INDIAN BAR REVIEW

surrogacy agreement is labeled as altruistic when the surrogate mother receives no compensation or child support in return. urrogacy is a wonder!ul way !or those who cannot carry a child" to have a child o! their own. As in a traditional surrogacy the child may be conceived via home arti!icial insemination using !resh or !ro#en sperm or impregnated via I$I %Intra&$terine Insemination'" or I(I %Intra&(ervical Insemination' per!ormed at health clinic. A gestational surrogacy re)uires the implantation o! a previously created embryo" and !or this reason the process always ta*es place in a clinical setting. In surrogate motherhood" one woman acts as a surrogate" or replacement mother !or another

woman" sometimes called the intended mother" who either cannot produce !ertile eggs or cannot carry a pregnancy through to birth" or term. SURROGACY AT GLOBAL LEVEL +he international perspective is debatable issue with every country having it is own view on surrogacy. +he idea di!!ers !rom country to country" while some countries li*e India have co& operated at the international level" as o! now a!ter ,--, citi#ens o! other countries can come and hire surrogate mothers in India as well. +he $ and India today have such an understanding that they have published a rule boo* !or the children born in India and see*ing $ citi#enship. .n the other hand countries li*e /apan and Netherlands have imposed a ban on surrogacy calling it renting o! the womb. In Australia

a r r a n g i n g s u r r o g a c y i s a c r i m i n a l

c surrogacy can be done but commercial surrogacy continues to be illegal. +he same goes !or (anada where altruistic surrogacy is legal and commercial was made illegal a!ter ,--0. 1rance was one o! the !irst !ew countries to ma*e it legal in 23304 it had made surrogacy legal *eeping in mind the gains that would !ollow it. Wllile" Israel was the !irst country to have state controlled surrogacy that would overloo* the surrogacy practices personally by the government.2 +hough most industriali#ed countries have re5ected or greatly restricted the practice o! surrogate parenting. Australia" (anada" Norway" Denmar*" 1rance" 6ermany" 6reat Britain" Italy" Netherlands" Norway" pain" weden" and wit#erland all have national laws that prohibit or discourage the practice. +he $nited 7ingdom and 6ermany impose criminal sanction as well. Recent developments and research in the area o! reproductive medicine have resulted in various treatment options becoming available to
2. http899E#ineArticles.com9:-:0;<< accessed on ,<th /une" ,-2,. 210

Vol. XXXIX (3) 2012

o ! ! e n c e " w h i l e a l t r u i s t i

in!ertile couples. National laws governing surrogacy di!!er widely between 5urisdictions. +he variety o! domestic responses to surrogacy has led to a situation where in!ertile couples see*ing to have a child through surrogacy travel !rom one country to another" purposely choosing =surrogacy & !riendly= 5urisdictions as their destinations. (ross& border travel !or the purpose o! hiring a surrogate mother has been termed as =procreative tourism=. By and large" the ma5ority o! =procreative tourists= are childless Western couples attracted by =low&cost= surrogacy services and a ready availability o! surrogate mothers in places li*e India" Eastern Europe and outh America. In the absence o! a global legislative response" highly comple> legal problems arise !rom international surrogacy arrangements. Among these problems" the most prevalent are the )uestion o! legal parenthood and the nationality o! the chlld.? .ther great worry springing !rom the unregulated character o!.= procreative tourism= is the potential !or a =blac* mar*et= preying on peoples@ emotional or economic needs. It has been widely recogni#ed that there is an urgent need !or legal regulation o! surrogacy agreements at the international level. .n ;th April" ,-22" the Aague (on!erence on Brivate International law@s (ouncil on 6eneral A!!airs and Bolicy invited its Bermanent Bureau to intensi!y its wor* on the broad range o! issues arising !rom international surrogacy arrangements. International surrogacy cases o!ten involve problems concerning the establishment or recognition o! the child@s legal parentage and the legal conse)uences which !low !rom such a determination" +oday one is a clic* away !rom hundreds o! websites promising to solve the problems o! in!ertility through in vitro !ertilisation techni)ues %IV1' and surrogacy" It is now a simple !act that surrogacy is a booming" global business which has created a host o! problems" particularly when surrogacy arrangements involve parties in di!!erent countries throughout the world.@

( a l i ! o r n i a

has )uic*ly become *nown as a centre !or international surrogacy. +he starting point was the case o! Johnson. Vs. Ccloert' in which the (ali!ornian upreme (ourt made a number o! important points which paved the way towards (ali!ornia@s current position8 %I' A gestational mother cannot renege on the surrogacy agreement"

provided that agreement was !airly and properly reached4

,. :. 0.

http899con!iicto!iaws.net9,- 2-9a&study&on&the&private& intemational&law&aspects& o!&intemational&surrogacy&agreements9 http899con!licto!iaws.net9,-229hague&con!erence&to& wor*&on&surrogacy9 Johnson Vs. Calvert %233:' < (al. 0th C0" C<2 B.,d ;;D. 211