This article is written by Vallika Varshri, a first-year student at Jindal Global Law School (O.P. Jindal Global University)
The Surrogacy (Regulation) Bill 2019 was passed by the Parliament of India by a voice vote. Its aim is to ban the practice of commercial surrogacy by replacing it with altruistic surrogacy [1]. The regulation of surrogacy is a necessity as the lack of legislation governing it was leading to its rampant commercialisation, exploitation of the surrogate, unethical practices and abandonment of children born out of surrogacy as well as import of gametes and embryos. The Bill aims to protect the rights of the surrogate mother as well as the child born out of surrogacy in line with the recommendations of the Law Commission of India [2].
Despite the clear provisions of the Act, various scholars, women as well as the LGTBQ+ community have raised objections . Due to the heteronormative nature of the provisions, same sex couples as well as single parents have been excluded from the scope of ‘intending couple’. This is said to be a regressive provision which denies certain people a particular right on the basis of their sex.
Denial of Equality to the LGBTQIA+
According to Das, “The spirit pervading Article 14 is that of substantive equality and not formal equality” [4]. This can be further elaborated through the landmark 2018 judgement of Naz Foundation v Govt of NCT of Delhi.
According to State of Bombay vs FN Balsara (1951), the right to equality lacks an absolutist nature in as much as it permits for classification between individuals, which thereby leads to the relaxation of equal protection of law to all [5]. On the basis of the principles of State of West Bengal v. Anwar Ali Sarkar and Royappa v. State of Tamil Nadu, the Delhi High Court held that Section 377 of the IPC reflected class legislation in disfavour of the LGBT+ community and therefore failed the test of Article 14 [6].
Thereby, the judgement implies that any distinction on the basis of sex is arbitrarily made. The Surrogacy Bill implies that equality is denied to a certain group of people on the basis of their sexuality and sex since it only allows heteronormative couples to avail surrogates in contravention to the precedent set by the Naz Foundation case.
Definition of Intending Parents: Denial of Equality to Single Parents and Non-Heteronormative Parents
In our society the idea of family is usually centred around a male, female parent and their children. This idea is associated with stability. Neither a single parent nor a same-sex couple will be able to fulfil the needs of the child. By providing for a heteronormative pair of parents, the Bill therefore aims to reduce pressure on the child so as to enable them to live a better, less chaotic life.
According to a report by Organisation for Economic Co-operation and Development, the divorce rate in India remains at a very low 1.4% in 2017 [7]. This data justifies the argument of stability of the heterosexual couple, but a low divorce rate does not automatically mean a happy marriage. In a country like India, where the marriage is a ‘quintessential and sacred act’ for a woman, divorce is looked at as a failure on her part [8]. Therefore, due to the stigma attached, women are often forced to stay in unhappy marriages out of fear of social ostracisation.
With the context of the Bill in mind, we can interpret that this is in fact detrimental for a child’s mental well-being and does not ensure a stable home life. As a result, we can infer that the provision for a heteronormative intending couple does not actually fulfil the intent of the Bill, thereby making it an arbitrary provision.
In Devika Biswas vs UOI, the Supreme Court held the right to reproduction as an important component to the right to life. Therefore, restricting this right to heterosexual relations denies reproductive choices to the LGBTQ+ community, single parents and older couple is in violation of the right to life under Article 21 [9].
Criticism of the Intending Surrogate Clause.
The surrogate mother has to be a close relative of the intending couple- this implies that the surrogate mother is related to the couple by blood. This provision was made with the intention of curbing exploitation of women. With the earlier ART Bill under which surrogacy used to fall, transnational commercial surrogacy was a prevalent practice in India.
According to Daisy Deomampo, “Transnational surrogacy in India, as elsewhere, reflects many of these concerns with power and inequality and reveals how disparities in gender, race, class, and nation place some women’s reproductive projects above other” [10].
The process of surrogacy in India earlier was leading to the exploitation of women, especially those who came from poorer economic backgrounds, thereby justifying the need for a complete ban on commercial surrogacy. Provision for a close relative was made so as to ensure that strangers were not exploited as surrogate mothers.
However, a country like India has an established structure of patriarchy which is enforced through the hierarchies it creates, and due to the patriarchal nature of these non-linear divisions of power, women should be at the short end of the stick. A ICRM panel said that limiting surrogate mother to ‘close relative’ would lead to coercion and further exploitation of women due to family pressure given the social, legal, emotional and ethical dynamics involved [11].
In Consumer Education and Research Centre and Ors. v. Union of India, the Supreme Court stated that the expression ‘life’ assured in Article 21 of the Constitution has a much wider meaning and includes right to livelihood [12]. This principle was recognised in Olga Tellis v. Bombay Municipal Corporation [13] as well. This implies that a woman should have autonomy over her own body in such a way so as to even be able to decide if she wants to use it as a means of earning monetary compensation, which the Surrogacy Bill categorically denies through its provisions.
Conclusion
The Surrogacy (Regulation) Bill, 2019 is the first bill in the Parliament of India so as to address the topic of surrogacy by itself. The concept of surrogacy in India is in the early stages of being formalised due to which it will be bound to develop further through new acts, rules and precedents (as is the inevitable trend in common law systems with respect to laws) and the Surrogacy (Regulation) Bill, 2019 is the first attempt in this process, which will hopefully improve with process.
[1] Worldwide Surrogacy Specialists, ‘Commercial Surrogacy vs Altruistic Surrogacy’ (Worldwide Surrogacy Specialists LLC, 7th April 2017) https://info.worldwidesurrogacy.org/blog/commercial-surrogacy-vs.-altruistic-surrogacy
[2] Prasanna Mohanty, ‘The Surrogacy (Regulation) Bill 2019: A casual approach to a serious problem’ (BusinessToday, 15th August 2019) <https://www.businesstoday.in/current/policy/surrogacy-regulation-bill-2019-infertility-indian-council-of-medical-research-icmr-surrogate-mothers-in-vitro-fertilisation-ivf/story/372797.html>
[3] The Surrogacy (Regulation) Bill, 2019 s2
[4] Anjaneya Das, ‘Gay and Transgender Rights in India: Naz Foundation v Government of NCT of Delhi’ (2009) SSRN 1, 6
[5] State of Bombay v. F.N. Balsara AIR 1951 SC 318 as cited in ibid 4, 5
[6] Ibid 4, 5-6
[7] Shephali Bhatt, ‘Happily divorced: Indian women are breaking the stigma around separation like never before’ (ET, 27th Jan, 2019) <https://economictimes.indiatimes.com/magazines/panache/happily-divorced-indian-women-are-breaking-the-stigma-around-separation-like-never-before/articleshow/67704287.cms?from=mdr>
[8] ibid 7
[9] Alice George, Aviral Chauhan, ‘Surrogacy Bill and ART Bill: Boon or Bane?’ (Cyril Amarchand Mangaldas, 1st April, 2019) <https://corporate.cyrilamarchandblogs.com/2019/04/surrogacy-bill-and-art-bill-boon-or-bane/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original>
[10] Daisy Deomampo, ‘Transnational Surrogacy in India: Interrogating Power and Women’s Agency’ (2013), Frontiers: A Journal of Women Studies 34(3), 167, 172
[11] Ibid 2
[12] (1995) 3 SCC 42 as cited in ibid 9
[13] AIR 1986 SC 180 as cited in 9
[14] Image: LiveLaw https://www.livelaw.in/news-updates/ls-passed-the-surrogacy-regulation-bill-2019-146966
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