TABLE OF CONTENTS
INDEX OF AUTHORITIES…….………………………………….………….….3
Statutes Referred…………………………………………………………….………3
Cases Referred……………………………………………………………….…….3
ABSTRACT….……………………………………………………………………4
INTRODUCTION………………….……………………………………….….….4
RESEARCH METHODOLOGY………………………………………….…..……6
Aims and Objectives……………………………………………………….………..6
Scope and Research Pattern.……………………………………………….………..6
Acknowledgement………………………………………………………….………..6
1. THE SURROGACY REGULATION BILL 2019………………………………7
2. ALTRUISTIC SURROGACY v COMMERCIAL SURROGACY……………..7
3. CERTIFICATE OF ESSENTIALITY- SOCIETAL STIGMA ………………….8
4. EXCLUSION AT PLAY………….…………………………………………….10
5. SELECT COMMITTEE RECOMMENDATIONS- THE PATH AHEAD ……11
CONCLUSION……………………………………………………………………12
BIBLIOGRAPHY…….……………………………………………………….….13
INDEX OF AUTHORITIES
Bills and Reports Referred:
· ART Bill, 2008
· 228th Report by Law Commission of India, 2009
· The Surrogacy (Regulation Bill, 2016)
· The Surrogacy (Regulation Bill, 2019)
· Select Committee Report 2020
Cases Referred:
Baby Manji Yamada v Union of India, Writ Petition (C) No. 369 (2008) …………..…………5
Jan Balaz v Anand Municipality, Civil Application No. 3020 (2010).………………………..5
K. Kalaiselvi v. Chennai Port Trust, Writ Petition No. 8188 of 2012 (2013)..……..…………8
K.S. Puttaswamy vs Union of India, Writ Petition (Civil) No 494 of 2012 (2018)…………..9
Suchita Srivastava v Chandigarh Administration, Civil Appeal No. 5845 (2009)……………..9
Devika Biswas v Union of India, Petition No. 95 (2012)……………………………………..9
Srinivas Theatre v. State of T.N., AIR 999 (1992)………………….……………………….10
ABSTRACT
Parenthood via surrogacy remains a contentious crossroad with the perennial balancing of women’s right to bodily autonomy and the state in its patriarchal disposition trying to prevent their exploitation. India’s Anand district in Gujarat has found its identity as the ‘cradle of the world’ due to the cheap availability of surrogate mothers who have no educational and legislative backing. In order to regulate surrogacy and the concept of ‘renting the womb’ the Surrogacy (Regulation) Bill, 2019 was introduced in the Lok Sabha. The bill banned commercial surrogacy and allowed only altruistic surrogacy with certain restrictions and legal criteria governing its ambit. At such a crucial juncture, the rhetoric around women’s right to make reproductive choices as well as act without the imposition of society-based moral standards has gained prominence. This paper dwells on the societal impact of the Surrogacy (Regulation) Bill, 2019 on the lives of women who are trying to grasp the constantly evolving legislative demography around the mystified realm of surrogacy regulation. Further, it elaborates on the discriminatory scars that the bill has imposed on single women parents and the LGBTQIA+ community.
Keywords- renting the womb, Surrogacy (Regulation) Bill 2019, bodily autonomy, reproductive choices
INTRODUCTION
Surrogacy is an arrangement whereby a woman (the surrogate mother) agrees to undergo pregnancy and bear a child for another person or persons, who will become the child’s parent(s) after birth. However, in reality surrogacy isn’t just an exchange, it is a scenario involving dynamic ethical, legal, medical, and emotional dilemmas. Commercial surrogacy has slowly spread in India and according to the Confederation of Indian Industry (CII), generates more than $2 billion annually.[1] It was legalized in 2002 and India soon became a hub of Assisted Reproductive Technology techniques leading to mass exploitation of destitute and illiterate women. In order to protect the interests of these women the Indian Council of Medical Research (ICMR) proposed the ART Bill, 2008 which was amended time and again but has failed to pass. The loopholes in legislation pertaining to surrogacy were highlighted through the case of Baby Manji Yamada v UOI (2008)[2] wherein a Japanese couple’s surrogate baby was struggling to gain nationality and identity in cross-country jurisdiction. The historic case provided legal validation to commercial surrogacy and the absence of laws governing it was further reiterated in Jan Balaz v Anand Municipality (2010).[3] However, shocked by the unsafe yet large-scale commercial practice the Law Commission of India in its 228th report (2009)[4] recommended the passing of a law to regulate surrogacy. Following this, surrogacy procedures by foreign single parents and homosexual couples was banned in 2013 and finally the year 2015 bought about a complete ban on commercial surrogacy by foreign nationals. The plight and vulnerability of economically weak women involved in commercial surrogacy moved advocate Jayashree Wad[5] to file a PIL seeking a blanket ban on this unethical practice. Under immense pressure and public scrutiny, the Lok Sabha passed the Surrogacy (Regulation) Bill, 2016 for legalizing domestic altruistic surrogacy but the bill could not be passed owing to the adjournment of Parliamentary session. On the global scenarios, the 37th session of the United Nations Human Rights Council (UNHRC) in 2018, the Special Rapporteur Maud de Boer-Buquicchio approved a report on surrogacy and stressed on the focus to be on the ‘rights of child rather than the right to child’.[6] In 2019 another Surrogacy (Regulation) Bill was proposed and passed by the Lok Sabha with a voice vote on 5th August. However, the Rajya Sabha referred the bill to a Select Committee which submitted its report in 2020 with fifteen recommendations. Currently, the transformation of the bill into an act has taken a backseat due to the Covid-19 pandemic.[7]
