1Assistant Professor of Law, Indian Institute of Legal Studies.
Online Published on 31 August, 2022.
The lack of uniformity in surrogacy laws at the global level reflects the intermingling of laws and morality. This lack of uniformity poses a challenge to the private international law regime to determine aspects like parentage, nationality etc. While some nations allow all forms of surrogacy - both altruistic and commercial, others only allow the former and there is another category where surrogacy is unregulated - these often become the attraction centers for trans-border surrogacy. At present, India has banned trans-border commercial surrogacy and now proposes to ban commercial surrogacy as a whole, thereby permitting only altruistic surrogacy. However, this wasn’t the scenario prior to 2015. The absence of a strict law to regulate surrogacy remains more or less the same in pre and post 2015. The Surrogacy (Regulation) Bill, 2019 is yet to become an Act of the Parliament. The paper shall delve into the legal intricacies of trans-border surrogacy in the absence of surrogacy law in India and addresses the key issues in the Surrogacy (Regulation) Bill, 2019. The paper is an attempt to answer why India - once the “hub of surrogacy”, is now fighting against it?
The paper comprises four parts. Part one of the paper titled “Introduction”, serves as an introductory part and comprises the research problem and the methodology adopted in the study. Part two of the paper titled “Fundamentals of Surrogacy” deals with the terminologies and concepts related to surrogacy. Part three of the paper titled “Trans-border Surrogacy in India - A Legal Conundrum” deals with the legal status of surrogacy in India, the contribution of the Indian judiciary in the field of surrogacy and critical review of the Surrogacy (Regulation) Bill, 2019. Part four of the paper titled “Conclusion” comprises the findings of the study, suggestions and the way forward.
