Ban on Commercial Surrogacy

According to research conducted by the World Health Organization, 48.5 million couples worldwide are unable to have a child after five years, and one in every four couples in developing countries have been found to be affected by infertility. India itself has witnessed a declining fertility rate of around 2.2 (births per woman), and couples have increasingly opted for surrogacy as an alternative reproductive choice in the last decade. Commercial surrogacy or informally the “rent a womb” practice was legalised in India in 2002. This led to an increase in medical tourism and India becoming the “hub of surrogacy.” This was largely due to the lower costs and absence of strict legislation and regulation.

Although it is a means of livelihood for women, especially from underprivileged backgrounds, it can lead to graver problems. These include, but are not limited to, commercialisation, unethical practices, exploitation, abandonment of children, and import of human embryos and gametes. The legislations have evolved from the permissive guidelines of the Indian Council for Medical Research in 2005 to increasingly restrictive bills, and through notifications of the Ministry of Home Affairs, which sought to exclude prospective parents based on marital status, sexual orientation and citizenship. In line with the 228th report of Law Commission, which proposed the need to enact a law to regulate commercial surrogacy, the Surrogacy (Regulation) Bill, 2016 came into place. It lapsed and was reintroduced in 2019.