With an estimated value over 2 billion USD[i], India was a flourishing market for commercial surrogacy until now, the new surrogacy regulation bill puts a blanket ban on any type of commercialization of surrogacy to protect a poor woman and allows only Altruistic surrogacy. When the surrogate mother is paid for her service, this is classified as commercial surrogacy and when the surrogate mother is not compensated for anything besides the medical costs incurred this is known as Altruistic surrogacy.
The proposed bill is unreasonably stringent and it also doesn’t qualify the Golden Triangle test. This test is devised to ensure that a law when made doesn’t violate the fundamental rights of the citizens. The triangle comprises of Article 14, 19 and 21 to check the constitutional validity of the law made where basic tenets of equality, freedom and liberty are protected.
The author aims to conclude whether clauses 2(g), 3(ii), 4(b) & 4(c) – violate fundamental rights guaranteed in Part III of the Constitution of India, while critically analysing the consequences of the ban and probable outcome of the said blanket ban.
1. Clause 2(g) of the Surrogacy regulation bill Violate Part III of the Constitution.
Clause 2(g) of the bill defines a couple – the bill gives the binary definition of a couple; only a married Indian male and female can pursue altruistic surrogacy, this definition excludes people based on gender, nationality, marital status and sexuality which shows that this is a step back for the Indian social setting, this restricted definition of a couple is problematic and also violates Article 14 and 21.
After the landmark judgment of Suresh Kumar Koushal v. Naz foundation[ii] precedent for a gender-inclusive approach was set. This bill excludes any non- binary gender from the privilege of having a child if incapable to have one biologically. Discrimination based on Gender is Prima Facie violative of Article 14.
The bill has created unreasonable classification and eliminating a certain population of minority community just reinforces the stigmatized outlook of the society towards a minority community.
If a person is allowed to have a child through the process of adoption there is no reason why the same person may not be fit to have a child through surrogacy. Such a distinction may also fall foul of Article 14 of the Constitution[iii].
“Surrogacy allows infertile couples, single people and members of the LGBTQ+ community to become parents when they may not be able to have children otherwise.[iv]” Baring everyone except heterosexual Indian citizen couple is violative of Article 14 of the Constitution of India.
Denying the LGBTQ+ community, couples in live-in relations and people desiring to be a single parent attracts Article 14 because such denial discriminates against the minorities.
2. Clauses 3(ii), 4(b) and 4(c) of the Surrogacy regulation bill Violate Part III of the Constitution.
These three clauses of the surrogacy regulation bill when combined have an effect of a blanket ban on the surrogacy market.
Clause 3(ii) states that no surrogacy clinic or any other type of registered medical practitioner or any other person shall not conduct, offer, promote, undertake or associate with any form of commercial surrogacy.
4(b) states that surrogacy is allowed only when for an altruistic purpose.
4(c) when it is not done for commercial purposes.
At first glance, it seems like the act is nothing but harmless and in it benefits the society but after giving it a thorough read it becomes obvious that it’s entangled with flaws and lacunas.
(a) The validity of a blanket ban concerning Article 19(1)(g):
A19(1)(g) gives citizens of the country the right to practice any profession and carry on any trade, business or occupation – it aims to include all avenues and modes through which one can earn their livelihood.
When a ban is put on a profession which feeds and sustains several homes it deprives them of their right to livelihood. Any Profession as long as it is carried out with human dignity should be allowed, the trade can be regulated and the evils of the trade can be mitigated[v].
These women belong to the lower economic strata of the society in most cases they are the only source of income and surrogacy as a means of occupation helps them earn bread for their families.
A ban doesn’t mean that people stop practicing and participating in the activity. It only creates a window for people to do the same but illegally and exploit the people involved.
This ban will create a whack-a-mole situation with regards to the surrogacy market arena where these women will be exploited and swindled hence, it only seems logical to regulate the market.
This shambolic law not only deprives a citizen of practicing a profession which is not res extra commercium it also creates an opportunity for a surrogacy black market to flourish.
(b) The validity of a complete ban on commercial surrogacy concerning Article 21:
This blanket ban imposed by the aforementioned clauses also violates Article 21 which ensures the right to life and liberty. In Olga telefilms v. Bombay municipal corporation[vi], the supreme court identified and interpreted that the Right to livelihood is well within the meaning and ambit of Article 21.
Depriving an individual of their means of livelihood is a clear violation of their fundamental right, for several women, this is the only means to earn for themselves and their family and to find an alternative means to earn in a country like India is a tedious and an extremely difficult task since these women are not educated or skilled in other ways.
Right to privacy is an integral part of Article 21 and within its meaning court has also included the right to reproductive autonomy[vii].
In, B K Parthasarathi v Government of Andhra Pradesh[viii], the nine judged SC bench recognized and affirmed that it is an individual’s right to make decisions about the birth of their child along with this in, Baby Manji Yamada v. UOI[ix], the SC recognized surrogacy as a means of reproduction.
The decision to have a child through any desirable method lies with the parents and states infringement in the decision-making process takes away the parent’s right to take an autonomous decision and violates their fundamental rights.
The ban on commercial surrogacy affects the right to livelihood of women who wish to become surrogates and instead expect surrogates to perform reproductive labour without compensation (Rajya Sabha 2017: para 5.19)[x].
By interfering with the reproductive rights of the individual, the proposed law infringes upon the “right to found a family” enshrined in Article 16 of the Universal Declaration of Human Rights[xi].
