In this composition, we've concentrated on the current rules or regulations
governing surrogacy with a particular emphasis on the necessity for strict
legislation to control marketable surrogacy and the reasons why surrogacy
contracts are necessary in India. A contract in which a woman bears a child for
another couple is appertained to as a surrogacy.
Using burrowed eggs, sperm, or wombs to carry children for certain unfortunate
consorts is a scientific advance. multitudinous infertile couples go to India
from other countries where marketable surrogacy is permitted. In reality, the
argument centres on whether this scientific approach should be used for
commercialization or for purely philanthropic purposes. The temporary
association is grounded on the burrower's demand for a less precious inheritable
The intending parents work with a surrogate lady to help them become parents. In
return, the surrogate agrees to carry the kid to term and relinquish her
parental rights. after birth, the child's rights should be transferred to the
intended parents. Surrogacy is therefore a drawn-out and time-consuming process
that requires the partners' sincere cooperation and understanding.
A successful surrogacy partnership between the intended parent(s) or parents and
the surrogate mother requires a clear understanding of each party's obligations
and rights to the other. This kind of agreement may or may not be reduced to
paper. The agreement between the parties must be in writing in order for it to
Surrogacy: A Definition
"An agreement wherein a woman agrees to be artificially inseminated with the
semen of another woman's husband," according to Black's Law Dictionary.
A Definition Black's Law Dictionary defines a woman's consent as "an arrangement
wherein a woman accepts to be artificially conceived with the husband of another
According to ART Bill,
surrogacy is "an arrangement in which a woman consents to a pregnancy, obtained
through assisted reproductive technology, in which neither of the gametes
belongs to her or to her husband, with the intention of carrying it to term and
handing the child over to the person or persons for whom she is acting as a
Types Of Surrogacy
There are two types of surrogacy-traditional and gestational.
Legally, there are two types of surrogacy in India:
- Contract for Traditional Surrogacy:
In a traditional surrogacy, the surrogate mother is also the child's
biological mother. The agreement concerning the insemination procedure,
parental rights, financial arrangements, and other pertinent aspects is
outlined in the contract between the intended parents and the surrogate
- Gestational Surrogacy Contract:
In gestational surrogacy, the intended parents' genetic material or donor
gametes are used to develop an embryo, which is then transferred to the
surrogate mother via assisted reproductive technologies (ART). The contract
outlines the understanding and agreement between the intended parents and
the surrogate mother regarding the duties, pay, treatment, and parental
rights of the gestational carrier.
Legal Issues and Surrogate Mother's Human Rights:
- Altruistic Surrogacy:
In an altruistic surrogacy, the surrogate mother consents to become pregnant and
give birth on behalf of the intended parents without receiving any monetary
payment other than reimbursement for pregnancy-related medical costs. The
agreement is predicated on the surrogate mother's commitment to assist the
intended parents in achieving their goal of becoming parents. Since the
Surrogacy (Regulation) Act was passed in 2020, only altruistic surrogacy is
permitted in India for both Indian and foreign intended parents.
- Commercial Surrogacy (Prohibited in India):
In a commercial surrogacy arrangement, the surrogate mother is paid in addition
to being reimbursed for medical costs.
One of the most essential and fundamental questions, namely whether a woman has
a right to rent her womb or whether a woman has a right to be a surrogate, has
come to light as a result of the rising demand for surrogacy and the rising
number of women offering to act as surrogates. Examining this fundamental query
is crucial because the surrogacy procedure itself depends on the availability of
a surrogate mother. It should be emphasised that neither international nor
national law documents explicitly address a woman's right to act as a surrogate.
However, a wide range of related issues are taken into account in both
international and national human rights documents, including the right of
individuals to get married and start families, the right of individuals to have
children, to decide how many and how far apart to have them, as well as the
right of the State to infringe on these rights on the basis of public interest.
This is another area where laws in various nations with regard to surrogacy
While some nations have explicitly outlawed all forms of
surrogacy, others have legalised altruistic surrogacy, and still others have
liberally accepted both commercial and altruistic surrogacy. Consequently, there
is no agreement among various nations of the world in terms of the right to
surrogacy and womb rental.
