Chapter-I

1. Introduction
Interrogating and inspecting the Indian history, and ancient vedic culture the purpose of
marriage is to propagate children , sociology also stress this aspect of marriage. The term
used in India is ‘Vansh’ i.e., lineage. Most of the religious duties are often performed by
or for children for moksha or liberation of parents some of them are kanya daan of
daughter, pind daan for forefathers by their respective lineage. Therefore infertility
considered as social stigma. It leads to social pressure on married couple which results in
psychological trauma, its aggravating form also lead to mental cruelty of them. Some
time it also cause break down of marriage. If we turn back to 19 th century it was not far to
know that husband opt for second marriage and women were only considered responsible
for not having child.

In our ancient vedic scripture the concept of surrogacy, that is hire of womb were
recognized and respected. Kartikey son of God Shiva and Parwati was born out of
kritikas. Dhtitarastra and pandu were also born out of surrogacy.

The instinct of having offspring is naturally there in every living organism. The couple
desire to have their own child in this era of technology is performed by Advance assisted
reproductive techniques (ART), This is the process to assist reproduction for couples
those are unable to procreate, may be because of infertility, or other physical issues. In
Surrogacy a womb of different women (altruistic or commercial) is hire to produce child
of infertile couple1.

IVO i.e., in vitro fertilization, is used to fertilize an embryo into the uterus of surrogate
mother. This process is called gestational surrogacy2.

Where as in traditional method surrogate mother is artificially impregnated by the gamete

of intending father, here the surrogate mother carry both gestational and genetic child of
couple3.

Commercial surrogacy is now banned in India; it is also banned in some of the states of
United States, England, Australia and others. It is legal in countries like, California and
others where as it is completely banned in Germany, Sweden, Norway and others.

After long run and struggle, India recently passed Surrogacy Act, 2021 to regulate
Surrogacy. However there are PIL pending in supreme court for its lacuna. One of the
1
Lyria Bennett Moses, ―Understanding Legal Responses to Technological Change: The Example of In-
Vitro Fertilization‖, 6 Minn. J.L. Sci. & Tech. 505 (2004-2005), at p.510.
2
Jonathan Herring, Medical Law and Ethics, Oxford University Press, U.K. (4th edn. - 2012), p.384.
3
Charles P. Kindregan, Jr., ―Thinking About the Law of Assisted Reproductive Technology‖, 27 Wis. J.
Fam. L. 123 (2007).

1|Page
PIL filed by Advocate on record Mohini priya. She stressed issues regarding ban on
Commercialization of Surrogacy.

The long struggle behind the advent of this act and need of the advent is described. In this
dissertation we will further lead with its Aim, purpose, objective, issues (legal, ethical,
medical consequence). It covers biological, technological and legal issues regarding
surrogacy.

1.1 Background
Unregulated law and widespread of Surrogacy medical market i.e, as per CII report 2012,
size of this industry was almost $2 billion annually. This show India was acting as hub of
surrogacy. It was promoting medical tourism in India. Foreigner adopts India for its
cheap access and low cost with loosed law with lacunas.

However the unregulated industry also became centre for exploitation of surrogated
mother , abandonment of children, organ trade, embryo import and others.

These are the wider reason for adoptions of regulated laws.

Before 2021, widespread unethical surrogacy practices made India top global destination.
Availability of poor women was highly probably in India. Several reports of deaths of
surrogate mother and egg donors, abandoned and disabled children, custody and
nationality controversies of children were transparent. On of the well known case study
of baby Manji, AIR 2009 SC page 844. In this case 2 Japanese couple adopted for
surrogacy in India but later on they got divorced and the baby’s nationality was in
controversy. Later on with the intervention of Supreme Court the baby was allowed to
leave with her grandmother. The Supreme court in 2008 permitted surrogacy and after
that there were increased international confidence gained.

Another case law Jan Balaz vs Anand Municipality5

In this case Gujarat High Court ruled that the German couple would be granted the child
by adoption process only by surrogate mother and the birth certificate would contain
surrogate mothers name instead of biological mother. Child was also granted Indian
citizenship.

4
Dhananjay Mahapatra, Baby Manji's case throws up need for law on surrogacy,
http://timesofindia.indiatimes.com/articleshow/3400842.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (last Visited 29.06.2023)
5
Letters Patent Appeal No. 2151 of 2009 in Special Civil Application No. 3020 of 2008

2|Page
After this case they felt great need on this subject. This brought the surrogacy ban bill
into existence. ICMR through letter dated 28 th sept. 2015 directed all the clinics not to
assist foreign couples through Indian surrogate mother.

Surrogacy bill 2015 brought into parliament and passed by lok shabha, but the later due
to dissolution of lok shabha the bill lapsed. Later in 2019 the bill with new provision
passed by the parliament and it enforced as Surrogacy (regulation) Act 2021, further
surrogacy regulation rules 2022.

Research Hypothesis

The notion of surrogacy within India has existed from the time before record. Yet it has
got new depth and drive, with the recent progress of the first test tube baby, far back in
the 1980s.

The Assisted Reproductive Technology programmed has served a significant role and
offer new knowledge and hope to infertile couples to have their own children.

In light of current developments and numerous requests, the government of India has
introduced a draft law prohibiting commercial surrogacy because of the consequences on
impoverished people.

The Bill has been adopted and the current Surrogacy (Regulation) Amendment Bill has
gone into law limiting commercial surrogacy and enabling altruistic surrogacy. Thus,
present investigation depend on subsequent hypotheses-

I. The Surrogacy (Regulation) Act 2021 is not adequate to curb exploitation of surrogate
mother.

II. The restriction on donation of gamete violates reproductive autonomy.

III. The Surrogacy (Regulation) Bill, 2022 is not adequate enough to restrict the
commercialization of surrogacy in India.

RESEARCH OBJECTIVES

The notion of surrogacy is not uncommon yet it has been refined from time untraceable.
The legislature in order to manage the adverse impacts of commercial surrogacy has
proposed an amendment to the law so that commercialization of surrogacy may be
totally prohibited in India since it doesn’t just influence the economic situation but
affects it as a whole.

The object of this study is to examine the new law and the impacts of the legislation and
to determine if the proposed bill would be appropriate and successful in dealing

3|Page
with commercial surrogacy. This is also one of the research aims to figure out lacunas if
any in the purposed law in the light of biological, technological and legal elements and
difficulties.

RESEARCH METHODOLOGY

The topic of study is largely linked to the assessment of surrogacy in India and the
relevant law which has been approved lately for forbidding of commercialization of
surrogacy in India and enabling the altruistic surrogacy.

Thus, the research methodology will be largely doctrinal in character with the support of
pertinent primary and secondary sources.

The technique has been chosen to undertake a full study regarding legal, and economic
aspects affecting surrogacy agreements.

Literature Review

A) Articles

1. Mukherjee, “Legal and Ethical issues of commercial surrogacy6:

In this, it is deduced that the right to procreate is a basic and fundamental right.To
overcome both physiological and psychological infertility surrogacy is exactly
the best solution. Surrogacy provides to offer children to people who are
incapable of conceiving. In this, it is also inferred that regulation of gestational
surrogacy safeguarded the rights of surrogate and the desired parents who require
a baby child.

2. Anu, Pawan kumar, “Surrogacy and women's rights to health in India7:

In this, it is inferred that the expected parents get a kid via surrogate which is
termed as surrogacy. This covers women who become victims by the manner of
surrogacy like after delivering a kid she is incapable of supporting herself.
Additionally, the increase of surrogacy in some way turned into commercial
surrogacy where women are compelled to conceive a child and often get exploited
by the agencies Due to the absence of particular legal enforcement other diverse
rights of surrogates are infringed and no regulations are there to curb exploitation.
Agents paid them less money to beget a child and receive more from the
6
Mukherjee An overview, LEGAL_AND_ETHIC
AL_ISSUES_OF_COMMERCIAL_SURROGACY_IN_IN DIA_AN_OVERVIEW January 15th, 2011, ”,
https://www.academia.edu/1955503/ (last visited 06.07.2023)
7
Anu, Pawan kumar, “Surrogacy and women's rights to health in India: Issues and Perspectives”,
accessible at, https://www.academia.edu/login?post_login_redirect_url=https%3A%2F
%2Fwww.academia.edu Surrogacy_and_Womens_Right_to_Health_in_India_Issues_and_Perspective
%3Fe mail_work_card%3Dview- paper, October 29th,2019, (last visited 06.07.2023)

4|Page
 desired parents. Agents use surrogates as apparatuses for delivering a kid without
having an examination of their health difficulties.

3. Seketu v.shah, Challenges linked to surrogacy8:

In this meaning and forms of surrogacy is addressed. Motherhood is the act of

begetting a child for the intended parents. In this, different themes also mentioned
such as socio-physiological concerns, legal subjects, religious matters, health
difficulties etc. Socio-physiological concerns i.e. A surrogate mother has to
deliver a kid soon after the birth of the baby and the expected parents welcome
that baby which leads to a certain soft spot in the mind of the surrogate mother.

Secondly, it is tough for a husband to accept that he obtains a kid from different
women besides his own wife.

Thirdly, surrogate maternity increase disputes in her own household and it also
contributes to tough for her own spouse and babies. Legal issues i.e. surrogacy
agreements are legally binding. subsequently, surrogate requires consent of her
spouse to become a surrogate.

Then the surrogate shall have her own kid. The surrogates produce baby
children for individuals who are lawfully wedded and are unable to conceive their
own offspring. Health concerns i.e. there are various health difficulties that are
encountered by a surrogate including weight gain, dizziness, medicine, vomiting,
birth of child etc.

All these are extremely tough for the surrogate to face. Religious problems i.e.
every religion had its own stance about the surrogacy the BIBLE is portrayed as a
baby's gift, not an entitlement.

The Muslim religion views every sort of surrogacy are HARAM and thus all are
anti-Muslim community.

4. Jovannie R, The contentious function of a surrogate9:

In this, it is determined that the current infertility rate is growing every day which
could result in the divorce of couples. To escape this scenario some people
counsel to adopt an orphanage but some want genetically their own child so they
opt for surrogacy to obtain their own baby. They offer amenities to the
surrogate until the birth of their kid. In all this, sometimes the rights of
surrogates get violated whether physically, emotionally or psychologically.
8
Seketu v.shah, Challenges linked to surrogacy, accessible at, https://www.academia.edu/login?
post_login_redirect_url=https%3A%2F%2Ffanyv88.com%3A443%2Fhttps%2Fwww.academia.surrogacy.pdf%3Fem ail_w ork_card
%3Dview-paper ,October 29th,2019
9
Jovannie R, The contentious function of a surrogate, accessible at, https://www.academia.edu/login?
post_login_redirect_url=htt ps%3A%2F%2Fwww.academia.edu.Thesis_New_Form at%
3Femail_work_card%3Dview-paper, October 31st , 2019

5|Page
 The job of the surrogate became contentious as she bore a kid in her womb for a
term of nine months and she got emotionally connected with the baby it was
difficult for her to hand over the child to the intended parents after the birth.

While surrogacy is not embraced by all some are opposing it and for others
surrogacy is a delight meanwhile there is no legal enforcement surrounding this
which abuses the surrogate mother. So this notion is considered as contentious.

5. R.S Pornima, Surrogacy: Wombs for Rent10:

In this, it is extrapolated that Nature supplies bliss to each and every woman to
relish motherhood but unexpectedly due to certain physical issues some
females are not able to evolve as mothers of their own offspring then they
probe for other alternatives concerning this they go for either IVF or embryo
transfer and a couple go for surrogacy and this is the concept operating these days
to have a kid.

Surrogacy viewed as a uterus for hire which is lawful only when a near relative
delivers the kid to the desired parent which is referred as gestational surrogacy.
But recently surrogacy has become commercial, where surrogates are contracted
to beget a baby.

Agents and agencies are engaged in this that is not legal. Surrogates are
considered robots for producing a child. That's why surrogacy is regarded as
the womb for rent. Very insignificant money is supplied to the surrogates for
begetting a child and agents compose a significant amount of money from the
desired parents.

6. Pooja yadav, Law and Policy on surrogacy: A Comparative study of India and
other nations,11

In this, it is demonstrated that the usage of surrogates is expanding day by day.

The majority of nations have not yet established any legislation to handle
surrogacy. However, in the recent two decades, there has been an increase in
regulations addressing surrogacy. Countries like Germany and Italy prohibit every
form of surrogacy. In the UK, no contract or surrogacy arrangement is legally
binding.

10
R.S Pornima, Surrogacy: Wombs for Rent , available at, https://www.academia.edu/login?
post_login_redirect _url=htt ps%3A%2F%2Fwww.academia.edu.SURROGACY _THE_ CONS
%3Femail_work_card%3Dview-paper, November 1st,2019
11
Pooja yadav, Law and Policy on surrogacy: A Comparative study of India and other nations, accessible at
https://www.academia.edu/37114858/Law_and_Policy_on_
Surrogacy_A_Comparative_Study_of_India_And_Other_Co untries?email_work_card=view-paper,
November 4th,2019

6|Page
 In the US, compensated surrogacy agreements are outlawed. In Australia,
agreements concerning surrogacy are a criminal crime and any agreement related
to surrogacy becomes null. In Canada and New Zealand, since 2004 commercial
surrogacy has been forbidden but Altruistic surrogacy is permissible. In Israel,
commercial surrogacy is illegal. As mentioned above each nation has its specific
laws surrounding surrogacy.

7. Anureet lotay, commodifying bodies: An overview of the bioethical implications

of transnational commercial surrogacy12:

In this, it is determined that commercial surrogacy is a kind of surrogacy has

come into practice in which surrogate is paid to deliver a child for the intended
parents. This theory includes the exploitation of women.

Transnational commercial surrogacy breaches the rights of surrogates and

results in the inferior physical and mental condition of the surrogate mother. Only
middlemen and the agents receive monetary profit through surrogacy. The agency
and middleman gather money from the prospective parents and provide less to
surrogate. resulting from various legal concerns, Socio-psychological issues,
religious problems etc. affect the rights of surrogates and one more prevalent
issue i.e. health problems like discomfort, vomiting, weight gain, fatigue etc.
which all are encountered by the surrogate. Here, intermediary and agents are
viewed as the commodifying bodies.

B) Book Review

1) Gita Aravamudan, Babymaker: The Narrative of Indian Surrogacy (2014): In

this book, the researcher discussed that families are no longer established in a
typical way some choose to adopt orphans. but today surrogacy is one of the
notions of obtaining an own kid who is struggling to deliver their own baby.

This element advances the market for countries like India, where there are
no precise rules regarding it. Then health concerns of the surrogate and donor are
also abused owing to the commercialization of surrogacy.

The surrogates are not looked after properly and the numerous pregnancies
produce different health problems for those surrogates either emotionally or
physically. In this book, the writer sees numerous capacities in which individuals
of varied temperaments, cultural orientations and social positions address the
matter in very diverse ways.

2) James Phillip, Surrogacy-

12
Anureet lotay, commodifying bodies: An overview of the bioethical implications of transnational
commercial surrogacy, available at, https://www.academia.edu/21434139/Commodifying_Bodie
s_An_Overview_of_the_Bioethical_Implications_of_Transn ational_Commercial_Surrogacy?
email_work_card=viewpaper , November 6th 2019

7|Page
 A family‟s journey (2018): In this book, the narrator talks about surrogacy which
is encountered by his own family. He describes surrogacy in several
dimensions social, emotional etc.

In accordance to him, surrogacy generally concentrates on the emotional

factors encountered by the desired parents such as hopes, frustrations, worries etc.
there are fewer possibilities to be practical. The author transmits his family
experience via this book that surrogacy is complicated and feelings engaged until
the time of delivery of the youngster.

In this book, it is discussed that the couples who are incapable of having their own
kid due to medical issues, surrogacy is a delight for them. They are obtaining their
own biological kid via surrogacy if somebody does not desire a child by way of
adoption. As to the book, surrogacy is a Bliss for the desired parents.

3) Zara Griswold, Surrogacy was the way: Twenty intended moms relate their
story (2006): In this book, the narrator talks about surrogacy. The writer said
that surrogacy was underway: twenty desired mothers describe their tales, in
which he describes the twenty genuine stories of ladies having children
through surrogacy.

Surrogacy is a technique by which intended ladies have their own kids. The
intended partners must know about the positives and downsides of the surrogacy.
Surrogacy is a happiness which offers personal satisfaction to the intended spouse
and they too enjoy parenthood by acquiring their biological kid through
surrogacy. In this, several intended moms share their experiences of loving
parenting. Surrogacy becomes an option for pairs who are having wish to relish
children.

Outlines of Chapters-

Chapter I deal with introductory part of dissertation including background,

hypothesis, objective, methodology and literature review.

Chapter II deals with meaning definition and development of surrogacy law

in India.

Chapter III includes Technological and biological consequences of

surrogacy. This also includes Procreation rights of women and medical care.

Chapter IV explains Implication of Surrogacy on surrogate mother’s

economic status, also with physical and mental health complexities.

Chapter V deals with status of commercialization of surrogacy in India.

8|Page
Chapter VI ends with Conclusion and Suggestion.

CHAPTER- II
DEFINITION, MEANING AND DEVELOPMENT

9|Page
1. Meaning:
Surrogacy is a significant treatment to aid human multiplication for the individuals who
can't or choose not, to expand in the ordinary approach. Surrogacy, considered between
the most of the new regeneration headways, is an approach by which a female agrees to
be pregnant by assisted start, carries the subsequent kid, and surrenders every single
parental right of the offspring throughout birthing. This method for Efficiency seems like
an asylum to those wedded ladies who are unable to understand in light of numerous
physical, inherent and regenerative grounds13

A woman so often will be unsuitable to transmit on her own genetic offspring. For
example, a woman might be not fit to ovulate or transmit on a pregnancy, in case she has
shed her mid section and ovaries in view on detrimental maturation. In addition, a lady
may more frequently than not ovulate yet unable to pass on a pregnancy as a result of
hypertension or dangerous skin diseases.

By employing a surrogate, such ladies may notwithstanding rear a kid that is their
accessory's common youngster. Further, a mother who can't retain the considered child
due to a past filled up with unrestrained early delivery may demand her companion to go
in for this purpose to realize her desire of having a distinctive adolescent14

In like manner ladies facing dangerous contaminations like renal illnesses or diverse
sclerosis may likewise select this strategy15

In similar manner, in this business and materialistic globe it isn't extraordinary that
examples have been portrayed in which figure conscious ladies have selected this method
with the craving of keeping up their grandness and hence have empowered another lady
to deal with a child for them. Profession may in this manner be linked to as a justification
requesting the mate to consent for a surrogacy.

It is for the majority of part depicted as the procedure whereby certain concurrences with
a lady (known as the surrogate) to beget a baby child for them, move on it to term, and
subsequently that surrender to the spouses all her parental rights

The term surrogate gets it’s starting phase from a Latin word 'surrogates’, who denotes a
replacement, that is, a person designated to function in the position of another. Along
with this, a surrogate is a lady who passes on an infant to assist another woman, either
through her own ovum or by injecting in her uterus of a treated egg. Dim's Law Word
reference characterizes surrogacy as a contract whereby a woman accepts to be
deceptively inseminated with the ova of another woman's.
13
Lisa L Behm," Legal, moral and international perspective on surrogate motherhood: The call for a
uniform regulatoryscheme in the united states", De paul J of health care L 557 (spring 1999).
14
ibid
15
Siddhartha charyalu, "Surrogacy legal implication", 3 NCLJ 60,(1998), at p.61

10 | P a g e
She agrees to beget, pass on the offspring on the terms of the contract and following the
delivery, dispense out all of her parental responsibilities to the contracted father and his
wife. This concept, in any event, indicates simply to one of the sorts of surrogacy
designs, particularly, manual semen infusion surrogacy (usually called standard
surrogacy)

The Reference guide Britannica describes surrogate motherhood' as the procedure in

which a lady births an infant for a spouse who are unsuited to generate offspring in the
run of the mill method.

Warnock Commission Report characterizes surrogacy, as a method wherein one woman

beget an embryo for another with the intention that the baby child will be handed up after
delivery.

2. Definition-
The black’s legal dictionary describes the expression Surrogacy as “the procedure of
bearing and delivering an offspring for another individual16. The word surrogate mother is
characterized as “a woman who bears out the gestational function and delivers a child for
someone else; particularly a woman who consents to provide her womb to carry an
embryo across the pregnancy, usually on behalf of a sterile couple, and who abandons
any parental titles she might have upon the delivery of a child17.

The expression surrogate agreement is defined as “a contract between the parties availing
of ART and the surrogate mother” u/s 2(cc), ART bill, 2010. In layman's terms surrogacy
agreement means “an exhaustive document that lays foundation for governing the
relationship between the prospective parents and the surrogate including rights,
liability, obligations, duty, responsibilities, details about the requirement for surrogacy,
objective and circumstance of both parties, a description of the agreement, compensation,
and payment schedule between the surrogate and the prospective parents18.

Surrogacy is the procedure of in-vitro fertilization and implantation of embryo into the
uterus of a different woman (surrogate) throughout delivery. History is replete with
stories of such actions and many faiths and civilizations upholding surrogate mothers
with praise for their noble contributions of humanity. Modern surrogacy, however, gained
reference only as early as late 1970’s when legal professional Noel Keane, arranged the
first recognized legal agreement between a couple19.
16
Surrogacy, BLACK’S LAW DICTIONARY 1674 (10th ed.2009).
17
Pregnancy Birth and Baby, https://www.pregnancybirthbaby.org.au/surrogacy. (last visit 30.07.2023)
18
Sonali Kusum, Legal Glitches Facing Surrogacy Agreement in India (Aug. 8 2019 8:00PM)
http://docs.manupatra.in/newsline/articles/Upload/CFC0FA22-6E4C-456D-A920-D069C37A118F.2-b
civil.pdf
19
4 Santosh A. Shah, the Surrogacy Bill 2016 a Boon or Bane? (Aug. 7, 2019, 9:30PM)
http://www.livelaw.in/surrogacy-bill-2016-boonbane/

11 | P a g e
2.2 TREND OF SURROGACY:

It’s her egg and his sperm, and I am merely the oven, it's absolutely their bun

- by phoebe buffay

a character on the popular American sictom friends as she explained the process of
becoming a surrogate in a speech in 1998. With this surrogacy has become a popular as a
regular and trendy solution for establishing a family.

Significant developments in the surrogacy sector have been reflected in shifting social
views, improvements in medical technology, and shifting legal environments. Here are
some major developments in the surrogacy industry:

i. Surrogacy is becoming a growing trend as infertility rates continue to grow

throughout the world. The rising acceptance of non-traditional families and
cultural attitudinal changes have also led to surrogacy's rise in popularity.
Many people, especially those from the LGBT community and those who are
having infertility problems, are choosing surrogacy as a method of parenting20.
ii. Emerging Destinations: Due to ethical and legal issues, traditional surrogacy
locations like India and Thailand have seen a decline in business. These
locations are now being replaced by emerging locations like Ukraine, Georgia,
and Greece. These nations provide more benevolent laws and more
inexpensive surrogacy charges21.
iii. Global Surrogacy: Due to differences in surrogacy laws throughout different
countries, many intended parents seek surrogacy agreements in countries with
more benevolent legal systems. The increase in international surrogacy serves
as a reminder of the significance of cross-border factors and laws in surrogacy
practices22.
iv. Technological Developments: The landscape of surrogacy has been
significantly shaped by assisted reproductive technologies (ART)
developments. Surrogacy has become more widely available and effective
because of the adoption of cutting-edge procedures like in vitro fertilisation
(IVF) and in vitro fertilisation with intracytoplasmic sperm injection (IVF
with ICSI)23.

20
Business wire, Global Surrogacy Market Report 2023: Sector is Expected to Reach $302.3 Billion by
2031 at a CAGR of 6.8% - ResearchAndMarkets.com,
https://www.businesswire.com/news/home/20230608005422/en/Global-Surrogacy-Market-Report-2023-
Sector-is-Expected-to-Reach-302.3-Billion-by-2031-at-a-CAGR-of-6.8---ResearchAndMarkets.com.
21
Ibid
22
Ibid
23
IMARC, Surrogacy Market: Global Industry Trends, Share, Size, Growth, Opportunity and Forecast
2023-2028, Report ID: SR112023A5298, https://www.imarcgroup.com/surrogacy-market( last visited
29.06.2023)

12 | P a g e
 v. Development of the Healthcare Sector: The surrogacy market has benefited
from expanding the healthcare sector. More healthcare centres and fertility
clinics have increased the availability of treatments for infertility and
surrogacy24.
vi. Despite the surrogacy market's expansion, there are still ethical and legal
difficulties. The industry's growth is nevertheless influenced by problems
including surrogate mother exploitation, high expenses, and the need for clear
rules25.
vii. Segmentation of the market by region: Market segments for surrogacy include
type, technology, end users (including hospitals and IVF clinics), and
geography. There are distinct market dynamics and trends in each area,
including North America, Europe, Asia Pacific, Latin America, the Middle
East, and Africa26.

The surrogacy sector has seen significant expansion, which may be attributed to a variety
of causes including rising infertility rates, changing societal attitudes, and improvements
in medical technology. Even while surrogacy offers many people and couples a feasible
route to motherhood, there are still geographical, societal, and ethical issues to be taken
into account.

2.3 SURROGACY METHODS

According to the Apex Court's decision in Baby Manji Yamda v. Union of India &
Others

Surrogacy may be categorized as -:

1) Traditional surrogacy, or the direct method, is a situation in which the surrogate

is carrying a biological child. The child is developed to transfer the child and to be
raised by others, generally by the biological father and his spouse or companion,
either male or female. The newborn may be conceived at home using newly

24
Ibid
25
Ibid
26
Ibid

13 | P a g e
 produced or stored sperm or implanted in a fertility clinic via intrauterine
insemination (IUI) or intracervical insemination (ICI).

2) Gestational surrogacy, which is sometimes referred to as the host technique, is a

situation in which the surrogate evolves pregnant using embryo transfer with an
infant of another. She may have contracted to transfer after delivery to the infant's
biological parents or to a parent who contracted for surrogacy by the method
of donated eggs, sperm, or an embryo), depending on how the child was
conceived. Thus, surrogates may be called as gestational carriers.

3) Altruistic surrogacy is an instance in which the surrogate obtains no monetary

compensation for the procreation of the child (although typically, the
contracting parents cover all costs connected with the pregnancy and delivery,
such as medical bills, maternity wears, and other related costs).

4) Commercial surrogacy is a contract in which a gestational carrier is compensated

for delivering an offspring and bearing an embryo for nine months in her uterus.
This practice is often used by affluent infertile partners who are capable of
covering the costs involved or by individuals who preserve and incur debt to
become parents. Several nations, particularly India, where there is a strong
medical infrastructure, a large level of foreign demand, and easy access to subpar
surrogates, have legalized this medical practice. Wombs for hire, outsourced
pregnancies, and "baby farms" are some of the emotionally intense and possibly
unpleasant words used to describe commercial surrogacy.

Opponents of traditional surrogacy raise concerns about the genetic link between
the surrogate and the baby she carries. They argue that gestational surrogates may
find it difficult to hand over a child to whom they are genetically related. On the
other hand, proponents of traditional surrogacy emphasize that the genetic
connection is not as crucial as the emotional bond between the intended parents
and the child. Those who opt for traditional surrogacy often compare it to egg
donation, highlighting that while there is a genetic link, the emotional connection
prevails. Legal implications of traditional surrogacy are also a concern for some,
as the surrogate's genetic relationship with the child may necessitate a stepparent
adoption process by the intended mother.

In the past, traditional surrogacy was the primary method for using a surrogate
mother. However, technological advancements have introduced gestational
surrogacy, which is the more prevalent approach today. Gestational surrogacy
involves transferring an embryo created from the intended parents' or donors'

14 | P a g e
gametes into the surrogate's uterus. This method severs the genetic connection
between the surrogate and the child she carries.

