“SURROGACY: JUDICIAL AND LEGISLATIVE RESPONSE IN INDIA”
The proposed long overdue
Surrogacy Bill, 2016 presents some restricted practices among relatives as
donors and encourages for donation. It further limits the choices to
heterosexual Indians who are infertile for not less than 5 years. However, the
Bill does not allow strangers to be the donor as well as unmarried persons
cannot be the recipient of the benefit of surrogacy. In this regard, Indian Supreme
Court in laxmi Kant pandey gave some relevant directions for adoption. Moreover,
in baby manji Case, the court highlighted the absence of regulations in the
field of surrogacy. In the above backdrop, this paper attempts to make a
descriptive analysis of surrogacy in India from Judicial as well as legislative
“Born Not From
Our Flesh But Born In Our Hearts, You Were Longed And Loved From The Start.”
What strikes one’s mind and heart
after hearing the word “surrogacy”. It come generally that ‘ when a women carries a baby for another
couple and gives up the baby at birth and called to be a surrogate mother’. To
move from emotional to moral and ethical aspect, it has become a social
challenge to curb the ill practices attached with it.
Since, the past decades,
commercial surrogacy has been grown tremendously raises and poses questions
before law, surrogacy issues and challenges in India. It is currently estimated
to be a $2 billion industry.In
order to regulate the surrogacy in India recently ‘the Surrogacy (Regulation)
Bill, 2016’ is presented before Parliament. The bill proposes to regulate
surrogacy in India by establishing national surrogacy board at Central level,
State surrogacy boards and appropriate authorities in states and union
proposed legislation ensures effective regulation of surrogacy, prohibit
commercial surrogacy and allow ethical surrogacy to the needy infertile
Indian couples. The major objectives of
the Bill are to regulate surrogacy services in the country, to provide
altruistic ethical surrogacy to the needy infertile Indian couples, to prohibit
commercial surrogacy including sale and purchase of human embryo and gametes, to
prevent commercialization of surrogacy, to prohibit potential exploitation of
surrogate mothers and protect the rights of children born through surrogacy. The
need for proposing this bill arrived when the case of laxmi kant pandey arrived.In
this the case was instituted on the basis of a letter addressed to the court by
a lawyer, Laxmi kant Pandey alleging that social organizations and voluntary
agencies engaging in the work of offering Indian children to foreign parents
are included in Malpractices. It was alleged that these adopted children were
not only exposed to long horrendous journey but they are also ultimately become
prostitutes and beggars. After this Writ was filled by child welfare agencies
under Article 32 of the Indian Constitution. After all this, the court laid
down the procedure to be followed in adoption of children by foreigners. The
Hon’ble court asserted in Para 8 of the judgement that, “while supporting
inter-country adoption, it is necessary to bear in mind that the primary
objective of giving the child in adoption being the welfare of the people, great
care has to be exercised in permitting the child to be given in adoption to
foreign parents, lest the child may be neglected or abandoned by the adoptive
parents in the foreign country or the adoptive parents may not be able to
provide the child a life of moral and material security or the child may be
subjected to moral and sexual abuse or forced labor or experimentation for
medical or other research and may be experimentation for medical or other
research and may be placed in worse situation than that In his own country”.
It further went on to give the
prerequisites for foreign adoption. It stated that “In the first place, every
application from a foreigner desiring to adopt a child must be sponsored by
social or child welfare recognized or licensed by the government of the country
in which the foreigner for taking a child in adoption should be entertained
directly by any social welfare agency in India working in the area of inter-country
adoption or by any institution or centre or home to which children are committed
by the juvenile court”.
The Supreme Court also insisted
the age within which a child should be adopted in case of inter-country
adoption. The Court also said that since there is no statutory enactment in our
country providing for adoption of a child by foreign parents or laying down the
procedures which must be followed in such a case, resort had to be taken to the
provisions of Guardian and Wards Act, 1890 for the purpose of felicitating such
Following this judgement, the
Indian courts gradually broadened the scope of adopting child to other
countries. The courts have also interpreted the word ‘custody’ to make adoption easier. The Bombay
High Court In re Jay Kevin Salerno(AIR 1988,Bom 139) treated that “where the
custody of a child is with an institution ,the child is kept In a private
nursing home it does not mean that the institution ceases to have the custody
of the child”.
