Surrogacy Laws in India – Past Experiences and Emerging Facets

Chinmoy Pradip Sharma

Law governing surrogacy assumes great importance in India because India has often been termed as the ‘surrogacy capital of the world’. Prior to 2008, surrogacy (essentially commercial) was being briskly carried out in India without any efforts by the Government to set up a statutory regulatory mechanism. The Indian Council for Medical Research (ICMR) formulated certain Guidelines in 2005. However, these Guidelines did not have any statutory basis and surrogacy continued to remain an unchartered territory in the Indian legal landscape.

The turning point came in the year 2008 when the Supreme Court was called upon to deal with a case revolving around surrogacy. The case of Baby Manji Yamda v. Union of India merely pertained to obtaining travel documents for a baby with Japanese parents conceived and born in India through commercial surrogacy. Though the issue of the legality of commercial surrogacy under Indian law was not raised, the Supreme Court made an observation that commercial surrogacy is legal in India.

The timing of the judgment coincided with the formulation of the Assisted Reproductive Technology (Regulation) Bill, 2008. Unfortunately, no steps were taken to table the Bill of 2008 before Parliament. This prompted the Law Commission to suo moto take up the issue of surrogacy for research. The exercise culminated in its 228th Report submitted in August 2009 where the Law Commission mooted the proposal for a revamped legislation to regulate the process of surrogacy in India.

Acting upon the recommendation of the Law Commission, an improved Assisted Reproductive Technology (Regulation) Bill was prepared. After several modifications, the Assisted Reproductive Technology (Regulation) Bill, 2014 came into being. However, this Bill met with the same fate as the Bill of 2008 and did not see the light of day.

Meanwhile, the Surrogacy (Regulation) Bill, 2016 was conceived. The Bill differed from the Bill of 2014 in many respects which are discussed in subsequent paragraphs. This Bill was passed by the Lok Sabha on 19.12.2018. However, finality continued to elude the surrogacy law and the Bill was not introduced in the Rajya Sabha. Subsequently, the Bill of 2016 in the exact same form was re-introduced in the Lok Sabha as Surrogacy (Regulation) Bill, 2019 and was passed on 05.08.2019.

The law on surrogacy in India in the present form of the Bill of 2019 contains a few noteworthy facets. The major overhaul comes in the form of a complete embargo on commercial surrogacy. The Bill also envisages prohibition on foreign nationals from availing surrogacy services. Another striking feature is that surrogacy is sought to be restricted to a married couple to the exclusion of unmarried/ single persons and persons in live-in relationships.

Commercial surrogacy has been perceived to be the root cause of all evil that plagues surrogacy in India. Therefore, the Statement of Objects and Reasons accompanying the Bill of 2019 highlights that the legislation aims to curb the unethical practices surrounding commercial surrogacy including the exploitation of surrogate mothers. In doing so, the recommendation of the Law Commission to ban commercial surrogacy has been implemented and in this way, the Bill of 2019 makes a departure from the Bills of 2008 and 2014 which permitted commercial surrogacy.

The definition of the term ‘commercial surrogacy’ has been purposely kept extremely wide to encompass all possible methods. Additional layers of safety mechanism have also been put into place by requiring the surrogate mother to be a ‘close relative’ of the couple and restricting a woman’s participation in the surrogacy process as once in a lifetime measure. By restricting surrogacy in India to ‘altruistic surrogacy’ i.e., surrogacy without extending any benefits, the Bill of 2019 strives to bring surrogacy law in India at par with developed nations such as the UK and Canada which also prohibit commercial surrogacy.

Foreign nationals from all over the world have benefitted from the surrogacy in India. India provided an unregulated cheaper alternative to other nations of the West coupled with proper medical attention and infrastructure. The Bill of 2008 permitted a foreign couple to seek surrogacy services in India. This was overturned in the Bill of 2014 restricting surrogacy to Indian nationals, PIOs, and NRIs. Excluding foreign nationals from the purview of surrogacy services in India through the Bill of 2019 is a step in the right direction. This development comes in the wake of serious allegations of misdoings, exploitation, and irregularities reported in surrogacy cases involving foreign nationals. It is also a logical consequence arising out of the ban on commercial surrogacy envisaged by the Bill of 2019.

However, restricting surrogacy to a married couple seriously impinges upon the rights of single persons, LGBT persons, and persons who are in live-in relationships. On the other hand, there is no prohibition on these classes of persons adopting a child. As such, the law of surrogacy is at loggerheads with the law of adoption in India. Such a restriction also militates against the concept of equality as enshrined under Article 14 of the Constitution of India. While legislation can make room for reasonable classification, such classification has to bear a nexus with the object sought to be achieved by the legislation. The primary objective of the Bill of 2019 is to prevent unethical practices arising out of surrogacy services in India. Allowing surrogacy rights to a married couple to the exclusion of all others bears no nexus whatsoever this object. Therefore, such a provision cannot stand the test of constitutional validity.

Moreover, the term ‘close relative’ which the surrogate mother has to be is not defined in the Bill of 2019. One of the challenges that a couple is bound to face is to identify and then convince a ‘close relative’ to act as a surrogate mother. A possibility worth exploring is to allow both friends and family to become a surrogate mother. This will increase the zone of consideration and decrease the hardship for a couple to find a surrogate mother.

The Bill of 2019 was recently introduced in Rajya Sabha where the provisions were debated threadbare and the inadequacies discussed above were highlighted. With a view to addressing them, the Bill has been referred to a 23 member Select Committee of Rajya Sabha. The need of the hour is a holistic and well-rounded legislation regulating surrogacy which will stand the test of time and constitutionality. It is therefore imperative that the deliberations of the Committee are carried swiftly to iron out the creases and re-introduce the Bill in the next session of Parliament.

The author is a dispute resolution lawyer practising in Delhi and is a keen observer of law, polity, and judicial process.