Surrogacy Under Indian Law: An Appraisal

-Pratiksha

Introduction

The calling to have children among a couple is universally common and the same applies to
India, where society has worked constantly for family growth and having children. India is a
country where the joy of becoming a mother or becoming a parent is considered the greatest
pleasure. But it is not everyone's destiny. Many couples in India are incapable of bearing
children of their own the WHPO report states that 15% of couples suffer from the problem of
medical infertility.
However, medical infertility is not the only cause of infertility. In the past few decades, a
distinct type of infertility known as social infertility has evolved. This means the incapability
of an individual to procreate a child due to various social circumstances in life1. For example,
widowed, divorcees, single individuals, etc.. may be fertile but they are unable to have a child
unless they marry. Even homosexual couples cannot have children. Having a child requires a
sexual union between a man and a woman2.

In order to accommodate such couples and individuals, traditional methods of adoption were
developed, however, these methods did not fulfill the natural innate desire of an individual to
have a child. This desire to beget a genetically related child led to the development of various
techniques, such as Artificial Insemination, In-vitro Fertilization, Surrogacy, etc 3.

Surrogacy- Meaning

Surrogacy derives from the Latin word surrogatus which means replacement. Black's Law
Dictionary defines surrogacy as an "agreement wherein a woman agrees to be artificially
inseminated with the semen of another women's husband4”. She agrees to conceive a child,
carry the child to term, and after the birth, assign her parental rights to the biological father
and his wife". The term 'surrogacy' simply refers to an arrangement in which a woman bears
a child for a married couple and then hands over the child after 9 months. The woman who
bears the child is known as a surrogate mother and the child born out of such an arrangement
is known as a surrogate child.

Types of Surrogacies: -

1. Traditional Surrogacy:

In this type of procedure, the surrogate mother's egg is used, and the intended father's
(donor's) sperm is implanted inside the woman. The child born out of this method tends to
have the genetic features of the surrogate mother, and the surrogate mother is the biological

1
Camelia Soo, "Babies for the Socially Infertile: How Concievable is it?, 12 The New Zealand Medical Student
Journal 27 (2010)
2
Ibid.
3
John A. Robertson, "Assisted Reproductive Technology and the Family, 47 Hastings Law Journal, 911
4
Bryan A. Garner (ed.), Black's Law Dictionary, West- Thomson Reuters, U.S.A (6th ed.- 1990), p. 1445
mother of the surrogate child. It is a simple method, the intended mother does not undergo
any fertility treatments, and the surrogate mother does not undergo any treatment or egg
retrieval since her eggs are never used.

Before In-Vitro Fertilization (IVF) was recognized, this method was used.

2. Gestational Surrogacy:

In this method, the egg and sperm of the intended couple are taken out. The egg of the
intended mother is fertilized with the sperm of the intended father, and an embryo is created.
This embryo is then carried by the surrogate mother. In this method, the In-Vitro Fertilisation
mechanism is used.

In this case, the surrogate is not the biological mother, instead, she is the birth mother, and
this method is preferred since there is no emotional connection. In addition, the child has the
genetic qualities of the intended parents. Pre-implantation Genetic Diagnosis is also
performed to ensure that the child is born healthy and free of any future diseases.

There are two more categories of surrogacies apart from the abovementioned: -

1. Commercial Surrogacy/Paid Surrogacy:

This is the most common form of surrogacy, in which the intended couple contracts with the
surrogate mother regarding payments and expenses. The couples are liable to pay for all the
medical and other surrogacy-related expenses.

2. Altruistic/Unpaid Surrogacy:

The surrogate mother is not compensated in this situation; she does it for the welfare of
society and the happiness of childless parents. The surrogate mother only gets paid for
medical and pregnancy-related expenses. These are generally done by a person who is in
relation (friends or relatives) to the intended parents.

