Fundamental Rights and The Surrogacy (Regulation) Act, 2021: A Constitutional Scrutiny

Author: Hari Yeseswini & Sai Rohith

INTRODUCTION:

In 2002 commercial surrogacy was legalised in India by way of setting up of guidelines by the Indian Council for Medical Research (ICMR). It was unregulated because of a lack of regulating legislation by the Government. The biggest impact was brought through the case of Baby Manji Yamada v. Union of India AIR 2009 where the government was encouraged to enact a law to regulate the practice of surrogacy. In 2009, the Law Commission in its 228th report recommended guidelines to regulate surrogacy to protect the parties i.e., surrogate mother and intending couple by adding key features like transparency, privacy, providing financial support for surrogate mother and legitimacy to the surrogate child. After various draft bills, the Surrogacy (Regulation) Act, 2021 was passed containing incompatible provisions incapable of protecting the rights of surrogate mother and intended parents. The Act of 2021 arbitrarily bans the commercial surrogacy and permits altruistic surrogacy only with the close relatives. This restricts the surrogate mother from gaining monetary compensation for her work. The idea of demonising commercial surrogacy invites us to believe that commercial surrogacy is necessarily exploitative and altruistic surrogacy is not. The Act further makes diabolical provisions like mandating a surrogate mother to be a married woman with a condition that she can be a surrogate for only once in her lifetime. It also puts conditions on the intending couple, who would like to perform surrogacy to get a certificate of recommendation and a certificate of essentiality from the appropriate authority and they should not have a biological, adopted or a prior surrogate child of their own. Thereby, this paper argues that the provisions of the Surrogacy (Regulation) Act, 2021 capriciously violate the fundamental rights of the very people which it seeks to empower. The violations include the Right to Life, Personal Liberty, Choice, Privacy, Equality and Profession enshrined under Art. 21, 14 and 19 of the Constitution of India respectively.

THE RIGHT TO PRIVACY:

The act requires the intending couple to have obtained a certificate from the appropriate authority. The certificate is issued only after the following conditions are met.

Legally wed couple of Indian origin.
The age of man shall be between 26-55 years; and the age of woman shall be between 25-50 years on the day of certification.
No biological, adopted or previous surrogate child of their own for at least 5 years.

The certificate of essentiality will be granted only to those couples who are not able to conceive naturally after five years of unprotected coitus. It is needed to disclose the certificates of essentiality requiring either of the partners or both to be infertile to make them eligible to use surrogacy. This provision utterly infringes upon the right to privacy of the couple. This condition is so narrow that it makes impossible for those people like –

The woman, who suffers from medical conditions such as uterine fibroids, that generally allow a woman to conceive but prevent her from carrying a baby to the term.
The woman who can conceive but do not wish to carry a child,
A person who has lost a husband or a wife after marriage and do not want to remarry but wishes to have a child of their own through surrogacy.
A single parent who was divorced wanting to opt for surrogacy to found their family.

To get a certificate of essentiality utterly makes them ineligible to beget children through surrogacy. This infringes the right to reproductive autonomy of the intending couple under Article 21. TheRight to reproductive autonomy means having the power of the law to protect and allow yourself the right to make your own choices about birth control, pregnancy, and having children. It is an inalienable right given to a person by virtue of being born as a human being. It was established by the Supreme Court in the case of B.K. Parthasarathi v. Govt. of Andhra Pradesh^[1], that the Right of Reproductive Autonomy of an individual is a facet of his Right to Privacy whilst agreeing with the decision of the US Supreme Court in Skinner v. State of Oklahoma^{^[2]}, which characterised the right to reproduce as one of the basic civil rights of man, a fundamental right as per Article-21 of the Constitution. In the case of R. Rajagopal v. State of Tamil Nadu^[3] the Supreme Court held that the right to privacy is implicit in the right to life and liberty guaranteed to all persons by Article 21. It is a right to be let alone. The Act of 2021, by mandating a person to disclose for certificate of essentiality infringes the right to privacy and dignity of the intending couple under Article 21. It was held by the Supreme Court in the landmark case of Navtej Singh Johar v Union of India^{^[4]}, that the citizen has a right to safeguard the privacy of his own, his family, marriage, child bearing, procreation, motherhood, and education among other matters relating to him and that the matters of sex, sexuality, and procreation are not only the private choices but also the questions of dignity.

