11B099-Commercial Gestational Surrogacy & Fertility Tourism

COMMERCIAL GESTATIONAL SURROGACY
AND FERTILTY TOURISM IN INDIA
MEDICAL LAW AND ETHICS

DISSERTATION
SUBMITTED TO: DR. SHOBHALATA UDAPUDI
SUBMITTED BY: PALLAVI LAKSHMI LAKRA
11B099
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ACKNOWLEDGEMENT
There are a number of people whose support and efforts we need to acknowledge in the
successful completion of this case analysis. We thank our parents and the Almighty for their
blessings and for making us who we are today.
This case analysis was possible only because of the able guidance of Dr. Shobhalata Udapudi,
whose inputs gave me a fair idea of what was expected of me in this paper and how to go
about achieving it.
Also our friends and seniors at GNLU and outside have been really helpful in supporting us
in whatever way they could. A special mention of the library support staff at GNLU for trying
their best to provide us with all relevant materials pertaining to our topic.
We most humbly acknowledge the contribution of everyone mentioned above, and all others
who have helped us in any remote way in successfully finishing this research paper, and
thank them for the same.
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OBJECT AND SCOPE OF THE STUDY
The object of this paper is based exclusively on literature review and it

serves
primarily
for
the
understanding
of
commercial
gestational
surrogacy and fertility tourism.
Further, the existing guidelines and regulations will be analysed in order to

understand the present exponential growth of the fertility market and
whether it is necessary to implement a concrete legislative framework to
govern and regulate ART in India, for the protection of rights of the parties
involved.
This study focuses on fertility tourism in India and proposes to examine

the reasons behind the increasing rate of fertility tourism in India, the
issues and challenges that need to be addressed with regard to the
increasing commercialization of ART in India.
A comparative analysis of the laws regulating the use of ART in India,

Australia, USA and UK will be done in order to understand what triggers
fertility tourism across the globe.
RATIONALE OF THE STUDY
As an outcome of the current technological advancements, the rate of

gestational surrogacy is increasing yearly. This dissertation attempts to
scrutinize the legal framework in India, the ethical scenario and the
reasons behind India becoming a host for fertility tourism.
SIGNIFICANCE AND UTILITY OF THE STUDY
The use of cases of surrogacy in India, Australia, USA and UK as examples

will help us explore the field of the booming international surrogacy
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industry. India with time has emerged as a world leader in surrogacy

market this study involves stories which focus on the current situation of
India and the mindset of the people. The comparative view of the
surrogacy industry will help us to highlight the differences and the
similarities present in the countries.
This study will explain the uncovered baby selling ring that is exploiting
the laws in India and further talk about examples where babies were lost
to the legal limbo due to loopholes in the legal framework. This study will
discuss the ethical concerns with respect to the intended parents,
surrogates and the infants which will be further help us to deconstruct the
legal structure and identify areas where surrogacy laws could be changed.
RESEARCH METHODOLOGY
The research methodology which the researcher proposes in preparing

this dissertation is primarily doctrinal in nature. The scope of the research
is limited to primary and secondary sources. Certain books, journals,
online article and publications will be referred to gain knowledge on the
subject. The Researcher intends to analyse the use of ART in India and
Fertility tourism for this reliance will be placed on Legislative provisions of
India and the situation in other countries regarding ART. The views given
by various eminent Personalities active in the field of Medical Law and
Ethics will be referred on certain issues to get better knowledge and
information.
Mode of citation A uniform mode of citation will be followed.
Method of writing A descriptive and analytical method of writing
will be adopted.
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HYPOTHESIS
Indian
culture
emphasizes
traditional
values,
family
heritage
and
motherhood. The theory of commercial gestational surrogacy is culturally

turbulent, unethical and potentially exploitive. It is fraught with many
social, ethical and legal issues and ample legal protection is not extended
to surrogate mothers in India.
RESEARCH QUESTIONS
What is surrogacy and what are the different types of surrogacy?
Whether there is a need for a comprehensive and specific legislation

in relation to commercial gestational surrogacy?
Is surrogacy a commercialized sector or not?
Is commercial gestational surrogacy in India ethical and does it

infringe upon social justice, safety, human rights and dignity?
To what extent the surrogates have control over their bodies and
reproductive capabilities?
If the newborn is handicapped what will happen? What are the rights
of surrogates and the child in this situation?
LIMITATION
The current study is limited to legislative framework of India, Australia,

USA and UK. It is restricted to the critical analysis of different legislations
and case laws and the ethical scenario in India. It does not exclusively
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deal with the in depth issues of motherhood with references to

surrogates neither does it include exclusive interviews of surrogates but
it focuses on it through secondary sources.
CHAPTERISATION
1. Introduction
It will discuss the definition of surrogacy as a method of substitution of

original mother by a proxy mother and talk about the different types of
surrogacy. The rapid use of ART that has changed the direction of
surrogacy towards commercialization will be discussed and whether it
is actually a pot of gold as described by a recent LCI report.
2. Commercial Gestational Surrogacy and Ethical issues

It will talk about the fact that most of the countries have banned
commercial gestational surrogacy. But in India which is a socially
conservative society it has been legalized after 2002. The rising rate of
commercialization of ART in India which has lead to a lot of legal issues
and challenges will be dealt with.
3. Surrogacy Legislation In India
The different guidelines will be looked into including ICMR guidelines

which comprises of eligibility criteria, contracts, payments, consent
and legal guardianship of child and various other sections such as
section 20A of Medical Council Act, 1956 in which surrogacy has been
identified as a method of reproduction.
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4. A comparative view on existing regulations in India, Australia,

USA and UK.
It discusses in brief the Australian legislatures stance on commercial

gestational surrogacy, surrogacy legislations in India, USA and UK.
5. Need for change
The current legal scenario may lead to immoral practices, legal

complications etc. The legislations present in the society leads us to a
negative direction. The rapid usage of surrogacy in India is an
evidence of the level of exploitation the poor have to face and
therefore a comprehensive law is a must is this situation. This chapter
makes suggestions in the surrogacy laws.
6. Conclusion and Suggestions.
The dissertation would be concluded by briefly summarizing the

findings of the researcher and compare it with the hypothesis.
TABLE OF CONTENTS
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Acknowledgement....................................................................................................................2
1. Introduction.......................................................................................................................9
Historical Background
Gestational Surrogacy and Fertility Tourism
The Commercialized Market of Surrogacy
2. Commercial Gestational Surrogacy And Ethical Issues..................................................17
Neglecting Human Rights in Surrogacy
3. Surrogacy Legislation in India.........................................................................................28
4. A comparative view on Existing Regulations in India, Australia, USA and UK............32
Surrogacy in India
Position of Surrogacy Laws in Australia
United States perspective on Surrogacy
Surrogacy laws in UK
5. Need for change................................................................................................................43
6. Conclusion........................................................................................................................45
7. Bibliography......................................................................................................................48
1. INTRODUCTION
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Surrogacy was defined by the Warnock Committee as the practice

whereby one woman carries a child for another with the intention that the
child should be handed over after birth. The literal meaning of surrogate is
substitutes. This indicates that the women carrying the baby acts at the
request of another woman who is unable to have a child.
Surrogacy
sometimes simply involves insemination of the commissioning fathers

sperm into the surrogate mother. This type of surrogacy is called Partial
surrogacy. Alternatively, the embryo is created in-vitro in case of full
surrogacy using the commission couples egg and sperm, which is later,
transferred to the uterus of the surrogate mother.
Commercial surrogacy is the process in which an individual or couple pays

a fee to a woman in exchange for her carrying and delivering a baby. At
birth, the child is turned over to the individual or couple, either privately
or through a legal adoption process. Couples with fertility problems, samesex couples, and single people who wish to be parents are the most
common types of people who seek surrogate mothers.1
Surrogacy has become an increasingly popular option for infertile couples
in many parts of the world. With the use of surrogacy increased, these
surrogacy arrangements are now becoming more and more socially
accepted but attached with controversial issues. The desire of the
surrogate mother to keep the child will only be one of the many ethical
and social concerns involved in surrogacy. Other issues would be the
moral ones revolving around the right to have one woman bear a child for
another, the surrogacy contract, payments to the surrogate mother and
the decisions to be made in case of conflicts regarding custody of child.
HISTORICAL BACKGROUND
1 Legal and Ethical issues of commercial surrogacy in India: An overview, academia, accessed
October 10, 2015,
https://www.academia.edu/1955503/LEGAL_AND_ETHICAL_ISSUES_OF_COMMERCIAL_SUR
ROGACY_IN_INDIA_AN_OVERVIEW.
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The history of surrogacy can be traced back to the dawn of time. In the
Bhagvata Purana, there is a story that suggests practice of surrogate
motherhood. But the modern trend of surrogacy began in the early 1970s
with the advent of technological advancement in the area. Infertility is not
a new problem and people have been able to start up families through
assistance of a surrogate mother. The first documented case of surrogacy
comes from the Bible.
In 1976, the first documented surrogate pregnancy was recorded. From

that moment until 1988, approximately 600 babies were born via
surrogacy.2 This number rose to over 5,000 between 1988 and 1992. On
July 25, 1978, Louise Joy Brown was the first test-tube (aka IVF) baby born.
While this was not a surrogate motherhood arrangement, this historic
event paved the way towards gestational surrogacy in the future.
Moreover, in 2008, 56 year old Jaci Dalenberg became the oldest woman
ever to give birth to triplets. She acted as a gestational surrogate mother
for her daughter Kim, and delivered her own grandchildren. 3 Actually, it is
a matter of fact that surrogacy has come a long way. From the rarely
spoken concept of surrogacy in past, to family members becoming
surrogates and commercialization of this whole concept today, the road
has been long with hardships and miracles.
GESTATIONAL SURROGACY AND FERTILITY TOURISM
Human beings have two basic instincts, the instinct of self protection and
reproduction. Commercial surrogacy is a controversial and yet a prevalent
phenomenon of the 21st century. A report by the Confederation of Indian
2 Legal and Ethical issues of commercial surrogacy in India: An overview, academia, accessed
October 10, 2015,
https://www.academia.edu/1955503/LEGAL_AND_ETHICAL_ISSUES_OF_COMMERCIAL_SUR
ROGACY_IN_INDIA_AN_OVERVIEW.
3 History of Surrogacy - Surrogacy Stories throughout Time, Information on Surrogacy,
http://www.information-on-surrogacy.com/history-of-surrogacy.html.
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Industry estimates the practice will generate $2.3bn a year by 2012. 4

