Surrogacy is not a new concept inIndian society. Instances can be traced to the mythological surrogate mothers such as Yashoda and Gandhari 1. The prehistoric urge to have a biological child of one’s own DNA with help of the advanced technology coupled with the commercial aspect provided by the ART clinics and allied services have resulted in the 5000-million-dollar reproductive tourism industry in India. 2
The Black’s Law Dictionary defines surrogacy as “the process of carrying and delivering a child for another person’s” 3. In the simplest terms, it is an act of having a child with the aid of another individual, with the help of advanced medical facilities. In the case of Baby Manji Yamada v. Union of India 4, the court has described the various forms of surrogacy, which include traditional surrogacy, gestational surrogacy, altruistic surrogacy, and commercial surrogacy. The advancement of IVF technology and the growth of IVF clinics across India have made it a spot for reproductive tourism 5. India has often been termed as the “surrogacy Capital of the world” 6, and the surrogacy business, estimated at 400 million dollars a year, witnessed the emergence of over 3000 fertility clinics all over India. 7
However, the industry of Commercial surrogacyhas been largely unregulated and perceived to be the root cause of all evil that plagues surrogacy in India. Therefore, the Bill of 2020 highlights that the legislation aims to curb the unethical practices of commercial surrogacy including the exploitation of surrogate mothers. In this way, the Bill of 2020 makes a departure from the Bills of 2008 and 2014 which permitted commercial surrogacy.
The paper is divided into 4 parts. Part I deals with the background of surrogacy in India, and will explore the provisions of the Bill in detail. Part II givesa detailed analysis of the constitutional validity of the Bill in the light of Article 14, Article 21, and Article 19(1)(g) of the Constitution. Part III deals with loopholes and suggestions that would emerge due to the amendment. Lastly, Part IV provides the conclusion of the article.
The roots of surrogacy can be traced long back in India. The world’s second and India’s first IVF (In Vitro Fertilization) baby Kanupriya alias Durga was born Kolkata on October 3, 1978 8. Since then the field of assisted reproductive technology (or ART) has shown some fastest developments.
In 1986, surrogacy encountered its first legal hurdle in the Baby M case 9, when upon giving birth to the child, a traditional surrogate decided that she wanted to keep the child. After two yearlong legal eventually resulted in the intended parents retaining custody. This landmark case raises many legal questions on the practice of surrogacy. But legally the laws related to surrogacy are in the nascent stage.
India legalized commercial surrogacy in 2002. This legislation assisted the emergence of an industry that attracted international attention to India’s reproductive market. India has proved itself to be one of the most famous surrogacy destinations preferred internationally. This paved a way for the women exploitation, abandonment of children born out of surrogacy and unethical practices. The financially weaker and cheap reproductive labour made low-income Indian women the perfect sellers of their reproductive capabilities. To curb exploitative practices against ‘mother-workers’ (a term coined by sociologist Amrita Pande 10), the Indian Council for Medical Research laid down ethical guidelines in 2005 which emphasized on contractual agreements between commissioning parents , fertility clinics, and the surrogate mother, as well as the notions of consent, privacy, and support. 11 In 2012, the Union Home Ministry proposed an amendment to 2002 law, to ban foreign nationals, especially same-sex couples and single parents in India.
The 228th report of Law Commission of India has recommended for prohibiting commercial surrogacy and allowing altruistic surrogacy citing concerns over the prevalent use of surrogacy by foreigners and lack of proper legal framework resulting in exploitation of the surrogate mother who may be coerced to become a surrogate due to poverty and legal education.
In 2016, Surrogacy (Regulation) Bill, 2016 proposed in the parliament. The Bill provisioned the establishment of national and state-level surrogacy boards. Further, only heterosexual Indian couples, legally married for five years, could avail surrogacy, with precondition of proven fertility certified by the recognized medical practitioner. But the bill lapses in the Lok Sabha due to some flaw in the laws. Then, Surrogacy (Regulation) Bill, 2019 reintroduced and passed by the Lok Sabha which was referred tothe Select Committee of Rajya Sabha.The latest Bill is incorporated with all the recommendations of the Selection Committee and the Union Cabinet has approved it as the Surrogacy (Regulation) Bill, 2020. The Bill, however, comes with a blanket ban on commercial surrogacy and limiting altruistic surrogacy. It bans on the overseas, foreigners, unmarried couples, single parents, live-in partners, and gay couples from commissioning surrogacy. The proposed is not legally unsound but also highly divorced from the Indian social reality 12.
