1

1. Introduction

Surrogacy refers to the process through which a woman intentionally becomes pregnant
with a baby that she does not intend to keep.
1
Rather, she is carrying the baby for its intended
parent or parents, usually because the parent is unable to do so without her.
2
In traditional
surrogacy, the surrogate contributes her own egg, which is artificially inseminated with the
donors sperm.
3
In gestational surrogacy, a fertilized egg is implanted in the surrogate.
4

Surrogacy may be altruistic, in which the surrogate is not paid for her labor,
5
or commercial, in
which she is.
6
Surrogacy may also use donor sperm, in which case the intended parents have no
biological relationship to the baby or babies.
7
There may be multiple surrogates, fathers,
mothers, donors, and babies. It can get very complicated. Surrogacy exposes parenthood, not as
a biological fact, but as a legally and socially constructed status with responsibilities and
obligations as well as benefits.
As set out in a recent report by the Permanent Bureau at the Hague Conference on Private
International Law, commercial surrogacy has been banned in many nation states.
8
In a minority
of states, it is allowed and regulated, and in some states, it is completely unregulated. As the
Hague Report notes, this has produced a booming business in transnational surrogacy.
9
In India
alone, reproductive tourism is a $400 to $500 million per year business.
10




1
. In the Matter of Baby M, 537 N.J. 396, 410 (1988).
2
. Id.
3
. Id.
4
. JANET L. DOLGIN & LOIS L. SHEPHERD, BIOETHICS AND THE LAW 69 (2nd ed. 2009).
5.
An altruistic surrogate may be the sister of an intended parent who would otherwise be unable to have a
biologically related child. See, e.g., DOLGIN & SHEPHERD, supra note 4, at 172.
6.
MAGDALINA GUGUCHEVA, SURROGACY IN AMERICA 3 (Council for Responsible Genetics 2010), available
at http://www.councilforresponsiblegenetics.org/pageDocuments/KAEVEJ0A1M.pdf (last visited Mar. 13, 2014).
7.
For a detailed account of some of the major procedures available, see Lisa C. Ikemoto, Reproductive
Tourism: Equality Concerns in the Global Market for Fertility Services, 27 LAW & INEQ. 277, 283 (2009).
8
. Surrogacy has been banned in much of Europe, for example, usually on the ground that it commodifies
women. See Arlie Hochschild, Childbirth at the Global Crossroads, 20 AMERICAN PROSPECT, Sept. 19, 2009, at 25,
27 available at http://prospect.org/article/childbirth-global-crossroads-0 (last visited Mar. 13, 2014.)
9
.

Hague Conf. on Private Intl Law, at 6.
10.
Kimberly D. Krawiec, Altruism and Intermediation in the Market for Babies, 66 WASH. & LEE L. REV. 203,
225 (2009).

2

RESEARCH METHODOLOGY

Statement of problem

The concept of Surrogacy is one surrounded with Controversies. Is it ethically right? Is it morally
right? Can a woman rightfully rent its womb? If so, then in what capacity? What repercussions
does it have on the society and the women? The right to rent the womb is surrounded with
innumerable questions that need to be answered.

Rationale

The rationale of this research is to look into the correctness of the concept of renting the womb.
Surrogacy is a very volatile topic that touches a lot of religious, legal, ethical and emotional
nerves. This study is being conducted to give a cumulative view on surrogacy after taking into
account all the various perspectives, legal and social, as well as all the issues and concerns that
surround Surrogacy.

Objectives

To understand the concept of Surrogacy or renting of a womb.
To study the International Legal Framework catering to it.
To analyze the various jurisprudential issues related to it.
To examine the Judicial view over the matter of Surrogacy.

Review of Literature
Surrogate Motherhood and the Politics of Reproduction by Susan Markens
The book is about the social construction of surrogacy in the United States. It looks at the
debates surrounding two bills on surrogacy in 1992, one in California and one in New
York, and at the way the feminist lobby and other factors shaped two very different
outcomes. In New York surrogacy was eventually outlawed, while in California it is
leniently practiced.

