SHOULD SURROGATE MOTHER BE ALLOWED

With the help in the technology, medical sciences has been able to invent a number of
techniques through which a couple can procreate and have a child of their own. Surrogacy
has emerged as one such opportunity for childless couples. However, a surrogacy transactions
by its very nature is complex as it involves several aspects surroundings constitutional law,
family law, human rights law and contractual relationships. Thus, in this context, it has become
difficult for the prevalent legislations to deal with the surrogacy effectively. The burden now,
is on the judiciary to explore and develop this branch of law. But in doing so, the judiciary
cannot surpass its inherent limitations. Ultimately, it is for the legislature to bring certainty and
clarity in case of a surrogacy transaction by bringing in an effective legislation.

So the Author in this paper mainly discusses the Surrogacy Bill 2016 and its critics and the
constitutional aspects.
INTRODUCTION:

Being a parent of child is considered as one of the most esteemed social achievements. But
some cannot achieve this social necessity. Here comes the involvement of science and
technology, with a broader concept called Surrogacy.

Surrogacy is a well-known method of reproduction, whereby a woman agrees to give birth to

a child who she will not raise, but hand over to a contracted party. It is an arrangement or
agreement whereby a woman agrees to carry a pregnancy for another person or persons, who
will become the new born childs parents after birth.

The legal issue is that surrogacy is a very controversial practise around the world, raising
difficult moral, social and legal issues. As a result, the legal situation varies considerably. Many
countries do not have laws which specifically deal with surrogacy. Some countries ban
surrogacy outright, while others ban commercial surrogacy, while allowing altruistic surrogacy
(India is the best example to the last statement).

In India, Since 2002 Commercial Surrogacy is legal. Surrogacy in India is relatively low cost
and the legal environment is favourable. In 2008, the Supreme Court of India in Manjis case1
has held that commercial surrogacy is permitted in India with a direction to the Legislature to
pass an appropriate Law governing Surrogacy in India. At present the Surrogacy Contract
between the parties and the Assisted Reproductive Technique (ART) Clinics are the guidelines
in force.

The Law Commission of India has submitted the 228th Report on Need for Legislation to
Regulate Assistance Reproductive Technology Clinics as well as Right and Obligations of
parties to a Surrogacy.
THE SURROGACY (REGULATION) BILL, 2016

The Surrogacy (Regulation) Bill, 2016 was introduced by Minister of Health and Family
Welfare in Lok Sabha on November 21, 2016. The Bill defines surrogacy as a practise where

1
Baby Manji Yamada v Union of India 2008(13)JT150
a woman gives birth to a child for an intending couple and agrees to hand over the child after
the birth to the intending couple. The Health Minister stated that the bill was still open to
improvement, he also said that the clauses relating to the exploitation of women and
abandonment of surrogate children would not be compromised on.
There are both merits and demerits in the Surrogacy bill 2016:
IMPORTANT FEATURES OF THE BILL:
1. Surrogacy will not be allowed for
Homosexual Couples
Single parents
Couples in live-in relationships
Foreigners
Couples with children
2. Couple must be married for atleast 5 years.
3. Either one of couple must have proven infertility.
4. Only Indian Citizens; NRIs are also not included
5. Age of Couple: 23-50 for females and 26-55 for males
6. Women can be surrogates only once and a married couple can only have one surrogate
child.
7. The couple should employ an Altruistic Relative i.e. the surrogate mother should be a
relative who is sympathetic to the situation
8. Egg donation is banned.

Although the bill was made and passed with the intention of preventing this exploitation, some
of the clauses had both the medical community and the general public outraged. For one, the
necessity of only a relative being a surrogate mother. This limits the possibility of surrogacy to
a very large extent, especially since most time, surrogacy becomes the very last option a couple
chooses.

Even though adoption is always another choice, the adoption process is long and tedious. One
also needs to keep in mind, the stigma attached to adoption and the desire of true heir in Indian
societies. Even if the state wanted to curb surrogacy in order to facilitate adoption, in order to
stop the privileging of biological children; there needs to be a streamlining of adoption
procedures.

