Commoditization and Commoditization and Commercial Commercial

Surrogacy-Challenges Surrogacy-Challenges and Dilemmaand Dilemma

Presented Presented

by:by:Gargi Jha, 542Gargi Jha, 542

Iswarya Balakrishnan, 545Iswarya Balakrishnan, 545Kunal Chandra Agrawal, 571Kunal Chandra Agrawal, 571

Satyam Thareja, 574 Satyam Thareja, 574

IntroductionIntroduction Origin from Latin word “Origin from Latin word “subrogare” subrogare” meaning “appointed to act meaning “appointed to act

in the place of”.in the place of”.

Problem of Infertility & one of the easily available solutions to Problem of Infertility & one of the easily available solutions to this being conceiving through surrogate mother.this being conceiving through surrogate mother.

Woman agrees to become pregnant for the purpose of gestating Woman agrees to become pregnant for the purpose of gestating & giving birth to a child she will not raise but hand over to a & giving birth to a child she will not raise but hand over to a contracted party.contracted party.

Ovum & Sperm: can be from the couple desiring the baby/ can Ovum & Sperm: can be from the couple desiring the baby/ can be from third party donor.be from third party donor.

Process criticized on moral grounds: (a) leads to commodization Process criticized on moral grounds: (a) leads to commodization of child; (b) breaks the bond between the mother and the child; of child; (b) breaks the bond between the mother and the child; (c) interferes with nature; (d) leads to exploitation of poor (c) interferes with nature; (d) leads to exploitation of poor women in underdeveloped countries who sell their bodies for women in underdeveloped countries who sell their bodies for money.money.

Contd/-Contd/- Surrogacy contracts may be often Surrogacy contracts may be often

breached due to: (a) fear, (b) anxiety & breached due to: (a) fear, (b) anxiety & (c) economic conditions.(c) economic conditions.

Does specific performance of the contract Does specific performance of the contract lie as a remedy with the infertile couple, lie as a remedy with the infertile couple, who have spent their hard-earned money who have spent their hard-earned money and vested hope in the surrogate mother?and vested hope in the surrogate mother?

Possibility of breach of contract by the Possibility of breach of contract by the infertile couple, leaving the surrogate infertile couple, leaving the surrogate mother with a child, when she hadn’t mother with a child, when she hadn’t planned on one. Remedy?planned on one. Remedy?

Status of Surrogacy Status of Surrogacy Contracts abroadContracts abroad

Article 16.1 of UDHR, 1948: Article 16.1 of UDHR, 1948: “Men and women of full age “Men and women of full age without any limitation due to race, nationality or religion without any limitation due to race, nationality or religion have the right to marry and found a family.” have the right to marry and found a family.”

England: Surrogacy Arrangements Act, 1985- Surrogacy England: Surrogacy Arrangements Act, 1985- Surrogacy arrangements legal but prohibits advertising & other arrangements legal but prohibits advertising & other aspects of commercial surrogacy.aspects of commercial surrogacy.

US: Commercial Surrogacy prohibited in many states. US: Commercial Surrogacy prohibited in many states.

Baby M Case Baby M Case of 1988 in US- New Jersey Supreme Court of 1988 in US- New Jersey Supreme Court allowed custody to commissioning parents in the allowed custody to commissioning parents in the “best “best interest of the childinterest of the child,” & came to the conclusion that ,” & came to the conclusion that surrogacy contract is against public policy. surrogacy contract is against public policy.

Contd/-Contd/- Australia: Commercial surrogacy illegal, Australia: Commercial surrogacy illegal,

contracts in relation to surrogacy contracts in relation to surrogacy arrangement unenforceable & any arrangement unenforceable & any payment for soliciting a surrogacy payment for soliciting a surrogacy arrangement illegal.arrangement illegal.

Kirkman sisters’ case Kirkman sisters’ case in Victoria in 1988, in Victoria in 1988, Australia: sparked much community & Australia: sparked much community & legal debate. Australian States attempted legal debate. Australian States attempted to settle legal complications in surrogacy.to settle legal complications in surrogacy.

Issue of MotherhoodIssue of Motherhood US case of US case of Jaycee BJaycee B v v Superior Court-Superior Court- showed how surrogacy can lead to array showed how surrogacy can lead to array

of legal complexities regarding motherhood.of legal complexities regarding motherhood.

