A CRITICAL STUDY OF THE ASSISTED

REPRODUCTIVE TECHNOLOGY BILL, 2016

Mrs. Pyali Chatterjee
Assistant Professor, Isbm University, Raipur, Chattisgarh, (India)

ABSTRACT
Assisted Reproductive Technology was good and an effective tool for childless couple, who were unable to
conceive or bear their own child. As here the child born through this technique would be genetically attached to
the biological parents. Most of the couples especially in India, don’t want to go for adoption because it is a long
legal process as well as time consuming. Even in many families adoption is not considered as proper and hence
not allowed. So for them, this technology was a blessing.
Science and Technology helps in the development of the country as well as improvement of health. But with
every positive thing there is a negative thing also. Now when we speak about surrogacy, no doubt this technique
of medical science is very much useful for the families or couples for having their own child but along with it,
has increased the problem of trafficking of women for becoming surrogate mother as well as for egg donor.
Now the question is, whether the changes which are made in ART Bill, 2016 for the protection of the surrogate
mother as well as for the egg donor will actually help to combat this problem? This paper will discuss the
impact of the ART Bill, 2016.
Keywords- Altruistic Surrogacy, Commercial Surrogacy, Egg Donor, Hormone, Technology

I. INTRODUCTION
The Statement of Objects and Reasons of The Surrogacy (Regulation) Bill, 2016 as mentioned “India has
emerged as a surrogacy hub for couples from different countries for past few years. There have been reported
incidents of unethical practices, exploitation of surrogate mothers, abandonment of children born out of
surrogacy and import of human embryos and gametes. Widespread condemnation of commercial surrogacy in
India has been regularly reflected in different print and electronic media for last few years. The Law
Commission of India has, in its 228th Report, also recommended for prohibition of commercial surrogacy by
enacting a suitable legislation. Due to lack of legislation to regulate surrogacy, the practice of surrogacy has
been misused by the surrogacy clinics, which leads to rampant of commercial surrogacy and unethical practices
in the said area of surrogacy.” Thus from the statement and reason it is clear that the motive of the Government
is to protect the right of the surrogate mother as well as the children born from it. And for this the Commercial
Surrogacy will be banned by enacting this Act. There is no doubt that due to surrogacy many problems has
raised during last few years. And that has raise many question among the mind of the Legal Professional, social
worker and Medical professional. Even I also feel that Commercial Surrogacy has many problem associated
with it. But many good things are also there like employment opportunity to poor woman who will serve as a
Surrogate mother and egg donor. But banning commercial surrogacy will not surely going to help anyone rather
it will become next to impossible for the couples to avail the facility of ART i.e. Assisted Reproductive

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technology. Basically I will study the Surrogacy Bill,2016 and highlight those points which I feel it will create
problem rather providing any solution.

II. CRITICAL STUDY OF THE ACT

I will start my Critical study from Chapter 1 of the said Bill. Section 2 of the Bill defines the terms which has
been used throughout the Bill. Section 2(b) defines Altruistic Surrogacy. “Altruistic surrogacy means the
surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except
the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are
given to the surrogate mother or her dependents or her representative” Now there comes an ethical, legal as well
as moral questions. As in a country like India where person don’t even donate their organ after death, for
helping some other person, who is in need of it, in such country whether it is possible that some from your
family that also a lady will carry ones baby in her womb for 9 months and that also without any remuneration.
According to Vij, head of the Organ Retrieval Banking Organisation (ORBO) at All India Institute of Medical
Sciences (AIIMS) "In India 200,000 people need a new kidney every year and 100,000 need a new liver, but
only 2 to 3 percent of the demand for new organs is met", also according to the World Health Organization only
about 0.01 percent in India donate their organs after death, but in Western countries the percentage is bit higher
around 70-80 percent. Also as per another statistics report daily 22 people died in entire world waiting for organ
transplant. Now in such situation who will be ready to donate, not donate actually, but for rent that also one’s
uterus to other for free of cost. Another issue related to this problem is that what will be the relation between the
surrogate mother and the baby born from her. As in 2004 when a lady aged 43 from India has given birth to her
grandchildren by lending her uterus to her daughter and son-in-law. The child was delivered by Dr Patel,
Akanksha Infertility Clinic in Anand, Gujrat. Now may be there is no wrong in it, but what will be the relation
between the child with his grandmother. Whether he will call his grandmother as mother or grandmother?
Whatever but the question remain the same? May be legally it will not be acceptable but when we talk about
social and moral values question arise regarding it applicability. As, it’s not always possible for a mother, to
become surrogate mother for her daughter, in case if her daughter is infertile. Indian society will took long time
to accept this practice.
As per Section 2(ze) “surrogate mother means a woman bearing a child who is genetically related to the
intending couple, through surrogacy from the implantation of embryo in her womb and fulfils the conditions as
provided in sub-clause (b) of clause (iii) of section 4” . As already discussed it is not possible. It will be like
once in a blue moon where a family member will agree to carry the baby for 9 months by donating or renting
her womb for 9 months.
Again as per CHAPTER III, Section 4 Expalation “ (b) the surrogate mother is in possession of an eligibility
certificate issued by the appropriate authority on fulfilment of the following conditions, namely:— (I) no
woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on
the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or
otherwise; (II) no person, other than a close relative of the intending couple, shall act as a surrogate mother
and be permitted to undergo surrogacy procedures as per the provisions of this Act; (III) no women shall act as
a surrogate mother or help in surrogacy in any way, by providing gametes or by carrying the pregnancy, more

