1

THE MORAL, SOCIAL AND ETHICAL ASPECT 

OF THE SURROGACY REGULATION BILL 2019: 
Is it Socially Relevant in the 21st Century 

BY-
ARUSHI BAHL (2526)
SARGAM CHOUDHARY(2639 )
B.A. ECONOMICS (HONS.)
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TABLE OF CONTENTS 

Chapters Particulars Page Numbers

Declaration 4

Acknowledgement 6

Abstract 7

Chapter 1 Introduction and History 9

1.1 About Surrogacy Bill 2019 9

1.2 Objectives 10

1.3 Methods of Surrogacy 11

1.4 History of Surrogacy 12

1.5 Laws regarding Surrogacy 13

1.6 Public Perception of Surrogacy 16

Chapter 2 Literature Review 17

Chapter 3 Research Methodology 21

3.1 Introduction 21

3.2 Method 21

Chapter 4 Data Analysis 22

4.1 Telephonic Interview 22

Chapter 5 Discussion 24

5.1 Case Studies 24

5.2 The agony of the LGBTQA community 27

5.3 Other loopholes 29

5.4 Does the surrogacy bill take away the 30

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bodily autonomy of women

5.5 The Rise of an underground market of 31

surrogacy

5.6 The Right to Privacy 32

5.7 Religious outlook to Surrogacy 32

Chapter 6 Conclusion 35

Chapter 7 Recommendations 37

References 39

Appendix 42
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DECLARATION 

I, ​Sargam Choudhary​, and I ,​Arushi Bahl​, confirm that the work for the following research
project with the title

The moral, ethical and social aspect of The Surrogacy (Regulation) Bill, 2019; Is it
socially relevant in the 21st century

was undertaken by us with no help from prohibited external sources. All sections of the
project which use quotes or describe an argument or a concept by another author have been
referenced including all secondary literature used to show that this material has been used to
support our research paper.

Date:​15th November 2019

New Delhi
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CERTIFICATE  

This is to certify that the research paper entitled ‘The Surrogacy (Regulation) Bill, 2019’ is a
bonafide record of independent research work done by Arushi Bahl & Sargam Choudhary
under my supervision and submitted to me.

Signature
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ACKNOWLEDGEMENT 

The satisfaction and joy that accompany the successful completion of a project would be
incomplete without the mention of people who made it possible. We would like to take this
opportunity to express our gratitude towards our teacher and mentor Ms. Bornalli Borah. We
are grateful for her valuable guidance and her advice.

In the course of this research, we have used the Internet to provide us a background on the
research problem that we selected. There may be a few shortcomings in our project in the
form of errors and mistakes in between to which we are solely responsible and hope that you
consider the mistakes and nothing more.

To all our friends who provided support in one way or the other in the course of this study, we
express our sincere gratitude.

 
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ABSTRACT  

Nature has bestowed to women the capability of procreation. The right to reproduction is a
personal choice and an individual freedom of a person and the desire for a child is a
universal phenomenon. According to most, parenthood is an endearing experience and the
inability to fulfill this desire brings unprecedented grief.

We live in a nation which is almost obsessed with child rearing, parenthood is seen as one of
the most important phases of the lives of Indians, giving birth to a child is traditionally seen as
a way of paying our forefathers and keeping the line of kinship going for another generation.
Indians are more obsessed with childbirth than the Western populations of the world making
it almost sacrilege if a couple or an individual chooses to not become a parent.

In any population, infertility or any inability to rear children can be found, it is merely amplified
by the sheer number of the Indian population. The inability to have children is viewed as a
result of karma, payback for crimes done in another birth. The only alternative that many
people have is adoption and surrogacy, the latter being more popular, both of which are a
taboo.

As the educated and enlightened youth of the nation, the attitude of people around us
towards surrogacy compelled us to ask some questions and truly understand Surrogacy as a
practice, its legal provisions, its ethics as well as the religious and moral sentiments
surrounding it. Further, with the recent Surrogacy Bill as well as the abolishment of article
377, we attemt to evaluate the legal, moral and religous aspects of the surrogacy Bill 2019
through literature reviews, interpretation of other secondary data as well as the interview of
senior lawyers and understand if it is truly relevant in a modern society especially sicne the
decriminalisation of gay sex and the social movement around it. 
CHAPTER 1  
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INTRODUCTION 

1.1 ​About Surrogacy (Regulation) Bill, 2019- What it means?

Surrogacy is defined as a legal agreement wherein a woman agrees to bear a child on behalf
of another person/couple who are or will become the parents of the child. Surrogacy is an
assisted reproductive technology undertaken when pregnancy risks are too dangerous or
medically impossible for the intended mother or when a single male or male couple wish to
have a child.

Surrogacy is of two types-

a. Commercial Surrogacy​- ​refers to any surrogacy arrangement in which the surrogate
mother is compensated for her services beyond reimbursement of medical expenses.
Commercial surrogacy is often done through third parties.

b. Altruistic Surrogacy- ​refers only to those arrangements in which the surrogate does
not receive compensation for her services beyond reimbursement for medical costs
and other reasonable pregnancy-related expenses. Many of these arrangements are
between family members or close friends

The government of india introduced The Surrogacy (Regulation) Bill, 2019 as a way of
regulating the surrogacy market in india which is estimated at a high of $2.5 billion a year to
help the surrogate mother, who are are often exploited for their womb and ill-treated at time
by or because of the intended couple.

1.2 ​Objectives- What we Intended to cover in this Research Paper

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With this research paper our main objective was to learn about a new field of law and its
intricacies and how the recent developments and changes in this law has affected the
country of India as a whole. We intended on knowing the following-

1.2.1 ​Is the new Surrogacy (Regulation) Bill, 2019 socially, morally, ethically and
religiously accurate?
Throughout history there have been numerous debates as to whether the practice of
surrogacy is within the social, moral and ethical confines. On the other hand, we have
different religions with their on views on surrogacy and if it is against their belief or not.

1.2.2 ​Is the Surrogacy (Regulation) Bill, 2019 in consonance with the ruling of the
supreme court wherein it gives equal rights to the LGBTQ community after striking
down Article 377?
Surrogacy (Regulation) Bill, 2019 does not allow gay couples to have a child through a
surrogate which leads us to believe that the new bill is unknowingly directly aganist the
supremem court ruling against Article 377. As it discriminates gay couples from
normal couples by not allowing them to have a child.

1.2.3 ​Is there a possibility that the new Surrogacy (Regulation) Bill, 2019 will be the
perpetrator of a new black market aspect?
Surrogacy (Regulation) Bill, 2019 has completely banned any form of commercial
surrogacy and allows only for altruistic surrogacy. Which means that if a couple wants
a child through surrogacy they can only ask their family or very close friends so long
as no money is exchanged in the process and if the intended surrogate refuses to
have the couples baby then there is no way that a couple can have a child through
surrogacy. This complete banning of surrogacy has lead us to believe that this
practice would result in black market surrogacy, which is having surrogacy without the
government knowing which would invariably lead to greater exploitation of the
 10
surrogate mother as there is no law to protect them and on the other hand it would
lead to a greater price for the intended couple.

1.2.4 ​Should Surrogacy (Regulation) Bill, 2019 be retained or abolished?

Surrogacy has been one of the most debatable topics in India since its inception.
While we have both supporters and opposers for the same, nobody can still say for
surety what needs to be done. To find out what’s the actual state of Surrogacy in India
and to discover the best way to deal with such cases, we have conducted this
research.

