Rostrum’s Law Review | ISSN: 2321-3787

A Case for Commercial Surrogacy


The 1900’s and early 2000’s was quite an exciting time for India. It was during this period that India played an active role in encompassing technologies and innovations that were aimed at promoting In-Vitro Fertilisation as well as surrogacy within its borders. Prior to this technology, intending parents had to adopt another’s child in order to become parents. Not long after its introduction, Commercial Surrogacy became so popular that doctors as well as women and families started flocking to surrogacy clinics in the attempt to strike a deal or a contract with a “foreign couple” and earn a handsome sum of money in order to support their family. This resulted in a large boom in the business of commercial surrogacy as a consequence of the process being moderately unregulated.[1] Husbands convinced their wives to bear surrogate children, while mothers claimed to have undergone the process themselves in order to convince their daughters.[2] If bearing child once wasn’t enough, women would find another intending couple to strike a contract with. The entire process of childbirth eventually turned into a cesspool of commercial transactions.[3]

As such, The Assisted Reproductive Technology (Regulations) Draft Rules , 2010 (ART)[4] later redrafted in 2014[5], as well as The Surrogacy (Regulations) Bill, 2016[6] were introduced in an attempt to curb the exploitation of women as surrogate mothers.

This article analyses the definition and concept of Surrogacy and its importance and relevance in the 21st century. In addition, it also explores the ban on commercial surrogacy that The Surrogacy (Regulations) Bill, 2016 proposes, along with a comparative study of altruistic and commercial surrogacy.

Surrogacy, Its Importance And Relevance In The 21st Century

  1. Why Surrogacy?

While adoption could be considered by many as a perfectly viable option for couples who want to have a child, it brings with it a list of shortcomings. Surrogacy essentially provides parents the option of having a child genetically linked to them even if they are medically infertile. This technology opened up a realm of possibilities for parents who had lost hope of having children of their own.

It is currently estimated that 15 percent of couples around the world are infertile. This implies that infertility could be considered as one of the most prevalent medical problems. With the enormous advances in medicine and medical technologies, today 85 percent of the cases of infertility can be taken care of through medicines, surgery and/or the new medical technologies such as in vitro fertilization (IVF) or intracytoplasmic sperm injection (ICSI). [7]

The last nearly 20 years have seen an exponential growth of infertility clinics that use techniques requiring handling of spermatozoa or the oocyte outside the body, or the use of a surrogate mother. Anyone could open infertility or assisted reproductive technology (ART) clinic; no permission is required to do so. There has been, consequently a mushrooming of such clinics around the country.[8]

As a result, not only has surrogacy found its niche in the 21st century, but has managed to garner importance due to its feasibility.

Relevance of Surrogacy

The importance of surrogacy coupled with the mind-set of the 21st century further classified surrogacy into two different classes.

Commercial Surrogacy

Commercial surrogacy is a type of surrogacy where the surrogate mother is paid a sum of money apart from medical expenses and medical insurance for the surrogate child. Section 2 (f) of the Surrogacy (Regulations) Bill defines Surrogacy as “Commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother”.[9]

The concept of commercial surrogacy, being relatively new, spread exponentially across the country.[10] In no time, India became a hub of surrogacy clinics and surrogate mothers. This fertility market with its reproductive tourism industry was reportedly estimated at 2 Billion dollars a year.[11]

Trying to gain as much from the opportunity provided, women from impoverished communities opted to be surrogate mothers as an easy way of earning money.[12]

Altruistic Surrogacy

In a traditional or gestational surrogacy, if the surrogate mother receives no monetary or financial compensation other than reimbursement of medical expenses along with other reasonable expenses the surrogacy is said to be altruistic.

Reasonable expenses may vary from country to country but include the basic expenses that the surrogate mother requires in order to properly carry the child to term. These may include essential vitamin pills, and travel to and from the hospital etc.[13]

Why the Need for Regulation of Commercial Surrogacy in India was Important.

