SHOULD SURROGATE MOTHER BE ALLOWED: CRITICAL

ANALAYSIS OF SURROGACY BILL, 2016

“All love beings and with motherhood, by which a woman plays the God”

- Robert Brown
“When money is exchanged for pregnancy, some believe, surrogacy comes close to
organ-selling, or even baby-selling”
- Thomas Frank
R. Vigneshwaran1

ABSTRACT:

A surrogate mother is a woman who agrees to carry a baby of someone else and becomes
pregnant using some form of assisted reproductive technology. The commercial surrogacy
which was legalized in India in the year 2002 had to be banned when it gave rise to a booming
industry of foreign surrogacy requirements and fertility tourism. However, after the Union
Cabinet cleared the draft Surrogacy Regulation Bill 2016 on 24th of August 2016, it received
a severe backlash immediately being cited as discriminating and draconian with need for a
critical analysis on medico-legal, social and ethical grounds. The salient features of the draft
bill with critical analysis, Constitutional failure, and also medical defaults are being discussed
in this article.

Key Words: Constitutional Perspective, Discrimination, Altruistic Surrogacy, Ban on

Commercial Surrogacy.

NAME R. Vigneshwaran

YEAR & COURSE 3rd Year & B.A.LL.B (Hons)

COLLEGE Tamil Nadu National Law

School (TNNLS),
Tiruchirappalli
PHONE NUMBER + 91 99431-88088

EMAIL ID Vignesh.babu8002@gmail.com

1
R. Vigneshwaran, 3rd Year B.A.LL.B (Hons.), Tamil Nadu National Law School, Tiruchirappalli, Tamil Nadu
INTRODUCTION

Starting a family is the most precious moment in a person’s 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 a rescue,
which is often the last resort.

With the help in the technology, medical sciences have 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. The meaning of the word
“Surrogate” is “Deputy or Substitute”2. In this context 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, it has become difficult for the
prevalent legislations to deal with the surrogacy ideas effectively. The burden now, is on the
judiciary to explore and develop this branch of law. 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 article mainly discusses the “Surrogacy (Regulation) Bill 2016”
and its critics and the constitutional aspects. 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.

But sadly on other hand, the evolution of surrogacy has ended due to the introduction
of the surrogacy bill in India. The Surrogate Bill may seem to be beneficial for the surrogate
mothers on the surface of it but when you go deep into it, it makes the surrogate mother to think
her life to be a “beginning of a nightmare”, and then 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? Is still a pondering question till date.

2
Malini Karkal , “Surrogacy from a feminist perspective”, Indian Journal of Medical Science (IJME), Volume-
5, Issue-4(1997).
 The Author strongly believe, the Surrogacy Bill is pointless and needs an urgent change.
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 child’s parents after birth”.3

The legal issue is that surrogacy is a very controversial practise around the world,
raising difficult moral, social and legal issues. Many countries do not have laws which
specifically deal with surrogacy. Some countries bans it completely while others don’t.

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 Baby
Manji Yamada v Union of India 4 has held that commercial surrogacy is permitted in India with
a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. 5

Meanwhile, 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”6.

3
Prahalad, Surrogacy in India: Recent Trends, Volume-4, Issue-9. Journal of International Academic Research
for Multidisciplinary, (2016).
4
Baby Manji Yamada v Union of India 2008(13) JT150 (India).
5
Shaista Amin & Asma Rehman, Surrogacy in India and its legal and Ethical implications, Volume-2, Issue-4,
Journal of Internationals Academic Research for Multidisciplinary, (2014)
6
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)
ANALYSIS OF THE DRAFT SURROGACY (REGULATION) BILL, 2016

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 unregulated7.

