Introduction of Surrogacy:
Surrogacy is a procedure in which a woman agrees to bear a kid for someone else,
such as two homosexual couple, a single individual, or a couple who are unable
to conceive on their own. Following the birth of the child, the birth mother
transfers custody and guardianship of the child to the intended father or mother
(s). Birth mothers, surrogates, and other similar terms are used to describe
women who carry children for other people. When a baby is delivered via a
surrogacy agreement, the parents of the child are referred to as the
commissioning or intended parents (s).
When a woman (the surrogate mother) decides to endure pregnancy and carry a
child for another person or people, the person or persons who will become the
child's parent(s) after birth are referred to as the surrogate parents. It is
an abnormal method of conceiving a kid. As a result, it is a contract in which a
woman agrees to carry a kid for the benefit of another spouse. It is a form of
parenting, in which the commissioning parents sign a legal arrangement with a
woman to give birth to a child for them and surrender all the parental rights to
the intended parents. It is sometimes referred to be known as a Contract of
Couples suffering from infertility or other problems depend on this alternative
method of childbearing to carry their children. The payment of a monetary
remuneration may or may not be involved in surrogacy agreements. Commercial
surrogacy is defined as the practice of receiving payment for the arrangement.
Surrogacy is only allowed in certain countries if there is no exchange of money,
thus couples wanting a commercial surrogacy in a nation where it is prohibited
must go to a country where it is permitted. Commercial surrogacy is arranged via
the participation of third-party agencies and is governed by a legally binding
contract. It is altruistic surrogacy, on the other side, if the surrogate mother
receives no compensation other than reimbursement for her costs.
Surrogacy has been categorized into different kinds:
On the basis of Nature of Surrogacy Agreement
- Altruistic Surrogacy:
The surrogate mother gets no financial
compensation for her pregnancy or for giving up the baby to the intended parents
save for the required medical costs. This typically occurs when the surrogate
mother is a relative of the intending parents.
- Commercial surrogacy:
The surrogate mother gets compensated aside from
the required medical costs. This typically occurs when the surrogate mother is
not related to the intending parents.
On the basis of Nature of Fertilization
- Traditional Surrogacy:
The surrogate mother bears the baby for the
entire term and delivers it for the couple via artificial insemination. The
infant is the biological child of that Surrogate Mother.
- Gestational Surrogacy:
In this, the eggs of the mother are fertilized by
the father's/donor's sperm and then the embryo is put into the uterus of the
surrogate. In this scenario the biological mother will be the one whose eggs are
utilized and the surrogate mother is the birth mother of the baby.
Although surrogacy has long raised ethical issues, the acceleration in these
operations makes the problem much more essential. The economics of surrogate
pregnancy advances quicker than our understanding to its implications with
hundreds of new clinics set to start. A surrogate is a realistic option and
becoming an increasingly popular choice for couples who cannot produce children.
A surrogate mother is a woman who has chosen to get pregnant and deliver a child
particularly for a couple she has a contract with. A surrogate mother maybe the
baby's genetic mother, in which case medical practitioners assist to fertilize
her eggs; or she may be a gestational carrier and have an embryo placed in her
As for homosexual men, they may agree to utilize a traditional surrogacy in
certain countries; one of them may use his sperm to fertilize the surrogate
mother's egg via artificial insemination. Then, the woman carries the baby and
gives birth. Also, a homosexual couple may choose an egg donor, fertilize the
given egg, and then have the embryo placed into a gestational carrier to carry
Origins of surrogacy dating back to antiquity:
Surrogacy is a topic of debate for many people in a variety of areas, including
legal, social, ethical, and many more. It accommodates very diametrically
opposed circumstances since some people support it while many others reject it.
It also accommodates instances where a kid born via this method may be
acceptable but not respected in many organizations today.
A surrogate is a person authorized to act in the place of another, according to
Black Law's Dictionary.
The term Surrogate
comes from the Latin word Surrogatus
means Substitution or Replacement
. Surrogacy is an old practice that
is well-known in nearly all nations and civilizations across the world. Natural
Surrogacy, Gestational Surrogacy, Commercial Surrogacy, and Altruistic Surrogacy
are the four most common kinds of surrogacy in the United States.
Because of the Baby M case
, the year 1986 is regarded as a watershed
moment in the history of surrogacy. In the state of New Jersey, a couple engaged
with a surrogate in order to become parents. Following the birth of a daughter,
the surrogate declined the monetary offer and instead decided to keep the kid
with her and her family. The Court found the surrogacy contract to be in
violation of public policy and declared the use of money in the transaction to
, and degrading to women
surrogacy contract was cancelled. However, in the best interests of the child,
the custody of the child was given to the intended parents, with only privilege visits
privileges granted to
the surrogate mother.
Surrogacy in return for monetary compensation has grown in popularity in tandem
with scientific advancements in the fields of infertility and reproductive
technologies. Commercial surrogacy, as opposed to traditional surrogacy, is a
more contemporary form of conception, and the phrase wombs for hire was
created when it became possible to grow a full-term kid in any womb.
Despite the fact that the Indian society has not always been welcoming of the
concept of surrogacy, the practice has been practiced from ancient times.
In the Mahabharata, Gandhari, the wife of Dhritarashtra, became pregnant, but
the pregnancy lasted almost two years, after which she gave birth to a
semi-solid mass of flesh and bone. In the mass of cells, Bhagwan Vyasa
discovered 101 cells that were normal. These cells were placed in a nutritional
medium and allowed to grow in vitro for the duration of the study. The male
children (Duryodhana and other Kauravas) outnumbered the female children (Duhsheela).
The female children outnumbered the male children (Duryodhana and other Kauravas).
The tale of Drishtadyumna and Draupadi's birth also contains a reference to the
birth of a baby outside of the mother's womb and without the occurrence of
appropriate fertilisation, which is a rare event. Draupada and Dronacharya were
rivals, and Draupada desired a son who would be powerful enough to slay Drona.
He was treated with medicine by a Rishi, who also collected his sperm and
processed it before putting it in a yajnakunda (offering), from which
Dhrishtadyumna and Draupadi were conceived and raised. Lord Krishna's mother, Devki, was pregnant with her seventh child when the embryo was moved to the womb
of Rohini, Vasudeva's first wife, in order to prevent him from being murdered
by Kansa during her seventh pregnancy.
The concept of Maqasid al-Shar'ah, or the Law's purposes, is prevalent in
Islam. These include the protection of religion, the protection of life, the
protection of progeny, the protection of the mind, and the protection of the
body. Hifz al-Dn (Protection of Religion), Hifz al-Nafs (Protection of Life),
Hifz al-Nasl (Protection of Progeny), Hifz al- (Protection of Wealth). This
classification speaks about the fundamental requirements of human beings, which
must be safeguarded, preserved, and promoted.
