The Surrogacy (Regulation) Bill, 2016

‘Homophobia Bigotry and Fundamental Rights Violation Disguised as Surrogate Welfare’  

Mother Nature has gifted the beautiful capacity to procreate a life to a w...

By: Nomita Mishra | Update: 2016-09-20 15:49:32

The Surrogacy (Regulation) Bill, 2016

‘Homophobia Bigotry and Fundamental Rights Violation Disguised as Surrogate Welfare’  

Mother Nature has gifted the beautiful capacity to procreate a life to a woman and every woman cherishes this experience of motherhood. Sadly, some women cannot produce their own children due to certain biological defect. The desire for motherhood escorts them to explore alternative solutions, and surrogacy seems to be the most workable alternative. Surrogacy has given hope to many infertile couples, who long to have a child of their own. India, has become a medical tourism spot, with a billion dollar surrogacy industry. It has attracted a number of foreigners due to cheaper rates and expertise in surrogacy arrangements. One issue that erupts out of this is the exploitation of surrogates. The Government of India has come out with a bill to curb this exploitation and promote the welfare of the surrogates, but unfortunately this bill imposes more bans than necessary infringing the fundamental rights of a number of stakeholders. The essay highlights some of the key loopholes in the bill.

For Robert Brown all love begins and ends with motherhood, by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood. It is no longer one indivisible instinct of mother to bear and bring up a child. With advancement of reproductive science, now, on occasions, the bearer of the seed is a mere vessel, a nursery to sprout, and the sapling is soon transported to some other soil to grow on. Now, it is Law's turn to appreciate the dichotomy of divine duty, the split motherhood.

‘Surrogacy’-meaning and types

The word ‘surrogate’ has its origin in Latin ‘surrogatus’, past participle of ‘surrogare’, meaning a substitute, that is, a person appointed to act in the place of another. Thus a surrogate mother is a woman who bears a child on behalf of another woman, either from her own egg or from the implantation in her womb of a fertilized egg from other woman.

According to the Black’s Law Dictionary, surrogacy means the process of carrying and delivering a child for another person. The New Encyclopedia Britannica defines ‘surrogate motherhood’ as the practice in which a woman bears a child for a couple unable to produce children in the usual way. The Report of the Committee of Inquiry into Human Fertilization and Embryology or the Warnock Report (1984) defines surrogacy as the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth. Surrogacy can be classified as Gestational and Traditional. ‘Gestational surrogacy’ is total in the sense that an embryo created by the process of IVF is implanted into the surrogate mother. ‘Traditional surrogacy’ may be called partial or genetically contracted motherhood because the surrogate mother is impregnated with the sperm of the intended father making her both the genetic and the gestational mother; the child shares make-up of the commissioning father and the surrogate mother.[2] Surrogacy can also be classified as Commercial and Altruistic depending on the fact that whether the surrogate receives financial reward or not.[3]

The growth in the ART techniques demonstrates that infertility hampers the overall wellbeing of couples and is also something cannot be overlooked especially in a society like India which is predominantly patriarchal. A woman is respected as a wife only if she is mother of a child, so that her husband's masculinity and sexual potency is proved and the lineage continues In an endeavor to safeguard the rights of the surrogate mother and regulate the commissioning of surrogacy, the Union Cabinet has cleared the draft Surrogacy (Regulation) Bill, 2016, to be introduced in the Parliament. Once the bill is approved it will impose a blanket ban on commercial surrogacy in India, permitting only altruistic surrogacy. The bill also seeks to legally bar any couple except a married Indian infertile couple from availing surrogacy services in India. Apparently, it is illustrative of a number of loopholes, some of which have been discussed below.

The new bill is ‘discriminatory’ and without a ‘reasonable’ basis

For a classification to be reasonable, it has pass through a test of arbitrariness laid down in. According to this test, a classification is reasonable only if it is based on intelligible differentia and this intelligible differentia must have a nexus with the object of the act sought to be achieved. As far as the bill is concerned, the basis of classification is quite unreasonable. The new law allows only and only couples who have been married for 5 years to avail the services of surrogacy provided that they have a medical document that declares them unfit to produce a child. It bars even NRIs from availing such services in India. Further, Homosexuals, live-in couples and single parents have omitted from the list. Moreover, speaking of the second condition the object of this bill is to eliminate commercial exploitation of surrogates. But this move by the government will give rise to underground surrogacy arrangements. According to Manasi Mishra, Head of Research and Knowledge Management Department, Centre for Social Research the biggest apprehension is that if the practice goes underground, tales of exploitation will increase and women will lose their bargaining power. [4]

It stifles ‘Reproductive Autonomy’

The personal decisions of the individual about the birth and babies, called 'the right of reproductive autonomy' is an integral part of 'right of privacy’ which is inherent in Article 21 of the constitution. This right includes the right to reproduce. Hence, an individual possessing such a right has a reproductive choice to beget and bear a child. It This right has a legal backing from the Universal Declaration of Human Rights 1948, article 16.1 of which says, inter alia, 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”. The Indian judiciary in a number of occasions reiterated the same. For instance, in B. K. Parthasarthi v. Government of Andhra Pradesh[5], the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma[6] , which characterized the right to reproduce as “one of the basic civil rights of man”. Even in Javed v. State of Haryana[7], though the Supreme Court upheld the two living children norm to debar a person from contesting a Panchayati Raj election it refrained from stating that the right to procreation is not a basic human right. This is also a clear recognition of the legal position that right to privacy belongs to a person as an individual but that does not mean that it is lost by marital association. The American Supreme Court in Eisenstadt v. Barid[8]   that the right to privacy   belongs to each one of the married   couple separately and is not lost by reason of their marriage. Similar propositions have been laid down in decisions such as Eisenstadt v. Barid[9]   and Loving v. Virginia[10], etc. They all establish the reproductive choice as a fundamental to individual's right to privacy. They uphold the individual's reproductive autonomy against the state intrusion.

