CIVIL APPLICATION No. 11364 of 2009




For Approval and Signature:



JAN BALAZ – Appellant(s)


ANAND MUNICIPALITY & 6 – Respondent(s)



MR DHAVAL C. DAVE with MR P.A. JADEJA for Appellant(s) : 1,

None for Respondent(s) : 1 – 2,4 – 7.

MR ANSHIN H DESAI for Respondent(s) : 3,






Date : 11/11/2009



The question whether a child born in India to a surrogate mother, an Indian national, whose biological father is a foreign national, would get citizenship in India, by birth, is a momentous question which has no precedent in this country.

2. Petitioner is a German national and is a biological father of two babies given birth by a surrogate mother by name Marthaben Immanuel Khristi – a citizen of India. Petitioner’s wife Susanne Anna Lohle is a German national. Due to biological reasons, the wife of the petitioner was not in a position to conceive a child. Desiring to have a child of their own, they opted for In Vitro Fertilization (IVF). Assisted Reproductive Technology Infertility Clinic at Anand came to their help. Investigation revealed that wife of the petitioner would not be in a position to reproduce ova (eggs) as a result of which it would not be possible to conceive a child even with the help of a surrogate mother by using the sperm of the petitioner. An Indian citizen keeping anonymity volunteered to donate ova, and through a scientific process the petitioner’s sperm was fertilized with the donor’s ova and the fertilized embryo was implanted to the uterus of the surrogate mother. Petitioner and his wife had entered into a surrogacy agreement with the second respondent – surrogate mother. After full discussion with Dr. Nayanaben Patel of the Clinic, surrogate mother was made known about the method of treatment. She had also agreed to hand over the child to the petitioner and his wife on delivery. Further surrogate mother had also agreed that she would not take any responsibility about the well being of the child and the biological parents would have legal obligation to accept their child and that surrogate mother would deliver and the child would have all inheritance facts of a child of biological parents as per the prevailing law.

3. Surrogate mother gave birth to two baby boys on 4.1.2008. Petitioner then applied for registration of the birth of the children in the prescribed form to Anand Nagar Palika. Anand Nagar Palika issued a certificate of birth to the children as per the provisions of Registration of Birth and Deaths Act, 1969. Earlier date of birth was shown as 14.1.2008, which was later corrected as 4.1.2008 and the name of the petitioner’s wife who was shown as the mother of the babies, was replaced with the name of Marthaben Immanuel Khristi.

4. Petitioner and his wife, though German nationals, are working in United Kingdom, stated that they are desirous of settling down in U.K. and for the said purpose they have to obtain VISA from the Consulate of the United Kingdom in India. Since babies were born in India and are Indian citizens, petitioner applied for their Passport in India showing their names as  Balaz Nikolas and  Balaz Leonard. Petitioner’s name was shown as the father and surrogate mother’s name was shown as the mother. Applications were entertained by the Passport Authorities and Passport No.G-8229646 and Passport No. G-8229647 respectively were issued in the name of above mentioned babies. Later, petitioner received an intimation-cum-notice issued by the Government of India, Ministry of External Affairs, Regional Passport Office, vide letter dated 6.5.2008 stating as follows:-

“On process it revealed that as usual procedure Passport is already issued under Tatkaal Scheme to both. Still the matter is pending in Hon’ble High Court of Gujarat and this is the citizenship related issue and also the endorsement regarding your surrogacy is to be taken in the Passport of your sons. Kindly let this office know in whose possession at present the passport is lying? One such identical case Passport application is also received in which the name of the Mother who did not conceive the birth is given in the Birth Certificate, which is also violation of Scheme 2 (1) a and 2 (1) (d) of the Birth and Death Registration Act 1969 therefore making endorsement of Hon’ble High Court’s order is to be done in Passports.

You are also hereby informed to surrender both the passport to this office immediately, it will be returned to you after the final decision received from Hon’ble High Court.”

5. Petitioner, on the basis of the direction of this Court on 13.5.2008, surrendered both the Passports on 14.5.2009 before the Passport Authority at Ahmedabad. Petitioner now seeks a direction to the Regional Passport Officer to return those Passports so that he can take the babies to Germany and then make an application in Germany so as to acquire German Citizenship. Petitioner submits that surrogacy is not recognized in Germany. Even the Immigration Office at Siberia is also insisting production of the Passport and not Certificates of Identity issued by the Passport Office, Ahmedabad. Petitioner submits that since babies are born in India and are citizens of India, Germany would not recognize them as its citizens. Denial of Passports, according to the petitioner, is illegal and violative of Article 21 of the Constitution of India.

6. Detailed counter affidavit has been filed on behalf of the Regional Passport Officer at Ahmedabad on 25.3.2008 and 4.11.2009, stating that surrogate mother cannot be treated as mother of the babies, and children born out of surrogacy, though in India, cannot be treated as Indian citizens within the meaning of Section 3 of the Citizenship Act, 1955. Further it is also stated that parents of the children are not Indian citizens and therefore, children are also not Indian citizens as per Section 3(1) (b) of Citizenship Act, 1955. Further it is also stated that as per Passport Act, 1967, only Indian citizens can apply for Indian Passport and as per Section 6 (2) (a) of the Act, Passport cannot be issued to non-citizens. Further it is also stated that as per direction of the Government of India, Ministry of External Affairs, Passport Authority can issue identity certificate, showing name of surrogate mother, which does not entail citizenship to the children but would enable him to take his children out of India. Further, it was also pointed out that the Central Government is yet to legalize surrogacy and hence, children born out of surrogacy, though in India, cannot be treated as Indian citizens.