History of Surrogacy in India

The concept of surrogacy is not new to the world and has its origin in ancient times. It was
mentioned in Greek mythology and also in Indian mythology. The Mahabharata also
describes the Niyog (i.e. IVF in the present age) as a solution to the problems faced by the
Kuru brothers Pandu and Dhritrashtra.5

As a primitive society, certain kinds of sons, such as Ksheraja- the son born to the wife by
another man, Gudaja- the son born to the wife by secret intimacy with another, Nishad- the
son born by a Shudra woman, Prasava- the son born to a Shudra man, and Parasava-the son
born to a concubine, were recognized as valid as belonging to a Hindu

5
Social Implications of Surrogacy, Yogendra Singh,
Legalization of Surrogacy in India

The first reported surrogacy in India happened in 1994 in Chennai6. And the first reported
commercial surrogacy in India took place in 1997 wherein a woman acted as a surrogate for
money7. This incident received a lot of public attention and generated various debates on the
legality of surrogacy practices. And to deal with this issue the Indian Council for Medical
Research came up with certain guidelines in 2000 and adopted Ethical Guidelines for
Biomedical Research on Human Participants8. In this certain guidelines related to ART were
mentioned. A Draft Guidelines for Accreditation, Supervision, and Regulation of Assisted
Reproductive Technology Clinics in India was submitted by ICMR to the Ministry of Health9,
and this step was interpreted as the legalization of commercial surrogacy by various websites
and authors but that is not true.

These 2002 guidelines were further updated and adopted by ICMR in 2005, but these were
not binding and their adoption and application were only voluntary. The Assisted
Reproductive Technology (Regulation) Bill and Rules were enacted in 2008, although it was
not officially enacted as a law.

But the 2002 bill legalized and recognized commercial surrogacy. This attracted a lot of
infertile couples from different countries. They came to India in search of a woman who can
rent her womb and be a surrogate mother to their baby. And soon India became a commercial
surrogacy hub. But, this affected the health of women very badly. It directly affected
women's reproductive health and ultimately led to the exploitation of women.

The failure of the Indian legal system to deal with this issue came into the limelight in Baby
Manji Yamda v. Union of India. In this case, a Japanese couple came to India for surrogacy,
and to find a surrogate mother to give birth to their child. However, during the pregnancy, the
Japanese couple got divorced and the intended mother refused to take the child. Though the
intended father was willing to take care of the child. But, the question arose what would have
happened if the intended father had also refused to accept the child?

Also in case law Jan Balaz v. Anand Municipality and Ors., a German father filed a case
against the passport authority as they refused to grant a passport to his son born out of
surrogacy. In India, the mother's name is required for the passport. However, since the child
was born through surrogacy the father was unable to provide the mother's name, the Gujarat
High Court declared that a child born out of surrogacy to an Indian mother is an Indian
citizen and therefore ordered the authority to issue the passport.

Rights of Intended Parents

Intended Parents: Meaning

6
Geeta Padmanabh, “Hope in the Test Tube”, The Hindu, Jan.19, 2006
7
Sandhya Srinivasan, "Surrogacy Comes Out of the Closet", Sunday Times of India, July 6, 1997
8
Indian Council of Medical Research, Ethical Guidelines for Biomedical Research on Human Participants, New
Delhi (2006)
9
John Connell, Medical Tourism, CAB International, U.K., (2011), P.142; Wendy Chavkin and JaneMaree
Maher, The Global Politics of Motherhood: Transformation and Fragmentation, Routledge, New York (2010),
p. 137.
The intended parents are the couples or in some cases, individuals who wish to beget a child
with the help of surrogacy10. They enter into an agreement with the surrogate mother to
become legal parents or legal parents of the child born to the surrogate. They are thus the
infertile couples or individuals who intend to have a child through the process of
surrogacy11and are also known as commissioning parents12.

A surrogacy arrangement can present a number of legal issues. These issues include: do the
intended parents have the right to use the surrogacy arrangement to have a child, what if the
surrogate mother refuses to give the child, and how much control the intended parent has over
the characteristics and activities of the surrogate mother during pregnancy? Hence the
question arises whether the intended parent has a right to control surrogacy practices and if
so, to what extent?

Rights of Intended Parents

Different legislations enacted all over the world have not explicitly stated the rights and
duties of the intended parents, but various case laws reveal the following rights of the
intended parents:

1. Right to Select a Surrogate Mother

The right of the intended parent to choose a surrogate mother can be justified. This is because
since the parents have the right to procreate with the help of a surrogate mother, they should
also have the right to choose the surrogate. However, this right to select is not an absolute
right and reasonable restrictions can be imposed by the State. For example, a woman below
25 years, a woman who had already acted as a surrogate 3 times, or a woman relative who is
within prohibited degrees cannot be selected as a surrogate mother.

