HER BODY AND OTHER PARTIES: A FEMINIST DISCOURSE ON SURROGACY

AND THE INDIAN CONTRACT ACT

Introduction
In 1976, lawyer Noel Keane handled the first legal surrogacy transaction in surrogacy history.
Several historical snapshots have been published since then, illustrating the rise of the
surrogacy practise. Surrogacy is not a new concept; it has been around for a long time. With
the introduction of artificial insemination and assisted reproductive technologies, it
accelerated.

For the first time, surrogacy was shown in 1986 with the case of Baby M, a well-known
surrogacy instance. Contrary to previous agreements, the baby's surrogate and biological
mother decided to retain the kid. Case still matters because it demonstrates the contractual
relationship between intended parents and surrogates. These kinds of interactions may lead to
a variety of problems, as this article explains. It was declared that such contracts are illegal
and unlawful as a matter of public policy by the Supreme Court. After much deliberation, the
Court determined that it was in the child's best interest to be returned to his or her biological
parents.

As technology has advanced in recent years, mothers may now give birth to children who are
not connected to them genetically. Some of the most frequent ART treatments include IUI,
TET, IVF, ZIFT, GIFT, and gestational surrogacy, all of which involve introducing a
fertilised egg into the uterus through intrauterine insemination (IUI).

According to certain estimates, surrogacy has been used in India since the 18th century. As
India's first and second in vitro fertilisation (IVF) baby, Kanupriya, also known as Durga,
was born in Kolkata in 1978, her birth marking the commencement of surrogacy in India. In
2002, commercial surrogacy in India was made legal. In order to boost medical tourism in
India, this decision was taken.

Finally, the combination of science, society, services, and individuals to make surrogacy
feasible may be described as a final definition of surrogacy. However, others argue that
surrogacy is a win-win situation for everyone involved: the infertile couple, the surrogate

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mother, and herself. However, some argue that moral and ethical considerations must be
addressed. As a consequence, the topic will be discussed in more detail later on. Let us first
consider all the many kinds of surrogacy that are now available.1

A. On the basis of genetic relationship:

1. Traditional Surrogacy: The intended father or a sperm donor inseminates the
surrogate mother through conventional surrogacy. The surrogate mother is the child's
biological mother since she uses her own eggs in the process. This means that the
child has a biological connection to both the surrogate mother and the intended father
or sperm donor. As a condition of using a surrogate mother, the intending parents
must give up custody of their child.
2. Gestational Surrogacy: The embryo is generated in the process of In Vitro
Fertilisation in gestational surrogacy (IVF). The eggs and sperms of the intended pair
or a donor are utilised in the IVF procedure. The embryo is implanted in the uterus of
the surrogate mother once it has been developed. In this scenario, the surrogate
mother is not the biological mother. The kid is genetically connected to the
individuals who donated their eggs and sperm.
B. On the basis of payment to a surrogate:
1. Compensated/commercial surrogacy: Commercial surrogacy occurs when the
surrogate mother gets compensated in excess of the medical expenditures and other
specified expenses, as well as insurance coverage for bearing the child for the
intended parents. It also involves the purchase and sale of human embryos for
surrogacy.
2. Altruistic surrogacy: Altruistic surrogacy occurs when the surrogate mother receives
no compensation other than medical expenditures and other specified expenses, as
well as insurance coverage for bearing the child for the intended parents. It is usually
carried out by a close family member or a friend.

1
Joan C. Callahan, Reproduction, Ethics, and the Law: Feminist Perspectives (Indiana University Press, 1995).

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 Literature Review
On the subject of commercial surrogacy, social thinkers are split. Those who advocate for
surrogate parenting often emphasise the increased flexibility it provides. Surrogate contracts
give women more control over their fertility. Carmel Shalev (1989) goes even farther, stating
that outlawing such contracts fails to give women the respect they deserve for the decisions
they do make. It is condescending and humiliating to restrict a woman from freely entering
into a contract to create a child.

Commercial surrogacy supporters also make a point of distinguishing it from baby selling:
infants are not sold as commodities, but rather women's reproductive services are. We allow
males to sell their sperm, so why should women be barred from engaging in a similar
transaction? Finally, proponents argue that commercial surrogacy opens up new avenues for
homosexuals, and single individuals to become parents.

