India's parliament is currently considering a draft bill that would set down rules, regulations and penalties concerning the controversial issue of surrogacy in the country. The author says such a law is needed to clarify all types of surrogacy, including commercial arrangements involving monetary compensation. Photo: iStock/FotoShocK

Charges of illegal surrogacy currently in the news in India make it necessary to examine the relevant legal issues to better understand how the country’s surrogacy policies work.

At present, there is only a draft bill on surrogacy, which has been reviewed by a parliamentary standing committee but is yet to be passed into law so there is no binding act on surrogacy in India.

There have been Supreme Court judgments such as Baby Manji Yamada vs Union of India 2008, in which the court held that there is no law prohibiting surrogacy or penalties for commercial surrogacy.

There is a public interest litigation (PIL), Jayashree Wade vs Union of India (2015), along with a civil appeal in Union of India vs Jan Balaz  (2010), which is subject to adjudication before the Supreme Court on issues of legalization of surrogacy and permissible forms of surrogacy as commercial or altruistic — a final verdict is overdue.

Apart from these, there are periodical government circulars issued by the Home Ministry and the Ministry of Health and Family Welfare that are to regulate permits for foreigners, or non-resident Indians, overseas citizens of India, or persons of Indian origin, singles, same-sex partners and others.

But an act would ensure strict compliance with oversight by administrative bodies. Any violation would result in criminal sanction as provided in the act — either incarceration, fines or monetary compensation

There are medical guidelines, but only in the Indian Council of Medical Research Guidelines 2005. But guidelines are distinct from an act of parliament. First, the guidelines have no binding, mandatory legal force, only voluntary or persuasive force in the community. So, the binding effect is minimal and there are no criminal sanctions such as imprisonment, fines or compensation for non-compliance. No financial damages are associated with the guidelines. But an act would ensure strict compliance with oversight by administrative bodies. Any violation would result in criminal sanction as provided in the act — either incarceration, fines or monetary compensation.

A criminal complaint may be lodged under the relevant provisions of the act. Medical guidelines are not the same as an act; however, select provisions of guidelines may be included in the framing the law.

Given the absence of a legal statue, there is no statutory or administrative supervision or monitoring authority to regulate the conduct of IVF (in-vitro fertilization) and ART (assisted reproductive technology) clinics. The surrogacy bill would set up regulatory bodies such as a national surrogacy board and state surrogacy boards. The preamble to the Surrogacy Bill calls for the appointment of “appropriate authorities” to regulate surrogacy. But while the bill remains unproclaimed, these bodies don’t exist.

In this legal limbo it is not possible to distinguish between legal and illegal surrogacy in India. An act would define key terms, set out the provisions of the administrative or regulatory authorities, enumerate the standard uniform processes and provide for criminal sanctions for violations.

Surrogacy law needed to set legal standards

At present, there is neither a uniform, standard legal definition of surrogacy, nor is there any uniform standard setting preconditions or defining elements to determine if a surrogacy arrangement is lawful. There cannot be a violation until legislation lays down what constitutes legal or lawful surrogacy, including commercial surrogacy or any surrogacy arrangement involving monetary compensation.

The Surrogacy Bill would legalize altruistic surrogacy over commercial surrogacy with the latter subject to punishment.

The recent Rajya Sabha Standing Committee on Health and Family Welfare recommends legalization of compensated surrogacy over both commercial and altruistic surrogacy in India. Surrogacy without pay is unreasonable, the committee said.

The myth must be dispelled that all surrogacy arrangements involving monetary compensation are illegal per se or exploitative of surrogate mothers. This is not supported by facts. Altruistic surrogacy is not always free from exploitation. There are cases of surrogate mothers dying under an altruistic surrogacy arrangement following family and emotional coercion. Rather, timely legislation would resolve many of these issues and check similar cases in near future.

The author is a member of the International Surrogacy Forum. She was invited to the Rajya Sabha, the upper house of the Indian Parliament, to present her views on the Surrogacy Bill, and her recommendations are included in the Rajya Sabha Report No 102 on Surrogacy Bill 2016. See point 4.8, page 18, available here.

Sonali Kusum

Sonali Kusum is pursuing her PhD from National Law School Bangalore. She writes a regular monthly column in a law magazine and guest editorials in regional newspapers in Karnataka. Formerly she has been assistant professor at the Tata Institute of Social Sciences Mumbai.