[This article was authored by Shefali Kolhe & Anuj Kumar Gupta, students at Hidayatullah National Law University, Raipur. It attempts to justify commercial surrogacy in light of the changing interpretation of the fundamental rights under the Indian Constitution.]

Abstract

Morality is a term which has no definite meaning. It is as fluid as liquid. It will be in one shape at one point of time and in another shape at another point of time. Thus, it changes from time to time. This paper expresses views against the newly proposed Surrogacy (Regulation) Bill, 2019. The exponents who support ban on commercial surrogacy equate it with baby selling. But a major question that arises here is whether undergoing pregnancy for some other couple can be termed baby selling or in reality, is it only a case of advancing gestational services and earning a reward as a result of rendering services as is the case of any other employment? Is it not high time to give legal recognition to this invaluable service and consider it at par with other forms of employment? The Bill, through its numerous provisions, violates various fundamental rights of the parties involved in the process of commercial surrogacy. Some of the most important fundamental rights which have been violated are Articles 14, 19 and 21 of the Indian Constitution. There are countries where commercial surrogacy is legal and well regulated. Certain internal conventions also support this view. India is witnessing an upsurge to grant legal recognition to the commercial aspect of surrogacy. In such a situation, a change in the interpretation of the guaranteed rights is required. There has been an shift in the last few years where judiciary has come forward to protect the rights of individual keeping in mind the present socio-economic scenario of the society. There is again a need to change the concept of commercial surrogacy from one of baby selling to that of a form of dignified employment. Here, the researchers in this paper have tried to justify commercial surrogacy in light of the changing interpretation of the most basic fundamental rights under the Indian Constitution.