By Kirti Meena
Introduction
The legislation has been trying to increase individual’s access to alternative means of reproduction, when they are unable to biologically reproduce due to any reason.[1] One such development in this regard, has been the Surrogacy (Regulation) Bill, 2019 (Hereinafter referred to as “Surrogacy Bill”). Surrogacy is a means through which an individual can have a child with the aid of another woman who bears the child and gives birth.[2]
The purpose of the bill which was purportedly to increase access to alternative means of reproduction has proved to be counter-intuitive, as it has rather restricted access to the service, for many like queer individuals, single parents, amongst others.[3] Additionally, the bill has been plagued with a host of other issues like the usage of vague terminology for the prerequisite to be a surrogate mother,[4] which has led to considerable confusion and uncertainty.
In this backdrop, the author submits that this bill is fraught with various infirmities and assessing those infirmities using the principles of legality of law as pronounced by Lon Fuller,[5] can be a very useful exercise. This is because these principles are wholesome in nature and are extremely effective in assessing the philosophical and legal consistency of any law.[6] Using this vantage point, the author argues that the Surrogacy Bill is inconsistent with the principles of legality of law.
Legality of Law entails eight distinct propositions – generality, publication, clarity, non-retrospectivity, no contradiction, compliance must not be impossible, consistency over a time frame and symmetry between law announced and administered – regarding procedure of law.[7] These eight principles form the generative condition for the existence of the law itself. Failure in compliance with any of these propositions results in not only a bad legislation, but also a failure of the legal system.[8]
In the following paper, the author argues that the Surrogacy Bill does not satisfy principle of generality of law, clarity of law, and the requirement that there should be no contradiction amongst laws. The absence of adherence to principles of Legality of Law by the Surrogacy Bill leads to unfairness and poses a challenge to the efficacy of the Surrogacy Bill.
Special Legislations: A Deviation from Generality of Law?
The first principle of Legality of Law is that the law should be general i.e. the law should be applicable to all members of the society, rather than a specific group of people or a few individuals.[9] Fuller propounds that the principle of generality traces its roots from the internal morality of law which is a quintessential feature of each law.[10] The inability of legislators to formulate general legislation will lead to blatant errors in the legal system. It is implied that lack of generality of law leads to unfairness[11] and unjust treatment of similar cases.[12]
The Surrogacy Bill allows only a married heterosexual couple[13] to have a child through surrogacy. It recognises the child through surrogacy as a biological child[14] of the married heterosexual couple. On the other hand, it has excluded various other groups of people such as the LGBTQ+ community, divorced people, widows/widowers, live-in couples and single people to obtain the benefits of the surrogacy process. [15]Therefore, legislators have created a special Surrogacy Bill for the benefit of a limited number of people. This reflects the bias of the legislators for those limited people whom they consider as a suitable parent that can possibly provide an apt environment for the growth. The bias of the legislators holds no water, in the light of, numerous researches which have proven that trans people[16] and single parents[17] can handle the responsibility of children very well and can be great parents. By making a “special surrogacy law”, which singles out some people on basis of sexual orientation and marital status, legislators have flouted the principle of generality which leads to unfairness.
Leads should be taken from the Juvenile Justice Act, 2015, a law governing the process of adoption, which fairs well on the generality principle. Juvenile Justice Act allows single as well as divorced people[18] and even uses neutral noun[19] to describe the eligibility of people who can adopt. This also provides an opportunity to the LGBTQ+ community to adopt, in addition to heterosexual married couples[20]. But the Surrogacy Bill has denied this opportunity of using scientific technology for having the biological children to the same group of people. It demonstrates the majoritarian enforcement of cultural norms such as heteronormativity and the heteropatriarchal family-form. Eventually, creating a situation of special treatment, for those who come within the ambit of this cultural norm, which is a by-product of deviation from generality. Hence, the Surrogacy Bill fails on the principle of generality which is the “first desideratum of a system for subjecting human conduct to the governance of rules”[21] in Fuller’s conception.
