1. INTRODUCTION

Surrogacy is one of those changes, which has challenged both society and law, in terms of its recognition & regulation. Surrogacy can be viewed as a technique as well as a form of transaction, which parties resort to in order to  give rise to new relation towards each other. This relation is based on necessity and desire of the parties concerned to have their own genetically or biologically related child. Surrogacy is a ‘necessity’ for those who are economically vulnerable and are unable to maintain themselves with the help of available resources, and a ‘desire’ of those who are otherwise unable to procreate or conceive the child of their own.

The natural desire to have one’s own child has paved the way for recognizing the new techniques which aim at fulfilling the desire to have a child. Surrogacy is one such technique which is used across the globe. Moreover, surrogacy across India is extremely rampant, and in fact India is being considered as the hub of surrogacy transactions. This transaction is beneficial for both the parties: a commissioning parent, in fulfilling the need to have a child of their own, and a surrogate or gestational mother, to have some economic security through a sure source of livelihood.

Surrogacy is a well-known method of reproduction, whereby a woman agrees to give birth to a child who she will not raise, but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form of surrogacy) or she may be, as a gestational carrier, carry the pregnancy to deliver after having been implanted with an embryo.^[1] Let us now analyze some of the authoritative explanations or definitions, which may further throw a light on the concept.

American Law Reports^[2] defines surrogacy as a contract in the following lines:

“..a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the child’s birth.”^[3]

Additionally, the Black’s Law Dictionary^[4] categorizes Surrogacy into two classes: traditional and gestational surrogacy. It may be commercial or altruistic depending upon whether the surrogate received financial reward for her pregnancy or relinquishment of child.

Looking at the Indian scenario, the Indian Council for Medical Research^[5] defines ‘Assistive Reproductive Technology (ART)’ as:

“For the purpose of these guidelines, ART would be taken to encompass all techniques that attempt to obtain a pregnancy by manipulating the sperm or/and oocyte outside the body, and transferring the gamete or embryo into the uterus.”

The Supreme Court of India^[6] has defined surrogacy as:

“..a method of reproduction, whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracting party.”

Surrogacy: cluster of issues & complexities:

Surrogacy is being identified as one of the most complicated transaction encountered by the legal system or the legal fraternity. The researchers in this area are striving hard to arrive at the reasons that make this transaction so complex. In this context, three reasons can be cited:

1)      Number of issues and different stakeholders associated with a surrogacy transaction.

2)      Lack of clarity of law or the absence of law to deal with surrogacy; and

3)      Certain prohibitions in the existing framework that make the enforcement of surrogacy transaction difficult for the parties involved.

Surrogacy involves multi-factors & several issues that any legal system or law must keep in mind while formulating the regulations. Those factors range across emotional, natural, ethical, medical, financial and sociological aspects.

 In India, there exists a peculiar situation where surrogacy is not being regulated efficiently. This is because the legal status of a surrogacy transaction is unclear and hence, surrogacy is neither legal nor expressly prohibited by law. ^[7]

1. CONSTITUTIONAL AND HUMAN RIGHTS PERSPECTIVE OF SURROGACY TRANSACTION

Surrogacy is a complex relationship involving the transfer of custody of a child born out of an artificial reproductive technique, as against the order of nature or the conventional mode of reproduction, making it difficult for the parties to validly complete the transaction. The problem with international trade in surrogacy is its potential for abusing and exploiting women, for example, for prostitution. The very well-known American feminist Andrea Dworkin states that, “motherhood is becoming a new branch of female prostitution with the help of scientists who want access to the womb for experimentation and power.” Like adoption,^[8] surrogacy needs to be regulated on an international level. In the present scenario, there exists neither any convention nor any agreement regulating surrogacy at the international level. In such circumstances, where foreign parties travel for surrogacy services and enter into surrogacy agreements, the issue of the child’s citizenship arises because the home country of the international parents’ where the child is to be taken, may refuse to recognize the surrogacy agreement or the transaction might encounter prohibition. Thus, it becomes important to determine the woman who is to be considered the child’s mother for the purpose of identifying his citizenship.

To consider the human rights perspective of surrogacy, one must first know what human rights and whose human rights surrogacy transactions deal with. Surrogacy, as discussed above, mainly involves two parties. But from the human rights point of view, surrogacy should be viewed in relation to three parties. Those are:

1. Commissioning parties or those who are availing the services
2. Surrogate or Gestational mother or the one who is rendering the service
3. Surrogate child or pregnancy conceived through surrogacy or the one who gets birth due to a surrogacy transaction.

