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DR. RAM MANOHAR LOHIYA NATIONAL


LAW UNIVERSITY

Surrogacy laws in India, Rights of the Surrogate mother and the


child

Legal Research and Writing


(Rough Draft And Final Draft)

SUBMITTED TO SUBMITTED BY

Ms. Shakuntala Sangam Ashutosh Verma

Asst. Professor (law) ROLL NO. 40

B.A. LL.B (HONS.)

VII Sem.
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ROUGH DRAFT
Aim
The concept of surrogacy, the possible motivations behind its practice, and the variety of forms it
may take, is described by Gillian Douglas: Surrogacy has received more adverse criticism than
any of the other new reproductive techniques. The project aims at throwing light on the position
of surrogacy laws in India and abroad, and analyzing the merits of the laws made in this regard.

Hypothesis

Surrogacy is both lawful and moral, withstanding any criticism that has been raised by calling it a child
selling business. The legal provisions that have been made support the lawful nature of this alternative
child birth method and gives it a moral stand in the society as it provides a new hope to people who want
to have children and need an additional helping hand to fulfill their desire.

Research question

Are surrogacy contracts enforceable? Are they illegal? Is payment of a fee in violation of baby-
selling statutes, i.e., is it payment for services rendered or for the child? Is the contract counter to
public policy? What happens if the surrogate decides to keep the child?

Research Methodology

In the following project descriptive and analytical methods of study are used.
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Contents
What is Surrogacy??..............................................................................4
legal complexities involved with surrogacy:-.........................................................................................6
Condition in other countries:-..................................................................................................................7

Surrogacy Laws in India........................................................................8


Reproductive technology clinics as well as rights and obligations of parties to a surrogacy....................8
Introduction:........................................................................................................................................8
The draft assisted reproductive technology (regulation) bill and rules 2008:.......................................9
Conclusion and recommendation.......................................................................................................11
The Assisted Reproductive Technologies (Regulation) Bill 2010 (draft)............................................12
According to the draft certain regulations regarding Surrogacy contract is given below....................12

Legal complexities that may result from surrogacy contracts..........13


Are surrogacy contracts enforceable?....................................................................................................13
Is payment of a fee in violation of baby-selling statutes,?.....................................................................14
Surrogacy and public policy is the contract counter to public policy?...................................................15
What happens if the surrogate decides to keep the child?......................................................................15
What would be appropriate damages for breaches of the contract?.......................................................16
How could disputes be resolved?...........................................................................................................17
Who is the legal mother?.......................................................................................................................17

Social Implications of Surrogacy Contracts.......................................17


A. Commodification of Children........................................................................................................17
B. Commodification of Women..........................................................................................................18
C. Psychological Anguish to Child and Surrogate Mother.................................................................18

Conclusion.............................................................................................19
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What is Surrogacy??

The concept of surrogacy, the possible motivations behind its practice, and the variety of forms it
may take, is described by Gillian Douglas: Surrogacy has received more adverse criticism than
any of the other new reproductive techniques. It was first to receive legislative attention , in
1985 The true incidence of surrogacy is unknown, though it seems likely that the amount of
emotion expended upon it is out of all proportion to the extent to which people would and do
resort to it in order to have children. But surrogacy, together with abortion, raises in perhaps
starkest from the questions of (a) the extent to which women should be free to exploit and
control their reproductive capacity, even when they have no wish to raise a child themselves, and
(b) the degree to which others should be able to call upon that reproductive capacity to fulfill
their own needs. Our stereotyped images of motherhood and of the appropriate circumstances in
which children should be born are particularly challenged here. Additionally, the conflict
between the potential of surrogacy to enhance female reproductive freedom, and its potential to
allow exploitation and control by others of womens bodies, has been responsible for
considerably divided opinions among feminists on the desirability of its practice.1

The word surrogate has its origin from a Latin word surrogatus, meaning a substitute, that is, a
person appointed to act in the place of another. Hence a surrogate mother is a woman who
carries a child on behalf of another woman, either from her ovum or from the implantation in her
womb of a fertilized egg from other woman.

