ABSTRACT
Surrogacy as a practice in India has been carried out from centuries to help those unfortunate
couples who are unable to conceive due to natural problems like infertility, same-sex couple,
age,etc.
The government recognised the need to regulate surrogacy in order to protect the interests of
all parties involved in the procedure while remaining within the scope of the reasonability cla
use. The Ministry of Health and Family Welfare introduced the Surrogacy (Regulation) Bill,
2019 to address this issue. In the latest Surrogacy Regulation Bill the key points focused were
on facts such as the term defining infertility was revised and the process of commercial
surrogacy was banned only a close relative of the couple would be eligible to become a
surrogate mother and also post-delivery 36 months was defined where the couple needed to
care of any medical complications that arose from the pregnancy of the surrogate mother.
Even after all the amendments in the bill, India has still a long way to go to curb the presence
of malpractices and misuse of surrogacy.
INTRODUCTION
Surrogacy is not a new concept inIndian society. Instances can be traced to the
mythological surrogate mothers such as Yashoda and Gandhari 1 .
The primeval desire to have a biological kid with one's own DNA, combined with the comme
rcial side supplied by ART clinics and allied services, has resulted in India's 5000-million-
dollar reproductive tourism business.2 .
The Black’s Law Dictionary defines surrogacy as “the process of carrying and
delivering a child for another person’s” 3 . In the simplest terms, it is an act of having a
child with the aid of another individual, with the help of advanced medical facilities.
In the case of Baby Manji Yamada v. Union of India 4 , the court has described the
various forms of surrogacy, which include traditional surrogacy, gestational
surrogacy, altruistic surrogacy, and commercial surrogacy. The advancement of IVF
technology and the growth of IVF clinics across India have made it a spot for
reproductive tourism 5 . India has often been termed as the “surrogacy Capital of the
world” 6 , and the surrogacy business, estimated at 400 million dollars a year,
witnessed the emergence of over 3000 fertility clinics all over India. 7
Commercial surrogacy, on the other hand, has been mostly uncontrolled and is widely
seen as the source of all the problems that afflict surrogacy in India. As a result, the
Bill of 2020 emphasises that the Act aims to prevent immoral commercial surrogacy
practises, such as surrogate mother exploitation. In this regard, the 2020 Bill differs
from the 2008 and 2014 Bills, which both allowed commercial surrogacy.
EVOLUTION OF SURROGACY IN INDIA
1
Anu Aneja and Shubhangi Vaidya, Embodying Motherhood: Perspective of Contemporary India 140-
141 (1 st edition, published in 18 July, 2016).
2
Anil Malhotra and Ranjit Malhotra, Surrogacy in India — A Law in the Making — Revisited,
Universal Law Publishing 2016,p. 52.
3
Black’s Law Dictionary, Bryan A. Garner, 8th Edn. 2004, p. 4529.
4
Baby Manji Yamada v. Union of India, (2008) 13 SCC 518.
5
Anil Malhotra and Ranjit Malhotra, Surrogacy in India — A Law in the Making — Revisited,
Universal Law Publishing 2016, p. 2.
6
Chinmoy Pradip Sharma, Surrogacy Laws in India – Past Experiences and Emerging Facets, Bar &
Bench,
[Link]
facets, Last Seen 13/06/ 2020.
7
Shubhangi Priya, Evaluating Surrogacy Legislation in India, Social & Political Research Foundation,
[Link] Last Seen 13/06/ 2020 .
There are four sections to the paper. Part I examines the history of surrogacy in India
before delving into the specific provisions of the Bill. Part II givesa detailed analysis
of the constitutional validity of the Bill in the light of Article 14, Article 21, and
Article 19(1)(g) of the Constitution. Part III discusses the loopholes and proposals that
may arise as a result of the modification. Finally, Part IV brings the article to a close.
The roots of surrogacy can be traced long back in India. The world’s second and
India’s first IVF (In Vitro Fertilization) baby Kanupriya alias Durga was born Kolkata
on October 3, 1978. 8 Since then the field of assisted reproductive technology (or ART)
has shown some fastest developments.
Surrogacy faced its first legal hurdle in the Baby M9 case in 1986, when a traditional surrogat
e elected to keep the kid after giving birth to the infant.
