VOLUME 1 ISSUE 4

SURROGACY AND LAW: A CRITICAL

ANALYSIS By - ANIRUDH AGRAWAL & ROSHAN JAJU

ABSTRACT:

Nature endowed women with the world has garnered widespread attention
magnificent ability to procreate, and every and raised several concerns about human
woman cherishes the experience of rights and the rights of the child and
motherhood. Regrettably, some women surrogate mother. Globally, it is estimated
cannot give birth to their offspring due to that 15% of couples are infertile, making
certain physiological conditions. Their infertility one of the most prevalent
desire for motherhood drives them to seek medical problems. The primary reasons
alternative solutions, of which surrogacy is women choose to be surrogate mothers are
the most viable. Surrogacy is a poverty and a desire to help others, which
reproductive technique in which a woman has physical and psychological
agrees to become pregnant and deliver a consequences for the surrogate mother.
child on behalf of another party. Surrogacy Surrogacy is a growing business in various
has established itself as a reliable method countries as people seek additional income
of childbirth for infertile couples. to help them overcome financial hardship.
Surrogacy is also recognised by the Indian Surrogacy raises complex issues for
Council of Medical Research's 2005 countries' human rights laws and legal
guidelines which state that surrogacy is frameworks particularly.
used to assist people who arcannotave
children naturally. In recent years, the
rapid growth of surrogacy throughout the

ISSN NO. 2582-8665 1. ©2021 National Journal for Legal Research and Innovative Ideas
 This article provides a critical analysis of Although it appears to have been practised
the current regulation of surrogacy in throughout history by a diverse range of
India, both domestically and cultural groups, surrogacy has only
internationally, through the United Nations recently emerged as a significant social
Convention on the Rights of the Child. problem, posing legal, ethical, social, and
psychological dilemmas. With
In the current state of affairs, unregulated
advancements in medical science,
surrogacy results in flagrant violations of
legislative changes, and shifts in social
human rights. In India, the majority of
practices, surrogacy has become a
surrogate mothers are compensated in
potentially more acceptable method of
nine-month instalments. They are
family formation for more infertile and
frequently not compensated at all if they
involuntary childless individuals. Fears of
are unable to conceive and sometimes
exploitation and violation of autonomy
must forfeit a portion of their fee if they
have arisen as a result of the current lack
miscarry (Insight, 2006). Apart from moral
of international regulation of surrogacy
and ethical disagreements about surrogacy,
agreements - only a patchwork of
there are gaps in the law that occasionally
conflicting national laws that create
expose surrogate mothers to blackmail and
loopholes and eliminate protections for
crime.
both the surrogate and commissioning
KEYWORDS – SURROGACY,
couple. This article argues for the
MOTHER, HUMAN RIGHTS, CHILD
necessity of international laws, national

INTRODUCTION laws, and regulations to resolve

Globalisation and advancements in commercial surrogacy's ethical and legal

artificial reproductive techniques have issues, which results in grave violations of

created a plethora of new options for human rights. When we examine the

infertile couples worldwide in the various definitions of surrogacy provided

twentyfirst century. Developed and by various authorities, we discover that

developing countries alike are enacting a each one conveys a distinct concept based

variety of surrogacy laws. While the world on the nature or type of surrogacy.

is brimming with possibilities, various

legal and ethical constraints act as
constraints.

ISSN NO. 2582-8665 2. ©2021 National Journal for Legal Research and Innovative Ideas
 According to American Law Report, selfless, altruistic act intended to assist
surrogacy is a contract in which the natural couples who cannot have children
or surrogate mother agrees, for a fee, to naturally and provide them with the joy of
conceive a child via artificial insemination parenting. Surrogate-mother contracts or
with the natural father's sperm, to bear and arrangements involve a woman agreeing to
deliver the child to the natural father, and carry a child for another couple and then
to terminate all of her parental rights relinquishing the child at birth. The ovum
following the child's birth. may be donated by the woman who gives
birth to the child, the woman
Additionally, the Black’s Law Dictionary
commissioning the pregnancy, or a donor
categorizes Surrogacy into two classes:
other than the birth mother. Numerous
traditional and gestational surrogacy. It
countries throughout Europe have
may be commercial or altruistic depending
recognised the dangers of surrogacy
upon whether the surrogate received a
agreements and have enacted legislation
financial reward for her pregnancy or the
prohibiting or strictly regulating surrogacy
relinquishment of a child.
in the child's best interest. Germany,
In the Indian context, the Indian Council
Austria, France, Switzerland, Sweden,
for Medical Research defines 'Assistive
Norway, Italy, and Bulgaria have all
Reproductive Technology (ART)' as "all
outlawed all forms of surrogacy.
techniques that attempt to obtain a
Surrogacy is a process in which a woman
pregnancy by manipulating sperm or/and
rents her body. Surrogacy treats the child
oocytes outside the body and transferring
as a commodity, the subject of a legal
the gamete or embryo into the uterus."
contract. The purpose of surrogacy is to
The Supreme Court of India defines
fulfil adult desires, to enable foreign
surrogacy as "a method of reproduction in
parents to obtain a child at any cost. The
which a woman agrees to become pregnant
authors of this paper attempt to analyse the
to gestate and give birth to a child that she
various critical issues surrounding
will not raise but will give to a contracting
surrogacy in India.
party."

