Experiencing the feeling of parenthood is a dream of every couple, but due to
infertility, this remains a dream for some couples. With the advancement of
technology and medical sciences, In- Vitro Fertilization introduced made it
possible that couples could feel the breath of their own blood.
process is a blessing for India. Surrogacy had invited large number infertile
couples all over the world to India numerous women can be found here who are
ready to become surrogate for another's child. India is known as the hub of
surrogacy. Even before introduction of IVF, traditional surrogacy was in
In 2002, India for the first time, had legally recognized the surrogacy. But,
yet, India does not have any legislation to regulate the surrogacy. Currently,
Lok Sabha had passed the Surrogacy Amendment Bill, 2019 and it is there on the
table of Rajya Sabha for their approval. The bill had made commercial surrogacy
illegal and focused only on altruistic surrogacy (i.e. unpaid surrogacy).
Moreover, foreign infertile couples are banned to have a child through surrogacy
process in India. Surrogacy is more likely to have moral and legal implications
which are discussed in article. Further, in the last, I have concluded the
article with my opinions and certain modifications which are required in the
Surrogacy Bill of 2019.
The joy of becoming a mother figure is greater than all the pleasures of the
world. It is the most expensive happiness which could be enjoyed by a woman
after patience of 9 months and suffering from labour pain. But becoming mother
is not in everyone's destiny. Nature does not allow certain woman to become
pregnant (because of problem in their reproductive system). Approximately, 80
million couples are imprecated with infertility. 'Infertility', in terms of
surrogacy, is basically inability of woman or couples to reproduce.
the new process was introduced which was named as Surrogacy
. In Surrogacy, a
woman is contracted to carry pregnancy for another married couples. India is
deemed to be the hub of Surrogacy as lots of foreign couple visits India for the
same purpose. This makes India famous for fertility tourism too. In India,
commercial surrogacy is legalized in 2000. In surrogacy, a woman is hired, to
carry pregnancy and deliver child for another couple (who are not able to
reproduce), in return of money.
Surrogacy is an Alternative Reproductive Technique (ART) introduced, is the last
solution for infertile couples. ART is a gift of human advancement and
technologies in the field of medical sciences. In India, surrogacy is cheaper
than rest of the world i.e almost 10- 12 lakhs which is bearable by any foreign
couple. The first baby through Gestational Surrogacy is reported to be born in
But after on amendments, in December 2018, made commercial surrogacy
legalized only for India infertile couples who have been married for at least 5
years and is still unable to bear a child. This means that it is illegal if
foreign couples contracted for surrogacy in India. Besides India, Surrogacy is
legal in USA (California), Russia, and Ukraine which facilitates the couples who
desire to become parents, but their native country does not allow surrogacy or
if, they are unable to find a woman who is ready to become surrogate mother, to
abroad (in these countries) and avail the facility. Whereas, it is illegal in
England to indulge in surrogacy. Surrogacy has not been yet recognized in
Sweden, Germany, Norway and Italy.
Surrogacy has a wider role to play in the life of married couples who have been
in sexual relations for 5 or more than 5 years but still unable to bear a child
of their own. Surrogacy is a luring process for these types of couples. It had
opened up for homosexual couples also to gain the parenting experience. But
surrogacy and birth of surrogate child is a complex issue both from the moral
and legal perspectives.
There have been certain medical complexes and health
issues for surrogate mothers. As, financially weaker women mostly indulge in
surrogate practices, thus, often leading to abuse of women and advertising of
child bearing. To avoid this legal complication and ensure the health of women,
legislations have been formulated but still there are certain areas which
remained out the already existing legislations which need to be sorted out.
Meaning of Surrogacy and its types
In simple terms, Surrogacy is process in which a woman gave birth to a child and
handed it to another couple. 'Surrogacy' is an arrangement where an agreement is
made with a woman to bear a child for 9 months and then handover it to another
married couple. The woman who bears the child is known as surrogate mother and
the child born out through this arrangement is known as surrogate child. The
women are indulged in the act of surrogacy because of money. It is a good
business which earns a lot of money.
had been derived from the latin word surrogatus
. Black's Law Dictionary defines surrogate applies to women who
agree to carry and delivers the child on behalf of couple.