Because Islam promotes reproduction, it supports the treatment of infertility
and the care of expectant mothers and their children. It also necessitates the
maintenance of genetic lineage. Every infant should be aware of and feel a
connection to both of his parents. A new concept in Islamic jurisprudence,
hiring a womb for
reproduction is not acceptable according to Islamic ethics because surrogacy
requires the use of donor sperm, which is a foreign component in the woman's
womb, and thus results in the mixing of lineages between the mother and the
child. According to Mufti Sheikh Ahmad Kutty, an Islamic scholar, the entrance
of male sperm into the uterus of a woman with whom he is not married is contrary
to Allah's will.
Sarah, Abraham's wife, was told in the Bible that she was unable to have
children because of a genetic defect. She coerced her handmaid, Hagar, into
having a child with Abraham via the act of copulation. Sarah became envious in
this situation, and the surrogate mother refused to reveal the name of the kid
to Sarah. Consequently, both the surrogate mother and the baby were kicked out
of the home and placed in foster care. We learn about Rachel in Genesis 30.
instructed her husband Jacob to have sexual relations with her maid Bilhahin in
order to have children and, thus, start a household. Jacob goes on to have more
children with his harem as well as with both of his wives, Leah and Rachel, in
the following years. The ten other sons are envious of Joseph, the special
son of Rachel; as a result, they plot to sell him as a slave.
As both of the tales above show clearly, God's goal was for a normal and
exclusive sexual connection between a man and a woman. The use of a surrogate
mother resulted in the disintegration of the families and the emergence of
abnormality in general. The common message was that not trusting God and instead
putting matters into one's own hands might result in anarchy on the planet.
Noel Keane, an attorney, was instrumental in facilitating the first ever legal
surrogacy contract in history in 1975. According to the terms of the
arrangement, the surrogate mother did not get any remuneration in this case.
Following this, Keane founded his own infertility center, which was responsible
for a large number of surrogate pregnancies in the United States. Louise Brown
was the first person to be born as a result of in-vitro fertilizations when she
was born in 1978. IVF was also used to create her younger sister,
Natalie Brown, who was born four years later and became the world's forty-first
kid to be conceived in this manner.
When Natalie gave birth without the use of IVF in May 1999, she became the first person born after conception via IVF to do
so. Dr. Subhas Mukhopadhyay of India created the world's second test tube baby,
named Durga, just a few months after the birth of Louise Brown in the United
States. He was, however, barred from working on in-vitro fertilizations any
longer and was moved to another section of the company. In addition, he was
denied permission to go to Tokyo to give a paper. Mukhopadhyay committed himself
on June 19, 1981, as a result of his dissatisfaction and deteriorating health.
According to scientific documents, 'Harsha' was born on August 16, 1986, and
is considered to be India's first human test-tube baby. This accomplishment was
attributed to T.C. Anand Kumar, Director of the Institute for Research in
Reproduction (IRR) of the Indian Council of Medical Research (ICMR). When he
travelled to Kolkata to attend a Science Congress in 1997, he was presented with
all of Mukhopadhyay's research papers, which he took with him. Following a
thorough examination of the papers and conversations with Durga's parents, he
became certain that Mukhopadhyay was the person responsible for the birth of
India's first human test-tube baby.
Mukhopadhyay was recognised as the creator
of the first Indian test tube baby in a paper connected to the topic of
artificial intercourse in the Indian Council of Medical Research (ICMR) thanks
to the efforts of T.E. Anand Kumar.
The first surrogacy agreement, which included remuneration, was signed between a
surrogate and the intended parents in 1980. Elizabeth Kane (a pseudonym) was
compensated $10,000 for carrying the couple's child to term. Despite the fact
that she had completed her family and had put a kid for adoption, Kane was
unprepared for the difficulties she would encounter after the birth of her
child, as well as the emotions that would accompany the whole process.
Afterwards, she expressed remorse for her choice to be a surrogate mother and
wrote about her experiences in a book titled Birth Mother.
Surrogacy from the Indian Point of View:
As a result of long-term relaxation of any legal structure, restrictions, and
regulation, India has emerged as a global hub for surrogacy for worldwide
deliberate parents. This is because India first legalized commercial surrogacy
in 2002 and has grown in popularity as a global hub for surrogacy for worldwide
deliberate parents as a result of the relaxation of any legal structure,
restrictions, and regulation for a long time, which ensures a legally simple
route to parenthood for them.
In addition to these advantages, favorable foreign
currency rates make Indian surrogacy a cost-effective option. Although surrogacy
became legally permissible in India in 2002, it was structured under guidelines
published by the Indian Council of Medical Research (ICMR), which were
rudimentary and devoid of any legislative backing. It was the same as if there
were no rules at all.
The women who agreed to serve as surrogates were exposed to inhumane and
unscrupulous treatment, as well as an unpleasant atmosphere, terrible living
circumstances, and exploitation in the process. When the surrogacy companies in
India got huge invoices from the intended parents, they only reimbursed a
portion of the surrogate mother's costs, which was a small portion of the total
These women were forced back into the industry by poverty and illiteracy, and
they continued to be exploited as baby-making machines by these organizations
for the sake of profit, which resulted in their physical and mental health being
in poor condition. Recently, there have been many irregularities committed in
this company, as well as the continuation of a money-making
scam in the name of a baby.
Baby Manji Yamada v/s Union of India & Anr
. WP (C) NO. 369 OF 2008, in which a
Japanese couple opted for surrogacy through an Indian origin mother, and the
baby was born in Anand, Gujarat, which is known as the cradle of the world,
was brought before the Supreme Court of India to address the absence of
surrogacy legislation in the country. In the month before the baby's birth, the
couple divorced, and the woman abandoned the child, who was biologically linked
to the father.
The surrogate mother refused to take the child into her own arms.
The biological father, Ikufumi Yamada, wanted to bring the kid back to Japan,
but the court denied him custody, and the Japanese government refused to allow
him to do so since the infant did not have either Japanese or Indian
nationality, thus he was unable to do so. A directive from India's highest court
was followed by a humanitarian visa being granted to the baby by the Japanese
government, which was then followed by the Indian government issuing a travel
certificate to the baby's grandmother on her son's behalf, and the child was
allowed to leave the country with her grandmother. As a result of this judgment,
commercial surrogacy became lawful in India, and it was reaffirmed in Jan Balaz
v. Anand Municipality
L.P.A No. 2151 of 2009, which further showed that
commercial surrogacy was allowed in India since there was no legislation banning
According to a study published by the Centre for Social Research (CSR), a
non-governmental organization (NGO) that deals with women's issues, in 2014, 88
percent of surrogate mothers in Delhi and 76 percent in Mumbai stated that they
were not familiar with the terms and conditions of the contract, and that there
were more than 2,000 surrogacy clinics operating in India without any
registration or authorization at the time.
