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Presented by:
Gargi Jha, 542
Iswarya Balakrishnan, 545
Kunal Chandra Agrawal, 571
Satyam Thareja, 574
 Introduction
 Origin from Latin word ´subrogareµ
´subrogareµ meaning ´appointed to act in the
place ofµ.

 Problem of Infertility & one of the easily available solutions to this

being conceiving through surrogate mother.

 Woman agrees to become pregnant for the purpose of gestating &

giving birth to a child she will not raise but hand over to a contracted
party.

 Ovum & Sperm: can be from the couple desiring the baby/ can be
from third party donor.

 Process criticized on moral grounds: (a) leads to commodization of

child; (b) breaks the bond between the mother and the child; (c)
interferes with nature; (d) leads to exploitation of poor women in
underdeveloped countries who sell their bodies for money.
 Contd/--
Contd/
 Surrogacy contracts may be often breached
due to: (a) fear, (b) anxiety & (c) economic
conditions.

 Does specific performance of the contract

lie as a remedy with the infertile couple, who
have spent their hard-
hard-earned money and
vested hope in the surrogate mother?

 Possibility of breach of contract by the

infertile couple, leaving the surrogate
mother with a child, when she hadn·t planned
on one. Remedy?
Status of Surrogacy Contracts
abroad
 Article 16.1 of UDHR, 1948: ´Men and women of full age
without any limitation due to race, nationality or religion have
the right to marry and found a family.µ

 England: Surrogacy Arrangements Act, 1985-

1985- Surrogacy
arrangements legal but prohibits advertising & other aspects
of commercial surrogacy.

 US: Commercial Surrogacy prohibited in many states.

 Baby M Case of 1988 in US-US- New Jersey Supreme Court

allowed custody to commissioning parents in the ´best interest
of the child,µ
child,µ & came to the conclusion that surrogacy contract
is against public policy.
 Contd/--
Contd/
 Australia: Commercial surrogacy illegal,
contracts in relation to surrogacy
arrangement unenforceable & any payment for
soliciting a surrogacy arrangement illegal.

 Kirkman sisters· case in Victoria in 1988,

Australia: sparked much community & legal
debate. Australian States attempted to
settle legal complications in surrogacy.
 Issue of Motherhood
 US case of Jaycee B v Superior Court-
Court- showed how surrogacy can lead to
array of legal complexities regarding motherhood.

 In this case a child born to a surrogate mother using sperm and eggs from
anonymous donors because the infertile couple was unable to create their own
embryo using the in vitro fertilization techniques.
techniques.

 The couple chose to use anonymous donors rather than asking the surrogate to
use her own eggs because of the Baby M case in New Jersey in which the
surrogate had eventually refused to hand over the baby saying that she was
its biological mother and her right to raise the child pre-
pre-empted the
commissioning parents.·

 The child thus had five people who could lay claim to parenthood ² a genetic
mother, a commissioning mother, a surrogate mother, a genetic father and a
commissioning father.

 One month prior to the birth of the baby Jaycee the intended parents John
and Luanne separated and John sought to rescind his obligations under the
surrogacy contract so as to avoid having to pay child support for Jaycee.

 A Californian court granted temporary custody of the baby Jaycee to Luanne

and ordered John to pay for child-
child-support.
 Contd/--
Contd/
 UK: Surrogate mother is the legal mother-
mother- section 27(1) of
the Human Fertilisation and Embryology Act, 1990.

 Section 30 of the said Act: If the surrogate mother consents

to the child to be treated as the child of the commissioning
parents the court may make a parental order to that effect.

 It prohibits giving or taking of money or other benefit (other

than expenses reasonably incurred) in consideration of the
making of the order or handing over of the child.

 US (Gestational Surrogacy Act, 2004) & India: surrogate

mother not considered to be the legal mother.

 In most Western countries, commercial surrogacy is either

banned or sharply regulated.
 Status in India
 No legislation to regulate the practice of
surrogacy .

