4th NHRC LC-I NATIONAL MOOT COURT COMPETITION, 2016

TEAM CODE:

TC: 24

ON SUBMISSION BEFORE THE HONBLE SUPREME COURT OF INCA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INCA

IN THE MATTERS OF:

MARIA

AND

OTHERS

..PETITIONER
V.
UNION

OF

INCA

AND

..RESPONDENT

WRIT PETITION NO. ___/2016

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

OTHERS

4th NHRC LC-I NATIONAL MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS

LIST OF ABBREVIATIONS.................................................................................................iv
INDEX OF AUTHORITIES...................................................................................................v
STATEMENT OF JURISDICTION.....................................................................................vii
STATEMENT OF FACTS....................................................................................................viii
STATEMENT OF ISSUES......................................................................................................x
SUMMARY OF PLEADINGS...............................................................................................xi
WRITTEN PLEADINGS........................................................................................................1
1 THAT THE WRIT PETITION FILED BY THE PETITIONER IS NOT
MAINTAINABLE UNDER ARTICLE 32 OF INCAN CONSTITUTION AND THE
ACT IS NOT IN VIOLATION OF ARTICLE 14 OF INCAN CONSTITUTION.............1
1.1

THAT THE

SUPREME

COURTS

POWER

TO

ISSUE

WRIT

IS

DISCRETIONERY AND THIS CASE DOES NOT WARRANT THE EXERCISE OF

DISCRETIONERY POWER..............................................................................................1
1.2 THAT THERE IS AN EFFECTIVE ALTERNATIVE AVAILABLE........................1
1.3 THAT THERE IS NO LOCUS STANDI FOR THE PETITIONER TO
APPROACH THE COURT................................................................................................2
1.4 THAT THE LAW PASSED BY THE GOVERNMENT IS A LAW UNDER
ARTICLE 13.........................................................................................................................2
2

THAT THE

LAW COMMERCIAL SURROGACY

FOR

FOREIGNERS

(MISCELLANEOUS) ACT, 2015DOES NOT VIOLATE THE FUNDAMENTAL

RIGHTS ENSHRINED UNDER PART III OF THE INCAN CONSTITUTION.............2
2.1 LAW SHOULD NOT BE ARBITRARY, ARTIFICIAL OR EVASIVE. IT
SHOULD

BE

BASED

ON

INTELLIGIBLE

DIFFERENTIA

WHICH

DISTINGUISHES PERSONS OR THINGS THAT ARE GROUPED TOGETHER

FROM OTHERS LEFT OUT OF THE GROUP..............................................................3

4th NHRC LC-I NATIONAL MOOT COURT COMPETITION, 2016

i). PIOs and citizens can be grouped together..................................................................3
ii). Commercial Surrogacy means Commercial purpose.................................................4
2.2 THE DIFFERENTIA MUST HAVE A RATIONAL RELATION TO THE
OBJECT SOUGHT TO BE ACHIEVED BY THE STATUTE IN QUESTION............4
i). That single mother and unmarried women can constitute a different group.............4
3 THAT THE NEW ACT IS NOT AGAINST THE CONSTITUTION OF INCA AS IT
IMPOSES REASONABLE RESTRICTIONS ON THE RIGHTS OF DOCTORS AND
CLINICS...................................................................................................................................7
3.1 REASONABLE RESTRICTIONS OWING TO THE INTERESTS OF
GENERAL PUBLIC............................................................................................................7
(a) Interest of the general public on grounds of public health........................................7
(b) Issue of exploitation of women being against the interest of general public............8
c) They act as middlemen and deprive the women to get a better price for their work.
..........................................................................................................................................10
(d) Unenforceability of contracts as they are against public policy..............................10
3.2 CONFLICT OF LAWS BETWEEN COUNTRIES..................................................11
4. THAT THE ACT DOES NOT VIOLATE RIGHT TO LIVELIHOOD OF A
SURROGATE GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF
INCA........................................................................................................................................12
5. THAT THERE SHOULD BE A COMPLETE BAN ON SURROGACY.....................14
5.1 THAT SURROGACY AMOUNTS TO COMMODIFICATION OF BABIES AND
HENCE VIOLATIVE OF ARTICLE 21 AND 23 OF THE CONSTITUTION...........14
5.2 TREATMENT OF SURROGATES AS FORCED LABOUR VIOLATIVE OF
ARTICLE 23.......................................................................................................................16
5.3 IGNORANCE OF THE INTEREST OF THE CHILD............................................17
5.4 A CRUCIAL DIFFERENCE BETWEEN ADOPTION AND SURROGACY.......17
5.5. VIOLATION OF ARTICLE 19, 21 AND 23 OF INDIAN COSTITUTON...........18
PRAYER................................................................................................................................xiv

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LIST OF ABBREVIATIONS
&

And

Section

Paragraph

A.I.R.

All India Reporter

A.P.

Andhra Pradesh

ART

Assisted Reproductive Technology

Art.

Article

Cal.

California

Corpn.

Corporation

ed.

Edition

Guj.

Gujarat

In Re

In Reference

Ors.

Others

PIOs

People of Incan Origin

Punj

Punjab

S.C.C.

Supreme Court Cases

S.C.R.

Supreme Court Reporter

SC

Supreme Court

U.S

United States

v.

Versus

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INDEX OF AUTHORITIES
CASES
Baby M, Re, 537 A.2d 1227, 109 N.J. 396 (N.J. 1988)..............................................................5
Baby Manjhi Yamada v. Union of India, (2008) 13 S.C.C. 518.................................................3
Balwant v. State, A.I.R. 1991 J. & K. 20...................................................................................8
Chiranjeet Lal Chaudhary v. Union of India, A.I.R. 1951 S.C. 41............................................2
Delhi Transport Corporation v. D.T.C. Mazdoor Congress, A.I.R. 1991 S.C.........................18
Delhi Transport Corporation v. D.T.C. Mazdoor Congress, A.I.R. 1991 S.C. 101;................12
Express Newspaper Ltd. v. Union of India, A.I.R. 1986 S.C. 872;..........................................12
Ibrahim v. R.T.A., A.I.R. 1953 S.C. 79.......................................................................................7
Jabalpur v. Shivkant Shukla, A.I.R. 1976 S.C. 1207..................................................................7
Jan Balaz v. Anand Municipality and Ors., A.I.R. 2010 Guj. 21.............................................10
Jan Balaz v. Anand Municipality, A.I.R. 2010 Guj. 21..........................................................3, 4
Jaycee B. v. Superior Court,42 Cal. App. 4th 718 (1996)..........................................................6
Kamini Kumar Das Choudhary v. State of W.B., A.I.R. 1972 S.C. 2060...................................1
Kanubhai Brahmbhatt v. State of Gujarat, A.I.R. 1987 S.C. 1159............................................1
Kedar Nath Bajoria v. Stae of W.B., A.I.R. 1953 S.C. 404........................................................3
L.I.C. v. Consumer Education and Research Centre, A.I.R. 1995 S.C. 1811..........................12
M. S.Bhut Educational Trust v. State of Gujarat, A.I.R. 2000 Guj.160;..................................12
Mahesh Chandra v. Regional Manager, U.P. Financial Corpn., A.I.R. 1993 S.C. 935.....12, 18
Malarkosla v. Mushtaq, A.I.R. 1960 Punj. 18..........................................................................15
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597........................................................12
Manji Yamada v. Union of India, (2008) 13 S.C.C. 518..........................................................15
Netai Bag v. State of West Bengal, A.I.R. 2000 S.C. 3313.......................................................12
Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180.....................................12
Om Kumar v. Union of India, A.I.R. 2000 S.C. 3689..............................................................12
Pathumma v. State of Kerala, (1978) 2 S.C.C. 1........................................................................9
Peoples Union v. Union of India, A.I.R. 1982 S.C. 1473........................................................15
People's Union For Democratic Rights And Others v. Union of India and Ors., A.I.R. 1982
S.C. 1473..............................................................................................................................17
Sakhawat Ali v. State of Orissa, A.I.R. 1955 S.C. 166...............................................................7
Sant Ram, In re, A.I.R. 1960 S.C. 932.....................................................................................13

