Law and Policy on Surrogacy: A Socio-Legal Study in India 2015

Chapter VI

Judicial Response

India, surreptitiously, has become a booming centre of a fertility market with its
reproductive tourism industry reportedly estimated at Rs. 25,000 crores. Clinically
called Assisted Reproductive Technology (ART), has been in vogue in India since 1978
and today an estimated 2,00,000 clinics across the country offer Artificial Insemination,
IVF and Surrogacy. So much so, in the recent decision of the Supreme Court of India on
29th September, 2008 in Baby Manji Yamadas case1, it was observed that commercial
surrogacy reaching industry proportions is sometimes referred to by the emotionally
charged and potentially offensive terms wombs for rent, outsourced pregnancies or
baby farms. It is presumably considered legitimate because no Indian law prohibits
surrogacy. But then, as a retort, no law permits surrogacy either. However, the changing
face of law is now going to usher in a new rent-a-womb law. It is to be considered whether
India is set to be the only country in the world to legalize commercial surrogacy.
The complicated case of Japanese baby Manji born on July 25, 2008 to an Indian
surrogate mother with IVF technology upon fertilization of her Japanese parents eggs and
sperms in Tokyo and the embryo being implanted in Ahmedabad in the womb of another
woman being called a surrogate mother, triggered off complex knotty issues.
In November 2007, Japanese couple Ikufumi and Yuki Yamada met Gynecologist
Dr. Nayna Patel, Medical Director of Akanksha Infertility Clinic and expressed their
desire to hire a surrogate mother to bear a child for them. The doctor arranged a surrogacy
contract with Pritiben Mehta, a married Indian woman with children. Under Dr. Patels
supervision, the clinic staff created an embryo from Ikufumi Yamadas sperm and an egg
harvested from an anonymous Indian woman. They then implanted the embryo into
Mehtas womb.
In June 2008, the Japanese biological parents got divorced and a month later on
25th July, 2008 Baby Manji was born to the surrogate mother. Now Ikufumi Yamada
wanted to raise the child but his ex-wife disowned the infant upon its birth in India as she
saw herself biologically, genetically and legally unrelated to the baby. Under the terms of

1
AIR 2009 SC 84.
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the agreement with the clinic, the egg donors responsibility had ended once she provided
the egg, and the surrogates job was finished as soon as she gave birth. Suddenly, Baby
Manji had three mothers, i.e., the intended mother who had contracted for the surrogacy,
the egg donor, and the gestational surrogate - yet legally she had none. The question which
arose was whether she was Indian or Japanese or could she have an identity and a
nationality without having a mother? The surrogacy contract did not cover a situation such
as this. Nor did any existing Indian law help her to clarify her status. In fact, no binding
regulations on the surrogacy industry existed in India at all. As far as Dr. Patel was
concerned, the clinic had fulfilled its promise to produce a baby.
The situation soon grew into a legal and diplomatic crisis. Both the parentage and
the nationality of Baby Manji were impossible to determine under existing definitions of
family and citizenship in Indian and Japanese law. Yamada and his elderly mother
launched a months long campaign to secure the paperwork needed to bring the baby to
Japan. The grandmother (Emiko Yamada) of the infant flew to India and petitioned in the
Supreme Court of India challenging the directions given by the Rajasthan High Court
relating to production and custody of baby Manji Yamada. Her request to the Apex Court
for permission for the infant to travel with her and for issuance of a passport under
consideration with the Central Government was directed to be disposed of expeditiously.
Following the directions of the Supreme Court dated 29 th September, 2008, the Regional
Passport Office in Jaipur issued an Identity Certificate to the baby on 1 st November,
2008. Thereupon, the grandmother flew to Japan with the baby.
This case gave rise to a new situation as to what will happen to the newly born
child if intending parents get divorced before the birth of the child. Thus, law is needed on
this delicate issue. This case reflects absence of any law on surrogacy in India. Hence,
need for Surrogacy Arrangement (Regulation and Control) Act is felt in India for
legalizing altruistic surrogacy and prohibiting commercialization of surrogacy. Law is also
needed to regulate the parentage and nationality of the child born out of surrogacy
arrangement.
In Re Baby M case2, Melissa was born when the commercial surrogacy industry
was booming, in the absence of any legislation regulating commercial surrogacy in their
respective places of birth. At the time of the decision of the Superior Court of New Jersey

