Analysing Surrogacy Laws: Need and Shortcomings

Analysing Surrogacy Laws: Need and Shortcomings

Author: Sriejan V Gaur
V Year | Delhi Metropolitan Education


Surrogacy is a process wherein a substitute woman biologically gives birth to a child for another couple. The term surrogacy means when a lady conveys pregnancy and brings forth an infant for another lady. The strategies of proxy parenthood may not be new at all in the Indian Scheme. Mahabharata, for instance, talks about the 100 sons of Dhritarashtra and Gandhari.

Subsequently, the modest accessibility of work combined with high global interest has fueled the development of this industry in our country. Business surrogacy is a legitimate procedure in India since 2002. The Indian Council of Medical Research (ICMR) had also set out some favourable rules pertaining to surrogacy. Further, it forbids sex-specific surrogacy. Moreover, the said procedure requires an extra security provision for the proxy mother. This also guarantees the right of protection to the substitute mother and the benefactor.

Need for Legislation:

The administrative and legal mechanism for surrogacy procedure by all accounts has been rather muddled, agitated, and unclear. The need for a lawful framework was first witnessed on account of a famous case law i.e. Baby Manji Yamada v. Association of India & Anr.[1]

 In 2007 Dr. Patel working at Akanksha Infertility Clinic informed the Japanese couple Ikufumi and Yuki Yamada to have a substitute child. Pritiben Mehta’s help could have been taken. Pritiben underwent impregnation with the help of a blend of Yamada’s sperm and an unknown Indian lady’s egg. Unfortunately in the incoming months to come, Yamada and his partner filed a petition for legal separation. None of the Indian laws stated as to who were the parents of the child born out of surrogacy. Would it be the lady who provided her egg, Pritiben, or Yuki Yamada. In the end, the child’s custody rested with the grandmother. By keeping these developments in mind the Supreme Court felt the need for a new law for such surrogacy procedure.

Key Features of Surrogacy (Regulation) Bill, 2019:

  1. It accommodates the constitution of surrogacy sheets at the national as well as state levels to guarantee viable guidelines.
  2. It permits surrogacy to an Indian wedded couple between the age of 23-50 years (female) and 26-55 years (male).
  3. A declaration of centrality and authentication of qualification is required before proceeding with surrogacy. It also means that the couples ought not to forsake the kid conceived out of surrogacy under any condition.
  4. It additionally specifies a different qualification measure for the substitute mother. The substitute must be a nearby relative of the planning couple. She ought to between the age of 25-35 years. She should not have been a proxy before, and must be authentically and truly fit.
  5. The Bill expresses that any kid conceived out of surrogacy will be the natural offspring of the aiming couple. The newly conceived child will be qualified for all rights and benefits that are accessible to a characteristic kid.
  6. The Bill additionally looks to control the working of surrogacy facilities.
  7. The Bill accommodates different protections for proxy moms. The protection includes the time of pregnancy as well.
  8. It likewise indicates that no sex determination should be possible with regards to surrogacy.

Criticism of the Bill:

  • It prevents same-sex couples from having surrogate children.
  • The Bill furthermore dismisses the Puttaswamy judgment of the Supreme Court.
  • The capability condition under the Bill shows an impediment to the conceptive benefits of a married Indian couple. This violates Article 21 of the constitution.

The Bill still has many loopholes and legislators have ignored many pertinent issues. Some of these are as follows:

  1. In the past, there have been passing cases related to surrogacy. Suits against surrogacy, for example, the Baby Manji Yamada case, Baby Balaz case which has prompted court intercessions and mandates.
  2. Indian citizenship laws are an obstacle for the surrogate kid.
  3. The issue pertaining to twin/triplets has not been discussed.
  4. An exhaustive law that covers following points is still required :
    1. Privileges of the proxy mother should be multifarious. It should incorporate reasonable remuneration, sufficient maternal consideration, the option to abort, and an arrangement of maternity alleviation.
    2. Law needs to recommend conditions for surrogacy by consent.
    1. Life coverage inclusion ought to be there.


In the earlier decade, business surrogacy has grown tremendously in India. India has ascended as an overall point of convergence of the ‘surrogacy industry’. Countless infertile couples from worldwide are hurrying to the Assisted Reproductive Technology (ART) offices to have their own surrogate child. Surrogacy raises complex and inquisitive legal questions. Surrogacy speaks to an authentic peril to human rights. It has been totally reviled as it goes about as a channel for the maltreatment of substitute mothers.

For infertile couples, bearing children is a fundamental right yet for substitute mothers, surrogacy is a gross encroachment of human rights. In India, surrogacy is astoundingly unregulated and hardly ever watched.

[1]  (2008) 13 SCC 518

Editor: Keshav Pandey

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