The document discusses surrogacy as a longstanding practice that provides opportunities for childless couples, highlighting its historical roots and ethical debates, particularly in India. It examines various surrogacy methods, legal challenges, and the commercialization of surrogacy, noting India's emergence as a hub for affordable reproductive services. The paper argues for effective legislation to navigate the complexities of surrogacy while addressing both humanitarian and commercial interests.

1.
SURROGACY-­‐
A
Godsend
by
Man
By
Pranav
Gupta

2. ABSTRACT
‘Surrogacy’, a boon for the needy which has its roots since ages, and its been in constant practice
which privileges the infertile, unhappy and incomplete parents by rewarding a precious gift
called ‘child’. In surrogacy, a woman bears a child for someone else. In the past, the typical
surrogacy occurred when a wife could not bear children for her husband. The husband would
then impregnate another woman who would bear the child. From the period of Mahabharata to
this modern 21th century, Surrogacy plays its key role across the globe The most famous
example of this occurs in the bible when Hagar serves as a surrogate for Abraham’s wife Sarah.
This research is based on the secondary data which tries to provide the clear analysis done over
the debate between use of this scientific progress on pure humanitarian grounds to misuse of the
same for commercialization across the globe by including the judicial responses of various
nations like USA, UK, Australian and India and the legal as well as the contractual problems
arising in India according to ICA 1872. This paper includes the ethical and and moral issues
arising in India against and for the surrogacy with a cast study of Jan balaz v. anand
municipality. This empirical research tries to open a window for the effective legislation,
applications and proper guidelines to handle the concept of surrogacy in a prudent way so that it
would further continue to fertile the infertile wombs.
PRESENCE OF SURROGACY IN ANCIENT TIMES
The concept of surrogacy is not an outcome of this ultramodern world,It had its roots even in
ancient times as well. The first ancient reference to infertility occurs in Genesis, when Jacob’s
wife, like many of her Biblical peers, was unable to bear a child. After praying to God and
begging her husband, she sends Jacob to her maid and adopts the resulting child as her own1
.In
Jewish law, a childless couple falls within the category of personal suffering and there exists a
clear obligation to assist them in every permissible way, as long as no one is harmed in the
process2
.
1
Genesis 16, Genesis 30, Bible
2
Joseph Schenker, “Religious Perspective,” in Surrogate Motherhood, International Perspectives, Portland: Hart
Publishing, 2003.p

3. In Hindu culture, surrogacy was known in the name of “NiyogiPratha” in Mahabharta, Gandhari
the wife of king Dhritrashtra conceived, after which she delivered a mass, these cells were put in
a nutrient medium and were grown in Vitro till full term. Sage Gautama produced two children
from his own semen, a son Kripa and a daughter Kripi, who were both test tube babies, like wise
sage Bhardwaj produced Drona , later to be the teacher of Pandavas and Kauravas3
.
METHODS OF ASSISTED HUMAN REPRODUCTION
A. In Vitro Fertilization
In Vitro Fertilization (IVF) is a process in which hormonal stimulation of a woman's ovaries to
produce multiple eggs takes place. The eggs are removed and placed into a glass dish. Sperm are
then instituted to the eggs. When a sperm cell fertilizes the egg, the organism, called a pre-zygote
(or pre-embryo), divides until it reaches the four-to-eight cell stage. After this division, several
pre-zygotes are placed into the woman's uterus by cervical catheter. If this part of the procedure
is successful, one or more embryos will attach themselves to the uterine wall and develop into a
foetus or foetuses.4
B. Artificial Insemination
Artificial insemination of humans exists in two forms. In homologous insemination, the sperm
of an intended father is implanted into the uterus of an intended mother, for the purpose of
fertilizing the ovum of the wife who will then, hopefully, bear a child as a result of the process.
In heterologous insemination, also known as donor insemination, the sperm of a donor who is
not the intended father (or a fertilized egg consisting of donor sperm), is implanted into the
uterus of the woman intending to bear a child from the process.5
3
Concept of NiyogiPratha : Dr. P.V. Kane
4
RESOLVING
DISPUTES
ARISING
OUT
OF
SURROGACY
by:
PankajSattawan&ParthaPratimMedhi
5
RESOLVING
DISPUTES
ARISING
OUT
OF
SURROGACY
by:
PankajSattawan&ParthaPratimMedhi