After a two year legal battle, the intended parents were able to keep custody of their children.
This landmark case presents a slew of legal issues surrounding surrogacy. Surrogacy rules, on
the other hand, are still in their infancy.
In 2002, India made commercial surrogacy lawful. This law aided the growth of an industry t
hat brought international attention to India's reproductive market. India has established itself
as one of the most popular surrogacy destinations worldwide. This cleared the path for wome
n's exploitation, the abandonment of surrogate infants, and other unethical acts.
Low-income Indian women were ideal sellers of their reproductive capacities due to their
financial vulnerability and access to cheap reproductive labour. The Indian Council for Medic
al Research issued ethical guidelines in 2005 to combat exploitative practises against'mother
workers' (a term coined by sociologist Amrita Pande10), emphasising contractual agreements
between commissioning parents, fertility clinics, and surrogate mothers, as well as the concep
ts of consent, privacy, and support.11 In 2012, the Union Home Ministry proposed an
8
History of Surrogacy in India, Indian Surrogate Mother, [Link]
surrogacy-india/, Last Seen 13/06/ 2020.
9
In re Baby M, 537 A.2d 1227, 109 N.J. 396, 1988 N.J. LEXIS 1, 77 A.L.R.4 th 1 (N.J. Feb. 3, 1988)
10
Amrita Pande, Commercial Surrogacy In India: Manufacturing a Perfect Mother-Worker, 35 The
University of Chicago Press Journal 969 (2010).
11
Priya, supra note 7, at 1.
amendment to 2002 law, to ban foreign nationals, especially same-sex couples and
single parents in India.
The Law Commission of India's 228th report recommends banning commercial surrogacy
and allowing altruistic surrogacy, citing concerns about the widespread use of surrogacy by
foreigners and the lack of a proper legal framework, which can lead to exploitation of
surrogate mothers who may be coerced to become surrogates due to poverty and lack of legal
education
Surrogacy (Regulation) Bill, 2016 was introduced in parliament in [Link] bill called for
the creation of national and state surrogacy [Link], only heterosexual Indian
couples who had been lawfully married for five years were eligible for surrogacy, which
came with the stipulation that they had proven fertility as attested by a licenced medical
practitioner.
However, due to a fault in the laws, the bill fails to pass the Lok [Link] Surrogacy (Regul
ation) Bill, 2019, was then reintroduced and passed by the Lok Sabha before being submitted
to the Rajya Sabha's Select [Link] Surrogacy (Regulation)Bill, 2020, incorporates al
l of the Selection Committee's suggestions, and it has been approved by the Union Cabinet.
However, the bill includes a blanket prohibition on commercial surrogacy as well as restrictio
ns on altruistic [Link] bans on the overseas, foreigners, unmarried couples, single
parents, live-in partners, and gay couples from commissioning surrogacy. The
proposed is not legally unsound but also highly divorced from the Indian social
reality . 12
PROVISIONS OF SURROGACY ( REGULATION ) BILL, 2020
Chapter I(Section 2) 13
"Altruistic Surrogacy (no charge or fees or expenditures)" and "commercial surrogacy (surrog
acy for money, reward, benefit, or fees)" are among the terms defined in the Bill.
It also defines a "intending woman" as an Indian woman between the ages of 35 and 45 who
is a widow or divorcee who wants to use surrogacy.
12
Simran Aggrawal & Lovish Garg, The new surrogacy law in India fails to balance regulation and
rights, LSE Human Rights,
[Link]
regulation-and-rights/, Last Seen 13/06/ 2020.
13
The Surrogacy (Regulation) Bill, 2020(Reported by The Select Committee).
CHAPTER II (Section 3 14 ) It covers "parental abortion and surrogacy," in which a child born
through a surrogacy procedure is considered the biological child of a future couple or future woman.
Abortion by a surrogate mother requires the surrogate's written consent and permission from the competent
authority. This authorization must comply with the Medical Termination of Pregnancy Act of 1971 . Also,
a surrogate mother cannot choose a surrogate mother until the embryo is implanted in the womb.
