The Surrogacy (Regulation) Bill, 2016 which was passed on August 24, 2016 has triggered a debate whether the proposed bill has likely more cons than pros. The new Surrogacy Bill aims to protect the rights of the surrogate mother as well as the child and has banned commercial surrogacy. It only allows for “altruistic surrogacy” for childless couples who have been married for at least five years. Moreover, the surrogate mother should be a “close relative” of the couple, should be married and have borne a child of her own. Surrogacy is when a woman carries a baby for another couple and gives up the baby at birth, whereas, altruistic surrogacy can be defined as a surrogacy arrangement without transfer of funds as inducement.

The commercial surrogacy market in India has been estimated as a 2 billion dollar industry and it is foreigners who account for 80% of this market, as commercial surrogacy has only been allowed in a few countries like Russia, Ukraine and few states of USA. It was the Baby Manji case in Gujarat which had prompted the authorities to regulate the surrogacy industry in India.

The Bill has been formulated to prevent exploitation of the surrogate and that the child always has a legal status. The rights of the surrogate child will be the same as that of a biological child. An agency along the lines of the Central Adoption Resource Agency would be created to regulate surrogacy. Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, selling/ import of human embryo have all been deemed as violations that are punishable by a jail term of at least 10 years and a fine of up to INR 10 lakh. Clinics would have to maintain records of surrogacy for 25 years.

The Bill also allows couples with a mentally or physically challenged child or one with a life-threatening disorder to opt for surrogacy. This seems insensitive of the condition of the mentally or physically challenged child. It also bans foreigners, unmarried persons, homosexuals, and couples in a live-in relationship. The commercial market of surrogacy has grown due to these foreigners; it has become a livelihood for low-class income women. The commercial market was a win-win situation for both- giving the foreign couple a child and the women money to survive or maintain her livelihood.

The Bill should have addressed the issue of the middlemen who exploit these women instead of banning commercial surrogacy.  Commercial surrogacy has only developed due to the failure of the altruistic surrogacy. Also, the reason given for the banning of foreign couples was because their marriages are easy to break. This issue had only cropped up due to the Baby Manji case, where still the Baby has no legal status in any country.

Banning homosexuals and live-in relationship couples shows a very stone-age thinking of the government as allowing them would have given a certain recognition of these couples which is necessary in today’s world. The Bill also creates various ambiguous situations which have not been answered- what if the couple was orphans and has no immediate family, what if the couple had married against the wishes of their family, what if there are no eligible women for surrogacy due to age and physical inability in the family etc.

The cabinet’s decision does not appear to be in consonance with constitutional provisions. Restricting conditional surrogacy to married Indian couples and disqualifying others on the basis of nationality, marital status, sexual orientation or age, does not appear to qualify the test of equality under Article 14 of the Constitution and has no correlation with the proposed objectives of the legislation. Further, the right to life under Article 21 includes the right to reproductive autonomy — that includes the right to procreation and parenthood. It is not upon the state to decide the modes of parenthood for a person. In B. K. Parthasarthi v. Government of Andhra Pradesh, 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, which characterized the right to reproduce as “one of the basic civil rights of man”.

Banning commercial surrogacy would only give a rise to the black market of wombs.