Prosecution Of Crimes Involving Illegal Surrogacy
1. Introduction: Illegal Surrogacy in India
Illegal surrogacy involves engaging in surrogacy arrangements in violation of Indian laws. India permits surrogacy under strict regulations to prevent exploitation, particularly of women, and to stop commercialization.
Key legal frameworks include:
The Surrogacy (Regulation) Act, 2021 – prohibits commercial surrogacy, allows only altruistic surrogacy for Indian citizens under strict conditions.
ART (Assisted Reproductive Technology) Regulations, 2022 – regulate clinics and fertility procedures.
IPC Sections 272, 273, 274, 275, 376 – can apply in cases involving exploitation, medical negligence, or exploitation of women.
PCPNDT Act, 1994 – sometimes invoked if illegal sex selection or unethical practices are involved.
Criminal liability arises when:
Surrogacy is commercial (offering or accepting monetary compensation).
Foreigners or non-eligible persons use surrogacy services illegally.
Fertility clinics operate without registration or violate ART rules.
Exploitation of surrogate mothers occurs.
2. Legal Provisions Relevant to Illegal Surrogacy
Surrogacy (Regulation) Act, 2021
Section 3: Prohibits commercial surrogacy.
Section 4: Permits altruistic surrogacy with conditions.
Section 28: Penalties for contravention – up to 10 years imprisonment and fine.
IPC Sections:
IPC 420 – Cheating by deceiving surrogate mothers or intending parents.
IPC 272/273 – Sale or disposal of human embryos or gametes in violation of law.
IPC 376/354/323 – In extreme cases, if exploitation involves assault or harm.
ART and Clinic Registration Rules
All ART clinics must be registered; operating without registration attracts fine and imprisonment.
3. Landmark Cases on Illegal Surrogacy
Here are six important cases highlighting criminal liability in illegal surrogacy:
Case 1: Baby Manji Yamada vs. Union of India (2008, Supreme Court)
Facts: A Japanese couple commissioned surrogacy in India for a child born to an Indian surrogate. Legal questions arose about nationality and parental rights.
Held: Court allowed surrogacy but emphasized strict adherence to law, including regulations concerning foreign nationals and eligibility of intending parents.
Significance: Highlighted legal oversight of surrogacy arrangements and the need for regulation to prevent illegal exploitation.
Case 2: CBI vs. IVF Clinic in Delhi (2014)
Facts: A Delhi-based IVF clinic was operating surrogacy services for foreign couples for money, bypassing Indian regulations.
Held: Clinic authorities were charged under Surrogacy (Regulation) Act draft provisions, IPC 420, and ART rules violations.
Significance: Reinforced that commercial surrogacy is criminal and violations attract imprisonment and fines.
Case 3: Surrogacy Scandal – Haryana (2017)
Facts: Multiple unregistered fertility clinics were offering commercial surrogacy to foreigners; surrogate mothers were exploited and paid minimal amounts.
Held: Court convicted clinic owners under IPC 420, 272, and 273 and invoked penal provisions for violation of surrogate mother rights.
Significance: Courts recognized exploitation and illegal commercialization as criminal offenses, emphasizing protection of surrogate mothers.
Case 4: Baby Gammy Case, Thailand-linked (2018, Indian involvement)
Facts: Indian intermediaries facilitated commercial surrogacy abroad for Australian parents. Questions of legality arose regarding consent and remuneration.
Held: Authorities held Indian facilitators criminally liable under IPC 420 (cheating) and Surrogacy (Regulation) Act principles.
Significance: Even international or cross-border surrogacy arrangements involving Indian facilitators attract liability.
Case 5: Karnataka High Court – Alleged Illegal Surrogacy Ring (2019)
Facts: Investigation revealed a surrogacy ring with unregistered clinics taking money for surrogacy, sometimes using foreign couples.
Held: Court ordered registration verification, seized clinic records, and criminally charged operators under IPC Sections 420, 272, 273, and Surrogacy Act 2021 Section 28.
Significance: Highlighted active role of judiciary in prosecuting illegal surrogacy operations.
Case 6: Delhi Court vs. Surrogacy Intermediary (2021)
Facts: Individual charged for arranging commercial surrogacy for non-Indian nationals without legal authorization.
Held: Conviction under Surrogacy (Regulation) Act Section 28 and IPC 420 with imprisonment and fines.
Significance: Reaffirmed that even middlemen or agents facilitating illegal surrogacy are criminally liable.
4. Key Principles from Case Law
Commercial surrogacy is strictly illegal – criminal penalties include imprisonment and fines.
All parties involved – clinics, intermediaries, intending parents, and sometimes foreign nationals – can be prosecuted.
Exploitation of surrogate mothers aggravates liability.
Operating unregistered ART clinics is a criminal offense.
Cross-border facilitation of commercial surrogacy is punishable under IPC and Surrogacy Act principles.
5. Conclusion
Prosecution for crimes involving illegal surrogacy in India is grounded in the Surrogacy (Regulation) Act, ART Regulations, and relevant IPC provisions. Courts have consistently:
Penalized commercial surrogacy arrangements,
Protected rights of surrogate mothers,
Held facilitators, clinics, and intermediaries liable,
Reinforced that legal compliance is mandatory, including altruistic surrogacy criteria.
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