Surrogacy Chapter 1

“Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015
Chapter – I
Introduction
Society is named for the group of individuals. At one point, this may be geological
and at another point it may be zoological or botanical. One salient feature of this society
is racial development, i.e., reproduction in terms of genetics. For instance, a botanical
species have a special feature of production or the ability of reproduction or the condition
or state of being fertile, i.e., producing good quality fruits, vegetables and to provide seeds
for future. Life exists because of the power of procreation. It is acknowledged that since
the Indus Valley civilization, Mother Goddess, who is a symbol of fertility, has been
worshipped. Land has been worshiped for its fertility power in full moon days. Even
planting and harvest festivals are very important fertility rituals at different points of time.
Same is the case with the different zoological species, whether insects, birds, animals or
mammals in general or human beings in particular.
Having children has always been important since time immemorial and the
continuity of the family unit has been of major significance in Indian society. The inability
to reproduce is considered as a social stigma and Indian mythology is full of stories about
what couples have done in the past to overcome their fertility problems. The stories from
the ancient Hindu epic Mahabharata reveals as to why Hindus, in particular and Indians, in
general are so obsessed with children. Besides social factors like ‘someone to take care of
me in my old age’, directs our attention to a profound religious demand for a child,
especially a male one.
The giving of birth to a baby relates to the body of a woman which is a matter of
her dignity. Surrogacy, though being advantageous to the couple who have no kids, but is,
inconsistent with human dignity as another woman uses her uterus for financial profit and
treats her womb as an incubator for someone else’s child.
The desire to procreate is a fundamental attribute of the human race. Sadly, many
are denied the joy of parenthood due to several reasons, be it biological or otherwise, with
the developments in reproductive sciences and technologies, the barriers to parenthood are
no longer as challenging as they were before. Over the years, renting a womb for carrying
a child of another or commonly known ‘surrogacy’ has evolved as a much preferred mode
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of bringing a child into this world. India, in particular has seen a rise in surrogacy as an
ideal technique for childless couples to enjoy the pleasures of parenthood. Women or
couples who choose surrogacy often do so because they are unable to conceive due to a
missing or abnormal uterus. Most of them also have experienced multiple pregnancy
losses, or have had multiple in-vitro fertilization attempts that have failed. Most of the
times, couples go for gestational surrogacy as it is beneficial to the intended parents
because the embryo is created from the mother’s egg and the father’s sperm and so it is
biologically theirs.
1.1 Historical Overview:

The importance of fertility in human beings is relied on men and women, their
fertility to produce children to carry on the family line, as life exists because of
procreation. To celebrate this power of procreation, many religions practice fertility
rituals. During these fertility rituals, the power of procreation is honoured by worshipping
fertility Gods such as Lord Shiva and Lord Kartikeya. In Greek Mythology, ‘Eros’ was the
primitive God of lust, love and intercourse and was worshipped as a fertility deity. Fertility
rituals and fertility symbols such as Shiva Lingam, which is the most powerful fertility
symbol in Hinduism consists of the critical union of Shiv-Parvati, dominates the Hindu
religious practices.1
But the destruction, deviation or extinction of this special feature of fertility is
considered as a curse for the individual and for the entire family. Ideally, creature has
empowered all living beings with the power of production or reproduction. But because of
known and unknown natural and scientific effects, this special feature can be found in a
vegetative stage and the requirement is to get the solution of the problem specifically for
human beings. Reproductive problems are not new rather common in all. Some are
curable and some cannot be cured and this state of human existence is considered pathetic
since long.
Sometime men are found with reproductive problems and sometime women too. In
the ancient era, when a man could not produce a child with his wife, he was given the
benefit of doubt and was allowed to marry again and again. If, despite this, he failed to
1
http://vinayaghimire.hubpages.com/hub/fertility-symbols-and-fertility-rituals-in-hinduism; last visited on
14/01/2013; time 11:00 am (IST); place Meerut, Uttar Pradesh, India.
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father a child, it was concluded that he was sterile. In such circumstances, the
Dharmashastras suggested that another man be invited to cohabit with his wife. This
practice was known as ‘niyoga or levirate’.
During the epic age of Mahabharata, Pandu and Dhritarashtra faced such problems
and “niyoga” was the solution which was adopted, which may be equated as “In Vitro 2-
Fertilization” today. It is also believed that Gandhari, the wife of King Dhritarashtra
conceived, but her pregnancy remained prolonged for nearly two years. At the end of this
period as described by Bhagwan Vyasa, she delivered a mass of material that contained
101 normal cells which when put in a nutrient medium grew up full term as 100 male
children – the Kauravas – and one female child, called Duhsheela.
According to the Bhagwad Gita, even Lord Krishna is understood to have been
born without a sexual union. Kans, the wicked king of Mathura, had imprisoned his sister
Devaki and her husband Vasudeva because oracles had informed him that her child would
be his killer. Every time she delivered a child, he smashed his head on the floor. He killed
six children. When the seventh child was conceived, the gods intervened. They summoned
the goddess Yogamaya and sent her to transfer the fetus from the womb of Devaki to the
womb of Rohini (Vasudeva’s other wife who lived with her sister Yashoda across the river
Yamuna, in the village of cowherds at Gokul), when Vishnu heard Vasudeva’s prayers
beseeching Kansa not to kill all his sons being born. Thus, the child was conceived by
divine ‘mental transmission’ in one womb was incubated in and delivered through another
womb. This all may be considered as traditional prevalence of surrogacy in India.
Same is the case with ‘Sarah’, the wife of Abraham, who was found with problem
in conceiving, her maid servant ‘Hagar’ was laid with her husband ‘Abraham’ to bear a
child for the infertile Sarah, which may be called as ‘surrogacy’ in today’s scenario and the
method used may be termed as traditional method of surrogacy.
In fact, these types of arrangements have been in existence since a very long time.
It is as old as human history. Historically the first child born through such arrangement
was ‘Ishmael’, as was mentioned in the Old Testament of the Holy Bible. The second and
the third known births occurred in Sumer-Mesopotamia in the middle of the 18th century
B.C. in the family of Jacob, Abraham’s grandson. This problem was also experienced in
1790 although most of the world probably did not know that this process was in existence.
2
‘In-vitro’ means outside the living body and in an artificial environment (as opposed to ‘in-vovo’ which
means taking place in a living organism.)
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The first case of surrogacy/artificial insemination occurred in United States using a

donor’s sperm. One can also find the mention of births by such arrangement in the ancient
Babylonian legal code of Hammurabi in the 18 th century which recognized the practice of
surrogacy and actually laid down detailed guidelines specifying rights of both the wife and
the surrogate mother and also as to when it would be permitted to be practiced. The child
born from such a relationship assumed the throne only if there were no other legitimate
nominees. Such relationship may be termed as traditional surrogacy which was common
in ancient Greece, Egypt and Rome.
An example of infertility from Quran which can be quoted is that of Zakariya and
his wife Ishba. The Quran provides that everyone belongs to Allah. He creates what he
desires. He bestows male or female offspring on females or sometimes renders them
barren. The Prophet has encouraged Muslim men to marry those who are fertile. If for
some reason the first wife is infertile then the option to avail the choice of polygamy is
one that is encouraged in Islam.
"To Allah belongs the dominion of the heavens and earth. He creates what He wills
and (plans). He bestows (children) male or female according to His will (and plan). Or He
bestows both males and females, and He leaves barren whom He wills: for He is full of
Knowledge and power.”3
In Islam, surrogacy is neither permitted under the Islamic family laws, nor is it
allowed under Islamic laws of contract. The womb is known as ‘Rahim’, a word that is
also used to describe one of the attributes of Allah. Perhaps, it is the manifestation of the
Allah's compassion to human kind while the unborn is still in the dark recesses of his
mother’s womb. The discussion of the position of surrogacy must begin with a discussion
of procreation. It must be mentioned at the outset that procreation is only allowed within a
legally binding marriage. The main reason for such a moralistic approach to sexual
relations is to ensure the protection of the essential values in a man’s life, primarily, his
faith and progeny. Procreation within a valid marriage results in legitimate children and
also includes other legal consequences.4
3
See Surah al-Shura (42): 49 – 50.
4
Zawawi, Majdah, Third Party Involvement in the Reproductive Process : Comparative Aspects of the Legal
and Ethical Approaches to Surrogacy, In: Chapter-13: Ethical Issues in Human Reproduction, In: Book:
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However, in European cultures, while surrogacy has undoubtedly been practiced in

the past, it has never been formally recognized by the society or the law. In other societies
such as the Kgatla people of Bechuanaland in South Africa and other traditional Hawaiian
groups undertake similar practices and here surrogate motherhood is seen as an act of
friendship and generosity. In Australia, the first widely publicized case of surrogacy
occurred in 1988. Alice Kirkman was born on 23rd May, 1988 in Melbourne as Australia’s
first IVF surrogate baby. The woman, who gave birth to Alice, was her genetic aunt,
named Linda Kirkman. Linda’s sister, Maggie Kirkman was Alice’s genetic and social
mother as Alice grew from an embryo created from Maggie’s egg fertilized by a donor
sperm.5
This inability to procreate is commonly considered a personal tragedy and a curse
for the couple, creating an impact on the entire family and even the local community.
Infertility has been conceptualized as emotionally stressful and psychologically
threatening experience. It negatively affects different aspects of a couples’ life, which
includes, but is not limited to, disruptions in couples’ personal life, emotional and sexual
relationships as well as their relationship with co-workers, family and friends. It affects
both men and women of reproductive age in all areas of the world, causing personal
suffering and disruption of their family life. It refers to the biological inability of a person
to contribute to conception. The World Health Organization has described ‘infertility’ as
the inability to conceive a child. A couple may be considered infertile if after two years of
regular sexual intercourse, without contraception, the woman has not become pregnant.6
In most developing countries, women are blamed for infertility, resulting in the
social stigma of childlessness, even if they are not the cause for the same. This may be
because in many cultures, womanhood is defined through motherhood and women usually
carry the blame for the couple’s inability to conceive. Childless women are frequently
stigmatized, resulting in isolation, neglect, domestic violence and polygamy. On the other
hand, not only female infertility, but also the majority of male infertility in
developing countries is caused by infections of the male genito-urinary
Bioethics and the Impact of Human Genome Research in the 21 st Century, The Proceedings of the 7th
International Bioethics Seminar in Fukui, Eubios Ethics Institute, 2001.
5
Emmerson, Glenda, Surrogacy: Born For Another, Research Bulletin No. 8/96, Queensland Parliamentary
Library, Brisbane, September 1996.
6
http://www.who.int/topics/infertility/en/; last visited on 20/01/2013; time 09:00 am (IST); place Meerut,
Uttar Pradesh, India.
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tract. It is believed that more than 80 million couples suffer from infertility worldwide,
the majority being the residents of developing countries as compared to the Western
societies.7
This may be because developing countries encounter lack of facilities at all levels
of health care. Developing countries have a large reservoir of infertility problems, of
which bilateral tubal occlusion is most important one, which is caused due to previous
pelvic infection, a condition that is potentially treatable through assisted reproductive
technologies. It is mainly caused by sexually transmitted diseases, postnatal or post-
abortal infections and pelvic tuberculosis etc.
Social transformations as well as medical science advances regarding infertility
treatment has resulted in increasing demand of infertility services. Today, advances in
Assisted Reproductive Technology8 can offer hope to many couples with infertility where,
a few years ago, none existed. Therefore, until the introduction of modern assisted
reproductive techniques, ‘traditional or partial surrogacy’ was the only means of helping
women who had no uterus or had major abnormalities of the uterus to have children. In
more recent years, artificial insemination has been resorted to and various procedures have
been developed including intra-vaginal, intra-cervical and intra-uterine insemination, to
inseminate surrogate hosts with the semen of the male partner of the couple wishing to
have the child.
The first successful vaginal artificial insemination with the husband’s semen was
achieved by John Hunter at the end of the 18 th century. Variations on this basic technique
had been developed which included stimulated intra-uterine insemination, where
insemination with the husband’s sperm is carried out following gonadotrophin therapy and
vaginal intra-tubal insemination, where spermatozoa are deposited in the fallopian tube
under ultrasound guidance. It was also shown that direct intra-peritoneal insemination can
lead to pregnancies. The advent of embryo micromanipulation techniques had made
possible inter alia, the injection of the sperm into the periovular space, resulting in
fertilization and live births.9
7
ICMR Bulletin, June-July, 2000, Vol. 30, No. 6-7, ISSN 0377-4910.
8
Hereinafter referred to as ART.
9
Thappar, Vani and Malhotra, Narendra et. al, Intrauterine Insemination, In: Allahbadia, Gautam N. and
Merchant, Rubina, Contemporary Perspectives on Assisted Reproductive Technology, 1st ed. 2006, p.381.
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Assisted reproductive technology has now enabled both partners in a relationship

