Transnational and commercial surrogacy

contracts: Globalised world.

2

Table of Contents

S. No Title Pg No

1. Introduction

3

2. What is Surrogacy?

4

3. Surrogacy in the Indian Scenario and the issues involved 5-6

4. "Do Surrogacy contracts amount to baby selling?" : Jurisprudential

aspect.

7-10

5. Legal complexities in the arena of transnational and

commercial Surrogacy 11-12

6. Comparative Legal Regimes of transnational and commercial

Surrogacy

13-15

7. Conclusion and Recommendation 16-18

3

Introduction

"The aching desire for a child felt by those unable to conceive by normal means, poverty and the

profit motive can be a terrible combination resulting in exploitation(especially of the poor),

abuse of human rights and the commoditization of children."1

How do two sets of women involved in surrogacy – the transnational clients and the surrogates

themselves – negotiate the culturally anomalous nature of surrogacy within the unusual setting of

India? The setting is unusual partly because there are vast economic and cultural differences

between the buyers and sellers of surrogacy in India. Additionally, there are no laws regulating

the surrogate–client relationship. As a consequence, (national and international) clients are able

to take advantage of the client-friendly policies of private clinics and hospitals, where doctors are

willing to offer options and services that are banned or heavily regulated in other parts of the

world.

History of surrogacy- One of the first mentions of the practice of surrogacy is in the Old

Testament. It tells the story of Sarah,Abraham’s wife. Sarah was unable to conceive and in a

desperate attempt to carry on the family line, she persuaded Abraham to impregnate her maid,

Hagar. Hagar conceived and gave birth to Ishmael whom Sarah and Abraham raised as their

own son (Kerian, 1997). Hindu mythology also gives a narrative of surrogacy in the Bhagvata

Purana, Upon having been informed by the oracles that he would be killed by one of his

nephews, the evil king of Mathura, Kansa, imprisoned his sister Devaki along with her husband,

Vasudeva..Everytime she gave birth, Kansa smashed the child’s head to the floor, killing it.

When Devaki conceived for the seventh time, she and Vasudeva prayed desperately to gods to

intervene. The gods responded, summoning the goddess Yogamaya to transfer an embryo from

the womb of Devaki to the womb of Yashoda- Vasudeva’s other wife who lived across the river

Yashoda gave birth to Krishna, and secretly raised the child, informing Kansa that Krishna was

stillbirth and as such indicated no threat. Thus the genetic child of Vasudeva and Devaki is

incubated in and delivered from another womb .

What is Surrogacy?

1 John Pascoe

4

Surrogacy is an Assisted Reproductive Technology by which intended parents (IP), who cannot

conceive or carry the fetus by themselves, are nonetheless able to give birth as a woman will bear

the child for them. Surrogacy is a complex phenomenon that is organized in different ways and

which implies different politics around the world. For example, ‘traditional surrogacy’ occurs

when the surrogate is also the egg provider, while ‘gestational surrogacy’ refers to carrying a

fetus without being an egg provider. There is also a difference between ‘altruistic surrogacy’,

implying no financial payment, and ‘commercial surrogacy’, where a financial contract exist

between people involved in the child conception. Numerous intermediaries are generally implied

in the procedure, such as agencies recruiting surrogates and setting up contracts as well as

biomedical clinics carrying out technical procedures. This reproductive practice is highly

controversial and produces many societal and bioethical debates that are even more complex in

the context of cross-border reproductive care (CBRC) studied in this book. Indeed, modes of

access and prices vary singularly from one country to the other and many IP engage in

transnational journeys. On the global map, India has authorized gestational and commercial

surrogacy in 2002, although there is no law unifying the practices or institution controlling them.

