Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525

Surrogacy and Indian laws

Akshay Menon92, Jinal Sanghvi93, Lipika Sharma94, Sushmita Srivastava95

Introduction

India has arose as a surrogacy hub for couples from diversenations for past few years. There have been testifiedevents of unethical practices, misuse of surrogate mothers, desertion of children born out of surrogacy and importation of human embryos and gametes. The Law Commission of India in the 228th Report, recommended for prohibition of commercial surrogacy by enacting anappropriate legislation. It has become essential to enact a legislation to legalise surrogacy services in the country, to disallow the probable exploitation of surrogate mothers and to safeguard the rights of children born through surrogacy.96 But what is ‘Surrogacy’? The word ‘Surrogate’ has its origin in the Latin term ‘Surrogatus’ which means a woman acts as a substitute for another woman. Surrogacy is a form of third party reproductive practice or an arrangement which the intending parents (unable to procreate on their own) and the surrogate mother mutually agree that the latter shall become pregnant, gestate and give birth to a child and shall legally and physically transfer the child to the intending parents without retaining any parentage or parental obligations. Surrogacy comes as an important option to fulfil the desire to have a child of such couple for whom it is physically or medically impossible or undesirable to carry a baby to term on their own. Surrogacy practices can be divided in two types, namely –  Traditional- a surrogate mother is artificially fertilised, either by the intended father or an unidentified donor, and carts the baby to term. The child is essentially related to both the surrogate mother (who delivers the egg) and the intended father or unidentified donor; and  Gestational surrogacy occurs in the context of assisted reproductive technologies such as in-vitro fertilization and embryo transfer where the surrogate mother is not genetically related to the child. Further, there are two types of surrogacy arrangements -  Altruistic: where the surrogate mother is the one, who cares for the intended person or couple and due to her concern in the interest of the person or couple, decides to help them to become parents. Altruistic surrogacy has no space or scope for monetary compensation. In this procedure the surrogate mother obtains no monetary rewards for her pregnancy or the renunciation of the child to the genetic parents except for necessary medical expenses; and  Commercial: the surrogate mother is remunerated over and above the essential medical expenses. In many countries all types of Surrogacy (both commercial and altruistic) are illegal and there are countries where commercial Surrogacy is banned and only altruistic Surrogacy is allowed. There are only few countries in the world where commercial Surrogacy is allowed like Russian

92 LLB, University of Mumbai 93 LLB, Jitendra Chauhan College of Law 94 BA LLB, Fairfield Institute of Management & Technology 95 LLB Hons., Amity University, Noida 96 Rajya Sabha Secretariat, New Delhi, August, 2017/ Shravana, 1939 (Saka), Report No. 102

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Federation, Colombia, Ukraine and some states of USA like California, Illinois, Arkansas, Maryland, and New Hampshire. The discussion about implementing Surrogacy laws in India began with the Department of Health Research’s submission that the 228th Report (2009) of Law Commission of India strongly recommended for barring commercial Surrogacy and permittingprincipled altruistic Surrogacy facilities by enacting anappropriate legislation. Followed by the Public Interest Litigation filed by Smt. Jayashree Wad in the Hon’ble Supreme Court, which was considered by the Cabinet Secretariat in a meeting on 21.10.2015 and asked for a legislation to regulate Surrogacy. Subsequently, an Affidavit was filed in the Hon’ble Supreme Court undertaking to bring the legislation early. Multiple bills were drafted to regulate surrogacy in India in the year 2014, 2016 and 2019. The latestsurrogacy (Regulation) Bill, 2019 was presented in the Lok Sabha and passed by the house. The Rajya Sabha referred the bill to a Select Committee of the Rajya Sabha. The Union Cabinet approved the Surrogacy Regulation Bill 2020in February 2020 after including recommendations of the Select Committee. The Central Government shall notify the date of the commencement of the Act after enactment97. The mainadvantage of the Act would be that it will normalise the surrogacy services in the country. Commercial surrogacy will be disqualified including vocation of human embryos and gametes. Indian Matrimonial, Indian Origin Matrimonial and Indian Single Woman (only widow or Divorcee) will be permitted on accomplishment of certain conditions. As such, it will regulate the immoral practices in surrogacy, avert commercialisation of surrogacy and will banpossibleabuse of surrogate mothers and children born through surrogacy.98

Historical background of surrogacy The historical background of surrogacy is divided into three period- 1. Ancient period 2. Medieval period 3. Modern era

Ancient period- The ancient period is further divided into 1. Ancient period in abroad 2. Ancient period in india

Ancient period in abroad - The first mention of surrogacy biblical times: the primary mention of surrogacy are often found in “the book of genesis” within the story of sarah and abraham. Sarah and abraham were married but couldn't conceive a toddler of their own, so sarah turned to her servant hagar to be the mother of abraham’s child. This is often a case of traditional surrogacy, where the surrogate uses her own egg within the child she’s carrying for intended parents. Albeit sarah wasn't biologically associated with the baby, she and abraham both claimed the kid as their own. Up until about 30 years ago, traditional surrogacies like these were the sole way intended parents could create a toddler through surrogacy. The earliest known painting by matthias stoner

97 Cabinet approves the Assisted Reproductive Technology Regulation Bill 2020, Posted On: 19 FEB 20204:56PM by PIB Delhi 98 Report of The Select Committee on The Surrogacy (Regulation) Bill, 2019

52 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 depicts birth of Jesus with mother Mary. When we look around the world religions almost every religious script in some or the other way expresses that surrogacy had been accepted by the mankind since the beginning. In the bible according to new testamentary, it is explained that how mother mary who was a virgin gave birth to god's son jesus. Mary, the mother of jesus, was betrothed to joseph, but was found to be pregnant through the holy spirit sent by god and without sexual intercourse with joseph. To which joseph wanted to divorce her quietly, but an angel told him not to do so that he should take mary as his wife and name the child jesus in his dream.

Ancient period in India- Similarly, in ancient hindu texts there existed a practice known as niyog pratha, this practice was known for surrogate fatherhood, wherein if the women is childless due to the impotency of her husband, she was allowed to conceive through her brother in law and that child belonged to the couple and the brother in law had no claim over it. This practice was less complicated legally and emotionally as compared to the surrogate motherhood. However, the bible promotes the idea of surrogated motherhood.

In hindu mythology it is written in manu that “marriage has always remained the true foundation of every individual’s family, life and, when blessed with children, this is the god’s chosen way for continuance of making and bringing up the children in securing and trust”99.

Surrogacy is the oldest means for the problem of infertility, an instance of surrogacy practice is also found in mahabharata where it is presumed that kauravas were born through surrogacy. Justice b.s chauhan in his article state that, “in the story of mahabharata, gandhari mother of the kaurava clan during her delivery did not bore a child rather she delivered a semi-solid material which was later divided by maharishi ved vyas into hundred pieces and later planted them in different pots, which were sealed for upto two years. Thus, the hundred kauravas were born”100.

Another incident was found in indian mythology where, krishna was born as the eighth child of devaki, who was sister of king kamsa who, due to a prediction that one of devaki’s children would kill him, had imprisoned her and her husband and seized each of her children on birth. To save krishna’s life, he was discreetly exchanged for a cowherd’s daughter and krishna was brought up by the cowherd’s wife yashoda as his mother.Yashoda is recognized and revered as the surrogate mother to lord krishna, and most stories surrounding lord krishna in his infancy are about the loving bond and affection between him and his surrogate mother yashoda101.

Thus, it can be traced by the, mythology that the concept of surrogacy is not a new evolved concept. The practice of surrogacy is defined as the “the process of carrying and delivering the child for another person” in black’s law dictionary.102 it may come as a surprise to everyone today but, surrogacy did exist in ancient times as well, widely mentioned in our mythology, and was practised, socially accepted and even respected.

99Tejas K Motwani, “Surrogacy: Legal Analysis and Development” KLJ (2011) 100 B.S Chauhan, “Law, Morality& Surrogacy-With Special Reference to Assisted Reproductive Technology” Nyaya Deep 7 (2012). 101Amrita Pande, ‘Not an Angel, not a Whore: Surrogates as Dirty Workers in India’ Indian Journal of Gender Studies https://journals.sagepub.com/doi/abs/10.1177/097152150901600201 102Black’s Law Dictionary, Bryan A. Garner, 8th Edn. 2004, p. 4529

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Medieval period The medieval period is further divided into two parts- 1. Medieval period in abroad 2. Medieval period in india Medieval period in abroad – In 1950, robert edwards, a medical research in london, made variety of fundamental discoveries about how human eggs mature, how different hormones regulated their maturation and at which point in time the eggs were vulnerable to fertilization and in 1965, after several years of labour, he succeeded, find the proper conditions that activated the dormant and immature egg cells in vitro and promoted their maturation. He found that human oocytes required 24 hours of incubation before the maturation process began and this prolonged cultivation resulted in egg cells suitable for ivf. In 1969, he identified the buffer conditions to support in vitro activation of hamster oocytes. He used an equivalent buffer conditions and showed that humanspermatozoa thus activated could also promote the fertilization of in-vitro matured oocytes. Thus, thanks to his efforts the primary ivf baby ‘louis brown’ was born in 1978, the world’s first baby to change state after the utilization of in-vitro fertilization technique. In 1982, the primary baby from an egg donation was born. The mixture of those two innovative technologies resulted within the emergence of gestational surrogacy, which was first performed in 1985. In 1986, surrogacy encountered its first real legal hurdle when upon parturition to the kid, a standard surrogate decided that she wanted to stay the kid. A two-year-long legal battle between the surrogate and therefore the intended parents eventually resulted within the intended parents retaining custody. Because the practice of gestational surrogacy continued to grow, this landmark case, mentioned as ‘the baby m case’.

Surrogacy agency In late 1970’s to early 1980’s noel keane, a lawyer in america, created the very first surrogacy agency. He created agencies that were abided by the surrogacy arrangement laws. Since then, there are quite 30,000 births thanks to the surrogacy arrangement laws. Society obviously feels that surrogacy may be a viable solution to infertile women and gay men. There’ll always be those that criticise but if they might only check out it from a special angle, they only might see something different and even find yourself with a special viewpoint. Noel keane is understood because the creator of the legal idea of the surrogated motherhood. in 1976, the primary recognized mother arrangement was made around 600 children were born, within the united states of america, to surrogate mothers. In late 1980s, surrogacy has been more common, an estimated 5,000 surrogate births occurred within the united states of america. The amount of babies within the united states of america has continued to rise throughout the last 20 years, with thousands of babies born per annum.

Medieval period in india – During the medieval period, in india, there is lots of development of science and technology, which has gifted in vitro fertilization (ivf) technique for the indian childless couples. On october 3, 1978, india’s first and world’s second ivf baby, kanupriya alias durga was born in kolkata. This credit goes to dr. Subhash mukhopadhyay who brought india’s first ivf baby in the world. Durga, the india first ‘test tube baby’ was born just 67 days after the world’s first ivf baby

54 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 louise joy brown, born on july 25, 1978 in great britain.103 the indian council of medical research (icmr) has acknowledged the contribution of dr. Mukhopadhyay as a creator of india’s first tube baby and even the international scientific community has also accepted dr. Mukhopadhyay achievements by enlisting his name as a medical scientist in the prestigious ‘dictionary of medical biography’, finally, after 27 years of his death. As earlier he was charged as an accused before the expert committee called on 18th november 1978 to decide whether his innovation could fight the infertility?

