SURROGACY LAWS IN INDIA : A JURISPRUDENTIAL STUDY

Submitted by:

Moon Mishra

UID: (SF0117029)

B.A. LLB (2nd Year, 3rd Semester)

Faculty in-charge:

Saheb Choudhury

Assistant Professor of Jurisprudence

NATIONAL LAW UNIVERSITY, ASSAM

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 TABLE OF CONTENTS

[1]INTRODUCTION............................................................................................................2

[2]SURROGACY LAWS IN INDIA................................................................................3-5

[3]COMMERCIAL SURROGACY : A JURISPRUDENTIAL APPROACH...........5-9

[3.1]The Individualistic Perspective

[3.2]The Ethical Perspective

[3.3]The Utilitarian Perspective

[4]CONCLUSION........................................................................................................... 9-10

BIBLIOGRAPHY............................................................................................................. .11

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[1]INTRODUCTION

As per the common belief of a traditional society, a family is considered incomplete without
children. Emergence of birth technologies in the fertility industry acts as a new hope to get
rid of the social stigma attached with surrogacy and infertility. Because of commercial
surrogacy serious concerns have been caused in the modern times due to social, medico-legal
and ethical complexities which are involved in the process.1

As there is no law in India that regulates surrogacy, the clinics regulating surrogacy functions
as per their own wish and understanding. The Surrogacy(Regulation) bill which was
presented in the parliament in 2016, received an active response from the parliament. The bill
condemned commercial surrogacy and banned it. Although, it is have still not been passed,
yet the affect of the draft of the bill is such that most of the clinics practicing surrogacy have
already abolished the practice.

The abolition of commercial surrogacy will affect both the surrogate mother and the
intending parents, in a negative manner. The banning of this practice is like closing an escape
from the negativities, especially in a social set-up as that of India. The patriarchy, the social
stigmatization , the social norms and the religious beliefs along with the bill draft together
leads to the exploitation of women, the protection from which was the prime focus of the
presented draft.

In this project, an attempt has been made to critically analyse the laws relating to surrogacy
and the condemnation of commercial surrogacy in the light of jurisprudence. An attempt has
been made to understand the justification of commercial surrogacy from an individualistic,
ethical and utilitarian perspective. The struggles faced by both the infertile couples and the
surrogate mothers, have been addressed and how commercial surrogacy can be a solution to
these struggles has been shown.

[2]SURROGACY LAWS IN INDIA

According to the Black’s Law Dictionary, surrogacy means “the process of carrying and
delivering a child for another person”.

The Surrogacy(Regulation) Bill 2016 defines commercial surrogacy as “ commercialisation

of surrogacy services or procedures or its component services or component procedures
1
Apoorva Singh Katiyar ,Surrogacy : A Hope to Childless Couples along with a Challenge of Law,
INTERNATIONAL JOURNAL OF JURISPRUDENTIAL STUDIES

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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, except the medical
expenses incurred on the surrogate mother and the insurance coverage for the surrogate
mother”2

Commercial Surrogacy was made legal in India in 2002.With the legalisation of Surrogacy,
certain guidelines were released by Indian Council of Medical Research. 3 In 2010, the
parliament also passed the Assisted Reproductive Technology Bill 4 in order to smoothly
regulate the surrogacy industry. Because of relatively lower cost involved, India is emerging
as a leader in the commercial surrogacy. In addition to it, the increasingly competitive nature
of the Indian clinics adds to the factors causing the increase in demand of the Indian
surrogates.

In Manji Yamada Case5 the Supreme Court also made commercial surrogacy legal in India
and held that held that commercial surrogacy is permitted in India with a direction to the
Legislature to pass an appropriate Law governing Surrogacy in India.

Further in Jan Balaz v. Union of India6 it was held that the babies born to a surrogate mother
who is an Indian citizen but the biological father is a foreign national by birth would get the
Indian Citizenship.

Presently, in India there is no enforceable law to govern the regulation of Surrogacy, or to

ensure the legal rights of the commissioning parents to the child. There is no assurance of the
protection of the rights of the surrogate mother as well. When these matters reach the Court,
it decides the case, on ad hoc basis, sometimes by referring to the surrogacy laws of other
countries. There is no distinct legal regulation to regulate the Surrogacy arrangements.7

The Surrogacy (Regulation) Bill that was presented in the parliament in 2016, got an active
response. Though the aforesaid mentioned bill is still pending and has not been passed yet.

