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Review Of Surrogacy Regulation Bill

The debate began in 2008, when a Japanese medical couple commissioned a baby in a small Gujarat town. A healthy baby girl was born to the surrogate mother. By that time, the couple had divorced, and the infant was both parentless and stateless, stuck in the middle of two legal systems. The child is now in Japan with her grandmother, but she does not have Japanese citizenship because surrogacy is illegal there.

The Supreme Court of India defined surrogacy and ruled that it is permissible in the landmark case of Baby Manji Yamada v. Union of India. However, areas such as commercial surrogacy have been left unregulated, and are thought to be the crux of the problems associated with surrogacy in India. The 2020 Bill was proposed with the goal of closing such loopholes.

The bill was introduced in Parliament in 2016. However, due to the dissolution of Parliament, it was unable to pass. It was revived in 2019, and it was accepted by the Lok Sabha and referred to the Rajya Sabha's Select Committee. The Union Cabinet approved the 2020 Bill, which contained all of the Select Committee's recommendations.

The Bill allows only altruistic surrogacy (by relatives) for married couples. It seeks to put an end to commercial surrogacy payment to a surrogate mother is punishable by up to five years imprisonment and also has safeguards built in against sex selection of the baby. The Bill proposes to allow altruistic, ethical surrogacy to intending infertile Indian married couples between the ages of 23-50 (female) and 26-55 (male).

It limits the option to only legally married childless couples who have been trying for a child for at least five years. The commissioning couple cannot have a surviving child either biological or adopted, except when they have a child who is mentally or physically challenged or suffers from a life-threatening disorder with no permanent cure.

Aside from showing that she is a close cousin of the couple seeking surrogacy, the surrogate mother must be married with a kid of her own, be between the ages of 25 and 35, and have never been a surrogate mother before. According to the bill, any child born through a surrogacy procedure is the biological child of the intending couple and is entitled to all of the same rights and privileges as a natural kid.

What does the Bill aim to do?
It aims to create operational standards and institutional infrastructure to safeguard the legitimate interests of those seeking a child through surrogacy. The goal of this bill is to create regulations in the sphere of surrogacy and to provide clarity for prospective parents and surrogate moms. It also intends to outlaw commercial surrogacy entirely in order to put a stop to unethical practices.

The bill aims to serve as ethical, moral, and social legislation that safeguards a surrogate mother's reproductive rights as well as the rights of the child born through surrogacy. It will also aid in the development of regulatory frameworks for surrogacy monitoring. The main objective of the Bill is to prevent exploitation of surrogate mothers, abandonment of children born out of surrogacy and the import of human embryos and gametes which have been reported over the years.

Why was the Bill necessary?
There have been multiple allegations of surrogate mothers being exploited, including women who are kept in "hostels" throughout pregnancy and are not permitted to contact their families, as well as women who do it repeatedly for a pittance, putting their own bodies at risk. This is something that the bill aims to change. Surrogacy is a $2.3 billion industry, according to the CII, which is fueled by a lack of regulation and poverty.

In 2012, an Australian couple who had twins through surrogacy decided to keep one and reject the other. A single mother of two from Chennai opted to become a surrogate mother in the hopes of using the money to open a shop close to her home. She gave birth to a healthy kid, but her expectations for herself were dashed. She earned only about Rs.75,000, with a 50% cut going to an auto-rickshaw driver who acted as a middleman. She didn't have enough money after returning the debts. Yuma Sherpa, 26, died on January 29, 2014, after undergoing a surgical operation to extract eggs from her body as part of a private facility in New Delhi's egg donation programme.

These incidents demonstrate a complete exploitation for the surrogate mother's and child's rights, prompting a number of public interest lawsuits in the Supreme Court to regulate commercial surrogacy. The Law Commission of India's 228th report also urged that a proper regulation be enacted to prohibit commercial surrogacy and enable ethical altruistic surrogacy to needy Indian citizens.

What maternity benefits would a commissioning mother be entitled to?

This is not taken into account in the bill. It addresses the rights and duties of commissioning parents and surrogate mothers toward each other and the infant, but not the commissioning parent's employer's entitlements. These are protected by labor regulations; nevertheless, the law on maternity benefits does not account for the possibility of a woman becoming a mother before giving birth.

Provisions under Surrogacy Regulation Bill 2020

The 2020 Bill has widened the scope by allowing any married and willing woman between the age of 25 to 35 years having a child of her own can act as a surrogate mother.

