Critical Analysis Of Surrogacy (Regulation) Bill 2021 And Assisted Reproductive Technology (Regulation) Bill 2021

Surrogacy (Regulation) Bill 2021

The Surrogacy (Regulation) Bill (SRB) 2021 is the successor to the Surrogacy (Regulation) Bill 2016, which could not be passed by the Parliament of India. The Bill defines surrogacy as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth. It seeks to prohibit commercial surrogacy, which includes trading human embryos and gametes and buying and selling of the services of a surrogate by a monetary reward except for insurance but allows altruistic surrogacy, which involves no monetary incentives or rewards to the surrogate mother other than the medical expenses incurred and insurance coverage.

SRB 2019 envisages that surrogacy-related medical procedures shall take place only at designated surrogacy clinics. It also regulates them through registration and prohibits taking services of unqualified professionals or inducing women to become surrogates through advertisements or other means.

The intending couple would also need a 'certificate of essentiality' and a 'certificate of eligibility issued by the appropriate authority in order to be eligible to opt for the procedure. A certificate of essentiality will be issued only if infertility affects the intending couple and certain other conditions.

Ban on Surrogacy

a)Judicial View

The Supreme Court's decision in Indian Hotels and Restaurants Association and Others v State of Maharashtra^[1] in the context of bar dancers in Maharashtra would be suitable to evaluate on the subject of what kind of labor women may and cannot undertake. The Supreme Court reaffirmed an earlier decision holding that a ban on a woman's right to work cannot be imposed solely on the basis of moral disapproval if there is no objective evidence that the activity harms women. The Court had previously struck down a total ban on women dancing in bars, and in this case, the Maharashtra legislature's attempt to "regulate" it ran afoul of constitutional guarantees of equality (under Article 14), freedom of expression (under Article 19[1][a]), and freedom of occupation (under Article 19[1][b]) (Article 19[1][g]).

Similarly, after the Supreme Court's decision in Justice K S Puttaswamy (Retd) v Union of India^[2], the conceptions of right to privacy and freedom to choose have extended considerably. While the Court said that the right to privacy is a basic right, it also stated that it has three parts, the most important of which is "decisional autonomy." Decisional autonomy refers to the freedom to make personal decisions about having children, marriage, clothing, food, beliefs, and so on. While the decision has significant flaws, any regulation that aims to restrict women's ability to manage their own bodies must pass the three-part standard given forth by the Supreme Court to show why the limitation is permissible under the Constitution. While the 2021 law would easily satisfy the "legality" test, it would still need to demonstrate that its provisions are necessary and appropriate under the criteria of the judgment's test.

Finally, in Navtej Singh Johar v Union of India^[3], the Supreme Court found that, although striking down Section 377 of the Indian Penal Code, which criminalised gay activities, regulations that deny people in same-sex partnerships equal status are discriminatory and violate Article 14. While this has not yet resulted in courts overturning family laws that do not recognise same-sex relationships, courts have cited Navtej Johar to prevent discrimination in employment against LGBTQ people^[4] and to protect same-sex relationships from parental and police interference^[5].

According to the Supreme Court's jurisprudence, the 2021 bill is in violation of Articles 14, 19, and 21 of the Constitution.

If the Supreme Court's decision in the International Human Rights Association (IHRA) case is any indication, the clauses restricting who can legally be a surrogate mother and for what purposes are likely to be in violation of the constitutional guarantee of equal protection of the law and the right to earn a living.

b)Ethical View

The surrogate, who is generally from a low-income family, is used to carry out the wishes of the commissioning parents. However, there are fears that a prohibition on commercial surrogacy alone will drive the business underground, allowing commercial surrogacy to thrive, although illegally.

If there are willing parents and women who want to be surrogates, legal or illegal arrangements will be arranged. If the legislation is well-regulated, there will be less likelihood of the surrogacy industry prospering in underground markets and surrogates being exploited. If surrogacy is outlawed for substantial parts of the population, there is a good chance that people will find ways to meet their demands through illicit means. Surrogacy for the sake of altruism is not without risk. In India, women are rarely the final decision-makers in these situations. When a family feels the need for a child through surrogacy, mild pressure may be used to persuade a woman in the family to take the role of surrogate. In SRB 2019, there is no definition of "close relatives." One could question why altruistic surrogacy can only be carried out by a married woman who is a close relative. These rules impose excessive limits on the bodily autonomy and reproductive rights of women who want to be surrogates for friends or family but don't meet the requirements. There is no logical reason why unmarried and childless women should not be surrogates, according to the authorities. In the absence of such justification, every physically and psychologically fit woman should make her own decision about whether or not to pursue a surrogacy arrangement.

