1

SURROGACY AND CONFLICTING INTERESTS OF PARTIES

OF SURROGACY ARRANGEMENTS IN INDIA: AN INSIGHT

Introduction

Only the wearer knows where the shoe pinches, rightly so only the infertile
couple knows and feels the pain, stigma and emptiness of being childless after
marriage. Marriage is the sine quo non1for having children. It is very difficult to
understand the pain of the couples who are not blessed with their own children after
marriage. Bearing of child is considered to be a very important part of the institution
of marriage. Moreover, in a country like India with traditional taboos woman is
respected as a wife only if she is mother of a child. But unfortunately the infertility
rate of couples is increasing in our country 2 and various reasons3 may be held
responsible for this phenomenon. But, thanks to modern medical science and the
recently discovered Alternative Reproductive Techniques (in short ART’s); there is
now a solution to deal with the problem of infertility. It has brought a ray of hope to
the infertile couples. The ART permits childless couples to beget issue through
artificial insemination and other fertility methods. Now couples have the option to
look for advanced infertility treatment, egg, sperm and embryo donation. Among all
forms of alternative reproductive techniques, surrogacy has emerged out as a supreme
saviour to infertile couples. However, the business of commercial surrogacy is soaring
high in India without any restraint resulting in exploitation of vulnerable parties
involved in this business. India is becoming a safe and cheap location for foreigners
wanting to use ART and local clinics are promoting surrogacy arrangements because
they are seen as lucrative ventures4. The surrogacy arrangements result into
confliction of various interests and have unfathomable impact on the primary unit of
society viz. family. It is unfortunate that till date there is hardly any public debate on

1
An indispensable condition or an indispensable requisite. See, P.Ramanatha Aiyar on,
“Concise Law Dictionary,” 1073 (3rd ed. 2005)
2
In India one in six couples has problems with infertility. See, Irvi H. Thakkar, “Is
Surrogacy Motherhood Moral,” March, Criminal Law Journal 88(2011).
3
The reasons for increasing infertility rate in India are:-poor health conditions, poor
nutritious diet intake, absence of proper maternity services and high levels of infections etc. For
details see, Imrana Qadeer and Marry E. John, “The Business and Ethics of Surrogacy” 10th
January, Economic and Political Weekly 10(2009).
4
Ibid.
 2

the conflicting interests and rights of parties involved in commercial surrogacy

arrangements.

The present paper discusses various issues associated with the emerging
practice of commercial surrogacy in India. The first part of the paper discusses about
ART and surrogacy, meaning of surrogacy, its type and causative factors responsible
for the upsurge in the cases of commercial surrogacy. Part II of the paper discusses the
various interests and rights of the parties involved in commercial surrogacy
arrangements. This part exclusively provides an insight of different conflicting
interests of surrogate mother, child born out of surrogacy arrangements and the
commissioning or intended parents who are opting to go for the child through the
method of surrogacy. It has been noticed that in the absence of any law to regulate
commercial surrogacy, the different rights and interests of the parties of surrogacy
arrangements are conflicting with each other. Law as an instrument of social
engineering strikes the harmony and balance between various competing interests.
Therefore an attempt has also been made through this paper to analyze the provisions
of the proposed Bill on the problematic area i.e. “The Assisted Reproductive
Technologies (Regulation) Bill, 2010” .The purpose of studying this part is to find out
to what extent the conflicting interests of parties of surrogacy contracts have been
addressed and reconciled in the draft of the proposed Bill. The last part of the paper is
dedicated to the concluding observations.

Assisted Reproductive Technologies (ART’s) and Surrogacy

The ART (Regulation) Bill, 2010 defines the term Assisted Reproductive
Technology as “All techniques that attempt to obtain a pregnancy by handling or
manipulating the sperm or the oocyte outside the human body and transferring the
gamete or the embryo into the reproductive tract”5 In other words Assisted
Reproductive Technologies are a group of technologies which assist in conception and
pregnancy. It includes various methods such as intra-uterine insemination (IUI) to
other variants of Invitro Fertilization (IVF) more commonly known as “test tube
baby” technology. Thus modern reproductive technology provides several methods of
artificial conception such as artificial insemination and IVF. In case of artificial
insemination, husband’s genetic material (semen) is injected into the wife’s body. This
method is often adopted in case where male partner is suffering with the problem of
5
See, The Assisted Reproductive Technology(Regulation)Bill,2010, sec.2(c)
 3

infertility6. This whole process of injecting semen of the husband into the body of
wife is known as Artificial Insemination by husband (AIH). It is worthy to mention
here that in case of AIH, the entry of the husband’s semen into the body of wife is
artificial but the rest of the process of gestation is natural. Where the semen is
obtained from a male other than the woman’s husband, it is called as Artificial
Insemination by Donor (AID)7. On the other hand Invitro fertilization is a technique,
which involves fertilization in the laboratory, in the first instance. In this process
various stages are involved8 and remaining gestation is same as in the case of artificial
insemination. It is most often used in cases of diseases relating to woman’s fallopian
tubes9. Where infertility of couple is not amenable to other reproductive technologies
like artificial insemination and where IVF fails, then the couple or single woman felt
need of surrogacy assistance. As mentioned above, the reproductive techniques have
proved as panacea to deal with the problem of infertility among couples but at the
same time the combination of reproductive assisted techniques with surrogacy have
raised many issues pertaining to the interests and rights of parties of surrogacy
arrangements.

