PROJECT SUBMISSION FOR FAMILY LAW – I

LEGALITY OF
SURROGATE
ARRANGEMENTS IN
INDIA:
A STUDY

FIFTH SEMESTER
BA LLB(HONS.)
DATE: 18.11.2020
 TABLE OF CONTENTS

I. WHAT IS SURROGACY?......................................................................................4
Introduction.......................................................................................................4
Historical Background........................................................................................5
Indian Context...................................................................................................6
II. COMMERCIAL SURROGACY IN INDIA...............................................................7
III. REGULATION OF SURROGACY IN INDIA...........................................................9
Legal Framework...............................................................................................9
Judicial Precedents..........................................................................................11
IV. SOCIO-ETHICAL CONSIDERATIONS................................................................13
V. ANALYSIS.........................................................................................................15

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 I. WHAT IS SURROGACY?

Introduction

Nature has bestowed the beautiful capacity to procreate a life within women and every
woman cherishes the experience of motherhood. Right to reproduction is an innate right
of an individual. The desire for children among couples is an universal phenomenon.
Parenthood is a life changing and eternally rewarding experience. The pain and agony of not
fulfilling the dream of parenthood is immeasurable. The science of infertility treatment has
moved forward by leaps and bounds. Every society across the world has given primary
importance to the institution of family. When two individuals come together and enter into
a matrimonial bond, a new family comes into existence and such family becomes complete
with the birth of the children. From the ancient times, children are considered as a necessity
for the continuation of the family lineage and a source of happiness for the parents.
Psychologists points out that birth of a baby creates a bond between the spouses which can
help stressful marriages to sustain in the long run.
However due to various reasons, a large section of the society are unable to have their child.
Research has stated that one in six couples have such problems. The absence of a child is
considered as a stigma to the family. There are many instances where the inability to
have a child led to matrimonial breakdown. The inability to have a child which is known as
infertility in medical terms is a global problem. According to the WHO Report the incidence
of infertility across the globe including India is around 10-15 percent. 1
Surrogacy, has emerged as a new level of scientific advancement for reproduction with
the usage of womb of a woman to reproduce children for another woman. One of the
most efficient methods to overcome both biological and social infertility is ‘surrogacy.’
Surrogacy has provided opportunities to have a genetically related child to the couples
who are unable to reproduce through artificial reproduction and in vitro fertilization.
Surrogacy has become an attractive alternative for couples and individuals who wish to have
a child biologically related to them. The concept of surrogacy has become widely recognized
all over the world. Surrogate motherhood is considered as a boon by infertile couples as it is
revolutionary hope for having a child.2
The ART Bill has defined surrogacy as ‘an arrangement in which a woman agrees to a
pregnancy, achieved through assisted reproductive technology, in which neither of the
gametes belong to her or to her husband, with the intention to carry it to the term and hand
over the child to the person or persons for whom she is acting as a surrogate.’ 3
1
Annual Report 2008-2009 Ministry of Health and Family Welfare, Government of India available at
http://monh.nic.in/FINAL_HEALTH_MINISTRY_ANNUAL_REPORT_2008_09.pdf
2
Kusum Jain,’Surrogate Motherhood : Some Legal and Moral Problems in Bio Ethics’, Vol 25 Issue 4, 1983
Journal of Indian Law Institute( 546 to 558) at 547.
3
Yashomati Ghosh, “Surrogacy and Law: An Affirmative Approach to Deal with the Ethical and Legal Dilemma”,
Vol. II.Issue 1, 2011 Journal of Law Teachers of India (83 to 92) at 85.

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Today, Indian surrogacy laws make it illegal for foreign intended parents to complete a
surrogacy in India. The only people who can complete a commercial surrogacy in India today
are Indian intended parents who have been married for at least five years. 4

