Open Access Research Article
SURROGACY ACT: A VIOLATION OF REPRODUCTIVE RIGHTS
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SURROGACY ACT: A VIOLATION OF
REPRODUCTIVE RIGHTS
AUTHORED BY - ANJALI NAIN
& DHAKA VIRENDAR KUMAR
INTRODUCTION
There is not a single international
human rights agreement that effectively defines surrogacy right in the
scientific and technical world of today. According to the findings of scholars
working in larger cross-cultural situations, surrogacy has become a global
concern. In order to create legal conformity, the problem must also be resolved
internationally by passing international surrogacy legislation. Due to
tremendous advances in science and technology, “assisted reproductive
technology” (ART) procedures like in “vitro fertilization” (IVF), “artificial
insemination” (AI), “intracytoplasmic sperm injection” (ICSI), and surrogacy
are now widely accessible. Infertile couples, single people, and gay and
lesbian people who want biological children have recently chosen surrogacy as
their preferred method of treatment. The Surrogacy Bill of 2016 must be in
accordance with the Indian Constitution.
Surrogacy
Surrogacy is the process by which a
woman carries a child for another woman and then gives the child to the
commissioning couple after the delivery. Surrogacy involves a woman giving her
agreement to conceive, carry, and deliver a child, as well as giving another
family custody of the kid. According to Fellowes, there are four types of
surrogacies, (2017): traditional, gestational, charitable, and commercial. In
genetic surrogacy, often known as “conventional surrogacy”, the “surrogate
mother” contributes her egg to the pregnancy. In contrast, the “intending
mother” provides her egg in gestational surrogacy, whereas the “surrogate
mother” has no genetic ties to the child.[1]
A surrogate mother gets rewarded for
bearing the child of the commissioning couple in commercial surrogacy. In
contrast, a surrogate who provides their services for free is not compensated.
In an “altruistic surrogacy”, the intended parents pay their surrogacy worker
only for direct and immediate medical expenses and other surrogacy-related
costs. Straight people or couples frequently use surrogacy to address the
biological cause of female infertility. According to Garzone, unmarried gay men
who want to produce children and raise them with genetic ties to themselves but
are unable to do so due to legal constraints in their local communities are
increasingly turning to surrogacy as an alternative to adoption.
Surrogacy Laws in India
Over the last few years, India has emerged as
the leading choice for reproductive tourism among non-citizen couples. This is
due to a variety of issues, the most notable of which is that India does not
have a surrogacy statute. The rise of assisted reproductive technologies (ARTs)
and surrogacy in India is portrayed by the Times of India as a positive
development in science and medicine that will help those who are unable to
produce children through traditional ways of conception from families.
According to an Indian government circular, India has emerged as the top
“International Reproductive Tourism Destination” with “No Law Prohibit and No
Law Permit” because it is simple for many women interested in becoming
surrogate mothers to travel here, due to the factors such as excellent medical
professionals, inexpensive procedure, and close monitoring of the Article 21 of
the Indian Constitution, which states that everyone has the right to
reproductive health care regardless of gender or nationality, is the most
important legal regulation of surrogacy in India. This right is recognized in
the majority of international human rights treaties, both established and
recent, as well as regional agreements.[2]
For the time being, India has “No Law
and No Precedent” available to reconcile these competing interests. “According to Bhumika a
renowned modern jurist, India was the first country in the world to legalize
commercial surrogacy in 2002. The sole non-binding principles outlined in the
Indian Council of “Medical Research's Assisted Reproductive Technologies” (ART)
Bill of 2010 now control the fertility business. However, because it is not a
formal body, handicraft facilities often violate these constraints in their
daily obligations. In 2009, the Law Commission of India presented its 228 Report,
which suggested that surrogacy legislation be enacted to control assisted
reproductive technology (ART) and establish the rights and obligations of
parties to surrogacy-related agreements”. The Assisted Reproductive Technology (Regulation) Bills
of 2008 and 2010 were crafted with a number of methods to manage the ART
business. However, there were numerous issues with these measures. The Indian
government recently issued the New Indian Visa Regulation, 2012, making it
illegal for international singles and homosexual couples to use surrogates in
India.