Meaning and types of Surrogacy

Till the drafting of the Assisted Reproductive Technologies (Regulation) Bill, 2008,
the term ‘surrogacy’ was not defined. However, the word ‘surrogate’ has its origin in
Latin term “Surrogatus” which means a substitute, that is, a person appointed to act in
the place of another10. According to the Black’s Law Dictionary, Surrogacy means the
process of carrying and delivering a child for another person. The Report of the
Committee of Inquiry into Human Fertilization and Embryology or the Warnock
Report (1984) defines surrogacy as the practice whereby one woman carries a child
for another with the intention that the child should be handed over after
birth.11Similarly, the dictionary meaning of the term ‘surrogate’ includes “A substitute
6
M. Srinivas, “Assisted Reproductive Technology: Legal Issues,” 4 Andhra Law Times 25
(2010).
7
Ibid.
8
There are three stages which are involved in this process viz. collection of female genetic
material (ova) from the wife, fertilization of the ova with the husband’s genetic material in the
laboratory and transfer of the resulting embryo into the wife’s uterus.
9
See, M. Srinivas, supra note 6.
10
See, K .Vimala Devi, “Surrogate Motherhood and the Law-Emerging Challenges” 5
Supreme Court Journal 26(2010) ;See also, Law Commission of India,228 th Report on “Need
for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and
Obligations of Parties to a Surrogacy 228.5(2009).
11
Quoted from Report of Law Commission of India, ibid
 4

especially a person deputizing for another in a specific role”. 12 Section 2(aa) of the
Draft Assisted Reproductive Technologies (Regulation) Bill, 2010 (in short ART Bill)
also defines “Surrogacy (gestational) as an agreement in which a woman agrees to a
pregnancy achieved through an assisted reproductive technology in which neither of
the gametes belong to her or her husband, with the intention to carry it till term and
hand over the child to the person or persons for whom she is acting as a surrogate”.
The ART Bill 2010 also defines the term ‘surrogate mother’ as a woman who
is a citizen of India and is resident in India, who agrees to have an embryo generated
from the sperm of a man who is not her husband and the oocyte of another woman,
implanted in her to carry the pregnancy to viability and deliver the child to the couple/
individual that had asked for surrogacy 13. The Oxford Dictionary defines the term
Surrogate mother as “a woman who bears a child on behalf of another woman, either
from her own egg or from the implantation in her womb of a fertilized egg from the
other woman”. Obviously the term ‘surrogate mother’ means a woman who has been
deputed by the infertile couple to beget the child for them.

An analysis of the above mentioned definitions makes it amply clear that

surrogacy is a practice wherein a woman i.e. surrogate mother, also known as
‘gestational carrier’ agrees to give birth to an issue for another woman or a couple i.e.
for intended or commissioning parents and hands over the child after birth to them. It
is a method of reproduction whereby a woman agrees to become pregnant and deliver
a child for infertile couple.

1. Types of Surrogacy on the Basis of Nature of Process

On the basis of the nature of process, surrogacy can essentially be classified

under the following two heads:

A. Traditional or Partial Surrogacy

In the traditional case, the surrogate mother will be artificially inseminated

with the sperm of the intended father or the sperm from a donor when the sperm count

12
See, Concise Oxford English Dictionary 1451(111th ed. 2004).
13
See, ART Bill 2010, supra note 5 sec.2 (bb).
 5

is low. Here the mother would be genetically related with the baby 14because in either
case the surrogate’s own egg will be used. Due to this reason the two parties’ i.e.
infertile couple and surrogate mother enter into a contract where surrogate mother is
artificially inseminated with the sperm of male partner of that couple.

B. Gestational Surrogacy or Total Surrogacy

In order for a pregnancy to take place, a sperm, egg, and a uterus are required.
In case of gestational surrogacy, the eggs are extracted from the intended mother or
egg donor and mixed with sperm from the intended father or sperm donor in vitro. In
case of total surrogacy an embryo created by the process of In-Vitro fertilitsation is
implanted into the surrogate’s uterus15. One thing is worthy to mention in context of
gestational surrogacy is that here the mother is not genetically related to the child. The
gestational surrogacy comes under the ambit of assisted reproductive technologies.
Gestational surrogacy can be described as “Womb leasing Process”. 16 The reasons to
call it so is that the surrogate mother merely allows her womb to be used for carrying
further the reproductive process.

