Author: Ankur Srivastav
5th Year B.A. LL.B
Chandigarh University, Chandigarh
“If you have the power to make someone happy, do it. The world needs more of that.”
In India, surrogacy has always been a subject of debate because it has always been discussed in legal, social and ethical aspects. The term “surrogate” has its origin within the Latin word surrogate, which means that one woman works as an alternative to another woman. It is a method of Assisted Reproductive Technology (ART) on behalf of another man or woman. The surrogate provides for carrying a child through pregnancy and is then returned to the parents after giving birth to the child and in return will receive compensation as agreed earlier between both the parties. Historically, infertility has been seen as a problem in our society which is a quality of treatment. Surrogate motherhood provides some couples with the hope of being genetically related to only one of them. The surrogate motherhood has described an arrangement where a woman (surrogate mother) agrees to become pregnant and gives birth to a child for another person (commissioning parents) to whom the custody of the child after birth will be transferred directly.
Surrogacy is not a new concept in Indian society. This can be traced back to the examples of mythical surrogate mothers like Yashoda and Gandhari during the mythological era. As we know that India is a diversified country, there are many different religions. In ancient Hindu society there existed a practice known as Niyog Pratha, in which a woman who was childless because her husband was impotent, she was allowed to conceive through her brother-in-law. The child belonged to the couple and the brother-in-law had no claim on it. The Niyog Pratha was surrogate fatherhood. The scholars of Islam have declared a fatwa regarding surrogacy; it is considered illegal and immoral for a woman to carry a child of a man other than the husband. The Bible promotes the idea of surrogate motherhood. However, as far as the earlier law of Christians is concerned, this surrogacy promotes paternity.
In the case of Baby Manji Yamada v. Union of India, the court has described various forms of surrogacy, including traditional surrogacy, gestational surrogacy, altruistic surrogacy, and commercial surrogacy. In the last few decades, there has been a huge increase in generative techniques in India including innovative door assimilation techniques, in vitro fertilization techniques, embryo techniques, and more that have given hope to childless couples. On the one hand, while parents are happy to have such technology available and on the other hand, some communities are not in favour of practising surrogacy in India.
However, the industry of commercial surrogacy has remained largely uncontrolled and is considered the root cause of all the evils caused by surrogacy in India. Therefore, the 2020 Bill highlights that the law aims to curb the immoral practices of commercial surrogacy, including the exploitation of surrogate mothers.
The first legal hurdle faced by the surrogacy was in 1986 in a landmark judgement of Baby Manji Yamada v. Union of India, where Baby Manji Yamada was a child born to an Indian surrogate mother for a Japanese couple, who had separated just a month before the baby was born. The biological father, Ikufumi Yamada, wanted to take the child to Japan but there was no provision for such a case in the legal framework nor did the Japanese government allow him to bring the child back home. Finally, the Hon’ble Supreme Court of India intervened and the child was allowed to leave the country with his grandmother. This decision of the apex court gave an impact on the Government of India to implement a law regulating surrogacy.
India legalized commercial surrogacy in the year 2002, the immense growth of surrogacy in India led to an unsystematic growth of many commercial firms that claimed to feature in surrogacy law in guiding foreign tourists looking for an Indian mother to rent her womb for the blessing of the child. This covers the way for the establishment of various foreign companies in India, assisting people from all over the world and helping foreigners in paperwork related to surrogacy and assisting the child in obtaining a passport.
The Indian Council of Medical Research issued major guidelines to regulate the surrogacy in 2005, Firstly, the surrogate mother will be entitled to monetary compensation and the value of which will be decided by the couple and the surrogacy mutually. Secondly, the surrogate mother cannot donate her egg for surrogacy and must relinquish all parental rights related to the surrogate child. Afterwards, the 228th report of the Law Commission of India has recommended a ban on commercial surrogacy.
In 2016, a Surrogacy (Regulation) Bill was proposed in the parliament. The Bill provisioned the establishment of national and state-level surrogacy boards. Further, only heterosexual Indian couples, legally married for five years, could avail surrogacy, with precondition of proven fertility certified by the recognized medical practitioner. But the bill lapsed in the Lok Sabha due to some flaw in the laws.