3


Surrogate Motherhood: International Perspectives by Shelley Day Sclater
This edited collection takes an interdisciplinary approach to the subject of surrogacy,
including perspectives from law, psychology, anthropology and social work. The case
studies draw from the practice of surrogacy in the UK, New Zealand, Israel and the
United States.

Katherine B. Lieber, Selling the Womb: Can the Feminist Critique of Surrogacy Be
Answered?
The research paper published in the Indiana Law Journal discusses the issues related to
Surrogacy from the perspective of the femenists.

Barbara Stark, Transnational Surrogacy and International Human Rights Law.
This research paper discusses the matters related to surrogacy from the International Law
point of view and studies the legal framework under International Human Rights law that
caters to these concerns.


Sources of Data
This research is a doctrinal research and required research from primary sources like various
statutes and secondary sources like books, articles and online sources.

Nature of Study
This is a doctrinal research and primarily analytical and descriptive.





2. Surrogacy and International Law

4

International human rights law provides some useful guidelines, especially three major
human rights treaties:
1) The International Covenant on Economic, Social and Cultural Rights;
11

2) The Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW);
12
and
3) The Convention on the Rights of the Child (CRC)
13
.
While none of the treaties explicitly address surrogacy, they each address rights crucial in
this context, including the right to health,
14
the right to support,
15
the right to know ones
origins,
16
and the right to a family.
17
The argument here is that, at the very least, where
surrogacy is allowed, the protections of well-established human rights norms should be assured.
In some cases, this may be accomplished through regulations
18
or contractual provisions, such as
the assurance for the gestational mother of free pre-natal care. In other cases, this may be more
difficult, such as treatment for as yet unknown conditions that may result from the hormonal
treatments necessary for surrogacy. If, for any reason, such assurances are impossible, surrogacy
should be barred as a violation of human rights.
Because there is no human right to a child, even those who can only have a genetically-
related child with the help of a surrogate, including single gay men and gay couples, have no
basis for a claim. Once a child has been born, howeverassuming the child is not the result of a
coerced pregnancy or a similarly egregious violation of human rightsa growing international
jurisprudence supports the right of that childs gay father, or fathers, to raise her.
19


11.
G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316, at 49 (Jan. 3, 1976), available
at http://www1.umn.edu/humanrts/instree/b2esc.htm (last visited Mar. 18, 2012) [hereinafter International
Covenant].
12.
Convention on the Elimination of all Forms of Discrimination Against Women, G.A. Res 34/180, art. 1,
U.N. GAOR, Supp. No. 46, U.N. Doc. A/34/46, at 193 (Sept. 3, 1981) [hereinafter CEDAW].
13
. See generally Convention on the Rights of the Child, G.A. Res. 44/25, 61st plen. mtg., U.N. Doc.
A/Res/44/25 (Nov. 20, 1980) (entered into force Sept. 2, 1990) [hereinafter CRC].
14.
International Covenant, supra note 21, art. 12.
15
. Id. art. 10.
16
. CRC, supra note 23, art. 7.
17
. Id.
18.
Elizabeth S. Scott, Surrogacy and the Politics of Commodification, 72 LAW & CONTEMP. PROBS. 109, 146
(2009).
19
. Barbara Stark, The Womens Convention, Reproductive Rights, and the Reproduction of Gender, 18 DUKE
J. GENDER L. & POL'Y 261, 27478 (2011).