2. Types of Surrogacy on the Basis of Financial Reward

On the basis of the financial Reward, surrogacy can essentially be

classified under the following head:

A. Commercial or Professional Surrogacy

It is a that form of surrogacy wherein the surrogate mother is paid not only for
the medical and other expenses to deliver the child, but in addition to that a hefty
amount is also paid to carry the child to maturity in the womb. Generally in this form
of surrogacy, the intended parents and surrogate mother are not known to each other
before entering into an agreement. Due to this reason, this form of surrogacy is purely
guided by monetary considerations. In commercial surrogacy arrangements, the
surrogate mother enters into an agreement with the commissioning parents or single
parent to bear the burden of pregnancy. In return of her agreeing to carry the term of
the pregnancy, she is paid by the commissioning parents for that. The usual fee is

14
Gautamaditya Sridhara, “Surrogacy Contracts in India: An Analysis,” All India High
Court Cases 17(2007).
15
A.R. Lakshmanan, “Surrogacy: The Future of Children,” 2 Madras Law Journal 105
(2009); see also Monica Chawla, “Surrogacy: A Need for a New Law”, Civil and Military Law
Journal 190(2009).
16
See, M. Srinivas, supra note 6 at 26.
 6

around $ 25,000 to $ 30,000 in India which is around 1/3 rd of that in developed

countries like the USA17. Thus money plays an important role in this type of
surrogacy. Its nature is purely commercial. In India, the greed for money is
responsible for the increase in the cases of commercial surrogacy. This form of
surrogacy is very complex in nature and has generated a heated debate all over the
world amongst academicians and legal luminaries.

3. Altruistic or Emotional Surrogacy

It is that form of surrogacy in which the surrogate mother does not receive
any financial reward for the pregnancy or for the pain to be undertaken by her or for
the handing over of the child to the commissioning parents. It is also known as non-
commercial surrogacy or emotional surrogacy. However in altruistic surrogacy, all
expenses such as reimbursement of medical and other expenses related to the
pregnancy and birth would be paid to surrogate mother by intended parents. In nut
shell it can be said that when the surrogate mother does not receive any monetary gain
in order to give birth of child for intended parent it is known as altruistic surrogacy.

Thus, Surrogacy is commercial or altruistic depending on whether the

surrogate receives financial reward for her pregnancy or for the relinquishment of the
child or not.

Analyzing the Causative Factors responsible for Increase in cases of Commercial

Surrogacy in India

No one can deny that since the last few years the number of surrogate mothers
in India has been on the rise. In fact, India is fast emerging as a dynamic centre for the
fertility market with its reproductive tourism industry reportedly estimated at Rs.
25,000 crores. India is leading the charts in the arena of international surrogacy.
Commercial surrogacy is escalating in India with the number of surrogate mothers
nearly doubling every year. In 2006, 290 surrogacy cases were reported compared to
158 in 2005. In 2004, there were 50 odd cases on surrogacy 18. There are various pull
and push factors which have come to light over the years which are primarily
responsible for the increase in cases of commercial surrogacy in India. These are:-

17
See, Report of Law Commission supra note 10 at 228.6.
18
A.R. Lakshmanan, “Surrogacy: Bane or Boon,” 2 Madras Law Journal 41-42 (2009).
 7

 Extreme poverty and social and economic backwardness in India are some of
the forces which are driving women into this ethically unacceptable business.
Due to poverty, family members have been bulldozing women to act as a
surrogate mother. The individual studies also indicate that women who enroll
for such procedures are mainly from a poor socio- economic background19.
Easy availability of poor surrogate mothers in India is prompting foreigners to
visit India to enter into surrogacy arrangements.

 Surrogacy arrangements are motivated by a desire for a genetically related

child and the disincentive arising out of the prolix adoption procedures
coupled with difficulty in finding suitable child for adoption20. For example, in
India the existing law on adoption imposes restriction on a Hindu to adopt a
child of the opposite sex21. In case of surrogacy arrangement single male or
female member can also enter in surrogacy arrangements for child. Moreover,
our Apex Court in Laxmikant Pandey vs. Union of India22 has laid down
different guidelines for foreigners who are willing to adopt a child in India.
The possibility cannot be overruled that foreign couples may find it
comfortable to go for a surrogate child rather than to follow the plethora of
guidelines laid down in the above mentioned case to adopt a child in India.

 The costs of medical treatment are low in India and it is proving to be an

attractive hub for foreigners to procure benefits of medical tourism especially
surrogacy23. Thus India is witnessing a hike in cases of commercial surrogacy
due to medical tourism boom fuelled by low medical costs.

 It has been noticed that the day to day changing life styles as well as the
higher cost of living are also forcing women to adopt surrogacy as a business
to earn money. There have been instances wherein the women have been
compelled by their in-laws to engage in this emerging business so that distant
19
Irvi H. Thakkar, supra note 2 at 93.
20
Raghav Sharma, “An International, Moral and Legal Perspective: The Call for
Legalization of Surrogacy of India,” July, All India High Court Cases 105(2008).
21
For example, Section 11 Clauses (iii) & (iv) of Hindu Adoption and Maintenance Act, 1956
states that if a Hindu wants to adopt a child of the opposite sex, he or she must be older to the
child by at least 21 years. The violation of this requirement renders the adoption void. Though
the purpose of incorporating this provision in the Act is to prevent people from abusing the
adopted child but these restrictions may discourage parents from adopting a child despite their
inclination to adopt a child genuinely.
22
(1984) 2 SCC 244.
23
Medical Tourism Booms in India, Economic Times, Feb 7, 2006.
 8

dreams of a high standard of living, luxuries and a secure future for their
children could be achieved24. These factors are also driving woman to make
money through surrogacy. Similarly the career conscious women are resorting
to commercial surrogacy as an alternative to become mother. They do not
prefer to become mother because it may create hurdles in their career
planning.

