Surrogacy Engineering: The Ruckus between the Primordial Human Rights, Courts and Legislative Adamancy

Parenthood is considered as one of the most significant and life-changing event which every couple wishes to experience but the extra engaged and extreme busy life has negatively impacted the biological set up and has led to various complications and augmented the count of infertile parents. With the advancement in technology and scientific developments, the researchers have evolved an alternative concept of “surrogacy”. Surrogacy is an arrangement in which a woman agrees to become pregnant and give birth in order to provide a child to a third party, who agrees to act as the parent.[1]

The American Law Reports[2] defined the term “surrogacy” in the following manner:

 … a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the child’s.

The nature of this agreement is purely personal arrangement as all the particulars or particular details of the agreement are left to the will of the parties to be determined.

In many of the international surrogacy cases, namely, in TT (A Minor), In re[3] and P (Surrogacy: Residence), In re[4] the utmost significance of the case is summed up by stating that “the surrogate child is born as a result of the surrogacy agreement” thus implying all the conditions, situations, stakeholders or parties, the promises undertaken by them respectively leading to the birth of surrogate child. There are a plethora of views regarding the issue of “surrogate birth” in various countries. An infertile couple who enters into a surrogacy arrangement believes that any State interference with their surrogacy arrangements is unconstitutional[5] as the right to procreate is a “fundamental right” protected by the Constitution.[6]

It is rather a tumultuous point of law as there are only a handful of nations recognising it and there is also a lack of uniformity in the principles being followed in these nations with respect to the phenomenon of surrogate birth.[7] Surrogacy is presently legalised in only ten nations, banned in almost 7-8 and is unregulated in rest of the world. The Constitution of India as such contains no specific stipulation regarding the right of married couples to employ surrogate motherhood though the  Supreme Court of the United States of America, however, has long held that the concept of liberty embodied in the due process clause of the fourteenth amendment is broad enough to extend constitutional protection to certain rights not explicitly mentioned in the text of the document and as such vide a series of judgment given due approval and recognition to the right of surrogacy to the infertile couples.[8]

The Surrogacy (Regulation) Bill, 2019[9] intends to impose ban on the commercial surrogacy. The ban tried to be imposed by way of the proposed law is nothing but a direct attack on the fundamental rights of women which are very well protected under the Constitution of India. The provisions enumerating restrictions in adapting surrogacy by married heterosexual couples contained in the Bill within strict age range also discriminates against members of the lesbian, gay, bisexual, and transgender (LGBT) community, older couples, and unmarried people who might seek to have children. Transgenders have also been recognised and duly respected as a third gender by the   Supreme Court of India in National Legal Services Authority v. Union of India[10]  which made them stand mutatis mutandis to the male and female. Unfortunately, the Bill fails to make provision for the above and hence creates a specific criterion, which is very narrow for commissioning surrogacy and it would disentitle them from participating in the process of surrogacy thereby rendering the law dehors to Article 13 of the Constitution of India[11].

The Bill not only encroach upon their right to personal liberty, rather it goes to shake the root of principles of equality enshrined under Article 14 of the Constitution of India[12]. The Surrogacy (Regulation) Bill, 2019 is a backsliding  piece of legislation that includes meddling stipulations reminiscent to that of a police State rather than a welfare State. If enacted as the law of the land, it could be a first step towards a Gileadean dystopian future devoid of grundnorm rights and freedom of  women.

By snooping with the right of procreation of an individual, the wished for law not only impinges upon the “right to find a family”, it also contradicts the principle enshrined, celebrated and enumerated in Article 16 of the Universal Declaration of Human Rights (UDHR) which is a stark violation. Supplementary to the above, the Bill also infringes the provisions of Convention on the Elimination of All Forms of Discrimination against Women[13], which requires State parties to curb discriminatory practices and ensure that the men and women have identical rights “to decide freely and responsibly on the number and spacing of their children which ex facie falls only in their kitty”.

Dr Roel Schats[14], arguing against the dogma of commercial surrogacy said that, “It is a form of modern slavery to use an Indian woman as a breeding machine without the benefit of any form of care.” And we all know that slave system is the violation of human rights. The National Rapporteur on Trafficking in Human Beings of Dutch Commercial Surrogacy in their report discussed that if a woman is forced, coerced and exploited to become a surrogate mother in that case it will be considered as a crime and it will fall under trafficking.[15]

The supporters of the concept of surrogacy see this restriction in violation with the fundamental rights of the individual enshrined under the Constitution of India. Not only this, it also seems to be bereft of ratio decidendi as laid down in catena of judgments rendered by the Supreme Court of India from time to time. In Devika Biswas v. Union of India[16], the Supreme Court has recognised the right to reproduction as an important component of the “right to life” under Article 21[17]. The reproductive rights of women include the right to carrying a baby to term, giving birth, and raising children. The Andhra Pradesh High Court in B.K. Parthasarathi v. Govt. of A.P.[18], held that the State’s interference on procreation amount to a direct encroachment on one’s “right to privacy” that has been recognised as a facet of right to life under Article 21 of the Constitution of India.

