Smt. Sowmya.

K
Asst.Prof. in Sarada Vilas Law College
K.M.Puram, Mysore
Email id : k.sowmya62@yahoo.com
Mobile No: 9964199375
Abstract
Surrogacy :a legal and social overview

In recent years, the cases of child births through the use of advanced medical
technologies in surrogacy have been increasing. Not only common people but also celebrities are
taking recourse to assisted reproductive technologies to become parents. As the cost in our
country is lower in comparison to other countries, even foreign couples are coming to India for
this purpose. In view of ever larger number of people taking recourse to this new technology, a
number of legal issues have arisen which needs urgent attention. Surrogacy is an alternative to
other fertility treatments in a bid to expand the industry and make greater profits, and fears loom that
surrogacy could spin out of control. In developing country like India where poverty is playing an
important factor, women may be compelled by their husbands of in-laws to become surrogates. The
objectives of this paper are as follows:
- To know about the meaning of Surrogacy.
- To know how Modern Surrogacy Come About?
- To know the recent Surrogate History
- To know the status of surrogacy in India
- To know the relevant Landmark judgments on surrogacy
- To know about the social and legal issues
- To know about the reason for the downcast of surrogacy in India
- To know about the status of surrogacy in other countries other than India
 Surrogacy :a legal and social overview
Smt. Sowmya. K
Asst.Prof. in Sarada Vilas Law College
K.M.Puram, Mysore
Email id : k.sowmya62@yahoo.com
Mobile No: 9964199375

INTRODUCTION

A Jewish proverb states that “God could not be everywhere so he made mothers.” 2A
pious expression of a mother is given to a female when she gives birth to a child. Due to all
worldly changes happening on earth due to climatic changes, global warming and stuff alike, it
has taken a toll on human body. Nowadays many women are found who suffer from the problem
of infertility. Over a couple of centuries the desire to beget a child for an infertile couple was
being satisfied by adoption. But modern sciences has provided new opportunities or options we
can say to overcome adoption, that’s surrogacy which has resulted as a boon for those childless
couples who want their own child. Surrogacy is a practice whereby a woman agrees to become
pregnant by implanted embryo or medically inseminated sperm and bear a child for another
person or persons, to whom she intends to transfer the child’s care at, or shortly after, birth and
in return receives the compensation for carrying and delivering the child.

OBJECTIVES OF THE STUDY

The objectives of this paper are as follows:

1
www.news.com
2
www.worldofproverbs.com
 - To know about the meaning of Surrogacy.
- To know how history of Modern Surrogacy Come About?
- To know the status of surrogacy in India
- To know the relevant Landmark judgments on surrogacy
- To know about the social and legal issues
- To know about the reason for the downcast of surrogacy in India
- To know about the status of surrogacy in other countries other than India

MEANING OF SURROGACY

Surrogacy can be defined as “a woman carrying a pregnancy and giving birth to a baby
to another woman”. This arrangement can be voluntary and gratuitous, as well as,
paid as any commercial transaction according to the agreement between the commissioning
couple and the woman who agrees to bear the child. Another type of surrogacy is called altruistic
surrogacy, where the surrogate receives no financial reward for bearing or relinquishing the
3
child. In India, surrogacy are permitted as per law. Commercial surrogacy is legal in India,
Ukraine, and California while it is illegal in England, many states of United States, and in
Australia, which recognize only altruistic surrogacy. In contrast, countries like Germany,
Sweden, Norway, and Italy do not recognize any surrogacy agreements. India has become a
favorite destination of fertility tourism.4

In recent years, the cases of child births through the use of advanced medical technologies in
surrogacy have been increasing. Not only common people but also celebrities are taking recourse
to assisted reproductive technologies to become parents. As the cost in our country is lower in
comparison to other countries, even foreign couples are coming to India for this purpose. In view
of ever larger number of people taking recourse to this new technology, a number of legal issues
have arisen which needs urgent attention. Surrogacy is an alternative to other fertility treatments
in a bid to expand the industry and make greater profits, and fears loom that surrogacy could spin
out of control. In developing country like India where poverty is playing an important factor,
women may be compelled by their husbands of in-laws to become surrogates.

