SURROGACY LAWS IN INDIA AND IN FOREIGN COUNTRIES

Presented By MR SAYANTAN ROY

Surrogacy in India and Indian surrogates became increasingly popular amongst intended
parents in industrialised nations because of the relatively low costs and easy access offered by
Indian surrogacy agencies. Clinics charged patients between $10,000 and $28,000 for the
complete package, including fertilization, the surrogate's fee, and delivery of the baby at a
hospital. Including the costs of flight tickets, medical procedures and hotels, this represented
roughly a third of the price of the procedure in the UK and a fifth of that in the US. Surrogate
mothers received medical, nutritional and overall health care through surrogacy agreements.
In 2005, the government approved the 2002 draft of the National Guidelines for the
Accreditation, Supervision and Regulation of ART Clinics in India, in 2002. Before commercial
surrogacy was banned in 2015, India was a popular destination for surrogacy. The economic
scale of surrogacy in India is unknown, but study backed by the United Nations in July 2012
estimated the business at more than $400 million a year, with over 3,000 fertility clinics across
India
In 2013, surrogacy by foreign homosexual couples and single parents was banned In 2015, the
government banned commercial surrogacy in India and permitted entry of embryos only for
research purposes. Shortly thereafter in 2016, a Surrogacy (Regulation) Bill was introduced and
passed by Lok Sabha, the lower house of the Indian parliament, proposing to permit only
heterosexual Indian couples married for at least five years with infertility problems to access
altruistic or unpaid surrogacy and thereby further banning commercial surrogacy. The 2016 bill
lapsed owing to the adjournment sine die of the parliament session. The bill was reintroduced and
passed by the Lok Sabha in 2019. The bill would require to be passed by the Rajya Sabha, upper
house of the Indian parliament and presidential assent before it becomes an act and thereby a law.
A traditional surrogate is a woman who gets artificially inseminated with the father's sperm. She then
carries the baby and delivers it for you and your partner to raise. A traditional surrogate is the baby's
biological mother. That's because it was her egg that was fertilized by the father's sperm.
What is the difference between traditional and gestational surrogacy?
The main difference between gestational and traditional surrogacy is simple: in traditional
surrogacy, the surrogate's eggs are used, making her the biological mother of the child she carries;
in gestational surrogacy, the surrogate has no biological link to the baby.

Is traditional surrogacy legal in India?

Traditional Surrogacy or straight surrogacy is a procedure which involves the artificial or natural
insemination and then carries the baby till the delivery. ... Gestational Surrogacy is the only form of
surrogacy which is allowed in India.

In gestational surrogacy, the child is not biologically related to the surrogate mother, who is often
referred to as a gestational carrier. Instead, the embryo is created via in vitro fertilization (IVF), using the
eggs and sperm of the intended parents or donors, and is then transferred to the surrogate.

What is the difference between traditional and gestational surrogacy?

The main difference between gestational and traditional surrogacy is simple: in traditional
surrogacy, the surrogate's eggs are used, making her the biological mother of the child she carries;
in gestational surrogacy, the surrogate has no biological link to the baby.

Altruistic surrogacy refers to those surrogacy agreements where the surrogate does not receive
monetary compensation. In most altruistic surrogacy agreements, the surrogate is a close relation to
the intended parents (family member/close friend).Apr 7, 2017

Commercial Surrogacy vs. Altruistic Surrogacy

APRIL 7, 2017 BY WORLDWIDE SURROGACY SPECIALISTS

What we commonly refer to as “surrogacy” in America is often called “commercial surrogacy” abroad. Commercial
surrogacy is not an option in many other countries. Some countries will only permit altruistic surrogacy agreements.

Altruistic Surrogacy

Altruistic surrogacy refers to those surrogacy agreements where the surrogate does not receive monetary
compensation. In most altruistic surrogacy agreements, the surrogate is a close relation to the intended parents
(family member/close friend).

Within the last two years, a story fromAustralia reached headlines about a positive altruistic surrogacy arrangement
between strangers. The gestational surrogate decided she wanted to give back to someone faced with reproductive
challenges. She connected with a family struggling to have a second child and agreed to be their gestational
surrogate. This was a rare scenario.
Entering into an altruistic surrogacy with a known surrogate (i.e. family member, close friend) is a celebrated
experience. However, even when the surrogate in an altruistic agreement is a close relation, complications or
unforeseen expenses may arise.

Commercial Surrogacy

A commercial gestational surrogacy agreement includes a pre-determined monetary compensation to the surrogate,
in addition to covering medical costs, etc.

Some online forums praise altruistic surrogacies and criticize commercial surrogacy agreements. Arguments are
posted that accuse commercial surrogacy of using women’s wombs for profit, demoralizing the surrogates and
sending “motherless” babies into the world.

Most experienced gestational surrogates’ stories and testimonies prove the above mentioned criticisms are
unfounded. Experienced gestational surrogates rave about the empowering act of selflessness they felt entering into
the commercial gestational surrogacy agreement. A commercial gestational surrogacy also provides the intended
parents a sense of involvement in the surrogacy, through agreed to terms in the surrogacy contract (i.e. if there is a
certain diet they would like the surrogate to follow, anything they would like the surrogate to abstain from, etc.).

Gestational surrogates in a commercial surrogacy agreement are also supported by the services the surrogacy
agency provides throughout the experience. Part of the screening process helps perspective surrogates fully
understand what will be expected of them to ensure this is truly what they want. A social worker and experienced
surrogate advocate will help the gestational surrogate throughout the process, including post-delivery when it may be
needed.

Celebrate Surrogacy

Any successful surrogacy where intended parents get their child is worth celebrating. An altruistic surrogacy with a
close friend or family member can be a wonderful experience, but it is not always an option. Commercial surrogacy
agreements are positive, noble acts of generosity gifted from the gestational surrogate to the intended parents,
regardless of the monetary compensation the surrogate earned. It is important to remember that the monies paid to
the surrogate are hardly the equivalent of ten months’ salary.

More importantly, it is important to remember the physical toll the pregnancy will have on the surrogate, including any
complications that may arise. No amount of money can make up for it. The value comes from the feelings of
selflessness and kindness a gestational surrogate can experience having given the greatest possible gift, a child to
someone who could not have the baby without the commercial surrogate’s help.

What is the difference between commercial and altruistic surrogacy?

There are two types of arrangements, commercial and altruistic. Commercial surrogacy is where a
surrogate is paid for carrying the child. ... Altruistic surrogacy is when a surrogate is given no financial
gain for carrying a child. Only realistic out of pocket expenses are covered by the intended parents.
Is surrogacy banned in India?
Surrogacy in India. ... In 2013, surrogacy by foreign homosexual couples and single parents
was banned. In 2015, the government banned commercial surrogacy in India and permitted entry of
embryos only for research purposes.

Is surrogacy bill passed?

The Surrogacy (Regulation) Bill 2019, was introduced in the Upper House on Tuesday by Union Health
Minister Harsh Vardhan. It has been passed by the Lok Sabha in the Monsoon Session. ... He also asked
the government to let Non Resident Indians (NRIs) opt for surrogacy in India under the provisions of
the legislation.

Rajya Sabha members on Wednesday sought changes in certain provisions of the Surrogacy
(Regulation) Bill 2019, which mandates that only a close relative can be a surrogate mother and
provisions of five years of marriage for commissioning parents.

Although the bill was supported by most members cutting across the party line, modifications were
sought in provisions such as time frame for abortion, time limit of age and prior informed consent,
among others.

Some of the members also sought provisions for allowances and insurance along with maternity
leave for the surrogate mother, besides relaxation in numbers of surrogacy.

The Surrogacy (Regulation) Bill 2019, was introduced in the Upper House on Tuesday by Union
Health Minister Harsh Vardhan. It has been passed by the Lok Sabha in the Monsoon Session.

Participating in the debate, Jairam Ramesh said that it was a "very complicated bill" and the
government should get an amended bill passed after considering the suggestions of the members.

"It is very complicated bill. We all agree that surrogacy should be regulated but in what form, it is still
debated," he said, adding that the bill should have come after the Assisted Reproductive Technology
(ART) bill as the government is "dealing with surrogacy but not dealing with the technology of
surrogacy".

P Wilson of the DMK said the bill has provisions for permission for abortion within 90 days, but
sometimes there are cases of medical emergency, and surrogate mother cannot wait for such
period.

There should be provision of post-approval as well, he said.

"The bill also has provision of 10 years of punishment with non-bailable warrant in case of violation.
This is not a heinous crime," he added.

V Vijaysai Reddy of the YSRCP, while supporting the bill, sought clarity as in which close relatives of
the couple opting for surrogacy could be considered for the procedure under the provisions of the bill.

