A search for the terms ‘surrogacy’ and ‘India’ on Google would reveal that surrogacy tourism in India is on the rise. The trend is attributed to the fact that:
- the cost of a surrogacy arrangement in India is much lower than other countries;
- the low income levels of a vast majority of the population mean that it is comparatively easier to find somebody willing to act as a surrogate; and
- India does not have a legal regime governing the rights of the surrogate (a cause for major concern).
Surrogacy is not new to India. However, before Baby Manji Yamada v Union of India AIR , Indian courts had not faced a case relating to surrogacy (a quick search shows that none are reported) and it was not an oft-discussed topic. While prevalent, the various facets of surrogacy had not yet been so vigorously debated and examined against the Indian legal and social realities. The varied social facets involved made the issue a sort of Pandora’s box, which was more convenient to ignore in the short term. However, the plight of Baby Manji brought to the fore the chasm between reality and legislation on this front.
The facts of Baby Manji are not repeated here for the sake of brevity. Commissioned by a surrogate mother from Gujarat, Baby Manji was left in limbo after the divorce of the contracting Japanese couple. The desperate situation of the few days’ old Japanese baby, stuck between a surrogate mother, who was only acting under a commercial arrangement and was not keen to keep the baby, the contracting mother who was no longer interested in the baby, and the contracting father, who wanted the baby but certain provisions of the Indian law posed a hindrance, was widely reported by the media. From a legal viewpoint, there were two landmark outcomes of this case. For the first time the Supreme Court of India was required to examine issues relating to a surrogacy agreement (even though these issues did not directly relate to validity or enforceability of the surrogacy contract itself) and, subsequent to this case, the Indian Council of Medical Research (ICMR) proposed the draft Assisted Reproductive Technology (ART) (Regulation) Bill 2008.
In Baby Manji, the Supreme Court did not rule surrogacy contracts as valid under Indian law, but it did not rule against their validity either. In fact, it elaborated on the concept of surrogacy, methods of surrogacy and recognised all forms of surrogacy, including altruistic and commercial. While not really ruling on the validity or enforceability of any aspect of surrogacy contracts, the Supreme Court recognised that surrogacy arrangements existed in India for various reasons.
The ART Bill 2008 is still in its draft form. Even though there have been no cases before Indian courts on the validity and enforceability of surrogacy contracts in Indian law, a purely predictive exercise of applying the prevailing Indian laws to a hypothetical case – wherein a surrogacy contract is being repudiated by the surrogate mother – would be quite interesting from a jurisprudential viewpoint.
If such a case came before the Indian courts, the question that will probably have to be decided first is the validity of the surrogacy agreement itself, the ethical factor being whether surrogacy should be the subject of free-market exchange. This is relevant because if surrogacy is considered illegal or against public policy in Indian law, it will have no legal validity as an enforceable contract.1 As per s10 of the Indian Contract Act 1872 (the 1872 Act) all agreements are contracts if they are made with free consent, and for a lawful consideration and a lawful object. In addition, as per s23 of the 1872 Act, the consideration of an agreement may be treated as unlawful if:
‘It is of such nature that if permitted it would defeat the provisions of any law, or involves or implies, injury to the person or property of another, or the court regards it as immoral, or opposed to public policy.’
Thus, the crux of the matter rests on the validity of both surrogacy and surrogacy fees in Indian law.
The question of whether surrogacy fees should be a consideration for the contract would probably be a major issue under the 1872 Act as, according to s25, agreement without consideration will be void unless done for:
‘Natural love and affection between the parties standing in near relation to each other.’ Or: ‘Unless it is a promise to compensate wholly or in part, a person who has already voluntarily done something for the promisor, or which the promisor was legally compellable to do.’
Thus, if such agreements were to be made enforceable by law, without the qualification of consideration, such surrogacy agreements would necessarily be restricted between parties that are related to each other and there would be no question of an external surrogate who is a complete stranger to the couple. For the consideration to be in lieu of something that the person has already done for the promisor, the surrogate herself should voluntarily agree to the surrogacy agreement without prior stipulation of a consideration and later, the contracting parents on their own accord, may give the surrogate mother a token of appreciation. However, in this arrangement, whether or not anything is paid to the surrogate mother will depend completely on the discretion of the contracting parents. The surrogate mother will not be able to rescind the contract merely on account of the consideration for the contract not having been paid.
It is also important to examine the validity of a surrogacy contract in the context of other Indian laws, as s23 of the 1872 Act stipulates that consideration is unlawful if it defeats the provisions of any law. As per s17(1) of the Hindu Adoption and Maintenance Act 1956, no payment or reward can be received by any person as consideration for adoption of any person. In absence of any specific statute relating to surrogacy, if surrogacy is sought to be equated to adoption, and then be governed by the above-stated legislation, no payment could be made to the surrogate mother, either as consideration, or even as costs and expenses of pregnancy.
