Surrogacy means substitute and here it implies surrogate motherhood. Surrogate motherhood means the practice in which a woman bears a child for a couple who is unable to produce a child in a usual way[1]. According to Black’s Law dictionary surrogacy means the process of carrying and delivering the child of any other person.

In India we have laws concerning surrogacy. And at present, they do not have any legislative support but a bill concerning surrogacy laws named as ‘The Surrogacy (Regulation) Bill, 2016’ has been introduced in the Parliament of India which is pending till date.

Prevalent laws regarding surrogacy till date are that commercial surrogacy is legal in India since 2002. This is the main reason that India has become a hub for the surrogacy. Besides this, the other factors that make India a hub for the commercial surrogacy are-

• Availability of surrogates.
• In India, this process is very cheap as compared to other countries.
• Presence of large number of ART Clinics.
• Favourable legal environment. International Surrogacy involves bilateral issues, where the laws of both the nations have to be in uniformity else the concerns and interests of parties involved will remain unresolved.

Other than these, a Bill[2] has been introduced. The Bill seeks to restrict commercial surrogacy and imposes certain reasonable restrictions. They are:

• It only allows altruistic ethical surrogacy surgery to only those couples who are suffering from proven fertility.
• Such couples should have been married for atleast five years.
• Age of intending couple must be between 23-50 years for female and 26-55 years for male parent.
• Such couples must not have their biological child, or adoptive child or any child though surrogacy except when their child is physically or mentally challenged and have life threatening disorder.
• The surrogate mother should be a close relative of the said couple.
• Surrogate mother should be ensured an insurance coverage and an adequate amount of reasonable expenses in her favour.
• Such surrogate mother can so act only once in her lifetime.
• It should not be for any commercial purposes or for producing the child for sale, prostitution or any other forms of exploitation
• Any other conditions as may be prescribed.

But this also have certain loopholes[3] like –

• Clause 4(iii) (b) (II) of the said Bill lay that no person other than the close relative of the intending couple can undergo the process of surrogacy. But the Bill has nowhere defined the term close relative and no criteria have been laid to determine the close relative. This will provide an easy leeway to the intending couples to arrange a surrogate if the term ‘Close Relative’ remains undefined.
• The Bill does not provide any specified time period for obtaining the certificates of eligibility and essentiality from the appropriate authorities.
• Not only this, the Bill also does not lay any review or appeal procedure in case an application for the certificates is rejected.

Rationale behind such legislation

Some of the reasons behind such a legislation are-

• An urgent need to have the legislative backing for surrogacy laws was realised in the case of Baby Manji Yamada vs. Union of India & anr[4]. In this case a Japanese couple commissioned a surrogate mother in India but they ended in a divorce. The single male parent wasn’t granted custody of the child and the mother refused to accept it. Japan gave the child humanitarian visa and allowed the grandmother to take the child on behalf of her son, given his genetic relation with the baby. During the case, however, the Supreme Court recognised that the parent of a surrogate child may be a male and recognised surrogacy as a positive practice
• Rich people, celebrities opts this path in order to escape the labour pain
• Due to the commercialization of surrogacy women are being exploited either by their own express will due to poor economic conditions or due to their family pressures. Also, it might lead to be a reason to raise the statistics of human trafficking.
• In some cases parents refuse to take the custody of the child and escape from their responsibilities.

[1] New Encyclopaedia Britannica

[2] The Surrogacy (Regulation) Bill, 2016

[3] http://www.prsindia.org

[4] 2008(13)SCALE76   2008(11  )JT150; WRIT PETITION (C) NO. 369 OF 2008

ABOUT THE AUTHOR

TESU GUPTA

Tesu Gupta is a third-year B.A.LLB(H) student of Jagan Nath University, Haryana. She has participated in many moot court competitions and paper presentations. Passionate about law and legal research, her area of interest is Arbitration. She has won the intra-university moot court competition and received the ‘Best Presenter’ award.