c
 


 

 

 



This paper focuses on the matter of surrogacy with respect to the interest of child. For the
purpose of this paper I have only focused on the Hindu aspect though the paper argues about the
need for a legislature on surrogacy as a uniform civil code in order to protect the best interest of
the child. The paper also gives a historical background of surrogacy in India. As the bill is yet be
to enforced, the paper looks at the surrogacy law of countries like Israel, Canada and the United
Kingdom. In the case of conflict a contractual, economical and legal approach has been taken
from both the side although, the legal right of child to the commissioning parents has been
advocated. 

   

The institution of marriage has been reorganized by almost all civilization across the globe.
Though love and security have been identified as the salient reasons of marriage, procreation
holds the essence of the entire concept of marriage. It is a form reinforces the concept of
cohabitation, consortium and safeguarding property. This idea to save one¶s property by
transferring it to its own bloodline has promoted the concept of marriage and thus increased the
importance of having a child of your own. However, the phenomena falls apart for those who are
not capable to procreate. Example infertile couple, homosexual, etc. Nevertheless, the
importance of bloodline and safeguarding of property through procreation does not reduce and
this is when surrogacy comes into picture. From centuries the world have seen woman
substituting on behalf of those woman, who are not capable of reproducing. With the recent
boom of Assisted Reproduction Technology (ART), surrogacy has taken a new shape as, for
what was once done for humanity and love is now being done as a mode of earning and this
commercial form of surrogacy has raised many ethical and moral concerns. While there is the
one who acts as a surrogate mother and substitute for the intended mother, there is also the one
that is unable to reproduce and thus ask for substitution but, the most important person of the
surrogacy arrangement is the child as the child is the one person who is the most vulnerable and
who is no capacity to take care of himself/herself. The need for the study of surrogacy rises with
commercial surrogacy being accepted by the judiciary as legal though without a legislature many
a time it has been noted that the outcome is not in the best interest of the child. The increasing
rate of Surrogacy along with the fact that India now has become a favorite international spot of
medical tourism (mainly due to its less restrictive legal procedure and cheap cost) has caused
many people to think for in whose interest in this scenario and where does it leave the child in
case of conflict. This paper questions and highlights the concern of the child and his/her best
interest in the case of surrogacy. An international and national perspective has been taken to
compare and analyze the future stand that the coming legislature on surrogacy can take. 

c
  :

What is surrogacy?
Definition of surrogacy: Surrogacy, as the Latin word ³Surrogates´ from where it originates,
means a substitute or replacement, is a process of substituted reproduction where a female bears
the child of another woman in her womb with her or another woman¶s egg in order to give the
child to the person is substituting for. It has been defines in Black¶s Law Dictionary as 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.1

Who is a surrogate mother?

The Law Commission of India in its report ³Need for legislation to regulate assisted reproductive
technology clinics as well as rights and obligations of parties to a surrogacy´has define
surrogacy mother as the women who is appointed to bears a child on behalf of another woman
with her own egg or through implanting the egg of the woman from whom she is carrying the
child for or any other donor, in her womb. K
 
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1³Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties
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There are two types of surrogacy which are divided on the bases of the owner of the egg in the
pregnancy. They have been defined as the traditional surrogacy and the gestational surrogacy.
+ $surrogacy is the pregnancy when the woman who is bearing the child in her womb
does not provide the egg. Thus, in this case she is not the genetic mother of the child.3 The
Black¶ Law Dictionary defines Gestational surrogacy as the pregnancy in which one woman (the
generic mother) provides the egg, which is fertilized and another female (the surrogate mother)
caries the fetus and gives birth to the child.4´ The genetic mother may be the woman for whom
the surrogate mother is substituting for or any other donor. Thus, in this the egg is provided by
the commissioning mother with the commissioning fathers or the sperm or egg is provided by a
donor. This is fertilized by the husband sperm through ,-. $/,-. .

The more conventional method is the $surrogacy, where the surrogate mother, who
bears the child in her womb (For another person), also provides the egg which is fertilized by
husband¶s sperm through artificial insemination. Thus, in traditional surrogacy, the surrogate
mother is not only the genetic mother but also the gestational mother. Hence it may be called
partial or genetically contracted motherhood.5
The type of assisted reproduction technology used is also an important part of the surrogacy as
the genetic mother and father can be inferred from the type of technology used for surrogacy.

2 Surrogacy Arrangements Act 1985, chapter 49 also available at, http://www.surrogacy.org.uk/pdf/Sur-act.pdf

3 Technological conception is more often described as µassisted´ or ³artificial¶ conception. I use the term
³technology´ for two reasons: firstly, it is more precise than ³assisted´ because all fertility treatments, including
those that rely on sexual intercourse to achieve conception, provide reproductive assistance; second, ³artificial´
generally implies a substitute of lesser quality rather than the ³real´ thing, but technological conception is real
conception and its result ± a child- is just as valuable as that achieved through sexual conception. See Marsha
Garrison, ³Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage´ pg
838, '0# ' #, Vol. 113, No. 4 (Feb., 2000), pp. 835-923, Published by: The Harvard Law Review
Association, also available at , http://www.jstor.org/stable/1342435

4 ³Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of
parties to a surrogacy´ pg 9, also available at, http://lawcommissionofindia.nic.in/reports/report228.pdf

