RAJIV GANDHI NATIONAL UNIVERSITY

OF LAW

FINAL DRAFT

CONCEPT OF SURROGACY

NAME – VATSAL DHAR

ROLL NO. – 19140

GROUP NO. – 25

SUBMITTING TO – Ms. ANANYA SHARMA

TABLE OF CONTENT
 INTRODUCTION

 HISTORY OF SURROGACY

 COMMERCIALIZATION OF SURROGACY

 SURROGACY RESTRICTION BILL

 CASE LAWS

 CONCLUSION
INTRODUCTION
Surrogacy is an agreement where a woman agrees to be artificially inseminated
to carry with the semen of another woman’s husband.1
The word surrogate is derivation of the Latin word surrogates which means a
substitute. Surrogacy is an important process for couples who do not have great
ability to become parents, but due to the increasing number of cases of
surrogacy in the country, leading to the development of commercialization of
surrogacy, mainly affecting surrogate mothers. because it leads to the
exploitation of the birth mother. The history of surrogacy in India is also
discussed in ancient Hindu mythology, which gives many examples related to
surrogacy from ancient times. The positive side of surrogacy brings happiness
to infertile couples, but unlike this, the negative side is the cause of many legal,
social, ethical and moral problems in society of a country like India. In addition,
the article describes further developments in the field of surrogacy and how the
government completely banned the commercialization of surrogacy and tried
very hard to implement only one form of surrogacy excuse. In addition, our
union cabinet passed a bill to regulate and build on the authorized surrogacy
process in the country. The purpose and objectives of the Surrogacy Regulations
Bill are discussed in more detail at the end of the article. Some of the cases
discussed in more detail show how the Indian justice system has responded to
the phenomenon of surrogacy and the various regulations and laws associated
with it. The immature reproductive right is an uneducated right of all
individuals. Parenting is the most life-changing and rewarding experience of all
time. Today in the technological world, the medical science of infertility has
made great leaps and bounds. When two men or women are linked by the
marriage bond, the existence of a new family is established and this family is
considered complete when they have given birth to children. However, there are

1
Black’s Law Dictionary
couples who cannot have a child of their own. Research has shown that one out
of every six couples have such a problem. Childlessness is seen as a stain on the
family. In many cases, the inability to have children led to the breakdown of
marriages. Not being able to have children is medically known as infertility
which is a worldwide problem. According to the WHO report, the rate of
infertility worldwide, including India, is about 1015%. In the past, the only risk
for childless couples was adoption, but advances in medical facilities, the fields
of infertility treatment, and artificial reproductive technology make the change
possible. So, motherhood today is completely possible. Today, there are many
choices in human artificial reproductive technology, such as in vitro
fertilization, embryo transfer, and more. Out of all these methods, surrogacy has
become the most popular.
Surrogacy in a country like India has strengthen a new level of advancement in
the field of scientific development in which a mother of another womb helps
another mother to help her in being a mother who by any reason not able to
have child.
 HISTORY OF SURROGACY
According to Hindu mythology, it also gives examples of surrogacy that show
the secret that the practice of surrogacy still surrounds us. In Bhagavata Purana,
Vishnu ji heard Vasudev’s prayer begging Kansa not to kill all the sons born.
Vishnu heard these prayers and transferred the embryo from Devika's womb to
the embryo of Rohini, another wife of Vasudev. Rohini gave birth to baby
Balarama, Krishna's brother, and raised the child in secret while Vasudev and
Devaki told Kansa that the child was born dead. The story of surrogacy also
belongs to the Mahabharata, as in the Mahabharata Gandhari delivering a semi-
solid material to the birthplace, Maharishi Vyas divided this semi-solid material
into 100 pieces and planted them in different pans. So, 100 Kauravas were born.
India's first IVF baby and world's second Kanupriya baby were born 67 days
later on 3 October 1978. Baby Kanupriya is the result of the efforts of Dr.
Subhas. Mukherjee and hid two companions in Kolkata. The birth of this first
IVF baby in India has been the subject of great controversy. Traditional
surrogacy has been done for many generations, recently surrogacy has
developed much more. In 1978, the first in vitro fertilization (IVF) baby was
born. Just five years later, in 1982, the first baby born from egg donation was
born. The combination of these two cutting-edge technologies led to the
emergence of surrogacy, which was first performed in 1985 and has grown
exponentially in popularity over the past 20 years. In 1986, when surrogacy
encountered its first real legal hurdle in delivering a child, a traditional
surrogate mother decided that she wanted to keep the child. A two-year legal
battle between the agent and the intended parents eventually resulted in the
intended parents retaining custody of the child. As surrogacy continues to grow,
this landmark case, known as the “Baby M Case,” has raised legal questions in
many countries around the world. Today, commercial surrogacy is legal in most
US states and in several countries, including India, Russia, and Ukraine;
however, prospective parents from countries where surrogacy is illegal can
legally go abroad to give birth through surrogacy. In 1999, surrogacy reached a
new stage with the development of the Special Program on Assisted
Reproduction (SPAR). The program allows an HIV-positive man to become the
biological father of his children without transmitting the disease. Even more
recently, in 2011, several surrogacy records were broken when the oldest
surrogate, 61, became pregnant with her own grandchild. Surrogacy, both
traditional and surrogacy, has helped families for centuries. The reality has
evolved from a rarely recorded event thousands of years ago into a viable and
rapidly growing option for having children.

