JAIPUR NATIONAL UNIVERSITY

SEEDLING SCHOOL OF LAW AND GOVERNANCE

SUBJECT: - LABOUR LAWS- II

TOPIC: - ISSUES WITH SURROGATE MOTHER AND INDIAN MATERNITY

ACT

SESSION-2014-19

SUBMITTED TO: - SUBMITTED BY: -

ASST. PROF. MAHESH MAUT MUMAL SOLANKI
(BA.LLB IXth SEMESTER)
 TABLE OF CONTENTS:-

DECLARATION .................................................................................................................................... 3
ACKNOWLEDGEMENT ...................................................................................................................... 4
CERTIFICATE OF SUPERVISOR........................................................................................................ 5
INTRODUCTION .................................................................................................................................. 6
SURROGACY IN INDIA ...................................................................................................................... 7
LANDMARK JUDGEMENTS ON SURROGACY .............................................................................. 9
SOCIAL ISSUES AND LEGAL ISSUES ............................................................................................ 11
CURRENT SCENARIO IN INDIA ..................................................................................................... 13
DOWNCAST OF SURROGACY ........................................................................................................ 15
CONCLUSION ..................................................................................................................................... 16
BIBLIOGRAPHY ................................................................................................................................. 17

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 DECLARATION

We hereby declare that the project work titled “ISSUES WITH SURROGATE MOTHER
AND INDIAN MATERNITY ACT “submitted to Jaipur National University, is a record of
an original work done by me under the guidance of MR. MAHESH MAUT, ASST. PROF.
JAIPUR NATIONAL UNIVERSITY, SSLG and this project work has not perform for the
basis of any award degree or diploma/ Associate ship/ Fellowship and similar project if any.

MUMAL SOLANKI
BA, L.L.B (HONS.)
9th Semester

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to our Professor MR. MAHESH
MAUT who gave me the golden opportunity to do this wonderful project on the topic
“ISSUES WITH SURROGATE MOTHER AND INDIAN MATERNITY ACT”
which helped me in doing a lot of Research and I came to know about so many new
things. I am really thankful to him.
Secondly I would also like to thank my parents and friends who helped me a lot in
finishing this project within the limited time.

I am making this project not only for marks but to also increase my knowledge.

THANKS AGAIN TO ALL WHO HELPED.

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 CERTIFICATE OF SUPERVISOR

This is to certify that the project entitled “ISSUES WITH SURROGATE MOTHER AND
INDIAN MATERNITY ACT” Submitted by MUMAL SOLANKI is a record of
candidates own work carried out by them under my supervision.

Date- 11-11-18

Supervisor:
Mr. Mahesh Maut

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 INTRODUCTION

The surrogacy is being used as an alternative medium for fulfilling the desire of parenthood
by infertile couples, couples having some physiological disabilities for reproduction, gay
couples and single persons. There are instances of surrogacy in bible that explicitly endorses
the prevalence of surrogacy during those days. Babylonian Law and custom allowed the
practice of surrogacy. The practice of surrogacy is prevalent since ancient times that bear
testimony to the fact that the desire of parentage has paved way for surrogacy through
customary practices for infertile couples who wanted to have a child having their own genetic
linkage. According to a survey conducted by International Institute for Population Science
(IIPS), out of 250 million individuals estimated to attempting parenthood at any given time,
13 to 19 millions couples are likely to be infertile. Nearly 30 million couples in the country
are suffering from infertility. Nearly one in every five male suffers from abnormal sperm
count. From the instance of first baby born (second in the world to be born by ART) named
Durga, on 3rd October 1978 to present day born in Kolkata through in vitro fertilization;
surrogacy market has grown multifold in India. Though there are various players in the
market, Anand has been spearheading in making the surrogacy business, a reality in India
which has further led to the concept of medical tourism.. On an average, the average
expenditure per surrogacy is roughly $25000- 30000 in India which is much cheaper than the
cost incurred in the developed countries. Thus, the growing market and extensive
commercialization of surrogacy has brought for various moral, ethical and legal issues.