5Ibid.
The technique In vitro fertilization is a process of reproduction where the fertilization of the egg
(oocyte) by the sperm (spermatozoa) takes place in the laboratory instead of in the woman¶s
body. After fertilization takes place, the embryos are transferred inside the woman¶s body.6 In the
case of surrogacy, the sperm and egg can be of the intended father and mother respectively or of
the donor i.e. in case of the wife having problems in bearing or conceiving the child, husband¶s
sperm is fertilized with the donor¶s egg or the wife¶s egg. This implies that the child may or may
not be genetically connected to the intended mother but is definitively not genetically connected
to the surrogate mother. Another way of ART is the artificial insemination. This method is the
most commonly used in the case of surrogacy. Artificial insemination is a process in which the
sperm is inseminated inside the body of the woman and thus, the fertilization happens inside the
body of the woman, in the case of surrogacy, in the body of the surrogate mother. The
insemination of the sperm can with the intended father¶s semen.7 Therefore, the commissioning
father and the surrogate mother are the genetic parents of the child.
Surrogacy is also divided with respect to monetary reward. As when the arrangement of
surrogacy is done for which the surrogate mother is given a monetary rewards than it is called
commercial surrogacy. While when there is no change of money for the arrangement of
surrogacy or the relinquishment of the child8then it is called altruistic surrogacy. In India
commercial surrogacy has been accepted and the coming ART bill legalizes it.

When is surrogacy needed?

Surrogacy is needed when a couple is infertility i.e. unable to achieve pregnancy even after
trying. The period of trying have been stated in the Hindu law defines as one year or when there
the reproducing organ i.e. penis in the case of man and vagina in the case of woman is not
present or cannot reproduce due to a lower sperm count or fewer sperm. Impotency (erectile
dysfunction inability to sustain an erection sufficient for sexual intercourse or the inability to

6 ³Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of
parties to a surrogacy´ , also available at, http://lawcommissionofindia.nic.in/reports/report228.pdf

7 ³The Assisted Reproductive Technologies (Regulation) Rules ± 2010´, also availed at,
http://www.icmr.nic.in/guide/ART%20REGULATION%20Draft%20Rules%201.pdf

8 ³Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of
parties to a surrogacy´ , also available at, http://lawcommissionofindia.nic.in/reports/report228.pdf
achieve ejaculation, or both) has also the reason for people to opt for surrogacy. Surrogacy
becomes a great option when the mother doesn¶t want to bear a child for any personal reason.
Also, as it is not biologically possible for people who wish to become single parents surrogacy is
what they turn to. Section 377 of the Indian penal code decriminalizing gay sex implies the
increasing homosexuals in India and it won¶t be wrong to consider their want for their own child
like heterosexual couples. Also, there has been incidence when women have wished to excluded
the male and thus be the legal parent with another female.9 As, it is not possible for them to have
a child of their own biologically thus, surrogacy becomes a great way for them to have a child to
their own.

Why we need surrogacy i.e. importance of surrogacy?

Procreation is fundamental to the very existence, survival and continuance of the human race but
at the same time the institute of marriage that has evolved through centuries which gives stability
to society. One of the main essences of marriage is procreation as it is only through procreation
the concept of saving of property functions. The blood line continue to secure the property by
passing it to its successor, in addition, it also maintains the ³name´ of the family. Thus, on the
point of securing the property, the genetic link to their child is given lots of importance. However
when the couples are infertile they are left with no option other than adoption which sometimes
is not appreciated by everyone. Moreover in a county like India where there are so many
divisions of caste, class etc. the idea of adoption is not much encouraged as the only adoption act
that is present is for Hindus which does not allow a non-Hidu to adopt a Hindu child even the
Guardian and Wards Act allows one to be a guardian of a child and not the right to adopt him/her
child thus, surrogacy becomes an important mean of having a. However, surrogacy does
overlook a lot of areas, which questions the use of this arrangement.

The child is the most important part of the arrangement as it is for the desire of this child that the
arrangement takes place. At the time of birth, being an infant the child needs extra care and not

9 Nancy D. Polikoff, This Child Does Have Two Mothers; Redefining Parenthood to Meet the needs of Children in
Lwabi MOTHER ns nontraditional families, 78 GEO, L.J, 459 (1990); See Pg 839, Marsha Garrison, ³Law Making
for Baby Making: An Interpretive Approach to the Determination of Legal Parentage´ pg 838, '0#
 ' #, Vol. 113, No. 4 (Feb., 2000), pp. 835-923, Published by: The Harvard Law Review Association, also
available at , http://www.jstor.org/stable/1342435
being in any capacity to take care of himself/herself, it is important that in time of conflict the
best interest of the child should be considered first. But, it has been seen that the
arrangement/contract of surrogacy does not always work in the best interest of the child. In the
case of conflicts, be it the surrogate mother not willing to give the child to the intended parents10
or the child not being able to live with commissioning parents due to nationality issues, the child
is the one who is found at the worst condition. As it is only because of the arrangement done
between the commissioning parents and the surrogate mother that the child came into being thus,
it is the duty of both the parties to keep the interest of child in front of their own however, it is
not actuality. The child is found at a very vulnerable position as firstly he/she does not have the
capacity to take decision for himself/herself, secondly, the child is not binding on anyone so at
time when a child is born with any kind of impairment then there are high probabilities that the
intended mother and father would not keep the child. It is not in the best interest of the surrogate
mother to keep the child with respect to the want of the child in her life and the finical funds that
the child would require over years. In addition, society and her existing family can also be the
reason for the surrogate mother to not keep the child. On the other hand, the concern about
giving the child to someone who does not want him/her is also there as nevertheless, that child
would require more care and attention which is not certain in the case of bounding the child over
the intended parents.

