The link of the published article is : https://indianexpress.com/article/cities/chandigarh/surrogacy-ban-checks-balances-adoption-7977372/
AN INCHOATE SURROGACY LAW
BY ANIL MALHOTRA*
Surrogacy (Regulation) Act, 2021 (SRA) and ART (Regulation) Act, 2021 (ART), have come into force in India on 25 January 2022 for actual enforcement and implementation. Surrogacy shall now be available only to infertile Indian married couples and single widowed/divorced women. All other categories of persons including single men, foreign nationals and foreign couples have been excluded.
Anomalous and inconsistent as it may seem, in matter of inter-country adoptions, Ministry of Women and Child Development, has a diametrically opposite policy. It statutorily propagates inter-country adoptions from India for foreigners. Juvenile Justice (Care & Protection of Children) Act, 2015 (JJA), allows a Court to give a child in adoption to foreign parents irrespective of marital status of a person. Latest Adoption Regulations, 2017 have streamlined inter-country adoption procedures, thereby permitting single parent adoptions with exception of barring single male persons from adopting a girl child. Provisions of Transgender Persons(Protection of Rights)Act,2019, also fall foul of ART,2021.PandoraBox of litigations will now open in Supreme Court.
Commercial surrogacy in vogue for foreigners for past over ten years, has been shut down overnight and now Surrogacy for foreigners is completely banned in SRA 2021. Even medical professionals, can no longer practice surrogacy for foreign parents, thereby imposing an unreasonable restriction. Surrogate mothers too may claim deprivation of a right of livelihood. All these diverse rights have been curtailed in an undemocratic fashion. 27 million infertile couples are in lurch.
ART 2021, proposes a complete ban on commercial surrogacy, restricting ethical altruistic surrogacy to legally wedded infertile Indian married couples. Husband must be between 26 to 55 years of age and wife must be between 23 to 50 years of age. Certificates of proven infertility/expert medical reports of either spouse or of intending couple from a District Medical Board is mandatory. Overseas Indians, foreigners, unmarried couples, single parents, live-in partners, and LGBTQIA are barred from commissioning surrogacy. Surrogate cannot be an NRI or a foreigner. Indian couples with biological or adopted children are prohibited to undertake surrogacy. In process of surrogacy, only medical expenses will be allowed to be paid and no other funds can be given or spent. Commercial surrogacy, among other offences, will entail imprisonment for a term of at least ten years and a fine extending to rupees ten lakhs. All surrogacy clinics will require mandatory registration under new law. National and State Surrogacy Boards shall advise, review, monitor and oversee implementation of new law. Hence, there is a complete clampdown on surrogacy.
Possible Government logic banning foreign surrogacy to prevent its misuse, seems counterproductive. Rich Indian commissioning parents can still exploit vulnerable surrogate mothers through watertight contracts. Barometers of domestic altruistic surrogacy, will be a vent for corruption and exploitation, sweeping business of surrogacy into unethical hands in an underground abusive trade of black market. Ends will defeat means. Commercial surrogacy may still flourish without abandon.
Permitting limited conditional surrogacy to married Indian couples and disqualifying other persons on basis of nationality, marital status, sexual orientation or age, does not qualify test of equality . Right to life, enshrines right of reproductive autonomy, inclusive of right to procreation and parenthood, which is not within domain of State. It is for person and not State to decide modes of parenthood. It is prerogative of person(s) to have children born naturally or by surrogacy in which State, constitutionally, cannot interfere. Moreover, infertility cannot be compulsory to undertake surrogacy. A certificate of “proven infertility” or expert medical reports, are a gross invasion of right of privacy which is part of right to life under Article 21 of Constitution. View of Government cannot be super imposed over will of people.
2018 judgment of Supreme Court in Shafin Jahan recognizes right to choose one’s life partner as an important facet of right to life holding that social approval of intimate personal decisions should not be basis for identifying them. Supreme Court in Puttaswamy held that a promise of a right of privacy is embedded in Article 21 of Constitution. In Navtej Johar, Section 377 of Indian Penal Code which criminalised consensual homosexual relationships was read down and declared unconstitutional. Supreme Court liberalizes equality and equal protection of laws whilst Legislature restricts it
Rational approach would be to control and coordinate by a selective screening process of checks and balances. A similar parallel exists in matters of adoptions. CARA, a statutory body under JJA 2015, functions smoothly to regulate all adoption matters.. Law steps in to check, but not to bar eligible persons from adopting children. A similar balanced approach in matters of surrogacy requires serious introspection. Surrogacy in vogue for over a decade cannot be stamped out of existence by law. Its practice ought to be regulated and coordinated, without offending equality of law and equal protection of laws to persons and not only citizens in a democratic society.
However, with fast-paced advancement of medical science, and evolution of understanding of society on what it means to have a family, ART and SRA 2021 have been enacted in opposite directions. At this crucial juncture of intersection of medical science and law, interests of various stakeholders need to reconcile. Government mustmake a restrictive and regulatory law ,but not banish surrogacy. There can be no dictatorship in surrogacy.
*Anil Malhotra - Author, Legal Commentator & Analyst, Alumni of SOAS, University of London Senior Partner, Malhotra and Malhotra Associates. email@example.com.