Understanding Commercial Surrogacy: The Pact Between Barren and Broke

Sasthibrata Panda and Sanskar Jain

Commercial surrogacy is, an agreement between intended couples and a surrogate mother, which is currently legal in India. The objective of the paper is to support the practice of commercial surrogacy and criticizes the draconian provisions of the Surrogacy (Regulation) Bill, 2019, which intends to prohibit commercial surrogacy. It argues that because commercial surrogacy paves the way to give a genetically related child to the infertile couples in return for consideration to the poor surrogate mother for her service. The paper resolves the conflict of parenthood and talks about the certainty of parenthood with the help of surrogacy contract within the purview of intention based and genetic relation based arguments. It contextualizes a commercial surrogacy agreement is neither unconscionable nor a baby-selling agreement. Next, it brings up the constitutional issues revolving around the Bill. It gives an insight into how the Bill violates the golden triangle of the Indian Constitution. It constantly emphasizes the importance of a robust form of mechanism to regulate this industry. It highlights flaws in the Bill and suggests how to tackle these flaws by giving appropriate solutions. Finally, it concludes by stating that commercial surrogacy should remain legal, but under the control of the government.

Cite as : Panda S and Jain S, “Understanding Commercial Surrogacy: The Pact Between Barren and Broke” (2021) I Dharmashastra National Law University Student Law Journal 18 <https://dnluslj.in/understanding-commercial-surrogacy-the-pact-between-barren-and-broke>.

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