Surrogacy: Ethical, Legal, and Social Perspectives

Surrogacy is a method of assisted reproduction where a woman, known as a surrogate, agrees to

carry and give birth to a child for another person or couple, who will become the child's parents
after birth. Surrogacy is an option for individuals and couples who are unable to conceive or
carry a pregnancy to term.

Types of Surrogacy

Surrogacy can be categorized into two main types: traditional surrogacy and gestational
surrogacy.

1. Traditional Surrogacy:
o Process: In traditional surrogacy, the surrogate is artificially inseminated with
sperm from the intended father or a donor. The surrogate's own egg is used,
making her the biological mother of the child.
o Implications: Since the surrogate is the biological mother, traditional surrogacy
can raise complex emotional and legal issues regarding parental rights and the
surrogate's attachment to the child.
2. Gestational Surrogacy:
o Process: In gestational surrogacy, an embryo created through in vitro fertilization
(IVF) is implanted in the surrogate's uterus. The embryo is created using the egg
and sperm of the intended parents or donors, meaning the surrogate has no genetic
relationship to the child.
o Implications: Gestational surrogacy is generally preferred for its clearer legal
framework, as the intended parents are the biological parents, reducing potential
disputes over custody.

Ethical Considerations

Surrogacy presents a range of ethical challenges, particularly concerning the rights and welfare
of all parties involved—the surrogate, the intended parents, and the child.

1. Autonomy and Consent:

o Surrogate's Rights: Ethical surrogacy arrangements require the surrogate to give
informed consent, free from coercion or exploitation. The surrogate should fully
understand the medical, emotional, and legal implications of the arrangement.
o Compensation and Exploitation: In commercial surrogacy, where the surrogate
is paid for her services, there is a concern about exploitation, particularly of
women from economically disadvantaged backgrounds. Critics argue that
surrogacy could commodify women's bodies, turning reproduction into a
commercial transaction.
2. Child's Rights and Welfare:
o Identity and Well-being: Ethical considerations also focus on the child's rights to
know their origins and the potential psychological impact of surrogacy. Some
 argue that surrogacy could lead to issues of identity and attachment, especially if
the child learns they were born through a surrogate.
o Legal Parentage: Establishing the legal parentage of the child is a critical
concern in surrogacy arrangements. It is essential to ensure that the child has clear
and secure legal ties to the intended parents, minimizing the risk of custody
disputes.
3. Impact on the Surrogate:
o Emotional and Psychological Effects: Surrogates may experience complex
emotional reactions during and after the pregnancy, including attachment to the
baby and feelings of loss after the child is handed over to the intended parents.
o Health Risks: Pregnancy and childbirth carry inherent health risks, and
surrogates should be provided with adequate medical care and support throughout
the process.

Legal Status of Surrogacy

The legal status of surrogacy varies widely around the world, reflecting differing cultural,
ethical, and religious views on the practice.

1. Countries Where Surrogacy is Legal and Regulated:

o Permissive Frameworks: In some countries, such as the United States (in certain
states), Canada, and the United Kingdom, surrogacy is legal and regulated. These
regulations typically include safeguards to protect the rights of all parties
involved, including the surrogate, the intended parents, and the child.
o Contracts and Parental Rights: Legal frameworks often require surrogacy
contracts that clearly outline the rights and responsibilities of the surrogate and
the intended parents. In many cases, the intended parents must go through a legal
process to establish parentage after the child's birth.
2. Countries with Restrictive or Prohibited Surrogacy Laws:
o Ban on Commercial Surrogacy: In countries like India and Thailand, where
commercial surrogacy was once a thriving industry, laws have been enacted to
ban or heavily restrict the practice due to concerns about exploitation and the
commodification of women's bodies.
o Prohibition: Some countries, such as France and Germany, prohibit all forms of
surrogacy, viewing it as ethically unacceptable regardless of the circumstances.
3. Legal Challenges and Cross-Border Surrogacy:
o International Surrogacy: In some cases, intended parents travel to countries
where surrogacy is legal, leading to complex legal challenges when they return to
their home country. Issues can arise regarding the recognition of parentage,
citizenship, and the legality of the surrogacy arrangement.
o Disputes and Enforcement: Legal disputes can occur if the surrogate refuses to
relinquish the child or if the intended parents refuse to take custody. Such cases
highlight the importance of clear and enforceable legal agreements.

Social Implications of Surrogacy

Surrogacy has broad social implications, influencing family dynamics, societal views on
reproduction, and gender roles.

