A baby of a couple is like the beginning of all the things, wonder, hope and
a dream of possibilities. However in the current situation many couples are
deprived of giving birth to a new life due to different problems but science
never allow us to lose hope.
Surrogacy is an effective method to provide baby to a couple who can't withstand
the baby in their womb. In this process another women carries that baby in the
womb for 9 months and give birth to it. It is the agreement between the
intendment parents and the surrogate mother. It is basically a type of pregnancy
where a woman carries and gives birth to a baby for another woman who is unable
to do so due to any reasons. Off late this process has helped numerous people in
experiencing parenthood. Now days many celebrities have taken the advantage of
Surrogacy and welcomed their baby.
Moving further we need to know about modus operandi.
It involves the fusion of the eggs of a female with the sperm through medical
procedure to make an embryo. These embryos are then implanted in the uterus of
the surrogate mother who carries and eventually give birth to the baby. This
method is sought by both men and women wish to have a baby via Surrogacy.
It is broadly divided into these categories:
- Traditional Surrogacy
- Gestation Surrogacy
- Altruistic Surrogacy
- Commercial Surrogacy
Traditional Surrogacy in the method the Surrogates mother get at artificially
insemination with the sperm of the father the surrogate then carries and
delivers the baby who then get raised by his / her legal parents. In traditional
Surrogacy the surrogate mother is considered as biological mother of the baby as
it was her egg that was fertilized. In some cases, parents also opt for a donor
sperm that is used to fertilize the eggs.
Gestational Surrogacy is a process where one person who did not provide the egg
used in a conception, carries a foetus through pregnancy and gives birth to a
baby for another person or couple.
Altruistic Surrogacy is the situation where the surrogate receive for her child
(although usually all expenses related to the pregnancy and birth are paid by
the intended parents such as medical expenses, maternity clothing and other
Commercial Surrogacy is a form of Surrogacy in which a gestational carrier is
paid to carry the child to maturity in her womb and is usually restored to by
well off infertile couples who can afford the cost involved or people who save
and borrow in order to complete their dream of being parents. It is sometimes
referred to by the emotionally charged and potentially offensive terms "womb for
rent", "outsourced pregnancies" or "baby farms".
Why is that a need for a Surrogacy act or regulatory law related to Surrogacy
Surrogacy is often creating "stateless children" with disputed question of
citizenship, nationality and parentage being recorded on official documentation.
Unfortunate surrogate children have also been abandoned without any legal
recourse. Besides, there is no mechanism or specialist judicial forum geared to
handled complex issues arising from Surrogacy.
A regulatory environment through an appropriate legislation is much need to
check malpractices and curb the unethical Surrogacy trade which haunts the scene
in the backdrop of financial transaction changing hands. India has emerged as a
hub for infertility treatment attracting people from the world over with its
state of the art technology and competitive prices to treat infertility due to
prevailing socio economic in equities under privileged women found an option to
rent their wombs and thereby.
However, compensated Surrogacy is illegal in many countries while the USA allows
for anyone to complete the Surrogacy process and allows for compensated
Surrogacy it's become the top destination for international Surrogacy, sites
today. Some countries popular for Surrogacy like US, India, Thailand, Ukraine
and Russia however it is prohibited in many countries like France, Germany,
Recently, a question arose in the Delhi high court why marital status age &
gender where the criteria for being allowed to commission on not commission
Surrogacy in India? The female petitioner said that she already had a child but
the trauma of her first child birth experience and her need to juggle work with
child care persuaded her that Surrogacy would be a better option for the second
child. But under the provisions of the Surrogacy Act, she was denied chance for
The Surrogacy (Regulation) Bill and ART (Regulation) Bill, 2014
The current Surrogacy regulation bill is Bill 2020 while it was adopted in India
for the first time in year 2014. Union cabinet has approved the Surrogacy
regulation bill. The amended bill is reformed version of the draft legislation
which was passed by Lok Sabha in 2019. But its provision including that only a
close relative of couple can be of Surrogate mother had muted criticism.
The Surrogacy regulation bill 2019 was introduced by the Ministry of Health and
Family Welfare in Lok Sabha on July 2015. It was passed in Lok Sabha on 5th
august 2019. This bill bans commercial Surrogacy and allowing altruistic
Surrogacy while commercial Surrogacy is still prohibited because it includes
sale and purchase of human embryo and gametes. Ethical Surrogacy to Indian
married couple, Indian origin married couple, and Indian single women will be
allowed on fulfilment certain conditions.
