Surrogacy Chapter 5

Law and Policy on Surrogacy: A Socio-Legal Study in India 201
Chapter V
Comparative Global Trends
In most countries of the world, gestational surrogacy is legally prohibited. Where it
is allowed, it exists in the form of altruistic surrogacy, which is also regulated or restricted.
Contracts between parents and the surrogate mother are, in most cases, unenforceable. In
federations like the United States or the European Union, the unevenness of legal
restrictions or regulations by individual states or countries compounds the problem. The
United Kingdom sets an example regarding public policy and debate about surrogate
motherhood where although it is not a crime to be a surrogate mother or to be a
commissioning parent but commercial surrogate agencies and commercial actions of
surrogacy agents are prohibited1 and no surrogacy arrangement whatsoever is enforceable
in law.2 When a disagreement arises concerning handing over the child, the surrogate
mother has the legal right to retain the child whether she is a genetic or gestational
surrogate mother.3 Married couples who have commissioned a surrogate mother to carry a
child for them may apply for and be granted a parental order, which will declare them the
legal parents of the child, provided that one or both of them supplied the gametes for the
embryo.
The global scenario regarding surrogacy arrangements is a debatable issue with
every country having their own view and perspective on surrogacy. Surrogacy for
commercial purposes is currently prohibited in Australia, Spain and China. It is allowed
with restrictions in the United States, France and Germany. The countries such as Japan
and Netherlands have imposed a ban on surrogacy calling it renting of the
womb. In Australia, arrangement of surrogacy is considered as a
criminal offence. It permits altruistic surrogacy but commercial
1
The Surrogacy Arrangements Act, 1985, c. 49, 2, states that no person shall on a commercial basis,
among other things, initiate or take part in any negotiations with a view to the making of a surrogacy
arrangement, but that it is not illegal for a woman, with a view to becoming a surrogate mother herself, to
do any of the actions prohibited to be done on a commercial basis.
2
The relevant pieces of legislation are 2 of the Surrogacy Arrangements Act and the Human Fertilization
and Embryology Act, 1990, c. 37, 30, 36(1). The latter section renders surrogate motherhood contracts
unenforceable.
3
Human Fertilization and Embryology Act 30(1) (declaring that the court may make an order providing
for a child to be treated in law as the child of the parties to a marriage if the surrogate mother was
artificially inseminated with either (1) the biological mothers eggs or (2) both biological parents genetic
material).
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surrogacy continues to be illegal. Same is the case with Canada, where