On September 30, 2015, the ART Bill
of 2014 and feedback from relevant parties were made available to the public
for review. Surrogacy was raised in both the Jayashree Wad and Jan Balza cases.
The Supreme Court of India agreed to hear arguments on the matter again since
it involves a lot of complicated issues that necessitate legal remedies. On
November 4, 2015, the Indian government's Ministry of Health and Family Welfare
stated that commercial surrogacy would be prohibited for all foreigners in
India.
On August 24, 2016, Minister of
External Affairs Sushma Swaraj released the draft “Surrogacy Regulation Bill,
2016”, which aims to prevent unethical surrogacy practices, protect the rights
of surrogate children, and prevent surrogate mothers from being exploited. On
November 21, 2016, the Surrogacy Regulation Bill, 2016, was introduced for
consideration in the Lok Sabha House of Parliament. The Surrogacy (Regulation)
Bill of 2016 prohibits commercial surrogacy but makes an exception for
altruistic surrogacy. This is one of the most critical provisions of the bill.
Prospective parents must be heterosexual Indian married couples who have been
together for at least five years in order to qualify for the legalization of
altruistic surrogacy in India. Surrogacy is currently not addressed by any
statutes in our legal system, nor is it subject to any type of regulation.
Sengupta (2016) believes it is prudent to assume that the Parliament will move
forward with the development of surrogacy legislation.[3]
Current Position of the Surrogacy
Laws in India
The ICMR Guidelines, 2005 now govern
surrogacy laws in India. This is because there is currently no surrogacy law in
India. These limits, however, cannot be justified or enforced in a court of law
due to their lack of legislative importance. On November 21, 2016, the
government introduced the Surrogacy (Regulation) Bill. The legislative body is
now considering it. As a result, the Lok Sabha is currently discussing the 2016
Bill. As a result, “only altruistic surrogacy is legal for infertile Indian
married couples at the moment”.
Surrogacy and Constitution Of India
Right to
Reproduction
The Constitution protects the right
to procreate. The right to choose how to have children is protected by the
Constitution, regardless of ethnicity or gender. Every person has this right.
As a result, it is a natural human right to be able to marry, establish a
family, reproduce, and become pregnant. It is a vital part of a person's identity
as well as a legally protected right. Articles 19 and 21 of the fundamental
rights treat individual liberty and freedom of speech and expression,
respectively, and can be used to define the reproduction right.
The rights of women to conceive,
carry, and give birth may be included in these articles. If the freedom to
reproduce is considered a fundamental right, then married couples who are
unable to conceive biological children during a normal marriage have the right
to use surrogacy or assisted reproductive technology. This is the scenario if
the right to reproduce is considered a fundamental right. Surrogacy has not yet
been addressed in India's Constitutional Law because it is a relatively new
notion that is gaining popularity.
As a result, there is no room for
ambiguity in the response, which states that motherhood should be recognized
and protected in accordance with the Indian Constitution, whether gained
artificially or spontaneously. Article 23 is meant to make antisocial behaviour
in public places illegal. As a result, it works hard to keep the person hidden
from both the public and the government. As a result, Articles 19 (1) (a) and
21 of the Constitution grant the freedom to have children via surrogacy or
assisted reproductive technology (ART).
The Supreme Court of India has ruled
that fundamental rights are of the utmost importance in all of its decisions.
The court heard arguments in the case of A. K. Gopalan v. the State of
Madras. The Supreme Court interpreted the terms “procedure established
by law” in Article 21 as far as feasible and declared “the fundamental rights
sacred”. It was also referred to as the “right that the people have been
seeking” in the State of Madras v. Chapakam Dorairajan. A basic
right, according to P.B. Gajendragadkar, is “a legally enforceable right that
regulates the relationship between the State and the individual”. As a result,
basic rights have been adequately recognized as the foundation of the
Constitution.
