India had been a hub for surrogacy in the world with foreign tourists arriving to get surrogate mothers for babies. What is a surrogate mother? To be precise, one who is a substitute for the genetic-biological mother is known as surrogate mother. This practice of carrying and delivering a baby of another couple is surrogacy. Poverty had forced numerous women to go for commercial surrogacy where they rented out their wombs to foreign medical tourists who came to India to have babies. Due to increased prevalence of unethical practices by parties with vested interests who use the wombs just for commercial purposes, some regulatory steps were taken to prevent rampant misuse of the surrogate wombs.

Technically there are two kinds of surrogacy-traditional and gestational. In traditional surrogacy the lady providing her womb also provides her egg which is fertilised by artificial insemination. In the case of gestational surrogacy, the willing mother (in want of baby) provides her egg, which is fertilised and then implanted in the surrogate mother’s womb. From the commercial point of view, there are two kinds of surrogacy procedures- altruistic and commercial. Altruistic surrogacy does not involve any monetary transaction in lieu of womb whereas commercial surrogacy ensures payment to the surrogate mother. Countries like New Zealand, Australia, UK, Canada among others allow only altruistic surrogacy. Russia, some states of the USA, Ukraine allow commercial surrogacy. In countries like France, Germany, Finland, Italy and Iceland surrogacy is completely banned.

Indian council of medical research in 2005 suggested deciding of financial compensation for the surrogate mother which should be done in agreement between the commissioning parents and the surrogate mother. Observing the various malicious activities occurring under the garb of medical tourism and surrogacy, the 228th report of the Law commission of 2009 suggested regulating surrogacy in India. It specifically spelled out the allowance of ethical altruistic surrogacy in India. It also suggested banning of commercial surrogacy which has been legal in India since 2002, stating that the compensation for surrogate mothers in India ranges from 25000 to 30000 US$ which is almost one third of the compensation paid in developed countries. This in turn caused India to be a hub for surrogacy, which in turn opened market for people with vested interests who could coerce women into surrogacy. This report stated in one of its chapters that the ICMR report was not only full of lacunae but also incomplete. It suggested that financial arrangements should be made for the child in case the commissioning parents (who want the baby) die. It further recommended provision of insurance for the surrogate mother. It also identified the need to protect the identity of the surrogate mother.

The 2008 case of Baby Manji Yamada vs Union of India spurred heated debates on the issue of surrogacy. In this case, the Japanese couple who needed the child separated a month before the child was born. The legal scenarios of both India and Japan did not allow the baby to leave India. Upon the intervention of the Supreme court of India, the child was allowed to leave India with her grandmother. In this backdrop, the Supreme Court passed the judgement to legalise commercial surrogacy in India. This enhanced the confidence of the foreign medical tourists in India.

In 2016, Surrogacy bill was presented in the parliament to regulate the surrogacy practices in India. Apart from prohibiting commercial surrogacy, the Surrogacy bill of 2016, prohibited sale and purchase of embryos and gametes allowing surrogacy to infertile Indian couple. It specifically allows ethical altruistic surrogacy for Indian couple who have been married for at least 5 years and cannot conceive. A Rajya Sabha select committee had deleted this five-year requirement stating that it is too long a period to wait for baby. It requires the couple to have ‘certificate of essentiality’ and ‘certificate of eligibility’ before looking for surrogate mothers. But, there are certain criticisms against the bill. It specifically keeps the LGBTQIA community who identify themselves something other than male or female (i.e. lesbian, gay, bisexual, transgender, queer, intersexual, asexual) from the eligibility to go for surrogate babies. This shows a bias in the favour of rights of couples in a traditional heterosexual marriage set-up to have surrogate babies. The bill prohibits foreigners from seeking Indian surrogate mothers. This has the potential to dampen the medical tourism in the country. It also prohibits Indian women from going for more than one surrogacy.

Since, the issue of surrogacy is linked not only to the reproductive rights of the surrogate mothers, but also to the future of the family in need of a baby, it needs to be tackled in a more subjective and comprehensive way. Keeping out a specific group of population- the LGBTQIA, whose rights have recently been recognised by the Supreme court of India, from having surrogate babies is unfair. Who gets to decide that this group of population can not be parents? Hence the Surrogacy bill should include them as well under its ambit apart from protecting the women’s rights. Some amount of thought must also be given to the inclusion of the foreign tourists who could have babies, off course concurrently protecting the rights and the health aspects of surrogate mothers. Lawmakers should also not forget that when a particular activity, item or source of finance is regulated in a tighter way, the grey market of the that activity, item or finance source booms. Surrogacy is one such issue, where the incomes of facilities with Assisted Reproductive Technologies, the partner agencies and firms, the medical practitioners are linked to each other. One can never know whether a surrogate mother is being paid behind the scene while the surrogacy is being documented as an altruistic one. Lawmakers should think and incorporate about such grey areas while laying down the rules for such multi-dimensional practices. Recently the Cabinet has okayed the Surrogacy Bill with the above discussed features, in a right direction. But it can be hoped that the law would adapt to the fast changing socio-economic dynamics of a new India.