 

Surrogacy as under the framework of the Indian Constitution:

Under the Indian Constitution, a surrogacy transaction can be recognized indirectly by interpreting certain constitutional provisions. One of the vital interpretations is with respect to Article 21 which is understood to be wider than mere ‘animal existence,’^[9] and includes all aspects of life which make it worth living.^[10]  As opposed to the negative right of freedom from state interference, Article 21 has a ‘positive’ content encompassing the quality of life and ‘the right to carry on such functions and activities as constitute the bare minimum expression of the human self.’^[11]

Does right to privacy include right to reproductive choices?

In India, ‘the right to have reproductive choices’ has been declared as a part of Article 21 of the Constitution^[12]. The Supreme Court in the case of R. Rajgopal v. State of Tamil Nadu,^[13] held that the right to life includes the ‘right to privacy’. A citizen has a right to safeguard not only his own privacy but also of his family, marriage, procreation, motherhood, child bearing and education among other matters. The Andhra Pradesh High Court in B.K. Parthasarthi v. Government of Andhra Pradesh^[14] recognized reproductive rights as a fundamental right and upheld ‘the right to reproductive autonomy’ of an individual as a facet of his right to privacy. When the concept of privacy is extended to matters of procreation, state’s interference or restrictions on procreation amount to a direct encroachment on one’s privacy. Hence, even though the Supreme Court in Javed v. State of Haryana^[15] upheld ‘the two living children’ norm to debar a person from contesting a Panchayati raj election, it refrained from stating that the right to procreation is not a basic human right.^[16]

Generally, couples are unable to conceive or give birth to a child owing to the defects in the reproductive faculty of their body or owing to their infertility.^[17] So, if parties are unable to conceive a child on their own, the only option available to such a couple is that of surrogacy. Moreover, surrogacy, from the perspective of the ‘Surrogate Mother’ or ‘Gestational Mother’, is being considered as an opportunity for them to maintain themselves and as a tool to empower them financially.^[18] Even though surrogacy is considered as an immoral or unethical transaction and at times, also equated with prostitution,^[19] it has opened new avenues for poor women in India who are otherwise unable to fulfill their livelihood. It is in this sense that it has now become an organized industry in some parts of the country, which provides the poor women with living.^[20]

 

State’s positive obligation to recognize and regulate surrogacy:

There is a widespread perception in the society that surrogacy offers a good chance to the childless couple to fulfill their desire.^[21] But, since surrogacy is not specifically recognized by law,^[22] it becomes difficult for the parties to enter into a legal transaction of surrogacy or contract of surrogacy. This is because surrogacy involves ‘human being’ as an object or subject matter of transaction and such a contract may be against public policy and hence, void.^[23] It is in this situation that the state, as a part of its positive obligation^[24] under Article 21, must make provision or must recognize the mechanisms like surrogacy, so that parties who are unable to procreate child of their own, can legitimately exercise their right to ‘reproductive choices’.^[25]

 

Surrogacy in the bracket of Right to livelihood?

It is again, a matter of right of those women who are striving to meet their livelihood concerns and hence, an obligation on the state to recognize or provide a legal validity to surrogacy so that surrogates can legally opt for it to meet their financial and economic concerns. In fact, the state has a constitutional obligation to ensure the livelihood of its citizens, by creating or opening new avenues which may provide them with an opportunity to feed themselves.^[26] The expression ‘right to life’ under Article 21 includes ‘right to livelihood’^[27] and a ‘right to access resources of livelihood’^[28] as fundamental rights.

Hence, the State is under an obligation to make suitable arrangements or to recognize those techniques that can provide an opportunity to infertile couples and those who are otherwise unable to have their own genetically or biologically related child.

Surrogacy and Adoption- A ray of hope for the unblessed:

In this connection, the best example would be that of adoption. Adoption law provides an opportunity to not only the child (destitute or abandoned) to have a family but also to the couple to fulfill their desire of having their own child. By a similar reasoning, it can be argued that the state must recognize surrogacy transactions or techniques through which surrogacy transaction may be carried out.

The Supreme Court in the landmark decision of Baby Manji Yamada vs. Union of India and Anr.,^[29] legalized commercial surrogacy with a direction to the legislature to pass an appropriate law governing surrogacy in India. At present, a surrogacy contract between the parties and Assisted Reproductive Technique (ART) Clinics guidelines^[30] are the only two guiding forces for governing this transaction.

In yet another case, Jan Balaz v. Anand Municipality,^[31] a German couple entered into a contract with a surrogate mother and consequently, twin children were born. The question that arose was whether the children would be entitled to Indian citizenship by birth as they were born in India to an Indian national but the biological father was a foreign national. This was unprecedented in the legal history of India.

