The case discusses the Surrogacy (Regulation) Bill 2016 of India passed by the Union Cabinet in August 2016. The bill had several provisions which aimed at putting an end to the perceived exploitation of women belonging to the poorer sections in the country who had been forced to become surrogates. Another main objective of the proposed law was to protect the rights of surrogate mothers and the children born out of surrogacy. The Surrogacy Bill allowed only married heterosexual couples to have a child through surrogacy while restricting the number of surrogate children they could have to one. It barred singles, homosexual couples, widows, NRIs from opting for surrogacy. Though the bill intended to safeguard poor women, it did not touch on many important issues which required immediate attention from the Government of India. Analysts, doctors, and industry experts from across the country believed that the Indian surrogacy industry was booming and needed regulation; however, by banning commercial surrogacy, the bill took away a major source of livelihood of many women while dashing the last hopes of many infertile couples in India and abroad to have children.

The case further discusses the views of various analysts who found that many provisions of the Surrogacy Bill contradicted the Indian constitution; it denied people’s fundamental right to equality, right to livelihood, and right to choose the means of reproduction. The proposed law was criticized for treating NRIs differently from citizens living in India and for barring homosexual couples from going in for surrogacy. Moreover, given the poor implementation of many Indian laws, experts were skeptical about the successful implementation and monitoring of the bill once converted into law. Though the government announced that it was open to suggestions on improving the bill, it was yet to be seen how it would revise the bill to create a regulated surrogacy industry in India.

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Issues

The case is structured to achieve the following teaching objectives:

	Critically analyze how India evolved into a major surrogacy hub and most preferred destination for foreign surrogacy requirements and fertility tourism.
	Appreciate the dimensions involved in a woman making the decision to rent her womb.
	Debate the limits of public policy — does it extend to restricting the choice of women on what do with their wombs?.
	Evaluate the implications of passing a law that would intrude on the freedom of women making a decision on renting their womb to a needy parent..
	Evaluate the economic impact of a restriction on surrogacy in the country.
	Compare the laws on surrogacy in different countries and evolve the right course for India given the relevant factors.

Contents

INTRODUCTION

INDIA – A MAJOR SURROGACY HUB

THE SURROGACY (REGULATION) BILL, 2016

IMPLICATIONS OF THE BILL

THE FLIPSIDE

NEED OF THE HOUR: A LAW OR REGULATION?

WAY FORWARD

EXHIBITS

Keywords

Surrogacy Bill 2016, Indian Surrogacy Industry, Commercial Surrogacy, Altruistic Surrogacy, Government of India, Infertile Couples, Surrogate, SushmaSwaraj, Surrogacy Clinics, In Vitro Fertilization, Indian Constitution

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