DEATH KNELL OF SURROGACY IN INDIA

Bollywood film star Sunny Leone and her husband Daniel Weber, both foreign nationals stated to be living in India, had publically announced the births of their biological sons, Noah Singh Weber and Asher Singh Weber born through surrogacy. In a statement, it was said "we chose to do surrogacy with a fertilised egg from Daniel's genes and my genes. Asher and Noah are our biological children and God sent us an angel surrogate to carry our boys until they were born". Film star Tushar Kapoor, as a single parent is the proud father of a baby boy and Karan Johar a film celebrity, is the doting father of twin children as a sole parent. All thanks to Surrogacy.

Bill No.257 of 2016 i.e. “Surrogacy (Regulation) Bill, 2016” was passed in the Lok Sabha on December 19. It proposes a complete ban on commercial surrogacy, restricting ethical altruistic surrogacy to legally wedded infertile Indian married couples only, married for at least five years. A certificate of proven infertility of either spouse or couple from a Medical Board is mandatory. Overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples are barred from commissioning surrogacy. Only close married blood female relatives, who must have borne a child, and is not an NRI or a foreigner, can be a surrogate mother once in a lifetime. Indian couples with biological or adopted children are prohibited to undertake surrogacy. Only medical expenses will be allowed to be paid. Commercial surrogacy, among other offences, will entail imprisonment jail term of at least ten years and a fine extending to rupees ten lakhs. Compensated gamete donation has been banned. Surrogacy clinics will require mandatory registration. National and State Surrogacy Boards shall advise, review, monitor and oversee implementation of the new law.

In January 2017, the Rajya Sabha Chairman referred this legislation, as introduced in the Lok Sabha, to the Standing Committee on Health and Family Welfare. This Parliamentary Committee by Report 102 presented on August 10, had recommended beneficial major sweeping changes. Major stake holders, experts, Government representatives of various Ministries and professionals lent their views with extensive interactions with the Committee. The changes recommended were laudable, practical, beneficial and harmonious to rights of parties but did not find favour in Parliament. Logic, reason rights of parents to gain from surrogacy failed.

Restricting 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. Right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood and 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” is a gross invasion of the right of privacy which is part of right to life under the Constitution. 

The Indian Council for Medical Research (ICMR), working under the Ministry of Health and Family Welfare, finalised the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, 2005. It stipulated that there shall be no bar to the use of ART by single women who would have all the legal rights and to whom no ART clinic may refuse to offer its services for ART. By anomaly, single men too could claim this right. These guidelines have not been rescinded till date.

Anomalous and inconsistent as it may seem, in the matter of Inter-Country adoptions, the Government has a diametrically opposite policy. It statutorily propagates fast-track inter-country adoptions from India for foreigners. The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) allows a Court to give a child in adoption to foreign parents irrespective of the marital status of such a person. The latest guidelines governing Adoption of Children, have streamlined Inter-Country Adoption procedures, permitting single parent adoptions with the exception of barring single male persons from adopting a girl child. However, parenthood via surrogacy is not allowed to single or foreign parents as persons entitled to equality.

Surrogacy in vogue for over past twelve years has been shut down overnight. Tripartite constitutional fundamental rights of stakeholders stand violated in the process. A right to reproductive autonomy and parenthood, as a part of a right to life of a single or foreign person, cannot be circumvented.

The possible Government logic banning foreign surrogacy to prevent its misuse, seems counterproductive.Barometers of domestic altruistic surrogacy will be an opportunity for corruption and exploitation, sweeping surrogacy into unethical hands in an underground abusive trade. Relatives will be generated. Surrogates will be impregnated in India and shifted to permissible jurisdictions with lax laws. The ends will defeat the means. Surrogacy will  still flourish with abandon. Sweeping it under the carpet will not help. Ignoring its prevalence cannot extinguish it at a stroke.