Smith Chandra, NALSAR University of Law

Surogacy And India 1

A LEGAL PERSPECTIVE

Electronic copy available at: http://ssrn.com/abstract=1762401

 Smith Chandra, NALSAR University of Law

1. INTRODUCTION
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Jeremy Bentham looked upon ‘law’ as an instrument for securing the “greatest good of
the greatest number”. This project seeks to address one such question with regard to the issue of
surrogacy in India and, in the process, analyzes its various dimensions in order to ascertain the
basis which makes it imperative for the legislature to pass a law to explicitly address the issue. In
its quest, the project endorses the need for legalization of surrogacy from the perspective of
positive fundamental right of procreation guaranteed under Article 21 of the Indian Constitution
and the compelling state interest in maintaining the ‘rule of law’.

The world's second and India's first IVF (in vitro fertilization) baby, Kanupriya alias
Durga was born in Kolkata on October 3, 1978 about two months after the world's first IVF boy,
Louise Joy Brown born in Great Britain on July 25, 1978. Since then the field of assisted
reproductive technology (ART) has developed apace. The growth in the ART methods is
recognition of the fact that infertility as a medical condition is a huge impediment in the overall
wellbeing of couples and cannot be overlooked especially in a patriarchal society like India. A
woman is respected as a wife only if she is mother of a child, so that her husband's masculinity
and sexual potency is proved and the lineage continues. The problem however arises when the
parents are unable to construct the child through the conventional biological means. Infertility is
seen as a major problem as kinship and family ties are dependent on progeny. Herein surrogacy
comes as a supreme savior.

1.1 SURROGACY - MEANING

The word ‘surrogate’ has its origin from a Latin word ‘surrogatus’, meaning a substitute,
that is, a person appointed to act in the place of another. Hence a surrogate mother is a woman
who carries a child on behalf of another woman, either from her ovum or from the implantation
in her womb of a fertilized egg from other woman.

Black’s Law Dictionary, defines surrogacy as the process of carrying and delivering a
child for another person. The Britannica defines ‘surrogate motherhood’ as the practice in which

Electronic copy available at: http://ssrn.com/abstract=1762401

 Smith Chandra, NALSAR University of Law

a woman bears a child for a couple unable to produce children in the usual way. The Report of
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the Committee of Inquiry into Human Fertilization and Embryology or the Warnock Report
(1984) termed surrogacy as the practice whereby one woman carries a child for another with the
intention that the child should be handed over after birth.

A standard definition of ‘surrogacy’ is offered by the American Law Reports 1 in the

following manner:

“…a contractual undertaking whereby the natural or surrogate mother, for a

fee, agrees to conceive a child through artificial insemination with the sperm of
the natural father, to bear and deliver the child to the natural father, and to
terminate all of her parental rights subsequent to the child's birth.”

According to another classification, surrogacy can be traditional, gestational and donor

surrogacy. Traditional surrogacy involves the artificial insemination of the surrogate mother by
using the sperm of the intended father. Gestational surrogacy, on the other hand, involves the
creation of an embryo in a Petri dish and its implantation into the womb of the surrogate who
carries it to the term. Lastly, in donor surrogacy there is no genetic relationship between the child
and the intended parents as the surrogate is inseminated with the sperm, not of the intended
father, but of an outside donor.

2. RIGHT TO REPRODUCTION- A CONSTITUTIONAL RIGHT

1. 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”.
2. The Judiciary in India has recognized the reproductive right of humans as a basic right.
Vide B. K. Parthasarthi v. Government of Andhra Pradesh2, the Andhra Pradesh High

1
American Law Reports, Validity and Construction of Surrogate Parenting Agreement, 77 A.L.R. 4 70. (1989).

Electronic copy available at: http://ssrn.com/abstract=1762401

 Smith Chandra, NALSAR University of Law

Court upheld “the right of reproductive autonomy” of an individual as an aspect of his

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“right to privacy” and agreed with the decision of the US Supreme Court in Jack T.
Skinner v. State of Oklahoma3, which characterised the right to reproduce as “one of the
basic civil rights of man”.
3. In Javed v. State of Haryana4, 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 constitutional umbrella, surrogacy which allows an
infertile couple to exercise that right also gets the same constitutional protection.

