Surrogacy agreements: its validity & the dilemma of surrogate mothers:

Surrogacy Agreements and their validity is a topic involving great debate. This article,
aims to bring to the fore the situation and condition of the surrogate mothers when they
enter into the surrogacy agreement, its after - affects on her and the impact of these
surrogacy agreements on the Surrogate mother as well as on the society at large. The
authors, through this article also try to put forth some suggestions to tackle this newly
emerged area. This area is not governed by any legislation in India and there is a need to
regulate this emerging trend keeping in view the present societal needs and demands.

MEANING AND TYPES:

To begin with, Surrogacy defined in the dictionary means a substitute. A surrogate

mother is someone who gestates and then gives birth to a child for another person, with
the full intention of handing the child over to that person after the birth.

A surrogate parenting agreement is an agreement in which a surrogate agrees for a fee to

be impregnated through artificial insemination, to carry the child to term, and, after birth,
to deliver the newborn baby to the biological father and to surrender all the parental
rights she would otherwise have.[1]

Surrogacy can be categorized under the following types:

Traditional Surrogacy: This method uses the egg of the Surrogate Mother and the
sperm of the Intended Father. This can be performed in an IVF clinic, but more often the
technique of Artificial Insemination happens at home. In this situation the baby is
biologically related to the Intended Father and the Surrogate Mother. Although it is the
simpler of the two types of surrogacy in as much as conceiving is less complicated,
mentally it can be the hardest to accept. Not only for the Surrogate Mother to give up her
own biological child, but also for the wife to accept a child which her husband has
fathered with another woman.

Gestational Surrogacy: This method uses the egg of the Intended Mother combined
with the sperm of her husband or donor sperm. In this case an IVF clinic is always
required. The Intended Fathers sperm has to be frozen for some time. A baby conceived
by this method has no biological connection to the Surrogate.

Altruistic surrogacy: It is a situation where the surrogate receives no financial reward

for her pregnancy or the relinquishment of the child (although usually all expenses
related to the pregnancy and birth are paid by the intended parents such as medical
expenses, maternity clothing, and other related expenses).

Commercial surrogacy: This is a form of surrogacy in which a gestational carrier is paid

to carry a child to maturity in her womb and is usually resorted to by well off infertile
couples who can afford the cost involved or people who save and borrow in order to
complete their dream of being parents. This procedure is legal in several countries
including in India where due to excellent medical infrastructure, high international
demand and ready availability of poor surrogates it is reaching industry proportions.
Commercial surrogacy is sometimes referred to by the emotionally charged and
potentially offensive terms wombs for rent, outsourced pregnancies or baby farms.

Thus, the main intention of any surrogacy agreements is to provide the intended parents
with a child. The emotion of the surrogate is not given consideration, neither before
entering into the agreement nor after the agreement. The surrogate has to hand over the
child to its intended parents after the birth of the child without caring for her own
emotions for the child. It would not be wrong to say that, it is illogical to believe that the
child will find more affection from the mother who has felt no physical pain in bearing
the child for the mere reason that the child is genetically hers.

SURROGACY AGREEMENTS: QUESTION OF VALIDITY

For any agreement to be enforceable the conditions mentioned under Section 10[2] of the
Contract Act, 1872 must be satisfied. It provides that for an agreement to be contract, it
has to be made by free consent of the parties competent to contract[3], for a lawful
consideration[4] and with a lawful object[5]. The contracts should not have been declared
to be void under the Act.[6]

Section 23 provides that unlawful consideration is that which is forbidden by law or is of

such nature that it would defeat the provisions of any law or is fraudulent or involves or
implies injury to the person or property of another or it is regarded by the court as
immoral or opposed to public policy.[7]

The agreement of surrogacy cannot be an enforceable contract since it suffers from

various infirmities as opposed to the conditions required to be satisfied. The surrogacy
contract is entered into by the parties where the surrogate is unduly influenced because of
her economic incapacities. As has been argued,[8]

Surrogate mother contracts may also violate public policy against exploiting financially
needy women. Professor Martha Field recognizes that surrogate mothers are either
unfairly tempted by the generous payment offered or else they are oppressed by being
paid little or nothing for womans work The offer of financial payment may induce poor
women to use their reproductive abilities to become professional baby makers[9]

Therefore, such contracts which involve unduly influence should not be recognised. Such
agreements do infringe upon the free consent of the parties and hence are violative of this
section.

