THE COMPLICATIONS OF SURROGACY

This article was written by Vineet Kumar a student of National Law University Odisha. 

Surrogacy has emerged as a worldwide practice in the recent years. It has acted as a gift for those who are unable to conceive because of any deficiency. A surrogate-motherhood arrangement is one in which a woman agrees to bear a child for a commissioning couple.^[1] But it is still at a developing stage in many nations. Surrogacy is a recognized method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party.  She may be the child’s genetic mother (the more traditional form of surrogacy) or she may, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo.  The ‘industry of reproductive outsourcing’ referring particularly to commercial gestational surrogacy, is estimated to be worth over 4 billion USD^[2]. While annually it was estimated to be a business of 0.5 billion USD in the year 2008^[3], it has been estimated to be 2.3 billion USD industry in India in 2012^[4]. The industry worth such a fortune still lacks strong legal framework worldwide. India is amongst those countries where the fate of commercial surrogacy is still not clear.  It has been granted a legal status in the Georgia and some states of USA like California; Ukraine, Thailand, India whereas it is still illegal in France, Germany, Italy, Belgium, Saudi Arabia, Netherlands, Japan. Sweden is still not clear about its views on surrogacy. Though widely regarded as one of the most feasible surrogacy markets, India falls under the category of nations where many legal complications arise in case of surrogacy.

Because of lesser inconvenience, less restrictions and low or affordable cost of procedures, foreign parents prefer to come India to find suitable mothers because of which it is becoming the commercial capital of the world. Though this method of artificial reproduction is not completely illegal in India, there are no proper laws governing it. . Article 16.1 of Universal Declaration of Human Rights 1948 says, inter alia, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family”.^[5] The Judiciary in India too has recognized the reproductive right of humans as a basic right.^[6] In the case of B. K. Parthasarthi vs. Government of Andhra Pradesh^[7], The High Court of Andhra Pradesh upheld the “right of reproductive autonomy” of an individual facet of his ‘right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner vs. State of Oklahoma^[8], which characterised the right to reproduce as “one of the basic civil rights of man”. Jurisdictions all around the world have expressed different views concerning legislation for surrogacy. In England, surrogacy arrangements are legal and the Surrogacy Arrangements Act 1985 prohibits advertising and other aspects of business surrogacy. Even in the United States, commercial surrogacy is prohibited in many states. Though the New Jersey Supreme Court, in the popular Baby M. Case^[9], allowed the custody to the commissioning parents “in the best interest of the child”, it came to a conclusion that surrogacy contract is against public policy. Also, in a recent surrogacy cxase in the state of Winsconsin, the the U.S. Supreme Court held that a woman’ agreement to give birth to a bay for a childless couple is an enforceable contract apart from the provisions that would terminate her parental rights over the child.^[10]

Baby Manji Case: The most well-known case decided by Hon’ble Supreme Court of India, Baby Manji Yamada v. Union of India^[11], is a landmark judgment on the field of surrogacy. In this case, the question before the Court was regarding the custody of a surrogate child borne by a surrogate mother in Anand, Gujarat under a surrogacy contract with her entered into by Dr. Yuki Yamada and Dr. Ikufumi Yamda of Japan. The sperm was contributed by Dr. Ikufumi Yamada but Dr. Yuki Yamada was not the egg donor. There were matrimonial discord between the commissioning parents. The genetic father Dr Ikufumi Yamada, who wanted the custody of the child had to return the Japan because of expiration of visa and thus, the birth certificate was issued by the Municipality at Anand, indicating the name of the genetic father. The grandmother of the baby, Ms. Emiko Yamada filed a petition in Supreme Court of India under Article 32 of the Constitution of India. She was directed to the National Commission for Protection of Child Rights constituted under the Commissions for Protection of Child Rights Act 2005 and finally, after legal battle she was awarded the baby Manji Yamada by the Supreme Court.  Most significant point is that the Court ruled that the Surrogacy Agreement was valid in India.

Israeli gay couple’s case: Another case which made headlines was the case of Israeli gay couple Yonathen and Omer who could neither adopt nor have surrogacy in Israel. ^[12] They came to Mumbai for surrogacy and Yonathen donated his sperm. The contract ended when they were handed over Baby Evyatar. The couple took their child to Israel where they were required to prove their parenthood by the way of D.N.A. test before any passport or other documents were prepared.

German couple case:  most recently in the matter of Jan Balaz vs. Anand Municipality^[13], a German couple entered into a contract with a surrogate mother named Marthaben Immanuel Khrishti who bore two children for the couple. The children required an Indian passport to travel and the parents were working in United Kingdom and due to ongoing litigation over their citizenship, the authorities had withheld their passports. Their parent states does not recognize surrogacy. The Apex Court denied the passports but granted an exit permit to the children and the German authorities decided to give the couple an opportunity to adopt the children and fight for their rights.   