In this case a child born to a surrogate mother using sperm and eggs from In this case a child born to a surrogate mother using sperm and eggs from anonymous donors because the infertile couple was unable to create their own anonymous donors because the infertile couple was unable to create their own embryo using the in vitro fertilization techniquesembryo using the in vitro fertilization techniques..

The couple chose to use anonymous donors rather than asking the surrogate The couple chose to use anonymous donors rather than asking the surrogate to use her own eggs because of the to use her own eggs because of the Baby M case Baby M case in New Jersey in which the in New Jersey in which the surrogate had eventually refused to hand over the baby saying that she was surrogate had eventually refused to hand over the baby saying that she was its biological mother and her right to raise the child pre-empted the its biological mother and her right to raise the child pre-empted the commissioning parents.’ commissioning parents.’

The child thus had five people who could lay claim to parenthood – a genetic The child thus had five people who could lay claim to parenthood – a genetic mother, a commissioning mother, a surrogate mother, a genetic father and a mother, a commissioning mother, a surrogate mother, a genetic father and a commissioning father. commissioning father.

One month prior to the birth of the baby Jaycee the intended parents John and One month prior to the birth of the baby Jaycee the intended parents John and Luanne separated and John sought to rescind his obligations under the Luanne separated and John sought to rescind his obligations under the surrogacy contract so as to avoid having to pay child support for Jaycee.surrogacy contract so as to avoid having to pay child support for Jaycee.

A Californian court granted temporary custody of the baby Jaycee to Luanne A Californian court granted temporary custody of the baby Jaycee to Luanne and ordered John to pay for child-support. and ordered John to pay for child-support.

Contd/-Contd/-

UK: UK: Surrogate mother is the legal mother- section 27(1) of Surrogate mother is the legal mother- section 27(1) of the Human Fertilisation and Embryology Act, 1990.the Human Fertilisation and Embryology Act, 1990.

Section 30 of the said Act: If the surrogate mother Section 30 of the said Act: If the surrogate mother consents to the child to be treated as the child of the consents to the child to be treated as the child of the commissioning parents the court may make a parental commissioning parents the court may make a parental order to that effect.order to that effect.

It prohibits giving or taking of money or other benefit It prohibits giving or taking of money or other benefit (other than expenses reasonably incurred) in consideration (other than expenses reasonably incurred) in consideration of the making of the order or handing over of the child.of the making of the order or handing over of the child.

US (Gestational Surrogacy Act, 2004) & India: US (Gestational Surrogacy Act, 2004) & India: surrogate surrogate mother not considered to be the legal mother.mother not considered to be the legal mother.

In most Western countries, commercial surrogacy is either In most Western countries, commercial surrogacy is either banned or sharply regulated. banned or sharply regulated.

Status in IndiaStatus in India No legislation to regulate the practice of No legislation to regulate the practice of

surrogacy .surrogacy .

Guidelines on the issue- Guidelines on the issue- National National Guidelines for Accreditation Supervision & Guidelines for Accreditation Supervision & Regulation of ART Clinics in India, 2005; Regulation of ART Clinics in India, 2005; Ethical Guidelines for Biomedical Research Ethical Guidelines for Biomedical Research on Human Participants, 2006on Human Participants, 2006

Bill pending: Assisted Reproductive Bill pending: Assisted Reproductive Technologies (Regulation) Bill, 2010Technologies (Regulation) Bill, 2010

National Guidelines for Accreditation National Guidelines for Accreditation Supervision & Regulation of ART Clinics in Supervision & Regulation of ART Clinics in

India, 2005India, 2005 Issued by Ministry of Health and Family Welfare, Issued by Ministry of Health and Family Welfare,

in collaboration with the Indian Council for in collaboration with the Indian Council for Medical Research (ICMR), the National Academy Medical Research (ICMR), the National Academy of Medical Sciences (NAMS), New Delhi.of Medical Sciences (NAMS), New Delhi.

To provide guidelines to clinics practicing Artificial To provide guidelines to clinics practicing Artificial Reproductive Techniques (ART).Reproductive Techniques (ART).

Throw some light on the procedure to be adopted Throw some light on the procedure to be adopted in the practice of surrogacy.in the practice of surrogacy.

Do not have the force of law.Do not have the force of law.

Important principles in the Important principles in the GuidelinesGuidelines

Surrogacy by assisted conception should normally be considered only Surrogacy by assisted conception should normally be considered only for patients for whom it would be physically or medically for patients for whom it would be physically or medically impossible/undesirable to carry a baby to term. impossible/undesirable to carry a baby to term.

Advertisements regarding surrogacy should not be made by the ART Advertisements regarding surrogacy should not be made by the ART clinic. Responsibility of finding a surrogate mother should rest with clinic. Responsibility of finding a surrogate mother should rest with the couple, or a semen bank.the couple, or a semen bank.

A surrogate mother should not be over 45 years of age & A surrogate mother should not be over 45 years of age & ART clinic ART clinic must ensure (and put on record) that the woman satisfies all the must ensure (and put on record) that the woman satisfies all the testable criteria to go through a successful full-term pregnancy.testable criteria to go through a successful full-term pregnancy.

A relative, a known person or a person unknown to the couple may A relative, a known person or a person unknown to the couple may act as a surrogate mother for the couple & in the case of a relative act as a surrogate mother for the couple & in the case of a relative acting as a surrogate, the relative should belong to the same acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate. generation as the women desiring the surrogate.

A prospective surrogate mother must be tested for HIV and shown to A prospective surrogate mother must be tested for HIV and shown to be seronegative for this virus just before embryo transfer. be seronegative for this virus just before embryo transfer.

Contd/-Contd/- The prospective surrogate mother must also declare that she The prospective surrogate mother must also declare that she

will not use drugs intravenously, and not undergo blood will not use drugs intravenously, and not undergo blood transfusion excepting of blood obtained through a certified transfusion excepting of blood obtained through a certified blood bank.blood bank.

No woman may act as a surrogate more then thrice in her No woman may act as a surrogate more then thrice in her lifetime.lifetime.

A surrogate mother carrying a child biologically unrelated to A surrogate mother carrying a child biologically unrelated to her must register as a patient in her own name. her must register as a patient in her own name.

The birth certificate issued to a child born to a surrogate The birth certificate issued to a child born to a surrogate mother should be in the name of the genetic parents and not mother should be in the name of the genetic parents and not in the name of the surrogate mother. in the name of the surrogate mother.

Payments to surrogate mothers should cover all genuine Payments to surrogate mothers should cover all genuine expenses associated with the pregnancy. All the expenses of expenses associated with the pregnancy. All the expenses of the surrogate mother during the period of pregnancy and the surrogate mother during the period of pregnancy and post-natal care relating to pregnancy should be borne by the post-natal care relating to pregnancy should be borne by the couple seeking surrogacy.couple seeking surrogacy.

Contd/-Contd/- Surrogate mother would also be entitled to a monetary Surrogate mother would also be entitled to a monetary

compensation from the couple for agreeing to act as a compensation from the couple for agreeing to act as a surrogate.surrogate.

ART clinic must not be a party to any commercial element in ART clinic must not be a party to any commercial element in donor programmes or in gestational surrogacy.donor programmes or in gestational surrogacy.

An oocyte donor cannot act as a surrogate mother for the couple An oocyte donor cannot act as a surrogate mother for the couple to whom the oocyte is being donated.to whom the oocyte is being donated.

A third-party donor and a surrogate mother must relinquish in A third-party donor and a surrogate mother must relinquish in writing all parental rights concerning the offspring.writing all parental rights concerning the offspring.

A child born through surrogacy must be adopted by the genetic A child born through surrogacy must be adopted by the genetic (biological) parents unless they can establish through genetic (biological) parents unless they can establish through genetic (DNA) fingerprinting (of which the records will be maintained in (DNA) fingerprinting (of which the records will be maintained in the clinic) that the child is not theirs.the clinic) that the child is not theirs.

A child born through ART shall be presumed to be the legitimate A child born through ART shall be presumed to be the legitimate child of the couple, born within wedlock, with consent of both child of the couple, born within wedlock, with consent of both the spouses, and with all the attendant rights of parentage, the spouses, and with all the attendant rights of parentage, support and inheritance. support and inheritance.

Contd/-Contd/- Children born through the use of donor gametes shall not Children born through the use of donor gametes shall not

have any right whatsoever to know the identity (such as have any right whatsoever to know the identity (such as name, address, parentage, etc.) of their genetic parent(s). name, address, parentage, etc.) of their genetic parent(s).

ART used for married woman with the consent of the husband ART used for married woman with the consent of the husband does not amount to adultery on part of the wife or the donor. does not amount to adultery on part of the wife or the donor. However without the husband’s consent it can be a ground for However without the husband’s consent it can be a ground for divorce or judicial separation.divorce or judicial separation.

Conception of the wife through AIH (Artificial InseminationConception of the wife through AIH (Artificial Insemination with husband sperm) does not necessarily amount to with husband sperm) does not necessarily amount to consummation of marriage & a decree of nullity may still be consummation of marriage & a decree of nullity may still be granted in favour of the wife on the ground of impotency of granted in favour of the wife on the ground of impotency of the husband or his wilful refusal to consummate the marriage. the husband or his wilful refusal to consummate the marriage.

The Indian Evidence Act, 1872, says that a child born within The Indian Evidence Act, 1872, says that a child born within 280 days after dissolution of marriage (by death or divorce) is 280 days after dissolution of marriage (by death or divorce) is a legitimate child since that is considered to be the gestation a legitimate child since that is considered to be the gestation period, period, But a child born to a woman artificially inseminated But a child born to a woman artificially inseminated with the stored sperms of her deceased husband must be with the stored sperms of her deceased husband must be considered to be a legitimate child notwithstanding the considered to be a legitimate child notwithstanding the existing law of presumptions under our Evidence Act.existing law of presumptions under our Evidence Act.

Ethical Guidelines for Biomedical Ethical Guidelines for Biomedical Research on Human Participants, 2006Research on Human Participants, 2006

Similar to the ART clinic Guidelines in certain aspects but Similar to the ART clinic Guidelines in certain aspects but with a few additional points.with a few additional points.

Surrogacy should be resorted to only when it is coupled Surrogacy should be resorted to only when it is coupled with authorized adoption wherever applicable.with authorized adoption wherever applicable.

The intending parents should have a preferential right to The intending parents should have a preferential right to adopt the child subject to six week’s postpartum delay for adopt the child subject to six week’s postpartum delay for necessary maternal consent.necessary maternal consent.

Their claim for the custody of the child in its best interest Their claim for the custody of the child in its best interest

through adoption would be, to establish that the child is through adoption would be, to establish that the child is theirs through genetic (DNA) fingerprinting, of which the theirs through genetic (DNA) fingerprinting, of which the records will be maintained in the clinic.records will be maintained in the clinic.

Surrogacy should be resorted to only if medically certified Surrogacy should be resorted to only if medically certified as the only solution to infertility or any other medical bar as the only solution to infertility or any other medical bar on pregnancy by the intending mother.on pregnancy by the intending mother.

Contd/-Contd/- Abortion under the Abortion Law on the medical Abortion under the Abortion Law on the medical

ground should be inviolate right of the surrogate ground should be inviolate right of the surrogate and the genetic parents have no claim over the and the genetic parents have no claim over the amounts already paid.amounts already paid.

The contract for surrogacy should be legally The contract for surrogacy should be legally enforceable. It should provide for all expenses enforceable. It should provide for all expenses related to medical management during pregnancy, related to medical management during pregnancy, delivery, and immediate postpartum period till delivery, and immediate postpartum period till adoption and should be borne by the intending adoption and should be borne by the intending couple. couple.

Monetary compensation for agreeing to be the Monetary compensation for agreeing to be the surrogate may also be specified in the agreement.surrogate may also be specified in the agreement.

The child shall have a legal right to parental support, The child shall have a legal right to parental support, inheritance, and all other privileges of a child born inheritance, and all other privileges of a child born to a couple through sexual intercourse.to a couple through sexual intercourse.

Assisted Reproductive Technologies Assisted Reproductive Technologies (Regulation) Bill, 2010(Regulation) Bill, 2010

In 2010 the Assisted Reproductive In 2010 the Assisted Reproductive Technologies (Regulation) Bill Technologies (Regulation) Bill released because of the lapse of the released because of the lapse of the 2008 Bill. 2008 Bill.