[e]ven when they are not in direct violation of baby selling laws, courts may find
surrogate mother contracts invalid because they are contrary to a states public policy
prohibiting the sale of human beings. The basis for this argument is that public policy and
private morality view the treatment of human infants as chattels as an abhorrent and
morally distasteful notion.

The law relating to undue influence was aptly laid down in the case of Central Inland
Water Transfer Corporation Ltd vs Brojo Nath Ganguly[10] where the facts were such
that two companies had merged and the terms contained such that the employment of the
employees of the merging company was unusually drafted. The Court held that:

the courts will not enforce and will, when called upon to do so, strike down an unfair and
unreasonable contract, or an unfair and unreasonable clause in a contract, entered into
between parties who are not equal in bargaining power.[11]

This principle applies as laid down by the Court:

the above principle will apply where the inequality of bargaining power is the result of
the great disparity in the economic strength of the contracting parties, where the
inequality is the result of circumstances, whether of the creation of the parties or not. It
will apply to situations in which the weaker party is in a position in which he can obtain
goods or services or means of livelihood only upon the terms imposed by the stronger
party or go without them. It will also apply where the man has no choice, or rather no
meaningful choice, but to give his assent to a contract or to sign on the dotted line in a
prescribed or standard form or to accept a set of rules as part of the contract, however
unfair, unreasonable and unconscionable a clause in that contract or form or rules may be.
This principle, however, will not apply where both parties are businessmen and the
contract is a commercial transaction.[12]

In matters involving Surrogacy agreements, the surrogate is generally in lower bargaining

position as compared to the intended parents and because of her economic backwardness;
she is forced to sign such an agreement.

Also, the consideration of the agreement is opposed to public policy as required under
section 23. Public policy comprehends the protection and promotion of public welfare. It
is a principle of law, under which freedom for contract of private dealings is restricted by
the law for the good of the community.[13] Reference to public policy requires taking
into account the interest of persons other than the parties.[14]

With the growing tendencies of affluent foreigners coming in the nation and thereafter
luring the poor women with money so as to rent their womb and get a child, it needs to be
curbed and till the state comes up with any specific guidelines in this regard, such
practices should be curtailed by the Court in the interest of protection of public policy.

It is of relevance to refer to the observations in the case of In re Baby M[15]. The Court
invalidating the contract observed:

We invalidate the surrogacy contract because it conflicts with the law and public policy
of this State. While we recognize the depth of the yearning of infertile couples to have
their own children, we find the payment of money to a surrogate mother illegal, perhaps
criminal, and potentially degrading to women. Although in this case we grant custody to
the natural father, the evidence having clearly proved such custody to be in the best
interests of the infant, we void both the termination of the surrogate mothers parental
rights and the adoption of the child by the wife/stepparent. We thus restore the surrogate
as the mother of the child. We remand the issue of the natural mothers visitation rights to
the trial court, since that issue was not reached below and the record before us is not
sufficient to permit us to decide it de novo.

Baby-selling potentially results in the exploitation of all parties involved. Conversely,

adoption statutes seek to further humanitarian goals, foremost among them the best
interests of the child. The contracts basic premise, that the natural parents can decide in
advance of birth which one is to have custody of the child, bears no relationship to the
settled law that the childs best interests shall determine custody.[16]

Therefore these contracts should be declared to be void on the grounds of not been
entered into by the parties with free consent, the consideration being forbidden by law of
the land in force and the same being against the prevalent public policy of the State.

In re Baby, it was found that the payment of money to a surrogate mother is illegal,
perhaps criminal, and potentially degrading to women. The case also suggested that the
surrogate mother is being exploited because she never makes a totally voluntary,
informed decision, for quite clearly any decision prior to the babys birth is, in the most
important sense, uninformed, and any decision after that, compelled by a pre-existing
contractual commitment, the threat of a lawsuit, and the inducement of a $10,000
payment, is less than totally voluntary. Her interests are of little concern to those who
controlled this transactionthus, it is unlikely that surrogate mothers will be as
proportionately numerous among those women in the top 20 percent income bracket as
among those in the bottom 20 percent.

Also, it is a well established law in India that adoption before birth of a child is illegal.
This observation clearly indicates that the biological parents should have sufficient time
to understand the implications of the adoption. In light of this observation, it can clearly
be stated that the surrogacy contract could not be held to be valid in this country since it
determines the adoption of the child before its birth. In India there is no specific
legislative mandate that requires to be followed by the state agencies in regard to fate of
the child born out of surrogacy treatment. We have only some guidelines related to
Surrogacy and IVF treatment issued by Indian Council of Medical Research. Thus
keeping in view the above-mentioned points, surrogacy agreements should be invalidated
and termed as void.