From an analysis of the Jan Balaz case and other referred cases, one can easily imply that mere contract was insufficient for demarcating the rights of the parties and raised the issues regarding the citizenship and identity of both parents and the child. Such matters are of great importance but still do not find a place in the surrogacy agreements. Another shortcoming of surrogacy contract is that sometimes free consent cannot be said to have been achieved because of unequal balance between the parties i.e. the commissioning parents and the surrogate mother due to the fact that the surrogate mothers are generally not strong financially and are economically oppressed than the intended parent.^[14] And hence they are vulnerable to be induced by the monetary value of this method. It is also a well known fact that in some cases, the husbands of the surrogate mothers use them for financial gains and force them to bore child for others. The comparative illiteracy and powerlessness of the poor surrogate mothers also ensure up to a certain extent that they have less bargaining powers in surrogacy contracts and they forgo their rights. It is worth mentioning that though a requirement for the eligibility of a woman to become a surrogate is that she should have had a child before, in no way will the surrogate be able to comprehend prior to the agreement, the feeling of giving away a child that is carried in her womb.^[15]

Indian scenario

With an aim to bring surrogacy under strict purview of judiciary, the Assisted Reproductive Technique Bill, 2014 (ART Bill) (which is an amended version of the ART Bill, 2008) has been introduced in India. The new draft is already facing questions on barring foreign nationals from procuring surrogacy in India. It seems to focus mainly on the issues of rights of surrogate mothers in India and the children born through surrogacy. But it is silent on the issue of single men and women obtaining parenthood through surrogacy. The bill also proposes strict regulations over ART clinics who play a big role in surrogacy contracts and categorises the use of brokers or middlemen to obtain potential surrogate mothers or gamete donors as an offence and provides for an imprisonment of three years.^[16] Instances like, gay or unmarried couples procuring surrogacy in India in spite of the ICMR restrictions, which permits solely married couples of a minimum of 2 year for bearing a child through IVF or surrogacy, would be forbidden, if the ART (Regulation), 2014 Bill draft is passed as a law in the Indian parliament. The bill empowers the National Advisory Board to act as a regulatory body laying down policies and regulations and also seeks to set up State Advisory Boards that can, not only advise the state governments but also be charged with monitoring the implementation of the provisions of the Act, specifically with functioning of the ART clinics, semen banks and research organisations.^[17]

While not using the word ‘intending’ anywhere, its implications are nevertheless clear. Firstly, it categorically states that donors, at the time of donation, and surrogate mothers, after delivery, shall relinquish all parental rights (s.33(3), 34(4)).^[18] Secondly, it bars the surrogate mother from also being an oocyte donor – in other words, traditional surrogacy (s.33(13)).^[19] The foreign national opting for surrogacy in India have to appoint a local guardian who will be legally entrusted with the surrogate mother’s rights until the baby is handed over to them. They are also required to establish to the clinic through documentation their ability to take the child back with them.^[20] There is also a restriction on ART clinics from providing any information ‘about surrogate mothers or potential surrogate mothers to any person’.^[21] Also, the strict confidentiality requirements^[22] would render it difficult for a personal entity outside the horizon of this law to meet this role given their inability to access info even for verification functions. Introducing a caveat on the lines of s.33(2) (that applies to donors) allowing for the discharge of private info at the discretion of the surrogate would possibly yield such a clear stage within the future.

To conclude, it can be said that the debate will always be there. But no matter what we conclude in this debate, the real results can be seen only by implementation of the laws on surrogacy. It evaluated comprehensively, it is a win-win situation for both trhe parties involved in a surrogacy agreement. Like Ela Gandhi said “A law alone cannot solve the problems of society, the attitude of the people need to change.” We need to bring about a change in the mind-set of the people. There is an urgent need of awareness about issues around surrogacy and the ways of offsetting the unethical and negative aspects of its commercialization. This is an issue involving both national and trans-national solutions.^[23]

[1] Rachel Cook et al., Introduction to SURROGATE MOTHERHOOD: INTERNATIONAL PERSPECTIVES 1

(Rachel Cook et al. eds., 2003).

[2] Kohli 2011

[3] Warner 2008

[4] Raja and Ajay, 2013 (Available at http://paa2015.princeton.edu/uploads/152404)

[5] Art. 16.1, The Universal Declaration of Human Rights, 1948 (Accessed at: http://www.un.org/en/universaldeclaration-human-rights/)

[6] Law Commission of India Report 228

[7] AIR 2000 A. P. 156

[8] US 535

[9] In re Baby M, 537 A.2d 1227

[10] Rosecky vs. Schissel (In re Paternity of F.T.R.), 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634

[11] JT 2008 (11) SC 150

[12] The Times of India, Mumbai, 18.11.2008

[13] AIR 2010 Guj 21

[14] Commercial      Surrogacy- The Need for Regulation, (Accessed at: http://www.legalservicesindia.com/article/print.php?art_id=1188)

[15] Ibid

[16] Assisted Reproductive Technique Bill 2015 (Accessed at:

http://www.prsindia.org/uploads/media/draft/Draft%20Assisted%20Reproductive%20Technology%20(Regulati on)%20Bill,%202014.pdf)

[17] Ibid

[18] The Draft ART Bill, Dilip Rao (10.10.08) (Accessed at: http://lawandotherthings.blogspot.in/2008/10/draft-artbill-2008.html)

[19] Ibid

[20] Sec. 34(19), Draft ART Bill, 2008

[21] Sec. 34(14), Draft ART Bill, 2008

[22] Sec. 34(12, (14), Draft ART Bill, 2008

[23] Surrogacy: Whose Baby is it?, Hariharan Kumar (16.11.14) (Accessed at:

Surrogacy: Whose Baby is it?