Even Though Commercial Surrogacy is Prohibited in India, There is a Need to Safeguard the Interests of Surrogate Mothers: Supreme Court

Recently, the Supreme Court (SC) of India heard the pleas challenging certain surrogacy laws such as the Surrogacy Regulation Act and the Assisted Reproductive Technology (Regulation) Act, 2021. While hearing such pleas, the SC bench of Justice BV Nagarathna and Justice N Kotiswar Singh highlighted that even though commercial surrogacy is prohibited in India, there is a need to safeguard the interests of the surrogate mothers. It observed, there is a need for a ‘system’ so that no woman is exploited. During the proceedings, Justice Nagarathna said, “There can be a database, so that the same lady is not exploited. A system must be there. Nobody is saying it's a bad idea, but at the same time, it can be badly used.” The bench also opined on the aspect of compensation and said that the Court will consider a designated authority for disbursing funds to surrogate mothers rather than the intending couple paying them directly. It said, “You don't have to pay directly to the lady, the Department pays. You will have to deposit". In this case, the lead petition was filed by an infertility specialist from Chennai, Dr. Arun Muthuvel. The petition states, “The impugned acts through their discriminatory, exclusionary, and arbitrary nature, deny agency and autonomy in the discourse on reproductive justice and provide a state-sanctioned notion of the ideal family that restricts reproductive rights.”

During the SC proceedings, Additional Solicitor General Aishwarya Bhati, who appeared for the Union, informed the top court that currently the laws bar commercial surrogacy and only altruistic surrogacy is allowed. She sought for some time to present certain instructions for the same and said, “If there are any suggestions, we are willing to take. This is an Act which has specifically come and banning of commercial surrogacy was one of the prime objectives we wanted to have. Otherwise, the prism with which the experts have looked at it is the welfare of the child. It's not the rights of intending couples or individuals. It is the rights of the child ultimately who is brought into the world.” Further, Senior Advocate Nakul Dewan, who appeared for the petitioner, contended that some sort of compensation is required to be provided to the surrogate mothers (a woman can only be a surrogate mother once) as the Rules and Acts only cover insurance and medical expenses. The counsel added, “Instead of having things which go underground, if a mechanism is set out, then certainly I think we can regulate it better. Perhaps in cases where [people] are unable to find a surrogate, they may be able to find a surrogate…” After hearing the contentions, the SC bench asked the parties to file their submissions and listed the matter for hearing on November 05, 2024.