[1] “reproductive tourists” looking for techniques not available

1 Supra 1


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3 9 109 N.J. 396, 537 A.2d 1227(1988)

4 https://law.justia.com/codes/new-york/2014/dom/article-8/123/

5 J.P.S. Sirohi, Criminology and Penology 700 (2012)


7 “Surrogacy Laws by
Country” Available
at: http://en.wikipedia.org/wiki/surrogacy_laws_by_country (visited on
September 13, 2013).


Although surrogacy has given hope to many, from
the unwanted to the inconceivable, the Surrogacy (Regulation) Bill, 2016 is a
step backward. The Government must make amendments if it really cares about
motherhood. Surrogacy is exceedingly complex in its social, biological,
cultural, and psychological implications. There is no unanimous agreement of an
ideal surrogacy arrangement. Granted that the practice of surrogacy in any part
of the world is not without loopholes, it does require intense regulation and a
healthy dose of realism in the Indian context nonetheless. The needed
requirements must be added to the Bill, which as of now, is divorced from
reality, and must be made into an enactment in the near fut




surrogacy laws do not require the commissioning person to be married, i.e.
single parents and divorced couples can also opt for surrogacy. This is what
the Bill lacks when it comes to catering to the right of parenthood of single
and divorced persons.


legislation makes Russia attractive for “reproductive tourists” looking for techniques not available in their
countries as foreigners have the same rights as for assisted reproduction as
Russian citizens.


surrogacy, even commercial is legal in Russia being available for practically
all adults willing to be parents. There has to be a certain medical indication
for surrogacy: absence of uterus; uterine cavity or cervix deformity and so on.7



However, the surrogate cannot
receive any other payment for carrying the child.

Such is
not the scene in the Indian Context. The Bill is silent on the fact whether or
not it is legal to reasonably reimburse the surrogate mother. It is also silent
on the fact whether surrogacy contracts with compensation of any kind are void
or not. Since it does not address either, it fails to distinguish between the
two as well. Section 541 of the Quebec Civil Code states “that any
agreement involving a woman who becomes pregnant for another person is null and
void.6” This means
that a
surrogate who carries a fetus for someone else may be reimbursed for expenses
related to the pregnancy, such as prenatal vitamins and costs of travelling to
see a doctor.


Contrary to
popular belief, surrogacy is legal in Canada. The Assisted Human Reproduction
Act, 2004 permits only altruistic surrogacy. It prohibits the provision or
acceptance of consideration to a woman for acting as a surrogate; it is illegal
to pay a surrogate mother for her services. However, it is legal to reimburse a
surrogate mother for her reasonable expenses arising as a result of the
surrogacy. But, the Quebec Civil Code renders all surrogacy contracts, whether
commercial or altruistic, unenforceable.




One of the
key elements of the surrogacy laws of the UK is required in the Indian
legislation as well. The criterion for engaging in surrogacy in India is proven
infertility and nothing else. This is highly discriminatory and restricts the availability
of such a procedure to millions of couples who suffer from an inability to bear
children other than infertility.


Surrogacy Arrangements Act 1985 combines with the sections of the Human
Fertilization and Embryology Act, 1990 to provide a workable framework within
which such arrangements can take place. One of particular concern relates to
the financial reward a surrogate may receive. The Surrogacy Arrangements Act,
1985 makes it a criminal offence for commercial surrogacy to be arranged,
punished by a fine and or up to three months’ imprisonment. It also prohibits
advertising and other aspects of commercial surrogacy.5


Laws of
England and judicial decisions of Privy Council have always been guidelines for
all the countries within Commonwealth.




In another State of the USA, the state of New
York, according to Article 8 of the New York Domestic
Relation Law4, any and all
surrogacy agreements involving compensation of any kind are considered, void
and unenforceable, similar to the laws in the UK and contrary to the proposed
law in India. In India, the Surrogacy Bill does not declare such contracts void
thus may lead to exploitation of the intending couple or the surrogate mother.
The Bill should explicitly address this issue to avoid complications after

The state of Virginia does not register the
intended parents as legal parents on birth of the child but instead requires a
legal process to have the name of the parents changed after permission is taken
both prior and after surrogacy is done. This provision is required in the
Indian surrogacy legislation as well as it protects the rights of the newborn
child from an identity crisis.

In California the traditional surrogacy is
allowed but the biological mother is still the legal mother in this case, while
in the UK and India traditional surrogacy is not legally acknowledged.

In the USA, the picture is similar in a few
states where through disputed cases; this matter has been maintained in a
status similar to Indian laws where the surrogate relinquishes all rights to
the child.


Baby M
decision inspired state legislatures around the United States to pass laws
regarding surrogate motherhood. Most of those laws prohibit or strictly limit
surrogacy arrangements.



The New Jersey court ruled that the
surrogacy contract was invalid according to public policy, recognized Mary Beth
Whitehead as the child’s legal mother, and ordered the Family Court to
determine whether Whitehead, as mother, or Stern, as father, should have legal
custody of the infant, using the conventional ‘best interests of the child’
analysis. Stern was awarded custody, with Whitehead having visitation rights.