Chapter I(Section 2) 13 providesthe various definitions used in the Bill such as “Altruistic Surrogacy (no charge or fees or expenses)”, “commercial surrogacy (surrogacy by way of giving payment, reward, benefit, fees)”. It also defines “intending woman” as an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy.
CHAPTER II (Section 3) 14 deals with “Parentage and abortion of surrogate child” in which a child born by surrogacy procedure will be deemed to be the biological child of the intending couple or intending woman. For the abortion of the surrogate child, it requires the written consent of the surrogate mother and the authorization of the appropriate authority. This authorization must be according to the Medical Termination of Pregnancy Act, 1971 15. Further, before the embryo is implanted in her womb, the surrogate mother will have an option to withdraw from surrogacy.
CHAPTER III (Section 4-10) 16 This chapter divide in 4 parts-:
First part deal with the five purposes for which surrogacy is permitted such as (i) when an intending couple or intending women of India has a medical indication for gestational surrogacy (means a practice whereby a surrogate mother carries a child for the intending couple through implantation of an embryo in her womb and the child is not genetically related to the surrogate mother) (ii) altruistic (iii) for any condition or disease specified through regulations, and (iv)that surrogacy is not for commercial purposes, producing children for sale, prostitution or other forms of exploitation.
The Second Part deals with Eligibility criteria for intending coupleswhich include ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
• A certificate of essentiality shall be issued when the following conditionsare fulfilled:
1. a certificate of a medical indication in favor of either or both members of the intending couple or intending woman for gestational surrogacy from a District Medical Board.
2. An order of parentage and custody of the surrogate child passed by a Magistrate’s court
3. Insurance coverage for a period of 36 monthsfrom 16 months provided in the earlier version which covers postpartum delivery complications for the surrogate.
• The certificate of eligibility for the intending couple shall be issued upon fulfilment of the following conditions:
1. the couple being Indian citizens
2. between the ages of 23 to 50 years old (wife) and 26 to 55 years old (husband)
3. they do not have any child biologically, adopted or through surrogacy and it would not include a child who is mentally or physically challenged or suffers from life-threatening disorder or fatal illness
4. other conditions that may be specified by regulations.
• The third part deals with the Eligibility criteria for surrogate mother and to obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
1. a married and willing woman(In 2019 bill only a close relative of a couple can be a surrogate mother which restricts the availability of surrogate mothers) between the age of 25 to 35 years having a child of her own
2. surrogate only once in her lifetime
3. possess a certificate of medical and psychological fitness for surrogacy.
4. the surrogate mother cannot provide her own gametes for surrogacy.
The fourth part deals with the “Rights of surrogate child” in which the child will be entitled to all the rights and privileges available to a natural child under any law for time being in force.
CHAPTER IV (Section 11-14) 17 deals with “Registration of surrogacy clinics” by the appropriate authority in order to undertake surrogacy or its related procedures within a period of 60 days from the date of appointment of the appropriate authority. “Registration of certificates” which are valid only for three years and will be renewed. “Cancellation or suspension of registration” by the appropriate authority if there is any infringement of the provisions of the Act. And “Appeals” against orders such as rejection or cancellation of certificates, registrations, and applications passed by the appropriate authority to the State and Central Government.
CHAPTER V (Section 15-32) 18 deal with National and State Surrogacy Board which consists of various members from Parliament, State Legislative Assemblies, Executives, and ten experts’ members appointed by the Central and State Government. The function of Boards is to advise the Central Government on policy formulation relating to surrogacy, monitor and review the implementation of the Act or rules and regulations, laying down the code of conduct of surrogacy clinics, supervise the functioning of State Surrogacy Board and performance of various bodies constituted under the Act.
Chapter VI (Section 33-35) 19 deals with the Appropriate Authority which consists of Joint Secretary and Joint Director of the Health and Family Welfare Department, an eminent woman representing women’s organization, the officer of Law Department of the State or the Union territory and eminent registered medical practitioner. Within the 90 days of Bill becoming a statute, the Central and State Governments shall appoint one or more appropriate authorities. The functions of the competent authority include (i) issuing, suspending or cancelling the registration of surrogacy clinics (ii)implementing standards for surrogacy clinics (iii)investigating and taking action against violation of the provisions of the Bill (iv) recommending modifications to the rules and regulations in accordance with changes in technology or social conditions. Further, Appropriate authority shall exercise the powers such as (i) search any suspected place, document and summon to any person who is in possession of any information relating to the violation of the provisions of this Act (ii) maintain the details of registration, cancellation, and renewal of surrogacy clinics; grant of certificates to the intending couple, surrogate mothers and license of the surrogacy clinics in such format as may be prescribed and submit the same to the National Surrogacy Board.
