SURROGACY

SURROGACY LAWS IN INDIA: BOON OR BANE

Submitted to: Pavithra mam

Internship Coordinator

Submitted by: Architha Suresh

K.L.E Society’s Law College
 ABSTRACT

Nature has bestowed the beautiful capacity to procreate a life within women and regrettably it
is not been distributed evenly by God to every women. Right to reproduction is an innate
right of an individual. Surrogacy means to carry the child for the other woman who is not
capable of producing the one, due to certain complexities. It is that topic which is in talks
from the ancient times and is been known to almost every societies of the world. The major
types of surrogacy are Natural Surrogacy, Gestational Surrogacy, Commercial Surrogacy and
Altruistic Surrogacy. India allowed commercial surrogacy in the year 2002, but it is now
banned in the country. In the year 2008, the Honourable Supreme Court of India, by giving a
positive decision in the favour of surrogacy in the case of Baby Manji Yamada v. Union of
India and Another1 has thrown light on surrogacy to get a legal context in the country. Many
ethics have supported surrogacy to a greater extent by just treating it as a new technology for
producing children if they do not harm anyone in this process. The motive of the research is
to analyse the entire positive and negative aspects of Surrogacy, and finally to induce that it is
a bliss on the society. The researcher arrived at a conclusion that commercial surrogacy is a
good alternative than other types of surrogacy, it is a bliss to the society and surrogacy is
more successful concept in urban areas over the other treatments available for infertility.

1
Baby Manji Yamada vs. Union of India & Another. (2008) 13 SCC 518. Mukherjee,S. (2011). Legal and
Ethical Issues of Commercial Surrogacy: An Overview. Indian Legal Aspects of Commercial Surrogacy.
 1. INTRODUCTION

Nature awards us a wonderful ability to procreate life within a woman. It is observed that
every woman values the experience of parenthood. Unfortunately, there are a few women
who because of some physiological conditions cannot give birth to their own child. The
intense longing to become parents and to encounter the delights of parenthood drives them to
search for alternative options such as Artificial Reproductive Technology (ART), In-Vitro
Fertilization and Intra-Uterine Injections (IUI), and for a few, surrogacy presents itself as a
standout amongst the most reasonable alternatives. India having legalized commercial
surrogacy in 2002, slowly gave rise to a booming industry of foreign surrogacy requirements
and fertility tourism, so much so that commercial surrogacy was banned in 2015. The
question of foreign surrogacy became more relevant after the case of Baby Manji Yamada2.
In 2007, Dr. Patel working at the Akanksha Infertility Clinic arranged for Japanese couple
Ikufumi and Yuki Yamada to have a surrogate baby by Pritiben Mehta. Pritiben was
impregnated using a mix of Yamada’s sperm and an anonymous Indian woman’s egg.
However, subsequent to the impregnation, Yamada and his wife filed for divorce. None of
the Indian laws covered whose child the baby (Manji) was: the woman who donated the egg,
Pritiben, or Yuki Yamada. Furthermore, there was even a petition filed later in court that Dr.
Patel was running a child trafficking racket by abusing the lack of surrogacy laws and gaining
easy money by enabling surrogacy. Although the case was resolved and Baby Manji was
given to her grandmother Emiko, this, as well as the booming surrogacy industry, the easy
abandonment of children, and the exploitation of women who were forced to become
surrogates many times in order to sustain their family, led to the necessity of a bill.

2. SURROGACY

According to Black’s Law Dictionary, Surrogacy is ‘an agreement wherein a woman agrees
to be artificially inseminated with the semen of another woman’s husband.”

The New Encyclopaedia Britannica defines- ‘Surrogate motherhood’ as the practice in which
a woman bears a child for the couple to produce children in the usual way.

