SURROGA

CY

SUBMITTED TO : SUBMITTED BY :
Prof. NEERU NAKRA PRIEYA AHLUWALIA
3-A, 35417703819
TABLE OF CONTENT :

1.) WHAT IS SURROGACY?

(BABY STEPS)

2.) TYPES OF SURROGACY

(CATEGORIZATION)

3.) WHAT IS WRONG WITH SURROGACY?

(INSIGHT)

4.) WHY THE LAW HAD TO BE IMPLEMENTED?

(NEED OF THE HOUR)

5.) CASE STUDY

(FOR BETTER UNDERSTANDIN)

6.) SURROGACY BILL

(DEVELOPMENT AND DETAILED ANALYSIS)
 WHAT IS SURROGACY?

• The word ‘surrogate’ has its origin in Latin term

“surrogatus” which means a substitute, that is , a person
appointed to act in the place of another.
• Surrogacy means a practice whereby one woman bears
and gives birth to a child for a couple with the intention of
handing over the child to the intending couple after birth.
• According to the Black’s Law Dictionary, Surrogacy
means the process of carrying and delivering a child for
another person.
Visual illustration
(broad one)
DRAWING POWER OF
SURROGACY
ON THE BASIS OF ON THE BASIS OF
METHOD MONEY

TRADITIONALOR COMMERCIAL
PARTIAL
SURROGACY SURROGACY

GESTATIONAL
EMOTIONAL
OR TOTAL
SURROGACY
SURROGACY
 A traditional surrogate is the Science now allows a surrogate
biological mother of the child; her mother to carry another woman’s
egg is combined with the intended egg with relative ease: she is known
father’s or donor’s sperm. as a gestational surrogate or carrier

When a woman agrees to be a Commercial surrogacy refers to any surrogacy

surrogate without being arrangement in which the surrogate mother is
compensated, this is known as compensated for her services beyond
altruistic surrogacy. reimbursement of medical expenses.
 BABY FACTORIES
• India’s surrogacy industry is vilified by women’s rights groups who say
fertility clinics are nothing more than “baby factories” for the rich.
• The Akanksha clinic in Anand is the best known at home and abroad,
giving the small town in Gujarat state the reputation as India’s
"Surrogacy capital”.
• Charging couples like Rekha and Daniel an average of $30,000 to
$50,000, a fraction of the cost in the United States, Patel pays her
surrogates around 4,00,000 rupees.
• In 2002, surrogate mother Premila Vaghela, 30, died days after
delivering a child for an American couple at a clinic in Gujarat. It was
recorded as an “accidental death ” by the police.
TNN | Updated: Dec 23, 2018
Why the Law had to be
implemented???
• Law governing surrogacy assumes great importance in
India because India has often been termed as the
‘surrogacy capital of the world’. Prior to 2008, surrogacy
(essentially commercial) was being briskly carried out in
India without any efforts by the Government to set up a
statutory regulatory mechanism. The Indian Council for
Medical Research (ICMR) formulated certain Guidelines
in 2005. However, these Guidelines did not have any
statutory basis and surrogacy continued to remain an
unchartered territory in the Indian legal landscape.
 The turning point came in the year 2008 when the Supreme Court
was called upon to deal with a case revolving around surrogacy. The
case of Baby Manji Yamda v. Union of India merely pertained to
obtaining travel documents for a baby with Japanese parents
conceived and born in India through commercial surrogacy. Though
the issue of the legality of commercial surrogacy under Indian law
was not raised, the Supreme Court made an observation that
commercial surrogacy is legal in India.

The timing of the judgment coincided with the formulation of the

Assisted Reproductive Technology (Regulation) Bill, 2008.
Unfortunately, no steps were taken to table the Bill of 2008 before
Parliament. This prompted the Law Commission to suo moto take up
the issue of surrogacy for research. The exercise culminated in its
228th Report submitted in August 2009 where the Law Commission
mooted the proposal for a revamped legislation to regulate the
process of surrogacy in India.
Baby Manji Yamada vs Union of India (AIR
2009 SC Page 84)

Baby Manji Yamada was a child born to an Indian surrogate mother for a
Japanese couple who before a month of the child's birth separated and the
future of the child was left in dark. The biological father, Ikufumi Yamada
wanted to take the child to Japan but the legal framework had no such
provision for such a case nor did the Japanese government permit him to
bring the child back home. In the end, the Supreme Court of India had to
intervene and the child was allowed to leave the country with her
grandmother. The biggest impact of the Baby Manji Yamada decision has
been that it spurred the government of India to enact a law regulating
surrogacy.