Contradiction in Law: A conundrum between what is applicable and what is not?
“Cross this river, but don’t get wet”- provided no other mechanism but to swim is available-leads to an enigmatic situation for the subjects of this command.[22] Contradiction in law creates a similar kind of situation for the subjects of law due to the incompatibility between the laws.[23] Fuller has advanced that there can be two different kinds of contradiction in law i.e. contradiction in the same law or contradiction between two laws.[24] These contradictions result in the failure of law to govern the conduct of the subjects as contradiction in law creates ambiguities or dilemmas regarding which law to follow.[25] An individual while following one law might be contravening the other law and as a result the individual has to bear the repercussions of it without any fault on their part. Fuller concluded that legislative carelessness ensuing into contradiction in laws leads to damaging the legality of law in such a manner which is hard to undo.[26]
Surrogacy, allows individuals and couples to have children, irrespective of their fertility condition. The Supreme Court has also recognised that some couples and individuals prefer surrogacy over adoption as it helps them to preserve a genetic connection with the child.[27] Hence, surrogacy has a noteworthy relevance as a means of reproduction.
The Surrogacy Bill, suggests a highly restrictive eligibility criteria i.e. married heterosexual couples,[28] which is contended to be in contradiction to Article 21 of the Constitution. There is no explicit mention of the right to reproductive autonomy under Article 21. But the significant shift in the right to privacy jurisprudence has expanded the ambit of Article 21 for an inclusion of the right to reproductive autonomy.[29] In Puttaswamy v Union of India,[30] the constitutional bench has categorically stated that “the liberty of procreation, the choice of a family life” are essential attributes of privacy as envisaged under Article 21. Any violation of the same amounts to an infringement of the right to privacy. An interpretation of Puttaswamy provides individuals the prerogative to determine the mode of parenthood, including surrogacy, irrespective of their social or economic milieu.[31]
In light of the aforementioned propositions, it can be deduced that the Surrogacy Bill has inevitably frustrated the option of surrogacy for people outside the restricted eligibility criteria. While, at the same time, Article 21 allows people beyond the restricted eligibility criteria to choose ‘any’ method of reproduction.[32] It sets an exemplary case for contradiction in the law as put forth by Fuller. Enforcement of the right provided under Article 21 leads to a violation of the Surrogacy Bill, while compliance with the Surrogacy Bill would amount to an infringement of Article 21. Thus, the Surrogacy Bill violates the principle of non-contradiction as propounded by Fuller.
Fuller has emphasised upon the crucial role played by the courts to resolve the incompatibilities between two laws.[33] There can be numerous ways to resolve the contradiction between the laws, but Fuller has underscored the solution which can resolve the dilemma of the citizen without injuring their interest.[34] Using a similar analogy, the contradiction in laws created by the Surrogacy Bill should be resolved by the courts in a manner which protects the interest of the people beyond the restrictive eligibility criteria in the best possible manner. The only alternative in front of the court to resolve the contradiction is to strike down the Bill as there is possibly no other means for a harmonious reading of the two laws.
Vagueness in Law: No one defies the law
Fuller considers clarity in laws as one of the most essential elements of legality of law. A law devoid of clarity is as good as a law not being promulgated, as the law is unable to guide the behaviour of its subjects.[35] Fuller zeroed in on the amplified responsibility of the legislature in ensuring conformity to the principle of clarity, as vague laws impact the overall efficacy of the legislation.[36] Vaguely promulgated law leads to a decline in the rule of law as it paves the way for arbitrariness and uncertainty, in addition to disrespect for law.[37] Even Fuller espouses the notion that the Courts should refrain in interpreting extremely vague statutes and should rather strike them down, as obscurity is an invincible impediment to legality.[38]
The Surrogacy Bill aims to prevent the exploitation of the surrogate mother and prohibits commercial surrogacy.[39] Hence, it prescribes a punishment of imprisonment along with fine,[40] if there is any contravention of this provision of the Bill. In this backdrop, the definition of a surrogate becomes one of the most pivotal provisions of the Surrogacy Bill. The Surrogacy Bill defines a surrogate mother as a “close relative” of the intending couple.[41] Yet the Surrogacy Bill does not define the term “close relative”, rather this term has been used in a broad manner. It has given rise to various speculations regarding the ambit of ‘close relative’. Since, the bill does not provide any parameters to judge the closeness of the relative, ‘close relative’ counts as a vague term. In doing so, the Bill deviates from the principle of clarity in law.
