A FEW MODEST

PROPOSALS REGARDING
SURROGACY
Submitted to:
Mr. Ranjit Malhotra

Submitted by:
C.S.V.S Vyshnav Reddy
2015-80

INTRODUCTION
Modern Assisted Reproduction technologies which can be utilised by infertile
couples or other people who cannot or do not wish to have children first came into the public
eye with the birth of the worlds first application of in-vitro fertilisation (IVF) with the
famous birth of the worlds first test-tube baby, Louise Brown. 1 IVF is the process of
artificially inseminating a woman with a mans sperm to increase the chances of fertilisation,
thereby circumventing male fertility issues. Since then there have been rapid advances in
technologies allowing for new and varied methods of reproduction such as the ability to
retrieve blastocysts from a womans uterus and fertilising it with a mans sperm to create a
viable embryo which can then be carried to full term by a third by a third party woman. Such
a process is termed gestational surrogacy. This process is arguably superior to IVF as it
vastly reduces any fertility issues caused by either the male or the female. Surrogacy is also
useful to homosexual couples as it allows them to propagate their genetic legacy instead of
being forced to turn to adoption in the quest for parenthood.

HISTORY OF SURROGACY IN INDIA

Surrogacy in India had been practiced in ancient times. 2 The man would impregnate a woman
outside of his marriage by having sex with her and the baby resulting from such a union
would then be handed over to the mans family. Sometimes the man would marry the woman
with the consent of his wife. The candidates for such surrogacy tended to be poorer relatives
because they had close or identical genetic material.

1 World's first test-tube baby pregnant again - without IVF: Louise Brown, 35, reveals her
joy at expecting second child six years after giving birth to a son, DAILY MAIL, 20 July 2013,
http://www.dailymail.co.uk/news/article-2371716/Worlds-test-tube-baby-Louise-Brownpregnant-second-child.html (Last Updated: 21 July 2013).
2 Surrogacy Bill 2016 imposes unjust bans and does not focus on the real issues, First Post,
20 August 2016, http://www.firstpost.com/india/surrogacy-bill-2016-imposes-unjust-bansand-does-not-focus-on-the-real-issues-2980460.html.

CONTROVERSIES SURROUNDING SURROGACY

The backlash to surrogacy is usually religious in nature and out of a fear of the unknown. In
recent times the backlash against surrogacy has been fuelled by concerns of exploitation of
the surrogate mothers with regard to the psychological and physical trauma they might
experience with having to carry a child to full term and then having to part with it abruptly
resulting in contracts that can be reneged upon. The exploitative and unsafe industry practices
that occur at some disreputable clinics have also brought disrepute to the practice of
surrogacy. There are also concerns about the rights of children born out of surrogacy with
regards to legal issues arising from questions over property rights and visitation rights of the
children as well as the issuance of exit visas to such children by the state in which they were
born which is used as a method used by states to regulate or disincentivise commercial
surrogacy without banning it outright, leading to arbitrary or unjust outcomes. There are also
issues faced in states where the surrogate mothers are legally considered
A closer look at each of the issues surrounding surrogacy is as follows.
Almost universally religions are opposed to surrogacy as they view it as a subversion
to the natural processes of reproduction as well as an indirect method for the strengthening
of unnatural phenomena such as homosexuality by allowing homosexual couples to have
children with their own genetic material which is already considered contaminated or
defective. Ignorance and a fear of the unknown also play a large part in the hold that religious
reasons have over peoples opposition to surrogacy.
The concern for surrogate mothers is borne out of the fear that women of lower
classes, the largest demographic of surrogate mothers especially in a commercial setting, who
are usually uneducated regarding the risks of surrogacy and thus make uninformed decisions
regarding the process. There are also concerns that the surrogate mothers are vulnerable to the
whims of the genetic parents regarding whether they accept children who are deformed and
whether they change their minds during the pregnancy as in the famous Baby Manji Yamada
case3 and the Baby Gammy case4. The children in such cases are abandoned to the care of the
3 AIR2009SC84
4 Baby Gammy: Australian father who abandoned Down syndrome surrogate child now tries
to

access

funds

donated

for

his

care,

INDEPENDENT,

20

May

2015,

http://www.independent.co.uk/news/world/australasia/baby-gammy-australian-father-who-

surrogate mother who might be ill-prepared to take care of said child and in any case did not
agree to or anticipate such circumstances.
Unsafe industry practices also raise concerns when clinics which do not follow proper safety
procedures in the interest of increasing profits endanger the health of prospective donors or
surrogate mothers. Cases such as Sushma Pandeys5 where the woman donating eggs at a
fertility clinic died two days after the procedure highlight the need for proper accountability
of clinics to their patients.
The famous Australian case of Baby M6 wherein, the surrogate mother who was a traditional
surrogate as opposed to a gestational surrogate decided after the birth of the child to keep it
instead of handing over custody to the contracting parents. The Australian court ruled that the
surrogate mother was the rightful mother of the child but handed over custody of the child to
the biological father after an analysis under the best interests of the child doctrine. This
opened up a can of worms regarding whether surrogacy can be held to be an enforceable
contract in the case of a traditional surrogate who supplies both the egg and the womb to the
pregnancy which would make her the biological mother in every sense. There is also the issue
of whether something like reproduction which is essential to the human race and plays a
central role in the moralities of virtually every society can be commodified and whether the
surrogate can decide to change her mind post facto.

