SURROGACY (REGULATION) BILL, 2019

The Author is Vrinda Sareen pursuing BA LLB (Hons.) from Amity University, Noida. She is also working as Sub-editor with Droit Penale Newsletter.

“Freedom of thought, freedom of assembly and the liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow; without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse or wrong” – John Stuart Mill

With the  advent  of  science  and  technology, a  great  change has been brought  in  the  life  of  a  human  beings. It further  had  a significant  impact  on  the  concept  of  surrogacy which changed the  concept of  motherhood  has   into  genetic  mother,  surrogate  mother,  biological  mother  and  social  mother. Provided the law governing surrogacy has assumed greater importance in India as India is often called as the ‘surrogacy capital of India’ as well as prior to 2008 there was no law governing the practice of surrogacy. In 2005, The Indian Council for Medical Research laid down certain guidelines but it did not formed any legal basis for surrogacy and the practice remained ungoverned in India’s legal framework.

The year 2008 is marked as the turning point with respect to the concept of surrogacy when the Supreme Court gave its decision in the case of Baby Manji Yamda v. Union of India, in which the issue was revolving around surrogacy. Simultaneously, there was formulation of Assisted Reproductive Technology (Regulation) Bill, 2008 but it was not tabled before the parliament. This encouraged the Law Commission to suo moto take the issue of surrogacy for analysis. The Law Commission in its 228^th Report which came in 2009, advised for introducing legislation to regulate the practice of surrogacy in India.

Meanwhile, the Surrogacy (Regulation) Bill, 2016 was adopted and it differed from the Bill of 2014 in many aspects. The bill was passed by the Lok Sabha on 19.12.2018 but it was not introduced in the Rajya Sabha. Thereafter, the bill of 2016 in the same form was re-introduced in the Lok Sabha as Surrogacy (Regulation) Bill, 2019 and was passed on 05.08.2019.

The bill provides for the complete ban on commercial surrogacy and prohibits various categories from adopting the process of surrogacy such as Foreign nationals, LGBT persons, single parent’s and partners in live-in-relationships. Such provision is in conflict with the provisions of adoption laws as it allows such classes to adopt a child and does not stand the test of Constitution of India as well.

Presently, the bill is referred to the 23 member Select Committee of Rajya Sabha.

Taking the present scenario into consideration it is noticed that the ban imposed and the restrictions violates the provisions of the constitution under Article 14 which guarantees equality before law and equal protection of laws to all persons and Article 21 which guarantees protection of life and personal liberty of all persons, particularly in context of ‘single parent’ which includes those who have lost their wife or husband and do not wish to get remarried but wish to have child of their own. This violates the provisions given under Adoption law which expressly allows the single parents or a divorced person to adopt, this clearly indicates that both the Adoption law and Surrogacy law aims for the same purpose i.e. founding a family and surrogacy law needs to be drafted in such a manner that it complements the adoption law. Further the ban on foreign couples denies the fruits of ART clinics on the basis of an artificial classification, which violates the most basic of the human rights to procreate.

Further there are various international instruments which provides for right to parenthood such as ICCPR and UDHR such as Article 23(1)(b) of ICCPR which entails the right to reproductive health and education.

Thus the right to procreate and parenthood does not fall within the domain of the state and does not warrant interference of a fundamental right. Further the classifications being made are arbitrary and violative of the most basic of the human rights.