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Ban on Commercial Surrogacy in India

This paper talks about surrogacy but more emphasis is given to commercial surrogacy, its impact on society as a whole, and the ban on commercial surrogacy in India due to some of its unregulated laws, legislations, and unethical practices followed by many firms for exploitation and how this ban is impacting the livelihood of many women in a negative way who worked as surrogates.

This paper also talks about how globalization and industrialization are leading to an increase in the market of surrogacy and the negative impacts of legislation that are unregulated and are not taken into consideration or followed. The main focus of this paper is on the ban on commercial surrogacy in India due to its ill effects on society as a whole.

India has a vast market for surrogacy and it is popular amongst intended parents in nations with rapid changes in society. The increase in industrialization and globalization is also giving rise to more and more markets for surrogacy all over the world but here we are going to talk about surrogacy in India.

The first question that arises in our mind is [1]'what is surrogacy?' surrogacy is an agreement between two parties where a woman consents to carry a child in her womb either altruistically or for financial gains for the couple who is not able to conceive because of some medical issues, personal choice or infertility of one or both the parents.

Surrogacy is an intrinsic and complicated process where it is important for the intending parents and the surrogate mother to make the right choice and then carry on with the process of surrogacy because this process not just has advantages but also has many limitations. Though surrogacy is seen as the modern concept of Assisted Reproductive Technology (ART), it is an ancient practice. Its idea has existed for thousands of years but new technologies have started emerging within the past 60 years or so.

Earlier, surrogacies were completed in a traditional manner. Traditional surrogacy was such that it required sexual intercourse or artificial insemination as there was no existence of Assisted Reproductive Technologies. The child born out of these traditional methods where not related to the intending parents genetically. The first mention of surrogacy is seen in a book named [2]"THE BOOK OF GENESIS" where a couple named Sarah and Abraham were unable to conceive a child and Sarah enlisted her servant named Hagar to carry her husband's child so she could raise that child as her own.

This was somewhat the start of the concept of surrogacy. The second method through which surrogacy is performed is through the gestation process which is also known as full surrogacy. It is carried out by implanting the embryo which is created through in vitro fertilization in the surrogate. The second thing which comes to our mind is [3]'What is commercial surrogacy?' so here is the explanation, commercial surrogacy is when the surrogate mother not just accepts the expenses of the pregnancy but also accepts compensation outside reimbursement.

Due to this reason, commercial surrogacy is also known as compensated surrogacy. Apart from commercial surrogacy, there is altruistic surrogacy where there is no compensation outside the reimbursement. It is done in good faith. In this essay more emphasis would be given to commercial surrogacy, its impact on society as a whole, and the ban on commercial surrogacy in India due to some of its unregulated laws, legislations, and unethical practices followed by many firms for exploitation and how this ban is impacting the livelihood of many women in a negative way who worked as surrogates.

Legalization of commercial surrogacy in India
The legalization of surrogacy is different and varies all around the world. Some countries have legislations which are improper or unregulated and some countries don't have any laws regarding surrogacy and its implications.

[4]The practice of commercial surrogacy was legalized in India in the year 2002 by the Union Cabinet as the demand for surrogacy was rapidly increasing in India and no one was aware of the negative consequences which would come up in the society as well as in this market of surrogacy after legalizing commercial surrogacy.

There was also a growth of many firms and organizations which claimed that they had specialization in the surrogacy law of India and they assisted, guided, and helped foreign tourists who intended to get a child with this process of surrogacy. Some agencies had specialization but some were just earning profit through the same.

The legalization of commercial surrogacy had multiple negative consequences for the intended parents as well as the surrogate mothers and the whole of society. It was legalized to promote medical tourism which made India a hub of surrogacy gradually and led to an increase of foreign tourists who came from different parts of the world. The legalization of commercial surrogacy led to the immense growth of this surrogacy in India. [5]

Commercialisation of surrogacy and such a natural process of the birth of a child were now being publicized and marketed in society. Many people benefitted from the growth of surrogacy and many had to face consequences. This system of surrogacy boomed due to the easy availability of surrogates in India. The cost of surrogacy in India is minimal as compared to other countries like the US where the cost is extremely high.

Due to necessity and poor economic conditions, women consented to become surrogate mothers for intending parents at low prices so that they could maintain their livelihood and take care of their families with the help of the money they got from the intending parents. Many unregulated legislations led to unethical practices such as the surrogate mothers being prescribed many drugs before conceiving the child which was very dangerous for their health and well-being, society thought of and still thinks of such women as bad for society, and their dignity as questioned, they are morally being degraded and criticized by society, etc. [6]

The agencies which regulated commercial surrogacy profited from such unethical practices, surrogate mothers were exploited, children born out of surrogacy were abandoned, many rackets like that of organ trade and human trafficking developed, etc. These unethical practices were creating havoc in society and it was giving jitters to people who thought of conceiving a child through the process of surrogacy.

Improper Legislation and its impact
Due to inconsistent legislation and some improper regulations, both the intending parents and the surrogate mothers suffered and they were exploited in some or the other way by the firms and agencies who regulated surrogacy in an informal and un-regulative manner without following any rules prescribed by legislation and laws. There were many moral and ethical issues raised with regards to surrogacy in India like that of women's rights, child welfare, and biological ethics.

The surrogates were mostly poor, illiterate women from rural areas who were being pushed into these practices by their own family members due to the poor economic conditions of their families. They were forced and trafficked and didn't even have the liberty to choose what they wanted and how they wanted to live their lives.