He also asked the government to let Non Resident Indians (NRIs) opt for surrogacy in India under
the provisions of the legislation.

Manoj Kumar Jha (RJD) pointed out that the bill was silent on same-sex couples and people who
were in live -in relationships.

Aam Aadmi Party's Sushil Kumar Gupta said the bill has been brought in order to stop the
exploitation of surrogate mothers, but in the current form would end up exploiting them more.

He sought medical aid, insurance and other benefits for women who opt to be surrogate
mothers.

Vikas Mahatme of the BJP said that with passing of the bill in Parliament, the exploitation of poor
surrogate mothers would end in the country.

The bill would make it mandatory for the parents to take the child and not abandon even if the
gender is not to their liking, he said.

Congress's Amee Yajnik said the bill is much needed but in the current form contains various
gaps.

She said that there were about 3,000 clinics in the country dealing with surrogacy and the bill is
silent as how these would be regulated.

She asked for a clear definition of close relative in the bill who could be a surrogate mother.

"It is a much needed bill but it should not be brought in a haste. We need to see what is the view of
the Law Commission. Also other stakeholders are needed to be consulted," she said.

Binoy Viswam of the CPI said that the bill is made for all human beings and certain section of the bill
are restrictive.
BJP's D P Vats suggested that the government should only appoint doctors on the board, which
would be formed to regulate it at the state and national-level.

Banda Prakash of the TRS suggested that there should be provision of wages, food, maternity leave
for the government employees, if she is a surrogate.

Chhhaya Verma of the Congress said there should be provision of insurance for the surrogate
mother. Moreover, live-in couples should also be included.

C P Thakur of the BJP said that it should not be made so strict that nobody goes for it.

Vijila Sathyanath of the DMK opined that there should not be a wait period of five years in case of
late marriages. It should also has provisions for compensation for nourishing food, nutrition for the
surrogate and the baby.

Lal Singh Vadodia said that in India on an average, one in every 4,000 female has no uterus and in
such cases, there is no need to wait for five years.

Gopal Singh (BJP), Harshvardhan Singh Dungarpur (BJP), Gopal Narayan Singh (BJP) and Jugal
Singh Mathurji (BJP) also participated in discussion on the issue.

The bill seeks to ban commercial surrogacy, provides to set up surrogacy boards at national and
state levels, as well as that the intending couples should not abandon such a child under any
condition.

Only Indian couples who have been legally married for at least five years would be allowed to opt for
surrogacy, as per the Statement of Objects and Reasons of the bill.

The bill seeks to "allow ethical altruistic surrogacy to the intending infertile Indian married couple
between the age of 23-50 years and 26-55 years for female and male, respectively".

In 2015, the government banned commercial surrogacy in India and permitted entry of embryos only
for research purposes. ... The bill would require to be passed by the Rajya Sabha, upper house of
the Indian parliament and presidential assent before it becomes an act and thereby a law.

Indian Council for Medical Research guidelines

The Indian Council for Medical Research has given guidelines in the year 2002, approved by the government in 2005,
regulating Assisted Reproductive Technology procedures. The Law Commission of India submitted the 228th report
[7]

on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the
steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:
 Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the
terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members
for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for
carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such
an arrangement should not be for commercial purposes.
 A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the
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 child.
 A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
 One of the intended parents should be a donor as well, because the bond of love and affection with a child
primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have
been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a
donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if
biological (natural) parents and adoptive parents are different.
 Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s)
without there being any need for adoption or even declaration of guardian.
 The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s)
 only. Right to privacy of donor as well as surrogate mother should be protected.
 Sex-selective surrogacy should be prohibited.
 Cases of abortion should be governed by the Medical Termination of Pregnancy Act 1971 only.

Proposed legislations
Assisted Reproductive Technology Bill, 2013
The Assisted Reproductive Technology Bill, 2013 has a been pending for quite a while and it has not been presented
in the Indian Parliament. It will not allow commercial surrogacy that involves exchange of money for anything other
than paying for medical expenses for the mother and the child. [25]

The bill would prohibit these from surrogacy: couples already having one child, foreigners or Overseas Citizens of
India (OCI), holders as well as live-in-Partners, single people, homosexuals and widows. There has been significant
criticism of the bill.
[26]

Surrogacy (Regulation) Bill, 2016 and 2019

In 2016, a Surrogacy (Regulation) Bill was introduced and passed by Lok Sabha, the lower house of the
[10]

Indian parliament, proposing to permit only Indian heterosexual couples married for at least five years with
infertility problems to access altruistic or unpaid surrogacy and thereby banning commercial surrogacy. [13]

The 2016 bill lapsed owing to the adjournment sine die of the parliament session. The bill was
[11] [12]

reintroduced and passed by the Lok Sabha in 2019. The bill would require to be passed by the Rajya
[13][14]

Sabha, upper house of the Indian parliament and presidential assent before it becomes an act and thereby a
law.[15]

When the Surrogacy (Regulation) Bill, 2019 was introduced in the Rajya Sabha, Health Minister
Harsh Vardhan termed it a 'game-changer'. It is, after all, the first time that surrogacy is being aimed
to be regulated in the country.

The surrogacy bill proposes a complete ban on commercial surrogacy – where the procedure is
undertaken for monetary gain – but allows altruistic surrogacy, which involves no monetary
compensation to the surrogate mother other than medical expenses and insurance coverage during the
pregnancy. It says that no money can be paid except “the medical expenses incurred on surrogate
mother and the insurance coverage for the surrogate mother”. The surrogate must be a “close
relative” of the couple.
What Does the Bill Entail?

The bill bans commercial surrogacy and the sale or import of human embryo for the purpose of
surrogacy. It proposes mandatory registration of ‘surrogacy clinics’ -- those conducting the procedure
in any form.

The bill has warranted ‘eligibility criteria’ for the surrogate mother as well as for the intending
couple.

The couple must have a ‘certificate of essentiality’ and from the concerned authority which would
ensure that the couple is infertile, give them the custody of the surrogate child, and cover medical
expenses of the surrogate mother.

For a couple to be able to adopt, they have to be Indian citizens and married for at least five years –
the wife belonging to an age group of 23 to 50 years and the husband belonging to age group of 26 to
55 years.

In addition, the surrogate mother needs to be – i) a close relative of the intending couple; ii) a
married woman having a child of her own; iii) 25 to 35 years old; iv) a surrogate only once in her
lifetime; and v) possess a certificate of medical and psychological fitness for surrogacy. Further, the
surrogate mother cannot provide her own gametes for surrogacy.

Contravention of the bill can invite imprisonment up to 10 years and fine up to Rs 10 lakh.

Activists and experts have argued that the bill has several potential blind spots, including the
mandate that only "close relatives" can become surrogate mothers, which doesn't take into account
the patriarchal nature of many family relations in the country and the mandate that only a man and
women, married for five years, can commission surrogates. This, experts, pointed out, discriminated
against not just homosexual marriages, but also those who marry late and couples in live-in
relationships.

Meanwhile, the opposition, on Wednesday, asked the government to come out with the definition of
“close relative” who can be a surrogate mother and suggested that the “changing reality” be included
in the Surrogacy Bill, 2019, and single parents, trans-genders and live-in couples, too, be included in
the ambit of commissioning parents.

Congress’s Jairam Ramesh said that the government should get an amended bill passed after
considering the suggestions of the members. He also suggested that the bill should have come after
the Assisted Reproductive Technology bill as the government was “dealing with surrogacy but not
with the technology of surrogacy”.

If the bill is passed in its current state, what happens?

1.If an Indian woman or man is married to a foreign citizen not residing in India, they will not be
able to have surrogacy. The bill entails that the couple is Indian citizens.

2.Couples who are not married cannot avail surrogacy — this means widows, divorcees, single
parents, live-in partners, and homosexual couples are completely left out.
3.Many experts argue that the “close relative” clause for surrogate mother could lead to coercion and
further exploitation of women due to the patriarchal nature of the Indian family system. It may even
lead to domestic violence. The definition of 'close relative' also remains unclear. SP leader Ram
Gopal Yadav had said that the close relative clause for choosing a surrogate can lead to property
disputes later on and other related issues in a family.

4.Experts also argue that the Bill is "inflexible" and privileged an "archaic family system" that is not
in sync with present reality. The parliamentary committee, for instance, that analysed the bill had
opposed an outright ban, arguing that the bill in the present form was "moralistic" and robbed women
of agency.

5.A lot of activists also pointed out that five years is too long a term for couples to be allowed to
have surrogacy. They point out that couples who marry at a later age or perhaps are married more
than once will have difficulty with this clause.

