard (said twins) on the ground that the state law did not recognise
surrogacy as a means to parenthood. But finally agreed to provide the necessary documents

7
SURROGATE MOTHERHOOD:HISTORY AND CONCEPT.
8
Union of India and ors v. Jan Balaz and ors. LAWS(SC)-2015-10-121.

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after Balaz and his wife went through the inter-country adoption process supervised by
Central Adoption Resources Agency. The Indian government, which was refusing to grant
the toddlers Indian citizenship on the ground that they were surrogate children, also played its
part in arranging their flight home by agreeing to provide exit permits. The Supreme Court
also echoed concern about the absence of a law regulating surrogacy, so that there should not
be any repetition of such a case. The complicated case of Japanese baby Manji 9 born to an
Indian surrogate mother with IVF technology upon fertilisation of her Japanese parents’ eggs
and sperms in Tokyo and the embryo being implanted in Ahmadabad, triggered off complex
knotty issues. The Japanese biological parents divorced and the mother disowned the infant.
Under the Hindu Adoptions and Maintenance Act, 1956 a single father cannot adopt a girl
child and since he is only the biological father, the girl’s legitimacy will have to be proved.
The grandmother of the infant petitioned the Supreme Court challenging the directions given
by the Rajasthan High Court relating to production and custody of baby Manji Yamada. The
issues related to surrogacy remain complex. Even the Law Commission of India has
recommended to the Centre that legislation to regulate ART as well as the rights and
obligations of parties involved in surrogacy should be enacted. As of now, surrogacy
arrangements are governed by individual contracts within parties in question. Often
contentious concerns arise, especially those involving foreign couples. For many countries,
like Germany, do not recognise surrogacy, thus leading to legal complications. Still, as the
Supreme Court judgement in the Manji case proved, the legal environment in India remains
favourable to surrogacy. Adding to it the cost advantage that India has and surrogacy seems
to be thriving, particularly in Anand in Gujarat that has come to be known as India’s
surrogacy centre. The country that is becoming a hub of fertility tourism cannot afford to put
the interests of children as well as surrogate mother at risk. There is no law governing
surrogacy in India. There is only 126 page document regulating the technologies used. The
Indian Council of Medical Research (ICMR) issued National Guidelines for Accreditation,
Supervision and Regulation of ART clinics in India in 2005, but the guidelines are legally
non-binding. They are hazy on issues like the rights of the surrogate the minimum age of
surrogate, details about the contracts, informed consent, adoption requirements etc. The issue
of legal parentage has been particularly contentious. Moreover, many clinics were found to
be operating networks of professional surrogates and making profits in recruiting their
services. While different factors— ranging from patriarchy, poverty, lack of livelihoods, need
for biological child to stigmatisation of infertility— complicate situations on the ground,
9
Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518.

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debates on the issue tend to focus on more elementary questions. In India, in September 2000,
Central Ethics Committee on Human Research (CECHR) of the Indian Council of Medical
Research (ICMR) has come out with a statement of specific principles for assisted
reproductive technologies. In 2002, a Bill drafted by a 15—member team of experts headed
by Baidyanath Chakraborty in collaboration with the Indian Council for Medical Research
and National Academy of Medical Sciences was submitted to the Union Health and Law
Ministries on National Guidelines for Accreditation, Supervision and Regulation of Assisted
Reproductive Technologies (ART) Clinics in India. This document has drawn up guidelines
for the ethical practice of acceptable ART methods and for taking measures for setting up of
an independent body through legislation for accreditation, regulation and supervision of
infertility clinics in India, which was later, in 2005; released as a published document.
However, since these guidelines had no legal binding and the rules and regulations were not
mandatory, they were not strictly implemented, resulting in an absence of any form of
regulation.123 Recently ICMR and Ministry of Health and Family Welfare (MOHFW) have
come up with the draft Assisted Reproductive Technologies (Regulation) Bill & Rules
201010.

