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

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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?

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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