The success rates of traditional surrogacy can be influenced by factors such as the
surrogate's fertility and her ability to conceive through artificial insemination.
While traditional surrogacy may be less expensive and less invasive than in vitro
fertilization (IVF), it is essential to consider the emotional and legal complexities
associated with genetic ties between the surrogate and the child.

It's worth noting that the ethical and legal landscape of surrogacy varies globally.
In some countries, surrogacy is prohibited, while in others, it is regulated or
allowed under certain conditions. Surrogacy raises important considerations
regarding the rights and well-being of all parties involved, including the child,
surrogate, and intended parents.

In summary, the debate between traditional and gestational surrogacy revolves

around the significance of genetic connection versus emotional bond. While
traditional surrogacy was once the primary method, gestational surrogacy has
gained popularity due to advancements in assisted reproductive technologies. The
decision between the two methods involves considering medical, emotional, and
legal aspects to ensure the best outcome for all parties involved.

To enhance the likelihood of twins or to optimize ovulation timing, some

surrogates opt to take mild fertility medications. In contrast, gestational surrogacy
is a more unpredictable and costly procedure. However, the attraction of
gestational surrogacy for an increasing number of intended parents lies in the fact
that this approach offers something traditional surrogacy cannot: the opportunity
to raise a child who is genetically their own.

In gestational surrogacy, the surrogate can carry embryos created from the eggs of
the intended mother and the sperm of the intended father. Eggs are retrieved from
the intended mother and fertilized with the intended father's sperm. These
embryos are then transferred into the surrogate's uterus using in vitro fertilization
(IVF). In cases where the intended parents are unable to provide the necessary
sperm and/or eggs, a donor may be utilized.

Although this process may appear relatively straightforward, it involves

significant medical intervention and weeks of preparation. In the United States,
surrogates typically receive daily injections over a span of weeks. The process
begins by suppressing the surrogate's natural ovulatory cycle using birth control
pills and hormone shots. Estrogen shots follow to build up the uterine lining.
15 | P a g e
Once impregnated, the surrogate requires daily progesterone injections until her
body recognizes the pregnancy and can sustain it independently. However, these
medications often come with notable side effects that the surrogate must endure,
including mood swings, headaches, hot flashes, and fatigue.

The process of gestational surrogacy necessitates careful coordination, including

the administration of medications to regulate the surrogate's cycle and prepare her
uterus for embryo transfer. Common medications used in gestational surrogacy
include:

Doxycycline: An antibiotic used to treat low-grade pelvic infections and ensure

the surrogate's health before the surrogacy cycle.

Lupron: A medication that temporarily suppresses the ovaries, preventing

premature ovulation and allowing better cycle synchronization with the intended
mother or egg donor.

Estrogen: Administered in various forms (pills, patches, injections) to thicken the

uterine lining and support early pregnancy.

Progesterone: Signals the uterus to prepare for embryo implantation and is taken
before and during early pregnancy to maintain a stable pregnancy.

Antibiotics: Prescribed to clear any infections before embryo transfer.

Medrol: A low-dose steroid sometimes used to enhance the chances of successful

embryo transfer.

Aspirin: May be prescribed to increase the likelihood of a successful transfer.

Prenatal Vitamins: Taken to ensure the surrogate's health before and after embryo
transfer.

Each surrogate's medication regimen is tailored to her unique circumstances and

closely monitored by medical professionals. The timing and dosages of these
medications play a crucial role in the success of the surrogacy process.

In conclusion, gestational surrogacy involves a carefully orchestrated medical

process that includes the administration of various medications to synchronize
cycles, prepare the uterus, and support embryo implantation. The medications
used can vary based on individual needs, and while they are essential for a
16 | P a g e
 successful gestational surrogacy journey, they may come with side effects that the
surrogate must manage.

Gestational surrogacy is a complex and costly process that involves significant

medical and ethical considerations. The use of fertility drugs and medical
interventions is common in gestational surrogacy to optimize the chances of
success. These interventions aim to recreate the natural hormonal processes that
facilitate pregnancy. For instance, medications like Doxycycline may be
prescribed to address possible low-grade pelvic infections and ensure the
surrogate's health before the surrogacy cycle27. Lupron is often used to
synchronize the surrogate's cycle with that of the intended mother or egg donor,
temporarily "shutting down" the ovaries to prevent premature ovulation 28.
Estrogen supplements are administered to thicken the uterine lining and support
early pregnancy. Progesterone is introduced to prepare the uterus for embryo
implantation and to maintain a stable pregnancy29.

The process involves various steps, including taking birth control pills, Lupron
injections, and estrogen supplementation, before starting progesterone to support
pregnancy30. The surrogate's body is carefully prepared for embryo transfer, and
medications may be administered through different methods such as oral tablets,
injections, patches, or suppositories31. These medications help optimize the
conditions for a successful pregnancy, but they can also come with potential side
effects, ranging from headaches and fatigue to mood swings and breast
tenderness32.

Despite the medical advances and ethical considerations, gestational surrogacy

has raised complex moral and social issues. The practice has been criticized for
potentially commoditizing the child and the surrogate mother's body, as well as
for exploiting surrogates, especially in economically disadvantaged regions 33. The
involvement of financial transactions and the intricate relationship between
intended parents, surrogates, and the child born through this process has led to

27
Mehpara Haq, Ethical and Moral Issues Concerning Surrogacy, :
https://rmlnlulawreview.com/2015/07/31/ethical-and-moral-issues-concerning-surrogacy/
(last visited 06.07.2023)
28
ibid
29
Ibid
30
Ibid
31
J Hum Reprod Sci, “The Miracle Mothers and Marvelous Babies”: Psychosocial Aspects of Surrogacy –
A Narrative Review, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7394089/ (last visited 06.07.2023)

32
Ibid
33
Ibid

17 | P a g e
 discussions about human dignity, autonomy, and the moral implications of
commercial surrogacy34.

Furthermore, the availability of surrogacy services in different countries has led

some intended parents to seek surrogates in developing nations where costs may
be lower and regulations may be less strict. This has raised concerns about
potential exploitation and the ethical implications of these arrangements35.

In summary, gestational surrogacy involves a complex interplay of medical

procedures, ethical considerations, and social implications. While it offers
intended parents the possibility of a genetic connection to their child, it also raises
significant moral questions and has led to debates about the commoditization of
reproduction and the potential exploitation of surrogates.

3. THE INDIAN CONTACT ACT, 1872-

In the context of surrogacy in India, the Indian Contract Act of 1872 plays a significant
role in governing the agreements between surrogate mothers and intended parents. Since
there is currently no specific legislation regulating surrogacy in India, surrogacy
arrangements are treated as contracts that are subject to the provisions of the Indian
Contract Act.

Under the Indian Contract Act, an agreement becomes a valid contract if it fulfills certain
criteria: it must be made by the free consent of parties who are competent to contract, it
must involve a lawful consideration, and it must have a lawful object. Unless expressly
declared void, agreements meeting these conditions are enforceable as contracts in a civil
court. This means that a surrogacy agreement that meets these criteria can be the subject
of a civil suit to resolve any disputes that may arise regarding the agreement, and the
court can grant relief as deemed appropriate.

For a surrogacy agreement to be valid under the Indian Contract Act, both the surrogate
mother and the intended parents must meet certain requirements. They must have attained
the age of majority according to the law applicable to them and must be of sound mind.
Additionally, the consent of all parties involved must be freely given. If consent is
obtained through coercion or any form of undue influence, the contract may be deemed
voidable, providing the party whose consent was not freely given the option to rescind
the contract.

The consideration for the surrogacy agreement, which is an essential element of a valid
contract, can be either pecuniary or non-pecuniary. It can include a benefit to the intended
34
Surrogate Parenting | Internet Encyclopedia of Philosophy, https://iep.utm.edu/surr-par/
(last visited 06.07.2023)
35
Ibid

18 | P a g e
parents, such as being blessed with a child, or a detriment to the surrogate mother, such
as carrying the pregnancy to term. This consideration forms the basis for the
enforceability of the contract.

It's important to note that the lack of legislative clarity regarding surrogacy contracts in
India has led to various legal and ethical debates. The issue of consent, particularly in
commercial surrogacy arrangements, has been a point of contention. Poor and vulnerable
women who enter into surrogacy agreements may do so due to economic inducements or
pressure from their relatives. The courts evaluate the free and unvitiated nature of
consent, especially in cases where there may be a presumption of inequality of bargaining
power or undue influence.

Thus, while India lacks specific legislation for regulating surrogacy, the Indian Contract
Act of 1872 governs surrogacy agreements by establishing the criteria for a valid
contract. Consent, consideration, and the lawful object are crucial aspects that determine
the enforceability of surrogacy contracts under this Act. However, the legal landscape
surrounding surrogacy in India remains complex, and debates continue regarding the
ethical implications and protections for surrogate mothers and children born through
surrogacy arrangements.

4. HINDU ADOPTION AND MAINTENANCE ACT, 1956

Surrogacy in India, when examined in the light of the Hindu Adoptions and Maintenance
Act, 1956, reveals certain complexities and implications. The Hindu Adoptions and
Maintenance Act, 1956, is the main legislation governing adoption in India, specifically
for Hindus. While it does not directly address surrogacy, certain provisions of the Act
have relevance to surrogacy contracts.

Under the Act, adoption is required to adhere to specific provisions outlined in the
legislation. Any adoption that does not conform to these provisions is deemed void. For
instance, Section 5 of the Act mandates that all adoptions must comply with its
provisions. Sections 7 and 8 of the Act address the capacity of Hindu males and females,
respectively, to adopt a child. These sections include requirements such as attaining the
age of majority, being of sound mind, and obtaining consent from a spouse if applicable.

Section 9 of the Act emphasizes the necessity of obtaining the consent of the natural
mother before giving a child up for adoption. This requirement is crucial because, upon
adoption, the natural parents' rights over the child are permanently severed. Moreover,
Section 17 of the Act prohibits certain payments associated with the adoption process,
with violators potentially facing penalties.

The compatibility of surrogacy with the Hindu Adoptions and Maintenance Act is a
subject of debate. Since there is no separate law governing surrogacy in India, the legal

19 | P a g e
landscape becomes intricate. In surrogacy arrangements, the biological father's wife
becomes the child's legal mother. However, this contradicts the Act's provision that only
a male member of the family can adopt, except under specific circumstances.

Section 9 of the Act raises further questions when applied to surrogacy. The consent of
the natural mother (in the case of surrogacy, the surrogate mother) is crucial. This consent
should ideally be informed and encompass an understanding of the complexities
involved. This is particularly relevant considering the emotional bond that can develop
between the surrogate mother and the fetus during pregnancy.

Another contentious point is the prohibition of payments in adoption, as outlined in

Section 17 of the Act. Surrogacy agreements typically involve financial compensation to
the surrogate mother, which may conflict with this provision.

It's worth noting that the Hindu Adoption and Maintenance Act is specific to Hindus and
does not cover individuals from other religions. Moreover, the Act focuses on traditional
adoption practices, and the concept of surrogacy may not have been anticipated when the
Act was drafted.

In conclusion, the Hindu Adoptions and Maintenance Act, 1956, which governs adoption
in India, present challenges and contradictions when applied to surrogacy arrangements.
The Act's provisions, such as consent, payments, and the capacity of adopting parties,
raise questions about the compatibility of surrogacy within its framework. The absence of
a secular law for adoption in India further complicates the legal status of surrogacy,
especially for non-Hindus.

5. DEVELOPMENT-
5.1 Indian Scripture’s Evidence on Surrogacy-

Religious perspectives concerning fertility may be crucial to certain people and couples
undergoing reproductive treatments. To have the greatest knowledge of their patients,
fertility specialists must be aware of these mindsets.

Hindu culture has long placed significant value on children and the continuation of the
family unit. The Indian mythology is packed with tales of couples who survived
infertility in the past. Infertile couples confront inherent challenges to completing their
societal commitments, and Hindu religion has suggested methods to overcome these
impediments.

5.2 THE NOTION OF DEBT TO ANCESTORS

In the renowned Hindu epic Mahabharata (composed 2000 years ago), sage Agastya
discusses the reason why Hindus are so fascinated with offspring. It puts our attention on

20 | P a g e
a fundamental religious yearning for a child, in along with social ones like 'someone to
take good care of me in my old years'.

In Dharma, every person must have one kid who must conduct Shraadha (giving
oblations to ancestors). This youngster is known as Dharma Putra. Ancestors sustain
themselves in their habitation - Pitr loka - with Shraadha offerings. Without a Shraadha
gift by Dharma Putra, forefathers grieve hell, hunger and thirst on Pitr Loka36.

5.3 DHARMA CONCEPT

Dharma is primarily a responsibility that must be done for the betterment of self and
society. Inability to do so leads to societal instability and cosmic disaster. Producing a kid
is one’s earthly responsibility and necessary for sustaining the stability of society. One
may only forsake the world when they have accomplished all worldly tasks37.

5.4 DONATED SPERM

When a man failed to have a kid with his wife, he got the advantage of the doubt and
permitted to marry yet again, and again. If despite this, he wasn't able to produce a kid, it
verified his sterility. The Scriptures propose that another man (of the same bloodline) be
asked to cohabit with the women (with the approval of the husband). This technique is
called as niyoga38.

In the Mahabharata, after king Vichitravirya dies, his mother requests the scholar Vyasa
to create offspring with her bereaved daughters-in-law. Offspring thus generated were
dubbed offspring of Vichitravirya (the legal father), not the offspring of Vyasa (the real
father). The donor is not authorized to provide his name to the child conceived from his
transplanted sperm. The children produced from such an act would be offspring of the
legal spouse and maintain rights to inherit from their legitimate father39.

King Pandu wasn't able to have sexual intercourse with his spouses. Since he could not
produce offspring for succession, he relinquished the kingdom. His elder wife Kunti
disclosed that previously have blessed by Rishi Durvasha and got boon of mantras
through which she can summon demi-gods in order to have offspring who would be

36
M. Nagasai, LAW OF SURROGACY, SUPREMO AMICUS VOLUME 13 ISSN 2456-9704
37
(Manusmriti 3:37)
38
(Bühler, George,1886).

39
sinha, M. (2020, February 29). Surrogacy and Artificial Insemination in Ancient India: An Analysis.
Surrogacy and Artificial Insemination in Ancient India: An Analysis.
https://www.myindiamyglory.com/2020/02/29/surrogacy-and-artificial-insemination-in-ancient-india-an-
analysis/ (last visit 30.07.2023

21 | P a g e
recognized as the offspring of Pandu. Thus arose the five warrior Pandavas of the
Mahabharata whose work were praised to be the way of righteousness40.

In the Kathasaritsagar, a compilation of tales composed in the 11th century A.D., there is
a narrative of a monarch who makes a gift of balls of rice to his forefathers. As he is
ready to toss his sacrifice in the river, three hands reach up - one of a peasant, one of a
priest and a third of a warrior. The prophecies were revealed,’ The farmer is the guy who
got married to your mother, the priest is the one who got your mother impregnate and the
warrior is the man who took care of you.’ The monarch is urged to hand over the rice ball
to the peasant since the scriptures designate him as the genuine father41.

Through many years, religious law permitted for donor insemination when agreed by the
spouse and as today, the family name would persist and this would be acceptable by
society.

5.5 SURROGACY AND THE HINDU MINDSET

The surrogate mother

In the Bhagavata Purana, there is a narrative that indicates the use of surrogate
motherhood. King Kamsa imprisoned his sister Devaki and her husband Vasudeva
because oracles had warned him that her kid would be his murderer. He slaughtered six
children of Devaki and Vasudeva. The Gods interrupted and had her move the seventh
embryo from the womb of Devaki to the uterus of Rohini (Vasudeva’s second wife). An
infant conceived in one womb was nurtured in and delivered via another womb42.

Hindu mythology has various events where sexual encounters serve as a non-sexual and
frequently a religious purpose.

Illustration

From the various tales stated in the Hindu writings, it is obvious that the scriptures reflect
the moral and ethical challenges confronted by the fast progress of infertility technology.
There is no question that having a child is at the forefront of a Hindu couple’s
responsibility and the philosophies have supplied some evidence that several approaches
may be taken to aid the couple to conceive. Though ART was not recognized in ancient
times, instances are presented proving that ancient Sages recognized the plight of infertile
couples and approved therapies beyond natural ways of conception.

5.6 BIBILIC EVIDENCE OF SURROGACY-

40
chandrabali Tripathi and Chandra Mauli Mani, The evolution of ideas of women hood in Indian society
41
(Panzer, 1924),
42
Manoshi Sinha, The eight Avatar

22 | P a g e
Surrogacy is promptly becoming a mainstream technique of building a family. But the
notion of surrogacy extends back to biblical times. The book of genesis Abram’s wife
Sara could not have a child. thus, she gave her husband, her maid named Hagar, stating
“the lord has kept me from bearing children. Have intercourse, then with my maid;
maybe i shall have kids by means of her43.

5.7 RELIGION AND SURROGACY

According to an approximate estimation, there are around 4,200 faiths in

worldwide. Some of Majorly well-known religious concepts are-

Christianity in its entirety is more receptive of assisting procreation but urges a lot of
care if taking this method. Christians have voiced worry for the welfare of the surrogate's
physical as well as mental wellness following surrogacy and for the potential
psychological state of children who were born via surrogacy. They also desire surrogacy
to take place using the legally wed couple's egg and gamete that would be rearing the kid.

Judaism considers surrogacy as a tool to eliminate the anguish and grief that goes
alongside infertility. So, long as nobody gets injured in the process, everything is
acceptable. However, some extremely vociferous Orthodox Rabbi's has strongly opposed
surrogacy, alleging it verges on the slavery of women for use of their uterus. There are
also reservations about the expense of surrogacy, with assertions that surrogacy simply
enables the affluent to carry along their DNA. The Jewish faith likewise wants a man and
woman to utilise their respective egg and sperm and nurture the offspring born from
them.

Islam is in parted ways, some consider it as adultery since the surrogate mother bearing a
fertilized embryo of someone other than her husband. The child born thereafter would be
declared illegitimate.

Others regard it as a method to maintain the existence of humans yet another group
believes it ought to be done amongst a husband and wife.

Buddhism absolutely allows surrogacy. Buddhism represents one of the few faiths that
don’t declare childbearing a moral imperative. Surrogacies aren’t regarded as sinful
among Buddhists.

43
Religion & Surrogacy — Montana Surrogacy. (2018, March 6). Montana Surrogacy.
https://www.montanasurro.com/blog/2018/2/28/religion-surrogacy

23 | P a g e
Hinduism accepts surrogacy. Children are highly essential in Hindu households hence
they are often receptive of reproductive treatments and surrogacy to enlarge families.

Some surrogates and indigenous peoples wish to be assigned with persons of the same
faith or comparable religious views. An example being: a Jewish couple requiring a non-
Jewish, surrogate-mother to eat Kosher throughout her pregnancy. The surrogate could
believe this is utterly absurd since she never grew up eating kosher. The Jewish
prospective parents could assume it's not a huge concern since they are accustomed to
this manner of life. If everything is all discussed upfront, then these misconceptions may
be avoided.

5.8 LEGISLATIVE JOURNEY-

The state of being unable to beget a child is called infertility, which is seen as significant
problem since kinship and family relationships are founded on offspring44. 228th report of
law commission stressed the relevance of child in following lines “the parents build the
offspring biologically, whilst the child creates the parents socially” 45. Infertility may
cause grief and significant suffering to the childless partner. ART are the alternatives for
the childless couple to produce their own children.

The expression ‘Surrogacy’ has derived from the Latin phrase ‘Surrogatus’ which
implies that is a person assigned to act in the position of another. Commonly the phrase
‘Surrogacy’ referred to a medical contract when a woman consented to become pregnant
and bear an offspring for another married couple. It enables childless impotent couple to
produce their own hereditary baby. A lot of notable issues were raised against
commercial surrogacy46.

India’s Surrogacy industry spike began in 2004 with a delivery of twin baby girl by
her grandmother Surrogacy as a healthcare arrangement has evolved throughout the
years, thereafter it became a rising centre of fertility business as approximately 7000-
80000 centers operated in India and the majority of them were considered illegal47.

In Surrogacy normally IVF-ET technology is applied in the uterus of a different woman

i.e. surrogate mother. ICMR Standards Surrogacy is stated as “Surrogacy is a contract in
which a woman volunteers to bear an embryo that is in no way related to her and her
husband, with the objective to bear it until delivery and handed the newborn to
their genetic parents for whomever she is serving as a surrogate” 48. Surrogacy has gained
44
228th report of Law commission of India, government of India , August 2009, p.9
45
Supra 13
46
Namrata Yadav, INTERNATIONAL JOURNAL OF CREATIVE RESEARCH THOUGHTS,
Legislative Efforts for Surrogacy in India- A Journey from Liberal Practices to Robust law, 2023 IJCRT |
Volume 11, Issue 6 June 2023 | ISSN: 2320-2882,
47
Supra 15
48
Clause 1.2.33 ICMR Guidelines 2005 p.10

24 | P a g e
the attraction in across the world . Surrogacy in commercial form was legalised and
performed in India when there was no provision and no proper legislation to
regulate Surrogacy49. The usual cost ranged from $25,000 to $30,000 which was
approximately 1/3rd of the amount paid in developed countries which include the United
States of America. Till 2008 ART assistance fast became an Industry about 25000 cr. 50
India emerged the primary focus of Surrogacy whereas Anand, a little region of Gujarat,
got the label known as the ‘cradle of the planet. The rising popularity of ART results in
sprouting of ART clinics in India. By 2011 around 1000 clinics were operational in India
and produced 25000 newborns a year.51 Commercial Surrogacy were still controversial
and is unlawful in some countries. But in India, surrogacy has grown after the Supreme
Court permitted the practice in 2002. It is said that analysis by the CII projected the
practice will yield US$2.3 billion52.

Surrogacy has proven to be a contentious topic from its commencement. The supporters
of Surrogacy considered that Surrogacy represents a blessing for childless couple and it is
a generous act of Surrogate Mother to assist the childless parent. On the contrary
Surrogacy criticized by many scholars, researchers and academics on allegations of
physical abuse, mental abuse of the surrogate mother, exploitation and commercialization
of women’s body, commercialization of children sex selection, possibilities for abuse of
technology, trends for celebrities etc. IVF has evolved into a billion dollar enterprise,
although ethical control is vital to minimize unethical operations. In India, moral issues
and legal concerns surfaced in the end of the nineties leading to the demand for
legislation during 2002. The Law of Surrogacy was designed to solve these challenges.

The chronological overview of the legislative attempts is as follows:-

I. ICMR Guidelines, 2005

II. The ART (Regulation) Bill 2008

III. 228th Report of Law Commission, 2009

IV. The ART (Regulation) Bill 2010

V. Home Ministry Regulation on Surrogacy to FRRO – VISA, January 2013

49
Sonali Kusum, Overview of Surrogacy laws in India, Indian Bar Review, Journal Bar Council of India,
March Issue 1, 2014, p.1
50
228th report
51
Supra 18
52
Divya Gupta, Inside India’s Surrogacy industry, Guardian weekly, Tuesday 6 December 2011

25 | P a g e
VI. The ART (Regulation) Bill 2013

VII. The ART (Regulation) Bill 2014.

VIII. The Surrogacy (Regulation) Bill 2016

IX. The Surrogacy (Regulation) Bill 2018

X. The Surrogacy (Regulation) Act 2021

i. ICMR Guidelines 2005

The Ministry of Health and Family Welfare produced the first outline of rules for the
certification, regulation and monitoring of ART service provider in India in 2002, which
were opposed in multiple areas of India in 2005. The policy of the ICMR
keep different complications such as -

 To Accredit ART Clinics,

 To provide license to ART clinics,
 Maintain a nationwide registry,
 Supervise activities,
 Take corrective action,
 Make IVF available to EWS,
 Set up rules for surplus embryos,

Support educational programs and training to the workers and encourage research in the
sphere of ART. These Guidelines specified the rules that shall be opted by ART centers,
i.e., prohibited undesired activities like gender selection, incorporated the function of a
mediator in surrogacy contracts, and covered various concerns linked with surrogacy.
One of the terms was that the surrogate shall be informed that she would relinquish her
rights upon the offspring and hand over the delivered offspring to the interested parents
for whom she was assigned as surrogate. An additional condition mandates that the
newborn birth certificate shall contain the name of the genetic parents only. The rules
specify that sperm donors ages shall vary from 21-45, and for ovum donors the age shall
vary from 18-35 years53. The number of eggs or embryos shall not exceed more
than three i.e. implanted in a surrogate mother womb throughout treatment cycle,
nevertheless of the process employed54. A relative or acquaintance of either spouse shall
not contribute sperm. The interested married partner has right to know the donor's
relevant information. The regulation extends to the responsibility of Semen Bank
to ensuring that the couple is informed of the donor's specification and couple shall also

53
Supra 15
54
clause 3.5.12 of ICMR Guidelines 2005

26 | P a g e
safeguards the donor's specification55. Trans-species fertilization is forbidden56. Mixing of
semen of two person not authorized under any situation 57. However, it does not ban other
countries to access surrogacy service across India.

Clause 3.10 of the ICMR Guidelines, 2005 specifies that a child generated through
surrogacy shall be accepted trough adoption if it is not biologically connected to its
parents. Reimbursement to the surrogate mother must cover all costs associated to
pregnancy, and ART clinics. With Rule 3.12 ICMR guidelines, aimed at regulate the
freedoms evolved out of Surrogacy. It was established that an offspring born with the
assistance of ART would be acknowledged to be the spouses' legitimate child. It specifies
that, in the instance of a divorce occurring during pregnancy, the legislation of their
nation would be relevant to a normal conception shall prevail to preserve the best
interests of the child.

Sub clause 4 is a significant provision which set no constraints on single unmarried

women from becoming a mother.

ICMR were a forerunner to the ART Bills. The difficulty with these guidelines was that
they have only recommendations power and not legally mandatory to the parties. The
centers for ART were extensively engaging in Surrogacy arrangements.
They utilize to organize the Surrogate mother's for their overseas clients.

ii. The Assisted Reproductive Technology (Regulation) Bill 2008

It was the initial bill developed to provide a public framework to the direction and
monitoring of ART developments and complications related therewith. The ICMR
created this law. There were 9 chapters and 50 provisions in the proposed bill. The
definitions of essential concepts are supplied in Chapter I.

The conception and implementation of a "National Advisory Board for ART," "State
Boards for ART," and "Registration Authorities" for registering ART clinics are formed
in Chapter II. The registration mechanism for ART clinics was created under Chapter III.
The centres for ART are obligated to fulfill different responsibilities under Chapter IV.
Making contracting couples or individuals, as the case may be, cognizant of the rights of
children born via ART.

Patients who are biologically capable to deliver a baby are also pushed to evaluate
surrogacy as a possible means of conceiving. Section 20(14) specifies that no
ART technique may be performed on a woman under 21 years to eradicate the practice of
making young women surrogate mothers.

55
clause 3.5.13 of ICMR Guidelines 2005
56
clause 3.5.16 of ICMR Guidelines 2005
57
clause 3.5.18 of ICMR Guidelines 2005

27 | P a g e
Breaking this requirement would be a transgression of the law. It barred ART centers
from giving commissioning parents or any individual with predetermined sex
possibilities; any infringement of this prohibition constituted a punitive offence58.

iii. 228th Report of Law Commission of India59

A seminar on the topic “Surrogacy – Bane or Boon” organized at the India International
Centre, 3rd Feb 2009. The discussion was concentrated on The ART (Regulation) Bill
2008.

On the basis of abovementioned findings of seminar ‘Law Commission of India’ unveiled

its 228th report on surrogacy titled ‘Need for law to control ART Clinics as well as Rights
and Obligations of the Parties to a Surrogacy’.

Law Commission identified that The Bill 2008 was flawed. The report proposes that
contracts for surrogacy should be subject to the contract act 1872. It further states-

 what are the provides for surrogate offspring , in the event of couple’s death or
divorce,
 require life-insurance cover for the surrogate,
 recognition of the offspring as a legitimate child of the intending couples,
 contain the identification name(s) of commissioned parents only,
 protect all information regarding surrogate mom and gametes donor,
 prohibit predetermined-sex surrogacy, and
 Abortions shall govern under the Medical termination of Pregnancy Act 1971.

iv. The Assisted Reproductive technology Bill 201060

India has experienced an exponential expansion of infertility clinics in approximately 20

years previous to bill 2010. At that time, anybody may operate the infertility or ART
clinics; no permit necessary to do so.

