This Article is authored by Advocate Anil Malhotra.
Whilst the “ban virus” plagues free speech, viewing habits, dietary preferences and even the right of free thought all over the country in the shape of different rules, regulations and enactments, it also seems anomalous for the Government to practice what it does not preach when it comes to surrogacy. The 2012 guidelines of the Ministry of Home Affairs restricting the joy of parenthood through surrogacy to only foreign couples with at least two years of marriage, thereby depriving single foreign parents their right to be fathers or mothers, falls foul of the 2015 statutory guidelines of the Ministry of Women and Child Development which permits any prospective adoptive single foreign parent, irrespective of his marital status, to adopt a child from India. The benefit of Article 21 of the Constitution available to all persons, including foreign nationals in India guarantees the right to life to all. It envelopes the right to privacy of which the right to reproductive autonomy is an inherent part. Therefore, the right to bear a child or the right to become a parent by surrogacy cannot be curtailed by Government guidelines. Furthermore, the ban on conceiving children through surrogacy by single foreign parents also contradicts the new statutory mandate of adoption of Indian children by single foreign parents. The left and right hands of the Government do not seem to be in tandem.
The Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) allows a Court to give a child in adoption irrespective of marital status. The JJ Act also authorises State Governments to recognise one or more of its institutions or voluntary organisations as specialised adoption agencies for placement of orphan, abandoned or surrendered children for adoption in accordance with the guidelines notified by Central Adoption Resource Agency (CARA). The latest guidelines governing Adoption of Children notified on 17 July 2015, streamline Inter-Country Adoption procedures thereby, permitting single parent adoptions with the exception of barring single male persons from adopting a girl child. The Missionaries of Charity with more than 15 recognised adoption homes in India have reportedly stopped adoption agency operations on being in conflict with single parent adoption norms. This has reportedly been termed in the media by the Women and Child Development Minister to be not wanting to, “come under a uniform secular agenda”.
The verdict of the Supreme Court of July 6 in ABC VS The State, JT 2015 (6) SC 103, holding that a single unwed mother has a right to maintain a petition to claim sole and exclusive guardianship of a child born outside of wedlock, is a path breaking view shattering the shackles of traditional and conventional societal setups in a realm of statutory personal laws where a Uniform Civil Code still remains a Constitutional aspiration. Espousing the implementation of a uniform civil code, which the Apex Court laments as, “this remains an unaddressed constitutional expectation,” the erudite verdict drawing support from India acceding to the Convention on the Rights of the Child overcomes barriers of religion to accord relief to unwed mothers in India by granting the benefit of seeking guardianship, “of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers.” This is in line with some earlier path-breaking verdicts of the Apex Court. In Stephanie Joan Becker 2013(12) SCC 786, a single 53 year old lady was permitted to adopt a female orphan child aged 10 years by relaxing the rigor of the guidelines of CARA in the totality of the facts of the case that the proposed adoption would be beneficial to the child as the experts were of the view that the adoption process would end in successful blending of the child in the US. Likewise, in Shabnam Hashmi v. Union of India (2014(4) SCC 1), the Apex Court upholding the recognition of the right to adopt and to be adopted as a fundamental right has held that every person, including Muslims, irrespective of the religion they profess is entitled to adopt a child. The verdict of the Supreme Court in National Legal Services Authority Vs. Union of India (2014(5) Scale 1) recognising transgender as the third gender have held “that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution.” Clearly, a new family law jurisprudence is emerging.
The Ministry of Home Affairs Guidelines of July 9, 2012, restrict surrogacy in India to duly married foreign men and women only with at least two years of a marital bond. Further 2014 deliberations of Departments and Ministries of the Indian Government on the draft Assisted Reproductive Technology (Regulation) Bill, 2013 also indicate that there is a proposal to restrict surrogacy in India to “infertile Indian married couples” only and it would not be allowed to foreigners unless married to an Indian citizen. This approach can neither be termed as “secular” nor is it constitutionally sound. If by an existing law made by the Parliament, children from India are permitted to be adopted by foreigners, irrespective of being a couple or being single, subject to checks, clearances, permissions and screening by a court, a similar logic must prevail for surrogacy as well.
A PRAGMATIC SOLUTION
The proper approach would be to regulate the practice by a clear codified law in tandem with what has become a societal practice. The ICMR Guidelines, 2005, can no longer navigate practices of surrogacy with changes brought by advent of time and technological advancement whereby frozen fertilized embryos from foreign jurisdictions sent in cryogenic jars await surrogate wombs and other scientific methods have offered hopes to childless people. IVF technology has prompted British Parliament to legalise the conception of babies by three parents. Persons, citizens or foreigners will not matter. The appropriate and desirable method would be to create a mechanism to judge suitability of proposed surrogate parents rather than to debar all single or foreign persons. An existing strict and rigorous mechanism in existence for inter country adoptions administered by CARA, which is now a statutory body, is the ideal example to cite in support. Banning surrogacy for single foreign parents or married foreign couples will not resolve the matter. Unethical practices should not be allowed to be proliferated. We cannot shut our thinking simply because of the problems. Solutions must be found and a law governing surrogacy in the waiting for the past ten years must give birth to a statute. What we can do to promote inter-country adoptions must be allowed to be done in matters of surrogacy as well. A “secular” approach must come forth in matters of surrogacy as well.