Marriage is a life time institution it is a social order through which a married couple wishes to bring a child into the earth through the process of reproduction. Motherhood is the state of being a mother i.e. when she gives birth to a child, it also happen when she adopts a child. When we think of a mother it mainly includes the human emotion of actions like conceiving, carrying, bearing of a child, it is her birth right and cherish the feeling of motherhood. Imagine if the womb of a woman is removed, if she is unable to conceive, or she cannot give birth to a baby. Which means she is not a woman or a mother? What if an infertile couple desire remains unfulfilled?

But a couple of centuries ago the desire of having a child by an infertile couple showed a light by adopting a child. In the western countries the adoption was a universal law, but in India the adoption was not a universal law it applies only to the Hindus. The Hindu Adoption and Maintenance Act 1956 provide some provisions in this regard. 

We live in the era of modern science and technology which has provided a new way for the infertile couple. In the era a woman can generate a life which is further grown in the womb of another woman and is nurtured and raised by a third person i.e. a new reproductive technologies like artificial insemination, donor egg transplantation, and surrogacy which has given a new hope to reproduce. 

The word ‘surrogate’ originates from the Latin word “Surrogatus” means “Substitution” or “to act in the place of”. Surrogacy is a process where a woman carries a pregnancy and gives birth to child for another woman. In other words, Surrogacy is a process where a woman carries a pregnancy and gives birth to a child for another woman [1]. The term ‘surrogate’ means someone acting as a substitute in place of another. In medical terms it means using a substitute mother in place of a natural mother. It is a method of reproduction where a woman agrees to get pregnant for giving birth to a child but not to raise  instead she has to handover the child to the contracted party. She may be a genetic mother or she may be gestational carrier of the child, she carries the pregnancy to delivery after having implanted with an embryo. According to The New Encyclopedia Britanica, Surrogacy is a practice in which a woman (surrogate mother) bears a child for a couple unable to bear or to produce children in the usual way [2]. According to the Black’s law Dictionary, surrogacy means “the process of carrying and delivering a child for another” [3].

Types of Surrogacies

Traditional Surrogacy - This is also known as complete surrogacy or straight method. In this type of surrogacy, the egg of the surrogate mother and the sperm of the commissioning husband are used and fertilized by artificial insemination, for making the child genetic. 

Gestational Surrogacy - This is also known as host method. In this type of surrogacy, the genetic mother provides the egg which is fertilized in the womb of another woman who is the surrogate mother. The embryo is created by IVF (in vitro fertilization). The surrogate mother caries the fetus and give birth to the child.  Surrogacy can also be divided in the following ways:

• Altruistic Surrogacy: In this type of surrogacy, the surrogate mother does not receive any amount of money for giving birth to a child but the expense related to the pregnancy is paid by the commissioning parent 

• Commercial Surrogacy: In this type of surrogacy, the surrogate mother is paid for giving birth to a child for the intended parent

Rights of the Surrogate Mother

A surrogate mother cannot be forced by the intended parent to enter into a surrogate contract or subjected to any restrictive condition before and after pregnancy. According to the International Commercial Surrogacy arrangement in India the physical wellbeing of the surrogate mother should be looked upon by the commissioning parent. The surrogate mother should be empowered which means she should enter into such contract on the basis of right to be informed and should also have the right to autonomy and self- determination. It is very much important to give a free and informed consent to the surrogate mother before entering into a contract as the contract may not be real for different reasons. And country like India, full information should be given before the birth of the child the indigent surrogate mother may be induced and promised with high remuneration for the performance. 

It may even be possible that the commissioning parent may insist the surrogate mother on certain unethical conditions regarding the health and other features of the child after giving the birth. So a surrogate mother should be provided with income for a year i.e. the time of pregnancy and three months after the birth of the child. The intended parent should look after the surrogate mother i.e. she must be provided with adequate food, medical treatment and hospital cost. 