 Some of the countries have either banned commercial surrogacy 25or have
enacted stringent laws26 to deal and regulate the commercial surrogacy as a
money making profession. Opposite to this, in India the commercial surrogacy
is considered legal27. The rules and guidelines28 on the problems are less
restrictive. Due to these reason childless couples, especially foreigners find
India as the appropriate place to fulfill their desire to have children from
surrogate mothers.

Whatever may be the reasons for increase in cases of commercial

surrogacy, one thing is sure that the parties involved in surrogacy arrangements have
been forced to experience different problems in the absence of law on the subject.
India is very rapidly emerging as a favourite destination for infertile couples to enter
into surrogacy arrangements because of the above-mentioned reasons. Surrogacy
arrangements can be more exploitive, in our country where surrogates mothers are
mostly from poor families.

Part-II

Conflicting Interests and Rights of Parties of Surrogacy Arrangements

24
The Hindu, March 2, 2006 at p.5.
25
In Countries like Japan, England, Australia, commercial surrogacy is illegal and contracts
in relation to surrogacy are unenforceable and any payment for soliciting of a surrogacy
arrangement is also illegal.
26
For example, Canada has enacted the Assisted Human Reproduction Act, 2004 which
legalizes surrogacy arrangements not involving payment of money. Commercial surrogacy
advertising and acting as intermediary for earning profits in such agreements are banned.
Similarly, in United Kingdom the Human Fertilization and Embryology Act, 1990 makes
surrogacy arrangement unenforceable by or against any persons making it.
27
The Indian Council for Medical Research has given out guidelines relating the surrogacy
process in India. As per the guidelines issued by the Indian Council for Medical Research, the
Supreme Court of India in M Baby case held that Commercial Surrogacy to be legal in India.
28
The Indian Council of Medical Research (ICMR) issued National Guidelines for
accreditation, supervision and regulation of ART clinics in India in 2005, but the guidelines are
legally non-binding
 9

The protection of interests is a basic requisite to enjoy good and respectable

life in any civilized society. An interest may be defined as “a demand or expectation
which human begins collectively or individually seek to satisfy in society through a
continuous process of adjustments and change with the changing objects, goals and
values of each society. Dean Roscoe Pound enumerated various interests’ viz
individual interests, public interests and social Interests. These interests clash with
each other and for the betterment of common social good they should be reconciled.

In case of commercial surrogacy there are two parties which directly enter
into surrogacy arrangements i.e. the surrogate mother and the commissioning or
intended parents. However one should not forget that the unborn child in the womb of
a mother is regarded as a legal person in the eyes of law and is capable of enjoying
rights subject to the condition if he born alive29 Obviously a child in the womb of
surrogate mother is a legal person capable of enjoying rights. Therefore directly and
indirectly there are three legal entities whose interests and rights are competing and
conflicting with each other in commercial surrogacy arrangements. Under the
following heads, the interests and rights of different parties involved in surrogacy
arrangements have been discussed which would be indicative that there is an urgency
to reconcile the conflicting claims, desires and interests of parties of surrogacy
arrangements.

1. Interests and Rights of Surrogate Child

The protection and promotion of the interests and rights of children in India
has been given paramount consideration in Constitutional law30 as well in various
social welfare legislations31. In welfare State like ours, it becomes the duty of
respective governments to afford protection to the interests and rights of children. But
in case of surrogacy arrangements, the main question which arises is that how are the
interests and rights of the baby to be best protected? It is felt and experienced that the
interests of surrogate baby have not been shown any concern. They have been
deprived from many rights and entitlements. There is an inbuilt bias against the

29
S.N. Dhyani, “Jurisprudence and Indian Legal Theory,” 250 (4th ed. 2004).
30
See Articles 14, 15,23,24,47 and so many other articles of Indian Constitution which seek to
protect and promote interests and rights of children in India.
31
See, for eg., Indian Wards Act, 1890, Immoral Trafficking Prevention Act, 1956, The Hindu
Adoption and Maintenance Act, 1956, Hindu Minority and Guardianship Act, 1956 are some of
the laws which are worth mentioning in the arena of protecting and promoting the interest of
children.
 10

surrogate child as the surrogate mother is constrained to underplay her bond with the
growing baby from the beginning. Early separation of surrogate child from surrogate
mother cause immunological and psychological health problems to him. It is worthy
to mention here that every child has a right to care, health and nutrition 32. The
Constitution of India also incorporates the provision ensuring right to health and
nutrition of the children. In commercial surrogacy, the surrogate mother has to hand
over the child to the commissioning parents. This practice debars the newly born baby
from the right to breast feeding. It is noteworthy that breast milk is considered an
ideal food for infants as it provides numerous benefits, such as age-appropriate
nutrition as well as immunological protection to them 33. The alternatives to breast
milk are expensive and unsafe. But in surrogacy arrangements the interest and welfare
of the child is least considered. The separation of the child from the surrogate mother
is not in the best interests of the overall development of the child. It affects the health
and growth of the child in many ways. Deprivation of the child from the nutritious
milk of mother in his early months means deprivation of the child from his primary
right of breast feeding and health. The early separation of surrogate child from
surrogate mother can cause physical and mental imbalances in the child.

