This article is written by Rhea Bazaz.

Abstract

The purpose of this article is to trace the historical journey of surrogacy and analyze its progress and position in a country like India where it used to be a norm and a source of livelihood for some but is now banned commercially. The author has given a brief introduction about what surrogacy is along with its medical definition and has also mentioned how various religions look at it. While it has been mentioned in some religious texts, not all communities accept it wholeheartedly. The historical evolution of the surrogacy contract worldwide has also been discussed. The author has then gone on to talk about the phenomenon of fertility tourism in India along with its advantages and disadvantages.

The author then moved on to the various legislations and guidelines which have been passed in an attempt to regulate surrogacy, along with some landmark cases and judgments which were an attempt to bring about the welfare of the surrogate children and make surrogacy a part and parcel of Indian society. The current legislation has been analyzed in detail, with both the pros and cons being listed and in the conclusion, the author’s final opinions and suggestions have been given.

Introduction

Surrogacy is a process in which a woman agrees to carry a baby for somebody else like two homosexual people, single person or a couple who is unable to conceive. After the birth of the baby, the birth mother hands over custody and guardianship to the intended parent(s). The woman who carries a baby for another person is referred to as a surrogate or birth mother. The parent(s) of the baby born through surrogacy arrangement are called commissioning or intended parent(s).

Surrogacy has been classified into various kinds:

On the basis of Nature of Surrogacy Agreement

• Altruistic Surrogacy- The surrogate mother receives no financial consideration for her pregnancy or for handing over the baby to the intended parents except for the necessary medical expenses. This usually happens when the surrogate mother is a relative of the intended parents.
• Commercial surrogacy- The surrogate mother is paid apart from the necessary medical expenses. This usually happens when the surrogate mother is not related to the intended parents.

On the basis of Nature of Fertilization

• Traditional Surrogacy: The surrogate mother carries the child for the full term and delivers it for the couple through artificial insemination. The surrogate mother is the biological mother of the child.
• Gestational Surrogacy: In this, the eggs of the mother are fertilized by the father’s/donor’s sperm and then the embryo is placed into the uterus of the surrogate. In this case the biological mother will be the one whose eggs are used and the surrogate mother is the birth mother of the child.

Historical origin

Although Indian society has not always been open about the idea of surrogacy, it has been practiced even in ancient times. 

In the Mahabharata, Gandhari, the wife of Dhritarashtra, conceived but the pregnancy went on for nearly two years after which she delivered a semi-solid mass. Bhagwan Vyasa found 101 cells which were normal in the mass. These cells were put in a nutritious medium and grown in-vitro the entire term. Out of these, 100 developed into male children (Duryodhana, Duhshasana and other Kauravas) and one as a female child called Duhsheela. The story relating to the birth of Drishtadyumna and Draupadi also relates to the birth of a child outside the mother’s womb and without the occurrence of proper fertilization. King Draupada had a rivalry with Dronacharya and wanted a son strong enough to kill Drona. He was given medicine by a Rishi who collected his semen, processed it and then put it in a yajnakunda (offering) from which Dhrishtadyumna and Draupadi were born. During the seventh pregnancy of Lord Krishna’s mother, Devki, the embryo was transferred to the womb of Rohini, the first wife of Vasudeva to save him from being killed by Kansa. 

In Islam, there is the concept of Maqasid al- Sharī‘ah or purposes of the Law which are Hifz al- Dīn (Protection of Religion), Hifz al-Nafs (Protection of Life), Hifz al- Nasl (Protection of Progeny), Hifz al-Aql (Protection of Mind) and Hifz al- Māl (Protection of Wealth). This classification talks about the basic necessities of human beings which need protection, preservation and promotion. As Islam encourages reproduction, it supports treatment of infertility and includes care for pregnant women. It further entails preservation of lineage. Every child should know about and be related to both his parents. Hiring a ‘womb’ for procreation is a very new concept in Islamic jurisprudence and is not acceptable according to the ethics of Islam since surrogacy involves the use of a donor sperm, a foreign element in the woman’s womb which leads to mixing of lineage. According to Mufti Sheikh Ahmad Kutty, an Islamic scholar, the introduction of male sperm into the uterus of a woman he is not married to goes against the desires of Allah.

