Written by Jalaj Agarwal
Senior Editor at Law & Order
Fifth Year, B.A. LLB. Symbiosis Law School, Pune.
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
Surrogacy is a method or practice whereby a woman agrees to carry out pregnancy for another person or persons, who will become the newborn child's parent(s) after birth. It is thus regarded as a contract in which a woman carries a baby for another couple. Due to a lack of any legal framework for regulating surrogacy in India, there have been numerous instances of exploitation of the surrogate mother as well as of honest couples intending surrogacy. For this reason, Indian legislators have been constantly trying to come up with a proper law for regulating such activities in the country but without any actual success.
However, recently the Surrogacy (Regulation) Bill 2020 was introduced and passed by the Rajya Sabha to achieve several similar objectives. This article discusses the new features of the Surrogacy Bill 2020 and the possible loopholes present in the bill.
Keywords: Surrogacy, Surrogate mothers, Infertility
Surrogacy is regarded as a practice or method in which another woman agrees to carry out pregnancy for another person(s) who will be the newborn’s parent(s). Often, in order to respond to the stereotypical pressures imposed by society to have a baby to ‘complete the family’, couples with fertility or other issues rely on processes such as surrogacy. Surrogacy allows such couples to avail the help of another person, who lends their physical body to carry out the process of childbirth for them. In recent times, India has emerged as the global hub for surrogacy for couples who are incapable of having a child, attracting not only Indians but also people from other countries. As a result of this, there have been various cases of unethical practices leading to the exploitation of surrogate mothers and honest participants, the abandonment of children born out of surrogacy and the trafficking of human embryos and gametes due to the lack of proper regulation for such activities in India. Even the Law Commission of India in its 228th Report has recommended an urgent need for proper law for the regulation of surrogacy in the country.
The Surrogacy (Regulation) Bill 2019 was introduced in Lok Sabha on 15 July 2019, and it was passed on 5 August 2019. In the Rajya Sabha, the Bill was referred to a Select Committee headed by Shri Bhupendra Yadav for examination and consultation on 21 November 2019. The committee submitted its report on 5 February 2020. The committee, upon considering the views/suggestions of the concerned stakeholders, gave 15 recommendations in total which were all incorporated into the 2020 bill. The amended bill is thus, a reformed version of the draft legislation which was passed by Lok Sabha in August 2019.
Importance Changes brought under the 2020 Bill
There have several significant and long overdue changes brought in by the 2020 bill, which are:
● The bill now allows only Altruistic Surrogacy in India. Commercial Surrogacy has been completely banned, meaning that the surrogate mother would not receive any financial compensation/awards for her pregnancy except for the necessary medical expenses.
● The present bill also amended the definition of “infertility”, which was previously defined as the inability to conceive after five years of unprotected intercourse. The committee was of the view that five years is a long period for a couple to wait for conceiving a child, and regarded it as unreasonable and against the objective of the act.
● This bill has also widened the scope of surrogacy practices in the country (which were earlier limited to only “intended couples”) by extending this practice to single parents, divorced women and widows.
● One of the most significant features of the new bill is that it recognizes any “willing mother” to be the surrogate mother and abolishes the prior prerequisite for her to be a close relative. The committee did so because it would restrict the availability of surrogate mothers affecting the people in need, as in today’s time families are becoming smaller and making it harder for couples to find somebody close enough among their relatives to be a surrogate mother.
● The new bill also provides for the constitution of the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), with a view of advising the government on policy matters relating to surrogacy, laying down the code of conduct of surrogacy clinics; and supervising their functioning.
● With a view to counter the high risks of medical complications and health issues faced by surrogate mothers even after the pregnancy, insurance coverage for surrogate mothers has now been increased from 16 months to 36 months, other than the necessary monetary expenses during pregnancy.
● It further seeks to establish surrogate clinics for mothers at the district level, with a female medical practitioner appointed full-time to ensure the benefits of these techniques can reach remote areas, and to ensure that people are more accepting of such practices.
Thus, these provisions will help in reducing prevalent unethical practices, exploitation of poor or illiterate women, and abandonment of children. It can further help in dismantling rackets involved in trafficking in human embryos and removing unnecessary middlemen and agencies from the scene.
