CHAPTER 1

INTRODUCTION

Motherhood plays a very important role in social life. It is obligatory to be

a mother and not only that but to be a mother of sons1. Original sin in the Garden

of Eden was women’s. She tasted the forbidden fruit, tempted Adam and has been

paying for it ever since. Many women might see the summary it contains of their

relationship with their spouses as a fair description of their status through the

ages.

Women produce children, women are mothers and wives; women do the

cooking, mending, sewing and washing; they take care of men and are

subordinate to male authority; they are largely excluded from high status

occupations and from positions of power. As stigma theory predicts, childless

women deviate from the ordinary and natural life course and are deeply

discredited. When a woman is over 30 single and childless people want to know

why not just her what is she waiting for Childless woman are still viewed with

innate suspicion. Being mother is synonymous with being women, and then

failures to become a mother constitute not fully achieving the status of ‘woman’.

Desire for motherhood is inevitable and almost universal. Historical as well as

traditional motherhood for women has been seen as natural. It is obligatory to be a

mother and not only that but to be a mother of sons.

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Gupta, Jyosna Agnihotri,New Reproductive Technologies.Women’s Health and
Autonomy,2000 p.90.

1
 In a Polygamous family the mother of children enjoyed a social

superiority over the barren or childless co-wife. In fact the failure to provide a

(male) child was recognized as a legitimate reason for the man to acquire another

wife, thus devaluing the former wife’s status. They were also denied any

opportunity for education or pursing any vocation. Child bearing remained the

only avenue available to them to prove their social worth. In a patriarchal Kinship

structure a woman’s status in the household is determined by her ability to

produce off spring to carry on her husband’s lineage.

Infertility or the inability to have children on the other hand affects both

men and woman of reproductive age in all parts of the world. Fruitlessness

remains exceptionally stigmatized in India, framing the premise for. Various

exclusions from social and political life especially for lady. What's more basic

perception rising starting with Just about the greater part about these will be that it

may be lady who convey those load of obligation to childlessness2. It will be

viewed as a feared condition. Parenthood enhances status Also confers prestige3.

In ability to conceive gives rise to feeling of low self-esteem in woman and

increases their susceptibility to physical and verbal abuse, even abandonment4.

Women become the targets of covert and overt pressure both from the family and

the community. This induces them to access various types of treatment for

infertility.

2
http://www.samawomenhealth.org
3
Patel T, Fertility Behavior ,Population and Society in Rajastan, 1994.
4
Gupta, Jyosna Agnihotri, New Reproductive Technologies. Women’s Health and
Autonomy,2000.

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 Modern medical science has provided with lots of artificial techniques

which helps in conception and carrying the pregnancy to the full term. Thus

numerous ART clinics in the country represent themselves as the destination for

couples requiring technological assistance for conception or birth. This assistance

is not treatment, and does not address any biological cause of Infertility. This has

promoted, to describe ARTs as a technological solution to the social problem

of not having a child of one’s own5. The ideology of motherhood in Indian

society explains why fertility is so important. There are many reasons for the

importance given to biological children in society.

For men, having a child is proving their sexual potency it is important for

women, because for them there is link between feminity and fertility. ART give

hope to the infertile couple, who came up to have their own biological child, can

now have a child through high technological options like IVF. In India where

there is a stigma against infertility and childlessness this is perceived as a great

scientific achievement. IVF and other forms of ART are promoted today for all

forms of infertility. Beside other forms of ART, Surrogacy is one of the most

viable options for treating infertility. A man and woman lived together and had

physical relations, frequently followed by pregnancy and birth of a child. Having

children is the fundamental part of the life of men and women to respond to what

is their socially expected role, leading to the preservation of the human species.

But not all the couple is that lucky. They remains childless despite of various

treatment, but today ART has infused hope to those couple by providing various

5
http://www.ijme.in1170032
3
techniques, which helps in conceiving and delivering a biological child of the

couples and one of such technique is surrogacy. The individual and couples resort

to ART for infertility related problems. The world first Vitro fertilization (IVF)

baby was born in1978. Since then world has seen a rapidly increasing array of

assisted reproduction.