RESEARCH METHODOLOGY
Aims and Objectives
The main aim of this research is to analyse the position of women in the Surrogacy Regulation Bill, 2019 and compare it with the 2016 version as well as highlight the changes ushered in by the 2020 Select Committee Report. Further, it also explores the tussle between the notions of patriarchy and women’s autonomy in the various legislative pieces. The research paper also dwells on the misplaced and discriminatory position of the LGBTQIA+ community in the various bills and restricted stance on binaries.
Scope and Research Pattern
The research paper is broadly divided into three main parts. It begins with an introduction to altruistic and commercial surrogacy in India as well as critiques of both options. The second part dwells on the stigma towards ‘infertility’ in India and how the legislation has completely avoided the societal purview of surrogacy in the language of the law. Lastly, it provides a glimpse of how the Bills have excluded the LGBTQIA+ community, single parents, and live-in couples from its ambit and institutionalized a discriminatory and narrow approach on parenting as well as familial bonds. Different judgments from High Court, as well as Supreme Courts, have been cited and used to back the claims made throughout the paper. Arguments are backed by legal provisions, feminist perspectives, established professional opinions, and several reports submitted by different Ministries in India.
Acknowledgment
The researcher would like to thank the authors of the articles, newspaper editorials, as well as reports, referred for the completion of this.
SURROGACY REGULATION BILL, 2019
The Surrogacy (Regulation) Bill, 2019 was a harbinger of hope for several surrogate mothers across India who had been ruthlessly exploited in lure of menial payments for producing babies who are treated as ‘saleable commodities.’ The elite and profit oriented medical professionals had trapped women in a vicious cycle of ‘baby production’ without covering the risks that they are subjected to. This has been backed by a survey from the Centre for Social Research which revealed that surrogate mothers majorly are overwhelmingly poor with minimal education and are often pressurised by families. However, the 2019 Bill feel short of several expectations and created a chain of controversies around the provisions it articulated.
ALTRUISTIC SURROGACY v COMMERCIAL SURROGACY
The Surrogacy (Regulation) Bill 2019, Section 35[8] prohibited commercial surrogacy done for monetary gains and advocated for altruistic surrogacy wherein only the medical expenses and insurance coverage of the surrogate mother is provided for. Commercial surrogacy is often believed to be as ‘coercion by poverty’ and the only choice for economically weak women to gain financial help.[9] Radical modern philosophers consider surrogacy as a process to transform women into machines for producing babies wherein surrogate mothers are often compared to prostitution. Further, Chapter 3 mandates that the surrogate mother must be a close relative of the intending couple who should be Indian and married for five years with a medical certificate stating one or both of them as infertile. Further, it provides age brackets of 23-50 years for the female partner and 26-55 years for the male partner, without any surviving child (unless the child is physical or mentally or fatally challenged).[10] This provision in itself is contradictory, on one hand it aims to place the surrogate mother at an independent position and on the other it imposes the requirement of marriage and thus indirectly implicates the narrow conception of ‘family’.[11] These standards also highlight the patriarchal hierarchies that are entrenched in legislations and the narrow societal purview. Section 4 also states that the surrogate mother cannot provide her own gametes so that no genetic ties exist between her and the new-born and on a later stage she has no claim on custodial or parentage rights. Thus, the bill not only ignores the plurality of kinship but also degrades the surrogate mother to a mere ‘gestational carrier’.[12] It also ignores basic maternity benefits to the surrogate mother despite precedence from previous cases like K. Kalaiselvi v. Chennai Port Trust, 2013.[13] The altruistic model imposes high paternalistic moral standards on the surrogate mother and expects her to bear the physical, metal, and emotional pains of surrogacy out of love and compassion. These surrogate mothers are not only denied of their legitimate income but would also be unwilling to bear babies without gains and thus deny a large proportion of intending couples the right to parenthood. Further, such familial arrangements might end up in several women being pressurized by their kin to perform surrogacy and succumb without any real consent. The bill could have been articulated in a liberal background and opted for the compensatory model of surrogacy which also fulfils the career and income loss which the surrogate mother needs to bear while surrogacy.
