CURRENT POSITION
On November 4, 2015, surrogacy for foreign nationals in India had been banned pursuant to a mandate issued by the Ministry of Home Affairs. This is oblivious of the fact that on September 30, 2015, a draft Bill titled “The Assisted Reproductive Technology (Regulation) Bill, 2014” (‘ART Bill 2014’) had been circulated by the Ministry of Health and Family Welfare in public domain for inviting suggestions/comments from general public/stakeholders within 45 days i.e. till November 15, 2015. The ART Bill 2014, had contemplated that surrogacy shall be available to all married infertile couples thereby, debarring single persons from surrogacy. However, it had proposed to disallow surrogacy for foreigners, but to make it permissible for OCIs, PIOs, NRIs and foreigners married to Indian citizens with two years of marriage had to obtain a medical visa for surrogacy in India. The ART Bill 2014, further proposed foreign nationality for such surrogate children of foreign commissioning parents, with limited entitlement of OCI status under the Citizenship Act, 1955 and disentitled Indian citizenship to such surrogate children. Strange, but true, the executive had abrogated the right of surrogacy, whilst the Parliament had yet to legislate on the subject and public opinion has been sought on the ART Bill 2014. Thus, seeking public suggestions was an exercise in futility and remained pending till 2020. The firm executive policy mandate seemed to have aborted the right at inception. These inconsistencies remained in the ART Bill 2014 (ART Bill 2020), as approved by the Union Cabinet of Government of India.
The ART Bill, 2020 was first introduced in Lok Sabha on September 14, 2020 but the House of people had referred it to a standing committee. Many suggestions came from the standing committee and the Government considered them. This Bill proposed the constitution of a national board that will set minimum standards of physical infrastructure, laboratory, diagnostic equipment and expert manpower to be employed by clinics and banks. It also proposes the establishment of a national registry and registration authority to maintain a database of all clinics and medical professionals serving in the field. It further seeks stringent punishment for those practicing sex selection, sale of human embryos or gametes, or found running agencies, rackets and organisations for such practices in violation of the law. The new surrogacy law will regulate assisted reproductive technology services such as in-vitro fertilization centres, sperm or egg banks and curb unethical practices related to issues such as sex selection traits. A legal framework has been provided to safeguard interest of surrogate women and commercial surrogacy will be prohibited. This bill was the most recent, in a series of legislations approved by the Union Cabinet such as the Surrogacy Regulation (Amendment) Bill, 2019 (now SRA 2021) and Medical Termination of Pregnancy (Amendment) Act, 2021, to protect and safeguard the reproductive rights of women. However, on December 1, 2021, the Parliament of India, Lok Sabha House of people passed by a voice vote the Assisted Reproductive Technology (Regulation) Bill, 2021, (ART Bill 2021) after a detailed discussion among all parties in the Lok Sabha House. This Bill sought to regulate and supervise assisted reproductive technology clinics and banks, prevent misuse of the technology, and promote ethical practice of the services. On 8 December 2021, both the ART Bills 2021 and Surrogacy Regulation Bill, 2020, with amendments were passed by the Rajya Sabha i.e. upper House of Parliament. Upon consent of the President of India granted on 20 and 25 December 2021, and simultaneous notification in the Gazette of India on 20 and 25 December 2021, the Surrogacy (Regulation) Act, 2021 (SRA) and the ART (Regulation) Act, 2021 (ART), have come into force in India on 25 January 2022 as notified by the Central Government for actual enforcement and implementation. The SRA though amended, has now proposed that surrogacy shall be available only to infertile Indian married couples and single widowed/divorced women, but all other categories of persons including single men, foreign nationals and foreign couples have been excluded
BACKGROUND
The Indian Council for Medical Research (ICMR) working under the auspices of the Ministry of Health and Family Welfare, finalised the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in 2005, after extensive public debate all over the country from all stakeholders. Under these 2005 guidelines, there was no legal bar to the use of Artificial Reproductive Technology (ART) by a single, an unmarried foreign woman or foreign couple and the child born would have legal rights on the woman or man concerned. Thereafter, the draft Assisted Reproductive Technology (Regulation) Bill, 2008 (ART Bill 2008), the draft Assisted Reproductive Technology (Regulation) Bill, 2010 (ART Bill 2010) and the draft ART Bill 2014, stated to be revised based on the recommendations of the Ministry of Law and Justice, have consistently proposed that ART in India, would be available to all persons including single persons and foreign couples. However, the Surrogacy (Regulation) Bill, 2019 (now SRA 2021), though amended, has now legislated that surrogacy shall be available only to infertile Indian married couples and single widowed/divorced women, but all other categories of persons including single men, foreign nationals and foreign couples have been excluded.