The High Court of Gujarat keeping in view the findings of Supreme Court in Baby Manji^[32] held that the primary concern is the relationship of the child with the gestational surrogate mother, and with the donor of the ova. In the absence of any legislation to the contrary, the courts will be inclined to give importance to the surrogate who has given birth to the child.

Surrogacy Law in Foreign Jurisdictions:

As far as the legality of the concept is concerned, reference of the Universal Declaration of Human Rights (UDHR), 1948 can be given, which ensures that “men and women of full age without any limitation due to race, nationality or religion have right to marry and find a family.”^[33] Under a wide interpretation of this provision, a surrogacy arrangement will be regarded as the opportunity for the infertile couple to have their own baby, which they were otherwise incapable of conceiving. States are under an obligation to respect this right under the head of right to reproduction ensured under this provision.

In Germany^[34], as the law stands today, surrogacy agreements are not recognized. Further, donation of eggs is prohibited and procedures such as artificial insemination or embryo donation are considered to be criminal offences but a recent ruling by highest court of Germany has paved a way towards the legalization of children born abroad via surrogacy by confirming status of Legal Parents.^[35] The case was concerning two gay men whose child was born via surrogate in California. The baby, born in 2010, was registered in the United States as the child of the two men. Upon returning home, the couple had been unable to persuade the German authorities to recognize the child as theirs, though the baby has been living with the fathers in Berlin for the last three-and-a-half years. The issue was brought up before the German supreme court, which ruled that the decisions of foreign authorities in such matters must be respected as “part of a child’s welfare to be able to rely on the parents to have continuous responsibility for its well-being,” but maintained that surrogacy on German soil remains forbidden.^[36] The situation is similar in Sweden, Norway, and Italy where the above-mentioned procedures may culminate into criminal prosecution^[37]. But, some countries like Belgium, Netherlands and England are a little more liberal. In England, surrogacy arrangements are legal and the Surrogacy Arrangement Act, 1985 prohibits advertising and other commercial aspects of surrogacy^[38]. The Act declares initiation and involvement in commercial surrogacy agreements to be a criminal offence.^[39]

In United States of America, many states prohibit commercial surrogacy. The Uniform Parentage Act, 1987 of the USA Federal statute neither expressly precludes nor approves the use of techniques with the help of which it can be carried out. Article 7 of the Uniform Parentage Act, 2000 version, discusses the parental status of the donor to state that the donor is not a parent of the child conceived by means of assisted reproduction.^[40] The Federal Supreme Court of USA in Eisenstadt v. Baird^[41] has recognized the ‘right to privacy’ as a fundamental right which includes the right to marriage, family, abortion, child rearing, procreation and education. The right to procreate, either as a married couple or as a single individual, was broadened and was given constitutional protection. Also, the Californian Supreme Court in Johnson v. Calvert^[42] extended the constitutional protection to surrogacy contracts and held them to be valid on the grounds of public policy as the surrogacy contracts involve free, informed and rational choice by a woman to use her body.

In Australia, surrogate mother is regarded as the legal mother of the child that creates legal obligations between them and hence, any surrogacy agreement giving custody to others is void and not enforceable. This discourages surrogacy agreements by making it a criminal offence in cases involving transfer of custody after surrogacy transactions. The only legal arrangement to take custody is to take the surrogate child through adoption process which validates this transaction. Moreover, commercial surrogacy is illegal and recognition is given only to altruistic surrogacy.^[43]

In Canada, the Assisted Human Reproduction Act, 2004 prohibits commercial surrogacy wherein a surrogacy arrangement involves an agreement with consideration. In France, surrogacy is completely prohibited irrespective of its nature as commercial or altruistic surrogacy. Thus, any surrogacy arrangement which involves transfer of custody of surrogate child is of no legal consequence.^[44]

Surrogacy in the Indian Scenario:

In India, surrogacy transactions are very rampant and foreigners come to India in  search of a surrogate and a surrogate child. As such, it is being considered as the hub of surrogacy in the world.^[45] It is also being considered as a suitable place for the surrogacy industry which is regarded as the genetic pool banks of India.^[46] India is emerging as a leader in commercial surrogacy and a destination of the so-called fertility tourism,^[47] because of low cost of medical services, easy availability of surrogate wombs, abundant choices of donors with similar racial attributes and lack of an effective law to regulate these practices. Specifically, no Indian law governs or regulates or prohibits surrogacy till date. Surrogacy arrangements in India are taking place in ignorance of law to just cater to the needs of the parties involved in the surrogacy transaction.

‘Surrogacy contract’ and National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005( “National Guidelines on ART”) are not sufficient to deal with the regulatory aspect of surrogacy as it gives rise to some complex questions. To deal with such questions of law,  issues and situations, a proper and effective regulatory framework is required that is capable of covering, governing, defining and regulating relationships and allied matters arising out of a surrogacy transaction. Surrogacy arrangement can never be a contract under the Indian Contract Act, 1872 as the subject matter of this contract is in fact a human being.