To put it in a nutshell, the striking features of the Bill are as follows:

  • The Bill allows the practice of ethical altruistic surrogacy
  • The Bill allows an 'willing woman' to be a surrogate mother;
  • The period of infertility has been reduced to one year as compared to the previous Bills which suggested five years for the same;
  • The insurance coverage for surrogate mothers has been extended to a period of 36 months;
  • Through the establishment of National Surrogacy Board at the central level and State Surrogacy Board and appropriate authorities in states and Union Territories, the Bill seeks to regulate the practice of surrogacy and monitor it closely;
  • The Bill makes it mandatory for the couple to obtain a certificate of essentiality and also a certificate of eligibility for surrogacy;
  • It proposes for the prohibition of commercial surrogacy including sale and purchase of human embryo and gametes;
  • Live-in couple, divorced women, widows, non-resident Indians (NRIs), persons of Indian origin (PIO), overseas citizenship of India (OCI) etc. have been covered under the Bill.

Surrogacy has grown at an exponential rate over the previous two decades. The 2020 Bill was presented with the goal of efficiently regulating surrogacy, prohibiting commercial surrogacy and allowing ethical surrogacy. Any bill must pass the Golden Triangle Test in order to gain widespread acceptance.

Certain elements of the Bill, however, are in violation of constitutional prohibitions. A closer examination indicates that the Bill fails to pass the Hon'ble Supreme Court's 'Golden Triangle Test.' The current section sheds information on the Bill's constitutional viability.

Article 14:

Article 14 of the Indian Constitution guarantees every citizen 'equality before law and equal protection of laws to all persons.' It forbids class legislation but permits reasonable classification. The Hon'ble Supreme Court laid down two tests which must be satisfied to pass the test of reasonable classification i.e. intelligible differentia and rational nexus.

Further, the traditional concept of equality was broadened in the case of E. P. Royappa v. State of Tamil Nadu wherein it was held that equality is a dynamic concept and its dimensions cannot be cribbed, cabined, and confined with traditional doctrinaire limits. When the classification is not on the basis of intelligible differentia and has no nexus with the object sought to be achieved, then the differentiation is deemed to be invalid.

Recently, the Supreme Court struck down Section 377 of the Indian Penal Code i.e. it decriminalized consensual sexual relations between two adults of any sexuality. However, the Bill goes against this judgment. It denies the rights of homosexual couples to commission a child and refuses to acknowledge these couples as 'legitimate'. Furthermore, the Supreme Court recognized transgenders as third genders in the leading case of National Legal Services Authority v. Union of India. But the Bill is silent on providing equal rights to the third genders. The grounds mentioned in the Bill are very narrow and it disentitles same-sex couples and transgenders from commissioning surrogacy.

There is no reasonable nexus of allowing altruistic surrogacy to Indian citizens who are married, widowed or divorced and exclusion of others with the object of the Bill. A closer look at the Bill reveals that the classification is based on marriage and such a classification is not reasonable under Article 14 of the Indian Constitution. Even more, when single parents i.e. non-married individuals are allowed to adopt children. The Bill seeks to prevent misuse of this practice and protect women from exploitation. However, domestic surrogacy mechanism can prove to be a breeding ground for corruption and malpractices.

The surrogacy bill, imposes restrictions on persons who seek surrogacy, effectively eliminating candidates who have no acceptable classification. As stated in Article 14, equality is not absolute, therefore not all laws can apply to everyone. As a result, the reasonable categorization test was created to establish a law's legal legitimacy. When presented to this standard, the surrogacy bill fails for the primary reason that the classification is sensible, and thus amounts to class legislation. In the case of State of West Bengal v. Anwar Ali, this test was consolidated.

Article 19

The stated Article of the Indian Constitution guarantees 'trade and profession freedom.' Article 19(6) enumerates the grounds for limiting the claimed right in a fair manner. The Bill appears to be in the public's best interests, but a closer examination reveals that this is not the case.

The Supreme Court ruled in Chintaman Rao v. State of Madhya Pradesh that "reasonable restraint" cannot be arbitrary and unreasonable. It has also been established that the freedom offered and the restrictions imposed must be in a reasonable proportion.

The Supreme Court ruled that outlawing bar dancing completely would be unconstitutional because many women would be compelled to work odd jobs to make ends meet. A blanket ban on commercial surrogacy, likewise, would be in violation of Article 19(1). (g). The blanket ban also raises the possibility of surrogacy being conducted illegally.