It is estimated that one in ten couples are affected by infertility.

Reproductive Technologies have a lot to do with the theology of the

family. One angle forconceptive innovation organization bargains with those

issues for pregnancy to benefit. This particular idea will be known as surrogacy

and it may be utilized for procreation. Ten to fifteen percent from claiming

wedded couples would unabated on bring know youngsters of their own. A

surrogate mother may be a lady who carries those child, generally for an fruitless

couple. In the field of new reproductive technologies, wide ranging development

has been taking place since 1970, which gave new hope and the chance to have

their genetic children to many infertile couples, through surrogacy.

Surrogacy is the practice of gestating a child for another couple and could

involve any of the various assisted reproductive technologies like AI, in-vitro

fertilization etc. The fertility market is estimated at Rs. 25000 crores today with

reproductive tourism industry growing by leap and bounds.

India’s surrogacy boon began in January,2004 with a grandmother

delivering her daughter’s twins where as India’s first surrogate baby was

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delivered on June 23rd 1994 but the controversy starts in 2008 when a dispute was

presented in the Supreme Court of India regarding the custody of child. Different

countries have adopted different policies to deal with this practice some countries

permit this practice some did not permit.

The concept of surrogacy which in general meant for ‘Womb on Rent’ is

not new; it was in prevalence in all societies all over the world in one or other

form. Surrogacy gain popularity due to conflicting interest involved in this

practice and the practice of surrogacy is also criticized on the ground of its

commercialization all over the world.

In India the situation was different, here it was presumed that surrogacy is

legal because no law prohibits this practice, but there was no any specific law for

the regulation of this practice which raises a number of social, legal and ethical

issues for debate. Despite of controversies the practice of surrogacy gaining

popularity and grow on day by day all over the world, and specially in India,

which is becoming the hub for surrogacy for different reasons such as availability

of surrogates on low priced, flexibility of laws regarding surrogacy, availability of

good infrastructure etc. Today in India this practice is growing like a business and

according to a report by law commission of India the fertility market is estimated

at Rs. 25000 crores which keep on growing day by day as many couples are

turning to surrogacy for various reasons today.

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 Surrogacy needs a deep observation as it affects the personal and social

life of many people. For the academic point of view the topic of surrogacy is very

important. Surrogacy involves many legal as well as social problems which need

to be observed. So the research is taken with the aim to explore all these social

and legal issues associated with the practice of surrogacy in India. Surrogacy is

also very sensitive issue as procreation undermines the institution of marriage and

family life treating children as object of sale etc. This practice is also criticized by

many people as exploitative for woman.

In India this practice becomes more problematic due to lack of specific

legislation on the subject. Surrogacy pose many legal problems such as legality of

surrogacy contracts, legitimacy of the child, right of surrogate mother over the

surrogate child, status of surrogate child, status of surrogate mother, status of

commissioning parents etc.

Initially this practice was used to help those needy couples who were

incapable of procreating a child due to various reasons, to them this practice was a

boon or a ray of hope to have their own child with whom they were genetically

related but with the passage of time this practice was used to gain profit rather

than to help the needy persons.

Commercial Surrogacy has been legal in India since 2002, a practice that

has been fully taken advantage of by many stars in the Hindi Film industry. As of

late producer Karan Johar turned into the father of twins- A person What's more

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 A girl-through a surrogate mother. Same time the name of the mothball

stays undisclosed clinched alongside BMC records, Johar will be recorded

Similarly as those adore for music, something she imparts to her father. India

need been An top pick country to the individuals needing a surrogate youngster.

Those Shabby accessibility of the administration empowers an abuse of the act for

appointing guardian arriving starting with Different nations too. For 2002, those

Indian committee of therapeutic examination (ICMR) laid out rules to surrogacy,

which aggravated those act legal, Anyhow didn't provide for it authoritative

support. This prompted An blasting surrogacy industry which needed careless

laws What's more no enforcements. An investigation directed to July 2012,

supported Toward the UN, place the surrogacy business during more than $400

million with more than 3000 ripeness centers everywhere the country. The ICMR,

even without legislative backing, provided pro-surrogacy guidelines that

protected, to an extent, the surrogate mother and the commissioning parents. It

prohibited sex-selective surrogacy, obliged the conception declaration with just

need the names of appointing guardians will make an donor, needed An extra

security spread for those surrogate mother and guaranteed right to security of the

mothball and the donor, Around other things.