2. Right to impose restrictions upon surrogate mother13

Every parent wants their child to be healthy when they are born. Therefore, the intended
parent has a right to restrict the behavior and activities of the surrogate mother during a
surrogacy pregnancy. The surrogate mother is bound to follow such rules. These restrictions
cannot be unreasonable and they must be necessary for the fetus's normal development14.

3. Right to Information and Visit Surrogate Mother during Pregnancy

The intended parents have the right to be provided with necessary information regarding the
development of the fetus and the health of the surrogate mother.

10
Dr. Rebecca Gibbs, "Surrogacy: Medical, Ethical and Legal Issues to be Considered" North East Essex PCT,
(January 2008)
11
Successful Surrogacy and Intended Parenting" (web page), available at
<http://www.surrogacymumbai.wordpress.com> Visited on 10.3.2012.
12
John Dwight Ingram, "Surrogate Gestator: A New and Honourable Profession", 76 Marq. L. Rev. 675 (1993),
at p. 677
13
INTENDED PARENTS AND THE LEGAL
CONCERNS RESEARCHGATE, https://www.researchgate.net/publication/340755418_INTENDED_PARENTS_
AND_THE_LEGAL_CONCERNS (last visited Oct 7, 2022)
14
Donald Evans and Neil Pickering, Crating the Child: The Ethics Law; and Practice of Assisted Procreation,
Kluwer Law International Publication, U.S.A (1996), p. 162
 4. Right to Custody and Parentage of Child

The intended parents are entitled to custody and parentage of the child from the moment it is
born since the primary objective of surrogacy is to enable the intended parents to have a child
of their own.

Section 34(3) of the ART Bill, 2010 states that a surrogate mother shall relinquish all parental
rights over the child.

5. Right to Maternity and Paternity Leave for Intended Parents

In India, under the Maternity Benefit Act, of 1961 as well as The Employees State Insurance
Act, of 1948, every working woman is entitled to get maternity leave with wages for 12
weeks. The leave is given to ensure that the newborn child will get adequate maternal care
after birth. In Surrogacy also the baby is handed over to the intended parent immediately after
birth and therefore the intended parent shall be provided with maternity leave so they can
take care of the surrogate child.

Right of Surrogate Mother

1. Right to be Surrogate

Whether a woman has the right to be a surrogate or not is one of the first questions that
comes to our minds, is there any legal provision prohibiting or permitting it? Sadly, this
question does not have an answer, as neither the international nor national legal documents
expressly mention the woman's right to be a surrogate.
Surrogacy legislation varies from country to country. Some countries permit altruistic
surrogacy15, while others allow both altruistic and commercial surrogacy16, and some have
entirely banned surrogacy17.
In India, this question has gained significance since India is becoming a hub for surrogacy
practices and many poor women are offering to be a surrogate mothers. Therefore, it becomes
necessary to develop specific legislation. This is because a lack of legislation could lead to
many unwanted situations, and the right to be a surrogate mother is a fundamental issue that
must be addressed. Moreover, the right to rent a womb stem from three basic human rights
which are the right to personal liberty and right to privacy; the right to ownership of the body;
and the right to enjoy the benefit of technological and scientific developments.

2. Right to Personal Liberty and Right to Privacy

15
Canada,Hungary,Hong Kong, United Kingdom, Greece, Denmark, Netherlands, Belgium, Philippines,
etc. and some of the states in USA like New York, Washington, and North Dakota
16
South Africa, India, Georgia (Country), Russia, Ukraine, Armenia, Iran, Bahrain, New Zealand, Lebanon,
Saudi Arabia, etc. and some of the states in USA like Maryland, Ohio, Oklahoma, Illinois, Utah, Arkansas,
Florida, New Hampshire, Nevada, Texas, and Virginia
17
For example, the countries like, Austria, Germany, Sweden, Norway, Switzerland, Italy, Iceland, Japan,
Spain, Vietnam and some of the states in USA like West Virginia, New Jersey, Arizona, Kentucky, Michigan,
Nebraska, Indiana, District of Columbia, and Tennessee
The right to life and personal liberty is one of the most basic and fundamental rights
enshrined in the Universal Declaration of Human Rights, 1948. The right to procreate is also
considered a facet of the right to life and personal liberty.