Due to the cases on surrogacy
there was a need for a law on it and due to it only the “the Surrogacy
(Regulation) Bill, 2016” was proposed .The bill allows ‘a close relative, married
with at least one child of her own can only become surrogate mother and a woman
can be surrogate mother only once in her lifetime and cannot be paid’. The bill
also provides for who can be parents of surrogate child i.e. they should be
married for at least 5 years, with no
biological/adoptive child, live-in-partners, single parents, homosexuals, foreigners,
NRIs, PIOs are not allowed. If anyone contravene the provision then punishment
of 10 years imprisonment and fine of RS.10 lakhs can be imposed on him.
The recent proposed draft surrogacy
regulation bill, 2016, passed by the Health Ministry, was cleared by the Union
Cabinet on 24 August, 2016 and is set to be introduced in the parliament soon.
Within a span of one week only the draft bill received severe backlash, being
cited as discriminating and draconian.
The question of foreign surrogacy
became especially relevant after the case of baby manji yamada.
Articles 39 and 44 of the Indian
Constitution, call for the protection of children and youth from
material and moral exploitation. In an effort to evolve a uniform civil code,
the government of India introduced Adoption of Children’s Bill, 1972. Keeping
in mind the large-scale child trafficking in the world. But the Muslim opposed
it The Rights of the Child, 1989 convention requires that inter-country
adoption will receive only the last priority while searching for the foster
home. Like any other types of adoption, inter-country adoption can be
expensive, time-consuming and uncertain. It is very important to learn about
inter-country adoption by reading books, attending parent support group and
talking with people who has given a child in adoption or has taken a child in
adoption. If these aspects are taken care of then Inter-country adoption will
give thousands of families’ joy and satisfaction and it has already fulfilled
dreams of many.
The legislative responded in the
form of surrogacy bill, present striking points which are as follows:
i. To allow altruistic ethical
surrogacy to intending infertile couple between the age of 23- 50 years and
26-55 years for female and male respectively.
ii. The intending couples should
be legally married for at least five years and should be Indian citizens.
iii. The intending couples should
not have any surviving child biologically or through adoption or through
surrogacy earlier except when they have a child and who is mentally or
physically challenged or suffer from life threatening disorder with no
permanent cure. 
iv. The intending couples shall
not abandon the child, born out of a surrogacy procedure under any condition.
v. The child born through
surrogacy will have the same rights as are available to the Biological child.
vi. The surrogate mother should
be a close relative of the intending couple and should be between the age of
25-35 years. She can act as surrogate mother only once. The surrogate mother will carry a child which
is genetically related to the Intending Couple.
vii. An order concerning the
parentage and custody of the child to be born through surrogacy is to be passed
by a court of the Magistrate of the first class.
viii. An insurance coverage of
reasonable and adequate amount shall be ensured in favour of the surrogate
ix. National Surrogacy Board
shall exercise the powers and shall perform functions conferred on the Board
under this Act. The Board shall consist
of the Minister in-charge of the Ministry of Health and Family Welfare, as the
Chairperson, Secretary to the Government of India in- charge of the Department
dealing with the surrogacy matter, as Vice-Chairperson and three women Members
of Parliament, of whom two shall be elected by the House of the People and one
by the Council of State as Members.
x. The National Surrogacy board
and State Surrogacy board shall be the Policy making bodies and Appropriate Authority
will be the implementating body for the Act.
xi. The appropriate authority
shall comprise of an officer of or above the rank of the Joint Director of
Health and Family Welfare Department, as Chairperson, an eminent woman
representing women’s organization, as member, an officer of Law Department of
the State or the Union territory concerned not below the rank of a Deputy
Secretary, as member and an eminent registered medical practitioner, as a
member The surrogacy clinics shall be
registered under this Act after the Appropriate Authority is satisfied that
such clinics are in a position to provide facilities and can maintain
equipments and standards including specialized manpower, physical
infrastructure and diagnostic facilities as may be prescribed in the rules and
xii. No person, organization,
surrogacy clinic, laboratory or clinical establishment of any kind shall
undertake commercial surrogacy, abandon the child, exploit the surrogate
mother, sell human embryo or import embryo for the purpose of surrogacy.