to use their own gametes to create their own unique embryos and thereupon these embryos
are to be transferred into the uterus of a surrogate host. This means that although the
female partner of the couple wanting the child may have no uterus, she is able to have her
own genetic child/children.
As early as in 1950s, Robert Edwards, working at the National Institute for
Medical Research in London made a number of fundamental discoveries about how
human eggs mature, how different hormones regulated their maturation and at which point
of time the eggs were susceptible to fertilization.10 After several years of work, he
succeeded, in 1965, in finding the right conditions that activated the dormant and
immature egg cells in vitro and promoted their maturation. He found that human oocytes
required 24 hours of incubation before the maturation process began and this prolonged
cultivation resulted in egg cells suitable for IVF. In 1969, he identified the buffer
conditions to support in vitro activation of hamster oocytes. He used the same buffer
conditions and showed that human spermatozoa thus activated could also promote the
fertilization of in vitro-matured oocytes. Thus, due to his efforts the first IVF baby ‘Louis
Brown’ was born in 1978, the world’s first baby to be born after the use of in-vitro
fertilization technique.11 This discovery marked an important milestone in the
development of treatment for infertility in humans. The discovery of this technique by
Robert Edwards has fetched him Nobel Prize in 2010 which is major medical
advancement and a boon to infertile couples all over the world.12
The world’s second and the India’s first IVF baby, ‘Kanupriya alias Durga’ was
born in Kolkata on 3rd October, 1978 about three months after the world’s first IVF child
was born in Great Britain on 25 th June, 1978.13 America also celebrated the birth of its first
IVF-conceived baby Miss Elizabeth Carr born in Norfolk, Virginia on December 28,
1981.14 India’s first scientifically documented IVF baby named ‘Harsha’, was born on 6th
10
http://www.britannica.com/EBchecked/topic/179875/Robert-Edwards; last visited on 21/01/2013, time:
02:30 pm (IST), place: Meerut, (UP), India.
11
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3799275/; last visited on 22/01/2013, time: 06:30 pm
(IST), place: Meerut, (UP), India.
12
http://www.nobelprize.org/nobel_prizes/medicine/laureates/2010/popular-medicineprize2010.pdf; last
visited on 22/01/2013, time: 07:00 pm (IST), place: Meerut, (UP), India.
13
http://surrogacylawsindia.com/index_inner.php; last visited on 22/01/2013, time: 07:30 pm (IST), place:
Meerut, (UP), India.
14
Reich, J. Brad and Swink, Dawn, Outsourcing Human Reproduction: Embryos & Surrogacy Services In
The Cyberprocreation Era, Journal of Health Care Law & Policy, Volume 14, Issue 2, Article 2, 2011,
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August, 1986 in Mumbai through the collaborated efforts of the ICMR’s Institute of
Research in Reproduction and the King Edward’s Memorial Hospital.15
Since then surrogacy has become one of the mainstream options for childless
couples across the world, who have a strong desire to have a child of their own but do not
desire to adopt one. Such couples resort to surrogacy because of medical conditions that
prevent natural childbirth. Such conditions include infertility, danger of the pregnancy
harming the woman or the child. Traditionally, another woman hired for giving birth to an
infertile couple’s child, was usually a close relative who was looked after and taken care of
during the period of pregnancy, as there was no financial obligation involved in the
process. However, with the changing times and relatives not readily available to suffer the
discomfort and pain involved, the services of surrogate mothers have assumed pecuniary
overtones. The problem of infertility is a serious one in our society and the social stigma
involved includes abandoning of wives. Thus, ‘Surrogacy’ is being resorted to widely as a
solution to infertility where one or both of the partners suffer from infertility problems.
This practice of surrogacy has been prevalent for centuries, involving sexual intercourse,
but now a new factor has entered the surrogacy debate, i.e., advances in reproductive
technologies. The infertile couples who are not able to conceive a child of their own take
the help of reproductive technologies like artificial insemination, in-vitro fertilization/test-
tube baby, in-vivo fertilization, gamete donation and embryo transfer. Surrogacy has
become a ray of hope for them. These reproductive technologies are treated as a remedy
for many problems and offer a wide range of choices, which have reached new dimensions
in this era of globalization. In-vitro fertilization was originally advocated for treating the
cause of female infertility due to tubal obstruction but has also been subsequently used to
treat various other forms of infertility, eg., endometriosis, idiopathic infertility, cervical
hostility, immunological infertility and oligospermia. In some cases, these procedures also
enable a surrogate to carry the genetic child of another couple. An embryo is
formed/fertilized in a laboratory from an infertile woman’s egg and her husband’s sperm
and is implanted into the surrogate mother’s womb.
The desire of the infertile couple to have their own child is been fulfilled through
this process of surrogacy. Surrogacy is also resorted to as a solution by childless couples
p.249.
15
http://www.futuremedicineonline.com/detail_news.php?id=447; last visited on 22/01/2013, time: 10:40
pm (IST), place: Meerut, (UP), India.
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because of difficulties with adoption. Adoption has always been a potential means for an
infertile couple to become parents. But now-a-days, adoption has become a process which
is lengthy, time consuming, expensive and legally arduous. Moreover, the number of
children available for adoption is declining. Adoption involves a response to a child
needing a family. It irrevocably extinguishes any legal relationship between a child and its
parents and creates a new relationship between the adoptive parents and the child.
Adoption is the only way a person, other than a natural parent can become the legal parent
of a child. Surrogacy, on the other hand, involves the planned creation of a child to meet
the needs of an infertile couple.
Thus, factors combined with increase in infertility has forced infertile couples to
look for alternatives, such as surrogacy. Surrogate motherhood is increasingly seen as an
extension of the clinical treatment for infertility. It is considered an option for infertile
couples before coming to terms with the notion of not having children of their own.
Surrogacy can be achieved through various forms of artificial reproduction. A surrogate
mother can be artificially inseminated with the sperm of the commissioning male or a
donor. Less frequently, the woman is inseminated by sexual intercourse with the
commissioning man.16 In these cases, the surrogate mother is the gestational and genetic
parent of the child she bears and surrogacy does not need to involve complex medical
procedures. Alternatively, the surrogate mother may be implanted with an embryo formed
from the gametes of atleast one of the commissioning couple, or from two separate
donors. In such cases, there is no genetic link between the surrogate mother and the child
she bears.
This surrogacy arrangement is made between a couple (either of whom is infertile)
and a surrogate mother. In such an arrangement, the surrogate mother agrees to be
artificially inseminated with the male sperm, to bear a child and to give up all her parental
rights and to transfer physical custody of the child to the commissioning couple on the
birth of the child. Thus, the use of human surrogate mothers who receive fertilized ova and
carry it until birth is now a reality and is being practiced globally. The major reason is the
urge to have one’s own flesh and blood in their progeny.
16
Section 497, IPC, 1860 defines ‘Adultery’: Whoever has sexual intercourse with a person who is and
whom he knows or has reason to believe to be wife of another man, without the consent or connivance of
that man, such sexual intercourse not amounting to offence of rape, is guilty of offence of adultery and is
punishable with imprisonment of either description for a term which may extend to 5 years or with fine or
with both. In such a case, the wife shall not be punishable as an abettor.
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Despite the legal, moral and social complexities that surround surrogacy, there is
nothing to stop people from exploring the possibility of becoming a parent. Women who
may choose to ‘rent their womb’ for surrogate pregnancies are slowly shaking off their
self-consciousness and fear of societal isolation to bring joy to childless couples. In India
and around the world, surrogacy has become a profession for women to earn huge amount
of money in order to improve their living standards. This practice is increasing day by day
as Indian law is silent on this and does not bar women to become surrogate mothers. The
parties to surrogacy, i.e., the would-be surrogate mother and the parents/individuals who
wish to have a baby born through surrogacy execute written contractual agreement
between themselves. In the State of Gujarat, the prize for bearing a baby for nine months,
hospital care, clinical support and nutritional requirements of the surrogate mother are met
by the genetic parents. Couples from Europe, South-east Asian countries are flocking in
huge numbers in India for finding healthy mothers who are willing to act as surrogate
mothers for them. This type of reproductive tourism can also help the Lesbians-Gay-
Bisexual-Transgenders (LGBT) to have babies via surrogacy.
Reproductive tourism is being practiced which involves travelling to another
country for fertility treatment. The main reason behind this is the stringent legal
regulations in the home country or lower priced services available in another country.
Couples may travel to get sperm, eggs, IVF treatment, for sex selection or to utilize the
services of a surrogate mother. There are a number of places in the world that are
considered the best in terms of cost, legislation, effectiveness of different procedures and
India is one of the main destinations for surrogacy. Indian surrogates have become
increasingly popular with infertile couples in industrialized countries because of the
relative low cost.
In the practice of surrogacy, one new system has been evolved where financial
attraction or gain is shown to the surrogate and in spite of her unselfish concerns she
becomes interested in monetary gains, even sometimes at the cost of her life and health.
The surrogate mother receives financial reward for her pregnancy on the relinquishment of
the child which means business of body or body related parts or products. Surrogacy
arrangement has attracted the poverty stricken population of India because of economic
necessity. The absence of specific laws prohibiting commercial surrogacy is also posing a
great difficulty. The desire to earn a livelihood through surrogacy arrangements have led
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to the deterioration of the health of the surrogate mother, which is of utmost importance
and one cannot visualize its long term consequences. The repeated pregnancies can even
affect the cardio-vascular health of the poor illiterate woman, which she may not know.
Her health may be satisfactory during the pregnancy because of the money and care
provided by the commissioning parents, but her health may not be that good in future.
Thus, the human right to health in a surrogacy arrangement involves the question of health
of the surrogate mother, the surrogate child, the genetic parents and the commissioning
parents.
In India, women are generally not as healthy as they are in developed countries due
to the poor nutrition levels since childhood. Thus, the talk about their right to health,
human rights or reproductive rights becomes meaningless. It seems that the remedy of
surrogacy to the basic problem of infertility is generating new problems, which seems
sometime more complicated and risky than the original problem in itself.
1.2 Understanding the Meaning of Surrogacy:

According to Black’s Law Dictionary, the word ‘surrogate’ has its origin in the
Latin word ‘surrogatus’, meaning a substitution or replacement, i.e., a person appointed to
act in the place of another.17 The term ‘surrogate mother’ or ‘surrogate’ is usually applied
to the woman who carries and delivers a child on behalf of another couple. It is considered
as a ‘blessing’ and ‘miracle of science’.
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 of carrying it to term and handing over the child to the
person(s) for whom she is acting as surrogate. The surrogate is a woman who agrees to
have an embryo generated from the sperm of a man who is not her husband, and the
oocyte for another woman implanted in her womb to carry the pregnancy to full term and
deliver the child to its biological parent(s). In medical parlance, the term ‘surrogacy’
means using of a substitute mother in the place of the natural mother. The surrogate
mother bears a child on behalf of another woman, either from her own egg, wherein the
procedure is called ‘straight or partial surrogacy’ or from the implantation in her womb of
17
Garner, Bryan A., Black’s Law Dictionary, 9th ed. 2009.
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a fertilized embryo from another woman, wherein the procedure is called

‘gestational/full/host/IVF surrogacy’.18
In partial or natural surrogacy, also known as traditional surrogacy, the
commissioning mother has no role to play. The surrogate mother provides her own egg,
which is fertilized by artificial insemination, carries the foetus and gives birth, to a child
for another person. She gestates the child which makes her the biological or genetic
mother of the child. The child may be conceived via artificial insemination using fresh or
frozen sperm or impregnated via IUI (intra-uterine insemination), or ICI (intra-cervical
insemination) performed at a health clinic. The child that results is genetically related to
the surrogate and to the male partner but not to the commissioning female partner. The
harvested child shares the genetic make-up of the surrogate mother and the commissioning
father. Women who have dysfunctional or non-functional ovaries due to premature
menopause may resort to the option of receiving the egg by donation. A woman, who is at
risk of passing on a genetic disease to her offspring, may opt for traditional
surrogacy. Women who are suffering from medical problems such as diabetes, heart and
kidney diseases and whose pregnancy may be life threatening, may select traditional
surrogacy, if their long term prospects for health are otherwise good. However, traditional
surrogacy is given a commercial angle when the surrogate mother is implanted with a
fertilized egg, which might be fully genetically related to the intending parents or only to
one of them and carries the baby to full term, all in exchange for money.
On the other hand, in gestational or total or IVF surrogacy, the child has the
genetic combination of the commissioning parents. The ‘genetic mother’ provides the egg,
which is fertilized by in-vitro fertilization and another woman, i.e., surrogate mother
carries the foetus in her womb and gives birth to the child. Thus, in this method an embryo
is created by the process of IVF/test tube in a laboratory, which is done by combining the
genes of both the commissioning parents, which is then implanted into the womb of the
surrogate mother. This is where a woman, i.e., the surrogate mother, carries a pregnancy
created by the egg and sperm of genetic couple. After the birth of the child, the gestational
carrier or the surrogate mother hands over the child to the biological parents or adopted
parents to be raised by them and assigns her parental rights to them. Here, the carrier
is not genetically related to the child. With gestational surrogate motherhood,
18
Rao, Mamta, Surrogacy: The Ethico-Legal Challenge, January 2012, Vol. XIII, Issue-1, pp.12-14.
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the commissioning couple is the genetic parents of the child.

Gestational surrogacy creates a new situation in which a child has not
one, but two biological mothers - one genetic and the other gestational.
The gestational surrogacy involves the following categories of
women: -
a) Women with congenital absence of the uterus,
b) Women who have had a hysterectomy for hemorrhage, but they
still have functional ovaries,
c) Women who have suffered repeated miscarriages and for whom
the chance of ever carrying a baby to term is too remote, and
d) Women who repeatedly fail to implant normal healthy embryos in
treatment by IVF.
There is another classification of surrogacy arrangements which can either be
‘Commercial’ or ‘Altruistic’. In ‘Commercial Surrogacy’, the gestational carrier/surrogate
mother is paid apart from medical and other reasonable expenses, to carry a child to
maturity in her womb. This is usually resorted to by the higher income infertile couples
who can afford the cost involved in the surrogacy arrangement and can complete their
dreams of becoming parents. The surrogate is not only reimbursed but also paid a sum
above her surrogacy related expenses as compensation for surrogacy services provided by
her. Commercial surrogacy is indeed a modern practice as opposed to traditional
surrogacy. Infertility of either of the partners and the desire for a child has led them to
fetch for alternate ways of child bearing. The development of assisted reproductive
technology has made it possible for childless couples to have a child to be born through a
surrogate mother to whom the child is not genetically related. This procedure is practiced
on a large scale in several countries including India because of high international demand
and readily available poor surrogates, low cost of the treatment, illiteracy, lack of power
possessed by India women, lack of regulation of Assisted Reproductive Technology clinics
and better flexible laws. Clinics are also becoming more competitive not just in pricing,
but in the hiring and retention of Indian females as surrogates. The expression ‘wombs for
rent’ was coined when it became possible for fertilized eggs to be implanted and, thus,
grow to a full term baby in any womb, sometimes even with the help of cross-border
surrogacy mothers. This may also be termed as ‘outsourced pregnancy’ or ‘baby farms’.
Page | 13
In ‘Altruistic Surrogacy’ arrangement, unselfish concerns are shown for the

