“Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

List of

Research Papers accepted/published/presented

1. Research Paper No. 1

“Surrogacy: Exploiting Motherhood for Progeny”

accepted for publication in the Journal of Judicial Training &
Research Institute, Lucknow (U.P.) in their coming issue.
ISSN No. - 0976-9153

2. Research Paper No. 2

“Surrogacy: A Bane or Boon”

Published in -
Legal Desire Quarterly Journal
Vol-1, Issue 1
October 2013
Email: info@legaldesire.com
Visit us:www.legaldesire.com
ISSN: 2347-3525O

( Neha Bahl)

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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

Letter of acceptance of research paper by Deputy Director,

Judicial Training & Research Institute, Lucknow (U.P.)

Surrogacy: Exploiting Motherhood for Progeny

(Research paper accepted for publication in the Journal of Judicial Training & Research
Institute, Lucknow (U.P.) in their coming issue. ISSN No. - 0976-9153)

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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

Ms. Neha Bahl,

Ph.D. Research Scholar,
Subharti Institute of Law,
Swami Vivekanand Subharti University,
Meerut (U.P.)

In recent years, sharp growth in surrogacy in the world has drawn much attention
and has raised several ethical concerns. Globally, it is estimated that 15 percent of couples
around the world are infertile, which implies that infertility is one of the most highly
prevalent medical problems. The magnitude of the infertility problem also has enormous
social implications. Besides the fact that every couple has the right to have a child, in India
infertility widely carries with it a social stigma, as in the Indian social context, children are
considered a kind of old age insurance. With the enormous advances in medicine and
medical technologies, today 85 percent of the cases of infertility can be taken care of
through medicines, surgery or through the new medical technologies such as In-Vitro
Fertilization (IVF) or Intra-Cytoplasmic Sperm Injection (ICSI).
This has been made possible only by resorting to the practice of surrogacy,
wherein the womb of another woman is hired/rented to conceive and give birth to a child
for the infertile couple or individual, which involves the use of various types of assisted
reproductive technologies. The developing countries such as India offer a much cheaper
platform for such medical tourism industry, which easily provides the ‘desperate and
infertile’ parents the child of their own genes and the surrogate in turn gets the much
needed money for running her family life. Once a taboo, surrogacy is now socially
accepted and practiced in India as because either the couples suffer from the problem of
infertility or the poor, illiterate Indian women feel the grudge to earn money for their
family and kids and the latter thing drags them into this whole racket of womb labour.
Here the word chosen is ‘labour’ over ‘work’ because labour is used to describe both work
undertaken as a means of earning income as well as the process of childbirth.
As the title resorts to ‘exploiting a motherhood for progeny’, the researcher, being
herself a woman, cannot imagine of a woman’s body being used as a machine for baby
making. But if her womb is used to give a life to someone in the form of a baby, then it
can be accepted, as is also recognized by the guidelines provided by the Indian Council of
Medical Research in 2005, which incorporates that surrogacy as a mechanism is used to
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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

help the people who cannot have children in the natural way. As also the inability to
procreate is considered a personal tragedy and a curse for the couple, creating an impact
on the entire family and even the local community. Infertility refers to the biological
inability of a person (be it man or woman) to contribute to conception of a child. The
World Health Organization has described ‘infertility’ as the inability to conceive a child. A
couple may be considered infertile if after two years of regular sexual intercourse, without
contraception, the woman has not become pregnant.1 In most developing countries,
women are blamed for infertility, resulting in the social stigma of childlessness, even if
they are not the cause for the same. This may be because in many cultures, womanhood is
defined through motherhood and women usually carry the blame for the couple’s inability
to conceive. Childless women are frequently stigmatized, resulting in isolation, neglect,
domestic violence and polygamy.
On the other hand, not only female infertility, but also the majority of
male infertility in developing countries is caused by infections of the
male genitourinary tract. It is believed that more than 80 million couples suffer
from infertility worldwide, the majority being the residents of developing countries as
compared to the Western societies. This may be because developing countries encounter
lack of facilities at all levels of health care. Developing countries have a large reservoir of
infertility problems, of which bilateral tubal occlusion is the most important one, which is
caused due to previous pelvic infection, a condition that is potentially treatable through
assisted reproductive technologies. It is mainly caused by sexually transmitted diseases,
postnatal or post-abortal infections and pelvic tuberculosis etc. Therefore, artificial
insemination is been resorted to since many years and various procedures have been
developed including intra-vaginal, intra-cervical and intra-uterine insemination.
Thus, another woman’s womb is hired for giving birth to an infertile couple’s
child, wherein usually a close relative was resorted to who was looked after and taken care
of during the period of pregnancy, as there was no financial obligation involved in the
process. However, with the times changing and relatives not readily available to suffer the
discomfort and pain involved, the services of surrogate mothers have assumed pecuniary
overtones. Thus, ‘Surrogacy’ is being resorted to widely as a solution to infertility where
one or both of the partners suffer from the problem of infertility.
1
http://www.who.int/topics/infertility/en/; last visited on 02/10/2014; time 09:00 am (IST); place Meerut,
Uttar Pradesh, India.
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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

