This article was written by Prachi Kotia, a student of School Of Law, Indore.
The present study seeks to address the issue in regard to surrogacy laws in India. Surrogacy is an arrangement by which a woman , called as surrogate, carries and delivers the offspring of commissioning parents. In India, it has been recognised under ART treatment but there has been no law regulating the cases related to surrogacy. The bill, banning commercial surrogacy, has been passed by Union Ministry in August 2016 and has laid down certain guidelines relating to surrogacy process in India.
The research paper would discuss the Historical Development of Surrogacy in India, Present features of the bill and also discusses the inconsistencies in the present bill. Further the paper analyzes its various dimensions in order to ascertain the basis which makes it imperative for the legislature to pass a law with necessary changes to explicitly address the issue.
The purpose of the study is to endorse the need for legalization of surrogacy from the perspective of
positive fundamental right of procreation guaranteed under Article 21 of the Indian Constitution
and the compelling state interest in maintaining the ‘rule of law’ and further give suggestions and solutions to make the surrogacy law more effective.
Keywords: Surrogacy, ART Treatment, legalisation, Indian Constitution.
The pivotal role of being a mother is the divine mission in the society assigned to women alone. Mothers have often shaped our world from the cradle by rocking, nurturing and instructing children who grow up to make life-changing and history making accomplishments. According to the Indian belief and ideals of marriage, women should live up to the ideal of a faithful wife and a loving mother.
Nature has bestowed the beautiful capacity to procreate a life within women and every woman cherishes the experience of motherhood. Unfortunately, some women due to certain physiological conditions can not give birth to their own off-spring. The desire for motherhood leads them to search for alternative solutions, and surrogacy presents itself as the most viable alternative. The system of surrogacy has given hope to many infertile couples,who long to have a child of their own. Taking advantage of the advanced medical facilities, they seek alternative solutions like Artificial Reproductive Technology (ART), In Vitro Fertilization (IVF) and, Intra-Uterine Injections (IUI), in the hope of having a child of their own.
Surrogacy is a technique in which a surrogate mother, carrier of the baby, carries and deliver the baby to the infertile couple. It is like a boon to the childless couples who are infertile. Basically surrogacy is of two types, firstly in which the surrogate mother is not genetically related to the child which is called as Gestational Surrogacy. Secondly, in which the surrogate mother is genetically related to the child and is known as Traditional Surrogacy.
RIGHT TO REPRODUCTION- A CONSTITUTIONAL RIGHT
- Article 16(1) of the Universal Declaration of Human Rights 1948 says, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and start a family”.
- The Judiciary in India has recognized the reproductive right of humans as a basic right. Vide B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as an aspect of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which characterised the right to reproduce as “one of the basic civil rights of man”.
Now, if reproductive right gets constitutional umbrella, surrogacy which allows an infertile couple to exercise that right also gets the same constitutional protection.
SURROGACY LAWS IN FORIEGN COUNTRIES
Surrogacy has become a procedure practise worldwide, and for the smooth functioning of the surrogacy practise there has to be certain rules and regulations and the parents coming for surrogacy in a particular country are required to stick to laws designed by the host country. The surrogacy laws varies country to country. Some countries do not allow surrogacy at all whereas some countries have liberal laws. There are many countries which sanctions surrogacy but there are certain rules and procedure which has to be followed. Countries such as India, UK, Ireland, Denmark, Belgium, Ukraine etc. allow surrogacy but there are certain guidelines which has to be followed, whereas countries like France, Germany, Italy, Spain, Portugal etc. prohibits all form of surrogacy.
HISTORICAL DEVELOPMENT OF SURROGACY
The concept of surrogacy goes back to many thousands of year, the very first known case of surrogacy was mentioned in the Bible and over the time surrogacy has evolved and with the help of technology has reached new high. In the year 1986, a great success was achieved when a surrogate mother gave birth to Melissa stern through gestational surrogacy. Baby Manji is a child born to an Indian surrogate. Her commissioning parents were a couple from Japan, who filled for divorce shortly before the child was born. At last baby’s custody was handed over to her grandmother. As a result of this case the debate within India about surrogacy has intensified. In the controversy that followed, several infirmities in the arrangement came to light including the absence of a legal contract between the parties, a fact that many saw as a worrying reminder of the potential for exploitation of native surrogates.
India became a popular destination of fertility tourism. Infertile couples from all over the world travelled to India where commercial surrogacy was legal. This arrangement may seem to be beneficial for all concerned parties. An added attraction was the low cost of the whole procedure in India which used to be much less compared to other countries. In 2010 the Assisted Reproductive Technologies (Regulation) Bill was issued by the Ministry of Health & Family Welfare of the Government of India. The 228th report of the Law Commission of India also recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to needy Indian citizens by enacting a suitable legislation.