 Guidelines on the issue-

issue- National Guidelines
for Accreditation Supervision & Regulation of
ART Clinics in India, 2005; Ethical Guidelines
for Biomedical Research on Human
Participants, 2006

 Bill pending: Assisted Reproductive

Technologies (Regulation) Bill, 2010
 National Guidelines for Accreditation
Supervision & Regulation of ART Clinics in India,
2005
 Issued by Ministry of Health and Family Welfare, in
collaboration with the Indian Council for Medical
Research (ICMR), the National Academy of Medical
Sciences (NAMS), New Delhi.

 To provide guidelines to clinics practicing Artificial

Reproductive Techniques (ART).

 Throw some light on the procedure to be adopted in

the practice of surrogacy.

 Do not have the force of law.

 Important principles in the
Guidelines
 Surrogacy by assisted conception should normally be considered
only for patients for whom it would be physically or medically
impossible/undesirable to carry a baby to term.

 Advertisements regarding surrogacy should not be made by the

ART clinic. Responsibility of finding a surrogate mother should rest
with the couple, or a semen bank.

 A surrogate mother should not be over 45 years of age & ART

clinic must ensure (and put on record) that the woman satisfies all
the testable criteria to go through a successful full-
full-term
pregnancy.

 A relative, a known person or a person unknown to the couple may

act as a surrogate mother for the couple & in the case of a relative
acting as a surrogate, the relative should belong to the same
generation as the women desiring the surrogate.

 A prospective surrogate mother must be tested for HIV and shown

to be seronegative for this virus just before embryo transfer.
 Contd/--
Contd/
 The prospective surrogate mother must also declare that she will
not use drugs intravenously, and not undergo blood transfusion
excepting of blood obtained through a certified blood bank.

 No woman may act as a surrogate more then thrice in her lifetime.

 A surrogate mother carrying a child biologically unrelated to her

must register as a patient in her own name.

 The birth certificate issued to a child born to a surrogate mother

should be in the name of the genetic parents and not in the name
of the surrogate mother.

 Payments to surrogate mothers should cover all genuine expenses

associated with the pregnancy. All the expenses of the surrogate
mother during the period of pregnancy and post-
post-natal care relating
to pregnancy should be borne by the couple seeking surrogacy.
 Contd/--
Contd/
 Surrogate mother would also be entitled to a monetary
compensation from the couple for agreeing to act as a surrogate.

 ART clinic must not be a party to any commercial element in donor

programmes or in gestational surrogacy.

 An oocyte donor cannot act as a surrogate mother for the couple

to whom the oocyte is being donated.

 A third-
third-party donor and a surrogate mother must relinquish in
writing all parental rights concerning the offspring.

 A child born through surrogacy must be adopted by the genetic

(biological) parents unless they can establish through genetic
(DNA) fingerprinting (of which the records will be maintained in
the clinic) that the child is not theirs.

 A child born through ART shall be presumed to be the legitimate

child of the couple, born within wedlock, with consent of both the
spouses, and with all the attendant rights of parentage, support
and inheritance.
 Contd/--
Contd/
 Children born through the use of donor gametes shall not have any
right whatsoever to know the identity (such as name, address,
parentage, etc.) of their genetic parent(s).

 ART used for married woman with the consent of the husband does
not amount to adultery on part of the wife or the donor. However
without the husband·s consent it can be a ground for divorce or
judicial separation.

 Conception of the wife through AIH (Artificial Insemination with

husband sperm) does not necessarily amount to consummation of
marriage & a decree of nullity may still be granted in favour of the
wife on the ground of impotency of the husband or his wilful
refusal to consummate the marriage.

 The Indian Evidence Act, 1872, says that a child born within 280
days after dissolution of marriage (by death or divorce) is a
legitimate child since that is considered to be the gestation period,
But a child born to a woman artificially inseminated with the stored
sperms of her deceased husband must be considered to be a
legitimate child notwithstanding the existing law of presumptions
under our Evidence Act.
 Ethical Guidelines for Biomedical
Research on Human Participants, 2006
 Similar to the ART clinic Guidelines in certain aspects but
with a few additional points.

