SURROGACY ISSUES IN INDIA

SURROGACY IN INDIA

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The last two decades have witnessed a dramatic surge in cases of commercial surrogacy in India, whereby women – predominantly from impoverished households or marginalised communities – have resorted to renting their wombs in exchange for monetary compensation. India has fast emerged as the global hub for commercial surrogacy. However, the legislative lacuna in this regard has fuelled unethical practices detrimental to the health and well-being of surrogates. As the Government of the day seeks to enact a law regulating surrogacy, strictly defining eligibility criteria for intended parents and surrogates, it is imperative to analyse if, despite its best intentions, the State is overstepping its authority and interfering in the private lives of individuals. This note discusses the Surrogacy (Regulation) Bill, 2019 for the limited purpose of whether it transgresses upon the citizen’s constitutionally guaranteed rights to privacy and reproductive autonomy, and arbitrarily discriminates against unmarried or same-sex couples, gender non-conformists, and singles by disallowing them the option of embracing parenthood through surrogacy. The note further examines the alignment of select clauses with India’s commitments under relevant international treaties.

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SURROGACY IN INDIA – A REGULATORY BACKDROP

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Surrogacy is unregulated in India. The absence of legislation to govern this space has led to the mushrooming of surrogacy clinics and rampant exploitation of women who choose to become surrogates, often due to abject poverty[1].Unconscionable practices are frequently employed by surrogacy clinics, and owing to their illiteracy and indigence, surrogates are usually excluded from the decision-making process, which remains restricted between the intended parent(s) and medical professionals[2].?In the past, disputes regarding conflict of laws have arisen in cases where the intended parent(s) were not Indian citizens and withdrew from the arrangement at an advanced stage, as India no longer grants birth right (jus soli) citizenship[3].?Labyrinthine legal contestations have been witnessed as Indian law mandates that a child born through surrogacy must be legally adopted by the intended parent(s) after birth, but forbids a single adult male from adopting a female child[4].?Further, considering the taboo around assisted reproduction in India, surrogates are typically constrained to carry the foetus in secrecy, in deplorable physical conditions, and for sums of money approximately a third of what the practice would cost in developed countries[5].

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In 2005, the government approved the 2002 draft of the National Guidelines for the Accreditation, Supervision and Regulation of ART Clinics in India, in 2002[6]. Before commercial surrogacy was banned in 2015,?India?was a popular destination for surrogacy. The economic scale of surrogacy in India is unknown, but study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India[7].

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In 2013, surrogacy by foreign homosexual couples and single parents was banned[8].In 2015, the government banned commercial surrogacy in India and permitted entry of embryos only for research purposes[9].?Shortly thereafter in 2016, a Surrogacy (Regulation) Bill[10]?was introduced and passed by?Lok Sabha, the lower house of the Indian parliament, proposing to permit only heterosexual Indian couples married for at least five years with infertility problems to access altruistic or unpaid surrogacy and thereby further banning commercial surrogacy[11].The 2016 bill lapsed owing to the adjournment?sine die?of the parliament session[12]. The bill was reintroduced and passed by the Lok Sabha in 2019[13]. The bill would require to be passed by the?Rajya Sabha, upper house of the Indian parliament and presidential assent before it becomes an act and thereby a law[14].

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JUDICIA L PROUNCEMENTS

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Baby Manji Yamada v. Union of India?(2008)

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The Supreme Court of India (hereinafter, “Supreme Court” or “Court”) first recognised the practice of commercial and altruistic surrogacy in?Manji Yamada?v.?Union of India[15].?Pertinently, the Court acknowledged that intended parents may include homosexuals, single males, or women who are fertile yet unwilling to undergo pregnancy, and not simply infertile spouses[16]. In 2008, a baby (Manji Yamada) born through surrogacy was unable to leave India for three months after her birth because she held neither Indian nor Japanese nationality. The case came before the?Supreme Court of India[17].The issue was resolved after the Japanese government issued a one-year visa to her on humanitarian grounds. The Japanese government issued the visa after the Indian government granted the baby a travel certificate in September 2008 in line with a Supreme Court direction[18].

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Jan Balaz v. Anand Municipality and ors.?(2009)

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In 2009 in?Jan Balaz v. Anand Municipality and ors[19]., the?Gujarat High Court?conferred?Indian citizenship?on two twin babies fathered through compensated surrogacy by a German national in?Anand district[20]. The court observed: "We are primarily concerned with the rights of two newborn, innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the?ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance." The court considered the surrogacy laws of countries like Ukraine, Japan, and the United States.

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Because India does not offer?dual citizenship[21], the children will have to convert to?Overseas Citizenship of India?if they also hold non-Indian citizenship.?Balaz, the petitioner, submitted before the Supreme Court that he shall be submitting his passports before the Indian Consulate in Berlin. He also agreed that a NGO in Germany shall respond back to India on the status of the children and their welfare. The Union of India responded that India shall make all attempts to have the children sent to Germany. German authorities have also agreed to reconsider the case if approached by the Indian[22].

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In May 2010, the Balaz twins were provided the exit and entry documents that allowed them to leave India for Germany. The parents agreed to adopt them in Germany according to German rules[23].

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INDIAN COUNCIL FOR MEDICAL RESEARCH GUIDELINES

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The?Indian Council for Medical Research?has given guidelines in the year 2002, approved by the government in 2005[24], regulating Assisted Reproductive Technology procedures[25]. However, these guidelines were directory in nature and therefore, legally unenforceable.

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LAW COMMISSION REPORT

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The Law Commission of India submitted the 228[26] report in August 2009 on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:

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·????????Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

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·????????A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

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·????????A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

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·????????One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

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·????????Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

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·????????The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

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·????????Right to privacy of donor as well as surrogate mother should be protected.

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·????????Sex-selective surrogacy should be prohibited.

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·????????Cases of abortion should be governed by the Medical Termination of Pregnancy Act 1971 only.

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The Law Commission, however, noted that “prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational[27].

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PROPOSED LEGISLATIONS

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ASSISTED REPRODUCTIVE TECHNOLOGY BILL, 2013

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The Assisted Reproductive Technology Bill, 2013 has been pending for quite a while and it has not been presented in the Indian Parliament. It will not allow commercial surrogacy that involves exchange of money for anything other than paying for medical expenses for the mother and the child[28].

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The bill would prohibit these from surrogacy: couples already having one child, foreigners or Overseas Citizens of India (OCI), holders as well as live-in-Partners, single people, homosexuals and widows. There has been significant criticism of the bill[29].

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SURROGACY (REGULATION) BILL, 2016 AND 2019

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In 2016, a Surrogacy (Regulation) Bill[30] was introduced and passed by?Lok Sabha, the lower house of the Indian parliament, proposing to permit only Indian heterosexual couples married for at least five years with infertility problems to access altruistic or unpaid surrogacy and thereby banning commercial surrogacy[31]. The 2016 bill lapsed owing to the adjournment?sine die?of the parliament session.

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On July 15, 2019, the Minister for Health and Family Welfare, Government of India, Dr Harsh Vardhan, introduced the Surrogacy (Regulation) Bill, 2019[32]?(hereinafter, the “Bill”) in the Lower House of the bicameral Indian Parliament (Lok Sabha)[33]. The Bill was passed by the Lok Sabha on August 5, 2019, following which it was transmitted to the Upper House (Rajya Sabha)[34].?Amidst concerns that the Bill was backwards looking and disregarded recommendations[35]?made by the Parliamentary Standing Committee[36]on the erstwhile Surrogacy (Regulation) Bill, 2016[37]?(which had eventually lapsed[38]), the Bill was referred to a Select Committee of the Rajya Sabha for review[39].?On February 5, 2020, the Select Committee submitted its Report, recommending the retention of multifarious contentious clauses, while suggesting amendments to certain others[40].?Although the Union Cabinet has announced its decision to accept these recommendations[41], no motion has been moved by the Minister-in-Charge thereon[42]. Therefore, the Bill, as of January 15, 2021, is pending before the Rajya Sabha in its original form[43].

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EVALUATING KEY CLAUSES OF THE BILL

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Clause 4[44] of the Bill prohibits all forms of commercial surrogacy – thus permitting only altruistic surrogacy[45].Only married women between 25 and 35 years of age who have at least one biological child can be surrogates[46].?The Bill also restricts the number of times a woman may act as a surrogate to only once in her lifetime[47]. Further, intended parents must be “proven infertile”, and obtain an “eligibility certificate” –?condiciones?sine quibus non?for which are that both partners be Indian citizens, married for a minimum of five years and having no surviving child – whether biological or adopted or otherwise[48]. An age bracket has also been specified for the intended parents, whereby the male must be between 26 and 55 years of age and the female, between 23 and 50 years[49].Additionally, the Bill mandates that only a “close relative” of the intended parents can be the surrogate mother of their child[50].However, the term “close relative” has not been defined.

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Prima facie, the strict qualifications for surrogates and intended parents specified in the Bill are a case of excessive State intervention in the private lives of individuals. Article 21[51] of the Constitution of India[52]?(hereinafter, “Constitution”) universally guarantees the right to life and personal liberty. Thus, article 21 secures two rights:

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(i)????Right to life, and

(ii)??Right to personal liberty.

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The Government of India Act, 1935 provided for the establishment of Article 21 of the Indian Constitution. It declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 21 comes under the Part III of the Indian constitution and is one of the fundamental rights guaranteed to all citizens of India

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In K.S. Puttaswamy?v.?Union of India[53] and Kharak Singh vs The State Of U. P. & Others[54], the Supreme Court has upheld an individual’s right to privacy as intrinsic to Article 21, recognising further that privacy is relatable to the constitutional right to make reproductive choices.?Moreover, in?Suchita Srivastava?v.?Chandigarh Admn[55]., the Supreme Court had ruled that “a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India.” Judicial precedent is, therefore, abundantly clear that the Constitution protects and safeguards reproductive choices as part of the individual’s inalienable right of personal liberty. In this context, the austere eligibility criteria set out in the Bill appear to encroach upon the private lives of both surrogates and intended parents and strip them of reproductive autonomy.

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Additionally, the Bill restricts intended parents to only married couples[56].?Since personal laws in India do not recognise same-sex marriages, the Bill makes it impossible for same-sex couples to embrace parenthood through surrogacy owing to their inability to fulfil the criterion of being married. It follows that transgender and gender non-conforming individuals are also excluded from the confines of intended parents that recognises only natural-born male and female spouses, in stark transgression of the position settled by recent judgments of the Supreme Court. In the 2018 landmark judgment of?Navtej Singh Johar?v.?Union of India[57], wherein consensual same-sex relationships were decriminalised, the Court had observed that the time had arrived for the constitutional guarantee of equality and inclusion to end the decades of discrimination practised on a “majoritarian impulse of ascribed gender roles.” In?Puttaswamy[58], the Supreme Court had elucidated that “sexual orientation is an essential attribute of privacy, and any discrimination against an individual based on sexual orientation is deeply offensive to the dignity and self-worth of the individual.”[59]?The Court had further propounded that protection of an individual’s rights to privacy and sexual orientation lay at the heart of the fundamental rights guaranteed by Articles 14[60], 15[61] and 21 of the Constitution[62].?Similarly, in?National Legal Services Authority?v.?Union of India[63], the Court had recognised members of the marginalised transgender community as the “third gender” and observed that discrimination on account of gender identity and sexual orientation undermines equality before the law and equal protection of the laws, thereby violating Article 14 of the Constitution.?Consequently, the absolute debarment of same-sex partners and persons with non-binary gender identities from the purview of the Bill is, arguably, in contravention of their fundamental rights and the law laid down by India’s Supreme Court in notable judicial pronouncements.

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Finally, the Bill also forbids singles and heterosexual gender couples who may be in a “live-in relationship” i.e. cohabiting but not legally married, from opting for surrogacy. It is pertinent to note that Parliament has previously accorded statutory sanctity to such relationships by classifying them as “relationships in the nature of marriage[64]." An individual’s choice to marry or not has been held by the Supreme Court to be beyond the legitimate concerns of the State, thus precluding singles and cohabiting couples from opting for parenthood through surrogacy simply because they are not married is seemingly an encroachment on their privacy and an unwarranted infringement of their right to equality[65].

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EXAMINING THE BILL AGAINST INDIA’S OBLIGATIONS UNDER INTERNATIONAL LAW

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Historically, the Supreme Court has aligned its judgments with India’s obligations under international law, particularly when there is no binding municipal law governing the relevant subject-matter. In?NALSA[66], the Court held that “in the absence of a contrary legislation, municipal courts in India would respect the rules of international law[67].”Notably, the Court in that judgment, had referred to the Universal Declaration of Human Rights (hereinafter, “UDHR"[68]?while extending the ambit of constitutional protection to transgender[69],and observed that any international convention which is in harmony with the spirit of the fundamental rights guaranteed by the Constitution must be read as part of those provisions thereby promoting the object of constitutional guarantee[70].

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As regards surrogacy, the UDHR, the International Covenant on Civil and Political Rights[71]?(hereinafter, “ICCPR”) and the Convention on the Elimination of Discrimination against Women[72] (hereinafter, “CEDAW”) are pertinent international treaties ratified by the Indian Parliament. Article 1 of the UDHR guarantees equal rights to all human beings, while Article 7 mandates State parties to ensure equal protection of the law to all human beings without any discrimination[73]. Similarly, the ICCPR commands State parties to refrain from discriminating against any persons on any grounds[74].?Further, the CEDAW expects signatory nations to ensure equality between men and women in deciding freely on the number and spacing of their children[75].The Bill, in its present form, is in evident dereliction of the foregoing commitments made by India to the international community for the following reasons –

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(a)?????????it arbitrarily excludes certain classes of citizens from its gamut:

(b)?????????it necessitates that intended parents have no surviving offspring; and

(c)??????????it specifies unequivocally that women can act as surrogates only once in their lifetime.

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CONCLUDING REMARKS

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The Constitution guarantees equal protection of the law to all and permits class legislation only so long as it is founded on “real and substantial distinction” that has a rational nexus with the object sought to be achieved by the legislation[76].In the absence of such distinction, the discrimination may be deemed “arbitrary” and in violation of Article 14[77].?The exclusion of non-conforming gender identities, same-sex or cohabiting couples, and singles from the scope of the Bill appears to have no logical nexus with the object of the proposed legislation i.e. regulation of the practice of surrogacy, the prevention of potential exploitation of surrogates, and protection of the rights of the child born through surrogacy[78].?Moreover, such prejudice against certain sections of society is a blatant infringement of India’s obligations under various international covenants.

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While it is critical to effectively regulate the burgeoning practice of surrogacy through appropriate legislation, the application of obsolete standards to exclude gender non-conforming communities, singles and unmarried heterosexual couples is unreasoned, apparently anachronistic, and blinkered. In the absence of enforceable municipal laws in India regulating surrogacy presently, obligations under applicable international treaties ought to be conformed to, in keeping with the Supreme Court’s judgment in?NALSA[79].?The Bill prima facie appears to starkly disregard the all-embracing nature of the constitutionally guaranteed fundamental rights and the position taken by the Supreme Court in its recent rulings. If enacted in its present form, the Surrogacy (Regulation) Bill, 2019 is unlikely to withstand judicial scrutiny.

[1] Statement of Objects and Reasons to?the Surrogacy (Regulation) Bill, 2019

[2] Centre for Social Research accessible on the website of the Ministry of Women and Child Development at Final Report – Surrogate Motherhood – Ethical or Commercial? <https://wcd.nic.in/sites/default/files/final%20report.pdf> accessed 24-9-2020

[3] Manji Yamada v. Union of India, (2008) 13 SCC 518.

[4] Manji Yamada v. Union of India, (2008) 13 SCC 518; Central Adoption Resource Authority, Eligibility Criteria for Prospective Adoptive Parents (Ministry of Women and Child Development, Government of India) <https://cara.nic.in/Parents/eg_ri.html> accessed 24-9-2020.

[5] Priya Shetty, India’s Unregulated Surrogacy Industry (2012), the Lancet World Reports Volume 380 <www.thelancet.com/action/showPdf?pii=S0140-6736%2812%2961933-3> accessed 24-9-2020

[6] Timms, Olinda (5 March 2018). Ghoshal, Rakhi (ed.). "Ending commercial surrogacy in India: significance of the Surrogacy (Regulation) Bill, 2016".?Indian Journal of Medical Ethics.?3?(2): 99–102.?doi:10.20529/IJME.2018.019.?PMID?29550749

[7] Bhalla, Nita; Thapliyal, Mansi (30 September 2013).?"India seeks to regulate its booming surrogacy industry".?Medscape.?Reuters Health Information.?Archived?from the original on 16 February 2021. Retrieved?6 October?201

[8] "India bans gay foreign couples from surrogacy".?Daily Telegraph. 18 January 2013.?ISSN?0307-1235.?Archived?from the original on 27 March 2019. Retrieved?27 March?2019

[9] Timms, Olinda (5 March 2018). Ghoshal, Rakhi (ed.). "Ending commercial surrogacy in India: significance of the Surrogacy (Regulation) Bill, 2016".?Indian Journal of Medical Ethics.?3?(2): 99–102.?doi:10.20529/IJME.2018.019.?PMID?29550749

[10] "The Surrogacy Regulation Bill (No. 257), 2016".?PRS Legislative Research. 20 September 2019.?Archived?from the original on 20 April 2019. Retrieved?20 September?2019

[11] "Lok Sabha passes Surrogacy Bill".?The Hindu Business Online. 19 December 2018.?Archived?from the original on 16 February 2021. Retrieved?20 September?2019.

[12] Srivastava, Ananya (14 February 2019).?"Explained: Citizenship (Amendment) Bill, triple talaq bill among 46 draft laws set to lapse as Parliament adjourns sine die".?Firstpost.?Archived?from the original on 31 May 2019. Retrieved?20 September?2019.

[13] "The Surrogacy (Regulation) Bill (No. 156), 2019".?PRS Legislative Research. Retrieved?20 September?2019

[14] Bhandare, Namita (20 September 2019).?"The abolition of choice".?LiveMint. Retrieved?20 September?2019.

[15] (2008) 13 SCC 518

[16] Manji Yamada v. Union of India, (2008) 13 SCC 518, paras 8-15

[17] "Baby Manji Yamada v. Union of India and another".?Supreme Court Cases.?13: 518. 29 September 2008. Retrieved?22 September?2019

[18] Yamada, Manji (3 November 2008).?"India-born surrogate baby arrives to unite with Japanese dad".?Zee News.?Archived?from the original on 23 May 2014. Retrieved?6 October?2013

[19] "Jan Balaz v. Anand Municipality and others".?SCC OnLine Guj: 10446. 11 November 2009. Retrieved?22 September?2019.

[20] Express News Service?(12 November 2009).?"HC confers Indian citizenship on twins fathered through surrogacy".?The Indian Express. Ahmedabad.?Archived?from the original on 5 January 2010. Retrieved?18 November?2009

[21] Nagarajan, Rema (29 September 2006).?"OCI just a recognition of Indian roots: Vayalar".?The Times of India.?Archived?from the original on 27 March 2016. Retrieved?24 May?2017

[22] "Kerla State allows maternity leave for parents through surrogacy (blog)"?

blog.indiansurrogacylaw.com. Indian Surrogacy Law Centre. 30 January 2016.?Archived?from the original on 6 August 2009. Retrieved?20 September?2019.

[23] Ergas, Yasmine (2013).?"Babies without borders: human rights, human dignity, and the regulation of international commercial surrogacy".?Emory International Law Review.?27?(1): 117–188.?Archived?from the original on 14 April 2017. Retrieved?24 May?2017.?Pdf.?Archived?17 May 2018 at the?Wayback Machine

[24] National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005

[25] Timms, Olinda (5 March 2018). Ghoshal, Rakhi (ed.). "Ending commercial surrogacy in India: significance of the Surrogacy (Regulation) Bill, 2016".?Indian Journal of Medical Ethics.?3?(2): 99–102.?doi:10.20529/IJME.2018.019.?PMID?29550749

[26] Report 228 of the Law Commission of India, August 2009, Law Commission of India, Need for Legislation???to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a?Surrogacy (Law Commission Report 228, 2009)

[27] Report 228 of the Law Commission of India, August 2009, Law Commission of India, Need for Legislation?to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy (Law Commission Report 228, 2009) para 4.1

[28] "Cabinet Approves Amendments to Surrogacy Bill".?India West. 21 March 2018.?Archived?from the original on 14 September 2018. Retrieved?14 September?2018

[29] "Surrogacy Bill useless without ART Bill: Committee to Rajya Sabha, Prabha Raghavan, ET Bureau, Aug 11, 2017".?Archived?from the original on 14 September 2018. Retrieved?14 September?2018

[30] "The Surrogacy Regulation Bill (No. 257), 2016".?PRS Legislative Research. 20 September 2019.?Archived?from the original on 20 April 2019. Retrieved?20 September?2019

[31] "The Surrogacy (Regulation) Bill (No. 156), 2019".?PRS Legislative Research. Retrieved?20 September?2019

[32] The Surrogacy (Regulation) Bill, 2019 Lok Sabha (Monsoon Session 2019)

[33] Press Trust of India, Government Introduces Bill to Ban Commercial Surrogacy,?India Today?(New Delhi, 15-7-2019).

[34] HT Correspondent, Lok Sabha Passes Bill that Bans Commercial Surrogacy,?Hindustan Times?(New Delhi, 5-8-2019)

[35] Manoj CG, Govt. defers Surrogacy Bill in Rajya Sabha after Members Oppose Provisions,?The Indian???Express?(New Delhi, 21-11-2019).

[36] Parliament of India – Rajya Sabha –Department-related Parliamentary Standing Committee on Health????and Family Welfare, One Hundred-Second Report on the Surrogacy (Regulation) Bill, 2016 (2017).

[37] The Surrogacy (Regulation) Bill, 2016 Lok Sabha (Winter Session 2016)

[38] (P. 7, Bill No. 257) Parliamentary Bills Information System (Lok Sabha) <https://loksabhaph.nic.in/Legislation/billslapsed.aspx> accessed 24-9-2020

[39] Parliament of India – Rajya Sabha, Select Committee on the Surrogacy (Regulation) Bill, 2019 (2019)

<https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/Press_ReleaseFile/70/137/255P_2020_1?????_12.pdf> accessed 24-9-2020

[40] Parliament of India – Rajya Sabha, Report of the Select Committee on the Surrogacy (Regulation) Bill, 2019 (2020)

[41] HT Correspondent, Rajya Sabha Panel Recommendations get Cabinet Nod,?Hindustan Times?(New Delhi, 27-2-2020)

[42] Rajya Sabha Secretariat, Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), 8th edn. (2013) R. 93

[43] PRS Legislative Research, Plan versus Performance Monsoon Session: 14-9-2020 to 23-9-2020 (PRS India, 23-9-2020)

<https://www.prsindia.org/sites/default/files/Plan%20vs%20Performance_Monsoon%202020_17LS.pdf> accessed 24-9-2020

[44] On and from the date of commencement of this Act,—

(i)????????????no place including a surrogacy clinic shall be used or cause to be used by any person for conducting surrogacy or surrogacy procedures, except for the purposes specified in clause (ii) and after satisfying all the conditions specified in clauses (iii);

(ii)??????????no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed of, except for the following purposes, namely:--

(a)??????????when either or both members of the couple is suffering from proven infertility;

(b)?????????when it is only for altruistic surrogacy purposes;

(c)??????????when it is not for commercial purposes or for commercialisation of surrogacy or surrogacy procedures; 34 of 1971. Regulation of surrogacy and surrogacy procedures.

(d)?????????when it is not for producing children for sale, prostitution or any other form of exploitation; and (e) any other condition or disease as may be specified by regulations made by the Board;

(iii)?????????no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or initiated, unless the Director or in-charge of the surrogacy clinic and the person qualified to do so are satisfied, for reasons to be recorded in writing, that the following conditions have been fulfilled, namely:—

(a)??????????the intending couple is in possession of a certificate of essentiality issued by the appropriate authority, after satisfying itself, for the reasons to be recorded in writing, about the fulfilment of the following conditions, namely:—

(I)???????????a certificate of proven infertility in favour of either or both members of the intending couple from a District Medical Board; Explanation.—For the purposes of this sub-clause, the expression “District Medical Board” means a medical board under the Chairpersonship of Chief Medical Officer or Chief Civil Surgeon or Joint Director of Health Services of the district and comprising of at least two other specialists, namely, the chief gynaecologist or obstetrician and chief paediatrician of the district;

(II)??????????an order concerning the parentage and custody of the child to be born through surrogacy, has been passed by a court of the Magistrate of the first class or above, on an application made by the intending couple and the surrogate mother; and

(III)????????an insurance coverage of such amount as may be prescribed in favour of the surrogate mother for a period of sixteen months covering postpartum delivery complications from an insurance company or an agent recognised by the Insurance Regulatory and Development Authority established under the Insurance Regulatory and Development Authority Act, 1999;

(b)?????????the surrogate mother is in possession of an eligibility certificate issued by the appropriate authority on fulfilment of the following conditions, namely:—

(I)???????????no woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise;

(II)?????????no person, other than a close relative of the intending couple, shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act;

(III)????????no woman shall act as a surrogate mother by providing her own gametes;

(IV)???????no woman shall act as a surrogate mother more than once in her lifetime: Provided that the number of attempts for surrogacy procedures on the surrogate mother shall be such as may be prescribed; and

(V)?????????a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner; 41 of 1999.

(c)??????????an eligibility certificate for intending couple is issued separately by the appropriate authority on fulfilment of the following conditions, namely:—

(I)???????????the age of the intending couple is between 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification;

(II)??????????the intending couple are married for at least five years and are Indian citizens;

(III)???????the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier: Provided that nothing contained in this item shall affect the intending couple who have a child and who is mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure and approved by the appropriate authority with due medical certificate from a District Medical Board; and

(IV)???????such other conditions as may be specified by the regulation

[45] The Surrogacy (Regulation) Bill 2019, cl. 4(ii)(b) and cl. 4(ii)(c)

[46] The Surrogacy (Regulation) Bill 2019, cl. 4(iii)(b)(I)

[47] The Surrogacy (Regulation) Bill 2019, cl. 4(iii)(b)(IV)

[48] The Surrogacy (Regulation) Bill 2019, cl. 4(iii)(a)(I); the Surrogacy (Regulation) Bill, 2019, cl. 4(iii)(c)(II); the Surrogacy (Regulation) Bill, 2019, cl. 4(iii)(c)(III)

[49] The Surrogacy (Regulation) Bill 2019, cl. 4(iii)(c)(I)

[50] The Surrogacy (Regulation) Bill 2019, cl. 4(iii)(b)(I)

[51] Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law

[52] The Constitution of India,?Art. 21?(right to life and personal liberty)

[53] (2017) 10 SCC 1, 83

[54] 1963 AIR 1295, 1964 SCR (1) 332

[55] (2009) 9 SCC 1, para 22.

[56] The Surrogacy (Regulation) Bill, 2019, cl. 4(iii)(c)(II).

[57] (2018) 10 SCC 1, para 461.

[58] (2017) 10 SCC 1

[59] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, para 144

[60] Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

[61] Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1)??????????The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2)??????????No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a)??????????access to shops, public restaurants, hotels and palaces of public entertainment; or

(b)?????????the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3)??????????Nothing in this article shall prevent the State from making any special provision for women and children

(4)??????????Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

[62] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, para 144; the Constitution of India,?Art. 14?(equality before the law and equal protection of the laws),?Art. 15?(prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and Art. 21 (right to life and personal liberty)

[63] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, para 62

[64] The?Protection of Women from Domestic Violence Act, 2005, S. 2(f) provides

“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family

[65] Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, para 84

[66] (2014) 5 SCC 438

[67] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, para 58

[68] Universal Declaration of Human Rights?(adopted 10-12-1948) UNGA Res 217 A(III) (UDHR)

[69] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, para 96

[70] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, para 59

[71] International Covenant on Civil and Political Rights?(adopted 16-12-1966, entered into force 23-3-1976) 999 UNTS 171 (ICCPR)

[72] Convention on the Elimination of Discrimination against Women?(adopted 18-12-1979 entered into force 3-9-1981) 1249 UNTS 13 (CEDAW)

[73] Universal Declaration of Human Rights (adopted 10-12-1948) UNGA Res 217 A(III) (UDHR) Arts. 1 and 7

[74] International Covenant on Civil and Political Rights (adopted 16-12-1966, entered into force 23-3-1976) 999 UNTS 171 (ICCPR), Art. 26

[75] Convention on the Elimination of Discrimination Against Women (adopted 18-12-1979 entered into force 3-9-1981) 1249 UNTS 13 (CEDAW), Art. 16(1)(e).

[76] Union of India v. N.S. Rathnam, (2015) 10 SCC 681, para 18

[77] The Constitution of India, Art. 14 (equality before the law and equal protection of the laws).

[78] Statement of Objects and Reasons to the Surrogacy (Regulation) Bill, 2019

[79] National Legal Services Authority?v.?Union of India, (2014) 5 SCC 438, paras 58-59