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In all cultures of the world, motherhood is something which is considered to lie at the heart of the meaning of love. The concept of a woman’s love for her children is viewed as the most powerful, ferocious, tender and unconditional love that exists. Motherhood for Indian women is a psycho-spiritual phenomena and not just a psycho-sexual one. This psycho-spiritual meaning of all the institutions of socialization, particularly marriage of which a child is the outcome, makes the Indian context different from other societies. The preparation for mother-baby interactions begin much before a woman actually attains motherhood .  Now the term motherhood is expanded to the surrogate motherhood, which means that  a women helps women i.e. if  any women, couple  cannot conceive on their own and want a baby , they now have modern technologies to allow them to have children . Some use medical treatments to overcome this situation , for some no help is available and  surrogacy comes to the rescue . Need of surrogacy arises when woman is unable to carry a child due to failure of embryo to transplant, repeated miscarriages, hysterectomy or pelvic disorder, dangerously high blood pressure and heart or liver disease1 .


Surrogacy was known and practiced  in ancient times also . One of the first ancient references to infertility occurs in Genesis, when Jacob’s wife, like many of her Biblical peers, was unable to bear a child.  After praying to God and begging her husband, she sends Jacob

“unto” her maid and then adopts the resulting child as her own2. In Jewish law, a childless couple falls within the category of personal suffering and there exists a clear obligation to assist them in every permissible way, as long as no one is harmed in the process3.  The Catholic Church’s statement on assisted reproduction is clear: assisted reproduction is not accepted.  The Eastern Orthodox Church supports medical and surgical treatment of infertility, and the Baptist, Methodist,  Christian Science  all have liberal attitudes toward infertility treatments.  Islamic law encourages attempts to cure infertility, but only to the extent that IVF technologies involve the husband and wife. 

In  Hindu  culture, surrogacy  was known in the name of “Niyogi Pratha” in Mahabharta, Gandhari the wife of king Dhritrashtra  conceived , after which she delivered a mass ,  these cells were put in a nutrient medium and were grown in Vitro till full term . Sage Gautama produced two children from his own semen , a son Kripa and a daughter Kripi, who were both test tube babies, like wise sage Bhardwaj produced Drona , later to be the teacher of Pandavas and Kauravas4 . 


Surrogacy is a  practice  in which one  women (the surrogate mother) agrees  to   bear  a  child  for  another woman  or  a  couple   (the  intended  parents)  and    surrender  it  at  birth .  This  provides  an opportunity  for those  woman  who  are unable  to carry  a  child  themselves  to  overcome  their  childlessness 5. Surrogacy  is  a  method  of  reproduction   whereby   a  woman  agrees  to become   pregnant  and   deliver  a  child  for  a contracted  party,  she  may   be   the  child’s    genetic   mother  or  she   may,  as a gestational  carrier,  carry  the   pregnancy  to  delivery  after  having  been  implanted  with an  embryo.


According to  Webster’s New World Law Dictionary , New  Jersy ,  the legal definition of surrogate mother is -  A woman who bears a child for a couple that is unable to have children. Upon the child’s birth, the surrogate mother gives up all rights and responsibilities towards the child Surrogate parenting contracts were in earlier times held to be illegal under laws that forbade selling of babies; still strictly regulated., therefore the surrogate mother is the one who gestates ( becomes pregnant )  the child6.  The genetic mother is the one who donates her ovum.  The commissioning parents are the ones who receive the child from the surrogate after the birth of the child.       



There are two methods of surrogacy:

(i) Partial Surrogacy: When the child shares the genetic features of surrogate mother and commissioning father The commissioning mother has  no role in partial surrogacy.

(ii) Total Surrogacy:  In  this, IVF (In vitro fertilization) method is used . The gametes of both ( husband and wife) intended parents are implanted into the uterus of surrogate mother, as a result the child is the genetic child of intended parents.


(i) Commercial surrogacy: The  surrogate  mother  is  paid over and above  the necessary medical  expenses according to a contract between surrogate and intended parents.

(ii) Traditional surrogacy :  Surrogate  mother  is  artificially inseminated with  the  sperm of  intended father as sperm from a donor when the sperm count is low, In either case the surrogate’s own  eggs are used.

(iii) Gestational surrogacy:  In Gestational surrogacy  the  surrogate mother has no genetic ties to the off spring . Eggs and sperms are  extracted from the donors (intended parents)  and in  vitro fertilized and implanted into uterus of the surrogate mother.