Is commercial surrogacy like selling you body? Is commercial surrogacy immoral? Should it be
prohibited? These are some of the questions that arises to one mind as India moves towards
commercial surrogacy as a main player in the international arena. While the concept of surrogacy
does not hold rejection from most of us as, it is a chance where people who cannot have a child
of their own, through someone else have one. But commercial surrogacy brings in new aspect of
it being wrong as then the surrogate mother becomes someone who is commissioned and paid to
provide her service of carrying a child for nine months from her own body and then deliver the
child to the commissioned parents on birth. Some feminist have also compared it with
prostitution as it is in a way the selling of body where in prostitution the money is paid for sexual

10 Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 02/03/1988)

intercourse and thus have been against commercial surrogacy11, while in surrogacy money is
paid for the child that naturally comes due to sexual intercourse though here the technology
changes the scene although, some feminist have differentiated it on the bases of procreation and
recreation and thus have supported it.12 Concerns about commoditization of woman¶s body has
also been related to the selling of ³product´ i.e. their babies and thus it has been called immoral
as well as a violation to article 21 as almost like trafficking of humans for money.

While questions about best interest of child, morality and communization of human body revolve
around individual the concern of Public policy affects the society. With surrogacy being
legalized, adoption will be effected as more children who are already born will be homeless and
thus will be the states responsibility. This will result in more expenditure on state moreover, no
personal care to the child will be provided. Nevertheless, it is not certain that the state can take
complete care of so many homeless children when it does not even promise education to a child
who is more than fourteen years old. This will thus, turn into bigger problems of kids being
aimless and having no future that may increase unlawful activities.

j   

The idea of surrogacy is not relatively new to India. The Mythological character $
brother of01! was a surrogated child. He was transported miraculously from the womb
of Devaki (mother of 01! to Rohini¶s (2 '3¶s husband¶s another wife) womb.13 In
the colonial period, India was greatly exposed to Christianity, where the gospels states that Jesus
was born to ³Virgin´ Marry, which indicates that Marry was the surrogate mother of Jesus.
However, this is a disputed by different religious believes but the Bible nevertheless mentions
surrogacy, where in Genesis 30:3,Rachel (wife of Jacob) says to Jacob that, "Here is my maid
Bilhah; go in to her, that she may bear upon my knees and that I too may have children through

11 Elizabeth S. Anderson, ³is women¶s labour commodity?´ Philophy and Public affair 19, no I (Winter 1990): 71-
92; see also Margaret Jane Radin, ³Market- Inalienablity,´ Harwards Law Review 100 (1987): 1849- 1937.

12 Carmel Shalev, Birth Power: The case for Surrogacy ( New Haven: Yale Univerity Press, 1989)

13 Mahabharat
her"14. The concept of surrogacy has been acknowledged in Indian history and it has
implemented in a large scale in our country. In 1978, the world's second and India's first IVF (in
vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata, about two months after the
world's first IVF boy, Louise Joy Brown born in Great Britain.15 India since then has witnessed
the birth of a huge number of surrogated children. The increasing acceptance of homosexuality
in the past decade has also added to the use of surrogacy in India and worldwide.16 India has also
attracted a major number of international demands for surrogate mothers in India, because of
easy law and less cost as compare to other countries. However, there has been no law to regulate
this activity. Thus, the history demonstrates evidences that showcase the existence of surrogacy
from ancient history to colonial and post colonial times.

j 
:

Hindu law is the personal law of Hindu religion that governs a follower of Hindu religion in
matters such as marriage, divorce, adoption, etc. This law drives its source from customs17,
scriptures, etc. One of the major influences on Hindu law has been of A*! A
K³by the sacred tradition´ describes the woman as the soil and the man as the seed. Thus,
reproduction has been described as the union of soil with the seed which results in the production
of all corporeal beings.18 Moreover, in a soil only one kind of seed should be sown. The soil
which is acquainted with a seed should not be introduced to any other seed sung by the Vayu (the
wind).19 Thus, the seed of any man should not sow his seed in the soil, which belongs to another
man. The script also gives rational behind this which is that, ³If (one man's) bull were to beget a

14 2007, ³The New Oxford Annotated Bible with the Apocrypha, Augmented Third Edition, New Revised Standard
Version´, PG 52 Oxford University Press. See also Katz, Surrogate Motherhood and the Baby-Selling Laws, 20
COLUM. J.L. & Soc. PROBS. 1 (1986). See also Barbara L. Atwell, ³Surrogacy and Adoption: A Case of
Incompatibility´ pg 2

15 ³The Assisted Reproductive Technologies (Regulation) Rules´ ± 2010, pg 24, also available at,
http://www.icmr.nic.in/guide/ART%20REGULATION%20Draft%20Rules%201.pdf

16 A gay couple's journey through surrogacy: intended fathers, By Michael Menichiello

17 Dharma, rita and sadachara.

18 ³The Manusmriti´also available at, http://www.hindubooks.org/manusmriti.pdf

19 Ibid.
hundred calves on another man's cows, they would belong to the owner of the cows; in vain
would the bull have spent his strength.20The essence of having a child is related to the concept of
property and to keep the property safe, one would pass it to its successor. Thus, when a woman is
seeded with another man¶s seed (who is not her husband) then the essences is lost. However, if
³men who have no marital property in women, but sow their seed in the soil of others, benefit the
owner of the woman; but the giver of the seed reaps no advantage.´ The germinated crop which
is a result of the seed sown by water or wind into somebody¶s field is owned by the owner of the
field and not the seed.21 It is also stated that when a husband fails to do his part of providing the
seed than a woman who is authorized may get the desired offspring by the brother-in law of the
husband.22 This process of substitution incase of infertility, impotency, death, disease, etc. was
called  4*Even in case of adoption, the adopted boy (2 would be considered as
the real son.24 One of the main reasons for the acceptance of surrogacy and adoption was the
belief that ³heaven is not for him who leaves no male progeny.´25 The belief of the sacred
institution of man being a lost soul and the main purpose of life is salvation. But one life was too

