On 19 December 2018, the lower house of the Parliament passed the Surrogacy
(Regulation) Bill, 2016. Although the bill was cleared in the cabinet as early
as 2016, it was referred to the Parliamentary Standing Committee (Health &
Family Welfare) before its passage. The bill seeks to protect women from
Surrogacy is an arrangement, often supported by a legal agreement, whereby a
woman agrees to become pregnant, carry the pregnancy to due term, and give birth
to a child or children, all of this for another person or persons, who are or
will ultimately become the parent of the newborn child or children. Surrogacy is
needed when the woman has uterine issues, pre-existing health condition,
hysterectomy as a result of cancer, some previous pregnancy complications which
can put both the baby and mother to a risk, or some other restrictions other
than medical like in case of LGBTQ couples.
There are more than 50 million infertile couples in the world, and India and
Thailand have become the biggest hubs for commercial surrogacy over the decade
due to various favourable factors such as cheap costs, large number of
well-equipped private clinics as well as well qualified doctors. Lack of
regulation creates many social, ethical and commercial problems as illustrated
in the points below:
- In 2008, a Japanese couple had appointed a surrogate in a small town in
Gujarat. After nine months, at the time of baby’s birth, the couple was no
longer together leaving the child both parentless and stateless as surrogacy
is still prohibited in Japan.
- In 2012, an Australian couple had twins via a surrogate, but acted
according to their whim and deserted one in India and took the other one
- A young mother of two had decided to sacrifice her own body by becoming
a surrogate in order to earn some money for her kids, but in spite of
delivering a healthy baby, she could not earn much as the middleman took
away 50% of her earnings.
- In recent years, women in the show business like Bollywood and the
fashion industry have starting opting for surrogacy in order to avoid labour
pain and ‘stay in shape’.
- India has a socially conservative culture where women who use their
bodies for earning money have to face high level of social stigma and
These points bring into light the total disregard of the rights of the surrogate
and the child and how there needs to be a law in place to protect them from
exploitation and ill treatment.
The bill aims to put a complete ban on commercial surrogacy. The term generally
refers to any surrogacy arrangement in which the surrogate mother is compensated
for her services beyond reimbursement of medical expenses. Clause 35 of the Bill
classifies surrogacy as an offence.
Offences include commercial surrogacy, providing services in relation to that,
running surrogacy agencies without legal registration, advertisement of
commercial surrogacy services, exploitation of surrogate mothers, selling of
human embryos et al. The bill prescribes punishment of imprisonment for a
minimum term of ten years and with fine which may extend up to ten years for
committing these offences.
The bill only allows altruistic surrogacy. The term refers to an arrangement in
which a woman volunteers to carry a pregnancy for intended parents without
receiving any monetary compensation in return.
Only a woman who is genetically related to the intending couple can act as a
surrogate for them.
Only a woman in the age group of 25-35 can opt to be a surrogate mother and a
woman can provide surrogacy services only once in her lifetime.
The bill imposes that only a ‘legally married Indian couple’ can avail surrogacy
services who have been married for a period greater than 5 years. ‘Couple’ only
includes a legally married man (above the age of 21) and a woman (above the age
of 18) and not foreigners, live-in partners and same-sex couples. The couple has
to present a ‘certificate of infertility’ in order too avail these services. The
couple must be between the age of 23-50 years and 26-55 years for female and
The intending couple should not have had any surviving child biologically or
through adoption or through surrogacy earlier. However, if the surviving child
is medically certified to be mentally or physically challenged, or as having
life threatening diseases, the couple can avail surrogacy services.
The child born to the surrogate will be considered to be the legal offspring of
the intending parents and the bill prohibits abandoning of the child by the
legal parents. Also’ any form of sex-selected surrogacy is prohibited.
No person or agency can force the surrogate mother to abort the child.
Only clinics which are registered according to the provisions of the bill will
be allowed to provide surrogacy services.
A Surrogacy Board will be set at National level to advice the government on
surrogate policy and to see the functioning and implementation of the law.
Surrogacy involves a business contract of sale between the surrogate mother and
the intending couple which is no less than a business transaction. It puts a
price tag on the natural process of a birth of a child and reduces children to
objects. Many women are pushed into the profession forcefully by their families
to earn some money.
After the controversy followed by the Baby Manjhi case, in which the child was
caught between the legal battle, the Government finally acknowledged the need of
its’ interference in the growing industry of surrogacy services. All
stakeholders were invited for a national level meeting, which CSR was a part of.
But no concrete facts and evidences were available. Centre for Social Research
was the first organisation to provide any research analysis based on grass root
level data by conducting 2 major studies.
The first study was conducted in Anand, Jamnagar and Surat which threw light on
the malpractices of the middlemen and how women are exploited, whereas the
second study was conducted in the metropolitan cities of Delhi and Mumbai which
highlighted the ever-growing embryo industry in the metro cities. According to
CIA, surrogacy is an ever-growing industry of 23 billion dollars. The bill tries
to curb the maleffects of commercial surrogacy and make the services available
to only those who it sees as eligible.