Therefore, it is crucial to answer the fundamental question of whether there is
a right to be a surrogate, or right to rent a womb, in the lack of a specific
legal recognition, as well as what the legal foundation for such a right is.
Furthermore, it is crucial to ascertain the nature and scope of the right to
rent a womb or the right to be a surrogate in the contemporary human rights
jurisprudence of expanding notions of rights as well as the States' right to
intervene and restrict these rights on the grounds of public interest and
Many authors and legal experts contend that there is a right to rent
wombs, and that this right derives from three fundamental human rights, namely
the right to life, the right to family, and the right to privacy. the right to
bodily integrity, the right to own one's body, and the right to take advantage
of scientific and technological advancements. 
Some are as follows:
Surrogacy Contract 
- The right to personal liberty and right to privacy
- Property rights over human body and right to be a surrogate
- Duties of surrogate mother
- Duty to disclose details about the family, marital status, and number of children
- Duty to disclose hereditary or any other communicable diseases
- Duty to relinquish the right over the child and to hand over the child
A clear knowledge of each party's obligations and rights to the other is
necessary for a successful surrogacy relationship between the intended parent(s)
or parents and the surrogate woman.
An agreement of this nature might or might not be reduced to paper. The
agreement between the parties may be referred to be a contract if it is reduced
formally into writing to give substance to their intention. Therefore, it is
crucial to ascertain a surrogacy agreement's legal standing. Understanding the
definition and nature of a contract as they are understood by law in general,
and in India in particular, is crucial in this context.
A surrogacy agreement may be made between relatives or complete strangers. It
may change It could develop for genuinely altruistic motives, like love or
affection, or it might be for financial interests. Surrogacy agreements fall
into two categories: "commercial" and "non-commercial (altruistic)" agreements,
depending on the type of payments involved. In a commercial surrogacy agreement,
the intended parents agree to pay the surrogate a fee for her services.
The Goal and Intention of Surrogacy Contracts
Every surrogacy contract has as its goal and main objective safeguarding the
rights and interests of all parties involved in the surrogacy agreement.
Consequently, surrogacy. The rights and obligations of the parties involved must
be expressly stated in contracts.
Consequently, any surrogacy agreement may contain the following goals:
- To ratify an agreement between the surrogate mother and intended
parents/parents that the surrogate mother will consent to conceive via ART
and bring the child to term. This is so because the desire of the parties to
have children forms the basis of every surrogacy contract.
- To prove the surrogate child's pregnancy and paternity. The intended
parents enter into a surrogacy agreement with the intention of having their
own child and raising it.
In general, neither the surrogate lady nor her husband are eager to take on any
parental responsibilities. Therefore, neither anonymous sperm nor anonymous egg
donors are interested in having any parental responsibilities. Therefore, the
paternity and maternity of the kid can be established in detail by the surrogacy
- The surrogate consents to immediately handing over parental control of
the child to the intended parents following birth9. This is due to the fact
that the fundamental purpose of a surrogacy arrangement would be defeated if
the surrogate mother changes her mind after the kid is born and refuses to
give the child to the intended parents. Therefore, the surrogacy agreements
explicitly revoke the surrogate woman's parental rights in order to
guarantee that the intended parents would have custody of the surrogate kid.
- The surrogacy contract aims to reimburse the surrogate lady for her
services as a surrogate as well as for any medical costs associated with the
Nevertheless, in cases of commercial surrogacy agreements, the surrogate is
given both the surrogate's fee and the surrogate's medical costs
- Every surrogacy agreement imposes specific requirements on the surrogate
mother in an effort to control how she behaves while carrying the child.
This is done to ensure the foetus develops normally and to stop the surrogate mother
from engaging in any actions that would endanger the safety of the unborn child.
Finally, every surrogacy contract aims to address any unanticipated issues that
can come up during the surrogacy procedure. Such undesirable circumstances could
Every pregnancy contains hazards that could jeopardise the surrogate mother's
health or the unborn child's life. Therefore, the surrogacy contract stipulates
that the intended parents are responsible if the surrogate is harmed or the
surrogate child has any birth problems.