Historical Background

Surrogacy is not a new practice. It an ancient practice. This practice dates back to biblical
times. The first surrogate mother in history is believed to have lived somewhere near the
city of Hebron, the land of Canaan, two thousand years before the birth of Christ. Sarah,
infertile wife of Abrahim, commissions her maid Hager to bear a child by persuading
Abrahim to sleep with her. Abrahim was 86 years that time. But despite of his age he was
still able to conceive a child. In 1910 BC Hager gave birth to a son called Ishmael. Ishmael
was the first child in history born due to the so called traditional surrogacy programme.
The second surrogacy programme was carried out in Summer Mesopotamia in the middle
of the XVIII century BC. Rachel, wife of Jacob, commissioned her maid Billah to have a child
by convincing Jacob to sleep with her.
Surrogacy was quite common in ancient Egypt. Many of the Egyptian Pharahos asked their
concubines to help them in producing an offspring. The ancient rulers of Egypt were
believed to directly descend from the God of Sun Ra. Artificial insemination has been
studied for several centuries already. In 1677 the inventor of microscope, the Dutch
scolar. A.Leeuwenhoek examined human seven and was the first to detect spermatozoons.
He made a suggestion that a spermatozoon was a kind of seed, and a woman’s
uterus created a favoureable environment for its spouting. 5 In 1790 Scottish surgeon and
venerologist John Hunter, artificially inseminated a woman and this was the first artificial
insemination in history. In 1880 the first IVF attempt in history was listed in guinea pigs. In
1891 a French scientist Heape was the first to carry out successful IVF by transferring an
embryo from one guinea rabbit to another one.
Starting with 1920 artificial insemination by the husband’s or a selected donor’s sperm
has become widely spread in infertility treatment. The world’s first IVF baby, Louise Brown,
was born on July 25, 1978, in the UK through the efforts of Dr. Robert G.Edwards and Dr.
Patrick Steptoe. The world’s second and India’s first IVF baby, Kanupriya, alias Durga
was born 67 days later on October 3, 1978 through the efforts of Dr. Subhas
Mukherjee and his two colleagues in Kolkota. The first gestational surrogacy programe was
implemented in Ann. Arbor (MI, US) in April 1986. The first surrogacy programme
implemented among relatives, when 48 years old Pat Anthony successfully bore and
delivered three grandchildren for her own 25 year old daughter Karen Ferreira Jorge, was
carried out in South Africa in 1987.
4
Intended Parents, Surrogate, https://surrogate.com/intended-parents/international-surrogacy/surrogacy-in-
india/
5
Available at http://www.indiaparenting.com/infertility-treatments-and-solutions/479_4466/surrogacy-the
history-and-today.html

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Indian Context

Hindu mythology also offers instances of surrogacy and reflects the secrecy that still
surrounds surrogacy practice. In Bhagavata Purana, Vishnu heard Vasude’s prayers
beseeching Kansa not to kill all sons being born. Vishnu heard these prayers and had an
embryo from Devaki’s womb transferred to the womb of Rohini, another wife of Vasudev.
Rohini gave birth to the baby Balaram, brother of Krishna, and secretly raised the child while
Vasudev and Devki told Kansa that the child was born dead.6
In the Mahabharat, Gandhari did not deliver a child rather delivered a semi solid
material which was divided by Maharishi Vyas into 100 pieces and planted them in different
pans. Thus, the 100 Kauravas were borm. Similarly, Maharishi Bhardwaj saw a divine nymph
coming out of water after having a bath and seeing such a beautiful woman, he felt discern
and deposited his semen in pot used for yagna called Darona. This is from where
Dronacharya was born and named after the vessel. Thousands of years after the biblical
events in 599 AD, the 24th Trithankar, Mahavira, was born after an embryo had
been transferred from one women’s womb to another one’s. He is one of the key figures
of the Jain Mythology. Devananda, wife of a Brahmin named Rishabdeva conceived him. The
gods, ingeniously, transferred the embryo to the womb of Trishala. 7
The world’s second and India’s first IVF baby, Kanupriya, alias Durga, was born 67 days
later on October 3, 1978, through the efforts of Dr. Subhas Mukherjee and his two
colleagues in Kolkata. The birth of baby Kanupriya (also known as Durga), through the novel
procedure was marked by tremendous controversy.

II. COMMERCIAL SURROGACY IN INDIA

It is hard to imagine the child as commerce. Babies, after all are the product of love, not
money, a conception that occurs far away from any commercial activity. Poor parents
across time and place have viewed their children as potential economic assets, weighing
6
Jasdeep Kaur, “Surrogacy: A Paradox regarding Motherhood rights with Special Reference to India”:, Vol. II
No.1, 2012 The Legal Analyst (113 to 121) at 114.
7
Available at http://www.indiaparenting.com/infertility-treatments-and solutions/479_4466/surrogacy-the
history-and-today.html