Baby M was
a custody case that
became the first American court ruling on the validity of surrogacy. William Stern
entered into a surrogacy agreement with Mary Beth Whitehead. According to the
agreement, Mary Beth Whitehead would be inseminated with William Stern’s sperm
(making her a traditional, as opposed to gestational, surrogate), bring the
pregnancy to term, and relinquish her parental rights in favor of William’s
wife, Elizabeth. After the birth, however, Mary Beth decided to keep the child.
William and Elizabeth Stern then sued to be recognized as the child’s legal

As of March
1990, most jurisdictions in United States did not have any specific rules
concerning surrogacy. The issue of surrogate motherhood came to national
attention during the 1980s, with the Baby M case.3




Protects the rights of children born
through surrogacy.2

Specifies the eligibility conditions
to be fulfilled by surrogate mothers and couples intending to initiate a
surrogacy procedure; and

Prohibits commercial surrogacy;

Allows altruistic surrogacy to certain
Indian couples;


Surrogacy (Regulation) Bill, 2016 proposes to regulate surrogacy in India. The




contemporary world, a parent’s surrender of a child for a fee, known as baby
selling, is a crime all over the world. Many countries have regulations
limiting or prohibiting compensation of intermediaries related to the transfer
of child. Although, gestational surrogacy is partially legal in several
countries around the globe, in most jurisdictions it is not possible going to
another country to avoid the local prohibition is not always option. The
surrogacy map of the world gives better understanding of the provisions to
learn the laws across the world.




The fact
that the Surrogacy Bill fails to provide for insurance for the child born
through surrogacy proves that it overlooks such situations where commissioning
or intending parents may incur death, disability, sickness during the process
of surrogacy leaving the child parentless at birth. The Bill requires the
commissioning couples to secure appropriate insurance for the child or the
children, the surrogate delivers, at the time of signing the agreement through
an appropriate Insurance Policy like Jeevan Balya for maintenance of the child
up till the age of twenty-one years.


the health risk that surrogacy entails, a comprehensive health care should be
made an integral part of the agreement providing coverage to surrogates for a
period of 5 years starting from the date she undergoes the surrogacy procedure.
In case of any health complications/ risks and death, provision of compensation
to surrogate and her family should also be incorporated




It is
imperative that there is incorporation of the provision of Maternity Benefits
to the surrogate mother as well as the intending mother as both of them are
involved in child birth and child rearing respectively. They both should be
entitled to maternity benefits to ensure the continuity of their service and to
cover loss of wages.


The Bill
does not provide for the social security insurance for the surrogate child in
the event of death of commissioning parents during the process of surrogacy.
The earlier ART Bill 2014 provided the social security insurance for all the
three stakeholders, i.e., the surrogate mother, the surrogate child and the egg
donor. Insurance for the surrogate child in case of unforeseen contingencies
like accidental death of the commissioning parents or divorce during the
process of surrogacy is also required. Accordingly, the definition of insurance
for the surrogate child may also be incorporated in the Bill.


as given in the Clause 2(q) does not extend to the surrogate beyond the process
of surrogacy. Surrogate pregnancy is not a disease. However, it is not
risk-free and there are certain long-term health risks arising out of surrogate
pregnancy because surrogate’s complete menstrual cycles have to be altered for
an embryo to be transplanted inside her womb and large doses of hormonal
treatment are given. Surrogacy has also resulted in deaths of surrogate mothers
in many cases. A comprehensive insurance covering for the surrogate mother
covering even the after effects of surrogacy should be instituted.




is one of the least used options by childless Indians. If all these categories
are to be banned, then why have surrogacy at all? The eligibility criteria in
this regard should be modified to widen the ambit of persons who can avail
surrogacy services by including live-in couples, divorced women and widows. The
Bill should not restrict such a large spectrum of people but at the same time
should be air sealed to avoid future complications (in case of live-in
relationships and single parents remarrying).


Department of Health Research by imposing prohibition on widows and divorced
women seems to have closed its eyes to the ground reality. Besides, the
decision to keep live-in partners out of the purview of the Bill is indicative
of the fact that the Bill is not in consonance with the present day modern
social milieu that we live in and is “too narrow” in its
understanding. Even the Supreme Court has given a legal sanctity to live-in


the complication arises when such a decision is taken in the middle of a surrogacy

A single
parent might not be able to fulfil his/her responsibility completely. In the Indian
context, both the parents, mother and father, should be there to raise a child.
Since, there is no legal liability for gay couples and live-in couples, they
can get separated or get married whenever they decide to.


Supreme Court on Single parent surrogacy in India – In the
landmark case of Baby Manji Vs Union
of India (2008), the Supreme Court
acknowledges the fact that, “for certain individuals under typical medical
situation, “surrogacy is the only available option for parents who wish to have
a child that is biologically related to them.”1 In the course of judgment the apex court expressly states
that the “intended parent may be a single individual” who may equally be
allowed or permitted to commission surrogacy in India”. However, the apex court
directed the legislature to enact a regulatory statute on the same.