The scrapping of the archaic Section 377 in 2018 was a turnover for Indian democracy where the apex court set a precedent for respecting the liberty of an individual. The court held that the section was unconstitutional because it infringed the basic right of the LGTBQ+ community and hence consensual intercourse between same-sex couples was decriminalized. However, India remains a country where LGBTQ+ identity is questioned as immoral. Recently, the solicitor general iterated his stance on the issue and said, “Our laws, our legal system, our society, and our values do not recognize the marriage, which is a sacrament, between same-sex couples.” The statement clearly shows the stance of the government authorities in this matter. The essence of this can also be found in the new Surrogacy (Regulation) Bill, 2019. This article tries to unearth possible shortcomings and effects of the new amendment.
Surrogacy is a deeply rooted concept in our society. In history, the first surrogate mother was the case of Sarah, the wife of Abraham. She was barren and hired Hagar, her maiden, to bear a child for her husband and herself. Instances of surrogacy can be found in other mythological texts also. Two examples are those of Lord Krishna and his brother, Balarama and of Dronacharya. It is believed that the Gods transferred Balram from the womb of Devki to that of Rohini much before he could be killed by his cruel uncle, Kansa. Even Dronacharya is said to be born in dron (vessel in India). The concept of surrogacy can also be linked to King Dhritrashtra and his wife, Gandhari. It was through of surrogacy that Duryodhana and his ninety-nine brothers were born.
The first case of surrogacy in Britain was of Baby Cotton. The same dealt with the issue of commercial surrogacy, which was held as enforceable for ‘the best interest of the child’. This phrase was the premise of the judgment in some controversial cases; cases where the custody was provided to a surrogate mother.
In India, first case of commercial surrogacy was of Manji Yamada v. Union of India which dealt with the legality of commercial surrogacy. As commercial surrogacy was the livelihood of many women, the court legalized commercial surrogacy. Further down the line, as the jurisprudence surrounding surrogacy grew, the question of the nationality of a surrogate child was decided in K. Jan Balaz v. Anand Municipality, where the Gujarat High court held that the child of the intended parents would be an Indian since he/she was born to an Indian woman. This case acknowledged the importance of proper laws regarding surrogacy where the intended parents are not citizens of India
The Morality and Legality of Commercial Surrogacy
The Indian government banned commercial surrogacy in 2015 and cited this practice of ‘renting a womb’ as bad and unethical. While the ICMR guidelines and Draft ART 2010 categorically state that the intention of the legislature was not to do away with the practice but to regulate it, there are many polarizing views on this proscription of commercial surrogacy. Among them libertarian and utilitarian views are pre-eminent. While the former acknowledges individual freedom, latter prefers overall happiness and maximizing well-being. People supporting commercial surrogacy argue that nothing is as fatal to the dignity of humans as abject poverty and commercial surrogacy is a livelihood for many, as it provided resources (mainly remuneration) to unprivileged women. This maximizes the overall happiness because they were paid for the labor and commercial surrogacy is a labour contract. Contrary to this view, one may argue that commercial surrogacy promotes the commoditization of children which is inherently immoral and by supporting commercial surrogacy we are implicitly agreeing to human and organ trafficking. Adherents of this view maintain that commercial surrogacy is a void contract as the subject involved comes under the purview of ‘immorality’ in Section 23 of the Indian Contract Act. This was discussed in Johnson v. Calvert where the Supreme court of California observed: “surrogacy does not turn children into commodities despite the fact that they are effectively the subject of a contract.” The anthropological view questions whether it is ethical to break the natural bond of motherhood to simply respect a contract especially if it is evident that a surrogate mother could form a bond with the child? As the diaspora of views on surrogacy confirm, deciding the morality of a commercial contract remains a herculean task as morality changes with society’s needs.
Interpretation of the Bill
The Bill was first introduced in the lower house of parliament in 2016, where it lapsed sine die. The 2016 bill primarily proposed altruistic or unpaid surrogacy only for heterosexual couples. Altruistic surrogacy was also recommended by the Law Commission report 2009. The report recommended making laws on surrogacy while prohibiting commercial surrogacy.