7. Learned counsel appearing for the petitioner Mr. Dhaval C. Dave submitted that since both the children are born in India, they are Indian citizens by birth as per Section 3 of the Citizenship Act, 1955 and therefore, entitled to have all the rights of Indian citizens and the Passport Authorities are legally obliged to issue Passports to them under the Indian Passports Act, 1967. Learned counsel submitted that surrogacy is not prohibited in India and admittedly, children are born in India to a surrogate mother who herself is an Indian citizen. Learned counsel submitted that petitioner and his wife are German citizens but as the children are not born in Germany, they would not get German citizenship, especially when German law does not recognize surrogacy. Learned counsel submitted that for the purpose of obtaining VISA from the Consulate of United Kingdom, it is necessary that children should have an Indian Passport since they are born in India and not in Germany.

8. Learned counsel Mr. Anshin Desai appearing for the Passport Authority submitted that children are not Indian citizens and therefore, not entitled to get Passport under the Indian Passport Act. Learned counsel submitted that petitioner’s intention is to acquire German citizenship and in order to facilitate that he is seeking Indian citizenship for the children. Learned counsel submitted that in exceptional cases Passport Authorities can issue certificate of identity as was done in the case case of one Baby Manju Yamada. Learned Counsel also referred to the judgment of the Apex Court in Baby Manju Yamada Vs. Union of India   (2008) 13 SCC 518 where the Passport Authorities have issued only certificate for permission to travel out of India.

9. We may at the outset point out that lot of legal, moral and ethical issues arise for our consideration in this case, which have no precedents in this country. We are primarily concerned with the rights of two new born innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance. Surrogate mother is not the genetic mother or biologically related to the baby, but, is she merely a host of an embryo or a gestational carrier? What is the status of the ova (egg) donor, which in this case an Indian national but anonymous. Is the ova donor is the real mother or the gestational surrogate? Are the babies motherless, can we brand them as legal orphans or Stateless babies? So many ethical and legal questions have come up for consideration in this case for which there are no clear answers, so far, at least, in this country. True, babies conceived through surrogacy, encounter a lot of legal complications on parentage issues, this case reveals. Legitimacy of the babies is therefore a live issue. Can we brand them as illegitimate babies disowned by the world. Further, a host of scientific materials are made available to us to explain what is traditional surrogacy, gestational surrogacy, altruistise surrogacy, commercial surrogacy etc. and also the response of various countries with regard to the surrogacy, especially commercial surrogacy.

10. Commercial surrogacy is never considered to be illegal in India and few of the countries like Ukrain, California in the United States. Law Commission of India in it’s 220th Report on  Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as rights and obligations of parents to a surrogacy has opined that surrogacy agreement will continue to be governed by contract among parties, which will contain all terms requiring consent of surrogate mother to bear the child, agreement of a husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying the child to full term, willingness to hand over a child to a commissioning parents etc. Law Commission has also recommended that legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parents without there being any need for adoption or even declaration of guardian. Further it was also suggested that birth certificate of surrogate child should contain names of the commissioning parents only and that the right to privacy of the donor as well as surrogate mother should be protected. Exploitation of women through surrogacy was also a worrying factor, which is to be taken care of through legislation. Law Commission has expressed its desire that Assisted Reproductive Technology Bill with all safeguards would be passed in the near future.

11. Ukraine Surrogacy Laws are very favourable and fully support the individuals reproductive rights. Clause 123 of the Family Code of Ukraine and Order 771 of the Health Ministry of Ukraine regulate surrogacy. Ukraine laws permit commissioned parents to choose the gestational surrogacy, ova, or sperm donation embryo, adoption, programmes for which no permission is required. Legislation also provides for a commercial surrogacy agreement between the parties. Child born legally belongs to the commissioned parents and the surrogate mother cannot keep the child to herself. California is also accepting the surrogacy agreements, which has no statute directly dealing with surrogacy. Courts generally rely on Uniform Parentage Act to deal with various surrogacy agreements. California Supreme Court in Johnson Vs. Calvert (1993) 5 CAL 4th 484 held that gestational surrogate has no parental rights to a child born to her since a gestational surrogacy contract is legal and enforceable and the intended mother is the natural mother under the Californian law. In the above case the intended mother donated the egg and a surrogate mother gave birth, in such a case the Court held that the person who intended to procreate should be considered as the natural mother. In another case decided by the U.S Court in the year 1998   Buzzanca Vs. Buzzanca   1961 CAL. Appl.4th 1410 (1998), the Court considered the issue of traditional surrogacy agreements. That was a case where the surrogate mother has been artificially inseminated i.e. a surrogate mother was impregnated by using her ova and anonymous sperm, meaning thereby the intended parents had a genetic link to the child. Court held that when a married couple uses non-genetically related embryo and sperm implanted into a surrogate intended to procreate a child, they are lawful parents of the child. In another U.S case decided in 1998, In Re Marrijo Moschetta awarded legal parent rights to the intended father and surrogate mother. In another U.S case considered by the New Jersy Supreme Court, In Re Baby 537 A.2d 1227 (NJ.02/03/1988), gave custody to the natural father of the child, but rights of the adopted mother was denied. Surrogate mother who conceived the child via artificial insemination was granted visitation rights.