In India, the surrogacy industry has
been criticised by women's rights organizations, which claim that fertility
clinics are baby factories for the wealthy, and that widespread illiteracy
leads to poor and uneducated women signing contracts that they do not fully
understand, thereby exposing them to exploitation.
Exploration of fertility in India:
Surrogacy for commercial purposes became legal in India in 2002. The Kaival
Hospital in Anand, Gujarat, used to have a clinic that acquainted infertile
couples with local women, cared for the women and provided assurance during the
pregnancy, and even provided counselling and support after the birth of a child.
Women who are accustomed to carrying babies for couples from a variety of
countries, including the United States, Taiwan, and the United Kingdom.
This was referred to as the phenomenon of wombs for rent. In recent years, India has
emerged as a major hub for commercial surrogacy for cosmopolitan parents, thanks
to the availability of a large labour force and a high-quality medical facility
at a reasonable cost.
Dr. Patel's centre was praised for being one of a kind because it provided a
variety of services. Instead of having to bring in their own surrogate, the Anand Gujarat clinic only requires the parents to provide their egg and sperm.
The surrogate is chosen from a waiting list of tested and ready surrogates.
acclimation group of surrogate mothers who lived in a home rented by the clinic
under the supervision of a former surrogate mother was formed. At night, they
would be occupied with English or computer classes, and during the day, they
would receive visits from their husbands and children. They both signed a
contract in which the couple agreed to pay for all medical expenses incurred by
the surrogate woman on top of her remuneration. It was also stated that the
surrogate mother would be responsible for handing over the baby after it was
The couples travelled to Anand, Gujarat for the IVF procedure and again for the
delivery. Most couples ended up reimbursing the clinic less than $US10000 for
the whole process, including fertilizations, the cost to the mother and medical
expenditures. Counselling up until then was a significant component of the
process. The surrogate mothers would be taught to believe and think of the
pregnancy as 'somebody's kid coming to stay at their home for nine months'.
According to Dr. Patel, although none of the surrogate moms had a difficult
pregnancy or any medical problems; the clinic was diligent in its medical
studies and does not take any chances.
However, this approach was criticized on numerous reasons. Critics claimed that
the surrogate mothers were frequently exploited as they were forced to go
through the efforts of pregnancy for very little monetary advantages. An
argument against this disparagement was that this practice benefited both the
parties-it provided one party the opportunity to have their own kid and the
other to receive an amount of monetary advantage which they may not have been
able to achieve otherwise. From a liberal point of view, it might be claimed
that it concluded the woman's right to sovereignty over her body which also
included informed permission to give her body for any activity or purpose
whether it was physical labor, sexual services, organ or tissue donation, or
While in a low-income country such as India, where these surrogate women were
mostly from poor families and backgrounds and were not fully aware of their
rights, it was analytically recognized that their consent was based on a sense
of desperation and helplessness as a result of their financial and educational
backwardness, and that this consent could also result in ill treatment. The
physiological consequences of pregnancy, such as migraines and back pain,
diabetes, high blood pressure, or permanently impaired fertility, as well as
death in extreme cases, were also a consideration. There was also a risk of the
surrogate mother becoming emotionally attached to the child, which could have
Scarring and body pain from caesarean sections were found during the
postpartum examination, as well as signs of postpartum depression. Furthermore,
there was the possibility of condemnation from their communities as well as
rejection by their husbands if they did not comply. Because these types of risks
were infrequently articulated when the consent of the surrogate mother was
obtained, it was debatable whether or not the consent was given with full
knowledge of the risks.
According to one common point of contention against medical tourism from an
economic standpoint, the traveller spent his or her money in a foreign country
rather than in the traveller's home jurisdiction. Both medical and travel
expenses were incurred by the group members in question. As a result, the home
country suffered a significant loss of income as a result of this enormous sum.
For a developing country like India, the potential financial benefits of
participating in this lucrative industry were mind-boggling to contemplate.
However, while it was Indian citizens who contributed to the development of
medical resources and infrastructure, it was foreign patronage that reaped the
benefits of these efforts. That those who pay taxes within the country should be
the ones who benefit from the efforts of doctors whose medical education and
infrastructural facilities were supported by taxpayer dollars was one of the
most common criticisms levelled against medical tourism.
In response to the criticisms stated above, the Indian government decided to
outlaw commercial surrogacy in the year 2013, effective immediately.
Surrogacy: What it is and how it works?
In this process, a couple, typically a husband and wife, enters into a
comprehensive contract with a surrogate woman. According to the terms and
circumstances of the contract, the expectant surrogate mother is inseminated,
bears the baby, and gives up all rights to the male sperm donor and his wife in
relation to the child. In exchange for bearing the child, the surrogate mother
receives a monetary compensation.
The case of Jan Balaz v. Anand Municipality and Others
S.C.A No.3020 of 2008 is
instructive in that the surrogacy arrangement was entered into in the names of
the intending father and the second respondent, the surrogate mother whose name
is listed as designated father's wife, which resulted in vexatious legal
matters concerning the subject of the surrogate child's birth certificate, which
was ultimately resolved in favour of the intending father.
It implies that the person who supplied the sperm for IVF retains exclusive
custody of the child, and the child will be adopted by the individual's spouse.
It is also stated in the court orders that are made prior to the birth of the
child, as the person is identified as the child's father. Forms of permission,
on the other hand, are often signed after the baby is born, to provide the
surrogate woman time to make up her mind.
In an embryo transfer case, the court-provided pre-birth comprehensive papers
identify the couple as the biological parents of the new born infant, thus
establishing their parental rights. Their names and contact information are
included on the birth certificate, and the surrogate mother makes no claim to
Large numbers of couples have benefitted greatly from the surrogacy procedure or
may have contemplated adopting a child via this method in the past. Because of
the increased usage of the procedure, it is particularly important to examine
whether or not the agreement is lawful in its current form. The sale of the
infant may result in a violation of criminal laws, which would raise questions
about its legality.
The agreement with the surrogate mother includes provisions for dealing with
issues such as whether adoption is a good fit and if the kid is legitimate. As a
result of such an agreement, the law would control the parties, balancing
specific parties' rights against their duties.
Surrogate Mother's Legal Rights:
However, it is possible that the growth is masking growing concerns about the
rights of women who choose to be surrogate mothers, the majority of whom come
from impoverished households with little financial resources and are frequently
uneducated. Surrogate moms are from low-income households and are not well
informed about their legal obligations. Surrogacy advertising and publicity have
also sparked worries about the illicit market and child trafficking, which have
resulted in vulnerable women being transformed into baby suppliers as a result
of the publicity and advertising.
