Surrogacy Contracts In India
Author: LawSphereX
Category: General Law
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SURROGACY CONTRACTS IN INDIA
Adv. Harshada Ishwar Chaudhari, B.Sc., LLB, LLM, Shri. Navalmal Firodia Law College, Pune (SPPU)
ABSTRACT
“In the fertile plains of legal discourse, where human compassion meets contractual intricacies, the phenomenon of surrogacy contracts in India emerges as a captivating narrative, weaving through the fabric of law and morality. ” In the early 2000s, surrogacy became popular in India due to its affordable medical services, skilled healthcare providers, and loose regulations. However, worries about exploitation led to government action, resulting in the Surrogacy (Regulation) Bill to clarify legal issues around surrogacy contracts. India’s Surrogacy (Regulation) Act, 2021 now governs surrogacy contracts, prohibiting commercial surrogacy and limiting altruistic surrogacy to married Indian heterosexual couples of at least five years. These rules prioritize ethics and safeguard the rights of surrogate mothers and children born through surrogacy.
Surrogacy contracts in India limit commercial surrogacy and specify criteria for altruistic surrogacy, ensuring ethical standards and protecting the rights of all involved parties. The contractual adequacy in addressing the rights, responsibilities, and welfare of surrogate mothers, intended parents, and children, and proposing improvements for fairness, ethical integrity, and legal compliance. The legal frameworks governing surrogacy contracts in India strive to balance the interests of surrogate mothers, intended parents, and children, yet there is a gap in addressing their rights and welfare comprehensively, suggesting a need for reforms to enhance fairness, ethical standards, and legal compliance.
Proposing thorough legislation for surrogacy contracts, covering rights, fair compensation, healthcare access, parentage recognition, and strict oversight to prevent exploitation and maintain ethical standards. The researcher has undertaken the topic to analyse the legal, ethical, and social dimensions of surrogacy contracts in India and propose reforms to ensure fairness, protection, and ethical integrity for all parties involved. Keywords: Fair compensation, Legal Frameworks, Medical Services, Surrogacy Contracts, Surrogate Mother.
1. Introduction
Surrogacy stands as a testament to the remarkable possibilities and intricate challenges presented by advancements in reproductive medicine. On the one hand, it offers a path to parenthood for those unable to conceive or carry a pregnancy. 1 On the other hand, it demands rigorous scrutiny of legal mechanisms, ethical implications, and the protection of the most vulnerable parties: the surrogate mother and the child. In India, the regulation of surrogacy contracts has undergone significant evolution to address a complex set of concerns. From early guidelines by the ICMR to the recent Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021, a conscious effort has been made to create a robust legal framework.
Despite this, there remains a strong sense that the current contractual model might not fully address the nuanced realities of surrogacy and the rights of all those involved. Surrogacy contracts, while necessary for establishing the terms of the arrangement, may be insufficient as the sole instrument of protection. One fundamental limitation lies in the inherent power imbalance between intended parents, often more financially secure, and surrogate mothers, potentially coming from less privileged backgrounds. This raises questions about the true voluntariness of consent, the potential for subtle pressures, and the long-term consequences of decisions made under duress. Furthermore, the medical and psychological complexities of pregnancy and childbirth can’t entirely be foreseen or addressed in a contract.
Complications can arise, putting even well intentioned contracts under strain and compromising the health and well-being of the surrogate mother. Additionally, the emotional reality of carrying and relinquishing a child often transcends the written terms of an agreement, creating situations unanticipated by contractual language. Crucially, the central focus on the child’s welfare must extend beyond immediate birth and parentage. Surrogacy raises fundamental questions about the child’s right to identity, the potential for future psychological impact upon learning of their origins, and access to medical or genetic history. Moreover, the societal implications of 1 Better Health, Surrogacy, https://www. betterhealth. vic. gov. au/health/healthyliving/surrogacy, Last seen on 05/05/2024.
surrogacy cannot be overlooked. Concerns exist regarding the impact on the traditional concept of family, the potential for a stratified reproductive system along class lines, and the risk of commercialization that commodifies human life. This research sets out to dissect the existing structure of surrogacy contracts in India, illuminating areas where the law falls short of its desired objective. A comprehensive analysis demands that we move beyond contractual obligations and explore the social, ethical, and psychological dimensions of surrogacy. Proposing reforms will encompass not only technical legal improvements but a holistic re-examination of societal safeguards and support systems designed to protect surrogate mothers, intended parents, and the children above all else.