In commercial surrogacy, the surrogate mother knows that she has to deliver
the child after birth to commissioning parents. There is a possibility that the surrogate
mother may not take much precaution about the health of child which would put
adverse impact on foetus in the mother’s womb. It is not in the best interest of the
foetus. Its development and growth entirely depends on mother’s good dietary intake.
It is the right of an unborn child to grow and develop with health. If some injury is
caused to the unborn child that will also affect the health of the surrogate mother.
Does it not amount to violation of right of health of the unborn who is in the mother’s
womb? Moreover the surrogacy arrangements are entirely based on monetary
consideration. It can be termed as “baby selling” business. It leads to the exploitation
and commoditization of newly born baby. Is it not violation of Constitutional
protection to the child guaranteed in Article 23 of the Indian Constitution which

32
Article 47 of the Indian Constitution obligates the state to regard, as among its primary duties,
the raising of the level of nutrition and the standard of living of its people and the improvement of
public health. For details see, M.P.Jain, “Indian Constitutional Law,” 1390(5th ed. 2003).
33
See, Legislating an Epidemic: HIV/AIDS in India The Lawyers Collective (Universal Law
Publishing Co. Pvt. Lt Edition 2003) at 188.
 11

prohibits trafficking in human beings?34 The commercial surrogacy is a form of

trafficking whereby children are sold to couples, irrespective of whether they are well
taken care of later or not. It is irrespective of whether it is in the best interests of the
child or not. Thus commercial surrogacy not only leads towards the commoditization
of the child but also breaks the bond between the mother and the child. This results
into exploitation of children for no fault of their own.

The surrogate mother may give birth to a child suffering with serious
illnesses and disabilities at the time of birth. The commissioning parents may refuse to
take that child from the surrogate mother. What would happen about the rights and
interests of the child born with abnormalities or disabilities? The refusal by
commissioning parents to receive abnormal surrogate baby amounts to discrimination
against the surrogate mother and the baby. It amounts violation of Article 14 of Indian
Constitution which speaks about right to equality. Moreover, under such
circumstances the surrogate mother may be forced to look after that abandoned
disabled child to whom otherwise she may not willing to keep. The surrogate mother
may not take proper care of the surrogate child. It is not in the best interest of the
child and can create commotion in the society.

Our morals and ethics are deteriorating day by day. The surrogate child is
looked upon with suspicion and can be considered illegitimate. The stigma of being
called illegitimate is against the dignity of the surrogate mother as well as the child.
The tag of illegitimacy may affect the psyche and well being of the child and therefore
not in the best interests of the child. There are various instances wherein the persons
above the age of 50 are also looking for surrogacy arrangements to fulfill their desire
for their own child. Obviously to become and to have, the parent of the child is one of
the private interests of the infertile couples. But what would happen about the
interests of the child if after few years both or any earning spouse die. This mishap
may affect the right to education, care and health of the child because there would
probably be no one to take care of the child after the death of parents. The surrogate
child would be dragged into different nefarious or immoral business which is not
good in social interests. Thus, commercial surrogacy arrangements are violating

34
Article 23(1) of Indian Constitution states that “Traffic in human beings and beggar and other
similar forms of forced labour are prohibited and any contravention of this provision shall be an
offence punishable in accordance with law”.
 12

various interests and rights of the surrogate child and it raises several legal issues and
challenges

2. Interests and Rights of Surrogate Mother

The surrogate mother keeps the child in her womb for 9 months and after
delivering the child she has to hand over the child to the commissioning parents. The
individual studies35are indicative that the attachment that a mother has towards her
delivered child is by blood relation. It is extremely difficult to separate oneself from
this emotion. Surrogacy arrangement is responsible for separation between mother
and child. It breaks the relationship between surrogate mother and the child delivered
by her. Surrogacy demeans the mother-child relationship and turns women into
breeder machines. The separation of surrogate mother from surrogate child put the
adverse impact on the basic unit of the society i.e. the family of surrogate mother.
Preservation of the family life is significant for the development of civilized society.
But surrogacy violates the right of companionship of the surrogate mother. Moreover
separation of mother and child puts immense strain on the woman when she gives up
the baby. This fact has been proved in Baby Manji Yamada v. Union of India
popularly known as Baby M case36 wherein the surrogate mother after handing the
child over to the intended parents became deeply disturbed, disconsolate, stricken
with unbearable sadness and had to have her child back. She could not eat, sleep or
concentrate on anything other than her need for her newly born baby. It is not in the
interest of the mother because it affects her health. Similarly, women are exploited
because they have not been told about the low rates of success, the probability of
multiple pregnancies and the high possibility of foetal abnormalities, instead they
have been forced to enter into surrogacy arrangements. Several international
instruments to which India is a signatory recognize the right of every human being to
the highest attainable standard of health37.