altruistic surrogacy is legal while commercial surrogacy was made
illegal after 2004.
On the other hand, France is one of the few countries to make it
legal in 1994 keeping in mind the commercial gains that would follow
from the same. While Israel was the first one to have state controlled
surrogacy arrangement that would overlook the surrogacy practices
personally by the government. Although most of the industrialized
countries have rejected or have greatly restricted the practice of
surrogate parenting, to name a few, Australia, Sweden, Netherlands,
Denmark, France, Germany, Great Britain, Italy, Spain, Norway, Canada
and Switzerland etc. have incorporated the prohibition and
discouragement of this practice in their national laws.
Commercial surrogacy is neither prohibited nor it is allowed as legal in India. It is
legal in Ukraine, and California while it is illegal in England, many States of United
States, and in Australia, which recognize only altruistic surrogacy. In contrast, countries
like Germany, Sweden, Norway, and Italy do not recognize any surrogacy agreements.
India has become a favorite destination of fertility tourism. Each year, couples
from abroad are attracted to India by so-called surrogacy agencies because cost of the
whole procedure in India is as less as one third of what it is in United States and United
Kingdom (10-20 lakhs). Legislation on ART procedures differs between countries and is
only well regulated in Mexico and Brazil. In these countries, ART can only be offered to
married couples or those with a stable relationship.
In this research work, the researcher has listed out some of the
countries of the world to study the surrogacy law prevailing in the
world. But despite the prohibition and discouragement, some countries
still do not have any legislation regarding the status of the same.
5.1 United Kingdom:
In the United Kingdom, one of the few countries in Europe that allows surrogacy,
there was a great deal of controversy following the birth of a child in 1985 in a partial
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surrogacy arrangement and legislation called Surrogacy Arrangements Act, 1985, was
rapidly passed to limit but not ban the practice, Under this law, commercial surrogacy
arrangements were made illegal.4 After a great deal of discussion, the British Medical
Association agreed that it would not be possible or desirable to seek to prevent the
involvement of doctors in surrogacy arrangements, especially as the government does not
intend to make the practice illegal. This report set out guidelines for doctors intending to
treat patients by gestational surrogacy and made it clear that it should only be carried out
for exceptional reasons and after intensive investigation and counseling.5
A couple can apply to the court for a pre-birth order that will name the couple as
the legal parents of any children born to the surrogate.6
It is a requirement of the United Kingdoms Human Fertilization and Embryology
Act, 1990 that the welfare of any child born as a result of surrogacy treatment and the
welfare of any existing children must at all times be taken into account when considering
such treatment.7 This guides all the couples undertaking treatment through surrogacy in
the United Kingdom.
However, the Catholic Church is strongly against all forms of assisted conception,
particularly those associated with gamete donation and surrogacy. It treats it all as gravely
immoral and unacceptable. The clergies of the Church opine that these techniques infringe
the childs right to be born of a father and mother known to him and bound to each other
by marriage. They betray the spouses right to become a father and a mother only through
each other. The Anglican Church, on the other hand, is less rigid in its views and has not
condemned the practice of surrogacy. Surrogacy is not forbidden in the Jewish religion,
which is very much family orientated and which lays a duty on Jews to have children. In
the Jewish religion the child born as a result of surrogacy will belong to the father who
gave the sperm and to the woman who gave birth.8
4
See Section 2 (1), Surrogacy Arrangements Act, 1985.
5
Brinsden, Peter R., Gestational Surrogacy, Human Reproduction Update, 2003, Vol. 9, No.5, pp.483-491.
6
Byrn, Mary P. and Synder, Steven H., The Use of Prebirth Parentage Orders in Surrogacy Proceedings, 39
Family Law Quarterly 633 (2005) at 635.
7
See Section 34 (2) (b), Human Fertilization and Embryology Act, 1990.
8
Catechism of the Catholic Church, Part Three: Life in Christ, Section Two: The Ten Commandments,
Chapter Two: You Shall Love Your Neighbor As Yourself, Article 6: The Sixth Commandment, Verse:
2376.
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5.1.1 The Surrogacy Arrangement Act, 1985:
First of all it is to be noted that the Surrogacy Arrangement Act, 1985 has been
amended by the Human Fertilization and Embryology Act, 1990. This Act of 1985 sought
to outlaw profit making agencies from assisting in the creation of surrogacy arrangements.
The Act makes it illegal and guilty of an offence if the activity of surrogacy is done on
commercial basis through payments 9, wherein the payment is received by the person
himself or another person.10 But no criminal offence is committed by either the surrogate
mother or the commissioning couple if, it is agreed between them that payments will be
made to the surrogate mother, because this payment to the surrogate mother will be treated
as compensation for the services she provides to the infertile couple. However, any other
person, company or agency that negotiates, makes or otherwise assists for payment in a
surrogacy arrangement commits the said offence.11 It is also a criminal offence in the
United Kingdom to carry advertisements about surrogacy in any newspaper etc. and to
distribute such advertisements.12
The provisions of Human Fertilization and Embryology Act, 2008 have been
enforced which has made amendments to the Human Fertilization and Embryology Act,
1990 and to the Surrogacy Arrangements Act, 1985. Under this Act of 2008, a non-profit
making body will be allowed to make a not for profit charge for facilitating surrogacy
arrangements and compiling information, and they will be allowed to advertise those
services for which they make a charge.13 With the enforcement of this Act, unmarried and
same sex couples will be able to apply for parental orders.14
5.1.2 Human Fertilization and Embryology Act, 1990:
It is vital to remember that no matter what the genetic make-up of the child is, the
laws in United Kingdom sees the woman who carries and bears the child as the legal
mother. If she was married at the time of artificial insemination or the implantation of an
9
See Section 2 (3), (5), Surrogacy Arrangements Act, 1985.
10
See Section 2 (3), (5) of the Surrogacy Arrangement Act, 1985.
11
Section 2 (1) of the Surrogacy Arrangement Act, 1985.
12
Section 3 of the Surrogacy Arrangement Act, 1985.
13
See Human Fertilization and Embryology Act, 2008
14
See Section 54, Human Fertilization and Embryology Act, 1990.
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embryo, the law in United Kingdom recognizes her husband as the legal father of the
child, unless it is shown that he did not consent to the implantation of the embryo or the
artificial insemination.15
Thus, under the laws in United Kingdom, the parental responsibility for the child
rests with the surrogate mother and, if she is married, with her husband unless it is shown
that the husband did not consent. This presumption may be rebutted by evidence that the
commissioning man is the genetic father. As the surrogate mother is recognized as the
legal mother, Section 30 of the Human Fertilization and Embryology Act, 1990 provides a
procedure by which the commissioning couple can acquire parental rights. The surrogate
mother and the legal father must give full and free consent for the parental order. Such
consent is not effective until the child is atleast six weeks old.16
There are also other limits contained in Section 30 in relation to obtaining parental
orders. These limits are as follows:
a) The child is genetically related to atleast one of the commissioning couple;
b) The surrogate mother has consented to the making of parental order (not earlier
than six weeks after the birth of the child);
c) The commissioning couple are married to each other and are both aged 18 years or
above;
d) The commissioning couple have made the application within 6 months of the birth
of the child;
e) No money other than reasonably incurred expenses has been paid in respect of the
surrogacy arrangement unless authorized by the court;
f) The child is living with the commissioning couple; and
g) The commissioning couple is domiciled in the United Kingdom.
In other words, if all the conditions mentioned above are fulfilled, Section 30
enables the court to order that the commissioning couple in a surrogate arrangement is to
be treated in law as the parents without their having to adopt the child.
Section 36 of Human Fertilization and Embryology Act, 1990 has introduced
Section 1 A into the Surrogacy Arrangement Act, 1985 which provides that no surrogacy
arrangement is enforceable by or against any of the persons making it. Thus, surrogacy
15
See Section 28, Human Fertilization and Embryology Act, 1990.
16
See Section 30 (6) of Human Fertilization and Embryology Act, 1990.
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contracts are unenforceable in the courts in United Kingdom. This means that the
surrogate mother cannot be compelled by the commissioning parents under any
contractual provision to hand over her child. Similarly, the commissioning parents cannot
be compelled to hand over any money, or recover any money paid to the surrogate mother
under the terms of such a contract or take responsibility for the child.17
Section 27 of Human Fertilization and Embryology Act, 1990 provides that in
respect of treatment which is regulated by the Act, the woman who is carrying or has
carried a child as a result of the placing in her of an embryo or sperm and eggs, and no
other woman is to be treated as the mother of the child. This is relevant where IVF or
donor insemination is involved. Where the commissioning couple wishes to assume
parental responsibility, they may seek a parental order from the court under Section 30 of
the 1990 Act.
5.2 Surrogacy Laws in United States of America:
The first ever report of a baby being born following treatment by gestational
surrogacy was from the USA in 1985. The largest experience of both partial and
gestational surrogacy is in the USA, where commercial surrogacy arrangements are
allowed. In the USA, highly professional commercial agencies exist, often run by lawyers,
which put couples in touch with women who are willing to act as surrogate hosts. The
commissioning couple and a host, whom they would like to act for them, are brought to
the clinic for further in-depth discussions. Full details of the treatment are explained to the
proposed host, provided that she is considered to be emotionally and physically in a
condition to act in this capacity. The couples are then asked to seek an independent
counselor, who provides in-depth counseling on all aspects of surrogacy.
In the UK and USA, couples are advised to consult lawyers who can specially
advise on the potential legal problems associated with surrogacy. When the legal and
counseling processes have been completed satisfactorily and if there are no obvious
reasons why the arrangement should not proceed, a combined medical and counseling
report is prepared and the arrangement is discussed anonymously with the independent
17
This will depend upon the terms of the contract between the parties.
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Ethics Committee to the Clinic. After a full review, the surrogacy arrangement may be
approved, held over pending further information and discussion, or rejected. In every
surrogacy arrangement, the Clinic has to follow the recommendations of the Ethics
Committee.18
Thus, laws on surrogacy in the USA are very complicated as different states have
different laws. The laws of few important States of USA have been discussed hereunder: -
5.2.1 California Surrogacy Law:
California is one of the notable States in the USA as it has a surrogacy friendly
jurisdiction. In 1973, the Uniform Law Commissioners promulgated the Uniform
Parentage Act. It led to a revolution in the law of determination of parentage, paternity
actions and child support. A child whose mother was not married was an illegitimate child
under the common law. The father of an illegitimate child was burdened neither with
rights nor obligations. He could be subject to an action for limited damages (the costs of
delivering the baby) in an action that was quasi-criminal, not a civil action. The child had
no right of support, but then the unmarried father also had no right to custody of the child.
The US Supreme Court eliminated illegitimacy as a legal barrier in a number of
cases in the 1960s and 70s. The old-fashioned paternity actions simply did not respond to
these changes in fundamental law. The Uniform Parentage Act, 1973 was law for a new
generation. Section 2 of the Uniform Parentage Act, 1973 provides that the parent and
child relationship extends equally to every child and every parent, regardless of the marital
status of the parent.
In 1988, the Uniform Law Commissioners promulgated two other acts that deal
with issues of parentage. The Uniform Status of Children of Assisted Conception Act,
1988 provided rules establishing legal parentage for children conceived other than by
sexual intercourse and possibly carried by a woman other than the legal mother. It was a
response to the technologies of assisted conception, like in vitro fertilization and artificial
insemination. The second was the Uniform Putative and Unknown Fathers Act, 1988. It is
a procedural act that allows the identification of putative and unknown fathers and
termination of their parental rights.
18
Brinsden, Peter R., Gestational Surrogacy, Human Reproduction Update, 2003, Vol. 9, No.5, pp.2-7.
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In 2000, the National Conference promulgated a modernized version of the

