Pooja Kurian ((Student of Law, Alliance School of Law)).
The Surrogacy (Regulation) Bill, 2016 is an attempt of the government to regulate the process of surrogacy in India. This bill contains several impactful measures which have been awaited for, since a considerable number of years. Though this bill intends to bring positive changes, it has not failed to become a quarry to the socio-legal hindrances prevalent in the society and thus facilitate them. This article aims to analyse the several aspects of this newly passed bill, in detail.
“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.”
– Geetha v. The Kerala Livestock Development Board ((2015 SCC OnLine Ker 71)).
India has come forth to become the forerunner of international surrogacy and has become the most sought after destination for this purpose. Some consider it the billion-dollar industry of India while others question the morality of it. Despite the divided stand, commercial surrogacy has been legal in India since 2002 ((Available at http://surrogacylawsindia.com/legality.php?id=%207andmenu_id=71, last visited August 29, 2016)). Any surrogacy agreement between the parties, is based on free consent and meeting of minds in relation to a specific outcome and interpreted in consensus with the provisions of The Indian Contract Act, 1872. This act, exercises jurisdiction over all such agreements and contracts.But there never have been clear and codified laws in place regarding the practice of surrogacy.
The initial trigger for need of a legislation can be traced back to 2008 ((in the case of Baby Manji Yamada v. Union of India,  13 SCC 518)), where a Japanese couple had a baby girl through a surrogate mother in Anand, Gujarat. By the time of birth, the couple had separated and the baby was parentless and left dwindling between the legal systems of India and Japan. Although, the Hon’ble High Court of Gujarat, granted custody of the baby born out of surrogacy, to her grandmother after a long drawn legal battle. However, the baby was denied Japanese citizenship as surrogacy is not legalized in that country.
Similarly in 2012, an Australian couple who had twins through surrogacy, denied taking one of them because that baby was born with Down Syndrome ((Nidhi Gupta, “What’s Wrong with the Surrogacy Bill”, available at http://www.thehindu.com/thread/politics-and-policy/article9090866.ece last visited on August 15, 2016))and the child was again left without parents. In 2014, a woman died due to a procedure for harvesting eggs from her body as a part of an egg donation drive by a private hospital in Delhi. These incidents highlight the fact that the rights of a surrogate mother and child born out of surrogacy are neglected. Many public interest litigations have been filed in the Supreme Court of India on this issue. The 228th Law Commission Report had also suggested banning commercial surrogacy and promoting altruistic surrogacy for the disadvantaged married Indian couples ((SoumyaSwaminathan, “Why the Surrogacy Bill is Necessary”, available at http://www.thehindu.com/opinion/op-ed/why-the-surrogacy-bill-is-necessary/article9040755.ece last visited on August 29, 2016)).
On 24th August, 2016, the proposed draft Surrogacy (Regulation) Bill,2016 was passed by the Union Cabinet, which is expected to be shortly introduced in the Parliament. If passed, the new legislation will apply to all of India, except Jammu and Kashmir. This was done so, because the government of the day, was of the opinion that, absence of a proper legislation, has ledto exploitation of surrogate mothers. Thus, the main objective of this bill is to prevent commercial surrogacy and also protect the rights of the surrogate mothers, prone to exploitation and unethical practices.
FEATURES OF THE BILL
The salient features of the Bill can be summarized as follows ((S.W. Staff, “All you Need to Know about the New Surrogacy Bill”, available at https://www.scoopwhoop.com/All-You-Need-To-Know-About-The-New-Surrogacy-Bill/#.06jtqqnel last visited on August 29, 2016)):
- It bans commercial surrogacy and only altruistic surrogacy will be allowed. Commercial surrogacy, along with other offences will garner a jail term of at least 10 years and a fine of upto Rs.10 lakhs.
- Altruistic surrogacy will be allowed for Indian nationals only. Foreign nationals and also NRI’s or OCI holders aren’t allowed.
- Single parents, homosexual couples, live-in relationship couples will be denied altruistic surrogacy.
- Parents with biological or adopted children cannot undergo it. But, couples with proved infertility will be allowed.
- Only ‘close relatives’ can stand as candidates for surrogacy.
- The couple cannot pay the surrogate mother in any mode except her medical bills.
- There will be specific guidelines governing hospitals and clinics allowing surrogacy.
- The parentage of the child born through surrogacy will be made legal and transparent.
The new draft bill permits only hetro-sexual couples who have been legally married for 5 years or more and have proven infertility to opt for surrogacy. It also stipulates that surrogate mother should be a close relative. She’s also supposed to be married and supposed to have a healthy child prior to becoming a surrogate mother. Thus, the draft bill approved by the cabinet seeks to provide checks as to who is an eligible candidate for surrogacy and also aims to restrict commercial surrogacy. The bill, also attempts to put a check on the prevalent exploitative, but thriving surrogacy industry.
