A person's natural right is the right to procreate. The suffering of not being able to have children is overwhelming. The institution of family has been prioritized by every civilization in the world. A new family is created when two people are married and form a marital union, and that family is complete when the children are born.Since the beginning of time, parents have valued their offspring as a source of joy and a requirement for the survival of the family line.According to psychologists, having a child strengthens the link between spouses and can help troubled marriages endure over time.

However, a significant portion of the population is unable to produce for a variety of reasons. Most of the partners, according to the investigation, have such issues. A baby's absence is seen as a stigma within the family. Most of the examples of weddings failed as a result of infertility. Infertility, sometimes known as incapacity, which means they can produce or conceive a child, is a very big issue. Infertility rates range from 10 to 15 per cent worldwide, including in India, according to WHO report.

Adoption was only the choice that was left to the couples. These people have been helped by the development of medical research, mainly in the area of artificial human reproductive technologies (ART). Artificial insemination, in-vitro fertilization, embryo transfer, and other ART methods are among the possibilities available. Surrogacy has gained popularity across all of the techniques.

Surrogacy Concept And History.

Definition And Perspective Of Surrogacy

Utilizing one women's womb to carry children for another woman is known as surrogacy, which has evolved a better level of generative science. Surrogacy is the most effective way to overcome both biological and social infertility. Couples who are not able to conceive naturally or through in-vitro fertilization have the option of surrogacy.

For people who want to have a baby who is biologically related to their blood, Surrogacy has grown as a desirable choice. Surrogacy is now a generally accepted notion on a global scale. Infertile couples view surrogate birth as a blessing since it offers them a revolutionary chance to become parents.

The term "surrogate" is derived from the Latin word "surrogates" which means "a substitute" or "a person appointed to act on behalf of another". a married pair who are unable to have children due to the infertility of the wife enter into a surrogate mother agreement with a fertile pf the woman who agrees to conceive the husband's child through the artificial insemination, and carry the baby to term, and give up all parents rights in the baby.

Indian History Of Surrogacy

Surrogacy is seen differently in every nation on Earth. The legal system and social structure in India are unique compared to other countries. In India, the idea of surrogacy is not a recent development.

Hindu mythology also offers stances on surrogacy and reflects the secrecy that still surrounds surrogacy practice. In Bhagavata Purana, lord Vishnu heard Vasude's prayers importing Kansa not to kill all his sons being born. The embryo from Devaki's womb transferred to the womb of Rohini, another wife of Vasudev. Rohini gave birth to the baby Balaram, brother of Krishna, and secretly raised the child while Vasudev and Devki.

Similar to Maharishi Bhardwaj, who saw a celestial nymph emerge from the river after taking a bath, he felt discerning and hence, placed his semen in a jar used for yagna called a Darona. Dronacharya was born here and was given the name of the vessel.

History Of Surrogacy In Different Countries

United States
Surrogacy has historically been regulated at the state level in the United States. Many state legislatures passed laws outlawing surrogacy in the wake of the Baby M case in the 1980s, where a Traditional Surrogate chose to break her surrogacy contract and fight to keep the genetically related child she had carried. This was done to prevent a situation similar to this from happening again. Due to which the implications of having a new federal structure, the United States that has a variety of surrogacy laws, This section discusses the characteristics of American laws governing assisted reproductive technology (ART) and surrogacy. In contrast to the United Kingdom, they had not established a national policy regarding surrogacy in the United States. Surrogacy in the USA is governed by a patchwork of state laws that fall into four major categories of legal policy.

1. Status regulation
2. inaction
3. prohibition
4. contractual ordering.

United States has different surrogate motherhood laws. Surrogacy is restricted in some states & it is legal in others. Since the USA is a federal nation, states are free to enact surrogacy laws. The US Supreme Court could utilize the commerce clause or the idea that right of the surrogacy is a part of the right to procreation for the support of key legislation.

United Kingdom
Human Fertilization and Embryology Act, 1990
Parental orders are governed under the Human Fertilization and Embryology Act of 1990, which applies to the entire United Kingdom. The Surrogacy Arrangements Act 1998 governs other aspects of surrogacy. Since there are no international conventions or agreements that govern how surrogacy should be handled between nations, anyone thinking about engaging in an international surrogacy arrangement must keep in mind, if they reside in the United Kingdom, they are subject to UK law and the definitions that form the basis of it. Neither the surrogate nor the intended parents can break the law.

The individual who does it for profit, however, is breaking the law. Although it is not recognized by the law as a binding agreement between both parties during the time leading up to and immediately following the baby's birth, surrogacy is legal in the UK. In reality, UK couples considering surrogacy are traveling abroad to nations where the practice is accepted.

