When money is exchanged for pregnancy, some believe in newborn while
others, come close to organ selling, or
Infertility as a medical condition serves to be a huge impediment in the
overall wellbeing of couples and cannot be overlooked especially in a
country like India which follows a patriarchal society. A woman is respected
as a wife only if she becomes a mother of the child so that her husband's
masculinity and sexual potency is proved and the lineage continues.
parents construct the child biologically, while the child constructs the
parents socially. The problem however arises when the parents are unable to
construct the child through the conventional biological means. Infertility
is seen as a major problem as kinship and family ties are dependent on
progeny. Whereas surrogacy came as a solution for infertility and also made
a way for shady dealings on baby selling.
Surrogacy In India
India has secretively become a booming center for the fertility market in
the name of medical tourism, unexpectedly it also mounting year by year. In
India since 1978 the Assisted Reproductive Technology (ART), has been used
in 2,00,000 clinics (approx.) across the country were performing Artificial
Insemination, In vitro fertilization (IVF) and Surrogacy. India's first IVF
(in vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata on
October 3, 1978 about two 8 months after the world's first IVF boy, Louise
Joy Brown born in Great Britain on July 25, 1978. Since then the field of
assisted reproductive technology (ART) has developed rapidly.
India opened up to commercial surrogacy in 2002 ad handful of countries -
including Georgia, Russia, Thailand and Ukraine - and a few U.S. states
where Indian women were paid to carry another's child through in-vitro
fertilization (IVF) and embryo transfer. The U.N backed study in July 2012
estimated the surrogacy business making a turnover more than $400 million a
year, with over 3,000 fertility clinics across India. Clinics charged the
indenting couples between $10,000 and $28,000 for the complete package,
including fertilization, the surrogate's fee, and delivery of the baby at a
Traditional And Gestational Surrogacy
Surrogacy means the process of carrying and delivering a child for another
person1. Thus surrogacy is an arrangement in which a surrogate mother is a
woman who carries a child for someone else, usually an infertile couple.
There are two different types of surrogacy namely traditional surrogacy and
gestational surrogacy. In "traditional surrogacy" (also known as the
Straight method) the surrogate is pregnant with her own biological child,
but this child was conceived with the intention of relinquishing the child
to be raised by others; by the biological father and possibly his spouse or
partner, either male or female "gestational surrogacy" (also known as the
Host method) the surrogate becomes pregnant via embryo transfer with a child
of which she is not the biological mother2.
Transnational Eyes On India
The cost of surrogacy process and surrogate is also cheaper in India, even
there is bare for legislation in regulating surrogacy, made a clear way for
foreigners and outsiders to get the baby through agencies in and around the
country. Hence, the wealthy indenting couples or single parents procure
these types of surrogacy process for attaining the baby under an agreement
between the agency, intending couples, and surrogate mother.
There are several agencies were performing this process using (ART) with the
help of Artificial insemination clinics in India. For example in the United
States, the cost of surrogacy is estimated to be more than $100,000.00. The
surrogacy cost in India is about $47,350 including the compensation given to
the surrogate mother which is decided by the clinic. The surrogate mother
depends on it. As it is more than that they would make in a year of ordinary
In Akanksha infertility clinic in India, make payments to the surrogate
mother in installments of $50 every month during pregnancy and $500 at the
end of the trimester, remaining which would be delivered upon successful
delivery only. As there is no legal framework for surrogacy many
exploitations is also been happening and the surrogate mother turns to be a
victim in benefiting the outsiders.
Exploiting Destitute Women
Surrogacy exploits women mentally and physically. Women in desperate
situations in order to make extra income and protect their family who has no
other means of making ends meet opt for surrogacy. Most of the women are
illiterate and are not being educated on the process and steps of surrogacy.
The verdict by the apex court in case of (retired) Justice Puttaswamy, recognizes
the constitutional right of women is their reproductive choices under
article 21 of the constitution of India which restricts the surrogacy of
women when they do it for the desperate need of money. The right of women
includes her privacy, dignity, and bodily integrity 3.
Further, in the Telangana fertility center (Padmaja fertility center at
Bhongir), more than 50 surrogate mothers were found confined in buildings
adjacent to their center. They were being held until the birth of the child.
This restricts their movement and even though they were provided with food
and shelter, confining those (about 50 persons) in a room is a way of
exploiting their mental and physical health.
In 2005, the government approved the 2002 draft of the National Guidelines
for the Accreditation, Supervision and Regulation of ART Clinics in India
and the same were not presented in parliament. Then, In August 2009, the
228th law commission has been constituted and headed by a Chairman Hon'ble
Dr. Justice AR. Lakshmanan and with a committee members for detail analysis
about and surrogacy practices and recommended legal framework for parliament
in making special legislation for surrogacy in India. The Law Commission
recommended many objects like to adopt a pragmatic approach by legalizing
altruistic surrogacy arrangements and prohibit commercial4and procedures for
surrogacy, and also the steps taken to control surrogacy arrangements.
