Only altruistic surrogacy legal in India

Growing instances of infertility among couples encouraging them to explore other options (medical and non-medical) to have a child. One out of every six couples is dealing with the issue of infertility due to various reasons as per the Indian Society of Assisted Reproduction. In India, approximately 27.5 million couples are suffering from infertility who are trying to conceive.

Increasing instances of infertility rate and medical advancement paved the way to surrogate mothers or surrogacy. The word ‘surrogate’ means ‘substitute’, surrogate-mother described as an arrangement where a woman (the surrogate mother) agrees to become pregnant and bear a child for another person or persons (the commissioning parents) to whom the custody of the child will transfer directly after birth.

Surrogacy flourished as a multi-million-dollar industry in India attracted couples dealing with infertility across the word, the absence of defined surrogacy law and cheap medical treatments helped this industry to flourish most in India.

A study conducted by Centre for Social Research entitled ‘Surrogate Motherhood Ethical or Commercial’ says that majority of surrogate mothers were working as house-maids or domestic helper and earring rupees 1000 to 3000 per month, living in a nuclear family in a rented house. These statistics clearly indicate that poverty and low earning capacity are the driving factors for women to commercial surrogacy.

In many views, surrogacy is similar to baby selling and that a law comparable to the one prohibiting the sale of human organs should apply to the sale of childbearing.  The unregulated surrogacy explored many dark sides of surrogacy and it is another form of slavery.

Keeping the consequence and possible threats of commercial surrogacy in mind, which potently harmed the rights of poor women and forced them for surrogacy, a surrogacy (Regulation) Bill proposed in 2016 and passed in 2018.


Salient points of surrogacy (Regulation) bill 2016

  • As per the passed bill, only Indian couples, who have been married for at least 5 years can opt for surrogacy, provided at least one of them have been proven to have fertility-related issues.
  • Only close relatives, not necessarily related by blood, will be able to offer altruistic surrogacy to the eligible couples.
  • A woman can become a surrogate mother only for the altruistic purpose and under no circumstances, she will be paid for it, although payment can be made towards medical expenses.
  • Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, selling/import of human embryo have all been categorised as violations that are punishable by a jail term of at least 10 years and a fine of up to Rs 10 lakh.
  • Surrogacy clinics will be allowed to charge for the services rendered in the course of surrogacy, but the surrogate mother cannot be paid.
  • The new Bill has put a complete ban on commercial surrogacy.
  • It also bans unmarried people, live-in couples and homosexuals from opting for altruistic surrogacy. Now, foreigners, even Overseas Indians, cannot commission surrogacy.
  • Surrogacy regulation board will be set-up at both Central and State-level.
  • The law will be applicable to the whole of India, except for the state of Jammu and Kashmir.
  • All Assisted Reproductive Technology (ART) clinics will need to be registered.
  • The surrogate child will have the same rights of as that of a biological child.