welfare of others by the surrogate mother and she receives no financial reward for her
pregnancy or for the relinquishment of the child, although usually all expenses related to
pregnancy and birth are paid by the intended commissioning parents. The carrier receives
no compensation besides medical and other reasonable expenses for carrying and
delivering the child. This is generally done by a friend or a close relative 19 who is paid
only the necessary related expenses and there is no reward to the surrogate.
Under the surrogate parenting, as already discussed, the surrogate mother can
either be a ‘genetic’ mother because it is her own egg that is fertilized and she, therefore,
has the genetic link with the child or she can be a ‘gestational’ mother because she carries
the child to the full term. Here the surrogate has no genetic relation with the child. This
type of surrogacy occurs when the intended mother’s already fertilized egg is implanted
into the womb of the surrogate mother. In addition to this, there are several other recent
advances in reproductive technology, e.g., Artificial Insemination by Donor (AID)
whereby the woman becomes pregnant without intercourse through artificial insemination.
Infertility clinics/centres in India such as that of Dr. Singh Test Tube Baby Centre
established in 2005 in the city of Meerut in Uttar Pradesh is truly a baby making factory. It
involves one of the women from their database of prospective surrogates and arranges
meetings with the infertile couples. Many a times, the couples seeking surrogacy are
foreign couples and they are assisted by such type of infertility clinics in their endeavour
to be parents. These clinics also arrange donors of gametes when required, determine the
money involved, arrange for legal help to work out the terms of the surrogate agreement
and the benefits to each of the parties, supervise the pregnancy of the surrogate mother,
monitor her during the gestation period, successfully deliver the child, obtaining of birth
certificates from the municipal corporation and the final formalities to ensure that the baby
is handed over to the intending parents. In turn, a surrogate receives the due sum of money
for carrying the fetus to term. She is made responsible for any hurt inflicted on the fetus if
she does not fulfill her responsibilities and commitments intentionally or negligently. A
surrogate should consider the physician’s medical advice including medication, food and
19
In September 2012, Casey gave birth to her grandson when her daughter struggled with infertility. Her
daughter’s egg and her son-in-law’s sperm were used in in vitro fertilization procedure, making the couple
biological parents of the surrogate child born through his grandmother;
accessed from http://abcnews.go.com/blogs/health/2012/09/04/surrogate-mother-61-gives-birth-to-her-
grandson/; last visited on 25/01/2013; time 11:00 am (IST); place Meerut, Uttar Pradesh, India.
Page | 14
any other conduct which is harmful for the fetus. She also commits to relinquish the new-
born baby to intended parents after the baby is born. Once the surrogate is pregnant, the
health of the child will depend on her behavior and particularly whether she smokes,
drinks or takes other drugs. The commissioning parents will wish the surrogate to desist
from these activities. The prospective surrogate must declare that she will not use drugs
intravenously, undergo blood transfusion excepting of blood obtained through a certified
blood bank, and avoid sexual intercourse during the pregnancy. A potential surrogate must
also be in overall good mental and physical health and have no known significant medical
or social factors, such as obesity, heavy drinking or smoking.
When parents are unable to conceive a child biologically, surrogacy has come as a
supreme savior and this has been made evident through the discussion in the light of
significant judicial decisions on surrogacy, particularly In Re Baby Melissa20 and Johnson
v. Calvert21 cases. In Re Baby Melissa case, the New Jersey Supreme Court, though
allowed custody to the commissioning parents in the “best interest of the child”, came to
the conclusion that surrogacy contract is against public policy. However, it must be noted
that the US, surrogacy laws are different in different states.
If the 1988 Baby Melissa case in the US forced many to put on legal thinking caps,
then that year also saw Australia battling with societal eruptions over the Kirkman Sisters’
case22 in Victoria. Linda Kirkman agreed to gestate the genetic child of her older sister
Maggie. The baby girl, called Alice, was handed over to Maggie and her husband at birth.
This sparked much community and legal debate and soon Australian States attempted to
settle the legal complications in surrogacy. Presently, in Australia commercial surrogacy is
illegal, contracts in relation to surrogacy arrangement are unenforceable and any payment
for soliciting a surrogacy arrangement is illegal.
In Johnson v. Calvert,23 Mark, Crispina and Anna Johnson signed a contract
providing that an embryo created by the sperm of Mark and the egg of Crispina would be
implanted in the womb of Anna and the child born would be considered as Mark and
Crispina’s child, to which Anna agreed that she would relinquish all parental rights to the
child in favour of Mark and Crispina. In return, Mark and Crispina would pay Anna
20
537 A.2d 1227 (N.J. 1988).
21
851 P.2d 776 (Cal. 1993).
22
Maggie Kirkman and Alice Kirkman, Sister-to-Sister Gestational Surrogacy, 1993.
23
851 P.2d 776 (Cal. 1993).
Page | 15
$10,000 in a series of installments, the last to be paid six weeks after the birth of the child.
Mark and Crispina were also to pay for a $ 2,00,000 life insurance policy on Anna’s life.
But unfortunately, relations deteriorated between the two sides. Mark learned that Anna
had not disclosed that she had suffered several still births and miscarriages. Anna felt
Mark and Crispina did not do enough to obtain the required insurance policy. She also felt
abandoned during an onset of premature labour in June. In July, 1990, Anna sent Mark and
Crispina a letter demanding the balance of the payments or else she would refuse to give
up the child. Mark and Crispina filed a law suit, seeking a declaration that they were the
legal parents of the unborn child. Anna also filed her own suit to be declared the mother of
the child.
The child was born on September 19, 1990, and blood samples were obtained from
both Anna and the child for analysis. The blood test results excluded Anna as the genetic
mother. The parties agreed to a court order providing that the child would remain with
Mark and Crispina on a temporary basis with visits by Anna. The Trial Court ruled that
Mark and Crispina were child’s “genetic, biological and natural father and mother” and
that Anna had no parental rights to the child, and that the surrogacy contract was legal and
enforceable against Anna. The Trial Court also terminated the order allowing visits to
child by Anna. The Court of Appeal and Supreme Court of California affirmed the
decision of the Trial Court.
Today, India’s rapidly expanding commercial surrogacy industry is dependent on
“gestational carrying” arrangements, in which the surrogate mother is not genetically
related to the child she carries. Rather, the sperm of the intended father fertilizes either the
ovum of a donor or the ovum of the intended mother and the resulting embryo is
implanted in the gestational carrier’s womb. This type of surrogacy is made possible
through In-Vitro Fertilization technology (IVF), where an embryo is created outside of the
womb in a test tube in a laboratory. Before the introduction of IVF procedures in 1987,
however, surrogates were impregnated with the sperm of the intended father through
artificial insemination. In this arrangement, called “traditional surrogacy,” surrogate
mothers contributed their own ovum and did bear a genetic connection to the child they
bore. In this particular socio-cultural context, any third-party form of reproduction
requires individuals to re-conceptualize procreation, reproduction, kinship and family.
Page | 16
Commercial surrogacy, which has been dubbed “reproductive outsourcing” and

“rent-a-womb” by popular consensus, provides a rich terrain for debate because it
provokes yet another disturbance of the imagined public/private sphere divide.
Commercial surrogacy, like commercial adoption, abortion, or sex work, places things that
are normally relegated to the private sphere (procreation, the maternal body, the feminine
body) into the public sphere (the capitalist market). When an element of reproduction
becomes a commercial service, issues of bodily exploitation and economic opportunity are
immediately called into question and when the service crosses national borders, as
gestational surrogacy has in the last decade, with transactions between women and
families of different cultures and vastly unequal social and economic statuses, questions of
consent and opportunity are even further complicated.
The surrogacy is a knotty issue in as much as it may deteriorate the relations
between the surrogate and her husband. Hence, the consent of the husband also appears to
be necessary before a surrogate mother enters into surrogacy arrangement. A husband can
prevent his wife from undergoing a surrogacy arrangement. A surrogate is not necessarily
a girl or a widow. If she is married, her husband has some rights and responsibilities.
1.3 Surrogacy and Religious Issues:

ART guidelines for Christians and Muslims are almost the same.
For all religions, artificial insemination with husband’s semen is
permissible. Judaism allows the practice of all techniques of assisted
reproduction when the oocyte and spermatozoa originate from the wife
and husband, respectively. Third party gametes are also unacceptable
to Muslims, so gamete donation, embryo-donation and surrogate
motherhood are not allowed. In contrast, for the Sharia sect, oocyte
donation, embryo donation and surrogacy within a frame of temporary
marriage arrangements are permitted. The attitude towards
reproductive practice differs among the various divisions of Christianity.
The practice of assisted reproduction is not accepted by the Vatican,
however, it may be practiced by Protestant, Anglican and other
denominations.
Page | 17
Fertility and parenthood are highly valued in Africa to the extent

that procreation is usually considered the most important purpose of
marriage. As a result, infertility is often associated with marital
instability and many other psychosocial consequences. Moreover, the
high premium placed on fertility may act as a relevant barrier to the
success of family planning strategies due to the wide-spread belief that
contraception may result in permanent infertility. There is, in principle,
an enormous demand for ART in African countries, especially because
most infertility cases are infection related and therefore best treated by
ART. Clinics providing ART are, however, still few and mostly in private
settings.
Latin America is a heterogeneous region with many different
cultural and sociological influences. The high prevalence of catholicism
has a great impact on reproductive issues. Although infertility is a social
stigma in Latin American societies, most countries do not consider ART
a priority. Public hospitals generally provide only infertility
investigations but cannot offer ART. Private centres exist but are very
expensive, and therefore ART is commonly perceived as a luxury for
wealthy couples.
1.4 Understanding of Surrogacy with Indian Reference:

Surrogacy is flourishing in India because commercial surrogacy has been legalized
by the Supreme Court since 2008 through the ratio of the decision of Baby Manji Yamada
v. Union of India,24 wherein the Supreme Court has held that commercial surrogacy is
permitted in India with a direction to the legislature to pass an appropriate law governing
surrogacy arrangements in India. The ratio of this case has increased the international
confidence for resorting to surrogacy in India and making India a very lucrative
destination for surrogacy. It is consequently causing a serious concern for the health of the
poor illiterate Indian women.
24
AIR 2009 SC 84.
Page | 18
Surrogacy is a very knotty issue in India due to non-enactment of laws on the

subject. Anand town in State of Gujarat is a hub of surrogate mothers. Not only this,
Indore city in Madhya Pradesh, Pune, Mumbai, Delhi, Kolkata and Thiruvananthapuram
are also emerging as surrogate centres because many childless foreigners from all over the
world are flocking here due to low cost, less restrictive laws, lack of regulation of ART
clinics and easy availability of poor Indian surrogate mothers. Generally, surrogacy
arrangements are drawn up in a random fashion and can be exploitative especially since
surrogates are mostly from weaker socio-economic sections of the society. It is essential
that the practice of surrogacy should be legally regulated to prevent victimization of both
the surrogate and intended commissioning parents.
The proposed research work tends to highlight that India is in an urgent need of
comprehensive legislations on the subject which can regulate and can have a check on the
use and misuse of surrogacy arrangements. It is apparent that surrogacy is increasing as an
industry in India and many clinics are providing these services to foreign couples and also
to Bollywood heroes and heroines who do not want to compromise their career which is
likely to be jeopardized due to maturity and de-shaping of the body of the female and they
find it easier to give their eggs and sperms and hire a womb on rent. These clinics work as
commission agents between the purchaser and donor/seller of the sperms or eggs.
It is high time for the Indian Parliament to study in details the national and
international perspectives on surrogacy and to understand the root of the problem and
provide a comprehensive legislation including the rules and regulations for combating and
controlling the use and misuse of surrogacy practices in India. The focus needs to be given
on legalizing altruistic surrogacy and at the same time prohibiting commercial one. It is
submitted that it is advisable to protect the society from onslaught of capitalism over
Asian poverty and stop the exploitation of poor women being used as machines.
The present research has also analyzed the issue of surrogacy in and around India.
For better analysis, examples from United States, United Kingdom and Australia etc. have
been taken care of with reference to social and economic conditions in India.
The research has also included thorough analysis of the guidelines provided by the
Indian Council of Medical Research (ICMR), the draft Assisted Reproductive Technology
(Regulation) Bill and Rules 2008, redrafted in 2010, by the Government of India (which is
yet to be passed by the Indian Parliament), the recommendations of the Law Commission
Page | 19
of India in its 228th Report on “Need for Legislation to Regulate Assisted Reproductive
Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy”.25
In the present research, the researcher has proposed a draft of ‘Surrogacy
Arrangement (Regulation and Control) Bill, 2015’ after critically analyzing the
weaknesses and shortcomings of ‘Assisted Reproductive Technology (Regulation) Bill,
2008 and 2010’ so as to evolve a comprehensive legislation on the subject.
1.5 Review of Literature:

The review of literature is a text of a scholarly paper, which includes the current
knowledge including substantive findings, as well as theoretical and methodological
contributions to a particular topic. It discusses published information in a particular
subject area. It can be just a simple summary of the sources, but it usually has an
organizational pattern. The summary contains a recap of the important information about
the source. It is divided into three parts. The first part discusses about the review of the
articles studied by the author during the course of her research. The second part analyzes
the books, the third part analyzes the law reports and other reports published by the
various governmental bodies discussing about surrogacy and the regulation of Assisted
Reproductive Technology clinics.
1.5.1 Articles:
1.5.1.1 Anil Malhotra and Ranjit Malhotra 26 in their article observed that despite
the legal, moral and social complexities that shroud surrogacy, there is nothing stopping
people from exploring the possibility of becoming a parent. Women who may choose to
‘rent’ their womb for a surrogate pregnancy are slowly shaking off their inhibition and fear
of social ostracism to bring joy to childless couples. India’s Assisted Reproductive
Technology (Regulation) Bill & Rules 2010 has also been analyzed by the authors, has
lacunae, lacks the creation of a specialist legal authority for adjudication and
25
See 228th Report of Law Commission of India, Need for Legislation to Regulate Assisted Reproductive
Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy, August 2009.
26
Malhotra, Anil and Malhotra, Ranjit, All Aboard for the Infertility Express, Commonwealth Law Bulletin,
March 2012, Vol. 38, No.1, pp.31-41.
Page | 20
determination of legal rights of parties by a judicial verdict and falls into conflict with the
existing laws prevailing in India.
1.5.1.2 Aniruddha Malpani and Anjali Malpani27 talked about assisted reproductive
technologies, which is one of the spectacular success stories of modern medicine. But
these advances have also come with innumerable government guidelines and laws, which
regulate the clinical practice of these procedures. Since IVF was first developed in the UK,
it is not surprising that the first country to regulate IVF technology was also the United
Kingdom. The Human Fertilization and Embryology Act passed in 1990 was enacted in
response to the report of the Inquiry Committee into Human Fertilization and Embryology,
i.e., the Warnock Report. The authors compared the legal position of United States of
America, wherein the government has found it not necessary to pass a federal law to
govern the practice of assisted conception in the United States, except for the requirement
of the 1992 Fertility Clinic Success Rate and Certification Act which are designed to
report the annual pregnancy success rates of each IVF clinic to the United States Center
for Disease Control and Prevention (CDC).
Surrogacy has been analyzed by the authors as one of the examples of how
difficult regulation of assisted reproductive technology can get. While surrogacy is an
accepted form of treatment worldwide, the nature of surrogacy contract and the legal
status of the child vary from country to country. For example, in United Kingdom, even
though the child genetically derived from one or both parents, the mother who gave birth
to the child and her partner are considered as the legal parents of a child born as a result of
a surrogacy arrangement until the legal parentage is transferred to the commissioning
couple by adoption. On the other side, the rules are completely different in California and
one is forced to wonder why so! Since infertile couples and their desire to have a child are
the same all over the world, such stark differences in regulations just mean that couples
are being forced to obey the rules which happen to prevail in their place of residence.
27
Malpani, Aniruddha and Malpani, Anjali, Regulating, Reporting and Validating ART: Are Guidelines,
Rules and Laws of Any Use?, In: Contemporary Perspectives on Assisted Reproductive Technology, 1st ed.
2006, pp.399-405.
Page | 21
1.5.1.3 Hon’ble Dr. Justice B.S. Chauhan28 in his article has made a comparison of
law and morality with surrogacy. In-vitro fertilization, artificial insemination and surrogate
motherhood has posed new challenges to marital relations between the spouses and may
have a serious impact on ethical and moral standards of the society. The author has
examined the issue of infertility in the light of constitutional rights guaranteed to every
citizen irrespective of his/her gender or his/her nationality. Article 21 of the Constitution
of India has been given a very expensive interpretation. The concept of surrogacy has been
explained through the ratios of the decided case laws of the courts in India. He has also
discussed 228th report of the Law Commission of India on ‘need for legislation to regulate
assisted reproductive technology clinics as well as rights and obligations of parties to
surrogacy’ and the Assisted Reproductive Technologies (Regulation) Bill, 2010, which is
pending for consideration before the Indian Parliament.
1.5.1.4 Babu Sarkar29 observes that with the enormous advances in medicine and
medical technologies, today 85 % of the cases of infertility can be taken care of through
medicines, surgery and/or the new medical technologies such as in-vitro fertilization. The
author talked about surrogate motherhood, wherein the surrogate mother agrees usually by
contract and for a fee, to bear a child for a couple who are childless because of the reason
that the wife is infertile or physically incapable of carrying a developing fetus. The
surrogate mother can be the genetic mother of the child where the sperm is put in her
ovary or she can be the gestational carrier where the embryo is placed in her womb. The
surrogate always carries on with the process of pregnancy with the intention of
relinquishing the child after birth.
The author in this article has also talked about two types of surrogacy, i.e., firstly,
traditional or complete surrogacy, wherein the eggs of the surrogate mother are used in
the conception of the child. The surrogate mother is genetically related to the child and is
thus considered the biological mother. In this process, the surrogate mother conceives the
baby by means of artificial insemination, usually with the sperm of the intended father. It
is a form of surrogacy in which the gestational carrier is paid to carry a child to maturity in
28
Chauhan, B.S., Law, Morality & Surrogacy – with Special Reference to Assisted Reproductive
Technology, Nyaya Deep, Vol. XIII, Issue 4, October, 2012, pp.3-17.
29
Sarkar, Babu, Commercial Surrogacy: Is it morally and ethically acceptable in India?, 2011, The Practical
Lawyer, December, S-11.
Page | 22
her womb. The second arrangement is gestational one, in which the wife/intended mother
is fertile but incapable of carrying a growing fetus. In such a situation, the child is
conceived by in-vitro fertilization, using the wife’s eggs and her husband’s sperm, but the
resulting embryo is implanted in the surrogate mother’s uterus. The author also talked
about another kind of surrogacy, i.e., altruistic surrogacy. It is a situation where the
surrogate receives no financial reward for the pregnancy or the relinquishment of the
child. It can also be termed as ‘women helping women’, where the surrogate agrees to
undergo pregnancy for helping the infertile couple without any consideration. Thus,
surrogacy arrangements involve gamete transfer, sperm transfer, egg transfer or both. The
author also discussed the legality of surrogacy arrangements through the ratios of various
cases decided by the courts in India and outside.
1.5.1.5 Dr. C. R. Jilova30 in his article analyzed that the gift of motherhood
regrettably is not distributed by God evenly to every woman. Though the case of infertility
can be found in men, women or in both. But with the advancement in scientific technology
there are many options for the infertile couples now, in comparison to earlier times, though
process of adoption is still favoured but the desire to have own blood and flesh has made
surrogacy an excellent option for the infertile couples. In India, surrogacy is a booming
industry of reproductive tourism, notwithstanding the fact that the Humans Organ Act,
1994 bans the sale of ‘human organs’, loaning of organs and any commercialization of
trade of human organs. Surrogacy involves a procedure of reproduction wherein a woman
gives birth to a child for an infertile couple who are unable to have a child of their own for
medical reasons but who desire to have their own children.
Infertility is a condition of the reproductive system that prevents the conception of
children. Scientific technology has provided opportunity for infertile couples to become
parents. The author has discussed two scientific methods through which a surrogate
mother can give birth to a child, i.e., in-vitro fertilization (IVF) and artificial insemination.
Surrogacy is a new age phenomenon and is gaining support from the world over.
Thereafter, the author has discussed about the historical background in relation to
the concept of surrogacy. The concept of surrogacy has also been discussed, wherein
30
Jilova, C. R., Surrogacy and Socio-Legal Challenges, Chotanagpur Law Journal, 2011-12, Vol. 4, No. 4,
p.153.
Page | 23
traditional, gestational, altruistic and commercial surrogacy has been explained. The laws
of various countries such as USA, Australia, Britain, and India relating to surrogacy have
been analyzed. As regards India, the author has specifically talked about ICMR Guidelines
and Law Commission Report on legalization of surrogacy.
1.5.1.6 Geneuiere H. Reyes and Hazel Rose B. See 31 examined the Artificial
Reproductive Technology (ART) contracts in the light of Philippine civil law, especially,
contract law. The paper outlined the different ART methods most familiar to Filipino
couples seeking fertility treatments, i.e., artificial insemination, in-vitro fertilization and
surrogacy. It also described what an ART contract is in general, as well as the specific
contracts that are executed for each ART procedure. The article also analyzed ART
contracts using a specific framework, the essential requisites of a contract and the probable
liabilities for breach of the contract. It concluded with an assessment of the applicability of
existing contract law to an ART contract.
1.5.1.7 Indo-Asian News Service32 describes that surrogacy in India is estimated to

be a $ 445 million business with India being the foremost in the world for the practice
because of the low cost of treatment and the ready availability of women willing to rent
their wombs to childless couples. Sooner or later, India needs to have laws enacted to
protect the Indian surrogate mothers and also to protect the foreigners who come here for
treatment. It was noted that in India surrogacy costs about $ 12,000 compared to $ 70,000
in the US. In this article, the views of participants at a moot court competition at Rizvi
Law College were gathered.
The participants discussed the main issue which shot the limelight, i.e., a surrogate
mother in Gujarat’s Anand town giving birth to a girl named Baby Manji who got
entangled in a legal battle as her Japanese parents had divorced before she was born. Her
father claimed her custody but the Indian laws did not permit this. He approached the
31
H. Reyes, Geneuiere and See, Hazel Rose B., Contracts To Make Babies: An Examination Of Artificial
Reproductive Technology From A Philippine Contract Law Perspective, Philippine Law Journal, 2001, Vol.
76, pp.198-209.
32
Indo-Asian News Service, Surrogacy a $445 mn Business in India, The Economic Times, Mumbai,
August 25, 2008.
Page | 24
Supreme Court of India and it granted Manji’s custody to her 74-year old grandmother
Emiko Yamada.
This article made the researcher analyze the actual situation of surrogate mothers
and the children born through such arrangements in India, which is reflected throughout
the thesis. The lack of laws in India has led to violation of the rights of the surrogate
mothers as well as the children born through such arrangements. Even the people of India
are throwing a light upon such an arrangement and discussions are happening at length
between the law students, the legal fraternity and the general public.
1.5.1.8 Jwala D. Thapa33 observed that the Assisted Reproductive Technologies

(Regulation) Bill, 2010 framed by the Indian Parliament is a new legislation that aims to
regulate the surrogacy industry for which India has become a preferred destination by
foreign citizens looking for “wombs for rent”. The paper aimed to descriptively analyze
the place of a surrogate in the general scheme of the Bill which focuses on the assisted
reproductive technology industry as such and of which surrogates are a part. The author
through this paper concluded that the Bill neglects most of the issues pertinent to the
interest of a surrogate making her a small player in the billion dollar industry but to which
she is a major contributor. In explaining this position, the author has analyzed other
aspects of the Bill also in detail while concluding generally that the Bill mainly thrusts the
power of regulating commercial surrogacy in private players of the ART industry instead
of giving her an independent berth. In fact, the Bill has been framed according to the
processes in which the industry runs at present and to which the surrogates thrust
themselves for money. Other ancillary shortcomings of the Bill, necessary to
understanding the role of a surrogate has also been dealt with in the paper by the author.
1.5.1.9 M. Srinivas34 observed that the feeling of motherhood is something
incomparable with any other experience in any society throughout the world. In a country
like India, with traditional taboos, a woman is respected as a wife only if she is mother of
a child. Because of infertility related problems couples are not able to conceive a child of
33
Thapa, Jwala D, Analysing the Status of the Surrogate Mother under the Assisted Reproductive
Technologies (Regulation) Bill, 2010, NUJS Working Paper Series, NUJS/WP/2012/01.
34
Srinivas, M., Assisted Reproductive Technology: Legal Issues, Andhra Law Times, 2010, Vol. 4, p.25.
Page | 25
their own, reproductive technologies like artificial insemination, in-vitro fertilization and
surrogacy becomes a ray of hope for these couples. Reproductive technology is treated as
a remedy for many problems which offers a wide range of choices. These methods are in
recognition of the fact that infertility as a medical condition is a huge impediment in the
overall well-being of couples and cannot be overlooked especially in a patriarchal society
like India.
In this article, the author has discussed the methods of Assisted Reproductive
Technology and Surrogate Motherhood. Much attention is being focused on the evolving
legal issues concerning surrogate motherhood and its implications to society in general
and to women in particular. Further, this article has highlighted the judicial responses to
the issues relating to surrogacy arrangements. The author has also presented some of his
comments on the draft Assisted Reproductive Technology Bill, 2008.
1.5.1.10 Majdah Zawawi35 provided an appraisal of countries that have legislations

pertaining to assisted reproductive technologies (ART). In doing so, the paper highlighted
the emphasis on the protection of reproductive freedom of the couples seeking ART
treatment. This belief is grounded primarily on the basic notion of liberalism that attaches
primary importance to respect for individual freedom, which is the foundation of the
notion of reproductive rights as understood by western standards today. The main aim of
the appraisal is to see how these legislations address the drastic changes in familial
relationships when ART involves the use of donated materials.
1.5.1.11 Majdah Zawawi36 analyzed that at a time when choices were limited
infertility was a malady that was feared by many and for a long time much could not be
done to alleviate the sufferings that infertility brought on many unfortunate couples.
However, with every suffering Allah has provided a cure as he promised: ‘for every
disease there is a treatment’. Indeed, man has proven the truth of this promise with the
35
Zawawi, Majdah, Donated Materials in Assisted Reproductive Technologies: An Ethico-Legal Analysis of
ART Legislations Worldwide, Journal of Medical Ethics and History of Medicine, 2010, pp1-9.
36
Zawawi, Majdah, Third Party Involvement in the Reproductive Process: Comparative Aspects of the Legal
and Ethical Approaches to Surrogacy, In: Chapter-13: Ethical Issues in Human Reproduction, In: Bioethics
and the Impact of Human Genome Research in the 21 st Century, The Proceedings of the 7th International
Bioethics Seminar in Fukui, Eubios Ethics Institute, 2001.
Page | 26
advancement in science and technology. Although the problem of infertility has not been
totally eliminated, scientists have been able to come up with better ways to help childless
couples fulfill their dreams of having a child. Moving from the more traditional use of
herbal concoctions, mankind can now depend on various forms of reproductive
technologies to assist them in their plight against infertility, with better accuracy.
The greatest breakthrough in modern reproductive technologies must have been

the birth of the first test tube baby, Louise Brown in 1978. Since then, scientists have
made tremendous progress in assisted reproductive technologies and have developed
various types of procedures to better address the problem of infertility. These technologies
include artificial insemination (AI), in vitro fertilization (IVF), gamete intra-fallopian
transfer (GIFT), zygote intra-fallopian transfer (ZIFT), intra cytoplasmic sperm injection
(ICSI) and the most recent possibility includes the use of nuclear transfer technology for
reproductive purposes in humans. The variety of treatments provides better success rates
in couples trying to have a child.
Nevertheless, as technology permits the fertilization of the sperm and the eggs to
occur outside the womb, the possibility to procreate is no longer restricted to married
couples only. True, legislations in certain countries, such as Section 13 (5) of the Human
fertilization and Embryology Act 1990, among others mentions that in considering a
woman for treatment, the welfare of the resulting child will be the primary concern and
the existence of a father is regarded as an important aspect of qualifying for the treatment.
However, the Act is also seen to adopt a tone of temperance by considering not only
married couples in matters pertaining to parental orders, but also couples who are in a
stable and subsisting relationship. In spite of the general importance placed on marriage,
the fact remains that the possibility to procreate is now wider and in some cases is
extended to involve third parties who are not originally a part of a subsisting family.
The involvement of third parties in the reproductive process can began as early as
conception. Artificial insemination and in vitro fertilization techniques using donor sperms
or with donor egg for example allows third party involvement even from the beginning of
the reproductive process. Other techniques include GIFT and ZIFT, which allows embryo
donation. These techniques bring about issues of the legitimacy of the resulting child and
parental responsibilities of the parties involved.
Page | 27
However, even more pressing problems arise when the sperm of the man is used to
fertilize the ovum that did not belong to his wife and where the husband and wife has
agreed to a surrogacy agreement. The situation becomes even more complicated as
question then arises as to the status of the commissioning father, his wife and the woman
hired to carry the baby. As cases have shown, more often than not, when brought to trial,
the Court is faced with a difficult duty to dispense justice to parties who have agreed to an
inequitable contractual bond where the injustice cannot be undone.
Although initially frowned upon, there is evidence to show that surrogacy