The privacy concept was highlighted
in the twenty-first century by the case Govind v. State of M.P.,
which was brought under Article 21 of the Indian Constitution and applied to a
few rights. The Supreme Court of India stated in the well-known case Maneka Gandhi v. Union of India[4]
that the legal process must be equitable, fair, and reasonable. In this case,
the court clearly recognized the right to privacy as a basic right under
Article 21. In addition, the judge ordered that the proper legal procedure must
be always followed. In recognition of the significance of the right to privacy,
Article 21-B of the Indian Constitution is titled “RIGHT TO PRIVACY”. As a
direct consequence of this, the Indian courts adopted a broad interpretation of
the right to privacy and included the right to procreation as part of that
right. This concept is more commonly referred to as reproductive autonomy. This
was made possible through the application of a liberal reading of the
constitutional right to privacy.
Legal Position in India Towards
Surrogacy
The surrogacy arrangement is said to
provide a “medical remedy” to infertility; nevertheless, a wider description of
it is a “social, ethical, and legal problem”. Despite being referred to as a
solution, this is not the case. As a result, it is up to the legal system to
resolve the issues raised by surrogacy and strike a balance between the
competing interests of all parties involved.
The Indian judicial system is
currently hearing three notable surrogacy cases. India, on the other hand, has
its own kind of gift store. Surrogate mothers in India see themselves as
recipients of gifts rather than givers of them. Surrogate moms are given the
opportunity to earn money as a form of a gift.
According to this study, surrogate
mothers in India do not appear to be gift-givers. Instead, they urged people to
think about surrogacy as “God's gift to needy but not greedy moms” and referred
to it as a “Gift of God”. This completes the fourth component of the
traditional Indian gift tale. Surrogate mothers are thought to regard the
opportunity to become surrogate mothers as a blessing because it allows them to
earn money to support their families. The Court informed the Central Government
that it needed to produce answers to fourteen questions about commercial
surrogacy. On October 14, 2015, Justices Ranjan Gogoi and N. V. Ramana
advocated a ban on the export of human embryos and commercial surrogacy. The
Court also asked fourteen questions about commercial surrogacy.
Right To Privacy, Reproductive
Autonomy,
And Bodily Integrity
“Furthermore, the Indian government's
complete prohibition on commercial surrogacy would have a significant impact
not just on India's growing women's rights laws, but also on the rest of the
world. According to the Supreme Court of India's 2009 judgment in the case of Suchita Srivastava v. Chandigarh Administration[5],
the right to make reproductive decisions is protected by Article 21 of the
Indian Constitution. This right includes the ability to carry a pregnancy to
term, give birth, and raise a child.
The Supreme Court of India declared
in the case of K.S. Puttaswamy v. Union of India
[6]
that the right to privacy, which is guaranteed by various parts of the
Constitution, protects delicate personal decisions such as those governing
reproduction. Given the circumstances, this decision was made”. Women would be unable
to use their reproductive abilities for financial gain if commercial surrogacy
were completely forbidden. This restriction of choice may violate
constitutionally protected rights to privacy, reproductive freedom, and
physical integrity.
Both the Indian Constitution, which
outlines certain rights for citizens and the various international treaties, of
which India is a signatory at the federal level, are in conflict with the
provisions of this bill. Both the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights prohibit the involvement
of the state in the private lives of women. The concept of the right to privacy
as conceived by the ICCPR Committee takes into consideration the autonomy and
bodily integrity of women. Because it violates these rights, the bill's broad
restriction on commercial surrogacy should be disregarded as something that
should be ignored.
Even though commercial surrogacy has
been completely prohibited by many countries in the Northern Hemisphere, there
are three key reasons why the same activity is not appropriate in Indian
society. First, even if commercial surrogacy were expressly forbidden, it is
possible that it would still take place in secret. This is one of the primary
sources of people's anxiety. When commercial surrogacy becomes more common,
poor women will be forced to participate since they will have few other options
for employment. The surrogates' health would be jeopardized, and there could be
an increase in the number of infants abandoned as a result of the intended
parents no longer being in control of the child's care.