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than once in her lifetime” Now regarding the age of the surrogate mother normally in upper middle class family
a girl generally used to marry after 30 years. Even in many families are there, where girl get married after
graduation. But question if a girl is married after 30 and she conceived at the age of 34-35 then in such case
even if she ready to become surrogate mother for someone, then whether law will permit her. As we know that
minimum there must be three to 5 years gap between next deliveries. Again on the other hand a girl who gets
married in 21 years and now she had a baby of 6 years old and she had agreed to become surrogate mother for
her sister –in- law and brother. But what will her biological child relation with the child born from Surrogacy.
Whether her own biological child will agree to give up the child to his /her uncle and aunty? We should think
about this point also i.e. Child psychology. Even for IVF procedure, there is no such age limit for a woman. As a
woman of any age can go for IVF e.g. Famous Director Farah Khan, then why there is limit 25 to 35 years for
surrogate mother for surrogacy procedure. As, ART technology also used the same IVF methods for the
implantation of the fertilised egg into the Surrogate Mother womb. Also, for intended couples as per Section 4 “
(I) the age of the intending couple is between 23 to 50 years in case of female and between 26 to 55 years in
case of male on the day of certification; (II) the intending couple are married for at least five years and are
Indian citizens;” For intended couples the age limit is high and for one who will carry the child because of
whom the surrogate procedure will succeed, for her the age limit is up to 35 years, which is another issue. Even
the Act is not clear about the marital status of the Surrogate mother. Also everywhere in the Act it is written that
the Surrogate mother must be a Close Relative of the Intended Couple. But the Act didn’t give any definition for
Close Relatives in it. For egg or oocyte donor the Act mentioned the same criteria as for Surrogate Mother. Now
question which arise here is that if a surrogate mother is a close relative and an egg donor will also from a close
relative in such case whether a same relative can become an egg donor as well as a surrogate mother. If yes, then
there is no need of Surrogacy procedure. The intended couple can simply go for IVF. Also when we talk about
marriage in same gotra and marriage between first cousins it is found that child born from this relationship
generally suffer from health problem like Heart problems, nervous disorders, limb anomalies etc. This is another
major drawback in the present Bill which government failed to understand. Because a child born from close
relative means from same blood line, that will create a serious health issue for the child born from this
arrangement. So it’s not good for the Child, if a close relative from the family become a surrogate mother or egg
donor.
All this are the major loopholes as per the requirement of the Surrogate Procedure. As the entire procedure is
rest upon the availability of surrogacy mother and egg donor, and in current scenario it seems not possible due
to the new Surrogacy Bill, 2016.

III. CONCLUSION
As already discussed above, that the entire procedure rest on the availability of the Surrogate mother and as well
as on the egg donor. So it’s better if the condition from the present Bill i.e. the surrogate mother and the egg
donor must be from the close relatives should be removed first. As in today’s world no one does anything for
other without any benefit. And surrogacy itself is a contract. And in Contract a lawful consideration must be
there to make it binding and legal. Even without a consideration also a contract is valid like Gift. But in

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surrogacy who will come forward to rent her uterus or donate her egg for other and that also without any
remuneration. Commercialisation of Surrogacy should be allowed.
Regarding the safety and protection of surrogate mother from exploitation and trafficking, then in that case
Government can take certain precautions for making this wonder full procedure of ART more strong and
beneficial for other. Following are some suggestions by which we can make the procedure possible by removing
the loopholes-
 Like Blood bank government should make registered Surrogate canter where woman can come to register
their name for Surrogate mother or egg donor.
 Aadhar card should be mandatory for becoming Surrogate mother and egg donor. By this we can monitor the
number of times a woman is coming for the procedure. Also by this we can check the trafficking of woman
for Surrogate mother as well as for egg donor.
 Also fees for Surrogacy agreement should be transparent between all the parties including Government.
 Fees relating to Surrogacy must be transferred to the account of the woman linked with Aadhar card.
I think by implementing this few points we can make the Surrogacy procedure more available and better for the
society.
“Sometime technology can help to overcome the loopholes of other technology e.g. Aadhar Card and correct the
loophole of ART”------Pyali Chatterjee

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