The Draft Surrogacy (Regulation) Bill, 2016 aims to ban commercial surrogacy. 8 The
rationale behind banning surrogacy has been to prevent the women from ‘selling their wombs’.
However, the enactment of the proposed bill will rather lead to women ‘giving away their
wombs’ under harsh and prejudiced conditions to seedy clinics, the Bill seeks to register.9

Even if it is agreed that adoption is a better option and should be encouraged, still a
blanket ban should not be imposed by banning modes of Assisted Reproductive Technology.
The fundamental right to choose the mode of parenthood must be supreme and absolute, as
long as it does not violate other’s rights. As long as commercial surrogacy is practised in line
with the proposed Assisted Reproductive Technology Bill, 2014, it is not legally invalid
option.10

The reason why majority if surrogate mothers opt to be in this field is due to the
existence of extreme poverty and even if the ban is imposed, social and economic insecurities
will continue. Banning will further take away the right to livelihood of such women. Thus,
education and awareness in this respect should be the agenda, instead of banning commercial
surrogacy. On the financial aspect, the regulated commercial surrogacy can further generate
huge revenues through medical tourism, prove to be a support system for numerous childless
couples and at the same time help surrogate mothers with a considerable source of income.11

7
Aneesh V. Pillai, The Surrogacy (Regulation) Bill, 2016, (August 22, 2017, 6:57pm),
http://www.livelaw.in/surrogacy-regulation-bill-2016-critical-appraisal/
8
Vishnu Sharma, Surrogacy Bill gets the Cabinet Nod, The Hindu, August. 24 2016.
9
Katherine B. Lieber, Selling the Womb: Can the feminist Critique of Surrogacy be Answered, 68 IND LJ 112
(1992).
10
Indian Council of Medical Research, New Delhi 2006, Ethical Guidelines for Biomedical Research on Human
participants, (October, 2006), http://www.icmr.nic.in/ethical_guidelines.pdf
11
SAYANTANI DAS GUPTA & SHAMITA DAS DASGUPTA, GLOBALIZATION AND
TRANSNATIONAL SURROGACY IN INDIA: OUTSOURCING LIFE, (Lexington Books, New Delhi, 2014).
IMPORTANT FEATURES OF THE BILL

 Surrogacy will not be allowed for;

a) Homosexual Couples
b) Single parents
c) Couples in live-in relationships
d) Foreigners
e) Couples with children
 Couple must be married for atleast 5 years.
 Either one of couple must have proven infertility.
 Only Indian Citizens; NRIs are also not included.
 Age of Couple: 23-50 for females and 26-55 for males.
 Women can be surrogates only once and a married couple can only have one surrogate
child.
 The couple should employ an “Altruistic Relative”12 i.e. the surrogate mother should be a
relative who is sympathetic to the situation.
 Egg donation is banned.
 Ban on commercial Surrogacy.
 Married couple who have a child naturally or through surrogacy cannot opt for surrogacy
to have another baby.
 If there is any violation, shall be punishable with imprisonment for a term not be less than
10 years and with a fine up to 10 lakhs.

12
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 DRAFT BILL FAILS THE TEST OF CONSTITUTIONALITY

Even is the proposed Surrogacy (Regulation) Bill, 2016 is passed, it will fail the “Test of
legality”. In case a law treats equals unequally, it should justify the same to hold the “Test of
Constitutionality”. The recent surrogacy provisions imposed clearly violate Article 14 of the
Constitution of India. The Bill seeks to discriminate on the basis of marital status, age, sexual
orientation and nationality. A rational nexus needs to exist between the object of such law
and the actions employed through the means of such discriminations.13 There appears no
rational nexus between preventing a specific class of couple from exercising their surrogacy
rights and prevention of exploitation of women. Thus, the nexus being unreasonable, the
constitutionality is at stake.