3
http://wscpedia.org
4
www.ncbi.nlm.nih.go
HISTORY OF MODERN SURROGACY

The first “official” legal surrogacy agreement was enacted in the mid-1970 with the child
who was referred to as Baby M. The same lawyer who brokered this agreement went on to found
the Infertility Centre, a company that arranges hundreds of surrogate births every year. During
that same time frame, surrogacy made the national and international news with the world’s first
“test tube” baby, Louise Joy Brown. Although this was not technically a surrogate mother
situation, this event did pave the way towards what is now known as gestational surrogacy – a
practice that is used today for implanting both sperm and egg in a laboratory to later be placed
into the surrogate mother’s uterus. It wasn’t until 1980 though, that the first paid traditional
surrogacy arrangement was conducted. In this case, the surrogate mother, a 37-year old woman,
was paid $10,000 for the successful delivery of a baby boy. It is for this reason that even though
surrogacy can be a very positive and rewarding experience for both the surrogate mother and the
biological parents, it is also important for those who intend to become surrogate mothers to be
not just physically prepared, but emotionally as well. Not long afterwards, in 1983, was the first
successful pregnancy done via egg donation. In this case, a woman was able to give birth to a
baby through the use of eggs that were donated from another. It was this event that later led to
the first gestational surrogacy in 1985.5

Over the years, surrogacy has become a much more popular process and procedure than it was
just a few decades ago. In fact, over the past dozen years, certain events have taken place that has
made surrogacy history. For example, in 2001 the oldest surrogate mother at that time gave birth
to her own grandchild, while in 2005; a 58-year old surrogate mother gave birth to her own twin
granddaughters.

KINDS OF SURROGACY

The followings are the different kinds of Surrogacy

1. Natural (Traditional) Surrogacy:      

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www.modernfamilysurrogacy.com/page/surrogacy_history
In traditional surrogacy the surrogate is pregnant with her own biological child, but this child
was conceived with the intention of relinquishing the child to be raised by others such as the
biological father and possibly his spouse or partner and thus the child that results is genetically
related to the Surrogate mother. The child may be conceived via sexual intercourse, home
artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine
insemination), or ICI (intracervical insemination), which is performed at a fertility clinic. 
2. Gestational Surrogacy:          
In gestational surrogacy, a surrogate is only a carrier/female host and is not genetically or
biologically related to the child. The Surrogate is implanted with an embryo that is not her own,
and becomes pregnant with a child to which she is not the biological mother. After birth, the
surrogate relinquishes the child to the biological mother and/or father to raise, or to the adoptive
parent(s) (in which case, the embryo would have been a donated embryo). The surrogate mother
may be called a gestational carrier.
 
3.   Commercial Surrogacy:        
Commercial Surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a
child to maturity in her womb and is usually resorted to by higher income infertile couples who
can afford the cost involved or people who save or borrow in order to complete their dream of
being parents. This procedure is legal in several countries including India. Commercial surrogacy
is also known as ‘wombs for rent’, outsourced pregnancies’ or ‘baby farms’.
 
4. Altruistic Surrogacy:   
Altruistic surrogacy is a situation where the surrogate receives no financial reward for her
pregnancy or the relinquishment of the child (although usually all expenses related to the
pregnancy and birth are paid by the intended parents such as medical expenses, maternity
clothing, accommodation, diet and other related expenses).6
 
LEGAL STATUS OF SURROGACY IN INDIA

The supreme court of India by virtue of case, “Baby Manji vs. Union Of India”, has
made commercial surrogacy legalized in India. In 2008, the Supreme Court of India in the
6
www.growinggenerations.com/.../understanding-different-types-of-surro...
Manji's case (Japanese Baby) has held that commercial surrogacy is permitted in India with a
direction to the Legislature to pass an appropriate Law governing Surrogacy in India. India is
immerging as a leader in international surrogacy. Surrogacy in India is much simpler and cost
effective than anywhere else in the world. So India is emerging as a leader in international
surrogacy and a sought after destination in surrogacy-related fertility tourism. Indian surrogates
have been increasingly popular with fertile couples in industrialized nations because of the
relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the
pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients
roughly a third of the price compared with going through the procedure in the UK.

