INDIAN LEGAL SYSTEM ASSIGNMENT

TOPIC- SURROGACY (REGULATION) BILL, 2019

SURROGACY (REGULATION) BILL, 2019

Women acquires a vital position and a venerable place in the society. Our country must have
the largest number of laws, extensively for the benefit of women. The principal of gender
equality is enshrined in the Indian constitution in its preamble, Fundamental Rights,
Fundamental Duties and Directive Principles. Some of the constitutional provisions provided
are mentioned in article 14, 15, 15(3), 16, etc; for article 15 prohibits the state from
discriminating on the basis of religion, race, case, sex, place of birth, article 15(3) allows the
state to make special provisions for women and children. Beside these constitutional
provisions, there are several laws meant for protection and benefit of woman. Some of them
are, medical termination of pregnancy act,1971; dowry prohibition act,1961; commission of
sati prevention act,1987; protection of women from domestic violence act,2005, etc.

The Constitution not only grants equality to women, but also empowers the state to adopt
measures of positive discrimination in favour of women for neutralizing the socio economic,
education and political disadvantages faced by them. One such initiative taken recently by
government to bring a positive change for women in the society is the introduction of new
surrogacy bill. It is an effort to rampant the interests and safeguard the surrogate mothers and
children from abuse and exploitation.

SURROGACY AND IT’S EVOLUTION

Surrogacy means process of carrying and delivering a child of another person. it is the
practice whereby one woman carries a child for another with the intension that the child
should be handed over after birth.

Surrogacy is not a new practice. It is an ancient old practice. The roots of surrogacy can be
traced long back in Indian history and provided evidences for being the century old procedure
in India. This practice dates back to biblical times. The first surrogate mother in history is
believed to have lived somewhere near the city of Hebron, the land of Canaan, two thousand
years before the birth of Christ.

The evolution of surrogacy took place in India when the world’s second and India’s first IVF
baby, Kanupriya, alias Durga, was born 67 days later on October 3, 1978 in Kolkata. The
birth of baby Kanupriya (also known as Durga), through the novel procedure was marked by
 tremendous controversy. Since then the field of assisted reproductive technology (ART) has
developed rapidly.1

There are two types of surrogacy practices prevailing in India.

 Traditional/Natural/Partial surrogacy- In traditional surrogacy, the surrogate mother

is impregnated with the sperm of the intended father artificially which makes her both the
genetic and gestational mother.

 Gestational surrogacy. - the embryo that is fertilised by the in-vitro method is

implanted into the uterus of the surrogate mother who then carries and delivers the
baby.

Gestational surrogacy became popular in India due to advances in reproductive medicine, a

large pool of impoverished women and low cost compared to countries such as the United
States, Canada and Australia

Like in other countries, in India also, the following two types of surrogacy arrangements
are being practiced:

Altruistic surrogacy: Where the surrogate mother receives no financial rewards for her
pregnancy or the relinquishment of the child to the genetic parents except necessary medical
expenses.

Commercial surrogacy: Where the surrogate mother is paid over and above the necessary
medical expenses.2

A HUB FOR SURROGACY IN INDIA

According to govt, the rate of surrogacy tourism was increasing in India which means
people who are exploiting poor women to have their child in return for some money. It had
led to illegal business and was unregistered. According to some estimate India had some
2000-3000 such unregistered clinics been operated illegally for the greed of money and the
business grew worth more than 1 billion dollars to control that govt had mandated

1
http://indiansurrogatemothers.com/history-surrogacy-india/
2
Indian Journal Of Medical Research : R.S SHARMA
 registration of such clinics. India has grown as a hub for surrogacy. 2000 foreign couples
resorting to surrogating practices within India.