1. CONTRACTUAL ASPECT OF SURROGACY TRANSACTION: A REVIEW OF NATIONAL AND INTERNATIONAL PRACTICE

Primarily, in case of a surrogacy transaction, difficulty lies in recognizing its exact nature. Some view it as an industry, some as a service or as a contract for certain purposes. Absence of uniform regulations but presence of certain regulations which may prohibit such a transaction adds more complications to the surrogacy transaction. The centre of a surrogacy transaction is the involvement of a third party. Such a transaction or relationship arising out of it or legitimacy of the child born out of it is foreign to legal systems across the world. Most of the countries across the world either deem it partially or completely illegal or make it valid to the extent of altruistic surrogacy. In some countries, intended parents are recognized as the legal parents of the child born out of it either statutorily or by recognizing surrogacy agreements.

Across the globe, almost in all the disciplines of learning, surrogacy is being studied, researched and discussed upon, considering its very quality of affecting almost all the disciplines. The need for the discussion, deliberation and adoption of surrogacy as a part of society in general and legal system in particular is felt by the legal fraternity.^[48]

Legally, a surrogacy arrangement has been defined by the Indian Supreme Court as an agreement whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise, but hand over to a contracted party.^[49] Often it is done with intention of entering into a contract, or sometimes it can be inferred from the very transaction, that it’s an agreement between the two different parties.

In common parlance, the term refers to arrangement made between the two parties under which a woman (surrogate mother) agrees to:

1. to donate the egg and by artificial insemination, carry a fetus in the embryo of her own and give birth.
2. to carry the term of pregnancy with the help of fertilized egg.

In the case of surrogacy, a woman undertakes to bear a child for a childless couple and agrees to relinquish all parental rights at the birth of the child for a payment or other consideration which becomes void for its contravention of statutory enactments, since the contract involves bartering of human lives and also, infringes public policy.

As per the provisions of Indian Contract Act, 1872 legal contracts can be of following types:

1)      General contract^[50]

2)      Special Contracts^[51]

3)      Specific contracts^[52]

Thus, contracts can be classified into different heads depending upon the subject matter or purpose of the contract. With respect to surrogacy, it is difficult to decide under which type or under which head it falls. If surrogacy transactions were to be considered legal, then it must fall in the category of either specific or special contract. However, for them to be legal, it must satisfy all the requirements of contract law as given under the Indian Contract Act, 1872.

Apart from the contractual point of view, surrogacy can be treated as a statutory transaction also. However, this requires a particular statute which can govern the statute. In such a scenario, the question of legality of a surrogacy contract may not arise, as it would then be backed by statute governing the surrogacy relationship. Thus, because of such a situation, surrogacy transactions or the so-called surrogacy contract is giving rise to several questions, like:

1)      Surrogacy is neither protected by law, nor prohibited by law.

2)      There is no separate statute dealing with surrogacy and nor does the current legal system support it.^[53]

3)      Despite absence of any status or position in the legal system, surrogacy transactions are on their peak in some parts of India.^[54]

4)      Subject matter of surrogacy contract i.e. surrogate child is a human being and as such cannot be the subject matter or object of contract.^[55]

Provisions of Indian Contract Act, 1872:

As per the provisions of Indian Contract Act, 1872, a valid contract should have both, lawful consideration and object.^[56] At the same time, an agreement is considered to be immoral or opposed to public policy if its object or consideration is unlawful, forbidden by law or if it contravenes the provisions of any law.^[57] In this context, even though surrogacy arrangement fulfills the preliminary requirements of an agreement, the same may not be converted into a contract since it may not be an agreement enforceable by law.^[58]  Hence, it is very difficult to term a surrogacy agreement as a surrogacy contract, which raises doubts with respect to the enforceability of the claims, obligations and liabilities of the concerned parties. Since a contract/agreement made by the parties cannot violate the law of the land, it is necessary that surrogacy be given recognition and governed by a special statute to protect the parties concerned.

The legality of a surrogacy transaction can be challenged on two grounds:

1)      Surrogacy transaction being against public policy

2)      Surrogacy transaction involving human being as a subject-matter of the contract.

 

• What is ‘public policy’?

It is worthwhile to understand the meaning of ‘public policy’ so as to find out an answer to the question of; whether surrogacy agreement is against public policy and whether it can be, as such, subject to the prohibition of public policy clause as given in Section 23 of Indian Contract Act, 1872.

The “public policy” is defined in The Major Law Lexicon^[59] as:

“the policy of the law; the policy in relation to the administration of the law and practically synonymous with public good or public welfare.”