There are various types of surrogacy:-

Natural/Traditional/Partial Surrogacy: In this type of surrogacy, there is genetic relation of

embryo with surrogate and it is done with her own ovum. Commissioning father can donate
the sperm and becomes the genetic father of the child. In this the sperm can also be taken
from some third male person in the case of two female commissioning couples or the single
women also, can commission the child. The women can get pregnant through the ways like
sexual intercourse, intrauterine insemination (IUI) or In Vitro Fertilisation (IVF).3

2
Baby Manji Yamada vs. Union of India & Another. (2008) 13 SCC 518. Mukherjee,S. (2011). Legal and
Ethical Issues of Commercial Surrogacy: An Overview. Indian Legal Aspects of Commercial Surrogacy.
3
Nigam, A. (2013). Surrogacy: An Indian Perspective
Gestational/Full Surrogacy: In this type, surrogate acts as a carrier of embryo which is
genetically not related to her. The pregnancy is obtained by the IVF and implantation of
fertilised embryo is done in the commissioning parents or by some other anonymous persons.

Altruistic Surrogacy: In Altruistic Surrogacy, no financial benefits are given to surrogate.

There are only medical expenses given in monetary terms as compensation by commissioning
parents.

Commercial surrogacy: In this type of surrogacy, the surrogate enjoys compensation in

monetary terms for her womb given on rent.

3. SURROGACY LAWS IN INDIA: GIVING PROMINANCE

TO COMMERCIAL SURROGACY

Surrogacy is a business relying upon whether the surrogate mother gets any monetary reward
for getting pregnant and conveying a child for expected couples and giving up the child when
conceived, or not. In a commercial surrogacy assertion, the surrogate mother goes into a
comprehension with the proposed couple or a solitary parent where she consents to bear the
burden of pregnancy. As a result of her agreement to such a course of action, the surrogate
mother is paid a specific sum of the amount by the commissioning agent. India one of the
most favoured destinations for couples who search for a savvy and economic treatment for
infertility and as a result the whole branch of medical tourism is thriving in such surrogate
practice. Commercial surrogacy in India was sanctioned in 2002. Since its beginning then, it
has turned out to be one of the quickest developing industries in the nation. But then recently
with the Surrogacy (Regulation Bill), 2016 and 2019 commercial surrogacy has been banned
in India.

Key features of the Surrogacy (Regulation) Bill 2019:

 The Bill proposes to regulate surrogacy in India by establishing a National Surrogacy

Board at the central level and state surrogacy boards and appropriate authorities in
the state and Union Territories.
 The purpose of the Bill is to ensure effective regulation of surrogacy, prohibit
commercial surrogacy, and allow ethical surrogacy.
 While commercial surrogacy will be prohibited, including sale and purchase of
human embryos and gametes, ethical surrogacy for needy couples will be allowed on
fulfilment of stipulated conditions.
 It will also prevent exploitation of surrogate mothers and children born through
surrogacy.
 There will not be any financial implications, except for the meetings of the National
and State Surrogacy Boards and appropriate authorities, which will be met out of the
administrative budgets of respective department.
 3.1. Arguments in Support of Surrogacy
Arguments which are in support for bringing proper legalisation of surrogacy by the
legislatives are of great importance. The most powerful argument in support of surrogacy is
that it fulfils one’s dreams. Surrogacy can allow the couples to have children when they are
unable to produce them by the gifts of nature due to certain incapability’s or medical
complexities. They can have their child by the method of adoption, but then there will not be
any genetic/biological connection or relation between the parents and the children which
surrogacy provides easily. Surrogacy is a good option for them as they can have a genetic
linkage between their children. Surrogacy provides a reproductive liberty to the persons.

In countries like United States, there is a greater freedom, which is highly valued and
protected, to bear a child at the right time. Many women in the world participate willingly in
surrogacy to help couples in having their own child which is genetically connected to them.
They experience a lot of satisfaction in helping the intending parents. Commercial surrogacy
helps the poor, single or minority women as it provides them money for their womb taken on
rent by the commissioning parents for their child. They also open the door of happiness to the
families and adoptions of the children for establishment of their complete family. The money
which is provided to the surrogate mother can be used for the education of their real children,
for the home making etc. which will help in up bringing their status in the society.