The underlying foundations of Indian surrogacy have its follows in the set of
experiences and gave confirmations of being extremely old method. The
technique turned into an effective practice in India with the introduction of
world's second and India's first IVF child Kanupriya pseudonym Durga who
was brought into the world in Kolkata on Oct. 3, 1978. From that point forward
the field of helped conceptive innovation or called ART in short has shown
quickest improvements. The strategy began long back be that as it may; there is
still no legitimate acknowledgment of surrogacy in India. Till date just
gestational surrogacy has been advanced that is likewise in its early stage.
Notwithstanding it, the laws identified with surrogacy are likewise in the early
stage. The directing power between both the gatherings for example the
substitute and the planned guardians are only the ART rules planned long back.
There are no systematized laws. They are yet to be embraced and carried out.
With the new development in the count of Intended guardians selecting
surrogacy in India, the country has turned into the much-pursued surrogacy
objective. In India, surrogacy has consistently stayed a discussed point as it has
consistently been examined upon lawful, social and moral angles. There have
been cases that have come about in both the blessing and now and then against
the act of the strategy when the endeavour didn't bring about progress.
Nonetheless, after numerous endeavours business surrogacy was made lawful in
India in 2002. India has substantiated itself to be quite possibly the most well-
known surrogacy destination favoured globally.

In past certain a very long time there has been colossal development in
regenerative methods in India that incorporates imaginative entryway
insemination strategies, in vitro preparation procedures, incipient organism
strategies and substantially more that has given desires to childless couples. At
one hand where expected guardians are much glad to have such a strategy
accessible for them, there are a few networks, then again who are not in the
blessing rehearsing surrogacy in India.
 COMMERCIALISATION OF SURROGACY
The trade of a youngster is a thing that can be difficult to envision as the kid is
image of the adoration not of the cash and having a kid is an insight away from
the idea of promoting exercises. However, surrogacy has turned into a piece of
the business in a nation like India. This commercialisation of surrogacy has now
turned into a political discussion for the Indian culture. The market of surrogacy
is presently turning out to be extremely enormous and becoming quickly. There
are "N" numbers expected guardians in a nation like India want to recruit
different ladies to bear their kid. The idea of surrogacy has rotated around a
conventional biotic capacity of the body of a lady into a business contract and
subsequently the substitute administrations are presently even promoted.
Proxies are being enrolled and the working organizations create tremendous
gains from them. The commercialization of surrogacy is only the leading to the
new issue of selling youngster and setting up rearing ranches which might
transform ladies into child makers. The administration of the surrogacy cycle in
India is named as child blasting business by numerous specialists. Surrogacy in
India is currently named as the business contract for a typical organic capacity
in the ladies. The justification behind the thriving business of surrogacy in India
is that the proxies’ ladies are effectively accessible in a nation like India and the
whole expense for the course of surrogacy is substantially less as contrast with
different nations. In India at present the matter of the substitute parenthood
include approx. $445 billion. The main country on the planet which sanctioned
the occurrence of business surrogacy is India in year 2002. On a normal the
greater part of the proxy's moms in India are paid cash in Instalment’s for the
time of 9 months during the time spent surrogacy. In beyond couple of years
there has been an abrupt expansion in the instances of surrogacy, the
augmentation is probably going to be over 150%.