The Modern Era Over many years, the science behind surrogacy has become a much more popular process than it was just a few decades earlier. The fact that over the past dozen years, certain events that have taken place which has all together given a different approach of how this nature's boon could be used and thus it has reached a bar higher than before. Like for instance back in the year 2001 the oldest surrogate mother at that time gave birth to her own grandchild, while in 2005, a 58-year old surrogate mother gave birth to her own twin granddaughters. With that being said, just like every new discovery has its own goods and bass. In the modern times people do think of this as incest, which is not an accurate assessment. Because of lack of thought and understanding these thoughts are expressed by the people and thus there must be proper awareness amongst the people about what the concept is about and the science behind it. Breaking, all odds in the following case, a gay couple elliot and cecile had opted for surrogacy and were in need of a surrogate mother, little to their surprise their own mother accepted to become the surrogate mother of their child.104 the state of nebraska in the us. In its law requires that the sperm donor should be the father and the person who delivers the baby to be the mother. Even if the mother is not biologically related to the child.

In the year 1987 in South Africa, a 48-year-old pat Anthony had given birth to three of her own biological grandchildren as triplets. Which held the international media in a firestorm, and which stirred up debates, questioning the medical ethics practiced and lack of virtues attributed in the procedures taken up in surrogate pregnancy. Internationally, a few other grandparents have done the same in the us and around the globe. In greece a 67-year-old grandmother named, anastassia ontou, gave birth to her daughter’s baby in 2016. Therefore, making her the oldest known surrogate mother in the world. These people, set a great example before the world that how surrogacy can help people with infertility problems. A boon to the mankind to which the 21st century law must compliment this science by placing an effective regulatory framework.

Issues associated with surrogacy in India Medical progressions in surrogacy and legal footings in this respect have conveyed the normal concept of parenthood under debate. Two primarycontemplations of genetics and legitimacy are the idea for legally acceptable definition of a family. But author like andrea e. Stumpf articulates that in the route of procreation different contributors should have most rights at different phases of procreation. Earlier to gestational period, the psychosomatic dimension of the intending parent is most dire. Family laws have only genetic and psychological concepts. The case of infertile wife demonstrates the mental concept more manifestly. She will have no genetic connection with the

103Gehna Vaishnavi, Navneet Tatkkar ‘ Surrogacy Medicolegal Issues,’ Jaypee Medical Health Publisher, New Delhi, 2015, 1st Edn., at p.9 104 Shannon Keating on Surrogacy and LGBT, BuzzFeed Report, Mar, 28, 2019

55 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 child but her inventiveness with her husband makes the surrogacy practice successful. For a wedded couple, the procreative process is only private. But in surrogacy engagements third parties are involved like surrogate mother, medical practitioner and lawyer.105

A few of many issues raised by surrogacy include – 1. Legal issues 2. Ethical issues 3. Health issues 4. Religious issues

Legal issues – As far as the Indian legal system is concerned there is no concept of testing DNA for establishing paternity i.e., the name on the child's birth certificate must include the name of birth mother and her husband. The hon’ble supreme court of india in the manji’s case said that commercial surrogacy is allowed in india. The surrogacy bill seeks to regulate india’s heavily market-driven fertility industry, policies ranging from clinic regulation to restrictions on art (assisted reproductive technology) access. One of the most severe charges against surrogate motherhood contracts is that they abuse women. It is difficult to judge with any confidence whether surrogacy contracts are abusive and whether abuse is a valid reason for barring these arrangements. At a glance, surrogacy seems like an eye-catchingsubstitute as a meagre surrogate mother gets very much needed money, an infertile couple gets their fairy-tale biologically related baby and the country grosses foreign currency, but the real picture reveals the nastyreality. Due to dearthof proper legislation, both surrogate mothers and intended parents are somehow abused and the profit is received by middlemen and moneymakingcommercial agencies. There is no clearness in the entire system, and the chance of getting involved in legal complications is there due to random regulations governing surrogacy in india. Arguments that the law should guard women against being lured into surrogacy by generous offers of money rest largely upon a conviction that having a baby is such a private and practicallysacrosanct thing that it should be kept outside the marketplace. Anarrangement of agencies realising profits by arranging for surrogate mothers and of surrogate mothers earning substantial fees by having babies commercialises or childbearing to the detriment of us all. Laws in contradiction of child selling similarly interweave the goals of guarding the poor and protecting a society in which children are not articles of trade. They mirror a finding that we do not want a civilisation in which people in extreme monetarytrouble are drawn to sell a child or children, if they are fortunate enough tohave on or attractive enough to produce a substantial offer from a well- to-do person. Even if all parties are satisfied with this contract, socialwelfares counsel against it. It may or may not be in the interest of the specific child to avert the give-and-take. It is in the interest of off springs and families in common for the state to nurture a sense of safety about them and to eliminateenticement by not permittingtrades of family members for money.106

Right to life - The concept of surrogacy violates the article 21 of the Indian constitution. Surrogates, the women of poor and illiterate rural background who are indulged in surrogacy for earning money and are also forced to do so by their spouse or middlemen. These woman does not

105Dr. Nandita Adhikari, “Surrogate Motherhood” Law and Medicine 167 (2012). 106Martha A. Field, Surrogate Motherhood: The Legal and Human Issues 27 (1990).

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have any right to make decisions on their own regarding the use of their body and life. These woman after being recruited by the commercial agencies, they are shifted to the hostels during the whole pregnancy and are only allowed to go out for antenatal visits and are only allowed to meet their families on sundays, thus their whole tenure of pregnancy and this somehow violated the right to life of such surrogates. There is no connection between the surrogate mother and her child even when she is conveying her womb for rent or lease, working as a contractual worker who will just give the final results as per the agreement and that too mostly without her consent.

Equality – The altruistic surrogacy restricts to only married Indian couples and disqualifies others on the ground of nationality, marital status, etc. And thus dishonoured article 14 of the constitution of India. However, homosexual or living in a live-in- relation is not illegal as per say in the country but altruistic surrogacy is non-accessible to the minorities and created discrimination against these minorities.

Citizenship- The issues arises that whether the child delivered by an Indian belonging to a foreign parent is eligible for Indian citizenship? Or dual citizenship is available to them or not. Exploitation - the surrogate mother is exploited by various means which include sexual abuse, illegal sale of ovum, sex trade, non -payment of compensation and many more. As the poor woman are forced to be a surrogate mother for ease money by their spouse surrogacy appears like an alluring option as a poor surrogate mother gets especially required cash, however the genuine picture uncovers the severe truth. Because of absence of legitimate enactment, both surrogate moms and here and there proposed guardians likewise are some way or another misused and the benefit is earned by go between and business organizations. Moreover, rich professional women who do not want to take the worry of carrying their own pregnancy are opting to contracting surrogate mother.

Freedom of trade and expression- the surrogacy business is the source of bread and butter not only to the surrogate mother and their relatives but also to the abundanttreatment centresfunctioning for them in the nation, thus forbidding the commercial surrogacy will also infringe the freedom of trade and expression as stated in article 19(1) (g) of the indian constitution and it is against the interest of multiple stakeholders.

Ethical issues (a) Physical harm- most Indian women go about as surrogate mothers by means of poverty or other financial requisite. This advances the vital issue of responsibility for the malice caused or suffered by a surrogate mother. Also, there is no medicalcarelessness with respect to the specialists and other medical staff, it is hard to settle the risk and along these lines repay the misfortune endured by the surrogate mother. There is constantly a peril of physical harm. (b) Women dignity: ideal to respect is one of the inalienable and loved privileges of each individual. It is opposed that surrogacy degrades the inherent respect of a lady. Surrogacy includes the utilisation of a lady's physique for producing an infant which is given over to the intendingparents. Amid the term of pregnancy, the surrogate mother needs to maintain the conditions set down in the agreement and has no privilege to take any choice influencing her body. In addition, the surrogate mother additionally thinks about pregnancy as a method for procuring cash and tries to abstain from building up a unique bond with the youngster in her womb. In this way the normal

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mother-kid bond is either missing or stifled and the whole procedure is seen as a business exchange. (c) Children’s interest: surrogacy by and large includes instalment of cash to the surrogate mother for conveying and giving over the child to the dispatching guardians. Hence, it is censured as proportionate to purchasing and offering a child. It is contended that it would determination of sex and attributes in a baby. Along these lines, surrogacy would bring about regarding a youngster as an item which is considered as ethically wrong and unscrupulous. It is alsoobserved that the process of surrogacy including in-vitro preparation as a rule carries about birth of triplets or quadruplets. This may hurt the enthusiasm of the kid, as the charging guardians may not be in a situation to take care of such number of children conceived against their desire. Further, it is contended that surrogate children might be conceived with absconds. Another hostile issue in the process is the assurance of parentage and care of youngster. Surrogacy includes investment of three or four or five grown-ups. (d) Surrogacy linked with prostitution: surrogacy is called to resemble prostitution, as it comprises offering of the conceptive limit of a lady and the utilisation of her body as an end-result of payment of cash. Promote it is contended that like a whore who must choose between limited options and control before a clientwho has solicited her support and paid cash; the surrogate mother likewise must choose between limited options and needs to maintain every one of the terms and conditions set forward by the appointing guardian, in the two cases one's physical administrations is being offered, in the two cases material pay is offered for the physical administrations gave.

Health issues Surrogacy involves some of the risk some of them are risks with ivf, fertility medications, pregnancy and childbirth. Thiscomprises all types of side effects, difficulties and gravemenaces that surrogate mothers face. Common side effects during pregnancy like exhaustion, altered appetite and senses of taste and smell, nausea and vomiting indigestion, constipation, weight gain, dizziness and light-headedness, bloating, swelling, fluid retention. The surrogates are implanted with multiple embryos to increase the chances of pregnancy, which increases health risk for babies and the mother as well.

Religious issues Bible has also been construed as affirming that children are a gift, not a right107. God selects whether people have babies or not; if a couple is infertile, it may be god’s determination. When individuals or couples are incapable to naturally endure children, they have numerous other substitutes in starting a family. Certainly, while adoption is one option, there are many who desire to see a child through conception, gestation, birth, and nurturing. There is also the issue of having a true genetic connection with that child for some. Paragraph 2376 of the catechism of the catholic church states that practises that demand the separation of husband and wife, by the interference of a person other than the couple (donation of semen or ovum, uterus), are solemnly immoral.108 islam/muslim religion believe that all kinds of the surrogacy arrangements are haram in the muslim tradition and the rules and regulation of the surrogacy arrangements involved in the surrogacy arrangements.

1072. Modern Family surrogacy Centre, Christian Surrogacy. (2016) http://www.modernfamilysurrogacy.com/page/christian_surrogacy 108Catholic Church, Catechism of the Catholic Church, Rev. Ed., Geoffrey Chapman, London, 1999, Paragraph 2376.