Surrogacy is promoted as a form of

medically assisted reproduction and
treatment for infertility, among other
things. It is frequently portrayed as a

ISSN NO. 2582-8665 3. ©2021 National Journal for Legal Research and Innovative Ideas
 SURROGACY FROM A LEGAL for those who are economically vulnerable
PERSPECTIVE and unable to support themselves through
available resources, as well as a 'desire' for
As it currently stands, the legal landscape
those who are otherwise incapable of
surrounding surrogacy is, to put it mildly,
reproducing or conceiving their own child.
complicated. Compared to other forms of
To protect women from exploitation, the
assisted reproductive technology,
majority of countries prohibit publicising
surrogacy legislation is a relatively recent
women interested in renting wombs and
development and is not yet universal.
condemn the practice of surrogacy. In
Countries that have taken a position in
India, a peculiar situation exists in which
favour of or against various forms of
surrogacy is not adequately regulated?
surrogacy have done so on their terms and
This is because the legal status of a
with varying results, as illustrated by the
surrogacy transaction is unknown, and
examples below.
thus surrogacy is neither legal nor
This has created an untenable situation in
expressly prohibited under the law.
inter-country surrogacy agreements, where
neither the commissioning couple nor the IS THE RIGHT TO PRIVACY
gestational surrogate receives firm INCLUSIVE OF THE RIGHT TO
REPRODUCTIVE FREEDOM?
guarantees or legal safeguards but are In India, Article 21 of the Constitution
instead confronted with a clash of national declares the 'right to reproductive choices.
legislations, taboos surrounding payments, In R. Rajgopal v. State of Tamil Nadu , the
threats of exploitation, as well as court Supreme Court held that the right to life
proceedings and parental rights conflicts includes the 'right to privacy.' A citizen has
following birth. Nowadays, the act of a the right to protect his or her privacy and
parent surrendering a child for a fee, the privacy of his or her family, marriage,
referred to as baby-selling, is a criminal procreation, motherhood, childbearing, and
offence in every country. education, among other things, in B.K.
Additionally, numerous countries have Parthasarathy v. Government of Andhra
enacted legislation restricting or Pradesh , the Andhra Pradesh High Court
prohibiting compensation for recognised reproductive rights as
intermediaries involved in transferring a fundamental. It upheld an individual's
child (Field, 1990). Surrogacy establishes 'right to reproductive autonomy as a
a contractual basis and operates based on component of his right to privacy.
desire and need. Surrogacy is a 'necessity

ISSN NO. 2582-8665 4. ©2021 National Journal for Legal Research and Innovative Ideas
 When the concept of privacy is extended In 1984, the world witnessed the first
to reproductive matters, the state's successful gestational surrogacy birth. This
interference with or restrictions on occurred for the first time in India ten
reproduction constitutes a direct invasion years later, in Chennai. The number of
of one's privacy. Thus, while the Supreme surrogacy births has increased significantly
Court in Javed v. State of Haryana upheld over the last couple of years.
the 'two living children' standard for
Doubled in 2008 alone, with estimates
disqualification from Panchayati raj
ranging from 200 to 350. (Lal, 2008). As
elections, it refrained from declaring that
previously stated, India is rapidly
the right to procreation is not a
becoming the most popular destination for
fundamental human right.
fertility tourists, owing to a number of

SURROGACY LANDSCAPES IN INDIA interconnected factors (Smerdon, 2008).