They didn't have right over their life and body as they were being exploited by many agencies. If the child was born with some serious health issues or deformities, it was abandoned by the surrogate mother and even the intending parents refused to take care of such child due to which the child had to be left in an orphanage or the firms and agencies trafficked them and these children were also humiliated and exploited in a grave manner.

Ban of commercial surrogacy in India
[7]Commercial surrogacy was banned in India in the year 2015 due to some of its negative consequences on society, surrogate mothers, and intending parents and also due to the rise of foreigners coming to India just to get a child through surrogacy due to low costs. Some of the reasons for its ban was the commodification of the body and the child (it was available in markets at low prices for sale) where both the surrogate as well as the child were treated as commodities and were sold at very low prices, payment for the child, payment for reproductive labor, gender exploitation, human trafficking, health risks, insufficient compensation, degradation of the morality of women, etc. [8]

The 228th report of the Law Commission of India recommended the prohibition of commercial surrogacy in India due to the same reasons mentioned above. Surrogacy (Regulation) Bill which was passed in 2019 aims to regulate the industry of surrogacy.

This act bans commercial surrogacy in India and allows only altruistic surrogacy for couples who are not able to conceive a child. There are many requirements for the intending parents to get a child out of surrogacy in India. [9]The bill states that LQBTQ+ families and couples, unmarried couples, single parents, foreign citizens, and people outside the age group of 23-50 for females and 26-55 for males are not eligible to seek surrogacy.

A couple needs to be at least married for 5 years and should have certificates verifying the partner's infertility. The intending parents should be Indians as the act prohibits foreigners to get a child through surrogacy in India. Only close relatives can be altruistic surrogates for the intending parents and they should be married and have a child of their own. A woman could be a surrogate between the age of 25-35 and can only become a surrogate once.

This bill was criticized by many people due to its controversy regarding the government interfering in the personal choices of people to become a surrogate or to get a child through surrogacy and due to some of its regulations which lack the provision of altruistic surrogacy and exploitation. Commercial surrogacy did not just have negative consequences but it had some positive effects on the people who were poor and were unable to access basic necessities of life. It created a way for families with poor economic conditions to earn money and livelihood.

During the pandemic, many women opted for becoming surrogate mothers and earning money as it was a time when people were facing a shortage of money, lack of medical facilities, and basic necessities and they were even losing jobs whether it be in rural areas or urban areas. The pandemic had a terrible impact on women in rural areas and they had no other option to earn money than to become surrogate mothers.

The ban on commercial surrogacy somewhat forces women into altruistic surrogacy which should not be the case as it is a women's personal choice to do what she wants. The problem wouldn't be solved by banning commercial surrogacy completely in India. The solution to this problem is the regulation and implementation of laws that are stricter and firm. Such laws should be applied in society mandatorily for every person who wishes to opt for surrogacy. [10]Surrogate mothers who come from poor economic backgrounds are dependent on commercial surrogacy for their livelihood and income.

These women who belong to lower strata of society mostly work in the informal sector where their incomes are not permanent and they are exploited at workplaces and in small-scale industries. [11]They worked as sweepers, domestic helpers, and laborers in small-scale industries during the pandemic and earned the bare minimum for their families to get access to basic necessities. Such women who don't have any other option opt for surrogacy and carry other couple's child in their womb so that they get financially compensated for the same and get access to basic necessities such as clothing, food, shelter, etc. surrogacy changes their lives of such women as they get a chance to educate their children, provide their children with what they require in their everyday lives, build a house which is not made of straws and mud but of cement and bricks and if they face any medical emergency they have enough money to pay for the expenses incurred at the hospital or for the medical treatment, etc.

These women are criticized for being surrogate mothers and are morally degraded in society as society thinks of this concept of surrogacy as something bad and immoral. But they do this work just to earn their livelihood, raise their children and maintain their families. The ban on commercial surrogacy shows that the rights of women were not taken into account and their personal liberty was not given importance. [12]

In Suchita Shrivastava v. Chandigarh Administration, a landmark judgment, the court held that personal liberty is guaranteed under Article 21 of the constitution of India which also includes the right of women to make reproductive choices and other choices related to pregnancy, birth of the child, etc. and such rights should not be violated.

The ban on commercial surrogacy is violating the right of personal liberty of many women and putting a restriction on what choices they make. Regulations should be made such that the rights and personal liberty of these women are not violated and they are not ethically and morally criticized in society. Surrogacy is not a profession but should be treated as a profession because the lives of lakhs and lakhs of women is dependent on surrogacy. Surrogate mothers should be treated with care and dignity as they are the same as we are.

They are earning their livelihood in a way other people work in different professions to earn their livelihood. Every kind of work should be respected and recognized but with rules and regulations which are effective and efficient.

  2. on commercial surrogacy
  3. Surrogacy in India, By Dev, Legal Service India, E-Journal
  4. GPJ, The Indian ban on commercial surrogacy, By Manya Gupta and Shiromi Chaturvedi
  5. GPJ, The Indian ban on commercial surrogacy, By Manya Gupta and Shiromi Chaturvedi
  7. GPJ, The Indian ban on commercial surrogacy, By Manya Gupta and Shiromi Chaturvedi
  9., article by Meenal Sharma
  10. NEHA THIRANI BAGRI/ANAND, A Controversial Ban on Commercial Surrogacy could leave Women in India with even fewer Choices, 2021

Written By: Mandvi Khangarot,
BA.LLB Hons - Institute of Law, Nirma University

Award Winning Article Is Written By: Ms.Mandvi Khangarot
Awarded certificate of Excellence
Authentication No: AG323521648389-23-0823

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