Surrogacy Laws: A look into the Shortcomings By Sagar Kadyan
Recent news of producer-director Karan Johar becoming single parent to twins, a boy and a girl, through surrogacy on February 7, 2017 has once again incited the topic of Surrogacy and related laws. The word ‘surrogate’ originates from Latin word ‘surrogatus’ which means a substitute. Thus a surrogate mother is a woman that substitutes a woman to bear the child on her behalf.
Why surrogacy? Answer to this question lies in human nature. Every human has a desire to achieve parenthood but sometimes due to medical (or social) reasons this desire remains unfulfilled. Childlessness leads to serious emotional and social stress and this leads to surrogacy that provides a viable solution to this problem. Since its legalization in 2002 commercial surrogacy (both at national and international levels) has been quite popular in India. Due to large number of low cost potential surrogates, availability of medical infrastructure and lax laws related to surrogates, commercial surrogacy has now developed into a flourishing industry. Usually all the expenses of surrogate mother are provided by intended parents along with an additional compensation.
But if it is a win-win situation for parents and surrogate mother then where the problem does arises? Phoebe Buffay, a character on the popular American sitcom Friends once explained surrogacy as “It's her egg and his sperm, and I'm just the oven, it's totally their bun."[i] But the situation is not as simple as it looks; there are several problems related to surrogacy and the main problem being the status of child. Phoebe might have said that the child is not her but what if the parents deny taking responsibility of the child? Such incident occurred in the case of Baby Manji Yamada v. Union of India[ii], Here a Japanese couple entered into a surrogacy agreement with an Indian lady. There were matrimonial disputes and the couple ended in a divorce. Genetic father wasn’t granted custody of the child being single male parent and the mother refused to accept it. Japan gave the child humanitarian visa and allowed the grandmother to take the child on behalf of her son, given his genetic relation with the baby. During the case, however, the Supreme Court recognized that the parent of a surrogate child may be a male and recognized surrogacy as a positive practice.[iii] Another problem with surrogacy is that it results in children being commercialized as “products” as a result some scholars also refer surrogacy as baby selling. Also if the surrogate mother refuses to part with the child or the intended parents refuse to accept the child then it robs the child of its legal identity. One such incident happened in the landmark case of Baby M[iv] where the surrogate mother refused to hand over the child, although the court directed that the child should be handed over and the surrogate mother should be given the right of visitation. Another incident happened in the case of Jaycee B. v. Superior Court[v] where to avoid the complications of Baby M’s case the couple chose to use sperm and eggs from anonymous donors but this lead to another dispute. Intended parents separated before birth of child and the commissioning father sought to rescind his obligations towards the child. In this case, along with the surrogate mother, there were a total of five people that claimed parenthood over the child. For over three years the child did not have a legal parent until the court granted temporary custody to commissioning mother. A Latest incident happened in 2012 when an Australian couple abandoned one of the twins born form surrogacy while selecting only one of them.[vi]
Legal issues related to surrogacy are diverse and lack of identity is only the tip of iceberg. Identity of legal parent, un-enforceability of surrogacy agreements, lack of control over surrogacy clinics etc are some of the major issues that require to be controlled by proper legislations. These issues require a comprehensive legislation to prevent misuse of surrogacy agreements. Even the law commission of India expressed its concern on this issue via its 228th report titled “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY”. In its report the law commission has given certain recommendations to regulate commercial surrogacy in India.[vii] Government of India has recently submitted an affidavit before Supreme Court of India stating that it does not support commercial surrogacy and only “altruistic surrogacy” will be provided to needy infertile married Indian couples after examination by competent authority. These were in concurrence with THE SURROGACY (REGULATION) BILL, 2016. Although surrogacy has many benefits such as prevention of hereditary diseases, satisfaction of single parents with modern lifestyle, avoidance of infertility treatment etc. but due to the difficulties mentioned above coupled with the fact surrogacy leads to potential medical and emotional disorders; surrogacy needs to be controlled.
[i] Friends: The One with Phoebe's Uterus (NBC television broadcast Jan. 8, 1998).
[ii] JT 2008 (11) SC 150.
[iii] Tarishi Verma, What are the surrogacy laws in India: Here is everything you need to know The Indian Express (2017), http://indianexpress.com/article/research/karan-johar-surrogate-children-yash-roohi-what-are-the-surrogacy-in-laws-in-india-here-is-everything-you-need-to-know-4555077/ (last visited Jun 27, 2017).
[iv] In re Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 02/03/1988).
[v] 42 Cal.App.4Th 718 (1996).
[vi] Ben Doherty, Melissa Davey & Daniel Hurst, Surrogate baby left in India by Australian couple was not trafficked, investigation finds The Guardian (2014), https://www.theguardian.com/australia-news/2014/oct/09/surrogate-baby-left-in-india-by-australian-couple-was-not-trafficked-investigation-finds (last visited Jun 27, 2017).
[vii] For the report and suggestions see, 228th Law Commission of India Report, NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY, 25-27 (2009) available at
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