The spots in India where proxies are effectively accessible are-Anand town in
Gujarat State, Indore city in Madhya Pradesh, Pune and Mumbai in Maharashtra
State, Delhi, Kolkata, Thiruvananthapuram. Childless couples from everywhere
the world came to India in the inquiry of the substitute mother as the
accessibility of the proxy mother in India is more and at an extremely less
expensive expense than different nations of the world. By and large the courses
of action of the course of surrogacy are drawn up in an arbitrary manner and can
be underhanded particularly since substitutes are for the most part from the
social financial more fragile segment of the Indian culture. After a basic
perception in India the information given by the National ART (counterfeit
regenerative procedure) Registry of India, there is hop of 300% cases in the year
2005 regarding the cases from the year 2004 for example 50 cases in 2004 to
almost 160 cases in year 2005. As indicated by the Human Organs Act 1994, it
boycotts the exchange of the human organ as a piece of business.

Our country became a big supermarket for surrogacy due to cheaper availability
of the surrogate mothers or we can say that due to cheaper availability of the
reproductive labours. An article was published by the Hindustan Times in the
year 2011 titled “MOMS ON THE MARKET” which roughly figures the
surrogacy arrangements and the market value of the different process in
surrogacy.

Now, here what it takes to a baby shopping in India:

 Surrogate Charges (INR 1,00,000-3,50,000)

This fee varies from state to state in India, for this the surrogate mother must be
healthy, the surrogate mother needs to be the mother of a single child, and she
also have to mature enough so that she can able to bear the consequences of the
process of the surrogacy.

 Egg Donor (INR 2,00,000 approx.)

Highly qualified and most fertile eggs are in demand from the egg donor and the
prices are according to their fertility.

 IVF procedure cost(INR 66,000)

 TWINS (INR 1,35,000) 

Extra in the case of certain complications

Surrogate Compensation (INR 20,000- 30,000 approx.)

In the year 2002 commercial surrogacy was legalised by the India seeing this
immense growth of surrogacy in India leads to the growth of the many
commercial surrogacy firm who claims to have the forte in the surrogacy law
and assisting the foreigners who came India in search of mother womb as a rent.
Such marshalling is considered to be very combustible in nature as it leads the
commercialisation of the baby selling and also harm the dignity and the
reputation of the vouchsafed phenomenon of the women reproductive
capabilities. The 228th report of the Law Commission of India has
recommended to prohibit the process of commercial surrogacy and enacted the
suitable legislation which allows performing altruistic surgery which is ethical.

There were certain guidelines issued by the Indian council of medical research
for regulating surrogacy arrangements they are:
  The surrogate mother would be entitled for the monetary
compensation, the value of which would be decided by the couple and
the surrogate mother.

 The surrogate mother cannot donate her own egg for the surrogacy and
that she must relinquish all parental rights related to the surrogate
child. 

SURROGACY (RESTRICTION) BILL IN INDIA

In a significant turn of events, the Union Cabinet on 26th February 2020
endorsed the new Surrogacy (Regulation) Bill 2020, permitting any 'willing'
lady to be a substitute. The Bill assumed a lower priority because of the
COVID-19 pandemic however is relied upon to be presented as the 2021 Bill in
the Lower House of the Indian Parliament in its impending meeting. However,
the Bill is a huge improvement to the Surrogacy (Regulation) Bill 2019, it keeps
on embracing a necessities-based methodology rather than a rights-based
methodology, subsequently neglecting to give ladies the independence they
merit.