Kinds Of The Surrogacy

There are 3 kinds of surrogacy exist. They are i) mandatory/ gestational surrogacy ii) total surrogacy iii) genetic surrogacy. In genetic or partial surrogacy, the man's spouse of the couple wishing for the child fertilizes the female's egg either with artificial insemination or less frequently, through natural sexual activity.

Traditional surrogacy and partial surrogacy are other names for this practice. Total surrogacy occurs when the commissioning father or the donor's sperm is used to fertilize the surrogate's egg.

In gestational surrogacy, the commissioning couple's egg and semen (or those of anonymous donors) are used, and the resulting embryo is then put into the surrogate or bearing mother. In this case, the surrogate mother is not related to the child genetically. Full Surrogacy is another name for this kind of surrogacy.

Although the commissioning parent may pay the surrogate mother's expenses and costs associated with carrying an embryo to term, the surrogate mother is not paid financially in altruistic surrogacy. The majority of cases of this kind of surrogacy involve family members or close friends.

The traditional justification offered for why no monetary remuneration is required in this kind of surrogacy is that the choice to be a surrogate is made out of love, not selfishness or even avarice. Even though,the different type of surrogacy, commercial surrogacy, frequently, uses the rhetoric of giving, the surrogate receives cash compensation in addition to reimbursement for pregnancy, and related costs. The surrogate gets compensated for her gestational services in this way.

The New Face Of Surrogacy

It is now feasible to distinguish between the surrogate mother and the genetic mother thanks to, in-vitro fertilization (IVF). Legally speaking, this division meant that the surrogate's relationship with the child would be far weaker than it would be in more conventional surrogacy scenarios. The market for surrogacy was made easier and could flourish because of the division of the womb and the eggs .It also represented a substantial departure from past types of conventional surrogacy's conceptual guiding principles.

In conventional surrogacy, the gestational mother also donated the genetic material, the intended parents were very careful to locate a woman whose genetic composition matched either their own or the trait they desired for the offspring.

Some studies have shown a growing trend towards choosing gestational mothers who are of caste or color wholly different from the genetic heritage of the child being carried, both to prevent parentage claims from being made and to lessen the maternal bond formed between the child and the gestational mother.

Additionally, compared to IVF, which is necessary for gestational surrogacy, traditional surrogacy, with Intrauterine Insemination (IUI), which is by far the simpler medical procedure with a relatively, low incidence of harm to the surrogate, did not involve as much pharmacological dependence.

The change from traditional to gestational surrogacy made it possible for the surrogacy market to grow globally, allowing families to engage in gestational mothers in India despite the stark differences in genetic makeup, appearance, and another characteristic. Globalization is a phenomenon in the surrogacy industry that has fueled demand and supply. The rise of reproductive tourism was, in a good way, a result of globalization, which has united all countries into a single "knowledge society."

Current Laws In India And Other Foreign Countries

Access the infertility services is being greatly reduced as a result of the sharp rise in prices in European nations.This has led to visits by couples to other nations where surrogacy costs are lowest. Every nation has its,surrogacy laws, with several outlawing the practice. Surrogacy is prohibited in some nations, including the UK, Germany, Sweden, and France. International surrogacy is expanding quickly, yet there are no common laws or rules that must be adhered to by all countries in this regard. Additionally, some nations mandated that the surrogate baby's DNA should coincide with the commissioning parents.

In the U.S.A, The 2 different legal formalities which need to be performed in the cases of surrogacy. It creates many problems and stress for the commissioning parents due to time-consuming rules.

Two different legal procedures must be followed in surrogacy proceedings in the United States. The lengthy paperwork causes many issues and problems for the commissioning parents.

In the U.S., the citizenship of the child is governed by the Immigration And Nationality Act (INA) Section 301 & 309. citizenship completely depends on the genetic connections of the baby with their commissioning parents. Therefore, the baby should have a genetic relationship with the father to get U.S Citizenship.

In INDIA, commercial Surrogacy has been legalized since 2002. The practice of surrogacy is relatively much lesser than the other countries. hence, the people of foreign countries are taking over here to have the child in the process. There is a ban on surrogacy where the commissioning parents/ are gay couples, single men, single women, nonmarried couples, and all couples from countries where surrogacy is prohibited/ illegal in India.

