Surrogacy Law in India

LE-1 Assignment

Analysing the status of the Surrogate Mother under
The Assisted Reproductive Technologies (Regulation)
Bill, 2010

Under the Guidance of:Prof. Asmita Vyas
SECTION B
GROUP 4
Anish Nair (P35115)
Deepika Yadav (P35121)
Haritha S.K. (P35130)
Harshal Chadha (P35131)
Kanak (P35139)

Contents
KEY TERMS............................................................................................................. 3
DEFINITION............................................................................................................ 4
TYPES..................................................................................................................... 4
On the basis of scientific method applied...........................................................4
Traditional Surrogacy....................................................................................... 4
Gestational Surrogacy..................................................................................... 4
On the basis of value it holds............................................................................. 4
Altruistic surrogacy.......................................................................................... 4
Commercial surrogacy..................................................................................... 4
HISTORY................................................................................................................. 5
World View.......................................................................................................... 5
Countries where both commercial and altruistic surrogacy is allowed by law. 5
Countries where only altruistic surrogacy is allowed by law............................5
Countries where all kinds of surrogacy are banned by law..............................5
Indian Scenario................................................................................................... 6
Womb on rent..................................................................................................... 6
THE ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION) BILL, 2010...........7
WHO CAN OPT FOR SURROGACY...........................................................................7
RIGHTS AND DUTIES OF VARIOUS ACTORS (INTENDED PARENTS AND SURROGATE
MOTHER) IN RELATION TO SURROGACY.................................................................8
SURROGATE MOTHER............................................................................................ 9
PROFILE OF AN INDIAN SURROGATE MOTHER.......................................................9
RIGHTS OF A SURROGATE MOTHER.....................................................................10
DUTIES OF A SURROGATE MOTHER.....................................................................10
OFFENCE AND PENALTIES.................................................................................... 11
CURRENT STATUS OF THE BILL (AMENDMENTS)..................................................12
CASE: BABY MANJI YAMADA V/S UNION OF INDIA.................................................13
Case Facts........................................................................................................ 13
Final Verdict...................................................................................................... 13
THE OTHER SIDE OF SURROGACY........................................................................14
India portrayed as a market for ‘Rent-a-womb’................................................14
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Shadier side of commercial surrogacy..............................................................14
Increasing fraudulent cases.............................................................................. 15
Case of pramila vaghela................................................................................... 15
ANAND: INDIA’S SURROGACY CAPITAL.................................................................16
WHAT NEXT?........................................................................................................ 16
REFERENCES........................................................................................................ 18
ANNEXURE 1........................................................................................................ 19
FORM – J : Agreement for Surrogacy.................................................................19
ANNEXURE 2........................................................................................................ 22

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KEY TERMS
The definitions of key terms related to the Assisted Reproductive Technology (Regulation)
Bill, 2010 are as following:
a) Artificial insemination: The process of transferring semen artificially into the
reproductive system of a woman. It can be done with husband’s semen or with donor
semen.
b) Assisted Reproductive Technology (ART): All techniques that try to attain a
pregnancy by treatment or manipulation of the sperm or of the oocyte outside the
human body, and transferring the gamete into the uterus.
c) Assisted reproductive technology clinic: Premises used for events related to the
ART.
d) Couple: People cohabiting and having a sexual relationship which is legal in their
native or presently resided country.
e) Cryo-preservation: The storing and freezing of embryos, gametes and zygotes.
f) Donor: The donor of a gamete or gametes excluding the husband who gives the
sperm or the wife who gives the oocyte to be used in the ART process.
g) Embryo: The fertilized ovum.
h) Fertilization: The penetration of the ovum by the spermatozoon and union of genetic
materials leading to the growth of a zygote.
i) Foetus: The product of fertilization, which starts from the completion of embryonic
development until birth or abortion;
j) Gamete: Sperm and Oocyte.
k) Gamete donor: An individual who gives sperm or oocyte with the purpose of
enabling an infertile couple or an individual to have a child.
l) Implantation: The Attachment and following penetration by the zona-free blastocyst,
which starts 5 to 7 days following fertilization.
m) Oocyte: Female gamete present in the ovary.
n) Ovum: An ovulated oocyte in which the release of the first polar body has taken
place.
o) Surrogacy: An agreement in which a woman consents to a pregnancy achieved
through ART process, in which none of the gametes belong to her or her husband,
with the intention to carry it to the full term and to deliver the child to its biological
parent.
p) Surrogate mother: A woman who has consented to have an embryo produced from
the sperm of a man excluding her husband and the oocyte of the other woman,
implanted in her to carry the full term pregnancy and to deliver the child to its
biological parent.
q) Surrogacy agreement: An agreement between the person(s) using the assisted
reproductive technology and the surrogate mother.
r) Zygote: The fertilized oocyte before to the first cell division.
(ICMR)

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DEFINITION
Surrogacy is the union of science, society, services and person that make it a reality.
Surrogacy leads to a win-win situation for both the infertile couple and the surrogate mother.
The infertile couple is able to fulfill their most important desire and the surrogate mother
receives the suitable reward
Under the assisted reproductive technology regulation, “Surrogacy is an arrangement in
which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in
which neither of the gametes belong to her or her husband, with the intention to carry it and
hand over the child to the person or persons for whom she is acting as a surrogate.”
The word “surrogate” comes from Latin “subrogare”, means “appointed to act in the place
of”.

