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The squabble against commercial surrogacy


As per the Black's Law Dictionary surrogacy means the process of carrying and delivering a child for another person. Surrogacy means to carry a child for another woman who is unable to produce one, due to certain complexities. The major types of surrogacy are Natural Surrogacy, Gestational Surrogacy, Commercial Surrogacy and Altruistic Surrogacy.

*Natural/Traditional/Partial Surrogacy:-In this type of surrogacy, there is genetic relation of embryo with surrogate and it is done with her own ovum. Commissioning father can donate the sperm and becomes the genetic father of the child. In this process, the sperm maybe taken from a third male person and in case where there are two females who are commissioning as parents can undertake the process or a single woman can also commission for the child.

* Gestational/Full Surrogacy:-In this type, surrogate acts as a carrier of embryo which is genetically not related to her. The pregnancy is obtained by the IVF and implantation of fertilized embryo is done in the surrogate’s uterus. In this, the embryo is fertilized by the commissioning parents or some other anonymous person.

 *Commercial Surrogacy:-In this type of surrogacy, the surrogate enjoys compensation in monetary terms for the service that she carries out.

*Altruistic Surrogacy:-In Altruistic Surrogacy, no financial benefits are given to surrogate. There are only medical expenses given in monetary terms as compensation by commissioning parents.

The major focus of this article is placed upon the matters which are being highlighted in the “Surrogacy Regulation Bill,2020” which was passed by the Rajya Sabha. Some of the highlights that we will be dealing in this article are as follows: First and foremost this bill completely prohibits commercial surrogacy and only allows altruistic surrogacy meaning the surrogate mothers are not subject to any compensation except for the basic medical expenses and insurance coverage.

Now, one of the most important reason due to the reason why surrogacy is opted is due to the issue of infertility. In India, infertility is considered as a major social stigma. Though, infertility is not that major of a disease, it is very devastating for the intending couples or even for that matter individuals to know that that will never be able to fulfill the socially accepted need for family without any fault of their own. In India, there is an unfluctuating structure and a strong desire of children. Ever since technology has dramatically enhanced in the past years, it has proven to be advantageous to the human life in many ways. Surrogacy has proven to be extremely helpful especially for the sterile married couples wherein evolution of technology has proven to be a boon for these kinds of couples. One of the most dubious ways to have a baby is through the process of surrogacy. Surrogacy is a procedure of reduplication whereby a woman agrees to carry a child and gives birth acting as a substitute forth contracted party/ies. Some of the modes for surrogacy are:-Natural, traditional, straight or gestational. The process of surrogacy has been a long disputed question in India. The ethicality of leasing a womb the moral and legal knottiness surrounding it have always been matters of misgiving.

Major issues and recommendations

One of the crucial changes of the Surrogacy Regulation Bill,2020 also raised a point of the surrogate mother being exploited which is, we believe, one of the reasons why commercial surrogacy is prohibited. But is it really worth prohibiting commercial surrogacy for the reason of exploitation? Is it really agreeable to legally discourage a service because of which a family gets blessed with a child, owing to the fact of exploitation? And thirdly, what exactly does the exploitation argument amount to? Also, in this service why isn’t the possibility of the commissioned parents being exploited taken into account? Due to lack of regulation and lack of transparency, the well as the intended parents surrogate as get exploited and the profit is earned by the middlemen and commercial agencies. However, even if we believe that in surrogacy exploitation does exist, because of which commercial surrogacy has been barred, it sums up to a quite fragile and incapacitated argument, which leads us to our second objective: the bill also draws our attention to (Altruistic Surrogacy), any willing women can perform this service, but the truth to be told: Surrogate women don’t just leap out or they are not manufactured. They are humans too, who perform this service for the greater good of a family, so rather than prohibiting commercial surrogacy which, if done, might actually lead to backfire which might be a starting point for something worse and shoddy than exploitation. Because banning or prohibiting something does not make that thing come to a standstill. So, surrogacy as a service and the conditions under which surrogates work must be improved, a close examination of the surrogates should be conducted wherein their background should be taken into consideration and why the surrogates choose this path should also be given a thought to which will certainly prevent any further stumbling block and a strict regulation should be made for about the transferring of embryos. Those who focus on the inherent inequalities of India’s surrogacy service or people who are cynical about this, only have an inclination towards prohibiting commercial surrogacy. Better understanding of this complex practice should be acquired and it should be open and transparent in medical and emotional exchanges. It is not about expansion of business or India’s tourism(As India is a hub for surrogacy because of its low expense), it is about creating proper and satisfactory guidelines and legislative regulation, because if commercial surrogacy is prohibited, the medical industry of surrogacy will sink and it will be exceedingly onerous to safeguard the child’s as well as the surrogate’s rights. As a matter of fact, there are poor, illiterate women from rural areas who undertake surrogacy and they are put in hostels for taking care of them and they spend nine months worrying about their families and who are unlikely to be paid monetary compensation. During the registration of surrogates, a fee must be set down so that there is no further negotiation and no unreasonable demands should be beseeched from the surrogates as they have their full bodily rights and she should be trusted by the intended couple. Complete reliance should be placed upon the generosity and decision making power of the surrogate. This means is that the surrogate should have respect, appreciation and understanding of the ethical significance of the important role that she plays. 


a technique in respect to compensation must be established and a proper check must be kept on the clinics and surrogate gamete banks to eliminate exploitation. Thus an effective legislation which is balanced in its approach is immediately needed to ensure the protection of the rights of all parties that are involved in this transaction. Surrogacy when completed legally and morally, proves to be a wonderful way for those intended couples who cannot conceive. This issue being not one of the regular transplant issues and hence surrogacy can’t be decided only on the accordance of the doctor and the patient but the rights of the unborn child should also be taken into consideration as well as protected.

In India, legislative implementation has always been challenging, so considering this the lawmakers should bear in mind any other devise or technique that could better the situation and achieve the purpose, because ban on surrogacy is the government’s response to stop exploitative practices but it should also bear in mind that there is no alternative solutions, and a ban does not necessarily cease an action but might result into something worse than that. Hence we conclude there is no rational explanation for not having legalized commercial surrogacy. Therefore, the lawmakers should look into this and consider whether it shall make a proper Act and give India a legal framework to regulate this practice.


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