Introduction of Surrogacy in India:
In case of a surrogacy transaction, the primary difficulty lies in recognizing its exact nature. Some view it as an industry, some as a service or as a contract for certain purposes. The absence of uniform regulations but the presence of certain regulations which may prohibit such transactions adds to the complications of a surrogacy transaction. The centre of a surrogacy transaction is the involvement of a third party. Surrogacy in India is relatively low cost and the legal environment is favorable. In 2008, the Supreme Court of India in the Manji’s case (Japanese Baby) has held that commercial surrogacy is permitted in India with a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. At present the Surrogacy Contract between the parties and the Assisted Reproductive Technique (ART) Clinics guidelines are the guiding force. Giving due regard to the apex court directions, the Legislature has enacted ART BILL, 2008 which is still pending and is expected to come in force somewhere in the next coming year. The law commission of India has specifically reviewed the Surrogacy Law keeping in mind that in India that India is an International Surrogacy destination. The need for the, deliberation and adoption of surrogacy as a part of society in general and legal system in particular is felt by the legal fraternity.
Legally, a surrogacy arrangement has been defined by the Indian Supreme Court as an agreement 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. Often it is done with intention of entering into a contract, at times the intention of the parties can be inferred from the transaction. In common parlance, the term refers to arrangement made between the two parties under which a woman (surrogate mother) agrees to (i) to donate the egg and by artificial insemination, carry a fetus in the embryo of her own and give birth; (ii) to carry the term of pregnancy with the help of fertilized egg. In the case of surrogacy, a woman undertakes to bear a child for a childless couple and agrees to relinquish all parental rights at the birth of the child for a payment or other consideration which becomes void for its contravention of statutory enactments, since the contract involves bartering of human lives and also, infringes public policy. As per the provisions of Indian Contract Act, 1872 legal contracts can be either, General contract, or Special Contracts or Specific contracts. However, for them to be legal, it must satisfy all the requirements of a contract as laid down under the Indian Contract Act, 1872.
Therefore it can be seen that surrogacy agreements have to be drafted with great care and caution, since there are several factors surrounding surrogacy, which are sensitive, such as:
- The subject matter of the contract is a human being;
- The object of the contract is to conceive pregnancy by artificial ways of reproduction which was not yet known the society at large;
- There is a compensation or monetary consideration to be given to surrogate mother/gestational mother;
- Several ethical considerations surrounding surrogacy transaction;
- The identity and privacy of the surrogate mother;
- The rights of the parties before, during and after the contract including that of the would be surrogate child;
- Risk attached to the life/body of the surrogate mother;
- Clause with respect to the legal status of the child.
It is worthwhile to note that surrogacy transactions are being entered into despite not having legal recognition. Agreements are being made, entered into, being followed and are being executed the support of all those involved in the surrogacy transaction. There are institutions, organizations or companies, which are offering surrogacy services by ensuring and providing comprehensive surrogacy services including that of:
- Legal compliances;
- Media services and medical operations involved therein;
- Commercial, taxation and related aspects;
- Selection of or databases of Surrogate mothers willing to go for surrogacy services.
It may also be noted that some law firms in India have also started their area of practice providing surrogacy services or ensuring legal compliances with respect to surrogacy transaction. Surrogacy agreements are being drafted as a matter of legal service from some of the reputed law firms in India.
Assuming that a surrogacy contract is legal, if any of the parties to the surrogacy contract fails to perform any of the above mentioned steps, then as per the provisions of the Indian Contract Act, 1872, an action for breach of contract can be initiated. At the same time, if we were to say a surrogacy agreement can never be legal or are invalid, then despite executing a contract, parties can no longer enforce the same through the courts of law. The problem pertaining to a surrogacy agreement or a surrogacy transaction occurs when any dispute arises, either because of a clash of interests, or non-performance of any conditions or the terms of the contract. When such a dispute is brought before the court, it may not enforce the surrogacy agreement despite the fact it is between consenting parties due to the illegal nature of such a contract.