ANOMALIES
Anomalous and inconsistent as it may seem, in the matter of inter-country adoptions, the Ministry of Women and Child Development, has a diametrically opposite policy. It statutorily propagates inter-country adoptions from India for foreigners. JJA 2015, allows a Court to give a child in adoption to foreign parents irrespective of the marital status of a person. The JJA 2015, also authorises State Governments, to recognise one or more of its institutions as specialised adoption agencies for placement of orphan, abandoned or surrendered children for adoption in accordance with the guidelines notified by CARA. The latest guidelines governing adoption of children notified on January 4, 2017, known as the Adoption Regulations, 2017 have streamlined inter-country adoption procedures, thereby permitting single parent adoptions with the exception of barring single male persons from adopting a girl child. Provisions of Transgender Persons(Protection of Rights)Act,2019, also fall foul of ART,2021. A pandoras box of litigations will now open in Supreme Court of India.
Surprising as it may seem, even though the ART Bill 2014, had proposed to allows surrogacy for NRIs, OCIs, PIOs and foreigners married to Indian citizens, the November 4, 2012, letter directed that no visas should be issued to foreign nationals for surrogacy in India, and no permission should be granted by the Foreigners Regional Registration Office (FRROs) to children born through surrogacy to foreign nationals, including OCI cardholders. Visas, if any, granted to foreign nationals and permission, if any granted by FRROs to OCIs for commissioning surrogacy in India, have been cancelled from November 4, 2012 onwards. These instructions were widely circulated for strict implementation to all surrogacy/ART clinics and all concerned bodies. As of now, under the Surrogacy (Regulation) Bill, 2019, (now SRA 2021), surrogacy is confined to infertile Indian couples and all foreign citizens etc., are barred from surrogacy in India.
INCONSISTENCIES
Commercial surrogacy in vogue for foreigners for the past over ten years, has been shut down overnight even though the ART Bill 2014 (ART 2021), was then open for public comment till November 15, 2014. However, much has changed since then, and now Surrogacy for foreigners is completely banned under the SRA 2021. Tripartite constitutional fundamental rights of stakeholders stand violated in the process. Commissioning foreign parents as persons enjoy the protection of the equality of law and the right to life under Articles 14 and 21 of the Constitution, which cannot be taken away except according to the procedures established by law. The right to reproductive autonomy and parenthood, as a part of right to life of a foreign person, cannot be circumvented by an executive Order, especially when Parliament by law already permits parenthood by inter-country adoptions from India by foreigners. Moreover, the executive fiat of November 4, 2012, in advance had aborted rights under the ART Bill 2014 (now ART 2021), which had proposed surrogacy for OCIs, PIOs, NRIs and foreigners married to Indian nationals. However, the SRA 2021 proposes to completely ban surrogacy for foreigners in India except PIOs/OCIs. Even medical professionals, can no longer practice surrogacy for foreign parents, thereby imposing an unreasonable restriction. Surrogate mothers too may claim deprivation of a right of livelihood. All these diverse rights have been curtailed in an undemocratic fashion.
The ART 2021, proposes a complete ban on commercial surrogacy, restricting ethical altruistic surrogacy to legally wedded infertile Indian married couples. The husband must be between 26 to 55 years of age and the wife must be between 23 to 50 years of age. A certificate of proven infertility/expert medical reports of either spouse or of the intending couple from a District Medical Board is mandatory. Overseas Indians, foreigners, unmarried couples, single parents, live-in partners, and LGBTQIA are barred from commissioning surrogacy. Only limited women in the category of close family relatives are allowed to be surrogates. The surrogate cannot be an NRI or a foreigner. The close relative can only be a surrogate mother once in a lifetime. Indian couples with biological or adopted children are prohibited to undertake surrogacy. In the process of surrogacy, only medical expenses will be allowed to be paid and no other funds can be given or spent. Commercial surrogacy, among other offences, will entail imprisonment for a term of at least ten years and a fine extending to rupees ten lakhs. Compensated gamete donation has also been banned. All surrogacy clinics will require mandatory registration under the new law. National and State Surrogacy Boards shall advise, review, monitor and oversee implementation of the new law. Hence, there is a complete clampdown on surrogacy.
VIOLATION OF RIGHTS UNDER LAW
The possible Government logic banning foreign surrogacy to prevent its misuse, seems counterproductive. Rich Indian commissioning parents can still exploit vulnerable surrogate mothers through watertight contracts. Barometers of domestic altruistic surrogacy, will be a vent for corruption and exploitation, sweeping the business of surrogacy into unethical hands in an underground abusive trade of black market. The ends will defeat the means. Commercial surrogacy may still flourish without abandon.
