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An Inequitable Surrogacy Law

This Article is authored by Advocate Anil Malhotra.

On November 4, 2015, surrogacy for foreign nationals in India had been banned pursuant to a mandate issued by the Ministry of Home Affairs. On December 1, 2021, the Parliament of India, Lok Sabha House of people, passed by a voice vote the Assisted Reproductive Technology (Regulation) Bill, 2021, (ART Bill 2021), after a detailed discussion among all parties in the Lok Sabha House. This Bill sought to regulate and supervise assisted reproductive technology clinics and banks, prevent misuse of the technology, and promote ethical practice of the services. On 8 December 2021, both the ART Bills 2021 and Surrogacy Regulation Bill, 2020, with amendments were passed by the Rajya Sabha i.e. upper House of Parliament. Upon consent of the President of India on 20 and 25 December 2021, and notification in the gazette of India on 20 and 25 December 2021, the Surrogacy (Regulation) Act, 2021 (SRA) and the ART (Regulation) Act, 2021 (ART) will come into force upon notification. The SRA though amended, has now proposed that surrogacy shall be available only to infertile Indian married couples and single widowed/divorced women, but all other categories of persons including single men, foreign nationals and foreign couples have been excluded.

Anomalous and inconsistent as it may seem, in the matter of inter-country adoptions, the Ministry of Women and Child Development, has a diametrically opposite policy. It statutorily propagates inter-country adoptions from India for foreigners. JJA 2015,allows a Court to give a child in adoption to foreign parents irrespective of the marital status of a person. The JJA 2015, also authorises State Governments, to recognise one or more of its institutions as specialised adoption agencies for placement of orphan, abandoned or surrendered children for adoption in accordance with the guidelines notified by CARA. The latest guidelines governing adoption of children notified on January 4, 2017, known as the Adoption Regulations, 2017 have streamlined inter-country adoption procedures, thereby permitting single parent adoptions with the 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.Pandoras Box of litigations will now open in Supreme Court.

Commercial surrogacy in vogue for foreigners for the past over ten years, has been shut down overnight even though the ART Bill 2014 (now 2019/2020/2021), was then open for public comment till November 15, 2014. However, much has changed since then, and now Surrogacy for foreigners is completely banned in SRA 2021. Tripartite constitutional fundamental rights of stakeholders stand violated in the process. Commissioning foreign parents as persons enjoy the protection of the equality of law and the right to life under Articles 14 and 21 of the Constitution, which cannot be taken away except according to the procedures established by law. The right to reproductive autonomy and parenthood, as a part of right to life of a foreign person, cannot be circumvented by an executive Order, especially when Parliament by law already permits parenthood by inter-country adoptions from India by foreigners. The SRA 2021, proposes to completely ban surrogacy for foreigners in India except PIOs/OCIs. 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 the lurch.

The ART 2021, proposes a complete ban on commercial surrogacy, restricting ethical altruistic surrogacy to legally wedded infertile Indian married couples. The husband must be between 26 to 55 years of age and the wife must be between 23 to 50 years of age. A certificate of proven infertility/expert medical reports of either spouse or of the 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. Only limited women in the category of close family relatives are allowed to be surrogates. The surrogate cannot be an NRI or a foreigner. The close relative can only be a surrogate mother once in a lifetime. Indian couples with biological or adopted children are prohibited to undertake surrogacy. In the 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. Compensated gamete donation has also been banned. All surrogacy clinics will require mandatory registration under the new law. National and State Surrogacy Boards shall advise, review, monitor and oversee implementation of the new law. Hence, there is a complete clampdown on surrogacy.

The 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 the business of surrogacy into unethical hands in an underground abusive trade of black market. The ends will defeat the means. Commercial surrogacy may still flourish without abandon.

Permitting limited conditional surrogacy to married Indian couples and disqualifying other persons on the basis of nationality, marital status, sexual orientation or age, does not appear to qualify the test of equality or of being a reasonable classification, satisfying the object sought to be achieved. Further, the right to life, enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood, which is not within the domain of the State. It is for the person and not the State to decide modes of parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in which the 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 the right of privacy which is part of right to life under Article 21 of the Constitution. Democratically, all perspectives must be considered before opinions are voiced, conclusions are drawn, and decisions are taken or announced. The view of the Government cannot be super imposed over the will of the people.

The 2018 judgment of the Supreme Court in Shafin Jahan (AIR 2018 SC 1933), recognises the right to choose one’s life partner as an important facet of the right to life holding that social approval of intimate personal decisions should not be the basis for recognising them. A nine Judge Bench of the Supreme Court in K.S. Puttaswamy,(2019 (1) SCC 1) held that a promise of a right of privacy is embedded in Article 21 of the Constitution. In Navtej Johar (AIR 2018 SC 4321), Section 377 of the Indian Penal Code, 1860 which criminalised consensual homosexual relationships was read down and declared unconstitutional. The Supreme Court liberalizes equality and equal protection of laws whilst the Legislature restricts it

The 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 the JJA 2015, functions smoothly to regulate all adoption matters. A regulated, defined, and effective procedural mechanism rules out all possible unapproved adoptions. Law steps in to check, but not to bar eligible persons from adopting children. Hence, 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 the fast-paced advancement of medical science, and evolution of understanding of society on what it means to have a family, the ART and SRA 2021 have been enacted in the opposite direction. Despite the development of various ART procedures and demand for surrogacy, most of this benefit remains outside the purview of legally binding regulatory frameworks in India. At this crucial juncture of the intersection of medical science and the law, interests of various stakeholders need to reconcile. The commissioning couples irrespective of marital status, nationality, or religion, besides the donors, surrogates, the medical fraternity, and the society, often find themselves at par, but at variance and in conflict with law. The consideration of the overall society as a stakeholder is critical, and this is why an appropriate regulatory law needs to be put in place. It is in this perspective that the role of regulatory frameworks becomes imperative. Hence, it is for the Government to make a restrictive and regulatory law and not banish surrogacy. Thus, there can be no dictatorship in surrogacy.


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