6.Congress MP MV Rajeev Gowda had disagreed with the clause that demands the couple to
certified as ‘infertile’. Gowda said, "The minister [Harsh Vardhan] himself is a doctor and knows
that there are reasons proven, which are beyond infertility such as absence of a normal uterus,
recurrent miscarriage etc, where it is unsafe for a woman to bear a child."

Judicial pronouncements

Baby Manji Yamada v. Union of India (2008)

In 2008, a baby (Manji Yamada) born through surrogacy was unable to leave India for three months after her birth
because she held neither Indian nor Japanese nationality. The case came before the Supreme Court of India. The [16]

issue was resolved after the Japanese government issued a one-year visa to her on humanitarian grounds. The
Japanese government issued the visa after the Indian government granted the baby a travel certificate in September
2008 in line with a Supreme Court direction. [17]

Jan Balaz v. Anand Municipality and ors. (2009)

In 2009 in Jan Balaz v. Anand Municipality and ors., 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.
Because India does not offer dual citizenship, the children will have to convert to Overseas Citizenship of India if they
also hold non-Indian citizenship. Balaz, the petitioner, submitted before the Supreme Court that he shall be
]

submitting his passports before the Indian Consulate in Berlin. He also agreed that a NGO in Germany shall respond
back to India on the status of the children and their welfare. The Union of India responded that India shall make all
attempts to have the children sent to Germany. German authorities have also agreed to reconsider the case if
approached by the Indian
In May 2010, the Balaz twins were provided the exit and entry documents that allowed them to leave India for
Germany. The parents agreed to adopt them in Germany according to German rules.

Surrogacy risk and conditions in India

According to The Guardian, a surrogate mother died because she didn't get the proper medical attention.
Conservative estimates show that more than 25,000 children are now being born through surrogates in India every
[24]

year in an industry worth $2 billion. Domestic demand is increasing, but as fertility levels drop elsewhere, at least
[24]

50% of these are "commissioned" by overseas, mainly western, couples. Most of the industry is operating
[24]
unchecked. India's medical research watchdog drafted regulations more than two years ago, yet they still await
presentation in parliament, leaving the surrogates and baby factories open to abuse. According to Dr. Manish
[24]

Banker, from the Pulse Women's Hospital and Dr. Yugal Kishore Upadhyay from IAS Medicare reported to come
back on a patient, "She suddenly had a convulsion and fell on the floor," he said. "We immediately took her for
treatment. Since she was showing signs of distress, we conducted an emergency cesarean section delivery." [24]

Indian Council for Medical Research guidelines

The Indian Council for Medical Research has given guidelines in the year 2002, approved by the government in 2005,
regulating Assisted Reproductive Technology procedures The Law Commission of India submitted the 228th report
on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the
steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:

 Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the
terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members
for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for
carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such
an arrangement should not be for commercial purposes.
 A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the
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 child.
 A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
 One of the intended parents should be a donor as well, because the bond of love and affection with a child
primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have
been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a
donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if
biological (natural) parents and adoptive parents are different.
 Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s)
without there being any need for adoption or even declaration of guardian.
 The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s)
 only. Right to privacy of donor as well as surrogate mother should be protected.
 Sex-selective surrogacy should be prohibited.
 Cases of abortion should be governed by the Medical Termination of Pregnancy Act 1971 only.

Proposed legislations
Assisted Reproductive Technology Bill, 2013
The Assisted Reproductive Technology Bill, 2013 has a been pending for quite a while and it has not been presented
in the Indian Parliament. It will not allow commercial surrogacy that involves exchange of money for anything other
than paying for medical expenses for the mother and the child. [25]

The bill would prohibit these from surrogacy: couples already having one child, foreigners or Overseas Citizens of
India (OCI), holders as well as live-in-Partners, single people, homosexuals and widows. There has been significant
criticism of the bill.
[26]

Surrogacy (Regulation) Bill, 2016 and 2019

In 2016, a Surrogacy (Regulation) Bill was introduced and passed by Lok Sabha, the lower house of the Indian
[10]

parliament, proposing to permit only Indian heterosexual couples married for at least five years with infertility
problems to access altruistic or unpaid surrogacy and thereby banning commercial surrogacy. The 2016 bill
[13][11]

lapsed owing to the adjournment sine die of the parliament session. The bill was reintroduced and passed by the
[12]

Lok Sabha in 2019. The bill would require to be passed by the Rajya Sabha, upper house of the Indian parliament
[13][14]

and presidential assent before it becomes an act and thereby a law. [15]

References
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^ Jump up to: a b
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^ "Baby Manji Yamada v. Union of India and another". Supreme Court Cases. 13: 518. 29
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^ Yamada, Manji (3 November 2008). "India-born surrogate baby arrives to unite with Japanese dad". Zee
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^ "Jan Balaz v. Anand Municipality and others". SCC OnLine Guj: 10446. 11 November 2009. Retrieved 22
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^ Nagarajan, Rema (29 September 2006). "OCI just a recognition of Indian roots: Vayalar". The Times of
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 "Overseas Citizenship of India (OCI)". mha.nic.in. Ministry of Home Affairs, Government of India.
Archived from^theSee:
original on 26 September 2009. Retrieved 18 November 2009.
 "Diaspora Services: Overseas Citizenship of India Scheme". moia.gov.in. The Ministry of Overseas
Indian Affairs (MOIA), Government of India. Archived from the original on 4 May 2012.
  "What is the basic difference between an NRI/PIO/PIO Card Holder and an OCI?". oifc.in. Overseas
Indian Facilitation Centre. Archived from the original on 16 December 2009. Retrieved 19 November 2009. A not for
profit public private initiative of The Ministry of Overseas Indian Affairs (MOIA) and Confederation of Indian Industry
(CII), was launched on 28 May 2007.
22. ^ "Kerla State allows maternity leave for parents through surrogacy (blog)".
blog.indiansurrogacylaw.com.
Indian Surrogacy Law Centre. 30 January 2016. Archivedfrom the original on 6 August 2009. Retrieved 20
September 2019.

The Surrogacy (Regulation) Bill, 2019

Ministry Of Health and Family Welfare

 The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare, Dr.
Harsh Vardhan in Lok Sabha on July 15, 2019. The Bill defines surrogacy as a practice where a woman gives
birth to a child for an intending couple with the intention to hand over the child after the birth to the
intending couple.

 Regulation of surrogacy: The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.
Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical
expenses and insurance coverage during the pregnancy. Commercial surrogacy includes surrogacy or its
related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic
medical expenses and insurance coverage.

 Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending
couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for
producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or
disease specified through regulations.

 Eligibility criteria for intending couple: The intending couple should have a ‘certificate of
essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.

 A certificate of essentiality will be issued upon fulfilment of the following conditions: (i) a certificate of
proven infertility of one or both members of the intending couple from a District Medical Board; (ii) an
order of parentage and custody of the surrogate child passed by a Magistrate’s court; and (iii) insurance
coverage for a period of 16 months covering postpartum delivery complications for the surrogate.

 The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions: (i)
the couple being Indian citizens and married for at least five years; (ii) between 23 to 50 years old (wife)
and 26 to 55 years old (husband); (iii) they do not have any surviving child (biological, adopted or
surrogate); this would not include a child who is mentally or physically challenged or suffers from life
threatening disorder or fatal illness; and (iv) other conditions that may be specified by regulations.

 Eligibility criteria for surrogate mother: To obtain a certificate of eligibility from the appropriate
authority, the surrogate mother has to be: (i) a close relative of the intending couple; (ii) a married woman
having a child of her own; (iii) 25 to 35 years old; (iv) a surrogate only once in her lifetime; and (v) possess
a certificate of medical and psychological fitness for surrogacy. Further, the surrogate mother cannot
provide her own gametes for surrogacy.

 Appropriate authority: The central and state governments shall appoint one or more appropriate
authorities within 90 days of the Bill becoming an Act. The functions of the appropriate authority include;
(i) granting, suspending or cancelling registration of surrogacy clinics; (ii) enforcing standards for surrogacy
clinics; (iii) investigating and taking action against breach of the provisions of the Bill; (iv) recommending
 modifications to the rules and regulations.

 Registration of surrogacy clinics: Surrogacy clinics cannot undertake surrogacy related procedures
unless they are registered by the appropriate authority. Clinics must apply for registration within a period
of 60 days from the date of appointment of the appropriate authority.

 National and State Surrogacy Boards: The central and the state governments shall constitute the
National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively. Functions of the NSB
include, (i) advising the central government on policy matters relating to surrogacy; (ii) laying down the
code of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.