Surrogacy has no doubt, provided a means to earn livelihood to a large section of families in India and has given them a chance to achieve the basic necessities of life like food, shelter, education, etc. However, it comes with its fair share of shortcomings which cannot be ignored as it affects the lives of a large number of people, including the life of the child.[14]

The boom of commercial surrogacy might not have been as evident in other states of India as it was in Gujarat. Accurately termed as the Gujarat scandal, it brought forth the murky side of the commercial surrogacy business to the eyes of the world. Gujarat had become a cesspool of surrogacy clinics with some even calling them baby farms.[15] Wombs were for rent and pregnancies were on sale, the spread of unregulated commercial transactions and the beacon that Gujarat had become, attracting all those who wanted a way to make easy money, paved the path for the need of strict rules and regulations governing commercial surrogacy in India. More importantly it was the case of  Baby Manji Yamada v. Union of India[16] in the Supreme Court of India that shed light on the importance of stringent rules and regulations for commercial surrogacy in India. The case presented a stalemate, with the judges asking “which law prohibits surrogacy” and the NGO (petitioner) countering it with “which law permits surrogacy”.[17]

Until recently, India had no regulations that safeguarded the interests of the surrogate mother and the surrogate child, while catering to the interests of the intending couple. The only regulations for surrogacy in India were a set of regulations prepared by Indian Council for Medical Research (ICMR) in 2005[18], to protect the rights of the surrogate mother, the new born child and the intending parents but it had its fair share of loopholes. However, the guidelines did not hold any legal validity and lacked enforceability. Although the ICMR Guidelines did exist, there was no central or state body to ensure that the regulations were followed when it came to commercial surrogacy.

The plaintiff, an NGO M/s. Satya, in the above mentioned case brought before the court issues relating to the citizenship of the surrogate child that was born to a Japanese couple who had come to Gujarat, India in search for a surrogate mother.

However, a month before the child was the couple filed for divorce. The father of the child, Ikufumi Yamada, wanted to take the child to Japan but the legal framework had no such provision for such a scenario. He faced opposition from the Japanese government who did not permit him to bring the child back home with him. The birth of the child was thus marred in legal controversy and bureaucracy.

However, this controversy spurred the government of India to enact a law regulating surrogacy.

In August 2009, the Law Commission of India delivered the Report which stated that:

The legal issues related with surrogacy are very complex and need to be addressed by a comprehensive legislation. Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society viz. family. Non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. Active legislative intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto. The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.’[19]

Following the suggestions given by the Law Commission, the government made certain amendments to the Assisted Reproductive Technologies (Regulation) Bill, 2010. Certain amendments to the bill are presented hereunder;

  1. If a foreigner or a foreign couple seeks sperm or egg donation, or surrogacy, in India, and a child is born as a consequence, the child, even though born in India, shall not be an Indian citizen.[20]
  2. The surrogate mother may receive monetary compensation for carrying the child in addition to healthcare and treatment expenses during pregnancy.[21]
  3. The surrogate mother will relinquish all parental rights over the child once the amount is transferred.[22]
  4. The prescribed age-limit for a surrogate mother in between 21-35 years and no woman shall act as a surrogate mother for more than five successful live births in her life, including her own children.[23]
  5. If the foreign party seeking surrogacy fails to take delivery of the child born to the surrogate mother commissioned by the foreign party, the local guardian shall be legally obliged to take delivery of the child and be free to hand the child over to an adoption agency, if the commissioned party or their legal representative fails to claim the child with Constitution of Authorities to regulate assisted reproductive technologies; establishment of National Advisory Board In one months of the birth of the child.[24]
  6. Constitution of Authorities to regulate assisted reproductive technologies; establishment of National Advisory Board.[25]The Surrogacy (Regulation) Bill, 2016

While the Assisted Reproductive Technologies (Regulation) Bill, 2010 aimed at plugging the legal holes that plagued the practice of commercial surrogacy, it was fairly evident that more action on behalf of the government was required.

The government answered these growing concerns with the introduction of The Surrogacy (Regulation) Bill, 2016, which was referred to the Parliamentary Standing Committee on Health and Family Welfare.

While the Surrogacy (Regulation) Bill, 2016 aimed at encompassing the entirety of surrogacy under its legislation, it laid down quite stringent rules governing surrogacy. The bill looked at surrogacy and identified the cause of exploitation to be due to its commercial aspect and completely overlooked the lack of enforceable regulations and regulatory bodies.[26] Some sections of the bill are studied hereunder;

Section 2(g) of the act defines a couple as:

A legally married Indian man and woman above the age of 21 years and 18 years respectively’.[27]

Section 2(r) of the act defines an intending couple as:

A couple who have been medically certified to be an infertile couple and who intend to become parents through surrogacy[28]

