Chapter I

Introduction

Society is formed by the individuals as one of the salient features of the society is
racial development, i.e., reproduction in terms of genetics. For instance, a botanical
species have a special ability to reproduce by producing good quality fruits, vegetables
and to provide seeds for future. The very existence of life depends on the power of
procreation which dates back to the Indus Valley civilization, Mother Goddess, who is a
symbol of fertility, has been worshipped. Land has been worshiped for its fertility power
in full moon days. Even planting and harvest festivals have been considered to be
important fertility rituals at different points of time. Zoologically, same is the case with
insects, birds, animals or mammals in general or human beings in particular.
The continuity of the family unit has been of major significance in Indian society.
Besides social factors like someone to take care of me in my old age, directs our
attention to a profound religious demand for a child, especially a male one who is
considered to be the kul dipak.
The inability to reproduce is considered as a social stigma and couples have done enough
to overcome fertility problems. Surrogacy is one such way which has blessed many
couples with the joy of family. With the developments in reproductive sciences and
technologies, the barriers to parenthood are no longer as challenging as they were in the
earlier times. Inspite of this, it has been considered inconsistent with human dignity as
another woman uses her uterus for financial profit and treats her womb as an incubator
for someone elses child.
Surrogacy is basically where a female rents her womb for carrying a child of
another and bringing him into this world. India, in particular has seen a rise in surrogacy
as an ideal technique for childless couples to enjoy the pleasures of parenthood. Couples
who choose surrogacy often do so because they are unable to conceive naturally with
their partners due to a missing or abnormal uterus. Most of them also have experienced
multiple miscarriages or have had multiple in-vitro fertilization attempts that have failed.
Most of the times, couples go for gestational surrogacy as it is beneficial to the intended
parents as herein the embryo is created from the mothers egg and the fathers sperm and
so it is biologically theirs.
1.1 Historical Overview:
Men and Women have been considered important source of procreation as it is
upon them to carry on the family line. This power of procreation has been celebrated by
many rituals by worshipping fertility Gods such as Lord Shiva and Lord Kartikeya. In
Greek Mythology, Eros was the primitive God of lust, love and intercourse and was
worshipped as a fertility deity. Fertility rituals and fertility symbols such as Shiva
Lingam, which is the most powerful fertility symbol in Hinduism consists of the critical
union of Shiv-Parvati, dominates the Hindu religious practices.1
Sometime men are found with reproductive problems and sometime women too.
In the ancient era, when a man could not produce a child with his wife, he was given the
benefit of doubt and was allowed to marry again and again. If, despite this, he failed to
father a child, it was concluded that he was sterile. In such circumstances, the
Dharmashastras suggested that another man be invited to cohabit with his wife. This
practice was known as niyoga or levirate.
During the epic age of Mahabharata, Pandu and Dhritarashtra faced such
problems and niyoga was the solution which was adopted, which may be equated as
In Vitro2-Fertilization today. It is also believed that Gandhari, the wife of King
Dhritarashtra conceived, but her pregnancy remained prolonged for nearly two years. At
the end of this period as described by Bhagwan Vyasa, she delivered a mass of material
that contained 101 normal cells which when put in a nutrient medium grew up full term
as 100 male children the Kauravas and one female child, called Duhsheela.
According to the Bhagwad Gita, even Lord Krishna is understood to have been
born without a sexual union. Kans, the wicked king of Mathura, had imprisoned his sister
Devaki and her husband Vasudeva because oracles had informed him that her child
would be his killer. Every time she delivered a child, he smashed his head on the floor.
He killed six children. When the seventh child was conceived, the gods intervened. They
summoned the goddess Yogamaya and sent her to transfer the fetus from the womb of
Devaki to the womb of Rohini (Vasudevas other wife who lived with her sister Yashoda
across the river Yamuna, in the village of cowherds at Gokul), when Vishnu heard
Vasudevas prayers beseeching Kansa not to kill all his sons being born. Thus, the child