TYPES
Surrogacy can be divided by two classifications:On the basis of scientific method applied
Traditional Surrogacy
 The surrogate mother is impregnated naturally or artificially, but the resulting
child is genetically related to the surrogate mother.
 A traditional surrogate is the baby’s biological mother since the child was
conceived from the union of her egg and the father’s sperm.
 Also known as the Straight method
Gestational Surrogacy
 The pregnancy results from the transfer of an embryo created by in-vitro
fertilization (IVF), in a manner so the resulting child is genetically unrelated to
the surrogate. Gestational surrogate mothers are also referred to as gestational
carriers.
 Also known as the Host method
 Surrogate mother is not the biological mother
On the basis of value it holds
Altruistic surrogacy
 Surrogate receives no financial reward
 Surrogacy arrangements are supervised by a special committee that approves
surrogacy contracts only if persuaded that all the parties have reached the
agreement freely and that the health of the mother and the baby are not at risk. The
surrogate can be paid only for legal and insurance expenses and compensated for
her time, loss of income and pain.

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Commercial surrogacy
 Surrogate is paid to carry a child to maturity in her womb by the intended parents.
 The surrogate is paid for her gestational “services.”
 Commercial surrogacy is sometimes referred by terms as "wombs for rent",
"outsourced pregnancies" or "baby farms".

HISTORY
World View
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1930s – Mass production of estrogen began.
1944 – Human ova was fertilized outside the uterus for the first time.
1953 – First cryopreservation of sperm was performed.
1971 – First sperm bank, a highly profitable venture, was opened in New York
1978 – First test tube baby was born. (Using IVF Method)
1980 – First Surrogacy contract was formed in State of Michigan, USA
1985 – First successful gestational surrogate pregnancy was carried out.
1986 – World’s first surrogate baby, Baby M, was born in USA.

Countries where both commercial and altruistic surrogacy is allowed by law
Russian Federation, Ukraine, Belarus, Georgia, Armenia, Cyprus, India, South Africa,
United States (Arkansas, California, Florida, Illinois, Texas, Massachusetts, Vermont)
Countries where only altruistic surrogacy is allowed by law
Australia, Canada (except Quebec), United Kingdom, Netherlands, Denmark,
Hungary, Israel, United States (New York, New Jersey, New Mexico, Nebraska,
Virginia, Oregon, Washington)
Countries where all kinds of surrogacy are banned by law
Germany, France, Belgium, Spain, Italy, Switzerland, Austria, Norway, Sweden,
Iceland, Estonia, Moldova, Turkey, Saudi Arabia, Pakistan, China, Japan, Canada
(Quebec), United States (Arizona, Michigan, Indiana, North Dakota)

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Indian Scenario
After the birth of the first scientifically well documented test tube baby in 1986 in
India, there was mushrooming of IVF clinics in the country. This also led to creation
of the first draft on Surrogacy regulations, known as Assisted Reproductive
Technologies Regulation. Commercial surrogacy became legal in India since 2002.
Although the Indian Council of Medical Research (ICMR), under the Indian Ministry
of Health and Family Welfare(MoHFW), issued voluntary guidelines for Assisted
Reproductive Technologies clinics in 2002 and updated them in 2005, but these
guidelines were not binding.
India is also emerging as a leader in international surrogacy because of the following
few reasons:
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Favorable legal environment.
Relatively low cost.
Available medical infrastructure
High international demand
Ready availability of low income population.

As per a survey conducted by National mission for Women and National Human
Rights commission, following were the responses of doctors and general public:

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Womb on rent
To give a womb for rent means to nurture the fertilized egg of another couple in your
womb and give birth to the child with a specific intention, the intention here being
either money, or service, or because of altruistic reasons.
The approximate average costs of surrogacy in different countries as per international
standards:
US - $100,000 (£60,000)
India - $47,350 (Approx. INR 30 Lacs)
Thailand - $52,000
Ukraine - $49,950
Georgia - $49,950
Mexico - $45,000
But as per a recent report released by Times of India, surrogate mothers in India are paid only
around Rs 3,000 per month (while the surrogate is carrying the baby) and Rs 2 lakh postdelivery. There’s a sharp disparity in the international standard pricing followed worldwide
and the pricing model actually being followed in India.

THE ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION)
BILL, 2010
Surrogacy in India is continuing to grow rapidly; the proposed law to regulate it continues to
remain in incipient stages. The guidelines on surrogacy framed by the Indian Council of
Medical Research (ICMR) in 2002 and 2005 do not have legal sanctity and are not binding.
In 2008, an initial attempt was made by ICMR, under the Indian Ministry of Health and
Family Welfare (MoHFW), to formulate a comprehensive bill to regulate arts and surrogacy
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contracts. It was named "The Assisted Reproductive Technologies (Regulation) Bill, 2008",
but this bill faced criticism regarding the inadequacy to promote the rights of the women and
children.
In 2010, ICMR again came out with "The Assisted Reproductive Technologies (Regulation)
Bill and Rules, 2010" to battle with the earlier criticism.
The present ART Bill, 2010 is yet to materialise into a much required obligatory official
regulatory instrument and is still undergoing debate among ministries. There has been a long
delay in legislation for regulating an industry that has been booming for almost 13 years. Still
after seven years after the first draft in 2008, legislation of the bill looks like a distant dream.
The report will try to look at various aspects like rights and duties of various actors in a
surrogacy agreement according to the ART Bill, 2010. The aim of this report is to analyse the
status of surrogate mother through the bill.