Rights of the Intended Parent

According to the Indian Council of Medical Research the intended parent is considered to be the legal parent of the child and they have the right to bring up the child and the parental responsibility. The surrogate mother is not connected biologically with the child. The intended mother is considered as the legal mother of the child, and the birth certificate of the child is issued in the name of the genetic parent and the surrogate mother has to hand over all the parental rights of the child in writing. 

Rights of the Child

As per in the Indian Council of Medical Research the child has the right to know its identity not only of its commissioning parent but also regarding the surrogate mother or the genetic parent and the relationship with the child after attaining the age of 18 years. It is not important to give the information regarding the name and address of the surrogate mother. It has also been explained that it is not important for the parents to give the information regarding the surrogate mother on their own, but no attempt should be made to hide such information from the child because a situation may arise in future and it becomes important for the child to get the information regarding his birth. 

Legality of Surrogacy

Motherhood is considered as the most important goal for Indian woman. To have a child is the basic need of all. Childlessness is connected with social isolation and sometimes domestic violence. In a developing country like India childlessness has an important social, economic and psychological consequence. In India there is no uniform law of commercial surrogacy. It is important to have legal provision relating to surrogacy as the legal provisions are the set of rules which binds the people by its norms and keeps everything balanced. The legal provisions even protect the society from the danger, and it even lays down some rights for its citizens and has solution to its problem. So, it is important to have a detailed law on surrogacy to protect the child’s right, rights of the surrogate mother, rights of the intended parent. 

Indian Council of Medical Research Guidelines 2005 is the only provision regulating surrogacy these guidelines are followed by the participating parties in surrogacy. The Assisted Reproductive Technologies clinics are bound to follow the guidelines. India does not have any particular provisions regulating surrogacy it is regulated by some of the provisions of Code of Civil Procedure, Hindu Adoption and Maintenance Act, Contract Law, Constitution of India and the guiding principles of Indian Council of Medical Research. 

Code of Civil Procedure, 1908 

In India surrogacy is considered to be legitimate but there is no legal prohibition that prohibits surrogacy. To determine the legality of surrogacy arrangement, the Indian Contract Act would apply and consequently, the enforceability of any this arrangement would be explained the domain of section 9 of the Code of Civil Procedure 1908. Which explain “Court to try all civil suits unless barred? - The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” Subsequently, section can be subject of a civil suit before a civil court for adjudication of all disputes relating to the surrogacy agreement and for a declaration or injunction as to the relief prayed for [4].

Indian Contract Act 1872

According to the Indian Contract Act 1872 for a valid contract there must be an offer then there is an acceptance for that offer and then comes the lawful consideration. The Supreme Court of India has defined surrogacy as an agreement where the commissioning parent offers the surrogate mother and if she gives her consent for becoming a surrogate mother is her acceptance of the offer of the intended parent for the lawful consideration i.e. the surrogate mother will receive some amount of money from the intended parent and she promises to handover the child to the intended parent. This fulfills each and every criteria of the Indian Contract Act 1872. 

Hindu Adoption and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act, 1956 is the only legislation which regulates the adoption in India and which is applicable to Hindus only. A non- Hindu or a foreigner can become the guardian of the adopted child but cannot become the parent of the child. Section 7 of the Act states the capacity of a male Hindu to take adoption. Section 8 of the Act states capacity of a female Hindu to take adoption. Section 9 of the Act states that the person capable of giving adoption. The intended parents need to follow certain provisions of this Act as surrogacy also needs adoption after the birth of the child from the surrogate mother. 

The Constitution of India

Article 19(1) (g) states Freedom to practice any profession, or to carry on any occupation, trade or business. This Article states that each and every citizen has the right to choose any work but should not oppose to public policy as certain restrictions are laid in Article 19(6). Likewise, a woman has the right to practice any profession she may rent her womb for a period of nine months and give birth to a child for the intending parent and bring happiness in their life. It does not harm the society and the society also has nothing to do with this particular situation. 

Indian Council of Medical Research Guidelines, 2005

The Indian Council of Medical Research first time came with the guidelines for regulating the Assisted Reproductive Clinics in India in the year 2005 along with the National Academy of Medical Sciences. 