The second issue with this plan is
that it would allow potential surrogates to be used for illegal commercial
surrogacy. Potential surrogates would almost certainly be unable to take legal
action because they would be perceived as participating in the illegal
behaviour they were facilitating. Last but not least, if commercial surrogacy is
forbidden, India's already significant gender gap will increase significantly.
As previously said, making a living
for women in India's predominantly patriarchal society is incredibly
challenging, especially for those who are marginalized and without access to
basic resources. Commercial surrogacy is one of the few ways for women in such
challenging circumstances to earn money without competing with men, and
prohibiting it will simply worsen India's wage disparities between men and
women. Surrogacy is one of the few methods for women to earn money without
competing against men.
Lacunae in the Surrogacy (Regulation)
Act, 2021
The SURROGACY REGULATION ACT, 2021,
was passed by Parliament after the campaigners campaigned for years to attain
this goal in order to implement and control the succession process. The Act did
not take force after the notification was published in the Union Government's
Official Gazette on January 25. To protect the surrogate mother's rights and
honour, as well as to assist women who are unable to conceive despite a variety
of reproductive therapies, India has passed a number of surrogacy legislation.
These laws are designed to protect the surrogate mother's rights and
reputation.
On the other hand, there are
significant omissions and gaps in the Act, which we will go into greater detail
about in the following paragraphs. I would like to bring your attention to the
fact that the Act needs to be revised wherever necessary to make it more
comprehensive and clearer so that it can fulfil the requirements set forth by
the people. The non-binary gender exclusion, the prohibition on commercial
surrogacy, the requirement that traditional surrogacy be included, and the
difficulty that medical professionals may have due to the law's vagueness over
who is and is not authorized to use surrogacy services are the primary
complaints regarding the Act.
Even though surrogacy is a relatively
new practice in India, our legendary forefathers may have indulged in it for
hundreds of years. Balaram, Devaki, and Vasudeva's seventh child, was also Lord
Krishna's brother, and Vasudeva gave birth to Balaram through Rohini,
Vasudeva's first wife, to protect Rohini from Devaki's brother Kansa. As a
result, surrogacy is never condemned in Indian mythology; rather, it is
regarded as a tool for creating or maintaining families.
The Surrogacy (Regulation) Act, of
2021 is India's first law governing surrogacy, yet social hostility to the
operation persists. This is especially true if the intended mother or the
intended parents requires an egg donor due to a lack of viable eggs. Both
couples seeking surrogacy as a means of birthing and medical professionals have
expressed reservations about the Act. This is due to the Act's significant
flaws. Because of its limited and unclear phrasing, the progressive law that
attempts to make surrogacy available to those who are infertile has failed to
be progressive. The Act intends to make surrogacy available to those who are
unable to conceive.
In the PIL of Arun Muthuvel vs.
Union of India, Muthuvel who is CEO of Iswarya Fertility Services
Private Limited has filed a petition to the government that 35-year-old single
women should have the right to use surrogacy as an assisted reproductive
procedure to have children. He claims that neither of the challenged Acts
achieves their principal goal of limiting surrogacy and other assisted reproduction
methods. The primary purpose is to prevent surrogacy and other assisted
reproductive technologies from being abused.
The appeal also highlights “blatant
discrepancies between the statutes”, which are defined as “arbitrary
classification and categorization” that are “not only unreasonable but also
unconstitutional”.
The two pieces of legislation are
also said to exclude same-sex relationships and other LGBTQ people, single
women who have not been widowed or divorced, single women who have been widowed
and/or divorced and are younger than 35 or older than 45, single men, couples
experiencing secondary infertility, couples in which neither partner falls
within the defined age brackets, and couples in which neither partner falls
within the defined age brackets.
