Surrogacy debate in India

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Indian government’s plan to ban surrogate services for foreigners wanting babies is likely to severely hit the booming industry with $400 million a year, with over 3,000 fertility clinics across India. On 28th October 2015 government said that it does not support commercial surrogacy and proposed a new law that will restrict the services to Indian couples only.

Childless foreign couples have flocked to the country in recent years which has resulted in the mushrooming of IVF clinics across India. Absence of a regulatory framework and the availability of poor women willing to rent out their wombs at very reasonable costs have made India a hub for surrogate activities. The Supreme Court in the 2008 Manji case held that commercial surrogacy was permissible in India. The Supreme Court in the 2008 Manji case held that commercial surrogacy was permissible in India. Baby Manji was born to a surrogate mother in Gujrat to Japanese parents (through an unknown egg donor and the husband’s sperm) . The parents divorced before the baby was born. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognise surrogacy. The baby was ultimately granted a visa, but the case underscored the need for a regulatory framework for surrogacy in India. This was the start of the Assisted Reproductive Techniques (Regulation) Bill, 2014

The Indian government condemns commercial surrogacy that involves exchange of money for anything apart from paying for the medical expenses for the mother and child. The government in an affidavit to the supreme court on 28th October 2015 said it would henceforth “prohibit and penalise commercial surrogacy services” which will protect the “dignity of Indian womanhood”, and to prevent “trafficking in human beings” and the “sale of surrogate child”. Only needy infertile Indian couples would be able to opt for surrogacy of the altruistic kind which involves only medical expenses for the mother and child and in most cases involve a close blood relative.

 “Commercial surrogacy should not be allowed but it is going on in the country. You are allowing trading of human embryo. It is becoming a business and has evolved into surrogacy tourism,” the bench (The Indian Express, October 15, 2015)

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Post Contributed By:

Tanushree Sharma Giri

Indian Institute of Legal Studies

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