Important Surrogacy Contract Provisions.
A legally binding agreement is referred to as a contract. Therefore, not every
agreement is a contract; only agreements that are legally binding are considered
contracts. Therefore, the agreements must meet the requirements of a valid
contract in order to be an enforceable contract. All agreements are considered
to be contracts if they are freely entered into by parties who are legally able
to do so, for a legal consideration, with a legal goal, and are not expressly
disregarded by this declaration. According to Section 56, agreements between the
intended parents/parent and the surrogate woman are also a type of contract, and
as such, they must also meet the requirements of a valid contract in order to be
regarded as such.
The damaged party may pursue the following remedies under contract law:
Law Relating to Surrogacy
- damages for the loss caused by the breach;
- quantum meruit; or
- specified instances, a claim for specific performance.
Enforceability of Surrogacy Agreements
- The legal status of surrogacy differs according to the country.
- Surrogacy has been categorized internationally into three categories: free market, controlled, and outlawed.
- Some legal systems outright prohibit surrogacy, designating commercial surrogacy as illegal. On the other hand, certain jurisdictions permit surrogacy on a limited basis as a charitable act.
- Surrogacy is the only practice that is neither entirely prohibited nor controlled outside of India.
- It is assumed to be enforceable and completely valid because it is not expressly stated by law to be unenforceable.
The Surrogacy (Regulation) Act 2021
- Not every agreement is a contract; only agreements that are legally binding are considered contracts.
- Therefore, the agreements must meet the requirements of a valid contract in order to be an enforceable contract.
- Sections 10 and 56 of the Indian Contract Act, 1872 define the requirements for a legal contract in India.
- The surrogacy agreements between the intended parents/parent and the surrogate woman are a form of contract as well, and in order to be regarded as a valid contract, they must also meet the necessary requirements. In this regard, it is necessary to consider the surrogacy agreements in the context of the necessary components of a valid contract.
2021 The Surrogacy (Regulation) Act. Early in December 2021, the Indian
Parliament passed two legislation that would later become historic laws, the
Surrogacy (Regulation) Act and the Assisted Reproductive Technology (Regulation)
Act. The Surrogacy (Regulation) Bill was previously passed by the Lok Sabha, but
it was unable to be passed by the Rajya Sabha, sending it to a Parliamentary
Standing Committee for consideration.
The Surrogacy (Regulation) Act, 2021, which regulates the practise and procedure
of surrogacy, was approved by the President on December 25, 2021.
The following are the main components of the Surrogacy (Regulation) Act of
- Only charitable surrogacy is allowed, and commercial surrogacy is
- Unless registered under this Act, no surrogacy clinics may perform any
surrogacy. Activities, methods, or hire anyone who does not meet the Act's
- Every clinic that performs surrogacy treatments must submit an
application for clinic registration within sixty days of the date the
relevant authority appointed them. The registration must be renewed every
- No gynaecologist, embryologist, surrogacy centre, or other type of medical
professional shall practise or advocate commercial surrogacy in any way. Only
altruistic surrogacy is authorised by the 2021 Act.
- The intended couple must be a legally wed Indian couple, with the guy
being between the ages of 26 and 55 and the lady being between the ages of
25 and 50. They must also have never had a biological, adoptive, or
surrogate child before.
- The surrogate mother must be an Indian lady who plans to use surrogacy
and is between the ages of 35 and 45. Any woman who wants to become a
surrogate mother is only allowed to do it once in her lifetime.
- The National/State Assisted Reproductive Technology and Surrogacy Board
must provide a "Certificate of Essentiality/Infertility" when an intending
couple needs a surrogate due to a medical condition.
- The surrogate mother must be fully informed of all known side effects
and post-operative complications associated with such a surgery.
Additionally, the surrogate mother must provide written informed permission
in a language she can understand.
