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THE SURROGACY (REGULATION) ACT, 2021: FOETAL OR FATAL?

The Inception of the Act

The Surrogacy (Regulation) Act, 2021 received the presidential assent on the 25th of December, 2021 and subsequently immortalized the practice of surrogacy in India. The Act has been the culmination of two prior bills, namely that of 2016 and 2019. The object of this Act, as is stated, is to establish national and state Assisted Reproductive Technology [ART] and Surrogacy Boards in consonance with other regulatory authorities concerning surrogacy practices and/or procedures.

Provisions for Prohibition? : Analysing the Act

In view of this regulatory intent, the question ‘what is it that the law can be employed in doing, besides prohibiting and commanding?’[1], manifests itself precariously. The Act explicitly states two morphs that surrogacy may take, namely altruistic and commercial, and goes on to distinguish them solely on the purposes for which pecuniary measures shall become involved in the said practice. Succinctly, predetermined monetary incentives in excess of medical, health or insurance expenses towards the surrogate shall be characteristic of commercial surrogacy, which is made penal by the said Act of 2021 with the apparent legislative intent to eradicate mechanization of women and commodification of the child[2] garbed under a contractual relationship.

Eligibility, essentiality and the Authority vis-à-vis the human rights

As regards the criterion for eligibility, the Act permits an intending couple, with a medical indication necessitating gestational surrogacy, u/s 2(r), or an intending woman who is to be a widow or divorcee between the ages of 35 to 45 as u/s 2(s), while on the other hand, the surrogate woman shall be between the ages of 25 and 35 years, married, and with a child of her own as per sub-clause (b) of clause (iii) of section 4, to avail the option of surrogacy provided they are armoured with the requisite certificates at the behest of the boards so constituted u/s 17 of said Act. The absence of the words ‘close relative’ as a qualification for the woman acting a surrogate so specified in the Surrogacy (Regulation) Bill of 2019 may then be construed as a move towards broadening the scope of the prospective surrogates. However, that being said, a woman willing to be a surrogate shall be granted with said opportunity no more than once in her lifetime thereby diluting the potency of reproductive rights[3] so vested in every individual under the umbrella of Article 21[4] of the Indian Constitution as well as Article 11(f)[5] of the Convention on the Elimination of All Forms of Discrimination against Women. Furthermore, celebrated studies and surveys underpin that the substantial reason women might be motivated[6] to willingly act as surrogates are due to the remuneration it promised. “It is money that gets you to do everything… No woman bears a child and gives it away out of interest” said one anonymous surrogate.

Moreover, another commercialized facet the legislation seeks to put to rest is that of the sale and import of human embryos or gametes for the purpose of surrogacy. The complete curtailment of commercial surrogacy, albeit unintentionally, also limits the horizons for the intending couple or woman seeking surrogates forcing them to be diverted to foreign destinations lacking said regulations. In the said scenario, how far does the prohibition of such commercialization protect those whose interest it seeks to shield? The issue of certificates of essentiality, with the relaxation of proven infertility, and that of eligibility, granting respite to the intending couple through the withdrawal of the requirement of five years of marriage prior to undertaking the option of surrogacy, and letter of recommendation (in regards of the intending couple/woman), as well as the certificate of medical and psychological fitness (in regards of the surrogate), vests in the hands of the so-termed appropriate authority, established u/s 35 of the Act extensive and critical powers which call for an exercise with utmost caution.

Vires of the Act: Progressive or Regressive?

A dimension so retrogradely omitted in the characterization of the eligibility of intending couple u/s 4, clause (c), is that of the third gender and live-in couples, all of whom have so long struggled to find a deserved place in the Indian fabric[7]. A miscarriage of justice at the expense of simultaneous victimization of multitudinous parties shall be just the nail in the coffin unbecoming of a welfare state even in its journey towards the advancement of the intersection of human life and technology.

On the other hand, in a rather progressive move, the legislature has made crystalline the legal status to be afforded to a child born out of the surrogacy procedure u/s 8 of the titular Act, in its being that of a natural child of the intending couple/woman while also explicitly condemning the production of children for illegal motives of sale, prostitution and the like, and the abandonment of such child for any reason whatsoever[8]. The recognition of the filiation and legal parentage shows promise of amnesty towards the entitlement and rights of the surrogate child inasmuch as it is not made the object of a contract to be transferred to sponsors as a consequence of the right of abusus (ownership) or that of property[9]. As regards the surrogate woman, the Act entrusts in her the right to informed consent following the knowledge of the side/after-effects of the surrogacy procedure, along with the option to withdraw said consent prior to the implantation of the embryo.

Questions Unanswered and The Path Ahead

Yet, to what an extent do these provisions warrant the effacing of the erstwhile reflection of the surrogate as a mere means to an end, lamentingly degrading of her primordial dignity irrespective of the terms of the surrogacy arrangement? Does a mere increase in the period of insurance coverage of the surrogate woman from 16 to 36 months[10], or the inclusion of health and medical expenses to the hitherto grounds of permitted payment[11] toward the surrogate suffice the reward for undertaking the somatopsychic event par excellence[12] that is pregnancy?

Alike any legislation that is subjected to scrutiny through the lens of human rights, the Surrogacy (Regulation) Act, 2021, appears infantile as far as the regulation of the parties involved in the act of surrogacy is concerned and fatal inasmuch as the safety and dignity of the surrogate is examined, however, it also has the latent potency to be the first of many steps in the right direction if judiciously implemented. The purpose of this law must not be simply restricted to prohibition and regulation but evolve to be a benchmark for national and international laws to align to, only and only then shall the law be looked at as serving a larger, much greater purpose than that impugned by J. Bentham[13].

Author(s) Name: Akshita Kothari (Himachal Pradesh National Law University)

References:

[1]Jeremy Bentham, AN INTRODUCTION TO THE PRINCIPLES AND MORALS OF LEGISLATION, Chapter XVII Of the Limits if the Penal Branch of Jurisprudence (2000)

[2] Claire de La Hougue, Caroline Roux, ‘SURROGATE MOTHERHOOD AND HUMAN RIGHTS: HUMAN, LEGAL AND ETHICAL ISSUES’ (September 2015)

[3] B.K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 AP 156.

[4] Protection of life and personal liberty, Article 21, Constitution of India, 1949.

[5] The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction, Article 11.f, CEDAW (1981)

[6] Sama-Resource Group for Women and Health, ‘BIRTHING A MARKET A Study on Commercial Surrogacy’ (2012).

[7] A. Anand, D. Singhvi, ‘Potential transformation targeted through the Surrogacy (Regulation) Bill,

2019: An overview’, Revue libre de Droit, 2020, pp. 57-62.

[8] Section 7, The Surrogacy (Regulation) Act, No. 47 of 2021.

[9] supra note 2.

[10] See Comparison between Surrogacy (Regulation) Bill, 2019 (as passed by Lok Sabha) and Surrogacy (Regulation) Bill, 2021 (as passed by Rajya Sabha), PRS India, https://prsindia.org/billtrack/prs-products/prs-comparison-table

[11] Ibid.

[12]Bérengère Beauquier-Maccotta, “LA DYNAMIQUE PSYCHIQUE DE LA GROSSESSE”, in Bernard Golse et Marie-Rose Moro, Le développement psychique précoce, de la conception au langage, Elsevier Masson, 2014, p. 79.

[13] Refer to supra note 1.