India is rapidly establishing itself as a The Confederation of Indian Industry (CII)
global leader in surrogacy and a published a study in 2002 on India's
soughtafter destination for surrogacy- potential for medical tourism development.
related fertility tourism. Indian surrogates This was recognised by India's then-
have grown in popularity among fertile Finance Minister, who desired for India to
couples in developed countries to their low become a global health destination. To
cost. Surrogacy is not a new concept in promote this growth, he devised measures
India. Commercial surrogacy, also known to facilitate the development of the
as "Womb for rent," is a rapidly growing medical tourism industry, including
industry in India. English-speaking infrastructure improvements (Chinai &
environments and more affordable services Goswami, 2007). Since 2002, commercial
attract willing clients in India. surrogacy has been legal in India.
Surrogacy is relatively inexpensive in
Surrogacy practice's future projections
India, and the legal environment is
range from the opportunity to exploitation
favourable.
from rural women in India being lifted out
of poverty to a futuristic nightmare of In 2008, the Supreme Court of India ruled
developing country baby farms. in Manji's (Japanese Baby) case that
commercial surrogacy is legal in India and
directed the legislature to enact an
appropriate law regulating surrogacy in the
country.

ISSN NO. 2582-8665 5. ©2021 National Journal for Legal Research and Innovative Ideas
 Currently, the parties' Surrogacy Contract SURROGACY MOTHERING LAWS
and the Assisted Reproductive Technique ABROAD
(ART) Clinics' guidelines serve as the Numerous foreign countries have enacted
guiding force. legislation regulating the subject in recent
years. Surrogacy (including commercial,
The Legislature, in accordance with the
fee-for-service surrogacy) is legal in
apex court's directions, enacted the ART
approximately half of the United States of
BILL, 2008, which is still pending and is
America states. Several states have enacted
expected to take effect sometime in the
surrogacy legislation. Other states, though
coming year. The Indian law commission
not expressly enacted, recognise
has conducted a thorough review of the
surrogacy. Only a few states have declared
Surrogacy Law, bearing in mind that India
surrogacy contracts null and void. Florida
is a popular international surrogacy
State has two excellent statutes that
destination. The Indian law commission
regulate surrogacy specifically. This law
has released its 228th report, titled "Need
requires a childless couple interested in
for Legislation to Regulate Assisted
such an arrangement to sign an agreement
Reproductive Technology Clinics as well
with a surrogate authorising her to carry
as the Rights and Obligations of Surrogacy
the intended father's biological child. The
Parties." The law commission made the
surrogate agrees that the intended couple
following major observations: Surrogacy
will obtain custody of the child and later
arrangements will continue to be governed
adopt it.2
by contractual agreements between the
parties, but they should not be for In California and Chio, intended parents
commercial gain. The donor's and are considered legal parents in certain
surrogate mother's right to privacy should circumstances.
be protected. Surrogacy should be
Between surrogate and child, there is no
prohibited on a sex-selective basis.
genetic parental relationship. Arkansas
Abortion cases should be governed solely
recognises intended parents as legal
by the Medical Termination of Pregnancy
parents regardless of whether the surrogate
Act 1971.1
is genetically related to the child. The
surrogate child will become the intended
1
Government of India, MOH&FW, ICMR: 2008, parents' child upon adoption.
ART (Regulatory) Bill, Ch. II, V, VII., Part I. and
Schedule I, Part 7 on Forms, 2008. p. 6-11, 20-2,
2
25-9, 81-135 Surrogacy Here in Florida: Source;
www.legalsuri-ogacv.com/surrogacv.law.html.

ISSN NO. 2582-8665 6. ©2021 National Journal for Legal Research and Innovative Ideas
 The Surrogacy Arrangements Act, 1985 other Fields. With surrogates, the opposite
prohibits commercial surrogacy and appears to be true, with the payment of a
commercial agencies from assisting in fee to a surrogate appearing to be the
establishing surrogacy arrangements in the primary factor linking surrogacy to
United Kingdom. allegations of female exploitation. While
some researchers are quick to point out
However, surrogacy agreements are not
that traditional families are no longer the
enforceable by or against the parties who
norm in post-modern society, it is virtually
enter into them.
undisputed that a child benefits most from