The Surrogacy (Regulation) Act, 2021,
and the Surrogacy Rules, 2022, according to the public interest litigation
(PIL), are arbitrary and discriminatory, a direct violation of women's
reproductive rights and the legally protected right to privacy, and thus
violate Articles 14, 15(1), and 21 of the Constitution. According to the PIL,
these constraints are not only difficult to implement, but also arbitrary and
unfair.
Exclusion of LGBTQIA+ community
The Act confines surrogacy services
to married men and women, the Act exemplifies our society's ongoing gender
bias. As a result, same-sex and non-binary couples will never be able to
experience the joys of parenting. The Supreme Court of India invalidated
Section 377 of the Indian Penal Code, which criminalizes homosexuality, in Navtej Singh Johar v. Union of India [7](2018),
however some same-sex couples are unable to meet the requirements of Section
2(h) of the Act. This section emphasizes that a pair must include both a man
and a woman, as well as the fact that only heterosexual married couples are
eligible to use surrogacy services.
Every Indian person has the right to
equality in society because of the fundamental rights given by the Indian
Constitution. Recognizing the LGBTQ community is critical for advancing
equality in society. This privilege was developed in order to honor the LGBTQ
community. The Supreme Court of India heard arguments on the question of
surrogacy for the first time in the case of Baby Manji Yamada v. Union of
India[8].
In that case, the court acknowledged both the practice of using a surrogate to
bear children and the possibility that the biological parent in question was
either a homosexual couple or a single parent. The Act's approval renders the
latter completely useless. Both heterosexual and homosexual couples, as well as
the entire non-binary population, need to be allowed to enjoy the social status
and luxury of having children in the current society.
Need to include traditional surrogacy
Gestational surrogacy and conventional
surrogacy are the two types of surrogacies that have the greatest amount of
public awareness. In contrast to traditional surrogacy, in which the surrogate
mother is also the child's biological mother, gestational surrogacy involves
the implantation of an embryo on behalf of the intended parents. In traditional
surrogacy, the surrogate mother also gives birth to the child. The difference
between traditional surrogacy and gestational surrogacy is that in traditional
surrogacy, the surrogate mother is also the child's biological mother.
The 2021 Statute only permits
gestational surrogacy because it is against the law for any woman to act as a
surrogate by donating her gametes. This provision of the law can be found in
Section 4(iii)(b)(III) of the legislation. The Act's Section 8 stipulates that
the surrogate child shall be treated as the biological child of the intending
couple or the intending woman and shall have the same rights and privileges as
a natural child in accordance with the laws that are in effect at the time.
These rights and privileges shall be accorded to the surrogate child in
accordance with the laws that are in effect at the time. This clause's
intention was to make it possible for women who have used surrogacy to carry
their own children.
Traditional surrogacy is an option
for intended mothers who are unable to produce viable eggs on their own. It is
also available to same-sex male couples, lonely guys, non-binary people, and
those who do not identify as either gender. The Supreme Court of India
considered the frequent surrogacy practice in the Baby Manji Yamada case[9].
The court accepted in this case that couples could choose to go the
"straight road." This type of surrogacy is advantageous because it
reduces the entire cost of the procedure. Traditional surrogacy requires fewer
medical treatments on the surrogate mother than gestational surrogacy. There is
no need to look for another egg donor if the egg that was supposed to be the
mother cannot be fertilized because the egg supplied by the surrogate can be
used instead. Because the egg and sperm are not removed from the uterus, the
therapy is also less expensive. Instead, the possible father's (or donor is,
depending on the circumstances) sperm is artificially inseminated via intrauterine
or intracervical insemination.
