THE LAWS PERTAINING TO SURROGACY, IT’S

CRITICAL ANALYSIS IN INDIA

Submitted by :

BATCH : 2017-22
DIVISION : A
NAME : ISHITA RAI
PRN : 17010224038

Of Symbiosis Law School, Noida

Symbiosis International University, Pune

In
August, 2017

Under the guidance of

Ms. Meera Mathew
 CERTIFICATE

The project entitled “The laws pertaining to surrogacy, it’s critical analysis in India“
submitted to the Symbiosis Law School, NOIDA for Jurisprudence as part of
Internal assessment is based on my original work carried out under the guidance of
Ms. Meera Mathew from July to August. The research work has not been submitted
elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the project has been
duly acknowledged.
I understand that I myself could be held responsible and accountable for plagiarism,
if any, detected later on.

Signature of the candidate

Date:
 ACKNOWLEDGEMENT
I would like to take this opportunity to express our profound gratitude and deep
regard to my project guide, Ms. Meera Mathew, for her exemplary guidance,
valuable feedback and constant encouragement throughout the duration of the
project. Her valuable suggestions were of immense help throughout my project
work. Her perceptive criticism kept me working to make this project in a much
better way. Working under her was an extremely knowledgeable experience for me.

I would also like to thank our SLS, Noida’s Library Incharge, Mr. Shriram Sharma,
who helped me in finding our book and research material related to the project. I
would like to thank my parents and friends, who helped and supported me
throughout the making of this project.

This project would not have been a reality if all the people mentioned above would
not have helped me.
 INDEX
Topic

1. Introduction

2. Aims and Objectives

3. Research Question :1

4. Research Question :2

5. Conclusion

6. Bibliography
 INTRODUCTION
Surrogacy is a method or an agreement according to which a woman agrees to carry
a pregnancy as a substitute for another woman for the purpose of gestating and
giving birth to a child for another woman to bring him up as her own child. There
are two types of surrogacy ,one in which payment is made to the surrogate mother
which is called commercial surrogacy and the other is where there is no monetary
value is involved , it is called altruistic surrogacy.

Intended parents may seek a surrogacy arrangement when the mother is unable to
conceive, pregnancy risks present an unacceptable danger to the mother's health or
there is a same sex couple who wants to have their own children. It is an alternative
to adoption which allows one or both the parents to be genetically connected to the
child. The surrogate mother can be the child's biological mother (which is the
traditional form of surrogacy) or she can be implanted with someone else's fertilized
egg (which is known as gestational surrogacy).

There are a number of emotional, legal, ethical and social issues which the surrogate
mother and the contracting couple must pay heed to when they decide to put
themselves into a surrogacy agreement. While there is a positive side to surrogacy as
childless couples can have a child of their own and have their family which is the
basis of the society but on the other hand there is a negative side too as when the
payment of services of the surrogate mother is considered, the process becomes
questionable.

There are different laws in different countries concerning the process of surrogacy
and protecting the rights of both the surrogate mother and the contracting couple
involved in it. In India as of now commercial surrogacy is banned but altruistic
surrogacy is allowed.
 AIMS AND OBJECTIVES
The researcher wants to know the laws pertaining to surrogacy and how the citizens
of India abide to it. She wants to know it’s implications in the Indian society and the
present trend of surrogacy in India. She wants to know how the Indian society reacts
to the process of surrogacy, so that a lucid conclusion can come out at the end of the
research project.
 RESEARCH QUESTION: 1

Whether the Surrogacy (Regulation) Bill, 2016 justifies commercial

surrogacy? How is this Bill different from ART (Assisted
Reproductive Technology) Bill, 2010?
India has emerged as a surrogacy hub for couples from around the world and there
have been incidents concerning unethical practices, exploitation of the surrogate
mothers, abandonment of children born out of surrogacy and rackets of
intermediaries importing embryos and gametes. The 228th Law Commission report
of India had also recommended for banning commercial surrogacy and allowing
altruistic surrogacy to the needy Indian citizens.

