Abstract
The paper being presented studies practice of surrogacy as a social institution with its form varying over time and critically analyzes the adaptability of law to such changes. It generally talks about the growth of commercial surrogacy overtime as an international market and in particular it provides an analytical view about how India is expanding as a leading and central destination for international surrogacy. Firstly, it views through the lens, the changing patterns of surrogacy arrangements overtime, from ancient times to modern era for is it necessary to know the root of the cause before its examination. It explains the evolution of international surrogacy as a consequence of increased globalization. Secondly, it presents a close view of the legal problems arising out of such agreements with the help of leading cases. Thirdly, it throws light on India as a centre for international surrogacy and an effort has been made to go through the reasons for which India is a suitable option for the same. Fourthly, seen through the human rights perspective with due regard to the mother and child, it presents appealing implications of surrogacy agreements mainly in Indian context, Fifthly, it tells about the much needed requirement of a legislation with regard to commercial surrogacy, and provides various steps taken in India pertaining to curtail the problems arising out of international surrogacy agreements. Lastly, some recommendations based on empirical research as well as with regard to the lacunas which are left in the proposed enactment in the Indian parliament have been provided.
Keywords: surrogacy, commercial surrogacy, international surrogacy, globalization, legal problems, implications, legislation, lacunas, recommendations
*Research paper, entitled “India: a destination for international surrogacy”
** The copyrights of this research paper is owned by Chirag Sharma, IVth semester,
BA, LLB (H), University School of Law and Legal Studies.
Introduction
In simple terms, surrogacy is a method of reproduction where a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give it to ‘someone’ who cannot have children, and that ‘someone’ may be a couple or single person. It may be in return for a payment (commercial) or without payment (altruistic). In case of a commercial surrogacy, the intending parents may also be called as commissioning parents. There are two forms of surrogacy traditional and gestational. In traditional surrogacy the egg of the surrogate mother and the sperm of the intended father or sperm donor are used and hence the child is genetically related to the surrogate mother. Since 1990 IVF (in vitro fertilization, where the female egg is fertilized outside her body with a male sperm) has provided for the gestational surrogacy to become more prominent in which the surrogate mother is not genetically related to the child and either the egg of a donor or the female half of the intending couple is fertilized by the sperm of male half of intending couple or a donor outside the body and implanted in surrogate’s womb. The legal complications in case of gestational surrogacy are more as three mothers, that is intending mother, surrogate and egg donor get involved with the child in case of a egg donated by the third party. People generally opted for such an arrangement because of infertility but now with increase in same sex marriages and single parenthood, such arrangements provide a wonderful option to get a child. International surrogacy is an advanced form of surrogacy in which the couple or single persons who are intending to be parents travel abroad which maybe because of the lesser cost of such arrangements in foreign countries or because their countries either have strict laws or do not approve of such arrangements, this practice may be simply called as ‘surrogate outsourcing’. India is one such country which attracts many foreign nationals because of the low cost and effectiveness combined with legalization and altogether absence of any law pertaining to the matter. Commercial and International surrogacy practices in India are linked with the exploitation of the poor women and various legal consequences. Even the proposed enactments lack many technicalities to that effect.
Surrogacy-changing patterns over time
“Any sufficiently advanced technology is indistinguishable from magic”
—Arthur C .Clarke
The practice of surrogacy is even referred to in antiquity. Babylonian law and custom allowed this practice and thus giving an option to the infertile women to avoid an inevitable divorce. “Mythological surrogate mothers are well known in India too. Yashoda played mother to Krishna although Devki and Vasudeva were biological parents. Likewise, in Indian mythology Gandhari made Dhritrashtra the proud father of 100 children, although he had no biological relationship to them”[1]. All these practices were an example of altruistic surrogacy. With advancement of technology and developments in fields of medicine, social customs, law etc. modern commercial surrogacy came into practice. The landmark achievement in this field came in 1978 with the birth of first ever test tube baby, Louise Brown, who was the product of first successful in vitro fertilization (IVF) procedure. Since then the practice of commercial surrogacy has been on a constant rise so much, so that the exact estimate of children born out of such arrangements, on a world scale, today is almost an impossible task. With advancement in the field of Information Technology and increasing efficiency of the internet, globalization is becoming more prominent. The time has come where we can sit back at our home in India and engage in video chat with our friend in USA, the time has come where most of the transactions pertaining to day to day activities can easily be done via internet and the time has come where the couple intending to become parents are looking forward to take advantage of these same processes which has given rise to surrogacy transcending the national borders.
