Recommendations of bill ( for pragya)

Without the proper regulation one main risk for many surrogate mothers is
that if the child is born with some kind of defect then the intending parents
could abandon the child which has been claimed in the Gammy case.

With India growing as a market for international surrogacy, it is time that

the legislature passes a law that adequately regulate the complex issues
surrounding it.

Many countries including the UK that have experimented with

altruistic surrogacy have realized that this only tends to push the
whole transaction underground. A woman who bears a child for
another one is actually performing a service and needs to be
compensated for it. If altruistic surrogacy is enforced, the
commissioning parents have to find some non-legal means to pay the
woman who has spent a year or more of her life trying to ensure the
birth of a healthy baby or babies.

We need to have a legislation which, while dealing with the

problems associated with surrogacy does not interfere with the
reproductive rights of a woman and freedom of choice available to an
individual

Adoption: Many argue that adopting orphan child should be given

preference than allowing commercial surrogacy.

i) Cases of abortions should be governed by the Medical Termination

of Pregnancy Act 1971 only.

Exploitation of the women through surrogacy is another worrying

factor, which the law has to address. The Law Commission has
strongly recommended against Commercial Surrogacy.
5) The surrogacy arrangement should also provide for financial support for
the surrogate child in case the commissioning couple dies before delivery of
the child, or divorce between the intended parents and subsequent
willingness of none to take delivery of the child so as to avoid injustice to
the child.
Confidentially should always be maintained, and the right to privacy of the
donor as well as surrogate mother should be protected.

Sex-selective surrogacy should be prohibited, and abortions should be

governed by the Medical Termination of Pregnancy Act 1971.

ANALYSIS (for Nidhi )

the government said it would henceforth “prohibit and penalise commercial
surrogacy services” so as to protect the “dignity of Indian womanhood”, and
to prevent “trafficking in human beings” and the “sale of surrogate child”.

Assisted Reproductive Techniques (Regulation) Bill, 2014.

Only a healthy, married woman between the ages of 23 and 35, who has a
child of her own above the age of three years, is allowed to become a
surrogate mother, with the consent of her spouse. The commissioning
parents must bear all medical expenses, insurance, etc., and are legally
bound to accept the custody of the child/children irrespective of any
abnormality that the child/children may have, and whether the parents
separate before the child/children are born. Violators face imprisonment of
up to five years or a fine of Rs 10 lakh, or both, for the first offence. The Bill
prescribes a minimum compensation for the surrogate mother.
Regulating Commercial Surrogacy in India- A Timeline
In 2005, the first attempt at regulating surrogacy was made by the Indian
Council of Medical Research (ICMR). The ICMR issued guidelines for
regulating Assisted Reproductive Technique (ART) clinics. However, these
are not enforceable and hence have been repeatedly flouted.
In 2008, the Supreme Court delivered a landmark verdict, recognizing
commercial surrogacy in India. In Baby Manji Yamada v. Union of
India [(2008) 13 SCC 518] the parents seeking surrogacy divorced during
the pregnancy and the mother refused to accept the baby. The Court
finally granted custody to the baby’s grandmother. The Court held that
surrogacy was a recognized medical procedure that was perfectly legal in
India and many other jurisdictions.

Another major legal issue when it comes to international surrogacy is the

citizenship that is to be granted to the baby arising out of such an
agreement. In Jan Balaz v. Anand Municipality [AIR 2010 Guj 21], this
question was debated. Twin children were born out of the surrogacy
agreement in question. The couple were from Germany, working in the
United Kingdom and the children required Indian passports to travel.Their
citizenship was being debated in court, leading the passport authorities to
withhold the passports. Germany, the home state of the couple did not
recognize surrogacy. The Court denied the passports but granted an exit
permit to the children. The German authorities decided to give the couple
an opportunity to adopt the children thereafter. By the time such a
decision was rendered, the twins were already two years old. This case
brought forward the glaring need for legislation in the surrogacy industry.

The Trend of International Surrogacy

Laws of the two countries must be at par in order to harmonize the process
of surrogacy. Many countries, such as Germany, Italy and England do not
recognize the validity of surrogacy contracts. Differential nationality laws
also create a hurdle when taking a child back to the parents’ country.

A comprehensive regulatory framework and binding legal provisions could

bring order to the field, but the larger moral question whether human
reproduction should be commercialised would still remain.
In past there has been death cases associated with surrogacy

Although in 2005, ICMR issued guidelines for accreditation, supervision,

and regulation of ART clinics in India, these guidelines are repeatedly
violated.(2) Frustration of cross border childless couples is easily
understandable who not only have to cope up with language barrier, but
sometimes have to fight a long legal battle to get their child. Even if
everything goes well, they have to stay in India for 2-3 months for
completion of formalities after the birth of baby. The cross border surrogacy
leads to problems in citizenship, nationality, motherhood, parentage, and
rights of a child. There are occasions where children are denied nationality
of the country of intended parents and this results in either a long legal battle
like in case of the German couple with twin surrogate children or the Israeli
gay couple who had to undergo DNA testing to establish parentage or have a
bleak future in orphanage for the child. There are incidences where the child
given to couple after surrogacy is not genetically related to them and in turn,
is disowned by the intended parent and has to spend his life in an
orphanage.(3)

1) If we look upon the problem of surrogate mothers, things are even worse
and unethical. The poor, illiterate women of rural background are often
persuaded in such deals by their spouse or middlemen for earning easy
money. These women have no right on decision regarding their own body
and life. In India, there is no provision of psychological screening or legal
counseling, which is mandatory in USA. After recruitment by commercial
agencies, these women are shifted into hostels for the whole duration of
pregnancy on the pretext of taking antenatal care. The real motive is to guard
them and to avoid any social stigma of being outcast by their community.

SCI Surrogacy Centre India

 Ratings: 4.87 / 5
 Surrogacy Package: Rs. 13,30,000
 Location: Delhi
Mannat Fertility Clinic

Ratings: 4.7 / 5

Surrogacy package: Rs. 13,00,000

Location: Bangalore

Advanced Fertility and Surrogacy Center Lajpat Nagar

 Ratings: 4.82 / 5
 Surrogacy package: Rs. 12,00, 000
 Location: Delhi
Wellspring IVF and Womens Hospital

 Ratings: 4.8 / 5
 Surrogacy package: Rs. 13,00,000
 Location: Ahmedabad, Gujarat.