The Supreme Court of India in 2008 held surrogacy permissible in India

after Manji's case which increased the international confidence in going in
for surrogacy in India.
THE SURROGACY BILL
• The Surrogacy (Regulation) Bill, 2016 proposes to
regulate surrogacy in India by establishing National
Surrogacy Board at Central level, State Surrogacy
Boards and Appropriate Authorities in States and
Union territories. The proposed legislation ensures
effective regulation of surrogacy, prohibit
commercial surrogacy and allow ethical surrogacy
to the needy infertile couples.
 THE SURROGACY
(REGULATION) BILL, 2016
• The major objectives of the bill are to regulate surrogacy
services in the country.
• To provide altruistic ethical surrogacy to the needy infertile
Indian couples.
• To prohibit commercial surrogacy including sale and
purchase of human embryo and gametes
• To prohibit potential exploitation of surrogate mothers and
protect the rights of children born through surrogacy.
• To prevent commercialization of surrogacy.
 SALIENT FEATURES OF
Salient features
THE BILLof the bill
• Either one of them must have proven infertility.
• Egg donation is banned.
• Only married Indian couple can participate.
• Single, NRIs, Live-in, Foreigners , homosexual couples can’t.
• Couple must have been married for at least 5 years.
• Only altruistic surrogacy.
• Only a relative can be a surrogate mother.
• A woman can be a surrogate mother only once.
• Age of females should be 23-50 years and for males 26-55 years.
 CONTD……..

• Couples who already have a child cant have a surrogate child

unless the first child is physically or mentally retarded.
• The intending couple should not abandon the child, born out of
surrogacy under any condition.
• The child born through surrogacy will have the same rights as are
available to the Biological child.
• An insurance coverage of reasonable and adequate amount shall be
ensured in favour of the surrogate mother.
• National Surrogacy Board shall exercise the powers and shall
perform functions conferred on the board under this act.
 CONCLUSION OF THE
SURROGACY BILL,2016

• The bill seems to do more harm than good. Although formulated to

curb the exploitation of women and trafficking of children; again, it
exhibits the general policy of a state banning or censoring an activity
almost completely, instead of looking ways to use laws to regulate
and improve the situation. While most countries, especially in
Europe, only allow altruistic surrogacy, surrogate mothers are not
limited to the relatives, and medical expenses are covered. It can be
said that although India has not banned surrogacy completely, the
laws need to be re-looked so that they actually benefit surrogate
mothers, prospective parents, and children born from surrogacy.
OUR 2019 LAW defines surrogacy as….

Made commercial surrogacy illegal

Only allows altruistic surrogacy for needy, infertile Indian couples

Requires intended parents to be married for five years and have a

doctor’s certificate of their infertility

Restricts women to being surrogates only once, and only if they are a
close relative of the intended parents, are married and have a biological
child

Bans single parents, homosexuals and live-in couples from surrogacy

The LATEST SURROGACY REGULATION BILL,2020…

In an attempt to counter this widespread exploitation, The

Surrogacy (Regulation) Bill, 2019 was passed by the Lok
Sabha on 5th August 2019, and then it was referred to The
Select Committee, comprising of 23 Members of Rajya Sabha
on a Motion adopted by the House on the 21st November 2019
for examination of the Bill and report thereon. The Select
Committee prepared a report and drafted The Surrogacy
(Regulation) Bill, 2020 which was subsequently approved by
the Union Cabinet on 26th February 2020, according to a
statement made by Union Minister, Mr. Prakash Javadekar in a
press conference which now awaits the passing of the bill in
Rajya Sabha before it receives presidential assent and serves
its purpose.
Amendments to the old bill by the select committee:
* It allows any “willing” woman to be a surrogate mother. (2019 bill had proposed that
only a close relative of a couple can be a surrogate mother).

* Deleting the definition of “infertility” as the inability to conceive after five years of
unprotected intercourse on the ground that it was too long a period for a couple to wait
for a child.

* It proposes to regulate surrogacy by establishing a National Surrogacy Board at the

central level and State Surrogacy Board and appropriate authorities in states and Union
Territories respectively.

* The proposed insurance cover for surrogate mothers has now been increased to 36
months from 16 months provided in the earlier version.

* Commercial surrogacy will be prohibited including sale and purchase of human

embryo and gametes.

* Only ethical surrogacy to Indian married couples, Indian-origin married couples and
Indian single woman (only widow or divorcee between the age of 35 and 45 years) will
be allowed on fulfillment of certain conditions.
 IMPORTANCE OF THE CHANGES MADE
The practice of surrogacy has persisted in India without any legal framework, working only on
the basis of vague guidelines. Now with the changes in the bill, a regulatory framework will be
adopted to monitor surrogacy.

In recent times, unethical practices including the exploitation of surrogate mothers,

abandonment of children born out of surrogacy and the import of human embryos and gametes
have been reported. Many poor women in India took to becoming surrogate mothers repeatedly
despite grave implications to their health.

With the banning of commercial surrogacy and with the provision of insurance for 36 months,
the exploitation of surrogate mothers will be checked as well as there will be improvements in
their health.

Restricting the surrogate mother to a “close relative” potentially affected the availability of surrogate
mothers. Now with the new bill, a “willing woman” shall act as a surrogate mother

Now widows and divorced women can also benefit from the provisions, besides infertile Indian
couples.
((Law commission in its 228th report (2009) had recommended that surrogacy be regulated through suitable legislation. The
Law Commission had recommended that only altruistic surrogacy be legalised and commercial surrogacy be totally banned.)
 CRUX
• Hence, the Surrogacy Bill, 2020 is an ethical,
moral and social legislation as it protects the
reproductive rights of a surrogate mother as well as
.
protects the rights of the child born through
surrogacy.
• So, the most important organ of the government of
the country i.e. Judiciary who are also regarded as
the guardians of the constitution has allowed the
surrogacy to help the people.