 Parentage and abortion of surrogate child: A child born out of a surrogacy procedure will be
deemed to be the biological child of the intending couple. An abortion of the surrogate child requires the
written consent of the surrogate mother and the authorisation of the appropriate authority. This
authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971. Further, the
surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her
womb.

 Offences and penalties: The offences under the Bill include: (i) undertaking or advertising commercial
surrogacy; (ii) exploiting the surrogate mother; (iii) abandoning, exploiting or disowning a surrogate child;
and (iv) selling or importing human embryo or gametes for surrogacy. The penalty for such offences is
imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill specifies a range of offences and
penalties for other contraventions of the provisions of the Bill.

The Surrogacy (Regulation) Bill, 2019 seeks to ban all forms of commercial surrogacy
and women who agree to be surrogates must do so for “altruistic” reasons and must
be “close relatives” of the recipients Dr KK Aggarwal
The Surrogacy (Regulation) Bill, 2019, which was passed by the Lok Sabha in July, has now been
sent to the select committee of the Rajya Sabha for a review. The Bill seeks to put a complete
ban on commercial surrogacy, while placing stringent regulations on altruistic surrogacy. The fact
that it has been sent to the select committee means it still requires thorough debate. Excerpts
from the Bill:

Preamble: To constitute National Surrogacy Board, State Surrogacy Boards and appointment of
appropriate authorities for regulation of the practice and process of surrogacy and for matters
connected therewith or incidental thereto.

“Surrogacy” means a practice whereby one woman bears and gives birth to a child for an
intending couple with the intention of handing over such child to the intending couple after the
birth;

“Altruistic surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or
monetary incentive of whatever nature, except the medical expenses incurred on surrogate
mother and the insurance coverage for the surrogate mother, are given to the surrogate mother
or her dependents or her representative;
“Commercial surrogacy” means commercialisation of surrogacy services or procedures or its
component services or component procedures including selling or buying of human embryo or
trading in the sale or purchase of human embryo or gametes or selling or buying or trading the
services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration
or monetary incentive in cash or kind, to the surrogate mother or her dependents or her
representative;

“Couple” means the legally married Indian man and woman above the age of 21 years and 18
years respectively;

“Intending couple” means a couple who have been medically certified to be an infertile couple
and who intend to become parents through surrogacy;

“Surrogate mother” means a woman bearing a child (who is genetically related to the intending
couple) through surrogacy from the implantation of embryo in her womb and fulfils the
conditions as provided in sub-clause (b) of clause (iii) of section 4;

When Surrogacy Is Permitted: Surrogacy is permitted when it is: (i) for intending couples who
suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv)not for
producing children for sale, prostitution or other forms of exploitation; and (v) for any condition
or disease specified through regulations.

“Insurance”—an arrangement by which a company, individual or intending couple undertake to

provide a guarantee of compensation for specified loss, damage, illness or death of surrogate
mother during the process of surrogacy.

Insurance coverage: This is the amount as may be prescribed in favour of the surrogate mother
for a period of 16 months covering postpartum delivery complications from an insurance
company or an agent recognised by the Insurance Regulatory and Development Authority.

Surrogate mother is in possession of an eligibility certificate issued by the appropriate authority

on fulfilment of the following conditions:

(I)no woman, other than an ever-married woman having a child of her own and between the
age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in
surrogacy by donating her egg or oocyte or otherwise;

(II)no person, other than a close relative of the intending couple, shall act as a surrogate
mother and be permitted to undergo surrogacy procedures as per the provisions of this Act;
(III) no woman shall act as a surrogate mother by providing her own gametes;

(IV)no woman shall act as a surrogate mother more than once in her lifetime: Provided that the
number of attempts for surrogacy procedures on the surrogate mother shall be such as may be
prescribed; and

(V)a certificate of medical and psychological fitness for surrogacy and surrogacy procedures
from a registered medical practitioner.

Eligibility certificate for intending couple: This is issued by the appropriate authority on fulfilment
of the following conditions:

(VI)the age of the intending couple is between 23 to 50 years in case of female and between 26
to 55 years in case of males on the day of certification;

(VII)the intending couple are married for at least five years, and are Indian citizens;

(VIII)the intending couple have not had any surviving child biologically or through adoption or
through surrogacy earlier: Provided that nothing contained in this item shall affect the intending
couple who have a child and who is mentally or physically challenged or suffers from life
threatening disorder or fatal illness with no permanent cure and approved by the appropriate
authority with due medical certificate from a District Medical Board; and (IV) such other
conditions as may be specified by the regulations.

Appropriate authority: The central and state governments shall appoint one or more appropriate
authorities within 90 days of the Bill becoming an Act. The functions of the appropriate authority
include (i) granting, suspending or cancelling registration of surrogacy clinics; (ii) enforcing
standards for surrogacy clinics; (iii) investigating and taking action against breach of the
provisions of the Bill; (iv) recommending modifications to the rules and regulations.

Registration of surrogacy clinics: Surrogacy clinics cannot undertake surrogacy related

procedures unless registered by the appropriate authority.

National and State Surrogacy Boards: The central and the state governments shall constitute the
National Surrogacy Board (NSB) and the State Surrogacy Boards (SSBs), respectively. Functions
of the NSB include (i) advising the central government on policy matters relating to surrogacy;
(ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning of
SSBs.
Parentage and abortion of surrogate child: A child born out of a surrogacy procedure will be
deemed to be the biological child of the intending couple.

No surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist,

intending couple or any other person shall conduct or cause abortion during the period of
surrogacy without the written consent of the surrogate mother and on authorisation of the same
by the appropriate authority concerned: Provided that the authorisation of the appropriate
authority shall be subject to, and in compliance with, the provisions of the Medical Termination of
Pregnancy Act, 1971.

Sex Selection: No surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician,

embryologist, intending couple or any other person shall in any form conduct or cause to be
conducted sex selection for surrogacy.

Offences and penalties: (i) undertaking or advertising commercial surrogacy; (ii) exploiting the
surrogate mother; (iii) abandoning, exploiting or disowning a surrogate child; and (iv) selling or
importing human embryo or gametes for surrogacy. The penalty for such offences is
imprisonment up to 10 years and a fine up to 10 lakh rupees.

Some issues continue to remain unsolved. Among them are:

1. Medical expenses: This has not been defined. Medical expenses may include home care (physical,
mental, social).
2. Close relative is the surrogate mother and has not been defined.
3. The intending couple are married for at least five years and are Indian citizens. It denies surrogacy
for residents of Indian origin living abroad but are close relatives. Five years is also an arbitrary
figure and not based on any science.
Any registered medical practitioner, gynaecologist, paediatrician, embryologist or any person
who owns a surrogacy clinic or employed with such a clinic or centre or laboratory and renders
his professional or technical services to or at such clinic or centre or laboratory, whether on an
honorary basis or otherwise, and who contravenes any of the provisions of the Act (other than
the provisions referred to in section 35) and rules and regulations made thereunder shall be
punishable with imprisonment for a term which may extend to five years and with fine which
may extend to ten lakh rupees. The words of any of the provisions of this Act will include clerical
mistakes and will be detrimental to the medical profession, like the Pre-Natal Diagnostic
Techniques Act.
Medical doctors are covered under MCI ethics and clinical establishments under the Clinical
Establishments Act. IMC Act rule 7.3 had provisions for permanent deletion of a doctor if he/she
is found indulging in sex determination.

I feel the surrogacy Act can be covered under amendments of the IMC Act and ethics rules under
MCI as far as involvement of doctors is concerned.

MCI Ethics rules: 7.21: No act of invitro-fertilisation or artificial insemination shall be undertaken
without the informed consent of the female patient and her spouse as well as the donor. Such
consent shall be obtained in writing only after the patient is provided, at her own level of
comprehension, with sufficient information about the purpose, methods, inconveniences,
disappointments of the procedure and possible risks and hazards.

7.6: Sex Determination Tests: On no account sex determination test shall be undertaken with
the intent to terminate the life of a female foetus developing in her mother’s womb, unless there
are other absolute indications for termination of pregnancy as specified in the Medical
Termination of Pregnancy Act, 1971. Any act of termination of pregnancy of normal female
foetus amounting to female foeticide shall be regarded as professional misconduct on the part of
the physician leading to penal erasure besides rendering him liable to criminal proceedings as
per the provisions of the Act.

On February 1, 2016, the Bombay High Court directed the Central Railway to grant maternity
leave to one of its employees who became a mother by using a surrogate. A Division Bench of
Justices Anoop Mehta and GS Kulkarni ruled that a mother enjoys the same benefits of maternity
leave as any other working woman under the Child Adoption Leave and Rules. “There is nothing
in the rules that disentitles maternity leave to a woman who has attained motherhood through
surrogacy procedure,” the court added.

