SURROGACY: SOME CONCEPTUAL DIMENSIONS

The Latin word "surrogatus," which means "a substitute or alternative," is where the word
"surrogate" originates.1 When referring to medical surrogacy, it refers to the practice of one
person becoming pregnant in lieu of another.2

In a similar vein, the Baby Manji ruling defined surrogacy as a reproductive technique in which
one woman steps in for another in order to conceive and give birth to a kid that she will not keep
but will instead give to a contractual partner.3

The shapes that surrogacy takes can vary depending on the reproductive techniques used. In a
partial surrogacy, there is no genetic relationship between the intended mother and the surrogate
child.4 In a full surrogacy, the ovum does not belong to the surrogate mother; instead, the
surrogate mother becomes pregnant through in vitro fertilisation. One can choose between
commercial and charitable surrogacy. When a surrogacy is motivated by non-financial factors
and human emotions, it is an altruistic arrangement. Money is the main motivator behind
commercial surrogacy. 5

India—The Emerging Surrogacy Services Destination

In India, the first surrogacy case was documented in 1994. The growing number of medical
facilities offering IVF, surrogacy, and artificial insemination is evidence of its appeal as a
medical phenomenon. The driving force is economics, with a third of the expense occurring in
the industrialised world.6 This, together with willing surrogates, has made India the industry

1
Law Commission of India, No. 228 of 2009 para 1.3, Need for Legislation to Regulate Assisted Reproductive
Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy.
2
Claudia Carr, Unlocking Medical Law and Ethics, (Routledge, 2014) 263.
3
Baby Manji Yamada v Union of India and Another (2008) 13 SCC 518.
4
Jyoti Bhakare, ‘Surrogacy- A Reality Eclipsed by Ethical, Social, Legal Issues-Indian Perspectives’ (2011) 2 IJLJ
80.
5
Ibid., See Vasanti Fadva, ‘Surrogacy, Issues and Complexities’, in Susan Golombok et al. (eds), Regulating
Reproduction, (Cambridge University Press 2015) 126, 164.
6
Ibid., See Jyoti Bhakare, ‘Surrogacy- A Reality Eclipsed by Ethical, Social, Legal Issues-Indian Perspectives’
(2011) 2 IJLJ 80.
leader in surrogacy.7 The state-of-the-art medical facilities in India serve as an added draw for
international couples looking for surrogates. India's centre for surrogacy is the Gujarati city of
Anand.8

There are some important moral and legal questions raised by surrogacy. From a cursory look,
surrogacy appears to be a desirable choice for all parties involved—financial security for the
surrogate mother and the possibility of parenting for infertile couples. This is far from the truth,
though. It has been noted that the two main causes of the women's need to serve as surrogates are
poverty and illiteracy. Many writers have referred to this coerced consent—which is the result of
circumstances—as reproductive colonialism because it cannot be seen as a statement of their
right to reproductive liberty.9 The concern of exploitation is not unjustified, given the majority of
female surrogates come from economically disadvantaged backgrounds. There is also concern
that the whole process of becoming a parent and raising children will become de-personalised,
which may eventually have an impact on family values and bonding, and that people may take
advantage of it to further their own agendas.

Legal Status of Commercial Surrogacy in India

It is unclear how surrogacy is governed by the Indian Constitution and whether it is lawful. It is
important to remember the legal framework in the United States, where a constitutional
guarantee of reproductive autonomy exists. The boundaries of this right include the freedom to
procreate without assistance from technology as well as the freedom to reproduce without
interference. Any restriction on this privilege is examined very carefully.

Both Indian citizens and non-citizens are entitled to certain fundamental rights under the
country's constitution. Articles 21 and 23 of the Indian Constitution are pertinent to this story
about surrogacy agreements. Both Indian citizens and non-citizens are guaranteed the right to life
and liberty under Article 21 of the Indian Constitution. Judicial activism has significantly

7
Anil Malhotra and Ranjit Malhotra ‘All Aboard for the Fertility Express’ (2012) 38 CLB 31.
8
Janet L. Dolgin & Lois L. Shepered, Bio Ethics and the Law, (3rd edn, Aspen, 2013) 69.
9
Katarina Trimmings and Paul Beaumont, ‘General Report on Surrogacy’ in Katarina Trimmings and Paul
Beaumont, International Surrogacy Arrangements: Regulation at the International Level (Hart Publishing, 2013)
444.
increased the scope of Article 21's protections, including rights to livelihood 10, right to privacy11,
and other areas. The Indian Constitution makes no mention of the right to reproductive
autonomy.