This total blanket ban will have adverse consequences such as making a way for the black market to persist where there wouldn’t be any laws or regulations and these women would be further exploited and because this ban will not stop surrogates from engaging in commercial surrogacy as they require the monetary support moreover expecting a woman to engage in surrogacy without awarding her any monetary compensation is unreasonable.
Banning commercial surrogacy doesn’t protect these women it just further pushes the practice underground.
One scholar noted that “[a] global ban on surrogacy would simply move surrogacy arrangements to the black market, thereby exposing the parties to a greater risk of exploitation.[xii]“
An alternative approach to the blanket ban would be to stringently regulate the market, make laws to tackle the existing issues and pronounce guidelines on how to operate commercial surrogacy while ensuring the protection of the surrogate mothers.
Completely shutting down the commercial surrogacy market from any perspective doesn’t seem like a viable option. “Seen from a material angle the practice of Commercial Surrogacy does not cause the society or parties involved in such an agreement any substantial loss”[xiii].
“Those who are morally opposed to surrogacy often justify their arguments for banning compensated surrogacy by focusing on cases of deaths or abusive conditions in which surrogates work. We believe that these outcomes can be avoided through adequate legislative norm-setting and regulatory oversight.[xiv]”
Surrogate themselves don’t feel what they’re doing is morally or ethically wrong on the contrary they believe that what’s the harm if both the parties are benefiting, they get their income and the couple gets the joy of becoming parents they consider their actions to be nothing but noble. “Every surrogate we met felt that she was not doing anything wrong and that surrogacy should be legal because everyone benefits from it.[xv]”
An alternative regulatory bill will ensure the better safekeeping of the surrogate mother to make sure that their health is prioritised, they are being paid agreed upon wage and that they are not being exploited because a ban as stated before will only create more issues and pave the way for a black market.
Conclusion:
One can’t overlook the facts that this bill is violative of fundamental rights. If this bill becomes an act it will create a quagmire where more problems will arise along with the pre-existing issues.
Allowing uncompensated surrogacy with a close relative and discarding compensated surrogacy will be a difficult situation to monitor, it seems more feasible to allow commercial surrogacy but with adequate laws and regulations.
This complete ban will give rise to the inevitable black market which will be highly disadvantageous to the surrogate mothers, children and the intending parents, it will harm the ones the law intents to protect.
While the intentions are of the lawmakers are well placed the provisions aren’t[xvi].
Law, when created, should be well balanced and sought to obviate any problematic outcome. This bill if made an act would violate the main constitutional test known as the ‘golden triangle test’ devised to keep in check the fundamental rights of the citizens and to ensure that they are not being violated by the state.
These laws just reinforce the moribund mindset and create a cultural setback, after progressive judgements such acts seems contrary to the social progression of the country. Every attempt to bring the minority community at par seems futile and installs an invisible cultural barrier. In a diverse country like India, a law should be curated with keeping in mind that it should benefit all and shouldn’t deprive a certain community and benefit only some.
Justice Khanna referred to the Constitution as “the vehicle of the life of a nation”[xvii]. It incorporates an individual’s equality, freedom and personal liberty and this act has breached these principles and taken our country a step back rather than forward.
[i] Editorial, “why surrogacy is necessary”, The Hindu, August 20, 2016.
[ii] (2014) 1 SCC 1.
[iii] Dr Aparna Chandra and Dr Mrinal Satish, Memorandum on surrogacy regulation bill (2016), NLU Delhi & Cornell University Law School, April 13, 2017, (June 18, 2020, 08:37 PM) https://nludelhi.ac.in/download/2018/Surrogacy%20Submission.pdf.
[iv] Benefits of Surrogacy for Everyone Involved, (July 7, 2020, 06:39 PM) https://surrogate.com/?s=benefits+of+surrogacy++for+everyone+involved+
[v] V N Shukla, Constitution of India 197 (13 ed. 2019), EBC Publishing (P) Ltd, Lucknow.
[vi] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
[vii] K.S Puttaswamy v. UOI, (2015) 8 SCC 735.
[viii] B K Parthasarathi v Government of Andhra Pradesh (2000): ALD, AP, 1, p 199.
[ix] Baby Manji Yamada v. Union of India & Anr., (2008) 13 SCC 518.
[x] Nikita Kaitan & Arijeet Ghosh, the womb of one’s own: Privacy and reproductive rights, EPW, Oct 13, 2017, (July 5, 2020, 07:58 PM) https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights
[xi] Simran Aggarwal And Lovish Garg, the new surrogacy law in India fails to balance regulation and rights, LSE Blogs – Human Rights, 2016. (June, 4, 2020, 06:14 PM) (https://blogs.lse.ac.uk/humanrights/2016/11/23/the-new-surrogacy-law-in-india-fails-to-balance-regulation-and-rights/).
[xii] Katarina Trimmings & Paul Reid Beaumont, International Surrogacy Arrangements: An Urgent
Need for Legal Regulation at the International Level, 7 J. PRIV. INT’L L. 622,647 (2011).
[xiii] Ayan Guha & Neha Chauhan, Regulation of Commercial Surrogacy in India: Some Suggestions, 6 Indian J.L. & Just. 92 (2015).
[xiv]Supra, Note 3.
[xv] Id, page 4, para 5.
[xvi] Supra, Note 13.
[xvii] Priyam Goyal, Constitutional golden triangle vulnerable to novel corona attack, legal insider, (July 7, 2020, 07:54 PM) https://thelegalinsider.com/index.php/2020/05/27/constitutional-golden-triangle-vulnerable-tonovel-corona-attack/
This article has been written by Ananya Singh, 3rd Year BA-LLB student at NMIMS, school of law, Navi Mumbai.
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