“The state controlling a woman would mean denying her full autonomy and full equality.”– Ruth Bader Ginsburg
The word ‘surrogacy’ finds its root from the Latin term ‘Surrogātus,’ which is the perfect passive participle of the word ‘Surrogāre.’ This literally translates to mean ‘a substitute’ or any other person acting in place of another. Even though this particular practice is deemed relatively novel, India has had an ancient affiliation with surrogacy.
The practice of surrogacy has been widely mentioned in the Indian Mythology as ‘Niyog’ and was even a socially accepted and respected phenomenon. The surrogacy law in India has been a great matter of controversy as it was one of the very few countries in the world which allowed surrogacy to take place at a commercial level. There are various opponents as well proponents to commercial surrogacy with many arguing that surrogacy is just a measure of exploitation of women as it makes use of their bodies to earn money, thus linking it with more exploitative trades such as prostitution. However, these views are considered pretty extreme. The proponents on the other hand, have affirmed that this is a great form of livelihood for poor women as they can use their bodies to earn wealth without being exploited and without it actually affecting their health severely.
India has a long history in relation to surrogacy. It was mentioned in Indian Mythological fables and stories. The history of surrogacy legislation can be traced back to the year 2002, when the ‘rent a womb’ practice was introduced in the country to promote medical tourism.
In modern India, we see that the practice of surrogacy began with the birth of the world’s second and India’s first IVF baby Lakshmi in Kolkata and subsequently we see that the practice became widely followed. A remarkable change in relation to surrogacy was brought about in 2002. It changed the nature of surrogacy laws in the country by commercializing it and giving it recognition in the eyes of law. However, this act of giving it legal recognition and commercializing changed the entire scenario of surrogacy and made the country an international destination for surrogacy. As surrogacy laws in countries like Germany and USA were much stringent than that in India, the 2002 law allowed India to start a booming surrogacy industry. This was also aided by the Supreme Court’s judgement in Baby Manji Yamada v. Union of India, wherein the status of a Japanese baby born to an Indian mother was left in a soup as the Japanese parents separated before the birth of the baby. The father, Ifukumi Yamada wanted to take the child with him. However, there were not any laws permitting him to do so. Thus the Supreme Court had to step in and it allowed the child to be taken away by the paternal grandmother.
With due passage of time, the ill effects of the surrogacy boom began to be felt and many were of the opinion that this was leading to exploitation of women and that there was an imminent need to bring in a proper law to regulate surrogacy. Accordingly, a law commission was set up to look into the issue of surrogacy in India. Subsequently, the law commission reports in its findings suggested that the issues relating to surrogacy were very complex and thus a comprehensive legislation was needed to solve the issues at the earliest. As the ICMR Guidelines were the only regulations guiding commercial surrogacy, it was considered ineffective. Thus an amendment was brought in the Assisted Reproduction Technology Bill, 2010 to plug loopholes in relation to surrogacy. The Bill brought with it, stringent laws in order to effectively deal with the matter. Various guidelines were brought in to ensure that exploitation of surrogate mothers do not occur. These changes were so made that it addressed the interests of both the surrogate mothers and the parent of the baby involved. They also addressed the deficiencies in law as addressed in the Baby Manji Yamada Case.
The age of the surrogate mother was also altered to fall between 21 and 35. Moreover, she shall be allowed to carry only a maximum of 5 babies during this time so that her health is not affected. It was further stated that a baby belonging to foreign parents but born to an Indian surrogate mother will not be considered an Indian citizen, but will be considered a citizen of the country of their parents. All parental rights were also made to be relinquished by the surrogate mother. In tune with these changes, a further amendment was brought in 2013, making it illegal for foreign homosexual couples and single parents to parent a child through surrogacy. In 2015, the Government of India banned commercial surrogacy and permitted the entry of embryos only for scientific purposes. Shortly, thereafter, the Surrogacy Regulation Bill was brought in the parliament in the year 2016. However, this bill lapsed due to the adjournment of the parliament sine – die. It was this same bill which was reintroduced in the houses of parliament in the year 2019, after making certain changes in its provisions.
TYPES OF SURROGACY
Surrogacy can be broadly divided into two types; (1) Traditional and (2) Gestational surrogacy. Out of these, the traditional method is popular in India. Intraditional surrogacy, the embryo of the child is formed using the surrogate’s egg which is to be carried either through intrauterine insemination or through in vitro fertilization by the surrogate mother. Here, the sperm can also be taken from some other male person in case of the commissioning couple being two women. A single woman can also commission the child in this case. The surrogate can get pregnant either through sexual intercourse or intrauterine insemination. In the process of a gestational surrogacy, the intended parents create an embryo using their own egg and sperm or create an embryo using a donated egg or sperm.
