Index

Acknowledgement

I would like to express my special thanks of gratitude

To my teacher Dr.Deo Narayan Singh who gave me golden opportunity to do

this wonderful project on the topic. Which helped me in doing a lot of research
and i came to know about so many new things.

I am really thankful to them.

Secondly I would also like to thank my parents and friends who helped me a lot
in finishing this project with in the limited time.

I am making this project not only for marks but to also increase my knowledge.

Thanks again to all who helped me.

Submitted By Swaraj Digi

CUSB1913125108

1st B.A.LL.B.
List of Cases
 Introduction

Surrogac y is an arrangement, often supported by a legal agreement,

whereby a woman (the surrogate mother) agrees to become pregnant and
give birth to a child for another person(s) who is or will become the
parent(s) of the child. Nature has bestowed the beautiful capacity to
procreate a life within women and every woman cherishes the experience
of motherhood. Right to reproduction is an innate right of an individual.
The desire for children among couples is a universal phenomenon.
Parenthood is a life changing and eternally rewarding experience. The
pain and agony of not fulfilling the dream of parenthood is immeasurable.
The science of infertility treatment has moved forward by leaps and
bounds. Every society across the world has given primary Importance to
the institution of family. W hen two individuals come together and enter
into a Matrimonial bond, a new family comes into existence and such
family becomes complete with the birth of the children. From the ancient
times, children are conside red as a necessity for the continuation of
the family lineage and a source of happiness for the parents.
Psychologist’s points out that birth of a baby creates a bond between the
spouses which can help stressful marriages to sustain in the lo ng run.

However due to various reasons, a large section of the society are

unable to have their child. Research has stated that one in six couples
have such problems. The absence of a child is considered as a stigma
to the family. There are many instances where the inability to have a
child led to matrimonial breakdown. The inability to have a child which is
known as infertility in medical terms is a global problem. According to the
W HO Report the incidence of infertility across the globe includi ng India is
around 10-15 percent. 1

People may seek a surrogacy arrangement when pregnancy is medically

impossible, when pregnancy risks are too dangerous for the intended
mother, or when a single man or a male couple wish to have a child.
Surrogacy is considered one of many assisted reproductive technologies.
In surrogacy arrangements, monetary compensation may or may not be
involved. Receiving money for the arrangement is known as commercial

1**Student, LL.M., Centre For Juridical Studies, Dibrugarh University, Dibrugarh,

Assam
surrogacy. The legality and cost of surrogacy varies widely
between jurisdictions, sometimes resulting in problematic in ternational or
interstate surrogacy arrangements. Couples seeking a surrogacy
arrangement in a country where it is banned sometimes travel to a
jurisdiction that permits it. In some countries, surrogacy is only legal if
money does not exchange hands. (See surrogacy laws by
country and fertility tourism.)
W here commercial surrogacy is legal, couples may use the help of a third -
party agency to assist in the process of surrogacy by finding a surrogate
and arranging a surrogacy contract with her. These agencies often screen
surrogates' psychological and other medical tests to ensure the best
chance of healthy gestation and delivery. They also usually facilitate all
legal matters concerning the intended parents and the surrogate.

There are two types of surrogacy — traditional surrogacy and gestational

surrogacy. In traditional surrogacy, a surrogate mother is artificially
inseminated, either by the intended father or an ano nymous donor, and
carries the baby to term. The child is thereby genetically related to both
the surrogate mother, who provides the egg, and the intended father or
anonymous donor. 2

In gestational surrogacy, an egg is removed from the intended mother or

an anonymous donor and fertilized with the sperm of the intended father
or anonymous donor. The fertilized egg, or embryo, is then transferred to
a surrogate who carries the baby to term. The child is thereby genetically
related to the woman who donated the egg and the intended father or
sperm donor, but not the surrogate. Some lesbian couples find gestational
surrogacy attractive because it permits one woman to contribute her egg
and the other to carry the child.

Traditional surrogacy is more controversial t han gestational surrogacy, in

large part because the biological relationship between the surrogate and
the child often complicates the facts of the case if parental rights or the
validity of the surrogacy agreement are challenged. As a result, most

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states prohibit traditional surrogacy agreements. Additionally, many states
that permit surrogacy agreements prohibit compensation beyond the
payment of medical and legal expenses incurred as a result of the
surrogacy agreement.

