Rdhima Purwar, Symbiosis Noida
Apoorva Singhal, Ramaiah Institute, Bengaluru
J S Kaushalya, TNNLU
EDITOR: Varshita Girish, CAIL Bengaluru
Surrogacy refers to a contract where a woman carries a child for another couple. It means it is a legal agreement, where a surrogate agrees to bear a child for another person or persons, who will become the child of the parent. The process of surrogacy was not a new process it was exiting from the biblical times, where the first mention of surrogacy can be found in “The Book of Genesis” in the story of Sarah and Abraham.
There are two types of surrogacy: Commercial surrogacy refers to an arrangement of surrogacy where a surrogate gets compensation or monetary relief other than the medical expenses and Altruistic Surrogacy is for the sole reason of love, care and affection and does not demand any monetary compensation in return.
The current status of surrogacy in India prohibits commercial surrogacy but allows altruistic surrogacy. Intended couples can only hire their close relatives as the surrogate mother, however, the surrogacy (regulation) Bill, 2016 does not define the word, close relatives.
In India only Indian hetero couples are allowed to have a child through surrogacy, a couple of homosexuality or belonging to other country or a single parent is not allowed to have a child through the method of surrogacy. Any child born through surrogacy is treated as the biological child of intended parents and shall enjoy all the right as a biological child.
VALIDITY OF SURROGACY BILL IN INDIA:
The Surrogacy (Regulation) bill, 2019 was approved by the Lok Sabha, the bill prohibits commercial surrogacy but allows altruistic surrogacy. The altruistic surrogacy does not involve monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. The surrogacy is permitted when it is for intending couples who suffer from the proven infertility and not for commercial purposes. It includes contracting with close relatives as a surrogate by a heterosexual married couple who have been childless for five years since their marriage. In keeping with the insistence gestational surrogacy, which makes the use of IVF and other assisted reproductive technologies mandatory, the current Bill is faithful to the Indian Council of Medical Research’s Draft Assisted Reproductive Technology (Regulation) Bill, 2010. The latter has governed the practice of surrogacy till the surrogacy bill 2016 banning commercial surrogacy comes into effect.
In India, Altruistic surrogacy is very different from its opposite commercial variant. It is just like organ donation, wherein ‘strangers’ were dressed up as ‘near relatives’ in altruistic surrogacy too, similar negotiations may be entered into. In a patriarchal society, women are always at the receiving end of ostracism and exploitation. In facilitating this among kin, the government has to be very of the kind of exploitation which is fostering. With very regressive approval for couples with differently-abled children to opt for surrogacy, the bill does seek certain important changes. The IVF and other assisted reproductive technologies stems from a problematic conceptualization of infertility itself, pushing couples to opt for invasive intervention within a year of unprotected coitus.
Article 14: Equality before the law
Chapter III, Section 4(iii)(b)(I) of the Bill states that a woman can be a surrogate or help in surrogating only if she belongs to the age gap of 25-35, has been married at least once in life and already has a child. This discriminates against unwed and childless women who may want to go in for surrogacy. There is no just rationale behind including this clause. It should be the choice of any physically and mentally fit woman to go in for surrogacy.
Chapter III, Section 4(iii)(c) of the Bill lays down the eligibility for the intending couple, which is that the female should be between 23-50 years, and the male is between 26-55. When the legal age to marry for a female is 18, similarly 21 for male, why is it that a couple can become parents through surrogacy only after five years of marriage. This does not give a chance to couples who want to have children early on in life.
First of all, it spreads the patriarchal thought of heterosexual parenthood and discriminates against the LGBTQ community. Even after the decriminalization of Section 377 of the IPC, this clause discriminates against persons belonging to this community who want to be parents, further increasing homophobia in our society.
Secondly, it discriminates against non-married people who want to be parents, namely widows, divorcees, and other single parents. This also discriminates against live-in relationships as the prerequisite for surrogacy is a five-year marriage. In its recent pronouncements, the judiciary has already declared live-in to be valid and akin to marriage. It has provided relief too in such cases, by inserting this clause, it is giving a chance to the society to stigmatize people who are in a live-in relationship.
Thirdly, this can only be availed by citizens of the country, discriminating against foreign nationals, PIOs, and OCIs who may want to have surrogacy. All these seem unreasonable and arbitrary conditions that are not acceptable.
Therefore, this clause violates Article 14 of the Constitution that ensures equality to all before the law's eyes.
Article 21: Protection of right to life and personal liberty
● Right to Reproduction
The right to reproduction is a right enshrined under Article 21 of the Constitution, which has been upheld by various judicial pronouncements. The right to reproduction involves all the rights of reproductive autonomy ranging from the method of giving birth to the way of the upbringing of children. For instance, Chapter I Sec.2 (r) of the Bill makes infertility of the intending couple a prerequisite for surrogacy, which curtails the person's choice of procreation. It is the right of the parent to choose whichever mode (natural/ surrogate/ adoption) that he/she wants to, the State should not have a say in this. The act of prescribing a method to become a parent and curtailing the reproductive choices of women violates article 21 of the Constitution.
● Right to privacy
In the landmark judgement of Justice K.S.Puttaswamy (Retd) vs. Union of India, the Supreme Court held that reproductive choices of women are her constitutional rights falling under the ambit of personal liberty and no restrictions can be imposed upon her. The bench also reiterated the position adopted by a three-judge bench in Suchita Srivastava v Chandigarh Administration, which held that reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children; and that these rights form part of a woman’s right to privacy, dignity, and bodily integrity.
Article 19(1)(g): Right to Profession and trade
The proposed law is violating Article 19(1)(g) which guarantees the “freedom of trade and profession”. Not being an absolute right, Article 19(6) provides certain grounds on which the said right can be reasonably restricted. One of them include restrictions in the interest of the general public and the Surrogacy (Regulation) Bill, presents itself in the ‘interest of the general public’, but it fails.
But criminalizing the commercial surrogacy completely negates the individual freedoms and fails to strike the mandatory balance required between individual freedom and social control. In-State of Maharashtra v. Indian Hotel and Restaurant Association, the Supreme Court had held that a total ban on bar dancing is unconstitutional as the ban stating that the “cure is worse than the disease” given that contrary to its purpose, resulting in many women being forced into prostitution and violated their right to carry on one’s profession or occupation under Article 19(1)(g) of the Constitution. Similarly, putting a blanket ban on commercial surrogacy in the Bill and legalizing only altruistic surrogacy also goes against Article 19(1)(g) of the Constitution. And it will not achieve the objective of this potential Act, as surrogates carrying a child of intending couples could still be subject to exploitation, the only difference being that she will not be paid for it. Further, any such blanket ban or partial ban will only drive the industry underground.
Surrogacy is the source of income for not only surrogate mothers but also to numerous surrogacy clinics in the country. But the Bill jeopardizes the interest of various stakeholders in this multi-dollar industry by putting a complete ban on commercial surrogacy. As it is also not justified as a reasonable restriction.
In the present Bill, it seeks to achieve the twin goals of preventing the exploitation of poor women and preventing commercialization of surrogacy process with renting a womb. The State must make sure that the surrogate woman is not forced to carry on this business, at the same time it must not disturb other individuals who are within their legal and human rights to avail surrogacy services.
Instead of imposing a complete ban, the commercial surrogacy market should be regulated for the protection of the surrogate mother in the contract. India needs a system that could regulate the surrogacy market by implementing checks and balances, transparency, and registration of surrogacy contracts. This would also eliminate the middleman, ensuring that the entire compensation reaches the surrogate mother.
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