3.2. Arguments Opposing Surrogacy

The arguments which are opposing the views of legalizing Surrogacy and Surrogate
Motherhood primarily are based on harms. There are thoughts of producing harms to the
child which is born from the womb of the surrogate mother, harms to the surrogate mother
herself by the repetitive births of the children from her womb. If she has her real genetic
children then it will also affect them all by this act of their mother and hence, it will cause
harm to the society as a whole. If there emerges any dispute regarding the child then it would
surely affect the child. If there are any anomalies or the child who is born is abnormal and
both parties i.e. the commissioning parents and the surrogate mother refuses to accept the
child then, it will surely affect the child because of this behaviour of the parties.

The child will also get harmed if there is high level of stress during the pregnancy of the
surrogate mother. The harm can also be extended to the reputation of the women by giving
her tags like vehicle for genetic perpetuations for others. This will affect the status of the
women in the society. It will also affect the traditional values of the families because of the
new concepts of motherhood in the society. The women who give their womb on rent for the
commercial purpose to make money for themselves, if, they are poor then they also can be
pressurised for Altruistic Surrogacy than Commercial Surrogacy to donate the child to
intending parents as a gift or service. In this way it will harm the society to a very large
extent.
 4. SURROGACY IS A BLISS TO SOCIETY AND
COMMERCIAL SURROGACY IS A GOOD ALTERNATIVE
WITH BENEFITS TO BOTH PARTIES.

India, which is considered to be the largest democratic country in the world, guarantees each
and every citizen, Fundamental Rights. Fundamental Rights also include the Human Rights.
So, every citizen of India enjoys the Human Rights and Fundamental Rights whether the
person is of upper class or backward class, whether a women or a child. Reproductive Rights
including Surrogacy has now been included in the International Human Rights. Surrogacy
further provides Right to Life under Article 21 of the Indian Constitution. After the birth of
the child, he is handed to the commissioning parents as there exists a genetic relation between
them and the child. Surrogate mother only acts as a contractor. This is all done for the
happiness of the commissioning parents because they are not capable of producing the child
by their own, due to some medical complexities. This type of technology is not less than a
blessing to the intended parents to have a child. For this, the surrogate mother should be
highly praised for sacrificing herself for the happiness of others because they give the
beginning of families.

India became the first country to allow the commercial surrogacy in the year 2002. India is
one of those countries which recognized the intended/commissioning parents to be the legal
parents of the surrogate child. In fact, the birth certificate is issued in the name of the
commissioning parents. The Hon’ble Supreme Court of India in the case of Baby Manji
Yamada vs. Union of India4 and another had also included commercial surrogacy in its
judgement. After this, there is a huge rise in commercial surrogacy. The estimated value of
reproductive tourism industry is around 25,000 crore INR. For foreigners, India has become
one of the most favoured destinations for the commercial surrogacy. In the study by
Confederation of Indian Industry, it has been found that around 10,000 couples from foreign
countries visit India for this purpose yearly. Out of this, near about 30% are single or
homosexuals. The cost for the surrogacy in India is relatively lesser when compared to other
countries. Generally, the costs range from 10-15 Lakhs.

By commercial surrogacy the surrogate women are benefitted the most because by getting the
compensation from the commissioning parents their status in the society is uplifted. The
money can be used for the quality education of their real children and also will improve their
quality of living. The surrogate mother sacrifices and bears all the suffering just for the sake
of the happiness of other persons i.e. commissioning parents. For the sake of the humanity
she should be awarded the monetary compensation for all the sacrifices she has done to give
birth to the child. Therefore commissioning parents should give the appropriate money for it.
Hence, it can be said that commercial surrogacy is a good alternative over the other types of
surrogacy for both commissioning parents as well as for surrogate mothers.

4
Baby Manji Yamada vs. Union of India & Another. (2008) 13 SCC 518. Mukherjee,S. (2011). Legal and
Ethical Issues of Commercial Surrogacy: An Overview. Indian Legal Aspects of Commercial Surrogacy.
 CONCLUSION

Therefore the opinion of the researcher is that Surrogacy is definitely a boon to the society
and that commercial surrogacy should be legalised. The justification for this is that since
every surrogacy is a contract, and since every contract generally includes a monetary
consideration, Surrogacy should also include a compensation which will be of great help to at
least certain category of people of the society. To conclude, as a reply to people who consider
surrogacy as equivalent to selling one’s own womb and as equal to prostitution, “Every job
has its own dignity”.