4. C. Surrogacy
The initial type of surrogacy arrangement was created when the ovum of the surrogate mother
was artificially inseminated with the sperm of the intended father. The child resulting was
genetically related to the intended father and the surrogate mother. Another form of traditional
surrogacy occurs when the intended parents use the sperm of an anonymous donor to fertilize the
ovum of the surrogate mother. In this arrangement, the surrogate mother has a genetic
relationship with the new born, but neither of the intended parents do
. In gestational surrogacy, the intended parents use the sperm of an anonymous donor and the
ovum of an anonymous donor, use IVF to create pre-zygotes, and have the pre-zygotes
artificially inseminated into the uterus of the surrogate.
This method means that neither the intended parents nor the surrogate have any genetic
relationship to the child.
ETHICAL ISSUES IN INDIA
According to the traditional surrogacy is similar to prostitution and is intrinsically immoral
because it requires female reproductive labour. The very well-known American feminist Andrea
Dworkin states that, “motherhood is becoming a new branch of female prostitution with the help
of scientists who want access to the womb for experimentation and power.”6
According to her
the only difference that remains in case of surrogacy is that the womb and the vagina are not
being sought. But this kind of analogy between surrogacy and prostitution is certainly not
sufficient enough to show that surrogacy is unethical and therefore passionate opinions of do not
pose hindrance in the process of legalization surrogacy. The disagreement of liberal feminists is
that surrogacy is an expansion of women’s reproductive labour and personal autonomy is
legetimate. Therefore if females could contract freely to sell their productive labour for some
lucrative amounts, then they should be at privilege to sell their reproductive services. 7
6
Dworkin
A.
Right-­‐wing
women:
the
politics
of
domesticated
females.
London:
The
Women's
Press,
(1983)
7
Jaggar’s
Alison
,
Feminist
Politics
and
Human
Nature,
(1983)

5. The involvement of third parties and various agencies in a surrogacy agreement for the sake of
material benefits is yet another issue of concern. The very motive and focus of the generous
purpose fails when we pass on the responsibility to certain money makers thereby reducing the
subject matter of the agreement, i.e. the new born, into a commodity, the surrogate mothers into
salesperson, henceforth and the whole arrangement into commerce. In the United Kingdom the
Surrogacy Arrangements Act 1985 prohibits third parties such as commercial surrogacy agencies
or brokers to benefit financially and intervene into the surrogacy arrangements and imposes
criminal liabilities. It does not outlaw surrogacy per se and appears to favour altruistic
arrangements, charitable agencies, and the direct payment of finances by the commissioning
parents to the surrogate mother.8
Scholars working in post structuralism, cultural studies, science
and technology studies, health sciences, and especially medical anthropology, began to focus
directly on women’s agency in navigating the complex cultural terrains of infertility medicine.9
Since surrogacy is a very chronic issue, the society needs to figure out how it can handle the
scenario. Some may suggest abolishing the reproductive technology as it involves number of
risks to people, but on the other hand, some may insist on legalizing surrogacy. Infertile couple
will not be able to have child if surrogacy is banned. Parenthood is a significant part of life,
without it there would be a vacuum in one’s life. If the study of reproductive technology is
abolished, it may be deleterious to society in the long run. Although the practice of surrogacy
may be debatable, society may advantage from this technology is many other ways. What society
is gaining from abolishing surrogacy is not worth what it would be losing. However, legislation
needs to address legal guidance of surrogacy in order to confront continuous conflicts.
THE RISE OF REPRODUCTIVE TOURISM
India has become one of the most popular places all around the world for surrogacy being carried
out. It provides a solutions to infertility and childlessness, the people involved in surrogacy
business have transformed it into a lucrative industry which the Indian Confederation of Indian
Industry had suggested to grow to an astonishing $2.3 billion annually, by the year 2002. The
8
Andrews,
Lori.
B.
1988.
Surrogate
motherhood:
The
challenge
for
feminists.
In
Surrogate
motherhood:
Politics
and
privacy,
ed.
Larry
Gostlin.
Bloomington,
IN:
Indiana
University
Press.
9
Id.

