Surrogacy- Legal and Ethical Issues

The rising of prevalence of infertility world over has led to the advancement of Assisted Reproductive Techniques (ART). Here, surrogacy comes as an alternative to have a when the infertile woman or couple is not able to reproduce.

Surrogacy- Legal and Ethical Issues

What does surrogacy mean?

The need of surrogacy arises when the couple, an individual or the intended parents are unable to have a baby on their own either biologically or through the intention.

Surrogacy means when another woman carries and give birth to a baby for intended parents. In other words the term surrogacy can be explained as “when a woman agrees to carry a child and hands over to the intended parents after birth of the child.

Here, the intended parents are those for whom another woman carries and give birth to a baby. And surrogate mother is the woman who carries and give birth to the child for the intended parents.

What is the process? How it is done? What is Legality of surrogacy in India?

Surrogacy is the process or an arrangement where the surrogate mother bears and delivers a child for another couple or person in her womb either from her own egg or though the implantation of a fertilized egg.

There are mainly two types of Surrogacy:

  1. Gestational Surrogacy is the one in which a woman provides the egg, which is fertilized to another woman who carries the fetus and give birth to the child.
  2. Traditional Surrogacy is another way of surrogacy in which a woman provides her own egg, which is fertilized by artificial insemination and carries the fetus and gives birth to a child for another person.

Since, the Supreme Court of India in the case of Baby Majhi Yamada v. Union Of India held that the commercial surrogacy is in India as there is no law to regulate it. The biggest impact of the Baby Manji Yamada decision has been that it spurred the government of India to enact a law regulating surrogacy.

Surrogacy- Legal and Ethical Issues

Since then the surrogacy market in India has a huge amount of money at around Rs.25000 crore. The world’s second child born through IVF technology was Baby Durga in Kolkata. Since then there is a rapid growth in Assisted Reproductive Technology.

Hence, there is a need to regulate the use of this technology so that there should be minimal chances of misuse. The only law was ICMR issued in 2005.

Surrogacy can be commercial or altruistic, depending upon whether the surrogate receives financial reward for her pregnancy. However surrogacy is illegal in most of the countries like England, and many states of United States, but its legal in India, Ukraine, California. However in some countries like Australia only altruistic surrogacy is legal and in countries like Germany, Sweden, Norway and Italy doesn’t consider surrogacy agreements.

Guidelines drafted by Council of Medical Research for regulating the conduct of clinics offering surrogacy in India. This Guideline prescribed conduct and use of Assisted Reproductive Technology (ART) procedures or treatment by the fertility clinics.

Assisted Reproductive Technology (Regulation) 2010 it has been drafted by a drafting committee appointed by the Ministry of Health and Family Welfare, Government of India. This bill primarily legalizes commercial surrogacy by paying compensation in monetary terms to the surrogate mother by the Intending couple.

Conditions required for surrogacy in india

•A surrogacy agreement should be made and entered into by the couple or the individual who wish to surrogacy and the surrogate mother, which is legally enforceable.
•The intending couple must be 21 years of age to avail the ART Treatment in India, the gamete donor must be 21 years of the age to be a donor.
• The woman who act as a surrogate mother or accept to be a surrogate mother should be minimum 21 years of the age and maximum 35 years of the age, to be eligible to act as a surrogate mother legally.
• The limit for bearing a child is only 5 per surrogate mother, including her own children.
•The Bill also provides for Foreign Intending couple or non-resident Indian individual or couple, to avail ART Treatment in India.


It has been seen that people are engaging in this practice, as this market in India is legal and also a growing industry as it has total market of around 25000cr and still growing. One of the main reason for India being so popular destination for surrogacy is the lack of strict laws. Its been more than 65 years of independence and there are still no perfect laws for it and even for adopting a child.

However, this is a new technique and blessing to the infertile couple. Surrogacy being legal in India is a good step by the government for those who can’t reproduce and a financial support for the surrogate mothers. But on the other hand the laws which should regulate these techniques and clinics providing these facilities should be stringent in minimizing the misuse of the technique. The government should also keep in mind that the women should not be left alone in this money making process and should not be considered as a child bearing machine, rather proper care and respect should be offered to her.


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