Further, the Right to Life under Article 21 of the Constitution also includes the right to
procreation and parenthood under the right to reproductive autonomy. 14 The government
cannot interfere in the prerogative of people to choose the mode of parenthood and infertility
cannot be a made precondition to surrogacy.15 Moreover, qualifications like the requirement of
5 years of marriage before invoking surrogacy are arbitrary.16 What significance does only five
year limitation hold and why not four or six is or even ten years is the question that need to be
answered by all. In the landmark case of Maneka Gandhi v. Union of India17 strikes out any
room for arbitrariness in laws. This arbitrariness goes against the very principle of Rule of Law
enshrined under Article 14.18

Finally, the proposed bill at the same time contradicts the policies imposed by the Union
Ministry of Women and Child Development since it contradicts the legislative intentions of
Juvenile Justice (Care and Protection) Act, 2015, which allows foreign parents to adopt a child
irrespective of they being married or not19. If a person is found capable of adopting a child,
why he is found incapable of bearing a child through surrogacy is another question that the Bill
needs to answer.

13
Suchita Srivastava & Anr v. Chandigarh Administration (2009) 9 SCC 1 (India).
14
Ibid.
15
Annabelle Paloma Fahrah Lever, A democratic Conception of privacy, (August 22, 2017, 7:52pm),
http://alever.net/DOCS/A%20Democratic%20Conception%20of%20Privacy.pdf
16
Cabinet approves Introduction of the Surrogacy (Regulation) Bill, 2016, Press Information Bureau, (August 22,
2017, 7:55pm), http://pib.nic.in/newsite/PrintRelease.aspx?relid=149186
17
Maneka Gandhi v. Union of India 1978 SCR (2) 621. (India).
18
Bachan Sher Singh and Anr. v. State of Punjab and Ors, AIR 1982 SC 1325 (India)
19
Rajana kumara, Surrogate Motherhood- Ethical or Commercial, (August 22, 2017, 8:16pm)
http://wcd.nic.in/Schemes/research/dtd14092015/DelhiMumbaiSurrogacystudyFinalreport.pdf
CRITICAL APPRAISAL OF THE BILL

Although the Bill was made and passed with the intention of preventing exploitations, some of
the clauses seems outraged when it is seen in practical. For one, the necessity of only a relative
being a surrogate mother i.e. Altruistic Surrogacy. This limits the possibility of surrogacy to a
very large extent, especially since most time, surrogacy becomes the very last option a couple
chooses.

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.20

The Draft Surrogacy (Regulation) Bill, 2016 tabled by the Union cabinet involves a
host of serious ethical and legality concerns which are majorly in accordance with comparable
laws in other countries and Law Commission of India’s 228th Report. By allowing only
altruistic surrogacy through close relatives.21 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 in which they can’t make
out their genetically have child.

In case, the object of the bill was protecting women from instances of exploitation
arising from such surrogacy arrangements is good enough, it needs to be answered how non-
payment for the same result in non-exploitation. Defining exploitation subject to exchange of
money is a myopic way of looking at the social reality. There is no guarantee that altruistic
surrogate mother will not being forced and coerced into bearing a child.22

20
Madhavi Goradia Divan, For the Mother and Child, (August 22, 2017, 8:15pm)
http://eg4.nic.in/law/dfiles/news/news_29.pdf
21
Supra note 16
22
Pikee Saxena, Archana Mishra & Sonia Malik, Surrogacy: Ethical and Legal Issues IJCM 211, 213 (2012)
 The advantage of the present situation is the fact that once surrogate mother is paid dues
and the baby is delivered, the commissioning parents can keep her out of their lives for good.
There will never be any question of bonding between the child and its birth mother since they
hardly get any time together. However, this bill proposes insistence on altruistic surrogacy only
through close relatives which will ensure that the child and its birth mother remain in close
proximity and in the same sphere all their lives. This will create a complex situation fraught
with emotional and ethical dilemmas. Thus, it is better if there is a certain amount of anonymity
in such procedures.23