4th NHRC LC-I NATIONAL MOOT COURT COMPETITION, 2016

Shantabai v. State of Maharashtra, A.I.R. 1958 S.C. 532.........................................................6
Sreenivasa General Traders v. State of Andhra Pradesh, A.I.R. 1983 S.C. 1246...................10
State of Maharashtra v. Himmatbhai, A.I.R. 1970 S.C. 1157....................................................7
State of W.B. v. Anwar Ali Sarkar, A.I.R. 1952 S.C.R. 284........................................................4
V.N. Shukla, Constitution of India 51 (12th ed. Eastern Book Company 2013).......................3
Unni Krishnanv. State of A.P., A.I.R. 1993 S.C. 2178...............................................................7
X&Y, Re, [2008] E.W.H.C. 3030 (Fam.)..................................................................................11
STATUTES
Convention on the Rights of the Child, 1980 art. 1.................................................................17
Convention on the Rights of the Child, 1980 art. 2(1).............................................................16
Convention on the Rights of the Child, 1980 art. 7(1).............................................................17
The Constitution of India, 1950 art. 19(1)(g).............................................................................7
The Constitution of India, 1950 art. 39(f)................................................................................14
BOOKS
D.D. Basu, Commentary on The Constitution of India 3926 (8th ed. Wadhwa and Company
Law Publisher 2007)..............................................................................................................1
M.P. Jain, Indian Constitutional Law 1354 (7th ed. LexisNexis 2015).....................................6
M.P. Jain, Indian Constitutional Law 879 (7th ed., LexisNexis 2015)......................................3
O.P Rai, The Constitution of India 30 (2d ed. Orient Publishing Company 2014).................18
Tilokchand v. Munshi, A.I.R. 1970 S.C. 898..............................................................................1
OTHER AUTHORITIES
A. Pande, At Least I Am Not Sleeping with Anyone': Resisting the Stigma of Commercial
Surrogacy in India, (2010) 36 (2) FEMINIST STUDIES 292...................................................15
Additional Protocol to the Convention on Human Rights and Biomedicine Concerning
Transplantation of Organs and Tissues of Human Origin 2002, art. 21; Convention on
Human Rights and Biomedicine 1997, art. 14.....................................................................18
Andrea Dworkin, RIGHT-WING WOMEN 182 (1983)...........................................................15
Andrea Dworkin, RIGHT-WING WOMEN 184 (1983)...........................................................15
B. Iselin & M. Adams, Distinguishing between Human Trafficking and People Smuggling 2
(U.N. Office on Drugs and Crime, Regional Centre for East Asia and the Pacific 2003).....8

4th NHRC LC-I NATIONAL MOOT COURT COMPETITION, 2016

Beverly Horsburgh, Jewish Women, Black Women: Guarding Against the Oppression of
Surrogacy, 8 BERKELEY WOMEN'S L.J. 29(1993).........................................................16
Elizabeth Seale Cateforis, Surrogate Motherhood: An Argumentfor Regulation and a
Blueprint for Legislation in Kansas, 4 W.T.R.-KAN.J. L. & PUB.POL'Y 101, 108 (1995).
..............................................................................................................................................15
Gena Corea, The Mother Machine: Reproductive Technologies from Artificial Insemination to
Artificial Womb 228 (1985)..................................................................................................15
Janice C. Ciccarelli & Linda J. Beckman, Navigating Rough Waters: An Overview of
Psychological Aspects of Surrogacy, 61 J. S.O.C. ISSUES 22, 23 (2005)..........................14
Karen Smith Rotabi& Nicole F. Bromfield, Will Global Surrogacy Be Regulated?, RH
REALITY

CHECK

(Feb.

7,

2016,

7:00

A.M.),

http://www.rhrealitycheck.org/blog/2010/07/07/will-global-surrogacy-regulated.S...........16
National Rapporteur on Trafficking in Human Beings,Human trafficking for the purpose of
the removal of organs and forced commercial surrogacy, (Feb. 27, 2016, 12:31 P.M.),
http://www.dutchrapporteur.nl/reports/organ-removal-forced-commercial-surrogacy........13
Nivedita Menon, The Regulation of Surrogacy in India-Questions and Concerns, Kafila (Feb.
29, 2016, 6:58 P.M.), http://kafila.org2012/01/10.the-regulation-of-surrogacy-in-indiaquestions-and-concenis-sama.................................................................................................7
Nivedita Menon, The Regulation of Surrogacy in India-Questions and Concerns,Kafila (Feb.
29, 2016, 6:58 P.M.), http://kafila.org2012/01/10.the-regulation-of-surrogacy-in-indiaquestions-and-concenis-sama.................................................................................................8
Patrick Winn, Underworld: Upending an Asian Baby Farm, GLOBALPOST (Feb. 27, 2016,
1:00

PM),

http://mobile.globalpost.com/dispatch/news/regions/asia-

pacific/thailand/110310/thailand-surrogacy-humantrafficking............................................14
Rohini

Mohan,

The

Lives

of

Others,

Tehelka

(Feb.

27,

2016,

7:25

P.M.),

http://www.tehelka.com/story_main40.asp?filename=hub1111008the_lives.asp..................9

4th NHRC LC-I NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF JURISDICTION
The respondent submits this memorandum for the petitions filed before the Honble Supreme
Court of Inca which have been clubbed for the hearing of this Honble court of Inca. All the
petitions filed are writ petitions filed under Article 32 of the Incan constitution.
This memorandum sets forth the facts, contentions and arguments for the petitioners in
the given case.

4th NHRC LC-I NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF FACTS
1. John, a Christian, is a resident US citizen developed love with Maria, an Incan national,
and a Hindu by religion. Both of them got married in Inca on January 01, 2009. Maria shifted
to United States of America in 2010 and took up US citizenship in 2014.It was discovered
that Maria would not be able to conceive a child. The couple wanted their own baby and so
decided to opt for a surrogacy arrangement.
2. They entered into an agreement with Seema, a 25 year old house maid, mother of a four
year old child, who agreed to act as the surrogate against the settled consideration and on
usual terms and conditions. However, in November 2015, Inca passed a new law:
Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015 which laid few provisions
regarding the surrogacy arrangements.
3. In view of the above law, the XYZ ART Clinic refused to render services to John and
Maria and Seema because John was foreign national and they had doubts about the eligibility
of Seema to act as Surrogate. Several petitions were filed:
(i) Maria approached the Supreme Court with a writ petition, challenging the constitutionality
of the Act, contending inter alia that:
a) The law is arbitrary and there no rationale behind the law, as passed.
b) Her human right to be a mother is being violated when technology permits.
c) If surrogacy arrangement is restricted to Incan couples only, then it would have adverse
fallouts.
d) It violates the fundamental rights of the surrogates and is an unnecessary interference in
the life of individuals without serving any public interest or purpose only because of
orthodoxy.
e) The Act prevents the optimal use of technological advancements.
(ii) The Association of Medical Practitioners of ART Clinics (AMPAC) filed a petition
challenging the Act as a violation of their (doctors and Clinics) fundamental right under
Article 19 (1) (g) of the Constitution.
(iii) The All Inca MahilaSamithi filed a writ petition challenging the Act as a violation of the
right to livelihood guaranteed under Article 21 of the Constitution of Inca on the ground that
Surrogacy arrangements with foreign nationals were no different than surrogacy which has
been permitted.