2
537 A.2d 1227 (N.J. 1988).
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in Baby Melissas case, the Court acknowledged this legal void. Baby M (Melissa) was
born to William Stern, who was married to Elizabeth Stern, through artificial insemination
of Mr. Sterns seminal fluid in the womb of surrogate mother Mary Beth Whitehead, who
was married to Richard Whitehead and was already a mother of two school going
children.
The Sterns met Mrs. Whitehead through an infertility clinic, when Mrs. Stern was
diagnosed with multiple sclerosis. The disease made her incapable of carrying a
pregnancy having devastating effects on her health. Mrs. Whitehead was registered with
the clinic and the Sterns reached an agreement dated 6th February, 1985 with her and
appointed her as the surrogate. The seminal fluid of Mr. Stern was introduced in Mrs.
Whiteheads womb through artificial insemination where the latter was successfully
impregnated after nine attempts.
The terms of the contract between the parties specifically stated that Mrs.
Whitehead was to be appointed the surrogate whereby she accepted her obligation to
attempt conception by artificial insemination, upon conception to carry the child to term,
deliver and surrender the child to Mr. Stern renouncing all of her parental rights and that
doing so would be in the childs best interest. It was also agreed that Mr. Sterns name
would appear on the childs birth certificate. Mrs. Stern was not a signatory to the
contract but the understanding was that she would adopt the baby after the child was
handed over to her husband, as was the practice at that time in New Jersey with relation to
babies born out of surrogacy contracts. The contract further stated that Mrs. Whitehead
would assume the risks of the pregnancy and child birth. She would submit to a
psychiatric evaluation for which Mr. Stern would pay. Mr. Stern had the right to name the
child. In the event of the death of Mr. Stern, the child would be placed in the custody of
Mr. Sterns wife. In any event Mrs. Whitehead would not abort the child. In addition, she
would undergo amniocentesis and if the child was found to have a genetic or congenital
abnormality, it would be aborted if Mr. Stern requested it. In the event the child possessed
genetic or congenital abnormalities William Stern would assume legal responsibility for
the child once it was born. In return, Mrs. Whitehead was to be paid $10,000 and all the
medical expenses on fulfillment of her contractual obligations. She promised not to meet
the Sterns thereafter in future but asked to be sent an annual picture of Baby Melissa and
her progress in a letter. Although Mr. Whitehead did not initially consent to his wifes

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attempts at surrogacy, he ultimately came around and was fully aware of the negotiations
with the Sterns, many times participating in the discussions. He was however, not a
signatory to the contract.
Contrary to the contract, Mrs. Whitehead developed an attachment to the child and
insisted on keeping the baby. The Sterns were forced to litigate when the baby was taken
away from their possession. The Superior Court of New Jersey, Chancery Division,
Family Part, Bergen County looked into the issue as to which party to take the custody of
the child and thereby applied the best interest of the child analysis and decided it by
looking into the following three aspects: -
1) Background and character of the parties, their past family life and actions;
2) Their behaviour after the conception and the birth of the child;
3) The behaviour of the parties during the trial.
Much emphasis was laid on the background of the parties where the scales were
tilted in favour of the Sterns. They were educated with a stable financial status. On the
other hand, the Whiteheads, only had a high school education, had a history of domestic
turbulence, bad financial status, a brief separation and alcohol abuse by Mr. Whitehead.
The parenting skills of the Whiteheads were put under intense scrutiny in light of their
decisions relating to their two children. The inability of Mrs. Whitehead to honour the
surrogacy agreement and detach herself from the baby also worked against her. When
Baby Melissa was born, the Whiteheads chose her name and did not use the name given
by the Sterns. This went contrary to the agreement. The Whiteheads further went ahead
and registered her birth, in the name chosen by them, stating themselves to be the parents.
They also requested the Sterns not to mention the factum of surrogacy to the hospital
authorities.
Finally, considering all the evidences on record, the Court came to the conclusion
that it was in the best interest of the child that she be placed in the custody of the Sterns.
The Court also found that there was a breach of contract by Mrs. Whitehead on two counts
by failing to surrender the child and by refusing to relinquish her parental rights to the
child. The best interest of the child was also an issue in determining whether specific
performance of the contract should be ordered, which was decided in favour of the Sterns.
The Court refused to allow the custodial rights to Mrs. Whitehead and ordered for specific
performance of the contract. The Court also validated the surrogacy contract.

