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Constructing A Legal Framework on Surrogacy in India
Sonali Kusum
Constructing A Legal Framework on Surrogacy in India - Bangalore NLSIU, Bangalore 2019 - 592p
TABLE OF CONTENTS
Certificate;
Declaration;
Acknowledgment;
List of Acronyms and Abbreviations;
List of Cases;
List of Statues/ Laws;
List of Tables, Flow Chart , Diagram & Pie Charts.
INDEX OF CHAPTERS
Title chapter – Pg. No.
Chapter 1 – Introduction & Research Methodology, Literature Review – 1-27pg.
1.I.Introduction – Surrogacy 1pg.
1.II.Historical Background & Evolution of Surrogacy in India & Around the World-5pg.
1.III. Statement of the Problem- 9pg.
1.IV. Significance & Rationale of Study- 10pg.
1.V. Hypothesis – 11 pg.
1.VI. Research Objectives – 11pg.
1.VII. Research Questions or Issues – 12 pg.
1. VIII. Research Design – 13pg.
1.IX. Research Method- 13pg.
1.X.Research Methodology – 14 pg.
1.XI. i.Sample or Research Participant Identification – 14pg.
1.XI. ii. Sampling – 14 pg.
1.XI.iii.Sample size- 14 pg.
1.XI.iv. Universe or locale of Study – 15 pg.
1.X. Research Tools for Data Collection – 15 pg.
1.X. i.Interview schedules with Surrogate mothers – 15 pg.
1.X. ii.RTI with concerned Government Ministry , Commission, Offices- 15 pg.
1.X. iii.Other Data Collection Techniques & Methods – 15 pg.
1.X. iii.a. Observation Method- 1.X. iii.b. Contact Method – 15 pg.
1.XI. Data Processing – 16pg.
1.XII. Data Analysis- 16pg.
1.XII.i.Qualitative data analysis- 16 pg.
1.XII.ii. Quantitative Data Analysis- 16 pg.
1.XIII. Data Sources – Primary & Secondary Data Sources- 16 pg.
1.XIV. References & Citation- 17pg.
1.XV. Ethics Compliance in Research- 17pg.
1.XVI. Limitations of the research – 17pg.
1.XVII. Chapterization – 18pg.
1.XVIII. Literature Review on Surrogacy – 19-27 pg.
Chapter 2 –Historical Background, Origin of Surrogacy in India - 28-40pg.
& Around the world
2.I. Surrogacy in Ancient Human Civilizations – 29pg.
2.I.a. Surrogacy in Mediterranean civilization- 29pg.
2.I.b.Surrogacy in Mesopotamia Civilization- 30 pg.
2.I.c. Surrogacy in Roman Civilization- 30pg
2.I.d. Surrogacy in Egyptian Civilization- 30pg.
2.I.e. Surrogacy in Greek Civilization- 30pg.
2.I.f. Surrogacy in Sumerian Civilization- 30pg.
2.II. Surrogacy in Ancient India – 31 pg.
2.III. Advent of Modern Assisted Reproductive Technologies (ART) &Surrogacy around the
World & Ancient India- 32pg.
2. IV. Contemporary Landmark Medical Developments on Modern Gestational & Commercial Surrogacy Around the World & in India-33pg
2.V. Evolution of Legislative & Regulatory Developments on Surrogacy Around the World-34pg
2.VI. Landmark Medical Developments on Gestational & Commercial Surrogacy in India-36pg.
2.VII. Evolution of Legislative & Regulatory Developments on Surrogacy in India-37pg.
2.VIII.Concluding Remarks- 39-40pg
Chapter 3 - Introduction to Surrogacy - Conceptualization, Meaning, 41-118pg
Forms, Process.
3.I. Infertility & Need for Assisted Reproductive Technology ( ART) as Medical
Intervention- 43pg
3.I.i Implications of Infertility in Indian social context & Need for ART, Surrogacy in India-44pg
3.II. Definition & Meaning of Surrogacy - 45pg
3.II.i. Definition of Surrogacy under Indian Legal Jurisdiction & Under Comparative
International Legal Jurisdiction - Enc. Table – Table 1. - 45pg.
3.II.iii. Different understanding on defining elements of surrogacy - 47pg
3.II.iii. Judicial interpretation of Surrogacy by Indian & Foreign Courts- 47pg.
3.II.iv. Legal Understanding on Surrogacy in India as Medico-legal Arrangement- 48pg
3.III. Salient Features of Surrogacy- 49pg
3.IV .Medical & Legal Implications Flowing From Surrogacy - 50pg
3.V. Process of Surrogacy - Stakeholders in Surrogacy Arrangement - Flow Chart
Enumeration – Stakeholders in Surrogacy- 50-51-pg
3.VI. Forms & Types of Surrogacy - 52pg
3.VI.A. Traditional Forms of Surrogacy – 52pg
3.VI.A. i. Surrogacy based on Monetary Payment – a. Altruistic Surrogacy b. Commercial
Surrogacy c. Compensated Surrogacy- 53pg
3.VI.A.ii. Surrogacy based on Donation of Gametes or Nature of Insemination & Implantation – a.Traditional or Straight or Host & b.Full or Partial or Gestational Surrogacy -57pg
3.VI. B. Contemporary forms of surrogacy –
3. VI.B.i.a International or Transnational or Overseas Surrogacy- 59pg.
3.VI.B.i.b. Social Surrogacy- 61pg.
3.VI.B.i. c. Single Parent surrogacy - 62pg.
3.VI.B.i. d. Same Sex or LGBT Surrogacy- 63pg.
3.VII. Significance & Purposiveness of Surrogacy in Present Context - 65pg.
3.VIII. Reasons for Commissioning Surrogacy - 68pg.
3.IX. Advantages & Disadvantages of Surrogacy- 72.pg
3.IX. A. Advantages of Surrogacy - 72pg.
3.IX. B. Disadvantages of Surrogacy- 76pg.
3.X.Evolution of Surrogacy from traditional to scientific surrogacy- 86pg
3.XI. Medical Process of Surrogacy – From Traditional to Modern Day Surrogacy-
3.XI.Image – Diagram 1 Medical Process of In Vitro Fertilization & Embryo Transfer-88pg.
3.XII. Nature of Surrogacy & Inherent Risks - 90pg.
3.XIII.A.Legal Procedural Compliance in Commissioning (Commercial ) Surrogacy under
ART Bill 2010, 2014 - 91pg.
3.XIII.B.Legal procedural compliance in order to commission altruistic surrogacy under
proposed Surrogacy Bill 2016 – 105pg
3.XIV. Thematic Issues: - 108pg
3.XIV.a.Infertility as Medical Diseases Necessitating Curative Treatment or Medical
Intervention - 108pg
3.XIV.b.Surrogacy as Medical Treatment for Infertility either Curative treatment or Suppressive Treatment or Circumventive treatment – 109pg
3.XIV.c. Surrogacy as Social Arrangement- 112pg.
3.X.V.Concluding Notes- 113pg.
Enc.- Table 1 - Definition of Surrogacy under Indian Legal Instruments & Under Foreign
Legislations – 114- 118pg.
Chapter 4-Surrogate Mother as Stakeholder in Surrogacy Arrangement - 119-201pg.
& Legal Safeguards –
4.I.Definition of Surrogate mother under India Statutes, Foreign Statutes & Judicial
Interpretation- 122pg
4.II.Nature & Forms of surrogate mother- 123 pg.
4.II. a.Commercial, Gestational, Anonymous Surrogate mother under the earlier Assisted
Reproductive Technology (ART) Bill 2010, 2014 - 123pg
4.II.b. Altruistic, Close Family Relative Surrogate mother under Surrogacy Bill 2016-124pg
4.III.Eligibility conditions for surrogate mother- 124 pg
4.III.a. Eligibility conditions for surrogate mother under ART Bill 2010, 2014- 124 pg.
4.III. b.Eligibility conditions for surrogate mother under Surrogacy Bill 2016 - 124pg.
4.IV. Procedural compliances to be followed by surrogate mother to enter into surrogacy
arrangement under ART Bill 2010, 2014 & Surrogacy Bill 2016- 128pg.
4.IV.a.Procedural compliances for surrogate mother to enter into surrogacy arrangement
under ART Bill 2010, 2014 –128pg.
4.IV.b.Procedural compliances for surrogate mother to enter into surrogacy arrangement
under Surrogacy Bill 2016 -128pg.
4.V. Process of Surrogate motherhood & Its Implications on the surrogate mother- 129pg.
4.VI. Profile of Surrogate Mother – Socio economic Background-Interview Schedule
inferences using primary & secondary Data – Enumeration with Pie Charts- 131pg.
4.VII. Thematic Issue – 139pg.
4.VII.i.Determination of legal mother & contesting claim of motherhood in surrogate
pregnancy involving three competing women after fragmentation of motherhood under ART
Bill 2010, 2014, Surrogacy Bill 2016 –139pg.
4.VII.ii. Legal status of surrogate mother under ART Bill 2010, 2014, Surrogacy Bill 2016-139pg.
4.VIII. Critical Assessment of legal rights & safeguards for surrogate mother under ART bill
2010, 2014 & Surrogacy Bill 2016- 149pg
4.IX.Thematic Issues – 149pg.
4.IX.a.Are the existing legal safeguards provided under ART Bill2010, 2014, Surrogacy Bill
2016 adequate to protect surrogate mother’s interest?-149pg.
4.IX.b.Are the existing legal provisions in the Bill under ART Bill, Surrogacy Bill
exploitative [socio economic reproductive, health] of surrogate mother? Are the existing legal
provisions under ART Bill, Surrogacy Bill protecting interest or provide safeguard for
surrogate mother to check exploitation? 149pg
4.IX.c.Enumeration of Rights under ART Bill 2010 , 2014 & Surrogacy Bill 2016 & Critical
analysis with case studies and comparative foreign laws - 149pg
4.IX.c. i.Right of surrogate mother to enter into surrogacy agreement- 149pg
4.IX.c. ii.Right of surrogate mother to monetary compensation- 156pg
4.IX.c. iii. Right of Surrogate mother to informed consent- 164pg
4.IX.c. iv.Right of Surrogate mother to counselling- 169pg
4.IX.c.v. Right of surrogate mother to Insurance- 171pg.
4.IX.c.vi.Right of surrogate mother to reproductive health conditions during surrogate
pregnancy- 174pg.
4.IX.c.vii.Right of surrogate mother to seek abortion- 180pg.
4.IX.c. viii. Right of Surrogate mother to have Record keeping on health surrogate mother
health- 181pg
4.IX.c. ix. Right of surrogate mother to be free from Offence of Exploitation of surrogate
mother.- 182pg.
4.X. Suggested Safeguards for surrogate mother- Need for Revision of legal rights under
ART, Surrogacy Bill – Enumeration of rights not mentioned in either the ART bill 2010,
2014 or Surrogacy Bill 2016 – 185pg
4.X.a.Right to psychological screening and mental health counselling of surrogate mother –
(prior to and during pregnancy )- 185pg.
4.X.b.Right of surrogate mother to post delivery care- physiological and psychological-186pg.
4.X.c.Right of Surrogate mother to reproductive freedom, decision making-189pg.
4.X.d.Right of surrogate mother to be free form legal action or immunity from suits-191pg.
4.X.e.Right of surrogate mother’s own child crèche, child care support & insurance or social
security for surrogate mother’s own child- 192pg
4.X.f.Right of surrogate mother to Accommodation or Lodging stay arrangement (during
Surrogate Pregnancy)- 194pg.
4.X.g.Right of surrogate mother to maternity leave or compensation for lost wage or work
days, hours” for the duration of surrogate pregnancy- 197pg.
4XI. Judicial interpretation on Surrogate mother legal recognition legal safeguards by Indian
judiciary – Landmark cases – 199pg.