- For the purpose of registering surrogacy clinics under this Act, a
registry to be known as the National Assisted Reproductive Technology and
Surrogacy Registry shall be established. Every State and Union Territory
shall set up a similar Board for surrogacy concerns in addition to the
The Union Of India V. Baby Manjhi Yamada Case
In one instance, a Japanese couple, Dr. Ikufumi Yamada and his wife, travelled
to India to use a surrogate mother in order to conceive a child. Then, in
Gujarat, where this practise was invented, they hired an Indian woman to serve
as their child's surrogate mother. The couple had divorced as a result of
certain marital disagreements. However, the father wished to be the child's
guardian, but under Indian law, a single father is not permitted to adopt a girl
Therefore, in this case, the supreme court's justices Arijit Pasayat and
Mukundakan Sharma award the girl's grandma custody of the kid. As a result, it
was determined in this instance that the nation needs to have surrogacy rules
that are regulated.
Town of Jan Balaz V. Anand
In this instance, a German couple used Marthaben Immanuel Khrishti as a
surrogate mother, and she gave birth to twins. The two twins of this German
couple who formerly worked in the UK now require an Indian passport in order to
travel. The passport officials did not issue passports to the twins since they
did not have citizenship because the process involved legal litigation.
Furthermore, surrogacy was not legal in Germany. Although the Supreme Court
refused to issue the children with passports, it did award them an exit
permission, allowing them to be adopted and advocate for their rights in
Administration of Chandigarh v. Suchita Srivastava
The court ruled in this case that Article 21 of the constitution guaranteed
personal liberty, which includes the freedom of women to make reproductive
decisions. Along with that, it also contains a number of other rights, including
Women's rights to privacy, dignity, and physical integrity include the right to
bring a pregnancy to term and the right to give birth.
Union of India v. Justice Ks. Puttaswamy and Anr.
According to the court's ruling, it is against society's moral and ethical
standards to require an infertility certificate from the medical board, and this
fundamental right must be protected. Additionally, the court found that
obtaining and displaying the infertility certificate violates the right to
In Place The Practical Administrative And Legal Mechanisms Necessary To Achieve
Recognising The Legality Of Surrogacy Contracts
This essay's main contention is that, as has already been stated, modern
contract doctrines and theories typically support the contractual ordering of
the surrogacy contract. Nobody can guarantee that a healthy child won't be born,
as there are hazards involved in every natural pregnancy.
The same is true for
contracts in general, but surrogacy agreements in particular raise a number of
ethical and legal issues. As society and the legal system finally recognise
surrogacy arrangements as reputable commercial dealings. Even though we're
getting close, more work needs to be done before surrogacy contracts may be
fully accepted. The suggested approach and how these extra processes would
function if applied. These technological advancements are made to act
Action should be taken to rigorously abide by the following requirements and
make sure that the following things happen in order to reinforce the initial
agreement while avoiding the numerous traps of intrinsic contractual issues:
Both sides receive social, psychological, and any other necessary support; the
parties make provisions in their contract for a variety of potential outcomes,
including but not limited to the birth of a "sick" baby; and the contracting
parties receive independent, sufficient, and reasonable legal counselling and a
thorough and comprehensive medical explanation about the chances and risks.
In addition, those who want to be considered qualified as potential surrogate
mothers should meet certain requirements.
- First, A woman shouldn't be allowed to serve as a surrogate mother
unless she has already given birth to a kid naturally and is therefore
better equipped to comprehend the significance of her actions and the
intricacies of pregnancy and delivery.
- Second, a potential surrogate mother must undergo a psychological
evaluation to determine that she is fit for the challenge.
- Third. The potential surrogate mother must provide a physician's
affidavit stating that the doctor examined her and determined she was
mentally and physically fit for surrogacy and was informed of the physical
and psychological medical implications of doing so
- Last but not least, the prospective surrogate mother should be forced to
receive independent legal advice from a surrogacy contract specialist as
well as any extra counselling that may be required.