Then, Surrogacy (Regulation) Bill, 2019 reintroduced and passed by the Lok Sabha which was referred to the Select Committee of Rajya Sabha. The latest Bill is incorporated with all the recommendations of the Selection Committee and the Union Cabinet has approved it as the Surrogacy (Regulation) Bill, 2020. The Bill, however, comes with a blanket ban on commercial surrogacy and limiting altruistic surrogacy. It bans on the overseas, foreigners, unmarried couples, single parents, live-in partners, and gay couples from commissioning surrogacy.
3. ANALYSIS OF BILL 2020
As there were some loopholes in the Surrogacy (Regulation) Bill 2019, the amendment was done in the form of Bill 202, The Surrogacy (Regulation) Bill, 2020 (Surrogacy Bill) is a moral, ethical and social piece that protects both the exploitation of a surrogate mother and the rights of a child born through surrogacy. The biggest feature of the bill is that it has continued to ban commercial surrogacy.
The Bill proposes to allow/limit altruistic moral surrogacy primarily to keep infertile Indian married couples between 23–50 years of age only for women and 26–55 for men. Couples must be citizens of India or non-resident Indians, persons of Indian origin or foreign citizens of India. Single women may not opt for surrogacy, but exceptions have been made for widows and divorcees. The 2020 Surrogacy Bill also provides that divorced and widowed women between the ages of 35 and 45 should be able to be a single commissioned guardian.
In the recent famous judgement by the Honorable Supreme Court of India in K S Puttaswamy v Union of India (2017) said that ‘it should also be kept in mind that the requirement is such that the stigma exceeds. Both parties may face administrative hurdles/bureaucratic hurdles from the board and any possible delay in the decision-making process will be added to the parties’ misery. The administrative hierarchy in enforcing the jurisdiction of the board cannot possibly ensure a high level of sensitivity throughout the process. When concerned with this aspect of the case, the parties are likely to face specific combative administrative apathy at the hands of the board’.
The couple must have a compulsory certificate and proof of eligibility (proven infertility) before proceeding with surrogacy. It also provides that aspiring couples should not leave a child born of surrogacy under any circumstances. The newly born child will be entitled to all the rights and entitlements that are available to a natural child and no sex selection can be made in the process.
As the clause ‘close relatives only’ was mentioned in the Surrogacy (Regulation) Bill, 2019, got removed and a new clause was added i.e. any surly ‘woman should be allowed to become a surrogate mother, provided all other requirements are met and the appropriate authority has approved the surrogacy. Offences under the bill include advertising or undertaking commercial surrogacy, selling or importing human embryos for surrogacy, exploiting a surrogate mother or surrogate child, and exposing the child. Penalties for such crimes attract imprisonment of up to Rs 10 lakh and imprisonment up to 10 years.
However, there are some criticisms of the bill, overall, the government’s recent move with a liberal approach or approach to women’s reproductive rights issues, whether it is medical termination of pregnancy, the Assisted Reproductive Technology Regulation Bill, or a surrogacy bill, all needed is welcome.
After being passed by Rajya Sabha this law would be a historic achievement for a country like India which has its socio-legal problems. Many people are using this step as a progressive measure as it will prevent the commercialization of exploitative behaviour. Further, the Bill fails to maintain a balance between regulations and rights and is not constitutionally valid as seen from the interpretation of Articles 14, 21, and 19 (1) (g), as well as the decision, which is given by Hon’ble Supreme Court. But this bill can bring about a change if the loopholes mentioned above will be dealt with, which would result in better implementation of this bill which can go a long way in protecting the rights of surrogate mothers.
The implementation of the law has always been a challenge in India and it will be interesting to see if law officials can devise any other mechanism to achieve the objective. However, it needs to be seen whether this Bill, unlike its predecessors, can become a proper act, and give India a legal framework to regulate the practice.
 Baby Manji Yamada v. Union of India (2008) 13 SCC 518.
 Dev, Surrogacy of India ,
 Ranjit Malhotra, Highlights and brief analysis of the Surrogacy (Regulation) Bill, 2020 and suggested potential safeguards
 Definition clauses, section 1(s), pp. 39 of the report.
 K S Puttaswamy v. Union of India (2017) 10 SCC 1
 Ayush Verma, Surrogacy (Regulation) Bill 2020: The Way Forward, 24 June’ 20 https://blog.ipleaders.in/surrogacy-regulation-bill-2020-way-forward/