International Surrogacy is becoming a constantly growing industry since the beginning of the 21st century and has witnessed a crystal clear boom because of varying approaches of different nations on the issue. For example surrogacy and commercial surrogacy arrangements are illegal in most European countries and hence many European intending parents often prefer United States for commercialized surrogacy agreements. Within the United States even different states have different laws in relation to surrogacy, implying that even American intending parents regularly travel outside their home states to surrogacy friendly jurisdictions of California and Florida in order to complete surrogacy arrangements.[2]
Unforeseen legal consequences of international surrogacy
International Surrogacy arrangements are often followed by various legal hurdles about which the couples, who are willing to be commissioning parents, are unaware of. The desire to have their own children has the effect of ignorance of stringent international norms by such parents which is often fuelled by the practice of agencies, facilitating international surrogacy, which encourage couples to ignore laws implemented in their own countries and downplay
the risk of their parental rights to the child that results. This often leads to number of legal conflicts which renders the children born of international surrogacy both stateless and parentless because different jurisdictions have different approach to this task. Adoption seems to be an obvious solution to this problem but there are many requirements like bar on the knowledge of the mother and payment in case of an international adoption which render the option of adoption as ineffective.
This can be better explained by various landmark cases which exhibit the difficulties arising out of international surrogacy where the parenthood and statehood of the child born out of the arrangement was in question.
In The Jan Balaz Case[3], the commissioning parents, namely Mr. and Mrs. Balaz, were from Germany. They hired for a surrogate mother in India and for this purpose a donated egg and the father’s sperm was used. The children born were twins. The name of the Balaz was put as parents name on the birth certificate. The real problem arose when the children were refused citizenship of Germany as surrogacy is illegal in Germany. They were even refused to be granted Indian passports as the name on the birth certificate was of Balaz and to resolve this problem, the name of mother on the birth certificate had to be changed to that of the surrogate as she was an Indian to satisfy the condition of at least one Indian parent for the grant of an Indian passport and then only they were granted Indian passports. The problem didn’t end here as the Indian Ministry of External affairs seized the twins’ passports. The matter, eventually, went on to the High Court which opined that both the children were Indian as they were born to an Indian mother and on Indian soil. But the passport authority still refused to give back the passports and thus the matter went on to the Supreme Court of India, the apex court. The court suggested that adoption must be an appropriate remedy for the same but the possibility was warded off due to many obstacles arising out of the rules for inter country adoption, like the bar on the knowledge of the mother, absence of contract etc. The court even asked Central Adoption Agency to reconsider it’s jurisdiction but before it could happen the twins were issued German visas prior to a condition that they would be adopted in Germany under German laws and then only the couple could take back the children to Germany.
In Baby Manji Case[4], The commissioning parents were from Japan and a child namely Baby Manji was born to them via surrogacy with an Indian surrogate mother and a donated egg. But before the birth of the child the couple took divorce and thus the name of only the father (Mr. Yamada) was put on the birth certificate of the child. The couple wanted to take back the child to Japan but there was a condition put on them that before they could take the child to Japan, they should adopt the child in conformation with the Indian and Japanese law and required that the child be granted an Indian passport. While they were collecting the relevant documents for the same, a petition was filed in Rajasthan High Court by Satya, an NGO which contended that the clinic where the child was born deals in illegal trading in infants. It further argued that since there was no surrogacy law in India, no one, not even Mr. Yamada could claim parentage to the child. Convinced by this, the court ordered that Manji be brought to them within a month. In reply to this, Mr. Yamada’s mother filed a writ petition in the Supreme Court of India on the baby’s behalf. The Supreme Court opined that the committee formed under Protection of Children Act, 2005 but not the High Court was the appropriate jurisdiction for the NGO to file the complaint. The court issued Baby Manji with a certificate of identity and said that commercial surrogacy was legal in India. Subsequently the child was granted a Japanese visa for one by the Japanese Embassy on humanitarian grounds. Finally, the child could be taken back to Japan.