Many human rights activist claim that the law of proper clear guidelines
on surrogacy and the commercialisation of the unregulated area have left
opportunity for unethical medical practices and the misuse of both
surrogates and infertile couples.
The word surrogacy has its origin in Latin surrogatus meaning a

substitute that is basically the person appointed to act in the place of the
mother. Thus surrogate mother is the woman who bears the child on
behalf of another woman, either from her own egg or from the
implantation in her womb of the fertilized egg form other woman. The
New Encyclopaedia Britannica defines surrogacy motherhood as the
practice in which a woman bears a child for a couple to produce children
in the usual way.
According to the Artificial Reproductive Technique (ART) Guidelines,

surrogacy is an arrangement in which a woman agrees to a pregnancy,
achieved through assisted reproductive technology, in which neither of
the gametes belong to her or her husband, with the intention of carrying it
to term and handing over the child to the person or persons for whom she
is acting as surrogate; and a surrogate mother is a woman who agrees
to have an embryo generated from the sperm of a man who is not her
husband, and the oocyte for another woman implanted in her to carry the
pregnancy to full term and deliver the child to its biological parents(s).5
The whole concept of surrogacy was a by-product of the IVF and artificial
insemination techniques. Surrogacy is actually one of the most low-tech
4 Inside India's surrogacy industry, The Guardian, accessed October 15, 2015,
http://www.theguardian.com/world/2011/dec/06/surrogate-mothers-india.
5 Analysing the status of the surrogate mother under The Assisted Reproductive Technologies
(Regulation) Bill, 2010, NUJS Working Paper Series, accessed October 2, 2015,
http://www.nujs.edu/workingpapers/analysing-the-status-of-the-surrogate-mother-under-the-assistedreproductive-technologies-regulation-bill2010.pdf
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treatments to overcome infertility. In this arrangement the woman who

carries the foetus, after the delivery of the child hands it over to another
family and after this she will be free from all the responsibilities towards
the child.
There are two types of surrogacy, genetic or the traditional one and
gestational. In genetic surrogacy, the ovum of the surrogate mother is
artificially inseminated by the donors sperm. The surrogate will be
considered the biological mother since she is genetically related to the
child in this case as her own eggs are used. An example of traditional
surrogacy can be found as far back in time as the Book of Genesis. The
birth of Ishmael resulted from Sara asking her servant, Hagar, to bear a
child for her and Abraham because of Sara's infertility. 6
Another type of surrogacy is called the gestational surrogacy; it can take

place through several modes. In this type of surrogacy the surrogate is
impregnated by transfer of an embryo created under in-vitro fertilization,
because of this the mother is not genetically related to the child. In this
case the surrogate mother is often referred to as gestational carriers.
Other options include using the intentional father's sperm and the egg of
an anonymous donor or using both sperm and egg donors to create the
embryo that will be implanted in the surrogate.7
This whole procedure of surrogacy can be either commercial or altruistic.

In commercial surrogacy the surrogate mother is paid for donating the
egg, gestating the foetus or even both. In altruistic surrogacy, the whole
arrangement is considered as a gift of the resulting child from the
surrogate mother to the couple.
6 Amy Garrity, A Comparative Analysis of Surrogacy Law in the United States and Great Britain - A
Proposed Model Statute for Louisiana,Louisiana Law Review, accessed October 2, 2015,
http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5826&context=lalrev.
7 Ibid.
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Critics of surrogacy charge that many risks are involved with the surrogate
process; such as: the risks to women, the risks to children, harm to other
children of surrogates, and psychological or emotional damage to all
parties involved in the surrogate arrangement. 8
These risks can be
addressed through legislative reforms and many of the concerns can be

eliminated or minimized to protect the participants including the surrogate
mother, child and the intended parents.
Fertility tourism the term which is now popularly used, describes the act
of travelling to a foreign country to take the advantage of ARTs. These
days the concept of fertility tourism is on a rise because of the fact that
many nations have their own rules and regulations for the use of ARTs. In
addition to this the availability of the services of surrogacy may be fuelled
because of the laid back scenario of the legal framework regarding
surrogacy and the low prices for providing the surrogacy services. In most
of the countries the reproductive technology industry is booming because
it is highly unregulated.
Fertility
tourism
enabled
by
unfettered
access
to
reproductive
technologies abroad, helps to make local restrictions on reproductive

options viable by ensuring the availability of proscribed reproductive
options for infertile couples who need and desire them most India is
currently a top destination for fertility tourism. 9 The number of high
quality centres and well trained western doctors and the low medical costs
has made India an attractive option for people around the globe. Another
reason for the growth in the fertility market is the scarcity of laws in
relation to surrogacy and ARTs.
8 Ibid.
9 Phenomenon of Fertility Tourism in India, Essay UK, accessed October 2, 2015,
http://www.essay.uk.com/free-essays/science/phenomenon-fertility-tourism-india.php.
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In 2005, national guidelines were drafted by Indian Council of Medical

Research (ICMR) to regulate the fertility tourism in India. But these
guidelines are not binding. As a consequence to this, the foreigners who
come to India take full advantage of the policies in India, which are
otherwise banned or regulated in most of the countries. This ultimate
outsourcing of the fertility industry in India is turning India into a hub for
surrogacy.
Since the 1970s when IVFs were first introduced, the governments have
grappled with the complex legal and ethical issues. In the past decade,
many countries have imposed restrictions on the use of ARTs and many
have also banned it outright. For example, in Italy gay couples, sterile
couples and single adults are prohibited from using ARTs. Whereas in
Sweden IVF is only allowed between the partners. In some of the countries
like USA, the regulations are less strict but the high price for the whole
procedure forces the people to countries like India where the cost is less
comparatively.
The proponents of medical tourism state that this industry tries to bridge
the gap between the people who want to avail the services in one area of
the world and the services located in the other regions.
International
medical travel is marked by its shifting toward a more institutionalized

and bureaucratized process. This means we might see a rapid increase in
the number of patients travelling in search of health to countries such as
India.10 The marketing of the medical fraternity does not always tackle
the harms of the globalized health care. in addition to this, a constant fear
is that some of the hospital or the surrogacy centres will only cater to the
foreign clients and this will undermine the citizens. Medical tourism no
doubt creates commoditization the human body. But prior to the advent of
10 Transnational Commercial Gestational Surrogacy: Cultural Constructions of Motherhood and
their Role in the Development of National Indian Guidelines Arizona State University, accessed
October 15, 2015,
http://repository.asu.edu/attachments/56963/content/Moorthy_asu_0010N_10820.pdf.
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ARTs women who were having infertility problems had only two options i.e.
either go through adoption or accept their infertility. However, the surge of
improved medical facilities has given women an opportunity to have
option of ARTs and choose surrogacy.
This advent has lead to a series of debates regarding the fertility process
from the conception procedure till the birthing process. Reproductive
tourism denotes a practice in which individuals travel long distances,
typically across borders, in order to receive reproductive services that
may not be available in their home country or may not be available at an
affordable price.11 The primary force behind the increase in reproductive
tourism is the desire to have a cheaper reproductive facility. Thus, people
who would otherwise be subject to the restrictions of their home country
now can opt for reproductive services like a global consumer who can
cherry pick the services based on their own convenience.
Commercial surrogacy is defined as a contractual relationship wherein a

surrogate and/or surrogacy agency are paid compensation for a 9-month
gestation period, including any sort of reasonable medical, legal and
psychological expenses.12 Looking at the definition of surrogacy, surrogate
motherhood has now become an economic transaction.
THE COMMERCIALIZED MARKET OF SURROGACY
11 Analysing the status of the surrogate mother under The Assisted Reproductive Technologies
(Regulation) Bill, 2010, NUJS Working Paper Series, accessed October 2, 2015,
12 Analysing the status of the surrogate mother under The Assisted Reproductive Technologies (Regulation)
Bill, 2010, NUJS Working Paper Series, accessed October 2, 2015,
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Recently the case of Australian couple rejecting a surrogates baby with

Down syndrome came to limelight. It sparked a storm of debate in the
society and showed how surrogacy has one become just a mode of
fulfilment of a commodity. It sheds spotlight on the growing global market
trend in bodily transactions and tissues. These markets have emerged in
the recent past for quite some time now, for example the sale of kidneys
and blood, have been a common nowadays. The inventions of the ARTs
have created new pathways for the people to offer their bodies for
monetary gains. In India most of the women who opt for surrogacy have
turned them into an occupation, with some of them doing it for the third
or the fourth time. Like many workers there success is rewarded with a
better payment but this type of activity is hardly ever termed as work.
Many critics have objected to the idea of bearing a child as a regular job
but it cannot be negated that since the liberalisation of the surrogacy laws
many women have opted to be surrogate mothers for financial gains.
If the income received by a surrogate through surrogacy arrangement is

seen it is equivalent to nearly ten years of family income. Commercial
surrogacy in India is many times referred as the next business
outsourcing business which basically means exploitation of women who
are in need of financial assistance. It is sometimes referred as wombs for
hire or the baby industry. Some people also defend the very business by
stating that some families desperately need a baby and cannot start their
own families without the help of the surrogate. This act helps the needy.
In India there are thousands of poor women with few economic

opportunities, who will see this as a way of earning some money. The
amount of compensation given to the surrogate mother is another
particularly contentious aspect of commercial surrogacy considering that
what is involved is the creation of life a baby no less. It is telling that in
surrogacy arrangements in the West up to 50 per cent of the total amount
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goes to the surrogate mother, while in India most of the money is

appropriated by sperm banks, ART clinics and lawyers.13
The medical industry is open to the business of babies and even

advertises sometimes. According to newspaper reports, at a hospital in
Anand the doctor in charge openly celebrates the income earning
opportunities she is providing for surrogate mothers.
14
While most of the
clinics advertise and some even go a step further by inviting women

between the ages of 25-30 years to join as members. Many claim that
surrogacy brokers will in the near future become a common and legal also.
The proliferation of the market in this poverty ridden country has led India
to become the lea for the commoditization of womens bodies.
2. COMMERCIAL GESTATIONAL SURROGACY AND ETHICAL