4.XI.a.Baby Manaji Yamanda. Vs. Union of India (2008) 14 SCC 518. – 199pg
4.XI.b.Jan Balaz v. Anand Municipality and Ors. AIR2010Guj21 - 199pg.
4.XII. Concluding Notes - 200-201pg
Chapter 5- Children Born of Surrogacy as Stakeholder - 202-270pg
In Surrogacy Arrangement & Legal Safeguards arrangement & legal safeguards –
5.I.Definition of Surrogate child under India, Foreign Statutes - 204pg
5.II Description & categorization of Surrogate child- 205pg.
5.II.a. Description of Surrogate child born under domestic altruistic surrogacy under
Surrogacy Bill 2016 – 205pg
5.II.b..Description of Surrogate child born under commercial overseas surrogacy under ART
Bill 2010, 2014– 205pg
5.III.Judicial interpretation on Surrogate child on legal status, legal recognition legal
safeguards by Indian judiciary – Landmark cases - 206pg.
5.III.a Landmark cases - Baby Manaji Yamanda. Vs. Union of India – 206pg
5.III.b. Jan Balaz v. Anand Municipality and Ors.- 207pg.
5.IV Plight of child born through surrogacy and need for legal safeguard, protection- 209pg.
5.IV a. Health (physical, psychological) of Surrogate Child & Impact of IVF surrogacy
process on health of child – 210pg.
5.V Testimonial excerpts from the first ever IVF baby named Kanupriya alias Durga, born in
India in Kolkata 1978 – 215pg.
5.V a. Testimonial excerpts from the Surrogate babies around the world on understanding
surrogacy, physical and psychological plight- 215pg.
5.VI. Legal status of child born of surrogacy under ART Bill 2010, 2014, Surrogacy Bill
2016–Presumption of legitimacy birth & Legitimate Status for surrogate child as normal
biological child – 216pg.
5.VII.A. Critical Assessment of legal rights & safeguards for surrogate child ( born under
domestic surrogacy) under ART bill 2010, 2014 & Surrogacy Bill 2016 – 221pg
5.VII.A. i.Right to parentage of surrogate child under ART Bill 2010, 2014- 221pg
5.VII.A. ii.Right of surrogate child to certainty, predictability of custody & parentage,
recording of intent of couples under surrogacy agreement – 222pg.
5.VII.A. iii.Right of surrogate child to be free from rejection and abandonment of surrogate
child post birth by intending couple – 226pg.
5.VII.A. iv.Right to social security, Insurance for surrogate child – 227pg.
5.VII.A. v.Right of Surrogate child to information on gamete donors, surrogate– 228pg.
5.VII.A. vi.Right of surrogate child to birth certificate (Registration of names of Intending
couple) – 230pg.
5.VII.A. vii.Right of surrogate child to inheritance, succession, testamentary rights – 232pg.
5.VII.B. Critical Assessment of legal rights & safeguards for surrogate child ( born under
foreign surrogacy) under ART bill 2010, 2014 & Surrogacy Bill 2016 – Enumeration of
Rights under ART Bill 2010, 2014 & Surrogacy Bill 2016 brief analysis with case studies and
comparative foreign laws- 234pg.
5.VII.B.i.Right to appointment of local guardian ( immediate custody)- 235pg.
5.VII.B. ii.Surrogate child freed for adoption – gross violation of right to life, development of
surrogate child – 237pg.
5.VII.B. iii.Right to legal recognition of birth certificate ( issued overseas) to surrogate child
in country of intending couple ( foreign country) – 239pg
5.VII.B. iv.Right to issue of Travel documents, Passport– 243pg.
5.VII.B.v.Right to citizenship for surrogate child – 244pg.
5.VIII.I.Suggested Safeguards for surrogate child–Enumeration of rights Not mentioned in
either ART Bill 2010, 2014 or Surrogacy Bill 2016 taking after comparative foreign law–
5.VIII.i.Right to breastfeeding for surrogate child – 247pg.
5.VIII. ii. Screening of intending couples before surrogacy– 249pg.
5.VIII. iii.Right of surrogate child to be free from criminal offences as Trafficking,
Abduction other crimes – 252pg.
.5.VIII. iv.No Punishment against Sex Selective or Family Balancing Surrogacy elimination
of girl surrogate child – 254pg.
5.VIII. v.Right of surrogate child to birth siblings- 257pg.
5.VIII.vi.Unaddressed Plight of surrogate child born under these given conditions switching
up or mixing of gametes, overseas commercial surrogacy in contravention of proposed law-259pg.
5.IX. Suggested policy consideration paramount consideration to child interest in surrogacy
arrangement guiding all surrogacy ( domestic foreign ) cases- 262pg.
5.IX.a. Possible approach of incorporating UNCRC mandate of paramount consideration to
child interest in surrogacy arrangement – Instances of UK Family court precedents upholding
best interest of child as guiding directive for determination, adjudication of issues concerning
surrogate child in surrogacy arrangement over riding any other consideration including
breach of statutory law- 262pg
5.IX.b. Amendment in civil law birth registration, law of presumption ( discussed above)
specifically providing for child born of surrogacy – 262pg
5.X.Concluding Remarks – 269-270pg.
Chapter 6-Commissioning or Intending couple as Stakeholder in Surrogacy- 271-402pg.
Arrangement & Legal safeguards -
6.I.Definition of Commissioning or Intending couple under the ART Bill 2010, 2014
Surrogacy Bill 2016 & Foreign Statutes- 275pg
6.II.a.Eligibility criteria of IP & Categorization of IP under ART Bill 2010– 277pg
6.II..a.1. Categorization of IP & nature of Surrogacy arrangement for IP under ART Bill 2010
- IP as Indian national, foreigner commissioning Commercial Domestic Overseas or Foreign
surrogacy- 278pg
6.II.a.2.Preconditions to be satisfied by IP commissioning commercial domestic overseas
surrogacy under ART Bill 2010- 278pg.
6.II.a.3.Additional Preconditions to be satisfied by foreigner IP commissioning commercial
overseas surrogacy under ART Bill 2010- 279pg.
6.II.b.Eligibility criteria of IP & Categorization of IP under ART Bill 2014– 280pg
6.II.b.1.Categorization of IP & nature of Surrogacy arrangement for IP under ART Bill 2014
-IP as Indian national, foreigner commissioning Commercial Domestic Overseas surrogacy
under ART Bill 2014- 280pg.
6.II.b.2. Preconditions to be satisfied by IP (Indian, Foreign Residents) commissioning
Commercial domestic, Overseas surrogacy under ART Bill 2014- 282pg.
6.II.b.3.Additional Preconditions to be satisfied by foreign resident IP commissioning
commercial overseas surrogacy under ART Bill 2014 – 282pg.
6.III.c.Eligibility criteria of IP & Categorization of IP under Surrogacy Bill 2016 – 283pg.
IP as Indian national commissioning Domestic altruistic surrogacy-
6.II.c.1. Preconditions to be satisfied by IP commissioning Domestic altruistic surrogacy
under Surrogacy Bill 2016- 283pg
6.IV.Judicial interpretation on Intending or Commissioning Couples on legal status, legal
safeguards by Indian Courts – Landmark cases - 285pg.
6.IV.a Baby Manaji Yamanda. Vs. Union of India - 285pg
6.IV.b. Jan Balaz v. Anand Municipality and Ors.- 286pg.
6.V.Foreign Judicial interpretation on legal status and legal safeguard for Intending couple
under Indian Foreign cases –landmark foreign cases - Johnson vs Calvert, Re Baby M Cases-
289pg
6.VI.Thematic Issue– Is there right of a person to Commissioning Surrogacy as Human right
under international human right convention & constitutional right under Right to life,
personal liberty under Indian constitution- 290pg.
6.VI. a Right of a person ( infertile, Medically Needy) to Commissioning Surrogacy as facet
of right to health ( reproductive, right to access medical treatment, technology as
Constitutional right under Article 21 of Indian constitution - 291pg
6.VI.b.Right of a person ( infertile , Medically Needy) to Commissioning Surrogacy as facet
of right to procreation, family formation, reproductive autonomy or freedom, right to
privacy, as conventional Human right& Constitutional right- 293pg.
6.VI.c.Right of a person ( Infertile , Medically Needy) to Commissioning Surrogacy as facet
of right to procreation, family formation, reproductive autonomy or freedom, right to
privacy, as facet of right to life under Article 21 Indian constitution- 296pg.
6.VI.d. International or Foreign cases on access to medical technology as facet of right to
privacy, family formation – 297pg.
6. VII. Enumeration of Rights, Duties of IP under ART Bill 2010 , 2014 & Surrogacy Bill
2016 & Critical analysis with case studies and comparative foreign laws- 299pg.
6. VII. a.Right to establishment of Parentage in intending couples - 299pg.
6. VII. b. Right of IP to registration of names in birth certificate of surrogate child- 310pg
6.VII.c.Right of Intending couples to enter into surrogacy agreement- 312pg.
6.VII.d. Right of IP to certainty, predictability of surrogacy agreement – 317pg.
6.VII.e. Right of intending couples to counselling & informed consent- 320pg.
6.VII.f.Right of IP to seek assistance from ART Bank – ( Procuring Surrogate mother, Egg
donor)- 324pg.
6.VII.g.Right of IP to Privacy & confidentiality of information- 325pg.
6.VII.h.Right of IP to obtain Discharge Certificate from the infertility clinic- 326pg.
6.VII.i. Right of IP to obtain receive declaration form surrogate mother- 327pg.
6VII.j. Criminalization of reproductive rights, choices &Penalizingsanctions against IP on
family making choices- 328pg.
6.VIII.Unaddressed legal status of Indian Intending couples commissioning overseas or
foreign commercial surrogacy – 331pg.
6.IX.Legal Issues Intending couples‘s right to procreation under Surrogacy Bill2016- 331pg.
6.IX.a.Time Bar under Surrogacy Bill 2016 -Problematic for IP – Abridgement,
Contravention of reproductive rights , right to privacy of IP - 331pg.
6. IX.b.IP’s Prior Childlessness – One child norm Arbitrary, Discriminatory against infertile
IP – 335pg.
6. IX.c. IP to obtain Certificate of essentiality & other certificates - 336pg.
6.IX.d. Close Family Relative Surrogate Mothers under Surrogacy Bill 2016 Problematic for
IP – Abridgement, Contravention of reproductive rights of IP- 337pg.
6.IX.e. Disclosure of female infertility of IP ( Intending Mother) among family threat to
domestic violence, marriage annulment against Intending Mother- 342pg.
6.X..Statutory Duty on IP under ART Bill 2010, 2014 & Surrogacy Bill 2016- 344pg
6.X.i. Duty on IP to provide monetary compensation to surrogate mother - 344pg
6.X.ii.Duty of IP to not reject and abandon surrogate child post birth- 348pg.
6.X.iii. Duty on IP against Sex Selective or Family Balancing Surrogacy elimination of girl
surrogate child- 349pg.
6.X.iv. Duty on IP against using two surrogate mothers simultaneously ( Twiblings)- 351pg
6.X.v. Duty on IP against movement of surrogate mothers across borders- 352pg.
6.XI.Suggested Safeguards for IP - Need for Revision of legal rights under ART, Surrogacy
Bill – Enumeration of rights not mentioned in either the ART bill 2010, 2014 or Surrogacy
Bill 2016 taking after foreign comparative law – 353pg.
6.XI. a.Right of couples to be consulted, consent, decision making on handling, usage of their
own embryo, gametes- 354pg.
6.XI. b.Right of IP couples to storage preserving embryo, gametes & right to recovery,
retrieval of frozen embryo, gametes in course of surrogacy, ART, medical procedure- 356pg
6.XI. c. Right of IP to be protected from switching up or mixing of gametes, embryos during
surrogate pregnancy- 356pg
6.XI.d. Right of IP Intending Couple to free from fraud, cheating, deception economic
offences- 358pg.
6.XI.e.Right of IP to secure custody of surrogate child ( time period of handing over of
custody)- 359pg.
