The Surrogacy Bill, 2016
The Surrogacy (Regulation) Bill, 2016
1. Background
The Bill was introduced to regulate surrogacy in India, which had become largely unregulated, especially concerning commercial surrogacy.
Surrogacy involves a woman (surrogate mother) carrying a child for another person/couple (intended parents).
The Bill aims to protect surrogate mothers and the rights of the child, and prevent exploitation and commercialization.
2. Key Provisions of the Bill
a) Types of Surrogacy Allowed
Only “altruistic surrogacy” is permitted (no monetary compensation except medical expenses).
Commercial surrogacy is banned — surrogate mothers cannot be paid beyond reasonable medical expenses.
b) Eligibility
Surrogate mother:
Must be a close relative of the intending couple.
Married, aged between 25 to 35 years.
Can only act as surrogate mother once in her lifetime.
Intended parents:
Indian married couple, married for at least five years.
The couple must be infertile.
Age limits: Wife between 23 to 50 years; Husband between 26 to 55 years.
c) Surrogacy Clinics and Boards
The Bill provides for regulation of clinics offering surrogacy services.
It mandates the establishment of Surrogacy Boards at the central and state levels to monitor and regulate surrogacy activities.
d) Parentage and Rights of the Child
The intending couple is deemed the legal parents of the child born through surrogacy.
Surrogate mother has no parental rights over the child.
e) Prohibition of Foreigners and Single Persons
Only Indian married couples can avail surrogacy.
Foreign nationals, single individuals, and same-sex couples are excluded.
3. Rationale Behind the Bill
To prevent exploitation and commercialization of surrogacy.
To protect the rights, health, and dignity of surrogate mothers.
To provide legal clarity on parentage and custody of children born through surrogacy.
4. Challenges and Criticism
The Bill’s ban on commercial surrogacy led to concerns about:
Potential underground market.
Exclusion of unmarried, single, or LGBTQ+ individuals.
Restrictive eligibility criteria.
Enforcement and monitoring pose practical difficulties.
5. Important Case Law Related to Surrogacy
a) Baby Manji Yamada v. Union of India (2008) 13 SCC 518
The Supreme Court dealt with citizenship issues of a child born through surrogacy to a Japanese couple.
Highlighted the need for clear legal framework regarding surrogacy and parentage.
b) Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212
Though unrelated directly to surrogacy, this case underlines state responsibility to regulate medical and reproductive technologies.
c) Jan Balaz v. Anand Municipality, AIR 2011 SC 2647
Emphasized that child’s welfare and rights are paramount in surrogacy disputes.
d) Nand Kishore Chauhan v. Union of India (2019) 8 SCC 1
The Court discussed the need for a balance between rights of surrogate mothers and intended parents.
Supported regulation to avoid exploitation.
6. Subsequent Developments
The Bill has undergone changes and discussions; later, the Surrogacy (Regulation) Act, 2021 was enacted with stricter provisions.
The 2021 Act further tightens restrictions and regulates surrogacy more rigorously.
7. Summary
| Aspect | Detail |
|---|---|
| Type of Surrogacy Allowed | Only altruistic (no commercial surrogacy) |
| Eligibility of Surrogate Mother | Close relative, 25-35 years, married, once only |
| Intended Parents | Indian married couples, infertile, age limits |
| Regulation | Surrogacy Boards and regulation of clinics |
| Legal Parentage | Intended couple is legal parents |
| Prohibitions | No commercial surrogacy, no foreigners, singles, or LGBTQ+ |
Conclusion
The Surrogacy (Regulation) Bill, 2016 sought to address the growing concerns over unregulated surrogacy in India, balancing the protection of surrogate mothers and intended parents, while aiming to prevent exploitation. Judicial pronouncements have emphasized the need for a robust legal framework, which continues to evolve.
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