Surrogacy Laws in India

Introduction:

Given that India has adapted many Western ideologies, it would be safe to say that these ideologies have compelled India to alter its thinking. One of these ideologies would be that of surrogacy. Aware that Indians have a strong desire to continue their bloodline, this method of reproduction provided many young women a chance to experience motherhood. However, this idea of reproduction brings along many factors that need to be taken into consideration before being implemented. The legal binding around the idea of surrogacy is thin. To understand this concept better one should unwrap the definition of surrogacy. According to the Surrogacy (Regulation) Bill 2019 the word surrogacy refers to ‘a practice whereby one woman bears and gives birth to a child for an intending couple with the ‘purpose of delivering the child to the actual parents after the birth.’.¹ This bill was then converted into an Act known as the Surrogacy (Regulation) Act 2021. 

The Surrogacy (Regulation) Act 2021:Taking a deeper dive into the laws related to surrogacy in India, the surrogacy (regulation) Act lays down various parameters that one must adhere to while following this process. The act defines various words that many would hold important when this option of reproduction is chosen. Words like ‘couple’, ‘altruistic surrogacy’, ‘commercial surrogacy’, ‘embryo’, ‘foetus’ and ‘surrogate mother’ are some essential words from the act. These words lay down the foundation of this act. As mentioned, there are two kinds of surrogacy. Altruistic surrogacy refers to ‘the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed 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;²’ and commercial surrogacy refers to  ‘surrogacy services where the surrogate is paid by the intending couple for her services beyond the established medical services.³. To put in simple terms, the only difference one might infer between these two procedures is that the surrogate receives money as compensation. However, recently when the world was hit with the covid 19 pandemic, commercial surrogacy was banned. Anyone caught practicing it was punishable with a jail term of ten years and a fine up to rupees 10 lakh. The law allows only altruistic surrogacy where no exchanges of money is involved and the surrogate mother is genetically related to the couple seeking the child. However, this decision is debatable. There have been many articles published by many experienced writers, who voice their concerns about the ban on commercial surrogacy.

Foreign writers believe that the appeal of surrogacy in India is more financial, this might be true to some extent. If compared to the practice of surrogacy in the United States of America its practice adds up to about $70,000. In India the practice costs one-seventh of the price tag. As numbers of English-speaking individuals swell in India the price for a surrogacy procedure also sky-rockets. With such big money on the table, it has attracted many women from all regions of the Indian subcontinent ready to provide infertile couples their “womb for rent”.⁴ In India until recently commercial surrogacy was the only kind which was preferred amongst people. However, things took a dark turn when young women were exploited and forced to be surrogates. To curb and possibly stop this issue, the government of India actively banned commercial surrogacy. However, the following illustrates how the laws for surrogacy was established in India through this case. Before this case the practice of commercial surrogacy in India flourished and was known to people worldwide. This case caused surrogacy to become more legally equipped. Baby Manji Yamada vs Union of India & Anr⁵,  is an important case, to discuss the facts of this case in brevity, (i) a Japanese couple arrived to Gujrat, India in November 2007 to look for a surrogate. (ii) the father of the child provided his sperm while the egg donor was an unknown Indian woman. (iii) Unfortunately, in 2008 the couple divorced and the wife refused to accept the child as she wasn’t legally or biologically bound to it. (iv) The father of the child demanded custody of the child but due to this visa expiration the father was required to return to Japan. (v) In January 2008 the child was born in Gujrat which caused the child’s paternal grandmother to come to India to take care of the child. (vi) A birth certificate was made stating the father’s name. (vii) In mid-August, an NGO, filed a Division Bench Habeas Corpus Writ Petition. (viii) The writ petition questioned the legality of surrogacy in India. It accused the government of having a unlawful surrogacy industry.

As a result, the Division Bench of the High Court of Rajasthan issued specific directions on the custody/production of the child, contested judgment.⁶

Loopholes and Challenges within the Act:

No bill, act or law is perfect they always have loopholes, many acts many leave many important questions unanswered. This paper will be unwrapping one the major loopholes and challenges and that would be:

Exclusion of LGBTQIA individuals:

One very important factor this act overlooks is that there is no mention of transgender individuals anywhere in the act. The Act specifically uses the word “woman”. This act does not consider individuals who have transitioned or our transitioning. Looking through the emotional lens it seems to be quite unfair that the law refuses to acknowledge that transgender individuals would also like to have children. The act specifically implies heterosexual couples which sparks the idea that this loophole also violates the right to equality and contradicts the Navtej Singh Johar vs Union of India case. This is because this case decriminalised section 377 and protected the rights of the queer community.⁷ The law is contradicting its own judgement. Due to this exclusion the act itself violates various human rights instruments. Some would be article 16 of the UDHR which protects the rights of an individual to get married and start a family.

There is no doubt that the surrogacy law in India is proven to be discriminatory, the act specifies that the couple should be “married” and have “medical indications.” This causes a question to arise that being why should only married couples have benefit to this facility? Such loopholes should be filled and there should be amendments to the act where all individuals are treated and included equally.