At present the Surrogacy Contract between the parties and the Assisted Reproductive Technique
(ART) Clinics guidelines are the guiding force. The law commission of India has specifically
reviewed the Surrogacy Law keeping in mind that in India that India is an International
Surrogacy destination.
Assisted Reproductive Bill 2010 Considering the growing number of surrogacy cases in
India and the challenges that the surrogacy would face in future, the government of India decided
to come up with a law which would govern the surrogacy and ART in India. A committee of
experts was setup and the said committee has now submitted a draft of the proposed bill to the
government of India. The said bill is still pending with government and has not yet been
presented in the parliament. The purposed draft namely ‘Assisted Reproductive Technologies’
bill 2010 has taken into consideration various aspects of surrogacy and has built in safe guards
for surrogate mothers. 7

The some of the salient features of ART Bill 2010 are as under:

1. The process of surrogacy and giving the womb on rent, as it is popularly called is
completely legal in India. Charging financial reimbursement for carrying the baby of an
Indian or foreign couple would be absolutely legal.
2. The bill defines the term ‘couple’ as two people living together and a sexual relationship
that is legal according to Indian legislation. Since court has already given verdict in
favour of homosexuality, a gay or lesbian couple can also go for surrogacy and it will be
termed legal .
7
https://legalbloc.com/surrogacy-in-india-legal-and-social-issues
 3. The age of surrogate mother has to be 21 to 35. The maximum number of ‘live births’
allowed for her would be maximum 5, including her own children. The number of
donations would not be greater than six in the entire lifetime.
4. In the case of single parent opting for surrogacy, the baby will be legitimate child for him
or her.
5. In case the intended parents are engaged in live in relationship then the child would be
legitimate child of both.
6. Intended couple would bear the complete cost of pregnancy and pay remuneration to the
surrogate mother. They may give a contractual obligation under Indian legislation.
7. In case of the intended couple being a foreign national, they have to submit the surrogacy
policy of their country and a certificate regarding nationality of the surrogate child post
birth. They also have to nominate a local guardian to take care of surrogate mother during
pregnancy.
8. Government certified ART banks to store complete details of surrogates and donors.
9. The certification to ART banks would be given by state boards. This independent body
would have authority to register, maintain and monitor the functioning.
10. The determination of the sex of the baby and ‘selective child birth’ through surrogacy is
illegal.
11. Surrogacy as medium of pregnancy and child birth would be considered as legal for the
couples otherwise, proved to be incapable of give birth to a child and it is not a
‘convenient mode’ of having a baby without readiness of beating pain of pregnancy and
delivery.
12. Commercial use of surrogacy for cloning or mass production would be strictly
prohibited.8

LANDMARK JUDGEMENTS ON SURROGACY IN INDIA

 Baby Manji Yamada vs. Union of India9:

In this case a Japanese couple, Dr. Ikufumi Yamada and his wife, wished to have a baby
and entered into a surrogacy contract with an Indian woman in Anand, a city in the state of

8
aayushsurrogacyindia.com
9
[2008] INSC 1656 (29 September 2008)
 Gujarat where this practice was pioneered. The couple went through matrimonial discord but
the father still insisted on having custody of the child. Under Indian Lawa single father
cannot adopt a girl child. He sent his mother in his stead and a petition was filed before the
Supreme Court. The Government seemed to be helpless in this matter as there were no laws
governing the effect of surrogacy. The Apex Court directed that the National Commission for
Protection of Child Rights was the apt body to deal with this issue. Justice Arijit Pasayat and
Justice Mukundakan Sharma of the Supreme Court held that the father was the genetic father
of the child and he was given custodial rights of the child. The Government was instructed to
issue the passport to Manaji Yamada and she returned with her grand –mother. Most
importantly, the Supreme Court held that the Surrogacy Agreement was valid in India. What
is most noticeable in the Baby Manji Yamada case is that the stance of the Court was not
only pro-surrogacy it was also extremely pro-contract. The contract was held to be valid and
therefore of most importance even though what the Court granted went against a particular
legislation in the country.