Transplantation of Human Organs Act (TOHOA), 1994, as a parallel to the concept of altruism as envisaged in Surrogacy Bill, allows organ donators to donate their organs only to their ‘near relatives’. TOHOA has categorically mentioned that ‘near relatives’ includes “spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter.”[42] An exhaustive definition of the crucial provisions ensures that the subject of law has clarity regarding what the law expects them to do. Additionally, it enhances the efficacy of the law, while achieving the aims which the legislator looks forward to achieve through the means of that legislation.
The term ‘close relative’ can be interpreted in numerous ways. The surrogate mother might be a distant relative as per the family tree, but the intending couple shares an extremely cordial bond with her. The intending couple may not deliberately flout the law but due to the vaguely drafted provisions, they might end up flouting the legislation. The intending couple could have to face severe repercussions i.e. imprisonment and fine despite no fault on their part.[43] Due to lack of clarity regarding the term ‘close relative’, families may coerce their daughter- in -law to become a surrogate mother for the daughter of the house. This ultimately reinforces the practice of exploitation of the surrogate. A vaguely drafted term ‘close relative’ leads them back to square one, raising two problems: severely impacting the efficacy of Surrogacy Bill and defeating the objective of prevention of exploitation of the surrogate mother.
The Surrogacy Bill fails on the parameter of clarity as conceptualised by Fuller and hence, falls prey to the shortcomings of vagueness in law.
Conclusion
Law is not merely a set of static rules, but an enterprise through which law is developed and moulded in a manner which can reasonably guide human action or behaviour. Similarly, Fuller’s eight principles of legality are not just a score card for an accepted legal system, but an account of how a law should work in a just manner which ensures fairness.
Surrogacy is a boon for all those people who want to have a biological child but cannot due to different reasons. A huge proliferation in the number of people using the mode of surrogacy for having biological children has been witnessed during the past decade.[44] The Surrogacy Bill was promulgated to regulate the booming surrogacy industry and to protect the interest of the surrogate mother. But, to utter dismay, the Surrogacy Bill limits the accessibility of surrogacy as a means of reproduction and does not address the concern regarding surrogate mothers sufficiently. The Surrogacy Bill does not adhere to the principle of legality of law, as propounded by Fuller, i.e. generality, clarity and non-contradictory. Thus, the Surrogacy Bill should be moulded, as per virtues of law in Fuller’s conception.
The author, Kirti Meena, is currently a law student at the National Law School of India University (NLSIU), Bangalore.
[1] The Assisted Reproductive Technology (Regulation) Bill, 2020 (passed by Lok Sabha, 14/09/2020); Surrogacy (Regulation) Bill 2019, (passed by Lok Sabha, 05/08/2019).
[2] Aparajita Amar and Arjun Aggarwal, The emerging laws relating Surrogacy: A procreational right for Single Parent, Transgenders and Foreigners, The SCC Online Blog, available at https://www.scconline.com/blog/post/2018/04/10/the-emerging-laws-relating-surrogacy-a-procreational-right-for-single-parent-transgenders-and-foreigners/ last seen on 01/12/2020.
[3] S. 2(g), Surrogacy (Regulation) Bill 2019, (passed by Lok Sabha, 05/08/2019).
[4] S. 4(iii)(b)(II), Surrogacy (Regulation) Bill 2019, (passed by Lok Sabha, 05/08/2019).