The Surrogacy (Regulation) Bill, 2016 proposes to regulate surrogacy in India by permitting it as an option for couples who cannot naturally have children, have a lack of other assisted reproductive technology options, are keen to have a biological child, and can find a surrogate mother among their relatives. If the surrogate mother is being paid for the surrogacy it amounts to Commercial surrogacy and if besides medical expenses if the surrogate mother is not paid any amount it results in Altruistic Surrogacy.
Features of present surrogacy laws in India
The proposed draft Surrogacy Bill 2016, which was passed by Union Cabinet, is expected to be introduced into the Parliament. If passed, the new legislation will apply to all of India except Jammu and Kashmir.
1. Commercial surrogacy is banned;
The health ministry has proposed to amend the surrogacy laws in India because of increase in commercial surrogacy in India. India has emerged as a surrogacy hub for couples from different countries which has spiralled into unethical practices, putting both surrogate mothers and their babies at risk. The bill completely prohibits commercial surrogacy including sale and purchase of human embryo and gametes in order to prevent potential exploitation of the surrogate mothers. As the surrogate mothers are poor, illiterarte , unaware of the legal and medical harm going to be caused after surrogacy, these women often get ready to be as a surrogate mother just for money, and to stop this exploitation commercial surrogacy is banned in India.
The bill further states that only an insurance coverage of reasonable and adequate amount shall be ensured in favour of the surrogate mother. No monetary compensation is to be paid to the surrogate mother by the intending parent.
2. It legalises surrogacy for infertile Indian couples;
The proposed law allows Indian citizens only to be intending parent, thus the bill effectively bans foreigners to seek an Indian surrogate mother. This includes non-resident Indians (NRIs).
The bill also laid down that, Indian couples who are legally married with ‘proven infertility’ to try the surrogacy route. This will, by omission, keep out any homosexual couples, live-in partners, single men and women who might want a surrogate child as Article 7 of the Convention on the Rights of the child guarantees child’s right to know his or her origin and identity which would be affected if they are allowed to surrogate.
3. The duration of marriage of intended couple must be as prescribed;
The marriage of the couple must have been existed for at least 5 years before approaching a surrogate mother, according to the proposed legislation. Further, the woman has to be between 23-50 years of age and the man should be 26-55 years old.
Further, those who had already surviving biological or adopted child will not be eligible for a surrogate child except in the case if the child is physically and mentally challenged with no permanent cure.
4. A close relative must be approached for surrogacy;
The surrogate mother should be a close relative of the intending couple and should be between the age of 25-35 years of age. She can act as a surrogate mother only once. The bill says surrogate mothers should be married and should have earlier given birth to a healthy child before. It is intended to make surrogacy an altruistic practice where eligible women offer to be surrogates for family members in need.
5. Rights of surrogate child;
The bill states that the child born through surrogacy will have the same rights as are available for biological child. The bill does not allow abandonment of the child born through surrogacy by intending couple under any condition. Further an order concerning the parentage and custody of the child to be born through surrogacy, is to be passed by a court of the Magistrate of the first class.
6. Surrogacy regulatory bodies;
The government has proposed that National Surrogacy Board at the central level chaired by Health misnister, and State Surrogacy Boards and appropriate authorities in the states and union territories must be established. The above mentioned authorities will be empowered to deal the cases of surrogacy and regulate hospitals and clinics that offer surrogacy procedure in India.
7. Penalties and Punishment;
The bill lays down that if any person, organisation, surrogacy clinic, laboratory or clinical establishment of any kind shall undertake commercial surrogacy, abandon the child, exploit the surrogate mother, sell human embryo or import embryo for the purpose of surrogacy, then the act shall be punishable with imprisonment for a term which shall not be less than ten years and with fine which may extend to 10 lakh rupees.
Inconsistencies with the present laws
- The restriction, especially based on marital status like single parent can not go through surrogacy violates the right to family under Article 21 of Indian Constitution, as when the law allows adoption by a single parent, why not allow surrogacy too.
- Bill says only needy “Infertile” Couples are legally competent to try surrogacy but no clear provision is given for the women for whom child bearing can be life threatening or for some reason the earlier children have died.