 Jan Balaz v. Anand Municipality10:

In this case a German couple entered into a contract with a surrogate mother named
Marthaben Immanuel Khrishti. Twin children were born. The German couple was working in
the United Kingdom and the children required Indian passports to travel. Since their
citizenship was being litigated in the courts the passport authorities withheld the passports.
Germany, the parent state of the German couple did not recognize surrogacy. The Supreme
Court denied the passports but granted an exit permit to the children and the German
authorities decided to give the couple an opportunity to adopt the children and fight for their
rights. The Supreme Court of India also recommended the emergent legislation of a law on
surrogacy. The Bench headed by Justice G.S. Singhvi and Justice C.K. Prasad said that no
surrogate child should undergo the difficulties faced by Nicolas and Leonard who were
already two years of age by the time this decision was made and had still not been granted
citizenship in any country. It is clear that in the case of Jan Balaz the contract proved to be
insufficient in demarcating the rights of the parties and it also brought out residual issues
such as citizenship and identity that are matters of vital importance to the children but do not

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AIR2010Guj21
 find place in the surrogacy agreement. In both the above case laws the courts take a very pro-
contract stand possibly as a way of encouraging commercial surrogacy, which contributes
millions of dollars to India’s economy.

STATUS OF SURROGACY OTHER THAN INDIA

The legal aspects surrounding surrogacy are complex, diverse and mostly unsettled. In most
of the countries world over , the woman giving birth to a child is considered as the Child's legal
mother. However, in very few countries, the Intended Parents are be recognized as the legal
parents from birth by the virtue of the fact that the Surrogate has contracted to give the birth of
the Child for the commissioned Parents. India is one country amongst the few, which recognize
the Intended/ Commissioning Parent/s as the legal parents. Many states now issue pre-birth
orders through the courts placing the name(s) of the intended parent(s) on the birth certificate
from the start.
Australia 
In all the states of Australia, the surrogate mother is regarded/considered by the law to be the
legal mother of the child and any surrogacy agreement giving custody to others is void and
unenforceable in the courts of Law. In addition in all states and the Australian Capital Territory
arranging commercial surrogacy is a criminal offence, although the Northern Territory has no
legislation governing surrogacy at all and there are seems no near future plans to introduce laws
on surrogacy into the NT Legislative Assembly.
 Usually couples who make surrogacy arrangements in Australia must adopt the child rather than
being recognized as birth parents, particularly if the surrogate mother is married. After the
announcement, Victoria changed their legislation since January 1st, 2010, under the Assisted
Reproductive Treatment Act, 2008, to make altruistic surrogacy within the state legal, however
commercial surrogacy is still illegal.
 Since June 1st, 2010 in Queensland, altruistic surrogacy became legal under the Surrogacy Act,
2010. Recently North South Wales (NSW) has come up with Surrogacy Bill, with it being passed
by the Legislation but the Proclamation of the same is yet to take effect and it seems that the
same will happen by Feburary, 2011 thereby prohibiting commercial surrogacy and making
Altruistic Surrogacy the Law of the day.
 Canada
Commercial Surrogacy is prohibited under the Assisted Human Reproduction Act, 2004.
Altruistic surrogacy remains legal. In the province of Quebec, contracts that involve surrogacy
are unenforceable.
France
 In France, since 1994 any surrogacy arrangement whether it is commercial or altruistic is illegal,
unlawful and prohibited by the law.
Hungary
 Commercial surrogacy is illegal in Hungary.
Israel
 Israel the first country in the world to implement a form of state-controlled surrogacy in which
each and every contract must be approved directly by the state. In March 1996, the Israeli
government legalized gestational surrogacy under the "Embryo Carrying Agreements Law."
Surrogacy arrangements are permitted only to Israeli citizens who share the same religion.
Surrogates must be single, widowed or divorced and only infertile heterosexual couples are
allowed to hire surrogates. Due to the numerous restrictions on surrogacy under Israeli law, the
Israeli intended parents have turned to International Surrogacy. India is the preferred destination
because of its low costs. Then Intended Parents also turn to US surrogates where an added bonus
is an automatic US citizenship for the newborn.
Japan
 In March 2008, the Science Council of Japan proposed a ban on surrogacy and said that doctors,
agents and their clients should be punished for commercial surrogacy arrangements.
Netherlands and Belgium
 Commercial surrogacy is illegal in Belgium and the Netherlands.
United Kingdom
 Surrogacy arrangements have been legal in the United Kingdom since 2009. Whilst it is illegal in
the UK to pay more than expenses for a surrogacy, the relationship can be recognized under
Section 30 of the Human Fertilization and Embryology Act, 1990 under which a court may make
parental orders similar to adoption orders. How this came about is one of those occasions when
an ordinary person can change the law.
 United States
 Many states have their own state laws written regarding the legality of surrogate parenting. It is
most common for surrogates to reside in Florida and California due to the surrogacy-
accommodating laws in these states. With the accommodating laws of the State of California and
the long overseas deployments of husbands, wives have found surrogacy to be a means to
supplement military incomes and to provide a needed service. It is illegal to hire a surrogate in
New York, and even embryonic transfers may not be done in New York. At this point, the laws
surrounding .11

