EMPOWERING WOMEN AND ENSURING ETHICAL PRACTICES

RELATED TO SURROGACY IN INDIA

Introduction

Surrogacy regulation in India represents a pivotal milestone in the journey

towards empowering women and ensuring ethical practices in reproductive
assistance. The emergence of surrogacy as a prominent industry brought with it
a host of challenges, including concerns over the exploitation of surrogate
mothers, ambiguity in legal frameworks, and ethical dilemmas surrounding the
commodification of reproduction. Recognizing the urgent need for
comprehensive regulation, India embarked on a transformative process aimed at
safeguarding the rights and dignity of all parties involved. This introduction
provides an overview of the regulatory framework in India, highlighting its dual
objectives of empowering women and upholding ethical standards in surrogacy
practices. Through a nuanced examination of the regulatory landscape, we delve
into the mechanisms established to address exploitation, promote autonomy,
and ensure the welfare of surrogate mothers, while also scrutinizing the ethical
considerations underpinning surrogacy arrangements. By exploring the
intersection of law, ethics, and reproductive rights, this study sheds light on the
evolving landscape of surrogacy regulation in India and its broader implications
for women's empowerment and ethical governance in assisted reproductive
technologies.

Surrogacy and its types

Surrogacy is a reproductive practice where a woman, known as the surrogate,

carries a child for another individual or couple, known as the intended parents.
The word ‘surrogate’ means ‘substitute’.Surrogacy can be a viable option for
individuals or couples who are unable to conceive or carry a pregnancy to term
due to various reasons, such as infertility, medical conditions, or same-sex
couples wishing to have a biological child.

There are several types of surrogacy:

i) Traditional/natural/partial surrogacy: The first type

of surrogacy arrangement is “traditional surrogacy” or “complete surrogacy” in
which the eggs of the surrogate mother are used in the conception of the child.
In this process, the child is genetically related to the surrogate and hence the
surrogate is practically considered as the biological mother. The process
through which the baby is conceived is called “artificial insemination”.

(ii) Gestational surrogacy: In this, the wife is fertile but incapable of carrying
a growing foetus; the child is conceived by “in vitro fertilisation” (IVF) using
the wife’s eggs and her husband’s sperm, the obtained embryo is embedded in
the surrogate mother’s uterus. Apart from this, there are different arrangements
through which surrogacy is being practised:

(iii) 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. Altruistic surrogacy can be titled as
“women helping women”, where the surrogate agrees to help the couple by
giving birth to the child without any consideration.

(iv) Commercial surrogacy: Where the surrogate mother is paid over and
above the necessary medical expenses or when surrogate mother receives a
financial reward for her pregnancy or the relinquishment of the child (besides
medical and other reasonable expenses), usually according to a pre-decided
liquidated agreement, it is termed as “commercial surrogacy”..

Reproductive tourism
Reproductive tourism refers to the travel to seek commercially provided assisted
reproductive technologies (ARTs), such as in vitro fertilization, pre-
implantation genetic diagnosis, and gamete procurement. India has become a
major global destination for this type of tourism, with surrogacy estimated to be
worth $400 million annually. India's 3000 speciality clinics generate around
$400 million annually. Previously, India was the top destination for commercial
surrogacy, with the main customers being infertile couples, heterosexual
couples, homosexuals, incapacitated and handicapped people, and elderly
couples. Surrogacy tourism has been a lucrative business for Indian medical
tourism, potentially generating foreign exchange earnings for the country.

Ethical and moral issues around surrogacy...

Surrogacy in India is a controversial practice that involves the adoption of a

child from a woman's womb. Critics argue that commercial surrogacy is
immoral, as it exploits the emotional bond between the biological mother and
the child. The emotional bond between the mother and child is strong, and
surrogate motherhood is unnatural and immoral. The biological child is often
neglected, and the mother's trauma is not considered. Ethical considerations
include the child's rights to know the surrogate, the emotional aspects of the
surrogate mother, social isolation, and outcasting. The conditions faced by
surrogates are worse and unethical, as illiterate poor women from rural
backgrounds are often induced into such deals for easy money. Surrogacy is
sardonic, as nearly 12 million Indian children are orphans. Adoption in India is
a complicated and lengthy procedure for childless couples who want to provide
a home for these children.

Surrogacy practice in India

Gestational surrogacy is the only legally recognized form of surrogacy in India.

In this type of surrogacy, the surrogate mother carries an embryo created using
the intended parents' donated egg and the father's sperm through in-vitro
fertilization (IVF).