Specifically, the ladies are chosen for their ability to serve as carrier
surrogate moms or egg donors. In India, they are selected based on factors such
as appearance, compliance, and financial reliance on the government. In the
commercial surrogacy industry, the process of pregnancy has been devolved into a
business, and the baby has been reduced to the status of a commodity.
People frequently specify criteria for having a kid in the same way as they
would for any other consumer product, as if they were buying a product. People
who take on the position of surrogate mother are often from a lower-middle-class
background, with a special emphasis on those who are in financial need.
Surrogate mothers are exploited in India, and commercial firms and agents take
nearly all of the monetary gains as a result of the country's lack of
invariabilities laws and regulations. The whole surrogacy programme is
transparent from beginning to end. The amount of money that the surrogate mother
receives is very restricted.
For a surrogate mother, the situation is very challenging. Women of pastoral
ancestry are forced into becoming surrogate mothers so that their husbands may
profit financially from the arrangement. Those who fall into this category have
no right to make decisions about their bodies or about their lives. In certain
instances, the negotiating party establishes conditions for the pregnant
surrogate lady, such as the need that she remain in a specific location for
eight months if she is receiving prenatal care as a mitigation.
In such cases, surrogate mothers are moved to hostels under the pretense of
receiving antepartum care for the duration of the pregnancy, which is not the
case. The actual goal is to protect and reassure her, as well as to avoid the
social shame associated with being an outsider in one's society. These
surrogate mothers spend the whole of their pregnancy worrying about their homes
and their children as well.
They are only allowed to go outdoors for antepartum visits, and they are only
allowed to contact with their relatives on Sundays, according to the rules. The
worst part is that they are unable to be paid in the case of negative pregnancy
outcomes, and they are not provided with any monetary benefits or post-pregnancy
medical and psychological treatment.
Due to the fact that they must live away from their home, this is a disaster for
them. In the majority of surrogacy contracts, once the baby is delivered, the
surrogate mother who carried the baby agrees to relinquish all parental rights
to the child and the contract ends. The surrogate mother has the right, as a
result of her surrogacy duty, to be fairly and adequately paid for all of her
medical and other expenses, so long as they are directly related to the
pregnancy in question.
Some extra medical expenses are often protected because if they are not properly
addressed in a fair amount of time, certain issues may arise that may have an
effect on the infant. The surrogate mother has the right to receive medical
advice throughout the course of her pregnancy and beyond, beginning with the
first stages of her consideration of surrogacy. Her participation in the
treatment will be required, as would that of the prospective parents.
Surrogate Children's Rights:
Concerning children's rights, there are additional issues to consider. The
rights of children are inadequate. Having the baby given to you after birth may
have a negative impact on nursing. Unlike biological children, children born via
surrogacy do not get to meet their surrogate moms.
What is the legal position on surrogacy?
According to the Surrogacy Act, the couple seeking surrogacy must be a close
relative of the person who they want to be the surrogate mother in order to be
considered. The law, on the other hand, does not specify who will be considered near relations. The creation of a National Surrogacy Board is contemplated
under the Act in order to ensure that the rules and regulations are administered
in a uniform manner. These authorities are appointed and sustained by this
Board, which also confers upon them the authority and competence to regulate and
oversee surrogate activities.
The Act now mandates that both the couple seeking surrogacy and the surrogate
mother who is willing to provide it obtain eligibility certifications, which
must be issued by appropriate and competent authorities. Foreigners and
Non-Resident Indians are subject to the most stringent restrictions under this
Act (NRIs). It is no longer possible for them to pursue surrogacy in the
country. This was done after a number of instances of baby abandonment and child
trafficking were discovered and investigated. This omission has been the source
of many disputes, all of which have revolved around the issue of whether the
restriction imposed was properly thought through.
However, since same-sex couples do not come within the scope of this Act, the
concept of equal rights for the LGBTQ+ community is dampened, as is the idea of
equal rights for all people. NCP leader Supriya Sule said that the law was
excellent, but it was not up to date with today's technology. Individuals who
are in partnerships other than conventional monogamous marriages are subject to
the same restrictions.
Thus, not only gays but even single parents and couples
living together have been excluded from the scope of this Act. In India, they
are unable to seek surrogate pregnancy. The couple wishing to use a surrogate
must have been married for at least five years and must have obtained a
competent certified doctor's certificate confirming their infertility before
proceeding with the procedure.
Couples who already have children are also subject to a further restriction. In
India, it is not allowed for childbearing couples to obtain surrogacy services.
Such couples, on the other hand, are eligible to adopt children under current
Additional requirements apply to the surrogate mother, including the following:
- The surrogate mother should be married to the surrogate father
- Prior to the surrogacy offer, she must have had a kid.
- She must also be between the ages of 25 and 35 years old.
- The surrogate mother will only be permitted to use her services once.
- The Act also prohibits any monetary transaction between the surrogate mother and
the intended parents.
- This Act has been seen and condemned as more of a ban than a regulation on a
number of occasions.
As a result, in 2020, India's cabinet passed the Assisted Reproductive
Technology Regulation Bill, 2020, which repealed the previous legislation, which
restricted the service to only Indian couples who had been married for at least
five years at the time of application. In addition, the legislation stipulated
that one of the couples must be infertile. It was previously only possible for
the commissioning couple to contact a female near relative. The most
significant change brought about by this law is that widows and divorcees will
now be able to use surrogacy as well.
Surrogacy Poses a Number of Challenges:
In addition to the issues already stated, one of the most pressing issues that
must be addressed is the issue of financial security for the mother who is
serving as a surrogate.
In countries where commercial surrogacy is permitted, such as India, Russia,
Georgia, Ukraine, Thailand, and a few states in the United States of America,
there are legislations in place that provide some relief (relief) to the
surrogate mother. However, as has been reported in the media, it is more often
than not the case that both the deliberated parents and the surrogate mother are
exploited in the name of benefaction. When this occurs, the laws and standards
that have been put in place are ineffectively enforced.
