Surrogacy law in India: A teasing illusion?

The current surrogacy law, contained in the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), has sparked a heated debate. Under such law, it matters little if you are yearning for a biological child and want to take recourse to surrogacy.

Surrogacy is not for you if you are a single male (unmarried, divorced, widower) or an unmarried female, or a transgender, or a homosexual, or a live-in couple, or a married couple with a child, or a married couple who can conceive a child but the healthy and fertile wife wants to avoid undergoing pregnancy. Nor can you transfer or use your own gametes, zygotes and embryos, directly or indirectly, to any party outside India for your own personal use without the permission of the Indian authorities under the ART Act, thereby impeding access to surrogacy even abroad.

Some refer to the Universal Declaration of Human Rights proclaiming that all men and women of full age have the right to found a family [Article 16(1)] and to the decisions of Indian Supreme Court declaring that family, procreation and sexual orientation are integral to the dignity of an individual. The reproductive choice of a woman to give birth has been held to be a dimension of her personal liberty under Article 21 of the Constitution [KS Puttuswamy (2017); Suchita Srivastava (2009)].

The surrogacy law, in their opinion, is discriminatory, exclusionary and arbitrary, and negates reproductive rights. And in the event of same-sex marriage becoming legal in India, it is asked whether it would be possible, for instance, to deny a legally married male homosexual couple a biological child through surrogacy to complete their family. Then there are others who argue in support of the current surrogacy law, citing the commercial exploitation of surrogate mothers and children born through surrogacy, particularly at the hands of foreign couples.

The constitutional validity of the surrogacy law has been challenged before the Supreme Court. Be that as it may, a reading of this law does leave one baffled as to what exactly the Indian State is seeking to achieve. Let us briefly examine the law.

To start with, the surrogacy law bans commercial surrogacy, and makes it a non-bailable and non-compoundable offence to undertake commercial surrogacy. The commission of such an offence invites imprisonment for a term which may extend to ten years and with fine which may extend to ten lakh rupees.

Further, the surrogacy law specifies who can go for surrogacy, with whom and in what manner. The people who, as per the State, can be trusted for being given access to surrogacy are the “intending couple” and “intending woman” possessing the following attributes.

The intending couple must be (a) an Indian man and woman (b) legally married (c) within the specified age groups (d) with no surviving biological, adopted or surrogate child and (e) must suffer from a medical indication necessitating gestational surrogacy.

An "intending woman" must be (a) a widow or divorcee and (b) within the specified age group. 

Now what should such intending couple/woman do? They must stumble upon a woman who (a) is married (b) is within the specified age group (c) has a child (d) has not been a surrogate mother earlier (e) is willing to act as a surrogate mother without providing her eggs and (f) is willing to do so altruistically – that is, without any charges, expenses, fees, remuneration or monetary incentive of whatever nature, except for the medical expenses, insurance coverage and such other prescribed expenses incurred on surrogate mother.

But then, what are the chances that a woman would gratuitously lend her womb to an intending couple/woman to carry and deliver the child and then hand over the child to the intending couple/woman, more so if she is not related to them? Experience shows that it is more likely that the potential surrogate mother (whether herself or through nominees) would take in cash or by way of benefits the reward for bearing and giving birth to the child and thereafter relinquishing the child to the intending couple/woman. After all, neither the intending couple/ woman nor the potential surrogate mother is likely to follow a law the rationale of which they do not understand. Nor would the threat of being booked for violating the surrogacy law be of any deterrence. Surely, the State is aware that no law persuades simply because it threatens.

If the parties do engage in such commercial terms as the consideration for surrogacy, the very object of the law to ban commercial surrogacy stands defeated. The State may counter that such commercial transaction is not enforceable, and so none of the parties can really do much about it. It is here that Section 42 of the Surrogacy Act will be handy for the surrogate mother. This provision requires the court, notwithstanding anything contained in the Indian Evidence Act, 1872, to presume, unless the contrary is proved, that the surrogate mother was compelled by the intending couple to render surrogacy services for purposes other than those permissible under the Act. All that a surrogate mother needs to do to negate an altruistic surrogacy agreement or to compel the intending couple to give undue or even extortionist payments/benefits is to allege that her consent was vitiated on account of some fear of injury, or under a misconception of fact or misrepresentation in terms of Section 90 of the Indian Penal Code, 1860 (IPC), and leave it to our criminal justice system – known to make the process a punishment – to do the rest.

The State could not have been oblivious to parallels with the prevalent misuse of the provisions of Section 498-A (cruelty) and Section 377 (unnatural sex) of the IPC by an estranged wife to settle marital scores and the increasing trend of the relatives of the husband being roped in under Section 376 (rape) of the IPC. 

Then, there is yet another aspect of penalising the intending couple in such a situation. The surrogacy law treats the child from surrogacy as the biological child of the intending couple, and requires that the child be handed over to them by the surrogate mother. In fact, the Gujarat High Court has taken the view that the surrogate mother cannot retain the custody of a new-born child even for the purpose of breastfeeding. [Ena (2022)]. Where the intending couple is jailed for contravening the surrogacy law, one is left wondering what the pitiable fate of the child would be.

Should the State seriously wish to address the ills of commercial surrogacy, it would have to do better than act as the proverbial ostrich burying its head in the sand, hoping that the surrogacy market will disappear by merely banning commercial surrogacy or making access to gestational surrogacy so illusory.

Dr. Aman Hingorani is an Advocate-on-Record and Mediator at the Supreme Court of India.