Guidelines exist but are not compulsory; they are more or less followed depending on each

clinic. This absence of regulation has allowed a proliferation of clinics and facilitated CBRC

towards this country. Offering one of the cheapest surrogacy in the world, with highly trained

physicians and a numerous work force of women, India is an important destination for people

having parental projects not allowed or not affordable in their own country, generally a rich one.2

2 DasGupta, Sayantani & Dasgupta, Shamita Das (eds.), Globalization and Transnational Surrogacy in India: Outsourcing Life.[Accessed on 20 September 2015]

5

Surrogacy in the Indian Scenario and the issues involved

In India, surrogacy transactions are very rampant and foreigners come to India in search of a

surrogate. As such, it is being considered as the hub of surrogacy in the world. It is also being

considered as a suitable place for the surrogacy industry which is regarded as the genetic pool

banks of India. India is emerging as a leader in commercial surrogacy and a destination of the so

called fertility tourism, because of low cost of medical services, easy availability of surrogate

wombs, abundant choices of donors with similar racial attributes and lack of an effective law to

regulate these practices. Specifically, no Indian law governs or regulates or prohibits surrogacy

till date. Surrogacy arrangements in India are taking place in ignorance of law to just cater to the

needs of the parties involved in the surrogacy transaction.

‘Surrogacy contract’ and National Guidelines for Accreditation, Supervision and Regulation of

ART Clinics in India, 2005 ("National guidelines on ART”) are not sufficient to deal with the

regulatory aspect of surrogacy transaction as it gives rise to questions of citizenship and identity

that are not addressed adequately. To deal with such questions of law, issues and situations, a

proper and effective regulatory framework is required that is capable of covering, governing,

defining and regulating relationships and allied matters arising out of a surrogacy transaction.

Moral issues

The moral issues associated with surrogacy are pretty obvious, yet of an eye-opening nature.

This includes the criticism that surrogacy leads to commoditization of the child, breaks the bond

between the mother and the child, interferes with nature and leads to exploitation of poor women

in underdeveloped countries who sell their bodies for money. Sometimes, psychological

considerations may come in the way of a successful surrogacy arrangement.

6

Legal issues

The legal issues related with surrogacy are very complex and need to be addressed by a

comprehensive legislation. Surrogacy involves conflict of various interests and has inscrutable

impact on the primary unit of society viz. family. Non-intervention of law in this knotty issue

will not be proper at a time when law is to act as ardent defender of human liberty and an

instrument of distribution of positive entitlements. At the same time, prohibition on vague moral

grounds without a proper assessment of social ends and purposes which surrogacy can serve

would be irrational.

Active legislative intervention is required to facilitate correct uses of the new technology i.e.

ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto. The

need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements

and prohibit commercial ones.

"Do Surrogacy contracts amount to baby selling?" : Jurisprudential aspect.

7

According to critics and medical professionals, in cases of commercial surrogacy, the payment of

the surrogate mother constitutes baby selling and thus is morally wrong and illegal . Such

arrangements are considered to be coercive and exploitative as they require the gestational

mother to give up certain legitimate moral claims in relation to her pregnancy and the child .

There can be general conceptualization that the reason for surrogate mothers participating in

such arrangements is economic inducement especially in less developed countries like India,

where poor women consider their wombs as a source to support their livelihood . Such

arrangements can be considered to be exploitative in nature as they are not only encouraging

baby selling but also diminish the dignity of women’s reproductive capacities and the inherent

value of the children by commodifying them .

The jurisprudential argument supportive of commercial arrangements is that in a rights based

society a woman has a right to procreate and can in furtherance of that right claim monetary

compensation for the gestation period from the adoptive parents. Such an argument can be

justified in the light of Dworkin’s interpretation of the concept of right that an individual has a

‘right to do a wrong’ i.e. to commit mistakes and thereafter correct himself/ herself without any

requirement of state intervention . However such an argument cannot stand valid in the eyes of

law because commercial surrogacy arrangements are not only concerned with the rights of the

surrogate mother but due consideration is also to be given to the interests of the child, who in

such a case is treated as a commodity and thus his/ her value is undermined by such an approach

to fulfill the desire of parenting and that his/ her value cannot be determined in terms of

pecuniary limits .

Major disagreement with commercial surrogacy arrangements is the economic compulsion that

forces women to become surrogate mothers, thus it can be observed that it is not her free will

that encourages her but the responsibility to incur her family expenses through such work. Such

arrangements can be termed as being exploitative because these women lack the bargaining

power as compared to the economically well settled adoptive parents. Thus there is a need for a

legal mechanism to protect these women from being exploited in a manner that economic factor

is not the sole reason for entering into commercial surrogacy contracts.