In The Canadian Twins Case[5] a boy and a girl were born to commissioning parents from Canada. The birth took place in India in 2006 and the couple applied for proof of Canadian citizenship. The problem arose when the DNA tests confirmed that the couple’s baby girl was the genetic daughter of the commissioning father but the boy was not, suggesting a mix up at the clinic. The law in Canada is that the surrogate children are granted Canadian citizenship only when the children have genetic link to one of the parent. The Canadian authorities were not able to deal with the situation until 2011 when a citizen card was issued to the twin girl and travel papers to the boy. Finally, in Canada the boy was granted a Canadian citizenship on humanitarian grounds.
In The Goldberg Twins Case[6] a gay couple from Israel gave birth to twin boys through surrogacy but the Jerusalem family court refused to allow for a paternity test to initiate the process for gaining Israeli citizenship for the twins as Israel doesn’t allow gay couples to be parents under surrogacy arrangements. Finally after the issue was debated in Israeli Parliament, the case was presented before Jerusalem District Court where the interest of the children was given primacy and the paternity test was allowed which confirmed that Mr. Goldberg was the father of the boys after which Israeli passports were given to the twins.
The above cases reveal that international surrogacy contracts are often ineffective in guaranteeing parenthood or statehood to the child and absence of any regulations makes the condition even worse.
India—the best option attracting foreign commissioning parents
MUMBAI: On December 1, actor Aamir Khan and his filmmaker-wife, Kiran Rao welcomed their first-born son-but with a classy difference. The couple, in an openness that is rare in the Indian society, announced that their son was born through surrogacy using the IVF (in-vitro fertilization) technique[7]
AHMEDABAD: Canadian businesswoman from Toronto, Lisa Parker, 38, became a mother of two recently within a gap of just one month! After four miscarriages and four failed in vitro fertilization (IVF) cycles, she opted for two surrogate mothers instead of one to improve her chances of becoming a parent as quickly as possible. It worked. Both surrogates delivered what experts call not twins, not siblings – but ‘twiblings’. Lisa is among a growing breed of childless foreigners and NRIs who come to India and employ two surrogates to increase chances of finally having their own child.[8]
MUMBAI: Bollywood star Shah Rukh Khan announced on Tuesday, July 9, 2013 that he and wife Gauri were parents of a baby boy born with a surrogate.[9]
The above mentioned news articles go on to support the view that there is, legally, a full hearted reception to surrogacy arrangements in India. From bollywood actors, setting a trend, to the foreign nationals, fulfilling a need, all are reaping the benefits of India being a perfect destination to get a child via commercial surrogacy.
In past few years India has highly emerged as destination for international surrogacy. India’s first surrogate baby was born on June 23rd 1994 but the market received an impetus for its growth from 2002 when the Supreme Court, the apex court legalized commercial surrogacy in India. The Indian reproductive tourism industry is now worth an estimate USD 500 million, with over 200,000 clinics operated around the country[10]. The most important reason for rise of India as the most favoured option for surrogacy is the low cost involved with total cost including compensation to surrogate, medical procedures, travelling amounting to USD 25000[11].which is about one third compared to United States and much less than other countries. Moreover, Indian surrogacy clinics have become more professional not only in providing medical procedure but also in hiring ‘mothers who are willing to be surrogate’ .One such example is Akanksha Infertility Clinic in the state of Anand (in Gujrat) which is the epicenter of the surrogacy industry in India and has almost 350 willing surrogates listed and the couple are charged $25,000 to $30,000 and the surrogates are paid around $6500 (INR 400,000). The sole reason for surrogacy being such a low cost practice in India is that most of the surrogates in India are from BPL (Below Poverty Line) families. Smita Pandey, one of the surrogates believes that the money received has helped her in building a house. Dr Nayna Patel who runs Akanksha Infertility Clinic said that “surrogacy needs to be respected as a profession as 75% women who opt for surrogacy have unemployed husbands”[12]. The Pune Fertility Centre in Shivajinagar recently announced a ‘surrogacy programme’ and invited ‘women in the 25-30 years age group’ to enroll as members.[13]
Moreover the surrogacy laws in India are more lenient as compared to those in other countries. While in Australia, commercial surrogacy is illegal; in France both altruistic as well as commercial surrogacy is illegal. In India surrogacy is legal in all its forms and the surrogacy contract is guided by the ART (Assisted Reproductive Technology) guidelines, 2005 issued by ICMR and the validity of a surrogacy agreement is governed by The Indian Contract Act of 1872, the codified law is yet to be enacted. The revised ART (regulation) Bill, 2010 put forward by Indian Council for Medical Research (ICMR) which seeks to formulate a codified law is still pending in the parliament for approval. The other reason may be that the staff in India is skilled in spoken and written English and thus making it easy for the foreign nationals to enter into transactions. Further, most of the women in India especially from poor background are not habitual of smoking, drinking and drugs and thus safeguarding the health of the child.