1.3 ​Methods of Surrogacy

a. Traditional Surrogacy​- ​Also known as straight or natural surrogacy, is one where the
surrogate’s egg is inseminated through ​In Vivo ​by the intended father or a donor
sperm. Using the donor’s sperm results in a child that is nor genetically related to the
couple. Whereas, using the intended father’s sperm results in a child that genetically
belongs to both the surrogate and the intended donor.

b. Gestational Surrogacy​- ​Also known as host or full surrogacy. It takes place when an
embryo created by in vitro fertilization technology is implanted in a surrogate, Known
as the gestational carrier. Gestational Surrogacy has four forms-

❖ The embryo is created using the intended father's sperm and the intended
mother's eggs.
❖ The embryo is created using the intended father's sperm and a donor egg.
❖ The embryo is created using the intended mother's egg and donor sperm.
❖ A donor embryo is transferred to a surrogate. Such an embryo may be
available when others undergoing IVF have embryos left over, which they
donate to others. The resulting child is genetically unrelated to the intended
parent.
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In all the forms the surrogate is not genetically related to the child at all.

1.4 ​History of Surrogacy in India

There is no doubt that the practice of Surrogacy has its roots way back in history and find its
mention in most of the holy scriptures and is considered an ancient practice dating back to
biblical times.
The first surrogate mother in history lived two thousand years before the birth of Christ.
Surrogacy an exceptionally common practice in ancient Egypt was practiced as pharaohs
asked their concubines to help them with procreation.
Similarly, we can find the mention of the process of surrogacy in the bible as well. It follows
the story of Sarah and Abrahim and how they are unable to conceive a child of their own.
Sarah therefore turns to her maid Hagar to be the mother of Abrahim’s child. This is the first
written record of traditional surrogacy.
Hindu mythology also suggest various instances of surrogacy and simultaneously reflects the
taboo of surrogacy that still persists in the subcontinent. In Bhagavata Purana, Lord Vishnu
heard Vasudeva's prayers to prevent the evil Kansa from killing all his 8 children. Lord
Vishnu in response to the prayer transferred the embryo from Devaki's womb to Rohini's (
Vasudeva's first wife) womb. Rohini then went on to give birth to Balaram, Lord Krishans
elder brother.
In the epic Mahabharat, Queen Gandhari delivered a semi solid structure rather than a child,
Maharishi Vyas then divided the structure into 100 pieces and placed them in pans, this was
they way the 100 Kaurava brothers were born.
The recent development of the modern surrogacy method can be traced back to 1884, in the
following chronological order-
1. 1884​The first successful artificial insemination of a woman was completed,This paved
the way for future artificial insemination used in the surrogacy process.
2. 1978: The first baby conceived through IVF transfer was born. Also, ​The world's
second and India's first IVF baby Kavupriya was born in 1978.
 12
3. 1980: The first compensated surrogacy agreement was arranged between a
traditional surrogate and the intended parents. Elizabeth Kane (a pseudonym)
received $10,000 to carry a baby for another couple.
4. 1984–1986: Perhaps the most famous case in surrogacy history is the “Baby M” case,
involving a traditional surrogacy. Bill and Betsy Stern hired Mary Beth Whitehead to be
their surrogate in 1984, agreeing to pay her $10,000. Whitehead’s eggs were used in
the artificial insemination process, making her the biological mother of the child. When
the baby was born and it was time for Whitehead to sign over her parental rights, she
refused and took custody of baby Melissa Stern
5. 1985: the first successful gestational surrogacy was completed, paving the way for
future gestational surrogacy to be the norm.1

1.5 ​History of Indian laws regarding Surrogacy and Surrogacy (Regulation) Bill, 2019
Surrogacy was made legal in India in the year 2002, following the regulations given by ​Indian
council for medical research ​approved by the government in the year 2005. The guidelines
by ​ICMR ​was later modified in the 2007. The salient features of the new draft was as follows-
1. Surrogacy arrangement will continue to be governed by a contract amongst parties,
which will contain all the terms requiring consent of surrogate mother to bear the child,
agreement of her husband and other family members for the same, medical
procedures of artificial insemination, reimbursement of all reasonable expenses for
carrying child to full term, willingness to hand over the child born to the commissioning
parent(s) etc.
2. A surrogacy arrangement should provide for financial support for the surrogate child in
the event of death of the commissioning couple or individual before delivery of the
child, or divorce between the intended parents and subsequent willingness of none to
take delivery of the child.
3. A surrogacy contract should necessarily take care of life insurance cover for surrogate
mother.

1
https://surrogate.com/about-surrogacy/surrogacy-101/history-of-surrogacy/
 13
4. One of the intended parents should be a donor as well, because the bond of love and
affection with a child primarily emanates from biological relationship. Also, the
chances of various kinds of child-abuse, which have been noticed in cases of
adoptions, will be reduced.
5. In case the intended parent is single, he or she should be a donor to be able to have a
surrogate child. Otherwise, adoption is the way to have a child, which is resorted to if
biological (natural) parents and adoptive parents are different.
6. Legislation itself should recognize a surrogate child to be the legitimate child of the
commissioning parent(s) without any need for adoption or even declaration of
guardianship.
7. The birth certificate of the surrogate child should contain the name(s) of the
commissioning parent(s) only.
8. Right to privacy of donor as well as surrogate mother should be protected.
9. Sex-selective surrogacy should be prohibited.
10. Cases of abortions should be governed by the Medical Termination of Pregnancy Act
1971 only.

Assisted Reproductive Technologies (Regulation) Bill, 2010​:Considering the growing

number of Surrogacy cases in India, the Government of India has decided to come up with a
law which would govern the surrogacy and ART in India in future. The salient features of the
Bill are as follows-
1. Constitution of an authority at National as well as State level to register and regulate
the IVF clinics and ART centers.
2. Creation of a forum to file complaints for grievances against clinics and ART centers.
3. Imposing duties and responsibilities on the clinics and ART centers.
4. Regulations for sourcing, storage, handling, record keeping of Gametes, Embryos and
other human reproductive materials.
5. Placing rights and duties on Surrogate and commissioning parents.
6. Imposing stringent penalties for breach of the duties and regulations under this Act.
 14

Union Home Ministry Guidelines for Regulating the Practice of Commercial Surrogacy
(2012):
Now, foreign nationals intending to visit India for commissioning surrogacy will not be allowed
to come on a tourist visa with the Home Ministry ordering strict adherence of surrogacy laws.2

Surrogacy (Regulation) Bill, 2016 and 2019:

In 2016, a Surrogacy (Regulation) Bill was introduced and passed by Lok Sabha, the lower
house of the Indian parliament, proposing to permit only Indian heterosexual couples married
for at least five years with infertility problems to access altruistic or unpaid surrogacy and
thereby banning commercial surrogacy. The 2016 bill lapsed owing to the adjournment ​sine
die of the parliament session. The bill was reintroduced and passed by the Lok Sabha in
2019 and then Rajya sabha in july, 2019

Important rulings under this bill are-

a. The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.
b. Surrogacy is permitted when it is:
(i) for intending couples who suffer from proven infertility
(ii) altruistic
(iii) not for commercial purposes
(iv) not for producing children for sale, prostitution or other forms of exploitation; and
(v) for any condition or disease specified through regulations.
c. The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of
eligibility’ issued by the appropriate authority. A certificate of essentiality will be issued
upon fulfilment of the following conditions:
(i) a certificate of proven infertility of one or both members of the intending couple from
a District Medical Board

2
​R. K. Chaturvedi, S. P. Garg, Abha Mishra, Vidya Garg, Praveen Chaturvedi.“Surrogacy Policy in India and need of Acts
to Regulate Commercial Surrogacy”. Journal of Evolution of Medical and Dental Sciences 2014; Vol. 3,