ART clinics were not restricted to Anand in Gujarat, but New Delhi- NCR, Mumbai and
Kolkata; it was growing all across India even in minor towns like Allahabad, Meerut,
Bhopal, Gwalior, Patna and Banaras etc. for the benefit of public, it became crucial to
control the operations of ART clinics and to assure ethical practices and all related rights
either medical, social and legal rights are effectively safeguarded. The ART (Regulation)
bill 2010 was intended to solve the loopholes of ART Bill 2008.
58
Supra 15
59
Law Commission Report No. 228- Need for Legislation to Regulate Assisted Reproductive Technology
Clinics as Well as Rights and Obligations of Parties to a Surrogacy. (n.d.). latestlaws.com.
https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-228-need-
legislation-regulate-assisted-reproductive-technology-clinics-well-rights-obligations-parties-surrogacy/

60
https://ideas.repec.org/p/ess/wpaper/id7232.html(n.d.). https://ideas.repec.org/p/ess/wpaper/id7232.html

28 | P a g e
This Bill criticized by the human rights activists and other knowledgeable individuals for
two reasons, first it enabled commercial surrogacy and secondly it didn’t prevent
foreigners to enjoy commercial surrogacy in India. By enabling overseas surrogacy, India
has become leading option for foreigners to get ‘cheap and most effectively" Surrogacy
service in the globe. The commercial surrogacy has soiled the reputation of the India by
calling it as ‘Baby factory’, ‘rent a womb’,’ baby farming’, ‘cradle of the globe’ etc. and
earned the title of the global capital of surrogacy61.

This Bill mandated lower age of prospective couple, surrogates and sperm donor is
twenty one years in ART method and surrogacy and no maximum age defined for the
intended pair. This Bill neglected the physical and psychological health of Surrogate
moms by providing that a woman shall function as a surrogate approximately five
accomplished live deliveries in her life, inclusive her own children.

This statement is riddled with ambiguity since number of rounds of ART were not stated
and given the poor success rates of ART treatment, it frequently indicates several cycles
for successful results, thus presenting major hazards to the surrogate mother health62.

v. Home Ministry Guidelines 2012

On 9 July 2012, the Home Ministry wrote to Shri Amrendra Khatua, limiting the
availability of surrogacy to non-Indian married heterosexual spouses who have been
married for a minimum of two years. International couples must engage into
a notarized agreement with a surrogate's to render the surrogacy arrangement legally
binding, and departure approval from FRRO/FRO is necessary before departing from the
country.

The Home Ministry of India wrote a letter to the FRROs and Principal Secretary (Home)
of all state governments/UT concerning Medical visa granting for people with OCI/PIO
card holders.63

Home Ministry subsequently forbade foreign nationals, PIOs, OCI from negotiating
surrogacy in India, accessing India for surrogacy, or obtaining departure clearance 64. It
was an initiative of the Indian government to outlaw the illegal practice of commercial
surrogacy in the nation with immediate implications.
61
Sonali Kusum, Overview of surrogacy of laws in India, Indian Bar Review, Journal Bar Council of India,
March 2014, vol.1, p.1 https://writingsurrogacy.wordpress.com/tag/icmr-guidelines-on-surrogacy/ (last
visited 29.07.2023)
62
Aarti Dhar, Gaps in surrogacy bill, Fix ambiguities in the draft bill dealing with surrogacy before rushing
to finalise it, health activist urge the government, The Hindu,27 October 2013,p.3
https://www.thehindu.com/features/metroplus/society/gaps-in-surrogacy-bill/article5276062.eceaccessed
on22/01/2019 (last visited 29.06.2023)
63
No.25022/74/2011-F.I(Vol.III), Ministry of Home Affairs, Government of India, letter dated 19 February
2014
64
Circular no. 462, Ministry of Home Affairs, Government of India, dated 3 November 2015.

29 | P a g e
vi. The Assisted Reproductive Technology 2013

The Indian Council for Medical Research and Ministry of Health and Family Welfare
created a committee to write the ART Bill 2013. The ART Bill 2013 intends to modify
the former ART Bill 2010 with additional provisions and monitoring procedures. It
makes provision for a national legislative framework for the formation of authorities for
the administration and regulation of ART65.

The draft Bill 2013 is not accessible in the public domain & Malhotra classified it as
‘deemed confidential as part of The government's cabinet notes’ 66. Some
notable highlights of the ART Bill 2013 were donation of eggs was eliminated to a
maximum of three attempts which was previously six attempts, Woman is eligible to
serve the role of surrogate's merely up to three times with an interval of two year gap, and
allows not only heterosexual couples but also all others including single adults to take
advantage of the surrogacy services throughout India, It recommended to impose
exclusion on ART clinics on offer intended spouse/individuals pre-selection for the sex of
the infant and performing gender identifying test, and infringement of such provision
would be considered to be punishable up to five years imprisonment and fine
approximately ten lakh rupees67.

It establishes specific duties on ART clinics, Sperm Banks and intermediaries, which
weren't exist in the earlier Bills. To keep track of the surrogacy along with other ART
services this Bill constituted a new and independent body ‘National Registry’.

The importation and exportation of frozen gametes and embryos became permitted for
subject to appropriate permission of National Registry. Further The Bill 2013 involves
receiving ‘written consent’ from all parties to a surrogacy contract whereas the earlier
Bill 2010 concentrated on receiving ‘informed consent’68.

Lacuna-

The ART Bill 2013 wasn't able to fulfil or satisfy the requirements of women rights
groups, LGBT rights, human rights activists, and legal right institutions.
Some Resources organization for women and health’ believed that the Bill isn't adequate
enough to safeguard the rights of weak parties i.e. Surrogate mom and children.

65
http://ncw.nic.in/ncw-cells/legal-cell/new-bills-law-prosed/new-bills-law-propsed(last visited 29.07.2023)
66
Anil Malhotra, Ending discrimination in Surrogacy laws, The Hindu, 3 May 2014, in The law
Commission & Surrogacy: A Critical look at the 228th Report, Banerjee Sneha, Journal of India Law and
Society, Vol.6: Monsoon, p.45
67
Ibid
68
A brief overview of Indian surrogacy law (ART) Regulations Bill 2013, Legislative Comment, NLSIU
LLM Journal of Law, NIJL, July 2014 https://writingsonsurrogacy.wordpress.com/2016/10/18/a-brief-
overview-of-Indian-surrogacy-law-ART-regulations-bill-2013/ (last visited 06.07.2023)

30 | P a g e
They persuaded the Government to address ambiguities before completing it 69. The Bill
2013 neglected significant factors in a surrogacy arrangement, such as the total number of
rounds a surrogate mother may endure, the rules and regulations of third parties such as
surrogacy intermediaries, home operators, legal firms, private organizations and others.

vii. The Assisted Reproductive Bill, 2014

Bill no.61 was proposed to safeguard surrogate women and settle legal and ethical
difficulties. It also contains certain requirements to control the operating of ART clinics
to guarantee that services provided are ethical, and the healthcare, social and legal rights
of all relevant parties in surrogacy contract70.

Shri Bhartruhari Mahtab introduced Bill 117 to tackle sex selection and inappropriate
utilization of surrogacy, and recommended making sex selection a criminal offence. The
Government of India launched a call for recommendation on the ART bill, 201471.

A nationwide consultation on women's rights was conducted in October 2015, with

support from UN Women, ICMR, Ministry of Women and Child Development, Ministry
of Health, Civil society, State Women Commission, and UNFPA.

The purpose of the conference was to analyze the terms of the Bill 2014 and protect the
health and well-being of the surrogate women and of surrogate offspring. The second
purpose of the consultation was to generate views across varied constituencies on the
topic and issues associated India’s growth as the global centre for surrogacy72.

Insurance became a crucial aspect of the surrogacy. This insurance covered Healthcare
insurance along with life insurance for both surrogate as well as oocyte donor. It
suggested creating ‘National Board for ART’.

It has planned to develop a National Registry’ for ART Clinics and Banks in India. There
should be formation of State bodies to supervise the ART clinics within their
determined authority. It put numerous obligations and responsibility on ART clinics and
Banks. For example- ART shall evaluate the health of intended couple and surrogate and
69
Dhar Arti, Gaps in surrogacy Bill, The Hindu, 27 October 2013
https://thehindu.com/features/metroplus/society/gaps-in-surrogacy-bill/articles5276062
(last visited 06.07.2023)
70
The Assisted Reproductive Technology Bill 2014,Bill no. 61 of 2014,as introduced in Lok Sabha by Dr.
Kirit Premjibhai Solanki, M.P
http://164.100.47.4.lsbilltexts
71
The Assisted Reproductive Technology Bill 2014,Bill no. 61 of 2014,as introduced in Lok Sabha by Dr.
Kirit Premjibhai Solanki, M.P
http://164.100.47.4.lsbilltexts (last visited 06.07.2023)

72
No. V.25011/444/2011-HR (Vol. II) (Part), Ministry of Health and Family Welfare, Government of India
dated 30/09/2015 available on http://feministlawarchives.pldindia.org/wp-conetnt/uploads/drafts-Assisted-
Reproductive-Technology-Regulation-Bill-2014.pdf (last visited 06.07.2023)

31 | P a g e
that verify that they are satisfying all requirements as defined in the Bill. This Bill wasn't
sufficient to safeguard the interests of all interested parties and stakeholders. It has legal
contradiction concerns in vesting legal parenthood of the surrogate offspring 73.
Subsequently that particular Bill became ‘ART Bill 2015’.

The Surrogacy (Regulation) Bill 2016

The ART Bill 2016 divided in 2016 two different laws-

1. The Surrogacy Regulation Bill 2016 and,

2. The Assisted Reproductive Technology Bill 2015.

The Surrogacy Guideline Bill 2016 was created to plainly establish the concerns and
issues associated with Surrogacy practices in India. The goal of this measure was to
regulate and entirely abolish commercial surrogacy.

To defend the legal rights of surrogate children and eliminate the double-dealing of
miserable mothers. Only altruistic surrogacy was authorized. The proposal of 'The
Surrogacy Guideline Bill 2016' was tabled in Lok Sabha on 21st Nov, 2016 by, Mr. J.P
Nadda (Ministry of Health and Family welfare). Nonetheless, the Bill expired due to the
the postponement sine die of the parliamentary session74.

The Parliament form National Surrogacy Board, State Surrogacy Board and nomination
of adequate bodies for Surrogacy regulation75.

ART clinics shall be registered and commercial surrogacy were forbidden, inexperienced
workers cannot be hired. Whereas marketing, canvassing, publication, propagation and
advertising forbidden. Abortion throughout the duration of surrogacy restricted, and
preservation of embryos or gametes outlawed. Surrogacy may be undertaken when one or
both members of the relationship suffer from fertility issues, however only altruistic
surrogacy is legal. Purpose of breeding shall not be selling or buying the infant for abuse
like- prostitution or exploitation.

The parents commissioned have to obtain an order regarding the parental custody of the
infant. Insurance coverage became essential. A mother chosen for surrogacy needs to be
an ever married. She must have a baby of her own. Age limit of surrogate shall vary
from 25-35 years. Surrogate shall be close relatives of the couple, and have a certification
from medical and psychological for appropriateness of surrogacy.

73
Kusum Sonali, Review of Art Bill- Contested issues and cases, ILI Law Review, Summer issue 2016
74
Sonica Sharma, Nakul Singh and Payala Vijaylakshmi, Surrogacy: Risks to health of surrogate and Laws
regulating surrogacy, Asia Life Sciences, vol.10,issue 03, July 2020, p.572
75
Bill no.257 of 2016, Draft of The Surrogacy (Regulation) Bill 2016

32 | P a g e
The Bill 2016 requires the average age of the female in between 23-50 years where as the
male member vary between 26-55 years. People from other nations, Homosexuals and
Unmarried persons are restricted. The surrogate mother is required to have written &
informed approval in the authorized form and language.

This is an approach to the problem of global commercial surrogacy when agreements

were executed in English. This legislation bans foreign partners from abandoning
offspring due to genetic or birth issues, and surrogate infant will be considered as
biological child of them, and thus, the surrogate child contain all of the benefits and
rights of a biological child.

This Bill intends to discriminate the interested spouses on the grounds of marital status,
their ages, gender identification, and nationality. It also opposes the Juvenile Justice
(Care and Protection) Act 2015, which permits foreign persons to adopt children
irrespective of their marital status76.

By permitting only close kin of the commissioned spouse to be surrogates, it had

neglected the danger of exploitation and abuse within altruistic surrogacy. The close
relative were true altruistic surrogate to the spouses is not assured.

Likewise there is no certainty that an altruistic surrogate won't be pressured into giving
birth. The Bill declares that any woman discovered executing a non-altruistic surrogacy
would be considered to have been coerced to do so "by her spouse, the interested couple
or other relative" it thus, overlooks the woman's own autonomy.77

viii. 102nd Report of Parliament Standing Committee

The Surrogacy (Guideline) Bill 2016 was tabled in the Parliament on the month
of November 2016. On the 12th of January 2017, the proposal was forwarded to the
Standing Committee on Health and Family Welfare. This report was presented in the
council of state and concurrently put on the house of people on august 2017.

The Standing Committee proposed that altruistic surrogacy should be substituted with
paid surrogacy, the description of infertility should be amended in accordance with
WHO, the duration of insurance should be for a longer period predetermination of sex
in surrogacy ought to be forbidden, and constraint duration for issuing a the necessity
certificate should be instructed78.

76
Anil Malhotra, Draft Surrogacy Bill violates fundamental right of people to choose modes of parenthood’
The Indian Express August 27, 2016 cited in Prabhanjan Kumar Singh, Critical evaluation of Draft
Surrogacy Regulation Bill 2016, Jamia Law Journal, Vol.2, 2017, p.161
77
Bronwyn Parry, Rakhi Ghosal, Regulation of surrogacy in India: whencefoth now?, BMJ Global Health ,
8 October 2018, p.1
78
http://164.100.47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf (last visited 30.07.2023)

33 | P a g e
Meanwhile, the Department of Health and Family Welfare presented a total of 42
proposals from the DRSC on Health and Family Welfare's report. Of the 42 suggestions,
13 were approved by the Department, were agreed to be incorporated in the regulations.
The Department dismissed eleven suggestions.

The Surrogacy Bill already includes four ideas. On March 21, 2018, cabinet authorized
the Surrogacy (Regulation) Bill 2016 to proceed with the formal announcements
proposed by the DRSC. Subsequent to combining the sensible ideas the Surrogacy
(Guideline) Bill 2016 approved in the Lok-Sabha on eighteenth December 2018 with the
heading The Surrogacy (Guideline) Bill 2018 including the Bill no.257-C of 2016.
Despite complaints by Congress and AIDMK MPs over a range of concerns, the Lok
Sabha discussed the measure for an hour before approving it79.

During the discussions, representatives of different political parties spoke in favour of

the surrogacy (Regulation) measure 2016, however others, such as TMC's Kakoli Ghosh
Dastidar and NCP's Supriya Sule, encouraged the government to widen the scope of a
measure80.

ix. The Surrogacy (Regulation) Bill 2018

The proposal was intended for regulating surrogacy services in India comprises 51
components divided into eight divisions. This bill's utmost provisions kept unaltered from
the former Bill.

Features of the Bill are as follows:

• Surrogacy must be performed by a close relative of the spouse; yet, the expression
"close relative" wasn't described. Surrogate shall once ever to be married and has her own
infant. Surrogate has a minimum age of 25 and maximum 35 years old, in addition to
She needs be mentally and physiologically fit for the surrogacy81.

The Bill allowed just Indian legally wedded couple to be the commissioning partner.
Female companion needed to be within 23-50 years and male 26-55. They should have
been legally married at least for five years. • Single people and homosexual couples
weren't permitted to access surrogacy82.

• Being involved in commercial surrogacy encompasses a severe penalty of up to five

years in prison and a penalty of up to five lakh dollars.

79
Ibid
80
Ibid
81
http://164.100.47.4/BillsTexts/LSBillTexts/PassedLoksabha/257-C%20_2016_Eng..pdf
(last visit 29.07.2023)
82
Ibid

34 | P a g e
 • In order to eradicate illegal activities in surrogacy and safeguard the rights of the
surrogate mom and the baby or children delivered via surrogacy, certain activities were
designated illicit. Contraventions include

(a) Practicing or advertising commercial surrogacy;

b) Assaulting the surrogate mother or offspring or abandoning them;

(c) Trading or importing human fetuses or gametes for the intent of surrogacy is
punishable with maximum penalty of 10 years in detention and a fine of ten lakhs.

This Bill wasn't effective to take form approved Act. Soon this bill was introduced with
some more modifications as The Surrogacy (Regulation) Bill 2019 was submitted in the
House of people as Bill no. 156-C of 2019 on 15th July 2019 and was subsequently
passed by the House of people on 5th August 201983.

It was further presented on 6th November 2019 for review and on 21st November 2019
directed to the Selected Committee. The aim of this law was to render altruistic surrogacy
available to impoverished Indian couples, which includes NRIs. However, PIO and OCI
certified will still be unable to utilize surrogacy facilities in India.

The Surrogate Mother was provided with a sixteen-month insurance policy to cover all of
her post-delivery issues. Registering surrogacy services becomes obligatory. The
surrogate mother's documented informed assent and the sanction of the appropriate
authorities are necessary for an abortion of the infant in her pregnancy.

The approval should be compliant with the Medical Termination and pregnancy Act
1971. Furthermore, the surrogate will be authorized to opt out of the procedure. This Bill
seeks the establishment of National and State Surrogacy as well as Proper specialist as
mentioned in past bills84.

x. House of council Standing Committee report on ‘The Surrogacy (Regulation) Bill

2019

On the third of December, 2019, the standing Committee initiated considering the
2019, Bill. Nine further sessions were conducted. In the following gathering on
09.12.2019, the Secretary of Department of Health and Research presented that the
Department had been digging at the Bill across the previous decade and had put forward
that the most effective practices from different countries and the quoting demonstrations
in multiple countries. Additionally, they had examined the situation of mothers who act
as surrogates and the culture and history of surrogacy85.

83
Ibid
84
Ibid
85
http://164.100.47.5/committee_web/BillFile/Bill/70/137/156-C%20of%202019_2019_12_12.pdf

35 | P a g e
The committee was updated on the worldwide surrogacy issue by the Joint Secretary. It
had split the countries into three distinct categories:

(A) Nations where both varieties of surrogacy are explicitly forbidden. Finland, France,
Japan, , Saudi Arabia, Switzerland, Nepal, Pakistan and others were the nations at the
time that explicitly forbade surrogacy.

B) Australia, Israel, the Netherlands, Belgium, South Africa, Thailand, UK, Vietnam, etc.
are countries that authorize solely altruistic surrogacy.

C) The Russian Federation, , Ukraine etc. and some states in the USA for example—
California, Illinois, Arkansas, New Hampshire, etc.—allow both altruistic and
commercial forms of surrogacy. The Committee noticed that each country imparted a
distinct reason.

The Committee after consideration, suggested for reimbursement to the surrogate mom
by the mode of insurance coverage for expenditures spent by the surrogate mom86.

x. The Surrogacy (Regulation) Bill 201987

The bill defines the term surrogacy, altruistic surrogacy and commercial surogacy as
such-

The expression Surrogacy is from Latin phrase Surrogare, referring to ‘to place on
different place or to substitute‘. The legislation defines surrogacy as a process wherein
one woman delivers a baby for an intended couple with the aim of giving over that
baby to the intended couple88. There are, two forms of surrogacy have been prevalent in
India, i.e.,

(i) Altruistic Surrogacy89 - In this case, no payment or incentives in the form of money
are offered to the surrogate mom for having the kid except medical bills and insurance.

(last visit 31.07.2023)

86
Report of the Select Committee on surrogacy (Regulation) Bill 2019
https://prsindia.org/files/bills_acts/bills_parliament/2019/Select%20Comm%20Report-%20Surrogacy
%20Bill.pdf (last visit 1.08.2023)
87
Supra 48
88
2(zc), The Surrogacy (Regulation) Bill, 2019.
89
2(b), The Surrogacy (Regulation) Bill, 2019.

36 | P a g e
(ii) Commercial Surrogacy90 - This form of surrogacy includes commercialization of
practices of surrogacy, when a surrogate mother is offered remuneration, reward,
financial gain incentive, etc for having the child of the commissioned parents.

The Bill intends to prohibit the activity of commercialization of surrogacy, by outlawing

the practice of commercial surrogacy and declaring it a penal violation. This move
originates shortly after there have been an overwhelming number of reports with regard
to illegal activities, abandonment of surrogate baby, exploitation, abuse as well as death
of vulnerable surrogates, criminal activity of intermediaries in importing, trading, and
exporting human being embryos and gametes and uncontrolled clinics performing
surrogacy91.

This clause of the Bill has been disputed intensively. It has been noticed that Surrogacy is
a booming business in India with an estimated value of INR 2000 crore92.

The surrogacy sector, roughly 400 million dollars a year, spurred the creation of over
3000 fertility clinics all across India93.The surrogate moms come from a difficult financial
situation and have been able to feed their families by renting their uterus. Paradoxically,
this move might have a detrimental effect by promoting black market popularity and
invisible pressure on women.

WHO CAN ACT AS A SURROGATE MOTHER?

With the purpose of placing an end to the activity of ‘renting a womb‘. It permits just the
‘Close Relative‘of the commissioned couple to perform the role as a surrogate for them94.

The Bill fails to specify who is a close relative, and the issue arises whether a close
friend, who is beyond the intimate boundaries of the family of intended couple, may
operate as a surrogate or not. The special committee of the House of Representatives has
proposed to abolish the phrase of ‘Close Relative‘and to extend the scope of women who
may undergo surrogacy95. So yet no major move has been made to carry into effect the
proposal of the Select Committee.

Further, given appropriate respect to the mental and physical well-being of the surrogate,
the Bill needs her to be married, possessing an offspring of herself when she is 25 and 35

90
2(f), The Surrogacy (Regulation) Bill, 2019.
91
REPORT OF THE SELECT COMMITTEE ON THE SURROGACY (REGULATION) BILL, 2019.
92
Dr. Dipankar Debnath, https://www.ijcrt.org/papers/IJCRT2005219.pdf (last visited 06.07.2023)
93
Bhumitra Dubey and Yash Tiwari https://www.indialawjournal.org/analysis-of-the-surrogacy-regulation-
bill.php (last visited 06.07.2023)
94
4(b), The Surrogacy (Regulation) Bill, 2019.
95
REPORT OF THE SELECT COMMITTEE ON THE SURROGACY (REGULATION) BILL, 2019.

37 | P a g e
years of age96. This age requirement is in lieu with the menstrual window throughout a
women‘s lifespan in the contemporary period.

WHO CAN OPT FOR SURROGACY IN INDIA?

On approximately 12,000 foreigners visit to India seeking a commercial surrogate 97.

Complaints of surrogate exploitation and desertion among babies born out of surrogacy
have appeared as well. Hence, to put an end on this year old activity the Bill enables only
childless Indian couples who have been married for no less than 5 years to access the
advantage of this technology98.

Though it includes a provision prohibiting couples those possess a living child of their
very own, it permits an intending couple whose child is either physically or mentally
disabled or suffers from an a critical disorder or life-threatening condition with no
guaranteed cure, to take advantage of surrogacy treatment.

The Indian society has witnessed a huge growth in the percentage of live in partners
including widows/divorced women, who're capable of parenting a kid on their own.
However, the intended legislation appears to prohibit them all from bearing a surrogate
baby.

In 2016, the Hon‘ble the Apex Court in its landmark verdict has decriminalized
homosexual relationships between couples99. However, regardless of this legality they are
barred by the Bill from having baby via a surrogate.

Additionally, the PIO (Person of Indian Origin) , OCI (Overseas Citizen of India) and
people from other nations were not permitted to avail surrogacy within the country for the
reason the Home Ministry, Ministry of External Affairs sent a notification 100wherein,
PIO/OCI and foreign nationals were not granted a visa when deciding to visit India for
taking advantage surrogacy, as it lead to nationality issues for the child born via
Surrogacy. In Jan Balaz v. Anand Municipality101, the concerns of citizenship of kid born
from surrogacy in the country of India, to foreign nationals had arose owing to other
nations not recognizing surrogacy arrangements.

Hence, to bridge the legal void with such nations and with the ultimate purpose of
avoiding the exploitation of kid born through surrogacy overseas citizens have been
forbidden from accessing surrogacy advantages in India. Though, the Bill intends to
legalize altruistic surrogacy for NRI (Non Residential Indian).
96
Supra note 56
97
NATASHA COMEAU, https://opencanada.org/inside-indias-surrogacy-debate/ (last visited 06.07.2023)
98
4(c), The Surrogacy (Regulation) Bill, 2019.
99
Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors. , MANU/SC/0947/2018.
100
Government of India Ministry of Home Affairs (Foreigners Division), No.25022/74/2011-F.1 (VoLIII).
101
Jan Balaz vs. Anand Municipality and Ors. , MANU/GJ/0766/2009.

38 | P a g e
WHAT ARE THE RIGHTS OF A CHILD BORN OUT OF SURROGACY?

Although the Bill doesn‘t clearly identify any particular right to be enjoyed by the kid
born through surrogacy, several clauses are expected to safeguard the child‘s interest. It
penalizes the crime of abandoning, denying or exploiting babies born via surrogacy and
forbids the raising of children for importation or exportation or sale, prostitution or any
other type of persecution. Under Section 7 of legislation Bill 102, the prospective couple is
forbidden from abandoning the child, born through surrogacy method, for any reason
which includes any genetic defect, birth defect, any additional medical condition, and the
defects establishing subsequently, sex of the kid or the conception of more than one baby.
Since, as per the Bill surrogacy may be selected by Indian nationals, the kid born out of
surrogacy would have all the rights possessed by the residents of India.

WHAT ARE THE RIGHTS OF THE SURROGATE MOTHER?

As noted before, the Bill aims at prohibiting abuse of the surrogates both emotionally and
physically. It becomes essential to offer an insurance policy of the Surrogate for a period
of sixteen months which includes postpartum birth complications103.

By seeking to restrict the commercial surrogacy, the legitimate source of the earnings of
the the surrogates in the nation is likely to be harmed. The right to procreation is a core
human right. The Supreme Court has stated that a woman‘s freedom to make
reproductive decisions has been construed as a component of ‘personal
liberty‘as recognized U/A 21 of the Indian Constitution104.

By defining a strict condition to be satisfied for a woman to function as a surrogate, it is

likely to create a door for petitions alleging this rule to be an infringement of their basic
rights. It governs the whole procedure of surrogacy and places the surrogate mother on a
platform expecting her to be altruistic in nature while undertaking surrogacy, limiting her
monetary advantages, even if she is in desperate need of.

As indicated earlier, the restriction might lead to black marketing of the commercial use
of surrogacy and further rise in the mistreatment of vulnerable women and children born
through surrogacy.

WHAT WILL BE AUTHORITIES ESTABLISED UNDER THE BILL?

Under the fifth chapter, the Bill aims to form National Surrogacy Board, State Surrogacy
Boards and establishment of Appropriate Authorities for control of the practice and
method of Surrogacy and for issues associated therewith. It has also provided for the
competency and tenure of its forming members as well.
102
7, The Surrogacy (Regulation) Bill, 2019
103
Supra note 60
104
Suchita Srivastava v. Chandigarh Administration, MANU/SC/1580/2009.

39 | P a g e
They shall be responsible for the task of regulation of certification of Surrogacy Clinics
and execution of the terms of the Bill105.

Further, the National Surrogacy Board has been entrusted with the job of guiding the
Central Government on legislative issues connected to surrogacy. It has also been
highlighted that the National Surrogacy Board would be interpreting the unclear
terminology in the Bill such as ‘close relative‘106.