The practice of surrogacy is ancient but surrogacy in exchange for money evolved
with the development of science relating to infertility and the possibilities of non-coital
reproduction have given the society awesome opportunities. As early as in 1950s, Robert
Edwards, working at the National Institute for Medical Research in London, made a
number of fundamental discoveries about how human eggs mature, how different
hormones regulated their maturation and at which point in time the eggs were susceptible
to fertilization. After several years of work, he succeeded, in 1965, in finding the right
conditions that activated the dormant and immature egg cells in vitro and promoted their
maturation. He found that human oocytes required 24 hours of incubation before the
maturation process began and this prolonged cultivation resulted in egg cells suitable for
IVF. In 1969, he identified the buffer conditions to support in vitro activation of hamster
oocytes. He used the same buffer conditions and showed that human spermatozoa thus
activated could also promote the fertilization of in-vitro matured oocytes. Thus, due to his
efforts the first IVF baby ‘Louis Brown’ was born in 1978, the world’s first baby to be
born after the use of in-vitro fertilization technique. This discovery marked an important
milestone in the development of treatment for infertility in humans. The discovery of this
technique by Robert Edwards has fetched him Nobel Prize in 2010 which is major medical
advancement and a boon to infertile couples all over the world.
The world’s second and the India’s first IVF baby, Kanupriya alias Durga was born
in Kolkata on 3rd October, 1978 about two months after the world’s first IVF child was
born in Great Britain on 25th June, 1978. America celebrated the birth of its first IVF
conceived baby Miss Elizabeth Carr born in Norfolk, Virginia on December 28, 1981 and
since then surrogacy has become one of the mainstream options for childless couples
across the world, who have a strong desire to have a child of their own but do not desire to
adopt one. Such couples resort to surrogacy because of medical conditions that prevent
natural childbirth. Such conditions include infertility, danger of the pregnancy harming the
woman or the child etc. The infertile couples who are not able to conceive a child of their
own take the help of reproductive technologies like artificial insemination, in-vitro
fertilization/test-tube baby and surrogacy, which have become a ray of hope for them.
These reproductive technologies are treated as a remedy for many problems and offer a
wide range of choices, which have reached new dimensions in this era of globalization. In-
vitro fertilization was originally advocated for treating the cause of female infertility due

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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

to tubal obstruction but has also been subsequently used to treat various other forms of
infertility, eg., endometriosis, idiopathic infertility, cervical hostility, immunological
infertility and oligospermia.

Exploiting Desperate Mothers:

The surrogacy arrangement is made between a couple (either of whom is infertile)
and a surrogate mother. In such an arrangement, the surrogate mother agrees to be
artificially inseminated with the male sperm or the fertilized embryo, to bear a child and to
give up all her parental rights and to transfer physical custody of the child to the infertile
couple on the birth of the child. Thus, the use of human surrogate mothers who receive
fertilized ova and carry it until birth is now a reality and is being practiced globally. The
major reason is the urge to have one’s own flesh and blood in their progeny. But the poor,
illiterate Indian women take this as a survival strategy and a temporary occupation to earn
money for the livelihood and betterment of their family, where they are recruited by
infertility clinics for giving birth for the infertile clients from India and abroad. Sometimes
they are also pressurized by their families to sell their body as surrogates to provide a
helping hand to their husbands. In the case of developing countries such as India,
surrogacy is fast emerging as a survival strategy because it provides a source of income to
the poor Indian women. On having a talk with Dr. Nayna Patel of Akanksha Infertility
Clinic, Anand, Gujarat her view was that surrogacy needs to be respected as a profession
as 75 % women who opt for surrogacy have unemployed husbands. They perform such
pregnancy for the sake of their family.2
But in the wake of earning money these women tend to create psychosocial risks
on their health. Some of them even lose their lives in this process of giving birth to the
surrogate child for earning money. For instance, one of the surrogates when turned up for
check-up suddenly had a convulsion and fell on the floor. She was immediately taken for
treatment, as she was showing signs of distress. The doctors conducted an emergency
caesarean section delivery. The child born through her was a month premature and was
admitted to the intensive care unit. The surrogate was in a highly critical condition, having
suffered a cardiac arrest. It is evident from this case that the life of the surrogate is

