The last two decades have witnessed a dramatic surge in cases of commercial surrogacy in India, whereby women – predominantly from impoverished households or marginalised communities – have resorted to renting their wombs in exchange for monetary compensation. India has fast emerged as the global hub for commercial surrogacy. However, the legislative lacuna in this regard has fuelled unethical practices detrimental to the health and well-being of surrogates. As the Government of the day seeks to enact a law regulating surrogacy, strictly defining eligibility criteria for intended parents and surrogates, it is imperative to analyse if, despite its best intentions, the State is overstepping its authority and interfering in the private lives of individuals. This note discusses the Surrogacy (Regulation) Bill, 2019 for the limited purpose of whether it transgresses upon the citizen’s constitutionally guaranteed rights to privacy and reproductive autonomy, and arbitrarily discriminates against unmarried or same-sex couples, gender non-conformists, and singles by disallowing them the option of embracing parenthood through surrogacy. The note further examines the alignment of select clauses with India’s commitments under relevant international treaties.
Surrogacy in India – A regulatory backdrop
Surrogacy is unregulated in India. The absence of legislation to govern this space has led to the mushrooming of surrogacy clinics and rampant exploitation of women who choose to become surrogates, often due to abject poverty.[1] Unconscionable practices are frequently employed by surrogacy clinics, and owing to their illiteracy and indigence, surrogates are usually excluded from the decision-making process, which remains restricted between the intended parent(s) and medical professionals.[2] In the past, disputes regarding conflict of laws have arisen in cases where the intended parent(s) were not Indian citizens and withdrew from the arrangement at an advanced stage, as India no longer grants birth right (jus soli) citizenship.[3] Labyrinthine legal contestations have been witnessed as Indian law mandates that a child born through surrogacy must be legally adopted by the intended parent(s) after birth, but forbids a single adult male from adopting a female child.[4] Further, considering the taboo around assisted reproduction in India, surrogates are typically constrained to carry the foetus in secrecy, in deplorable physical conditions, and for sums of money approximately a third of what the practice would cost in developed countries.[5]
In 2005, the Indian Council for Medical Research issued guidelines specifying, inter alia, eligibility criteria for intended parents and rights of surrogate mothers.[6] However, these guidelines were directory in nature and therefore, legally unenforceable. The Supreme Court of India (hereinafter, “Supreme Court” or “Court”) first recognised the practice of commercial and altruistic surrogacy in Manji Yamada v. Union of India.[7] Pertinently, the Court acknowledged that intended parents may include homosexuals, single males, or women who are fertile yet unwilling to undergo pregnancy, and not simply infertile spouses.[8] Subsequently, in August 2009, the Law Commission of India (hereinafter, “Law Commission”) released a Report recommending that all forms of commercial surrogacy be outlawed.[9] The Law Commission, however, noted that “prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational.”[10]
On 15-7-2019, the Minister for Health and Family Welfare, Government of India, Dr Harsh Vardhan, introduced the Surrogacy (Regulation) Bill, 2019[11] (hereinafter, the “Bill”) in the Lower House of the bicameral Indian Parliament (Lok Sabha).[12] The Bill was passed by the Lok Sabha on 5-8-2019, following which it was transmitted to the Upper House (Rajya Sabha).[13] Amidst concerns that the Bill was backwards looking and disregarded recommendations[14] made by the Parliamentary Standing Committee[15] on the erstwhile Surrogacy (Regulation) Bill, 2016[16] (which had eventually lapsed[17]), the Bill was referred to a Select Committee of the Rajya Sabha for review.[18] On 5-2-2020, the Select Committee submitted its Report, recommending the retention of multifarious contentious clauses, while suggesting amendments to certain others.[19] Although the Union Cabinet has announced its decision to accept these recommendations,[20] no motion has been moved by the Minister-in-Charge thereon.[21] Therefore, the Bill, as of 15-1-2021, is pending before the Rajya Sabha in its original form.[22]
Evaluating key clauses of the Bill on the touchstone of constitutionally guaranteed fundamental rights and recent judicial pronouncements
Clause 4 of the Bill prohibits all forms of commercial surrogacy – thus permitting only altruistic surrogacy.[23] Only married women between 25 and 35 years of age who have at least one biological child can be surrogates.[24] The Bill also restricts the number of times a woman may act as a surrogate to only once in her lifetime.[25] Further, intended parents must be “proven infertile”, and obtain an “eligibility certificate” – condiciones sine quibus non for which are that both partners be Indian citizens, married for a minimum of five years and having no surviving child – whether biological or adopted or otherwise.[26] An age bracket has also been specified for the intended parents, whereby the male must be between 26 and 55 years of age and the female, between 23 and 50 years.[27] Additionally, the Bill mandates that only a “close relative” of the intended parents can be the surrogate mother of their child.[28] However, the term “close relative” has not been defined.
