By Ritika Goyal
“Reproductive freedom is not just the ability not to have a child through birth control. It’s also the ability to have one if and when you want.”
In today’s world where medical and technological advancements have come to the rescue of infertile couples, single parents, homosexual couples, providing them with an opportunity to complete their family, it looks as if the Indian Government has taken a regressive approach by trying to impose unnecessary conditions and restricting the options available to the people. Recently, Surrogacy Regulation Bill, 2019 (“the Bill”) was passed in Lok Sabha on 5th August 2019 and an in depth analysis of the bill shows that it is arbitrary and irrational in nature, as will be discussed in the paper.
The Statement of Objects and Reasons of the Bill shows that it intends to curb the unethical practices in the area of surrogacy, to prohibit the potential exploitation of surrogate mothers and protect the rights of children born through surrogacy. There have been instances where surrogates were illegally confined,[1] or they did not receive the promised monetary compensation, or the intended parents had abandoned the child if s/he suffered from genetic abnormalities[2] or on the basis of sex. .In some cases, the parents also used the child for organ transplant for their sick child or refused to take child on the grounds that they were now divorced. [3]
While the author acknowledges that in the light of current events, it is more than necessary to enact such a Bill, however, rather than providing protection to the surrogate mother, intended parents and surrogate child through regulatory framework, it has resulted in undermining the reproductive autonomy of the people and created more hurdles for surrogates and intended parents. It is a true case of missed opportunity. Although there are ongoing debates about the ethical, philosophical and jurisprudential questions relating to commercial surrogacy, the scope of this article is limited to addressing the key issues and practical problems that might arise while implementing the Surrogacy Regulation Bill, 2019 if passed, and discussing how some of the provisions of the Bill infringe upon the fundamental rights of the people.
Assisted Reproductive Technology (Regulation) Bill, 2017:
Firstly, many of the experts including Dr. Kamini Rao, Member, National Advisory Committee for Drafting of Guidelines on Assisted Reproductive Technology have argued that the Surrogacy bill is redundant without Assisted Reproductive Technology (Regulation) Bill, 2017.[4] The objective of this Bill is to prevent misuse and provide for safe and ethical practice of assisted reproductive technology services. Assisted Reproductive Technology means “all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive tract of a woman”.[5] This Bill has been pending in the Parliament since 2008. The same issue has been pointed out by 102nd Report of Rajya Sabha’s Department-Related Parliamentary Standing Committee on Health and Family Welfare and Rajya Sabha’s Select Committee on the Surrogacy (Regulation) Bill, 2019[6] too which have strongly recommended that surrogacy involves highly technical, scientific and medical aspects, which would appropriately be addressed through ART Bill. and the Surrogacy Bill won’t achieve its intended purpose unless these techniques and the ART clinics are regulated first.
Unreasonable restrictions on eligibility of intended parents:
Section 4(iii)(c) of the Bill lays down the condition for the grant of eligibility certificate to the parents. These are:
- the age of the intending couple is between 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification;
- the intending couple are married for at least five years and are Indian citizens;
- the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier.
According to section 2(g) of the Bill, the couple mentioned above means “the legally married Indian man and woman above the age of 21 years and 18 years respectively.” By excluding LGBTQ community, live-in couples, single parents, divorced or widowed people, this creates discrimination on the basis of sexual orientation and marital status of the people, thereby infringing on the Right to Equality and Article 21( Right to Life) guaranteed to them by the Constitution of India.[7] This provision induces the heteronormative idea of what a family is. It is in direct contravention to Navtej Singh Johar v. Union of India,[8] where the Court held that “discrimination on the basis of sexual orientation was violative of the right to equality, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.”
Also, the Supreme Court in Indra Sarma v. V.K.V. Sarma,[9] has stated that “Live-in or marriage like relationship is neither a crime nor a sin. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal” and therefore, discrimination on basis of both marital status and sexual orientation is violative of their fundamental rights.