Commercial surrogacy opponents raise a wide range of concerns. The idea that gestational
labour is distinct from other forms of labour is perhaps the most popular criticism. Margaret
Jane Radin (1988) and Carole Pateman (1983) emphasise how childbearing work is more
directly linked to a woman's identity than other sorts of labour. Contract pregnancy entails
such profound alienation of components of the ego that it is considered an illegitimate
activity. Selling sperm is not comparable; pregnancy is a long-term, difficult task that entails
an emotional and physical relationship between mother and baby. 

This argument is echoed by Elizabeth Anderson (1990), who adds that surrogacy contracts
can separate a woman from her affection for the child and frequently include exploitation,
since surrogate sellers have less income and are more emotionally susceptible than
purchasers. Other arguments emphasise the weakening of the bond between parent and kid,
as well as children's unique vulnerability.2

Regulatory Framework in India

The Assisted Reproductive Technology (Regulation) Bill, 2020 and the Surrogacy
(Regulation) Bill, 2019, were adopted by the Rajya Sabha on December 8th. The Assisted
Reproductive Technology (ART) bill was introduced in Lok Sabha on September 14, 2020,
while the Surrogacy law was introduced on July 15, 2019. In the past two decades or more, as
the number of infertile couples and urban singles seeking to start families has grown, there

2
Sheela Saravanan, A Transnational Feminist View of Surrogacy Biomarkets in India (Springer, 2018).

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have been very few regulations aimed at regulating the industry that has sprung up across the
country, with few checks and balances in place.

The Indian surrogacy business was projected to be valued between $2 and $3 billion US
dollars in 2009. Unlawful practises related with surrogacy, which had become popular in
India and in especially in Gujarat's Anand, which has been dubbed the "surrogacy centre,"
necessitated legislation. Surrogate mothers, vulnerable women, and children born through
surrogacy are all at risk of being exploited in any unregulated company. Around the year
2000, the government began to engage in an attempt to regulate the sector due to an increase
in accusations of exploitation.

A rise in unethical practises, exploitation of sperm donors and even abandonment of

surrogate children has occurred since India became a surrogacy hotspot, paving the road for
the eventual outlawing of commercial surrogacy in India. Commercial surrogacy has been
highly discouraged by the Law Commission of India's 228th report

New law has many other problems, including this one. As long as she isn't paid, why would
any woman consent to carry another person's child? Even in Western countries, according to
experts, the idea of altruistic surrogacy has yet to take hold. A leading IVF specialist tells the
New York Times, "It is a failed idea in the West and would not be practicable in India
because of the nuances involved."

The government may avoid relying on weak regulatory systems in place by states by
outlawing a practise; but, since health is ultimately a state matter, the execution of the
legislation falls within the jurisdiction of the state machinery.

For Indian married couples who are infertile (either one or both) for a specified period of
time, a disputed clause enables them to use surrogacy. If Amar Patnaik is to be believed, the
time limit that had been decreased from five years to one before persons were allowed to use
surrogate mothers should be rescinded. He argues that making women wait is a bad idea since
many of them aren't biologically ready to have children, and others are scared of childbirth.
Finally, someone has said outright that a woman might be physiologically fit to conceive but
yet suffer from psychological illnesses like worry over having children. As with other ignored
aspects of mental health, women's fear of delivery was likely missed by politicians when the
bill was drafted. This is particularly true for women who marry late and want to have a baby
soon after.

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Isn't it hypocritical to talk just about married couples, while ignoring same-sex and
transgender couples, as well as lonely people? As long as the Indian constitution doesn't
prejudice against any particular group of individuals, why should government law
discriminate against them? Rachna, a transgender activist from Hyderabad, India, stated,
"That's unfair."

As of 2018, there were 3374 adoptions of children born in the United States, down from 5693
in 2010 and 5693 in 2011. To put it another way, it is a really unconventional way to promote
adoption. Adoption may be seriously considered by many people in such a situation, which is
fantastic. Providing a home for an orphan is a particularly noble act of kindness. However,
the true transition may take years, as a community obsessed with its own flesh and blood may
have to completely modify its attitude about adoption in order to accept it. Adopting a child
may be made much easier if more people knew about the benefits of doing so.

