Reproductive justice: Constitutional issues plaguing ART and surrogacy laws in India

There is merit in reorienting the legal and policy paradigm of what constitutes reproductive justice into a rights-based framework rather than a restrictive, medico-technical, regulatory tool that focuses on prohibition.

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THE Assisted Reproductive Technology Act, 2021 ('ART Act') as well as the Surrogacy (Regulation) Act, 2021 ('SR Act') are recent legislations with the purported aim to regulate previously unchecked gaps in state policy concerning reproductive rights and commercial surrogacy. However, both raise questions of a paternalistic, interventionist State, and are plagued by myriad structural and constitutional issues.

Prior to the Acts being passed and receiving the President's assent in December 2021, there existed only certain guidelines issued by the Indian Council of Medical Research regarding both compliance norms for unregulated ART clinics as well as for procedures related to surrogacy. Now, simply put, the ART Act contemplates registered clinics and banks to offer "safe" and "ethical" ART services to a restricted class of people, who are proven to be infertile, while the SR Act bans commercial surrogacy, allowing again, to limited beneficiaries, altruistic surrogacy services.

This essay explores the wide-ranging ethical, legal, and social repercussions of these Acts. Firstly, they are in contravention of Articles 14, 15(1), and 21 of the Constitution through their discriminatory, exclusionary, and arbitrary nature. Secondly, they deny agency and autonomy in the discourse on reproductive justice. Thirdly, they provide a State-sanctioned notion of the ideal family that restricts reproductive rights – derogation from which now carries criminal liability. Finally, inconsistencies under the Acts prove to be structural hurdles for beneficiaries.

It is argued that there is much more merit in reorienting the legal and policy paradigm of what constitutes reproductive justice in these Acts into a rights-based framework rather than a restrictive, medico-technical, regulatory tool that focuses on prohibition. In doing so, all stakeholders are placed on an equal footing before the law and the State does not exceed its legitimate aim in a democratic society.

Also read: Lacunae in the Surrogacy (Regulation) Act, 2021

Moral conservatism

The ART Act contemplates services being availed by two classes of beneficiaries – a "woman" above the age of 21 years and a "commissioning couple", that is, a man between the ages of 21-55 years and a woman between the ages of 21-50 years, who are legally married and infertile. Similarly, the SR Act also has two classifications – an "intending couple", that is, a married Indian man and woman above the age of 21 years and 18 years respectively, for whom surrogacy is "necessitated" to become parents, and an "intending woman", that is an Indian woman who is a widow or divorcee between the ages of 35-45 years.

On what basis the two Acts have arrived at the need for differing and arbitrary age restrictions is unclear. Herein, there are blatant inconsistencies within the SR Act itself. While Section 2(1)(h) read with Section 2(1)(r) in defining an "intending couple" contemplates a legally married Indian man and woman above the ages of 21 years and 18 years respectively, Section 4(iii)(c) as a compliance provision mandates that an eligibility certificate be issued to the intending couple only when the male member of the intending couple is between 26-55 years of age and the female, between 23-50 years of age. Without such a certificate, surrogacy services cannot be availed. When implementing the statute, it would be impossible to reconcile multiple provisions providing differing age-related eligibility criteria.

From a rights-based perspective, the ART and SR Acts fall afoul Articles 14, 15(1), and 21 of the Constitution, which prohibit the State from denying equality before the law or the equal protection of laws to any person; from discriminating against any citizen on grounds of sex among others; and from depriving a person of her life or personal liberty except according to procedure established by law, respectively.

To implement the right to equality under Article 14, classification is permitted; however, the tests against which State action are scrutinized, are those of non-arbitrariness, rationality, and intelligible differentia (that is, distinguishing those that are grouped together from others). Such differentia must have a rational relation to the object sought to be achieved by the Act. It is argued that the ART and SR Acts fail to satisfy each of these tests.