12. Japan has taken a different legal stand in respect of surrogacy. Supreme Court of Japan, on March 23, 2007, denied parenthood to genetic parents since the twin babies were born to a surrogate mother at United States. Interpreting the Civil Code of Japan, the Supreme Court, held a mother who physically gives birth to a child is the legal mother. There is no provision in the Code to recognize the genetic mother as the legal mother. There exists no specific laws in Japan concerning parent-child relationship for artificial insemination, and the mother   and   child relationship will be based on the fact of delivery. The issue of Citizenship status of such an infant is also a burning problem in Japan. The Japan Supreme Court rejected the Japanese commissioning parents bid to register their twins born to a U.S surrogate mother in Japan, on the ground that the law presumes the woman, who gives birth to a child as its mother.

13. Germany, as law stands today, does not recognize surrogacy agreements. Law also prohibits egg donation and advocates for embryo procreation. Medical practitioners are also prevented from performing artificial insemination or embryo donation, which are all criminal offences. Same seems to be the situation in Sweden, Norway, Italy and so on. But countries like Belgium, Netherlands and Great Britain are little more liberal. Reference may be made to the decisions of the High Court of Justice, Family Division, Rex & Y (Foreign Surrogacy) 2008 EWHC 3030 (Fam) U.K.

14. We have indicated, in India there is no law prohibiting artificial insemination, egg donation, lending a womb or surrogacy agreements. No civil or criminal penalties are also imposed. Public pressure, for a comprehensive legislation defining the rights of a child born out of surrogacy agreement, rights and responsibilities of a surrogate mother, egg donor, commissioning parties, legal validity of the surrogacy agreement, the parent child relationship, responsibilities of Infertility Clinic etc. are gaining momentum. Legislature will have to address a lot of emotional, legal and ethical issues. Question as to whether surrogacy can be seen as a ray of hope to otherwise a childless couple, so as to build up a family of their own, necessary for human happiness and social stability also calls for attention. Few are the case laws and precedents defining the rights of those who have a vital role to play in this reproductive technology. One case law worth mentioning in India is Baby Manje’s case decided by the apex Court of India (2008) 13 SCC 518. Various issues which we have highlighted in this case were not discussed or answered in that case. That was a case where the Japanese Embassy in India refused to grant the child, born to surrogate Indian mother, VISA or Passport on the ground that the Japanese Civil Code recognizes a mother only to be a woman who gives birth to a baby. Attempts made to adopt Manji also did not fructify since Guardian Wards Act, 1890 did not allow single man to adopt those babies. Efforts were made to obtain Indian Passport, which also required a birth certificate. Question arose as to who was the real mother whether it was anonymous egg donor or the surrogate mother. Birth certificate was then issued by the local Municipality, by showing the father’s name. Later the Regional Passport Office, Rajasthan issued a certificate of identity as part of a transit document and not the Passport. Certificate did not contain nationality, mother’s name or religion of the baby.

15. Mother child relationship is fraught with various problems, emotional, moral, ethical, legal, social etc. Study conducted by some organizations reveal that surrogate mothers have little difficulty in relinquishing their rights over a surrogate child to the intending parents and that the majority of surrogates are satisfied with their surrogacy experience and do not bother upon their bonding with the child they gave birth. Few other studies state that the surrogate mothers at time depict deep emotional attachment to the babies they give birth. Conflicting views have also been highlighted. Further elaboration on these ethical, psychological or moral issues are not necessary for our purpose.

16. We are in this case primarily concerned with the relationship of the child with the gestational surrogate mother, and with the donor of the ova. In the absence of any legislation to the contrary, we are more inclined to recognize the gestational surrogate who has given birth to the child as the natural mother, a view prevailing in Japan. Anonymous Indian woman, the egg donor, in our view, is not the natural mother. She has of course a right to privacy that forms part of right to life and liberty guaranteed under Article 21 of the Constitution of India. Nobody can compel her to disclose her identity. Babies born are not in a position to know who is the egg donor and they only know their surrogate mother who is real. Wife, of the biological father, who has neither donated the ova, nor conceived or delivered the babies cannot in the absence of legislation be treated as a legal mother and she can never be a natural mother. In our view, by providing ova, a woman will not become a natural mother. Life takes place not in her womb, nor she receives the sperm for fertilization. Human fertilization is the union of a human sperm and egg usually occurring in the ampulla of the urine tube. Process involves development of an embryo. Process in this case followed is In Vitro Fertilization, a process by which egg cells were fertilized by sperm outside the womb in vitro. Resultantly, the only conclusion that is possible is that a gestational mother who has blood relations with the child is more deserving to be called as the natural mother. She has carried the embryo for full 10 months in her womb, nurtured the babies through the umbilical cord. Even if we assume that the egg donor is the real natural mother, even then she is an Indian national so revealed before the learned Single Judge, we are told. Both the egg donor as well as the gestational surrogate are Indian nationals, and hence the babies are born to an Indian national.

17. The Registrar, Birth and Deaths functioning under the Registration of Births and Deaths Act, 1969 has already issued certificate of birth to the children stating that they are born within the local area of Anand Nagar Palika, and showing mother’s name as Marthaben Immanuel Khristi and father’s name as the petitioner. Be that as it may, for the purpose of issuance of the Birth Certificate. Factum of birth of the babies has been established and that too in India to an Indian mother, whether to a gestational surrogate or donor of an ova. In the application for Passport, we have already indicated that petitioner has shown  Khristi Marthaben Immanuel as mother gestational surrogate who is admittedly an Indian national. Egg donor is also reported to be an Indian woman, of course her identity is not disclosed. Either way the mother of the babies is an Indian national. Petitioner, it is true, has not married Khristi Marthaben Immanuel, surrogate mother of the children or the egg donor. Children are born not out of a subsisting marriage. Even if the children are described as illegitimate children, even then they are born in this country to an Indian national and hence, they are entitled to get Citizenship by birth as per Section 3(1)(c)(ii) of the Citizenship Act, 1955, since one of their parent is an Indian citizen. Relevant portion of Sec.3 is extracted hereunder for easy reference.