If commercial surrogacy is outlawed, people may be forced to go to other countries for

treatment, even if the cost is higher. India's capacity to provide surrogacy services in the
future would be influenced by state rules and how they are implemented. In order to ensure
that what is meant to provide joy to some people does not turn into a horrific experience for
others, more thought should be given to the whole process at the state level.3

The following actions are considered offences under the law and are punished accordingly:

 Performing or promoting commercial surrogacy penalty of up to 10 years in jail and a

fine of up to ten lakh rupees
 Abandoning, disowning, or exploiting a child conceived via surrogacy carries a ten-year
jail sentence and a ten-lakh rupee fine.
 Exploiting the surrogate mother carries a ten-year jail sentence and a ten-lakh-rupee fine.
 Selling, importing, or dealing in human embryos or gametes for the purpose of surrogacy
carries a ten-year jail sentence and a ten-lakh rupee fine.
 Conducting sex selection carries a ten-year jail sentence and a ten-lakh-rupee fine.

If a medical practitioner commits a violation of the Act, they might face up to five years in
jail and a fine of up to 10 Lakh Rupees It will be reported to the appropriate authorities and

3
Rhythma Kaul, “Explained: What two important bills to regulate surrogacy and ART mean for India”,
Hindustan Times, 14th December, 2021, available at https://www.hindustantimes.com/india-news/explained-
what-two-important-bills-to-regulate-surrogacy-and-art-mean-for-india-101639491683686.html.

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the State Medical Council if the same person commits a repeat offence, and his registration
will be suspended for five years.

The first offence carries a sentence of up to five years in jail and a fine of up to Rs. 5 lakhs,
while the second offence carries a sentence of up to ten years in prison and a fine of Rs. 10
lakhs.

All of the offences listed in the statute are non-bailable.

The Evolution of Feminist Views on Surrogacy

Liberal feminists support reproductive freedom and the right to engage into whatever contract
one wishes. Damage reduction and harmonisation, on the other hand, have been promoted as
measures for decreasing infertility and inequality.

Surrogacy is sold as a remedy for infertility because infertile couples face social stigma,
psychological hardship, physical stress from infertility treatments, and bodily integrity
breaches. Surrogacy, on the other hand, exposes another woman to the same set of issues:
liberty, independence, breaches in physical integrity, psychological challenges, social shame,
and jeopardises the surrogate mother's health, if not her life.

As a consequence, invading another person's dignity, integrity, or financial necessity is not a

fundamental right. Surrogacy, for example, exacerbates inequality by increasing reproductive
choices solely to the rich at the risk of others' (mostly less wealthy women's) health, liberty,
and lives, while concentrating enormous influence and power in the hands of intermediaries.
Surrogacy, according to a recent conference, does not enhance inequality in transitional
nations.

Due to a lack of awareness of pre-existing structural inequities, the impact of global

capitalism on women and girls' lives and bodies is grossly underestimated. capitalism and
globalisation re-colonize women's bodies and labour via mass migration from developed to
developing countries, as well as through selective access to reproductive biomaterial by the
affluent and infertile through global inequities and human vulnerability. People in India are
increasingly pursuing surrogacy as a kind of abuse against women as a result of women's
contextual vulnerability.

While partaking in anti-gender equity surrogacy practises, several postcolonial theorists have
found a persistent pattern of rescue narratives in media reports and intended parents' personal
experiences. Academics have drawn attention to the frequency of these rescue tales.

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Subaltern women's distress has been used to legitimise imperialistic atrocities, according to
postcolonial authors. Racist Euro-American ideologies and anti-gender equality and gender
justice activities inside social majority groups and society need to be critiqued. While
Mohanty (1986) focused on the Western-Third World feminist dichotomy, this new study
focuses on the intercultural connections between the two groups of women. Among her most
recent articles (Mohanty 2003), she emphasises the need of worldwide female cooperation in
the face of capitalism.