The Words and Phrases Legally Defined^[60] defines public policy to mean:

“the ideas which for the time being prevail in a community as to the conditions necessary to ensure its welfare; so that anything is treated as against public policy if it is generally regarded as injurious to the public interest… public policy is not, however, fixed and stable.”

 In the case of Murlidhar Agarwal v. State of U.P.^[61] the Court tried to explore the concept of public policy by saying:

“Public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time.”

Moreover, in the case of Indian Financial Association of Seventh Day Adventures v. M.A. Unneerikutty^[62] it was further explained in the following words:

“the term ‘public policy’ has an entirely different and more extensive meaning from the policy of the law. It is the principle of judicial legislation or interpretation founded on the current needs of the community. It does not remain static in any given community and varies from generation to generation.”

After reading the observations made by the Court in above cases and by referring to the explanations given by authoritative dictionaries mentioned above, one may come to the following conclusion with respect to public policy:

1. Public Policy is a relative term and it depends in which context or society or country it is being used.
2. Public policy is to be judged considering the need of the case and there can be no common parameter defining the same
3. It is for the judges to decide as to what amounts to public policy in a given case.
4. This concept cannot be static and changes with the pace of time and demand of the society.

In this connection, a surrogacy contract is understood to be against public policy, by the legal fraternity.^[63] Several discussions and debates are being organized to discuss, deliberate and ponder upon this new kind of reproductive technique, and its legality so as to spread awareness about surrogacy and its benefits for those who are infertile, and also to those whose livelihood is dependent upon it. But after considering above mentioned information/observations, one may conclude that a surrogacy contract may not go against the doctrine of public policy. In fact, a surrogacy mechanism is now, the need of the hour.^[64]

III.     DRAFT OF SURROGACY CONTRACT: LAW & PRACTICE

As discussed above, the position of law seems to be uncertain.  There is no clarity as to whether surrogacy transactions can be termed as a contract or not. This is because of the fact that the judiciary in India especially the Supreme Court has accepted the concept of surrogacy to be legal by giving due regard to the surrogacy agreements or transactions which are being carried out throughout the country. As a principle of law,^[65] courts cannot turn a blind eye towards the factual realities of the society including some of the popular trends.^[66] Surrogacy, being a factual reality, has in this manner, received legal recognition by the judiciary.

Moreover, Section 2 (cc) of the Draft Assisted Reproductive Technologies Bill, 2010, which is being branded as the ‘Code of Surrogacy’, contains a definition of a ‘surrogacy agreement’ which means:

“a contract between the person (s) availing of assisted reproductive technology and the surrogate mother.”

Envisaging surrogacy contract (the purpose/object of which) as legal contract, the next difficulty comes is as to its draft. Some issues like what contents are to be incorporated, what terms and conditions can be drafted, on what points can there be a common agreement of parties, what steps and what compliances are to be taken of, what will be the format of such a draft, who can be a part of the contract of surrogacy, what kind of breach may occur in case of the surrogacy contract and all other necessary things are required to be kept in mind while drafting a surrogacy contract.

It is to be drafted with great care and caution, since there are several factors surrounding surrogacy, which are extremely sensitive, such as:

1. The subject matter of the contract is a human being;
2. The object of the contract is to conceive pregnancy by artificial ways of reproduction which was not yet known the society at large;
3. There is a compensation or monetary consideration to be given to surrogate mother/gestational mother;
4. Several ethical considerations surrounding surrogacy transaction;
5. The identity and privacy of the surrogate mother;
6. The rights of the parties before, during and after the contract including that of the would be surrogate child;
7. Risk attached to the life/body of the surrogate mother;
8. Clause with respect to the legal status of the child.

It is worthwhile to note that surrogacy transactions are being followed despite not having legal recognition. Agreements are being made, entered into, being followed and are being executed with the support of all those involved in the surrogacy transaction. There are institutions, organizations or companies, which are offering surrogacy services by ensuring and providing comprehensive surrogacy services including that of:

1. Legal compliances;
2. Media services and medical operations involved therein;
3. Commercial, taxation and related aspects;
4. Selection of or databases of Surrogate mothers willing to go for surrogacy services.