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Commercial surrogacy and indian society The condition of commercial surrogacy in india is that of ‘legality without legislation’ albeit it is the question that how far such legalisation has been accepted by indian culture or not. In india, surrogate mothers face high intensities of publichumiliation (which may be owing to numerousbackingreasons) and banishment. As a practice surrogacy encompasses the bodies of marginalised women, which in india’s socially conventional culture, is cause sufficient for mockery. The surrogate mothers are treated as throwawaysubstances; and the surrogacy tradehighpoints the “atypical” aspects of gestation and reproduction. Several indians comrade surrogacy with compensated sex-work and this association to prostitution further stigmatises the surrogate mother. Thus, commercial surrogacy remains to be greatly stigmatised in india. Many surrogates are spending the period of their pregnancy in surrogate shelters (e.g. In anand, a township in the western state of gujarat), away from their families and peoples. They may want to retain what they do undisclosed, because reproduction is observed as conventional only within marriage; taken outside the nativeprovince of family, reproduction for financialaccomplishment may be seen as ‘dirty work’, ‘baby-selling’ or ‘womb-renting.’ that is why some argue that altruistic surrogacy is more acceptable than commercial surrogacy.109 India is emerging among the favourites on the list of countries to be searched by intending parents requiring surrogate mothers as in developed countries the services of a surrogate mother are extremely costly. Surrogacy arrangements pose many legalquestions. Some comprise only one specificstage of the sequence; others question the sequence as a whole. For instance, the legality of artificial insemination, a prerequisite to any surrogate mother arrangement, must be established before the legal problem of surrogate motherhood can be addressed. Questions of contract law may arise as to the enforceability of a surrogate mother contract or as to remedies for its breach. Broad questions of constitutional law, such as whether surrogate mother arrangements are protected by the right of privacy, due process, or equal protection, also need to be addressed in assessing the procedure as a whole.110

Legality of surrogacy contracts In any surrogacy, excluding altruistic, a contract has to be prepared between the intending parents and the surrogate mother. This is essential to safeguard the interests of both the parties. When the surrogate mother is rewarded, it becomes apparent that she has to transfer the child to the intending parents subsequent to the birth of the child. Provision also disallowsthe intending couples from changing their mind at animpulseand root problem for the surrogate mother. The contract createscertainty that the intending parents are not left in stagger in case where the surrogate mother ends the pregnancy and walks away with the cash. But the enforceability of this nature of contract needs elaborations. Enforcing surrogacy contracts like some other like contracts for normal commercial facilities or for the interchange of a chattel would benefit the biological father and his wife the most. But it can be debated that contract law should not apply or should apply contrarily when a operation involves conceiving, delivering and surrendering a baby than when it involves barter of

109 Sugato Mukherjee, “Legal and Ethical Issues of Commercial Surrogacy: An Overview” Available at: http://www.academia.edu/1955503 (visited on June 25, 2013). 110Avi Katz., “Surrogate Motherhood and the Baby Selling Laws” Columbia Journal of Law and Social Problems 20 (1986).

59 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 profitmaking services or a chattel or a portion of land. In determining what effect to agree to the surrogacy contract, a judge may refer to the contract law, the constitutional law and also the criminal law with laws relating toadoption. Contract law is a methodical body of law with several rules and disputants in surrogacy cases can frame countlessopinions that contract lawcoerces the elucidation they happen to favour. Under customary contract law, surrogacy engagements would seem to be enforceable. But contract law makes exclusions for abuse or immorality and it is anacquainted principle of contract law that public policy occasionallycommands that the parties’ bargain not be followed or that it not be mandatory. Constitutional arguments can be articulated both to support the position that surrogacy contracts must be required and to support the position that they cannot be. Moreover, existing laws prohibiting baby selling could be interpreted to encompass surrogacy arrangements and even to make the criminal; or they could be held not to apply at all.

Enforceability of surrogacy agreement under contract law Once it is established that surrogacy contract is valid, the next question arises about the enforcement of surrogacy contract. If the agreement is to be declared as enforceable, it has further to fulfill the requirements prescribed by law. Thus it has to undergo the test of section 23111 of the Indian contract act, 1872.

 Consideration or object is unlawful A contract is consensual act and parties are free to settle any terms as they please.112 it is often believed in case of surrogacy contract that it is based on unequal bargaining power between the parties. It is presumed that the surrogate mother’s freedom to contract does not necessarily guarantee her the freedom to negotiate the contract terms according to her best interests.113 it is only biological father who set all the terms in case of surrogacy contract. These contract terms empower the contract father to legally control the conduct of the woman impregnated by him. By imposing surrogacy contracts, there is legitimization of the procedure whereby an affluent individual i.e. The biological father may in result acquire a woman for a time period and counsel how that woman should conduct herself and her life. Such a practice is inconsistent with individual autonomy principles.114 however, the underprivileged should not be denied their freedom to contract for a highly-paid service because their economic situation makes it more likely that they h are tempted by financial incentives to do so. Moreover, while it is exceptionally rare that a woman would offer to act as a surrogate for stranger without any expectation of an economic reward, it does not certainly follow that no woman would be agreeable to execute these services unless distressed, without substitutes. The fact that cash is swapped for a child, or at least for the pregnancy, is one of the greatest notorious aspects of procreative surrogacy. Nonetheless, in order for a surrogacy agreement to be enforceable, valuable consideration must be exchanged. Implicit

111The consideration or object of an agreement is lawful, unless- it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the court regards it as immoral, or opposed to public policy. In each of these cases, consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. 112State of Madras vs. Ramlingam and Co., AIR 1956 Mad 695 113M. Weber, “Law in Economy and Society” A. Kronman and Posner (eds.), the Economics of Contract Law 231 (1979). 114 M. Celeste Vossmeyer, “What Money Cannot Buy: Commercial Surrogacy and the Doctrine of Illegal Contracts” Saint Louis University Law Journal 1201 (1988).

60 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 agreement of good faith and fair dealing in every contract necessitates each party to allow the other party to perform and it justifies payment of the surrogate’s equitable medical expenses because it supports her to undergo the medical treatment essential to uphold her end of the contract, carrying a baby, which she might otherwise be incompetent to afford. Utilising these arguments, it should be recognised that compensation is a common component of conception and should not be made illegal in the surrogacy situation.115

 Forbidden bylaw Presently there is no law for regulating surrogacy in india. As it is not openlyacknowledged as unenforceable by law, it is reasoned to be enforceable and completely valid. There are national guidelines for assisted reproductive technologies which provides reference to surrogacy arrangements; however they are not legally enforceable.116 the law commission of india117 has also recommended the enforceability of surrogacy agreements. Assisted reproductive technologies bill introduced in 2008, then in 2010 and 2013 correspondingly, recognises the validity of surrogacy and the enforceability of surrogacy contracts.118 thus from the above provisions, it is clear that there is no law in india forbidding surrogacy contracts even it involves payments to the surrogate.

 Defeat the provisions of law Next question to be considered is that it is not directly prohibited by law, it can be declared as invalid on the ground that it defeats the provisions of other law applicable inthe country. Likewise it has to be seen whether it is in conflict with the provisions of the hindu adoptions and maintenance act, 1956. Section 17 of the hindu adoptions and maintenance act, 1956 prohibits certain payments involved in the process of adoption. The consideration involved in a surrogate agreement is a fee paid to the surrogate mother and the legal and medical expenses. Section 5 of the act provides that any adoption made in contravention of the provisions of the act shall be void. Therefore, if a consideration is involved in adoption, it shall be void. From this it can concluded that the surrogacy contract itself is void in india.119 however the situation is not so, adoption is the method by which the state attempts to provide a suitable home for children whose biological parents are unable or unwilling to care for them. A surrogate parenting contract is not in itself an adoption contract. It is acontract pursuant to which the genetic mother agrees for a fee to let go her parental rights upon the birth of the child and to surrender the child to the biological father.120 thus adoption process cannot be compared with surrogacy contracts.

 Involves injury to person or society It is tough to pinpoint a societal interest that is in fact injured by surrogacy engagements. The

115Dominique Lodomato, “Protecting Traditional Surrogacy Contracting through the Payment Regulation” Hastings Women’s Law Journal 252 (1990). 116After several years of discussion and debate, primarily among the Indian Council for Medical Research (ICMR), the National Academy of Medical Sciences, and Practitioners of ART, the Ministry of Health and Family Welfare published the non-binding National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in 2005. 117Law Commission of India, “Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of the Parties to a Surrogacy” 228th Report (August, 2009). 118Section 34 of the Assisted Reproductive Technologies (Regulation) Bill, 2010 119R. Latha, “The Hindu Adoptions and Maintenance Act, 1956 and Surrogacy” Student Advocate 63 (1991). 120Barbara L. Atwell, “Surrogacy and Adoption: A Case of Incompatibility” Columbia Human Rights Law Review 4 (1988).

61 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 pregnancy is not unintentional. Certainly, the parents conceive the child with deliberation, care and commitment than appearsin the conception of most children. The mother is not forsaking the child. She is justassenting that the child’s father, who can be vetted for fitness, will have charge.121 it also does not lead to any injury to the surrogate as surrogates and intending parents enter these contracts because they are mutually beneficial. The surrogate believes that she will derive a benefit from the payment that is greater than the cost to her of being pregnant and giving birth and then surrendering the baby. So all the parties to the contract are made better off and none suffer injury.122 Little evidence exists to demonstrate that commercial surrogacy agreements actually exploit women. To the contrary, research studies conducted on surrogate birth mothers demonstrate that these women do not feel exploited instead, they typically report positive feelings about their experiences.123 thus surrogacy would not exploit women, but would actually provide them with a unique employment opportunity and a chance to earn money to supplement their regular incomes.124

 Immoral Surrogacy agreement is often compared with prostitution and treachery. However surrogacy agreements are less like prostitution and more like supplementary service contracts that people enter into for onlymonetary reasons.125 in surrogacy one person provides one or two other individuals a lifetime of happiness, not just somerare moments of corporeal enjoyment. This is anadvantagemutually to the society and to the individuals. In surrogacy one femalegifts the child to one or two individuals who then would not be able to have one. The surrogate mother herself gains money; she may also gain intrinsic benefit knowing that she has helped someone.126 hence it cannot be compared with prostitution. Additionally sexual association is not the base of surrogacy contract, thus no question of treachery arises in this situation.

 Against public policy It is argued that women sell their body for the end product that is child, thus surrogacy leads to commodification of women as well as child. Nonetheless, femalesaiding as surrogates and renting their womb solitary for giving birth to a child, not their own will trade theirreproductive ability.127 facilitation and encouragement of good prenatal care is also consistent with public policy.128allowing payment of a surrogate’s equitable medical expenditures advances the best

121 June R. Carbone, “The Role of Contract Principles in Determining the Validity of Surrogacy Contracts” Santa Clara Law Review 594 (1988). 122 Richard A. Posner, “The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood” Journal of Contemporary Health and Policy 23 (1989). 123Abigail Lauren Perdue, “For Love or Money: An Analysis of the Contractual Regulation of Reproductive Surrogacy” The Journal of Contemporary Health, Law and Policy 286 (2011). 124Jennifer L. Watson, “Growing a Baby for Sale or Merely Renting a Womb: Should Surrogate Mother be compensated for their Services?” Whittier Journal of Child and Family Advocacy 545 (2007). 125 Lisa Sowle Cahill, “The Ethics of Surrogate Motherhood: Biology, Freedom and Moral Obligation” Law, Medicine and Health Care 67 (1988). 126Jean M. Sera, “Surrogacy and Prostitution: A Comparative Analysis” American University Journal of Gender and the Law 321 (1995). 127Denise E. Lascarides, “A Plea for the Enforceability of Gestational Surrogacy Contracts” Hofstra Law Review 1221 (1997). 128 Diana Greco Attener and Patricia Fried, “Surrogate Motherhood at a Legal Crossroad: An Analysis of Proposed Legislation in New York” St. John’s Journal of Legal Commentary 103 (1987).

