The Constitutional Validity of the 2019 Surrogacy Bill

INTRODUCTION

Every person has the right to reproduce, it can also be considered a basic Human Right of the people. But infertility is the factor that haunts most people who want to have a child. It is not that it is prevalent only at the present; it is something that has been there for a long time. But these couples, in India, usually adopt another child, mostly a child within their extended family. Now along with the development of science and technology, we have also witnessed other solutions for infertility, like IVF procedures, and surrogacy. Among these two, surrogacy is a little bit more complicated as it involves a completely new person, other than the intending couple, in the process. To date, there are no legislations that look into the surrogacy procedures but there was a bill in 2019 which tried to cover the issues in surrogacy. The Supreme Court, at a time, said that commercial surrogacy should be regulated by law but this bill went one step further to make commercial surrogacy come to an end.

In this article, we will look into the provisions of this bill along with the Constitution, to determine its constitutional validity.

Commercial Surrogacy

India is one of the few countries, where commercial surrogacy was legal. Most countries made commercial surrogacy illegal and only altruistic surrogacy was legal and few countries banned the practice of surrogacy completely. This and the fact that in India the usual fees for commercial surrogacy is around $25,000 to $30,000, which around 1/3^rd of the fees in countries like the USA and the UK, made India a hub for commercial surrogacy. India was also known as the world capital of surrogacy. Hence the 228^th Law Commission Report of India suggested an act to overlook the commercial surrogacy process in India.

The need for the regulation of commercial surrogacy was also felt in few cases. One of the important cases, which caught the eye of the media is the case of Baby Manaji Yamanda v. Union of India. In this case, a Japanese couple contracted with an Indian woman to be the surrogate mother for their child. A few months before the child’s birth, the couple divorced and neither the wife nor the surrogate mother wanted to take care of the child. The father of the child wanted to take custody of the child, but he faced a lot of issue as the Indian legal system did not recognize adoption by a single man. The father filed a suit in the Supreme Court and under exceptional circumstances, a certificate of identity was issued by the passport authority to the baby. After a huge uproar by the Japanese citizens in Japan, the Japanese government issued one year visa to the baby on humanitarian ground and the baby’s grandmother had custody of the baby temporarily. This case resulted in an increasing debate about commercial surrogacy in India, regarding the exploitation of the surrogate mother, due to the lack of a legal contract. This is issue was highlighted very much because these women who act as a surrogate mother mostly agree to this as a last resort to earn money and they are also mostly illiterate and has little to no knowledge about contracts and so these contracts often do not have clear provisions about the position of the surrogate mothers.

Another case of equal importance is that case of Jan Balaz v. Anand Municipality. In this case a pair of twins were born through a surrogate mother to a German Couple. Here, the Gujarat High Court said that commercial surrogacy was legal in India as there are no provisions against surrogacy agreements. The judgements of these two cases said that there is a need for a statute which looks into surrogacy.

Provisions of the Bill

The bill was introduced in the Lok Sabha on July 15, 2019. The bill defines, surrogacy and altruistic surrogacy and commercial surrogacy is prohibited and the practise of the same would be punished with imprisonment and fine up to ten years and Rs. Ten lakhs respectively. According to this bill, surrogacy is permitted only in the following circumstances.

To begin with, all the intending couples should get a certificate of infertility from the appropriate authority.
In addition, it should be an altruistic surrogacy and never commercial surrogacy.
Furthermore, children of the surrogacy should not be intended for any illegal exploitation.
Finally, the Board can also specify any conditions required.

The word ‘appropriate authority’ used in this bill is the authority that is to be established by the State and Central Government within 90 days of passing this bill. In case of abortion of the child, the surrogate mother should give her written consent and it should be authorized by the appropriate authority in accordance with the Medical Termination of Pregnancy Act, 1971. The surrogate mother at any time, before the embryo is implanted in her womb, has the option to withdraw herself from the procedures.

Eligibility of the intending couple:

The intending couple has to get a certificate of essentiality and a certificate of eligibility from the appropriate authority. To get a certificate of essentiality, the couple should provide the appropriate authority with the following:

A certificate from the District Medical Board proving the infertility of one or both of the couple,
An order by the Magistrate’s court for the parentage and custody of the child, and
Insurance coverage for the surrogate covering the postpartum delivery for 16 months.

Then, to get the certificate of eligibility, the couple should prove the following conditions:

The couple should be citizens of India and should be married for at least five years,
Among the couple the wife should be 23 to 50 years old, whereas the husband should be 26 to 55 years old,
Further, the couple should not have any surviving child, this includes biological, adopted or any other surrogate child, but this does not include any child who is suffering from any life-threatening disorder or mentally or physically challenged, and
Finally, the Board can also specify any conditions required.