The significant discussion around surrogacy is the clashing interests of its

various partners. On one hand, is the state's obligation to forestall double-
dealing of the substitute and to ensure the interests of the to-be-conceived kid.
Then again, is the right of ladies to settle on their own regenerative decisions
and the right of people to parenthood. India's guideline of surrogacy has battled
to track down a harmony between these clashing interests. Business surrogacy
was authorized in India in 2002, and because of the shortfall of guidelines,
minimal expense of fruitfulness centres, and an enormous stock of helpless
ladies willing to offer this support, India turned into a centre point for
transnational surrogacy. Nonetheless, the ones who decided to become
substitutes were exposed to abuse, helpless everyday environments, and
untrustworthy treatment. It was solely after the questionable instance of Baby
Manji Yamada v. Association of India, that the moral side of business surrogacy
came into public examination. Thusly, endeavours were produced using 2008 –
2014 to pass enactment managing surrogacy, notwithstanding, none of these
appeared. Lobbyist and attorney Jayashree Wad likewise moved the Supreme
Court featuring the entanglements of the surrogacy business. However, she
couldn't get help from the Court, her request formed general assessment and
made huge tension upon the Government to pass enactment. Resultantly, the
Surrogacy (Regulation) Bill, 2016 was presented and passed by the Lok Sabha.
Nonetheless, the Rajya Sabha didn't pass the bill and asked a Parliamentary
Standing Committee to look at its arrangements. This activity finished in the
102nd Report in 2017, which recommended moderate changes to the 2016 Bill.
Regardless of this, the 2019 Bill overlooked the suggestions of the
Parliamentary Committee and was a careful reproduction of the 2016 Bill. It
restricted business surrogacy and allowed just philanthropic surrogacy in this
way keeping the substitute from profiting financial remuneration for her
administrations. Such a limitation strips ladies of their independence in settling
on conceptive decisions and supports customary cultural upsides of ladies' work
in the private circle having no financial worth. By and by, the Bill was not
passed by the Rajya Sabha, and a Select Committee was framed to prescribe
changes to the enactment. This Committee suggested erasing the provision
which characterized 'fruitlessness' and required a five-year holding up period
before issuance of a barrenness declaration, subsequently making admittance to
surrogacy more straightforward. It additionally suggested erasing the condition
which just considered direct relations to go about as proxies saying that it
"overlooks the ground truth of most Indian families where ladies have little
dynamic position" and that this will cause a circumstance where ladies will be
pressured by their families into giving regenerative work. While the Committee
has rectified a portion of the imperfections of the 2019 Bill, it actually holds
others, which also are prohibitive and prejudicial. Also, it keeps a requirements-
based methodology towards getting to surrogacy as opposed to propelling a
rights-based methodology.

These advancements come in the midst of a developing pattern of the Supreme

Court expanding the extent of 'freedom' under Article 21 to incorporate the
option to settle on regenerative decisions. By prohibiting business surrogacy,
the Bill doesn't consider the diverse parts of what the law would mean for
ladies' more right than wrong to their bodies. The benevolent model anticipates
that a woman should go through the physical and passionate costs of surrogacy
liberated from cost and just out of 'sympathy'. Such an assumption is
paternalistic, ridiculous, and man centric in its methodology. Its impact is the
refusal of a real kind of revenue to substitutes. This thusly seriously restricts the
quantity of ladies willing to go through surrogacy, and by implication denies
planning guardians the chance to profit of it. The proposed Bill additionally
keeps on denying this chance to LGBTQ+ people, live-in couples, and single
guardians. Indeed, even those included inside its ambit are needed to have an
'endorsement of centrality' expressing that it is naturally outlandish for the
person(s) to have a youngster in some other way. It doesn't consider other
ailments which despite the fact that don't deliver ladies fruitless, make the
pregnancy less secure and more troublesome.

In the world of the diverse jurisdiction the legal approach to the process of
surrogacy differs from one jurisdiction to another jurisdiction. The international
motion to the surrogacy has been differentiated in three major approaches they
are:

1. Free Market
 2. Regulated

3. Prohibited (forbid) 
Many jurisdictions of the world completely interdict the process of surrogacy as
they proclaim commercial surrogacy to be a criminal offence in their respective
jurisdiction on the contrary some jurisdiction permits process of surrogacy but
only to some extent or we can say that only on the grounds of altruism
(selflessness). In the world only country India neither completely interdicts the
surrogacy nor synchronizes the process of surrogacy, the reason behind this is
that In India the surrogacy is not directly proclaimed unenforceable by the law
so it is considered to be valid and enforceable. 

The assisted reproductive technology bill 2008 was drafted by the Indian
council of medical research to sanction and regularize different form of
reproductive technologies including the process of commercial surrogacy. The
law commission of India in its 228th report rationalize that why there is a need
of the surrogacy in India. According to the provision ART (Assisted
Reproductive Technology) bill 2013 no women of the age less than 21 years
and more than 35 years can act as the surrogate mother. This bill leads to put
condition on the foreign couples who are taking womb at rent which was first
time by this ART bill 2013. The compensation for the surrogacy as per the
guidelines by the ART bill 2013 draft will be the private negotiation between
the surrogate mother and the commissioning couples. The ART bill 2013 leads
to disqualify homosexual couples, foreign single individuals and the couple in
live in relationship from having the child through the surrogate mother in India.
CASE LAWS

1. The German Couple Case 

In this case a childless German couple has twins through the surrogate mother
with the help of Anand Infertility Clinic Gujarat. Since the German laws did not
recognise the surrogacy as a means of parenthood, due to this twins are not
treated to be the German citizen so the citizen so the German commissioning
parents to avoid the foreseeable hurdle of the Immigration laws they approach
to the High court of the Gujarat for authorizing their surrogate twin with the
Indian Passport, on which Gujarat High Court held that the child who born
through the surrogate mother will carry the name of the surrogate mother but
not of the Biological mother and the child should be authorize with the Indian
Passport and certifies him as the Indian citizen and the surrogate mother in turn
had to give the child to the German couples in adoption.

