{"id":10178,"date":"2016-10-17T11:00:30","date_gmt":"2016-10-17T05:30:30","guid":{"rendered":"http:\/\/www.tarshi.net\/inplainspeak?p=10178"},"modified":"2018-08-29T12:24:50","modified_gmt":"2018-08-29T06:54:50","slug":"blog-roll-govt-rethink-surrogacy-bill","status":"publish","type":"post","link":"https:\/\/www.tarshi.net\/inplainspeak\/blog-roll-govt-rethink-surrogacy-bill\/","title":{"rendered":"The Government Must Rethink the Surrogacy Bill"},"content":{"rendered":"

By\u00a0Chithra P. George<\/strong><\/p>\n

The draft Bill appears to have\u00a0been framed without addressing the actual concerns of the surrogacy arrangements in India, and could do more harm than good by leading to the exploitation of women.<\/h5>\n

For Robert Brown, all love begins and ends with motherhood; by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood. It is no longer an indivisible instinct of a mother to bear and bring up a child. With advancement of reproductive science, now, on occasions, the bearer of the seed is a mere vessel, a nursery to sprout, and the sapling is soon transported to some other soil to grow on. Now, it is Law\u2019s turn to appreciate the dichotomy of divine duty, the split motherhood.<\/em>
\n\u2013\u00a0P. Geetha vs The Kerala Livestock Development Board<\/em><\/p><\/blockquote>\n

The new Surrogacy (Regulation) Bill, 2016<\/a>, passed by the union cabinet raises some serious legal and ethical concerns. Its provisions, not yet in the public domain, prima facie<\/em> suggest that the Bill, if passed, may not per se<\/em> be in consonance with the constitution.<\/p>\n

The proposed law \u2013 mostly in line with similar laws in other countries\u00a0and the 228th report of the Law Commission of India<\/a> \u2013 provides for a blanket ban on commercial surrogacy and only permits altruistic surrogacy by a close relative, who must have given birth to a child.<\/p>\n

This in itself is problematic as it could violate the woman\u2019s\u00a0fundamental right to livelihood \u2013 in this case through surrogacy \u2013 as guaranteed under Article 21<\/a> of the constitution. Also, the restriction that the surrogate must\u00a0only be a \u2018close relative\u2019 of the commissioning parents may result in ethical issues wherein the child and the surrogate develop an intimate bond, given that both are known, accessible and related to each other. Moreover, if the surrogate wishes for her name to remain undisclosed, how will her privacy be protected when the deal will be happening within the family? Besides, the commissioning couple may face difficulties in finding a close relative who will willingly render the surrogacy service.\u00a0Prohibiting commercial surrogacy in favour of surrogates from within the family may thereby turn surrogacy into a black market business, or lead to the victimisation and coercion of subjugated and oppressed women in marital homes to bear a child for their relative.<\/p>\n

How does the government plan to tackle the issue of violation of a woman\u2019s right to health and bodily integrity that may arise as a result of this provision?<\/p>\n

A further provision of the Bill allows\u00a0surrogacy only to\u00a0legally-married infertile Indian couples, who have been married for at least five years. This is an archaic provision that is reflective of the patriarchal Indian mindset that a woman, if fertile, should bear a\u00a0child herself rather than resort to scientific marvels that are otherwise available. This plausibly violates the \u2018right to reproductive autonomy\u2019 as laid down in B.K. Parthasarathi<\/em> vs Government of Andhra Pradesh<\/em><\/a>.<\/p>\n

The decision about reproduction is essentially a part of a person\u2019s personal domain and should be left to the couple. Also, the requirement of a five-year wait after marriage to enter into a surrogacy arrangement and the age restriction of the commissioning parents \u2013 for the\u00a0father\u00a0to be between 26 and 55 years and the mother to be between 23 and 50 \u2013 do not set out a robust intelligible differentia and rational nexus with the objects that are sought to be achieved.<\/p>\n

Further, the decision to keep single men and women, LGBTs, divorced and judicially separated couples,\u00a0as well as live-in couples out of the purview of the draft Bill is retrograde.<\/p>\n

The National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, 2005 issued<\/a> by the Indian Council of Medical Research, permits single women to use ART. In addition, the Hindu Adoptions and Maintenance Act<\/a> and the Juvenile Justice (Care and Protection of Children) Act, 2015<\/a> permits conditional adoption for\u00a0single and divorced persons. There appears to be no element of prudence in allowing single people to adopt while prohibiting them from opting for surrogacy.<\/p>\n

Also, by virtue of the fact that being LGBT or being in a live-in relationship is not illegal per se<\/em>, disallowing the right to choice vis-\u00e0-vis surrogacy is a sheer violation of their right to equality guaranteed under Article 14<\/a>.<\/p>\n

