mother, a two-judge bench of the Supreme
Court stated that commercial surrogacy is “legal
in India”. The fertility clinic run by Dr Nayana
Patel came in for harsh scrutiny, while Anand
emerged as the epicentre of the country’s “rent-
a-womb” industry, witnessing a mushrooming
of such clinics. Some even ran hostels for surro-
gate mothers, and not all were duly registered.
In the backdrop of the Baby Manji controversy
and similar cases involving foreign couples, the
central government outlawed foreign nationals
hiring surrogate mothers in India. In the years
since, Indian film celebrities like Shah Rukh
Khan and Aamir Khan opted to have children
through surrogacy despite already having bio-
logical children, while Karan Johar and Tushar
Kapoor—both unmarried—became single par-
ents to children born through surrogates.
With the courts calling for a legislative frame-
work, the Centre moved the Surrogacy
(Regulation) Bill first in 2016 and reintroduced
it in the Lok Sabha this year with amendments.
Calling commercial surrogacy “exploitative and
unethical”, the bill allows only altruistic surro-
gacy by a married “close relative”, in the 25-
age group, of the infertile aspiring parent, in
which no money besides that spent on the sur-
rogate mother’s healthcare is involved. Only a
mother with her own biological child is allowed
to be a surrogate, and just once in her lifetime.
The bill also requires an “infertile couple”, who
need to have been married for at least five years,
to seek a certificate of infertility from a govern-
ment-nominated medical board before engag-
ing a surrogate. An infertile parent too can find
a surrogate mother only once.T
HE parliamentary standing committee had
noted that there could be “compulsion and
coercion” even in the case of close relatives
agreeing for altruistic surrogacy. In fact,
the Union ministry for women and child devel-
opment (WCD) had suggested a regulatory
mechanism at the parliamentary committee
discussions, but the government chose to over-
look it. In his submissions before the commit-
tee, Chetan Sanghi, then joint secretary in the
WCD ministry had pushed for surrogacy to be
allowed for “every Indian woman—married,
single, divorced or widowed—irrespective of
their ability to bear a child”. Opposing the idea
of altruistic surrogacy by a close relative, Sanghi
had suggested that surrogates must be “empan-
elled by the states and should have an option to
withdraw their names.... A surrogate mother, if
declared medically fit, should be provided the
option of being surrogate twice in her lifetime,
with three years of interval period between two
pregnancies.” The WCD ministry had also
insisted that a complete ban on commercial
surrogacy would open the floodgates for an
unregulated market.
Most experts told the committee that the
government should instead make it mandatory
for a “comprehensive legally binding agree-
ment between the intending parent(s) and the
surrogate mother providing for monetary
compensation, its pre and post delivery dis-
bursement and the follow-up care for
surrogates.” While finalising the bill, the
government rejected nearly all the obser-
vations of the committee.
“The bill is patently absurd, lacking in under-
standing of ART and misplaced in its
und erstanding of social norms vis-à-
vis infertility,” says Dr Rita Bakshi,
who runs International Fertility
Centre in Delhi. “While there
was a need for a law to regu-
late surrogacy, the govern-
ment has brought in one that
prohibits it. The five-year
period before which an
infer tile couple cannot seek
a surrogate is the most ridic-
ulous clause as many womenComplete ban on
commercial surrogacy
Only altruistic surrogacy
by a close relative will
be allowed
The close relative
agreeing to be a
surrogate should be
married, aged between
25 and 35 years and
have her own child
Only a couple, married
for at least five years
and certified as infertile
by a government-
appointed medical board
is eligible to have a child
through surrogacy
People from LGBTQ
communities, those
unmarried, divorced or
widowed can’t
commission surrogacy
Registered medical
practitioners, any person
who owns a surrogacy
clinic or is employed in
one, or a person who
acts as an agent for
commercial surrogacy,
is liable to be jailed for
five years and pay a fine
of Rs 10 lakh
Any couple who
commissions
commercial surrogacy is
liable to five-year jail
term and Rs 5 lakh fine;
subsequent offence to
attract 10 years in jail
and fine of Rs 10 lakh
All offences to be
cognisable, non-bailable
and non-compoundableCROTCHET
FOR CORDSHADOW OF
LAW A fertility
clinic in DelhiPhotographs: TRIBHUVAN TIWARI