Surrogacy refers to a contract in which a woman carries a pregnancy "for
another couple. Number of infertile couples from all over the World approach
India where commercial surrogacy is legal. Although this arrangement appears to
be beneficial for all parties concerned, there are certain delicate issues which
need to be addressed through carefully framed laws in order to protect the
rights of the surrogate mother and the intended parents.
The ever-rising prevalence of infertility world over has lead to advancement of
assisted reproductive techniques (ART). Herein, surrogacy comes as an
alternative when the infertile woman or couple is not able to reproduce.
Surrogacy is an arrangement where a surrogate mother bears and delivers a child
for another couple or person.
In gestational surrogacy, an embryo, which is fertilized by in vitro
fertilization, is implanted into the uterus of the surrogate mother who carries
and delivers the baby. In traditional surrogacy, the surrogate mother is
impregnated with the sperms of the intended father artificially, thus making her
both genetic and gestational mother. Surrogacy may be commercial or altruistic,
depending upon whether the surrogate receives financial reward for her
Commercial surrogacy is legal in India,(1) Ukraine, and California while it is
illegal in England, many states of United States, and in Australia, which
recognize only altruistic surrogacy. In contrast, countries like Germany,
Sweden, Norway, and Italy do not recognize any surrogacy agreements. India has
become a favorite destination of fertility tourism. Each year, couples from
abroad are attracted to India by so-called surrogacy agencies because cost of
the whole procedure in India is as less as one third of what it is in United
States and United Kingdom (10-20 lakhs).
Is Surrogacy Profitable for All?
At a glance, surrogacy seems like an attractive alternative as a poor surrogate
mother gets very much needed money, an infertile couple gets their long-desired
biologically related baby and the country earns foreign currency, but the real
picture reveals the bitter truth.
Due to lack of proper legislation, both surrogate mothers and intended parents
are somehow exploited and the profit is earned by middlemen and commercial
agencies. There is no transparency in the whole system, and the chance of
getting involved in legal problems is there due to unpredictable regulations
governing surrogacy in India.
Although in 2005, ICMR issued guidelines for accreditation, supervision, and
regulation of ART clinics in India, these guidelines are repeatedly violated.(2)
Frustration of cross border childless couples is easily understandable who not
only have to cope up with language barrier, but sometimes have to fight a long
legal battle to get their child.
Even if everything goes well, they have to stay in India for 2-3 months for
completion of formalities after the birth of baby. The cross border surrogacy
leads to problems in citizenship, nationality, motherhood, parentage, and rights
of a child.
There are occasions where children are denied nationality of the country of
intended parents and this results in either a long legal battle like in case of
the German couple with twin surrogate children or the Israeli gay couple who had
to undergo DNA testing to establish parentage or have a bleak future in
orphanage for the child.
There are incidences where the child given to couple after surrogacy is not
genetically related to them and in turn, is disowned by the intended parent and
has to spend his life in an orphanage.(3)
If we look upon the problem of surrogate mothers, things are even worse and
unethical. The poor, illiterate women of rural background are often persuaded in
such deals by their spouse or middlemen for earning easy money. These women have
no right on decision regarding their own body and life. In India, there is no
provision of psychological screening or legal counseling, which is mandatory in
After recruitment by commercial agencies, these women are shifted into hostels
for the whole duration of pregnancy on the pretext of taking antenatal care. The
real motive is to guard them and to avoid any social stigma of being outcast by
their community. These women spend the whole tenure of pregnancy worrying about
their household and children. They are allowed to go out only for antenatal
visits and are allowed to meet their family only on Sundays.
The worst part is that in case of unfavorable outcome of pregnancy, they are
unlikely to be paid, and there is no provision of insurance or post-pregnancy
medical and psychiatric support for them. Rich career women who do not want to
take the trouble of carrying their own pregnancy are resorting to hiring
surrogate mothers. There are a number of moral and ethical issues regarding
surrogacy, which has become more of a commercial racket, and there is an urgent
need for framing and implementation of laws for the parents and the surrogate
Assisted Reproductive Technology Legislation
The Indian government has drafted a legislation, earlier floated in 2008,
finally framed as ART Regulation draft bill 2010. The bill is still pending with
Government and has not been presented in the Parliament. The proposed law has
taken consideration of various aspects including interests of intended parents
and surrogate mothers. The proposed draft needs to be properly discussed, and
its ethical and moral aspect should be widely debated by social, legal, medical
personal, and the society before any law is framed.
The bill acknowledges surrogacy agreements and their legal enforceability.(5)
The surrogacy agreements are treated at par with other contracts under the
Indian Contract Act 1872 and other laws applicable to these kinds of agreements.
Both the couple/single parent and surrogate mother need to enter into a
surrogacy agreement covering all issues, which would be legally enforceable.