One other problem that is causing tension is the subject of the kid who was
delivered via surrogate motherhood. A lot has been written about the case of the
Israeli couple who had difficulty proving paternity of their kid, as well as the
story of the German couple who had to fight a long court struggle to get
citizenship for their Indian surrogate child, in both Indian and international
In the United States of America, mandatory testing in terms of psychological and
health criteria is practiced; however, Indian laws focus only on the infectious
disease's aspect of the matter, failing to take into consideration the impact
of psychological health on the consecutive intended parents as well as the
The exploitation of surrogates is widespread, with many women from low
socioeconomic strata being drawn to, engaged with, and enticed into surrogacy
with the promise of quick monetary gain. These women are often left high and
dry, with the delegates and ART clinics collecting the lion's share of the
money and providing no post-delivery care, as required by Indian regulations and
The two scenarios: the Indian scenario and the international scenario
The Indian Council of Medical Research (ICMR), in the year 2005, developed and
created a set of rules that must be adhered to by any and all people or
organizations involved in the area of supported and assisted reproductive
methods, as well as surrogacy.
It outlined precise procedures to be followed throughout the surrogacy process,
and it also stated explicitly that gestational surrogacy is the recognized
modality to be followed in a commercial sense in India. There were extensive
procedures in place for the certification and recognition of ART clinics in the
nation, and state and district level forums were established to oversee the
performance of these clinics as well.
Following that, the Assisted Reproductive Techniques Bill was drafted, although
it has not yet been put into effect in the nation. It was based on the
recommendations that were stated in the bulletin by the International Commission
on Medical Research (ICMR); nevertheless, just as it was the case with the ICMR
guidelines, it is also the case with the proposed law. However, although there
were many problems that were handled and properly and appropriately regulated,
there is still room for improvement.
In the absence of a single point of redress mechanism created or planned to be
implemented by the legislation, a surrogate mother or the intended parents may
attempt to resolve their grievances via alternative means. Several factors, such
as age, number of embryo implantations, blood transfusions, and other factors
were listed in the proposed legislation for the surrogate, but there was no
discussion of whether precise demographic requirements should be established for
the intended parents or not.
Despite the fact that the act does not distinguish
between caste, creed or other factors, the authors believe that a minimum
standard of care must be exercised to ensure that the purposeful parents are
genuine and not criminal rudiments, that they are stable and can support a new
member in their family, and that the new house treats babies fairly and without
This is a lengthy procedure that should be carried out in a way
similar to that which is followed in western nations, where parents of adopted
children are exposed to replicative, but non-intrusive, verification of the
wellbeing of their kid. In India, the Integrated Child Development Services (ICDS)
programme, which was launched by the government, may help to accomplish this
In addition, the The Delhi Artificial Insemination (Human) Bill 1995 is a
piece of legislation that ought to be mentioned. Which, although being
productive only in the state, was originally developed to restrict the
proliferation of different ART clinics across the state. It has also been
recouped as a result of the ICMR recommendations.
According to the comprehensive rules, there will be no disciplinary action taken
against physicians who commit misconduct in clinics. The Indian Medical Council
(MCI) and the State Medical Councils are in charge of dealing with the issue,
which falls within their jurisdiction (SMC).
A legally valid contract between the intended parents and the surrogate mother
is deemed to have been formed under the Indian Contracts Act 1872, and the
surrogate mother relinquishes all rights to the child as part of the agreement.
In the U.S., the situation is similar in a few states where, through contested
cases, it has been kept in a position comparable to Indian legislation where the
surrogate mother gives up all rights to the kid. However, the situation is
different in the UK, where the mother may claim the infant up to 2 years after
birth, and it is the court's discretion to approve this.
However, due to the US adopting federal government structure, the laws are not
centrally consolidated. The U.S. state of California recognizes the act of
commercial surrogacy, whereas Washington State considers commercial surrogacy
undesirable. Traditional surrogacy is permitted in the State of California,
however in this instance the biological mother remains the legal mother, whereas
traditional surrogacy is not legally recognized in the UK and India.
Traditional surrogacy is banned in Utah State, United States of America, and it
is a requirement that at least one intended parent must supply one gamete in
gestational surrogacy. The U.S. state of Virginia does not register the intended
parents as legal parents on the baby's birth, but instead needs a legal
procedure to alter the parents name once both previous and surrogacy consent is
In another US State, New York State, any and all surrogacy arrangements
including remuneration of any sort are deemed invalid and unenforceable,
comparable to UK regulations and opposed to India's proposed law.
The Surrogacy Laws in India:
A silently operating booming industry in India, which, according to the
Confederation of Indian Industry (CII), generates more than $2 billion per year,
but in response to all of these unregulated tactics and to pave the way for a
safe and legalized passage for all parties involved, the Supreme Court directed
that a statute be established as soon as possible, taking into consideration the
enormous scale of the industry.
Even the Indian Legislation Commission, in its 228th Report, which was presented
on the 5th of August, 2009, said that a suitable law governing surrogacy in the
nation was urgently required. The title of the report was Need for Legislation
to Regulate Assisted Reproductive Technology Clinics as well as Rights and
Obligations of Parties to a Surrogacy, and the report was written by a group
The Assisted Reproductive Technologies (Regulation) Bill, 2008, was drafted by
the Indian Council of Medical Research (ICMR), which falls under the Ministry of
Health and Family Welfare. It has been amended several times by the Ministry of
Law and Justice, including in 2010, 2013, and 2016, but the legislation has been
amended and proposed numerous times but has never been passed.
However, in 2013, surrogacy by foreign heterosexual couples and single parents
was outlawed, and in 2015, commercial surrogacy for foreign nationals was
outlawed as well, with the entrance of embryos for research reasons being the
sole reason for their admission. Shortly after, in 2016, the Surrogacy
(Regulation) Law, 2016 was presented and approved by the Lok Sabha, recommending
that altruistic, domestic surrogacy be legalized. However, the bill was unable
to be implemented because of the adjournment of the Parliamentary session.
The Surrogacy (Regulation) Bill 2019 is a reintroduction of the Surrogacy
(Regulation) Bill 2016, which failed to pass through both chambers of
parliament. This bill was presented in the Lok Sabha on July 15, 2019, and it
was approved on August 5, 2019, according to the Lok Sabha website. On the 21st
of November, the Rajya Sabha passed a resolution referring the Bill to a
Selected Committee for further consideration and consultation.
report was submitted on the 5th of February, in the year 2020. After taking into
consideration the ideas from the various stakeholders, the chosen committee came
up with a total of 15 (fifteen) recommendations that would be included into the
2020 legislation. A revised version of the draught law enacted by the Lok Sabha
in August 2019 was introduced as the Surrogacy (Regulation) Bill, 2020, which
was approved by the Cabinet after all 15 suggestions of the select committee
The Amendments to the Surrogacy (Regulation) Bill, 2020:
There are many important and historic improvements brought in by this 2020 law,
The Bill fully restrains commercial surrogacy and only permits altruistic
surrogacy, meaning that the surrogate mother would not get any financial
compensation and rewards for her pregnancy, save for the minimum medical cost
and insurance coverage. Commercial surrogacy will be banned, consisting of the
selling and acquisition of human embryos and gametes.
