COMMERCIAL SURROGACY: AN AREA OF CONCERN

KEY TO ABBREVIATIONS
________________________________________________________________________

ICMR Indian Council for Medical Research

HFEA Human Fertilisation and Embryology Act

METHODOLOGY
________________________________________________________________________

The methodology for the completion of this project is purely doctrinal in nature based on
primary as well as secondary sources. The source involved in the research work of this
project includes references of books.

ACKNOWLEDGEMENT

_______________________________________________________________________

My Private International Law Project deals with “Commercial Surrogacy- An area Of

Concern”.
For completion of this project, first of all, I am highly grateful to Mrs. P. Lakshmi for
providing me with such an interesting and challenging topic to work on and guiding me
to his best effort by providing material for my research work.
I am grateful to my seniors and friends for their benevolent and kind help and support in
the completion of my project.
Last but not the least, I am thankful to my parents for providing me with excellent
opportunity of studying in this esteemed university under the supervision and guidance of
excellent faculty available here and for providing me with all necessary assistances for
completing my project.
Pratik Mukhopadhyay
VIII Semester

______________________________________________________________________1
 COMMERCIAL SURROGACY: AN AREA OF CONCERN

OBJECTIVE AND SCOPE

________________________________________________________________________

The objective and scope of this project is to discuss the jurisdiction of the courts and
choice of laws for deciding succession to immovable property in conflict of laws and
further to discuss the various judicial decisions, related Conventions and different
principles being laid down by the courts in England, India and some other common law
countries.

______________________________________________________________________2
 COMMERCIAL SURROGACY: AN AREA OF CONCERN

INTRODUCTION
______________________________________________________________
...Reproduction, parenthood and family are matters about which most people hold deep
convictions - convictions which are often based on a certain theological or moral
persuasion. Traditionally, these convictions reflect a socially constructed paradigm
…………where reproduction takes place within a permanent relationship between one
man and one woman to the exclusion of all others. This relationship has traditionally been
considered to be mysterious, sacred and personal. Consequently, there is ambivalence
about or discomfort with methods of human reproduction, which depart from this
traditional and 'natural' process of creating human life. One such method of human
reproduction which directly challenges traditional convictions concerning reproduction
and the formation of a family is surrogate motherhood…1

The above passage aptly encapsulates the various social, ethical and legal issues involved in a
surrogacy arrangement. In the modern world, Surrogacy is the buzz word for the infertile
couple. Surrogacy allows an infertile couple to carry forward their genetic lineage. It has
become a major option to the homosexual couples to have a family, or for that matter for a
single parent to have a child.2 But apart from its potentiality to relieve the childless couple of
the suffering, it is being seen also as a major source of income in the form of medical tourism.
All the above instances signify the relevance of surrogacy in the present situation and it calls
for a detailed study of the existing framework in India, in comparison to the outside world, to
regulate the surrogate practice.

1
Stuhmke, For Love or Money: The Legal Regulation of Surrogate Motherhood, Murdoch University Electronic
Journal of Law, 1995, Cited in, Swapnendu Banerjee, Gestational Surrogacy Contracts: Altruistic or
Commercial? – A Contract Theoretic Approach, < papers.ssrn.com/sol3/papers.cfm?abstract_id=894022 >, (Last
visited on 30.06.07)
2
See, First Surrogate Child of Single Father to Evolve Ethics Debate, Navhind Times, 4.10.05, (Mr. Amit
Banerjee, a divorcee, became the first single father to have a child on 3.10.05.)