Commercial surrogacy and human rights
The Indian context
Legal reception being there, has the dogmatic Indian society provided reception to commercial surrogacy or is it just a way to acquire a so called ‘decent’ lifestyle?
“In a war, the strong make slaves of the weak, and in peace the rich makes slaves of the poor”
— Oscar Wilde
“I would suggest that a feminism which does not also seek to alter the exploitation of poorer women is not feminism at all, but is simply a variant of upper class politics and self privileging.”
— Jack Forbes
“Premila Vaghela, a poor 30 year old Indian surrogate mother, died last month, while reportedly waiting for a routine examination at a hospital in Ahmedabad. The news was barely covered by the media- after all, she had completed the task she had been contracted for, and the eight month old foetus meant for an American “commissioning” parent survived.”[14]
Paradoxical as it may sound but “renting a womb in India has become a relief out of duress for the poor illiterate women” especially when it comes to providing wombs to intending parents from outside India who are willing to pay as much as three times of what they pay in their own country. There are two views regarding the practice of commercial surrogacy. First, the liberal feminist view which advocates freedom of women and sees surrogacy as a natural extension of women’s reproductive liberty and personal autonomy. Second is the socialist feminist principle of equity and fairness which regards it as potentially exploitative given the lack of economic opportunities to the surrogate. The question now arises that with what view should the Indian scenario be assessed, the liberal view or the socialist view?. According to World Health Organization statistics Maternal Mortality Rate (MMR), or the number of women who die while pregnant or within 42 days of termination of pregnancy, in India is 200 for every 100,000 child births while that of US is just 21 for every 100,000 child births. It is highly insensitive that a country in which MMR is so high is in support of the commercial surrogacy without any legislation and provides for the best international market for the same. Moreover the female literacy rate, according to UNDP (United Nations Development Programme), is just 53.4 percent and the per capita income in India is just INR 46,492(Economic times, 2011). These stats are highly reflective of the fact that the surrogates in India provide services for financial needs and most of them are too uneducated to understand the contract they enter into. The supporters of the liberal view say that it is for the betterment of the lifestyles of poor families to which surrogates belong that such services should be appreciated but they are often ignorant of the fact that in India, which is a patriarchal society, the matters related to pregnancy are of very sensitive nature and there is a taboo attached with the practice of surrogacy where one woman bears a child for another couple which in Indian context is viewed as a child of another man and if the same is done for money then a the character of that woman is often doubted. Though there might be a legal reception to such a practice in India but the social acceptance in most parts is still lacking. With due regard to social stigmas existing in India there even might be a possibility that such agreements are forcefully entered into by the surrogates on repeated stress given by their jobless or low earning husband or extra- demanding in laws. So my contention is that in India when a woman gets into such contract, then it is more of a compulsion than being a free consent and hence there is a more weight on the socialist side of the feminist view than on the liberal one which is a governing view for the western countries. It is to be noted that the preamble to UDHR (Universal Declaration of Human Rights) talks about human dignity but very use of woman as merely a commodity, which is true to the utmost extent in case of Indian women, for producing babies is a gross violation of Human Right to Dignity.
With regard to children born out of such arrangements my contention is in many cases like the Baby Manji case as discussed earlier the children suffered from statelessness which is again in violation of article 15(1) of UDHR which guarantees Right to Nationality to all.