There were multiple reports concerning unethical practices, exploitation of surrogate

mothers, abandonment of children born out of surrogacy and rackets involving
intermediaries importing human embryos prompting the need for a stringent law on
surrogacy.

o The surrogates generally turn out to be poor illiterate women of rural

background who are persuaded by their spouse or middlemen to enter such deals to earn
easy money. 

o After recruitment by the commercial agencies, women are shifted to hostel to

be taken care of. The real motive is to avoid the community which leads to women
spending the whole pregnancy period worrying about their household and family.

o In case of unfavourable outcome of pregnancy, they won’t be paid any extra

money and also no insurance benefits are provided to the women.

SURROGACY (REGULATION) BILL, 2019

The surrogacy bill introduced by minister of health and family welfare, DR Harsh Vardhan in
Lok Sabha on july15, 2019 seeks to ban on commercial surrogacy and allow ethical altruistic
surrogacy to the intending fertile Indian married couple between the age of 23-50 years for
female and 26-55 years for male.

 Only Indian couples who have been legally married for at least 5 years would be
allowed to opt for surrogacy.

 It makes it mandatory for the couple to obtain a certificate of essentiality and also a
certificate of eligibility before going ahead with surrogacy. It also provides that intending
couples should not abandon the child born out of surrogacy under any condition.

 The surrogate mother should be a close relative of the intending couple and should
have a child of her own and should be between the age of 25-35 years and should be
certifiably mentally and physically fit.
 The Bill also seeks to regulate functioning of surrogacy clinics. All surrogacy clinics
in the country need to be registered by the appropriate authority in order to undertake
surrogacy or its related procedures.

 The Bill provides for various safeguards for surrogate mothers One of them is
insurance coverage to cover not only the period of pregnancy but after that also.

 It also specifies that no sex selection can be done when it comes to surrogacy

 On the legal status of surrogate child, the Bill states that any child born out of a
surrogacy procedure shall be the biological child of the intending couple and be entitled to
all rights and privileges available to natural child.3

NEED FOR SURROGACY BILL

India is the only country where surrogacy is neither banned nor completely regulated.
Currently there was no law in India for regulating surrogacy. Lack of legislation of surrogacy
had led to its rampant commercialisation, unethical practices, exploitation of surrogate
mothers, abandonment of children born out of surrogacy and import of human embryos and
gamete. a large population of these ladies are forced to get into this business and to get
pregnant every year which is definitely bad for health. And villages and families don't accept
these ladies back, not even their husbands who force them to get into this business. There is
no care taken for post pregnancy medication. They don't get appropriate money for further
survival. So, a law was definitely required.

There were unresolved cases in the history related to the citizenship of the surrogate children
or the rights of the commissioning couple, exploitation towards surrogate mothers etc. the
judgements made by the court got difficult as there were no proper laws implemented.

Some of the leading case were;

BABY MANJI YAMDA V UNION OF INDIA

In this case, the nationality of a baby was in question as he was born from traditional
surrogacy. The father was a Japanese and the surrogate mother was Indian. So, baby Manji
was not granted VISA as the Japan’s procedure code failed to recognize the surrogate
children and the ambiguity for authorities arose in case of mother’s name.
3
http://www.prsindia.org/billtrack/surrogacy-regulation-bill-2019
This case was a landmark case as after this case, the Supreme Court of India had given green
signal to practice commercial surrogacy in India.4

JAN BLAZE V ANAND MUNICIPALITY

In this case, childless German couple had twins through gestational surrogacy in India.
German law doesn’t recognize surrogacy so babies couldn’t be treated as German citizens.to
avoid the hurdle of immigration the couple approached the Indian court. in absence of any
legislation to the contrary, the court was inclined to recognize the gestational surrogate who
has given birth to the child as natural mother and the intended mother just the wife of the
biological father. 5

These case laws show that there was a need of proper legislation and laws to regulate
surrogacy to avoid confusion and ambiguity and pass justified decisions.

EFFORTS MADE TO REGULATE SURROGACY

There were many efforts made by the legislature to regulate surrogacy and pass surrogacy
laws in India.