The guidelines are as follows:

• DNA test is compulsory to determine the commissioning parent i.e. the biological parent. As the child is born through surrogacy must be adopted by the genetic parent

• Surrogacy is only for those couples who are physically or medically cannot conceive a child

• The ART clinic should not involve in between the transaction of the intended parent and the surrogate mother. All the medical expenses are to be paid by the intended parent and it should be documented   

• The intended parent has the sole responsibility to find a appropriate surrogate mother and if they are not able to find they may take help from the semen bank but the ART clinic should not be involved in finding a surrogate mother

• The surrogate mother should not be more the 45 years of age. The duty of the ART clinic before accepting a woman as a surrogate mother should fulfill all the testable criteria for a successful pregnancy

• Any woman can become a surrogate mother. She may be a relative of the intended parent. She may be a known person or anyone to become a surrogate mother. But if she is a relative she must belong to the same generation as of the intended parent

• The surrogate mother must go for HIV test and which must be negative before the embryo is transferred. And she should declare that she will not use any drugs intravenously, and will not undergo any blood transfusion excepting of blood obtained from the certified blood bank, she and her husband did not have any extramarital relationship in the last six months

• No woman can become a surrogate mother more than three times in her lifetime

Surrogacy and Human Rights 

Universal Declaration of Human Rights (UDHR) provides legal protection to the individuals and if any fundamental freedom and human self- respect is encroached upon. According to the Article 2 of the UDHR “everyone is entitled to all the rights and freedom set forth in this declaration, without any discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” [5]. 

Characteristics of Human Rights are that they are recognized throughout the world and are legally protected. They even protect the individual and mainly focus on the self- respect of an individual. 

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is also known as the International Bill of Rights for Women. It was adopted by United Nation General Assembly (UNGA) in the year 1979. The convention states the discrimination against the women and provides a solution for the nation to give justice to the women against the discrimination. The Convention provides equality between men and women ensuring women’s equal access to, and equal opportunity in political and public life which includes the right to vote and to stand for election, as well as education, health and employment. States parties agree to take all appropriate measures, including legislation and temporary special measures so that women can enjoy all their human rights and fundamental freedoms. 

The Convention is the only human rights treaty which affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations. It affirms women’s rights to acquire change or retain their nationality and the nationality of their children. States parties also agree to take appropriate measures against all forms of traffic in women and exploitation of women [6].

PROVISIONS IN CEDAW FOR SURROGACY OR REPRODUCTIVE RIGHTS.

• Article 1: of CEDAW defines “discrimination against women”. Means any distinction, exclusion or restriction made on the basis of sex. It prevents women from enjoying Human Rights and Fundamental Freedom in political, economic, social, cultural, and civil rights

• Article 2: of CEDAW states the policy measures taken by the government. The government must make law and regulation for equality of men and women. There must be law and policies for prohibiting all discrimination against women. Legal protection must be given for the rights of women through competent national tribunal and other public institution. If the government laws and policies are not followed punishment should be given

• Article 3: of CEDAW states guarantee of basic human rights and freedom. Men and Women both are equal in all sphere of life. State government must make policies to take action in all field of political, social, economic and cultural to ensure that women can enjoy the human rights and freedom

• Article 4: of CEDAW states temporary special measures. Government should adopt some special measures to abolish the discrimination against the women and consider that women are equal to men. The measures adopted should continue until the aim is achieved that no discrimination should be made women are equal to men

• Article 5: of CEDAW states roles-based stereotypes. The government must modify to change the stereotyped idea of the inferiority or superiority of one sex over the other. To ensure that family educates their children for proper understanding and common responsibility of men and women in their upbringing and development

• Article 6: of CEDAW states women trafficking and prostitution. The government must take measures to end trafficking and exploitation of women for prostitution.