This study’s ultimate goal is to advocate for a regulatory framework that transcends mere contractual sufficiency. The aim is to foster an environment where surrogacy, if pursued, is conducted within a framework that upholds human dignity, prioritizes long-term welfare, and embodies principles of equity and justice.
2. Meaning and Concept of Surrogacy
Surrogacy, has emerged as a new level of scientific advancement for reproduction with the usage of womb of a woman to reproduce children for another woman. One of the most efficient methods to overcome both biological and social infertility is ‘Surrogacy’. Surrogacy has provided opportunities to have a genetically related child to the couples who are unable to reproduce through artificial reproduction and in vitro fertilization. Surrogacy has become an attractive alternative for couples and individuals who wish to have a child biologically related to them. The concept of surrogacy has become widely recognized all over the world. Surrogate motherhood is considered as a boon by infertile couples as it is revolutionary hope for having a child. 2 Surrogate comes from the Latin word ‘surrogare’, which means ‘to put in another’s place,’ or ‘to substitute’.
3 A type of pregnancy in which a woman carries and gives birth to a baby for a person who is not able to have children. In a surrogate pregnancy, eggs from the 2 Das, S. s & Maut, Priyanka, Commercialization of Surrogacy in India: A Critical Analysis, JCC Law Review ISSN - 2231 296X. V. 14 – 29, Last seen on 05/05/2024.
3 https://www.vocabulary.com/dictionary/surrogate#:~:text=Surrogate%20comes%20from%20the%20Latin,hav
e%20his%20own%20biological%20children, Last seen on 05/05/2024.
woman who will carry the baby or from an egg donor are fertilized with sperm from a sperm donor to make an embryo. The embryo is implanted in the uterus of the surrogate mother, who carries the baby until birth. Surrogate pregnancy may be an option for men or women who want to have children and have had certain anticancer treatments, such as chemotherapy or radiation therapy, that can cause infertility.4
3. Types of Surrogacies-
Surrogacy can be categorized in two main ways: a) Altruistic Surrogacy: “altruistic surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative. 5 This form involves a close friend or relative acting as a surrogate without any formal contract or significant financial compensation. The surrogate’s primary motivation is to help the intended parents build a family. Reimbursement for medical expenses and other pregnancy-related costs is common, but the surrogate doesn’t receive a substantial fee.
6 b) Commercial Surrogacy: In contrast, commercial surrogacy involves a formal agreement and payment of a significant sum of money to the surrogate. This compensation is viewed as income for the service provided, in addition to covering medical and other pregnancy-related expenses. Essentially, commercial surrogacy treats surrogacy as a compensated service. In altruistic surrogacy, a close friend or relative carries the child for intended parents without a formal contract or substantial financial compensation, motivated by the desire to assist in family building. Conversely, commercial surrogacy entails a formal agreement
4 National Cancer Institution, Surrogate,
https://www.cancer.gov/publications/dictionaries/cancerterms/def/surrogate-pregnancy, Last seen on 05/05/2024.
5 S. 2(b), The Surrogacy (Regulation) Act, 2021
6 Conceive Abilities, The Different Types of Surrogacy,
https://www.conceiveabilities.com/about/blog/thedifferent-types-of-surrogacy, Last seen on 05/05/2024.
and significant payment to the surrogate, treating surrogacy as a compensated service, covering medical expenses and providing additional income.