(iv)  Altruistic surrogacy: In  this  method, surrogate is paid only the necessary expenses for bearing the child .


In India, surrogacy started in small township of Anand , South Gujrat which has now emerged as a major center of surrogacy as highlighted by a number of fertility clinics offering their services to wealthy and issueless foreign couples. The number of successful surrogate deliveries in  Anand is claimed to be the highest in the world. Wealthy couples make a beeline to Anand all the way from U.S. , U.K. TaiwanGermanySouth  Korea  and other countries7.

India’s first surrogate child ‘Durga’ was born in 1978 through In Vitro Fertilisation, three months after world’s first surrogate child Louise was born.


Commercial surrogacy though banned in several developed countries may soon become a reality in India through a bill to legalise commercial  surrogacy which  has been drafted by  the Indian Council of Medical Research in short ICMR8 . The bill is called as the Assisted Reproductive Technology  ( Regulation ) bill and Rules 2010 , in short known as ART . The draft bill consist of 50 sections and sub divided into 9 chapters . This  bill is  a document being awaited for almost a decade . It is a welcome  step by the Ministry  of Health and Family welfare ( MOHFW) and Indian Council and  Medical Research  ( ICMR) , although the Draft Bill attempts to incorporate many issues related to Assisted Reproductive Technologies (ART’s), it unfortunately carries on the vestiges of the drawbacks present  in  the National Guidelines on Accreditation, Regulation  and Supervision of ART clinics in India9 .

Some novel measures  that have been suggested in this Act are as follows:

A. SURROGACY AGREEMENT:  The bill provides an agreement between surrogate mother , commissioning parents and the ART clinic which makes the smooth running of the surrogacy contract. According to section 20 of the bill and  the rule 15 of THE ASSISTED REPRODUCTIVE REGULATION RULES 2010 the ART surrogacy arrangement will continue to be   governed by  contract amongst parties ,which will contain all the  terms requiring consent of surrogate mother to bear child, agreement of her husband and other  family members for the same, medical procedures of artificial  insemination , reimbursement of all reasonable expenses for carrying child to full term , willingness to hand over the child born to the commissioning parents . Form J is also mentioned for the agreement for surrogacy .

B. RIGHTS OF THE  SURROGATE:  The draft bill ensures rights to the surrogate mother according to section 34 of the ART  bill as under10:

Right to  physical integrity and bodily  autonomy  i.e. she cannot be forced to  abort the foetus, go through foetal reduction or  made to follow a certain diet.

Right of  no  sex selection , no antenatal testing even  with  the consent of the surrogate.

Right to make decisions concerning reproduction free of discrimination, coercion and violence .

Right to receive monetary compensation from the commissioning couple or individual ,  as the case may be , for   agreeing   to  act as surrogate .

Right to seek all medical treatments and procedures  for her health and  in relation  to the concerned child .

Right to receive certificate by the person or persons who have availed her services , stating that   she has acted as a surrogate for them 

Right not to disclose the confidential and private information about  the  surrogacy  to any one other than the central database of Indian Council of Medical  Research , except by an order of competent court .   

Right to have local guardian being appointed by the commissioning foreigner couple seeking surrogacy in India for taking care of the surrogate during and after the pregnancy.


C.  RIGHTS AND WELFARE OF THE CHILD                       

Clause 35 (1) of the draft ART bill states that  “ A child  born to a married couple through  the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple , having  been born in wedlock ,  with the consent of both the spouses , and shall have identical legal rights as  a legitimate child born through  sexual  intercourse” . The draft bill makes provision for  the child to seek information about donors and  surrogates   on attaining 18  years of age . Clause 36 (1) of the ART  bill  2010 states  that “ A  child may  upon reaching the   age of 18 , apply for any information excluding personal identification, relating to his / her genetic parents or surrogate mother”. 

D.  SEX  ELIGIBILITY:  The bill is liberal by using  the phrase married or unmarried couple as eligible for ART’s  , it does not  include within its ambit people who are not heterosexual and  their accessibility to ART’s . The bill  clearly  defines “ unmarried couple” as a man and a woman , both   of marriageable age , living together with mutual consent but without getting married (clause 2 dd of the ART  bill).

