RESTRICTIVE SURROGACY DILEMMA

The “Surrogacy (Regulation) Bill, 2016” has surfaced in public domain and was reported to have been tabled in the Indian Parliament recently. It states that “there have been reported incidents of unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and import of human embryos and gametes”. It reports that due to lack of legislation to regulate surrogacy, it “has been misused by the surrogacy clinics which leads to rampant commercial surrogacy and unethical practices”. Supporting data or details have not been quoted.

The new Bill proposes a complete ban on commercial surrogacy, restricting ethical altruistic surrogacy to legally wedded infertile Indian married couples only, who have been married for at least five years. 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 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 gay couples are barred from commissioning surrogacy. Only a close married blood relative, who must have herself 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 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.

In the Preamble of the Constitution, the people of India have resolved to constitute India as a sovereign, socialist, secular, democratic republic and secure justice, liberty, equality and fraternity. Article 14 of the Constitution guarantees equality before law and equal protection of laws to all persons. Likewise Article 21 guarantees protection of life and personal liberty of all persons. The decision of the Union Cabinet does not appear to be in tandem with the mandate of the people and the Constitutional protections. 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 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, warranting interference of a fundamental right. 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 Article 21 of the Constitution. Democratically, all perspectives must be considered before opinions voiced, conclusions drawn and decisions taken or announced. The view of the Government cannot be super imposed over the will of the people.

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, after extensive public debate all over the country from all stake holders. In chapter three, relating to Code of Practice, Ethical Considerations and Legal Issues, it had been 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. Likewise, there was no legal bar on an unmarried woman going in for Artificial Insemination with donor semen (AID) and a child born to a single woman through AID would be deemed to be legitimate. By anomaly, single men too could claim this right. These guidelines have not been rescinded till date.

Successive draft ART (Regulation) Bills in 2008, 2010 and 2013, had reportedly proposed that ART in India would be available to all, including single persons and foreign couples. However, successive draft ART Bills of 2014 and 2016, are stated to restrict surrogacy to Indian married infertile couples only and even persons of Indian Origin, Non Resident Indians as also Overseas Citizen of India have been debarred from commissioning surrogacy in India. These Bills do not even find any mention.

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 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. It was notified and implemented from 15 January 2016, after being passed by Parliament and approved by the President. The JJ Act also authorises State Governments to recognise one or more of its institutions or voluntary organisations as specialised adoption agencies for the placement of orphan, abandoned or surrendered children for adoption, in accordance with the guidelines notified by the Central Adoption Resource Agency (CARA). The latest guidelines governing Adoption of Children notified on 17 July 2015, have streamlined Inter-Country Adoption procedures, thereby permitting single parent adoptions with the exception of barring single male persons from adopting a girl child. Parenthood for single persons or foreigner couples by adoptions and surrogacy has thus different inconsistent barometers and a conflict of parental rights. This is even though Parliament approves of adoption of children by foreigners, but sadly, approval for surrogacy does not find favour in proposals of executive or legislative hands.

Surrogacy in vogue for over past ten years has been shut down overnight. Tripartite constitutional fundamental rights of stakeholders stand violated in the process. Commissioning foreign and single 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. A right to reproductive autonomy and parenthood, as a part of a right to life of a single or foreign person, cannot be circumvented, especially when Parliament by law already permits parenthood by inter-country adoptions from India by single persons or foreigners as couples. Even medical professionals can no longer practice surrogacy for foreign parents, thereby imposing an unreasonable justification. Surrogate mothers too may claim deprivation of a right of livelihood. All these diverse rights have been curtailed in an undemocratic fashion as codified law is yet to follow.

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 may still flourish with abandon. Sweeping it under the carpet will not help. Ignoring its prevalence cannot extinguish it at a stroke.

India, having kindled the fire of surrogacy, now cannot sit back and turn a blind eye. Considering that the commissioning mothers may be Indian nationals whose lives and safety may be at grave risk, there is a dire need for enactment of a wholesome law enveloping all current societal practices associated with surrogacy. If by an existing law made by 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. Ills of inter-country adoptions of Indian children to foreign jurisdictions were resolved by a strict regime of inter-country adoption guidelines, which over years have acquired a statutory status. Likewise, the proper approach would be to regulate the practice by a clear codified law in tandem with what has become a societal practice. Persons, citizens or foreigners will not matter. The appropriate and desirable method would be to create a mechanism to judge the 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 Central Adoption Resource Agency (CARA), which is now a statutory body, is the ideal example to cite in support. A different institution can be created to legally regulate surrogacy as well. We cannot shut our thinking simply because of the problems. Solutions must be found and a democratic law governing surrogacy for which we have been waiting for the past ten years must give birth to a statute. An unjust proposed law cannot arbitrarily stamp out and abort a determination process of the rights of privacy and reproductive autonomy of persons.