The Article on The Surrogacy (Regulation) Bill, 2019 touches upon the historical
background of surrogacy at the domestic as well as international level. It
covers the evolution in the field of surrogacy in India and explains the
Surrogacy (Regulation) Bill, 2019, an analysis on the same and the futuristic
approach of the Government in equipping India with the Surrogacy laws.
One of the functions of the institution of marriage is procreation of children,
as rightly said by Malinowski. Women, however are not always capable to conceive
due to myriad reasons such as miscarriage, hysterectomy, liver and heart
diseases and failure of the plantation of embryo, to name a few. This leads to
choosing for Artificial Reproduction Techniques or adoption as methods for
procreation. As per the Reproductive Technology Council, the guidelines of
Artificial Assisted Reproductive Techniques states surrogacy to be:
arrangement whereby a woman agrees to become or attempts to become pregnant and
bear child for another person.
The definition as per the Council does not seem to indicate any grey area,
however discussing a few cases may awaken us to the gaps and irregularities in
surrogacy agreements and would make us ponder the boon India received in the
form of The Surrogacy (Regulation) Bill, 2019.
Take on Surrogacy at a Global Level
In the year 1987, the New Jersey's Supreme Court decision on the birth of baby
out of traditional surrogacy wherein Mary Beth, the surrogate mother refused
to deliver the child which was in violation of the surrogacy contract and
wherein the Court held that, The Government could not enforce a contract that
orders a fit and loving mother to give away her child.
In the United Kingdom, there was a similar case where a non-gestational
surrogate mother refused to give the child on the contentions that the
commissioning parents have violent tendencies which can prove derogatory for the
child. The Courts, in the matter observed that:
Although the surrogacy
contracts are legal in the country, they are not legally binding by the Court
and that while deciding such cases, the interests of the child are to be given
Background of Surrogacy In India
India was amongst the list of countries such as Russia, Ukraine and some states
of U.S.A which allowed commercial surrogacy wherein the surrogate mothers were
entitled to get compensation in cash or kind from the intended couples in
addition to the medical expenses and insurance. The commercial surrogacy was
legalised in India in 2002 which was banned in the year 2015. One of the reasons
for such a step can be traced back to a leading case which led the Government to
pay heed on the surrogacy regulations in the country.
The case was of Baby Manjhi
where a Japanese couple took assistance of artificial reproduction in
the form of surrogacy by engaging an Indian surrogate mother. The couple however
got separated before the baby was born and the question before the Court was who
will keep the baby.
The Husband was willing to keep the child while the wife was
not and to add to the complexities, Japan did not recognise surrogacy then and
Indian law was also unsettled in this regard. The case came to a conclusion when
it was decided to hand over the baby to her grandmother. Although the case was
closed, it opened the lacuna in the surrogacy laws which needed Government's
The exploitation of surrogate women is evident from the case of 2018 in
Hyderabad where a man aged 64 years was arrested for harassing the surrogate
mother he had hired. Likewise a woman and a doctor were arrested in 2019 in
Kolkata for running a surrogacy racket.
Thus, the exponential growth in the surrogacy industry, exploitation of
surrogate women, and improper regulation of the surrogacy agreements led to the
progression of introducing the Surrogacy Bill on the table of Parliament.
The Surrogacy (Regulation) Bill, 2019
The Bill was first mooted in 2016. It got further recognised in 2019 when Lok
Sabha passed the draft legislation and which was then approved by the Union
Cabinet after considering and accepting the Recommendations provided by the
Rajya Sabha Select Committee.
The snippets from the draft Bill as passed by the Lok Sabha are as follows:
Recommendations of the Select Committee
- The Bill provides for the regulation of surrogacy in India.
- Prohibits commercial surrogacy and encourages altruistic surrogacy i.e.
surrogacy without any consideration except the medical expenses and insurance
cover of the surrogate mother.
- The Bill allows only Indian married couples to opt for surrogacy.
- The surrogate mother and the intended couples to be close relatives and the
definition of close relatives to be given in Rules and Regulations thereafter.
- The formation of National Surrogacy Board at the Centre, State Surrogacy Boards
at the State level and appointment of Authorities for the purposes of
- The surrogate mother and the intended couples to procure certificate of
eligibility from Appropriate Authority for the purposes of surrogacy.