E. BIRTH  CERTIFICATE: According  to clause 35 (7 ) and 34 (10) of the  ART bill , the birth  certificate  of a child born through the use of assisted reproductive technology shall contain  the name or names of  the parent or parents,  as the case may be,  who sought such use i.e. commissioning couple. This  implies that the name of the couple seeking ART or commissioning  the surrogacy will be written  on the birth  certificate.  Thus the birth certificates bears the name of the genetic / gestational surrogate .


F. CERTIFICATES BY FOREIGN COUPLE :  According to section 34 (19)  foreign couple seeking surrogacy in India have to submit two certificates i.e. first an letter from the embassy  of their country in India or from the foreign ministry of their country that their country permits surrogacy and second that the child born through surrogacy in India will be   permitted entry  in  their country  as  their biological child so that the child can  get the citizenship of  commissioning couple .


The case of  Baby Manji Yamada v. Union of India11 concerned  production/custody of a child Manaji Yamada given birth by a surrogate  mother in Anand, Gujarat under a surrogacy agreement with her entered into by Dr Yuki Yamada and Dr Ikufumi Yamada of Japan. There were matrimonial discords between the commissioning  parents.  The Municipality at Anand issued a birth certificate indicating the name of the  genetic father.   The grandmother of the baby Manji, Ms Emiko Yamada flew from  Japan to take care of the child and filed a petition in the Supreme Court   under article 32 of the Constitution. The Court relegated her to the   National Commission for Protection of Child Rights constituted under the   Commissions for Protection of Child Rights Act 2005. Ultimately, baby  Manji left for Japan in the care of her genetic father and grandmother.

Thereafter was in the news the Israeli gay couple’s case12 The gay couple Yonathan and Omer could not in Israel adopt or have a surrogate  mother. They came to Mumbai. Yonathan donated his sperm.  They selected a surrogate. Baby Evyatar was born. The gay couple took son  Evyatar to Israel. Israeli government had required them to do a DNA test  to prove their paternity before the baby’s passport and other documents  were prepared.

Again similar  case is still pending in Supreme Court where a German couple Mr. Jan Balaz13 and his wife is trying to take their twins back through adoption with the due permission of Hon’ble Supreme Court .


Apart  from inconsistencies in the document , a  larger concern emerges from the outlook from which it approaches the issues . Everything  that is medically possible should not necessarily be legally permissible14 .  Law is an instrument of social engineering and must be developed with consideration for all sections of society , especially those that are more  vulnerable and marginalized ,  to prevent any kind of exploitation  . Since the draft bill seems to have been prepared mostly by people from medical  fraternity who are practicing ART’s , it appears to aid the growth  of the business of ART’s both within and outside the country rather than safeguard the health and  interests of the  women on whom these technologies are applied . The moral issues associated with surrogacy are complex and unsolved . This includes the criticism that surrogacy leads to commoditization of the child, which  breaks the thread of love between the mother and the child15, interferes with natural conditions  and leads to exploitation of poor women in  under developed countries who sell their bodies for money , so there should  be provision  for bane on the moral exploitation of surrogate mother .

This paper is an effort to point out the limitations in the draft bill so that they can be rectified and the suggestions incorporated for the development of a pro – people and pro women legislation .

Keeping in mind the  above  mentioned concerns,  before finalizing the draft  bill , a  wider  debate  across  the country be organized at various levels and regions and their responses be incorporated,  public hearings in different parts of the  country   with  active   involvement of women’s  and   health movements be organized and  comments and suggestions  be considered  very seriously in the interest of the health and   well being of the women of  this  country .


I recommend the  following  suggestive   points in the bill   for its smooth implementation :


Intended Parents Should be donor : It will be best in the emotional interest of child that one of the intended parents should be a donor as well because the bond of love and affection with a child primarily emanates from biological relationship , also the chances of child abuse will be reduced.


Risks to the offspring :  There  is no  provision in  the bill about the risks occurring to  the offspring whereas a study conducted between  May 2001 and  April  2004 at  the  New York University showed that intrauterine hormonal milieu may impact the   fetal and infant stages of children conceived by ART  , moreover first IVF twins born  at AIIMS revealed that the children born through IVF weighed  only 1.4 kg which clearly shows that  children born through ARTs  are  almost under  weight as compared to normal children and 70%  more likely  to be  premature ( born  before 37 weeks ) and more than  twice as likely to be born before 32 weeks, so there should be prompt provision as to  minimize the above mentioned  risks  to the offspring16 .

