Introduction With the advent of time and the technology that came along with it, the advances

made in reproductive sciences have come a long way. It is now possible for coup les and others to have children biologically even though they cannot do the same for a number of reasons. The concept of surrogacy has evolved with this concept . Surrogacy has slowly become a common practice and India is one of the few coun tries to recognize this practice commercially. The world's second and India's fi rst IVF (in vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata on October 3, 1978 about two months after the world's first IVF boy, Louise Joy Brown born in Great Britain on July 25, 1978. Since then the field of assisted reproductive technology (ART) has developed rapidly. The need for ART can be obs erved from the fact that infertility is a huge impediment to the social outlook of a family. In social and moral standards, a wife should be a mother so that th e husbands potency is proven and the lineage continues. Some authors put it as fo llows: The parents construct the child biologically, while the child constructs t he parents socially. This however has become a business gold-pot as described by the 228th Law Commissi on Report on Need for Legislation to Regulate Assisted Reproductive Technology Cl inics As well As Rights and Obligations of Parties to a Surrogacy. Surrogacy has thus become a business activity evolving into a 25 billion dollars industry, ena bling foreign nationals and NRIs to enter into surrogacy agreements for cheap her e, owing to surrogacy being commercially allowed in India. There has been no legislation on the legalization of surrogacy per se. But the 2 28th Report by the Law Commission of India has drafted the need for having frame d legislations and rules regarding the surrogacy contract entered between the su rrogate mother on one side and the commissioning parents on the other. The legal issues that can arise out of this can be very complex and demanding of detailed regulations. According to the report, there is a need to define clearly the rig hts and duties of the parties to the surrogacy contract. This would help in lega lly recognizing the concept of surrogacy which has so long been devoid of any le gislative spotlight. Status of Parties as seen in the Draft ART (Regulations) Bill and Rules, 2008 After a long wait, the Indian Council of Medical Research (ICMR) has come up wit h a draft Assisted Reproductive Technology (Regulation) Bill and Rules, 2008 whi ch contains 50 clauses under nine chapters to regulate surrogacy contracts. Chap ter VII of the Bill comprises the Rights and Duties of Patients, Donors, Surrogat es and Children. Section 34 of the Bill deals with the rights relating to surroga cy. This Bill acknowledges surrogacy agreements and their legal enforceability. Thi s will ensure that surrogacy agreements are treated on par with other contracts and the principles of the Indian Contract Act 1872 and other laws will be applic able to these kinds of agreements. These agreements are between the surrogate mo ther on one hand and the individual or couple seeking surrogacy on the other. Status of the Surrogate Mother All expenses, including those related to insurance, of the surrogate related to a pregnancy achieved in furtherance of assisted reproductive technology shall, d uring the period of pregnancy and after delivery as per medical advice, and till the child is ready to be delivered as per medical advice, to the biological par ent or parents, shall be borne by the couple or individual seeking surrogacy. Apart from medical and other expenses, the surrogate mother is also entitled to any monetary compensation from the commissioning parents or individual seeking s urrogacy. Under the Bill, the surrogate mother has to relinquish all rights over the child after delivery. Claiming parenthood of the child would constitute a breach of t he agreement under the Indian Contract Act, and can be tried in any court of com petent jurisdiction under Section 9 of the Civil Procedure Code. The age criteria of being eligible to be a surrogate mother are between twenty o ne and forty five years of age. The Surrogate mother has to go through a medical check-up for any traces of infe