______________________________________________________________________3
 COMMERCIAL SURROGACY: AN AREA OF CONCERN

NEED FOR SURROGACY LAWS

_________________________________________________________________
The need for surrogacy laws was felt with problem that arose with the Baby Manji case.
Baby Manji or 'Baby M', was born to a surrogate mother through invitro fertilization — using
a Japanese man's sperm and an egg from an unknown donor — at Anand in Gujarat on July
25. In less than a month, 'Baby M' has already seen fierce legal battles in two constitutional
courts, Rajasthan High Court and now in Supreme Court, where an NGO has raised questions
on legal propriety of surrogacy and the child's nationality. Anxious for the outcome are her
Japanese father and grandmother.
Surrogacy, worldwide, spins a web of emotional, social and legal issues. Its dictionary
meaning — 'a woman who bears a child for another person, often for pay, whether through
artificial insemination or by carrying until birth another woman's surgically implanted
fertilized egg' — itself sounds complicated.
If India's very own 'Baby M' is kicking up legal dust, 20 years ago, the famous 'Baby M' case
in New Jersey in US made the world sit up and take note of the issue of surrogacy.
In the US, the first formal agreement between a couple and a surrogate mother was signed in
1976. Probably, it was voluntary. Soon, brokers entered the scene and commercial
exploitation followed. In 1984, a New Jersey couple — William Stern and Elizabeth Stern —
contracted to pay Mary Beth Whitehead $10,000 to bear a child using artificial insemination
of William’s sperm. The baby was born, but Whitehead decided to keep the child and refused
the money. 3
In 1987, New Jersey Superior Court held the surrogate contract valid, tore the baby away
from Whitehead and allowed the Sterns to adopt it. Stripped of parental and visitation rights,
Whitehead appealed in NJ Supreme Court, which in 1988, except allowing the Sterns to keep
the baby, reversed much of the decision.4
It termed surrogacy contracts unenforceable, voided the adoption by Sterns and allowed
parental and visitation rights to Whitehead. 'Baby M' decision spurred most US states to
enact legislation on surrogacy. By 1995, as many as 19 states had laws designed to prevent or
discourage surrogacy, 13 barred enforcement of paid surrogacy contracts and 10 prohibited a

3
Dhananjay Mahapatra, Baby Manji’s Case Throw up the Need for Surrogacy Laws, Times of India ,25 Aug
2008,
4
'Baby M', 109 NJ 396, 537 A.2d 1227

______________________________________________________________________4
 COMMERCIAL SURROGACY: AN AREA OF CONCERN

third party, such as a lawyer or physician, from collecting compensation for arranging
surrogacy agreements.
In UK, surrogacy arrangements, not agreements, are legal. But they must be shorn of
commercial element. However, agreements between a surrogate mother and intended parents
is not legally enforceable, which means the agreeing parties must rely on each other's
promise to honour the word.
The UK law does not recognize surrogate baby's biological father. If a British surrogate
mother gives birth to a child for a foreign couple, then she alone would be treated as the legal
mother. If she is married, her husband would be the legal father. A foreign couple, intending
to take legal parenthood of a surrogate baby, must necessarily be domiciled in UK. If not,
then they could take the complication fraught adoption route. 5
If the 1988 'Baby M' case in the US forced many to put on legal thinking caps, then that year
saw Australia battling with societal eruptions over the Kirkman sisters case in Victoria,
popularly known as 'My sister's baby'. Linda Kirkman agreed to gestate the genetic child of
her older sister Maggie. The baby girl was handed over to Maggie and her husband at birth.
This had sparked much community and legal debate and soon Australian states attempted to
settle the legal complications in surrogacy. Now, commercial surrogacy is illegal, contracts in
relation to surrogacy agreement unenforceable and any payment for soliciting of a surrogacy
arrangement is illegal. 6
Surrogacy in US, UK and Australia costs between $55,000 to $65,000. Does it make India,
where medical and living costs are much cheaper, a hot destination for childless couples from
around the globe? No one knows, for there is no law to regulate or no system even to gauge
the extent of surrogacy incidents in the country.
Baby Manji's case, pending in the Supreme Court, presented a stalemate with the judges
asking "which law prohibits surrogacy" and the NGO countering it with "which law permits
surrogacy".

5
Ibid
6
Ibid

______________________________________________________________________5
 COMMERCIAL SURROGACY: AN AREA OF CONCERN

THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) BILL & RULES, 2008

___________________________________________________________________________

India may have been a booming centre of ‘reproductive tourism’ for several years, but it
took the complicated case of Japanese baby Manji — born to an Indian surrogate mother
— to bring into relief the fact that the law hasn’t managed to catch up with the
burgeoning baby industry. But this is set to change now, with India set to be the only
country in the world to legalise commercial surrogacy. The proposed rent-a-womb law, if
passed in the next parliamentary session, will clearly be one of the friendliest laws on
surrogacy in the world.

The first-of-its-kind Bill to control and monitor cases of surrogacy in the country has
been drafted by the Ministry of Health and Family Welfare, along with the Indian
Council for Medical Research (ICMR) — the ICMR posted the draft Bill earlier this
month to invite public comment over the following month. 7

What is unique about this proposed law is that unlike other countries, including the UK,
USA and France, surrogacy agreements between the two parties will be legally
enforceable. In addition, say experts, the new law protects everyone involved — genetic
parents, surrogate mother and the child.

Here is a brief description of the provisions of the proposed law in India and the existing
ones in other countries: 8

INDIA

• The new Assisted Reproductive Technology (Regulation) Bill & Rules, 2008,
legalises commercial surrogacy, stating that the surrogate mother may receive monetary
compensation for carrying the child in addition to health-care and treatment expenses
during pregnancy.