5

The usefulness of private international law to resolve disputes arising out of surrogacy is
similarly problematic. Fundamental considerations of judicial comity, in which the courts of one
state defer to the judgment of another, are trumped by public policy in this context.
20
Thus,
notwithstanding the virtually universal concern for the children produced through surrogacy,
some states prohibiting surrogacy refuse to grant such children citizenship, because they fear that
doing so would only encourage the prohibited practice.
21
As the Permanent Bureau notes, this
plainly calls for further study.
22
While the range of applicable laws regarding surrogacy
complicatesand may even precludeharmonization, it should be noted that the legality of
surrogacy does not necessarily correspond to its prevalence in a particular state. Roughly 5% of
gestational surrogacy in vitro fertilization (IVF) procedures in the United States take place in
New York, for example, where surrogacy contracts are void.
23















3. Surrogacy and Related Issues

1. Why Surrogacy?

20
. Hague Conf. on Private Intl Law, supra note 9, at 10.
21
. Id.
22
. Id. at 22.
23
. GUGUCHEVA, supra note 6, at 15.

6


The existence of a global infertility epidemic is clearly at odds with our conception of the
world as being overpopulated. But, primarily in wealthier, developed nations, the provision of
medical reproductive services to people deemed infertile is now a billion- dollar global industry,
spurred on both by advances in technology and the emergence of a globalized economy.
Unsurprisingly, India is one of the worlds most popular providers of reproductive services,
leveraging her medical depth, advantageous currency exchange, and pervasive poverty. But
when human reproduction meets commerce, gender inequality, and wealth disparity, the
potential for ethical transgression becomes great indeed.
A person is considered infertile if he or she has been having unprotected (heterosexual)
sex for one year, with an intent to reproduce, without achieving pregnancy. Conservative
estimates hold that at least one billion women worldwide (and an unknown number of men) are
presently experiencing a degree of infertility. This estimate is stunted by the obvious fact that
you dont know if youre infertile unless youre actually trying to get pregnant. The actual
number is therefore likely to be substantially higher. The experiences of assisted reproduction
clinics suggest that a fair proportionif not a majorityof infertility issues are so-called male
factor issues, meaning that the problem is often related to sperm quality. Indeed, semen samples
collected over the past seven decades suggest a global, dramatic reduction in semen quality, such
that what is considered normal today might not even make the scale 70 years ago. This may be a
universal, global human trend, or it may be relegated to the developed world. We just dont
know yet.
Many theories have arisen for the increase in infertility in both sexes. Undeniably,
women in high income countries are waiting into their 30s and 40s to start their families, and this
is dramatically reducing their ability to become pregnant. The rise of obesity and with it,
diabetes, has certainly contributed. It is possible that soy products, mimicking human hormones,
are affecting our reproductive cycles. Some have theorized that overuse of the female
contraceptive pill has introduced hormones into the drinking water, or that some artificial
compounds, such as plastics, may decay into substances that also mimic hormones. At this point,
all of this is mere speculation. What is known is that the seeking of assisted reproductive
technologies (ARTs) is at an all-time high, and shows all the signs of accelerating.

7

The services sought include in vitro fertilization (IVFthe classic test tube babya
technology that has been with us for over 30 years now), fertility drugs, sperm and egg donation,
and maternal surrogacy. Its the latter, the act of a woman hiring out her womb to gestate an
embryo on behalf of a client, that brings with it the most ethical concerns and media attention.

2. Can a woman rent her womb?

It is impossible to identify one unified perspective on surrogacy because the society as
varied in their views as they are in their identities. Some believe that surrogacy is one of the
many reproductive choices that women should be free to make.
24
However, most writers see
surrogacy as a form of slavery or prostitution in which the surrogate is exploited through the
enticements of money, the social expectation of self-sacrifice, or both.
25

One of the main tenets of perspective is that women should not have their destiny
controlled by their biology. Historically, the social roles of women have been defined by the fact
that only women can become pregnant." In Western society, women not only bear the children,
but are also given the primary responsibility for rearing them. However, control over women's
bodies, and particularly over their reproductive capacities, has been largely in the hands of men.
This control is cited by feminist scholars as one of the main factors in the domination and
oppression of women.
For centuries women were considered little more than the property of their fathers or
husbands. Surrogacy conjures up many of the same fears of women's bodies being controlled by
men for their own ends. As one sociologist has observed, "in a system characterized by a power
imbalance, the greater the asymmetry, the greater the potential for abuse of the less powerful
group."
26
Thus, when analyzing surrogacy, the fact that contemporary U.S. society is still largely
patriarchal is relevant-most of the power is possessed by men and arguably used to further their
own needs and desires.

