Surrogacy, as an occupation, demands regulations and not a blanket ban!
Anmol Jain and Aditya Saraswat[i]
It would not be wrong to state that the last winter session of the 16th Lok Sabha has been quite a roller-coaster ride. It has seen forceful arguments, astonishing debates amid regular disruptions and walk-outs with blames and counters from every faction of the house on certain important and crucial issues ranging from the Rafale Aircraft deal; the law criminalizing triple talaq;the passing of the Citizenship (Amendment) Bill, 2019 seeking to provide Indian citizenship to non-Muslims moving out from Pakistan, Afghanistan and Bangladesh; and the law provisioning 10% quota for economically poor among the general category citizens, inter alia.
One such historic moment was the passing of Surrogacy (Regulation) Bill, 2016 [“the Bill”] by the Lok Sabha on December 19, 2018. The Bill is a resultant of a long-pending demand from the four-corners of the society to regulate commercial surrogacy that has seen various instances of physical and economic exploitation of the surrogate mother, who normally hails from lower income families. Noteworthy to refer is the 228th Report of the Law Commission of India, a suo moto attempt of the Commission, which had recommended to prohibit commercial surrogacy after acknowledging the complexities found in the law. Prior to the introduction of the bill, multiple attempts to regulate surrogacy were made, however all in vain. One of the earliest attempts was the introduction of Assisted Reproduction Technologies (Regulation) Bill, 2008 by Indian Council for Medical Research, which was modified by a 2010 version. In Lok Sabha, Dr Kirit Premjibhai Solanki and Shri Bhartruhari Mahtab took the initial attempts by introducing the Surrogacy (Regulation) Bill, 2014 in the form of two private members’ bills, the first in August 2014 and second in November. Interestingly, the common thread underlined all such futile attempts is that neither of them provisioned for a penal ban on commercial surrogacy.
The present bill, drifting away from all its previous versions, is enacted to primarily ban commercial surrogacy, and additionally, to constitute national and state level surrogacy boards for the regularization of altruistic surrogacy. To clarify the difference between the two, Section 2(b) of the bill defines altruistic surrogacy as:
“the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representatives.”
Whilst, Section 2(f) defines commercial surrogacy as commercialization of the surrogacy services by way of giving monetary payment in addition to medical and insurance charges to the surrogate mother for the rendered services.
Generally, the argument given in favour of banning commercial surrogacy is that it metaphors with selling or buying of embryos and might lead to the commodification of women. [102nd Report of the Parliamentary Standing Committee on Health and Family Welfare, Rajya Sabha. (Aug 2017), ¶4.9]. Additionally, as most of the women who serve as surrogates in India come from the poor strata of the society and are prone to physical and economic torture, thus, it has been argued that it would be better if the government provides them education, training, and jobs rather than allowing them to earn money by renting their womb. [Rajya Sabha, ¶4.2].
Non-forgettable are the two instances, widely aired by the supporters of the ban, which witnessed questions on the rights of the child born out of surrogacy and the exploitation of the surrogate mother owing to non-acceptance of the child by the commissioning parents or non-adequate payment for the services rendered. In one of the instances, Baby Manji Yamada v. Union of India, the delivery of the child was adversely delayed owing to a matrimonial dispute between a Japanese parent and administrative regulations regarding grant of visa; and in the other instance, an Australian couple abandoned one of the twins born as they already had a child of the same sex. Following these instances, India had banned foreigners from hiring a surrogate mother in 2015. In December 2018, after deliberation ranging to approx. 2 years, the Lok Sabha has extended this ban to all persons involved in commercial surrogacy, irrespective of their citizenship.
However, there are certain harsh aspects of the bill, which are least talked about in the citizenry, and this article is an attempt to highlight them alongside proposing an alternative regulating mechanism for commercial surrogacy.
Section 35 of the bill enlists certain conducts from clauses (a) to (f), which includes advertising or undertaking commercial surrogacy, and punishes such conduct with a minimum punishment of 10 years, and with fine which may extend to ten lakh rupees. Ironically, the intending couple and the medical practitioner involved shall be punished with a lower punishment that shall not be less than five years, and with fine which may extend to five lakh rupees [Section 36 and 37]. Further, Section 2(g) defines ‘couple’ eligible for altruistic surrogacy and restricts it only to a union of a man and a woman, and thus excluding homogenous couples and single parents from its purview, which the authors believe is taking a step back undertaking progressive attitude. Surprisingly, if we compare the legal regime prevailing in the United Kingdom or Russia, being married is not a pre-condition to opt for surrogacy. Furthermore, Section 4(ii)(a) of the bill restricts surrogacy to only those couples where one of the partners is proved infertile. Therefore, suffering from any other medical condition such as AIDS, congenital absence of uterus or inability to bear a child would not warrant surrogacy as an option. Therefore, we argue that the bill is laden with numerous regressive provisions, which should be reviewed urgently.
Not only are the provisions regressive, but the Bill also unleashes multiple harsh consequences. Penalizing commercial surrogacy brings with itself a good possibility of opening up of a black market and transportation of women abroad for such services. The magnitude of this possibility is high given the fact that about 10-15% of the Indian couple are infertile that amounts to around 27.5 million couples. [Rajya Sabha, Annexure IV].
