Surrogacy Contracts: The Legal Regime In India
Every woman values the experience of maternity because nature has endowed her
with the ability to bear children. The natural right of an individual is the
opportunity to procreate. It is a worldwide phenomenon that all couples desire a
child. Parenthood is a life-altering and unparallelly rewarding experience. The
suffering associated with infertility is overwhelming .Significant advances have
been made in infertility treatment. Every civilization in the world has
prioritized the institution of the family.
When two people marry and establish a marital union, a new family is formed, and
that family is complete when children are born. Parents have valued their
children as a source of pleasure and a necessity for the continuation of the
family line since the beginning of time. According to psychologists, having a
child can help troubled marriages endure over time by strengthening the bond
However, a substantial portion of the population is unable to produce due to a
variety of factors. The majority of companions, according to the investigation,
have these problems. The absence of a child is stigmatized within the family. As
a consequence of infertility, the majority of failed weddings were attributed to
infertility. Infertility, which is sometimes referred to as the inability to
generate or conceive a child, is a significant problem. According to a WHO
report, infertility rates range from 10 to 15 percent worldwide, including in
The Concept And History Of Surrogacy:
The practice of using one woman's womb to produce a child for another woman is
known as surrogacy, which has progressed to a higher level of generative
science. Surrogacy is the most efficient method for overcoming biological and
social infertility. Surrogacy is an option for couples who cannot conceive
naturally or through in vitro fertilization.
Surrogacy has become an increasingly popular option for those who desire to have
a child with a biological connection to them. Globally, the concept of surrogacy
is now widely acknowledged. Surrogate birth is viewed as a blessing by infertile
couples because it offers them a revolutionary opportunity to become parents.
Kinds Of The Surrogacy
There are three types of surrogacy. i) required/gestational surrogacy ii)
unlimited surrogacy iii) genetic surrogacy. In genetic or partial surrogacy, the
male partner of the child-seeking couple fertilizes the female's embryo through
artificial insemination or, less frequently, natural sexual activity.
The commissioning mother is the social and legal mother, while the surrogate
mother is the genetic mother. Traditional surrogacy and partial surrogacy are
alternative terms for this practice .When the commissioning father's sperm or a
donor's sperm are used to fertilize the surrogate's egg, total surrogacy occurs.
In gestational surrogacy, the commissioning couple's egg and sperm (or those of
anonymous donors) are used to create an embryo, which is then implanted in the
surrogate or carrying mother .In this instance, the surrogate mother is
genetically unrelated to the infant. Full Surrogacy is an alternative term for
this type of surrogacy.
On the basis of the quantity of compensation received, surrogacy can be divided
into two categories. Surrogacy for altruistic purposes precedes commercial
surrogacy. In altruistic surrogacy, the commissioning parent may pay the
surrogate mother's expenses and costs associated with carrying an embryo to
term, but the surrogate mother is not compensated monetarily. The majority of
cases involving this type of surrogacy involve relatives or close acquaintances.
The traditional justification for why no monetary compensation is required in
this type of surrogacy is that the decision to serve as a surrogate is motivated
by altruism and not greed. Even though commercial surrogacy frequently employs
the rhetoric of giving, the surrogate receives monetary compensation in addition
to reimbursement for pregnancy-related expenses. This is how the surrogate is
compensated for her gestational services.
Surrogacy Agreement Definition And Meaning:
Although it is referenced in these case laws, there is no definition for it in
the judgment. A surrogacy agreement is defined as "a contract between the
person(s) availing of assisted reproductive technology and the surrogate mother"
in Section 2(cc) of the ART Bill 2010.To put it simply, a surrogacy agreement is
"a thorough document that lays the groundwork for governing the relationship
between the commissioning couple and the surrogate including rights,
liabilities, responsibilities details about the need for surrogacy, purpose and
situation of both parties, the terms under which the surrogate has agreed,
compensation, payment schedule, etc."
The Commercial Surrogacy Agreements And Their Inconsistency With The Essentials Of A Legal Contract:
The legitimacy of the surrogacy pact has been called into question due to its
failure to meet the standards for a legally enforceable contract established in
the Indian Pact Act. The ART Bill characterizes a surrogacy arrangement as a
contract, despite the fact that the surrogacy agreement fails to meet the basic
legal elements for an agreement to be considered a contract, most notably the
free consent of parties as needed by the Indian Contract Act.
Primarily, the surrogate mother is forced to offer her free, informed consent,
notably through economic compulsion, and she only agrees to be a surrogate
mother in exchange for remuneration. These ladies are unable to understand the
provisions of the agreement, which involve a variety of legal and medical
language, as well as the repercussions due to their own illiteracy and poor
socioeconomic standing. The surrogate mother will only sign the contract if she
is desperate for money. According to this, the agreement's essential legal
grounding is flawed since it lacks free consent and assent achieved by economic
pressure or monetary inducement, thus rejecting consent.
The first and most essential suggestion is to alter the term "commercial" to
"compensated surrogacy arrangement" as far as possible with the law and
policymakers in light of the legal issues surrounding commercialization and
financialization of surrogacy contracts. The term "compensated surrogacy" refers
to surrogacy agreements in which the surrogate mother is compensated and her
health is restored for carrying the pregnancy.
As a result, it differs from commercial surrogacy arrangements. Many
international legal systems, like the United Kingdom, have legalized paid
surrogacy. Australia, Canada, New South Wales, and many other countries are
included. According to the legislation, only the payment of "reasonable
expenses" is authorized in all of these countries.In various UK decisions, such
as Re the Matter, the courts have only authorized and upheld the aforementioned
reasonable amount. As a result, compensated surrogacy agreements may be drafted,
with the primary goal of paying for similarly sanctioned expenses or
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