Only gestational surrogacy is permitted under SRB 2019, which may have two repercussions for the surrogate mother. On the one hand, there's a lower possibility that the surrogate mother would form a link with the kid who is genetically distinct from her (possibly inspired by the Baby 'M' case, in which the surrogate mother was also the biological mother and refused to give the baby to the commissioning parents). Surrogate mothers' health, on the other hand, may suffer harsher and more serious consequences since the rejection rate of such embryos is substantially higher than that of biological mothers' embryos. As a result, a selective ban would be detrimental, particularly in the Indian context. As a result, one is forced to choose between two diametrically opposed options: a full prohibition or a permissive environment for all types of surrogacy, including commercial surrogacy (though in a regulated fashion). Even if it is illegal, a technology that meets people's needs will find consumers. To avoid surrogate mothers from being exploited, it looks reasonable to allow all types of surrogacy, but with rigorous regulations.

Assisted Reproductive Technology (Regulation) Bill 2021

The Bill aims to set up a National Assisted Reproductive Technology and Surrogacy Board under Section 15 of the Surrogacy Act. Provisions of the Surrogacy Act relating to the constitution of the board, terms of office, meetings, vacancies, disqualifications, temporary association of persons, authentication of instruments, and eligibility will apply mutatis mutandis in relation to ART.

Under the Bill, every ART clinic and bank must be registered under the National Registry of Banks and Clinics of India. The Registry is meant to act as a central database for all facilities providing ART services in India, with state governments appointing relevant authorities in their respective states to facilitate the registration process.

ART banks are the only bodies authorised to screen gamete donors, collect and store semen, and provide oocyte donors. Semen can only be obtained from males between the ages of 21 and 55, and oocytes may only be obtained from females between the ages of 23 and 35.

A child born using ART is deemed the biological child of the commissioning couple or individual and is entitled to the same rights and privileges as a natural child. The donor must relinquish all parental rights over children born from his or her gamete.

Critical Review

a)Inclusivity

The first point of contention is who has access to ART. The Bill enables ARTs to be used by a married heterosexual couple and a woman above the age of marriage. It prevents single males, straight couples in cohabitation, and LGBTQI persons and couples from receiving ARTs. This is in violation of Article 14 of the Constitution and the Puttaswamy right to privacy jurisprudence, in which the Supreme Court held that "the sanctity of marriage, the liberty of procreation, the choice of a family life, and the dignity of being" were aspects of privacy that affected all individuals regardless of their social status. In Navtej Johar, Justice Chandrachud urged the state to take concrete efforts to ensure that same-sex couples have equal protection. There is no restriction on foreign citizens accessing ARTs, unlike the SRB. Foreigners are allowed to use ART, but Indian nationals in romantic relationships are not. This is an absurd outcome that fails to represent the Constitution's genuine intent.

b)Grievance Redressal Procedure

The grievance redressal procedure has to be re-evaluated because the Bill does not allow the aggrieved party to contact the Court directly, which is counterproductive to assuring them access to justice. Instead, it only allows the National Board, the State Board, or officers authorized by the State Board to go to court.

Since Section 18 of the Bill makes no indication of who can file a complaint with the Registration Authority against a clinic or bank, further clarity is needed. This is especially crucial since the commissioning couple's concerns may not be addressed by the grievance cell under Section 21(f) if the complaint is considered internal to the clinic or bank. Apart from clinic/bank officials, the regulations should indicate who will be members of the grievance cell and that it should include acceptable outsiders/neutral parties. When concerns are not handled in the grievance cell, procedures should be defined, as well as the next steps to take and when the commissioning parties/donors/surrogates can go to the consumer court.

The ART clinic's Grievance Cell has been renamed Counselling, Grievance Redressal, and Mediation Cell, involving trained Medical Social Workers as counsellors and trained mediators with the goal of providing alternative dispute resolution mechanisms that can resolve issues locally and reduce litigation.

c) Incomprehensible Overlap

Although the Bill and the SRB both govern ARTs and surrogacy, there is a lot of overlap between the two. The Bills, on the other hand, do not work together. The Bill does not specify core ART processes; some of these are defined in the SRB but not in the Bill. The definitions of the commissioning terms "couple," "infertility," "ART clinics," and "banks" must be consistent throughout the Bills. Surrogacy is not available to single women, but ART is. The Bill establishes surrogacy boards under the SRB to serve as ART advisory bodies, which is a good thing. Both Bills, however, create various registration organisations, resulting in redundancy or, worse, a lack of regulation (e.g. surrogacy clinic is not required to report surrogacy to National Registry). Furthermore, the same infringing behaviours are punished differently under both Bills, and the SRB's penalties are harsher. Bail is available for offences under the Bill, but not under the SRB. Finally, under the Bill, records must be kept for ten years, but under the SRB, they must be kept for twenty-five years. The identical activities conducted by a surrogacy clinic and an ART clinic (which are most likely the same company) are regulated differently.

Both the Bills raise serious constitutional, ethical and regulatory concerns, affecting millions and thus need a serious review of any undesirable consequences that may accrue from them. The target of these laws are women who represent the most vulnerable stakeholders of the population. Hence, a careful review must be undertaken to ensure a progressive outcome.

The author is an Advocate on Record at the Supreme Court of India.Views are personal.

[1] State of Maharashtra v. Indian Hotel & Restaurants Assn., (2013) 8 SCC 519.