The following observations had been made by the Law Commission:
- Surrogacy arrangement will continue to be governed by contract
amongst parties, which will contain all the terms requiring the consent
of surrogate mother to bear child, agreement of her husband and other
family members for the same, medical procedures of artificial
insemination, reimbursement of all reasonable expenses for carrying a
child to full-term, willingness to hand over the child born to the
commissioning parent(s), etc. But such an arrangement should not be for
- A surrogacy arrangement should provide for financial support for a
surrogate child in the event of the death of the commissioning couple or
individual before delivery of the child, or divorce between the intended
parents and subsequent willingness of none to take delivery of the
- A surrogacy contract should necessarily take care of life insurance
cover for surrogate mother.
- The legislation itself should recognize a surrogate child to be the
legitimate child of the commissioning parent(s) without there being any
need for adoption or even declaration of guardian.
- Sex-selective surrogacy should be prohibited.
In pursuant to the law commission report and National Guidelines for the
Accreditation, Supervision, and Regulation of ART Clinics, the NDA the
government drafted The Surrogacy Bill 2016, and the same was lapsed owing to
the adjournment sine die in the parliament. Then, the bill was reintroduced
as The Surrogacy Bill 2019 in Lok Sabha and successfully passed. Currently
the bill is required to be passed by the Rajya Sabha, the upper house of the
Indian parliament, and presidential assent before it becomes an act and
thereby a law.
Statement And Object Of The Surrogacy (Regulation) Bill 2019
India has emerged as a surrogacy hub for couples from different countries
for the past few years. There have been reported incidents of unethical
practices, exploitation of surrogate mothers, abandonment of children born
out of surrogacy, and import of human embryos and gametes. Widespread
condemnation of commercial surrogacy in India has been regularly reflected
in different print and electronic media for the last few years.
The Law Commission of India has, in its 228th Report, also recommended for
the prohibition of commercial surrogacy by enacting a suitable legislation.
Due to a lack of legislation to regulate surrogacy, the practice of
surrogacy has been misused by the surrogacy clinics, which leads to rampant
commercial surrogacy and unethical practices in the said area of surrogacy
In the light of the above averments, it had become necessary to enact a
legislation to regulate surrogacy services in the country, to prohibit the
potential exploitation of surrogate mothers and to protect the rights of
children born through surrogacy5.
Special Provisions In The Surrogacy Bill 2019
As stated supra the bill's aim to prohibit commercial surrogacy, it made a
restriction in surrogacy that the intending couples and a gestational
carrier should an Indian resident not a foreigner. Many studies say more
than 50% of surrogacy arrangements are made for the benefit of outsiders on
consideration of money in return. Section 3 (e) of the Surrogacy Bill2019
says the surrogate mother should be a close relative of the intending couple
and should be an ever-married woman having a child of her own 6.
The clinics which are registered under the act only can perform the
surrogacy arrangements after getting the eligibility certificate from the
appropriate authority mentioned in Act. The indenting couples and surrogate
will be undergoing medical infertility test in initiating the surrogacy,
only the infertile Indian couples can be only permitted to proceed with IVF.
Especially this act introduces the National Surrogacy Board and State
Surrogacy Board, which empowered to deal with the dispute arise in the
process of surrogacy. The Board consists of the Minister of Health and
Family Welfare as chairperson, Secretary to Government, three women Members
of Parliament in the National board and State Surrogacy Board with Minister
of Health and Family Welfare as chairperson and other authorizes mentioned
in the act as members on the board.
The act imposes punishment for the clinics which serve as an agency for
surrogacy and also punish the persons forcing a surrogate mother to accept
the same. The board has numerous powers to punish under the act, when any
petitions filed before the authorities by the victims of surrogacy.
View Of Surrogate Mother
The ban on commercial surrogacy aims to protect mothers from exploiting
their bodies. However, some surrogate mothers feel such a ban would actually
hurt them more. Since most of them are unemployed and desperate. They fear
that their income would no longer be from surrogacy which has given them
more money than they would have gotten by doing 10 years of domestic labor
because most of the surrogate mothers are illiterate. This is an unfortunate
situation but must also not be neglected, the government must also ensure
well-being and employment issues for their sustainability.
Tone Of Common Man
Surrogate mothers are considered as a mother by law and nature. She is
someone who nurtures and carrying a baby for 9 months, she creates a life
bond with her child even if the child belonged to other. Several questions
may arise to the person who reads, like what if she wants to keep the baby
Then, what may be the remedy for surrogate mother who wants to revoke or
discharge the contract of surrogacy with the inclusion of all her dignity
and bodily integrity. Whether the surrogacy bill provided proper
rehabilitation for surrogate mothers. Hence the government and upper house
of parliament may consider the issues before approving the bill.
- The Black's Law Dictionary
- Baby Manji Yamada Vs. Union of India & Another (2008) 13 SCC 518
- Justice K.S.Puttaswamy(Retd) vs Union Of India(2017)10 SCC 1
- The 228th Law Commission Reportpage 25 (Para. 4.1)
- The Surrogacy Bill 2019 Page. 21