ISSUES
Commercial surrogacy breeds exploitation, abuse and misery. And in the

most unfavourable outcomes of the pregnancies, the surrogates are likely
to be paid and no provision for insurance or post-pregnancy medical or
psychiatric support is provided. There are a number of moral and ethical
issues associated with surrogacy, which is now more like a commercial
13 Commercial Surrogacy In India: Exploitation or Mutual Assistance?, fertilitymatter.ca, accessed

October 15, 2015, http://iaac.ca/en/commercial-surrogacy-in-india-exploitation-or-mutual-assistance4.
14 Ibid.
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racket and there is an urgent need for framing and implementing new set
of rules for the participants of a surrogacy arrangements.
Cross border reproductive care, like medical tourism, is where potential

parents travel from their home country to a country which will provide
them with access to medical care, in this instance, gestational surrogacy.
India has developed into a veritable Mecca for cross border reproductive
care, particularly gestational surrogacy.15 Due to the technological
advancements in India, availability of a large pool of impoverished women
and low cost has leaded the concept of gestational surrogacy to become
popular. Reproductive tourism in India alone is valued at more than $450
million a year and was forecast by the Indian Council of Medical Research
(ICMR) to be a $ 6 billion a year market in 2008. 16 According to a recent
survey by KPMG the fertility industry is worth Rs 750 crores in India and as
per the estimates presented by Confederation of Indian Industry (CII)
around $2.3 billion is generated through fertility tourism by India and it
was also disclosed that nearly 10,000 foreign couples visit India for
availing these services.
The concept of renting out ones womb is unnerving and is often viewed
as a form of prostitution, organ selling, or slavery, as each of these
activities involve the payment for use of someones body or parts of
someones body for another persons benefit. Thus there is divide as to
whether only altruistic surrogacy, surrogacy that usually takes place
within a family or between friends i.e. a woman carrying a child for her
sisteris permissible while commercial surrogacy should be outlawed for
reducing the reproductive process to financial terms.17
15 Ethical Problems of Gestational Surrogacy in India, Voices in Bioethics, accessed October 2,
2015, http://voicesinbioethics.org/2014/09/09/ethical-problems-of-gestational-surrogacy-in-india/.
16 P. Pushkar, Surrogacy in India: Shedding its Secrecy, New Pro Healthcare, Nov. 2013
their Role in the Development of National Indian Guidelines, ARIZONA STATE UNIVERSITY,
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It can be stated that via surrogacy the autonomy of the person seeking to
become a parent is respected but it can be further stated that as a matter
of social justice people, because of medical infertility or being single
should not be precluded from becoming a parent. However the bottom
line is that the rights of the surrogate mother as well the child should be
considered.
Objectification deals with the treating of a particular being as if it were

nothing but an object. In the case of commercial surrogacy, surrogate
mothers are treated as instrumentsas tools for the commissioning
genetic parents to obtain a child that is related to them. Often, the genetic
parents along with the surrogate mother view the surrogates as
incubators or maternal environments.18
Radical feminist writers argue that reproductive technologies have a

gendered nature which centres on the misuses of womans bodies as
mere means to meet patriarchal ends. As such many feminist scholars
argue that advances in reproductive technologies do nothing more than
further privilege the genetic desires of men and simply reduce the role of
women to their procreative capacity.19
The minimal regulatory framework in India has raised quite a number of

eyebrows from both the legal, social as well as ethical standpoint.
Commercial surrogacy can crystallize these problems many people face.
Commercialization of surrogacy has lead to treatment of surrogacy more
like creation of a product and then transferring the rights of the product.
The ethical concerns regarding surrogacy arise at three levels. Firstly, the
accessed October 15, 2015,
18 Ibid.
19 Ibid.
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most general question as to whether surrogacy of any kind is moral or

immoral arises. Next is the related but distinct question of whether
surrogacy of any kind should be legal or not.
The gestational surrogacy pool is basically having a lot of uneducated

women from the rural background. The sole reason why surrogacy is
opted in India is borne from the need to provide money to the families of
surrogates and as an act of altruism. Many a times, women agree to
become surrogates because they are compelled by their own husbands or
any other family matters. Surrogates are attached with a social stigma
here in India and therefore they are warehoused in communities specially
made for them to protect them from the public backlash.
Most of the couples are exploiting the poor women in India by hiring them
at a cut rate cost to undergo the pain and risk involved the whole
procedure. It raises the fact that the developing countries are acting as
baby farms and this has lead to the questions of voluntariness and risk
attached to the procedure of surrogacy.
Regarding surrogacy in India, it has to be established that the surrogacy

contracts respect the autonomy of the potential surrogates. These
surrogates are not informed about the potential risks attached with
pregnancy be it the hormones they need to take care or the medical
complications which can arise due to this method of surrogacy.
Gestational surrogates are required to take Lupron, oestrogen and
progesterone medication to help achieve the pregnancy, all of which
treatments can have serious side effects.20 In addition to the battery of
prenatal tests she must undergo, there is also the risk of pregnancy
complications - including ovarian torsion, ovarian cysts, chronic pelvic
20 Julie Bindel, Commercial surrogacy is a rigged market in wombs for rent, the guardian,
accessed October 15, 2015, http://www.theguardian.com/commentisfree/2015/feb/20/commercialsurrogacy-wombs-rent-same-sex-pregnancy.
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pain, premature menopause, and loss of fertility, reproductive cancers,

blood clots, kidney disease, and stroke and, in some cases, death.
Surrogacy as a whole is nothing but unnecessary inducement and

coercion. Further, it has been reported clinics in India pay the surrogate by
trimester, and even withhold the funds after the child has been
delivered.21 The clinics defend themselves by staying that they are
protecting the surrogates money from the hands of the husbands who
may take all the money.
Surrogates sometimes because of lack of knowledge do not have control

over their bodies and their reproductive capabilities. Many a times even if
medical complications arise the legislation does not specify whether an
abortion can be conducted or not. The surrogate should always frame the
surrogacy agreement with ease and include the various possible outcome
of the pregnancy to safeguard her right.
The autonomous decision to seek out ART and gestational surrogacy is

unethical when the fundamental procreation rights of the potential
surrogates are infringed. The right to contract is also a separate and
distinct right from procreation right as many a times the potential
surrogate is unable to understand the intricacies of the contract and her
autonomy is infringed. Further, her autonomy is infringed upon by her
male counterpart. The resulting contract will both be unethical and void as
no meeting of minds is there between the participants.
Women participating as gestational surrogates are able to use the act of

reproduction as a means to remove herself from the traditional female
role of caretaking and mothering by making the choice to gestate a child
and gift it to a couple who is unable to reproduce themselves. As such, the
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Indian surrogate transcends the traditional reproductive duties by

achieving validation in that she is employed and that she is able to help
provide life for another.22
The most unequal participant of any surrogacy arrangements is the child

resulting from it. The conceived child has no rights which respect to the
surrogacy contracts. As a matter of social justice there potential existence
should be considered while framing the contract. Therefore, for the sake of
social justice surrogacy contract negotiations should include a proxy for
the potential child to serve the needs best during a contract negotiation.
This proxy will act in accordance with the laws of the country of the origin
of the commissioning party. It is incumbent upon India to ensure that the
well-being of the child is fulfilled under the contract. India will suffer from
an international backlash if it is found that the surrogates are manipulated
into surrogacy and the children born are abused or neglected. This is not
the type of market where the government should allow profits to drive the
markets.
Under social justice the contracting parties need to see the potential
outcome of the contracts. From the social justice point of view the child
should receive reasonable assurance that he or she would be considered
as a child of the commissioning participants and be able to live in their
country of origin, that surrogacy is recognized in the country of origin and
the child will receive the medical and parenting benefits until age of
majority, and if the commissioning participants dies financial support
should be given to gestational carrier for raising the child. The proxy has
to look into these issues while framing the contracts and ensure the most
reasonable outcome for the child.