Uniform Parentage Act, which addressed technological changes, especially the
development of DNA identification, and incorporated and replaced the two 1988 Acts
(Uniform Status of Children of Assisted Conception Act and Uniform Putative and
Unknown Fathers Act). In 2002, further changes to the Uniform Parentage Act were
promulgated, extending the Act to also provide a balanced coverage to questions of
parentage arising in non-marital circumstances. The Uniform Parentage Act, 2000
continues to serve the purposes of the Uniform Parentage Act, 1973, particularly the
purpose of identifying natural fathers so that child support obligations may be ordered.
California heads the way in terms of acceptability of surrogacy agreements and
upholds that Lesbian, Gay, Bisexual and Transgender (LGBT) individuals can also opt for
such a surrogacy arrangement. While the State has no statute directly addressing
surrogacy, Californias courts have used the States Uniform Parentage Act, 2000 (as
amended in 2002) to interpret several cases concerning surrogacy agreements.
There are seven substantive Articles, namely:

Article 2: Parent-Child Relationship;
Article 3: Voluntary Acknowledgment of Paternity;
Article 4: Registry of Paternity;
Article 5: Genetic Testing;
Article 6: Proceeding to Adjudicate Parentage;
Article 7: Child of Assisted Conception; and
Article 8: Gestational Agreement.
The original policy of the Uniform Parentage Act, 1973 was that it provided a
relationship between natural parents and their children, notwithstanding the marriage of
the parents continues. Legal parenthood, however, is more complicated in 2002 than it
was in 1973. In Article 2 of the Uniform Parentage Act, 2000, a legal mother is one who
carries a child to birth (rather than the one whose egg has been fertilized), but may also be
one who is adjudicated as the legal mother, who adopts the child (thus expressly
recognizing adoption), or who is the legal mother under a gestational agreement. In the
last three instances, the woman who carries the child to birth is not the legal mother.
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Under Article 2, the legal father may be one of the following:

a) an unrebutted presumed father (a man married to the birth mother at the time of
conception, or a man who resided in the same household as the child during its
first two years of life, and openly held the child out as his own),
b) a man who has acknowledged paternity under Article 3,
c) an adjudicated father as the result of a judgment in a paternity action,
d) an adoptive father, a man who consents to an assisted reproduction under Article 7,
or
e) an adjudicated father in a proceeding confirming a gestational agreement under
Article 8.
The genetic father or the presumed genetic father is the legal father in the first
three of these categories, but is not necessarily the legal father in the latter three
categories.
Article 3 of the Uniform Parentage Act, 2000 provides a non-judicial, consent
proceeding for acknowledgment of paternity. The non-judicial acknowledgment of
paternity proceeding under Article 3 allows a knowing and voluntary acknowledgment of
paternity that is the equivalent of a judgment of paternity for enforcement purposes. An
acknowledgment from another state is given the privilege of full faith and credit in a state
adopting the Uniform Parentage Act, 2000. Such an acknowledgment is effective so long
as there is not another presumed, acknowledged or adjudicated father. There are provisions
for recession, if a proceeding is filed within two years of registration pursuant to Article
4. There is a counterpart denial of paternity by a presumed father that is, also, available
and has the effect of a judgment of non-paternity, if another man acknowledged paternity
or is adjudicated to be the natural father.
Article 5 establishes a separate procedure for genetic testing, so that a court may
order testing without a full-blown paternity action. A reasonable probability of sexual
contact between the putative father and the mother is enough to initiate the proceeding.
Article 7 deals with parentage when there is assisted conception and incorporates
the earlier Uniform Status of Children of Assisted Conception Act into the Uniform
Parentage Act, 2000 almost without change. If a man and woman consent to any sort of
assisted conception and the woman gives birth to the resultant child, they are the legal
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parents. A donor of either sperm or eggs used in an assisted conception may not be a legal
parent under any circumstances.
Article 8 deals with gestational agreements, incorporating parts of the Uniform
Status of Children of Assisted Conception Act on this issue. Gestational agreements are
valid in some states and not in others. They are made an optional part of the Uniform
Parentage Act, 2000 for that reason. Having such provisions available to the states even in
optional form is important simply because gestational agreements are being used all the
time, and the legal parenthood of children should not be in doubt because such agreements
are used. A gestational agreement occurs between a woman and a married or unmarried
couple obligating that woman to carry a child genetically related to either or both of the
intended parents. The conception must be an assisted conception. The woman who carries
the child to birth pursuant to a gestational agreement is not the legal mother of that child,
an exception to the general rule. The intended parents become the legal parents of the
child. Gestational agreements are carefully controlled under the Uniform Parentage Act,
2000. A court must validate such agreements before they are enforceable, and all parties
to the agreement, including the gestational mothers spouse (if married), must consent to
its terms. The hearing that the court conducts to validate a gestational agreement is
analogous to a proceeding for an adoption of a child. The court verifies the birth mothers
qualifications to carry the child and the intended parents qualifications to be parents. The
birth mother may be compensated, and has the power to terminate the agreement.
Thus, the provisions of the Uniform Parentage Act, 2000 confronts the complicated
issue of establishing legal parentage against the complications that technology provides. It
brings genetic testing into modern parentage actions in a manner that is efficient, but that
preserves due process rights for all concerned.
On the other hand, the influential cases in California regarding surrogacy rights
have been decided interpreting the Uniform Parentage Act, 2000. For Example, in
Johnson v. Calvert19, the California Supreme Court decided that the intended parents in a
gestational surrogacy agreement (where the surrogate is not the biological contributor of
the egg) should be recognized as the natural and legal parents. The Court further decided
that the person who intended to procreate, i.e., the mother who provided her egg to the
19
851 P.2d 776 (1993)
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surrogate, should be considered the natural mother. This also follows through to a couple
who uses the services of an Egg Donor.
In the 1994 case of Re Marriage of Moschetta20, a California Court of Appeals
addressed the question of how to determine parentage when a child is conceived via
traditional surrogacy (in which the surrogate mother is the biological contributor of the
egg) and the child was born after the intended parents had separated. The Court held that
the intended father and the surrogate mother were the legal parents of the child, leaving
the intended mother without any parental rights.
In the case of the Marriage of Buzzanca21, Luanne and John had an embryo
genetically unrelated to either of them implanted in a surrogate named Buzzanca. The
couple separated and John disclaimed any parental responsibility for the child. Ultimately,
the Court found that when a married couple intends to procreate using a non-genetically
related embryo implanted into a surrogate, the intended parents are the lawful parents of
the child. When a married couple consents to in-vitro fertilization by unknown donors and
its subsequent implantation into a surrogate, the couple is the legal parents of the
offspring. In 2005, the California Supreme Court decided three companion cases that
concerned lesbian couples who had reproduced via surrogacy, Elisa B. v. Superior Court22,
Kristine H. v. Lisa R.23 and K.M. v. E.G.24 The Court held that, under the Uniform
Parentage Act, two women can be the legal parents of a child produced through surrogacy.
This ruling presumably applies to all members of the LGBT community.
5.2.2 Pre-Birth Order:

One of the most important advantages of performing surrogacy in California is that
it is possible to get a Pre-Birth Order which will establish the intended parents as the
legal parents of any children born through a surrogate within a specified time period. The
timeframe to obtain a judgment can take several months, mostly due to the courts
20
(1994) 25 Cal. App. 4th 1218
21
(1998) 61 Cal. App. 4th 1410.
22
117 P.3d 660 (2005)
23
117 P.3d 690 (2005)
24
117 P.3d 673 (2005)
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availability to review the documents and/or set the matter for hearing. To obtain the Pre-
Birth Order, the paperwork would usually be filed with the court between the fourth and
seventh month of the surrogates pregnancy. However, if the surrogate is at high risk for
early delivery at any point of the pregnancy, for example, if she is pregnant with multiples,
the couple may choose to file for Pre-Birth Order earlier. This is in order to ensure that the
judgment is in place prior to the birth of the child/children to prevent the surrogates name
from being listed on the childs birth certificate.25
Once the Order is obtained, the hospital where the surrogate will be delivering
should be forwarded a copy of the same. Normally this will go to the social work
department. This will highlight to the hospital team that this is a surrogacy arrangement,
and that specialized handling should be put in place to accommodate the needs of the
intended parents and the surrogate and her family. Most hospitals in California are now
very familiar with these arrangements and have a specific protocol in place to ensure the
transition goes smoothly for everyone.
In the US, it is the hospitals duty to register the birth of any children born at that
hospital. This means that a full-time registrar will be at the hospital that will come along to
the private room within 24 hours of the birth of the baby and the birth registration form is
to be filled out. This form will be signed by both the intended parents, and by the
delivering doctor. Once this has been done, the registrar will forward the paperwork to the
California State Department of Vital records, where the birth certificate will be produced.
This will then be ready for collection within the next two weeks.
In all cases where a surrogate gives birth to a child for another couple or person,
the California Office of Vital Records will only allow the intended parents name(s) to go
on the birth certificate, if the certificate is accompanied by a Superior Court judgment
naming the intended parent(s) as the legal parent(s) of the child. Without such a judgment,
the surrogates name (and if she is married, her husband's name) must go on the birth
certificate. Because the birth certificate must be registered with the Office of Vital Records
within ten days of the birth, the judgment should be presented to the birth records
department of the hospital at the time of birth. As a practical matter, the judgment should
be obtained no later than twenty weeks into the pregnancy. The reason is that after twenty
25
Byrn, Mary P. and Synder, Steven H., The Use of Prebirth Parentage Orders in Surrogacy Proceedings,
39 Family Law Quarterly 633 (2005) at 635.
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weeks Vital Records will require either a certificate of birth or foetal death, both of which
require the parents name(s).
Where there is both an intended mother and an intended father, filling out the birth
certificate is straightforward. The hospital where the child is born simply follows the court
judgment and fills out the birth certificate with the intended mother and intended fathers
names in the appropriate boxes. If a single man is the sole parent, however, the box
designated, Mother, cannot be left blank. This means that the single male parent has two
choices. He can opt to have the surrogates name go in the box for, Mother, and his
name in the box for, Father, or he can elect to have his name go in the box for,
Mother, and leave the box for, Father, left blank. In both cases, the judgment calls for
the birth certificate to be reissued with the single mans name in the box for, Father, and
the box for, Mother, left with a dash (-). The best choice is to have his name go in the
box for, Mother, so that the birth certificate is as accurate as possible from the time of
birth. In cases of gay or lesbian couples, the best course of action is to have the court issue
its judgment requiring that both intended parents names to go on the birth certificate, one
in the box for, Father, and one in the box for, Mother.26
5.2.3 New York Surrogacy Law:

The surrogate parenting contracts in New York have been seen as void,
unenforceable and contrary to public policy27 and provides for civil penalties for those
26
Byrn, Mary P. and Synder, Steven H., The Use of Prebirth Parentage Orders in Surrogacy Proceedings,
39 Family Law Quarterly 633 (2005) at 635.
27
New York Code Article 8, Section 122.
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who participate in or facilitate a commercial surrogacy contract. 28 Parties to

uncompensated surrogacy contracts are not subject to civil or criminal penalties. The main
reason for this is because surrogacy contracts have been interpreted to involve trafficking
of children. Altruistic surrogacy contracts are neither penalized, nor enforced. New York
also does not recognize pre-birth orders from other states. Rather, it has provided a post-
birth adoption alternative for altruistic surrogate parents via orders of maternal and
paternal filiation.
The New York Code defines surrogate parenting contracts under Section 121 as
agreements in which:
(a) a woman agrees to be either inseminated with the sperm of a man who is not
her husband or to be impregnated with an embryo that is the product of an ovum fertilized
with the sperm of a man who is not her husband; and
(b) the woman agrees to, or intends to, surrender or consent to the adoption of the
child born as a result of the impregnation or insemination.
5.2.4 Florida Surrogacy Law:

Florida law explicitly allows both Gestational Surrogacy agreements and
Traditional Surrogacy, but neither is available to same-sex couples. This is because the
Florida Gestational Surrogacy Statutes29 impose strict requirements on the contracts,
28
Section 123 of New York Code: (1) No person or other entity shall knowingly request, accept, receive, pay
or give any fee, compensation or other remuneration, directly or indirectly, in connection with any surrogate
parenting contract, or induce, arrange or otherwise assist in arranging a surrogate parenting contract for a
fee, compensation or other remuneration, except for:
(a) payments in connection with the adoption of a child permitted by subdivision six of section 374
of the social services law and disclosed pursuant to subdivision eight of section 115 of this chapter; or
(b) payments for reasonable and actual medical fees and hospital expenses for artificial
insemination or in vitro fertilization services incurred by the mother in connection with the birth of the child.
(2) (a) A birth mother or her husband, a genetic father and his wife, and, if the genetic mother is not the birth
mother, the genetic mother and her husband who violate this section shall be subject to a civil penalty not to
exceed five hundred dollars.
(b) Any other person or entity who or which induces, arranges or otherwise assists in the formation of a
surrogate parenting contract for fee, compensation or other remuneration or otherwise violates this section
shall be subject to a civil penalty not to exceed ten thousand dollars and forfeiture to the state of any such
fee, compensation or remuneration in accordance with the provisions of subdivision (a) of section 7201 of
the civil practice law and rules, for the first such offence.
Any person or entity who or which induces, arranges or otherwise assists in the formation of a surrogate
parenting contract for a fee, compensation or other remuneration or otherwise violates this section, after
having been once subject to a civil penalty for violating this section, shall be guilty of felony.
29
Florida Statute 63.212 (1) (i) and Florida Statute 742.15.
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among them limiting involvement to, couples that are legally married, which prevents
same-sex couples from being allowed to use surrogacy as they are not legally married. The
law governing traditional surrogacy arrangement, which are referred to as, pre-planned
adoption agreement, provides under Section 742.15 that prior to engaging in gestational
surrogacy, a binding enforceable gestational surrogacy contract shall be made between the
commissioning couple and the gestational surrogate. A contract for gestational surrogacy
shall not be binding and enforceable unless the gestational surrogate is 18 years of age or
older and the commissioning couple are legally married and are both 18 years of age or
older. Additionally, Florida law explicitly prohibits homosexuals from adopting, which
was upheld in the case of Lofton v. Kearney.30
Traditional Surrogacy is referred to as a, pre-planned adoption agreement,
with a voluntary mother, and requires court approval for the adoption. The most
important distinction between them is that under pre-planned adoptions, the birth mother
has 48 hours after the birth of the child to change her mind; the adoption must be approved
by a court; and the intended parents do not have to be biologically related to the child.
Recruitment fees for Traditional Surrogates are prohibited.31
In contrast, under a Gestational Surrogacy contract, the surrogate must agree to
relinquish her rights to the child upon birth; the intended mother must show that she
cannot safely maintain a pregnancy or deliver a child; and at least one of the intended
parents must be genetically related to the child. Both sets of laws require the surrogate
mother to submit to medical evaluation; make the surrogate the default parent if an
intended parent who is expected to be a biological parent turns out not to be related to the
child; limit the types of payment allowed; and require the intended parents to agree to
accept any resulting child, regardless of any impairment the child may have.
5.2.5 Texas Surrogacy Law:
30
157 F.Supp.2d 1372 (2001)
31
Section 742.15, Florida Statute.
Page | 15
5
Texas is one of the very few states that are considered surrogate friendly. Section
160.754 of the Texas Family Code provides that the gestational agreement must be entered
into atleast fourteen days prior to the date of the transfer of any eggs, sperm or embryos to
the gestational mother for the purpose of conception or implantation. The parties then
must obtain an order from the court validating the gestational agreement in order to be
enforceable under the Texas law.
It is against the law for the gestational mother to use her own eggs. To be a
surrogate mother, she must have had at least one prior pregnancy and delivery. She will
maintain control over all health related decisions during the pregnancy. The intended
mother must show that she is unable to carry a pregnancy or give birth. The intended
parents must be married and must undergo a home study. There is a residence requirement
of at least 90 days for either the gestational mother or the intended parents. An agreement
that has not been validated is not enforceable, and parentage will be determined under the
other parts of Texass Uniform Parentage Act.32
5.2.6 Virginia Surrogacy Law:

Virginia requires pre-authorization of a surrogacy contract by a court. If the
contract is approved, then the intended parents will be the legal parents. If the contract is
voided, the surrogate mother and her husband, if any, will be named the legal parents and
the intended parents will only be able to acquire parental rights through adoption. If the
contract was never approved, then the surrogate can file a consent form relinquishing
rights to the child. But if she does not, the parental rights will vary based on whether either
of the intended parents have a genetic relationship to the child, depending on the
circumstances, they may need to adopt in order to obtain parental rights. Notwithstanding
all of the above, if the surrogate is the genetic mother, she may terminate the contract
within the first six months of pregnancy.
Virginias requirements for court approval include: a home study; a finding that all
parties meet the standards of fitness applicable to adoptive parents; the surrogate must be
married and have delivered at least one prior live birth; the parties must have undergone
medical evaluations and counseling; the intended mother must be infertile or unable to
32
See Texass Uniform Parentage Act
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5
bear a child; and at least one intended parent must be genetically related to the child. The
intended parents must accept the child regardless of its health or appearance. The
surrogate retains sole responsibility for the clinical management of the pregnancy.
The court must appoint counsel for the surrogate and a guardian ad litem to
represent the interests of any resulting children during the approval proceedings. The
courts approval of assisted conception under the contract is effective for twelve months.
Compensation beyond reasonable medical and ancillary costs is not allowed. Recruitment
fees are punishable as a misdemeanour, and the parties may collect damages from the
facilitator or agency. The law also provides for an allocation of costs when a non-validated
contract is terminated under various circumstances.
5.3 Australian Surrogacy Law:
Like the USA, Australia has different regulations in different states. The
Commonwealth does not have constitutional power to legislate on surrogacy hence,
legislative power for this area remains with the States. There is no uniformity of
regulations throughout Australia. Some States have enacted legislations with different
models being used in different jurisdictions, and few States rely solely on the common
law. The legislations governing surrogacy is in operation in five Australian jurisdictions,
namely, Queensland, the Australian Capital Territory (ACT), Victoria, Tasmania and South
Australia. In addition, legislation was recently enacted in New South Wales. Likewise,
legislation has been drafted in Western Australia also. Similarly, legislation to amend the
existing legislative framework has also been drafted and introduced into the Parliament in
South Australia.33
The summary of different legislations applicable in different jurisdictions of
Australia is as follows:
Jurisdiction Legislation Current Legal Position on Surrogacy
Queensland Surrogate The old Act of 1988 prohibited all forms of
Parenthood Act, surrogacy and imposed criminal penalties for
1988 repealed and breach of prohibitions (Section 3). All
33
Brown Catherine, Willmott Lindy, White Ben, Surrogacy in Queensland: Should Altruism be a Crime?,
Bond Law Review, 2008, Volume 20, Issue 1, Article 1, p.5.
Page | 17
5
now Surrogacy Act, surrogacy agreements whether commercial or

2010 prevails. altruistic were void (Section 4). It purported to
have extra territorial operation (Section 3 (2).
Under the Surrogacy Act, 2010, a
surrogacy arrangement is not enforceable
(Section 15 (1). However, an obligation to pay
or reimburse surrogacy costs to the birth mother
is enforceable (Section 15 (2). Under Section
21, an application for a Parentage Order in
relation to the surrogate child can be made but
not less than 28 days and not more than 6
months after the childs birth or at a later time
with the courts leave. Under Section 56 of the
2010 Act, commercial surrogacy arrangements
are prohibited and a maximum penalty of 100
units or 3 years imprisonment is imposed for
entering into or an offer to enter into a
commercial surrogacy arrangement. Even
giving or receiving consideration is punishable
with a maximum penalty of 100 units or 3 years
imprisonment (Section 57).
New South Assisted Surrogacy both commercial and altruistic is
Wales Reproductive regulated by Common Law, as the Assisted
Technology Act, Reproductive Technology Act, 2007 has been
2007 enacted but enacted but has not yet enforced. The new Act
not yet enforced prohibits commercial surrogacy but does not
deal with altruistic surrogacy. All surrogacy
agreements are void.
Victoria Infertility Commercial surrogacy is prohibited and
Treatment Act, penalties are provided (Section 59). Altruistic
1995 surrogacy is not dealt with but surrogacy
agreements whether commercial or altruistic are
Page | 18
5
void (Section 61). However, the Victorian Law