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interests of the child, the intended parents and society by warranting good prenatal care and perhaps discouraging the intendedparents from demanding that the surrogate undergo needless but luxurious or agonising medical examinations and procedures.129

Laws relating to surrogacy 1. “the right of reproductive autonomy” that can be concluded to be anaspect of the right of privacy assured under article 21 of the constitution: The constitutional standardplaced in article 21, integrates within itself various facets, inaccessibility of which shall render to be abarrier in the full-fledged advancement of social creatures like us. One such aspect, found in the compilation of rights under article 21 is the “right to privacy”, rising out of the comprehensiveelucidation provided by the courts with regards to article 21. The “right of privacy” as a constitutionally saved right is not to be found in the precise language of the constitution of india130. Nevertheless, the said right is recognised as a facet of article 21 of the constitution of india as construed by the courts in kharak singh v. State of uttar pradesh131, and in gobind v. Slate of madhya pradesh132. The right to privacy recognises that all people have the right to protect the privacy of his or her own, family, wedding, reproduction, motherhood, child bearing and education amidseveral other matters133. The right to privacy is a blend of numerous rights, one such vital right of this blend is the “right to reproductive autonomy”. This right was merged in the indian jurisprudence subsequent to the case of b.k. parthasarathi v. Government of a.p. & ors134, where it was specified that ‘the right of reproductive autonomy’ means the privatechoices of the individual about the birth and babies, and that, it is a facet of a ‘right of privacy.’ The choice to give birth is a decision to be made by the future mothers and state interference will only violate this right of those womenfolk, until there’s anenthralling interest of the society, providing the essential grounds for such interference. The interference of the state into such a decision-making procedure of the individual is examined by the constitutional courts both in this country and in america with abundant care.

2. The surrogacy regulation bill 2020: The objects and reasons of the surrogacy (regulation) bill, 2019 necessitates the intentions/ salient features of the bill that inter alia comprises135:- (i) the bill intends to allow altruistic ethical surrogacy to the deprived married indian couples including non-resident indians (nris) and single woman (divorcee or widow). (ii) determinations and circumstances of ethical surrogacy as defined in the bill provisions:-  When each or both members of the couple are suffering from established infertility.  When it is simply for altruistic surrogacy purposes.

129M. Trebilcock, the Limits of Freedom of Contract 4 (1993). 130B.K. Parthasarathi v. Government Of A.P. & Ors, AIR 2000 AP 156 1311963 AIR 1295 1321975 CriLJ 1111 ¶24 133Ibid 134AIR 2000 AP 156 135 Report of The Select Committee on The Surrogacy (Regulation) Bill, 2019, Presented to the Rajya Sabha on 5th February, 2020, https://www.prsindia.org/sites/default/files/bill_files/Select%20Comm%20Report- %20Surrogacy%20Bill.pdf

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 When it is not for commercial commitments or for commercialisation of surrogacy or surrogacy processes.  When it is not for generating children for sale, prostitution or any further form of exploitation.

(iii) the bill bans commercial surrogacy or commercialisation of surrogacy services including trading of human gametes, oocytes and human seed. (iv)commercial surrogacy is commercialisation of surrogacy services or processes,trading of human embryo for the purpose of surrogacy, trading of human embryo by way of giving compensation, payment, advantage, fees, subsidies or monetary incentive in cash or kind, to the surrogate mother or her dependents (v) a slenderer structure of a national surrogacy board, state surrogacy boards and fitting authorities at state/ut level is proposed. A. National surrogacy board National surrogacy board to implement the authorities and accomplish the functions convened on the board under this bill. The board shall comprise of the minister in-charge of the ministry of health and family welfare, the chairperson, the secretary to the government of india in- charge of the department dealing with the surrogacy matter, vice-chairperson three women members of parliament, among whom two shall be voted by the house of the people and one by the council of states, members B. State surrogacy board A parallel state surrogacy board is to be instituted in the states and union territories C. Appropriate authority The appropriate authority in states/uts would be the executive committee with 4 members and the joint director of health as the chairperson. The functions of the appropriate authority can be laid down as follows:  To award, interrupt or terminate registration of a surrogacy clinic;  To impose the criteria to be satisfied by the surrogacy clinics;  To investigate complaints of breach of the provisions of this act, rules and regulations and take legal action as per provision of this act;  To take appropriate legal action against the use of surrogacy by any person at any place other than prescribed, suo-moto or brought to its notice, and also to initiate independent investigations in such matter;

(vi)the needy infertile intending couple  The age of the intending couple is between 23 to 50 years in case of female member and between 26 to 55 years in case of male member on the day of certification;  The intending couple are wedded for at least five years and are indian citizens;  The intending couple have not had any alive child naturally or through adoption or through surrogacy earlier except when they have a child and who is mentally or physically disabled or specially abled or suffer from life frightening illness or lethal disease.

(vii) to prevent exploitation of surrogate mother, minimum criteria pertaining to age and medical conditions to be fulfilled by the surrogate mother has been specified in the act.  The surrogate mother must be wedded with one child  The age of the surrogate mother to be from 25 to 35 years.

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 The surrogate mother must be a close relative (to be defined by the national board).

(viii) the bill also comprises provisions to safeguard that the intending couples do not abandon the child. An order regarding the parents and custody of the child to be born through surrogacy to be issued by a court of magistrate of first class is made as a pre-requisite condition. This will also be an agreement.

(ix) an insurance cover for 16 - 36 months is recommended for the surrogate mother to take care of all her medicinal requirements emergency circumstances/complications.

(x) registration of surrogacy clinics: surrogacy clinics cannot accept surrogacy related processes unless they are listed by the appropriate authority. Clinics must apply for registration in a period of 60 days from the date of nomination of the appropriate authority. (xi) parentage and abortion of surrogate child: a child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple. An abortion of the surrogate child necessitates the written permission of the surrogate mother and the approval of the appropriate authority. This approval must be acquiescent with the medical termination of pregnancy act, 1971. Supplementary, the surrogate mother will have achoice to withdraw from surrogacy former to the embryo being implanted in her womb.

(xii) offences and penalties: the offences under the bill comprise of: (i) undertaking or publicising commercial surrogacy; (ii) abusing the surrogate mother; (iii) forsaking, abusing or renunciation a surrogate child; and (iv) retailing or importing human embryo or gametes for surrogacy. The punishment for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. The bill identifies a range of offences and penalties for other breaches of the provisions of the bill.

3. The law commission 228th report in 2009136 Surrogacy involves battle of various interests and has enigmaticimpact on the principal unit of society viz. Family. Laissez-faire oflaw in this knotty issue will not be proper at a time when law is to act aspassionateprotector of human liberty and atool of distribution of positive prerogatives. At the similar time, prohibition on equivocalethical grounds minus a proper valuation of social ends and purposes which surrogacy can aid would be unreasonable. Dynamic legislative intervention is required to enableprecise uses of the new technology i.e. Art and abandon the cossetted approach to legalisation of surrogacy adopted hitherto. The need of the hour is to adopt a realistic approach by legalising altruistic surrogacy arrangements and prohibit commercial ones. The draft bill prepared by the icmr is full of gaps, nay, it is piecemeal. However, it is aninspiration to move forward in the direction of preparing legislation to regulate not only art clinics but rights and commitments of all the parties to a surrogacy including rights of the surrogate child. Most significant points in regard to the rights and commitments of the parties to a surrogacy and rights of the surrogate child the suggested legislation should include may be stated as under: [1] surrogacy arrangement will endure to be administered by contract amongst parties [2] a surrogacy arrangement should provide for monetary support for surrogate child in the event of decease of the commissioning couple

136 Need For Legislation To Regulate Assisted Reproductive Technology Clinics As Well As Rights And Obligations Of Parties To A Surrogacy – Law Commission of India – Report No. 228

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[3] a surrogacy contract should fundamentally take care of life insurance cover for surrogate mother. [4] one of the intended parents should be a patron as well, because the tie of love and affection with a child primarily originates from genetic relationship. [5] legislation itself should identify a surrogate child to be the legitimate child of the commissioning parents [6] the birth certificate of the surrogate child should have the names of the commissioning parents [7] right to privacy of donor as well as surrogate mother should be sheltered. [8] sex-selective surrogacy should be banned. [9] cases of abortions should be administered by the medical termination of pregnancy act 1971.

4. Background note received from the department of health research Surrogacy is an organisation where a female (the surrogate) deals to carry a baby over pregnancy on behalf of a couple and then give away the baby to the intended parent(s) once it is born. In surrogacy, an embryo is formed using an egg and sperm created by the intended couple and is moved into the surrogate’s uterus. The surrogate has no chromosomal link to the child. Her eggs cannot be utilised to conceive the child.

5. Law relating to cross border surrogacy: Ministry of home affairs had issued guidelines on 9th july, 2012 stipulating that the foreign nationals visiting india to commission surrogacy should come on a medical visa. The guidelines also stipulate the following conditions for grant of medical visa:- (i) the overseas man and woman are duly wedded and the wedding should have continued at least for two years. (ii) a letter from the embassy of the overseas country in india or the foreign minister of the country is to be hemmed in with the visa application plainly stating that the country recognises surrogacy and that the child/ children to be born to the contracting couple through the indian surrogate mother will be allowed entry to their country as a biological chid/children of the couple contracting surrogacy. (iii) the couple will arrange for an undertaking that they will take due care of the child/ children born from surrogacy. (iv) the treatment should be done only at one of the registered art (assisted reproductive technology) clinics recognised by icmr. (v) the couple should give a duly notarised contract between the applicant couple and the potential indian surrogate mother. Nevertheless, for drawing up and implementing the agreement between the applicant couple and the potential surrogate mother, the foreign couple can be allowed to visit india on inspection trip on tourist visa, but no samples would be given to any clinic during such initial visit. The guidelines also specify that before surrendering the child/ children, the foreigners regional registration officer (frro)/ foreigners registration officer (fro) will guarantee that the foreign couple is carrying a permit from the art clinic concerned concerning the detail that the child/ children have been duly taken charge of by the foreigner and that the obligations towards the indian surrogate mother have been completelyhonoured as per the agreement.

6. Constraints on surrogacy were also deliveredby the ministry of commerce, notification no. 25/2015-2020 dated 26th october, 2015

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As a consequence of caution by the supreme court to the government, the swiftact on the part of the government stemmed in the amendment of the notification of 2013 concerning import of human embryos in which the import of human embryos is bannedexcluding for research purposes based on the guidelines of department of health research.

7. Article 16 (1) of the united nations universal declaration of human rights (udhr) – right to parenthood Article 16(1) of udhr states that the men and women who have attained majority, without any restriction due to caste, nationality, race or faith, have the right to marry and begin a family. They are permittedidentical rights as to nuptial, during nuptial and at its termination.

8. Article 23(2) - international covenant on civil and political rights, 1966 - right to “found a family” Family is the natural and essential group unit of civilisation and is eligible to safety by society and the state this gives rise to the right of men and women of eligible age to join in matrimony and to start a family.

9. Article 23(1)(b) - international convention on the protection and promotion of the rights and dignity of persons with disabilities, 2006 - right to reproductive health and education The rights specially-able persons to chooseliberally and conscientiously on the quantity and positioning of their children and to have admission to age suitable information, procreative and family planning schooling are recognised, and the means essential to empower them to exercise these rights should be given

10. Assisted reproductive technology bill, 2020 . Safe art o The bill provides for compassionate and ethical practice of assisted reproductive technology services in the country. o The bill will promiseprivacy of intending couples and safeguard the rights of the child born through art. . Pre-genetic implantation testing mandatory: the test authorises doctors to check embryos for any likelyirregular chromosomes before they are moved to the uterus. This is to escape any genetic diseases in the populace born through these expertise. . A national board which will lay down a code of conduct to be observed by those functioning art clinics. o The board will also frame minimum standards for laboratory and diagnostic apparatus and practices to be followed by human resources engaged by clinics and banks. o Art bank is an organisation set up to source sperm/semen, oocytes/oocyte donor and surrogate mothers to assisted reproductive technology clinics or the patients. . Regulatory boards at state level o The states and union territories will have to arrange state boards and state authorities in three months of the notification of the planned legislation. o The state board shall have the duty to follow the strategies and procedures laid by the national board for clinics and banks in the state. . A national administrative office and registration authority, which will keep a database to support the national board to perform its functions. . Punishment

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o The bill recommends for a stern punishment for those involved sex selection, trade of human embryos or gametes, running agencies/rackets/organisations for such unlawful practices. o The bill has a provision that those involved in trading and sale of embryos will be fined rs 10 lakh at first occurrence and in second occurrence the person could be imprisoned for a maximum of 12 years.

Comparison of bill, 2016 and bill, 2019 Basis 2016 2019

Territorial It extends to whole of It extends to whole of india except jammu and jurisdiction india except jammu kashmir. and kashmir. 2020 amendment- it extends to whole of india including jammu and kashmir.

Definition of sex- Not given Introduced in the bill under section 2(z) of the said selection bill.

Restricts clinics, No such provision. It is added under section 3 (viii). intending couple to conduct sex- selection

Option given to No such provision. It is added under explanation clause section 8. surrogate to withdraw her consent before the implantation.

Prohibit No such provision. It is added under section 35(1)(g). conducting of sex- selection

Time period for Silent related to it Insurance need to be provided for a period of 16 which insurance months. need to be provided 2020 amendment- the period has been changed from 16 to 36 months.

Who can be a Only close relative of Only close relative of the intending couple. surrogate? the intending couple 2020 amendment- close relative has been replaced with ‘willing women’.

Inclusion of Surrogacy is only for Surrogacy is only for married couples. divorcees and married couples widows 2020 amendment- in addition to married couples, now it includes divorcees and widows.

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Comparison of International laws on surrogacy

Australia Commercial surrogacy is a criminal offence in all states and the australian capital territory, though altruistic surrogacy is legal under the surrogacy act, 2010. The surrogate mother is deemed by law to be the legal mother of the child and any surrogacy agreement that confers custody to another is void and unenforceable in the courts. Reasons for banning commercial surrogacy? Realizing the exploitation risks to the child and surrogate mother as evidenced in some international commercial surrogacy agreements and the grave risks of breach and violation of human rights, the government has decided to ban commercial surrogacy.137

Canada Commercial surrogacy is banned pursuant to the assisted human reproduction act, 2004. Altruistic surrogacy is legal. Reasons for banning commercial surrogacy? The prohibitions comply with the guiding principles set out in the ahr act. Exploitation of infants and women reproductive capacities for commercial gain is strictly forbidden for health and ethical purposes.138

France Every surrogacy arrangement in france that is commercial or altruistic has been illegal or unlawful since 1994, and is not allowed under the civil code. Reasons for ban? In such transactions, children may be psychologically at risk, children may become commodities traded as merchandise between surrogate mothers and infertile couples, physical and emotional risks of pregnancy and threatens human dignity as enshrined in their legislations.139

Greece In Greece, surrogacy is legal for all opposite sex couples (married or unmarried) and single females who cannot naturally bear a child to term. Under the greek civil code and regulation of medically assisted reproduction only altruistic surrogacy agreements are allowed.

United States Surrogacy and associated legal concerns come under the jurisdiction of the state, and the legal situation for surrogacy differs widely from state to state. Few states have written laws, and others have established common law systems to cope with issues of surrogacy. Some states allow contracts for surrogacy, some simply refuse to enforce such contracts and some penalize commercial surrogacy.

137Australian Government response to the Standing Committee on Social Policy and Legal Affairs, Australian Government (2018), https://www.ag.gov.au/sites/default/files/2020-03/Australian-government-response-to-the- surrogacy-matters-report.pdf. 138 Prohibitions relating to surrogacy, Government of Canada, https://www.canada.ca/en/health- canada/services/drugs-health-products/biologics-radiopharmaceuticals-genetic-therapies/legislation- guidelines/assisted-human-reproduction/prohibitions-related-surrogacy.html. 139 Claire Legras, Why has France banned surrogate motherhood? Oxford University Press (Feb 23, 2015).

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New York The child-parent security act recently passed in April 2020, allows surrogacy in an enforceable method for intended parents and surrogates in the state. Gestational surrogacy offers same-sex partners and heterosexual couples including individuals dealing through infertility, with the ability to conceive a child through the aid of scientific advancements of assisted reproduction. A detailed comparison of surrogacy laws in different countries show the following140: India United Country Surrogacy Netherlands South africa Greece Russia kingdom bill, 2019 Type of Commercial surrogacy Altruistic Altruistic Altruistic Altruistic Altruistic surrogacy allowed allowed. Expenses Medical connected to Equitable expenses pregnancy Medical expenses including and Payment to expenses including Equitable insurance postpartum the including No limit. insurance and expenses. coverage and period surrogate insurance other legal any loss of including any coverage. charges. income to the loss of income surrogate to the surrogate Surrogatetra Legal Surrogate Surrogatetran nsfers guardian of (traditional)i Intending sfersguardian guardianship Intending Intending the ntending couple. ship by by couple. couple. surrogate couple - adoption adoptionor child gestational order Imprisonm ent for Maximum engaging Maximum 10 Maximum Maximum 10 Minimum two No three in years. one year. years. years. provision. months. commercia l surrogacy Eligibility criteria for commissioning parent(s) Need to prove Natural Unable to give Existence Intending Intending barrenness absence of a birth to a child of a No mother is not mother is not i.e., uterus or and it is a medical requirement. able to bear a able to bear a incapability to other health permanent reason child. child. conceive. condition. condition.

140 PRS Issues for Consideration, The Surrogacy Regulation Bill, 2019, https://www.prsindia.org/node/842647/chapters-at-a-glance

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India United Country Surrogacy Netherlands South africa Greece Russia kingdom bill, 2019 No (includes Requireme No (single No (single No (single No (single civil nt of being Yes. male/female male/female woman woman partnerships) married allowed). allowed). allowed). allowed). . Eligibility criteria for surrogate mother Relation to intending No. No. No. No. No. No. parent(s) Not Age 25-35 years. <44 years. Not specified. Not specified. 20-35 years. specified. Requireme nt of being Yes. No. No. No. No. No. married No. Of No No own At least one. At least one. At least one. At least one. requirement. requirement. children No. Of times one No No No Once. No restriction. No restriction. can be a restriction. restriction. restriction. surrogate Consent of No provision. Not required. Not required. Required. Required. Required. the partner

Statistical insights

Is surrogacy a replacement development? For millennials women have nominated others to convey birth on their behalf.

However, technological advancements like IVF, softening of cultural attitudes and thus the trend for having kids later have ignited a boom in surrogacy.

In the past twenty years, it's become a worldwide development. There are not any precise figures.

However, within the UK alone, the number of parental orders created following a surrogate birth has tripled from 121 in 2011 to 368 in 2018. Actuality sort of surrogacy arrangements could even be even higher, as there is no obligation to hunt such associate order international surrogacy laws vary widely, as well. Italy, france, iceland, sweden, and germany are just a couple of the countries that have banned all sorts of surrogacy completely. England, canada, ireland, portugal, and south africa are variety of the countries that allow altruistic surrogacy, but even when allowed, there are

71 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 often restrictions. As an example, in south africa, altruistic surrogacy is simply allowed for heterosexual married couples.

The us, ukraine, russia and georgia have the foremost liberal laws within the planet, allowing commercial surrogacy, including for foreigners. Several asian countries won’t to possess liberal laws, but the practice has since been restricted. In the year 2015, thailand had banned commercial surrogacy and thus restricted altruistic surrogacy to thai couples in thailand. In the year 2016, cambodia had also banned commercial surrogacy. Countries like nepal, mexico, and india have also recently banned foreign commercial surrogacy. Surrogacy is legal and customary in iran and monetary remuneration a look at two prominent but contrasting globally.

Surrogacy destinations: USA and India The United States, where surrogacy is widely practiced has doubled many folds since 2004 is a fascinating case when examining surrogacy regulations and demands for surrogacy services by foreign nationals and on placing further analysis where questions related to exploitation in surrogacy arrangements. The usa has now been the only country in which it has now become a common source and destination country for international surrogacy arrangements. US citizens have increasingly sought surrogacy services outside of the us mainly due to the exorbitant expense for surrogacy and complex regulatory framework as compared to cheap and quality based healthcare services abroad. The pharmaceutical sector in the us reaches at an estimated (us$100,000), while at the same time, the USA is a popular destination country for wealthier foreign nationals seeking international surrogacy arrangements particularly for the upper class and from the much privileged background. Westerners such as people from canada, europe, or australia and also elite chinese are the majority ones. The usa has some of the most liberal ivf, gamete donation, and surrogacy laws (in some states) as compared to the western nations, while educated women, some of which are reported to be military wives work as commercial surrogates to help other families while earning extra income.141 Between 1999 and 2013, commercial carrier cycles resulted in little more than 13,380 deliveries and the birth of 18,400 infants to be precise. The data reflects that 9,819 (53.4%) of these infants were twins, triplets. In 2019, india had put a ban on commercial surrogacy and incorporated strict rules about any surrogacy. The surrogacy regulation bill has put an end to any commercial surrogacy in india and put tight restrictions on altruistic surrogacy. Nowsurrogacy is only available to indian couples who have been married for more than five years, and are between 23-55 years of age. And it must be an altruistic surrogacy. The surrogate must be a married relative, between 25- 35 years of age and with a child of their own.142 Significantly, the bill has allowed only indian couples, married for at least five years and who are childless having infertility problems, medically not fit etc. To opt for surrogacy. The bill does not allow singles or unmarried couplesand couples from the lgbtq community to have a child through surrogacy. These are some of the rigorous criteria’s for the surrogate mothers, genetic parents,

141 Global Surrogacy, Exploitation, Human Rights and International Private Law: A Pragmatic Stance and Policy Recommendations

142Loksabha passes surrogacy bill Lok Sabha passes Surrogacy (Regulation) Bill, The Hindu ( June 8, 2020, 10:35 PM),

72 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 fertility clinics, medical professionals, intended parents and the egg and sperm donors. Violators may face up to 10 years of imprisonment and fines of up to us$14,066 that is upto 10 lakh rupees. This data reveals that the laws relating to surrogacy in india have a narrow approach.143 it is being interpreted that india being a patriarchal society many ladies are forced to adopt the motherhood life, albeit the ladies doesn't need a child. There’s no room for consent for such women. This, itself shows that there's an enormous gender inequality within the country. The

united nations development program had prepared a report on gender inequality, india ranks 125 among 159 countries. Worse scenario is that a lot of indian women are unaware of the risks of such procedures, poverty and illiteracy drives these women to travel for the choice of surrogacy. Ina research studyit was found that Indian surrogate mothers unaware of how implantation of multiple embryos, foetus reduction.section operations can imperil their health or even prove fatal for some women.144.

As far back as 2009, the United Nations development program (undp) had warned about the human trafficking activities that take placewith the aim of performing surrogacy and thus it may be a developing pharmaceutical market. Indian lawyer anil malhotra, an international law expert, explains that “exploitation, extortion, and ethical abuses in surrogacy trafficking are rampant and go undeterred and surrogate mothers are used with impunity.” It is estimated that surrogacy market revenue may cross $27.5 billion by 2025: global market insights. Global surrogacy market is predicted to beat usd 27.5 billion by 2025, consistent with a replacement research report by Global market insights, Inc. There has beena rise in number of individuals affected by infertility problems. Which may primarily drive the surrogacy industry growth over the projected timeframe.”145

Could adoption and surrogacy co-exist?

143 Neeta Lal, Yale University Release 144Informed consent in medical decision‐making in commercial gestational surrogacy: a mixed methods study in New Delhi, India

145Advocate Anil Malhotra on Surrogacy Anil Malhotra, More questions than answers over rent-a-womb market, The Hindu (July 24, 2020, 11:32 PM), https://www.thehindu.com/opinion/open-page/More-questions-than-answers-over-rent-a-womb- market/article16208847.ece.