WHO CAN OPT FOR SURROGACY
According to the ART Bill, 2010 following couples or individuals can opt for surrogacy:
a) Infertile Married heterosexual couples or unmarried heterosexual couples can opt for
surrogacy. Infertile couples are categorized into 3 groups;
o With single defect in one of the partners,
o With multiple defects in one or both the partners,
o No evident defect in either partner (unexplained infertility).
Basic investigations on the cause of infertility are carried out. The investigations
should comprise of the following:
 Husband
o Physical examination, both systemic and local,
o Detailed semen analysis
 Wife
o Physical examination, both systemic and local,
o Ovulation detection and timing of by appropriate tests like ultrasonography, cervical mucus studies, premenstrual endometrial biopsy
etc.
b) When commissioning mother is incapable of carrying a baby to a full term, then also
she is eligible to opt for surrogacy.
c) Single commissioning persons (male or female) can opt for surrogacy if they are able
to prove infertility or prove inability to carry a baby to full term (in case of a single
female).
According to the Act, homosexual couples living together and who are Indian citizens, would
not be recognized as commissioning couples when both apply together. A couple or an
individual cannot undertake the service of more than one surrogate at any given time. Also, a
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couple cannot have simultaneous transfer of embryos in the woman (opting for surrogacy)
and in a surrogate.

RIGHTS AND DUTIES OF VARIOUS ACTORS (INTENDED PARENTS
AND SURROGATE MOTHER) IN RELATION TO SURROGACY
a) Intended parents can obtain the service of a surrogate only through a registered ART
bank.
b) Intended parents seeking surrogacy will have to enter into a surrogacy agreement
which shall be legally enforceable.
c) All expenses, insurance if available of the surrogate related to pregnancy, during
pregnancy and after delivery, and till the child is ready to be delivered shall be borne
by intended parents.
d) The surrogate mother may also receive monetary compensation from the couple or
individual. (Surrogacy can be altruistic or commercial as per the wish of the surrogate
mother).
e) The intended parents shall be legally bound to accept the custody of the child /
children, irrespective of any abnormality that the child / children may have, and the
refusal to do so will be an offence under the Act.
f) A foreigner or foreign couple who are not the residents of India or a NRI individual or
couple, seeking surrogacy in India will have to appoint a local guardian to be legally
responsible for taking care of the surrogate mother during and after the pregnancy.
g) A relative, a known or unknown person to the intended parents can act as a surrogate
mother. When a relative is acting as a surrogate, she should belong to the same
generation as the intended parents.
h) The commissioning parents will have to ensure that the surrogate mother and the child
are insured until the time the child is handed over to the commissioning parents.
(ARTBill)

SURROGATE MOTHER
A surrogate mother is a woman who agrees to carry someone else's child. She becomes
pregnant using some form of assisted reproductive technology, frequently IVF. The surrogate
mother carries the baby to term and gives birth, and the baby is released from the hospital to
its intended parents.

PROFILE OF AN INDIAN SURROGATE MOTHER
In India surrogacy is a multibillion rupee industry generating revenues to the tune of 24.8
billion rupees per year. Due to its legal but unregulated nature the surrogates are vulnerable to
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exploitation by middlemen, ART clinics and the biological parents. India the second most
populous country in the world is a very economical market for surrogacy. Women belonging
to marginalized socio-economic background are more than willing to rent their wombs for
making quick buck. These women are mostly illiterate who are not only poor but also in
immediate need of money. The entire structure of the surrogacy process takes advantage of
this vulnerability and compels these women to enter into surrogacy contracts not once but
multiple number of times. This has a bad impact on the women’s health and also affects her
family and social life. The loose guidelines by the ICMR makes matter worse as it mentions
no provisions in case things go wrong.
According to ICMR for a women to be eligible for surrogacy she needs to fulfill the
following criterion-:
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She needs to be an Indian citizen between the ages of 20-35 years.
A prospective surrogate mother must be tested for HIV and shown to be seronegative
for this virus just before embryo transfer.
No woman may act as a surrogate more than thrice in her lifetime.
In case of a surrogate who is married consent of her husband is mandatory before
entering into the agreement.

Though ICMR has given a detailed account on the procedure to be followed during a
surrogacy agreement the lack of a regulatory authority and strict implementation of the
provisions provided so far make it a very dubious and risky affair for the women agreeing to
act as a surrogate. The entire procedure is currently handled by the ART clinics who act as a
facilitator between the surrogates and potential parents. It is they who take care of all the
legal paper works, medical procedures and counselling of both the parties. But due to lack of
regulation they mold the rules to fill their pockets. For example only 1 embryo transfer is
allowed in a women’s body at a time but this no reaches to 7 at times risking the life of both
the baby and surrogate. This can also lead to complications in pregnancy like higher risks of
high blood pressure, diabetes, anemia or postpartum bleeding. Also before the surrogates
enter into an agreement they almost never told about the side effects and risks involved in
embryo transfer. Even after embryo transfer they are not told about such vital information as
how many embryos had been transferred, or the complications of multifetal pregnancy or
fetal reduction. According to law these women have bargaining power with respect to
compensation but here also it is the ART clinics that reap maximum benefits. This is also due
to availability of surrogates in huge number as also lack of regulation in rates by the state or
any other agency.

RIGHTS OF A SURROGATE MOTHER
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All expenses, including those related to insurance if available, of the surrogate related
to a pregnancy, during the period of pregnancy and after delivery as per medical
advice, and till the child is ready to be delivered as per medical advice, to the
biological parent or parents, shall be borne by the couple or individual seeking
surrogacy.
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The surrogate mother may also receive monetary compensation from the couple or
individual, as the case may be, for agreeing to act as such surrogate.
No woman shall act as a surrogate for more than five successful live births in her life,
including her own children. Only 1 embryo transfer can happen in a women’s womb
at a time and this can happen for 3 times for a single party (individual or couple).
All information about the surrogate shall be kept confidential and information about
the surrogacy shall not be disclosed to anyone other than the central database of the
Department of Health Research, except by an order of a court of competent
jurisdiction.
A surrogate mother shall be given a certificate by the person or persons who have
availed of her services, stating unambiguously that she has acted as a surrogate for
them.

DUTIES OF A SURROGATE MOTHER
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She needs to enter into the surrogacy agreement with the intention to carry it to ‘full
term’ that is she can’t abort the baby in between pregnancy. She has to handover the
baby to the biological parents at the end of pregnancy.
A surrogate mother shall relinquish all parental rights over the child after its birth.
Any woman seeking or agreeing to act as a surrogate mother shall be medically tested
for such diseases, sexually transmitted or otherwise, as may be prescribed, and all
other communicable diseases which may endanger the health of the child, and must
declare in writing that she has not received a blood transfusion or a blood product in
the last six months. For this purpose she has to fill a form called form M2.
In respect of all medical treatments or procedures in relation to the concerned child, at
any medical facility or ART clinic, the surrogate shall mention herself as a surrogate
and furnish the details of the person(s) for whom she is acting as a surrogate.
Any woman agreeing to act as a surrogate shall be duty-bound not to engage in any
act that would harm the fetus during pregnancy and the child after birth, until the time
the child is handed over to the designated person(s).
In case of a surrogate who is married consent of her husband is mandatory before
entering into the agreement.

The current provisions don’t provide for the medical expenses and socio-psychological wellbeing of a surrogate post-delivery. In case of a complicated pregnancy the medical fraternity
as well as law give more impetus to saving the baby’s life than the surrogates. Also the duties
far outweigh the rights of a surrogate. Pregnancy is marred with physiological as well as
psychological changes in a woman, it is one of those joys which not only makes her complete
but also help in establishing a deeper connection with her near and dear ones. It is a very
emotional and joyous phase in a woman’s life. Can someone really put a price on this? Also
how ethical it is to temper with the nature’s biggest gift to humanity, what is the guarantee
that this won’t be abused by some in the future. Can a few rights really guarantee that
surrogacy wont temper with the sacrosanct nature of pregnancy?

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Notwithstanding all these issues it is the duty of the state to put in place a regulating agency
that controls as well as monitor the entire surrogacy procedure. Also proper laws should be
formulated to protect and enforce the rights and duties respectively of the different parties
involved in a surrogacy contract.

OFFENCE AND PENALTIES
There are numerous offences and penalties associated with the Assisted Reproduction
Technologies (Regulations) Bill -2010. Offences related to surrogacy are listed below:
•

If surrogate mother refuses to hand over the child to Intended parents

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Intended parents could not abandon the child irrespective of any abnormality that the
child may have, and the refusal to do so shall constitute an offence under this Act.

•

Violations of rights of surrogate mother will be considered as an offense. Whoever
contravenes any of the provisions of this shall be punishable with imprisonment for a
term which may extend to three years, or with fine which may be specified, or with
both.

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If assisted reproductive technology clinic provides information on or about surrogate
mothers or potential surrogate mothers to any person.

• No assisted reproductive technology procedure shall be performed on a woman below
21 years of age, and any contravention of this stipulation shall amount to an offence
punishable under this Act.
•

Sex determination of child is an offence. A person who violates this is punishable with
imprisonment for a term (up-to five years) and with specified fine.

• No person shall knowingly provide, prescribe or administer anything that would
ensure or increase the probability that an embryo shall be of a particular sex, except to
diagnose, prevent or treat a sex-linked disorder or disease. Any contravention of
above-mentioned section shall amount to an offence under this Act.

• Any person who divulges the name, identity or address of a donor shall be guilty of an
offence under this Act

CURRENT STATUS OF THE BILL (AMENDMENTS)
Draft of Assisted Reproductive Technology (Regulation) Bill, 2013 (ART Bill) has come
up.The draft Bill 2013, an exhaustive document containing 100 sections addressing various
issues relating to ART, is stated to now be ‘Top Secret,’ being a part of the Cabinet note.
The most crucial proposal is to restrict surrogacy in India to “infertile Indian married
couples” only. Non-resident Indians (NRIs), Persons of Indian Origin (PIOs) and Overseas
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Citizens of India (OCIs) would be eligible but foreigners, unless they’re married to Indian
citizens, will not. The purpose of this is to prevent exploitation of Indian women who may be
tempted to take the risk of surrogacy in the face of financial hardships.
The Ministry of Home Affairs (MHA), according to the guidelines of July 9, 2012, restricted
surrogacy to foreign nationals; i.e. a man and a woman married for at least two years would
be required to take a medical visa for surrogacy in India. As of now, even though surrogacy is
an administrative concern and in the domain of the MoHFW, it has been decided that till the
enactment of a law on the ART Bill, 2013, the guidelines issued by the MHA will prevail till
then.
The legal aspects of surrogacy in any particular jurisdiction tend to hinge on few central
questions: Are surrogacy agreements enforceable, void or prohibited? Does it make a
difference whether the surrogate mother is paid (commercial) or simply reimbursed for
expenses (altruistic)? What, if any, difference does it make whether the surrogacy is
traditional or gestational? Is there an alternative to post-birth adoption for the recognition of
the intended parents as the legal parents, either before or after the birth?
For these questions to be answered new amendments, which are to be made must clearly,
define the status on these questions also.

CASE: BABY MANJI YAMADA V/S UNION OF INDIA
Case Facts
This petition under Article 32 of the Constitution of India, 1950 raises some important
questions.
Essentially challenge is to certain directions given by a Division Bench of the
Rajasthan High Court relating to production/custody of a child Manji Yamada. Emiko
Yamada, claiming to be grandmother of the child, has filed this petition. The Writ
Petition before the Rajasthan High Court was filed by M/s. SATYA, stated to be an
NG0, the opposite party No. 3 in this petition. The D.B. Habeas Corpus Writ Petition
No. 7829 of 2008 was filed by M/s. SATYA wherein the Union of India through
Ministry of Home Affairs, State of Rajasthan through the Principal Secretary, The
Director General of Police, Government of Rajasthan and the Superintendent of
Police Jaipur City (East), Jaipur were made the parties. There is no dispute about
Baby Manji Yamada having been given birth by a surrogate mother. It is stated that
the biological parents Dr. Yuki Yamada and Dr. Ikufumi Yamada came to India in
2007 and had chosen a surrogate mother in Anand, Gujarat and a surrogacy agreement
was entered into between the biological father and biological mother on one side and
the surrogate mother on the other side. It appears from some of the statements made
that there were matrimonial discords between the biological parents. The child was
born on 25th July, 2008. On 3rd August, 2008 the child was moved to Arya Hospital
in Jaipur following a law and order situation in Gujarat and she was being provided
with much needed care including being breastfed by a woman. It is stated by the
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petitioner that the genetic father Dr. Ifukumi Yamada had to return to Japan due to
expiration of his visa. It is also stated that the Municipality at Anand has issued a
Birth Certificate indicating the name of the genetic father.
The father, who wanted to take the child back with him, faced legal hurdles because
single men from abroad are prohibited by Indian law to adopt children. He sent his
mother in his stead and a petition was filed before the Supreme Court. The
Government seemed to be helpless in this matter as there were no laws governing the
effect of surrogacy. The Apex Court directed that the National Commission for
Protection of Child Rights was the apt body to deal with this issue.

Final Verdict
Justic Arijit Pasayat and Justice Mukundakan Sharma of the Supreme Court held that
the father was the genetic father of the child and he was given custodial rights of the
child. The issue was resolved when the Japanese Government issued a one-year visa
to father on humanitarian grounds, after the Indian Government granted a travel
certificate in line with a Supreme Court direction. The Government was instructed to
issue the passport to Manaji Yamada and she returned with her grand –mother. She
came to India with her son to claim joint custody of the child. Most importantly, the
Supreme Court held that the Surrogacy Agreement was valid in India. But not before
her paternal grandmother came to India with her son to claim joint custody of the
child.

Emiko Yamada with her grandaughter, Baby Manji. Manji was given a ‘certificate of
identity’ before eventually going home to Japan with her father and grandmother

THE OTHER SIDE OF SURROGACY
IVF (In Vitro Fertilization) and surrogacy, both part of Assistive Reproductive Technologies
(ART), are inventions of scientists who sought to solve a problem faced by the humanity- a
problem of infertility. This technology however, has opened to a wide range of social debates
and implications. As society is in a challenge to find a balance between these commercial
opportunities and their moral footings, some of the negativities associated with surrogacy in
the Indian context are mentioned below:
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India portrayed as a market for ‘Rent-a-womb’
India is becoming the most preferred destination for childless parents in developed
economies in Canada, US, Europe, Australia and upper class Indian parents, who have
their means to avail the service of rent a womb. More than 3000 fertility clinics
operate across India that make-up a very important industry here. The clinics assisting
in ART is now being called baby factories. The surrogacy business in India is valued
to be around $400 million a year as per a UN backed study. Favorability of India for
surrogacy can be attributed to the factors such as encouraging legal environment,
comparatively low costs associated with the procedure, ample availability of medical
infrastructure, increasing international demand and most importantly the ready
availability of poor. For instance, most of the women offering the service of surrogacy
are almost always from the lower strata of society.

Shadier side of commercial surrogacy
An objection raised against ART in the broader sense and surrogacy to be specific is
that it will lead to making of babies and surrogates as mere commodities. Many
enterprises operate in the Internet as well as the real world offering these services,
some real whereas some are fraud. The increasing profit reaping mentality amidst the
society has led to the existence of a large number of surrogacy mafia in the country
that lure women of poor households to become surrogates for even less money. They
are even taken to clinics that are not licensed by the Government or the Indian
Medical Council to undertake the procedure of ART. The risks associated with such
instances are left unheeded by the agents as well as the surrogate and her family as
money-play a very prominent factor here. A journalist of New Zealand origin, Ms.
Gianna Taboni brought out a number of cases of surrogacy rackets in India for a
documentary series for HBO named Vice. The stories of some of the surrogate
mothers are horrifying, especially those who miscarry the baby and therefore left
unpaid. These women had to finance themselves for all medical treatments undertaken
and the follow-up that were to be done. The burden of guilt within the Indian context
imposed by the society which in the first place were judging them for bearing a
stranger’s child in their womb is huge.

Increasing fraudulent cases
The number of cases where cheating or fraud happens in the context of surrogacy is
increasing. However, not all are reported nor brought to limelight. Two main cases in
this context are:
i.
Case of Sumati and Jyoti in Chennai
ii.
Case of Anandi in Chennai
All the three women, when they started out as surrogates have their personal
experience of cheating by the people concerned. They were promised a hefty amount
by the clients but couldn’t avail the same. In the case of Sumati and Jyoti, it was the
clients who did not deliver the money as promised. But in the case of Anandi, the
agent took a 50% cut from the offered money for himself and gave the rest. Also, the
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charges for post-delivery complications and its medical services if any, were not given
to Anandi as was promised.
The exposure of these and subsequent cases led to the formation of Global Surrogate
Mothers’ Advancing Rights Trust (G-SMART) that protects the rights of the surrogate
mothers.

Case of pramila vaghela
Pramila Vaghela, 30, a married woman residing in the city of Ahmedabad, Gujarat,
was made pregnant by using artificial insemination. She was a surrogate for an
American couple. In May 2012 i.e. in her eighth month of pregnancy, due to some
unexplained complications, she collapsed and eventually died within hours in the
Pulse hospital in Ahmedabad. However, she completed the job for which she was
hired for- delivering a baby. She delivered an eight month old foetus that was handed
over to the American couple after attaining its maturity.
Mrs. Vaghela, whose family background is poor and penniless herself, had decided to
become a surrogate for the future of her own two children. When she collapsed, an
immediate caesarean was performed to deliver the baby. The police after investigating
the case, recorded it as a case of accidental death and not as medical negligence. Her
family too did not sue the hospital for any compensation as the surrogacy contracts
signed by Mrs. Vaghela like any other surrogate mother in India, exempt the hospital
and the clients from all possible liabilities which in turn make the surrogates and their
husbands liable for medical, financial and psychological risks. The contracts further
gives more emphasis to the protection of foetus and not the surrogate mothers. The
relative importance of mother and child are not highlighted.

ANAND: INDIA’S SURROGACY CAPITAL
The world know Anand as a town of 1.8 million in the state of Gujarat, famous for White
revolution and henceforth as India’s cooperative milk capital. However, it is also now being
known, as India’s surrogacy hub in the recent times and the two main hospitals responsible
for this are the Sat Kaival Hospital and Akanksha Infertility Clinic run by Dr. Nayana Patel
and her husband Hitesh. Around 30 babies are given birth by surrogate mothers on an average
every month in the hospital.
The hospital had enjoyed the limelight twice in the international arena. It was in the year
2008 that the hospital first came in the news for the case involving the custody of Manji
Yamada, a baby born to Japanese parents at Dr. Patel's facility in Anand, was thrown into
ambiguity after they separated before his birth. The landmark Jan Balaz vs. Union of India
(2009) case also involved Dr. Patel's Akanksha Infertility Clinic. This saw Indian citizenship
being conferred on the twin babies and the due process of adoption being followed.
The clinic is a 100,000 sq. ft. building that has capacities to accommodate would-be parents,
surrogates, IVF facilities and neonatal units next to a vocational institute. The first IVF case
in the clinic was in 1999 when the baby Akansha was born, after whom the clinic is named.
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The number of babies delivered at Dr. Patel's clinic till date, is above 700 and is still
counting.

WHAT NEXT?
A large number of couples from India and elsewhere who cannot bear a child themselves
have been choosing commercial surrogacy as a practicable option. While a large set of
guidelines are already laid by the Government and the Medical Council, there are still issues
that calls for a review of relevant policy and legislation. Some of the possible initiatives are
suggested as follows:
1. A well-defined legislature pronouncing minor details
A clearly defined law needs to be drafted immediately which will pronounce in detail
the Indian government‘s stand on surrogacy. This will enable even the most discreet
activities in this respect to be stopped. This will also ensure ceasing of exploitation of
the surrogate mother.
2. Need for a non-government or a not-for-profit agency
There exists an ardent requirement of a non-government or a not-for-profit agency
that can act as a corresponding service between the surrogates and the intended
parents. These can also monitor and standardize the financial compensation that the
surrogate mother receive, that will also recognize her time out of the workforce, her
labor, physical discomfort and restrictions while pregnant.
3. More awareness and community education
Community education is very necessary to provide better understanding of the entire
process of surrogacy and the related matters. People in most parts of the country, still
consider surrogacy as a taboo which should be nullified by making them aware of the
matters. Moreover, sessions are to be conducted that will make the prospective
surrogates aware of the characteristics that are requisite to become a surrogate mother
and help them in the assistance of safe surrogacy practices in India.