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their eventual economic contribution-in the rice field or factory or manor- against the
costs of carrying them through childhood. Likewise, surrogacy has become a commercial
business in countries like India, which has given rise to many questions leading to
political debate. Feminists have argued over the alienability of woman’s bodies; legal
scholars have probed the contractual and jurisdictional issues. The market for surrogacy is
large and is growing. There are thousands of potential parents across the world with
both the desire and the wherewithal to hire another woman to bear their children.
Commercial surrogacy, or “wombs for rent,” is a growing business in India. 8 Critics have
described the popularity of surrogacy arrangement in India as ‘baby booming business’,
‘womb on hire’, ‘baby firm’, ‘parenthood by proxy’. 9 Surrogacy has turned a normal
biological function of a woman‘s body into a commercial contract. Surrogate services
are advertised, surrogates are recruited and operating agencies make large profits.
The commercialization of surrogacy raises fears of a black market and baby-selling,
breeding farms, turning impoverished women into baby producers and the possibility of
selective breeding at a price. In India surrogacy is becoming a booming industry due to the
fact that surrogate mothers are easily available and the entire cost of this method is
very less as compared to other countries. A high demand of surrogates has been
witnessed in India because of the comparative ease with which the foreigners can find
surrogate mothers. Non-intervention of law had made surrogacy a knotty issue in
India. At present surrogate motherhood in India involves a business of $445 billion, faces
severe pressures from different social concerns. India is the only country in the world
which has legalized commercial surrogacy. Legalised in India in 2002, it is now a half-a
billion-dollar a year industry, with surrogacy services offered in at least 350 clinics.
On average, most Indian surrogate mothers are paid in instalments over a period of 9
months. If they are unable to conceive they are often not paid at all and sometimes they
must forfeit a portion of their fee if they miscarry. The amount of money given to a
surrogate mother in India may appear very miniscule from any reasonable perspective,
however, the amount may serve as the economic life blood for the families, and will be
spent on the needs of the family (a house, education of the children, medical treatment).
Indian clinics are at the same time becoming more competitive, not just in the pricing, but in
the hiring and retention of Indian females as surrogates. Clinics charge patients between
$10,000 and $28,000 for the complete package, including fertilization, the surrogate's fee,
and delivery of the baby at a hospital. Including the costs of flight tickets, medical
procedures and hotels, it comes to roughly a third of the price compared with going through
the procedure in the UK. In India there has been rise of more than 150% of surrogacy cases
in the past few years. The hot places to find surrogate mothers in India are Anand town in
Gujarat State, Indore city in Madhya Pradesh, Pune, Mumbai in Maharashtra State, Delhi,
Kolkata and Thiruvanantpuram. Private clinics in Indore, Pune, Surat and Anand have
witnessed mushrooming growth. These clinics act as middlemen between the foreign
couples and the willing surrogate mothers. Childless couples from all over the world are
8
Available at http://www.stanford.edu/group/womenscourage/Surrogacy/
9
Yashomati Ghosh, “Surrogacy and Law: An Affirmative Approach to Deal with the Ethical and Legal Dilemma”,
Vol. II.Issue 1, 2011 Journal of Law Teachers of India (83 to 92) at 84.

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coming to India in search of surrogate mothers due to the availability of poor Indian
surrogate mothers at a much lower costs. Several American, Russian and British women are
duly registered with the Akankshya Clinic of Anand and the Bhopal Test Tube Baby Centre
for the procedure. Generally surrogacy arrangements are drawn up in a random fashion and
can be exploitative especially since surrogates are mostly from socio-economic weaker
sections.10 The very act of commercial surrogacy in India is exploiting the poor and
vulnerable surrogate mothers and exposing them to unnecessary and unwanted risks. They
have no legal representation and no rights under the contract: they do not have a grace
period following birth within which they can change their mind, and they are owed no
compensation whatsoever should they fail to produce a child. 11 The surrogacy market in
India is estimated to be between Rs 1,000 and 5,000 crore, considerably lower (about, a
fourth of what they would cost in the United States). That has again increased the
international confidence in going in for surrogacy in India.
Commercial surrogacy has been perceived to be the root cause of all evil that plagues
surrogacy in India. Therefore, the Statement of Objects and Reasons accompanying the Bill
of 2019 highlights that the legislation aims to curb the unethical practices surrounding
commercial surrogacy including the exploitation of surrogate mothers. In doing so, the
recommendation of the Law Commission to ban commercial surrogacy has been
implemented and in this way, the Bill of 2019 makes a departure from the Bills of 2008 and
2014 which permitted commercial surrogacy. 12