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Thereafter, The Whiteheads made an appeal against the above decision before the
Supreme Court of New Jersey, along with an application for grant of custody. The appeal
was allowed but the custody was not granted. The Supreme Court partly affirmed the
decision of the Superior Court while reversing the decision with respect to the validity of
the surrogacy contract and remanded the case back to the Superior Court of New Jersey.
The custody of the child was allowed to be retained by Mr. Stern accepting the decision of
the lower court and the best interest of the child argument. However, Mrs. Whitehead
was given visitation rights in recognition of her entitlement as the natural mother,
consequently terminating the adoption rights of Mrs. Stern. The case was remanded back
to the Superior Court for the parties to work out the terms of the visitation rights. The
Superior Court invalidated surrogacy contracts against public policy but in dicta affirmed
the trial courts use of a best interest of the child analysis and remanded the case to
family court.
The other important argument raised in this case before the Supreme Court of New
Jersey related to the constitutionally protected rights of the parties. Mrs. Whitehead
contended that the order of the Superior Court violated her constitutionally protected right
to the companionship of her child. The Sterns on the other hand claimed a constitutional
right to privacy, which included the right of procreation, and also the right of consenting
adults to deal with matters of reproduction.
Analysis of facts and decision of this case underlines the necessity of validity and
enforcement of surrogacy agreement by way of specific performance. It also mandates that
both the intending parents must sign the surrogacy agreement. The number of attempts by
way of IVF should also be restricted, as they were nine in this case. The visitation rights or
atleast having a look at the pictures of the child should also be considered. The consent of
the husband of the surrogate mother is also essential. The attachment of the surrogate
mother with the child and best interest of the child are paramount considerations. The
surrogacy agreement should not be against the public policy. These are the main issues
which arose after the decision in Melissas case. The right to the companionship of the
child and intending parents, constitutional right of privacy also arose after the decision of
this case. These issues are properly addressed in this work.

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However, in New Jersey, the Baby Melissa ruling continues as precedent. In 2009,
New Jersey Superior Court ruled in A.G.R. v. D.R.H & S.H.3 and held that In re Baby
Melissa case applies to gestational surrogacy as well as traditional surrogacy cases. In
A.G.R. case the intended parents were a homosexual male couple. They created an embryo
using an anonymous donor ovum and the sperm of one of the husbands. The sister of the
other husband carried the embryo to term and originally delivered the child to her brother,
but a year later she asserted her own parental rights even though she was not genetically
related to the child. Judge Francis Schultz relied on In re Baby Melissa to recognize the
gestational mother as the child's legal mother. However, a later ruling in 2011 awarded full
custody to the biological father.
This decision raises a complex issue as to whether the facility of surrogacy
arrangement should be allowed to Gay people and Homosexual male couple.
In Re Melissas case, Mrs. Whiteheads claim of the right to companionship of her
child was dropped as her right to companionship had been restored by partly order
allowing her the visitation rights. As far as Mr. Stern was concerned, the Court refused to
give an all-encompassing definition to his claim to the right to procreation simply because
it reasoned that giving him the right would be to refuse Mrs. Whitehead the same right.
The Court held that the right to procreate very simply is the right to have natural children,
whether through sexual intercourse or artificial insemination and it is no more than that.
The Court further held that Mr. Stern has not been deprived of that right because the right
of procreation is best understood and protected if confined to its essentials, and that when
dealing with rights concerning the resulting child, different interests come into play. There
is nothing in our culture or society that suggests a fundamental right on the part of the
father to the custody of the child as part of his right to procreate when opposed by the
claim of the mother to the same child.

On the other hand, the impact of Baby Melissas case in New Jersey is that
surrogacy contracts are void and payment of money for surrogacy is perhaps criminal.
The judgment also states that a woman could volunteer to become a surrogate but on the
condition that she is given the right to assert her parental rights.

