Mayur Kulkarni

By narrowly defining the essential terms and over criminalization the bill fails to provide both holistic rights and enforceable remedies.

The Lok Sabha recently passed the Surrogacy Regulation Bill 2019, banning commercial surrogacy and allowing only ‘altruistic surrogacy’. The Bill was first tabled in the lower house in November 2016, and then was referred to the Parliamentary Standing Committee on Health and Family Welfare. It was reintroduced in December 2018 and was passed by the Lok Sabha, but later got lapsed. The 2019 bill is identical to the Bill that was introduced in 2018.

The Bill lacks a holistic approach to address the rights and liabilities of all the stakeholders. It appears to be an attempt to further the pre-existing prejudices and lacunae rather than being futuristic and inclusive in its approach. The Bill suffers from definitional narrowness; it does not provide surrogacy rights to homosexual couples and does not discuss the rights of the surrogate mother and the surrogate child.

Definitional Problems

The Bill mandates that the surrogate mother has to be a ‘close relative’ of the intending couple (the couple whose child will be born through surrogacy). The term close relative is not defined in the Bill, which creates ambiguity as to who exactly can be a surrogate mother. The question as to what relations can be taken as close relatives is left unanswered by this definition.

The bill defines ‘infertility’ as inability of the couple to conceive. This is a narrow definition given to infertility. The definition of infertility becomes important here because only infertile couples are allowed to initiate surrogacy. The definition does not include situations wherein the intending mother is able to conceive but is unable to sustain the conception throughout the period of pregnancy and suffers miscarriages for reasons including infection, hormone problems, immune system responses, uterine abnormalities, etc. Multiple miscarriages and not only inability to conceive compel couples to opt for surrogacy. Thus infertility should be broadly defined to include all possible situations where the intending couples are unable to have a child.

Homosexual Couples cannot initiate surrogacy

The definitional issues in the Bill further impact homosexual couples. The Bill defines ‘couple’ as legally married Indian man and woman above the age of 21 years and 18 years respectively. This definition does not include homosexual couples. The Supreme Court in Navtej Johar v. Union of India, decriminalized consensual same-sex relationship between consenting adults. It also held that law cannot discriminate against same-sex couples and must “take positive steps to achieve equal protection”. Consensual same-sex relationships cannot be construed as arrangements for fulfillment of sexual desires only. Now that homosexual couples can live together, they also posses the right to have meaningful familial relations and as children are an inseparable part of any family, homosexual couples should also be allowed to initiate surrogacy and have children of their own. The definition of couple given in the Bill would not allow this as it is clear that a couple means legally married man and woman. In countries where same-sex relationship is allowed, the same-sex couples also have surrogacy rights and are included in the definition of intended parents.

Also the Bill should have provided for partial surrogacy which would allow homosexual couples to go for surrogacy. Partial surrogacy refers to surrogacy arrangements in which the surrogate mother’s genetic material is used to conceive the child. On the contrary, this Bill prohibits use of surrogate mother’s genetic material in surrogacy. The Bill also does not allow use of genetic material of third party apart from the intending couple. Thus this makes it practically impossible for same-sex couples to have a child through surrogacy under this Bill. In the US, states like Florida and Virginia allow partial surrogacy. Countries such as South Africa and Canada also allow partial surrogacy and give rights to same-sex couples to initiate surrogacy which should be emulated.

Also the definition of ‘couple’ under this bill excludes single persons, widows and widowers, transgenders and persons in live-in relationship from its purview which is clearly unreasonable and discriminatory. Thus the definition of ‘couple’ under this bill should be widened to include all these classes of people and make the bill more inclusive to cater to the modern day needs.

Remedy through Surrogate Contracts rather than criminalization

The Surrogacy Bill 2019, criminalizes commercial surrogacy, exploitation of surrogate mothers and children born out of surrogacy. This exhibits heavy reliance of the government on criminalization for dealing with civil issues. It is in line with the government’s recent idea of tackling civil issues through criminal law, criminalization of triple talaq being one such example.

Rather than criminalizing exploitation of surrogate mothers and children, the Bill should have put in place proper framework for Surrogacy contracts. Surrogacy contracts would serve various purposes. Firstly, surrogacy contracts would provide civil remedy for matters of civil nature. Secondly, surrogacy contracts would clearly lay out the legal relationship between surrogate mothers and intended parents. The basic principle of surrogacy stands on the edifice of contract law. Consent of the surrogate mother to bear child for the intending parents is the basis of surrogacy. Consent of surrogate mother is provided under Sec. 6 of the Bill. But the bill fails to provide an elaborate framework for framing and enforcing surrogate contracts. Thirdly, surrogacy contracts would also provide the terms on which the surrogate mother and the intended parents can agree before the surrogacy procedure starts. As surrogacy includes monetary payments of medical expenses and insurance from the parents end and delivery of the child from the surrogate mother’s end, the surrogacy arrangement to a large extent resembles contractual obligation. Hence, a remedy under the contract law would ensure better enforceability than under the criminal law.

Better rights for the surrogate child and mother

The surrogate child would be deemed as the biological child of the intending parents and shall have all the rights and privileges as that of the natural child of the intending parents. The bill provides that an order concerning parentage and custody of the child to be born needs to be passed by the Magistrate before the surrogacy procedure starts. But the Bill has not provided for any situation where the surrogate mother would refuse to handover the baby. As there is a high possibility of the surrogate mother developing emotional connection with the child over the course of the pregnancy period, the handing over of the baby cannot only be dependent on the Magistrate order of parentage that was passed before the surrogate mother has even conceived. A proper mechanism to handle such issues should be provided by the statute.

The Bill provides that the intending parents shall only pay the medical expenses and an insurance cover of sixteen months for the mother. The Standing Committee had recommended a compensation system which included post-delivery care, maternity clothing, dietary supplements and medication, lost wages for the duration of pregnancy and most importantly costs of psychological counseling of the surrogate mother and the child. These recommendations of the Standing Committee should have been adopted. Providing only for the medical expenses and insurance leaves the surrogate mother in a disadvantaged position.

Conclusion

The Bill, as it stands is a timely attempt to regulate a field which has remained unregulated for a long time. However, this bill deals with a very sensitive issue which cannot be dealt so mechanically. Hence the bill has to be more inclusive, modernist and humane in its approach and should guarantee easy procedure and enforceability of rights and liabilities. Also, as the surrogate child becomes an important but a silent stakeholder in this arrangement, the rights of the child must also be provided for. The post pregnancy health of the surrogate mother and the best interests of the child born through surrogacy must be of paramount interest and should be discussed at length.

Mayur Kulkarni is a second year law student at the Gujarat National Law University, Gandhinagar.

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