1. Family Structure and Dynamics:

o Non-traditional Families: Surrogacy allows for the creation of families in
diverse circumstances, including for same-sex couples, single parents, and
couples facing infertility. This challenges traditional notions of family structure
and expands the understanding of what constitutes a family.
o Cultural and Religious Attitudes: Surrogacy may conflict with cultural and
religious beliefs about family, motherhood, and the natural process of childbirth.
In some cultures, the idea of a child being born to one woman and raised by
another can be difficult to accept.
2. Gender and Reproductive Rights:
o Empowerment and Choice: Proponents of surrogacy argue that it empowers
women by giving them reproductive choices, both as surrogates and as intended
mothers. It can also provide financial opportunities for surrogates who choose this
path willingly.
o Feminist Critiques: Some feminist perspectives critique surrogacy as reinforcing
patriarchal norms by commodifying women's reproductive labor and potentially
exploiting economically vulnerable women.
3. Public Perception and Policy:
o Social Acceptance: The social acceptance of surrogacy varies widely, with some
viewing it as a positive development in reproductive technology and others seeing
it as ethically problematic.
o Policy Development: Public policy on surrogacy is evolving, with ongoing
debates about how best to regulate the practice to protect the rights and welfare of
all parties involved.

Conclusion

Surrogacy is a complex and multifaceted practice that raises significant ethical, legal, and social
questions. While it offers a valuable option for individuals and couples who cannot conceive
naturally, it also poses challenges related to autonomy, exploitation, and the welfare of the child.
As reproductive technologies continue to advance, society will need to carefully consider these
issues and develop legal and ethical frameworks that balance the rights and responsibilities of
surrogates, intended parents, and the children born through surrogacy. The ongoing debates and
varying legal approaches around the world highlight the need for thoughtful regulation and a
nuanced understanding of the implications of surrogacy in contemporary society.
Surrogacy in India has been a topic of significant legal, ethical, and social debate, especially due
to its past status as a global hub for commercial surrogacy. Several high-profile surrogacy cases
have highlighted the complexities and challenges associated with the practice in India. Here are
some key cases and developments:

1. Baby Manji Yamada vs. Union of India (2008)

 Background: This case involved a Japanese couple who entered into a surrogacy
agreement with an Indian surrogate mother in Gujarat. However, during the pregnancy,
the couple divorced, and the intended mother no longer wanted custody of the child. The
intended father, Mr. Yamada, wished to take custody of the baby, named Manji, but faced
legal hurdles because Indian law at the time did not recognize surrogacy contracts.
 Legal Issues: The case raised questions about the legal status of the child, the rights of
the surrogate mother, and the legality of international surrogacy arrangements. The
Supreme Court of India eventually granted custody to the grandmother, allowing Baby
Manji to leave India and live with her family in Japan.
 Impact: This case highlighted the need for clear surrogacy regulations in India,
especially concerning the rights of all parties involved and the legal status of children
born through surrogacy.

2. Balaz Twins Case (2010)

 Background: A German couple, Jan Balaz and his wife, used an Indian surrogate to have
twins. However, when they tried to take the twins back to Germany, they encountered
legal difficulties. The German authorities did not recognize the surrogacy agreement, and
the children were not granted German citizenship. The twins were also denied Indian
citizenship because Indian law does not allow citizenship by birth for children born to
foreign parents via surrogacy.
 Legal Issues: This case emphasized the complexities of cross-border surrogacy,
particularly regarding citizenship and legal parentage. The children were eventually
granted Indian passports under the orders of the Supreme Court of India, but the case
underscored the need for international agreements on surrogacy.
 Impact: The Balaz Twins case contributed to the growing calls for regulatory reform in
India's surrogacy industry and highlighted the potential pitfalls of international surrogacy
arrangements.

3. Baby M (2013)

 Background: An Australian couple commissioned a surrogacy in India. Upon the birth

of twins, a boy and a girl, the couple chose to take only the boy back to Australia, leaving
the girl behind. The case raised serious ethical concerns about the treatment of children
born through surrogacy and the rights of surrogate mothers and children.
 Legal and Ethical Issues: This case sparked a debate on the commodification of children
and the potential for gender-based discrimination in surrogacy. It also raised questions
about the responsibilities of intended parents toward all children born through surrogacy.
  Impact: The Baby M case further fueled discussions on the ethical aspects of surrogacy
and added to the momentum for stricter regulations, leading to more significant scrutiny
of international surrogacy arrangements in India.

4. The Surrogacy (Regulation) Bill, 2016 and 2019

 Background: Following the controversies and legal challenges associated with surrogacy
in India, the Indian government introduced The Surrogacy (Regulation) Bill. The 2016
and 2019 versions of the bill aimed to regulate surrogacy practices in India more strictly.
 Key Provisions:
o Ban on Commercial Surrogacy: The bill proposed banning commercial
surrogacy and allowing only altruistic surrogacy, where no monetary
compensation is provided except for medical expenses.
o Eligibility Criteria: The bill restricted surrogacy to Indian couples who have
been married for at least five years and are unable to conceive naturally. It also
excluded single parents, same-sex couples, and foreigners from using surrogacy
services in India.
o Surrogate’s Rights: The bill included provisions to protect the rights of surrogate
mothers, including mandatory insurance coverage.
 Impact: The bill faced both support and criticism. Supporters argued it would prevent
exploitation and protect the rights of women and children, while critics claimed it
restricted reproductive rights and could push surrogacy underground.

