Prohibitions & Contesting Issues on Surrogacy in India 

Pub. Info- “Prohibitions & Contesting Issues on Surrogacy in India ” published in the Indian Journal of Socio Legal Studies (IJSLS),  (ISSN 2320 – 8562), volume IV, Issue-I Jan-June 2015.

Abstract :  Around the world surrogacy is recognized as alternative to family formation and laws are being formulated in order to regulate the same. Surrogacy laws invariably in all legal jurisdictions enumerate a set of permissible and non permissible or prohibitory acts for successful conduct of surrogacy. It has been commonly observed  that commercial surrogacy remains largely prohibited most of the legal jurisdictions but contrastingly India has legalized commercial surrogacy Though the supreme court in the case of Japanese surrogate child Baby Manaji declared commercial surrogacy legal in India in the year 2008[2] but there is absence of statutory law on the same. In the aftermath of the apex court direction , there has been formulation of a draft law on Surrogacy by the Ministry of Health & Welfare Government of India on Surrogacy named as  Assisted Reproductive Technologies (ART) Regulation  Bill 2008[3] seeking to regulate the conduct of surrogacy in India but the same has been long since pending for enactment and is subject to revised drafts once in the year 2010[4] and then as recent as in the year 2013[5] which is presently awaiting enactment. But during this long hiatus of pendency many illegalities are taking place under the garb of surrogacy much to the contrary of existing statutory law and contrary to provisions of ART Bill. In order to curb the same, certain acts need to specifically prohibited and penalized and stringent legislation has to be enacted in order to check  the misuse of surrogacy arrangements in India.

Introduction :  India is stated to be the first country in the world to legalize surrogacy in commercial form[6].  The Supreme court of India made the authoritative judicial pronouncement of legalizing commercial surrogacy in India in the landmark case of Baby Manaji Yamanda Vs.Union of India[7]and the court enumerated favorable reasons as “excellent medical infrastructure, high international demand and ready availability of poor surrogates” for  legalizing the same.[8] The supreme court defined commercial surrogacy as “a form of surrogacy in which a gestational carrier is paid to carry a child in her womb by well off infertile couples in order to become parents.[9] The supreme court reiterates the popular names attributed to commercial surrogacy as “wombs for rent, outsourced pregnancies or baby farms”[10].  The supreme court acknowledged that “Surrogacy in India is largely commercial to the extent of an Industrial proportion.”[11]

In the subsequent case in Jan Balaz vs Anand Muncipality[12]the same fact of legalization was reiterated and the court upheld the ratio laid down by the apex court by stating that “commercial surrogacy is held legal in India as there is no law prohibiting artificial insemination, egg donation, lending a womb or surrogacy agreements, there are no civil or criminal penalties imposed for same.”[13]  Further, the court mentioned other foreign nations as Ukrain, California in the United States” where commercial surrogacy is similarly permitted”[14].

In keeping with these judicial pronouncements, the draft bill on surrogacy ART Bill also legalizes surrogacy in commercial form under relevant provision by providing for monetary payment to surrogate mother for her agreeing to act as gestational carrier for the intending couple in addition to the cost of surrogate pregnancy , insurance and other incidental costs associated with pregnancy[15].

But this commercialization of surrogacy has been subject to much critic at national international level. This commercialization of surrogacy was criticized by Law Commission in its report no. 228 after consideration of ART Bill[16]. The Law Commission in its Report on ART Bill recommends that “Surrogacy arrangement should not be for commercial purposes”and recommended for altruistic surrogacy.[17]

At international level many foreign legal jurisdictions prohibit commercial surrogacy for reasons related to commodification of women and child and breach of public policy among other reasons. It may be mentioned here that UK under Human Fertilization and Embryology (HEFA) Act [18], Canada under Assisted Human Reproduction Act[19], Japan under Japanese Civil Code[20] as well as many states of USA namely New York[21] , Washington [22], Michigan[23] under their respective laws  prohibits commercial surrogacy and in certain cases even makes it a punishable offense. In re Baby M[24] theNew Jersey Supreme court held that the “commercial surrogacy contract was against public policy” for a mother could not contract away her parental rights under the New Jersey statutes. Similarly in In re Adoption of Paul[25] The New York court held that the commercial surrogate parenting contract was void as breach of public policy under existing New York law[26].

Despite this India has a flourishing commercial surrogacy business but in the guise of such commercial surrogacy many illegal practices are taking place. Surrogacy as an ART industry is now a 25,000 crore rupee pot of gold stated by the Law Commission its report[27]. The Confederation of Indian Industry estimates that surrogacy generates US$2·3 billion annually in India.[28]

This large scale commercialization of surrogacy coupled with absence of any effective statutory law on surrogacy provides ample scope for illegal practices , misuse and abuse of surrogacy arrangements. Legalization of Surrogacy in commercial form is fraught with many legal ethical social issues which require not only strict regulation but also necessary prohibition. This is particularly  significant in the given social economic context of Indian society which is marked with wide spread unregulated surrogacy, non monitoring and non supervision by government functionary , easy and abundant availability of poor, illiterate women willing to act as surrogate mothers for money,alarming rate of infant mortality rate , maternal mortality rate , declining rate of sex ratio, lack of adequate maternal or reproductive health care and a host of other ill social and legal impediments under such context commercialization of surrogacy may cause more harm than good in society and therefore there is an urgent felt necessity to not only effectively regulate surrogacy arrangement but also prohibit certain acts under the proposed surrogacy legislation which may perpetuate further illegality.

