SURROGACY UNDER INDIAN LEGAL SYSTEM: LEGAL AND HUMAN RIGHTS CONCERNS THESIS SUBMITTED TO COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE FACULTY OF LAW BY ANEESH V. PILLAI UNDER THE SUPERVISION OF Dr. V. S. SEBASTIAN DEAN AND FORMER DIRECTOR SCHOOL OF LEGAL STUDIES, CUSAT SCHOOL OF LEGAL STUDIES COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY KOCHI, KERALA - 682 022 JUNE 2013 SURROGACY UNDER INDIAN LEGAL SYSTEM: LEGAL AND HUMAN RIGHTS CONCERNS THESIS SUBMITTED TO COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE FACULTY OF LAW BY ANEESH V. PILLAI UNDER THE SUPERVISION OF Dr. V. S. SEBASTIAN DEAN AND FORMER DIRECTOR SCHOOL OF LEGAL STUDIES, CUSAT SCHOOL OF LEGAL STUDIES COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY KOCHI, KERALA - 682 022 JUNE 2013 ---------------------------------------------------------------------------------------------- DECLARATION ----------------------------------------------------------------------------------------------- I hereby declare that the thesis entitled, “Surrogacy under Indian Legal System: Legal and Human Rights Concerns” for the award of the Degree of Doctor of Philosophy in Law is the record of bonafide research work carried out by me under the guidance and supervision of Dr. V. S. Sebastian, Dean and Former Director, School of Legal Studies, Cochin University of Science and Technology, Kerala. I further declare that this thesis or any part of this thesis did not form part of any dissertation and has not been submitted by me in any other University/Institution for any Degree, Diploma, Associateship, or any other title or recognition. Kochi 28.06.2013 Aneesh V. Pillai (Research Scholar) School of Legal Studies Cochin University of Science and Technology Kochi – 682 022, Kerala, India ---------------------------------------------------------------------------------------- Dr. V. S. SEBASTIAN Dean & Former Director ----------------------------------------------------------------------------------------------- CERTIFICATE This is to certify that this thesis entitled, “Surrogacy under Indian Legal System: Legal and Human Rights Concerns” submitted by Shri. Aneesh V. Pillai, for the award of Degree of Doctor of Philosophy in Law is the record of bonafide research work carried out by him as part-time research scholar of School of Legal Studies, Cochin University of Science & Technology, under my guidance and supervision from 07.06.2010. No part of this thesis has been submitted to any University for the award of any Degree or Diploma, whatsoever. Dr. V. S. Sebastian Kochi (Research Guide) 28.6.2013 ------------------------------------------------------------------------------------------------------- Mob. 09447154620 Email: [email protected] ------------------------------------------------------------------------------------------------------------- CERTIFICATE ------------------------------------------------------------------------------------------------------- This is to certify that the important research findings included in the thesis entitled, “Surrogacy under Indian Legal System: Legal and Human Rights Concerns” have been presented in a research seminar at School of Legal Studies, Cochin University of Science and Technology on 3rd January, 2013. Aneesh V. Pillai (Research Scholar) Dr. V. S. Sebastian (Director & Research Guide) Kochi 04. 01. 2013 School of Legal Studies Cochin University of Science and Technology Kochi – 682 022, Kerala, India ---------------------------------------------------------------------------------------- Dr. V. S. SEBASTIAN Dean & Former Director ----------------------------------------------------------------------------------------------- CERTIFICATE This is to certify that this thesis entitled, “Surrogacy under Indian Legal System: Legal and Human Rights Concerns” submitted by Shri. Aneesh V. Pillai, for the award of the Degree of Doctor of Philosophy in Law is the record of bonafide research work carried out by him as part-time research scholar of School of Legal Studies, Cochin University of Science & Technology, under my guidance and supervision from 07.06.2010. All the relevant corrections and modifications suggested by the audience during the Pre-Synopsis Seminar and recommended by the Doctoral Committee have been incorporated by Shri. Aneesh V. Pillai in this thesis. Dr. V. S. Sebastian Kochi (Research Guide) 28.6.2013 ------------------------------------------------------------------------------------------------------- Mob. 09447154620 Email: [email protected] PRPREFACEEFACE The advancements in medical science and technology have proved to be a boon to mankind. At the same time they have raised numerous challenges before the legal systems of the world. One such