Sections 301 and 309 of the Immigration and Nationality Act (INA) govern a baby's citizenship in the United States. The child's genetic relationship to the commissioning parents determines citizenship. Since commercial surrogacy was made legal in INDIA in 2002, it has become a developing nation in this field. Surrogacy is a substantially less expensive practice than in other nations. Therefore, people from other nations are entering this country to produce children through this method.

Surrogacy Agreements And Contracts:

In the instance of Baby Manji, a surrogacy contract was signed by the surrogate mother on one side and the biological father and mother on the other. However, once questions about the surrogacy agreement's validity were raised in this case, the court upheld them.

However, the court concluded that because of the lack of a regulatory statutory law to handle the difficulties and the concerns arising out of it. Given its widespread business practice in India, the court ordered that a statute be enacted as soon as possible. The ART BILL 2008 was created by Indian Council Of Medical Research by court instruction and is administered by the Ministry of Health and Family Welfare, by Indian Government. It provides legal management of surrogacy and misuse of technology in India.

This ART Bill has undergone, periodic revisions and necessary changes as the ART Bill 2010and most recently the ART Bill is also revised in the year 2013 and submitted for consideration by, the cabinet but the detailed draft of the same is not made public. This is because the ART Bill has been the subject of discussions and scrutiny.

Gestational surrogacy is covered by Article 7 of this Act, which offers several approaching requirements for the enforcement of Gestational Agreements. In, Article 8 allows for the surrogate's expenditures to be reimbursed as well as the payment of fair remuneration. Additionally, Article 8 of the Uniform Parentage Act, of 2000 handles parentage concerns as well gestational agreements and their legal validity through court proceedings.

Surrogacy, The Indian Constitution, And The Thesis Objective:

"A nation's constitution is essentially adjectival rather than substantive; it does not strive to dictate what should be done but rather how a government's power should be used. It has a procedural personality. The process outlined here is always based on a particular political philosophy, insistence on the necessity of free persuasion in time for every significant decision to change the status quo.

It's frequently equated to sex work, and instead of being autonomous employees, surrogates and the industry that supports them emphasize their identity as dependent moms.

The purpose of this thesis is to explicitly attempt to operationalize the Indian Constitution during the early stages of lawmaking. In India is a case study to examine ways in which the Indian Constitution might operationalize the process of passing surrogacy laws, even though this contribution may address several social issues.

Constitutional Challenges To Determine Percentage By Contract

It is useful to consider the line of Supreme Court rulings addressing the rights of biological fathers to determine if pregnancy and childbirth result in a right with a strong historical and cultural foundation.

It's crucial to note, though, that there is no definite gender difference in the presumption that a surrogate mother has a due process right to parental rights. A surrogate also has the right to contest a surrogacy agreement where the intended parent(s) are a heterosexual couple, a gay couple, or a single female. The Supreme Court states Geduldig v. Aiello when examining state disability programs that excluded infirmities brought on by pregnancies.Men and women are not protected from the same risks in the same way.

In essence, the fact that a clause banning pregnancy from state insurance coverage did not discriminate against women because not all women will become pregnant was not the point of the clause. A similar presumption that a surrogate has a legal basis to contest a surrogacy contract is not gender discriminatory because it safeguards the rights of women who choose to be surrogate mothers rather than women's rights exclusively as women.

Surrogacy contract disputes pose particular difficulties. For a surrogacy agreement with payment of the surrogate to continue to any capacity, it is necessary to strike a balance between competing constitutional rights to parenthood. The compulsion is, brought to light by the challenges of implementing selective reduction provisions, whether by particular performance or monetary damages, and all of these make legal remedies extremely difficult to estimate or forecast.

The constitutional right to bear children may be impermissibly violated by thorough, screening of prospective parties, and empirical data also demonstrates the risk of prejudice that comes with vetting people for access to assisted reproductive technology. A system of contracting that is supported by complete transparency between the parties is a solution. That would have promoted predictability by enabling informed decision making. When a woman bears a child for a couple who are unable to conceive naturally, this is known as surrogacy. It is particularly helpful for those who suffer from a pregnancy condition.

For many years, surrogacy has been used. It is strongly supported in ancient epics like the Mahabharata and the Bible . Many nations permit surrogacy, while others forbid it or only permit it partially. It is illegal in places like Germany, Sweden, France, and other nations. Only charitable surrogacy is permitted in several nations, including Belgium. While some nations simply uphold moral principles and forbid it, others view it as being contrary to ethical principles. The decision in Baby Manji Yamada v. Union of India it was in Baby Manji's favor.