AFFECT OF SURROGACY CONTRACTS ON SURROGATE MOTHERS

The most adversely affected in this whole dealing is the Surrogate mother who signs a
contract either for want of money or unawares of the consequences of this act. Asking a
mother to give up her child is against public policy. A surrogate mothers promise to give
up the child alienates a substantial proportion of her procreative rights, some of which the
law already permits her to alienate.[17]

A surrogate mothers procreative rights, rest on more than genes. Even if she contributed
no ovum,[18] she would have a strong claim as a biological mother. During the nine
months of her pregnancy, physical and emotional bonds form between mother and child.
These bonds, which perhaps influence her decision to keep the child, may contribute to
her self image as a mother. Many people view their emotional bonds with their children
as parts of their existence. Furthermore, the decision to give up a child with whom one
has an emotional bond seems precisely the sort of decision that, if ones values later
change, would seem an irrational self-betrayal[19]. This would prove to be derogatory to
the surrogate mothers life if the child is snatched away from her just when she had
developed close emotional ties with the child she has carried for nine months.

The competing claims of the intended parents and the surrogate do not justify alienation.
The law never enforces a pregnant womans promise to consent to adoption after the child
is born.[20] Similarly, the law should not seek surrender of a child from a surrogate who
had promised to consent to adoption after the child is born under emotional or economic
duress. The surrogate mothers situation lies somewhere between two cases. Like parents
who consent to adoption after birth, she promised to give up the child unless less stressful
conditions than those of a pregnant woman who needs money. But like the pregnant
woman, she promises to give up the child before she knows how she might change during
the pregnancy. The inalienability of parental rights in the second case, however, cannot
rest on the mere possibility of regret; any parent who consents to adoption might change
her mind. The threat to personal identity from giving up ones child and then regretting the
decision seems equally severe irrespective of when the promise is made.

Further, such a contract is specifically forbidden under the law of land as declared by the
Apex Court in the Laxmi Kants Case[21] wherein it was specifically prohibited to agree
to give the child in adoption before the child was born. However, in these cases, the
parties agree to give the child in adoption to the Intended parents, who generally are
foreigners even before the mother was pregnant. Hence, the contract can also be declared
to be invalid on the ground of being forbidden by law.

The recent decision by the Supreme Judicial Court in the moot case of R.R. v. M.H.[22]
must be cited in this parlance. In this case, the court created some guidelines under which
those arrangements might be given effect. The criteria the court felt were important
included (1) that the surrogate be an adult who had had at least one successful pregnancy,
(2) that her husband give his informed consent to the surrogacy agreement in advance, (3)
that the mother, her husband and the intended parents be evaluated in advance for the
soundness of their judgment and for their capacity to carry out the agreement, and (4) that
the intended parents be suitable persons to assume custody of the child and all parties
have the advice of counsel.

Proponents of the practice must respond to the communitarian concern that surrogacy
commercializes childbearing and family relationships generally.[23] As Professor Field
recognizes, the rhetoric of free choice can be misleading when the range of choice is
limited and social conditions are coercive.[24] India has today become a hub of surrogate
mothers whose services are hired by foreign couples to have child. The state of Gujarat
tops this list as maximum surrogates are from this state. The reason for India being
chosen by foreign couples is its backwardness and economic incapacity of the surrogates.

Field argues that surrogacy contracts, if legal, not be enforceable over the surrogate
mothers objection. Legalizing surrogacy contracts while protecting the surrogate mothers
right to rescind the agreement would both respect a surrogate mothers right to choose and
offer some protection against exploitation.[25]

India, in lack of any specific legislation on this point does not safeguard the interest of
the Surrogate Mother. There is no remedy given in the ICMR guidelines in case of the
contract not being adhered to. Thus, in case the surrogate refuses to hand over the baby,
she should not be forced to do so in the present scenario (in absence of any legislation to
that effect).

The relinquishment of parental rights before the birth of a child is not binding in adoption
law; clearly, relinquishing such rights prior to conception should not be binding either.
Thus the contract signed by the surrogate before conception of the child or without even
giving her the chance to reflect upon the issue of handing over her child should not be
made binding on her.