2
This information is based upon the interview and discussion done by the researcher with Dr. Nayna Patel of
Akanksha Infertility Clinic, Sat Kaival Hospital Pvt. Ltd., Anand, Gujarat, India.
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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

secondary, and it is only the baby whose life is paramount for whose birth the hospital is
being paid by the infertile couple. Most of the surrogate mothers sign contracts agreeing
that even if they are seriously injured during the later stages of pregnancy, or suffer any
life-threatening illness, they will be sustained with ‘life-support equipment’ to protect the
foetus. Another surrogate in Akanksha Infertility Clinic was found to have had over 20
cycles of hormonal injections. Since each child was often born through caesarean
operation, the health of the surrogate deteriorated with each operation. Even the medical
practitioners involved in conducting the surrogate births are rarely troubled about the fate
of the pregnant women whose normal maternal cycles have been disrupted. They are only
interested in delivering the end-product, ie., the surrogate child.3
The giving birth to a baby or any matter that is in relation with the body of a
woman is a matter of dignity. Surrogacy, though being advantageous to the couple who
have no kids, but is, inconsistent with human dignity as woman use her uterus for financial
profit and treats her womb as an incubator for someone else’s child. The desire to
procreate is a fundamental attribute of the human race. Sadly many are denied the joy of
parenthood due to several reasons, be it biological or otherwise, with the developments in
reproductive sciences and technologies the barriers to parenthood are no longer as
challenging as they once were. Over the years, surrogacy has evolved as a much preferred
mode of bringing a child into this world. India, in particular has seen a rise in surrogacy as
an ideal technique for childless couples to enjoy the pleasures of parenthood. Women or
couples who choose surrogacy often do so because they are unable to conceive due to a
missing or abnormal uterus. Most of them also have experienced multiple pregnancy
losses, or have had multiple in-vitro fertilization attempts that have failed. It is most of the
times, couples go for gestational surrogacy as there is an advantage to the parents, i.e., the
embryo is created from the woman’s egg and the man’s sperm and so it is biologically
theirs. The legalization of commercial surrogacy is also presented as an answer to the
social devaluation of Indian women who cannot bear children themselves. A report of the
Law Commission of India on the topic of surrogate mothers attributed the growth of the
practice to the social reality that “a mother is respected as a woman only if she bears a
child so that her husband’s masculinity and sexual potency is proved and the lineage

3
This information is based upon the interview and discussion done by the researcher with Dr. Nayna Patel of
Akanksha Infertility Clinic, Sat Kaival Hospital Pvt. Ltd., Anand, Gujarat, India.
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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

continues.”4 The Law Commission also recommended to the Indian law makers to make a
law which can end surrogacy for commercial purposes and limit it only to altruistic
arrangements in the society, where practice of surrogacy in exchange of money is not an
issue. Stringent legislation is the need of the hour to avoid exploitation and abuse of the
poor, illiterate Indian woman. In the absence of any government regulation, the guidelines
issued by the Indian Council of Medical Research (ICMR) help in the regulation of
Assisted Reproductive Technology procedures. Some of them include5:
a) Surrogacy arrangement will continue to be governed by a contract amongst
the parties;

b) Surrogacy arrangement should provide for financial support for the

surrogate child in the event of death of the commissioning couple or
individual, before the delivery of the child, or divorce between the intended
parents and subsequent willingness of none to take delivery of the child;

c) No woman who undertakes to be a surrogate can go beyond five

pregnancies, which includes her own children. The maximum of 3 embryos
are allowed to be implanted.

d) A surrogacy contract should necessarily take care of the life insurance

cover for the surrogate mother;

e) The enactment of law on regulation of surrogacy should itself recognize a

surrogate child to be the legitimate child of the commissioning parent(s)
without any need for adoption or even declaration of guardianship;

f) The birth certificate of the surrogate child should contain the name(s) of the
commissioning parent(s) only;

g) Right to privacy of the donor as well as the surrogate mother should be

protected;

h) Sex-selective surrogacy should be prohibited.