While the traditional type was the only way to complete a surrogacy through most of history, over the past 30 years, gestational surrogacy has increasingly become more popular. Since gestational surrogacy not only allows both parents of a heterosexual couple to be biologically related to their child, but it also helps to eliminate some of the legal and emotional struggles that come with a surrogate being genetically related to the child she is carrying.
It can also be observed that surrogacy can be divided into (1) Commercial and (2) Altruistic surrogacy. In commercial surrogacy, the surrogate enjoys compensation in monetary terms for her womb ‘given on rent’. In case of an altruistic surrogacy, no financial benefit is given to the surrogate. They are only given the medical expenses as monetary compensation for carrying the baby.
THE SURROGACY (REGULATION) BILL, 2019
The Surrogacy (Regulation) Bill was given assent by the Lok Sabha on 5th August, 2019. It was ushered in by Minister of Health and Family Welfare, Mr. Harsh Vardhan who quoted this bill to be “the need of the hourgiven the rise in unethical practices and ill-treatment of surrogate mothers”. However, this bill has been a subject of much controversy regarding its provisions being ethically and legally questionable.
A LEGAL PERSPECTIVE
The Surrogacy Regulation Bill, 2019 elucidates the meaning of surrogacy in Section 2(xc) as a practice whereby another woman bears a child in order to give birth to the child for the couple who is intending to have a child. This is done with an intention to ‘hand over’ the child to the intending couple soon after birthing it. The surrogate mother is also defined in the bill in Section 2(zf) as the woman who bears the child, which is genetically related to the intending couple through the process of surrogacy i.e. by the implantation of the embryo in her womb. The child so conceived is regarded as the organic offspring of the intending couple and is qualified for all the rights and benefits accessible to any natural child. The bill also mandates that the intending couple need to attest in a confirmed statement that they are medically certified to be infertile. Furthermore, infertility has been defined in the bill in Section 2(p) as the lack of ability to conceive after five years of unprotected coitus or any other proven medical condition which is hindering the couple from conceiving a child.
The Bill has invoked a mixed response from experts and others alike. Its provisions are being subject to much scrutiny by experts, women rights organisations and legal luminaries. Some elements of the bill do seem to be an effective deterrent against any misuse of the said practice of surrogacy. The bill strictly requires in writing, a document expressly mentioning the ‘consent’ of the surrogate mother to undergo the entire procedure in a language she understands (Section 6 (1)(ii)). The bill also allows the surrogate mother to withdraw her consent for surrogacy before the implantation of a human embryo in her womb (Section 6 (2)).
Section 7 of the Bill expressly mentions that the intending couple cannot leave the child born through the process of the surrogacy due to any reason whatsoever it may be. Be it the sex of the child, any genetic defect, birth defect, or any other medical condition in the child so born, the couple cannot abandon the child. The bill also effectively mandates that nothing should coerce the surrogate mother to abort at any stage of surrogacy except in such conditions as may be prescribed as under Section 9. All of these provisions have been carefully formulated in order to safeguard the rights of the surrogate mother, rendering them the agency over certain important decisions regarding their bodily autonomy.
However, the Bill also houses certain discriminatory provisions that are argued to deny the woman her ability to exercise her agency power regarding her reproductive health and welfare. The Bill in Section 35(1)(a) prohibits any person, surrogacy clinic, or any organisation to under take or provide any form of commercial surrogacy. This particular provision has been the most deliberated upon since it mandates a complete ban on commercial surrogacy and only allows for the limited use of altruistic surrogacy. Commercial surrogacy has been defined in Section 2(f) as the transaction or trading of services of surrogate motherhood by way of providing monetary incentive in cash or kind, to the surrogate mother or her representative. It includes all expenses, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother. The Bill also prescribes a punishment with imprisonment for a term which may extend to ten years and with fine which may extend upto ten lakh rupees, if there is non-conformance of the provisions.
The very fact that the bill necessitates for the interdiction of commercial surrogacy and advanced altruistic surrogacy has been intensely opposed by gynecologists as being an exploitative mechanism that will force unjustifiable tension on the woman who probably would not be able to negotiate becoming surrogates. The bill has also been critiqued because it does not include or acknowledge same-sex couples despite the Supreme Court’s judgement legalizing such relationships. This is violative of the fundamental rights provided in our constitution because not only does it violate the right to equality under Article 14, but it also restricts the right to exercise their personal liberty under Article 21.
