Surrogacy Regulation to be Stuck Between Commercial Market, Family and State

Law has always been the attractive site of intense political, social and economic contest over women’s reproductive labor and when it comes to Surrogacy it is no exception. Over the past years, numerous legislative drafts on surrogacy have been proposed as they tried to make  India possibly the only country in the world to seriously consider all possible regulatory approaches to surrogacy. There were total three phases of regulation of surrogacy which are as follows; an emergent medico-liberal phase from the late 1990s up to 2008; a highly contested phase between 2008-2012 and a contracting and normative phase between 2012 and 2017.


The Standing Committee’s report:

The Bill which was introduced in parliament, November 2016 which was later referred to a Standing Committee, in its report in August 2017, where there was they reversed every key feature of the SRB. Extraordinarily, it was stated that imposing altruism on women was a paternalistic form of exploitation and these surrogates suffered from the lack of proper regulation of the surrogacy sector and from the even lower-paying alternatives they had to commercial surrogacy. It insisted to propose a model whereby women’s reproductive labor would be compensated at a rate fixed by the state taking into consideration numerous factors. Only gestational surrogacy would be permitted; the surrogate need not be related to the commissioning parents and would be empaneled. The surrogate was to receive extensive counseling to ensure informed consent; she was entitled to substantial insurance cover.

The committee liberalized the eligibility criteria for commissioning parents extending the surrogacy option to live-in couples, divorced women, widows, NRIs, PIOs and OCIs but not other foreign nationals. Also, one year of proven infertility was sufficient to avail of surrogacy. Instead of a parentage order, the committee proposed a comprehensive, legally binding agreement between the commissioning parents, the surrogate and the clinic, to be registered with the state.Counteracting the SRB’s carceral approach, the committee called for punishments to be proportionate to the nature of the infraction, always keeping in mind the best interests of the child born through surrogacy. Finally, it suggested that an independent agency with quasi-judicial powers resolves disputes between parties and that the ART Bill be passed prior to the SRB.

Proposed laws over the past 15 years have gone from being highly favorable to fertility clinics (and less so to surrogates) to protecting surrogates and punishing clinics. Over this time, categories of who could avail of commercial surrogacy progressively narrowed, excluding gay, lesbian and transgender individuals and couples in 2012, then foreigners, including even those of Indian origin in 2015. The 2016 SRB went a step further to prohibit commercial surrogacy altogether and replace it with a familial model of altruistic surrogacy.The Standing Committee’s compensated surrogacy model meanwhile liberalizes access to surrogacy and provides for compensation for the surrogate under the watchful eyes of the state. The state will set the compensation levels and even impanel surrogates. The regulator’s imagination has thus traversed from a medico-liberal model in 2005 to a socially conservative prohibitionist model in 2016 to a proto-socialist model in 2017 placing faith in turn in the market, family and the state, respectively, to protect the interests of surrogates and children born out of surrogacy.