3. Citizenship by birth   (1) Except as provided in sub-section (2), every person born in India, —

(a) …….. ……

(b) …….

(c) on or after the commencement of the

Citizenship (Amendment) Act, 2003, where —

(i) ……

(ii) one of whose parents is a citizen of India and the other

is not an illegal migrant at the time of his birth,

shall be a citizen of India by birth.

Section 3 uses the expression  every person born and the emphasis is on the expressions ‘person’ and ‘born’. ‘Person’ means a natural person. In Webster V. Reproduction Health Services etc.__ (1989) 492 U.S 490, the Court held the word ‘personal’ within 14th Amendment means a human being after birth and not a foetus. Black’s Legal Dictionary, Sixth Edition defines the word ‘born’ as an act of being delivered or expelled from mother’s body whether or not placenta has been separated or cord cut. Both the babies in this case are persons born in India, indisputedly one of their parents is an Indian citizen, a surrogate mother. The two babies have therefore satisfied the ingredients of Section 3(1)(c)(ii) and hence they are Indian citizens by birth. Passport to travel abroad therefore, cannot be denied to those babies, who are Indian citizens, which would otherwise be violative of Article 21 of the Constitution of India. Section 6 of the Passport Act refers to the grounds for refusal of Passport. Section 6 (2)(a) says that Passport can be denied if the applicant is not a citizen of India. In the instant case, we have already found that two babies born to the surrogate mother are Indian citizens by birth and hence entitled to get Passports.

18. Passport Authorities are willing to issue a certificate of identity under Section 4(2)(b) of the Passports Act, which is issued only for the purpose of establishing the identity of a person. In the instant case, the identity of the two babies has already been established, they are born in this country to a surrogate mother, an Indian national, and hence citizens of India within the meaning of Section 3(1)(c)(ii) of the Citizenship Act.

19. A comprehensive legislation dealing with all these issues is very imminent to meet the present situation created by the reproductive science and technology which have no clear answers in the existing legal system in this country. Views expressed by us, we hope, in the present fact settings, will pave way for a sound and secure legislation to deal with a situation created by the reproductive science and technology. Legislature has to address lot of issues like rights of the children born out of the surrogate mother, legal, moral, ethical, Rights, duties and obligations of the donor, gestational surrogate and host of other issues.

20. Further, under the Indian Evidence Act, no presumption can be drawn that child born out of a surrogate mother, is the legitimate child of the commissioning parents, so as to have a legal right to parental support, inheritance and other privileges of a child born to a couple through their sexual intercourse. The only remedy is a proper Legislation drawing such a presumption including adoption. Further the question as to whether the babies born out of a surrogate mother have any right of residence in or citizenship by birth or mere State orphanage and whether they acquire only the nationality or the biological father has to be addressed by the legislature.

21. Indian Council of Medical Research (ICMR) has issued certain guidelines on surrogacy and Assisted Reproductive Technology (ART) in 2005. The new Bill ART (Regulation) Bill and Rules, 2008 is yet to become law, and there is extreme urgency to push through the legislation answering all these issues.

22. We, in the present legal frame-work, have no other go but to hold that the babies born in India to the gestational surrogate are citizens of this country and therefore, entitled to get the Passports and therefore direct the Passport Authorities to release the Passports withdrawn from them forthwith.

23. Special Civil Application is accordingly allowed. Appeal and the Civil Application stand disposed of accordingly. Interim orders stand vacated.

(K.S. Radhakrishnan, C.J.)

(Anant S Dave, J.)


Learned counsel appearing for the Union of India sought for stay of the judgment. Request is rejected.

(K.S. Radhakrishnan, C.J.)

(Anant S Dave, J.)


Indian Surrogacy Law Centre has released its review of the 228th Law Commission of India Report on Surrogacy. Original text of the review is available at 228th law commission report-comments.


On 5th of August, 2009 the Law Commission of India submitted the 228th Law Commission Report titled “Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy” to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India. The report expressed the view of the Law Commission on the Indian Counsel for Medical Research Guidelines 2005 on Surrogacy, the draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008 and the Seminar on “Surrogacy – Bane or Boon”. The report had also made recommendations to be kept in mind while legislating on surrogacy.

Review of the 228th Law Commission Report by Indian Surrogacy Law Centre

1] The Law Commission of India Report on surrogacy has taken into consideration several areas of Surrogacy in India, the prevailing scenario of surrogacy and also recommended standards for the same. The report has regarded that the laws related to surrogacy are highly complex and advised a pragmatic approach while legislating on this issue.

2] The report considered Indian and foreign decisions on surrogacy (also constitution right to procreate) including the Baby M case and the Baby Manji’s Case for reviewing the position on the constitutional validity of surrogacy in India.

3] Though the report has highlighted several issues on surrogacy, the report has failed to move in deeper into the aspects of surrogacy. The report is highly superficial and fell far below the expectations for providing recommendations taking into consideration the Indian situation.