III. REGULATION OF SURROGACY IN INDIA

Legal Framework

The legal aspect of surrogacy varies from one jurisdiction to another jurisdiction. The
international approach to surrogacy has been divided into three aspect- Free market,
10
Rekha P. Pahuja,”Problem of Surrogacy-A Critical Study” , Vol.XII. Issue 2, 2011 Naya Deep, The Official
Journal of Nalsa (112 to 118) at 117.
11
Available at http://onlinelibrary.wiley.com
12
Chinmoy Pradip Sharma, Surrogacy Laws in India – Past Experiences and Emerging Facets, Bar and Bench,
https://www.barandbench.com/columns/surrogacy-laws-in-india-past-experiences-and-emerging-facets

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regulated and prohibited. Some jurisdiction completely bans surrogacy declaring
commercial surrogacy as a criminal offence, while on the other hand some jurisdiction
allows surrogacy on limited grounds of altruism. The law relating to surrogacy differs from
one jurisdiction to another. Some jurisdiction completely bans surrogacy declaring
commercial surrogacy as a criminal offence, while on the other hand some jurisdiction
allows surrogacy on limited grounds of altruism.
India is the only country where surrogacy is neither banned nor completely regulated.
Currently there is no law in India for regulating surrogacy. As it is not directly declared as
unenforceable by law, it is deemed to be enforceable and fully valid. After several years of
discussion and debate, primarily among the ICMR, the National Academy of Medical
Sciences, and practitioners of ART, the Ministry of Health and Family Welfare published the
non-binding National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in
India in 2005. In the absence of any codified law as the situation exists only, in respect of
surrogacy arrangements, the ordinary civil law of the land would be applicable in respect of
surrogacy, also, since there is no specific law on the subject to govern such arrangements.
The Indian Council of Medical Research has drafted the Assisted Reproductive Technology
Bill, 2008 to regularize and legitimate different forms of reproductive technologies, including
commercial surrogacy. The Law Commission of India in its 228th Report it has reasoned as
to why surrogacy laws are needed. The ART Bill even though made an effort to regulate
surrogacy has been criticized by a large number of scholars on the ground that it promotes
the interest of the medico-business lobby and does not provide an adequate protection to
the rights of the surrogate mothers and children.
Law governing surrogacy assumes great importance in India because India has often been
termed as the ‘surrogacy capital of the world’. Prior to 2008, surrogacy (essentially
commercial) was being briskly carried out in India without any efforts by the Government to
set up a statutory regulatory mechanism. The Indian Council for Medical Research (ICMR)
formulated certain Guidelines in 2005. 13 However, these Guidelines did not have any
statutory basis and surrogacy continued to remain an unchartered territory in the Indian
legal landscape.
The turning point came in the year 2008 when the Supreme Court was called upon to deal
with a case revolving around surrogacy. The case of Baby Manji Yamda v. Union of India 14
merely pertained to obtaining travel documents for a baby with Japanese parents conceived
and born in India through commercial surrogacy. Though the issue of the legality of
commercial surrogacy under Indian law was not raised, the Supreme Court made an
observation that commercial surrogacy is legal in India.
The timing of the judgment coincided with the formulation of the Assisted Reproductive
Technology (Regulation) Bill, 2008.15 Unfortunately, no steps were taken to table the Bill of
13
National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, Indian Council of
Medical Research, 2005, http://icmr.nic.in/art/art_clinics.htm
14
Baby Manji Yamada v. Union of India, (2008) 13 SCC 518 : (2008) 4 KLT 306
15
Draft Assisted Reproductive Technology (Regulation) Bill, 2014,
http://www.prsindia.org/uploads/media/draft/Draft%20Assisted%20Reproductive%20Technology
%20(Regulation)%20Bill,%202014.pdf.