The bill allows a willing woman to be a surrogate mother and could benefit
widows and for divorced women besides infertile Indian couples. It provides for
the constitution of Surrogacy boards at the national as well as state level to
ensure effective regulation. It seeks to allow ethical altruistic Surrogacy to
the intending infertility Indian married couple between the ages of 25 to 50
years for female.
Only Indian parent couples can choose Surrogacy in the country. It makes it
mandatory for the couples to obtain a certificate of essentiality and also a
certificate of eligibility before going ahead with Surrogacy. It also provides
that intending couple should not abandon the child from out of Surrogacy under
any condition that a new born child shall be entitle to all rights and
privileges that are available to a natural child. The bill also seeks to
regulate, the functioning of Surrogacy clinics.
All Surrogacy clinics in the country need to be registered by the appropriate
authority in order to undertake Surrogacy on its related procedures. The bill
also provides various safeguard for surrogate mothers one of them is insurance
coverage. It also specifies that no gender selection can be done when it comes
to Surrogacy. The couple should not have a child of their own.
The law allows single women to resort to Surrogacy but she should, either be a
widow or a divorced women between the age of 35 to 45 years single men are
however not eligible. In Surrogacy only the medical experience and insurance
coverage is provided by the couple to the surrogate mother during pregnancy. No
other mandatory consideration will be permitted.
On September 30, 2015, A drafted Bill titled "The Assisted Reproductive
Technology (Regulation) Bill, 2014" has been circulated in public domain for
general public/ Stakeholders inviting suggestions/ comments within 45 days.
Under the definition clause of The Surrogacy regulation Bill, 2014 in section 2
states that "Assisted Reproductive Technology" means techniques that attempt to
obtain a pregnancy by handling or manipulating the sperm or the eggs outside the
human body, and transferring the gamete or the embryo into the reproductive
Position of law under ART (Regulation) Bill, 2014Under the ART (Regulation) Bill, 2014, ART, Surrogacy, gamete, and Surrogacy
agreement have been defined as follow:
- "Assisted Reproductive Technology" with its grammatical
variations and cognate expressions, means all techniques that attempt to
obtain a pregnancy by handling and manipulating the sperm and eggs outside
the human body and transferring the embryo into the reproductive tract of
- "Surrogacy" means an arrangement in which a woman agrees to a
pregnancy, achieved through assisted reproductive technology in which
neither of the gamete belongs to her or her husband with intention to carry
it to term and hand over the child to the commissioning couple for whom she
is acting as a surrogate.
- "Gamete" means sperm and female eggs.
- "Surrogacy Agreement" means a contract between the persons
availing of ART and the surrogate mother.
The Bill describes the constitution of authorities to regulate ART. A 23 member
National Advisory Board comprising of various experts is sought to be created
with the functions to promote ART related issues. State boards are recommended
in states and state registration Authorities are sought to be created for
Proceedings before the National and State Boards are deemed to be Civil Court
Proceedings for limited purposes and are sought to be treated as Judicial
Proceedings even though the constitution of the National or State Advisory Board
have no Judicial Officers, Judges or Designated Courts as constituents.
The Bill talks of procedures for registration and complaints in respect of
Assisted Reproductive Technology Clinics. The bill also talks of the duties of
such clinics and also talks of Sourcing, Storage, handling and record keeping
for Gametes, Embryos and Surrogates. Some chapter relates to regulation or
research on Embryos. Also discusses rights and duties of patients, donors,
surrogates and children in extensor.
The Rights and Duties are well defined and determination of the status of the
child is laid out in detail. The duty to take children born through Surrogacy
outside of India to the country of the parties' origin or residence is spelt
The bill also talks of offences and penalties for contravening the provisions of
the Act and also there are some miscellaneous section which talks of maintenance
of records, power to search and seizure, power to make regulation and rules. The
Act is stated to be in addition to and not in derogation with any other law for
the time being in force.
