1st Rustavi Journal Club Seminar

Commercial surrogacy banning in India made

couples find refuge in Georgia

DTMU Rustavi Campus

19 December 2022 (Monday) -14:00
Surrogacy in India
& its legal aspects

Jinal Rathod, Riashree Penubothu,David melvin,

Rajannan RJ, Kunhammaram Mashood, Shikha
Suresh,Aryan Padmanabhan,Deepak Mathew, Ann
Thomas.
19 Dec 2022
 Article
❖ Singh M. Surrogacy in India and its
Legal Aspects. (2020) J. Acclaims.
10. pp.1-17
 Search Strategy
❖ Pen acclaims multidisciplinary
national journal
❖ Elsevier
❖ SAGE open
These journal sites provided us with
necessary information required
 Introduction
❖ This article focuses on commercial aspect
of surrogacy in India.
❖ India has become a fertility tourism
hotspot, with an estimated 400 million
dollars being spent bycouples from
abroad.
❖ Analyses meaning of surrogacy in various
aspects, legal aspects,
benefits&disadvantages of commercial
surrogacy
01 Types of
surrogacy

Surrogacy is derived
from latin word
“subrogare” which means
appointed in place of.

20
22
 Types of surrogacy

Traditional/ Partial/
Natural Gestational/ Full Commercial Altruistic
● Intending father donates the ● No monetary benefits
● Surrogate mother only acts
sperm. ● Acts as a surrogate for surrogate mom.
as a carrier of embryo. ●
● A 3rd male donates the mother for Only medical expenses
● Egg & sperm are from
sperm if the intended parents monetary benefits of surrogate mom is
intended parents or
are two females, or a single covered by intended
anonymous donors.
parent. parents
02 Legal aspects of surrogacy in India
01 ICMR guidelines,2005

228th Law commission

02
report, 2009

03 Assisted Reproductive
Technology bill, 2014

04 Surrogacy Regulation bill,

2019

05 Surrogacy Regulation bill,

2020
 ICMR guidelines,2005 0
1

1. Capping on the age of surrogate mothers of 45 years of age.

2. No women should be more than thrice a surrogate mother in her lifetime.
3. A relative, friend, or an unknown person can act as a surrogate mother for a couple.
4. If a relative is acting as a surrogate mother then the relative should be in the same
generation as the commissioning mother.
5. Requirement of the surrogate mother to register herself as a surrogate mother in her
own name and to provide all necessary details in relation to the commissioning
parents such as names, addresses etc.
 228th Law commission report,2009 02

1. Surrogacy arrangement will continue to be governed by contract amongst parties, which will
contain all the terms, But such an arrangement should not be used for commercial purposes.
2. A surrogacy arrangement should provide financial support for surrogate child in the event
of death of the commissioning couple or individual before delivery of the child, or divorce between the intended
parents and subsequent willingness of none to take delivery of the child.
3. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
4. One of the intended parents should be a donor as well, because the bond of love and affection
with a child primarily emanates from biological relationship. Also, the chances of various kinds
of child-abuse will be reduced. In case the intended parent is single, he or she should be a donor to be able to
have a surrogate child.Otherwise, adoption is the way to have a child
5. Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning
parent(s) without there being any need for adoption or even declaration of Guardian.
6. Only the names of the commissioning parents must be mentioned on the birth certificate.
7. Right to privacy of donor as well as surrogate mother should be protected.
8. Prohibition of sex-selective surrogacy.
9. Cases of abortions should be governed by the Medical Termination of Pregnancy Act, 1971 only.
 Assisted Reproductive
03

Technology bill, 2014

1. Only a woman who is between 21 to 35 years of age can act as a surrogate,
2. Mentions conditions under which a foreign couple can seek surrogacy in India
3. Compensation to be paid will be a private arrangement between the commissioning
parents and the surrogate, ART clinics have no role to play in it
4. According to the bill, live-in couples, single parents and homosexuals are disqualified
from having a child through surrogacy
Surrogacy Regulation bill, 2019 04

The Surrogacy (Regulation) Bill, 2019 was introduced by the Union Cabinet, in the Lok Sabha on 15th of July 2019, with an aim to
promote altruistic surrogacy in India.

According to the section 4(ii) of the Surrogacy (Regulation) Bill, 2019, following are the purposes for which surrogacy can be
permitted :-
1. Not for commercialization
2. Only for altruistic purposes
3. Not for producing children for sale, prostitution or other form of exploitation
4. For couples who suffer from proven infertility’
5. Any other conditions as specified through regulations.

