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BALANCING ACTS UNRAVELING THE CONSTITUTIONAL CONUNDRUM OF INDIA S SURROGACY (REGULATION) BILL, 2020
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BALANCING
ACTS: UNRAVELING THE CONSTITUTIONAL CONUNDRUM OF INDIA'S SURROGACY (REGULATION)
BILL, 2020
AHTHORED
BY - NIKHIL SRIVASTAVA
3rd
Year BA LLB (Hons)
Symbiosis International (Deemed) University, Pune,
INDIA
Surrogacy is not an over the top, new principle in Indian society.
Instances can be traced to the mythological surrogate mothers such as Yashoda
and Gandhari.[1]
Surrogacy is the act of having a child with the aid of another individual with
the help of advanced medical facilities. India has seen a rapid increase in
medical technology in the field of IVF. India has been able to set up a hefty
amount of IVF clinics and has made its name in ‘Reproductive tourism’. An
increasing number of poor Indian women are turning to paid surrogates for
childless foreign couples. The Indian reproductive tourism is now 5000 million
dollars with around 3000 fertility clinics.[2]
India has thus been termed as “The Surrogacy Capital of the World”. [3]
India has been a global leader in surrogacy-based tourism due to the
poor populace willing to act as surrogates for money. Other reasons for the
increase in surrogacy are lax surrogacy laws and an increase in IVF clinics. In
the present scenario, reform is very much needed. Surrogacy is an important
topic that affects the people of our country issue such as ‘surrogacy’ must be
regulated. Commercial surrogacy remains unregulated and is the root of evils
regarding surrogacy in our nation. Regulation and a new law are the need of the
hour. The Surrogacy (Regulation) Bill, 2020, was approved by the Union Cabinet
and, on 9th December 2021, was approved by the Rajya Sabha. It will
be sent back to Lok Sabha for approval. [4]
The Surrogacy (Regulation) Bill, 2020, aims to establish stringent
rules and regulations to protect the interests of the surrogate and the parties
wanting a child. However, its main objective is to ban commercial surrogacy to
avoid any form of unethical practice in the process. Further, the bill focuses
on the regulation of surrogacy and seeks to launch a National Surrogacy Board
and State Surrogacy Board at the central level and state level, respectively.
The bill aims to rectify the mistakes made by prior bills. The Surrogacy Bill
of 2020 takes a strong stance against commercial surrogacy, unlike the Bills of
2008 and 2014, which permitted commercial surrogacy.
OBJECTIVES OF RESEARCH
1.
To
critically analyze the impact of Surrogacy (Regulation) Bill 2020 on the
potential parents, surrogate mothers and commercial surrogacy clinics
2.
To
critically examine the legality of the bill and analyze the Surrogacy
(Regulation) Bill 2020 with the Fundamental Rights of the citizens.
3.
To
analyze the views of researchers, legal professionals, politicians and people
impacted by the Surrogacy (Regulation) Bill 2020.
RESEARCH HYPOTHESIS
H1: A complete ban on commercial surrogacy is not the right way to go.
H2: The Bill violates the public interest and cannot deliver its primary
objective.
H3: The Bill will do worse to the dynamic of the society than good.
H4. The bill violates the rights of foreign nationals by banning them to
act as potential parents as guaranteed by the Constitution of India.
RESEARCH QUESTION
1.
Does
the bill violate Article 14 of the Indian Constitution?
2.
Does
the bill violate Article 19 of the Indian Constitution?
3.
Does
the bill violate Article 21 of the Indian Constitution?
4.
METHODOLOGY
The study was conducted using a combination of Doctrinal and
Non-Doctrinal Research. The study has a vast amount of relevant information
accessible through online research. Information from journal articles, books,
reports and judgements formed the foundation of this research.
Source of
Data: Primary Sources – Legal opinion of the Legal
Professionals and Secondary Sources – Journals, Books, News articles, Judicial
precedents.
Information
Collection Plan: Opinions and people's
views in the legal field were utilized in writing this research. Articles of
the Indian Constitution were referred. Journal such as Indian Law Journal was
referred, and judgements given by courts of India were also considered.
Method of
Citation: The Uniform System of Citation (Bluebook)
20th Edition
Time and
Place of Data Collections: Online (December
18, 2021, to December 24 2021)”
The Surrogacy (Regulation) Bill, 2020, has been a controversial Bill;
it has taken a radical approach to overrule the laws laid down in bills of 2008
and 2014 and laying down conservative rules for the practice of surrogacy. In
the year 2008, the case of Baby Manji Yamada v. Union of India[5]
laid down that surrogacy is legal. The bill has impacted potential parents,
surrogate mothers and legal professionals. The legal validity of the bill is
still a significant issue, as the bill violates the fundamental rights of
surrogates and potential parents.