• Article 10: of CEDAW states equal rights and education. The government should eliminate discrimination against women and all women have a right to education which includes vocational training at all levels to studies and schools; to examinations, teaching staff, school buildings, and equipment; and opportunities to get scholarships and grants, the same as men. Women have the right to take part in sports and physical education, and to get specific information to ensure the health and well-being of families. Governments should make sure women do not drop out of school. They should also help women who have left school early to return and complete their education [7]

• Article 11: of CEDAW states employment. Women have a right to work like men. Government should make policies to eliminate discrimination against women in the field of employment. Women must have same employment opportunities as men, right to free choice of profession and employment, right to have equal remuneration, right to healthy and safe working condition. No discrimination should be made against women because as they are married, pregnant, given birth to a child or are looking after children. Women should get the same assistance from the government for retirement, unemployment, sickness and old age

• Article 12: of CEDAW states healthcare and family planning. Government should take care that no discrimination is made against women with respect to healthcare. They should get healthcare on the same terms and condition as men. They should have equal access to health care which includes family planning and pre and post-natal care 

• Article 13: of CEDAW states rural women. Rural women have a right to have adequate living condition. Government should take appropriate measures for the women in rural area who look after their families. Women in the rural area must be supported that they should take part in the contribution for the development and benefit of the rural area in the field of health care, education and proper living condition. They should have right to make their own groups and associations

• Article 14 of CEDAW states equality before law. Women should be treated as equal as men before the law no discrimination is made between men and women. Women have a right to enter into a contract, own property and choose where to live

Breaches of the Dignity of the Child

In surrogacy child is treated as the object of a contract. The child is conceived, carried and delivered according to the contract in exchange of money. The women are also treated as the object to obtain the desire end and a reproductive machine. Both the women and the child are not treated as human being they are treated as the object. Human dignity is the core of human rights protection. 

• The interest of the child- A child who is born to a surrogate mother is conceived carried and brought in this world and transferred as per the contract. Adults dispose the child as the owner as an object allowing them to satisfy their desire or earn money. This shows the interest of the adult, whether it is consistent with the respect of the child’s dignity and its interest. A surrogate child has five or six adults claiming right over the child is it the interest of the child. Parenting is the most important part of child’s identity. Maternity and Paternity are separated into three possible claims. A child born of IVF or artificial insemination with the donor, gamete donations are often anonymous. Therefore, a child is deprived of its identity. A child suffers from mental and psychological difficulties. The parents will be unable to give position to the child in their own family tree; it will be difficult to do if the sponsors are two people of the same sex. This is not the interest of the child to blur its origin and identity

• The child as an object- The sponsors pay large amount of money and they consider that they have the right to obtain a quality product. Sometimes in contract of surrogacy which gives rise to litigation, the surrogate mother changes her mind as she gets attached to the child and refuses to give to the contacting parents. In certain case the biological mother, have to give the child to the contracting parents but they were awarded with the right to visit. It may also happen that the sponsor changes their mind, the couple may be separated during the pregnancy or the child was born disabled. The child is the object

BREACHES OF THE DIGNITY OF WOMEN

The mother who carries the child in her womb is considered as an instrument to get a baby. She is considered as a means, not an end which violates her dignity as she is mother who bears the child in her womb for an amount of money. She even rents her body, or part, her womb. A woman who rents her body is the characteristics of prostitution, which hinders the respect and dignity of women. 

• Consequences of women’s health- Women who bears the child risks her health and sometimes her life. Imagine the life of the women who bears the child, and the child is for somebody else. In this situation the new born baby and the surrogate mother both have to suffer. The women have to protect her and also have to maintain distance from the child in her pregnancy which has a psychological effect on the women

• Breach of women’s right- In a commercial surrogacy, the mother who carries the child does not have any freedom of consent as she needs money to run her family. The women who carry the child or donate her egg is very carefully selected it depends on the beauty, obedience and even examining her medical history. The intended parents want to have a baby of their dreams a perfect baby. The child and the women both are treated as goods that the intended parents can choose of their choice [8]

Surrogacy and Violation of Human Rights

Violation against women means any act which leads to physical, sexual or psychological injury or suffering of women. It may also contain threats for such kind of acts, as coercion or arbitrary deprivation of liberty, whether it is public or private life. 