SURROGACY AS A BARRIER being raised in a home with married,

TO MOTHERHOOD biological parents.
In the case of surrogacy in India, it is
difficult to determine whether these SURROGACY: IT IS ABOUT
women are exercising their own personal THE MONEY, NOT THE LOVE
Over time, debates have raged about
rights or are being coerced into becoming
whether surrogacy is ethical or unethical,
surrogate mothers by their mother-in-law
whether it is done for financial gain or as a
or husband in order to meet material and
means of expressing love to those who are
financial needs. Surrogacy opponents
unable to bear children. When surrogacy is
argue that the practice is analogous to
classified as commercial or altruistic, there
prostitution and, as such, should be
can be disagreements about the same.
prohibited on moral grounds. Surrogacy
According to feminists, commercial
contracts are "dehumanising and
surrogacy exploits women and degrades
alienating" because they deny the
their social status. However, if we consider
surrogate's perspective on her pregnancy is
the altruistic aspect of it, it provides hope
legitimate3. Bromham4 made a significant
for many.
remark about the issue of exploitation in
commercial surrogacy: ‘To compel anyone The act of a woman giving birth to another
to perform similar work without woman's child is not a new occurrence.
reasonable compensation would almost Evidences of this practice can be traced all
certainly be regarded as exploitative in the way back to earlier times. Additionally,
anthropological studies document societies
3
Kevin T. The ethics of surrogacy contracts and in which the social and biological parents
Nebraska's surrogacy law. Vol. 41. Creighton Law
Review; 2008. p. 185-206 are distinct individuals.
4
Bromham DR. J Assist Reprod Genet Surrogacy:
ethical, legal, and social aspects 1995;12:509-16

ISSN NO. 2582-8665 7. ©2021 National Journal for Legal Research and Innovative Ideas
 For instance, among the Southern African The fact that Indian women earn less than
Kgatla, when a related couple is childless, women in the United States of America or
a couple may decide that their next child Russia does not imply exploitation; rather,
will be "born for" the infertile couple.5 it demonstrates the difference between
Now, as technology advances, the nominal and real wage rates. Numerous
possibilities for surrogacy arrangements surrogate mothers believe that financial
have expanded, resulting in a relatively compensation is necessary to compensate
large number of couples exercising this them and their immediate families, who
option. must endure the Pregnancy.6 Additionally,
this may bolster the surrogate mother's
The growing concern of surrogate mothers
position in some patriarchal societies by
has attracted the attention of world
increasing economic opportunity and
legislators, and as a result, different laws
individual empowerment.7
governing commercial surrogacy exist in
different countries. The central argument is
SURROGACY AS
whether or not a woman should be
EXPLOITATION: BABIES AND
compensated for this service.
MOTHERS AS COMMODITIES
Financial compensation for commercial Surrogacy divides motherhood and thus

surrogacy has a positive effect on the works against the child's best interests.

mental health of surrogates mothers. When According to current international law, the

combined with various psychological terms 'father' and mother refer to the

distancing techniques, payment facilitates individuals who are the child's legal

emotional detachment from the growing parents. Each child's maternal affiliation

foetus, resulting in an overall positive shall be determined solely by the fact of

pregnancy experience for surrogates. On birth. Surrogacy is, at its core, a form of

the other hand, salary levels vary widely exploitation. Surrogacy diminishes the

across the globe, and there are no child's dignity by transforming him or her

international standards for what a cleaner into a contracting party's property— a

should earn, what a dentist can charge, or commodity.

what a surrogate mother should earn. 6

Humbyrd C.Fair trade international surrogacy.
Dev World Bioeth 2009;9(3):1 11-18 Available
athttps:// www.ncbi.nlm.nih.gov/pubmed/?ter
7
J Health Psychol. The social organization of
5
Sharyn Roach Anleu , For Love but Not for surrogacy: relinquishing a baby and the role of
Money? Gender and Society, Vol. 6, No. 1 (Mar. payment in the psychological detachment process.
1992), pp. 30-48 Available at - 2002 Jan;7(1):57-71. Available at
http://www.jstor.org/stable/189910 https://www.ncbi.nlm.nih.gov/pubmed/2211422

