Beyond Paternalism: Drafting a Surrogacy Law for the 21st Century

Abstract

Surrogacy is an oft-debated issue in India with multiple layers and dimensions. The Surrogacy (Regulation) Bill, 2016, which was passed in the Lok Sabha in December 2018, was projected to be the much-needed legal reform and regulation in the area. But the Bill, which is now being debated before the Rajya Sabha, is being criticized by stakeholders and experts alike for attempting to control the sexuality, morality, and the reproductive rights of individuals. While the Bill sought to boost adoptions in India, the author argues that the same must not be achieved by interfering in the reproductive choices of individuals, in particular, that of women.

To this end, the paper would make a study of the history of the surrogacy debate in India and surrogacy laws around the world. It would also make a detailed analysis of the proposed Surrogacy (Regulation) Bill and throw light on the constitutional pitfalls of the provisions. Specifically, the study would focus on the undesired effects the Bill, if made into an Act would have on various groups like women, homosexuals, etc.

The author would draw parallels with the Medical Termination of Pregnancy Act, 1971 which was passed in India even before the landmark judgment of Roe v. Wade was passed by the US Supreme Court. The MTP Act was progressive for its time and age, and protected the reproductive rights of women without succumbing to religious dogmas and patriarchal clutches. The author would argue that the law governing surrogacy in India should be similar to the MTP Act, and must be free from paternalism. The Act concern itself purely with preventing exploitation, and simplifying the procedural aspects, while fiercely respecting, protecting and promoting the reproductive choices of all concerned.

Keywords: Paternalism, Reproductive Choices, Surrogacy