are not enough to deal with the regulatory aspect of surrogacy as it gives rise to some unanswered questions of law and issues

are not enough to deal with the regulatory aspect of surrogacy as it gives rise to some unanswered questions of law and issues & situations, which can only be dealt with by a proper and effective regulatory framework covering, governing, defining and regulating relationships and allied matter arising out of surrogacy transaction. Moreover, technically speaking surrogacy arrangement can never be a contract as it involves ‘human being” as subject matter so legality of which can be challenged on the basis of provisions of Indian Contract Act, 1872 and Indian Constitution.
But these guidelines can be taken into consideration only for medical operations involving in surrogacy and not otherwise. These guidelines cannot governor cannot regulate relationship arising out of surrogacy. So to this extent guidelines are of no use to the parties to abide by or to govern their relationship arising out of surrogacy.
In the wake of such state of affair of law relating to surrogacy, judicial response or judicial intervention was sine qua non for settling the certainty and clarity in the existing laws to accommodate the surrogacy transaction. In the landmark case of Baby Manji Yamda v. Union of India39 as mentioned above, Baby Manji, a surrogate child of a Japanese couple who were having legal difficulties getting a visa for the child born in Gujarat, the Supreme Court of India came to the rescue by giving custody of the child to the surrogate grandmother and held that commercial surrogacy is permitted in India.
In yet another case in the matter of Jan Balaz v. Anand Municipality a German couple entered into a contract with a surrogate mother. Twin children were born. The question was whether a child born in India to surrogate mother, an Indian national, whose biological father is a foreign national, would get citizenship in India, by virtue of birth. This was unprecedented in the legal history of India.
The High Court of Gujarat keeping in view the findings of Supreme Court in Baby Mani’s case held that this case is primarily concerned with the relationship of the child with the gestational surrogate mother, and with the donor of the ova. In the absence of any legislation to the contrary, the High Court is more inclined to recognize the gestational surrogate who has given birth to the child.
In the both the cases discussed above, the Indian Courts have taken a very pro-surrogacy contract stand, possibly as a way of encouraging commercial surrogacy, thereby recognizing “commercial surrogacy”.
Law Commission of India in its 228th Report, 200941 made certain recommendations to legalize surrogacy by effective legislation which can cover all the aspects of Surrogacy and relationships arising out of surrogacy. Some of the important recommendations of Law Commission of India are:
? Surrogacy agreement will continue to be governed by contract between the respective parties and the contract will deal conclusively with all the rights and liabilities of the parties thereto. But such an arrangement should not be for commercial purposes.
? A Surrogate arrangement should provide for financial assistance for surrogate child in the event of death of intended parents or individual before delivery of the child or divorce between the intended parents and as a consequence none of the parent takes delivery of the child.
? One of the intended parents should be donor as well, because the bond of love and affection with a child primarily originates from the biological relationship.
? Legislation should recognize a surrogate child to be the legitimate child of the commissioning parents without there being need for adoption or even declaration of guardian.
? The birth certificate of the surrogate child should contain the name of the commissioning parents only.
? Right of privacy of donor as well as surrogate mother should be protected.
? Gender selective surrogacy should be prohibited.
? Cases of abortion should be governed by Medical Termination of Pregnancy Act only.
Surrogacy arrangement involves different application on different set of law or branches of law which are relevant for our consideration so far as the validity of the surrogacy is concerned. ARTs have transformed the way we see reproduction and have come up with tractable solutions but controversial options to procreation through the unconventional means As per the provisions of Indian Contract Act, 1872, for a valid contract both the consideration and object must be lawful. At the same time every agreement of which the object or consideration is unlawful is forbidden by law, or if it contravenes the provisions of any law or the court regards it immoral, or against the public policy. In this context even though Surrogacy transactions meets the basic requirements of “an Agreement” the same may not be converted into a “Contract” since an agreement enforceable by law is contract. To this extent it is very difficult to term “Surrogacy Agreement” as “Surrogacy Contract” and this is due to the above mentioned prohibitions on the Surrogacy agreement