As per the Warnock Committee surrogacy is the practice whereby one woman carries a child for
another with the intention that the child should be handed over after birth. This implies that the
carrying woman acts at the request of another woman who is usually unable to have a child
herself. While this may be so in some cases, the impression gleaned from the few cases, which
have arisen in England and United States of America, suggests rather that the inspiration and
driving force for the arrangement often comes from the husband or the partner, the
commissioning father of the infertile woman. It is often a mans desire to have a child
genetically related to himself which appears the prime motivation for many surrogacy
arrangements.2 Well it may be well pointed out on this note that with the development of IVF and
1
Douglas Gillian, Law Fertility and Reproduction, 1991, London, Sweet & Maxwell, p. 141-42
2
Wheat Kay & Stauch Marc, Text, Cases & Materials on Medical Law, 2006, New York, Rouledge Cavendish, p.
389
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embryo technology the woman may not be genetically related to the child and the surrogacy may
be describes just as womb-leasing.

In English Law, the only statutory definition of surrogacy is contained in the Surrogacy
Arrangements Act 1985 where u/s 1(2), a surrogate mother is:

means a woman who carries a child in pursuance of an arrangement:

(a) Made before she began to carry the child; and


(b) Made with a view to any child carried in pursuance of it being handed over to, and the
parental rights being exercised (so far as practicable) by, another person to other
persons.

And u/s 1(3) it is defined that:

An arrangement is a surrogacy arrangement if, were a woman to whom the arrangement relates
to carry a child in pursuance of it, she would be a surrogate mother.

A slandered definition of surrogacy has been forwarded by American Law reports3 as:

a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to
conceive a child through artificial insemination with the sperm of the natural father , to bear and
deliver the child to the natural father, and to terminate all of her parental rights subsequent to the
childs birth.

On the note of defining surrogacy it may be very well noted here that surrogacy is of three
types4:

(a) Traditional Surrogacy It involves the artificial insemination of the surrogate mother by
using the sperm of the intended father
(b) Gestational Surrogacy This sort of surrogacy involves the creation of an embryo in a
Petri dish and its implantation into the womb of the surrogate mother who carries it to the
term.

3
American Law Reports, Validity and construction of Surrogate Parenting Agreement, 77 A.L.R. 4. 70. (1989)
4
Avialable at http://legalsutra.org/1561/surrogacy-and-its-legal-aspects/ visited on April 13 2011.
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(c) Donor Surrogacy In donor surrogacy there is no genetic relationship between the child
and the intended parents as the surrogate is inseminated with the sperm, not of the
intended father but of an outside donor.

Legal complexities involved with surrogacy:-

Closely linked to such ethical questions are a multitude of legal questions concerning surrogacy,
because laws were written for other circumstances, not specifically for surrogacy. Are surrogacy
contracts enforceable? Are they illegal? Is payment of a fee in violation of baby-selling statutes,
i.e., is it payment for services rendered or for the child? Is the contract counter to public policy?
What happens if the surrogate decides to keep the child? What would be appropriate damages for
breaches of the contract? Would they be monetary, or would they require specific performance?
How could disputes over visitation rights be resolved? Who is the legal mother? How can the
husband of the infertile woman establish his paternity rights? Who should participate in decisions
affecting the welfare of the fetus and the newborn? 5 These are certain questions which shall
require analysis by legal jurists to answer these correctly. But there are certain committees which
have tried to answer these questions. These complex questions and issues have been studied in
Great Britain (Warnock Committee)(10), in Canada (Ontario Law Reform Commission)(7), in
France (Comit Consultatif National dthique)(9), in Victoria and New South Wales, Australia
(Waller Committee and New South Wales Law Reform Commission)(5 and 3), in other states of
Australia (Queensland, Tasmania, South Australia, Western Australia), in Spain (Congress of
Deputies Special Commission), in West Germany (Benda Commission), in the Netherlands
(Dutch Health Council), as well as in the United States (American Fertility Society and Office of
Technology Assessment)(2 and 13).

While framing the Indian surrogacy Act these are certain reports which may be used as reference
as these reports give an answer to the problems mentioned above and also an outlook towards
how the act of surrogacy is approached in these countries.

Before coming to Indian scenario, on this note if one views the condition of surrogacy activities
in various countries the following studies can be made.