1
http://vinayaghimire.hubpages.com/hub/fertility-symbols-and-fertility-rituals-in-hinduism; last visited on
14/01/2013; time 11:00 am (IST); place Meerut, Uttar Pradesh, India.
2
In-vitro means outside the living body and in an artificial environment (as opposed to in-vovo which
means taking place in a living organism.)
was conceived by divine mental transmission in one womb was incubated in and
delivered through another womb. This all may be considered as traditional prevalence of
surrogacy in India.
Same is the case with Sarah, the wife of Abraham, who was found with problem
in conceiving, her maid servant Hagar was laid with her husband Abraham to bear a
child for the infertile Sarah, which may be called as surrogacy in todays scenario and
the method used may be termed as traditional method of surrogacy.
In fact, these types of arrangements have been in existence since a very long time.
It is as old as human history. Historically the first child born through such arrangement
was Ishmael, as was mentioned in the Old Testament of the Holy Bible. The second and
the third known births occurred in Sumer-Mesopotamia in the middle of the 18th century
B.C. in the family of Jacob, Abrahams grandson. This problem was also experienced in
1790 although most of the world probably did not know that this process was in
existence. The first case of surrogacy/artificial insemination occurred in United States
using a donors sperm. One can also find the mention of births by such arrangement in
the ancient Babylonian legal code of Hammurabi in the 18th century which recognized the
practice of surrogacy and actually laid down detailed guidelines specifying rights of both
the wife and the surrogate mother and also as to when it would be permitted to be
practiced. The child born from such a relationship assumed the throne only if there were
no other legitimate nominees. Such relationship may be termed as traditional surrogacy
which was common in ancient Greece, Egypt and Rome.
An example of infertility from Quran which can be quoted is that of Zakariya and
his wife Ishba. The Quran provides that everyone belongs to Allah. He creates what he
desires. He bestows male or female offspring on females or sometimes renders them
barren. The Prophet has encouraged Muslim men to marry those who are fertile. If for
some reason the first wife is infertile then the option to avail the choice of polygamy is
one that is encouraged in Islam.
"To Allah belongs the dominion of the heavens and earth. He creates what He wills and
(plans). He bestows (children) male or female according to His will (and plan). Or He
bestows both males and females, and He leaves barren whom He wills: for He is full of
Knowledge and power.3

3
See Surah al-Shura (42): 49 50.
 In Islam, surrogacy is neither permitted under the Islamic family laws, nor is it
allowed under Islamic laws of contract. The womb is known as Rahim, a word that is
also used to describe one of the attributes of Allah.
However, in European cultures, while surrogacy has undoubtedly been practiced
in the past, it has never been formally recognized by the society or the law. In other
societies such as the Kgatla people of Bechuanaland in South Africa and other traditional
Hawaiian groups undertake similar practices and here surrogate motherhood is seen as an
act of friendship and generosity. In Australia, the first widely publicized case of
surrogacy occurred in 1988. Alice Kirkman was born on 23rd May, 1988 in Melbourne as
Australias first IVF surrogate baby. The woman, who gave birth to Alice, was her
genetic aunt, named Linda Kirkman. Lindas sister, Maggie Kirkman was Alices genetic
and social mother as Alice grew from an embryo created from Maggies egg fertilized by
a donor sperm.4
The World Health Organization has described infertility as the inability to
conceive a child. A couple may be considered infertile if after two years of regular sexual
intercourse, without contraception, the woman has not become pregnant.5
In most developing countries, women are blamed for infertility, resulting in the
social stigma of childlessness, even if they are not the cause for the same. This may be
because in many cultures, womanhood is defined through motherhood and women
usually carry the blame for the couples inability to conceive. Childless women are
frequently stigmatized, resulting in isolation, neglect, domestic violence and polygamy.
On the other hand, not only female infertility, but also the majority of male infertility in
developing countries is caused by infections of the male genito-urinary tract. It is
believed that more than 80 million couples suffer from infertility worldwide, the majority
being the residents of developing countries as compared to the Western societies.6
This may be because developing countries encounter lack of facilities at all levels
of health care. Developing countries have a large reservoir of infertility problems, of
which bilateral tubal occlusion is most important one, which is caused due to previous
pelvic infection, a condition that is potentially treatable through assisted reproductive