Who can avail of the leave? The mother or the intended mother? This is just one of the several
aspects on which the Surrogacy (Regulation) Bill, 2019 remains silent.

—The author is president Heart Care Foundation of India and Confederation of Medical
Associations of Asia and Oceania

ASIA

FEBRUARY 27, 2020 / 1:52 AM / 2 MONTHS AGO

India eases planned surrogacy
curbs after criticism



NEW DELHI (Thomson Reuters Foundation) - India’s cabinet on Wednesday

approved a bill that would restrict the use of surrogate mothers to married
couples and single women and allow payments only for medical expenses,
seeking to curb exploitation.

The new bill replaces an earlier version that limited the service to infertile
Indian couples, who could ask only a female relative. That version failed to
clear the upper house of parliament, with critics saying it was too restrictive.

India is currently one of only a handful of countries where a woman can be

paid to carry another’s child, making it a hub for surrogacy.

Women’s rights activists say that has put poor, uneducated women at risk of
exploitation by the rich, and the government has been trying to crack down on
unethical commercial practices. Surrogacy for foreigners was banned in 2015.

Women and children’s minister Smriti Irani said the new bill would ensure
married Indian or Indian-origin couples and single, widowed and divorced
women could still use a surrogate to carry their baby.

“If the woman is a widow or divorcee, she has the right to opt for surrogacy,”
she said at a news conference.

The new bill incorporates recommendations from an upper house

parliamentary panel, including increasing insurance cover for surrogates from
16 months to 36.

Until it clears parliament, India remains among a handful of places, including

Russia, Ukraine and some U.S. states, where paid surrogacy is legal.

Full details of the bill were not immediately available and it was not clear
whether single men and LGBT+ couples would be eligible. The ministry did
not respond to the Thomson Reuters Foundation’s requests for clarification.

Over the years, surrogacy has found greater acceptance in India.

 Earlier this month, Bollywood actress Shilpa Shetty became the latest
celebrity to have a baby through a surrogate.

Actors Aamir Khan and Shah Rukh Khan have also had children through
surrogacy.

Countries where surrogacy is legal

Gestational Surrogacy is currently possible in the following countries:

Ukraine
Ukraine is one of the countries where surrogacy is regulated in detail in national law.

In Ukraine, married heterosexual couples with fertility problems can carry out the process, provided that they contribute
genetic material (at least one members of the couple). Normally, the male contributes the genetic material while the
female proves the impossibility of or serious health risks associated with pregnancy by way of a medical certificate.

We have one of our headquarters in Kiev, and are right beside clients every step of the way. Being located in Kiev also
allows us to have direct contact not only with our clients but also with clinics and, most importantly, with surrogate
mothers. Once the child is born we may need various declarations from the surrogate mother, whether in relation to the
adoption procedure in the couple’s home country, for parental recognition criteria at the couple home country’s embassy
or even for maternity or paternity leave.

Georgia
This is another country where surrogacy is legal, with the exact same legal status as in Ukraine. However, there have
been few cases of surrogate pregnancy in Georgia.

Russia
Just like in Ukraine, surrogacy in Russia is legal, and the country has lots of experience and legal guarantees. Russia
as a country has a stronger economy than Ukraine, and this doesn’t go unnoticed in terms of customer care and
clinics.

In Russia, the process can be carried out by heterosexual couples and single parents, but here it is not necessary for the
couple to be married or for a parent to contribute genetic material. We are the only law firm in the world to obtain Russian
citizenship for newborns in cases with intended parents not genetically related to the baby. Therefore, we always succeed
in returning to the couple’s home country without any complications and obtain recognition of the couple’s citizenship
for the child through the “parentage and/or residency permission” clause (and/or other clauses depending on the home
country’s legislation). For single parent cases, we are the only law firm in Europe able to achieve recognition of this
parentage only and exclusively in favour of the intended parent, and consequently the child will not bear the name of the
Russian birth mother.
Intraius’s founder has won, and continues to win, some of Russia’s most complex cases. Intraius has a headquarters in
Moscow, allowing us to be right beside our clients every step of the way and in contact with clinics and surrogate
mothers, which really helps our work when it comes to initiating court hearings and formalities in the home country (if it
was the case).

Kazakhstan
The legal and de facto situation in Kazakhstan is very similar to that of Russia, however prices are similar to those in
the United States, which makes it a somewhat unattractive country where there are hardly any cases of surrogacy.

USA
Surrogacy is legal in some USA, but not all of them. In most of these states, there is no surrogacy law; the child’s
parentage is recognised by a judge during the surrogate mother’s pregnancy (usually during the sixth month). The judge
bases their decision on the agreement of the parties and the precedents set by the US Courts (according to the Anglo-
Saxon Common Law system). For this reason, it is essential to carefully choose the state where the surrogacy process will
be carried out.

The USA is one of the pioneer countries in surrogacy. In fact, it was the first country in the world to recognise intended
parentage in the surrogate pregnancy process. That is to say, is was the first country to change the classic idea of
recognition (traditionally in favour of the birth mother), recognising legal parentage in favour of the parents who will raise
the baby who, ultimately, are those who will educate, feed, and care for the child.

Any kind of client can carry out the surrogacy process, that is to say heterosexual couples, homosexual couples, single
men or women and unmarried couples, and it is not necessary to contribute any genetic material.

Judicial decision and the application of ius soli (the right of minors to an American passport) are legal guarantees that,
in some cases, can solve problems relating to registration or the child’s return to the home country.

Greece
Surrogacy has been legal in Greece for some years. Originally, only Greeks could use this means of assisted reproduction,
but now the process is also open to foreigners. Greek law only grants women the right to surrogacy. No single men have
this right
– only heterosexual couples and single mothers. It is not necessary to contribute genetic material.

Greece is one of the few countries where parentage is decided by judicial decision, and therefore it is possible to
recognize parentage of either both intended parents or just the single commissioning mother.

Mexico
Mexico is a federal state and each state has its own civil, criminal and prosecution code. Surrogacy is not regulated in all
states, but only in Tabasco and Sinaloa where it is allowed only to Mexican citizens. In the other states it is not prohibited,
it is simply not regulated and there are regulatory gaps.

In Mexico Distrito Federal, on the basis of what is established by the local civil code and the Mexican Constitution, a
judgment (authorization) is obtained by granting to the interested parties the right to initiate a surrogacy program and
predetermine
the child’s filiation.

In other words, currently, in order to start a surrogacy in Mexico, it is necessary to request a judicial authorization and
obtain the relative favorable sentence. From the beginning of 2019, favorable sentences are obtained without any
problem despite the family typology, sexual orientation of the interested parties etc. Important elements to obtain
authorization are not to
have a criminal record and have an economic level that guarantees the child a decent standard of living. It is important
to underline that Mexico is one of the countries in which ius soli is applied and therefore the newborn also obtains a
Mexican passport as it is born in Mexican territory as it happens in the United States. It is so an interesting country
because you get the same results and you have the same advantages as the USA, but at a significantly lower price.

India
Currently, only heterosexual married couples whose home country grants the right to surrogacy can follow this process
in India. For this reason, it is not an option for many couples.

Thailand
This country has vetoed surrogacy, making the involvement of intermediaries, clinics, and individuals who carry out
or participate in the process a criminal offence.

Conclusions
This is a summative description of each country. We invite you to contact us by phone for free no-obligation quote, and
we will be happy to explain to you in detail the pros and cons of each country and help you to choose the one that is
right for you. Each case is unique, and attention to detail during such a complicated process really makes a difference.

Surrogacy laws by country

The legal aspects of surrogacy in any particular jurisdiction tend to hinge on a few
central questions:

 Are surrogacy agreements enforceable, void, or prohibited? Does it make a difference

whether the surrogate mother is paid (commercial) or simply reimbursed for expenses
(altruistic)?
 What, if any, difference does it make whether the surrogacy is traditional or gestational
surrogacy?
 Is there an alternative to post-birth adoption for the recognition of the intended parents
as the legal parents, either before or after the birth?
Laws differ widely from one jurisdiction to another. Of the countries which allow
surrogacy, many have residency or citizenship requirements for the intended parent(s)
and/or the surrogate. Countries without such requirements often attract persons from
abroad, being destinations for fertility tourism. In some countries, such as the United
States, Canada or Australia, laws vary by state/territory.