4
http://lawcommissionofindia.nic.in/reports/report228.pdf; last visited on 15/10/2014; time 3:00 pm (IST);
place Meerut, Uttar Pradesh, India.
5
http://sensiblesurrogacy.com/icmr_guidelines.html; last visited on 17/10/2014; time 2:00 pm (IST); place
Meerut, Uttar Pradesh, India.
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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

But the researcher is highly critical of such a situation because there are millions of
wombs available at cheap prices and it is unlikely that law following such guidelines will
be soon passed and global competition is likely to supervene as to who can provide the
cheapest wombs.
Commercial surrogacy or wombs for rent is a growing business in India. In places
like Akanksha Infertility Clinic in Anand District in State of Gujarat, women are paid $
5000 to $ 7000 to carry another couple’s child. 6 In our rapidly globalizing world, the
growth of reproductive tourism is a growing phenomenon. Increasing numbers of infertile
couples from US, UK, Japan and other countries are looking for surrogate mothers in
India, where cheaper services are an attractive incentive for those exploring surrogacy as a
fertility option. This is so because India has turned into ‘surrogacy capital’ and Gujarat
being the ‘Mecca’ for surrogacy and Mumbai being the runner-up in this race has attracted
many infertile foreign couples for this ‘reproductive tourism’. Surrogacy in India is
flourishing, thanks to the low cost of the procedure, the easy availability of the surrogates
in the world’s second most populous country in the world allows for commercial
surrogacy, abundant choices of donors with similar racial attributes and lack of any law to
regulate the practice of surrogacy is attracting both foreign couples and NRI couples
towards sperm banks and surrogate mothers. Presently, renting wombs has become an easy
and cheap option in India, which is becoming a booming centre of fertility market. The
surrogates take it as a win-win situation.
Apart from the comparatively low cost procedure, the Indian legal system is also
favourable to the Western infertile couples, as India presently has no legal enactment on
this issue. There are only the Supreme Court guidelines on the regulation of commercial
surrogacy in India.7 The guidelines prescribed by the Indian Council of Medical Research
(ICMR) in 2005 on the conduct and use of Assisted Reproductive Technology (ART)
procedure or treatment by fertility clinics is also the guiding factor as to how to deal with
such an issue. Subsequent to this, the ART (Regulation) Bill, 2010 was formulated by the
Union Ministry of Health & Family Welfare, which is still awaiting enforcement. The
ART (Regulation) Bill has legalized commercial surrogacy by providing for ‘monetary
compensation’ to the surrogate mother by the intending couple. In addition to these, the

6
This information is based upon the interview and discussion with Dr. Nayna Patel of Akanksha Infertility
Clinic, Sat Kaival Hospital Pvt. Ltd., Anand, Gujarat, India.
7
Baby Manji Yamada v. Union of India, (2008) 13 SCC 518.
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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

Law Commission in its Report No. 228 of 2009 has recommended legalizing altruistic or
non-commercial surrogacy arrangements in India in order to protect the surrogate mother
from exploitation, which is totally opposite to the ART (Regulation) Bill, 2010. Despite a
series of legal instruments seeking to regulate surrogacy, it is evident that the legal
position in India on this issue is inadequate and inconsistent. There is a dire need for a
uniform legislation on this issue. The researcher here suggests for the law makers that they
should enact stringent law on surrogacy to avoid exploitation of the surrogate mother, the
infertile couple, the doctors, hospital, nurses etc. The view point of Physicians,
Obstetricians, Psychologists, Sociologists and a few surrogate mothers should be taken
into account while drafting the law. This law should suit the needs of the people of this
country. This whole process of wombs for rent brings smiles and life on the faces of many
infertile couples but without strict laws to regulate it, it is detrimental for the women and
also misfit in our Indian culture.
On the other hand, surrogacy involves the stigma of getting pregnant for money,
which is associated with the ‘immoral’ commercialization of motherhood. Commercial
surrogacy in India, which entails giving away the baby as soon as it is born, reiterates the
disposability of these desperate women and emphasizes the unnatural nature of their
motherhood. It is evident that this industry is growing wider by using the vulnerability of
the poor. India being a developing country with strong values and ethics is still not
comfortable with the surrogacy culture in its society. It is still considered a matter of
shame and grief for a contemporary Indian couple to be unable to have a child of their
own and at the same time women who make their womb available for surrogacy are
looked down. Yet for their economic survival, women of the lower classes tend to practice
surrogacy, without being open about it in the society. The opponents of surrogacy argue
that this practice is equivalent to prostitution and by virtue of that similarity it should be
disallowed on moral grounds. Surrogacy contracts are dehumanizing and alienating since
they deny the legitimacy of the surrogate’s perspective on her pregnancy. Surrogate
mother tries to avoid developing a special bond with the child in her and views the
pregnancy as merely a way to earn the much needed money. The payment for bodily
services degrades the surrogate mother and exploits her reproductive organs. During the
pregnancy period, when the surrogate mother is busy looking after the child in her womb,
her husband will have no attachment or emotional bond with the foreign body. She will be

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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

unable to attend the sexual needs of her married life and this can upset her marital
relations with her husband. The researcher here suggests that a Government Committee
should be set up to assess if the couple is in actual need of surrogacy or not, i.e., whether
the couple is actually infertile or just opting for surrogacy without any kind of infertility. If
the surrogate mothers are easily available at low cost, that does not mean that in this hi-
tech world, the working couples who have no time for sex but have handsome packages in
hand or the working women who do not want to de-shape their bodies as it will deprive
them from earning and she may suffer from losing her figure and beauty, This has been
realized from the cases of the two Khans from Bollywood.8
Therefore, it is recommended by the researcher also that there should be legal
control over such an activity so that this commercialization of the wombs is not converted
into an open market at it is taking shape presently. Another possibility is that many Indians
equate surrogacy with sex work. This is partly due to a lack of information, people are not
aware of the reproductive technologies which separate pregnancy from sexual intercourse.
The popular media, television and movies add to this misconception. Almost all portrayals
of commercial surrogacy in the media equate surrogacy with sex; an infertile wife agrees
to bring a sex worker home who is then impregnated by her husband through normal
intercourse, as was seen in the Bollywood movie ‘Chori Chori Chupke Chupke’. But they
are all ready to bear this stigma as it is their own choice, as said by one of the interviewed
surrogate mother at the Akanksha Infertility Clinic by the researcher. Another surrogate
described as to how becoming a surrogate allowed her to pay off a substantial part of the
debt accrued by her alcoholic husband.
The Managers of Akanksha Infertility Clinic described commercial surrogacy as a
mutually beneficial arrangement allowing childless couples the opportunity to become
parents and the surrogate women a chance to earn extra income for their families. Dr.
Nayna Patel, the gynaecologist who runs Akanksha Infertility Clinic, when had a talk with
the researcher on 11th June, 2014 told her that the positives of surrogacy far outweigh its
negatives. It just needs to be done correctly and in a transparent manner with emphasis on
the medical treatment. Dr. Nayna also told the researcher that she is particular about who
qualifies to be a surrogate and which couple can opt for surrogacy. For instance, if a
couple comes to her and say that they are too busy to go through with pregnancy as their
8
Shah Rukh Khan opted for surrogacy and Aamir Khan’s wife Kiran Rao opted for surrogacy as Kiran did
not want to de-shape her body figure and spoil future prospects of her career.
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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

career is more important, then she out rightly rejects them as unfit for undergoing the
procedure of surrogacy. The main consideration here is that the couple needs to have a
genuine medical problem that leaves only surrogacy or adoption as an option for them to
have a child of their own. In one case, the woman had a kidney transplant, was fertile but
was not allowed to carry a child in her womb. Dr. Patel even does not entertain single
parents for surrogacy, as is also not recognized by the Law Commission of India in its
recommendations in its 228th Report. The most important thing in this whole procedure is
that the woman undergoing such pregnancy needs to be medically fit to carry a child. The
woman needs to be a party to it by her own wish and will, should be between the age
group of 21 to 35 and her immediate family members (husband, in-laws, parents) need to
approve it before she signs up for surrogacy. Therefore, all these issues should be taken
into account by the legislature while framing the law to make it a comprehensive
legislation to check upon the commercial aspect involved in such pregnancy and to avoid
the exploitation of the surrogate mother, commissioning parents, genetic parents, the
doctors, hospital, nurses etc.
Thus, commercial surrogacy remains a highly stigmatized issue in India where
surrogates have a tendency to keep the pregnancy secret from the world, as reproduction is
considered acceptable only within marriage and if taken outside the domestic sphere for
financial gains, it may be seen as a ‘dirty work’ or ‘baby selling’ or ‘womb renting’. The
researcher here suggests that altruistic surrogacy should be preferred upon commercial
surrogacy, which will help in reducing the commodification and exploitation of poor
Indian women. This can be achieved only when the Indian Parliament enacts a law
regarding the control of such pregnancies for commercial purposes. The enactment of the
law is now becoming a dare necessity because of the fact that foreign couples are flogging
in India and are utilizing the services of such women who are easily available at cheaper
costs.