2.1 POSITION OF ARTIFICIAL REPRODUCTIVE TECHNIQUE IN UK, USA

AUSTRALIA LEGAL SYSTEM

In England, based on the recommendations of ‘Warnock Committee,’5 the Surrogacy

Arrangements Act, 1985 was brought in to force.6 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.7
The Surrogacy Arrangements Act, 1985, declares initiation and involvement in
commercial surrogacy agreements to be a criminal offence. Further, the Human Fertilisation and
Embryology Act, 1990, makes surrogacy arrangement unenforceable by or against any person
making it. Under English Law, surrogacy is legal if it involves payment only of expenses
reasonably incurred by the surrogate mother, which have to be determined by parties. The
contract is not binding on either of the parties.

2
AIR 2000 A. P. 156
3
316 US 535
4
(2003) 8 SCC 369
5
Report of the Committee of inquiry in to human fertilization and embryology (Chairman-Dame Mary Warnock),
Her Majesty’s stationery office, 1984
6
The Surrogacy Arrangements Act 1985 in England is an Act to regulate certain activities in connection with
arrangements made with a view to women carrying children as surrogate moth
7
Sec. 30 of Human Fertilization and Embryology Act 1990 (UK) provides for Parental orders in favour of
gamete donors.

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In the United States of America also, commercial surrogacy seems prohibited in many
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states. In the famous Baby M case8, 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. Calvert9, 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. In Surrogacy Parenting Associate v. Commonwealth
of Kentucky10,the court propounded the intension test for the determination of natural mother.

In re Marriage of John A.11, 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 of People v. Sorensen.12 In Lamaritata v. Lucas13
the 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.

8
537 A.2d 1227
9 th
5 cal.4 84, 19 cal.Rptr.2d 494, 851 P.2d 776
10
704 s.w. 2d 209(February 06,1986)
11
61 Cal.App.4th 1410 (1998)
12
68 Cal.2d 280 (1968)
13
So.2d 316 (2002)

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As to the statutory response, different states of America have responded through

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legislation to the question of legalization of surrogacy. Some states14 took a liberal approach and
some totally shun their eyes towards the validity of surrogacy contracts making them completely
illegal15. 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’ case16 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.

3. LEGALIZATION OF SURROGACY IN INDIA

In Kolkata, litigation for legal custody of the first child born through surrogacy
agreement has already commenced. 17As costs of medical treatment are low in India, it is proving
to be an attractive hub for foreigners to procure benefits of medical tourism; especially
surrogacy18. Commercial surrogacy is emerging and doctors and surrogate mothers are engaging
into profiteering as evident from numerous newspapers accounts of surrogate women citing
money as the main reason for engaging in such arrangements. Women are being compelled by
their in-laws to engage in this emerging “business” and the not-so distant dreams of a high
standard of living, luxuries and a secure future for their children are driving women to make

14
Kentucky, Louisiana, Nebraska, and Washington, on the other hand, have taken a less restrictive approach,
passing legislation that voids only those surrogacy contracts that provide for compensation to the surrogate. In
contrast, Florida, New Hampshire, and Virginia have adopted the minority approach by making them legal and
enforceable but they prohibit commercial surrogacy, with an exception of expenses incurred as a result of pregnancy
and childbirth.
15
New York, North Dakota and Utah, the legislatures have taken a blanket approach, deeming all surrogacy
contracts to be void and unenforceable.
16
In Victoria, Linda Kirkman agreed to gestate the genetic child of her older sister Maggie(1988).
th
17
IVF Son for a Single Father, BBC News, 4 October, 2005, Available at <http://news.bbc.co.uk/ 2/hi/south_asia
/4309332.stm> (last visited on 24th August 2010).
18
Medical Tourism Booms in India, Economic Times, February 7, 2006.

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money through surrogacy.19 The status-conscious lower middle class is resorting to surrogacy for
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fulfilling its material and financial needs.
To legalize surrogacy, The Law Commission of India has submitted the 228th Report on
“Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights
and Obligations of Parties to a Surrogacy.” The following observations had been made by the
Law Commission20:
 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. However,
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.

19
Wanna Rent a Womb, Come to Anand, Times of India, February 11, 2006; See also Surrogate Mothers Lined Up
in Gujarat, The Hindu, March 2, 2006; Outsourcing a Womb, Hindu Business Line, April 6, 2007.
20
http://lawcommissionofindia.nic.in/

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 Legislation itself should recognize a surrogate child to be the legitimate child of the
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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 abortions should be governed by the Medical Termination of Pregnancy Act

1971 only.