3
No. FD-09-183807 (N.J. Super. Ct. Chi. Div., Dec. 23, 2009).
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Thereupon dealing with the case of Baby Yamada Manji v. Union of India,4 whose
relevance lies in not only being the first decision relating to surrogacy made by the Apex
Court, i.e., Supreme Court of India but also in bringing to light the absence of regulation
of the existing surrogacy industry in India. This decision is the direct precursor of the
newly enacted Assisted Reproductive Technologies (Regulation) Bill, 2010 which
followed the 2008 Draft Bill. The case is also relevant because it was decided under a
presumption of legality of surrogacy agreements and motherhood, with the Court merely
commenting on the status of such agreements. At that time, the Guidelines regulating
surrogacy had been laid down by the Indian Council of Medical Research in 2005 but did
not find any mention in the judgment of the Court to support its presumption of legality of
surrogacy in India.

In this case, Baby Manji Yamada had been born through a surrogate mother. The
biological parents Dr. Yuki Yamada and Dr. Ikufumi Yamada came to India in 2007 and
had chosen a surrogate mother in Anand district of Gujarat and a surrogacy agreement was
entered between the biological father and biological mother on one side and the surrogate
mother on the other side. The egg extracted from her biological mother, Dr. Ikufumi
Yamada was fertilized with Dr. Yuki Yamadas sperm and was then implanted in the womb
of an Indian surrogate mother. The child was born on 25th July, 2008. On 3rd August,
2008 the child was moved to Arya Hospital in Jaipur following a law and order situation
in Gujarat and she was being provided with much needed care including being breastfed
by a woman. The petitioner stated that the genetic father Dr. Ifukumi Yamada had to return
to Japan due to expiration of his visa. It was also stated that the Municipality at Anand had
issued a Birth Certificate indicating the name of the genetic father.

Subsequently, a habeas corpus writ petition was filed before the Division Bench of
High Court of Rajasthan, Jaipur Bench, by a NGO, M/s SATYA. It was filed against the
Union of India through Ministry of Home Affairs, State of Rajasthan through the Principal
Secretary, the Director General of Police, Government of Rajasthan and the
Superintendent of Police Jaipur City (East), Jaipur. The writ petition challenged the
legality of surrogacy and criticized it as feeding an illegal industry in India and stressed
the need for the enactment of a law. Consequently, the Division Bench passed the writ
4
AIR 2009 SC 84.
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ordering the production of the child before the Court. This order was challenged by the
grandmother of Baby Manji on her behalf in a writ petition before the Supreme Court in
which the NGO, M/s SATYA was Respondent No. 3.
The Supreme Court set aside the order of Rajasthan High Court and held that
complaints relating to the misuse of surrogacy and it being an illegal racket in India should
be made before the Commission set up under the Commissions for Protection of Child
Rights Act, 2005. The Supreme Court also stated that no such complaint had been made
with respect to Baby Manji, thus, the order requiring her production before the Court was
not valid. An additional prayer that the passport for the baby should be granted and that
the grandmothers visa should be extended was allowed and directions to that effect were
given to the government.
Later on, Baby Manji was issued a Certificate of Identification instead of a
passport by the Regional Passport Authority, Rajasthan just to facilitate her transit out of
the Indian territory. This fact was highlighted in the case of Jan Balaz v. Anand
Municipality and Others5, which involved the question of nationality of twins born to an
Indian surrogate mother with the help of an unknown Indian donor and the sperms of the
father, Jan Balaz. The question of nationality of a child born in India out of surrogacy
arrangement by foreign intending parents is also taken up in this work in earlier chapters.

At the time when this case was up on hearing before the Honble Supreme Court
and uptil today, there is no law governing surrogacy in India and in the name of surrogacy
lot of irregularities are being committed every day. In the name of surrogacy money
making racket is being perpetuated. This issue of legality of law on surrogacy, its
regulation and control alongwith chances of development of illegal industry in India are
properly addressed in this work in detail.

