Surrogacy is a centuries-old practice, but surrogacy for monetary gain grew with the advancement of infertility medicine as well as the prospects of "non-coital reproduction which have provided civilization with fantastic possibilities It is a natural biological urge in humans to try and pass down their genes; they consider it a way of preserving their legacy. For a majority of couples, it happens naturally, and for some unexpectedly, but there also exist, certain people, for whom it is unviable to conceive naturally. These people look for surrogate mothers: women who can carry their babies for them.

Commercial surrogacy is an arrangement where a surrogate mother receives a financial reward, the medical expenses for giving up of the child, which is usually pre-determined, agreed upon, and written up in a contract. [1]In comparison to traditional surrogacy, commercial surrogacy is a modern practice.

Infertility in one or both couples and a desire to have a child has driven them to seek out other methods of childbearing. It is now conceivable thanks to the advancement of assisted reproductive technology for a child to be delivered through a surrogate mother who is not related to her genetically. Commercial surrogacy has been legal in India since 2002. However, there has always been a need felt for comprehensive legislation regarding surrogacy; a codified law protecting the rights of surrogate mothers and surrogate children.

In the case of Baby Manji Yamada v Union of India in 2008, the honorable Supreme Court of India recognized commercial surrogacy and the need for a law governing it. [2]The lack of surrogacy law in India was brought up in the case of Baby Manji before the Supreme Court of India, where it was claimed that in the name of surrogacy, a money-making racket is being perpetuated and that the Union of India should enforce stringent laws relating to surrogacy.

Over the years, there have also been multiple cases, where the rights of surrogate mothers and children conceived through surrogacy have been violated. Because one of the twins born to a surrogate Indian mother had Down syndrome, an Australian couple abandoned the child in 2012. A 23-year-old woman died in 2014 after undergoing an egg donation process at an IVF clinic.

Many studies deemed commercial surrogacy to be exploitative, and some even equated it to prostitution because surrogates are exploited sexually to perform reproductive labor. Women who experience recurring failure must endure a high dose of medicine, multiple embryo transfers, hormone treatment, and other procedures. Other elements of surrogacy exist, such as inadequate compensation, the possibility of trafficking, post-pregnancy complications, mental health, and so on. Seeing these heinous acts, advocate Jayashree Wad filed public interest litigation (PIL) before the Supreme Court in 2015, requesting that commercial surrogacy be prohibited. Her public interest lawsuit influenced public opinion and put pressure on the government to implement legislation.

I read about how women were exploited by a handful of medical experts who controlled it (surrogacy business), which I thought should be stopped. Surrogate moms are not told about the risks. -Advocate Jayashree Wad[3]

The Surrogacy (Regulation) Bill, 2016, was introduced in the Rajya Sabha but did not pass, and it was referred to the Parliamentary Standing Committee for review. In its 102nd Report, the committee stated that restricting commercial surrogacy was undesirable and was based on moralistic beliefs rather than scientific standards. The Rajya Sabha referred a Bill to the select committee in 2019 that contained little to no amendments from the 2016 Bill.

The Cabinet approved the Surrogacy (Regulation) Bill, 2020, which included 15 important revisions recommended by the 23-member committee. The bill put a blanket ban on commercial surrogacy and restricted altruistic surrogacy. Surrogacy agreements in which the surrogate receives no monetary compensation apart from the medical expenses are known as altruistic surrogacy.[4]

After the bill was approved, a lot of points of view came up. Feminists argued that according to the Supreme Court in Suchitha Srivastava v. Chandigarh Administration, [(2009) 9 SCC 1], a woman's freedom to make a reproductive choice is an element of her liberty under Article 21. What was once thought to be a societal obligation, such as bearing a child, can now be used to economically empower women?

In BK Parthasarathi v. Govt of AP [1999 SCC Online AP 514], the AP High Court held that the State's intervention in procreation is a violation of privacy. The bill requires that authorized authorities issue certificates of essentiality and eligibility to ensure that intending parents are not biologically capable of having a child. The government's intrusion breaches the right to privacy.

Furthermore, as the Supreme Court declared in Consumer Education and Research Centre v. Union of India, [(1995) 3 SCC 42], the phrase "life" under Article 21 has a considerably broader reach and encompasses the right to livelihood.

In National Legal Services Authority v. Union of India, [AIR 2014 SC 1863], the Supreme Court recognized transgender rights. Third-gender rights are not addressed in the bill. The Bill's grounds are restrictive, and it excludes same-sex couples and transgender people from any type of surrogacy. These loopholes constitute constitutional roadblocks in this revolutionary constitutional moment, which is progressing toward the values of liberty and equality.

While made with the intention of keeping surrogate mothers safe, and free from exploitation, this bill has been receiving critiques by people from all walks of life, especially those for whom, this was a source of income, these moms suddenly feel like they are out of a job. While there may be women who are exploited or coerced into doing it by people who bend laws or by their families for money, but some women did this willingly, and this blanket ban took away that choice from them.

This bill may have prevented the exploitation of a variety of women, it also protected the rights of many such children born out of surrogacy, however, these issues could have been taken care of without a blanket ban and simply by a set of laws regarding surrogacy, the need for which was felt a little too late, since surrogacy is a centuries-old practice.

End-Notes:

1. Dr. D Radhika Yadav, K Pavan, a-case-for-compensatory-surrogacy, (June 27, 2021, 5:30 pm), https://telanganatoday.com/a-case-for-compensatory-surrogacy
2. Jwala D. Thapa, The 'Babies M': The Relevance Of Baby Manji Yamada V. Union Of India (Uoi) And In The Matter Of Baby M (June 29, 2020, 3:15 pm)http://docs.manupatra.in/newsline/articles/Upload/B2DC0190-6995-4560-A6E0-6B65B4895120.pdf
3. Bhadra Sinha, india-news/magazine-article-led-78-year-old-surrogacy-warrior-to-move-supreme-court/story, (June 29, 2021, 3:25 pm), https://www.hindustantimes.com/india-news/magazine-article-led-78-year-old-surrogacy-warrior-to-move-supreme-court/story-Yj6VytkEooOChZTVV3KDmK.html
4. Worldwide Surrogate Specialists, commercial-surrogacy-vs.-altruistic-surrogacy, (June 29, 2021, 3:35 pm), https://info.worldwidesurrogacy.org/blog/commercial-surrogacy-vs.-altruistic-surrogacy