ISSN NO. 2582-8665 8. ©2021 National Journal for Legal Research and Innovative Ideas
 Additionally, it degrades the mother's After signing the contract, the surrogate
dignity, even if her participation is mother is unable to withdraw. Kembrell
voluntary, by relegating her to the role of (1988) takes this a step further, claiming
the gestational oven. The exploitative that surrogacy is a novel and distinct form
nature of surrogacy arrangements and the of female slavery. Davis corroborates this
resulting commodification of women and assessment (1993). Slaves were frequently
children has brought together some used as birth or genetic mothers during the
unlikely allies. “Religious fundamentalists, period of slavery and are still used as
the Roman Catholic Church, and feminists surrogate mothers today, even though they
have all denounced contractual surrogacy had no legal rights as mothers. They have
as a form of 'baby sell-ing'—a practice that the same status as surrogate mothers in
demeans and threatens women.” contemporary times due to the children's
and indeed their own commodification.
SURROGACY AS Another parallel is that slave mothers were
EXPLOITATION - A HUMAN not permitted to speak freely about their
RIGHTS PERSPECTIVE pregnancies and children; this is also true
Kembrell (1988) asserts that surrogacy
of surrogacy due to Social stigma. Davis is
exploits women economically,
concerned that impoverished women may
emotionally, and physically. A critical
be transformed into a distinct caste of
point to keep in mind is that the majority
pregnant women who are employed
of women who become surrogates do so
(1993). She believes that by
out of desperation for financial support for
commoditizing the labour services of
their families. Additionally, agents are
pregnant surrogate mothers, money is
frequently involved in the process,
generated, implying that someone is
arranging dubious legal contracts. These
exploited. Davis continues by stating that
agreements bind women to endure the
while surrogacy appears to be a procedure
rigours of childbirth and eventually
that generates life, it appears to generate
relinquish the child (Kembrell, 1988).
sexism and profit.
Surrogate mothers are frequently unaware
of their legal rights and unable to afford
the services of an attorney due to their
financial circumstances.

ISSN NO. 2582-8665 9. ©2021 National Journal for Legal Research and Innovative Ideas
 diminishes the mother's dignity, even if her
SURROGACY FOR
participation is voluntary, by treating her
COMMERCIAL GAIN
Commercial Surrogacy enables the sale of as a 'womb for hire.' Surrogacy presents
babies and the exploitation of women. It numerous opportunities for women and
appears as although the same rings are children to be exploited. Theresa Erickson,
involved in prostitution and surrogacy in a recently convicted American attorney for
some areas. In Asia, rural young women orchestrating a lucrative illegal surrogacy
are recruited for prostitution and surrogacy ring that ex- plotted both surrogates and
using the same methods: they are lured in contracting parents, stated that her
with the promise of a respectable job, involvement in the system's abuse was
raped, and their passports are taken away. only the "tip of the iceberg.”
Surrogacy results in a psychological
SURROGACY THAT IS "FORCED."
estrangement from the gestating mothers. Concerns about forced surrogacy and
Both the mother and the child are affected manipulation arise when commercial
by detachment. The child's long-term surrogacy arrangements are used. Due to
effects can be de- reduced from those the relative youth of reproductive
observed in children placed for adoption or technologies, the intersection of human
born following donor in vitro fertilisation. trafficking and surrogacy has been largely

Because surrogacy combines elements of ignored.8 “Women's bodies are sold both

both situations and complicates matters, internally and on the international market

apart from difficulties establishing the for sex trafficking, and it appears

child's filiation and nationality, inevitable that organised crime will expand

complications may arise in a variety of into the surrogacy market and the sale of

circumstances: if the surrogate mother's women's reproductive capacity.” India,

health or life is endangered during which leads the global surrogacy market,

pregnancy, if the surrogate mother changes has raised concerns about surrogacy's

her mind and wishes to keep the child if ethics due to its lack of regulation and

the commissioning parents separate during vulnerability to exploitative situations.

pregnancy and no longer desire the child if

the child is born with a disability.
8
Karen Smith Rotabi & Nicole F. Bromfield, Will
Surrogacy diminishes the child's dignity by Global Surrogacy Be Regulated? RH REALITY
CHECK (2021, 9:00 PM),
transforming him or her into a contracting http://thetarrytownmeetings.org/sites/default/files/R
otabi_Bromfield_Will_Global_Surrogacy_be_Regu
party's property—a commodity. It also lated.pdf

