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Updated: Dec 22, 2020


Vaidehi Gupta, III year of B.A.,LL.B.(Hons.) from Tamil Nadu national Law University

The fashion of surrogacy is not new in the country & is prevailing for so long quite uninterruptedly. However, since its first-ever encounter with the legal hurdle in Baby Manji Yamada v. Union of India, the surrogacy in India came in limelight & thenceforth the regulations in Surrogacy Bill is in the loop. Surrogacy (Regulation) Bill, 2020 has been introduced with the purpose to sustain the efficacious regulation of the Bill. If it is stepping forward compared to the existing Surrogacy (Regulation) Bill, 2019, it is still unresponsive & purposeless for some sets of people. The Bill proffers a revolutionary change from imposing a blanket ban on the practice of commercial surrogacy & enabling the practice of ethical altruistic surrogacy to pay he surrogates only for the medical & other required expenses diminishing the commercialization of the act, in lieu, elevated the insurance cover for them from 16 to 36 months. It turned out to be a boon for the Indian (origin) married couples, Indian single woman (widows & divorcees) to opt for surrogacy & evades the blind spot of only a close relative replaced by any willing woman could be a surrogate, further expunging the definition of infertility on the valid ground.

To supervise the sensitive issue of surrogacy, the bill has taken a notch up & proposed to establish a National Surrogacy Board & State Surrogacy Board at Federal & Provincial level with apt authorities in Union Territories. Notwithstanding, the bill is still a setback & futile for certain folks of the society viz. single parents, homosexuals as in LGBTQ community & live-in couples, on not being bestowed with the surrogacy rights. Albeit, the bill was drafted to stave off the exploitation, like a double-edged sword, where it envisions to avert the exploitation of both the women lending their wombs & the children born out of such process, on the flip side, some of the sections aren't under the provisions of the Indian Constitution. As the Bill fails in the basic Constitutional Golden Triangle test ordained by the Supreme Court which provides complete protection to the individuals from any infringement of theirs from the society & others as well rights & examines the constitutional legality of the laws enacted by the Government. This test look over equality (Article 14), liberty & freedom of rights (Article 19), (Article 21) to confirm that the essential fundamental rights of individuals aren’t intruded upon by the State or others.

Article 14 envisages two expressions of equality before law & equal protection of law to all the persons with distinct meanings. It prohibits the class legislation but enables the reasonable classification which shouldn’t be arbitrary, artificial or elusive & must have real & substantial foundation bearing a fair & rational nexus to the object pursued to be achieved.

To pass the test, two tests put forth by the court ought to be satisfied i.e. the test of (i) intelligible differentia & (ii) reasonable nexus. When any classification made fails to be found based on any intelligible differentia along with the absence of the relation with the object desired to be achieved, the classification is invalid.

The Surrogacy (Regulation) Bill, 2020 regarding, allowing only Indian (origin) married couples to opt for surrogacy & barring the single parents (non-married persons or parents) from the process, especially when they are enabled for adopting children. It is arbitrary & fails the reasonable classification test. Further, the bill repudiates homosexual couples & allows only heterosexual couples to have a child via surrogacy as the bill recognize the pair as illegitimate. It is disputable as it is in contrast to invalidation of Section 377, which legitimizes consensual sexual relationship between the two adults of any sex. In NLSA v. UOI, the Supreme Court have also acknowledged the hijras or transgenders in the distinct category of the third gender (others) which conferred them equal power & status as male & female gender. The bill has been drafted very narrowly as it doesn’t provide basic & essential equality to all the genders, especially queer& debar them to have a child through surrogacy. The bill only enables Indian residents & not an outsider to espouse surrogacy which is in contrast to the Article envisaging equality before the law & equal protection of law to any person (both Indians & Foreigners), making certain that the right isn’t fundamentally restricted to the citizens only but is accessible to any individual within the Indian territory. Also, the bill advocates surrogacy for the Indian (origin) married couple, Single married women (Widows & Divorcees) & precludes other individuals of the society based on age, sexual orientation, marital status, & nationality. This fails the test of reasonable classification under Article 14. The classification enabling the altruistic or ethical surrogacy only to certain people & excluding others isn’t based on intelligible differentia & stands no rational nexus with the purpose of the bill.

The chief purpose of the bill is to avert the misappropriation of the surrogacy process & to protect the surrogate mothers from mistreatment. But this could turn out to be pernicious, as often the altruistic surrogacy propelled to the unscrupulous hands proffers them an occasion for corruption & maltreatment & could be the forerunner of the grey market of abusive surrogacy. The bill fails to pass the constitutional validity test & thus, is not in congruity with Article 14.

Article 19(1)(g) envisages the right to practice or carry any profession or trade respectively. This article is exclusively for the Indian Citizens. Since it is not an absolute right, it is subject to Article 19(6) which enumerates the nature of the reasonable restriction that can be foisted by the government over the Indian citizens. One of the restrictions included in the interest of the general public. The Surrogacy (Regulation) Bill, 2020 fails the test of reasonableness under Article 19 & proves to be a fiasco in dispensing itself in the interest of the general public. In Chintaman Rao v. State of MP, the Supreme Court has properly narrowed the scope & meaning of reasonable restrictions envisaged under Article 19(6) & affirmed that reasonable restrictions obtruded on the individuals in the enjoyment of their rights shouldn’t be arbitrary & of excessive nature, yonder what is necessitated in the general public interest & a proper balance should be walloped between Article 19(1)(g) & Article 19(6).