6. first reported gestational surrogacy in the world came in 1984 when a woman without a uterus
got her eggs transferred to her friend’s uterus who gave birth to the child with whom she had no
genetic relation.10
Thereafter, doctors began using IVF to fertilize the male sperm with donated
eggs so that couples in which the wife was infertile could have a child.11
India’s first gestational
surrogacy took place in 1994 in Chennai.12
Now, IVF and other fertility clinics have been set up
in both rural and urban areas of almost every state in India.13
Surrogacy in India has become very
popular as people for all-over the world come to India. India is a hub of surrogacy to 14 per cent
of the world's estimated 80 million infertile couples.
In 2003, India’s finance minister, Jaswant Singh called for India ‘to become a ,global health
destination’ and encouraged measures to promote a medical tourism industry including
improvements in airport infrastructure.14
Joint medical tourism campaigns and medical tour
packages with hospitals to attract foreign patients are being run by Indian State Tourism
Departments.15
In that reference, a new category of medical visa was introduced that allowed
patients and family members to stay in the country for twelve months instead of the usual six
months under a tourist visa.16
The CII (Confederation of Indian Industry) estimated that 150,000
medical tourists came to India in 2005 and it also estimated that the number of touristswould
increase to 450,000 by 2008.17
One estimate also calculates India’s rapidly growing commercial
10
WH
Utian
et
al.,
Successful
Pregnancy
After
an
In-­‐vitro
Fertilization-­‐embryo
Transfer
from
an
Infertile
Woman
to
a
Surrogate,
313
NEW
ENG.
J.
MED.
1351
(1985).
11
SHANLEY,
Making
babies,
making
families:
what
matters
most
in
an
age
of
reproductive
technologies,
surrogacy,
adoption,
and
same-­‐sex
and
unwed
parents
103
at
83-­‐84
(2002)
12
PadmanabhanGeeta,
Hope
in
the
Test
Tube,
THE
HINDU,
January
19,
2006
available
at
http://www.thehindu.com/thehindu/mp/2006/01/19/stories/200601190054020
0.htm.
13
Gardner
Hannah,
Long-­‐distance
babies
spur
outcry,
THE
NATIONAL,
July
14,
2008
available
at
http://www.thenational.ae/article/20080714/PAGETHREE/567226060/1119/B
USINESS
(quoting
a
commissioning
father
as
saying,
“Westerners
are
fed
up
with
draconian
western
rules.
.
.
.
India
is
a
delight
and
so
are
their
surrogates.”).
14
ChinaiRupa&Goswami
Rahul,
Medical
Visas
Mark
Growth
of
Indian
Medical
Tourism,
85
BULL.
OF
WORLD
HEALTH
ORG.
161,
June
2007,
available
at
http://www.who.int/bulletin/volumes/85/3/07-­‐010307/en/index.html.
15
Mulay
Shree
&
Gibson
Emily,
Marketing
of
Assisted
Human
Reproduction
and
the
Indian
State,
49
development
84,
85
(2006).
16
However,
many
Indian
consular
offices
overseas
have
not
acted
on
the
directives
of
the
Ministry
of
External
Affairs
in
arranging
for
this
class
of
medical
visa.
Nevertheless,
the
Union
Government
is
considering
introducing
“visas
on
arrival”
beginning
in
airports
in
Delhi
and
Mumbai
on
an
experimental
basis
in
an
effort
to
further
promote
medical
tourism.
See
Medical
Tourism:
Centre
Considering
Visa
on
Arrival,
HINDU
BUSINESS
LINE,
Mar.
29,
2007,
available
at
http://www.thehindubusinessline.com/2007/03/29/stories/2007032903031100.
h
tm
17
Chinai&Goswami,;
India
turning
affordable,
quality
options
for
medical
tourists,
THE
ECONOMIC
TIMES,
Nov.
18,
2008,
available
at

7. surrogacy industry is worth U.S. $445 million every year.18
Infertility clinics, healthcare
providers, medical tourism companies, the broader tourism industry, the Indian government, and
the women who provide surrogacy services all getprofited from this industry.19
A report by India
Brand Equity Foundation and Ernst & Young estimated that outsourced health care would
employ nearly two million people in India by the year 2008, an increase from the 20,000
employed previously.20
Couples in search of fertility treatment come not only from Western countries, but also from
neighbouring countries such as Sri Lanka, Pakistan, Nepal, Bangladesh, Thailand, and
Singapore.21
The reproductive segment of the Indian medical tourism market is valued at more
than $450 million a year.22
INDIAN SURROGACY IS CHEAPER
Lower cost involved in surrogacy as compared to other countries attracts foreigners to travel to
India to get rid of their infertility issues. Commissioning parents can expect to pay $14,000 to
$18,000 to a gestational surrogate in the United States.23
Total cost for contracting with a
http://economictimes.indiatimes.com/Healthcare/India_turning_affordable_quality_option_for_medical_tourists/
articleshow/3729654.cms
18
“Surrogacy
a
$445
mn
Business
in
India.”
The
Economic
Times
,
August
25,
2008
19
Kari
Points,
“Commercial
Surrogacy
and
Fertility
Tourism
in
India.”
20
Lal
Neeta,
A
Labour
of
Love,
KHALEEJ
TIMES,
Feb.
29
2008,
http://www.khaleejtimes.com/DisplayArticle.asp?xfile=data/weekend/2008/Feb
ruary/weekend_February116.xml&section=weekend&col=
(reporting
that
Dr.
Anoop
Gupta,
Medical
Director,
Delhi
IVF
and
Fertility
Research
Centre,
New
Delhi
claims
he
has
delivered
over
3,000
surrogate
children
since
he
opened
his
clinic
in
1995).
21
Lal,
Supra
note
25
22
See
Cheaper
Overseas:
Surrogate
Mothers,
In-­‐Vitro
Fertilization
is
$6,000
in
India
and
$60,000
in
the
U.S.,
ABC
NEWS,
Sept.
28,
2007,
available
at
http://abcnews.go.com/GMA/story?id=3664065&page=1
[hereinafter
Cheaper
Overseas]
(600
IVF
clinics
in
India
bring
more
than
$400
million
a
year
into
the
local
economy);
Randeep
Ramesh,
British
Couples
Desperate
for
Children
Travel
to
India
in
Search
of
Surrogates:
Ethics
under
Scrutiny
as
Would-­‐be
parents
are
Enticed
by
Lower
Costs
and
Relaxed
Laws,
GUARDIAN,
Mar.
20,
2006,
at
26,
available
at
http://www.guardian.co.uk/world/2006/mar/20/health.topstories3
(noting
that
fertility
market
is
worth
about
250
million
pounds
per
year).
23
.
L.
Watson
Jennifer,
Note,
Growing
a
Baby
for
Sale
or
Merely
Renting
a
Womb:
Should
Surrogate
Mothers
be
Compensated
for
Their
Services?,
6
WHITTIER
J.
CHILD
&
FAMILY
ADVOC.
529,
551
(2007)
(noting
that
surrogates
should
earn
$33,372
if
paid
at
minimum
wage);
see
also
McEwen,
at
292
(noting
that
if
a
surrogateis
paid
$10,000,
it
works
out
to
an
hourly
wage
of
$1.54).

