“Necessitas non habet legem” Necessity knows no law, and hence, the inability to procreate and propagate one’s species has driven people the world over to explore the world of assisted reproductive technology; particularly, surrogacy. Every essential process in the world with the scope for human interference begs us to question the ethical, social and practical aspect of it all. Surrogacy, a practice which actually has so many benefits, is a topic that is under intense debate today, due to the simple fact that the room for exploitation and manipulation of parties involved in surrogacy is too much to leave to chance. Commercial Surrogacy, was recently banned in India, sparking a fire of protest and debate throughout the country. Although the Surrogacy (Regulations) Bill, 2016, was passed two years ago, it remains a subject of unresolved debate.

The authors of this paper, in the entirety of the paper, address the issues surrounding the practice as well as point out that the demerits of a complete blanket ban on surrogacy are a whole lot worse than the demerits in the alternate scenario. The authors believe that the argument essentially boils down to the contravention of Article 23 and 24 of the Indian Constitution, in comparison to the contravention of Article 14 and 19; the best among the worst case scenarios.

The authors believe that rather than imposing a blanket ban which seems draconian in itself, the government should seek to amend the Surrogacy (Regulations) Bill, 2016 to ensure that a strict legal framework is in place and all surrogacy matters are dealt with by competent individuals to ensure minimalistic, to no violations of Article 23 and 24, the right against exploitation.

In conclusion, the authors believe that policies made with the fear of human intervention in mind are often in vain, and thus a stand should be taken with respect the issue of surrogacy.

 Download Full Paper