20 ³The Manusmriti´also available at, http://www.hindubooks.org/manusmriti.pdf

21 Ibid.

22 Ibid

23 ³Another means of ensuring the assurance of male representatives was the practice of niyoga, by which a
kinsman was appointed to raise up issue by the wife of a childless husband, or of one deceased without leaving sons.
Mr. Iyer is of opinion that this was a custom prevalent among the aborigines of India at the time of the Aryan
invasion, and there- fore of great antiquity...So strong was the opposition of the priestly Hindu caste to niyoga that
the custom gradually declined, and has long been obsolete in India except among the Jats and the Lohd caste in the
northwest. This result redounds to the honor of the Brahmins, who, though desiring above all things to ensure male
representation of each family, scorned a practice which appealed to them as unworthy. With the assurance of one
degree of male descent the Hindu father had performed only his first duty. The next was to secure the necessary
grandson, and this impelling cause led to that custom of child marriage which has had such a blighting effect upon
India.´ See Hindu law influence, Yale law journal, pg

24 Ibid

25 Ramayana, bk. i, pt. vi. See also Digest of Hindu Law, bk. 4, ch. 4, ?? i66, '74, '75, see also, Hindu law and its
influence, Yale law Journal, pg 860
short to pay for all his sins and reach Heaven therefore, what a man cannot achieve in his
lifetime, is accomplished by his three descendant generation¶s scarifies and prayers.26

Surrogacy which has been taking place from an ancient time found itself in a better position with
respect to law. Even though, India lacks any secular law for adoption, surrogacy (though not
codified) deprives no one from the right to have a child. But even in surrogacy the concept of
adoption exists which people tend to overlook. The surrogate mother who is the substitute is the
actually biological mother27 and when the child is brought into existence in most cases it is not
genetically related to either one of the mother and fatherand therefore, the other parent is should
then adopt the child.28 In India the only law that governs adoption is the Hindu adoption and

26³Man is revealed as a lost soul and all his efforts here are to be directed to his future redemption. He has been cast
down from Heaven and must strive to regain his place on High. Only, because one span of human existence is too
short, it is impossible to pay it in full. But what a man cannot accomplish in his lifetime, his descendants by the
continuity of their sacrifices may achieve for him after death, and three generations are necessary to attain this
desired end. The prayers and offerings of those left behind assist him in his upward progression, and lead him at last
to immortality.´See HINDU LAW AND ITS INFLUENCE,YALE LAW JOURNAL. See also, Trevelyan, i Gibelin,
xxi, 294, citing, I Colebrooke, Digest, 267, 334, ³The Hindu law imposes upon a son and grandson the duty of
paying the debts of his father and paternal grandfather from whom he has not separated, provided they have not been
incurred for immoral or illegal pur- poses, or are barred by the law of limitation. As, according to Hindu ideas a man
and his three male paternal ancestors are the same person in different bodies, there would be a similar liability to pay
the debts of a great-grandfather, but by a special rule of limitation the liability does not extend beyond the grand-
son´

27 ³So the woman who has the baby is the surrogate mother. She is the substitute. But for what? For the real
mother? No, she is the real mother. So, for what is she a surrogate? She is the surrogate, according to logic (if that is
not too strong a word to use in relation to what lies behind this Bill or Act) for somebody who cannot have a baby.

! 3 !   ! 3 ! ! *! ##! ! &&! 
& 
! $! #!!! &&' &%

%"*K 173 PARL. DEB., H.L.
(5th ser.) 174 (1986), 5 Means, K 
*! ! !  IV N.Y *0*SCH. HUM. RTS.
ANN. 445, 445 n. 1 (1987). See also, Surrogacy and Adoption: A Case of Incompatibility by Barbara L. Atwell*
607A,7A,+K08-98

28 Katz, K  A! !! &:K $$ 0#20 COLUM. J.L. & Soc. PROBS. 1

(1986) K $Brophy, K  A! 
 !$20 J. FAM. L.263 (1982). Typically, the
parties to a surrogate parenting agreement are the surrogate, the biological father, and (where appropriate) the
surrogate's husband. In an effort to circumvent baby-selling statutes, the wife of the biological father is generally not
a party to the contract. Surrogate Parenting Associates, Inc. v. Commonwealth ( $*Armstrong, 704 S.W.2d 209,
210 (Ky. 1986). The biological father and his wife will generally be referred to herein as the adopting couple See
also,
maintenance act (HAMA) 1956Section 5 of HAMA, states that an adoption which is not in
commencement with the (HAMA) act shall be void. However, it has been debated that surrogacy
in a way has been a form of independent adoption, which has not been regulated.29 Nevertheless
the idea of adoption due to surrogacy is something that becomes necessary, so as to avoid any
misunderstanding in terms of the legal rights over the child though, it does not go inconsonance
with the current legal frame. For example section 9 while makes it important for the consent of
the mother before giving her child for adoption, this consent is debatable as, the consent in the
case of surrogacy is taken before the child even exists thus, there is a lack of complete
information that is acquired by the surrogate mother before she gives her consent.30 While
section 7 gives a male Hindu the capacity to take in adoption, section 8 gives the same right of
adoption to only an unmarriedfemale Hindu i.e. after marriage the husband will be the one to
decide on adoption.31 Thus, the lack of capacity of a female to adopt a child in a Hindu family
can affect the capacity of adopting a child in the case of traditional surrogating, when only the
male is genetically connected to the child. Another clash that can be observed in the current
functioning of surrogacy and the only codified adoption law in India is about the commercial
aspect of both. While K
;!&any person to receive or agree to receive make or give
or agree to make or give any payment or other reward in consideration of the adoption,

29 This Article adds to the ongoing debate and suggests that, as currently practiced, surrogate parenting is an
attempt to create a new form of independent adoption and that such agreements should not be enforced to the extent
that they are incompatible with legitimate and well thought-out public policies expressed in state adoption statutes.
Adoption is the method by which the state attempts to provide a suitable home for children whose biological mother
and fatherare unable or unwilling to care for them.I0 Because it results in a permanent severing of the legal ties
between a child and his or her biological parents, adoption is strictly regulated by each state." See Surrogacy and
Adoption: A Case of Incompatibility by Barbara L. Atwell*607A,7A,+K08-98