The Bill, with changes, was reintroduced in the Lower House in 2019 and the same was passed. The 2019 bill focuses on many things. The definitions of ‘altruistic’ surrogacy and ‘couple’ question the accessibility of the law for the general public which also includes the LGBTQ community. Section 2(g) defines the word ‘couple’. It does not include, in any interpretation, the possibility of a homosexual couple. A counter-argument can be that law has not legalized homosexual couples yet and there is no need to include them within the meaning of the act. However, bearing a child has been held as a right to life and is included in the wide ambit of Article 21 of the Indian Constitution. Internationally, Article 12 and Article 23 of the International Covenants on Civil and Political Rights acknowledge and guarantee the right to form a family which includes a spouse and children. The selection committee recommended deleting the number of years in section 2(p) and argued that the period was too long for couples to bear a child. Ironically, they left the context of homosexual couples where the wait can be ad infinitum. The option to adopt a child was also not included. Section 2(r) stands in contrast to what the court held in the case of Baby Manji Yamada where the court had acknowledged that “alternatively, the intended parents may be a single male or a male homosexual couple”.
While section 2(r) categorically rejects the notion of a single male or a male homosexual couple, the Bill also falls short of defining the ‘legal’ parents. The same problem was dealt with in the case of RP(Minors) (Wardship: Surrogacy),where twins were born, the genetic mother denied to give the children to the genetic father and the court held that for the ‘best interest’ of the child, the custody should be with the genetic mother. Due to this lack of a definition of legal parents, custody will be merely based upon the criteria of best interest and may render the process arbitrary.
Another grey area that can be found, if section 2(b) and section 4(iii)(b)(II) are read together. While section 2(b) defines the word “altruistic surrogacy” where the payment should be made only in the context of medical expenses and insurance of the surrogate mother, section (4)(iii)(b)(II) imposes restriction and narrows down the course of action available to the intended parents. Moreover, there is no definition of ‘close relative’ in the Bill and the select committee for the Bill recommended removing this phrase making the scope of probable surrogate mother broad. When these two sections are read together, some lacunas can be unearthed which can be exploited by the middle-man for providing surrogate mothers in the black market.
India does indeed need some time to adopt, acknowledge, and respect the concept of same-sex couples. At the same time, it should draft provisions which effectively prevent possible misinterpretations and voids in the law.
In conclusion, the researchers have observed that the state is the custodian of the people. It is the prerogative of the state to identify the backdrop in society and correct those with the help of laws. LGBTQ+ community is one such community that has faced poverty and discrimination due to lack of proper representation, and acknowledgment. While the researchers appreciate the Bill brought by the Parliament, issues highlighted in the preceding parts of the Article must be included so as to make the same more accessible and inclusive. Other laws also must be brought by the parliament to improve the conditions of this community as a whole. An ideal example is that of Israel which authorized commercial surrogacy and also took care of the rights and dignity of everyone. If we aspire to become a superpower, we need to be progressive and include all members of society. Certain changes must be done to improve their livelihood and conditions. Hence, the least that the lawmakers can do is to amend the laws to respect the dignity and rights of same-sex couples. It is a high time we realize the importance and rights of these communities and bring them to mainstream society. The bill could not be passed in the Upper House due to increase in number of COVID19 cases; the session was adjourned sine die. This certainly gives us some time to think over this issue and proceed accordingly.
(This post has been authored by Vidit Parth and Prabhat Singh, second year law students at National Law University, Delhi)
- Re C (A Minor) (Wardship: Surrogacy)  FLR 846 ↑
- Richa Saxena, Judicial Response to Surrogacy Arrangements, 8 RMLNUJ (2016) 148 ↑
- Jayakumar, Y. F. “Socio-Legal Aspects of Surrogacy in India.” Indian Journal of Law and Justice, vol. 1, no. 2, September 2010, p. 86-101. HeinOnline ↑
(1987) 2FLR 412 ↑