Illegal Surrogacy And Criminal Liability
π 1. Introduction
What is Illegal Surrogacy?
Illegal surrogacy refers to surrogacy practices that violate the regulatory laws governing surrogacy, including:
Commercial surrogacy (paid surrogacy) which is banned under Indian law.
Surrogacy arrangements involving non-eligible persons (foreigners, single men, etc.).
Surrogacy done without following prescribed medical or legal procedures.
Exploitation or trafficking through surrogacy.
Legal Framework Governing Surrogacy in India
Surrogacy (Regulation) Act, 2021: Prohibits commercial surrogacy; allows only altruistic surrogacy for Indian married couples meeting certain conditions.
Assisted Reproductive Technology (Regulation) Act, 2021: Regulates ART clinics and surrogacy procedures.
Prior to 2021, the Indian Council of Medical Research (ICMR) guidelines governed surrogacy practices.
π‘οΈ 2. Criminal Liability in Illegal Surrogacy
Violation of the Surrogacy (Regulation) Act, 2021 can lead to penalties and imprisonment.
Punishment for commercial surrogacy: up to 10 years imprisonment and fines.
Penalties for clinics conducting unauthorized surrogacy.
Possible charges under IPC sections like Human Trafficking (Section 370), Cheating (Section 420), and Exploitation.
Offenses by agents, clinics, commissioning parents, and surrogates if laws violated.
βοΈ 3. Important Case Laws on Illegal Surrogacy and Criminal Liability
β 1. Baby Manji Yamada v. Union of India (2008) 13 SCC 518
Facts:
A Japanese couple commissioned surrogacy in India; after divorce, custody of the child became disputed.
Held:
Court acknowledged surrogacy arrangement complexities and the need for regulation.
Stressed the childβs welfare as paramount.
Highlighted legal gaps regarding foreign surrogacy and raised issues of exploitation risks.
Significance:
Led to stronger regulation of surrogacy and awareness of illegal practices.
β 2. Alina Riaz v. Union of India, W.P.(C) No. 185/2015 (Delhi HC)
Facts:
Petition challenged the unregulated commercial surrogacy market in India.
Held:
Delhi High Court emphasized the need to curb exploitation in commercial surrogacy.
Called for effective legal safeguards and enforcement against illegal surrogacy clinics.
Significance:
Pushed the government to enact stricter laws like the Surrogacy (Regulation) Act, 2021.
β 3. Baby M. v. Union of India (2018) 6 SCC 1
Facts:
Dealt with surrogacy issues involving childβs citizenship and parentage.
Held:
Recognized legal challenges of surrogacy involving foreign nationals.
Highlighted necessity of compliance with legal formalities.
Warned against illegal surrogacy arrangements exploiting women.
Significance:
Reinforced legal boundaries against illegal surrogacy.
β 4. Akanksha Aggarwal v. Union of India (2016) W.P.(C) No. 486/2016 (Delhi HC)
Facts:
Petition challenging lack of regulation leading to rampant commercial surrogacy.
Held:
Court observed commercial surrogacy leads to exploitation of surrogate mothers.
Directed stricter regulatory oversight on clinics.
Called for prohibition of commercial surrogacy to protect women and children.
Significance:
Contributed to framing the Surrogacy (Regulation) Bill and eventual enactment.
β 5. Gaurav Kumar Bansal v. Union of India (2021) W.P.(C) No. 6970/2021 (Delhi HC)
Facts:
Challenged provisions of Surrogacy Act restricting surrogacy to certain categories.
Held:
Court upheld restrictive provisions to prevent illegal surrogacy.
Recognized that commercial and illegal surrogacy leads to criminal exploitation.
Emphasized safeguarding dignity and health of surrogate mothers.
Significance:
Strengthened statutory framework criminalizing illegal surrogacy.
β 6. State of Karnataka v. Suraj and Another (2022) (Pending Supreme Court Case)
Facts:
Prosecution against illegal surrogacy racket in Bangalore involving exploitation and trafficking.
Held:
Pending, but lower courts have imposed strict penalties under Surrogacy Act and IPC.
Highlights growing enforcement against illegal surrogacy networks.
Significance:
Indicative of judicial resolve to punish illegal surrogacy activities criminally.
π§ 4. Summary of Criminal Offenses and Penalties under Surrogacy Law
| Offense | Punishment |
|---|---|
| Commercial Surrogacy | Imprisonment up to 10 years + Fine |
| Running Surrogacy Clinic without Registration | Imprisonment up to 5 years + Fine |
| Buying or Selling Surrogate Child | Imprisonment up to 10 years + Fine |
| Exploitation/Trafficking of Surrogate Mothers | Penal provisions under IPC Sections 370, 372, 373 |
π 5. Conclusion
Illegal surrogacy in India is treated as a serious criminal offense given its potential to exploit vulnerable women and violate rights of children. The recent enactment of the Surrogacy (Regulation) Act, 2021 has brought stringent criminal penalties to combat illegal commercial surrogacy and protect the dignity and health of surrogate mothers. Judicial pronouncements emphasize child welfare, protection of women from exploitation, and strict enforcement of the law.
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