Contemporary practices under the garb of Surrogacy – Issues & Prohibitions under ART Bill :  It is pertinent to state that some of these illegalities merit consideration as these defy not only the existing statutory laws and judicial dictum but also give rise to abusive practices which are identified and analyzed here briefly. Many of these acts of commission or omission remain prohibited under the ART Bill but during the pendency these have no legal effectiveness and hence rampantly violated with no legal liability attached to same. It is also significant to note that these violations are not only restricted at national level but also at international level and bringing forth unresolved issues which stand inconsistent with existing laws, international conventions.

In the light of this, some of the issues are discussed  and also an attempt has been made to refer to suggestive safeguards as necessary for ensuring socially desirable conduct of surrogacy in consonance with law towards the access and better realization of right to privacy, family formation.

i. Prohibition on sex selection under the garb of surrogacy in India : The ART Bill 2010 imposes prohibition on both pre natal post natal sex selective techniques , advertisement relating to same and makes it a punishable offence. [29]In Voluntary Health Association of Punjab Vs. Union of India & Others[30],  the supreme court directed all the infertility clinics using  pre-conception   and   pre-natal diagnostic techniques to be brought under the ambit of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (PCPNDT) Act[31] and there by directs the ART Clinic or infertility clinics to incorporate the mandate of PC PNDT Act.

But despite the strict statutory imposition as well as judicial stricture there are reported cases of sex selection under the guise of surrogacy. It may be mentioned that the ART Bill permits the conduct of PGD[32], Fetal reduction [33] which may be misused to conduct sex selective surrogacy. In Amy Antoinette Mcgregor & Anr vs Directorate Of Family Welfare[34] before Delhi High Court a couple sought use of pre genetic diagnostic technique PGD for selecting the sex of the foetus claiming it to be an act of family balancing. Such acts is violative of the mandate of the PCPNDT Act as well as the provisions of the draft ART Bill.  On similar facts , there is a recent popular case of Varsha Laxman Deshpande vs The Municipal Commissioner[35]before Mumbai High Court involving a leading hindi film actor who was alleged to have conducted sex determination test for preferring a male surrogate child and hence violating the PCPNDT Act for which a complaint was filed  NGO  at the  local Magistrate  court in Mumbai by a Mumbai based NGO[36], thereupon the Mumbai High Court issued legal notice to the actor on the same[37].

Thus there is both a stringent prohibition and penal measures provided against the conduct of sex selective surrogacy in any form. The  Law Commission in its Report on ART Bill has also recommended for “strict prohibition on Sex-selective surrogacy in India”.[38]

ii.Prohibition on imposing abortion by intending couple on surrogate mothers against her consent:  It is viewed that it is the choice of the intending couples to selectively abort the surrogate child as and when they feel so based on their individual discretion as they have paid for availing this surrogacy but the ART Bill differs on this point. The surrogacy law permits for termination of surrogate pregnancy through fetal reduction[39] only under certain defined conditions after appropriate counseling for avoiding multiple pregnancies which poses risk to the health and survival of both the surrogate mother and the surrogate child[40]. Further, it has been found that the sole decision making with respect to fetal reduction is solely vested with the  doctor and with the intending couple. This is contravention of the relevant provision of the MTP Act.

Compelling foetal reduction or abortion  on the surrogate mother against or absent her will under the force of surrogacy agreement or under the letter of the draft Bill or at the instance of intending couple without her choice amounts to denying the women basic reproductive right, right to life and liberty by taking away from the women her basic right to bodily autonomy , decision making with regard to her reproductive health , life, liberty. And also this is violation of the mandate of the medical termination of pregnancy Act. It has been established by the supreme court in the case of Suchitra Srivastava Vs. Chandigarh Administration[41] as well as in Bhupinder Kumar vs Angrej Singh[42]held that the right to termination of medical pregnancy is a basic statutory reproductive right to every adult, sane or (non mentally ill) women guaranteed explicitly under the provisions of MTP Act accordingly the court states that no abortion can beperformed without the consent of such women. “The consent of the pregnant woman is an essential requirement for proceeding with the termination of pregnancy which is unambiguously stated in Section 3(4)(b) of the MTP Act, 1971.”[43]This right to consent , decide upon termination of pregnancy is recognized by the court as“a woman’s right to make reproductive choices which is also dimension of `personal liberty’ as understood under Article 21 of the Constitution of Indiaand the right to exercise such reproductive choices is crucial to woman’s right to privacy, dignity and bodily integrity”[44]. Denial of same amounts to violation of the basic right tolife, deprivation of basic reproductive right of women and as a much a statutory violation.During the course of adjudication the court also referred to the land mark US case on this point, Roe v. Wade,[45]the United States Supreme Court recognised that the right of a woman to seek an abortion during the early-stages of pregnancy came within the constitutionally protected `right to privacy’ and right to liberty and right to life under the US 14th amendment to US Constitution.

In X vs Govt Of Nct Of Delhi & Anr[46] the Delhi court reiterated the ratio laid down in the case of suchitra srivastava and complied with the recognition of right of women to facet of right to liberty and right to life , this court took a progressive step and laid down the “best interest test” that would primarily protect the interest of the pregnant women seeking to undergo abortion [47] therefore the consent and the wellbeing of the reproductive health woman is given utmost significance.

It may be pertinent to reiterate the decision laid down by supreme court in the case of Laxmi Mandal vs Deen Dayal Harinagar Hospital[48] where the apex court equated the status of reproductive health care of women to be the core constituent of right to life of an individual and expressly stated “the reproductive rights of the mother is one of the  inalienable survival rights that form part of the right to life under Article 21 of the Constitution”[49] the court has duly emphasized on the health safeguards for women under the maternal health care flagship programmes formulated by Government of India for such protection of the reproductive health care for women..[50]

Thus, there are sufficient safeguards both in the statutory law as well as in case law jurisprudence that  prohibits such unwanted arbitrary imposition of abortion on the surrogate mother in the guise of foetal reduction under surrogacy and also prohibits / prevents any such denial of reproductive rights to surrogate mother.

But despite this guarantee of law both at national , international law , there was a reported case of  the year 2012 where a surrogate mother named Ms Kelley  in Connecticut US  who was offered $10,000 by the intending couple  to undergo abortion after the surrogate foetus was diagnosed with serious medical problems but the surrogate refused her consent to abort , the couple issued legal notice compelling her to abortion failing which they threatened to sue the surrogate mother for breach of contract  and reimbursement of all medical expenses and legal fees around $8,000.[51]It may be therefore be suggested that strict prohibition followed with penal measures should be imposed on the same.

iii.Prohibition on rejection of surrogate child by Intending couple post birth  : In the wake of the infamous Baby Gammy case of Thailand where an Australian intending couple after the birth of surrogate child refused to take the custody of surrogate child who was born with downs syndrome and the surrogate child was left in Thailand with the 21 year old surrogate mother who was paid a sum of $16,000 for the surrogacy[52] , this was subject to much critic and condemnation world over. Following the shocking abuse of surrogate child right in this, the Thailand National Legislative Assembly voted with majority not only to prohibit commercial surrogacy but also inflicts tough criminal sanction including imprisonment and fine for entering into such commercial surrogacy arrangement under the new draft Bill on surrogacy[53]. The main objective of this draft law is to accord “maximum benefits to the surrogate babies.”[54]The Thailand case has emphasized similar issues of rejection of surrogate child and issues concerning right to life , dignity and survival of surrogate children refused custody by couples who are in most cases the biological parents of the child.

It may be mentioned here that the ART Bill not only prohibits but penalizes any such refusal or rejection by the intending couple under specific provision[55].  But there is an inadequacy in the bill as it prohibits such rejection only on health ground and number but omits to mentions of the surrogate child as the ground for such refusal. Taking the advantage of this loophole in law, in a recent case of the present year an Australian based intending couple who commissioned surrogacy in India rejected the girl surrogate child born to them on the ground of her sex, left her in India and took the custody of the male surrogate child only with them.[56] Such practices prima facie objectifies the life of the surrogate child and makes it a marketable commodity ordered and exchanged for in return for monetary payment and likewise refused if found with defect. This is the abject devaluation of right to life, integrity and dignity of child or a human life therefore both a legal and ethical violation of life.  This is meaningfully described by Immanual Kant , the German philosopher who stated that “Human beings have “an intrinsic worth, dignity, above all price therefore humans beings are end in themselves and not merely means to an end”[57] . This also stands as breach of the rights guaranteed to every child which includes surrogate child as well under national and international legal instruments.  The UNCRC[58] recognize the right of  every child to inherent right to life, survival and development of the child[59], right of child to fundamental human rights and the dignity and worth of the human person [60]and denial of such righto surrogate child amount to discrimination [61]. Similarly the Indian constitution [62] ensures protection for early childhood care , development  under directive principles of state policy [63]and national statutory law namely the Commission For protection of Child Rights Act [64]enacted after India’s ratification to UNCRC seeks to uphold the mandate of UNCRC and ensure the rights guaranteed therein.[65]Though it may be appreciated that the Indian surrogacy law or the draft Bill ensures such prohibition but at the same time the recent case itself shows the lacuna in the law which may be comprehensively addressed with strict regulation and punishment for better protection of life , integrity of surrogate child.

iv.Prohibition on claims of legal motherhood by the surrogate mother – The ART Bill under relevant provision prohibits naming of the surrogate mother in the birth certificate of surrogate child[66]and also makes the immediate handing over of the surrogate child immediately after birth by the surrogate mother to the intending couple compulsory[67]. The Law Commission in its Report on ART Bill has explicitly recommended for “The birth certificate of the surrogate child should contain the names of the commissioning parents only”.[68]Thus these provisions signify the intent of the ART Bill or the law makers to deny any claim of motherhood by the surrogate mothers over the surrogate child borne by her.

Such a provision is included under the Bill to ensure parentage right for the surrogate child which is a the most fundamental human right and individual legal right guaranteed to every child under the universally binding UNCRC convention[69] which has been ratified by India as well[70]. The NCPCR Act in India also reiterates the mandate of UNCRC and seeks to secure the right under the convention[71].However this proposed prohibition on right to legal motherhood by surrogate mother has not been put to practice. Rather there has been quite the contrary which has not only taken away the right to legal motherhood from intending mother but also challenged the right to determination or ascertainment of legal parentage of the surrogate child.

This is exemplified in the case of Jan Balaz vs Anand Muncipality[72]where in apposite to the provision in the Bill , the birth certificate issued to the surrogate child mentioned the name of Indian surrogate mother as legal mother and the German intending father who was also the biological father in this case which led to absurd inferences with regard to parentage of child. This not only added legal complexities in the determination of parentage of surrogate child but kept in abeyance the right to parentage of surrogate child during the entire court proceeding. Such determination was against the relevant provisions of United Nations Convention on the Rights of the Child (UNCRC) providing for right to know his or her parentage and to be care for and protected by parent[73] and similarly under Indian constitution [74] and statutory law namely the Commission For protection of Child Rights Act [75]. It is observed that during the pendency of the Bill , the provisions have no legal force and thereby not complied which leads to vexatious legal issues questioning the parentage of surrogate child. Similar facts and issues also surfaced in a recent Irish case of this year where the Irish Registrar of Birth,registered the name of surrogate mother as legal mother in the birth certificate of surrogate child excluding the intending mother who was biologically related to the surrogate child[76]. It may be mentioned here that similar to India, Ireland also does not have a specific statutory law on surrogacy at present and hence these conflicting issues appear[77].

On these lines, concerning issues pertaining to determination of motherhood and consequently parentage right of the surrogate child, the supreme court of India has taken up the same for consideration while examining the civil political entitlements for the surrogate child  in a particular case[78], however as a legal recourse to the same , the highest court of the country has suggested for enactment of a legislation on the same addressing these issues and incidental or ancillary concerns[79

V. Prohibition on Foreign Homosexuals to commission surrogacy in India – Though the ART Bill 2010 under the select provision provides surrogacy for all including homosexual, single individual without any discrimination. [80]in compliance with this provision of the ART Bill many homosexual partners from different parts of the world have commissioned surrogacy in India has successfully attained parenthood over surrogate child. the case of Israeli gay couple[81] and the case of Spanish Gay couple [82]have been extensively reported  wherein both have had surrogate twin children given birth by Indian surrogate mothers in India .

But with the recent issue of Home Ministry Guidelines of the year 2012 [83] which is exclusively applicable only to foreign nationals seeking to commission surrogacy in India stating that only such foreign nationals who are heterosexual married couples with a subsisting marriage of two years and above are permitted to commission surrogacy in India and therefore no homosexuals, single unmarried are permitted under this guidelines to commission surrogacy in India. This Guidelines was upheld as binding law over and above any other regulations in this regard by the Punjab Haryana high court in the case of a single unmarried man of Sudanese nationality who was denied the right to commission surrogacy in India due to his foreign nationality and personal status  in compliance  with the Guidelines[84].

But despite this Home Ministry Guidelines, there has been a reported case of year 2013 where a single Israeli pedophile who availed the services of a Indian surrogate mother and secured the custody of the girl surrogate child born to him and took the child with him back to Israel where this disclosure of his criminal background as sex offender came to light subsequently[85] . The national child commission and the concerned Ministry in India though criticized the same but neither any  legal recourse was taken against the same nor there was any recommendation issued in order to prevent recurrence of similar cases in future[86].

The Guidelines have been subject of much critic as it prima facie discriminates individuals  on the ground of their sexual orientation and denies a certain group of individuals  right to family formation, procreative choice or autonomy , privacy and for these reasons stands inconsistent with the international human right convention namely the International Conference on Population and Development (ICPD), Cairo 1994[87]  which explicitly recognizes “the right to reproductive sexual or reproductive health specifically as a human right” and integral part of right to privacy and right to life of individual.  Accordingly the supreme court of India in the case of Kharak Singh v. State of U.P,[88]B. K. Parthasarthi v. Government of Andhra Pradesh[89] and In Govind v. State of M.P,[90]whichhave all unequivocally held that right to procreational autonomy of individual encompassing decision related to family, marriage, procreation, motherhood, child-bearing, fall within the bracket of right to the privacy of individual and therefore a dimension a right to life and this is the subject matter of intimate personal affairs of an individual where individual has right to be let alone and personal decision making and safeguard the privacy. On similar lines,  in the landmark case of Baby Manji Vs Union of India[91] the supreme court of India also recognizes  this right to family formation ,children, to attain parenthood for “certain individuals” who the court without specifically identifying mentions them as certain individuals only available option who wish to have a child that is biologically related to them.” This may implicitly recognize the right of homosexuals, single individuals to commission surrogacy.

Despite this strict prohibition in India on homosexuals, singles individuals commissioning surrogacy in India there are many foreign legal jurisdiction which permit surrogacy for all without any discrimination on equal basis. It may be pertinent to mention that California Surrogacy law 2013[92], UK HEFA Act [93], Canada Assisted Human Reproduction Act[94] all these nations permit same sex surrogacy under their respective statutes. There has been a series of contemporary legal cases on this point (as well) which have upheld the right of same sex partner to commission surrogacy. In K.M. v. E.G.[95], The California court recognized a same sex  lesbian partners to be mothers and  legal parents of the surrogate child. In T.V. v. NY Dep’t of Health  [96], the New York Court held that the right of same sex unmarried  intending couple to legal parentage over surrogate child. Thus it may be stated that Regardless of such progressive development, human right violation, discrimination India even at present has absolute prohibition on same sex surrogacy in India.

Suggestion & End Remarks :  Taking after the analysis and consideration of the concerned issues it appears that at present most of the proposed prohibition under the ART Bill remain toothless tiger and continue to be ignored in practice except for the prohibition on same sex surrogacy which stands as only binding stricture despite much critic for its discriminating nature and human right violation. This may require necessary reconsideration as the Bill is awaiting enactment.

It is observed that certain acts taking place under the guise of surrogacy are neither in the interest the stakeholders involved in surrogacy and nor in the larger interest of society and therefore these are sought to be prohibited. The surrogate mother, surrogate child as well as intending couples are exposed to legally vulnerable position as they stand to loose their legal rights and entitlements  demonstrated in the cases mentioned above and such cases also set a bad precedent as they breach the existing laws, convention and throw up a legally conflicting issues for resolve.

At the outset, it may well be reiterated that certain prohibitions are therefore an urgent legal necessity  for better protection of right to health right to liberty and right to life of both surrogate mother and child and particularly reproductive health surrogate mother’s, the basic individual right of identity  of surrogate child. In the face of pendency of the Bill and out right violations, it may be worthwhile to add that certain provisions in the law need to be more comprehensive in order to ensure absolute check on the occurrences of abusive practices as sex selective surrogacy, rejection and refusal to take custody  surrogate child , reproductive or maternal health exploitation of surrogate mother, denial or abridgment of right to family formation of intending couple and such cases in future. Such prohibitions are necessary  to ensure ethical and socially desirable practice or conduct of surrogacy in India and also protection or safeguarding the interest of all stakeholders or participants in surrogacy.

Thus it may be appropriately said that while commercial surrogacy may not be prohibited in India but the illegal acts under the guise of surrogacy must be prohibited.

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1.Alison Bailey, Reconceiving Surrogacy, Gender Matters ,Volume14, Issue 4, April/May 2009.

2.AmritaPande, Wombs in Labor: Transnational Commercial Surrogacy in India, Columbia University Press September 2014.

3.Centre for Social Research (CSR), Surrogate Motherhood- Ethical or Commercial,Centre for Social Research (CSR),  Delhi , http://www.womenleadership.in/Csr/SurrogacyReport.pdf

4.GitaAravamudan,  Baby Makers-The Story of Indian Surrogacy , HarperCollins,  Bangalore,  July 2014, http://www.harpercollins.co.in/Miniwebsite/BookDetail.asp?Book_Code=4705&TB_iframe=true&width=570&height=390

5.Imrana Qadeer and Mary E. John, The Business and Ethics of Surrogacy, Economic and Political Weekly, Vol. 44, No. 2, Jan. 10 – 16, 2009, http://www.jstor.org/stable/i40010954.

6.Kishwar Desai, Origins of Love, Simon & Schuster Limited Publications , June 1st 2012 .

7.Lawrence O. Gostin, Surrogate Motherhood: Politics and Privacy , Indiana University Press, May 1990.

8.Malhotra Anil &Ranjit, Surrogacy in India – A Law in the Making , Universal Law Publishing Co. Pvt. Ltd. (New Delhi), January 2013.

9.NiveditaMenon, Surrogacy Politics: ImranaQadeer& Mary E. John, Kafila, DECEMBER 25, 2008, http://kafila.org/2008/12/25/surrogacy-politics-imrana-qadeer-mary-e-john/

10.Rachel Cook, Shelley Day Sclater, Felicity Kaganas , Surrogate Motherhood: International Perspectives, Hart Publishing, 2003.

[1] Sonali Kusum, Ph.D Research Scholar, National Law School of India University (NLSIU) Bangalore , BA LLB,  LLM, UGC NET , Pg.Dip. Social Work.

[2](2008) 13 S.C.C. 518.

[3]Indian Council of Medical Research. The Assisted Reproductive Technology (Regulation) Bill– 2008(Draft) Ministry of Health and Family Welfare, Government of India, available at http://icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&%20Rules%20-%202008-1.PDF (Last visited December. 1, 2014).

[4]The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited December. 1, 2014) [hereinafter ART Bill 2010].

[5]Assisted Reproductive Technology (Regulations) Bill 2013, §2 (zj), (Tentative Draft) Date Jun. 27, 2013, Legislative Department, Ministry of Law & Justice, Government of India (On record with the author). For supporting documents, see also, Kounteya Sinha, Bill Aims To Weed Out Rent-A-Womb Clinics, TNN, Jul. 13, 2012, available at http://timesofindia.indiatimes.com/india/Bill-aims-to-weed-out-rent-a-womb-clinics/articleshow/14858687.cms?referral=PM (last visited December. 1, 2014);

[6]Cara Luckey, COMMERCIAL SURROGACY: IS REGULATION NECESSARY TO MANAGE THE INDUSTRY?, WISCONSIN JOURNAL OF LAW, GENDER & SOCIETY [Vol. 26:2, 2/8/2012 available at http://hosted.law.wisc.edu/wjlgs/issues/fall_2011/luckey.pdf (Last visited December. 1, 2014).

[7]Supra Note at 2.

[8] Ibid,  ¶ 9.

[9]Ibid,  ¶ 9.

[10] Ibid ,  ¶ 9.

[11] Ibid,  ¶ 9.

[12]AIR 2010 Guj 21.

[13] Ibid,¶ 14.

[14]Ibid,  ¶ 10.

[15] Section 34 (2) (3) ART Bill 2010.

[16]Union Minister of Law and Justice, Ministry of Law and Justice, Government of India , Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy, , Report No. 228, AUGUST 2009, available at http://lawcommissionofindia.nic.in/reports/report228.pdf (Last visited December . 1, 2014).

[17]Ibid,  Para No. 4.2. ( 1) , Pg. No. 25.

[18]Part 3 Miscellaneous, Section 59, Gov. UK, Human Fertilisation and Embryology Act 2008, 2008 c. 22 , available at http://www.hfea.gov.uk/496.html (Last visited December 1, 2014).

[19]Section  6. (1) (2) ( 5) Government of Canada , Assisted Human Reproduction Act (S.C. 2004, c. 2), ( 2004-03-29) available at http://laws-lois.justice.gc.ca/eng/annualstatutes/2004_2/FullText.html(Last visited April. 25, 2014).

[20]Japaneese Civil  Code, (Japanese: 民法 Minpō) ,  Government of Japan, translated by Ministry of Justice, Government of Japan, Act No. 89 of April 27, 1896, available at http://www.moj.go.jp/content/000056024.pdf (Last visited December 1, 2014)

[21]NY CLS Dom Rel §§ 121 to 124 (2007)

[22]Rev. Code Wash. §§ 26.26.011 to .903 (2007)

[23]MCLS prec §§ 722.851-.863 (2007)

[24]537 A.2d 1227 (N.J. 1988).

[25]550 N.Y.S.2d 815 (N.Y. Faro. Ct. 1990).

[26]NY CLS Dom Rel §§ 121 to 124 (2007).

[27] Supra Note at 16, Para 1.7 Pg No.11 .

[28]Priya Shetty, India’s unregulated surrogacy industry,The Lancet, Volume 380, Issue 9854, Pages 1633 – 1634, 10 November 2012,  doi:10.1016/S0140-6736(12)61933-3, available at http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(12)61933-3/fulltext(Last visited December 1, 2014).

[29] Supra note at 4 § 34 (11) , 37(1) (3).

[30] Writ Petition (Civil) No. 349 Of 2006.

[31] THE PRE-NATAL DIAGNOSTIC TECHNIQUES (PROHIBITION OF SEX-SECTION) ACT, 1994, ACT NO. 57 OF 1994, 20th September, 1994, available at http://www.rajswasthya.nic.in/PCPNDT%2005.12.08/PCPNDT%20Act%20(2).pdf (Last visited December 1, 2014).

[32] Supra note at 4  §2 (y),  §24.

[33] Supra note at 4  §2 (o), § 23 (5).

[34] India Kanoon, Delhi High Court , Amy Antoinette Mcgregor & Anr vs Directorate Of Family Welfare, 24 October, 2013, available at http://indiankanoon.org/doc/121812629/(Last visited December 1, 2014).

[35]India Kanoon, Bombay High Court , wp.4164.2013.doc, 19 June, 2014 , available at http://indiankanoon.org/doc/111717993/(Last visited December 1, 2014).

[36]PTI Mumbai, Case filed against Shah Rukh Khan for gender test of surrogate son AbRam, indianexpress, Aug 09 2013, available at http://archive.indianexpress.com/news/case-filed-against-shah-rukh-khan-for-gender-test-of-surrogate-son-abram/1153303/(Last visited December 1, 2014).

[37] PTI Agencies , HC notice to Shah Rukh Khan, BMC in sex determination case, thehealthsite, December 9, 2013, available at http://www.thehealthsite.com/news/hc-notice-to-shah-rukh-khan-bmc-in-sex-determination-case/ (Last visited December 1, 2014).

[38] The Law Commission Report ,Supra note at 16 Para No. 4.2. ( 8) , Pg. No. 26.

[39] Supra note at 4 at § 2 (o).

[40] Supra note at 4 § 23 (5).

[41] Civil Appeal No.5845 of 2009.

[42] CIVIL APPEAL NO.5845 OF 2009,  (Arising out of S.L.P. (C) No. 17985 of 2009).

[43]Ibid ,  ¶ 11.

[44]Ibid ,  ¶ 12.

[45] 410 US 113 (1973).

[46]W.P.(CRL) 2008/2013 and Crl. M.A. 18262/2013.

[47]Ibid  ¶ 7

[48]W.P.(C) Nos. 8853 of 2008 & 10700 of 2009.

[49] Supra note at 48, ¶ 2.

[50]Ibid, ¶ 2.

[51]Elizabeth Cohen, Surrogate offered $10,000 to abort baby, CNN, March 6, 2013 http://edition.cnn.com/2013/03/04/health/surrogacy-kelley-legal-battle/

[52]Jonathan Pearlman, Sydney , Thailand bans surrogate babies from leaving after Baby Gammy controversy, telegraph 15 Aug 2014 , available at http://www.telegraph.co.uk/news/worldnews/asia/thailand/11035743/Thailand-bans-surrogate-babies-from-leaving-after-Baby-Gammy-controversy.html (Last visited June 15, 2014).

[53]BBC News Asia, Thai parliament votes to ban commercial surrogacy trade, BBC news,  28 November 2014http://www.bbc.com/news/world-asia-30243707(Last visited December 1, 2014).

[54] Patsara Jikkham, Bill would ban commercial surrogacy , 17 Nov 2014 , Bangkok Post,

available at http://www.bangkokpost.com/news/general/443833/thailand-draft-legislation-bans-commercial-surrogacy (Last visited  December 1, 2014).

[55]Supra Note at 4§ 34 (11).

[56]DIANA BRYANT, Aussie couple reject Indian surrogate girl child, AP Canberra, October 09, 2014, available at http://www.hindustantimes.com/india-news/australian-couple-reject-child-born-to-indian-surrogate-mother-because-of-baby-s-gender/article1-1273356.aspx(Last visited December1, 2014).

[57] Immanuel Kant (1724–1804) Lecture on Ethics (1779), Kant’s Moral Philosophy,  Stanford encyclopedia of ethics,Feb 23, 2004, available at http://plato.stanford.edu/entries/kant-moral/(Last visited December 1, 2014).

[58] Convention on the Rights of the Child, UN General Assembly resolution 44/25 , 20 November 1989

(2 September 1990),available at http://www.ohchr.org/en/professionalinterest/pages/crc.aspx/(Last visited December 1, 2014).

[59]Ibid Article 6 (1) .

[60]Ibid Preamble

[61]Ibid Article 2 (1)

[62] V.N. SHUKLA, CONSTITUTION OF INDIA 131 (M.P.Singh ed., 2008).

[63]Ibid, Article 39(f) , Article 45 .

[64]MINISTRY OF LAWANDJUSTICE, THE COMMISSIONS FOR PROTECTION OF CHILD RIGHTS ACT 2005, No. 4 of 2006, (20th January, ,2006,) available at  http://wcd.nic.in/The%20Gazette%20of%20India.pdf(Last visited December1, 2014).

[65] United Nations,  Treaty Series , vol. 1577, p. 3; depositary notifications C.N.147.1993.TREATIES-5 of 15 May 1993India Accession  as on 11 Dec 1992 ,  available at  https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en(Last visited December1, 2014).

[66]Supra note at 4 at § 34 (10) , Section 35 (7).

[67] Supra note at 4 at § 34 (4) (23) (24.

[68] Supra note at 16, Para No. 4.2. ( 6) , Pg. No. 26.

[69] Supra note at 58 , Art. 3 (1) (2), Art. 7 (1).

[70] Supra note at 65.

[71]Supra note at 64.

[72]Supra Note at 12.

[73]Supra note at 58, Art. 3 (1) (2), Art. 7 (1).

[74]Supra Note at 63.

[75]Supra note at 64.