In other words, surrogacy is a result of human innovative mind and advanced
technologies which facilitates the married couples who are infertile to bear a
child, to enjoy the happiness of parenthood. Surrogacy is a process of assisted
reproduction, in which, desired couples co-ordinate with surrogate mother who is
prepared to carry pregnancy for 9 months and deliver the child to the couples.
Surrogacy is done in two ways:
- Traditional Surrogacy:
As the name suggests, traditional surrogacy is
where the infusion of surrogate mothers are either natural or artificial.
Through this method the child born can have genetic features of surrogate
mother. In the traditional type, surrogates mother's eggs are used and donor's
(intended father) sperm is inculcated inside the women's body. Thus, the child
born out of such process is the biological child of his or her surrogate mother.
Traditional surrogacy was done before the recognition of In- Vitro Fertilization
- Gestational Surrogacy:
This is the modern method practiced mostly in present time period. In this
method, egg and sperm of intended couples are taken out and mixed up in lab
forming a zygote and then it is inserted into the womb of surrogate mother
by using IVF technique. Unlike Traditional surrogacy, here,
surrogate mother is not the biological mother of child. Child has the genetic
qualities of his intended parents. Even Pre-implantation Genetic Diagnosis (PGD)
is also done to ensure the health of child and could detect any kind of disease
which a child could have in future, which is not there in the traditional type.
Apart from these two major types of surrogacies, there are two more
categories of surrogacy:
Commercial Surrogacy/Paid Surrogacy: Most of the surrogacies done come
under this category. It means that paying expenses to surrogate mother for
bearing child for 9 months and then giving birth. These are afforded by high
earning childless couples. The couples pay all the medical and other surrogacy
related expenses. Surrogate mothers are paid for her service delivered. Intended
couples make contracts including payments of expenses in hope of a child. In
simple words, desired couples bear child after paying a certain amount of money.
Altruistic / Unpaid Surrogacy: Surrogate mothers are not paid any money for the services they deliver. They
do so for the welfare of society and for the happiness of childless parents.
She is only paid with her medical and pregnancy related expenses only. These
are generally done by person who is in relation to intended parents either
as a friend or as any relative. Here the surrogate women do the favour so
that the childless woman could also experience the feeling of motherhood at
Brief historical Origin of Surrogacy:
The concept of surrogacy is not new to the world and has its origin in the
ancient times. In Greek Mythology, the word 'Eros' means 'The god of lust, love
and intimacy.' Even Hindu mythology also considered marriage as a sacramental
bond which is made for the procreation of son. In order to bear a child, woman
used to pray 'Shivalinga' which is believed to be the symbol of fertility.
The epic saga of Mahabharata also describes about the Niyog
(i.e IVF in today's
term) as a solution for the problems faced by Kuru brothers Pandu and
The customs and law of Babylonia make an arrangement of another woman for the
couple, who could bear the child. She was impregnated by intended male partner.
After the birth of child, he or she was delivered to couples who would ensure
his or her aftercare. Thereafter, several modifications were done and because of
advancement in medical science and legalities, contemporary commercial surrogacy
was introduced. In the year of 1936, pharmaceuticals and Drug Company in US,
named, Schering Kahalbaum and Parke- Davis started producing Estrogen. In 1944,
Prof. John Rocke (of Harvard Medical School), was the first person, who
fertilizes the female ovum outside the Uterus. Then, in 1953, the
cryopreservation of sperm was done, for the first time, by researchers. In USA
(1980), Noel Keane (a Michigan lawyer) made the first contract of surrogacy.
Before that, in 1971, In New York, first commercial sperm bank was opened which
became the high earning business. First test tube baby was born in England in
1978 by using IVF mechanism. In 1986, first case on surrogacy came in New
Jersey, where the surrogate mother (Mary B. Whitehead) refused to give her baby
to couples and goes against agreement made between them. The court of New Jersey
made judgment in favour of biological father and allowed the custody of
surrogate child to him instead of surrogate mother. Later on, a convention was
held in Chile (in 1994), where Latin American fertility specialists joined and
discussed upon the moral and legal position of Assisted Reproduction Technique.