6.XI.f. Right of IP (Intending Mother) to Child care leave for surrogacy - 361pg.
6.XI.g Right to psychological screening and mental health counselling of surrogate
mother(Prior to and During pregnancy)- 362pg
6.XI.h. Screening of intending couples before surrogacy- 363pg.
6.XII. Thematic issues – 366pg
6.XII.a.Legal Status & Legal permit, legal safeguard for IP being “Foreigner, Foreign
resident” as NRI, OCI, PIO to commission surrogacy in India- 366pg.
6.XII.b. Legal Status & Legal permit, legal safeguard for IP being “Same Sex ” ( Indian
national, Foreigner, Foreign Resident) IP to commission surrogacy in India – 374pg.
6.XII.c. Legal Status & Legal permit, legal safeguard for IP being “Transgender” ( Indian
national, Foreigner, Foreign Resident) community IP to commission surrogacy in India-379pg
6.XII.d. Legal Status & Legal permit, legal safeguard for IP being “Single Unmarried” (
Indian national, Foreigner, Foreign Resident) IP to commission surrogacy in India &
comparative foreign law perspective- 380pg
6.XII.e. Legal Status & Legal permit, preconditions for “Single Widow Divorcee or Ever
married women or man” ( Indian national, Foreigner, Foreign resident ) to commission
surrogacy in India- 384pg.
6.XII.f. Legal Status & Legal permit, preconditions for “Live in Partners” ( Indian national,
Foreigner, Foreign resident ) to commission surrogacy in India – 386pg.
6.XIII. Contemporary Recent policy instruments regulations on Legal permit for “Foreign
resident” as NRI, OCI, PIO & “Foreigner” to commission surrogacy in India- 388pg
6.XIII.a.Home Ministry Guidelines (Foreign Division) Foreign Nationals Intending to visit
India for Commissioning Surrogacy & Conditions to be fulfilled for Grant of VISA, of the
year 2013- 388pg.
6.XIII.b.PIL Jayashree Wad vs Union of India - 388pg.
6.XIII.c.Supreme Court Notice to centre Government of India on commercial overseas
surrogacy in India- 389pg.
6.XIII.d.The Government of India Affidavit –Proposal to ban commercial , foreign surrogacy
in India- 389pg.
6.XIII.e.The Ministry of Commerce & Industry, Department of Commerce on Import of
Gametes, Embryos - 389pg
6.XIII.f.The Home Ministry FRRO instruction to Indian mission OCIs card holders on
Surrogacy – 389pg.
6.XIII.g.Department of Health Research (DHR), Ministry of Health & family Welfare
Government of India “Commissioning of surrogacy instruction to all ART clinics, Banks,
infertility clinics offering surrogacy services– 390pg.
6.XIV. Implications & Impact of Contemporary Recent policy change on IP legal Status &
legal permit, legal safeguard for IP being “Foreign resident”& “Foreigner” to commission
surrogacy in India – 390pg.
6.XIV. a.ICMR circular challenged by Foreign intending Couples in Petition before Mumbai
HC- 391pg.
6.XIV.b.Overseas Citizenship of India (OCIs) file petition before Supreme Court of India
against the proposed ban on them commissioning surrogacy in India- 392pg.
6.XIV.c. Recovery of Embryo, Gametes of Foreign couples from India clinics – 392pg.
6.XIV.d. Right of IP to be protected from switching up or mixing of gametes, embryos during
surrogate pregnancy- 393pg.
6.XV.Suggested safeguards of IP Foreigner, Foreign Resident for better protection of legal
rights – 394pg.
6.X.V.a.Permissibility for Foreign Resident, Foreigner IP to commission surrogacy in India
with Embassy, Documentation, Protocols - 394pg.
6.XV.b.Right of Foreign Resident, Foreigner IP to legal recognition of birth certificate issued
in country of commissioning surrogacy) mentioning names of IP in country of intending
couple ( foreign country)- 397pg
6.XV.c.Legal obligation on Foreign IP towards surrogate child- 401pg.
6.XVI.Concluding Remarks- 401-402pg
Chapter 7– Legislative, Judicial developments on surrogacy in India 403-515pg
& Proposed legal framework providing for Compensated Surrogacy & Regulatory
Foreign Surrogacy in India
7.I.Chronological legal, Judicial and policy developments on Surrogacy in India - Changing
legal position from unregulated liberal, permissive commercial, overseas surrogacy regime to
proposed domestic, altruistic surrogacy regime – 406pg
7.I.i.The National Health Policy ( NHP) 2002- 406pg
7.I.ii.Formulation of National Guidelines for Accreditation, Supervision, and Regulation of
ART Clinics in India or the ICMR Guidelines 2005- 407pg.
7.I.iii.The ICMR Ethical Guidelines for Biomedical Research 2007 under Specific Principles
for Assisted Reproductive Technologies - 410pg
7.I.iv. Baby Yamanda Manji Vs. Union of India 2008- 411pg.
7.I.v.The Assisted Reproductive Technology (Regulation) Bill 2008- 412pg.
7.I.vi. Law Commission Report No. 228 titled as Need For Legislation to Regulate Assisted
Reproductive Technology Clinic as well as Rights & Obligations of Parties to a Surrogacy ,
year 2009 – 413pg
7.I.vii. Jan Bajaj vs Anand Muncipality 2009- 414pg
7.I.viii. Union of India & Anr v Jan Balaz and others,2009 – 415pg
7.I.ix. The Assisted Reproductive Technology (Regulation) Bill 2010- 415pg.
7.I.x.The Home Ministry Guidelines 2012- 418pg.
7.I.xi. National Registry of Assisted Reproductive Technology (ART) Clinics and Banks in
India, (NRACBI) 2013- 420pg.
7.I.xii. Indian Society for Third-Party Assisted Reproduction (INSTAR) 2013 – 420pg.
7.I.xiii. The Assisted Reproductive Technologies (ART) (Regulations) Bill 2014- 421pg.
7.I.xiv. Ministry of Home Affairs (MHA) Memorandum Foreign nationals ( single parent)
Intending to visit India for commissioning surrogacy 2014 – 426pg.
7.I.xv. Jayashree Wad vs Union of India 2015- 427pg.
7.I.xvi. Supreme Court Notice to centre Government of India on commercial and overseas
surrogacy in India 2015- 427pg.
7.I.xvii.The Department of Health Research, Ministry of Health and Family Welfare, Govt. of
India circular to all enrolled ART Clinics ( with ICMR) in India 2015yr.- 427pg.
7.I.xviii.The Government of India Affidavit –Proposal to ban commercial , foreign surrogacy
in India 2015yr- 427pg.
7.I.xix. The Ministry of Commerce & Industry, Department of Commerce Circular on
Prohibition on Import of Gametes, Embryos 2015- 428pg.
7.I.xx. The Home Ministry FRRO directives to Indian mission OCIs card holders on
Surrogacy 2015 - 428pg.
7.I.xxi.Ministry of Health & family Welfare Government of India “Commissioning of
surrogacy instruction to all ART clinics, Banks, infertility clinics offering surrogacy services
2015- 428pg.
7.I.xxii.Surrogacy ( Regulations) Bill 2017 - Salient features & Brief Critique- 429pg.
7.II.Omissions & Oversights under Surrogacy Bill - Lack of Regulatory Safeguards under
Surrogacy Bill – 470pg
7.II.A.--Nil Altruistic Surrogacy Agreement under Surrogacy Bill– 470pg
7.II.B.--No provision on ART procedures to be conducted on Surrogate mother - 473pg.
7.II.C.--No provision on screening of surrogate mother, intending couples before
commissioning surrogacy- 473pg
7.II.D.--No provision on psychological or mental health screening of Surrogate Mother,
Intending Couples-- 473pg.
7.II.E.--No provision on stay arrangement for Surrogate mother ( during Surrogate
Pregnancy)– 474pg.
7.II.F.--No provision on Record keeping on surrogacy procedures, Consent & NO record
keeping on Surrogate mother, intending couples, child born of surrogacy- 474pg.
7.II.G.--Omissions to prohibit penalize misuse of ART, surrogacy for illicit activities-475pg.
7.II.H.—No provision on Indian married couples commissioning commercial, overseas
surrogacy &No Provision on legal recognition of child born of such surrogacy- 477pg.
7.II.I.--No provision on child born of surrogacy arrangement following switching up or
mixing of gametes- 477pg.
7.II.J.-- No provision on written undertaking from Intending couples for not involving child
born of surrogacy in pornography or paedophilia, illicit activities- 478pg.
7.II.K.--No provision on registration of surrogate mother on behalf of Intending Couples at
the ART Centre/ Clinic- 478pg.
7.II.L.--No restraint on travel for surrogate mother outside India– 479pg.
7.II.M.--No provision imposing legal obligation on intending couple to secure insurance
surrogate child born with abnormality- 479pg.
7.II.a.Omissions & Oversights under Surrogacy Bill - Lack of right based perspective for
Stakeholders – surrogate mother , child born of surrogacy, Intending couples in Surrogacy
Arrangement- 479pg.
7.III.Thematic Issues – Contesting legal issues in Surrogacy Bill 2017- 482pg.
7.III.a.Is Surrogacy Bill 2017 Inconsistent with existing Indian Statutes- 482pg.
7.III.b.Inconsistency of Surrogacy Bill with MedicalTermination of Pregnancy Act1971-
482pg
7.III.c.Inconsistency of Surrogacy Bill with Indian Evidence Act 1872 , The Registration of
Births and Deaths Act, 1979 & Issues of Establishing Parentage, Birth Registration for child
born of surrogacy – 483pg.
7.III.d.Inconsistency of Surrogacy Bill with Indian Penal Code (IPC) Act – on exploitation
trafficking of surrogate mother- 484pg.
7.IV.a.Is Surrogacy Bill 2017 Inconsistent with Indian constitutional rights and directives &
International Human Right Conventions- 485pg.
7.IV.b.Inconsistency of surrogacy Bill with UN child Right Convention (UNCRC)and Indian
Constitutional Directives -on rights of child born of surrogacy- 485pg.
7.IV.c.Inconsistency of surrogacy Bill with UN CEDAW, ICPD and Indian Constitutional
Directives– on reproductive health rights of surrogate mothers- 489pg.
7.IV.d.Inconsistency of surrogacy Bill with ICPD international convention on population
Development & Indian Constitutional directives – on right of intending couples to
reproductive rights, right to family formation, right to privacy – 498pg.
7.V.Indian Judicial Developments on Surrogacy through Case law decisions – Brief appraisal
of judicial pronouncement by Supreme court and High courts on surrogacy in India- 501pg.
7.V.a.Baby Manji Yamada vs. Union of India (UOI) and Another- 501pg.
7.V.b.Jan Balaz vs Union of India- 507pg.
7.V.c.Union of India & Anr. Jan Balaz & ors - 512pg.
7.V.d.PIL Jayashree Wad vs Union of India – 512pg.
7.V.e.K. Kalaiselvi vs Chennai Port Trust , P. Geetha vs The Kerela Livestock Development
Board Ltd , Rama Pandey vs Union Of India & Ors. , Dr. Hema Vijay Menon v. State of
Maharashtra- 514pg.
7.VI. Concluding Remarks – 514-515pg.
Chapter 8 - Recommendations, Suggestions & Conclusion – 516- 552pg
Proposed Legal Framework on Surrogacy in India
8.I. Recommendations, Suggestions – Proposed legal framework on Surrogacy in India -
Suggestions on regulating Surrogacy in India – 522pg.
8.I.A.Proposed Compensated Regulatory Surrogacy in India - 523pg.
8.I.A.i.Meaning & conceptualization of Compensated Regulatory Surrogacy in India-523pg
8.I.A.ii.Categorization & Enumeration of reasonable or permissible expenses and non
reasonable or non permissible expenses – 523pg.
8.I.A.iii.Determination of quantum of monetary compensation with upper limit and lower
limit by statutory authority – 524pg.
