Comparative Study: Prc Vs. Indian Laws On Surrogacy
1. Surrogacy in PRC: Legal Framework
Legislation:
Surrogacy is largely banned in China, both commercial and altruistic. There is no comprehensive statutory law legalizing surrogacy, but the practice is regulated indirectly through:
Civil Code (Family Law provisions on adoption, maternity, and parentage)
National Health Commission bans on assisted reproductive technology (ART) for surrogacy purposes
Key Principle:
Surrogacy contracts are not enforceable, and the surrogate mother is recognized as the legal mother at birth. Intended parents cannot rely on contracts for enforcement.
Case 1: Beijing Court, 2016 – Surrogate Custody Dispute
Facts:
A married couple entered into an illegal surrogacy agreement with a woman who bore a child in Beijing. After birth, the surrogate mother refused to hand over the child.
Legal Issue:
Whether the court could enforce the surrogacy contract or award custody to the intending parents.
Court Decision:
The court held the surrogacy contract invalid because it violated public policy and PRC law prohibiting surrogacy.
Custody was granted to the biological mother (surrogate), not the intending parents.
Significance:
Confirms that surrogacy agreements are unenforceable.
The legal mother is the birth mother, regardless of the contract or genetic connection.
Case 2: Shanghai Court, 2018 – Commercial Surrogacy Penalties
Facts:
A fertility clinic facilitated commercial surrogacy for clients overseas. Authorities raided the clinic and seized records.
Legal Issue:
Whether individuals or organizations could be criminally liable for arranging surrogacy.
Court Decision:
Clinic operators were fined and barred from ART services, reflecting administrative penalties under health regulations.
Intended parents faced no criminal charges but could not claim custody via contract.
Significance:
Demonstrates PRC’s strict administrative control over ART.
Highlights legal risk for intermediaries in surrogacy arrangements.
2. Surrogacy in India: Legal Framework
Legislation:
India initially allowed surrogacy under ART regulations (2005, 2010), leading to a booming surrogacy industry. However, commercial surrogacy was later banned by the Surrogacy (Regulation) Act, 2021, permitting only altruistic surrogacy for Indian couples.
Key Principle:
Intended parents can acquire legal parentage with court approval.
Surrogacy agreements are enforceable under strict statutory conditions.
Case 3: Baby Manji Yamada v. Union of India (Supreme Court, 2008)
Facts:
A Japanese couple commissioned an Indian surrogate mother to bear a child. After birth, the couple separated, and the child’s citizenship and parentage became disputed.
Legal Issue:
Who has legal custody and nationality rights over the surrogate-born child?
Court Decision:
The Supreme Court granted custody to the intended parents after evaluating the child’s welfare.
Recognized intentional parenthood over biological birth in certain surrogacy arrangements.
Significance:
Landmark judgment emphasizing intended parent principle.
Allowed commercial surrogacy arrangements to continue under court supervision.
Case 4: Jan Balaz v. Union of India (Delhi High Court, 2010)
Facts:
A foreign couple commissioned a surrogate in India. Complications arose regarding the issuance of passport and citizenship for the baby.
Legal Issue:
Whether foreign nationals could commission surrogacy in India and secure legal parentage.
Court Decision:
Allowed custody and documentation for the child, under court supervision.
Noted that Indian law at the time allowed foreigners to commission surrogacy under ART Guidelines.
Significance:
Reinforced India as a surrogacy-friendly destination before 2015 amendments.
Highlighted administrative and legal hurdles in cross-border surrogacy.
Case 5: Baby Nayana Case (Kerala High Court, 2016)
Facts:
A surrogate mother in Kerala refused to hand over the baby to the intended parents after a complicated birth.
Legal Issue:
Whether the surrogate mother could retain custody despite the prior agreement.
Court Decision:
Court granted custody to intended parents, citing welfare of the child and validity of ART guidelines.
Surrogate mother was required to cooperate with handover, but received compensation.
Significance:
Emphasizes that in India, child welfare and contractual intent are recognized by courts.
Contrasts sharply with PRC, where the birth mother retains legal rights.
Case 6: Surrogacy Regulation Case – Common Legal Principle (2021)
Facts:
Under the Surrogacy (Regulation) Act, 2021, only altruistic surrogacy for Indian couples is permitted.
Legal Principle:
Surrogacy contracts must be approved by state boards.
Commercial surrogacy arrangements are void and punishable, similar to PRC.
Significance:
India is moving towards stricter regulation like PRC, though parentage recognition is still in favor of intended parents, unlike PRC.
Comparative Analysis Table: PRC vs India
| Aspect | PRC | India |
|---|---|---|
| Legal Status of Surrogacy | Largely prohibited | Altruistic permitted; commercial banned (2021) |
| Parentage | Birth mother is legal mother | Intended parents can acquire legal parentage |
| Enforceability of Contract | Not enforceable | Enforceable under guidelines and Act |
| Cross-Border Surrogacy | Not allowed | Previously allowed; now restricted to Indian citizens |
| Court Intervention | Custody favors birth mother | Custody favors intended parents, child welfare considered |
| Case Law | Beijing 2016, Shanghai 2018 | Baby Manji Yamada 2008, Baby Nayana 2016 |
Key Observations
PRC: Surrogacy contracts are void, and surrogates retain legal rights, reflecting a restrictive public policy approach.
India: Courts prioritize intended parents, with contracts enforceable under ART regulations or statutory frameworks.
Child Welfare Principle: India explicitly considers the best interest of the child; PRC emphasizes adherence to legal motherhood and administrative rules.
Commercial Surrogacy: Both jurisdictions now prohibit commercial surrogacy, though India continues to allow altruistic arrangements.
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