Article 21

In the landmark case of Consumer Education and Research Centre and Ors. v. Union of India, the Supreme Court ruled that the right to life inherent in Article 21 of the Constitution also encompasses the 'right to livelihood.' In the case of Olga Tellis v. Bombay Municipal Corporation, the same basis was recognized. The Bill, on the other hand, tends to violate the right to livelihood by implementing a blanket ban on commercial surrogacy, as poor women seeking to earn frantically to make ends meet are on the losing end.

It also has a negative influence on women who desire to gain financial independence or security for themselves and their family by agreeing to be surrogates rather than receiving monetary remuneration.

Furthermore, the Hon'ble Supreme Court declared in Devika Biswas v. Union of India that the ability to reproduce is an important component of the 'right to life' under Article 21. A woman's reproductive rights include the ability to bear a child, give birth, and raise children. Privacy, decency, and integrity are also protected.

After citing Kharak Singh and American rulings, the learned Judge articulated the law in R. Rajagopal v. State of Tamil Nadu: "Any right to privacy must cover and preserve the intimate intimacies of the home, the family, marriage, motherhood, procreation, and child rearing."

As a result, denying surrogacy rights to LGBTQ people, single people, and older couples while confining it to heterosexual couples, widows, and divorced women of a specific age breaches the fundamental right to life under Article 21 of the former.

The Supreme Court recently declared in K. S. Puttaswamy v. Union of India that a person's privacy extends to his or her own autonomy relating to mind, body, and other choices. The Supreme Court also considered the case of B. K. Parthasarthi v. Government of Andhra Pradesh, in which the Andhra Pradesh High Court ruled that the state's involvement with procreation is a direct infringement on one's "right to private."

As a result, given that reproduction or procreation is a profoundly personal and private decision that must be respected, the Bill must ensure that the state interferes as little as possible in this process. On several points, the government has failed to explain why unmarried and childless women cannot become surrogates. A woman's right to manage her body, fertility, and maternity choices should be decided alone by her. As a result, the Bill partially aligns with Article 21's right to livelihood, right to privacy, and right to reproductive autonomy.

The Surrogacy Bill established a government agency over a woman's body by controlling the entire phenomenon via a single lens, leaving no room for a woman to behave as a surrogate independently. The right to privacy involves the right to our own bodies; nevertheless, this bill is damaging to the concept of privacy because it creates laws over women's bodies. As a result, they are in breach of Article 21.

Impact of the Bill on Surrogacy Contracts

Surrogacy contracts play a vital role in the process of surrogacy. The 2020 Bill seeks to fulfil these lacunae by substantiating the provisions governing surrogacy. It has introduced stringent regulatory mechanisms, it is pertinent to analyze the issue of validity for surrogacy contracts.

Loopholes and Suggestions
Several court rulings have supported the notion that a couple in a live-in relationship might have the same legal status as a married pair. It was held in the case of Madan Mohan Singh v. Rajni Kant, that a couple who has lived together for a long time has a presumption of a married relationship. The surrogacy bill, on the other hand, prevents persons living in the state from having children through surrogacy.

Surrogacy restrictions on single people, LGBT people, and people in live-in partnerships, on the other hand, severely restrict the rights of single people, LGBT people, and people in live-in relationships. On the other hand, these individuals are not prohibited from adopting a child. As a result, the legislation of surrogacy in India clashes with the law of adoption. This restriction is also incompatible with the concept of equality entrenched in Article 14 of the Indian Constitution.

Furthermore, the word "near relative," which the surrogate mother must be, is not specified in the 2019 Bill. One of the difficulties that a couple will confront is locating and persuading a "near relative" to function as a surrogate mother.

The Bill promotes altruistic surrogacy but can lead to corruption, black-marketing and a clandestine surrogacy procedure. The prices must be fixed by the appropriate authorities and bargaining shouldn't be permitted. It assumes that altruistic surrogate mothers are not exploited and blatantly ignores the fact that unpaid surrogacy is also exploitative.

The Bill proposes that the parties need a certificate of eligibility prior to entering into the process of surrogacy. It is silent on the time limit for the certificates being issued. The Bill provides for approval of the competent authority and consent of the surrogate mother for an abortion, but it does not mention about the intending parents' consent.

IVF is another good option for couples to opt for.

The ART Bill must be enacted prior to the Surrogacy Bill so as to enhance the smooth functioning between both the Bills leading to a stronger and better regulatory mechanism. Informed stakeholders such as infertility clinics, healthcare providers, medical tourism companies and the concerned governments must be made aware of the health and legal issues that surround surrogacy.

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