The Supreme Court in State of Maharashtra v. Indian Hotel and Restaurant Association ruled that the total prohibition on the bar dancing is constitutionally invalid. Further asserting that “cure is worse than the disease” considering antipodicity to its objective, conducing many women forcibly into prostitution & infringed their right guaranteed under Article (1)(g). Likewise, the bill in concern completely outlaws commercial surrogacy & allows only ethical surrogacy which works in counter to Article 19(1)(g) & refutes the personal liberty. It doesn’t equilibrise practising or carrying any trade or profession contingent to reasonable restrictions i.e. between Article 19(1)(g) & Article 19(6). Addedly, the commercialization of the surrogacy would avert the surrogate mothers just from getting paid but still could make them vulnerable to exploitation & thereby fails to accomplish the intended purpose of the prospective Act & any prohibition would, in contrast, thrive the grey market of abusive surrogacy practices.

In the medical arena, surrogacy is one of the predominant sources of income for both the surrogate mothers & the surrogacy clinics running all over India. However, the bill espousing the complete ban on the commercial surrogacy imperils the interest of the multiple associates of the exorbitant money-making industry at risk & isn’t justifiable as a reasonable restriction. Accordingly, the bill proves to be impotent in upholding the poise between the rights conferred & regulations foisted & shows the incompetence of the legislation to coalesce both efficaciously.

Article 21, the heart of the Indian Constitution envisages the right to life & personal liberty. It is an absolute right available not only to the Indian citizens but also to each & every person & is one of the most consecrated & valued rights in the constitution. It predominantly treasures Right to Personal Liberty & life which holds the much broader connotation, also embraces Right to Livelihood as avowed by the Supreme Court in Olga Tellis v. BMC& was further reiterated in several other cases.

Regrettably, the Surrogacy (Regulation) Bill, 2020 advocates the into a prohibition on the commercial surrogacy which jeopardizes the primary source of earning for the surrogate mothers & deprived women who assented to be surrogates to quench their frantic need for financial aid to sustain themselves & their families. In that way, they have an adversative impact on their livelihood. Needless to say, in India especially processes like surrogacy where the woman is the chief factor of the souk, exploitation is inevitable & unbridled. Sweeping the complete bar over commercial surrogacy doesn’t do any good or confers justice to them, in lieu, expropriate their right to livelihood.

Moreover, the Right to Life also encompasses Rights to Privacy, Dignity, Integrity of the body & Reproductive Autonomy (embraces right to reproduce & parenting) & also acknowledged as a significant factor by the Supreme Court under Right to Life. The orb for Right to reproduction takes in the right to be pregnant, childbearing, & child-rearing. Therefore, confining surrogacy only to hetero couple & single woman (widow or divorcee) falling in a specific age group &refutingthe rights to others viz. LGBTQ, single persons, & older & live-in couples, intrude upon their Article 21.

As per the Indian Constitution, the states can’t meddle with individual’s right to procreate (naturally or surrogacy)or else it will be direct obtrusion into their right to privacy which is recognised Fundamental Right & is an aspect of Right to Life under Article 21 where it was affirmed that privacy of any person entails individual freedom concerning to the body, mind, & making choices. A PIL was also filed concerning the terrible condition of a female prison & was stated by the court that only women ought to have the prerogative to control her body, fecundity & maternity choices as it is principally an extremely intimate & personal decision. Sadly, the bill impedes this right of women to make a decision. The government doesn’t provide suitable cognitive support for the exclusion of the single & infecund women to be surrogates & without doing so the state cannot inhibit the mutually beneficial philanthropist act of the surrogate mother providing the child to the childless couple it should be valued. It can be presupposed that the state’s action to limit the procreative choices of women breaches their Article 21.

Therefore, the bill is in evident violation of the right to livelihood, privacy & reproductive independence guaranteed under Article 21. Albeit, undergoing a gamut of alterations, the bill still necessitates a lot of corrections & an understandable law which is best suited in the working of the contemporary surrogacy processes.

Public policy shouldn’t remain unchanged & keep on transforming at regular intervals. The Government must enact laws that are consistent with the fundamental rights of citizens & reflect the changing social mores and take every action which facilitates this option safely and with dignity as surrogacy is a blessing of medical science to us.

The bill fails & is impotent in victoriously sustaining the equilibrium between the rights conferred by the Indian Constitution & the regulations envisaged in the newly introduced surrogacy bill. The clear analysis of the bill on the foundation of three profound & fundamental Articles viz. Article 14, 19 & 21 of the Indian Constitution along with the notable decisions ordained by the Supreme Court in several momentous cases corroborates the same & could only be resolved when the bill will be in coherence with the fundamental Indian Constitutional provisions for the effective application of the bill. The government must enact laws that are consistent with the fundamental rights of citizens & reflect the varying social moves. Moreover, thrive to take every possible action which enables the safety & dignity of the boon of surrogacy, especially surrogate mothers.


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