PROPOSALS
The first issues that any state considering surrogacy needs to examine are the constitutional
arguments. In a free state where individual citizens are granted liberty to do with the right to
do as they please with their bodies there is no question as to the legality of surrogacy. But in a
state such as India where constitutional provisions are tempered by clauses referencing
morality, a democratic decision must be taken by the citizens by way of political action
within legislative bodies or perhaps through a referendum. A question of such importance
abandoned-down-syndrome-surrogate-child-now-tries-to-access-funds-10261916.html
5

The

great

Indian

egg

bazaar,

THE

INDIAN

EXPRESS,

February

2014,

http://indianexpress.com/article/india/india-others/the-great-indian-egg-bazaar/
6

BABY

CASE

CHRONOLOGY,

THE

NEW

YORK

TIMES,

http://www.nytimes.com/1987/04/01/nyregion/baby-m-case-chronology.html

April

1987,

cannot be left to the courts to deal with as they see fit or whether such questions can be
answered by constitutional provisions which deal with liberties.
If a state does not legalise surrogacy in any form it must keep in mind that such
technologies have been developed and are available in other countries. The genie is out of the
bottle and can be availed by anyone with the resources to travel and make a contract abroad.
It must therefore formulate laws, if desired, to prevent its citizens from reaping the benefits of
such a contract abroad through measures such as criminalisation of such activities by its
citizens worldwide like in the case of Australia and by communicating to the citizens that the
state will not grant citizenship to children resulting from surrogacy.
In a secular state the religious motivations of people must not have a direct impact on
the legality of surrogacy but must instead be expressed through the democratic process. The
question of which citizens can contract to be the beneficiaries of a contract of surrogacy must
also be decided democratically.
The issue of unsafe industry practices can easily be solved through the appropriate
regulatory framework. Clinics and agents which engage in the trade must be registered with
the appropriate government institution which need to maintain a central list. The state can
come up with the necessary standards, in conjunction with relevant stakeholders, that must be
upheld by clinics to ensure the safety of patients along with the attendant penalties for noncompliance.
If a state does decide to legalise commercial surrogacy, the rights of both the
surrogate mother and the prospective parents must be protected within a strict contractual
framework. It must be made a point in law that any prospective surrogate mother must be
counselled by the appropriate medical personnel on the physical and psychological impacts of
surrogacy as well as any attendant risks. In addition to this surrogate mothers must receive
ongoing counselling and therapy to minimise their risks of suffering from post-partum
depression which might compel them to change their minds after the birth so as to avoid a
repeat of the Baby M case. Neither the surrogate mother nor the contracting parents can ask
for the pregnancy to be terminated unilaterally, barring any risk to the health and safety of the
surrogate mother, unless there is mutual consent and can be adequately proven in a court of
law. It must also be a point of law that surrogacy contracts once agreed upon are strictly
enforceable against parents with respect to any defects that children are born with. The
contract must also be strictly enforceable against the surrogate mother so long as any other

statutory provisions are not contravened. The surrogate mother must hand over custody of the
child to the contracting parents regardless of whether she is a traditional or a gestational
surrogate. The contract, under law, once agreed upon must not be renegotiated with respect to
custody of the child unless there is mutual consent and can be proven under a court of law so
as to allay suspicions of undue influence or coercion exerted by either party.
The children once born must be considered the legal offspring of the contracting
parties. The question of visitation rights of the surrogates and gamete donors can differ on a
state to state basis depending on the results of the democratic process under which it can be
left to the relevant contracts or can be a point of law which would answer the question
definitively in either the affirmative or negative as decided by the democratic process.

CONCLUSION
The author hopes that this article, limited as it may be in its scope, may provide a
starting point for discussions surrounding surrogacy. The nations of the world should keep in
mind that as the technology has been developed and exists there is no way to turn back the
clock and pretend that it does not exist. Such considerations must be kept in mind when
formulating any laws relating to surrogacy as the temptation for infertile couples to take
advantage of surrogacy outside their own nation will be overwhelming if the regulatory
burden drives prices too high as in the case of the United States.