8

In comparison with commercial surrogacy arrangements, Altruism and voluntarism emerge as

moral virtues and thus many states are taking action to prohibit commercial surrogacy but are

leaving the whole area of non commercial surrogate practices untouched . Altruistic surrogacy

refers to surrogacy agreements in which the surrogate is not paid for her services and is

motivated mainly by a desire to help an infertile couple to have a child of their own. Such form

of surrogacy can be thought of as the consensual provision of a valuable service for another, and

the transfer of the child is governed by the idea that its interests will be well met by transferring

parental responsibility for it . There are surrogates who within the family wish to re- experience

and ease of being pregnant but who do not want to raise another child by themselves. They are

strongly motivated by the empathy with the infertile couple, having found the experience of

having children to be very important in their own lives, and they desire to help another couple

share this special experience . Such arrangements can be justified as voluntary consent of the

parties is present and the interests or choices of the child are not disregarded.

Even though altruistic arrangements are non commercial in nature but in some cases, a woman

can be socially forced by her family (husband, family members) or friends to act as a surrogate

mother . Here, the element of consent is absent and thus such arrangements cannot be justified as

are more exploitative in nature because in commercial arrangements, at least the woman is paid

for her services and can terminate the contract if wishes to, but here the arrangement is internal

and leaves no choice for the woman but to follow the will of the husband as is the case in a

patriarchal family system like in India. Thus even in such cases, there is a requirement to protect

woman from being forced to enter into surrogacy contracts and ensure that surrogacy contracts

should be entered only if the surrogate mother desires to do so.

It is often argued that surrogacy contracts harm societal interests and thus cannot be enforceable

even if individual’s right to procreate is at stake. The argument of balancing competing interests

between individual’s right and society’s interest wherein, the latter is given preference cannot

stand according to Dworkin, as for the validity of such an argument both interests have to be on

the same plane or else even in the process of balancing, public interest would always win .

In countries like India, where there is no legislation regulating surrogacy contracts, the parties

participating in surrogacy arrangements can be covered under the informal system as they are not

9

covered and not regulated under the formal system which provides formality and protection of

law to the corners of the society taken on board in terms of precise definition . Thus the parties

under the informal system come up with own norms to regulate their social relations with each

other which also implies that whether law recognizes or not, range of people do exist and

function while organizing their own affairs independent of law which attaches much more

centrality to the individual as compared to the formal system. The rights model of dynamic

jurisprudence is based on mutual respect for running a relationship of trust and intimacy. Thus

the surrogate mother and adoptive parents have to recognize the rights of each other and develop

respect through which flexible norms can be created considering interests of both parties as well

as the child. However a correlative relation can been observed between the rights and duties of

the parties which is based on constant negotiations for example, a surrogate mother has a right to

get medical expenses which is correlative of the duty of the adoptive parents to incur her medical

expenses. Another dimension of such correlative relation is that it is the right of the adoptive

parents to have a healthy child and it is the duty of the surrogate mother to ensure that she does

not indulge into activities like smoking, drinking, consuming drugs or having a careless attitude.

The jurisprudence of the informal sector ought to have an impact on formal jurisprudence when

boundary is permeable.

Though these norms are created by the parties themselves, in absence of regulation, exploitation

is most likely to occur. Thus permeability should be allowed in terms of regulation under formal

system but in a manner which does not completely do away with the informal system of

managing their own affairs, i.e. trace of forms of dynamic jurisprudence are ought to be located

in the formal jurisprudence. It may make more practical sense to regulate surrogacy providing

the parties with some legal recourse against exploitation rather to ban it completely as in case of

formal system. The regulation would be in terms of eligibility to enter into such contracts, age

limit and free consent. It would also impose certain liabilities on the professional doctors in case

the guidelines set are violated.

In such a way, the rights of the parties and interests of the child would be secured, however

commercializing would be rendered illegal and a surrogacy contract would not be enforceable if

economic consideration is involved or free consent is absent. By not completely banning

surrogacy arrangements, space is provided to a surrogate mother to enjoy her right to procreate in

10

a rights based society without state intervention .