The topic of Surrogacy (Regulation) Bill, 2020 is a topic that affects
many people in our nation. The surrogacy bill takes a strong stand against
commercial surrogacy. Such a radical stand impacts many people, starting right
from the potential parents. The bill forbids foreigners, NRIs, and PIOs from
commissioning surrogacy in the country. This bill has had a negative impact on
potential parents; until now, couples from across the world used to come to
India to have a baby delivered through a surrogate. They used to pay a lot of
money to surrogates to have a baby and live a happy life. The ban on commercial
surrogacy completely stops such a possibility for infertile couples who wish to
achieve the happiness of having a child.
“It is rightly said that there is nothing more beautiful than
someone who goes out of their way to make life beautiful for others.”[6]
A surrogate is a blessing for infertile couples. Surrogate mothers go through a
lot of pain; every pregnant mother does but surrogate mothers, after bearing
the amount of pain that cannot be put into words, have to give the child to the
rightful parents. This process is an emotionally draining and can have a
psychological impact on the surrogate mothers. Most of the surrogates in India
are financially weak and act as a surrogate to earn a livelihood. However, this
Bill impacts harmfully impacts their livelihood as it stops any form of
commercial surrogacy.
The present literature review is based on selected, recent and
well-cited research and news articles on the issues determined by the
researcher. The literature review also refers to the Surrogacy (Regulation)
Bill itself as a primary literature for review along with numerous case laws to
understand the legal issues at hand. The present literature review is undertaken
to identify the gaps in the bill with the assistance of numerous scholarly
articles and landmark judgements.
Article 14 of the Indian Constitution is a fundamental right that
guarantees ‘equality before the law and equal protection of laws to all persons[7].
The bill is against the decision of the Supreme Court in the case of Navtej
Singh Johar v. Union of India,[8]
where Section 377[9]
was struck down. This decriminalized consensual sexual relations between two
adults of any sexuality.[10]
This bill refuses to recognize homosexual couples as ‘legitimate’ and denies
the rights of homosexual couples.
The bill violates Article 14 of the transgender couples as the current
bill has a particular criterion that would disentitle transgender from
commissioning surrogacy. According to Chapter III (Section 4-10)[11]
of the Surrogacy (Regulation) Bill, 2020, point no. 2 lays down the eligibility
of an intending couple the requirements allow only a heterosexual couple to
take part in the process of altruistic surrogacy “between the ages of 23 to
50 years old (wife) and 26 to 55 years old (husband)”[12].
The bill is not equal for every gender; it leaves the third gender, which the
Supreme Court of India recognized in National Legal Services Authority v. Union
of India.[13]
In the present literature, Karti Chidambaram MP from INC expressed his
dissatisfaction with how the bill excludes more people rather than it includes.
Chidambaram also claims that the bill violates the rights of the LGBTQ
population, live-in couples and single men. TMC’s Dr Kakoli Ghosh Dastidar
agreed with Mr Chidambaram stating the bill violates the fundamental right of
equality. It clearly differentiates between the potential parents by laying
down strict eligibility. [Harikrishnan[14]]
Article 14 is not just a right
guaranteed to the Indian citizens, and it is a right for both citizens and
non-citizens. “The state shall not deny to any person equality before the
law”[15]
the term any person shows that the right is for all. Yet this bill only allows
Indian citizens to be a part of surrogacy as surrogates and potential parents
and does not permit foreigners.[16]
The proposed law is in violation of Article 19(1)(g), which guarantees
the “freedom of trade and profession”[17]
Article 19(1)(g) is not an absolute right. It can be reasonably restricted on
specific grounds, one of such grounds is ‘interest of the general public. The
Surrogacy (Regulation) Bill 2020 presents itself as a bill in the general
public's interest. However, it is pretty contradictory to that. In the case of
Chintaman Rao v. State of MP,[18]
the Supreme Court of India held that restrictions should be reasonable. The
reasonable restriction should be in the public's interest and not excessive in
nature. The Supreme Court also held that the law should strike the proper
balance between the freedom guaranteed under Article 19(1)(g) and the social
control according to Article 19(6).[19]
A complete ban on commercial surrogacy violates this right, and the bill is
unable to strike a balance between social control and individual
freedom. In State of Maharashtra v. Indian Hotel and Restaurant
Association[20],
the Supreme Court had held that a total ban on bar dancing is unconstitutional
as the ban stating that the “cure is worse than the disease” given that
contrary to its purpose that is in favour of societal good, it is resulting in
many unemployed bar dancers are being forced into the societal evil of
prostitution. The court also observed that banning bar dancing also violated
their right to carry on profession or occupation under Article 19(1)(g) of the
Constitution.[21]
In her article, the author has examined the situation of Savita Vasva,
a 34-year mother of three from Dakor, a small town in Gujarat. Savita is
currently acting as a surrogate mother and is waiting for her pregnancy’s
doctor’s report. She mentions that even if she works day and night, she won’t
be able to earn the money that she will earn from acting as a surrogate. The
surrogates at the hospital where Savita is acting as surrogate pay a total of
$6,230 (roughly 4,67,321 rupees) for a single kid. If the surrogates produce a
twin, they are paid $7,395 (roughly 5,54,710 rupees). The bill will steal the
livelihood away from these people who are using surrogacy just to support their
families like Savita. [Neha[22]]
Similarly, banning commercial surrogacy will not achieve the primary
goal of this potential Act, as surrogates will now be exploited and taken
advantage of and will not even be paid for their services. Furthermore, the ban
will harmfully impact society as it will force the commercial surrogacy
industry to go underground like the drug, illegal liquor and prostitution
industry. This bill does more harm to society than good, and it also takes away
the source of income for surrogate mothers. It also hampers the economic growth
of numerous surrogacy clinics. This bill doesn’t create a balance between
social control and the rights of surrogates.
Article 21 of the Indian Constitution[23]
is one of the most sacred rights; it lays down the fundamental right to life
and personal liberty and plays a vital role in every person’s life.[24]
In the case of Olga Tellis v. Bombay Municipal Corporation, the Supreme Court
recognized that the term life in Article 21 has a broader meaning and ultimately
includes the right to livelihood. However, the Surrogacy Bill appeals for a
complete ban on commercial surrogacy, threatening the livelihood of many poor
surrogate women who act as surrogates to earn a livelihood. Banning commercial surrogacy
violates their right to livelihood, which is guaranteed to them by the
Constitution of India.
An article in The Indian Express covered the statements of independent
Rajya Sabha MP Ajit Kumar Bhuyan and BJD’s Dr Amar Patnaik. They were shocked
by the criteria laid down by the bill. They raised the issue of violation of
the rights guaranteed to the LGBTQ community and how this bill is clearly
contrary to the Supreme Court’s judgment in the case of Devika Biswas v Union
of India [The Indian Express][25]
In the case of Devika Biswas v. Union of India,[26]
the Hon'ble Supreme Court recognized that the right to reproductive and
reproductive autonomy is an integral component of Article 21. This right also
includes the right to the integrity of one’s body. However, the current bill
restricts the practice of surrogacy only to heterosexual couples, widows or
divorcee women with a specific age criterion. This action violates the right of
LGBT, unmarried single people and old age couples.
The author highlights the positivity in the Surrogacy (Regulation) Bill
2020. The bill lays down stricter rules and regulations to an industry where
exploitation can be prominent due to no regulations whatsoever. The bill proposes
a stringent process where the candidates must obtain certificates that would
state whether they are eligible to act as surrogates.
The present literature also shows how the bill protects the surrogates
and the rights of the child born out of surrogacy as the bill makes it a
compulsion that the surrogacy clinics have to be registered so that there is no
medical malice. The bill protects the unborn child but clearly specifies that
surrogacy must not be sex-selective [Legal Service India E-Journal[27]]
CONCLUSION
The Surrogacy
(Regulation) Bill, 2020, stands as a pivotal point of contention, where legal,
ethical, and societal considerations converge. As India grapples with its
position as a surrogacy hub and confronts the need for comprehensive
regulation, the implications of this bill resonate across various domains. This
research journey delved into the intricate facets of the bill, spanning its
historical context, objectives, research hypotheses, and critical analysis.
The study illuminated the
multifaceted impact of the bill on key stakeholders: potential parents,
surrogate mothers, and commercial surrogacy clinics. While the bill's intent to
establish stringent norms for surrogacy practices cannot be undermined, the
complete ban on commercial surrogacy raises pertinent concerns. The bill's
implications on fundamental rights, particularly Articles 14, 19(1)(g), and 21
of the Indian Constitution, unveil a complex interplay between public interest
and individual liberties. The literature review further underscored the
divergence of perspectives on the bill's constitutionality. The violation of Article 14, which guarantees
equality before the law, emerged as a significant contention, as the bill
discriminates against LGBTQ couples and excludes transgender individuals.
Similarly, the bill's conflict with Article 19(1)(g), the freedom to carry on trade and
profession, raises questions about striking a balance between societal control
and individual rights. The breach of Article 21, the right to life and personal liberty,
became evident in the potential threat to the livelihood of surrogate mothers
due to the ban on commercial surrogacy.
