Marriage, as an institution, is the social order through which a wedded couple wish to give birth to a child. Be that as it may, for an infertile couple, this longing stays unfulfilled. In our society, being infertile has been historically seen as an issue and sometimes, when couples who are infertile, do not want to adopt a child, they opt for surrogacy, as they want the child to have their traits.

Surrogate motherhood depicts a course of action where a woman (the surrogate mother) consents to get pregnant and bear a kid for someone else or persons (the commissioning parents) to whom the care of the kid will be transferred straightforwardly after birth. It is recently that surrogacy or surrogate motherhood has emerged as a topic of national and international debate.

The study of biotechnology has discovered developments such as sex determination techniques, DNA testing, fingerprinting and what not. With that, the concept of motherhood is also affected and has been changed in to genetic mother, surrogate mother, biological mother and social mother.[1] Surrogacy is always seen as an alternative to adoption and despite all the controversial and unethical issues, surrogacy has gained a rise in popularity. 0

Not only internationally, surrogacy has been a very debatable topic in India as well since it has many legal and moral complexities surrounding it. The main aim of the Surrogacy (Regulation) Bill, 2020 is to ban the custom of womb hiring, reduce the unethical practice and preserve the rights of not only the infertile couple but also the surrogate mother. 0

This bill was passed, by the Lok Sabha on 5th August 2019 and send by the Rajya Sabha to refer the bill to a Select committee which was finally accepted in February. There were many changes made to the 2019 proposed bill such as:

• It allows any willing woman to be a surrogate mother as opposed to the 2019 bill which stated that only a closed relative of the couple can be a surrogate mother.
• It deleted the definition of infertility as inability to conceive after five years of unprotected intercourse on the ground that it was too long a period for a couple to wait for a child.[2]
• Proposes to regulate surrogacy by putting up National Surrogacy Board at the central level and State surrogacy board along with appropriate authorities at the Union and State territories.
• The insurance cover for surrogate mothers increased from 16 months to 36 months.
• Commercial surrogacy shall be prohibited which includes selling and buying of human embryos and gametes.
• Ethical surrogacy shall only be available to Indian married couples, Indian-origin married couples and Indian single woman (any widow or divorcee with the age between 35-45 years) that too only on the fulfillment of certain conditions.

The difference between altruistic and commercial surrogacy is that in altruistic surrogacy, are those agreements where the surrogate does not receive any monetary compensation, other than medical cost and it has been seen mostly that in this type, the surrogate is usually in close relation to the intended parents. It is way different from a commercial one where agreement includes pre-determined monetary compensation to the surrogate.

However, allowing close relatives to practice surrogacy is counterproductive to aim of ending womens exploitation.[3] With the Bill aiming to allow only altruistic surrogacy, it is probable that the couples might go for someone in close parameter than choosing any other woman. Being familiar with the idea of patriarchal families in India, the stigma of infertility and pressure of keeping the lineage within the family itself, women can be coerced into being surrogate for other well-off relatives. 0

According to Dr. Anoop Gupta, a bill that only allows altruistic surrogacy can actually encourage conflict within the families.[4] The bill denies an option to women who want to opt for surrogacy and make it a practice.

It limits the choice of women that they can have over their own body. Other than that, the bill also denies the right to those men who do not want to get married but still wants a child. And even though there is always an option for adoption, the option of surrogacy should also be available. Bill also seeks bar for single women and LGBTQ community for opting surrogacy and it only reinforces the stigmas against the LGBTQ community which Article 377 wanted to remove.

Having child is a basic human right[5]

The Declaration of Human rights, 1948 said that men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family[6]Even the Judiciary of India realizes that reproductive right is basic constitution right, then even the right to have a child via surrogacy be a basic right.

The Bill under its aspect leave out so many people who would want to have a baby via surrogacy including: unmarried couples, the LGBTQ community and single men. 0
Other alarming problem is that not only the bill but the whole concept of surrogacy arises is the non-adoption of around 12 million orphan children in India. People opt for surrogacy over adoption as it is a complicated and lengthy procedure. There is a need for adoption to become a more uncomplicated procedure as an alternative to surrogacy keeping in mind that surrogacy shall anyhow be an available option with all types of people. 0

End-Notes:

1. Dr. Chintamani Rout, “Surrogacy- A Conceptual and Legal Analysis in 21st Century” Orient Journal of Law and Social Sciences 26 (November, 2012).
2. Surrogacy Regulation bill 2020. Source: The Hindu
3. Is the surrogacy bill 2019 unfair to women by limiting their options? Source: The Print
4. Is the surrogacy bill 2019 unfair to women by limiting their options? Source: The Print
5. (Burning Issue) The Surrogacy (regulation) bill, 2020
6. Article 16 of Declaration of Human Rights, 1948