Surrogacy has been a raging topic in the last few years but due to Covid-19 he has been sidelined. Research done by the World Health Organization (WHO) estimated that in 2010, 48.5 million couples worldwide were unable to have a child of their own.[1] They suffered from infertility, which, the WHO says, is a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.[2]
Meaning:
In general, surrogate mother is a woman who agrees, usually by contract and for a fee, to bear a child for a couple who are childless because the wife is infertile1 or physically incapable of carrying a developing fetus.[3]
Types of surrogacies:
- Traditional Surrogacy:
It is a type of surrogacy in which the eggs of the surrogate mother are used in the conception of the child. The surrogate mother is genetically related to the child and is thus more accurately considered the child’s biological mother. In this process the surrogate mother conceives the baby by means of “artificial insemination” [4](usually with the sperm of the husband).
- Gestational Surrogacy
In gestational surrogacy, the intended parents create an embryo using their own egg and sperm or using donated egg or sperm.[5]
Status of surrogacy laws in India:
There are no particular laws governing surrogacy. Which in return has resulted in the exploitation of the surrogate mothers and the children born out of it. It has also resulted into abandonment of children born out of surrogacy, and the import of human embryos and gametes.[6]
In 228th report of Law Commission of India it was recommended that a suitable legislation should be made for surrogacy to be regulated properly. The commission also recommended that only altruistic surrogacy[7] should be allowed and not commercial surrogacy[8].
Surrogacy Bill,2016 was rejected by Rajya Sabha and asked a Parliamentary Standing Committee to examine its provisions. This exercise culminated in the 102nd Report in 2017, which suggested progressive changes to the 2016 Bill.[9]
Despite this, the 2019 Bill ignored the recommendations of the Parliamentary Committee and was an exact replica of the 2016 Bill. It banned commercial surrogacy and permitted only altruistic surrogacy thus preventing the surrogate from availing monetary compensation for her services. Once again, the Bill was not passed by the Rajya Sabha, and a Select Committee was formed to recommend changes to the legislation.
This Committee recommended deleting the clause which defined ‘infertility’ and required a five-year waiting period before issuance of an infertility certificate, thereby making access to surrogacy easier. It also recommended deleting the clause which only allowed for close relatives to act as surrogates saying that it “ignores the ground reality of most Indian families where women have little decision-making authority” and that this will create a situation where women will be coerced by their families into providing reproductive labour.[10]
Although the committee did correct the flaws in the 2019 bill what cannot be ignored is the discriminatory nature of bill. The bill has maintained to keep a need-based approach than a right-based approach.
Article 21 which provides for right to liberty is one of the pillars of the constitution that could protect the right to make reproductive choices. The bill by only allowing altruistic form of surrogacy is expecting a woman to go through so much pain only for compassion which would reduce the number of women being open to be a surrogate.
The proposed Bill also continues to deny this opportunity to LGBTQ+ persons, live-in couples, and single parents. Even those included within its ambit are required to have a ‘certificate of essentiality’ stating that it is biologically impossible for the person(s) to have a child in any other way. It does not consider other medical conditions which even though do not render women infertile, make the pregnancy riskier and more difficult.[11]
It also tends to ignore the fact that women would not want to go through pregnancy due to their personal wishes or career related commitments and inability would not only be due to infertility. the Union Cabinet on 26th February 2020 approved the new Surrogacy (Regulation) Bill 2020, allowing any ‘willing’ woman to be a surrogate. The Bill took a backseat due to the COVID-19 pandemic but is expected to be introduced as the 2021 Bill in the Lower House of the Indian Parliament in its upcoming session. [12]
Conclusion:
Although the new Surrogacy (Regulation) Bill 2020 has significantly improved than the 2019 still it lacks many things. The need-based approach has to be removed and a right based approach should be adopted. The courts cannot morally police the women and tell them that bearing one’s own child cannot be compared to surrogacy. Its high time that laws that allow women to have their own liberty to decide about their reproductive rights.
[1] Bhupender Yadav, the new surrogacy bill protects the interests of all, Hindustan Times (FEB 06, 2020 06:21 PM IST) https://www.hindustantimes.com/analysis/the-new-surrogacy-bill-protects-the-interests-of-all/story-F4DJy6L5QsfYk57npKVB3H.html
[2] Ibid
[3] Dr. Justice Ar. Lakshmanan, “Surrogacy, Lawyers Update”, Vol. 17, Part 1, January 2011, 8.
[4] Babu Sarkar, Commercial Surrogacy: Is It Morally and Ethically Acceptable in India?, Manupatra (2011),
[5] Surrogate.com, / https://surrogate.com/about-surrogacy/types-of-surrogacy/types-of-surrogacy
[6] Supra 1
[7] Surrogacy where the surrogate mother will not be paid any compensation except medical expenses and insurance.
[8] the term generally refers to any surrogacy arrangement in which the surrogate mother is compensated for her services beyond reimbursement of medical expenses.
[9] Eshan Sonak and Sanvi Bhatia, India’s new Surrogacy Regulation Bill falls short of protecting bodily autonomy and guaranteeing reproductive liberty, LSE Blogs (April 21st, 2021), https://blogs.lse.ac.uk/humanrights/2021/04/21/indias-new-surrogacy-regulation-bill-falls-short-of-protecting-bodily-autonomy-and-guaranteeing-reproductive-liberty/
[10] Ibid
[11] Supra note 9
[12] Supra note 9
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