Surrogacy

Meaning
◦ The word ‘surrogate’ has its origin in Latin term “Surrogatus” which
means a substitute, that is, a person appointed to act in the place of
another.
◦ According to the Black’s Law Dictionary, Surrogacy means the process
of carrying and delivering a child for another person.
◦ Section 2(aa) of the Draft Assisted Reproductive Technologies
(Regulation) Bill, 2010 (in short ART Bill) also defines “Surrogacy
(gestational) as an agreement in which a woman agrees to a pregnancy
achieved through an assisted reproductive technology in which neither of
the gametes belong to her or her husband, with the intention to carry it
till term and hand over the child to the person or persons for whom she is
acting as a surrogate”.
◦ The ART Bill 2010 also defines the term ‘surrogate mother’ as a woman
who is a citizen of India and is resident in India, who agrees to have an
embryo generated from the sperm of a man who is not her husband and
the oocyte of another woman, implanted in her to carry the pregnancy to
viability and deliver the child to the couple/ individual that had asked for
surrogacy.

Contd…
◦ THE SURROGACY (REGULATION) BILL, 2016
◦ Section 2(zb) “surrogacy" means a practice whereby one woman bears and
gives birth to a child for an intending couple with the intention of handing over
such child to the intending couple after the birth;
◦ Section 2(ze) “surrogate mother" means a woman bearing a child who is
genetically related to the intending couple, through surrogacy from the
implantation of embryo in her womb and fulfils the conditions as provided in
sub-clause (b) of clause (iii) of section 4;

Types of Surrogacy on the Nature of Process
◦ Traditional or Partial Surrogacy
◦ Gestational Surrogacy or Total Surrogacy

Traditional or Partial Surrogacy
◦ In the traditional case, the surrogate mother will be
artificially inseminated with the sperm of the intended
father or the sperm from a donor when the sperm count is
low. Here the mother would be genetically related with the
baby because in either case the surrogate’s own egg will be
used. Due to this reason the two parties’ i.e. infertile couple
and surrogate mother enter into a contract where surrogate
mother is artificially inseminated with the sperm of male
partner of that couple.
◦

Gestational Surrogacy or Total Surrogacy
◦ In order for a pregnancy to take place, a sperm, egg, and a uterus
are required. In case of gestational surrogacy, the eggs are
extracted from the intended mother or egg donor and mixed with
sperm from the intended father or sperm donor in vitro. In case
of total surrogacy an embryo created by the process of In-Vitro
fertilitsation is implanted into the surrogate’s uterus. One thing is
worthy to mention in context of gestational surrogacy is that here
the mother is not genetically related to the child. The gestational
surrogacy comes under the ambit of assisted reproductive
technologies. Gestational surrogacy can be described as “Womb
leasing Process”. The reasons to call it so is that the surrogate
mother merely allows her womb to be used for carrying further
the reproductive process.
◦

Types of Surrogacy on the Basis of Financial
Reward
◦ It is a that form of surrogacy wherein the surrogate mother is paid not only for the
medical and other expenses to deliver the child, but in addition to that a hefty amount
is also paid to carry the child to maturity in the womb. Generally in this form of
surrogacy, the intended parents and surrogate mother are not known to each other
before entering into an agreement. Due to this reason, this form of surrogacy is purely
guided by monetary considerations. In commercial surrogacy arrangements, the
surrogate mother enters into an agreement with the commissioning parents or single
parent to bear the burden of pregnancy. In return of her agreeing to carry the term of
the pregnancy, she is paid by the commissioning parents for that. The usual fee is
around $ 25,000 to $ 30,000 in India which is around 1/3rd of that in developed
countries like the USA. Thus money plays an important role in this type of surrogacy.
Its nature is purely commercial. In India, the greed for money is responsible for the
increase in the cases of commercial surrogacy. This form of surrogacy is very complex
in nature and has generated a heated debate all over the world amongst academicians
and legal luminaries.
◦

Altruistic or Emotional Surrogacy
◦ It is that form of surrogacy in which the surrogate mother does not
receive any financial reward for the pregnancy or for the pain to be
undertaken by her or for the handing over of the child to the
commissioning parents. It is also known as non-commercial surrogacy
or emotional surrogacy. However in altruistic surrogacy, all expenses
such as reimbursement of medical and other expenses related to the
pregnancy and birth would be paid to surrogate mother by intended
parents. In nut shell it can be said that when the surrogate mother does
not receive any monetary gain in order to give birth of child for
intended parent it is known as altruistic surrogacy.
◦ Thus, Surrogacy is commercial or altruistic depending on whether the
surrogate receives financial reward for her pregnancy or for the
relinquishment of the child or not.

CONTD…
◦ THE SURROGACY (REGULATION) BILL, 2016
◦ Section2(b) “altruistic surrogacy" means the surrogacy in which no charges,
expenses, fees, remuneration or monetary incentive of whatever nature, except the
medical expenses incurred on surrogate mother and the insurance coverage for the
surrogate mother, are given to the surrogate mother or her dependents or her
representative;
◦ Section2(f) “commercial surrogacy" means commercialization of surrogacy services
or procedures or its component services or component procedures including selling or
buying of human embryo or trading in the sale or purchase of human embryo or
gametes or selling or buying or trading the services of surrogate motherhood by way
of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash
or kind, to the surrogate mother or her dependents or her representative, except the
medical expenses incurred on the surrogate mother and the insurance coverage for the
surrogate mother;

Factors responsible for Commercial Surrogacy in India
◦ Extreme poverty and social and economic backwardness in India are some of
the forces which are driving women into this ethically unacceptable business.
◦ Surrogacy arrangements are motivated by a desire for a genetically related
child and the disincentive arising out of the prolix adoption procedures
coupled with difficulty in finding suitable child for adoption.
◦ The costs of medical treatment are low in India and it is proving to be an
attractive hub for foreigners to procure benefits of medical tourism especially
surrogacy. Thus India is witnessing a hike in cases of commercial surrogacy
due to medical tourism boom fuelled by low medical costs.
◦ It has been noticed that the day to day changing life styles as well as the
higher cost of living are also forcing women to adopt surrogacy as a business
to earn money.
◦ Some of the countries have either banned commercial surrogacy or have
enacted stringent laws to deal and regulate the commercial surrogacy as a
money making profession. Opposite to this, in India the commercial surrogacy
is considered legal. In Countries like Japan, England, Australia, commercial
surrogacy is illegal .

Conflicting Interest and Rights of
Parties of Surrogacy Arrangements
◦ Interests and Rights of Surrogate Child
◦ Interests and Rights of Surrogate Mother
◦ Interests and Rights of Commissioning Parents

Interests and Rights of Surrogate
Child
◦ In P. Geetha v. The Kerala Livestock Development Board Limited(2015 SCC
Online, Ker. 71 (Decided on 06/01/2105) the Kerala High Court dealing with
an urgent issue as to whether a biological mother is entitled to the maternity
leave in a case where she has obtained the baby through surrogacy, gave a
landmark judgement in favour of the genetic/biological mother. The court held
that a mother who has obtained the baby through surrogacy is entitled to all the
benefits of an employee could have on post-delivery, i.e. the child specific
statutory benefits. In the instant case, the respondents refused to grant maternity
leave to the petitioner (An employee in the government of Kerala undertaking)
to take care of the new born on the ground that the Kerala livestock
development board ltd. Rules and regulations 1993 only provide maternity
leave envisaged under normal circumstances. It was contented on behalf of the
petitioner that “motherhood does not end with the delivery of a baby, but
continues with more vigour through the process of child rearing, which is an
equally difficult task”.

Interests and Rights of Surrogate
Mother
◦ Baby Manji Yamada v. Union of India(JT 2008(11)
SC 150) popularly known as Baby M case wherein
the surrogate mother after handing the child over
to the intended parents became deeply disturbed,
disconsolate, stricken with unbearable sadness and
had to have her child back. She could not eat, sleep
or concentrate on anything other than her need for
her newly born baby. It is not in the interest of the
mother because it affects her health

Interests and Rights of Commissioning
Parents
◦ The individual’s interest in domestic relation also includes
interest in relationship of parents and child. The infertile
couples have a right to family and child which are
important individual interests. But the question is whether
interest in becoming parents of child is permissible at the
cost of health of surrogate mothers. It is true that the right
to family and to have children, right to procreation and
right to access to modern scientific technology are some of
the rights which cannot be denied to commissioning
parents. Modern reproductive technology has brought up a
ray of hope for infertile couples

The Assisted Reproductive Technologies (Regulation) Bill2010
◦ Aim of law is to build and maintain the efficient structure of a society which sustains the
satisfaction of the maximum of desires with the minimum of friction and waste. Therefore law
is concerned with satisfaction of individual or social needs, wants, claims and interests. The
law has to recognize just interests-individual, public and social and it has to satisfy the
competing claims to satisfy the just claims, demands and expectations keeping in view the total
common good. This aim can be accomplished through the process of social engineering which
facilitates balancing of conflicting interests. The Ministry of Health and Family Welfare along
with the Indian Council of Medical Research (ICMR) drafted the Assisted Reproductive
Technologies (Regulation) Bill in the year 2008 to balance and resolve conflicting interests of
parties of commercial surrogacy. Unfortunately, the ART Bill 2008 was appearing ineffective to
address the all concerns of the parties of surrogacy and therefore recently the Parliament of
India revised it and passed a new Bill in 2010. It would not be out of place to mention here that
before drafting of the aforesaid mentioned Bills on reproductive technology, the ICMR had also
framed guidelines for ART clinics which were functioning within the country to deal with
surrogacy. However, the draft of both the Bills is somewhat similar to the ICMR guidelines of
2002. The draft of ART Bill 2010 can be said to some extent is affording protection to the rights
and interests of the parties involved in surrogacy and trying to reconcile the conflicting interests
of the surrogate mother, rights of the children and commissioning parents.

Features of the Bill
◦ Legal Enforceability of Surrogacy Contracts
◦ Guardian to Take Care of Surrogate Mother
◦ Screening of health and age of Surrogate mother
◦ Issuing of Certificate to Surrogate Mother
◦ Confidentiality of Surrogate Mother
◦ Abnormalities of a Child no Bar in Adoption
◦ Legitimacy of Child born out of Surrogacy
◦ Right of the Surrogate Child to Obtain Information

Features of the Surrogacy Bill, 2016
◦ 1. Surrogacy will not be allowed for –
◦ Homosexual couples
◦ Single parents
◦ Couples in live-in relationships
◦ Foreigners
◦ Couples with children
◦ Attempts at commercial surrogacy
◦ 2. Couple must be married for atleast 5 years.
3. Either one of couple must have proven infertility.
4. Only Indian citizens; NRIs are also not included
5. Age of couple: 23-50 for females and 26-55 for males.
6. Women can be surrogates only once and a married couple can only have one surrogate child.
7. The couple should employ an “altruistic relative”, i.e. the surrogate mother should be a relative who
is sympathetic to the situation.
8. Egg donation is banned

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