8.I.A.iv.Assessment, Approval of monetary compensation by statutory authority- 524pg.
8.I.A.v.Just equitable Distribution of benefits & burden of monetary compensation on
surrogate mother- 525pg.
8.I.A.vi..Mode, Manner of payment & Periodicity & Stages of payment- 525pg.
8.I.A.vii. Documentation of monetary payment under surrogacy agreement- 525pg.
8.I.A. a.Significance of Compensated Regulatory Surrogacy in India – 526pg.
8.I.A.b. Comparative foreign laws, cases on Compensated Surrogacy- 527pg.
8.I.A.c.Comparative foreign cases on Compensated Surrogacy- 529pg.
8.I.B.Proposed Regulated Foreign Surrogacy in India - 530pg.
8. I.B.i.The possible working mechanism and procedural compliances for overseas or foreign
surrogacy may be described as follows- 531pg.
8.I.B.ii.Obtaining prior written permit from embassy office of foreign intending couple
531pg.
8. I.B.iii.Written legal undertaking to legal recognition, rights to child born of overseas
surrogacy from embassy office of foreign intending couples– 531pg.
8. I.B.iv. Regulation by Diplomatic, Consular office – 531pg.
8. I.B.v.Division of responsibilities among the Diplomatic, Consular offices of the country of
foreign intending couples and country of commissioning surrogacy- 531pg.
8. I.B.vi.Certificate of Genetically link between either of Intending Coupes & Surrogate
Child – 532pg.
8. I.B.a.Significance of Regulated Overseas Surrogacy at the international level- Preventive
Approach- 532pg.
8. I.C. Proposed Legal safeguards for conduct of Regulated Overseas or Foreign Surrogacy in
India- 534pg.
8.I.D. Proposed legal rights, safeguards, obligations of stakeholders including the Intending
couples, surrogate mother, child born of surrogacy– 536pg.
8.I.D.a.Proposed legal rights of surrogate mother- 536pg.
8.I.D.a. i.Right of surrogate mother to enter into surrogacy agreement – 536pg
8.I.D.a. ii.Right of surrogate mother to legal representation, counselling of parties to the
surrogacy agreement. Legal representation under surrogacy agreement– .536pg
8.I.D.a.iii.Right of surrogate mother to monetary compensation – Reimbursable or
permissible, reasonable expensesmay be expenses arising directly out or related to surrogate
pregnancy– 536pg.
8.I.D.a,iv.Right of Surrogate mother to written Informed consent and Comprehensive
counselling – 536pg.
8.I.D.a.v.Right of surrogate mother to reproductive health conditions during surrogate
pregnancy - Multiple embryo transfer & foetal reduction permitted with counselling
information to surrogate mother, Assessment by competent authority of no risks to surrogate
mother’s health&Court authorization of surrogacy agreement before embryo transfer-536pg.
8.I.D.a.vi. Right to psychological screening and mental health counselling of surrogate
mother – (prior to and during pregnancy ) – 536pg.
8.I.D.a.vii.Right of surrogate mother to post delivery care- Physiological and Psychological –
– 537pg
8.I.D.a.viii.Right of Surrogate mother to reproductive freedom, decision making– 537pg
8.I.D.a.ix.Right of Surrogate mother to have Record keeping on health surrogate mother
health – 537pg.
8.i.D.a.ix.Right of surrogate mother to be free form legal action or immunity from suits16
537pg
8.I.D.a,x. Right of surrogate mother’s own child crèche, child care support & insurance or
social security for surrogate mother’s own child– 537pg.
8.I.D.a.xi.Right of surrogate mother to Accommodation or Lodging stay arrangement ( during
Surrogate Pregnancy) – 537pg
8.I.D.a.xii.Right of surrogate mother to maternity leave or compensation for lost wage or
work days, hours for the duration of surrogate pregnancy– 537pg.
8.I.D.a.xiii.Right of surrogate mother to be free from Offences or Exploitation of surrogate
mother – 537pg.
8.I.D.a.xiv.Amendment in civil law birth registration law under Birth Registration Act , law
of presumption under Indian Evidence Act – 537pg.
The detailed description with respect to rights, safeguards, obligations of stakeholders as
surrogate mother is discussed in chapter 4.– 537pg.
8.I.D.b. Proposed legal rights, safeguards for children born of Surrogacy are enumerated as
following: - 537pg.
8.I.D.b.i. Right to breastfeeding for surrogate child – 537pg.
8.I.D.b. ii.Screening of intending couples before surrogacy– 537pg.
8.I.D.b. iii.Right of surrogate child to be free from criminal offences as Trafficking,
Abduction other crimes –– 537pg.
7.I.D.b.iv.Imposing Punishment against Sex Selective or Family Balancing Surrogacy
elimination of girl surrogate child – 537pg.
7.I.D.b.v.Right of surrogate child to birth siblings– 537pg.
8.I.D.b.vi. Right to appointment of local guardian (immediate custody) – 537pg.
8.I.D.b.vii.Additional rights for children born of surrogacy to foreign Intending Couples–537
8.I.D.b. viii.Right to legal recognition of birth certificate (issued overseas) to surrogate child
in country of intending couple (foreign country) – 537pg.
8.I.D.b.ix. Right to issue of Travel documents, Passport – 537pg.
8.I.D.b. x.Right to citizenship for surrogate child – 537pg.
8.I.D.b.Incorporating United Nations Child Right Convention UNCRC 1989 mandate of
paramount consideration to child interest in surrogacy arrangement– 537pg.
8.I.D.b.x.Amendment in civil law birth registration law under Birth Registration Act, law of
presumption under Indian Evidence Act – 538pg
The detailed description with respect to rights, safeguards, obligations of stakeholders as
children born of surrogacy is discussed in chapter 5. – . 538pg.
8.I.D.c.Proposed legal rights, safeguards for Intending couples- 538pg.
8.I.D.c.i.Right of Intending couples to establishment of Parentage in intending couples–538
8.I.D.c.ii.Right of Intending couples to registration of names in birth certificate of surrogate
child – 538pg
8.I.D.c.iii.Right of Intending couples to enter into surrogacy agreement – 538pg.
8.I.D.c.iv.Right of Intending couples to certainty, predictability of surrogacy agreement-538
8.I.D.c.v.Right of intending couples to counselling & informed consent – 538pg
8.I.D.c.vi.Right of Intending couples to seek assistance from ART Bank – ( Procuring
Surrogate mother, Egg donor)- 538pg.
8.I.D.c.vii.Right of Intending couples to Privacy & confidentiality of information - 538pg.
8.I.D.c.vii.Right of Intending couples to obtain Discharge Certificate from the infertility
clinic- 538pg.
8.I.D.c.viii.Right of Intending couples to obtain receive declaration form surrogate mother-
538pg
8.I.D.c.ix.Right of Intending couples to be free from Criminalization of reproductive rights
8.I.D.cx.choices &Penalsanctions against IP on family making choices- 538pg
8.I.D.c.x.Right of Intending couples to be consulted, consent, decision making on handling,
usage of their own embryo, gametes - 538pg
8.I.D.c.xi.Right of Intending couples to storage preserving embryo, gametes & right to
recovery, retrieval of frozen embryo, gametes in course of surrogacy, ART, medical
procedure- 538pg.
8.i.D.c.xii.Right of Intending couples to be protected from switching up or mixing of
gametes, embryos during surrogate pregnancy- 538pg.
8.I.D.c.xiii.Right of Intending couples Intending Couple to free from fraud, cheating,
deception economic offences- 538pg.
8.I.D.c.xiv.Right of Intending couples to secure custody of surrogate child – ( time period of
handing over of custody)- 538pg.
8.I.D.c.xv.Right of Intending couples (Intending Mother) to Child care leave for surrogacy-
538pg.
8.I.D.c.xvi. Right to Intending couples to psychological screening and mental health
counselling of surrogate mother - 538 pg.
8.I.D.c.xvii. Screening of intending couples before surrogacy- 539pg.
8.I.D.d.Legal Obligation on Intending couples- 539pg
8.I.D.d.i.Statutory Duty on Intending couples IP to provide monetary compensation to
surrogate mother - 539pg.
8.I.D.d.ii.Duty of Intending couples to not reject and abandon surrogate child post birth- 539pg
8.I.D.d.iii. Duty on Intending couples against Sex Selective or Family Balancing Surrogacy
elimination of girl surrogate child- 539pg.
8.I.D.d.iv. Duty on Intending couples against using two surrogate mothers simultaneously (
Twiblings)- 539pg.
8.I.D.d.v. Duty onIntending couples IP against movement of surrogate mothers across
borders 539pg.
8. I.D.e Proposed Legal Recognition Permissibility & Safeguard for Intending couples in
these status or capacity to commission surrogacy in India- 539pg
8. I.D.e Among Indian Nationals - 539pg.
i.Single Unmarried Indian national as Intending Couples to commission surrogacy in India
539pg
ii.Single Widow Divorcee or Ever married women or man Indian national as Intending
couples to commission surrogacy in India- 539pg
iii.Live in Partners Indian national as Intending couples to commission surrogacy in India-
539pg
iv.Transgender Indian national as Intending Couples to commission surrogacy in India-539
v.Same Sex IP to commission surrogacy in India- 539pg.
Among Foreign nationals or Foreigners, Foreign Residents- 539pg.
vi.Foreign nationals or Foreigners to commission surrogacy in India- 539pg.
vii.Foreign resident as NRI, OCI, PIO as Intending couples to commission surrogacy in
India-539pg.
viii.Same Sex Foreigner, Foreign Resident as Intending couples to commission surrogacy in
India- 539pg.
ix. Transgender Foreigner, Foreign Resident as Intending couples to commission surrogacy in
India- 539pg.
x.Single Unmarried Foreigner, Foreign Resident as Intending couples to commission
surrogacy in India - 539pg.
xi.Single Widow Divorcee or Ever married women or man Foreigner, Foreign Resident as
Intending couples to commission surrogacy in India- 539pg.
xii.Live in Partners Foreigner, Foreign Resident as Intending couples to commission
surrogacy in India.- 540pg.
The detailed description with respect to rights, safeguards, obligations of stakeholders as
Intending or Commissioning Couples is discussed in chapter
8.II.Need for International Convention on Surrogacy – 540pg.
8.II.a.Drafting of an international convention on Surrogacy– The Permanent Bureau of Hague
conference on private international law issues arising from international surrogacy
arrangements (ISA)- 2011- 2017 year. - 541pg.
8.II.a.i.Administrative co-operation through state designated competent authorities (Consular
or Embassy office) providing clear channels of communication, cooperation among states to
regulate International surrogacy arrangement (ISA)- 542pg.
8. II.b.Ancillary Convention on regulating International Surrogacy- Proposed Applicability
of Apostille Convention in international surrogacy arrangement at international level & at
national level in India - 544pg.
8. II.b.i. Proposed Applicability of Apostille Convention in India- 547pg.
8.III.Conclusion- 547-552pg.
Bibliography
ANNEXURES
ANNEXURE I
Annexure – I. Research Ethics & Informed Consent Form
Annexure - II. Interview Schedule for Surrogate Mother
Annexure –III. Table- Profile of Surrogate Mothers
Aneexure-IV. RTI Petitions
i..RTI Petition Karnataka State Women's Commission
ii.RTI Petition with Karnataka State Human Rights Commission
iii.RTI Petition with Karnataka Directorate Health Services
iv.RTI Petition with LIC , Head Office Mumbai
Annexure –V. Surrogacy Agreement – Proforma – Global Surrogacy Clinic Bashweshwaranagar
Bangalore.
RELATED ANNEXURE
Rajya Sabha Standing Committee Report No. 102, on Surrogacy ( Regulations) Bill 2016 –
Researcher's Thesis Findings included in the Recommendations. Pg. no. 18.
