Surrogacy And Exploitation In Criminal Law
1. Overview of Surrogacy in Law
Surrogacy is an arrangement where a woman (the surrogate mother) agrees to bear a child for another person or couple (the intended parents), who will become the child’s parents after birth.
There are two types:
Altruistic surrogacy – No monetary compensation, only medical and reasonable expenses.
Commercial surrogacy – The surrogate is paid beyond medical expenses.
India banned commercial surrogacy under the Surrogacy (Regulation) Act, 2021, permitting only altruistic surrogacy for Indian citizens under strict conditions.
2. Exploitation in Criminal Law
In the context of surrogacy, exploitation includes:
Coercion of poor women to become surrogates.
Denial of legal rights or healthcare.
Commodification of women's bodies.
Trafficking in babies under the guise of surrogacy.
Criminal Law Instruments Involved:
IPC Sections: 370 (trafficking), 312–316 (offenses relating to miscarriage and unborn children), 317–318 (exposure and concealment of birth).
Juvenile Justice (Care and Protection of Children) Act.
Transnational laws (where international surrogacy is involved).
3. Case Laws – Detailed Analysis
1. Baby Manji Yamada v. Union of India (2008) 13 SCC 518
Facts:
A Japanese couple came to India for commercial surrogacy.
The couple divorced during the pregnancy.
The biological father wanted to take the child to Japan, but there were legal hurdles as the surrogate was Indian, and Indian law did not permit single men to adopt a girl child at the time.
Legal Issue:
Custody and rights of a child born through surrogacy.
Concerns over exploitation of Indian surrogate mothers.
Judgment:
The Supreme Court allowed the grandmother to take the child to Japan, considering the welfare of the child.
Raised alarms about the unregulated surrogacy industry and exploitation of poor Indian women.
Significance:
Triggered the push for a comprehensive surrogacy law in India.
Demonstrated how surrogacy can cross over into exploitation when legal frameworks are missing.
2. Jan Balaz v. Anand Municipality & Others, AIR 2010 Guj 21
Facts:
A German couple used a surrogate mother in Gujarat.
They faced issues in securing Indian passports for the twins born through surrogacy.
The German government did not recognize surrogacy-born children as citizens.
Legal Issue:
Legal status and citizenship of children born through surrogacy.
Rights of surrogate mothers vs. commissioning parents.
Judgment:
Gujarat High Court granted Indian passports.
Emphasized the need for legal clarity and international coordination.
Significance:
Showed how commercial surrogacy turns women into “baby factories”, especially in poor regions.
Highlighted the need for legal safeguards to prevent trafficking and abandonment.
3. Baby Yamuna Case (Andhra Pradesh)
Facts:
A surrogate baby was abandoned by the commissioning parents after being born with disabilities.
The surrogate mother, poor and illiterate, was left to care for the baby without any support.
Legal Issue:
Accountability of commissioning parents.
Protection for surrogate mothers and children.
Outcome:
Though not a Supreme Court case, it raised significant public interest and media scrutiny.
State authorities intervened to provide relief.
Significance:
Demonstrated how commercial surrogacy can lead to abandonment and exploitation.
Pressured lawmakers to make the commissioning parents legally accountable.
4. Union of India v. V. G. Row (1952 SCR 597) (Contextual Relevance)
Though not directly about surrogacy, this case is crucial in:
Balancing individual rights and state interest.
Setting the precedent for “reasonableness” in restrictions under Article 19.
Relevance to Surrogacy Law:
Helps justify legal restrictions on commercial surrogacy in the interest of preventing exploitation and upholding public morality.
5. European Court of Human Rights: Mennesson v. France (2014)
Facts:
French couple had children through surrogacy in the USA.
France refused to recognize the legal parentage of the children, citing a ban on surrogacy.
Legal Issue:
Violation of child’s right to identity and family life (Article 8, European Convention on Human Rights).
Judgment:
Court ruled France violated the children’s rights.
Emphasized that children born through surrogacy have independent rights.
Significance:
Shows the tension between national bans and international human rights.
While protecting against exploitation, children’s rights must not be compromised.
6. “Akanksha Hospital” Case, Anand, Gujarat
Facts:
Akanksha Hospital was a hub for international commercial surrogacy.
Investigations revealed exploitation of poor women, with middlemen taking large cuts and women given poor postnatal care.
Outcome:
Sparked national debate.
Became a focal point for lawmakers drafting the Surrogacy (Regulation) Bill.
Significance:
Provided real-world evidence of systematic exploitation in the surrogacy industry.
4. Conclusion and Observations
Criminal law must be invoked when surrogacy arrangements cross into trafficking, coercion, or baby-selling.
Legal bans on commercial surrogacy (like in India) aim to prevent exploitation, but can push the practice underground.
There's a need for balance between protecting surrogate mothers and ensuring the rights of the child and commissioning parents.
A robust legal framework, clear definitions, accountability mechanisms, and cross-border legal cooperation are essential.
Final Note
While surrogacy is a reproductive choice, unchecked commercialization can lead to criminal exploitation. The law must evolve to both protect vulnerable women and safeguard the interests of children—without unduly infringing on personal liberty.
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