24
See, e.g., Lori B. Andrews, Surrogate Motherhood: The Challenge for Feminists, in SURROGATE
MOTHERHOOD 167, 168 (Larry Gostin ed., 1990) (presenting the feminist argument that reproductive
"developments added up to the freedom to be a surrogate").
25
See, e.g., Anita L. Allen, Surrogacy, Slavery, and the Ownership of Life, 13 HARv. J.L. & Pun. PoL'Y 139, 147-
48 (1990)
26
Jalna Hanner, A Womb of One's Own, in TEST-TUBE WOMAN: WHAT FUTURE FOR MOTHERHOOD?
444-45 (Rita Arditti et al. eds., 1984).

8

Many contend that once women gain control of their reproductive capacities, women
will have made an essential first step in gaining the much-needed control over their bodies and
thus their destiny. Feminists have made great gains in their fight for the right to reproductive
choice. Women have established significant reproductive rights, including the right to avoid
pregnancy through the use of contraceptives;
27
the right to become pregnant through artificial
insemination; the right to control their bodies during pregnancy by choosing, for example, not to
have Caesarean sections;" and the right to terminate their pregnancies through abortion.
28

"According to feminist arguments, these rights should not be overridden by possible symbolic
harms or speculative risks to potential children."
29

Early on in the surrogacy debate, feminist principles "provided the basis for a broadly
held position that contracts and legislation should not restrict the surrogate's control over her
body during pregnancy (such as by a requirement that the surrogate undergo amniocentesis or
abort a fetus with a genetic defect)."
30
This argument is based on the notion of gender equality.
It rests on common law principles that protect a person's bodily integrity, and contract
law principles which reject the remedy of specific performance for personal service contracts.
Currently, however, many feminists are seeking to ban surrogacy entirely. "The rationales being
used," says Lori Andrews, a noted legal scholar on reproductive technologies, "fall into three
general categories: the symbolic harm to society of allowing paid surrogacy, the potential risks to
the women of allowing paid surrogacy, and the potential risks to the potential child of allowing
paid surrogacy.
31


3. Harm to Society

The symbolic harm to society posed by surrogacy is that surrogacy may be characterized as baby
selling, a practice that demeans all of society. Some argue that surrogacy treats children as
commodities that can be bought or sold for a price.
32
Others contend that surrogacy should be
prohibited for the same reasons that the sale of organs for transplantation is prohibited. Shari

27
Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).
28
Roe v. Wade, 410 U.S. 113, 154-56 (1973).
29
Andrews, Supra note 24, at 168
30
Id. at 168-169
31
Id. at 169
32
Janet L. Dolgin, Status and Contract in Surrogate Motherhood: An Illumination of the Surrogacy Debate, 38
BuFF. L. REv. 515, 523-24 (1990).

9

O'Brien states that "the law deters people from relinquishing nonregenerative parts of themselves
for mere money.... [W]hen an organ or an infant is being marketed the seller experiences pain
and substantial risks, the buyer may pay a hefty or even an extortionate fee, and the commodity
sold is unique and irreplaceable."
O'Brien opposes the argument that the surrogate is merely being paid for her services. She
states that "[t]he services component cannot be isolated from the goods component, especially
when the idiosyncratic goods are being supplied from the very body of the seller, and must be
proffered if the deal is to be consummated. " In the commercial surrogacy context, the surrogate
usually creates a child not because she wants to be magnanimous, but because she wants to earn
the fee.
33
O'Brien contends that "[m]aking this form of trade routine would alter social
perceptions of children; babies, like automobiles, stock, and pedigreed dogs, will be viewed
quantitatively, as merchandise that can be acquired, at market or discount rates."
34