However, the necessity of legal protection was enforced through the case

of Baby Manji vs Union of India. A Japanese couple commissioned a surrogate

mother in India but they ended in a divorce. The single male parent wasn’t

granted custody of the child and the mother refused to accept it. Japan gave the

child humanitarian visa and allowed the grandmother to take the child on behalf

7
of her son, given his genetic relation with the baby. Throughout those cases,

however, that preeminent court perceived that the guardians of a surrogate

youngster might a chance to be a male also distinguished surrogacy as a sure act.

A draft ART (Assisted Reproductive Technology) Bill was formulated in 2010,

but was never passed as a law. The bill lays down further states What's more

methods for surrogacy Furthermore notes that there are no regulations Similarly

as of now what number of the long run An introduction to the world mother might

be permitted should reproducer. The bill also enabled single parents, male or

female, to have a child trough surrogacy. Here, the women had to prove they were

infertile and couldn’t give birth while the men had no such condition. A research

undertaken by Centre for Social Research (CSR) points out that the bill did not

protect the rights of a surrogate mother. The bill also did not allow single foreign

nationals and homosexual couples to be commissioning parents. It defines

“couple” as “two persons living together and having a sexual relationship that is

legal in India”.

The bill, however, need no standards as should upon what amount of

payment a surrogate mother might get and ought to kick. Through abuse

frequently all the brings about declining wellbeing about moms who turned into

infant settling on machines. As stated by the CSR reports, surrogate moms need

aid paid $4000-$5000 for bearing those tyke. Clinics, however, charge those

receptive guardian twofold the cash. The reason driving the moms on surrogacy

may be as a rule neediness Also absence of education, which further ensures their

powerlessness to challenge those abuse.

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 Those examination states that centers don't give acceptable those mothball

for a duplicate of the agreement that is marked Toward the receptive folks. In

order to escape stigma (that they are indulging in this practice), pregnant women

often stayed in shelter homes that provided them with lesser security and

assistance than required. Same time they if make providing for conception with

main two children- Hosting in any event one own youngster starting with a sooner

birth-surrogate moms shutting phases dependent upon continuously misused to

An substantially bigger number, that's only the tip of the iceberg regularly over

not, giving conception particular case following the opposite. In commercial

surrogacy whole of the surrogacy arrangements are based on a contractual

understanding between the parties, so there may be a chance of the infringement

of the terms of the contract by any party which raises many legal complexities and

in India there is no any specific legal framework to deal with all these legal

problems involved in the practice of surrogacy. Due to the lack of the law on the

subject there may be a chance of abuse of this practice which may cause

exploitation. So commercial surrogacy is more controversial than non commercial

one, because in non-commercial surrogacy there is no involvement of any

monetary compensation. So the real sphere of the research is about commercial

surrogacy which is opposed by many scholars for its commercialization with all

the controversies involved in the issue, surrogacy has been gaining popularity all

over the world.

There is need to have legal check on the practice of surrogacy to avoid its

complications so that it can be used for a good purpose rather than converting this

9
practice from necessity to a profession. The present study is taken up with the aim

to present a detailed study of the concept of surrogacy in Indian society and an

attempt has been made to answer the different problems involved in this practice

with the help of existing laws.

Recently India has introduced the surrogacy regulation Bill 2016 in

Parliament. The Bill regulates altruistic surrogacy (non-commercial) and prohibits

commercial surrogacy. This prohibition raises many legal as well as social issues

which will be sorted out at appropriate place.