5
Nath G. V. Mahesh, A Critique On Surrogacy Contracts, 2002, Allahabad, Allahabad Law Publishing House
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Condition in other countries:-

In England, based on the recommendations of Warnock Committee the surrogacy


arrangements act, 1985 was brought into force. Under this act surrogacy arrangements are made
legal and the act prohibits advertisements and other aspects of commercial surrogacy. The act
prohibits giving or taking of money or other benefit (other than expenses reasonably incurred) in
consideration of the making of the order or handling over of the child.

In United States of America, commercial surrogacy seems prohibited in certain states. In the
famous baby M case, the New Jersey Supreme Court, though allowed custody to commissioning
parents in the best interest of the child, came to the conclusion that surrogacy contract is
antagonistic to public policy. It must be noted that in the US surrogacy laws are different in
different states. In USA Gestational Surrogacy act 2004, deals with this aspect. The purpose of
this act is to lay down consistent standards and procedural safeguards for the protection of all
parties involved in a gestational surrogacy contract in the state and to confirm the legal status of
the new born as a result of these contracts. The standards and safeguards are meant to facilitate
the use of this type of reproductive contract in accord with the public policy of the state. Later
Johnson v. Calvert, the American judiciary took a libertarian approach. Through this case the
Supreme Court extended constitutional umbrella to surrogacy controls and gave them a legal
validity. The court held that the surrogacy contract involved free, informed and rational choice
by a woman to use her body. In Surrogacy Parenting Associate v. Commonwealth of Kentucky,
the court propounded the intension test for the determination of natural mother. In re. marriage
of John A. the court held that even though the commissioning parents are not biologically
related to the child, they are still is/her legal and lawful parents given their initiating role as the
intended parents in his/her conception or birth. Even after separation of married couples whoever
opted for artificial insemination, the husband would still continue to be the father of the offspring
thus produced as per people v. Sorensen. In Lamaritata v. Lucas the court held that a person who
gives sperm to a surrogate mother who is not the commissioning father but just a donor has no
legal right over the child.

In Australia after the case of Kirkman sisters, there has been humungous hue and cry regarding
surrogacy. Now, in Australia commercial surrogacy is totally banned and illegal and contracts in
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relation to surrogacy are totally unenforceable and payment for soliciting a surrogacy
arrangement is illegal.

Surrogacy Laws in India

Till date the surrogacy laws in India are guided by the 228 th Law Commission report chaired by
Dr A. R. Lakshmanan, submitted to the Union Minister of Law and Justice, Ministry of Law and
Justice, Government of India, Dr. Veeruppa Moily. The report was titled as REPRODUCTIVE
TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A
SURROGACY. This Law Commission report is till date the only source of Primary Law in
India as far as surrogacy and IVF is concerned. The act regarding surrogacy in India is still a
draft and is known as the THE ASSISTED REPRODUCTIVE TECHNOLOGIES
(REGULATION) BILL - 2010 this act once properly formed shall be the source of surrogacy
laws in India. In this project the law commission report and the draft of the ART act shall be
dealt separately.

Reproductive technology clinics as well as rights and obligations of parties to a surrogacy.


Firstly before going into the details of this report the topics covered in this report is given below:

(a) Introduction.
(b) The draft assisted reproductive technology (regulation) bill and rules 2008.
(c) Seminar on Surrogacy boon or bane.
(d) Conclusion and recommendation.

Introduction:
The introduction deals with a basic outline to surrogacy, with definitions of what is surrogacy in
United Kingdom and United States of America. The introduction also talks of the history of
surrogate babies and lays down a concept of surrogacy as understood by a layman. Then the
introduction deals with the meaning and types of surrogacy. The introduction also lights upon the
position of India as a favorite surrogacy destination and provides facts like The usual fee is
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around $25,000 to $30,000 in India which is around 1/3 rd of that in developed countries like the
USA. This has made India a favorable destination for foreign couples who look for a cost-
effective treatment for infertility and a whole branch of medical tourism has flourished on the
surrogate practice. ART industry is now a 25,000 crore rupee pot of gold. Anand, a small town in
Gujarat, has acquired a distinct reputation as a place for outsourcing commercial surrogacy. It
seems that wombs in India are on rent which translates into babies for foreigners and dollars for
Indian surrogate mothers.6 The introduction also gives a basic approach to the moral and legal
complications related to surrogacy and justified surrogacy by case laws and UDHR Charter. The
M case to highlight upon the condition of surrogacy in India in relation to foreign couples.