4
Emmerson, Glenda, Surrogacy: Born For Another, Research Bulletin No. 8/96, Queensland
Parliamentary Library, Brisbane, September 1996.
5
http://www.who.int/topics/infertility/en/; last visited on 20/01/2013; time 09:00 am (IST); place Meerut,
Uttar Pradesh, India.
6
ICMR Bulletin, June-July, 2000, Vol. 30, No. 6-7, ISSN 0377-4910.
technologies. It is mainly caused by sexually transmitted diseases, postnatal or post-
abortal infections and pelvic tuberculosis etc.
Social transformations as well as medical science advances regarding infertility
treatment has resulted in increasing demand of infertility services. Today, advances in
Assisted Reproductive Technology7 can offer hope to many couples with infertility
where, a few years ago, none existed. Therefore, until the introduction of modern assisted
reproductive techniques, traditional or partial surrogacy was the only means of helping
women who had no uterus or had major abnormalities of the uterus to have children. In
more recent years, artificial insemination has been resorted to and various procedures
have been developed including intra-vaginal, intra-cervical and intra-uterine
insemination, to inseminate surrogate hosts with the semen of the male partner of the
couple wishing to have the child.
The first successful vaginal artificial insemination with the husbands semen was
achieved by John Hunter at the end of the 18th century. Variations on this basic technique
had been developed which included stimulated intra-uterine insemination, where
insemination with the husbands sperm is carried out following gonadotrophin therapy
and vaginal intra-tubal insemination, where spermatozoa are deposited in the fallopian
tube under ultrasound guidance. It was also shown that direct intra-peritoneal
insemination can lead to pregnancies. The advent of embryo micromanipulation
techniques had made possible inter alia, the injection of the sperm into the periovular
space, resulting in fertilization and live births.8
Assisted reproductive technology has now enabled both partners in a relationship
to use their own gametes to create their own unique embryos and thereupon these
embryos are to be transferred into the uterus of a surrogate host. This means that although
the female partner of the couple wanting the child may have no uterus, she is able to have
her own genetic child/children.
As early as in 1950s, Robert Edwards, working at the National Institute for
Medical Research in London made a number of fundamental discoveries about how
human eggs mature, how different hormones regulated their maturation and at which
point of time the eggs were susceptible to fertilization.9 After several years of work, he

7
Hereinafter referred to as ART.
8
Thappar, Vani and Malhotra, Narendra et. al, Intrauterine Insemination, In: Allahbadia, Gautam N. and
Merchant, Rubina, Contemporary Perspectives on Assisted Reproductive Technology, 1st ed. 2006, p.381.
9
http://www.britannica.com/EBchecked/topic/179875/Robert-Edwards; last visited on 21/01/2013, time:
02:30 pm (IST), place: Meerut, (UP), India.
succeeded, in 1965, in finding the right conditions that activated the dormant and
immature egg cells in vitro and promoted their maturation. He found that human oocytes
required 24 hours of incubation before the maturation process began and this prolonged
cultivation resulted in egg cells suitable for IVF. In 1969, he identified the buffer
conditions to support in vitro activation of hamster oocytes. He used the same buffer
conditions and showed that human spermatozoa thus activated could also promote the
fertilization of in vitro-matured oocytes. Thus, due to his efforts the first IVF baby Louis
Brown was born in 1978, the worlds first baby to be born after the use of in-vitro
fertilization technique.10 This discovery marked an important milestone in the
development of treatment for infertility in humans. The discovery of this technique by
Robert Edwards has fetched him Nobel Prize in 2010 which is major medical
advancement and a boon to infertile couples all over the world.11
The worlds second and the Indias first IVF baby, Kanupriya alias Durga was
born in Kolkata on 3rd October, 1978 about three months after the worlds first IVF child
was born in Great Britain on 25th June, 1978.12 America also celebrated the birth of its
first IVF-conceived baby Miss Elizabeth Carr born in Norfolk, Virginia on December 28,
1981.13 Indias first scientifically documented IVF baby named Harsha, was born on 6th
August, 1986 in Mumbai through the collaborated efforts of the ICMRs Institute of
Research in Reproduction and the King Edwards Memorial Hospital.14
Since then surrogacy has become one of the mainstream options for childless
couples across the world, who have a strong desire to have a child of their own but do not
desire to adopt one. Such couples resort to surrogacy because of medical conditions that
prevent natural childbirth. Such conditions include infertility, danger of the pregnancy
harming the woman or the child. Traditionally, another woman hired for giving birth to
an infertile couples child, was usually a close relative who was looked after and taken
care of during the period of pregnancy, as there was no financial obligation involved in

