By: Shubhankar Tiwari and Aditi Mishra
INTRODUCTION AND ROADMAP
On the 15th of July, 2019, the Union Minister of Health and Family Welfare Dr. Harsh Vardhan introduced the Surrogacy (Regulation) Bill 2019 (hereinafter ‘the Bill’) in the Lok Sabha. The same was passed by the House through a voice vote on the 5th of August, 2019. Prior to this Bill, in 2018, the Surrogacy Regulation Bill 2016 was also passed by the Lok Sabha but it lapsed along with 46 other draft laws due to the adjournment sine die of the Parliament. However, the present Bill is almost on the brink of becoming an Act.
The primary objective of this Bill is to protect the rights of its three primary stake-holders i.e. the surrogate mother, the surrogate child and the couple opting for surrogacy. Moreover, it provides for constructive and futuristic changes like constituting National as well as State Surrogacy Boards to regulate the practice of the surrogacy across the nation. However, a close look clearly points out the chinks in the armour of the Bill, which in the opinion of the authors is nothing more than a half-baked cake.
In this paper, the authors attempt to identify the inherent lacunae in the Bill and how it fails to address several concerns of its chief stakeholders. The authors try to apprise the reader of the failure of the legislature to make the best use of the opportunity it had through this Bill. While the first section points out the discrepancies in the Bill on the medical front, the second section shows its incongruence with the sociological realities of India. The third section of this article discusses the landmark judgment of Navtej Singh Johar v Union of India and how this Bill goes against what the judgment stands for.
FLAWS ON THE MEDICAL FRONT
One of the biggest flaws of the Bill is its failure to completely identify its stakeholders. Section 2 (p) of the Bill defines ‘infertility’ as “the inability to conceive after five years of unprotected coitus or other proven medical condition preventing a couple from conception”. The authors argue that this definition is incomplete. The reason behind the same is that it excludes the couples who are able to conceive but not sustain pregnancy. Diseases like hyperthyroidism, hypothyroidism and Polycystic Ovary Syndrome jeopardize the chances of sustenance of pregnancy but the ability to conceive still remains unaffected in such cases. However, due to the limited scope of the aforementioned definition, couples in such cases are unable to opt for surrogacy.
This discrepancy in the definition of ‘infertility’ was even pointed out in the Parliamentary Panel Report to the Rajya Sabha when the previous bill was under consideration. The legislature had a chance to widen the scope of this definition through this Bill, but it clearly missed it.
Another flaw on the medical front is detected if we closely examine Section 4(c) (I) of the Bill. It deals with the requisites for availing the eligibility certificate for the couple seeking surrogacy. The section says, “the age of the intending couple is between 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification”. In simpler words, it fixes an age cap for both the genders seeking surrogacy.
The lower age cap for both the genders can still be defended as it has been fixed after keeping in mind the five-year marriage clause of the Bill and the minimum marriageable age in India i.e. 18 years for female and 21 years for a male. However, the upper age cap seems widely unreasonable and unjustifiable. It is blatantly discriminatory against the couples above this threshold. Several couples opt for sperm freezing so that they can conceive at a later stage due to various social or economic factors. Unfortunately, if they cross the aforementioned threshold and they aren’t able to conceive, they cannot resort to surrogacy as clause 4(c) (i) deprives them of this option.
FLAWS ON THE SOCIOLOGICAL FRONT
Section 4 (iii)(b)(II) of the Bill says, “No person, other than a close relative of the intending couple, shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act”. The authors argue that such a provision is highly problematic when placed in the Indian sociological context. The provision in its quest to protect the exploitation of the impoverished and uneducated women, who opt to become surrogate mother out of financial constraints, blatantly ignores the existing social realities.
Infertility is already a very agonising experience for a woman. The pain is further aggravated by the extreme pro-natal sentiment and the desire to carry forward the family lineage. Childlessness heavily jeopardises a woman’s personal worth in her family and leads to situations of physical or psychological abuse. The stigma attached to discussing reproductive and menstrual health still prevails in the deepest, darkest corners of the Indian society. In light of such circumstances, to assume that the infertile couple would be comfortable in seeking a surrogate mother amongst their close relatives shows the lack of foresight on the part of the legislature while coming up with this provision.
Another complication that arises is the possibility of development of a pre-natal emotional bond between the surrogate mother and the child. Such a situation might jeopardise the close familial ties post the childbirth. In case of a miscarriage, it might drastically affect the mental health of the surrogate mother, given the close nature of family bonds and consequently, the high amount of family pressure. This is one of the reasons why a stranger is generally preferred over a close relative in such cases. It is noteworthy that this discrepancy in the scope of Section 4 (iii) (b) (II) was even pointed out in the Rajya Sabha Select Committee Report. The report recommended replacing the phrase ‘close relative’ with ‘willing woman’.
AGAINST THE SPIRIT OF NAVTEJ JOHAR v. UNION OF INDIA
It is noteworthy that Section 2(g) of the Bill goes against the spirit of Navtej Singh Johar v Union of India which de-criminalised consensual sexual activity between two adults of the same sex. This section defines a couple as ‘legally married Indian man and woman above the age of 21 years and 18 years respectively’, thereby blatantly ignoring the homosexual couples.
The Apex Court while scrapping off Section 377 of the Indian Penal Code held that sexual orientation is an important facet of self-identity, which comes under the purview of Article 21 of the Indian Constitution. Evidently, Section 2(g) of the Bill clearly discriminates on the basis of sexual orientation and marital status, thereby violating two important fundamental rights i.e. Right to Equality and Right to Life. The authors further extend this argument by expounding on the fact that sexual activity isn’t limited to satiating carnal desires. Having children through a sexual union is also an important aspect of Right to Life. Hence, it wouldn’t be incorrect to say that Section 2(g) of the Bill violates the Indian Constitution.
Moreover, homosexual couples aren’t the only ones who have been discriminated against through this provision. The Rajya Sabha Select Committee Report pointed out that widows, divorced women and people of Indian origin are also at the receiving end of the discrimination done by the Bill and therefore must be taken care of.
It is beyond a shadow of a doubt that prima facie the Bill seems to be a huge futuristic step taken by the government. The reason behind the same is that it attempts to prevent the abuse of human dignity that has been going on in our country due to commercial surrogacy. Such abuse is manifested through surrogacy clinics becoming ‘baby factories’ for the rich and ‘prison cells’ for the impoverished and uneducated women. However, this doesn’t relieve the Bill of its multiple flaws on various fronts as pointed out.
The authors accept the fact that a Surrogacy (Regulation) Bill has long been overdue but to compensate for that delay by bringing in a Bill that goes against the spirit of the Indian Constitution and even fails to completely identify its stakeholders is highly unacceptable. With such Bills on the verge of becoming an Act, it seems that Tagore’s dream India, ‘where the clear stream of reason has not lost its way into the dreary desert sand of dead habits’ remains a distant reality as of now.
Cite as: Shubhankar Tiwari and Aditi Mishra, ‘Surrogacy (Regulation) Bill 2019: A Regressive Move on the Verge of Becoming a Reality’ (The RMLNLU Law Review Blog, 04 May 2020) <https://rmlnlulawreview.com/2020/05/04/surrogacy-regulation-bill-2019-a-regressive-move-on-the-verge-of-becoming-a-reality > date of access.