4] The report has failed to notice many glowing issues which require immediate attention. The Report lacks clarity in thought and has found it best to limit itself to what is happening today, instead of suggesting a better tomorrow. The report has not considered the prevailing socio-economic situation in India, which has lead to present boom in Surrogacy. The report has not also been able to identify the future of surrogacy in India, and has not made recommendations for regulating the practice of surrogacy.

5] Paragraph 1.7 of the Report is extracted hereunder:

“1.7 In commercial surrogacy agreements, the surrogate mother enters into an agreement with the commissioning couple or a single parent to bear the burden of pregnancy. In return of her agreeing to carry the term of the pregnancy, she is paid by the commissioning agent for that. The usual fee is around $25,000 to $30,000 in India which is around 1/3rd of that in developed countries like the USA. This has made India a favourable destination for foreign couples who look for a cost-effective treatment for infertility and a whole branch of medical tourism has flourished on the surrogate practice. ART industry is now a 25,000 crore rupee pot of gold. Anand, a small town in Gujarat, has acquired a distinct reputation as a place for outsourcing commercial surrogacy. It seems that wombs in India are on rent which translates into babies for foreigners and dollars for Indian surrogate mothers.”

A specific mention has been made regarding “Commissioning Agent” in the above extract from the report. In the immediate sentence preceding this sentence, mention has been made about the “Commissioning Couple”. The meaning of “Commissioning Agent” is nowhere explained in the report and causes great confusion as to who is making the payment to the surrogate mother. The mention of ‘commissioning agent’ assumes importance for the reason it signifies the existence of an agent communicating in-between the surrogate mother and the intended parent. This practice is not appreciated internationally and is not in line with the Indian Council for Medical Research Guidelines, 2005.

6] In the same paragraph, i.e., in 1.7 of the Report, it has been stated that the usual fee for surrogacy in India is around $ 25000 to $ 30000. This again lacks clarity for the reason that the sentence preceding that was dealing with surrogate mothers. This fee referred to in the Report is the total cost which the Intended Parents would be required to spend on surrogacy in India, and not just for the Surrogate mother.

7] Again, in paragraph 1.7 of the Law Commission Report, specific observation has been made that the Assistant Reproductive Technology Industry is worth about Rs.25 crores. This figure is not based on any official report and lacks accuracy.

8] Paragraphs 1.9, 1.10 and 1.11 has been extracted hereunder:

“1.9       As far as the legality of the concept ofsurrogacy is concerned it would be worthwhile to mention that Article 16.1 of the Universal Declaration of Human Rights 1948 says, inter alia, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family”. The Judiciary in India too has recognized the reproductive right of humans as a basic right. For instance, in B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v.  State of Oklahoma, which characterised the right to reproduce as “one of the basic civil rights of man”. Even in Javed v. State of Haryana, though the Supreme Court upheld the two living children norm to debar a person from contesting a Panchayati Raj election it refrained from stating that the right to procreation is not a basic human right.

1.10    Now, if reproductive right gets constitutional protection, surrogacy which allows an infertile couple to exercise that right also gets the same constitutional protection. However, jurisdictions in various countries have held different views regarding the legalization of surrogacy. In England, surrogacy arrangements are legal and the Surrogacy Arrangements Act 1985 prohibits advertising and other aspects of commercial surrogacy. In the US also, commercial surrogacy seems prohibited in many states. In the famous Baby M case, the New Jersey Supreme Court, though allowed custody to commissioning parents in the “best interest of the child”, came to the conclusion that surrogacy contract is against public policy. It must be noted that in the US, surrogacy laws are different in different states.

1.11 If the 1988 Baby M case in the US forced many to put on legal thinking caps, then that year also saw Australia battling with societal eruptions over the Kirkman sisters’ case in Victoria. Linda Kirkman agreed to gestate the genetic child of her older sister Maggie.  The baby girl, called Alice, was handed over to Maggie and her husband at birth. This sparked much community and legal debate and soon Australian states attempted to settle the legal complications in surrogacy. Now in Australia, commercial surrogacy is illegal, contracts in relation to surrogacy arrangement unenforceable and any payment for soliciting a surrogacy arrangement is illegal.”

In paragraph 1.10 to of the Report, the Law Commission of India has rightly pointed out that the right to procreate is held to be a constitutional right by the Supreme Court and High Courts in India. But the Law Commission has gone to the extent of assuming “if reproductive right gets constitutional protection, surrogacy which allows an infertile couple to exercise that right also gets the same constitutional protection.” The Law Commission has failed to realize that the issue involved in the case of surrogacy is much larger than the ambit of these decisions as these decisions have not considered the rights of a third party i.e. “surrogate mother”. The right to procreation is the constitutional right, but this right does not include the role of a third party, the surrogate mother. Therefore, a simple analogy of the sort done by the Law Commission Report cannot be extended to a third party reproduction without considering its own pros and cons.

9] The report has failed to note that the problems surrounding Surrogacy in India are not limited to the domestic issues, but goes to an international level. The proposed legislation on surrogacy is required to be addressing the international requirements of surrogacy, and not only domestic. India has made a mark in the recent times for surrogacy in the international level, and is required to address this need of its new found importance. A legislation on surrogacy which does not cater to the needs of the international arena is merely incomplete.