Gestational surrogacy differs from commercial surrogacy, which involves the

intrauterine insemination of the surrogate mother, allowing the embryo to
develop in her womb without any egg retrieval treatment from the surrogate's
body.

In 2015, the Indian government imposed a ban on commercial surrogacy due to

the widespread exploitation of women who served as surrogates. These women
were often subjected to repeated surrogacy cycles and inadequate treatment.
Additionally, there was a lack of regulation regarding the post-delivery care of
the surrogate mothers, and they could be coerced into selling their wombs by
their family members. The ban was prompted by various psychological, ethical,
moral, medical, and legal concerns surrounding the practice of commercial
surrogacy.
Laws Governing Surrogacy In India

Commercial surrogacy in India has been legal since 2002, with the Indian
Council of Medical Research predicting a 6 billion dollar growth by 2018.
Surrogacy is a thriving part of the Indian medical industry due to lower costs
and availability of surrogate mothers.
However, the Ministry of Health and Family Welfare introduced the
Surrogacy (Regulation) Bill, 2020, to prohibit altruistic surrogacy. The Indian
Council of Medical Research Guidelines in 2005 regulate the practice of
surrogacy without a codified law. Low-income Indian women are often sold for
their reproductive potential due to financial weakness and cheap labor. Ethical
guidelines emphasize contractual agreements, privacy, consent, and support for
surrogate mothers.
The Supreme Court in 2008, in Manji Yamada v. Union of India25, formally
recognised commercial surrogacy and pointed out the need for the law
governing surrogacy in India, as the money-making racket is being perpetuated
in various parts of India. This task was given to the National Commission for
the Protection of Child Rights....
In 2009, the Law Commission of India recommended prohibiting commercial
surrogacy and allowing altruistic surrogacy due to concerns over foreign
surrogacy and lack of legal framework. This led to ill-treatment of surrogate
mothers, often due to poverty and lack of education. In 2012, an Australian
couple abandoned a surrogate child due to Down syndrome, and in 2014, a 23-
year-old died after an egg donation procedure at an IVF clinic. In 2015,
Advocate Jayashree Wad filed a public interest litigation in the Supreme Court,
seeking the prohibition of commercial surrogacy, which sparked public opinion
and pressured the government to pass legislation.
The Surrogacy (Regulation) Bill, 2016 was introduced in Parliament in 2016 to
establish national and state-level surrogacy boards. It allowed only heterosexual
Indian couples legally married for five years to benefit from surrogacy, with
proven fertility certified by a recognized medical doctor. The bill also banned
foreigners, live-in partners, unmarried couples, overseas Indians, single parents,
live-in partners, and gay couples from commissioning surrogacy. However, the
bill lapsed in the Rajya Sabha and was sent to the Parliamentary Standing
Committee. The government called the bill "need of the hour" in 2019, citing an
estimated 2000 to 3000 unregulated clinics operating in India.
Key Provisions Of Surrogacy (Regulation) Bill, 2016

The Surrogacy law Bill has legalized the surrogacy process in India. Section 2
mandates that surrogate mothers receive all payments, including fees, charges,
remunerations, and incentives, excluding medical expenses and insurance
coverage. The bill also sets a minimum age requirement for couples, with male
partners at least 21 and female partners at least 18 years old. Section 3 requires
surrogacy clinics to be registered with the government or specified bodies, and
advertising for commercial surrogacy is strictly prohibited. Abortion procedures
must adhere to the Medical Termination of Pregnancy Act of 1971, and
unauthorized storage of human gametes or embryos is subject to penalties. The
bill designates the appropriate authority to issue an eligibility certificate to the
surrogate mother, provided she meets certain conditions, including being
married, having a biological child, undergoing surrogacy only once, and
possessing necessary medical and psychological fitness certificates. The act
permits only Indian citizens to undergo surrogacy, while non-resident Indians,
PIOs, foreigners, single parents, and transgender individuals are not allowed to
pursue surrogacy.

Constitution Of Various Authorities

The act establishes several authorities in the form of boards, namely the
National Surrogacy Board and State Surrogacy Boards.

The National Surrogacy Board, constituted by the Central Government, and the
State Surrogacy Boards, constituted by the respective State Governments, have
the responsibility of advising the central and state governments on surrogacy
policies. They are also responsible for formulating rules and a code of conduct
for surrogacy clinics and practitioners. Additionally, these boards supervise the
subsidiary bodies operating under the provisions of the act.