Issue 20, May19; Page: 5384-5389,DOI: 10.14260/jemds/2014/2602

 15
(ii) an order of parentage and custody of the surrogate child passed by a Magistrate’s
court
(iii) insurance coverage for a period of 16 months covering postpartum delivery
complications for the surrogate.
The certificate of eligibility to the intending couple is issued upon fulfilment of the
following conditions:
(i) the couple being Indian citizens and married for at least five years
(ii) between 23 to 50 years old (wife) and 26 to 55 years old (husband)
(iii) they do not have any surviving child (biological, adopted or surrogate); this would
not include a child who is mentally or physically challenged or suffers from life
threatening disorder or fatal illness; and
(iv) other conditions that may be specified by regulations.3

1.6 Public Perception of Surrogacy

The need for surrogacy in our society automatically leads to the assumption of infertility
which is a social stigma in India. Infertility does not lead to life threatening circumstances but
does inflict an agony and a helplessness for the couples. Indian social norms include a
strong family structure with an inbuilt necessity of bearing children to carry forth the lineage.
According to a survey done by Indian Council of Medical Research (ICMR)4 in 2002, 24% of
the general public believed that commercial surrogacy should not be allowed in India.
In recent years, the use of surrogacy for childbirth by many celebrities in the country like
Shahrukh Khan and Karan Johar has made people more aware about surrogacy but still has
not normalised it, in most areas, the scrutiny of infertility and thus surrogacy continues to
stigmatise many couples across the country.

3
Important rulings under Surrogacy Bill, 2019 taken from PRS legislative research website.
4
​Study given as table 1 in Appendix
 16

CHAPTER 2 
 
REVIEW OF LITERATURE 

Sneha Banerjee in her article titled “ Emergence of the Surrogacy Industry” highlights that the
reason people prefer surrogacy over adoption upon inability to have children is that within
“patriarchy, family and kinship is dependent on the blood line.”5 The purity of bloodline
according to most is said to determine their honour and social standing. Further she
elaborates on how women suffer stigmatisation more as they are seen to have a greater role
in reproduction. She then goes on to point out how commercial surrogacy as an industry is
exploiting women as many women from low income families volunteer to become surrogates
in exchange for some money to sustain themselves and their families. The industry exploits
the socio economic vulnerabilities of women and offers no compensation for foetal reduction
or any other medical complications the women go through during the pregnancy.

Sharmila Rudrappa and Caitlyn Collins in their article titled “Altruistic Agencies and
Compassionate Consumers: The Moral Framing” citing economic sociologist Viviena Zilizer
explain that money and intimacy have a long history and that economic transactions
“characterise, nourish or amend the various intimacies that inform social life.”6 They argue
that because of the social and economic inequalities of the stakeholders of surrogacy,
surrogacy agencies and intended parents represent altruistic and compassionate acts. They
offered the argument that surrogacy enables Indian women to participate in the labour force
thus unshackling them from patriarchy, they argued that since surrogacy involves a payment
of wages to the surrogate mothers, it allows them to be financially independent and and gives

5
Emergence of the 'Surrogacy Industry' Author(s): SNEHA BANERJEE Source: Economic and Political Weekly,
Vol. 47, No. 11 (MARCH 17, 2012), pp. 27-29 Published by: Economic and Political Weekly Stable URL:
https://www.jstor.org/stable/23214649 Accessed: 25-10-2019 05:13 UTC
6
ALTRUISTIC AGENCIES AND COMPASSIONATE CONSUMERS: Moral Framing of Transnational Surrogacy
Author(s): SHARMILA RUDRAPPA and CAITLYN COLLINS Source: Gender and Society, Vol. 29, No. 6
(December 2015), pp. 937-959 Published by: Sage Publications, Inc. Stable URL:
https://www.jstor.org/stable/43670030 Accessed: 25-10-2019 05:12 UTC
 17
her a greater say in decision making in her marriage and family. They put forth another
interesting argument that surrogacy furthers reproductive rights. “ Reproductive rights include
a plethora of policies that strengthen reproductive decision making, including choice of
marriage partners, family formation, determination of the number, timing, and spacing of
one's children, and the right to infor- mation and means needed to exercise voluntary choice
in reproduction.”7 Infertility is a psychologically and socially devastating medical diagnosis,
with women being more stigmatized than their male partners even when the latter are
diagnosed with infertility. Therefore,citing Deech, the authors believe that the lack of fertility
assistance is seen as a human rights violation. “Placed in this context, inexpensive surrogacy
in India can be seen as widening access to reproductive rights because surrogacy is now an
option for those individuals who may have been priced out of the market.”
The above article seems to have certain flaws as it gives greater weightage to the fact that
surrogate mothers are able to earn from it, ignoring that they are seldom compesnated for
medical hazards or injuries during the pregnancy. Furthermore, the article assumes that all
medical tourists are altruistic and will be willing to pay the surrogate mothers an amount
sufficient for them to lead dignified lives, while that too is a rarity.

Deepanshu Mohan8, in an article titled “ Surrogacy Bill 2019: Patriarchal mindset shines
through” highlights the problems of the assumptions under which the bill has been drafted
and passed, to begin with, the assumption that all surrogate mothers are compelled or forced
to be surrogate mothers which in his opinion is a mere assumption lacked by empirical
backing. He furhter adds that the banning same sex couples from availing feritlity services
like surrogacy is a violation of Article 14, the Right to Equality as this ban is discrimnaotry in
nature.

7
ALTRUISTIC AGENCIES AND COMPASSIONATE CONSUMERS: Moral Framing of Transnational Surrogacy
Author(s): SHARMILA RUDRAPPA and CAITLYN COLLINS Source: Gender and Society, Vol. 29, No. 6
(December 2015), pp. 937-959 Published by: Sage Publications, Inc. Stable URL:
https://www.jstor.org/stable/43670030 Accessed: 25-10-2019 05:12 UTC

8
Deepanshu Mohan is an Assistant Professor at Jindal School of International Affairs
 18
Dr. Sheela Saravana in her independent research titled “Surrogacy in India: Bioethics,
Human Rights and Agency” funded by The European Observatory for Non-Discrimination
and Fundamental Rights (E.O.N.D.F.R.), France revealed through her data and extensive
research that many surrogate mothers feel they have been abused and exploited. “They feel
their wombs have been rented.”9 They feel betrayed and hurt towards the clinic and
surrogate parents. A majority of surrogate mothers face health problems that have lasted for
more than 5 years. They do not have the capacity to work as much after the surrogacy
medical treatment, multiple embryo transfer trials, miscarriage and some serious morbidities
during pregnancy.

Chandrika Manjunath (2019) offered an arugement in her article Titled “The Surrogacy
(Regulation) Bill, 2019 denies Women agency over their bodies” of the Bill’s neglect to
acknowledge same-sex couples, despite the Supreme Court having legitimising these
relationships. The pernicious nature of the Bill is evident by its prohibition of live-in partners,
same-sex couples, foreigners, and single-parents from using surrogacy services.
Furthermore, she discusses, citing Mumbai-based gynaecologist, Dr. Duru Shah “If a
daughter-in-law is forced to become a surrogate for the daughter in the family, and she may
not be able to say no, this leads to exploitation,” challenging the the new Surrogacy
(Regulation) Bill, 2019 on the basis that banning commercial surrogacy and advancing
altruistic surrogacy has the potential to impose unwarranted pressure on women who might
not have the ability to negotiate becoming surrogates. 10

Sonali Kusum mentions several shortcomings of the said Bill in her article titled “Surrogacy
Bill -Critical Perspectives”. She writes- “​The Surrogacy bill is a hasty piece of legislation,
vague in terms of crucial definitions. For instance, “surrogate mother is not an egg donor nor
genetically related to the child she gives birth to” fails to differentiate surrogacy from other
ART pregnancy. It is not clear if Bill permits “gestational surrogacy”in India.” Furthermore,