10
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3799275/; last visited on 22/01/2013, time: 06:30 pm
(IST), place: Meerut, (UP), India.
11
http://www.nobelprize.org/nobel_prizes/medicine/laureates/2010/popular-medicineprize2010.pdf; last
visited on 22/01/2013, time: 07:00 pm (IST), place: Meerut, (UP), India.
12
http://surrogacylawsindia.com/index_inner.php; last visited on 22/01/2013, time: 07:30 pm (IST), place:
Meerut, (UP), India.
13
Reich, J. Brad and Swink, Dawn, Outsourcing Human Reproduction: Embryos & Surrogacy Services In
The Cyberprocreation Era, Journal of Health Care Law & Policy, Volume 14, Issue 2, Article 2, 2011,
p.249.
14
http://www.futuremedicineonline.com/detail_news.php?id=447; last visited on 22/01/2013, time: 10:40
pm (IST), place: Meerut, (UP), India.
the process. However, with the changing times and relatives not readily available to
suffer the discomfort and pain involved, the services of surrogate mothers have assumed
pecuniary overtones. The problem of infertility is a serious one in our society and the
social stigma involved includes abandoning of wives. Thus, Surrogacy is being resorted
to widely as a solution to infertility where one or both of the partners suffer from
infertility problems.
1.2 Understanding the Meaning of Surrogacy:
According to Blacks Law Dictionary, the word surrogate has its origin in the
Latin word surrogatus, meaning a substitution or replacement, i.e., a person appointed
to act in the place of another.15 The term surrogate mother or surrogate is usually
applied to the woman who carries and delivers a child on behalf of another couple. It is
considered as a blessing and miracle of science.
Surrogacy is an arrangement in which a woman agrees to a pregnancy, achieved
through assisted reproductive technology, in which neither of the gametes belong to her
or her husband, with the intention of carrying it to term and handing over the child to the
person(s) for whom she is acting as surrogate. The surrogate is a woman who agrees to
have an embryo generated from the sperm of a man who is not her husband, and the
oocyte for another woman implanted in her womb to carry the pregnancy to full term and
deliver the child to its biological parent(s). In medical parlance, the term surrogacy
means using of a substitute mother in the place of the natural mother. The surrogate
mother bears a child on behalf of another woman, either from her own egg, wherein the
procedure is called straight or partial surrogacy or from the implantation in her womb of
a fertilized embryo from another woman, wherein the procedure is called
gestational/full/host/IVF surrogacy.16
In partial or natural surrogacy, also known as traditional surrogacy, the
commissioning mother has no role to play. The surrogate mother provides her own egg,
which is fertilized by artificial insemination, carries the foetus and gives birth, to a child
for another person. She gestates the child which makes her the biological or genetic
mother of the child. The child may be conceived via artificial insemination using fresh or
frozen sperm or impregnated via IUI (intra-uterine insemination), or ICI (intra-cervical
insemination) performed at a health clinic. The child that results is genetically related to