Australia

In Australia, all jurisdictions except the Northern Territory allow altruistic surrogacy; with
commercial surrogacy being a criminal offense. The Northern Territory has no
legislation governing surrogacy. In New South Wales, Queensland and the Australian
[1]

Capital Territory it is an offence to enter into international commercial

surrogacy arrangements with potential penalties extending to imprisonment for up to
one year in Australian Capital Territory, up to two years imprisonment in New South
Wales and up to three years imprisonment in Queensland.
In 2004, the Australian Capital Territory made only altruistic surrogacy legal. [2]

In 2006, Australian senator Stephen Conroy and his wife Paula Benson announced that
they had arranged for a child to be born through egg donation and gestational
surrogacy. Unusually, Conroy was put on the birth certificate as the father of the child.
Previously, couples who used to make surrogacy arrangements in Australia had
to adopt the child after it was registered as born to the natural mother; rather than being
recognized as birth parents, however now that surrogacy is more regular practice for
childless parents; most states have switched to such arrangements to give the intended
parents proper rights. After the announcement, Victoria passed the Assisted
[3][4]

Reproductive Treatment Act 2008, effective since 1 January 2010 to make only
altruistic surrogacy legal. [5]

In 2009, Western Australia passed a law to allow only altruistic surrogacy for couples
[6]

of the opposite-sex only, and to prohibit it for single people and same-sex couples. In
2010, Queensland made only altruistic surrogacy legal, as did New South Wales, and
[7] [8]

Tasmania did the same in 2013 with the Surrogacy Act No 34 and the Surrogacy
(Consequential Amendments) Act No 31
In 2017, South Australia passed a bill to allow gay couples equal access to both
surrogacy and IVF. The bill received royal assent on 15 March 2017 and went into effect
on 21 March 2017.
A Medicare rebate is not available for IVF treatment for surrogacy.

Brazil

Comercial Surrogacy is banned by Brazilian law, but altruistic surrogacy is allowed.

Nevertheless, the practice is performed illegally throughout the country. [18]

Canada

Surrogacy in Canada

The Assisted Human Reproduction Act (AHRC) permits only altruistic surrogacy:
surrogate mothers may be reimbursed for approved expenses but payment of any other
consideration or fee is illegal. Quebec law, however, renders all surrogacy contracts,
[19]

whether commercial or altruistic, unenforceable.

People's Republic of China

Surrogacy is neither forbidden nor expressly permitted by law in the People's Republic
of China. The Ministry of Health has established "departmental rules" which prohibit
medical professionals from performing surrogacy procedures, with violations punished
by fines (but not criminal liabilities). In practice, surrogacy arrangements are common in
the Mainland China with an underground market for commercial surrogacy estimated to
encompass between 400 and 500 agencies in 2012.
Colombia
There are no clear rules in Colombia as of today regarding surrogacy and a loophole
persists. The current laws applied are those from a natural childbirth. This means the
child must be registered with the surnames of the surrogate mother and her partner or
spouse, if she has any. Only through a challenging paternity lawsuit before a judge may
the commissioning parents be recognized as legal parents, and it may include genetic
tests.
[22]

In July 2016, a right wing political party, Democratic Center, has introduced for the
second time a bill in order to determine the concept of surrogacy and to forbid any types
of it.

Czech Republic
Surrogacy is not legally regulated in the Czech Republic and so is generally
considered legal. The only mention of the phrase "surrogate motherhood" can be found
in § 804 of the law n. 89/2012, where the law designates an exception to the ban of
adoption by siblings for siblings carried by a surrogate mother.

Finland
All surrogacy arrangements (both commercial and altruistic) have been illegal since
2007. Commercial surrogacy arrangements were illegal even before 2007.

France
In France, since 1994, any surrogacy arrangement that is commercial or altruistic, is
illegal or unlawful and is not sanctioned by the law (art 16-7 of the Code Civil) The
French Court of Cassation already took this point of view in 1991. It held that if any
couple makes an agreement or arranges with another person that she is to bear the
husband's child and surrender it on birth to the couple, and that she is choosing that she
will not keep the child, the couple making such an agreement or arrangement is not
allowed to adopt the child. In its judgement the court held that such an agreement is
illegal on the basis of articles 6, 353 and 1128 of the Code Civil.

Germany
All surrogacy arrangements (both commercial and altruistic) are illegal. The
German Free Democratic Party wants to allow altruistic surrogacy. According to the
German Civil Code, the legal mother is always the woman who gave birth to the child.
Georgia
Surrogacy, along with ovum and sperm donation, has been legal in the country
of Georgia since 1992. A donor or surrogate mother has no parental rights over such a
child.

Greece

Law 3305/2005 ("Enforcement of Medically Assisted Reproduction") Surrogacy in

Greece is fully legal and is only one of a handful of countries in the world to give legal
protection to intended parents. Intended parents must meet certain qualifications, and
will go before a family judge before starting their journey. As long as they meet the
qualifications, the court appearance is procedural and will be granted their application.
At present, intended parents must be in a heterosexual partnership or be a single
female. Females must be able to prove there is a medical indication they cannot carry
and be no older than 50 at the time of the contract. As in all jurisdictions, surrogates
must pass medical and psychological tests so they can prove to the court that they are
medically and mentally fit. What is unique about Greece is that it is the only country in
Europe, and one of only countries in the world where the surrogate then has no rights
over the child. The intended parents become the legal parents from conception and
there is no mention of the surrogate mother anywhere on hospital or birth documents.
The intended parent(s) are listed as the parents. This even applies if an egg or sperm
donor is used by one of the partners. An added advantage for Europeans is that, due to
the Schengen Treaty, they can freely travel home as soon as the baby is born and deal
with citizenship issues at that time, as opposed to applying at their own embassy in
Greece. The old regime (pursuant to art. 8 of Law 3089/2002), one of the prerequisites
for granting the judicial permission for surrogacy was also the fact that the surrogate
mother and the commissioning parents should be Greek citizens or permanent
residents. However, the law has recently (in July 2014) changed and the new provisions
of L. 4272/2014 foresee now that the surrogacy is allowed to applicants or surrogate
mothers who have their permanent or temporary residence in Greece. With this new law
Greece becomes the only EU country with a comprehensive framework to regulate,
facilitate and enforce surrogacy, as according to the explanatory statement of the art. 17
of the L. 4272/2014: "The possibility is now extending also to applicants or surrogate
mothers who have their permanent residence outside Greece".

Hong Kong

Commercial surrogacy is criminal under the Human Reproductive Technology

Ordinance 2000. The law is phrased in a manner that no one can pay a surrogate, no
surrogate can receive money, and no one can arrange a commercial surrogacy (the
same applies to the supply of gametes), no matter within or outside Hong Kong.
Normally only the gametes of the intended parents can be used.
In October 2010, Peter Lee, the eldest son and one of the presumed heirs of
billionnaire Lee Shau Kee obtained three sons through a surrogate mother, reportedly
from California. Since the junior Lee is single, the news attracted criticism on both moral
and legal grounds. A vicar general of the territory's Roman Catholic diocese was
critical. In December the case was reportedly referred to police after questions were
asked in Legco.

Iceland
All surrogacy arrangements (both commercial and altruistic) are illegal.

India
Altruistic and commercial surrogacy is legal for Indian citizens . As of 4 November 2015
commercial surrogacy for foreign intended parents is not legal in India. Those
commissioned before 11/4/2015 are reviewed on case by case situation; however, no
new surrogacies will be started
Before 2015, foreign commercial surrogacy was legal in India. India was a destination
[35]

for surrogacy-related fertility tourism because of the relatively low cost. Including the
costs of flight tickets, medical procedures, and hotels, it was roughly a third of the price
compared with going through the procedure in the UK. In the case of Balaz v. Union of
India the Honorable Supreme Court of India has given the verdict that the citizenship of
the child born through this process will have the citizenship of its surrogate mother.
Surrogacy was regulated by the Indian Council of Medical Research guidelines, 2005.

Ireland
There is no law in Ireland governing surrogacy .In 2005 a Government appointed
]

Commission published a very comprehensive report on Assisted Human Reproduction,

which made many recommendations on the broader area of assisted human
reproduction. In relation to surrogacy it recommended that the commissioning couple
would under Irish law be regarded as the parents of the child. Despite the publication
there has been no legislation published and the area essentially remains unregulated.
Due to mounting pressure from Irish citizens going abroad to have children through
surrogacy, the Minister for Justice, Equality and Defence published guidelines for them
on 21 February 2012.

Israel
In March 1996, the Israeli government legalized gestational surrogacy under the
"Embryo Carrying Agreements Law." This law made 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 A state-appointed committee permits surrogacy
arrangements to be filed only by Israeli citizens who share the same religion .The
numerous restrictions on surrogacy under Israeli law have prompted some intended
parents to turn to surrogates outside of the country. In February 2020, the Israeli
Supreme Court ruled the restriction on same-sex couples from entering surrogacy
agreements as discriminatory, thus giving the state one year to change the law.
Iran
All surrogacy arrangements (both commercial and altruistic) are legal and popular.
Many couples from middle east do the surrogacy in Iran due to the legal easiness.