9
​Surrogacy in India: Bioethics, Human Rights and Agency Dr. Sheela Saravanan
10
‘’​The Surrogacy (Regulation) Bill, 2019 denies Women agency over their bodies” by Chandrika Manjunath.
url-https://feminisminindia.com/2019/08/08/lok-sabha-passes-surrogacy-regulation-bill-2019/
 19
she writes The bill permits altruistic surrogacy with close family relatives but does not define
the term “close relative”. There is no mentioning of “gametes donors (egg, sperm donors)
storage, preservation of gametes” under Bill. she is of the opinion that since the Bill proposes
imprisonment and criminalization of couples commissioning commercial surrogacy thus the
bill criminalizes reproductive rights. 11

Spriha Shukla writes in her article titled “The Surrogacy Bill: A much-needed reform that fails
the test” that the bill made to stop the exploitation of the surrogate mother by banning
commercial surrogacy and allowing only altruistic surrogacy. ​The point of medical
compensation is not very clear either in the contract or the so called written consent to be
obtained from the surrogate mother and thus leaves ample room for potential exploitation of
the surrogate mother.12

Smitha Sasidharan Nair & ​Rajesh Kalarivayil writes in their research paper titled-”Has India’s
Surrogacy Bill Failed Women Who Become Surrogates?” that the bill constructs the image of
a ‘good woman’ who is ready to bear the child of a relative as a ‘good deed’ for the
perpetuation of the family name. It fails to address the fact that the woman consents to
surrogacy under the unequal circumstances of poverty, casteism and the patriarchal
exploitation of women within the family. The bill fails to address the reasons as to why a
woman takes up the job of a surrogate mother.13

11
​Sonali Kusum, Assistant Professor (Law) TISS Mumbai. Surrogacy Bill -Critical Perspectives.
https://health.economictimes.indiatimes.com/news/policy/surrogacy-bill-critical-perspectives/70553442

12
(​ Spriha Shukla is a Researcher at Observer Research Foundation, Mumbai) ​The Surrogacy Bill: A
much-needed reform that fails the test”.
https://www.orfonline.org/expert-speak/the-surrogacy-bill-a-much-needed-reform-that-fails-the-test-46409/
13
​Volume: 3 issue: 1, page(s): 1-11 Article first published online: June 19, 2018; Issue published: June 1, 2018
Smitha Sasidharan Nair​1​, Rajesh Kalarivayil​2​.https://journals.sagepub.com/doi/10.1177/2455632718778375
 20

CHAPTER 3 
 
RESEARCH METHODOLOGY 

3.1 Introduction
Research Methodology is basically a process of collecting relevant information and data for
the purpose of understanding your sample size, there are various methods available at the
disposal of every researcher, some common methods are questionnaires, group discussions,
individual interviews, online polls, telephonic interview.

3.2 Method: Telephonic Interviews

Demographic Profile- Lawyers
Sample Size: 3
Age group: 25-40 years
Gender: 3 (M)

We approached the advocates through all the mediums available with us keeping the time
constraints in mind, we researched and found out some eminent personalities naming
Advocate Ali Rahim, Advocate Deepanjal Choudhary, and Advocate Paramveer Dalal. We
conducted the interview over telephone keeping their and our time constraints in mind. We
asked them various questions regarding their views on the current Surrogacy legislation and
if according to them it requires any changes.
 21

CHAPTER 4 
 
DATA ANALYSIS  

4.1 Telephonic Interviews: Inference

Along with conducting surveys, we also conversed with some eminent lawyers to know about
their personal views over the same topic (elaborated interview has been mentioned in the
Appendix, and what they shared with us have been mentioned below:

Advocate Choudhary believes that The Surrogacy Regulation Bill 2019 has both a positive
and a negative aspect to it. According to him India has become a hub of Commercial
Surrogacy and exploitation of poor women who were not aware of their reproductive rights
and he believes that this bill will deter commercial surrogacy and hence reduce the
exploitation.Further he stated that the bill says that even for an altruistic surgery which oh is
altruistic surrogacy only couples from 25-50 years can have a surrogate baby, but for the
woman who needs to be a surrogate mother has to be in the age bracket of 25-35 years. And
given the social setting in Indian families there is a pressure from in-laws or other relatives to
bear child of a couple who is in infertile, this is a loophole in the current bill.They should add
this to the bill and making sure that the surrogate mother which will be a close relative gives
her consent without coercion and it is out of her free will. He also stated that this bill is in
consonance with the striking down of Section 377, he doesn't think of this to be a
discriminatory act against the LGBTQA community as even live in couples according to this
bill are not allowed to have children through surrogacy.
Advocate Choudhary believes that the Bill should not be abolished but should be amended to
cover as many loopholes as possible.
 22
Advocate Dalal believes that the absolute ban on commercial surrogacy is a shortcoming of
the bill, however, the women who become surrogates used to go through a lot of mental and
physical trauma. He believes that in ​some aspects the new bill does indeed violate the equal
rights given to the LGBTQ by the government after striking down the article 377 but we have
to have some trust in our parliament too. According to him these steps might have been
taken keeping in regard the fact that even though the LGBTQ have equal rights now they are
not yet fully accepted by society and that it might pose a danger to the future of the surrogate
baby similarly the government has also banned single parents and live in couples because
they are no laws right now which could decide the fate of the baby after the live in parents
are separated or the single parent suddenly decides that they don’t want the baby anymore.
He too believes that the banning of commercial surrogacy will lead to surrogacy being
practiced in the underground market. According to him, the bill should not be abolished but
needs to be amended so that the loopholes can be covered.

Advocate Rahim ​shares with us his insight on The surrogacy Bill 2019. He believes that the
banning will not improve the condition of surrogate women, it will only make it worse as
women who are desperate for money will continue to rent their wombs and may be even
more exploited. Further, he adds that with the abolishmnrnt of section 377 and wider
acceptance of the LGBTQA community in mainstream society points out that exclusing gays
and lesbian couples from having a child or aviling fetility treatment is a discrimnation and this
should be changed in the law. Adding to this, he believes that the right to bodily autonomy
may not be absolute but it is enough to enable women to rent out their wombs if that is what
they please, the banning of commercial surrogacy takes away this autonomy from them.
 23

CHAPTER 5 
 
DISCUSSION

5.1 Case Studies

5.1.1 Case Study 1 : Baby Manji Yamada Case

Ikufumi and Yuki Yamada, a Japanese couple in 2007 traveled to India to hire a surrogate
mother to bear a child for them. They approached Dr. Nayna Patel(fertility specialist) who
arranged a surrogacy contract with Pritibhen Mehta, a married Indian woman with children.
Dr. Patel supervised in the creation of an embryo from Ikufumis sperm and an egg harvested
from an anonymous Indian woman14. The resulting embryo was then placed in Pritibens
womb.
In June 2008, the couple divorced and in July Manji was born to Pritiben. Ikufumi wanted to
raise the child, but his ex wife Yuki did not wish to. Baby Manji had three mothers- Yuki, the
egg donor and Pritibhen-but no legal parents.
Neither the surrogacy contract nor the laws of surrogacy in 2008 provided any cover or
clarification of the same. The nationality and parentage of Baby Manji could not be
determined under existing Indian and Japanese laws.
In the article published by the Kenan Institute for Ethics, Duke University titled “ Commercial
Surrogacy and Fertility Tourism in India; The Case of Baby Manji”, throws light on the
different stakeholders of the Baby Manji case. “The responsibility of the egg donor ended as
soon as she provided the egg and the surrogates responsibility got over as soon as she gave
birth”15