The current law also removes the concept of 'infertility' which was formerly
defined as the inability to conceive after five years of unprotected sexual
intercourse. The select committee was of the opinion that 5 (five) years is too
lengthy a time for a couple to wait for a baby and viewed it as unreasonable and
against the purposes of the Act.
The Bill permits surrogacy to Indian married (Heterosexual) couples (between 23
to 50 years for woman and 26 to 55 years for husband) and extends the
applicability to cover Indian origin Married Couples, and Indian Single Woman
(only widows and divorcees in the age range between 35 and 45 years).
The planned Insurance cover for surrogate moms has been increased from 16 months
to 36 months, to offset the significant risks of medical problems even after
Before proceeding with surrogacy, the couple must acquire a Certificate of
Essentiality as well as a Certificate of Eligibility (based on confirmed
infertility) from the appropriate authorities. It further states that intended
partners should not, under any circumstances, leave their new born child as a
result of a surrogacy arrangement. During the adoption procedure, the new born
infant will be entitled to all of the rights and privileges that are accessible
to a natural child, and there will be no choosing of gender.
The law also governs the operation of surrogacy clinics by requiring them to
register with the appropriate and relevant authorities on a necessary and
The law defines commercial surrogacy as the practice of undertaking or
advertising for commercial surrogacy, importing or selling human embryos for
surrogacy, exploiting the surrogating mother or the surrogate child, and
abandoning the kid as crimes. Prison sentences of up to 10 lakh rupees and fines
of up to ten years would be imposed for such crimes, as would be the penalties
A National surrogacy board (NSB) and State surrogacy boards (SSB) would be
established, with its primary functions being to advise the government on policy
issues and to supervise the operation of surrogacy clinics, according to the
Surrogacy Agreements and the Bill's Effect:
Since the Bill has established rigid regulatory procedures, analysing the
legality of surrogacy contracts is essential. Surrogacy contracts play a vital
part in surrogacy. Without a surrogacy contract, regulating the procedure
becomes extremely difficult since it may lead to a lot of legal problems. The
main aim of surrogacy contracts is to equally safeguard surrogate moms, intended
parents, and infant.
Financial and legal issues are covered by such contracts.
pose 3 (three) contradictory questions:
- Do surrogacy contracts mean selling infants?
- Whether surrogacy contracts are banned by any legislation or not?
- Is a surrogacy contract illegal instead of Section (24) of the Indian
Contract Act, 1872?
The most contentious topic in surrogacy contracts is whether such arrangements
amount to selling infants. The Surrogacy (Regulation) Bill, 2020, put an end to
all such speculations by attempting to introduce a blanket prohibition on
commercial surrogacy. Commercial surrogacy advocates believe that a woman has
the right to propagate and may seek remuneration during gestation. Such an
argument, however, is unlawful in law since commercial surrogacy arrangements
disregard and weaken the rights of surrogate mothers.
In the instance of Baby M, the court found it extremely difficult to comprehend
consent in surrogacy situations. The surrogate mother would establish strong
connection to a kid that may lead to alterations in the baby's desire to
separate. The Surrogacy (Regulation) Bill 2020 therefore takes this aspect into
account and stipulates that a baby born through surrogacy will be considered the
biological child of the intending couple or mother.
Another question that arose was whether any law prohibits surrogacy contracts or
opposes public policy. In some circumstances, courts may reject a public-policy
considerations contract. Many opponents claim that altruistic surrogacy in
itself is an unethical contract, since it is against the child's interests. The
Supreme Court interpreted Section (23) of Indian Contracts Act 1872 to public
interest or benefit agreements.
However, establishing a real connection between allowing surrogacy and public
interest is extremely difficult, and in such instances public policy does not
fit in. Indian courts have supported all kinds of surrogacy contracts and
recognized reproductive rights as part of the privacy right.
In the case of Jan Balaz v. Anand Municipality
L.P.A No. 2151 of 2009, the
Gujarat High Court held that while rules and regulations are required to protect
the rights of a surrogate mother, guardianship, fertility clinic
responsibilities, etc., the legal position remains the same, i.e., public
welfare and policy does not affect the enforceability of surrogacy contracts.
The 2020 Bill aims to address these voids by substantiating surrogacy laws.
Furthermore, it cannot be argued that the purpose of surrogacy contracts is
contrary to the legislation in place of section 24 of the Indian Contracts Act,
1872 because section 35 of the 2020 Bill expressly bans commercial surrogacy,
exploitation of surrogate women and infants born through surrogacy. It
castigates the same. Therefore, the 2020 Bill has guaranteed that surrogacy
contracts remain intact. The safeguards were also allocated to regulatory
Taking the Judicial Approach:
The past two decades has witnessed an exponential growth in surrogacy. The 2020
Bill was intended to properly regulate surrogacy, limit commercial surrogacy and
enable ethical surrogacy. To be widely accepted among the people, every Bill
must pass The Golden Triangle Test.
Fundamental rights are enforceable by every Indian citizen regardless of
birthplace, caste, ethnicity, creed, or gender. Among all the articles
regulating fundamental rights, Articles 14, 19 and 21 are called the 'Golden
Triangle' of the Indian Constitution.
Some Bill sections, however, do not comply with constitutional requirements. A
deeper examination shows that the Bill fails to pass the 'Golden Triangle
Test' established by India's Hon'ble Supreme Court. The present section
highlights Bill 2020's constitutional legitimacy.
Article 14 of the Indian Constitution ensures 'equality before law and equal
protection of laws for all citizens.' It bans class laws but allows reasonable
categorization. The Hon'ble Supreme Court established two criteria to satisfy
the requirement of reasonable categorization, i.e., comprehensible differential
and rational nexus.
Furthermore, in the case of E. P. Royappa v. State of Tamil Nadu
1974 AIR 555,
1974 SCR (2) 348, the conventional notion of equality was extended where it was
ruled that equality is a dynamic concept and its dimensions cannot be cribbed,
cabineted and limited to old doctrinary limits. If the categorization is not
based on intelligible distinction and has no connection with the intended item,
the differentiation is deemed invalid.
Recently, India's Supreme Court overturned section 377 of the Indian Penal Code,
i.e., decriminalizing consensual sexual encounters between two adult people of
any sexuality. The Bill, however, goes against this decision. It rejects
Homosexual Couples rights to commission a kid and refuses to recognize these
couples as legitimate
Moreover, in the landmark decision of National Legal Services Authority v. Union
(2014) 5 SCC 438, the Supreme Court of India recognized Transgender as
third gender. But 2020, Bill is quiet on giving the Third Genders equal rights.
The reasons of the Bill are extremely limited, invalidating same-sex couples and
Transgender from contracting surrogacy.