The concept of Altruistic Surrogacy proposed in the Bill greatly limits the potential
surrogate mothers as well as couples wanting children: Since the women can become surrogates
only one way out, which is adoption. If compared to a host of other nations, altruistic surrogacy
is permitted however it is not constrained to close relatives and one-time pregnancy. Moreover,
constraining a woman’s surrogacy decisions to only one time is largely restricting the salary of
the woman who on this business survive. Eventually, it comes down to the issue of consent. In
the event that a lady wilfully agrees to being a surrogate mother, is given assure of safe delivery
and the baby is guaranteed of a safe home, why should she be limited to only one surrogacy?
Post Surrogacy-industry boom, a lot of women were dependent on the same, which is not
ethically and morally wrong. The issue Bill seeks to address here is that the woman will be
‘Exploited’ for her body. However, in case she is already consenting and is being paid the
proper amount, then the issue does not arise, through the draft bill, rather than regulating the
ways and policies to prevent women’s exploitation, the Bill eradicated the idea to its entirety.24

The exploitation which results has another dimension attached to it. It can be emotional,
arise from the factors relating to informed consent, the dignity of reproductive labour and
psychological well-being of parties involved in this process.25

Additionally, limiting a woman’s 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 home26, why should she be limited to only one

23
Surrogacy Laws India, Legality of Surrogacy (August 22, 2017, 9:02pm)
http://surrogacylawsindia.com/legality.php?id=%207andmenu_id=71
24
Pawan Kumar, Surrogacy and Womens Right to Health in India: Issues and Perspective, 65 IJPH 57 (2013).
25
ibid
26
Ankit Sourav Sahoo, Legality of Commercialisation of Surrogacy in India and Social Implications, Volume-4,
Issue-7(2015).
surrogacy? It is also evident from the constitutional perspective that 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).

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 surrogacy27. 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 question28. Here, instead of
regulating the ways and policies in which a women’s exploitation is prevented, what the bill
has done is eliminate the idea entirely.

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.

When it is peeped through the Constitutional perspective it could violate the woman’s
fundamental “Right to Livelihood” guaranteed under Article 21 of the Constitution29.
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.30 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.

27
Jane Stoll, Surrogacy Arrangements and Legal Parenthood, ISBN 978-91-506-2369-7 available at
http://www.diva-portal.org/smash/get/diva2:649875/FULLTEXT01.pdf
28
Malavika Ravi, Analysis of the Surrogacy Regulation Bill 2016, (August 22, 2017, 9:25pm)
https://feminisminindia.com/2016/08/31/critical-analysis-surrogacy-regulation-bill-2016/
29
Neep Jani, Article 21 of Constitution of India and Right to Livelihood, Volume-2, Issue- 2. Voice-of-Research
(2013).
30
Chitra P.George, The Government Must rethink the Surrogacy Bill, (August 22, 2017, 9:42pm)
https://thewire.in/64656/why-the-government-needs-to-rethink-the-surrogacy-bill/
How does the government plan to tackle the issue of violation of a woman’s 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 Pradesh31.

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.

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”32 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.

31
B.K.Parthasarathi v. Government of Andra Pradesh 1999(5) ALT 715 (India)
32
Alok Prasanna Kumar, Right to Choose as a Fundamental Right, Economic&Political Weekly, Volume-51,
Issue No-43(2016)
CONCLUSION

“Little Souls find their way to you, whether they are from your womb or someone else’s”

- Sheryl Crow

Surrogacy has exceedingly complex implications in social, biological, cultural and

psychological forms. Presently, there exists no unanimity upon an ideal surrogacy
arrangements and loopholes exist in both commercial and altruistic forms. While both of these
practises require extraordinary immense regulation, the plausibility of implementing the
cumbersome regulations need a healthy dose of realism in the Indian context. Imposing a
blanket ban does not address the actual need of the time and will create high possibilities
driving the surrogacy market underground through black marketing, thus marketing it worse
for all the stakeholders involved in the process. Surrogacy as a mode of bearing children cannot
be denied from the homosexual community and unrest in the homosexual community in
evident. In the end, the draft Bill clearly violates Article 14 and Article 21 of the Constitution
of India and fails both the test of Constitutionality and Rule of Law.

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.

Therefore, in the view of Author, the Surrogate mother should be allowed in India.

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