Anomalies in the ART Regulation Bill, 2014
The Bill has neither designated, nor authorised nor created any Court or
Judicial Forum to resolve issues which will require adjudication in problems
arising out of Surrogacy, ART and Surrogacy Agreements. This is a very big
lacuna in the Bill. There has to be a designated or a defined Court, as in the
Hindu Marriage Act or the Guardian and Wards Act, which has to be vested with
the authority in law to decide disputes arising under the proposed law.
The National and State Advisory Boards are only authorities who will promote
ART, Surrogacy Arrangements and related procedures. The proceedings of these
Boards have been deemed to be "Judicial Proceedings" before Civil Courts for
limited purposes. There is no designated Court, Judicial Officer or Judge
appointed, created or nominated for this purpose. Therefore, how far these
Advisory Boards will be able to perform the "Judicial Proceedings" and which
will be "deemed to be a Civil Court", remains to be seen.
It talks of complaints and duties and more ART related issues. It also talks of
offences and penalties which carry serious consequences. But the question is who
will adjudicate these and decide them to impose penalties. Who will determine
these "offences?" Unless and until a Court is designated, created or nominated,
all this will remain inconclusive, indecisive and incomplete.
There are already serious issues of determining parentage, nationality, and
issuance of passport, grant of visas and problems of disputed parentage. There
is no Forum defined, designated or created which will look into these problems
or determine how they have to be decided or dealt with.
Baby Manji Yamada's case
IT 2008 (11) SC 1501 is an eye opener.
Thereafter, the Israeli gay couple's case is a follower in the sequel of problem
areas. Embassies, foreign missions and High Commissions of different countries
in India are looking at a Resolution on these issues by means of a law in the
But parentage, nationality, passport, visa and related issues remained
undetermined in the law in making. There is already a conflict on adoption and
Guardianship as non-Hindus cannot adopt in India. Therefore, would it not be
better to make it mandatory to create a Court for adoption/Guardianship purposes
before a child is removed from India to a foreign country. This will not only
provide a system for uniform application to check malpractices but will also
conclusively ascertain rights of parties in case of a dispute. Moreover, all
Embassies, Foreign Missions and High Commissions will be guided by a proper
Another anomalous situation has been created by the new Medical Visa
Regulations, 2012, which debar foreign single parents, gay couples and unmarried
partners from coming to India on tourist visas for commissioning Surrogacy
arrangements. There are other requirements also stipulated by the Ministry of
Home Affairs in their letter of 09 July, 2012 which are not part of the ICMR
Guidelines of 2005 and the ART Bill, 2010.
These inconsistencies need to be reconciled and a uniform policy needs to be
underlined by the Government of India with regard to Surrogacy arrangements in
India. More particularly, the rights of foreign single persons, gay couples and
unmarried partners for entering into Surrogacy arrangements in India must be
clearly stipulated as the ICMR Guidelines, 2005 and the ART Bill, 2010, are
inconsistent and contradictory to the new medical visa guidelines, 2012. The ART
Bill, 2014 contemplates that Surrogacy shall be available to all married
infertile couples thereby, debarring single persons from Surrogacy.
It proposes to disallow Surrogacy for foreigners but makes it permissible for
Overseas Citizens of India (OCIS), People of Indian Origin (PIOS), Non-Resident
Indian (NRIs) and foreigners married to Indian citizens with two years of
marriage who will have to obtain a Medical Visa for Surrogacy in India.
In the light of the above thoughts, after the above inconsistencies are suitably
resolved it may be necessary to create a procedure for adoption, guardianship,
determination of rights etc. to be mandatory through a nominated Court,
designated Court or specified authority to be compulsorily followed in case of
any inter-country Surrogacy arrangement.
Likewise, this Forum, Court, Authority can also be the Adjudicating authority to
determine disputes decide offences and determine penalties under the Bill
Without this, the proposed Act is not meaningful, is inconclusive and will only
create more uncertainty leading to more disputes and inconsistent views.
Indian Law on Surrogacy
Surrogacy in India is legitimate for married couples/ unmarried couples/ single
persons because no Indian law prohibits Surrogacy. To determine the legality of
Surrogacy agreements, the Indian Contract Act would apply and thereafter the
enforceability of any such agreement would be within the domain of section 9 of
The Indian Code of Civil Procedure (CPC). Alternatively, the biological parent/s
can also move an application under the Guardian and Wards Act for seeking an
order of appointment for a declaration to be declared as the Guardian of the
In the absence of any law to govern Surrogacy, the 2005 ICMR Guidelines apply to
all couples/ single persons. A child born through Surrogacy must be adopted by
the genetic (biological parents). However, this may not be possible in case of
Non-Hindu foreign parents who cannot adopt in India but can be appointed as
guardians under the Guardians and Wards Act.