Although the bill is a landmark step taken by the government to regulate surrogacy and uplift the rights of the women, there are certain potential loopholes present in the new bill:
● The proposed Bill excludes homosexuals to benefit from the process of surrogacy even though Indian courts have decriminalized same-sex marriages.
● The Supreme Court had decided in the landmark judgment of Khushboo v. Kanniammal, that a live-in relationship is a fundamental right and comes within the ambit of Article 21 of the Constitution of India which ensures right to life to every person. The Court further held that any live-in relationship was permissible and the act of two majors living together could not be considered illegal or unlawful. By way of this decision, the Court put live-in relationships at par with marriages and children born out of this relationship as legitimate children. However, the proposed Bill limits the option of surrogacy to live-in couples, thus providing a major contradiction with the Court’s position on live-in relationships.
● The bill has taken a positive step forward by proposing to ban all forms of commercial surrogacy and removing the prerequisite for the surrogate mother to be a close relative. This strict regulation may turn the goals set by the bill to be achieved upside down and make it an issue of morals and ethics. The proposed provisions in the bill might increase the chances of unethical practices and corruption as no woman would be willing to carry another couple’s baby without any monetary compensation.
Infertility is generally regarded as a social stigma in India. It often inflicts agony and trauma in the life of an individual for not being able to achieve parenthood for no fault of his or her own and often has devastating effects on such individuals. With the immense advances in the field of medical science, infertility can now be neglected using the different types of Assisted Reproductive Technologies available such as Surrogacy. The Surrogacy Regulation Bill 2020 thus is a landmark achievement on several grounds for a country like India which has its own socio-legal problems. The legislators have done a good job by removing several discrepancies present in the previous bills, but as mentioned above there are still certain shortfalls in the new bill. An overall review of the scenario suggests that surrogacy is a beneficial scientific technique that can be used to fulfill the void in the life of desired couples, effective legal provisions should be made in order to prevent its misuse in any manner. The only thing to look forward to now is whether or not this Bill, unlike its predecessors, could become a proper Act and finally give India a much needed legal framework to regulate surrogacy practices.
Jasdeep Kaur, Surrogacy: A Paradox regarding Motherhood rights with Special Reference to India, Vol. II No.1, THE LEGAL ANALYST 114, 113-121 (2012). Kusum Jain, Surrogate Motherhood: Some Legal and Moral Problems in Bio-Ethics, Vol 25 Issue 4, JOURNAL OF INDIAN LAW INSTITUTE 547, 546-558 (1983). The Law Commission of India, 228th Report on Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights and Obligations of Parties to a Surrogacy, (2009) http://lawcommissionofindia.nic.in/reports/report228.pdf  Navtej Singh Johar v. Union of India, (2018) 10 SCALE. 386 (India).  Khushboo v. Kanniammal, (2010) 5 S.C.C. 600 (India).
1. The Surrogacy (Regulation) Bill, 2019; http://126.96.36.199/committee_web/BillFile/Bill/70/137/156C%20of%202019_2019_12_12.pdf
2. The Law Commission of India, 228th Report on Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights and Obligations of Parties to a Surrogacy, (August 2009)
3. Anu Kumar & Pawanet., Surrogacy and Women’s Right to Health in India: Issues and Perspective, INDIAN J. OF PUBLIC HEALTH, Vol. 57, Issue 2, , pp.65-70.(April-June, 2013).
4. Jasdeep Kaur, Surrogacy: A Paradox regarding Motherhood rights with Special Reference to India, Vol. II No.1, THE LEGAL ANALYST (113 to 121) at 114 (2012).
5. Kusum Jain, Surrogate Motherhood: Some Legal and Moral Problems in Bio-Ethics, Vol 25 Issue 4, J. OF INDIAN LAW INSTITUTE( 546 to 558) at 547 (1983).
6. Cabinet approves surrogacy Bill, THE HINDU, February 26, 2020
7. Surrogacy bill to benefit widows & divorcees too, The Times of India, February 27, 2020
8. Surrogacy Bill is a big step forward, Deccan Herald, March 06, 2020, https://www.deccanherald.com/opinion/in-perspective/surrogacy-bill-is-a-big-step-forward-810973.html