Ban on commercial surrogacy

With the ban of commercial surrogacy, altruistic surrogacy would seem an easier and viable option for many people. However, people fail to understand that with this type of surrogacy (altruistic) within the family would be proven to be flawed. This is because with the vivid idea of patriarchal control over the woman’s reproductive choices, concepts, such as right to reproduction and privacy are thrown out the window. By banning commercial surrogacy as a whole, the act indirectly lends an olive branch to individuals who exploit women within their family to reproduce for the sake of money. This in turn violates the supreme court judgement Suchita Srivastava vs Chandigarh Administration⁸ in accordance to this case, right to reproductive choice of a woman flows from the right to liberty under article 21 of the constitution. 

Remedy measures: Lifting the Ban on Commercial Surrogacy

The most effective remedy measure would be to reintroduce commercial surrogacy as it would help the country financially, and curb women exploitation. Furthermore, this type of surrogacy would help low-income women to earn substantially well to take care of their families. With the ban on commercial surrogacy women trafficking solely for the person of baby making could also pose as a threat. Seeing surrogacy as a source of labour certain individuals could force young women to pose as baby making machines.⁹ With the reintroduction of commercial surrogacy, society may not look as surrogates as women doing “dirty” work. Some may think they are “angels from heaven” full-filling dreams of making couples unable to have a baby. The thoughts on surrogacy in India can be divided, as explained above.¹⁰

As we know that India doesn’t have any concrete law for surrogacy. Therefore, it is essential that this industry should be brought to light and society should be aware of the laws this process of carries. Commercial surrogacy should be operational in India along with altruistic surrogacy so that this industry can flourish with appropriate rules laid down by the government of India. Foreign couple come to India looking for healthy young women to carry their child which is quite applaudable. This is because foreign countries see Indian women as strong and worthy enough to let her carry a child for them. Commercial surrogacy, if introduced, can help a great deal as foreign couples arrive looking for a womb to rent.

Author’s opinion

Surrogacy in India as a whole can prove be a profiting industry if it is governed correctly with appropriate laws. With some amendments, the act should expand its boundaries and include all genders. Furthermore, the concept of commercial surrogacy in India should be advocated to me move forward and altruistic surrogacy should be controlled. This is because if the surrogate is within the family there are chances that she is forced or exploited which would be overlooked by family members and society as a whole. Surrogacy can be a sensitive topic due to the emotional attachments it comes with therefore, a stable law would aid in many ways to shape the surrogacy industry.

Conclusion

The paper highlights the broken law on surrogacy and the loopholes it has. Certain provisions under the surrogacy act do require amendments. Surrogacy in India is an unspoken industry which is done under wraps. With the help of strong laws the surrogacy law can legally flourish.

References:

1. Chang M, ‘Womb for Rent: India’s Commercial Surrogacy’ (2009) vol.31 Harvard International Review< https://www.jstor.org/stable/42763262> accessed 29 November 2023
2. Kapoor N, ‘Surrogacy in India: The Need for inclusive Laws (Oxford Human Rights Hub) < https://ohrh.law.ox.ac.uk/surrogacy-in-india-the-need-for-inclusive-laws/#:~:text=The%20major%20flaw%20in%20the,Article%2014%20of%20the%20Constitution.>
3.  Pande A, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’ (2010) Vol. 35 Signs < https://doi.org/10.1086/651043> accessed29 November 2023
4. Pande A, ‘At Least I Am Not Sleeping with Anyone’ (2010) Vol. 36 Feminist Studies < https://www.jstor.org/stable/27919102> accessed 29 November 2023
5. Baby Manji Yamada vs Union of India & Anr (2008) 13 SCC 518
6. Suchita Srivastava and Anr Vs Chandigarh Administration (2009) 9 SCC 1

1. Surrogacy (Regulation) Act 2021. ↩︎
2. Surrogacy (Regulation) Act 2021. ↩︎
3. Surrogacy (Regulation) Act 2021. ↩︎
4.  Mina Chang, ‘Womb for Rent: India’s Commercial Surrogacy’ (2009) vol.31 Harvard International Review< https://www.jstor.org/stable/42763262> accessed 29 November 2023 ↩︎
5. Baby Manji Yamada vs Union of India & Anr (2008) 13 SCC 518 ↩︎
6. Baby Manji Yamada vs Union of India & Anr (2008) 13 SCC 518
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7. Nishka Kapoor, ‘Surrogacy in India: The Need for inclusive Laws (Oxford Human Rights Hub) < https://ohrh.law.ox.ac.uk/surrogacy-in-india-the-need-for-inclusive-laws/#:~:text=The%20major%20flaw%20in%20the,Article%2014%20of%20the%20Constitution.> 
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8.  Suchita Srivastava and Anr Vs Chandigarh Administration (2009) 9 SCC 1 ↩︎
9. Amrita Pande, ‘Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker’ (2010) Vol. 35 Signs < https://doi.org/10.1086/651043> accessed29 November 2023 ↩︎
10. Amrita Pande, ‘At Least I Am Not Sleeping with Anyone’ (2010) Vol. 36 Feminist Studies < https://www.jstor.org/stable/27919102> accessed 29 November 2023
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