It is also worthwhile to note here that some of the law firms in India have also started their area of practice providing surrogacy services or ensuring legal compliances with respect to surrogacy transaction. Surrogacy agreements are being drafted as a matter of legal service from some of the reputed law firms in India.^[67]

• Law Commission of India on ‘Surrogacy contract’:

The Law Commission of India,^[68] in its report, had made the following key recommendations with respect to a surrogacy contract/surrogacy transaction:-

• 1) Surrogacy arrangements should continue to be governed by contract amongst parties, but should not be for commercial purposes.
• 2) Surrogacy arrangements should provide for financial support for the surrogate child in the event of death, divorce or unwillingness of the commissioning couple/individual.
• 3) Surrogacy contract should take care of Life Insurance Cover for the surrogate mother.
• 4) One the intended parents must be a donor in a surrogacy arrangement.
• 5) Legislation should recognize a surrogate child as the legitimate child of the commissioning parent(s).
• 6) The birth certificate of the surrogate child should contain the name(s) of the Commissioning parent(s) only.
• 7) Right of privacy of donor as well as surrogate mother should be protected.
• 8) Sex-selective surrogacy should be prohibited.
• 9) Cases of abortions should be governed by the Medical Termination of Pregnancy Act, 1971, only.
• Steps to be followed in case of ‘Surrogacy contract’:

A surrogacy contract, usually involves following steps in order to complete the transaction:

1)      Selection of surrogate mother or an offer for surrogacy;

2)      Acceptance of the same by the surrogate mother;

3)      A Covenant or an undertaking as to consideration^[69] as required by law;

4)      Completion of medical operations involved in the surrogacy;

5)      Conceiving and carrying out term of nine months;

6)      Delivery of the baby;

7)      Handing over the custody of the child;

8)      Relinquishing^[70] all the rights over the child by surrogacy.

Assuming that a surrogacy contract is legal, if any of the parties to the surrogacy contract fails to perform any of the above mentioned steps, then as per the provisions of the Indian Contract Act, 1872, an action for breach of contract can be initiated. At the same time, if we were to say a surrogacy agreement can never be legal or are invalid, then despite executing a contract, parties can no longer enforce the same through the courts of law. The problem pertaining to a surrogacy agreement or a surrogacy transaction occurs when any dispute arises, either because of a clash of interests, or non-performance of any conditions or the terms of the contract. When such a dispute is brought before the court, it may not enforce the surrogacy agreement despite the fact it is between consenting parties due to the illegal nature of such a contract.

 It is difficult to decide whether society is ready to accept the artificial process of procreation of a child and that too with the help of a surrogate since there are a number of ethical issues involved therein, but fact of the matter is that a number of surrogacy transaction are being carried out in India right now, voluntarily or out of need of the parties.

1. CONCLUSIONS AND SUGGESTIONS:

It is the cardinal principle of law that the ‘law cannot be remain static’ and there is always a legitimate expectation from the State that the laws must be changed whenever there is ongoing demand from the society or stakeholders or the ones whose interest is at stake either in recognition or non-recognition of something. The case of surrogacy is not different from such a scenario. After having discussed surrogacy in its entirety, it is evident that a surrogacy process is the need of the hour, especially for those who, owing to their physical incapability are unable to procreate a child of their own. No doubt, the process of adoption is recognized in the legal system of India but it has its own limitations. Moreover, human beings cannot hide the natural desire of having their own child. The right to have reproductive choices has been upheld as part of fundamental right under Article 21 of Indian Constitution. From the perspective of the surrogate mother, though the participation of the surrogate mother is criticized severely, as being against public policy, surrogacy can be the best mechanism through which in a country like India, people can meet their daily needs and livelihood. Hence, it is for the state to take some steps in furtherance of realization of this right to have reproductive choices and the right to access to resources of livelihood, by recognizing surrogacy transaction.

Talking about contractual perspective of surrogacy transaction, herewith we would like to recommend that it has to be interpreted in the light of the provisions of Indian Contract Act, 1872. Just because surrogacy contract involves a human being as a subject matter of contract, it must not be held to be as invalid. It is the need of the hour and the demand of the society. There is nothing in the Indian Contract Act, 1872 which can specifically prohibit surrogacy transaction. The term ‘public policy’ as given in Section 23 of Indian Contract Act, 1872, may not be applicable to the surrogacy because of two reasons:

1. Public policy is not defined anywhere specifically and is a relative term.
2. Surrogacy, being need of the hour and demand of the society, is hard to define and hence, it is uncertain if the prohibition of public policy also encompasses a surrogacy transaction.

With this strive, we would like to also leave a word of caution that under the garb of absence of any specific prohibition for surrogacy contract, surrogacy transactions are being made  detrimental to the interests of the surrogate mother and also at times to the detriment of the interests and overall wellbeing of a surrogate child. So, it is necessary for the law making body to also keep in mind the rights of a surrogate mother/gestational mother and that of the surrogate child, apart from providing legal recognition to the surrogacy agreement.