Surrogacy contract which disregards the interests of the child cannot be justified. In cases of

altruistic surrogacy, where the countries are silent in terms of regulation like India, contract laws

and courts are prevented from being used as recourse to solve conflicts among participants in the

surrogacy contract which also implies that questions of family and social control within families

as not the business of the State; they are private matters to be resolved by individuals rather than

an adjudicator.In a case where permeability is allowed and surrogacy relations are regulated

formally, the court has to realize that the child lacks legal capacity to take decisions on major

matters and thus a more child self centered view of the family and social future is to be adopted.

The court should have a good faith concern for the child’s welfare. Safeguards are required in

cases where no thought has been given to the interests of the child in a surrogate contract. The

Court has to decide keeping in view the best interest approach which can be summed up as:

1.Disputes concerning custody which come before the courts are to be decided according to the

welfare of the child in consideration of the functions of parenthood as to who is in best position

to perform .

2. The control over the upbringing of child should be given to someone interested in protecting

them . The court has to decide over the issues of who would be the primary care taker and

stability of home environment which is integral for the development of the child’s personality.

3. In case, none of the adults accept the child, the solution is not to force custody on them, but to

receive the minor into care.

4. Blood ties don’t guarantee that this function will be well performed, strong bonds should be

established .

5. In the event the surrogate decides that she wishes to keep the baby, the courts will decide the

issue of parental rights in accordance with the best interest test much like that which is employed

in divorce cases . 3

.

Legal complexities in the arena of transnational and commercial Surrogacy

3 Legal Service India. Surrogacy contracts [ONLINE] Available at:http://www.legalserviceindia.com. [Accessed 21 September 2015]

11

Legality of the concept of surrogacy is Jack T. Skinner v. State of Oklahoma4 concerned it would

be worthwhile to mention that Article 16.1 of the Universal Declaration of Human Rights 1948

says, inter alia , that “men and women of full age without any limitation due to race, nationality

or religion have the right to marry and found a family”.

The Judiciary in India too has recognized the reproductive right of humans as a basic right. For

instance, in B. K. Parthasarthi v. Government of Andhra Pradesh5 the Andhra Pradesh High

Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to

privacy” and agreed with the decision of the US Supreme Court in 6which characterized the

right to reproduce as “one of the basic civil rights of man”. Even in Javed v. State of Haryana7

though the Supreme Court upheld the two living children norm to debar a person from contesting

a Panchayati Raj election it refrained from stating that the right to procreation is not a basic

human right.

Now, if reproductive right gets constitutional protection, surrogacy which allows an infertile

couple to exercise that right also gets the same constitutional protection. However, jurisdictions

in various countries have held different views regarding the legalization of surrogacy. In

England, surrogacy arrangements are legal and the Surrogacy Arrangements Act 1985 prohibits

advertising and other aspects of commercial surrogacy.In the US also, commercial surrogacy

seems prohibited in many states. In the famous Baby M case8 the New Jersey Supreme Court,

though allowed custody to commissioning parents in the “best interest of the child”, came to the

conclusion that surrogacy contract is against public policy.

It must be noted that in the US, surrogacy laws are different in different states. If the 1988 Baby

M case in the US forced many to put on legal thinking caps, then that year also saw Australia

battling with societal eruptions over the Kirkman sisters’ case in Victoria. Linda Kirkman

agreed to gestate the genetic child of her older sister Maggie. The baby girl, called Alice, was

handed over to Maggie and her husband at birth. This sparked much community and legal debate

and soon Australian states attempted to settle the legal complications in surrogacy. Now in

4 42 Cal.App.4Th 718 (1996)5 AIR 2000 A. P. 1566 316 US 5357 (2003) 8 SCC 369

8 537 A.2d 1227

12

Australia, commercial surrogacy is illegal, contracts in relation to surrogacy arrangement

unenforceable and any payment for soliciting a surrogacy arrangement is illegal.

Complexities and conflicts regarding the status of motherhood

How surrogacy can lead to an array of legal complexities regarding motherhood was shown in

the case of Jaycee B. v. Superior Court9.A child was born to a surrogate mother using sperm and

eggs from anonymous donors because the infertile couple was unable to create their own embryo

using the in vitro fertilization techniques. The couple chose to use anonymous donors rather than

asking the surrogate to use her own eggs because of the Baby M case in New Jersey in which the

surrogate had eventually refused to hand over the baby saying that she was its biological mother

and her right to raise the child pre-empted the commissioning parents’. The child thus had five

people who could lay claim to parenthood : a genetic mother, a commissioning mother, a

surrogate mother, a genetic father and a commissioning father. One month prior to the birth of

the baby Jaycee the intended parents John and Luanne separated and John sought to rescind his

obligations under the surrogacy contract so as to avoid having to pay child-support for Jaycee.