4th NHRC LC-I NATIONAL MOOT COURT COMPETITION, 2016

(iv) Single Women (Professional Surrogates) Association filed a writ petition challenging the
provision which restricts the right of single woman to act as surrogate as a violation of
human right to be treated equally at par with married women in protecting their right to
reproduction and right to be a parent and a right to trade and profession'.
v) The Association of Custodians of Traditional Ethics supports the new Law, and in addition
requests a complete ban on surrogacy as it jeopardizes the health of the surrogate woman and
the child; and infringes the right against exploitation. Even conceding surrogacy for Incan
nationals, there is no justification for surrogacy arrangements for NRIs and PIOs.

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STATEMENT OF ISSUES
1. WHETHER THE WRIT PETITION FILED BY MARIA IS MAINTAINABLE OR NOT
UNDER ARTICLE 32 OF THE INCAN CONSTITUTION.
2. WHETHER THE WRIT PETITION FILED BY SINGLE WOMEN ASSOCIATION
CHALLENGING THE PROVISION WHICH RESTRICTS THE RIGHT OF SINGLE
WOMAN TO ACT AS SURROGATE IS IN VIOLATION OF HUMAN RIGHT TO BE
TREATED EQUALLYOR NOT
3. WHETHER THE WRIT PETITION FILED BY AMPAC CHALLENGING THE ACT IS
IN VIOLATION OF THEIR FUNDAMENTAL RIGHT UNDER ARTICLE 19(1)(g) OF
THE CONSTITUTION OF INCA.
4. WHETHER THE ACT VIOLATES RIGHT TO LIVELIHOOD OF A SURROGATE
GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF INCA.
5. WHETHER THERE SHOULD BE A COMPLETE BAN ON SURROGACY OR NOT.

11

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SUMMARY OF ARGUMENTS
1. THAT THE WRIT PETITION FILED BY THE PETITIONER IS NOT
MAINTAINABLE UNDER ARTICLE 32 OF INCAN CONSTITUTION AND THE
ACT IS NOT IN VIOLATION OF ARTICLE 14 OF INCAN CONSTITUTION.
Even though Maria is an Incan national however her husband happens to be a foreign
national and is not an Incan citizen. The law passed by Inca comes within the purview of
Article 13(3)(a).The Supreme Court has the authority to review the petition filed by the
plaintiff but it shall not grant the writ of mandamus. Commercial Surrogacy for Foreigners
(Miscellaneous) Act, 2015does not violate the fundamental rights enshrined under part III of
the Incan constitution Law should not be arbitrary, artificial or evasive. It should be based on
intelligible differentia which distinguishes persons or things that are grouped together from
others left out of the group. There should be intelligible differentia and that such differentia
has a close nexus with the object that has been sought to be achieved. The purpose of
reasonable classification has a close nexus with the object that has been sought to be
achieved. The law makes an intelligible differentia on the basis of single women as there
might arise complication, single women are barred from being surrogates as they may get
attached to the child they have conceived. Married women are able to better handle the
responsibility of being a surrogate. Article 32 cannot be invoked simply to adjudge the
validity of any legislation or an administrative action unless it adversely affects petitioners
fundamental rights. Therefore writ petition is not maintainable and is neither in violation of
fundamental right guaranteed under article 14 of the constitution.
2. COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT,
2015 DOES NOT VIOLATE THEFUNDAMENTAL RIGHTS OF DOCTORS AND
CLINICS UNDER ARTICLE 19(1)(g) OF THE CONSTITUTION.
Though the Constitution of Inca provides for Article 19(1)(g), which deals with the right to
practise any profession, or to carry on any occupation, trade or business, there is a clause
attached to it which states Nothing in sub clause (g) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the State from making any
law imposing, in the interests of the general public, reasonable restrictions on the exercise of
the right conferred by the said sub clause .Laws vary widely, and there is no guarantee that a
12

4th NHRC LC-I NATIONAL MOOT COURT COMPETITION, 2016

contract or the child resulting from the arrangement will be recognized in another
country, which again shows the dark side of providing surrogacy treatments to foreign
nationals. Many ART clinics and doctors do not give exact information on the procedures and
their possible side-effects to the parents and act as middlemen. Therefore this creates risk to
the surrogates and leads to their exploitation. So the government has done no wrong in
banning foreign national from having surrogacy arrangements.
3. THAT THEACT DOES NOT VIOLATE RIGHT TO LIVELIHOOD OF A
SURROGATE GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF
INCA
The respondent contends that petition filed by All Inca MahilaSamithi challenging the act:
Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015 is not violating right to
livelihood of a surrogate under the constitution of Inca because in the case of Olga Tellis,
court said that depriving one from ways of earning a living will correspond to violation of
right to livelihood only if there is no other way of earning and life is not at all possible. In the
case at hand though government has put restrictions on foreign national to have surrogacy
arrangements but surrogates still have another option to earn their livelihood.
4. THAT THERE SHOULD BE NO BAN ON SURROGACY IN ORDER TO
PREVENT THE VIOLATION OF ARTICLE 19, 21 AND 23.
Surrogacy exploitation, however, reveal a different backdrop of the abuses caused to both
children and woman. It is in violation of Article 19, 21 And 23 of Indian Constitution.
Commercial surrogacy arrangements raise concerns of forced surrogacy and manipulation.
Given the newness of reproductive technologies, the intersection between human trafficking
and surrogacy has largely been overlooked. , most surrogacy arrangements, where the mother
receives compensation are against public policy.
Therefore, there should not only be ban on surrogacy arrangements with foreign nationals but
there should be complete ban on it.

13

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WRITTEN PLEADINGS
1 THAT THE WRIT PETITION FILED BY THE PETITIONER IS NOT
MAINTAINABLE UNDER ARTICLE 32 OF INCAN CONSTITUTION AND THE
ACT IS NOT IN VIOLATION OF ARTICLE 14 OF INCAN CONSTITUTION.
It is contended before the Honble Supreme Court of Inca that the writ petition under Article
32 of the Incan Constitution filed by the petitioner is not maintainable. Following are the
reasons put forth for the same.
1.1

THAT

THE

SUPREME

COURTS

POWER

TO

ISSUE

WRIT

IS

DISCRETIONERY AND THIS CASE DOES NOT WARRANT THE EXERCISE OF

DISCRETIONERY POWER.
Despite the notion that SC has the authority to review the case, however it is humbly pleaded
that it should not grant the writ of mandamus under article 32 of the Incan Constitution.
Such bold pronouncements have however, been eaten into by the later decisions of the court
that even when where fundamental rights are affected 1, granting of the writ under Art. 226 or
32 would be discretionary and may, therefore, be refused if any of the circumstances which
disentitle a person to discretionary judicial remedy exists in the case before the court, such as
delay, and the like2.
1.2 THAT THERE IS AN EFFECTIVE ALTERNATIVE AVAILABLE.
It is submitted that there is indeed an alternative remedy available to the petitioners. High
Courts can contest the constitutionality of any law. It is prescribed that one should always go
to a lower court if possible. Thus, the petitioners could have gone to the High Court to get
their matter redressed. In 1987 a two judge bench of the Supreme Court ruled in the case of
Kanubhai Brahmbhatt v. State of Gujarat3 that a petitioner who approached the Supreme
Court as there was an infraction of his fundamental right contended that he should have first
1 D.D. Basu, Commentary on The Constitution of India 3926 (8th ed. Wadhwa and Company
Law Publisher 2007).
2 Tilokchand v. Munshi, A.I.R. 1970 S.C. 898; Kamini Kumar Das Choudhary v. State of
W.B., A.I.R. 1972 S.C. 2060.
1