[5] Lon Fuller, The Morality of Law, 39 (Rev. Ed. 1969).
[6] Ibid.
[7] Supra 5 at 39.
[8] Ibid.
[9] Supra 5.
[10] Supra 5.
[11] Supra 5 at 47.
[12] Evan C Zoldan, Reviving Legislative Generality, 98 Marquette Law Review 625, 628 (2014).
[13] S. 2(g), Surrogacy (Regulation) Bill 2019, (passed by Lok Sabha, 05/08/2019).
[14] S.7, Surrogacy (Regulation) Bill 2019, (passed by Lok Sabha, 05/08/2019).
[15] Supra 2.
[16] E-scholarship, William Law, available at https://escholarship.org/content/qt3rp0v7qv/qt3rp0v7qv_noSplash_effb82ce37a6d67a6d58951ece0ff2a2.pdf?t=nsm5lg last seen on 25/11/2020.
[17] Dominic Schmuck, Single parenting: fewer negative effects of children’s behaviors than claimed, 18 Modern Psychological Studies 117, 123(2013).
[18] S. 57(3), Juvenile Justice Act, 2015.
[19] S.57, Juvenile Justice Act, 2015.
[20]S. 57(2), Juvenile Justice Act, 2015.
[21] Supra 5 at 46.
[22] Supra 5 at 69.
[23] Supra 5.
[24] Supra 5.
[25] Wibren van der Burg, Lon L. Fuller’s Lessons for Legislators, Erasmus Working Paper Series on Jurisprudence and Socio-Legal Studies, 5, Working Paper Number 14-01, Erasmus University Rotterdam (2014).
[26] Jay Ellis and Alison FitzGerald, The Precautionary Principle in International Law: Lessons from Fuller’s Internal Morality, 49(3) McGill Law Journal 779, 789 (2004).
[27] Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518.
[28] S. 2(g), Surrogacy (Regulation) Bill, 2019(passed by Lok Sabha, 05/08/2019).
[29] B.K. Parthasarthi v Government of Andhra Pradesh [2000] 1 ALD 199 and Puttaswamy v Union of India (2017) 10 SCC 1.
[30] (2017) 10 SCC 1 (hereafter ‘Puttaswamy’).
[31] Simran Aggarwal and Lovish Garg, The new surrogacy law in India fails to balance regulation and rights, The London School of Economics and Political Science, available at https://blogs.lse.ac.uk/humanrights/2016/11/23/the-new-surrogacy-law-in-india-fails-to-balance-regulation-and-rights/, last seen on 24/11/2020.
[32] Ibid.
[33] Supra 5.
[34] Supra 5.
[35] Robert Henle, Principles of Legality: Qualities of Law Lon Fuller, St. Thomas Aquinas, St. Isidore of Seville, 38 The American Journal of Jurisprudence 47, 58 (1994).
[36] Fuller (n1).
[37] Adam D Kamenstein, The Inner-Morality of Juvenile Justice: The Case for Consistency and Legality 18 Cardozo Law Review 2105, 2130 (1997).
[38] Supra 5.
[39] S. 35, Surrogacy (Regulation) Bill 2019, (passed by Lok Sabha, 05/08/2019).
[40] S. 38, Surrogacy (Regulation) Bill 2019, (passed by Lok Sabha, 05/08/2019).
[41] S. 4(iii)(b)(II), Surrogacy (Regulation) Bill 2019, (passed by Lok Sabha, 05/08/2019).
[42] S. 2(i), Transplantation of Human Organs Act, 1994.
[43] S.38 Surrogacy (Regulation) Bill, 2019 (passed by Lok Sabha, 05/08/2019).
[44] Manya Gupta and Shiromi Chaturvedi, The Indian Ban on Commercial Surrogacy, Women’s Policy Journal available at https://wpj.hkspublications.org/2020/06/19/the-indian-ban-on-commercial-surrogacy/#_edn2, last seen on 23/11/2020.
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