• Violation of right to live- The right of women to survive pregnancy with dignity is violated.  In India many women and girl die due to issues related to pregnancy. The majority of the maternal deaths is related to illness and disabilities, poverty, poor nutrition, sex determination, unhygienic living condition. The health care department fails to take care of these responsibilities [9]

• Violation of right to know- Women who carries the baby is not aware of contraception which has a direct impact on the right to decide the gap between the number of children and their right to health. Before entering into surrogate contract, a woman who is going to carry the child must be aware of all the terms and condition of the contract, her consent is very much important and she has the right to know each and every single point of the agreement [10]

• Violation of right to equality- Discrimination against the girl and the boy which is very common in this society. The practice of sex determination if they desire to have a male child and through sex determination they come to know the child is the girl they subject her to death before her birth

• Violation of right to get equal remuneration for equal work- In India it has been seen that women are paid less than men. Technological variation in reproduction and health are throwing women from the reproduction procedure. In surrogacy, the new techniques IVF are allowing doctors to use poor women. The foreigners in India have to bear very low cost in this process. The agreement between the intended parents and the surrogate mother is unfair. These foreigners exploit the Indian women by giving them low cost and taking benefit from them [11]

• Violation of right to protection of health- Malnutrition is the main cause of infertility in females. The malnutrition is excess as compare to the males. In the family the allotment of food is not proper between the girl and the boy

Human rights mean all are equal and everyone have equal right and freedom no distinction is to make on the basis of caste, creed, colour, sex, race, religion etc. Government must take appropriate measures to protect the rights and freedom of everyone. 

In a country like India if a woman who cannot bear a child, she has to suffer a social disgrace in the society. Women have to undergo psychological trauma for not being able to conceive a baby. Surrogacy has made possible for the couple to become a parent. India is becoming a booming industry as surrogacy is easily available with lower cost. The exploitation, commodification of women and children is a form of structural injustice and violation of woman bodily integrity and reproductive justice. People who are economically weak are easily targeted for this work and they are ready to do anything for their living.   The surrogate mother must get her rights of surrogacy and her health not only during pregnancy but also after giving birth to the child. 

Surrogacy reflect a stereotype thinking in the society which effect the dignity of women, the surrogate mother gives her body or her womb as an object for use, it is also considered as a prostitution service in which the body of the female is utilized which seem very offensive, humiliating and dehumanizing.

1. Adhikari, Nandita. “Law and medicine.” Central Law Publication, 2014.

2. Aramesh, K. “Iran's experience with surrogate motherhood: An Islamic view and ethical concerns.” J Med Ethics, vol. 35, no. 1, 2009, pp. 11–17.

3. Bhat, Sandeepa B. “Reflection on medical law and ethics in India.” Eastern Law House, 2016.

4. Trehan, Anil. “Surrogate motherhood in India: A conceptual and effectual analysis and recommendations of Indian surrogacy law centre.” Nyaya Deep: The Official Journal of NALSA, vol. 10, no. 4, Oct. 2009.

5. Chauhan, S. B. “Law, morality & surrogacy- with special reference to assisted reproductive technology.” Nyaya Deep, vol. 13, no. 4, Oct. 2012.

6. Azad, K. A. S. “Surrogacy in India- problems & law.” Indian Bar Review, vol. 40, no. 1, 2013.

7. “The new encyclopedia Britannica.” vol. 11, 15th ed., 2007.

8. Draft ART (Regulation) Bill 2008.

9. “Notification on surrogacy.” Ministry of Home Affairs (Foreign Division), Circular No.: 462, India, 3 Nov. 2015.

10. Bill Track: PRS India. Retrieved from https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2019.

11. Rana, Priti. “Commercial surrogacy in India: An ethical and legal perspective vis-à-vis women’s autonomy and reproductive rights.” Indian Bar Review, vol. 41, no. 4, 2014.