arrangements are more popularly accepted now than it was when first introduced. The
change in attitude can be seen not only in the rise of surrogacy contracts in both the UK
and the US but also in the judicial attitudes of the judges and law makers of both
countries. Nevertheless, the UK, which previously seemed to adopt a rather conservative
approach to surrogacy if compared to their American counterpart, has in the past couple of
years been more open and accommodative to surrogacy arrangements. The similarities and
differences between these two jurisdictions are highlighted in the first and second part of
this article. Despite attempts to reconcile the issues of reproductive rights to that of
respecting human dignity, the ethical debate rages on and this may be attributed to the
impact that surrogacy arrangements have left on the resulting child, the commissioning
parents, the surrogate mother and her family. It is submitted that despite the acceptance of
the procedure by certain quarters, the fact remains that surrogacy arrangements are selfish
and exploitative in nature and should not be encouraged nor condoned. The main focus
was on the legal and ethical position of surrogacy under the Malaysian laws, primarily its
position under the Shari'ah or Islamic laws and secondly, its position under the civil laws.
Here, comparisons were made to the legal situation under the Shari’ah and the Malaysian
civil laws to that of the UK and US. This is based on the differences found in the
philosophy of the law. The Islamic law aims at protecting the five important interests in
human life (Kulliyyah-al-Khamsah) and it does this by strict compliance to predetermined
legal principles which is steeped in moral basis, Western law places more emphasis on
man-made laws with differing moral standards which concentrates more on the exercise of
individual freedom.
Page | 28
Due to controversial nature of surrogacy, this project aims at primarily on the legal
and ethical implications of surrogacy arrangements in the UK and the US while comparing
it with the position under Malaysian laws. Thus, it is concluded with a comparison of
these three systems which ended with a contention that there is a vital need to include
moral and ethical considerations in determining the legality of the type of reproductive
technologies used by couples in their plight against infertility.
1.5.1.12 Mamta Rao37 talks about the origin of the term surrogacy, having origin in
the Latin word ‘surrogatus’, which means a substitute, i.e., a person appointed to act in the
place of another. A surrogate mother is a woman who gestates, conceives and carries a
baby within her uterus on behalf of another woman, either from her own egg or from the
implantation in her womb of a fertilized egg from another woman, on the agreement of
handing over the child to the person after birth. The author discussed that infertility of
either of the partners and the desire to have a child of their own, has led to these alternate
ways of procreation. She also discussed the meaning of surrogacy, various types of
surrogacy, i.e., partial/ traditional and total/gestational surrogacy.
Donor surrogacy is also discussed in this article, wherein there is no genetic
relationship between the child and the commissioning parents, as the surrogate is
inseminated with the sperm of an outside donor and not of the intended father. The author
even talked about ‘commercial or altruistic’ surrogacy arrangements. In the former, the
carrier gets compensated for carrying or delivering the child, apart from being
compensated for medical and other reasonable expenses. This is termed as ‘wombs for
rent’, ‘outsourced pregnancy’ or ‘baby farms’. In the latter, the carrier receives no
compensation besides medical and other expenses for carrying and delivering the child.
This is generally done by a friend or close relative, who is paid only the necessary related
expenses and there is no reward given to the surrogate.
The author also made a comparative analysis of surrogacy within India and
international scenario, as surrogacy laws are unsettled and vary from State to State. She
talked about surrogacy laws in Australia, United Kingdom, United States of America,
Canada, and last but not the least India. Through the ratios of decided case laws, report of
37
Rao, Mamta, Surrogacy: The Ethico-Legal Challenge, January 2012, Vol. XIII, Issue-1, pp.12-22.
Page | 29
the Law Commission of India, Assisted Reproductive Technology (Regulation) Bill, 2010,
the author has tried to portray the Indian legal scenario on surrogacy.
1.5.1.13 Byrn, Mary P. and Synder, Steven H.38 has elaborated in his article that
pre-birth parentage orders are often sought by parties to surrogacy agreements to formalize
the intent of the parties to the agreement before the child is born. Such orders declare the
intended parents to be the legal parents of the child. This article discusses the benefits of
such orders, as well as the difficulties in obtaining them. The availability and efficacy of
pre-birth parentage orders depends on many factors including the type of surrogacy
arrangement, the state law that governs the proceeding, and whether the parties are in
unanimous agreement. This article analyzes the various factors which impact whether
obtaining a prebirth parentage order is possible and whether such an order is enforceable
in several representative jurisdictions in the United States.
1.5.1.14 Dr. Monica Chawla39 in her article, felt a need for a new law. Surrogacy
is often seen as alternative to adoption, although adoption may be a part of the process.
The author talked about the definition of surrogacy, its kinds (traditional/partial and
gestational/total) and the problems involved in it. The concept of ‘rent a uterus’ in fact
may be readily acceptable in the more analytical frame of the mind with the argument that
‘at least the baby is made with our gametes, even though nourished in a rented body’.
Although offering to become a surrogate mother for an infertile couple might appear to be
an uncomplicated altruistic act, it is not an easy course or action. Equally the intended
parents may see surrogacy as the answer to their prayers; but they are also likely to have
concerns over the implication or their decision before proceeding.
The problems which confront surrogacy agreements pose a series of social, ethical
and legal issues which are evaluated carefully by the author in this article. There is always
a risk of transmitting infection, such as HIV or Hepatitis, to the surrogate mother from the
infected parents. A problem may arise in case of miscarriage or multiple births. In full
38
Byrn, Mary P. and Synder, Steven H., The Use of Prebirth Parentage Orders in Surrogacy Proceedings,
39 Family Law Quarterly 633 (2005).
39
Chawla, Monica, Surrogacy: A Need for a New Law, Civil and Military Law Journal, 2009, Vol. 45, p.189.
Page | 30
surrogacy, when more than one embryo is implanted into the surrogate mother’s uterus,
the risk of multiple pregnancy increases. Around 20 to 25 % of pregnancies resulting from
in vitro fertilization will result in a multiple pregnancy of twins or triplets, depending upon
the number of embryos implanted. This carries associated risks for both mother and babies
and there are serious implications for the intended parents of raising child from a multiple
pregnancy.
The author also discussed the lack of law regarding surrogacy in India. There is
only National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in
India issued by Indian Council of Medical Research (ICMR) in 2005. But these guidelines
are legally non-binding. The clinics that provide ART facilities take recourse to these
guidelines that state that the surrogate mother has to sign a contract with the childless
couple. But even then, it is not clear whether such a contract has any legal sanctity.
1.5.1.15 Nandita Adhikari40 has emphasized the relationship of medicine with law
which is age old and multi-faceted. Law and Medicine are both subjects with inherent
dynamism. They evolve with ongoing research and advancement in technology expanding
the dimensions further. This book is designed to provide a fundamental understanding of
the relationship of law with medicine and its eventual growth. An attempt is made to
address the new and emerging areas in this field such as surrogacy, donation and
transplantation of human organs, management of bio-medical waste, etc. All relevant
legislations, case laws and international documents in the field have also been made part
of this work.
1.5.1.16 Peter R. Brinsden41 describes that gestational surrogacy is a treatment

option available to women who suffer with medical problems, usually an absent uterus, to
help them have their own genetic children. IVF allows the creation of embryos from the
gametes of the commissioning couple and subsequent transfer of these embryos to the
uterus of a surrogate host. The indications for treatment include absent uterus, recurrent
miscarriage, repeated failure of IVF and certain medical conditions. Treatment by
gestational surrogacy is straightforward and follows routine IVF procedures for the
40
Adhikari, Nandita, Law and Medicine, Central Law Publications, Allahabad, 3rd ed. 2012.
41
Brinsden, Peter R., Gestational Surrogacy, Human Reproduction Update, Vol. 9, No.5, pp.483-491.
Page | 31
commissioning mother, with the transfer of fresh or frozen embryos to the surrogate host.
The results of treatment are good, as would be expected from the transfer of embryos
derived from young women and transferred to ®t, fertile women who are also young.
Clinical pregnancy rates achieved in large series are up to 40% per transfer and series have
reported 60% of hosts achieving live births. The majority of ethical or legal problems that
have arisen out of surrogacy have been from natural or partial surrogacy arrangements.
The experience of gestational surrogacy has been largely complication-free and early
results of the follow-up of children, commissioning couples and surrogates are reassuring.
In conclusion, gestational surrogacy arrangements are carried out in a few European
countries and in the USA. The results of treatment are satisfactory and the incidence of
major ethical or legal complications has been limited. IVF surrogacy is therefore a
successful treatment for a small group of women who would otherwise not be able to have
their own genetic children.
1.5.1.17 Radhika Rao42 believed that assisted reproductive technologies are

fundamentally conservative. Instead of threatening traditional families, assisted
reproductive technologies merely replicate them, allowing infertile couples to create
biologically-related children. There is much truth in this view. In the short run, it is clear
that courts and legislatures are straining to squeeze these technologically-formed families
into the traditional mold. Representative of this phenomenon are the state statutes that
provide that the ‘father‘ of a child created by the artificial insemination of a married
woman with donor sperm is the married woman's husband, and that the sperm donor
possesses no legal rights. By designating the husband as the legal father and by denying
the presence of the sperm provider, such statutes attempt to shore up the traditional
conception of the family.
Assisted reproductive technology possesses the potential to radically destabilize
and disrupt the traditional conception of the family, as is suggested by the fact that
conservative organizations such as the Catholic Church are deeply opposed to almost all
such technologies. At the most obvious level, assisted reproductive technologies enable
the formation of families by gay men, lesbians, single people, and post-menopausal
42
Rao, Radhika, Assisted Reproductive Technology and the Threat to the Traditional Family, 1996, 47
Hastings L.J. 951.
Page | 32
women, visibly assaulting the traditional image of the two-parent, heterosexual,

biologically-connected family. But when employed by heterosexual married couples to
produce families identical in all outward respects to the conventional model, assisted
reproductive technologies insidiously undermine the traditional paradigm from within in
three fundamental and potentially far-reaching ways. First, assisted reproductive
technologies threaten the traditional understanding of families as the mere reflection of
biological facts, revealing that they are instead social constructs. Second, assisted
reproductive technologies destroy the traditional opposition between the family and the
market by assembling families in the commercial exchange of reproductive goods and
services on the marketplace, rather than forging them from the loving interchange of those
entwined in close relationships and, in so doing, assisted reproductive technologies
promote a world of private ordering, where family ties are not automatically assigned by
biology, but are instead a matter of individual choice, and thus contingent and revocable.
Finally, by freeing families from biology and allowing families to be formed in the
marketplace, assisted reproductive technologies move us closer towards a world of private
ordering, where not only the form but also the content and the extent of family obligations
may become the product of individual choice. At the present time, family obligations
automatically and inevitably follow biological connections. Assisted reproductive
technologies, however, create families as a matter of individual agreement, moving
towards a model of contractual parenthood. Once again, Johnson v. Calvert best
exemplifies this phenomenon with its holding that motherhood is to be determined
according to the parties’ intentions. State statutes governing artificial insemination with
donor sperm also effectuate individual intent by expressly requiring a husband’s consent in
order to establish his fatherhood.
1.5.1.18 Vani Thappar, Narendra Malhotra, Jaideep Malhotra and Vidhu

Modgil43 emphasized the carrying out of intrauterine insemination (IUI) with either
husband’s or donor’s sperm for the infertile couples. It is considered as first line assisted
conception method, which is considered least invasive, cost effective and easy to learn.
The authors also described that at the end of the 18th century, the first successful pregnancy
43
Thappar, Vani and Malhotra, Narendra et. al, Intrauterine Insemination, In: Allahbadia, Gautam N. and
Merchant, Rubina, Contemporary Perspectives on Assisted Reproductive Technology, Saurabh Printers Pvt.
Ltd., Noida, 1st ed. 2006.
Page | 33
was reported, almost 100 years back when John Hunter advised a man with hypospadias to
inject his seminal fluid into his wife’s vagina with a syringe, which resulted in a normal
pregnancy. They even talked about Marion Sims artificially inseminating six women with
negative post-coital tests, with husband’s semen obtained from the vagina after
intercourse. Even the first case of human donor insemination was cited by the authors
which happened in 1884 in Philadelphia, USA. The aims of IUI, pre-requisites for
performing IUI, indications for IUI, timing of ovulation, method of sperm preparation, and
technique of IUI were also discussed.
1.5.2 Books:
1.5.2.1 Anil K. Dubey44 in his book has carried out extensive research that in the
field of reproductive physiology, including pre-implantation genetic diagnosis and
blastocyst culture. He conceived experts for a broad series of topics to contribute in the
field of infertility. The first chapter focuses on history of infertility, including in-vitro
fertilization, prepared by Dr. Jacques Cohen is a landmark contribution and contains well-
attributed first-hand information. This is followed by a very comprehensive work on ‘male
factor infertility’, written by Dr. Ashok Aggarwal, one of the leading investigators in this
field. He not only covered diagnosis, but also mentioned medical and surgical
management of male factor infertility. The section on ‘female factor infertility’ is also
comprehensive and involves the chapters written by well-recognized experts. The chapters
include: ovarian reserve testing, female reproductive aging, the molecular and genetic
basis of infertility, evaluation and diagnosis of female infertility, pre-implantation genetic
screening/diagnosis, procedures and protocols in in-vitro fertilization laboratory, and
integrating quality management into a fertility practice.
The area of fertility preservation includes cryopreservation of human embryos and
fertility preservation for women. Other interesting portions of the book include chapters
like third party reproduction, which explores the current status and future of third party
reproduction; sperm banking indications and regulations and oocyte donation program.
44
Dubey, Anil K., Infertility: Diagnosis, Management and IVF, Chapter-27, 2012 ed., Jaypee Brothers
Medical Publishers (P) Ltd., New Delhi.
Page | 34
Each chapter is covered well with insight and wisdom. Finally, the book is donated to the
future of infertility, including genetics and male infertility in the 22 nd century, assisted
reproductive technology and birth defects, emotional and social aspects of infertility
treatment and fertility testing and treatment in 2020.
1.5.2.2 The book written by Anil Malhotra and Ranjit Malhotra45 explores that
how the law struggles to keep pace with technology in an area involving the deepest
human instincts and feelings. Both the authors are amongst the best known Indian lawyers
in the United Kingdom. They have studied the scenario prevailing in India as well as UK
and have thus portrayed it in this book. They have analyzed that infertile childless couples
always had the option to adopt a child, despite legal complexities, but with the
development in science and technology the infertile childless couples thought to have the
child of their own flesh and blood. This has enabled infertile couples to become biological
rather than adoptive parents, despite problems with fertility and conception.
Sperm/egg/oocyte from an anonymous donor comes for their rescue.
As the Malhotras explain, the Indian scenario regarding adoption is such that the
Hindu Adoptions and Maintenance Act, 1956 prevents non-Hindus from adopting Hindu
children. Therefore, in-vitro fertilization is approached which is a more recent
development, because if the woman who supplies the egg cannot, after it has been
fertilized, have the embryo implanted in her own womb. That is where a surrogate mother
is needed, and that is mainly focused upon in this book. It is also much cheaper to find a
surrogate mother in India than in countries such as the USA and the UK, so couples,
whether of Indian origin or not, have been coming to India for this purpose in increasing
numbers – so much so that the Supreme Court has taken note of the pejorative terms being
bandied about, such as ‘wombs for rent’, ‘outsourced pregnancies’ and ‘baby farms’.
The authors have also given vivid examples of the problems that can arise in this
process of renting of a womb. The problem faced by Baby Manji, Israeli gay couple etc.
are quoted as examples in the book. But despite such difficulties, the market for Assisted
Reproductive Technology is booming in India, and as the Malhotra brothers complain, it is
completely unregulated. There are only non-binding guidelines laid down by the Indian
45
Malhotra, Anil and Malhotra, Ranjit, Surrogacy in India: A Law in the Making, Universal Law Publishing
Co. Pvt. Ltd., New Delhi, 1st ed. 2013.
Page | 35
Council for Medical Research. Very recently, however, new Visa Regulations have come
into force, which limit the issue of a Medical Visa for the purpose of making surrogacy
arrangements to married couples, whose marriage has subsisted for at least two years. This
will not be available to unmarried couples, gay couples or single people who want to
commission surrogacy, and they will not be allowed to use a tourist visa for this purpose.
These restrictions emanate from the Ministry of Home Affairs, and are purely an exercise
of executive discretion, without any involvement by the democratically elected legislature.
The authors have also discussed that the legislature is proposing to get involved
with the publication of the Assisted Reproductive Technology (Regulation) Bill. They
acknowledged that the aim is laudable which is to regulate the private clinics which have
been flourishing unchecked in a way that is wide open to abuse. But the authors subject
the Bill to a withering critique, showing up its many weaknesses and lacunae. One hopes
that these criticisms will be taken into account when the Bill makes its way through the
Indian Parliament. Its passage has not yet started, so the opportunity is there to make
changes.
1.5.2.3 Avanish Kumar46 talks about human right to health, wherein health is critical
for the realization of the four folds aims of life: ethical, artistic, materialistic and spiritual.
Health as a fundamental human right is indispensable for the existence of other human
rights. Internationally, the attempt to institutionalize health as a human right found its way
to the international conventions, pacts and directives. But mere de jure guarantees are
insufficient for the realization of the right to health.
1.5.2.4 The 3rd edition of this book on ‘research methodology’ by the authors C. K.
Kothari and Gaurav Garg47 has been made more structured to make the learning more
systematic. It may be noted, in the context of planning and development that the
significance of research lies in its quality and not in quantity. The need is for those
concerned with research to pay due attention to designing and adhering to the appropriate
46
Kumar, Avanish, Human Right to Health, Satyam Law International, New Delhi, 2007.
47
Kothari, C. K. and Garg, Gaurav, Research Methodology: Methods and Techniques, New Age
International (P) Limited Publishers, New Delhi, 3rd ed. 2014.
Page | 36
methodology throughout for improving the quality of research. The methodology may
differ from problem to problem, yet the basic approach towards research remains the
same. Keeping all this in view, this book has been written with two clear objectives, viz.,
(i) to enable researchers, irrespective of their discipline, in developing the most
appropriate methodology for their research studies; and (ii) to make them familiar with the
art of using different research methods and techniques. The efforts made by the authors in
the form of this book are assisting/will assist the researchers in the accomplishment of
exploratory as well as result-oriented research studies.
This book has been updated with more details to be added and some new chapters
are also added keeping in mind the need of advanced data analysis in social science
research. It is important to adopt an appropriate methodology in quality research. This
book provides the basic and advanced level discussion on research methodology so that
the researchers may become familiar with the art of using research methods and
techniques. This book can be taken as a well-organized guide for researchers in social
science and other disciplines.
1.5.2.5 Carl F. Goodman48 has systematically compared the US law and the
Japanese law on the legal issues across all the major fields of legal practice. In the last few
years, however, Japan’s legal system has changed drastically in the last few years. The
recommendations of the Judicial Reform Council have spurred both legislation and the
Supreme Court decisions in such diverse areas such as family law, labour law,
discrimination, the right to vote, documentary evidence in litigation, judicial review and
much else. This edition of the book follows the comparative structure.
The author an internationally known authority with extensive experience in