By exploiting existing disparities, some critics claim that capitalism has recolonized women's
bodies and labour in unexpected ways. For this reason, any study of globalisation must
include the difficulties and experiences of women from low-income and under-represented
groups of society. The Global Movement for Reproductive Life Changes, an umbrella phrase
for this transnational shift from the one-third to the two-third world, preys on the
vulnerability of two-thirds of the world's population. Scholars of feminism have long
recognised the significance of international feminism, and the concept is not new (Fernandes
2013; Mohanty 2013; Gupta 2006). Academics in postcolonial studies are examining
intersectionality as a way to challenge injustice and overcome geographical barriers.

Proliferative justice is needed to reduce inequalities by acknowledging all communities' past

and present experiences of reproductive oppression and addressing a wide range of
discriminatory factors, such as immigration status, age, physical or mental ability and sexual
orientation as they relate to race or class. Feminist solidarity must be created across borders
of place, belief, labour, class, and identity in order to recognise and oppose inequities. 4

Even if it is challenging to establish a global feminist alliance, it has grown increasingly

important. Such an alliance should aim to remove any obstacles that stand in the way of
women's entire growth and development. According to Aristotle, female solidarity is a
"fellow in virtue and a companion in action" (Tong 2009: 236).

4
Karen Busby and Delaney Vun, "Revisiting the Handmaid's Tale: Feminist Theory Meets Empirical Research
on Surrogate Mothers", 26:1, Can J Fam L 13 (2010).

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 The Indian Contract Act
The Indian Contract Act of 1872 governs surrogacy agreements in India. A proposal,
acceptance, unlimited authorization, legal purpose, and lawful consideration are all
components of a feasible contract that have not been specifically deemed unlawful.

In a surrogacy partnership, consent is a difficult notion to understand. The following are the
key components that must be addressed in light of Indian Contract Act 1872 Sections 13, 16,
and 19A: 

1. "Is the surrogate actually capable of providing consent in light of the nature of the
situation?"

2. "Is the consent of the spouse of the surrogate (if married) should be necessary for a valid
surrogacy agreement?"

3. "Does economic duress, much like in the district of Anand amount to a violation of free
consent?

To address the first question, pregnancy is a natural scenario in which any woman is likely to
develop feelings for the kid developing inside her, which might result in a "change of heart."
This is to define consent as "informed consent," which requires the consenting party to
comprehend the implications of the contract. Motherhood is not a concept that can be fully
appreciated before becoming pregnant or raising a kid. "Under the contract, the natural
mother is irrevocably committed before she comprehends the intensity of her bond to her
child," the New Jersey Supreme Court said in the Baby M case. Her decisions are never
completely voluntary and informed because any decision prior to the baby's birth is clearly
ill-informed, and any decision afterward, compelled by pre-existing contractual obligations,
the threat of lawsuits, and the inducement of a $10,000 payment, is anything but completely
voluntary."

As a result, the issue becomes whether or whether acceptance to such an arrangement is

voluntary or free, and if so, under what conditions. In the case of the second issue, spousal
permission for a woman to participate as a surrogate, there is a substantial possibility of
undue influence under section 16 of the Indian Contract Act 1872, since any husband is in a
position to influence their wife's choice. Another point of debate in the case is whether the
husband's permission is required. While one may argue that the right to reproduce is a
fundamental human right, one could also argue that the ability to choose with whom to

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procreate is a limitation on that right. However, in a marital institution, how would this
privilege be managed or amended? Would the woman have total physical autonomy
independent of her husband's wish to participate in surrogacy, or would the spouse have a
legal right to agree to such surrogacy?

A woman's right to choose her own health care and medical treatment decisions, including
her own reproductive health and sexuality, is guaranteed under the Convention on the
Elimination of All Forms of Discrimination Against Women's Articles 12 and 16. (1978).
However, in Ghosh v Ghosh, the Supreme Court of India found that ignoring a spouse's
permission in reproductive concerns such as sterilisation or the choice not to have children
would be "mental cruelty." As a result, when a spouse marries without the agreement of their
partner, their reproductive autonomy is limited. Using the same rationale, there is a
compelling argument to be made that a surrogacy arrangement does not need the husband's
assent. To respond to the third argument, it is necessary to review the basic principles of
common law contract law, which show that economic pressure may constitute a breach of a
party's consent, thereby breaking section 13 of the Indian Contract Act 1872.