Prima facie, the strict qualifications for surrogates and intended parents specified in the Bill are a case of excessive State intervention in the private lives of individuals. Article 21 of the Constitution of India[29] (hereinafter, “Constitution”) universally guarantees the right to life and personal liberty, and in K.S. Puttaswamy v. Union of India, the Supreme Court has upheld an individual’s right to privacy as intrinsic to Article 21, recognising further that privacy is relatable to the constitutional right to make reproductive choices.[30] Moreover, in Suchita Srivastava v. Chandigarh Admn., the Supreme Court had ruled that “a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India.”[31] Judicial precedent is, therefore, abundantly clear that the Constitution protects and safeguards reproductive choices as part of the individual’s inalienable right of personal liberty. In this context, the austere eligibility criteria set out in the Bill appear to encroach upon the private lives of both surrogates and intended parents and strip them of reproductive autonomy.
Additionally, the Bill restricts intended parents to only married couples.[32] Since personal laws in India do not recognise same-sex marriages, the Bill makes it impossible for same-sex couples to embrace parenthood through surrogacy owing to their inability to fulfil the criterion of being married. It follows that transgender and gender non-conforming individuals are also excluded from the confines of intended parents that recognises only natural-born male and female spouses, in stark transgression of the position settled by recent judgments of the Supreme Court. In the 2018 landmark judgment of Navtej Singh Johar v. Union of India, wherein consensual same-sex relationships were decriminalised, the Court had observed that the time had arrived for the constitutional guarantee of equality and inclusion to end the decades of discrimination practised on a “majoritarian impulse of ascribed gender roles.”[33] In Puttaswamy[34], the Supreme Court had elucidated that “sexual orientation is an essential attribute of privacy, and any discrimination against an individual based on sexual orientation is deeply offensive to the dignity and self-worth of the individual.”[35] The Court had further propounded that protection of an individual’s rights to privacy and sexual orientation lay at the heart of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.[36] Similarly, in National Legal Services Authority v. Union of India, the Court had recognised members of the marginalised transgender community as the “third gender” and observed that discrimination on account of gender identity and sexual orientation undermines equality before the law and equal protection of the laws, thereby violating Article 14 of the Constitution.[37] Consequently, the absolute debarment of same-sex partners and persons with non-binary gender identities from the purview of the Bill is, arguably, in contravention of their fundamental rights and the law laid down by India’s Supreme Court in notable judicial pronouncements.
Finally, the Bill also forbids singles and heterosexual cisgender couples who may be in a “live-in relationship” i.e. cohabiting but not legally married, from opting for surrogacy. It is pertinent to note that Parliament has previously accorded statutory sanctity to such relationships by classifying them as “relationships in the nature of marriage.“[38] An individual’s choice to marry or not has been held by the Supreme Court to be beyond the legitimate concerns of the State, thus precluding singles and cohabiting couples from opting for parenthood through surrogacy simply because they are not married is seemingly an encroachment on their privacy and an unwarranted infringement of their right to equality.[39]
Examining the Bill against India’s obligations under international law
Historically, the Supreme Court has aligned its judgments with India’s obligations under international law, particularly when there is no binding municipal law governing the relevant subject-matter. In NALSA[40], the Court held that “in the absence of a contrary legislation, municipal courts in India would respect the rules of international law.”[41] Notably, the Court in that judgment, had referred to the Universal Declaration of Human Rights (hereinafter, “UDHR”)[42] while extending the ambit of constitutional protection to transgenders,[43] and observed that any international convention which is in harmony with the spirit of the fundamental rights guaranteed by the Constitution must be read as part of those provisions thereby promoting the object of constitutional guarantee.[44]
As regards surrogacy, the UDHR, the International Covenant on Civil and Political Rights[45] (hereinafter, “ICCPR”) and the Convention on the Elimination of Discrimination against Women[46] (hereinafter, “CEDAW”) are pertinent international treaties ratified by the Indian Parliament. Article 1 of the UDHR guarantees equal rights to all human beings, while Article 7 mandates State parties to ensure equal protection of the law to all human beings without any discrimination.[47] Similarly, the ICCPR commands State parties to refrain from discriminating against any persons on any grounds.[48] Further, the CEDAW expects signatory nations to ensure equality between men and women in deciding freely on the number and spacing of their children.[49] The Bill, in its present form, is in evident dereliction of the foregoing commitments made by India to the international community for the following reasons – (a) it arbitrarily excludes certain classes of citizens from its gamut: (b) it necessitates that intended parents have no surviving offspring; and (c) it specifies unequivocally that women can act as surrogates only once in their lifetime.