Noting that the constitutional right to choose an abortion cannot be contractually waived,
Field makes a compelling analogous case against specific enforcement of surrogacy
contracts over the wishes of the mother. Moreover, even if surrogacy is, as some
proponents contend, merely a contract for services, personal service contracts are
generally not specifically enforceable.[26]

Higher fees also exploit women by making surrogacy arrangements harder to resist for
women who have no other means of livelihood. Without a concrete proposal such as
Fields, it would be hard to limit the range of legal claims that an open ended notion of
exploitation might support, given that economic necessity coerces people into accepting a
wide range of dangerous or unpleasant jobs.[27]

To date, only a few state courts and state attorneys general have considered the legal
implications of surrogate mothering. Perhaps because there are no state statutes
addressing this issue directly, the courts that have dealt with surrogate mothering
contracts have applied existing paternity acts[28] or adoption statutes, which typically
prohibit prospective parents from paying for adoptions.[29] Most of these courts have
held the contracts void.[30]
CONCLUSION

In light of the above points, it would not be wrong to say that Surrogacy Agreements, in
the name of Technological advancements is defeating real human emotions. While trying
to bring happiness in one family, these agreements may cause irreparable harm to
someone else’s life. Surrogacy for pay is thus a contract of personal service and must be
prohibited. These agreements conflict with public policy and thus are unenforceable.
Instead of begetting children through hiring of a surrogate or other similar means,
childless parents should adopt homeless kids and orphans who need proper parenting and
who are in want of better needs. Medical Science has given a ray of hope to childless
parents but this means of surrogacy should be only adopted in case of lending of ones
womb for Altruistic surrogacy (as discussed in the beginning of the article) where there is
no involvement of money. In addition, some mechanism must be established for
investigating the adopting couples fitness as parents before handing over the child to
them so as to ensure the childs future. Thus a surrogacy agreement should never
determine the fate of a child. Finally, surrogate parenting agreements should give the
surrogate mother a period of time after the child is born to decide whether she wants to
surrender the child. Otherwise, the surrogate parenting agreement would be voidable at
her option. If she decides not to surrender the child, a custody decision must be made
based on the best interest of the child without regard to the surrogate agreement.

Surrogacy arrangements are also in conflict with principles of international jurisprudence,

in particular the UN Conventions on the Right of the Child. All surrogacy arrangements
present enormous complications for the legal status of children especially in the face of
the reform movement which has taken effect in the States. A child born out of Surrogacy
agreement may face identity crisis in future leading to unending frustration in life. Their
legal status becomes a big question.

Thus, despite the fact that surrogate parenting agreements can be made to conform to
adoption statutes, society would be better served if infertile couples would provide a
home for some of the thousands of children currently awaiting adoption.

[1] Brophy, A Surrogate Mother Contract to Bear a Child, 20 J. FAM. L. 263 (1982).
Typically, the parties to a surrogate parenting agreement are the surrogate, the biological
father, and (where appropriate) the surrogates husband. In an effort to circumvent baby-
selling statutes, the wife of the biological father is generally not a party to the contract.
Surrogate Parenting Associates, Inc. vs Commonwealth ex rel. Armstrong, 704 S.W.2d
209, 210 (Ky. 1986). The biological father and his wife will generally be referred to
herein as the adopting couple. Under this form of surrogate parenting agreement, the
surrogate is both a genetic and gestational surrogate. She is a genetic surrogate because it
is her egg that is fertilized and she therefore has a genetic link to the child. She is a
gestational surrogate because she carries the child to term. In addition to surrogate
parenting, there are several other relatively recent advances in reproductive technology.
For example, with artificial insemination by donor (AID) a woman may become
impregnated without intercourse. In fact, it is through artificial insemination that a
surrogate is impregnated. In the more typical non-surrogate AID situation, though, a
woman who has been impregnated would keep the child upon birth. Another of the
modern reproductive technologies is in vitro fertilization (IVF). This form of
reproduction involves fertilizing a womans egg in a laboratory and subsequently re-
implanting the egg in her body. Surrogate arrangements differ from AID and IVF in that
they require the rental of the womans body over a prolonged period of time.

[2] Section 10: What agreement are contracts: - All agreements are contracts if they are
made by the free consent of parties competent to contract, for a lawful consideration and
with a lawful object, and are not hereby expressly declared to be void.