While a cursory glass at this section may not reveal much, it excludes any person not conforming with this definition of couple from availing the services of a surrogate mother. The section excludes from it divorced parents, unmarried or single adults, members of the LGBT community as well as couples in a live-in relationship. While the Supreme Court of India has seen fit to legalise live-in relationships[29], this bill takes away their legal rights to have a surrogate child. The definition also necessitates the need for a medical infertility certificate. This medical certificate is issued to the intending couple by a District Medical Board however, doesn’t lay down an appeal process in case the certificate is denied.[30]

In addition to shortfalls with the demographic of the legislation, the bill also clamps down on candidates for altruistic surrogacy by laying down that ‘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’.[31]

However, what may be considered the most important aspect of the bill is the complete ban on commercial surrogacy. Commercial Surrogacy was first legalised in India in 2002[32] following which there have been countless debates over whether or not commercial surrogacy should remain legal.

This controversy, sparked by the apparent exploitation of women belonging to a lower socio-economic background and fueled by the Baby Manji Yamada v. Union of India [33] case, led to a total clampdown of Commercial Surrogacy by the government. However, there are still conflicting views on the ban of commercial surrogacy. The parliamentary standing committee in its 102nd report noted that,

In the altruistic arrangement, the commissioning couple gets a child; and doctors, lawyers and hospitals get paid.  However, the surrogate mothers are expected to practice altruism. Therefore, it is far removed from the ground realities. Altruistic surrogacy only by close relatives will always be because of compulsion and coercion and not because of altruism. The Bill’s emphasis on altruistic surrogacy, therefore, baffled the Committee.[34]

A Case For Commercial Surrogacy
Issues Facing Commercial Surrogacy

The laws on surrogacy or the guidelines issued thereto as a result of the boom in the demand for surrogacy could not be said to be all encompassing. As such, the surrogate mothers and babies were at the receiving end, as the unregulated surrogacy industry grew in India without enough legal provisions to safeguard their interests which lead to exploitation of these women who were generally from a poor background as a result of violation of medical guidelines.[35]

Ms. Ranjana Kumari, Director of Centre for Social Research (CSR), highlighted some issues that plagued the surrogacy industry.

Due to the commercialisation of surrogacy, the plight of the surrogate mother and the unborn child is often ignored. There is a need for a concrete legal framework to monitor and regulate the existing surrogacy system to safeguard the interests of surrogate mother and the child,”

“The surrogate mothers are not given a copy of the written contract which is signed between surrogate mother, the commissioning parents and fertility physicians because of which they are not even aware of the clauses of the contract. Moreover, some surrogate mothers are also impregnated without their knowledge to ensure high success rate. In case of unhealthy pregnancies, abortions pills are given by the doctor to terminate the pregnancy and the surrogate simply thinks that she had a spontaneous abortion,” [36]

In addition to the possible exploitation of surrogate mothers, unregulated commercial surrogacy opens up another can of worms.

We visited an IVF clinic, one of Kolkata’s best and were treated like royalty. They never asked us why we wished for IVF or surrogacy. We were 35 then and I was perfectly fertile and capable of having my own kids. They were ready to help us with what they called ‘a very pretty and educated young woman’ who would be the egg donor. It was actually a vicious moneymaking network but we didn’t know it then.

The infertility clinic brought up a surrogate, a woman who wished to give her two daughters proper education with the money she would get through surrogacy. We not only gave the surrogate whatever she wanted, paid according to contract, but even decided to fund her daughters’ education. She got pregnant, but within a month she stopped taking our calls or coming to the clinic. The clinic sent people to track her, we came to know that she had aborted the foetus because by then she had got half of the sum assured and her husband had bought a shop that they wished to buy. The clinic asked me to sue her, we didn’t. I was pretty shocked at the unprofessional attitude of the clinic[37].

Such situations become innumerable without the presence of strict and reliable guidelines and regulations to prevent the exploitation of surrogate mothers, the intending couple as well as protection of the unborn surrogate child.

Is Altruistic Surrogacy a Viable Option?

Altruistic surrogacy is any surrogacy where the surrogate mother does not receive monetary compensation of any kind.[38] While commercial surrogacy may have been legalised by the Supreme Court[39], considering the exploitative nature of commercial surrogacy especially in the case of surrogate mothers hailing from a poor socio-economic background the Law Commission of India stressed on the need to regulate and introduce firm legislation so as to prevent such exploitation.[40]

The commission held that “The draft Bill prepared by the ICMR is full of lacunae, nay, it is incomplete. However, it is a beacon to move forward in the direction of preparing legislation to regulate not only ART clinics but rights and obligations of all the parties to a surrogacy including rights of the surrogate child.”[41]

While the de-commercialisation of surrogacy was not enough, the bill institutes an embargo on the definition of a surrogate mother too. The bill states that only a woman who is a blood relative of the married infertile couple can possible be a surrogate mother[42]

This, restraint on the definition of a surrogate mother not only proposes a ban on commercial surrogacy but also introduces a handicap on altruistic surrogacy.