2. Baby Manji Yamada’s case,

In this particular case the Japanese couple entered into a contract with an Indian
woman to be the surrogate mother for their child. After this Baby Manji
Yamada’s was born to the Indian surrogate mother. Further the commissioning
father Mr.Yamada tries to take his child to Japan for which he applies for visa to
Japan to which the embassy of Japan in India denied as the Japan civil code did
not grant the surrogate child. After which Mr. Yamada tried to file for Indian
visa which requires a birth certificate an on birth certificate there is need of the
name of the Father and Mother of the child, but in this case Mr. Yamada was
the genetic father of the baby Manji but ambiguity arises in the case of the
mother name as there are three mothers for that child- The commissioning
mother, the egg donor and the surrogate mother ; seeing this authorities refuses
to give visa to child Manji as the legal mother was not certain. In the end the
Apex court of India had to be interceding and the child Manji was allowed to
leave the country with her grandmother.

After the case of Manji, the Supreme Court of India in 2008 held that surrogacy
is permissible in India due to which it subsequently increases the international
confidence in going in for the surrogacy in India. 

3. In another case the Israel gay couple Yonatan and Omer Gher became
parents in India in year 2008 through help of a surrogate mother who
belonged from Mumbai in an infertility clinic of the Bandra. After which
both the gay couples have vouchsafed with a baby as the Israel laws does
not allows the same sex marriage and the surrogate child so they came
India for their child. After the child was born the gay couple left to the
Israel in the year 2008.

All these cases aroused to the pedagogical interest and has consequently
brought the process of surrogacy bill into existence that rules out the process of
surrogacy rules for the foreign citizen who are approaching for the Indian
surrogate mother. The ban is already in place by a letter dated 28th September,
2015 from ICMR to all the clinics in India that directs them not to assist foreign
couples on having a child through an Indian surrogate mother. 

CONCLUSION
Surrogacy in the world is not a new concept of having a child but the process of
the surrogacy had been practised from ancient times. Surrogacy is a method of
childbirth that is not confined to couples who are infertile or unable to have a
child due to a medical condition, but is also used by anyone who chooses to
have a child. As the number of surrogacy procedures increases, it has an impact
on the country or the world, sparking arguments on legal, ethical, religious, and
moral issues all over the world. Increases in the process of commercial
surrogacy result in violations of human rights, yet commercial surrogacy
protects infertile women's reproductive rights. As the surrogacy industry in
India grows, it has brought with it a slew of new complications and a slew of
social, ethical, and legal difficulties, necessitating the creation of new
regulations. The Surrogacy Regulation Bill arrives at a critical time in the
investigation of the commercial surrogacy process, which is rapidly becoming
an immoral industry for the people of India. The measure primarily focuses on
prohibiting exploitation of surrogate mothers and the children born through
surrogacy.
In a country like India, the procedure of surrogacy has both beneficial and
negative consequences. If it is used wisely, it can provide happiness to many
infertile couples who are unable to have children, but if it is used carelessly or
for the sake of commercialization, it can have a negative impact on society as a
whole.

BIBLIOGRAPHY

 https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-

constitution/#Commercialisation_of_surrogacy_arrangement_in_India

 https://blogs.lse.ac.uk/humanrights/2021/04/21/indias-new-surrogacy-

regulation-bill-falls-short-of-protecting-bodily-autonomy-and-

guaranteeing-reproductive-liberty/

 https://surrogate.com/about-surrogacy/surrogacy-101/history-of-

surrogacy/

 https://www.worldwidesurrogacy.org/blog/the-history-of-surrogacy-a-

legal-timeline
 https://timesofindia.indiatimes.com/readersblog/legal-writing/surrogacy-

provisions-in-india-35429/

 https://youtu.be/2iCiwKjdM6k

 https://youtu.be/pMZNvAn0SRE

 https://youtu.be/jg0mxGe9S-o

 https://youtu.be/CUOfNudnmtw

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