Nothing herein contained shall affect any law in force in India, and not hereby expressly
repealed, by which any contract is required to be made in writing or in the presence of
witnesses, or any law relating to the registration of documents.

[3] Section 11 of the Act provides that a major person who is of sound mind and not
disqualified by any law to enter into contract is competent to contract. Section 12 further
specifies that a sound mind for the purposes of entering into a contract is the soundness of
mind at the time of entering into such contract.

[4] As defined in section 23

[5] Id.

[6] Sections 24-30 provide for void agreements.

[7] Section 23:- What consideration and objects are lawful, and what are not The
consideration or object of an agreement is lawful, unless

It is forbidden by law; or is of such a nature that, if permitted, it would defeat the

provisions of any law, or is fraudulent; or involves or implies injury to the person or
property of another; or the court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or objects of an agreement is said to be unlawful.

Every agreement of which the object or consideration is unlawful is void.

[8] Field, Martha A., Selling Ones Birthrights, Harvard Law Review [Vol. 102: 1074]

[9] Id.

[10] 1986 INDLAW SC 645

[11] Id.

[12] Id.
[13] Bhadbhade; Nilima; Pollock & Mulla, Indian Contract and Specific Relief Acts at
693 (13th ed. 2006)

[14] Id.

[15] 537 A.2d 1227, 109 N.J. 396 (N.J. 02/03/1988). In this matter the Court is asked to
determine the validity of a contract that purports to provide a new way of bringing
children into a family. For a fee of $10,000, a woman agrees to be artificially inseminated
with the semen of another womans husband; she is to conceive a child, carry it to term,
and after its birth surrender it to the natural father and his wife. The intent of the contract
is that the childs natural mother will thereafter be forever separated from her child. The
wife is to adopt the child, and she and the natural father are to be regarded as its parents
for all purposes. The contract providing for this is called a surrogacy contract, the natural
mother inappropriately called the surrogate mother.

[16] In re Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 02/03/1988)

[17] The guidelines of the Indian Council of Medical Research do recognise the rights of
a surrogate to choose to procreate a child for any other person. However, such right is not
absolute and need to be protected by the Court of Law.

[18] A surrogate carrier, unlike a surrogate mother, contributes no genetic material of her
own. She is implanted with another womans ovum that has already been fertilized in
vitro. See Annias & Elias, In Vitro Fertilization and Embryo transfer: Medico legal
Aspects of a new Technique to create a Family, 17 FAM. L.Q. 199, 216-17 (1983).

[19] Surrogacy contracts, Harvard law review, Vol. 99:1936

[20] Courts usually explain that her promise should not be enforced because she was
probably vulnerable to coercion or under financial or emotional stress. See, e.g., Sullivan
vs Mooney, 407 So. 2d 559 (Ala. 1981).

[21] Supra.

[22] The legality of a surrogacy agreement was under consideration. The court declared it
to be unenforceable. The court had two principal reasons for finding the agreement
unenforceable. First, the agreement used money to coerce a less socio-economically
advantaged surrogate to give up a child, much like baby selling. The second concern of
the court is that the parties not make a binding best-interests-of-the-child-determination
by private agreement. The court noted that even agreements entered into by married
couples as to the custody of the children in the event of a divorce was still subject to a
judicial determination of custody based on the best interest of the child.

[23] See, e.g., Radin, Market inalienability, 100 HARV.L.REV.1849, 1928- 36 (1987)
(describing surrogacy as oppressive commodification either of babies or of womens
reproductive services and arguing for its removal from the market).
[24] At one point Field argues that [I]f society has created circumstances that coerce poor
women to give away or sell their children, then rather than honor their choice as one of
free will, it would be better to preserve for the poor the dignity- the basic right- of raising
their own children

[25] Surrogacy contracts, Harvard law review, Vol. 99:1936

[26]CORBIN, contracts & restatement (second) of contracts. Refusal to abrogate the

surrogate mothers parental rights does not necessarily imply that the natural father loses
any of his rights as a parent.

[27] Id

[28] Syrkowski vs Appleyard, No. 71057 (Mich. Jan. 17, 1985).

[29] See, e.g., MICH, COMP. LAWS 710. 54 (I) (1979) ([Except with court approval,] a
person shall not offer, give, or receive any money or other consideration or thing of value
in connection with [an adoption or related practices].)

[30] Reproductive Technology and the procreative rights of the Unmarried, Harvard Law
Review, Vol. 98:65 at p. 673