The requirement that the couple be married for at least 5 years is a breach of fundamental right to reproductive autonomy and the right to privacy as Given the change in the lifestyles and the rise of later-age marriages, when people are well into their 30s or even 40s and who choose to settle down, a five-year wait can affect the quality of their gametes and diminish the chances of procreation through the practice of surrogacy. It further restricts the couple with no biological, adopted or prior surrogate children of their own and even the infertile couple who wish to have children early to unreasonably wait for a prolonged period of 5 years. It also bars the couple who already have a biological, adopted or surrogate child, from exercising their right to reproductive autonomy to have children through surrogacy. The act does not provide as to why it bars couples with biological, adopted or prior surrogate children from opting to choose surrogacy.

THE RIGHT TO EQUALITY:

The Act of 2021 arbitrarily limits its applicability only to married heterosexual couples by precluding homosexual couples, single parents, live-in relation couples and foreigners purely on the basis of sex, marital status and nationality. It haphazardly takes away the right of homosexual couples, live-in relation couples, single parents and foreigners their right to choose surrogacy as a mode to found a family solely discriminating without any reasonable classification on the basis of sex, marriage status and nationality of a person and arbitrarily restricts the unreasonably discriminated class to exercise their right to reproductive autonomy i.e. exercising their own choice in matters of childbirth as held in B.K. Parthasarathi v. Govt. of Andhra Pradesh^[5].

It also bars couples with biological, adopted or prior surrogate child from opting to choose surrogacy, and there exists no rational nexus for such classification to be made with the object of the act which aims at preventing exploitation of surrogate mother infringing upon Article 14. The Act prescribes the requirement of the age of man to be between 26-55 years and the age of woman to be between 25-50 years to avail surrogacy, this prescription of different age for men and women has no rational nexus with the object of the Act and this classification further reinforces the age-old patriarchal value that men have to be older than women.

By restricting single parents from choosing surrogacy to found a family solely on the basis of marital status especially when single parents are allowed to adopt children, clearly shows that there exists unreasonable classification and act fails to provide a rational nexus between the classification and the object of the act which focuses on protecting the surrogates from exploitation. Thereby, grossly violating the Right to Equality enshrined under Article 14 of the constitution.

Furthermore, the inalienable rights such as Right to Reproductive Autonomy is available to every person by virtue of being a human being and the nationality classification cannot reasonably be a ground to take away the basic civil rights. It is of most importance at this point to know that the right to parenthood has been recognised in the International Law through various Covenants and Declarations such as the International Covenant on Civil and Political Rights, 1966 and the Universal Declaration of Human Rights, 1948. The Right to “Found a Family” is established as available to all persons without any discrimination on the basis of race, nationality or religion. On the contrary view, by barring foreign nationals from opting surrogacy in India, but by allowing Indians to perform altruist surrogacy in a way draws an inference that Foreign Nationals can exploit surrogates but Indians cannot. Therefore, the act utterly fails to establish a rational nexus between the classification and objects set to be achieved by the act. Therefore, it violates Article 14 of the Constitution.

In addition to the unreasonable classifications the Act of 2021 promotes the existing stereotypes through its provisions like casting off homosexuals and live-in couples from opting to choose surrogacy which stigmatizes homosexuality and unmarried couples living together to a great extent. Further, by permitting uncompensated surrogacy but prohibiting compensated surrogacy assumes that women’s inherent role is to birth children and reinforce the traditional societal values that attribute no economic value to women’s work. These are the very notions from the past which the Doctrine of Equality aims to annihilate.

RIGHT TO FREEDOM OF TRADE AND PROFESSION:

The practice of surrogacy per se is not immoral. It can be drawn from the fact that the Act of 2021 did not put a blanket ban on the practice of surrogacy. Though, it banned commercial surrogacy whereby the surrogate mother is compensated for her services beyond reimbursement of medical expenses, it allowed altruistic surrogacy where no charges, expenses, fees, remuneration or monetary incentive of whatever nature, other than medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative, thus, not making the practice of surrogacy immoral. It is important to reiterate that by banning commercial surrogacy the government has wickedly infringed upon the lakhs of surrogate women’s freedom of trade and profession.

It is widely argued that child bearing is risky and allowing commercial surrogacy is leading to commodification of women’s labour and exploitation of surrogate mothers. On the contrary, the altruistic surrogacy model expects the women to go through the physical and emotional pain and labour of giving birth to a child only out of compassion and ascribes no economic value to women’s work by casting out women’s labour which is far removed from the present reality. But at this juncture it is pertinent to examine that surrogacy has become a form of reproductive labour with appropriate remuneration attached to the provision of this service. It became a means of survival and a temporary occupation for several poor rural women as it provides remuneration to the surrogate mother that amounts to approximately five years of total family income which can significantly alter the course of their lives. It can be examined that Women’s right to Work which was enshrined in the Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which encapsulates the right to provide this reproductive service for a fee and that this should not be viewed as problematic simply because pregnancy and childbirth involve some risks to a woman’s health as there are other jobs such as being a firefighter or a police officer which are inherently dangerous but which do not elicit the same negative response as commercial surrogacy (and may not pay as much money).