Considering the social norms and mind-set in India, unlike in the West, surrogacy within the family is next to impossible. Although sometimes within extended families’, biological parents often give their third or fourth child for adoption to a relative but surrogacy within the family is still unheard of.[43]

I don’t think this is possible or practical. There are several issues here which make the proposal totally unacceptable. It is difficult to find a surrogate within the family. A poor relation could be pressured into acting as a surrogate against her will. A child would find it emotionally very confusing to have a genetic mother and a birth mother in proximity. If the government insists on altruistic surrogacy, this surrogate could also end up not being compensated for the physical and emotional labour she has put into bearing a child for another woman. She in turn could also use emotional blackmail by claiming the child is hers.[44]

In addition to the ethical and societal conditions that plague altruistic surrogacy, it is also necessary to consider long term effects of altruistic surrogacy.

Considering the limitations placed on surrogate mothers by the proposed bill, the ban on commercial surrogacy would ultimately drive the practice of commercial surrogacy underground.[45]

“But I don’t think it is feasible any more in India. Because commercial surrogacy has deep roots now what this bill will do is push the industry underground. It is hard to find a womb donor within the family and it is easier to rent a healthy womb and there is no risk to relatives that way. Surrogacy involves a complicated and risky process. Womb donors are impregnated with multiple embryos to improve chances of survival of the foetus. They are given hormonal injections with adverse effects, to hold on to the baby because it is a foreign object to the breeder woman’s body. Yes, surrogate mothers in the commercial parlance are called breeder women.  And in three months, if more than one baby holds, the healthiest baby is selected and the rest are washed. Can you imagine doing this to a relative?”[46]

Shri Chetan B. Sanghi, Joint Secretary, Ministry of Women and Child Development, in his deposition before the parliamentary standing committee on health and family welfare, was of the opinion that relatives and friends of intending couple should not serve as surrogates as it may lead to conflict of interest in the future.[47]

Additionally, Dr. Rita Bakshi, Vice-President, Indian Society of Third Party Assisted Reproduction (INSTAR), also took the same stance and objected to the surrogate mother being closely related to the intending couple.[48]

The Parliamentary Standing Committee conducted a clause by clause study and debate on the bill and weighed the advantages Vs. disadvantages before suggesting modifications. Some of the stakeholders pointed out that the Bill, promotes ‘forced labour’ as non-payment of any compensation was against Article 23 of the Constitution of India. Pure altruistic drive for any substantial and meaningful contribution of someone else’s life was unreasonable to expect in today’s economic and social environment. Endorsing altruistic surrogacy would undoubtedly enforce emotional and social pressure on close female relatives without any compensation for immense emotional and bodily labour of gestation involved in surrogacy as well as loss of livelihood. A woman could not possibly be expected to act as a surrogate and go through all the trial and tribulations of physical and emotional tolls of the arrangement free of cost and only out of compassion. The surrogate was indeed the most important stakeholder in the whole process and put her life at risk and thus should be compensated for doing so.[49]

It has also been argued that one cannot guarantee that the altruistic surrogate who is a ‘close relative’ is not coerced into becoming a surrogate by just removing the commercial component of the practice. Not every member of a family has the ability to resist a demand that she be a surrogate for another family member. As such within family, surrogacy might become even more exploitative than compensated surrogacy. In addition, with small family norms and increase in number of working women, very few ‘close relatives’ would be interested in helping out by being a surrogate. Also, the intending parents may not be comfortable sharing their infertility issue with their relatives as it is a private matter. In the present socio-cultural familial context where impotence and infertility is associated with social stigma and ridicule, such disclosure of medical incapacity of women to bear child before her in-laws and family members is breach of her privacy and confidentiality. This will rather put her at greater risk of domestic violence, abuse, name shaming, loss of respect, eviction of women from home and annulment of marriage.[50]

Given the patriarchal familial structure and power equations within families, not every member of a family has the ability to resist a demand that she be a surrogate for another family member. A close relative of the intending couple may be forced to become a surrogate which might become even more exploitative than commercial surrogacy.[51]

There are a plethora of issues surrounding the ban, that the Parliamentary Standing Committee has pointed out. However, one major causality of banning commercial surrogacy would be driving the entire process underground.