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REFERENCES

ARTBill. (n.d.). The Assisted reproductive Technologies (Regulation) Bill, 2010.
Retrieved from http://icmr.nic.in/guide/ART%20REGULATION%20Draft
%20Bill1.pdf
Family Policy and law: Surrogacy. (n.d.). Retrieved from 1.
https://aifs.gov.au/publications/families-policy-and-law/8-use-surrogacyaustralians-implications-policy-and-law-reform
ICMR. (n.d.). The Reproducitve Technology (regulation) Bill, 2008. Retrieved from
http://www.prsindia.org/uploads/media/vikas_doc/docs/1241500084~~Dra
ftARTBill.pdf
Mothers for hire. (n.d.). Retrieved from http://www.smh.com.au/national/mothersfor-hire-20120906-25hi1.html
The Other Side Of Surrogacy: Women Forced To Sell Their wombs. (n.d.).
Retrieved from http://www.youthkiawaaz.com/2014/06/side-surrogacywomen-forced-sell-wombs-money/

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ANNEXURE 1
FORM – J : Agreement for Surrogacy
(See Rule 15.1)

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ANNEXURE 2
SUPREME COURT OF INDIA
BABY MANJI YAMADA VS UNION OF INDIA & ANR ON 29 SEPTEMBER, 2008
AUTHOR: A. PASAYAT
BENCH: ARIJIT PASAYAT, MUKUNDAKAM SHARMA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 369 OF 2008

Baby Manji Yamada

Petitioner
Versus

Union of India & Anr.

Respondents

JUDGMENT
Dr. ARIJIT PASAYAT. J.
1. This petition under Article 32 of the Constitution of India, 1950 (hereinafter for short 'the
Constitution') raises some important questions.
2. Essentially challenge is to certain directions given by a Division Bench of the Rajasthan
High Court relating to production/custody of a child Manji Yamada. Emiko Yamada, claiming
to be grandmother of the child, has filed this petition. The Writ Petition before the Rajasthan
High Court was filed by M/s. SATYA, stated to be an NG0, the opposite party No. 3 in this
petition. The D.B. Habeas Corpus Writ Petition No. 7829 of 2008 was filed by M/s. SATYA
wherein the Union of India through Ministry of Home Affairs, State of Rajasthan through the
Principal Secretary, The Director General of Police, Government of Rajasthan and the
Superintendent of Police Jaipur City (East), Jaipur were made the parties. There is no dispute
about Baby Manji Yamada having been given birth by a surrogate mother. It is stated that the
biological parents Dr. Yuki Yamada and Dr. Ikufumi Yamada came to India in 2007 and had
chosen a surrogate mother in Anand, Gujarat and a surrogacy agreement was entered into
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between the biological father and biological mother on one side and the surrogate mother on
the other side. It appears from some of the statements made that there were matrimonial
discords between the biological parents. The child was born on 25th July, 2008. On 3rd
August, 2008 the child was moved to Arya Hospital in Jaipur following a law and order
situation in Gujarat and she was being provided with much needed care including being
breastfed by a woman. It is stated by the petitioner that the genetic father Dr. Ifukumi Yamada
had to return to Japan due to expiration of his visa. It is also stated that the Municipality at
Anand has issued a Birth Certificate indicating the name of the genetic father.
3. Stand of respondent No. 3 was that there is no law governing surrogation in India and in
the name of surrogation lot of irregularities are being committed. According to it, in the name
of surrogacy a money making racket is being perpetuated. It is also the stand of the said
respondent that the Union of India should enforce stringent laws relating to surrogacy. The
present petitioner has questioned the locus standi of respondent No. 3 to file a habeas corpus
petition. It is pointed out that though custody of the child was being asked for but there was
not even an indication as to in whose alleged illegal custody the child was. It is stated that
though the petition before the High Court was styled as a "Public Interest Litigation" there
was no element of public interest involved. Learned counsel for respondent No. 3 with
reference to the counter- affidavit filed in this Court had highlighted certain aspects relating
to surrogacy. The learned Solicitor General has taken exception to certain statements made in
the said counter affidavit and has submitted that the petition before the High Court was not in
good faith and was certainly not in public interest.
4. We need not go into the locus standi of respondent No. 3 and/or whether bonafides are
involved or not. It is to be noted that the Commissions For Protection of Child Rights Act,
2005 (hereinafter for short 'the Act') has been enacted for the constitution of a National
Commission and State Commissions for protection of child rights and children's courts for
providing speedy trial of offences against children or of violation of child rights and for
matters connected therewith or incidental thereto. Section 13 which appears in Chapter III of
the Act is of considerable importance. The same reads as follows:
Functions of Commission:
(1) The Commission shall perform all or any of the following functions, namely:(a) Examine and review the safeguards provided by or under any law for the time being in
force for the protection of child rights and recommend measures for their effective
implementation;
(b) Present to the Central Government, annually and at such other intervals, as the
Commission may deem fit, reports upon the working of those safeguards;
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(c) Inquire into violation of child rights and recommend initiation of proceedings in such
cases;
(d) examine all factors that inhibit the enjoyment of rights of children affected by terrorism,
communal violence, riots, natural disaster, domestic violence, HIV/AIDS, trafficking,
maltreatment, torture and exploitation, pornography and prostitution and recommend
appropriate remedial measures.
(e) look into the matters relating to children in need of special care and protection including
children in distress, marginalized and disadvantaged children, children in conflict with law,
juveniles, children without family and children of prisoners and recommend appropriate
remedial measures;
(f) study treaties and other international instruments and undertake periodical review of
existing policies, programmes and other activities on child rights and make recommendations
for their effective implementation in the best interest of children;
(g) Undertake and promote research in the field of child rights;
(h) spread child rights literacy among various sections of the society and promote awareness
of the safeguards available for protection of these rights through publications, the media,
seminars and other available means;
(i) inspect or cause to be inspected any juvenile custodial home, or any other place of
residence or institution meant for children, under the control of the Central Government or
any State Government or any other authority, including any institution run by a social
organisation; where children are detained or lodged for the purpose of treatment, reformation
or protection and take up with these authorities for remedial action, if found necessary;
(j) Inquire into complaints and take suo motu notice of matters relating to, (i) Deprivation and violation of child rights;
(ii) Non-implementation of laws providing for protection and development of children;
(iii) Non-compliance of policy decisions, guidelines or instructions aimed at mitigating
hardships to and ensuring welfare of the children and to provide relief to such children, or
take up the issues arising out of such matters with appropriate authorities; and
(k) Such other functions as it may consider necessary for the promotion of child rights and
any other matter incidental to the above functions