Overseas surrogacy
Supreme court Judgements on surrogacy
Surrogacy India
Surrogate mother
Constructing A Legal Framework on Surrogacy in India - Bangalore NLSIU, Bangalore 2019 - 592p
TABLE OF CONTENTS
Certificate;
Declaration;
Acknowledgment;
List of Acronyms and Abbreviations;
List of Cases;
List of Statues/ Laws;
List of Tables, Flow Chart , Diagram & Pie Charts.
INDEX OF CHAPTERS
Title chapter – Pg. No.
Chapter 1 – Introduction & Research Methodology, Literature Review – 1-27pg.
1.I.Introduction – Surrogacy 1pg.
1.II.Historical Background & Evolution of Surrogacy in India & Around the World-5pg.
1.III. Statement of the Problem- 9pg.
1.IV. Significance & Rationale of Study- 10pg.
1.V. Hypothesis – 11 pg.
1.VI. Research Objectives – 11pg.
1.VII. Research Questions or Issues – 12 pg.
1. VIII. Research Design – 13pg.
1.IX. Research Method- 13pg.
1.X.Research Methodology – 14 pg.
1.XI. i.Sample or Research Participant Identification – 14pg.
1.XI. ii. Sampling – 14 pg.
1.XI.iii.Sample size- 14 pg.
1.XI.iv. Universe or locale of Study – 15 pg.
1.X. Research Tools for Data Collection – 15 pg.
1.X. i.Interview schedules with Surrogate mothers – 15 pg.
1.X. ii.RTI with concerned Government Ministry , Commission, Offices- 15 pg.
1.X. iii.Other Data Collection Techniques & Methods – 15 pg.
1.X. iii.a. Observation Method- 1.X. iii.b. Contact Method – 15 pg.
1.XI. Data Processing – 16pg.
1.XII. Data Analysis- 16pg.
1.XII.i.Qualitative data analysis- 16 pg.
1.XII.ii. Quantitative Data Analysis- 16 pg.
1.XIII. Data Sources – Primary & Secondary Data Sources- 16 pg.
1.XIV. References & Citation- 17pg.
1.XV. Ethics Compliance in Research- 17pg.
1.XVI. Limitations of the research – 17pg.
1.XVII. Chapterization – 18pg.
1.XVIII. Literature Review on Surrogacy – 19-27 pg.
Chapter 2 –Historical Background, Origin of Surrogacy in India - 28-40pg.
& Around the world
2.I. Surrogacy in Ancient Human Civilizations – 29pg.
2.I.a. Surrogacy in Mediterranean civilization- 29pg.
2.I.b.Surrogacy in Mesopotamia Civilization- 30 pg.
2.I.c. Surrogacy in Roman Civilization- 30pg
2.I.d. Surrogacy in Egyptian Civilization- 30pg.
2.I.e. Surrogacy in Greek Civilization- 30pg.
2.I.f. Surrogacy in Sumerian Civilization- 30pg.
2.II. Surrogacy in Ancient India – 31 pg.
2.III. Advent of Modern Assisted Reproductive Technologies (ART) &Surrogacy around the
World & Ancient India- 32pg.
2. IV. Contemporary Landmark Medical Developments on Modern Gestational & Commercial Surrogacy Around the World & in India-33pg
2.V. Evolution of Legislative & Regulatory Developments on Surrogacy Around the World-34pg
2.VI. Landmark Medical Developments on Gestational & Commercial Surrogacy in India-36pg.
2.VII. Evolution of Legislative & Regulatory Developments on Surrogacy in India-37pg.
2.VIII.Concluding Remarks- 39-40pg
Chapter 3 - Introduction to Surrogacy - Conceptualization, Meaning, 41-118pg
Forms, Process.
3.I. Infertility & Need for Assisted Reproductive Technology ( ART) as Medical
Intervention- 43pg
3.I.i Implications of Infertility in Indian social context & Need for ART, Surrogacy in India-44pg
3.II. Definition & Meaning of Surrogacy - 45pg
3.II.i. Definition of Surrogacy under Indian Legal Jurisdiction & Under Comparative
International Legal Jurisdiction - Enc. Table – Table 1. - 45pg.
3.II.iii. Different understanding on defining elements of surrogacy - 47pg
3.II.iii. Judicial interpretation of Surrogacy by Indian & Foreign Courts- 47pg.
3.II.iv. Legal Understanding on Surrogacy in India as Medico-legal Arrangement- 48pg
3.III. Salient Features of Surrogacy- 49pg
3.IV .Medical & Legal Implications Flowing From Surrogacy - 50pg
3.V. Process of Surrogacy - Stakeholders in Surrogacy Arrangement - Flow Chart
Enumeration – Stakeholders in Surrogacy- 50-51-pg
3.VI. Forms & Types of Surrogacy - 52pg
3.VI.A. Traditional Forms of Surrogacy – 52pg
3.VI.A. i. Surrogacy based on Monetary Payment – a. Altruistic Surrogacy b. Commercial
Surrogacy c. Compensated Surrogacy- 53pg
3.VI.A.ii. Surrogacy based on Donation of Gametes or Nature of Insemination & Implantation – a.Traditional or Straight or Host & b.Full or Partial or Gestational Surrogacy -57pg
3.VI. B. Contemporary forms of surrogacy –
3. VI.B.i.a International or Transnational or Overseas Surrogacy- 59pg.
3.VI.B.i.b. Social Surrogacy- 61pg.
3.VI.B.i. c. Single Parent surrogacy - 62pg.
3.VI.B.i. d. Same Sex or LGBT Surrogacy- 63pg.
3.VII. Significance & Purposiveness of Surrogacy in Present Context - 65pg.
3.VIII. Reasons for Commissioning Surrogacy - 68pg.
3.IX. Advantages & Disadvantages of Surrogacy- 72.pg
3.IX. A. Advantages of Surrogacy - 72pg.
3.IX. B. Disadvantages of Surrogacy- 76pg.
3.X.Evolution of Surrogacy from traditional to scientific surrogacy- 86pg
3.XI. Medical Process of Surrogacy – From Traditional to Modern Day Surrogacy-
3.XI.Image – Diagram 1 Medical Process of In Vitro Fertilization & Embryo Transfer-88pg.
3.XII. Nature of Surrogacy & Inherent Risks - 90pg.
3.XIII.A.Legal Procedural Compliance in Commissioning (Commercial ) Surrogacy under
ART Bill 2010, 2014 - 91pg.
3.XIII.B.Legal procedural compliance in order to commission altruistic surrogacy under
proposed Surrogacy Bill 2016 – 105pg
3.XIV. Thematic Issues: - 108pg
3.XIV.a.Infertility as Medical Diseases Necessitating Curative Treatment or Medical
Intervention - 108pg
3.XIV.b.Surrogacy as Medical Treatment for Infertility either Curative treatment or Suppressive Treatment or Circumventive treatment – 109pg
3.XIV.c. Surrogacy as Social Arrangement- 112pg.
3.X.V.Concluding Notes- 113pg.
Enc.- Table 1 - Definition of Surrogacy under Indian Legal Instruments & Under Foreign
Legislations – 114- 118pg.
Chapter 4-Surrogate Mother as Stakeholder in Surrogacy Arrangement - 119-201pg.
& Legal Safeguards –
4.I.Definition of Surrogate mother under India Statutes, Foreign Statutes & Judicial
Interpretation- 122pg
4.II.Nature & Forms of surrogate mother- 123 pg.
4.II. a.Commercial, Gestational, Anonymous Surrogate mother under the earlier Assisted
Reproductive Technology (ART) Bill 2010, 2014 - 123pg
4.II.b. Altruistic, Close Family Relative Surrogate mother under Surrogacy Bill 2016-124pg
4.III.Eligibility conditions for surrogate mother- 124 pg
4.III.a. Eligibility conditions for surrogate mother under ART Bill 2010, 2014- 124 pg.
4.III. b.Eligibility conditions for surrogate mother under Surrogacy Bill 2016 - 124pg.
4.IV. Procedural compliances to be followed by surrogate mother to enter into surrogacy
arrangement under ART Bill 2010, 2014 & Surrogacy Bill 2016- 128pg.
4.IV.a.Procedural compliances for surrogate mother to enter into surrogacy arrangement
under ART Bill 2010, 2014 –128pg.
4.IV.b.Procedural compliances for surrogate mother to enter into surrogacy arrangement
under Surrogacy Bill 2016 -128pg.
4.V. Process of Surrogate motherhood & Its Implications on the surrogate mother- 129pg.
4.VI. Profile of Surrogate Mother – Socio economic Background-Interview Schedule
inferences using primary & secondary Data – Enumeration with Pie Charts- 131pg.
4.VII. Thematic Issue – 139pg.
4.VII.i.Determination of legal mother & contesting claim of motherhood in surrogate
pregnancy involving three competing women after fragmentation of motherhood under ART
Bill 2010, 2014, Surrogacy Bill 2016 –139pg.
4.VII.ii. Legal status of surrogate mother under ART Bill 2010, 2014, Surrogacy Bill 2016-139pg.
4.VIII. Critical Assessment of legal rights & safeguards for surrogate mother under ART bill
2010, 2014 & Surrogacy Bill 2016- 149pg
4.IX.Thematic Issues – 149pg.
4.IX.a.Are the existing legal safeguards provided under ART Bill2010, 2014, Surrogacy Bill
2016 adequate to protect surrogate mother’s interest?-149pg.
4.IX.b.Are the existing legal provisions in the Bill under ART Bill, Surrogacy Bill
exploitative [socio economic reproductive, health] of surrogate mother? Are the existing legal
provisions under ART Bill, Surrogacy Bill protecting interest or provide safeguard for
surrogate mother to check exploitation? 149pg
4.IX.c.Enumeration of Rights under ART Bill 2010 , 2014 & Surrogacy Bill 2016 & Critical
analysis with case studies and comparative foreign laws - 149pg
4.IX.c. i.Right of surrogate mother to enter into surrogacy agreement- 149pg
4.IX.c. ii.Right of surrogate mother to monetary compensation- 156pg
4.IX.c. iii. Right of Surrogate mother to informed consent- 164pg
4.IX.c. iv.Right of Surrogate mother to counselling- 169pg
4.IX.c.v. Right of surrogate mother to Insurance- 171pg.
4.IX.c.vi.Right of surrogate mother to reproductive health conditions during surrogate
pregnancy- 174pg.
4.IX.c.vii.Right of surrogate mother to seek abortion- 180pg.
4.IX.c. viii. Right of Surrogate mother to have Record keeping on health surrogate mother
health- 181pg
4.IX.c. ix. Right of surrogate mother to be free from Offence of Exploitation of surrogate
mother.- 182pg.
4.X. Suggested Safeguards for surrogate mother- Need for Revision of legal rights under
ART, Surrogacy Bill – Enumeration of rights not mentioned in either the ART bill 2010,
2014 or Surrogacy Bill 2016 – 185pg
4.X.a.Right to psychological screening and mental health counselling of surrogate mother –
(prior to and during pregnancy )- 185pg.
4.X.b.Right of surrogate mother to post delivery care- physiological and psychological-186pg.
4.X.c.Right of Surrogate mother to reproductive freedom, decision making-189pg.
4.X.d.Right of surrogate mother to be free form legal action or immunity from suits-191pg.
4.X.e.Right of surrogate mother’s own child crèche, child care support & insurance or social
security for surrogate mother’s own child- 192pg
4.X.f.Right of surrogate mother to Accommodation or Lodging stay arrangement (during
Surrogate Pregnancy)- 194pg.
4.X.g.Right of surrogate mother to maternity leave or compensation for lost wage or work
days, hours” for the duration of surrogate pregnancy- 197pg.
4XI. Judicial interpretation on Surrogate mother legal recognition legal safeguards by Indian
judiciary – Landmark cases – 199pg.
4.XI.a.Baby Manaji Yamanda. Vs. Union of India (2008) 14 SCC 518. – 199pg
4.XI.b.Jan Balaz v. Anand Municipality and Ors. AIR2010Guj21 - 199pg.