Some other Indian law provisions may also prove antithetical to the very basis of surrogacy arrangements. The provisions of the Hindu Minority and Guardianship Act 1956 (the 1956 Act) may prevent the contracting father from gaining legal rights to the child. Section 6 clause (b) of the 1956 act states that in the case of a Hindu minor, whether an illegitimate boy or an illegitimate unmarried girl, the mother – and after her the father – is the natural guardian. Thus, once it is proved through blood tests that the child is not related to the surrogate’s husband, it may be treated as illegitimate (for there is no law that provides for legitimacy for such children) giving the surrogate mother full legal rights, to the exclusion of the contracting father (even in cases where he is the donor of the sperm).
Moving on to a situation where a surrogacy agreement has been breached and damages are being considered by a court, the position of the contracting parents (as compared to the surrogate mother) to seek damages for breach of the contract may be very weak, as the damage suffered by the contracting parents would probably be too speculative to permit recovery, the economic value of having a child is impossible to calculate. However, if surrogacy is to be brought entirely under the purview of the 1872 Act, the surrogate mother should not be allowed to terminate the contract merely because she did not foresee that she might develop emotional attachment to the child subsequent to its birth. This can be challenged under s22 of the 1872 Act, whereby, a contract is not voidable merely because one of the parties to it was under a mistake as to a matter of fact. However, in such a situation, the surrogate mother may contend that the surrogacy agreement is voidable in consonance with the principles under s14, s19 and s19a of the 1872 Act, if the surrogate mother can prove that she agreed to the contract under undue influence or coercion, and that the agreement was not one based on free consent.2
In the event that the surrogate mother decides to repudiate the contract, it is not only logical but also ethical that the contracting father should not be forced topay child support and the surrogate mother should be held liable. However, what such a logical argument does not take into account is the welfare of the child, who may then face financial hardships that are the consequences of a decision or a contract to which they were never a party. With regard to the surrogate mother, she should be made to restitute any payments made to her by the contracting parents to prevent unjust enrichment by repudiation of the contract, in consonance with s65 of the 1872 Act, which states that no person should be allowed to receive advantage under a void agreement or under a contract that becomes void. This would also discourage opportunistic behaviour on the part of the surrogate mothers. Should the biological father desire visitation rights, as a quid pro quo, he should also be made liable to pay child support. However, where the biological father has had no pre-existing relationship with the child, it is doubtful as to whether such visitation rights should be accorded, as it would create instability in the life of the child.
Another situation to be envisaged by legislation is that where both parties terminate the contract after the child is born. In such a case the child will be left orphaned despite the fact that they should have three parents, instead of one. It is therefore important to hold the contracting parents, as strictly required, to accept the child once it is born, as they are under a contractual duty to do so. This should be held applicable even if the child is born disabled, in which case the contracting parents should be held bound to accept the child.
Even for legislations other than the 1872 Act, surrogacy agreements – if enforced under the present legal parameters – may have bizarre consequences, in terms of the rights that the child born under a surrogacy contract may have in relation to seeking maintenance. For instance, where the contracting parents or the surrogate mother is Hindu, s20(1) of the Hindu Adoption and Maintenance Act 1956 will apply, as per which a Hindu is bound, during their lifetime to maintain their illegitimate children. Thus, in this case, a suit can be brought by the child against the surrogate mother demanding maintenance from her, even in cases where she has relinquished her claim to the contracting father. On the other hand, a contracting father will have no option but to pay child support even in a case where the surrogate mother refuses to relinquish her rights to the child. Further, the most bizarre scenario would be that the husband of the surrogate mother may be compelled to provide maintenance for the child, as a consequence of the presumption that a child born during wedlock is the legitimate child of the couple, irrespective of the fact that the child has been conceived through an assisted reproductive technique.
Legalising and enforcing surrogacy contracts under the present legal parameters may have illogical consequences in terms of the rights of the parties and such contracts may be inherently impossible unless certain changes are made to legislations in force. A legislation specific to surrogacy may be more appropriate. The ART Bill 2008 seeks to resolve some of these legal anomalies.
As per the ART Bill 2008, the intended parents and surrogate mother are required to ‘enter into a surrogacy agreement which shall be legally enforceable’, and the surrogate mother is required to relinquish all parental rights over the child. The surrogate baby of a separated or divorced couple shall continue to be their legitimate child if both parties had consented to the ART Bill 2008 to have the baby and the baby is presumed to be the legitimate child of the contracting parents. The ART Bill 2008, in addition to the reimbursement of expenses associated with the pregnancy, also contemplates financial compensation for surrogate mothers, the amount of which is left to the discretion of the contracting parties. Also, a foreigner or a non-resident Indian couple is required to appoint a local guardian who is to be legally responsible for the care of the surrogate mother during and after pregnancy, or until the baby is delivered to the commissioning parents or the local guardian.
To what extent the provisions of the ART Bill 2008 actually and effectually address the various issues in a typical surrogacy arrangement are, of course, open to discussion. But until the ART Bill 2008 becomes an act and surrogacy agreements continue to fall within the ambit of prevailing commercial laws, let us hope that the Indian courts are not faced with the dilemma of more Baby Manjis.