2
The Surrogacy(Regulation) Bill 2016
3
,Anonymous, Surrogacy Laws in India, Right Now THE SWADDLE( Mar 27 2018).
4
The Assisted Regulation Bill 2010
5
Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518.
6
From L.P.A. No. 2151 of 2009, High Court of Gujarat.
7
Ibid.

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The bill, if passed will ban commercial surrogacy in India. The following are the highlights
of the Bill :-

1. The intending couple must be married for at least five years, and one of them must be
infertile. The surrogate mother, have to be a married woman, having a child of her
own. She should also be a close relative to the intending parents.
2. Apart from the medical expenses, no payment will be provided to the surrogate
mother. The intending parents will be considered to be the biological parents of the
surrogate child.
3. Appropriate authorities will be appointed to give eligibility certificated to the
surrogate mother and the intending parents. The surrogacy clinics will also be
regulated by these authorities.
4. Advertising surrogacy, undertaking it for money or exploiting the surrogate mother
will be punishable with imprisonment for ten years and the fine of up to Rs. ten
lakhs.8

According to this bill a woman can become a surrogate mother only for altruistic purpose and
under no circumstances she will be paid for it, although payment can be made towards
medical expenses. This bill condemned the practice of commercial surrogacy, and proposed
to ban the same. The vehement effect of banning this practice and its importance for the
benefit of the society has been discussed further under the light of Jurisprudence.

[3]COMMERCIAL SURROGACY : A JURISPRUDENTIAL APPROACH

[3.1]The Individualistic Perspective

The ability to make free decisions concerning one’s body and reproductive life without the
presence of any coercion is one of the most important components of reproductive rights.
This also includes the right to decide about the availability and access to conception. The
issue that to what extent the consent of the women who undergo commercial surrogacy is free
can be perceived from different perspectives. The act of the surrogate mother of making
available one’s body in order to provide a child to a couple which cannot conceive, is a
matter which can be observed from different point of views.

From the humanistic perspective, the circumstances under which the contractual agreement is
formed between the intended parents and the surrogate mother should also be taken into
8
Ibid.

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consideration.9 It can be argued that the consent of a woman to give her womb on rent can be
caused because of her financial needs. The surrogate mothers, might also require money for
the education of their children and for running their households. Not only that, since in an
Indian household, the man, being the earning member of the family, is considered superior,
this practice also breaks the patriarchy, by providing the dominated women, an independent
standing in the family.

In India, the society expects the women to ensure the descent of the family by becoming
mothers. It is considered an objective of life to reproduce, and transmit the genes of the
family to the further generations. 10 Since, the bloodline’s purity is linked with the sexuality
of the women, when it gets threatened they are the ones who have to face the most social
stigmatization. In India, the childless women are even subjected to domestic violence,
emotional and verbal abuse. Hence, surrogacy is also a means for these women to escape
these negatives.

Hence, the dilemma, if the consent of the surrogate mother and the intended parents is free is
cleared as even if they undergo commercial surrogacy under financial need or gender
stigmatization, they are not coerced to do the same, as the purpose is to strengthen their social
standing and thus their consent is ‘free’.

Robert Nozick, following the basic moral principle as laid down by Immanuel Kant, asserts
that a Human Being is a rational agent endowed with self awareness, the possibility of
predicting and opting a plan for life, having free will, has dignity and cannot be used as
against his will as a resource. Nozick describes individual human beings as self owners as
Immanuel Kant.11 Hence, it can be said that both the parties involved in the practice of
surrogacy are self owners and can decide for themselves. Restricting the surrogate mother
from a means of livelihood, and from attaining her financial goals is not the right approach.

In the same line, Nozick also states that individuals have certain rights, as rights to life,
liberty etc. These rights act as a restrain to others to not force one against his will. 12 Thus, the
provisions of the pending bill of Surrogacy(Regulation) which bans commercial surrogacy
violates the individual rights of the individual.

9
Virginie Rozee Gomez, Surrogacy from a Reproductive Rights Perspective : The Case of India,
CAIRN.INFO(2014)
10
Ibid.
11
Edward Feser ,Robert Nozick, INTERNET ENCYCLOPEDIA OF PHILOSOPHY.
12
Ibid.