The majority of surrogates in Gujarat's Anand district are low-income women earning as little
as Rs. 2000 a month. When there seems to be an inherent disparity in the negotiating power
of the parties, and economic hardship might easily explain for this disparity, the presumption
of law applies. Further legal penalties may be applied if it is shown that the authorization was
not freely provided. Should the surrogate be allowed to end the pregnancy in line with the
Medical and Termination of Pregnancy Act of 1971? Other surrogacy rights must be
regulated by law in order to safeguard the interests of our country's women from exploitation
by affluent and foreign nationals who can afford to pay for less costly surrogacy
arrangements, which may cost as low as one-third of the cost in Western nations.5

Legal Enforceability of Surrogacy Agreements

Despite the fact that surrogacy is a widespread technique of childbirth in India, the practise
remains unregulated. Couples' surrogacy agreements serve as the only way of regulating this
situation. To be upheld in a court of law, these contracts must be lawful under the Indian
Contract Act of 1872. In the context of altruistic surrogacy agreements, it is feasible to
determine that all of the legal contract's standards have not been satisfied. An altruistic
surrogacy contract may or may not be legal, depending on the specifics of the case.

5
Samyutha Samudrala, "Altruistic Surrogacy Contracts: Legal Analysis of the Surrogacy (Regulation) Bill,
2019 and its Legal Implications", Volume 09, Number 1, CULJ (2020).

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Importantly, the 1872 Indian Contract Act's core prerequisites for allowing altruistic
surrogacy agreements must be amended. This may not be possible, however, due to the
considerable impact on a wide range of other transactions that revisions to present contract
law would have. Laws that exclusively dealt with surrogacy and contracts were opened up as
a result of this. There is no mechanism for enforcing altruistic surrogacy contracts under the
current legislation, which oversees the surrogacy process. Altruistic surrogacy agreements
and basic contract standards must be balanced under the new legislation. Transactions must
be freely agreed to, although contemplation is not required. Single parents and homosexual
couples should also be included by the legislation, and prospective parents' competency
should be re-evaluated. Other legislation, such as the Medical Termination of Pregnancy Act
of 1971 and the 1963 Specific Relief Act, need to be modified as well. Pregnancy termination
should be based on the will of the intended parents or a violation of the surrogacy contract,
and altruistic surrogacy contracts should be included to the list of instances in which
exceptional performance may be granted. Even the court was hesitant to adopt a position
because of the absence of clear legislation. The current bill has a number of faults that the
newly created committee must fix.  After a vote, the court will be required to delete the Act
via its judicial review power if there are no amendments made. As a result, legislation
governing surrogacy and surrogacy contracts is required.

Understanding the Text: The 2008 ART Bill recognises the agreement's legal
enforceability. Surrogacy agreements, like any other contract, would be regulated by the
Indian Contract Act of 1872. Surrogacy, which allows an infertile couple to enjoy their
reproductive rights, will be protected if the Constitution safeguards reproductive rights.
However, different authorities in different nations have adopted differing positions on the
legality of surrogacy. The agreement's legal enforceability is recognised by the 2008 Bill.
Surrogacy agreements, like any other contract, would be regulated by the Indian Contract Act
of 1872. The Legal Status of Surrogacy plainly reveals, as stated in the aforementioned law
commission investigation, that the lack of legislation does not make any activity unlawful. It
also highlights the importance of guidelines as a regulatory tool in legal practise.6

6
Council For Social Development, Report: A Study to Understand the Legal Rights and Challenges of
Surrogates From Mumbai and Delhi (National Human Rights Commission, 2018).

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 Cross-Jurisdictional Analysis:
A Look at Surrogacy in the UK, USA, and Canada
No evidence has been discovered to support assertions that surrogate mothers are exploited,
incapable of providing meaningful consent or that the arrangements commodify women or
children in studies conducted in the UK and the United States, among other things. In
contrast to financial incentives, most participants are motivated by the desire to aid a
childless couple, to do something unusual, or to make a distinctive contribution to society.
Some women, naturally, are disappointed with the procedure and have been accused of being
manipulated by agencies and commissioning parents. A majority of surrogate mothers,
according to research, do so voluntarily and with full knowledge of the dangers they face, and
they seldom express regret.