14
​Commercial Surrogacy and Fertility Tourism in India .​ Kennan Institute of Ethics, Duke University
, ​http://thetarrytownmeetings.org/sites/default/files/BabyManji.pdf​.
15
​Commercial Surrogacy and Fertility Tourism in India .​ Kennan Institute of Ethics, Duke University
, ​http://thetarrytownmeetings.org/sites/default/files/BabyManji.pdf​.
 24
Initially Yamada tried to secure documents to take Baby Manji to Japan, however the
Japanese Embassy refused to provide Manji a visa or a Japanese passport. According to the
legislation of Japan, only the birth giving woman is the mother of the child, making Manji
eligible for the Japanese passport. Seeing no other alternative Yamada then approached the
Government of India in an attempt to adopt Manji however the Guardian and Ward Act of
1890 forbids single men from adopting girls. He then attempted to file for an Indian passport,
however it was unclear if her mother should be considered as Indian, and her father was
japanese causing the Indian authorities from reflecting his application for an Indian passport
for Baby Manji.
In August, Satya, a social justice and child welfare organisation filed a habeas corpus petition
with the Rajasthan High Court accusing Dr. Patel and her fertility institute if being involved in
child trafficking of which Manji too was said to be a victim.
In September, the Solicitor General stated to the Supreme COurt, that the final decision of
giving Baby Manji a passport rests with the Union Government. In October Manji was issued
an identity card without religion, nationality and mothers name enabling her travel to Japan.
The Japanese embassy then issues her a 1 year visa on humanitarian grounds.
The article then emphasises on the commercialisation of surrogacy as well as the
development of fertility tourism in India. Fertility tourism is a phenomenon in which “ patients
with fertility problems go abroad to receive medical services- surrogacy, third party gametes
and in vitro fertilisation to have children.”16 Fertility services in India and other developing
countries have become hubs that attracted infetile couples.

16
​Commercial Surrogacy and Fertility Tourism in India .​ Kennan Institute of Ethics, Duke University
, ​http://thetarrytownmeetings.org/sites/default/files/BabyManji.pdf​.
 25

5.1.2 Case Study 2: Jan Balaz Case

This case is famously known as German Couple case. A German couple had twins through
a surrogate mother in Gujarat. German legislation did not recognize surrogacy as a
legitimate way of parenthood and did not issue German Citizenship to these children
The couple then approached the Gujarat High Court for allowing issue of Indian passports
to the children. The court in this case along with the citizenship and issuing of passport to
twins, was also concerned with the gestational surrogate mother and donor of ova. The court
found that in the absence of any legislation about the legal mother, the court is initially
wanted to recognize the gestational surrogate who has given birth to the child as natural
mother as the anonymous egg donor cannot be regarded as natural mother. Considering
the intended mother, the court held that she is just the wife of the biological father, who has
neither donated the ova nor conceived or delivered the babies, cannot in the absence
of legislation be treated as legal mother and she can never be natural mother. FInally the
court gave the children an Indian passport, on grounds that they were born to an Indian
mother.

5.1.3 Case Study 3: Goldberg Case

In 2010 Dan Goldberg and Arnon Angel a gay couple from Israel who had twin baby boys
from an Indian surrogate mother, were stranded in India after Family Court in Israel refused
to give permission for a paternity test to initiate the process for Israeli citizenship for the
twins. Ultimately, Prime Minister Benjamin Netanyahu had to intervene so that the infants
could be brought to Israel following legal procedures. Finally, the Jerusalem Court,
accepted the claim that it was in the best interest to hold a DNA paternity test to establish
that Dan Goldberg was the father of the twin baby boys. The DNA test established Goldberg
as the father of the infants. Goldberg and his twin baby boys returned to Israel in May 2010
after being issued Israel passports.
 26

5.1.4 Case Study 4 : Baby M

Baby M, a custody case was the world’s first ​court ruling on the validity of surrogacy. William
and Elizabeth Stern entered into a surrogacy agreement with Mary Beth Whitehead.
According to the agreement, Mary Beth Whitehead would be inseminated with William
Stern's sperm, bring the pregnancy to term, and relinquish her parental rights in favor of
William's wife, Elizabeth. About upon the birth of the child Mrs. Whitehead realized she could
not part with the child. She nonetheless turned her child over to the Sterns on March 30 at
the Whiteheads’ home. Later that evening Mrs. Whitehead was stricken with unbearable
sadness. The Sterns, concerned that she might commit suicide turned the child over to her
on her word that she would return her in a week. It became apparent that Mrs. Whitehead
could not return the child, and Mr. Stern filed a complaint seeking enforcement of the
surrogacy contract. This lead to a court case wherein New Jersey court ruled that the
surrogacy contract was invalid according to public policy, recognized Mary Beth Whitehead
as the child's legal mother, and ordered the Family Court to determine whether Whitehead,
as mother, or Stern, as father, should have legal custody of the infant, using the conventional
'best interests of the child' analysis. Stern was awarded custody, with Whitehead having
visitation rights.17

5.2 The agony of the LGBTQ community

The new Surrogacy (Regulation) Bill, 2019 makes the condition that only legally married
heterosexual couples can opt for surrogacy, thus excluding single persons, divorcees, live-in
couples, widows and widowers, gay couples among others. Yet another condition is that
couples should have been married for five years and must be certified 'infertile' in order to be
able to hire surrogates. It also says that under altruistic surrogacy no monetary benefits
should be involved other than the medical expenses and insurance..

17
​In re Baby M, 109 N.J. 396, 537 A.2d 1227, 1988 N.J. LEXIS 1, 77 A.L.R.4th 1 (N.J. Feb. 3, 1988)
 27

Trans Activists and pride communities across the communities expressed their
disappointment to this condition. They believe that parenthood is beyond gender, sexuality or
sexual preferences. It is a universal desire that should not be prevented on the basis of
sexual orientation. It makes us question consonance with the historical judgement of
abolishing section 377 as well as its consonance with article 14 the Fundamental right to
freedom. It denies social justice to sexual minorities in the nation. A closer look at history
reveals that India's first IVF baby was born through a surrogate commissioned by a single
man in 1978.

The Surrogacy (Regulation) Bill 2019 states that "a married woman between the ages of 25
and 35 who has a child of her own can be a surrogate or can help in surrogacy by donating
her egg".18

Thus we see that this bill is not in accordance with many stances and moves of the
government itself.

Activists like Harish Iyer also felt that if the aim of the bill was to ​protect the rights of
surrogate mothers and to steer against making wombs-on-rent a norm, there would have
been a plan to rehabilitate and integrate surrogate moms into our societal framework.19

"If surrogacy is out of bounds for queer persons, has the government strengthened its policy
for adoption by queer persons? The answer is a loud "no". There are enough studies in the
west that prove that queer persons make good parents, not as good as but better than
heterosexual persons," he added

18
The Surrogacy Regulation Bill 2019
https://hrln.org/wp-content/uploads/2019/08/Surrogacy-Regulation-Bill-2019.pdf

19
The New Surrogacy Bill won’t let live-in and LGBTQ couples become parents
https://www.news18.com/news/india/the-new-surrogacy-bill-wont-let-live-in-and-lgbtq-couples-become-parents-
1979055.html
 28

5.3 Other Loopholes

The bill is also extremely unclear about who can be considered a relative. Further
sociologists also felt that the Surrogacy bill has not been made considering modern
marriages and relationships. Many couples today tend to marry later and have children later,
preferring to have the child through surrogacy due to complications that arise in pregnancy if
the woman is older than 35 years of age. Further the requirement of a couple being married
for five years again fails to take into account the nature of modern relationships today.
Further, this bill prevents live-in couples from having a child through surrogacy even though
in many judgements the apex court has stated that live in couples are legally treated as
married couples.20
Further, it states only "close relatives" can become surrogates which does not take into
account the inequality that remained in many families.. It completely forgets that women are
often the most powerless within a family system. Just because the transaction is taking place
within the family does not necessarily imply that the woman is not being coerced for forced. It
might be possible that within the family a daughter or a daughter in law is forced to become a
surrogate for someone. Further, since this is within the family, there is no legislation, no
terms of contract and nothing the law can do to prevent women from being coerced into
becoming surrogates.