4. Historical Background of Surrogacy –
Hindu mythology also offers instances of surrogacy and reflects the secrecy that still surrounds surrogacy practice. In Bhagavata Purana, Vishnu heard Vasudev’s prayers beseeching Kansa not to kill all sons being born. Vishnu heard these prayers and had an embryo from Devaki’s womb transferred to the womb of Rohini, another wife of Vasudev. Rohini gave birth to the baby Balaram, brother of Krishna, and secretly raised the child while Vasudev and Devki told Kansa that the child was born dead. 7 Hindu mythology’s depiction of surrogacy, as seen in the Bhagavata Purana, underscores the enduring veil of secrecy surrounding this practice. In the Mahabharat, Gandhari did not deliver a child rather delivered a semi solid material which was divided by Maharishi Vyas into 100 pieces and planted them in different pans. Thus, the 100 Kauravas were born.
Similarly, Maharishi Bhardwaj saw a divine nymph coming out of water after having a bath and seeing such a beautiful woman, he felt discern and deposited his semen in pot used for yagna called Darona. This is from where Dronacharya was born and named after the vessel. Thousands of years after the biblical events in 599 AD, the 24th Tirthankar, Mahavira, was born after an embryo had been transferred from one women’s womb to another one’s. He is one of the key figures of the Jain Mythology. Devananda, wife of a Brahmin named Rishabhdeva conceived him. The gods, ingeniously, transferred the embryo to the womb of Trishala. These mythological instances from Hindu scriptures, alongside similar narratives in other religious texts, illuminate the longstanding presence of surrogacy themes in ancient cultures.
They underscore the enduring secrecy and complexity surrounding the practice, offering insights into its historical roots and societal perceptions. Surrogacy contracts in India have been a topic of both interest and controversy. India 7 Jasdeep Kaur, “Surrogacy: A Paradox regarding Motherhood rights with Special Reference to India”:, Vol. II No. 1, 2012 The Legal Analyst (113 to 121) at 114.
emerged as a popular destination for surrogacy due to its relatively low costs, availability of medical expertise, and less stringent regulations compared to some other countries. However, in recent years, there has been a shift in the legal landscape surrounding surrogacy in India. Prior to 2018, India had a relatively liberal approach to surrogacy, allowing both altruistic and commercial surrogacy arrangements. Altruistic surrogacy involves a woman carrying a child for another person or couple without financial compensation, while commercial surrogacy involves payment to the surrogate beyond covering medical expenses. This led to concerns about exploitation of surrogates and ethical issues surrounding the commercialization of reproduction. In 2015, the Indian government introduced the Surrogacy (Regulation) Bill, which aimed to regulate surrogacy in the country.
The bill proposed several restrictions, including banning commercial surrogacy for foreign couples and limiting it to Indian heterosexual couples who have been married for at least five years and are unable to conceive a child. The bill also prohibited unmarried individuals, single parents, and same-sex couples from opting for surrogacy. In 2018, the Indian Parliament passed the Surrogacy (Regulation) Act, which effectively banned commercial surrogacy in India. The act only allows altruistic surrogacy for Indian couples who meet certain criteria, such as being married for at least five years and facing infertility issues. Additionally, the act prohibits foreigners, unmarried individuals, single parents, and same-sex couples from accessing surrogacy services in India.
Overall, the regulation of surrogacy contracts in India has undergone significant changes, moving towards stricter regulations aimed at protecting the rights of surrogates and addressing ethical concerns surrounding commercial surrogacy.
5. Surrogacy Regulation Act 2021 and other legislations:
1. Eligibility:
Intended Parents: Infertile, married Indian couples (23-50 years woman, 26-55 years man), with no living children (exceptions for disability or risk of death). Intended Woman: Indian widow or divorcee (35-45 years).
Surrogate Mother: Married woman (25-35 years) with a child, medically and mentally fit, no compensation beyond medical expenses and insurance. Can withdraw consent or terminate pregnancy.8
2. Restrictions:
Only altruistic surrogacy allowed (no financial gain for surrogate). Foreigners, single individuals, same-sex couples, live-in couples, and widowers excluded.