❏ Earlier the surrogacy bill, 2019 was introduced in the year 2016 which lapsed with the dissolution of the 16th Lok Sabha.
❏ The bill was examined by the Standing Committee on Health and Family Welfare which submitted its report on August, 2016.
❏ A Rajya Sabha select committee chaired by Shri Bhupender Yadav was constituted to review the Surrogacy (Regulation) Bill, 2019.
The committee presented its report to the Rajya Sabha on 5th February.
Findings
1. It is not important that a surrogate mother should necessarily be a “close relative”.
2. A single women i.e. a widow or divorced women of Indian origin to be allowed the option of surrogacy.
3. Increasing the time period of insurance cover provided to a surrogate mother from 16 months to 36
months.
4. Omitting the 5-year waiting period for an infertile couple to avail surrogacy as provided in the definition of
surrogacy the bill, therefore recommended changes in the definition of the word infertility.
5. The order of custody and parentage as issued by the District Magistrate of a surrogate
child to be considered as the birth affidavit of the child.
6. The committee recommended that the ART bill which still awaits the nod of the parliament to be taken up
before the surrogacy bill in front of the house, as it deals with the technicality aspect of surrogacy.
7. Committee recommended a compensatory model of surrogacy as altruistic model can lead to exploitation
of a surrogate mother.
Surrogacy Regulation bill,
05
2020
Following the release of the report by the select committee, the Surrogacy (Regulation) Bill, 2020, was created by
incorporating the select committee's suggestions.
FEATURES:
1. The bill puts a complete ban on commercial surrogacy and allows altruistic surrogacy with provision for monetary
compensation to the surrogate mother for medical expenses and insurance coverage during the pregnancy or any other
prescribed expenses.
2. Surrogacy will only be permitted for following reasons:
I. Intending couples of Indian origin or an intending woman who suffer from proven infertility
II. Altruistic purposes
III. Not for commercial purposes
IV. Not for sale of children, or prostitution
V. For any other disease specified through regulations
 Contd.

3. The couple opting for surrogacy should have a “certificate of essentiality” and a “certificate of eligibility” issued by an
appropriate authority.
a. Following conditions are to be met before a certificate of essentiality can be issued to an intending couple:
I. Certificate of proven infertility of both or any one of them
II. Order of parentage and the custody of the child issued by a Magistrate’s court
III. Insurance coverage for a period of 36 months with the provision for covering postpartum delivery complications for
a surrogate mother.
b. Following conditions are to be fulfilled before a certificate of eligibility can be issued
to an intending couple:
I. The intending couple should be between following age spectrum
Wife between 23 to 50 years of age Husband between 26 to 55 years of age
II. The couple should not have a surviving child irrespective of the fact that the child is biological adopted, or surrogate,
expect if the child is mentally or physically challenged or suffers from a life -threatening disease
III. Other conditions which can be specified through regulations
Contd.
4. Eligibility criteria for a surrogate mother- following conditions must be fulfilled
I. Surrogate mother has to be in close relation to the intending couple
II. Being a married woman with a child of her own
III. Must be in 25 to 35 years of age spectrum
IV. Must not be a surrogate mother earlier
V. Have a certificate of medical and psychological fitness
VI. Surrogate mother cannot provide her own gametes for surrogacy
5. The child so born will be considered as a biological child of the intending couple. Further for the abortion of the
surrogate child the intending couple needs to have a written consent of the surrogate mother and authorization for
the same from the appropriate authority, which must be in consonance with the provisions of Medical Termination
of Pregnancy Act, 1971.
6. The surrogate with will have the option to withdraw from surrogacy before the implantation of embryo in her
womb.
Contd.

7. One or more appropriate authorities will be appointed by the central and state governments whose function will be as
follows:
I. Granting, cancelling or suspending the registrations of surrogacy clinics
II. Taking actions against breach of the act
III. Authority will have the power to accept or reject the applications for certificate of eligibility and surrogate mothers
within a period of 90 days.
8. National Surrogacy Board and State Surrogacy Boards shall be constituted by central and state governments. Constitution
of National Surrogacy Board is directed under section 14 of the bill and constitution of the State Surrogacy Boards is given
under section 23 of the bill.
9. The bill creates certain offences which include:
I. Penalty for undertaking and advertising commercial surrogacy
II. Exploitation of the surrogate mother
III. Selling or importation of human embryo or gametes
IV. Disowning or abandoning the surrogate child

● The above mentioned offences are mentioned under section 36 of the bill, whose contravention attracts a penalty of up to
10 years and a fine of up to 10 lakhs rupees.
Cases
I. Jan Balaz v. Anand Municipality
● Intended couples were Germans
● Twins produced from intending father’s sperm & an egg from anonymous donor
● Birth certificate issued as:
Commissioning father as twin’s father
surrogate mother as their mother
● Can’t secure German passport since German law doesn't recognize surrogacy as a means of becoming parent.
● Issued Indian passport since the surrogate mother was an Indian national.
DILEMMA:
A child born in India through surrogacy to a foreign
couple having an Indian surrogate mother is an Indian national or not?
03 Arguments
In Favour In Opposition

Second chance for infertile couples. Stems the belief that a woman is a baby making
machine & baby,the sellable commodity.

Surrogacy is seen as a service. Shortcut to earn huge sum of money.

Woman’s choice to enter a surrogacy contract Woman may be forced to enter surrogacy by
and to receive reward is her free will and her family due to monetary benefits.
government interference should be nil.

Exploitation of women by fertility clinics.

04 Conclusion
Legalization of commercial surrogacy in
01 2002 to its ban in 2019.

This may result in many unregistered clinics

02 & middle man.

Economic benefit from commercial

03 surrogacy is huge for India.

Strict laws regulating commercial surrogacy should

04 be made rather than banning it completely.
05 DISCUSSION
“Motherhood: All love begins and
ends there”

—Robert Browning