30 Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 02/03/1988)

31 2!! -*  ;; A! LJ 358 the court observed that, a married woman has got no right to take in
adoption during the subsistence of the marriage. But where the husband has completely and finally renounced the
world or he had ceased to be Hindu or some competent court has declared him to be of unsound mind, the wife can
adopt. 
commercial surrogacy has been reorganized by the supreme court.32 Also, Indian contact act,
declares consideration to be an important factor of a contract. Therefore, in the case of adoption
after surrogacy the legalization of financial compensation lies ambiguous as per the rule of law.33

 
    :

 : In Canada a federal statute has been passed in 2004 called the Assisted Human
Reproduction Act34. Section 5 of the Act prohibits Commercial surrogacy arrangements.
prohibited in However, surrogacy is still allowed in the form of altruistic surrogacy. The act also
prohibits trade in the reproductive capabilities of women and men and the exploitation of
children; women and men for commercial ends raise health and ethical concerns that justify. Any
sort of consideration given or offered or advertisement of payment is also not allowed. Making
sure that no woman is dragged into surrogacy counseling or inducing a female person to become
a surrogate mother, or perform any medical procedure to assist a female person to become a
surrogate mother, knowing or having reason to believe that the is prohibited. The minimum age
of surrogate mother is given as 21 years. However, there is no mention about the age cap. Under
section12, No person can reimburse a donor for an expenditure incurred in the course of donating
sperm, an ovum or transport of an 'embryo. The act also prohibits reimbursement of the
loss of work-related income incurred during her pregnancy which becomes unfair to the
surrogate mother sometime as the entire expense of post and pre pregnancy is solely on her.
However, the prohibition has the practice underground or has encouraged people to do it outside
Canada as the law does not talks about surrogacy outside its country. While for some people they
tend to get into surrogacy arrangement without a contract which later leaves them in a position
where they can not approach the court if anything is unjustified.35

32 ³Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of
parties to a surrogacy´ , also available at, http://lawcommissionofindia.nic.in/reports/report228.pdf

33 Ibid.

34 Ibid.

35 http://www.cbc.ca/health/story/2007/05/01/surrogates-pay.html, Paid surrogacy driven underground in Canada:

CBC report, Last Updated: Wednesday, May 2, 2007 | 10:38 AM ET
 
  : surrogacy arrangements have been legal in the United Kingdom since 200b
with the Human fertilization and Embryology Act 1990.36 Although, commercial surrogacy has
been considered legal in the UK, it is still illegal to pay more than the expenses for a surrogacy.
Under section 30 of the Human fertilization and Embryology Act, a court may make parental
orders similar to adoption; it also provides that if the surrogate mother consents to the child to be
treated as the child of the commissioning mother and father the court may make a parental order
to that effect. Like Canada advertisement for surrogate mother is prohibited. It can be said that
surrogacy law in the UK are more pro surrogate mother as the surrogate mother 2 of the act
under section 33, part has been stated as the mother of the child as she is the one who carries the
baby after placing the sperm and egg in her embryo. The act states that if at the time when the
embryo or the sperm and eggs were placed in the surrogate mother, the agreed female
parenthood conditions were met in relation to another woman, then, the other woman is to be
treated as a parent of the child.37 Section 59, defines the Surrogacy arrangements as a ³Non-
profit making body´ and thus even though one can pay a surrogate mother but not more than her
expenses. Here no specification to the amount to be given or taken.


 In 1996 Israel under the ³Embryo Carrying Agreements Law´ surrogacy was made legal.
However, the law only legalizes $ 
 therefore a surrogate mother cannot be
genetically connected with the child. The law has created a form of state controlled surrogacy
as; every surrogate contract must be permitted by the state itself. Israel is probably the only
country with such state controlled law. Israel like India is a multicultural country, with more than
75 % of Jews and along 16% of Muslims and a mix of other religion such as Druze, Christians
etc.38 Thus, Religion plays a major role in the law making so as to suit to the people who they
will be applied on. The law makes sure that each case go through the state for which there is a
state-appointed committee permits Surrogacy: Under the surrogacy law in Israel, there has been
developed a committee, this authority approves every case. The community consist of seven
number (i) two physicians (ii) one physician qualified in internal medicine; (iii) a clinical

36³Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of
parties to a surrogacy´ , also available at, http://lawcommissionofindia.nic.in/reports/report228.pdf

37 ³Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of
parties to a surrogacy´ , also available at, http://lawcommissionofindia.nic.in/reports/report228.pdf

38 Central Bureau of statistics, 2008 Census report http://www.cbs.gov.il/www/yarhon/b1_e.htm

psychologist; (iv) 1To whom correspondence should be addressed a social worker; (v) a lawyer,
as public representative; (vi) a clergyman, according to the religion of the parties involved.39 The
guidelines set by the committee are such that only a single, widow or divorced woman can
become a surrogate mother. This though goes with the religious sentiments of their wives not
carrying someone else¶s child but increase the chances of conflict as there are probabilities that a
single, divorced or widow woman would like to keep the child. Unlike the UK surrogacy can be
only opt by heterosexual couples. This increase the rate of Israelis going outside their county for
surrogacy as the homosexual couples finds no place in the legislature.

ð 

    

Contractual approach: After the Baby M case in UK and the Baby Manji case in India, the issue
of who has the legal right over the surrogate child has been highlighted but is still much
ambiguous. Where surrogacy arrangement is a contract between surrogate mother and the
commissioning parents, still the moral and ethical perspective is something that can¶t be omitted.
Nevertheless, Hindu law which is not based on a contractual approach gives value to the
procreation and succession as the essence of marriage. So how should get the child in case a
conflict arises. As sometime the commissioned parents separate before the birth of the child,
many times surrogate mother decide not to give the baby after he/she is born.

