SURROGACY IN INDIA: A CRITICAL APPRAISAL

India legalised surrogacy in the year 2002 and within a decade, the country became a multi-
million-dollar industry- a mixed bag for childless couples amidst the allegations of
exploitation of surrogates, complex legal procedures and improper regulation of surrogacy
contracts. Recently, The Surrogacy (regulation) act, 2021 has come into force after including
all the recommendations by the Rajya Sabha select committee. The act is a reformed version
of the draft legislation passed in 2019 which was referred to the select committee. The
surrogacy(regulation) act, 2021 bans commercial surrogacy and only allows altruistic
surrogacy to curb exploitation for commercial gains.

BACKGROUND

India has suffered from the commercialisation of surrogacy for a long time. In ignorance of
the guidelines by the Indian Council for Medical Research (ICMR), there was a rampant
process of unauthorised commercial surrogacy. Although the commercial surrogacy was
legalised in India, the lack of strong and stringent statutory legislation led surrogate women
face several hardships such as exploitation of women, poor living and unethical treatments.
Only after the controversial case of Baby Manji Yamada v. Union of India1, the darker side of
the commercial surrogacy turned towards public scrutiny. With the passage of time,
surrogacy has gained massive importance amongst childless couples.

SURROGACY REGULATIONS IN INDIA

India has witnessed several phases in the regulation of surrogacy. The National Standards for
Accreditation, Supervision, and Regulation of ART Clinics in India, which were established
in 2005, were the first set of guidelines regarding surrogacy in India. However, it was not
specifically about surrogacy, it did give some fundamental rules for Assisted Reproductive
Treatment (ART). The 228th law commission report2 on surrogacy was a Suo motu action to
deal with the anarchic situation that prevailed and with an aim to protect the interests of both
the parties. With this, a new bill was tabled in 2010 but there were numerous amendments
made to this bill over several years.

1
Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518
2
228th law commission report
The surrogacy (regulation) bill,2016 was introduced and passed by Lok Sabha but rejected by
the upper house of the Parliament with a suggestion to examine its provisions again.
However, in 2019 the bill was again introduced without any due process on the given
suggestions. The bill banned commercial surrogacy and only allowed altruistic surrogacy
which took away the right of surrogates to gain monetary compensation for her services. This
showcased the traditional societal value of a woman’s economic worth. The bill was not
passed in the Rajya Sabha again and a select committee was formed to scrutinise the bill and
recommend changes to the legislation according to the needs of the present society.

The surrogacy (regulation) act,2021 has significant improvements and various old clauses
have been discarded. However, there are still controversial and violative clauses which
challenge the constitutional validity of the said act.

CRITICAL SCRUTINY OF SURROGACY (REGULATION) ACT, 2021

In India, the major obstacle stands between the maintenance of balance between both the
parties. On one hand, it is the right of state to prevent the exploitation of surrogate mothers
and protect the rights of the unborn child, while on the other side, the question of
reproductive choices and right to have a family of the intended parents stand. India still
struggles to keep a balance between these two conflicting interests.

Articles 14 and 21 of the constitution are infringed by the surrogacy (regulation) act of 2021.
It forbids same-sex couples from having a child through surrogacy. By virtue of being the
genetic or biological parent of a child produced through surrogacy, a single or gay parent can
be regarded the custodial parent, according to the 228th law commission report. The Supreme
Court ruled in Suchita Srivastva & Anr. v. Chandigarh Administration3 that "a woman's right
to make reproductive choices" is a dimension of "personal liberty" as defined by Article 21 of
the Constitution. The act tries to deprive plenty of perfectly suitable individuals who are well
within their rights to demand surrogacy services by specifying narrow eligibility standards.

According to the Universal Declaration of Human Rights of 1948. "Men and women of full
age, without any limitation due to race, nationality, or religion, have the freedom to marry
and found a family”.4It also acknowledges the right to benefit from scientific advancement 5.

3
Suchita Srivastva & Anr. v. Chandigarh Administration, (2009) 9 SCC 1
4
Article 16(1), The Universal Declaration of Human Rights, https://www.un.org/en/documents/udhr/.
5
Article 15, The Universal Declaration of Human Rights, https://www.un.org/en/documents/udhr/.
The Right to Procreate, the Right to Start a Family, the Right to Reproduce, and the Right to
Make Biological Decisions are all being considered important aspects of individual freedom.

In the United Kingdom, the Human Fertilisation and Embryology Act of 2008 allows
unmarried and same-sex couples to apply for parental orders6. Similarly, California leads the
way in terms of surrogacy treatment acceptance, stating that lesbian, gay, bisexual, and
transgender (LGBT) people can choose to have a child through surrogacy by reading multiple
cases in light of the state's Uniform Parentage Act, 2000. Surrogacy for homosexual couples
is permitted at the state level rather than at the federal level in the United States of America.
The assisted human reproduction act of 2004 in Canada empowers the LGBTIQ community
to participate in society.

CONCLUSION

Analysts contend that the Surrogacy (Regulation) Act of 2021's contradictory sections will
fail to safeguard the interests of surrogate mothers and intended parents. It's been believed
that these flaws will contribute to the growth of a black market for surrogacy services.
Concerns have been made about age restrictions and the exclusion of LGBTQ couples, which
are not helping society grow, as surrogacy should be acknowledged as a reproductive right
available to all people regardless of their social status. Because India is going through a
revolutionary period in which citizens' thinking is evolving away from patriarchal standards
and toward a more modern feminist culture, there is concern regarding the existing surrogacy
policy.

6
Section 54 of the Human Fertilisation and Embryology Act, 2008.