Another name for Surrogacy. Surrogate mother is the substitute for the
genetic-biological mother. There are two types of surrogacy- traditional
surrogacy and gestational surrogacy.
In traditional surrogacy, the child is thereby genetically related to both the
surrogate mother, who provides the egg, and the intended father or anonymous
In gestational surrogacy, the child is thereby genetically related to the woman
who donated the egg and the intended father or sperm donor, but not the
Commercial surrogacy is a form of surrogacy in which a gestational carrier is
paid to carry a child to maturity in her womb and is usually resorted to by
higher income infertile couples who can afford the cost involved or people who
save and borrow in order to complete their dream of being parents.
Legal Insights (Evolution of Surrogacy Laws)
India legalised commercial surrogacy in 2002, the immense growth of surrogacy in
India led to an impeccable growth of several commercial firms and firms claiming
speciality in surrogacy law and guiding and assisting foreign tourists who came
in search of having an Indian mother rent her womb for the blessing of a child.
Such arrangements can be considered to be exploitative in nature as they are not
only encouraging baby selling but also diminish the dignity of women's
reproductive capacities and the inherent value of the children by modifying
them. This paved way for the establishment of various foreign companies in
India, assisting people coming round the globe and help them find a surrogate
Indian mother, assisting the foreigners in paper work related to surrogacy and
assisting the child in acquiring a passport and a visa to depart from the
The 228th report of Law Commission of India has recommended for prohibiting
commercial surrogacy and allowing ethical altruistic surrogacy by enacting
suitable legislation. One of the prime reasons for surrogacy services to bombard
in India is poverty, which makes poor Indian women rent her womb for money or
other essential commodities.
In 2005, the Indian Council of Medical Research (ICMR) issued guidelines to
regulate surrogacy arrangements. The guidelines stated that the surrogate
mother would be entitled to monetary compensation, the value of which would be
decided by the couple and the surrogate mother. The guidelines also specified
that the surrogate mother cannot donate her own egg for the surrogacy and that
she must relinquish all parental rights related to the surrogate child.
# Baby Manji Yamada vs Union of India
(AIR 2009 SC Page 84)
Baby Manji Yamada was a child born to an Indian surrogate mother for a Japanese
couple who before a month of the child’s birth separated and the future of the
child was left in dark. The biological father, Ikufumi Yamada wanted to take the
child to Japan but the legal framework had no such provision for such a case nor
did the Japanese government permit him to bring the child back home. In the end,
the Supreme Court of India had to intervene and the child was allowed to leave
the country with her grandmother. The biggest impact of the Baby Manji Yamada
decision has been that it spurred the government of India to enact a law
The Supreme Court of India in 2008 held surrogacy permissible in India after
Manji’s case which increased the international confidence in going in for
surrogacy in India.
# Jan Balaz Vs Anand Municipality
Gujarat High Court ruled that the birth certificate of the child born through
surrogacy will carry the name of the surrogated mother as against the biological
mother and the child would be granted a passport of India which certifies him as
the Indian Citizen and the surrogate mother in turn had to give the child to
German couple in adoption, who had sought the sercices of Indian surrogate
The Supreme Court is still seized of an appeal against this decision and during
its hearing Supreme Court felt a grave need on the subject which made way for
the proposal of the bill of Parliament.
All these cases have provoked academic interest and has brought the surrogacy
ban bill into existence that rules out surrogacy rules for foreign citizens
approaching Indian mother.
The ban is already in place through a letter dated 28th September,2015 from ICMR
to all clinics in India that directs them not to assist foreign couples on
having a child through an Indian surrogate mother.
The Surrogacy Bill
The Surrogacy (regulation) bill, 2016 was introduced in Lok Sabha on 21st
November, 2016 and on 12th January, 2017 it was referred to standing committee.
Thereafter on 10th August 2017 the committee gave its report on the same to Lok
Sabha and on the basis of that report Lok Sabha passed the bill on 19th December
The Surrogacy bill, 2016 focuses on prevention of commercial surrogacy and
promotion of altruistic surrogacy. The bill also safeguards the surrogate mother
and child from exploitation. Surrogacy is a way by which an infertile married
couple who are eligible in accordance with the provisions of the bill can now
bear a child with help of a surrogate mother eligible as per provisions of the
bill. However, the surrogate mother will not be given any monetary benefit or
compensation for renting her womb to intended couple except her medical and
insurance expenses during pregnancy.