CHAPTER VII (Section 36-43) 20 penalizes any person up to 10 years imprisonment and fine up to10 lakh rupees for offenses such as advertising or undertaking commercial surrogacy in any manner, disowning or exploiting the surrogate child or surrogate mother, selling or importing human embryo or gametes for surrogacy purpose and conducting sex selection in any form for surrogacy
CHAPTER VIII (Section 45-52) 21 deals with the miscellaneous provisions which include Maintenance of records, Power to search and seize records, Power to make rules and regulations by the Central Government and by the Board, protection of government or any appropriate authority from any prosecutions for the actions taken by them in good faith and power of the central government to remove the difficulties for the provisions which are inconsistent with provisions of this bill.
Surrogacy has been the vogue in the country for more than 12 years. The purpose of the bill is to affirm effective regulation of Surrogacy, prohibit commercial surrogacy, and allows ethical surrogacy. And it will also prevent the exploitation of surrogate mothers and children born through surrogacy. Although the bill was made with the intension of preventing this exploitation, but some of the clauses do not in consonance with the Constitutional Provisions. As the Bill fails to pass the “Golden Triangle” 22 test laid down by the Supreme Court which inspects the constitutional validity of the laws enacted by the Government. This test checks the equality, liberty, and freedom of rights, itaims is to ensure that the basic fundamental rights of individuals are not encroached upon by the State.
Article 21 of the Constitution of India is a sacred and cherished right to life and personal liberty, it has an important role to play in every person’s life 23. It enshrines the principles of Right to Life, Personal Liberty, and Right to Livelihood 24.
In the Consumer Education and Research centre and Ors, v. Union of India 25, the Supreme Court stated that the expression ‘life’ under Article 21 of the Constitution has a much wider meaning and includes the right to livelihood. This principle was also recognized in Olga Tellis v. Bombay Municipal Corporation 26. But this “right to livelihood” is violated in the Surrogacy Bill as it imposes a complete ban on commercial surrogacy threatens an important possibility for poor women to earn desperately needed money, or to achieve some kind of financial independence or stability for themselves and their families by giving consent to be surrogates instead of monetary compensation. It is admitted that exploitation of poor women is rampant in India, but a blanket ban on commercial surrogacy does not provide justice to them, and instead, it will take away the right to livelihood that women are guaranteed in the Constitution of India.
Further, the right to life includes the right to reproductive autonomy – that includes the right to procreation and parenthood 27. In Devika Biswas v. Union of India 28, the supreme court recognized the right to reproduction as an important component of the ‘right to life’ under Article 21. These reproductive rights of women include the right to carrying a baby to term, giving birth, and raising children. They also include rights to privacy, dignity, andintegrity of the body. Thus, restricting surrogacy only to heterosexual couple and widow or divorcee women within a certain age group and denying reproductive choices to LGBT, single persons, and older couples, violatingtheir Article 21.
According to Constitution, State cannot interfere in the prerogative of any person whether the child through natural process or through surrogacy. The Andhra Pradesh High Court in the case of B.K. Parthasarthi v. Government of Andhra Pradesh 29, states that state’s interference on procreation amount to a direct encroachment on one’s “right to privacy” that has been recognized as a facet of right to life under Article 21 in K S Puttaswamy v Union of India 30, where bench held that privacy of any person covers personal autonomy relating to the body, mind, and to making choices. In a Suo Moto PIL filed for the deplorable condition of a female prison inmate in which high court stated that a “woman alone should have the right to control her body, fertility and motherhood choices” 31. As the right to decide about reproduction is essentially a very personal and private decision and it should be according to women’s choice and controlled by the women’s body but in this bill, State interfere in such decision-making process. If a woman wants to help a needy couple by providing a child of his own, then the state cannot interfere with this humanitarian act, and rather, such acts should be appreciated. Also, the government does not give proper reasoning that why unmarried and childless women would not be surrogates. And in the absence of such justification, we can assume that the state’s action to curtail the reproductive choices of women violates a constitutional provision.
Conclusively, the Bill is clearly a violation of the right to livelihood, right to privacy, and right to reproductive autonomy under Article 21. Even after a decade of changes in the surrogacy bill, the bill still requires a comprehensive law that deems fit with the current societal practices associated with Surrogacy.