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 SURROGACY IN INDIA

The supreme court of India by virtue of case, “Baby Manji vs. Union of India”, has made
commercial surrogacy legalized in India. India is immerging as a leader in international
surrogacy. Surrogacy in India is much simpler and cost effective than anywhere else in the
world. There is no law governing the surrogacy ‘Surrogacy Agreement’, is the only base
which governs the parties to surrogacy. Therefore the commissioning parents are required to
be attentive while signing agreement, so that the surrogacy agreement is not held void in
court of law. Every agreement, should express purpose and situations, the need of surrogacy,
free will of surrogate, details about the surrogate and the terms on which the surrogate agrees
to gestate the child, etc. Assisted Reproductive Bill 2010 considering the growing number of
surrogacy cases in India and the challenges that the surrogacy would face in future, the
government of India decided to come up with a law which would govern the surrogacy and
ART in India. A committee of experts was setup and the said committee has now submitted a
draft of the proposed bill to the government of India. The said bill is still pending with
government and has not yet been presented in the parliament. The purposed draft namely
‘Assisted Reproductive Technologies’ bill 2010 has taken into consideration various aspects
of surrogacy and has built in safe guards for surrogate mothers. The some of the salient
features of ART Bill 2010 are as under: The process of surrogacy and giving the womb on
rent, as it is popularly called is completely legal in India. Charging financial reimbursement
for carrying the baby of an Indian or foreign couple would be absolutely legal. The bill
defines the term ‘couple’ as two people living together and a sexual relationship that is legal
according to Indian legislation. Since court has already given verdict in favour of
homosexuality, a gay or lesbian couple can also go for surrogacy and it will be termed legal
The age of surrogate mother has to be 21 to 35. The maximum number of ‘live births’
allowed for her would be maximum 5, including her own children. The number of donations
would not be greater than six in the entire lifetime. In the case of single parent opting for
surrogacy, the baby will be legitimate child for him or her. In case the intended parents are
engaged in live in relationship then the child would be legitimate child of both. Intended
couple would bear the complete cost of pregnancy and pay remuneration to the surrogate
mother. They may give a contractual obligation under Indian legislation. In case of the
intended couple being a foreign national, they have to submit the surrogacy policy of their
country and a certificate regarding nationality of the surrogate child post birth. They also
have to nominate a local guardian to take care of surrogate mother during pregnancy.
Government certified ART banks to store complete details of surrogates and donors. The

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certification to ART banks would be given by state boards. This independent body would
have authority to register, maintain and monitor the functioning. The determination of the sex
of the baby and ‘selective child birth’ through surrogacy is illegal. Surrogacy as medium of
pregnancy and child birth would be considered as legal for the couples otherwise, proved to
be incapable of give birth to a child and it is not a ‘convenient mode’ of having a baby
without readiness of beating pain of pregnancy and delivery. Commercial use of surrogacy
for cloning or mass production would be strictly prohibited.

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 LANDMARK JUDGEMENTS ON SURROGACY

 BABY MANJI YAMADA VS. UNION OF INDIA:

In the Landmark case Baby Manji Yamada v. Union of India, a Japanese couple, Dr. Ikufumi
Yamada and his wife, wished to have a baby and entered into a surrogacy contract with an
Indian woman in Anand, a city in the state of Gujarat where this practice was pioneered. The
couple went through matrimonial discord but the father still insisted on having custody of the
child. Under Indian Lawa single father cannot adopt a girl child. He sent his mother in his
stead and a petition was filed before the Supreme Court. The Government seemed to be
helpless in this matter as there were no laws governing the effect of surrogacy. The Apex
Court directed that the National Commission for Protection of Child Rights was the apt body
to deal with this issue. Justice Arijit Pasayat and Justice Mukundakan Sharma of the Supreme
Court held that the father was the genetic father of the child and he was given custodial rights
of the child. The Government was instructed to issue the passport to Manaji Yamada and she
returned with her grand –mother. Most importantly, the Supreme Court held that the
Surrogacy Agreement was valid in India. What is most noticeable in the Baby Manji Yamada
case is that the stance of the Court was not only pro-surrogacy it was also extremely pro-
contract. The contract was held to be valid and therefore of most importance even though
what the Court granted went against a particular legislation in the country.

