[This article is authored by Daksha Khanna and Abeera Dubey, students at the Government Law College, Mumbai. This article attempts to analyze the much awaited Surrogacy (Regulation) Bill, 2019 with an objective legal lens considering the growing demands for autonomy of women and the exclusion of other stakeholders like the LGBT+ community.]
The Surrogacy (Regulation) Bill, 2019 is a much-awaited law which seeks to regularize the multi-million-dollar industry of surrogacy in India, which was, until now, functioning without any concrete legislative framework. The need for this law was felt because of the exploitation of surrogate mothers by unethical practices of middlemen and occasionally by intending couples, and abandonment of children born out of surrogacy. It provides for the setting up of National and State Surrogacy Boards to, inter alia, supervise the functioning of surrogacy clinics and to monitor the implementation of the provisions of the Bill. It also provides financial protection to the surrogate mother in the form of medical expenses and insurance coverage. However, the prohibition of commercial surrogacy and adherence to the altruistic model of surrogacy has raised various constitutional and socio-economic concerns. The option of surrogacy has been limited strictly to infertile Indian married heterosexual couples, which has opened the Bill to castigation on the grounds that it is exclusionary to LGBTQ+, live-in couples, single parents, widow(er), divorcees, OCIs and PIOs. The conditions imposed on the eligibility of the surrogate mother has also drawn the ire of certain stakeholders as being conservative, and placing undue importance on the amorphous concept of ‘public morality’. In the background of emphatic reiteration of the right to privacy and growing demand of the autonomy of women and their freedoms, this article attempts to evaluate the Bill from an objective legal lens. This article begins with scrutinizing the constitutionality of the Bill by applying the Golden Triangle test, then evaluating the issue of Excessive Delegation and overcriminalization, finally moving on to cover other miscellaneous issues.