The draft assisted reproductive technology (regulation) bill and rules 2008:
Certain observations were made on the draft in this Law commission report. The observations are
given below:

(a) (ICMR) has come out with a draft Assisted Reproductive Technology (Regulation) Bill
and Rules 2008. The draft Bill contains 50 clauses under nine chapters.
(b) The Bill acknowledges surrogacy agreements and their legal enforceability. This will
ensure that surrogacy agreements are treated on par with other contracts and the
principles of the Indian Contract Act 1872 and other laws will be applicable to these
kinds of agreements. The Bill provides that single persons may also go for surrogacy
arrangements.
(c) The Bill provides that a foreigner or foreign couple not resident in India or a non-resident
Indian individual or couple, seeking surrogacy in India, shall appoint a local guardian
who will be legally responsible for taking care of the surrogate during and after
pregnancy till the child is delivered to the foreigner or foreign couple or the local
guardian. It is further provided that the commissioning parents or parent shall be legally
bound to accept the custody of the child irrespective of any abnormality that the child
may have, and the refusal to do so shall constitute an offence. A surrogate mother shall
relinquish all parental rights over the child. The birth certificate in respect of a baby born
through surrogacy shall bear the name(s) of genetic parents/parent of the baby.
(d) The Bill also provides that a child born to a married couple or a single person through the
use of ART shall be presumed to be the 17legitimate child of the couple or the single
6
228th Law Commission Report Need for legislation to regulate assisted reproductive technology clinics as well as
rights and obligations of parties to a surrogacy.
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person, as the case may be. If the commissioning couple separates or gets divorced after
going for surrogacy but before the child is born, then also the child shall be considered to
be the legitimate child of the couple.
(e) The Bill further provides that a couple or an individual shall not have the service of more
than one surrogate at any given time. A couple shall also not have simultaneous transfer
of embryos in the woman and in a surrogate.
(f) Chapter I of the Bill contains definitions. Chapter II provides for constitution of a
National Advisory Board for ART and State Boards for ART for laying down policies,
regulations and guidelines, and Registration Authorities for registering ART clinics.
Chapter III lays down procedure for registration of ART clinics. Chapter IV prescribes
duties of ART clinics. One of the duties is to make couples or individuals, as the case may
be, aware of the rights of a child born through the use of ART. The duties also include the
obligation not to offer to provide a couple with a child of a pre-determined sex. Chapter
V provides for sourcing, storage, handling and record-keeping for gametes, embryos and
surrogates. Chapter VI regulates research on embryos. Chapter VII discusses rights and
duties of patients, donors, surrogates and children. Chapter VIII deals with offences and
penalties therefore. Chapter IX is titled Miscellaneous and includes power to search and
seize records etc. and the power to make rules and regulations. This legislation is
intended to be in addition to, and not in derogation of, other 18relevant laws in force.

Conclusion and recommendation

The Law Commission report has put foreward certain recommendation and conclusion as far as
surrogacy is concerned. The recommendations identified by the commission are given as
follows:

(a) Family is a basic unit of the society and an artificial method like surrogacy puts this
system into a flux. Hence, the need of the hour is to adopt a pragmatic approach by
legalizing altruistic surrogacy arrangements and prohibit commercial ones.
(b) The bill prepared by ICMR is full of lacunaes and as per the Commission report the
following drawbacks are identified in the draft. (Detailed provisions of the draft will be
dealt under the next topic.)
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i. Surrogacy to be guided under Indian Contract Act but surrogacy in India must not
be for commercial purposes.
ii. Agreement should provide for financial support for the surrogate child if, the
commissioning parents die or divorce before taking the child into custody, or if
the child is not accepted by either parents after divorce.
iii. Insurance for surrogate mother.
iv. One of the intended parents should be a donor, so that the complexities rise from
adoption like, child-abuse may be avoided.
v. Surrogate child to be recognized as legitimate child, to avoid legal complexities
like, adoption or declaration of guardian.
vi. The birth certificate of the surrogate child should contain the name(s) of the
commissioning parent(s) only.
vii. Right to privacy of donor as well as surrogate mother should be protected.
viii. Sex-selective surrogacy should be prohibited.
ix. Cases of abortions should be governed by the Medical Termination of Pregnancy
Act 1971 only.