Though there are several legal hurdles attached with the surrogacy transaction and very complex area of law to be dealt with, it’s a good opportunity for the couples to fulfill their desire through legitimate ways, and public policy is in favor of providing recognition to surrogacy by removing hurdles that are cropping up in this branch of law. It is only for the Legislature to take some positive steps by removing legal barriers surrounding surrogacy since every time it will be difficult for the judiciary to deal with the surrogacy in the event of absence of specific laws, owing their judicial restraints.

^[1] J. Arijit Pasayat in Baby Manji Yamada v. Union of India, AIR 2009 SC 84 [hereinafter Baby Manji].

^[2] In Re Baby M, 1988 N.J.77 A.L.R.4th 1.

^[3] Smita Chandra, Surrogacy & India, (Jan. 18, 2013), http://ssrn.com/abstract=1762401.

^[4] Jyoti Bhakare, Surrogacy- A Reality Eclipsed by Ethical, Social, Legal Issues-Indian Perspectives, 2 INDIAN JOURNAL OF LAW & JUSTICE 80 (2011) [hereinafter Surrogacy-A Reality Eclipsed by Ethical, Social, Legal Issues-Indian Perspective].

^[5] Indian Council Med. Res. National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, (Dec. 3, 2013), http://icmr.nic.in/art/art_clinics.htm. [hereinafter National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India]

^[6] Baby Manji, supra note 1.

^[7] Jan Balaz vs. Anand Municipality, AIR 2010 Guj 21 at ¶ 14. [hereinafter Jan Balaz]

^[8] The Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption, May 29, 1993, 32 1.L.M. 1134.

^[9] P. Rathinam v. Union of India, (1994) 3 SCC 394.

^[10] Id.

^[11] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; C.E.R.C. v. Union of India, AIR 1995 SC 922; Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1; Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.

^[12] B.K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 AP 156. [hereinafter B.K. Parthasarthi]

^[13] R. Rajgopal v. State of Tamil Nadu, (1994) 6 SCC 632.

^[14] B.K. Parthasarthi, supra note 12.

^[15] Javed v. State of Haryana, (2003) 8 SCC 369.

^[16] Law Commission of India, 228^th Report on Legislation to Regulated Assisted Reproductive Technology Clinics as well As Rights and Obligations of Parties to a Surrogacy, (Aug, 2009), http://lawcommissionofindia.nic.in/reports/report228.pdf at ¶ 1.9. [hereinafter 228^th Report of the Law Commission of India]

^[17] Find Out the Reasons for Needing a Surrogate Mother, (Aug. 28, 2014), http://children-laws.laws.com/surrogacy/surrogacy-mother/reasons-for-needing-one.

^[18] Amana Fontanella Khan, India, the Rent-a-Womb Capital of the World, (Aug. 23, 2010), http://www.slate.com/articles/double_x/doublex/2010/08/india_the_rentawomb_capital_of_the_world.html.

^[19] Jean M. Sera, Surrogacy and Prostitution: A comparative analysis,

http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1241&context=jgspl  (last updated May 27, 2015).

^[20] Niyati Rana, Surrogate Moms give Livelihood to Women, (Oct. 22, 2013), http://www.dnaindia.com/india/report-surrogate-moms-give-livelihood-to-women-1906929.

 Id.

^[22] Jan Balaz, supra note 7.

^[23] Indian Contract Act, 1872, Section 23. [hereinafter Indian Contract Act]

^[24] Mahendra P. Singh, Constitutionalization and Realization of Human Rights in India, in HUMAN RIGHTS, JUSTICE & CONSTITUTIONAL EMPOWERMENT 36 (C. R. Kumar & K. Chockalingam eds., 2007)

^[25] B.K. Parthasarthi, supra  note 12.

^[26] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

^[27] Id.

^[28] State of H.P. v. Umed Ram, AIR 1986 SC 847.

^[29] Baby Manji, supra note 1.

^[30] National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, supra note 5.

^[31] Jan Balaz, supra note 7.

^[32] Baby Manji, supra note 1.

^[33] Universal Declaration of Human Rights, art. 16, Dec. 10, 1948. G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III).

^[34] Section 1(1) No. 7 German Embryo Protection Act and § 14b Adoption Placement Act

^[35] Richard Vaughn, Children Born Abroad via Surrogacy Entitled to Legal Parents, German Court Rules (December 23rd, 2014), http://www.iflg.net/children-born-abroad-via-surrogacy-entitled-to-legal-parents-german-court-rules/

^[36] Deutsche Welle (DW-International Broadcaster), Limited win for surrogacy, gay parenthood in Germany (December 19, 2014),  http://www.dw.de/limited-win-for-surrogacy-gay-parenthood-in-germany/a-18142883

^[37] Ukrainian Family Law Group, The ABC’s of Ukranaian Family Law,( 2012) http://www.familylaw.com.ua/images/Family%20Law%20Group%20Brochure.pdf (last updated on May 27, 2015).