20

https://www.thebetterindia.com/132607/want-to-get-into-a-live-in-relationship-here-are-the-rights-you-need-to-kn
ow/
 29
5.4 Does the surrogacy bill take away women's bodily autonomy

Experts and activists said that banning commercial surrogacy will also take away the
livelihoods of women who rented out their wombs and would deny women rights over their
own bodies.

The bill states that women can not rent out their wombs even if they consent to.

Many women from low income groups found that becoming a surrogate mother was lucrative,
these women normally did not even earn 3-4 thousand rupees a month and if they became
surrogates they could earn up to 20-40 thousand rupees a month. This enabled many
women to become financially independent and have a greater say in the decision making
matters of the household. It does not allow women agency over their own bodies.

“Governments in power always like controlling women and their bodies,” Madhavi Menon,
Professor at Ashoka University said. “The Bill is largely an exercise in moral policing and
social engineering. Banning surrogacy will only take away from women yet another means of
their livelihood.”21

“Women are once again being asked to use their bodies for the greater good without getting
paid for it,” Menon wrote in ​Scroll.in on August 6. “Motherhood will be mystified as sacred,
and women will be punished for being independent.”

21
Almost final surrogacy ban for single parents, homosexuals and live in couples
https://www.indiaspend.com/almost-final-surrogacy-ban-for-single-parents-homosexuals-live-in-couples/
 30

5.5. The rise of an underground market for surrogacy

Commercial Surrogacy is a roughly 16 year old industry which is estimated to be worth 2.3
Billion dollars annually.

Hari G Ramasubramanian, a Chennaibased surrogacy lawyer, says commercial surrogacy

will continue even if the government bans it in accordance with the 2014 draft of the ART
(Regulation) Bill. “The government is just pushing it to the black market.” He says the ban on
surrogacy for foreigners raises a lot of questions since exporting embryos is not permissible,
which means those foreign couples who have their embryos here cannot have them sent
back to their countries.22

It is estimated that surrogacy industry in India has a turnover of more than $400 million a
year.

Empirical evidence suggests that banning surrogacy in its entirety can push the entire
industry underground and lead to the emergence of a black market for surrogacy and making
surrogates prone to exploitation. Thailand, a popular destination for fertility tourism, banned
commercial surrogacy in 2015. However, the result was chaos. Some surrogates in various
stages of pregnancy were left in limbo. Intending parents did not know how to collect their
babies. Consequently, the surrogacy industry got pushed underground.

Foreign couples have already been banned by the Indian government refusing them entry
visas for fertility tourism. Without this permission, a couple cannot take a child born to a
surrogate in India out of the country. This bill will effectively kill fertility tourism which also

22

//economictimes.indiatimes.com/articleshow/49703554.cms?from=mdr&utm_source=contentofinterest&utm_medium=text&u
tm_campaign=cppst
 31
means it will take a significant chunk out of the $1 billion a year and growing Indian fertility
industry.23.  

5.6 The Right to Privacy

This bill also raises questions about the fundamental right to privacy. The Constitution
guarantees to each citizen the right to life and liberty. It is thus up to an individual how she
uses her body (without causing oneself harm, of course). In Indian society, a discussion in
infertility is often considered taboo. Couples tend to keep such facts within closed doors;
disclosing this medical condition can be seen as an invasion into someone’s privacy.

5.7 Religious views on Surrogacy

5.7.1 ​Hinduism
While Hindu scholars have not debated the issue extensively, T. C. Anand Kumar, a
renowned Indian reproductive biologist, argues that there is no conflict between Hinduism
and assisted reproduction. Others have supported this stance with reference to Hindu
mythology, including a story in the Bhagavata Purana which suggests the practice of
surrogate motherhood:24
Kan(sh) the wicked king of Mathura, had imprisoned his sister Devaki and her husband
Vasudeva because oracles had informed him that her child would be his killer. Every time
she delivered a child, he smashed its head on the floor. He killed six children. When the
seventh child was conceived, the gods intervened. They summoned the goddess Yogamaya
and had her transfer the fetus from the womb of Devaki to the womb of Rohini (Vasudeva’s

23
​http://www.hardnewsmedia.com/2016/09/surrogacy-bill-creating-black-market-wombs
​Kumar, TC Anand. "Ethical aspects of assisted reproduction – an Indian viewpoint". ​Reproductive BioMedicine
24

Online​. ​14​ (Suppl 1): 140–142. ​doi​:​10.1016/S1472-6483(10)60748-1

 32
other wife who lived with her sister Yashoda across the river Yamuna, in the village of
cowherds at Gokul). Thus the child conceived in one womb was incubated in and delivered
through another womb.25

5.7.2 Islam
In the islamic tradition, the surrogate motherhood is largely opposed. One of the main
reasons for this opposition is the complications that surrogacy raises on the issue of adultery.
Large majority of Muslim groups has raised this issue under the islamic law stating that
surrogacy is akin to the sin of ​Zina (Adultery). This is based on the fact that in gestational
surrogacy, the surrogate carries the fertilized egg of someone who is not her legal husband,
thus transgressing the bounds of Allah as stated in the Quran: “Those who guard their private
parts except from their spouses…” (Al-Mu’minun 23:5) “Whosoever goes beyond that are
indeed transgressors” (Al-Mu’minun 23:7).26

5.7.3 Buddhism
The stance of the buddhist community is largely inconclusive in nature. The prominent belief
is that Buddhism totally accepts surrogacy since there are no Buddhist teachings suggesting
that infertility treatments or surrogacy are immoral.This stance is further supported by the
common conception that serving as a surrogate mother is an expression of compassion and
therefore automatically aligns with Buddhist values. One Buddhist perspective on surrogacy
arises from the Buddhist belief in reincarnation as a manifestation of karma. According to this
view, surrogate motherhood circumvents the workings of karma by interfering with the natural
cycle of reincarnation. Others reference the Buddha directly who purportedly taught that
trade in sentient beings, including human beings, is not a righteous practice as it almost
always involves exploitation that causes suffering. 27 28

25
k​ eyadutta (June 6, 2016). "Surrogacy and Hindu mythology". herencyclopedia. Archived from the original on June 7, 2018. Retrieved
March 15,2019
26
​"The Islamic Ruling on Surrogate Motherhood"​. Ilm
​ Gate. October 1, 2010. Retrieved March 18, 2019.
27
​Damnoen, Somchai (August 4, 2017). ​"Buddhist Ethics and Surrogacy Problem of Thai Society"​. Rochester, NY.
28
​ ​"The Daily Enlightenment » Is Surrogacy Right In Buddhism?"​. Retrieved March 16, 2019.
 33
5.7.4 Catholicism
There are still debates within the catholicism whether the surrogacy is acceptable or not
because there is evidence for both the instances wherein surrogacy is accepted and where it
is not. Evidence against is that Paragraph 2376 of the Catechism of the Catholic Church
states that: "Techniques that entail the dissociation of husband and wife, by the intrusion of a
person other than the couple (donation of sperm or ovum, surrogate uterus), are gravely
immoral. Many proponents of this stance expresses concern that the sanctity of marriage
may be compromised by the insertion of a third party into the marriage contract. The
evidence for the support of surrogacy is that we can find mention of the process of surrogacy
in the bible as well. It follows the story of Sarah and Abrahim and how they are unable to
conceive a child of their own. Sarah therefore turns to her maid Hagar to be the mother of
Abrahim’s child. This is the first written record of traditional surrogacy.