This provision would aid in amending the legislation pertaining to surrogacy throughout
the approaching years hence shaping the law as per the demands of the community.

Thus, the Surrogacy (Regulation) Bill, 2019 is a blend of ethical, social, legal and
technological difficulties. Though having ambiguous areas, it is a move towards
supervision of a something which has been done since generations in India.

Leaving this industry unregulated will perpetuate the challenges suffered by surrogates
and children involved therein. Even the Apex Court, in the Baby Manji Yamada 107 case
has stressed upon the necessity a suitable regulation that regulates surrogacy transactions.
With comments and arguments around the nation about the contents of the Bill, it may be
expected to undergo major revisions in the next years. After all, the legislation continues
on developing and the adjustments made therewith will be at level with the social
necessities.

xii. The Surrogacy Regulation Bill 2020

This Bill 2020 was passed by the Parliament on the 19th of February 2020, integrating
the House of Representatives Select Committee's findings and proposals. Then, in a news
conference, Prakash Javadekar (Cabinet Minister) and Women and Child Development
(WCD) Minister Smriti Irani both claimed that the law attempts to govern surrogacy by
permitting altruistic and commercial use of surrogacy.

Smriti Irani further added that Prime minister Narendra Modi has pushed from the front
of having the liberal attitude on the subjects of regenerative rights of women, be it
medically termination of pregnancy, The ART Bill and the Surrogacy Bill.

The Surrogacy (Regulation) Bill 2020 comprises the following important provisions:-

 It made it feasible for a "willing woman" to volunteer as a surrogate mother,

abolishing the need that a "close relative" be a surrogate mom.
 Altruistic surrogacy is also provided to infertile couples, widows and widowers
and divorced women around the ages of 35 and 45. The Select Committee of the

105
22, The Surrogacy (Regulation) Bill, 2019.
106
Supra note 57
107
Manji Yamada vs. Union of India (UOI) and Ors., MANU/SC/8083/2008

40 | P a g e
 House of Representatives issued the following statement in favour of the
necessity to enable unmarried women to bear children: "There are particular
conditions under which one individual genuinely ought to avail surrogacy as a
possibility to have an offspring." One such case is a young widow, who is
normally competent but cannot bear baby owing to fear of social stigma
associated to pregnancy of widow in our civilization."
 The Bill sought to put up a National Surrogacy Board, State Surrogacy Board in
all states and suitable authorities like the prior Bill.
 The mandated coverage for insurance for the surrogate woman has stretched to 3
years, earlier it was 18 months.

The Bill 2020 was challenged for reinforcing gender norms and by restricting gay
couples and members of the LGBTQ community as it reintroduce the gender binary
established in patriarchal rule108.

xiii. The Surrogacy (Regulation) Act 2021

On 25th Dec. 2021, with the assent of the President, a powerful legislation to govern
surrogacy activities in India were ultimately enacted this bill. It was adopted without a
discussion in the lower of parliament on December 1, 2021, and the house of
council adopted it on December 7, 2021, together with the ART Act of 2021.

The Minister of Healthcare and Family Welfare, Dr. Mansukh Mandaviya accelerated for
contemplations of Legislation in both the upper house and lower house. Shri Karti P.
Chidambaram, an MP, posed two key concerns concerning surrogacy during the
discussion. He claimed that the two laws contradict regularly.

After the age of 18, a baby born to a donor may be interested about the their father's
identity. That right isn't provided here. Although he accepted the donor's right to privacy,
he sought some sensitivity in this respect and enquired about the legal remedy in the case
of a data breach109.

In the House of council, Shrimati Mamata Mohanta presented the Bill and said that “The
ART procedure has given a fresh outlook in the hearts of many women however many
lawful, ethical and social problems connected with it had similarly became exposed. In
India, these facilities are not accepted. Individuals from wherever globe comes to our
nation for surrogacy.

108
30 Swati Gola, The Indian surrogacy Regulation Bill 2020: Enforcing Gender Norms? Acaedemia
Letters, Article 843 https://doi.org.10.20935/AL843 (last visited 06.07.2023)

109
Synopsis of debates, Lok Sabha, 1 December 2021

41 | P a g e
A worldwide scam is operating under name of Surrogacy that should have been
prevented. With the aid of this Bill this may be checked” 110. Both of the acts, ‘The
Assisted Reproductive Technology Act 2021’and ‘The Surrogacy (Regulation) Act 2021’
have began on 25 January 2022 by a government announcement.

Highlights of ‘The Surrogacy (Regulation) Act 2021'

 This law only authorized altruistic surrogacy in India and barred all types of
commercial surrogacy. Section 2 (b) of the Act specifies the concept of altruistic
surrogacy. It clearly excludes all charges and fees. Except for the surrogate mom's
coverage for insurance and healthcare expenditures, no other types of
remuneration or financial incentives are provided to the female surrogate. Instead,
they are given in one of two ways to her dependents or via her agent.
 It gives a complete overview of commercial surrogacy.
 Child sex determination is absolutely banned.
 It superseded the word 'proven infertility' to 'medical indication mandating
gestational surrogacy' as it was proposed by the council of people Select
Committee report.
 It enabled the administrator or in-charge of the clinic to determine the requirement
of surrogacy for intended spouse documented as a hard copy with grounds.
 It permitted Indian spouses, including those of Indian heritage and intended
mothers, to utilize surrogacy procedure. In this sense, an intended woman is a
widow / divorcee around the ages of 35–45 years.
 It enabled merely a volunteer woman to opt as surrogate mother, who needed to
be a married female having her very own pupils and within the ages 25 to 35
years. It gives the surrogate baby the status of a biological child since he would be
deemed an actual baby of the couple who commissioned him and will be entitled
for every natural right.
 It established up a Registry, called ‘The National Assisted Reproductive
Technology and Surrogacy Registry’ for the objective of registering clinics in
conformity with the Act.
 The provision in the fifth chapter allows for the formation of "The National
Assisted Reproductive Technology and Surrogacy Board" and "The State
Assisted Reproductive Technology and Surrogacy Board" to govern, oversee, and
monitor both surrogacy centers and ART clinics.
 Chapter VII compelled preclusion on the conduct of commercial surrogacy
regardless of conceivable structure and disobedience of these standards add up to
violation of Offenses under the Act 2021 and penalty authorized is detainment up
to 10 years and fine upto ten lakh rupees.

110
Synopsis of debate, Rajya Sabha, 7 December 2021

42 | P a g e
Lacuna-

It authorizes only heterosexual couples to apply Surrogacy method for the birth of their
own biologically baby. It utterly misses the procreation rights of homosexual couples
when the hon'ble Supreme Court decriminalized the same sex relationship with its verdict
in Navtej Singh Johar case.

Beside that it also debars Unmarried single male, woman, divorcee or widow, live-in pair
to utilize Surrogacy option. If they want to be a parent then they have to adopt a baby or
stay childless, which opposes their procreation rights and right to create family.

Thus, prior to the passage of The Surrogacy (Regulation) Act 2021 because to lack of
proper regulation Surrogacy procedure was fairly liberal which drove mushrooming of
IVF/ART/Surrogacy facilities in India particularly in Anand(Gujarat), New Delhi,
Hyderabad, Mumbai, Bangalore etc. Surrogacy was criticized by the Academics on
the disguise of commercialization of the Children, financial abuse of intended spouses,
and control or monitor upon the body of Surrogate.

This Act made Commercial Surrogacy entirely prohibited in India and permitted only
altruistic surrogacy to be performed within India. prohibiting Commercial Surrogacy
detrimentally impacted the entire system associated with the ‘Surrogacy Industry’ in
India regardless of those IVF clinics who obtained billions through foreigner as well as
those poor Surrogate Females who were made able to generate big money,
Surrogacy intermediaries and other stakeholders.

This Act enables only Heterosexual couples to opt this service and prohibits the
procreation rights of same sex couples, solitary man, woman and the married women who
are struggling from infertility and wish to have children via Surrogacy option.

XIV. ANALYSIS OF KEY POINTS OF SURROGACY (REGULATION) RULES,

2022

Central Government by issuing a notice announced the eligibility requirements and

number of individuals necessary at a licenced surrogacy clinic. Further, the specifics
regarding the minimal equipment necessary for such clinics are also carefully given.

The constitution of such clinics as per the announcement is, that any such clinics should
include at least one gynecologist, anesthetist, embryologist and counselor and the centre
may engage additional personnel by the ART Level 2 clinics111.

Gynecologist in surrogacy centers should be post-graduate (in medical) in obstetrics or

gynecology and should have track of carrying out 50 ovum pickup operations and at least
111
By Bhumika Indulia, Surrogacy (Regulation) Rules, 2022,
https://www.scconline.com/blog/post/2022/06/23/surrogacy-regulation-rules-2022/ (last visit 02.08.2023)

43 | P a g e
3 years of clinical experience in an ART centre under supervision of a professional ART
expert. ART is defined as “assisted reproductive technology” signifies every method that
attempt to produce a pregnancy by managing the sperm or the oocyte exterior to human
body and transmitting the gamete or the embryo inside the reproductive organs of a
surrogate woman”112.

Henceforth, it is quite necessary for a gynecologist to have competence in this

technique. Form 1 within the notification sets out the application form for the
intended Couple of Origin in India referring to “The couple when both husband (male)
and wife (female) are NRI in accordance with the Instructions, or Guidelines that are
implemented by the Ministry of Home Affairs periodically subject to requirements as per
the Surrogacy (Regulation) Act, 2021” as specified in the Surrogacy (Regulation)
Amendment Rules, 2023, or a Desiring woman for taking advantage of surrogacy in
order to get a certificate of guidance from the board. To preserve the rights of the
surrogate mom, the provision for insurance has been implemented, which forces the
intended couple or woman to acquire a health insurance to cover the surrogate mom for
36 months113.

An affidavit before a MM or a JM of 1st class must be signed by the lady or spouse with
purpose of offering assurance u/s 2 of the Surrogacy (Regulation) Act, 2021.The
maximum amount of tries of surrogacy operation must not be more than 3 times.

The surrogate mother should offer her free permission as per the parameters stated in
Form. It has been determined the gynecologist shall implant just 1 embryo, with an
exemption of 3 embryos in rare instances. In instance, if a surrogate mother wishes to
abort her baby then abortion procedure needs to be performed as per Medical
Termination of Pregnancy Act, 1971114.

XIV. CASE STUDY (CASE NO. 8448/2022 – KARAN BALRAJ MEHTA & ANR.
V. UNION OF INDIA)115

A petition was presented by Karan Balraj Mehta and Dr. Pankuri Chandra at Delhi High
Court, opposing the expulsion of a single unmarried man and a married woman bearing a
baby from surrogacy and sought for the decriminalisation of commercial-surrogacy under
ART (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021116.

112
Ibid
113
Anushika Parashar, Arushi Mehtani, ANALYTICAL STUDY ON SURROGACY (REGULATION)
RULES, 2022, https://www.lawrbit.com/article/analytical-study-on-surrogacy-regulation-rules-2022/ (last
visited 01.08.2023)

114
Ibid
115
Supra 73
116
Sukriti Mishra, Plea In Delhi High Court Challenging Provisions Of Surrogacy And Reproductive
Technology Act, Notice Issued To Centre, https://lawbeat.in/news-updates/plea-delhi-high-court-

44 | P a g e
The petitioner, Karan Mehta stated that it’s an independent decision of a single unmarried
man regarding having a baby via surrogacy and they stand prevented
from utilizing surrogacy as a childbearing option, which is prejudiced and contrary to the
Constitution’s A.14 and 21117.

Further, second petitioner Dr. Pankuri Chandra has been found unqualified under the Act
as she lacks a medical condition that would need surrogacy and is unable to identify and
acquire permission from a suitable surrogate mother.

The petition maintains that one part of the right to privacy guaranteed by Article 21 of the
Indian Constitution is the right to autonomy with regard to reproduction. Therefore, the
right to safety of each and every resident or person to be freed from unjustified legislative
interruption into difficulties typically influencing a decision to birth or sire a child via
surrogacy can’t be erased118.

This petition has been submitted for further hearing.

CONCLUSION

As India is one of the key focal points of these activities, the Act is undoubtedly a
wonderful development but there are some elements on which the rules on Surrogacy
stands conflicting. According to Article 21, “Right to Life” is a vital feature and right to
reproduction has been incorporated within it. The right for women to have children and
the right to carry a pregnancy to term are all covered in their reproductive rights.
Therefore, it is plainly a violation of Articles 21 and 14 to restrict surrogacy while
limiting reproductive alternatives.

However, it is very essential to maintain specific requirements in the professions where

danger to life of a person exists with the same intent the central government announced
the guidelines for establishing quality surrogacy centers and explained the necessary
requirements that the surrogacy hospitals shall comply with prior to providing their
assistance. In addition to that some rules are also supplied for an intended couple or
woman who is going for surrogacy. With these procedures a safeguarding process for a
surrogate mother is formed.

challenging-provisions-surrogacy-and-reproductive-technology-act (last visited 03.08.2023)

117
Ibid
118
Supra 73

45 | P a g e
 CHAPTER- III
Biological aspects of surrogacy and their consequences on
Women’s Fundamental Rights

1. Complications in Surrogacy Regarding the Embryo: From the Pre-

implantation to the Gestational and Neonatal Period

Over the past several years, fertility issues have evolved into a matter that a large number
of couples with infertility opt to address119. Surrogacy has changed the current possibilities
within the artificial reproduction sector, permitting the gestation and delivery of a baby by a
different woman known as the surrogate mom. She relinquishes the newborn after delivery
to the intended parents120.

The first category of surrogacy is the conventional (or genetic) surrogacy, whereby the
sperm from the father or the anonymous donor's sperm is naturally or intentionally utilized
to fertilize the surrogate's egg (homologous IVF).

119
Ruiz-Robledillo N., Moya-Albiol L. Gestational surrogacy: psychosocial aspects. Psychosocial
Intervention. 2016;25(3):187–193. doi: 10.1016/j.psi.2016.05.001,
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120
Burrell C., Edozien L. C. Surrogacy in modern obstetric practice. Seminars in Fetal and Neonatal
Medicine. 2014;19(5):272–278. doi: 10.1016/j.siny.2014.08.004

46 | P a g e
This procedure results to an embryo genetically connected to the surrogate. Another kind is
the gestational (or host) surrogacy. In this instance the inserted embryo has no genetic
relationship with the artificial mother. In gestational surrogacy, the embryo comes through
heterogonous IVF utilizing the intended couples' gametes, or the sperm of the intended dad
and donor's oocyte (not the surrogate's), or the anonymous donor's sperm and the desired
mother's oocyte. Alternatively, the embryo might be donated 121.

Infertility, medical issues, variations regarding gender identity and an orientation, and
concerns of social nature indicate the fundamental factors behind patients' desire to explore
surrogacy122.

Women with a significant Müllerian abnormality or a congenital lack of womb and/or

vagina are frequent candidates for surrogacy The medical condition of Mayer-Rokitansky-
Küster-Hauser Syndrome defined by a female phenotype as well as genotype and
associated with a congenital aplasia of the the female reproductive system and the vagina 123
provides another group of patients needing surrogacy124.

Further to the aforementioned, Complete Androgen Insensitivity Syndrome (CAIS

125
syndrome) where both ovaries and uterus are missing , as well as women who have had

121
Wang A. Y., Dill S. K., Bowman M., Sullivan E. A. Gestational surrogacy in Australia 2004-2011:
treatment, pregnancy and birth outcomes. Australian and New Zealand Journal of Obstetrics and
https://obgyn.onlinelibrary.wiley.com/doi/10.1111/ajo.12451 (last visited 28.07.2023)
122
Serafini P. Outcome and follow-up of children born after IVF-surrogacy. Human Reproduction
Update. 2001;7(1):23–27. doi: 10.1093/humupd/7.1.23,
https://academic.oup.com/humupd/article/7/1/23/813864 (last visited 28.07.2023)
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Sills E. S., Anderson R. E., Mccaffrey M., Li X., Arrach N., Wood S. H. Gestational surrogacy and the
role of routine embryo screening: current challenges and future directions for preimplantation genetic
testing. Birth Defects Research Part C—Embryo Today: Reviews. 2016;108(1):98–102.
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124
Berra M., Liao L.-M., Creighton S. M., Conway G. S. Long-term health issues of women with XY
karyotype. Maturitas, https://www.maturitas.org/article/S0378-5122(09)00459-9/fulltext (last visited
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hysterectomy, appears as just few of the circumstances when surrogacy is important and
women may select this as a road to parenthood. Gestational surrogacy is also indicated in
instances of Turner's Syndrome owing to the recognized cardiac and medical issues in these
individuals126. Furthermore, surrogacy may offer as an alternative for women with repeated
miscarriages or unexplained failure of infertility therapy127.

Heart or renal illness and acute Rhesus isoimmunization while pregnant are sufficient
reasons for the mother to avoid such high risk situations and consequently offer good
grounds in selecting for surrogacy128. Other grounds for surrogacy include maternal
medicine for specialized illness therapy that might possibly boost embryo's teratogenesis129
or even serious genetic issues connected to the intended parents130.

Social motivations for voluntary surrogacy may correlate to highly motivate professional
women and the stress faced by the intended mother about the bodily changes and the pain

126
Fertility preservation in Turner syndrome - PubMed. (2016, January 1). PubMed.
https://doi.org/10.1016/j.fertnstert.2015.11.042 (last visited 29.07.2023)
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Brinsden P. R. Gestational surrogacy. Human Reproduction Update,
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Beale J. M., Creighton S. M. Long-term health issues related to disorders or differences in sex
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Dar S., Lazer T., Swanson S., et al. Assisted reproduction involving gestational surrogacy: an analysis of
the medical, psychosocial and legal issues: experience from a large surrogacy program. Human
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Shenfield, F., Force on Ethics and Law including, E. T., Pennings, G., Cohen, J., Devroey, P., Wert, G.
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linked with her view on pregnancy131. Lastly, surrogacy may satisfy same-sex partners'132 or
even a single parent's yearning for a genetically related family133.

It is apparent that the choice of surrogacy corresponds to a broad spectrum of factors,

ranging beyond purely medical grounds particularly in today's times. The vast majority of
surrogates believe that the primary motive is altruism, since surrogacy enhances their self-
esteem, regardless the fact that monetary gain may also be a key concern134.

In numerous nations, offering money to gestational carriers is legally forbidden, merely

135
permitting limited financial help only for pregnancy-related expenditures. Particularly,
altruistic surrogacy has been legalised in England, in several states of United States, and in
Australia, whereas commercial surrogacy is authorised in Ukraine, and California. On the
contrary side, surrogacy is not legal in Germany, Sweden, Norway, and Italy136.

Prior to commencing operations, some elements should be studied and evaluated to assure
safe result for the surrogate mother and the fetus. The surrogate ought to undergo medical
testing and extensive psychological screening, in order to be deemed appropriate. The
psychological examination analyses the surrogate's capacity to emotionally tolerate
gestation and delivery. It has been suggested that her situation during the gestation might
affect the child's distinctiveness and psychological welfare137.

131
Saxena, P., Mishra, A., & Malik, S. (n.d.). Surrogacy: Ethical and Legal Issues. PubMed Central
(PMC). https://doi.org/10.4103/0970-0218.103466 (last visited 29.07.2023)
132
Blake, L., Carone, N., Raffanello, E., Slutsky, J., Ehrhardt, A. A., & Golombok, S. (2017, April 1). Gay
fathers’ motivations for and feelings about surrogacy as a path to parenthood. OUP Academic.
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133
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134
Supra85
135
Perinatal outcomes after gestational surrogacy versus autologous IVF: analysis of national data -
PubMed. (2017, December 1). PubMed. https://doi.org/10.1016/j.rbmo.2017.08.024 (last visited
29.07.2023)
136
Supra 87
137
Supra 75

49 | P a g e
The approximate age of the mother should vary from 21 to <35 years for conventional
surrogacy as well as 45 years for gestational surrogacy138, and her sexual and reproductive
record should contain at least one prior uncomplicated pregnancy, whilst not surpassing 5
births or 3 caesarean sections.

Nevertheless, there have been instances on surrogates of senior age for which a court ruling
may enable their participation, for instance, in circumstances where the surrogate is a
family member, potentially the mother of the commissioning lady. The elder surrogate has
been claimed by the press to be a 67-year-old lady functioning as a surrogacy mother for
her daughter who acquired uterine cancer resulting in hysterectomy.

Any lifestyle that might threaten the infant's health is forbidden and a legally obligated
contract between the intending parents and the surrogate parent must be executed, verifying
all the aforementioned requirements139.

At this point surrogacy may not provide a clear option among women of reproductive age.
In an intriguing research, when offered with the choice, women stated they would prefer
140
choose for uterine transplantation in lieu with a proportion of 80% versus 47% .
nevertheless should take into mind that in Sweden—where the data comes from—
surrogacy is not a viable option in accordance with Swedish law. Laws and practices
addressing surrogacy differ, reflecting the contentious nature of the topic, giving rise to
several legal and ethical problems141.

This may be largely linked to surrogacy's relationship with numerous hazards throughout
the pre-implantation, prenatal, and neonatal era. The outcomes of surrogacy appear to be

138
Supra 86
139
Supra 75
140
Attitudes towards new assisted reproductive technologies in Sweden: a survey in women 30-39 years of
age - PubMed. (2016, January 1). PubMed. https://doi.org/10.1111/aogs.12781 (last visited 29.07.2023)
141
Supra 89

50 | P a g e
pleasant and hopeful, with an estimated success rate of up to 60% live births, since
surrogate mothers generally appear fertile and young 142.

This article covers the obstacles and issues connected with surrogacy. It notably provides to
literature the relevant relationships with the pre-implantation embryo, the fetus, and the
child. When tackling a surrogate cycle during the IVF set-up, is it feasible that the rush for
the cycle, in order to obtain an ideal outcome, impairs its management? Can these
pregnancies, being generally labelled as “precious,” result in choices and procedures that
assure the greatest percentages of success? Extrapolating on that premise, may these
options be made on nonmedical reasons and therefore represent a risk? Is it conceivable
that we gravitate towards an exaggeration when surrogacy is actually happening?

2. Risk Factors On the Pre-implantation Embryo of a Surrogate

Cycle

It goes hand in hand along with IVF therapy and every element that this implies. A
surrogacy cycle in an IVF set-up involves superovulation, oocyte harvesting, fertilization
procedures, embryo culture, embryo preference, embryo transfer, and maybe
cryopreservation.

It is apparent that surrogacy cycles necessitate the assistance of IVF regardless of

infertility etiology. The fact that such embryos are produced inside the IVF set-up may give
potential for additional alteration of the embryo. Prolonged culture to the blastocyst stage
may provide a basic illustration as it may be regarded to ensure improved implantation
potential143.

142
Supra 83
143
Ventura-Juncá, P., Irarrázaval, I., Rolle, A. J., Gutiérrez, J. I., Moreno, R. D., & Santos, M. J. (2015,
December 18). In vitro fertilization (IVF) in mammals: epigenetic and developmental alterations. Scientific
and bioethical implications for IVF in humans. PubMed Central (PMC). https://doi.org/10.1186/s40659-
015-0059-y (last visited 29.07.2023)

51 | P a g e
Subsequent to that this instance, these embryos may be exposed to genetic evaluation in the
way of Pre-implantation Genetic Screening (PGS). PGS may be applied in order to increase
and enrich the selection parameters and identify the embryos with a regulated chromosomal
complement, thereby assuring a healthy pregnancy144. In this section we emphasise the
negative ramifications associated to the fact that surrogate infants are in reality IVF babies.

2.1. Risk Factors Regarding to Managed Ovarian Stimulation

These two factors embryo manipulation and environmental variables inside the IVF
laboratory established may allow for epigenetic modifications during the initial phases of
embryo development. Under epigenetic impact, the regulation of gene expression via DNA
methylation, histone modification, and miRNA might be changed145.

These alterations are heritable regardless of the fact that they have no impact on DNA
sequences146. With regard to a surrogate IVF period, the superovulation regime is used
either on the intending mother in situations of autologous surrogacy (own oocytes) or on
the oocyte donor or on the real surrogate. At all rates, it is logical for the expected oocyte
production to be high.

Epigenetic alterations might arise owing to Exogenous Gonadotropins (EGs) exposure.

EGs are delivered to the ovary to a secure effective superovulation regime by controlled
ovarian stimulation (COS). It has been claimed that EGs may lead to epigenetic alterations

144
Preimplantation genetic diagnosis and screening: Current status and future challenges. (2017,
September 6). Preimplantation Genetic Diagnosis and Screening: Current Status and Future Challenges -
ScienceDirect. https://doi.org/10.1016/j.jfma.2017.08.006 (last visited 29.07.2023)

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Epigenetic effects on the embryo as a result of periconceptional environment and assisted reproduction
technology - PubMed. (2013, November 1). PubMed. https://doi.org/10.1016/j.rbmo.2013.06.003 (last
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Effects of oocyte vitrification on epigenetic status in early bovine embryos. (2016, March 12). Effects of
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https://doi.org/10.1016/j.theriogenology.2016.03.008 (vast visited 28.07.2023)

52 | P a g e
 147
in four imprinted genes, peg1, kcnq1ot1, zac, and h19 , and may affect oocyte and
embryo development 148.

The purely clinical character of IVF does not allow for any effort to comprehensively study
the pre-implantation embryo on an epigenetic evaluation level, since these embryos are
meant for implantation and/or cryopreservation.

However, the work by Ventura-Lunca et al. indicated that these imprinted genes are
connected with embryonic growth retardation and difficulties with placental
development149. Therefore, one may deduce that these adverse epigenetic modifications
impose a harmful influence on the preimplantation phase of growth. Whether the errors in
peg1 gene and the methylation of h19—while the pre-implantation period—are related to
superovulation, the patient's age, and the postponed oocyte maturation or whether they
were inherited, research in human models show ambiguous results.

The imprinting abnormalities implicated may lead to clinical consequences in ART, such as
inability of the embryo to be implanted, spontaneous miscarriage, and/or fetal growth
retardation ascribed to malfunctioning placentas150. The data presented should be further
and properly reviewed before to commenting on the real effects of COS.

2.2. Risk Factors Related to ICSI Practice

In a surrogate cycle, wanting to obtain the maximum fertilization rates, ICSI

(Intracytoplasmic sperm injection) may be utilised as the procedure of choice. using the

147
Supra 99
148
ibid
149
Supra 99
150
Ovulation induction and epigenetic anomalies - PubMed. (2013, March 1). PubMed.
https://doi.org/10.1016/j.fertnstert.2012.12.047 (last visited 28.07.2023)

53 | P a g e
basis that fertilization outcomes using ICSI are claimed to be greater than traditional IVF151,
frequently this appears to be a welcomed method for both patients and practitioners152.

However, is it reasonable to generalise that surrogacy cycles within the IVF profession are
connected with larger percentages of ICSI practice? The insemination method of ICSI may
be associated to additional damage of the embryo owing to its intrusive character. In
compared to the traditional IVF insemination procedure, ICSI is a process that overturns
the process of natural selection.

An example of such is the override of the biological sperm processes engaged during
fertilization, such as, acrosomic reaction153. Selecting the most appropriate sperm for ICSI
on the basis of morphology comes with tremendous responsibility, as in vivo the technique
of insemination is accomplished through stringent natural selection criteria. In this
approach, spermatozoa with decreased mobility or enhanced aberrant morphology may be
used during ICSI in situations of male factor infertility and therefore lead to greater risk of
de novo chromosomal defects in the ICSI progeny.