ction, disease etc., that might disrupt the course of surrogacy. She also has to declare in writing that she has not undergone any intravenous treatment or bloo d transfusion. Full transparency has to be maintained and the surrogate mother, while her treat ment during pregnancy; declare herself as the surrogate mother and not the genet ic mother of the child. If the first embryo transfer has failed in a surrogate mother, she may, if she w ishes, decide to accept on mutually agreed financial terms, at most two more suc cessful embryo transfers for the same couple that had engaged her services in th e first instance. No surrogate mother shall undergo embryo transfer more than th ree times for the same couple. Confidentiality is to be maintained. Information of the surrogate cannot be disc losed to anyone except the parties and the Indian Medical Research Database. A surrogate mother shall not act as an oocyte donor for the couple or individual , as the case may be, seeking surrogacy. A prospective surrogate shall not be advertised by clinics If the surrogate mother is married, consent of the husband is essential before e ntering into a surrogacy contract. The surrogate mother shall be given certificate by the commissioning parents, st ating the unambiguity of the terms of the contract. Even a relative or a known person can be a surrogate provided she is of the same generation as that of the commissioning mother. Status of the Commissioning Parents or the Individual seeking Surrogacy The Bill provides that single persons may also go for surrogacy arrangements. The Bill also deals with instances of foreign nationals wanting to enter into su rrogacy contracts, provided a local guardian is appointed to take care of the su rrogate mother before the child is given to the commissioning parents. Also, the commissioning parents are bound by the contract and would have to acce pt the child irrespective of any deformities it could have, and refusal to accep t the child would constitute an offence. The birth certificate issued in respect of a baby born through surrogacy shall b ear the name(s) of the genetic parents / parent of the baby. The commissioning parents would be deemed as the legal parents of the child. Mor eover, a parent or parents cannot have more than one surrogate at a time, accord ing to the Bill. A couple or an individual shall not have the service of more than one surrogate at any given time. A couple shall not have simultaneous transfer of embryos in the woman and in a s urrogate. Recommendations by the Law Commission Report In pursuance of formulating the regulations of surrogacy, the 228th Law Commissi on Report on Need for Legislation to Regulate Assisted Reproductive Technology Cl inics As well As Rights and Obligations of Parties to a Surrogacy provided some r ecommendations to improve the status of parties to a surrogacy agreement. In tot al there are nine recommendations: 1) Surrogacy arrangement will continue to be governed by contract amongst p arties, which will contain all the terms requiring consent of surrogate mother t o bear child, agreement of her husband and other family members for the same, me dical procedures of artificial insemination, reimbursement of all reasonable exp enses for carrying child to full term, willingness to hand over the child born t o the commissioning parent(s), etc. But such an arrangement should not be for co mmercial purposes. 2) A surrogacy arrangement should provide for financial support for surroga te child in the event of death of the commissioning couple or individual before deliver of the child, or divorce between the intended parents and subsequent wil lingness of none to take delivery of the child. 3) A surrogacy contract should necessarily take care of life insurance cove r for surrogate mother. 4) One of the intended parents should be donor as well, because the bond of love and affection with a child primarily emanates from biological relationship

. Also, the chances of various kinds of child abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he o r she should be a donor to be able to have a surrogate child. Otherwise, adoptio n is the way to have a child which is resorted to if biological (natural) parent s and adoptive parents are different. 5) Legislation itself should recognize a surrogate child to be the legitima te child of the commissioning parent(s) without there being any need for adoptio n or even declaration of guardian. 6) The birth certificate of the surrogate child should contain the name(s) of the Commissioning parent(s) only. 7) Right to privacy of donor as well as surrogate mother should be protecte d. 8) Sex-selective surrogacy should be prohibited. 9) Cases of abortions should be governed by the Medical termination of Preg nancy Act 1971 only. Conclusion In my opinion, the Law Commission Report needs to be reviewed. First of all, the Report is silent on the status of the child. Not much has been articulated as t o whether hed be deemed as the genetic child of his parents, or orphan, etc. The Report considers surrogacy as a private contract and has prohibited commercializ ation. This can have reflections for the negative as private contracts are easil y subject to exploitations and biased status of the parties. More stringent rules need to be formulated for international surrogacy agreement s as the Report is completely silent on the aspect of citizenship of the surroga te child. We have already seen the repercussions of citizenship issues in the Ba by Manji Case and need to implement changes accordingly to avoid similar problem s in the future.