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This thesis of self-ownership, goes back to the philosophy as stated by John Locke, that
claims that the individuals own themselves, their body, abilities, labor and talents.13 This
theory clarifies that surrogate mothers in this case, must have the right over their bodies and
decide for themselves.

In his Essay On Liberty, John Stuart Mill’s prime concern was to assure that the individual
liberty does not get restricted because of popular sovereignty. 14 Mill also states that every
individual has an individual nature and it is his choice to decide that what kind of a life will
make him happy, and will lead to the genuine fulfilment, on the basis of one’s nature. 15 The
financial necessity as a motivation for undergoing surrogacy is not always applicable. Many
surrogates, earning more than the average working still undergo this practice as they consider
it as a better option to achieve maximum results or finances, as compared to factory work. 16

[3.2]The Ethical Perspective

Thomas Aquinas stated that the laws that govern the universe are known as eternal law,
which controls both animate and inanimate things. All the things are subject to this law and
derive from it certain inclination towards those changes actions and aims that are proper to
them. Aquinas went on to clarify that irrational creatures also partake the eternal law, but not
in a rational manner.17 It can be claimed that Surrogacy is not in correspondence with God’s
Will.18

As against this view it cannot be ignored that there is no proof to assert that God’s Will does
not want the infertile parents to have a genetically-linked child even when the means are
available. There is a possibility that this reproductive technology is a part of God’s Will to
reduce suffering and maximise utility.

In the same line John Locke has also said that men by nature are free and equal, as against the
claim that God has made all people naturally subject to a monarch/government. 19 This
assertion is a counter to the Surrogacy(Regulation) Bill 2016, as the it supports the fact that
the surrogate mother and the intending parents are free individuals and thus should act as per
their best interests.
13
Ibid.
14
Nicholas Capaldi ,The Liberitarian Philosophy of John Stuart Mill, QUEENS COLLEGE.
15
Erica Stonestreet, On Individuality, PHILOSOPHY NOW (2009)
16
Ibid.
17
Charles Dougherty, The Ethical Case Against Surrogacy , HEINONLINE (2018)
18
Suri Ratnapala, JURISPRUDENCE, 152-153 (2nd edi 2013)
19
Tuckness, Alex, Locke’s Political Philosophy, STANFORD ENCYCLOPEDIA OF PHYLOSOPHY( Nov 9, 2005)

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Surrogacy is condemned in Catholicism and Islam, but Hinduism and Buddhism allow it.
Leaving the religion aside, in India, marriage is considered very pure. It is also compared to a
sacrament, in Hinduism. Surrogacy as a practice is thus particularly stigmatized in the Indian
society, as it is compared with adultery and prostitution. This stigmatization is the primary
reason that Surrogacy is not seen as ‘work’ in India. Emmanuel Kant asserted that humans
have dignity and things have price. All authors who have studied Surrogacy in India, interpret
surrogacy as a “exploitative, gendered, stigmatized labour, but labour nonetheless” One
prostitute in an interview had said that “they have converted a baby into a commodity and
pregnancy in a form of labour.”20

[3.3]The Utilitarian Perspective

“The greatest happiness principle” which is a part of the moral philosophy of Jeremy
Bentham states that anything which promotes the greatest amount of happiness is morally
right.21 Involuntary childlessness and infertility has affected majority of world’s child bearing
population.22 In India, a social stigma is attached to infertility. Those women who are
infertile, are often looked down upon and are subjected to cruelty. Because of the patriarchal
nature of Indian families, it is the woman only who is blamed even if man is infertile. In such
a situation apart from attaining the pleasure of parenthood, these intending couples can also
escape the pain of this stigmatization and can achieve the greatest happiness.

On the other hand, the surrogate mothers, who undergoes surrogacy, is either an uneducated,
unemployed, poverty stricken woman, or a woman who just wants to attain maximum profit,
as clearly, the surrogacy industry far more benefit as compared to the work done, than many
other jobs. In the former case, where the surrogate mother, rents her womb due to financial
restraint, help her to come out of her poverty. It provides her an independent source of living
and strengthens her standing in the patriarchal Indian Family.