their Role in the Development of National Indian Guidelines, ARIZONA STATE UNIVERSITY,
22 | P a g e
But many would disagree with these points, firstly because the potential
children not have rights. Secondly, because assuming that intended child
has rights would present an unsurpassable barrier to forming a surrogacy
contract. This point out the fact that laws regulating the surrogacy
contracts should be drafted keeping in view the social justice concerns.
The opportunity of allowing surrogacy is not a fundamental right and

should therefore be regulated. As India is receiving a substantial amount
of income through surrogacy it needs to step in and regulate this
commercialization. Tight regulatory framework will reduce the profits
achieved but the other technology markets cannot be equated with
surrogacy
industry
and
therefore
the
government
should
make
amendments to make sure the human life is not affected. The parties
travelling to India are not exercising a fundamental right but seeking to
act autonomously for their own end despite the adverse effects their
autonomous actions may have on potential surrogates, and potential
children.23
In general, commercial surrogacy is helpful to women who cannot

naturally become a mother. It helps them to enjoy motherhood, at the
same time families wanting to expand but who cannot do so due to
medical complications, can also find a way out through commercial
surrogacy. But the point is what the ethical issues are coming up as to
commercial surrogacy. Commercial surrogacy arrangements depersonalize
the reproduction procedure and create a wide gap between the concepts
of genetic, gestational and social parenthood. The whole motives for
creating children has changed, it is now done for the sake of the parents
but for anothers benefit.
In the past few years the surrogacy cases have doubled. The demand is
expected to grow with the increase in awareness about the whole concept.
23 | P a g e
In Gujarat, India, more than fifty surrogates are pregnant. Given the
current guidelines in India it is necessary to ask whether they sufficiently
answer the complicated ethical and legal queries or not.
The case of Baby Manhji was highly publicized when the irregularities
present in the legal system in India. The intended father after the divorce
from the intended wife was not permitted as a single man to adopt the
child. The Supreme Court in this case upheld the commercial surrogacy
agreement. After this case the ICRM prepared ART Bill, 2008, this bill was
a framework of laws governing the practice of surrogacy in India. What is
needed in India is a greater degree of enforceability and this was revealed
as an outcome of Baby Manhji case. Other issues like whether the parental
rights should be given more weightage than the objections of surrogate
mother or the rights of the foreigners with respect to the financial
obligations towards an event of internal injury or death of the child.
Another potential issue is the fate of the child if the intended parents
dont want the child later.
In the gestational surrogacy, multiple embryos are produced and

implanted in the womb of the surrogates. But several other embryos are
destroyed or frozen. The destruction of these embryos is unethical as it
will be the destruction of life. The primary ethical concern should be to
treat the frozen embryos in such a way that they are not harmed.
The enormous amount of money put in the process of gestational

surrogacy smacks exploitation and manipulations. Spending a whopping
$1,50,000 to produce a human life just doesnt feel right. This amount of
money used raises the important questions about exploitation of women
and the virtual selling of babies all over the world.
It is incredible to see that many parts of US permit gestational surrogacy

and have no significant legal boundaries. On the other hand European
24 | P a g e
countries such as Great Britain and Germany either forbid gestational

surrogacy or regulate it.
Gestational surrogacy gives humanity a sense of power and control. Given

the human depravity, it is difficult to assume and be optimistic about the
developments in this area. Commercial gestational surrogacy is one area
which raises deep ethical questions. Simply because science can pursue a
particular mode of medical or reproductive procedure does not mandate
that it should be done.
The whole concept of gestational surrogacy is
fraught with so many concerns, and therefore it is will be wise if we do not

opt for it.
NEGLECTING HUMAN RIGHTS IN SURROGACY
Internationally, the diverse views at the regulatory level have fuelled the
growing global market for surrogacy which the third party intermediaries
and the some of the high class people exploit. It has become a pervasive
phenomenon internationally in which the subordinate status of a woman
and the level of income increase the exposure of these women to high
level of exploitation and physical harms. Surrogacy is treated as a
miraculous gift of life by some while they tend to ignore the real harm or
exploitation associated with it. For every surrogacy made possible, there is
a woman who has sacrificed her parentage, her eggs or uterus or both.
Allowing commercial surrogacy will showcase the social and economic

susceptibility of the weaker masses but this is not the main issue why
surrogacy should be held illegal, it is rather the use of a womans bodies
or to better put in other words reproductive organs for someone else.
The right to body integrity and fundamental human rights should always
be considered before the right of the intended parent. Children always
have the right to have their own parents but no such right exists for the
25 | P a g e
parents. The whole liberal market of surrogacy should be relooked into as

children are not like the commodities of the market which the intended
parent can buy. There is no doubt that the fundamental rights of an
individual are dismantled in favour of the desire of some rich individuals to
become parents. Surrogate motherhood should be prohibited from the
human rights perspective. From feminist point of view, right to body
integrity is one such right which cannot and should not be negotiated
with.
Given all these risks, it is scandalous, not to mention grossly unethical,

that women contemplating selling or renting their eggs or uteri,
respectively, are not provided with relevant information before they give
their consent. They are not told that no long-term studies have been
conducted on the health risks involved. Many, if not most, are not aware
that there is virtually no regulation of egg "donation" or surrogacy in the
United States; no national registry to provide a centralized repository for
records, patient follow-up and long term studies; that the commercial
fertility industry has every reason to minimize the health and economic
risks given the enormous profits generated. In fact, as one gazes out
across this landscape of third party reproduction, the contours of both a
national and international disgrace and human rights violation are
unavoidably clear.
Surrogacy is regarded as stark manifestation of commoditization of

womens bodies. Advertising about surrogate services, recruitment of
surrogates and coming up of big agencies is now a common feature of the
surrogacy industry. The commercialised has raised a lot of potential of
black market and baby selling, turning the women into baby producers.
Surrogacy degrades a womens body to service and the intended child to

a product. Like other commercial transaction, the certain conditions are
already laid down before making the purchase.
For examples, the
surrogacy agencies in India lay down certain guidelines like the surrogate
26 | P a g e
should be married, medically fit, and the surrogate should be ready to

give their parental rights when the baby is born. The agency helps the
surrogate and the intended parent to form a contract.
The rights of the intended child are never considered in case of surrogacy.
The rights of parenthood are transferred to the intended parent because
of whom the child cannot claim to its gestational carrier. It is assumed that
in surrogacy arrangements there is an equal exchange. But in reality, the
parties to surrogacy would not exist if the parties were equal. Surrogacy is
a biased procedure which favours only the financially secure. The freedom
of a surrogate is an imaginary concept.
As in India, where the surrogates are kept separately from the husbands
and the other family members, imprisoned in the homes or clinics
specially made for them, where they are kept in a hostile manner and they
have to follow the order from their overseers.
The high rate of multiple surrogacy and infection due to IVF has put both
the surrogates and the babies at a high threat for complications. If any
problem arises the well-being of the child is given paramount importance
over the heath of the surrogate. Surrogate mother are not taken care after
the birth of the child and left at their won.
An
international
rules
and
regulation
addressing
the reproductive
exploitation is the urgent need. The practices of sale of a womans

reproductive part infringe upon the basic human rights from an
international perspective and also violate the health and medical
standards on an international level. We should recognize trafficking and
the trade in reproductive organs as a unique kind of human exploitation.
From time immemorial womens human rights have been abused and
ignored with impunity. As the medical field is developing facilitating the
27 | P a g e
commoditization of reproduction the door to manipulation of womens

humanity is raising. If the commissioning parents circumstances change
during pregnancy or the children are born with heath problems, then a lot
of possibility is that the infant may be left to the surrogate, deserted, or
place in an orphanage. Because of this, universal legal agreements
discussing about surrogacy should protect the basic rights of the women
involved.
These agreements should consider the vulnerable position of
women.
They should make it appoint that women are protected from
discrimination, and have access to an adequate medical care.
SURROGACY
AND
THE
RIGHTS
OF
HANDICAPPED
INTENDED
CHILDREN
Recently a British surrogate mother said that she will raise her disabled
girl as her own after the commissioning parents said they didnt want a
dribbling cabbage as their child. In another case the surrogate mother was
informed by the commissioning parents that they will abandon one of the
twins born because the baby was born with Congenital Myotonic
Dystrophy and the surrogate mother was paid 12,000 in expenses to
give birth to the twins.24 These stories show a remarkable similarity to the
famous case of baby gammy who was born with Down syndrome to a Thai
surrogate mother who was left behind by the Australian commissioning
parents because he was mentally challenged.
Leading pro-life bioethicist Wesley Smith responded to the situation-Why

should we be surprised? Surrogacy and IVF are increasingly not about
having a baby to love unconditionally, but having a baby the parents think
24 Parents Abandon Mentally Disabled Baby, Tell Surrogate Mom: We Dont

Want a Dribbling Cabbage Lifenews, accessed October 15, 2015,
http://www.lifenews.com/2014/08/26/parents-abandon-mentally-disabled-babytell-surrogate-mom-we-dont-want-a-dribbling-cabbage/
28 | P a g e
worthy of love, he said. I hope the surrogate loves the child for life. But
the biological parents should pay support!25
These disturbing cases echo the need for a better regulatory framework at
an international level for the protection of handicapped children born to
surrogate mothers. The surrogacy contracts should also discuss at par the
possibilities and the outcomes of such complications. These precautions
will not only protect the rights of the child but also protect the surrogate
from being left out by the intended parents if the child born is
handicapped.
3. SURROGACY LEGISLATION IN INDIA
In 1984 the world saw the first successful birth through gestational
surrogacy. Ten years later, in Chennai, this happened for the first time in
India. Three years after that, in 1997, an Indian acted as a gestational
carrier, and got paid for it, in order to obtain medical treatment for her
paralyzed husband.26 Since 2002, Commercial surrogacy has been legal in
India. India is emerging as a world leader in international surrogacy. Indian
surrogates have quite been popular with the couples in the industrialised
nations due to the low cost of surrogacy in India. The number of births
through surrogacy has doubles recently as India is rapidly becoming the
hub for commercial surrogacy for fertility tourists.
25 Parents Abandon Mentally Disabled Baby, Tell Surrogate Mom: We Dont
Want a Dribbling Cabbage Lifenews, accessed October 15, 2015,
http://www.lifenews.com/2014/08/26/parents-abandon-mentally-disabled-babytell-surrogate-mom-we-dont-want-a-dribbling-cabbage/
26 Surrogate Motherhood Ethical or Commercial, Centre for Social Research (CSR), accessed
October 15, 2015, http://www.womenleadership.in/Csr/SurrogacyReport.pdf.
29 | P a g e
Commercial surrogacy is highly unregulated as there is not legislation