As far as the new bill is concerned, it seeks to completely end commercial surrogacy and hence, imposes a restriction on not only the surrogate mother’s reproductive rights but also that of the commissioning parents who would want to avail the services. Hence, the Bill is not in tandem with Article 21 of the Constitution as it interferes with the right of reproductive autonomy that is entailed in the right to personal liberty. The state cannot decide the mode of parenthood and “it is the prerogative of person(s) to have children born naturally or by surrogacy”.
Another contention that is raised is that the said bill seeks to ban surrogacy when the technology permits. Article 15 of International Covenant on Economic, Social and Cultural Rights recognizes the right of all persons to benefit from scientific progress and its application. The right to benefit from scientific progress is important because it is through scientific investigation that the most modern forms of contraceptives have been created, just as scientific progress has made the present maternal and child mortality and morbidity unnecessary.[11]

It violates the ‘Right to Livelihood’ and ‘Right to work’ of the surrogates

The Hon’ble Supreme court in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni[12], came to hold that “the right to life” guaranteed by Article 21 includes “the right to livelihood”. The Supreme Court in Olga Tellis v. Bombay Municipal Corporation[13], popularly known as the “Pavement Dwellers Case “a five judge bench of the Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood. That the court in this case observed that:

“The sweep of right to life conferred by Art.21 is wide and far reaching. It does not mean, merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect if the right to life. An equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.”

Commercial surrogacy is a booming industry in India with legions of childless Indian and foreign couples looking for a low-cost, legally simple route to parenthood. While the Indian government has been pushing the country as a medical tourism destination, wealthy foreigners paying Indian Surrogate Mothers to have babies and use Indian womb to fulfill their dream of parenthood.[14] But an abrupt ban on surrogacy has had an adverse effect on their incomes. Imposing ban on commercial surrogacy will amount to denial of attractive rates to surrogates. Most surrogates come from very poor background where they lack in fulfilling their basic necessities. The amount paid to them for surrogacy is used by them to fulfill these basic needs and further raise their standard of living. Further these women earn around 10 times more than their husband. Hence denying them this opportunity would be equivalent to denying them a better life for themselves and their families.[15] The ban on commercial surrogacy is also ultra vires the fundamental right guaranteed under article 19 (1) (a) of the constitution. A large number of surrogates will become unemployed as a consequence of the said ban. There are possibilities that they might resort to other morbid jobs such as prostitution. An analogy can be drawn from decision of the Maharashtra government to shut down dance bars in Mumbai, whereby its ground were that those women were forced into prostitution and that a lot of them were unemployed. The Hon’ble Supreme Court then invalidated the ban stating the following-The end result of the prohibition of any form of dancing in the establishments covered under Section 33A leads to the only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all the dance bar establishments have literally closed down. This has led to the unemployment of over 75,000 women workers. It has been brought on the record that many of them have been compelled to take up prostitution out of necessity for maintenance of their families. In our opinion, the impugned bill has proved to be totally counterproductive and cannot be sustained being ultra vires Article 19(1)(g).[16]


Hence the new bill which aims at curbing exploitation of the surrogates requires more thought. It will adversely affect women who rent their womb to improve their financial condition.

The said imposition is suggestive of the failure of the Government to regulate surrogacy arrangements at various levels. The Hon’ble Minister for External Affairs was recently quoted saying that the government does not recognize live-in relationships and that it is in contravention to our ethos and values.[17] The Government seems to have forgotten that the live-in relationships have a legal recognition in our country. Also, it is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party who seeks to deprive the relationship of legal origin."[18] Where the judiciary endeavored to stride forward, the government took a gigantic leap backwards. Even the homosexuals have not been given a place in the list. The most fundamental human ability which is the ability to a love and raise a child cannot be deemed to be absent in all the couples except heterosexual married couples.

[1] P.Geetha vs The Kerala Livestock Development ... on 18 June, 2014

[2]Law Commission of India, 228th Report

[3] ibid

[4]Avni Shrivastav, September 1, 2016

[5] AIR 2000 AP 156 (DB)

[6] Skinner vState of Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942)

[7] AIR 2003, SC 3057

[8] (1972) 405 US   438)

[9] (1972) 405 US   438)

[10] (1967-18 L Ed 2d 1010)

[11] Reproductive rights are human rights , A handbook of institutions  united nations human rights office of the high commissioner

[12] AIR 1983 SC 109: (1983) 1 SCC 124

[13] AIR 1986 SC 180

[14] The Express Tribune, February 25, 2013


[16] 2013(5)ABR222, AIR2013SC2582, 2013(5)ALLMR392

[17]Moushumi Das Gupta, Hindustan Times, New Delhi, Aug 24, 2016

[18]  Sandip Roy, The Huffington Post, August 25, 2016

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