🧾 SURROGACY LEGAL FRAMEWORK (OVERVIEW)

Surrogacy refers to an arrangement where a woman (surrogate mother) carries and delivers a child for another individual or couple (intended parents).

1. Types of Surrogacy

• Traditional surrogacy: Surrogate’s own egg is used (genetic mother).
• Gestational surrogacy: Embryo created via IVF; surrogate has no genetic link.

2. Legal Position in India (Current Framework)

India now regulates surrogacy under:

• Surrogacy (Regulation) Act, 2021
• Assisted Reproductive Technology (ART) Act, 2021

Key Features:

• Only altruistic surrogacy allowed (no commercial payment except medical + insurance expenses)
• Surrogacy allowed only for:
  • Indian married couples (with eligibility conditions)
  • Widows/divorcees (in limited cases)
• Strict prohibition on:
  • Foreign nationals (in most cases)
  • Commercial surrogacy
• Mandatory:
  • Surrogacy boards (National and State level)
  • Eligibility certificates
  • Medical necessity proof

⚖️ IMPORTANT CASE LAWS ON SURROGACY (DETAILED)

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

📍 Supreme Court of India

Facts:

• A Japanese couple commissioned a child through an Indian surrogate in Gujarat.
• Before birth, the couple divorced.
• The intended mother refused custody.
• The intended father wanted to take the child.
• Legal confusion arose about the child’s nationality and parentage.

Legal Issues:

• Who is the legal parent of a surrogate child?
• What is the nationality of a child born via surrogacy in India?
• Whether Indian law adequately regulates surrogacy contracts?

Judgment:

• Supreme Court allowed the child to leave India with the grandmother.
• The Court did NOT decide surrogacy validity directly but highlighted legal gaps.

Significance:

• Exposed absence of surrogacy legislation at that time
• Triggered regulatory reforms in India
• Highlighted risk of statelessness in surrogacy cases

2. Jan Balaz v. Anand Municipality (2009)

📍 Gujarat High Court (later involved Supreme Court)

Facts:

• A German couple had twins via an Indian surrogate in Anand, Gujarat.
• Germany refused to grant citizenship because surrogacy was not recognized.
• India also initially refused passports.

Legal Issues:

• Citizenship status of surrogate-born children
• Whether surrogacy creates legal parent-child relationship
• Cross-border surrogacy recognition

Judgment:

• Gujarat HC recognized genetic parents as legal parents.
• Directed issuance of Indian passports to children to avoid statelessness.
• Later, Germany agreed to grant citizenship.

Significance:

• One of the most important cases on cross-border surrogacy
• Highlighted conflict between nationality laws and reproductive technology
• Pushed India toward stricter surrogacy regulation

3. Baby M Case (In re Baby M, 1988, USA – New Jersey Supreme Court)

Facts:

• Traditional surrogacy agreement between Mary Beth Whitehead (surrogate) and William Stern (intended father).
• Surrogate changed her mind after birth and wanted custody.
• Intended father insisted on enforcement of contract.

Legal Issues:

• Are surrogacy contracts valid?
• Can a mother waive parental rights before birth?

Judgment:

• Court held surrogacy contract invalid and unenforceable
• Declared surrogate as legal mother
• However, custody awarded to biological father based on best interest of child

Significance:

• Established early judicial skepticism toward surrogacy contracts
• Emphasized public policy concerns (commodification of children/women)

4. Johnson v. Calvert (1993, California Supreme Court – USA)

Facts:

• Gestational surrogacy case.
• Intended parents provided both sperm and egg.
• Surrogate refused to hand over child after birth.

Legal Issues:

• Who is the legal mother: genetic mother or birth mother?

Judgment:

• Court ruled in favor of intended mother
• Introduced concept of intent-based parenthood doctrine
• Held that intention at time of conception determines parentage

Significance:

• Landmark case legitimizing gestational surrogacy
• Shifted legal focus from biology to intention + contract

5. Baby Gammy Case (2014 – Thailand-Australia Surrogacy Dispute)

Facts:

• Thai surrogate carried twins for an Australian couple.
• One twin (Gammy) had Down syndrome.
• Intended parents took only healthy twin, left Gammy in Thailand.

Legal Issues:

• Ethical limits of commercial surrogacy
• Rights of surrogate-born children with disabilities

Outcome:

• Global outrage led to tightening of surrogacy laws in Thailand and Australia
• Child was raised by surrogate mother

Significance:

• Became a turning point in global surrogacy ethics
• Highlighted exploitation risks in commercial surrogacy
• Influenced India’s ban on commercial surrogacy

📌 SUMMARY OF LEGAL PRINCIPLES EMERGING FROM CASE LAW

From these cases, courts globally have developed key principles:

1. Best Interest of the Child

• Always prioritized over contract terms

2. Genetic vs Gestational Motherhood

• Courts differ: some prefer genetics, others intention

3. Validity of Surrogacy Contracts

• Mixed approach:
  • US (Baby M): skeptical
  • US (Johnson v Calvert): supportive if gestational

4. Risk of Statelessness

• Cross-border surrogacy can leave children without nationality

5. Need for Regulation

• Almost all jurisdictions moved toward statutory regulation after disputes

🇮🇳 CURRENT INDIAN POSITION (CONCLUSION)

India has moved from:

• Unregulated commercial surrogacy (pre-2015)
  to
• Restricted altruistic surrogacy (post-2021 law)

This shift was largely driven by:

• Baby Manji case
• Jan Balaz case
• Ethical concerns from global surrogacy disputes