controlling surrogacy. To address the complexities of the surrogacy
arrangements, the government of India in 2005, has taken steps for
implementation
of
guidelines
for
Accreditation,
Supervision,
and
Regulation of Assisted Reproductive Technology (ART) clinics and these

were issued by ICMR. However, these guidelines are not enforced legally
because of which the foreigners can take advantage of the lack of
regulations. Though there is no specific legislation, the Ministry of Health
and Family Welfare has come up with a draft bill to regulate surrogacy in
India after the case of Baby Manjhi.
It
not
only
addressed
commercial
surrogacy
but
also
the
other
reproductive technologies. This means that there are no stipulations as to

what
will
happen
if
the
contracts
are
breached.
The
surrogacy
arrangements are made through contracts between the two parties. But it
is not clear whether the contracts are enforceable or not. As under section
23 of the Indian Contract Act, 1872 the whole arrangement of surrogacy
can be declared void because it is immoral and against the public policy.
Indias health minister Anbumani Ramadoss stated that, In light of the

recent controversy (involving a Japanese couple and an Indian surrogate
mother), I think its time we had a law on surrogacy. Its become more
than sporadic and is lending itself to commercial exploitation like the
kidney (transplant).27 These laws will help to deal with the issues of the
black market and the bidding war for surrogates. Ramadoss further stated,
The surrogacy laws will give confidence to those who come to India for
fertility treatment that they are well within the laws of the country and at
the same time protect the rights of the surrogate mother and baby. 28
However, till now there still is no law which extends towards the rights of
the surrogate mother or the commissioning parents expressly.
27 Draft regulation on surrogacy in two months for public debate, livemint, accessed October 15,
2015, http://www.livemint.com/Politics/n2WUYFlqw5pfbEQOJHVjWK/Draft-regulation-onsurrogacy-in-two-months-for-public-debat.html.
30 | P a g e
Under the Indian Contract Act, 1872 a contract can be treated as unlawful
if it involves injury to a person or if the court decides it to be immoral or
against the public policy. Surrogacy and adoption is often equated under
the Hindu Adoption and Maintenance Act, 1956. It states that no payment
should be made even for the expenses incurred due to pregnancy. In
Short, it favours only altruistic surrogacy. But the scenario in India is
completely different.
The Law commission of India submitted its 228 th report on ART procedures
which discusses in depth the importance, steps to regulate the surrogacy
arrangements and need to have legislation for surrogacy. Some of the
important observation of the LCI was that the surrogacy arrangements
should always provide for financial support for the surrogate child in the
event of death of the commissioning parents or individual before the
delivery of the child, or divorce between the parties and the subsequent
willingness of none to take delivery of the child. It also suggested that one
of the intended parents should be the donor so that there is a bond and
affection with the child. And also the cases of various kind of child abuse
will also not be there. In case the intended parent is single, he or she
should be a donor. Legislation should always recognize the surrogate child
as the legitimate child of the commissioning parent without there being
any need for adoption or even declaration of guardian.
It goes further by stating that the birth certificate should only mention the
names of the commissioning parents and the rights of both the surrogate
and the donor should be protected. Sex selected surrogacy should be
prohibited. The medical Termination of Pregnancy Act, 1971 will regulate
the cases of abortions.
28 Transnational Commercial Gestational Surrogacy: Cultural Constructions of Motherhood and their Role in
the Development of National Indian Guidelines Arizona State University, accessed October 15, 2015,
31 | P a g e
The surrogacy arrangements revolve around three types of participantsthe commissioning parents, the surrogate and the intended child. During
the gestation period, the intended parents should bear the expenses of
the surrogate and give monetary relief to the surrogate. Foreign couples
have to nominate a local guardian who will take care of the surrogate
during the gestation period. ART banks, accredited by the government,
will maintain a database of prospective surrogates as well as storing
semen, eggs and the details of the donor. State Board will give
accreditation to ART Banks private and government. The board will have
registration authority which, in turn, will maintain a list of all the IVF
centres and monitor their functioning.
The ART bill is the first piece of legislation to deal with surrogacy practices
prevalent in India. Under the rules it is required that the prospective
surrogates are below the age of 45 and she should have 5 successful
births including her own children. It further permits gestational surrogacy
though it is restricted to when it is impossible for the genetic mother to
carry the baby. The Bill defends commercial surrogacy as a permissible
business but also goes ahead and suggests the need for labour rights
framework for protection from exploitation. It makes recommendations for
modifying proposed regulationsthese include recognizing minimum
standards of care and compensation for surrogates, limiting contractual
obligations enforceable against the surrogate, and requiring that neutral
intermediaries facilitate surrogacy arrangements.29
Also, ART in India is available to single individuals as well as married

couples. But the present regulations do not specify whether surrogacy is
permissible for homosexual couples or not. The provisions in the
regulations are unequivocal in stating that the legal parents of the child
will be the commissioning parent only.
29 Jennifer Rimm, Booming Baby Business: Regulating Commercial Surrogacy in India,
University of Pennsylvania Journal of International Law, accessed October 15, 2015,
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1837&context=jil.
32 | P a g e
The laws tend to promote the interest of the commissioning parents and
do not focus on the surrogate mother. Where the commissioning parent is
a foreigner, the rules are ambiguous about who the local guardian can be
and what will be their responsibilities.
4. A COMPARATIVE VIEW ON EXISTING REGULATIONS IN

INDIA, AUSTRALIA, USA AND UK
SURROGACY IN INDIA
The judiciary has recognized the reproductive rights of the humans as one
of the basic rights. In the case of B.K. Parthasarthi v Government of
Andhra Pradesh30, the High Court upheld the light of reproductive
autonomy of an individual as a facet of his right to privacy and agreed
30 2000 (1) ALD 199, 1999 (5) ALT 715
33 | P a g e
with the view of American courts particularly the US SC case of Jack T.

Skinner v State of Oklahoma31, where the court characterized the right to
reproduce as one of the basic civil rights. It is aptly pointed out in the
228th LCI Report that in Javed v State of Haryana,32 though the SC stated
that right to procreation is not a basic human right.
The Supreme Court of India, through the case of Manji Yamada Case 33,
held that commercial surrogacy was legal in India. The case involved a
child named baby Manjhi born to a surrogate mother. The child became
the focus of a legal and diplomatic tussle in India. Her genetic parents got
divorced before she was born and the genetic mother and father refused
to take the child. The baby was stuck in a legislative limbo for over a year
because the courts were unable to determine the parentage or nationality
of the child, both in Indian and Japanese law.
In this case, the court further stated that the petitioner has grievance in
relation to the orders of the Central government and remedy available in
law is actually invalid. The Commissions for Protection of Child Rights Act,
2005 enacted to protect the child rights and enforce speedy trails of
offences against children. In this case, if any action is required, it is to be
done by the commission. Chapter III, section 13 could be seen in this
regard. And eventually the child was passed on to Ikufumi Yamada who
was the childs grandmother.
Moreover, in the case of Jan Balaz vs. Union of India,34 the Gujarat High
Court dealt with one of the most vital query of all times, whether the child
31 316 US 535
32 (2003) 8 SCC 369
33 [2008] INSC 1656
34 L.P.A.. No. 2151 of 2009
34 | P a g e
born to the surrogate who was an Indian national and whose biological
father was a foreign national would be granted citizenship in India.
Everything went well with the surrogacy arrangement but the twins born
to the German couple were not given German citizenship until and unless
they were recognized as Indian citizens. For two years these children were
stateless and in 2009 the Supreme Court of India found a way out and
held that children born to gestational surrogates are Indian citizens and
hence can be given passport.
Thus, both cases demonstrate the need for stricter regulations of

commercial surrogacy from both a national and international perspective.
The Baby Manji case solidified Indias need to develop a comprehensive
national policy regarding commercial gestational surrogacy. The fact that
the struggle to determine Manjis nationality and parents remained in
question for over a year after the childs birth is unacceptable. The growth
of advanced reproductive technologies in India is surging far beyond what
Indias current legal system can handle. As the case of Baby Manji
demonstrates, the lack of regulations has raised issues for international
relations as well as for private surrogacy clinics. Indias public, led by a
dynamic NGO sector, is currently debating whether or not commercial
surrogacy should be legal at all in the subcontinent. The Balaz case
demonstrates the confusion transnational gestational surrogacy brings
about when it comes to defining the citizenship of a child. It additionally
brings to light the lack of communication between countries with different
perspectives on gestational surrogacy.
The Division Bench of the HC comprising of J. K.S. Radhkrishnan and A.S.