xiii. Violation to the said
provision shall be an offence punishable with imprisonment for a term which
shall not be less than ten years and with fine which may extend to ten lakh
xiv. The surrogacy clinics shall
have to maintain all records for a period of 25 years.
provision-Subject to the provisions of this Act, there shall be provided a
gestation period of ten months from the date of coming into force of this act
to protect the wellbeing of already existing surrogate mothers.
SURROGACY: INTERNATIONAL PERSPECTIVE
The legal complexities of surrogacy
make it essential that potential parents seek legal advice both in their home
countries and abroad. Under this sub-head this paper present some of countries’
Laws and initiatives in this regards, which are as follows:
As social funding cuts hit across
Europe, access to infertility services decreases (and prices greatly increase).
As a result, increasingly more foreign couples are visiting Ukraine to arrange
for gestational surrogacy.
While Ukrainian legislation is quite
liberal, returning home with their child may present new problems because each
country has different laws regarding what is allowed or forbidden in regards to
surrogacy. Some countries ban surrogacy outright, including Germany, Sweden and
France. Authorities in the U.K. have also been known to present legal
Despite the growth in International
surrogacy, there is no international regulation of surrogacy or minimized
standards to which nations must adhere. Moreover, there are no international
conventions, or reciprocal arrangements for the recognition of the legal
parentage of a child. Thus, a parental order obtained, for instance, in
California will not be recognized in England.
Some countries demand evidence that at
least one parent of the child has a genetic relationship with the child, usually
by DNA testing, while other countries insist on seeing the legal release of the
child by the husband of any married surrogate (which makes the use of a single
surrogate mother more attractive). Where surrogacy follows a gifted embryo and
neither new parent are genetically linked obtaining citizenship and travel
document become far more difficult and protracted, even into U.S. In any event,
compliance with numerous regulations and formalities takes months and greatly
adds to the stress of the intended parents.
Altruistic surrogacy is legal in
Belgium, but commercial surrogacy is illegal. And although altruistic surrogacy
is technically legal, there is only one hospital taking in couples and there
are extremely strict rules to get in. This makes a lot of couples seek
treatment outside Belgium.
The German courts have held that surrogacy
is a breach of Article 1 of the German Constitution, which states that human
dignity is inviolable. To make a human being the subject of a contract is
impermissible under German law, including the use of a third party’s body for
the purpose of reproduction. The strict definition of motherhood under the
German Civil Code also makes surrogacy arrangements impermissible.
The popular image of the Netherlands
as a liberal bastion does not as yet extend to its approach to surrogacy. Altruistic
surrogacy is legal there, but commercial surrogacy is illegal. Entering or attempting
to attempt to enter a surrogacy arrangement can be punished with imprisonment.
Moreover, although altruistic surrogacy is technically legal, there are very
few hospitals taking couple and there are extremely strict rules to get in. This
makes a lot of couple seek their treatment outside Netherlands.
Surrogacy is banned there, but Sweden
recently took a step toward a possible lifting of its ban on surrogate
motherhood, when the Riksdag’s Committee On Social Affairs recently voted by a
wide majority on to authorize the government to carry out an inquiry into
surrogate motherhood. Surrogacy in Sweden is on the right track, but still a
very long way from liberalization.
