Abstract The desire for motherhood leads to search for alternatives solutions, and surrogacy presents itself as the most viable alternative. The practice of surrogacy arouses positive as well as negative emotions ranging from mild taste to revulsion. Despite the demand, surrogacy has its share of critics in India due to the moral, ethical and legal issues that swirls around it. The regulation of the system of surrogacy, through an effective legislation, dealing all aspects and issues of surrogacy will be beneficial to all concerned and society as a whole. Keywords: Surrogacy, Surrogate Motherhood, Assisted Reproductive Technology and Regulation.
1.1 Introduction Surrogacy is a process by which the intended parents take the help of a surrogate woman for begetting a child and the surrogate woman agrees to carry the child for full term and also to relinquish her parental rights over the child after birth and hand it over to the intended parents. Thus surrogacy is a lengthy and time consuming process which requires sincere cooperation and understanding between the parties. Generally every surrogacy process involves an agreement between commissioning parents and surrogate woman. The couples/ individuals who wish to beget a child through surrogacy must first find a female who is willing and able to fulfill the particular needs unique to that couple/individual. After a suitable surrogate is found out, the intended parents/parent may enter into an agreement, i.e. a surrogate contract with the prospective surrogate. This contract can be a formal written agreement or a mere understanding between the parties and may or may not involve payment of monetary compensation to the surrogate woman for her service. A surrogacy contract involving payment of monetary compensation to the surrogate is considered as a commercial surrogacy contract, while a surrogacy contract in which no monetary compensation is given to the surrogate for her service is considered as an altruistic surrogacy contract. Such a contract between the intended parents/parent and the surrogate woman is very essential to protect the interests of the various stakeholders involved in the surrogacy arrangement. The surrogacy contract generally contains in it the rights and duties of surrogate mother and intended parents as well as terms regarding the welfare of childlike custody, parentage,etc. However, the issues regarding the legality and enforceability of such a surrogacy contract is debatable because every surrogacy contract raises various legal and human rights questions. For example, the questions that arise in a surrogacy contract are whether surrogacy contract is yet another form of prostitution,a form of slavery or whether it involves commodification of motherhood. It is often criticized that commercial surrogacy is a form of baby selling and would lead to promotion of positive eugenics. It is also argued that surrogacy contracts and more specifically commercial surrogacy arrangements are against public policy. Further, surrogacy contracts also raise questions regarding the appropriate remedies in case of any violation of such contracts. All these issues are very controversial and difficult to answer due to the fact that there is no uniformity in the legal systems prevailing in theworld. This diversity has led to different approaches towards the legality and enforceability of surrogacy contracts. The approaches adopted by different countries towards surrogacy contracts are not uniform. Only some of the countries have enacted legislations dealing with surrogacy contracts and they widely vary in their approach. Some countries consider surrogacy contracts as illegal, some permit only certain types of surrogacy contracts and some countries recognize all types of surrogacy contracts. Thus the approaches ofthe various legal systems can be classified into three types: a) prohibition of all types of surrogacy contracts b) prohibition of only commercial surrogacy contracts and allowing only altruistic surrogacy contracts and c) allowing both commercial and altruistic surrogacy contracts. In India all types of surrogacy contracts are consideredas valid and enforceable. However, there are no legal provisions directly dealing with surrogacy contracts in India. In the absence of a specific legal provision it is verydifficult to answer the various questions raised by surrogacy contract. Therefore whena dispute arises the courts will have to decide the case on the basis of traditional contract law and other laws. Such an approach may detrimentally affect the interests of the parties to such surrogacy contracts and also the interests of surrogate children. There is therefore a need to resolve the ambiguity relating to surrogacy contracts as well as various legal issues surrounding such contracts. This necessity is now a days of utmost importance due to the increasing use of surrogacy in recent times by individuals and couples. It is argued that the current laws in India do not address these issues adequately and theincreasing disputes in surrogacy contracts lead to court battles that may adversely affect the interests of various stakeholders involved in surrogacy contracts. Hence it is essential to examine the existing legal framework in India and its adequacy to deal with various issues raised by a surrogacy contract.