Article 14 32 guarantees “equality before law and equal protection of laws to all persons”. The fundamental principle of Article 14 forbids class legislation but permits reasonable classification. To pass test of permissible classification, the Court has laid down two tests which must be satisfied i.e. intelligible differentia and rational nexus. 33
When the classification is not found on any intelligible differentia and has no nexus with the object to be achieved, the differentiation is invalid 36.
The classification in the Bill based on of marriage by allowing on to married couples is arbitrary and would not stand the test of reasonable classification under Article 14 of the Constitution. Especially when single parents i.e. non-married individuals or parents are allowed to adopt children.
The Bill must be questioned as it against the striking down of Section 377 of the Indian Constitution by the Supreme Court, which decriminalized consensual sexual relations between two adults of any sexuality 37. So, the Bill denies the rights of homosexual couples to commission a child and refuses to acknowledge these couples as ‘legitimate’.
Transgenders have also been recognized as a third genders by the Supreme Court of India in National Legal Services Authority v. Union of India 38 which give them equal power as gender of male and female. But the Bill fails to provide for equality of those basic rights to every gender. The current Surrogacy Draft (Regulation) Bill, 2020 creates a specific criterion, which is very narrow for commissioning surrogacy and it would disentitle transgenders from commissioning surrogacy.
Article 14 of the Constitution of India guarantees equality before the law. The use of “any person” in the provision ensures that the benefit of Article 14 is not confined to citizens alone but is available to any person within the territory of India. But Bill only allows an Indian citizento be part of surrogacy and not permitted foreigners. 39
The Surrogacy Bill allows for surrogacy only to married Indian couples and widows or divorcees and disqualifying others on the grounds of marital status, age, sexual orientation, and nationality impinges upon the right to equality for being an unreasonable classification 40. Allowing altruistic surrogacy to those Indian citizens who are a married couple, widow or divorcee and the exclusion of all others bears no nexus whatsoever the object of the bill is.
The primary objective of the Bill is to prevent misuse of surrogacy and to shield women from exploitation. But this could prove inimical, as the domestic altruistic surrogacy will offer an opportunity for corruption and exploitation, pushing surrogacy into unethical hands. It could allow underground abusive trade in surrogacy. Therefore, these provisions cannot stand the test of constitutional validity.
Thirdly, the proposed law is violating Article 19(1)(g) which guarantees the “freedom of trade and profession” 41. Being not an absolute right, Article 19(6) 42 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, present itself in the ‘interest of the general public’, but it fails.
The Supreme Court of India, in Chintaman Rao v. State of MP 43 has correctly confined the word ‘restrictions’ of Article 19(6) and stating that the phrase ‘reasonable restriction’ imposed the limitation on a person in the enjoyment of the right which should not be arbitrary or of excessive nature beyond what is required in the interest of the public. Court also held that the law should strike the proper balance between the freedom guaranteed under Article 19(1)(g) and the social control according to Article 19(6). 44
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 45, 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 andviolated their right to carry on one’s profession or occupation under Article 19(1)(g) of the Constitution. 46 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 couple 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.
Secondly, 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 also not justified as a reasonable restriction.
In this view, the Bill is unsuccessful in maintaining a balance between regulations and rights, demonstrating a process of legislation that is devoid of know-how to integrate the two effectively.
Law is to act both as an ardent defender of human liberty and an instrument of a distributor of positive entitlements. Further, the law must keep pace with the emerging technologies so that their constructive benefits could be availed by those in need. 47 However, the Bill only allows altruistic surrogacy by puttinga blanket ban on commercial surrogacy. It forbids foreigners, NRIs, and PIOs from commissioning surrogacy in the country. It deprives the surrogate mother of availing the benefits of commercial surrogacy. As commercial surrogacy seems to be an attractive alternative for either of the parties involved. Firstly, the poor surrogate mother gets financial stability, and on other hand, the infertile couple gets their long-desired biologically related child. And apart from that, it includes foreign currency investment. Thus, it is necessary to find a midway that facilitates commercial surrogacy but in a regulatory manner. If we permit commercial surrogacy with high charges but in a restricted manner i.e. Any woman becomes a surrogate mother once in a lifetime if she satisfies the criteria set by the government regarding the health and other situation. Also, the amount should be fixed per surrogacy to avoidbargaining among the parties. This will help surrogate mothersby solving some of their immediate financial problems and the intending couple will get their biological child.