5. The Surrogacy (Regulation) Act, 2021

 Background: After years of debate, the Surrogacy (Regulation) Act, 2021 was enacted to
regulate surrogacy in India comprehensively. It built on previous attempts to address the
ethical, legal, and social challenges posed by surrogacy.
 Key Provisions:
o Altruistic Surrogacy Only: The act prohibits commercial surrogacy, allowing
only altruistic surrogacy where the surrogate is not paid beyond covering her
medical expenses.
o Eligibility: The act specifies strict criteria for who can become intended parents
and who can serve as a surrogate, aiming to protect both parties.
o National and State Surrogacy Boards: The act established regulatory bodies to
oversee surrogacy practices and ensure compliance with the law.
 Impact: The act represents a significant shift in India’s approach to surrogacy, aiming to
protect women and children while addressing the legal complexities of surrogacy
arrangements. However, it has also sparked debate about the accessibility of surrogacy
for those in need and the potential unintended consequences of the legislation.

Conclusion

India's experience with surrogacy has been marked by both high-profile cases and significant
legal developments. The country’s transition from being a global surrogacy hub to implementing
strict regulations reflects the complex ethical, legal, and social issues surrounding surrogacy.
These cases have been instrumental in shaping India’s surrogacy laws, which now aim to balance
the rights and welfare of surrogates, intended parents, and children born through surrogacy while
addressing concerns about exploitation and commercialization.

The surrogacy of Indian actress Nayanthara and her husband, filmmaker Vignesh Shivan,
became a topic of significant public discussion and media coverage in 2022. Here’s an overview
of the case:

Background

 Nayanthara and Vignesh Shivan: Nayanthara, a prominent South Indian actress, and
Vignesh Shivan, a well-known filmmaker, got married in June 2022. In October 2022,
the couple announced the birth of their twin boys, Ulagam and Uyir, through surrogacy.

Controversy

 Surrogacy in India: At the time of the twins' birth, India had already implemented strict
regulations governing surrogacy. The Surrogacy (Regulation) Act, 2021, allowed only
altruistic surrogacy for married couples and banned commercial surrogacy. The law also
mandated that the surrogate mother should be a close relative of the intended parents, and
the surrogacy agreement should comply with strict legal and medical criteria.
 Public and Media Scrutiny: The announcement of the birth of Nayanthara and Vignesh
Shivan's twins via surrogacy led to public scrutiny and media speculation about whether
the couple had complied with the legal requirements. Questions were raised about the
timing of the surrogacy process, especially since the couple had married only a few
months before the birth of the twins. The media speculated whether the couple had
initiated the surrogacy process before their marriage, which would have been a violation
of the law.

Government Involvement

 Tamil Nadu Health Department Investigation: Following the public interest in the
case, the Tamil Nadu Health Department initiated an investigation to determine whether
the couple had followed the legal protocols for surrogacy. The investigation aimed to
verify whether the surrogacy process was carried out legally and if the surrogate mother
met the criteria set by the Surrogacy (Regulation) Act, 2021.

Outcome

 Statement by Vignesh Shivan: Vignesh Shivan responded to the controversy by stating

that the surrogacy process had been initiated long before the new regulations were
enforced, and that all legal procedures had been followed. He also mentioned that the
surrogate mother was a close relative, as required by law.
 Closure of the Investigation: The Tamil Nadu Health Department eventually closed the
investigation, and no legal action was taken against the couple. It was determined that the
surrogacy process had adhered to the legal requirements in place at the time of initiation.
Impact

 Discussion on Surrogacy Laws: The case brought attention to India’s surrogacy laws
and sparked discussions about the need for clear communication and understanding of the
legal requirements for surrogacy. It also highlighted the challenges faced by high-profile
individuals who opt for surrogacy under public scrutiny.
 Awareness of Legal Regulations: The controversy underscored the importance of
awareness regarding surrogacy regulations among the public, particularly for celebrities
whose personal lives often come under intense scrutiny.

Conclusion

The surrogacy case involving Nayanthara and Vignesh Shivan was resolved without legal
repercussions, but it served as a reminder of the complexities surrounding surrogacy in India,
especially in light of evolving laws. The case also illustrated the media's role in shaping public
perceptions and the importance of following legal protocols in assisted reproductive
technologies.