 
 
 
 34

 
CHAPTER 6 
 
CONCLUSION 

Our main objectives behind conducting this research has been to know and comprehend the
views of the general public (through literature review) and advocates (through telephonic
interview) who are in direct link with the profession of law about abolishing or retaining The
Surrogacy Regulation Bill 2019 in India and its moral, ethical aspects as well as implications
of its legislation.
We understand that while major religions are against the practice of surrogacy or look down
on inferitty its the only way for many couples across the country who are unable to have
children due to infetrilrity or because there is a single person wanting a child or because both
the couples belong to the same sex or any other reason, surrogacy is a boon that enables
them to go through the rewarding experience of parenting. However the revent Surrogacy Bill
of 2019 allows only heterosexual married couples to have children through surrogacy and
bans commercial surrogacy.
This according to many LGBTQA groups goes agaisnt the basic right of equality and
according to feminist groups doesnt allow women to excercise their agency on their own
bodies.
Further, the bill is very vague about certain concepts thus increasing its loopholes and
reducing its applicability. There is a fear that the enactment of this Bill will lead to an
unprecedented exploitation of surrogate mothers as the industry will tend to shift to the
underground economy.
The lawyers we interviewed acknowledged that the bill has many loopholes, all three of them
unanimously agreed that it will lead to the emergence of a black market for surrogacy and
that the bill provides no clarity on various concepts, however they did agree that many
 35
women are exploited under the surrogacy industry currently and that there needs to be active
measures taken for that.

 
 36
 
CHAPTER 7  
 
RECOMMENDATIONS  

Retaining the Surrogacy (Regulation) bill 2019 is not an issue but rather a welcome change
looking at the deplorable conditions and the exploitation of the surrogate mother. What we
noticed is that the makers of this bill did not take into account the various reasons as to why
surrogacy was introduced – Surrogacy is an extraordinary journey and a deeply rewarding
experience which everyone deserves a chance to live through. For intended parents, it is the
chance to finally complete their family and realise their dreams of parenthood. Even though
the bill comes from a heart to do good by the surrogate mothers the bill unknowingly might
be leading to even greater problems for both the intended parties. The first loophole identified
by us during the course of this research is the limitation of this bill only to married
heterosexual couples. The reason behind this particular clause might be underdeveloped or
the gray areas regarding the marriages of the LGBTQ community or the future of the live-in
couples and single parents. Rather than excluding the said sections of the society from the
joys of parenthood only on the basis of uncertainty regarding the future of the surrogate baby
arising from the shortcomings in previous laws regarding these communities. Our legislators
should come up with a system of checks and balances to ensure maximum future securities
to the surrogate baby and at the same time equal rights to all the sections of society.
Second loophole would be the complete banning of commercial surrogacy and allowing only
altruistic surrogacy and that too only by close relatives. Wherein it fails to mention who all are
regarded as ‘Close Relatives’. Though the surrogacy situation in India is less than ideal,
where a poor woman is forced to rent her womb to keep her family afloat from poverty. The
complete banning of surrogacy would only lead to the movement of this process to the
underground market where there will be no governing authorities to regulate the exploitation
faced by these women. Therefore, we believe that the bill needs to be a little lenient in its
 37
terms because it might unknowingly be pushing for a greater misconduct to the surrogate
mothers.
What we need is a Bill that ties up all loose threads and leaves no gray area and is inclusive
for all the sections of the society with regards to their right to equality and at the same time
needs to be sensitive to the driving force of the surrogate mothers into this role without
harming the either intended parties.

 
 38

 
REFERENCES 

1. https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2019
Surrogacy (Regulation) Bill, 2019

2. https://journals.sagepub.com/doi/10.1177/2455632718778375
Has India’s Surrogacy Bill Failed Women Who Become Surrogates?
Smitha Sasidharan Nair​, ​Rajesh Kalarivayil​, ​First Published June 19, 2018

3. https://www.jstor.org/stable/23214649

Emergence of the 'Surrogacy Industry' Author(s): SNEHA BANERJEE Source:

Economic and Political Weekly, Vol. 47, No. 11 (MARCH 17, 2012), pp. 27-29
Published by: Economic and Political Weekly Stable

4. https://www.jstor.org/stable/43670030?seq=1#page_scan_tab_contents

ALTRUISTIC AGENCIES AND COMPASSIONATE CONSUMERS: Moral Framing of

Transnational Surrogacy Author(s): SHARMILA RUDRAPPA and CAITLYN COLLINS
Source: Gender and Society, Vol. 29, No. 6 (December 2015), pp. 937-959 Published
by: Sage Publications, Inc. Stable

5. https://feminisminindia.com/2019/08/08/lok-sabha-passes-surrogacy-regulation-bill-20
19/

The Surrogacy (Regulation) Bill, 2019 denies Women agency over their bodies” by
Chandrika Manjunath.
 39

6. https://health.economictimes.indiatimes.com/news/policy/surrogacy-bill-critical-perspe
ctives/70553442
Sonali Kusum, Assistant Professor (Law) TISS Mumbai. Surrogacy Bill -Critical
Perspectives.

7. https://www.orfonline.org/expert-speak/the-surrogacy-bill-a-much-needed-reform-that-f
ails-the-test-46409/
(Spriha Shukla is a Researcher at Observer Research Foundation, Mumbai) ​The
Surrogacy Bill: A much-needed reform that fails the test”.

8. http://thetarrytownmeetings.org/sites/default/files/BabyManji.pdf​.
Commercial Surrogacy and Fertility Tourism in India ​. Kennan Institute of Ethics, Duke
University

9. https://www.news18.com/news/india/the-new-surrogacy-bill-wont-let-live-in-and-lgbtq-
couples-become-parents-1979055.html
The New Surrogacy Bill won’t let live-in and LGBTQ couples become parents

10. https://www.indiaspend.com/almost-final-surrogacy-ban-for-single-parents-homosexua
ls-live-in-couples/
Almost final surrogacy ban for single parents, homosexuals and live in couples

11. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4345743/
Social, ethical, medical & legal aspects of surrogacy: an Indian scenario by ​R. S.
Sharma
 40
12. https://www.casebriefs.com/blog/law/family-law/family-law-keyed-to-weisberg/adoption
-and-alternatives-to-adoption/in-re-baby-m/
In re Baby M, 109 N.J. 396, 537 A.2d 1227, 1988 N.J. LEXIS 1, 77 A.L.R.4th 1 (N.J.
Feb. 3, 1988)​. Baby M case study

13. https://www.indiaspend.com/almost-final-surrogacy-ban-for-single-parents-homosexua
ls-live-in-couples/
Almost final surrogacy ban for single parents, homosexuals and live in couples

14. https://www.livemint.com/Politics/7s6VUehbfeqgtKwyc32CcJ/Indian-surrogate-mother
s-grab-last-chance-to-make-babies-ahe.html

15. https://www.indiaspend.com/almost-final-surrogacy-ban-for-single-parents-homosexua
ls-live-in-couples/

16. https://yaleglobal.yale.edu/content/india-poised-restrict-surrogate-pregnancies
 41
APPENDIX 
 
 
In conversation with Advocate Deepanjal Choudhary

Q1. Is the new surrogacy regulation bill 2019 socially and ethically accurate?