Prospects of Commercial surrogacy and legislation in India:
As stated earlier, India is a hub for commercial surrogacy as the condition of
women forced them to indulge in such acts. A lot of tourist travels from all
over the world in India to convert their lifelong dream into reality and the
expenses are also affordable by them. In India, women are ready to become
surrogate mothers are easily available at very nominal rates. This can be one
reason for the foreigners to choose India for surrogacy.
India had recognized commercial surrogacy by legalizing it in 2002. This
attracts lots of infertile couples from outside of territory in search of a
woman who could be a surrogate mother to their baby. This resulted in setting up
of various foreign companies in India which helped the foreign infertile couple
to find Indian women for such activity and completing other formalities and
paper work related to the process.
The process of commercial surrogacy had
affected the health of women very badly. It directly affected the women's
reproductive health and ultimately leads to exploitation of women. Poverty was
the main cause behind women renting her womb. Later on, Indian Council of
Medical Research (ICMR) in 2005, pointed out certain guidelines for attribution,
direction and regulation of ART (surrogacy) clinics in India but these were not
Then in the year 2008, a case came forward Baby Manji Yamda V. Union of
in which a baby was born out of surrogacy and handed over to Japanese
couple but she was unable to leave India because her nationality was not
identified yet. The apex court in this case issued travel certificate to the
baby considering commercial surrogacy as legal in India and Japanese government
granted one- year visa to her on humanitarian grounds.
At the same time, ART Bill, 2008 was formulated but was not laid down before
Parliament. Concerning with this problem, Law Commission of India, in its
228th Report (in 2009) suggested the abolition of commercial surrogacy and
continuance of Altruistic surrogacy by formulating suitable legislations.
Finally, ART draft Bill of 2010 came into existence, which provides for national
framework to prevent abuse of ART techniques and safely use them. But this Bill
also had certain lacunas, not covering important implications of surrogacy. Then
again, several modifications and amendments were done and later on in 2014, a
bill passed named as Assisted Regulation Technology Bill, 2014.
In the meantime, Surrogacy (Regulation) Bill, 2016 was passed. The draft bill
of 2016 was laid before Lower House on 21st November, 2016. Lower House referred
the Bill to Standing Committee on 12th January, 2017, who submitted its report
on 10th August, 2017. Based on the report passed by Standing Committee, Lower
House, finally, passed the bill on 19th December, 2018.
Later on, The Surrogacy
(Regulation) Bill, 2019 was introduced in Lower House by Dr. Harsh Vardhan
(Union Minister of Health and Family Welfare) on 15th July, 2019 and was passed
on 5th August, 2019. The Lower House referred the Bill of 2019 to Standing
Committee on 21st November, 2019 and committee submitted its report on
5th February, 2020. The Bill is currently laid before Upper House.
Important Provision in Bill of 2019
The Surrogacy Regulation Law of 2019 banned commercial surrogacy for outsiders
(foreigners). Meaning thereby, it is now illegal for foreign couples to come to
India to avail surrogacy related benefits. Even only those Indians could avail
surrogacy benefits who are married couples for 5 years and have certificate of
infertility issued by District Medical Board after fulfilling certain criterias.
This means that bachelors and live- in couples could not make the surrogacy
agreements. The bill had focused more on altruistic surrogacy as the drafters
discerned commercial surrogacy to be the root cause of abuses done to surrogate
mothers. This point was inserted keeping in view the suggestion given in
228th Law Commission Report. The bill had fixed certain criterias for surrogate
mothers also like she could surrogate only once and should be close relative of
The age should be between 25- 35 years and must be married having her
own child, should possess certificate of fitness (both medical and
psychological) for surrogacy. Registration of clinics for surrogacy purpose by
appropriate authority as appointed by central or state government as the case
may deems fit. National and State Surrogacy Boards would be constituted by
Central and State Government respectively for advising and providing code of
conduct for surrogacy clinics.
Prior to the abortion of surrogate child,
surrogate mother should be consented and appropriate authority must authorize
such not violating the rules under Medical Termination of Pregnancy Act, 1971.