At the time of the decision of Baby Manji, the fertility clinics were subjected to
regulation by the 2006 guidelines of the Indian Council of Bio-medical Research which
validated surrogacy contracts. However, it specifically considered surrogacy for infertile
married couples and the reading of the guidelines clearly proposes gestational surrogacy
with the baby required to be genetically related to the intending parent and mandating
them to adopt the baby within six weeks of birth. Thus, the Guidelines aimed at preventing

5
AIR 2010 Guj 21.
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multiple parentages which could result in a situation when there were donors of either of
the gametes and also gestational surrogacy. However, in practice, gestational surrogacy
with non-genetic gametes was also carried out by the clinics.
On 11th November, 2009, the High Court of Gujarat delivered a judgment in Jan
Balaz v. Anand Municipality and Ors.6 This case is a presage of the complications that
may arise out of surrogacy agreements and highlights the urgent need for a legislation to
regulate these agreements.
The petition was filed before the High Court by Jan Balaz, the father of twin boys
born out of a surrogacy agreement. The babies were conceived through the fertilization of
a donor egg with the genetic father, as the intending mother was unable to produce eggs
due to bad health. The surrogate mother was Indian while the intending parents were
German nationals working in the United Kingdom. The donor too was an unknown Indian
female. The denial of a passport by the Regional Passport Authority to the twins was
challenged by the Petitioner on the ground that the twins were Indian citizens by virtue of
their birth in India to an Indian surrogate mother and thus entitled to Indian citizenship
under Section 3 of The Citizenship Act, 1955. They also argued that since surrogacy was
not illegal in India, a surrogate mother was entitled to be called a mother of a child for the
purposes of obtaining a passport. The Passport Authority on the other hand argued that the
central government was yet to legalize surrogacy and thus, the twins born to a German
father were to be considered as non-citizens. The Court stated that the egg donor, although
genetically related to the twins, could not be asked to disclose her identity as she was
entitled to her privacy under Article 21.
The Court depended on the mother-child bond shared during the gestation period
to give the surrogate the status of the natural mother rather than the intending mother who
is neither the genetic nor the natural mother. The Court concluded that both the gestational
mother and the egg donor were Indian nationals it reinforced the stand that the twins were
born to an Indian national.

It was held that egg donor is also reported to be an Indian woman, of course her
identity is not disclosed. Either way the mother of the babies is an Indian national.
Petitioner, it is true, has not married Khristi Marthaben Immanuel, surrogate mother of the
children or the egg donor. Children are born not out of a subsisting marriage. Even if the
6
AIR 2010 Guj. 21.
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children are described as illegitimate children, even then they are born in this country to an
Indian national and hence, they are entitled to get Citizenship by birth as per Section 3(1)
(c)(ii) of the Citizenship Act, 1955, since one of their parent is an Indian citizen. Thus,
the Court held that they were Indian citizens and thus entitled to the issuance of the
passports. Here, the Court mentioned the urgent need for legislation. At the time of this
decision, the Draft Assistant Reproductive Technologies (Regulation of) Bill, 2008 had
been introduced for deliberations. However, the Draft Bill, 2010 which replaced it is yet to
be passed by the Parliament, leaving the area devoid of any legal regulation.

The Supreme Court of India in Stephanie Joan Becker v. State7 permitted a single
53 year old lady to adopt a female orphan child aged 10 years by relaxing the rigor of the
guidelines of CARA on the totality of the facts of the case that the proposed adoption
would be beneficial to the child as the experts were of the view that the adoption process
would end in successful blending of the child in the US. Likewise, in Shabnam Hashmi v.
Union of India8, the Apex Court upholding the recognition of the right to adopt and to be
adopted as a fundamental right has held that every person, including Muslims, irrespective
of the religion they profess is entitled to adopt a child. The latest verdict of the Supreme
Court in National Legal Services Authority v. Union of India 9 recognizing transgender as
the third gender have held that discrimination on the basis of sexual orientation or gender
identity includes any discrimination, exclusion, restriction or preference, which has the
effect of nullifying or transposing equality by the law or the equal protection of laws
guaranteed under our Constitution. Clearly, transgender persons having been granted a
legal recognition as third gender would be entitled to rights of adoption, succession,
inheritance and other privileges under law. The new enunciation is a path of rights.