CERTIFICATE OF ESSENTIALITY – SOCIETAL STIGMA
Section 4, sub clause (iii) elucidates upon the requirement of a ‘certificate of essentiality’ issued by the appropriate authority after being provided with appropriate reasons that are recorded in writing. In addition, a certificate of proven infertility for either or both the members needs to be produced from a District Medical Board, an order of parentage and custody of the surrogate child passed by a Magistrate’s court and insurance coverage for a period of 16 months that covers postpartum delivery complications.[14] The bill completely ignores the sensitivity, stigma, and psychological implications that the word ‘infertility’ connotes. The requirement of an ‘essentiality certificate’ not only carries the inherent societal shame but is also violative of the privacy of the intending couple. This mandate also leads to the disclosure of the parties involved in the process of surrogacy i.e., the surrogate mother and the intending couple as their names would be disclosed. Their identities would not only be easily available to their acquaintances and family but also be revealed to third parties like statutory authorities. The landmark judgment in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors[15] held that the right to privacy is protected as a fundamental right under Articles 14, 19, and 21 of the Constitution of India. Thus, the provisions of the bill are violative of the fundamentals enshrined in the Constitution itself and to whom every Indian citizen is entitled. The act provided the sole right and consent of the surrogate mother in cases where abortion of the foetus is required. This helps her to act in the well-being of her bodily autonomy and not be coerced to undertake life-risking pregnancies by the intending couple. The 2019 Bill ignores the case wherein the pregnancy might pose a risk to the mother’s life and bases its structural foundation on only ‘infertility’. While policy formulators argue that morality renders surrogacy as the last option and the joy of having one’s own child is incomparable, yet this thinking stems from a patriarchal discourse. The SC in the cases of Suchita Srivastava v Chandigarh Administration[16] and Devika Biswas v Union of India[17] held that the right to make reproductive choices is in the ambit of Article 21 of the Indian Constitution which guarantees personal liberty. The State should evolve its laws from the rights-based discourse and empower women with autonomy regarding their reproductive rights and choices.
EXCLUSION AT PLAY
The Surrogacy (Regulation) Bill 2019 allows surrogacy procedures only for married couples with male and female partners and provides no parental rights to live in couples, same-sex couples, single parents, and the LGBTQIA+ community. This Bill comes at a time when the definition of ‘family’ is not limited to gender identities and roles of the patriarchal construct. This modern perception has been acknowledged by the Supreme Court through the recognition of live-in relationships, decriminalization of homosexuality, and inclusion of LGBTQIA+ rights under universal human standards.[18] The Law Commission’s Report No. 228 explicitly mentioned the Israel gay couple’s case thus validating that single or gay parents are eligible custodial parents. The ministry drafting the bill raised several orthodox contentions to uphold its stance like the raising a child is the responsibility of two responsible partners and a single person is not enough to provide for both. Another fickle argument was that these parties require a third-party donor which in the future might create custodial and parentage battles. The ‘right to find a family’ is an internationally acknowledged human right[19] and any provision in violation of this is against global humanitarian standards. Further, the LGBTQIA+, live-in couples, and single parents are being discriminated against and their fundamental right to equality is being infringed. The Supreme Court has also mentioned the role of the law to create a more equitable society and remove traces of discrimination in the case of Srinivas Theatre v. State of T.N., 1992.[20] The above-mentioned exclusion stands against the basis of public policy and instead legalises discrimination on several grounds.
The Surrogacy Regulation Bill, 2019 does not base itself on modern moral grounds and is full of several lacunas. These evident discrepancies and loopholes also uphold a certain norm of behaviour towards certain class of citizens that is sanctioned by law itself.