Surrogacy Qualifications
Most surrogacy agencies and fertility clinics require surrogates to meet
the following general qualifications:

a. Be in good physical and mental health;

b. Have carried and delivered at least one child;
c. Have had pregnancies that were all free of complications and were full-
term;
d. Be less than 43 years of age (some clinics will accept older woman in
certain circumstances; others have younger age cut -offs for all
surrogates);
e. Be in a stable living situation; and
f. Not smoke or abuse alcohol. 3

Reasons for surrogacy

A surrogacy arrangement may be considered if:

1. a woman is unable to become pregnant or carry a pregnancy

because she has had a hysterectomy or is missing part of her
uterus, ovaries or other parts of the genital tract
2. a woman has a health conditio n that makes pregnancy dangerous
3. a couple in a male same -sex relationship wish to have a child using
the sperm of one or the other partner
4. a single man wishes to have a child using his sperm
5. a woman who has frozen embryos in storage dies and her male
partner wishes to use the embryos to have a child.

Things to consider before entering a surrogacy arrangement

3 hrc .o rg /res o ur c es / o ve r v i e w - of - t he- s urr o gac y- pr oc es s

4There are many medical, emotional, financial and legal issues to
consider when entering a surrogacy arrangement. There are also matters
to be aware of once the surrogate gives birth and gives the child to the
intended parents.

General information is provided here but for detailed information about all
aspects of surrogacy

Key factors for a successful surrogacy arrangement

Factors that can contribute t o a positive surrogacy arrangement include:

6. all parties being in good mental and physical health

7. clear and open communication between all parties
8. clear boundaries and mutual understanding of the relationship and
interactions between the surrogate and her family and the
commissioning parent(s)
9. having realistic expectations about the chance of a successful
outcome
10. all parties having a good understanding of the medical processes
involved
11. being realistic about the timeline (it can take a year or more before
embryo transfer occurs)being prepared for the emotional responses
and reactions that can occur during the process agreement between
parties regarding what is fair and reasonable payment of the For
those considering an international surrogacy, there’s usua lly one
specific process they consider first: surrogacy in India.

Indian surrogacy has long been a popular option for international intended
parents but, like most in ternational surrogacies today, has recently gone
through major legislative reform to bring regulation to the surrogacy
process. Because of this, if you’re an international intended parent

https://surrogate.com/intended -parents/international -surrogacy/surrogacy -

in-india/
considering surrogacy in another country, surrogacy in India likely won’t
be the answer for you.

Here’s what you need to know if you’re considering a gestational

surrogacy in India:

Indian History of surrogacy

Hindu mythology also offers instances of surrogacy and reflects the

secrecy that still
Beseeching Kansa not to kill all sons being born. Vishnu heard these
prayers and had an
Rohini gave birth to the baby Balaram, brother of Krishna, and secretly
raised the child while Vasudev and Devki told Kansa that the child was
born dead.
In the Mahabharat, Gandhari did not deliver a child rather delivered a
semi solid material which was divided by Maharishi Vyas into 100 pieces
and planted them in different pans. Thus, the 100 Kauravas were borm.
Similarly, Maharishi Bhardwaj saw a divine nymph coming out of water
after having a bath and seeing such a beautiful woman, he felt discern
and deposited his semen in pot used for yagna called Darona.
This is from where Dronacharya was born and named after the
vessel. Thousands of years after the biblical events in 599 AD, the
th
24 Trithankar, Mahavira, was born after an embryo had been
Jain Mythology. Devananda, wife of a Brahmin named Rishabdeva
conceived him. The gods, ingeniously, transferred the embryo to the
womb of Trishala.
The days later on October 3, 1978, through the efforts of Dr. Subhas
Mukherjee and his two
colleagues in Kolkata. The birth of baby Kanupriya (also known as Durga),
through the novel
procedure was marked by tremendous controversy.
5

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 Is Surrogacy Legal In India?
W hat had once been a popular destination for international intended
parents no longer became an option in 2015, at which time the Indian
government passed new regulations on the surrogacy process. Today,
Indian surrogacy laws make it illegal for foreign intended parents to
complete a surrogacy in India. The only people who can complete a
commercial surrogacy in India today are Indian intend ed parents who
have been married for at least five years. 6

The ban on foreign intended parents in 2015 was only the start of
legislation regulating surrogacy. In December 2018, after almost two
years of debate, an Indian surrogacy law was passed that:

12. Made commercial surrogacy illegal

13. Only allows altruistic surrogacy for needy, infertile Indian couples
14. Requires intended parents to be married for five years an d have a
doctor’s certificate of their infertility
15. Restricts women to being surrogates only once, and only if they are a
close relative of the intended parents, are married and have a
biological child
16. Bans single parents, homosexuals and live -in couples from surrogacy

These changes reflect a new era of surrogacy in Asia; other countries like
Thailand and Nepal have recently implemented surrogacy bans, as well.