The proposed legislation provides for registration of surrogacy clinic and
establishment of National and State surrogacy board and Appropriate Authority.
The Surrogacy (Regulation) Bill, 2016 passed by Lok Sabha provides for the
Section 2 provides for:
Altruistic surrogacy altruistic surrogacy
means the surrogacy in which no
charges, expenses, fees, remuneration or monetary incentive of whatever nature,
except the medical expenses incurred on surrogate mother and the insurance
coverage for the surrogate mother, are given to the surrogate mother or her
dependents or her representative.
Commercial surrogacy commercial surrogacy
means commercialization of
surrogacy services or procedures or its component services or component
procedures including selling or buying of human embryo or trading in the sale or
purchase of human embryo or gametes or selling or buying or trading the services
of surrogate motherhood by way of giving payment, reward, benefit, fees,
remuneration or monetary incentive in cash or kind, to the surrogate mother or
her dependents or her representative, except the medical expenses incurred on
the surrogate mother and the insurance coverage for the surrogate mother;
Couple as legally married Indian man and woman above the age of 21 years and 18
years respectively married Man and Woman.
means a practice whereby one woman bears and gives birth to a
child for an intending couple with the intention of handing over such child to
the intending couple after the birth;
Important Provisions of BillSection 3 of the Act provides for:
1) Compulsory Registration of Surrogacy Clinic,
2) No surrogacy at other place than registered clinic, no Specialist or medical
practitioner shall perform commercial surrogacy
3) No Specialist or medical practitioner to perform without qualification
4) No promotion or aid or advertisement
* of commercial surrogacy in any way by clinic or any person
* That encourage a women to be a surrogate mother
* Seeks a women to Act as a surrogate
* Implies the willingness of a women to become a surrogate
5) No abortion without consent of mother and Appropriate Authority (such
authorisation should comply with the provisions of the Medical Termination of
Pregnancy Act, 1971)
6) NO storage of Human Embryo or Gamete is allowed for surrogacy purpose.
Regulation of Surrogacy and Surrogacy Procedures
Section 4- Under following purposes surrogacy is permitted- Infertile,
Altruistic (Unselfish) purpose, No commercial surrogacy, No prostitution or sale
of born surrogate child, for any other purpose or disease for which regulation
made by Board allows.
Sec 4(3) Director or In-charge of clinic and specialist of clinic are satisfied
that following Conditions are fulfilled-
Certificate is issued by competent Authority after confirming the below
1) Certificate of infertility to the couple intending surrogacy by District
2) Order of Court passed by a Magistrate of the first class or above, regarding
custody and parentage of child,
3) Insurance of Surrogate mother and child.
Eligibility certificate of surrogate mother by Appropriate Authority
1) Ever married woman having own child (25-35 age).
2) Close relative (Not defined in this Act)
3) One surrogate birth in her life time (no limit for attempts)
4) Medical and psychological Fitness certificate of intending surrogate mother.
Eligibility of Intending couple Appropriate Authority
1) Age women 23 to 50 man 26 to 55,
2) 5 years of marriage,
3) Indian citizen,
4) No child before by any way (exception- child having life threatening disease
or disorder with no cure with certificate of district medical Board)
: Written consent of surrogate mother is necessary and she shall
be told all the side effects of the birth.
: No child shall be abandoned (Defined under Section 2(a) of the
Act) by the intending parents after birth for any reason or defect or gender.
(Child born by surrogacy shall be deemed to be a natural child)
: No person shall in any way force the surrogate mother to abort
Protection of surrogate motherSection 35
Prohibition of commercial surrogacy and exploitation of surrogate mother,
1. No person or group shall undertake commercial surrogacy or provide any
2. No advertisement or publication for commercial surrogacy
3. No person shall disown abandon exploit in any form the child
4. No person shall exploit the surrogate mother
5. No person shall sell human embryo or gamete for surrogacy
6. No person shall import or help in import of human embryo or gamete for
These Acts are punishable with Imprisonment of not less than 10 years and fine
may extend up to 10 lakh.