However, these conditions are arbitrary and unfair as most of the women who indulge in surrogacy are either poor or illiterate and are forced into it by their families. The inferior status of women is deteriorating the cause. But, it cannot be undervalued, that there areseveral poverty-stricken women who choose surrogacy to battle this vicious large-scale social problem. Women rent their womb to earn money, to provide a better life for their children, unlike the life of poverty they have lived. They undergo emotional and physical stress of carrying a child in their womb for nine months, the pain of labour and finally are denied the joy of motherhood when they have to part with the child. Apart from the mental and physical trauma, the aspect of this bill which states that a woman who has been a surrogate mother once, cannot go through with it again, also exacerbates the situation for such women. Thus, for some needy women, commercial surrogacy, which had become a means of livelihood, has been snatched away with this proposed law.
The Preamble of Indian Constitution states that, India is a Sovereign, Socialist, Secular and Democratic Republic and secures Equality, Justice and Liberty for all. Article 14 of the Indian Constitution, guarantees equality before law and equal protection of law to all people. Equivalently, Article 21 of the Constitution of India, guarantees protection of life and personal liberty for all.
Thus, the restriction of allowing only married Indian couples to undergo surrogacy and denying other people the same right only on basis of nationality, marital status, sexual orientation and age does not seem to fulfill the test of equality, or of it being a reasonable classification ((Article 14 of the Indian Constitution)).
The Right to Life also includes the right of reproductive autonomy, which is inclusive of the right to procreation and parenthood. The state does not have the authority to interfere in this fundamental right. It is upon the person and not the state to decide the modes of parenthood, be it naturally or through surrogacy ((Article 21 of the Indian Constitution)). Thus, constitutionally, state cannot interfere and the bill is also violative of the right of productive autonomy as stated in the case of B.K. Parthasarathi vs Government of Andhra Pradesh ((2000 (1) ALD 199)).
The state cannot question a married couple’s decision on the mode of parenthood or the number of children they wish to have. Therefore, the rule of being unable to undergo surrogacy, if they already have a surrogate child or an adopted child is unconstitutional as well. Parenthood should be considered a privilege which should be made equal for all, irrespective of anything.
Furthermore, infertility should not be a compulsory pre-requisite to undergo surrogacy. Ours is a democratic state, which means that the people have an inevitable role in the law making process. The people must have an opportunity to voice their opinions instead of being discriminated against. And, this discrimination perceived to have creeped in knowingly or unknowingly, would have wider legal repercussions to it.
The most attractive side of commercial surrogacy, prior to the proposed Surrogacy (Regulation) Bill, 2016 was the financial aid that the surrogate women would receive. The draft bill envisages that a surrogate mother cannot be paid in any manner except the medical bills, which again negates the most fruitful aspect of commercial surrogacy and the very main reason poor women undergo it.
Another positive change that this proposed law aims to bring is, the clarity in legitimacy of the children born through surrogacy. Also, because of the several limitations imposed, it is likely that childless parents would go in for adoption.
It cannot be overlooked, that the clinics which assisted in commercial surrogacy earned more than the surrogate mothers. A positive and much needed law that the bill has come up with is that, there would be specific guidelines for such hospitals and a National Surrogacy Board chaired by the Health Minister and several State Surrogacy Boards would be established at the Central and State level respectively ((Available at http://ehealth.eletsonline.com last visited on August 29, 2016))to oversee and supervisethe enforcement of the rules.
Surrogacy has been prevalent in India since quite long and now when the need has arisen, the government cannot neglect going into the specifics and just eliminating commercial surrogacy altogether. Instead, the government needs to suitably regulate it thereby streamlining the process and avoid abuse.
The Juvenile Justice (Care and Protection) Act, 2015 allows the court to give a child in adoption to a foreign national, regardless of his/her marital status ((Available at http://pib.nic.in/newsite/PrintRelease.aspx?relid=134513 last visited on August 29, 2016)). Thus, if in the facet of adoption, foreign nationals are included, the proposed law should incorporate foreign nationals in respect to surrogacy also. A country which permits inter-country adoptions should not restrict inter-country surrogacy either.
The government passed the bill to prevent commercial surrogacy. But, it has failed to look into the matter from the surrogate mother’s point of view. The government could have undertaken measures to interact with these economically under-privileged women, who undergo emotional and physical trauma and willingly opt for surrogacy only for the sustenance of their family, knowing the implications of the proposed law on such women, would have added a more humane perspective to it.
Invoking penal provisions has not served the purpose, but it has only encouraged illegal means.Likewise, even though commercial surrogacy would be penalized, it will only risk the flourishment of an illegal and parallel surrogacy industry.
Before the passing of this proposed law, it needs to be extensively scrutinized and an appropriate mechanism has to be come up to oust all the loopholes, and finally enact a democratic law governing surrogacy, which has been a wait for all, for the past ten years. An arbitrary and unjust law should not come into existence, rather the most righteous and well-suited legislation should be evolved and manifested, incorporating liberal sensibility.