Similarly, it has been noticed and studied in the preceding discussion that in
most of the cases surrogate mothers entered into an agreement because they had been
compelled to do so by their greedy in- laws. In these types of contracts, the surrogate
mother is irrevocably committed before she even realizes the strength of her bond
with her child. The consent of surrogate mother is not well informed as she is forced
35
See, Gautamaditya Sridhara, supra note 13.
36
JT 2008(11) SC 150.
37
See article 12.1 of ICESCR.
 13

to relinquish her rights even before the bond with the baby grows. She never makes a
totally voluntary and, informed decision. The surrogacy contracts are mainly driven
by money consideration behind them and it has been noticed that everywhere the
surrogate mother is subdued to the lure of money by the richer couple who wish to
adopt the child. The desire to earn handy amount of money by in laws of women and
poverty of women drive them into this business against their wishes and consent.
Under such circumstances the surrogate mothers have not been informed by the terms
of surrogacy arrangements. The consent of surrogate mother cannot be treated as free
consent. It is advantageous to be well informed about the rights before deciding to
become a surrogate. But this is not so in case of all cases of commercial surrogacy
arrangements. It is not in the best interests of surrogate mother.

Moreover, when more than one embryo is replaced into the surrogate mothers
uterus, the risk of multiple pregnancies cannot be overruled. Around 20 to 25% of the
pregnancies resulting from in-vitro fertilization will result in a multiple pregnancy of
twins or triplets, depending upon the number of embryos replaced38. This carries
associated risk for both to the mother and to the child. The right to health cannot be
denied to surrogate mother as well. In the absence of law such type of problems in
case of surrogacy cannot be regulated.

Dean Roscoe Pound’s individual interest of personality includes interests in

the physical person, freedom of will, honor and reputation and privacy etc39. In case of
commercial surrogacy all these individual interests are at stake and these interests
need protection. The right to privacy, right to procreation and right of self
determination cannot be denied to any woman including to the surrogate mother. The
right to procreation extends to surrogate mother as she is exercising her own right to
make procreative choices. However, it is also argued that this right does not extend to
surrogate mother as she is not exercising her own right to make procreative choices.
But she alone has a right to decide whether to enter into agreement or not. She alone
has a right of self determination.

3. Interests and Rights of Commissioning Parents

38
Pratibha Ganesh Chavan, “Psychological and Legal Aspects of Surrogate Motherhood,”
All India Reporter 104(2008).
39
For details of these individual interests see, R.W.M Dias, “Jurisprudence,”431 ( First Indian
Reprint, 1994)
 14

The individual’s interest in domestic relation also includes interest in

relationship of parents and child. The infertile couples have a right to family and child
which are important individual interests. But the question is whether interest in
becoming parents of child is permissible at the cost of health of surrogate mothers. It
is true that the right to family and to have children, right to procreation and right to
access to modern scientific technology are some of the rights which cannot be denied
to commissioning parents. Modern reproductive technology has brought up a ray of
hope for infertile couples. But all these rights and interests come into conflict with
interests of child and surrogate mothers and are putting adverse impacts on the
society.
It is amply clear from the aforesaid discussion that commercial surrogacy
arrangements leads to commoditization of the surrogate child, breaks the bond
between the mother and the child. It interferes with nature and leads to exploitation of
poor women especially in underdeveloped countries where women being vulnerable
are forced to sell their bodies for money. In nut shell, in case of commercial surrogacy
the individuals private interests such as the interests of domestic relations of persons
such as husband and wife, parent and children and marital life all get adversely
affected and come into conflict with social interest such as preservation of the family.

Part-III

The Assisted Reproductive Technologies (Regulation) Bill 2010- An Attempt to

Reconcile Conflicting interests of Parties of Surrogacy

Aim of law is to build and maintain the efficient structure of a society which
sustains the satisfaction of the maximum of desires with the minimum of friction and
waste. Therefore law is concerned with satisfaction of individual or social needs,
wants, claims and interests. The law has to recognize just interests-individual, public
and social and it has to satisfy the competing claims to satisfy the just claims,
demands and expectations keeping in view the total common good40. This aim can be
accomplished through the process of social engineering which facilitates balancing of
conflicting interests. The Ministry of Health and Family Welfare along with the
Indian Council of Medical Research (ICMR) drafted the Assisted Reproductive
Technologies (Regulation) Bill in the year 2008 to balance and resolve conflicting

40
B. N. Mani Tripathi, “An Introduction to Jurisprudence,” 42 (15th edition 2005);W.Friedmann,
“Legal Theory,”321 (5th ed. 1967); S.N. Dhyani, “Jurisprudence and Indian Legal Theory,”
94(4th edition 2002)
 15

interests of parties of commercial surrogacy. Unfortunately, the ART Bill 2008 was
appearing ineffective to address the all concerns of the parties of surrogacy and
therefore recently the Parliament of India revised it and passed a new Bill in 2010. It
would not be out of place to mention here that before drafting of the aforesaid
mentioned Bills on reproductive technology, the ICMR had also framed guidelines for
ART clinics which were functioning within the country to deal with surrogacy.
However, the draft of both the Bills is somewhat similar to the ICMR guidelines of
2002. The draft of ART Bill 2010 can be said to some extent is affording protection to
the rights and interests of the parties involved in surrogacy and trying to reconcile the
conflicting interests of the surrogate mother, rights of the children and commissioning
parents. The following are the some of the important and significant provisions of the
newly drafted Bill which takes care of the interests, rights and well being of the
parties of commercial surrogacy.