Many feminists have also likened surrogacy to prostitution, in which reproductive capacity
becomes a commodity. Andrea Dworkin, a prominent radical feminist and accomplished author,
states that all reproductive technologies "make the womb extractable from the woman as a whole
person in the same way the vagina (or sex) is now." This practice is harmful to society in that
"lain individual's integrity is affected negatively by being discussed in market rhetoric as a
fungible commodity, because such terminology ignores the unique quality and differences
between individuals.
In turning the womb into a commodity, many feminists fear that society will once again value
women primarily for their reproductive capacities. This fear is exacerbated by the strong
possibility that, because of economic coercion, surrogacy will occur for the benefit of the rich at
the expense of poorer women. Many feminists additionally fear that surrogates will be turned
into a class of breeders and that a "reproductive brothel" will emerge.
In this "breeding brothel" approach to reproduction, white women who are judged superior
would be selected as egg donors and turned into machines for producing embryos; women of
color would be used as breeders, with artificial synchronization of menstrual cycles perfecting
the assembly line. This would continue until the development of the artificial womb, after which

33
One study of 125 women who applied to be surrogate mothers revealed that the vast majority required a fee for
their participation although other motivations were present. Philip J. Parker, Motivation of Surrogate Mothers: Initial
Findings, 140 AM. J. PsYCmcATRY 117, 117 (1983).
34
Shari O'Brien, Commercial Conception: A Breeding Ground for Surrogacy, 65 N.C. L. Rzv. 127, 144, 152 (1986)
at 144.

10

the breeder would no longer be of value."

4. Harm to Women

Another major rationale against the legalization of surrogacy is the potential for actual
psychological and physical harm to women. Proponents of surrogacy argue that it is a woman's
choice to use her body any way she sees fit. Many feminists believe, however, that commercial
surrogacy will lead to the exploitation of women, not only through economic pressures but
through societal ones as well. Andrea Dworkin argues that in surrogacy, just like in prostitution,
women often are not free to choose. "In both prostitution and surrogate motherhood, .. . the state
has constructed the social, economic and political situation in which the sale of some sexual or
reproductive capacity is necessary to the survival of the woman."
35
Women are not unaffected
by the society in which they live. "One of the actual conditions that perpetuates the exploitation
of woman is her economic status." Women earn far less than men and are often relegated to what
society considers women's employment. Women who do obtain what society considers typical
male jobs are often discriminated against in salary, promotions, and benefits, and many may
suffer the added stress of sexual harassment.
36
Some of these women may be pressured into
surrogacy as a way to alleviate economic pressures at home.
37

Just as a woman's economic status may affect her decision, many feminists contend that a
woman's emotional structure and societal status affect her decision as well. Gena Corea, a recent
co-chair of the National Coalition Against Surrogacy, concludes that women have been taught to
put others' needs above their own. She states that "society places a greater premium on a
woman's childbearing role than it does on her employment prospects. Given that childbearing is
the prime function for which women are valued, it is not surprising that some women only feel
special when they are pregnant and assert that they love reproducing.
38
Some feminists argue
that it is men who perpetuate the idea that women love to be pregnant. "Men are controlling not
only what choices are open to women, but what choices women learn to want to make. Women
may have a will to be pregnant. This potential,... but we have the potential to want other things as

35
GENA COREA, MOTHER MACHINE 228 (1985).
36
Id. at 228.
37
Id. at 230
38
Id. at 232

11

well." Corea adds, is one that is kept largely unfulfilled. These pressures influence a woman's
decision by pushing her into believing that childbearing is her main function and that surrogacy
is simply a natural progression of that function.
The messages received by women and societal pressures may also be contradictory. As one,
feminist commented, "tilt is drilled into us in every conceivable way that we women have this
maternal instinct, maternal love.
We are told that if we have an abortion, we'll suffer a great psychological trauma and sense of
loss." Now, with the advent of surrogacy, "they're conditioning women to say: 'It's not my baby.
It's your baby because you paid for it.' How fast they change! They switch propaganda on us as it
suits their needs."
With surrogacy, the psychological risks women face and the potential for regret are thought by
some to be enormously high. Visions of babies being ripped from their mothers' arms are
extremely disturbing to say the least. It is assumed that many surrogates will feel the same regret
that biological mothers feel in traditional adoption cases. But, "[w]hile 75 percent of the
biological mothers who give a child up for adoption later change their minds, only around 1
percent of the surrogates have similar changes of heart."
39