It is possible for them to build strong relationships with the commissioning parents both
during and after the birth of their child. Over the last two decades, surrogate mothers and
commissioning parents have only declined to birth and adopt their children a handful of
times, respectively. According to what we do know, the children who were born as a
consequence of these arrangements are doing OK. Women who engage into surrogacy
agreements without access to adequate information and help run into problems when they are
unable to choose the intended parents.

Surrogacy regulations in Canada may make it even more difficult for women considering
surrogacy to get all of the information they need to make an educated choice, even while the
scope of the study is limited. These regulations don't stop Canadian citizens and non-
residents from entering into commercial surrogacy arrangements, and all signs point to this
practise spreading in the future. A criminal prohibition on commercial surrogacy agreements
in Canada should be replaced by a system that safeguards surrogates and their children from
abuse or objectification for financial gain, according to these findings.7

Landmark Judgements and Recent Developments in India

Newborn Manji Yamada v Union of India, the Supreme Court ruled that a father who
divorced his wife during the gestation phase of a surrogate baby's pregnancy had no claim to
custody of the child. An appeals court recognised the Surrogacy Agreement's legitimacy,
finding that the child's biological father had the right to custody, and ordered the government

7
Alexandra Holmstrom-Smith, "Free Market Feminism: Re-Reconsidering Surrogacy", Volume 24, Number 3,
JLSC (2021).

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to grant a passport to Manji Yamada, who returned to Japan with her grandmother, who had
petitioned the Supreme Court.

In Jan Balaz v. Municipality of Anand, the Gujarat High Court examined surrogacy and
citizenship. When it came to surrogacy, a German couple had twins thanks to an Indian lady.
For legal reasons, German authorities were uninterested in granting citizenship to the children
born via surrogacy. Due to their non-Indian citizenship and hence their inability to get an
Indian passport under the Indian Passport Act, the biological father, Jan Balaz, sought for
Indian passports for the two kids. Section 3(1)(c)(ii) of the Citizenship Act deemed the
children to be Indian citizens since they were born in India to an Indian surrogate mother in
the country of their origin. Later, they received Indian passports that allowed them to travel
outside of India, and German courts allowed them to seek adoption of the children.

In P. Geetha vs. The Kerala Livestock Development Board, the Kerala High Court ruled on a
female employee's right to maternity leave for child care when the kid is delivered via
surrogacy. The petitioner claimed maternity leave as both the intended and genetic mother
while working at the Kerala Livestock Development Board. Because the employee's
pregnancy and birth occurred outside of "normal circumstances," the Board refused her
maternity leave, citing the Limited Staff Rules and Regulations. The Kerala High Court
overturned this incorrect rationale and discriminatory practise, granting the petitioner child
care leave. The Court acknowledged and legalised technologically improved means of
achieving parenthood.8

Observations and Recommendations

A. Bodily Autonomy

Feminists have long advocated that the pregnant woman should make the final choice
because it respects her bodily autonomy, even if most people recognise that potential fathers
(and others) may be interested in the result of a pregnancy. A feminist case for primary
parental rights may be made using this reasoning, even if there are additional claims based on
genetics and/or intention. In spite of the fact that the baby is no longer physically a part of the
woman's body after the pregnancy, the woman's body's intimate involvement in bringing the
baby into life should not be overlooked, An emotional link between the mother and her
unborn child is a natural result of prolonged physical contact during pregnancy. Forcing a kid

8
Dr D. Radhika Yadav and Pavan Kasturi, “A Comprehensive Analysis on Reproductive Health and Surrogacy
in India: A Study on the Law, Policy, and Practice”, SCCOnline, 27th September, 2021, available at
https://www.scconline.com/blog/post/2021/09/27/reproductive-health-and-surrogacy-in-india/.

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to be separated from his or her parents generates a special type of pain. There should be no
harm done to unborn infants because of gestators who can communicate with them at all
times. Other parental claims based on genetics, intent, or a later-acquired link might be
recognised under this framework. Parents who aren't pregnant will have the same parental
rights as pregnant parents if this is recognised. No parental rights may be asserted against the
gestating mother by using this criterion, which is only an assurance.