(Neha Bahl)

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“Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

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“Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

“Surrogacy: A Bane or Boon”

Published in
(Legal Desire Quarterly Journal Vol-1, Issue 1, October, 2013, ISSN: 2347-3525O)

“Surrogacy: A Bane or Boon”

Page | 14
 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

By: Neha Bahl 230

The gift of motherhood regrettably is not distributed evenly by God to every woman.
The importance of fertility in human beings is relied on men and women, their fertility to
produce children to carry on the family line, as life exists because of procreation. To celebrate
this power of procreation many religions practice fertility rituals, where the power of
procreation is honoured by worshipping fertility Gods such as Lord Shiva and Lord Kartikeya.
In Greek Mythology, ‘Eros’ was the primitive God of lust, love and intercourse and was
worshipped as a fertility deity. Fertility rituals and fertility symbols such as Shiva Lingam, is
the most powerful fertility symbol in Hinduism consists of the critical union of Shiv-Parvati,
dominates the Hindu religious practices. 231
Ideally, creature has empowered all living beings with the power of production or
reproduction. But the destruction, deviation or extinction of this special feature of fertility is
considered as a curse for the individual and for the entire family and because of known and
unknown natural and scientific effects, this special feature can be found in a vegetative stage
and the requirement is to get the solution of the problem specifically for human beings.
Reproductive problems are not new rather common in all. Some are curable and some cannot
be cured and this state of human existence is considered pathetic since long. Sometime men
are found with reproductive problems and sometime women. For instance, during the epic age
of Mahabharata, Pandu and Dhritarashtra were having such problems and “Niyoga” was the
solution which was adopted, which may be considered as “In Vitro 232-Fertilization” today. It is
also believed that Gandhari the wife of King Dhritarashtra conceived, but her pregnancy
remained prolonged for nearly two years. At the end of this period as described by Bhagwan
Vyasa, she delivered a mass of material that contained 101 normal cells which when put in a
nutrient medium grew up full term as 100 male children – the Kauravas – and one female
child, called Duhsheela. Same is the case with women such as ‘Sarah’ who was found with
problem in conceiving, her maid servant ‘Hagar’ was laid with her husband ‘Abraham’ to bear
a child for the infertile Sarah, which may be called as ‘surrogacy’ in today’s scenario. This all
may be considered as traditional prevalence of surrogacy in India. In fact these types of
arrangements have been in existence since long. 233
The inability to procreate is commonly considered a personal tragedy and a curse for the
couple, creating an impact on the entire family and even the local community. Infertility refers
to the biological inability of a person to contribute to conception. The World Health
Organization has described ‘infertility’ as the inability to conceive a child. A couple may be

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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

considered infertile if after two years of regular sexual intercourse, without contraception, the
woman has not become pregnant. 234 In most developing countries, women are blamed for
infertility, resulting in the social stigma of childlessness, even if they are not the cause for the
same. This may be because in many cultures, womanhood is defined through motherhood and
women usually carry the blame for the couple’s inability to conceive. Childless women are
frequently stigmatized, resulting in isolation, neglect, domestic violence and polygamy. On the
other hand, not only female infertility, but also the majority of male infertility in developing
countries is caused by infections of the male genitourinary tract. It is believed that more than
80 million couples suffer from infertility worldwide, the majority being the residents of
developing countries as compared to the Western societies. This may be because developing
countries encounter lack of facilities at all levels of health care. Developing countries have a
large reservoir of infertility problems, of which bilateral tubal occlusion is the most important,
which is caused due to previous pelvic infection, a condition that is potentially treatable
through assisted reproductive technologies. It is mainly caused by sexually transmitted
diseases, postnatal or post-abortal infections and pelvic tuberculosis etc. Traditionally, the
surrogate mother was usually a close relative who was looked after and taken care of as there
was no financial obligation involved in the process. However, with the times changing and
relatives not readily available to suffer the discomfort and pain involved, the services of
surrogate mothers have assumed pecuniary overtones. The problem of infertility is a serious
one in our society and the social stigma involved includes abandoning of wives. Thus,
surrogacy is being resorted to widely as a solution to infertility because one or both of the
partners may suffer from infertility problems. The infertile couples who are not able to
conceive a child of their own take the help of reproductive technologies like artificial
insemination, in-vitro fertilization/test-tube baby and surrogacy, which have become a ray of
hope for these couples. These reproductive technologies are treated as a remedy for many
problems and offer a wide range of choices, which have reached new dimensions in this era of
globalization.
The surrogacy arrangement is made between a couple, where either of whom is
infertile and a surrogate mother. In such an arrangement, the surrogate mother agrees to be
artificially inseminated with the male sperm, to bear a child and to give up all her parental
rights and to transfer physical custody of the child to the commissioning couple on the birth of
the child. Thus, the use of human surrogate mothers who receive fertilized ova and carry it