8. surrogate mother in the United States varies from $59,000 to $80,000.24
India’s current costs are
markedly lower than the American standards. In a nation where annual per capita income is
$500, fees for surrogates are estimated to range anywhere from $2,500 to $7,000.25
The
surrogates in India are paid in installments over a period of nine months.26
Many couples come
through travel agencies that specialize in medical tourism. These agencies contract with
infertility clinics in India and organize the couple's trip for a fee. Thus, Indian costs required for
surrogacy is much cheaper than that of United States or anyother country. It is very obvious that
surrogacy is very affordable and more advantageous in India.
The success rate of surrogacy in 2008
LEGAL ASPECTS OF SURROGACY
24
Jamie
D.
Brooks,
Biopolitical
Times,
Oprah
on
Renting
Wombs
in
India:
“It‟s
Beautiful”
Oct.
11,
2007,
http://www.biopoliticaltimes.org/article.php?id=3713
($70,000);
Mike
Celizic,
TODAYShow.com,
More
and
More
Couples
Finding
Surrogates
in
India
February
20,
2008,
http://www.msnbc.msn.com/id/23252624/($80,000
in
U.S.
for
surrogacy).
25
Haworth
Abigail,
Surrogate
Mothers:
Womb
for
Rent,
MARIE
CLAIRE,
http://www.marieclaire.com/world/articles/surrogate-­‐mothers-­‐india
(last
visited
Oct.
31,
2008)
(Indian
surrogates
are
paid
between
$5,000
to
$7,000,
the
equivalent
of
upwards
of
10
years‟
salary
for
rural
Indians);
see
also
The
Feminist
eZine,
Is
Paying
the
Poor
to
Have
Children
Morally
Wrong?,
http://www.feministezine.com/feminist/international/Wombs-­‐for-­‐Rent.html
(last
visited
Oct.
21,
2008)
(claiming
that
Brahman
surrogates
can
garner
more
in
fees
than
those
in
lower
castes);Surrogate
Mothers
Lined
Up
in
Gujarat,
THE
HINDU,
Mar.2,
2006,
available
at
http://www.thehindu.com/2006/03/02/stories/2006030201872400.htm
(surrogates
get
paid
between
1
and
2
lakhs);
Celizic
„Wombs
for
Rent‟
Grows
in
India
(Marketplace
radio
broadcast
Dec.
27,
2007),
http://marketplace.publicradio.org/display/web/2007/12/27/surrogate_mothers/($6,000
to
$10,000);
26
Insight:
Outsourcing
to
Indian
Surrogate
Mothers,
CNN
television
broadcast
,Oct.
17,
2006,
available
at
http://transcripts.cnn.com/TRANSCRIPTS/0610/17/i_ins.01.html.

9. Surrogacy is the conflicting issue in the primary unit of a society i.e. a family, so allowing or
restraining surrogacy without any proper reason would be irrational.Jurisprudentially, Roscoe
Pound has expressed the need for a law in terms of claims or wants or desires which men assert
de facto and about which the law must do something if organized societies are to endure.27
So,
individual interest must be protected for social good and there is a need of law to protect such
interest.
Surrogacy involves the concept of demand and supply which requires a womb that can be rented
for the people who need one and are ready to pay to get a child. The contractual activities are
done under ICA 1872 (Indian contract act) which states that all agreements are contracts if they
are made by the free consent28
of parties competent to contract, for a lawful consideration [42]
and with a lawful object29
. The real issue comes in surrogacy when it is to be decided that, Is it
against the public policy and if the consideration or money is involved under sec 23 of ICA
1872.
RIGHT TO REPRODUCTION
• Article 16(1) of the Universal Declaration of Human Rights 1948 says, that “men and
women of full age without any limitation due to race, nationality or religion have the
right to marry and start a family”.
• The Judiciary in India has recognized the reproductive right of humans as a basic right.
Vide B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High
Court upheld “the right of reproductive autonomy” of an individual as an aspect of his
“right to privacy” and agreed with the decision of the US Supreme Court in Jack T.
Skinner v. State of Oklahoma, which characterised the right to reproduce as “one of the
basic civil rights of man”.
• In Javed v. State of Haryana, though the Supreme Court upheld the two living children
norm to debar a person from contesting a Panchayati Raj election it abstain from stating
that the right to procreation is not a basic human right. Now, if reproductive right gets
27
. Roscoe Pound, Jurisprudence (Law Book Exchange Ltd., New Jersey, vol. III, 1959) p.15.
28
Sec 14, The Indian Contract Act, 1872
29
Sec 23, Id.

