The Surrogacy Bill 2016 – Boon Or Bane?

Adv (Dr.) Santosh A. Shah

18 Sep 2016 6:50 AM GMT

  • The Surrogacy Bill 2016 – Boon Or Bane?

    The beginning The birth of a child is said to be the beginning of all things – hopes, dreams, possibilities and miracles. But there are some who, for a number of reasons, are unable to experience that. This is when acts of assisted pregnancy, surrogacy and adoption come to the rescue of those in despair.Surrogacy – the act of hope has been revered since the dawn of the times. History...

    The beginning

    The birth of a child is said to be the beginning of all things – hopes, dreams, possibilities and miracles. But there are some who, for a number of reasons, are unable to experience that. This is when acts of assisted pregnancy, surrogacy and adoption come to the rescue of those in despair.

    Surrogacy – the act of hope has been revered since the dawn of the times. History is crammed with instances of such acts and many religions and civilisations upholding surrogate mothers with adulation for their noble services to mankind.

    Modern surrogacy, however, found mention only as recently as late 1970’s when lawyer Noel Keane, brokered the first official legal agreement between a couple – the intended parents and a surrogate mother.

    What is Surrogacy?

    By definition, it is the process of in-vitro fertilisation (IVF) and transfer of embryo into the womb of another woman (surrogate), to be carried for nine months through birth. In concept, this is a noble and a beautiful idea aimed at helping people bear children when they themselves are unable to do so for various reasons.

    The surrogate usually receives a financial compensation to carry the child to term and then hands over the official rights of the baby to the intended parents. It is important that the surrogacy contracts that binds these relationships to be studied thoroughly. Chances of exploitation are high when the surrogates are illiterate, poor and often misguided.

    Surrogacy in India

    In India until now, as there was no law regulating surrogacy, the intended parents-surrogate relationships were bound only by contracts. The easy access to suitable medical infrastructure and affordable costs had already made India a medical tourism hub. This further coupled with the availability of potential surrogates and a burgeoning international demand; the market of commercial surrogacy boomed in the country.

    According to current estimates, the Indian surrogacy industry is estimated to be worth more than $1 billion a year and growing. The benefits of surrogacy were being reaped by people world over to satisfy their longing to have a child.

    Such great was the need of parenting that surrogacy penetrated even the most rural of all places in the country. Though there was a certain level of hesitation about this concept to some extent, it undoubtedly benefited the poverty-stricken and needy women who were ready to carry others' embryos through to birth for a price.

    Ironically, the price-conscious mindset even approached surrogacy as a cheaper mode of reproduction than other IVF treatments.

    The Surrogacy (Regulation) Bill, 2016:

    August 24, 2016, Wednesday was a deciding day on India’s calendar as the Govt. of India in it’s Central Cabinet, approved the Surrogacy Regulation Bill 2016 and has since taken the world by storm.

    Given below are the main features of the bill, which appear opinionated.

    1. The Bill seeks to ban Commercial surrogacy. The heterosexual couple, therefore, cannot pay their surrogate but can bear only her medical bills.

    2. The Bill seeks to ban people who do not hold an Indian passport to seek surrogacy in India.

    3. According to the Bill, it is necessary that only those heterosexual couples may attempt surrogacy who have been married for at least five years and have proven infertility issues. This prohibits homosexual couples, live-in partners, and single parents from having children through surrogacy.

    4. The Bill makes it necessary that the married couple must adhere to the age criteria where the woman is between 23-50 years and the man be in 26-55 years age bracket. Also, they may seek surrogacy from only a close relative and no one else.

    5. Further, the Bill states that should the couple already have a child earlier through birth, adoption or surrogacy, cannot seek a surrogate again.

    6. With the proposed establishment of National Surrogacy Board and State Surrogacy Board, the Bill proposes to overlook all cases of surrogacy and regulate Hospitals and clinics that offer surrogacy in India. Any violations discovered will be subject to appropriate penalties with a jail term and fine.

    Will a ban help?

    Until very recently, popular movie celebrities were in the news for their parenthood and single fatherhood via surrogacy. This Bill seems to be taking a dig at these three very exceptional cases, conveniently forgetting that this could have been the need of the hour and convenience.

    The basis of banning commercial surrogacy is considerable: to prevent exploitation of poor, needy women. However, this argument is only relative. There is enough market information to prove that commercial surrogacy in India has not only helped oft-poor surrogates financially but also has generated large revenues for the country by medical tourism and helped thousands of childless people worldwide.

    In a nutshell, the Bill appears focused on banning surrogacy more than regulating it. Oddly, it is in stark contrast with another Bill by Department of Health that sought to regulate all aspects of assisted reproductive practices. An outright enforcement of anti-modern principles on the citizens, the Bill also violates Article 21. Right to Life - by denying deserving people of parenthood.

    The Bill also incites discrimination against people for their status and orientation who otherwise have equal legal rights under other laws. The bill is therefore in violation of Art. 14 –Right to Equality of the Constitution. Not to mention probable harassment of medical practitioners by imposing penal provisions. More so, discouraging even Indian citizens from considering surrogacy by asking them to associate with only a close relative. This violates their personal space and the need for confidentiality.

    In our view, the Bill sets yet another example of the orthodox moral ethics and principles that the Government is attempting to enforce on people.

    India, by large, is still a family oriented society and in our general social scenario, couples have to field tremendous peer pressure to have a child. Failure to do so leads either to rebellious marriages or divorces, re-marriages or illegitimate relations. In extreme cases, the families may even resort to unscientific, desperate measures to overcome childlessness. And with the Government’s current rigid disposition, there are high chances of surrogacy going underground and becoming expensive and dangerous.

    The Bill also demonstrates the Government’s callous attitude towards people who may need to opt for surrogacy for a second child, where a normal pregnancy and birth is not possible due to some medical reasons. With the bill banning surrogacy for a second child, this only ends up punishing the hopeful couple for no fault of theirs. No other laws deprive couples of having more than one child, or at least a second child. On a similar note, the mandate of minimum five years of marriage is also unfair in today’s late-marriage times.

    The Bill demands proven infertility issues from couples seeking surrogacy. This is a very timid view considering people may also be affected by other physical, mental and emotional reasons due to which they may be unable to have a child.


    Any industry when unregulated, is prone to exploitation; no doubt. But to enforce a blanket ban on commercial surrogacy trying to curb malpractices is an undemocratic and regressive approach to regulating this industry. We can only hope that as the Bill reaches out to different committees and the Parliament, the associated pitfalls in today’s times are properly deliberated upon.

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