The government gives a nod to altruistic surrogacy that could prove counterproductive. It will offer an opportunity for corruption, black marketing, and also the surrogacy procedure being done clandestinely. By banning commercial surrogacy, the Bill assumes that altruistic surrogates are not exploited, ignoring the fact that unpaid surrogacy is also exploitative. The Bill also ignores the potential loss of earnings of the surrogate because she will have to effectively put her life on hold for two years to complete the process of surrogacy. It is expected that a woman must act as a surrogate and go through all the physical and emotional tolls of this arrangement free of cost and only out of “compassion” because many women would not be interested in carrying someone’s child without being paid for it. The irony is that through this “altruistic model” 48, it promotes forced labour. Thus, ‘compensatory surrogacy’ would be a more appropriate word to make good for the losses suffered by the surrogate mother in terms of health, wages, sufferings, and death, etc. and hence the word ‘altruistic surrogacy’ should be replaced with the word ‘compensatory surrogacy’.
The Bill proposed that the intending couple and the surrogate mother need a certificate of eligibility, but it does not mention a time limit for the certificates being issued. As per the bill, the approval of the competent authority and the consent of the surrogate mother are required for an abortion. However, it does not give any role for the intending couple in the decision for abortion. In the Bill, there is no provision for intending couples as sometime surrogate mothers may take advantage. There should be a provision in the Bill in which Surrogate clinics also be established at the district level with a lady medical practitioner appointed full time. Therefore, itneeds to make separate provisions in the Bill on such issues also.
Surrogacy is a part and parcel of Assisted Reproductive Technology (ART). Bringing Surrogacy Bill before the ART will be irrelevant. The Surrogacy Regulation Bill needs to be positioned and understood in close conjunction with the ART Bill because the ART Bill deals with the mode, the procedures, and the technology of reproductive medicine in surrogacy while the Surrogacy Bill deals with the implications and the ethical issues arising from such arrangements. Therefore, the regulation of ART is a necessary pre-condition for the effective implementation of the Surrogacy Bill. The Surrogacy Bill is based on social, legal, ethical, and moral aspects whereas ART regulation Bill addresses highly technical and medical aspects. Most of the countries have separate Acts to regulate ART and Surrogacy. Hence, the Surrogacy Bill should come into force only after the enactment of the ART Bill. 49
There is no such provision in the Bill to reimburse surrogate the loss of wages during pregnancy if she would have been working during the time of carrying the pregnancy. However, proper compensation to the surrogate should be given and be regulated by the Government, so that there is no scope for bargaining.
There is a requirement to add a provision in the Bill in which every Reproductive clinic must have counselling department to check that whether the surrogate mother was coming voluntary or by forcefully. This can be an effective method to check the mental condition of the surrogate mother. The counselling team should give counselling to the surrogate mother about the entire process of the Surrogacy as well as about the health issue relating to it in an unbiased way. To make sure that the Surrogate mother should know the process and risk involved before going through this.
We should also consider the possibility of any unforeseen situation or rift or divorce between the intending couple which may render a child abandoned. Clear provisions regarding roles and responsibilities of intending couples and surrogate mothers in cases of abandonment of surrogate children by intending parents, need to be provided in the Bill for the best interest of such children. If any kind of dispute arises, it should be declared immediately that the child needs care and protection.
Today surrogacy is a need of society. In some cases, surrogacy is the last hope for those infertile couples, who are unable to get their biological child. The role of a child would not undertake in a society. Childlessness affect the social and psychological aspect of a family and ultimately the society. Having a child makes a couple’s life more meaningful and complete and the object of a fundamental right is to make life more meaningful, complete, and worth living. Therefore, surrogacy should come under the purview of fundamental rights.
The Supreme Court in Murlidhar Aggarwal & Anr. v. State of U.P. 50 remarked that public policy does not remain static in any given community and change from generation to generation and even in the same generation. Public policy is useless if it were to remain in fixed moulds all the time. So, the Government should enact laws that are compliant with fundamental rights of citizens and reflect the changing social mores and take every action which facilitates this option safely and with dignity as surrogacy is a blessing of medical science to us.
Furthermore, the Bill is unsuccessful in maintaining a balance between regulations and rights and it is not constitutionally valid as can be seen from the interpretation of Article 14, 21 and 19(1)(g) as well as from the decision given by Hon’ble Supreme Court in the landmark judgments. But this Bill can bring a change if loopholes mentioned above are dealt with, it will result in better implementation of this bill which can go a long way in protecting the rights of surrogate mothers.