In the case of Suchitra Shrivastava and Ors. Vs. Chandigarh Administration1 & Meera Santosh Pal vs. union of India2, the apex court has recognized the right to reproductive choices as apart of the right to personal liberties under Article 21 of the constitution. But it is not everyone’s fortune. With the advancement in the technology surrogacy is becoming a viable alternative to enable people to become parents. The Surrogacy (Regulation) Act, 2021 is a progressive step towards enacting rules and regulations to surrogacy but the Act suffers from several flaws, namely lack of inclusiveness, exclusion of non-binary gender, prohibition of commercial surrogacy and the vagueness of certain provisions. This is an article, aiming to give a critical analysis of the said Act.
Surrogacy (Regulation) Act, 2021:
Black Law Dictionary defines surrogacy as an agreement where a woman agrees to be artificially inseminated to carry with the semen of another women’s husband. The definition given in Assisted Reproductive Technology Bill, surrogacy is an agreement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belongs to her or to her husband, with the intention to carry it to the term and hand over the child to the person or persons for whom she is acting as a surrogate. Surrogacy is a boon for people to become parents who are not able due to medical reasons or any other such reasons. Keeping in mind the need of this technology it become necessary to regulate activities related to surrogacy. Before 2021 surrogacy was unregulated in India. Baby Manji Yamada vs. Union of India & Anr,3 Jan Balaz vs. Anand Municipality4 are some cases which highlighted an urgent need to enact the legislation to regulate surrogacy in India.
The Surrogacy (regulation) Bill,2019 with some amendments, enacted as a law on 25th December,2021. It was released with Assisted Reproductive Technology (Regulation) Act,2021 and came into force on 25th January 2022. The Act aims to regulate surrogacy in India. It allows altruistic surrogacy and prohibits commercial surrogacy. Also, it set outs conditions to use surrogacy as alternative reproductive choices. It is essential that a woman
1. Suchitra Shrivastava and Ors. Vs. Chandigarh Administration (2009) 9 SCC 1
2. Meera Santosh Pal vs. union of India (2017)
3. Baby Manji Yamada vs. Union of India & Anr (2008) 13 SCC 521
4. Jan Balaz vs. Anand Municipality (2009)
chosen for surrogacy must be a close relative, married and should have at least one child of her own. And she can be a surrogate mother only for once during her life time. This kind of prohibitions are against the personal liberty of human being. It is not possible for every intended parent to find out a person who will be ready to act as a surrogate mother in their own family and kinship. Also, it should be point out that there might be possibility that the acting surrogate mother may find attachments with the child living in her own family or society. Also, it restricts the LGBTQI community to act as a surrogate mother. Only ever married woman between the age of 25 and 35 can be a surrogate Mother. A person belonging to LGBTQI community, an unmarried woman, can also have capabilities to act as a surrogate mother.
As per the Act, only Married couple (the age of the woman being 23 to 50 years and the age of man being 26 to 55) having medical indications, a woman (divorcee or widow between the age of 35 and 45) can use surrogacy procedures. The intended parent should not have any surviving child and the only exception to this rule is that surviving child must have any disabilities or fatal disease. Only those cases fulfilling above situations would qualify for the use of surrogacy procedure and when there are medical indications, the district medical board must issue this indication certificate. Infertility is considered as a taboo in Indian society. It was held in the case of Justice K.S. Puttaswamy & Anr. vs. Union of India1 that there is violation of the right to privacy in obtaining and showing the certificate of infertility and it is also against the moral and ethical point of view of society to make it compulsory to have a certificate of infertility from the district board and this fundamental right has to be protected. The act limiting only to heterosexual couple and widow or divorcee woman; thus, it restricts the rights of reproductive choices of an unmarried woman, a single man, unmarried couples, old couples and LGBTQI community. The effect of these provision is that is not lawfully offering surrogacy services even altruistic surrogacy to single people, those in a live in relationship or lesbian, gay, bisexual, transgender and queer couples due to criminal sanctions. The act prohibits the use of surrogacy procedure for second child. Right to reproductive choice is a fundamental right and putting restrictions on the choice of a person to have more than one child.
The Surrogacy (Regulation) Act, 2021 has been amended in 2022. Which mandate the intended parent to purchase insurance coverage of thirty-six months. Which is a progressive approach but when evaluating the safety of any medical intervention after or before the birth of the child, it is important not only to consider the immediate potential complications but also to evaluate
1. Justice K.S. Puttaswamy & Anr. vs. Union of India (2017) 10 SCC 1
the potential for associated long term health effect. That long-term health consequences might be on reproductive and mental health outcomes, as well as other outcomes including breast cancer risk and premature death. The surrogacy (Regulation) Act,2021 prohibits commercial surrogacy which is punishable with a jail term of 10 years and a fine up to Rs. 10 Lakhs. Banning commercial surrogacy denies a legitimate source of the surrogates which can be used as a compensation for surrogate mother’s health loss.
