By Ritika Goyal
Restriction on the eligibility criteria of surrogate mother:
According to section 4(iii)(b)(II) of the Bill:
“no person, other than a close relative of the intending couple, shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act.”
This provision will create a dearth of surrogate mothers and will make surrogacy very difficult. Infertility, besides being a major gynaecological problem, has its socio-cultural aspects too. Issues such as availability and accessibility of reproductive health are still considered taboo and not openly discussed in Indian families. Due to this attached stigma, it will be uncomfortable for the couple to look for a surrogate within the family. Studies have shown that infertility is associated with changes in self concept, change in status within family and great mental distress.[1] It often leads to taunting, stigmatization, physical and verbal abuse, domestic violence, harassment and subordination in the family. In a society where women still have to walk around with strap-ons and fake tummies to project themselves as pregnant because they can’t tell their family that they have employed a surrogate owing to familial pressures,[2] the provision of ‘close relative’ is inconsiderate. The Rajya Sabha’s Select Committee[3] has also recommended that the term “close relative” potentially restricts the availability of surrogate mothers and may affect the genuinely needy persons, therefore it should be amended to “willing woman”. Moving forward, the close family connection between the surrogate mother and the child increases the probability that they are put into unpleasant situations where they have to encounter each other on repeated occasions, this might create emotional turmoil in the lives of all the people involved in this procedure especially the surrogate mother.[4] This is why all the precautions are taken to restrict the development of emotional bond between the surrogate and the child and it is usually preferred that the surrogate is a stranger. [5]
Due to the nature of family relationships, there is increased probability that this relationship might be misused and women of the family are unduly influenced to become surrogates. For instance, “If a daughter-in-law is forced to become a surrogate for the daughter of the family, and she may not be able to say no, this leads to exploitation.”[6] Here, it is important to refer to Article 14 of the Constitution which states that the when a classification is made between different groups, then it must be founded on intelligible differentia and that the differentia must have a rational relation to the objects sought to be achieved by the Act.[7] The classification permitting only ‘close relatives’ as surrogates has no reasonable nexus with the object of the Act that is to prevent exploitation of the surrogates and increases the likelihood of exploitation as shown above. Since the classification has no rational basis, this provision is arbitrary in nature.[8]
Not only this, but the Act fails to define ‘close relative’ making it ambiguous and incapable of being interpreted. If a word in the provision is so wide and vague that it is difficult to define or limit their scope, then it can struck down in its entirety as held by the Court in State of Bombay v. F.N.Balsara.[9] Other conditions laid down by the Bill that make women eligible to become a surrogate mother are: she must be married, have a child of her own and must be between the age of 25-35 years of age. Also, no women shall act as a surrogate more than once in her lifetime.[10] Such strict criteria will result in the unavailability of surrogate mothers and undermine there productive freedom of women which has been recognised as one of the fundamental rights by the Supreme Court in Devika Biswas v. Union of India[11]. It has emphasized the need to respect and protect the reproductive rights of a person including the capability to reproduce and the freedom to make informed, free and responsible decisions about their reproductive behaviour.
This has also been recaptulated by the Bombay High Court in its Own Motion v. State of Maharshtra,[12]where the Judges held that the right to decide whether or not to get pregnant and stay pregnant is a woman’s decision; since pregnancy has profound effects on the health, mental well-being and life of a woman, the right to control her own body, fertility and motherhood choices should be left to her alone. In Puttaswamy case,[13] too, the same principle was reiterated that women have autonomy and control over her body.“
When we compare these restrictions with the Acts of other countries like Netherlands (Dutch Society of Obstetrics and Gynaecology Guidelines), United Kingdom (Surrogacy Arrangements Act, 1985)or South Africa (Children’s Act, 2005), we find that no such restrictions have been placed.
Other Relevant Issues:
Lastly, the concept of consent for abortion in surrogacy procedures is a very tricky one. A surrogate mother was allowed to terminate the pregnancy by the Bombay High Court[14] when the fetus had developed multiple cardiac abnormalities, after taking consent from the intended parents. However, section 3(vi) of the Bill only talks about the consent of the surrogate mother and the approval of the appropriate authorities. The intended couple has no say in the consent to abort. There is a need to consider instances where the intended parents and surrogates disagree over the abortion. A plain reading of the provision implies that the consent of surrogate supersedes the consent of intended parents as the consent of parents is not required and therefore, in case of disagreement, the intended parents will be forced to raise the child. In another case,[15] the issue came up before the Court where the grandmother wanted to go ahead with surrogacy procedure after the son had died and the daughter-in-law had withdrawn the consent. This case throws light on issues such as, whether the intended parents’ consent can be withdrawn after the implantation of the embryo till the surrogacy procedure has been completed, or what happens in case of divorce where one of the intended parents withdraw his/her consent during the ongoing surrogacy procedures, whether the fetus can be aborted or not, or if the intended parents withdraw the consent, can the surrogate mother continue with pregnancy and bear responsibility for the children’s care after birth, are still to be resolved.
There is also uncertainty as to the rights of children born via surrogacy to know about their own biology and heredity. However, the Court is clear on the issue that a woman cannot be discriminated against, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy.[16] Also, if this Bill is passed then commercial surrogacy will be completely banned in India. This raises a big question on the future of surrogacy technique that whether adequate surrogates will be available for altruistic surrogacy prepared to go through excruciating pain to give birth to another’s child without expecting anything in return.
The author is a third year B.A.LLB student at National University of Study and Research in Law, Ranchi (NUSRL).
[1] Meghana Joshi, “’Correcting the Reproductive ‘Impairment’: Infertility Treatment Seeking Experiences of Low Income Group Women in Mumbai Slums” Sociological Bulletin, Vol. 57, No. 2 available at https://www.jstor.org/stable/23620785.
[2] The Times of India, “An interesting fact came up related to surrogacy in Ahmedabad” (26 April 2012).
[3] 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.
[4] N Lamba, V Jadva, K Kadam, and S Golombok, “The psychological well-being and prenatal bonding of gestational surrogates” Human Reproduction, Vol. 33, No. 4, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5989605/.
[5] Ibid.
[6]Hindu BusinessLine, “Lok Sabha passes Surrogacy Bill,” (December 19, 2018) available at https://www.thehindubusinessline.com/news/national/lok-sabha-passes-surrogate-bill/article25781949.ece.
[7] State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
[8] K Thimappa v. Central Board of Directors, (2001) 2 SCC 259.
[9] AIR 1951 SC 318.
[10] Refer to section 4(iii)(b) of the Bill.
[11] (2016) 10 SCC 726.
[12] 2017 CriLJ 218.
[13] (2017) 10 SCC 1.
[14] News18, ‘Surrogate Mother Gets Bombay HC Nod to Abort 24-week Pregnancy’ available at https://www.news18.com/amp/news/india/surrogate-mother-gets-bombay-hc-nod-to-abort-24-week-pregnancy-1985705.html
[15] Times of India, ‘Couple wants to go ahead with surrogacy process to have dead son’s child, moves HC’ available at https://m.timesofindia.com/city/mumbai/couple-wants-to-go-ahead-with-surrogacy-process-to-have-dead-sons-child-moves-hc/amp_articleshow/68516501.cms
[16] Hema Vijay Menon v. State of Maharashtra, 2015 SCC OnLine Bom 6127.
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