This article has been written by Miracline Paul Susi. Miracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University.

Surrogacy is a practice by which surrogate mother becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children. While countries including Italy, Spain, Germany and France prohibit all forms of surrogacy, countries like Australia, the United Kingdom and Denmark, allow only altruistic surrogacy. Commercial gestational surrogacy, in which a woman who has no genetic link is paid to have a baby, is a growing trend in countries like India, Russia, Thailand, and Ukraine. After the first surrogate delivery in India in June 1994, India has steadily emerged as an international destination for commercial surrogacy. A study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India[1]. Though the ethical issues started at an early stage, the legal complications with regards to commercial surrogacy came only in the year 2008. A Japanese couple contracted an Indian woman to serve as a surrogate. But before the woman could deliver the child, the couple got divorced. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognize surrogacy. In this landmark case the Supreme Court held that commercial surrogacy was permissible in India and the baby was ultimately granted a visa[2]. Surrogacy (Regulation) Bill 2016 proposed by the Health Ministry, banning commercial surrogacy came as a solution to this problem. The bill was cleared by the Union Cabinet on the 24th of August 2016 and is set to be introduced in the Parliament soon.

The draft bill provides for surrogacy as an option to parents who have been married for at least five years, either one of couple must have proven infertility. The age limit for the married couple ranges from 23-50 for female and 26-55 for male. Couples who already have biological or adopted children cannot commission a surrogate child. The bill clarifies the legal position of a child born of surrogacy by ensuring all legal rights as a citizen for the child. The bill bans egg donation. The surrogate mother has to be a married woman who herself has borne a child and is neither a non-resident Indian (NRI) nor a foreigner. Women can be surrogates only once and a married couple can only have one surrogate child. The couple should employ an “altruistic relative”, i.e. the surrogate mother should be a relative who is sympathetic to the situation. The bill restricts overseas Indians, foreigners, unmarried couples, homosexuals, and live-in couples from entering into a surrogacy arrangement.

Although the bill was passed with the intention of regulating the surrogacy, some of the clauses had outraged both the medical community and the general public. By allowing surrogacy for select classes of citizens the bill would violate citizens Fundamental Rights as laid down in Article 14 of the Indian Constitution. The idea of “altruistic surrogacy” expressed in the Bill greatly limits both potential surrogate mothers as well as couples wanting children.

The bill has ignored to discuss the issue of consent in detail. If a woman willingly consents to being a surrogate mother, is assured of a safe delivery; and the baby is assured of a safe home, why should she be limited to only one surrogacy? After the surrogacy industry boomed, a lot of women were dependent on the same. The issue here seems to be that the woman is “exploited” for her body. Surrogacy laws should be set out in such a way that full consent of the woman in question is assured. Here, instead of regulating the ways and policies in which a woman’s exploitation is prevented, what the bill has done is eliminate the idea entirely. The ban on egg donation in order to curb child trafficking and illegal surrogacy racket is only a blanket.  This situation cannot be resolved without censoring the entire industry[3].

Gay rights are still an evolving issue in India. While the Supreme Court is sitting on a review petition on Section 377 of the Indian Penal Code, pertaining to the status of gay rights, no clear legal stand on the issue has emerged. At this point the explicit stating of the ban of surrogacy to homosexual couples clearly shows the uncertainty of gay couple status in India.

The main issue is the question of disallowing commercial surrogacy and restricting foreigners from availing themselves of surrogacy in India. Since the inception of commercial surrogacy, a number of incidents have sparked unpleasant legal questions surrounding commercial surrogacy involving foreigners. In 2012, for example, an Australian couple who had twins by surrogacy arbitrarily rejected one while selecting the other. Such issues reveal the complexities that surround commercial surrogacy. There is need for discussing such complexities in the bill.

The draft Surrogate (Regulation) Bill seeks to comprehensively address the issue of surrogacy in India. This is indeed a step in the right direction. But the aim of bill will reach its fulfillment only when the above mentioned controversies are addressed.

[1] The Growth Of Surrogacy Industry In India And The Issues Surrounding It, 3rd October 2015, viewed at https://thelogicalindian.com/story-feed/awareness/the-growth-of-surrogacy-industry-in-india-and-the-issues-surrounding-it/

[2] Baby Manji Yamada vs Union Of India & Anr (2008) 13 SCC 518

[3] Malavika Ravi , A Critical Analysis Of The Surrogacy Regulation Bill 2016, 31 August 2016, viewed at http://feminisminindia.com/2016/08/31/critical-analysis-surrogacy-regulation-bill-2016/

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