15
Garner, Bryan A., Blacks Law Dictionary, 9th ed. 2009.
16
Rao, Mamta, Surrogacy: The Ethico-Legal Challenge, January 2012, Vol. XIII, Issue-1, pp.12-14.
the surrogate and to the male partner but not to the commissioning female partner. The
harvested child shares the genetic make-up of the surrogate mother and the
commissioning father. Women who have dysfunctional or non-functional ovaries due to
premature menopause may resort to the option of receiving the egg by donation. A
woman, who is at risk of passing on a genetic disease to her offspring, may opt for
traditional surrogacy. Women who are suffering from medical problems such as diabetes,
heart and kidney diseases and whose pregnancy may be life threatening, may select
traditional surrogacy, if their long term prospects for health are otherwise good.
However, traditional surrogacy is given a commercial angle when the surrogate mother is
implanted with a fertilized egg, which might be fully genetically related to the intending
parents or only to one of them and carries the baby to full term, all in exchange for
money.
On the other hand, in gestational or total or IVF surrogacy, the child has the
genetic combination of the commissioning parents. The genetic mother provides the
egg, which is fertilized by in-vitro fertilization and another woman, i.e., surrogate mother
carries the foetus in her womb and gives birth to the child. Thus, in this method an
embryo is created by the process of IVF/test tube in a laboratory, which is done by
combining the genes of both the commissioning parents, which is then implanted into the
womb of the surrogate mother. This is where a woman, i.e., the surrogate mother, carries
a pregnancy created by the egg and sperm of genetic couple. After the birth of the child,
the gestational carrier or the surrogate mother hands over the child to the biological
parents or adopted parents to be raised by them and assigns her parental rights to them.
Here, the carrier is not genetically related to the child. With gestational surrogate
motherhood, the commissioning couple is the genetic parents of the child. Gestational
surrogacy creates a new situation in which a child has not one, but two biological mothers
- one genetic and the other gestational.
The gestational surrogacy involves the following categories of women: -
a) Women with congenital absence of the uterus,
b) Women who have had a hysterectomy for hemorrhage, but they still have
functional ovaries,
c) Women who have suffered repeated miscarriages and for whom the chance of
ever carrying a baby to term is too remote, and
 d) Women who repeatedly fail to implant normal healthy embryos in treatment by
IVF.
There is another classification of surrogacy arrangements which can either be
Commercial or Altruistic. In Commercial Surrogacy, the gestational
carrier/surrogate mother is paid apart from medical and other reasonable expenses, to
carry a child to maturity in her womb. This is usually resorted to by the higher income
infertile couples who can afford the cost involved in the surrogacy arrangement and can
complete their dreams of becoming parents. The surrogate is not only reimbursed but also
paid a sum above her surrogacy related expenses as compensation for surrogacy services
provided by her. Commercial surrogacy is indeed a modern practice as opposed to
traditional surrogacy. Infertility of either of the partners and the desire for a child has led
them to fetch for alternate ways of child bearing. The development of assisted
reproductive technology has made it possible for childless couples to have a child to be
born through a surrogate mother to whom the child is not genetically related. This
procedure is practiced on a large scale in several countries including India because of
high international demand and readily available poor surrogates, low cost of the
treatment, illiteracy, lack of power possessed by India women, lack of regulation of
Assisted Reproductive Technology clinics and better flexible laws. Clinics are also
becoming more competitive not just in pricing, but in the hiring and retention of Indian
females as surrogates. The expression wombs for rent was coined when it became
possible for fertilized eggs to be implanted and, thus, grow to a full term baby in any
womb, sometimes even with the help of cross-border surrogacy mothers. This may also
be termed as outsourced pregnancy or baby farms.
In Altruistic Surrogacy arrangement, unselfish concerns are shown for the
welfare of others by the surrogate mother and she receives no financial reward for her
pregnancy or for the relinquishment of the child, although usually all expenses related to
pregnancy and birth are paid by the intended commissioning parents. The carrier receives
no compensation besides medical and other reasonable expenses for carrying and
delivering the child. This is generally done by a friend or a close relative17 who is paid
only the necessary related expenses and there is no reward to the surrogate.