Studies in mice models revealed that male ICSI offspring containing DNA fragmented
sperm had lower reproductive potential154. Undoubtedly, ICSI is regarded a safe, effective,

151
Wang, S. S., & Sun, H. X. (2014, April 1). Blastocyst Transfer Ameliorates Live Birth Rate Compared
with Cleavage-Stage Embryos Transfer in Fresh In Vitro Fertilization or Intracytoplasmic Sperm Injection
Cycles: Reviews and Meta-Analysis. PubMed Central (PMC). https://doi.org/10.3349/ymj.2014.55.3.815
(last visited 28.07.2023)
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journal=Systems+Biology+in+Reproductive+Medicine&title=Improving+ICSI:
+a+review+from+the+spermatozoon+perspective&author=M.+Simopoulou&author=L.
+Gkoles&author=P.+Bakas&volume=62&issue=6&publication_year=2016&pages=359-
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154
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journal=Best+Practice+&+Research+Clinical+Obstetrics+&+Gynaecology&title=Genetic+and+epigenetic
+risks+of+assisted+reproduction&author=Z.+Jiang&author=Y.+Wang&author=J.+Lin&author=J.
+Xu&author=G.+Ding&volume=44&publication_year=2017&pages=90-
104&pmid=28844405&doi=10.1016/j.bpobgyn.2017.07.004& (last visited 28.07.2023)

54 | P a g e
and widely adopted method of insemination that has not been especially connected with
increased chromosomal or neonatal abnormalities155.

Yet, on account of the actuality that ICSI procedures has emerged in the latter part of the
nineties156 the correlation of ICSI procedures and the offspring' well-being has to be
examined more thoroughly to delineate whether the procedure or the couple's genetic
background could be accountable for any future trends or observations.
2.3 Risk Elements Related to Embryo Culture

It is standard to choose blastocyst culture in order to provide the maximum implantation

potential for embryos created in an IVF facility and used in a surrogate cycle. The risks
or equivocal effects of extended culture and its impact on the physiology and epigenetic
of preimplantation embryos have been vigorously disputed 157, despite the practice's many
advantages158.

To our knowledge, research on blastocyst cultivation and surrogacy has yet to be

released. However, based on our vast clinical expertise and information gleaned from
published research that is currently accessible, blastocyst culture seems to be the
preferred culture technique for managing surrogate cycles.

It has been noted by several studies that media and cultural circumstances can have a
significant impact on embryonic development and epigenetics 159. Some negative trends,
such as abnormal implantation, low implantation rate, developmental pace disorders,
poor embryo quality, reduced trophoblast development, and decreased embryo cell
number, can be attributed to the culture medium.

In animal studies, a seemingly minor modification to a medium formulation, such as

adding serum, could have significant neonatal consequences. Additionally, elevated
oxygen concentrations have been linked to changes in embryonic metabolism, protein
synthesis, and function.

Embryo manipulation during assisted reproductive technology (ART) is not without its
risks. The transfer of a euploid embryo to the surrogate mother is crucial to minimize the
155
Supra 109
156
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157
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+Integration+of+array+2017&author=E.+S.+Sills&publication_year=(September+2013)& (last visited
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158
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159
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55 | P a g e
chance of miscarriage, termination of pregnancy, or live birth related to a gestational
disorder160. Preimplantation Genetic Diagnosis and Screening (PGD/PGS) can be used to
identify chromosomal abnormalities and monogenic disorders to select the best embryo
for transfer161.

However, some patients may opt for surrogacy instead of PGD/PGS, and some may even
choose to subject their embryos to further manipulation, such as PGS, to enhance the
selection process and increase the success rate 162. It is important to consider the bioethical
questions raised by such practices, particularly when it comes to the possibility of
selecting embryos of "choice" and entering the dangerous territory of eugenics. We must
weigh the advantages and disadvantages of these practices and report on the benefits and
risks involved163.

It is essential to consider various embryo biopsy strategies, including blastomere biopsy

at the cleavage stage, trophectoderm biopsy at the blastocyst stage, polar body, and
morula biopsy. Careful embryo manipulation during biopsy should be ensured to
maintain its viability164. It should be noted that this highly invasive process is associated
with negative effects in animal studies165.

Biopsy of 1-2 blastomeres at the cleavage stage has been shown not to have a negative
effect on further embryo development166. However, studies on animal models suggest that
increased body weight coupled with impaired acoustic habituation in male mice offspring
may be related to protein alteration due to PGS biopsy. Nevertheless, it is still unclear
whether any adverse obstetric and neonatal outcomes can be attributed to biopsies
performed for PGD or if they are strictly a result of de novo alterations or the parental
profile contribution.

When contemplating embryo biopsy methods, it is crucial to keep in mind the possible
negative effects that come with this intrusive procedure. Although taking a biopsy of 1-2
blastomeres at the cleavage stage has been shown to have minimal impact on the

160
Cimadomo, D., Capalbo, A., Ubaldi, F. M., Scarica, C., Palagiano, A., Canipari, R., & Rienzi, L. (2016,
January 28). The Impact of Biopsy on Human Embryo Developmental Potential during Preimplantation
Genetic Diagnosis. PubMed Central (PMC). https://doi.org/10.1155/2016/7193075 (last visited
28.07.2023)
161
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162
Ibid
163
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164
Canovas, S., Ivanova, E., Romar, R., García-Martínez, S., Soriano-Úbeda, C., García-Vázquez, F. A.,
Saadeh, H., Andrews, S., Kelsey, G., & Coy, P. (2017, February 1). DNA methylation and gene expression
changes derived from assisted reproductive technologies can be decreased by reproductive fluids. PubMed
Central (PMC). https://doi.org/10.7554/eLife.23670 (last visited 28.07.2023)
165
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166
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56 | P a g e
embryo's development, studies on animals suggest that protein alteration due to PGS
biopsy may be linked to increased body weight and impaired acoustic habituation167.

Therefore, it is important to handle the embryo with the utmost care during biopsy to
ensure its viability168. In cases where PGS is used for surrogacy purposes, vitrification is
necessary to allow for genetic analysis to be carried out, but the transfer of the embryo is
postponed to a later stage169.

While the cryopreservation of embryos or blastocysts is generally deemed safe with no

significant genetic or epigenetic risks, embryo manipulation should only be conducted
based on valid medical grounds and not solely to fulfill a patient's desires. It is essential
to carefully weigh the potential risks and benefits of these procedures before moving
forward.

2.4 Risk Elements Coupled with the Embryo Transfer Process

When deciding on the number of embryos to transfer, it is important to consider the

potential risks associated with multiple gestation and preterm birth. Elective single
embryo transfer (eSET) is generally regarded as the best approach to limit these risks.
However, it is important to carefully weigh the potential risks associated with prolonged
culture and PGS application before considering these techniques.

Time-lapse imaging has recently emerged as a promising tool for embryo selection, as it
may help to identify aneuploid embryos and minimize events of epigenetic changes.
Ultimately, the goal is to minimize the invasive nature of IVF, and time-lapse imaging
presents a promising first step in this direction170.

3. The Gestation and Fetus: Risk Factors

In contrary to normal conceptions, pregnancies arising from ART cycles—including

surrogacy arrangements—may be connected to higher risk of perinatal problems. It has
been revealed that the perinatal results of gestational surrogacy in contrast to autologous
IVF reflect no notable increase in the chances of preterm delivery, the live birth rate, and

167
Carp, H., Dirnfeld, M., Dor, J., & Grudzinskas, J. (2004, July 1). ART in recurrent miscarriage:
preimplantation genetic diagnosis/screening or surrogacy? OUP Academic.
https://doi.org/10.1093/humrep/deh293 (last visited 28.07.2023)
168
Steckler, T. (2015, January 13). Editorial: preclinical data reproducibility for R&D - the challenge for
neuroscience - SpringerPlus. SpringerOpen. https://doi.org/10.1186/2193-1801-4-1 (last visited
28.07.2023)
169
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170
Simopoulou, M., Sfakianoudis, K., Tsioulou, P., Rapani, A., Anifandis, G., Pantou, A., Bolaris, S.,
Bakas, P., Deligeoroglou, E., Pantos, K., & Koutsilieris, M. (2018). Risks in Surrogacy Considering the
Embryo: From the Preimplantation to the Gestational and Neonatal Period. BioMed Research International,
2018. https://doi.org/10.1155/2018/6287507 (last visited 28.07.2023)

57 | P a g e
congenital defects171. Beyond that, it was anticipated that oocyte donation indicates
inadequate fetal immunological modification to allogeneic antigen.

As a consequence, gestational surrogacy seems to be linked with a greater incidence of

hypertensive problems than autologous IVF172. Previous exposure of the embryo to
culture media in the IVF set-up might lead to perinatal issues as well, such as imbalanced
fetal placenta formation, aberrant fetal development, and reactions to metabolism 173. An
enhanced pressure in 21-week-old rat with prior IVF culture has been shown, as well as a
small anxiety, psychomotor function, and unique memory in mice embryos174.

In certain IVF cases, multiple embryos are transferred in order to boost implantation
rates. This technique is also adopted and maybe even intensified in the circumstances of
surrogacy, resulting in numerous gestations with the obstetric and neonatal problems that
these may imply175. In comparison to women undergoing standard IVF, IVF-surrogates
have a lower incidence of complications during their third trimester, including
pregnancy-induced hypertension, placenta abruption, diabetes mellitus, and hemorrhage,
regardless of whether the pregnancy was multiple or singleton.

Yet it was obvious that IVF surrogacy involving numerous gestations is related with
higher risk of preeclampsia, postpartum hemorrhage, hysterectomy, and gestational
diabetes176. In addition to the foregoing, numerous pregnancies are connected to greater
risk of hyper emesis and anemia177. In view of the aforementioned, numerous gestations
—especially in surrogate cycles—should be avoided; hence supporting eSET practice is
strongly advised178. In circumstances of multiple gestations combined with complex
obstetric problems, selective feticide may be a possibility.

Nevertheless, it is a dangerous option. Performance of fetal intracardiac injection of

potassium chloride for selective feticide has been re-evaluated owing to the considerable
danger it provides to the fetus not treated to the technique 179. The use of radiofrequency
171
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172
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173
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+timing+and+conditioned+media&author=R.+L.+Kelley&author=D.+K.
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Parkinson, J., Tran, C., Tan, T., Nelson, J., Batzofin, J., & Serafini, P. (1999, March 1). Perinatal
outcome after in-vitro fertilization-surrogacy. OUP Academic. https://doi.org/10.1093/humrep/14.3.671
(last visited 28.07.2023)
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178
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179
Correlations of placental vascular anatomy and clinical outcomes in 69 monochorionic twin
pregnancies - PubMed. (1996, January 22). PubMed. https://pubmed.ncbi.nlm.nih.gov/8741867/ (last

58 | P a g e
ablation stopping blood supply to the chosen baby is viewed as possibly being the most
effective approach at any gestational age 180. It is contested whether couples have the right
to opt for selective feticide, given there is greater contact between the surrogate's body
and the growing fetuses.

The particular circumstances and distinctive characteristics of surrogacy, the connection,

and the standards of the commissioning couple/person regarding the surrogate might
complicate administration. This is a scenario obviously lacking control, a circumstance
which undoubtedly may build the framework for a pregnancy coupled with an additional
degree of stress elements181.

As a result of maternal stress, the hypothalamus-pituitary-adrenal cortex system, or HPA,

is activated, along with the sympathetic system, which results in the release of hormones,
including CRH (corticotrophin-releasing hormone), ACTHAs a result of maternal stress,
the hypothalamus-pituitary-adrenal cortex system, or HPA, is activated, along with the
sympathetic system, which results in the release of hormones, including CRH
(corticotrophin-releasing hormone), ACTH (adrenocorticotropin-releasing hormone),
cortisol, adrenaline, and noradrenalin in the maternal blood 182. (adrenocorticotropin-
releasing hormone), cortisol, adrenaline, and noradrenalin in the maternal blood 183.As a
result of maternal stress, the hypothalamus-pituitary-adrenal cortex system, or HPA, is
activated, along with the sympathetic system, which results in the release of hormones,
including CRH (corticotrophin-releasing hormone), ACTH (adrenocorticotropin-
releasing hormone), cortisol, adrenaline, and noradrenalin in the maternal blood 184. It is
obvious that maternal stress may harm the unborn infant via the release of mother's
stress-related hormones (such as ACTH, CRH, prolactin, and oxytocin).

The higher levels of the aforesaid hormones are related with decrease of uteroplacental
blood flow, resulting to fetal development restriction (IUGR: Intrauterine development
Restriction)185. Interestingly, it has been analysed by ultrasound examination that babies
of extremely nervous mothers at the 36 gestational weeks display greater physical
activity186.

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180
Selective reduction in complicated monochorionic twins: prediction of obstetric outcome and
comparison of techniques - PubMed. (2015, December 1). PubMed. https://doi.org/10.1002/uog.14879 (last
visited 28.07.2023)
181
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182
Prenatal maternal stress: effects on pregnancy and the (unborn) child - PubMed. (2002, December 1).
PubMed. https://doi.org/10.1016/s0378-3782(02)00075-0 (last visited 28.07.2023)
183
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184
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185
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186
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59 | P a g e
 What is more, the elevated amounts of hormones may suggest and lead to automatic
abortion, structural defects, and preeclampsia. This may be the consequence of
melancholy or anxiety during the first trimester, along with elevated levels of placental
CRH and reduced head size, impairing brain development187.

Maternal hormones, such adrenalin, are created in maternal blood in circumstances of

fear and/or soreness and cause the stress' signs of tachycardia and breathing acceleration.
Additionally, maternal stress during the third trimester adds to preterm uterine activity,
resulting too premature delivery, whereas maternal stress in the initial trimester
sometimes results in low birth weight188.

During the fetal time, the surrogate mother needs to adhere by all established constraints,
since she is subject to the same pregnancy hazards as any pregnant woman. This suggests
that she is prone to ectopic pregnancy or perhaps miscarriage189.

Conformation to constraints means avoiding drugs or alcohol usage. In this method,

concerns of structural and functional irregularities which might lead to adulthood
physical or mental problems are reduced. What is more, the surrogate mother—equally to
any pregnant woman—should adopt an optimal diet, as nutrition deficit might
irreversibly impair the development or function of a particular organ190.

Beyond any question the psychological and psychological conditions of the surrogate
have a key impact in the wellness of the fetus. Developed from the conduct and/or the
stress intensity of the surrogate, her condition may translate physiologically to negative
inherent variables that impact the health and development of the baby.

Could it be that the probable lack of acceptance of the surrogate towards accepting the
embryo and baby as her own and the likely lack of optimistic perspective of the
pregnancy may offer a danger to the development of the fetus? It is hypothesized that the
pregnant mother may assist to fetal growth, via epigenetic, microchimerism (cells are
exchanged between the fetus and mom via placenta), and delivery of both antigens and
nutrients191.

Fetal awareness develops from the uterus through nursing phase and various
physiological, emotional, or external factors impact its development. Consequently,
maternal approval or disapproval might be a stimulation imprinted in human cells.
Medical data demonstrates that higher stress chemicals in maternal blood, which include
187
Supra 136
188
Google Scholar. (n.d.). Google Scholar. https://scholar.google.com/scholar_lookup?
journal=Childhood+stress&title=Prenatal+stress&author=L.+C.+Huffman&author=R.
+del+Carmen&publication_year=1990&pages=142-171& (last visited 28.07.2023)
189
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190
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191
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60 | P a g e
adrenalin, pierce placenta and infiltrate to fetal circulation, producing fetal fast pulse or
breathing acceleration192.

Dar's fascinating research, which looked at data from a significant surrogacy programme
and examined all problems from the medical to the psychological to the legal, found that
the average gestational age at delivery was 37,9 weeks for surrogacy cases overall, and
particularly 38,9 weeks for singlet and 35,8 weeks for multiple deliveries193.

These findings seem to be analogous to those of earlier research. Due to the circumstance
that surrogate mothers had a history of past pregnancies that were healthy without any
issues, the maternal issue rate reported by Dar et al. was 9.8%, which is quite low. Only
1.8% of fetal malformations are reported in the same research, which may be related to
the comprehensive obstetric history checks that substitutions undergo or the reality that
surrogacy is often made possible via oocyte donation194.

Candidates for surrogacy are carefully scrutinized, their backgrounds are well
investigated, and their medical profiles are often excellent. However, not all of the
aforementioned requirements are necessarily met by women who deliver naturally. In
contrast to the idea that problems and complexity may be increased in surrogacy cycles,
beneficial outcomes associated with surrogate complexities may thus be predicted.

2.5 Risk Factors Related to the Neonatal and the Period Thereafter

Whether variables associated with the surrogate conception make their way towards
altering the newborn and the time after is an issue under inquiry. Numerous studies
recommend that ART offspring—and that expands to surrogacy cases—are susceptible to
cardiovascular diseases, showing higher blood pressures, overweight caused by insulin
resistance and impeded glucose metabolism, and thyroid dysfunction using excessive
levels of thyroid-stimulating hormone (TSH)195.

On the other hand, there are studies showing that IVF procedures may not extend to
burdensome prenatal and neonatal issues. The research by Chian et al. 2008 studied 200
newborns emanating from three separate facilities in Canada, born through vitrified
oocytes, and determined that vitrification had no impact on the fetus & baby196.

192
Supra139
193
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194
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195
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journal=Best+Practice+&+Research+Clinical+Obstetrics+&+Gynaecology&title=Genetic+and+epigenetic
+risks+of+assisted+reproduction&author=Z.+Jiang&author=Y.+Wang&author=J.+Lin&author=J.
+Xu&author=G.+Ding&volume=44&publication_year=2017&pages=90-
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Obstetric and perinatal outcome in 200 infants conceived from vitrified oocytes - PubMed. (2008, May
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61 | P a g e
As indicated above, the practice of numerous embryos incorporated in the ET may result
in the numerous gestations typically found in surrogacy cycles. These may result in
premature labour and delivery, in compared to singleton 197. Consequently, newborns
appear with inadequate birth weight or they lack to maintain potentially even owing to
preterm alone or coupled by a deformity or anomal 198. Furthermore, neonates of multiple
gestations may appear with speech impairments and developmental handicaps 199, in
addition to cerebral palsy200.

What is more, preterm, directly associated with multiple gestations, leads to congenital
abnormalities and higher rates of caesarean sections, in contrast to singleton 201.
Contrariwise to the preceding, a follow-up on kids born via numerous or singleton IVF
surrogacy indicated that motor deficits were resolved by the second term of their life 202.
On the other hand, single embryos arrive with no more physical defects, taking into mind
that faulty embryos sometimes fail to implant.

This is in contradiction to multiple gestations, which seem to be related to low-birth

weight newborns and/or with modest heart and lung abnormalities 203. Multiple gestations
linked with difficulties in surrogate pregnancy may be prevented by choosing eSET as
stated above and handled applying the approach of selective feticide. This, particularly in
complicated circumstances, may encompass a therapeutic character by ensuring safer
settings for the surrogate's health and also for the child.

Still, it is ideal to avoid reaching the stage where it becomes mandatory and purposeful
feticide becomes a possibility. The problems linked with its implementation are many.
Neurodevelopment impairment, encompassing cognitive, motor, & behavioural
characteristics, has been observed in 6.8% of the reported instances after selective
feticide, however, this result seems to be more prevalent in contrast to the wider
population204.

The answer to issues deriving from numerous gestations is for the IVF arrangements to
push further the procedure of elective singleton embryo transfer to prevent multiple
gestations and the high hazards related to them. 205The Ethics Board of the American
Society for Reproduction (ASRM) emphasizes the necessity for the gestational surrogate

197
Supra 130
198
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199
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200
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201
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202
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Surrogacy with IVF carries biological risks - PubMed. (1986, August 1). PubMed.
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Long-term neurodevelopmental outcome after selective feticide in monochorionic pregnancies - PubMed.
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205
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62 | P a g e
to be properly safeguarded, by inclusively educating her on all the probable hazards
multiple pregnancies involve. On that idea, it becomes evident that the ultimate choice
about the total number of embryos to be implanted should be that of the surrogate.206

The diet of the surrogate is a crucial issue that might pose a danger. Lack of nourishment
during pregnancy plays a crucial function in the child's or perhaps the adult's health, as it
is sometimes responsible for the emergence of cardiovascular illnesses, allergies,
hypertension, diabetes, and possibly schizophrenia207. This is also reinforced by the
Barker theory, according to which the formation of metabolic disorders in adulthood may
be ascribed to the mother's starvation during pregnancy208.

To apply this to the IVF setting, it has been established that there is an obvious
correlation between protein deficit in embryo culture medium and the kids' birth
weight209. Information relating nutrition of the surrogate is rare and difficult to monitor or
record specifically in reflection of prenatal data. Therefore, particularly in light of the
dearth of information, it is necessary to analyze the manner and intensity of the
relationship between the nutrition of the surrogate and concomitant effects on the
offspring.

The emotional state of the surrogate throughout gestation might have a harmful influence.
This extensive search could not discover research reporting on whether mother stress
levels are greater during surrogate pregnancies in comparison with non-surrogate
pregnancies. This fact may reveal a deficiency in the literature. Generalized population
studies demonstrate a strong connection between maternal stress and poor birth weight or
preterm birth210.

Neonatal research on babies from very worried moms observed frequent weeping
throughout the initial seven months of life as well as neonates characterized by
irritability, abnormal biological processes, and gripes. Subsequently, at the age of nine,
these children were categorized as hyperactive and poor sleepers 211. Prenatal maternal
stress has a significant impact on children's behaviour, as research revealed that newborns
were classed as antisocial and had a low frustration threshold212.

Ward's research established an association between the development of juvenile

psychopathologies and several prenatal variables, such as mother's chronic or prenatal
anxieties and stress, maternal approval of pregnancy, and certain extreme bodily

206
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207
Supra 99
208
Supra 99
209
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210
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211
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212
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63 | P a g e
responses to pregnancy like vomiting213. Psychiatric examinations demonstrated that
mother stress while pregnant plays a vital contribution to the formation of Attention
Deficit Hyperactivity Disorder (ADHD), schizophrenia, and depression. Particularly,
distressed people have elevated levels of blood cortisol and CRH hormones214.

Offspring born via gestational surrogacy is safeguarded legally by the complete

confidentiality of the donor and surrogate mother data. Yet, the infant has the right to be
told in a particular manner about the method by which he or she was born and to
know his/her origins broadly215. Many studies report a favourable child's response when
information is given about surrogacy, either conventional or gestational216.

The study of prenatal as well as perinatal psychology demonstrates that every input
transmitted to the child's awareness greatly impacts its conduct as an adult, both physical
health and mental stability. Moreover, it determines the connections that the kid makes
throughout life. Besides that, several clinical studies think that the embryo's conscience is
created during the prenatal period and that its impressions and the sentiments of the
surrogate throughout gestation may affect newborn development dramatically. Medical
data supports the concept that numerous neurohormones are transmitted from mother to
fetus throughout pregnancy.

These are important for prenatal brain development, proper neural system operation, and
subsequent children's self-confidence and intellect 217. Good communication and
sentiments of acceptance work efficiently on the interaction between mother and fetus
and subsequently contribute to critical developmental features expanding even to the
child's speaking capacity218.

It could be that trigger points relating to the psychological condition of a pregnant woman
are the same among surrogates and non-surrogates. If it can be fairly assumed, then
negative influences such as prenatal mother stress, perceptions, and sentiments are likely
to affect both groups to the same extent. However, is it similarly reasonable to presume
that such challenges and harmful consequences, would burden the babies of a surrogate
conception further?

213
Prenatal stress and childhood psychopathology - PubMed. (n.d.). PubMed.
https://doi.org/10.1007/BF00707788 (last visited 28.07.2023)
214
Supra 136
215
An overview of surrogacy around the world: trends, questions and ethical issues - PubMed . (2012, July
1). PubMed. https://doi.org/10.1111/j.1751-486X.2012.01734.x (last visited 28.07.2023)
216
Armour K. L. An Overview of Surrogacy around The World: Trends, Questions And Ethical
Issues. Nursing for Women's Health. 2012;16(3):231–236. doi: 10.1111/j.1751-486X.2012.01734.x. (last
visited 28.07.2023)
217
Supra 142
218
Supra 76

64 | P a g e
Additional research is necessary to enhance our understanding of such vital topics on
surrogacy. Could it be that a surrogate's pregnancy, regardless of whether it is a result of
permission and informed choice of the surrogate, may vary concerning the sentiments
involved surrounding a naturally occurring wanted pregnancy?

About the psychological influence on surrogate children, there are several distinct
accounts. Surrogate children do not vary in their behaviour219. These infants, at the age of
two, appear to have no issues in integrating into society and their emotional and mental
growth. Later, at the tender ages of three, seven, and ten, their mental prosperity was
shown to be at identical levels as the rest of the peer-to-peer children220.

Another research assessed the influence of surrogacy—genetically connected or not—on

children's emotional and psychological wellness over the initial three years of their
existence, including throughout their preschool years at the tender age of seven. The
findings measured family processes, including warmth, communication between
members, and conflict. The research revealed that, at ages of one, two, and three, children
were largely oblivious of the method they were born and family interaction looked to be
warmer and more joyful, in contrast to family procedures involving normally produced
children.

subsequently, at the age of seven, children displayed a more favourable connection with
their moms, in contrast to natural conception households. The research found that family
framework, for instance, male same-sex or lesbian households, seemed not to affect the
children's mentality, as a good quality of family interaction was observed 221. In
furtherance of this, a comprehensive evaluation comparing infants born via gestational
surrogacy and those born utilising fresh IVF indicated there wasn't any psychological
difference up to 10 years222.

On the contrary, progress data from undesired pregnancies demonstrate that seven-
month-old newborns appeared with constant screaming and erratic biological processes.
Following up on these youngsters at the age of nine indicated that they appeared with
aggressive conduct, while their focus was readily interrupted 223. In conclusion, it may be
interesting to study the notion that the individual who takes responsibility for the children
throughout life may impose epigenetic effects on them224.

This, surrogacy appears to be a viable option for treating infertility in specific cases, with
promising and significant results. Studies have shown that surrogacy and IVF cycles have
219
Supra 77
220
Supra 76
221
Children of surrogate mothers: psychological well-being, family relationships and experiences of
surrogacy - PubMed. (2014, January 1). PubMed. https://doi.org/10.1093/humrep/det410
222
Supra 75
223
Supra 149
224
Supra 76

65 | P a g e
similar success rates, as the two procedures often go hand in hand. In this literature
review, our focus was on the embryo at all stages, from pre-implantation to neonatal and
post-natal, highlighting the associated risks. It was evident that there are similarities and
differences in the management of surrogate and IVF embryos, as expected. The aim of
this research was to clarify these similarities and differences, considering the potential
risks and clinical practices involved. It is important to note that any challenges that arise
from the IVF process for surrogacy require a more complex treatment than regular IVF
cases.

Therefore, it is crucial to extensively study and understand the surrogate embryo, fetus,
neonate, and newborn, as the risks associated with each can vary. A deeper understanding
of these variances is essential for safer practice225.

3. Technological Developments and Their Consequence on Women's

Procreation Rights and Medical Care
Reproductive healthcare is a crucial component of women's health and reproductive
rights, and improvements in technology have the potential to revolutionize the business.
Reproductive rights and healthcare are growing more complicated and sophisticated,
creating important ethical and security challenges that need to be fully investigated. Gene
editing, which allows scientists to change genes to remove genetic disorders or promote
certain attributes, is one of the most significant discoveries in reproductive science.

The morality of modifying an embryo's genetic composition creates ethical problems

surrounding this technique, particularly as it has the potential to remove hereditary
ailments and improve quality of life. Additionally, there is a potential that unforeseen
consequences might damage future generations. Therefore, it is vital to properly control
this technology and make certain that any ethical and safety implications are handled
before it is widely employed226.

Artificial wombs, which enable a baby to grow outside of the body of a female, are
another optimistic technical achievement. While this technology may assist women who
are unfit to carry a pregnancy or those who possess high-risk infants, it also generates
moral and ethical considerations.