The Surrogacy (Regulation) Bill, 2016 states

No person, organisation, surrogacy clinic, laboratory or clinical establishment of any

kind shall -:

(a) undertake commercial surrogacy, provide commercial surrogacy or its related

component procedures or services in any form or run a racket or an organised group
to empanel or select surrogate mothers or use individual brokers or intermediaries to
arrange for surrogate mothers and for surrogacy procedures, at such clinics,
laboratories or at any other place;

The Hon’ble Supreme Court of India in the case of Baby Manji Yamada v. Union of
India and Anr.1 has upheld the legality of commercial surrogacy in India. In Jan
Balaz v Union of India2, the Gujarat High Court conferred Indian citizenship on two
twin babies fathered through compensated surrogacy by a German national in Anand
district. The court observed: "We are primarily concerned with the rights of two
newborn, innocent babies, much more than the rights of the biological parents,
surrogate mother, or the donor of the ova. Emotional and legal relationship of the
babies with the surrogate mother and the donor of the ova is also of vital
importance." The court considered the surrogacy laws of countries like Ukraine,
Japan, and the United States.

The Surrogacy (Regulation) Bill, 2016 does not allow commercial surrogacy in
India. In the era of human rights jurisprudence, one can always know his or her right
to use surrogacy and be potential parents or parent as it is their Right to personal
liberty, Right to procreation, Right to privacy, Right to form family and Right to
choice. The ban on commercial surrogacy is because there is a chance of

1
 [2008] INSC 1656
2
AIR 2010 Guj21
 exploitation of the surrogate mother. But there are many things which have a chance
of exploitation so it does not mean that we ban or prohibit it but a stronger
legislation should be implemented so there are stringent rules to follow for the
people. Therefore, the ban on commercial surrogacy on the ground of exploitation is
irrational and is direct encroachment on the rights of couples to form a family and
also the rights of the surrogate mother of her right to choice. Further, the enjoyment
of benefits of scientific and technological progress and its application is recognized
as a human right and is included in the Universal Declaration of Human Rights
(Article 27) and the International Covenant on Economic, Social and Cultural Rights
(Article 15), etc.

One of the blessings of the modern day advancements in medical science and
technology is the development of Assisted Human Reproductive Technologies
which includes surrogacy. These technologies are helpful to infertile couples as well
as other individuals who wish to have children through the process of surrogacy.
Assisted Reproductive Technologies (ARTs) are non-coital methods of having
children including in-vitro fertilisation, artificial insemination and surrogacy. In-
vitro fertilisation of embryos refers to embryos whose fertilisation, or any other
process by which the embryo was created, began outside the human body.

Since there is a right which allows an individual to enjoy the benefits of scientific
and technological progress, so definitely individuals can take the benefit of these
technologies for begetting a child. Any restriction on such right should be
considered as a violation of his or her right to enjoy the benefits of scientific and
technological progress. Further the ban on commercial surrogacy will adversely
affect the interests and rights of prospective surrogate mothers. Most of the women
who agree to act as a surrogate, is due to their financial needs. The proposed ban on
commercial surrogacy will prevent those women from acting as a surrogate and
thereby earning the required money. It may force such women to do other illegal
acts such as prostitution or theft for finding the money which they would do
forcefully just in order to earn money.

There are many points of differences in Surrogacy (Regulation) Bill, 2016 and ART
(Assisted Reproductive Technologies) Bill, 2010, which are as follows -:

 The present legislation ( The Surrogacy Bill 2016) entitles only Indian citizens to
avail of surrogacy, whereas foreigners, NRI’s and PIOs are not allowed o seek
surrogacy in India, whereas earlier it happened.
 Homosexuals, single parents and live-in couples are also kept out of the purview of
surrogacy. Besides, couples who already have children will not be allowed to go in
for surrogacy, they would be free to adopt a child under a separate law. All these
restrictions were not the ART (Assisted Reproductive Technologies) Bill, 2010.
 The Surrogacy (Regulation) Bill, 2016 allows surrogacy to only legally married
couples after five years of marriage and with a certificate of doctor stating that they
are medically unfit to produce a child. The ART (Assisted Reproductive
 Technologies) Bill, 2010 did not had these kind of restrictions on married couples
who opted for the process of surrogacy.
 Women within the age group of 23 years to 50 years and men aged between 26 to 55
years are only eligible to go in for surrogacy. The age brackets were not there in the
ART Bill.
 In an attempt to check commercial exploitation and middlemen, the surrogate
mother can only be a close relative, like a sister or sister-in-law who is married and
has at least one healthy biological child. There was restriction on the choice of
surrogate mother on the ART Bill.
 A surrogate can only be once a surrogate mother in her lifetime and should have her
own healthy child. There were no rules on how many times a woman can be a
surrogate mother in the ART Bill.
 RESEARCH QUESTION: 2
Whether the concept of altruistic surrogacy warrants discrimination
of single parent, live in couples and homosexual couples?
The term “altruistic surrogacy” refers to those arrangements in which the surrogate
does not receive compensation for her services beyond reimbursement for medical
costs and other reasonable pregnancy-related expenses. Many of these arrangements
are between family members or close friends and are completed as independent
surrogacy.

The current legislation in India is Surrogacy (Regulation) Bill, 2016. According to

this Bill, homosexuals, single parents and live-in couples are kept out of the purview
of surrogacy. They are not even allowed altruistic surrogacy. India has emerged as a
surrogacy hub for couples from different countries. There have been incidents of
unethical practices, exploitation of surrogate mothers and abandonment of children
born out of surrogacy. So, it allows surrogacy only for legally married couples after
five years of marriage if they do not have child of their own.

According to the researcher the concept of altruistic surrogacy warrants

discrimination of single parent, live in couples and homosexual couples. It is the
right of an individual to lead a life of their own choice.

A standout amongst the most quarrelsome purposes of the bill is its unmitigated
restriction on surrogacy privileges to gay couples. This is the first occasion when the
government's straightforward homophobia has moved into the open. Inspite of the
fact that homosexuality has always been specified in different Indian writings.
Presently, despite the fact that this boycott could be understood as unimportant after
of the law Section 377 (against "unnatural" intercourse), this would just bode well if
heterosexual couples additionally abusing the segment were denied surrogacy rights.
Since there is no real way to decisively discover, this is clearly a refusal of equity to
the queer group. Besides, since as indicated by marriage laws just heterosexual
couples are permitted to get hitched; the boycott of surrogacy to gay couples implies
two extremely disheartening things: one, since this is the first run through, there has
been an unequivocal expression of "homosexuality", this one uncovers that the
government is not in any case open to the thought of gay couples or homosexuality;
and two, the legislature is nearly expressing that the queer group is not welcomed in
any case and there is sign of a legislation which will give gay marriages a valid tag.

The Surrogacy (Regulation) Bill warrants discrimination even to single parents.

Recently two Bollywood celebrities Tushaar Kapoor and Karan Johar have had
children through the process of surrogacy, but now no single man or woman would
have the privilege of becoming single parent through the process of surrogacy not
even altruistic surrogacy. The bar on single parents and others to have children
through surrogacy is violative of Article 14 of the Indian Constitution which
provides equality before law and equal protection. The government of India has
actually snatched the rights from the people who had desires to become parents by
having their own children but were not ready to share a relationship for becoming
parents. This shows that the Indian government thinks that single parents are not
capable of bringing up children alone, in spite of, the fact that there are children who
have been very well brought up by single parents.

The Surrogacy (Regulation) Bill also warrants discrimination to live in couples. It

does not give them the rights to become parents through the process of altruistic
surrogacy. The government’s view in this is that there is a great sense of uncertainity
in these kinds of relationships (live in couples) like maybe there is a possibility of
the couple getting separated in the middle of the process of surrogacy, then what will
happen to the the unborn child and the carrier of the baby i.e. the surrogate mother.
There is also the problem of getting the family name and respect for the child as
there are cases of the child, who is born to live-in couples does get the share in the
ancestral property of his or her family. As per the Indian societal norms the baby
born to the live-in couples is not considered legitimate as live-in relationships are
not accepted in India. So, according to that the child born to those couples is
considered illegitimate and the society taunts them throughout their lifetime and they
are never in their life given a valid status, which they deserve as human beings.