Place of information:  The draft bill makes provision for  the child to seek information about donors and  surrogates   on attaining 18  years of age , but at the same time it excludes information regarding personal identification and only in some cases  ( medical reasons ) allows disclosing the information with prior  consent of the donor or surrogate .   Clause 36 (1) of the draft bill  states  that “  A  child may  upon reaching the  age of 18 , apply for any information excluding personal identification , relating to his /   her genetic parents or surrogate mother” but the document does not make it clear where the  child needs to apply , since  the   semen banks , the ART clinics and the central database of the  ICMR will keep the records of the  donors  and the surrogates , so it is must and mandatory to have a provision in the bill about the place and person from whom the information can be collected about the surrogate if needed by the child. 

Right of physical, mental and social welfare: There is no  section in the draft bill which talks about the physical, mental and social welfare of  the child i.e. the  words physical , mental and social are not written anywhere in section 36 of the draft bill whereas it is necessary to mention some prompt measures about the physical ,mental and social welfare of the child, moreover  the only points mentioned  are  those granting legitimacy to  the children born  and the right of the child to have non identifying information about his / her genetic parents. Special measures need to be taken   to ensure welfare of the child  and  to take into account the age and health  and ensure that  the intended parents are of appropriate age and would be able to raise the child till he / she reaches majority.


Age:  The draft    bill  must  specify   its   stand regarding  the age of surrogate mother because  in clause 26  (3)  of ART bill the minimum  age is described as 21 years but rule  4.7.1  says that the  donor should be healthy women in the age group of  18 – 35 years , so the above discrepancy in clause 26 (3) and rule 4.7.1 should be removed

Payment To The  Surogate:   There is no clarity on financially compensating the surrogate , firstly according to form J of ART bill , on one hand it seems that the amount received by the surrogate will be mutually decided among surrogate and the intended couple , on otherhand semen bank sources out the surrogate, so there should be clear provision about how much amount will be paid to surrogate and to the semen bank so that surrogates from poor financial condition can get proper compensation and cannot be exploited .

Health Risks Of Surrogate :  Section  26 (8) of  the Bill permits a woman to donate her eggs six times in her life, at intervals of three months, which is hazardous for her health as the time period of 3  months is too early for a woman to start with hormonal injections for the creation of eggs therefore  this time period should be increased at least upto 6 months  so the surrogate will become physically strong to undergo medical procedure , now proceeding further section 34 (5) states that  woman may act as a surrogate for three successful births in her lifetime, including a maximum of three attempts at pregnancy for a particular couple , this takes the number of times for surrogate to undergo IVF cycles , thus jeopardizing her physical and mental health so a provision stating a gap of   at least  2  years should be made for a women to become a surrogate mother  .

Confidential Information:  On one side according to section 34 ( 12 ) of  the ART bill 2010 all the information about the surrogate shall be kept confidential and information about the surrogacy shall not be disclosed to anyone  and on other side in section 34 ( 17 ) it is stated that the surrogate mother shall be given a certificate by the persons who have availed her services , whereas instead of  giving or taking any certificate these records should be strictly kept in security and these should be disclosed only on  order of the competent court because the

* Dr.  Jaya Dadhich (Adv.)



1.  www.surrogate motherhood.com

2.  Genesis 16, Genesis 30,   Bible

3.  Joseph Schenker, “Religious Perspective,” in Surrogate Motherhood, International Perspectives, Portland: Hart Publishing, 2003.p

4.  Concept of Niyogi Pratha : Dr. P.V. Kane

5.  www.surrogatemother.com

6.  www.surrogate motherhood.com

7.  www.indian surrogatemother.com 

8. www.icmr.nic.in

9. http://lawcommissionofindia.nic.in

10. The Assisted Reproductive Technology(Regulation)Bill 2010

11. (2008) 13  Supreme Court Cases 518

12.  JT 2008 (11) SC 150

13.  (Union of India Vs. Jan Balaz) Jan Balaz Vs. Anand Municipality & Ors.Letters Patent Appeal No.2151  of   2009 

14.  http://www.clraindia.org/include/ART.pdf

15. http://www.clraindia.org/include/ART.pdf

16. www.answers.com/topic/invitrofertilisation

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