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 “Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

until birth is now a reality and is being practiced globally. The major reason is the urge to have
one’s own flesh and blood in their progeny.
The best example of the same is that of Kanupriya alias Durga, the world’s second and
India’s first IVF baby, who was born in Kolkata on 3rd October, 1978 about two months after
the world’s first IVF child was born in Great Britain on 25th June, 1978. America celebrated
the birth of its first IVF-conceived baby Miss Elizabeth Carr born in Norfolk, Virginia on
December 28, 1981 and since then surrogacy has become one of the mainstream options for
childless couples across the world, who have a strong desire to have a child of their own but
do not desire to adopt one. Such couples resort to surrogacy because of medical conditions
that prevent natural childbirth. Such conditions include infertility, danger of the pregnancy
harming the woman or the child etc.
But now-a-days in the practice of surrogacy, one new practice has evolved where
financial attraction or gain is shown to the surrogate and in spite of her unselfish concerns she
becomes interested in monetary gains, even sometimes at the cost of life and health of the
reproductive subject. The surrogate mother receives financial reward for her pregnancy on the
relinquishment of the child which means business of body or body related parts or products.
Surrogacy arrangement has attracted the poverty stricken population of India because of
economic necessity. The absence of specific laws prohibiting commercial surrogacy is also
posing a great difficulty. The desire to earn a livelihood through surrogacy arrangements have
led to the deterioration of the health of the surrogate mother, which is of utmost importance
and one cannot visualize its long term consequences. The repeated pregnancies can even affect
the cardio-vascular health of the poor illiterate woman, which she may not know. Her health
may be satisfactory during the pregnancy because of the money and care provided by the
commissioning parents, but her health may not be that good in future. Thus, the human right to
health in a surrogacy arrangement involves the question of health of the surrogate mother, the
surrogate child, the genetic parents and the commissioning parents. In India, women are
generally not as healthy as they are in developed countries due to the poor nutrition levels
since childhood. Thus, the talk about their right to health, human rights or reproductive rights
becomes meaningless. It seems that the remedy of surrogacy to the basic problem of infertility
is generating new problems, which seems sometime more complicated and risky than the
original problem in itself.
Surrogacy has become a very knotty issue in India due to non-enactment of laws on
the subject. Anand town in State of Gujarat is a hub of surrogate mothers. Not only this,