Surrogacy has been observed as a contract of substitution, where the surrogate mother in behalf
of the intended mother carries the child in her womb so as to give her the child when it is born.
However,Surrogacy consist of both the service that the surrogate mother is giving by keeping
the child in her womb for a period of nine months and providing the child nutrition from her
body thus, is of a intensive nature. The surrogate mother who does more than being a ³carrier´ of
the child, doesn¶t only contract of giving the baby but of also the giving the child her own body
nutrition Therefore, the surrogate mother in a traditional surrogacy will share more rights on the
child as, she is the genetic as well as the biological mother and even in gestational surrogacy

39 Legitimizing surrogacy in Israel, Abraham Benshushan and Joseph G.Schenker also available at
http://humrep.oxfordjournals.org/content/12/8/1832.full.pdf
when she is not genetically connected to the child she still is the biological mother who have
contributed to the growth of the child, without whom the existence of the child is impossible.
Moreover, consent is a major factor in a contract without which a contract cannot be consider as
a valid contract. In the case of surrogacy, consent is taken before the child even comes into
existence. Thus, scholars have argued that this consent is not a valid and completely informed
consent. The reason is that the surrogate mother (who is carrying the child for nine months) will
be attached with the child though, the degree of attachment can vary with each pregnancy. Many
commentators suggest that surrogacy contracts are not enforceable because the necessary
element of voluntariness is lacking. Thus claiming that no one would choose to be a surrogate
were there any remotely attractive alternatives. It is also due to the fact that it is also considered
as an employment option.
Nevertheless, contract law governing surrogacy arrangements does not mean that such contracts
are enforceable. It might be declared void because they are against public policy. As sufficient
knowledge and consent are essential to contract formation, without them it maybe ruled void and
unenforceable. Section 23 of the Indian Contract Act, states that, ³consideration or object of an
agreement is lawful, unless It is forbidden by law´ Therefore, a consideration can be made
unlawful with respect to public policy.

Though the court has been leant in this matter as keeping the concern of the surrogate mother
above the commissioning mother and father as never the less the surrogate mother is the
biological mother but in gestational surrogacy, in which the biological mother only nourishes the
baby from her body and there is no genetically linkage between the two. It will be not
appropriate to give all the legal right of the child to the surrogate mother. As nevertheless, it was
only because of the commissioning mother and father that the child was conceived by the
surrogate mother. Similarly, as the pregnancy would have not occurred if there was no
agreement, there would be no pregnancy if one of mother and fatherdidn¶t give their sperm or
egg so one of the commissioning mother and fatherare also genetically connected to the child. In
addition, it will be unfair to the commissioning mother and fatherto not get the child as other
than the genetic connection, search for another surrogate mother will not be affordable all the
time as, it would involve money, time and a wait for an unpredictable time.
Legal approach: It will also be wrong for the surrogate mother to keep the child as a wrong
precedent will be set. As the rationale behind surrogacy is to provide a mean through which
people who cannot have a child of their own, gets a chance to get it through another woman.
Thus, if the child is given to surrogate mother who after conceiving the child or after giving them
birth refuse to give the child to the intended couple, then it will be very hard to believe in the
whole system of surrogacy as it will never be certain that they will get a child, even after waiting
for nine months.

Economical approach: Never the less it can inferred that if a female agrees to act as a surrogate
mother than she is in need of money (as specially in country like India with social stigmas and
the whole pain of carrying someone¶s child for 9 month and nourishing him/her from her own
body) Thus, because of attachment with the baby, the baby should not line with the surrogate
mother as she is not in the economical status to provide the child best of health and education
and thus, in the interest of the child baby should be given to the mother and fatherwho can afford
the baby better and which in most case can be implied to be the commissioning parents.



 


In 1978, India had its first and world¶s second IVF baby Kanupriya alias Durga, about two
months after the world's first IVF boy, Louise Joy Brown born in Great Britain. While Great
Britain came with a law in 1990, India still lacks a legislature that will regulate all activities
related to surrogacy and other assisted reproduction technology.40 In India Surrogacy is governed
under the Indian Contract Act which is certainly not apt as surrogacy arraignment is more than
just a mere contract between two parties as the ³product´ that is on stake is a real human being.
Moreover, in the absence of an appropriate legislature the discretion is left on the judiciary. This
violation of separation of power will lead to decisions which will be based on the personal
opinion of judges which may be biased or not in the best interest of all the parties, especially the
child who is at no fault what so ever. Since, India gives personal law the right to govern the
family related issues therefore; their consideration should also be kept. But, as no personal law
talks about surrogacy and also, as different personal law have different perspective with children,

40 ³Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of
parties to a surrogacy´ , also available at, http://lawcommissionofindia.nic.in/reports/report228.pdf
adoption and marriage therefore, it can be very complex and violate of the right of equality to all
the children of the country. Thus, the surrogate law should be secular. One of the major reasons
for the surrogacy law to be secular is that it is related to the child. Since, a child in no capacity to
take a decision for him/her about where he wants to follow any religion or not it will be wrong to
impose any personal law on him/her. Also, as India is a country that has many different religions,
there are is no certainty that the surrogate mother and the commissioning mother and father are
of the same religion. Thus, personal law will not simplify the issues that may arise out of
surrogacy.

There is a Bill that is been drafted known as the Assisted Reproduction Technology (Regulation)
Bill41 This bill has been drafted so as to solve the issues relating to any form of ART usage and
thus, cover the matter of surrogacy too. However, there has been some concern that the bill does
not seems to cover properly.