4.XII. Concluding Notes - 200-201pg
Chapter 5- Children Born of Surrogacy as Stakeholder - 202-270pg
In Surrogacy Arrangement & Legal Safeguards arrangement & legal safeguards –
5.I.Definition of Surrogate child under India, Foreign Statutes - 204pg
5.II Description & categorization of Surrogate child- 205pg.
5.II.a. Description of Surrogate child born under domestic altruistic surrogacy under
Surrogacy Bill 2016 – 205pg
5.II.b..Description of Surrogate child born under commercial overseas surrogacy under ART
Bill 2010, 2014– 205pg
5.III.Judicial interpretation on Surrogate child on legal status, legal recognition legal
safeguards by Indian judiciary – Landmark cases - 206pg.
5.III.a Landmark cases - Baby Manaji Yamanda. Vs. Union of India – 206pg
5.III.b. Jan Balaz v. Anand Municipality and Ors.- 207pg.
5.IV Plight of child born through surrogacy and need for legal safeguard, protection- 209pg.
5.IV a. Health (physical, psychological) of Surrogate Child & Impact of IVF surrogacy
process on health of child – 210pg.
5.V Testimonial excerpts from the first ever IVF baby named Kanupriya alias Durga, born in
India in Kolkata 1978 – 215pg.
5.V a. Testimonial excerpts from the Surrogate babies around the world on understanding
surrogacy, physical and psychological plight- 215pg.
5.VI. Legal status of child born of surrogacy under ART Bill 2010, 2014, Surrogacy Bill
2016–Presumption of legitimacy birth & Legitimate Status for surrogate child as normal
biological child – 216pg.
5.VII.A. Critical Assessment of legal rights & safeguards for surrogate child ( born under
domestic surrogacy) under ART bill 2010, 2014 & Surrogacy Bill 2016 – 221pg
5.VII.A. i.Right to parentage of surrogate child under ART Bill 2010, 2014- 221pg
5.VII.A. ii.Right of surrogate child to certainty, predictability of custody & parentage,
recording of intent of couples under surrogacy agreement – 222pg.
5.VII.A. iii.Right of surrogate child to be free from rejection and abandonment of surrogate
child post birth by intending couple – 226pg.
5.VII.A. iv.Right to social security, Insurance for surrogate child – 227pg.
5.VII.A. v.Right of Surrogate child to information on gamete donors, surrogate– 228pg.
5.VII.A. vi.Right of surrogate child to birth certificate (Registration of names of Intending
couple) – 230pg.
5.VII.A. vii.Right of surrogate child to inheritance, succession, testamentary rights – 232pg.
5.VII.B. Critical Assessment of legal rights & safeguards for surrogate child ( born under
foreign surrogacy) under ART bill 2010, 2014 & Surrogacy Bill 2016 – Enumeration of
Rights under ART Bill 2010, 2014 & Surrogacy Bill 2016 brief analysis with case studies and
comparative foreign laws- 234pg.
5.VII.B.i.Right to appointment of local guardian ( immediate custody)- 235pg.
5.VII.B. ii.Surrogate child freed for adoption – gross violation of right to life, development of
surrogate child – 237pg.
5.VII.B. iii.Right to legal recognition of birth certificate ( issued overseas) to surrogate child
in country of intending couple ( foreign country) – 239pg
5.VII.B. iv.Right to issue of Travel documents, Passport– 243pg.
5.VII.B.v.Right to citizenship for surrogate child – 244pg.
5.VIII.I.Suggested Safeguards for surrogate child–Enumeration of rights Not mentioned in
either ART Bill 2010, 2014 or Surrogacy Bill 2016 taking after comparative foreign law–
5.VIII.i.Right to breastfeeding for surrogate child – 247pg.
5.VIII. ii. Screening of intending couples before surrogacy– 249pg.
5.VIII. iii.Right of surrogate child to be free from criminal offences as Trafficking,
Abduction other crimes – 252pg.
.5.VIII. iv.No Punishment against Sex Selective or Family Balancing Surrogacy elimination
of girl surrogate child – 254pg.
5.VIII. v.Right of surrogate child to birth siblings- 257pg.
5.VIII.vi.Unaddressed Plight of surrogate child born under these given conditions switching
up or mixing of gametes, overseas commercial surrogacy in contravention of proposed law-259pg.
5.IX. Suggested policy consideration paramount consideration to child interest in surrogacy
arrangement guiding all surrogacy ( domestic foreign ) cases- 262pg.
5.IX.a. Possible approach of incorporating UNCRC mandate of paramount consideration to
child interest in surrogacy arrangement – Instances of UK Family court precedents upholding
best interest of child as guiding directive for determination, adjudication of issues concerning
surrogate child in surrogacy arrangement over riding any other consideration including
breach of statutory law- 262pg
5.IX.b. Amendment in civil law birth registration, law of presumption ( discussed above)
specifically providing for child born of surrogacy – 262pg
5.X.Concluding Remarks – 269-270pg.
Chapter 6-Commissioning or Intending couple as Stakeholder in Surrogacy- 271-402pg.
Arrangement & Legal safeguards -
6.I.Definition of Commissioning or Intending couple under the ART Bill 2010, 2014
Surrogacy Bill 2016 & Foreign Statutes- 275pg
6.II.a.Eligibility criteria of IP & Categorization of IP under ART Bill 2010– 277pg
6.II..a.1. Categorization of IP & nature of Surrogacy arrangement for IP under ART Bill 2010
- IP as Indian national, foreigner commissioning Commercial Domestic Overseas or Foreign
surrogacy- 278pg
6.II.a.2.Preconditions to be satisfied by IP commissioning commercial domestic overseas
surrogacy under ART Bill 2010- 278pg.
6.II.a.3.Additional Preconditions to be satisfied by foreigner IP commissioning commercial
overseas surrogacy under ART Bill 2010- 279pg.
6.II.b.Eligibility criteria of IP & Categorization of IP under ART Bill 2014– 280pg
6.II.b.1.Categorization of IP & nature of Surrogacy arrangement for IP under ART Bill 2014
-IP as Indian national, foreigner commissioning Commercial Domestic Overseas surrogacy
under ART Bill 2014- 280pg.
6.II.b.2. Preconditions to be satisfied by IP (Indian, Foreign Residents) commissioning
Commercial domestic, Overseas surrogacy under ART Bill 2014- 282pg.
6.II.b.3.Additional Preconditions to be satisfied by foreign resident IP commissioning
commercial overseas surrogacy under ART Bill 2014 – 282pg.
6.III.c.Eligibility criteria of IP & Categorization of IP under Surrogacy Bill 2016 – 283pg.
IP as Indian national commissioning Domestic altruistic surrogacy-
6.II.c.1. Preconditions to be satisfied by IP commissioning Domestic altruistic surrogacy
under Surrogacy Bill 2016- 283pg
6.IV.Judicial interpretation on Intending or Commissioning Couples on legal status, legal
safeguards by Indian Courts – Landmark cases - 285pg.
6.IV.a Baby Manaji Yamanda. Vs. Union of India - 285pg
6.IV.b. Jan Balaz v. Anand Municipality and Ors.- 286pg.
6.V.Foreign Judicial interpretation on legal status and legal safeguard for Intending couple
under Indian Foreign cases –landmark foreign cases - Johnson vs Calvert, Re Baby M Cases-
289pg
6.VI.Thematic Issue– Is there right of a person to Commissioning Surrogacy as Human right
under international human right convention & constitutional right under Right to life,
personal liberty under Indian constitution- 290pg.
6.VI. a Right of a person ( infertile, Medically Needy) to Commissioning Surrogacy as facet
of right to health ( reproductive, right to access medical treatment, technology as
Constitutional right under Article 21 of Indian constitution - 291pg
6.VI.b.Right of a person ( infertile , Medically Needy) to Commissioning Surrogacy as facet
of right to procreation, family formation, reproductive autonomy or freedom, right to
privacy, as conventional Human right& Constitutional right- 293pg.
6.VI.c.Right of a person ( Infertile , Medically Needy) to Commissioning Surrogacy as facet
of right to procreation, family formation, reproductive autonomy or freedom, right to
privacy, as facet of right to life under Article 21 Indian constitution- 296pg.
6.VI.d. International or Foreign cases on access to medical technology as facet of right to
privacy, family formation – 297pg.
6. VII. Enumeration of Rights, Duties of IP under ART Bill 2010 , 2014 & Surrogacy Bill
2016 & Critical analysis with case studies and comparative foreign laws- 299pg.
6. VII. a.Right to establishment of Parentage in intending couples - 299pg.
6. VII. b. Right of IP to registration of names in birth certificate of surrogate child- 310pg
6.VII.c.Right of Intending couples to enter into surrogacy agreement- 312pg.
6.VII.d. Right of IP to certainty, predictability of surrogacy agreement – 317pg.
6.VII.e. Right of intending couples to counselling & informed consent- 320pg.
6.VII.f.Right of IP to seek assistance from ART Bank – ( Procuring Surrogate mother, Egg
donor)- 324pg.
6.VII.g.Right of IP to Privacy & confidentiality of information- 325pg.
6.VII.h.Right of IP to obtain Discharge Certificate from the infertility clinic- 326pg.
6.VII.i. Right of IP to obtain receive declaration form surrogate mother- 327pg.
6VII.j. Criminalization of reproductive rights, choices &Penalizingsanctions against IP on
family making choices- 328pg.
6.VIII.Unaddressed legal status of Indian Intending couples commissioning overseas or
foreign commercial surrogacy – 331pg.
6.IX.Legal Issues Intending couples‘s right to procreation under Surrogacy Bill2016- 331pg.
6.IX.a.Time Bar under Surrogacy Bill 2016 -Problematic for IP – Abridgement,
Contravention of reproductive rights , right to privacy of IP - 331pg.
6. IX.b.IP’s Prior Childlessness – One child norm Arbitrary, Discriminatory against infertile
IP – 335pg.
6. IX.c. IP to obtain Certificate of essentiality & other certificates - 336pg.
6.IX.d. Close Family Relative Surrogate Mothers under Surrogacy Bill 2016 Problematic for
IP – Abridgement, Contravention of reproductive rights of IP- 337pg.
6.IX.e. Disclosure of female infertility of IP ( Intending Mother) among family threat to
domestic violence, marriage annulment against Intending Mother- 342pg.
6.X..Statutory Duty on IP under ART Bill 2010, 2014 & Surrogacy Bill 2016- 344pg
6.X.i. Duty on IP to provide monetary compensation to surrogate mother - 344pg
6.X.ii.Duty of IP to not reject and abandon surrogate child post birth- 348pg.
6.X.iii. Duty on IP against Sex Selective or Family Balancing Surrogacy elimination of girl
surrogate child- 349pg.
6.X.iv. Duty on IP against using two surrogate mothers simultaneously ( Twiblings)- 351pg
6.X.v. Duty on IP against movement of surrogate mothers across borders- 352pg.
6.XI.Suggested Safeguards for IP - Need for Revision of legal rights under ART, Surrogacy
Bill – Enumeration of rights not mentioned in either the ART bill 2010, 2014 or Surrogacy
Bill 2016 taking after foreign comparative law – 353pg.
6.XI. a.Right of couples to be consulted, consent, decision making on handling, usage of their
own embryo, gametes- 354pg.
6.XI. b.Right of IP couples to storage preserving embryo, gametes & right to recovery,
retrieval of frozen embryo, gametes in course of surrogacy, ART, medical procedure- 356pg
6.XI. c. Right of IP to be protected from switching up or mixing of gametes, embryos during
surrogate pregnancy- 356pg
6.XI.d. Right of IP Intending Couple to free from fraud, cheating, deception economic
offences- 358pg.
6.XI.e.Right of IP to secure custody of surrogate child ( time period of handing over of
custody)- 359pg.