On light for this, the surrogacy (Regulation) Bill,2016 might have been

presented for Lok Sabha clinched alongside november. Those bureau endorsed

bill, however, need not been passed yet. The number one proposition of the bill

will be should totally abrogate business surrogacy. Characterizing business

surrogacy similarly as “surrogacy or its related methods embraced to an fiscal

profit or reward (in money alternately kind) surpassing the fundamental medicinal

expenditures and protection coverage”, this procurement will be meant toward

splitting down on the inside business of surrogacy that urge abuse. The bill just

permits unselfish surrogacy, the place the surrogate mother is a close relative of

the appointing guardian. The couple also has to prove their infertility. Under the

bill, all surrogacy clinics will have to be registered, the surrogate mother cannot

be paid directly and there will be national and state surrogacy boards which will

be the regulating authorities for the practice. Business surrogacy, abandoning

those surrogate child, abuse from claiming surrogate mother, selling/import of

10
human incipient organism need been set down Concerning illustration violations,

punishable Toward theory. Previously, addition, every one enrolled centers will

must administer records of surrogacy to 25 A long time. The mossycup oak

jostling procurement of law, Additionally display in the craft Bill, will be the

prohibition from claiming solitary parents, homosexuals, live-in couples from

turning into appointing guardians. Those bill also disallows childless alternately

unmarried ladies with make surrogate moms.

Same time the craftsmanship bill perceived business surrogacy

Furthermore furnished to its regulation, those surrogacy (regulation) bill takes

under record the far reaching misuse that is an item for business surrogacy;

Anyway it may be likewise abides Toward old thoughts from claiming who would

be guardian What's more who can't. The bill faced recoil starting with not the

polar Restriction as well as ladies who need aid right now included done business

surrogacy- these might be ladies who try from Hosting An stable sourball from

claiming pay will nothing in the least.

Indian society is ethnically and traditionally is very potent but

economically it is considered to be feeble. This society boasts of its ideology and

anxiety for the welfare of its citizens. The basic question arises, how this society

with such and ideology will permit renting or loaning a womb of a woman’s

body. Those who are in favour of commercial surrogacy believes in the liberty of

individuals. Those who apposed the commercialization of this practice give

references of morality and ethics.

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 In absence of any definite legislation, the role of judiciary is some extent

satisfactory in case of surrogacy. The Supreme Court judgment in Baby Manji

Yamada vs Union Of India took due notice that in cases of commercial surrogacy,

and intended parent may be a single male. Court said in a judgment that surrogacy

as a medical procedure “is legal in several countries including in India” without

elaborating on what makes surrogacy legal. The Court had the occasion to

consider the petition of a Japanese grandmother wanting issuance of a travel

document for her Japanese divorced son’s daughter. In this case the

commissioning parents divorced during the pregnancy commissioning mother

refused to accept the baby. The Court finally granted custody to the baby’s

grandmother. In Jan Balaz vs. Anand Municipality and 6 ors, the decision of the

Gujarat High Court holding that babies born in India to gestational surrogates are

Indian citizens and are entitled to Indian passports has been stayed by the

Supreme Court. However the twin German children in the case were permitted to

leave India upon the directions of the apex Court. The main issue of nationality

and citizenship being of grave importance is still undecided.

P. Geetha vs The Kerala Livestock Development on 18 June, 2014 Kerala

High. The petitioner and her husband being childless for more than two decades

had a baby through gestational surrogacy and took custody of the baby on the

very day of birth in terms of the surrogacy agreement. The petitioner, being an

executive in the first respondent Board, had applied for maternity leave. The

authority refused the leave application. The court has declared that a female

employee on her getting a child through surrogacy, instead of adoption, be

granted leave of the kind and admissible.

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 The above analysis there is no law for surrogacy in India which is, at the

moment, governed by the ICMR guidelines. Also the judicial approach towards

surrogacy is somehow manageable that the commercial surrogacy is legal in

India. The new draft bill is still pending before the legislature which needs to be

enacted to regulate surrogacy in India. The Law Commission of India in its 228 th

report on Assisted Reproductive Technology procedures has emphasized that the

steps should be taken to control surrogacy arrangements.

The social-legal issues relating to surrogacy in India could not be

addressed in right manner because of the absence of any definite law. The

commercial surrogacy in legal in India whereas at present there is no law to

regulate surrogacy. The government of India must enact a law to regulate

surrogacy considering all aspects in such a manner by which surrogates can be

protected and will not be exploited.

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