By Rabia Mohamed Ismail Abdul Rahim, NUALS, Kochi.

The surrogacy scenario is India is ironic. When on one hand celebrities, ranging from Sharukh Khan to Karan Johar have enthusiastically adopted this Artificial Reproductive Technology, the Government on the other hand, displeased, drafts a bill banning commercial surrogacy as a whole, which is a $400 million industry. Is this the solution to the innumerable issues arising from surrogacy? Or is this just going to fuel the fire?

Where some religious preachers and philosophers abhor the very concept of surrogacy, regard it as immoral and against the culture of our country and religious practices, they seem to be unaware of the existence of the practice of surrogacy throughout ancient times. Of when, in the Mahabharata, Lord Vishnu transferred an embryo from Devaki’s womb to the womb of Rohini, or of when in the Old Testament of the Bible, Sarah commissioned Hagar to bear a child with Abraham.

The government also justifies the banning of commercial surrogacy, stating that it is important to do so, as this practice is against the “ethos of the country”, in the words of the External Affairs Minister, Sushma Swaraj. Say, would someone please raise the question as to what is the “right” ethos of our Country. However, a recent Supreme Court decision recognises homosexuals, the same category of people who have been accused of violating the same “ethos” of our country. So clearly, such a thing, if it even exists, is not stagnant and not enforceable. Then why is it that, in the noble practice of surrogacy, where a woman gives another, the joy of motherhood, that there needs to be such moral policing?

The primary issue with surrogacy in India is the lack of proper regulatory legislation.  Hoping to solve this issue, two bills have been introduced in the Parliament- The Surrogacy (Regulation) Bill and The ART Bill.

The advantage of the Surrogacy (Regulation) Bill over the ART bill, it can be said, is that, the former looks into extensive exploitation, which is a byproduct of commercial surrogacy. At the same time though, it also abides by archaic ideas of who can be parents and who cannot. The Bill was subject to criticism by not just the opposition but also the surrogate women in the country – these would be women who go from having a stable source of income to nothing at all, thus violating the fundamental right of freedom of profession of these women.

However, this is not the only fundamental right violation by the Bill.

The Bill holds that surrogacy is not for single parents, unmarried couples, NRIs, PIOs, and foreigners cannot avail of surrogacy. The absence of reasonable classification between those who can and cannot avail surrogacy amounts to violation of Right to Equality guaranteed under Article 14 of the Indian Constitution as such a classification is not based on any intelligible differentia, neither does it have any rational nexus sought to be achieved by the Bill. The Supreme Court recognised live-in relations and hence children of such relationships should also be considered legitimate. Moreover, the Juvenile Justice Act, 2015 permits all the above mentioned to adopt children. By all accounts, it seems there are different barometers in matters of adoption and surrogacy, which explicitly proves absence of any intelligible differentia. The lack of rational nexus with the object of the Act is also evident.

Furthermore, exploitation in surrogacy will be prevalent even when the above mentioned people are restricted from commissioning. The Bill also suffers from the vice of vagueness with respect to the language used and, in not addressing certain important issues, hence making it violative of Article 14.

Secondly, the ban on commercial surrogacy endangers the right under Article 19(1)(g) of Freedom of Profession of the surrogate mothers. There is no blanket ban on the practice of surrogacy, it is to be noticed, that this ban merely restricts itself to commercial surrogacy, and hence, it can be said that there is no legitimate object sought to be achieved by this ban. Legalising only altruistic surrogacy doesn’t achieve the objective of this potential Act, as surrogates carrying a commissioning couple’s child could still be subject to exploitation, the only difference being that she will not be paid for it. Further, any such blanket ban or partial ban will only drive the industry underground.

Further, the Bill violates Article 21 of the Constitution of India, guaranteeing the right to life and personal liberty, unless deprived according to procedure established by law. The procedure under the Bill is not reasonable, fair and just, as it is violative of Articles 14 and 19 as elaborated above. The Right to privacy included under Article 21 vesting upon a citizen, the right to safeguard not only his own privacy but also of his family, marriage, procreation, motherhood, childbearing and education, among other matters, has also been violated as the Bill dictates who can practice surrogacy, who may avail the same and how many times a couple may commission surrogacy.  

The instant Bill also seeks to ban Indian women from acting as surrogates unless they are closely related to the commissioning parents. By this, they are violating the Right to Reproduction of the women. It is highly patriarchal to understand the use of a woman’s body as a surrogate mother as something that is distinct from anyone else’s labour being used for private gain.

No law in its ultimate effect should end up perpetuating the oppression of women. Instead of prohibiting women in or at employment avenues, the State should take measures by balancing  safety concerns arising from risks at such employment avenues against individual autonomy and privacy right of women.

Surrogacy is a highly complex issue fraught with legal, emotional and social challenges. However, while there is a need for regulation, we cannot wish away the advances in medical science and the subsequent impact on surrogacy. We need to have a legislation which deals with the problems associated with surrogacy and at the same time upholds the reproductive rights of a woman and freedom of choice available to an individual. Commercial surrogacy should hence, be encouraged. The rights of women and children should be protected through framing of laws which will cover all the present loopholes, rather than which will violate the fundamental rights of persons.