In particular, there are fears about the psychological ramifications of carrying a

pregnancy in an artificial womb since it may influence the formation of the embryo and
the bond about the mother and child. Likewise, it's crucial to make certain that this sort of
equipment doesn't replace biological pregnancy or act as a tool for regulating women's
bodies.
225
Supra 124
226
Shrage, L. (2002). From reproductive rights to Reproductive Barbie: Post-porn modernism and abortion.
Feminist Studies, 28(1), 61. https://doi.org/10.2307/3178495 (last visited 23.07.2023)

66 | P a g e
Another fascinating development that might increase the outcomes of fertility therapy is
the use of CRISPR in reproductive healthcare. However, new technology also throws up
questions about safeguards and morality around the manufacturing of 'designer babies it
is vital to make certain the ethical problems posed by the use of CRISPR in reproductive
healthcare are adequately addressed and that it’s careful supervision. Furthermore,
particularly for underprivileged people or those dwelling in distant place, these
revolutionary reproductive technologies are boosting access to reproductive medicine.

For instance, telehealth may give remote consultations and prescriptions, decreasing the
hurdles for women who inhabit rural or distant regions to access reproductive healthcare.
Also, women could have the convenient ability to obtain contraceptive knowledge and
reminders owing to mobile health technology like Smartphone applications.

Nevertheless, given the concerns about informing consent, privacy and access to these
technologies, it is important to take a close look at their implications for law and ethics.
Information on the benefits and risks of new technology must be adequately
communicated to citizens, as well as respecting their privacy. Moreover, it is vital to
ensure that these technologies are made available to all women regardless of their level of
income or geographical location.

3.1 Provision of the Constitution

There are constitutional provisions that can be utilized to safeguard women's medical
care and reproductive rights more generally. The Indian Constitution has multiple laws
and articles that have a huge effect on how women's medical care and reproductive rights
are developed. The right to life and personal liberty (Article 21) encompasses the
independence of reproductive choice and access to appropriate medical care227.

Women have equivalent opportunities for reproductive healthcare without encountering

discrimination based on their sex, according to the equality and non-discrimination
principles described in Article 14. Even though it isn't directly specified in the
Constitution, the court has endorsed the acknowledgement of the right to privacy,
preserving the anonymity of reproductive choices. However, the introduction of new
technology also generates ethical and legal difficulties228.

It covers concerns including privacy, consent, equality, and prejudice. Objectionable use
of these technologies can exacerbate gender inequality, undermine women's autonomy,
and promote discriminatory practices including gender determination in medical contexts
and the commoditization of female reproductive services.
227
Supreeti Singh, V. K. (2023, July 2). Emerging Technologies And Their Impact On Women
Reproductive Rights And Healthcare. Emerging Technologies and Their Impact on Women Reproductive
Rights and Healthcare. https://www.livelaw.in/lawschool/articles/emerging-technologies-and-their-impact-
on-women-reproductive-rights-and-healthcare-231677 (last visited 30.07.2023)
228
Ibid

67 | P a g e
Article 14's Right to Equality assures every individual's equality before the law and
outlaws prejudice. In the framework of reproductive freedoms and healthcare, it may be
used to challenge any unfair practices or policies that come from the utilization of
emerging technology229.

The freedom of a woman to make choices about her own body, including reproductive
alternatives, is part of her basic right to life and personal liberty (Article 21). The Indian
Apex Court has construed it to incorporate the right to receive safe and licensed abortion
services.

Informed Consent: Women are entitled to make fully informed choices regarding their
reproductive health. Ensuring women are correctly educated about the hazards,
advantages, and restrictions of evolving technology are vital. Gaining informed consent
in a manner that upholds female autonomy and assures their awareness and voluntariness
is vital.

Right to privacy (implied by Article 21 but not expressly stated): The Indian Supreme
Court has ruled that the right to privacy is a fundamental right. It may be deployed to
safeguard female autonomy and privacy in the midst of cutting-edge reproductive
healthcare technology230.

Ethical Considerations - Moral considerations concerning healthcare and reproductive

rights are highlighted by the advent of new technologies. Pre-implantation genetic
diagnosis (PGD), for example, is a sex-selective technique that may raise issues about
gender-specific inequality and selective abortions. The Constitution necessitates
regulation of developing technologies to prohibit abuse and preserve women's rights.

Suchita Srivastava v. Chandigarh Administration231

This particular instance highlighted the subject of reproductive rights and the right to
obtain safe abortion. The Apex Court of India declared that a female's reproductive
autonomy and choice of abortion are safeguarded under the basic right to privacy.

Indian Young Lawyers Association v. State of Kerala232

This issue concerns the topic of women's admittance into the Sabarimala temple in
Kerala. Despite not directly connected to new technologies, it addressed with the problem
of gender inequality and the right to enter religious places, which is tied to women's
menstrual rights and autonomy.

229
Ibid
230
Ibid
231
Suchita Srivastava and Anr Vs Chandigarh Administration (2009) 9 SCC 1
232
Indian Young Lawyers Association v. State of Kerala 2019 11 scc 1

68 | P a g e
Navtej Singh Johar v. Union of India233 consenting same-sex partnerships in India was
made legal owing to this important judgments. Although it has little to do with
reproductive rights in general, this judgments respects and defends the ideals of
individuality and privacy, that have ramifications for female access to healthcare and
reproductive alternatives.

National Legal Services Authority v. Union of India 234 Although the Supreme Court
acknowledged the significance of self-perception and liberty in terms of gender
uniqueness and expression and transgender liberties were the major focus of this
judgment. The relevance of having a full knowledge of reproductive rights that considers
the diversity of gender orientations and experiences are underscored by this case.

3.2 The Contemporary Era: Pre-formation and Genetic Predetermination

A key scientific development that placed doubt on long-held assumptions about people's
nature and reproduction was the detection of human DNA in eggs. Before this discovery,
the pre-formation idea maintained that because the new creature was supposed to be
practically complete, the driving energy for its creation emanated from a combination of
the mother and the father. It was demonstrated that females donated equally to the
hereditary makeup of their children following the detection of genetic encoding in both
sperm and eggs.

The outcome of this study did not end up resulting in a higher respect for women's
reproductive functions.

Instead, it was regarded as genetic determination, which associated nuclear DNA with
genetically parentage. The importance of gestation was minimized, and it was assumed
that the foetus' newly generated DNA was what defined it. This conception of
reproduction has important implications for how pregnancy is controlled by the law,
including issues with regard to surrogacy, artificial wombs, and rules that prevent
fatalities235.

In contemporary culture, DNA is commonly considered a blueprint or design that

symbolizes the essence of identity and uniqueness. The mother supplies the needed inputs
and outputs also protection from injury, yet it is considered that the fetus’s evolution
develops exclusively under the direction of its DNA. This perception of the embryo as
mostly finished and ready to grow, however, is simplistic and does not accurately depict
the intricate process of developing a new life236.

233
Navtej Singh Johar v. Union of India AIR 2018 SC 4321
234
National Legal Services Authority v. Union of India (2014) SCC 438
235
Smith, P. B., &Buzi, R. S. (2014). Reproductive health professionals’ adoption of emerging technologies
for health promotion. Health Informatics Journal. https://doi.org/10.1177/1460458213492525 (last visited
23.07.2023)

69 | P a g e
Two theories associated to the knowledge of heredity and the evolution of life is pre-
formation and genetic determination. Each has historical views, but they explain how
attributes are inherited and how they affect a person's growth differently.

The pre-formation theory, which was generally accepted in the 17th and 18th centuries,
posited that every creature lives in miniature, entirely formed, within the sperm or egg.
This hypothesis held that each organism had a readymade homunculus, a little replica of
itself, which developed and matured during gestation. Pre-formationists thought that
these prefabricated products possessed fixed and permanent genetic features.

Pre-formation and genetic determination is two viewpoints on heredity and the processes
of development and change. They both utilize a historical viewpoint to history, but they
present distinct explanations for how attributes are given and how they impact a person's
progress.

In accordance to the pre-formation idea, which gained favour in the 17th and 18th
centuries, every cell is existing in the sperm or egg in a tiny form that is almost
completely developed.

Pursuant to this concept, each species started life as a homunculus, a small version of
itself that grew bigger throughout pregnancy. Pre-formationists thought that the genetic
traits of these pre-made formations were permanent and unchanging.

It is vital to bear in mind that new hypotheses have evolved as a consequence of scientific
study that has rejected both pre-formation and genetic determinism.

With the incorporation of theories like gene-environment connections, epigenetic, and

complex systems approaches, our knowledge of heredity and growth has deepened.
Modern biology understands that an organism's traits and development are highly
impacted by both genetic and ambient influences.

3.3 A New Epigenetic: Resisting Dichotomies

Due to the challenge of genetic determination and the depiction of a more nuanced image
of how genes connect with the environment to impact gene expression, the research of
epigenetic has progressed in biology. Instead of perceiving humans as predetermined
entities with a constant essence, epigenetic explores the intricate interactions that arise
between genes and other possibilities during development. This perspective questions the
concept that genetic inheritance is the sole factor determining character and parentage,
deconstructing the difference between nature and nurture.

236
Ruse, M. (1996). Monad to man : the concept of progress in evolutionary biology. In Harvard University
Press eBooks. http://ci.nii.ac.jp/ncid/BA29901804 (last visited 23.07.2023)

70 | P a g e
Epigenetic, on the contrary, explains how environmental effects may have heritable
impacts that are carried hereditarily. This has been established throughout experiments
using mice and humans, where dietary adjustments or prenatal experience to hunger led
in heritable abnormalities in gene expression that altered health consequences in
succeeding generations. While challenging genetic determinism and the simplistic idea
that genes are the sole elements determining advancement, epigenetics does not eliminate
the function of chromosomes in biological transmission. Instead, it presents a more
thorough picture of how people's traits are formed by the interplay among their genes and
their circumstances.

Due to the traditional understanding of pregnancy, the implanted egg grows into a self-
sufficient, entire human being whereas the mother's womb gives the necessary nutrition
and eliminates waste. Based on this opinion, constructing an artificial womb would be as
easy as supplying it with life support, dismissing the essential function that gestation
plays in shaping fetal growth.

The doctrine and dichotomy that glorify genes as the absolute essence of motherhood and
endow them with a transcendental aspect that is above the physical are the causes of this
viewpoint's distortion. This artificial division relates to other negative dichotomies, such
as the gender division.

It is vital to appreciate that chromosomal duplication and gestation are biological

processes that give birth to who we are, and therefore the viability of manufactured
wombs is probably overblown as a result of disregarding the role of gestation in
procreation. It is essential to acknowledge the complexity of gestation and its
developmental importance rather than observing it as a mystic phenomenon that can
never be mechanized237.

3.4 Reproductive Healthcare: Technology Emerges

The method by which females acquire reproductive healthcare is shifting as a

consequence of contemporary technologies. The area of maternal healthcare has
experienced great improvement owing to a number of innovative technologies. Amongst
the key technologies that have developed are-:

• Artificial intelligence (AI): By aiding in early identification, diagnosis, and customized

treatment approaches, AI has the capacity to change reproductive healthcare. Massive
datasets may be analyzed by artificial learning algorithms to uncover patterns and risk
factors associated with difficulties with reproductive health.

237
Theories of Biological Development (Stanford Encyclopedia of Philosophy). (2022, June 3).
https://plato.stanford.edu/entries/theories-biological-development/ (last visited 26.07.2023)

71 | P a g e
• Genomic: Genomic gadgets allow for the investigation of a person's genetic data in
order to detect any possible hazards or genetic abnormalities that might influence
maternal health. It enables customized approaches to reproductive medical treatment,
like genetic diagnostics and pre-implantation diagnosis.

• Video conferencing, phone calls, and other kinds of electronic interaction enable
patient-provider engagements in telemedicine. Women in distant regions who need
access to Medical specialists may benefit immensely from this technology.

• Efficacy rates for fertility treatments may be boosted by the use of artificial intelligence
(AI) for monitoring fertility, forecasting ovulation cycles, and evaluating patient data.

• Telemedicine: By offering remote appointments and monitoring, telemedicine has

enhanced access to maternal healthcare. It makes it feasible for women who reside in
remote or impoverished places to gain access to specialist therapy, counseling, and
prescriptions despite requiring them to make in-person visits.

• Wearable Technology: Women may monitor their conception windows, track their
periodic cycles, and collect data about their fertility health with the use of wearable
technology, namely smart watches and fertility monitoring programmers. These tools
may give informative information and help in regulating fertility and family planning.

• In-vitro fertilization (IVF), intracytoplasmic sperm injection (ICSI), and cryogenic

preservation of eggs and fetuses are examples of ART. These techniques have greatly
increased success rates and provided persons and couples coping with infertility with new
choices.

• 3D printing: 3D printing has discovered utility in the area of fertility medicine, notably
in the development of individually designed medical instruments including prostheses,
implants, and anatomical models. In terms of anatomy accurate models have been
generated utilising 3D printing in the subject of reproductive medicine for operation
planning and patient counselling.

• Robotics and Minimally Intrusive Surgery: Hysterectomies, myomectomies, and tubal

sterilizations have become less invasive and more accurate owing to robotics and
minimally invasive surgical methods. These advancements lead to smaller cuts, less
scarring, speedier recoveries, and better surgical outcomes.

• The use of hereditary testing to screen for hereditary illnesses and anticipate future
health risks the kids is becoming more popular in reproductive healthcare.

• Intrauterine devices (IUDs) and hormonal devices, two of the foremost recent
discoveries in the field of contraception provided very efficient birth control for a couple
of years.

72 | P a g e
• Reproductive organ duplicates are being made utilizing 3D printing technique to help
with surgical and other treatment planning.

There are various uses for these advances in women's maternal health care.

Artificial intelligence is applied to estimate ovulation patterns and boost the success rate
of in vitro fertilization (IVF), meanwhile, telemedicine is used to deliver remote advice to
people seeking reproductive therapies. Although 3D printing is utilised to produce
models for surgical planning, hereditary testing is applied to check for prospective health
risks. Females now have more pregnancy control alternatives thanks to recent
developments in contraceptive technologies.

Reproductive treatment for women is becoming more widely accessible, more

productive, and more effective as a consequence of technological breakthroughs.

The area of reproductive treatment has been greatly influenced by technical

improvements that have offered new alternatives, better diagnosis and therapies, and
increased accessibility to care. Some highlights of emerging reproductive
healthcare technologies:

In vitro, fertilization is ART that involves fertilizing an egg with sperm outside the body
(IVF). It has altered the method infertility is handled and assisted numerous individuals
and couples in becoming pregnant. IVF permits the selection of viable embryos pre-
implantation, improving the probability of a successful conception while enabling the
screening of hereditary problems.

Before implantation, Genetic Testing (PGT) is a process that analyses embryos for
hereditary abnormalities previous to implantation and is applied in combination with IVF.
It permits the detection of certain genetic abnormalities, genetic disorders, or
aneuploidies. PGT minimizes the danger of spreading genetic abnormalities to infants
and assists in the identification of embryos with a higher possibility of growing into
normal pregnancies.

Non-Invasive Prenatal Testing (NIPT) is a diagnostic process that may uncover

distinctive chromosomal defects in a developing baby. It comprises analyzing fetal DNA
obtained from cell-free fetuses through a mother's blood sample. NIPT may offer early
insight into the risk of disorders like Down syndrome as it is less intrusive than standard
diagnostic methods like amniocentesis or chorionic villus collection.

Reproductive applications and wearable: As smart phone apps and gadgets grow more
prevalent, consumers may monitor their menstrual phases, keep a watch on fertility signs,
and get individualized knowledge about their biological health. Offering customers more

73 | P a g e
information about their reproductive patterns, these technologies help them to make
sensible judgments regarding family planning, birth control, and pregnancy.

It is vital to note that, despite the enormous advancements and advantages afforded by
these innovations, they also pose moral dilemmas addressing topics including privacy,
consent, equity, and the risk of misuse. To ensure that these technologies are employed
responsibly, respecting individual rights to reproductive freedom and supporting
equitable access to healthcare, strong ethical structures and legislation are essential.

3.5 Implications of Artificial Wombs

Artificial wombs, commonly known as ectogenesis / in vitro gestation, are study tools
designed to offer growing embryos or fetuses a location to grow outside of the female
body.

While they are yet in the early stages of research, artificial wombs offer the potential for
a broad variety of purposes in the area of reproductive healthcare. A few probable uses
for artificial wombs consist of:

Supporting Pre-term Babies: Premature birth is a substantial contributor to infant

mortality and can have a detrimental influence on long-term health. Preterm newborns
could be able to extend their gestation until they reach a viable stage in a controlled
environment that resembles the conditions of a natural womb owing to artificial wombs.

Enhancing Assisted Reproductive Technologies (ART): The success rates may be

enhanced by using artificial wombs such as in vitro fertilization (IVF), and ART
procedures. Embryos could be put in an artificial womb rather than the uterus so they
may develop and grow in ideal conditions before being subsequently transplanted into the
mother's womb.

Research and progress: In an attempt to better study initial embryonic growth and the
factors that impact it, artificial wombs may provide researchers with a distinctive
platform. They give an opportunity to learn more regarding the physiology of the
growing fetus, the progress of its organs, and the consequences of various therapies or
drugs used during pregnancy.

High-Risk Pregnancies: An artificial uterus could be a temporary repair in

circumstances if a mother's health is in peril or when there are genetic disorders that are
effectively addressed outside the uterus. This might allow for tighter monitoring and
specialized treatment, decreasing dangers to both the woman and the baby.

Ethical Considerations: An artificial uterus may create ethical problems and provide
possibilities for gestation outside of regular pregnancy. They might give a viable
alternative for gestational surrogacy eliminating the requirement for another woman's

74 | P a g e
body to bear the pregnancy. Artificial gestation technology might provide an empowering
tool for women by alleviating them of the physiological and emotional weight of
pregnancy without passing these hazards to other women. This technology might enable
women to produce children without suffering the hazards associated with a conventional
pregnancy. Firestone called for a fundamental reconstruction of society, which included
the destruction of the structure of the family; emancipation from pregnancy was simply
one factor in promoting women's equality. But some feminist writers have quite explicitly
praised reproductive technique as a way to sex equality, since it might lessen the mother's
function in childbearing, therefore alleviating women of their overwhelming physical
load. In addition, it could equalize the playing field in domestic life by letting
males procreate without a female's spouse or gestational surrogate238.

Fear that artificial uterus would only be accessible to the rich might overshadow the
potential advantages for women, notably as liberation from the dangers and costs of
pregnancy. As is currently the case with expensive newborn therapies and infertility
therapies, this gap in access to reproductive technologies might strengthen preexisting sex
discrimination and class-based hierarchies. The cultural split of mothering tasks into
metaphysical and mundane aspects allows high-status women to maintain occupations
outside the house while transferring the actual care of their infants to lower-status
females. This distinction might open the way for women of greater prominence to
undertake roles normally held by males without challenging established gender norms.

Another worry about the possible loss of money for impoverished women who participate
in surrogacy arrangements if artificial uteruses are only accessible to the rich,
notwithstanding the fact that other people argue that this is still better than the
uncontrolled surrogacy business. Artificial wombs might either help or hinder women as
a category, depending on concerns like availability, legislation, and cultural perspectives
regarding gender and socioeconomic stratification.

Some have advocated the development of artificial wombs as a potential remedy to

numerous problems associated with pregnancy. Proponents of the technique say that it
would assist women by offering them an option other than the laborious and possibly
risky procedure of producing a biological child. Critics, however, claim that this
technology would likely only be available to the rich, thereby exacerbating racial and
economic gaps that currently exist239.

Some individuals assume that the baby would be safer in an artificially created mother
because it would be sheltered from the mother's possibly detrimental habits and nutrients.
238
Meloni, M., &Testa, G. (2014). Scrutinizing the epigenetics revolution. Biosocieties, 9(4), 431–456.
https://doi.org/10.1057/biosoc.2014.22 (last visited 27.07.2023)
239
Rolfo, A., Nuzzo, A. M., De Amicis, R., Moretti, L., Bertoli, S., & Leone, A. (2020). Fetal– Maternal
Exposure to Endocrine Disruptors: Correlation with Diet Intake andPregnancyOutcomes. Nutrients,
12(6),1744. https://doi.org/10.3390/nu12061744 (last visited 27.07.2023)

75 | P a g e
This argument, however, hinges on a damaging cultural preconception of pregnant
women and has been laboriously attacked by feminist legal experts. Ultimately,
proponents of artificial uteruses argue that they may be utilized as a substitute for
abortion, enabling women to stop undesired pregnancies without having to suffer through
the physical and emotional suffering that comes with undergoing an abortion. This
argument still is usually tied to movements to criminalize abortion and forcefully eject
embryos and fetuses from female bodies for artificial gestation.

In the final analysis, whilst there may be benefits of applying artificial wombs, these
factors ought to be weighed carefully towards the possible injury, they might do to
women's autonomy and physical independence if applied in the present societal and
ideological climate240.

II. Technological Prospects

Artificial wombs have sometimes been predicted to exist since the 1920s, but no such
technology has been put into practice. Recent conversations by ethicists and judicial
academics regarding ectogenesis tend to be too hopeful, considering advancements in
embryonic research and premature infant care. Despite Dr Yoshinori Kuwabara dying
away in the year 2000 and Dr Hung-Ching Liu's discoveries remaining unknown, have
been cited widely in these talks. Given this, it seems that the degree of awareness of
artificial wombs may surpass their technological feasibility. In addition, conversations
regarding the technical obstacles of ectogenesis generally presuppose that providing the
correct environment and nutrients is enough that promote normal embryonic
development.

Exciting new potential and unpleasant new problems await us as we go ahead with
reproductive technology. Gene modifying, artificial wombs, and fertility therapies, on the
one hand, have the promise to improve reproductive treatment and give women greater
autonomy.

Availability and impartiality are two domains where these technologies create essential
ethical and social concerns. Policymakers, healthcare practitioners, scientists, and
impacted communities must collaborate and interact freely to ensure that these
innovations are utilized responsibly and moderately. Finally, we need to prioritize
defending reproductive rights and improving social justice while recognizing the
potential given by scientific innovation.

The protection of women's reproductive freedom is vital in light of growing technology.

240
N. Tuana, “The Weaker Seed: The Sexist Bias of Reproductive Theory” (Spring 1988) 3 Hypatia 35, 41.

76 | P a g e
To safeguard women's independence and decision-making in maternal healthcare, robust
regulatory frameworks, confidentiality protection, and explicit consent standards must be
in place241.

Additionally, it is vital to assess any possible consequences on marginalized communities

carefully. To address the disparities in reproductive healthcare and halt escalating
discrepancies, accessibility, affordability, and cultural awareness should be given high
emphasis.

Developing technologies' ethical repercussions for reproductive treatment need to be

carefully explored. Discussions regarding assisted reproductive technologies, surrogacy,
and prenatal genetic testing required a balanced perspective that balances technical
achievements against moral, social, and legal challenges.

Cooperation between healthcare practitioners, politicians, and technology innovators is

essential. To make certain that these emerging technologies priorities women's
maternal rights, protect their confidentiality, and ensure equal access to healthcare
assistance, complete frameworks and laws should be implemented.

We can strengthen women to make intelligent choices about their maternal health,
improve exposure to high-quality care, and increase the overall welfare of females and
society in general by responsibly leveraging the promise of new innovation242.

241
Supra 181
242
Supra 181

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 CHAPTER- IV
Implications of Surrogacy
1. Economic Status-

Individuals’ financial strength relates to their ability to increase their conditions of life.

It promotes their autonomy to make choices that benefit themselves and minimize
extraneous force that restricts their autonomy. The growth in income is a sign of
obtaining economic power which may boost individuals’ status throughout the family and
community.

Some experts share the idea that surrogacy releases working-class women and enhances
their situations in India.

During an interview, Doctor. Gunasheela insisted that commercialized surrogacy

removes exploitative connections because a surrogate mother receives a wage for her
labour by delivering that child, which she may then potentially negotiate a strong status
for themselves within her own family.

In addition, several intended parents felt that substitute mothers may make a huge sum of
money which is several times their yearly salary, leading to a big shift in their life 243. The
reality, though, isn't exactly the same as they imagined.

To acquire specific information and understand more about surrogate moms, Amrita
Pande conducted a survey in a small medical facility in India to interview two distinct
categories of people involving surrogate mothers and their customers 244. On the flip side,
researchers Rudrappa, Sharmila, and Caitlyn Collins undertook comprehensive
interviews in the city of Bangalore, India with 8 reproductive experts, 20 intended
parents, and 70 Indian surrogate moms, various considered blogs and media reports.

243
S. Rudrappa, C. Caitlyn, “Altruistic Agencies and compassionate consumers: Moral Framing of
Transnational Surrogacy.” Gender and Society 29(6) (2015) 937–959. DOI:
https://doi.org/https://doi.org/10.1177/0891243215602922 (last visit 30.07.2023)
244
A. Pande, “Transnational commercial surrogacy in India: gifts for global sisters?” Reproductive
biomedicine online 23.5 (2011) 618-625. DOI: https://doi.org/https://doi.org/10.1016/j.rbmo (last visit
30.07.2023)

78 | P a g e
Concentrating on surrogate mothers’ participation, they explored further about the moral
position245.

Based on Amrita Pande’s study in 2011, surrogate moms would receive Rs 25,000
(US$500) per 3 month246. Based on conversations in Bangalore, majority of the surrogate
mothers got $4,000 or possibly less instead of $7,000 to $8,000 as claimed on media
platforms. Several surrogates hold the idea that it is unfair since their income comes up
below the full expenditures which they suffer throughout the entire procedure247.

Additionally, the money acquired via surrogacy will swiftly evaporate in a short period.

Similar to other sectors that trade with body parts, such as kidneys, the majority of the
surrogates in the interviews originally thought that their demand engagements would save
them against economic instability248.

Nevertheless, the money finally runs out. Since surrogates and their relatives live in risky
financial circumstances with extremely low savings, the moms are typically the only ones
in their expanded families without much liquid capital. As the researchers Sharmila
Rudrappa and Caitlyn Collins noted in their study, there are different elements on which
these moms are required to spend money, for example, loans, payments to rent livable
dwellings, furnishings, expensive education for children, and modest agricultural plots.

They are continuously short on money to live a good life, and their wages rapidly run out.
While they partially illustrate that surrogacy liberates surrogate moms from male power,
Rudrappa et al. notably highlighted that there is usually no obvious change in the lifestyle
of surrogate mothers following surrogacy249.

Depending on past research, Rudrappa et al.’s study presented thorough data and
instances on the shift in economic status, addressing the information gaps from an
economic viewpoint. Previous research did not give out the particular amounts of salaries
and expenditures in each phase of surrogacy under varied situations and criteria.

In additional studies, researchers may utilize a range of resources, such as movies that
already include thorough data as a reference to examine the issue and have a deeper
understanding of the financial condition of substitute mothers.

2. Effect on Health

245
Supra 193
246
Supra 194
247
Supra 193
248
Supra 193; ]M. Goyal, R. L. Mehta, L. J. Schneiderman, & A. R. Sehgal, “Economic and health
consequences of selling a kidney in India.” Jama 288(13) (2002) 1589-1593.
249
Supra 193

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Some experts have found that surrogacy has a major detrimental influence on surrogates,
whether physically or emotionally. Considering the rise of the surrogacy business, these
non-negligible damages are increasingly and more generally highlighted by academics
and feminists. Even if one were to embrace the liberal stance that surrogacy needs to be
permitted on independence and compassion, evidence of the damage must be treated
carefully250.

2.1 Physical Health-

Physical injury is the aspect that has drawn the greatest scholarly attention. Individual
freedom is one of the key fundamental rights and surrogates’ human rights are
infringed and curtailed throughout the full procedure. Some articles highlighted that
surrogates’ personal freedom is frequently limited throughout pregnancy, which implies
they are not permitted to walk out of the premises.

Even worse, they are forbidden from the staircase that leads downstairs to the open
section of the building where the clinic is situated. In this context, their lives as
surrogates are under continual supervision, and whatever is considered proper for them is
followed out even without their agreement8251.

Also, Madge and Pande produced evidence that the majority of Indian surrogates are
restricted to houses supplied by the agencies252. Diksha Munjal-Shankar stated that these
layers of power and control imposed by the external actors go on to render the surrogates
vulnerable and they suffer a loss of agency253.