The Assisted Reproductive Technologies (Regulation) Bill 2010


(draft)
This draft deals in detail with various assisted reproductive technologies and Surrogacy is one of
them. It has defined:

surrogacy as: surrogacy, means 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 to carry it and hand over the child to the person or persons for
whom she is acting as a surrogate.7

surrogate mother as: a woman who is a citizen of India and is resident in India, who agrees to
have an embryo generated from the sperm of a man who is not her husband and the oocyte of
another woman, implanted in her to carry the pregnancy to viability and deliver the child to the
couple / individual that had asked for surrogacy.8

7
The Assisted Reproductive Technologies (Regulation) Bill 2010, Section 2(aa)
8
The Assisted Reproductive Technologies (Regulation) Bill 2010, section 2(bb).
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And surrogacy agreement: as a contract between the person(s) availing of assisted reproductive
technology and the surrogate mother.9

According to the draft certain regulations regarding Surrogacy contract is given below

The draft also provides for the establishment of a National Advisory Board and it shall act in
cases related to assisted reproductive regulations in the country. U/s 5(1)(i) of this act this
committee shall proformae for obtaining information from donors of gametes and surrogate
mothers, consent forms for various procedures, and contracts and / or agreements between the
various parties involved, in all of the languages listed in the Eighth Schedule of the
Constitution;. Chapter IV u/s 21(1) it is stated that Assisted reproductive technology clinics
shall ensure that patients, donors of gametes and surrogate mothers are eligible to avail of
assisted reproductive technology procedures under the criteria prescribed by the rules under this
Act and that they have been medically tested for such diseases, sexually transmitted or otherwise,
as may be prescribed and all other communicable diseases which may endanger the health of the
parents, or any one of them, surrogate or child. Moreover u/s 20(5) Assisted reproductive
technology clinics shall obtain donor gametes from ART banks that have ensured that the donor
has been medically tested for such diseases, sexually transmitted or otherwise, as may be
prescribed and all other communicable diseases which may endanger he health of the parents, or
any one of them, surrogate or child. And as per section 20(9) the identity of the surrogate
mothers shall also be kept confidential. And u/s 20(10) No assisted reproductive technology
clinic shall consider conception by surrogacy for patients for whom it would normally be
possible to carry a baby to term. Other than these u/s 20(16) only a registered ART bank (and no
other organization) shall be authorized to advertise for, procure or provide semen, oocyte donor
or surrogate mother. U/s 22(1) to avoid legal complexities All assisted reproductive technology
clinics shall maintain detailed records, in such manner as may be prescribed, of all donor oocyte,
sperm or embryos used, the manner and technique of their use, and the individual or couple or
surrogate mother, in respect of whom it was used.

9
The Assisted Reproductive Technologies (Regulation) Bill 2010, section 2(cc).
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Legal complexities that may result from surrogacy contracts


Though in the above topic details have been given regarding surrogacy but certain questions
remained unanswered are given in this topic

Having stated the laws related to surrogacy and surrogacy contracts; certain conditions are given
below which may result in situations of surrogacy and their implications, both legally and
socially:

Are surrogacy contracts enforceable?