Traditional surrogacy can only be
performed if the surrogate is a close cousin or friend of either the intended
parents or the intended mother due to the biological connection between the
intended parents and the surrogate. The surrogate is responsible for carrying
and delivering the child on behalf of the intended parents in a traditional
surrogacy arrangement. For the intended parents to have custody of the child
and raise them together, both the surrogate mother and the egg donor will have
to give up their parental rights. As a result, the child can now be raised by
his or her intended parents. In order to protect their parental rights after
the child is born, the non-biological intended parent may be asked to sign and
complete the adoption paperwork for the child
Judicial Approach
In the case of Baby Manji
Yamada v. Union of India[10],
the Supreme Court of India declared that a single male might function as the
commissioning parent in a “commercial surrogacy” arrangement. As a result, the
court granted custody to Manji's divorced father and her Japanese grandmother.
According to the Gujarat High Court's judgment in Jan
Balaz v. Union of India[11],
children born through Indian surrogates are deemed Indian citizens. As a
result, the court suggested that these youngsters be issued Indian passports.
The Supreme Court relaxed the CARA's
requirements in Stephanie Joan Becker v. State
and Others[12],
allowing a 53-year-old single woman to adopt her 10-year-old orphaned daughter.
In the absence of statute law, the Supreme Court of India must issue
instructions for surrogacy regulation, similar to its decisions in D. K. Basu v. State of West Bengal [13]
and Vishakha v. State of Rajasthan[14].
This is true since it is required. However, in both the Jan Balaz and Jayashree
Wad cases, the Supreme Court of India upheld the issue of surrogacy since the
surrogacy agreement comprises a variety of complicated difficulties that must
be addressed by the relevant legislation. Both possibilities have these concerns.
CONCLUSION
Every person has an innate right to
use their reproductive capacity to generate new life. It is also protected
under Article 21 of the Indian Constitution, which preserves the rights to life
and personal liberty, in addition to a number of international human rights
agreements. Everyone has the right to marry and have children. The government
developed drafts of the Assisted Reproductive Technology (Regulation) Bills in
2008, 2010, and 2014; nevertheless, these proposals were deemed inadequate for
the current scenario, generating several concerns.
One of the key motives for joining a
committed romantic relationship in Indian culture is the desire to start a
family as soon as possible. The majority of divorces and separations are caused
by infertility. Furthermore, the surrogacy arrangement reflects societal
choices and can only be altered by societal preferences. To meet the demands of
modern society, public morality must recognize the possibility of surrogacy.
However, suitable legislation is required to handle the legal concerns. Human
rights, such as the right to procreate, should be provided without restriction
to all individuals and should not be restricted. As a result, more research on
this topic is required.
[1] Choudhary, S. (2015). Surrogacy:
Policy & Legal Framework in India. SSRN Electronic Journal.doi:
10.2139/ssrn.2612347.
[2] Timms, O. (2018). Ending
commercial surrogacy in India: significance of the Surrogacy (Regulation) Bill,
2016. Indian Journal Of Medical Ethics. doi: 10.20529/ijme.2018.019.
[3] Bhaumik, S. (2012).The Legal
Standpoint of Surrogacy in India. SSRN Electronic Journal.doi:
10.2139/ssrn.2036499.
[5] Suchita Srivastava v.
Chandigarh Administration, CIVIL APPEAL NO.5845 OF 2009
[6] K.S. Puttaswamy v. Union of
India, AIR 2017 SC 4161
[7] Navtej Singh Johar v. Union
of India, AIR 2018 SC 4321
[8] Baby Manji Yamada v. Union of
India, WRIT PETITION (C) NO. 369 OF 2008.
[9] Baby Manji Yamada v. Union of
India, WRIT PETITION (C) NO. 369 OF 2008.
[10] Baby Manji Yamada v. Union of
India, WRIT PETITION (C) NO. 369 OF 2008
[11] Jan Balaz v. Union of India,
CA No. 8714/2010
[12] Joan Becker v. State and
Others, CIVIL APPEAL No.1053 of 2013
[13] D. K. Basu v. State of West
Bengal, WITH WRIT PETITION (CRL) NO. 592 OF 1987
Article Information
SURROGACY ACT: A VIOLATION OF REPRODUCTIVE RIGHTS
Authors: ANJALI NAIN, DHAKA VIRENDAR KUMAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/22
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
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