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.

Malaysia
Surrogacy is currently prohibited by fatwa issued by National Council of Islamic
Religious Affairs in 2008.

The Netherlands
Altruistic surrogacy is legal in the Netherlands. Only commercial surrogacy is illegal in
Belgium and the Netherlands. Although altruistic surrogacy is legal, there is only one
hospital taking in couples and there are extremely strict rules to get in. This makes a lot
of couples seek their treatment outside the Netherlands or Belgium

New Zealand

Altruistic surrogacy is legal.

Nigeria
Surrogacy is legal in Nigeria, and surrogacy contracts are enforceable in Nigerian
courts. Gestational surrogacy is currently practiced in Nigeria by a few IVF clinics. The
[44]

guidelines are as approved by the practice guidelines of the Association of Fertility and
Reproductive Health (AFRH) of Nigeria. The ART regulation that is currently being
considered by the Senate permits surrogacy and allows some inducement to be paid for
transport and other expenses

Poland
Surrogacy is mostly unregulated in Poland. A 2015 news report estimated there are
likely dozens of surrogate mothers in Poland. According to Family Code legal mother of
child is always the woman who gave birth to them.

Portugal
In 2016, Gestational surrogacy was legalized in Portugal. Discussions on the adoption
of this law lasted more than 3 years. The first version of the law was adopted 13 May
2016, but the president vetoed it. He demanded that the law contained rights and
obligations of all participants in the process of surrogacy. As a result, the text of the law
has been updated, and now surrogacy is legalized and regulated by law in Portugal.
The basic rules of the law on surrogacy in Portugal Use the surrogacy services can only
those couples, where the woman can not carry and give birth to a child for medical
reasons. This should be documentally confirmed. Surrogate motherhood should be
altruistic, the woman who agrees to carry and give birth to a child, shouldn't pay for
services. The written agreement must be necessarily issued between the surrogate
mother and the genetic parents. The rights and obligations of the parties as well as their
actions in cases of force majeure should be included in it. After the birth, parental rights
over the child belong to the genetic parents. According to the law, the surrogate mother
is a woman of child-bearing age who agrees to carry and give birth to a child for the
genetic parents, and she doesn't lay claim to be their mother.
Traditional surrogacy is illegal in Portugal except for some situations that give the right
for a surrogate mother to be genetic (for example, if the future adoptive mother is
completely barren).
Adoption of the law caused some debate within several Portuguese Christian Churches,
though not among the once dominant Roman Catholic Church. Representatives of
Brazilian and US based evangelical and Pentecostal churches condemn surrogacy and
suggest that infertile couples can/must (depending on the Church) pursue conventional
adoption (national or transnational even though the later is banned by law).
Heterosexual and Lesbian Couples can become parents via surrogacy in Portugal as by
2016 all the risks of the program are provided and regulated by law (for example, the
occurrence of developmental defects of the baby, miscarriage or abortion). Male
Homosexual couples and single men and women of any sexual orientation have not yet
been included, but they are not addressed specifically by the law which leaves an
opening for a future revision in a more encompassing way. One such revision is on the
current manifestos of several parties: the [Left Bloc (B.E)], [People–Animals–Nature
(PAN)-and [(Ecologist Party "The Greens" (Os Verdes - The Greens)]. They can count
on the repeated opposition of the populist right party CDS – People's Party (PP-
CDS) and the Social Democratic Party (PPD-PSD), the most socially conservative
parties in parliament. The Communist Party (P.C.P) voted against the first proposal,
because it was against the recommendations of the National Ethics Council, this was
also President's argument to decline its approval. Most of the Socialist Party voted
favourably, as well. By now, this means that gay couples are banned from altruistic
surrogacy within Portugal and since the Constitution of Portugal explicitly bans
discrimination on the basis of sexual orientation, this could be unconstitutional, which is
being discussed by the Portuguese Constitutional Court.

Russia

Gestational surrogacy, even commercial, is legal in Russia .being available to

practically all adults willing to be parents. There must be one of several medical
indications for surrogacy: absence of uterus, deformity of the uterine cavity or cervix,
uterine cavity synechia, somatic diseases contraindicating child bearing, or repeated
failure of IVF despite high-quality embryos.
The first surrogacy program in Russia was successfully implemented in 1995 at the IVF
centre of the Obstetrics and Gynecology Institute in St. Petersburg. Public opinion in
general is surrogacy-friendly; recent cases of a famous singer and a well-known
businesswoman who openly used services of gestational surrogates received positive
news coverage. Meanwhile, the Russian Orthodox Church has officially condemned
surrogacy. As regards the baptism of the children born through surrogacy, the Russian
Orthodox Church holds that a "child born with the assistance of “surrogate motherhood”
can be Baptized according to the wishes of the party that will be raising it, if such are
either its “biological parents” or its “surrogate mother,” only after they have recognized
that, from the Christian point of view, such reproductive technology is morally
reprehensible and have borne ecclesial repentance – regardless of whither they ignored
the Church's position consciously or unconsciously". [56]

A few Russian women, such as Ekaterina Zakharova, Natalija Klimova, and Lam
[55]

ara Kelesheva, became grandmothers through post-mortem gestational surrogacy

[

programs, their surrogate grandsons being conceived posthumously after the deaths of
their sons.
Registration of children born through surrogacy is regulated by the Family Code of
Russia (art. 51-52) and the Law on Acts on Civil Status (art. 16). A surrogate's consent
is needed for that. Apart from that consent, no adoption nor court decision is required.
The surrogate's name is never listed on the birth certificate. There is no requirement for
the child to be genetically related to at least one of the commissioning parents.[59]

Children born to heterosexual couples who are not officially married or single intended
parents through gestational surrogacy are registered in accordance to analogy of jus
(art. 5 of the Family Code). A court decision may be needed in that case. On 5 August
2009 a St. Petersburg court definitely resolved a dispute as to whether single women
could apply for surrogacy and obliged the State Registration Authority to register a 35-
year=old single intended mother, Nataliya Gorskaya, as the mother of her surrogate
son. [60]

On 4 August 2010 a Moscow court ruled that a single man who applied for gestational
surrogacy (using donor eggs) could be registered as the only parent of his son,
becoming the first man in Russia to defend his right to become a father through court
proceedings. The surrogate mother's name was not listed on the birth certificate; the
[61]

father was listed as the only parent. After that a few more identical decisions concerning
single men who became fathers through surrogacy were issued by different courts in
Russia, listing men as the only parents of their surrogate children and confirming that
prospective single parents, regardless of their sex or sexual orientation, can exercise
their right to parenthood through surrogacy in Russia.
Liberal legislation makes Russia attractive for "reproductive tourists" looking for
techniques not available in their countries. Intended parents go there for oocyte
donation because of advanced age or marital status (single women and single men)
and when surrogacy is considered. Foreigners have the same rights for assisted
reproduction as Russian citizens. Within 3 days after the birth, the commissioning
parents obtain a Russian birth certificate with both their names on it. Genetic relation to
the child (in case of donation) does not matter.

Saudi Arabia
Religious authorities in Saudi Arabia do not allow the use of surrogate mothers, instead
suggesting medical procedures to restore fertility and ability to deliver.

Serbia
All surrogacy arrangements (both commercial and altruistic) are illegal. A draft of the
new civil law is said to allow surrogacy mother, but Serbian Assembly still did not adopt
this law yet. On 21 April 2017, the Serbian Assembly started a discussion a legislation
on assisted reproductive technology that bans all forms of surrogacy. (The legislation is
being discussed.)

South Africa
The South Africa Children's Act of 2005 (which came fully into force in 2010) enabled
the "commissioning parents" and the surrogate to have their surrogacy agreement
validated by the High Court even before fertilization. This allows the commissioning
parents to be recognized as legal parents from the outset of the process and helps
prevent uncertainty - although if the surrogate mother is the genetic mother she has
until 60 days after the birth of the child to change her mind. The law permits single
people and gay couples to be commissioning parents. However, only those domiciled
[64]

in South Africa benefit from the protection of the law, no non-validated agreements will
be enforced, and agreements must be altruistic rather than commercial. If there is only
one commissioning parent, s/he must be genetically related to the child. If there are two,
they must both be genetically related to the child unless that is physically impossible
due to infertility or sex (as in the case of a same sex couple). The Commissioning
parent or parents must be physically unable to birth a child independently. The
surrogate mother must have had at least one pregnancy and viable delivery and have at
least one living child. The surrogate mother has the right to unilaterally terminate the
pregnancy, but she must consult with and inform the commissioning parents, and if she
is terminating for a non-medical reason, may be obliged to refund any medical
reimbursements she had received.