Surrogacy (Regulation) Act, 2021- Provisions and challenges

Provisions:

o Under the Surrogacy (Regulation) Act, 2021, a woman who is a

widow or a divorcee between the age of 35 to 45 years or a
 couple, defined as a legally married woman and man, can avail of
surrogacy if they have a medical condition necessitating this option.

 The intended couple shall be a legally married Indian man and

woman, the man shall be between the ages of 26-55 years and
the woman shall be between the ages of 25-50 years, and
shall not have any previous biological, adopted, or surrogate
child.

o It also bans commercial surrogacy, which is punishable with a jail

term of 10 years and a fine of up to Rs 10 lakhs.

o The law allows only altruistic surrogacy where no money exchanges

hands and where a surrogate mother is genetically related to those
seeking a child.

Challenges:

o Exploitation of the Surrogate and the Child: The banning of

commercial surrogacy moves from the rights-based approach to
a needs-based approach, thus removing the women’s
autonomy to make their own reproductive decisions and right
to parenthood. One could argue that the state must stop the
exploitation of poor women under surrogacy and protect the
child’s right to be born. However, the current Act fails to
balance these two interests.

o Reinforces Patriarchal Norms: The Act reinforces traditional

patriarchal norms of our society that attributes no economic
value to women’s work and, directly affecting the fundamental
rights of the women to reproduce under Article 21 of the
constitution.
 o Emotional Complications: In altruistic surrogacy, a friend or
relative as a surrogate mother may lead to emotional
complications not only for the intending parents but also for
the surrogate child as there is great deal of risking the
relationship in the course of surrogacy period and post birth.

 Altruistic surrogacy also limits the option of the

intending couple in choosing a surrogate mother as very
limited relatives will be ready to undergo the process.

o No Third-Party Involvement: In an altruistic surrogacy, there

is no third-party involvement. A third-party involvement ensures
that the intended couple will bear and support the
medical and other miscellaneous expenses during the surrogacy
process.

 Overall, a third party helps both the intended couple and

the surrogate mother navigate through the complex
process, which may not be possible in the case of
altruistic surrogacy.

o Some Exclusion from Availing Surrogacy Services:

 There is exclusion of unmarried women, single men,

live-in partners, and same-sex couples from availing
surrogacy services.

 This amounts to discrimination based on marital

status, gender, and sexual orientation, and denies them
the right to form a family of their choice.

Empowering Women:
 Central to the regulation of surrogacy in India is the empowerment of women,
particularly surrogate mothers. Prior to regulation, many surrogate mothers
faced exploitation, inadequate compensation, and limited legal protections. The
new regulatory framework aims to rectify these disparities by establishing
guidelines that prioritize the well-being and rights of surrogate mothers. This
includes ensuring fair compensation, access to healthcare, and legal recognition
of their role in the surrogacy process. By empowering women, the regulation
seeks to transform surrogacy into a more equitable and dignified experience for
all involved. The regulatory framework introduced aimed to address these
issues and empower women in several ways:

1. Legal Protections: The regulation of surrogacy in India provided legal

protections for surrogate mothers, ensuring that they have rights and are not
exploited or coerced into surrogacy agreements. Surrogacy contracts must now
adhere to legal guidelines, safeguarding the interests of the surrogate mother
and outlining her rights and responsibilities.
2. Healthcare Access: Empowering women in surrogacy involves ensuring that
surrogate mothers have access to comprehensive healthcare throughout the
pregnancy and childbirth process. The regulatory framework mandates that
intended parents cover all medical expenses related to the surrogacy, including
prenatal care, delivery, and any necessary medical interventions. This ensures
that surrogate mothers receive proper medical care and support, promoting their
health and well-being.
3. Fair Compensation: The regulation of surrogacy in India stipulates that
surrogate mothers must receive fair and reasonable compensation for their role
in the surrogacy arrangement. While commercial surrogacy is banned, surrogate
mothers are entitled to reimbursement for medical expenses, as well as
compensation for their time, effort, and the physical risks associated with
 pregnancy and childbirth. This ensures that surrogate mothers are not
financially exploited and are adequately compensated for their contribution.
4. Informed Consent and Counseling: Empowering women in surrogacy
involves ensuring that surrogate mothers are fully informed about the risks,
benefits, and implications of participating in a surrogacy arrangement. The
regulatory framework mandates that surrogate mothers undergo counseling and
provide informed consent before entering into a surrogacy agreement. This
ensures that surrogate mothers are aware of their rights, understand the
surrogacy process, and make informed decisions about their involvement.
5. Recognition and Respect: Empowering women in surrogacy involves
recognizing and respecting the agency and autonomy of surrogate mothers. The
regulatory framework acknowledges the important role that surrogate mothers
play in helping others achieve parenthood and ensures that they are treated with
dignity, respect, and recognition for their contribution.