The idea of Altruistic Surrogacy expressed in the Bill, as has been reported, greatly limits
both potential surrogate mothers as well as couples wanting children, since women can become
surrogate only once and since couples who cannot find willing relatives have only one way out,
it is mostly adoption.

Additionally, limiting a womans surrogacy choice to only one time is in a large way limiting
the income of those who survive on this business. Again, it comes down to the issue of consent.
If a woman willingly consents to being a surrogate mother, is assured of a safe delivery and the
baby is assured of safe home, why should she be limited to only one surrogacy? After the
surrogacy industry boomed, a lot of women were dependent on the same. The issue here seems
to be that the woman is exploited for her body. And this too, is a legitimate issue. Just as in
case of sex work, when a woman is coerced into the business because she has no choice and
because she desperately needs the financial resources, it does not mean that she has fully
consented to job. It means that she has not been provided or is not able to find, alternate
employment to sustain herself. However, if she is contesting and is being paid the proper
amount, then this should not be an issue at all. Similarly, surrogacy laws should be set out in
such a way that there is full consent of the women in question. Here, instead of regulating the
ways and policies in which a womens exploitation is prevented, what the bill has done is
eliminate the idea entirely.

Additionally, egg donations are also banned, perhaps in order to curb child trafficking and
illegal surrogacy racket. However, again a blanket ban will not help in this situation. Policies
need to be structured and laws need to be implemented in such a way that the issue is resolved
without censoring the entire industry itself.

One of the most contentious points of the bill is its blatant ban on surrogacy rights of
homosexual couples. This is the first time that the governments transparent homophobia has
come out in the open. Sushma Swaraj very clearly stated that surrogacy for homosexuals is
against Indian Ethos, although homosexuality has been constantly mentioned in various
Indian texts. Now, even though this ban could be construed as a mere following of the law,
Section 377 against unnatural intercourse, this would only make sense if heterosexual
couples are allowed to get married; the explicit stating of the ban of surrogacy to homosexual
couples means two very saddening things: one, since this is the first time there has been an
explicit stating of homosexuality, this only reveals that the government is not even open to
the idea and the second , the government is almost stating that the community might as well
cease to exist in the formers eyes, since the latter have almost no rights with regard to their
sexuality.
However, sometimes we are quick to criticize policies without understanding the true extent of
the situation. The bill is extremely necessary in certain places in India. For Example, Gujarat,
where Baby Farms exist, i.e. underprivileged women are rounded up in scores and given out
a surrogates to potential parents. Here there is a paradox which the government needs to tackle:
women are being exploited as baby-carriers, but this is a source of income and if this
exploitation stops, then how will they survive? In this industry middle man play a large role
and take huge slices of the amounts paid by the parents and only about 25% ends up with the
actual surrogate mothers. And no although the bill will greatly benefit these women, where will
they go for wages?

Slowly but steadily, the government is proving true what was left unsaid all this while:
homophobia, discrimination towards non-heteronormative relationships and a paternalistic
enforcement of culture norms. The bill exhibits a lack of understanding of agency which ought
to be given to a woman; that a woman should be able to make decisions when the question is
with regard to her body. There is no need for the state to the big bother.
WHY THE SUROGACY BILL IS NECESSARY:
Adoption is an underutilised option that can not only give happiness to a childless couple but
also provide a future for an orphan child.

Surrogacy is when a women carries a baby for another couple and gives up the baby at birth.
In the past decade, commercial surrogacy has grown tremendously in India.