 JAN BALAZ V. ANAND MUNICIPALITY:

A German couple entered into a contract with a surrogate mother named Marthaben
Immanuel Khrishti. Twin children were born. The German couple was working in the United
Kingdom and the children required Indian passports to travel. Since their citizenship was
being litigated in the courts the passport authorities withheld the passports. Germany, the
parent state of the German couple did not recognize surrogacy. The Supreme Court denied
the passports but granted an exit permit to the children and the German authorities decided to
give the couple an opportunity to adopt the children and fight for their rights. The Supreme
Court of India also recommended the emergent legislation of a law on surrogacy. The Bench
headed by Justice G.S. Singhvi and Justice C.K. Prasad said that no surrogate child should
undergo the difficulties faced by Nicolas and Leonard who were already two years of age by
the time this decision was made and had still not been granted citizenship in any country. It is
clear that in the case of Jan Balaz the contract proved to be insufficient in demarcating the
rights of the parties and it also brought out residual issues such as citizenship and identity that

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are matters of vital importance to the children but do not find place in the surrogacy
agreement. In both the above case laws the courts take a very pro-contract stand possibly as a
way of encouraging commercial surrogacy, which contributes millions of dollars to India’s
economy.

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 SOCIAL ISSUES AND LEGAL ISSUES

New reproductive technology claim to help human beings through creative interventions that
reduce suffering and have the potential to transform the society. The commercialization of
surrogacy however creates several social conflicts rather than resolving a few. It generates the
family pressure on pure women to offer their wombs for a price. In the other part in the world
like in India the debate is focus on the ethics of surrogacy rather than on the economic
advantage of any particular region. On the other hand the economic advantage is the main
criteria behind going for surrogacy. Majority of the women becoming surrogates are
extremely vulnerable due to poverty, lack of financial resources, low educational levels. For
them the financial gain is the key factor. This makes their economic exploitation much easier
for the agents for commissioning parents. The surrogates often face the dilemma that being a
surrogates is socially unacceptable when the frankly accept monetary consideration. So rather
than tell their neighbours that they gave away their child, they tell them that the baby died. As
the surrogacy involves implantation of multiple foetuses, the unwanted foetus is aborted
during the course of development. The misuse of PNDT in the process can eliminate the
female foetus resulting into imbalance of sex ratio in the country. There are cases where the
surrogate mothers have refused to part with the baby. In other cases the commissioning
parents have refused to accept the child with the deformity. Baby Manji’s case as there was
divorce between the commissioning couple the problem arose as to the custody of the new
born baby. In many cases, the caesarean delivery needs to be performed. For such surgery the
consent of surrogate mother is to be obtained. Her refusal may imperil the life of the child.
Confusion also exists where a surrogate mother fails to take standard care and precaution
during pregnancy as a result of which harm is caused to the foetus. The high aspirations of
the intending parents are ruined because of this. Surrogacy can also affect the children’s
perception of the values and integrity of their family. Secrecy and anonymity create a
negative environment that affects human relations within and outside families. It also
involves the issues of children’s right to information about the identity of their parents.
Secrecy and anonymity are routed in the social value of the primacy of ‘blood relations’. The
present practices push such children into a search of identity, a sense of shame and anger
against their social parents. Commercialization of surrogacy creates several social conflicts.
Given the extreme vulnerability, one-third of the Indian women due to poverty, exclusion
from and marginalization in labour and job markets, patriarchal social and family structures
and low educational levels, the financial gain through surrogacy become a key push factor.
Since most surrogate mothers are not from well-off sections and the motive primarily is
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monetary so they are easily exploited by the agents working for commissioning parents.
Secrecy and anonymity creates a negative environment that affects human relations within
and outside families. Every act cannot be counted in terms of money; the moral and ethical
issues are involved and well thought-out while the commission of every act, then isn’t it is
eccentric, that our legislature is ignoring moral and ethical aspects, while drafting the ART
bill: which indirectly commercializes surrogacy. We aim that our legislature passes a law
which caters the need of the public at large and which is beneficial for all. There should be no
law, which degrades the status of any gender. At the end, a good law is the one, which apart
from economical and financial issues caters the ethical and moral sides of the society also.

