A legal Perspective of Ban on the Commercial Surrogacy in Surrogacy bill 2016

This article was written by Shubham Mishra, a student of VIT School of Law, Chennai.


 Surrogacy can be defined as when a married couple is not able to have child due to infertility of either or both of the parents, then another women is artificially inseminated by the sperm of the father or any other sperm donor and that women has to carry child in her womb after that born child will be delivered to the contracted party.In these cases, surrogate mother is called as biological mother.[1]

India is advanced developing medical market at international level, where new technologies are being implemented in order to make medical system more advanced and comfortable from the future perspective, wherein the concept of surrogacy has become profitable business in medical field and India is called the capital hub of surrogacy because this business is expanding its approach in every corner of the country.This matter consists of societal perspective because poor women have to bear pain of keeping child in her womb until she delivers the baby just for the sake of some amount of money therefore their constitutional right is in peril because in many cases women have died as there was no proper care was taken at medical centers.

The union cabinet has proposed the Surrogacy bill, 2016 in order to avoid above mentioned complicated societal problems and this bill will ban all commercial surrogacy which are taking place in the country and only legally wedded couple who have waited 5 years for the baby, only they can opt for the surrogacy and surrogate mother will be their close relatives and the mentioned latest provisions will eradicate all the problems which are arising at recent times. In 2002 the commercial surrogacy was allowed and it was boon for those parents who were not able to have child due to medical complications but rich people were using this practice as fashion because they don’t want labor pain and this industry became 400mn$ industry in past years so this matters belongs much consideration by law as well as society.

TYPES OF SURROGACY– There are 2 types of surrogacy, Commercial Surrogacy and  Altruistic Surrogacy.Commercial Surrogacy has been defined as surrogate mother is financially supported by couples who are going to take the baby and Altruistic Surrogacy occurs when a surrogate mother doesn’t receive any form of remuneration for being a surrogate except for realistic expenses relating to having a child or being surrogate and these expenses includes medical,insurance, travel and if women has taken off from her work.[2]


If we have glance of surrogacy from monetary standpoint, renting a womb or buying a baby raises many ethical and moral questions because there are many grounds for imposing ban on commercial surrogacy, because it has been called as modern day slavery and mockery of motherhood, where women become slave of rich people for satisfying their needs with money for certain period of time, exploitation of poor women,needy women and researchers have found cross-border commercial surrogacy to be exploitative.Foreigners find Indian medical system as cheaper and more technological  and they come here for the surrogate mother of their child  and later on when any problem occurs between couple in future they leave the baby or if twins are born from surrogate mother then they don’t accept those kids and it becomes burdensome for the women as well as government because it enhances the number of orphans which is a major problem therefore all these matters are of great significance and concern.[3]

The main area of deep concern is contract of surrogacy because most of the times women are not educated and  aware about the terms and conditions of the contract they are signing and sometimes they are forced to become contractual party and ramifications of that contract imposes dangerous impact.Dearth of proper medical healthcare and non availability of resources have resulted in death of many poor women and her family had to face difficult situation.One straightforward reason can be a filthy rich people who even after having child they go for surrogacy because they don’t prefer labor pain to their wives in desire of attaining one more child.



There are plenty of reasons for banning commercial surrogacy because India has emerged as surrogacy hub for the couples from the different countries and surrogate mothers are easily available in India and as compared to other countries, the expenditure of surrogacy is cheaper than any other nation.But this is unethical practice and it imposes danger for mother as well as baby for the sake of some amount of money because mother has to carry the baby until she delivers it to the contracted party and it creates many physical problems therefore this is an intelligent and wise idea proposed by the Indian Government for allowing Altruistic Surrogacy instead of Commercial one, where a women is paid only for medical expenses,insurance, travel charges etc.


Foreign nationals and Non resident Indians(NRI) can’t opt for surrogate mother in India because this industry is flourishing at global level and it has become $1bn industry because foreigners find India as easy way for surrogate child.It can be one of the sole reasons for banning surrogacy because plethora of perplexities have arisen in case of foreigners as they leave the surrogate mother in between if they are not willing to accept the child. And after birth and it becomes problem for mother because she has to carry baby and after going back to their country if any problem arises between couples, they don’t even hesitate to abandon the child in loneliness and it results in horrible consequences.[4]


The main and sole reason behind renting a womb of another women in order to have a baby can be intellectual decision of the government  for those category of wedded couples who are infertile and can not give birth to the baby due to medical problems.Couples will have to wait for the period of 5 years before they opt for surrogacy and this bill will help at immense level for such category of couple and it will satisfy their extreme need of having a baby.


Homosexuals can’t opt for surrogacy because their relationship is not legally recognized and is illegal under section 377 of Indian Penal Code, apart from this their relationship is considered as against the code of values and ethics therefore they have been avoided this opportunity because there are plenty of rights left which have not been given to them so first government should focus on their relationship matter and section 377 should be strictly considered.