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2008 before Parliament. This prompted the Law Commission to suo moto take up the issue
of surrogacy for research. The exercise culminated in its 228th Report submitted in August
2009 where the Law Commission mooted the proposal for a revamped legislation to
regulate the process of surrogacy in India.
Acting upon the recommendation of the Law Commission, an improved Assisted
Reproductive Technology (Regulation) Bill was prepared. After several modifications, the
Assisted Reproductive Technology (Regulation) Bill, 2014 came into being. However, this Bill
met with the same fate as the Bill of 2008 and did not see the light of day.
Meanwhile, the Surrogacy (Regulation) Bill, 2016 was conceived. The Bill differed from the
Bill of 2014 in many respects which are discussed in subsequent paragraphs. This Bill was
passed by the Lok Sabha on 19.12.2018. However, finality continued to elude the surrogacy
law and the Bill was not introduced in the Rajya Sabha. Subsequently, the Bill of 2016 in the
exact same form was re-introduced in the Lok Sabha as Surrogacy (Regulation) Bill, 2019 and
was passed on 05.08.2019.
The law on surrogacy in India in the present form of the Bill of 2019 contains a few
noteworthy facets. The major overhaul comes in the form of a complete embargo on
commercial surrogacy. The Bill also envisages prohibition on foreign nationals from availing
surrogacy services. Another striking feature is that surrogacy is sought to be restricted to a
married couple to the exclusion of unmarried/ single persons and persons in live-in
relationships.
The definition of the term ‘commercial surrogacy’ has been purposely kept extremely wide
to encompass all possible methods. Additional layers of safety mechanism have also been
put into place by requiring the surrogate mother to be a ‘close relative’ of the couple and
restricting a woman’s participation in the surrogacy process as once in a lifetime measure.
By restricting surrogacy in India to ‘altruistic surrogacy’ i.e., surrogacy without extending any
benefits, the Bill of 2019 strives to bring surrogacy law in India at par with developed
nations such as the UK and Canada which also prohibit commercial surrogacy.
Foreign nationals from all over the world have benefitted from the surrogacy in India. India
provided an unregulated cheaper alternative to other nations of the West coupled with
proper medical attention and infrastructure. The Bill of 2008 permitted a foreign couple to
seek surrogacy services in India. This was overturned in the Bill of 2014 restricting surrogacy
to Indian nationals, PIOs, and NRIs. Excluding foreign nationals from the purview of
surrogacy services in India through the Bill of 2019 is a step in the right direction. This
development comes in the wake of serious allegations of misdoings, exploitation, and
irregularities reported in surrogacy cases involving foreign nationals. It is also a logical
consequence arising out of the ban on commercial surrogacy envisaged by the Bill of 2019.
However, restricting surrogacy to a married couple seriously impinges upon the rights of
single persons, LGBT persons, and persons who are in live-in relationships. On the other
hand, there is no prohibition on these classes of persons adopting a child. As such, the law
of surrogacy is at loggerheads with the law of adoption in India. Such a restriction also
militates against the concept of equality as enshrined under Article 14 of the Constitution of

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India. While legislation can make room for reasonable classification, such classification has
to bear a nexus with the object sought to be achieved by the legislation. 16 The primary
objective of the Bill of 2019 is to prevent unethical practices arising out of surrogacy services
in India. Allowing surrogacy rights to a married couple to the exclusion of all others bears no
nexus whatsoever this object. Therefore, such a provision cannot stand the test of
constitutional validity.
Moreover, the term ‘close relative’ which the surrogate mother has to be is not defined in
the Bill of 2019. One of the challenges that a couple is bound to face is to identify and then
convince a ‘close relative’ to act as a surrogate mother. A possibility worth exploring is to
allow both friends and family to become a surrogate mother. This will increase the zone of
consideration and decrease the hardship for a couple to find a surrogate mother.
The Bill of 2019 was recently introduced in Rajya Sabha where the provisions were debated
threadbare and the inadequacies discussed above were highlighted. With a view to
addressing them, the Bill has been referred to a 23 member Select Committee of Rajya
Sabha. The need of the hour is a holistic and well-rounded legislation regulating surrogacy
which will stand the test of time and constitutionality. It is therefore imperative that the
deliberations of the Committee are carried swiftly to iron out the creases and re-introduce
the Bill in the next session of Parliament.

Judicial Precedents

1. Baby Manji Yamada vs Union of India

Baby Manji Yamada was a child born to an Indian surrogate mother for a Japanese couple
who before a month of the child’s birth separated and the future of the child was left in
dark. The biological father, Ikufumi Yamada wanted to take the child to Japan but the legal
framework had no such provision for such a case nor did the Japanese government permit
him to bring the child back home. In the end, the Supreme Court of India had to intervene
and the child was allowed to leave the country with her grandmother. The biggest impact of
the Baby Manji Yamada decision has been that it spurred the government of India to enact a
law regulating surrogacy. The Supreme Court of India in 2008 held surrogacy permissible in
India after Manji’s case which increased the international confidence in going in for
surrogacy in India.