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 CURRENT SCENARIO IN INDIA

The concept of surrogacy in India is not new. Commercial surrogacy or “Womb for rent,” is a
growing business in India. In India, English speaking environment and cheaper services
attract the willing clients. Future projections of surrogacy practice range from opportunity to
exploitation – from rural women in India uplifted out of poverty to a futuristic nightmare of
developing country baby farm. In case of surrogacy in India, it is hard to tell that whether
these women are exercising their own personal rights or whether they are forced to become
surrogate mothers due to their mother-in-law’s or husband’s desire to fulfil material and
financial needs. Opponents of surrogacy argue that the practice is equivalent to prostitution
and by virtue of that similarity; it should be disallowed on moral grounds. Surrogacy
contracts are “dehumanizing and alienating since they deny the legitimacy of the surrogate’s
perspective on her pregnancy. Surrogate mother tries to avoid developing a special bond with
the child in her and views the pregnancy as merely a way to earn the much-needed money.
The payment for bodily services dehumanizes the surrogate mother and exploits her
reproductive organs and capability for personal gains of the wealthy. In fact, outsourcing
surrogacy is an exploitative practice in India. Currently, no law exists to protect the surrogate
mother in case of birth complication, forced abortion etc. Since 2002, commercial surrogacy
has almost become legal in India and India has become a sort of leader in it. This is the
reason that has led critics to allege that surrogacy business is exploiting poor women in
country like India already having high maternal mortality ratio. According to estimates,
which might be conservative – the business of surrogacy in India is already touching $445-
million a year. Surrogate motherhood as an arrangement, in which a woman takes no
ownership of the child born, has raised moral, ethical social and legal questions about both
woman and the “Commissioned baby.” According to legal experts” if surrogacy becomes an
avenue by which women in richer countries choose poorer women in our country to bear their
babies, then it is economic exploitation, a kind of biological colonization.” The Ministry of
Women and Child Development is examining the issue of surrogate motherhood in India for
bringing up a comprehensive legislation. A draft legislation on surrogacy-prepared by the
Indian Council of Medical Research (ICMR) has recommended strict penalties for offenders
and a tight regulation on Assisted Reproductive Techniques (ART). The draft law restricts the
number of embryo transfers a mother can go through to 3 times for the same couple, if the
first two attempts fail and it also adds that no woman should act as a surrogate for more than
three live births in her life. In fact, these are the only guidelines framed by the ICMR and the
Ministry of Health and Family Welfare in 2005. ICMR guidelines, states, “A relative, a

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known person as well as a person unknown to the couple may act as a surrogate mother for
couple. In case of a relative acting as a surrogate, the relative should belong to the same
generation as the woman desiring the surrogate.” The experts believe that surrogacy propels
childless couples needlessly toward commercial surrogacy. Section 3.10.5 of the guidelines
states that “a surrogate should be less than 45 years” being the upper age without mentioning
the minimum age to be surrogate. So does that mean an 18 year old or someone even
younger, can become surrogate mother? Before accepting a woman as a possible surrogate
for a particular couple, the ART Clinic must ensure (and put on record) that the woman
satisfies all the testable criteria to go through a successful full term pregnancy.” These
guidelines are skewed and thoughtless. The bifurcated role of woman in surrogate
arrangements is prompting renewed assessment of the meaning of motherhood and
designation of maternal rights. Surrogacy only furthers Right to Life under Article 21 of the
Constitution: The relation of the surrogated mother to the child she is carrying is nothing but
womb leasing or womb for rent. After the birth of the child she has no right to keep the child
because she is neither the mother (where both ova and sperm are from different persons) nor
the owner of the genetic material. She is only a contractor who is willing to give the end
product once the contract between her and the person is fulfilled.