17
In September 2012, Casey gave birth to her grandson when her daughter struggled with infertility. Her
daughters egg and her son-in-laws sperm were used in in vitro fertilization procedure, making the couple
biological parents of the surrogate child born through his grandmother;
accessed from http://abcnews.go.com/blogs/health/2012/09/04/surrogate-mother-61-gives-birth-to-her-
grandson/; last visited on 25/01/2013; time 11:00 am (IST); place Meerut, Uttar Pradesh, India.
 Under the surrogate parenting, as already discussed, the surrogate mother can
either be a genetic mother because it is her own egg that is fertilized and she, therefore,
has the genetic link with the child or she can be a gestational mother because she carries
the child to the full term. Here the surrogate has no genetic relation with the child. This
type of surrogacy occurs when the intended mothers already fertilized egg is implanted
into the womb of the surrogate mother. In addition to this, there are several other recent
advances in reproductive technology, e.g., Artificial Insemination by Donor (AID)
whereby the woman becomes pregnant without intercourse through artificial
insemination.
Infertility clinics/centres in India such as that of Dr. Singh Test Tube Baby Centre
established in 2005 in the city of Meerut in Uttar Pradesh is truly a baby making factory.
It involves one of the women from their database of prospective surrogates and arranges
meetings with the infertile couples. Many a times, the couples seeking surrogacy are
foreign couples and they are assisted by such type of infertility clinics in their endeavour
to be parents. These clinics also arrange donors of gametes when required, determine the
money involved, arrange for legal help to work out the terms of the surrogate agreement
and the benefits to each of the parties, supervise the pregnancy of the surrogate mother,
monitor her during the gestation period, successfully deliver the child, obtaining of birth
certificates from the municipal corporation and the final formalities to ensure that the
baby is handed over to the intending parents. In turn, a surrogate receives the due sum of
money for carrying the fetus to term. She is made responsible for any hurt inflicted on the
fetus if she does not fulfill her responsibilities and commitments intentionally or
negligently. A surrogate should consider the physicians medical advice including
medication, food and any other conduct which is harmful for the fetus. She also commits
to relinquish the new-born baby to intended parents after the baby is born. Once the
surrogate is pregnant, the health of the child will depend on her behavior and particularly
whether she smokes, drinks or takes other drugs. The commissioning parents will wish
the surrogate to desist from these activities. The prospective surrogate must declare that
she will not use drugs intravenously, undergo blood transfusion excepting of blood
obtained through a certified blood bank, and avoid sexual intercourse during the
pregnancy. A potential surrogate must also be in overall good mental and physical health
and have no known significant medical or social factors, such as obesity, heavy drinking
or smoking.
 When parents are unable to conceive a child biologically, surrogacy has come as a
supreme savior and this has been made evident through the discussion in the light of
significant judicial decisions on surrogacy, particularly In Re Baby Melissa18 and Johnson
v. Calvert19 cases. In Re Baby Melissa case, the New Jersey Supreme Court, though
allowed custody to the commissioning parents in the best interest of the child, came to
the conclusion that surrogacy contract is against public policy. However, it must be noted
that the US, surrogacy laws are different in different states.
If the 1988 Baby Melissa case in the US forced many to put on legal thinking
caps, then that year also saw Australia battling with societal eruptions over the Kirkman
Sisters case20 in Victoria. Linda Kirkman agreed to gestate the genetic child of her older
sister Maggie. The baby girl, called Alice, was handed over to Maggie and her husband at
birth. This sparked much community and legal debate and soon Australian States
attempted to settle the legal complications in surrogacy. Presently, in Australia
commercial surrogacy is illegal, contracts in relation to surrogacy arrangement are
unenforceable and any payment for soliciting a surrogacy arrangement is illegal.
In Johnson v. Calvert,21 Mark, Crispina and Anna Johnson signed a contract
providing that an embryo created by the sperm of Mark and the egg of Crispina would be
implanted in the womb of Anna and the child born would be considered as Mark and
Crispinas child, to which Anna agreed that she would relinquish all parental rights to the
child in favour of Mark and Crispina. In return, Mark and Crispina would pay Anna
$10,000 in a series of installments, the last to be paid six weeks after the birth of the
child. Mark and Crispina were also to pay for a $ 2,00,000 life insurance policy on
Annas life. But unfortunately, relations deteriorated between the two sides. Mark learned
that Anna had not disclosed that she had suffered several still births and miscarriages.
Anna felt Mark and Crispina did not do enough to obtain the required insurance policy.
She also felt abandoned during an onset of premature labour in June. In July, 1990, Anna
sent Mark and Crispina a letter demanding the balance of the payments or else she would
refuse to give up the child. Mark and Crispina filed a law suit, seeking a declaration that
they were the legal parents of the unborn child. Anna also filed her own suit to be
declared the mother of the child.

18
537 A.2d 1227 (N.J. 1988).
19
851 P.2d 776 (Cal. 1993).
20
Maggie Kirkman and Alice Kirkman, Sister-to-Sister Gestational Surrogacy, 1993.
21
851 P.2d 776 (Cal. 1993).
 The child was born on September 19, 1990, and blood samples were obtained
from both Anna and the child for analysis. The blood test results excluded Anna as the
genetic mother. The parties agreed to a court order providing that the child would remain
with Mark and Crispina on a temporary basis with visits by Anna. The Trial Court ruled
that Mark and Crispina were childs genetic, biological and natural father and mother
and that Anna had no parental rights to the child, and that the surrogacy contract was
legal and enforceable against Anna. The Trial Court also terminated the order allowing
visits to child by Anna. The Court of Appeal and Supreme Court of California affirmed
the decision of the Trial Court.
Today, Indias rapidly expanding commercial surrogacy industry is dependent on
gestational carrying arrangements, in which the surrogate mother is not genetically
related to the child she carries. Rather, the sperm of the intended father fertilizes either
the ovum of a donor or the ovum of the intended mother and the resulting embryo is
implanted in the gestational carriers womb. This type of surrogacy is made possible
through In-Vitro Fertilization technology (IVF), where an embryo is created outside of
the womb in a test tube in a laboratory. Before the introduction of IVF procedures in
1987, however, surrogates were impregnated with the sperm of the intended father
through artificial insemination. In this arrangement, called traditional surrogacy,
surrogate mothers contributed their own ovum and did bear a genetic connection to the
child they bore. In this particular socio-cultural context, any third-party form of
reproduction requires individuals to re-conceptualize procreation, reproduction, kinship
and family.
Commercial surrogacy, which has been dubbed reproductive outsourcing and
rent-a-womb by popular consensus, provides a rich terrain for debate because it
provokes yet another disturbance of the imagined public/private sphere divide.
Commercial surrogacy, like commercial adoption, abortion, or sex work, places things
that are normally relegated to the private sphere (procreation, the maternal body, the
feminine body) into the public sphere (the capitalist market). When an element of
reproduction becomes a commercial service, issues of bodily exploitation and economic
opportunity are immediately called into question and when the service crosses national
borders, as gestational surrogacy has in the last decade, with transactions between women
and families of different cultures and vastly unequal social and economic statuses,
questions of consent and opportunity are even further complicated.
 The surrogacy is a knotty issue in as much as it may deteriorate the relations
between the surrogate and her husband. Hence, the consent of the husband also appears to
be necessary before a surrogate mother enters into surrogacy arrangement. A husband can
prevent his wife from undergoing a surrogacy arrangement. A surrogate is not necessarily
a girl or a widow. If she is married, her husband has some rights and responsibilities.