 In India, presently the proposed Assisted Reproductive Technology (Regulation), Bill,

2014 had banned surrogacy to all foreigners and allowed only to foreigner married to
an Indian citizen, Overseas Citizen of India (OCIs), Non-Resident Indians (NRIs) and
People of Indian Origin (PIOs).
 The Indian Council of Medical Research (ICMR) made the first attempt at regulating
surrogacy in 2005 by drafting the National Guidelines for Accreditation, Supervision
and Regulation of ART clinics in India.
 The law commission of India in its 228th report had reasoned why surrogacy laws
were needed. The ART Bill even though made an effort to regulate surrogacy has
been criticized by a large number of scholars on the ground that it promotes the
interest of the medico-business lobby and does not provide an adequate protection to
the rights of the surrogate mothers and children.

4
BABY MANJI YAMADA v. UNION OF INDIA & ANR. [2008] INSC 1656 (29 September 2008).
5
JAN BLAZE V ANAND MUNICIPALITY
  Then followed the surrogacy regulation bill, 2016 Bill was reintroduced in 2019 and
the Lok Sabha promptly passed it. The bill is still pending in rajya sabha and is yet to
be passed.

COMMERCIAL SURROGACY V ALTRUISTIC SURROGACY

Commercial surrogacy has been considered as an ‘exploitation’ and the altruistic surrogacy as
‘sanskari’ surrogacy in India. But is it really true or just a myth?

COMMERCIAL SURROGACY

Commercial surrogacy or called as “wombs for rent”, “baby wombling business”, “womb on
hire” was legalised in India in 2002 because the government has the promoted the medical
tourism from abroad. Therefore, India became the top most country in international
surrogacy. The Indian surrogates become very popular in international surrogacy industry.
Legalised in India, it is now a half- a-billion-dollar company doing the business of almost
$445 billion. The commercialization of surrogacy raised fear of black market and baby
selling, turning impoverished women in baby producers. The surrogacy in India did a
booming business due to easy availability of surrogate mothers and low cost.

But if seen from a different prospect, the commercial surrogacy also has a lot of merits. a lot
of women from poor family background practice this form to earn money. it is the source of
the livelihood for the poor illiterate women. it gives the women a chance to be economically
independent and support the family financially which would also eradicate abuse and
domestic violence. It is a job of dignity as it helps the couple a hope to experience
parenthood.

ALTRUISTIC SURROGACY

Altruistic surrogacy or ‘sanskari surrogacy’ is the one where the surrogate mother doesn’t
receive any monetary benefits for her pregnancy except medical expenses. It is considered as
‘ethical’ and ‘moral’ in the society as there is no money involved in this.
But, looked from a broader prospect this form of surrogacy is also an exploitation. .  It will
lead to emotional abuse of female relatives by making surrogacy, a social obligation. It will
just transport reproductive labour from the markets to the households by making women’s
reproductive capacities into a free resource available for unquestionable consumption within
families. This can lead to an increase in domestic violation and amount to forced labour,
which would lead to violation of the provisions and articles in the constitution. This is just
another form of labour that is both socially and emotionally harmful.

Therefore, both the forms of surrogacy has it’s own merits and demerits. It is just a societal
myth that has termed commercial surrogacy as exploited and evil in the society and altruistic
surrogacy as virtuous and moral .

BILL PROTECT RIGHTS OR DENY CHOICES

There are clauses and provisions in the bill that has led to a debate whether the bill will
really benefit the society. A lot of criticisms has been made from activists, lawyers and
women health groups, who have demanded that it’s problematic mandates and clauses be
redrafted or removed.

Some of the crucial aspects of surrogacy bill and the issues to be looked into are;

 Does the bill really protect the women or is unfair to them?