The Bill excludes the already stigmatized groups like LGBTQ+, live-in couples, single parents and takes away their rights, all this shows that while the Supreme Court focuses on the ‘Doctrine of Progressive Realization of Rights’ and has stated that “there must not be any regression of rights and that in a progressive and an ever-improving society, there is no place for retreat, the society has to march ahead”,[10] the Government is busy taking backward approach.
It is also to be noted that sections 7 and 8 of the Hindu Adoption and Maintenance Act, 1956 allow single and divorced women, as well as widows to adopt a child. However, this bill criminalises their reproductive autonomy to conceive a child through surrogacy It is pertinent to note that right to make reproductive choices including procreation and subsequently raising children comes within the ambit of Article 21 of the Constitution of India. Restricting reproductive choices of women is similar to disrespecting their right to privacy, dignity and bodily integrity. [11]
Irrational ‘five-year’ clause:
Besides the eligibility certificate, the intended parents have to provide certificate of proven infertility too, which will be given only when there is “inability to conceive after five years of unprotected coitus or other proven medical condition preventing a couple from conception.”
This provision is in contravention to World Health Organisation’s definition of fertility which states that “it is a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.”[12] One of the reasons cited for the insertion of 5 year clause is that the couples should try other alternatives too such as adoption.[13] Some parents prefer surrogacy over adoption because it helps them to preserve genetic connection to the child and to impose unnecessary restrictions on the accessibility of this option on the pretext that first other options should be explored is inhumane. In Manji Yamada v. Union of India,[14] the Supreme Court too acknowledged this and stated that in cases where the parents wish to have a biologically related child, surrogacy is the only available option.
Not only this, but the 5 year clause will also create obstructions in the family life of people who are getting married at a late age, they will also have to wait for 5 years. There are other medical conditions too such as uterine structural problem in which surrogacy might be needed because women might conceive but be unable to carry a child during the period of the pregnancy, i.e., the period of nine months following the conception. Multiple miscarriages, diseases like diabetes, hypertension, and kidney diseases may also affect successful pregnancy. All these medical conditions need to be considered in the proposed Bill as these conditions fall outside the scope of ‘infertility’ and thus prohibits many women from exercising surrogacy as an option. The Bill suffers from various inadequacies and has severely restricted the option of surrogacy to select few.
The author is a third year B.A.LLB student at National University of Study and Research in Law, Ranchi (NUSRL).
[1] Thomson Reuters, “Wombs for rent: Indian surrogacy clinic confines women in ‘terrible conditions”, say police’ (June 19, 2017) available at https://www.reuters.com/article/us-india-women-surrogacy-iduskbn19a1kl.
[2]Stephanie Pacheco, “Abandoned Babies Reveal Inherent Problems of Surrogacy” (Truth and Charity) available at https://truthandcharityforum.org/abandoned-babies-reveal-inherent-problems-of-surrogacy/..
[3] Dr. Ranjana Kumari , “Surrogate Motherhood Ethical or Commercial”, Centre for Social Research, (Page 11, Para 5) available at https://wcd.nic.in/sites/default/files/final%20report.pdf.
[4] Parliamentary Standing Committee on Health and Family Welfare, “One Hundred Second Report on The Surrogacy (Regulation) Bill, 2016” (August 10, 2017), available at http://164.100.47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf.
[5] See Section 2(c) of The Assisted Reproductive Technology (Regulation) Bill, 2017.
[6] Report of the Select Committee on the Surrogacy (Regulation) Bill, 2019, available at https://www.prsindia.org/sites/default/files/bill_files/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf.
[7] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[8] (2018) 10 SCC 1.
[9] (2013) 15 SCC 755.
[10] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[11] Suchitra Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
[12]World Health Organisation, “Sexual and Reproductive Health”, available at https://www.who.int/reproductivehealth/topics/infertility/definitions/en/.
[13] Parliamentary Standing Committee on Health and Family Welfare, “One Hundred Second Report on The Surrogacy (Regulation) Bill, 2016” (August 10, 2017), available at http://164.100.47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf.
[14] (2008) 13 SCC 518.
The Journal of Indian Law and Society 