SELECT COMMITTEE RECOMMENDATIONS – THE PATH AHEAD
The Rajya Sabha had recommended the Surrogacy (Regulation) Bill 2019 to a Select Committee. Headed by Bhupender Yadav the Committee will travel to Gujarat, Hyderabad, and Mumbai in order to shape deliberations on the Bill.[21] The Select Committee suggested and tabulated several changes to make the Bill broader and more approachable. In order to increase the number of willing surrogates and decrease familial pressure on surrogates the report suggested to change the provision of ‘close relative’ to ‘any willing woman’. This major change in altruistic surrogacy is a must to avoid family dynamics to come into play and put undue pressure on less powerful and autonomous members of the family like women and young girls. The Committee also tried to ensure the utmost health welfare of the surrogate mother and advanced to increase the insurance cover from 16 months to 36 months and thus cover post-pregnancy ailments as well. It was further proposed to make to surrogacy a less time consuming and tedious affair by omitting the five years wait period before availing surrogacy to lessen the agony of the intending couple. It has also included provisions for single women, widows, and divorcees to have the right to surrogacy and embrace parenthood as autonomous individuals. On another note, the Committee recommended to pass the ART Bill before and then accordingly put forth the Surrogacy Bill. The Select Committee has also proactively explored the possibility of compensatory surrogacy models and the inclusion of LGBTQIA+ community, live-in and same sex couples.
Flowing from the Select Committee report, the Union Cabinet approved the Surrogacy (Regulation) Bill 2020 which currently awaits moving from the Rajya Sabha and obtain presidential assent. The bill deleted the clause containing the definition of ‘infertility’ as well as took the five-year waiting period into close scrutiny. The 2020 Bill also widen its ambit and adopts a modern approach thereby including Indian single woman (widows and divorcees) between the age of 35 and 45 years. Further, it makes registration compulsory with appropriate authorities for surrogacy clinics in order to protect the exploitation of surrogate mothers. The 2020 Bill has also involved state and central governments by proposing to establish National surrogacy board (NSB), and State surrogacy board (SSB), who would supervise surrogacy clinics and draft policies.[22]
CONCLUSION
The legislative process that churned the Surrogacy (Regulation) Bill 2019 was entirely based on majority stereotypical notions and patriarchal approaches. Feminists, public policy makers, and legal scholars had drafted detailed responses to the successive versions of the bill and the ever-consistent discriminatory provisions. The Bill needs to be encompassing of the diversity of motherhood and parenthood as well as adapt to the modern legal changes. The surrogate mother community for whose welfare the Act was constituted wasn’t even approached and asked about its demands. This bill is indeed the beginning of a 100-mile journey to ensure justice and bodily autonomy of surrogate mothers in Indian society. However, what has been achieved till now is woefully inadequate to include the concept of pluralism in the mainstream parenthood institutions and legal framework will open up more latitude for incorporating genuine demands. The government has also been willing to incorporate civil demands and articulate the surrogacy regulations in the best possible accommodating manner. The Surrogacy Regulation Bill, 2020 will go a long way in protecting surrogate mothers as well as the intending couples and providing them their due respect in society.
BIBLIOGRAPHY
Articles Referred
- Centre of Social Research. ‘Surrogate Motherhood Ethical or Commercial’ (accessed 21 October 2021).
- Law Commission of India, 2009. ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy’ Economic Times (accessed 20 October 2021).
- Journal of International Women’s Studies, 2021. ‘The Surrogacy Regulation (2019) Bill of India: A Critique’ (accessed 22 October 2021).
- Times of India Blog, 2021. ‘Surrogacy Provisions in India’ (accessed 21 October 2021).
- LSE Human Rights, 2021. ‘India’S New Surrogacy Regulation Bill Falls Short Of Protecting Bodily Autonomy And Guaranteeing Reproductive Liberty’ (accessed 17 October 2021).
- International Journal of Law in Context, 2021. ‘One Step Forward or One Step Back? Autonomy, Agency and Surrogates in The Indian Surrogacy (Regulation) Bill 2019’ (accessed 18 October 2021).
- Hindustan Times, 2020. ‘Select Committee Report on Surrogacy Bill Tabled in Parliament, Single Women Included’ (accessed 19 October 2021).
- Latest Laws, 2020. ‘Surrogacy (Regulation) Bill Of 2020: Balancing Interests’ (accessed 20 October 2021).