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2) The Commission shall not inquire into any matter which is pending before a State
Commission or any other Commission duly constituted under any law for the time being in
force."
5. Surrogacy is a well-known method of reproduction whereby a woman agrees to become
pregnant for the purpose of gestating and giving birth to a child she will not raise but hand
over to a contracted party. She may be the child's genetic mother (the more traditional form
for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after
having been implanted with an embryo. In some cases surrogacy is the only available option
for parents who wish to have a child that is biologically related to them.
The word "surrogate", from Latin "subrogare", means "appointed to act in the place of". The
intended parent(s) is the individual or couple who intends to rear the child after its birth.
6. In "traditional surrogacy" (also known as the Straight method) the surrogate is pregnant
with her own biological child, but this child was conceived with the intention of relinquishing
the child to be raised by others; by the biological father and possibly his spouse or partner,
either male or female. The child may be conceived via home artificial insemination using
fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra
cervical insemination) which is performed at a fertility clinic. '
7. In "gestational surrogacy" (also known as the Host method) the surrogate becomes
pregnant via embryo transfer with a child of which she is not the biological mother. She may
have made an arrangement to relinquish it to the biological mother or father to raise, or to a
parent who is themselves unrelated to the child (e. g. because the child was conceived using
egg donation, germ donation or is the result of a donated embryo). The surrogate mother may
be called the gestational carrier.
8. "Altruistic surrogacy" is a situation where the surrogate receives no financial reward for
her pregnancy or the relinquishment of the child (although usually all expenses related to the
pregnancy and birth are paid by the intended parents such as medical expenses, maternity
clothing, and other related expenses).
9. "Commercial surrogacy" is 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 cost involved or people who save and borrow in order to complete their
dream of being parents. This medical procedure is legal in several countries including in India
where due to excellent medical infrastructure, high international demand and ready
availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is
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sometimes referred to by the emotionally charged and potentially offensive terms "wombs for
rent", "outsourced pregnancies" or "baby farms".
10. Intended parents may arrange a surrogate pregnancy because a woman who intends to
parent is infertile in such a way that she cannot carry a pregnancy to term. Examples include
a woman who has had a hysterectomy, has a uterine malformation, has had recurrent
pregnancy loss or has a healthy condition that makes it dangerous for her to be pregnant. A
female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy.
11. Alternatively, the intended parent may be a single male or a male homosexual couple.
12. Surrogates may be relatives, friends, or previous strangers. Many surrogate arrangements
are made through agencies that help match up intended parents with women who want to be
surrogates for a fee. The agencies often help manage the complex medical and legal aspects
involved. Surrogacy arrangements can also be made independently. In compensated
surrogacies the amount a surrogate receives varies widely from almost nothing above
expenses to over $ 30,000. Careful screening is needed to assure their health as the
gestational carrier incurs potential obstetrical risks.
13. In the present case, if any action is to be taken that has to be taken by the Commission. It
has a right to inquire into complaints and even to take suo motu notice of matters relating to,
(i) deprivation and violation of child rights (ii) non-implementation of laws providing for
protection and development of children and (iii) non-compliance of policy decisions,
guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the
children and to provide relief to such children, or take up the issues arising out of such
matters with appropriate authorities.
14. It appears that till now no complaint has been made by anybody relating to the child, the
petitioner in this Court.
15. We, therefore, dispose of this writ petition with a direction that if any person has any
grievance, the same can be ventilated before the Commission constituted under the Act. It
needs no emphasis that the Commission has to take into account various aspects necessary to
be taken note of.
16. Another grievance of the petitioner is that the permission to travel so far as the child is
concerned including issuance of a Passport is under consideration of the Central Government;
but no orders have been passed in that regard. The other prayer in the petition is with regard
to an extension of the visa of the grandmother of the child requesting for such an order.
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17. Learned Solicitor General, on instructions, stated that if a comprehensive application, as
required under law, is filed within a week, the same shall be disposed of expeditiously and
not later than four weeks from the date of receipt of such application. If the petitioner has any
grievance in relation to the order to be passed by the Central Government, such remedy, as is
available in law may be availed.
18. The writ petition is accordingly disposed of without any order as to costs. All proceedings
pending in any High Court relating to the matter which we have dealt with in this petition
shall stand disposed of because of this order.

(Dr. ARIJIT PASAYAT)
(Dr. MUKUNDAKAM SHARMA)
New Delhi: September 29, 2008

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