If commercial surrogacy is banned, the intended parents and surrogates would be forced to operate underground with a very high risk exposure. [52]

Considering the fact that most of the women opting to be surrogate mothers come from poor socio-economic backgrounds, by banning compensated surrogacy, there could be a black market in surrogacy services. The whole surrogacy service could go underground and would lead to increased exploitation with no mechanism for protection of any of the parties involved in the surrogacy arrangement. There is also the likelihood of surrogacy being driven underground involving illicit inter-country movement of women to be surrogate mothers into foreign nations or safe surrogacy heavens globally for monetary returns. This may subject the surrogate to worse sufferings. Hence, a prohibition of commercial sector is likely to hurt the very people it seeks to protect.[53]

But I don’t think it is feasible any more in India. Because commercial surrogacy has deep roots now what this bill will do is push the industry underground. It is hard to find a womb donor within the family and it is easier to rent a healthy womb and there is no risk to relatives that way.”, states Anirban Bhattacharya, who is the script writer of the documentary film Womb on Rent, in an interview with Amrita Mukherjee[54]

There clearly is a dire need to recognize that placing a blanket ban on commercial surrogacy and rigid guidelines for the proposed altruistic surrogacy cannot be an overarching solution to the problem of exploitation of women that the practice of commercial surrogacy might result in. The sector will merely be pushed underground with its inadequate and unsanitary medical conditions, and coercive practices[55], which would further hamper the precarious situation that the practice of commercial surrogacy is in.  Experts fear the ban may push the industry underground, making women offering surrogacy services only more vulnerable to health risks.[56]

The Benefits of Incentivising Surrogacy

While the legalisation of purely altruistic surrogacy may be a treacherous path to go down, the question that arises at this point is, “Is the legalisation of commercial surrogacy really the answer?”.

In my opinion, whether or not commercial surrogacy is legalised, is wholly dependent on whether or not strict guidelines, regulations, regulatory bodies, court procedures, etc. are put in place. These factors in effect are the lynchpin to the entire Surrogacy debate.

In the absence of these factors, if the government reinstitutes Commercial surrogacy we run the risk of returning to the same position India was in, and alternatively, in the event that the government does not reinstitute Commercial Surrogacy we run the risk of driving the practice underground which would only serve to further exploit the surrogate mother.

It could be argued that instead of putting a blanket ban on commercial surrogacy, a compensated surrogacy should be permitted and should be viewed as a form of labour that requires adequate labour protection by granting minimum conditions of work.[57]

Additionally, it is a private right of an individual to choose a means of attaining parenthood and family formation. A stringent legal framework is, therefore, required to control the illegal practices under the ambit of assisted reproduction technology.[58]

The Parliamentary Standing Committee was of the view that economic opportunities available to surrogates through surrogacy services could not be dismissed in a paternalistic manner. Permitting women to provide reproductive labour for free to another person but preventing them from being paid for their reproductive labour would be grossly unfair and arbitrary. The Committee also observed that many impoverished women were able to provide their children with education, construct home, start a small business, etc. by resorting to surrogacy, hence, there was no reason to take this ability from them. Altruistic surrogacy is another extreme and entailed high expectations from a woman willing to become a surrogate without any compensation or reward but a decision based on noble intentions and kindness. [59]

Pregnancy is not a one-minute job but a labour of nine months with far reaching implications regarding her health, her time and her family. In the altruistic arrangement, the commissioning couple gets a child; and doctors, lawyers and hospitals get paid. However, the surrogate mothers are expected to practice altruism without a single penny. The Committee, therefore, finds merit in the argument that the proposed altruistic surrogacy is far removed from the ground realities. The Committee is, therefore, of the view that expecting a woman, that too, a close relative to be altruistic enough to become a surrogate and endure all hardships of the surrogacy procedure in the pregnancy period and post-partum period is tantamount to another form of exploitation.”[60]


The laws on surrogacy in India are nowhere near perfect. Sometimes the right path is not the easiest one, a path that bans commercial surrogacy is evidently just as exploitative as reinstituting commercial surrogacy without regulations.