ISSN NO. 2582-8665 10. ©2021 National Journal for Legal Research and Innovative Ideas
 For instance, the majority of surrogates nor the selling or lending one's body
are impoverished, illiterate, and recruited organs is legal under the Transplantation
from rural villages. Surrogacy candidates of Human Organs Act, 1994, how can a
are typically housed in clinics where they mother's relationship with her child be
are monitored 24 hours a day. There are commercialised? How is it possible to rent
additional concerns.such as "the renting of the womb, the female body organ? This
Indian women's bodies by westerners, the question takes on added significance in the
lack of counselling services available to Indian context.
surrogates following the relinquishment of
In terms of the utility of surrogacy, a
their gestational babies, and clinics' use of
higher rate of infertility is not a concern in
mandated and scheduled C-sections to
our country. We have the world's
facilitate delivery."
secondlargest population. Thus, the Indian
government should refrain from
POLITICAL ISSUES AND
commercialising and pro- moting
SURROGACY IN INDIA
Our society is characterised by its surrogacy.
adherence to traditional values and
2016 SURROGACY (REGULATION)
ideologies. Selling a woman's womb is not
BILL – COMMERCIAL SURROGACY
acceptable in this country. Humans cannot
PROHIBITED
purchase or sell everything on this planet.
With this in mind, the Government
This is a major concern in the current
introduced the Surrogacy (Regulation)
Indian context, as the country has
Bill, 2016, to prohibit commercial
developed into a surrogacy hotspot.
surrogacy and ensure children's rights
Surrogacy became legal in India in 2010
through surrogacy. If passed, the Bill will
with the passage of the Assisted
establish a comprehensive set of rules and
Reproductive Technology (Regulation)
regulations governing surrogacy and will
Bill. However, it lacked effective social
result in its stricter enforcement. The
and ethical provisions, such as child and
Surrogacy (Regulation) Bill 2016 is
mother rights. Giving birth is not merely a
summarised below.9
manufacturing process; it results in the
development of an attachment and love
between the mother and the child.
9
Additionally, in a country where neither http://indiatoday.intoday.in/education/story/s
urrogacy-bill/1/749353.html (last accessed - Jan 7,
the selling of one's body, i.e., prostitution, 2017)

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 The Bill states that only Indian couples Commercial surrogacy, abandonment of
who have been married for at least five the surrogate child, exploitation of the
years are eligible for surrogacy, provided surrogate mother, and the sale/import of
that at least one of them has been human embryos have all been classified as
diagnosed with fertility issues. violations punishable by a minimum of ten
years in prison and a maximum fine of Rs
Only close relatives, not necessarily blood
ten lakh.
relatives, will be able to offer eligible
couples altruistic surrogacy. The surrogate child will be entitled to the
same rights as a biological child.
The new Bill prohibits commercial
surrogacy entirely. If passed, the bill will have a significant
impact on the parties involved in
It also prohibits unmarried individuals,
surrogacy. Parents cannot abandon a
cohabiting couples, and homosexuals from
surrogate child, boy or girl. A surrogate
pursuing altruistic sur- surrogacy.
child will be entitled to all of the same
Foreigners, including Overseas Indians,
rights as a biological child, including
are no longer permitted to commission
property rights. The clinic or the parent
surrogacy.
couple cannot abuse a surrogate mother.
A woman may become a surrogate mother
The rationale for prohibiting commercial
solely for altruistic reasons and will not be
surrogacy is substantial, as it is intended to
compensated, except for medical expenses.
prevent poor women from being exploited.
A regulatory board for surrogacy will be
WOMB FOR HIRE - OBSTACLES AND
established at the federal and state levels.
SUGGESTIONS
The law will be applicable throughout
Despite the way surrogacy is marketed as a
India, with the exception of Jammu and
way for a close friend or family member to
Kashmir.
assist a loved one who cannot carry a baby
Surrogacy clinics will be permitted to to term in their quest for a child. The
charge for surrogacy services rendered, but majority of surrogacy arrangements are
the surrogate mother will not be between complete strangers.
compensated.

ISSN NO. 2582-8665 12. ©2021 National Journal for Legal Research and Innovative Ideas
 Most surrogates and contracting couples
view surrogacy as a business transaction
However, this emphasises the critical
from the Start, even when the surrogate is
nature of conducting a thorough
the child's genetic mother. It is critical to
psychological evaluation of surrogate
note that, despite their pre-pregnancy
mothers to minimise the risk of surrogate
belief that viewing surrogacy as a financial
mothers entering agreements solely for the
arrangement would make it easier to
purpose of empowerment. Surrogacy
relinquish the baby, many surrogates
necessitates the psychological detachment
reported that they could not maintain that
of the gestational mothers. She must avoid
mindset after birth.10
becoming emotionally attached to her
SURROGACY: A TANGLE OF child. Both the mother and the child are
COMPLICATIONS: affected by detachment. Numerous
medical and psychological studies
Surrogacy has been identified as one of the
emphasise the critical nature of the
most complex transactions ever
connections formed between mother and
encountered by the legal system or legal
child during pregnancy and the
community. The researchers in this field
significance of these connections for the
are diligently attempting to ascertain the
child's development. The child's long-term
factors contributing to the transaction's
effects can be deduced from those of
complexity. Three justifications can be
children placed for adoption or those born
advanced in this context:
following in vitro fertilisation with a donor
1) The complexity of the issues and parties because surrogacy combines aspects of
involved in a surrogacy transaction. both situations and adds complexity.