Bill drafted by a 12-member Bill drafted by a 12-member committee comprised primarily of committee comprised primarily of medical experts from ICMR and the medical experts from ICMR and the Ministry of Health. Ministry of Health.

Major ProvisionsMajor Provisions The commissioning parties and the surrogate mother must The commissioning parties and the surrogate mother must

enter into a surrogacy agreement which will be legally enter into a surrogacy agreement which will be legally enforceable to ensure that surrogacy agreements are treated enforceable to ensure that surrogacy agreements are treated on par with other contracts and the principles of the Indian on par with other contracts and the principles of the Indian Contract Act, 1872 and other laws applicable to these kinds Contract Act, 1872 and other laws applicable to these kinds of agreements.of agreements.

Single persons may also go for surrogacy arrangements.Single persons may also go for surrogacy arrangements.

Child born will have all the rights just like a child born out of Child born will have all the rights just like a child born out of sexual intercourse has.sexual intercourse has.

Couple seeking surrogacy must bear all expenses, including Couple seeking surrogacy must bear all expenses, including the insurance expenses, if any, incurred during pregnancy the insurance expenses, if any, incurred during pregnancy and the delivery of the child. and the delivery of the child.

Surrogate mother may also receive monetary compensation Surrogate mother may also receive monetary compensation for agreeing to act as a surrogate. for agreeing to act as a surrogate.

Surrogate must relinquish all parental rights over the child.Surrogate must relinquish all parental rights over the child.

Contd/-Contd/- Woman serving as a surrogate must be between Woman serving as a surrogate must be between

the the ages of 20 and 35ages of 20 and 35 and may not serve as a and may not serve as a surrogate for more than five live births.surrogate for more than five live births.

Commissioning parties must approach registered Commissioning parties must approach registered semen banks or advertise to arrange surrogate semen banks or advertise to arrange surrogate mothers; clinics are allowed to arrange surrogates. mothers; clinics are allowed to arrange surrogates.

Birth certificate for the child will bear the names of Birth certificate for the child will bear the names of the child's genetic parents/parent and not the the child's genetic parents/parent and not the surrogate.surrogate.

Surrogate mother shall be given a certificate by Surrogate mother shall be given a certificate by the person or persons who have availed of her the person or persons who have availed of her services, stating unambiguously that she has services, stating unambiguously that she has acted as a surrogate for them.acted as a surrogate for them.

Contd/-Contd/- Commissioning parties legally bound to accept the child Commissioning parties legally bound to accept the child

regardless of any abnormality the child may have & the regardless of any abnormality the child may have & the refusal to do so constitutes an offence. refusal to do so constitutes an offence.

A foreigner or foreign couple not resident in India, or a non-A foreigner or foreign couple not resident in India, or a non-resident Indian individual or couple, seeking surrogacy in India resident Indian individual or couple, seeking surrogacy in India shall appoint a local guardian who will be legally responsible shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after the for taking care of the surrogate during and after the pregnancy, till the child is delivered to the foreigner or foreign pregnancy, till the child is delivered to the foreigner or foreign couple or the local guardian. couple or the local guardian.

The foreign party seeking the surrogacy must ensure and The foreign party seeking the surrogacy must ensure and establish to the assisted reproductive technology clinic establish to the assisted reproductive technology clinic through proper documentation clearly and unambiguously through proper documentation clearly and unambiguously stating that the country permits surrogacy and the child born stating that the country permits surrogacy and the child born through surrogacy in India, will be permitted entry in the through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple.Country as a biological child of the commissioning couple.

If the foreign party seeking surrogacy fails to take delivery of If the foreign party seeking surrogacy fails to take delivery of the child born to the surrogate mother commissioned by the the child born to the surrogate mother commissioned by the foreign party, the local guardian shall be legally obliged to foreign party, the local guardian shall be legally obliged to take delivery of the child and be free to hand the child over to take delivery of the child and be free to hand the child over to an adoption agency, if the commissioned party or their legal an adoption agency, if the commissioned party or their legal representative fails to claim the child within one months of representative fails to claim the child within one months of the birth of the child.the birth of the child.