Also read: Equality – Jurisprudential interest resurrected

The ART Act very clearly states that its objective is merely to regulate and supervise ART clinics and banks, and provide an avenue for safe and ethical ART services. The object of the SR Act, on the other hand, is to create a framework of boards and authorities to regulate surrogacy procedures. Under the ART Act, commissioning couples have to satisfy requirements of being legally married, above the age of 23 and 26 years for women and men respectively, infertile, and having no existing children. Even in a heteronormative setting, this excludes newly married couples (for example, a married couple where the woman is between 18-23 years and a man is between 21-26 years) who are desirous of having a baby, or those who have an existing child but are unable to have another and wish to do so via surrogacy. Further, it unequivocally excludes unmarried men, divorced men, widowed men, unmarried yet cohabiting heterosexual couples, and all members of the LGBTQ+ community. To attribute characteristics grounded in stereotypes to groups of people, on the grounds prohibited under Article 15(1) is discriminatory State action and impermissible, as per the Supreme Court's landmark ruling in Navtej Singh Johar & Ors. versus Union of India (2018).

Quite tellingly, in statements to the press by State functionaries who participated in drafting the surrogacy law as it stands, the reason for exclusionary classifications is attributed to what is "against our ethos." Prejudicial thinking that is uninterested in an egalitarian society and seeks to create an "other" by way of discrimination, is unbecoming of legislators and rightfully casts aspersions on the legitimacy and fairness of State action. Excluding members of the LGBTQ+ community from availing ART and surrogacy services, based on their identity and sexual orientation, is discriminatory and falls afoul both Articles 14 and 21. Article 21 encapsulates gender identity as an inviolable part of the fundamental right to dignity, at the core of which is self-determination and autonomy.

In Anuj Garg & Ors. versus Hotel Association of Indian & Ors. (2007), the constitutional validity of a legislation prohibiting employment of "any man under the age of 25 years" or "any woman" in bars, was in question in the Supreme Court. The provision was challenged on grounds of being ultra vires Articles 14 and 15(1) of the Constitution, among others, insofar as it acted as a prohibition on "any woman" from partaking in a particular form of employment. Consumption of alcohol in a public space was considered by the State to be an arena of work in which only men would be safe and accepted by society. As to Article 14, the court held that classification when undertaken by the State must be founded on rational criteria, prescribing a strict test to unveil protective discrimination in State action or legislation. Herein, the interference sought by the State must be "justified in principle and proportionate in measure" with the burden of proof being on the State. The court opined that:

"The courts task is to determine whether the measures furthered by the state in the form of legislative mandate, to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy et al."

Thus, under the ART and SR Acts as well, to further the State aim in protecting the child-bearer from possible reproductive exploitation, a balancing act must be envisaged when pitting safety concerns against the autonomy and privacy of stakeholders. Policy inferences or legislating from societal conditions, majoritarian views, cultural determinants and traditional morality impinge upon norms of equality, autonomy and privacy, among others, and exceed legitimate State aims. 

In Justice K.S. Puttaswamy & Anr. versus Union of India & Ors. (2017), it was held by the Supreme Court that the right to privacy emanates from Article 21 of the Constitution and protects the inner sphere of the individual from external interference, allowing her to make autonomous life choices regarding the construction of her identity in personal, familial and social contexts. Any State action which curtails this right must be an action sanctioned by law; it must be necessary in a democratic society for a legitimate aim; the extent of such interference must be proportionate to its need; and there must be procedural guarantees against the abuse of such interference. The court also held that claims alleging abrogation of the right to privacy by the State deserve the strictest scrutiny standard of 'compelling State interest and narrow tailoring', that is, law must be narrowly framed to achieve the objective, rather than the 'just, fair and reasonable' standard under Article 21.

Under the present ART and SR Acts framework, while State action is codified in law, it fails the test of legitimate aim in a democratic society as discussed previously. The level of interference, be it as to differing age restrictions, marital status, sexual orientation and identity, has no relation to the regulatory objectives sought by the Acts. Further, when applying the compelling State interest standard to the provisions of the ART and SR Acts, one finds that the State interest in regulating and registering clinics for providing "safe and ethical" ART services as well as surrogacy procedures has not been tailored narrowly under the Acts. In fact, the exclusionary amplitude of Acts far exceeds any purported State interest and manifests in violations across multiple fundamental rights. The same necessitates strict judicial scrutiny.

Also read: Assisted Reproductive Technology (Regulation) Bill, 2021: An Explainer

State cultivation of an ideal family

Section 3(2) of the SR Act, in regulating surrogacy as a type of ART service, provides for a complete prohibition on commercial surrogacy. Under Section 4(ii)(b) only familial, altruistic surrogacy is permitted, that is, it should be undertaken sans monetary gain by a member of the beneficiary's family or relative, in a clinic that is registered under the Act. In this vein, a woman who has agreed to be a surrogate must be "ever married", have a child of her own, and be between the ages of 25-35 years.

