Surrogacy in India and legality of Surrogate Parents

data-matched-content-ui-type="image_card_sidebyside" data-matched-content-rows-num="1" data-matched-content-columns-num="4"

Surrogacy’s focus is actually for in fertility and not infertility. Surrogacy means when another woman bears a child or gives birth to a baby for a couple who wish to have a child of their own rather than from adoption.  If a woman’s medical condition makes it very difficult for her to get pregnant or to give birth Surrogacy is the answer for her. When a woman has recurrent loss of pregnancy, has womb’s malformation, or IVF’s failures, Surrogacy can be the best option. Full surrogacy which is also called as Host Surrogacy happens when embryo is created using eggs and sperm of intended parents or intended father’s sperm used to fertilise the donated egg, or embryo created by donor’s eggs and sperm. Surrogacy depends upon few factors like Surrogate’s ability to get pregnant, age of the egg donor, success of IUI and IVF procedures. Another main important factor that affects the chances of pregnancy is the age of the woman who gives the egg. [1]

In India Commercial Surrogacy is legal but we still need legislation that can control such a surrogacy. Indian Council of Medical Research (ICMR) have set national guidelines to regulate surrogacy.[2]  Law Commission of India report number 228 of 5 August 2009 states about the need to make legislation to regulate assisted reproductive technology clinic and also the right and obligations of parties in a surrogacy.[3] Surrogacy meaning has been given by the commission as, it is a word derived from Latin word “Surrogatus” means substitute, a person who is appointed to act in place of another.  “The Report of the Committee of Inquiry into Human Fertilization and Embryology or the Warnock Report (1984) defines surrogacy as the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth” is stated in the bill. In B K Parthasarthi v Government of Andhra Pradesh High Court held that the right to reproduce is part of right to privacy of an individual and characterised that the right to reproduce is the basic civil right of a man [4].

Under National Guidelines for Accreditation Supervision and Regulation of ART Clinics, that has been enacted in 2005 by Indian Council of Medical Research and National Academy of Medical Sciences any surrogate mother cannot be consider as a legal mother of the child born out of surrogacy and birth certificate will be given with the genetic parents name on it and not the surrogate mother.[5]

In Baby Manji Yamada vs Union of India 29 September 2008 where a Japanese grandmother filed petition under Article 32 of the Constitution and the Supreme Court held that, in commercial surrogacy matters, intended parent can be a single male, and court allowed the baby to be given to the Japanese grandmother for care[6].

data-matched-content-ui-type="image_card_sidebyside" data-matched-content-rows-num="1" data-matched-content-columns-num="4"

Since 2002 India has become a leader of commercial surrogacy and many critics allege that such business exploits poor women in India where maternal mortality ratio is already high and the business in this field has touched almost $445 million a year.[7]  Main points that has been stated by the commission are that surrogacy arrangement will be governed by contracts and it should not be for commercial purpose only.  The arrangement also be such that upon death of commissioning couple or individual before delivery of the child should get financial benefits/support.  Surrogate mother also should get life insurance cover under the surrogacy contract.  Donor’s privacy and surrogate mother’s privacy should be protected. Sex selective surrogacy should be prohibited and abortion cases should be observed by Medical Termination of Pregnancy Act 1971.[8]

Surrogacy in India is very simple and more cost effective than anywhere else in the world.  Since 2008 when Supreme Court confirmed that commercial surrogacy is permitted in India many foreign nationals are eying India to become parents through surrogacy and thus it has increased the international confidence too.[9]  Law commission of India (2009) has stated that ART industry is “RS 25,000 Crore pot of gold” but has recommended only altruistic surrogacy and not commercial ones.[10]

Surrogacy is a purely contractual matter in India between the parties and utmost care has to be taken while drafting agreement that it will not violate any laws. Indian government has framed an ART regulations draft bill in 2010 but it is still pending and not put up before parliament. This law needs much discussion and debate in relation to its legal, social and medical aspect. Without proper legal framework couples can be misled and surrogates can be exploited. [11]

data-matched-content-ui-type="image_card_sidebyside" data-matched-content-rows-num="4" data-matched-content-columns-num="4"

 by Sushma Javare.

  1. Human Fertilisation & Embryology Authority, Surogacy, (http://www.hfea.gov.uk/fertility-treatment-options-surrogacy.html#1) accessed on 04 March, 2015.
  2. Dr Puja Rathi, Is surrogacy legal in India?(http://www.mdhil.com/laws-on-surrogacy-in-india/ ) accessed on 04 March, 2015.
  3. Law Commission of India report number 228, 5th August 2009 (http://lawcommissionofindia.nic.in/reports/report228.pdf) accessed on 04 March, 2015.
  4. B K Parthasarthi v Government of Andhra Pradesh, 14 September, 1999(http://lawcommissionofindia.nic.in/reports/report228.pdf) accessed on 04 March, 2015
  5. Supra Note 3
  6. Anil Malhotra, Ending discrimination in surrogacy laws, The Hindu May 3, 2014 (http://www.thehindu.com/opinion/op-ed/ending-discrimination-in-surrogacy-laws/article5970609.ece) accessed 04 march, 2015
  7. Anu, Kumar P, Inder D, Sharma N, Surrogacy and women’s right to health in India: Issues and perspective. Indian Journal of Public Health 2013;57:65-70 (http://www.ijph.in/article.asp?issn=0019-557X;year=2013;volume=57;issue=2;spage=65;epage=70;aulast=Anu%2C) accessed on 04 March, 2015
  8. ibid
  9. Mrs. Madhu P. Singh, Surrogacy and Surrogacy Laws In India (http://wscpedia.org/index.php?option=com_content&view=article&id=264%3Asurrogacy-and-surrogacy-laws-in-india&catid=4&Itemid=36) accessed on 04 March, 2015
  10. ibid
  11. Anu, Kumar P, Inder D, Sharma N. Surrogacy and women’s right to health in India: Issues and perspective. Indian Journal of Public Health 2013;57:65-70 (http://www.ijph.in/article.asp?issn=0019-557X;year=2013;volume=57;issue=2;spage=65;epage=70;aulast=Anu%2C) accessed on 05 March, 2015