Hence, it can be concluded that the certain provisions of The Surrogacy (Regulation) Act, 2021 are inconsistent with basic fundamental & human rights.
An analysis of The Surrogacy (Regulation) Act,2021 with Article 13 of the Indian Constitution: Article 13 of the Indian Constitution makes the concept of fundamental rights more powerful and gives it a real effect. This article protects the fundamental rights by rendering any law null and void if it is inconsistent with the fundamental rights given under part IV of the Indian constitution. Article 13(2) provides that the state shall not make any law which takes away or abridges the right conferred by part IV of the constitution and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 13(2) clearly restricts the power of the legislatures and other law-making bodies so that any law which is inconsistent with the fundamental rights will void-ab-initio.
Certain provisions of The Surrogacy (Regulation) Act,2021 are defiantly contradictory to the fundamental rights. Section 4 (ii) (a) provides that no surrogacy or surrogacy procedure shall be conducted, undertaken, performed or availed of, except when an intending couple has a medical indication necessitating gestational surrogacy. Here couple as per the definition given under section 2 (h) means the legally married Indian man and woman only and intending couple as per section 2 (r) includes only the couples having medical indications. This section further provides rights to intending women to avail the surrogacy procedure only. The intending women as per the definition given under section 2 (s) includes only Indian woman who is a widow or divorcee between the age of 35 and 45. Thus it excludes an unmarried woman, a single man, Couple in live in relationship, Couples belonging to LGBTQI community, a person belonging to LGBTQI community. Suchitra Shrivastava and Ors. Vs. Chandigarh Administration1 & Meera Santosh Pal vs. union of India2 the apex court has recognized the
1. Suchitra Shrivastava and Ors. Vs. Chandigarh Administration (2009) 9 SCC 1
2. Meera Santosh Pal vs. union of India (2017)
right to reproductive choices as a part of the right to personal liberties under Article 21 of the constitution. Article 14 of the constitution provides equality before law and equal protection before law. Thus above mention provisions of the act are in violation of Article 14of the constitution as it does not provides equality. Article 15 provides that the state should not discriminate any person on the basis of religion, race, caste, gender or place of birth. The above mention provision clearly made discrimination on the basis of gender. Parenthood is a basic human right. No person shall b deprived of this right on the basis of his age, marital status, gender etc.
Section 4 (iii) (a) (I) of The Surrogacy (Regulation) Act,2021 mandates a certificate of a medical indications in favour of either or both members of the intending couple or intending woman necessitating gestational surrogacy from a District Medical Board. It was held in the case of Justice K.S. Puttaswamy & Anr. vs. Union of India1 that there is violation of the right to privacy in obtaining and showing the certificate of infertility and it is also against the moral and ethical point of view of society to make it compulsory to have a certificate of infertility from the district board and this fundamental right has to be protected. In the case of surupsingh Harya Naik vs. State of Maharashtra2 it was held that right to medical confidentiality is a fundamental right under Article 21. Article 21 of the constitution provides that no person shall be deprived of his life or personal liberty. Article 21 provides various fundamental rights and it includes Right to privacy as well. The above mention provision is in violation of right to privacy and right to medical confidentiality.
Section 4 (iii) (a) (III) provides that the intended parent or parents should provide an insurance coverage of such amount and in such manner as may be prescribed in favour of the surrogate mother for a period of thirty-six months (3 years only) covering postpartum delivery complications from an insurance company or an agent recognised by the Insurance Regulatory and Development Authority established under the Insurance Regulatory and Development Authority Act, 1999. This provision ignores the life long medical issues of the surrogate mother. There are so many health issues resulted from the pregnancy which last for the life time. It may result in the fatal diseases at the longer period of time. In the case of Life Insurance Corporation of India and Anr. vs. Shri Rajiv Khosla & Anr.3 it was held that the appropriate life insurance
1. Justice K.S. Puttaswamy & Anr. vs. Union of India (2017) 10 SCC 1
2. Surupsingh Harya Naik vs. State of Maharashtra (2017)
3. Life Insurance Corporation of India and Anr. vs. Shri Rajiv Khosla & Anr.(2011)
policy within the paying capacity and means of insured to pay premia is one of the social security measures envisaged under the constitution to make right to life meaningful, worth living and right to livelihood a means for sustenance. Thus, the above mention provision violates the right to appropriate life insurance by providing insurance policy only for 3 years. So we can easily conclude that certain provisions of The Surrogacy (regulation) Act,2021 are inconsistent with Article 14, 15 and 21. Hence according to Article 13(2) should be declare void to safeguard basic fundamental and human rights.
Author: Rohini More
Juris Centre 