Law in Surrogacy

Abstract

Motherhood is often cited as God’s paramount blessing on a woman. However, the conception of “Surrogacy” that is, nurturing a baby in the womb, taking the pain to deliver it and voluntarily parting away from this benediction for another childless woman, giving rise to a strange relationship wherein, the latter becomes the “mother” and the former acquires the title of a “surrogate mother”, seems bizarre and debatable. This arrangement brings forth a varied range of legal complications pertaining to for instance, the rights of the surrogate mother, status of the child borne using the tool of surrogacy, issues of foreign couples renting the womb of an Indian womb, the demarcation between surrogacy and adultery, amongst others. In the absence of a well-defined and comprehensive law on Surrogacy in India, the Supreme Court steps in for rescuing the parties involved. The Honourable Court in 2008, for the first time declared surrogacy legal in the country, and also directed the Government to draft a suitable legislation in this regard in the famed Manji’s case. As a consequence, the Parliament promulgated the Assisted Reproductive Technologies (Regulation) Bill in 2010 which continues to remain pending. The obscurity in the legal scaffold thereby gives way to surrogacy contracts and Assisted Reproductive Technique Clinics guidelines which largely govern the said arena. The research paper shall first introduce the idea of surrogacy in its entirety. It will focus on the legal regime regulating surrogacy in India. This shall include an analysis of the judicial pronouncements, the 228^th Report of the Law Commission of the country and the aforementioned awaited Bill. The paper shall also discuss the rights and obligations of “surrogate mother”. The paper will conclude with the suggestive remarks.