In a story in the Bible, Sarah the wife of Abraham was unable to have children. She made her handmaid, Hagar, have a child with Abraham by copulation. Here, Sarah got jealous and the surrogate mother refused to part with the identity of the child. As a result, both the surrogate mother and the child got ousted out of the house. Genesis 30 tells us the story of Rachel who told her husband Jacob to sleep with her maid Bilhahin in order to produce children and hence, build a family. Jacob subsequently goes on to have more children with his concubines and both his wives, Leah and Rachel. Out of 12 sons, 10 are jealous of Joseph, the ‘special’ son of Rachel and they conspire to sell him as a slave. 

As both the stories above point out, a typical and exclusive sexual relationship between a man and woman was God’s desire. Enlisting the help of a surrogate mother led to a breakdown of the families and a dysfunction in general. The general message was that not trusting God and taking things in one’s own hands could cause chaos. 

In 1975, Noel Keane, a lawyer brokered the first ever legal surrogacy contract in history. Here, the surrogate mother did not receive any compensation as per the agreement. After this, Keane established his own infertility centre which arranged many surrogate pregnancies in the United States. In 1978, Louise Brown was the first human to be born via in vitro fertilization. Four years later, her younger sister, Natalie Brown, was also conceived by IVF and became the world’s fortieth child to be conceived in this way. In May 1999, Natalie was the first human born after conception by IVF to give birth without IVF. Only a few months after the birth of Louise Brown, Dr. Subhas Mukhopadhyay produced the world’s second test tube baby ‘Durga’ in India. However, he was stopped from working further on in vitro fertilization and was transferred to another area. He was also not allowed to go to Tokyo to present a paper. Due to frustration and poor health, Mukhopadhyay committed suicide on June 19, 1981.

On August 16, 1986, going by the scientific records, ‘Harsha’ became the first human test-tube-baby of India. T.C. Anand Kumar, Director of Institute for Research in Reproduction (IRR) of Indian Council of Medical Research (ICMR) was credited for this achievement. In 1997, when he went to Kolkata to attend a Science Congress, all the research documents of Mukhopadhyay were handed over to him. After scrutinizing those documents and having discussions with Durga’s parents, he became certain that Mukhopadhyay was responsible for the creation of the first human test-tube-baby in India. By T.E. Anand Kumar’s efforts, Mukhopadhyay was credited as the architect of the first Indian test tube baby in a document related to the subject of artificial intercourse in ICMR. 

In 1980, the first surrogacy agreement including compensation was made between a surrogate and the intended parents. Elizabeth Kane (a pseudonym) received $10,000 to carry athe baby for the couple. In spite of having completed her family and having placed a child for adoption, Kane was unprepared for the challenges she faced after the delivery and emotions attached to the whole process. She regretted her decision to become a surrogate and wrote about it in a book called Birth Mother.

Fertility tourism in India

Commercial surrogacy was legalized in India in 2002. There is a clinic at Kaival Hospital in Anand which used to put infertile couples in touch with the local women, took care of the women during the pregnancy and even offered counseling after the delivery. The women used to carry children for couples coming from countries like the US, Taiwan and Britain. This phenomenon was called ‘wombs for rent’. India became a major hub for commercial surrogacy for international parents due to the availability of a large labour pool and excellent medical facility at relatively low costs. 