Under the ICMR Guidelines, there would be no bar to the use of ART by single
women and a child born will have all the legal rights on the woman or man as the
case may be. However, under the new medical visa regulations 2012, foreign
single parents, gay couples and unmarried partners cannot come to India for
Surrogacy arrangements; this seems to have been done in the ART Bill, 2014,
which has been circulated amongst general public and stake holders on September
30, 2015 for comments and suggestions.
Under section 10 of the Indian Contract Act, 1872 all agreements are contracts,
if they are made by free consent of parties competent to contract, are for a
lawful consideration, are with a lawful object, and are not expressly declared
to be void. Therefore, if any Surrogacy agreement of a married/ unmarried
couple/ single parent satisfies these conditions, it is an enforceable contract.
Thereafter, under section 9 of the Code of Civil Procedure, 1908 prescribing
that the Courts may try all civil suits unless barred, it can be the subject of
a civil suit before a Civil Court to establish all/ any issues relating the
reliefs prayed for.
Other issues, which have now cropped up for opinion are as to whether a single
parent or unmarried couple can be considered to be the custodial parent of a
surrogate child. As of today, it may be stated that a single parent or unmarried
couple can be considered to be the custodial parent by virtue of being the
genetic or biological father of the surrogate child born out of a Surrogacy
Japanese Baby Manji Yamada's case,
JT 2008 (11) SC 150 and the Israeli
gay couples case who fathered the child in India are clear examples to establish
that this is possible. Under the ICMR Guidelines dealing with legitimacy of
children born through ART (which were the basis of the claim in the Japanese
baby's case in the Supreme Court), this claim can be made. However, only in a
petition for guardianship under GWA and/ or in a suit for declaration in a Civil
Court, the exclusive custodial rights can be adjudicated by a court of competent
jurisdiction upon appreciation of evidence and considering all claims made in
What would be the status of divorced biological parents in respect of the
custody of a surrogate child? Essentially, this is a question which will require
determination in accordance with the Surrogacy agreement between the parties.
There would be apparently no bar to either of the divorced parents claiming
custody of a surrogate child if the other parent does not claim the same.
However, if the custody is contested, it may require adjudication by a court of
competent jurisdiction as per provisions of Civil Procedure Code.
Would biological parent/s be considered the legal parent of the children?
In answer to this question it can be stated that the biological parents would be
considered to be the legal parents of the children by virtue of the Surrogacy
agreement executed between the parties and the surrogate mother. Under the ICMR
Guidelines dealing with legitimacy of the child born through ART, it is stated
that "a child born through ART shall be presumed to be the legitimate child of
the couple, born within wedlock, with consent of both the spouses, and with all
the attendant rights of parentage, support and inheritance. A single man/ woman
can have a child by ART through Surrogacy.
Even in the 2010 Draft Bill and Rules, a child born to a married couple, an
unmarried couple, a single parent or a single man or woman shall be the
legitimate child of the couple man or woman as the case may be. However, under
the medical visa regulations 2012, foreign single parents, gay couples and
unmarried partners cannot come to India for Surrogacy arrangements This seems to
have been done in the 2014 version of the ART Bill, which however, cannot be
commented upon since the 2014 version of the ART Bill is not in public domain
and is said to be pending consideration before the Parliament.
That as per the Law Commission of India Report, in its conclusions and
recommendations, it has been stated that in case the intended parent is single,
he or she should be a donor to be able to have a child through Surrogacy.
Clearly, in the views of the Law Commission, there is clear recommendation to
the Government of India to permit Surrogacy for single parents.
Challenges to Restriction on Surrogacy by Single, Married and Unmarried
In the face of the above position of fact and law enunciated by the ICMR
Guidelines, ART Bill, 2014 and the medical visa guidelines, 2012, which reflect
the policies, decisions and the mandate of the Ministry of Health and Family
Welfare, who are competent and authorised to opine and decide such matters,
there is now a proposal to restrict Surrogacy to infertile Indian couples only
with the exception of OCIS, PIOS, NRIS and foreign citizens married to Indian
nationals with a two year marriage.