10] The proposed legislation on surrogacy is required to take into consideration the surrogacy arrangement models followed world-over and has to choose the right combination of the different models, so as to serve Indian scenario. Though the world’s second IVF baby was born in India in 1978, Indian Courts did not have many opportunities to deal the complex questions of law about paternity and nationality. The Indian Law on surrogacy is yet on a pre-mature stage, and not many issues have transgressed into the form of litigation except for one or two. This scene therefore gives the Indian law makers an opportunity to learn from the experience world-over through the decision of the courts abroad. The problems that arise over surrogacy are admittedly very complex, and therefore a world-class legislation competent to handle every such issue is the need of the hour.

11] The proposed legislation on surrogacy is required to address the issues that the Intended Parents, both from India and abroad, who are taking up surrogacy in India. The draft should cater the needs of the intended parents on the lines of nationality, paternity of the child etc.

12] The report has failed to make any mention on the rights of the Intended Parents in a surrogacy arrangement. The present situation demands that the drafters have in mind not only the domestic intended parents, but also intended parents world over. Intended parents are bothered to a great extent about their rights before they enter into a surrogacy arrangement. The intended parents opt for surrogacy only as a last resort, with great longing for a child. This desire is what compels the intended parents choose alternative means of reproduction such as surrogacy.

13] The availability of surrogate mothers at less costly compensation is the stimulation for intended parents from abroad who choose surrogacy India. This being so, it is of utmost importance that specific measures are given for the rights of the surrogate mother.  Also, measures should be taken for protection of those rights of the surrogate mother.

14] Legal Counselling of the surrogate mother plays a very important role in the process of surrogacy as it helps surrogate mothers understand the actual process in surrogacy. It is required that the legal counselling of the surrogate mother is given by a lawyer or by a social activist, explaining to her the process of surrogacy and also her rights and liabilities. Moreover, the legal counselling is the best method to identify that the surrogate mothers are not forced into surrogacy by her family members. Therefore, it should be recommended that the surrogate mothers should attend the counselling with her relatives.

15] The Law Commission of India has failed to address the need of an international surrogacy agreement. The international surrogacy agreement is required to serve the needs of the intended parents as well as the surrogate mother, so as to protect their interest. The international surrogacy agreement should be enforceable in the Indian Courts, and should be acceptable by the embassy of the nation of the intended parents.

16] The Law Commission report has failed to highlight the need for a national database of surrogacy being done in India. Such statistics is of required to keep track of the statistics in the field of surrogacy.

17] The Law Commission had submitted the report without having done a field study of the present situation prevalent in India with regard to surrogate mothers and Assisted Reproductive Technique Hospitals. Therefore the findings of the Law Commission cannot be clearly serving the needs of today with regard to surrogacy.

18] The Part IV of the Law Commission Report is extracted hereunder:


“4.1 Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society viz. family. Non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. Active legislative intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto.

The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.”

The above paragraph from the Law Commission Report has caused undue confusion from many international intended parents and journalists, especially because of the last line stating that commercial surrogacy arrangements required to be prohibited. This sentence has paved way for so many doubts including whether the commercial surrogacy arrangements are going to be banned in India.

The only observation which can formed from the above is that the Law Commission intends to recommend a system which is a line between the one followed in the United States and the United Kingdom. The Law Commission recommends that the birth certificate shall be in the name of Intended Parents, and it also recommends that the commercial surrogacy needs to be prohibited. This means that the only those reasonable expenses for the surrogate mother to bear the child shall be given by the intended parents. However, this issue is largely unclear and requires deliberation from the Law Commission of India.

19] The Law Commission has fell off from its expectations by making no recommendations regulating the medical institutions who undertake surrogacy. The absence of such recommendations was conspicuously felt.

20] The Law Commission turned blind eye to the amendments required to various other existing legislations. For example, the Indian Evidence Act, 1872 gives a conclusive presumption that it shall be presumed that the husband of woman who gives birth to the child is presumed to be the father of the child. This legislation requires amendment, so as to accept the later scientific developments.


The Law Commission of India in it 228th Report has made a feeble impact in its recommendations compared to the need of the hour. India Legislation has got a long way to go in evolving the right sort of system suiting Indian conditions for surrogacy.

I have been forced to ban myself off the blog for a few days due to a very hectic work schedule and too much travel. However, here I am back a wonderful news that’s going to bring a smile on anyone’s face who’s reading this.

The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY .” The following observations had been made by the Law Commission:

[1] Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

[2] A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the
commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

[3] A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

[4] One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

[5] Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

[6] The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

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

[8] Sex-selective surrogacy should be prohibited.

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

The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2010.

This is one of the most frequent questions I answer during my meetings with the Intended Parents. Though the answer seems quite simple, the consequence of missing the right time to sign a surrogacy contract is quite a serious problem to the whole surrogacy program. Indian Surrogacy Law Centre recommends the right time to enter into a surrogacy contract with the surrogate is when the following four aspects have been finalized,

(a) the choice over the surrogate mother

(b) the choice over the Clinic

(c) the financial element, with regard to the compensation to the surrogate

(d) The dates for commencing the procedures at the hospital has been fixed.

Once all the above factors have been determined, it is the right time for entering into a surrogacy agreement. The surrogate should have a clear understanding of the agreement and there should be also some evidence for the same.

Importance of the time factor:

The date of signing of the surrogacy contract plays an important role is assessing the mind of the parties to the contract. It is important that the surrogate enters into the contract before the taking up of the medical procedures. The reason is that the medical procedures itself is a result of the contract entered between the parties, and this order of events cannot be rearranged. There have been cases where clinics do not stress on the need for signing of an appropriate agreement with the surrogate before carrying out the procedures. However, this practice does not serve any purpose.