CHAPTER III (Section 4-10) 15
This chapter divide in 4 parts-:
First part deal with the five purposes for which surrogacy is permitted such as (i)
when an intending couple or intending women of India has a medical indication for
gestational surrogacy (means a practice whereby a surrogate mother carries a child for
the intending couple through implantation of an embryo in her womb and the child is
not genetically related to the surrogate mother) (ii) altruistic (iii) for any condition or
disease specified through regulations, and (iv)that surrogacy is not for commercial
purposes, producing children for sale, prostitution or other forms of exploitation.
The Second Part deals with Eligibility criteria for intending coupleswhich include
‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate
authority.
When the following conditions are met, a certificate of essentiality will be issued:
1. A District Medical Board certificate of medical indication in favour of either
or both members of the intending couple or intending woman for gestational
surrogacy.
2. A Magistrate's court issued a paternity and custody order for the surrogate
kid.
3. Insurance coverage for the surrogate for a period of 36 months, up from 16
months in the previous version, which covered postpartum delivery issues.
14
Id. at 3.
15
The Surrogacy (Regulation) Bill, 2020(Reported by The Select Committee).
• The certificate of eligibility for the intended couple will be issued if the following requirem
ents are met:
1. Citizens of India, the couple
2. between the ages of 23 to 50 (woman) and 26 to 55 (husband)
3. They do not have any biological, adopted, or surrogate children, nor do they have any child
ren who are intellectually or physically challenged, or who have a life-threatening disorder or
terminal illness.
4. Regulations may also specify other conditions.
• The third section discusses the surrogate mother's eligibility criteria, and the surrogate moth
er must meet the following conditions in order to get a certificate of eligibility from the prope
r authority:
1. a married and willing woman between the ages of 25 and 35 who has a child of her own
2. surrogate just once in her life
3. have a certificate of medical and psychological fitness for surrogacy
The fourth part deals with the “Rights of surrogate child” in which the child will be
entitled to all the rights and privileges available to a natural child under any law for
time being in force.
CHAPTER IV (Section 11-14) 16 deals with “Registration of surrogacy clinics” by the
appropriate authority in order to undertake surrogacy or its related procedures within a
period of 60 days from the date of appointment of the appropriate authority.
“Registration of certificates” which are valid only for three years and will be renewed.
“Cancellation or suspension of registration” by the appropriate authority if there is any
infringement of the provisions of the Act. And “Appeals” against orders such as
rejection or cancellation of certificates, registrations, and applications passed by the
appropriate authority to the State and Central Government
CHAPTER V (Section 15-32) 17
16
Id. at 4
17
Id. at 4
deals with the National and State Surrogacy Boards, which are made up of representatives fro
m Parliament, State Legislative Assemblies, Executives, and 10 specialists nominated by the
federal and state governments. Boards' roles include advising the Central Government on
surrogacy policy, monitoring and reviewing the Act's or rules' implementation, establishing a
code of conduct for surrogacy clinics, and supervising the performance of the State Surrogacy
Board and other bodies established under the Act.
Chapter VI (Section 33-35) 18
Deals with the Appropriate Authority, which is made up of the Joint Secretary and Joint
Director of the Health and Family Welfare Department, an eminent woman representing a wo
men's organisation, a state or union territory officer of the Law Department, and a prominent
registered medical practitioner.
The Central and State Governments must select one or more suitable authorities within 90
days of the Bill becoming a legislation.
The functions of the competent authority include (i) issuing, suspending or cancelling
the registration of surrogacy clinics (ii)implementing standards for surrogacy clinics
(iii)investigating and taking action against violation of the provisions of the Bill (iv)
recommending modifications to the rules and regulations in accordance with changes
in technology or social conditions. Further, Appropriate authority shall exercise the
powers such as (i) search any suspected place, document and summon to any person
who is in possession of any information relating to the violation of the provisions of
this Act (ii) maintain the details of registration, cancellation, and renewal of surrogacy
clinics; grant of certificates to the intending couple, surrogate mothers and license of
the surrogacy clinics in such format as may be prescribed and submit the same to the
National Surrogacy Board.
CHAPTER VII (Section 36-43) 19
For offences such as advertising or undertaking commercial surrogacy in any way, disowning
or exploiting the surrogate child or surrogate mother, selling or importing human embryos or
18
Id. at 4
19
Id. at 4
gametes for surrogacy purposes, and conducting sex selection in any form for surrogacy, a pe
rson faces up to ten years in prison and a fine of up to ten lakh rupees.
