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Surrogacy

Contracts
Subtitle
Lectures-46, 47 & 48
Advanced Contracts
 Surrogacy (Surrogacy Contract)

oMeaning and concept

 Classification

oGestational (straight method / total) and


Traditional (host method / partial)
oCommercial and Altruistic

 India — a favourable destination for foreign couples

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 “Surrogacy” means an arrangement in which a woman
agrees to a pregnancy, achieved through assisted
reproductive technology, in which neither of the gametes
belong to her or her husband, with the intention to carry it
and hand over the child to the person or persons for whom
she is acting as a surrogate.
 “Surrogate mother” means a woman who is a citizen of
India and is resident in India, who agrees to have an embryo
generated from the sperm of a man who is not her husband
and the oocyte of another woman, implanted in her to carry
the pregnancy to viability and deliver the child to the couple /
individual that had asked for surrogacy.
 “Surrogacy agreement” means a contract between the
person(s) availing of assisted reproductive technology and
the surrogate mother.
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Lawmaking Developments
 Law Commission of India’s 228th Report on
‘Need for Legislation to Regulate Assisted
Reproductive Technology Clinics as well as Rights
and Obligations of Parties to a Surrogacy’.
 The Assisted Reproductive Technologies
(Regulation) Bill.
 Indian Council of Medical Research Guidelines
2005

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 Legal and moral issues
• Commoditisation of the child;
• Breaks the bond between the mother and the child;
• Interferes with nature;
• Leads to exploitation of poor women in underdeveloped countries who sell
their bodies for money;
• Psychological considerations;
• Can true informed consent ever be given by the surrogate, and can anyone
predict the emotions associated with relinquishing a child?

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 Legality of Surrogacy:
 Constitutionality of Reproductive Rights
o Article 16.1 of the Universal Declaration of Human Rights 1948
 B K Parthasarthi v Government of Andhra Pradesh AIR 2000 A P 156.
 Jack T Skinner v State of Oklahoma 316 US 535.
 Javed v State of Haryana (2003) 8 SCC 369.

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 Some leading cases

oCan parental rights be contracted away?


 Baby M case 537 A 2d 1227, 109 NJ 396 (NJ 1988). Is surrogacy contract
enforceable, and if not, who should gain custody? (The New Jersey court
ruled that the surrogacy contract was invalid and unenforceable
according to the state statutes and public policy. Custody was
determined on the basis of ‘best interest of the child’ analysis. At
least in New Jersey, the Baby M ruling continues as precedent. In
2009, New Jersey Superior Court ruled that In re Baby M applies
to gestational surrogacy as well as traditional surrogacy cases.)
 Kirkman sisters’ case
 Jaycee B v Superior Court 42 Cal App 4th 718 (1996).

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Baby Manji Yamada v Union of India JT 2008 (11) SC 150.
(a clause in the contract stated that the husband would care for the child
if the couple separated… should have raised concerns but went
unnoticed at the time) In this case, if any action is to be taken that has to
be taken by the Commission. It has a right to inquire into complaints and
even to take suo motu notice of matters relating to, (i) deprivation and
violation of child rights (ii) non-implementation of laws providing for
protection and development of children and (iii) non-compliance of policy
decisions, guidelines or instructions aimed at mitigating hardships to and
ensuring welfare of the children and to provide relief to such children, or
take up the issues arising out of such matters with appropriate
authorities. The SC, therefore, disposed of the writ petition with a
direction that if any person has any grievance, the same can be
ventilated before the Commission constituted under the NCPCR Act. It
needs no emphasis that the Commission has to take into account various
aspects necessary to be taken note of.

Israeli gay couple’s case.


Jan Balaz v Anand Municipality AIR 2010 Guj 21.

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Jurisdictions in
 Legality of surrogacy in different countries:
various countries have held different views regarding
the legalisation of surrogacy.
• In England, surrogacy arrangements are legal and the
Surrogacy Arrangements Act 1985 prohibits advertising
and other aspects of commercial surrogacy.
• In the US also, commercial surrogacy seems prohibited in
some states.
• In Australia, commercial surrogacy is illegal, contracts in
relation to surrogacy arrangement unenforceable and any
payment for soliciting a surrogacy arrangement is illegal.

