Draft surrogacy bill violates fundamental right of people to choose modes of parenthood

Overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples are barred from commissioning the services of surrogate mothers.

Written by Anil Malhotra | Updated: March 6, 2017 2:26 pm
 surrogacy, surrogacy bill, gurrogate mother, what is surrogacy, ban on commercial surrogacy, commercial surrogacy, surrogacy for money, ethical surrogacy, infertile couple surrogacy, ban on gay surrogacy, ban on single parent surrogacy, Indian Council for Medical Research, ICMR, Central Adoption Resource Agency, ART bill, indian express opinion, opinion The cabinet’s decision does not appear to be in consonance with constitutional provisions. (Illustration by: C R Sasikumar)

On August 24, the Union cabinet approved the Surrogacy (Regulation) Bill, 2016. The bill proposes a ban on commercial surrogacy, restricting “ethical” and “altruistic surrogacy” to legally-wedded infertile Indian couples, who have been married for at least five years.

The husband must be between 26 to 55 years of age and the wife must be between 23 to 50 years of age. Overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples are barred from commissioning the services of surrogate mothers. Only a married blood relative, who must have herself borne a child, and is not an NRI or a foreigner, can be a surrogate mother, once in a lifetime. Indian couples with biological or adopted children are prohibited from having children through surrogacy. Commercial surrogacy will result in a jail term of at least 10 years and a fine of up to Rs 10 lakh. The proposed law is not yet in the public domain.

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The cabinet’s decision does not appear to be in consonance with constitutional provisions. Article 14 of the Constitution guarantees “equality before the law and equal protection of laws to all persons”. Article 21 guarantees “protection of life and personal liberty of all persons”. Restricting conditional surrogacy to married Indian couples and disqualifying others on the basis of nationality, marital status, sexual orientation or age, does not appear to qualify the test of equality and has no connection with the intended objectives of the proposed legislation. Further, the right to life includes the right to reproductive autonomy — that includes the right to procreation and parenthood. It is not for the state to decide the modes of parenthood. Constitutionally, the state cannot interfere in the prerogative of a person(s) to have children, naturally or through surrogacy. Infertility cannot be a condition to undertake surrogacy. The proposed law ought to be put in the public domain before the country’s parliamentarians debate it.

In 2005, the Indian Council for Medical Research (ICMR), under the ministry of health and family welfare, finalised the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, after the extensive public debate that involved all the stakeholders. Chapter three of the guidelines, which pertains to the code of practice, ethical considerations, and legal issues, stipulates that there shall be no bar to the use of ART by single women and no ART clinic will refuse to offer its services to them. The guidelines did not bar an unmarried woman from opting for artificial insemination with donor semen and a child born to a single woman through such a procedure was deemed to be legitimate. These guidelines have not been rescinded till date.

Successive draft bills — in 2008, 2010 and 2013 — had reportedly proposed that ART in India be available to all, including single persons and foreign couples. However, draft ART bills of 2014 and 2016 restricted surrogacy to Indian married infertile couples. The fate of the ART Bill, 2016, is unknown, while the cabinet has approved the Surrogacy (Regulation) Bill, 2016.

The Union ministry of women and child development has a diametrically opposite policy with respect to inter-country adoptions. It facilitates fast-track adoptions from India by foreigners. The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) allows a court to give a child for adoption to foreign parents, irrespective of the marital status of such a person. The JJ Act also authorises state governments to recognise one or more of its institutions or voluntary organisations as agencies for the placement of orphans for adoption, in accordance with the guidelines notified by the Central Adoption Resource Agency (CARA). The latest guidelines governing adoption of children notified on July 17, 2015, have streamlined inter-country adoption procedures. They permit single parent adoptions but bar single males from adopting a girl child. By all accounts, it seems there are different barometers in matters of adoption and surrogacy.

Surrogacy has been in vogue in the country for more than 10 years. The proposed bar on it violates the fundamental rights of stakeholders. Foreign and single parents who commission the services of surrogate mothers enjoy protection under Articles 14 and 21 of the Constitution — equality under law and the right to life. Right to reproductive autonomy and parenthood, as a part of right to life of a single or foreign person, cannot be circumvented, especially when the law already permits parenthood through inter-country adoptions from India — by single persons or foreign couples. The draft bill bars medical professionals from offering their services in surrogacy procedures (except for altruistic surrogacy). It also deprives surrogate mothers of their right to livelihood.

The government has justified the barring of foreigners to prevent the misuse of surrogacy. This could prove counterproductive. The yardsticks governing domestic altruistic surrogacy will offer an opportunity for corruption and exploitation, pushing surrogacy into unethical hands. It could foster an underground abusive trade in surrogacy. Relatives will be generated and surrogates will be impregnated in India and shifted to permissible jurisdictions.

Given that the surrogate mothers will be Indian nationals, whose safety will be at risk once surrogacy becomes an underground business, there is a dire need to enact a comprehensive law that factors in the current societal practices associated with surrogacy. The problems pertaining to adoption of Indian children by foreigners were resolved by guidelines, which over the years have acquired statutory status. A similar approach could be adopted to regulate surrogacy. There should be an appropriate mechanism to judge the suitability of surrogate parents — citizens or foreigners should not matter. An agency along the lines of the Central Adoption Resource Agency — that administers adoption of Indian children by foreigners — could be created to regulate surrogacy. A democratic law, which we have been waiting for, for the past 10 years, must regulate surrogacy in the country.

(This article first appeared in the print edition under the headline ‘One more for the ban-wagon’)

The writer is a Chandigarh-based lawyer and the principal author of ‘Surrogacy In India : A Law In The Making Revisited’

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