Well as the surrogacy bill is still a draft but as it is not prohibited by the Indian Surrogacy act,
hence it is a legal one. Now like any other contract till date in the absence of a proper bill
Surrogacy arrangement is merely an agreement or an understanding arrived between the
surrogate mother and the intended parents. This understanding is written down in the form of a
contract. Therefore the rights and liabilities of the parties are determined by the contents of that
surrogacy contract. The parties cannot on a later date, after signing the contract, claim that the
intention of the parties was any different from what is mentioned in the surrogacy contract.
Hence it is same as any usual contract, but in India before a surrogacy contract is enforceable it
is vetted, which is commonly known as Review Of the Surrogacy Contract. Vetting is actually a
report drafted to give a clear understanding of the provisions held in the contract. As far as
vetting is concerned the review of the Surrogacy Agreement shall be done by a lawyer enrolled
in the Bar Council of India with experience in the field of Indian Surrogacy Laws. On reviewing
of the surrogacy contract, a vetting report named Review of the Surrogacy Contact shall be
submitted. The report shall evaluate every aspect of the surrogacy contract, and shall also make
recommendations for bettering the surrogacy contract for protecting the rights of the Intended
Parents. This review of the surrogacy contract gives the Intended Parents a panoramic view about
the rights of the parties in the agreement. The Review of the Surrogacy Contact is the standard
requirement of many embassies. After the completion of the vetting process of the surrogacy
contract it may be enforceable in the court of Law.

Is payment of a fee in violation of baby-selling statutes?

According to R. Korneygay a common objection to commercial surrogacy on the grounds that


the child is treated as a commodity for sale by the surrogate and the commissioning couple. I
analyse one prevalent argument for the view that commercial surrogacy is a kind of baby-selling,
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not service-selling. I conclude that this argument rests on an implausible interpretation of what
the reproductive services are. I defend an alternative interpretation of typical surrogacy
agreements. Furthermore, I argue that this interpretation fails to support the conclusion that the
surrogate is primarily or exclusively selling a baby, rather than her reproductive services. My
primary concern is to diagnose a conceptual error in an argument against surrogacy. However,
the interpretation of surrogacy arrangements that is defended helps to shift the focus from the
issue of whether or not the child is degraded to the issue of whether or not the surrogate degrades
herself or is degraded by the commissioning couple. According to Andrew Kimbrell "It is the
attempt to commodify the act of child-bearing and to commodify children,"

One major positive in the surrogacy draft is that it doesnt legalize donor surrogacy, hence even
in surrogacy one of the parents of the child is biological hence unless there is a divorce, there is
no scope for child selling as one cant buy ones own child. But in case of divorced couple there
is enough scope for child-selling under the veil of surrogacy.

In India if commercial surrogacy is allowed then there shall be no doubt baby-selling in


disguise, and due to the complex social structure of India and how baby-selling has been
prominent, this may be a hard nut to tackle but, there are two solutions. 1. If according to the
suggestion of the Law commission 228th report commercial surrogacy is banned or 2. As already
put in the draft if surrogacy is only allowed from ART centers then a check can be kept on
commercial surrogacy but whether it will stop child selling is to be seen.

Surrogacy and public policy is the contract counter to public policy?


While the law acknowledges that surrogacy is an acceptable form of fertility treatment and often
a last hope for infertile couples, it balances this against a wider public policy against
commercialized reproduction. This public policy is one that is seen throughout fertility law for
example, restricting the payments that can be made to donors, and leading to the careful
regulation of egg sharing schemes. Public policy upholds the principle that such intimate
arrangements should be gifts, and that reproduction should not be bought and sold. Surrogacy
also puts up loads of question towards the acceptance of the surrogate child and the Parental care
towards the child. Moreover in the Ohio Supreme Court case of J.F v. D.B.10 it was held that in
case of donor surrogacy there is no biological connection between the child and the parents and
10
2007 Ohio 6750 - 2007
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hence it is against public policy, but again as donor surrogacy is not permitted in India and at
least one of the parents must be the biological parent does not make surrogacy an anti public
policy.

Gestational surrogacy is a appropriate and legitimate means of helping infertile couples. It should
be regulated as India has chosen to do, so that all parties and the resulting children can be
protected by the law. Indeed, gestational surrogacy contracts are agreements for the creation of
life. But this doesnt inherently invalidate their legitimacy as suggested by the dissent. When all
parties rights and responsibilities are addressed in advance, the states oversight responsibilities
are accomplished11

What happens if the surrogate decides to keep the child?

Well in India as stated before there is the existence of proper contracts, vetted before application
and is done as per Indian Contract Act. Moreover when the draft will come as an act it will have
provision as given above stating that the surrogate mother cannot keep the child. Hence legally
under no condition can the surrogate keep the child. In case the parents of the child dies then
custody of the child will be given to the nearest living relatives. In case the surrogate keeps the
child then the child can be restituted to his parents as per the direction of the court, as it will be a
breach of the surrogacy contract.