SURROGACY DEBATE: STARTING POINT
i. In 2008, a Japanese doctor
couple commissioned a baby in a small town in Gujarat. The surrogate mother
gave birth to a healthy baby girl. By then the couple had separated and the
baby was both parentless and stateless, caught between the legal systems of 2
countries. The child is now in her grandmother’s custody in Japan but has not
obtained citizenship as surrogacy is not legal in Japan.
ii. In 2012, an Australian couple
who had twins by surrogacy, arbitrarily rejected one and took home the other.
iii. A single mother of two from
Chennai decided to become a surrogate mother in the hope that payment would
help her start a shop near the house. She delivered a healthy child, but her
hopes born little fruit for herself. She received only about Rs.75000 with an auto
rickshaw driver who served as a middleman, taking 50% cut. After repaying the
loans, she did not have enough money.
iv. On January 29, 2014, 26 year
old Yuma Sherpa died in the aftermath of a surgical procedure to harvest eggs
from her body, as part of the egg donation program of a private clinic based in
Comparative chart of various
Countries in relation to Commercial and Altruistic Surrogacy 
SURROGACY BILL, 2016:
CONTEMPORARY ISSUES AND CHALLENGES
The surrogacy bill, undoubtedly, a
welcome step but invites several issues and challenges. Some of the lacunas in
the bill are as follows:
i. If you didn’t have ‘close’
relatives who were willing to help?
Like in case:
!. You were two orphans who had chosen
to get married to each other and later discovered that one or both of you were
‘medically unfit’ to have children.
!.Maybe, you married against your
!.Maybe, you come from a small family
and there are no women who qualify as a surrogate mother, either due to age or
due to their physical ability to carry an embryo to term. Or maybe, since the
bill demands that a surrogate mother has to be married and have a child, they
don’t fulfill those requirements.
ii. If the fetus is discovered to have
a problem, what happens if the surrogate mother decides she does not want an
abortion for religious or emotional reasons? Will the parents, who are
compelled by law to ‘not abandon the child, born out of a surrogacy procedure,
under any circumstances’, find themselves capable of taking care of the child?
iii. What if the surrogacy results in
a girl child and the adoptive parents want an abortion? Will, given the
circumstances in India, the surrogate mother have a choice?
iv. What if the embryo implant results
in twins? Or triplets? And this makes the pregnancy risky for the surrogate
mother? What if the surrogate mother is advised bed rest for the duration of
v. The surrogate mother, according to
the bill, has to be a married woman with at least one child because it indicates
that she is able to carry a child to term. In the scenarios listed above, what
happens to her responsibilities towards her own family? What if she decides, at
that stage, that the surrogacy is demanding too much of her?
vi. If help is hired for her in such
situations, who pays for it? The surrogate mother/family or the couple who want
the baby, who according to the proposed bill, can only pay for medical care.
vii. What about post-natal care? To
what extent is the couple who want the baby responsible for it? What if the
surrogate mother slips into post-natal depression and needs long term care? Who
will take the responsibility?
viii. What if relations between the
surrogate mother/her family and the couple who want a baby/their family breakdown
irretrievably? What then?
ix. According to the legal contract
that is to be drawn between the would-be parents and the surrogate mother, the
child belongs to the parents. But have you thought of the emotional state of
the surrogate mother during this time? And what if she had donated her own egg
for the surrogacy? Wouldn’t the bond be even more strong and, under the
circumstances, even more painful?
x. The bill also proposes that a woman
can give birth to a surrogate child just once. But what if she’s been forced to
abort an earlier surrogate fetus, once or multiple times? What if she had been
unable to carry a fetus to term? Will she be forced to become a surrogate again
and again until a baby is delivered?
xi. Each pregnancy, whether it results
in a delivery or not, takes a physical and emotional toll on the mother.
xii. Many a times, the circumstances
are grim enough to override the fear of social stigma and even ostracisation at
the thought of a women carrying a child not created by the union of her egg
with her husband’s sperm.
xiii. Sadly, what the bill does is blatantly
ignore the “commercial” surrogate mother and the reason why they rent out their
Supreme Court asks Center to bring Commercial Surrogacy
within ambit of Law.