10. constitutional umbrella, surrogacy which allows an infertile couple to exercise that right
also gets the same constitutional protection.
SURROGACY AND PERSONAL LAWS
Article 25th
of Indian constitution empowers every religion to have its own belief. According to
Hindu Maintenance act 1956, an adoption system is quite cumbersome and surrogacy lacks any
tedious laws, so it prefers surrogacy over adoption. Also,
• It is assumed that the lack of blood relation with the parents leads to weak emotional
bond between the parent & child in adoption.
• A surrogacy arrangement can be seen as a boon that offers a unique solution to the
problem of infertility in Hindu couples and allows them to have a child who is genetically
theirs and can relieve them of their religious debts.
• Islamic law encourages attempts to cure infertility, but only to the extent that IVF
technologies involve the husband and wife. Surrogacy is generally not allowed in Islam
because it is akin to adultery (zina) since the surrogate is carrying the fertilized egg of
someone who is not her legal husband.
• In Jewish law, a childless couple falls within the category of personal suffering and there
exists a clear obligation to assist them in every permissible way, as long as no one is
harmed in the process.
PARTIES TO SURROGACY
The Commissioning Parents
The commissioning parents—those who initiate the surrogacyand are the intended parents—face
many issues that should beaddressed in any attempt to regulate commercial surrogacy.
Among these are the causes requiring a surrogacy, whether thesurrogate will abort, and whether
surrogacy is preferable to otherreproductive options.

11. The Surrogates
Surrogates, who carry a fetus to term before relinquishing the resulting child, face vastly
Different issues from the commissioningparents. Often, their role in the surrogacy raises
concerns, whichheighten when economic inequities are involved. This problem isillustrated by
the situation in India, where women are typicallypressured into the socially unacceptable job of
surrogacy by theireconomic conditions, and sometimes, by their own families’desperation for
income.
The Children
Children are perhaps the most important, but overlooked,aspect of commercial surrogacy. There
are, in fact, two groups ofchildren that are impacted by international commercial surrogacy:
(1) the children resulting from commissioned surrogacies, and, lessobviously, (2) the existing
children awaiting adoption all across theworld30
. Although the consequences of commercial
surrogacy forthese two groups of children are very different, both groups arenotably affected by
the expansion of surrogacy.
Commissioned Children
The first, and most obvious, group of children impacted bysurrogacy is the group resulting from
it: commissioned children.The concerns related to them include the physical and
mentalconsequences of being born of a surrogate, as well as the aftermathof a potential family
breakup and the approach of the courts to theproblems attendant to commercial surrogacy.
Adoption Candidates
When speaking of international surrogacy, it is difficult not toconsider its impact on adoption,
both domestic and international.The institutions of surrogacy and adoption, in fact, have a
30
There may also be a third group of impacted children: the surrogates’children, who, for example, may develop a
fear of being given away as well.This group is beyond the scope of this Article, but, for further background onthis
category of children, see Katherine B. Lieber, Note, Selling the Womb:Can the Feminist Critique of Surrogacy Be
Answered?, 68 IND. L.J. 205, 217(1992) (stating that, while this fear may be unfounded, children often
areextremely insecure and seeing their mother give away a newborn may causethem to fear being given away as
well); Shari O’Brien, CommercialConceptions: A Breeding Ground for Surrogacy, 65 N.C. L. REV. 127, 144
(1986) (explaining that a surrogate’s existing children may, without being toldthe truth of what was going on, be
fearful that they or a sibling may be givenaway).