If we look at the possible impacts of altruistic surrogacy on families, it has been argued that allowing only altruistic surrogacy might put undue pressure on the close relatives for undergoing the emotional and the physical trauma as all the family members may not be able to resist such a demand [Rajya Sabha, ¶5.8]. Moreover, it might lead to a conflict of interests regarding the custody and motherhood of the child between the relative acting as the surrogate mother and the intending couple [Rajya Sabha, ¶4.1]. Surrogacy shall also demand the surrogate to drop out of any of her jobs and disable her to commit herself completely towards her own family [Rajya Sabha, ¶5.19].
Additionally, there might be situations where asking a near relative for surrogacy becomes a hard task for shy couples. It shall create impediments in the overall well-being of the couples, especially in patriarchal Indian society that respects a wife only if she is a mother. As quoted by the Law Commission, at ¶1.2, “infertility is seen as a major problem as kinship and family ties are dependent on progeny, herein surrogacy comes as a supreme saviour”.
These apprehensions attract development of commercial surrogacy as an industry, which is already growing at a fast pace and has been recorded to be of $2 billion per year by the Confederation of Indian Industry in a 2012 study. The statistics become significant, given the growing number of nations prohibiting commercial surrogacy, which might further expand the already expanding medical tourism in India and enable the surrogates to earn a good standard of living for their families.
Considering the entirety of the circumstances, facts and probabilities, we argue that commercial surrogacy does not warrant criminalization but a comprehensive regulatory mechanism. Before moving on to suggest an alternative regulatory mechanism, the article shall reflect on the constitutional challenge on the bill.
Article 19(1)(g) ensures to all citizens a right to practice any profession or to carry on any occupation, trade or business. Being not an absolute right, Article 19(6) provides certain grounds on which the said right can be reasonably restricted. These include (i) restrictions in the interest of the general public; (ii) prescribing the professional or technical qualification for carrying on any profession; or (iii) nationalization of the business. To be a constitution-compliant law, the Surrogacy (Regulation) Bill, 2016 has to present itself in the ‘interest of the general public’, but it fails.
The Supreme Court of India, in Chintaman Rao v. State of MP [AIR 1951 SC 118], has correctly confined the scope of rather generally worded restrictions of Article 19(6):
“The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interest of public. The word ‘reasonable’ implies intelligent care and deliberations, that is, the choice of the course which reason dictated. Legislature which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed under Art. 19(1)(g) and the social control permitted by clause (6) of Art. 19, it must be held wanting in that quality.”
Therefore, the standard for reasonableness of a restriction under Article 19(6) is a proper balance between the individual right of occupation and social control guided by reasons. Following the same logic, the Supreme Court had held that a total ban on dance performances in certain eating houses was far in excess of what is required and thus, unconstitutional. [State of Maharashtra v. Indian Hotel and Restaurant Association, AIR 2013 SC 2582]. In 2014, following the footsteps of the Hon’ble Supreme Court, the Karnataka High Court also struck down a similar provision.
Similar is the case with commercial surrogacy and the aforementioned cases provide enough guiding path. A choice to indulge in the surrogacy business is an individual choice. Indeed the government possesses the power to regulate the affairs of the business and is morally obliged to create an environment for its healthy conduct and development, but a blanket ban depicts its non-competency to protect multiple business avenues for its subject from the evil elements. A reasonable restriction, guided by reasons, in the present matter would have been an institutional arrangement regulating the surrogacy market. [For instance, see Assisted Reproduction Technologies (Regulation) Bill, 2010 and Surrogacy (Regulation) Bill, 2014] Criminalizing the practice completely negates the individual freedoms and fails to strike the mandatory balance required between individual freedom and social control.
We find evidences of similar approach in the United States where the practice of allowing or prohibiting commercial surrogacy is not constant across all the States of the United States. Jurists have argued that prohibiting commercial surrogacy limits the freedom of the women to use their reproductive agencies and right over their own bodies regarding the opportunities available and their consequences.[ii] They have treated surrogacy at par with any other labour activity and thus, argued that the Government shall offer protections and regulations to enhance the quality of consequences.[iii]
In its recent judgment in State of Bihar v. Dr. Sachindra Narayan, the Supreme Court has reiterated the law on legitimate expectations and held, citing Union of India v. Hindustan Development Corporation, that:
“The legitimacy of an expectation can be inferred only if it is founded on a sanction of law or custom or an established procedure followed in regular and natural sequence. … Such expectation should be justifiably legitimate and protectable. … legitimate expectation can at most be one of the grounds which may give rise to judicial review.”
Article 19(1)(g) provides a forceful sanction of law which makes it imperative for the government to secure the avenues for business, regulate it and provide security to the stakeholders involved. It creates a legitimate expectation for the protection of their right to business in the minds of the surrogate, which must be honoured by the Government. Moreover, allowing altruistic surrogacy is a self-evident of the fact that ‘surrogacy’ per se as a practice is not considered as immoral in the society, obliging the Government to protect it.