7
Vidya Krishnan, Baby biz: Indian set to trump global surrogacy, Oct 20, 2008, Available at
www.Expressindia.com
8

Ibid

______________________________________________________________________6
 COMMERCIAL SURROGACY: AN AREA OF CONCERN

• The surrogate mother will relinquish all parental rights over the child once the amount is
transferred and birth certificates will be in the name of genetic parents

• The prescribed age-limit for a surrogate mother is between 21- 45 years. The proposed
Bill also states that no surrogate mother can undergo an embryo transfer more than three
times for the same couple.

• Single parents can also have children using a surrogate mother.

• All foreigners seeking infertility treatment in India will first have to register with their
embassy. Their notarised statement will then have be handed over to the treating doctor.
The foreign couple will also state whom the child should be entrusted toin case of an
eventuality such as a genetic parent’s death.

UNITED KINGDOM

• No contract or agreement is legally binding. All expenses must be justified to the courts,
which can intervene and ask for proof if the expenses incurred by the genetic parents are
too high.

• In surrogacy cases, birth certificates carry the name of the surrogate mother, rather than
that of the genetic mother.

• Only married couples can take part in a surrogacy agreement.

• There is no age limit for surrogate mother.

UNITED STATES

• Compensated surrogacy arrangements are illegal in Washington, Michigan, Utah,

Arizona, New Mexico and New York. Additionally, four states in the US have held that
such contracts, while not illegal, are unenforceable.

• Compensated surrogacy is legal in Oregon, Texas and Arkansas. Texas requires the
surrogate mother to be a resident of Texas, but intended parents and surrogates resident in

______________________________________________________________________7
 COMMERCIAL SURROGACY: AN AREA OF CONCERN

any state of the USA can enter into a legal surrogacy arrangement in Arkansas. Provided
the child is born in Arkansas and that financial considerations are dispensed from the
state, the contract will be recognised by Arkansas courts and upheld.

• California is widely recognized as one of the friendliest jurisdictions for parties entering
a surrogacy arrangement.

*Currently, many states issue pre-birth orders placing the correct parent names on the
baby’s birth certificate.

AUSTRALIA

• In all states in Australia, the surrogate mother is deemed by the law to be the legal
mother of the child as well, and any surrogacy agreement giving custody to others is void.

• In some states, arranging commercial surrogacy is a criminal offence.

• Couples who make surrogacy arrangements in Australia have to complete a complicated

procedure of adopting the child, as they are not legally recognised as the birth parents.

CANADA & NEW ZEALAND

•Commercial surrogacy has been illegal since 2004, although ‘altruistic’ surrogacy is
allowed.

LEGISLATIVE FRAMEWORK OF SURROGACY: AN APPRAISAL

________________________________________________________________________
The biggest problem of addressing the surrogacy arrangements is the lack of universal
consensus regarding what should be the proper guidelines to address various issues that
has troubled the lawyers for over the years. For instance, in US, different States has taken
different stands. As, in India, we don’t even have a law but only the National Guidelines
for Accreditation, Supervision and Regulation of ART Clinics, which lays down the
guidelines for the surrogacy arrangements.

______________________________________________________________________8
 COMMERCIAL SURROGACY: AN AREA OF CONCERN

But prior to going to the various legal issues involving a surrogacy arrangement, let us
first discuss the nature of Reproductive Rights and whether they can claim Constitutional
Protection. Such analysis would help us to decide whether banning of surrogacy would
amount to denial of equal treatment. 9

COMMERCIALISATION OF SURROGACY
______________________________________________________________
Commercialisation of surrogacy is not only a legal issue but also an ethical minefield.
Surrogacy commercialized, commodifies a woman’s reproductive capacity and has the
capacity of exploiting vulnerable women. Surrogacy treats women as objects rather than as
valuable human beings by selling their capacity to bear children for a price. The
Transformative Effect Model, which describe morality and markets, substantiate this
claim.10 Even legislators and judiciary is also not too keen in enforcing commercial
surrogacy contracts. For instance, in England, all the surrogacy agreements are
unenforceable; vide s. 1A of Surrogacy Arrangement Act, 1985, which was introduced by
s. 36 of Human Fertilisation and Embryology Act, 1990. However, HFEA allows to pay
the surrogate mother a reasonable amount as reimbursement, medical expenses etc, which
shouldn’t exceed £ 10,000. Anything over reasonable expenses-£ 10,000- if given a
parental order can not be made [s. 30(7) HFEA]. And the payment also precludes adoption
[s. 57 Adoption Act, 1976].