Legal Enforceability of Surrogacy Contracts

It has been noticed that in surrogacy arrangements, the interests of the

surrogate mother, commissioning parents and child born out of such contracts are at
stake and scant attention has been paid till date towards resolving the conflicting
interest of the parties involved in surrogacy arrangements. There is a need to legalize
the surrogacy contracts so that the betterment of the parties of surrogacy can be
promoted and achieved. In this direction very important step has been taken in the
newly drafted Bill wherein surrogacy agreement has been defined and a legal backing
has been afforded to the contracts.

The Bill defines surrogacy agreement as “a contract between the persons

availing of assisted reproductive technology and the surrogate mother” 41. Similarly,
the ART Bill, 2010 further states that the surrogate agreements shall be legally
enforceable42. Obviously inclusion of this provision in the Bill will ensure and protect
the rights and interest of the parties of the commercial surrogacy contracts especially
the rights and interests of surrogate mother. Similarly the Bill makes it clear that the
surrogate mother in addition to the expenses borne by her for carrying on the
pregnancy43 may also receive monetary compensation44. The Bill also provides that

41
The Assisted Reproductive Technologies Regulation Bill, 2010, sec.2 (v).
42
Id.,sec.34(1).
43
Id., sec.34(2).
44
Id.,sec.34(3).
 16

single persons may also go for surrogacy arrangements. The above mentioned
provisions in the Bill will ensure that all the surrogacy agreements now are to be
treated at par with other standard contracts and the principles mentioned in Indian
Contract Act 1872 regarding contracts would also be applicable in case of surrogacy
contracts.

Guardian to Take Care of Surrogate Mother

It is worthy to mention here that India, especially Anand a small village in

State of Gujarat has become a centre of fertility market and has drawn the attention of
infertile foreign couples. In most of the cases of commercial surrogacy arrangements,
the foreign couples are the party. These couples cannot stay in India for a long time
due to their personal work related engagements. Under such circumstances the
question arises that whose duty it is to take care of the surrogate mother and the foetus
in her womb in India. During and after pregnancy of surrogate mother or till the child
is delivered and even in post pregnancy period, the care of the health of surrogate
mother is vital. In the absence of proper care, the health of both i.e. the surrogate baby
and mother will get affected. It has been noticed that the infertile couples from foreign
countries did not spare time to take care of the surrogate mother who is bearing the
child for them. The ART Bill, 2010 provides that a foreigner or foreign couple not
resident in India or a non-resident Indian individual or couple, seeking surrogacy in
India, shall appoint a local guardian who will be legally responsible for taking care of
the surrogate during and after pregnancy till the child is delivered to the foreigner or
foreign couple or the local guardian45. Surely incorporation of this kind of provision in
the Bill is a praiseworthy move on the part of the law makers.

Screening of health and age of Surrogate mother

As has been discussed earlier, money consideration plays an important role in

commercial surrogacy. The greedy in- laws and some time socio-economic status of
women drive them to enter into commercial surrogacy contracts irrespective of the
fact whether they are fit and healthy and capable to bear child. Ignorance of age and
health perspective can create complications to the surrogate mother in delivering
child. The Assisted Reproductive Technologies (Regulation) Bill 2010 provides that

45
Id., sec. 34.2
 17

the surrogate mother shall be properly screened so as to ensure the suitability

regarding her age and health. The Bill provides that no woman less than twenty one
years of age and over thirty five years of age shall be eligible to act as a surrogate
mother46. The Bill further provides that no woman shall act as a surrogate for more
than five successful live births in her life, including her own children. 47 These
provisions in the Bill will ensure that neither the young and nor the old aged lady
would enter into surrogacy arrangements. This provision of the Bill seeks to protect
the rights of women in society and takes care of the right of health of women.

Issuing of Certificate to Surrogate Mother

Right to be acknowledged for the services rendered by surrogate mother for

commissioning parents gives immense satisfaction to the surrogate mother. The
surrogate mothers should be recognized properly for the services rendered by them.
After all preservation of the individual’s interest of personality also include the
interest of physical integrity, honour and reputation. In case of commercial surrogacy,
the surrogate mother is paid by the commissioning parents for the services rendered.
The moment she hands over the child to intended parents her role comes to an end.
The ART Bill, 2010 makes a provision that the surrogate mother shall be issued a
certificate by the persons who have availed for her services acknowledging the fact
that she has acted as a surrogate for them. This provision will help to enhance a sense
of dignity among surrogate mothers and is in the best interests of the surrogate
mothers48.