A possible way forward would be to introduce a system for a limit on the maximum and minimum consideration amount to be provided to the surrogate mother. This compensation would undoubtedly exclude necessary medical expenses and insurance for the mother and surrogate child. With the introduction of a minimum threshold and a maximum roof for the compensation it would provide for protection of surrogate mothers on both extremes of the spectrum in such that it prevents exploitation of women of a lower socioeconomic class by the intending parents while it also prevents exploitation of the parents by the surrogate mother.

Dr. Rita Bakshi, Vice-President, INSTAR suggested that there should be some kind of minimum as well as maximum capping on compensation amount to be paid to a surrogate mother. She was of the view that focus should also be on rights of intending parents along with the rights of surrogates.[61]

This compensation received could in effect be calculated by a competent authority based on the total family income of the surrogate mother. This would substantially reduce the risk of over exploitation of women belonging to a lower socio economic class thereby removing the notion that the surrogate mother would be forced or coerced into by her family members into being a surrogate mother. This system coupled with a minimum and maximum threshold for compensation would in effect serve to counterbalance the scales of familial coercion versus freedom of choice.

Additionally, the compensation could be in the form of a bond deposited with the Court. In order to make sure there is no unregulated transfer of funds a body could be instituted to monitor such transactions.

The possibilities for improvement are endless which in my opinion makes the ban on commercial surrogacy so myopic.

Shri Chetan B. Sanghi, the Joint Secretary, Ministry of Women and Child Development suggested that the option of surrogacy should be made available to every lawfully married infertile couple and also to every Indian woman whether married or single including not married; separated; widowed irrespective of their ability to bear the child. According to him, surrogacy should be allowed only after strict screening of intending parents as done in the case of adoption procedure and a provision of mandatory counselling of intending couple should be made wherein an option of adoption should also be explored.[62]

The Parliamentary Standing Committee learnt from surrogate mothers that they engaged themselves in surrogacy out of economic necessity and saw surrogacy as a means of economically uplifting their families. Surprisingly, their other economic options were equally, if not more, exploitative and nowhere close to being as remunerative as surrogacy. The Committee therefore was of the view that economic opportunities available to surrogates through surrogacy services should not be dismissed in a paternalistic manner. Permitting women to provide reproductive labour for free to another person but preventing them from being paid for their reproductive labour is grossly unfair and arbitrary. [63]

The report further goes on to elucidate various shortcomings on the Surrogacy (Regulations) Bill, 2016, and suggestions for modifications and amendments to its sections. In an era where India is barrelling towards the future, its regressive and constraining legislations like these that hold us back. As such, not only is it necessary for us to look at the law through the lens of the 21st century, but it also important for us to formulate our laws with the aim of encompassing all the needs of our citizens.

Errors do not cease to be errors simply because they’re ratified into law.
– E.A. BucchianeriBrushstrokes of a Gadfly.

This article is written by Abhijeet Kamath. Abhijeet is student at  GLC, Mumbai. This article secured 1st position in the RostrumLegal Essay Competition, 2017.


[1] The Assisted Reproductive Technologies (Regulation) Bill, 2010 Preamble

[2] Surrogacy becomes family enterprise in Gujarat, available at https://timesofindia.indiatimes.com/india/Surrogacy-becomes-family-enterprise-in-Gujarat/articleshow/24365108.cms (last visited 19th November 20170

[3] The Law Commission of India, 228th Report on Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy, (2009) last visited on (17/12/2017).

[4] The Assisted Reproductive Technology (Regulation) Rules – 2010, Indian Council of Medical Research available at https://www.icmr.nic.in/guide/ART%20REGULATION%20Draft%20Rules%201.pdf last visited on (17/12/2017).

[5] 102nd report on the Surrogacy (Regulation) Bill, 2016, presented to Rajya Sabha by Department-Related Parliamentary Standing Committee on Health and Family Welfare, available at https://www.prsindia.org last visited on (17/12/2017).

[6] The Surrogacy (Regulations) Bill, 2016. Bill 257 of 2016 available at https://www.prsindia.org/uploads/media/Surrogacy/Surrogacy(Regulation)%20Bill,%202016.pdf  last visited (17/17/2017).

[7] The Assisted Reproductive Technologies (Regulation) Bill, 2010, Preamble.

[8] Ibid.

[9] The Surrogacy (Regulations) Bill, 2016. Bill 257 of 2016, sub-section (f) of section 2.

[10] Supra 7.

[11] Supra 5.