Commercial surrogacy and way forward...

The growth of IVF clinics in India has led to a surge in commercial

surrogacy, which has been a subject of controversy over the past half-
century. Critics argue that this business can be professionally marketed in the
capitalistic economy, but the debate should focus on the laissez-faire
approach to the surrogacy industry, which could lead to human rights abuse,
citizenship issues, and health policy issues. The Draft Surrogacy Bill is a
crucial step in analyzing commercialization, as surrogacy is becoming a
multi-crore industry. Women's needs and interests are also at the core of this
transformative constitutional era, and the question of allowing commercial
surrogacy should be thoroughly debated. Some argue that women are finally
recognizing their capabilities and can be economically tapped, while others
argue that commercial surrogacy is financially, emotionally, ethically, and
morally exploitative. Some researchers have compared it to prostitution, as
surrogates are used for reproductive labor by taking advantage of their
sexuality. Other aspects of surrogacy include insufficient compensation, risk
of trafficking, lack of informed consent, choice restrictions, post-pregnancy
issues, and mental health. To justify a ban, the harms to surrogates must be
considered, considering their living conditions before deciding on a ban.

Constitutionality

In Gobind v. State of M.P.,[51] the Court stated that “nothing would

advance women’s welfare more than respecting their reproductive autonomy.
Such autonomy must encompass and protect the personal intimacies of
marriage, motherhood, procreation, and child-rearing”.

The Supreme Court in Suchita Srivastava v. Chandigarh Admn.[52]

observed that a woman’s right to make reproductive choices has been
interpreted as a dimension of “personal liberty” as understood under Article
21 of the Constitution of India.

In Devika Biswas v. Union of India[53], the Supreme Court held that the
right to reproduction is an important component of the “right to life” under
Article 21. Reproductive rights of a woman include the right to carry a baby,
give birth, and raise children. Rights to privacy, dignity, and integrity are
also included. Hence, the above judgments indicate that a woman’s right to
make a reproductive choice is a part of her liberty under Article 21. A
blanket ban if applied to commercial surrogacy can deprive the right to
parenthood as not all close relatives can help a couple with surrogacy.

In Consumer Education & Research Centre v. Union of India[54], the

Supreme Court stated that the expression “life” under Article 21 of the
Constitution has a much wider meaning and includes the right to livelihood.
This was also reiterated in Olga Tellis v. Bombay Municipal Corpn.[55].
Hence, violation of the right to livelihood is another ground under Article 21.
Violation of Article 19(6)[56] can also be ground, as it gives freedom to
practise or carries on any occupation, trade, or business.

In Saghir Ahmad v. State of U.P.[57], the expression “freedom” was

interpreted as “every citizen has a right to choose his own or take up any
trade or calling”.

In B.K. Parthasarathi v. Govt. of A.P.[58], wherein the Andhra Pradesh

High Court held that State’s interference on procreation amounts to a direct
encroachment on one’s “right to privacy”. The stance of privacy was fortified
in Aadhaar judgment[59]. Hence, “woman alone should have the right to
control her body, fertility and motherhood choices”[60]. As act mandates
certificate of essentiality and eligibility to be taken from appropriate
authorities which violates the right to privacy. Furthermore, the Supreme
Court recognised transgenders as third genders in the leading case of
National Legal Services Authority v. Union of India[61]. But the Bill is
silent on providing equal rights to third genders. The grounds mentioned in
the Bill are very narrow and disentitles same-sex couples and transgenders
from commissioning surrogacy. Hence, in this transformative constitutional
era that is marching toward the ideals of liberty and equality, these loopholes
would be constitutional hurdles....

SOME LANDMARK JUDGMENTS

BABY MANJHI YAMADA v. UNION OF INDIA

In this case, a Japanese couple, Dr. Ikufumi Yamada, and his wife visited India
to have a baby through the practice of surrogacy. Then they hired an Indian
woman as a surrogate mother for their child who lived in Gujarat where this
practice was pioneered. Due to some matrimonial disputes, the couple had
divorced. But the father wanted to have custody of the child but according to
Indian law, the single father cannot adopt a girl child. So, in this case, Justice
Arijit Pasayat and Justice Mukundakan Sharma of the supreme court give the
custodial rights of the girl child to her grandmother. So, in this case, it was
analyzed that there is a need to have regulated surrogacy laws in the country.