What would be appropriate damages for breaches of the contract?

Breach of surrogacy contract can happen in multiple manner:

(a) During pregnancy.


(b) After birth of the child.

If the surrogate mother decides to break the contract during pregnancy, then it may result in
culpable homicide as, the only way to do it is abortion. Thought the current draft provides for
abortion under relevant laws and section. But it must be taken into account that charges of
murder and culpable homicide not amounting to murder can be put against on breaching the
contract at this stage. Hence for such a breach proceedings can be started in both civil and
criminal terms. While a proceeding in Criminal court wont give damages but a civil suit for this
11
Avialable at http://www.peskindfamilylawinsights.com/surrogacy-and-public-policy/ Visited on 15th April 2011.
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matter can award heavy damages. Moreover in case of breach of contract after the birth of child a
case of kidnapping may be launched against the surrogate mother if she does not hand over the
child, as the rights over the child are already decided in the vetted contract which took place
before the surrogacy started. Such cases of legal kidnapping are galoring in the American states
where surrogacy is legalized and large sums are asked by surrogate mothers to withdraw the
rights of the infant. According to IPC this can also be a case of murder because in this case
specialized knowledge lies with the surrogate mother, on how to kill the infant in the fetus.

How could disputes be resolved?

Since right now surrogacy is done as per the Indian Contracts Act hence all disputes are resolves
as per the provisions of the act and the various courts of the country posses the jurisdiction over
the matter of surrogacy. Once the surrogacy draft comes into play it will be another source of law
for surrogacy matters. As provided by the law commission report, Surrogacy courts may be
established to pace up the rate of justice delivered in these matters.

Who is the legal mother?

As clearly stated by the vetted contract or as provided in the surrogacy draft, the commissioning
mother shall be the mother of the child, and the surrogate mother shall withdraw all rights over
the child. Even all decisions related to the child shall be taken by the commissioning mother. But
when the child if in the foteas of the surrogate mother then confusion regarding taking the
decisions regarding the child may arise. Though the surrogate mother carries the child, but as
stated in the surrogacy draft and in most contracts the surrogate gets monetary benefits for the
child, hence I believe that the rights regarding taking decisions of the child lies with the
commissioning parents at all time.

Social Implications of Surrogacy Contracts


The legal perspective on surrogacy has to be essentially colored by moral and ethical overtones
on which the public policy considerations are grounded. Since the courts need to grapple with
such issues, it is important to delineate the major ethical issues involved. The table below
succinctly summarizes all such aspects.
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A. Commodification of Children

OPPONENTS: Surrogacy is a baby manufacturing and selling activity whereby the surrogate
mother leases her womb and manufactures the child like a product from the raw materials
provided by the genetic parents. In such case, the parents may disown the child if he is physically
or mentally handicapped.12

PROPNENTS: The child born is a unique human being. The money paid to the surrogate mother
who undertakes pain with altruistic motives is compensatory. Parents do not disown their natural
children even if they are handicapped.

B. Commodification of Women

OPPONENTS: Surrogacy and prostitution are equivalent. They fear that, in a patriarchal
society, rich will exploit the poor women. Secondly, surrogacy demeans the mother-child
relationship and turns women into breeder machines. Lastly, surrogates consent is not well
informed as she is forced to relinquish her rights even before the bond with child grows.

PROPONENTS: Surrogacy is an exercise of reproductive choice and freedom to contract by


women. They opine that surrogacy promotes womens constitutional rights to privacy and
procreation and hence advocate economic autonomy and independence of women.

C. Psychological Anguish to Child and Surrogate Mother

OPPONENTS: Surrogacy attaches commercial values to social and moral meanings associated
with reproduction and fragments the social and moral bonds of kinship. Secondly, the
knowledge of the means of their birth will make such children psychologically disturbed. Lastly,
as the genesis of parenthood is in interaction with child and not in genetic relationship, it is
difficult for the surrogate to part with the child.

