For the past 14 years, commercial surrogacy has been practiced in India. However, commercial surrogacy, estimated to be a $2 billion dollar industry, may soon be prohibited. On August 24, the Union Cabinet approved the introduction of Surrogacy Bill 2016, which would impose a blanket ban on commercial surrogacy. The new regulation bill only permits altruistic surrogacy, where the surrogate is a close relative of the intended parents, and is granted only to heterosexual Indian couples who have been married for at least five years.  

Surrogacy Bill 2016 was prompted by the proliferation of surrogacy clinics and concern for the welfare for women who became surrogates, a genuine concern that needed to be addressed.

There are many opponents who are speaking out regarding what they say is its innate unfairness. Some critics share that rather than protecting women, the Cabinet instead took on a dictatorial role in determining who can become parents through surrogacy.

Also disappointing is the idea that the Bill in no way protects women even in the case of “ethical surrogacy.” Reporter for The Wire, Chithra P. George, shares that there may be some looming legal and ethical concerns.

“…Law Commission of India – provides for a blanket ban on commercial surrogacy and only permits altruistic surrogacy by a close relative, who must have given birth to a child,” George writes. “This in itself is problematic as it could violate the woman’s fundamental right to livelihood – in this case through surrogacy – as guaranteed under Article 21 of the constitution. Also, the restriction that the surrogate must only be a ‘close relative’ of the commissioning parents may result in ethical issues wherein the child and the surrogate develop an intimate bond, given that both are known, accessible and related to each other.”

Critics are alarmed that this Bill could trigger an underground surrogacy trade.

Protecting women from such exploitation was one of the core reasons in propelling this Bill forward. Now, the government may actually be exacerbating this problem.

George delves deeper into the Bill, dissecting the portion which excludes same-sex couples, single individuals, and divorced persons from ever becoming a parent through surrogacy. While these definitions highlight a societal regression, the author also points out that this framework violates the ‘right to reproductive autonomy’ which was underscored in B.K. Parthasarathi vs Government of Andhra Pradesh.

Others have also criticized the bill for prohibiting couples from seeking surrogacy if they already have a child. Therefore, in cases of secondary infertility, these individuals would not be granted permission to seek the help of a relative to become a surrogate.

There is a worry that these Bill restrictions are too stifling.

Bearing that in mind, the Health Minister has told its people that any Bill revisions will address these concerns.