Luanne sought both custody and support from her ex-husband. The court battle continued and for

three years Jaycee did not have a legal parent. A Californian court granted temporary custody of

the baby Jaycee to Luanne and ordered John to pay for child-support.

Different countries have taken different stands to address this issue. In UK, the surrogate mother

is the legal mother, vide section 27(1) of the Human Fertilization and Embryology Act 1990.

Section 30 of the said Act at the same time provides that if the surrogate mother consents to the

child to be treated as the child of the commissioning parents the court may make a parental order

to that effect. This section also prohibits giving or taking of money or other benefit (other than

expenses reasonably incurred) in consideration of the making of the order or handing over of the

child.

9 42 Cal.App.4Th 718 (1996)

13

Comparative Legal Regimes of transnational and commercial Surrogacy 10

India

Commercial surrogacy has been legal in India since 2002.  India is emerging as a leader in

international surrogacy and a sought after destination in surrogacy-related fertility tourism.

Indian surrogates have been increasingly popular with fertile couples in industrialized nations

because of the relatively low cost. Indian clinics are at the same time becoming more

competitive, not just in the pricing, but in the hiring and retention of Indian females as

surrogates. Clinics charge patients roughly a third of the price compared with going through the

procedure in the UK.

Surrogacy in India is relatively low cost and the legal environment is favorable. In 2008, the

Supreme Court of India in the Manji's case (Japanese Baby) has held that commercial surrogacy

is permitted in India with a direction to the Legislature to pass an appropriate Law governing

Surrogacy in India. At present the Surrogacy Contract between the parties and the Assisted

Reproductive Technique (ART) Clinics guidelines are the guiding force.

Giving due regard to the apex court directions, the Legislature has enacted ART BILL, 2008

which is still pending and is expected to come in force somewhere in the next coming year. The

law commission of India has specifically reviewed the Surrogacy Law keeping in mind that in

India that India is an International Surrogacy destination.

Israel

 Israel the first country in the world to implement a form of state-controlled surrogacy in which

each and every contract must be approved directly by the state. In March 1996, the Israeli

government legalized gestational surrogacy under the "Embryo Carrying Agreements Law."

Surrogacy arrangements are permitted only to Israeli citizens who share the same religion.

10 Welcome to Surrogacy Laws India .2015. Welcome to Surrogacy Laws India. [ONLINE] Available at: http://www.surrogacylawsindia.com. [Accessed 22 September 2015].

14

Surrogates must be single, widowed or divorced and only infertile heterosexual couples are

allowed to hire surrogates. Due to the numerous restrictions on surrogacy under Israeli law, the

Israeli intended parents have turned to International Surrogacy. India is the preferred destination

because of its low costs. Then Intended Parents also turn to US surrogates where an added bonus

is an automatic US citizenship for the newborn.

 

Japan

 In March 2008, the Science Council of Japan proposed a ban on surrogacy and said that doctors,

agents and their clients should be punished for commercial surrogacy arrangements.

Netherlands and Belgium

 Commercial surrogacy is illegal in Belgium and the Netherlands.

 

United Kingdom

 Surrogacy arrangements have been legal in the United Kingdom since 2009. Whilst it is illegal

in the UK to pay more than expenses for a surrogacy, the relationship can be recognized under

Section 30 of the Human Fertilization and Embryology Act, 1990 under which a court may make

parental orders similar to adoption orders. How this came about is one of those occasions when

an ordinary person can change the law.

 

United States

 Many states have their own state laws written regarding the legality of surrogate parenting. It is

most common for surrogates to reside in Florida and California due to the surrogacy-

accommodating laws in these states. With the accommodating laws of the State of California and

the long overseas deployments of husbands, wives have found surrogacy to be a means to

supplement military incomes and to provide a needed service. It is illegal to hire a surrogate in

New York, and even embryonic transfers may not be done in New York.

15

At this point, the laws surrounding surrogacy are well defined in the State of Pennsylvania, and

surrogacy is beginning to become common in the state of Delaware.