JAN BALAZ v. ANAND MUNICIPALITY

In this case, a German couple hired a surrogate mother named Marthaben

Immanuel Khrishti who gave birth to two twins. This German couple worked in
the UK and now their two twins need an Indian passport to travel. Since the two
twins did not have citizenship because its process was litigating in the courts so,
the passport authorities did not grant passports to the twins. And in German,
there was no law for surrogacy. Supreme did not grant to give passport but
granted an exit permit to the children and German authority allow them to adopt
the children and fight for their rights.

SUCHITA SRIVASTAVA v. CHANDIGARH ADMINISTRATION

In this case, the court held that Article 21 of the constitution guaranteed the
personal liberty under which the right of women to make a reproductive choice
also lies, and along with that it also includes various other rights like Women
has the right to carry a pregnancy to its full term, to give birth, and these rights
form part of women’s right to privacy, dignity and bodily integrity.

JUSTICE K.S. PUTTASWAMY AND ANR v. UNION OF INDIA

It was held by the court that there is a violation of the right to privacy in
obtaining and showing the certificate of infertility and it is also against the
moral and ethical point of view of society to make it compulsory to have a
certificate of infertility from the district medical board and this fundamental
right has to be protected.

Recent Changes Made by the Supreme Court

 A government notification in March 2023 amended the law, banning the

use of donor gametes.
o It said “intending couples” must use their own gametes for surrogacy.
 The petition was filed in the Supreme Court challenging the amendment
as a violation of a woman’s right to parenthood.
 The Court interpreted the requirement for the child to be "genetically
related" as being related to the husband.
 The Court emphasized that the law permitting gestational surrogacy is
"woman-centric," meaning that the decision to have a surrogate child
 is based on the woman's inability to become a mother due to her
medical or congenital condition.
 The Court clarified that when Rule 14(a) of the Surrogacy Rules
Applies, which lists medical or congenital conditions that allow a woman
to opt for Gestational Surrogacy, the child must be related to the intended
couple, especially the husband.
o Gestational surrogacy is a process where one person, who did not
provide the egg used in conception, carries a fetus through
pregnancy and gives birth to a baby for another person or couple.
 The Supreme Court stayed the operation of Rule 7 of the Surrogacy
(Regulation) Act, 2021, to allow the woman suffering from the Mayer-
Rokitansky-Küster-Hauser (MRKH) Syndrome —a rare congenital
disorder that affects the female reproductive system — to undergo
surrogacy using a donor egg.
o Rule 7 of the Surrogacy Act bans use of donor eggs for the procedure.
Way forward

The Indian surrogacy industry has been delayed due to the global economic
meltdown and reproductive tourism, which generates foreign exchange.
However, this profit motive has failed to address the issue of exploitation and
illegal markets. Instead of banning surrogacy, effective regulations can
prevent further exploitation. The government should enact laws that are
incoherent with fundamental rights and cater to the feminist ethos. To justify
a blanket ban, the living conditions of surrogates must be considered. The
"altruistic model" only allows surrogate mothers to bear physical and
emotional tolls out of compassion, which is not practical. Instead, a
"compensatory surrogacy model" should be explored, where parents bear
losses in terms of health, wages, sufferings, and death.

Conclusion

Surrogacy is a complicated tangle of social, ethical, legal, and technological

issues. The matter of surrogacy is not just having legal implication to be
pondered into, but the society at large needs to look into it as a social issue
and deal with it in such a way that our ethical values are not lost and at the
same time, we also take the advantage of the growing technology.
Governments must take respective stakeholder’s consideration, which is
essential in making such laws. It must account personal experiences of
surrogates to develop best practices in surrogacy contracts with the least
ethical violations. States must understand that being a surrogate mother is an
actual legitimate profession for some women and they indulge in it willingly.
Surrogacy agents and surrogacy clinics should be regulated closely to prevent
any exploitation of surrogate mothers and intended parents. However, the
hopes remain open as it has not still enacted and thus there is still is a chance
open for it to become more conducive to the needs of the society and of the
individuals consisting of it. Hence, Parliament should utilise this opportunity
in fulfilling its obligations and fill the legal lacuna and shortcomings and
make a comprehensive law devoid of loopholes and illegalities which can
pass the test of judicial scrutiny..

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https://www.scconline.com/blog/post/2021/09/27/reproductive-health-
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judgments/
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surrogacy-law
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