The Surrogacy (Regulation) Bill, 2016 proposes to regulate surrogacy in India by permitting it
as an option for couples who cannot naturally have children, have a lack of other assisted
reproductive technology options, are keen to have a biological child, and can find a surrogate
mother among their relatives. Altruistic Surrogacy, which means an arrangement without
transfer of funds as inducement, is currently practised in some centres in India, though the
majority of surrogacy centres in India, though the majority of surrogacy centres use women
who are paid for their services. The child born through surrogacy will have all the rights of a
biological child. Indian infertile couples between the ages of 23-50 years (women) and 26-55
(man) who have been married for five years and who do not have a surviving child will be
eligible for surrogacy. The surrogate mother should be a close relative of the intending couple
and between the ages of 25-35 year and shall act as a surrogate mother only once in her life
time. Implementation will be through the national and state surrogacy boards. Any
establishment found undertaking commercial surrogacy, abandoning the child, exploiting the
surrogate mother, selling or importing a human embryo shall be punishable with imprisonment
for a term not be less than 10 years and with a fine up to 10 lakhs. Registered surrogacy clinics
will have to maintain all records for a minimum period of 25 years.

While infertility is a growing problem in India, there are many different ways of making a
family. Adoption is an underutilised option that can not only give happiness to a childless
couple but also provide a home and a future for an orphan child.
The Surrogacy Bill has the following highlights:

Ban on commercial Surrogacy

Discontinuation of foreign citizens to get a child through an Indian surrogate mother.
Surrogacy is allowed for only heterosexual couples with proven infertility. Single
people or homosexual partners cannot have a baby through surrogacy.
Married couple who have a child naturally or through surrogacy cannot opt for
surrogacy to have another baby.
Married couple can go for surrogacy only after 5 years of their marriage. Also, the
female should be above 23 years of age and male should be more than 26 years of age.
 Couples cannot compensate the surrogate mother with financial benefits. Only the
medical bills of the surrogate mother can be paid by the couple.
Heterosexual couples with proven infertility can approach surrogacy only if the
surrogate mother is in close relation to the couple and shall not be paid for becoming a
surrogate mother.
Establishment of a National Surrogacy Board which will be run by the Health Ministry,
Surrogacy Boards of States and Union Territories to keep a strict check on all the
surrogacy cases done in fertility hospitals and clinics.

Starting a family is the most precious moment in a persons life. While some become parents
through natural means without any complications, some take years to have a baby of their own.
There are still a few, who are forever incapable of having a baby naturally. This is rescue,
which is often the last resort.

Surrogacy has delivered millions of chances to single parents, same-sex couples and married
couples with fertility issues to make their parenthood dream a reality, since decades. Through
surrogacy, couples are able to have a child who has their genetic links. I feel grateful to assisted
reproductive technology for bringing up such a wonderful alternative for infertile couples.

Sadly, the evolution of surrogacy has ended due to the introduction of the surrogacy bill in
India. The government of India should have amended the surrogacy laws and regulations to
ensure proper care of Indian Surrogate mothers during surrogacy treatment. Instead, they
banned surrogacy in India in the grab of morality and righteousness. It clearly seems that the
government is washing off their hands from taking actions for surrogate safety.

The surrogate Bill may seem to be beneficial for the surrogate mothers but what about the
couples who could have a baby only through surrogacy? Moreover, how many people have
relatives who are willing to become surrogate mothers to them?

It is clearly evident how the government ignored the condition of infertile couples today and
how surrogacy has helped millions if couples to become parent. I believe the surrogacy bill is
pointless and needs an urgent change.

SURROGACY BILL A CRITICAL ANALYSIS

INTRODUCTION:

India is considered as a major destination for foreigners for ART services particularly for
surrogacy practices. As a result, the surrogacy business is well-established in India, with an
estimated annual turnover of billion dollars. Despite this growing prominence of the Indian
surrogacy industry in recent years, it is strange but true that the surrogacy practises in India
remain largely unregulated. However, recently the Surrogacy (Regulation) Bill 2016 was
introduced by Minister of Health and Family Welfare in Lok Sabha and which propose to ban
commercial surrogacy in India.
CRITICAL APPRAISAL OF THE BILL:

The Surrogacy (Regulation) Bill, 2016 is considered as an important step towards the
regulation of surrogacy practices in India. The Bill focuses on preventing commercial
surrogacy, exploitation of surrogate mothers and child born through surrogacy. It also provides
a detailed regulatory framework for Surrogacy Clinics.
However this Bill raises several questions and concerns. They are as follows:
1. Ban on Commercial Surrogacy: In the expanding era of Human Rights jurisprudence, one
can trace the foundation of right to use surrogacy and be an intended couple as a part of
Right to Personal liberty Right to Procreation, Right to found a family and Right to
Privacy. The Right to reproduction and the Right to make Reproductive Choices are also
increasingly seen as a vital component of individual or personal autonomy. The ban on
commercial surrogacy is only due to the fact that there is a chance of exploitation of
surrogate mother. It is to be noted that there are various field of activates where there is a
chance for exploitation, the best way to prevent such exploitation is not prohibiting the
activity as such rather a strong regulation can take care of such problems. Therefore, the
ban on surrogacy on the ground of exploitation is irrational and is a direct encroachment
on the couples Right to Reproduction.

Further, the enjoyment of benefits of scientific and technological progress and its application
is recognized as a human right and is included in the Universal Declaration of Human Rights
(Article 27) and the International Covenant on Economic, Social and Cultural Rights
(Article 15).

Further ban on commercial surrogacy will adversely affect the interests of prospective
surrogate mothers. Most of the woman who agrees to act as a surrogate is due to their financial
necessity. The proposed ban on commercial surrogacy will prevent those women from acting
as a surrogate and thereby obtain the required money. It may force such women to do other
illegal acts such as prostitution, sex worker, theft etc for finding the money.

2. Close Relatives: The Bill specifies that, only a Close relative of intended couple can act
as a surrogate mother. However, the bill does not define the term Close relative. There
may be couples whose relatives may not be willing to act as a surrogate or such relatives
does not satisfy other eligibility conditions mentioned in the Bill. In such cases the
intended couples will not be able to enjoy the benefits of surrogacy procedures and to
satisfy their joy of having a child genetically related to them.

Further, when close relatives act as a surrogate mother and child will know about the facts of
surrogacy. It may cause family problems at a later stage between the surrogate child and the
surrogate mother. The knowledge about surrogacy and surrogate mother may also cause
psychological problems to surrogate child.

3. Waiting period of five years: It is to be noted that medical infertility is usually defined as
the inability to achieve pregnancy after a year or two trying to conceive a child through
regular intercourse. Hence, there is no reason to compel the intended couple to wait for a
period of five years for availing the surrogacy service.
4. Maternity Relief: The issue of maternity relief for intended couple as well as the surrogate
mother has already been discussed by different High Courts in India. However, the Bill is
silent about this issue.
5. Designer Baby: One of the major criticisms against surrogacy is that, it may be used to
produce children of desired sex and with desired characteristics, i.e., surrogacy may be
used for the creation of designer babies. However, the Bill is silent about this issue.
6. Certificate of Eligibility: The Bill specifies that in order to initiate a surrogacy procedure,
the surrogate mother and the couple intending to commission the surrogacy are required
to obtain certificates of eligibility from the relevant appropriate authorities at the centre or
state. However, the Bill does not specify a time period by which the appropriate authority
will grant these certificates. Further, the Bill does not specify a review or appeal procedure
in case the application for the certificate is rejected.
7. Rights of Intended Couples: In a surrogacy practise the following rights of the intended
couple have been identified couple have been identified as essential,
a) The right to select surrogate mother of their own choice subject to restrictions by the
state on grounds of public interest.
b) Right to impose restrictions upon surrogate mother as are necessary for the normal
development of the child
c) Right to information and visit surrogate mother during pregnancy
However, the Bill does not make any reference about these rights.

8. Breach of Surrogacy Contracts: The Bill is silent about the issue of a breach of terms and
conditions of surrogacy or intended couple during the surrogacy process or afterwards.
CONCLUSION:

The adoption of Surrogacy (Regulation) Bill, 2016 establishes a regulatory framework for good
surrogacy practices in India. However, the proposed ban imposed by the Bill on commercial
surrogacy and exclusion of foreign couples from availing surrogacy services are considered as
the biggest flaw of this Bill. The possibility of exploitation of surrogate woman and protection
of interests of surrogate and surrogate child could have been effectively ensured through proper
framework.