12. symbiotic relationship because couples seeking to expand theirfamilies alternatively can parent
only a limited number ofchildren, who may either result from adoption or from
assistedreproductive techniques31
. The effect of this symbioticrelationship is two-fold: (1)
surrogacy may absorb resources thatwould otherwise be devoted to adoption, but, on the other
hand, (2)
surrogacy provides competition that might make adoption moreeffective and efficient.
228th
Report- A new draft Surrogacy Bill
The law commission of india submitted its 228th
report with 50 clauses under 9 chapters on
“Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights
and Obligations of Parties to a Surrogacy.” The followings are the observations of the
commission:
• Surrogacy arrangement will continue to be governed by contract amongst parties, which
will contain all the terms including consent in writing. The agreement will be treated at
par with the Indian Contract Act, 1860 and other laws applicable to the agreement.
However, such an arrangement should not be made for commercial purpose.
• The Bill provides that a foreigner or foreign couple not resident in India or a non-resident
Indian individual or couple, seeking surrogacy in India, shall appoint a local guardian
who will be legally responsible for taking care of the surrogate during and after
pregnancy till the child is delivered to the foreigner or foreign couple or the local
guardian. It is further provided that the commissioning parents or parent shall be legally
bound to accept the custody of the child irrespective of any abnormality that the child
may have, and the refusal to do so shall constitute an offence. A surrogate mother shall
relinquish all parental rights over the child. The birth certificate in respect of a baby born
through surrogacy shall bear the name(s) of genetic parents/parent of the baby.32
31
through assisted reproduction, 6,000 of whom were created through the use of‘donated’ eggs and 600 of whom
were carried by surrogates. In 2003,Americans adopted 21,616 children through international adoptions and
gavebirth to thousands of babies using commercially Purchased sperm.” Krawiec,supranote 2, at 205.
32
A 228th Report of Government of India,” need for legislation to regulate assisted reproductive technology clinics
as well as rights and obligations of parties to a surrogacy” Para 2.3, pg 17. (August 2009)

13. • In the event of death of the legal parents, or divorce between them, the surrogacy
arrangement should provide for the financial support of the child.
• Legislation itself should recognize a surrogate child to be the legitimate child of the
commissioning parents
• Right of privacy of the donor as well as surrogate mother should be protected
• Surrogacy that prefers sex- selective should be banned.
• A woman serving as a surrogate must be between the ages of 21 and 45 and may not
serve as a surrogate for more than three live births.
THE ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION ) BILL 2010 – A
BRIEF ANALYSIS
Commercial surrogacy though banned in several developed countries may soon become a reality
in India through a bill to legalisecommercial surrogacy which has been drafted by the Indian
Council of Medical Research in short ICMR8 . The bill is called as the Assisted Reproductive
Technology ( Regulation ) bill and Rules 2010 ,Some novel measures that have been suggested
in this Act are as follows:
• SURROGACY AGREEMENT: The bill provides an agreement between surrogate
mother , commissioning parents and the ART clinic which makes the smooth running of
the surrogacy contract. According to section 20 of the bill and the rule 15 of THE
ASSISTED REPRODUCTIVE REGULATION RULES 2010 the ART 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 parents . Form J is also
mentioned for the agreement for surrogacy.
• RIGHTS OF THE SURROGATE: The draft bill ensures rights to the surrogate
mother according to section 34 of the ART bill as under10:

14. Right to physical integrity and bodily autonomy i.e. she cannot be forced to abort the
foetus, go through foetal reduction or made to follow a certain diet.
Right of no sex selection , no antenatal testing even with the consent of the surrogate.
Right to make decisions concerning reproduction free of discrimination, coercion and
violence.
Right to receive monetary compensation from the commissioning couple or individual ,
as the case may be , for agreeing to act as surrogate .
Right to seek all medical treatments and procedures for her health and in relation to the
concerned child .
Right to receive certificate by the person or persons who have availed her services,
stating that she has acted as a surrogate for them
Right not to disclose the confidential and private information about the surrogacy to
anyone other than the central database of Indian Council of Medical Research , except by
an order of competent court .
Right to have local guardian being appointed by the commissioning foreigner couple
seeking surrogacy in India for taking care of the surrogate during and after the pregnancy.
• RIGHTS AND WELFARE OF THE CHILD
Clause 35 (1) of the draft ART bill states that “ A child born to a married couple through
the use of assisted reproductive technology shall be presumed to be the legitimate child of
the couple , having been born in wedlock , with the consent of both the spouses , and
shall have identical legal rights as a legitimate child born through sexual intercourse” .
The draft bill makes provision for the child to seek information about donors and
surrogates on attaining 18 years of age . Clause 36 (1) of the ART bill 2010 states that
“ A child may upon reaching the age of 18 , apply for any information excluding
personal identification, relating to his / her genetic parents or surrogate mother”.
• SEX ELIGIBILITY: The bill is liberal by using the phrase married or unmarried
couple as eligible for ART’s , it does not include within its ambit people who are not