The Report has come largely in support of the Surrogacy in India, highlighting a proper
way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is
another worrying factor which the law has to address. Also, commercialization of surrogacy is
something that has been issue in the min1d of the Law Commission. However, this is a great step
forward to the present situation.

Now the question arises that what form of surrogacy should be adopted? The most
appropriate choice is non-commercial surrogacy as its kin commercial surrogacy which converts
surrogacy into a business activity seemingly falls foul of Article 23 of the Constitution of India 21
and Section 23 of The word ‘traffic’ connotes an element of trade i.e. buying and selling and
commercial surrogacy being equivalent to baby selling certainly involves traffic in children. In
contrast, non-commercial surrogacy agreements, providing only for ‘compensation’ equivalent to
reasonable expenses incurred by the surrogate mother, pass the touchstone of public policy
considerations under section 23 the Indian Contract Act, 187222. Article 23 prohibits trafficking
in human beings while Section 23 makes agreements contrary to public policy unenforceable

21
Article 23- Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any
contravention of this provision shall be an offence punishable in accordance with law.
22
Section 23- The consideration or object of an agreement is lawful, unless- the Court regards it as immoral, or
opposed to public policy.

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embracing within its fold such contracts which are likely to deprave, corrupt or injure the public
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morality.23

According to the constitution, the ambit of right to life is wider than mere ‘animal
existence’ and goes on to include all aspects of life which make it worth living. Procreative
liberty and right to reproduction have been recognized as a part of right to life24 specifically
under Article 21 of the Constitution.25 As opposed to the negative right of freedom from State
interference, Article 21 has a ‘positive’ content encompassing the quality of life and ‘the right to
carry on such functions and activities as constitute the bare minimum expression of the human
self.’26 The strongest negative claim of infertile people would be the right to remain childless,
without forced medical treatment or even pressure to seek treatment in the form of social
ostracism or ridicule. But if the natural process of family life and reproductive activity does not
result in pregnancy, the claim regarding assisted reproduction through third part intervention
necessarily becomes positive obligating the State to ensure facilitation of this right through
legislation. Though the State has no obligation to fund or provide facilities to the willing couples,
it does have an obligation to make the legal obligations certain and protect weaker parties against
exploitation.

23
State of Rajasthan v. Basant Nahata AIR 2005 SC 3401
24
Skinner v. Oklahoma,316 U.S. 535 (1942).
25
S.Amudha v. Chairman, Neyveli Lignite Corporation, (1991) IILLJ 234 Mad; B.K. Parathasarthi v. Government
of A.P., 2000(1) ALD199.
26
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; C.E.R.C. v. Union of India,
AIR 1995 SC 922; Kapila Hingorani v. State of Bihar (2003) 6 SCC 1; Mohini Jain v. State of Karnataka AIR 1992
SC 1858.

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4. SUGGESTIONS AND CONCLUSION

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SUGGESTIONS

 Surrogacy agreements are to be treated on par with other contracts and the principles of
the Indian Contract Act 1872 and other laws will be applicable to these kinds of
agreements.
 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 or intended
parents/parent of the baby.
 The child born to a married couple or a single person through the use of ART shall be
presumed to be the legitimate child of the couple or the single person, as the case may be.
 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.

CONCLUSION

Surrogacy involves conflict of various interests and has inscrutable impact on the primary
unit of society viz. family. Non-intervention of law in this knotty issue will not be proper at a
time when law is to act as ardent defender of human liberty and an instrument of distribution of
positive entitlements. At the same time, prohibition on vague moral grounds without a proper
assessment of social ends and purposes which surrogacy can serve would be irrational. Active
legislative intervention is required to facilitate correct uses of the new technology i.e. ART and
relinquish the cocooned approach to legalization of surrogacy adopted hitherto. The need of the

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hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and

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prohibit commercial ones.

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While the Indian government has been pushing the country as a medical tourism
destination, the issue of wealthy foreigners paying poor Indians to have babies has raised
ethical concerns in many Indian minds about “baby factories”.

The Confederation of Indian Industry, a leading business association, estimates

the industry now generates more than $2 billion in revenues annually.

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