We Droit Penale: ILJCC have taken an initiative of starting our blog "Droit Penale NewsLetter" this shall be maintained by few members of our organisation.
This blog shall have the latest updates regarding legal facets of the societies at large. We invite bloggers to connect with us and share views or submit articles which can be posted and shared through this blog.
The Author is Vrinda Sareen pursuing BA LLB (Hons.) from Amity University, Noida. She is also working as Sub-editor with Droit Penale Newsletter.
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 theadventofscienceandtechnology, agreatchange has been broughtinthelifeofahumanbeings. It furtherhada significantimpactontheconceptofsurrogacy which changed theconcept ofmotherhoodhas intogeneticmother,surrogatemother,biologicalmotherandsocialmother. 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 228th
Report which came in 2009, advised for introducing legislation to regulate the
practice of surrogacy in India.
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.