In Johnson v. Calvert,10 on January 15, 1990, Mark, Crispina, and Anna Johnson
signed a contract providing that an embryo created by the sperm of Mark and the egg of
Crispina would be implanted in the womb of Anna and the child born would be considered
as Mark and Crispinas child, to which Anna agreed that she would relinquish all parental
rights to the child in favor of Mark and Crispina. In return, Mark and Crispina would pay
7
(2013) 12 SCC 786.
8
(2014) 4 SCC 1.
9
(2014) 5 SCC 438.
10
851 P.2d 776 (Cal. 1993)
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Anna $10,000 in a series of installments, the last to be paid six weeks after the birth of the
child. Mark and Crispina were also to pay for a $200,000 life insurance policy on Anna's
life. But unfortunately, relations deteriorated between the two sides. Mark learned that
Anna had not disclosed that she had suffered several stillbirths and miscarriages. Anna
felt Mark and Crispina did not do enough to obtain the required insurance policy. She also
felt abandoned during an onset of premature labour in June. In July 1990, Anna sent Mark
and Crispina a letter demanding the balance of the payments or else she would refuse to
give up the child. The following month, Mark and Crispina responded with a lawsuit,
seeking a declaration they were the legal parents of the unborn child. Anna filed her own
action to be declared the mother of the child, and the two cases were eventually
consolidated. The parties agreed to an independent guardian ad litem for the purposes of
the suit.
The child was born on September 19, 1990, and blood samples were obtained from
both Anna and the child for analysis. The blood test results excluded Anna as the genetic
mother. The parties agreed to a court order providing that the child would remain with
Mark and Crispina on a temporary basis with visits by Anna. At trial in October 1990, the
parties stipulated that Mark and Crispina were the child's genetic parents. After hearing
evidence and arguments, the Trial Court ruled that Mark and Crispina were the child's
genetic, biological and natural father and mother and that Anna had no parental rights to
the child, and that the surrogacy contract was legal and enforceable against Anna's claims.
The court also terminated the order allowing visitation. Thereafter, Anna appealed from
the trial court's judgment. The Court of Appeal for the Fourth District, Division Three,
affirmed the decision of the Trial Court. Thereupon, Anna appealed to the Supreme Court
of California, which affirmed the decision of the Court of Appeal.
This case also raises the issue of visiting rights of surrogate mother to meet the
child. Who will have parental rights over the child? The legality and enforceability of the
surrogacy agreement are very important issues which are thoroughly discussed in this
work.
The implicit assumption of the dissent is that a recognition of the genetic intending
mother as the natural mother may sometimes harm the child. This assumption overlooks
Californias dependency laws, which are designed to protect all children irrespective of
the manner of birth or conception. Moreover, the best interests standard poorly serves the

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child in the present situation. It fosters instability during litigation and, if applied to
recognize the gestator as the natural mother, results in a split of custody between the
natural father and the gestator, an outcome not likely to benefit the child. Further, it may
be argued that, by voluntarily contracting away any rights to the child, the gestator has, in
effect, conceded the best interests of the child are not with her. The birth mother is the
natural mother under California law. The dissent would decide parentage based on the best
interests of the child.

In K. Kalaiselvi v. Chennai Port Trust, Represented by the Chairman, Chennai 11

Maternity Benefit Act, 1961, Madras Port Trust (Leave) Regulations, 1987, sanction of
maternity leave to surrogate worker were discussed in this case. The petitioner was
working as an Assistant Superintendent in respondent/Port Trust who requested the
respondent for sanction of maternity leave to look after newly born girl child and
reimburse medical expenses and also to issue FMI Card incorporating newly born child
through representation. The respondent cancelled leave granted for a period of 59 days and
rejected request for inclusion of female child in FMI card. Hence, the instant writ petition
was filed. The main issue involved was whether the petitioner working in the Chennai Port
Trust was entitled to avail maternity leave similar to that of leave provided under Rule 3-A
of the Regulations in the absence of any legal provision and even in case where she gets
the child through an arrangement by surrogate parents.
The Madras High Court did not find anything immoral and unethical about
petitioner having obtained a child through surrogate arrangement. When once it was
admitted that said minor child was daughter of petitioner and at the time of application,
she was only one day old, she was entitled for leave akin to persons who are granted leave
in terms of Rule 3-A of the Regulations. Even in case of adoption, adoptive mother did not
give birth to child, but yet necessity of bonding of mother with adoptive child was
recognized by Central Govt. It was held that the petitioner was entitled for leave in terms
of Rule 3-A of the Regulations. Thus, respondent was directed to grant leave to petitioner
in terms of Rule 3-A of the Regulations recognizing child obtained through surrogate
procedure. The petition was thus allowed.

11
W.P.No.8188 of 2012; decided by Madras HC on 4th March, 2013.
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The decision of this case raises an issue whether a surrogate mother, if in

government job, enters into a surrogacy agreement, is entitled to special surrogacy leave in
Indian scenario?