7. SURROGATE MOTHERHOOD
7.1 What is Surrogate Motherhood
Surrogate Motherhood is a relationship in which one woman bears and gives birth
to a child for a person or a couple who then adopts or takes legal custody of the child;
also called mothering by proxy.

The advancement of the science of assisted reproductive technology (ART) has

created ever-increasing options to the person or couple who wishes to beget a genetically
related child. Single, infertile, or childless men who, just a few years ago, never would
have imagined the possibility of fatherhood can now opt for parenthood. However, the
miracle of ART perhaps as significant a milestone in the development of modern science,
as mankind walking on the moon faces its greatest challenge at the regulatory level.22
Today, couples nevertheless are incapable of bearing children can select to beget their
own genetic children through the modern technique of gestational surrogacy. Women
with non-functioning ovaries or women who have undergone a hysterectomy, through the
science of ART, can have their own genetic children. Women wishing to delay having
children but anxious about losing their opportunity to reproduce, can have their eggs
harvested and frozen for their or anothers future use.23

Although offering to become a surrogate mother for an infertile couple might

appear to be an uncomplicated altruistic act, it is not an easy course of action. Equally the
intended parents may see surrogacy as the answer to their prayers; but they are also likely
to have concerns over the implication of their decision before proceeding.24

In surrogate motherhood, one woman acts as a surrogate, or replacement, mother

for another woman, sometimes called the intended mother, who either cannot produce
fertile eggs or cannot carry a pregnancy through to birth, or term. Surrogate mothering

22
John A. Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the New
Reproduction Southern California Law Review 67 (July, 1986).
23
Brittnay M. McMohan, The Science Behind Surrogacy: Why New York Should Contracts Laws
Duquesne Law Review 904 (Summer, 1995).
24
Pratibha Ganesh Chavan, Psychological and Legal Aspects of Surrogate Motherhood AIR 2008 Jour
103.
can be accomplished in a number of ways. Most often, the husband's sperm is implanted
in the surrogate by a procedure called artificial insemination. In this case, the surrogate
mother is both the genetic mother and the birth, or gestational mother, of the child. This
method of surrogacy is sometimes called traditional surrogacy.25

Less often, when the intended mother can produce fertile eggs but cannot carry a child to
birth, the intended mother's egg is removed, combined with the husband's or another
man's sperm in a process called in vitro fertilisation (first performed in the late 1970s),
and implanted in the surrogate mother. This method is called gestational surrogacy.26

8. TYPES OF SURROGACY

(i) Traditional or Partial Surrogacy: This involves artificially inseminating a

surrogate mother with the intended fathers sperm via intrauterine insemination
(IUI), in-vitro fertilisation( IVF) or home insemination. In this case the
surrogates own egg will be used. With this method, the child is genetically
related to its father and the surrogate mother.

(ii) Traditional Surrogacy and Donor Sperm: A surrogate mother is artificially

inseminated with donor sperm via IUI, IVF or home insemination. The child born
is genetically related to the sperm donor and the surrogate mother.

(iii) Gestational or Total Surrogacy: When the intended mother is not able to
carry a baby to term due to hysterectomy, diabetes, cancer, etc., her egg and the
intended father's sperm are used to create an embryo (via IVF) that is transferred
into and carried by the surrogate mother. The resulting child is genetically related
to its parents while the surrogate mother has no genetic relation.

25
Available at: http://www.legal-dictionary.thefreedictionary.com/surrogate+motherhood (visited on
March 6, 2009).
26
ibid
(iv) Gestational Surrogacy and Egg Donation: If there is no intended mother
or the intended mother is unable to produce eggs, the surrogate mother carries the
embryo developed from a donor egg that has been fertilised by sperm from the
intended father. With this method, the child born is genetically related to the
intended father and the surrogate mother has no genetic relation.