- Foreigners, Non Resident Indians, Persons of Indian origin banned to opt for
- Couples already having a child cannot opt for surrogacy; however they are
eligible to adopt a child under a different legislation.
- Surrogate mother is entitled to an insurance cover for 16 months
- Defined infertility under the Bill as the inability to conceive within 5 years
- For abortion of the surrogate foetus, the consent of the intending couple is
immaterial and written consent is required only of the surrogate mother subject
to authorization from the appropriate authority in compliance with the
provisions of the Medical Termination of Pregnancy Act, 1971.
- Registration of surrogacy clinic is mandatory to undertake surrogacy or to
render surrogacy procedures.
- After birth, the child is to be the biological child of the intending couple.
- Homosexual couples, live-in relationship mates, single individuals cannot have
children via surrogacy in India.
- The punishment for indulging in commercial surrogacy as mentioned in the Bill to
be imprisonment up to 10 years and fine up to 10 lakhs.
The recommendations to the Bill as passed by the Lok Sabha on August 05, 2019
was given when it was tabled before the Rajya Sabha. The Committee had
raised concerns over few of the provisions of the Bill and had recommended in
place of such provisions which were eventually adopted by the Union Cabinet on
Few of the recommendations made were as under:
To allow willing women
instead of close relatives
altruistic surrogacy. The argument for including the same is to increase the
ambit of the availability of more surrogate mother and to make altruistic
surrogacy more convenient.
To allow single woman to opt for surrogacy and the argument advanced for the
recommendation was that there can be situations where a single woman genuinely
needs to opt for surrogacy. For example, young widow who is incapable of bearing
a child and can opt for surrogacy however, she does not do so because of the
social stigma surrounding with respect to pregnancy of widow.
The omission of 5 year wait period to opt for surrogacy as it is too long a
period to wait for a child and hence to omit the definition of infertility which
provides for the 5 year threshold for surrogacy.
To include single women including divorcee/widow within the age of 35-45 years
of age and Persons of Indian origin to opt for surrogacy so as to ensure
equality of choices amongst all classes of society.
To extend the period of insurance cover to 36 months from 16 months in order to
increase the security of surrogate mothers.
Critical Analysis of the Bill
On reading and understanding the Bill as approved by the Union Cabinet, a few
clarification gaps can be pointed out as under:
The Bill is silent on the rights of LGBTQ couples for parenthood as it allows
only heterosexuals and single women to opt for surrogacy.
The banning of commercial surrogacy can be criticized as it is not every time
possible to find women who are wanting to act as surrogate mother without any
monetary benefit or incentives for bearing the pain apart from receiving medical
expenses and insurance cover. A regulation of commercial surrogacy rather than
complete ban can help the economically vulnerable surrogate mothers for whom it
can become a source of livelihood.
A due regard on fashion surrogacy is also lacking where the celebrities usually
opt for surrogacy as they do not want to derail their figure or outlook in
The Bill contradicts various established legislations in India on adoption such
as Hindu Adoption and Maintenance Act, 1956 and Juvenile Justice Act, 2015 which
allows for conditional adoption for single and divorced parents.
The Bill can be contended under Article 21 which deals with Right to Life and
the State on that regard cannot interfere with the procreation and parenthood
rights of the persons by elucidating the mode and manner of parenthood.
Although the Bill can be felt of having few shortcomings that needs to be
settled, the liberal approach and proactive ness of the Government towards
issues such as medical termination of pregnancy, surrogacy, artificial
re productory techniques, reproductive rights, etc. proves to be a boon. The Bill
helps in curbing exploitation of the poor, uneducated women at the hands of the
rich and is an evidence of a progressive nation in making.
Also it will help in the regulation and encouragement of surrogacy in an
optimistic manner. The recommended changes as approved by the Union Cabinet such
as allowing the divorcee, widow to opt for surrogacy and to replace close
to be a surrogate mother for willing woman
to act as a surrogate
mother are steps ahead taken for the efiiciency of carrying out surrogacy and
diminishing arbitrariness and unequality in the society.
Written By: Khushboo Tibrewal