The Bill could have provide a framework for establishing an effective mechanism for ensuing
that surrogacy contracts are made properly by the parties and are not discriminatory or
adversely affecting the interests of the surrogate women. Further, the Bill could have
introduced a process of Vetting of Surrogacy Contracts i.e. every surrogacy contracts shall
be reviewed by an appropriate competent authority. It should be made mandatory for the parties
to submit their surrogacy contracts before the competent authority for vetting prior to the
initiation of surrogacy procedures.

Only those surrogacy contracts which have been reviewed and approved by the competent
authority shall be considered as valid and enforceable. The proposed National Surrogacy Board
and State Boards can easily implement the process of Vetting of surrogacy contracts. Thus
it is submitted that eth proposed ban on commercial surrogacy and restriction to avail surrogacy
by foreign couples is an improper way to deal with the issue.
The Surrogacy (Regulation) Bill 2016 has been mocked for being discriminatory, illiberal and
imposing the Bharatmata brand of values on citizens. The Bill seeks to regulate the Surrogacy
by prohibiting commercial surrogacy and barring certain persons such as unmarried couple,
single persons and same sex couples from availing of surrogacy services. It permits only
childless heterosexual couples who have been married for not less than 5 years to avail
surrogacy, only from a Close Relative.

The Bill has been criticised for interfering with the reproductive autonomy of citizens and
discriminating against those who adopt an alternative lifestyle. Another ground for attack is
interference with the right of women to eke out a living through surrogacy and violation of
the freedom of contract between the individuals to bear and supply a child through surrogacy.

The proposed law seeks to address two major ethical concerns: One, the practise of commercial
surrogacy by putting the human womb on hire and two, the need to safeguard the interests of
the unborn child. Renting the womb is akin to trading in human organs. There are serious
ethical concerns about using the womb, repeatedly, on a professional basis. It is argued that
surrogate mothers who come from impoverished circumstances are able, not only to sustain
themselves and their families by playing professional surrogates but receive better nutrition
and housing than they otherwise would. But the exploitation is hard to miss. A woman who
earns a few lakhs for every surrogate child she bears is the proverbial golden goose for her
family.
It is argued that most blood donors too donate blood for money, so why single out surrogacy?
Surrogacy is far more serious because it involves the creation of human life. Besides, the
mothers body undergoes an upheaval with every birth. If the surrogate mother requires a
caesarean section, she subjects herself to a major surgery she would not otherwise need.

Those who condemn the bill for restricting absolute reproductive rights fail to consider the
matter from the standpoint of the most important person in this process the unborn child. It
is the duty of the state to protect the rights of children, under what is known as parens patria.
The state must regulate surrogacy to safeguard the right of the children born through surrogacy.
The childs welfare overrides the reproductive autonomy of parents. When an abandoned child
is adopted, the adoptive parents undergo a long drawn screening process. Can that process be
much less stringent when a child is being into the world by a wholly artificial process?

The Bill compels us to debate the evolving notion of a family in contemporary society. What
constitutes a family? A social unit perhaps, where two adults in a long-term and committed
relationship are able to raise a child if that is the test, a couple married for some years should
pass the test. As for live-in couples, the level of commitment to the relationship may vastly
vary from case to case. Single parents may make very able parents but even when it comes to
adoption, they need to meet a more stringent test than a couple. The ultimate consideration is
a secure familial environment for the child, which should not be confused with the moral
judgement on the relationship.
We allowed the country to grow into an international surrogacy hub, delivering thousands of
surrogate babies to order across the world. But the irony should not be lost India is hardly
short on children. While encouraging artificial methods of child bearing serious ethical
concerns, can we remain oblivious to the reality that India is also home to the largest number
of children abandoned by their biological parents?.
THE GOVERNMENT MUST RETHINK THE SURROGACY BILL:

The Draft Bill appears to have been framed without addressing the actual concerns of the
surrogacy arrangements in India, and could do more harm than good by leading to the
exploitation of women.

