Surrogacy Laws in India

‘Surrogacy’ is primarily an agreement where a woman promises to carry a child in her womb and deliver/labor such child for another person(s), who later becomes the parent(s) of such child after his birth. ‘Surrogacy’ was initially devised to help couples who couldn’t conceive a child naturally and wanted to be parents. However, the process of surrogacy was commercialized later, and it served as a means for poor women to rent their womb for money or other essentials.  The practice of surrogacy received criticism on the ground that it promoted trafficking of babies and undermined the dignity attached to reproductive capabilities of women.  However, India legalized the practice of surrogacy in the year 2002.

Guidelines by ICMR

In India, the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS) drafted the National Guidelines for Accreditation, Supervision, and Regulation of ART (Assisted Reproductive Technologies) Clinics in the year 2005. The National Guidelines provided that the surrogate mother of the child is not to be given the status of legal mother and the birth certificate should be in the name of the child’s genetic parents.

The implementation of the aforementioned guidelines paved the way for surrogacy legislation in India.

Baby Manji Yamada v. Union of India AIR 2009 SC 84 

The first case that highlighted the need for surrogacy legislation in India is Baby Manji Yamada v. Union of India. In this case, a Japanese couple split a month before their Indian surrogate gave birth to the child. The father of the child wished to take the child with him to Japan but there was neither a provision allowing the same nor the Japanese government permitted him to do the same.

The Supreme Court allowed the child to leave India with her grandmother and thereafter, observed that surrogacy is permissible in India.

Later, in Jan Balaz v. Anand Municipality Special Leave Application No. 3020 of 2008, the Gujarat High Court too, upheld the practice of commercial surrogacy.

228th Report by Law Commission of India

In August 2009, the Law Commission of India in its 228th Report titled ‘Need for legislation to regulate Assisted Reproductive Technology Clinics as well as rights and obligations of parties to Surrogacy” discussed the proposed implementation by ICMR of the Draft Assisted Reproductive Technology (Regulation) Bill and Rules, 2008. The Law Commission Report further provided a detailed account of the Seminar on ‘Surrogacy-Bane or Boon’ conducted at the India International Centre.

Lastly, the Law Commission of India recommended that the surrogacy arrangement be governed by a contract amongst parties and such arrangement should also work for the welfare of the child and the surrogate mother. The Report also proposed that sex-selective surrogacy should be abolished and at least one of the commissioning parents should become the donor as that would reduce the chances of child abuse.

Ban on surrogacy for foreign couples

The ICMR, in its letter, dated 25.09.2015, further imposed a ban on the practice of foreign couples entering into an arrangement with an Indian surrogate mother.

The Surrogacy (Regulation) Act, 2021

The Ministry of Health and Family Welfare tabled the Surrogacy (Regulation) Bill, 2019 on 15.07.2019 in the Lok Sabha. The Bill traveled a long journey to attain the status of an Act when it received the assent of the President on 25.12.2021. The Act came into being to provide relief to the infertile couples, or couples who suffered from certain diseases (as mentioned in the Act itself), prohibit the practice of commercial surrogacy and protect children born through the practice of surrogacy.

Section 5 of the Act imposes a ban on the practice of surrogacy subject to the exceptions contained in section 4(ii), which are as follows:

i) Intending couple has a medical indication necessitating gestational surrogacy,

ii) Surrogacy is committed for altruistic purposes only,

iii) Surrogacy is not committed with a commercial purpose,

iv) Children born through such surrogacy shall not be subjected to trafficking, prostitution, or any other form of exploitation, and

v) any other condition or disease as specified by the National Assisted Reproductive Technology and Surrogacy Board.

Section 6 of the Act provides that before a surrogate mother is subjected to the practice of surrogacy, her consent must be obtained in written form while informing her of the side effects and after-effects of such procedures. Later, section 7 bans the abandonment of a child born through surrogacy and section 10 bans the abortion of a surrogate child.

Chapter IV of the Act deals with the registration of surrogacy clinics, whereas Chapter V contains provisions for National Assisted Reproductive Technology and Surrogacy Board and State Assisted Reproductive Technology and Surrogacy Boards. Lastly, Chapter VII deals with surrogacy offences and penalties related thereto. It provides that commission of commercial surrogacy, exploitation of surrogate mother, or of children born through surrogacy is punishable with imprisonment which may extend to 10 years, and a fine which may extend to Rs. 10,00,000/-. It is further provided that every offence under this Act is cognizable, non-bailable, and non-compoundable.

The surrogacy law in India, as contained in the Surrogacy (Regulation) Act, 2021 is as exhaustive as it can be in dealing with all matters like who can opt for surrogacy, who can become a surrogate mother, protection of such surrogate mother, and child born through surrogacy, prohibition of commercial surrogacy, and so on. However, questions like disqualification of a single male or female persons to opt for surrogacy might arise in the future.