The question of the extent to which the provisions of the ART Bill 2008 actually and effectively address the various issues in a typical surrogacy regime is obviously open to discussion. But until the ART Bill becomes an act in 2008 and surrogacy agreements remain covered by existing trade laws, we hope that Indian courts will not face the dilemma of more baby manjis. In a situation where a surrogacy agreement has been violated and is being reviewed by a court for damages, the position of the contractual parents (compared to the surrogate mother) to claim damages for infringement may be very weak, given that the harm suffered by the contractual parents would likely be too speculative to allow recovery. the economic value of a child is impossible to calculate. However, if surrogacy is to fall entirely within the scope of the 1872 Act, the surrogate mother should not be allowed to terminate the contract simply because she did not foresee that she could develop an emotional bond with the child after birth. This can be challenged under section 22 of the 1872 Act, according to which a contract is not contestable solely because one of the parties has made a substantive error. However, in such a situation, the surrogate mother may argue that the surrogacy agreement, in accordance with the principles set out in s14, s19 and s19a of the 1872 Act, is questionable if the surrogate mother can prove that she approved the contract under unacceptable influence or coercion and that the agreement was not based on free consent.2 It is also important: the validity of a surrogacy contract under other Indian laws, such as s23 of the 1872 Act, stipulates that consideration is unlawful if it exceeds the provisions of a law. Under section 17(1) of the Hindu Adoption and Maintenance Act 1956, no payment or reward may be received from a person in exchange for the adoption of a person. In the absence of a specific law on surrogacy, if surrogacy is to be equated with adoption and is then governed by the above-mentioned laws, no payment could be made to the surrogate mother, either in return or in costs and expenses of pregnancy.

For the sake of brevity, Baby Manji`s facts are not repeated here. Baby Manji was commissioned by a surrogate mother from Gujarat and left in abeyance after the Japanese contracting couple divorced. The desperate situation of the Japanese baby of a few days, between a surrogate mother who was only acting within the framework of a commercial agreement and who was not interested in keeping the baby, the mother repairing the contract who was no longer interested in the baby and the father who wanted it, but who posed an obstacle to certain provisions of Indian law, was widely reported by the media....

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