The main aim of the bill is to eradicate exploitation to women. Surrogacy is a way to earn
livelihood for poor women. Due to ban of commercial surrogacy, the means of income of
poor women will be taken away from them. women are basically being asked to use their
body for greater good without being paid for it. The commissioning couple gets a child, the
doctors, the hospital and the middlemen will be getting paid, but the women are expexted to
practice without any penny. ths bill assumes that surrogate will make a free choice, but it fails
to consider that The women are always the most powerless within the family system. Just
because the transaction is taking place within the family does not necessarily imply that the
woman will not coerced for forced, which can also lead to domestic violence or abuse within
the families. Women would have to go through a lot of mental pressure.
  Inflexible and stringent bill

The bill is seen to be inflexible and privileged archaic family system that is not in sync with
the reality. The bill is considered illogical as it is mentioned that the surrogate mothers has to
be a close relative where the definition of close relative is not mentioned and which also
means that bill denies the right to have a child to couples who do not have a close family
unit, family support, or family members who would be willing to support them by
becoming a surrogate mother. The bill also restricts the same sex couples and live-in
couples even though they been recognized under law, single parents which is unjustified
too as they have proved to be a great nurture to children.

 Violation of constitutional provisions and rights

The surrogacy regulation bill does not appear to be in consonance with the constitutional
provisions. It violates various fundamental rights of the people and the judgements made in
the precedent landmark cases, as overseas Indians, unmarried couples, single parents, live-in
partners and same sex couples are banned from the services of surrogacy, therefore affecting
both the legislative and judicial aspect of constitution.

o Firstly, the law violates article 14 of the Indian constitution which states “equality
before law and equal protection of laws to all the persons” as the bill is restricted only
to infertile married couples and barres others from commissioning to surrogacy
services, considering the bill as ‘highly prejudiced’
o Secondly, the bill violates article 21 of the constitution as it threatens the ‘right to
livelihood’ of many poor women who are financially dependent on surrogacy to
support their families and ‘right to reproductive autonomy’ are part of the article.

The ‘right to reproductive autonomy’ is violated as the parents have the right to choose the
mode of parenthood and could be either naturally or through surrogacy and any interferrance
is this choice leads to violation of rights.

o Thirdly, the proposed bill violates the article 19, specifically article 19(1)(g) which
states the ‘freedom of trade and profession’ in India. Many surrogacy industry and
 clinics depend on commercial surrogacy as a means to earn income and the complete
ban cannot be justified as it risks the stakeholders in the billion-dollar companies.
o The Bill also violates the Puttaswamy judgement of the Supreme Court It is a
landmark judgement of 2018, which holds that Right to privacy was added in the list
of fundamental rights guaranteed by the Constitution under article 14, 19 and 21 of
constitution of India.6

SUGGESTIONS AND CONCLUSIONS

This surrogacy regulation bill has been into controversy from the day it has been introduced.
On one hand, surrogacy is a boon to the infertile couples but on the other hand it has led to
the commercialization of this method posing various problems. Commercial surrogacy
protects the reproductive entitlements of infertile women but its criminalization violates the
human right. The main aim for the bill is to protect the interests of women and safeguard
them from exploitation. Some of the laws and provisions mentioned in the bill does benefit
the society like; it safeguards the mothers by providing them insurance coverage, no sex
selection is allowed, protects the surrogate child, seeks to regulate functioning of surrogacy
clinics. But to most of the extent the bill is considered a failure as the laws and clauses in the
bill are more on moralistic terms and ‘too narrow’ in its understanding. It is not in
consonance with the present day social milieu as it overlooks a large section of society like
live-in couples, single widow, same sex couples etc.

No doubt that surrogacy bill is a progressive step and is a huge step towards regulation of
surrogacy practice in India but there has to be improvements made, because a bill with these
many loopholes; if passed by the legislature will create a lot of ambiguity and will only prove
the inefficiency of the government.

One suggestion is that regulation should be the answer and not the banning. The IVF centres
need to be regulated as there have been a lot of malpractices happening leading to illegal
business and increase of global black market for surrogacy services.

The ART bill needs to be looked into consideration before passing the surrogacy bill.

6
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors
An intense regulation is required and a blanket ban does not address the real need and could
simply drive the surrogacy market underground, making it worse for all concerned.