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To know the answer to this question, it is important to analyse global trends and laws applicable in major countries. In asia countries like thailand and india allow commercial surrogacy and thus has given a spot for reproduction tourism. This has mainly emerged because of cheap medical facility and good quality services. In western countries where couples opt foradoption of children

from abroad and where commercial surrogacy is legal. Annual number of international child adoptions in the world 1950-2020.146

Case studies

International case laws  Who’s a mother? Who is a child’s mother if one woman provides an ovum for fertilization and another carries the baby to term?147 that was the case before the california supreme court in the case of johnson v. Calvert148 in 1993. Facts-the plaintiffs signed a contract with johnson (defendant) providing for the implantation of an embryo created by mark’s (plaintiff) sperm and crispina’s (plaintiff) egg in the defendant. The defendant waived all parental rights to the child, agreeing to accept payment in installments for her services. Defendant later requested the balance of payments due so that she could release the boy. The plaintiffs filed suit, seeking a declaration that they were the unborn child’s legal parents. Unfortunately, ties between the two parties have worsened. Mark discovered that anna had not disclosed that she had suffered many miscarriages. Decision- in october 1990, the parties stipulated that mark and crispina were the biological parents of the child. The trial court ruled after hearing evidence and arguments that mark and crispina were the “genetic, biological and natural father and mother” of the child and that anna had no parental rights to the child, and that the surrogacy contract was lawful and enforceable against anna’s claims. The court also terminated the visitation permitting order. The court held that the natural mother is the one who intended to procreate and decided to raise as the child as her, will be called the natural mother. From the beginning, the complainant intended to be the mother of the child.

146 Jean Francois Mignot on will international adoption be replaced by surrogacy, Mar,20, 2017 147 Mark Rose, Johnson v. Calvert and the New Children of Our Imaginations, 22, Jstor 613, 613 (1996). 148 5 Cal. 4th 84.

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 In the case of baby melissa149or baby m case, Facts- william stern and mary beth whitehead signed a surrogacy contract in 1985. In the event of mr. Stern’s death, the contract gave mrs. Stern sole custody. Mr. Stern agreed to pay $10,000 to mrs. Whitehead after the birth of the child, upon delivery to him. Right from the moment of conception, mrs. Whitehead knew that she would not be able to part with the child. Even then she turned her child over to the sterns. Ms. Whitehead was struck by unbearable sorrow later that evening. The sterns worried she might commit suicide, turned her child over to her on her word that she would return her in a week. It became obvious that mrs. Whitehead was unable to return the child, and thus, mr. Stern filed a complaint seeking enforcement of the surrogacy arrangement. An order was issued in favour of stern, and the court clerk aided by officers, stormed mrs. Whitehead’s house to enforce the order. Mrs. Whitehead escaped with the child. The police caught mrs. Whitehead and handed the kid over to the sterns. Decision- the court held at trial that the surrogacy contract was valid, and ordered the parental rights of mrs. Whitehead. But the superior court of new jersey held that the surrogacy contract was not enforceable, but the sterns should retain custody based on the “child’s best interests”. The surrogacy arrangement was in contrast with public policy which states that each of their natural parents should stay with the children and raised their children.

National case laws  Manji yamada v. Union of india (uoi) and ors. 150 Facts- the biological parents dr. Yuki yamada and dr. Ikufumi yamada came to india in 2007 and had selected a surrogate mother and a surrogacy agreement was formed between the parents and the surrogate mother. There were some matrimonial discords between the biological parents and thus, they had a divorce short before the delivery of the baby. The father, still wanting to take care of the child, faced serious legal problems as the indian law forbids the adoption of single men. Neither the intended mother nor the surrogate mother wanted to take custody of baby manji Issue- a habeas corpus writ petition was filed by an ngo, m/s satya, before the bench division of the high court of rajasthan. The petition questioned the validity of surrogacy and condemned it as feeding an illegal business in india and emphasized the need for the enactment of legislation. The division bench then issued an order requiring that the child before the court. The order was questioned by baby manji’s grandmother. Decision- the supreme court defined “commercial surrogacy” as a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb, and is usually resorted to by well-off infertile couples who can afford the costs involved to fulfil their dream of parenting. This medical practice is legal in many countries like india owing to its excellent medical facilities, strong foreign demand and ready supply of poor surrogates. Commercial surrogacy is also often known by emotionally charged and inherently offensive words “wombs for rent,” “outsourced pregnancies” or “baby farms” (para 9). Further, surrogacy can also be a method used by a single male or a homosexual partner to start a family. (para 12) While setting aside rajasthan high court’s order, the apex court held that cases concerning the misuse of surrogacy and becoming an illegal scam in india should be brought before the commission constituted under the protection of child rights act, 2005. (para 13) the supreme court also stated that there had been no such complaint in relation to baby manji, so the order requiring

149109 N.J. 396 150AIR 2009 SC 84

75 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 her production before the court was not valid. Also, the court issued passport to baby manjhi in order to facilitate him to return to his home country with her grandmother, as she was given temporary custody of the baby.

 Jan balaz v. Anand municipality and ors.151 Facts- in january 2008, twin babies-nikolas and leonard were born to a surrogate indian mother. The petitioner and his wife made a surrogacy agreement with the respondent- surrogate mother. As the petitioner wife was unable to conceive they contacted an indian citizen who donated ova and the petitioner’s sperm was then fertilized with the donor’s ova through a scientific process, and the fertilized embryo was implanted into the surrogate mother’s uterus. Both the petitioner and his wife are german nationals. Since babies were born in india and are indian residents, the petitioner applied in india for their passport. Their passport application was denied by the authorities. Issue- the petitioner questioned the denial of a passport to the twins by the local passport authority on the basis that the twins were indian nationals by reason of their birth in india to an indian surrogate mother, and therefore entitled to indian citizenship under section 3 of the citizenship act, 1955. They also argued that because surrogacy in india was not illegal, a surrogate mother had the privilege to be named a child’s mother for the reason of acquiring a passport. Decision- the court noted that the egg donor should not be required to reveal her identity, although she was genetically linked to the twins, because it was entitled to her privacy under article 21. The court relied on the mother-child relationship established during the delivery process to assign the surrogate the position of the natural mother instead of the intending mother who is neither the genetic mother nor the natural one. (para 16) The court ruled that both the gestational mother and the egg donor were indian citizens, and reiterated the stance that the twins were born to an indian national. Further, the twin babies, in this case, are persons born in india, undisputedly one of their parents (the surrogate mother) is an indian citizen. The two babies have therefore satisfied the ingredients of section 3(1) (c) (ii) of the citizenship act, and hence they are indian citizens by birth. Therefore, their passports to travel abroad cannot be denied to babies who are indian citizens who would otherwise be in violation of article 21 of the indian constitution. (para 17) The court directed that the statute related to surrogacy be enacted early. Under the guidance of the court, the indian medical research council (icmr), under the purview of the ministry of health & family welfare, government of india, has drafted the assisted reproductive technologies (regulations), art act, 2003, which provides for the effective supervision, surrogacy and prevention of the misuse of this technology in india. (para 20)

Maternity leave  P. Geetha v. The kerala livestock development board ltd.152 Facts- unable to conceive a second child, the petitioner chose the surrogacy route along with her husband. A baby girl was delivered in december 2012, by the surrogate mother. The applicant requested parental leave to take care of the unborn child with respect to the expected delivery date. The same was refused to her on the basis that the maternity benefit act, 1961, and the kerala livestock development board ltd. Staff rules & regulations, 1993 does not permit maternity leave in the case of surrogacy.

151AIR 2010 Guj 21 1522015 (1) KHC 165

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Decision- the high court of bombay held that the petitioner had the right to maternity leave in respect of the child born through surrogacy. It was ordered that all the leaves taken by the petitioner to be converted to maternity leave as the petitioner prayed. (para 74)

 The same view was reiterated in the case of hema vijay menon v. State of maharashtra and ors.153, The petitioner should have the same privileges and responsibilities as are of the natural mother of the child. Motherhood never ends with the birth of the child and thus, paid maternal leave cannot be denied to the commissioning mother like the petitioner. So far as pregnancy advantages are concerned, a mother cannot be discriminated against on the mere basis that she obtained the baby by surrogacy. Even though the petitioner did not give birth to the child, the child was given in the petitioner’s protected hands as soon as she was born. A newly born child cannot be left at the mercy of others. A mother would include a commissioning mother or a mother who secures a child through surrogacy, as already stated above. Any other definition may frustrate the intent of giving maternity leave to a mother who has begotten the child. (para 7) Right to reproduction under article 21  Devika biswas v.union of india (uoi) and ors.154, The supreme court acknowledged the right to reproduction as an important aspect of the ‘right to life’ under article 21. Such reproductive rights include the right to carry a baby to term, to give birth and to raise children. These also provide for rights of privacy, dignity, and integrity of the women. Thus, limiting surrogacy only to married spouses, heterosexuals, widows or divorcee under a certain age range and refusing lgbt, single people and older couples violate article 21.

Other related incidents  Israeli gay couple The case of the israeli gay couple later became in the news. The gay couples yonathan and omer were unable to adopt a surrogate mother or have one in israel. They just arrived in mumbai. Yonathan had his sperm donated. They selected out a surrogate. Baby evyatar was born. The homosexual couple took their son evyatar to israel. Before the baby’s passport and other documents were prepared, the israeli government had required them to do a dna test to prove their paternity. The results were sent to the israeli consulate, which issued him a passport,” says yonatan.155

 Spanish gay couple Juam and mauro, a gay couple from spain, became parents of twins thanks to the assisted reproductive technique (art) that was used in the capital’s fertility centre. One of the parents gave his artificially fertilized sperm with donor eggs, and then placed it in a surrogate mother who delivered the babies. Juam and mauro decided to preserve their indian heritage for their children and hence named them jaya and uma.156

153AIR 2015 Bom 231 154AIR 2016 SC 4405 155Prakash Parsekar, Made-in-Mumbai baby for Israeli gay couple, DNA (Nov 18, 2008, 04:10 AM), https://www.dnaindia.com/mumbai/report-made-in-mumbai-baby-for-israeli-gay-couple-1207405. 156Durgesh Nandan Jha, City gifts gay couple parenthood, Times of India (Feb 16, 2011, 11:24 AM), https://timesofindia.indiatimes.com/city/delhi/City-gifts-gay-couple-parenthood/articleshow/7511373.cms.

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Advantages of surrogacy 1. Surrogacy supporters claim that the surrogacy agreements are helpful to all involved parties as they fulfil the needs of two desperate women. It is also claimed that “the barren gets a baby, the broke gets a benefit” in the surrogacy scheme. Surrogate mothers are typically women who have a deep desire to support others in distress who are caring and compassionate. It can be a life-changing opportunity to help those who suffer with infertility to have a baby to complete their families, resulting in joy to fulfilment for all parties involved. 2. The mothers who are surrogates are in dire need of the income they receive. Basically, the surrogacy remuneration, the nature of the payment (lump sum) and the period of time over which the amount is earned is a key factor for being a surrogate. The people who indulge in surrogacy appear to be poor. They agree to reproduce in exchange for money. The surrogates are mostly uneducated, mostly engaged in informal jobs, often migrants searching for better livelihood and live in slum areas with insufficient accommodation. 3. To the women who have infertility due to some causes, it is the perfect solution for them. This is the most modern method to combat infertility. 4. It helps people who are gay, lesbian or single man or woman to have their offspring by this means and complete their family. 5. It incorporates the intended parents’ genes so that the commissioning parents have a hereditary link with the surrogate child. 6. Surrogacy provides the opportunity to select from a range of choices that better suit each unique case. For example, if the woman is pregnant but cannot risk the physical complications of pregnancy, each couple can contribute their own dna for the surrogate mother to carry. This method is called in-vitro fertilization (ivf). If the woman is infertile, by using the father’s sperm and the surrogate mother’s egg, the couple can still has a biological link with the infant.