There is no logical connection to enable altruistic surrogacy to married,
widowed, or divorced Indian nationals with the purpose of the Bill. A deeper
examination of 2020, Bill shows that marriage-based categorization is not
acceptable under Article 14 of India's Constitution.
Moreover, if single parents, i.e., non-married persons, are permitted to adopt
children. Bill 2020 aims to prohibit abuse of this technique and safeguard women
from exploitation. Domestic surrogacy process, however, may be a hotspot for
corruption and fraud.
Such Article of India's Constitution allows for freedom of trade and
. Article 19(6) establishes the basis for limiting such right
reasonably. Apparently, however, the 2020 Bill portrays itself in the public
interest, an in-depth examination shows that it does not.
In Chintaman Rao v/s State of Madhya Pradesh 1950 SCR 759, the Supreme Court
ruled that 'fair limitation' should not be arbitrary and disproportionate. It
was also ruled that a fair balance must exist between the freedom given and the
The Apex Court ruled that a complete prohibition on bar dancing is
unconstitutional because many women would then have to take up odd occupations
to live. Similarly, a prohibition on commercial surrogacy would violate Article
19(1) (g). The subterranean surrogacy danger also hides as a consequence of the
The Supreme Court of India ruled that the right to life as entrenched in Article
21 of the Constitution also encompasses the 'right to livelihood' in the
leading decision of the Indian Consumer Education and Research Center and Ors.
V. Union 1995 SCC (3) 42. The identical concept was earlier recognised in Olga
Tellis v. Bombay Municipal Corporation 1985 SCR Supl. (2) 51. However, by
imposing a blanket prohibition on commercial surrogacy, the 2020 Bill likely to
violate the right to livelihood since impoverished women are urgently anxious to
earn money to meet ends.
It also affects women who wish to achieve some sort of financial independence or
security for themselves and their family by consenting to be surrogates instead
of monetary remuneration.
Furthermore, in the case of Devika Biswas v. Union of India
(2016) 10 SCC
726, the Hon'ble Supreme Court recognized the right to reproduction under Article 21
is an essential component of 'right to life.' A woman's reproductive rights
encompass carrying a baby, giving birth, and raising children. Privacy, dignity
and integrity rights are also implicated.
In the case of R. Rajagopal v. State of Tamil Nadu
1995 AIR 264, the learned
judge, after referring to Kharak Singh and American decisions, stated the law as
follows: - Any right to privacy must encompass and protect the personal
intimacy of the home, family, marriage, motherhood, procreation and child
Thus, denying surrogacy rights to individuals belonging to the LGBTQ community,
single persons, elderly couples and limiting them to heterosexual couples,
widows and divorce women of a certain age contradicts the basic right to life
under Article 21 of the former.
Recently, in historic judgement of K.S. Puttaswamy v. Union of India
(2017) 10 SCC 1 the Supreme Court ruled that a person's privacy extends to his/her own
liberty of mind, body and other choices. The Apex Court also examined the case
of B. K. Parthasarthi v. Government of Andhra Pradesh 2000 (1) ALD 199, where
the Andhra Pradesh High Court ruled that State intervention in procreation
amounted to a direct infringement of one's right to privacy.
Therefore, given that reproduction or procreation is a highly personal and
private choice and must be respected, the 2020 Bill must guarantee minimal state
involvement in such a decision-making process. On many accounts, the government
has failed to explain why unmarried and childless women cannot become surrogate
mothers. A woman alone should have the right to determine her body, fertility,
and parenting choices. The 2020 Bill therefore partly linked with the right to
livelihood, privacy and reproductive autonomy under Article 21 of the Indian
Looking at the aforementioned precedents and rationale, it may be determined
that the 2020 Bill does not pass the Golden Triangle Test. It must be kept in
mind that in India, surrogacy is not simply another industry, it is the main
source of income for economically devastated women. It is also a major source of
income for individuals at surrogacy clinics.
Therefore, the 2020 Bill must not endanger all parties engaged in the process.
It must be changed to achieve a proper balance between its requirements and
people' rights. The Bill as a whole is not wrong; it requires modest changes to
become a comprehensive piece of law.
Exploring Potential Loopholes and Offering Recommendations:
The goal of law in a community is to preserve people's freedom, in addition to
acting as a tool for distributing positive entitlements. In order to fulfil its
responsibilities, legislation must keep pace with emerging technology in order
to reach the poor. The 2020 Bill places a total prohibition on commercial
surrogacy, allowing only altruistic surrogacy.
It appears, however, that this
tread wasn't fully noticed. Commercial surrogacy is sometimes an appealing
option for parties. That's because it gives the impoverished surrogate mother
financial security and also involves foreign currency investment.
India confronts the serious issue of poverty, and with the introduction of
surrogacy in the nation, impoverished women engage in such processes. Therefore,
a halfway must be reached that allows commercial surrogacy, but in a better and
adequate regulated manner. Prices must be set by the proper authorities, and
negotiating should not be allowed.
Despite the fact that the Bill encourages
altruistic surrogacy, it also has the potential to encourage black marketing and
corruption, as well as a covert surrogacy process. In the case of altruistic
contracts, the gestational carrier may suffer more out-of-pocket expenses, and
the intended parents may also incur additional expenses as a result of
misinformation or other aberrations.
It has not been addressed in any way by the 2020 legislation. It entirely relies
on the assumption that altruistic surrogate mothers are not exploited,
completely ignoring the reality that unpaid surrogacy is likewise an
exploitative practice. Furthermore, the 2020 Bill anticipates that a surrogate
mother will go through the whole surrogacy procedure out of sympathy for the
Ironically, the so-called altruistic model encourages the use of forced labour.
As a result, the idea of compensatory surrogacy must be established in order to
address this problem. This will compensate the surrogate mother for the losses
she has experienced in terms of income, sufferings, health, and, ultimately,
death, among other things, and as a result, the phrase altruistic surrogacy
should be substituted with the term compensatory surrogacy.
The 2020 Bill recommends that the parties get a Certificate of Eligibility
before to beginning the surrogacy procedure in order to ensure that the process
is compliant with the law. But it doesn't say anything about how long
certificates must be valid before they are revoked.
In a similar vein, the Bill allows for the permission of the competent
authorities and the agreement of the surrogate mother for an abortion, but it
makes no mention of the consent of the intended parents. It opens up a loophole
that may be exploited severely and intensively, and surrogate moms may be able
to take use of it.