2) A lack of clarity in the law or the Kimbrell (1988) asserts that the

absence of a surrogacy statute; and overwhelming majority of women who

become surrogates do so out of financial
3) Certain prohibitions in the existing
necessity. Surrogate mothers are
framework that make surrogacy
frequently unaware of their legal rights and
transactions challenging to enforce.
unable to afford the services of an attorney
due to their financial circumstances.11

10 11
Jon Bernardes, Responsibilities in Studying Available from:
Postmodern Families, 14 J. FAM. ISSUES 35 http://www.andrewkimbrell.org/andrewkimbrell/
(1993) doc/surrogacy.pdf.

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 Horsburgh (1993) believes that once In the modern era, the commercialization
surrogates sign contracts to bear clients' of surrogacy has become a major source of
children, they are physically exploited. To concern. Surrogacy's objective has shifted
compound matters, surrogates frequently a over time from assisting infertile couples
fraction of the initial payment if the in achieving happiness to earning a living
pregnancy is terminated. through it. Numerous countries have
prohibited surrogacy or made it
Additionally, contracts may hold the
prohibitively expensive; as a result, India
mother liable for pregnancy-related risks
becomes an attractive option for foreign
such as disease, death, and postpartum
nations seeking surrogate mothers.
complications.

In 1991, France banned surrogacy, stating

that "the human body cannot be lent, CONCLUSION
rented, or sold." Many in India, Biotechnology has been dubbed the

on the other hand, I believe that century of the twenty-first century. As a

commercial surrogacy is beneficial developing country, India, like the rest of

because it results in mutual benefits that the western world, is heavily involved in

Can transform lives. According to Foster genetic engineering, which has resulted in

(1987), many surrogate mothers a slew of complications, including medical

experience emotional distress following and legal concerns. Surrogacy introduces a

the child's birth. However, Jadva et al. slew of legal and ethical issues. Surrogacy

(2003) found that surrogate mothers do not is complicated and involves various legal

appear to suffer psychological distress due systems or law issues when enacting

to their surrogacy arrangements. While it regulations. These influences are

is recognised that some women experience multifaceted, encompassing emotional,

emotional distress upon handing over the natural, ethical, medical, financial, and

baby or as a result of others' reactions, sociological dimensions. While numerous

these feelings appeared to subside in the human trafficking and exploitation cases

weeks following birth. have received widespread international

attention, others, such as surrogacy, have
gone unnoticed.

ISSN NO. 2582-8665 14. ©2021 National Journal for Legal Research and Innovative Ideas
 Surrogacy commodifies both the surrogate problems and the legal issues surrounding
mother and the resulting child, resulting in surrogate mothering.
surrogate exploitation and a problematic
parental situation for the child. As
additional information about illegal
surrogacy rings becomes available, it
becomes clear that they are only the tip of
the iceberg.

Even arrangements for surrogacy that

appear to be voluntary and motivated by
altruistic ideals violate the mother and
child's human dignity when examined
closely. Surrogacy inherently transforms a
woman's body into a 'bread oven,' a
commodity to be used and cared for while
fulfilling a purpose and then abandoned
once the "contract" is fulfilled. Numerous
countries have already passed legislation
restricting or prohibiting surrogacy. In
India, surrogacy is purely a contractual
relationship between the parties. Due care
must be taken to ensure that any such
agreement does not violate any applicable
laws or ethical standards. India is almost
certainly the only country in the world that
worships only female deities in artistically
constructed temples. However, India's
reproductive political history reveals a
proliferation of rhetoric and policies to
discourage poor women from reproducing.
The authors believe that pursuing
surrogate mothering legislation will benefit
childless couples by resolving their

ISSN NO. 2582-8665 15. ©2021 National Journal for Legal Research and Innovative Ideas