Disadvantages of surrogacy 1. The practice of surrogacy is of economic, emotional and physical abuse for the women. A significant consideration is that most women who are engaged as surrogates do so because they really need the funds to support their families. Such contracts make women expose to all the rigors of childbearing and eventually the child had to be given away. 2. If the child born is abnormal and both parties i.e. The commissioning parents and the surrogate mother refuses to accept the child then, it will surely affect the child because of this behaviour of the parties. 3. The surrogacy is even more identical to the prostitution where the women are hired and provided the monetary compensation for the job they are performing for others, by compromising themselves. It actually renders them as a ‘breeder machine’ and instead, they lose the relationship with the infant in the womb, and instead rely on the income they receive from that. 4. Women may even be pressured by their families to get them the money by doing such sorts of activities that threaten women’s personal liberty and equality. 5. Surrogacy includes sale of children. Perhaps the most significant opposition to commercial surrogacy is that it places a price on them, it restricts children to mere items of barter. 6. It is an expensive procedure.

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Survey, analysis and expert comments An electronic poll was conducted and whereby more 120 participants expressed their opinions on the topic. Interviews were conducted my means of telephone and emails to various experts in the field. One telephonic interview was conducted with adv. Divakar reddy, managing director at dr. Padmaja ivf, hyderabad and views from three professionals, namely, dr neha bahl,assistant professor, grade-ii, amity law school, noida, adv. Richa pachori, llm from queen mary university of london and adv. Arjun kadam, practicing advocate at bombay high court. We have been able to gather public and professional opinion on the ban of commercial surrogacy. The data has been collected from students, legal and healthcare professionals.

It is evident through the responses received that a majority of people say that commercial surrogacy should be regulated instead of putting a complete ban. The numerical data shows the responses received on the question. Whether commercial surrogacy should be banned or regulated. The responses suggest that 51.61% voted for protection of rights of surrogate mother and child

must be focused. While regulation of surrogacy being secondary. On conversation with adv. Reddy who runs and own his own ivf clinic, he explains that how commercial surrogacy is necessary and is a boon to the intended parents, who are longing for a child and that commercial surrogacy has been a last resort for such couples.

Opinion on altruistic/commercial surrogacy:

79 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 in furtherance, with the above data. When asked a question on whether they would prefer altruistic or commercial surrogacy. 58.9% people voted for commercial surrogacy, this response portrays that commercial surrogacy is much welcoming within the society and putting a blanket ban on commercial surrogacy is a subject which needs to be reconsidered by the government.however, the inter-sectional aspects of how the surrogacy bill would impact on women’s right to their bodies.

Opinion on marital status for surrogacy:

On a closer analysis of the surrogacy bill’s provision with regards to restricting surrogacy to married heterosexual couples. Which, also discriminates against members of the lgbt community, older couples, and single/unmarried people who might seek to have children. The bill violates their right to personal liberty. The right to equality is a fundamental right conferred by the constitution to its people and the bill goes against the principles of equality provided under article 14 of the indian constitution.

80 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 the public opinion on surrogacy should be allowed to everyone, is evident in the above statistical data. Wherein, 81.45 % people support that everyone should have the right to opt for surrogacy. Adv. Reddy supports this claim by explaining that each individual has a bonding and feelings for his own child. Is it too much to ask from the government to bring one’s own offspring to life and that given in the said bill it restricts surrogacy only to married couples.

India being a tourist spot for surrogacy: in the year 2005, there was an increase in demand for commercial surrogacy for most part by

foreign nationals. The government in an effort to regulate and manage the surrogacy business in india adopted restrictive measures aimed towards the growth of illegal clinics and exploitation of surrogates, who come from a weaker economic background. In 2015, the government prohibited surrogacy for foreign nationals eventually. The below poll figures show that the 67.74% of the voters are of the opinion that india had become a market for reproductive tourism for foreign nationals. Whereas, 32.26% are against. With minimal expenditure and quality healthcare services available in india and other asian countries, it was a haven for foreign nationals. However, government has put a complete ban on surrogacy for foreign nationals since 2015. Opinion on adoption or surrogacy:

81 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 both surrogacy and adoption are expensive processes, although surrogacy is the more expensive of the two. However, both the things have thrown advantages and disadvantages. Wherein, complying with adoption procedures might take more than a year or so and where, adoption is concerned the intended parents do have a certain degree of control over the matter as in when the child could be expected, choosing the surrogate mother for the child etc. But, all this comes with a heavy price tag as because the intended parents are required to pay for medical expenses and insurance of the surrogate mother along with a certain consideration over and above the insurance. They also got to bear consultancy fees of doctors etc. But, as compared to surrogacy people find adoption as a better option. For obvious reasons, couples who are completely fit and are fertile don’t see surrogacy as an option. Adv. Reddy is of the opinion that the science of surrogacy is only for the needy ones and must not be availed for one’s own selfish reasons. It is for them who are not able to give birth to a child of their own, who are not medically fit. The below graphs represent that 77.42% people agree that adoption would prove better as compared to surrogacy.

Advertisements or promotion of surrogacy: In india any form of promotion or advertisement is not allowed because of ethical reasons and code of conduct in the medical profession. Clinics which facilitates such services and who openly advertise or promote surrogacy are the unregulated business of surrogacy. Which lead to concerns over the rampant exploitation of surrogate mothers. Commercial surrogacy is unregulated industry and hence is wider and deeper, spread across the country. The data below shows that majority of the voters have not encountered promotion related to commercial surrogacy. Whereas, a few voters

(12.90%) have encountered such promotional activities. However, after the surrogacy (regulation) bill put to force, all promotional activities related to commercial surrogacy shall be termed illegal and may attract penal provisions against every individual or entity if, found guilty for such offence.

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Telephonic conversation with Adv. Reddy: In a telephonic interview with Adv. M. Divakar Reddy a lawyer by profession, He is the Managing director at Dr. Padmaja IVF centre in Hyderabad and has more than 23 years of experience in this field. He has completed his master’s in law from osmania university, hyderabad.

1. Legislature has introduced surrogacy (regulation) bill 2019 for putting a ban on commercial surrogacy, what is your opinion on this? Basically, the thought behind putting a blanket ban over commercial surrogacy has been introduced because of unethical and immoral practices within the medical profession. The greed for earning money by some professionals and thereby exploiting the women from economically weaker sections has raised question of irregularities within the profession. For that the ones who are guilty must be punished, whereas the activities of commercial surrogacy must be regulated.

2. What do you think who should opt for surrogacy?

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The science of surrogacy should not be used for luxurious or fancy purposes, it is a boon for the unprivileged couples who are infertile, medically unfit, women with adinomiotic uterus or malformed uterus. For all these reasons surrogacy is the last resort for desperate infertile couples.

3. Do you think women are being forced into surrogacy for earning more money? I think the labour which the women goes all through the 9 months cannot be forced. No women will carry someone else’s baby for that long period if they are forced into these activities. As far as money is the consideration some entities may pay more to the surrogates, depending on case to case and the quality of services provided by the professionals. We’ve established a facility known as surrogate homes for the protection and taking care of around 120 surrogate mothers and they are being treated well during the period of their pregnancy.

4. What do you think whether altruistic surrogacy will be accepted while commercial surrogacy gets banned? I believe altruistic surrogacy will not work because in the future only nuclear families shall exist, unlike the olden days where everyone used to stay in a joint family. Many times the husband do not consent with going for the altruistic form of surrogacy. Hence, this shall put a stop the surrogacy phenomenon.

5. As a managing director of an ivf clinic, do you think running a surrogacy clinic is a headache? Yes, i think it is a headache and in this profession we have our apprehensions but eventually this is for a noble cause and we’re glad that we are into this profession.

6. Can you give an example of a situation which was complex and how you dealt with it? Yes, there was one such case where two women from nepal were brought in for surrogacy, later on their surrogacy was refused due to some internal clashes and because of which the organisation had to face inspections, but everything was completed legally. So, hence some issues were faced but they were handled diligently by abiding proper law and order.

7. Can adoption be an alternative to surrogacy? No, adoption cannot be an alternative to surrogacy because every living being wishes to have its own offspring. The bond, affection which the mother has for her own offspring could not be gained control of in a process like adoption. Moreover, the legal and procedural activities take more than a year’s time to complete adoption.

8. How do you see the future of commercial surrogacy in india after the ban? The clause related to close relatives had been struck down by the legislature and that any person could offer themselves for surrogacy. But, with appointment of such surrogate only the medical and insurance expenditures must be looked after and no other consideration shall be paid to such surrogate as per my understanding. But, somewhere or the other this legislation lacks regulation aspect in it.

9. Any, message or positive attributes that you would like to convey? Surrogacy as is running should not be allowed by the government and few restrictions could be put in order to regulate the commercial surrogacy and surrogate homes. However, putting a complete ban should not be an option.

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Questionnaire –emailed to experts 1. Is a law regulating surrogacy in our country welcoming? 2. Should the law completely ban commercial surrogacy? Why? 3. Should single parents, same-sex couples, divorces, widows allowed to use surrogacy to have a child? 4. Is right to parenthood a fundamental right and would surrogacy help in achieving the same? 5. Do you think children born out of surrogacy, in general, are treated in inhuman behaviour and the rights along with the surrogate mother are affected? 6. What changes would you want regarding surrogacy?

Responses by experts Dr. Neha Bahl, Asst. Professor at Amity Law School, Noida (Phd in Surrogacy) 1. There is no law as such in India for the regulation of surrogacy. The surrogacy regulation bill, 2019 & now bill, 2020 are not enacted into laws for now. The only regulation till date we have are the guidelines provided by the hon’ble supreme court of india which are totally welcoming.

2. no, the law should/cannot completely ban commercial surrogacy. It should put certain restrictions on the commercial aspect of the same, as certain women who have no means of livelihood are forced to opt for such activity and they will be in troubles if this is totally banned. The legislator should think in the light of welfare of the state concept & should not arbitrarily enact upon something.

3. Yes of course, when the law making bodies can allow live-in relationship, lgbt rights etc., why not surrogacy by single parents, same-sex couples, divorcees, widows. It is the right of every individual to choose for his own life. If you read the surrogacy regulation bill, 2020, it is throwing light on such aspects.

4. Right to parenthood cannot be considered as a fundamental right, as it depends on the wish & will of every individual to choose for his own life, to choose whether to have babies or not. Yes of course surrogacy will help to a great extent in fulfilling the same.

5. No i don’t think so & they should not be treated as such.

6. Law on the current issue is the need of the hour & should be enacted as soon as possible by the legislature and the provisions of the said law should be enacted in such a manner so as to provide welfare of the state and its citizens. Every individual undergoing such therapy should be benefitted through the law enacted. There should also be a provision under the said law for the regulation of commercial aspect and providing of sanctions upon it, if violations take place.

Adv. Arjun Kadam 1. The law regulating surrogacy in our country is perfectly fine since it seems not to ban surrogacy per se but only commercial surrogacy.

2. There is no harm in completely banning commercial surrogacy for two reasons;

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 The doctrine of res extra commercium  The mischief sought to be remedied is, preventing exploitation of surrogate women and also to proscribe marketisation of surrogacy in india particularly by the west.

3. Same-sex couples, widows, single parents can always fulfil their desire to have a child vide the process of adoption and guardianship as per the relevant law depending on the religion they follow. Moreover adoptions can also be facilitated vide existing laws like the juvenile justice act, 2015. Thus no need for pressing a demand for surrogacy alone.

4. There cannot be a straight jacket response to this. As it depends upon the vagaries of communities across several terrains and countries.