Lastly, advertising of commercial surrogacy, abusing surrogate mother, rejecting
or deserting surrogate child, trading or importing of human embryo or gametes
for surrogacy purpose is punishable with imprisonment maximum up to 10 years and
fine maximum up to Rs. 10 Lakhs.
Ethical and Legal Implications of Surrogacy in India:
Although, surrogacy is introduced with the motive to provide parenthood feelings
to infertile couples and for economic assistance to surrogate mother who has to
fight every day for her subsistence living. But, due to lack of proper surrogacy
legislation, only the middlemen are profit earners and intended couples and
surrogate mothers are in a way being exploited. There are several moral and
legal issues related with commercial surrogacy.
As per the latest Surrogacy Bill
of 2019, commercial surrogacy has been banned and altruistic surrogacy had been
permitted. The main reasons to ban commercial surrogacy were to prevent the
exploitation of women, selling and purchasing of babies, illegal trading of
human embryos The criteria mentioned for surrogate mother that she should be a
close relative of infertile couple but not accurately defined the term close
relative makes it a little vague to understand the concept.
The parents have to
wait for 5 years and had to get a medical certificate from Doctors and have to
complete certain legal formalities, which is itself a very complex and time
consuming task. It is also very sarcastic that live- in couples are not allowed
to go for surrogacy. This, in a way, is discriminating for live- in couples, who
are not married, as for having a child, marriage is a compulsory criteria.
means that live- in couples cannot enjoy the parenthood feeling without getting
married. It is practically very difficult to find out such a women, who is a
close relative and is ready to carry pregnancy for the intended couples free of
cost. It become more complex in the case if the women (in close relative) is
working as she does not have time to have children of her own, then, how could
she find time to carry pregnancy for that intended couples? In between a major
concern about society is drawn that what society will think of her.
family impression is the big issue as society never accepts this kind of
behaviour. There is a lackness of secrecy and everyone in the family and society
get to know about the act and then starts blaming both the surrogate mother and
Next big concern which arose is that attachment of mother with her child. It is
very difficult for any mother to keep her child away from her because of an
emotional attachment built between gestational mother and child. Making
surrogacy agreements by the intended couples with the women within their
relation could even cause genetic disorders in child. This makes clear that
exploitation can be done even in the altruistic surrogacy.
There are no laws
made which accurately deal with surrogacy contracts. Surrogacy morally degrades
the dignity of women in the eyes of society as ultimately it is a woman carrying
pregnancy for the enjoyment of another couple who are infertile to procreate a
child. There is possibility that child could have emotional problems after
knowing that he or she is not the biological child of commissioning mother.
At last, I want to conclude that, the surrogacy rates are higher in India.
Ironically, there are numerous orphan children in India but due to the desire of
'own child', many millions of orphans are denied of family and a healthy
environment. Even those couples who want to adopt the child, it is again a
difficult task for them because Hindu Adoption and Maintenance Act, 1956 lays
very hectic terms and conditions.
Moreover, this adoption law does not allow
non- hindu to adopt a hindu child. The last alternative left for such couples id
to go for IVF. Further on, because of no proper legislation on surrogacy, the
process had been misused a lot. Even the new amendment Bill of 2019, which has
been passed by Lok Sabha is also supporting only altruistic surrogacies which
have several loopholes and it scratches away the hope of earning to those
females who are financially weak and have no other source of earning. Rights of
surrogate woman and child are also not secure. There are lot more loopholes
which needed to be removed.
The surrogacy Bill of 2019 needs more changes to be done before passing further
to the President for his assent. It is mentioned in the legislation that ART
Clinics should be made but, what conditions should be followed for maintaining
sanitation for surrogate mother and her safe delivery at such clinics, is not
there (which must be specified). Commercial surrogacy should not be completely
banned, it should be legalized with certain limitations imposed for the benefit
of both commissioning parents and surrogate mother.
Completely making it illegal
for the foreign infertile couples to have a baby will definitely not proved to
be good so, it should be legalized for foreign infertile couples to have a baby
in India through surrogacy with proper authorities and regulations made for it,
so that negative implication of commercial surrogacy could be removed. This
could play a greater role in spreading medical tourism in India.