Canada

 Commercial Surrogacy is prohibited under the Assisted Human Reproduction Act, 2004.

Altruistic surrogacy remains legal. In the province of Quebec, contracts that involve surrogacy

are unenforceable.

France

 In France, since 1994 any surrogacy arrangement whether it is commercial or altruistic is illegal,

unlawful and prohibited by the law.

 

Hungary

Commercial surrogacy is illegal in Hungary.

16

Conclusion and Recommendation

To sum up, surrogacy contracts which involve payment amount to baby selling and there is a

need for a formal legal mechanism to protect such women from being exploited on economic

necessity grounds. This also applies to surrogacy contracts which do not amount to baby selling

but involve social factors compelling women to act as surrogate mothers. However altruistic

arrangements deductive of social and economic compulsions can be justified on basis of social

good and thus such arrangements need to be given certain amount of formality in order to

regulate the relations between the parties and to ensure that surrogate women are not exploited

which is the major concern of feminist ideology. Thus such a solution would not only respect the

autonomy of women to procreate in a rights based society but also provide a degree of protection

to them to the extent that compelling factors don’t force them to enter into arrangements not

desired by them.

A further concern regarding the custody of child when conflict arises can be addressed by courts

through adoption of best interest approach and not the custody model based on case to case

analysis. Such issues would be undertaken only when the conflict arises under non commercial

surrogacy agreements which due to permeability into the formal sector can be regulated to the

extent that the flexibility of informal arrangements is not negated completely. Such an approach

of regulation is better than out rightly banning surrogacy arrangements which do not commodify

the womb or the child.11

 International Surrogacy involves bilateral issues, where the laws of both the nations have to be

at par/uniformity else the concerns and interests of parties involved will remain unresolved and

thus, giving due regard to the concerns and in order to prevent the commercialization of the

Human Reproductive system, exploitation of women and the commodification of Children, the

law commission has submitted it’s report with the relevant suggestion:

11 Legal Service India Surrogacy contracts [ONLINE] Available at:http://www.legalserviceindia.com. [Accessed 21 September 2015]

17

  

The Law Commission of India has submitted the 228th Report on “NEED FOR

LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS

AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY.” The

following observations had been made by the Law Commission: -

 The Report has come largely in support of the Surrogacy in India, highlighting a proper way of

operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is

another worrying factor, which the law has to address. The Law Commission has strongly

recommended against Commercial Surrogacy. However, this is a great step forward to the

present situation. We can expect a legislation to come by early 2011 with the passing of the

Assisted Reproductive Technology Bill aiming to regulate the surrogacy business

Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of

society viz. family. Non-intervention of law in this knotty issue will not be proper at a time when

law is to act as ardent defender of human liberty and an instrument of distribution of positive

entitlements. At the same time, prohibition on vague moral grounds without a proper assessment

of social ends and purposes which surrogacy can serve would be irrational. Active legislative

intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish

the cocooned approach to legalization of surrogacy adopted hitherto. The need of the hour is to

adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit

commercial ones.

The draft Bill prepared by the ICMR is full of lacunae, nay, it is incomplete. However, it is a

beacon to move forward in the direction of preparing legislation to regulate not only ART clinics

but rights and obligations of all the parties to a surrogacy including rights of the surrogate child.

Most important points in regard to the rights and obligations of the parties to a surrogacy and

rights of the surrogate child the proposed legislation should include may be stated as under:

1. Surrogacy arrangement will continue to be governed by contract amongst parties, which will

contain all the terms requiring consent of surrogate mother to bear child, agreement of her

18

husband and other family members for the same, medical procedures of artificial insemination,

reimbursement of all reasonable expenses for carrying child to full term, willingness to hand

over the child born to the commissioning parent(s), etc. But such an arrangement should not be

for commercial purposes.

2. A surrogacy arrangement should provide for 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, which have been noticed in cases of adoptions, 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 which is resorted to if biological (natural) parents

and adoptive parents are different.

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. The birth certificate of the surrogate child should contain the name(s) of the commissioning

parent(s) only.

7. Right to privacy of donor as well as surrogate mother should be protected.

8. Sex-selective surrogacy should be prohibited.

9. Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971

only.