Section 36 - Punishment for contravention of any provisions of the Act
Imprisonment of not less than 5 years and fine may extend up to 10 lakh.
Punishment for initiation of commercial surrogacy
Any person who seeks commercial surrogacy shall be punishable with imprisonment
for a term which shall not be less than five years and with fine which may
extend to five lakh rupees for the first offence and for any subsequent offence
with imprisonment which may extend to ten years and with fine which may extend
to ten lakh rupees.
Penalty for Contravention of provisions of Act or rules for which no specific
punishment is provided shall be punishable with 3 years + 5 lakhs continuing
contravention 10,000 for every day.
Presumption in case of surrogacy
Notwithstanding anything contained in the Indian Evidence Act, 1872, the Court
shall presume, unless the contrary is proved, that the woman or surrogate mother
was compelled by her husband, the intending couple or any other relative, as the
case may be, to render surrogacy services, procedures or to donate gametes for
the purpose other than those specified in clause (ii) of Section 4 and such
person shall be liable for abetment of such offence under Section 37 and shall
be punishable for the offence specified under that Section.”
The Bill is yet to be introduced in Rajya Sabha and after the accent of
president the bill will become an Act.
Provisions of Surrogacy (Regulation) Bill 2016:#
The bill is applicable to all the states of India except Jammu and
Kashmir. The bill provides the constitution of National Surrogacy board and
State Surrogacy board for regulation of surrogacy process.
The bill is providing surrogacy to only Indian citizens. Foreigners, NRI, PIOs are not allowed.
Homosexuals and Single parents are also not allowed for surrogacy and
bars the couple who already have children.
The bill provides that women can only surrogate once in her lifetime
and her age should be in between 25 to 35 years....
The couple who intend for surrogacy should be aged between 23 to 50
years and married for at least 5 years.
The bill also provides provision for the custody of the child to be
born which The bill contains the provision of penalty and imprisonment if the
person violated the law.
National Surrogacy BoardThe board consists of:
Chairperson – Minister in-charge of Ministry of Health and Family Welfare Vice
Chairperson - Secretary to the government of India in-charge of Department
dealing with surrogacy matters.
Members – Three women members of Parliament, Three members of Ministries of
Central government from Women and Child Development, Legislative Department in
Ministry of Law and Justice and Ministry of Home Affairs not below the rank of
Director-General of Health Services of Central Government.
National and State Surrogacy Boards
The central and state governments shall constitute the National Surrogacy Board
(NSB) and the State Surrogacy Boards (SSBs), respectively. Functions of the NSB
(i) advising the central government on surrogacy policy
(ii) laying down the code of conduct of surrogacy clinics; and (iii)
supervising the functioning of SSBs.
Functions of the SSBs include:
(i) monitoring the implementation of the provisions of the Act
(ii) reviewing the activities of the appropriate authorities
functioning at the state/union territory level.
Authorisation for termination of pregnancy
Approval for termination of pregnancy from the appropriate authority
Under the Bill, authorisation of the appropriate authority is mandatory for an
abortion to be done during the period of surrogacy. The authorisation also has
to comply with the provisions of the Medical Termination of Pregnancy (MTP) Act,
1971, which specifies the grounds for termination of pregnancy. However, the
Bill does not specify the time period by which such authorisation for abortion
has to be given.
Intending couple has no say in the consent to abort a surrogate child
An abortion of the surrogate child requires the written consent of the
surrogate mother and an authorisation by the appropriate authority. The Bill
further states that no person may force the surrogate mother to abort the foetus.
However, after the birth, the child is considered the biological child of the
intending couple and they are responsible for bringing up the child. If a child
being born out of surrogacy arrangement is at the risk of physical or mental
abnormalities, under the Bill only the surrogate mother’s consent will be
required to abort the child. The intending couple will have no role in this
decision. Under the provisions of the MTP Act, 1971, abortion in such cases is
allowed with the consent of the ‘pregnant woman’.