- No appropriate alternative is provided for the couples who cannot find a volunteer surrogate within its family. This provision deprives an individual from the Right to family and Right to have biological successor if one fails to find a relative as surrogate mother. Without any monetary compensation, no one would bear such pain for just altruistic reason. And if in any case the surrogate mother dies the personal relations within the family get ruined.
- Banning commercial surrogacy and regulating altruistic surrogacy in India is a lost opportunity and an exercise in moral crusading. It turns to the fact that demand for surrogacy still exists in India and the bill will drive the entire surrogacy industry underground. For eg. the rich family may carry the surrogate mother with the intending couple to foreign countries where surrogacy is legal in order to get a surrogate child. As surrogacy treatment is very expensive, only needy Indians opt for the same and just because some people has made it fashion banning commercial surrogacy would deprive other needy people from availing this service.
- The provision to try surrogacy after the period of five years of marriage will make the surrogacy as last step, after trying all the available expensive ART methods which would make the surrogacy procedure to be happened least possible if the intended woman attends menopause and further the medical science doesn’t take such a long period of 5 years to declare the couple infertile.
As the bill has so many lacunae due to which the law would not be able to serve the purpose it is meant to be. Here are some suggesstions for the changes in the provisions of the bill, which is the need of an hour to control the exploitation of the surrogate mother and child as well as to use the surrogacy technique of medical science to do the maximum good of the society as ‘law’ is an instrument for securing the “greatest good of the greatest number” 
Commercial Surrogacy should not be banned but must be regulated;
- A detailed precise law permitting commercial surrogacy with appropriate regulations should be drafted immediately, so that the government’s stand can be clearly seen and also the exploitation can be stopped. If the surrogacy procedure has been treated as a contract under Indian Contract Act 1872, both the parties to contract will be legally bound to fulifil the terms and conditions of the contract which would be the better option to regulate surrogacy laws.
- Those countries which have banned any type of surrogacy like France, Germany etc has developed economy comaprative to the economy of India which is developing. It, therefore is imperative to allow the women to be a surrogate mother and to earn for the upliftment of her family, otherwise it would violate the right to trade guaranteed by under Article 19(1)g of the Indian Constitution.
The rights and interest of child;
The rights of the surrogate child who is born through surrogacy should be protected by law. Rights of child in the case of unsoundness of mind or permanent incurable dissability, should be clearly mentioned under the law. A specialized Court like “surrogacy Court” should be established for expeditious disposal of matters related to surrogacy.
Rights of Surrogate mother;
To protect the surrogate mother from being exploited there must several provisions be enacted like;
- Provision regarding the consent of the surroage mother in case of abortion must be clearly mentioned in the law.
- Provision regarding the granting of maternity relief as guaranteed by Indian Constitution to the surrogate mother under the public and private sector must be clearly mentioned in the law.
- Provision regarding the free consent of the woman for being surrogate mother as if the act makes it necessary to find a close relative as surrogate mother then there may be undue influence on her from the family members, therefore protection must be guaranteed to her.
 AIR 2000 A.P. 156
 316 US 535
 Baby Manji Yamada v. Union of India & Anr. (2008) INSC 1656
Surrogate motherhood- ethical or commercial, available at http://www.womenleadership.in/Csr/SurrogacyReport.pdf , lastly retrive don 11th Novemebr 2016
 SURROGACY available at https://en.m.wikipedia.org
Draft bill on surrogacy gets Union Cabinet’s clearance, available at http://www.huffingtonpost.in/2016/08/24/draft-bill-on-surrogacy-gets-union-cabinets-clearance/ , lastly retrived on 15th November 2016
Big changes in India’s surrogacy rules: your 10 points guide, by Sunil Prabhu, available at http://www.ndtv.com/india-news/cabinet-clears-surrogacy-bill-bans-foreigners-from-renting-wombs-1449590 , lastly retrived on 11th November 2016
Convention on the rights of child, available at http://www.ohchr.org/en/professionalinterest/pages/crc.aspx , lastly retrived on 16th November 2016
India plans surrogacy ban for foreigners, unmarried couples, by Nirmala George, available at http://www.ctvnews.ca/world/india-plans-surrogacy-ban-for-foreigners-unmarried-couples-1.3041710 , lastly retrived on 11th November 2016
The Surrogacy (Regulation) Bill 2016, available at http://www.dhr.gov.in/sites/default/files/surrogacyregbill_0.pdf , lastly retrived on 11th November 2016
 Looked upon by Jeremy Bentham
Surrogacy contracts and The Indian Contracts Act by Abhiraj Thakur available at http://blog.ipleaders.in/surrogacy-contracts-indian-contracts-act/, lastly retrived on 16th November 2016