3. Criticisms:
Limited access for many who might need surrogacy. Focus on medical need over individual reproductive choice. Potential exploitation of surrogates through limitations on compensation. Reinforces heteronormative societal views. The Surrogacy Regulation Act, 2021, strives to establish ethical surrogacy practices in India. However, the strict limitations on eligibility and compensation raise concerns about restricted access and potential infringement on reproductive autonomy. Further discussions are needed to balance ethical considerations with the right of individuals to build families through surrogacy. A legislative measure is being considered that addresses the evolution of assisted
reproductive technology (ART) since the birth of the world’s second IVF baby, Kanupriya, in India in 1978. The rapid advancement of ART, including gestational surrogacy, has sparked legal complexities, as seen in cases such as a Gujarati grandmother giving birth to her daughter’s twins in 2004.9 Despite DNA evidence showing she’s not the biological mother, current Indian law recognizes her as such, necessitating the genetic mother to
8 NCBI, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10199460/, Last seen on 05/05/2024
9 Aditi Singh, Surrogacy in India: A Critical Analysis, Legal Methods And Research Methodology, 8, 3, Rajiv Gandhi National University of Law (2024).
formally adopt her own children. This legislative initiative aims to address such legal ambiguities surrounding ART, which often remain undisclosed due to societal stigmas.
6. Essential Elements of a Surrogacy Contract
a. Identification and Intent: i. Clearly defines all parties involved: intended parents, surrogate mother, and her spouse (if applicable). If using an agency, the agency is included. ii. Explicit declaration of intent from all parties, outlining the desire of the surrogate to carry a child for the intended parents and the intended parents’ goal of legal parenthood. b. Medical and Embryological Procedures: i. Choice of clinic and medical professionals. ii. Detailed description of fertility procedures, including IVF, embryo creation, and transfer. iii. Provisions for using donor gametes (sperm or eggs) if required. iv. Procedures in the event of multiple embryos and decisions regarding selective reduction. c. Surrogate’s Health and Conduct: i. The surrogate’s commitment to maintain a healthy lifestyle, prenatal care, regular medical appointments, and disclose all relevant medical history.
ii. Restrictions on activities potentially harmful to the pregnancy (smoking, alcohol consumption, etc. ). iii. Agreement on invasive procedures (amniocentesis, etc. ) and who has decisionmaking authority. c. Compensation and Expenses: i. Base compensation for the surrogate, including a detailed schedule of payments.
ii. Itemized list of reimbursable expenses, such as medical expenses, maternity clothing, travel, lost wages, legal and counselling fees. iii. Mechanism for managing funds (trust account, escrow, etc. ) iv. Additional compensation for scenarios like carrying multiple fetuses, bed rest, cesarean delivery, or invasive procedures. d. Termination and Risks: i. Conditions under which the contract can be terminated and by which party. ii. Provisions for medical termination of the pregnancy. iii. Assignment of liability/responsibility for medical complications, birth defects, or the child’s disability. e. Child’s Parentage and Birth: i. Establishment of the intended parents as the child’s legal parents. ii. Process for relinquishing the surrogate’s parental rights. iii. Obtaining a birth certificate and related legal procedures for establishing parentage. f. Confidentiality and Privacy: i.
Protection of personal information for all parties. ii. Limits on sharing information about the pregnancy or arrangement. g. Dispute Resolution: i. Mediation or arbitration procedures in case of conflicts. ii. Choice of governing law and jurisdiction.
Additional Considerations - Psychological Support: Counselling for all parties before, during, and after the process. Insurance: Provisions for health insurance for the surrogate and life insurance policies. Future Contact: Expectations for potential future contact between the surrogate, intended parents, and the child. Contingent Scenarios: Clauses addressing unforeseen situations like the death or incapacity of intended parents. The essential elements of a surrogacy contract cover all aspects of the arrangement, ensuring clarity and protection for all parties involved. They include identifying involved parties, outlining medical procedures, ensuring the surrogate’s health, determining compensation, addressing termination and risks, establishing parentage, maintaining confidentiality, and resolving disputes.
10 Additional considerations include psychological support, insurance, future contact expectations, and contingencies. This comprehensive summary encapsulates the key components essential for a thorough surrogacy contract.
