For Robert Brown, all love begins and ends with motherhood; by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood. It is no longer an indivisible instinct of a mother to bear and bring up a child. With advancement of reproductive science, now, on occasions, the bearer of the seed is a mere vessel, a nursery to sprout, and the sapling is soon transported to some other soil to grow on. Now, it is Law’s turn to appreciate the dichotomy of divine duty, the split motherhood.
– P. Geetha vs The Kerala Livestock Development Board
The new Surrogacy (Regulation) Bill, 2016, passed by the union cabinet raises some serious legal and ethical concerns. Its provisions, not yet in the public domain, prima facie suggest that the Bill, if passed, may not per se be in consonance with the constitution.
The proposed law – mostly in line with similar laws in other countries and the 228th report of the Law Commission of India – provides for a blanket ban on commercial surrogacy and only permits altruistic surrogacy by a close relative, who must have given birth to a child.
This in itself is problematic as it could violate the woman’s fundamental right to livelihood – in this case through surrogacy – as guaranteed under Article 21 of the constitution. Also, the restriction that the surrogate must only be a ‘close relative’ of the commissioning parents may result in ethical issues wherein the child and the surrogate develop an intimate bond, given that both are known, accessible and related to each other. Moreover, if the surrogate wishes for her name to remain undisclosed, how will her privacy be protected when the deal will be happening within the family? Besides, the commissioning couple may face difficulties in finding a close relative who will willingly render the surrogacy service. Prohibiting commercial surrogacy in favour of surrogates from within the family may thereby turn surrogacy into a black market business, or lead to the victimisation and coercion of subjugated and oppressed women in marital homes to bear a child for their relative.
How does the government plan to tackle the issue of violation of a woman’s right to health and bodily integrity that may arise as a result of this provision?
A further provision of the Bill allows surrogacy only to legally-married infertile Indian couples, who have been married for at least five years. This is an archaic provision that is reflective of the patriarchal Indian mindset that a woman, if fertile, should bear a child herself rather than resort to scientific marvels that are otherwise available. This plausibly violates the ‘right to reproductive autonomy’ as laid down in B.K. Parthasarathi vs Government of Andhra Pradesh.
The decision about reproduction is essentially a part of a person’s personal domain and should be left to the couple. Also, the requirement of a five-year wait after marriage to enter into a surrogacy arrangement and the age restriction of the commissioning parents – for the father to be between 26 and 55 years and the mother to be between 23 and 50 – do not set out a robust intelligible differentia and rational nexus with the objects that are sought to be achieved.
Further, the decision to keep single men and women, LGBTs, divorced and judicially separated couples, as well as live-in couples out of the purview of the draft Bill is retrograde.
The National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, 2005 issued by the Indian Council of Medical Research, permits single women to use ART. In addition, the Hindu Adoptions and Maintenance Act and the Juvenile Justice (Care and Protection of Children) Act, 2015 permits conditional adoption for single and divorced persons. There appears to be no element of prudence in allowing single people to adopt while prohibiting them from opting for surrogacy.
Also, by virtue of the fact that being LGBT or being in a live-in relationship is not illegal per se, disallowing the right to choice vis-à-vis surrogacy is a sheer violation of their right to equality guaranteed under Article 14.
Another aspect of the Bill is that to enter into a surrogacy arrangement, it is a prerequisite for the commissioning couple to not have any physically and mentally fit biological or adopted children. This provision appears as an imposition by a police state on the rights of a couple to procreate through the means of their choice.
International surrogacy arrangements
Reproductive tourism has led to a large number of people travelling to India, especially for the purpose of entering into surrogacy arrangements. This at times leads to complexities such as citizenship, custody of the child in case of abandonment by commissioning parents and visa issues.
India first witnessed the issue of a child being left stateless in the case of Baby Manji Yamada vs Union of India. In Jan Balaz vs. Anand Municipality & Ors., the Gujarat high court had to adjudicate upon a case relating to the issue of citizenship of twin children who were born out of surrogacy in India when the commissioning parents’ home state of Germany had refused to grant citizenship to the children.
We have also seen the struggle of Israeli gay couple Yonatan and Omer Gher to take their baby Evyatar, born through surrogacy in India, back due to the legal battles they had to face in their country.
The government’s objective of keeping foreigners and persons of Indian origin outside the realm of surrogacy in India can be justified on a two-fold basis: first, to avoid complexities related to nationality and the like; and second, to prevent Indian women becoming exploitative business tools in the hands of non-citizens.
However, barring NRIs from opting for surrogacy in India appears to be an unreasonable provision as there isn’t any reason to treat them differently from citizens living in India. The reason for this arbitrary differentiation does not prima facie have a rational nexus with the objects sought to be achieved. At a time when NRIs are treated at par with Indians living in the country in terms of priority for adoption as per the Central Adoption Resource Authority, there are serious doubts on whether this provision in the draft Bill will qualify the twin test of reasonableness under Article 14 of the constitution.
The draft surrogacy Bill gives an impression that it has been framed without addressing the actual concerns of the surrogacy arrangements in the country. The proposed legislation may do more harm than good by leading to the exploitation of surrogates through coercion and undue influence or by trafficking them to permissible jurisdictions.
At an age when we have been unable to check the underground practises of sex determination and organ donation, are our law enforcement agencies efficient enough and well-equipped to implement this law effectively? Will we not be accountable for facilitating the creation of ‘surrogacy havens’ outside the country?
The need of the hour is to regulate the unregulated surrogacy market to ensure and protect the rights of surrogates vis-a-vis the rights of the commissioning parents and children born as a result of such arrangements. The government should rethink the proposed law on surrogacy to safeguard the constitutional rights of the stakeholders considering the social, legal and ethical dynamics of this sensitive subject for the formation of a progressive regulatory framework.
Chithra P. George is a lawyer based in Kerala.