2. Jan Balaz Vs Anand Municipality

Gujarat High Court ruled that the birth certificate of the child born through surrogacy will
carry the name of the surrogated mother as against the biological mother and the child
would be granted a passport of India which certifies him as the Indian Citizen and the
16
Anil Malhotra ,Ranjit Malhotra, Surrogacy In India.1st Edition(New Delhi: Universal Law Publishing Co. Pvt.
Ltd. 2013) at 8-10.

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surrogate mother in turn had to give the child to German couple in adoption, who had
sought the sercices of Indian surrogate mother.17
The Supreme Court is still seized of an appeal against this decision and during its hearing
Supreme Court felt a grave need on the subject which made way for the proposal of the bill
of Parliament. All these cases have provoked academic interest and has brought the
surrogacy ban bill into existence that rules out surrogacy rules for foreign citizens
approaching Indian mother. The ban is already in place through a letter dated 28th
September, 2015 from ICMR to all clinics in India that directs them not to assist foreign
couples on having a child through an Indian surrogate mother.

IV. SOCIO-ETHICAL CONSIDERATIONS

The underlying idea behind surrogacy is a noble one as it is based on the altruistic principle
of doing good to others i.e. one woman helping another woman. The religious texts of
Hinduism and Christianity highlight the practice of surrogacy in ancient times. Some of the
moral and ethical issues relating to surrogacy are as follows:

1. Harm to surrogate mother

17
Jan Balaz v. Anand Municipality, 2009 SCC OnLine Guj 3913

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Most Indian women act as surrogate mothers due to poverty or other economic necessity.
However, surrogacy technology may involve some complications and cause harm to the
health and life of the surrogate mother. This raises the important issue of liability for the
harm caused or suffered by a surrogate mother. If there is no medical negligence on the part
of the doctors and other medical staff, it would be difficult to fix the liability and thereby
indemnify the loss suffered by the surrogate mother.18

2. Interest of the Child

Surrogacy generally involves payment of money to the surrogate mother for delivering and
handing over the child to the commissioning parents. Thus, it is criticized as equivalent to
buying and selling a child. It is argued that it would lead to selection of sex and traits in
a child, i.e. creation of designer babies. Thus, surrogacy would result in treating a child as a
product which is considered as morally wrong and unethical. It is also observed that the
process of surrogacy involving in vitro fertilization usually results in birth of triplets or
quadruplets. This may harm the interest of the child, as the commissioning parents may not
be in a position to look after such number of children born against their wish. Further, it is
argued that surrogate children may be born with defects. Another contentious issue in the
process is the determination of parentage and custody of child. Surrogacy involves
participation of three or four or five adults. So it is difficult to determine the
parentage of child.

3. Dignity of women
Right to dignity is one of the inherent and cherished rights of every human being. It is
argued that surrogacy degrades the inherent dignity of a woman. Surrogacy involves the
use of a woman’s body for producing a baby which is handed over to the
commissioning parents. During the term of pregnancy, the surrogate mother has to
abide by the conditions laid down in the contract and has no right to take any decision
affecting her body. Moreover the surrogate mother also considers pregnancy as a
means of earning money and tries to avoid developing a special bond with the child in her
womb. Thus the natural mother-child bond is either absent or suppressed and the entire
process is viewed as a commercial transaction. The critics argue that the woman’s body is
reduced to being an incubator or breeder machines and thus it degrades the dignity of
woman.19

4. Surrogacy has been equated with prostitution

18
Kaumudhi Challa,”Contentious Issues in Surrogacy : Legal and Ethical Perspectives in India”’ Vol.1, 2012
Christ University Law Journal (117 to 126) at 121.
19
Kaumudhi Challa,”Contentious Issues in Surrogacy : Legal and Ethical Perspectives in India”’ Vol.1, 2012
Christ University Law Journal (117 to 126) at 121.