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 DOWNCAST OF SURROGACY

In a developing country like India where still poverty is a major concern the poorer husbands
are driven to direct their wife for surrogacy as an income generating option. Pregnancy
affects the woman’s health and one cannot know all the long-term consequences of repeated
pregnancies. Careful consideration must be given to the medical, emotional, legal and
practical issues, and to the implications of surrendering the child at birth. Thought must also
be given to the effect on any existing children, the potential surrogate mothers partner, family
and friends. In case of divorce of intended parents before the completion of surrogacy the
custody of child remains a question mark. Complicated situation arises when both parties
refuse to take custody of child specifically when the child is born abnormal. Care should be
taken that the surrogacy should be resorted by those couples who are facing medical unfitness
and not for cosmetic purpose. Proper laws should be framed in order to protect for interest of
surrogate mother and commissioning parents. A surrogacy arrangement should provide for
financial support for surrogate child in the event of death of commissioning couple or
individual before delivery of the child, or divorce between the intended parents and
subsequent willingness of none to take delivery of the child.

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 CONCLUSION

In the culturally enriched country like India concerns about the overuse and inappropriate use
of commercial surrogacy facilitated by unscrupulous fertility clinics are above all. Surrogacy
is an alternative to other fertility treatments in a bid to expand the industry and make greater
profits, and fears loom that surrogacy could spin out of control. In developing country like
India where poverty is playing an important factor, women may be compelled by their
husbands of in-laws to become surrogates. Instances like breach of contract either by
surrogate mother or commissioning couple should not be neglected. Proper guidelines should
be given to control following issues: In absence of independent agency issues namely welfare
of surrogate child is at stake.Refusal on part of surrogate mother to give a child to
commissioning parents out of mental breakdown of mother.Several social and legal questions
like whether it amounts to sale of child, breach of contract by denial of mother from handling
over child, etc. should be settles. The Union Women and Child Development Ministry is
clearly in favour of monetary compensation for the surrogate mothers. It’s high time to enact
the laws otherwise India would be a tourism hub for surrogacy. Surrogacy carry social stigma
in the society as it is equated with prostitution and by virtue of that it is argued that it should
be disallowed on moral grounds. Surrogate mothers are kept in isolation from families and
allowed to meet families in weekends, which are against the human rights. Hence, there are
number of ethical, social, legal and psychological issues associated with surrogacy, which
require urgent need for framing and implementation of law. In India, people are practicing
surrogacy when several children are orphans. Childless couples who want to adopt these
children are subjected to a complex procedure. A common adoption law for all the citizens
across religions or Indians living in other countries is not present. Hence, they are forced to
opt for IVF or surrogacy. The Guardian and Wards Act, 1890 allows guardianship and not
adoption. The Hindu Adoption and Maintenance Act, 1956 does not allow non-Hindus to
adopt a Hindu child, and immigration procedures after adoption pose obstacles. Simple
adoption procedures will reduce the rates of surrogacy. However, commercial surrogacy
should be encouraged. The rights of women and children should be protected through
framing of laws which will cover all the present loopholes.

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 BIBLIOGRAPHY

 http.en.wikipedia.org/wiki/Surrogacy
 web.stanford.edu/group/womenscourage/Surrogacy/surrogacy_contracts.html
 www.familylaw.com.ua/index.php?option=com_content&view=article&id=69&Itemi
d=99&lang=en
 www.rtc.org.au/events/docs/Michael Nicholls presentation Probs with Int Surrogacy
Arrangements.pdf
 www.ncbi.nlm.nih.gov/pmc/articles/PMC3531011/
 icmr.nic.in/guide/ART REGULATION Draft Bill1.pdf
 timesofindia.indiatimes.com/life-style/relationships/man-woman/Legal-and-ethical-
to-dos-in-surrogacy/articleshow

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