John Stuart Mill also, was an advocate of the utilitarian principle as seeded by Jeremy
Bentham. His hedonism was called “qualitative hedonism” which asserted that though the
only desirable thing is “pleasure”, there are some pleasures which are of higher quality than
the other pleasures. One such higher pleasure that he stated was the pleasure of moral

20
Ibid.
21
William Sweet, Jeremy Bentham, INTERNET ENCYCLOPEDIA OF PHYLOSOPHY.
22
George Palattiyil,Globalization and cross-border reproductive services : Ethical implications of surrogacy in
India for Social Work, HEINONLINE (Nov, 3, 2018)

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sentiments.23 Some surrogate mothers, undergo commercial surrogacy, despite being
financially affluent. Their purpose is merely providing a child to the childless so that they can
perceive maximum satisfaction and thus maximum pleasure.

Hence, the practice of commercial surrogacy, that maximises the pleasure of both, the
intending parents and the surrogate mothers and thus provides maximum utility, is morally
justified. This practice leads to a win-win situation of both the parties by maximising utility
and thus, must be practiced.

[4]CONCLUSION

Commercial Surrogacy as against the social stigma attached to it, is a practice which is
beneficial for a big section of the society and thus must not be banned. In the light of the
individualistic perspective, the ethical perspective and the utilitarian perspective it is
established that the banning of the commercial surrogacy is not justified.

It is established from the individualistic/ libertarian perspective that the it is the surrogate
mother and the intending parents are self owners and have the liberty to choose their way of
living. The restriction of their rights by the government is unjustified.

It is established from the ethical perspective that there is a possibility that it is the God’s Will
to minimise suffering of the intending couple and the surrogate mother, by this means of
conception. Thus, the argument that commercial surrogacy is a practice, against God’s Will is
defeated. The issue of the stigmatization of commercial surrogacy as labour and not work is
also addressed. The pending bill of surrogacy regulation, justifies the stigmatization by
condemning this practice. This disrespects, not only, the struggle and work of several women
and couples, engaged in this practice, but also the status of the children produced as its result.

It is established from the utilitarian perspective that commercial surrogacy is a practice which
maximises pleasure, and minimises the pain, and thus maximises utility. It is beneficial for
both the parties, and fulfils their different needs as per the purpose of their indulgence in the
practice.

To conclude, it is suggested that banning of the practice of commercial surrogacy, will be

supporting its stigmatization. The noble deed of the surrogate mothers should be respected
and their rights must be protected. In order to fulfil the objective of the

23
Michael Schefczyk, John Stuart Mill : Ethics , INTERNET ENCYCLOPEDIA OF PHYLOSOPHY.

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Surrogacy(Regulation) Bill 2016, which is the protection of women from exploitation,
instead of banning the practice, better laws should be enforced, in order to regulate it. The
recognition of the rights of the surrogate mothers , if does not remove the label of “labour”
from this practice, will at least be one step towards the same.

BIBLIOGRAPHY

PRIMARY SOURCES

1. The Surrogacy(Regulation) Bill 2016

2. The Assisted Regulation Bill 2010

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SECONDARY SOURCES

Books Referred

1. Suri Ratnapala, JURISPRUDENCE, 152-153 (2nd edi 2013)

Articles Referred

1. Anonymous, Surrogacy Laws in India, Right Now THE SWADDLE( Mar 27 2018).
2. Apoorva Singh Katiyar ,Surrogacy : A Hope to Childless Couples along with a
Challenge of Law, INTERNATIONAL JOURNAL OF JURISPRUDENTIAL
STUDIES
3. Charles Dougherty, The Ethical Case Against Surrogacy , HEINONLINE (2018)
4. Edward Feser, Robert Nozick, INTERNET ENCYCLOPEDIA OF PHILOSOPHY.
5. Erica Stonestreet, On Individuality, PHILOSOPHY NOW (2009)
6. George Palattiyil, Globalization and cross-border reproductive services : Ethical
implications of surrogacy in India for Social Work, HEINONLINE (Nov, 3, 2018)
7. Michael Schefczyk, John Stuart Mill : Ethics , INTERNET ENCYCLOPEDIA OF
PHYLOSOPHY.
8. Nicholas Capaldi ,The Liberitarian Philosophy of John Stuart Mill, QUEENS
COLLEGE.
9. Tuckness, Alex, Locke’s Political Philosophy, STANFORD ENCYCLOPEDIA OF
PHYLOSOPHY( Nov 9, 2005)
10. Virginie Rozee Gomez, Surrogacy from a Reproductive Rights Perspective : The
Case of India, CAIRN.INFO(2014)
11. William Sweet, Jeremy Bentham, INTERNET ENCYCLOPEDIA OF
PHYLOSOPHY.

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