Some of the features of proposed bill are that an authority at national and
state level should be constituted to register and regulate the I.V.F. clinics
and A.R.T centers, and a forum should be created to file complaints for
grievances against clinics and ART centers.
The age of the surrogate mother should be 21-35 years, and she should not have
delivered more than 5 times including her own children. Surrogate mother would
not be allowed to undergo embryo transfer more than 3 times for the same couple.
If the surrogate is a married woman, the consent of her spouse would be required
before she may act as surrogate to prevent any legal or marital dispute.
A surrogate should be screened for STD, communicable diseases and should not
have received blood transfusion in last 6 month as these may have an adverse
bearing on the pregnancy outcome. All the expenses including insurance of
surrogate medical bill and other reasonable expenses related to pregnancy and
childbirth should be borne by intended parents. A surrogacy contract should
include life insurance cover for surrogate mother.
The surrogate mother may also receive monetary compensation from the couple or
individual as the case may be for agreeing to act as such surrogate. It is felt
that to save poor surrogate mothers from exploitation, banks should directly
deal with surrogate mother, and minimal remuneration to be paid to the surrogate
mother should be fixed by law.
The surrogacy arrangement should also provide for financial support for the
surrogate child in case the commissioning couple dies before delivery of the
child, or divorce between the intended parents and subsequent willingness of
none to take delivery of the child so as to avoid injustice to the child.
A surrogate mother should not have any parental rights over the child, and the
birth certificate of the baby should bear the names of intended parents as
parents in order to avoid any legal complications. Guidelines dealing with
legitimacy of the child born through ART state that the child shall be presumed
to be the legitimate child of the married/unmarried couple/single parent with
all the attendant rights of parentage, support, and inheritance.
The ART clinics should not be allowed to advertise for surrogacy for its
clients, and couples should directly seek facilities of ART Bank. The intended
parents should be legally bound to accept the custody of the child/children
irrespective of any abnormality in the child/children. Confidentially should
always be maintained, and the right to privacy of the donor as well as surrogate
mother should be protected.
If a foreigner or NRI is seeking surrogacy, they should enter an agreement with
written guarantee of citizenship for the child from their government, and they
should also appoint a local guardian who would be legally responsible for taking
care of the surrogate during and after the pregnancy till the child is delivered
to the foreigner couple or reaches their country. Sex-selective surrogacy should
be prohibited, and abortions should be governed by the Medical Termination of
Pregnancy Act 1971.(6)
It seems ironical that people are engaging in the practice of surrogacy when
nearly 12 million Indian children are orphans. Adoption of a child in India is a
complicated and a lengthy procedure for those childless couples who want to give
a home to these children. Even 60 years of Independence have not given a
comprehensive adoption law applicable to all its citizens, irrespective of the
religion or the country they live in as Non-Resident Indians (NRIs), Persons of
Indian Origin (PIOs) or Overseas Citizens of India (OCIs).
As a result, they resort to the options of IVF or surrogacy. The Guardian and
Wards Act, 1890 permits Guardianship and not adoption. The Hindu Adoption and
Maintenance Act, 1956 does not permit non-Hindus to adopt a Hindu child, and
requirements of immigration after adoption have further hurdles.(7)
There is a strong need to modify and make the adoption procedure simple for all.
This will bring down the rates of surrogacy. Altruistic and not commercial
surrogacy should be promoted. Laws should be framed and implemented to cover the
grey areas and to protect the rights of women and children.
- Indian J Community Med. 2012 Oct-Dec; 37(4): 211�213.
- doi: 10.4103/0970-0218.103466
- PMCID: PMC3531011
- PMID: 23293432
- Pikee Saxena, Archana Mishra, and Sonia Malik1
- Department of Obstetrics and Gynecology, Lady Hardinge Medical College
and Shrimati Sucheta Kriplani Hospital, New Delhi, India
- Department of Obstetrics and Gynecology, Infertility and IVF, South End
Fertility and IVF Centre, Holy Angels Hospital, Basant Lok, Vasant Vihar,
New Delhi, India
- Articles from Indian Journal of Community Medicine: Official Publication
of Indian Association of Preventive & Social Medicine are provided here
courtesy of Wolters Kluwer -- Medknow Publications
- Available from: http://surrogacylawsindia.com/legality.php?id=%207 and
- National guidelines for the accreditation supervision and regulation of
ART clinics in India. http://www.icmr.nic.in/art/art_clinics.htm
- http://www.timesonline.co.uk/toI/news/world/asia/article/7113463.ecc .
- The Associated Press (2007-12-30) India's surrogate mother business
raises questions of global ethics
- ART Regulation draft bill 2010. http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf
- Central adoption resource authority.Available from: