Pub. Info. – “Legal inconsistencies and barriers in commercial surrogacy in India”, by Sonali Kusum, Journal of the Department of Legal Studies, Vol. 35, 36& 37 – 213, 2014- 2015, Directorate of Legal Studies Kilpauk, Chennai , ISSN No. 2395- 5481, Pg. No . 237 – 251.
India has legalized commercial surrogacy since the year 2002. The judgment of Supreme Court of India formally legalized surrogacy in commercial form in the landmark case of Baby Manji Yamanda Vs Union of India where in the court held commercial surrogacy is legal in India and described “commercial surrogacy as a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb”. Further the court enumerated favourable reasons for legalizing surrogacy in India with availability of excellent medical infrastructure, high international demand and ready availability of poor surrogates and for these reasons the court acknowledged that “surrogacy in India is reaching industry proportions.” Having legalized commercial surrogacy in the same tone, the court admitted not only the void in law but also the irregularities taking place in the absence of law by calling surrogacy as money making racket. This judgment of the apex court legalizing of commercial surrogacy was upheld and reiterated in the case of Jan Balaz v. Anand Municipality and Ors.,. In both these cases the court directed at the formulation of a statutory law to regulate the same.
Following this, a Bill namely The Assisted Reproductive Technologies (Regulation) Bill 2010 has been formulated by the Ministry of Health & Family Welfare and ICMR Delhi which seeks to regulate the conduct of ART as well as to stop misuse of the technology. In keeping with the supreme court ruling, the ART Bill legalizes Commercial surrogacy under its relevant provision by providing for the surrogate mother to be paid monetary compensation for agreeing to be surrogate or gestational carrier under the surrogacy agreement. Besides there are other similar provision in the Bill which provide for monetary payment to surrogate mother for successive embryo transfer by the intending couples. The Bill also provides for the egg donor and surrogate mother to be paid by the ART Bank under relevant sections. Thus, it is apparent that one of the salient feature of the Bill is the large scale legalizing commercial surrogacy in India. However at present the ART Bill is awaiting enforcement and in pendency and therefore the Bill has no legally valid binding effect.
Despite the court judgment as well as the provisions of ART Bill, legalizing commercial surrogacy, yet this form of commercial surrogacy is fraught with many legal complications in India. First and foremost commercialization of surrogacy as proposed in the draft ART Bill 2010 are found to inconsistent with the tenets of existing statutes or legislations secondly for its failure to comply with the mandate of international human right convention and inconsistency with established legal principles. These are briefly discussed as follows:
- Inconsistency with Indian Evidence Act 1872 & Issues of Definition of legal parentage under ART Bill : Firstly the Indian Evidence Act under its relevant section sets the basic ground rule which establishes the paternity of the child and the presumption of legitimacy of birth for all legal purposes under the Indian law. This rule in very simple terms states that “a child born during the continuation of a Marriage, the husband of the woman giving birth is presumed to be father of the child”. Taking after this law, the women giving birth during the continuation of valid wed lock is held as the mother in the eyes of law. Consequently on this determination of motherhood, vests with the birthing mother and fatherhood of the child is determined to vest in a person who is the husband of that birthing mother. Thus applying the logic of this law in case of surrogacy, the surrogate mother and her husband may be legally presumed to be the legal mother, father of the surrogate child. On the other side , the ART Bill under its relevant provision states that the Intending father or the intending couple shall be the parent of the child not the surrogate mother or her husband  and it is the intending father whose name shall be mentioned in the birth certificate of the surrogate child as the parent. The surrogate mother is specifically removed from the claim of parenthood. However, such provisions of ART Bill stipulating of parentage runs counter to the existing cardinal law of legal presumption of parentage.
This rule of legal presumption under evidence law also implies that the act of gestation, delivery with the wedlock is the criteria for legal recognition of motherhood and consequently parentage of the child where under the ART Bill the criteria for vesting legal parentage is based on the intent or intention of the couple to raise the child and attain parentage. Hence there are marked difference in the conceptualization, legal definition of parentage and also in the distinct criteria of conferring parentage. This may give rise to many complications
2.Inconsistency with Indian Contract Act– Issues of Legality , enforceability and remedies against breach of surrogacy agreement : The provisions in the ART Bill providing for legal validity and enforceability of surrogacy agreement just as any other contract does not go well with the tenets of the Indian contract Act and the reasons for the same are identified and briefly discussed.
a.Lack of free informed consent & economic coercion , consent induced by coercion – Surrogacy agreement is defined under the ART Bill primarily as a contract enforceable in India sought to governed by the existing Indian contract Act. But in actual practice, the very fundamental precondition for an agreement to be called as contract is not satisfied by the surrogacy agreement. The contract Act stipulates that “a contract between the person(s) availing of assisted reproductive technology and the surrogate mother” or in another words as all agreements are contract if they are made by the free consent of the parties”  and that ‘consent is said to be free when it is not caused by coercion, inducement’. This signifies free, informed, voluntary consent is the crucial in terming an agreement as legally binding contract. But this foundational prerequisite of free consent is not complied in case of surrogacy agreement. It may be observed that in entering, signing surrogacy agreement by the surrogate mother there is want of free consent and economic coercion or compulsion and in certain cases inducement for the same. The surrogate mothers usually belong to disadvantaged socio economic background who are generally unfamiliar with English language, illiterate or barely educated to scribble their names or sign in the local language, they are not in a position to understand the contents of the agreement which include an array of legal terminology as suits, compensatory damages , medical jargons as in vitro fertilization, artificial insemination, financial terms as cheque payment , online bank transfer , escrow account , others and the implications arising from the same. Along with this the surrogate mothers are mostly poor , living below the poverty line and caught in long and short term debt including reclaiming house mortgage, education for children , medical treatment costs which coerce or compel these women to be surrogate mothers. As appropriately described by one of the surrogate mother in her testimony that “surrogacy is no choice but majboori or  compulsion. Under such context, surrogate mothers without such knowledge and understanding of the contents of the agreement the surrogate mother signs the agreement only in the dire need for monetary sum this states that the very legal foundation of the agreement is flawed for the want of free consent and consent caused by economic coercion or financial inducement to earn this large size of money to ease of the financial debts hence defeating the consent altogether.
3. Enforceability of surrogacy contract outside India involving foreign couples: The enforceability of surrogacy agreement as a legally binding contract both within India and outside India is questionable. At this point , it may well be stated that the ART Bill expressly imposes the territorial or geographic limitation on the enforceability of surrogacy agreement by declaring it to enforceable within India only. This means in foreign legal jurisdictions the surrogacy agreements have no legal effect rather these are null and void. These issues particularly affect the foreign intending couples who enter into surrogacy agreement in India but on their return back to respective foreign legal jurisdiction find the agreement of no legal value. This was clearly evident in the case of Baby Manji where Japan refused to accord legal recognition to surrogacy agreement entered in India as Japan prohibits surrogacy due to breach of legal definition of motherhood contained/ provided under its civil code. Similarly in case of Jan Balaz  Germany rejected legal recognition to surrogate motherhood as a means of attaining parenthood, and any such surrogacy agreement to this effect as Germany bans commercial surrogacy under its laws
i.Inapplicability of remedies for the breach of contract : In addition to this the remedies for the breach of agreement as listed under the Indian contract law as legal action or suit for damages may not be applicable in case of surrogacy arrangement owing to typical situation , context of the surrogate motherhood. This may be seen where the surrogate mother due to her emotional attachment refuses to handover the custody of child after birth, or where surrogates seeks to terminate her pregnancy in these cases the intending couple may not bring a suit of suit for specific performance against the surrogate mother and force her to continue the pregnancy against her will or surrender the child or alternatively it may be difficult to quantify and calculates damages for such actions. Thus on various grounds surrogacy agreements not only are inconsistent with the basic tenet of contract law but also raise issues that challenge the enforceability, legality of this as a legally valid contract.
4. Inconsistency with Medical Termination Of Pregnancy Act 1971 & Issue of right to reproductive freedom to termination of pregnancy : The ART Bill is drafted with clear disregard and indifference to the reproductive freedom guaranteed under the relevant provisions of the MTP Act. Under this legislation any adult Indian women may seek termination of her pregnancy upto 12 weeks from a registered medical practitioner subject to the conditions as prescribed under the Act , thus this legislation provides women a qualified right to seek abortion on medical grounds. The Act enumerates certain grounds on which pregnancy may be terminated by women , one such ground is the risk to the life of the pregnant woman or of grave injury physical or mental health coupled with determination of extent of risk based on pregnant woman’s actual or reasonable foreseeable environment .
But under the ART Bill there is no mention or rather complete omission of any such provision dealing with the right of surrogate mother to seek termination of her pregnancy in compliance with the provisions of this law. On the contrary the ART Bill imposes both positive and negative legal obligation on the surrogate mother not to engage in any conduct that may harm the surrogate child in womb and correspondingly to maintain such conduct that ensures well being of the surrogate child including subjecting the surrogate mother to life support, multiple pregnancy , foetal reduction among others. Failure on the part of surrogate mother to comply with the same may be deemed as breach of contractual obligation on the part of surrogate mother for which she may be held liable for legal action or she may be prosecuted against for the same. This eventually results in denial of right to seek medical termination of pregnancy of surrogate mother which is an established statutory right guaranteed to every women in India including the surrogate mother. Such provisions in the ART Bill would amount to arbitrary interference with the exercise of the statutory right which may not be acceptable. In this regard, it may be noted that either the termination or the continuation of pregnancy is one of the basic reproductive freedom enjoyed by women and such freedom is intrinsically linked to right to dignity, bodily autonomy integrity , right to person of women which are the core constituent of right to life and liberty of an individual under article 21 of constitution of India . Denial or Omission to address such freedom for women is violation of basic right to life , dignity integrity of person of women which is violative of both constitutional fundamental right, statutory right namely Protection of Human Rights Act 1993 as well as human right under international human right conventions namely UDHR, UN ICCPR UNCEDAW all these instruments similarly uphold the right to right to dignity , life, liberty of person. Thus surrogacy constitutes a contract controlled pregnancy where in the surrogate mother is paid under the surrogacy agreement as per the necessary terms and conditions which regulates the surrogate mother pregnancy or her bodily freedom at the exclusion of her basic human right and freedom purely on monetary considerations. This is the apposite of the national , international legal instruments.
5.Inconsistency with Hindu Adoption Maintenance Act 1956 & Issues of payment in exchange of custody , guardianship rights: There is an underlying commonality in both the laws the ART Bill, Adoption Act providing for the transfer of the custody , parentage rights of the child from one set of parent to another parent, but in the ART Bill there is monetary exchange or payment under an agreement where as under the Adoption law the same is prohibited and penalized as an offense under the law. Thus there is a clear antithesis between surrogacy and adoption law. Certain provisions in the / The ART Bill providing for monetary payment or financial returns to be made from intending couple as one parent or guardian to another parent as surrogate mother and her husband for gaining the transfer or exchange of custody , parentage rights of the child runs counter to the basic premise of adoption law at national level as prescribed under the Hindu Adoption Maintenance law which prohibits monetary payment for gaining custody or parentage or guardianship over the child as well as at the international level as prescribed under the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, both these instruments prohibit payment in consideration of the adoption of any person.
6. Inconsistency with Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 & Issues of sex selective surrogacy: Considering the skewed sex ratio and alarming rise in cases of female feticide , pre birth sex selection through Pre-Conception and Pre-Natal Diagnostic Techniques medical technology is strictly prohibited in India. The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994 has been amended in the year 2003 as the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act 2003 (PC & PNDT Act) to bring the contemporary pre conception sex selection techniques used by infertility clinics under its regulatory purview. In the landmark case of Voluntary Health Association of Punjab Vs. Union of India & Others, the supreme court has brought all the infertility clinics under the ambit of PCPNDT for better enforcement of the Act. But in actual implementation it has not been effective. Accordingly the ART Bill prohibits sex selective surrogacy but the ART Bill permits the conduct of Pre genetic diagnosis (PGD) which is misused for sex selection. It has been found pursuant to research study that PGD while screening for genetic disease also screens for sex linked diseases which determines the sex of the foetus accordingly sex selective surrogacy is facilitated. The research studies have clearly indicated the role of ART in sex selection , UN Women, UNFPA in their report titled ‘Implementation of the PCPNDT Act in India: Perspectives and Challenges’ April 2010 which list ART technology Surrogacy as the contemporary trend in sex selection. During this pendency of Bill, the infertility clinics do not comply with any law and conduct gender selection under the garb of conducting Pre-implantation Genetic Diagnosis (PGD) with no stringent legal action against the same. it may be rightfully mentioned here that in Varsha Laxman Deshpande vs The Municipal Commissioner a NGO based in Mumbai filed a complaint at the magistrate court against a hindi film actor for conducting the genetic testing including PGD and other techniques to ensure the birth of male surrogate child thus violation of the PCPNDT Act, following this the Mumbai HC issued a legal notice against the film celebrity and the court directed the civic body for necessary investigation in the same. Thus it is obvious that the Bill may lead to misuse of technology and may cause secretive sex selection under the guise of using genetic testing techniques during surrogacy
7.Failure of India’s international human right commitment to UNCRC prohibiting offense of child trafficking- Considering India’s international human rights commitment, obligations to UN Child Right Convention (UNCRC) 1989, UNCRC Optional Protocol to the Convention on the Rights of the Child on the Sale of Children  prohibiting sale of child and India’s ratification of UNCRC thereby enactment of Child Commission Actwhich reinforce India’s allegiance and commitment to UNCRC along with the constitutional provision which prohibits human trafficking. Under such context, India‘s legalization and large scale practice of commercial surrogacy without strict, effective regulation on checking or controlling the illegalities associated with it including trafficking or sale of child under the garb of commercial surrogacy merits both consideration and criticism.
It may be pertinent to mention here that though the ART Bill in its very preamble and statement of objective seeks to controlling misuse of surrogacy. But it has been found that the ART Bill 2010 provides for a range of offences and penalties under its relevant section but the Bill does not provide for the offense of child trafficking as misuse of surrogacy among them. Such absence of provision does not go well India’s commitment to UNCRC mandate, protection of child rights and prevention, controlling of child trafficking among others.
Such omission has led to misuse of technology and cases of trafficking of children. It may be worthwhile to mention a recent case of child trafficking under the garb of commercial surrogacy wherein the a gynecologist running an infertility clinic at Porbander Gujarat are charged under human trafficking, It has been reported in the news recently that a “Gujarat doctor booked for selling baby” . The Police had leveled charges for illegally selling babies under several sections of Indian Penal Code IPC for illegally selling off the baby, intentional fraud and offence of conspiracy. Parallelly at the international level , in California, USA Theresa Erickson an internationally renowned reproductive law attorney based in California who has been charged for baby selling by running an illegal surrogate baby ring under the garb of commercial surrogacy as she sought to create genetically desirable babies for over $100,000 each and auctioned these children online and obtained fake parental order deceiving the court of California and prospective parents, she has been charged with human trafficking, conspiracy, fraud and subject to criminal sanctions at the Federal Court in San Diego .
In many foreign legal jurisdictions, commercial surrogacy is held as baby selling or sale of child or offering baby for a price under surrogacy agreement equivalent to making baby into commodity. This was explicitly established in the case of Re Baby M case of New Jersey which held commercial surrogacy as baby selling and breach of public policy and therefore strictly prohibited the same. In keeping with this reasoning several other foreign legal jurisdictions have prohibited commercial surrogacy amounting to child trafficking namely UK Under the UK Human Fertilization and Embryology ( HEFA) Act 2008 , New South Wales, Australia Surrogacy Act 2010, Canada Assisted Human Reproduction Act and in many European nations as France under its French Civil Code , Germany Federal Embryo Protection Act , Italy Medically Assisted Procreation Act , Sweden Genetic Integrity Act. Considering such illegalities, misuse, malpractices associated with surrogacy among other issues the Law commission undertook a review of the same and generated a report on the same. It may be appropriate to refer to the Law Commission Report titled as No. 228 of the year 2009  recommends against commercial surrogacy and supports altruistic surrogacy to be legalized in India. But the ART Bill clearly does not pay attention to the same. This shows failure by India to comply with the India’s international human rights commitment and treaty obligation after India has signed, ratified UN Child Right Convention UNCRC 1989and seeks to protect and promote child rights and prohibits child trafficking.
8.Failure of India’s international human right commitment to UNCEDAW – Maternal Health safeguards- Right to reproductive or maternal health has been accorded adequate legal protection at both national level and at the international human right convention namely UNCEDAW to which India is a state party as well. In Laxmi Mandal vs Deen Dayal Harinagar Hospital the Delhi high court 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”, thus the right to reproductive or maternal health has been equated to the status the most primary fundamental right namely right to life under Indian constitution. Similarly in PUCL v UOI case the Supreme Court after referring to relevant international human right conventions upheld the right of women to reproductive or maternal health and granted legal cognizance to right of women bodily autonomy , to decide the terms and conditions of pregnancy, the court identified a cluster of beneficial maternal health schemes namely Janani Suraksha Yojana (JSY), the Integrated Child Development Scheme (ICDS), the National Maternity Benefit Scheme (NMBS) and directed the state to implement and enforce the same , the court further held that the central objective of this scheme is to secure right to reproductive health of the mother as basic human rights as enshrined in the Constitution of India. At the international treaty level, for the first time ever it must be significant to observe that the reproductive or maternal health, the International Conference on Population and Development (ICPD) held in Cairo in 1994 for the first time universally established the reproductive right as human right and sought maximum protection and respect for the reproductive rights. Similarly at women specific human right convention the UN CEDAW  under relevant provision and also the UN Committee on the Elimination of Discrimination against Women explicitly states reproductive health as a basic right under the Convention and the committee recommends the state parties to ensure universal access to a range of reproductive and sexual health care services to be made available to women. The committee recommends the States parties to ensure women appropriate services in connection with pregnancy, confinement and the post-natal period and to initiate measures to reduce maternal mortality and promote safe motherhood services, insurance.
Despite the established maternal or reproductive health safeguards at the national international laws, the ART Bill not only negates these rights from surrogate mother but causes reproductive health exploitation of the surrogate mothers and subject to a range of long term , short term health risks to the extent of maternal mortality. The practice of surrogacy arrangement in the present form has been a testimony to the same.
The ART Bill is silent on the grant of right to medical termination of pregnancy to the surrogate mother. Additionally , the ART Bill does not mention right to post delivery care for surrogate mother in order to reinstate the health of the surrogate mother for any sickness , health disability arising out of surrogate pregnancy. Though the insurance is mentioned under the ART Bill but it is made conditional to availability of schemes and thus not necessarily available in all cases. on the other side , the surrogate mother is subject to a host of fetal health risks as established by the UK HEFA and by American Society for Reproductive Medicine (ASRM)  some of these risks are Ovarian hyper-stimulation syndrome (OHSS) following over dosages of fertility drugs, swollen stomach, stomach pains, nausea and vomiting, Miscarriage, Multiple births including (twins, triplets or more), Ectopic Pregnancy when an embryo develops in your fallopian tube rather than your womb, general drug reaction as Mild bruising nausea. There have been a few cases of the death of surrogate mothers but in none of these cases monetary compensation has been given to the surviving family of the late surrogate mother or in the other cases, the surrogate mothers are not provided any post delivery care or treatment for any health disability following such pregnancy that may surface in near future. At this juncture some these cases of maternal mortality of surrogate mothers may be discussed A surrogate mother below 30 yrs, named Easwari, died after giving birth to a surrogate baby at a surrogacy clinic in Coimbatore in Coimbatore, Tamil Nadu in the year 2009. Another Surrogate mother Premila Vaghela about 36 years died in eight month of her pregnancy giving birth to a premature surrogate child at Anand Gujarat in the year 2012, but no insurance was provided in these. The Doctor , owner of the Hospital Dr.Nayana Patel said on the death of PramilaVaghela,“at present the contract signed between the surrogate mother and the couple does not talk of any compensation in case of death of the surrogate mother, those who agree to become surrogate are told well in advance about the complications involved in pregnancy”. Thus it was stated that the surrogate paid the cost with her life. This shows gross violation of right to reproductive health of surrogate mother.
Thus the ART Bill not only lacks reproductive health safeguards but also selectively omits to mention the crucial reproductive health rights to the surrogate mother this is sufficiently not in keeping with the national, international human rights guarantee and India’s international traty obligation as well.
Conclusion – Surrogacy is marred with many legal issues along with other social , ethical issues . Thus there are many contesting legal issues in legalizing commercial surrogacy, yet the Government of India as well as the Supreme court of India has legalized commercial surrogacy. The draft ART Bill also endorses the same. In the face of such unresolved legal issues, the decision of Government of India to legalize commercial surrogacy needs reconsideration alternatively amendments in the existing statutes that may be necessary to bring co existence of surrogacy law with the existing statutory laws . These legal issues necessitate urgent redressal and resolve.
 By Sonali Kusum , Ph.D Research Scholar , NLSIU Bangalore.
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W.P.(C) 8853/2008 , see also , People’s Union for Civil Liberties v. Union of India) (PUCL Case), W.P.(C) Nos. 8853 of 2008 & 10700 of 2009
 Ibid, ¶ 27.
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