The Supreme Court in Maneka Gandhi v. Union of India18 held that in Article 21, the term
“personal liberty” encompasses a wide range of rights.19

In addition, the concept of the right to personal liberty can be understood from the words of
Justice K. Ramaswamy, who noted that the right to life is a fundamental right of every citizen
to pursue happiness and excellence.

There are numerous dimensions of the right to personal liberty and including the right to
privacy, which has evolved as a fundamental human right in India. In the case Gobind Singh
v. State of Madhya Pradesh20, the court held that the right to privacy is a fundamental right.
Also, in R Rajagopal v. State of Tamil Nadu21, the court determined that a citizen has the
right to protect the privacy of his own family, marriage, procreation, childbearing, etc. The
court also held that the decision related to reproduction is a personal matter in B.K
Parthasarthi v. Government of Andhra Pradesh22.

From the above, it is clear that the right to privacy includes the right to decide to bear and
beget a child. Therefore, this right includes the right to bear or beget a child for another i.e. to
rent a womb or the right to be a surrogate.

The Surrogacy (Regulation) Act, 2021

The Act's primary objective is to allow only altruistic surrogacy and outlaw commercial
surrogacy. The Act defines altruistic surrogacy as surrogacy in which there is no payment
other than for the surrogate mother's health costs, and the surrogate mother is a relative or
close friend of the intended parents.

Some of the Key features of the Act include the following: -

The Eligibility Criteria of the Couple

1. The intending couple should be legally married for 5 years and the age of the female
should be between 25-50 years and the age of the male should be 26-55 years.
Additionally, the couple should not have another adopted child or child conceived
naturally or through surrogacy.
2. Couples should have an infertility certificate, either male or female suffering from
infertility.
3. Couples shouldn't be producing a child for commercial purposes, sale, prostitution, or
any other forms of exploitation.

18
Maneka Gandhi v. Union of India, AIR 1978 SC 597, (1978) 1 SCC 248
19
ARTICLE 21 OF THE CONSTITUTION OF INDIA – RIGHT TO LIFE AND PERSONAL
LIBERTY LEGALSERVICEINDIA.COM, https://www.legalserviceindia.com/legal/article-1235-article-21-of-the-
constitution-of-india-right-to-life-and-personal-liberty.html (last visited Oct 7, 2022)
20
Govind v. State of Madhya Pradesh & Anr, 1961 MP 320
21
R Rajagopal and Ors. v. State of Tamil Nadu, 1994 SCC (6) 632
22
B.K Parthasarthi v. Government of Andhra Pradesh & Ors, AIR 2000 AP 156, 1963 AIR 1295
 4. In order to cover postpartum delivery complications for the surrogate, an insurance
policy with 16 months of coverage should be issued.
5. A certificate of essentiality and certificate of eligibility will be issued only if all the
above criteria are fulfilled by the appropriate authority. The couple will become
eligible for altruistic surrogacy through this process.

Eligibility Criteria for Surrogate Mother

1. The surrogate mother should be a close relative of the intending couple

2. Her age must be between 25 and 35 years.
3. She should be a married woman and should have a child of her own.
4. Should possess a certificate of medical and psychological fitness.
5. The surrogate mother should not provide her eggs for surrogacy.

Other Provisions of the Act

1. The clinic providing the surrogacy treatment should be registered under this Act and
the staff of that clinic should be qualified as per the criteria mentioned in the Act.
2. Surrogacy treatment facilities are required to register within 60 days and renew their
registration every 3 years.
3. Commercial surrogacy is completely prohibited. Only altruistic surrogacy is
permissible.
4. Any couple who intends to have a baby through commercial surrogacy shall be fined
up to Rs 50,000/- and imprisoned for 5 years. Further, if the same offense is
committed multiple times, the fine and imprisonment increase to 1 lakh and 10 years,
respectively.
5. Individuals, clinics, or organizations involved in surrogacy or found exploiting
surrogates would be subject to ten years of imprisonment and a fine of Rs 10 lakh.

Why was commercial surrogacy banned?

