Note on Current Position of Surrogacy Laws in India

Commercial surrogacy is viewed to be a highly sensitive subject that causes intense

arguments in feminist literature, particularly when surrogacy is emerging in nations that are
still trying to comprehend such changes and is undertaken by indigenous women in the place
of privileged individuals. The objective of this article is to interpret and understand the
common beliefs via the narratives of surrogacy laws in India.

The major debate surrounding regulation of surrogacy has been centred on the morality of the
process and conflicting interests of the people. On one hand, it is the state’s responsibility to
preserve the interests of the unborn child and to prevent surrogate exploitation. On the other
side, is the right of women to choose their own reproductive choices, as well as the right of
individuals to parenting. Surrogacy law in India has failed to strike a balance between these
conflicting interests.

According to the reports, couples seeking surrogacy are increasingly travelling to India to
have their baby delivered by a surrogate mother where the process is considered to be easy,
cheap and hassle free. India was considered as the most popular destination for commercial
and transnational surrogacy, given the high rate of illiteracy and poverty with an estimate of
more than 12,000 babies born through transnational surrogacy in India.

On December 2018, India passed Surrogacy (Regulation) Bill 2016 to prohibit transnational
and commercial surrogacy. It banned commercial surrogacy and permitted only altruistic
surrogacy thus preventing the surrogate from availing monetary compensation for her
services. Such a restriction continues to adopt a needs-based approach rather than a rights-
based approach, thereby failing to give women the autonomy they deserve in making
reproductive choices and reinforces traditional societal values of women’s work in the private
sphere having no economic value which sparked outrage in various sections of the society.

Commercial surrogacy was legalised in India in 2002, as part of the country's drive to
promote the medical industry in order to generate income. But during that time, surrogacy
was entirely unregulated, the cost of surrogacy clinics was low and a large supply of poor
women were willing to provide this service even though it did not have basic statutory basis
in the Indian legal landscape. However, the women who chose to become surrogates were
subjected to exploitation, poor living conditions, and unethical treatment. It was only after the
controversial case of  Baby Manji Yamada v. Union of India, that the ethical side of
commercial surrogacy came into public scrutiny.

In violation of the Indian Council of Medical Research (ICMR) guidelines, the medical
industry in India continued with the unregulated practices. The combination of profit-driven
clinics and financially desperate surrogates has raised serious concerns about the standard of
ethics, morality in India, regarding the treatment of surrogate mothers.

The Surrogacy Regulation Bill of 2019, ignored the recommendations of the Parliamentary
Committee, and introduced an exact replica of the 2016 Bill. It recommended deleting the
clause which ‘infertility’ and required a five-year waiting period before issuance of an
infertility certificate, thereby making access to surrogacy easier. It also recommended
deleting the clause which only allowed for close relatives (undefined) of the intended parents
to act as altruistic surrogates saying that women have no say in the process. Once again, the
Bill was not passed by the Rajya Sabha, and a Select Committee was formed to recommend
changes to the legislation. Though the Bill is a significant improvement to the Surrogacy
(Regulation) Bill, 2019, it tends to “ignore the ground reality of most Indian women with
little decision-making authority”.

The proposed Bill also stipulates that LGBTQ+ families, single parents, unmarried couples,
foreign citizens and people outside the age groups of 23-50 for females and 26-55 for men are
not permitted to seek surrogacy. Moreover, surrogate women need to be between the ages of
25 and 35 and can only be surrogates once but there is no prohibition on these classes of
persons adopting a child.

In the aforementioned turn of events, Indian Parliament introduced a new legislation on

Assisted Reproductive Technology (ART) that would result in better regulation and
monitoring of this growing practice. The Bill was intended to "regulate" and "supervise"
assisted reproductive technology (ART) facilities and surrogacy, as well as to discourage
unethical practices such as sex selection and surrogate mother exploitation, by imposing both
monetary penalties and jail sentences for violations.

The need of the hour is to recognize surrogacy as a ‘right’ and not a ‘need’. The moral
grounds for making surrogacy a last resort are outdated. Denying women, the right to avail of
surrogacy by saying the “joy of bearing one’s own child cannot be compared to having one
through surrogacy” reeks of patriarchal mores. When placed in a rights-based discourse, the
State becomes obligated to play a crucial role in furthering reproductive rights and freedoms
so as to improve reproductive health as well as the health of the child. Despite changes in the
Indian legal framework, surrogacy continues to challenge gender norms, particularly in
poor nations where the practise is gaining momentum.

References

Parliament, (2016). The Surrogacy (Regulation) Bill, 2016. India: Government of India (Bill No. 257 of 2016)

Parliament, (2019). The Surrogacy (Regulation) Bill, 2019. India: Government of India (Bill No. 156 of 2019)

PRS Legislative Research, (2020). Report of the Select Committee on the Surrogacy (Regulation) Bill, 2019.
Available at:
 https://www.prsindia.org/sites/default/files/bill_files/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf  

PRS Legislative Research, (2016). One Hundred Second Report on the Surrogacy (Regulation) Bill, 2016 at:
http://164.100.47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf  

“India Outlawed Commercial Surrogacy – Clinics Are Finding Loopholes”. The Conversation, accessed 28
April 2019, https://theconversation.com/india-outlawed-commercial-surrogacy-clinics-are-finding-loopholes-
81784.