This article has been written by Mridul Tripathi, from Vivekananda Institute of Professional Studies. This article is a critique of the Surrogacy Regulation Bill, 2019 and is an attempt to question its constitutional validity.

Introduction

A concept as old as time itself, surrogacy today is one of the most controversial topics in India. The current Bill that is lying with the Standing Committee in Rajya Sabha contains such regressive laws that if it gets the assent of the President, it would definitely lead to violation of the Constitutional provisions.

The Bill, if enforced, would flush the women’s rights down the drain. It does not only contain regressive laws when it comes to women but is also discriminatory towards other sections of Indian society. It cannot be denied that the provisions related to commercial surrogacy were abused in India. Therefore, the legislature has tried to prove its bona fide intent by stating that the current bill is an attempt to rectify the vices generated in society by previous laws.

In this article, the author has tried to analyse whether such reprehensive and strict provisions are necessary to be enforced to curb the abuse of laws.

Past legislations

Here is a brief timeline of the past efforts made by the legislature to regulate surrogacy in India:

• First attempt: ICMR in 2005 came up with ART (assisted reproductive technology) Regulation. It contained provisions that had guidelines for regulation, supervision and accreditation of ART Clinics in India. 
• ART BILL: Introduced in 2008, 2010 and subsequently 2014, none of them were passed in the Parliament. The bill was on legalising commercial surrogacy but had various drawbacks such as no insurance cover at all to the surrogate etc. 
• Law Commission’s Report of 2009: The concept of ‘altruistic surrogacy’ was suggested to be included in the laws.
• In 2015, the government brought certain changes to the rules and a partial ban on surrogacy was enforced. The foreigners were banned from hiring surrogates in India. This decision was taken relying heavily on the 228th report of the Law Commission of 2009 that suggested a complete ban on commercial surrogacy.
• In 2016, the Parliamentary Standing Committee on Health Family Welfare suggested a complete ban on commercial surrogacy and recommended altruistic surrogacy amongst other provisions. 
• Based on the Law Commission’s report that suggested a regulation of ART clinics as surrogacy got covered under one of the functions of these clinics, the Department of Health Research came out with the ‘Assisted Reproductive Technology Regulation Bill, 2017’ that provided a framework for such regulation.
• The ART bill of 2016 was reintroduced in Lok Sabha on July 15th 2019 with amended provisions as The Surrogacy (Regulation) Bill, 2019 by Dr Harsh Vardhan Health and Family Affairs.
• Passed in the Lok Sabha on August 5th, 2019 the Bill was sent to the Select Committee of Rajya Sabha on November 21, 2019. The Select Committee submitted its report on 5th February 2020. 

The Surrogacy Regulation Bill, 2019 (Important Provisions)

Laws of a nation are a mirror of society. The laws that are proving to be a bone of contention and are raised further under the next section of this article to provide a basis for disapproving Bill’s constitutionality. The Bill was introduced in the Lok Sabha by Health minister Dr Harshvardhan on July 15, 2019.

• Definitions of ‘Surrogacy’ and ‘altruistic surrogacy’: Surrogacy is defined as an act where a woman bears a child for the intending couple and hands over the child to them after birth. Altruistic surrogacy is where no monetary benefit for e.g. remuneration, fees, incentive etc is to be paid to the surrogate mother or her representative other than an insurance cover for 16 months( covering her natal and postnatal condition) and medical expenses. Commercial surrogacy included payment for related procedures too. 
• Commercial surrogacy is prohibited under the bill, and only altruistic surrogacy is allowed.
• Surrogacy is permitted only when: 

1. It is done for intending couples who have procured a certificate of infertility from the ‘appropriate authority.’ 
2. it is done as an altruistic act 
3. it is conducted not for fulfilling commercial purposes 
4. not for producing children for any kind of illegal exploitation 
5. any other condition as specified by the Board

• A ‘certificate of essentiality and eligibility’ needs to be procured by the intending couples by the appropriate authority.
• Essentiality will be proven when the following conditions are fulfilled:

1. The District Medical Board issues a certificate of infertility to either or both of the intending parents.
2. The Magistrates court passes an order of parentage or custody in favour of the parents.
3. Insurance coverage has been procured by the intending parents covering postpartum complexities for the surrogate mother.

• A couple is ascertained to be ‘eligible’ when the following conditions are fulfilled:

1. The couple should be citizens of India and should be married for at least five years. 
2. The wife should be 23 to 50 years old, and the husband 26 to 55 years old.
3. They should be childless (no child alive at the time). Mentally or physically challenged children or those suffering from fatal illnesses or disorders are included in this category.  
4. Any other condition as prescribed by the Board.

• The surrogate should fulfil the following grounds to be eligible: 

1. She should be a ‘close relative’. The definition of a close relative hasn’t been given in the Bill, which is a drawback.
2. She should be a married woman who has a child of her own.
3. She should be 25 to 35 years old.
4. She can only be a surrogate once in her entire lifetime.
5. She should be medically and psychologically fit. She cannot provide her own gametes for surrogacy.

• The State and the Central Government are supposed to form ‘Appropriate Authorities’ within 90 days from the enactment of this Bill. The functions of these authorities would include:

1. Regulating grants, suspension or cancelling the registration of surrogacy clinics.
2. Enforcement of standards for surrogacy clinics.
3. investigation and taking an action against a breach of the provisions.
4. Recommendations as to modifications to be made in the rules and regulations.

• The State and the Central Government shall constitute the National and the State Surrogacy Boards (NSB and SSB). NSB’s functions shall include: 

1. Giving advice to the Central Government on policies related to surrogacy.
2. Providing a code of conduct for the clinics.
3. Supervising SSBs. 

• The child born of the surrogate mother would be deemed as the biological child of the intending parents. Only after procuring a written consent from the surrogate mother and the authority can a child be aborted. This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971. The surrogate mother can only withdraw from the procedure before the embryo is formed in her womb.
• The offences mentioned under the Bill: 

1. Any kind of advertisement promoting commercial surrogacy
2. The exploitation of the surrogate mother 
3. Abandonment, exploitation or an act of disowning a surrogate child; and
4. Sale or import of human embryos or gametes.

The penalty: An imprisonment up to 10 years and a fine of a maximum of 10 lakh rupees. There are certain other specified offences and penalties for breaching other provisions as well.

Constitutional validity

Under this head, the author has tried to argue that the Bill is unconstitutional by juxtaposing the provisions of the bill with the existing provision of the Constitution. The articles that will get violated if this Bill becomes an Act are mentioned below:    

Unjust exclusion: violation of Article 14

Article 14 of the Constitution embodies equality. The text of Article 14 primarily brings out two concepts. ‘Equality before the law’, means that every person is to be subjected to the same laws and no one has any authority to function above the laws of the land whereas ‘equal protection of laws’ opens up a room for ‘intelligible differentia’ i.e. reasonable classification of people. In the present act, along with many other conditions, only the infertile heterosexual couples who have been married for 5 years have the right to get an option for surrogacy. When you limit the ambit of the law by only putting heterosexual married couples then a class of people is born. Such classification is difficult to be justified as there is no reason as to why others have been excluded.

Why can’t a transgender, homosexual couple, widow or a widower get a surrogate? Why has there been a time bar as to the period of marriage? Why is there no mention of the people who are in a live-in relationship? Why can’t a divorcee avail the option of a surrogate? When you try to find an answer to these questions or a rationale behind the formation of such a class you easily find it in the stigma present in Indian society. A married couple has a settled place of honour in the eyes of the people in this society.

Though it has been debated and asserted by the ruling party that this 5-year time bar has been put to ensure that the couple is financially stable and emotionally invested into each other, yet the truth lies in the fact that nobody really knows what goes behind the close doors of a household. Such classification is based on stigma and ill reasoning and is regressive in nature.

A mockery of woman rights and privacy: violation of Article 21

The Supreme Court of India had asserted reproductive rights of a woman as a fundamental right in 2017 in its judgement in KS Puttaswamy vs UOI and had stated that they form an inherent part of privacy and therefore, falls under the ambit of Article 21. After reading the provisions mentioned in the Bill for a surrogate woman, it can be clearly seen that the government has left no room for a woman to make a decision regarding something as private as her own body. 

A woman needs to get a certificate from the appropriate authority to qualify as a ‘surrogate’. There are certain conditions that are necessary to be fulfilled by a woman to get the certificate.

One of the most contentious of the provisions included that the woman should be a ‘close relative’ of the commissioning party. Apparently being a close relative is not the only criteria required as she should have been married in the past and should have a child of her own. The government has even put an age cap on surrogates i.e. only close relatives from the age of 25-35 can be surrogates. She can only be a surrogate once in her life (the attempts for that one single pregnancy can be as many as possible).

One of the quandaries that the present provisions present is also that if the woman is going to be a close relative then wouldn’t it make it difficult for the surrogate to detach from the new born child. That child could be in her close proximity for the rest of her life and that might have a psychological toll on her.

A complete ban has been put on commercial surrogacy instead of coming up with any reforms in the existing provisions. Many human rights activists and organisations have staged a strict protest against the complete ban of commercial surrogacy as everybody has the right of choice and expression. When the law encroaches upon the right of choice that a woman has on his/her own body, isn’t it violating the rights vested under Article 21? 

The opposition has strongly debated on the point that the benefits or reliefs mentioned in the Bill for a woman who chooses to be a surrogate are insufficient. The bill currently includes only insurance coverage for 16 months that includes postpartum delivery complications. This provision needs a boost as the insurance coverage seems too meagre as compared to the efforts of the surrogate mother in an ‘altruistic surrogacy.’ The opposition has demanded a paid leave provision for a surrogate mother if the mother is working and certain other perks to being included in the provision.

The economic aspect of surrogacy has been completely neglected. The government, while taking away this right of choosing surrogacy as an opportunity to earn money, has not provided any alternate employment. The women that got abused by the scam in the surrogacy system majorly belonged to the low-income families. They did it out of compulsion and not out of choice.

In the existing market, the poor women or the surrogates lie at the lowest level of the money chain i.e. the maximum earners are the doctors or the middlemen, the surrogates get abused and paid minimal amounts. In 2015 by putting a partial ban on the foreigners, it was witnessed that the women suffered even more. Foreigners paid more for the services provided by a surrogate. There is also a problem of money transfer into the account of the surrogate as there were different stages and the money was to be disbursed in instalments. There was a delay caused in such transfers and there was no law as to reforming this fallacy.

An indirect attack at the sentiment behind decriminalization of same-sex carnal intercourse mentioned u/a 377

The justification to the abovementioned statement can be provided by quoting Abhina Aher, an associate director at Alliance India and a trans right nationalist, from one of her interviews where he rightly exclaims “Parenthood is beyond gender, sexuality or sexual preferences. Remember, gay people are born from heterosexual acts too.”

In 2018, the Indian judiciary in Navtej Singh Johar vs UOI along with decriminalising the carnal engagement of two consenting same-sex individuals mentioned about how there is a need to come up with more laws to sensitise the society and build a communal space that is conducive of growth and recognition of such people. The text of the judgement was seen as a big leap towards the recognition of gay rights. 

Indu Malhotra, J, exclaimed that history owes an apology to the members of this community. To effectuate these words and undo all the atrocities faced by people of this community, the legislature needs to walk hand in hand with the judiciary and come up with laws that are a step towards building a better space rather than those which conform to the present miserable situation. This Bill is clearly not indicative of an intention of the legislature to come up with a law that furthers the inclusion of the community. To deal with the vices already present in the community due to commercial surrogacy, exclusion of this community goes completely without a reason.

Conclusion

The present bill that lies in Rajya Sabha is brought forward with a very limited understanding of the concept. To prevent the exploitation of poor women being lured into the clutches of evil associated with surrogacy, regulation and reform along with strict action is necessary. Surrogacy is a very sensitive topic that involves a lot of factors to be deeply analysed.

The concept has emotional, physical and economical needs to be fulfilled. A balance has to be struck between all the factors. The current bill has not only undermined these factors but also have come up with such provisions that are regressive and also create an unjust class which is unconstitutional in nature.

A complete ban would only result in the emergence of even a bigger illegal market with increased involvement of the middlemen because there already is a big profitable market working and it wouldn’t just fade away, it would only go ‘underground’.

There is a need to bring about a major shift in the perspective of the government as to look at these poor women not just as ‘poor’ women who are only capable of getting abused but to look at them as dignified actors in this entire process.

Although a reprieve can be sought in the fact that in 2020 certain changes that were suggested by the Standing Committee have now been incorporated. The changes bring in hope for a better piece of legislation in future which is more progressive than the present one.

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