Moreover, surrogates will obtain drugs and injections throughout the pregnancy because
they require these items to fool their bodies into adopting embryos that are not theirs.
Around the clock, Chaudhary indicated that they would employ an excessive number of
embryos and offer surrogates medications and steroids to improve their bodies’
perception of the fetuses they require to carry, assuring the success rate254.

250
M. M. Tieu, “Altruistic Surrogacy: The Necessary Objectification of Surrogate Mothers.” Journal of
Medical Ethics 35(3) (2009) 171–75, DOI: https://doi.org/https://doi.org/10.1136/jme (last visit
30.07.2023)
251
A. Pande, “‘At Least I Am Not Sleeping with Anyone’: Resisting the Stigma of Commercial Surrogacy
in India.” Feminist Studies 36(2) (2010) 292-312. DOI:
https://doi.org/https://doi.org/10.1093/oso/9780199474363.001.0001; Infra 202 (last visit 30.07.2023)
252
V. Madge, (2014) Gestational Surrogacy in India. Globalization In: Sayantani DasGupta, Shamita Das
Dasgupta. (Eds.), Transnational Surrogacy in India: Outsourcing Life. South Asia: Journal of South Asian
Studies. Lanham. 739–740; A. Pande, Wombs in Labor: Transnational Commercial Surrogacy in India,
Columbia University Press, 2014. DOI: https://doi.org/https://doi.org/10.7312/pand16990 (last visit
30.07.2023)
253
D. Munjal-Shankar, “Commercial Surrogacy in India: Vulnerability Contextualised.” Journal of the
Indian Law Institute (2016) 350–366.
254
J. Chaudhary, “Consequences of Surrogacy on Surrogates in India.” Indian Anthropologist 49(2) (2019)
91-106.

80 | P a g e
As a result, Based on a study in 2013, all of such standards are going to contribute to a
couple of complications including urinary tract infections, anxiety incontinence,
haemorrhoids, life-threatening haemorrhage, respiratory embolism, migraines, nausea,
sensitivity, and bruising at the injection site, drowsiness among others255.

Forced Caesarean

To some sense, the delivery of the baby symbolizes the completion of surrogacy. In the
penultimate step of pregnancy, coercive caesareans are routinely imposed on
surrogates256. A caesarean portion, or C-section, is a procedure to deliver the infant via an
incision on the abdomen and womb. Till now, arguments have centered on if a C-section
without professional indication is ethically fair257.

Since surgery carries a range of risks, it is undertaken only if it is the wisest option for an
expecting woman and her baby. It is worth emphasizing that it is never the same scenario
in the domain of delivery in surrogacy since a large number of contracting parents will
push surrogate moms to get caesareans.

If a surrogate refuses to obey the requirement, alternative surrogate will be hired. 258

Certain researchers like Chaudhary and Majumdar have recognized the reasons behind
their preference for a caesarean above a regular delivery without hazards. One
explanation is that people believe that the infant is the most valuable and no danger
should be made throughout the process of delivery259.

Another less evident argument highlighted in the previous study is that it may avoid a
link among the surrogates and the surrogate offspring who finally belong to the
contracting parents. They maintain the opinion that surgery is a relatively “clean” process
of ripping down the ties, while natural delivery via labour may bring them nearer260.

255
P. Kumar, D. Inder, N. Sharma, “Surrogacy and women’s right to health in India: Issues and
perspective.” Indian Journal of Public Health (57)2 (2013) 65. DOI: https://doi.org/10.4103/ 0019-
557X.114984
256
Supra 204
257
J. E. Christilaw, “Cesarean section by choice: constructing a reproductive rights framework for the
debate.” International Journal of Gynecology & Obstetrics (94)3 (2006) 262–268. DOI:
https://doi.org/10.1016/j.ijgo.2006.04.006
258
M. Tanderup, S. Reddy, T. Patel, & B. B. Nielsen, “Informed consent in medical decisionmaking in
commercial gestational surrogacy: a mixed methods study in New Delhi, India.” Acta obstetricia et
gynecologica Scandinavica 94(5) (2015) 465-472. DOI: https://doi.org/ https://doi.org/10.1111/aogs.12576
(last visit 30.07.2023)
259
Supra 204
260
A. C. Mendes, & L. Lau, “A postcolonial framing of international commercial gestational surrogacy in
India: Re-orientalisms and power differentials in Meera Syal’s the House of Hidden Mothers.”
Interventions 21 (3) (2019) 318-336. DOI: https://doi.org/https://doi.org/10.1080/1369801X.2018.1558094
(last visit 30.07.2023)

81 | P a g e
The commissioned parents choose a C-section rather than a regular birth because they
desire to be there throughout the time of the delivery, and the physicians and
contracting parents don't want to jeopardize the delivery and badly influence the
offspring's health261. The birth is also to be made at the doctors’ and prospective parents’
comfort262.

Based on scientific research in 2012, a caesarean might produce several health

repercussions such as the most prevalent difficulties with their breasts, fragility, bodily
aches, bleeding, and illness. Insomnia, discomfort or dread of pain while urination and
faeces and alterations in body colour were all regularly noted.

At the same time, researchers stated that presently, there is no therapy for the most
prevalent ailments, like weakness, body soreness, or difficulties with breasts. Numerous
problems stated were considered to be cured over time using drugs supplied by the
hospital263.

Based on past studies, Indian anthropologist Jyoti Chaudhary summarized all the reasons
for caesarean in her article Consequence of Surrogacy on Surrogates in India in 2019 264.
Although she brought up the occurrence of a caesarean, Chaudhary didn't look further
into the damage this may bring to surrogate moms.

Her study addresses the research gaps because just a few ethnographic studies are
regarding the real consequences of surrogates.

However more studies particularly planned and implemented to tackle this issue are
currently lacking, it is an excellent paper to study the implications of surrogacy on
surrogate mothers in numerous ways and it needs more consideration since the paper has
not yet been widely cited.

1.2.2 Mental Health

In the same direction, the detachment from their biological children throughout the
pregnancy process makes surrogates anxious and scared265. As discussed above,

261
T. Mahajan, and V. Marwah. “Birthing a market: A study on commercial surrogacy.” New Delhi: Sama
– Resource Group for Women and Health (2012) 33–90 DOI: https://doi.org/10.
4000/books.editionsmsh.10753 (last visit 30.07.2023)
262
Supra 208
263
R. Khan, L. S. Blum, M. Sultana, S. Bilkis, & M. Koblinsky, “An examination of women experiencing
obstetric complications requiring emergency care: perceptions and sociocultural consequences of caesarean
sections in Bangladesh.” Journal of health, population, and nutrition (30)2 (2012) 159. DOI:
https://dx.doi.org/ https://doi.org/10.3329/jhpn.v30i2.11309 (last visit 30.07.2023)
264
Supra 204
265
Supra 207

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Chaudhary noted that most surrogates cannot travel out to meet their family and children
due to the restrictive rules266.

In this circumstance, Rudrappa and Collons observed that they are concerned regarding
their children in numerous areas including eating, school performance, and everyday life
safety. Surrogates main anxieties are that when their babies are sick, they might not be
there to care for them. It is particularly a terrible period for surrogate mothers in an
enraged divorce relationship267.

Based on the research, the departure which impairs their children’s good health affects
surrogates’ mental health. On the other side, the quick detachment from the surrogate
infants after the birth also creates detrimental impacts on the surrogate moms. Chaudhary
also indicated that surrogates are trained to care for and love the offspring whom they are
carrying throughout their pregnancies

Yet, surrogates are even not authorized to have a glance at the infants after birth since the
agents are scared that the bond in-between would be so fast developed that the women
will be reluctant to hand over the infants to the contracted parents268.

Among such instances and interviews, they expressed tremendous fondness for the babies
and stated the hardships in the impending separation.

The conflicting emotional requirements during and after the duration of pregnancy induce
difficulties for surrogates' emotions as they must maintain an emotional equilibrium
between connection and separation with the offspring at the same moment269.

When ladies are becoming pregnant, they tend to love the infants in their uterus, but after
the infants are delivered, they ought to eradicate all those feelings. If they perform
rationally in the procedure, they will be called dispassionate and if they feel extensively
about the youngsters, they are viewed as excessively emotional in temperament. It is
tiring and taxing for surrogates to regulate and modify their emotions often.

All the emotional activities mostly rely on the wants and requirements of the prospective
parents, the agents, and the physicians. Surrogates have no option but to justify their
emotions since any departure from the role is not regarded in a favourable light and is
deemed counterproductive to the impression of the surrogates and the surrogacy
agreement.

False Hope

266
Supra 208
267
Supra 207
268
Supra 204
269
Supra 204

83 | P a g e
When surrogate moms are suffering from psychological oversight, the physicians and
agents keep generating false optimism for them. Pande pointed out that throughout the
process of surrogacy, the agents and physicians generate a feeling for surrogates that
what they are performing is above the ordinary270.

This develops a feeling of elevation in the imaginations of the surrogates concerning their
place within the contract, wherein they begin to view themselves as a prominent entity.
However, this impression of greater regard is observed to be destroyed at different stages.

Phase by phase, with her experiences as surrogates, they are conscious of her position as
a womb giver and embrace the truth properly. According to the study and assessments,
researchers brought up the idea that surrogates think they deserve some
acknowledgement and thanks because of their devotion and struggles in the surrogacy
process.

Nevertheless, the instantaneous shift in attitude before and after delivery produces a
certain degree of mental inequality for surrogates since contracting parents think that the
significance resides with them until the moment the infants are born.

More than one surrogate said that the prospective parents did not want to visit them and
approach them anymore after the delivery. Just as the study indicated, surrogates’
health are rarely considered in this circumstance.271

Illustration-

Concentrating on the impacts of surrogacy on surrogates, this research provides different

impacts on the financial status and healthcare based on prior studies.

On one hand, even though certain researchers highlighted that surrogacy can assist in
releasing surrogates from paternity by earning, the prevalent situation is that everything
the income will run out swiftly due to multiple reasons, which indicates that surrogacy
did not just bring a large and advantageous variance on surrogate’s economic position.

On the other hand, surrogacy affects surrogates ' physical and emotional health by
executing compulsory factors and regulations.

All above present a broad picture of the problem for further study which may concentrate
more on the pragmatic consequences of surrogacy.

270
Supra 201; A. Pande, “Not an ‘Angel,’ not a ‘Whore’ Surrogates as ‘Dirty’ Workers in India.” Indian
journal of gender studies (16)2 (2009): 141–173. DOI: https://doi.org/10.1177/097152150901600201 (last
visit 30.07.2023)
271
H. Jacobson, (2016) Working from Home: surrogates and their families. In: Labor of Love: Gestational
Surrogacy and the Work of Making Babies. Rutgers University Press, Ithaca, NY. 123–140. DOI:
https://doi.org/10.36019/9780813569529 (last visit 30.07.2023)

84 | P a g e
Individual interview and survey conducted by the Indian Forum

Surrogate moms are generally considered among the poorest; with many having health
difficulties that eventually impact their abilities to earn a living. They commonly struggle
with thyroid problems, high blood pressure, diabetes, cancer, and even HIV. The
hormones provided to help prepare their reproductive systems for pregnancy while
maintaining the baby in their womb also wreak havoc with their health.

Some surrogate moms, like Madhu, were made to stand in a queue in the presence of
their intended parents so that they could select who they wanted. Some pretended to be
Patel," even though a high caste fetched them greater compensation272.

Christians were chosen by intended parents who arrived from overseas, but these women
were frequently compelled to have sex-selective abortions during pregnancy and suffered
acute sadness. Muslims weren't favoured as surrogates in Gujarat, and Madeeha and
Rabina were relocated to Aluva in Kerala273.

Madeeha was having twins, but the prospective parents wanted just one baby boy. Her
agent persuaded her that she should terminate the second child. She declined to do so and
delivered identical twins, but her companion Rabina wasn't so lucky—one of the embryos
in her uterus was terminated. Madeeha implored but was not permitted to see the babies
—even a picture of them was not presented to her274.

She stated, "I received treatment like an instrument; they didn’t even allow me to see any
pictures of the kids." Multiple embryos are put into a surrogate uterus to boost the
success rate, yet legally, only three embryos may be transferred. If more than two
continue to exist, the clinic conducts selective abortions, and it is usually female foetuses
that are terminated.

After her initial surrogacy, Ujwala came short of Rs. 50,000 to purchase a property, and
the clinic urged her to consider becoming a surrogate again. This time, she bore three
fetuses (two girls and one male), but their intended parents were against the second
female. An in-utero selective abortion was done, much to Ujwala’s chagrin. She lost all
the kids and was awarded Rs. 50,000275.

Surrogates typically left youngsters behind at home, with breastfeeding women given
drugs to dry up their breast milk to prepare their bodies to become mothers again. They

272
Surrogacy Biomarkets in India: Troubling Stories from before the 2021 Act. (2022, September 1). The
India Forum. https://www.theindiaforum.in/article/surrogacy-biomarkets-india-troubling-stories-2021-act
(last visit 30.07.2023)
273
Ibid
274
Ibid
275
Ibid

85 | P a g e
were forced to physically relocate far away from their children to dwell in surrogacy
hostels276.

The same breast milk proved extremely important following the delivery of the surrogate
offspring, which had to be removed using a breast pump and given to the infants. Some
surrogate moms cared for their infants as nannies and connected emotionally with them,
but they were then unceremoniously removed with little possibility of future contact277.

The surrogacy procedure is exceedingly dangerous and has a major influence on the
surrogate's biological condition. Many surrogate moms have experienced near-death
situations, such as hemorrhages and having their wombs removed.

Alcoholism and debt among the poorest families forced most women into surrogacy.
Psychologically, all surrogate moms were impacted; nonetheless, the most impoverished
ones were the most afflicted.

Women who grieved for their kids and family at a surrogate hostel, experienced or
witnessed frightening near-death situations or uncomfortable medical intrusions, and
watched their home's monetary condition deteriorate were sadder than others. Surrogacy
has grown into a sensitive subject in India, with many women feeling cultural pressure to
have children.

The poorest surrogate women can transcend poverty only by bearing infants for others
multiple times. Most of these homes remain extremely impoverished even after
surrogacy, with the majority of the monetary compensation obtained being spent on
purchasing consumer items. The women are pressured to become surrogates again, and
only those who can succeed in doing this effectively may ease their financial situation to
some degree.

Transportation of women was common when there was no prohibition against surrogacy.
A 13-year-old girl from Jharkhand was brought to Delhi by human traffickers, where she
was raped, made their slave, and forced to give birth six times.

Nargisa, another "poor" lady, purchased a home following surrogacy; however, the
surrogacy money was exhausted, and her husband started borrowing278.

Eventually, they decided to sell the home they had acquired. After experiencing the
luxury of rapid money, her husband declined to work for the customary income, but
Nargisa refused to take on the role of a surrogate mother again or give eggs, and they
turned "very poor."

276
Ibid
277
Dr. Ranjana Kumari , Surrogate MotherhoodEthical or Commercial, Centre for Social Research (CSR),
https://wcd.nic.in/sites/default/files/final%20report.pdf (last visited 4.03.2023)
278
Supra 274

86 | P a g e
This underscores the social pressure to have children since couples are generally regarded
as weird. Women face a double burden since they become victims of cruelty and their
bodies are exposed to therapies, irrespective of whether they are barren or not.

Women who undergo IVF therapy experience social shame, psychological issues owing
to hormonal therapy, and physical discomfort due to infertility treatment. Their bodies are
abused at multiple levels—physical, psychological, and societal.

The surrogacy procedure tends to put surrogates into the same set of challenges, with
their health, independence, and possibly l their live sat stake individual reproductive
rights contradict other people's fundamental freedoms and social fairness, they cannot be
deemed constitutional rights. Surrogacy fosters a profoundly rooted classist, pro-natalist,
patriarchal, racist, and ableist societal hegemony279.

279
Supra 277

87 | P a g e
 CHAPTER- V

COMMERCIAL SURROGACY IN INDIA

In India, the commercialization of surrogacy has been a complicated and developing
concern. Here is the overview -

Before it had been banned in 2015, commercial surrogacy in India had drawn
considerable attention. India was regarded as the top choice for surrogacy and was called
a "baby factory." The rise of globalisation which permitted the growth of reproductive
services beyond national lines, was partially to blame for this rise in popularity280.

Surrogacy's globalisation, however, produced an assortment of consequences. While

technology provided alternatives outside national boundaries, it also brought up moral
dilemmas. Rich people had easier availability of reproductive healthcare, which
exacerbated social inequality. Due to a lack of funds, many surrogates—many of whom
are from economically underprivileged backgrounds—became involved281.

In an effort to safeguard women from abuse and control an industry that had mostly
expanded unregulated, the Indian government introduced a measure outlawing
commercial surrogacy in 2015. The restriction restricted surrogacy to charitable
objectives, for which there could be no monetary reward. Surrogacy was only available to
lawfully married infertile partners or single or divorced women above the age of 35,
subject to severe and rather unrealistic requirements282.

Critics said that such stringent laws violated Indians' personal liberties, especially
women's freedom to decide how to have children. Concerns about inequity and fewer
options for women were highlighted by the prohibition on commercial surrogacy.
Additionally prohibited from using surrogacy services were males who were unmarried,
divorced, or widowed as well as a sizable section of the LGBTQIA+ community283.

The exploitative practices on surrogates in India had come to light as a result of

globalisation and inadequate legislation, which finally led to the complete outlawing of
surrogacy. The government is violating citizens' basic rights under Article 21 of the
Constitution when outlawing commercial surrogacy. The difficulties in finding a balance

280
Dr Tapan Panda and Sonal Muluk, Commercialization of surrogacy in India: The effects of globalization,
The Times Of India, https://timesofindia.indiatimes.com/blogs/voices/commercialization-of-surrogacy-in-
india-the-effects-of-globalisation/ (last visit 3.08.2023)
281
Ibid
282
Ibid
283
Priya Shetty, India's unregulated surrogacy industry, The Lancet,
https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(12)61933-3/fulltext
(last visited 3.08.2023)

88 | P a g e
between preserving interests and upholding individual rights are highlighted by this
controversy284.

1. Prospect on prohibition

Surrogacy involves basic concerns about humanity, human dignity, individual

sovereignty, and the limitations of choice. It has been condemned for commercializing
the infant, severing the relationship between the mother and the baby, and meddling with
nature. The Convention on Human Rights and Biomedicine outlaws the industrialization
of the human body, and nations like Germany and Switzerland condemn commercial
surrogacy. The ethical implications of surrogacy agreements remain problematic owing
to the commercial nature of foreign surrogacy and the high value society places on
carrying children and motherhood285.

One important problem is the commercialization of the child through commercial

surrogacy, since it puts the reproductive capability of the mother in the market realm.
This depreciation of childbirth portrays women as "machines of reproductive commerce"
by renting wombs and depreciating childbearing.

The Gujarat High Court has also highlighted concerns regarding the abuse of Indian
surrogates via surrogacy. Examples of exploitation are particularly widespread in
international commercial surrogacy when surrogates are from underprivileged families
and are sometimes compelled by their in-laws to commit to a process that may earn the
family's survival286.

Before the 2021 Act, the absence of regulation in this industry had culminated in the
exploitative use of surrogates and deprived the surrogate kid of rights to identification
and citizenship. Surrogates are generally from impoverished homes and are sometimes
coerced by their in-laws to submit to such operations, raising doubts regarding the
application of free choice or the absence of financial options287.

Their lack of legal or medical understanding and the high amounts of money they get
make it impossible for surrogates to have equal negotiating power against the wealthy
and influential clinics and prospective parents they contract with.

The contracting parents and fertility clinics give attention to the surrogate's health;
however, they just offer care for nine months rather than the physical and emotional well-
being of the surrogates in the long term. Some observers claim that free consent can't be
granted in circumstances of surrogacy contracts before the birth of the surrogate infant,
since surrogates can't possibly know exactly how they would feel after bearing the child
in their uterus for a period of nine months.
284
Ibid
285
Surrogacy Biomarkets in India: Troubling Stories from before the 2021 Act. (2022, September 1). The
India Forum. https://www.theindiaforum.in/article/surrogacy-biomarkets-india-troubling-stories-2021-act
(last visited 3.08.2023)
286
Ibid
287
Ibid

89 | P a g e
Regardless of the biological tie that exists between the surrogate and the embryo, the
surrogate has fostered the fetus in her womb, which may develop a bond between them
and play an essential role in the child's character. Some also labeled international
commercial surrogacy as "reproductive trafficking," since it was generating a national
and worldwide trade in females, making them movable assets and commodities of the
reproductive trade288.

The term reproductive tourism is a common phrase for this type of travel. Since childless,
infertile, or sexually challenged patients typically make great sacrifices with the aim of
becoming parents, it is vital to professionally refuse and oppose this practice on ethical
grounds since infertile or reproductively challenged patients frequently make enormous
sacrifices with the goal of becoming parents.

2. Ongoing Conflict with Right to Equality

Critically highlights of the act and constitutional rights and judicial decisions: in light of
equity provisions-:

The legislation outlaws all sorts of marketed surrogacy, and it authorizes only biological
relatives to act as surrogates. The legislation also enables any willing woman to be a
surrogate, so far as surrogacy is concerned. Although it is taking away the chance of
livelihood by acting as surrogates, that notion is taken from the positive perspective that
it is safeguarding the many surrogates from victimization289.

In Devika Biswas v. Union of India,290 the Supreme Court acknowledged the right to
procreation as a vital element of the right to life’ under Article 21. These reproductive
freedoms for females encompass the right to bear a baby for a period of time, deliver
birth, and raise progeny. In addition, they include the integrity of the body as well as the
rights to privacy and dignity.

Thus, confining surrogacy solely to heterosexual spouses and widows or divorcees within
a particular age bracket or even refusing reproductive options to LGBT, single
individuals, and elderly couples violates Article 21.

The statute also asserts the number of times a lady may be a surrogate and stipulates the
age for couples to be married. The act has necessitated the production of a certificate of
vitality stating that the pair is infertile; however, it has not considered the part of those
females who desire a baby but prefer not to go through pregnancy because of career
commitments or other factors. Only by stating an infertile situation can the right to be a
parent be declined. The statute also mentions the provision that a close relative of the
288
Ibid
289
Sherin Farhana EV, SURROGACY IN INDIA: AN INSIGHT TO THE PROVISION OF EQUALITY,
Indian Journal of Law and Legal Research, Volume IV Issue I | ISSN: 2582-8878,
file:///C:/Users/ZXC/Downloads/3fdef5_1fb28d93ec4d4bd3b276099a8faded6f%20(2).pdf
(last visited 31.07.2023)
290
Harleen Kaur. "Laws and Policies on Surrogacy" , Springer Science and Business Media LLC, 2021

90 | P a g e
intending parents may be the surrogate. The criteria mentioned in the Act for surrogates
as well as the parents indicate excessive interference and infringe Article 21 of the Indian
Constitution, which shows the encroachment upon the right to reproduction. The Act also
infringes the rules of the International Convention, i.e., A.12 of the UDHR and A.17 of
the International Covenant on Civil and Political Rights, which forbid unjust disruptions
in women’s privacy291.

The Andhra Pradesh High Court in the case of B.K. Parthasarthi v. Government of
Andhra Pradesh declares-

That the state’s involvement in procreation amounts to a direct intrusion on one’s "right
to privacy," and it has been acknowledged as a part of the right to life under Article 21.

The K.S. Puttaswamy v. Union of India case offered a comprehensive affirmation of

individual liberty and acknowledged the right to privacy as protecting individual
independence by seeking to preserve the person’s physical integrity and her free decision-
making ability. The statute also limits the surrogacy idea to married spouses, and it also
violates the rights of transgender people as it restricts surrogacy conception to natural-
born male and female partners.

The statute also draws a distinction between heterosexuals and LGBTs. Article 14 of the
Constitution provides for every person's equality before the law and equal protection of
the law292.

The Supreme Court of India recognized transgender people as a third gender in the case
of National Legal Services Authority v. Union of India, giving them the same rights as
those who identify as either male or female. But the Legislation fails to guarantee
equality of those essential rights for all genders, and the existing Surrogacy statute
provides a specific criterion that is quite restrictive for contracting for surrogacy and will
disentitle transgender people from procuring surrogacy293.

The court precedent has clearly provided unambiguous decisions, as reproductive

decisions are protected as an innate right. The law also forbids unmarried people from
pursuing surrogacy. The limitation of unmarried parents for surrogacy choice again limits
the right to privacy and therefore prejudices the idea of the right to equality.

3. ISSUES

291
Supra 289
292
India Law Journal, https://www.indialawjournal.org/analysis-of-the-surrogacy-regulation-bill.php
(last visited 31.07.2023)
293
Supra 225

91 | P a g e
With every blessing comes a curse, and so is the situation in the case of surrogacy. There
have been occasions when the parents declined to accept the surrogate kid, or when the
surrogate with her maternal devotion unwilling to give up the child294.

There are several complications in the procedure of surrogacy. Let us explore them in
depth.

ETHICAL ISSUES –

Till now the ethical implications of surrogacy collaborations remain highly disputable. It
is the question of human rights when a female’s reproductive component gets
commercialized. Just for the purpose of having children women’s uterus is purchased.
Renting a woman's womb is essentially what surrogacy means commercially. Our
mechanism of regulating commercial surrogacy frequently fails which lead to
the exploitation of surrogate. Surrogacy is a practice where the uterus of ‘non-valuable’
females is employed as “breeders” for the fetuses of “valuable women”295.

Jan Balaz V. Union of India, - There is no legislation that forbids womb-lending or

surrogacy contracts, according to the Hon'ble High Court of Gujarat, hence commercial
surrogacy is seen to be allowed in India.

Nevertheless, the Law Commission of India recommended in its 228th report in 2009 that
surrogacy should be regulated by law. Legalizing only altruistic surrogacy and banning
commercial surrogacy, according to the Law Commission, would be the best solution.
Following this, the Surrogacy (Regulation) Bill, 2019, was approved by the Lok Sabha on
August 5. The Rajya Sabha, at its sitting held on November 21, 2019, approved a move to
submit the bill to a Select Committee. The committee analyzed the best practices in
surrogacy worldwide keeping in mind Indian demands.

The ethical and moral difficulties regarding surrogacy in India following the 2022
amendment have spurred discussions and disagreements within the legal and social
settings. The Surrogacy (Regulation) Act of 2021 brought about substantial modifications
and restrictions to the practice of surrogacy in India. Yet, these advancements have also
brought significant ethical and moral considerations that need to be resolved.

One of the primary ethical problems is connected to the exploitation of surrogates and the
possible monetization of their reproductive capacity. The ban on commercial surrogacy
under the 2021 Act was meant to restrain the exploitation of economically weak women
who could be enticed to become surrogates purely for monetary gain. While this is a good
aim, there are worries that the full prohibition on commercial surrogacy might restrict the

294
AAYUSHI SELOT, Commercial Surrogacy: An Analysis, International Journal of Law Management &
Humanities, file:///C:/Users/ZXC/Downloads/Commercial-Surrogacy-An-Analysis%20(1).pdf
(last visited 31.07.2023)
295
Supra 228

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income-earning options of women who might have freely chosen to opt for surrogates as
a method of supporting their families296.

Additionally, the Act's focus on altruistic surrogacy, where no economic remuneration is

involved beyond medical expenditures, may lead to emotional and ethical complications.
Altruistic surrogacy generally includes close friends or family serving as surrogate moms.
This may establish emotional attachments and expectations that could influence the
surrogate mother, the intended parents, and ultimately the child born via the arrangement.
There is a danger of disrupting relationships, and the lack of third-party engagement,
which is frequent in commercial surrogacy, might lead to challenges in managing the
surrogacy process297.

Another ethical dilemma concerns the rights and health of the infant born via surrogacy.
The Act specifies that the surrogate must be genetically correlated to the intended
parents. While this establishes a biological tie between the child and the intended parents,
it could also restrict the alternatives accessible to couples who need gestational surrogacy
owing to medical reasons298.

Furthermore, the barring of some groups of persons, such as single men and women
bearing a child, from accessing surrogacy raises problems of equality and human liberty.
The right to reproductive choice and privacy, as protected under Article 21 of the
Constitution, has been raised in judicial challenges against such exclusions.

