Commercial Surrogacy: Examining The Issues Framed By The Supreme Court

Surrogacy emerges as a feasible arrangement in the form of assisted reproductive technology (ART). Surrogacy can be classified into altruistic and commercial. In altruistic surrogacy, the surrogate receives no monetary compensation except the medical expenses and any other expenses incurred by surrogate mother whereas in commercial surrogacy the surrogate is compensated for her services beyond reimbursement for her medical expenses. Over the years, commercial surrogacy has been viewed as the commercialization of embryos and as unethical since it involves the buying and selling of an infant. This issue was raised numerous times in the Indian Parliament and finally on 25^th December, 2021 the Surrogacy (Regulation) Act, 2021 was passed which banned commercial surrogacy in India. Several petitions filed in the Supreme Court challenge the legislation and the Assisted Reproductive Technology (Regulation) Act, 2021 on grounds of being discriminatory in nature and violative of the constitutional rights of privacy and reproductive autonomy through a number of petitions filed in the Supreme Court.

On 5^th May 2024, the Supreme Court bench comprising of Justices BV Nagarathna and AG Masih while considering this batch of petitions called for written submissions on the five major issues.

Constitutionality of the Prohibition of Commercial Surrogacy

Sections 4(ii)(b) of the Act specifies that surrogacy or surrogacy procedures can only be conducted for altruistic surrogacy purposes and Section 4(ii)(c) prohibits commercial surrogacy mandating that surrogacy or surrogacy procedures should not be conducted for commercial purposes or involve the commercialization of surrogacy or surrogacy procedures. The Act prescribes altruistic surrogacy as the only legal form of surrogacy while bringing a complete ban on commercial surrogacy. Women living in a state where poverty prevails are often forced into labour work and therefore becoming a surrogate mother often presents an opportunity to earn a livelihood. Although there have been numerous instances of human rights violations of women involved in commercial surrogacy, it has also provided many women with a dignified life, financial independence and secured their future that would have seemed unattainable in the past.

The Supreme Court recognised the right to reproductive autonomy as a fundamental right in Suchita Srivastava & Anr v. Chandigarh Administration^[1]. A nine-judge bench in Puttaswamy^[2] held that reproductive rights are inherent in the rights of life and liberty under Article 21. The complete ban on commercial surrogacy not only infringes Article 21 but also the right to practise any profession, or to carry on any occupation, trade or business enshrined in Article 19(1)(g) where the bodily autonomy of consenting adults and their right to earn a livelihood are undermined. Instead of an outright ban, it is crucial to find a balanced approach that allows commercial surrogacy under stringent regulations to safeguard human rights.

Right to avail surrogacy restricted to married couples

The Act restricts right to avail surrogacy to legally married couple. The term “couple” is defined in Section 2(1)(h) as legally married Indian man and woman above the age of 21 years and 18 years respectively. Additionally, in order to be eligible for surrogacy, the intending couple must not have any living child biologically, through adoption or surrogacy. The Act outrightly forbids unmarried couples or couples in “live-in relationship” along with homosexual couples. This reinforces the traditional notion of marriage as the societal norm, thereby restricting the right of individuals to access surrogacy if they do not conform to this narrow societal ideal. Indian courts in cases such as S. Khushboo v. Kanniammal,^[3] have accepted live-in relationship between consenting adults does not amount to any statutory violation and hence is not against the law of the land.

In Baby Manji Yamada v. Union of India^[4], Supreme Court recognized that intending parent may be a single man or a homosexual couple and the landmark case of Navtej Singh Johar^[5] declared Section 377 as unconstitutional. Despite this the Surrogacy Act excludes the LGBTQIA+ community from the purview of surrogacy and is therefore discriminatory merely on the ground of an individual's sexual identity. There is no ground of reasonable classification between homosexual couples and heterosexual couples in relation to availing surrogacy. There is no evidence to support that a homosexual couple cannot raise a child with the same amount of love and responsibility as a heterosexual couple. The surrogacy laws should discriminate against homosexual couple based solely on an individual's sexual orientation if it has no detrimental effect on the upbringing and well-being of a child.

Surrogacy Rights of Single Women

Section 2 (1)(s) defines an “intending woman” as an Indian woman who is a widow or divorcee between the age of 35 to 45 years. This manifests a legislative classification of women eligible for surrogacy, predicated on their marital status resulting in violation of Article 14 of the Indian Constitution, which guarantees equality before the law and equal protection of the laws within the territory of India. Denying surrogacy rights to single individuals may perpetuate societal injustices and deprive them of their reproductive rights.