Dave, in this landmark judgement observed that a comprehensive law
defining the rights of the child born out the surrogacy agreements, rights
and responsibilities of a surrogate mother, egg donor, commissioning
parties, and the legal validity of the surrogacy agreement, relationship of
the parents and the child and the responsibilities of the infertility clinic
was also required.
35 | P a g e
Upholding the citizenship rights of the boys, the Court said: we, in the
present legal framework, have no other go but to hold that babies born in
India to gestational surrogate are citizens of this country and therefore
entitled to get the passport and therefore direct the passport authorities
to release the passports withdrawn from forthwith.35
The law commission of India specifically reviewed the Surrogacy Law

keeping in mind that India is an International Surrogacy destination. The
Report has come largely in support of the Surrogacy in India, highlighting
a proper way of operating surrogacy in Indian conditions, while strongly
recommending against Commercial Surrogacy.
In March, 2014 a proposal to revise the bill was made, and one of the most
crucial proposal made was the restriction of surrogacy to only infertile
Indian married couple.
Although the NRI and PIOs will be eligible for
availing the surrogacy services available in India but the foreigners who
are not married to Indian citizen will not be allowed to participate in any
type of surrogacy arrangements.
The advancement in the field of science has offered hopes to childless

people. The most appropriate method would be to create a mechanism to
judge the suitability of surrogates rather than to debarring all single and
foreign people. This would also not be in conflict with the existing legal
scenario in India
POSITION OF SURROGACY LAWS IN AUSTRALIA
35 Babies born to surrogate Indian mothers are Indians, rules court, Thaindian News, accessed
October 15, 2015, http://www.thaindian.com/newsportal/health1/babies-born-to-surrogate-indianmothers-are-indians-rules-court_100273942.html.
36 | P a g e
Surrogacy over the past few years has attracted significant media and
political attention in Australia. In all the states in Australia, commercial
surrogacy is a criminal offence, with some states having penalties up to
two or three years.
Moreover New South Wales, Queensland and the
Australian Capital Territory (ACT) have made it an offence for residents to

enter into international commercial surrogacy arrangements with potential
penalties extending to imprisonment for up to one year in Australian
Capital Territory, up to two years imprisonment in New South Wales and
up to three years imprisonment in Queensland.36
In 2004, the Australias capital was the first place to recognize altruistic
surrogacy as legal under the Parentage Act, 2004. The intended couples
can now adopt the child after the birth is registered to be born to the
natural mother. Most of the states in Australia have opted to use this
arrangement in order to safeguard the rights of the intended parents.
Now, the Assisted Reproductive Treatment Act, 2009 makes altruistic
surrogacy legal. But in 2009 after few changes were made under the
Surrogacy Act 2008 and the Family Relationships Act 1975 and this type of
surrogacy is now only legal for couples of the opposite sex and banned for
single people as well as same sex couples.
In 2010, Queensland passed a law to make only altruistic surrogacy legal,

under the Surrogacy Act 2010 No 2. In the same year New South Wales,
under the Surrogacy Act 2010 No 102 passed a law to make only altruistic
surrogacy legal and in 2013, Tasmania also passed a law to make only
altruistic surrogacy legal, under the Surrogacy Act and the Surrogacy
(Consequential Amendments) Act.37 So, it can be said that Australian legal
36 what are your thoughts on surrogate pregnancies? Toluna, accessed October 15, 2015,
https://au.toluna.com/opinions/1765439/What-are-your-thoughts-on-surrogate-pregnancies.
37 Regulating Surrogacy in Australia, Human Rights Law Centre, accessed October 20, 2015,
http://hrlc.org.au/regulating-surrogacy-in-australia/.
37 | P a g e
system generally permits only altruistic arrangements of surrogacy and it

prohibits commercial arrangements where the surrogate is compensated.
In New South Wales, Tasmania, Queensland and Victoria any person,

regardless of sex, relationship status or sexual orientation can be an
intended parent. In contrast, in the other States and the ACT only
heterosexual married or de facto couples, or single women, are eligible.
Tasmania, Victoria and Western Australia only allow surrogacy if the
surrogate has given birth to a child before, and in all States except the
ACT the surrogate must be at least 25.38
Most of the jurisdictions require medical need one of the reasons for
surrogacy but some allow it in case of social reasons also. Like New South
Wales, Queensland and Victoria allow surrogacy when a medical
complication is present. The Australian capital does not require there to be
a medical or social need for the surrogacy and Western Australia
specifically excludes age as a suitable medical reason.39
Entering into commercial surrogacy arrangement overseas in New South

Wales, Queensland and ACT is an offence. It means that people involved in
such an arrangement would be guilty of an offence punishable with fine or
imprisonment or both. In the rest of the country, entering into a
commercial set up for surrogacy overseas is not a crime but the intended
parents may have issues in obtaining parentage order as commercial
surrogacy is prohibited. The procedure of transferring parentage is
different throughout the country particularly when the international
surrogacy arrangements are looked into.
38 Ibid.
39 Ibid.
38 | P a g e
A surrogacy arrangement is generally not enforceable, except to the

extent that it provides for the payment of the surrogates expenses
related to the pregnancy. This means that a surrogate who refuses to hand
over the baby cannot be forced to under the agreement. If she refuses to
do so, the only remedy for the intended parent(s) is to apply to the Family
Court for a parenting order that the child live with them.40
These surrogacy arrangements raise a lot of concern from a human rights

aspect. Under the convention the children have to enjoy certain rights
mentioned under the treaty. Under article 3 the primary concern should
always be for the best interest of the child. Other rights are specified
under article 7, 8 and 9 which discuss about the registration of birth and
nationality,
to preserve the identity, name, family relations. Under the
convention, the paramount consideration in relation to surrogacy should

always be in the best interest of the child.
Australia is also a party to the ICCPR. Under this the civil and political
rights are mentioned. These basically include the protection of the family
as natural and fundamental group as mentioned under article 23 and
under section 24, the right of every child be registered right after birth
and have a name and nationality.
Some of the few complexities in the practice of surrogacy in Australia are

the question of who is the childs parents by whom he or she should be
taken care of and whether the surrogate mother should be regarded as a
parent until the parentage order is passed by the court. Further, the
surrogacy arrangement sometimes hides the identity of the mother but
these add up to the confusion regarding the childs own identity.
40 Regulating Surrogacy in Australia, Human Rights Law Centre, accessed October 20, 2015,
http://hrlc.org.au/regulating-surrogacy-in-australia/.
39 | P a g e
In conclusion, it can be seen that Australia has a very strict approach

towards the implementation of surrogacy which prevents the exploitation
of women and provide for a better development of the field of surrogacy.
India should try to adopt this concept instead of encouraging commercial
surrogacy which only adds up to the exploitation of poor needy women.
Indian government should make attempts for effective execution of the
best available practices seen in the other jurisdictions by excluding the
drawbacks which are seen in there.
UNITED STATES PERSPECTIVE ON SURROGACY
United States has a longstanding tradition of giving its citizen procreative

liberty and each state is solely responsible for protecting this liberty
granted to the citizens. There is no uniform position on surrogacy laws in
USA. Instead, it is governed by a patchwork of different and disparate
state laws. Some of the state laws have attempted to put an outright ban
on surrogacy by imposing civil and criminal penalties. Some of them have
tried to maintain a status quo by refusing to enforce surrogacy contracts
and grant parental rights, while the rest have allowed state approved
surrogacy. This allows the state to channel the whole surrogacy circuit and
help encourage voluntary compliance with the regulations.
The legal scenario in United States has a vast array of surrogacy laws and
it varies from state to state. Some states have designed surrogacy
statutes to eliminate all forms of surrogacy and followed the common law
regime, while others have enacted statutes to severely limit the terms and
enforcement of surrogacy contracts and expressly discussing about it.
Many states have not yet enacted any legislation addressing the issues of
surrogacy. This disparate treatment of surrogacy across the States has led
to differing treatment of surrogate agreements in every state as the
demand of surrogates in USA is high as compared to the supply. Some of
the states in America facilitate surrogacy contracts while others refuse to
enforce it, and some also penalize commercial surrogacy. The states which
40 | P a g e
allow surrogacy have enforced both altruistic as well as commercial

surrogacy and have an easy way for recognition of intended parents as
the childs legal parent. They also have support for married heterosexual
couples which is absent in many countries. But generally, the concept of
gestational surrogacy is a well accepted phenomenon. Some of the states
where surrogacy is allowed are California, Arkansas, Maryland and Illinois.
In Arizona, Indiana and North Dakota all the surrogacy contracts are
treated as void and contrary to the public policy, while New York along
with Kentucky, Washington has declared commercial surrogacy are void
and unenforceable. Michigan is one of the first states to actually
criminalize
surrogacy
contracts
that
involve
compensation
to
the
surrogates but it is limited only to gestational surrogacy.
The lack of national laws on surrogacy in the United States of America is

cast against a backdrop of rising usage. The American Society for
Reproductive Medicine reported a 30% increase in surrogate births
between the period of 2004 and 2006, for a total of 1,059 live births in
2006. Since most of the surrogate births go unreported the actual number
might be high.
New Jersey became the first state to address surrogacy in the widely
publicized case of In re Baby M. The Supreme Court ruled that the
surrogate mother cannot be paid and the contract is invalid and against
the public policy. The court recognized the "depth of the yearning of
infertile couples to have their own children," but found that "the payment
of money to a 'surrogate' mother was illegal, perhaps criminal, and
potentially degrading to women." The court went on to say that "it is clear
that a contractual agreement to abandon one's parental rights, or not to
contest a termination action, will not be enforced in our courts." The court
further assured that there was "no offense to our present laws where a
woman willingly and without payment agrees to act as a 'surrogate'
mother, provided that she is not subject to a binding agreement to
surrender her child." The court's ruling "does not preclude the Legislature
41 | P a g e
from altering the current statutory scheme, within constitutional limits, so

as to permit surrogacy contracts."41
In Doe v. Attorney General,42 the Court held that any surrogate parentage
contract which involves the relinquishment of a females parental rights to
the child just after the conception will be void and unenforceable. In
Surrogate Parenting Associates, Inc. v. Armstrong, the Supreme Court held
that the involvement of a corporation in the whole surrogate parenting
procedure
did
not
actually
contravene
the
statutory
prohibitions.
Subsequently, a statute was passed declaring the contracts to be valid as