international practice, university teaching in both Japan and the US, and US government
service in Japan takes expert stock of these new developments, including the following:-
 liberalization of corporation law - outside directors, use of stock options, hostile

mergers, poison pill legislation and guidelines;
 the new system of lay/professional judges;
48
Goodman, Carl F., The Rule of Law in Japan: A Comparative Analysis, Kluwer Law International, The
Netherlands, 2008 ed.
Page | 37
 the liberalization of the rules under which parties to litigation may be required to
produce documents;
 certain categories of indirect discrimination and the limitations on conduct;
 the complete revamping of the education system for lawyers;
 the new Labour Court designed to settle employer/employee disputes more quickly
and effectively;
 the increased extent of a news reporter's privilege not to disclose sources;
 legislation designed to protect spouses from spousal abuse;
 new criminal law on police interrogation techniques;
 growth in judicial review including Constitutional and Administrative cases; and
 family law - surrogacy, adoption, international custody and differences in the
definition of ‘spouse’ for various purposes.
1.5.2.6 Debora L. Spar49 has described that despite legislation that claims to
prohibit it, there is a thriving market for babies spreading across the globe. Fueled by rapid
advances in reproductive medicine and the desperate desires of millions of would-be
parents, the acquisition of children, whether through donated eggs, rented wombs, or
cross-border adoption, has become a multi-billion dollar industry that has left science, law,
ethics, and commerce deeply at odds. In this book, Debora L. Spar argues that it is time to
acknowledge the commercial truth about reproduction and to establish a standard that
governs its transactions. In this fascinating behind-the-scenes account, she combines
pioneering research and interviews with the industry’s top reproductive scientists and
trailblazers to provide a first glimpse at how the industry works: who the baby-makers are,
who makes money, how prices are set, and what defines the clientele. Fascinating stories
illustrate the inner workings of market segments including stem cell research, surrogacy,
egg swapping, “designer babies,” adoption, and human cloning.
1.5.2.7 Elizabeth S. Ginsburg and Catherine Racowsky 50 talked about in-vitro

fertilization which gained recognition as a realistic treatment for infertility with the birth
49
Spar, Debora L., The Baby Business: How Money, Science, And Politics Drive The Commerce Of
Conception, 2006 ed.
50
Ginsburg, Elizabeth S. and Racowsky, Catherine, In Vitro Fertilization: A Comprehensive Guide, Springer
New York Heidelberg Dordrecht, London, 2012.
Page | 38
of Louise Brown in 1978. Since then, the evaluation of male and female infertility has
been refined and the field has made tremendous strides. Commercial development of
human menopausal gonadotropins greatly improved the efficiency of ovarian stimulation
and purification of FSH products and continued advancements, including the use of GnRH
analogs, has led to the development of a variety of ovarian stimulation regimens.
Improvements in ultrasound technology allowed ultrasound-guided oocyte retrievals to
replace the laparoscopic approach, decreasing the invasiveness of the technology.
The author also talked about the future of IVF. Embryo cryopreservation has
slowly moved from slow freezing as established in the early 1990s to vitrification, with
increasingly successful survival and pregnancy rates. This has led to the ability to
successfully cryopreserve oocytes, allowing fertility preservation to move closer to
standard care treatment for women facing loss of ovarian function due to surgery and
cancer treatment. In addition, the author also discussed the increasing acceptance of third
party reproduction which has led to increasing utilization of gestational carriers for
women with abnormal or absent uteri or those at high risk of carrying a pregnancy. The
economics of assisted reproductive technology (ART), restrictive ART regulation in some
countries, globalization of the world economy and widespread availability of information
through the internet has led to increasing cross border reproduction, with the individuals
or couples obtaining care in countries other than their own. While ART procedures too
often result in multiple gestations and high levels of stress in some patients, great efforts
are being made to move more aggressively towards elective single embryo transfer and to
provide emotional support for patients. The goal of this book is to provide a practical
resource for clinical and laboratory staff of in-vitro fertilization programs and to provide a
thorough understanding of ART for those beginning to familiarize themselves with these
procedures.
1.5.2.8 G. P. Singh51 has written 5th edition of the erudite work, which has achieved
immense popularity amongst the legal fraternity of India. The method of treatment of the
subject makes the book both interesting and instructive. The work is arranged covering
some very important topics dealing with special problems arising in the interpretation of
51
Singh, G. P., Principles of Statutory Interpretation, Wadhwa and Company, Nagpur, 5th ed. 1993.
Page | 39
statutes, supported by a wealth of judicial authorities. With an objective approach, even on

diverse points, the author has presented reasonable and lucid conclusions. The
Introduction itself is a good guide to lawyers and Judges for clearing any anomalies in the
rules of statutory construction as the author's approach in interpretation is purely Indian.
The analysis and originality in the treatment of the subject are refreshing. The several
aspects of the subject with which the author has dealt with make the book interesting not
only to academicians but also to practitioners, lawyers and Judges. The book is a
prescribed text for LL.B. students and for the Legislative Drafting course in the LL.B.
(Hons) programme. The important portions of the book portray the author's thinking on
the subject in its different aspects which is clear; his presentation of arguments is precise
and his style is simple and direct. The discussion of the different topics covered in the
respective chapters is supported by a wealth of authorities consisting of the writings of
jurists, and judgments, both Indian and foreign.
1.5.2.9 Geoffrey Sher, Virginia Marriage Davis and Jean Stoess 52 share that
approximately four million couples in the U.S. face infertility. For about 25 percent of
them prefer that in-vitro fertilization is the best option for conception, yet many couples
remain uninformed about the procedure. Written by one of the top in-vitro specialists in
the country, this book presents a clearly written, complete guide to alternative means of
conception. Now thoroughly updated and revised, this book discusses everything one
needs to know about IVF, including how to find and choose the best in-vitro programs,
what to expect as you go through the process, and what your chances are of achieving a
successful pregnancy. Designed to prepare couples for the complex and emotional process
of IVF, this new edition provides readers with the most accurate and current information
available. Written in non-technical terminology, this book is the perfect reference for
anyone facing this controversial and confusing procedure.
1.5.2.10 The authors Janet L. Dolgin and Lois L. Shepherd 53 connected broad
public healthcare issues with the concerns of the individual, and draws clear distinctions
between policy, law, and ethical considerations. Offering more than just landmark cases,
52
Sher, Geoffrey, Davis, Virginia Marriage and Stoess, Jean, In Vitro Fertilization: The A.R.T. of Making
Babies, West Street, New York, United States, 3rd ed. 2005.
53
Dolgin, Janet L. and Shepherd, Lois L., Bio-ethics and the Law, Aspen Publishers, New York, USA, 2nd
ed. 2009.
Page | 40
Dolgin and Shepherd presented a revealing survey of the full range of contemporary
healthcare issues, along with the various conflicts and confluences that surround them. A
multidisciplinary approach is adopted that combines sources of law with scholarship from
philosophy and sociological features. Thoughtful analysis of the discrepancies between
broadly applied rules of law and the more specific concerns of the individual coverage of
ongoing healthcare debates are also examined on several fronts. The ethical implications
of various means of financing healthcare, from managed care to medicare to universal
access shifting parameters of the provider/patient relationship in healthcare. The
arguments surrounding restrictions on embryonic stem cell research, physician-assisted
suicide, abortion, and use of genetic information arguments surrounding restrictions on
embryonic stem cell research, physician-assisted suicide, abortion, and use of genetic
information discussion of socio-economic factors that shape healthcare and healthcare
policy cradle-to-grave organization that traces a typical individuals experience in the
healthcare system starting from birth and continuing through adulthood look at the public
health implications of decisions by individuals as healthcare consumers/patients.
1.5.2.11 The book co-authored by John William Salmond and Patrick John
Fitzgerald54 explained the meaning of jurisprudence, nature and value of jurisprudence,
advantages of studying jurisprudence, along with what is law, schools of jurisprudence,
their historical jurisprudence as explained by Jeremy Bentham, John Austin, Hans Kelsen
etc.
1.5.2.12 Kanthi Bansal55 talked about Intra Uterine Insemination (IUI), stimulation
protocols for IUI laboratory set-up and equipments rationale and technique of IUI donor
insemination. The author talked about case studies regarding reproductive physiology in
relation to IUI and IVF semen analysis sperm preparation techniques ovarian hyper-
stimulation syndrome (OHSS) and cryopreservation counseling in-vitro fertilization. He
introduced indicative steps of in-vitro fertilization and embryo transfer, stimulation oocyte
54
Salmond, John William and Fitzgerald, Patrick John, Salmond on Jurisprudence, Sweet & Maxwell,
London, 1966 ed.
55
Bansal, Kanthi, A Handbook of Intrauterine Insemination and In-vitro Fertilization, Jaypee Brothers
Medical Publishers (P) Ltd., New Delhi, 1st ed. 2003.
Page | 41
retrieval fertilization, embryo transfer, laboratory aspects success rate and complications
oocyte and embryo donation economics of IVF.
1.5.2.13 Kamini A Rao and Christopher Chen’s56 book presents an entire plethora
of all possible surgical procedures in the treatment of infertility which can be carried out
by endoscopy.
1.5.2.14 Assisted Reproduction is one of the fastest growing areas of medicine.