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 The Union home ministry’s guidelines to regulate surrogacy
— a good step: Foreigners coming to India to have a surrogate
child must be on a ‘medical visa’ (not ‘tourist visa’). Such a visa
may only be granted if the following conditions are fulfilled:-
• The foreign man and woman are duly married and the marriage should have
sustained at least for two years.
• A letter from the Embassy of the foreign country in India or the Foreign
Ministry of the country should be enclosed with the visa application stating
clearly that (a) the country recognizes surrogacy and (b) the child/children
to be born to the commissioning couple through the Indian surrogate mother
will be permitted entry into their country as a biological child/children of the
couple commissioning surrogacy.
• The couple will furnish an undertaking that they would take care of the
child/children born through surrogacy.
• The treatment should be done only at one of the registered ART clinics
recognized by ICMR.
• The couple should produce a duly notarised agreement between the applicant
couple and the prospective Indian surrogate mother.
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 Conclusion
• Non-intervention of law in this knotty issue will not be
proper at a time when law is to act as ardent defender of
human liberty and an instrument of distribution of positive
entitlements.
• At the same time, prohibition on vague moral grounds
without a proper assessment of social ends and purposes
which surrogacy can serve would be irrational.
• Active legislative intervention is required to facilitate
correct uses of the new technology i.e. ART and relinquish
the cocooned approach to legalisation of surrogacy
adopted hitherto.
• The need of the hour is to adopt a pragmatic approach by
legalising altruistic surrogacy arrangements and prohibit
commercial ones.

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 The legal points/questions which must be decided in
any surrogacy case are:
What would be the remedy available to biological parents
to obtain exclusive legal custody of surrogate children?
• Surrogacy in India is legitimate because no Indian law
prohibits surrogacy. To determine the legality of
surrogacy agreements, the Indian Contract Act would
apply and thereafter the enforceability of any such
agreement would be within the domain of section 9 of
the Code of Civil Procedure (CPC). Alternatively, the
biological parent/s can also move an application under
the Guardians and Wards Act 1890 for seeking an order
of appointment or a declaration as the guardian of the
surrogate child.
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How can the rights of the surrogate mother be waived completely?
• In the absence of any law to govern surrogacy, the 2005 Guidelines will be
applicable. But, being non-statutory, they are not enforceable or justiciable in
a court of law.
Under paragraph 3.10.1 of the Guidelines, a child born through surrogacy
must be adopted by the genetic (biological) parents. However, this may not be
possible in case of those parents who cannot adopt in India.

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How can the rights of the ovum or sperm donor be
restricted?
 Under Section 10 of the Contract Act, all agreements are
contracts, if they are made by free consent of parties
competent to contract, for a lawful consideration and with
a lawful object, and are not expressly declared to be void.
Therefore, if any surrogacy agreement satisfies these
conditions, it is an enforceable contract. Thereafter, under
section 9, CPC, it can be the subject of a civil suit before a
civil court for adjudication of all disputes relating to the
surrogacy agreement and for a declaration/injunction as to
the relief prayed for.

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Whether a single or a gay parent can be considered to be the custodial
parent of a surrogate child?
 Essentially, this is a question which will require determination in accordance
with the surrogacy agreement between the parties. There would apparently be
no bar to either of the divorced parents claiming custody of a surrogate child if
the other parent does not claim the same. However, if the custody is
contested, it may require adjudication by a court of competent jurisdiction.

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Would a biological parent/s be considered the legal
parent of the surrogate child?
 However, the moot question which may arise for
determination is as to whether a judicial verdict
determining rights of parties in a surrogacy
arrangement is essential in respect of a foreign
biological parent who wishes to take the surrogate
child to his/her country of origin or permanent
residence. It can be said that either a declaration
from a civil court and/or a guardianship order ought
to be a must to conclusively establish the rights of
all parties and to prevent any future discrepancies
arising in respect of any claims thereto.

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 What claims does a surrogate have over the child?
In India, the surrogate is not considered as the legal
mother. As per ICMR Guidelines 2005, a surrogate
mother cannot be genetically related to the child. She is
legally and psychologically counselled that she will not be
having any rights over the child. Her rights and obligations
towards the intended parents as well the child are
formulated in the gestational surrogacy agreement.
Moreover, a child born through surrogacy shall be
presumed to be the legitimate child of the intended
parents/s and shall have all the legal rights to parental
support, inheritance and all other privileges which a child
born naturally to the intended parents/s would have had.

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Most important points in regard to the rights and obligations of
the parties to a surrogacy and rights of the surrogate child
the proposed legislation should include may be stated as
under (the following observations had been made by the
Law Commission):
[1] Surrogacy arrangement will continue to be governed by
contract amongst parties, which will contain all the terms
requiring consent of surrogate mother to bear child,
agreement of her husband and other family members for the
same, medical procedures of artificial insemination,
reimbursement of all reasonable expenses for carrying child
to full term, willingness to hand over the child born to the
commissioning parent(s), etc. But such an arrangement
should not be for commercial purposes.

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 [2] A surrogacy arrangement should provide for financial
support for surrogate child in the event of death of the
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.
 [3] A surrogacy contract should necessarily take care of life
insurance cover for surrogate mother.
 [4] One of the intended parents should be a 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 or she should be a donor to be able to have a
surrogate child. Otherwise, adoption is the way to have a child
which is resorted to if biological (natural) parents and adoptive
parents are different.

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 [5] Legislation itself should recognize a surrogate
child to be the legitimate child of the commissioning
parent(s) without there being any need for adoption 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 protected.
 [8] Sex-selective surrogacy should be prohibited.
 [9] Cases of abortions should be governed by the
Medical Termination of Pregnancy Act 1971 only.
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