India: striving for commensurate law on commercial surrogacy
There are many problems which arise out of commercial surrogacy arrangements and these problems are magnified when it comes to international surrogacy. The legal problems have already been discussed earlier. Talking about the moral aspect such arrangements may be compared to a ledger where on the positive side, we have to put the value of monetary compensation, whatever psychological gratification the surrogate obtains from bringing a child into the world, and the happiness that she has brought to the intended parents. There is much that might appear on the debit side of the ledger which includes the pain she suffers when she parts with the child she has kept in her womb for months, the health risks which she faces from pregnancy, restraints on her choice of freedom as a surrogacy contract may stipulate that surrogate has to refrain from certain activities which curtail her freedom[15]. It is a kind of mutually advantageous exploitation in which “the interests of the wealthy contracting couples are better served than those of the surrogates”[16]. There are other practical problems which may arise out of such contracts which include problems like unwanted birth of twins as had happened in case of Susan Ring who had been a surrogate mother for eight babies but this time the commissioning parents for whom she was supposed to deliver the children divorced and refused to accept the twin babies and thus the surrogate mother had to take the children with her and give them her own name and thus she became legal mother of the children she was not biologically related to. This eventually led to many financial problems for her[17].
With the abovementioned problems in view and moving on with our focus on India as a leading centre for fertility tourism it shall be noted that India lacks any enacted legislation on surrogacy in any of its forms. Though there are guidelines which have been provided by Indian Council for Medical Research (ICMR), which is the apex body for formulation, coordination and promotion of biomedical research, which is chaired by the Union minister for health and family welfare. Chapter three of the guideline defines surrogacy as an arrangement in which a woman agrees to carry a pregnancy that is genetically unrelated to her and her husband, with the intention to carry it and hand over the child to the commissioning parents and thus recognizes surrogacy as a valid mode of bypassing pain of infertility for a couple. The guidelines require the biological parents to undergo diagnosis for the cause of infertility with an undertaking to the effect that their infertility is incurable and thus they are opting for surrogacy. The surrogate mother is also required to submit the same undertaking. Further, state accreditation authorities are also needed to be set up by respective state governments through their health departments to oversee matters relating to surrogacy. These guidelines are binding on all private practitioners in the country who are dealing in ART.[18] There were many issues which were not covered by these guidelines like those relating to same sex couples opting for surrogacy, foreign nationals and NRI’s seeking Indian surrogate mothers, couples opting for surrogacy due to lifestyle issues and many other issues related to exploitation of surrogate mothers were left untouched. This tempted ICMR to present a bill namely ART (regulation) bill, 2008 which sought to “provide national framework for the regulation and supervision of ART”. Further, the bill recommended the formation of a national advisory board under the central government to administer its clauses.[19] The bill was regulated in 2010 and ART (regulation) bill, 2010 was presented which addressed the citizenship issue and provided that a baby born to foreign nationals through the Indian surrogate will not be considered and Indian citizen. Though the child may get an Indian citizenship in case the child is abandoned by the commissioning parents and if they fail to take custody of the child within a month of his birth then the Indian Local guardian who has been appointed for the child under the Bill would be free to put the child for adoption. The bill also provides that a child is born to an unmarried couple through use of ART — with the consent of both the parties — will be their legitimate child and the same thing applies to single parents too. The bill further provides that in case of separation or divorce of unmarried or married couple before the birth of child and after the consent of both parties to the ART treatment, the child will be their legitimate offspring.[20]
Regarding single foreign nationals intending to be parents via surrogacy there are still divergent views. The two most important union ministries, the Ministry of Home Affairs (MHA) and the Ministry for Health and Family Welfare (MoHFW) have opposing views on the issue. MHA in an order dated 30 october, 2013 opined that the use of tourist visas for the purpose of surrogacy is a violation of visa conditions as medical visa and not the tourist visa is a proper category for such purposes. It further puts a condition that a couple opting for medical visa for such purpose should have a valid marriage sustained for a period of two years provided with a letter by the embassy of such country stating that surrogacy is valid in the country. On the other hand ICMR which is a part of MoHFW has presented that a Draft Assisted Reproductive Technology (Regulation) Bill-2013 contains the provisions for surrogacy of single person and for this purpose Assisted Reproductive Technology (Regulation) Bill-2010 has been revised based on the recommendations of the Ministry of Law & Justice. It is to be noted that the finalized ART(regulation) bill, 2013 is yet to be presented.[21] The differing view came before Punjab and Haryana High Court during the hearing of a plea filed by Sudanese national against the Indian Laws of single foreign parents opting for surrogacy.
The gist of the view as discussed above is that India still lacks any regulation with regard to the practice of surrogacy though many steps have been taken to that effect.
