Surrogacy Bill

WEATHER THE SURROGACY (REGULATION) ACT, 2021 UPHOLDS BODILY
AUTONOMY AND GUARANTEEING REPRODUCTIVE LIBERTY?
Surrogacy is an Artificial Reproductive Technology that addresses global declining fertility rate.
In India, around 3000 fertility clinics1 cater to an estimated 30 million individuals suffering from
infertility and surrogacy accounts for 1% of total ART.2 India legalized commercial surrogacy in
2002 and various unethical activities have emerged since then. After that, the Indian Council of
Medical Research issued ethical guidelines in 2005 to govern surrogacy contracts, but in Baby
Manji’s case,3 the apex court found inconsistencies in commercial surrogacy. To regulate the
sector, legislators introduced a surrogacy bill in 2016, which was inspired from the United
Kingdom legislation that prohibited commercial surrogacy; however, the bill expired at the time.
Later in 2021 the parliament enacted the Surrogacy (regulation) Act, 2021.
The bill allows only altruistic surrogacy by a married woman who has a child and is also a close
relative.4 This provision fails to give women the deserved reproductive autonomy. The interested
surrogate should receive compensation as it might help them improve their financial situation
and reward them for the myriad of physical changes they endured. Furthermore, the bill only
allows depending on a "close relative", a term not appropriately defined to become a surrogate,
promotes "forced labour" and manipulation of females in the family. It fails to address situations
where the child is aborted and the surrogate has died or suffered from infertility during birth. The
eligibility for "intending parent" includes Indian married couples, divorced and widowed. 5
Therefore, its inapplicability on single male/female, LGBTQ+ community and live-in partners
makes it non-inclusive and inconsistent with contemporary legal developments. The requirement
of 5-year period of infertility with no child gives state the power to control reproductive goals, as
noted in B.K. Parthasarthi vs. Government of AP.6 What constitutes "infertility" is not defined as
there is no provision for third-party gamete donation and cases where female suffers from
gestational failure. There is no provision for birth certificates in the bill that reflects intending
1
PM Arathi, A Study to Understand the Legal Rights and Challenges of Surrogates from Mumbai and Delhi:Report,
NATIONAL HUMAN RIGHTS COMMITTEE ¶ 13 (Dec. 24, 2018).
2
102nd Select Committee report, The Surrogacy (Regulation) Bill,2016, PARLIAMENT OF INDIA ¶ 6 (Aug. 17, 2017).
3
Baby Manji Yamada v. Union of India, (2008) 13 SCC 518.
4
The Surrogacy (Regulation) bill, 2019, Bill No. 156 of 2019, s. 4(b).
5
See id., s. 4 (b).
6
B.K. Parthasarathi vs Government of A.P. And Others, 1999 (5) ALT 715.
parents’ name. The Birth Registration Act recognizes birthing mothers for the same, which is in
direct contradiction.7 The is also a lack of insurance coverage to protect children in situations of
child abandonment. There is no provision of "Breast banks", which is an integral part of post-
delivery care as mother's milk is essential to develop requisite immunity in a newborn. 8
However, the child is delivered to the intending mother during surrogacy.
Conclusively, the bill lacks foresight as it is not comprehensive enough to account every aspect
of surrogacy, including pre-and post-natal elements. The "eligibility certificate" and a complete
ban on commercial surrogacy violates the constitution's fundamental right to privacy and
profession guaranteed under articles 19 and 21. 9 Surrogates are a potential target of exploitation,
but the hour's need is a compensatory surrogacy contract embedded with stringent regulatory
protection. Women alone have the right to make their reproductive choice, the state's role is to
protect them. However, the present bill is majorly need-based rather than rights-based. It fails to
provide model legislation balancing the interests of all the key stakeholders involved: the
surrogate, the intending parents, and the child.
7
Registration of Births and Deaths Act, 1969 (Act No. 18 of 1969).
8
Select Committee report, The Surrogacy (Regulation) Bill,2019, PARLIAMENT OF INDIA ¶ 13 (Feb. 5, 2020).
9
State of Maharashtra v. Indian Hotel and Restaurant Association, AIR 2013 SC 2582; Devika Biswas v.
Union of India, (2016) 10 SCC 726.

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WEATHER THE SURROGACY (REGULATION) ACT, 2021 UPHOLDS BODILY

AUTONOMY AND GUARANTEEING REPRODUCTIVE LIBERTY?

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