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approached the High Court in the first instance. The reason given by them and the view held
by them was that there was already a huge backlog of cases pending before the Supreme
Court.
1.3THAT THERE IS NO LOCUS STANDI FOR THEPETITIONER TO APPROACH
THE COURT
There is no Locus Standi for the petitioner to approach the SC as there has been no
infringement of their fundamental right because in the cases of Chiranjeet Lal
Chaudhary4Supreme Court observed that anybody who complaints of infraction of any
fundamental rights guaranteed under the Incan constitution is at liberty to move the Supreme
Court for the enforcement of writ.
Since in the case at hand, there is no infringement of fundamental right of the petitioner and
in the above case it was held that writ in Supreme Court can be enforced if any fundamental
right is infringed therefore petitioner has no right to approach the SC.
1.4 THAT THE LAW PASSED BY THE GOVERNMENT IS A LAW UNDER ARTICLE
13.
In November 2015, Inca passed a new law: Commercial Surrogacy for Foreigners
(Miscellaneous) Act, 20155. The law comes within the purview of law. Article 13(3)(a) of the
constitution therefore makes it clear that not only law made by the legislature but also law
includes any ordinance, order, bye- law, rule, regulation, the force of law. Thus such an
act is considered to be law made by the legislature. Thus it is humbly submitted that the act
passed by the government is a law under Art. 13.

2.THAT

THE

LAW

COMMERCIAL

SURROGACY

FOR

FOREIGNERS

(MISCELLANEOUS) ACT, 2015DOES NOT VIOLATE THE FUNDAMENTAL

RIGHTS ENSHRINED UNDER PART III OF THE INCAN CONSTITUTION

3 Kanubhai Brahmbhatt v. State of Gujarat, A.I.R. 1987 S.C. 1159.

4 Chiranjeet Lal Chaudhary v. Union of India, A.I.R. 1951 S.C. 41.
5 Moot Proposition, 3.
2

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It has been alleged by the petitioners that the right to equality under Art. 14 has been
infringed as it classifies a certain section of individuals and imposes a set of rules applicable
to only them and prohibiting the other group. However, it has been contended by the
respondents that such allegations are not true and that there is a justified rationale behind
such classification.
Art. 14 prescribes equality before all6. A legislature is entitled to make reasonable
classification for purposes of legislation and treat all in one class on an equal footing.The
Supreme Court has mentioned that Art. 14 does not rule out classification for purposes of
legislation7. In KedarNathBajoria v. State of W.B.8 it is said
The equal protection of the laws guaranteed by article 14 of the constitution does not mean
that all laws must be general in character and universal in application and that the state is
no longer to have the power of distinguishing and classifying persons or things for the
purposes of legislation.
For reasonable classification it is important that the two tests must fulfilled
2.1 LAW SHOULD NOT BE ARBITRARY, ARTIFICIAL OR EVASIVE. IT SHOULD
BE BASED ON INTELLIGIBLE DIFFERENTIA WHICH DISTINGUISHES
PERSONS OR THINGS THAT ARE GROUPED TOGETHER FROM OTHERS LEFT
OUT OF THE GROUP
The classification done is that of individuals i.e. in this case foreign nationals who are
prohibited from availing treatment of surrogacy Inca as compared to that of Incan couples.
The law made by Inca is not arbitrary as it has a rational basis. Surrogacy involves a contract
formed between two countries in the case of foreign nationals availing treatment of surrogacy
in Inca. It has been seen in past that such a situation has not proven to be very effective as
there have legal hurdles involving Inca. Such case was seen in the Baby Manjhi9 and Jan
6 M.P. Jain, Indian Constitutional Law 879 (7th ed. LexisNexis 2015).
7 V.N. Shukla, Constitution of India 51 (12th ed. Eastern Book Company 2013).
8 Kedar Nath Bajoria v. State of W.B., A.I.R. 1953 S.C. 404.
9 Baby Manjhi Yamada v. Union of India, (2008) 13 S.C.C. 518.
3

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Balaz10 case wherein the legal status of child born from surrogacy was unknown. A country
like Inca which is a developing country cannot indulge in legal hurdles as it already has very
pressing issues of its own. Hence to reasonably classify such individuals is justified by the
government of Inca.
Thus foreign nationals are reasonably classified as a separate group and hence do not violate
article 14.
i). PIOs and citizens can be grouped together
There is intelligible differentia to grouping PIOs and NRIs in the same category as they have
the notion of their ancestors residing in Inca at some point of time. Hence PIOs and NRIs are
grouped together under the act. However, foreign nationals do not have any relation with Inca
whatsoever.
Due to the legal hurdles that are involved in the cases that include foreign nationals for
surrogacy have given rise to various complications as seen in Jan Balazcase and Baby Manjhi
Yamada case.
ii). Commercial Surrogacy means Commercial purpose.
The government wants to ban commercial surrogacy for foreign nationals as there is a
commercial purpose involved for the surrogate as she is getting money from it. Hence many
surrogates are lured in to become surrogates due to the high remuneration they might get for
being a surrogate.
2.2 THE DIFFERENTIA MUST HAVE A RATIONAL RELATION TO THE OBJECT
SOUGHT TO BE ACHIEVED BY THE STATUTE IN QUESTION.11
The object that intended to be achieved was that of removing any kind of legal hurdles that
might be present in the surrogacy contract that would be formed between two countries if
foreign nationals come to Inca for surrogacy treatment. Baby Manji Yamada case was an
example of the problems that could arise when a contract of surrogacy is formed between that
of a foreign national and that of Inca. If there is any issue regarding the status of the foreign
national couple who opt for surrogacy then it might lead to an issue regarding the legal status
of the child. Also this might bring hurdles for the country commission surrogacy.
10 Jan Balaz v. Anand Municipality, A.I.R. 2010 Guj. 21.
11 State of W.B. v. Anwar Ali Sarkar, A.I.R. 1952 S.C.R. 284.
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Another issue that may arises that if one of the countries of the contracting parties of
surrogacy treatment does not allow surrogacy that would lead to a lot of legal hassles. Such
was seen in the case of Jan Balaz v. Anand Municipality12wherein the citizenship of the
children born from surrogacy was in question as the country of the commissioning parents i.e.
Germany did not allow surrogacy. It involved the country where the surrogate was provided.
Moreover such a case would involve Inca as well as it has done in the past .thus to avoid such
legal hurdles Inca has banned foreign nationals who come to Inca to avail the treatment of
surrogacy.
i). That single mother and unmarried women can constitute a different group
a). The law makes an intelligible differentia on the basis of single women as there might
arise complications.
There is intelligible differentia done to single women as a lot of complications arose where
single women surrogates were unwilling to give away the child that they had conceived.
b). Single women are barred from being surrogates as they may get attached to the child
they have conceived.
It was seen in Baby M13 case wherein the single woman who agreed to be a surrogate for the
couple got attached to the child that she gave birth to and refused to give it to the
commissioning parents. This gave rise to a lot of complications. Although it was an internal
issue however if such a situation arose where the commissioning parents happened to be
foreign nationals then it would give rise a lot of complications which would also involve the
country of that of which the surrogate belong to i.e. in such a case it would be Inca if such a
situation arose. Hence for this reason single women are barred by the Act to be a surrogate. It
has been contended that it would be better if a married woman becomes a surrogate.
The law makes a classification of only single or unmarried women who cannot be surrogate
is done on the basis of intelligible differentia as the grounds for such are not purely moral.
There are psychological risks also that are involved. A single women who may act as a
surrogate may get attached to the child that she conceives and may become difficult for her to
give it to the commissioning parents as seen in baby M case.
12 Jan Balaz v. Anand Municipality, A.I.R. 2010 Guj. 21.
13 Baby M, Re, 537 A.2d 1227, 109 N.J. 396 (N.J. 1988).
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c).Married women are able to better handle the responsibility of being a surrogate
It has been contended that women who are married are able to better handle the situation of
that of surrogacy as they are considered to be morally and psychologically stable. Hence
barring single women is considered to be rational on the grounds that are to stop the rent awomb industry and also to ensure them a proper livelihood instead of them giving
themselves for such a service purely for monetary reasons.
d).The issue of motherhood may arise if a single mother is a surrogate
It was seen in Jaycee B. v.Superior Court14where the child was born to a surrogate mother
using sperm and eggs from anonymous donors because the infertile couple was unable to
create their own embryo using the in vitro fertilization techniques. The couple chose to use
anonymous donors rather than asking the surrogate to use her own eggs .however in this case
the couple separated and tried to rescind the contract of surrogacy. Thus the child had five
people who could lay claim to parenthood. Such issue show the complexity that might be
present in the case of surrogacy.
e).The purpose of reasonable classification has a close nexus with the object that has been
sought to be achieved.
The main purpose for the government to pass the act is to avoid exploitation of women if
foreign nationals come to India as foreign nationals may lure poor women to enter into the
treatment for surrogacy. The law is made to protect the single women from exploitation.
Many women agree to become a surrogate simply because of the monetary reasons. The law
made ensures that single women are not exploited and to avoid any issues of motherhood or
attachment of child that she conceives might arise.
f).The human right of Maria to be mother is not being violated.
The human right of Maria to be a mother is not being violated as she is only barred in Inca.
She can avail the treatment of surrogacy anywhere.
g).The act is not opposed to public policy.

14 Jaycee B. v. Superior Court, 42 Cal.App.4th 718 (1996).

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The act passed by the government is not opposed to public policy as it is done for public
interest.But article 32 cannot be invoked simply to adjudge the validity of any legislation 15 or
an administrative action unless it adversely affects petitioners fundamental rights16
In the given case there is no fundamental right affected and there is no breach of the
fundamental right to equality hence article 32 should not be invoked simply to adjudge the
validity of any legislation or an administrative action.
3THAT THE NEW ACT IS NOT AGAINST THE CONSTITUTION OF INCA AS IT
IMPOSES REASONABLE RESTRICTIONS ON THE RIGHTS OF DOCTORS AND
CLINICS.
In Unni Krishnan v. State of AP17, it was said that establishing educational institutions cannot
be regarded as trade or commerce falling under Art 19(1)(g). Similarly, providing surrogacy
treatments and care to the surrogates and commissioning parents cannot be treated as trade or
commerce. As ART Clinics are not carrying out trade by treating foreigners, they cannot
claim right under Art 19 (1)(g) and the state may put restriction on their conduct without
complying with Art 19(6).
It is contended that Article 19(1)(g) provides every citizens the right to practice any
profession, or to carry on any occupation, trade or business but there is a clause attached to it
which states Nothing in sub clause (g) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing, in
the interests of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub clause18.
3.1 REASONABLE RESTRICTIONS OWING TO THE INTERESTS OF GENERAL
PUBLIC
(a) Interest of the general public on grounds of public health.
15 M.P. Jain, Indian Constitutional Law 1354 (7th ed. LexisNexis 2015).
16 Shantabai v. State of Maharashtra, A.I.R. 1958 S.C. 532.
17 Unni Krishnan v. State of A.P., A.I.R. 1993 S.C. 2178.
18 Indian Constitution, 1950 art. 19(1)(g).
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It is humbly submitted that in the case ofJabalpur v. ShivkantShukla19Addl. District
Magistrate, said that Liberty is itself gift of law and may by the law be forfeited or
abridged.
Also in the case of Saghir Ahmad v. State of U.P.,20The reasonableness of a restriction has to
be determined in a manner and from the standpoint of interests of general public and not from
the standpoints of interests of the persons upon whom the restriction is imposed
Interests of general public: It is a comprehensive expression comprising any matter which
affects public welfare or public convenience21 , e.g., public order health, morality22, safety,
maintenance of purity in public life23. ART clinics are to counsel the parents and surrogate
mothers of the process and risks involved. A major misuse of this duty has been noted. It has
been reported that it is at the counselling stage that the intended parents are in fact, advised to
prefer surrogacy over other methods of curing infertility.24 There are two aspects to this
problem: firstly, for the vast majority of Indian women infertility is preventable as it is caused
mostly by poor health, nutrition, maternity services and high levels of infections 25. It has been
estimated that only about two per cent of the cases are because of primary infertility
amenable to ART alone. Moreover, as a rule, of the 30,000 IVF cycles done in India every
19 Jabalpur v. Shivkant Shukla, A.I.R. 1976 S.C. 1207.
20 Saghir Ahmad v. State of U.P., (1955) 1 S.C.R 707.
21 Ibrahim v. R.T.A., A.I.R. 1953 S.C. 79.
22 State of Maharashtra v. Himmatbhai, A.I.R. 1970S.C. 1157.
23 Sakhawat Ali v. State of Orissa, A.I.R. 1955 S.C. 166.
24 Nivedita Menon, The Regulation of Surrogacy in India-Questions and Concerns, Kafila
(Feb. 29, 2016, 6:58 P.M.), http://kafila.org2012/01/10.the-regulation-of-surrogacy-in-indiaquestions-and-concenis-sama.
25 Nivedita Menon, The Regulation of Surrogacy in India-Questions and Concerns,Kafila
(Feb 29, 2016, 6:58 P.M.), http://kafila.org2012/01/10.the-regulation-of-surrogacy-in-indiaquestions-and-concenis-sama.
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year, only about one percent really need surrogacy.26 The intended parents who come with the
objective of curing their infertility are advised surrogacy over other forms, being more
convenient and less exploitative of the intended mother's body whereas it should be the last
option to be resorted to.
Apart from insisting on qualifications , the state may require that a person who carries on a
profession which deals with substances which are likely to affect the health 27 or morality of
the public must obtain license , imposing restrictions necessary to protect the public.
(b) Issue of exploitation of women being against the interest of general public.
Moreover, The United Nations Office of Drugs and Crime defines trafficking of human
beings as the recruitment, transportation, transfer, harbouring or receipt of persons, by
means of the threat, or use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of the giving or receiving
of payments or benefits to achieve the consent of a person having control over another
person, for the purpose of exploitation.28
From this alone, one might intuit that surrogacy could be the crime of human trafficking.
Certainly, the surrogate woman can be considered to be recruited, transferred, harboured and
received by deceitful procurement of her consent. This exploitation includes the exploitation
of the prostitution of others, other types of sexual exploitation, forced labour, slavery (or
deeds similar to slavery), servitude, or the removal of human organs. 29 As we see surrogacy is
against the moral and ethical values and encourages the exploitation of women, these ART
Clinics and doctors should keep a hand away from the processes involved in such activities.
26Rohini Mohan, The Lives of Others, Tehelka (Feb 29, 2016, 7:58 A.M.),
http://www.tehelka.com/story_main40.asp?filename=hub1111008the_lives.asp.
27 Balwant v. State, A.I.R. 1991 J. &K. 20.
28 B. Iselin & M. Adams, Distinguishing between Human Trafficking and People Smuggling
2 (U.N. Office on Drugs and Crime, Regional Centre for East Asia and the Pacific 2003).
29 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children art.3(a).
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Moreover in Pathumma v. State of Kerela30
While considering the reasonableness on the restriction, the court must strike a balance
between fundamental right and the larger and broader interest of society, so that when such a
right clashes with a larger and broader interest of society the individual right has to yield to
the larger interest.
Here in this case we see that surrogacy, also known as baby outsourcing, constitutes
exploitation of women encouraged to provide wombs-for-rent. Many surrogate mothers are
destitute. Furthermore, when the only motivation is money, surrogacy may have negative
health and social consequences for women. The goal of many ART clinics and their patients
is to achieve a clinical pregnancy utilizing all available means, including the use of donor
eggs/sperm and surrogacy. These practices, however, are ethically suspect at best. Egg
donation and surrogacy in particular are exploitive of women and unnecessarily place
womens health at risk, including their own fertility. This involves exploitation of women,
which concerns the larger and broader interest of society; the right of doctors has to yield to
the interests of people.
The agencies matching intended parents and surrogates are largely unregulated. As a result,
eager couples longing for a baby and poor surrogates seeking money can be preyed upon by
the unscrupulous or incompetent. Among the abuses: not paying the surrogate, failing to
cover medical needs, overcharging intended parents and unenforceable contracts. In light of
the Artificial Reproductive Technology (ART) practiced today, it reflects that there is no
standardization of the drugs used, no proper documentation of the procedure, insufficient
information for patients about the side-effects of the drugs used, and no limit to the number
of times a woman may be asked to go through the procedure. They do not disclose the fact
that a successful cycle need not lead to a baby being born. Further, the clinics do not give
exact information on the procedures and their possible side-effects.31
c) They act as middlemen and deprive the women to get a better price for their work.

30 Pathumma v. State of Kerala, (1978) 2 S.C.C. 1.

31 Rohini Mohan, The Lives of Others, Tehelka (Feb. 27, 2016, 7:25 P.M.),
http://www.tehelka.com/story_main40.asp?filename=hub1111008the_lives.asp.
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In Sreenivasa General Traders v. State of Andhra Pradesh32, the court upheld the restriction
stating,
Eliminating middle men so that the farmers/purchasers could get a better price for their
produce.
In the present case also, government is trying to eliminate the clinics, which are working as
agents between the surrogates and commissioning parents in order to gain some commission.
The commissioning parents pay the money to the clinics and these clinics, in order to make a
huge profit; they keep more than half of the money thereby depriving surrogate mothers a
better price for their work. Apart from this problem, many ART clinics and doctors do not
give exact information on the procedures and their possible side-effects to the parents. There
are horror stories of multiple embryos being implanted in the surrogates womb to ensure a
higher chance of success. There are cases of babies born with disabilities abandoned by the
intended parent as in the case of Baby Gammy, where Australian couple blessed with a twin
by the surrogate mother left the one who had Down syndrome.
(d) Unenforceability of contracts as they are against public policy.
Another aspect of surrogacy that requires consideration is the unenforceability of contracts
among the commissioning parents and the surrogate mother. This poses numerous threats to
both sides and raises many questions.
One clause of the Act includes banning surrogacy treatments for foreign nationals, which is
again a reasonable restriction on their right to freedom of profession and trade, as we see in
Jan Balaz v. Anand Municipality and 6 ors. Case 33,the issue of citizenship was raised, which
caused a lot of trouble to both the German couple and the Indian couple.
Moreover, in the baby Gammy case of Australia, an Australian Couple left a twin baby to the
Thailand surrogate mother, who was associated with a clinic just because it had a down
syndrome.
These cases raise risks that the surrogate mother undergoes while renting her womb, these
cases are prima facie directing the need of ban of foreigners for entering in the surrogacy
agreement with these Art clinics and doctors to provide them a surrogate.

32 Sreenivasa General Traders v. State of Andhra Pradesh, A.I.R. 1983 S.C. 1246.
33 Jan Balaz v. Anand Municipality and Ors., A.I.R. 2010 Guj. 21.
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3.2 CONFLICT OF LAWS BETWEEN COUNTRIES

Apart from these case based issues, general problem is the disparity of laws that prevails.
Laws vary widely, and there is no guarantee that a contract or the child resulting from the
arrangement will be recognized in another country, which again shows the dark side of
providing surrogacy treatments to foreign nationals. International surrogacy involves bilateral
issues, whether the laws of both the nations have to be at pair/uniformity else the concerns
and interests of the parties involved will remain unresolved and thus giving due regard to the
concerns and in order to prevent the commercialization of human reproductive system,
exploitation of women and commodification of children. In Re X & Y34 and Re IJ35, the facts
of the cases and issues arising were similar. In both cases, the application of Ukrainian law
effectively made the British couples the sole legal parents of the children born to the
Ukrainian surrogates and they were registered as such on the children's birth certificate.
Because the children did not have any Ukrainian parents and their legal parents were British,
they were not entitled to Ukrainian citizenship because, under Ukrainian law, children take
the nationality of their parents, who were British. On the other hand, under English law, the
surrogate mother and her Ukrainian husband were the sole legal parents of the children.
Under English law, the children had no English parents, despite the fact that the children in
both cases were genetically related to their English father. The conflicting laws on parentage
created real problems in obtaining immigration clearance for both couples.
Proliferation of commercial surrogacy arrangements for foreigners is fuelled by lack of legal
framework on the subject, abundant supply of cheap surrogate services laxity in
governmental regulations and economical medical infrastructure. And now, Government is
regulating the surrogacy arrangements for Incans and banning the foreign surrogacy with the
view to combat exploitation of women and preventing disharmony among countries over the
issue of surrogacy.
4. THAT THE ACT DOES NOT VIOLATE RIGHT TO LIVELIHOOD OF A
SURROGATE GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF
INCA
34X&Y, Re, [2008] E.W.H.C. 3030 (Fam.).
35 [2011] E.W.H.C. 921 (Fam.).
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The respondent humbly submits that petition filed by All Inca Mahila Samithi challenging the
act: Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015 is not violating right
to livelihood of a surrogate under the constitution of Inca.
The court in the case of Olga Tellis v. Bombay Municipal Corporation 36 said that: If the right
to livelihood is not treated as a part of the constitutional right to life, the easiest way of
depriving a person his right to life would be to deprive him of his means of livelihood to the
point of abrogation. Such deprivation would not only denude the life of its effective content
and meaningfulness but it would make life impossible to live. And yet, such deprivation
would not have to be in accordance with the procedure established by law, if the right to
livelihood is not regarded as a part of the right to life.
In the present case, there has been no violation of Article 21 of the Constitution. To establish
the violation Article 21, the act should be subjected to the equality test of Article 14 and test
of reasonableness under Article 19.37 Article 14 ensures fairness38 and guarantees against
arbitrariness.39It provides that every action of the government must be informed by reasons
and guided by public interest.40 Article 19 provides that a restriction can be characterized to
be reasonable if it strikes a balance between the fundamental right and restriction imposed
thereon.41 Here in the case at hand banning commercial surrogacy arrangements with foreign

36 Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180.

37 Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
38 Delhi Transport Corporation v. D.T.C. Mazdoor Congress, A.I.R. 1991 S.C. 101;Mahesh
Chandra v. Regional Manager, U.P. Financial Corpn., A.I.R. 1993 S.C. 935.
39 Express Newspaper Ltd. v. Union of India, A.I.R. 1986 S.C. 872;Netai Bag v. State of West
Bengal, A.I.R. 2000 S.C. 3313.
40 M.S.Bhut Educational Trust v. State of Gujarat, A.I.R. 2000 Guj.160;L.I.C. v. Consumer
Education and Research Centre, A.I.R. 1995 S.C. 1811.
41 Om Kumar v. Union of India, A.I.R. 2000 S.C. 3689.
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national is viable because government has put reasonable restrictions which are in best
interest of the public.
The Supreme Court, in its earlier order, stated clearly that it is the duty of the government to
provide the people of the country with necessary conditions for leading a peaceful life as
promised by the Constitution under Art. 21. 42 The respondent has only followed the said
order. Hence, it is submitted that there has been no violation as such on the part of the
government.
In the case at hand government has taken care to provide healthy and peaceful life to its
citizen here as in surrogates by banning commercial surrogacy for foreigners since these
surrogacy arrangements leads to exploitation of surrogates and The court in the case of In Re:
Sant Ram43, held that the right to life guaranteed by Article 21 does not include the right to
livelihood. It was held by a Constitution Bench of this Court that the language of Article
21 cannot be pressed in aid of the argument that the word life in Article 21 includes
livelihood also. This decision is distinguishable because, under the Constitution, no person
can claim the right to livelihood by the pursuit of an opprobrious occupation or a nefarious
trade or business, like tourism, gambling or living on the gains of prostitution
Jyotsna Gupta, a senior lecturer in gender studies and diversity at the University of Utrecht,
argues that Indian surrogate mothers are usually under enormous pressure from their husband
and family44.
In countries, where most of the population belongs to poor society, rights of womens from
that society were infringed and violated by the intermediary and the clinics for the money
which was agreed to be paid to the Surrogate mother for the purpose of Commercial
Surrogacy. Because most of the money which she is about to receive from this surrogacy
agreement were taken by the Reproductive clinics and the broker.
42 Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180.
43 Sant Ram, In re, A.I.R. 1960 S.C. 932.
44 National Rapporteur on Trafficking in Human Beings,Human trafficking for the purpose
of the removal of organs and forced commercial surrogacy, (Feb. 27, 2016, 12:31 P.M.),
http://www.dutchrapporteur.nl/reports/organ-removal-forced-commercial-surrogacy.
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Dr.Roel Schats45, chief medical officer of the IVF centre of the VU Medical Centre, argued
against Commercial Surrogacy, It is a form of modern slavery to use an Indian woman as a
breeding machine without the benefit of any form of care. Moreover, slavery system is the
violation human rights.
In fact, we can say that, For Commercial Surrogacy, the illiterate surrogates mother from the
poor background are in danger. Because brokers and the clinics exploit their rights and even
sometimes they are force to become the surrogate mother or egg donor.It was submitted in the
report46 that in case of Commercial Surrogacy, if a woman was forced, Coerced and exploited
to become Surrogates mother in that case it will be considered as a crime. Thereby, it will fall
under trafficking.
There is a huge demand of Surrogate mothers in the Medical Clinics or in the Reproductive
Industries, by the needy couples for the Gestational Surrogacy as well as for Commercial
Surrogacy. As the demand of surrogates mother and egg donor is too high in the current
scenario, for the Reproductive Industries, so to meet the demand, supply of the surrogates
mother and the egg donor is required in the same ratio. Thus, it will increase the trafficking of
women in the global black market of Reproductive trade to meet the demand of Surrogates
mother and egg donor as well.
It is the duty of the state to protect its people and put reasonable restrictions. As in this case
the governments decision to put ban in accordance with the act: Commercialization of
Surrogacy for Foreigners(Miscellaneous) Act , 2015 is a reasonable one because there is
trafficking of surrogate mothers in international surrogacy arrangements . Surrogates are
under the immense pressure from their family and therefore are forced to act as a surrogate
mother and since foreign couples pay more for the surrogacy arrangements so the Indian
womens get lured and enter into the surrogacy without looking into its nuances.
5.THAT THERE SHOULD BE A COMPLETE BAN ON SURROGACY
The respondent contends that the writ petition filed by THE ASOCIATION OF
CUSTODIANS OF TRADITIONAL ETHICS to put complete ban on surrogacy as it

45 Id.
46 Id.
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jeopardizes the health of the surrogate woman and the child; and infringes the right against
exploitation.
5.1 THAT SURROGACY AMOUNTS TO COMMODIFICATION OF BABIES AND
HENCE VIOLATIVE OF ARTICLE 21 AND 23 OF THE CONSTITUTION.
Surrogacy laws were allegedly enacted to protect both unborn babies and parents seeking
children. Surrogacy exploitation, however, reveal a different backdrop of the abuses caused to
both children and woman. Unfortunately, given the ethical dilemmas and newness of
surrogacy issues, many human rights groups are either ignorant or remain neutral to the
dangers of surrogacy. For example, Asia director for Human Rights Watch, Phil Robertson,
stated, Governments are confronting something thats totally new. . . . Human Rights Watch
like many others, are caught by the newness of this issue.47
Exploitation takes place when a women or a child 48 is subjected to commercial or immoral 49
purposes of some powerful man or group, taking advantage of natural disability or
helplessness of victim. At its very core, surrogacy is exploitation. Surrogacy compromises the
dignity of the child by making the child the object of a contracta commodity. It further
compromises the dignity of the mother, even if her participation is voluntary, by merely
treating her as a gestational oven. Religious fundamentalists, the Roman Catholic Church,
and feminists alike have condemned the practice of contractual surrogacy as baby selling
one that demeans and threatens women.50Aspects such as surrogates not knowing the
number of embryos inserted or aborted, not having a say in wanting to see/meet the baby, not
even being aware of the nationality of the intending parents, and not receiving psychological
counselling are undoubtedly tantamount to exploitation.
47 Patrick Winn, Underworld: Upending an Asian Baby Farm, GLOBALPOST (Feb. 27,
2016,

1:00

PM),

http://mobile.globalpost.com/dispatch/news/regions/asia-

pacific/thailand/110310/thailand-surrogacy-humantrafficking.
48 Indian Constitution, 1950 art. 39(f).
49 Peoples Union v. Union of India, A.I.R. 1982 S.C. 1473.
50 Janice C. Ciccarelli & Linda J. Beckman, Navigating Rough Waters: An Overview of
Psychological Aspects of Surrogacy, 61 J. S.O.C. ISSUES 22, 23 (2005).
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Some feminists have condemned surrogacy as the medicalization, commodification and
technological colonisation of the female body. They have argued that it was a form of
slavery-induced prostitution that emerged from the creation of a caste of female breeders,
composed of non-white women, in forced labour to gestate the embryos of the more
economically well-off white population.51Sometimes, the actual problem is that one of the
intended parents may lose interest and abandon the surrogacy procedure. This had happened
in the case of Baby Manji52.
In the case of Malarkosla v. Mushtaq,
The Court held that the state has power to prohibit inherently dangerous or immoral
occupations which cannot be allowed to exist at all, e.g., prostitution.53
Surrogacy is much like prostitution. In prostitution also there is the sale of sexual services for
a fee as in surrogacy. Dworkin argues that in the surrogacy scenario, the pimps are the
doctors and the brothels are the hospitals.54 The broker in the surrogacy context, who brings
the contracting parties together for a fee, has also been analogized to a pimp. 55He says that
surrogacy, like prostitution, allows society to equate women with sex and nothing more. He
also argues that a surrogacy arrangement is not one in which a woman can enter into by her
own free will56because in both prostitution and surrogate motherhood, the state has created