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Many authors have criticized that surrogacy is like prostitution, as it involves selling of the
reproductive capacity of a woman and the use of her body in return for payment of money.
Further it is argued that similar to a prostitute who has no choice and control before a
customer who has solicited her favor and paid money; the surrogate mother also has no
choice and has to abide by all the terms and conditions put forward by the commissioning
parents. In both cases one’s physical services is being offered, in both cases material
compensation is offered for the physical services provided.20

5. Exploitation of poor women

Women with limited economic means in India have readily accepted this method of
earning quick money and fulfilling the needs of the family. Thus, the presence of world class
medical care facilities and availability of cheap surrogate mothers have placed India at the
forefront as the outsourcing destination for surrogacy. As a result, childless couple from
across the world are flowing to India to have their children through surrogacy at a
much lower cost. This practice of outsourcing has been subject of great criticism
raising issues like ‘slavery of women’, ‘neocolonialism’ ‘exploitation of poor women etc. 21

V. ANALYSIS

As India is becoming a booming industry for surrogacy, it has brought in various attendant
complexities and inscrutable impact on the society due to the lack of comprehensive piece
of legislation. There is a need to adopt a specific legislation for the regulation of surrogacy
and protection of surrogate mothers in India. There is a need to protect the interest of the
baby child born out of surrogacy from exploitation. Due to lack of proper legislation, both
surrogate mothers and intended parents are somehow exploited and the profit is earned by
middlemen and commercial agencies. There is no transparency in the whole system, and the
20
V. Pillai,”Surrogate Mother and its Challenges to the Indian Legal System”, Vol.1 No.2, 2011 The Legal Analyst
(89 to 93) at 92.
21
Yashomati Ghosh, “Surrogacy and Law: An Affirmative Approach to Deal with the Ethical and Legal
Dilemma”, Vol. II.Issue 1, 2011 Journal of Law Teachers of India (83 to 92) at 87

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chance of getting involved in legal problems is there due to unpredictable regulations
governing surrogacy in India. In India, there is no provision of psychological screening or
legal counseling, which is mandatory in USA. Like any other technology, surrogacy too has
its positive and negative effects. If it is used wisely it would rather bring happiness to
millions of childless couples. But if it is used in a careless way and as a means of commerce,
it would have an adverse impact on the society and would result in the degradation of
human relationships and values. If this practice keeps growing the way it is, it would rather
change from medical necessity of infertile couples to the convenience of rich and wealthy
couples, who do not want to face the pain and stress of a natural birth.
The Surrogacy (Regulation) Bill, 2019 was passed in Lok Sabha on 5th August 2019 to ban
commercial surrogacy and protect the interest of surrogate mother. There are many
concerns raised by restricting to altruistic surrogacy alone. Finding an appropriate surrogate
in the defined age limit may be very difficult without giving any incentives to surrogate. As
mostly the conditions requiring surrogacy are related to female infertility she may be forced
to divorce for being unable to conceive or stigmatized further leading to unhappy marriage.
This also makes intending parents vulnerable to the hostile environment of society towards
infertile couple as they will now need to share their intimate details with close relatives. 22
This may be considered as an infringement into their right to privacy. Adoption may be the
only option for most couples who are unable to find a consenting close relative to be a
surrogate or travelling to other countries for reproductive tourism where commercial
surrogacy is legal. The bill also doesn’t have provision for single parents, same sex parents,
non-resident Indians and overseas Indians.
The Surrogacy (Regulation) Bill was referred to Rajya Sabha select committee who reviewed
the proposed legislation made certain recommendations on 5th February 2020 23 like Any
willing woman should be allowed to act as a surrogate mother, not only ‘close relatives’,
however reinforced only altruistic surrogacy to be permitted, origin (PIO). 5 years waiting
period before seeking surrogacy should be omitted in proven medical conditions such as
absence of uterus by birth, non-functional uterus, removal of uterus because of cancer,
fibroids, or patients with chronic medical condition where normal pregnancy is ruled out
and it is medically proven beyond any doubt that surrogacy is the only option. There is also
no requirement of obtaining certificate of proven infertility in these cases etc.
Considering all the pros and cons surrogacy brings a ray of light into the life of individual and
couples who are seeking their biological child or do not intend to go for adoption. Framing
of appropriate and fair laws which are implemented world over and having consensus
statement of international societies on this vital issue are need of the hour. If judiciously

22
Neha Gupta, Surrogacy: Current Scenario in India, Pan Asian J Obs Gyn,
https://pajog.com/images/pajog/issue-image/All_issue/5ec4030271b3a20200519Article_PDF_FileSurrogacy
%20Current%20Scenario%20in%20India.pdf
23
Surrogate mother need not be close relative, says RS
panel report. The Week; 2020;(February 06). https://
www.theweek.in/news/health/2020/02/06/Surrogatemother-need-not-be-close-relative-says-RS-
panelreport.html/

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used with correct intent this technique can surely prove to be a rewarding experience for
all.

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