Why Has Indian Surrogacy Been Banned?

It’s hard to pinpoint exactly one reason why surrogacy in India has been
banned for international intended parents, but it’s easy to identif y some
reasons that may have played a role in this decision by legislators.

6https://surrogate.com/intended -parents/international-
surrogacy/surrogacy -in-india/
Like all international surrogacies in lesser -developed countries, the
protections available for intended parents and surrogates are less
available — and have led to harmful results. W hen Indian surrogacy first
became a booming industry, there were no regulations in place, and
unsafe and unethical practices developed in response. 7

The women who chose to become surrogates in India during this time
were subjected to unethical treatment, poor living conditions and
exploitation. To keep up with demand from international intended parents,
Indian surrogacy agencies effectively ran “baby factories,” where Indian
women were forced to live until they gave birth to the intended parents’
babies — with usually no assistance for the family they had left behind
while pregnant.

In addition, the surrogates in India only received a fraction of the

expenses that intended parents paid the surrogacy agency — only $4,000
to $5,000 for compensation . W ith agencies charging more than double
that in total, surrogates were commonly exploited in commercial
surrogacy. Their poverty and lack of education drew them back into the
surrogacy process over and over again for thi s financial gain, and their
health declined as they effectively became “baby -making machines” year
after year. They also did not receive the kind of supportive services they
needed for themselves and their family during this emotional journey. 8

In response to these stories emerging over time, the Indian government

attempted to take steps to make the process safer for all involved.

8 8https://surrogate.com/intended -parents/international-
surrogacy/surrogacy -in-india/
Unfortunately, that resulted in a restrictive process that has made the
process more difficult or completely impossible, rathe r than safer. 9

Will Indian Surrogacy Ever Be Legal Again?

It’s hard to speculate about where the Indian surrogacy laws will go from
here. If the recently passed bill is any indication, it seems like surrogacy
in India won’t be possible any time soon for in ternational intended
parents.

This is why many surrogacy professionals recommend working in an area

that has regulations aimed to protect those involved — rather than
working with a surrogate in a location that has banned the frigidity
process outright. It’s not unreasonable to predict that surrogacy will
continue in India, even if it’s illegal, putting more intended parents and
surrogates at risk than before. In this way, the surrogacy laws in India
likely won’t succeed in their goal, and the controversies surrounding
Indian surrogacy may not dissipate as quickly as planned.If you’re
considering surrogacy in India as a foreign intended paren t, it’s best to
consider other locations to complete your surrogacy goals, so as to avoid
legal repercussions. 10

The United States is one of the best options available to complete your
surrogacy in a safe, well -regulated way, and many surrogacy
professionals advise it be at the top of your list. 11

To learn more about your options for completing surrogacy as an intended

parent, we recommend you contact an experienced surrogacy agency .12

9 9https://surrogate.com/intended -parents/international-
surrogacy/surrogacy-in-india/
 AV AI L ABLE S URROG AC Y S ITU ATIO NS FROM
AROUND THE COUNTRY

For many intended parents, looking for a surrogate mother is one of the
most exciting, yet overwhelming, steps in the surrogacy process.

Many surrogacy professionals maint ain an “available surrogacy situations”

page to help prospective intended parents find a surrogate mother who
has been screened and is ready to proceed with the surrogacy process.
Intended parents who have completed the necessary screening
process and are looking for a surrogate mother may be able to
immediately enter into a match through these surrogacy situations.

Individuals and couple s looking for a surrogate mother often must meet
certain agency requirements before inquiring about an available surrogacy
situation. Generally, prospective intended parents must have a completed
in-home assessment and background clearances before an agenc y will
match them with a prospective surrogate.

If you contact a surrogacy professional about an available situation, you

may have an opportunity to review the prospective surrogate’s profile. The
professional may also collect information about you to shar e with the
prospective surrogate.

Once both parties are interested in moving forward, you will have an
opportunity to get to know each other better before continuing with the
surrogacy process. 13

13
Case Study of Surrogacy