The Supreme Court in Ram Krishna Dalmia v. Justice Tendolkar,^[6] held that while Article 14 bars arbitrary discrimination, it allows for reasonable classification provided that such classification is founded on intelligible differentia and bears a rational nexus with the objective sought to be achieved. The same principle of reasonable classification was reiterated in Budhan v. State of Bihar^[7].

The report submitted by the Select Committee on the Surrogacy (Regulation) Act, 2021 also solicited input from the representative of UNFPA. The UNFPA representative advocated for an expansion of the surrogacy option beyond just married couples. However, the legislation's restrictive definition of “family” reveals its discriminatory nature. The legislative intent, as seen through the parliamentary debates preceding the enactment of the act, suggests that legislators emphasized the necessity of co-parenting for the well-being of a child, where both partners share mutual responsibility, ensuring equitable care and support. This perspective, however, overlooks scenarios where a single woman might be fully capable of providing adequate care for a child. The legislation permits widows and divorcees to avail surrogacy but excludes unmarried women, which is unreasonable. Requiring marriage as a prerequisite for surrogacy reinforces the traditional association of motherhood with marriage.

Thus, in the context of the Surrogacy Regulation Act 2021, while the classification based on marital status and age may prima facie appear discriminatory, its constitutionality hinges on whether it satisfies the twin requirements of intelligible differentia and rational nexus. A thorough examination of these aspects is imperative to ascertain the constitutionality of the legislative provision and to reconcile it with the principles of equality enshrined in Article 14 of the Constitution.

Limitation Based on Existing Children

Couples who can conceive but opt for surrogacy may do so due to various reasons, such as concerns about the risks associated with pregnancy, medical conditions that make pregnancy dangerous or impractical, or personal preferences regarding childbirth and parenting roles. Section 4(iii)(c)(II) of the Act stipulates that couples with a surviving child cannot avail surrogacy, except in cases of the child's mental or physical disability. The intent behind this provision is likely to limit the use of surrogacy to those couples who have no other means of having a child.

India, having ratified the Universal Declaration of Human Rights, 1948, recognizes and upholds Article 16.1, which affirms the right of individuals, regardless of race, nationality, or religion, to marry and establish a family.^[8] This provision violates the reproductive rights of a couple wishing to avail surrogacy. This infringes upon their “personal liberty” under Article 21 of the Constitution. Additionally, the exception within this provision, which allows couples with a child who has a mental or physical disability to avail themselves of surrogacy, might lead to stark discrimination against the disabled child within the family. This could hinder the disabled child's ability to feel included, especially with the arrival of a surrogate child who might be perceived by the parents as more capable. Such dynamics could foster a constant feeling of inferiority in the disabled child, leading to alienation and further insecurities within the child's mind.

Rights of Individuals Who Initiated Surrogacy Before the Act

In the case of Mrs. D & Anr. V. Union of India^[9] where an intending couple over the prescribed age limits imposed by the Surrogacy (Regulation) Act, 2021 had initiated the in-vitro fertilization (IVF) process before the Act's enforcement, creating embryos from frozen gametes. The Delhi High Court acknowledged the petitioner's argument and held that “prima facie, the impugned provision cannot be applied retrospectively, thereby disqualifying individuals who had already initiated or undergone the ART process, in accordance with the prevailing laws.”

Section 53 of the Act provides a gestation period of ten months from the date of enforcement of act to safeguard existing surrogacy arrangements. However, there is still uncertainty regarding surrogacy arrangements that extend beyond this gestation period and are not specifically addressed by Section 53. Judicial clarification is necessary to interpret the restrictions imposed by the Act in these situations.

The issues framed by the Supreme Court regarding the Surrogacy (Regulation) Act, 2021 highlight profound constitutional and ethical concerns that necessitate thorough examination and thoughtful deliberation. While the ban on commercial surrogacy attempts to prevent exploitation, it also restricts the reproductive freedom and bodily autonomy of women. As the Supreme Court deliberates on these critical issues, it is imperative to consider reforms that reflect contemporary societal values, embrace diversity in family structures, and safeguard the fundamental rights of all individuals.

Views are personal.

[1] (2009) 9 SCC 1