[76] Mary Carolan, Supreme Court rules genetic mother of twins is not their legal mother, irishtimes, Nov 8, 2014,

available at http://www.irishtimes.com/news/crime-and-law/supreme-court-rules-genetic-mother-of-twins-is-not-their-legal-mother-1.1992112(Last visited December 1, 2014).

[77]Mary Carolan, Supreme Court to rule on surrogacy birth cert appeal by October, irishtimes, June 9, 2014, available at http://www.irishtimes.com/news/crime-and-law/supreme-court-to-rule-on-surrogacy-birth-cert-appeal-by-october-1.1838475 (Last visited December 1, 2014).

[78]KRISHNADAS RAJAGOPAL, Centre told to clarify stand on citizenship of surrogate children, The Hindu, September 4, 2014, available at http://www.thehindu.com/news/national/centre-told-to-clarify-stand-on-citizenship-of-surrogate-children/article6379550.ece(Last visited December 1, 2014).

[79]KRISHNADAS RAJAGOPAL , SC moots dual citizenship for surrogate children , The Hindu, NEW DELHI, September 5, 2014, available at http://www.thehindu.com/todays-paper/tp-national/sc-moots-dual-citizenship-for-surrogate-children/article6381563.ece (Last visited December 1, 2014).

[80]Supra note at 4 §  32 (1).

[81] Madhavi Rajadhyaksha, Israeli gay couple gets a son in India,TNN | Nov 18, 2008, available at http://timesofindia.indiatimes.com/india/Israeli-gay-couple-gets-a-son-in-India/articleshow/3724754.cms(Last visited December 1, 2014).

[82]HT Correspondent, Questions raised over gay couple’s surrogate twins

Hindustan Times  New Delhi, February 17, 2011, available at http://www.hindustantimes.com/india-news/newdelhi/questions-raised-over-gay-couple-s-surrogate-twins/article1-663687.aspx(Last visited December 1, 2014).

[83]Government of India , Ministry Of Home Affairs , (Foreign Division) , New Delhi , Home Ministry Guidelines regarding conditions for grant of VISA to foreign nationals intending to visit India for commissioning surrogacy , issued on 9th July 2012, No. 25022/74/2011/F-1, 14th October 2013 , available at  http://www.icmr.nic.in/icmrnews/art/MHA%20Notification_%2014%20Oct.,%202013.pdf(last visited December 1 , 2014).

[84]Ajay Sura, Restriction on medical visa for surrogacy: HC summons ICMR, MHA officials on Sudanese national plea TNN , Apr 1, 2014, available at http://timesofindia.indiatimes.com/city/chandigarh/Restriction-on-medical-visa-for-surrogacy-HC-summons-ICMR-MHA-officials-on-Sudanese-national-plea/articleshow/33066265.cms, (Last visited December 1, 2014).

See Also , Dr Samit Sekhar, Petition to allow Singles to access surrogacy programs in India picks up pace., available at http://highcourtchd.gov.in/interim_order/io_data/CWP_15490_2013_02_04_2014_INTERIM_ORDER.pdf (Last visited December 1, 2014).

[85] Jason Overdorf , Israeli sex offender exploited Indian surrogacy trade, GlobalPost.com, Alaska Dispatch news,

June 11, 2013, available at http://www.adn.com/article/20130611/israeli-sex-offender-exploited-indian-surrogacy-trade(Last visited December 1, 2014).

[86] Michael Cook , Convicted paedophile gets child from surrogate mother in India, Bio edge,15 June 2013 available at , http://www.bioedge.org/index.php/bioethics/bioethics_article/10560(Last visited December 1, 2014).

[87]INTERNATIONAL CONFERENCE ON POPULATION AND DEVELOPMENT , Cairo, 5-13 September 1994 , UNITED NATIONS Distr. GENERAL A/CONF.171/13, 18 October 1994, available at http://www.un.org/popin/icpd/conference/offeng/poa.html (last visited April 25 , 2014).

[88] AIR 1963 SC 1295.

[89] AIR 2000 A. P. 156,  (2003) 8 SCC 369.

[90] (1975) 2 SCC 148: 1975 SCC (Cri) 468.

[91] Supra note at 2.

[92]Richard Vaughn, California Surrogacy Law To Take Effect Jan. 1, International fertility Law Group, November 26th, 2012, available athttp://www.iflg.net/california-surrogacy-law-to-take-effect-jan-1/ (Last visited December 1, 2014).

[93] UK HEFA, Human Fertilization and Embryology Act 2008, 2008 CHAPTER 22, available at http://www.legislation.gov.uk/ukpga/2008/22/contents(Last visited December 1, 2014).

[94] Government of Canada , Assisted Human Reproduction Act (S.C. 2004, c. 2), ( 2004-03-29) available at http://laws-lois.justice.gc.ca/eng/annualstatutes/2004_2/FullText.html(Last visited December 1, 2014).

[95] (2005) 37 C.4th 130, 33 C.R.3d 61.

[96]  88 AD3d 290 (2d Dep’t 2011).

 

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