51 A. Pande, At Least I Am Not Sleeping with Anyone': Resisting the Stigma of Commercial
Surrogacy in India, (2010) 36 (2) FEMINIST STUDIES 292.
52 Manji Yamada v. Union of India, (2008) 13 S.C.C. 518.
53 Malarkosla v. Mushtaq, A.I.R. 1960 Punj. 18.
54 Andrea Dworkin, RIGHT-WING WOMEN 182 (1983).
55Elizabeth Seale Cateforis, Surrogate Motherhood: An Argumentfor Regulation and a
Blueprint for Legislation in Kansas, 4 W.T.R.-KAN.J. L. & PUB.POL'Y 101, 108 (1995).
56 Andrea Dworkin, RIGHT-WING WOMEN 184 (1983).
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the social, economic and political situation in which the sale of some sexual or reproductive
capacity is necessary to a woman's survival.57
Author Catharine MacKinnon agrees that the absence of free choice in prostitution is the
same as the absence of free choice in surrogacy.58She explains: even though an individual
woman may choose to pose nude, to sell her sexual services, or to rent her womb, the abuses
and exploitation inherent in these practices suggest that the decision is hardly one of choice.
That women chose to be vulnerable to risks such as AIDS, degradation, rape, and health risks
associated with pregnancy (in order to bear another couple's child) proves that many women
are desperate, not that they are free to choose.59
Similarly in the case at hand, any form of surrogacy whether with foreign nationals or with
Incan nationals is like prostitution and it should be prohibited completely because it
commodifies a woman's body and is degrading.
5.2 TREATMENT OF SURROGATES AS FORCED LABOUR VIOLATIVE OF
ARTICLE 23.
Commercial surrogacy arrangements raise concerns of forced surrogacy and manipulation.
Given the newness of reproductive technologies, the intersection between human trafficking
and surrogacy has largely been overlooked. 60 Womens bodies are sold internally and on the
global marketplace for sex trafficking, and it seems inevitable that organized crime will shift
into the surrogacy market and sales of womens reproductive capacity.

57 Gena Corea, The Mother Machine: Reproductive Technologies from Artificial

Insemination to Artificial Womb 228 (1985).
58 Beverly Horsburgh, Jewish Women, Black Women: Guarding Against the Oppression of
Surrogacy, 8 BERKELEY WOMEN'S L.J. 29(1993).
59 Manji Yamada v. Union of India, (2008) 13 S.C.C. 518.
60 Karen Smith Rotabi& Nicole F. Bromfield, Will Global Surrogacy Be Regulated?, RH
REALITY

CHECK

(Feb.

7,

2016,

7:00

http://www.rhrealitycheck.org/blog/2010/07/07/will-global-surrogacy-regulated.S.
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The word FORCE, must therefore be construed to include not only physical or legal force
but also force arising from the compulsion of economic circumstances which leaves no
choice of alternatives to a person in want and compels him to provide labour or service even
though remuneration received for it is less than the minimum wage.61
5.3IGNORANCE OF THE INTEREST OF THE CHILD
Surrogacy implicates several rights of the child under the CRC. First, the childs rights are to
be respected and ensured without discrimination of any kind including birth or other
status.62 While this provision was originally intended to protect illegitimate children, its
inclusiveness suggests a generous and expansive application, including children born of
surrogacy63.
Article 7 is the most problematic here. Article 7.1 provides in pertinent part that the child
shall be registered immediately after birth and shall have the right from birth to a name, the
right to acquire a nationality, and, as far as possible, the right to know and be cared for by his
or her parents.64There are two difficulties with this provision, both grounded in its
presumptive incorporation of national law. If that law provides that a mother is the person
giving birth, the childs status is unclear. If that law provides that a child born of surrogacy
cannot acquire the nationality of her intending parties, similarly, the child may be in a
precarious situation.
5.4 A CRUCIAL DIFFERENCE BETWEEN ADOPTION AND SURROGACY
There is a profound difference between adoption and surrogacy .French General Inspection of
Social Affairs noted in its February 2011 Report: In treatment for infertility, the aim is to
obtain a pregnancy or baby for the infertile parent; in adoption the opposite occurs :the aim is
to obtain a family for the baby or child. Even though issues of parental rights existing
adoption, the practice was established to ensure the best interest of a child by providing a
loving and secure home for a child that would otherwise lack such an upbringing. In
61 People's Union For Democratic Rights And Others v. Union of India and Ors., A.I.R.
1982 S.C. 1473.
62 Convention on the Rights of the Child, 1980 art.2(1).
63 Convention on the Rights of the Child, 1980 art. 1.
64 Convention on the Rights of the Child, 1980 art.7(1).
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comparison, surrogacy is centred on the desire for the commission adults to have a child who
does not yet exist. It is therefore inherently adult-centred in a way adoption is not. It has the
purpose of fulfilling the desire of an individual or a couple to be parents. In other words,
whereas surrogacy starts with the wishes of adults, adoption starts with the rights of the child.
Contrary to adoption, a surrogacy agreement is concluded not only before the birth of the
child, but even before its conception. This is also contrary to the dignity of the child and to
ACE Recommendation 1443 (2000) which roundly condemns the conceiving of children for
adoption. Moreover, a surrogate mother will likely receive payment for her services whereas
the birth mother in an adoption may not receive compensation. The prohibition of gain from
activities related to adoption demonstrates a firm policy against financial transactions that
involve a human body, for example, acquiring a child by buying the services of a
surrogate.65Thus, most surrogacy arrangements, where the mother receives compensation are
against public policy.
5.5.VIOLATION OF ARTICLE 19, 21 AND 23 OF INDIAN COSTITUTON
Because, from the above discussion, we have found that Commercial Surrogacy is a gift of
Science and Technology to the infertile or medically unfit couples to have their own baby.
Moreover, on the other hand it has a very strong negative impact in the Society as we can
found that how the Surrogate mother were treated in India. There is a great violation of
women rights under Article 21, which grants No person shall be deprived of his life or
personal liberty except according to procedure established by law 66, Article 19(1)(a) which
grants Freedom of Speech and Expression67 of the Constitution of India and Article 23
which grants Prohibition of traffic in human beings and forced labour 68. In addition, they
are not getting the proper money for their work also. The society where we are staying in
65Additional Protocol to the Convention on Human Rights and Biomedicine Concerning Transplantation of
Organs and Tissues of Human Origin 2002, art. 21; Convention on Human Rights and Biomedicine 1997, art.
14.

66 O.P. Rai, The Constitution of India30 (2d ed. Orient Publishing Company 2014).
67Delhi Transport Corporation v. D.T.C. Mazdoor Congress, A.I.R. 1991 S.C. 101; Mahesh
Chandra v. Regional Manager, U.P. Financial Corpn., A.I.R. 1993 S.C. 935.
68 Id.
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India is a male dominating society. Moreover, women had no rights to do even what they
wanted to do in their life. In addition, for this reason the women from Poor Indian society
were in great risk. Poor women were forced by their husband for the money paid, to become
surrogates mother and sometimes for the donation of their eggs. This is great violation of the
Article 21 and 19(1) (a). Even the hospital authority they do not allow the surrogates mother
to stay with their family during the pregnancy and they had to stay in the Hostels or the
accommodation provided by the Reproductive Clinics under their observations. By this also,
there right get violated under Article 21. In addition, they had no right to express their
feelings which is again violation of Article 19(1) (a). As they were, force to become surrogate
mother, so there rights were, violated under Article 23 also. Even if there is any complication
during the delivery of child, the life of the unborn child used to give more importance by the
Reproductive Clinic and not the mother life, which is again a violation of the Reproductive
Rights under Article 21.

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PRAYER
In the light of arguments advanced and authorities cited, the Respondent humbly submits
that the Honble Court may be pleased to adjudge and declare that:

1. The writ petition filed is not maintainable.

2. The Commercial Surrogacy for Foreigners (Miscellaneous)
Act, 2015 be declared constitutional because it is not in
violation of
Article 14
Article 19(1) (g)
Article 21
3. There should be a complete ban on surrogacy.

And make any other order as it deems fit in the interest of equity, justice and
good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE RESPONDENT.

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