Intersectional exploitation of women in India runs rampant in a litany of spheres, whether it be sexual, economic, or caste-based, and thus there is a legitimate State aim in protecting women. However, rather than a paternalistic State curtailing the agency and autonomy of women to make intelligent decisions about their bodies, a nuanced understanding of reproductive justice and a balancing act is necessary.

While the ambit of this essay is not to delve into a critique of commercial surrogacy, it is not hard to see how having legal recourse merely to familial, altruistic surrogacy will be stifling in a multiplicity of ways in the Indian context. In a plural country such as ours where cultural, societal and religious norms regulate private life for many, they coalesce and manifest in various stigmas. For example, there are strong notions that lie at the intersection of perceived ideals of womanhood, family, acceptable identities and orientations, bodily integrity and agency, and of monetary compensation for labour that involves a woman's body.

Character assassinations, familial honour, and calling into question the "womanhood" of many, are likely to be anticipated when concerning the prevalent stigma of infertility – all affronts to the right to dignity as emanating from the right to life under Article 21. In many parts of our country, childbearing is still perceived to be the most important responsibility of a married woman. Many women also reside in a joint family setting, where it might prove to be impossible to separate relatives from the private sphere of one's life – especially where reproduction carries with it a strong sense of community. Altruistic, familial surrogacy as a policy answer to any exploitative 'racket' of commercial surrogacy is un-nuanced and does not concern itself with the harsh truths of our society. Instead, compensatory regulated surrogacy can serve as a policy middle ground, as had been suggested in this 2019 article in The Leaflet.

Any derogation from the State-sanctioned ideal family now carries criminal liability. Section 40 of the SR Act provides that an intending couple or woman who seeks the aid of any medical practitioner contemplated under the Act "to not follow altruistic surrogacy" or "undertake commercial surrogacy" shall be punishable with imprisonment which may extend to five years and a fine which may extend to five lakh rupees. A subsequent offence doubles both the fine and the imprisonment. Interestingly, under Section 33(1) of the ART Act, the penalty prescribed for a medical practitioner in exploiting beneficiaries or purchasing or selling their human genetic material, that is, operating the very racket the Act fears, has a lower threshold of imprisonment starting from three years extendable up to eight years. To attribute a higher degree of criminality to beneficiaries under the Act, reflects the anti-agency and autonomy mindset of policymakers.

Also read: The Surrogacy Bill, 2016: A step back for inclusivity

The way forward

It is necessary to reorient legislative thinking into one that is rights-based if protecting the supposedly exploited surrogate mother is truly at the heart of these Acts. Providing safe, consensual ART procedures in registered clinics for a surrogate mother who has attained majority must be viewed as the extent of the legitimate State aim under the Acts. Persons who may avail ART or surrogacy services must be classified while keeping in mind the rights guaranteed under Part III of the Constitution. To curate beneficial, regulatory legislations with dangerous norms of tradition and ethos at the centre will only pave a litigious way forward for the government of the day.

Altruistic surrogacy, and that too for a restricted class of people, is less likely to prove a cogent recourse for many Indians. It fails to consider the realities of the 'private' in our society. The State should not, while considering altruistic surrogacy as an ART service, restrict the same to family. Instead, if altruism is the way forward, it might be more prudent to expand the scope of the SR Act to allow any healthy person who is able and willing to conceive for no monetary payment to do so. Restrictions on autonomy in terms of being "ever married" or between 25-35 years of age, and related to the intending couple or woman, smack of arbitrariness and severely curtail reproductive options available to Indians – who are already facing a decline in fertility.

Further, as a policy prerogative, to consider an outright ban against commercial surrogacy as an effective combater of exploitation of women is also ill-conceived at best. For example, under prohibition laws, State paternalism and skewed perceptions of 'Indian' culture still regulate policy in certain states. Not surprisingly, consumption remains rampant. Legislators must be circumspect in resorting to blanket bans for often, they result in institutional failures that are very hard to rectify retrospectively. Rather they should meaningfully engage with their polity and churn out regulatory interventions only where there is a compelling State interest, while balancing the same with the rights guaranteed by our Constitution.