Dr Patel’s centre was believed to be unique as it offered a one-stop service. While other clinics requested the couple to bring in their own surrogate, in Anand the couple just provided the egg and sperm and the clinic chose the surrogate from a waiting list of tested and ready surrogates. A rotating group of surrogate mothers used to live together in a home rented by the clinic and supervised by a former surrogate mother. They would be occupied with English or Computer classes or would receive their husbands and children as visitors during the day. The surrogate mothers and the parents signed a contract in which the couple promised to cover all medical expenses in addition to the woman’s payment, and it was stated that the surrogate mother would hand over the baby after birth.

The couples flew to Anand for the in-vitro fertilization and again for the birth. Most couples ended up paying the clinic less than $US10000 for the entire procedure, including fertilization, the fee to the mother and medical expenses. Counseling used to be a major part of the process. The women would be told to think of the pregnancy as ‘somebody’s child coming to stay at their place for nine months’. According to Dr. Patel, while none of the mothers had a difficult pregnancy or any medical complication, the clinic is diligent in its medical investigations and does not take any risks. 

However, this practice was criticized on many grounds. Critics believed that the surrogates were often exploited as they were made to go through the struggles of pregnancy for very less money. An argument against this criticism was that this practice benefited both the parties- it gave one party the chance to have their own child and the other to earn a sum of money which they might not have been able to earn otherwise. From a liberal point of view, it could be argued that it highlighted the woman’s right to autonomy over her body which also included informed consent to volunteer her body for any activity or cause whether it was physical labor, sexual services, organ or tissue donation, or commercial surrogacy.

On the other hand, in a low-income country like India, where these women mostly came from poor families and were not completely aware about their rights, it was rational to argue that their consent came from a sense of desperation and helplessness Due to their financial and educational backwardness, this consent could also lead to exploitation. In addition to low compensation, there were also the physiological side-effects of pregnancy like migraines and back pain, diabetes, high blood pressure, or permanently impaired fertility and death in extreme cases. There was also a risk of the surrogate getting emotionally attached to the child. Postpartum concerns included scarring and body pain from cesarean sections, as well as postpartum depression. Additionally, there was also a chance of disapproval from their communities and rejection by their husbands. These types of risks were seldom discussed when the consent of the surrogate was obtained so it was debatable whether the consent was informed or not. 

Economically, one common argument against medical tourism was that the traveler spent his or her money in a foreign country instead of their home jurisdiction. Their expenditure included both medical and travel expenses. This was a very large amount, resulting in loss of income for the home country. Also, for a nation like India, the potential financial benefits arising out of this lucrative industry were tremendous. However, while it is the Indian citizens who funded medical resources and infrastructure, it was the foreign clientele that reaped the rewards. This was one of the most common criticisms of medical tourism: that those who pay taxes within the nation should be the ones to benefit from the efforts of doctors whose education and infrastructural support were taxpayer-subsidized.

Keeping in mind the criticism mentioned above, the government of India decided to ban commercial surrogacy in the year 2013.

Legislations

The Law Commission of India submitted the 228th report on surrogacy in India and made the following observations, based on which the Indian Council of Medical Research (ICMR) framed its guidelines in the year 2005 and drafted Assisted Reproductive Technologies (ART) Bill in 2008: 

• The Bill mandated that a foreigner or foreign couple not residing in India or a non-resident Indian individual or couple, seeking surrogacy in India to appoint a local guardian who would be legally mandated to take care of the surrogate during and after pregnancy till delivery of the child to the foreigner or foreign couple or the local guardian. The commissioning parents or parent were legally bound to accept the custody of the child irrespective of any abnormality that the child may have, and the refusal to do so was deemed an offence. A surrogate mother was to relinquish all parental rights over the child. The birth certificate in respect of a baby born through surrogacy was to bear the name(s) of genetic parents/parent of the baby.
• The child born through surrogacy was to be presumed as the legitimate child of the couple or the single person, as the case may be. If the commissioning couple separated or got divorced after going for surrogacy but before the birth of the child, then also the child was to be considered the legitimate child of the couple.
• The Bill did not allow the couple or individual to utilize the service of more than one surrogate at any given time. 
• According to Section 10 of the Indian Contract Act, all agreements are contracts, if they are made by free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void. Therefore, if the surrogacy agreement satisfied these conditions, it was an enforceable contract. Thereafter, under section 9, Code of Civil Procedure, it could be the subject of a civil suit in a civil court for adjudication of all disputes related to the surrogacy agreement and for a declaration/injunction as to the relief prayed for.
• It was mandated that one of the intended parents should be a donor as well, since it would help in developing a bond of love and affection with the child due to the existence of a biological relationship. It was also thought that the chances of child-abuse and neglect, often observed in cases of adoptions, would be reduced. In case the intended parent was single, he or she was supposed to be a donor to be able to have a surrogate child. Otherwise, adoption was the method used to get the child if the biological (natural) parents and adoptive parents were different.