CHAPTER VIII (Section 45-52) 20
maintains records, has the power to search and seize records, has the power to make rules and
regulations by the Central Government and the Board, has the power to protect the governme
nt or any appropriate authority from any prosecutions for actions taken in good faith, and has
the power to remove difficulties for provisions that are inconsistent with the provisions of this
bill.
THE SURROGACY (REGULATIONS ) BILL , 2020; WHETHER IT IS IN
CONSONANCE WITH THE CONSTITUTIONAL PROVISIONS
Surrogacy has been the vogue in the country for more than 12 years. The purpose of
the bill is to affirm effective regulation of Surrogacy, prohibit commercial surrogacy,
and allows ethical surrogacy. And it will also prevent the exploitation of surrogate
mothers and children born through surrogacy. Although the bill was made with the
intension of preventing this exploitation, but some of the clauses do not in consonance
with the Constitutional Provisions. As the Bill fails to pass the “Golden
Triangle” 21 test laid down by the Supreme Court which inspects the constitutional
validity of the laws enacted by the Government. This test checks the equality, liberty,
and freedom of rights, itaims is to ensure that the basic fundamental rights of
individuals are not encroached upon by the State.
RIGHT TO LIFE UNDER ARTICLE 21
Article 21 of the Constitution of India is a sacred and cherished right to life and
personal liberty, it has an important role to play in every person’s life 22 . It enshrines
the principles of Right to Life, Personal Liberty, and Right to Livelihood 23 .
20
Id. at 4
21
Minerva Mills Ltd. & Ors v. Union of India & Ors., AIR 1980 SC 1789 .
22
Durga Das Basu, Commentary on The Constitution of India, 350 (8 th edition 2010).
23
Art. 21, the Constitution of India.
In the Consumer Education and Research centre and Ors, v. Union of India 24 , the
Supreme Court stated that the expression ‘life’ under Article 21 of the Constitution
has a much wider meaning and includes the right to livelihood. This principle was also
recognized in Olga Tellis v. Bombay Municipal Corporation 25 . But this “right to
livelihood” is violated in the Surrogacy Bill as it imposes a complete ban on
commercial surrogacy threatens an important possibility for poor women to earn
desperately needed money, or to achieve some kind of financial independence or
stability for themselves and their families by giving consent to be surrogates instead
of monetary compensation. It is admitted that exploitation of poor women is rampant
in India, but a blanket ban on commercial surrogacy does not provide justice to them,
and instead, it will take away the right to livelihood that women are guaranteed in the
Constitution of India.
Further, the right to life includes the right to reproductive autonomy – that includes
the right to procreation and parenthood. 26 In Devika Biswas v. Union of India 27 , the
supreme court recognized the right to reproduction as an important component of the
‘right to life’ under Article 21. These reproductive rights of women include the right
to carrying a baby to term, giving birth, and raising children. They also include rights
to privacy, dignity, andintegrity of the body. Thus, restricting surrogacy only to
heterosexual couple and widow or divorcee women within a certain age group and
denying reproductive choices to LGBT, single persons, and older couples,
violatingtheir Article 21.
According to Constitution, State cannot interfere in the prerogative of any person
whether the child through natural process or through surrogacy. The Andhra Pradesh
High Court in the case of B.K. Parthasarthi v. Government of Andhra Pradesh 28, states
that state’s interference on procreation amount to a direct encroachment on one’s
“right to privacy” that has been recognized as a facet of right to life under Article 21
in K S Puttaswamy v Union of India 29 , where bench held that privacy of any person
covers personal autonomy relating to the body, mind, and to making choices. In a Suo
24
Consumer Education and Research center and Ors, v. Unionof India, (1995) 42 SCC 3.
25
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
26
Prabhanjan Kumar Singh, Critical Evaluation of Draft Surrogacy (Regulation) Bill, 2016, Vol. 2
JAMIA LAW JOURNAL 161 (2017)
27
Devika Biswas v. Union of India, (2016) 10 SCC 726
28
B.K. Parthasarthi v. Government of Andhra Pradesh, (1999) 5 ALT 715
29
Justice K.S. Puttuswamy & Anr. V. Union of India & Ors., (2017) 10 SCC 1.