 Surrogacy should be resorted to only when it is coupled with

authorized adoption wherever applicable.

 The intending parents should have a preferential right to

adopt the child subject to six week·s postpartum delay for
necessary maternal consent.

 Their claim for the custody of the child in its best interest
through adoption would be, to establish that the child is
theirs through genetic (DNA) fingerprinting, of which the
records will be maintained in the clinic.

 Surrogacy should be resorted to only if medically certified

as the only solution to infertility or any other medical bar on
pregnancy by the intending mother.
 Contd/--
Contd/
 Abortion under the Abortion Law on the medical
ground should be inviolate right of the surrogate and
the genetic parents have no claim over the amounts
already paid.

 The contract for surrogacy should be legally

enforceable. It should provide for all expenses related
to medical management during pregnancy, delivery, and
immediate postpartum period till adoption and should
be borne by the intending couple.

 Monetary compensation for agreeing to be the

surrogate may also be specified in the agreement.

 The child shall have a legal right to parental support,

inheritance, and all other privileges of a child born to a
couple through sexual intercourse.
 Assisted Reproductive Technologies
(Regulation) Bill, 2010
 In 2010 the Assisted Reproductive
Technologies (Regulation) Bill released
because of the lapse of the 2008 Bill.

 Bill drafted by a 12-

12-member committee
comprised primarily of medical experts
from ICMR and the Ministry of Health.
 ]ajor Provisions
 The commissioning parties and the surrogate mother must
enter into a surrogacy agreement which will be legally
enforceable to ensure that surrogacy agreements are
treated on par with other contracts and the principles of
the Indian Contract Act, 1872 and other laws applicable to
these kinds of agreements.

 Single persons may also go for surrogacy arrangements.

 Child born will have all the rights just like a child born out of
sexual intercourse has.

 Couple seeking surrogacy must bear all expenses, including

the insurance expenses, if any, incurred during pregnancy
and the delivery of the child.

 Surrogate mother may also receive monetary compensation

for agreeing to act as a surrogate.

 Surrogate must relinquish all parental rights over the child.

 Contd/--
Contd/
 Woman serving as a surrogate must be between
the ages of 20 and 35 and may not serve as a
surrogate for more than five live births.

 Commissioning parties must approach registered

semen banks or advertise to arrange surrogate
mothers; clinics are allowed to arrange surrogates.

 Birth certificate for the child will bear the names

of the child's genetic parents/parent and not the
surrogate.

 Surrogate mother shall be given a certificate by

the person or persons who have availed of her
services, stating unambiguously that she has acted
as a surrogate for them.
 Contd/--
Contd/
 Commissioning parties legally bound to accept the child regardless
of any abnormality the child may have & the refusal to do so
constitutes an offence.

 A foreigner or foreign couple not resident in India, or a non-

non-
resident Indian individual or couple, seeking surrogacy in India shall
appoint a local guardian who will be legally responsible for taking
care of the surrogate during and after the pregnancy, till the child
is delivered to the foreigner or foreign couple or the local
guardian.

 The foreign party seeking the surrogacy must ensure and establish
to the assisted reproductive technology clinic through proper
documentation clearly and unambiguously stating that the country
permits surrogacy and the child born through surrogacy in India,
will be permitted entry in the Country as a biological child of the
commissioning couple.

 If the foreign party seeking surrogacy fails to take delivery of the

child born to the surrogate mother commissioned by the foreign
party, the local guardian shall be legally obliged to take delivery of
the child and be free to hand the child over to an adoption agency,
if the commissioned party or their legal representative fails to
claim the child within one months of the birth of the child.
 Contd/--
Contd/
 Child born of surrogacy is considered the legitimate child of the
commissioning parties, even if the commissioning couple separates
or gets divorced after going for surrogacy but before the child is
born.

 A couple or an individual shall not have the service of more than

one surrogate at any given time.

 Child born of surrogacy would have the right to obtain non-

non-
identifying information about the surrogate upon attaining the age
of 18.