6.XI.f. Right of IP (Intending Mother) to Child care leave for surrogacy - 361pg.
6.XI.g Right to psychological screening and mental health counselling of surrogate
mother(Prior to and During pregnancy)- 362pg
6.XI.h. Screening of intending couples before surrogacy- 363pg.
6.XII. Thematic issues – 366pg
6.XII.a.Legal Status & Legal permit, legal safeguard for IP being “Foreigner, Foreign
resident” as NRI, OCI, PIO to commission surrogacy in India- 366pg.
6.XII.b. Legal Status & Legal permit, legal safeguard for IP being “Same Sex ” ( Indian
national, Foreigner, Foreign Resident) IP to commission surrogacy in India – 374pg.
6.XII.c. Legal Status & Legal permit, legal safeguard for IP being “Transgender” ( Indian
national, Foreigner, Foreign Resident) community IP to commission surrogacy in India-379pg
6.XII.d. Legal Status & Legal permit, legal safeguard for IP being “Single Unmarried” (
Indian national, Foreigner, Foreign Resident) IP to commission surrogacy in India &
comparative foreign law perspective- 380pg
6.XII.e. Legal Status & Legal permit, preconditions for “Single Widow Divorcee or Ever
married women or man” ( Indian national, Foreigner, Foreign resident ) to commission
surrogacy in India- 384pg.
6.XII.f. Legal Status & Legal permit, preconditions for “Live in Partners” ( Indian national,
Foreigner, Foreign resident ) to commission surrogacy in India – 386pg.
6.XIII. Contemporary Recent policy instruments regulations on Legal permit for “Foreign
resident” as NRI, OCI, PIO & “Foreigner” to commission surrogacy in India- 388pg
6.XIII.a.Home Ministry Guidelines (Foreign Division) Foreign Nationals Intending to visit
India for Commissioning Surrogacy & Conditions to be fulfilled for Grant of VISA, of the
year 2013- 388pg.
6.XIII.b.PIL Jayashree Wad vs Union of India - 388pg.
6.XIII.c.Supreme Court Notice to centre Government of India on commercial overseas
surrogacy in India- 389pg.
6.XIII.d.The Government of India Affidavit –Proposal to ban commercial , foreign surrogacy
in India- 389pg.
6.XIII.e.The Ministry of Commerce & Industry, Department of Commerce on Import of
Gametes, Embryos - 389pg
6.XIII.f.The Home Ministry FRRO instruction to Indian mission OCIs card holders on
Surrogacy – 389pg.
6.XIII.g.Department of Health Research (DHR), Ministry of Health & family Welfare
Government of India “Commissioning of surrogacy instruction to all ART clinics, Banks,
infertility clinics offering surrogacy services– 390pg.
6.XIV. Implications & Impact of Contemporary Recent policy change on IP legal Status &
legal permit, legal safeguard for IP being “Foreign resident”& “Foreigner” to commission
surrogacy in India – 390pg.
6.XIV. a.ICMR circular challenged by Foreign intending Couples in Petition before Mumbai
HC- 391pg.
6.XIV.b.Overseas Citizenship of India (OCIs) file petition before Supreme Court of India
against the proposed ban on them commissioning surrogacy in India- 392pg.
6.XIV.c. Recovery of Embryo, Gametes of Foreign couples from India clinics – 392pg.
6.XIV.d. Right of IP to be protected from switching up or mixing of gametes, embryos during
surrogate pregnancy- 393pg.
6.XV.Suggested safeguards of IP Foreigner, Foreign Resident for better protection of legal
rights – 394pg.
6.X.V.a.Permissibility for Foreign Resident, Foreigner IP to commission surrogacy in India
with Embassy, Documentation, Protocols - 394pg.
6.XV.b.Right of Foreign Resident, Foreigner IP to legal recognition of birth certificate issued
in country of commissioning surrogacy) mentioning names of IP in country of intending
couple ( foreign country)- 397pg
6.XV.c.Legal obligation on Foreign IP towards surrogate child- 401pg.
6.XVI.Concluding Remarks- 401-402pg
Chapter 7– Legislative, Judicial developments on surrogacy in India 403-515pg
& Proposed legal framework providing for Compensated Surrogacy & Regulatory
Foreign Surrogacy in India
7.I.Chronological legal, Judicial and policy developments on Surrogacy in India - Changing
legal position from unregulated liberal, permissive commercial, overseas surrogacy regime to
proposed domestic, altruistic surrogacy regime – 406pg
7.I.i.The National Health Policy ( NHP) 2002- 406pg
7.I.ii.Formulation of National Guidelines for Accreditation, Supervision, and Regulation of
ART Clinics in India or the ICMR Guidelines 2005- 407pg.
7.I.iii.The ICMR Ethical Guidelines for Biomedical Research 2007 under Specific Principles
for Assisted Reproductive Technologies - 410pg
7.I.iv. Baby Yamanda Manji Vs. Union of India 2008- 411pg.
7.I.v.The Assisted Reproductive Technology (Regulation) Bill 2008- 412pg.
7.I.vi. Law Commission Report No. 228 titled as Need For Legislation to Regulate Assisted
Reproductive Technology Clinic as well as Rights & Obligations of Parties to a Surrogacy ,
year 2009 – 413pg
7.I.vii. Jan Bajaj vs Anand Muncipality 2009- 414pg
7.I.viii. Union of India & Anr v Jan Balaz and others,2009 – 415pg
7.I.ix. The Assisted Reproductive Technology (Regulation) Bill 2010- 415pg.
7.I.x.The Home Ministry Guidelines 2012- 418pg.
7.I.xi. National Registry of Assisted Reproductive Technology (ART) Clinics and Banks in
India, (NRACBI) 2013- 420pg.
7.I.xii. Indian Society for Third-Party Assisted Reproduction (INSTAR) 2013 – 420pg.
7.I.xiii. The Assisted Reproductive Technologies (ART) (Regulations) Bill 2014- 421pg.
7.I.xiv. Ministry of Home Affairs (MHA) Memorandum Foreign nationals ( single parent)
Intending to visit India for commissioning surrogacy 2014 – 426pg.
7.I.xv. Jayashree Wad vs Union of India 2015- 427pg.
7.I.xvi. Supreme Court Notice to centre Government of India on commercial and overseas
surrogacy in India 2015- 427pg.
7.I.xvii.The Department of Health Research, Ministry of Health and Family Welfare, Govt. of
India circular to all enrolled ART Clinics ( with ICMR) in India 2015yr.- 427pg.
7.I.xviii.The Government of India Affidavit –Proposal to ban commercial , foreign surrogacy
in India 2015yr- 427pg.
7.I.xix. The Ministry of Commerce & Industry, Department of Commerce Circular on
Prohibition on Import of Gametes, Embryos 2015- 428pg.
7.I.xx. The Home Ministry FRRO directives to Indian mission OCIs card holders on
Surrogacy 2015 - 428pg.
7.I.xxi.Ministry of Health & family Welfare Government of India “Commissioning of
surrogacy instruction to all ART clinics, Banks, infertility clinics offering surrogacy services
2015- 428pg.
7.I.xxii.Surrogacy ( Regulations) Bill 2017 - Salient features & Brief Critique- 429pg.
7.II.Omissions & Oversights under Surrogacy Bill - Lack of Regulatory Safeguards under
Surrogacy Bill – 470pg
7.II.A.--Nil Altruistic Surrogacy Agreement under Surrogacy Bill– 470pg
7.II.B.--No provision on ART procedures to be conducted on Surrogate mother - 473pg.
7.II.C.--No provision on screening of surrogate mother, intending couples before
commissioning surrogacy- 473pg
7.II.D.--No provision on psychological or mental health screening of Surrogate Mother,
Intending Couples-- 473pg.
7.II.E.--No provision on stay arrangement for Surrogate mother ( during Surrogate
Pregnancy)– 474pg.
7.II.F.--No provision on Record keeping on surrogacy procedures, Consent & NO record
keeping on Surrogate mother, intending couples, child born of surrogacy- 474pg.
7.II.G.--Omissions to prohibit penalize misuse of ART, surrogacy for illicit activities-475pg.
7.II.H.—No provision on Indian married couples commissioning commercial, overseas
surrogacy &No Provision on legal recognition of child born of such surrogacy- 477pg.
7.II.I.--No provision on child born of surrogacy arrangement following switching up or
mixing of gametes- 477pg.
7.II.J.-- No provision on written undertaking from Intending couples for not involving child
born of surrogacy in pornography or paedophilia, illicit activities- 478pg.
7.II.K.--No provision on registration of surrogate mother on behalf of Intending Couples at
the ART Centre/ Clinic- 478pg.
7.II.L.--No restraint on travel for surrogate mother outside India– 479pg.
7.II.M.--No provision imposing legal obligation on intending couple to secure insurance
surrogate child born with abnormality- 479pg.
7.II.a.Omissions & Oversights under Surrogacy Bill - Lack of right based perspective for
Stakeholders – surrogate mother , child born of surrogacy, Intending couples in Surrogacy
Arrangement- 479pg.
7.III.Thematic Issues – Contesting legal issues in Surrogacy Bill 2017- 482pg.
7.III.a.Is Surrogacy Bill 2017 Inconsistent with existing Indian Statutes- 482pg.
7.III.b.Inconsistency of Surrogacy Bill with MedicalTermination of Pregnancy Act1971-
482pg
7.III.c.Inconsistency of Surrogacy Bill with Indian Evidence Act 1872 , The Registration of
Births and Deaths Act, 1979 & Issues of Establishing Parentage, Birth Registration for child
born of surrogacy – 483pg.
7.III.d.Inconsistency of Surrogacy Bill with Indian Penal Code (IPC) Act – on exploitation
trafficking of surrogate mother- 484pg.
7.IV.a.Is Surrogacy Bill 2017 Inconsistent with Indian constitutional rights and directives &
International Human Right Conventions- 485pg.
7.IV.b.Inconsistency of surrogacy Bill with UN child Right Convention (UNCRC)and Indian
Constitutional Directives -on rights of child born of surrogacy- 485pg.
7.IV.c.Inconsistency of surrogacy Bill with UN CEDAW, ICPD and Indian Constitutional
Directives– on reproductive health rights of surrogate mothers- 489pg.
7.IV.d.Inconsistency of surrogacy Bill with ICPD international convention on population
Development & Indian Constitutional directives – on right of intending couples to
reproductive rights, right to family formation, right to privacy – 498pg.
7.V.Indian Judicial Developments on Surrogacy through Case law decisions – Brief appraisal
of judicial pronouncement by Supreme court and High courts on surrogacy in India- 501pg.
7.V.a.Baby Manji Yamada vs. Union of India (UOI) and Another- 501pg.
7.V.b.Jan Balaz vs Union of India- 507pg.
7.V.c.Union of India & Anr. Jan Balaz & ors - 512pg.
7.V.d.PIL Jayashree Wad vs Union of India – 512pg.
7.V.e.K. Kalaiselvi vs Chennai Port Trust , P. Geetha vs The Kerela Livestock Development
Board Ltd , Rama Pandey vs Union Of India & Ors. , Dr. Hema Vijay Menon v. State of
Maharashtra- 514pg.
7.VI. Concluding Remarks – 514-515pg.
Chapter 8 - Recommendations, Suggestions & Conclusion – 516- 552pg
Proposed Legal Framework on Surrogacy in India
8.I. Recommendations, Suggestions – Proposed legal framework on Surrogacy in India -
Suggestions on regulating Surrogacy in India – 522pg.
8.I.A.Proposed Compensated Regulatory Surrogacy in India - 523pg.
8.I.A.i.Meaning & conceptualization of Compensated Regulatory Surrogacy in India-523pg
8.I.A.ii.Categorization & Enumeration of reasonable or permissible expenses and non
reasonable or non permissible expenses – 523pg.
8.I.A.iii.Determination of quantum of monetary compensation with upper limit and lower
limit by statutory authority – 524pg.