Reform Commission has recommended the
continued prohibition of commercial surrogacy
and facilitation of altruistic surrogacy.
South Family Commercial surrogacy is prohibited and
Australia Relationships Act, penalties are provided under Section 10 G and
1975 10 H. Altruistic surrogacy is also prohibited but
no penalties are provided (Section 10 G).
Surrogacy agreements are void (Section 10 G).
The Social Development Committee has
recommended the facilitation of transfer of
parentage where both the commissioning
parents are infertile and have been living in a
heterosexual marriage or a de-facto relationship
for a period of 5 years.
Western No Legislation. Surrogacy Bill, 2007 if enacted, commercial
Australia However, surrogacy will be an offence. Surrogacy
Surrogacy Bill, arrangements will not be enforceable. However,
2007 has been the Bill provides for transfer of parentage of a
introduced in the child born under altruistic surrogacy
Legislative arrangements, when at least one commissioning
Assembly. parent is eligible for IVF procedure.
Australian Parentage Act, Commercial surrogacy is prohibited and
Capital 2004 penalized (Section 41). Surrogacy agreements
Territory are void (Section 31). Parentage under altruistic
surrogacy is facilitated (Division 2.5)
Tasmania Surrogacy Commercial surrogacy is prohibited and
Contracts Act, 1993 penalized (Section 4). Altruistic surrogacy is not
dealt with. However, facilitation of all
surrogacy arrangements is prohibited (Section
4). Surrogacy agreements are void and
unenforceable.
Northern No Legislation Commercial and altruistic surrogacies are
Page | 19
5
Territory regulated by Common Law.
The above-mentioned legislations prevalent in different States of Australia have

some common elements. They are as follows:
a) surrogacy agreements, whether commercial or altruistic are void and
unenforceable34;
b) entry into altruistic surrogacy is generally not prohibited35;
c) entry into a commercial surrogacy is prohibited36;
d) facilitating surrogacies for reward is prohibited37;
e) Advertising surrogacy services is prohibited38;
f) Providing technical services is sometimes prohibited39;
The survey of legislations available in various States of Australia shows that

despite the common themes in various statutes, there are also some important differences
in the regulatory regimes. The legislation in the Australian Capital Territory, the Parentage
Act, 2004 is the most progressive of all the Acts passed till date because it facilitates
practical aspects of a surrogacy arrangement. If certain conditions are fulfilled, the
commissioning parents can make an application to the Supreme Court to become
34
Section 4, Surrogate Parenthood Act, 1988 (enacted in Queensland); Section 61, Infertility Act, 1995
(enacted in Victoria); Section 7, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 G, Family
Relationships Act, 1975 (enacted in South Australia); Section 31, Parentage Act, 2004 (enacted in Australian
Capital Territory); Section 45, Assisted Reproductive Technology Act, 2007 (enacted in New South Wales).
35
But under Section 4, Surrogate Parenthood Act, 1988 (enacted in Queensland) altruistic surrogacy is
prohibited. But Section 10 G, Family Relationships Act, 1975 (enacted in South Australia) altruistic
surrogacy is illegal, but no penalty attaches for breach of this provision.
36
(enacted in Victoria); Section 4, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 G, Family
37
(enacted in Victoria); Section 4, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 H, Family
38
(enacted in Victoria); Section 6, Surrogacy Contracts Act, 1993 (enacted in Tasmania); Section 10 H, Family
39
Section 6, Surrogacy Contracts Act, 1993 (enacted in Tasmania, for both commercial and altruistic
surrogacies); Section 44, Parentage Act, 2004 (enacted in Australian Capital Territory for commercial
surrogacies only).
Page | 20
5
registered as childs legal parents.40 But the Queensland lies at the other end of the
spectrum in as much as it prohibits both commercial and altruistic surrogacy. This means
that entry into an altruistic agreement, or even an offer to enter such agreement, can
expose an individual to criminal sanction.41
For the analysis of the threshold issue whether altruistic surrogacies should
continue to attract criminal sanctions, Lavarch Committee was constituted. It is expected
that this committee will undertake its review of the Surrogate Parenthood Act, 1988
(Queensland). The Standing Committee of Attorneys General in March 2008
recommended the implementation of uniform surrogacy laws for entire Commonwealth of
Australia. This is a clear and deliberate policy shift towards regulating altruistic surrogacy
arrangement.
In the opinion of the researcher, there can be following 5 reasons for
decriminalization of altruistic surrogacy in Australia:
a) Lack of empirical evidence of harm to anyone because of altruistic surrogacy;
b) Lack of empirical evidence to prove exploitation of the surrogate;
c) Lack of empirical evidence to prove the harm to the commissioning parents;
d) Lack of empirical evidence to prove the harm to the surrogate child;
e) Presence of positive relationships among the surrogate mother, commissioning
parents and agencies involved in arranging surrogacy.
Thus, it is submitted that the criminal law should not impose punishment on
behaviours that do not cause harm. Hence, a strong case for de-criminalization of altruistic
surrogacy should be made out for the continent of Australia.
5.4 Japan Surrogacy Law:
Japan has not yet regulated assisted reproductive technology by law. This lack of
rules and regulations leaves the citizens to approach the courts for the solution of
numerous controversies, which puts patients in a situation of considerable uncertainty
about their rights. Japanese obstetricians adopted a ban against surrogate births in 1983,
but there is no binding law and some couples have had children through surrogate mothers
40
See Parentage Act, 2004 (Australian Capital Territory), part 2, division 2.5.
41
Section 3 (1) Surrogate Parenthood Act, 1988 (Queensland) and Section 5 (1) (b), Penalties and Sentences
Act, 1992 (Queensland).
Page | 21
5
with the help of a doctor in central Japan who is defying domestic medical circles. Such
births, along with a trend for couples to go abroad in search of surrogate mothers in
countries such as India, have prompted the government to consider for framing of rules
and regulations regarding surrogacy. A panel of health, legal and ethics experts at the
Science Council of Japan, have debated the issue at the request of the government argued
that surrogate births pose health risks to both surrogate mothers and children. Japanese
parents, if they seek a surrogate baby, have to keep it secret because of stigma surrounding
surrogacy in Japan.
Although not a crime, surrogacy is currently prohibited by the Society of