The couple should be legally wedded for continuous 5 years and they shouldn’t have any other baby then only they can opt for surrogacy.According to the latest proposed bill, women has to be between 23-50 years of age and men should be 26-55 years of age.


The surrogate mother should be close relative of wedded couples and it should be with the consent.She will not be paid money for being biological mother rather her medical expenses,insurance,travel charges and if she is off from her job, she must be paid for all these expenses.


This issue was taking much concern because many rich couples were opting for surrogacy even though they already have one or two child and they didn’t want their wives to go for the pregnancy again and they were going for surrogacy because instead of adopting a baby, they wanted to have their own child and it was easy and more comfortable way to get it done so if the couple has children in past ,they are forbidden to go for surrogacy.[5]


Surrogate mother has to be close relative of couple and the she should have given birth to the child already once and she should be in healthy position before going for surrogacy and any women can go for surrogacy only once because further birth might deteriorate the condition of women and this matter was of paramount consideration.So the provisions involved in the bill are beautifully drafted keeping an issue in their for the benefit of the women because as being socialist country, social justice need to be given every citizen of this country.


The government has proposed that it will establish a National Surrogacy Board at the central level,chaired by the health minister, and State Surrogacy Boards and appropriate authorities in the states and union territories.They will overlook all the cases of Surrogacy and regulate hospitals and clinics that offer this in India.

The peculiar word which has been inserted in this Bill is that, single parents can’t opt for Surrogacy and this is lacunae because sometimes either of the spouses has died and in order to shun their loneliness, if they want child through surrogacy, is not possible for them because the reason which was given that a child can stay happy always when family is complete because both spouses will be more careful than single parent and all necessary stuffs will considered carefully by them therefore single parents were included in the exclusion list of surrogacy.

But there is a fantastic solution of this problem, Adoption. In India thousands of orphanages center are prevalent and these innocent kids are waiting for someone who should take them home and treat them like their own kids.This step by parents will solve many problems in the country and it will be inspiring step towards establishment of humanity in Indian society and we can become a lesson for other countries to follow up this best Idea where no orphan will left in the country.One more suggestion need to be added that if parents can opt for Adoption rather than Surrogacy, it will be the best decision of their life and no more orphanage centers will be available in the country and the inception of this idea need to incepted by the educated youth which will be conclusive in the solution of many societal stigmas which are still existing. 


The proposed Surrogacy Bill by the union cabinet has come up with the plenty of new ideas and after looking the Surrogacy laws of the different countries,this draft was carefully prepared under which Commercial Surrogacy is banned and Altruistic Surrogacy is allowed.The excluded categories are Foreigners, Single parents,Homosexuals,Gay couples,Married couples with kids ,Live-in relationship, this entire mentioned category have been excluded form opting for surrogacy in order to stop the business of surrogacy which is called as Modern day slavery where women are sometimes go through physical and mental torture by their house members and most of the times women are unaware of the contract term surrogacy and they are forced to be a part of this so all these significant matters because of which India is called as the Capital hub for of surrogate mothers.The above mentioned categories of people have been excluded in order to protect the poor women who become prey of rich couple for some amount of rupees and then they have to encounter many problems in the upcoming future in their life.This Bill has to go in the Parliament where discussion will take place in both the houses of parliament and all pros and cons of the bil will come into limelight but if this bill is properly implemented,it will solve many unsolved  problems which were not given importance.Along with this bill, stress should be given on adoption laws or if possible couples should choose for adoption instead of Surrogacy which will be helpful in eradicating one societal stigma and India can become idol for different developed countries where no orphan is left because Indian citizens have become paradigm of encouragement therefore this issue should also be considered carefully.

[1] The Indian Express,” August 25, 2016, accessed August 27, 2016, http://indianexpress.com/article/lifestyle/health/draft-surrogacy-bill-2016-what-is-surrogacy-all-you-need-to-know-2994140/

[2] Amber Leventry,” August 24, 2015, accessed August 27, 2016, http://thenextfamily.com/2015/08/surrogacy-laws-around-the-world/.

[3] Why Ban Commercial Surrogacy?,” Opinion, January 19, 2016, accessed August 27, 2016, http://www.thehindubusinessline.com/opinion/why-ban-commercial-surrogacy/article8124254.ece.

[4] 9 Things You Should Know about the Proposed Surrogacy Bill in India,” News, August 24, 2016, accessed August 27, 2016, http://www.huffingtonpost.in/2016/08/24/9-things-you-should-know-about-the-proposed-surrogacy-bill-in-in/.

[5] Rama Lakshmi, “India’s Thriving Rent-a-Womb Industry May Be Shut down,” Washington Post (Washington Post), August 24, 2016, https://www.washingtonpost.com/world/rent-a-womb-industry-in-india-may-be-shut-down/2016/08/24/39684d60-79e3-42c9-893d-9ff5998ce179_story.html.

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