The Surrogacy (Regulation) Bill, 2016 recently received the approval of the cabinet thereby

moving one step towards regulation of surrogacy in India. The Honble Supreme Court in the
year 2008 in Baby Manji Yamada case proceeded to hold that surrogacy in India is legitimate
only because neither there is any Indian law that prohibits surrogacy nor does it entail any civil
or criminal penalties thereby arising a need of an all-inclusive legislation which properly
addresses composite and heterogenic issues linked with surrogacy.

The surrogacy bill of 2016 proposes to completely ban commercial surrogacy in India but allows
altruistic surrogacy which is available for all heterogeneous couples suffering from proven
infertility. The bill intends to completely debar all foreign nationals including Non residential
Indians from getting surrogate mothers. The bill proposes to make it mandatory for all intending
couples to obtain a certificate of proven infertility of one or both members of the intending
couple, an order of parentage and custody of the surrogate child and insurance coverage for the
surrogate mother.

In addition to this the bill proposes to form a central and state level body i.e. the National
Surrogacy Board and the State Surrogacy Board to regulate surrogacy clinics in India. The
Bill also lays down offences such as undertaking or advertising commercial surrogacy, exploiting
the surrogate mother; abandoning, exploiting or disowning a surrogate child and selling or
importing human embryo or gametes for surrogacy proposing a minimum penalty of 10 years
and a fine up to 10 lakh rupees.

The draft bill is a step in right direction providing for surrogacy as an option to parents who have
been married for five years and cant naturally have children. The bill if enacted will be huge
attack on fertility clinics in India as this bill proposes to ban commercial surrogacy and any
person doing otherwise may face 10 years imprisonment. The most critical and important part
about the bill is that bill also seeks to clarify the legal position of such a child giving all legal
rights as a citizen. However the bill is not totally perfect and following loopholes can be clearly
observed.

The bill seeks to restrict overseas Indians, foreigners, unmarried couples, homosexuals, and live-
in couples from entering into a surrogacy arrangement thereby violating their Fundamental
Rights to equality. Secondly the bill escapes or misses to look at these restrictions as a violation
of personal liberty of surrogate mothers thereby violating there right under Article 21. Last, but
the most important loophole observed is that the bill fails to regulate or control all the surrogacy
which might be commercial but carried out in the garb of altruistic surrogacy.
Despite all these the bill is a good step in right direction which will efficiently protect the poor
surrogate mothers of India.