15. heterosexual and their accessibility to ART’s . The bill clearly defines “ unmarried
couple” as a man and a woman , both of marriageable age , living together with mutual
consent but without getting married (clause 2 dd of the ART bill).
• BIRTH CERTIFICATE: According to clause 35 (7 ) and 34 (10) of the ART bill , the
birth certificate of a child born through the use of assisted reproductive technology shall
contain the name or names of the parent or parents, as the case may be, who sought
such use i.e. commissioning couple. This implies that the name of the couple seeking
ART or commissioning the surrogacy will be written on the birth certificate. Thus the
birth certificates bears the name of the genetic / gestational surrogate .
• CERTIFICATES BY FOREIGN COUPLE : According to section 34 (19) foreign
couple seeking surrogacy in India have to submit two certificates i.e. first an letter from
the embassy of their country in India or from the foreign ministry of their country that
their country permits surrogacy and second that the child born through surrogacy in India
will be permitted entry in their country as their biological child so that the child can
get the citizenship of commissioning couple .
LEGAL ASPECT OF SURROGACY IN INDIA
Commercial surrogacy has been legal in India since 2002. India is emerging as a leader in
international surrogacy. Indian surrogates have been increasingly popular with fertile couples in
industrialized nations because of the relatively low cost. Indian clinics are at the same time
becoming more competitive, not just in the pricing,but in the hiring and retention of Indian
females as surrogates. Clinics charge 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
Surrogacy in India is much simpler and cost effective than anywhere else in the world. There is
an increasing amount of Intended Parents who choose India as their surrogacy destination. The
main reason for this increase is the less costlier surrogacy and better flexible laws. In 2008, the
Supreme Court of India has held that commercial surrogacy is permitted in India. That has again
increased the international confidence in going in for surrogacy in India.

16. POSITION OF ARTIFICIAL REPRODUCTIVE TECHNIQUE IN GLOBAL WORLD
(UK, USA AND AUSTRALIAN LEGAL SYSTEM)
In England, based on the recommendations of ‘Warnock Committee,’ the Surrogacy
Arrangements Act, 1985 was brought in to force. Under this Act surrogacy arrangements are
made legal and the Act prohibits advertising and other aspects of commercial surrogacy. The Act
prohibits giving or taking of money or other benefit (other than expenses reasonably incurred) in
consideration of the making of the order or handing over of the child. In the United States of
America also, commercial surrogacy seems prohibited in many states. In the famous Baby M
case, the New Jersey Supreme Court, though allowed custody to commissioning parents in the
“best interest of the child”, came to the conclusion that surrogacy contract is antagonistic to
public policy. It must be noted that in the US, surrogacy laws are different in different states. In
USA, Gestational Surrogacy Act, 2004, deals with this aspect. The purpose of this Act is to lay
down consistent standards and procedural safeguards for the protection of all parties involved in
a gestational surrogacy contract in this State and to confirm the legal status of the new born as a
result of these contracts. These standards and safeguards are meant to facilitate the use of this
type of reproductive contract in accord with the public policy of the State. Later Johnson v.
Calvert, the American judiciary took a libertarian approach. Through this case the Supreme
Court extended constitutional umbrella to surrogacy controls and gave them a legal validity. The
court held that the surrogacy contract involved free, informed and rational choice by a woman to
use her body. InSurrogacy Parenting Associate v. Commonwealth of Kentucky,the court
propounded the intension test for the determination of natural mother. In re Marriage of John A.,
the court held that even though the commissioning parents are not biologically related to the
child, they are still her lawful parents given their initiating role as the intended parents in her
conception and birth. Even after separation of married coulple who opted for artificial
insemination, the husband would still continue to be the father of the of the offspring thus
produced as held in another case ofPeople v. Sorensen. InLamaritata v. Lucasthe court held, a
person who gives sperm for a woman to conceive a child by artificial insemination is not a
parent. Thus, the sperm donor has no legal rights. As to the statutory response, different states of
America have responded through legislation to the question of legalization of surrogacy. Some

17. states took a liberal approach and some totally shun their eyes towards the validity of surrogacy
contracts making them completely illegal. Surrogacy legislation in New Hampshire requires
judicial preauthorization of all surrogacy contracts subject to three conditions viz. informed
consent by parties, completion of psychological counseling and evaluation, absence of
unconscionable terms in the contract and orientation towards best interests of child. In Australia,
Kirkman sisters’ case sparked much community and legal debate and soon states in Australia
attempted to settle the legal complications in surrogacy. Now in Australia, commercial surrogacy
is illegal, contracts in relation to surrogacy arrangement is unenforceable and any payment for
soliciting a surrogacy arrangement is illegal.
CASE STUDY - JAN BALAZ V. ANAND MUNICIPALITY33
The commissioning parents in this case are of German nationality that entered into a surrogacy
contract with an Indian surrogate mother. The petitioner is the biological father but his wife is
not in a position to conceive a child. After the twin babies were born to the surrogate mother the
dispute which built up was regarding the citizenship of the babies and as to whose name would
be mentioned in their birth certificates.
The major issue in this case is the denial of Indian citizenship to the babies though their birth
mother is an Indian. Moreover, Germany did not recognize surrogacy, and therefore for the
purpose of obtaining VISA from the Consulate of U.K, it was essential that the children should
have the passport as they were born in India and not in Germany. The Passport Authorities did
not issue them the passports as per the need of petitioner who wanted to take the babies to
Germany where he would submit applications in order to change the nationality of the babies to
German. He contended that denial of passports was violative of Article 21 of Indian Constitution.
The birth certificate mentioned the name of surrogate mother which is in contravention to the
guidelines of ICMR, according to which the birth certificate should have the names of the
commissioning parents of surrogacy.
33
Jan Balaz v Anand Municipality &Ors. , AIR 2010 Guj. 21. ( AIR is All India Reporter and Guj. is Gujarat High
Court)