 Legal guardian of a minor child may apply for any information,

excluding personal identification, about his / her genetic parent or
parents or surrogate mother when required, and to the extent
necessary, for the welfare of the child.

 Personal identification of the genetic parent or parents or

surrogate mother may be released only in cases of life threatening
medical conditions, which require physical testing or samples of the
genetic parent or parents or surrogate mother.
 Critique of the Bill
 It indirectly promotes commercial surrogacy by providing for
monetary consideration to the surrogate apart from all the expenses.

 It treats a surrogate as a baby-

baby-making machine.

 It does not give surrogate mother the option for deciding whether
she wants to keep the baby in case if the commissioning parents die.

 It allows a woman to be a surrogate upto 5 times which can be

detrimental to the health of the surrogate, who may continue to
undergo surrogacy to earn money even if her health does not permit
the same & this can even cause the death of the surrogate.

 It does not provide for the compulsory Life Insurance of the

surrogate by the commissioning parents which the 228th Report of
the Law Commission of India subsequently mentions the same, keeping
in mind the risk of death associated with pregnancy.
 Contd/--
Contd/
 It neither creates, nor designates or
authorizes any court or quasi-
quasi-judicial
forum for adjudication of disputes
arising out of surrogacy agreements.

 It does not state as to how the genetic

constitution of the surrogate baby be
established and recorded with
authenticity.
 Law Commission of India
Recommendations
 228th Report of the Law Commission of India, titled
¶Need for Legislation to regulate Assisted
Reproductive Technology clinics as well as Rights and
Obligations of parties to a Surrogacy· submitted in
August 2009 states that the 2008 Bill prepared by
the IC]R is full of lacunae and it is incomplete.

 It makes a major recommendation:-

recommendation:- 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 custody of
the child.
 Judicial Pronouncements in India
 Judiciary has recognized the reproductive right of
humans as a basic right.

 B. K. Parthasarthi v Government of Andhra Pradesh:

Pradesh:
AP HC upheld the right of reproductive autonomy of
an individual as a facet of right to privacy.

 Agreed with the decision of US Supreme Court in

Jack T. Skinner v State of Oklahoma
Oklahoma-- right to
reproduce one of the basic civil rights of man.

 Javed v State of Haryana

Haryana-- refrained from stating
that the right to procreation is not a basic Human
Right.
 Contd/--
Contd/
 If reproductive right gets constitutional protection, surrogacy which
allows an infertile couple to exercise that right also gets the same
constitutional protection.

 Immigration issues with respect to infants born to surrogates in

India first arose with the immigration of twins born at Dr. Patel's
Akanksha Fertility Clinic in Anand in 2004.

 Baby Manji Yamada v Union of India (Supreme Court): dealt with the
production/custody of a child given birth by surrogate.

 Jan Balaz v Anand Municipality: The surrogate mother did not lay
claim to the child, but the some questions does arise:
(a) What if the surrogate mother claims parentage?
(b) What if the father too was not genetically related to the twins?
(c) What happens when an Indian Birth Certificate is not recognised
in another country?
(d) What if a commissioning couple resides in or moves to a state that
prohibits surrogacy arrangements?
The matter has come before the Hon·ble Supreme Court of India and
is yet to be decided.
 Conclusion
 In India, there is no Law governing the issue of surrogacy and even
commercial surrogacy is allowed and the surrogate mother hardly has
any right other than the right to seek money at the time of entering
into the contract of surrogacy.

 It has led to exploitation of poor women, who become surrogate

mothers for a meager sums like Rs. 25,000/-
25,000/-.

 The absence of any Law regulating the issue of surrogacy has led to
serious legal issues relating to surrogacy agreements by foreign
citizens or non-
non-resident Indians, who come to India and commission
surrogacy with Indian ladies.

 It leads to issues like the parentage of the child & nationality and
causes great hardship at the time of transfer of the child to the
country of the commissioning parents.

 The Draft ART Bill, 2010 can go a long way to solve the aforesaid
problems, provided the Government takes into account the lacuna and
the errors relating to the Rights of the surrogate mother, as pointed
out in the Critique to the said Bill.
Thank You!