long as the surrogate is not paid.
The most favourable forum for surrogacy is California in USA. More than
half of the country's 35-40 surrogate agencies are located in California
and a majority of the estimated 1000 surrogate births each year occur in
this state. The state legislature has failed to establish laws governing
surrogacy, but the courts have laid down guidelines through various case
laws. The first case to uphold a surrogacy contract was Johnson v. Calver.43
The courts held that in case of gestational surrogacy the surrogates dont
have any right to the child. Under the law in California, the one who
intends to raise the child will be the natural mother and invalidating a
surrogacy contract will infringe upon the personal choice of an individual.
Previously, the courts have also upheld one traditional surrogacy
agreement in In re Matthew.44 The courts stated that the best interest of
the child lies with the contracting parents. The courts in In re Moschetta45
further elaborated on the function of surrogacy contract which is to serve
41 In the Matter of Baby M (537 A.2d 1227) 1988, lawandbioethics, accessed October 15, 2015,
http://www.lawandbioethics.com/demo/Main/Media/Resources/BabyM.htm.
42 307 N.W.2d 438
43 851 P.2d 776 (1993).
44 284 Cal. Rptr. 18 (Ct. App. 1991)
42 | P a g e
as a vessel in which the intention of the participants is well defined. In

many cases the courts have deemed that contracting parents as the legal
parents because the child would never have been born if the contracting
parents had not "approved to have a fertilized egg implantation in a
surrogate."
Issuance of a U.S. citizenship at birth to a child born abroad is governed

by Immigration and Nationality Act (INA) Sections 301 and/or 309. The
determination of citizenship to children born overseas to a U.S. parent falls
within jurisdiction of the U.S. Department of State, which requires a U.S.
citizen to have a biological connection to a child in order to transmit U.S.
citizenship to such child.46
In summary, the child should be biologically related to the US citizen

parent, as the child will not acquire citizenship of US automatically at
birth. If the child is related to the father only, then it will be governed
under Immigration and Nationality Act, Section 309(a), and additional
requirements of that section will have to be followed otherwise, under
section 301 requirements would apply, including certain residence
requirements also.
SURROGACY LAWS IN UK
The Brazier Report has approximately estimated that between 100 and
180 surrogacy arrangements are made in the UK every year. About, half of
the surrogate mothers are initially unknown to the intended couple, while
family friends and relatives are the most common known surrogates.
Precisely, surrogacy is not limited to only cases where the woman is
45 30 Cal. Rptr. 2d. 893 (Ct. App. 1994).
46 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT,
U.S. Department of State Foreign Affairs Manual Volume 7 Consular Affairs, accessed October 15,
2015, http://www.state.gov/documents/organization/86757.pdf.
43 | P a g e
robbed of the chance to have her own child; instead, it can be used by gay
couples, single individuals who want to choose surrogacy due to the
convenience of surrogacy.
The Warnock committee report established by the government in 1982 for

the research on assisted conception services and provide for suggestions
for the regulations. Despite the lack of knowledge, the committee was
concerned
about commercial
surrogacy. The
committees
take
on
surrogacy led to the complete ban on surrogacy. But some of the

members of the committee completely disagreed with the concept and
believed that surrogacy should be allowed but only under the stringent
conditions.
The Human Fertilisation and Embryology Act and the Human Fertilisation
and Embryology Authority are the two main bodies which regulate
surrogacy in UK. Since the inception of the act, the intending parents have
been able to acquire legal parenthood rights by the parental order. Certain
criterias are given for parental order in section 54 of the Act. The order
will be granted only when the criteria set out is fulfilled.
Under the Surrogacy Arrangements Act 1985, commercial surrogacy

arrangements are illegal and these are strictly prohibited and under
section 30 of the Human Fertilisation and Embryology Act 1990, it is illegal
to pay more than the expenses incurred during the whole procedure of
surrogacy.
The UK's approach makes it very difficult for the intending parents to
enter into commercial surrogacy arrangements. For example, it is unlawful
for intending parents to advertise for a surrogate, or for a woman to
advertise
willingness
to
become
surrogate.47
The
Surrogacy
47 International Surrogacy Laws, Ukrainian Family Law, accessed October 15, 2015,
http://www.familylaw.com.ua/index.php?option=com_content&view=article&id=69&Itemid=99&lang=en.
44 | P a g e
Arrangements Act 1985 section 2(1) forbids the third party from
discussing about the negotiations, or compiling any data with a
perspective of using that information, or negotiating or discussing
surrogacy arrangements.
5. NEED FOR CHANGE
In the coming years the experts in the field of medical law see a rise in the
demand for commercial surrogacy. According to one of the most
prominent fertility specialist Dr. Indira Hinduja,48 who was behind the
success of the first test tube baby, formerly people were ashamed but
now they have started accepting this new concept and become broadminded.
If this practice of commercial surrogacy keeps expanding many fear that it

could evolve from a medical necessity into convenience for the rich
masses. Some of the Indian clinics have even noticed that the incidence of
surrogacy has risen in the past few decades, with the demand driven by
the requests of women who delayed starting their families to the late
thirties.
48 Commercial Surrogacy In India: Exploitation or Mutual Assistance?, fertilitymatter.ca, accessed

October 15, 2015, http://iaac.ca/en/commercial-surrogacy-in-india-exploitation-or-mutual-assistance4.
45 | P a g e
Although commercial surrogacy for the infertile couple seems to be a

practical solution it has a lot of social implications. Unsurprisingly, in India
the unregulated regulations have lead to an increase in manipulation by
the middlemen who are forcing poor and uneducated women from the
villages into surrogacy. This area is still considered a grey area from an
ethical point of view. One of the most obvious ethical concerns is in
relation to motherhood. Indian women may have agreed to sell out their
wombs, but most of them confine themselves to their homes or clinics
because of the stigma attached to the idea of carrying someone elses
child. A surrogate mother stated that, when the child is born we will tell
friends that we have given it away to someone or that I had a miscarriage.
It is difficult to tell the truth because people will think that I had a relation
with someone.49 One of the many risks mentioned, is the risk attached to
the offsprings health also. In order to increase the chance of pregnancy,
the doctors use several embryos at the same time, this in turn raise the
risk of multiple pregnancies.
From an emotional point of view, childbearing is not like any other activity.
There are a lot of possibilities that the surrogate develops an emotional
attachment with the child and that makes it difficult to give away the
child.
The government should take serious actions and think about enacting a
law to regulate legislations dealing with surrogacy and related ARTs so as
to protect the weaker masses and guide the intended parents. The
legislation is devoid of a foolproof framework, and therefore the
surrogates are misled and exploited. What is needed is a balance and
check methodology so as to check the criminalization of all form of
commercial surrogacy.
49 Ibid.
46 | P a g e
The technological progress and the rapid social change have heralded, not
certainty but a profound moral unease. Surrogacy is a problem for many
of societies because it forces the people to think anew about their moral
upbringing and values. Friedman and Squire (1998) identify surrogacy as
the contemporary issue that encapsulates many of the moral ambiguities
of our age.50 Surrogacy showcases the shifting patterns of parenthood,
gender relations and family when it introduces a third or fourth participant
into the surrogacy arrangement.
Surrogacy gives a sharp relief to the anxieties of the commissioning

parent(s) about the future of their families. It threatens accepted views
what a family is, of gender-appropriate parental behaviour, and our ideas
of what is natural in the realm of reproductive behaviour. 51
There is a
general awkwardness about what is seen by many as a dangerous

tampering with the natural order of things. There are a lot of fears that the
surrogates might be exploited and the children might be psychologically
damaged.
6. CONCLUSION AND SUGGESTIONS
India lacks a uniform legislation to deal with the pre-requisites for

commercial surrogacy. The growing demand for surrogacy has lead to
many moral and legal issues. Because of the moral and ethical ambiguity,
many countries, including Saudi Arabia, China, Denmark, Mexico and
some states of US have banned surrogacy altogether. Some of the
countries have even imposed partial ban for example in Australia, Hong
50 RACHEL COOK, SHELLEY DAY SCLATER AND FELICITY KAGANAS, Psychological
aspects of surrogacy, Brunel University, accessed October 15, 2015,
http://bura.brunel.ac.uk/bitstream/2438/5896/2/Fulltext.pdf.
51 Ibid.
47 | P a g e
Kong, South Africa and UK. Some of the countries like, Canada and Greece
permit gestational surrogacy which is subject to regulations. Then there
are those countries like Belgium and Finland who do not have any
regulations to deal with surrogacy.
Apart from the recent spurt of surrogacy in India, commercial surrogacy is

most prevalent in the state of California and in Israel, where surrogacy is
tightly controlled by the state and restricted to Jewish citizens. The Indian
structure is closer to the liberal market model of surrogacy In California,
where surrogacy births are primarily managed by private, commercial
agencies that screen, match and regulate agreements according to their
own criteria.52
Medical tourism is on a rise for the past few decades. There are many
factors because of which India is regarded as the destination country for
medical tourism. Some of them are no state interference with the working
of the Indian clinics and cheap cost.
In order to attract commissioning parents from foreign countries, the

surrogacy clinic market surrogacy through both print and electronic
media. Some of them even offer package deals. For example one website
states See Taj Mahal by the moonlight while your embryo grows in a Petridish.53 These package deals are drawn in complete absence of
regulations.
After analyzing the social and legal dimensions of surrogacy it can be

concluded that the paramount consideration should be given to the
52 Transnational commercial surrogacy in India, Phil Papers, accessed October

