[dropcap]T[/dropcap]HESurrogacy (Regulation) Bill, 2016 was passed, amidst fervent opposition, in the Lok Sabha on December 19, 2018 – a move that is indicative of the driving political will towards the issues of surrogacy, family and autonomy today. The Bill is rife with glaring legal and ethical challenges pertaining to not only the ban on commercial surrogacy but also its exclusionary and paternalistic nature.
What’s in the Bill?
This Bill proposes to ban commercial surrogacy in lieu of altruistic surrogacy carried out by a ‘close relative’ of the commissioning couple, accompanied by no monetary exchange except for the necessary medical and insurance expenses. Further, it permits only Indian citizens who have been legally married for a minimum of five years with a medical certificate proving infertility (which has been defined as the inability to conceive a child after five years of unprotected coitus) to avail surrogacy. Implicitly, it excludes same-sex couples, unmarried and divorced individuals and couples unable to bear children for reasons other than medical infertility.
It has been argued that the blanket ban on commercial surrogacy itself is counter-productive, as it not only provides an opportunity for a black market to emerge but also controls the bodily autonomy of women and deprives them of their source of employment. Barring these problems, the restrictive definition of who can avail the right raises several pertinent questions regarding the view the Legislature has adopted on family and parenthood.
“Intention” over “biology” – the test for parenthood
The advent of Artificial Reproductive Techniques (ART) has changed the definition of procreation and parenthood, which now emphasizes the intention to raise a child – a factor that is severed from the biological ability to conceive a child. This does not inherently discriminate based on moral or social standards on who can be a parent. While the intent-based approach for surrogacy parenthood is not codified, the Supreme Court has held that genetic linkage or a legally recognized marriage is subservient to an individual’s actual intention and contribution in raising the child when deciding matters of custody and guardianship. The rationale distinguishes legal and biological parentage, and hence it also makes a strong case for the right to have a child through surrogacy to be extended to every individual without discrimination based on the biological ability to do so.
Constitutional challenge to the Bill – Autonomy, private choice and public policy
The Surrogacy (Regulation) Bill can face a constitutional challenge as it contradicts privacy jurisprudence under Article 21. Intent-based parenthood and private ordering have replaced the traditional norm of what a family is and have given greater precedence to individual autonomy. The Supreme Court in Puttaswamyspecifically included family reproductive autonomy (which includes personal decisions about procreation), unqualified by any social or economic bias, as essential aspects of the right to privacy. Further, Article 14 of the Constitution specifies equality before the law and disallows any arbitrary laws without a just, fair and reasonable rationalization for the unequal treatment. This implies that the State cannot, by legislation, deny the right to avail surrogacy (of any form that it has deemed legal) to a certain group of people devoid of any legal reasoning.
A fundamental right is inevitably limited by what is necessary for ‘the greater good’ of society. In the case of surrogacy, the only stakeholder other than the parties involved in the child to be born, whose emotional and psychological welfare is more important than any legal entitlement to parenthood. The question of what constitutes the welfare of the child has been extensively adjudicated upon by Indian and foreign courts, and the Supreme Court has held it to be a holistic concept that includes stability and security, affection and an environment conducive for the healthy upbringing of a child. These conditions are fundamentally a product of circumstance and the individual temperament – independent of the nature of the relationship of the parents. There is no reason to presume that a stable homosexual couple cannot provide the same upbringing as a heterosexual couple. Thus, if the sexual orientation of the intending parents does not have any nexus with possible harm to the upbringing and welfare of the child, it should not automatically disqualify a couple/individual from procreating through surrogacy under the Bill.
Fallacy in the Government’s defence of the Bill
The Standing Committee Report has criticized the exclusionary nature of the Bill and recommended against it. However, the Government has defended the Bill by saying that an intending couple must have some legal accountability in order to ensure a stable two-parent family to the child. The anomaly in this reason is the fact that single and divorced individuals are legally permitted to adopt children as per the Sections 7 and 8 of the Hindu Adoptions and Maintenance Act and the Section 57 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Further, in Navtej Singh Johar v. Union of India, the Supreme Court declared Section 377 of the IPC unconstitutional and paved the way for social and legal recognition of homosexuality as an exercise of individual liberty and not an anomaly deserving of social sanction. This implied that the sexual nature of a homosexual relationship is now legal in India, even if such a marriage has not yet been legalized, which should technically give them the same legal status of a live-in couple. The Supreme Court has held that children born out of a live-in relationship are considered to be equivalent to biological children of a married couple, and there is a presumption of marriage for couples living together for a long time.
Bharatiya Janata Party leader Sushma Swaraj, when asked why the Bill excludes same-sex couples from its ambit, dismissed the idea by saying that “its against our ethos”. This casual remark reveals the real reason behind the exclusionary nature of the Bill; it is a moralistic, unscientific and legally unsound rationale for restricting the scope of the Bill and should be unacceptable for national legislation. Biology no longer determines the ability to procreate and the Supreme Court has attempted to rid our laws of moralistic restrictions on liberty – thus the Bill is currently an impediment the LGBTQ Community’s realization of their newfound choice to create families beyond the traditional norm of nuclear heterosexuality.
Due to the then-impending general elections, the Rajya Sabha adjourned on February 13, 2019, before the Bill could be introduced there, due to which it is among 46 other draft legislation that have lapsed. Having been in discussions since its first introduction in November 2016, and the socio-legal importance of the gap it aims to fill, the Bill is likely to be re-introduced in the 17thLok Sabha. If it is passed without paying heed to these criticisms, it will undo what has been a transformative year for equality and freedom for the LGBTQ Community.