Surrogacy is the process wherein a woman bears a child for another individual or couple who, after birth, become the parent(s) of the child. The proposed law on surrogacy in India is The Surrogacy (Regulation) Bill, 2018 (“the Bill”). The Bill was passed in Lok Sabha, and is currently pending in the Rajya Sabha. Prior to the Bill, commercial surrogacy in India was a booming industry that raked in $400 million every year.
The Bill bans commercial surrogacy and severely shackles non-commercial, emotionally motivated surrogacy – as only married, infertile couples with no existing children are permitted to enter into surrogacy arrangements. At the very outset, it reflects a conflict between the economic interest surrogate mothers have, and the role of the State in protecting these vulnerable women. Most surrogate mothers depend on surrogacy as a source of income to sustain themselves and their families. However, the State argues that there is a need to mitigate the economic and social exploitations these women may be subject to. The Bill may be understood to be a culmination of the recommendations of the 228th Law Commission Report, which suggested allowing the continuance of only altruistic surrogacy. Women’s rights activists, and even doctors, have vehemently opposed the provisions of the Bill.
There is sufficient literature on how surrogacy is a reproductive right, and that the Bill infringes on this right of women. This article seeks to explore a lacuna in understanding commercial surrogacy by looking at it from a lens of profession and privacy. First, it argues that commercial surrogacy is an occupation under Article 19(1)(g) of the Constitution of India, and does not come within the ambit of reasonable restrictions on this right. Second, it argues that the Bill infringes on the right to privacy, of individuals undergoing surrogacy, guaranteed by Article 21.
Commercial Surrogacy’s protection under Article 19(1)(g)
It is argued that commercial surrogacy is protected by Article 19(1)(g) of the Indian Constitution. Article 19(1)(g) protects the freedom of citizens to “to practice any profession, or to carry on any occupation, trade or business.” However, the real test is whether a ban on commercial surrogacy is within the ambit of “reasonable restrictions” under Article 19(6).
It is argued that there were less intrusive measures that the government could have undertaken to meet the same end. Modern Dental College vs State Of MP, as well as Md. Faruk v. State of MP opined that a restriction under Article 19(6) cannot be reasonable if an alternative existed which would have been a less intrusive infraction of a persons’ rights under Article 19(1)(g). The Select Committee Report on the Bill, while giving reasons in favour of the ban, agrees with the 228th Law Commission report, which states that commercial surrogacy leads to economic exploitation of women. The Law Commission Report explicitly states that women in India are paid around $30,000 to be surrogate mothers, which is one-third of the cost compared to nations like the U.S and U.K. Further, there are also instances of non-payment, thus exploiting vulnerable women.
The central issue here is a problem-solution mismatch. If the government was concerned about the economic exploitation of surrogate mothers, the far less intrusive option would be to legislate on the conditions for commercial surrogacy. This is not to say that the State would take away contracting powers of the parties, rather, the State could create a framework within which contracts could be entered into – much like a minimum wage legislation. There are already hints of this in the Bill, like the mandatory provision of insurance for the surrogate mother mentioned in S. 4(iii)(a)(III). The government could additionally legislate on the minimum amount to be paid to surrogate mothers, and make non-payment of such an amount an offence instead of just a civil breach of contract.
It is also of value to note that State of Maharashtra v. Indian Hotel and Restaurants Association held that a State cannot satisfy its burden while making a restriction on an Article 19(1)(g) right if there is insufficient data to show harm. While the government claims that economic exploitation and extortion of women exists within commercial surrogacy, there is very little hard data on the sector. In fact, there is no reliable data even on the number of Assisted Reproductive Technology (ART) clinics in the country. While the lack of data does not preclude the exploitation of women, it does indicate that the State has not satisfied its burden prior to curbing the fundamental right.
Infringement of Right to Privacy
It is argued that asking couples to divulge information about their infertility is a violation of right to privacy under Article 21. It is not posited in law that a couple needs to conceive by themselves, even if they are biologically fit to do so. Yet, the Bill functions on such an assumption. The Bill outlines the exhaustive conditions which permit the procedure of surrogacy, one mandatory condition being proven infertility. There are two issues with this. First, the entry barrier of infertility itself. Second, the privacy concerns under Article 21.
The Bill treats parenthood as completely biological, with exceptions only for those who cannot conceive by themselves. This entry barrier by itself is unjustified because there is no legal requirement that a couple needs to conceive by themselves. Navtej Singh Johar v Union of India held that matters of sex, sexuality, and procreation are not only private choices, but questions of dignity. The Bill infringes on the dignity of individuals as it indirectly takes away their personal choices regarding sex and procreation, and directs them solely to biologically producing offsprings. In addition to that, the entry barrier is incredibly narrow, as only proven infertility can make you eligible for surrogacy. This precludes individuals with health issues that may not amount to infertility, but still pose a threat to the mother and the child. For instance, anemia, high blood pressure, diabetes, ovarian cysts, are all issues that can create medical complexities for the mother that can impact both her health and the pregnancy.
The second issue is that of privacy of individuals. Section 4(iii)(a)(I) outlines that certificates proving infertility need to be submitted to the District Medical Board (hereinafter Board) for verification. While the Bill explains the composition of the Board, it makes no mention of how and where this data will be processed. The Bill also precludes any information regarding the storage of this data. The storage limitation principle is crucial, as it states that the data collected must not be kept beyond the period of use and processing. There is no requirement to store data regarding infertility beyond the verification process, as this data is meant to serve as an entry barrier. Even the highly contested Aarogya Setu app recently notified that data would be permanently deleted after 180 days. This is reflective of the importance of storage limitation, which is unfortunately lacking in the Bill.
Details regarding health are personal and private. The State’s recognition of the same can also be seen by the classification of ‘Health Data’ as sensitive personal data under the Personal Data Protection Bill, 2019. While Article 21 does not provide an absolute right to privacy, it is argued that disclosing infertility to the State is one aspect of health that does not constitute a reasonable restriction on privacy. The Supreme Court has also explicitly held in R. Rajagopal vs State Of T.N that individuals have the right to safeguard the privacy of their families with regards to child-bearing and procreation. This view was also reiterated in Navtej Singh.
Most judgements regarding medical information have held that the restriction on privacy is valid when there is risk to public health, or to secure the health and freedom of others. Courts use this rationale in most judgements regarding HIV positive patients to show that collection of data and disclosure is a legitimate restriction, as the ‘State is obligated to take actions to improve public health’. Therefore, the current standard for restricting privacy in health matters involves information that poses risk, or curtails rights. However, infertility cannot come within the ambit of these restrictions as it poses no harm to either of the parties involved or to the general public. The State therefore, is unjustified in infringing on matters that have previously also been declared as requiring special protection from public eye.
Surrogacy laws need to accommodate for the vested economic interest that millions of women all across India have. The answer to questions of exploitation and abandonment is government regulation, not absolute restriction.