Feminists generally agree that women should be able to enter into potentially risky behavior as
long as they have given their voluntary and informed consent. But a strong element of the
feminist argument against surrogacy is that women cannot give an informed consent until they
have the experience of giving birth. Some believe that hormonal changes during pregnancy
make it impossible for the surrogate to predict how she win feel about relinquishing her parental
rights at the time of birth. Other feminists argue that this is a very dangerous argument to make.
For example, psychologist Joan Einwohner points out that: women are fully capable of entering
into agreements in this area and of fulfilling the obligations of a contract. Women's hormonal
changes have been utilized too frequently over the centuries to enable male dominated society to
make decisions for them. The Victorian era allowed women no legal rights to enter into
contracts. The Victorian era relegated them to the status of dependent children. Victorian ideas
are being given renewed life in the conviction of some people that women are so overwhelmed
by their feelings at the time of birth that they must be protected from themselves.


39
Id. at 238.

12

5. Surrogacy and Ethics

The present commercial model for maternal surrogacy in almost every clinic in the
developing world holds that a contractual relationship is forged between the client (usually a
woman or couple from a wealthy country), the clinic, and the surrogate. But from a medical
perspective, the clinician is directly responsible for the care of both the client and the surrogate,
though he or she is being paid by just the client. This is clearly a conflict of interest. Consider if a
medical situation were to arise in which the clinician must act either to save the life of the fetus
or the surrogate. He has a strong financial incentive to choose on behalf of the paying client, and
thus the fetus. The absence of an independent medical advocate acting on behalf of the surrogate
immediately nudges this relationship into the realm of exploitation.
Given that the surrogate is often quite poor, uneducated, and semi-literate, it seems
unlikely that she is even aware of the dangerous nature of her unequal status in this commercial
relationship. This vulnerability further complicates the proper receipt of true informed consent.
In legal terms, informed consent is a process to avoid fraud and the imposition of one partys will
upon another. In medical ethics, it is the process of a clinician receiving genuine permission from
an autonomous person to perform a medical procedure on that person.
Illiteracy is but one barrier preventing the communication of such risk. But when risk is
presented in the same package as a significant financial incentive for accepting that risk, the
negative consequences are necessarily muted in comparison.






4. Judicial Perspective
The Baby M Case


13

The New Jersey Supreme Court's decision in In re Baby M
40
sparked much controversy and
debate over the legality of a surrogate parenting contract. The contracting father, William Stem,
entered into a surrogacy arrangement with Mary Beth Whitehead whereby Ms. Whitehead was
artificially inseminated with the sperm of Mr. Stem. The case involved a custody battle between
Whitehead, the gestational mother, and Stem, the biological father. The court concluded that the
surrogacy contract between them was unenforceable because it conflicted with existing "(1) laws
prohibiting the use of money in connection with adoptions; (2) laws requiring proof of parental
unfitness or abandonment before termination of parental rights is ordered or an adoption is
granted; and (3) laws that make surrender of custody and consent to adoption .revocable in
private placement adoptions."' In addition, the court held that the contract was against public
policy" and that a mother could not contract away her parental rights under the New Jersey
statutes.
Upon finding the contract unenforceable, the court transformed the case into a custody battle. It
applied established rules for determining child custody by deciding what arrangement was in the
best interest of the child.
The court concluded that William Stem, a biochemist, and Betsy Stem should raise the child' and
that Mary Beth Whitehead, whose parental rights could not be extinguished without a finding of
parental unfitness, should be given visitation rights.

Subsequent Decisions
As recently as 1990, courts have applied this same analysis to surrogate parenting contracts. In In
re Adoption of Paul
41
, the parties signed a forty-nine page surrogate parenting agreement
whereby the surrogate agreed to be artificially inseminated with the sperm of the contracting
male. The contract provided for payment of $10,000 to the surrogate, in addition to all other
expenses, upon surrender of custody of the child to the intended parents. The surrogate appeared
before a New York family court to obtain a "Judicial Consent" to allow the adoption of her son
by the father and his wife.
In deciding the case, the court first addressed whether the contract was legal under state law. It
found that there was no clear legislative guidance on the subject of surrogacy and thus looked to

40
537 A.2d 1227 (N.J. 1988). For an in depth look at the Baby M decision, see Anita L. Allen, Privacy, Surrogacy,
and the Baby M Case, 76 Go. L.J. 1759, 1770-74 (1988)
41
550 N.Y.S.2d 815 (N.Y. Faro. Ct. 1990).

14

the law governing adoption. New York's adoption statutes, like New Jersey's, prohibit any
compensation in connection with an adoption. The court thus found that "compensation direct
[sic] to the mother for her 'services' in conceiving, carrying and giving birth to the child is not
permitted." Therefore, the surrogates parenting contract was void under existing New York law.
In order for the adoption to take place, the court had to be assured that the surrender of the
surrogate's parental rights was truly voluntary. Thus, the surrogate had to submit an affidavit
swearing that she "[would] not request, accept or receive the $10,000 promised to her in
exchange for the surrender of the child." In addition, the prospective adoptive parents had to
submit an affidavit swearing not to pay the surrogate any compensation for the exchange of the
child. The New York court clearly found "the analysis and conclusion reached by the New Jersey
Supreme Court compelling." Given the above, it seems likely that the court would apply the
"best interest of the child" analysis to any contested surrogacy adoption case.
Two more recent cases have cast further doubt on the legality of surrogate parenting contracts.
In In re Adoption of Matthew B.-M.
42
, a surrogate mother was artificially inseminated, gave
birth, and signed a consent to adoption. Approximately eight months later, she petitioned to
withdraw consent to the adoption. The surrogate claimed that the illegality of the surrogacy
contract was a sufficient basis for the withdrawal of her consent to adoption. The court refused to
rule on the legality of the contract and instead stated that, even assuming the illegality of the
contract, the adoption action rested on the surrogate's signed consent and not on the alleged
illegal contract." The court further found that contracts purporting to determine the custody and
control over children in a custody dispute "while not void or illegal, are not binding on the court;
rather, the best interests of the child control custody determinations, regardless of the parties
agreement.
The court seemed to consider this strictly an adoption proceeding without much further
discussion of the surrogacy contract and, in the best interest of the child, denied the surrogate's
petition and allowed the adoption to proceed. The court further urged the legislature to consider
the question of surrogacy and provide courts with the necessary guidance with which to
determine questions associated with surrogacy.
In a second case, decided in 1991, the court sought to determine whether a surrogate who was
implanted with a fertilized egg was the legal mother of the resulting child or whether the husband

42
284 Cal. Rptr. 18 (Cal. Ct. App. 1991), cert. denied, 112 S. Ct. 1685 (1992).

15

and wife, who provided the fertilized egg, were the legal parents. The California appellate court
in Anna J. v. Mark C.
43
concluded that the surrogate, who agreed to have the fertilized egg
implanted in her womb and who carried the child to term, was not the natural mother of the
child. The court ruled that the wife, who provided the egg, was the natural mother and that the
husband, who provided the sperm, was the natural father. The surrogate further argued that even
if she was not considered the natural mother under California law, she should be given parental
rights as a matter of constitutional law, due to the profound contribution she made to the child's
development.
The court rejected this argument and found that to give a gestational surrogate "a liberty interest
in her relationship with the child is to diminish the liberty interest of [the biological parents] in
their relationship with the child." In its conclusion, the court again urged the legislature to take
action on the subject of surrogacy "so that both parents and children can face the future with
certainty over their legal status."
It seems clear from the discussion above that courts want and need legislative guidance
concerning surrogacy contracts. Although courts are dealing with this issue because they have to,
they are subtly (and sometimes not so subtly) pleading with their respective legislature to help
them resolve these tough questions. While many legislatures have enacted some type of
legislation to deal with surrogacy, the question remains whether any legislation can adequately
deal with the various concerns that feminists raise.






5. Conclusion
It seems ironical that people are engaging in the practice of surrogacy when nearly 12 million
Indian children are orphans. Adoption of a child in India is a complicated and a lengthy

43
Anna J. v. Mark C., 286 Cal. Rptr. 369 (Cal. Ct. App. 1991), review granted in part, 822 P.2d 1317 (Cal. 1992).

16

procedure for those childless couples who want to give a home to these children. Even 60 years
of Independence have not given a comprehensive adoption law applicable to all its citizens,
irrespective of the religion or the country they live in as Non-Resident Indians (NRIs), Persons of
Indian Origin (PIOs) or Overseas Citizens of India (OCIs). As a result, they resort to the options
of IVF or surrogacy. The Guardian and Wards Act, 1890 permits Guardianship and not adoption.
The Hindu Adoption and Maintenance Act, 1956 does not permit non-Hindus to adopt a Hindu
child, and requirements of immigration after adoption have further hurdles.
There is a strong need to modify and make the adoption procedure simple for all. This will bring
down the rates of surrogacy. Altruistic and not commercial surrogacy should be promoted. Laws
should be framed and implemented to cover the grey areas and to protect the rights of women
and children.









Bibliography
Books Referred

17

Surrogate Motherhood and the Politics of Reproduction by Susan Markens
Surrogate Motherhood: International Perspectives by Shelley Day Sclater
Bioethics and the Law, Janet L. Dolgin & Lois L. Shepherd, 69 (2nd ed. 2009).
Mother Machine, Gena Corea, 228 (1985).

Articles Cited
Katherine B. Lieber, Selling the Womb: Can the Feminist Critique of Surrogacy Be
Answered?
Barbara Stark, Transnational Surrogacy and International Human Rights Law.
Anita L. Allen, Privacy, Surrogacy, and the Baby M Case, 76 Go. L.J. 1759, 1770-74
(1988)
Shari O'Brien, Commercial Conception: A Breeding Ground for Surrogacy, 65 N.C. L.
Rzv. 127, 144, 152 (1986) at 144.
Philip J. Parker, Motivation of Surrogate Mothers: Initial Findings, 140 AM. J.
PsYCmcATRY 117, 117 (1983).
Janet L. Dolgin, Status and Contract in Surrogate Motherhood: An Illumination of the
Surrogacy Debate, 38 BuFF. L. REv. 515, 523-24 (1990).
Jalna Hanner, A Womb of One's Own, in TEST-TUBE WOMAN: WHAT FUTURE
FOR MOTHERHOOD? 444-45 (Rita Arditti et al. eds., 1984).
Anita L. Allen, Surrogacy, Slavery, and the Ownership of Life, 13 HARv. J.L. & Pun.
PoL'Y 139, 147-48 (1990)
Lori B. Andrews, Surrogate Motherhood: The Challenge for Feminists, in SURROGATE
MOTHERHOOD 167, 168 (Larry Gostin ed., 1990)
Barbara Stark, The Womens Convention, Reproductive Rights, and the Reproduction of
Gender, 18 Duke J. Gender L. & Pol'y 261, 27478 (2011).
Elizabeth S. Scott, Surrogacy and the Politics of Commodification, 72 LAW & CONTEMP.
PROBS. 109, 146 (2009).
Kimberly D. Krawiec, Altruism and Intermediation in the Market for Babies, 66 WASH.
& LEE L. REV. 203, 225 (2009).