The Andhra Pradesh High Court established an individual's "right of reproductive autonomy" as
a component of his "right to privacy" in B. K. Parthasarthi v. Government of Andhra Pradesh.
The judges issued a warning against excessive intervention and restrictions on
procreation.12 There are still questions about whether surrogacy falls within the purview of this
right. The main issue in tying surrogacy and reproductive freedom together is the legal
framework that should govern surrogacy, whether it be an adoption agreement or a strictly
business transaction. But fundamental rights are not unqualified, and Article 21 required
limitations on life and liberty predicated on just processes set forth in legislation. In addition, a
court may rule that a surrogacy agreement is unconstitutional and unenforceable for public
policy reasons based on Article 23 of the Indian Constitution, which forbids forced labour and
human trafficking. Because surrogacy is a contractual agreement to transfer a baby in the future,
it may be construed as the selling of a baby for consideration, which would make it illegal. 13

Since surrogacy is a contractual arrangement for a medical procedure, there are certain issues
with the enforceability of such arrangements. There isn't yet comprehensive surrogacy legislation
in India. "Surrogacy" is further defined as a contract between a commissioning couple and a
surrogate mother who uses reproductive technology to assist one another. It requires the parties
to enter into a legally binding surrogacy agreement, guaranteeing that the Indian Contract Act
will uphold the enforceability of the agreement. It is not always easy to view a surrogacy
agreement as a contract, though. There are three types of contracts: general, special, and specific,
according to the Indian Contract Act. Determining the precise category for a surrogacy

10
Olga Tellis v Bombay Municipal Corporation, (1986) AIR SC 180.
11
R. Rajgopal v State of Tamil Nadu (1994) AIR SC 632.
12
‘Surrogacy Transaction – A Perspective on the Constitutional and Contractual Aspects (2015) 3(1) NLUJ LRev
134, 138.
13
Jwala D. Thapa, ‘The Babies M: The Relevance Of Baby Manji Yamada v. Union of India (UOI) and In the
matter of Baby M, (2011) 2 JILS 83, 86.
agreement may prove to be challenging. Furthermore, in order for a contract to be considered
legitimate, it must meet the requirements outlined in Section 10 of the relevant legislation. 14

The conditions under which a contract may be deemed invalid for unlawful object and
consideration are detailed in Section 23. These include things that are against the law;
agreements that are immoral or against public policy; and actions that, if allowed, would violate
the terms of other laws. In the context of surrogacy, the phrase "if permitted, would defeat the
provisions of law" can be read to mean that it would violate adoption laws. 15 The Hindu
Adoption and Maintenance Act 1956 forbade the use of any form of cash as a form of
consideration during the adoption procedure (Section 17(1)). The purpose of this ban was to
deter parents from transferring their children for financial gain. The goal of surrogacy
agreements is to transfer a kid in the future. Given that the two procedures have the same goal,
the aforementioned clause can be used to contest any payment made to the surrogate mother.

In the event if a surrogate mother declined to give up her parental rights over the child, what
rulings might be made by the courts?16 Could the surrogate mother be compelled to carry out the
terms of the contract, making it comparable to a standard commercial contract? Would that not
be against the country's public policy provisions?17 The public policy component completely
alters the cross-border surrogacy scene. Many countries have defined policies on surrogacy that
are based on their cultural, social, political, economic, and religious values. In the context of
surrogacy, the most significant public policy debate centres on the goal and purpose of the family
and parental institutions. The traditionalist believes that using surrogacy to produce and raise
children is illegal and goes against state policy.

14
Pikee Saxena, Archana Mishra, and Sonia Malik, ‘Surrogacy: Ethical and Legal Issues’, (2012) 37(4) Indian J
Community Med, 211, 213.
15
Alison Bailey, ‘Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy’, (2011)
26(4) Hypatia 715.
16
Charles P. Kindregan, Danielle White, ‘International Fertility Tourism: The Potential for Stateless Children in
Cross-Border Commercial Surrogacy Arrangements’, (2013) 36 Suffolk Transnat’l L Rev. 527.
17
Justice B.S. Chauhan, ‘Law, Morality & Surrogacy- with Special Reference to Assisted Reproductive
Technology’, (2012) 3(4) Nyaya Deep 3, 4.
 The Gujarat High Court held in the well-known Jan Balaz 18 case that commercial surrogacy is
never regarded as unlawful in India. The Law Commission of India Report supported it.
According to the report, the terms of the surrogacy agreement will remain contractual in nature,
requiring the surrogate mother's consent to bear the child, payment of all associated costs, her
willingness to give the child to the commissioning parents, and other requirements. The question
of whether surrogate agreements are immediately enforceable has not yet come up in Indian
court proceedings.

18
Jan Balaz v Anand Municipality & Ors (2010) AIR Guj 21.