Having been introduced in 1978 with the birth of Louise Brown, the world’s first test tube
baby , the field of infertility has been broadened so far that it is no longer a mere sub-
category of gynaecology, but is in fact a major medical discipline. The second edition of
‘The Infertility Manual’ written by Kamini A Rao and Peter R Brinsden57 contains
innovations and case studies dealing with all aspects of human reproduction, viz., male
and female infertility, gene technology, blastocyst culture and assisted hatching, providing
information to both scientists and clinicians at all levels of expertise. Section 1 contains a
general overview of Patient Selection Counseling and Management; Transvaginal
Sonography in Infertility; Infections and Infertility; Immunology in Infertility;
Unexplained Infertility; Declining Fertility. Section 2 provides for Endocrinological
Disorders of Infertility - Hyperprolactinemia and Thyroid Disorders; Luteal Phase Defect;
Polycystic Ovarian Syndrome; Hirsutism; Fertility Treatment in Primary and Secondary
Amenorrhea; Obesity in Infertility Practice. Section 3 is more specific on Male Factor
Infertility Cytogenetics of Male Infertility; The Human Sperm - Its Contribution to
Fertilization and Embryogenesis; Male Fertility. Section 4 is specifically about Female
Factor Infertility Uterine & Cervical Factors in Infertility; Tubal Factor of Infertility and
Assisted Reproduction; Evaluation of Fallopian Tube in Infertility; Female Infertility
Surgery; Endometriosis and Infertility; Ectopic Pregnancy; Role of Fibroids in Infertility;
Enigma of Implantation. Section 5 is about Ovulation Induction Superovulation Strategies
in Assisted Conception; Monitoring of Ovulation Induction; Ovarian Follicular
Stimulation Regimens in ART.
56
Rao, Kamini A and Chen, Christopher, Endoscopy in Infertility, Jaypee Brothers Medical Publishers (P)
Ltd., New Delhi, 1st ed. 2007.
57
Rao, Kamini A and Brinsden, Peter R, The Infertility Manual, Gopsons Papers Ltd., Noida, 1st ed. 2001.
Page | 42
1.5.2.15 Lily Srivastava58 in her book ‘Law and Medicine’ included thorough
deliberations of almost every law which has an impact on the medical practitioners and
hence the book may be used as a handbook by the legal and medical practitioners as well
as by the teachers and the students. The author has rightly claimed that the book may also
be useful for the administrators who are responsible for planning and delivery of health
care. The book consists of many chapters, though they are not numbered. There are thirty
odd chapters in the book. One of the two chapters deals with very important aspect of the
modern technology, i.e., Artificial Reproductive Techniques and Surrogacy, which also
included the discussion about artificial insemination and in-vitro fertilization. The author
also discussed the guidelines on surrogacy as mentioned in accreditation, supervision and
regulation of ART clinics, formulated by Ministry of Health & Family Welfare & ICMR.
She also discussed about the legitimacy of the child born through such an artificial
arrangement through the ratios of the decided case laws. Also the ART Bill has been
discussed which has been drawn up to monitor fertility clinics coming up across the
country. The Bill will soon be converted into a law covering all aspects including
surrogate motherhood, the rights of the various parties involved and the well-being of such
children.
1.5.2.16 M. D. A. Freeman59 revised the book written by Lord Lloyd. Lord Lloyd in
this book stated the aims of the title so as to provide the students of jurisprudence with a
textbook which will enable him/her to become acquainted with the theories, attitudes and
insights of leading jurists from selected texts culled from their own writings and to afford
him/her a coherent picture of the subject, by means of a full commentary setting out the
background and inter-connections between the different approaches. This book also
throws light on Hohfeld’s analysis of ‘rights’, which he has used with what is meant
‘power’, because power has the ability to change legal relationships. Power is usually
parasitic on claim rights and privileges. The owner of property may sell it because he/she
58
Srivastava, Lily, Law and Medicine, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2010 ed.
59
Freeman, M.D.A., Lloyd’s Introduction to Jurisprudence, 8th ed. 2008.
Page | 43
has a title to it. But power may also exist independently of all sorts of rights. The term
‘right’ is also sometimes used by the author to describe the absence of a power.
1.5.2.17 Mark V. Sauer60 talks that the versatility of oocyte and embryo donation
has proven to be extremely valuable to both patients and doctors engaged in reproductive
medicine. Originally thought to be applicable only to a rather small subset of infertile
women, today busy practices commonly recommend the procedure and it is estimated that
nearly all of the 400 or more IVF programs in the United States provide these services.
Oocyte and embryo donation has established itself as a mainstay procedure within assisted
reproductive care, and the breadth, depth and complexity of practice is deserving of
focused attention.
Much has changed within the field of oocyte and embryo donation since the
publication of the first edition of Principles of Oocyte and Embryo Donation in 1998, thus
the need for a completely updated and more expansive text. The second edition of this
book provides an overview of the major issues affecting men and women engaged in the
practice of oocyte and embryo donation. A primary emphasis has been placed on defining
the standards of practice that have evolved over the past 30 years, clearly stating the
outcomes expected from adhering to these established protocols. Details of both the basic
science and the clinical medicine are presented together and attention is also focused on
the non-reproductive aspects inherent to this unique method of assisted reproduction that
involves opinions from lawyers, ethicists, mental health care professionals and
theologians.
Oocyte and embryo donation requires a working knowledge of the medicine, the
law and the ethics that underlies its foundation. This book is intended to serve as a
complete and comprehensive reference for all health care professionals that provide
services related to egg donation, reproductive endocrinologists, obstetrician-
gynecologists, and fellows and residents entering the fertility field.
60
Sauer, Mark V., Principles of Oocyte and Embryo Donation, Springer, 2nd ed. 2013.
Page | 44
1.5.2.18 The book written by Mehroo Hansotia, Sadhana Desai and Mandakini
Parihar61 is a state-of-the-art guide to the diagnostic workup of infertile couples and the
variety of contemporary treatment options. Topics covered include endoscopic and
sonographic tubal evaluation; the place of tubal surgery in the era of assisted reproductive
technologies; psychological factors in infertility; reasons for hormonal disturbances
causing anovulation; infertility caused by obesity and methods for optimizing the luteal
phase and the pre-implantation period. The authors have provided an extensive section on
assisted reproductive technologies which covers patients’ selection, technical procedures
and troubleshooting. The book also includes the management of male infertility and
surgical and non-surgical methods for sperm retrieval.
1.5.2.19 P. V. Young62 in his lucidly written and easy to read text book explains in
detail the concepts and theories necessary to understand the culture and social relations of
a group. The text covers native or foreign groups, social institutions, communities (rural as
well as urban) and social problems. His book talks about general overview and scope of
social research: general overview of a research project in process. Scope of social
research: contributions of our scientific ancestors and contemporary trail blazers.
Principles and techniques of social studies: general phases and principles of scientific
procedure. The use of historical data in social research. Field observation in social
research, questionnaires and schedules as aids in social exploration, the interview as a tool
in field research, use of case data in social research, basic statistical concepts and
techniques in sociological research, graphic presentation, research techniques used in
human ecology, guiding considerations in the analysis of research data.
1.5.2.20 R Ranjan63 describes that obstetrics and gynecology is a very challenging

field which requires combination of both clinical as well as surgical skills. This book
covers all the common problems in a comprehensive manner easily understood by the
students.
61
Hansotia, Mehroo, Desai, Sadhana and Parihar, Mandakini, Advanced Infertility Management, A FOGSI
Publication, Jaypee Brothers Medical Publishers (P) Ltd., New Delhi, 1st ed. 2002.
62
Young, P. V., Scientific Social Surveys and Research, Prentice-Hall of India Private Limited, New Delhi,
4th ed. 1994.
63
Ranjan, R, Postgraduate Obstetrics, Gynecology, Infertility and Clinical Endocrinology, Jaypee Brothers
Medical Publishers (P) Ltd., New Delhi, 1st ed. 2005.
Page | 45
1.5.2.21 Rubina Merchant, Goral Gandhi and N. Allahbadia 64 observed that the
progress in the field of assisted reproduction, particularly micromanipulation, now heralds
a new era in the management of severe male factor infertility, not amenable to medical or
surgical correction. By overcoming natural barriers to conception, in vitro fertilization and
embryo transfer (IVF-ET), subzonal sperm insemination, partial zona dissection, and
intracytoplasmatic injection of sperm (ICSI) now offer couples considered irreversibly
infertile, the option of parenting a genetically related child. However, unlike IVF, which
necessitates an optimal sperm number and function to successfully complete the sequence
of events leading to fertilization, micromanipulation techniques, such as ICSI, involving
the direct injection of a spermatozoon into the oocyte, obviate all these requirements and
may be used to alleviate severe male factor infertility due to the lack of sperm in the
ejaculate due to severely impaired spermatogenesis. ICSI may be performed with fresh or
cryopreserved ejaculate sperm where available, microsurgically extracted epididymal or
testicular sperm with satisfactory fertilization, clinical pregnancy, and ongoing pregnancy
rates.
However, despite a lack of consensus regarding the genetic implications of ICSI or
the application and efficacy of pre-implantation genetic diagnosis prior to assisted
reproductive technology (ART), the widespread use of ICSI, increasing evidence of the
involvement of genetic factors in male infertility and the potential risk of transmission of
genetic disorders to the offspring, generate major concerns with regard to the safety of the
technique, necessitating a thorough genetic evaluation of the couple, classification of
infertility and adequate counseling of the implications and associated risks prior to
embarking on the procedure. The objective of this study is to highlight the indications,
advantages, limitations, outcomes, implications and safety of using IVF/ICSI for male
factor infertility to enable a more judicious use of these techniques and maximize their
potential benefits while minimizing foreseen complications.
64
Merchant, Rubina, Gandhi, Goral and Allahbadia, N., InVitro Fertilization/Intracytoplasmic Sperm
Injection for Male Infertility, Volume 27, Issue 1, Deccan Fertility Clinic, Rotunda - Center for Human
Reproduction, Mumbai, India, Year 2011.
Page | 46
1.5.2.22 Roscoe Pound65 in his book has explained what is jurisprudence, history of
jurisprudence, schools of jurists, the end of law as developed in legal precepts and
doctrines, the nature of law, theories of law, scope and subject matter of law, sources,
forms, modes of growth, application and enforcement of law, analysis of general juristic
conceptions, the system of law. His monumental work is the culmination of a life devoted
to the study of the law and its philosophical underpinnings. One of the most important
contributions to the world’s legal literature of the century in which he advanced his views
on sociological jurisprudence, the school of thought he championed.
According to Pound, the law should be flexible to meet the changing needs of
society. More important, it must recognize the needs of humanity and take contemporary
social conditions into account. Pound was a pre-eminent legal educator, scholar and
prolific author of influential writings on law. After private practice he was for many years
a law professor, dean of Harvard law school from 1916-1936, and in his later years taught
all over the world.
1.5.2.23 Sayantani Dasgupta and Shamita Das Dasgupta 66 in their book in chapter
one talked about the three 'M's of Commercial Surrogacy in India: Mother, Money, and
Medical Market. In chapter two they discussed reconceiving surrogacy: toward a
reproductive justice account of Indian surrogacy. Chapter three talked about gestational
surrogacy in India and the problems of technology and poverty. In chapter four the shifting
sands: transnational surrogacy, e-motherhood, and nation building has been discussed.
Chapter five is about the power of narratives, negotiating commercial surrogacy in India.
Chapter six is about the rhetoric of the womb, the representation of surrogacy in the
popular mass media in India. Eight is about the mother India and outsourcing labor to
Indian surrogate mothers.
1.5.2.24 Sushma Deshmukh67 talked about infertility management which is a

dedicated effort to platform the various causes of infertility, the investigations warranted,
65
Pound, Roscoe, Jurisprudence, Vol. 1, Part 1, St. Paul, Minn., West Publishing Co., 1959.
66
Dasgupta, Sayantani and Dasgupta, Shamita Das, Globalization and Transnational Surrogacy in India:
Outsourcing Life, Lexington Books, Maryland, USA, 2014 ed.
67
Deshmukh, Sushma, Infertility Management, Jaypee Brothers Medical Publishers (P) Ltd., New Delhi, 1 st
ed. 2008.
Page | 47
and the therapeutic approaches to management in the most efficacious method, after a
successful first edition, now gives the reader a deeper and updated insight into the easy
and skillful management of infertility. The significance of making the right therapeutic
choice on the right patient at the right time on the basis of a sound diagnosis, in lieu of the
hurdles that obstruct success and the complications that beset the practice of ART, reads
loud and clear, much to the advantage of postgraduate medical students embarking on a
career in infertility practice, treating physicians, nurses, and patients alike.
1.5.2.25 The book authored by V. G. Padubidri and Shirish N Daftary 68 has

continued to provide basic foundations of this specialty since 1936. The overwhelming
response to the earlier editions and the commitments of the authors towards the students to
improve the quality of the book and to provide them with the latest knowledge prompted
the authors to bring out this new 15 th edition. The 14th edition was revised in 2008 and
added new tables, diagrams, highlighted the key points and also added a new chapter on
‘re-surgery’. In the 15th edition, the authors have added three more chapters on obesity,
pelvic adhesions and pre and post-operative care, besides minor surgical procedures with
the illustrations of the instruments. The authors have highlighted ‘obesity’ as a major
health problem globally, as it is linked to several health diseases such as hypertension,
gynecological problems. With increasing incidence of obesity the world over, it is
important to prevent and control obesity. New contraceptives have also developed to cater
to the growing demands.
1.5.2.26 W M Buckett and S L Tan69 observed that three decades have elapsed
since the historic birth of Louise Brown in England. The introduction of human in vitro
fertilization (IVF) as an approach to treating infertility set the stage for hundreds of
thousands of infertile couples who were ultimately to benefit from this exciting new
technology. As with many medical/scientific breakthroughs, the initial process has evolved
significantly from its prototype which involved a natural cycle, less than ideal monitoring
and laparoscopic egg recovery. During the 30 years since IVF became a reality, new drugs
68
Padubidri, V G and Daftary, Shirish N, Howkins & Bourne Shaw’s Textbook of Gynecology, Replika Press
Private Limited, Kundli, Haryana, 15th ed. 2011.
69
Buckett, W M and Tan, S L, Alternative Assisted Conception Techniques, in Brinsden, PR (ed.), A
Textbook of In Vitro Fertilization and Assisted Reproduction, 2nd ed. 1999.
Page | 48
and techniques have developed for follicle stimulation. Ultrasonography has come of age
and is now used for follicle monitoring, egg retrieval, embryo transfer and even detection
of early pregnancy. New cryopreservation techniques have enabled embryo, egg and
ovarian tissue storage. Further refinements include specialized growth media for embryos,
intracytoplasmic sperm injection, transdermal surgical sperm retrieval, pre-implantation
genetic diagnosis, egg donation and use of surrogate or gestational carriers. Couples
seeking correction of infertility problems have not been the only beneficiaries of the new
reproductive technologies.
1.5.2.27 The innovative book by Wendy Olsen70 for students and researchers alike
gives an indispensable introduction to key issues and practical metho ds needed for data
collection. It uses clear definitions, relevant interdisciplinary examples from around the
world and up-to-date suggestions for further reading to demonstrate how to gather and use
qualitative, quantitative, and mixed data sets. The book is divided into seven distinct parts,
encouraging researchers to combine methods of data collection:
 Data Collection: An Introduction to Research Practices
 Collecting Qualitative Data
 Observation and Informed Methods
 Experimental and Systematic Data Collection
 Survey Methods for Data Collection
 The Case-Study Method of Data Collection
 Concluding Suggestions for Data-Collection Concepts
A stimulating, practical guide which can be read as individual concepts from the methods
toolkit, or as a whole, this text is an important resource for students and research
professionals.
1.5.3 LAW REPORTS:
70
Olsen, Wendy, Data Collection: Key Debates and Methods in Social Research, SAGE Publications, New
Delhi, 2011 ed.
Page | 49
1.5.3.1 A full report on Infertility Treatments for Women: A Review of the Bio-
medical Evidence by the Women’s Health Council, Ireland stated that the use of assisted
reproductive technology is increasing in Ireland. The number of babies born as a result of
in vitro fertilization has more than doubled from 135 in 2000 to 301 in 2005. The main
reasons for the increase in couples seeking help for fertility problems is the trend for
delaying pregnancy until later in life, the increase in obesity, and the higher rate of
sexually transmitted infections. The demand for advice and treatment of fertility problems
is likely to increase over the coming years. Fertility treatments available to couples are
often complex. In order to make informed decisions on fertility treatment, couples need to
understand the treatment options available to them. The large volume of research on
fertility treatments, which is often of poor quality, makes it difficult to access reliable,
relevant and readable information. This makes the emotional decision making process
even more of a challenge.
1.5.3.2 228th Report of the Law Commission of India on Need For Legislation To
Regulate Assisted Reproductive Technology Clinics As Well As Rights And Obligations Of
Parties To A Surrogacy talks about the growth in the ART methods which is in recognition
of the fact that infertility as a medical condition is a huge impediment in the overall
wellbeing of couples and cannot be overlooked especially in a patriarchal society like
India. A woman is respected as a wife only if she is mother of a child, so that her
husband's masculinity and sexual potency is proved and the lineage continues. Some
authors put it as follows: The parents construct the child biologically, while the child
constructs the parents socially. The problem however arises when the parents are unable to
construct the child through the conventional biological means. Infertility is seen as a major
problem as kinship and family ties are dependent on progeny. Herein surrogacy comes as a
supreme saviour. The legal issues related with surrogacy are very complex and are to be
addressed by a comprehensive legislation. Surrogacy involves conflict of various interests
and has inscrutable impact on the primary unit of society viz. family. Non-intervention of
law in this knotty issue will not be proper at a time when law is to act as ardent defender
of human liberty and an instrument of distribution of positive entitlements. At the same
time, prohibition on vague moral grounds without a proper assessment of social ends and
purposes which surrogacy can serve would be irrational. Active legislative intervention is
Page | 50
required to facilitate correct uses of the new technology i.e. ART and relinquish the
cocooned approach to legalization of surrogacy adopted hitherto. The need of the hour is
to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit
commercial ones. The subject was suo motu taken up for study. Most important points in
regard to the rights and obligations of the parties to a surrogacy and rights of the surrogate
child the proposed legislation should include have been discussed in this report.
1.5.4 OTHER REPORTS:
1.5.4.1 A report by Sama-Research Group for Women and Health on Birthing A

