With the Commercial Surrogacy (Regulation) Bill 2019 (hereinafter referred to as ‘the bill’) being sent to the Rajya Sabha Review Committee, it becomes pertinent to shed light upon the forthcoming aftermath, if the bill is assented to by the Rajya Sabha and subsequently secures the Presidential assent.

The Legislative History of Attempts at the Regulation of Surrogacy:

The first attempt at the regulation of surrogacy is said to have been made by the Indian council of Medical Research (ICMR) in the year 2005 with the drafting of the National guidelines for the accreditation, supervision, and regulation of the ‘ART clinics’ which subsequently led to the drafting of the ART Bill in the year 2008, 2010 and 2014, however, none of these were assented to by the Parliament.

The Surrogacy (Regulation) Bill of 2016 was the outcome of the recommendation of the Law Commission of India, which took up the task to acknowledge the need to regulate the ART Clinics along with providing lucidity to the rights and duties of the parties involved.

In line for Rajya Sabha’s assent, stands the Surrogacy (Regulation) Bill, 2019 which is deemed to be a rehash of the 2016 bill.

The 2019 Bill:

Speaking on the bill Dr. Harsha Vardhan said:

‘the bill seeks to achieve various objectives including an end to the exploitation of women and protection of the rights of the surrogate mother and the child born out of surrogacy.’

Intending to curb women’s exploitation, the bill sheds light upon the practice of surrogacy which it defines as a process whereby one woman bears a child and gives birth to the same to hand over the child to the intended couple.

Furthermore, the term ‘intending couple’, as defined by section 2 (g) of the bill, has to be a medically certified infertile couple and hence, they intend to become parents through surrogacy.

The problematic aspect of the same is that, under the same, the bill excludes single persons, divorcees, live-in couples, widows, widowers and gay couples which is reflective of unequal treatment.

The surrogate mother, in the said process, becomes pregnant through a procedure called ‘In-vitro Fertilization’, commonly known as the IVF treatment and she is not genetically related to the child.

The bill allows only “ethical altruistic surrogacy” in India which is defined in the bill as surrogacy wherein no monetary expenses, except the medical expenses incurred by the surrogate mother along with the insurance coverage, are provided and thereby seeks to ban commercial surrogacy.

Wherein, commercial surrogacy, as opposed to altruistic surrogacy, is a practice of surrogacy which includes providing any monetary benefit or reward in addition to the medical expenses incurred and insurance coverage to the surrogate mother.

What all Does the Bill Provide and What it Majorly Lacks.

The bill proposes the formulation of Surrogacy boards at various levels along with the appointment of various authorities to regulate the practice and process of surrogacy. It allows only “ethical altruistic surrogacy” as provided above, whilst banning commercial sale and import of human embryo for the purposes of surrogacy.

Besides, it mandates compulsory registration of the surrogacy clinics which conduct surrogacy procedure in any form along with providing the punishment, which the violation of any provision of the bill would attract.

The bill requires the surrogate mother to be a “close relative” along with being an ever-married woman having a child of her own and must be between the age of 25 to 35 and puts up a condition that she would be allowed to surrogate only once in her lifetime.

However, the bill fails to address whether this “close relative” has given genuine consent or she has been forced or coerced by the intended couple to agree.

As regards the termination of pregnancy, it can happen only upon written permission of the surrogate mother in addition to authorization by an appropriate authority.

Another objective of the bill is to prevent the abandonment of the child born out of surrogacy and to afford similar privileges as a biological child.

The supporters of the bill, in addition to labeling the bill a move to end the exploitation and abuse of the human dignity which commercial surrogacy involves, also provide for the major fallacy which such practice involves to strengthen their argument.

It is expressed that under interviews of the surrogate mothers, it has been found that they had no information as to the kind of medical intervention they would undergo (were even subjected to caesarian surgeries) and have also expressed that were not given any postnatal care by either the ART agencies or the intending couple.

Having discussed the facets of the bill that need to be addressed, the next part of the article will throw light upon the reasons for the stance that I have taken.

The Primary Concern: A Bill is a Wrong Approach to a Right Cause

The bill is labeled as progressive legislation by its supporters and the Indian government; however, I believe that the bill serves more adequately as a regressive piece of legislation.

Undeniably, the objective which the legislation seeks to achieve, that is, to end the practice of “baby outsourcing” is a very crucial one but on the other hand, it sweeps along with the fundamental right of women as to her bodily autonomy.

Firstly, the Bill would lead the surrogate mother to lose on the financial assistance she could provide to her family.

We cannot sideline that Commercial surrogacy is a $400 million business in India  and will shut down once the bill obtains the assent of the upper house. The figure isn’t to add weight to the malpractices surrounding the Industry but to highlight the failure on the part of the legislators to acknowledge the growth of the surrogacy industry.

These figures add influence and weight to the argument that I advance, which is, that this bill, in addition to the other shortfalls, also makes the surrogate mother lose on the income she could earn to provide financial assistance to her family.

I believe that the suggested ban rather than curtailing would deepen the exploitation of women. The argument draws weight from the aftermath which followed the banning of the gay couples, who were labeled as being ‘antithetical to the Indian culture’.

Secondly, the adoption of the Bill might lead to the risk of commercial surrogacy by various illegal means.

It is expected that it, among the other shortfalls of giving assent to the bill, might expose the women to the risk of being trafficked to other countries for such purposes as if not permitted here, this would be done by trafficking them to some other country which permits it and hence, it is suggested that rather than banning the practice itself as a whole, it would be better if stringent and robust laws are made for the regulation of this practice.

This helps me in advancing another argument that the bill, for the reason stated above, cannot be adopted as a measure to curb the exploitation of women.

Thirdly, the Bill amounts to a violation of the right to life and liberty.

The bill, to an extent, hampers the constitutional ideal of liberty and equality also. The Judiciary has, time and again, expressed that “personal liberty” envisaged under Article 21 guarantees every woman a right to make reproductive choices (K.S. Puttaswamy 2012 ruling, Devika Biswas v. Union of India, MANU/SC/0999/2016) which includes allowing her the right to make choices concerning her bodily autonomy, be it bearing child or raising it. More importantly, it has been stated as an inalienable right like the other fundamental rights.

Furthermore, the bill is a threat to the other guarantees which Article 21 bestows upon an individual, namely, the idea of self-determination which was emphasized upon in the Supreme Court’s landmark pronouncement in the Navtej Singh Johar and Ors vs. Union of India (UOI) and Ors [MANU/SC/0947/2018] and the various aspects of individual’s right to freedom and dignity that empowers an individual to make his or her own choices, which this bill sweeps along.

However, according to the bill, only the legally married heterosexual couples are eligible for surrogacy excluding single persons, divorcees, live-in couples, widows and widowers, gay couples among others, completely disregarding their right to parent a child and is hence violative of the ‘right to life and liberty’.

The fourth and last argument is that the bill is violative of the ‘right of equality’.

It becomes important to note that the bill is violative of the ‘Right to equality’ as it permits only the heterosexual couples falling within the specified age range to be eligible and the category of an intending couple. The bill hence turns discriminatory towards the people falling out of the specified age range along with the homosexual couples and the LGBTQ community which amounts to impairing chances of parenthood to many.

Hence, upon the perusal of the bill and the Parliamentary Standing committee report on the 2016 bill brings me to the conclusion that the “need of the hour” is not this bill (as labeled by the Health Minister) but laws which could regulate the practice of surrogacy adequately.

The article has been written by Isha Choudhary

This article was first published in the Blog namely The Criminal Law Blog