Concluding remarks
The Constitution guarantees equal protection of the law to all and permits class legislation only so long as it is founded on “real and substantial distinction” that has a rational nexus with the object sought to be achieved by the legislation.[50] In the absence of such distinction, the discrimination may be deemed “arbitrary” and in violation of Article 14.[51] The exclusion of non-conforming gender identities, same-sex or cohabiting couples, and singles from the scope of the Bill appears to have no logical nexus with the object of the proposed legislation i.e. regulation of the practice of surrogacy, the prevention of potential exploitation of surrogates, and protection of the rights of the child born through surrogacy.[52] Moreover, such prejudice against certain sections of society is a blatant infringement of India’s obligations under various international covenants.
While it is critical to effectively regulate the burgeoning practice of surrogacy through appropriate legislation, the application of obsolete standards to exclude gender non-conforming communities, singles and unmarried heterosexual couples is unreasoned, apparently anachronistic, and blinkered. In the absence of enforceable municipal laws in India regulating surrogacy presently, obligations under applicable international treaties ought to be conformed to, in keeping with the Supreme Court’s judgment in NALSA.[53] The Bill prima facie appears to starkly disregard the all-embracing nature of the constitutionally guaranteed fundamental rights and the position taken by the Supreme Court in its recent rulings. If enacted in its present form, the Surrogacy (Regulation) Bill, 2019 is unlikely to withstand judicial scrutiny.
***
* This note examines the law as it stood on 31-7-2021.
† Practicing Lawyer at the High Court of Judicature at Bombay and an incoming LLM Candidate at the London School of Economics and Political Science, e-mail: saksheekumar@outlook.com.
[1] Statement of Objects and Reasons to the Surrogacy (Regulation) Bill, 2019.
[2] Centre for Social Research accessible on the website of the Ministry of Women and Child Development at Final Report – Surrogate Motherhood – Ethical or Commercial? <https://wcd.nic.in/sites/default/files/final%20report.pdf> accessed 24-9-2020.
[3] Manji Yamada v. Union of India, (2008) 13 SCC 518.
[4] Manji Yamada v. Union of India, (2008) 13 SCC 518; Central Adoption Resource Authority, Eligibility Criteria for Prospective Adoptive Parents (Ministry of Women and Child Development, Government of India) <http://cara.nic.in/Parents/eg_ri.html> accessed 24-9-2020.
[5] Priya Shetty, India’s Unregulated Surrogacy Industry (2012), the Lancet World Reports Volume 380 <www.thelancet.com/action/showPdf?pii=S0140-6736%2812%2961933-3> accessed 24-9-2020.
[6] National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005.
[8] Manji Yamada v. Union of India, (2008) 13 SCC 518, paras 8-15.
[9] Report 228 of the Law Commission of India, August 2009, Law Commission of India, Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy (Law Commission Report 228, 2009) para 4.1.
[10] Report 228 of the Law Commission of India, August 2009, Law Commission of India, Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy (Law Commission Report 228, 2009) para 4.1.
[11] The Surrogacy (Regulation) Bill, 2019 Lok Sabha (Monsoon Session 2019).
[12] Press Trust of India, Government Introduces Bill to Ban Commercial Surrogacy, India Today (New Delhi, 15-7-2019).
[13] HT Correspondent, Lok Sabha Passes Bill that Bans Commercial Surrogacy, Hindustan Times (New Delhi, 5-8-2019).