Market (A Study on Commercial Surrogacy) overviews that India has seen an explosion of
fertility services that promise a cure for the allegedly increasing rates of infertility.
Assisted Reproductive Technologies (ARTs) assist in conception or in the carrying of
pregnancy to term, have proliferated unchecked, becoming a veritable ‘fertility industry’.
This industry is an integral part of the country’s expanding medical market and medical
tourism industry. Within this, particularly commercial surrogacy, the practice of gestating
a child for another couple or for an individual through the use of ARTs and in return for
remuneration, has drawn much attention and raised several ethical concerns.
In the absence of any kind of regulatory or monitoring mechanism for the ART
industry in India (including a national registry), it is difficult to arrive at the exact statistics
pertaining to the existing surrogacy industry. However, the sharp rise in the number of
surrogacy arrangements based on media reports and anecdotal evidence is a significant
indicator for estimating the scale and spread of the commercial surrogacy market. An
exponential growth in the industry is evident from the comparative figures over the years
that estimate it to be an industry worth more than USD 400 million. According to the
National Commission for Women (NCW), there are about 3,000 clinics across India
offering surrogacy services to couples from North America, Australia, Europe, and the
other continents. These figures reflect the status of India as the most favoured destination
for commercial surrogacy. In the Indian context, the following factors have created a
conducive environment for the expansion of the industry: lack of regulation;
comparatively lower costs in relation to many developed countries, for instance, Canada,
Page | 51
the United Kingdom, and the United States of America; shorter waiting time; the
possibility of close monitoring of surrogates by commissioning parents; availability of a
large pool of women willing to be surrogates, and infrastructure and medical expertise
comparable to international standards.
In this scenario, commercial surrogacy is often portrayed as a win-win situation. It

is seen to give ‘desperate and infertile’ parents the child they want, and to provide poor
surrogate women the money they need. In the face of this growing globalization of capital
and shrinking local avenues for jobs and resources, women from marginalized
communities and regions find themselves more impoverished, powerless and vulnerable.
For these women, access to work and occupations has decreased over time, while new
markets have opened up for both their sexual and reproductive labour. Commercial
surrogacy for the domestic and international markets is one such avenue and it is gaining
ground in many urban and semi-urban areas in India today.
1.5.4.2 The report by Glenda Emmerson71 portrays that surrogacy entails a

woman agreeing to bear a child, which is then transferred to other persons. Undeniably, it
is a contentious issue. Although surrogacy has occurred throughout history, the issue is
currently firmly on the public agenda. Most recently, this can be attributed to the birth of
the first “legal surrogate baby” in Canberra in August 1996. Prior to this event, surrogacy
had already returned to the public agenda due to a combination of factors, including
reports of surrogacies occurring (in Queensland and elsewhere), increases in infertility,
reductions in the number of children available for adoption and the advent of IVF
technology. This Research Bulletin examines the status of surrogacy agreements in
Australia. Specifically, a review of state and territory surrogacy legislation is undertaken.
Relevant common law provisions are also discussed. Uncertainty in the law relating to
surrogacy arrangements is found to exist. Arguments for and against the practice of
surrogacy are presented and policy options are reviewed.
71
Emmerson, Glenda, Surrogacy: Born For Another, Research Bulletin No. 8/96, ISSN 1324-860X, ISBN 0
7242 7342 5, Queensland Parliamentary Library, Brisbane, September 1996.
Page | 52
1.5.4.3 The research conducted by Sarojini N72 on Assisted Reproductive

Technologies was guided by the perspective that the relationship between reproductive
technology and its end user is governed by gender and further compounded by caste, class,
religion, ethnicity, sexual orientations and other social relations of power. As long as these
underlying currents are not identified, the concepts of choice, empowerment and rights are
merely words to be written on paper and these technologies will go on propagating a
gender bias in general and towards women’s health in particular. We felt strongly that we
had to take up the issues raised by ARTs. The emphasis of the research was to gain an
insight into the social, medical and ethical implications of ARTs, especially on women, as
they raised important issues at the societal level and therefore demanded serious
reflection, investigation and debate. However, while searching for material, analyses and
perspective on conceptive technologies, we found that the issue had not been adequately
addressed in the Indian context. With this understanding and this lacuna in mind, we felt
the need to delve into the ART industry that has been gaining ground with each passing
day.
1.5.4.4 The report of a WHO Scientific Group on Recent Advances in Medically

Assisted Conception emphasized on the procedures used in medically assisted conception,
what is known about the medical indications for specific procedures, their safety, and the
factors influencing their success. Procedures covered include in-vitro fertilization, gamete
intrafallopian transfer, and similar procedures, as well as established techniques for
artificial insemination by the husband or a donor. Addressed to the managers of
programmes for the treatment of infertility, the report makes a special effort to distinguish
procedures efficacy from those whose potential advantages remain to be confirmed.
Background information is provided in the opening sections, which outline the most
common causes of infertility and summarize the historical development of current
techniques for investigation and treatment. Subsequent sections address the need to reduce
the psychological stress linked to infertility and its treatment, and describe fundamental
ethical principles that should govern programmes for medically assisted conception,
72
N, Sarojini, Reproductive Tourism in India: Issues and Challenges, SAMA Resource Group for Women &
Health, 8 November, 2012.
Page | 53
particularly concerning protection of the human embryo and the use of human genetic
material.
Advances in in-vitro fertilization are covered in five sections. Information includes

an outline of the medical indications for treatment, followed by discussions of the
procedures and preferred protocols for the induction of multiple follicular developments
for oocyte fertilization and subsequent embryo culture and for intra-uterine and intra-
fallopian transfer. Details range from instructions for the checking, maintenance and
cleaning of laboratory items to a discussion of the dilemma created by the introduction of
drug regimes that induce multiple follicular developments and permit the harvest of
numerous oocytes. Results of in-vitro fertilization, embryo transfer and related procedures
are also reviewed in an effort to identify the many factors affecting success rates. Artificial
insemination is covered in three sections, which offers advice on the collection, storage
and preparation of donor semen, outline indications and techniques.
1.6 Research Objectives:

The present piece of work has the following objectives: -
1) To describe the problems relating to surrogacy
2) To examine the elements of surrogacy
3) To harmonize surrogacy with social norms
4) To harmonize surrogacy with existing and would be legal norms
5) To study the gaps left out in relation to the present norms proposed by ICMR and
Law Commission of India
6) To give solution to the problem of commercialization of surrogacy
7) To conduct a study in relation to the global networking of commission agents
8) To come up with certain suggestions or findings
1.7 Hypotheses:
Page | 54
In the beginning of this thesis, provisional hypotheses were framed and a mock
trial or pilot study was made by feeding the draft questionnaire to selected target groups so
as to see the functionality of hypotheses and the questionnaire. After careful analysis of
result of a pilot study, following hypotheses are framed. The result of this study will either
prove or disprove the following hypotheses: -
1) Whether surrogacy is a problem in the present social, legal and commercial set up in
India?
2) Whether surrogacy is affecting reproductive rights in general and health rights in
particular directly or indirectly?
3) Whether there is a need of any draft model surrogacy agreement between all the
parties to surrogacy arrangement?
4) Whether there is a dire need of a comprehensive legislation for regulation and control
of various types of surrogacy in India?
1.8 Scope and Limitation:
The scope of the present study in the first attempt is to analyze the present scenario
of surrogacy at national as well as international level. On the basis of the purpose of the
research, the scope of the present study is to determine the elements involved in the
problem related to surrogacy arrangement recognized by the society or by the nations.
Further confirmation of the same is done in the light of international norms. The research
deals with possible findings of the fact. These findings will be intended only as a guide
and will in no way limit the findings of any national and international organization. As the
proposed study is time bound study and further surrogacy is related with reproduction
which is creature’s boon for all, hence, only legal issues related with human right, health
right, reproductive right and commercial implications thereon are cardinal specifically
with regard to the Indian system. The research is in the form of pilot study covering
particular cities of India having a combination of multi-tasked, multi-ethnic, multi-lingual,
multi-class and multi-cultural society. The scope of the research is for global benefit
whereas area of the study is having the limitation of time, length, expenditure involved in
Page | 55
the research. The research may be utilized for some action plan or for the problems
highlighted and anticipated in the research.
1.9 Tools and Techniques:

The proposed research is in the form of a combination of doctrinal and non-
doctrinal methodologies. In the absence of any law on surrogacy in India, the ratio
decidendi73 of available cases is crystalized as a doctrinal tool of the research. The
empirical study has helped to test the hypotheses taken in the beginning of this work. The
interview and questionnaire method are the basic tools for collection and final analysis of
data.
The doctrinal research method has included performing analytical research through
the use of primary and secondary material such as library, books, journals, law
commission reports, report of Indian Council of Medical Research, internet etc. The books
available in the library of Indian Law Institute, Delhi; University of Delhi; National Law
University, Delhi; Supreme Court Judges Library, New Delhi; Indian School of
International Law, New Delhi; British Council; American Council; Sadar Patel Subharti
Institute of Law, Meerut; Netaji Subhash Chandra Bose Medical College of Swami
Vivekanand Subharti University, Meerut; Meerut College, Meerut; CCS University,
Meerut are thoroughly studied and researched. Where things are introductory and
observatory in nature, the method applied is descriptive. The related literature required
during the course of study has been procured from the libraries of NALSAR University of
Law, Hyderabad; National Law School of India University, Bangalore; NLIU, Bhopal and
RMNLU, Lucknow.
The present research has also included empirical study as a part of non-doctrinal
research, by way of survey, interview and case study method. Various clinics,
commissioning/genetic parents, doctors, involved mothers, father and child have been
interviewed during the course of the study. The study has conducted proper analysis of
available literature and data so that the correct position on the subject may be drawn. It is
understood that the proposed legislation Surrogacy Arrangement (Regulation and Control)
Bill, 2015 will not grow in vacuum. It needs its roots to go deep into the wishes of the
society. For this, interview and questionnaire methods of research methodology are used in
73
See Salmond, John William and Fitzgerald, Patrick John, Salmond on Jurisprudence, 1966 ed.
Page | 56
this work to elicit the real wishes of general public which includes doctors, lawyers,
prosecutors, surrogate mothers, surrogate children, genetic parents, commissioning
parents, ovum donors, sperm donors, nurses, clinical and para-medical staff and all those
who are instrumental in surrogacy arrangement. It is expected that the proposed new
legislation will suit the masses of our country.
Page | 57

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“Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

1.1 Historical Overview:

The first case of surrogacy/artificial insemination occurred in United States using a

However, in European cultures, while surrogacy has undoubtedly been practiced in

Assisted reproductive technology has now enabled both partners in a relationship

1.2 Understanding the Meaning of Surrogacy:

a fertilized embryo from another woman, wherein the procedure is called

the commissioning couple is the genetic parents of the child.

In ‘Altruistic Surrogacy’ arrangement, unselfish concerns are shown for the

Commercial surrogacy, which has been dubbed “reproductive outsourcing” and

1.3 Surrogacy and Religious Issues:

Fertility and parenthood are highly valued in Africa to the extent

1.4 Understanding of Surrogacy with Indian Reference:

Surrogacy is a very knotty issue in India due to non-enactment of laws on the

1.5 Review of Literature:

1.5.1.7 Indo-Asian News Service32 describes that surrogacy in India is estimated to

1.5.1.8 Jwala D. Thapa33 observed that the Assisted Reproductive Technologies

1.5.1.10 Majdah Zawawi35 provided an appraisal of countries that have legislations

The greatest breakthrough in modern reproductive technologies must have been

Although initially frowned upon, there is evidence to show that surrogacy

1.5.1.16 Peter R. Brinsden41 describes that gestational surrogacy is a treatment

1.5.1.17 Radhika Rao42 believed that assisted reproductive technologies are

women, visibly assaulting the traditional image of the two-parent, heterosexual,

1.5.1.18 Vani Thappar, Narendra Malhotra, Jaideep Malhotra and Vidhu

The author an internationally known authority with extensive experience in

 liberalization of corporation law - outside directors, use of stock options, hostile

1.5.2.7 Elizabeth S. Ginsburg and Catherine Racowsky 50 talked about in-vitro

statutes, supported by a wealth of judicial authorities. With an objective approach, even on

1.5.2.14 Assisted Reproduction is one of the fastest growing areas of medicine.

1.5.2.20 R Ranjan63 describes that obstetrics and gynecology is a very challenging

1.5.2.24 Sushma Deshmukh67 talked about infertility management which is a

1.5.2.25 The book authored by V. G. Padubidri and Shirish N Daftary 68 has

1.5.3 LAW REPORTS:

1.5.4 OTHER REPORTS:

1.5.4.1 A report by Sama-Research Group for Women and Health on Birthing A

In this scenario, commercial surrogacy is often portrayed as a win-win situation. It

1.5.4.2 The report by Glenda Emmerson71 portrays that surrogacy entails a

1.5.4.3 The research conducted by Sarojini N72 on Assisted Reproductive

1.5.4.4 The report of a WHO Scientific Group on Recent Advances in Medically

Advances in in-vitro fertilization are covered in five sections. Information includes

1.6 Research Objectives:

1.8 Scope and Limitation:

1.9 Tools and Techniques:

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