Thanks to the Surrogacy (Regulation) Act, 2021 (SRA) and Assisted Reproductive Technology (Regulation) Act, 2021 (ART), surrogacy will now be available only to infertile Indian married couples and single widowed/divorced women. All other categories of persons, including single men, foreign nationals and foreign couples, have been excluded.
Anomalous and inconsistent as it may seem, in matters 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. Juvenile Justice (Care & Protection of Children) Act, 2015 (JJA), allows a court to give a child in adoption to foreign parents irrespective of marital status of a person. Latest Adoption Regulations, 2017 have streamlined inter-country adoption procedures, thereby permitting single parent adoptions with the exception of single male persons from adopting a girl child. Provisions of Transgender Persons(Protection of Rights) Act, 2019, also fall foul of ART, 2021. This will open a Pandora’s box of litigation in the Supreme Court.
Commercial surrogacy for foreigners has been shut down overnight. Even medical professionals can no longer practice surrogacy for foreign parents.
ART 2021 restricts ethical, altruistic surrogacy to legally wedded infertile Indian couples where a husband must be between 26 and 55 years of age and wife between 23 and 50 years. Certificates of proven infertility/expert medical reports of either spouse or of intending couple from a District Medical Board are mandatory. Overseas Indians, foreigners, unmarried couples, single parents, live-in partners, and LGBTQIA are barred from commissioning surrogacy. Now on, a surrogate cannot be an NRI or a foreigner. 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 10 years and a fine extending to INR 10 lakh. All surrogacy clinics will require mandatory registration under the new law. National and state surrogacy boards shall advise, review, monitor and oversee implementation of new law.
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But this ban on 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.
Permitting limited conditional surrogacy to married Indian couples and disqualifying other persons on basis of nationality, marital status, sexual orientation or age does not pass the test of equality. 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 the right to life under Article 21 of the Constitution.
The 2018 judgment of the Supreme Court in the Shafin Jahan case recognises the right to choose one’s life partner as an important facet of right to life, holding that social approval of intimate personal decisions should not be a basis for identifying them. The Supreme Court in the Puttaswamy case held that a promise of a right of privacy is embedded in Article 21 of the Constitution. The Supreme Court liberalises equality and equal protection of laws whilst Legislature restricts it
A rational approach would be to introduce a process of checks and balances. A similar parallel exists in matters of adoptions. CARA, a statutory body under JJA 2015, functions smoothly to regulate all adoption matters. Law steps in to check, but not to bar eligible persons from adopting children. 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 without offending equality of law and equal protection of laws to individuals.
The interests of various stakeholders need to reconcile at this intersection of medical science and law. Government must make a restrictive and regulatory law, but not ban surrogacy. There can be no dictatorship in surrogacy.
The author is a legal commentator and alumnus of SOAS, University of London