The definition of infertility as explained in the Bill seems to be incomplete as it does not cover those couples who conceive but unfortunately owing to weak and deficient ovary syndrome are not able to sustain the pregnancy. Not only this the term of 5 years seems to be impractical and subjective, it being a term which may vary from person to person as regards conception and hence is prima facie impractical and has no universal application. Also, barrenness worryingly endangers a woman’s personal reputation and worth in the family and might result into emotional and psychological turbulence. The humiliation appended in discussing about issues relating to reproductive and menstrual cycle still prevails in the society and as such it would be highly difficult and impractical to act in accordance with the provision of the Bill and seeks assistance of a close relative and is nothing but lack of proper vision at the behest of the legislature.

Arguendo, the Parliamentary Standing Committee was of the firm opinion that the Bill of 2016 restricting surrogacy exclusively to altruistic cases is unacceptable and “is based more on moralistic assumptions than on any scientific criteria”, and that “all kinds of value judgments have been injected into it in a paternalistic manner”. The Committee’s pertinent recommendation of replacing “altruistic” surrogacy with “compensated” surrogacy was categorically ignored in the 2019 Surrogacy Bill and came up with this blind provision which directly hampers and violated the basic fundamental rights of the proposed parents and is also against the settled law of the land and is highly probable of being thwarted away in its entirety.

In humble view of the authors, this Bill also violates the laws relating to adoption, more particularly the Juvenile Justice (Care and Protection of  Children) Act, 2015[19] and the Hindu Adoptions and Maintenance Act, 1956[20] which allows single, divorced parent to adopt the child but in absence of intentional ramification, this will surely lead to assailment before the  Supreme Court once it becomes an Act it bring ultra vires to the Constitution and in contradiction to the contours of Article 13(2) of the Constitution of India[21]. Though it is pertinent to mention here that the provisions of clauses (1) and (2) are not applicable to a law declared by the  Supreme Court under Article 141[22] and the directions issued under Article 142 of the Constitution of India[23],  as held by the Supreme Court in Ashok Kumar Gupta v. State of U.P.[24]

It is also worth referring to the need that Bill is required to be revisited inasmuch as the exclusion of the transgenders to adapt to the concept of surrogacy which directly attracts violation of the fundamental right to equality as enumerated under Article 14 of the Constitution.

In Nar Singh Pal v. Union of India[25] , the Court observed:

“Fundamental rights under the Constitution cannot be bartered away. They cannot be compromised nor there can be any estoppel against the exercise of fundamental rights available under the Constitution.”

The Bill also does not speak about rather excludes the right of surrogacy to couples engaged in a “live-in relationship”. The Supreme Court of India, very recently ruled that, “In the modern time, live-in relationship has become an acceptable norm and is not a crime.”[26] It would be pertinent to mention here that even children that are born out of such relationship are accepted as legitimate under the realm of law and as such the female partner in relationships is entitled to the same rights as a spouse in marriage is. In view of the above position, the live-in partners are denied surrogacy rights which are beyond judicious prudence.[27]

The intent behind restricting the altruistic surrogacy to married couple seems to be paramount importance of the child and it is an undisputed fact that the mother and the father have equal roles to play in the development of child. However, it is not true that they necessarily should be married to be responsible as marriage only related to responsibility towards each other and their families and not anything else. It cannot by any stretch of imagination be said that non-genetic parents are not capable of carrying out responsible upbringing of the child. Not getting married is a personal choice of a person and it cannot be forced upon anyone nor it can be made a precondition to adoption.  If this so much goes against the “Indian ethos”, as opined by late Smt Sushma Swaraj[28] then firstly the children from widows should be taken away on the ground of there being only one surviving parent alive and also from the surviving father when the mother dies as it might suddenly make them irresponsible upon the death of one of the spouse.

Concluding remarks

The grundnorm object seems to be the existence of extreme poverty as to why the women opt to be the surrogate mothers and even if the ban as proposed by the Bill is imposed, social and economic insecurities will continue to bother them and will only make their position more futile. Imposing restrictions will seriously affect the livelihood of women who were predominantly based upon such income. If compared to a host of other nations, altruistic surrogacy is permitted however it is not constrained to close relatives and one-time pregnancy. The Bill seeks to victimise the intended parents on the basis of marital status, age, sexual orientation and other counts and as such a lucid nexus needs to exist between the object sought to be achieved by introduction of such law and the actions employed through the means of such discernment.[29] On the other hand considering the financial facet, the synchronised provisions of commercial surrogacy can further lead to generation of huge proceeds amid medical tourism and can be a boon for catena of infertile couples and at the same time will also be a life changing tool to act as a resurgent and aid surrogate mothers to earn a reliable source of income to run their family and raise their children wisely and effectively. Apropos to the above it can be understood that the legislative intent and approach ex facie seems to be futuristic and a step towards strengthening the human respect and dignity though its immediate impact seems to be a little harsh and against the settled principles of law and binding force of judicial precedents as enshrined under Article 141 of the Constitution. Though the immediate result which the Bill seeks to achieve is to eradicate the surrogacy clinics becoming “baby factories” and “prison cells” for the penurious and underprivileged women. Nevertheless, this does not absolve the legislature from the responsibility of revisiting various provisional flaws which will certainly be declared ultra vires if made a law.