A1.I will answer your questions in two parts talking about the social aspect. I think in the
social sense the new surrogacy bill 2019 is both positive and negative, positive in the sense
that since many decades india had become a hub for unethical and many forms of surrogacy,
surrogate mothers who are overly exploited without any clear terms of contracts with them
and they were subject to atrocities. Now talking about the ethical aspect, it again has positive
and negative aspects, since the surrogacy market was not regulated there were many
instances of forced surrogacy. Poor women did not know the outcome of being surrogate
mothers, it had a negative impact on their health as well. As surrogate mother women living
below the poverty line getting 20-30 k for being a surrogate mother, found it a good way to
keep the family above poverty. But this is a sphere that needs to be regulated because
women needs to know how her reproductive health should be. So it socially and ethically has
positive and negative effects.

Q2. You mentioned that poor women are sometimes forced to be surrogates, now the
regulation bill says that only close relatives can be surrogates. How can we be so sure that
the close relatives aren't being forced into being a surrogate mother. How will we stop the in
house exploitation of these women?

A2. The bill says that even for an altruistic surgery which oh is altruistic surrogacy in which
only a relative can be a surrogate mother,in this apart from the fact that only couples from
25-50 years can have a surrogate baby, but for the woman who needs to be a surrogate
mother has to be in the age bracket of 25-35 years. And given the social setting in Indian
families there is a pressure from in-laws or other relatives to bear child of a couple who is in
infertile, this is a loophole in the current bill.They should add this to the bill and making sure
that the surrogate mother which will be a close relative gives her consent without coercion
and it is out of her free will. This should be amended in the bill.

Q3. Is the surrogacy regulation bill 2019 in consonance of the ruling of the supreme court
wherein it gives equal rights to LGBTQ community after striking down Article 377?

A3. So Section 377 apart from dealing with equal rights it is mainly concerned with the sexual
aspect of it. The social justice part of it, which they should be but we cannot say that this
 42
legislation is against the ruling because this article lays down only regulations on who can
have a surrogate baby, unmarried or gay couples can not have it. It wouild be more socially
just if they allowed gay and lesbain couples to have a surrogate baby. But this bill is not
against the ruling. Even live in partners are not allowed to have a surrogate baby. Live in
partners are not allowed to have a surrogate baby, ​even the supreme court gave out a
judgement 2 years ago that live in partners are supposed to be equal to married couples.

Q4. The surrogacy market in India before banning was t 2.5Billion dollars a year. Do you think that the
news surrogacy bill will be the perpetrator of a new black market aspect.?

A4. There is a high chance that this could turn into a black market, preventing that from happening
requires additional steps. What I would suggest is that effort should have been directed towards how
to reduce exploitation in surrogacy instead of banning surrogacy because for many poor women this
is a source of livelihood. You should make it a rule that women engaging in surrogacy can only do it
once in their life. They should have a proper contract system

Q5. Do you think this bill should be abolished or retained?

A5. The bill should be retained because it has been negotiated to the highest termsIt has some good
enabling provisions. It should not be abolished but it should be amended before it is passed as an act.

In conversation with Advocate Paramveer Dalal

Q1. Is the new Surrogacy (Regulation) Bill, 2019 socially, morally, ethically and religiously accurate?

A1. If we look at the reason as to why the bill came into existence- then yes, i would have to
say that the bill has an air to clear the social and ethical issues that the surrogate mothers
face. Most people who are questioning the shortcomings of this bill weren’t even aware of the
poor state of these surrogate mother- their reproductive health, the exploitation and the
secondary factors of them belonging to low income groups. I am not saying that there aren't
any loopholes in this bill, there are biggest one being complete ban of commercial surrogacy
and allowing only altruistic one. But the answer is in the question itself- it is a bill right now so
the parliament does have time to improve upon them. In short, the bill has some aspects to it
that doesn’t conform to the norms of society and their ethical values but that doesn’t mean
that the bill is wrong. The reason to bring forward this bill are very much legitimate we just
need to improve upon them. As for the religious part, I feel that it would be wrong of me to
comment on surrogacy from religious pov due to my lack of knowledge on the inner workings
of various religions and I believe every religion will have their different stands. There might
even be conflicting views in the same religion too.
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Q2. Is the Surrogacy Bill,2019 in consonance with the ruling of the supreme court wherein it
gives equal rights to the LGBTQ community after striking down Article 377?

A2. I have to agree that in some aspects the new bill does indeed violate the equal rights
given to the LGBTQ by the government after striking down the article 377 but we have to
have some trust in our parliament too, i believe that they might have taken this step keeping
in regard the fact that even though the LGBTQ have equal rights now they are not yet fully
accepted by society and that it might pose a danger to the future of the surrogate baby
similarly the government has also banned single parents and live in couples because they
are no laws right now which could decide the fate of the baby after the live in parents are
separated or the single parent suddenly decides that it doesn’t want the baby anymore. The
future well-being of the surrogate baby is one of the main reasons why this bill came into
existence. One very famous case regarding this situation is the Baby manji case, where the
couple got divorced before the baby was born. So, in conclusion. Yes, it is in some part
against the equal rights given to LGBTQ but in this case we have to give priority to the baby’s
well-being.

Q3. Is there a possibility that the new Surrogacy Bill, 2019 will be the perpetrator of a new
black market aspect?

A3. This is probably the biggest loophole in the new surrogacy bill according to me. The
parliament probably didn’t take into account the economical aspect of the bill. I am very sorry
to say but babies right now in the current world scenario are seen as commodities that
everyone needs to have and when you restrict or completely ban the means to get a prized
possession it almost always leads to that product turning up in the underground market at
even higher rates which would lead to more exploitation of the surrogate mother in the
absence of a proper governing agency. So, yes there is a very high possibility that the new
Surrogacy Bill, 2019 will be the perpetrator of a new black market aspect.

Q4. Should Surrogacy Bill, 2019 be retained or abolished?

The surrogacy bill needs to be retained at all cost but the government needs to bring about some of
the above mentioned points for it to be truly effective.

In Conversation with Advocate Ali Azghar Rahim

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Q1. Is the new Surrogacy (Regulation) Bill, 2019 socially, morally, ethically and religiously accurate?

A1. I do believe that the surrogacy is religiously accurate as most religions are against the
practice of surrogacy, however I believe that the bill is not socially accurate. It has been
made on the assumptions of a society that does not resemble our society at all. Further, the
bill goes against the rights of sexual minorities. To add to that, banning of commercial
surrogacy will not help the state of the surrogate mothers in India. However, it is still in the
Bill stage so I hope they amend the bill in the Rajya Sabha so that they can address the
loopholes and make it more suitable for current Indian society.

Q2. Is the Surrogacy Bill,2019 in consonance with the ruling of the supreme court wherein it
gives equal rights to the LGBTQ community after striking down Article 377?

Absolutely not. I believe that this bill defies Article 14 the right to equality as well as the right
to privacy. Furthermore, this goes against the essence of striking down Section 377. I do
believe that the well being of the child is of utmost importance to the state but this prevention
of same sex couples from having children through surrogacy is problematic. However I do
believe that this has been done because the policymakers feel that India as a society has not
completely accepted members of the LGBTQA community.

Q3. Is there a possibility that the new Surrogacy Bill, 2019 will be the perpetrator of a new
black market aspect?

A3. I think that this is the biggest problem of the bill. In India, most things that are banned
end up in the black market which will further the exploitation of surrogate mothers. With
commodification becoming a prominent phenomenon across the globe, everything is a
commercial business, banning it will only push it into the black market. The policymakers,
instead of imposing a ban should come up with a system of regulation and proper contracts
to make this industry less prone to exploitation.
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Q4. Should Surrogacy Bill, 2019 be retained or abolished?

A4. I believe that the Surrogacy Bill needs to be amended significantly for it to have any
positive effect on our society. It needs to be amended along the lines I spoke about earlier.