[14] Manoj CG, Govt. defers Surrogacy Bill in Rajya Sabha after Members Oppose Provisions, The Indian Express (New Delhi, 21-11-2019).
[15] Parliament of India – Rajya Sabha –Department-related Parliamentary Standing Committee on Health and Family Welfare, One Hundred-Second Report on the Surrogacy (Regulation) Bill, 2016 (2017).
[16] The Surrogacy (Regulation) Bill, 2016 Lok Sabha (Winter Session 2016).
[17] (P. 7, Bill No. 257) Parliamentary Bills Information System (Lok Sabha) <http://loksabhaph.nic.in/Legislation/billslapsed.aspx> accessed 24-9-2020.
[18] Parliament of India – Rajya Sabha, Select Committee on the Surrogacy (Regulation) Bill, 2019 (2019)
<https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/Press_ReleaseFile/70/137/255P_2020_1 _12.pdf> accessed 24-9-2020.
[19] Parliament of India – Rajya Sabha, Report of the Select Committee on the Surrogacy (Regulation) Bill, 2019 (2020).
[20] HT Correspondent, Rajya Sabha Panel Recommendations get Cabinet Nod, Hindustan Times (New Delhi, 27-2-2020).
[21] Rajya Sabha Secretariat, Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), 8th edn. (2013) R. 93.
[22] PRS Legislative Research, Plan versus Performance Monsoon Session: 14-9-2020 to 23-9-2020 (PRS India, 23-9-2020) <https://www.prsindia.org/sites/default/files/Plan%20vs%20Performance_Monsoon%202020_17LS.pdf> accessed 24-9-2020.
[23] The Surrogacy (Regulation) Bill 2019, cl. 4(ii)(b) and cl. 4(ii)(c).
[24] The Surrogacy (Regulation) Bill 2019, cl. 4(iii)(b)(I).
[25] The Surrogacy (Regulation) Bill 2019, cl. 4(iii)(b)(IV).
[26] The Surrogacy (Regulation) Bill 2019, cl. 4(iii)(a)(I); the Surrogacy (Regulation) Bill, 2019, cl. 4(iii)(c)(II); the Surrogacy (Regulation) Bill, 2019, cl. 4(iii)(c)(III).
[27] The Surrogacy (Regulation) Bill 2019, cl. 4(iii)(c)(I).
[28] The Surrogacy (Regulation) Bill 2019, cl. 4(iii)(b)(I).
[29] The Constitution of India, Art. 21 (right to life and personal liberty).
[32] The Surrogacy (Regulation) Bill, 2019, cl. 4(iii)(c)(II).
[33] (2018) 10 SCC 1, para 461.
[35] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, para 144.
[36] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, para 144; the Constitution of India, Art. 14 (equality before the law and equal protection of the laws), Art. 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and Art. 21 (right to life and personal liberty).
[37] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, para 62.
[38] The Protection of Women from Domestic Violence Act, 2005, S. 2(f).
[39] Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, para 84.
[41] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, para 58.
[42] Universal Declaration of Human Rights (adopted 10-12-1948) UNGA Res 217 A(III) (UDHR).
[43] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, para 96.
[44] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, para 59.
[45] International Covenant on Civil and Political Rights (adopted 16-12-1966, entered into force 23-3-1976) 999 UNTS 171 (ICCPR).
[46] Convention on the Elimination of Discrimination against Women (adopted 18-12-1979 entered into force 3-9-1981) 1249 UNTS 13 (CEDAW).
[47] Universal Declaration of Human Rights (adopted 10-12-1948) UNGA Res 217 A(III) (UDHR) Arts. 1 and 7.
[48] International Covenant on Civil and Political Rights (adopted 16-12-1966, entered into force 23-3-1976) 999 UNTS 171 (ICCPR), Art. 26.
[49] Convention on the Elimination of Discrimination Against Women (adopted 18-12-1979 entered into force 3-9-1981) 1249 UNTS 13 (CEDAW), Art. 16(1)(e).
[50] Union of India v. N.S. Rathnam, (2015) 10 SCC 681, para 18.
[51] The Constitution of India, Art. 14 (equality before the law and equal protection of the laws).
[52] Statement of Objects and Reasons to the Surrogacy (Regulation) Bill, 2019.
[53] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, paras 58-59.
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