ENFORCEABILITY OF SURROGACY CONTRACTS

______________________________________________________________

10
This model has three parts- (1) Making some things marketable can transform them, (2) markets turn people
into buyers and sellers, transforming identities and relationships and (3) societies should ensure that some things
fall outside market exchange. So, this model argues that motherhood should be kept out of the market. See, Erica
Borman, No You Can’t Buy My Baby, < www.rso.cornell.edu/bsc/ journal/journal_michelangelo.pdf >(Last
visited on 29.02.09)

______________________________________________________________________9
 COMMERCIAL SURROGACY: AN AREA OF CONCERN

The situations where the enforceability of contract would arise include situations like
surrogate mother refusing to hand over the child, commissioning parents refusing to accept
a child born with defects, etc. The biggest hurdle with the enforcement is the peculiar
nature of the contract. Besides it being a contract for personal service, the inability of the
surrogate mother to exercise sufficient control over the performance also creates many
problems. For instance, the mother have no control over the performance like whether the
child would be perfect or deformed, or for that matter the emotional bond between her and
the child.11

CONCLUSION

The Bill on surrogate motherhood focuses more on protecting private-sector interests than on
providing a regulatory mechanism. Commercial, though banned in several developed countries
for obvious reasons, may soon become a reality in India thanks to the joint efforts of private
medical establishments and the Union government. A Bill that seeks to legalise commercial
surrogacy has been drafted by the Indian Council of Medical Research (ICMR). 12
Urging ICMR not to rush with the Bill until a wider debate on it was conducted. The Bill
would promote medical tourism and encourage commercial interests at the cost of women’s
health. Not only did the Bill compromise heavily on the health and rights of women and
children, it also promoted invasive and expensive technology instead of encouraging adoption.
Above all, the Bill reinforced patriarchal as well as eugenic tendencies.
Moreover the lack of conformity between the laws of other countries with that of the proposed
law in India will result in a lot of discomfort especially in cases where enforceability of
contracts is in question, the applicable law will be in question & conflict of laws will occur
which would result in a lot of disputes in the sphere of Private International Law.

11
For more details refer to Ina Pantelejeva ,Are Surrogate Mother contracts Enforceable, ,<
www.ceeol.com/aspx/getdocument.aspx?logid=5& id=a65b3442-4c4c-453e-bd0e-cb55d42bc4eb >, (Last visited
on 28.02.09.)

12
T.K. RAJALAKSHMI Abetting surrogacy, Frontline, Volume 25 - Issue 22 :: Oct. 25-Nov. 07, 2008

______________________________________________________________________10
 COMMERCIAL SURROGACY: AN AREA OF CONCERN

BIBLIOGRAPHY
___________________________________________________________________________
.

BOOKS REFERRED-
• “Halsbury’s Laws of India: Competition Law & Trade Practices, Conflict of Laws,
Courts ”, Vol. 10, ed. 2002, Lexis Nexis Butterworths, New Delhi, p. 267.

• Atul M. Setalvad, “Conflict of Laws”, Lexis Nexis Butterworths, London.

• Castel and Walker, “Canadian Conflict of Laws”, 6th ed.

• Dicey, Collins and Morris, “The Conflict of Laws”, 12th ed., Vol.2, Sweet and Maxwell,
London.

• J. D. McClean, “Morris: The Conflict of Laws”, 4th ed., Universal Law Publishing Co.
Pvt. Ltd., Delhi.

• Nygh and Davies, “Conflict of Laws in Australia”, 7th ed.

• P. M. North and J. J. Fawcell, “Cheshire and North’s PIL”, 13th ed., Lexis Nexis
Buttherworths, Delhi.

CASES REFERRED-
Foreign Cases-
• 'Baby M', 109 NJ 396, 537 A.2d 1227

ARTICLES REFFERED-

• Swapnendu Banerjee, Gestational Surrogacy Contracts: Altruistic or

Commercial?–A Contract Theoretic Approach,<
papers.ssrn.com/sol3/papers.cfm?abstract_id=894022 ,

• Dhananjay Mahapatra, Baby Manji’s Case Throw up the Need for Surrogacy
Laws, Times of India ,25 Aug 2008

Vidya Krishnan, Baby biz: Indian set to trump global surrogacy, Oct 20, 2008, Available
at www.Expressindia.com

______________________________________________________________________11
 COMMERCIAL SURROGACY: AN AREA OF CONCERN

• Erica Borman, No You Can’t Buy My Baby, < www.rso.cornell.edu/bsc/

journal/journal_michelangelo.pdf >

• Ina Pantelejeva ,Are Surrogate Mother contracts Enforceable, ,<

www.ceeol.com/aspx/getdocument.aspx?logid=5& id=a65b3442-4c4c-453e-
bd0e-cb55d42bc4eb >,

______________________________________________________________________12