More importantly, the effect of not signing of a surrogacy agreement at an appropriate time has an adverse inference over the agreement. In such cases, the obvious question the Court poses to a person who relies on the agreement is as to why the agreement was not entered with the surrogate before she had taken up the medical procedures.

Therefore it is important to have the surrogacy agreement entered by the parties before proceeding with the medical procedures.

The Decision of the First Case decided by the Supreme Court on Surrogacy has been extracted hereunder:


Writ Petition (C) No. 369 of 2008

Decided On: 29.09.2008

Appellants: Baby Manji Yamada
Respondent: Union of India (UOI) and Anr.

Hon’ble Judges:
Arijit Pasayat and Mukundakam Sharma, JJ.


Arijit Pasayat, J.

1. This petition under Article 32 of the Constitution of India, 1950 (hereinafter for short ‘the Constitution’) raises some important questions.

2. Essentially challenge is to certain directions given by a Division Bench of the Rajasthan High Court relating to production/custody of a child Manji Yamada. Emiko Yamada, claiming to be grandmother of the child, has filed this petition. The Writ Petition before the Rajasthan High Court was filed by M/s. SATYA, stated to be an NG0, the opposite party No. 3 in this petition. The D.B. Habeas Corpus Writ Petition No. 7829 of 2008 was filed by M/s. SATYA wherein the Union of India through Ministry of Home Affairs, State of Rajasthan through the Principal Secretary, The Director General of Police, Government of Rajasthan and the Superintendent of Police Jaipur City (East), Jaipur were made the parties. There is no dispute about Baby Manji Yamada having been given birth by a surrogate mother. It is stated that the biological parents Dr. Yuki Yamada and Dr. Ikufumi Yamada came to India in 2007 and had chosen a surrogate mother in Anand, Gujarat and a surrogacy agreement was entered into between the biological father and biological mother on one side and the surrogate mother on the other side. It appears from some of the statements made that there were matrimonial discords between the biological parents. The child was born on 25th July, 2008. On 3rd August, 2008 the child was moved to Arya Hospital in Jaipur following a law and order situation in Gujarat and she was being provided with much needed care including being breastfed by a woman. It is stated by the petitioner that the genetic father Dr. Ifukumi Yamada had to return to Japan due to expiration of his visa. It is also stated that the Municipality at Anand has issued a Birth Certificate indicating the name of the genetic father.

3. Stand of respondent No. 3 was that there is no law governing surrogation in India and in the name of surrogation lot of irregularities are being committed. According to it, in the name of surrogacy a money making racket is being perpetuated. It is also the stand of the said respondent that the Union of India should enforce stringent laws relating to surrogacy. The present petitioner has questioned the locus standi of respondent No. 3 to file a habeas corpus petition. It is pointed out that though custody of the child was being asked for but there was not even an indication as to in whose alleged illegal custody the child was. It is stated that though the petition before the High Court was styled as a “Public Interest Litigation” there was no element of public interest involved. Learned Counsel for respondent No. 3 with reference to the counter- affidavit filed in this Court had highlighted certain aspects relating to surrogacy. The learned Solicitor General has taken exception to certain statements made in the said counter affidavit and has submitted that the petition before the High Court was not in good faith and was certainly not in public interest.

4. We need not go into the locus standi of respondent No. 3 and/or whether bonafides are involved or not. It is to be noted that the Commissions For Protection of Child Rights Act, 2005 (hereinafter for short ‘the Act’) has been enacted for the constitution of a National Commission and State Commissions for protection of child rights and children’s courts for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith or incidental thereto. Section 13 which appears in Chapter III of the Act is of considerable importance. The same reads as follows:

13. Functions of Commission.

(1) The Commission shall perform all or any of the following functions, namely:

(a) examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation;

(b) present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of those safeguards;

(c) inquire into violation of child rights and recommend initiation of proceedings in such cases;

(d) examine all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence, riots, natural disaster, domestic violence, HIV/AIDS, trafficking, maltreatment, torture and exploitation, pornography and prostitution and recommend appropriate remedial measures.

(e) look into the matters relating to children in need of special care and protection including children in distress, marginalized and disadvantaged children, children in conflict with law, juveniles, children without family and children of prisoners and recommend appropriate remedial measures;

(f) study treaties and other international instruments and undertake periodical review of existing policies, programmes and other activities on child rights and make recommendations for their effective implementation in the best interest of children;

(g) Undertake and promote research in the field of child rights;

(h) spread child rights literacy among various sections of the society and promote awareness of the safeguards available for protection of these rights through publications, the media, seminars and other available means;

(i) inspect or cause to be inspected any juvenile custodial home, or any other place of residence or institution meant for children, under the control of the Central Government or any State Government or any other authority, including any institution run by a social organisation; where children are detained or lodged for the purpose of treatment, reformation or protection and take up with these authorities for remedial action, if found necessary;

(j) inquire into complaints and take suo motu notice of matters relating to, –

(i) deprivation and violation of child rights;

(ii) non-implementation of laws providing for protection and development of children;

(iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with appropriate authorities; and

(k) such other functions as it may consider necessary for the promotion of child rights and any other matter incidental to the above functions

2) The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.

5. Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.

The word “surrogate”, from Latin “subrogare”, means “appointed to act in the place of”. The intended parent(s) is the individual or couple who intends to rear the child after its birth.

