THE CONSTRUCT OF AN INDIAN SURROGATE QUALIFYING FOR VULNERABILITY

Abstract

Surrogacy is a practice in which a woman decides to act as a gestational mother for the offspring of another person. Surrogacy may be traditional, i.e., the gestational mother (the surrogate) is also the genetic mother of the offspring she carries, or it may be genetic, i.e., the intending mother or a donor provides the ovum for the procedure. Surrogacy is a widespread practice in India and a complex phenomenon and poses great many legal, ethical and political questions that are as yet unanswered. In 2015, the Government of India made a radical shift in its stance on surrogacy, claiming that commercial surrogacy would no longer be legally permitted in the country. Surrogacy was to be, henceforth, only altruistic. This stance on surrogacy was diametrically opposite to the Indian Supreme Court’s stance in 2008-2009 when during the case of Baby Manji Yamada v. Union of India,4 it legally recognized and in effect legitimized the commerce of the surrogacy industry in India. This legitimacy in effect led to surrogacy becoming a multi-million dollar industry.5 While the industry burgeoned and India came to be known as the cradle of the world6 , ground research revealed that all concerned parties - identifiably surrogate mothers, commissioning parents and surrogate babies - were being potentially short-changed in the unregulated surrogacy industry.7 Concerns were raised that surrogate mothers were being made to sell their motherhood - exploited under the control of a handful of medical experts.8 The shift of the Government in 2015 towards a ban was ostensibly to end the exploitation of surrogate mothers.