Commercial and Transnational Surrogacy Contracts: Globalised

World*
With infertility rates on the rise and a growing acceptance of same-gender couples as an impact of
globalizing world, thousands of people annually are opting for surrogacy as a way of having genetic
children through a process of in-vitro fertilization(IVF) and embryo transfer. India is on the verge of
becoming the surrogacy capital of the world owing to the simplicity and cost effectiveness of the process
as compared to other developed nations.
Commercial surrogacy in India has grown into an industry since a supreme court judgment made it legal
in 2002. Couples from around the world now travel to India to seek the services of surrogate mothers, at a
cost that is only a fraction of what they would pay for comparable services in their country.
Even though commercial surrogacy has been legal in India since 2002, there are no laws as such
governing surrogacy contracts in India. The Indian Council of Medical Research had after a long wait
come out with a draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008. The proposed
ART regulation bill tables in 2013 is still pending with Parliament. This Bill acknowledge surrogacy
agreements and their legal enforceability but neither creates nor designates or authorizes any court or
quasi-judicial forum for adjudication of disputes arising out surrogacy, ART and Surrogacy agreements.
This has in turn exposed the surrogate mothers and children born out of such agreements to exploitations
and sufferings and therefore there is a dire need of regulatory mechanism or proper laws governing
surrogacy. The legal issues related with surrogacy are very complex and need to be addressed in a
comprehensive and sensitive manner keeping in consideration the social economic condition of our
society.
This paper in light of this scenario attempts to study by way of doctrinal method the background of
surrogacy in India and the current status both socially and legally. The paper also tries to unfold the need
of a comprehensive legal structure in this arena and the positives that can be implemented by analyzing
and referring the existing laws in other nations regarding surrogacy.
Key words : surrogacy, contract, ICMR rules, Legal structure

** Bhawna Pal, LLM Constitutional and Administrative Law (2015-2016), Gujarat

National Law University.