8.I.A.iv.Assessment, Approval of monetary compensation by statutory authority- 524pg.
8.I.A.v.Just equitable Distribution of benefits & burden of monetary compensation on
surrogate mother- 525pg.
8.I.A.vi..Mode, Manner of payment & Periodicity & Stages of payment- 525pg.
8.I.A.vii. Documentation of monetary payment under surrogacy agreement- 525pg.
8.I.A. a.Significance of Compensated Regulatory Surrogacy in India – 526pg.
8.I.A.b. Comparative foreign laws, cases on Compensated Surrogacy- 527pg.
8.I.A.c.Comparative foreign cases on Compensated Surrogacy- 529pg.
8.I.B.Proposed Regulated Foreign Surrogacy in India - 530pg.
8. I.B.i.The possible working mechanism and procedural compliances for overseas or foreign
surrogacy may be described as follows- 531pg.
8.I.B.ii.Obtaining prior written permit from embassy office of foreign intending couple
531pg.
8. I.B.iii.Written legal undertaking to legal recognition, rights to child born of overseas
surrogacy from embassy office of foreign intending couples– 531pg.
8. I.B.iv. Regulation by Diplomatic, Consular office – 531pg.
8. I.B.v.Division of responsibilities among the Diplomatic, Consular offices of the country of
foreign intending couples and country of commissioning surrogacy- 531pg.
8. I.B.vi.Certificate of Genetically link between either of Intending Coupes & Surrogate
Child – 532pg.
8. I.B.a.Significance of Regulated Overseas Surrogacy at the international level- Preventive
Approach- 532pg.
8. I.C. Proposed Legal safeguards for conduct of Regulated Overseas or Foreign Surrogacy in
India- 534pg.
8.I.D. Proposed legal rights, safeguards, obligations of stakeholders including the Intending
couples, surrogate mother, child born of surrogacy– 536pg.
8.I.D.a.Proposed legal rights of surrogate mother- 536pg.
8.I.D.a. i.Right of surrogate mother to enter into surrogacy agreement – 536pg
8.I.D.a. ii.Right of surrogate mother to legal representation, counselling of parties to the
surrogacy agreement. Legal representation under surrogacy agreement– .536pg
8.I.D.a.iii.Right of surrogate mother to monetary compensation – Reimbursable or
permissible, reasonable expensesmay be expenses arising directly out or related to surrogate
pregnancy– 536pg.
8.I.D.a,iv.Right of Surrogate mother to written Informed consent and Comprehensive
counselling – 536pg.
8.I.D.a.v.Right of surrogate mother to reproductive health conditions during surrogate
pregnancy - Multiple embryo transfer & foetal reduction permitted with counselling
information to surrogate mother, Assessment by competent authority of no risks to surrogate
mother’s health&Court authorization of surrogacy agreement before embryo transfer-536pg.
8.I.D.a.vi. Right to psychological screening and mental health counselling of surrogate
mother – (prior to and during pregnancy ) – 536pg.
8.I.D.a.vii.Right of surrogate mother to post delivery care- Physiological and Psychological –
– 537pg
8.I.D.a.viii.Right of Surrogate mother to reproductive freedom, decision making– 537pg
8.I.D.a.ix.Right of Surrogate mother to have Record keeping on health surrogate mother
health – 537pg.
8.i.D.a.ix.Right of surrogate mother to be free form legal action or immunity from suits16
537pg
8.I.D.a,x. Right of surrogate mother’s own child crèche, child care support & insurance or
social security for surrogate mother’s own child– 537pg.
8.I.D.a.xi.Right of surrogate mother to Accommodation or Lodging stay arrangement ( during
Surrogate Pregnancy) – 537pg
8.I.D.a.xii.Right of surrogate mother to maternity leave or compensation for lost wage or
work days, hours for the duration of surrogate pregnancy– 537pg.
8.I.D.a.xiii.Right of surrogate mother to be free from Offences or Exploitation of surrogate
mother – 537pg.
8.I.D.a.xiv.Amendment in civil law birth registration law under Birth Registration Act , law
of presumption under Indian Evidence Act – 537pg.
The detailed description with respect to rights, safeguards, obligations of stakeholders as
surrogate mother is discussed in chapter 4.– 537pg.
8.I.D.b. Proposed legal rights, safeguards for children born of Surrogacy are enumerated as
following: - 537pg.
8.I.D.b.i. Right to breastfeeding for surrogate child – 537pg.
8.I.D.b. ii.Screening of intending couples before surrogacy– 537pg.
8.I.D.b. iii.Right of surrogate child to be free from criminal offences as Trafficking,
Abduction other crimes –– 537pg.
7.I.D.b.iv.Imposing Punishment against Sex Selective or Family Balancing Surrogacy
elimination of girl surrogate child – 537pg.
7.I.D.b.v.Right of surrogate child to birth siblings– 537pg.
8.I.D.b.vi. Right to appointment of local guardian (immediate custody) – 537pg.
8.I.D.b.vii.Additional rights for children born of surrogacy to foreign Intending Couples–537
8.I.D.b. viii.Right to legal recognition of birth certificate (issued overseas) to surrogate child
in country of intending couple (foreign country) – 537pg.
8.I.D.b.ix. Right to issue of Travel documents, Passport – 537pg.
8.I.D.b. x.Right to citizenship for surrogate child – 537pg.
8.I.D.b.Incorporating United Nations Child Right Convention UNCRC 1989 mandate of
paramount consideration to child interest in surrogacy arrangement– 537pg.
8.I.D.b.x.Amendment in civil law birth registration law under Birth Registration Act, law of
presumption under Indian Evidence Act – 538pg
The detailed description with respect to rights, safeguards, obligations of stakeholders as
children born of surrogacy is discussed in chapter 5. – . 538pg.
8.I.D.c.Proposed legal rights, safeguards for Intending couples- 538pg.
8.I.D.c.i.Right of Intending couples to establishment of Parentage in intending couples–538
8.I.D.c.ii.Right of Intending couples to registration of names in birth certificate of surrogate
child – 538pg
8.I.D.c.iii.Right of Intending couples to enter into surrogacy agreement – 538pg.
8.I.D.c.iv.Right of Intending couples to certainty, predictability of surrogacy agreement-538
8.I.D.c.v.Right of intending couples to counselling & informed consent – 538pg
8.I.D.c.vi.Right of Intending couples to seek assistance from ART Bank – ( Procuring
Surrogate mother, Egg donor)- 538pg.
8.I.D.c.vii.Right of Intending couples to Privacy & confidentiality of information - 538pg.
8.I.D.c.vii.Right of Intending couples to obtain Discharge Certificate from the infertility
clinic- 538pg.
8.I.D.c.viii.Right of Intending couples to obtain receive declaration form surrogate mother-
538pg
8.I.D.c.ix.Right of Intending couples to be free from Criminalization of reproductive rights
8.I.D.cx.choices &Penalsanctions against IP on family making choices- 538pg
8.I.D.c.x.Right of Intending couples to be consulted, consent, decision making on handling,
usage of their own embryo, gametes - 538pg
8.I.D.c.xi.Right of Intending couples to storage preserving embryo, gametes & right to
recovery, retrieval of frozen embryo, gametes in course of surrogacy, ART, medical
procedure- 538pg.
8.i.D.c.xii.Right of Intending couples to be protected from switching up or mixing of
gametes, embryos during surrogate pregnancy- 538pg.
8.I.D.c.xiii.Right of Intending couples Intending Couple to free from fraud, cheating,
deception economic offences- 538pg.
8.I.D.c.xiv.Right of Intending couples to secure custody of surrogate child – ( time period of
handing over of custody)- 538pg.
8.I.D.c.xv.Right of Intending couples (Intending Mother) to Child care leave for surrogacy-
538pg.
8.I.D.c.xvi. Right to Intending couples to psychological screening and mental health
counselling of surrogate mother - 538 pg.
8.I.D.c.xvii. Screening of intending couples before surrogacy- 539pg.
8.I.D.d.Legal Obligation on Intending couples- 539pg
8.I.D.d.i.Statutory Duty on Intending couples IP to provide monetary compensation to
surrogate mother - 539pg.
8.I.D.d.ii.Duty of Intending couples to not reject and abandon surrogate child post birth- 539pg
8.I.D.d.iii. Duty on Intending couples against Sex Selective or Family Balancing Surrogacy
elimination of girl surrogate child- 539pg.
8.I.D.d.iv. Duty on Intending couples against using two surrogate mothers simultaneously (
Twiblings)- 539pg.
8.I.D.d.v. Duty onIntending couples IP against movement of surrogate mothers across
borders 539pg.
8. I.D.e Proposed Legal Recognition Permissibility & Safeguard for Intending couples in
these status or capacity to commission surrogacy in India- 539pg
8. I.D.e Among Indian Nationals - 539pg.
i.Single Unmarried Indian national as Intending Couples to commission surrogacy in India
539pg
ii.Single Widow Divorcee or Ever married women or man Indian national as Intending
couples to commission surrogacy in India- 539pg
iii.Live in Partners Indian national as Intending couples to commission surrogacy in India-
539pg
iv.Transgender Indian national as Intending Couples to commission surrogacy in India-539
v.Same Sex IP to commission surrogacy in India- 539pg.
Among Foreign nationals or Foreigners, Foreign Residents- 539pg.
vi.Foreign nationals or Foreigners to commission surrogacy in India- 539pg.
vii.Foreign resident as NRI, OCI, PIO as Intending couples to commission surrogacy in
India-539pg.
viii.Same Sex Foreigner, Foreign Resident as Intending couples to commission surrogacy in
India- 539pg.
ix. Transgender Foreigner, Foreign Resident as Intending couples to commission surrogacy in
India- 539pg.
x.Single Unmarried Foreigner, Foreign Resident as Intending couples to commission
surrogacy in India - 539pg.
xi.Single Widow Divorcee or Ever married women or man Foreigner, Foreign Resident as
Intending couples to commission surrogacy in India- 539pg.
xii.Live in Partners Foreigner, Foreign Resident as Intending couples to commission
surrogacy in India.- 540pg.
The detailed description with respect to rights, safeguards, obligations of stakeholders as
Intending or Commissioning Couples is discussed in chapter
8.II.Need for International Convention on Surrogacy – 540pg.
8.II.a.Drafting of an international convention on Surrogacy– The Permanent Bureau of Hague
conference on private international law issues arising from international surrogacy
arrangements (ISA)- 2011- 2017 year. - 541pg.
8.II.a.i.Administrative co-operation through state designated competent authorities (Consular
or Embassy office) providing clear channels of communication, cooperation among states to
regulate International surrogacy arrangement (ISA)- 542pg.
8. II.b.Ancillary Convention on regulating International Surrogacy- Proposed Applicability
of Apostille Convention in international surrogacy arrangement at international level & at
national level in India - 544pg.
8. II.b.i. Proposed Applicability of Apostille Convention in India- 547pg.
8.III.Conclusion- 547-552pg.
Bibliography
ANNEXURES
ANNEXURE I
Annexure – I. Research Ethics & Informed Consent Form
Annexure - II. Interview Schedule for Surrogate Mother
Annexure –III. Table- Profile of Surrogate Mothers
Aneexure-IV. RTI Petitions
i..RTI Petition Karnataka State Women's Commission
ii.RTI Petition with Karnataka State Human Rights Commission
iii.RTI Petition with Karnataka Directorate Health Services
iv.RTI Petition with LIC , Head Office Mumbai
Annexure –V. Surrogacy Agreement – Proforma – Global Surrogacy Clinic Bashweshwaranagar
Bangalore.
RELATED ANNEXURE
Rajya Sabha Standing Committee Report No. 102, on Surrogacy ( Regulations) Bill 2016 –
Researcher's Thesis Findings included in the Recommendations. Pg. no. 18.
Overseas surrogacy
Supreme court Judgements on surrogacy
Surrogacy India
Surrogate mother
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