For several years since its inception in India, commercial surrogacy has been considered a taboo, a social wrong and a practice to be ashamed of. It is quite hard to imagine the birth of babies, a concept considered sacred and holding a strong emotional connect, as a subject matter of commercial activity. Feminist arguments against surrogacy as the objectification of a woman’s womb and the religious arguments against surrogacy as it being unethical and noxious to age-old customs have long persisted in the political debate surrounding surrogacy. Commercial Surrogacy or “wombs for rent” still continued to be a growing business in India. It has been popularly described as the “baby booming practice” or “parenthood by proxy” by critics. India is currently the no.1 hub for surrogacy services in the international market purely because surrogate mothers are easily available, the entire cost of procedure is fairly inexpensive and because there is no law governing this business. Legalised in 2002 as a part of the country’s drive to promote medical tourism, it is now a half-a-billion dollar a year industry. Commercial surrogacy business in India opens up a pandora’s box of social, ethical and legal issues which will be discussed through the course of this article.
2. Legal Developments prior to Baby Manji
Internationally surrogacy has been demarcated into three kinds – Free Market, Regulated and Prohibited. Some countries have completely banned surrogacy making it a criminal offence while other countries do not allow it on limited grounds of altruism India is the only country in the world that has regulated surrogacy activities nor has it banned the practice. The entire world sat up and took note of surrogacy when the New Jersey Supreme Court heard the Baby M case.The Court handed over the baby in question to the intended parents in the best interests of the child but held that the commercial surrogacy contract to be void against public policy. Following the Baby M case commercial surrogacy as a business began to be acknowledged and regulated not only in the United States of America but other countries also. Majority of the world’s countries are yet to establish legislation but of the countries that have legislated on Surrogacy several including Germany, Italy and most states of the United States prohibit all forms of Surrogacy. India unfortunately falls into the category of the countries that have no substantial legislation regulating surrogacy.
The Delhi Artificial Insemination Act, 1995 is the only statutory act prevailing in India. After several years of discussion and debate the National Academy of Medical Sciences, Indian Council of Medical Research, practitioners of ART and the Ministry of Health and Family Welfare published the non-binding National Guidelines for Accreditation, Supervision and Regulation of ART clinics in 2005. These guidelines did not specify any legal bar for the use of Assisted Reproductive Technology (ART) by a single woman and the child born would have legal rights on the man or woman concerned. However these guidelines being non-statutory till date, it is up to the sweet will of the clinics whether they follow it or not. There is no internal regulatory body either like the HFEA in U.K. The favoured ‘Surrogacy Destination’ of the world, India, must have laws to back the business of Surrogacy and IVF as the issues relating to Surrogacy are complex and very complicated. However, till 2008 there were no legal provision dealing directly with Surrogacy, to govern the matters relating to the rights and interests of the Surrogate Mother, the Child, or the Commissioning Parents. The urgency to bring in an enactment regarding surrogacy was brought forth by the judgement in the Baby Manji case in 2008.
3. The Baby Manji Case and its Consequences
Baby Manji Yamada v. Union of India and Another was decided by the Indian Apex Court in 2008 making it not only the first decision relating to surrogacy but also in bringing to light the absence of regulation. Another unique feature of this judgement was that it was made under the presumption of legality of surrogacy agreements and merely deliberated on the status on such contracts. Baby Manji was born on the 25th of July 2008 in Anand, Gujarat. Baby Manji had 3 mothers – the intended mother, the anonymous egg donor and the gestational mother/ surrogate yet she legally had none. None of the existing laws covered a situation like this and since they intended parents were divorced, the baby could not even be adopted by her father because India’s Guardians and Wards Act, 1890 prohibits a single father from adopting. The case was brought to the Supreme Court challenging the directions given by the Division Bench of the Rajasthan High Court relating to the custody of the baby.
The Supreme Court of India, in a short and hurried judgement, delegated the responsibility on the National Commission Protection of Child Rights to decide on the legality of surrogacy. One of the major drawbacks of the Supreme Court’s judgement was its failure to undertake a detailed analysis of the surrogacy contract itself as well as the facts that lead to the case. The Court itself pronounced that surrogacy is legal in India where, “where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions.” The fact that poor women are surrogates who are succumbing to high international demand did not bother the Supreme Court; instead it delegated the task of testing legality to the Commission. Although the Apex Court could have exercised much more caution in dealing with a subject that has not even been legislated upon it merely exercised parens patriae in deciding the custody.
Although the highest court of India failed to address the weight that commercial surrogacy as an issue in India carried, the decision spurred the Indian Government to enactment of laws. The Law Commission of India in its 228th report titled, “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights and Obligations of Parties to a Surrogacy” followed by The Assisted Reproductive Technologies (Regulation) Bill, 2010. The bill that intensively regulated the clinics and rights of patients, surrogates and children however left huge gap in addressing several questions regarding public policy. Similar and rather rushed Bills were presented before the legislature in 2013 and 2016, neither of them getting any traction because of the hurried and inadequate drafts-man ship.
Despite it being 12 years since the question of Commercial Surrogacy has sprung up in the country, the Government is yet to enact a law regulating this half a billion dollars a year industry. Who should be given the access to Surrogacy? Should surrogacy contracts be completely governed only by the Indian Contracts Act? Should the child be provided with the rights to know his/her origin? Should there be a price ceiling or floor on commercial surrogacy rates so that poor uneducated women do not get exploited? These are just few of the questions that need to be addressed as more than 25,000 children are now being born every year through surrogacy. Lack of adequate regulations will continue to pave a way for black market of surrogacy services, considerable risks of exploitation, coercion, trafficking of surrogacy. It is high time a proper law with strict regulations and enforcement which would address the concerns of all stakeholders in the industry is enacted.
Yashomati Ghosh, Surrogacy and Law: An Affirmative Approach to Deal with the Ethical and Legal Dilemma, Journal of Law Teachers of India ((Vol.II. Issue 1, 2011).
 re. Baby M, 109 N.J. 396 (U.S.A.).
 The Delhi Artificial Insemination Human Act of 1995, Delhi Act No. 12, Legislative Assembly of the National Capital Territory of Delhi (1996).
 Indian Council of Medical Research (ICMR), National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, Ministry of Health and Family Welfare, Government of India, New Delhi (2005).
 Baby Manji Yamada v. Union of India and Another, (2008) 13 S.C.C. 518 (India).
 Guardians and Wards Act of 1890, No. 8, Parliament of India (1890).
 Government of India, Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights and Obligations of Parties to a Surrogacy, No. 288 of Law Commission of India (Aug 2008), http://lawcommissionofindia.nic.in/reports/report228.pdf
 The Assisted Reproductive Technologies (Regulation) Bill, 2010, Parliament of India, https://www.prsindia.org/uploads/media/vikas_doc/docs/1241500084~~DraftARTBill.pdf