^[38] Legislation.gov.uk http://www.legislation.gov.uk/ukpga/1985/49 (last updated on May 27, 2015)

^[39] Margaret Ryznar, International Commercial Surrogacy and its parties, THE JOHN MARSHAL LAW REVIEW, Available at: http://ssrn.com/abstract=1614462

^[40]National Conference of Commissioners on Uniform State Laws, Uniform Parentage Act, (Feb. 10, 2003), www.okdhs.org/NR/rdonlyres/68D8ACFD-3A37-4AA7-832F-962DE13A7D31/0/UniformParentageAct_css_10212013.pdf.

^[41] Eisenstadt v. Baird, 40 5 U.S. 438, 453-54 (1979).

^[42] Johnson v. Calvert, 5 Cal. 484 (May 20, 1993).

^[43] The Law Handbook, http://www.lawhandbook.org.au/fact_sheets/ch38.php .

^[44] Id.

^[45] As India emerges as a hub of surrogacy, surrogate mothers are underpaid and uncared for, (July 17, 2013) http://www.dnaindia.com/india/report-as-india-emerges-as-a-hub-for-surrogacy-surrogate-mothers-are-underpaid-and-uncared-for-1862252.

^[46] Surrogacy-A Reality Eclipsed by Ethical, Social, Legal Issues-Indian Perspective, supra note 4.

^[47] Id.

^[48] N.Y. Legislators Call for Legalised Surrogacy Contracts, (Feb. 21, 2014),  http://go.nationalpartnership.org/site/News2?page=NewsArticle&id=43695&news_iv_ctrl=0&abbr=daily2.

^[49] Baby Manji, supra note 1.

^[50] Those set of contracts the purpose of which can be anything but must be legal, e.g. Contract to supply goods.

^[51] There are certain contracts the subject matter or purpose of which is special and different from usual contracts, for e.g. Contract of Indemnity.

^[52] Mostly such contracts are extended forms of general forms contract where it is compulsory for a particular transaction to be preceded by a usual contract, for e.g. Transfer of Property.

^[53] Jan Balaz, supra note 7.

^[54] Lakshmi Ajay, Gujarat, a hub of rent-a-womb industry in India, Indian Express, (Feb. 13, 2014),  http://indianexpress.com/article/india/india-others/gujarat-a-hub-of-rent-a-womb-industry-in-india/.

^[55] Though the expression ‘object’ is not defined in the Indian Contract Act, 1872, it has held to mean a ‘purpose’ or ‘design’ of the contract. If the object is opposed to public policy or tends to defeat any provisions of law, it becomes unlawful and thereby it is void under Section 23 of the Act: Nutan Kumar v.. IInd Additional District Judge, AIR 1994 All 298.

^[56]  Indian Contract Act, 1872, supra note 23, at Section 10.

^[57] Indian Contract Act, 1872, supra note 23, at Section 23.

^[58]Indian Contract Act, 1872, supra note 23, at Section 2(h).

^[59]  P. Ramanatha Aiyar, The Major Law Lexicon 5526 (4^th ed., 2010).

^[60] David Hay, Words and Phrases Legally Defined 694 (Vol. 2, 4^th ed., 2005).

^[61] Murlidhar Agarwal v. State of U.P., AIR 1974 S.C. 1924.

^[62] Indian Financial Association of Seventh Day Adventures v. M.A. Unneerikutty, (2006) 6 SCC 351.

^[63] Robert D. Arenstein, Is Surrogacy Against Public Policy? The Answer is yes, 18 Seton Hall Law Review (1988), http://heinonline.org/HOL/Page?handle=hein.journals/shlr18&div=43&g_sent=1&collection=journals#853.

^[64] 228^th Report of the Law Commission of India, supra note 16.

^[65] Jurisprudential principle of Sociological School of law.

^[66] Nimerta Chawla, How celebrities are leading the way by helping turn surrogacy into a popular trend, Daily Mail, (July 6, 2013), http://www.dailymail.co.uk/indiahome/indianews/article-2357646/IVF-frontrunners-As-surrogacy-takes-popular-turn-heres-celebrity-cases-bringing-limelight.html.

^[67] Fatima Ansari, Surrogacy: An Emerging Area of Law, 46 Legal Era (2014).

^[68] 228^th Report of the Law Commission of India, supra note 16.

^[69] It could be in the form of medical compensation or in the form of reward or remuneration for her surrogacy services.

^[70] By virtue of a contract or a covenant in the contract it be done or agreed upon.

Author: Prof. Ashok Wadje, Assistant Professor at National Law University, Jodhpur.

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