The Assisted Reproductive Technology Bill, 2013 is still pending before the Parliament and is yet to be passed. This Bill bans only allows the exchange of money for medical expenses of the mother child and no other compensation. This means that only altruistic surrogacy will be allowed and commercial surrogacy will be banned- including sale and purchase of human embryo and gametes. It also provides for the establishment of a National Surrogacy Board at the central level and State Surrogacy Boards in the states and union territories in order to regulate surrogacy in India by providing guidelines for the same. 

Although this Bill is still pending, the Parliament passed the Surrogacy (Regulation) Bill in 2018 which has the following features:

• Commercial surrogacy is banned and altruistic surrogacy is allowed for Indian married couples who are infertile.
• The surrogate mother and the couple must be close relatives. However, the Bill does not define who the ‘close relative’ may be.
• A National Surrogacy Board and State Surrogacy Boards at the national and state levels must be set up in order to regulate the practice of surrogacy.
• The surrogate mother and the couple need eligibility certificates from the appropriate authority in order to proceed.
• The Bill only allows Indian couples to conceive through surrogacy. Foreigners, Non-Resident Indians, Overseas Citizens of India, single people, homosexuals, live-in couples and married couples who already have a child are not allowed to avail of surrogacy except if they have a child who is physically or mentally challenged or is suffering from a life-threatening disease.
• For altruistic surrogacy, the age of the woman must be 23-50 years and the age of the man must be 26-55 years. The couple should be married for at least five years.
• The surrogate mother should be aged between 25-35 years and can act as a surrogate mother only once.
• Any order concerning the parentage and custody of the child to be born through surrogacy is to be passed by a Court of the Magistrate of the First Class.
• All surrogacy clinics shall be registered under this Act after the Appropriate Authority is satisfied that such clinics can provide facilities and maintain equipment and standards including physical infrastructure and diagnostic facilities as may be prescribed in the rules and regulations. These clinics shall maintain all records for the next 25 years. 
• The Board shall constituted by the Minister in-charge of the Ministry of Health and Family Welfare who shall be the Chairperson, Secretary to the Government of India in- charge of the Department dealing with the surrogacy matter who shall be the Vice-Chairperson and three female Members of Parliament, out of whom two shall be elected by the House of the People and one by the Council of State as Members.
• There shall be a provision of a gestation period of ten months from the date of coming into force of this act to protect the wellbeing of already existing surrogate mothers.
• The couple shall not abandon the surrogate child under any condition.

Relevant case laws

There was a complicated case in the year 2008 in which a Japanese couple, Mr. and Mrs. Yamada, had found entered into a surrogacy agreement with a woman in Gujarat. There were some marital problems between the couple. After the birth of the child, she was moved to a hospital in Jaipur, where she was cared for including being breastfed by a woman. Mr. Yamada had to return to Japan due to the expiration his visa and after the divorce was finalized, Mrs. Yamada had abandoned the infant. An NGO called Satya had filed a habeas corpus writ in the Supreme Court and had submitted that there were no laws governing surrogacy in India and a lot of irregularities were being committed in the name of surrogacy. A money-making racket was being operated. The Court directed that the petition be looked into by Commission for Protection of Child Rights as there was no public interest to make it maintainable as public interest litigation. Subsequently, a passport was issued to the child so she could join her father in Japan.

