Samkit Jain, NLU Jodhpur
Manav Bhagat, Nirma University
Subhadra, SOA National Institue of Law, Bhubaneswar
EDITOR: Varshita Girish, CAIL Bengaluru
Surrogacy comes from the Latin term “surrogatus" meaning a substitute, i.e., acting on behalf of another. It is a scientifically advanced method, which enables couples and individuals to have genetically linked children if they are unable to reproduce naturally. Surrogacy has existed in India from times immemorial one may even find a mention of it in our mythologies and religious texts. Despite this, there is an obvious distaste and stigma attached to surrogacy within our society. In India, as is the case everywhere else, there is a monumental pressure on females and young couples to bear children to ensure the continuance of their bloodline. This excessive pressure coupled with the biological inability to reproduce gave momentum to the rapid growth of the Assisted Reproductive Technologies (ART). One of the most popular forms of ART, in India, is Surrogacy. The definition for the same, according to the ART bill of India, is as follows: “An arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belongs to her or her husband, intending to carry it to the term and hand over the child to the person or persons for whom she is acting as a surrogate."
The Law Commission Report has identified two major kinds of surrogacy i.e., Commercial Surrogacy and Altruistic Surrogacy. Commercial Surrogacy is a financial arrangement wherein the surrogate mother who carries the baby is compensated monetarily for her good deed, on the other hand as the word altruistic suggests, Altruistic Surrogacy is indulged into for the sole reason of love, care and affection and does not demand any monetary compensation in return.
The growth of this industry was extremely rapid and off the charts. Today, India has become the surrogate capital of the world and commands Rs 25,000 Crore industry. This industry has become very lucrative in recent times. Despite such rapid growth of surrogacy and other forms of ART techniques in India, there has been a lag between the medical facilities and access available via the government and private sector in India.
However the societal trends, values and beliefs still stand in the way of such techniques and the societal notions are still controversial about this process. It has been 18 years since surrogacy was legalised in India but we are still in need of comprehensive legislation dedicated towards this process which provides an answer to any and every problem that may arise concerning all the parties involved in the arrangement.
Global Comparison of Surrogacy Laws:
India has often been considered as the ‘surrogacy capital’ of the world because of the relatively low cost and easy access offered by many Indian surrogacy agencies. Before 2015, India was a popular hub for surrogacy. In 2015, the Indian government banned commercial surrogacy. Surrogacy policies in India have varied from encouraging commercial surrogacy to allowing only altruistic surrogacy for infertile and needy couples. Indian government also banned single parents, homosexuals and live-in couples. Today due to lack of rules and legislation Indian surrogacy law make it illegal for foreign intended parents to complete a surrogacy in India, the only people who can opt for commercial surrogacy are the couples who have been married for more than five years.
In India, intended parents are the legal parents whereas according to UK law surrogate mother is considered as the legal parent whether she is biologically related to the child or not and if she is married then her spouse will be the other legal parent. ln UK, Surrogacy is considered to be legal but intended parents are not allowed to promote or advertise surrogacy as a service. Also, intended parents are not allowed to pay someone to be their surrogate except for the reasonable expenses. Homosexual couples have also been able to become intended parents. In the UK there are three stages to host surrogacy i.e egg donation, fertilization, transfer.
Unlike the UK and Germany, France doesn’t have any legislation that explicitly concerns surrogacy but there are several other general provision. In France, both commercial and non-commercial surrogacy agreements are not enforceable and declared as illegal. Also if any couple agrees or arranges with someone that is to bear the husband's child and surrender it on birth to the couple. The couple making such agreement or arrangement is not allowed to adopt the child.
In Iran surrogacy as an infertility treatment is practised in some popular institution. The main ethical concern of Iran is the monetary relationship between the intended parents and the surrogate mother. While monetary remuneration is legal in Iran and allowed by religious authorities, it seems to suffer from ethical problems which require new legislation in Iran.
Entering or attempting to enter into surrogacy agreements can be punished with imprisonment in the Netherlands. Although Altruistic surrogacy is legal in the Netherlands it is very difficult for couples to get on board as there are very strict rules in the hospitals. Also, surrogacy is only allowed if a family member is going to give birth on your behalf. Also, the surrogate mother must already have children and doesn't want any more children of her own. However commercial surrogacy is illegal in the Netherlands.
Surrogacy, egg sperm donation, embryo adoption and their combinations have been legal in Ukraine. According to the law, the surrogate mother has no legal right on the child and the child legally belongs to intended parents. Also, no specific order from any regulatory body is required, however, a written consent of all the parties (both the intended parents and surrogate mother) participating in the surrogacy program is necessary.
In South Africa, the intended parents and the surrogate mother have to get the surrogacy agreements validated from the high court before the fertilization. This allows the intended parents to be the legal parents even before the fertilization and helps prevent uncertainty. Also, the surrogate mother has the right to terminate the pregnancy and has to refund any medical expenses she had received.
In Russia, both gestational surrogacy and commercial surrogacy is legal. All adults (single woman and man) who are willing to be parents can opt for surrogacy in Russia. Liberal legislation it makes Russia more attractive for reproductive tourists looking for techniques which are not available in their country. Also, foreigners have the same rights as Russian citizens.
After analysing various legal rulings of the supreme court it can be concluded that surrogacy is part of the right to privacy and no unreasonable restriction regarding the same should be imposed upon individuals. by comparing the surrogacy laws of India with the united kingdom, Netherlands, the USA all have prohibited the commercial surrogacy while Russia permits it. Except for India, all the major nations such as Russia, United Kingdom, Greece, South Africa etc have no conditions as being married to be eligible to opt for surrogacy. while the surrogating mother is provided only for the medical expenses till the birth of a child, while others countries like Russia have no limit, while the United Kingdom has provided for insurance legal expenses, health care etc.
 Yashomati Ghosh, Surrogacy and Law: An Affirmative Approach to Deal with the Ethical and Legal Dilemma, Vol. II Journal of Law Teachers of India 83 to 92 (2011).  Indian Surrogacy Law Centre review of 228th Report by Law Commission of India, Web-Blog of Indian Surrogacy Law Centre (2020), http://blog.indiansurrogacylaw.com/indian-surrogacy-law-centre-review-228th-report-law-commission-india/ (last visited Jul 21, 2020).