The Bill focuses more on the promoting the interest of the provider of the ART rather than their
users. For example semen banks have been made quite an important player in the ART industry.
They have given the power to provide surrogates along with sperm and egg. Unlike Canada,
United Kingdom, there is no prohibitions advertisement. Though the law does not specific their
duties, accountabilities and liabilities.

With the growing demand of surrogacy the health of the woman has not been given much
importance. ART clinics which act as a place from where one can chose a surrogate mother,
allow a woman to have three ³successful´ deliverers and donate her egg sic times in her lifetime
in the intervals of 3 months (though the number of egg that can be taken out in each IVF setting
is not mention) thus, jeopardising her physical and mental health.42

41 Ministry of Health and Family Welfare, Government of India, Indian Council of Medical Research. The Assisted
Reproductive Technology (Regulation) Bill & Rules - 2008. [Draft]. New Delhi: MOH&FW, ICMR; 2008. [cited
2008 Dec 30]. Also available at, http://icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&%20Rules%20-
%202008-1.PDF

42 Sarojini N B and Aastha Sharma, Indian Journal of Medical Ethics 2009 also available at
http://www.issuesinmedicalethics.org/171co36,
The bill does not safeguard the right of Surrogate mother. In addition, where the bill encourages
medical tourism, not much has been done in order to regulate the egg donation for foreign
couples. The Bill, making commercial surrogacy legal, prohibits the use of the egg of the
surrogate mother for attaining pregnancy like Israel. Thus, making sure that the surrogate mother
is not the genetic mother, which implies that this bill works in the interest of the commissioning
mother and father. This makes the Bill work in the interest of child in terms of finical
requirement that the commissioning parents are in a better position to fulfill than the surrogate
mother in most of the cases. However, this also means that an infertile couple will have to look
for a surrogate as well as an egg donor. Also, one can infreer from certain clause that the bill is
more pro commercial surrogacy, than just the concept of surrogacy as, clauses like prohibiting
the use of sperm or eggs from a relative or a known person implies that altruistic surrogacy is
somewhere discouraged.

The major issue of legal rights as parents of children born through surrogacy has not been
sufficiently mentioned nor has been any conflict issue discussed. Thus, the bill does not make it
clear that who will have legal rights over the child. ³Though according to the National
Guidelines for Accreditation, Supervision and Regulation of ART Clinics,2005 by the Indian
Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS),
the surrogate mother is not considered to be the legal mother. The birth certificate is made in the
name of the genetic parents. The US position as per the Gestational Surrogacy Act 2004 is pretty
similar to that of India.´43

Nevertheless, there is a desperate need for legislature to regulate the surrogacy arrangements in
India.44India because of its low cost and more flexible legal course have seen a rapid growth in
its reproductive tourism, which can be noticed from the high demand of Indian surrogate
mothers. An average cost that the commissioning mother and father have to bear in India is
around $25,000 to $30,000 which is about 1/3rd of that in developed countries like the USA.45

43 ³Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of
parties to a surrogacy´ , also available at, http://lawcommissionofindia.nic.in/reports/report228.pdf

44 Ibid

45 Ibid.
This cost-effective treatment for infertility has been one of the major reasons that India attracts
lots of intended mothers and fathers from outside the country. ³ART industry is now a 25,000
crore rupee pot of gold. Anand, a small town in Gujarat, has acquired a distinct reputation as a
place for outsourcing commercial surrogacy. It seems that wombs in India are on rent which
translates into babies for foreigners and dollars for Indian surrogate mothers.´46

The moral issues of commoditization related with surrogacy have much been criticized by
activists and scholars. The 2008 ART Bill which legalizes commercial surrogacy leads to the
commoditization of the child. It also raises the ethical concern of whether it breaks the bond
between the mother and the Child. Records have shown that, among all the counties that legalize
surrogacy, the trend is more popular (nationally and internationally) in underdeveloped
countries. There are high probabilities that this is due to the cheap cost in these countries which
lead to the exploitation of poor women, who sell their reproductive tissues for money. The
Universal Declaration of Human Rights, 1948 states that ³men and women of full age without
any limitation due to race, nationality or religion have the right to marry and found a
family.´47Indian marriage system also gives high importance to procreation however;
consideration of reproductive right can violate the fundamental right of a dignified life, as most
of woman who becomes surrogate mother would do that under the need for money..
However, with surrogacy being legalized it is important to make sure that the surrogate mother is
monetary aided, as most of these woman cannot finically support themselves and the child in
their womb during pregnancy. Also, post pregnancy these women tends to get weak and they
can¶t take care of themselves. Thus, a basic finical aid is important to this surrogate mother
keeping their economical status in mind. Thus, to solve the ambiguity in the nature of
commercial surrogacy, legislative have to place a law soon resolving all issues relating to
surrogacy.

46 Ibid.

47 For instance, in *1*!!'*+'  

! !1, the Andhra Pradesh High Court upheld
³the right of reproductive autonomy´ of an individual as a facet of his ³right to privacy´ and agreed with the
decision of the US Supreme Court in <
3*K3 '*K 
63$!2, which characterised the right to
reproduce as ³one of the basic civil rights of man´. Even in <' '*K 
3, though the Supreme Court
upheld the two living children norm to debar a person from contesting a 
!=election it refrained from
stating that the right to procreation is not a basic human right. Ibid.
In 2008 a writ petition was filed in the supreme count of India article 32 of the Constitution
regarding the issue of custody of a surrogate child &A=>*! 
!$#&
  ! Anand, Gujarat. The commissioning parents Dr Yuki Yamada and Dr
Ikufumi Yamada were Japanese citizen. While Dr Ikufumi Yamada was the genetic father, the
egg was from a donor. Later there was a matrimonial discord between the commissioning
parents. And the wife disagreed to accept the baby. The genetic father Dr Ikufumi Yamada
desired to take custody of the child, but he had to return to Japan due to expiration of his visa.48
The Municipality at Anand issued a birth certificate indicating the name of the genetic father. As
there was no one to take care of the baby, the grandmother of the baby Manji, flew from Japan
and further filed a petition in the Supreme Court, where the court referred her to the National
Commission for Protection of Child Rights constituted under the Commissions for Protection of
Child Rights Act 2005. Baby Manji after two and a half month got a citizenship and left for
Japan with her genetic father and grandmother.
An Israeli gay couple had a surrogate child born to an Indian surrogate mother from Mumbai in
2008. One of the gay partners was the genetic father as he gave his own sperm.49 A Baby
(') was born, which the couple took back to Israel. However, the Israeli government that
requires a DNA test to prove their paternity before the baby¶s passport and other documents were
prepared. Thus, these differences in the legal requirement lead to the child staying without any
legal parents.


