The Union Cabinet approved the Surrogacy (Regulation) Bill that permits a “willing’ woman to be a surrogate mother and also proposing a bill would benefit widows and divorced women besides infertile Indian couples. Here is an analysis on what surrogacy is, what is its history, why was commercial surrogacy banned in India, and what is its impact on the poor.

What is Surrogacy?

The word ‘Surrogate” finds its origin within the Latin term ‘Surrogatus’ meaning a woman who acts as a substitute for another woman. It is a method of assisted reproduction or assisted reproductive technology (ART) where on behalf of another person or couple, a woman or the surrogate offers to carry a baby through pregnancy and then she returns the baby to the intended parent(s) once it is born and also gets compensation as agreed. 

The roots of surrogacy can be traced long back in India. The world’s second and India’s first IVF (In Vitro Fertilization) baby Kanupriya alias Durga was born in Kolkata on October 3, 1978 8. Since then the field of assisted reproductive technology (or ART) has shown many developments.

Broadly speaking, surrogacy is of two types —

                             traditional and gestational.

Traditional surrogacy involves insemination of the surrogate naturally, or artificially, with the semen of the male partner of the childless couple. A child born this way is genetically related to the surrogate mother. This has several ethical, social and legal implications.

In the case of gestational surrogacy on the other hand, an embryo from the ovum and sperm of intended couple is fertilised in a test tube and transferred to the womb of the surrogate. A child born through gestational surrogacy has no genetic similarity to the surrogate mother.

Even though surrogacy was legalised in India in 2002, it was, at that time done to promote medical tourism in India and as a result, India became “the hub of surrogacy”. One of the deciding factors behind this was the fact that not only surrogacy in India was far cheaper than in other developed countries like the US where it cost approx $100,000 to have a child through a surrogate but also because there was an absence of strict laws in surrogacy here, as a result of which the process became much easier for all aspiring couples who wanted to have a child that they could call their own without having to jump through the legal hoops. As per the CII report 2012, the size of India’s surrogacy industry was $2 billion a year. In fact, India has often been termed as the “surrogacy Capital of the world”, and the surrogacy business, estimated at 400 million dollars a year, witnessed the emergence of over 3000 fertility clinics all over India. 

Research done by the World Health Organization (WHO) estimated that in 2010, 48.5 million couples worldwide were unable to have a child of their own. They suffered from infertility, which, the WHO says, is a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse. Given the advancements in medical science, couples have been trying different medical solutions to have children. Clinics in India have been offering assisted reproductive technology (ART) services such as gamete donation, intrauterine insemination (IUI), in vitro fertilisation (IVF), intracytoplasmic sperm injection (ICSI), preimplantation genetic diagnosis (PGD), and gestational surrogacy in order to meet the rising demand from childless couples who are unable to conceive naturally due to one reason or another.

While there is no denying the fact that many couples benefitted from the surrogacy facilities in India, the practice itself suffers from various lacunas which cannot be totally ignored. Due to a lack of proper legal framework, there have been many reported incidents of unethical practices surrounding surrogacy. These practices include the exploitation of surrogate mothers, abandonment of children born out of surrogacy, and the import of human embryos and gametes.

Poverty in India is one of the biggest contributors of surrogate mothers. Many poor mothers see surrogacy as an easy path to feed their own biological children despite grave implications to their own physical and mental health. These very issues have in fact resulted in widespread condemnation of commercial surrogacy. There are multiple cases where couples refuse to accept children born to surrogate mothers either due to the sex of the child or due to the fact that the child is suffering from some disability leaving these surrogates high and dry. When surrogacy first became a booming industry in India, there were no regulations in place as a result of which unsafe and unethical practices developed in response. Surrogate mothers were subjected to unethical treatment, poor living conditions, and exploitation. Due to an increased demand from international intended parents, Indian surrogacy agencies effectively ran “baby factories”. Here, Indian women were forced to live until they gave birth to the intended parent’s babies with no consideration to their own health. It was also seen that the surrogates in India received a fraction of the expenses that intended parents paid the surrogacy agency, however, their poverty and lack of education drew them again and again into the surrogacy process. As a result, their health declined as they effectively became “baby-making machines” year after year. The surrogate mothers did not even receive the kind of supportive services that they need for themselves and their family during this emotional journey. Due to all these reasons, the Indian government attempted to take steps to make the process safe for all involved .

In 2016, Surrogacy (Regulation) Bill, 2016 was proposed in the parliament. The Bill provisioned the establishment of national and state-level surrogacy boards. Further, only heterosexual Indian couples, legally married for five years, could avail surrogacy, with precondition of proven fertility certified by the recognized medical practitioner. But the bill lapsed in the Lok Sabha due to some flaw in the laws. Then, Surrogacy (Regulation) Bill, 2019 was reintroduced and passed by the Lok Sabha which was referred to the Select Committee of Rajya Sabha. The latest Bill is incorporated with all the recommendations of the Selection Committee and the Union Cabinet has approved it as the Surrogacy (Regulation) Bill, 2020. The Bill, however, comes with a blanket ban on commercial surrogacy and limiting altruistic surrogacy. It bans the overseas, foreigners, unmarried couples, single parents, live-in partners, and gay couples from commissioning surrogacy.  The purpose of the bill is to affirm effective regulation of Surrogacy, prohibit commercial surrogacy, and allow ethical surrogacy. And it will also prevent the exploitation of surrogate mothers and children born through surrogacy.

The Select committee also studied the best practices in surrogacy globally, keeping in mind Indian needs. In the United States and Argentina, surrogacy requests are decided by independent surrogacy committees. In the United Kingdom, Netherlands, Ireland, Denmark, Belgium, South Africa, Australia, Canada and Greece, only altruistic surrogacy is allowed. Commercial surrogacy is legally allowed in countries like Russia, Ukraine, and Thailand. In France, Germany, Spain, Sweden, Italy and Iceland, surrogacy is banned in all forms.

The Surrogacy (Regulation) Bill is an ethical, moral and social legislation as it protects the exploitation of the surrogate mother and protects the rights of the child born through surrogacy. It seeks to constitute a national surrogacy board, state surrogacy boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy.

To begin with, the couple seeking surrogacy will have to provide compelling condition for wanting a child through surrogacy. They have to be Indians, but can also be non-resident Indians, persons of Indian origin or overseas citizen of India. The surrogate needs to be married and have her child as some procedures of surrogacy may lead to infertility. Single women cannot opt to have a child through surrogacy, but exceptions have been made for widows and divorced women if they obtain a certificate of recommendations from the National Surrogacy Board. An insurance coverage for 16 months is proposed for the surrogate mother to take care of all her medical needs in the case of emergency conditions/complications. Surrogacy clinics cannot undertake surrogacy-related procedures unless they are registered with the appropriate authority.

Surrogacy is a blessing for many childless couples. The bill tries to ensure that while childless couples get what they want, nobody, including the surrogate mother and the children born out of surrogacy, suffer. Today, surrogacy is not only a need of the society, but is also the last ray of hope for infertile couples.

Dr. Swati Jindal Garg

Dr. Swati Jindal Garg


Advocate on Record practicing in the Supreme Court of India, and has been writing on various legal issues in reputed journals and legal magazines and newspapers.

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