PROPONENTS: Surrogacy is an act of altruism and sympathy towards childless couples and
thus the surrogate can part with the child easily. Further, she has sufficient time for cogitating
over her consent and can withdraw it if she feels attached to the child.

12
Malahoff v. Stiver, 975 F.2d 192 (6th Cir.,1988)
1

D. Best Interest of Child

OPPONENTS: Surrogacy agreement predetermines the best interests of the child by deciding the
custody issue. Public morality, as reflected in adoption statutes, should guide surrogacy
transactions as opposed to sole reliance on contractual terms.

PROPONENTS: Judicial determination of best interests of child after the birth will frustrate the
contract and deprive the infertile couple of the services. The relationship with genetic parents
should be the paramount index for determination of best interests of the child due to the
historical importance of biological relationships for the development of the child.

Thus, the greatest attack against surrogacy is that "creating a child without desiring it
fundamentally changes the way we look at children--instead of viewing them as unique
individual personalities to be desired in their own right, we may come to view them as
commodities or items of manufacture to be desired because of their utility" 13 leading to the
danger of rejection of handicapped children. However, the proponents are strongly premised on
the freedom and economic autonomy of women14 and the following resounding note is pertinent
to be quoted in this regard:

Woman as conscious, moral, social and political being is also woman as economic being. We
cannot separate ourselves from our economic existence or ignore the value of our reproductive
powers. The failure to acknowledge the economic value of female reproductive labor is blind
folly for those who wish for equity in women's social situation.15

As both stances on these ethical dilemmas are vulnerable to fallibility due to equally convincing
counter arguments, law needs to strike a delicate balance, not attempting to take sides on the
16
moral battlefront, but by devising a framework in light of various interests involved.

13
Herbert T. Krimmel, Surrogate Mother Arrangements From the Perspective of the Child, 1988, London,
Oxford University Press.
14
See Richard A. Posner, The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 1989, New
York, J. Contemp. Health L. & Pol'y.
15
Christine L. Kerian , Surrogacy: A Last Resort Alternative for Infertile Women or a
Commodification of Womens Bodies and Children, 1997, London, Wis. Women's L.J. 113
16
Sharma Raghav, An International, moral and legal perspective: The Call for Legalization of Surrogacy in India
2011, Nlu-J law Journal.
1

Conclusion

On a concluding note, it may be very aptly noted out that, surrogacy is here to stay and seeing its
rising demand, it can be very safely concluded that surrogacy business in India will grow by
many folds. With the current procedures regarding surrogacy will meet the new draft regarding
surrogacy, the surrogacy system will become much clear and clean. As pointed out in the project
itself, the draft has been able to answer many questions of law which may arise out of this
complex medical procedure. This project was regarding various law points related to Surrogacy
Contracts. While doing it the project has in details, identified and analyzed the 228 th Law
Commission Report as well as the draft bill and their provisions related to surrogacy and tries to
answer questions relating to situations which were not covered in the draft. Finally it may be
concluded that the draft is of immense importance because it not only covers the points regarding
surrogacy contract, but also lays down sections which are to be referred in case of complexities
regarding an array of issues, hence, the draft blocks almost all loop holes that generally
accompany surrogacy contracts.

ABSTRACT

Throughout the world, nature rules. It balances everything but here in India, nature is over-ruled.
India has one of the lowest sex-ratios in the world. India is a country where woman is worshiped
as a deity and it is the same country where she is get rid of like a rotten part of the body. Earlier
she was killed brutally after her birth but now due to advancement of medical technology, she is
not even given right to take birth. Nature bears testimony to this fact that her survival is essential
for the continuance of human race. To kill her means to bring an end to the whole human race.
The rights that have discrimination on the basis of gender are not the rights that we need in our
country.

Bibliography

Internet Sources

centre.surrogacycentreamerica.co/
1

blog.indiansurrogacylaw.com/

indiansurrogacylaw.com/

nitawriter.wordpress.com/.../surrogacy-law-to-be-drafted-in-india/

Books and Articles

Surrogate motherhood: politics and privacy - Page 262 by Larry Ogalthorpe Gostin.

Surrogate motherhood: international perspectives - Page 23 by Rachel Cook, Shelley


Day Sclater.

www.proudparenting.com/- words by John Healey MP

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