In Jaycee B. v. Superior Court12 a married couple sought to have a child by

gestational surrogacy, which means that the husbands sperm is artificially united with the
egg of his wife and the resulting embryo is implanted in another womans uterus, who
then carries the child to birth. The child is usually the genetic off-spring of the married
couple but not of the surrogate mother. In this case, pursuant to a written contract between
four people, namely, a husband, wife, another woman and her husband, a sperm and an
egg from anonymous donors were artificially united and implanted in the uterus of the
other woman, with the intention that the off-spring would be legally the child of the
married couple. Here, the child is not genetically related to the intended parents. About a
month before the birth of the child, the married couple separated and dissolution of
marriage proceedings soon followed. The child was born and the hospital authorities
released the child to the intended mother under the contract. Later on, in the dissolution
proceedings, the wife filed an application seeking pendente lite child support, i.e.,
temporary child support pending final adjudication of the matter. The husband disputed
the jurisdiction of the court to award even temporary maintenance. Husband objected that
it had not yet been established that the child was indeed a child of the marriage. The trial
judge agreed with the husband and ruled that the court had no jurisdiction to make a
temporary child support order. The court gave the reasoning that the wifes remedy was
first to get an order from the probate court decreeing the child had been adopted.
The Supreme Court held that the Family Law Court had jurisdiction to make an
order forcing the husband to pay maintenance temporarily to his child until the issue of his
parenthood is finally decided. The Supreme Court obviously decided a Catch-22 or
chicken-and-egg problem. The remarkable thing about this case is that, unless a court is to
hold that the surrogate mother is the natural mother of the child, the child named Jaycee
has no legal parents at all. Her genetic parents are anonymous and will probably not be
held to be her natural parents. Thus, once again, the need for legislation on this aspect of
surrogacy area is also apparent. What will happen to the child if the intending parents

12
42 Cal. App. 4 Th. 718 (1996)
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disown the child? Who will maintain the child, if the intending parents have applied for
dissolution of their marriage?

In J v. G (Parental Orders)13 the two men, civil partners, entered into an agreement
with British Surrogacy Centre of California for which they paid 3,500 for their services
in facilitating a surrogacy arrangement. An American surrogate became pregnant using
sperm from one of the men and a donor egg. The men paid her in total $56,750 including
$53,000 as a pregnancy compensation fee plus an inconvenience fee for the embryo
transfer and an allowance for incidental expenses. When the surrogate was 25 weeks'
pregnant with twins the men ceased working with the centre and instructed lawyers in the
USA instead. The men were awarded paternity orders by the California court prior to the
birth enabling them to be named on the US birth certificates. Following the birth the
children remained in the full-time care of the men, US passports were obtained and they
were permitted a 6-month visitor's visa while applications for British citizenship were
made. The men now sought a parental order pursuant to Section 54 of the Human
Fertilization and Embryology Act 2008 of UK. On the facts of the case the payments
involved were not so disproportionate to the expenses reasonably incurred that the
granting of the order would be an affront to public policy or that they were of such a level
to overbear the will of the surrogate. The men had acted in good faith throughout and had
even developed a close relationship with the surrogate and her family. They had taken all
proper steps to comply with the legal parentage requirements in the UK and the USA. In
the circumstances the court would exercise its discretion pursuant to Section 54(8) of the
HFEA 2008 and authorize the payments made other than for reasonably incurred
expenses.
The paramount consideration of the court was the welfare of the children. The
parental order reporter produced a positive report of the relationship between the children
and the men. She recommended that the welfare needs of each of the children would be
best served by making the parental orders. The respondents, being the surrogate and her
husband, had provided their consent to the orders, were unwilling to care for the children
and as a matter of Californian law, were not their legal parents. It was held that only the

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2013 (EWHC) 1432 (Fam).
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 Law and Policy on Surrogacy: A Socio-Legal Study in India 2015

parental orders would provide the lifelong security and stability that the children's welfare
required.
One of the cardinal principle which emerges out of ratio of above-mentioned
decided case is that welfare of the child is of paramount consideration while drafting any
law relating to surrogacy. The analysis of the above-mentioned cases reveals some of the
issues or considerations to be dealt with in new law on Surrogacy Arrangement
(Regulation & Control) in India.

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