1st Rustavi Journal Club Seminar

Surrogacy in India &its legal aspects

Commercial surrogacy banning in India
made couples find refuge in Georgia

Jinal Rathod, Riashree Penubothu, David melvin, Rajannan RJ, Kunhammaram Mashood, Shikha Suresh, Aryan Padmanabhan, Deepak Mathew, Ann Thomas.
5th year-IX semester(5th&6th group) & X semester(1st & 4th )

Introduction Legal aspects of surrogacy in India Arguments

• This article focuses on the commercial aspect of surrogacy in
India. ICMR guidelines,2005 FEATURES: In Favor In Opposition
• India has become a fertility tourism hotspot, with an
● Capping on the age of surrogate mothers of 45 years of age. The bill puts a complete ban on commercial surrogacy and allows altruistic surrogacywith a provision for
estimated 400 million dollars being spent by couples from ● No woman should be more than thrice a surrogate mother in her lifetime.
●
monetary compensation to the surrogate mother for medical expenses and insurance coverage during the A second chance for infertile Stems the belief that a woman
● A relative, friend, or an unknown person can act as a surrogate mother for a couple. pregnancy or any other prescribed expenses.
abroad. ● If a relative is acting as a surrogate mother then the relative should be in the same generation as the ● Surrogacy will only be permitted for the following reasons: couples. is a baby-making machine &
• Analyses the meaning of surrogacy in various aspects, legal commissioning mother.
● Requirement of the surrogate mother to register herself as a surrogate mother in her own name and to
provide all necessary details in relation to the commissioning parents such as names, addresses, etc.
✓
✓
Intending couples of Indian origin or an intending woman who suffer from proven infertility
Altruistic purposes
baby is a sellable commodity.
aspects, benefits & disadvantages of commercial surrogacy
228th Law commission report,2009
✓ Not for commercial purposes
✓ Not forthe sale of children, or prostitution Surrogacy is seen as a service Shortcut to earning huge sums of
✓ For any other disease specified through regulations

Types of surrogacy
● The couple opting for surrogacy should have a “certificate of essentiality” and a “certificate of eligibility” issued by money.
an appropriate authority.
● Surrogacy arrangement will continue to be governed by contract amongst parties, which will 1. Following condition are to be met before a certificate of essentiality can be issued to an intending
contain all the terms, But such an arrangement should not be used for commercial purposes. couple:
● A surrogacy arrangement should provide financial support for a surrogatechild in the event of the ✓ Certificate of proven infertility of both or any one of them A woman’s choice to enter a
death of the commissioning couple or individual before delivery of the child, or divorce between the
intended parents and subsequent willingness of none to take delivery of the child.
✓
✓
Order of parentage and the custody of the child issued by a Magistrate’s court
Insurance coverage for a period of 36 months with the provision for covering postpartum delivery surrogacy contract and to A woman may be forced to
● A surrogacy contract should necessarily take care of life insurance coverage for the surrogate
mother.
complications for a surrogate mother.
Following conditions areto be fulfilled before a certificate of eligibility can be issued to an intending receive a reward is her free enter surrogacy by her
Surrogacy is derived from the Latin word “subrogare” which ● One of the intended parents should be a donor as well because the bond of love and affection with
2.
couple:
family due to monetary
means appointed in place of. a child primarily emanates from a biological relationship. Also, the chances of various kinds of child ✓ The intending couple should be between the following agespectrum Wife between 23 to 50 yearsof age will and government
abuse will be reduced. In casethe intended parent is single, he or she should be a donor to be able to
benefits.

1.
Husband between 26 to 55 years of age
have a surrogate child. Otherwise, adoption is the way to have a child ✓ The couple should not have a surviving child irrespective of the fact that the child is biologically adopted, or interference should be nil.
Traditional/ Partial/ Natural
● 5. The legislation itself should recognize a surrogate child to be the legitimate child of the surrogate, except if the child is mentally or physically challenged or suffers from a life-threatening disease
commissioning parent(s) without there being any need for adoption or even declaration of Guardian. ✓ Other conditions which can be specified through regulations.
● Only the names of the commissioning parents must be mentioned on the birth certificate.
● Right to privacy of the donor as well as the surrogate mother should be protected.
The exploitation of women
● Prohibition of sex-selective surrogacy. ● Eligibility criteria for a surrogate mother- the following conditions must be fulfilled
by fertility clinics.
• Intending father donates the sperm. ● Casesof abortions should be governed by the Medical Termination of Pregnancy Act, 1971 only. 1.
2.
Surrogate mother has to be in close relation to the intending couple
Being a married woman with a child of her own
•
Assisted Reproductive Technologybill,
Conclusion
A 3rd male donates the sperm if the intended parents are 3.
4.
Must be in the 25 to 35 yearsof the age spectrum
Must not be a surrogate mother earlier
two females or a single parent. 5.
6.
Have a certificate of medical and psychological fitness
Surrogate mother cannot provide her gametes for surrogacy

2014 ● The child so born will be considered as a biological child of the intending couple. Further for the abortion of the

