The Indian Ethos In Surrogacy
In 2008, the Supreme Court of India in the Baby Manji Yamada vs. Union of India case highlighted the lack of regulation for surrogacy in India. In 2009, the Law Commission of India observed that surrogacy arrangements in India were being used by foreign nationals, and the lack of a comprehensive legal framework addressing surrogacy could lead to exploitation of poor women acting as surrogate mothers. Further, the Law Commission recommended prohibiting commercial surrogacy, allowing altruistic surrogacy and enacting a law to regulate matters related to surrogacy. In 2015, a government notification prohibited surrogacy for foreign nationals. The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha on November 21, 2016. The Bill was passed by the Lok Sabha on December 19, 2018.
- Infertility is defined by the bill as the inability to conceive after five years of unprotected coitus or other medical condition preventing a couple from conception. However, the problem arises that this does not cover all cases. The bill fails to take into consideration where a mother cannot carry a child to term due to medical complications or the woman suffers numerous miscarriages. here are also other medical conditions like multiple fibroids in the uterus, hypertension, and diabetes that affect successful pregnancies.
- The definition of a close relative is not defined. One can look at the other legislations in India, but that does not provide a concrete answer. For example, the Transplantation of Human Organs and Tissues Act, 1994 specifies that a living donor has to be a ‘near relative’. It defines a ‘near relative’ to include spouse, son, daughter, father, mother, brother or sister. The Companies Act, 2013 defines a ‘relative’ as: (i) members of a Hindu Undivided Family; (ii) husband and wife; or (iii) other relations prescribed under the Act.
- It is to be noted that medical infertility is usually defined as the inability to achieve pregnancy after a year or two of trying to conceive a child through regular sexual intercourse. Hence, there is no reason to compel the intended couple to wait for five years.
- One of the major criticisms against surrogacy is that, it may be used to produce children of desired sex and with desired characteristics, i.e. surrogacy may be used for the creation of designer babies. However, the Bill is silent about this aspect
- Rights of Intended Couples: In a surrogacy practice the following rights of the intended couple have been identified as essential, (a) the right to select surrogate mother of their own choice subject to restrictions by the State on grounds of public interest; (b) right to impose reasonable restrictions upon surrogate mother as are necessary for the normal development of the child; (c) right to information and visit surrogate mother during pregnancy; (d) right to custody of the child within 72 hours of its birth. However, the Bill does not make any reference about these rights.
- Upon meeting eligibility conditions outlined in the Bill, a close relative can act as a surrogate or help in surrogacy by donating her egg or oocyte or otherwise. This provision differs from current surrogacy regulations. The current ICMR guidelines (2005) do not allow the surrogate mother to be an egg donor for the intending couple who have a surrogacy arrangement with her. Further, the Draft Assisted Reproductive Technology (Regulation) Bill, 2014 also stated that an egg donated by a relative of the couple seeking surrogacy must not be accepted by clinics.
The surrogate mother being allowed to donate her egg as a part of the surrogacy arrangement may have adverse medical implications as the definition of ‘close relative’ is unclear. As per the Bill, the ‘surrogate mother’ is required to be genetically related to the intending couple. If a surrogate mother is a close relative of the male member of the intending couple (e.g., his sister), and is allowed to donate her egg for the surrogacy, it may result in congenital anomalies for the surrogate child. According to the World Health Organisation, when biological parents are related by blood, the prevalence of rare genetic congenital anomalies increases.
- Under the bill, authorization for an abortion is mandatory, however, the bill fails to provide a time period in which such authorization can be given. Furthermore, the act of abortion requires consent from the surrogate mother and authorization by the appropriate authority. The bill states that the child shall be considered the biological child of the intending couple, however, the couple has no say in abortion even if a child being born out of surrogacy arrangement is at the risk of physical or mental abnormalities
- If a surrogate mother renders surrogacy services other than those permitted under the Bill, it shall be presumed that she was compelled to do so by: (i) her husband; (ii) the intending couple; or (iii) any other relative. They will be liable for abetting the offence of initiating commercial surrogacy. The burden of proof is on these parties to establish that they did not compel the surrogate mother.
Ordinarily, the burden of proof is on the prosecution to prove that a certain wrongful act was committed by the defendant, and not on the defendant to prove that he did not commit that act. In some laws where the burden of proof is reversed, there are typically some circumstantial conditions which the prosecution needs to prove in order for the court to presume that the defendant has committed the crime.
This bill is necessary due to numerous reports regarding the exploitation of surrogate mothers. Women were locked in “hostels” and were not allowed to interact with their friends and families during the pregnancy. Multiple pregnancy can lead to health issues. Women put their bodies through this for a small amount. Maybe times, the intended parents refuse to take the baby after birth due to reasons such as health defects etc. The Indian Council of Medical Research states that 2000 babies are from commercial surrogacy and CII states that this a $2.3 billion-dollar industry. This industry remains unregulated and is highly exploited. This is an attempt to look out for the safety of the women and the babies.
The adoption of Surrogacy (Regulation) Bill, 2016 creates a regulatory framework for safe and regulated surrogacy practices in India. Nevertheless, the proposed ban imposed by the Bill on commercial surrogacy and exclusion of foreign couples from availing surrogacy services are said to be the biggest weakness of this Bill. The exploiting of surrogate women and children and protect the interests of both are kept in mind while framing this bill.
The Bill could have stipulated an outline for establishing an effective mechanism for ensuring that surrogacy contracts are made properly by the parties and are not discriminatory or adversely affecting the interests of the surrogate women. Further, the Bill could have introduced a process of ‘Vetting of Surrogacy Contracts’, i.e. every surrogacy contracts shall be reviewed by an appropriate competent authority. It should be made mandatory for the parties to submit their surrogacy contracts before the competent authority for vetting prior to the initiation of surrogacy procedures. Only those surrogacy contracts which have been reviewed and approved by the competent authority shall be considered as valid and enforceable. The proposed National Surrogacy Board and State Boards can easily implement the process of ‘Vetting of Surrogacy Contracts’. Thus it is submitted that the proposed ban on commercial surrogacy and restriction to avail surrogacy by foreign couples is an improper way to deal with the issue.
Although formulated to curb the exploitation of women and trafficking of children; again, it exhibits the general policy of a state banning or censoring an activity almost completely, instead of looking at ways to use laws to regulate and improve the situation. Additionally, while most countries, especially in Europe, only allow altruistic surrogacy, surrogate mothers are not limited to relatives, and medical expenses are covered. It can be said that although India has not banned surrogacy completely (like Germany, France and Italy), the laws need to be re-looked so that they actually benefit surrogate mothers, prospective parents, and children born from surrogacy.
Slowly but steadily, the government is proving true what was left unsaid all this while: homophobia, discrimination towards non-heteronormative relationships, and a paternalistic enforcement of cultural norms. The bill exhibits a lack of understanding of agency which ought to be given to a woman; that a woman should be able to make decisions when the question is with regard to her body. There is no need for the State to be the Big Brother.
 Baby Manji Yamada vs. Union of India and Another; (2008) 13 SCC 518.
 Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy, Report No. 228, Law Commission, 2009,
 Instructions regarding commissioning of surrogacy, Ministry of Health and Family Welfare, November 4, 2015, http://www.icmr.nic.in/icmrnews/art/DHR%20notification%20on%20Surrogacy.pdf.
 The Surrogacy (Regulation) Bill, 2016
 Health problems in pregnancy, U.S. National Library of Medicine,
 Christian Nordqvist, Infertility in men and women, https://www.medicalnewstoday.com/articles/165748.php
 Draft Assisted Reproductive Technology (Regulation) Bill, 2014,
 Fact sheet: Congenital anomalies, World Health Organisation, September, 2016,
 Rajeev Kumar vs. State of Haryana, AIR 2014 SC 227; Sanjiv Kumar vs. State of Punjab, (2009 ) 16 SCC 487.