Surrogacy Regulation Bill, 2019 – Commercial Surrogacy
Is Commercial Surrogacy valid in India?
The method of Surrogacy has always been of great importance as India is considered to be the ‘surrogacy capital of the world’. Before 2008, the commercial surrogacy was carried out in India without any efforts by the Government to set up a statutory regulatory mechanism. Though in 2005 the Indian Council of Medical Research (ICMR) formulated the guidelines, however, they did not have any statutory power, therefore these guidelines did not make much of the difference.
In 2008, a case named Baby Manji Yamda v. Union of India came before the Supreme Court in which the main issue was of obtaining the travel documents of the baby with the Japanese parents conceived and born in India through commercial surrogacy. In this, the Supreme Court stated that commercial surrogacy is valid in India.
In 2008, the Assisted Reproductive Technology (Regulation) Bill, 2008 was formulated however, the efforts were not carried out to pass that bill in the parliament. In 2014, with some modifications the Assisted Reproductive Technology (Regulation) Bill, 2014 was prepared. However, this Bill met with the same fate as the Bill of 2008 and did not see the light of day.
After this the Surrogacy Regulation Bill, 2019 was passed on 05.08.2019 with some amendments. The major change which was done was that of the complete ban on commercial surrogacy. Another striking feature is that surrogacy is sought to be restricted to a married couple to the exclusion of unmarried/ single persons and persons in live-in relationships.
The object of this bill is to curb the unethical practices connected with surrogacy and to stop the undue advantage of the surrogate mothers. The Bill comprises the definition of ‘commercial surrogacy’ and it includes all possible methods in which a surrogate mother can be exploited. Now, only a ‘close relative’ of the couple can be a surrogate mother and a woman can be a surrogate mother only once in her lifetime. The nature of surrogacy has become to be the act of without extending any benefits. Another important step that has been taken in this regard is that the Bill of 2019 prohibits foreign nationals from the purview of surrogacy services.
As mentioned above, the surrogacy services can only be availed by the married couples and single persons, LGBT, and persons who are in live-in relationships are prohibited. However, on the other hand, there is no prohibition on these classes to adopt a child. Such a situation contradicts the law of equality as mentioned in Article 14 of the Indian Constitution. While legislation can make room for reasonable classification, such classification has to bear a nexus with the object sought to be achieved by the legislation. The primary objective of the Bill of 2019 is to prevent unethical practices arising out of surrogacy services in India. Allowing surrogacy rights to a married couple to the exclusion of all others bears no nexus whatsoever this object. Therefore, such a provision cannot stand the test of constitutional validity.
The term close relative is not defined in the act, therefore it becomes difficult for the couple to first find the close relative and then agree to her to be the surrogate mother. Moreover, close relatives should include a friend as well as a family member to become a surrogate mother.