Section 4(iii)(a) of the Bill necessitates the intending couple to produce a ‘Certificate of Essentiality’ issued by an appropriate authority and the proof of infertility to be issued from a District Medical Board (Section 4 (iii)(I)). This particular provision also effectively restricts a person’s right to exercise their choice. It neglects the fact that a woman might not want to carry a child herself.
Section 4 (iii)(c)(I) requires the intending couple be aged between 23 to 50 years, in case of the female and between 26 to 55 years in case of the male. The couple is to be married for at least five years and they must be Indian citizens. The intending couple is not to have had any surviving child prior, either biologically, through adoption or through surrogacy. This particular provision denies older couples and numerous other couples, who do not fall under the requisites prescribed, to have a child through the process of surrogacy. It is thus a complete violation of their right of personal liberty and reproductive choices. The bill also mandates that the surrogate mother be married, have a child of her own and be aged between 25 to 35 years on the day of implantation. Moreover, she can be a surrogate only once in the course of her lifetime. There exists hence, a very restrictive reproductive right that undermines their bodily autonomy. It becomes extremely important to have a justified reasoning as to why a woman without a child or a woman who is not married cannot be a surrogate mother.
CONCLUSION AND SUGGESTIONS
The sudden upsurge in surrogacy rates has led to an increase in the exploitation of surrogate mothers. This gross exploitation is primarily because the surrogate mothers often hail from economically vulnerable backgrounds. The lack of education and persistent information asymmetry between the surrogates and the intending couple lead to continued exploitation of these surrogate mothers. Often, the contracts are entered into on their behalf by the clinics and the interested parties. As a result, the surrogates are oblivious to the terms of the contract. The women often tend to not have any decision making power regarding such choices. Here, the baby becomes a ‘commodity’ and the men in the family control the woman’s reproductive capacities by selling and reselling the womb. This is very derogatory since a woman is reduced to a mere ‘baby-making’ machine without any independent decision making powers regarding their body. The Bill effectively tackles such grave problems revolving around the practice of surrogacy so that it is not detrimental to the health of the surrogate mother and that there exists the least possibility of perversion to this medical advancement.
Although this practice has become a way of money extortion and has been often exploited, it is also true that in developing countries surrogacy is an important source of income for women of economically backward areas. A complete ban on this may have a life-changing impact on these vulnerable women.
It is also pertinent to note the lacunas in the Bill, so that the fundamental rights of personal liberty and equality guaranteed under the Constitution are protected. The Apex Court, on multiple occasions, has stated that the right to reproductive choice falls under Article 21 (Right to Life and Personal Liberty) and an individual’s right to privacy. Therefore, the provisions should not be violative of these fundamental rights, and the women’s reproductive choices are to be rightfully respected.
Commercial surrogacy, if permitted, should be within the purview of acceptable concrete guidelines and constant supervision. There needs to be a structured regulation regarding the same. It is also imperative to note the setting under which a woman chooses to be a surrogate mother. It may be based on social and financial contemplation. Surrogacy is also observed to be a more secure and preferable alternative over different options available for certain women. The choice must rest entirely on the woman, and they should effectively render their agency power regarding the same.
 ROSEN R & TWAMLEY K., FEMINISM AND THE POLITICS OF CHILDHOOD: FRIENDS OR FOES? 155-171 (London: UCL Press 2018).
 Baby Manji Yamada v. Union of India & Anr., (2008) 13 SCC 518.
 Id. at 2.
 Olinda Timms, Ending commercial surrogacy in India: Significance of the Surrogacy (Regulation) Bill, 2016, 3(2), IJME, 99, 99-102(2018).
 Types of Surrogacy, SURROGATE.COM (Nov. 3, 2020), https://surrogate.com/about-surrogacy/types-of-surrogacy/types-of-surrogacy/.
 Manjunath, C., The Surrogacy Bill, 2019 Denies Women Agency over Their Bodies, FEMINISM IN INDIA (Nov. 3, 2020), https://feminisminindia.com/2019/08/08/lok-sabha-passes-surrogacy-regulation-bill-2019/.
 The Surrogacy (Regulation) Bill, 2019, § 2, No. 156-C, 2019 (India).
 Lok Sabha Passes Surrogacy Bill, THE HINDU BUSINESSLINE (Dec. 19, 2018), https://www.thehindubusinessline.com/news/national/lok-sabha-passes-surrogate-bill/article25781949.ece.
 Id. at 6.
Subhadeepa Sen and Rahul Purkayastha, Surrogacy in India: A Socio-Legal Perspective, Ex Gratia Law Journal, (December 1, 2020), https://exgratialawjournal.in/journal/volume-1/vol1-issue3-dec2020/surrogacy-in-india-a-socio-legal-perspective-by-subhadeepa-sen-and-rahul-purkayastha/.