According to the Greek philosophy law is constructed as higher moral law order,
righteousness and salvation. The philosophy of morality, justice, ethics, right reason,
good conduct, equality, liberty, freedom, social justice and democracy, all have its
derivations from here. Linking the Greek philosophy to the Surrogacy (Regulation)
Bill, 2016 and its view on altruistic surrogacy of not allowing homosexual couples,
single parents and live-in couples. Going by the morals set by the World society as a
whole, homosexual couples are not accepted, only a handful of countries in the huge
world have legalised their marriages, so they are not allowed to have children even
through the process of altruistic surrogacy. Single parents being denied altruistic
surrogacy is not at all accepted as their equality, liberty and freedom is being
infringed. As India is a democratic country and the decision or legislations of the
government go by the mindset of the majority of the Indian mass, and according to
them live-in relationships are not at all accepted and so the child born to them even
through the process of altruistic surrogacy will not be accepted. It is against moral
ethics, good conduct and social justice.

Viewing the collective will theory of Immanuel Kant (1724-1804), a German

philosopher, in the light of how the concept of altruistic surrogacy warrants
discrimination of homosexual couples, single parents and live-in couples. The
present legislation which is prepared by the Lok Sabha i.e. The Surrogacy
(Regulation) Bill, 2016 is prepared considering mindsets, values and traditions of the
majority of the people of India. It has been made according to the collective will of
the people of the state. The principle of Innate Relationship states that”an action is
right only if it co-exists with each and every man’s free will according to the
universal law”. Homosexual couples, single parents and live-in couples have been
denied to have children through the process of surrogacy (not even altruistic
surrogacy) as it was the collective will or the majority wish of the people of India to
not allow them to have children because homosexual couples are not considered to
be in a natural relationship with each other, so they cannot have children. Single
parents cannot have children through the process of surrogacy because the society
thinks that a single parent cannot bring up a child well as both the two parents will.
Live-in couples are banned to have children through surrogacy because according to
the collective mindset of the people there is uncertainity in the relationship of these
couples and they cannot give their new born a family name. So, the concept of
altruistic surrogacy warrants discrimination to homosexual couples, single parents
and live-in couples.
 CONCLUSION
The foremost reason, why the surrogacy laws in India were suggested to be
‘amended’ by the health ministry was the drastic increase in the number of cases of
commercial surrogacy in India. The health minister said “India has emerged as a
surrogacy hub for couples from various countries”, which has significantly increased
into unethical practices, putting the surrogate mother and the new born, both at risk.
However, rather than checking and taking steps that could stop the growing industry
the government decided to ban it, rather it should had made the rules more stringent
and implemented those rules and regulations with a heavy hand among the people of
India.

According to the researcher, not only heterosexual married Indian couples with
proven infertility should be allowed for surrogacy but also homosexual couples,
single men and women should have a right to have a surrogate child as it is their
fundamental right to equality and choice, under the Indian Constitution. Also, the
clause that a close relative only can be approached for surrogate mother, is in a way
not correct, because it makes it difficult to maintain the secrecy and leads to
detrimental effect on relationships. Also the number of women who had their sole
earning by becoming a surrogate mother will now be forced to do some odd jobs,
against their wills.

The restriction that only after five years of marriage, the couple can be allowed to
apply for surrogacy is baseless, as it should be the choice and free will of the couple
themselves that when to apply for surrogacy. There should be no ban on surrogacy
for single parents and homosexual couples as they also have a right to live the way
they want, they cannot be discriminated on the way they want to lead their life.
 BIBLIOGRAPHY

 Bix, B. Jurisprudece: Theory and Context. Sweet & Maxwell.

 Freeman, M. Introduction to Jurisprudence. Sweet & Maxwell.

 Paranjape, N. Jurisprudence and Legal Theory. Central Law Agency.

 Penner, J. M. Jurisprudence

 The Constitution of India

 The Surrogacy (Regulation) Bill,2016.

 www.outlookindia.com
 Manupatra (Legal Database)