Last week, the Surrogacy (Regulation) Bill 2016 was cleared by the cabinet and is to be introduced in the winter session of Parliament. The bill, which sparked widespread debate across the country and in all major sections of the media, seeks to ban commercial surrogacy in an attempt to prevent the exploitation of women and protect the rights of children born through surrogacy. The bill has several facets to it, besides several clauses that have been justified by some, and argued and debated over by others.

According to the draft bill, couples who have been married for 5 years and are unable to conceive, can find a willing surrogate mother from among their relatives as a form of altruistic surrogacy.  Foreigners, unmarried couples, live-in couples, homosexuals and overseas Indians are banned from availing the services of a surrogate mother under this new bill. Couples who already have a child (adopted/ biological) cannot seek a surrogate child. Further, the surrogate mother must be a married woman who has already borne a child.


The various clauses included in the bill have been justified on several grounds. The minimum number of years that the couple has been married for has been fixed at 5 in order to ensure that all other methods of conception and reproductive technologies, like IVF, have been tried in that period and failed, according to Health Minister JP Nadda.

Commercial surrogacy has grown into a booming industry in India, further boosted by medical tourism and the growing number of fertility clinics. The exploitation of surrogate mothers is made possible by the lack of any comprehensive law revolving around surrogacy and children conceived through surrogacy, in India thus far. Fertility clinics and agents who serve as middlemen arranging surrogate mothers, have often been accused of pocketing money due to economically poor surrogate mothers. Besides, economically disadvantaged women have been known to rent their wombs multiple times, putting their own health at risk. The Health Ministry claims that the draft bill is in response to several complaints received from surrogate mothers.

Rights of children born through surrogacy is also an important issue. In some cases, children with mental or physical disabilities born through surrogacy have been abandoned. In one instance, an Australian couple who had twins through surrogacy, rejected one of the children and chose the other. The stringent rules in the bill, including the ban on foreigners availing of surrogacy in India, have been introduced taking into consideration such complexities. Nearly 80% of those who avail of surrogacy in India are foreigners.

Denying homosexual couples the right to parent children through surrogacy is in keeping with the fact that India has not yet legalised homosexual relationships, and does not recognise homosexual marriages. A significant step in this direction will have to be taken before the rights of children born to homosexual parents can be guaranteed.


However, inspite of the fact that certain aspects of the bill have been introduced with the right intentions, the restriction on unmarried couples and single parents from availing the services of a surrogate mother are questionable. To what extent can the government interfere with whether or not unmarried couples and those in live-in relationships can or cannot parent children? Futher, to what extent can the goverment have a say in what women do with their bodies? These are pertinent questions that may be raised about a bill that could use a certain amount of revision.


Image credits: The Indian Express



Abhinaya Harigovind

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