Clearly, there was initially no bar on Surrogacy in India for foreign single
persons or foreign unmarried couples till 2012, but now the proposed ART Bill,
2014, is a clear bar for foreign single persons and foreign unmarried couple to
have the benefit of Surrogacy in India. This is despite the fact that Section 41
of the Juvenile Justice (Care and Protection of Children) Act, 2000, permits
intra and inter country adoptions to a person irrespective of marital status
subject to the approval by a competent court which may allow a child to be given
Further, under the Guidelines Governing Adoption of Children, 2015, made under
Section 41 (3) of the Juvenile Justice (Care and Protection of Children) Act,
2000, and notified by the Ministry of Women and Child Development, Government of
India on July 17, 2015, in respect of orphan, abandoned or surrendered children,
"any prospective adoptive parent, irrespective of his marital status", "single
female" and "single male" shall be eligible to adopt a child both for intra and
inter-country adoptions. There is thus no bar on single parent foreign adoptions
subject to the exception that a single male person shall not be eligible to
adopt a girl child.
Who are all allowed to make use of services of surrogate mother?
A certificate of infertility of either one or both of parents from District
Medical Board definitely needed. In order of parentage custody of the Surrogate
child passed by a magistrate court. Insurance covers for the surrogate mother.
However, it does not allow Single women or men or gay couples to go for
Surrogacy. In eligibility certificate mandates that the Couple fulfil the
certain conditions. They should be Indian Citizens have been married to at least
five years. The female must be between 23 to 50 years and male 26 to 55 years
and they cannot have any surviving children (biological, adopted children on
Surrogate) but this would not a child who is mentally or physically challenged
or suffers from life threatening disorder or fatal illness.
As far as making is concerned, Surrogacy could be an option for those who
eagerly need it as we all know there are always two sides of every coin hence,
it all depends on the human activities or their nasty intentions. In India, we
need strong laws for Surrogacy as there are many hurdles in the path of
receiving a baby. The unscrupulous middle men involved themselves into the scene
and some women also understood it as a means of earning money.
Many times the surrogate mother gets exploited by the agents and is paid less.
Sometimes even the parent couple refuses to take the baby if they get some
deformities. There some cases, has been recorded in India where parents refused
to get the Baby.
In 2008 a Japanese couple began the process with a surrogate mother in Gujarat,
but before the child was born they split with both of them refusing the child to
takes the child.
Baby Manji Yamada V. Union of India
Dr. Ikufumi Yamada, an orthopaedic surgeon attached to a Tokyo hospital and his
former wife Dr. Yuki Yamada came to India in 2007 and had chosen a surrogate
mother in Anand, Gujarat, when Dr. Yuki Yamada could not conceive; the couple
had chosen a surrogate mother in Ahmadabad to carry the child. They signed an
arrangement of Surrogacy with Dr. Nayanaben Patel of Akansha IVF Centre, an
Ahmadabad hospital on 22 November, 2007.
The Surrogacy agreement was entered into between the biological father and
biological mother on one side and the surrogate mother on the other side.
Pritiben Mehta, the wife of Brijeshbhai Mehta also from Ahmadabad, signed the
agreement to serve as the surrogate mother. The fertilisation process of Yuki's
egg with Ikufumi's sperm was completed in Tokyo and the Embryo was brought to
Ahmadabad to be implanted in the surrogate mother.
The embryo transfer was done at Dr. Naynaben's Hospital on 22 November, 2007 in
the presence of the Japanese Couple. After that they left for Tokyo and the
child was born on 25th July, 2008 in Anand, Gujarat. However, a month before the
child's birth, Yuki divorced her husband Ikufumi Yamada, and disowned the child.
On 3rd August, 2008, the child was moved to Arya Hospital in Jaipur following a
law and order situation in Gujarat and she was provided with much needed care
including being breastfeeding by a woman who had given birth to a baby girl as
the surrogate mother in the Yamada case had also abandoned the baby Manji
Yamada. A friend of Ikufumi Yamada, Mr. Kamal Vijayvargiya, a jeweller from
Jaipur and settled in Tokyo was instrumental in getting a baby shifted to RA
Hospital in Jaipur and also to get Ikufumi's mother to come down and take care
of the child.
