The altruistic surrogacy model is based more on moralistic assumptions than
any scientific criteria and all kinds of value judgments have been injected into
it in a paternalistic manner.
The ultra-deific nature of motherhood is questioned when it is put parallel
to the service of Surrogacy.
To have a positive outlook towards this
concept the government passed The Surrogacy (Regulation) Bill, 2019 that
bought varied changes in its implementation where the Select Committee of
the Rajya Sabha, chaired by BJP MP Bhupendra Yadav had wad deliberations on
This unregulated industry had witnessed misuse of women at assorted levels
that led the government in putting a complete ban on Commercial surrogacy
through this Bill. Although the doors were kept open for Altruistic
surrogacy (where the surrogates are close relatives of the intended parents
and they do not receive any monetary compensation) for preventing women to
be exploited by wealthy hands.
A rough estimate says there are about 2,000-3000 surrogacy clinics running
illegally in the country and a few thousand foreign couples resort to surrogacy
practice within India and the whole issue is thoroughly unregulated. The ban on
commercial surrogacy was the need of the hour.
But on the other hand, the requirement of the surrogates to be a ‘close
relative' of the intending parents was severely criticized by the public not
only because the definition of it was missing from the Bill but also because
very few close relatives would be willing to surrogate.
In a conservative society like India, hardly any woman will agree to carry
someone else's baby. Most women are anyway bound by the decisions of their
husbands and in-laws, who won't allow them to be a surrogate for someone
like her sister, for example.
Nonetheless, this proposal would prevent the exploitation of the Below
Poverty Line (BPL) women who are forced to indulge in this activity for
money. Also, a close relative can only for once in her lifetime surrogate
that will reduce their chances of getting abused and manipulated.
The Bill has set eligibility criteria for the intending parents for availing
surrogacy i.e., they should be married for at least five years.
The Committee highly debated on this provision as this limitation interfered
in one's personal life.
Any Government or any law should not interfere with someone's personal life
as what happens in a woman's body and a man's mind cannot be judged by a
panel. Since science has taken giant leaps in giving hope to childless couples,
it should be left to the couple to avail it.
Although these proposed five years were essential for the infertile couple
as it gave them a suitable time period for availing all the Assisted
Reproductive Technology (ART) which are necessary as it is difficult to
prove infertility in the early ages of marriage.
Also, there were questions about the upper age limit of the surrogates that
was pinned between 25-35 years. The Parliamentarians backed the
recommendation given by the DRSC on Health and Family Welfare in their 102nd
Report on the Surrogacy (Regulation) Bill, 2016 i.e., to increase the age to
Although scientifically the age between 25-35 is considered best for the
health of both the mother and the child as there are fewer chances of
miscarriage, pregnancy-related adverse effects, abnormalities in a child,
etc. These risks tend to increase with the increasing age of the mother.
Initially, the Bill excluded the provision for providing compensation to the
surrogates that excluded medical expenses, insurance coverage, and
reimbursement of her lost wages (if she was a working woman). Later, with
many deliberations expenses like medical, post-partum complications,
unnatural abortions, situations of death were included and insurance was
provided from the beginning of the procedure to seven months post-delivery.
Its regulation was moved under the Insurance Regulatory and Development
Authority (IRDA) established by the Insurance Regulatory and Development
Authority Act, 1999. For the loss of wages, it shall be covered under the
Maternity Benefit Act, 2017 where apart from wages, leave benefits and
assurance of continuing the service shall be provided. Simultaneously, this
would eliminate the working of any middle-men in this process.
There was a substantial consideration among the Committee members to include
a provision that makes registering a legal contract between the parties
i.e., the surrogate mother, surrogacy clinic and the intending couples
mandatory for providing legal protection by covering issues of insurance;
compensations; outlays; pre/post-delivery procedures; legal and
psychological counseling, highlighting the rights, duties, and liabilities
of all the parties to contract.
But the majority of the members were against making such legal contracts in
altruistic surrogacy as this service was more of a family arrangement. This
was important for upholding the quintessence of establishing altruistic
The only countries in the world that support a binding contract on
surrogacy are the countries that allow commercial surrogacy. There is not a
single country that allows altruistic surrogacy and an enforceable contract.
There was no space for single women to avail surrogacy benefits-
The government stated that in the institution of marriage, both the parents
are equally responsible for the upbringing of their children that becomes
difficult for a single parent to do. Therefore, to protect the rights of the
child this prohibition was vital.
In spite of this argument, the Committee stood for the single women (a
widow or divorcee):
There are conditions under which a single person genuinely needs to avail
surrogacy option to have a child. One such situation is young age widow, who is
otherwise capable but cannot carry a child because of fear of the social stigma
attached to pregnancy of a widow in our society. One cannot explain to everyone
that the child in her own womb is of surrogacy and therefore such a single
person should be given option of surrogacy within permitted regulation under the
After considering the above viewpoint, the definition of intending
woman under Clause 2 (r) (a) was amended, an Indian woman who is a widow
or divorcee between the age of 35 to 45 years and who intends to avail
Although the Bill still overlooks the rights of other categories of people
like, single men and women who have not married at all; live-in couples and
gay couples. This exclusion surely does question their reproductive
Taking a glance at some of the heated deliberations above, it is apparent
that surrogacy should not be seen as an economic opportunity as many take
this road to earn extra bread. It becomes essential to harmonize the
conflicting interests to ensure a better future for all the stakeholders
involved in this process.