Reports, Bare Acts and Status Referred:
- Parliament, (2019). The Surrogacy (Regulation) Bill, 2019. India: Government of India (Bill No. 156 of 2019).
- Parliament, (2016). The Surrogacy (Regulation) Bill, 2016. India: Government of India (Bill No. 257 of 2016)
- Parliament, (2020). The Surrogacy (Regulation) Bill, 2020. India: Government of India (Bill No. 88 of 2020).
- Select Committee Report, Ministry of Law, 2020. (accessed 21 October 2021)_https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/70/137/1_2020_2_17.pdf.
Shreya Tiwari
O.P. Jindal Global University
[1] ‘Surrogate Motherhood Ethical or Commercial’ (Centre for Social Research 2019) <http://www.womenleadership.in/Csr/SurrogacyReport.pdf> accessed 21 October 2021.
[2] Baby Manji Yamada v Union of India [2008], Writ Petition (C) No. 369 of 2008.
[3] Jan Balaz v Anand Municipality [2010], Civil Application No. 3020 of 2008.
[4] AR Lakshmanan, ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy’ (Law Commission of India 2009) <https://lawcommissionofindia.nic.in/reports/report228.pdf> accessed 20 October 2021.
[5] ‘Supreme Court Asks Government to Explain Stance on Commercial Surrogacy’ (The Economic Times, 2015) <https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-asks-government-to-explain-stance-on-commercial-surrogacy/articleshow/46378518.cms?from=mdr> accessed 17 October 2021.
[6] Astha Srivastava, The Surrogacy Regulation (2019) Bill Of India: A Critique (22nd edn, Journal of International Women’s Studies 2021) <https://vc.bridgew.edu/cgi/viewcontent.cgi?article=2364&context=jiws> accessed 18 October 2021.
[7] ‘The Surrogacy (Regulation) Bill, 2019’ (PRS Legislative Research, 2019) <https://prsindia.org/billtrack/the-surrogacy-regulation-bill-2019> accessed 22 October 2021.
[8] Surrogacy Regulation Bill [2019], Section 35, http://164.100.47.5/committee_web/BillFile/Bill/70/137/156-C%20of%202019_2019_12_12.pdf.
[9] Shreya Kumari, ‘Surrogacy Provisions in India’ (Times of India Blog, 2021) <https://timesofindia.indiatimes.com/readersblog/legal-writing/surrogacy-provisions-in-india-35429/> accessed 21 October 2021.
[10] Ibid 7.
[11] Eshaan Sonak and Sanvi Bhatia, ‘India’S New Surrogacy Regulation Bill Falls Short of Protecting Bodily Autonomy and Guaranteeing Reproductive Liberty’ (LSE Human Rights, 2021) <https://blogs.lse.ac.uk/humanrights/2021/04/21/indias-new-surrogacy-regulation-bill-falls-short-of-protecting-bodily-autonomy-and-guaranteeing-reproductive-liberty/> accessed 17 October 2021.
[12] Swati Gola, One Step Forward or One Step Back? Autonomy, Agency and Surrogates in The Indian Surrogacy (Regulation) Bill 2019 (17th edn, International Journal of Law in Context 2021).
[13] K. Kalaiselvi v. Chennai Port Trust [2013], Writ Petition No. 8188 of 2012.
[14] Surrogacy Regulation Bill [2019], Section 4, http://164.100.47.5/committee_web/BillFile/Bill/70/137/156-C%20of%202019_2019_12_12.pdf.
[15] K.S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors [2018], Writ Petition (Civil) No 494 of 2012.
[16] Suchita Srivastava v Chandigarh Administration [2009] Civil Appeal No. 5845 of 2009.
[17] Devika Biswas v Union of India [2012], Petition No. 95 of 2012.
[18] Ibid 12.
[19] The International Covenant on Civil and Political Rights, Art. 23(2), https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
[20] Srinivas Theatre v. State of T.N. [1992], AIR 999.
[21] ‘Select Committee Report on Surrogacy Bill Tabled in Parliament, Single Women Included’ (Hindustan Times, 2020) <https://www.hindustantimes.com/india-news/select-committee-report-on-surrogacy-bill-tabled-in-parliament-single-women-included/story-cfd54Uiiol2bDMHndcHplN.html> accessed 19 October 2021.
[22] Sidak Singh Kalra, ‘Surrogacy (Regulation) Bill Of 2020: Balancing Interests’ (2020) <https://www.latestlaws.com/articles/surrogacy-regulation-bill-of-2020-balancing-interests/> accessed 20 October 2021.