5. Precision in regulations is solicited. Vagueness usually leads to arbitrary interpretations.

Adv. Richa Pachori 1. A law regulating surrogacy is definitely a welcome move. Regulation is necessary to safeguard the rights of the various parties involved in this dynamic, including a new born. 2. Definitely not. A blanket ban on commercial surrogacy sounds more like a knee jerk, and an easy response to the challenges faced in a procedure like surrogacy. It is undeniable, that there have been cases wherein the rights of the surrogate mother have been infringed, and they have been taken advantage of. But that does not immediately equate to a blanket ban as the answer. On the one hand, surrogacy is the saving grace of many families - families that are able and willing to care and provide for their child. In such a scenario, it is almost a punishment to impose a blanket ban. While adoption is also an option and a rather altruistic one at that, it is not right to take away the option of surrogacy to families who wish to have a child with their own genetic makeup. On the other hand, surrogacy is also a way for many women to provide for their families. The surrogate mother is able to take care of her own family, and may also not wish to have any more children to care for. In such a way it is wrong to take away that means of income from her. It is advisable to rather look into other ways wherein commercial surrogacy can be regularised into a process that is safe for both – the families seeking to have a child through surrogacy and also for the surrogate mothers. Strict background checks and an assessment body can be set up, to ensure that this procedure is conducted in a safe and fair manner for each of the parties involved.

3. Yes. For many people such as same sex couples, surrogacy may be the only way they can have a child that is biologically their own. The mere reason that the family is not one suiting our traditional mind-sets, does not make single parents, same-sex couples, divorcees or widows any less deserving of the right to parenthood. And neither does it automatically mean that they are unfit to be parents. Instead, a strict background check may be done and a monitoring body may check in to assess the safety of the child. India, having recently decriminalised members of the lgbtqi community, which was a welcome step forward. And imposing a blanket ban on commercial surrogacy seems like a step backwards, rather than forward to a country welcoming the right to life of members of the lgbtqi community.

4. Right to parenthood is a fundamental right of human beings. Surrogacy helps protect this right, and imposing a blanket ban on commercial surrogacy, instead takes away this right from many

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5. Absolutely not. Having been in close contact with children born out of surrogacy, they are treated just like any other child belonging to the family and born in a “normal” manner would be. Rather from my experience, they are treated with a lot more love and care simply because they are born out of a process which requires so much effort, time, money among other things. And therefore, parents would not enter into such a long drawn process unless they really wished to have children of their own. The surrogate mother should not be coerced into this process. But if they are compensated fairly for their services, and are well taken care of – this process only enables the surrogate mother to provide for her family.

6. A regularisation in the process of surrogacy is definitely required. It would be welcome to see a regulating body to oversee the conduct of surrogacy. This would also ensure that the surrogate mother is not taken advantage of, and that also there is no situations wherein the surrogate refuses to hand over the child to the parents.

Summary: Through the responses captured it is clear that majority of the voters are of the opinion that instead of imposing a blanket ban on commercial surrogacy. It would be better to have regulations and the government should act as a watchdog over the organisations facilitating surrogacy and ivf clinics to prevent malpractices across the nation. The bill must focus upon protection of the surrogate mother and the child born through surrogacy, prescribe for psychological and mental preparedness of surrogate mother, right to confidentiality and protection of her interest. Since, everyone is free to make a choice for themselves. Thusly, the legislature should have a wider vision as to who can opt for the process of surrogacy, as the right of individual is violated if the person is a single parent or is lgbt. Furthermore, women from economically weaker background or women who are less learned should not be forced into the business thus, the medical profession should respect the individual's dignity. However, experts from the legal profession feel that commercial surrogacy should be banned and there is nothing wrong in doing so, their statement is supported by explaining that altruistic surrogacy is still available for intended parents and whereas, the question for single parent, lgbt parents the option of adoption is still open for them. By allowing commercial surrogacy could give rise to problems for the surrogate mothers, who may not be able to fight legal battles and apart from all these the question of the new born life is put on stake. Thus, there are mixed responses from the poll conducted. Now it is for the legislature to put the bill into force and where question of right to equality is concerned, the supreme court shall pronounce about the bill’s constitutional validity.

Recommendations With the sole belief of having a law on regulation of surrogacy in our country, the surrogacy (regulation) bill 2020 has been welcomed by all strata of the society. The bill which was approved by the lok sabha in 2019 (incorporating recommendations of the parliamentary standing committee report of 2016 relating to issues like the appeal procedure, withdrawal of consent by the surrogate mother before implantation of embryo in her womb, etc.) And introduced in rajya sabha in the same year had some changes made before the union cabinet approval in february 2020, on basis of recommendations made by the select committee (removal of close relative, inclusion of widows

87 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 and divorcee woman under intending mother, inclusion of indian origin intending couples under the bill, etc.). There are yet some areas of law which we would like the government to re-examine or reconsider. Following are our recommendations / suggestions towards the bill of 2020:

1. definition of ‘altruistic surrogacy’ under section 2 sub-section (b) states that no charges, remuneration, fees, expenses or any monetary incentive other than the medical expenses, insurance coverage and such other prescribed expenses shall be paid to the surrogate mother or her legal representatives. The section remains silent on assistance that can be provided in the nature of tangible assets like a house, jewellery, car, etc. Which can violate of the intention of the law.

2. Altruistic surrogacy demands high expectations from a woman willing to be a surrogate without any reward or remuneration but a decision based on moral intentions and benevolence. Pregnancy is not a one minute job but a labour of nine months with far reaching consequences concerning her well-being, her time and her family. In the altruistic arrangement, the intending couple gets a child; and medical practitioners, advocates and clinics get paid. Conversely, the surrogate mothers are asked to practice altruism without a single penny against article 23 of the constitution of india. Further, the ‘willing women’ concept will on bring in more exploitations, given the patriarchal familial structure, poverty and power equations not every woman has the ability to resist a demand that she be a surrogate for another woman. Altruistic surrogacy model as suggested in the bill is established more on high-mindedtraditions than on any systematicbenchmarks and all kinds of value judgments have been injected into it in a paternalistic manner. Altruistic surrogacy throughout the world means compensated surrogacy and a range of monetary payments to surrogate mothers are permitted as reasonable compensation. Even the law commission report no. 228 of 2009 endorses repayment of all equitableexpenses to the surrogate mother. We should also allow compensated surrogacy for the well-being of the willing women and also to safeguard her rights by may be having a fixed amount decided in the act that needs to be paid to her.

3. The argument that adoption is an option available to the intending parents and they should opt for the same is not in line with the demand and supply statistics of the central adoption resource agency (cara) study which suggests only about 25% of applications received for adoption can be accepted considering the availability of children for adoption. Although adoption is a generous choice accessible to the community at large and the government cannot force adoption instead of surrogacy. Surrogacy and adoption have to be considered as equal options and the government cannot take away the reproductive rights of couples to have a biologically related child through surrogacy by forcing adoption.

4. Intending couples as defined by the bill only include the married couple where one is man and other woman and an additional definition of intending woman includes single woman who is either a widow or a divorcee and fulfils the age criteria. The genuine requirement of surrogacy by singles (unmarried), live-in-partners, lgbtqi, non-nationals, etc. Is completely ignored. Such individuals have been omitted from the list and they are the ones who need the practice of surrogacy the most. This is against the article 14 and article 21 of the constitution of india.

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5. Section 3 (vii) prohibits storage of human embryo or gamete for the purpose of surrogacy. Section 53 of the draft art bill, 2020ordersparamount possible standards in the storage and handling of human gametes and embryos for the period of not more than five years on a prescribed fee after which such embryo shall be allowed to succumb or donated to a research organization registered for research purposes. Normally three or more embryos are created during the process of surrogacy and in-vitro fertilization. Out of which either two or three embryos are moved in the womb of the surrogate mother during one cycle and remaining embryos are cryo-preserved so that if the first cycle fails, then the residual embryos can be used in successive cycles. The success rate of attaching of embryos in one singular attempt is around 30% under the best of circumstances. Gamete (either oocytes or sperm or both) also need to be cryo-preserved before producing the embryos as the timing of the formation of the embryos in-vitro has to be consistent with the menstrual cycle of the surrogate mother. Frequent extraction of eggs and fertility medications that stimulate egg production may lead to the danger of ovarianhyper-stimulation for the intending mother or the donor. There can be several other situations like the surrogate mother aborting on the way, the baby being born still or dying early or turning out to be congenitally anomalous, which may warrant storage of embryos. Hence it is recommended that storage of embryos should be permitted and clause 3(vii) be amended appropriately permitting storage of embryos on the lines of art bill 2020.

6. Section 4: no time limit has been suggested for allotting an essentiality certificate by the district medical board in case the application for surrogacy is disallowed. This gives unrestricted powers to the district medical board for issuance of essentiality certificate. It should be made compulsory that the essentiality certificate will be issued within a definite time frame. Suitable facilitating amendments should be made in section 4 and other relevant sections of the bill.

7. An innocent life should not suffer with lack of care &loneliness. Things might not always work as planned for intending parents and therefore, the bill needs a clear provisions regarding roles and responsibilities of commissioning couples from the point of view of the best interest of such surrogate child / children as well as from the point of view of safeguarding of rights of the surrogate mother.

Conclusion In the modern era scientific concepts with or without regulation, might transform our future. Once science has developed the potential of doing one thing that will boost the happiness of some individuals, it's possible that the new innovations will be pursued. Notwithstanding we tend to as a society tried to stop the transformation that the new technology is conveyance, we would not be in a position ultimately to stave it off. As long as the legislature allows surrogacy or generative technologies, couples who are desperate and longing for a child through surrogacy may visit foreign countries where they are obtainable. What is more they will use the technologies from a way by merely transporting their sperms, egg or embryo. Consequently it's possible that in time the new technology can bring the chance to several single parents, same-sex couples to become a biological parent. And for fertile women,

89 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 natural childbearing can become just one selection available out of the many. Singles and couples are going to be ready to opt for whether or not to parent, whether to gift the genetic material for the kid, and whether or not to bear gestation, and those choices can exist severally of one another. Conceivably, at some future time individuals can have totally different approach towards childbearing than we tend to do in the current scenario through a legislative bill. However, notwithstanding the future of surrogacy cannot be comprehended yet, but there is nothing to hasten it by imposing complete ban and even limiting the new reproductive possibilities through commercial surrogacy. The current ban might substantially slow down the transformation the legislative intends to bring. In the end it can be said that even if surrogacy overtakes the natural ways of pregnancy, only those who have been able to get children from it know the value of legitimacy of surrogacy. In india, infertility is considered incompleteness for a woman, hence they have to resort to surrogacy to live peacefully in society. Adoption is legally permitted then why not surrogacy. Everybody is worthy of the happiness parenthood brings and science makes sure that surrogacy can make families content and law should complement it too. It is evident from the wording of the bill that the bill was enacted with the sole purpose of controlling an already existing surrogacy industry. Nonetheless, there are still other areas where there are ambiguities and in the future, may serve as loopholes. Legal contracts ought to change in order to protect the rights of surrogate mothers, taking into consideration the inherent reality that decisions on surrogacy are made under certain personal circumstances and could change with time. Surrogacy arrangements should contain provisions covering the surrogate mother's medical care and emergency requirements. As india is now a thriving surrogacy industry, due to the absence of detailed piece of legislation, it has taken about numerous accompanying complexities and inscrutable impact to society. The surrogacy (regulation) bill 2020reinforces the ban on commercial surrogacy, but it does not resolve the larger social, physical, psychological, mental and economic difficulties that endure to hover the health and safety of both the surrogate mother and the infant. Only eliminating the commercial aspects of the current surrogacy agreements will not remove the risks of abuse.

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