It transpired that the biological father Ikufumi had come to take custody but
had to return to Japan before its visa expired. Custody was denied even the
grandmother (Ikufumi's mother) after a Habeas Corpus petition was filed in the
Jaipur bench of the Rajasthan high court by an NGO, Satya, who claimed that in
the absence of Surrogacy laws in India, custody of child should not be given to
the grandmother. To complicate things further before the Rajasthan high court,
neither the biological father nor the surrogate mother had moved an application
seeking custody of the child. The municipal council of the Anand in Gujarat had
issued a birth certificate to the baby indicating the name of the genetic
Against the direction of the Rajasthan high court, the grandmother, Emiko Yamada
filed a writ petition in the Supreme Court. It was contended in the supreme
court that under the national guidelines for Accreditation, Supervision and
Regulation of ART Clinics in India, 2005 (the ICMR, 2005 guidelines) the
surrogate child of its genetic parents.
Legal Issues was legitimacy of child born through ART
In accordance with the pleading before the Supreme Court of India when the mater
came first before it on 14th August, 2008, the court by an interim order allowed
the grandmother to take care of the baby until the legal wrangles were sorted
out by the court.
Ultimately on 29th September, 2008, the Supreme Court of India disposed of the
writ petition filed by the grandmother with directions that if any grievance or
complaint relating to the child; it can be vented in accordance with the
Commission for Protection of Child Right Act, 2005. This was with regard to the
allegation of the Jaipur NGO "Satya" that the child was amended as neither the
natural parents nor the surrogate mother was taking care of the child.
In a relation to grievance of the grandmother to permission to travel to Japan
including issuance of a passport to the child was under consideration of the
central government and that no orders had been passed in that regard, the
Supreme Court directed if a comprehensive application as required under the law
is filled, it was to be disposed off expeditiously.
All preceding pending in the High Court relating to the matter which had been
dealt with stood disposed off by the Supreme Court order of 29th September, 2008
following the directions of the Supreme Court, the regional passport office in
the Jaipur on 17th October, 2008 issued an "identity certificate to the baby
allowing her to travel to Japan to meet her father Ikufumi Yamada. However the
baby's citizenship status still remained unclear. Reportedly the baby Manji
Yamada and her Japanese grandmother Emkio Yamada, who had been looking after
her, left India for Japan on 1st November, 2008.
Rather than the Indian Parliament catching up to make a law to regulate the
unscrupulous Surrogacy trade, the Medical Visa Regulation have stepped in
temporarily to do what the law ought to have done. But, they also infringe on
the rights of single Forgein parents. Instead of permitting surrogate children
to be born in India with risk of being stateless persons and being denied entry
into Forgein countries where their commissioning parents resides, it is apt and
necessary that such unethical practises leading to such disastrous situations
must be pre-empted and prevented.
Decent instances of surrogate children from Germany, Japan and Israel born in
India and leaving upon court intervention should well make legislators think of
enacting a strict Surrogacy monitoring law. The Assisted Reproductive Technology
(Regulation) Bill, 2014 itself has legal lacuna, lacks creation of a specialist
legal authority for determination and adjudication of legal rights of the
parties, in addition to falling in conflict with existing family laws.
These pitfalls should not become a graveyard for a law which is yet to be born.
Surrogacy needs to be checked and regulated by a proper statutory law. The law
makers must enact a law to put checks, control and regulatory steps in place
through a legislative mechanism. Surrogacy should be controlled by proper
legislative methods as existing in the case of inter-country adoptions.
Anomalies in matter of foreign parents and single foreign parent Surrogacy
compared to foreign couples and single parent adoption by foreigners must be
resolved to be made consistent and uniformed. The ART Bill, 2014 put in public
domain to general public and stack holders need to be discussed threadbare.
Hence the proper course would be a statutory law which looks at all prescriptive
and protect the right of all parties without infringing on the claims of others.
A fresh prescriptive is the call of the day for introspection.
- Abhinav Gupta, 5th Year Law Students - Manav Rachna University,
- Shobhna Bhushan, 5th Year Law Students - Manav Rachna University,