7. Can the child be considered as consideration -
Surrogacy in India operates within a legal framework that permits altruistic surrogacy, where the surrogate is compensated only for reasonable medical expenses and other direct costs associated with the pregnancy.11 This approach contrasts with commercial surrogacy, which is prohibited in India, preventing the payment of a fee to the surrogate beyond reimbursement for expenses. The distinction between altruistic and commercial surrogacy reflects a legislative intent to prioritize the well-being of the parties involved, particularly the surrogate mother, and to prevent exploitation within the surrogacy arrangement. Within the context of Indian contract law, the concept of “consideration” holds pivotal importance. Consideration refers to the benefit or detriment that each party to a contract
10 Surrogate.com, INTENDED PARENTS Understanding Surrogacy Contracts,
https://surrogate.com/intendedparents/surrogacy-laws-and-legal-information/understanding-surrogacycontracts/, Last seen on 05/05/2024
11 The Surrogacy (Regulation) Bill, 2019
exchanges as part of the agreement. However, in the case of surrogacy contracts in India, a child cannot be considered as part of the contractual consideration. This distinction arises from the recognition that a child is a human being with inherent dignity and rights, rather than a commodity to be exchanged for financial gain. By excluding the child from the realm of contractual consideration, Indian law aims to safeguard the child’s best interests and prevent their exploitation within the surrogacy arrangement. The exclusion of the child from contractual consideration underscores the ethical and legal complexities inherent in surrogacy agreements. While surrogacy contracts in India are governed by the overarching principles of the Indian Contract Act, 1872, the absence of specific legislation regulating surrogacy creates potential ambiguities and challenges.
As a result, these contracts often rely on general contractual principles and relevant judicial interpretations. However, the reliance on broader legal frameworks may lead to uncertainties, particularly in cases of disputes or unforeseen circumstances, highlighting the need for clear and comprehensive contractual agreements. Given the intricate legal landscape surrounding surrogacy in India, individuals considering surrogacy arrangements are strongly advised to seek legal counsel from experts specializing in family law and assisted reproductive technologies. These professionals can provide guidance throughout the surrogacy process, ensuring that contracts are legally sound, ethically grounded, and protective of the interests of all parties involved, including the surrogate mother, intended parents, and most importantly, the child born through the surrogacy arrangement.
By navigating the legal complexities with diligence and expertise, individuals can embark on the surrogacy journey with confidence, knowing that their rights and responsibilities are safeguarded within a legally enforceable framework.
8. Commercialization of Surrogacy in India
Surrogacy in India has transformed a natural biological process into a commercial transaction, sparking debates and concerns on various fronts. Critics often refer to surrogacy arrangements in India as ‘baby booming business’, ‘wombs for rent’, or ‘parenthood by proxy’. The country has become a hub for surrogacy due to its availability
of surrogate mothers and relatively low costs compared to other nations. 12 Surrogacy clinics, particularly in cities like Anand, Indore, Pune, and Mumbai, act as intermediaries between prospective parents and surrogate mothers, attracting clients from around the world. While surrogacy offers financial opportunities for surrogate mothers, the process can be exploitative, especially for women from socio-economically disadvantaged backgrounds. Surrogates often receive payments in instalments over the nine-month pregnancy period, with potential forfeiture of fees if they fail to conceive or miscarry. Despite the significant profits generated by the surrogacy industry, surrogate mothers typically lack legal representation and rights under the contracts they sign.
The rise of surrogacy in India has raised ethical, legal, and social concerns, particularly regarding the commodification of reproduction and the exploitation of vulnerable women. Despite regulations banning the sale of human organs, commercial surrogacy continues to thrive, catering primarily to heterosexual married couples facing infertility issues. Surrogacy has become a lucrative sector in India, with estimates suggesting a market worth billions of rupees. This growth has been fueled by international demand, as couples from countries with stricter regulations or higher costs seek surrogacy services in India. Despite legal restrictions, the demand for surrogacy remains high, driven by the desire for biological parenthood and the availability of affordable options in India’s reproductive tourism industry.