Another aspect of the Bill is that to enter into a surrogacy arrangement, it is a prerequisite for the commissioning couple to not have any physically and mentally fit biological or adopted children. This provision appears\u00a0as an imposition by a\u00a0police state on the rights of a couple\u00a0to procreate through the means of their choice.<\/p>\n

International surrogacy arrangements<\/strong><\/p>\n

Reproductive tourism has led to a large number of people travelling to India, especially for the purpose of entering into surrogacy arrangements. This at times\u00a0leads to complexities such as citizenship, custody of the child in case of abandonment by commissioning parents and visa issues.<\/p>\n

India first witnessed the issue of a child being left stateless in the case of Baby Manji Yamada vs Union of India<\/a><\/em>. In Jan Balaz vs<\/em>. Anand Municipality & Ors.<\/em><\/a>, the Gujarat high court had to adjudicate upon a case relating to the issue of citizenship of twin children who were born out of surrogacy in India when the commissioning parents\u2019 home state of Germany had refused to grant citizenship to the children.<\/p>\n

We have also seen\u00a0the struggle<\/a>\u00a0of Israeli gay couple Yonatan and Omer Gher\u00a0to take their baby Evyatar, born through surrogacy in India, back due to the legal battles they had to face in their country.<\/p>\n

The government\u2019s objective of keeping foreigners and persons of Indian origin outside the realm of surrogacy in India\u00a0can be justified on a two-fold basis: first, to\u00a0avoid complexities related to nationality and the like; and second, to\u00a0prevent Indian women becoming exploitative business tools in the hands of non-citizens.<\/p>\n

However, barring NRIs from opting for surrogacy in India appears to be an unreasonable provision as there isn\u2019t any reason to\u00a0treat them differently from citizens living in India. The reason for this arbitrary differentiation does not prima facie<\/em> have a rational nexus with the objects sought to be achieved.\u00a0At a time when NRIs are treated at par with Indians living in the country in terms of priority for adoption as per the Central Adoption Resource Authority, there are serious doubts on whether this provision in the\u00a0draft Bill will qualify the twin test of reasonableness under Article 14 of the constitution.<\/p>\n

Way forward<\/strong><\/p>\n

The draft surrogacy Bill gives an impression that it has been framed without addressing the actual concerns of the surrogacy arrangements in the country. The proposed legislation may do more harm than good by leading to the exploitation of surrogates through coercion and undue influence or by trafficking them to permissible jurisdictions.<\/p>\n

At an age when we have been unable to check the underground practises of sex determination and organ donation, are our law enforcement agencies efficient enough and well-equipped to implement this law effectively? Will we not be accountable for facilitating the creation of \u2018surrogacy havens\u2019 outside the country?<\/p>\n

The need of the hour is to regulate the unregulated surrogacy market to ensure and protect the rights of surrogates vis-a-vis the rights of the commissioning parents and children born as a result of such arrangements. The government should rethink the proposed law on surrogacy to safeguard the constitutional rights of the stakeholders considering the social, legal and ethical dynamics of this sensitive subject for the formation of a progressive regulatory framework.<\/p>\n

\n

Chithra P. George is a lawyer based in\u00a0Kerala. This article was originally published<\/a> on The Wire.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The draft Bill appears to have been framed without addressing the actual concerns of the surrogacy arrangements in India, and could do more harm than good by leading to the exploitation of women.<\/p>\n","protected":false},"author":25,"featured_media":10179,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[85,1,959],"tags":[60,946,509,304],"class_list":{"0":"post-10178","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-blog-roll","8":"category-categories","9":"category-parenting-and-sexuality","10":"tag-law","11":"tag-parenting-and-sexuality","12":"tag-reproductive-health","13":"tag-surrogacy"},"menu_order":0,"_links":{"self":[{"href":"https:\/\/www.tarshi.net\/inplainspeak\/wp-json\/wp\/v2\/posts\/10178","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.tarshi.net\/inplainspeak\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.tarshi.net\/inplainspeak\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.tarshi.net\/inplainspeak\/wp-json\/wp\/v2\/users\/25"}],"replies":[{"embeddable":true,"href":"https:\/\/www.tarshi.net\/inplainspeak\/wp-json\/wp\/v2\/comments?post=10178"}],"version-history":[{"count":5,"href":"https:\/\/www.tarshi.net\/inplainspeak\/wp-json\/wp\/v2\/posts\/10178\/revisions"}],"predecessor-version":[{"id":14993,"href":"https:\/\/www.tarshi.net\/inplainspeak\/wp-json\/wp\/v2\/posts\/10178\/revisions\/14993"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.tarshi.net\/inplainspeak\/wp-json\/wp\/v2\/media\/10179"}],"wp:attachment":[{"href":"https:\/\/www.tarshi.net\/inplainspeak\/wp-json\/wp\/v2\/media?parent=10178"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.tarshi.net\/inplainspeak\/wp-json\/wp\/v2\/categories?post=10178"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.tarshi.net\/inplainspeak\/wp-json\/wp\/v2\/tags?post=10178"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}