6. In “traditional surrogacy” (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh of frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra cervical insemination) which is performed at a fertility clinic. ‘

7. In “gestational surrogacy” (also know as the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is themselves unrelated to the child (e. g. because the child was conceived using egg donation, germ donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.

8. “Altruistic surrogacy” is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).

9. “Commercial surrogacy” is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms “wombs for rent”, “outsourced pregnancies” or “baby farms”.

10. Intended parents may arrange a surrogate pregnancy because a woman who intends to parent is infertile in such a way that she cannot carry a pregnancy to term. Examples include a woman who has had a hysterectomy, has a uterine malformation, has had recurrent pregnancy loss or has a healthy condition that makes it dangerous for her to be pregnant. A female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy.

11. Alternatively, the intended parent may be a single male or a male homosexual couple.

12. Surrogates may be relatives, friends, or previous strangers. Many surrogate arrangements are made through agencies that help match up intended parents with women who want to be surrogates for a fee. The agencies often help manage the complex medical and legal aspects involved. Surrogacy arrangements can also be made independently. In compensated surrogacies the amount a surrogate receives varies widely from almost nothing above expenses to over $ 30,000. Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks.

13. In the present case, if any action is to be taken that has to be taken by the Commission. It has a right to inquire into complaints and even to take suo motu notice of matters relating to, (i) deprivation and violation of child rights (ii) non-implementation of laws providing for protection and development of children and (iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with appropriate authorities.

14. It appears that till now no complaint has been made by anybody relating to the child, the petitioner in this Court.

15. We, therefore, dispose of this writ petition with a direction that if any person has any grievance, the same can be ventilated before the Commission constituted under the Act. It needs no emphasis that the Commission has to take into account various aspects necessary to be taken note of.

16. Another grievance of the petitioner is that the permission to travel so far as the child is concerned including issuance of a Passport is under consideration of the Central Government; but no orders have been passed in that regard. The other prayer in the petition is with regard to an extension of the visa of the grandmother of the child requesting for such an order.

17. Learned Solicitor General, on instructions, stated that if a comprehensive application, as required under law, is filed within a week, the same shall be disposed of expeditiously and not later than four weeks from the date of receipt of such application. If the petitioner has any grievance in relation to the order to be passed by the Central Government, such remedy, as is available in law may be availed.

18. The writ petition is accordingly disposed of without any order as to costs. All proceedings pending in any High Court relating to the matter which we have dealt with in this petition shall stand disposed of because of this order.

Thought of engaging an independent Surrogacy Lawyer usually crops up when the Commissioning parent have finalized on the clinic and are fixing the dates for taking up the procedures. They contact the clinic asking for the legal details and the clinic assures that the clinic does have a lawyer who shall take care of the interest of the parties. Few clinics also claim that there is no need for a lawyer, as there are not much legal issues in India that requires a lawyer. Being assured by these words, the commissioning parent forget the legal issues and take up the procedures unmindful of the legal complications involved and about who is going to protect their interest on arising of any legal complications. The thoughts raise again only when there is a problem between the clinic and the Intended Parent or when the procedures have been completed without a knowledge as to how to take the child to their respective nation.


A lawyer can advise or represent only one party. A surrogacy arrangement shall consist of atleast 3 parties, the intended parent, the surrogate and the clinic or the agency. It is logically and practically not possible the same lawyer would be advising more than one party to an agreement. The role of the lawyer in the that case would be that of a mere moderator than that of a solicitor.  It also has to be understood that the lawyer would not be able to make justice to any of the parties in that case.

The question which decides the need of independent legal advisor is “Which lawyer will you consult if there arises any legal complication?”


The intended parents come to India with the dream of parenthood, that they can take the surrogate baby to their home land after its birth. But is it not required that the Intended Parents have verified the legal position with regard to taking the child back to their nation?

It is true that India has got no law with regard to surrogacy, but that does not mean that India does not have a law for nationality as well. The legal complications over taking the child to the nation of the IP are many, and have to be address at the earliest time, even before taking up the procedures in India.

For Example, according to the UK Laws, the child born to an Indian Surrogate cannot be directly registered as that of the Intended Parents. There are legal issues in this case, those of paternity and that of nationality of the child. These issues have to be essentially taken care by a “Legal Screening” program by a surrogacy lawyer.


It has to be necessarily understood that surrogacy is arrangement between the parties to it, who are bound by a document called as the “surrogacy agreement”. The surrogacy agreement is the code which governs the role of the parties to the surrogacy agreement. This agreement mentions the role of the surrogate and that of the Intended Parent in proceeding towards surrogacy.

Another important element is that surrogacy agreements in India are not held valid in most of the nations as few of the issues mentioned there is banned by the law of those countries. This would aggravate the issues relating to the Nationality of the child. Therefore it is most important the agreements of an international standard, so that it can be acceptable to the nation of the Intende Parent as well.


Surrogacy Arrangement agreement is entered between the Intended Parents and the Clinic which provides the services. This agreement may also called as the “Service Provider agreement.” Remember, this is the most important agreement that has to be entered into by the parties to surrogacy. Though this agreement is not mentioned anywhere in the ICMR Guidelines, without this agreement, you service provider, the clinic or the agency, may claim that they do not have any binding factor. This agreement shall make sure that there is a proper understanding with regard to the dates and also with regard to the payment schedule.


The Intended Parents during their stay in India enter into various commitments without realizing the legal importance of the same. It is most important that the they have a lawyer by their side, who can make sure that the necessary legal precautions are made in their interest.