For Robert Brown, all love begins and ends with motherhood; by which a woman plays the
gods. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now
again, science has forced us to alter our perspective of motherhood. It is no longer an indivisible
instinct of a mother to bear and bring up a child. With advancement of reproductive science,
now, on occasions, the bearer of the seed is a mere vessel, a nursery to sprout and the sapling
is soon transported to some other soil to grow on. Now, it is Laws turn to appreciate the
dichotomy of divine duty, the split motherhood.
The new surrogacy Bill 2016, passed by the union cabinet raises some serious legal and ethical
concerns. Its provisions, not yet in the public domain, prima facie suggest that the Bill, if
passed, may not per se be in consonance with the constitution.

The proposed law mostly in line with similar laws in other countries and the 228th report of the
Law Commission of India provides for a blanket ban on commercial surrogacy and only
permits altruistic surrogacy by a close relative, who must have given birth to a child.

This in itself a problematic as it could violate the womans fundamental right to livelihood in
this case though surrogacy as guaranteed under Article 21 of the constitution. Also, the
restriction that the surrogate must only be a Close relative of the commissioning parents may
result in ethical issues wherein the child and the surrogate develop an intimate bond, given that
both are known, accessible and related to each other. Moreover, if the surrogate wishes for her
name to remain undisclosed, how will her privacy be protected when the deal will be happening
within the family? Besides, the commissioning couple may face difficulties in finding a close
relative who will willingly render the surrogacy service. Prohibiting commercial surrogacy in
favour of surrogates from within the family may thereby turn surrogacy into a black market
business or lead to the victimization and coercion of subjugated and oppressed women in
marital homes to bear a child for their relative.

How does the government plan to tackle the issue of violation of a womans right to health and
bodily integrity that may arise as a result of this provision?

A further provision of the Bill allows surrogacy only to legally-married infertile Indian couples,
who have been married for atleast five years. This is an archaic provision that is reflective of
the patriarchal Indian mind-set that a woman, if fertile, should bear a child herself rather than
resort to scientific marvels that are otherwise available. This plausibly violates the Right to
Reproductive Autonomy as laid down in the case of B.K.Parthasarathi v. Government of
Andra Pradesh.

The decision about reproduction is essentially a part of a persons personal domain and should
be left to the couple. Also, the requirement of a five-year wait after marriage to enter into a
surrogacy arrangements and the age restrictions of the commissioning parents for the father to
be between 26 and 55 years and the mother to be between 23 and 50 do not set out a robust
intelligible differentia and rational nexus with the objects that are sought to be achieved.

Further, the decision to keep single men and women, LGBTs, divorced and judicially separated
couples, as well as live-in couples out of the purview of the draft Bill is retrograde.

The National Guidelines for Accreditation, Supervision and Regulation of Artificial

Reproductive Technology (ART) Clinics in India, 2005 issued by the Indian Council of
Medical Research, permits single women to use ART. In addition, the Hindu Adoption and
Maintenance Act, 1956 and The Juvenile Justice Act, 2015 permits conditional adoption for
single and divorced persons. There appears to be no element of prudence in allowing single
people to adopt while prohibiting them from opting for surrogacy.
Also, by virtue of the fact that being LGBT or being in a live-in relationship is not illegal per
se, disallowing the right to choice concerning surrogacy is a sheer violation of their Right to
Equality guaranteed under Article 14 and Right to Personal Liberty guaranteed under Article
21 of the Indian Constitution.

Another aspect of the Bill is that to enter into a surrogacy arrangements, it is a prerequisite for
the commissioning couple to not have any physically and mentally fit biological or adopted
children. This provision appears as an imposition by a police state on the rights of a couple to
procreate through the means of their choice.