Contd/-Contd/- Child born of surrogacy is considered the legitimate child of the Child born of surrogacy is considered the legitimate child of the

commissioning parties, even if the commissioning couple commissioning parties, even if the commissioning couple separates or gets divorced after going for surrogacy but before separates or gets divorced after going for surrogacy but before the child is born.the child is born.

A couple or an individual shall not have the service of more than A couple or an individual shall not have the service of more than one surrogate at any given time.one surrogate at any given time.

Child born of surrogacy would have the right to obtain non-Child born of surrogacy would have the right to obtain non-identifying information about the surrogate upon attaining the identifying information about the surrogate upon attaining the age of 18.age of 18.

Legal guardian of a minor child may apply for any information, Legal guardian of a minor child may apply for any information, excluding personal identification, about his / her genetic parent excluding personal identification, about his / her genetic parent or parents or surrogate mother when required, and to the or parents or surrogate mother when required, and to the extent necessary, for the welfare of the child.extent necessary, for the welfare of the child.

Personal identification of the genetic parent or parents or Personal identification of the genetic parent or parents or surrogate mother may be released only in cases of life surrogate mother may be released only in cases of life threatening medical conditions, which require physical testing threatening medical conditions, which require physical testing or samples of the genetic parent or parents or surrogate or samples of the genetic parent or parents or surrogate mother. mother.

Critique of the BillCritique of the Bill It indirectly promotes commercial surrogacy by providing for It indirectly promotes commercial surrogacy by providing for

monetary consideration to the surrogate apart from all the monetary consideration to the surrogate apart from all the expenses. expenses.

It treats a surrogate as a baby-making machine.It treats a surrogate as a baby-making machine.

It does not give surrogate mother the option for deciding It does not give surrogate mother the option for deciding whether she wants to keep the baby in case if the whether she wants to keep the baby in case if the commissioning parents die. commissioning parents die.

It allows a woman to be a surrogate upto 5 times which can be It allows a woman to be a surrogate upto 5 times which can be detrimental to the health of the surrogate, who may continue to detrimental to the health of the surrogate, who may continue to undergo surrogacy to earn money even if her health does not undergo surrogacy to earn money even if her health does not permit the same & this can even cause the death of the permit the same & this can even cause the death of the surrogate.surrogate.

It does not provide for the compulsory Life Insurance of the It does not provide for the compulsory Life Insurance of the surrogate by the commissioning parents which the 228th Report surrogate by the commissioning parents which the 228th Report of the Law Commission of India subsequently mentions the of the Law Commission of India subsequently mentions the same, keeping in mind the risk of death associated with same, keeping in mind the risk of death associated with pregnancy.pregnancy.

Contd/-Contd/-

It neither creates, nor designates or It neither creates, nor designates or authorizes any court or quasi-judicial authorizes any court or quasi-judicial forum for adjudication of disputes forum for adjudication of disputes arising out of surrogacy agreements.arising out of surrogacy agreements.

It does not state as to how the It does not state as to how the genetic constitution of the surrogate genetic constitution of the surrogate baby be established and recorded baby be established and recorded with authenticity.with authenticity.

Law Commission of India Law Commission of India RecommendationsRecommendations

228th Report of the Law Commission of India, 228th Report of the Law Commission of India, titled titled ‘Need for Legislation to regulate Assisted ‘Need for Legislation to regulate Assisted Reproductive Technology clinics as well as Rights Reproductive Technology clinics as well as Rights and Obligations of parties to a Surrogacy’ and Obligations of parties to a Surrogacy’ submitted in August 2009 states that the 2008 submitted in August 2009 states that the 2008 Bill prepared by the ICMR is full of lacunae and it Bill prepared by the ICMR is full of lacunae and it is incomplete.is incomplete.

It makes a major recommendation:- a surrogacy It makes a major recommendation:- a surrogacy arrangement should provide for financial support arrangement should provide for financial support for surrogate child in the event of death of the for surrogate child in the event of death of the commissioning couple or individual before commissioning couple or individual before delivery of the child, or divorce between the delivery of the child, or divorce between the intended parents and subsequent willingness of intended parents and subsequent willingness of none to take custody of the child.none to take custody of the child.