PRESENT LEGAL STANCE TOWARDS SURROGACY IN INDIA:

In India there are a few regulations governing the surrogacy procedure in India. The ART
Bills, the ICMR guidelines, the VISA-FRRO Regulations which is for regulating the foreign
couples who come for surrogacy in India. Also in the 228 th Law Commission of India Report,
2009 only altruistic surrogacy was to be allowed and not commercial surrogacy because the
surrogate mother would always be on a lower footing when compared to the intending
parents and the surrogate mother may get exploited emotionally and financially. By the
ICMR guidelines for the accreditation, supervision and regulation of ART clinics in India,
2005. In The Surrogacy (Regulation) Bill, 2016 it was stated that who could avail the
benefits. It included the married couple who have had 5 years of marriage minimum, have
had no child and they have had proven infertility. It also states the requirements of surrogate
mother.

10
Ibid.

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PROS AND CONS OF SURROGACY IN INDIA11:

Surrogacy in India is a hot topic right now. Intended parents are interested in the low costs of
international surrogacy, and many are considering a surrogate pregnancy in India.

THE PROS FOR SURROGACY IN INDIA:

The Cost
For those seeking a gestational surrogate pregnancy, who will be using their own eggs, the
number one incentive to surrogacy in India is the price. It would be silly to imply that there
was any other major reason for choosing to go through international surrogacy or surrogate
parenthood in India. The reason that intended parents go to India is 100% because of the cost,
quoted at $12,000-20,000.

The Experience
For those interested in gaining a different perspective of the world, and who enjoy traveling
and experiencing new cultures, a trip (or two or three) to India might be a nice refreshing
change in the midst of an emotional roller-coaster.

Helping another Family

When compared on a per capita basis, the amount of money a surrogate mother in India
receives is astronomical when compared to what a surrogate mother in America receives, all
while costing the intended parents less. Surrogate mothers in India receive approximately
$5,000 as their compensation, an amount typically equal to 10 years worth of salary.

CONS OF SURROGACY IN INDA:

The Cost
Many intended parents who have researched surrogacy in India have found that the initial
price is not always what it seems. Often, intended parents are hit with extra fees as the
surrogate pregnancy progresses, and they are in a situation where they have no choice but to
comply. Of course, this will vary greatly depending on what surrogacy agency you go
through. Also, don’t forget fees such as your transportation to and from India, more than
once. These expenses add up, fast. Many intended parents have reported that when the big
picture is looked at, the prices end up being quite comparable to a traditional surrogacy in
America.

11
http://information-on-surrogacy.com/surrogacy-in-india.

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Egg Donor Difficulties
India deals with gestational surrogacy, primarily when the intended parents are both the
biological parents of the child. If an egg donor is needed, this can prove difficult.

Some Indian agencies do not deal with egg donors whatsoever, others deal only with Indian
egg donors, and a few will work with an egg donor that you bring along, or hand carry eggs
on a flight. Whichever method is used, adding an egg donor to a surrogate pregnancy in India
is a further layer of complication.

Third World Country

Like it or not, India is still a third-world country. While this may not affect the quality of the
medical tourism industry, it does affect the rest of the country. This means that some
Americans may not be comfortable visiting the country, and may be even less comfortable
knowing that their child is there without them.

Court System
India’s court system is unlike America’s, and if a legal issue were to arise, the intended
parents may find themselves on unsure footing, without knowing quite what to expect.
Surrogacy is still very new in India, and as such, anything is possible. Intended parents are
required to adopt their biological children in India.

EMOTIONAL DETACHMENT
Many intended parents think of their surrogate mother as a close friend or family member.
They want to be there for appointments, want to call and see how she’s doing, and want to
experience their surrogate pregnancy as much as possible. With surrogacy in India there is a
definite emotional detachment to the entire process. Often, the intended parents and surrogate
mother can only communicate via a translator. They may have met only once, or in some
situations, not at all. There is a cultural difference. And the intended parents cannot
practically make it to appointments and ultrasounds. Some intended parents may question
how they will explain the woman who gave birth to their child to their child when he is older.

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