9. Case laws-
In India, the legal framework surrounding surrogacy relies heavily on well-crafted contracts due to the absence of specific surrogacy laws. These contracts need to be robust and address the rights, responsibilities, and welfare of all parties involved: the surrogate mother, the intended parents, and the child born through surrogacy. Landmark cases like Baby Manji Yamada vs. Union of India (2009) highlighted the need for clear legislation in this area.13 While In Re Janaki (2000) allowed altruistic surrogacy,
12 Anindita, Transnational Commercial Surrogacy and (Un)Making of Kin in India, Oxford
13 Jwala D. Thapa, Landmark cases like Baby Manji Yamada vs. Union of India (2009) highlighted the need for clear legislation in this area, https://docs.manupatra.in/newsline/articles/Upload/B2DC0190-6995-4560- A6E06B65B4895120.pdf , Last seen on 05/05/2024.
it emphasized the importance of detailed contracts outlining parental rights, medical expenses, and dispute resolution mechanisms. However, current contractual practices often fall short. For instance, surrogate mothers’ rights and well-being might not be adequately addressed. Contracts may not fully explain potential health risks, the importance of informed consent, or proper psychological support during the process. Similarly, the financial burden of unforeseen circumstances like a child born with disabilities might not be clearly defined. To achieve fairness, ethical integrity, and legal compliance, several improvements can be made. Standardized contract templates, created by legal professionals specializing in family law and assisted reproductive technologies, could ensure clarity and comprehensiveness.
Additionally, an independent body could review these contracts to guarantee they meet ethical and legal standards. Finally, mandatory pre-surrogacy counselling for both intended parents and surrogate mothers would address the legal, medical, and emotional aspects of surrogacy, promoting informed decision-making. Surrogacy laws are constantly evolving.
10. Conclusion –
The landscape of surrogacy contracts in India is complex and multifaceted, reflecting a delicate balance between medical advancements, legal frameworks, and ethical considerations. From its historical roots in ancient mythology to its modern-day regulation under the Surrogacy Regulation Act, 2021, surrogacy has evolved significantly, driven by advancements in assisted reproductive technologies and changing societal norms. The Surrogacy Regulation Act, 2021, marks a significant milestone in the regulation of surrogacy in India, aiming to protect the rights of surrogate mothers, intended parents, and children born through surrogacy. By prohibiting commercial surrogacy and limiting altruistic surrogacy to married Indian heterosexual couples, the act prioritizes ethical considerations and safeguards against exploitation.
However, challenges remain in ensuring comprehensive protection for all parties involved in surrogacy arrangements. The inherent power imbalance between intended parents and surrogate mothers, coupled with the complexities of pregnancy and childbirth, underscores the need for robust contractual agreements and supportive regulatory frameworks. Moving
forward, reforms are necessary to address the gaps in existing surrogacy contracts and legislation. Standardized contract templates, independent contract review mechanisms, and mandatory pre-surrogacy counseling can enhance clarity, fairness, and ethical integrity in surrogacy arrangements. Ultimately, the goal of surrogacy regulation in India should be to create an environment where surrogacy is conducted ethically, transparently, and with utmost respect for the rights and wellbeing of all involved parties. By striving for comprehensive legal frameworks, informed decision-making processes, and equitable access to surrogacy services, India can uphold the principles of justice, dignity, and compassion in the realm of assisted reproduction.
References: a) Books referablei. Daisy Deomampo, Transnational Reproduction race, Kinship, and Commercial Surrogacy in India, (Sage, 2017) ii. Anindita, Transnational Commercial Surrogacy and the (Un)Making of kin in India, (Oxford, first ed, 2017). b) Bare Acts – i. The Surrogacy (Regulation) Act 2021 ii. The Constitution of India, 1950, iii. The Indian Contract Act, 1872 c) Articles referablei. Landmark cases like Baby Manji Yamada vs. Union of India (2009) highlighted the need for clear legislation in this area ii. Surrogacy in India: A Critical Analysis, Legal Methods And Research iii. INTENDED PARENTS Understanding Surrogacy Contracts d) Websites i. https://www.scconline.com ii. https://www.legalserviceindia.com iii. https://www.indiatimes.com iv. https://www.ebcreader.com v. Surrogate.com