Moto PIL filed for the deplorable condition of a female prison inmate in which high
court stated that a “woman alone should have the right to control her body, fertility
and motherhood choices” 30 . As the right to decide about reproduction is essentially a
very personal and private decision and it should be according to women’s choice and
controlled by the women’s body but in this bill, State interfere in such decision-
making process. If a woman wants to help a needy couple by providing a child of his
own, then the state cannot interfere with this humanitarian act, and rather, such acts
should be appreciated. Also, the government does not give proper reasoning that why
unmarried and childless women would not be surrogates. And in the absence of such
justification, we can assume that the state’s action to curtail the reproductive choices
of women violates a constitutional provision.
Conclusively, the Bill is clearly a violation of the right to livelihood, right to privacy,
and right to reproductive autonomy under Article 21. Even after a decade of changes
in the surrogacy bill, the bill still requires a comprehensive law that deems fit with the
current societal practices associated with Surrogacy.
RIGHT TO EQUALITY UNDER ARTICLE 14
Article 14 guarantees “equality before law and equal protection of laws to all
persons”. 31 The fundamental principle of Article 14 forbids class legislation but
permits reasonable classification. To pass test of permissible classification, the Court
has laid down two tests which must be satisfied i.e. intelligible differentia and rational
nexus 32 .
1. The classification must be based on an intelligible differentia, which
distinguishes persons, or things that are grouped together from others left
out of this group 33 .
30
Arijeet Ghosh&Nitika Khaitan, A Womb of One’s Own: Privacy and Reproductive Rights, Epw
Engage,
[Link] Last Seen 13/06/
2020.
31
Art. 14, the Constitution of India.
32
Vikram Cement v. UOI, AIR 2007 SC 7; Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34
2. The differentia must have a rational relation to the object sought to be
achieved by the statutes in question. What is necessary is that there must
be a nexus between the basis of classification and the object of the Act
under consideration 34 .
When the classification is not found on any intelligible differentia and has no nexus
with the object to be achieved, the differentiation is invalid . 35
The classification in the Bill based on of marriage by allowing on to married couples
is arbitrary and would not stand the test of reasonable classification under Article 14
of the Constitution. Especially when single parents i.e. non-married individuals or
parents are allowed to adopt children.
The Bill must be questioned as it against the striking down of Section 377 of the
Indian Constitution by the Supreme Court, which decriminalized consensual sexual
relations between two adults of any sexuality 36 . So, the Bill denies the rights of
homosexual couples to commission a child and refuses to acknowledge these couples
as ‘legitimate’.
Transgenders have also been recognized as a third genders by the Supreme Court of
India in National Legal Services Authority v. Union of India 37 which give them equal
power as gender of male and female. But the Bill fails to provide for equality of those
basic rights to every gender. The current Surrogacy Draft (Regulation) Bill, 2020
creates a specific criterion, which is very narrow for commissioning surrogacy and it
would disentitle transgenders from commissioning surrogacy.
Article 14 of the Constitution of India guarantees equality before the law. The use of
“any person” in the provision ensures that the benefit of Article 14 is not confined to
33
Aparajita Amar & Arjun Aggarwal, The emerging laws relating Surrogacy: A procreational right for
Single Parent, Transgenders and Foreigners, The SCC Online Blog,
[Link]
procreational-right-for-single-parent-transgenders-and-foreigners/,
Last Seen 13/06/ 2020
34
Amar &Aggarwal, supra note 34, at 9
35
Amar &Aggarwal, supra note 34, at 9.
36
Priya, supra note 7, at 1.
37
National Legal Services Authority v. Union of India, AIR 2014 SC 1863
citizens alone but is available to any person within the territory of India. But Bill only
allows an Indian citizento be part of surrogacy and not permitted foreigners 38 .
The Surrogacy Bill allows for surrogacy only to married Indian couples and widows or
divorcees and disqualifying others on the grounds of marital status, age, sexual
orientation, and nationality impinges upon the right to equality for being an
unreasonable classification 39 . Allowing altruistic surrogacy to those Indian citizens
who are a married couple, widow or divorcee and the exclusion of all others bears no
nexus whatsoever the object of the bill is.
The primary objective of the Bill is to prevent misuse of surrogacy and to shield
women from exploitation. But this could prove inimical, as the domestic altruistic
surrogacy will offer an opportunity for corruption and exploitation, pushing surrogacy
into unethical hands. It could allow underground abusive trade in surrogacy.
Therefore, these provisions cannot stand the test of constitutional validity.
RIGHT TO TRADE AND PROFESSION UNDER ARTICLE 19 (1) (G)
Thirdly, the proposed law is violating Article 19(1)(g) which guarantees the “freedom
of trade and profession 40 ” . Being not an absolute right, Article 19(6) 41 provides
certain grounds on which the said right can be reasonably restricted. One of them
include restrictions in the interest of the general public. And the Surrogacy
(Regulation) Bill, present itself in the ‘interest of the general public’, but it fails.
But criminalizing the commercial surrogacy completely negates the individual
freedoms and fails to strike the mandatory balance required between individual
freedom and social control. In State of Maharashtra v. Indian Hotel and Restaurant
Association 42 , the Supreme Court had held that a total ban on bar dancing is
unconstitutional as the ban stating that the “cure is worse than the disease” given that
contrary to its purpose, resulting in many women being forced into prostitution
andviolated their right to carry on one’s profession or occupation under Article 19(1)
(g) of the Constitution 43 .
38
Amar &Aggarwal, supra note 34, at 9.
39
Agrawal& Garg, supra note 12, at 3
40
Art. 19(1)(g), the Constitution of India
41
Art. 19(6), the Constitution of India.
42
State of Maharashtra v. Indian Hotel and Restaurant Association, AIR 2013 SC 2582.
43
State of Maharashtra & Anr. v Indian Hotel and Restaurants Association &[Link] Appeal No.
2705, Escr-Net,
[Link]
association-ors-civil-appeal-no, Last Seen 14/06/ 2020.
Similarly, the Bill's inclusion of a blanket ban on commercial surrogacy and the
legalisation of solely altruistic surrogacy violates Article 19(1)(g) of the
[Link] it will not meet the goal of this proposed Act, because surrogates
carrying a child for an intended couple may still be exploited, with the only difference
being that she will not be compensated.
Furthermore, any blanket or partial prohibition will merely drive the sector
underground. Second, surrogacy is a source of money for many surrogacy clinics
around the country, not only surrogate [Link], by outlawing commercial
surrogacy, the Bill jeopardises the interests of multiple parties in this multibillion-
dollar business.
As a fair constraint, it is likewise [Link] this opinion, the Bill fails to maintain
a balance between regulations and rights, revealing a legislative process that lacks the
know-how to adequately integrate the two.
LOOPHOLES AND SUGGESTIONS
Law is to act both as an ardent defender of human liberty and an instrument of a
distributor of positive entitlements. Further, the law must keep pace with the emerging
technologies so that their constructive benefits could be availed by those in
need 44 . The Bill, however, only authorises altruistic surrogacy and prohibits
commercial surrogacy. Foreigners, NRIs, and PIOs are prohibited from commissioning
surrogacy in the country.
It prevents the surrogate mother from benefiting from commercial surrogacy.
Commercial surrogacy appears to be a viable option for either of the persons involved.
To begin with, the poor surrogate mother receives financial security, while the infertile
couple receives their long awaited biologically linked kid. Aside from that, foreign currency
investment is included. As a result, a middle ground must be found that allows commercial
surrogacy while being compliant with the law. If we allow commercial surrogacy with high
fees but with restrictionsfor example, any woman can become a surrogate mother once in a
lifetime if she meets the
government's health and other requirements. In addition, the fee should be set per surrogacy
to minimise bartering between the parties.
This will benefit surrogate moms by alleviating some of their immediate financial difficulties,
and the intended parents will be able to have their biological kid.
The government endorses altruistic surrogacy, which may be counterproductive. It will provi
de opportunities for corruption, black marketing, and clandestine surrogacy. The Bill implies
that altruistic surrogates are not exploited by prohibiting commercial surrogacy, while ignorin
g the fact that unpaid surrogacy is likewise exploitative. The bill also ignores the surrogate's p
ossible loss of earnings because she will be forced to put her life on wait for two years in orde
r to finish the surrogacy process. A woman is supposed to function as a surrogate and bear all
of the physical and emotional burdens of the arrangement for free and only out of "compassio
n."because many women would not be interested in carrying someone’s child without
44
Report of The Select Committee on The Surrogacy (Regulation) Bill, 2019.
being paid for it. The irony is that through this “altruistic model” 45 , it promotes forced
labour.
Thus, the phrase 'compensatory surrogacy' would be a better fit for making up for the surroga
te mother's losses in terms of health, wages, sufferings, and mortality, among other things, an
d the term 'altruistic surrogacy' should be substituted with the term 'compensatory surrogacy.'
The bill proposes that the intended couple and the surrogate mother each receive a certificate
of eligibility, but it does not specify a time limit for issuing the certifications.
An abortion requires the approval of the competent authority as well as the consent of the
surrogate mother, according to the bill.
It does not, however, offer the intending couple any say in the abortion choice.
There is no provision in the bill for intended couples who may use surrogate moms from time
to time.
The Bill should include a provision that surrogate clinics be created at the district level with a
full-time female medical practitioner.
As a result, it is necessary to include separate provisions in the Bill to address these difficultis
.
Surrogacy is a component of Assisted Reproductive Technology (ART) (ART).
Bringing the Surrogacy Bill to the ART will be pointless.
Because the ART Bill deals with the mode, procedures, and technology of reproductive medi
cine in surrogacy, while the Surrogacy Bill deals with the implications and ethical issues arisi
ng from such arrangements, the Surrogacy Regulation Bill must be positioned and understood
in conjunction with the ART Bill.
As a result, ART regulation is a pre-requisite for the proper execution of the Surrogacy Bill.
Surrogacy legislation focuses on social, legal, ethical, and moral issues, whereas the ART reg
ulating legislation focuses on highly technical and medical issues.
The majority of countries have different laws governing ART and surrogacy. Hence, the
Surrogacy Bill should come into force only after the enactment of the ART Bill. 46
The bill makes no provision for surrogates to be compensated for lost pay during
pregnancy if they would have been working at the time of the pregnancy. However,
45
Id. at 12.
46
Id. at 12.
the government should provide adequate remuneration to the surrogate and control it
such that there is no room for negotiation.
It is necessary to include a provision in the Bill requiring every reproductive clinic to
include a counselling department to determine if the surrogate mother arrived
voluntarily or through force. This could be a good way to check on the surrogate
mother's mental health. The surrogate mother should receive unbiased counselling
from the counselling team regarding the entire surrogacy process as well as any health
issues that may arise as a result of it. To ensure that the surrogate mother is aware of
We must also consider the likelihood of an unforeseen situation, such as a schism or
divorce between the intended parents, leading to the child's abandonment. For the best
interests of surrogate children, clear rules on the duties and responsibilities of
intending spouses and surrogate mothers in circumstances of surrogate child
abandonment by intending parents must be included in the Bill. If a disagreement
emerges, the child should be recognised in need of care and protection right away.
Surrogacy is a necessity in today's culture. Surrogacy is sometimes the last resort for
infertile couples who are unable to have a biological child. In a civilization, a child's
role would not be fulfilled.
Childlessness has an impact on a family's social and psychological well-being, as well
as society as a whole. The goal of a fundamental right is to make life more
meaningful, complete, and worth living, and having a child makes a couple's life more
meaningful and complete. As a result, surrogacy should be covered by fundamental
rights.
CONCLUSION
The Supreme Court in Murlidhar Aggarwal & Anr. v. State of U.P. 47 noticed that
public policy changes from generation to generation and even within the same
generation in any specific community. If public policy is always stuck in the same
mould, it is pointless. As a result, the government should adopt regulations that are
compliant with citizens' fundamental rights and reflect changing societal mores, as
47
Murlidhar Aggarwal & Anr. v. State of U.P., (1974) 2 SCC 472 .
well as take every measure that makes this option safe and dignified, as surrogacy is a
gift from medical science to us.
Furthermore, the Bill is unsuccessful in maintaining a balance between regulations and
rights and it is not constitutionally valid as can be seen from the interpretation of
Article 14, 21 and 19(1)(g) as well as from the decision given by Hon’ble Supreme
Court in the landmark judgments. But this Bill can bring a change if loopholes
mentioned above are dealt with, it will result in better implementation of this bill
which can go a long way in protecting the rights of surrogate mother.
