Surrogacy Bazar in India: Stop it!

By: Parmanand Pandey (Advocate, Supreme Court)

Surrogacy is not a simple issue, it throws up ticklish and contentious questions of law and ethics, although it has got the religious sanctions and there have been innumerable examples where the children have been born by the niyog which is a type of surrogacy. Babylon law also allowed this practice where a infertile women could use another women to bear a child for her, however with passage of time and development of science the surrogacy has the form of an industry. There are two types of surrogacy one is altruistic and the other is commercial. A woman who bears a child for her infertile sister or a mother who gives birth to her infertile child is certainly an altruistic surrogacy but when a woman allows her womb on rent to be used as a container or a vessel that is not better than the prostitution. This type of exploitation of women has peeked in the last one decade in India. This was the reason that till a few years ago India became the centre of surrogacy tourism. Once the altruistic surrogacy is legalised there is no proof that it will not lead to commercial market. If it is legalised, then a woman will bear a child as laid out in contract and the black market will certainly develop. Another question which is asked whether altruistic surrogacy is more humane or it is just like a trafficking.The distinct ion between altruistic and commercial surrogacy is considered to be very thin because in both the cases a women is reduced to a container.Instead of being an existential and spiritual experience for women pregnancy is made to serve others.The union cabinet has already approved surrogacy regulation bill 2016 which has yet to be presented in the parliament.Had this bill been passed into an act Karan johar and other of his ilk like Tushar Kapoor,Shahruk khan and Aamir khan would have been in trouble. The bill  is still being examined by the parliamentary standing committee which expressly allows  only infertile and legally wedded Indian couples to have children through surrogacy. The Supreme Court of India is flooded with bench of petitions seeking direction to make representation before the parliamentary committee for the inclusion of specific provisions so as to facilitate single persons to have parenthood through surrogacy. The Supreme court has asked the government to take the representation for consideration of the single parenthood.

The bill propose blanket ban on commercial surrogacy restricting ethical and altruistic surrogacy to legally wedded infertile Indian couples who have been married for at least five years. The husband must be between 26 to 55 years and the wife must be between 23 to 50 years of age.

Overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay and lesbian couples are barred from commissioning the services of surrogate mother. Only a married blood relative, who must have herself born a child and is not a NRI or a foreigner can be a surrogate mother once in a lifetime. Indian couples with a biological or adopted children are prohibited from having children through surrogacy. Commercial surrogacy will result in a jail term of at least ten years and a fine of up to 10 lakhs.

The proposed law is undoubtedly very stringent and fly’s in the face of articles 14 and 21 of the Constitution of India. While the former guarantees equality before the law and equal protection of laws to all and the latter guarantees protection of life and personal liberty of all persons. Therefore, restricting conditional surrogacy to married Indian couples and disqualifying others on the basis of marital status sexual orientation and age does not qualify the test of equality. Right to life as guaranteed by article 21 includes the right to reproductive autonomy like those of pro creation and parenthood. Constitutionally the state cannot interfere in the prerogative of any person to have children, naturally or through surrogacy. Infertility cannot be a prudent condition to undertake surrogacy. Alternative reproductive technology has already got much acceptance in the society. The barring of foreigners to prevent the misuse of surrogacy could prove to be counterproductive because the yardstick governing domestic altruistic surrogacy will offer an opportunity for corruption and exploitation pushing surrogacy into unethical hands leading to the growth of underground abusive trade in surrogacy.

There are many more issues which have not been addressed to in the proposed bill like what would be the rights of the child if the adoptive parents reject it midway or after birth, rights of surrogate mother if she faces heath issues during and after pregnancy or the rights of the family of surrogate mother if she loses life in the process of child birth. Similarly, what about those people who get married late in life, should they wait for five years till they can opt for surrogacy? what about single women who don’t want to marry but want to be a mother nevertheless. There is no doubt those who advance their arguments on the strength of equality before law forget the problems of surrogate mother. The poor, illiterate women of rural background are often persuaded in such deals by their spouse or middlemen for earning easy money. These women have no right on decision regarding their own body and life. Although surrogacy agreements are made under Indian contract act of 1872 and other applicable laws but in practice it has been seen that they are violated. Surrogacy is very irritating in deciding the citizenship and legal status of the children for example a gestational mother playing surrogacy for the US or British couples or any other country will get the benefits under the contract act but what would be the legal status and the citizenship of children resulting from surrogacy arrangements. In some country’s the child becomes the citizen by birth but in some country the child is not entitled to get citizenship because the surrogate mother is not the legal parent of the child. This may result in a child being born without citizenship.   

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