Confidentiality of Surrogate Mother

Surrogacy may stigmatize surrogate mothers. They tend to be blamed to enter

into unethical and socially unacceptable business of commercial surrogacy. However
it should not be forgotten that in some cases they have been forced by others to enter
in surrogacy contracts. Whatever may be the reasons to enter into this business it
would not be just to stigmatize them. It is not in the best interests of women. Their
individual traits of personality such as dignity, privacy, honor and reputation must be
46
Id., sec.34(5).
47
Ibid.
48
Id.,sec.34(17).
 18

legally protected in the interests of society as a whole. The newly drafted Bill
provides that all information about the surrogate shall be kept confidential and
information about the surrogacy shall not be disclosed to anyone other than the central
database of the Department of Health Research, except an order of a Court of
competent jurisdiction49. In this way the Bill ensures and protects all the above
mentioned interests and rights of surrogate mothers for the betterment of the society.

Abnormalities of a Child no Bar in Adoption

The commissioning or intended parents may disown the child if he or she is

physically or mentally handicapped. It is not in the best interest of the child because it
amounts to discrimination against newly born baby and violation of article 14 of
Indian Constitution. The ART Bill, 2010 specifically includes a provision in this
regard so that the commissioning parents cannot refuse to adopt the child suffering
with any abnormality. The Bill provides that the commissioning parents or parent
shall be legally bound to accept the custody of the child irrespective of any
abnormality50 and any contravention of this provision amounts to an offence under the
Bill51. This is very significant provision in the Bill which makes it mandatory for the
commissioning parents to take the custody of the child. Definitely this provision in the
Bill would also help to protect the interest of the surrogate mother who cannot be
forced to retain the abnormal and unwanted child with her.

Legitimacy of Child born out of Surrogacy

The child born out of a legal and valid marriage is considered legitimate
child. Can a child born out of surrogacy contract be considered as a legitimate child?
This issue is very debatable and it has been noticed that the surrogate child is looked
upon with suspicion and considered illegitimate. The stigma of being called
illegitimate child is against the dignity of the surrogate mother as well as the child.
The tag of illegitimacy may affect the psyche and well being of the child and therefore
not in the best interests of the child. The Bill provides that a child born out of
surrogacy arrangement shall be presumed to be legitimate child of the couple or the
single person, as the case may be 52. In other words if the commissioning couple
separates or gets divorced after going for surrogacy but before the child is born, then
49
Id.,sec.34(12).
50
Id.,sec.34(11).
51
Id.,chapter VII
52
Id.,sec.35(1).
 19

also the child shall be considered to be the legitimate child of the couple. The Bill
further states that birth certificate of a child born through the use of assisted
reproductive technology shall contain the name or names of the parent or parents, as
the case may be who sought such use53. Similarly the Bill protects and takes care of
the interests of the child in case where commissioning parents opts for divorce. The
Bill provides that if the commissioning couple opts for divorce after going for
surrogacy but before the child is born then still in that case also, the child shall be
considered to be a legitimate one54.

Right of the Surrogate Child to Obtain Information

Every child has a right to know about his or her parents. The Bill makes
provision for surrogate child to obtain information about the donors or about surrogate
mother when the child obtains maturity55.

Besides the above mentioned provisions of the Bill, there are other
noteworthy provisions of the Bill which are useful to regulate commercial surrogacy.
These miscellaneous provisions are useful to protect the interests and rights of the
parties of surrogacy arrangements. These provisions are constitution of a National
Advisory Board for ART and State Boards for ART for laying down policies,
regulations and guidelines, registration authorities for registering ART clinics,
provisions prescribing duties of ART clinics and provisions regarding punishment in
case any of the provisions of the Bill is infringed.

Part-IV

Conclusion:-

The foregoing discussion makes it amply clear that in absence of law on

commercial surrogacy, it has become a great threat to the welfare of the parties
involved in commercial surrogacy. The rights and interests of the surrogate mother,
surrogate child and commissioning parents are conflicting with each other. The
confliction of interests and rights are putting adverse impacts on the basic unit of the

53
Id.,sec.35(7).
54
Id., sec. 35(4).
55
Id., sec.36.
 20

society i.e. the family. It is true that every person has a right to access to modern
scientific invention and assisted reproductive technologies have proved a boon for the
infertile couples all over the world in the field of medical science. But in the absence
of law there will be chaos in the society and therefore there is need to enact law to
reconcile the conflicting interest of the parties of surrogacy in the larger good of the
society. The Assisted Reproductive Technologies (Regulation) Bill, 2008 and 2010
succeeded to some extent to protect the interest and rights of the parties of surrogacy
but the problem is that the ART Bill 2010 till date has not been approved by our
Parliament. This lethargic attitude and indifferent approach on part of our law makers
to pass the Bill shows that even people sitting in Parliament are not bothered much
about the flourishing business of commercial surrogacy in India. They have forgotten
that in Constitution of India they have been assigned the duty to take care of the rights
of the citizens of India. Moreover, the ART Bill 2010 is not fully responsive towards
the concerns of the parties of commercial surrogacy. Law is nothing but a tool of
social change. It must be responsive towards the need, aspirations and current
concerns of the society. Let us hope that year 2011 will bring a ray of hope to the
parties of surrogacy and the comprehensive legislation will come into being to address
current concerns of the parties of commercial surrogacy.