On 19 December 2018, the lower house of the Parliament passed the Surrogacy (Regulation) Bill, 2016. Although the bill was cleared in the cabinet as early as 2016, it was referred to the Parliamentary Standing Committee (Health & Family Welfare) before its passage. The bill seeks to protect women from exploitation.

Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman agrees to become pregnant, carry the pregnancy to due term, and give birth to a child or children, all of this for another person or persons, who are or will ultimately become the parent of the newborn child or children. Surrogacy is needed when the woman has uterine issues, pre-existing health condition, hysterectomy as a result of cancer, some previous pregnancy complications which can put both the baby and mother to a risk, or some other restrictions other than medical like in case of LGBTQ couples.

There are more than 50 million infertile couples in the world, and India and Thailand have become the biggest hubs for commercial surrogacy over the decade due to various favourable factors such as cheap costs, large number of well-equipped private clinics as well as well qualified doctors. Lack of regulation creates many social, ethical and commercial problems as illustrated in the points below:

1. In 2008, a Japanese couple had appointed a surrogate in a small town in Gujarat. After nine months, at the time of baby’s birth, the couple was no longer together leaving the child both parentless and stateless as surrogacy is still prohibited in Japan.
2. In 2012, an Australian couple had twins via a surrogate, but acted according to their whim and deserted one in India and took the other one back home.
3. A young mother of two had decided to sacrifice her own body by becoming a surrogate in order to earn some money for her kids, but in spite of delivering a healthy baby, she could not earn much as the middleman took away 50% of her earnings.
4. In recent years, women in the show business like Bollywood and the fashion industry have starting opting for surrogacy in order to avoid labour pain and ‘stay in shape’.
5. India has a socially conservative culture where women who use their bodies for earning money have to face high level of social stigma and exclusion.

These points bring into light the total disregard of the rights of the surrogate and the child and how there needs to be a law in place to protect them from exploitation and ill treatment.

The bill aims to put a complete ban on commercial surrogacy. The term generally refers to any surrogacy arrangement in which the surrogate mother is compensated for her services beyond reimbursement of medical expenses. Clause 35 of the Bill classifies surrogacy as an offence.

Offences include commercial surrogacy, providing services in relation to that, running surrogacy agencies without legal registration, advertisement of commercial surrogacy services, exploitation of surrogate mothers, selling of human embryos et al. The bill prescribes punishment of imprisonment for a minimum term of ten years and with fine which may extend up to ten years for committing these offences.

The bill only allows altruistic surrogacy. The term refers to an arrangement in which a woman volunteers to carry a pregnancy for intended parents without receiving any monetary compensation in return.

Only a woman who is genetically related to the intending couple can act as a surrogate for them.

Only a woman in the age group of 25-35 can opt to be a surrogate mother and a woman can provide surrogacy services only once in her lifetime.

The bill imposes that only a ‘legally married Indian couple’ can avail surrogacy services who have been married for a period greater than 5 years. ‘Couple’ only includes a legally married man (above the age of 21) and a woman (above the age of 18) and not foreigners, live-in partners and same-sex couples. The couple has to present a ‘certificate of infertility’ in order too avail these services. The couple must be between the age of 23-50 years and 26-55 years for female and male, respectively.

The intending couple should not have had any surviving child biologically or through adoption or through surrogacy earlier. However, if the surviving child is medically certified to be mentally or physically challenged, or as having life threatening diseases, the couple can avail surrogacy services.

The child born to the surrogate will be considered to be the legal offspring of the intending parents and the bill prohibits abandoning of the child by the legal parents. Also’ any form of sex-selected surrogacy is prohibited.

No person or agency can force the surrogate mother to abort the child.

Only clinics which are registered according to the provisions of the bill will be allowed to provide surrogacy services.

A Surrogacy Board will be set at National level to advice the government on surrogate policy and to see the functioning and implementation of the law.

Surrogacy involves a business contract of sale between the surrogate mother and the intending couple which is no less than a business transaction. It puts a price tag on the natural process of a birth of a child and reduces children to objects. Many women are pushed into the profession forcefully by their families to earn some money.

After the controversy followed by the Baby Manjhi case, in which the child was caught between the legal battle, the Government finally acknowledged the need of its’ interference in the growing industry of surrogacy services. All stakeholders were invited for a national level meeting, which CSR was a part of. But no concrete facts and evidences were available. Centre for Social Research was the first organisation to provide any research analysis based on grass root level data by conducting 2 major studies.

The first study was conducted in Anand, Jamnagar and Surat which threw light on the malpractices of the middlemen and how women are exploited, whereas the second study was conducted in the metropolitan cities of Delhi and Mumbai which highlighted the ever-growing embryo industry in the metro cities. According to CIA, surrogacy is an ever-growing industry of 23 billion dollars. The bill tries to curb the maleffects of commercial surrogacy and make the services available to only those who it sees as eligible.