2.
surrogate child, the intending couple needs to have written consent from the surrogate mother and authorization for
the same from the appropriate authority, which must align with the provisions of the Medical Termination of Pregnancy

Gestational/ Full ● Only a woman who is between 21 to 35 years of age can act as a surrogate, Act, of 1971.
● The surrogatewill have the option to withdraw from surrogacybefore the implantation of the embryo in her womb.
● Mentions conditions under which a foreign couple can seek surrogacy in India ● Legalization of commercial surrogacy in 2002 to its ban in
● Compensation to be paid willbe a private arrangement between the One or more appropriate authorities will be appointed by the central and state governments whose function will be
commissioning parents and the surrogate, ART clinics have no role to play in it
●
as follows: 2019.
• Surrogate mother only acts as a carrier of the embryo. ● According to the bill, live-in couples, single parents, and homosexuals 1. Granting, canceling, or suspending the registrations of surrogacy clinics ● This may result in many unregistered clinics & middle man.
• Egg & sperm are from intended parents or anonymous
are disqualified from having a child through surrogacy 2. Taking actions against breach of the act
● Economic benefit from commercial surrogacy is huge for
Surrogacy Regulation bill, 2019
3. Authority will have the power to accept or reject the applications for certificate of eligibility and
surrogatemothers within a period of 90 days.
donors. ● National Surrogacy Board and State Surrogacy Boards shall be constituted by central and state governments. The India.

3.
Constitution of the National Surrogacy Board is directed under section 14 of the bill and the constitution of the State
Surrogacy Boards is given under section 23 of the bill. ● Strict laws regulating commercial surrogacy should be made
Commercial
The bill creates certain offenses which include:
The Surrogacy (Regulation) Bill, 2019 was introduced by the Union Cabinet, in the Lok Sabha on the 15th of July
2019, to promote altruistic surrogacy in India.
●
1. Penalty for undertaking and advertising commercial surrogacy rather than banning it completely.
According to section 4(ii) of the Surrogacy (Regulation) Bill, 2019, the following are the purposes for which 2. Exploitation of the surrogate mother
surrogacycan be permitted:- 3. Selling or importation of human embryos or gametes

Discussion
Disowning or abandoning the surrogate child
•
4.
● Not for commercialization
Acts as a surrogate mother for monetary benefits ● Only for altruistic purposes

4.
● Not for producing children for sale, prostitution, or another form of exploitation
● For couples who suffer from proven infertility' ● The above-mentioned offenses are mentioned under section 36 of the bill, whose contravention attracts a penalty

Altruistic
● Any other conditions as specified through regulations. of up to 10 yearsand a fine of up to 10 lakhs rupees
● Earlier the surrogacybill, 2019 was introduced in the year 2016 which lapsed with the dissolution of the 16th

Cases
Lok Sabha.
● The bill was examined by the Standing Committee on Health and Family Welfare which submitted its report on

•
August 2016.
No monetary benefits for the surrogate mom. ● A Rajya Sabha select committee chaired by Shri Bhupinder Yadav was constituted to review the Surrogacy ● Should be government regulated
•
(Regulation) Bill, 2019. The committee presented its report to the Rajya Sabha on 5th February.
Only the medical expenses of the surrogate mom are ● Should open clinics for surrogacy practices
covered by the intended parents.
Findings Jan Balaz v. AnandMunicipality: ● All surrogates should only be registered with a government
agency.
● Intended couples were Germans
● It is not important that a surrogate mother should necessarily be a "close relative". ● Twins produced from intending father’s sperm & an egg from an anonymous donor ● A screening test should be conducted
● A single woman i.e. a widow or divorced woman of Indian origin is allowed the option of ● Birth certificate issued as:
surrogacy.
● Increasing the period of insurance coverage provided to a surrogate mother from 16 months to 36
1.
2.
Commissioning father as twin’s father
surrogatemothers as their mother
● The amount of compensation should be decided and
months. regulated by the government.
“Motherhood: All love begins
● Omitting the 5-yearwaiting period for an infertile couple to avail surrogacyas provided in the ● Can’t secure a German passport since German law doesn’t recognize surrogacy as a means of becoming a parent.
definition of surrogacythe bill, therefore recommended changes in the definition of the word ● Issued Indian passport since the surrogate mother was an Indian national. ● A background check should be conducted on the intending
DILEMMA:
infertility.
● The order of custody and parentage as issued by the District Magistrate of a surrogate child is to be parents as is done for adoption.

and ends there”

considered as the birth affidavit of the child.

References
● The committee recommended that the ART bill which still awaits the nod of the parliament be A child born in India through surrogacy to a foreign couple having an Indian
taken up before the surrogacybill in front of the house, as it deals with the technicality aspect of surrogate mother is an Indian national or not?
surrogacy.
● Committee recommended a compensatory model of surrogacy as an altruistic model can lead to
the exploitation of a surrogate mother.

—Robert Browning Surrogacy Regulation bill, 2020 Singh M. Surrogacy in India and its Legal
Following the release of the report by the select committee, the Surrogacy (Regulation) Bill, 2020, was created by Aspects. (2020) J. Acclaims. 10. pp.1-17
incorporating the select committee's suggestions.

-ARDJ