(v) Gestational Surrogacy and Donor Sperm: If there is no intended father or

the intended father is unable to produce sperm, the surrogate mother carries an
embryo developed from the intended mother's egg (who is unable to carry a
pregnancy herself) and donor sperm. With this method, the child born is
genetically related to the intended mother and the surrogate mother has no genetic
relation.

(vi) Gestational Surrogacy and Donor Embryo: In order for a pregnancy to

take place, a sperm, egg, and a uterus are necessary. When the intended parents
are unable to produce sperm, egg, or embryo, the surrogate mother can carry a
donated embryo (often from other couples who have completed IVF that have
leftover embryos). The child born is genetically related neither to the intended
parents nor the surrogate mother. Egg and sperm are extracted from the donors
and in vitro fertilised (creation of the embryo in a petri dish) and implanted into
uterus of the surrogate. This is an expensive procedure. Again, the unused
embryos may be frozen for further use if the first transfer does not result in
pregnancy.

1.4 Understanding of Surrogacy with Indian Reference:

Surrogacy is flourishing in India because commercial surrogacy has been
legalized by the Supreme Court since 2008 through the ratio of the decision of Baby
Manji Yamada v. Union of India,27 wherein the Supreme Court has held that commercial
surrogacy is permitted in India with a direction to the legislature to pass an appropriate
law governing surrogacy arrangements in India. The ratio of this case has increased the
international confidence for resorting to surrogacy in India and making India a very
lucrative destination for surrogacy. It is consequently causing a serious concern for the
health of the poor illiterate Indian women.

27
AIR 2009 SC 84.
 Surrogacy is a very knotty issue in India due to non-enactment of laws on the
subject. Anand town in State of Gujarat is a hub of surrogate mothers. Not only this,
Indore city in Madhya Pradesh, Pune, Mumbai, Delhi, Kolkata and Thiruvananthapuram
are also emerging as surrogate centres because many childless foreigners from all over
the world are flocking here due to low cost, less restrictive laws, lack of regulation of
ART clinics and easy availability of poor Indian surrogate mothers. Generally, surrogacy
arrangements are drawn up in a random fashion and can be exploitative especially since
surrogates are mostly from weaker socio-economic sections of the society. It is essential
that the practice of surrogacy should be legally regulated to prevent victimization of both
the surrogate and intended commissioning parents.
The proposed research work tends to highlight that India is in an urgent need of
comprehensive legislations on the subject which can regulate and can have a check on the
use and misuse of surrogacy arrangements. It is apparent that surrogacy is increasing as
an industry in India and many clinics are providing these services to foreign couples and
also to Bollywood heroes and heroines who do not want to compromise their career
which is likely to be jeopardized due to maturity and de-shaping of the body of the
female and they find it easier to give their eggs and sperms and hire a womb on rent.
These clinics work as commission agents between the purchaser and donor/seller of the
sperms or eggs.
It is high time for the Indian Parliament to study in details the national and
international perspectives on surrogacy and to understand the root of the problem and
provide a comprehensive legislation including the rules and regulations for combating
and controlling the use and misuse of surrogacy practices in India. The focus needs to be
given on legalizing altruistic surrogacy and at the same time prohibiting commercial one.
It is submitted that it is advisable to protect the society from onslaught of capitalism over
Asian poverty and stop the exploitation of poor women being used as machines.
The present research has also analyzed the issue of surrogacy in and around India.
For better analysis, examples from United States, United Kingdom and Australia etc.
have been taken care of with reference to social and economic conditions in India.
The research has also included thorough analysis of the guidelines provided by
the Indian Council of Medical Research (ICMR), the draft Assisted Reproductive
Technology (Regulation) Bill and Rules 2008, redrafted in 2010, by the Government of
India (which is yet to be passed by the Indian Parliament), the recommendations of the
Law Commission of India in its 228th Report on Need for Legislation to Regulate
Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to
a Surrogacy.28
In the present research, the researcher has proposed a draft of Surrogacy
Arrangement (Regulation and Control) Bill, 2015 after critically analyzing the
weaknesses and shortcomings of Assisted Reproductive Technology (Regulation) Bill,
2008 and 2010 so as to evolve a comprehensive legislation on the subject.

28
See 228th Report of Law Commission of India, Need for Legislation to Regulate Assisted Reproductive
Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy, August 2009.