Bollywood celebrities like Karan Johar and Tusshar Kapoor became proud fathers via surrogacy but other aspiring singles may face roadblocks as a proposed law restricts this method by allowing only legally wedded couples. Several experts including lawyers and doctors, barring a few, were of the view that the window of surrogacy should not be closed for single parents and the couples should have the option to choose anyone who is not a close relative as a surrogate mother. However, senior advocate Shekhar Naphade had a different and mixed take on the entire issue. While maintaining that it has become a “fashion” among celebrities to become a single parent, he advocated doing away with the provision to allow only a couple’s close relative to become a surrogate mother.
The Surrogacy (Regulation) Bill, 2016, introduced in Lok Sabha last year, also faced criticism from practitioners of family law like Priya Hingorani and Anil Malhotra, who assailed the provisions which take away the rights of gays and lesbians from attaining parenthood with a clause that only legally wedded persons can go for surrogacy. The proposed law virtually bars all others like unmarried couples, single parents, live-in partners and homosexuals from opting children through surrogacy. Dr Bikas Kumar Singh, Chief Medical Officer at a major private hospital here who preferred not to comment on the aspect of single parents, expressed reservation on the point of restriction that mandates a surrogate mother to be a close relative.
“The last hope for a childless couple should not be curtailed but extended with due filtering,” Singh said. Giving a broader perspective, Hingorani said it was not correct to only allow a close relative to be a surrogate mother as her confidentiality has to be maintained and anyone else should be permitted to do so. Malhotra said the bar on unmarried couples and others from opting for surrogacy was violative of Article 14 of the Constitution which provides equality before the law and equal protection.
As per the bill, the intending couples should be legally married for at least five years and should be Indian citizens to undertake surrogacy which would be allowed only for altruistic reasons. It also specifies the age limit for an infertile couple, where the woman should be aged between 23-50 years and the man between 26-55 years. Naphade, who has filed a petition in the Supreme Court opposing commercialisation of surrogacy, said he does not subscribe to the concept of single parent and there should be a time frame after which a married couple can go for surrogacy.
“It should not be a substitute for having a child through an unnatural process. The child should have both a father and a mother. When he goes out in the society, he will have a problem if he does not have a father or a mother. It is in the larger interest of the child,” he contended. However, these experts were united on their view that the clause of close relatives becoming surrogates was “objectionable” and would create family problems as it could reveal the identity of the surrogate mother, which needs to be kept secret. Hingorani, who was of the opinion that this clause would be challenged in court, said “when a single parent can adopt a child, why can’t they go for surrogacy? It is contradictory.
The intention of the bill is not to make surrogacy commercial. But you cannot single out gay and lesbian couples. When single mothers and live-in partners are recognised by law, how can you exclude them from surrogacy?” While Naphade said the provision will be a “little problematic” and it needs to be debated, Dr Singh said the identity of the surrogate mother must be kept secret and if she is their close relative, there are chances that the child would come to know about it at a later stage. Malhotra was of the view that commercial surrogacy will still flourish and unethical practices continue. So, the better method would be to provide a regulatory authority with statutory powers like CARA is for adoptions.
“This clause of close relatives being surrogates will create family problems and conflicts with relatives in the family fold, as current societal practices in India may not find such a practice acceptable in traditional homes,” he said. They, however, differed in their opinion on the provision of disallowing foreigners from opting surrogacy in India. While Dr Singh agreed with the government in disallowing foreigners saying it would ensure that women from the middle or lower middle classes are not exploited, Hingorani said there should be uniformity on the issue across the world and in many nations, they do not allow surrogacy. So why do people from there come here for it, she asked.
The woman lawyer said surrogacy should be legalised and open to others as well and proper norms should be evolved. People should be allowed only after they fulfill all criteria. She said the bill should include that the surrogate mother’s health is properly taken care of, both pre- and post-delivery. And, instead of compensating her with hefty money, her health should be given priority. Dr Singh said that all medical aspects are covered in the bill and added that health of the woman should be considered but it should not be made the only criteria.
Malhotra said the ban on Non-Resident Indians, Persons of Indian Origin and Overseas Citizens of India per se does not appear to be satisfying any test of a valid bar. Such a discrimination clearly violates Article 14 of the Constitution when brought in parity with adoptions permissible to the NRIs, PIOs and the OCIs, he said. In January this year, the Rajya Sabha Chairman had referred the legislation, as introduced in the Lok Sabha in November last year, to the Parliamentary Standing Committee on Health and Family Welfare for in-depth examination. The parliamentary panel has invited suggestions on the legislation from all stakeholders.