[12] Indian surrogate mothers grab last chance to make babies ahead of ban, livemint, (19/01/2017) available at https://www.livemint.com/Politics/7s6VUehbfeqgtKwyc32CcJ/Indian-surrogate-mothers-grab-last-chance-to-make-babies-ahe.html last seen on (17/12/2017).

[13] The Surrogacy (Regulations) Bill, 2016. Bill 257 of 2016, sub-section (b) of section 2.

[14] Supra 12.

[15] Julian Robinson, Inside Indian baby farm hospital mothers convinced sell unwanted children traded slaves corrupt staff available at https://www.dailymail.co.uk/news/article-3551455/Inside-Indian-baby-farm-hospital-mothers-convinced-sell-unwanted-children-traded-slaves-corrupt-staff.html last visited on (19/12/2017).

[16] Baby Manji Yamada v. Union of India reported in (2008) 13 SCC 518.

[17]Dhananjay Mahapatra, Baby Manji’s case throws up need for law on surrogacy, The Times of India, (25/08/2008) available at https://timesofindia.indiatimes.com/india/Baby-Manjis-case-throws-up-need-for-law-on-surrogacy/articleshow/3400842.cms last visited on (19/12/2017).

[18] National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005 available at https://icmr.nic.in/art/art_clinics.html  last visited on (17/12/2017).

[19] Supra 3.

[20] The Assisted Reproductive Technologies (Regulation) Bill, 2010 subsection (8) of section 35.

[21] Ibid subsection (3) of section 34.

[22] Ibid subsection (4) of section 34.

[23] Ibid subsection (5) of section 34.

[24] Ibid subsection (19) of section 34.

[25] Ibid chapter II.

[26]Live Law News Network, Parliamentary Standing Committee Recommends Wide-Ranging Changes To The Surrogacy (Regulation) Bill, available at https://www.livelaw.in/parliamentary-standing-committee-recommends-wide-ranging-changes-surrogacy-regulation-bill-2016-read-report/ last visited on (17/12/2017).

[27] The Surrogacy (Regulations) Bill, 2016. Bill 257 of 2016, sub-section (g) of section 2.

[28] Ibid sub-section (r) of section 2.

[29]  Indra Sarma v. V.K. Sarma, (2014) (6) SCC (Crl) 593.

[30] Live Law News Network, Parliamentary Standing Committee Recommends Wide-Ranging Changes To The Surrogacy (Regulation) Bill, available at https://www.livelaw.in/parliamentary-standing-committee-recommends-wide-ranging-changes-surrogacy-regulation-bill-2016-read-report/ last visited on (19/12/2017).

[31] Supra 27 sub-section (iii) b (ii) of section 4.

[32]Anjora Sarangi,  Commercial Surrogacy in India available at https://eprints.lse.ac.uk/78483/1/Engenderings%20%E2%80%93%20Commercial%20Surrogacy%20in%20India.pdf last visited on (17/12/2017).

[33] Supra 16.

[34] Supra 30.

[35]Not enough safeguards for surrogate mother, child, says study, The Hindu (13/06/2016) available at  https://www.thehindu.com/news/national/not-enough-safeguards-for-surrogate-mother-child-says-study/article4924014.ece last visited on (17/12/2017).

[36] Ibid.

[37]Amrita Mukherjee, Why altruistic surrogacy is impossible in India available at https://www.atimes.com/altruistic-surrogacy-impossible-india/  last visited on (17/12/2017).

[38] The Surrogacy (Regulations) Bill, 2016. Bill 257 of 2016, sub-section (b) of section 2.

[39] Supra 16.

[40] Supra 3.

[41] Supra 3.

[42] Supra 38, sub-section (ze) of section 2.

[43] Supra 37.

[44] Supra 37.

[45] Ibid.

[46] Ibid.

[47] Supra 5.

[48] Ibid.

[49] Ibid.

[50] Ibid.

[51] Ibid.

[52] Banning Commercial Surrogacy Will Expose Women to Exploitation, The Economic Times (28/08/2016) available at https://economictimes.indiatimes.com/magazines/panache/banning-commercial-surrogacy-will-expose-women-to-exploitation/articleshow/53889509.cms last visited on (17/12/2017).

[53] Supra 5.

[54] Supra 37.

[55] Supra 32.

[56] Supra 14.

[57] Supra 5.

[58] Ibid.

[59] Ibid.

[60] Ibid.

[61] Ibid.

[62] Ibid.

[63] Ibid.

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