In another case, there was a German couple, Mr. and Mrs. Balaz, who had come to India for the purpose of conceiving via surrogacy. They entered into a surrogacy agreement with a woman from Gujarat. However, the body of Mrs. Balaz was not in a condition to even produce ova. So the process of fertilization was brought about with the sperm from Mr. Balaz and donation of ova by an anonymous woman. When the surrogate mother gave birth to twin boys, there was a question regarding their nationality. Here, the court held that since the wife had neither donated the ova nor carried the embryo inside her body, she was not the biological mother.

On the other hand, the surrogate mother had carried the embryo inside her for 9 months and nurtured the babies through the umbilical cord; she was considered the biological mother. Keeping in mind the right to privacy of the egg donor, there was no discussion regarding her identity or her right over the child and it was held that merely donating ova did not make her the biological mother. Since both the surrogate and egg donor were Indians, the twins were also conferred Indian nationality. Mr. Balaz was shown to be the father in the birth certificates of the twins and since the surrogate was an Indian national, the twins were entitled to get Indian citizenship under Section 3(1)(c)(ii) of the Citizenship Act, 1955.

In one case, the issue was provision of maternity leave for female lecturers under the Maharashtra Civil Services (Leave) Rules, 1981. The petitioner had given birth to a baby boy through surrogacy and after the birth, applied for maternity leave. However, the Joint Director of Higher Education, Nagpur had communicated that this leave is not available in case of birth via surrogacy. The petitioner challenged this in court. The petitioner cited a Government Resolution dated 28.07.1995, which talks about granting maternity leave to the adoptive mother in the same manner as is available to a natural mother. The court said that maternity leave is provided to ensure a healthy and relaxing environment for both mother and child. It is a social justice provision for women.

This provision is there to ensure that there is sufficient time for mother and child to bond. It is said that being a mother is one of the most rewarding jobs on the earth and also one of the most challenging. A commissioning mother would have the same rights and duties towards the child as the natural mother. A woman cannot be discriminated against on the grounds that she has given birth to a child through surrogacy. Though the petitioner had not given birth to the child, it was in her custody after birth and a newborn baby cannot be left with people other than the mother during the initial, most formative years. A mother would also include a commissioning mother or a mother securing a child through surrogacy. Any other interpretation would go against the objective of providing maternity leave to a mother. 

In one case, an American couple had travelled to India for the purpose of surrogacy. They had already purchased 8 embryos which were in the custody of the hospital in Pawai after completing all the necessary requirements. However, after the embryos were brought and kept at the hospital, they came to know that they are now barred from entering a surrogacy agreement in India due to a change in policy. They requested the court to allow them to take back the embryos to any other country where the surrogacy is allowed. They were then informed that the same cannot be permitted as export of embryos has also been prohibited. The court directed the petitioners to file their application before the Director General of Foreign Trade (Export Cell) through their counsel and the authority was directed to make a decision within 3 weeks of receiving the application. 

In another case, it was held that those foreigners who had already started the surrogacy process when the ban on commercial surrogacy was announced were permitted to continue the process, provided they had completed all the necessary formalities. The Government of India is supposed to fix the stages up to which the ban is to apply. 

The Supreme Court also reiterated that a woman who has given birth via surrogacy is entitled to maternity leave and this case also talked about granting paternity leave of 15 days to the father of the surrogate child.