SOCIAL ISSUES

 New reproductive technology claim to help human beings through creative

interventions that reduce suffering and have the potential to transform the society.
 The commercialization of surrogacy however creates several social conflicts
rather than resolving a few.
 It generates the family pressure on pure women to offer their wombs for a price.
 The economic advantage is the main criteria behind going for surrogacy. Majority
of the women becoming surrogates are extremely vulnerable due to poverty, lack
of financial resources, low educational levels. For them the financial gain is the
key factor. This makes their economic exploitation much easier for the agents for
commissioning parents.
 The surrogates often face the dilemma that being a surrogates is socially
unacceptable when they frankly accept monetary consideration. So rather than tell
their neighbors that they gave away their child, they tell them that the baby died.
 As the surrogacy involves implantation of multiple fetuses, the unwanted fetus is
aborted during the course of development. The misuse of PNDT in the process
can eliminate the female foetus resulting into imbalance of sex ratio in the
country.
 In some cases the commissioning parents have refused to accept the child with the
deformity. Baby Manji’s case as there was divorce between the commissioning
couple the problem arose as to the custody of the new born baby.

11
https://en.wikipedia.org/wiki/Surrogacy_laws_by_country
  Confusion also exists where a surrogate mother fails to take standard care and
precaution during pregnancy as a result of which harm is caused to the foetus.
 Surrogacy can also affect the children’s perception of the values and integrity of
their family.
 Secrecy and anonymity create a negative environment that affects human relations
within and outside families.
 It also involves the issues of children’s right to information about the identity of
their parents.
 Commercialization of surrogacy creates several social conflicts. Given the
extreme vulnerability, one-third of the Indian women due to poverty, exclusion
from and marginalization in labour and job markets, patriarchal social and family
structures and low educational levels, the financial gain through surrogacy
become a key push factor. 12

DOWNCAST OF SURROGACY

 In a developing country like India where still poverty is a major concern the poorer
husbands are driven to direct their wife for surrogacy as an income generating option.
 Pregnancy affects the woman’s health and one cannot know all the long-term
consequences of repeated pregnancies.
 Careful consideration must be given to the medical, emotional, legal and practical
issues, and to the implications of surrendering the child at birth.
 Thought must also be given to the effect on any existing children, the potential
surrogate mothers partner, family and friends.
 In case of divorce of intended parents before the completion of surrogacy the
custody of child remains a question mark. Complicated situation arises when both
parties refuse to take custody of child specifically when the child is born abnormal.
 Care should be taken that the surrogacy should be resorted by those couples who are
facing medical unfitness and not for cosmetic purpose.
12
By David R. Bromham
  Proper laws should be framed in order to protect for interest of surrogate mother and
commissioning parents.
 A surrogacy arrangement should provide for financial support for surrogate child in
the event of death of commissioning couple or individual before delivery of the child,
or divorce between the intended parents and subsequent willingness of none to take
delivery of the child13.

CONCLUSION

Every act cannot be counted in terms of money; the moral and ethical issues are involved
and well thought-out while the commission of every act, then isn’t it is eccentric, that our
legislature is ignoring moral and ethical aspects, while drafting the ART bill: which indirectly
commercializes surrogacy. We aim that our legislature passes a law which caters the need of the
public at large and which is beneficial for all. There should be no law, which degrades the status
of any gender. At the end, a good law is the one, which apart from economical and financial
issues caters the ethical and moral sides of the society also.

BIBLIOGRAPHY

 http://www.surrogacylawsindia.com/index_inner.php
 www.surrogatemothers.org
 www.indiaparenting.com
 www.idealfertility.com
 www.academia.edu
 www.circlesurrogacy.com
 www.thehindu.com
 www.surrogacyclinics.com

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