18. As per section 3 of the Citizenship Act 1955, both the babies are Indian citizen as they are born
in India. So it is humbly submitted that they are entitled to enjoy all the rights of Indian citizen
and the Passport Authority are hereby legally authorized to issue the passports to them failing to
which may be regarded as violation of Article 21 of the Constitution. Since surrogacy is not
prohibited in India, the twins were born in India to a surrogate mother who herself is an Indian
national. And according to section 3 (1) (c) (ii) of Citizenship Act, 1955 a child is a citizen of
India if one of whose parents is citizen of India. Also as per Birth and Death Registration Act
1969, one who conceives the child is regarded as legal mother or natural mother. The name of
the surrogate mother was mentioned in the birth certificate by the Registrar under Birth and
Death Registration Act 1969. One may argue that this may go against the ART Bill, 2010
according to which the birth certificate should possess the names of the commissioning parents.
But, it is submitted that this Bill has not been legalised in India till now and thus it is not binding.
Moreover, according to Black‟s Legal Dictionary[61] the word „born‟ is an act of being
delivered or expelled from mother‟s body whether or not placenta has been separated or cord
cut. In the present case, the children were „born‟ from the body of surrogate mother. Hence, she
should be the legal mother of the child.
ADVANTAGES AND DISADVANTAGES OF SURROGACY:
ADVANTAGES OF SURROGACY
[1] For infertile woman who can't conceive, surrogacy creates an opportunity for her and her
partner to parent a child who is their genetic offspring at least partially (if they use the father's
sperm and the surrogate's egg) or wholly (if they ask the surrogate to carry an embryo created
from the mother's egg and the father's sperm).
[2] A Homosexual couple can also have their own child (such as the Israeli gay couple who got
there baby through surrogacy) Yonatan and Omer Gher’s dream - to have a baby of their own -
come true. Yonatan was the donor. The two returned to their home country Monday with their
one-month-old son Evyatar.34
34
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19. [3] Single parents can also have children.
DISADVANTAGES OF SURROGACY
[1] Complex and long journey is required to get the needed procedures for surrogacy.
[2] Not all clinics support surrogacy so it may be difficult to find the right clinic.
[3] Some surrogates face acute emotional and psychological issues over letting the baby go.
[4] The couple and the surrogate may have difficulty making mutual agreement, such as
antenatal tests and how to manage the pregnancy, labour and deliver.
[5] Chances of exploitation of females is more in surrogacy.
[6] In case of divorce of intended parents before the completion of surrogacy the custody of child
remains question mark. (Baby Manji Yamada Vs. Union of India (UOI) and Anr) now the
custody is with Emiko yamada her grant mother).35
[7] Complex situation arises when both the commissioning parents refuse to take custody of the
child specifically when the child is born abnormal.
COUNTRIES WHICH ARE AGAINST SURROGACY
In the states of Arizona, New Jersey, and Michigan all forms of surrogacy are prohibited.
Kentucky,Nebraska, and Washington only surrogacy, based on commerce is prohibited. In
England, the law lets the surrogate mother receive some kind of reimbursement for genuine
medical and pregnancy related expenses. Surrogacy Contracts Act provides that introducing, or
agreeing to introduce; inducing; arranging or negotiating prospective parties to a surrogacy
contract is an offence. Commercial surrogacy is prohibited in European countries such as France,
35
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at:
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20. Greece, Denmark and the Netherlands. Germany, Sweden, Norway and Italy prohibit every kind
of surrogacy arrangements.36
SUGESSTION
• The commissioning parents should accept the custody of the commissioning child by the
surrogate regardless of the deformity, or any physical problem to the child. If they refuse
to do so then it should be considered as an offence.
• Surrogate agreements should be considered under ICA 1872 and A surrogacy contract
should be enforceable only if is approved by the court with an especial committee for it.
• Surrogate mother should be a married woman with experience of pregnancy an she
should be released from all the legal acts after the birth of the child and the birth
certificate should only include the name of the commissioning parents.
• If the commissioning couple separates or gets divorced after going for surrogacy but
before the child is born, then also the child shall be considered to be the legitimate child
of the couple.
• Surrogacy should be last option for the couples and its application should be approved
only upon the medical evaluation.
CONCLUSION
Through the thorough analysis of the concept like legislation, application, national and
international aspects, ethical and social issues , role of science and technology, judicial
responses with regards of surrogacy, it is clear that Surrogacy turned out to be a boon for the
needy. India has also emerged as a hub for the surrogacy and it has provided a stage for the
lost and depressed couple a hope for a complete family which is a final and ultimate step
towards a happy world.
Hence, the concept of Surrogacy should be dealt with the proper legislations and guidelines
so that this Godsend could be regulated in more efficient and better way.
36
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at:
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