A bench comprising Justices
Ranjan Gogoi and N.V.Ramana expressed concern that various issues related to
commercial surrogacy are not covered under the law but the practice was still
In order to tackle surrogacy
problem in India and decided a case before the Supreme Court, the apex court
prescribes some guidelines, which are as follows:
Case: Laxmi Kant Pandey vs. Union of India, Air 1984 Sc 469:
i. Give child for adoption if not
in India then in Foreign so that he can grow in lovable environment and do not
become prostitute and beggar.
ii. Foreigner cannot directly
take the child from Agencies and Institutions, as they can in lieu of money sold
iii. Proper application of
foreigner for adoption must be accompanied by a home study report and the social
or child welfare agencies sponsor, it must be send along with recent photograph
of the family, marriage certificate of foreigner and his or her spouse as a
declaration concerning their health together with a certificate regarding their
medical fitness duly certified by a medical doctor, a declaration regarding
their financial status and also statement of declaration stating they are
willing to be appointed as guardian and want to adopt the child.
iv. The application of foreigner
will be accompanied by a Power of attorney in favour of officer of the social
or child welfare agency in India to whom it is requested to process the case.
v. Government of India shall
prepare the list of social or child welfare agencies licensed or recognized for
inter-country adoption by the government of each foreign country.
vi. If biological parents are
known, they should be helped to understand all the implications of adoption
including the possibility of adoption by a foreigner. After they relinquish the
child for giving in adoption, a period of 3 months should be allowed to them to
reconsider their decision. If it is not reconsidered then it is irrevocable.
vii. The agency or welfare agency
must be licensed or recognized by government of India or the government of
state in which it is operating.
viii. Every recognized social or
child welfare agency must maintain a register in which the names and particular
of all children proposed to be given in inter-country adoption. Child can be
given in adoption before it completes the age of 3 years. Child between 3-7 can
also be given and above 7 the wishes of child must be ascertained.
ix. Proceeding on application
should be held by the court in camera and they should be regarded as
Case: K.Kalaselvi v. Chennai Port Trust on 4 March 2013;
Ratio of the judgement: An
adoptive parent is no different from a commissioning parent, who seeks to
obtain a child via a surrogacy arrangement.
The word surrogacy can be
described in the form given below:
“S-Spectacular Journey; U-Unreal
To Most; R-Resulting In And; R-Reminding Us; O-Of The; G-Greatest Gift; A-A
Person; C-Can Ever Give Or Receive; Y-Yielding In Amazing Beauty”
Gift of child is the most
precious one for a couple. Those who are deprived of this wonderful gift always
feel inferior and frustrated. There are thousands of couples across the world
facing humiliation because of not having any child. Surrogacy is a wonderful
gift that would bring the big smile on their face. The development in medical
science and increased social awareness and acceptance has made it popular and
more and more couples are getting benefitted by it every year. The number is
ever increasing and countries like India are becoming a major centre for
surrogacy due to availability of surrogate mothers and legal flexibility. However,
the concept of surrogate motherhood is accompanied by a great deal of moral and
ethical controversy. The variety of legislative responses to enforcement of the
surrogate mother contracts suggests that there are no easy answers. Surrogacy
arrangements have different implications on different societies having distinct
culture, social values, religious and social set up etc. But human rights
issues relating to surrogacy arrangements have universal character. These
issues can be addressed by effectuating the basic human rights through
legislation. The human rights instruments should be translated in tune with the
current pace of assisted reproductive technologies. At the end it can be said
that even if surrogacy oversteps the natural ways of procreation, only those
who have been able to get children from it know the value of legitimacy of
surrogacy. At times, in a society like India, where barrenness is considered
incompleteness for a woman, people have no option, but to resort to it to live
peacefully in society. We cannot consider it against the unity of marriage, as
even adoption is legally permissible then why not surrogacy. Let us Regulate
Technology and not Human Lives…
B.A.LL.B.(H), 4th year
Law College Dehradun, Uttaranchal University, Dehradun.
Kant Pandey v. Union Of India, AIR 1984 SC 469 at , available at: https://indiankanoon.org/doc/551554/
(accessed on 8 February 2017 at 3:00pm)
re Jay Kevin Salerno, AIR 1988 Bom 139, available at: https://indiankanoon.org/doc/1915094/(accessed
on 8 February 2017 at 3:00pm)
Manji Yamada v. Union of India and Anr on 29 September, 2008, available at: https://indiankanoon.org/doc/854968/
(accessed on 8 February 2017)
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