advancement is that of assisted human reproductive technologies and particularly surrogacy, which have given a new meaning to the concept of procreation. These technologies have made it possible for individuals to beget a genetically related child with the help of a third party and without sexual intercourse. Among all the assisted human reproductive technologies, the practice of surrogacy, in which women agree to have their bodies used to undergo a pregnancy and give birth to a baby for another, has raised various legal and human right controversies and diverse legal responses all over the world. India has particularly become a top destination for individuals who wish to beget a child through surrogacy and hence it is imperative for the Indian government to address the challenges posed by surrogacy. This study is an attempt to examine the need and importance of surrogacy practices and the conflicting legal and human rights issues raised by surrogacy in contemporary times. It also examines the adequacy of existing legal framework in India and attempts to provide pragmatic solutions for regulating surrogacy and protecting the interests of various stakeholders involved in surrogacy. In this humble effort to explore the different legal and human rights dimensions of surrogacy, various persons have helped me with their guidance, blessings and encouragement and it is my solemn duty to acknowledge their valuable contributions. At the very outset, I would like to express my sincere gratitude to my supervisor and guide Dr. V. S. Sebastian, Dean & Former Director, School of Legal Studies, Cochin University of Science and Technology, Kerala. His rich experience and keen interest in research helped me to understand the complex issues involved in surrogacy. He not only showed me the right path in doing this research but also gave me all the liberties for developing the ideas for the successful completion of this research. In spite of his hectic schedule as Director of School of Legal Studies, he i took extra-ordinary efforts to correct the draft chapters of this research, which I can never forget. Above all, words can never express my gratitude for his love, affection, care, encouragement and moral support throughout my life in CUSAT as a student and as a researcher. I am deeply indebted to my teacher Dr. D. Rajeev, Former Director, School of Legal Studies, for his constant encouragement and support right from the beginning to the completion of this research. His expertise in research methodology and zeal for perfection in editing and reviewing research articles inspired me to do my best and helped me in the framing of issues, headings and sub headings and footnoting for this research work. The credit for generating interest in human right issues goes to my teacher Dr. N. S. Soman, Director, School of Legal Studies, who not only equipped me with the knowledge in Human Rights Laws but also taught me to examine and analyze the multi-faceted dimensions of human rights issues in a right perspective. I am extremely grateful to Prof. (Dr.) A. M. Varkey, Former Director and Dean, School of Legal Studies and Dr. P.S. Seema, Assistant Professor for their valuable suggestions in improving this research work at various stages. I am also grateful to Prof. (Dr.) V. D. Sebstian, Former Dean, Faculty of Law, CUSAT and currently Adjunct Professor, KITT Law School, Bhubaneswar, Odisha; Prof. (Dr.) P. Leelakrishnan, Former Dean, Faculty of Law, CUSAT; Prof. (Dr.) G. Sadashivan Nair, Former Director, School of Legal Studies; Dr. N. S Gopalakrishnan, Director, Inter University Centre for Intellectual Property Rights Studies, CUSAT and Prof. M. Marcus, Formerly Professor of Law, Government Law College, Ernakulam for their encouragement and blessings. I am obliged to Prof. (Dr.) Sukhpal Singh, Vice-Chancellor, Hidayatullah National Law University, Raipur, Chhattisgarh for allowing me to take leave from my routine work at the Hidayatullah National Law University, for the successful completion of the course work and other related procedures. ii I would like to thank Dr. Nilamani Das, Formerly Assistant Professor (Law), HNLU and Dr. D. Anand Mennapula, Regional Deputy Director, IGNOU, Vishakhapatnam, Andhra Pradesh for their encouragement to start this research work. I would also like to thank all my colleagues in HNLU, especially Dr. Uttam Panda, Assistant Professor (Sociology); Dr. Y. Pappa Rao, Assistant Professor (Law) and Mr. Azim B. Pathan, Faculty of Law, HNLU for their encouragement and cooperation. This thesis would not have been possible without the support of Dr. Kaumudhi Challa, Assistant Professor, HNLU who showed great concern and interest in guiding me at every stage of this research. I am deeply obliged