The Act by putting a blanket ban on commercial surrogacy violates the surrogates right to trade and profession enshrined in Article 19 of the Constitution of India and by allowing altruistic surrogacy among close relatives the Act fails to achieve its aim to curb exploitation of surrogate mothers. It is pertinent to note that the Altruistic Surrogacy may lead to physical abuse and torture of surrogates due to the added unpleasant pressure from the family members to become surrogates for other family members due to lack of other options. It further fortifies discriminatory stereotypes that limit women’s authority by denying the women the right to earn money through this work and invisibilizing women’s labour.

The prohibition of the practice of commercial surrogacy and limiting the practice of altruistic surrogacy to only once in surrogates’ life violates the “Right to Livelihood” and “Decisive Autonomy of the Surrogates”.

There are many downtrodden women in the society who choose surrogacy as a mode to earn their livelihood as they can make a handful of money sufficient for several years of the life of women. The Act instead of putting in place of a proper mechanism to regulate exploitation of surrogate mothers, rather by banning commercial surrogacy failed to recognise that some women earn their bread and butter through commercial surrogacy. Further, the ban may create blackmarketing in surrogacy leading to more exploitation of surrogate mothers, thereby taking away the right of surrogate mothers to earn their livelihood by performing surrogacy as enshrined under Art. 21 of the constitution.

Further, the act places a provision which unethically limits a surrogate mother from practising surrogacy for not more than once in her life-time. The Constitution of India, grants decisive autonomy for every citizen to take decisions in the matters of reproduction. No act can infringe upon this right of a citizen. In one the leading case of Suchita Srivastava v Chandigarh Administration^[6] the court held that “reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children; and that these rights form part of a woman’s right to privacy, dignity, and bodily integrity”.

The provision of this Act restricts an individual who is healthy, mentally and physically stable, and all the more who chooses to practise surrogacy as a profession to earn livelihood. It is important to say that a woman’s right to privacy also constitutes her right to make decision regarding her own body and work, if a woman makes a free decision to take up surrogacy as a profession, then the act preventing her from being a surrogate impinges on her right to decisive autonomy to be a surrogate. It also violates her right to livelihood enshrined under Article 21 of the Constitution. Therefore, the right of privacy of every citizen to be free from groundless governmental interference in matters affecting a person’s decision to bear a child as a surrogate mother through surrogacy cannot be infringed upon by state’s arbitrary action to curtail women’s decisive autonomy, reproductive and professional choices in a democratic society.

CONCLUSION:

Mr. Hari G Ramasubramanian, who was the Chief Consultant at Indian Surrogacy Law Centre, Chennai, notes that the concept of surrogacy is received in a very negative sense in the Act, “By permitting only altruistic surrogacy, the commercial dynamic involved in the process is removed. And this will only oppress the women for not doing what they can do”.[7] India has an infertility rate at eight percent, there is still a significant demand for Indian surrogate mothers, this ban on commercial surrogacy will put an end to hopes of the couple who are not ready to or who cannot opt for altruistic surrogacy, making their personal affairs known to those who know them, will ultimately lead to more black-marketing in surrogacy. It is true that surrogacy is a billion-dollar industry and it needs to be properly regulated, by substituting commercial surrogacy with ethical surrogacy placing strict laws for both surrogates and intended couple, where it takes into account the of the women who can conceive but doesn’t wish or can’t carry a child due to medical conditions and homosexual, live-in couples, single parents who wish to have children of their own. There is a chance of exploitation only when it is unregulated, where commercial surrogacy is regulated, legislation can endeavour to protect the rights of all parties.

The Authors are Law students at University College of Law, Osmania University.

^[1] 1999 SCC OnLine AP 514

^[2] 1942 SCC OnLine USSC 125

^[3] (1994) 6 SCC 632

^[4] (2018) 10 SCC 1

^[5] 1999 SCC OnLine AP 514

^[6] (2009) 9 SCC 1

[7] Blanket ban on commercial surrogacy eliminates aspect of privacy; unfair to couples who marry late, homosexuals-india news , Firstpost, Firstpost (2018), https://www.firstpost.com/india/blanket-ban-on-commercial-surrogacy-eliminates-aspect-of-privacy-unfair-to-couples-who-marry-late-homosexuals-5799601.html (last visited Apr 28, 2022).