While surrogacy is beneficial for infertile couples or individuals who want to start a family
but it can also lead to the exploitation of surrogate mothers and surrogate children in the
following ways:-

1. In many cases the surrogate mother is not treated well, they live in appalling
conditions and are often not even paid after giving birth to the child. To get paid they
have to use legal resources and other methods which can be both time-consuming and
expensive. The surrogate mother's body is used only to have a baby and then she is
left without any money which creates mental, physical, and financial agony.
2. Due to the commercialization of surrogacy, there is an increase in child trafficking, as
well as surrogate children, face health-related issues.
3. Surrogacy also has psychological repercussions, in addition to the legal difficulties,
women have been mentally harassed and exploited in many cases23.

23
IS SURROGACY LEGAL IN INDIA - IPLEADERS IPLEADERS, https://blog.ipleaders.in/is-surrogacy-legal-in-india/
#:~:text=Commercial%20surrogacy%20is%20prohibited%20in,with%20the%20laws%20of%20India. (last
visited Oct 8, 2022)
But will banning commercial surrogacy help?

Things that are in demand like liquor shops, prostitution, etc once banned move underground
and it makes them more dangerous, illegal, and unregulated. In the same way, commercial
surrogacy is also in demand, and therefore banning it will not help. Rather strong regulations
should be made to regulate it and prevent the exploitation of young and uneducated women.
And prevent the emergence of the illegal market as well as human trafficking.

Instead of banning, the government could issue a license to the clinics and only those clinics
could offer surrogacy treatment.

Government can also provide free counseling to the surrogate mother. Similarly, an official
non-governmental organization (NGO) can be formed to guide the uneducated woman and to
help her during her 9-month pregnancy24.

A transparent compensation policy should be made between the intending couples and
surrogate mothers so the women will not be left unpaid and in financial distress.

Conclusion and Suggestions

1. Every society recognizes that human beings have a right to procreate. Couples and
individuals who are childless experience many hardships and treatments associated
with infertility.
2. And considering how important the right to procreation is, couples/individuals should
have the right to access assisted human reproductive technologies for conceiving a
child.
3. The government should establish separate courts to deal with cases related to
surrogacy and surrogacy contracts. This will help the government in regulating illegal
surrogacy or unregulated surrogacy treatments, clinics, etc.
4. The right to be an intended parent must be recognized as a part of the right to personal
liberty, the right to privacy, and the right to procreation. But, the government should
have the right to impose reasonable restrictions.
5. The rule regulating surrogacy shall specify clearly the eligibility criteria for an
intended parent. In addition to infertile couples, same-sex couples and individuals
should also be allowed provided that at least one partner contributes genetic material
to a child.
6. The rights and duties of the intended parents should be specified clearly.
7. The right to act as a surrogate for another must be a facet of the right to personal
liberty and privacy of a woman. However, reasonable restrictions can be imposed on
the rights of a woman.
8. The eligibility criteria should include unmarried, married, divorced, or widowed
women. But the age criteria should be specified as above 25 and below 45 years of
age.
9. A surrogate mother should be allowed to bear only 3 children in her lifetime including
her own children. And a surrogate mother must be free from any hereditary or
communicable disease and must be physically and mentally fit to carry a child.
24
ARE 2022 NEW SURROGACY LAWS PATIENT
FRIENDLY? FERTILITYDOST.COM, https://www.fertilitydost.com/articles/article-details/are-2022-new-surrogacy-
laws-patient-friendly (last visited Oct 8, 2022)
 10. The rights and duties of a surrogate mother should also be specified. And they should
be made aware of the same duties and rights in order to avoid the exploitation of such
women.
11. All surrogate contracts, whether altruistic or commercial must be considered valid and
enforceable. Making it illegal will only make its regulation difficult.
12. Surrogacy clinics must be registered, and the intended parents and surrogate women
must be informed of the mandatory vetting requirements25.

25
BABY THROUGH SURROGACY: EVERYTHING YOU NEED TO KNOW ABOUT THE SURROGACY LAWS | LIFESTYLE
HEALTH | ENGLISH MANORAMA ONMANORAMA, https://www.onmanorama.com/lifestyle/health/2022/06/25/
baby-through-surrogacy-india-law.html (last visited Oct 8, 2022)