Surrogacy: Recent Developments

Charu Priyadarshi, LLM, Chanakya National Law University

Simant Priyadarshi, LLM, UPES, Dehradun

Introduction

Surrogacy is a practice whereby one woman bears and gives birth to a child for another intending couple with the intention of handing over such child to the intending couple after the birth. The law commission of India in its 228th report had asked the central government to legislate on assisted reproductive clinics as well as the rights and obligations of the parties to a surrogacy. A P.I.L was also filed in the supreme court to ban commercial surrogacy. Therefore, the Surrogacy (Regulation) bill 2019, was introduced on 15th July, 2019, in the lok sabha. It was passed in the lok sabha on August 5, 2019.

The bill was introduced because before that surrogacy in India was highly unregulated. India had become a commercial hub for surrogacy, over the entire world. The constitution of India, under Article 21 states that no person shall be deprived of right to life and personal liberty except according to a procedure, established by law. There have been many judicial pronouncements were the apex court has clearly stated that right to life includes within its ambit a right to live a decent and dignified life. It includes the reproductive rights of both man and woman. Article 14 of the constitution also guarantees equality before law and equal protection of law. The state is under a responsibility under the “directive principles of state policy” particularly under Article 38, 39 and 47 to make legislations which promotes welfare and of its citizen. In 2008, the Indian Council of Medical Research (ICMR) developed a draft for Assisted Reproductive Technology (Regulation) Bill. The bill was cleared in the union cabinet in 2020. The ART bill regulates clinics offering fertility treatments, monitor ART procedures, and mandates the establishment of a National Board and State Boards. The ART bill, the surrogacy bill and the amendment to the Medical Termination Of Pregnancy Act and the older Pre- Conception and Pre-Natal Diagnostic Techniques Act will have a positive impact on the reproductive rights and choices of women in India. The surrogacy regulation bill regulates altruistic surrogacy and bans commercial surrogacy. The Surrogacy (Regulation) bill will prevent the exploitation of surrogate mothers. It will guarantee protection to children as well. They would enjoy the same rights as the biological child.