Analysis of the current scenario

As discussed above, the Surrogacy (Regulation) Bill, which outlawed surrogacy, was finally passed in 2018. The Bill was criticized heavily by many experts although it was passed with good intentions. The merits and demerits of the Bill are:

Merits

• By imposing a ban on egg donation and sale of embryos, this will help in curbing child trafficking and other unlawful practices.
• In commercial surrogacy, many poor women are exploited and are made to go through with the pregnancy at very low rates. In such cases, since the woman lacks awareness and finances, she is not fully aware of what she is being made to do and the consent obtained is not with complete knowledge.
• In this industry, it is often the middlemen who execute the surrogacy agreements and take a large amount of money paid by the parents, and only about 25% of the sum goes to the surrogate mother. This Bill is needed in places in places like Gujarat, where ‘baby farms’ exist, i.e. underprivileged women are collected and distributed as surrogates to potential parents.
• By including the provision that the intending couple should be married for at least five years, it is ensured that there is no marital discord and the couple is in a position to provide a stable home to the surrogate child and there shall be no custody battles for the child later on.
• By barring live-in couples from going through commercial surrogacy, the Bill ensures that only those couples who have a stable, long-term relationship and can provide a secure and permanent home to the child are allowed to go through with surrogacy.
• Those women who volunteer to become surrogate mothers often face ridicule and social boycott from the other members of their village or community. By passing this will, that ridicule can be avoided.
• This Bill promotes adoption. There are many children in orphanages that need homes and they can only be adopted till the age of 15 so adoption can be an option for those couples who already have children and those who are past the age limit set by this Bill.

Demerits

• Although this Bill promotes adoption as an option, the process involved in adopting a child is time-consuming and tedious. There is still a stigma attached to adoption in Indian society and families often prefer to adopt boys so they can get an heir. The whole process of adoption needs to be streamlined and simplified if it is to be promoted amongst the people. 
• The Bill ignores the right a woman has over her body. If a woman has consented to allow her body to be used in this process after knowing all the facts and risks and is being paid adequately for it, then there is no need for any legislature to decide how she should use her body. In European countries like Netherlands, sex work is legally recognized. Sex workers also have constitutional rights which are enforced strongly, unlike in India. Similarly, surrogacy laws should be framed in such a way that woman fully consents to the agreement and there is no chance for her to be cheated. There were a lot of women who were dependent on this practice as a source of income. Putting a complete ban on this practice has led to a loss in earning opportunity for them.
• Egg donations and purchase and sale of embryos have been banned in order to curb child trafficking and nab the illegal surrogacy racket. However, a complete ban will not fix the situation. Policies need to be framed and laws need to be implemented in such a way that the issue is resolved without banning the entire industry.
• The demand for surrogacy is not going to disappear suddenly because of the ban and the Bill will only lead to the creation of a black market that might increase the chances of exploitation of surrogate mothers and they will not have any platforms to approach for legal recourse in case of a breach of contract. Wherever there is a lacuna in the demand and supply for any product and there is a ban on that product, illegal markets emerge and they tend to thrive due to high prices. The practice of illegal organ trade is one such example. In spite of restricting donations of organs to only close relatives and other altruistic donors, India is still one of the biggest organ markets, especially for kidneys. The government should ensure that the surrogates are properly informed about the medical and economic impacts of surrogacy. It should also be ensured that all surrogacy contracts mandatorily talk about the medical care and nourishment of the surrogates not only during the pregnancy but also during the post-partum period. The decision to rent or sell one’s vagina or womb should be that of the owner only and nobody else, not even the government, should get to govern the woman’s own body. If the government cares so much about protecting women from exploitation, it should try its best to eliminate the circumstances which force a woman to rent out her womb.
• The biggest question that needs to be answered is how non-payment for surrogacy would prevent exploitation. Defining exploitation from the point of view of money is a narrow way of looking at the social reality. There is no guarantee that the altruistic surrogate mother will not be coerced to bear the child. One advantage of allowing commercial surrogacy is that once the surrogate mother is paid all her dues and the baby is delivered to the parents, they can keep her out of their lives for good. There will never be any question of bonding between the child and its birth mother since they will hardly get any time together. However, this Bill insists on altruistic surrogacy only through close relatives which will ensure that the child and its birth mother will remain in close proximity all their lives. This will create a complicated situation full of emotional and ethical dilemmas. Thus, it is better if there is a certain amount of detachment in such procedures. Moreover, there is no guarantee that there will be no exploitation of a poor woman by the rich commissioning parents in the altruistic surrogacy. Also, receiving a form of payment would help the surrogate mother in developing a psychological detachment from the foetus and would give her more incentive to part with the child after birth. It is also impossible for any official authority to track ‘gifts’ being exchanged between the parties in the name of paying ‘compensation’. 
• One of the most controversial points of this Bill is that it bars homosexual couples from going through with surrogacy. Since the concept of gay marriage is still alien to Indian society even after decriminalizing sexual conduct between homosexuals, surrogacy was the only opportunity for them to raise children of their own. But by adding this provision of banning homosexuals, the government clearly shows its bias against the LGBT community and this proves that Indian society is yet to accept anything apart from heterosexual relationships. This provision is the last straw which shows that homosexuals still do not have any rights to be accepted, get married or to start a family, along with the risk of persecution.
• Critics feel that this Bill seeks to discriminate on the basis of marital status, age, sexual orientation and nationality. A rational nexus should exist between the objective of passing a law and the actions allowed as a result of such discrimination. There appears to be no rational nexus between preventing a specific class of couple from entering a surrogacy agreement and prevention of exploitation of women. Since the nexus is deemed unreasonable, the constitutional validity of such a provision is questionable. Right to Life under Article 21 of the Constitution includes the right to reproduction and parenthood and also the right to privacy. The government cannot interfere with how people decide to reproduce and infertility should not be made a condition necessary for surrogacy. Moreover, qualifications like being married for five years are arbitrary. The question is why a limit of five years has been decided and why not four or six. This arbitrariness goes against the principles of article 21 which is against making arbitrary laws.
• The Bill denies the right of surrogacy to couples in a live-in relationship. Although the female partner has the same rights of maintenance as the wife does and there can be a presumption of marriage if the couple has been living together for a very long period of time. The reasoning provided is that in case the couple separates, there will be no stability for the child. But the same can be said for married couples as there is a possibility of divorce. On similar grounds, it can be said that once the mother dies, the child should be taken away since both parents are required to provide a nurturing environment but one father is never deemed to be not enough for a child. Similarly, non-genetic, single people and those living together should be trusted to look after the child. After all, the fact that they are willing to contribute the time and money to go through this whole process shows that they are determined to become parents and do as good a job as they can.

