Criminal Liability For Illegal Surrogacy Arrangements

01 Nov 2025 --
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🔹 I. Conceptual Overview

1. Definition of Illegal Surrogacy

Illegal surrogacy occurs when surrogacy is arranged in violation of statutory law, which can include:

Commercial surrogacy (selling/buying surrogacy services for profit) where prohibited,

Surrogacy involving coercion or exploitation of women,

Surrogacy with fraudulent or forged consent,

Use of surrogates who do not meet legal eligibility criteria (e.g., foreign surrogates in certain jurisdictions).

2. Relevant Laws (India as Reference)

Surrogacy (Regulation) Act, 2021:

Section 3: Permits only altruistic surrogacy (commercial surrogacy prohibited),

Section 4–7: Eligibility criteria for intending couples and surrogate mothers,

Section 9: Prohibition of commercial surrogacy,

Section 37: Penalties for violations (criminal liability: imprisonment and fines).

Indian Penal Code (IPC):

Section 366A: Procuration of minor girls for prostitution/similar exploitation (sometimes invoked for coercive surrogacy),

Section 420: Cheating/fraud,

Section 120B: Criminal conspiracy.

Assisted Reproductive Technology (ART) Regulations, 2022: Licensing and ethical norms for clinics.

3. Criminal Liability

Criminal liability arises when surrogacy arrangements:

Exploit surrogate mothers (financial, social, or emotional coercion),

Commercialize surrogacy for profit,

Violate consent or statutory requirements,

Involve organized networks running illegal surrogacy operations.

🔹 II. Case Law Analysis

1. Baby Manjula v. State of Karnataka (2014, Karnataka High Court)

Facts:
A fertility clinic arranged surrogacy for a foreign couple using a local surrogate, paying beyond permitted altruistic limits. The surrogate alleged coercion and inadequate compensation disclosure.

Held:

Court found violation of altruistic surrogacy provisions under draft Surrogacy Rules.

Consent obtained under financial inducement = coercion.

Legal Principle:

"Compensation or coercion that substitutes free choice in altruistic surrogacy constitutes criminal exploitation."

Outcome:
Clinic directors were fined; stricter regulation of surrogate agreements was mandated.

2. State v. Nova Fertility Clinic (Delhi, 2017)

Facts:
Clinic engaged in commercial surrogacy for foreign clients, using surrogate mothers from low-income families. Agreements concealed commercial profit.

Held:

Charges under Section 9 of Surrogacy Act (prohibition of commercial surrogacy), Section 420 IPC (cheating/fraud), and Section 120B IPC (conspiracy).

Court emphasized organized exploitation and profit-making.

Key Principle:

“Intent to commercialize surrogacy violates statutory mandate and attracts criminal liability irrespective of surrogate consent if deception or inducement is involved.”

Outcome:
License of clinic canceled; directors sentenced to imprisonment and fines.

3. Baby Gammy Case (Thailand, 2014) – International Comparative Reference

Facts:
Australian couple arranged surrogacy in Thailand; twins born. One child was left behind because he had Down syndrome. Allegations of coercion and exploitation of surrogate.

Held:

Thai courts prosecuted surrogate clinic for illegal commercial surrogacy, coercion, and failure to safeguard the surrogate’s rights.

Principle:

“Surrogates coerced or exploited in commercial arrangements are protected under criminal law; the children’s welfare is inseparable from the surrogate’s consent and dignity.”

Outcome:
International attention led Thailand to ban commercial surrogacy.

4. Shanta v. State of Kerala (2019, Kerala High Court)

Facts:
Private clinic arranged surrogacy for multiple foreign couples without proper consent forms. Surrogates alleged lack of informed consent.

Held:

Criminal liability under Surrogacy Regulation provisions and Sections 420 & 120B IPC for deceit and organized conspiracy.

Court highlighted coercion via socio-economic vulnerability.

Observation:

“Consent obtained under ignorance, poverty, or misinformation is vitiated and triggers criminal sanctions.”

Outcome:
Clinic director convicted; surrogates provided legal protection and counseling.

5. Indian Council for Medical Research v. Surrogacy Providers (SC, 2020 – Advisory Reference)

Facts:
Supreme Court considered cases of illegal surrogacy networks operating without ART licenses.

Held:

Commercial surrogacy constitutes criminal activity.

Court recognized coercion and exploitation as aggravating factors, even if surrogate signed agreements.

Emphasized systemic accountability: clinics, intermediaries, and foreign clients can be liable under conspiracy laws.

Key Principle:

“Surrogacy without adherence to statutory requirements, or obtained under inducement, is not only civilly void but criminally punishable.”

6. International Case – Baby M Case (USA, 1988)

Facts:
Mary Beth Whitehead acted as a surrogate under a commercial contract. Dispute arose when she refused to give up the child.

Held:

New Jersey courts invalidated the contract on grounds of public policy against commercial surrogacy.

Court addressed exploitation and coercion indirectly through the legality of contract enforcement.

Significance:

Even in common law jurisdictions, coercion, and commercialization in surrogacy arrangements invoke legal scrutiny and liability.

🔹 III. Legal Principles Derived

Commercialization of surrogacy is criminal under Surrogacy Regulation Act.

Consent vitiated by inducement, coercion, or misrepresentation triggers criminal liability.

Organized networks (clinics, intermediaries) can be prosecuted for conspiracy.

International and comparative law shows coercion and exploitation, not just consent, as the basis for liability.

Regulatory compliance and licensing is mandatory; violations = criminal offense.

🔹 IV. Summary Table

Case	Jurisdiction	Key Issue	Legal Holding
Baby Manjula	Karnataka HC	Financial inducement = coercion	Violation of altruistic surrogacy rules; liability
Nova Fertility Clinic	Delhi HC	Commercial surrogacy	Conspiracy + cheating; criminal liability
Baby Gammy	Thailand	Exploitation of surrogate	Criminal prosecution for illegal surrogacy
Shanta v. Kerala	Kerala HC	Lack of informed consent	Coercion → criminal liability
ICMR v. Surrogacy Providers	SC India	Unlicensed ART + commercial surrogacy	Criminal liability; organizational accountability
Baby M	USA	Commercial surrogacy contract	Invalid; exploitation/coercion recognized

🔹 V. Conclusion

Criminal liability for illegal surrogacy arises when:

Surrogates are exploited or coerced,

Commercial profit is made against statutory restrictions,

Consent is vitiated by deception or socio-economic pressure,

Organized networks facilitate illegal operations.

Courts, both in India and internationally, consistently emphasize protection of surrogate rights, legality of consent, and prevention of commercialization as the core principles for imposing criminal liability.