Libertatem Magazine - - Igniting Minds -


case of a sur­ro­gacy trans­ac­tion, the pri­mary dif­fi­culty lies in rec­og­niz­ing its ex­act na­ture. Some view it as an in­dus­try, some as a ser­vice or as a con­tract for cer­tain pur­poses. The ab­sence of uni­form reg­u­la­tions but the pres­ence of cer­tain reg­u­la­tions which may pro­hibit such trans­ac­tions adds to the com­pli­ca­tions of a sur­ro­gacy trans­ac­tion. The cen­tre of

a sur­ro­gacy trans­ac­tion is the in­volve­ment of a third party. 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. The need for the, de­lib­er­a­tion and adop­tion of sur­ro­gacy as a part of so­ci­ety in gen­eral and le­gal sys­tem in par­tic­u­lar is felt by the le­gal fra­ter­nity.


Legally, a sur­ro­gacy ar­range­ment has been de­fined by the In­dian Supreme Court as an agree­ment whereby a woman agrees to be­come preg­nant for the pur­pose of ges­tat­ing and giv­ing birth to a child she will not raise, but hand over to a con­tracted party. Of­ten it is done with in­ten­tion of en­ter­ing into a con­tract, at times the in­ten­tion of the par­ties can be in­ferred from the trans­ac­tion. In com­mon par­lance, the term refers to ar­range­ment made be­tween the two par­ties un­der which a woman (sur­ro­gate mother) agrees to (i) to do­nate the egg and by ar­ti­fi­cial in­sem­i­na­tion, carry a fe­tus in the em­bryo of her own and give birth; (ii) to carry the term of preg­nancy with the help of fer­til­ized egg. In the case of sur­ro­gacy, a woman un­der­takes to bear a child for a child­less cou­ple and agrees to re­lin­quish all parental rights at the birth of the child for a pay­ment or other con­sid­er­a­tion which be­comes void for its con­tra­ven­tion of statu­tory en­act­ments, since the con­tract in­volves bar­ter­ing of hu­man lives and also, in­fringes pub­lic pol­icy. As per the pro­vi­sions of In­dian Con­tract Act, 1872 le­gal con­tracts can be ei­ther, Gen­eral con­tract, or Spe­cial Con­tracts or Spe­cific con­tracts. How­ever, for them to be le­gal, it must sat­isfy all the re­quire­ments of a con­tract as laid down un­der the In­dian Con­tract Act, 1872.

There­fore it can be seen that sur­ro­gacy agree­ments have to be drafted with great care and cau­tion, since there are sev­eral fac­tors sur­round­ing sur­ro­gacy, which are sen­si­tive, such as: 1. The sub­ject mat­ter of the con­tract is a hu­man be­ing;

2. The ob­ject of the con­tract is to con­ceive preg­nancy by ar­ti­fi­cial ways of re­pro­duc­tion which was not yet known the so­ci­ety at large;

3. There is a com­pen­sa­tion or mone­tary con­sid­er­a­tion to be given to sur­ro­gate mother/ges­ta­tional mother;

4. Sev­eral eth­i­cal con­sid­er­a­tions sur­round­ing sur­ro­gacy trans­ac­tion;

5. The iden­tity and pri­vacy of the sur­ro­gate mother;

6. The rights of the par­ties be­fore, dur­ing and af­ter the con­tract in­clud­ing that of the would be sur­ro­gate child;

7. Risk at­tached to the life/body of the sur­ro­gate mother; 8. Clause with re­spect to the le­gal sta­tus of the child.

It is worth­while to note that sur­ro­gacy trans­ac­tions are be­ing en­tered into de­spite not hav­ing le­gal recog­ni­tion. Agree­ments are be­ing made, en­tered into, be­ing fol­lowed and are be­ing ex­e­cuted the sup­port of all those in­volved in the sur­ro­gacy trans­ac­tion. There are in­sti­tu­tions, or­ga­ni­za­tions or com­pa­nies, which are of­fer­ing sur­ro­gacy ser­vices by en­sur­ing and pro­vid­ing com­pre­hen­sive sur­ro­gacy ser­vices in­clud­ing that of:

1. Le­gal com­pli­ances; 2. Me­dia ser­vices and med­i­cal op­er­a­tions in­volved therein; 3. Com­mer­cial, tax­a­tion and re­lated as­pects;

4. Se­lec­tion of or data­bases of Sur­ro­gate moth­ers will­ing to go for sur­ro­gacy ser­vices.

It may also be noted that some law firms in In­dia have also started their area of prac­tice pro­vid­ing sur­ro­gacy ser­vices or en­sur­ing le­gal com­pli­ances with re­spect to sur­ro­gacy trans­ac­tion. Sur­ro­gacy agree­ments are be­ing drafted as a mat­ter of le­gal ser­vice from some of the re­puted law firms in In­dia.


As­sum­ing that a sur­ro­gacy con­tract is le­gal, if any of the par­ties to the sur­ro­gacy con­tract fails to per­form any of the above men­tioned steps, then as per the pro­vi­sions of the In­dian Con­tract Act, 1872, an ac­tion for breach of con­tract can be ini­ti­ated. At the same time, if we were to say a sur­ro­gacy agree­ment can never be le­gal or are in­valid, then de­spite ex­e­cut­ing a con­tract, par­ties can no longer en­force the same through the courts of law. The prob­lem per­tain­ing to a sur­ro­gacy agree­ment or a sur­ro­gacy trans­ac­tion oc­curs when any dis­pute arises, ei­ther be­cause of a clash of in­ter­ests, or non-per­for­mance of any con­di­tions or the terms of the con­tract. When such a dis­pute is brought be­fore the court, it may not en­force the sur­ro­gacy agree­ment de­spite the fact it is be­tween con­sent­ing par­ties due to the il­le­gal na­ture of such a con­tract.

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