Prohibiting commercial surrogacy also affects multiple rights of the intended parents. It is an established fact the guarantees under Article 21 of the Constitution and Universal Declaration of Human Rights envisages a right to procreation, and surrogacy ensures due fulfilment of this right. Couples, who are unable to procreate by themselves, including same sex couples and single parent, mostly prefer surrogacy and scholars have equated its denial with forced sterilization.[iv] We argue that such an understanding of right to procreation imbibes a right to choose the surrogate mother, and restricting such choice to near relatives becomes an unreasonable restriction on Article 21. Moreover, the Puttaswamy Judgment has held that the right to privacy is implicit in Article 21 and it safeguards the privacy of one’s reproductive decisions, unless one forces a woman for surrogacy. Hence, we argue that the Bill is laden with constitutional infirmities.
Escrow Arrangement: An alternative to criminalizing commercial surrogacy
The bill already provides for constitution of national and state level surrogacy boards. We propose that this setup be extended to district level and with the prime obligations of the district surrogate boards to (i) register competent surrogates, (ii) check that the surrogacy contracts are honoured, (iii) register and supervise the Assisted Reproductive clinics, and (iv) sue any intending couple on behalf of the surrogate who does not honour the surrogacy contract. [Clarification: employing any unregistered surrogate, except those eligible under altruistic surrogacy should be penalised].
One of the prime concern raised by the supporters of the ban is that the intending couple does not make the payment after taking the services and in some instances, rejects to accept the surrogate child. To check such situations, a ‘standard surrogacy contract’ should be drafted by the concerned authorities, which shall be a four-party contract, obligating the intending couple to deposit a certain amount with the district board before using the services of the surrogates. It shall ensure that upon the completion of services, adequate monetary compensation is paid to the surrogate and on the other hand, if the surrogate does not deliver the custody of the child, the deposited amount can be returned to the intending couple.
With respect to the specifics of the deposit, it should include the price of the services rendered, medical expenses, insurance costs, social costs (cost of inability of the surrogate to commit herself completely to her family during the period of pregnancy) and psychological costs. The deposit should comprise of summation of the amount under each head, which shall be determined by the appropriate authority based on a generalist view (the minimum amount which is always spent in each case). Any additional expense shall be paid after the completion of the services.
Coming to the four-parties, they shall be: (i) the surrogate mother; (ii) the district surrogacy board; (iii) a representative of the intending couple; (iv) a nominee of the intending couple. The nominee shall have two primary responsibilities: (a) be liable to make any additional payment in a situation when the intending couple refuses or is incapable to do so; (b) accept the custody of the child if the intending couple refuses or is incapable to do so. For the want of security, the nominee is mandatorily to be an Indian national.
Further, to differentiate the domain of adoption and surrogacy, it should be made mandatory that one of the partners of the intending couple has to be the donor. Such donor shall be the only person to accept the custody of the child. Therefore, in cases of divorce while the services are taken, then the donor shall be obliged to accept the custody of the child; and in cases where both the partners are infertile, then adoption shall be the legal option.
Furthermore, as has always been followed in the Indian jurisdiction, there should be an automatic transfer of custody of the child from the surrogate to the intending couple. The law should not require a separate adoption agreement between the surrogate mother and the intending couple.
Surrogacy is a growing industry in India. Though we cannot overlook the evils of the industry, however, we also cannot ignore the high number of infertile couples in India and their wish to have a child of their own. This need is also reflected in the history of surrogacy regulation bills, which only provision for the regulation of the industry and not criminalizing commercial surrogacy.
Before resting, we wish to urge the incumbent to unfollow its precedents of creating crime, or making the existing crimes more stringent, as a solution to every social problem. For instances, the Criminal Laws (Amendment) Act, 2018 punishes a rape of the minor below 12 years of age with death penalty. Post which, the Lok Sabha passed the Muslim Protection (Protection of Rights on Marriage) Bill, 2017 criminalizing triple talaq. And now is the turn of commercial surrogacy. In near future, we are expecting the Protection of Children from Sexual Offences Act to be amended to provide more stringent provisions to check child sexual abuse. we believe that the commission of a ‘wrong’ is guided by the infected character of an individual and not by the fact that the legislature has provided an easy punishment for the ‘crime’. It is the high time to work on the socialization process of individuals in society and transformation in one’s attitude.
Therefore, the authors urge that the
alternative escrow arrangement, in form of a standard surrogacy contract under
the supervision of the district surrogate boards, should be adopted by the
[i] The authors are third-year students at National Law University.
[ii] Julie Shapiro, For a Feminist Considering Surrogacy, Is Compensation Really the Key Question?, 89 Wash. L. Rev. 1345 (2014).
[iii] Sonia Allan, The Surrogate in Commercial Surrogacy: Legal and Ethical Considerations, in Surrogacy, Law, and Human Rights 129 (Paula Gerber & Ketie O’Byrne, eds., 2015).
[iv] Peter Nicholas, Straddling the Columbia: A Constitutional Law Professor’s Musings on Circumventing Washington State’s Commercial Prohibition on Compensated Surrogacy, 89 Wash L. Rev. 1235 (2014).