It's vital to note that the Surrogacy (Regulation) Act of 2021 was created with the purpose
of finding a balance between avoiding exploitation, preserving the rights of all
individuals involved, and addressing the complexity of surrogacy. However, the Act's
limits and possible unintended effects underline the need for continuous ethical
conversations and future revisions to provide a thorough and equitable regulatory
framework299.

Thus, the 2022 modification to the Surrogacy Act in India has addressed several ethical
problems linked with surrogacy, such as the restriction of commercial surrogacy and the
regulation of altruistic surrogacy. However, technology has also brought new ethical
concerns linked to exploitation, emotional complexity, children's rights, and human
autonomy. Balancing these issues while enabling access to surrogacy for individuals in

296
Surrogacy. (2022, May 28). Drishti IAS. https://www.drishtiias.com/daily-news-analysis/surrogacy-4
(last visit 31.07.2023)
297
Ibid
298
Narayan, G., Mishra, H. P., Suvvari, T. K., Mahajan, I., Patnaik, M., Kumar, S., Amanullah, N. A., &
Mishra, S. S. (2023, April 20). The Surrogacy Regulation Act of 2021: A Right Step Towards an
Egalitarian and Inclusive Society? PubMed Central (PMC). https://doi.org/10.7759/cureus.37864
299
Ms. Kiran Kumari, Dr. Rashmi Gupta, Dr. Rohit Soni, Dr. SunitaVerma, Ms. Meha Khiria
SURROGACY (REGULATION) AMENDMENT RULES, 2023: MEDICAL, LEGAL AND ETHICAL
CONCERNS IN INDIA, ISSN 2063-5346,
https://www.eurchembull.com/uploads/paper/0d31b4a8ef0e2acc52360fc25e7ddb90.pdf
(last visited 6.08.2023)

93 | P a g e
need remains a problem that needs continuous ethical thought and future legal
modifications.

LEGAL ISSUES– The absence of suitable laws for the regulation of commercial
surrogacy is the major failure which frequently leads to a breach of contract between
both parties (Surrogate and Contracting Parents). Surrogacy, a practice where a surrogate
bears a child for the intended parents, has been a topic of both hope and conflict owing to
medical, legal, and ethical considerations 300. The Surrogacy (Regulation) Act, 2021, and
its associated Surrogacy (Regulation) Rules, 2022, have brought substantial changes to
the context of surrogacy in India. This legislative framework was developed to address
the concerns of commercial surrogacy, exploitation of surrogates, and the absence of
restrictions that formerly existed in the nation301.

The Act, which outlaws and penalizes commercial surrogacy, specifies many restrictions
related to the eligibility and competencies of intended couples, surrogate mothers, and
medical staff participating in the procedure. It also imposes severe paperwork
requirements for the initiation of the surrogacy procedure. On the other hand, the Rules
specify particular templates for acquiring certifications, affidavits, and consents,
substantially expediting the surrogacy application procedure302.

The legal advancements also include revisions to the Rules. The first modification,
enacted in 2022, added flexibility to the procedure by letting the intended couple obtain
insurance coverage for 36 months, guaranteed by signing an affidavit to authorities like
the Executive Magistrate or Notary Public. This improvement sought to accelerate the
surrogacy application procedure303.

The second amendment, implemented in 2023, makes a fundamental alteration to the

legislation by disallowing intended couples to commission surrogacy using donor
gametes. The amendment expressly stipulates that intended couples must have both
gametes from the marriage themselves, and the use of donor gametes for surrogacy is no
longer permissible. This revision addresses issues relating to genetic lineage and indicates
a major divergence from the prior requirements304.

Additionally, a key case law that throws light on these concerns is the case of Sri H
Siddaraju versus The Union Of India305, tried in the Karnataka High Court. In this case,
the petitioners questioned the constitutionality of key portions of the Surrogacy
Regulation Act, of 2021. The court's discussions emphasize the complications of issues

300
Supra 228
301
Co, K. (2023, March 27). Khaitan & Co. Khaitan&Co.https://www.khaitanco.com/thought-
leaderships/Recent-development-in-the-surrogacy-rules-in-India#:~:text=The%20first%20amendment
%20to%20the,guaranteed%20by%20signing%20an%20affidavit(last visited 31.07.2023)
302
Ibid
303
Ibid
304
Analytical Study on Surrogacy Regulation Rules, 2022 |Lawrbit,
https://www.lawrbit.com/article/analytical-study-on-surrogacy-regulation-rules-2022/
(last visit 31.07.2023)
305
Sri H Siddaraju vs The Union Of India on 21 April, 2023

94 | P a g e
like age limitations for intended parents and the connection of the surrogate mother to the
intended pair. This case shows the continuing legal issues and problems surrounding the
shifting landscape of surrogacy law in India306.

Thus, the Surrogacy (Regulation) Act, 2021, together with later changes and case law
interpretations, illustrates the Indian government's attempts to regulate and simplify the
procedure of surrogacy while recognizing ethical issues and protecting the interests of all
parties engaged. These legislative developments underline the evolving nature of
surrogacy policy in India and its effect on families battling infertility and pursuing
surrogacy as a path to motherhood.

PERCEPTION AGAINST PROHIBITION OF

COMMERCIALIZATION-

The Act was established to safeguard the surrogate and child against unethical acts. It
prominently forbids the commercialization of surrogacy and supports altruistic surrogacy.
Infertile Indian married spouses are the only ones eligible for altruistic surrogacy under
the Act. The Act prohibits sex identification that may be supplied in surrogacy

Altruistic surrogacy is fundamentally distinctive from commercial surrogacy. In altruistic

surrogacy, the desired parents select a surrogate who has a relationship with their
relatives or friends. Also, in this sort of surrogacy, the surrogate isn't offered any pay
other than medical costs.

A PATH TO LEGALIZING COMMERCIAL SURROGACY

As previously established, commercial surrogacy is a technique through which spouses

are able to expand their family that ordinarily may not be feasible due to many
circumstances, it could be owing to infertility or the woman's decision to have a child
through surrogacy highlighting her medical conditions.

Essentially, the surrogate moms are compensated and taken care of subsequently
delivering the birth to the desired parents. However, the disputable problems regarding
commercial surrogacy are patriarchal and seek to intrude upon the human right to
freedom and bodily the integrity of the surrogate. By outlawing commercial surrogacy,
the Legislation does not take into consideration the intersectional dimensions of how the
legislation will influence women’s access to their own bodies.

It is notably underlined that the altruistic surrogacy approach requires the women to go
through the physical and mental anguish and labour of delivering a child exclusively out
of pure compassion which is far off from the existent reality307.

306
Ibid

307
Karan Babbar, The Surrogacy Act 2021: Another Attempt to Reproduce A Heteronormative Patriarchal
Society? FEMINISIMINDIA, (Feb. 2, 2022), https://feminisminindia.com/2022/02/02/the-surrogacy-
regulation-act-2021-another-attempt-to-reproduce-a-heteronormative-patriarchal society/#:~:text=The

95 | P a g e
Having such high expectations supports the patriarchal mentality of the culture and limits
the freedom of those with reproductive organs308.

Personal autonomy and physical integrity are important to all human beings and
surrogates can never be bereft of this right. In India, there is a traditional ideology that
commercial surrogacy strives to sell newborn babies in lieu of monetary interests, but in
reality, commercial surrogacy helps couples grow their families.

The desired parents are responsible for paying the medical expenses associated with the
delivery of the baby, and after delivery of the baby, the intended parents take care of the
surrogate mother diligently.

The notion of selling newborn kids is created by Indian culture. But in the actual essence
of commercial surrogacy, it is not the newborn who is being sold but the services,
reproductive labour, pain and other pregnancy-related things are sold and that’s what
the desired parents or persons will be paying for309.

Commercial surrogacy is a fantastic technique through which prospective parents are able
to increase their families. Additionally, commercial surrogacy protects the physiological
integrity and individual autonomy of surrogate mothers.

Surrogates have access to bodily integrity and individual autonomy to determine whether
they wish to deliver a child or not. It is by enjoying the right to personal independence
and bodily integrity the surrogate decides to childbearing for the intended parents and
gains money.

It is the decision of the surrogate to authorize the processes in her body and generate
commercial value out of it. And, this right, the freedom of personal sovereignty and
physical integrity cannot be decreased or devoid by any legislation since they are the
fundamental rights in the absence of which existence would be devoid. Prohibition of
commercial surrogacy and permitting altruistic surrogacy is a flagrant infringement of
the personal autonomy and physical integrity of the surrogate310.

The ability of a female or girl to exercise autonomous choices about her personal body
and reproductive processes lie in the fundamental spirit of her basic right to equality and
privacy, concerning personal concerns of physical and psychic integrity311.

%20Surrogacy%20(Regulation)%20Act%202021,reimbursement%20for%20her%20medical%20expenses
(last visit 1.08.2023
308
Ibid
309
Sanjana Dwivedi, Requisites for Legalization of Commercial Surrogacy in India: Small Reference to
Surrogacy in the United States, IPLEADERS, (June 10, 2020), Requisites for Legalization of Commercial
Surrogacy in India: Small reference to surrogacy Laws in United States
310
Neeta Lal, Commentary: India’s ban on Commercial Surrogacy is no fix to Legal, Moral Complexities,
CNA, (Dec 7, 2019), Commentary: India's ban on commercial surrogacy is no fix to legal, moral
complexities - CNA (channelnewsasia.com)
311
Articles 3 and 17 of the ICCPR

96 | P a g e
Thus, in light of the infringement of personal autonomy and physical integrity, the
restriction on commercial surrogacy in the Act is unconstitutional.

The second key cause for the authorization of commercial surrogacy is surrogate choice
to ameliorate their economic difficulties. Commercial surrogacy is an arrangement
attained between the surrogate and desired parents in pursuit of fulfilling a purpose. The
surrogate mother performs out of her commitment embodied by the Act and in exchange
earns an economic reward.

Restriction on commercial surrogacy will lead to the employment of surrogate and harden
their bad financial conditions. The Act might make the scenario worse for surrogates as
the prohibition on commercial surrogacy can generate a black market
wherein commercial surrogacy may go underground.

Impoverished women may be tempted to opt for commercial surrogacy owing to their
socio-economic lifestyles. Excluding commercial surrogacy, some opponents point out,
may create a black market analogous to the one in organ sales and prostitution with the
extra hazards of vulnerable women being exploited or foreigners abandoning babies born
via surrogates312.

If Commercial surrogacy is authorized the ladies with their full agreement engage in the
procedure of surrogacy helping them ease their financial difficulties.

Also, by regulating commercial surrogacy, the surrogate's right to procreation and health
will be safeguarded. For example, after conception any health condition occurs then by
virtue of the contract desired parents will be under duty to give treatment of the greatest
achievable level to the surrogate mother protecting their right to healthcare of the best
obtainable standard of the surrogate.

Prohibition on commercialized surrogacy would impair the surrogate's right to healthcare

and in altruistic surrogacy, the desired parents would not be bound to ensure the right to
healthcare of the surrogate mother.

Likewise, a permitted commercial surrogacy with transparent and accessible information

would grant comparable rights to babies born to identify their parentage and belonging,
and they will be safeguarded by law. It will also safeguard the rights of desired parents
and surrogate313.

The Act developed with the belief that altruistic surrogacy may assist in minimizing of
exploitation of surrogates however that is not the case. Even with altruistic surrogacy, the
surrogate has a significant possibility of becoming forced by family members to endure
the process of surrogacy. Whereas, a correctly prepared agreement will limit the
exploitation of surrogates.

312
Ibid
313
Montanari, Zammi et al., The conscientious objection: Debate on emergency contraception, Clin. Ter.
2017;168:e113–e119. doi: 10.7417/CT.2017.1991

97 | P a g e
Thus, the prohibition on commercial surrogacy has proven to be a problem for the
surrogates' right to individual autonomy, physical integrity, free choice and right to
stay healthy. Commercial surrogacy is not immoral but it mostly allows intended parents
to increase their family and for a surrogate to earn a career out of it properly.

The prohibition of commercial surrogacy was partly owing to the prominence of

unethical activities such as the exploitation of surrogates; however, the prohibition
of commercial surrogacy can't in itself address this issue314.

Commercial surrogacy is guaranteed by the agreement between the surrogate and

desired parents; it secures the rights of both and establishes duty on both the parties.
Commercial surrogacy ought not to be seen as unethical and immoral or as the sale of
infants. The main reason behind this surrogacy is to assist the prospective parents to
expand their family and it enables the surrogate to reduce their financial challenges.

In order to comprise the unethical operations connected with commercial surrogacy there
should not be prohibited but in accordance with curtailing exploitative practices of
commercial surrogacy it is viable to enact labour laws focused on securing women who
choose to be surrogates as essential and indispensable for the staff.

This strategy would comprise the regulation of commercial surrogacy, combined with
tightly enforced restrictions targeted at ensuring the women’s dignity and integrity is not
jeopardized and their freedom to choose is protected at every time during the process315.

ONGOING CONCERNS-

The latest verdict on surrogacy legislation in India contains explanations offered by the
Centre to the Supreme Court about specific clauses of the Surrogacy (Regulation) Act.
The Centre's response notes that although a surrogate mother doesn't have to be
genetically connected to the child born via surrogacy, the infant must be genetically
related to the intended couple or intending woman. In other words, the kid produced via
surrogacy should be created from the gametes of the intended couple themselves, with
male reproductive cells from the father and oocytes from the mother being used316.

The Supreme Court is now examining a batch of applications challenging different

aspects of the Surrogacy (Regulation) Act and the Assisted Reproductive Technology
(Regulation) Act. These complaints contend that certain laws infringe upon the
fundamental right to privacy under Article 21 and the reproductive liberty of women.

314
Ibid
315
Ibid
316
Centre Clarifies On Surrogacy Law In Supreme Court, https://www.ndtv.com/india-news/centre-
clarifies-on-surrogacy-law-in-supreme-court-3764667 (last visit 6.07.2023)

98 | P a g e
Right, to have reproduction choice also includes bearing pregnancy till the term of 9
months, safe and secured delivery of the child, and other similar rights all form part of the
right to privacy dignity and bodily integrity317.

The Centre, via a notice published last year, formed the National Assisted Reproductive
Technology and Surrogacy Board, which recommends the government on policy issues
pertaining to assisted reproductive technology and surrogacy. The Act also mandates the
establishment of ART and surrogacy boards in all states and Union territories, however,
some states have yet to create these boards318.

One of the problematic sections that are under scrutiny is the requirement that the
surrogate mother must not be genetically linked to the kid, which has generated worries
about its influence on surrogacy agreements employing third-party donor eggs. The
Supreme Court stressed the necessity for explicit announcements or government
instructions to execute these suggestions effectively.

The Karnataka High Court has also voiced reservations regarding the restriction that the
surrogate mother must be genetically related to the intended couple, stating that this rule
runs antithetical to the principle of altruistic surrogacy319.

In summary, the recent verdict and continuing arguments underscore the intricacies and
issues of surrogacy regulations in India, notably addressing the genetic link between the
surrogate mother and the child delivered via surrogacy.

Some issues remained ignored in the act such as

The full restriction on commercialization might lead to the hidden unlawful employment
of surrogate mothers, It is not a perfect answer to the issue.

Moreover, the acting phrase 'near relative' is rather broad and unclear under the
legislation320.
317
Surrogacy in India landmark judgments, https://www.juscorpus.com/surrogacy-in-india-landmark-
judgments/#:~:text=The%20woman%20chosen%20for%20surrogacy,age%20of%2025%2D35%20years
(last visited 06.07.2023)
318
Sri H Siddaraju vs The Union Of India on 21 April, 2023
319
Live law, https://www.livelaw.in/top-stories/surrogate-mother-genetically-related-child-centre-supreme-
court-surrogacy-act-227793 (last visit 6.08.2023)
320
SURROGACY IN INDIA: LANDMARK JUDGMENTS - Jus Corpus. (2022, February 1). Jus Corpus.
https://www.juscorpus.com/surrogacy-in-india-landmark-judgments/ (last visited 06.07.2023)

99 | P a g e
 The legislation is restricting only to the incapacity to conceive as the basis to choose for
surrogacy, other concerns such as the inability to keep pregnancy for full nine months,
etc. are not killed by the statute.

The legislation is restricted exclusively to heterosexual couples, therefore reducing the

scope for single parents, aged couples, LGBT population to select for the technolog321.

Moreover, the commencement of exploitation started from the IFVS centers, which has
to be dealt with correctly to address the annoyance thus produced.

Another element is that there are only 30% to 40% odds of success of such tactics, but the
institutions engaged in this promised 100% success of the mechanism, therefore, enticing
and defrauding many intended couples and impoverished women.

The uncontrolled industry of surrogacy led to different concerns and challenges in the
nation. Surrogacy gives birth to numerous unethical actions including organ sale and
embryo import, exploitation of surrogates by failing to reimburse them according to the
contract, abandonment of children born out of surrogacy, middlemen, and commercial
agencies benefitting most owing to increasing trends in surrogacy. Additionally, altruistic
surrogacy does not even meet the need for financial assistance in the case of a poor
woman, which is, in turn, an injustice to her322.

CHAPTER VI

CONCLUSION AND SUGGESSIONS

The Surrogacy (Regulation) Act of 2021 has had substantial implications for the
regulation of surrogacy in India. The Act, coupled with the Surrogacy (Regulation) Rules

321
Ibid
322
Ibid

100 | P a g e
of 2022, intends to handle the complex and growing environment of surrogacy by
adopting different restrictions and norms.

One of the significant ramifications of the Act is the ban and sanctions on commercial
surrogacy, which was a major problem in India owing to concerns about exploitation and
unethical activities. The Act emphasizes ensuring that surrogacy is undertaken for
altruistic grounds and tries to avoid the monetization of surrogacy services.

The Act provides conditions and criteria for intended couples, intending women, and
surrogate mothers. It also explains the paperwork needed for the initiation of the
surrogacy procedure. These rules are aimed at guaranteeing that all parties engaged in the
surrogacy agreement satisfy particular requirements and undertake suitable procedures.

Additionally, the Act has brought revisions to the Surrogacy Rules. For instance, the
2022 Amendment permits intended couples to obtain insurance coverage for a set term,
which may be guaranteed by signing an oath before various types of authority. This
change attempts to shorten the surrogacy application procedure and make it more
adaptable for intended couples.

The 2023 Amendment, on the contrary, introduces a big alteration by disallowing

intended couples from contracting surrogacy using donor gametes. This implies that
surrogacy utilizing donor eggs or sperm is no longer permissible under the modified
guidelines. This move is important and affects the alternatives accessible to intended
couples and single women (widows/divorcees) undertaking surrogacy.

The overall effect of the Surrogacy (Regulation) Act and its subsequent changes is a more
controlled and simplified procedure for surrogacy in India. It discusses topics linked to
commercialization, exploitation, and the ethical aspects of surrogacy. However, the Act
has also established significant constraints and limitations on the sorts of surrogacy
agreements that may be undertaken, notably with the denial of donor gametes in the 2023
Amendment.

It's vital to highlight that these consequences reflect the shifting environment of
surrogacy in India and its continued growth as a regulated activity. The Act's provisions
and later changes strive to achieve a balance between allowing surrogacy for lawful and
altruistic purposes while avoiding possible abuse and exploitation.

The law dealing with the 2022 surrogacy regulation in India, which comprises the
Surrogacy (Regulation) Act of 2021 and the Surrogacy (Regulation) Rules of 2022,
marks a major step towards regulating and resolving the complications of surrogacy in
the nation. The effectiveness and application of this law may be assessed based on its
aims, provisions, and prospective effects on many elements of surrogacy.

Efficiency: The law intends to regulate and monitor assisted reproductive technologies
(ART) and surrogacy, therefore reducing unethical activities, preventing exploitation, and
assuring the well-being of all parties involved. It establishes eligibility criteria and

101 | P a g e
restrictions for obtaining ART treatments and surrogacy. By forbidding specific activities
like as sale of gametes and compensation to surrogate mothers beyond medical
expenditures and insurance coverage, the legislation attempts to discourage the
commercialization of surrogacy and encourage altruistic surrogacy.

Applicability: The legislation's provisions specify who may receive ART operations and
surrogacy, which encompasses married infertile couples and specific categories of
women. This creates a clear structure for people eligible to pursue surrogacy as a way of
attaining parenthood. Additionally, the formation of the National Assisted Reproductive
Technology and Surrogacy Board offers a regulatory body to supervise and enforce the
execution of the Act.

Impact on Reproductive choice and Society:

The legislation's emphasis on regulating surrogacy corresponds with the developing

cultural norms and reproductive rights. It recognizes the need for fair access to infertility
treatment and reproductive technology, including the ability to make choices regarding
one's reproductive life. The Act addresses problems linked to reproductive sovereignty,
choice, and exploitation by forbidding specific practices and fostering ethical
considerations.

Obstacles and Considerations: While the Act makes measures to address numerous
concerns, obstacles remain. Petitions have been filed contesting some provisions of the
Acts, notably their purported discriminatory character and effect on reproductive
autonomy. These problems underline the significance of achieving a balance between
legislation and individual rights.

Thus, the law referring to the 2022 surrogacy regulation in India reflects a substantial
attempt to regulate and handle the complications of surrogacy. Its effectiveness and
applicability may be assessed based on its aims to control ART operations and surrogacy,
prevent exploitation, and encourage ethical practices. However, persistent obstacles and
legal discussions underline the need for continual examination and future changes to
create a complete and fair regulatory framework for surrogacy in India.

The restriction on the commercialization of surrogacy in India has created considerable

debates and controversy over its appropriateness in limiting the possible hazards linked
with the practice. While the prohibition on commercial surrogacy was introduced with
the goal of eliminating exploitation and unethical activities, its efficacy and effects have
been subject to examination.

The restriction on commercial surrogacy has led to various repercussions that need to be
considered. One viewpoint indicates that the restriction may not be totally enough to
reduce the issues linked to surrogacy. It has been claimed that the restriction may compel
women into altruistic surrogacy, where pay is restricted to medical expenditures and

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insurance coverage323. This might possibly generate financial challenges for surrogate
moms who may need extra help throughout their pregnancy period.

Also, the restriction on commercial surrogacy can lead to the establishment of

unregulated and clandestine surrogacy operations, which might be much more
destructive. The commercialization of surrogacy has been connected with several
positives, such as generating a source of money for economically deprived women. The
restriction of commercial surrogacy could force these women into informal and
dangerous arrangements, putting their safety and health at peril324.

The restriction of commercial surrogacy additionally creates problems regarding

individual autonomy and reproductive rights. The prohibition on paid surrogacy restricts
the alternatives open to intended parents, particularly those who are abstain from
having biological babies of their own and are looking for alternate methods to become
parents. The restriction could impinge upon the personal liberty of persons who might
have alternatively reached informed judgments regarding their reproductive choices 325.

Additionally, the prohibition has been questioned for its exclusive aspect. It only permits
altruistic surrogacy for lawfully married infertile couples or single or divorced women
over a particular age. This leaves excludes unmarried persons, non-binary and
homosexual couples, and others who could also choose to become parents by means of
surrogacy326.

Although the restriction on the commercialization of surrogacy in India was imposed

with the goal of eliminating exploitation and unethical activities, it is questionable
whether it is sufficient to entirely eliminate the issues related to surrogacy. The restriction
has led to several unexpected effects, including significant financial challenges for
surrogate mothers and the growth of unregulated services. Moreover, the ban on paid
surrogacy raises questions regarding individual autonomy and reproductive rights. A
more thorough strategy that incorporates the various social, ethical, and economic
components of surrogacy may be essential to guarantee the welfare of everyone involved.

2. Suggestion-

To remedy the shortcomings of the Surrogacy Regulation Act 2022 in India, numerous
changes might be explored to provide efficient oversight and uphold the rights of
everyone involved in the procedure of surrogacy. Here are some possible solutions:

323
Ban on Commercial Surrogacy in India. (n.d.). Ban on Commercial Surrogacy in India.
https://legalserviceindia.com/legal/article-11903-ban-on-commercial-surrogacy-in-india.html
(last visited 6.08.2023)
324
Kunal Debnath, Sreetama Chatterjee, The Surrogacy (Regulation) Act, 2021: Analyzing the
effectiveness of India's ban on commercial surrogacy, 01 March 2023, https://doi.org/10.1002/sgp2.12061
(last visited 6.8.2023)
325
Panda and Sonal Muluk, D. T. (2023, January 20). Commercialization of surrogacy in India: The effects
of globalisation. Times of India Blog. https://timesofindia.indiatimes.com/blogs/voices/commercialization-
of-surrogacy-in-india-the-effects-of-globalisation/ (last visited 6.8.2023)
326
Ibid

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Enhanced Monitoring and supervision: The regulatory framework ought to comprise
mechanisms for better monitoring and supervision of clinics offering surrogacy and
agencies. Regular inspections, audits, and reporting obligations may assist in
ensuring compliance with the law and avoid malpractice327.

Complete Education and Counseling: Intending couples and surrogate should get
thorough education and counseling regarding the whole surrogacy process, particularly
its medical, legal, and emotional elements. This may help avoid cases of
misinterpretation, coercion, or exploitation328.

Ethical pay: While the law restricts the commercialization of surrogacy, it might allow
for adequate and ethical pay to surrogates for their term, effort, and potential dangers
involved in the procedure. This remuneration should be unambiguous and transparent,
seeking to preserve the privileges and health of the surrogate mothers.

Shortened Court processes: While court involvement was established to prevent

profiteering and exploitation, the processes might be shortened to enhance efficiency and
prompt resolution of cases. This would eliminate needless delays while retaining the
required monitoring329.

Inclusivity and Diversity: The legislation might be broadened to include clauses that
reflect the different nature of families and intended parents. This will guarantee that the
legislation is inclusive and doesn't prejudice against any group330.

Regulation of International Surrogacy: If appropriate, the legislation might handle the

issues and complications of international surrogacy agreements. Clear procedures and
protections should be developed to protect the rights of all parties, particularly when
surrogacy includes foreign persons331.

Support for Surrogate Mothers: The legislation might require the construction of support
structures and assets for surrogates, including the availability of healthcare, psychological
aid, and legal aid. This would safeguard their well-being during the procedure332.

Ethics Committees: Establishing autonomous ethics committees at surrogacy centres may

assist in guaranteeing that all parties engaged are making educated and ethical judgments.

327
What does the new law on surrogacy say? (2023, March 2). What Does the New Law on Surrogacy Say?
- the Hindu BusinessLine. https://www.thehindubusinessline.com/blexplainer/explainer-what-does-the-
new-law-on-surrogacy-say/article66570771.ece (last visited 6.08.2023)
328
Ibid
329
Ibid
330
Government of India Ministry of Health and Family Welfare (Department of Health Research)
Notification New Delhi, the March 2022,
https://www.wbhealth.gov.in/other_files/All_Forms_of_Surrogacy_DRAFT_Rules_March,_2022.pdf
331
Ibid
332
Ibid

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These committees may assess and approve surrogacy agreements based on ethical
grounds333.

Research and Data collecting: The legislation might force the collecting of extensive
information on surrogacy cases, results, and experiences. This data may influence future
policy choices, highlight possible difficulties, and help to the continual development of
the regulatory environment334.

Regular modifications and Amendments: The regulatory structure should allow for
periodic assessments and modifications to address new difficulties and guarantee that the
legislation remains efficient and pertinent over time335.

Thus, dealing with the defects of the Surrogacy Regulation Act 2022 in India necessitates
an extensive strategy that reconciles the interests of all stakeholders, guarantees ethical
practices, and safeguards the rights and welfare of surrogates, intending parents, and
offspring born by means of surrogacy.

333
Indulia, B., S., & Bhardwaj, P. (2022, June 23). Surrogacy (Regulation) Rules, 2022 | SCC Blog. SCC
Blog. https://www.scconline.com/blog/post/2022/06/23/surrogacy-regulation-rules-2022/
(last visited 6.08.2023)
334
Ibid
335
Ibid

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