Eligibility of a surrogate:

To be eligible for being a surrogate mother, she has to get a certificate of eligibility from the appropriate authority, and to get this certificate, the surrogate mother has to fulfill the following conditions:

First, she has to be a ‘close relative’ of the intending couple,
Further, she has to be 25 to 35 years old, and a married woman who has a child of her own,
Furthermore, she should possess a certificate of medical and psychological fitness for being a surrogate mother,
In addition, she cannot give her gametes for the procedure, and
Finally, a woman can be a surrogate only once in her life.

The Bill and the Constitution

Now, we will look into the few provisions of the 2019 Surrogacy Bill along with the few Articles of the Constitution.

Article 14:

Article 14 of the Indian Constitution ensures equality before the law and it says that no person should be discriminated against based on religion, race, caste, sex, or place of birth. This article says that all people are subjected to the same laws and equal protection of laws. According to the 2019 Surrogacy Bill, only infertile, heterosexual, a married couple has the option of surrogacy. Even in an infertile, heterosexual, married couple, they have to be married for 5 years, only then they can proceed with the procedures for surrogacy, and again if they have a child, they cannot proceed with the procedures. But the issue here is that they did not even mention transgenders, a homosexual couple, a live-in couple, and a widow or widower. These people are completely neglected by the lawmakers in this Bill. These people did not get a proper representation. As per this bill, they do not have the equal opportunity to become parents. As mentioned earlier, the Right to Reproduce can be considered a basic human right. This bill, in a way, takes away their basic rights.

The transgenders, homosexual couple, live-in couple, widow or widower, and a divorcee should also have the option to use the surrogacy procedure to have their children. By this, we can say that even though homosexuality has been decriminalized, the Legislation is not yet developed to provide minority groups like transgenders and homosexual couples, with enough support to go on with their lives.

Article 19 (1) (g):

Article 19 (1) (g) gives the citizens the right to practice any profession, but many argue that carrying on a commercial surgery is barred under Article 19 (6) for resaonable restrictions. In the case of Modern dental College c. State of MP, the Supreme Court said a restriction under Article 19 (6) cannot be said to be resaonable if there is an alternative, which would be less infraction of a person’s right under Article 19 (1) (g). The 228^th Law Commission Report said that Indian women for their role as surrogate mothers, are paid only one-third of the amount paid in other countries, like the UK and US and there might also be instances, where these women are exploited by non-payment of the money. If this is the reason why the government thinks commercial surrogacy should be banned, then there is an alternative suggestion, that they could make statutes regarding this. For example, the statute could give the minimum wages that are to be given to the surrogate mothers and penalties for the couple, in case of non-payment. This alternative is much more convenient than just saying commercial surrogacy is completely banned.

Right to privacy:

As per the Supreme Court judgment in the case of KS Puttuswamy v. Union of India, the Right to Privacy was included as a Fundamental Right under Article 21 of the Indian Constitution. This can be divided into two: the dignity of the individual and the right to privacy in health issues.

First, the dignity of the individual. In the case of Navtej Singh Johar v.Union of India, the Supreme Court held that matters related to sex, sexuality, and procreation are not just private choices, but are questions of dignity. This bill infringes the dignity of the individual as it takes away a person’s personal choice regarding procreation, and sex. In addition to this, the qualification for surrogacy is very narrow, as it involves only infertility, it does not involve, situations like the health issue, which may lead to inability to have a child, as it will be dangerous to both the child and the mother, like anemia, diabetes, and ovarian cysts.

Second, is the privacy of the individuals in health issues. This bill says that the intending couple should disclose their infertility to the District Medical Board, nowhere in this bill, has it been explained about how this information will be processed and how this information will be stored. Details regarding health are supposed to be personal and private, this is also evident as the State has classified health data as sensitive personal data under the Personal Data Protection Bill, 2019. The Supreme Court has also that individuals have the right to protect the privacy of their families, regarding procreation, in the case of R Rajagopal v. State of Tamil Nadu, forcing the couple to disclose their matters, just so they could have a child is an outright infringement of their fundamental rights and the lawmakers should also note that infertility is not the only reason for someone to turn to surrogacy, each person has different difficulties and it is not the same for everyone, this should be acknowledged. This provision of the bill should be changed.

CONCLUSION

The Surrogacy Bill of 2019 does not have a complete understanding of the concept of surrogacy. This bill was introduced to protect the surrogate mother from exploitation by banning commercial surrogacy. Instead, they could have included other provisions regarding the employment of such women. The concept of surrogacy has emotional, physical, and economical factors that need to be fulfilled, with a balance between them. This bill did not look into all three factors completely. A completely ban on commercial surrogacy would only result in the increase in commercial surrogacy illegally, with the involvement of middlemen. That is much worse. The legislative should have looked into all these factors before framing the bill.

This article is written by Santhiya V, pursuing BBA LLB (Hons.) at Alliance University.