Analysis of the proposed enactment in India
–Some recommendations
“It is not the strongest of the species that survives, nor the most intelligent that survives, it is the one that is the most adaptable to change”
—Charles Darwin
The above quote is much prevalent in the field of Biology. It could be very handy if we compare it with the field of law. The modified version of the quote can thus be put as-
“ It is not the strictest of the law that survives the most, nor the most innovative one. It is the one that is most adaptable to change”
It is accepted that the Indian government is considering the enactment of a new law which is per se at terms with the contemporary realities. It is of utmost importance to mention here that unlike India, surrogate motherhood is completely banned in countries like Sweden, Spain, France and Germany and other countries like Britain, South Africa and Argentina have an independent ethics committee to evaluate surrogacy requests on a case-by-case basis.
An outright ban on national commercial surrogacy practices would have led many Indian couples to look overseas for fulfilling their desire of having children as has happened in case of New Zealand where the ban on commercial surrogacy has led to an increase in number of couple looking overseas, particularly Thailand which is reflected in the statistics available in Immigration New Zealand which show that 18 such children were brought back into the country between 2010 and 2012.[22] Similarly, a ban on international commercial surrogacy would have led to black marketing instead. It is of no doubt that the manner in which problems have been viewed is a distinguished one. But there are many lacunae left in the proposed enactment ART (regulation) bill 2010 which, if covered under the draft ART (regulation) bill 2013 which is still not finalized to be proposed, would render the enactment one of the most commendable pieces of legislation if approved. It is to be noted here that the 2013 bill is still open for the recommendations by the ministries.
One of the most visible lacunae in the ART regulation bill 2010 is the absence of any court to address the issues arising out of surrogacy agreements. The bill talks about procedures for registration of complaints in case of ART, it talks about duties of the parties concerned including the duties of the clinics, it also talks about offences and punishments but there is no judicial forum or court designated for the purpose. The absence of any court of law for the purpose would also lead to problems related to disputed parentage, citizenship, grant of visas etc. as there will be no body to decide on these issues. Hence it is highly recommended that the Draft ART (regulation) bill 2013 should specifically focus on this issue before its finalization.
There should also be much focus upon the rights of the surrogate and she should not be subject to restraints as to her lifestyle, eating habits etc. as it is a clear cut violation of fundamental right to freedom as guaranteed by article 21 of the Constitution of India and also to the section 23 of the Indian Contract Act,1872 for being against public policy as curtailing the freedom of a person is against it. Further there is also no heed paid to various questions like are the children appropriate subjects to be dealt as plant, sell and purchase items? , Is the consent of the women, who enter into a surrogacy contract, free or is it unduly influenced by the conditions they are subjected to?[23] It is highly recommended that such questions should be addressed and the interests and freedom of the surrogate should be given primacy.
Further, there is nothing in the bill which talks about the health risks which are attached with pregnancy especially through the IVF procedure. There are no standards set for the clinics which are the third party agents in recruiting surrogates and providing legal and medical assistance to foreign couples. The license for IVF practices should be given to only standardized clinics and it should be made mandatory for such clinics to advertise the risks attached with pregnancy. The bill should permit genetic surrogacy as the first option. Genetic or traditional surrogacy is a procedure by which a mother gets artificially inseminated by the sperm of father. This procedure is much simpler and efficient as there are only two mothers involved in this procedure unlike the gestational surrogacy or IVF in which three mothers get involved with the child. Moreover there is nothing in the bill which clearly mentions the status of the sperm donors or the egg donor in the case of gestational surrogacy or IVF. The bill should clearly address such issues.
Conclusion
Technology has almost intervened in every sphere of our lifestyles. It has also laid its roots in international commercial surrogacy and has made it more convenient for people living in one part of the world to finalize a contract with a surrogate in the other part of the world. But the practice also raises many legal questions ranging from parentage and statehood of the children born out of such arrangements to those pertaining to the rights of the surrogate and the intending parents. The major challenge for authorities and courts faced with international surrogacy cases is ensuring the welfare of the children born via surrogacy respecting their countries’ laws. While the commonwealth courts like those of India and UK lay emphasis on the paramount interest of the child, the courts in the states like France, Australia lay more emphasis on the laws. India has become a booming market for such commerce as it has highly ideal conditions which render it almost perfect for such agreements. Such conditions include the low price in which a surrogate can be arranged in India combined with an altogether absence of any law for the cause. India presents a more complex situation as surrogacy in India is linked with BPL (Below Poverty Line) exploitation. Given the dogmas present in Indian society, there is an ethical aspect which time and again questions the acceptance of such practices in India. The proposed enactments have also been time and again questioned for being lopsided in their approach and being much detrimental to the interest of surrogate mothers. The proposed enactment also lacks any procedure for the resolution of the disputes arising out of such agreements for there is no mention of any judicial forum or court to address such issues. There is a dire necessity of filling these gaps and enacting a law which regulates the practice to save the parties to such agreements from legal tussles and most importantly the surrogates from the clutches of exploitation.