The complexity in the case of surrogacy is that the surrogate mother (who is
carrying the child) is different from the intending couple who has to bring up
Presumption that the surrogate mother was compelled to be a surrogate
If a surrogate mother renders surrogacy services other than those permitted
under the Bill, it shall be presumed that she was compelled to do so by:
(i) her husband;
(ii) the intending couple or any other relative.
(iii) They will be liable for abetting the offence of initiating
commercial surrogacy. The burden of proof is on these parties to establish that
they did not compel the surrogate mother. Further, the Bill does not define
‘relative’ for this purpose.
It is unclear why the Bill seeks to reverse the burden of proof from the
prosecution to the defendants.
Ordinarily, the burden of proof is on the prosecution to prove
that a certain wrongful act was committed by the defendant, and not on the
defendant to prove that he did not commit that act.
In some laws, where the burden of proof is reversed, there are typically some
circumstantial conditions which the prosecution needs to prove in order for the
court to presume that the defendant has committed the crime.
Storage of embryo or gamete for surrogacy not allowed
The Bill prohibits storage of embryos and gametes (unfertilised egg and sperm)
for the purpose of surrogacy. This differs from the current ICMR guidelines
(2005) which allow the storage of embryos for a period of five years. The
prohibition on storage of egg or sperm may have adverse health implications for
the intending mother.
Typically, for a surrogacy, the eggs are extracted from the intending mother and
are implanted in the surrogate mother’s uterus. The success rate of one
implantation is below 30%, therefore, multiple implantation attempts may be
To ensure availability of eggs for the multiple attempts, extra eggs are
extracted and stored. Note that the intending mother needs to undergo extensive
hormonal treatment for this extraction.
Repeated stimulation for extraction of eggs leads to the risk of Ovarian
Hyperstimulation Syndrome (OHSS) for the intending mother. In some rare cases,
OHSS may lead to complications like blood clots and kidney failure.
Views of Author
The Bill comes at the time when there was a huge demand for a legislation to
cover the subject of commercial surrogacy. The Bill focuses on prohibition of
potential exploitation of the surrogate mothers and children born through
surrogacy, and preventing the commercialising of surrogacy. The Bill provides
for a 10-month period of which would be considered as gestational period, so as
to ensure that no inconvenience is caused to the surrogate mother or to the
Disadvantages of the Bill
# While the advantages of the Bill are limited, the disadvantages of the
same are multifaceted. The right to life, under Article 21 of the Constitution
enshrine the right to reproductive autonomy, inclusive of the right to
procreation and parenthood. It is not the domain of the state to interfere with
such rights as the constitute the fundamental rights. It is the prerogative of
the persons to decide the mode of parenthood, that is, whether to have child
born naturally or by means of surrogacy.
# The Bill allows for surrogacy only for married couples and to that
extent, excludes the people belonging to the LGBTQ community, live-in couples,
and single, divorced or widowed parents, thereby, criminalising their exercise
of reproductive autonomy in this regard.
# Article 14 of the Constitution guarantees a fundamental right to
equality. The Bill restricts the limited and conditional surrogacy to married
Indian couples only and further disqualifies other persons, based on their
nationality, sexual orientation, marital status and/or age. This shall not stand
the equality test or the test of reasonable classification under the Article.
# The Bill contradicts the law of adoption in India. Section 7 and 8 of
the Hindu Adoption and Maintenance Act, 1956, and Section 57 of the Juvenile
Justice Act, 2015, allows conditional adoption for single and divorced parents.
# The Bill also limits the autonomy of married couples and potential
surrogates to a huge extent, by means of stringent conditions and requirements
of eligibility certificates. The heavy onus laying prerequisites such as
childlessness, five years of non-conception for intending parents, the surrogate
being a close relative, amongst others, are prone to criticisms
Besides this, the Bill blatantly ignores the fact that the women who opt for
being surrogate mothers are from economically vulnerable backgrounds and for
them, surrogacy is a source of livelihood. A complete ban on commercial
surrogacy deprives them of their livelihood and rather, expects them to undergo
reproductive labour without any compensation.