  

While Aask a woman to conceive only one man¶s seed in her soil (womb)scripts like
A!&!have shown clear evidence of surrogacy and moreover these are from the time when
technology did not have a major influence on people¶s life and thus the lack of knowledge about
the technology that allows reproduction without any sexual intercourse makes surrogacy a very

48 Baby Manji Yamada vs Union Of India &Amp; Anr on 29 September, 2008 IN THE SUPREME COURT OF
INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) NO. 369 OF 2008

49 6 JT 2008 (11) SC 150

approachable solution for people who can¶t procreate. India, with a history of surrogacy is in a
stage where commercial surrogacy has been acknowledged and accepted however, in a
multicultural country like ours there is always a conflict between national law and personal law.
Adoption does not become a easy option as the present legislature only allows a Hindu to adopt,
in addition this law is also not unproblematic for everyone as in a Hindu Family only a man can
adopt under the Hindu adoption and maintenance act, 1956. And thus, the coming legislature for
surrogacy should be under a uniform civil code which will bring everyone on the same grounds
as it is about someone life and thus, to dignify each life equally, surrogacy should not be
governed under personal law. Also, the fact that the essence of personal law is that it is what a
person decides for himself and has the option to opt of it however, here the child is not in the
capacity to take such decisions and thus, like the word suggest a ³person-al´ law should not be
enforced on anyone. And the main idea should be to make sure the interest of the child and so
that the interest of all the children of the country are safeguarded thus, the law should have some
basic features that will be applicable to every child born in no matter which religion to the
commissioning parent of any country.

The bill that has been introduce and might soon come into force should be in the interest of the
child. As firstly, the child is not a commodity and is a real human being who is being brought
because both the commissioning parent and the surrogate mother wish to. Law should be such
that his/her rights are safeguarded. In case of conflict there should be remedy available so as to
resolve the problem but at the same time the child should not be affected due to the delay in
judgment and the baby needs personal touch after being born. As the bill suggests being more
pro commissioning parents there should be remedy for the biological parents to have legal
custody of the child and wave off the right of surrogate mother. This is because the child was
wanted by the commissioned parents. In most cases the surrogate mother will not be even able to
take care of the expenses of the baby. Also, the fact that the child is connected to one of the
parents and will be more secured finically, makes it in the interest of child to stay with the
commissioning parents. However, in the case of commissioning parents separating it may be
more appropriate for the child to stay with the surrogate mother. In my maybe biased opinion,
the law should be more in the side of the commissioning parents as not only there is an intent for
them to have the child they can take care of the requirement of the child also, to give the child to
the surrogate mother based on her emotions will be wrong as, she knowing that the child will go
 to the commissioning parents entered the arrangement and giving her baby will only leave bad
precedent and the purpose of surrogacy will be lost. Also, Commercial surrogacy should be
legalizedbut at the same time be regulated. As banning it completely will not practically be the
best solution as the idea is to have a child by someone else when one is not able to. Also, no
regulation would lead to a ³black market´ that will leave people remedy less in times of conflict
that will indeed leave the child interest being uncared for and the state can¶t afford that as it
indirectly means







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determination of legal parentage, February 2000, Harvard Law Review
ii. Law commission of India report: ³Need for legislation to regulate assisted reproductive
technology clinics as well as rights and obligations of parties to a surrogacy´2008
iii. Sarojini N B and Aastha Sharma, Indian Journal of Medical Ethics 2009
iv. Ministry of Health and Family Welfare, Government of India, Indian Council of Medical
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v. Suzanne F. Seavello, Are You my Mother? A Judge¶s Decision in In Vitro Fertilization
Surrogacy, 1992, Hastings Women¶s Law Journal.
vi. Legitimizing surrogacy in Israel, Abraham Benshushan and Joseph G.Schenker
vii. Central Bureau of statistics, 2008 Census report Israel
viii. Paid surrogacy driven underground in Canada: CBC report
ix. Surrogacy and Adoption: A Case of Incompatibility by Barbara L. Atwell* COLUMBIA
HUMAN RIGHTS LAW REVZE W
x. Surrogate Motherhood and the Baby-Selling Laws, 20 COLUM. J.L. & Soc. PROBS
xi. HINDU LAW AND ITS INFLUENCE,YALE LAW JOURNAL
xii. The New Oxford Annotated Bible with the Apocrypha, Augmented Third Edition, New
Revised Standard Version
xiii. Irma S. Russell, Within the Best Interest of the Child: The Factor of Parental Status in
custody disputes arising from surrogacy contracts, 1988/1989, Journal of Family Law.
xiv. A gay couple's journey through surrogacy: intended fathers, By Michael Menichiello
xv. This Child Does Have Two Mothers; Redefining Parenthood to Meet the needs of Children
in Lwabi MOTHER ns nontraditional families, 78 GEO, L.J, 459 (1990
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