South Korea
As of mid-2010s, surrogacy was available and mostly unregulated in South Korea. The
practice is often morally stigmatized. Surrogacy has declined since mid-2000s, as some
aspects of commercial surrogacy became illegal.

Spain
Whereas surrogacy is not legal in Spain (the biological mother's renouncement contract
is not legally valid), it is legal to perform the surrogacy in a country where it is legal,
having the mother the nationality from that same country.

Sweden

Surrogacy is illegal in Sweden.

Thailand

In response to the controversial Baby Gammy incident in 2014, Thailand since 30 July
2015, has banned foreign people travelling to Thailand, to have commercial surrogacy
contract arrangement, under the Protection of Children Born from Assisted
Reproductive Technologies Act. Only opposite-sex married couples as Thailand
residents are allowed to have a commercial surrogacy contract arrangement. In the past
Thailand was a popular destination for couples seeking surrogate mothers.

Ukraine

Ukraine is a major international surrogacy destination, given its very liberal laws, as
well as the fact that prices are more affordable than in the United States.
Since 2002, surrogacy and surrogacy in combination with egg/sperm donation has been
absolutely legal in Ukraine. According to the law a donor or a surrogate mother has no
parental rights over the child born and the child born is legally the child of the
prospective parents.
In Ukraine the start of introduction of methods of supporting reproductive medicine was
given in eighties of the preceding century. It was Kharkov where the extracorporeal
fertilization method was for the first time successfully applied in Ukraine, and in 1991 a
girl named Katy was born. Kharkiv was also the first city in CIS countries to realize
surrogacy. Many clinics dealing with surrogacy have been opened in Kiev and Lviv.
]

Ukrainian surrogacy laws are very favorable and fully support the individual's
reproductive rights. Surrogacy is officially regulated by Clause 123 of the Family Code
of Ukraine and the order of the Ministry of health of Ukraine "On approval of the
application of assisted reproductive technologies in Ukraine" from 09.09.2013 No. 787.
You can choose between Gestational Surrogacy, Egg/sperm Donation, special Embryo
adoption programs and their combinations. No specific permission from any regulatory
body is required for that. A written informed consent of all parties (intended parents and
surrogate) participating in the surrogacy program is mandatory.
Ukrainian legislation allows intended parents to carry on a surrogacy program and their
names will be on Birth certificate of the child born as a result of the surrogacy program
from the very beginning. The child is considered to be legally "belonging" to the
prospective parents from the very moment of conception. The surrogate's name is never
listed on the birth certificate. The surrogate can't keep the child after the birth. Even if a
donation program took place and there is no biological relation between the child and
the intended mother, their names will be on Birth certificate (Clause 3 of article 123 of
the Family Code of Ukraine).
Embryo research is also allowed, gamete and embryo donation permitted on a
commercial level. Single women can be treated by known or anonymous donor
insemination. Gestational surrogacy is an option for officially married couples only (a
man and a woman). Surrogacy in Ukraine is not regulated in law as commercial, it is
more close to altruistic, as the so-called "payment" is not performed to the surrogate
mother, it is called a compensation and is not under obligation to pay taxes.

United Kingdom

Commercial surrogacy arrangements are not legal in the United Kingdom. Such
arrangements were prohibited by the Surrogacy Arrangements Act 1985. Whilst it is
illegal in the UK to pay more than expenses for a surrogacy, the relationship is
recognised under section 30 of the Human Fertilisation and Embryology Act 1990.
Regardless of contractual or financial consideration for expenses, surrogacy
arrangements are not legally enforceable so a surrogate mother maintains the legal
right of determination for the child, even if they are genetically unrelated. Unless a
parental order or adoption order is made, the surrogate mother remains the legal
mother of the child.

United States

Surrogacy and its attendant legal issues fall under state jurisdiction and the legal
situation for surrogacy varies greatly from state to state. Some states have written
legislation, while others have developed common law regimes for dealing with
surrogacy issues. Some states facilitate surrogacy and surrogacy contracts, others
simply refuse to enforce them, and some penalize commercial surrogacy. Surrogacy
friendly states tend to enforce both commercial and altruistic surrogacy contracts and
facilitate straightforward ways for the intended parents to be recognized as the child's
legal parents. Some relatively surrogacy friendly states only offer support for married
heterosexual couples. Generally, only gestational surrogacy is supported and traditional
surrogacy finds little to no legal support.
States generally considered to be surrogacy friendly include California, Illinois,
Arkansas, Maryland, Washington D.C., Oregon, and New Hampshire among others.
]

Both New Jersey and Washington State commercial surrogacy laws became effective
from 1/1/2019.
For legal purposes, key factors are where the contract is completed, where the
surrogate mother resides, and where the birth takes place. Therefore, individuals living
in a non-friendly state can still benefit from the policies of surrogacy friendly states by
working with a surrogate who lives and will give birth in a friendly state.
The variations in policy mean that employee surrogacy benefits, which an increasing
number of employers offer, can only be enjoyed in certain jurisdictions.
Arkansas
Arkansas was one of the first states to enact surrogacy friendly laws. In 1989, under
then Governor Bill Clinton, it passed Act 647, which states that in a surrogacy
arrangement, the biological father and his wife will be recognized as the child's legal
parents from birth, even if his wife is not genetically related to the child (i.e., in a
traditional surrogacy arrangement). If he is unmarried, he alone will be recognized as
the legal parent. A woman may also be recognized as the legal mother of the surrogate
birth mother's genetic child as long as that child was conceived with anonymous donor
sperm. On the other hand, it is unclear how or whether same sex couples could
[85]

benefit these laws, since the 2008 ballot measure that made it illegal for unmarried,
cohabiting individuals to adopt or provide foster care to minors. On 26 June 2015, the
[86]

2008 ballot issue is moot because of Obergefell v. Hodges.

California
California is known to be a surrogacy-friendly state. It permits commercial surrogacy,
regularly enforces gestational surrogacy contracts, and makes it possible for all
intended parents, regardless of marital status or sexual orientation, to establish their
legal parentage prior to the birth and without adoption proceedings (pre-birth orders). [87][88]

Michigan
Michigan forbids absolutely all surrogacy agreements. It is a felony to enter
into such an agreement, punishable by a fine of up to $50,000 and up to five
years in prison. The law makes surrogacy agreements unenforceable.
New Hampshire
Since 2014, New Hampshire is recognized as a surrogacy friendly state, with laws in
place to protect all parties to a surrogacy arrangement. All intended parents,
irrespective of marital status, sexual orientation, or a genetic connection to the child, are
able to establish their legal parental rights through pre-birth orders placing their names
directly on the child's initial birth certificate. Reasonable compensation to the surrogate
is permitted by statute.
New York
New York law holds that commercial surrogacy contracts contravene public policy and
provides for civil penalties for those who participate in or facilitate a commercial
surrogacy contract in New York. Altruistic surrogacy contracts are not penalized, but
neither are they enforced. New York does recognize pre-birth orders from other states,
and has provided a post-birth adoption alternative for altruistic surrogate parents via
orders of maternal and paternal filiation.
Oklahoma
On 23 May 2019, Gov. Kevin Stitt signed into law HB2468 , which legalizes and
recognizes the validity of both compensated and uncompensated gestational surrogacy
agreements. Under the bill, a comprehensive court procedure is created to validate all
gestational agreements. The bill also allows a court to enter pre-birth orders
establishing parentage prior to the birth of the child. The bill applies to gestational
agreements entered into by single individuals, as well as heterosexual and homosexual
couples, who wish to become parents
Lawsuits
Baby M: New Jersey 1988. The surrogate mother in a traditional surrogacy
arrangement decided to keep the resulting child. The intended parents sued to have
themselves recognized as the legal parents. The New Jersey Supreme Court found that
the surrogacy contract was invalid as a matter of New Jersey public policy. However,
the intended parents were given custody of the child because the courts thought they
would provide a better home for the baby than the surrogate mother, who was instead
given visitation rights.

Vietnam
Surrogacy for humanitarian purposes have been allowed in Vietnam from 2015 after
The amended Family and Marriage Law passed with nearly 60 percent of votes from the
National Assembly.
Under the new law, surrogacy will only be allowed among married couples, who do not
have any common child, after doctors confirm the wife can not give birth even with
technical support. The surrogate must be a relative of either the husband or wife, and
have already given birth successfully. A woman is only allowed to be a surrogate once
in her life and must produce her husband's approval if she's married. The embryo must
be created by the intended parents' sperm and ovum. The process must be voluntary
and follow in-vitro fertilization regulations.

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