Conclusion

From being mentioned in the ancient texts to becoming an accepted practice and a source of income for a country to being regulated with stringent guidelines, the practice of surrogacy has gone through many changes which reflect the position of society at that point of time. This was a practice which was very common during the ancient times yet misused as we can see in the example of Kunti who got a boon which was very inappropriate for her age. Between the years 2002 to 2018, India had become a hub for commercial surrogacy and this practice was unregulated since there was no legislation governing surrogacy. However, commercial surrogacy was banned in 2018 and a lot of regulations were put in place. However, instead of banning an idea totally, regulations should be made so that the idea doesn’t become exploitative or doesn’t get misused. A woman should be saved from exploitation but she should be the final decision-maker as far as her body is concerned.

If we look at how abortions were carried out before they were made legal, we would realize that there is always a loophole in each and every law which can be exploited and would render the purpose of that particular legislation useless. Instead of making surrogacy exclusive for infertile married couples, the State should ensure that everybody gets the chance to procreate and those who help them in doing so get their due, financially or otherwise. A country’s laws reflect the attitude of its people and every nation should aim to move forward with the times, instead of going back in time by making regressive laws. The practice of surrogacy has been marred by a lot of controversy and the issue of what should be allowed morally. The current legislation, while well-meaning, shows a myopic view of what is better for women and an ugly bias towards homosexual and live in relations. It does not reflect the current times and is full of arbitrary rules which need to be done away with.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: