SURROGACY: Whether the Issue has been appropriately dealt under the Indian framework of law?

The Black’s Law Dictionary defines surrogacy as means the process of carrying and delivering a child for another person. In Latin “Surrogatus” means a substitute i.e. a person appointed to act in the place of another.

There are two types of surrogacy- altruistic surrogacy where the surrogate mother receives no financial rewards for her pregnancy or the relinquishment of the child to the genetic parents except necessary medical expenses and commercial surrogacy where the surrogate mother is paid over and above the necessary medical expenses.  There are various reasons why people go for surrogacy such as due to genetic challenges, infertility, certain medical conditions, personal choices etc.

Surrogacy is considered as a grave issue because it is believed that in surrogacy, the woman rents her body, often under coercion and the child born is treated as a commodity. Surrogacy is thus considered as a new form of exploitation and trafficking in women.  Beyond the basic right of every individual to human dignity as enshrined in the major international and regional human rights law instruments, the trafficking in ova and surrogacy have far reaching implications on women’s rights, the right to an adequate standard of health, the right to be free from discrimination, the right to a family, and the rights of the child.

India has raised concerns because surrogacy is highly unregulated and open to exploitive situations. According to various reports Commercial surrogacy has increased in India. It is the poor, rural and marginalized sections of the society who are victims. Advantage is taken of their destitute situation. They are promised handsome money in return of being a surrogate mother.

In India Surrogacy (Regulation) Bill, 2016 has been formulated in order to address this issue. However the Surrogacy (Regulation) Bill, 2016, raises some serious legal and ethical concerns. The proposed law is mostly in line with the laws in other countries and the 228th report of the Law Commission of India. This provides for a blanket ban on commercial surrogacy and only permits altruistic surrogacy by a close relative, who must have given birth to a child. This in itself is problematic as it could violate the woman’s fundamental right to livelihood – in this case through surrogacy – as guaranteed under Article 21 of the Constitution. Also, the restriction that the surrogate must only be a ‘close relative’ of the commissioning parents may result in ethical issues wherein the child and the surrogate develop an intimate bond, given that both are known, accessible and related to each other. Secondly if the surrogate wishes for her name to remain undisclosed, how will her privacy be protected when the deal will be happening within the family? Further the commissioning couple may face difficulties in finding a close relative who will willingly render the surrogacy service. It cannot be denied the possibility that prohibiting commercial surrogacy may thereby turn surrogacy into a ‘black market business’, or lead to the ‘victimisation and coercion’ of subjugated and oppressed women in marital homes to bear a child for their relative. Importantly the question that remains to be answered is what steps the government plans to take in order to tackle the issue of violation of a woman’s right to health and bodily integrity that may arise as a result of this provision?

A further provision of the Bill allows surrogacy only to legally-married infertile Indian couples, who have been married for at least five years. Thus the couple has to wait for five year before going for surrogacy. This requirement of a five-year wait after marriage to enter into a surrogacy arrangement and the age restriction of the commissioning parents – for the father to be between 26 and 55 years and the mother to be between 23 and 50 – do not set out a rational nexus with the objects that are sought to be achieved. Also the decision to keep single men and women, LGBTs, divorced and judicially separated couples, as well as live-in couples out of the purview of the draft Bill is retrograde. The fact that being LGBT or being in a live-in relationship is not illegal per se, disallowing the right to choice vis-à-vis surrogacy is a sheer violation of their right to equality guaranteed under Article 14.

The foreigners are outside the realm of surrogacy in India and the reason given is that to avoid complexities related to nationality and prevention of Indian women from been exploited. However, barring NRIs from opting for surrogacy in India appears to be an unreasonable provision as there isn’t any reason to treat them differently from citizens living in India.

One can state that the Bill has been framed without addressing the actual concerns of the surrogacy arrangements in the country and there are chances that it will do more harm than good to the society. Thus the need of the hour is to regulate the unregulated surrogacy market to ensure and protect the rights of surrogates vis-a-vis the rights of the commissioning parents and children born as a result of such arrangements and this calls for a strong and realistic law to be framed.

By Adv Pinny Pathak




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