The surrogacy industry was not illegal but unregulated in India till the advent of the legislature through the introduction of Surrogacy Bills but unfortunately could not get transformed into a law. But it will, in effect, be illegal if the new Bill becomes law because inter alia only altruistic surrogacy will be allowed. The anticipated commandment is a clear case of homophobia, majoritarian implementation of traditional medians, and discrimination against non-heteronormative relationships. By restraining easy admittance to the process of surrogacy on frail and embryonic grounds, the Government is not only playing with the basic rights of the citizens but also providing room for augmentation of black marketing being more prevalent resulting into frustration of the entire purpose of the introduction of the Bill. It seems as if the Government is dormant about their actions taken in the past regarding the ban on sex-determination tests and organ donations, which has already led the entire market underground leaving it in a hanging position, far from organised and uncontrolled form of black money owing to the “boy birth” culture prevailing in the country heavily violating the fundamental right of life and personal liberty of the vulnerable section of the society.

In Consumer Education & Research Centre v. Union of India[30] 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. It is high time when the Government should realise the unrealistic ban amid the changing dimensions of the generation and also the reformative and dynamic approach of the Supreme Court which is rendering judgments on the basis of equality and welfare of citizens especially treating women of the nation at par with the men[31] which is itself an indication of the development and progression of the nation. Egalitarianism of sexes is a fundamental principle of any contemporary, progressive society and country. The judgment rendered by the Supreme Court will definitely rectify a discriminatory social practice. The decision needs to be welcomed with folded hands.

The Supreme Court in Murlidhar Aggarwal  v. State of U.P.[32] 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. The idea of public policy itself is ever-changing and dynamic. It has been described to be illusive, varying and uncertain variance being not only from generation to generation[33], but also from within a generation.[34]


* Research Scholar, pursuing PhD, e-mail: deepika@singhvilaw.in

** Research Scholar pursuing PhD, e-mail: mohit@singhvilaw.in

[1] Surrogacy, Merriam-Webster Dictionary (11th Edn. 2003).

[2] American Law Reports, Validity and Construction of Surrogate Parenting Agreement, 77 ALR 470 (1989).

[3] 2011 EWHC 33 (Fam).

[4] (2008) 1 FLR 177.

[5]  Sherwyn and Handel v. California State Department of Social Services, 218 Cal Rptr 778 (1985).

[6]  Thomas S. Eisenstadt v. William R.  Braid, 1972 SCC OnLine US SC 62 :  31 L Ed 2d 349 :  405 US 438 (1972) .

[7] Reetu and Basabdutta, “Surrogate Birth”, AIR 2009 Jour 109.

[8] Jane Roe v. Henry Wade, 1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 :  410 US 113 (1973) .

[9] The Surrogacy (Regulation) Bill, 2019  

[10] (2014) 5 SCC 438 

[11] Article 13 of the Constitution of India.

[12] Article 14.

[13] UN General Assembly, Art. 16 of the Convention on the Elimination of All Forms of Discrimination against Women, 18-12-1979, United Nations, Treaty Series, Vol. 1249.

[14] CMO, IVF Centre, VUmc, Netherlands.

[15] Law Commission of Indi, Report No. 228, Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy, 5-8-2009. http://www.scconline.com/DocumentLink/ymwVqjS9.

[16] (2016) 10 SCC 726

[17]  Article 21, Constitution of India.

[18] 1999 SCC OnLine AP 514 

[19] Section 57  http://www.scconline.com/DocumentLink/epkNqrYU.

[20] Sections 7 and  8. http://www.scconline.com/DocumentLink/xT328922 http://www.scconline.com/DocumentLink/6E028Yqa

[21]  Article 13(2), Constitution of India 

[22]  Article 141.

[23]  Article 142.

[24] (1997) 5 SCC 201

[25] (2000) 3 SCC 588 

[26] Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1

[27] Vishnu Sharma, Surrogacy Bill Gets the Cabinet Nod, The Hindu, 24-8-2016.

[28] Surrogacy for gay couples is against our ethos: Sushma Swaraj, The Quint, available at <https://www.thequint.com/india/2016/08/24>.

[29] Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1

[30] (1995) 3 SCC 42

[31] Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1

[32] (1974) 2 SCC 472.

[33] Gherulal Parakh v. Mahadeodas Maiya, AIR 1959 SC 781 

[34] P. Rathinam v. Union of India, (1994) 3 SCC 394.

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