‘Surrogacy is technology’s way of saying life must go on’


Surrogacy means a contract wherein a woman carries a pregnancy for another couple. It dates back to biblical times.  Women throughout history have faced infertility issues. But, modern surrogacy kicked in, in the 1970s.

There are two kinds of surrogacy:

(i) traditional, where the surrogate mother and the commissioning father are the genetic parents and

(ii) gestational, where the commissioning mother and father are the genetic parents.

Traditional surrogacy takes place by artificial insemination of father’s sperms in the surrogate mother.

Gestational surrogacy was possible much later due to the introduction of in vitro fertilization (IVF). In this process, the ova of donor mother and sperm of donor father is implanted in a surrogate.

Lawyer, Noel Keane first assisted in an agreement for surrogacy in 1976. She also created an Infertility Center. Subsequently, by 1992, the number rose significantly to over 5000 births.

Law in India:

The first Indian Council of Medical Research Guidelines on Surrogacy released in 2002. However, the guidelines did not stipulate the consequences of violating such a contract. Due to the relatively low cost, India started emerging as a leader of surrogacy internationally.

The Supreme Court of India held commercial surrogacy legal in 2008 in the Manji Yamada Casewhere baby Manji was born under an agreement between a Japanese genetic couple and, an Indian surrogate mother. However, a uniform law in India to govern surrogacy, still did not exist.

Until now, the agreement between the parties and the guidelines passed by Indian Council of Medical Research on Assisted Reproductive Technique (ART) clinics were the guiding force.

The guideline was due to the 228th Report of the Law commission of India submitted in 2009 as ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy.’

However, these guidelines have been violated time and again. Most surrogate Indian mothers are from the lower class or lower middle class hankering to earn some money. Also, even though the market sprang up due to the easy and cost-effective method of surrogacy in India, many international couples have had to fight a long legal battle to get their child. Language barrier only adds to the problem.

Furthermore, cross border surrogacy leads to various problems like nationality, citizenship, rights of child, even denial of nationality to children. These are just some of the socio-legal problems faced due to uncertainty of surrogacy laws.

Relevant case laws:

In one such case in India, Gujarat High Court conferred Indian citizenship on twin babies born to a German national in Anand District. The court observed that ‘we are primarily looking at the rights of the innocent new born twins more than the right of the biological parents or the surrogate mother.’ The court looked at the laws of the U.S and Japan in passing such a decision.

NRIs began thronging to India for surrogacy and the Government believed that a lot of poor women in need of money were being exploited.

Therefore, Government of India felt a need to prepare a legal mandate and it placed the Assisted Reproductive Technology (Regulation) Bill, 2013 before the Parliament in order to tackle with this social problem.

It addressed the number of pregnancies that can be allowed to a surrogate mother, her age, compensation to be paid, framework for punishment to violators and framework for letting foreigners hire Indian surrogate mothers. There were earlier versions of the draft as well prepared in 2008 and 2010. None of these were passed.

Surrogacy Regulation Bill, 2016:

The good news is that Union Cabinet on 24th August, 2016 passed the Surrogacy Regulation Bill, 2016. The bill aims to make the process of surrogacy transparent and legal. It aims to protect the rights of the surrogate mother and child.

The 10 main changes under the Bill are:

  1. Commercial surrogacy is banned.
  2. Foreign nationals shall not get Indian surrogate mothers.
  3. Indian couples with only proven infertility in one are allowed to seek help of surrogate mothers.
  4. No payments will be made to surrogate mothers except payment of medical bill and such other bills.
  5. Women acting as surrogates can do so only once.
  6. Couples have to be married for at least five years before adopting surrogacy. Moreover, women have to be between 23-50 years old and men have to be 26-55 years old.
  7. No single, live-in couples or homo-sexual couples can avail the service.
  8. Only a close relative can act as a surrogate mother.
  9. It establishes Central Regulatory Boards and State regulatory Boards to oversee clinics and hospitals that offer surrogacy services.
  10. The bill provides legal aid to surrogate mothers.


Even though the bill claims to protect the rights of surrogate mother and child, all it actually does is to push the practice of surrogacy underground. In my opinion, if surrogacy is legal, inevitably commercial surrogacy must be legalised too.

How often do we come across women who are willing to rent their womb to another couple? Considering this, I think the provision of having only a close relative as a surrogate is rather absurd. It is only the necessitous women that are willing to act as surrogates. In fact for some families, it is the only source of livelihood.

The bill is right in allowing women to act as surrogates only once. A woman goes through a lot of physical and hormonal changes through the process of pregnancy. It affects the health of a woman both temporarily or permanently. Too many pregnancies would cost in oodles to the woman’s health including loss of life. Studies have found that multiple pregnancies could lead to cardio-vascular problems in women.

However,  expecting the entire process to take place without payment is unacceptable. This is only going to open doors to illegal activities.


The sole reason why women ignore health factors and are ready to be surrogate mothers is money and in the absence of any legal framework, these women are subject to exploitation in the hands of scores of people.

Surrogacy is about individuals and parenting of a child, so the law must linchpin choosing the right surrogate mother with the help of checks and balances. I think, the Government needs to regulate this keeping in mind the health of the surrogate mother and not restrict surrogacy based on whether it is a foreign single parent or a homosexual couple.

Picture Courtesy: Pixabay

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