In the first place, a woman shouldn't be allowed to serve as a surrogate mother
unless she already
We can only adequately address the foregoing criticisms, reduce the likelihood
that the surrogate mother will change her mind during the pregnancy, ensure the
eventual enforcement of the surrogacy contract, and prevent further
disagreements by putting these suggested safety measures into practise. In
Enacting these requirements will also ensure that the informed consent is as
complete, accurate, and deliberate as possible because, as common sense and
previous experience have taught us, a greater understanding of the chances and
risks of unforeseen events will reduce inherent contractual issues.
In order to minimise any complications, the practise of alerting all potential
stakeholders should be extremely effective in practise. Additionally, the
following administrative action needs to be carried out: The prospective parties
should have adequate time to review and comprehend the medical information
offered to them before signing the contract. It is important to classify and
organise medical information into distinct groups. The ideal way to implement
such activities is to train trained specialists to make such decisions on an
To reduce the possibility of future litigation, the spouses of the contractual
parties�in particular, the surrogate mother�must provide their informed consent.
Additionally, the surrogate mother's partner should be made aware that if
something goes wrong, they can lose each other.
Surrogacy contracts in India necessitate a thorough comprehension of the related
ethical, legal, and practical issues. A framework for regulating surrogacy
agreements is provided by the Surrogacy (Regulation) Act, 2021, which places an
emphasis on the outlawing of commercial surrogacy as well as the protection of
all parties' rights and welfare. Surrogacy contracts can be entered into with
better clarity and confidence by adhering to the Act's requirements and ensuring
correct documentation, eligibility requirements, and ethical considerations.
This will enable a successful and legally recognised surrogacy experience for
- The laws that govern surrogacy around the world, however, have not fully addressed all of these difficulties. In order to guarantee surrogacy agreements' success as well as the numerous responsibilities and rights of surrogates should be clearly stated in order to protect the surrogate mother's dignity.
- It should be highlighted that the lady serving as a surrogate mother fulfils the wishes of couples and individuals who are medically and socially infertile and offers a priceless service. Therefore, it is crucial that any legislation dealing with the regulation of surrogacy effectively address the concerns of eligibility requirements to be a surrogate, as well as the rights and welfare of the surrogate mother.
- Prior to the surrogate pregnancy, the intended parents and surrogate woman will enter into a contract, or surrogacy agreement, in which they each specify their rights and responsibilities.
- To increase the likelihood that the outcome of the surrogacy will be a joyful new family rather than a protracted legal dispute, the state should pass appropriate legislation addressing surrogacy contracts.
- Author Aneesh V Pillai https://www.lloydlawcollege.edu.in/blog/legalisation-of-surrogacy.html last seen on 02/01/2023
- https://www.cancer.gov/publications/dictionaries/cancer-terms/def/surrogate-pregnancy last seen on 3/12/2022
- https://www.britannica.com/dictionary/surrogacy last seen on 01/01/2023
- By Virginia Frank - Types of surrogacy: https://virginiafrank.com/blog/different-types-of-surrogacy last seen on 01/12/2022
- By Mansi Choudhary http://probono-india.in/blog-detail.php?id=176
- By Yam Kumar Yonjan: Elements of valid contracts; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3437233
- Dr. Ranjana Kumari, https://wcd.nic.in/sites/default/files/final%20report.pdf
- DasGupta, S. (n.d.). Globalization and Transnational Surrogacy in India. Lexington Books 2014, United Kingdom
- https://www.researchgate.net/publication/340755352_SURROGACY_CONTRACTS_ISSUES_AND_CHALLENGES published by Author Aneesh V Pillai
- Guideline's for the approval supervision and regulation of ART clinics in India - https://www.thehindu.com/news/national/explained-surrogacy-assisted-reproduction-in-india-laws-offence-problems/article65443258.ece last seen on 04/12/2022
- National Guidelines For The Accreditation Supervision And Regulation Of ART Clinics In India -
Award Winning Article Is Written By: Ms.Bhakta Aishwarya Pradeep, LLM 2nd Year - Pes Modern Law College, Savitribai Phule Pune University Under The Guidance Of: Asst. Prof. Manisha Sagavekar
Authentication No: JU316663333228-15-0623