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The Imperative Role of Surrogacy Contracts in India: Protecting the Rights and Interests of All Parties Involved

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 resource.

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 be effective.

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.[1]

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 woman's sperm.[2]

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 surrogate."

Types Of Surrogacy[3]
There are two types of surrogacy-traditional and gestational.

  1. 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 mother.
  2. Gestational Surrogacy Contract:[4]
    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.

Legally, there are two types of surrogacy in India:
  1. 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.
  2. Commercial Surrogacy (Prohibited in India):
    In a commercial surrogacy arrangement, the surrogate mother is paid in addition to being reimbursed for medical costs.

Legal Issues and Surrogate Mother's Human Rights:
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 regulation vary.

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 morality.

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. [5]

Some are as follows:
  • 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

Surrogacy Contract [6]
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[7]
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 contract.
  • 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 surrogacy procedure.

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 occur because

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.[8]
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:

  1. damages for the loss caused by the breach;
  2. quantum meruit; or
  3. specified instances, a claim for specific performance.

Law Relating to Surrogacy

  • The legal status of surrogacy differs according to the country.
  • Surrogacy has been categorized internationally into three categories: free market, controlled, and outlawed.[9]
  • 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.

Enforceability of Surrogacy Agreements[10]
  • 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.

The Surrogacy (Regulation) Act 2021
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 2021:[11]
  • Only charitable surrogacy is allowed, and commercial surrogacy is outright forbidden.
  • Unless registered under this Act, no surrogacy clinics may perform any surrogacy. Activities, methods, or hire anyone who does not meet the Act's qualification requirements.
  • 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 three years.
  • 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 Centre.

The Union Of India V. Baby Manjhi Yamada Case[12]
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 child.[13]

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 Germany.

Administration of Chandigarh v. Suchita Srivastava[14]
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.[15]

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 privacy.

In Place The Practical Administrative And Legal Mechanisms Necessary To Achieve Recognising The Legality Of Surrogacy Contracts[16]

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 proactively.

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.[17]

  • 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 individual basis.

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 all parties.


  • 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.
  1. Author Aneesh V Pillai last seen on 02/01/2023
  2. last seen on 3/12/2022
  3. last seen on 01/01/2023
  4. By Virginia Frank - Types of surrogacy: last seen on 01/12/2022
  5. By Mansi Choudhary
  6. By Yam Kumar Yonjan: Elements of valid contracts;
  7. Dr. Ranjana Kumari,
  8. DasGupta, S. (n.d.). Globalization and Transnational Surrogacy in India. Lexington Books 2014, United Kingdom
  9. published by Author Aneesh V Pillai
  10. Guideline's for the approval supervision and regulation of ART clinics in India - last seen on 04/12/2022
  11. 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
Awarded certificate of Excellence
Authentication No: JU316663333228-15-0623

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