Surrogacy by Kanika Bhatia


A surrogacy agreement is an arrangement to carry a pregnancy for intended parents.

Surrogacy can be classified into two main types: gestational and traditional.

In case of gestational surrogacy, pregnancy occurs due to the transfer of an embryo created by in vitro fertilization such that the resulting child is genetically unrelated to the surrogate.

Traditional surrogacy involves impregnation of the surrogate naturally or artificially, and the resulting child is genetically related to the surrogate.

Commercial surrogacy was made legal in India with the landmark Supreme Court judgment and later, the Indian Council of Medical Research Guidelines 2005 which prescribed conduct and use of ART procedures or treatment by fertility clinics. The ART Bill legalized commercial surrogacy by prescribing monetary compensation to the surrogate mother by the intending couple.Law Commission Report No. 228 (2009) recommends legalization of altruistic or non-commercial surrogacy arrangements in India in order to protect the surrogate mother from exploitation.

On the basis of payment to a surrogate, surrogacy is of 2 types

a) Compensated/commercial surrogacy- When the surrogate mother is paid beyond  the medical expenses and such other prescribed expenses, and insurance coverage for carrying the child for the intending parents, it is called commercial surrogacy.  It also includes selling and buying of human embryos for surrogacy.

b) Altruistic surrogacy- When the surrogate mother does not receive any payment  except the medical expenses and such other prescribed expenses, and insurance  coverage for carrying the child for the intending parents, it is called altruistic  surrogacy. It is generally performed by a close member of the family or a friend.

The Home Ministry guidelines apply only to foreign couples andlimit the choice of surrogacy to heterosexual couples. However, the ART Bill allows surrogacy by all (including single or unmarried) and there is no restriction on sexual orientation or nationality.In India, many laws have been enforced to regulate surrogacy;but,they lack in clarity.

India only has guidelines and no legislation governing surrogacy. The surrogacy agreement governs the contractual relation between the parties. The surrogate could claim the child as her own or enforce parental visitation or custodial rights, thus creating problems. Also, the surrogate’s husband may claim the child under section 112 of the Evidence Act.It is very important for the parents in this arrangement to prepare afullproof surrogacy agreement and ensure a strong contract.

It was formulated for the regulation of surrogacy in India as it provided for all the qualifications of the parties competent to enter a surrogacy agreement and the conditions and formalities required to fulfil for surrogacy to be carried out in India. After the enactment of this bill, instances like Karan Johar and Tusshar Kapoor cannot be seen again as this bill proposes to prohibit single parents to become parents through surrogacy.

Salient features of Surrogacy bill 2019

  1. Proposal for making commercial surrogacy illegal,
  2. Allows altruistic surrogacy only,
  3. Requires intended parents to be married for five years,
  4. The Intending parents need to have a certificate of their infertility,
  5. Women can be a surrogate mother only once in her lifetime,
  6. The surrogate mother should be a close relative of the intended parents,
  7. The surrogate mother should be married and have a biological child &
  8. Bans single parents, homosexuals and live-in couples from surrogacy.


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