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Indore city in Madhya Pradesh, Pune, Mumbai, Delhi, Kolkata and Thiruvananthapuram are
also emerging as surrogate centres because many childless foreigners from all over the world
are flocking here due to low cost, less restrictive laws, lack of regulation of ART clinics and
easy availability of poor Indian surrogate mothers. Generally, surrogacy arrangements are
drawn up in a random fashion and can be exploitative especially since surrogates are mostly
from weaker socio-economic sections of the society. It is essential that the practice of
surrogacy should be legally regulated to prevent victimization of both the surrogate and
intended commissioning parents.
This research article tends to highlight that India is in an urgent need of
comprehensive legislations on the subject which can regulate and can have a check on the use
and misuse of surrogacy arrangements. It is apparent that surrogacy is increasing as an
industry in India and many clinics are providing these services to foreign couples and also to
Bollywood heros and heroines who do not want to compromise their career which is likely to
be jeopardized due to maturity and de-shaping of the body of the female and they find it easier
to give their eggs and sperms and hire a womb on rent. These clinics work as commission
agents in between the purchaser and donor/seller of the sperms or eggs.
It is high time for the Indian Parliament to study in details the national and
international perspectives on surrogacy and to understand the root cause of the problem and
provide a comprehensive legislation including the rules and regulations for combating and
controlling the use and misuse of surrogacy practices in India. The focus needs to be given on
legalizing altruistic surrogacy and at the same time prohibiting commercial one. It is submitted
that it is advisable to protect the society from onslaught of capitalism over Asian poverty and
stop the exploitation of poor women being used as machines.
The researcher has also conducted a thorough analysis of the guidelines provided by
the Indian Council of Medical Research (ICMR), the draft Assisted Reproductive Technology
(Regulation) Bill and Rules 2008 prepared by the Government of India (which is yet to be
passed by the Indian Parliament), the recommendations of the Law Commission of India 235,
all point out that surrogacy arrangement shall continue to be governed by contract amongst
parties, which shall contain all the terms requiring consent of surrogate mother to bear child,
agreement of her husband and other family members for the same, medical procedures of
artificial insemination, reimbursement of all reasonable expenses for carrying child to full
term, willingness to hand over the child born to the commissioning parent(s),etc. However,
such an arrangement should not be for commercial purposes. The surrogacy arrangement

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should also provide for financial support for surrogate child in the event of death of the
commissioning couple or individual before delivery of the child, or divorce between the
intended parents and subsequent willingness of none to take delivery of the child.
In 2008, the Supreme Court of India in Baby Manji’s case236 has also held that
commercial surrogacy is permitted in India with a direction to the legislature to pass an
appropriate law governing surrogacy in India and thereafter, giving due regard to the
directions of the apex court, the Government of India has presented Artificial Reproductive
Technology (Regulation) Bill, 2008 in the Parliament, which is still pending and is expected to
come in force very soon.
Thus, a number of issues relating to technological, medical, physical, moral, ethical,
emotional, biological, and socio-legal etc. are involved in a surrogacy arrangement. These
aspects need a scientific investigation in an interdisciplinary approach. Though, artificial
insemination or non-coital procreation is against the order of the nature, but it is a boon to the
childless parents to satisfy their desire of parentage with the help of technology. The irony is
that, certain unfair practices are accompanying surrogacy resulting in its misuse, which needs
to be curbed and regulated through the enactment of proper laws in India.

Foot Notes
230. Ms. Neha Bahl, LL.M. (NET), Ph.D. (Law) Research Scholar, Subharti Law College, Meerut
231. http://vinayaghimire.hubpages.com/hub/fertility-symbols-and-fertility-rituals-in-hinduism; last visited
on 20/09/2013; time 11:00 am (IST); place Meerut, Uttar Pradesh, India.
232. ‘In-vitro’ means outside the living body and in an artificial environment.
233. Historically the first child born through such arrangement was ‘Ishmael’. The second and the third
known births occurred in Sumer-Mesopotamia in the middle of the 18th century B.C. in the family of
Jacob, Abraham’s grandson. This problem was also experienced in 1790 although most of the world
probably did not know that this process was in existence. The first case of surrogacy/artificial
insemination occurred in United States using a donor’s sperm. One can also find the mention of births
by such arrangement in the regulations of the famous Code of Hammurabi, which dates back to about
1772 B.C. The child born from such a relationship assumed the throne only if there were no other more
legitimate nominees. Such relationship may be termed as traditional surrogacy which was common in
ancient Greece, Egypt and Rome.
An example of infertility from Quran which can be quoted is that of Zakariya (pbuh233) and his
wife Ishba. The Quran provides that everyone belongs to Allah. He creates what he desires. He bestows
male or female offspring on females or sometimes renders them barren. The Prophet has encouraged
Muslim men to marry those who are fertile. If for some reason the first wife is infertile then the option
to avail the choice of polygyny is one that is encouraged in Islam.
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234. http://www.who.int/topics/infertility/en/; last visited on 21/09/2013; time 09:00 am (IST); place Meerut,
Uttar Pradesh, India.
235. 228th Report of Law Commission of India on “Need for Legislation to Regulate Assisted Reproductive
Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy”;
http://lawcommissionofindia.nic.in/reports/report228.pdf; last visited on 25/09/2013; time 3:10 pm
(IST); place Meerut, Uttar Pradesh, India.
236. AIR 2009 SC 84.

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