Commercial Surrogacy, the process in which a woman is paid to carry a baby, has catapulted into a multi-million dollar industry in India, with the country earning itself the moniker of being the “rent a womb” capital of the world. This form of surrogacy has attracted fervent opposition worldwide for ethical, legal and moral reasons with the Indian government recently proclaiming to the Supreme Court its intention to shut the industry.

India is one among the favoured destinations for commercial surrogacy because of good medical technology, low cost, lack of regulations and a large pool of women willing to become surrogates. The case of Baby Manji v Union of India, where a surrogate child was tangled in a web of legal issues pertaining to her custody, brought to light the absence of regulation within the existing surrogacy industry in India. Since Surrogacy agreements preceding this case were guided by the Indian Contract Act and the non-binding guidelines promulgated by the Medical industry, the Supreme Court ordered the government to draft a new legislation regulating the industry. However, the Union Cabinet in a surprise move in February 2020, suggested the banning of commercial surrogacy in India, while allowing only for “altruistic surrogacy”. It is instructive to note that the 2020 Bill is essentially a rehash of the Surrogacy Regulation Bill of 2016 which lapsed in the Rajya Sabha. This potential Act can cause severe repercussions because the nature of the ban is an affront to individual liberty and banning can lead to activities being done clandestinely, where the probability of being exploited is higher.

Surrogacy is no doubt controversial, with its critics using a host of moral, ethical and legal issues to critique it.  However, most reasons cited, don’t have any evidential backingand in many occasions, is washed out rhetoric. Surrogacy is a social issue which requires us to establish safeguards against its abuses and resolve questions of who has what rights in a surrogacy agreement, rather than treating it as a practice that raises profound moral considerations that forever resist solutions.

Some charge that surrogacy is a form of slavery where women from the lower economic strata are “forced” to bear and surrender infants, hence the practice is inherently exploitative. It’s imperative to note that most women “choose” to rent their wombs. It’s a matter of a woman’s autonomy and reproductive choice. Most women see surrogacy as a good opportunity to make money to meet financial goals. The State’s claim that it knows what’s best for women is paternalistic. It’s questioning the woman’s ability to judge their interests and enter into contractual arrangements knowingly and competently. The State by dictating to a woman what they can and cannot do, is contravening the woman’s sovereign right over her body. The State needs to distinguish the realm of public and private and interfere only when women are “compelled” to use their bodies. Donna Dickenson, in her searing work titled “Property in the Body ” emphatically states that a woman’s body is not an object, but belongs to oneself. She further writes that there is no property in the physical body, however there is property in our person. Essentially, every individual has a property in their own person, which nobody has the right to, except themselves. Dickenson’s work is path-breaking, given how it routinely reiterates that women possess a property right in their reproductive labour. Drawing inspiration from her incisive logic, it is clear that a woman who undergoes the process of surrogacy on her own volition cannot tantamount to “commodification” or “renting a womb”. She is voluntarily using her property in person in order to receive remuneration of her own labour. The body is not being subjected to commodification while undergoing the process of surrogacy, rather the self is being employed at the will of the individual herself.

The contract of surrogacy, which is a voluntary contract between human beings for an exchange of money, can sometimes be exploited and the consent of parties can be taken involuntarily under guise. While this argument should be given due weightage, the onus in such cases is on the lawmakers to draft proper clauses in the law in order to override contractual problems and make it compulsory for clinics to inform the surrogate mother of all necessary details. In this segment, the paper would discuss one possible arena which could strengthen a contract between willing parties for surrogacy. The Indian Contract Act, states that “consideration” forms the fulcrum of a valid contract. It finds itself situated under S.2(d) of the ICA, 1872 and is defined as the Act undertaken by the promisor or any other person to do or abstain from doing at the desire of the promisor. A contract which is bereft of consideration is deemed “void” in the eyes of law. While dealing with instances of surrogacy, “remuneration” bestowed upon the surrogate mother by the intending couple can tantamount to consideration. The Surrogacy Board can be charged with the responsibility of determining whether the contract between the parties is fair and equitable in nature. This would serve as a potential way to ensure that the surrogate mother is awarded with fair remuneration.

Many have cited psychological and physical reasons for its potential ban. Women, it is widely believed, will regret their choices and wouldn’t want to give up the child after their birth. Parallels have been drawn to cases of adoption where birth parents have sometimes refused to give up their children after entering into an agreement. This argument is flawed, because in surrogacy, unlike adoption, it is known right from the start that it is a contract. The problem of psychological problems occurring might have ground, but allowing the government to decide whether or not this will occur is preposterous. The objections raised have been alleviated to a large extent by the new ART bill which specifically maintains that women are allowed to be surrogate mothers only after having children of their own and has also provided for compulsory psychological screening or legal counselling, which is mandatory in the USA, to be taken by mothers before surrogacy. The health problem caused by implanting multiple embryos in surrogate mothers to ensure higher rate of success, has also been addressed in the new Bill, where it has unequivocally been stated that multiple embryos cannot be implanted in a woman’s body.

The government by banning surrogacy will only drive the practice underground. The surrogacy industry is deeply entrenched in India for it to simply melt away in the face of a “ban”. It will continue to operate under cover – perhaps in the guise of “altruistic surrogacy”. A ban will bring forth a completely unregulated black market in surrogacy that will fleece clients and surrogates alike and will lead to a higher exploitation of women with them being stigmatised rather than being helped. The surrogates will end up having fewer rights and protections. The State cannot ensure that no undisclosed financial transactions will take place between a childless couple and a surrogate mother by allowing only altruistic surrogacy.

Therefore, the government rather than an outright ban should regulate the areas that allow exploitation and perpetuate unhealthy medical practices. The already enlightened ART bill should be revamped with better regulatory features and stricter rules to formalise and streamline the industry. The proposition of banning as mentioned above is counterproductive and hence a framework of laws to regulate the industry makes it a win-win situation for all.

Sravishtha Reddy is a second year student at Jindal Global Law School. She is interested in the fields of Human Rights and Marxism.