15, 2015, http://philpapers.org/archive/PANTCS.pdf.
53 Amrita Pande, Wombs in Labor: Transnational Commercial Surrogacy in India
(Columbia University Press. 2014),11.
48 | P a g e
welfare of the baby. Commercial surrogacy should not be legalised fully

and only the right of parenthood should be transferred.
Some of the legal concern one should keep in mind are, firstly the legality
of the surrogacy contracts should be addressed. Secondly, the legislation
should provide clarity regarding the legal mother, surrogate mother and
the intending mother. Thirdly the legitimacy of the child should also be
looked into. Fourthly, the rights of a surrogate mother to terminate the
child in case of medical emergencies or in case the commissioning
parents back out should be discussed. And lastly, financial security should
be provided after childbirth to protect the surrogate from any form of
secondary infections.
Women and children are viewed as commodities. Both the commissioning

parent and the surrogate mother have a claim that to being the mother of
the child and there is no way to determine which one should be
considered as a mother as one has given her ovum and the other has
rented her womb for it. If neither claim can be dismissed, then surrogacy
by its very nature must involve three people and so either the notion of an
exclusive bond between a husband and wife is destroyed or if this is to be
preserved, then the surrogate has to be treated as a commodity. 54 A
complete ban is not a option and may be a little irrational but
commercialization of surrogacy is a social obstruction and legal challenge
and ignominy in the Indian society.
Some of the other concerns related to surrogacy can be the impact on

surrogate mothers partner, parents and the children she already has. The
surrogate mother should inform her children so that her absence does not
cause them distress. One of the implications of having a surrogacy
arrangement in India is that the surrogate mother will be ostracised or
54 Bill Seeks to regulate wombs for rent, Times of India, accessed October 15,
2015, http://timesofindia.indiatimes.com/india/Bill-seeks-to-regulate-wombs-forrent/articleshow/7367486.cms.
49 | P a g e
shunned by the society as India is a conservative society which has not

openly accepted surrogacy regardless of the fact that it is number one
option for surrogacy market in the world.
In addition to these risks, there is a growing concern that other risks to

children born out of ARTS may occur. The main point here is that in
gestational surrogacy the contractual arrangement makes these problems
more acute as it involves response to these problems cannot be predicted
beforehand. Yet these matters have the potential to undermine the whole
contract in seriously damaging ways, in the gestational surrogacy
agreement, the increased chance of multiple births could lead to
contractual disputes if the intention of the commissioning parent was only
to have a single child.
Generally, it can be suggested that commercial surrogacy should be

banned with only altruistic surrogacy being be allowed, the rights of the
child, the mother should be determined, the names of the surrogate
mother as well as the commissioning parent should be written, post natal
care of the surrogate should be done. Wider campaign for teaching the
public that surrogacy is not a matter of shame for those who perform the
role of the surrogate mother, provided they are not lured into this because
of the money they will get. In relation to this, various NGOs can take a
leading role. The government should take initiative to take sufficient steps
so that the people can at least see the positive side of legalization of
surrogacy and change their conservative overview of the concept.
Implementation of strict rules incorporating the views of the physicians,
sociologists, and psychologist should also be considered.
7. BIBLIOGRAPHY
50 | P a g e
Case Laws:
B.K. Parthasarthi v Government of Andhra Pradesh 2000 (1) ALD 199,
1999 (5) ALT 715.

In re Moschetta 30 Cal. Rptr. 2d. 893 (Ct. App. 1994).
Jack T. Skinner v State of Oklahoma 316 US 535.
Javed v State of Haryana (2003) 8 SCC 369.
Johnson v Calver 284 Cal. Rptr. 18 (Ct. App. 1992).
Manji Yamada v Union of India [2008] INSC 1656.
Books:
Miller, J. 1996. Out Family Values, in Voices: Essays on Canadian Families, M. Lynn
(ed.), Toronto: Nelson Canada, p. 131-160.
Pretorius, D. 1994. Surrogate Motherhood: A Worldwide View of the Issues,
Springfield, IL: Charles C. Thomas.
Rae, S.B. 1994. The Ethics of Commercial Surrogate Motherhood: Brave New
Families? Westport, CT: Praeger.
Saxena, P.; Mishra, A.; Malik, S.; Surrogacy: Ethical and Legal Issues; Indian Journal
of Community Medicine, Vol. 37, Issue 4, October 2012
I. Glenn Cohen, Editor; The Globalization of Health Care: Legal and Ethical
Issues; Oxford University Press, 2013, pps. 133-134
Websites:
Academia. Legal and Ethical issues of commercial surrogacy in
India: An overview. Accessed October 10, 2015.
https://www.academia.edu/1955503/LEGAL_AND_ETHICAL_ISSUES_O
F_COMMERCIAL_SURROGACY_IN_INDIA_AN_OVERVIEW.
Arizona State University. Transnational Commercial Gestational
Surrogacy: Cultural Constructions of Motherhood and their Role in
the Development of National Indian Guidelines. Accessed October
15, 2015.
http://repository.asu.edu/attachments/56963/content/Moorthy_asu_0
010N_10820.pdf.
Bindel, Julie. Commercial surrogacy is a rigged market in wombs for
rent. the guardian. Accessed October 15, 2015.
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http://www.theguardian.com/commentisfree/2015/feb/20/commercia
l-surrogacy-wombs-rent-same-sex-pregnancy.
Centre for Social Research (CSR), Surrogate Motherhood Ethical or
Commercial, accessed October 15, 2015,
http://www.womenleadership.in/Csr/SurrogacyReport.pdf.
Cook, Rachel Shelley Day Sclater And Felicity Kaganas,
Psychological aspects of surrogacy, Brunel University, accessed
October 15, 2015,
http://bura.brunel.ac.uk/bitstream/2438/5896/2/Fulltext.pdf.
Essay UK, Phenomenon of Fertility Tourism in India, accessed
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fertilitymatter.ca, Commercial Surrogacy In India: Exploitation or
Mutual Assistance?, accessed October 15, 2015,
http://iaac.ca/en/commercial-surrogacy-in-india-exploitation-ormutual-assistance-4.
Garrity, Amy A Comparative Analysis of Surrogacy Law in the
United States and Great Britain - A Proposed Model Statute for
Louisiana,Louisiana Law Review, accessed October 2, 2015,
http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?
article=5826&context=lalrev.
Human Rights Law Centre, Regulating Surrogacy in Australia,
accessed October 20, 2015, http://hrlc.org.au/regulating-surrogacyin-australia/.
Information on Surrogacy, History of Surrogacy - Surrogacy Stories
throughout Time, http://www.information-on-surrogacy.com/historyof-surrogacy.html.
Jan Balaz vs. Union of India, L.P.A.. No. 2151 of 2009
lawandbioethics, In the Matter of Baby M (537 A.2d 1227) 1988,
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NUJS Working Paper Series. Analysing the status of the surrogate

mother under The Assisted Reproductive Technologies (Regulation)
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Pande, Amrita. Wombs in Labor: Transnational Commercial
Surrogacy in India (Columbia University Press. 2014), 11.
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U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT.
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53 | P a g e
Ukrainian Family Law. International Surrogacy Laws. Accessed

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option=com_content&view=article&id=69&Itemid=99&lang=en.
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54 | P a g e

11B099-Commercial Gestational Surrogacy & Fertility Tourism

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COMMERCIAL GESTATIONAL SURROGACY

AND FERTILTY TOURISM IN INDIA

MEDICAL LAW AND ETHICS

OBJECT AND SCOPE OF THE STUDY

The object of this paper is based exclusively on literature review and it

surrogacy and fertility tourism.

Further, the existing guidelines and regulations will be analysed in order to

This study focuses on fertility tourism in India and proposes to examine

A comparative analysis of the laws regulating the use of ART in India,

RATIONALE OF THE STUDY

As an outcome of the current technological advancements, the rate of

SIGNIFICANCE AND UTILITY OF THE STUDY

The use of cases of surrogacy in India, Australia, USA and UK as examples

industry. India with time has emerged as a world leader in surrogacy

The research methodology which the researcher proposes in preparing

motherhood. The theory of commercial gestational surrogacy is culturally

What is surrogacy and what are the different types of surrogacy?

Whether there is a need for a comprehensive and specific legislation

Is surrogacy a commercialized sector or not?

Is commercial gestational surrogacy in India ethical and does it

The current study is limited to legislative framework of India, Australia,

deal with the in depth issues of motherhood with references to

It will discuss the definition of surrogacy as a method of substitution of

2. Commercial Gestational Surrogacy and Ethical issues

The different guidelines will be looked into including ICMR guidelines

4. A comparative view on existing regulations in India, Australia,

It discusses in brief the Australian legislatures stance on commercial

5. Need for change

The current legal scenario may lead to immoral practices, legal

6. Conclusion and Suggestions.

The dissertation would be concluded by briefly summarizing the

Surrogacy was defined by the Warnock Committee as the practice

sometimes simply involves insemination of the commissioning fathers

Commercial surrogacy is the process in which an individual or couple pays

In 1976, the first documented surrogate pregnancy was recorded. From

GESTATIONAL SURROGACY AND FERTILITY TOURISM

Industry estimates the practice will generate $2.3bn a year by 2012. 4

The word surrogacy has its origin in Latin surrogatus meaning a

According to the Artificial Reproductive Technique (ART) Guidelines,

treatments to overcome infertility. In this arrangement the woman who

Another type of surrogacy is called the gestational surrogacy; it can take

This whole procedure of surrogacy can be either commercial or altruistic.

These risks can be

addressed through legislative reforms and many of the concerns can be

technologies abroad, helps to make local restrictions on reproductive

In 2005, national guidelines were drafted by Indian Council of Medical

medical travel is marked by its shifting toward a more institutionalized

Commercial surrogacy is defined as a contractual relationship wherein a

THE COMMERCIALIZED MARKET OF SURROGACY

Recently the case of Australian couple rejecting a surrogates baby with

If the income received by a surrogate through surrogacy arrangement is

In India there are thousands of poor women with few economic

goes to the surrogate mother, while in India most of the money is

The medical industry is open to the business of babies and even

While most of the

clinics advertise and some even go a step further by inviting women

2. COMMERCIAL GESTATIONAL SURROGACY AND ETHICAL

Commercial surrogacy breeds exploitation, abuse and misery. And in the

13 Commercial Surrogacy In India: Exploitation or Mutual Assistance?, fertilitymatter.ca, accessed

Cross border reproductive care, like medical tourism, is where potential

Objectification deals with the treating of a particular being as if it were

Radical feminist writers argue that reproductive technologies have a

The minimal regulatory framework in India has raised quite a number of