Due to the fact that surrogacy is more of a personal decision than a commercial
duty, such loopholes should not be permitted since they may result in a
violation in the regulatory system, which can result in serious conflicts
between the parties involved in the process. Furthermore, it must be guaranteed
that a woman medical practitioner is appointed to work in fertility clinics on a
full-time basis at the district and state levels at the federal and state
A clause of this kind would guarantee the trust of both parties engaged in the
transaction. As a result, in order to give full effect to the provisions of the
Bill, such unconventional measures must be put in place. Because of widespread
and far-reaching issues such as poverty and unemployment, women who work for a
living are more than willing to take the role of surrogate mother in order to
help others. The situation is so dire that women are considering alternatives to
the notion of renting their wombs in order to provide for their families.
The surrogate mother's income loss during pregnancy is not reimbursed, however,
since there is no provision in the Bill that specifically addresses this issue.
Compensation that is appropriate and equitable for the surrogate mother must be
provided, and the process must be controlled by the government itself. Surrogacy
also raises the issue of forced labour, which is a concern. First and foremost,
it always concerns the fundamental existence of human people, their bodies, and
their sense of self-identification. Second, the majority of people rely on
manual labour for their subsistence. Because of this reliance, some people are
at a competitive disadvantage in relation to the buyer of their labour.
A counselling section should be included in every Reproductive Medical Clinic,
as a precaution against the use of forced labour. This should be emphasized in
light of the problem of forced labour. There is potential for this to be an
effective and useful technique for determining the mental state of the surrogate
method participants. Fair and impartial disclosure of the whole surrogacy
procedure, as well as the dangers and hazards connected with it, must be given
to the surrogate mother before she agrees to participate. In addition, any
unanticipated circumstances of divorce between the intended couple, as well as
any break between them, must be taken into consideration.
In spite of the fact that it is impossible to anticipate such circumstances, the
Bill must contain clear and explicit rules addressing the duties and roles of
intending couples and surrogate mothers in the event that surrogate infants are
abandoned by their intended parents. Consequently, high standards of care,
informed consent, and recompense for all those engaged in the provision of
Reproductive Services in India must be ensured by the law.
Surrogacy is considered to be a component of Assisted Reproductive Technology
(hence referred to as 'ART'). The Surrogacy Bill must be controlled with the
ART Bill. Both the Bills are intimately interwoven because ART Bill specifies
the method, the techniques, and the developing technology of reproductive
medicine in surrogacy while the Surrogacy Bill deals with the consequences and
the legal ethical problems resulting from such agreements.
Some people are concerned about the possibility of introducing the ART Bill
before the Surrogacy Bill. The ART Bill provides a complete framework and
because it does not impact on surrogacy, the government must guarantee that
there is greater synchronization between both the Bills. Hence, the Surrogacy
Bill shall come into effect only after the passage of the ART Bill. The ART
Bill, the Surrogacy Bill, the modification to the Medical Termination of
Pregnancy Act, and the older Pre-Conception and Pre-Natal Diagnostic Techniques
Act together constitute the regulatory authority and safeguard the Reproductive
Rights and choices of surrogate mothers in India.
Since surrogacy is a socially and culturally sensitive issue in India, no
loopholes regarding the same must exist. It also has significant and deep
psychological consequences and is a severe issue of privacy. Therefore, the
appropriate authorities must be open to ideas and suggestions to serve the best
interests of the parties.
People's lives have been drastically altered by the advent of science and
modern technologies. Read more about it here. It has also brought forth
difficulties and issues that were previously unheard of, which is a mixed
blessing. The study of biotechnology has assisted us in the discovery of sex
determination methods as well as other scientific advances such as DNA testing,
fingerprinting, and other technologies that have made it easier to administer
The recent advancements in the area of embryonic stem cells have had a
significant impact on human existence in a variety of ways. Furthermore, the
notion of motherhood has been broadened and redefined to encompass genetic
mothers, surrogate mothers, biological mothers, and social mothers, among other
things. In the area of Reproductive Technologies, there has been a remarkable
transformation during the last three decades. Techniques such as donor
insemination, in-vitro fertilizations, and embryo transfer procedures have been
developed by the field of reproductive medical sciences, and they have totally
changed and revolutionized the environment in which women reproduce.
families have spared a great deal of sorrow as a result of the scientific
technology answer, and this solution has turned out to be a godsend for many
couples who are now blessed with a child that is descended from their own DNA.
Surrogacy has become a need in today's culture as a result of technological
advancements. It is the final resort for infertile couples and for people who
are unable to produce a biological child of their own. As long as there is a
lack of children in the family, surrogacy will continue to be a significant and
dominating problem, with significant social and psychological consequences for
the families involved.
As a result, surrogacy must be viewed through the prism
of fundamental rights. Furthermore, because public policy is a concept that is
constantly evolving, the government must enact laws that take into account
shifting social patterns as they occur. In terms of social, moral, ethical,
legal, and scientific issues, the proposed Bill is a one-of-a-kind and distinct
blend. It makes a powerful and determined effort to achieve a balance between
the competing interests.
It prohibits commercial surrogacy and establishes
penalties for those who do so; however, it is more important to protect the
interests of the women who provide a womb for surrogacy first and foremost in
this regard. Surrogate mothers must be provided with some form of monetary
compensation, which may include the provision of appropriate insurance and the
payment of medical expenses, which are borne by the surrogate mother in addition
to her physical and mental suffering.
Due to the fact that surrogacy is a
financial factor and component, in addition to being a social and emotional
factor, this must be completed without fail. Generally speaking, it is regarded
as the most important and fundamental factor that has a direct relationship with
the right to subsistence. The surrogate mother's reproductive rights must not
only be properly safeguarded, but they must also be respected; in addition, she
must be provided with a special level of care during her pregnancy.
essential to consider the surrogate mother's physical and emotional well-being.
Prior to entering into surrogacy agreements or contracts, proactive measures
must be made to advise both parties on their legal options. The ART Bill must be
passed prior to the Surrogacy Bill in order to improve and amplify the smooth
working of both Bills, resulting in a stronger and more effective regulatory
To summarize, surrogacy is a critically important industry in
India, and it is expected to expand at an exponential rate in the next years,
according to industry analysts. Due to the fact that it is intimately connected
to the social and psychological fabric of society, caution must be used in the
process of governing it. For any gaps or loopholes to be avoided, the relevant
authorities must go through everything with a fine-tooth comb before proceeding.
It is essential that all parties involved in the surrogacy process and procedure
receive thorough training and are fully informed of the health and legal issues
that surround it.
This includes healthcare providers, infertility clinics,
medical tourism companies, as well as the broader tourism industry, the
concerned governments, and women who provide surrogacy services. Better
regulation of the law may be made possible with the participation of
Award Winning Article Is Written By: Mr.Yash Patil
(Bharati Vidyapeeth New Law College, Pune)
Authentication No: JL119092404640-09-0721