Scrutinizing the Surrogacy (Regulation) Bill, 2016

Despite regular disruptions, the Lok Sabha passed the Surrogacy (Regulation) Bill, 2016, which bans commercial surrogacy in India.

This culminates a process which began in 2009 when in its 229th Report, the Law Commission of India submitted a recommendation which suggested a blanket ban on commercial surrogacy, a procedure by which a woman agrees to carry an embryo for a fee on behalf of a couple. India had become a hub for commercial surrogacy and many incidents of women being exploited had come sharply in focus. The law thus seeks to end such exploitation and regulate “altruistic surrogacy”

Women are now banned from accepting payment to don the role of a surrogate mother. The Bill clearly states no money is to be paid except the medical expenses incurred on a surrogate mother and her insurance cover. In addition to this, the surrogate mother should be a close relative of the couple in question.

Over the years, there has been a lot of deliberation and discussion over the proposal to ban commercial surrogacy in India. The detractors of the Ban have argued that pushing forward a blanket ban on commercial surrogacy in a country like India will only lead to the birth of a black market for the same. Business will be conducted underground and women will thus be exploited even more. The supporters of the Ban, on the other hand, argue that there is a bioethical problem in allowing commercial surrogacy which basically treats a woman’s womb as a commodity in the marketplace. 

The Parliamentary committee that analyzed the bill had opposed a blanket ban and deemed the Government’s efforts too over the top moralistic. The Law Commission, on the other hand, sought a complete ban. The argument put forward by the Parliamentary Committee was that a ban robs a woman of her choice and also dents a potential financial opportunity which could be encashed upon by her for her own family.

The complex nature of the Bill has attracted severe criticism as well. Keeping the ethical questions aside, the Bill reinforces the anachronistic idea of what defines a familial relationship. The law permits only close relatives to act as surrogate mothers, conveniently ignoring any pervasive inequality that may exist in families and thus keeping the surrogacy within the family may mean a woman being forced to become a surrogate against her own free will.

Homosexual couples are prohibited from commissioning surrogates with the mandate being that the couple should have been in a wedlock for a minimum of 5 years and it should be between a man and a woman. The order to decriminalize homosexuality by the Supreme Court recently thus comes under the scanner because this particular law is not in sync with the constitutional jurisprudence which decriminalized homosexuality in the first place. This is yet another attempt to discriminate against people who are not heterosexual.

Many developed countries allow commercial surrogacy and the regulations of the Bill do not align with several international laws. Women who offer to be a surrogate commercially are liable to be punished with imprisonment upto 10 years, which is the same as agents and clinics. This is another dubious clause and needs to be revisited.

Thus, while the overall aim may be to protect women against exploitation, the Bill passed in the Lok Sabha has several flaws which need to be seriously revisited and reconsidered.


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Sidharth Nair 
on 26 December 2018
Published in Constitutional Law
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