India’s first In-Vitro Fertilization (IVF) baby, and World’s second, Kanupriya, was born in Kolkata on October 3, 1978. The scientific technology behind IVF is known as Assisted Reproductive Technology (ART). Despite India being a hub of surrogacy, there is no legal framework.
There are four types of surrogacy: traditional, gestational, commercial and altruistic. Commercial surrogacy must face many ethical questions. The Supreme Court in Baby Manji Yamada, (2008) 13 SCC 518 did not venture on the legality of commercial surrogacy; Law Commission Report No. 228 in 2009: altruistic surrogacy be legalized, and commercial surrogacy be prohibited; The Parliamentary Standing Committee on Health and Family Welfare’s Report on The Surrogacy (Regulation) Bill, 2016 in 2017: reproductive labour for free is grossly unfair and arbitrary / only altruistic surrogacy is exploitation / private contract model is inadequate / fix quantum of compensation to surrogate mothers.
Regulation of market for commercial surrogacy is necessary; no blanket ban. Two cases before The Supreme Court: Jayashree Wad, Writ Petition (Civil) No. 95 of 2015 and Jan Balaz, Civil Appeal No. 8714 of 2010.
The future awaits.
Jaideep Gupta, Surrogacy: Towards a Legal Structure for India, The Indian Advocate, Vol XLII: Women and The Law, 2018.