On February 26, 2020, the Union Cabinet adopted the new Surrogacy (Regulation) Bill 2020, which allows any ‘willing’ woman to be a surrogate. Due to the COVID-19 epidemic, the bill was put on hold, but it is anticipated to be presented as the 2021 Bill in the Indian Parliament’s Lower House very soon. Despite being a considerable improvement over the Surrogacy (Regulation) Bill 2019, the Bill continues to take a needs-based rather than rights-based approach, denying women the autonomy they deserve. Surrogacy’s main point of contention is the competing interests of its many partners. On the one hand, it is the state’s responsibility to safeguard the interests of the unborn child and to prevent surrogate exploitation. The freedom of women to make their own reproductive decisions and the right of individuals to parenting, on the other hand, are both protected.
India’s surrogacy legislation has failed to strike a balance between these competing interests.
Commercial surrogacy became allowed in India in 2002, and the country quickly became a centre for transnational surrogacy because of a lack of laws, low costs of fertility clinics, and a vast supply of underprivileged women ready to perform this service.
Surrogate mothers, on the other hand, have been vulnerable to exploitation, bad living circumstances, and unethical treatment. The ethical side of commercial surrogacy was first brought to public attention after the highly publicised case of Baby Manji Yamada v. Union of India.
SURROGACY BILL IN INDIA
The Lok Sabha introduced and approved the Surrogacy (Regulation) Bill, 2016. The Rajya Sabha, on the other hand, did not pass the bill and instead requested that its contents be examined by a Parliamentary Standing Committee. The 102nd Report, released in 2017, was the result of this process, and it recommended gradual modifications to the 2016 Bill.Despite this, the 2019 Bill rejected the Parliamentary Committee’s recommendations and was a carbon copy of the 2016 Bill. It outlawed commercial surrogacy and allowed only altruistic surrogacy, thereby barring surrogates from receiving monetary remuneration for their services.This limitation deprives women of their reproductive autonomy and promotes conventional social views that women’s labour in the home domain is of little economic significance. The Bill was once again rejected by the Rajya Sabha, prompting the formation of a Select Committee to suggest modifications to the Act.
LGBTQ+ people, live-in couples, and single parents continue to be denied this chance under the proposed Bill. Even those who fall under its purview are required to acquire a “certificate of essentiality” declaring that having a child in any other method is biologically impossible.It ignores other medical problems that, although not rendering women infertile, make childbearing more dangerous and difficult.
It also ignores situations where women may be unable to carry a child owing to professional obligations. Consider the situation of a female athlete whose career span coincides with her child-bearing years.
Baby Manji Yamada Vs Union of India, 2009
Baby Manji Yamada was born to an Indian surrogate mother for a Japanese couple who divorced within a month of the child’s birth, leaving the child’s future uncertain. Ikufumi Yamada, the child’s biological father, wanted to bring him back to Japan, but the legal framework did not allow him to do so, nor did the Japanese government allow him to do so. The girl was eventually permitted to leave the country with her grandmother when the Supreme Court of India intervened.The Baby Manji Yamada judgement had the greatest influence in that it prompted India’s government to pass a legislation regulating surrogacy. Following Manjiae’s case, the Supreme Court of India declared surrogacy legal in India in 2008. This enhanced worldwide trust in surrogacy in India.