B. Reproductive Justice

The focus on parental rights by the Reproductive Justice movement as a part of reproductive
freedom gives another lens through which to assess the need of maintaining parental rights.
In the words of the SisterSong collective, "Reproductive Justice is the human right to
preserve personal bodily autonomy, to have or not to have children, and to raise our children
in safe and sustainable communities." When black women were dissatisfied with mainstream
feminisms notion of "Reproductive Rights," they formed the Reproductive Justice movement.
Women's freedom to choose whether or not to have children was largely ignored by the
mainstream feminist movement, which instead focused only on the right to abortion. An
affiliate group of SisterSong has widened the topic to include how population control,
sterilisation abuse, high-risk contraception and the impact of pollution on fertility have
impacted the reproductive lives of women in developing countries (including women of
colour in the first world).

It's no surprise, however, that the right to parenting has always been central to this
movement, given the United States' history of commodifying and selling enslaved women's
children. From compulsory boarding school enrolment to out-of-community adoptions
necessitating the Indian Child Welfare Act to the Trump administration's family separation
policy, Native children have faced a similar denial of parental rights. As a result, even if
society and the courts do not see the gestator as the most desirable or desired parent, it is vital
to defend the parental rights of all gestators. As an illustration of this, consider the practise of
surrogacy.

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 C. Limiting Commodification

In addition, granting surrogates the freedom to withdraw from contracts may result in
intended parents experiencing more risk and expense as a result of the surrogacy process. It
may become less popular as a result, and the industry's earnings may suffer as a result of the
decrease in popularity. There would be a decline in the commodity of kids and the
monetization of women's reproductive work if commercial surrogacy became less frequent.
Thus, as we have argued, this would be a positive development from the standpoint of social
justice.9

Conclusion
Reproductive tourism, which generates foreign revenue, is what's holding up the passage of
surrogacy regulations in India since the fertility of Indian women contemplating it has
become a global commodity. Commercial efforts to keep the industry afloat have overlooked
a more pressing issue. Proper regulation, rather than outright prohibition, may be able to
prevent future exploitation and the formation of illegal markets. It is time for us to wake up
from our slumber and develop a new path that is regulated and enforced to the fullest extent
possible.

Basic human rights and a feminist approach to policymaking should be protected by the
government. To justify a blanket ban, one must analyse the living conditions and probable
obstacles of surrogates. A surrogate mother is required to suffer the physical and emotional
difficulties of pregnancy simply out of "compassion," yet this is not feasible. This is why
we're looking at the "compensatory surrogacy model," in which parents-to-be pay to
compensate for a variety of potential losses, including those related to health, income, misery,
and mortality.

Surrogacy is a complex web of social, ethical, legal, and technical considerations. Surrogacy
is not simply a legal problem that has to be considered; it is also a social issue that needs to
be addressed in such a manner that our ethical ideals are preserved while also taking use of
developing technology. Governments must consider the interests of their constituents while
enacting such legislation. It must take into consideration surrogates' personal experiences in
order to produce best practises for surrogacy contracts that include the fewest ethical
infractions.10

9
Kristine Schanbacher, "India 's Gestational Surrogacy Market: An Exploitation of Poor, Uneducated Women",
Volume 25, Number 2, HWLJ (2014).

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States must recognise that becoming a surrogate mother is a legitimate career for certain
women who participate voluntarily. Surrogacy agencies and clinics should be strictly
controlled to avoid surrogate mothers and intended parents from being exploited. However,
since it has not yet been implemented, there is still a potential for it to grow more suitable to
the requirements of the society and the people that comprise it. Thus, Parliament should take
advantage of this chance to fulfil its commitments, to close legal gaps and deficiencies, and to
craft a complete statute free of loopholes and illegalities that can withstand court
examination.

10
Nalini Sharma, “The Surrogacy Bill and how it proposes to regulate the surrogacy market in India”, India
Today, 9th December, 2021, available at https://www.indiatoday.in/law/story/surrogacy-bill-proposes-regulate-
surrogacy-market-india-1886130-2021-12-09.

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