[1] Anil Malhotra and Ranjit Malhotra, All aboard for the fertility express, 38 commonwealth law bulletin 31, 31 (2012)
[2] Prof Mark Henaghan, International Surrogacy Trends: How family law is coping?, 7 Australian journal of adoption 3, 2 (2013)
[3] Jan Balaz v Anand Municipality, (2009) 2151 LPA
[4] Baby Manji Yamada v Union of India and Another (2008) 13 SCC 518.
[5] Raveena Aulakh After Six Years and Fertility Mix-up, Surrogate Twin Can Come Home The
Star (online ed, Canada), May 5, 2011
[6] Anil Malhotra and Ranjit Malhotra All aboard for the Fertility Express, 38 Commonwealth Law Bulletin 31, 33 (2012)
[7] Bharti Dubey and Malathi Iyer, Aamir Khan and Kiran Rao get a son through IVF surrogacy, (dec 6, 2011) http://articles.timesofindia.indiatimes.com/2011-12-06/news-interviews/30481131_1_surrogacy-infertile-couples-kiran-rao
[8] Radha Sharma, surrogacy gives birth to twiblings, (April 20, 2012) http://articles.timesofindia.indiatimes.com/2012-04-20/ahmedabad/31373316_1_surrogate-mothers-surrogacy-childless-couples
[9] Shilpa Jamkhandikar, Shahrukh khan welocomes new surrogate baby AbRam, (Jul 9, 2013) http://in.reuters.com/article/2013/07/09/shah-rukh-khan-surrogate-baby-idINDEE9680B020130709
[10] Anil Malhotra and Ranjit Malhotra All Aboard For the Fertility Express 38 Commonwealth Law Bulletin 31, at 31 (2012)
[11] Amelia Gentleman Foreign Couples Turn to India for Surrogate Mothers The New York Times (online ed.) March 4 2008
[12] Wombs for rent, Is paying the poor to have children wrong when both sides reap such benefits? http://www.feministezine.com/feminist/international/Wombs-for-Rent.html
[13] Mata Press Service, Wombs for rent in a hamlet of hope, (Mar 9,2006), http://www.allaboutsurrogacy.com/forums/index.php?showtopic=17549
[14] Kishwar Desai, India’s surrogate mothers are risking their lives, they urgently need protection, (June 5, 2012), http://www.theguardian.com/commentisfree/2012/jun/05/india-surrogates-impoverished-die
[15] ALLAN WERTHEIMER, EXPLOITATION 96- 106 (2d printing, Princeton University Press,1999)
[16] M Steven Baby M and the surrogate motherhood controversy 1013 American University Law Review 1024, 1024 (1987)
[17] Jane Meridith Adams, one pregnancy, four mothers, two fathers, and an army of lawyers, http://www.oprah.com/spirit/What-It-Feels-Like-to-be-a-Surrogate-Mother/5
[18] National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, http://icmr.nic.in/art/art_clinics.htm
[19] ART(regulation) bill, 2008, http://criticalstew.org/wp-content/uploads/draft-art-regulation-bill-rules-2008-2.pdf
[20] ART(regulation) bill, 2010, http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf
[21] Ajay Sura, Minsiteries differ on single surrogacy,(Nov 2 2013) http://articles.timesofindia.indiatimes.com/2013-11-02/chandigarh/43611196_1_surrogacy-medical-visa-anil-malhotra
[22] Martin Johnston A Different Answer to That Question New Zealand Herald (online ed.)
November 3, 2010
[23] Since India lacks any law related to the practice of surrogacy, a surrogacy contract is governed by the Indian Contract Act, 1872. A surrogacy contract may stipulate that a surrogate has to eat, live, restrain form certain acts, etc.