A Lawyer’s Take On Why The Proposed Surrogacy Ban Has No Moral Or Legal Basis

Posted on November 1, 2016 in Society

By Kunal Basu:

Sushma Swaraj seems to have embroiled herself in another controversial debate over her outrageous statements on surrogacy. The MEA minister, seems to be of the opinion that commercial surrogacy should be prohibited and allowed only to infertile needy couples – read as heterosexual, ‘normal’, ‘sanskari’ people. It could be very well argued that Ms. Swaraj is a product of a class bygone that has consistently tried to protect traditional Indian cultural thoughts and ethos, whilst ousting eccentric philosophies threatening to impede the latter’s steady growth.  But this is a wholly wrong approach.

Under our Constitution, the right to life also includes the right to reproduction as well. The Supreme Court has held this judicial stance rigidly in ‘Suchitra Srivastava vs. Chandigarh Administration’ (2010 SC 235) wherein it stated in no uncertain terms that the right to make reproductive choices was guaranteed to a woman under Article 21 of the Indian Constitution. Perusal of this judicial ruling would make it appear that concept of ‘rent-a-womb’ could be available to desiring to-be-parents suffering from sterility problems. However, conservative Indian stances has once again challenged its validity by assailing third-party surrogacy methods (TPSMs) as contrary to established cultural ethos.

In ‘Naz Foundation vs. UT Delhi’ (2009) the issue of law was regarding whether Section 377 of the IPC that criminalised homosexuality ought to be scrapped. The Delhi High Court held a sensible opinion that the aforementioned provision of law was repugnant to an individual’s right to live life with dignity under Article 21 of our Constitution. However the Supreme Court scrapped the High Court’s ruling that only Parliament, and not the judiciary, could amend the true meaning of the statute law and criminalised homosexuality.

In the United States, the issue of legalisation of abortion was decided in ‘Roe vs. Wade’ (1973) 410 US 113 by the United States Supreme Court in stating that a woman’s right of abortion is a fundamental right under the Constitution. The Court based its conclusions on the premise that the right to reproduction vis-à-vis right to create life also included a fundamental right to terminate it as well. This is perhaps, the first time that women’s civil rights have been upheld by the Courts in matters concerning their legal right to give birth to and abort a baby.

In 2010, Yonaton and Omer Gher from Israel made history when a Mumbai-based woman agreed to play a surrogate mother and help them birth a child. Although the Ghers’ is one particular case, it shows that desire for a child is a much sought after ambition for any person, irrespective of their sexual or cultural orientation.

There is nothing wrong in engaging in assisted reproduction techniques (ARTs) towards birthing a child. The consenting parties only have to enter a written tripartite contract, under which legal consideration is paid to the contracting surrogate parents by the consenting sterile participants. Where money is already tendered to the participant surrogate parent, it should ordinarily fulfill the terms of the contract in se. Discharge of contract would normally take place where the money has been credited to the surrogate parent in furtherance of execution of reciprocal obligations.

If we are to follow cultural ethos, that would mean the eventual death of cultural eccentricities. India is not only a nation filled with various religions and cultural personalities, but also a place where people of all sorts – whether straight, lesbian, gay or otherwise – reside as its citizens.

Can there ever be a law decreeing outlawing of queer practices? Obviously not, as the judiciary would strike it down as repugnant to the Constitution. The provisions in the 2016 Bill restrict surrogacy to only infertile couples who are 26-55 years old and married for at least 5 years. But the Indian Contract Act read with the Indian Majority Act merely states that a person is a major if he is above 18 years of age and has the capability to rationalise logically. Young men and women are entering live-in relationships at young ages. Similarly, under the 1955 Hindu Marriage Act, law states that marriage between a boy and girl is allowed if they are 21 and 18 years old respectively.

If effective birth control methods can be used judiciously by youngsters and young adults mature enough to understand the consequences of their actions, then why not artificial surrogacy methods? Does a girl not have the right to artificially give birth to a baby even at 22 if she is sterile? Our laws only lay down criteria for marriage, divorce and judicial separation and no more than that. Apart from the current Bill, where is there any legal provision that bans surrogacy on moralistic and ethical grounds of it contravening customary practices and rituals?

As an advocate, I believe that the proposed Bill must be struck down as repugnant to not only our Constitution but also for protecting civil and fundamental rights of mothers-to-be. Article 14 of our Constitution provides not only equality before the law but equal protection of the laws as well. If the right to abortion and surrogacy are recognised by international covenants and the United States, why should we cling on to conservative cultures, especially where there seems to be no legal or constitutional impediment towards allowing a sterile woman to engage in surrogacy if she desires an offspring?