Obstetrics and Gynaecology in Japan after concerns over safety, custody battles and
distress caused during the process. The debate reflects growing Japanese public sympathy
for infertile couples. Japans first surrogate birth was announced in 2001 and led to the
Health Ministry calling for an immediate ban. Although this was blocked, the Society of
Obstetrics and Gynaecology successfully managed to prohibit surrogate births in 2003,
citing the mental and physical burden to the surrogate mother and the fear that surrogacy
could confuse family relationships. The Society had previously adopted ethical rules that
severely restrict the use of in-vitro fertilization procedure.
The Japanese Prime Minister Shinzo Abe have opined that the issue of surrogacy is
very difficult and Sanae Takaichi, State Minister for gender, equality and population had
said that the discussion is highly welcome, but it is extremely difficult to judge whether
surrogate birth can be encouraged.42 Although it appears likely that the public will support
changes to the existing law, it remains to be seen whether the government will endorse a
sympathetic view towards surrogacy. In March 2008, the Science Council
of Japan proposed a ban on surrogacy and said that doctors, agents and their clients should
be punished for commercial surrogacy arrangements.
Supreme Court of Japan has taken a different legal stand in respect of surrogacy. In
its decision dated 23th March, 200743, the Supreme Court of Japan denied parenthood to
42
http://www.bionews.org.uk/page_12891.asp; last visited on 20/07/2014; time 10:00 am (IST); place
Meerut, Uttar Pradesh, India.
43
Surrogate Birth Child Denied Registration Case, Case No. 47 of 2006, 61 Minshu No.2 (Sup. Ct. 2nd
Petty Bench, 23 March 2007).
Page | 22
5
genetic parents, since the twin babies were born to a surrogate mother at United States.
Interpreting the Civil Code of Japan, the Supreme Court, held that a mother who
physically gives birth to a child is the legal mother of the child. There is no provision in
the Code to recognize the genetic mother as legal mother. There exists no specific laws in
Japan concerning parent-child relationship for artificial insemination, and the mother-and-
child relationship will be based on the fact of delivery. The Japan Supreme Court rejected
the Japanese commissioning parents bid to register their twins born to a US surrogate
mother in Japan, on the ground that the law presumes the woman, who gives birth to a
child, as its mother.
5.5 Israel Surrogacy Law:
Israel is a pro-natalist society whose Jewish-Israeli population tries anything in

order to have a child. Israels pro-natalist impulse has made it into one of the leading
countries in the world in the research and development of new reproductive technologies.
This small country currently holds the highest number of fertility clinics per capita in the
world. Israels national health insurance funds IVF treatment upto 2 live births for
childless couples and for women who want to become single mothers. The option of not
becoming a mother is virtually absent in Israel.
In 1996, the Israeli government legalized gestational surrogacy under the Embryo
Carrying Agreements Act. This law made Israel the first country in the world to
implement a form of state-controlled surrogacy in which each and every contract must be
approved directly by the state. A state-appointed Approval Committee permits surrogacy
arrangements to be filed only by adult Israeli citizens who share the same religion.
Surrogates must be single, widowed or divorced and only infertile heterosexual couples
are allowed to hire surrogates. The numerous restrictions on surrogacy under Israeli law
have prompted some intended parents to turn to surrogates outside of the country.
In Israel, surrogates must be unmarried women (single, widowed or divorced) who

already have at least one child of their own. She cannot be biologically related to either
designated parent. The sperm has to belong to the designated father and the egg must
not be that of the surrogate mother. The egg can belong to the designated mother or if her
Page | 23
5
ova are not viable, be donated by an egg donor. Receiving egg donations should be eased
by the passing of the Egg Donation Law in Israel in 2010.
The question of who can become a parent by surrogacy in Israel is also strictly
regulated. The Embryo Carrying Agreement Act, 1996 allows only heterosexual couples
to enter into an agreement with a surrogate mother. The law states that only a man who has
a female partner, irrespective of marital status, can be an intended father. Likewise, the
law states that only a woman who has a male partner, irrespective marital status, can be an
intended mother. The law also excludes single men or women and same-sex couples. The
designated parents and the surrogate mother must all share the same religion, so the childs
religious status will be clear. This is consistent with the legal philosophy of family law in
Israel, in which individuals are accorded rights and status on the basis of their religious
and family status, and, for two examples among many, forbids interfaith marriage and
adoptions. The designated parents must meet age requirements, and the mother has to
prove that she is infertile or that pregnancy would significantly damage her health. After
the birth, the designated parents must submit a request to receive legal parenthood, and
upon the courts confirmation, they will be the childs sole guardians and his or her parents
in every respect. The surrogate mother can only withdraw from the agreement and keep
the child before legal parenthood is granted to the designated parents, and only if a social
worker appointed by the court attests that the circumstances have changed in way that
justifies the withdrawal and that the childs welfare would not be hurt by the withdrawal.
The surrogate mother can be compensated for her services and expenses, including legal
counseling, health insurance, time, pain, loss of earnings and earning capacity, and any
other reasonable expense. Financial arrangements should be a part of the agreement
submitted to the Surrogacy Approval Committee.
Page | 24

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Law and Policy on Surrogacy: A Socio-Legal Study in India 201

surrogacy continues to be illegal. Same is the case with Canada, where

5.1 United Kingdom:

5.1.1 The Surrogacy Arrangement Act, 1985:

5.1.2 Human Fertilization and Embryology Act, 1990:

5.2 Surrogacy Laws in United States of America:

5.2.1 California Surrogacy Law:

In 2000, the National Conference promulgated a modernized version of the

There are seven substantive Articles, namely:

Under Article 2, the legal father may be one of the following:

5.2.2 Pre-Birth Order:

5.2.3 New York Surrogacy Law:

who participate in or facilitate a commercial surrogacy contract. 28 Parties to

5.2.4 Florida Surrogacy Law:

5.2.5 Texas Surrogacy Law:

5.2.6 Virginia Surrogacy Law:

5.3 Australian Surrogacy Law:

now Surrogacy Act, surrogacy agreements whether commercial or

void (Section 61). However, the Victorian Law

Territory regulated by Common Law.

The above-mentioned legislations prevalent in different States of Australia have

The survey of legislations available in various States of Australia shows that

5.4 Japan Surrogacy Law:

Although not a crime, surrogacy is currently prohibited by the Society of

5.5 Israel Surrogacy Law:

Israel is a pro-natalist society whose Jewish-Israeli population tries anything in

In Israel, surrogates must be unmarried women (single, widowed or divorced) who

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