While the bill showcases
efforts to enhance regulation and accountability, its restrictive measures
could inadvertently lead to unforeseen consequences. The positive aspects of
the bill, such as curbing potential exploitation and ensuring medical
standards, need to be weighed against the broader impact on the lives of
surrogate mothers and potential parents longing for a child.
In essence, the research
underscores the necessity for a nuanced approach. Striking a balance between
safeguarding individual rights, fostering equality, and maintaining public
welfare requires meticulous deliberation. The Surrogacy
(Regulation) Bill, 2020, challenges India's legal and ethical landscape, necessitating
comprehensive discourse, engagement with diverse perspectives, and perhaps even
revisions that uphold the spirit of both justice and compassion in this rapidly
evolving field. As India navigates the complexities of surrogacy, achieving
this balance becomes paramount to ensure that the future of surrogacy is
founded on principles that respect the rights and dignity of all parties
involved.
[1] Anu Aneja and Shubhangi Vaidya, Embodying
Motherhood: Perspective of Contemporary India 140-141 (1st edition,
published in 18 July, 2016).
[2] Shubhangi Priya,
Evaluating Surrogacy Legislation in India, Social & Political Research
Foundation, https://sprf.in/evaluating-surrogacy-legislation-in-india/ , (Last Visited: 20/12/2021, 1:20 am)
[3] Chinmoy Pradip
Sharma, Surrogacy Laws in India – Past Experiences and Emerging Facets, Bar
& Bench,https://www.barandbench.com/columns/surrogacy-laws-in-india-past-experiences-and-emerging-facets, (Last Visited: 20/12/ 2021, 2:33am)
[4] Indian Express, https://indianexpress.com/article/india/surrogacy-regulation-bill-art-bill-passed-by-rajya-sabha-7663054/
(Last Visited: 20/12/2021, 2:45 am)
[5] Baby Manji Yamada v. Union of
India AIR 2009 SC 84
[6] Mandy Hale
[7] Art.14, the Constitution of India.
[8] Navtej Singh Johar v. Union of
India, AIR 2018 SC 4321
[9] Section 377, Indian Penal Code
[10] Shubhangi Priya,
Evaluating Surrogacy Legislation in India, Social & Political Research
Foundation, https://sprf.in/evaluating-surrogacy-legislation-in-india/
[11] The Surrogacy
(Regulation) Bill, 2020(Reported by The Select Committee).
[12] Surrogacy Bill, supra 11
[13] National Legal Services Authority
v. Union of India, AIR 2014 SC 1863.
[14] Harikrishnan Sharma - Reproductive
tech Bill: Oppn welcomes regulation, but flags exclusion of single men, LGBTQ
people,
[15] Art 14, supra. 7
[16] Aparajita Amar & Arjun
Aggarwal, The emerging laws relating Surrogacy: A procreational right for
Single Parent, Transgenders and Foreigners, The SCC Online Blog,
https://www.scconline.com/blog/post/2018/04/10/the-emerging-laws-relating-surrogacy-a-procreational-right-for-single-parent-transgenders-and-foreigners/.
https://www.scconline.com/blog/post/2018/04/10/the-emerging-laws-relating-surrogacy-a-procreational-right-for-single-parent-transgenders-and-foreigners/.
[17] Art. 19(1)(g),
the Constitution of India.
[19] Saraswat & Jain, Yet another
creation of crime, Law and Other Things,
https://lawandotherthings.com/2019/02/yet-another-creation-of-crime/.
https://lawandotherthings.com/2019/02/yet-another-creation-of-crime/.
[20] State of Maharashtra v. Indian
Hotel and Restaurant Association, AIR 2013 SC 2582.
[21] State
of Maharashtra & Anr. v Indian Hotel and Restaurants Association &
Ors.Civil Appeal No. 2705, Escr-Net,https://www.escr-net.org/caselaw/2015/state-maharashtra-anr-v-indian-hotel-and-restaurants-association-ors-civil-appeal-no.
[22] Neha Thirani Bagri/Anand - A
Controversial Ban on Commercial Surrogacy Could Leave Women in India With Even
Fewer Choices https://time.com/6075971/commercial-surrogacy-ban-india/
[23] Art. 21, the Constitution of India
[24] Durga Das Basu, Commentary on The
Constitution of India, 350 (8th edition 2010).
[25] Surrogacy regulation Bill and ART
Bill passed by Rajya Sabha, https://indianexpress.com/article/india/surrogacy-regulation-bill-art-bill-passed-by-rajya-sabha-7663054/
[26] Devika Biswas v. Union of India,
(2016) 10 SCC 726.
Article Information
BALANCING ACTS UNRAVELING THE CONSTITUTIONAL CONUNDRUM OF INDIA S SURROGACY (REGULATION) BILL, 2020
Authors: NIKHIL SRIVASTAVA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/08/30
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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