Judicial Pronouncements in Judicial Pronouncements in IndiaIndia

Judiciary has recognized the reproductive right of Judiciary has recognized the reproductive right of humans as a basic right. humans as a basic right.

B. K. ParthasarthiB. K. Parthasarthi v v Government of Andhra PradeshGovernment of Andhra Pradesh: : AP HC upheld the right of reproductive autonomy of AP HC upheld the right of reproductive autonomy of an individual as a facet of right to privacy.an individual as a facet of right to privacy.

Agreed with the decision of US Supreme Court in Agreed with the decision of US Supreme Court in Jack T. Skinner Jack T. Skinner v v State of Oklahoma- State of Oklahoma- right to right to reproduce one of the basic civil rights of man.reproduce one of the basic civil rights of man.

Javed Javed vv State of Haryana- State of Haryana- refrained from stating refrained from stating that the right to procreation is not a basic Human that the right to procreation is not a basic Human Right.Right.

Contd/-Contd/- If reproductive right gets constitutional protection, surrogacy If reproductive right gets constitutional protection, surrogacy

which allows an infertile couple to exercise that right also gets the which allows an infertile couple to exercise that right also gets the same constitutional protection.same constitutional protection.

Immigration issues with respect to infants born to surrogates in Immigration issues with respect to infants born to surrogates in India first arose with the immigration of twins born at Dr. Patel's India first arose with the immigration of twins born at Dr. Patel's Akanksha Fertility Clinic in Anand in 2004.Akanksha Fertility Clinic in Anand in 2004.

Baby Manji Yamada Baby Manji Yamada vv Union of India Union of India (Supreme Court): dealt with (Supreme Court): dealt with the production/custody of a child given birth by surrogate.the production/custody of a child given birth by surrogate.

JanJan Balaz Balaz v v Anand Municipality: Anand Municipality: The surrogate mother did not lay The surrogate mother did not lay claim to the child, but the some questions does arise: claim to the child, but the some questions does arise: (a) What if the surrogate mother claims parentage? (a) What if the surrogate mother claims parentage? (b) What if the father too was not genetically related to the twins? (b) What if the father too was not genetically related to the twins? (c) What happens when an Indian Birth Certificate is not (c) What happens when an Indian Birth Certificate is not recognised in another country?recognised in another country?(d) What if a commissioning couple resides in or moves to a state (d) What if a commissioning couple resides in or moves to a state that prohibits surrogacy arrangements? that prohibits surrogacy arrangements? The matter has come before the Hon’ble Supreme Court of India The matter has come before the Hon’ble Supreme Court of India and is yet to be decided.and is yet to be decided.

ConclusionConclusion In India, there is no Law governing the issue of surrogacy and In India, there is no Law governing the issue of surrogacy and

even commercial surrogacy is allowed and the surrogate mother even commercial surrogacy is allowed and the surrogate mother hardly has any right other than the right to seek money at the hardly has any right other than the right to seek money at the time of entering into the contract of surrogacy.time of entering into the contract of surrogacy.

It has led to exploitation of poor women, who become surrogate It has led to exploitation of poor women, who become surrogate mothers for a meager sums like Rs. 25,000/-.mothers for a meager sums like Rs. 25,000/-.

The absence of any Law regulating the issue of surrogacy has The absence of any Law regulating the issue of surrogacy has led to serious legal issues relating to surrogacy agreements by led to serious legal issues relating to surrogacy agreements by foreign citizens or non-resident Indians, who come to India and foreign citizens or non-resident Indians, who come to India and commission surrogacy with Indian ladies. commission surrogacy with Indian ladies.

It leads to issues like the parentage of the child & nationality It leads to issues like the parentage of the child & nationality and causes great hardship at the time of transfer of the child to and causes great hardship at the time of transfer of the child to the country of the commissioning parents. the country of the commissioning parents.

The Draft ART Bill, 2010 can go a long way to solve the aforesaid The Draft ART Bill, 2010 can go a long way to solve the aforesaid problems, provided the Government takes into account the problems, provided the Government takes into account the lacuna and the errors relating to the Rights of the surrogate lacuna and the errors relating to the Rights of the surrogate mother, as pointed out in the Critique to the said Bill. mother, as pointed out in the Critique to the said Bill.

Thank You!Thank You!