Commercial surrogacy benefits both the commissioning parents and the surrogate mothers because the surrogate mother reaps the rewards of her sacrifices in giving birth to the child and the commissioning parents are not held responsible for the surrogate mother's suffering because they were solely focused on the baby's happiness. In metropolitan districts, the infertility rate is rising day by day.

To uphold the heritage of justice for all, public society and lawmakers should create legislation that is implemented with an emphasis on preventing

the exploitation and ambiguity involved with surrogacy practice. Many childless couples have found the rise of India as a center for assisted reproductive technologies to be beneficial, but we must make sure that the medical community, as well as surrogates and intended parents, are carefully looked after to prevent any issues for the family unit, especially for the children born through surrogacy.

The laws that are passed must be written so that the child, the surrogate, and the intended parents—not the middlemen—are the true beneficiaries of the practice. Foreigners wishing to have surrogate children in India should only be permitted if adequate documentation and verifications have been made through the relevant institutions and embassies. Finally, following thorough deliberation and debate that should include all parties or organizations involved, including doctors, social activists, and surrogacy clinics, a favorable and rigorous law must be passed.

India has been the top destination for commercial surrogacy for four primary reasons: easy access to surrogates, top-notch medical facilities, affordable prices, and humane laws. As a result, people are traveling to India in search of surrogate mothers from both within India and from other nations. The supporters (surrogate mothers, commissioning parents, and the infant born) continued to experience issues even after India became the focus of commercial surrogacy. Surrogates deal with issues that are social, economic, legal, and medical. The main challenge for expectant parents who reside abroad is returning with their child to their native land.

The issue of nationality had been a barrier for many newborns conceived through surrogacy. Despite all of the challenges, the commercial surrogacy sector has been growing and prospering. The main justification offered in its favor is that it benefits both surrogates and childless couples. It both offers the childless couple a child and provides financial support for the surrogate. The entire Bill was prepared without a legal foundation or consideration of the opinions of the relevant parties. Even though the Hon. Supreme Court of India has ruled that homosexuality is no longer a crime, it still prohibits homosexuals from using the surrogacy method to have children.

The bill excludes gays rather than including them, which is against the nature of the law of the land and is in conflict with it. In several situations, couples may not be able to find a close relative to satisfy the surrogacy, and in those situations, they would not be permitted to have children, which is also wrong in and of itself and violates their fundamental rights. Therefore, rather than improving the nation's morals, this proposed bill may have negative effects.

To move towards including intending couples and enabling every deserving individual to obtain a child through surrogacy if truly necessary, the government must reexamine the proposed bill and revise the surrogacy policy. Excluding gays or implementing extremely strict procedures will ultimately result in the general populace being dissatisfied and losing their will, as well as harming the economy.

Conclusion And Suggestions
When a woman bears a child for a couple who are unable to conceive naturally, this is known as surrogacy is particularly helpful for those who suffer from a pregnancy condition.For many years, surrogacy has been used. It is strongly supported in ancient epics like the Mahabharata and the Bible.Many nations permit surrogacy, while others forbid it or only permit it partially.It is illegal in places like Germany, Sweden, France, and other nations. Only charitable surrogacy is permitted in several nations, including Belgium. While some nations simply uphold moral principles and forbid it, others view it as being contrary to ethical principles .The decision in Baby Manji Yamada v. Union of India it was in Baby Manji's favor.

So, if the judiciary, which is considered to be the guardian,of the constitution and the most important branch of the government in the nation, has permitted surrogacy to benefit the people, then it is safe to assume that it is a blessing for society and should be granted legal status in the nation .Commercial surrogacy benefits both the commissioning parents and the surrogate mothers because the surrogate mother reaps the rewards of her sacrifices in giving birth to the child and the commissioning parents are not held responsible for the surrogate mother's suffering because they were solely focused on the baby's happiness. In metropolitan districts, the infertility rate is rising day by day.

To uphold the heritage of justice for all, public society and lawmakers should create legislation that is implemented with an emphasis on preventing, the exploitation and ambiguity involved with surrogacy practice. Many childless couples have found the rise of India as a center for assisted reproductive technologies to be beneficial, but we must make sure that the medical community, as well as surrogates and intended parents, are carefully looked after to prevent any issues for the family unit, especially for the children born through surrogacy.

The laws that are passed must be written so that the child, the surrogate, and the intended parents—not the middlemen—are the true beneficiaries of the practice. Foreigners wishing to have surrogate children in India should only be permitted if adequate documentation and verifications have been made through the relevant institutions and embassies. Finally, following thorough deliberation and debate that should include all parties or organizations involved, including doctors, social activists, and surrogacy clinics, a favorable and rigorous law must be passed.