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Surrogacy, Inequality and The Law

This Article is authored by Advocate Anil Malhotra.

Same sex Danish couple badminton league legends Christinna and Kamilla with their daughter Molly, is in the news exhibiting normal parenthood, whilst India battles the issue of surrogate parenthood. A 23 member Select Committee of the Rajya Sabha heard suggestions and in a patchwork report recommends only Indian couples, single, widowed or divorced women eligible for surrogacy. Single men, same sex couples or foreigners are not even in the zone of consideration for surrogacy. A surrogate must be a married women. The couple seeking surrogacy will have to provide compelling conditions for availing of surrogacy. Sad but true. Disparity prevails defying equality of sexes.

The 2018 judgment of the Supreme Court in Shafin Jahan Vs. Asokan 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 held that a promise of a right of privacy is embedded in Article 21 of the Constitution. In Navtej Johar, Section 377 of the Indian Penal Code 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

As of now the Ministry of Health and Family Welfare prohibit or debar single persons or unmarried couples from commissioning surrogacy in India. Under the Surrogacy (Regulation) Bill, 2019, surrogacy is proposed to be confined to only infertile Indian married couples with atleast five years of marriage besides proven infertility and commercial surrogacy has been declared illegal. All unmarried or single persons and foreigners, have been declared ineligible. There is no object for this classification with the purpose to be achieved and persons inter-se have been discriminated. Married and un-married persons cannot be treated as a class apart, particularly when for the purposes of inter-country or in-country adoptions under the Adoptions Regulation, 2017, any prospective adoptive parents irrespective of marital status and whether or not he/she has a biological son or daughter can adopt a child. The only exception to it is that a single male shall not adopt a girl child, though a single female can adopt a child of any gender.

It may be argued that this unreasonable classification in Surrogacy is violative of mandate of the Constitution of India, discriminating against persons on the grounds of marital status, nationality and rights of procreation as they have no nexus with the object sought to be achieved. It directly curtails and interferes with “the right of reproductive autonomy” which is a facet of the “right of privacy” under Article 21 of the Constitution advocating the right to life. Persons, whether citizens or non-citizens cannot be treated differently for matters of parenthood, whether to be achieved by Surrogacy or by adoptions. No reasons, justification, logic or explanation is forthcoming as to why single persons or unmarried couples or foreigners have been debarred and excluded from commissioning surrogacy in India when such persons are allowed inter-country adoptions under the Adoption Regulation, 2017. There cannot be different parameters for the same ultimate purpose of achieving parenthood, be it by Surrogacy or by adoptions None of the grounds made out in the Medical Visa Regulations, 2012 and the 2019 Bill justify or validate this arbitrary exclusion and unfounded ineligibility of single persons or unmarried couples and foreign nationals who have been debarred from even applying for visas to India even though the ICMR Guidelines, earlier Bills, and Law Commission Report did not contemplate any such restrictions. Moreover, the Adoption Regulation, 2017 duly notified by the Government of India and made under the Juvenile Justice (Care and Protection of Children) Act, 2015 clearly stipulates the policy of the Government of India of permitting single parents irrespective of nationality or marital status to adopt a child of any gender with the only exception that a single male shall not be eligible to adopt a girl child.

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. Central Adoption Resource Agency (CARA), a statutory body under the Juvenile Justice Act 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.


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