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Surrogacy: Ethical and Legal Issues

Dr. Avinash Kumar, Assistant Professor at School of Law, Christ Deemed to be University, Delhi NCR & Chief Editor, Nyayshastram.

Despite a Supreme Court of India ruling in 2008 which allows commercial surrogacy, the Lok Sabha on 05 August has passed the Surrogacy (Regulation) Bill 2019 which is pending in the Rajya Sabha prior to Presidential assent before it becomes a law.


Today women across the country rent their wombs for artificial insemination to earn around Rs three lakhs for such a service which changes their family fortunes. In a country characterised by low income and inequity how relevant is the introduction of surrogacy law?


Does India’s decision to adopt western surrogacy laws make sense? In the UK surrogacy is a punishable offence and banned in Germany, legal only in some US states.


However, surrogacy law is necessary to ensure the rights of the surrogate mother and the child through a contract that safeguards both parties involved in the technology-induced biological process. The contract would include details of payments, insurance coverage, post-birth medical cover to ensure the surrogate mother’s welfare.


The absence of appropriate law to regulate surrogacy has left the field wide open for unscrupulous elements to exploit poor women of reproductive age. The practice of surrogate motherhood is acceptable within family circles. However, the concept of commercial surrogacy has spawned a black market that constitutes hospitals and agents who develop linkages with poor women of reproductive age to act as surrogate mothers for a fee.


In 2002 the Indian Council of Medical Research specified guidelines for surrogacy or assisted reproductive technology which formalized the practice in the country. However, there was no legislative backing to these guidelines which led to over US $ two billion booming surrogacy industry.


The lack of legislation also led to other problems as evident from the Baby Manji case in 2008 when a Japanese couple commissioned a surrogate mother at Anand district, Gujarat to bear their child. Soon after the Japanese couple divorced each other and the mother refused to accept the newborn and the Government of India was left with the baby.


Eventually, the paternal grandparents got permission from their government to take the baby on behalf of their son to Japan. In 2008 the Supreme Court of India granted the Japanese grandparents to take their grandchild to Japan. To that extent, the Hon’ble Supreme Court decision opened the floodgates for commercial surrogacy which spawned a multi-billion-dollar surrogacy industry.


Today commercial surrogacy is estimated at over Rs 3000 crore per annum as the country is an international hub for trade. Gujarat has earned the epithet “Baby Factory of India”, because its Anand district also associated with the “White Revolution” or milk production, has emerged as the Surrogacy Capital of India. The surrogacy industry involves over 3000 medical clinics which includes: doctors, nurses, travel agents, hotels, restaurants and supermarkets. The sizeable NRI population of the Anand district has created the necessary ecosystem to foster commercial surrogacy.


The proposed surrogacy law will make a clear distinction between commercial and altruistic surrogacy that will end the exploitation of poor women who rent their womb. While the laws will allow the practice of altruistic surrogacy solely for family members, it will ban commercial surrogacy.


Another fallout of the surrogacy legislation process is that it would spawn a black market in the country with external dimensions which would involve foreigners. However, the Bill is flawed with several loopholes that policymakers have failed to take into account.

The Bill lacks reference to Non-Resident Indians (NRI) who may choose to have a baby in India. Also, there is no scope for single mothers, single fathers, unmarried couples and the LGBTQI community to become parents. Parenthood is a fundamental right that cannot be denied to anyone and therefore surrogacy remains a grey area. For instance, Bollywood celebrity Karan Johar is a single father thanks to surrogacy.


While the legislation would ban commercial surrogacy, the practise of altruistic surrogacy would be allowed to continue. Altruistic surrogacy is when a woman volunteers to bear a child for no financial gain. In countries where commercial surrogacy is banned, altruistic surrogacy has flourished with non-financial medical assistance.


The proposed legislation specifies that altruistic surrogacy could involve only family members. However, in the event that family members may not volunteer then it precludes the possibility of parenthood.


Another problem with the Bill is that couples could opt for surrogacy only if they are infertile for five years which is inconsistent with the WHO definition. The latter states that couples unable to produce a child after a year are categorised as infertile. Also, the Assisted Reproductive Technology (Regulation) Bill 2014 describes infertility as the inability to conceive after at least one year of unprotected sex.


Surrogacy is a function of supply and demand where both parties are happy with the outcome that involves the distribution of wealth in society and thereby helps to uplift economically weaker sections. In this context commercial surrogacy could be re-designated as “compensatory” surrogacy and viewed from a wider perspective of social happiness. Restriction of surrogacy solely to altruistic surrogacy which may not be a viable option could disturb marital harmony and distort the social fabric. Whether the proposed surrogacy laws would prove beneficial or regressive remains to the seen.