In the Preamble of the Constitution, the people of India have resolved to constitute India as a sovereign, socialist, secular, democratic Republic and secure justice, liberty, equality and fraternity. Article 14 of the Constitution guarantees equality before law, and equal protection of laws to all persons. Likewise, Article 21 of the Constitution guarantees protection of life and personal liberty of all persons. The decision of the Union Cabinet does not appear to be in tandem with the mandate of the people and the Constitutional protections. Permitting limited conditional surrogacy to married Indian couples and disqualifying other persons on the basis of nationality, marital status, sexual orientation or age, does not appear to qualify the test of equality or of being a reasonable classification, satisfying the object sought to be achieved. Further, the right to life, enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood, which is not within the domain of the State. It is for the person and not the State to decide modes of parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in which the State, constitutionally, cannot interfere. Moreover, infertility cannot be compulsory to undertake surrogacy. A certificate of “proven infertility” or expert medical reports, are a gross invasion of the right of privacy which is part of right to life under Article 21 of the Constitution. Democratically, all perspectives must be considered before opinions are voiced, conclusions are drawn, and decisions are taken or announced. The view of the Government cannot be super imposed over the will of the people.
A 23 member Select Committee of the Rajya Sabha had heard suggestions and in a patchwork, the Report had recommended only infertile Indian couples, single, widowed or divorced women eligible for surrogacy. Single men, same sex couples or foreigners are not even in the zone of consideration for surrogacy. A surrogate must be a willing woman. The couple seeking surrogacy will have to provide compelling conditions for availing of surrogacy. Sad but true. Disparity prevails defying equality of sexes.
The 2018 judgment of the Supreme Court in Shafin Jahan v. Asokan, AIR 2018 SC 1933 recognises the right to choose one’s life partner as an important facet of the right to life holding that social approval of intimate personal decisions should not be the basis for recognising them. A nine Judge Bench of the Supreme Court in K.S. Puttaswamy, 2019 (1) SCC 1 held that a promise of a right of privacy is embedded in Article 21 of the Constitution. In Navtej Johar, AIR 2018 SC 4321, Section 377 of the Indian Penal Code, 1860 which criminalised consensual homosexual relationships was read down and declared unconstitutional. The Supreme Court liberalizes equality and equal protection of laws whilst the Legislature restricts it
POSSIBLE SOLLUTIONS
The rational approach would be to control and coordinate by a selective screening process of checks and balances. A similar parallel exists in matters of adoptions. CARA, a statutory body under the JJA 2015, functions smoothly to regulate all adoption matters. A regulated, defined, and effective procedural mechanism rules out all possible unapproved adoptions. Law steps in to check, but not to bar eligible persons from adopting children. Hence, a similar balanced approach in matters of surrogacy requires serious introspection. Surrogacy in vogue for over a decade cannot be stamped out of existence by law. Its practice ought to be regulated and coordinated, without offending equality of law and equal protection of laws to persons and not only citizens in a democratic society.
In the past about 15 years, ART procedures and surrogacy have been instrumental in challenging traditional ideas of childbearing, family structures, and especially parenthood. Three Parliamentary Committees, 16 years and 8 drafts went into making a fractured surrogacy law in India. Irrespective of marital status, the right to have a family, to family life, to go through child birth or experience it in some cases, and receive surrogate help in others, is continuously evolving. In appreciating how this concept and its dimensions have evolved, society and practices have ignited the law to change. Men and women are able to find meaning in parenthood, without having to go through child birth, while surrogates have been able to effectively give up their rights as a mother. Women have learnt to experience child birth, contrary to societal notion of what it means to be a mother giving birth naturally. This transformation, facilitated by ART and surrogacy, has paved the way for segregating social parenthood from biological childbirth. In ART procedures, like gene restructuring therapy, there have also been evolvement of medical technology in restricting or preventing life threatening diseases. The medical treatment of making three parent babies reportedly involves an IVF technique, in which an intervention is made in the fertilization process, whereby a small amount of faulty DNA in a woman’s egg is replaced with the healthy DNA of another woman donor. Whilst the father remains the same, the baby inherits a mix of genes from two women, a mother and a contributory female. The ideology in conception of three parent IVF babies, supposedly being born disease free, stems from blocking inheritance of genetically incurable diseases being passed down generations. The technique known as “mitochondrial donation,” is said to be designed to curtail diseases passed down the maternal line, by removing mitochondria which are stated to act as tiny energy generating batteries inside cells, which, if faulty, can be a source of serious diseases passed on genetically by inheritance. Thus, DNA of two parents is blended with the healthy mitochondria of a female donor to remove the faulty DNA.
However, with the fast-paced advancement of medical science, and evolution of understanding of society on what it means to have a family, the ART and surrogacy law is being enacted in the opposite direction. Despite the development of various ART procedures and demand for surrogacy, most of this benefit remains outside the purview of legally binding regulatory frameworks in India. At this crucial juncture of the intersection of medical science and the law, interests of various stakeholders need to reconcile. The commissioning couples irrespective of marital status, nationality, or religion, besides the donors, surrogates, the medical fraternity, and the society, often find themselves at par, but at variance and in conflict with law. The consideration of the overall society as a stakeholder is critical, and this is why an appropriate regulatory law needs to be put in place. It is in this perspective that the role of regulatory frameworks becomes imperative. Hence, it is for the Government to make a restrictive and regulatory law and not banish surrogacy. Thus, there can be no dictatorship in surrogacy.