This post discusses the approach in the Lok Sabha from regulating commercial surrogacy to criminalizing it and how such transition is in conflict with the guaranteed rights.

The Lok Sabha has recently passed the Surrogacy (Regulation) Bill, 2016, primarily intended to prohibit commercial surrogacy, and additionally, constituting National and State level Surrogacy Board to regulate altruistic surrogacy. Section 35 of the Bill provides for a minimum jail term of 10 years for commission of activities enlisted under clauses (a) to (f) of the said provision, which includes advertising and undertaking commercial surrogacy.

The enactment is a resultant of a long-pending demand from the four-corners of the society to regulate the business of surrogacy that has seen various instances of physical and economic exploitation of the surrogate mother, who normally hails from lower income families. Noteworthy to refer is the 228th Report of the Law Commission of India, a suo moto attempt of the Commission, which had recommended to prohibit commercial surrogacy after acknowledging the complexities found in the law. Both, the Legislature and the Law Commission, have completely overlooked the growing size of the industry, which has been recorded to be of $2 billion per year by the Confederation of Indian Industry in a 2012 study. The statistics become significant, given the growing number of nations prohibiting commercial surrogacy, which might further expand the already expanding medical tourism in India.

However, we accept that a profitable economic side to an activity cannot justify its continued performance if it is vested with social vices. Non-forgettable are the two instances, widely aired by the supporters of the ban, which witnessed questions on the rights of the child born out of surrogacy and the exploitation of the surrogate mother owing to non-acceptance of the child by the commissioning parents or non-adequate payment for the services rendered. In one of the instances, Baby Manji Yamada v. Union of India, the delivery of the child was adversely delayed owing to a matrimonial dispute between a Japanese parent and administrative regulations regarding grant of visa; and in the other instance, an Australian couple abandoned one of the twins born as they already had a child of the same sex. Following these instances, India had banned foreigners from hiring a surrogate mother in 2015. In December 2018, after deliberation ranging to approx. 2 years, the Lok Sabha has extended this ban to all persons involved in commercial surrogacy, irrespective of their citizenship.

Multiple arguments have been presented against the ban such as the possibility of transportation of women outside India for the purposes of surrogacy and the loss of economic livelihood of a good number of women. Instead of discussing these probabilities, we wish to present a constitutional challenge emerging from Article 19(1)(g) of the Constitution on the blanket ban on commercial surrogacy.

Article 19(1)(g) ensures to all citizens a right to practice any profession or to carry on any occupation, trade or business. Being not an absolute right, Article 19(6) provides certain grounds on which the said right can be reasonably restricted. These include (i) restrictions in the interest of the general public; (ii) prescribing the professional or technical qualification for carrying on any profession; or (iii) nationalization of the business. To be a constitution-compliant law, the Surrogacy (Regulation) Bill, 2016 has to present itself in the ‘interest of the general public’, but it fails.      

The Supreme Court of India, in Chintaman Rao v. State of MP [AIR 1951 SC 118], has correctly confined the scope of rather generally worded restrictions of Article 19(6):

“The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interest of public. The word ‘reasonable’ implies intelligent care and deliberations, that is, the choice of the course which reason dictated. Legislature which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed under Art. 19(1)(g) and the social control permitted by clause (6) of Art. 19, it must be held wanting in that quality.”

Therefore, the standard for reasonableness of a restriction under Article 19(6) is a proper balance between the individual right of occupation and social control guided by reasons. Following the same logic, the Supreme Court had held that a total ban on dance performances in certain eating houses was far in excess of what is required and thus, unconstitutional. [State of Maharashtra v. Indian Hotel and Restaurant Association, AIR 2013 SC 2582]. In 2014, following the footsteps of the Hon’ble Supreme Court, the Karnataka High Court also struck down a similar provision.

Similar is the case with commercial surrogacy and the aforementioned cases provide enough guiding path. A choice to indulge in the surrogacy business is an individual choice. Indeed the government possesses the power to regulate the affairs of the business and is morally obliged to create an environment for its healthy conduct and development, but a blanket ban depicts its non-competency to protect multiple business avenues for its subject from the evil elements. A reasonable restriction, guided by reasons, in the present matter would have been an institutional arrangement regulating the surrogacy market. [For instance, see Assisted Reproduction Technologies (Regulation) Bill, 2010 and Surrogacy (Regulation) Bill, 2014] Criminalizing the practice completely negates the individual freedoms and fails to strike the mandatory balance required between individual freedom and social control.

We find evidences of similar approach in the United States where the practice of allowing or prohibiting commercial surrogacy is not constant across all the States of the United States. Jurists have argued that prohibiting commercial surrogacy limits the freedom of the women to use their reproductive agencies and right over their own bodies regarding the opportunities available and their consequences. [efn_note]Julie Shapiro, For a Feminist Considering Surrogacy, Is Compensation Really the Key Question?, 89 Wash. L. Rev. 1345 (2014).[/efn_note] They have treated surrogacy at par with any other labour activity and thus, argued that the Government shall offer protections and regulations to enhance the quality of consequences.[efn_note]Sonia Allan, The Surrogate in Commercial Surrogacy: Legal and Ethical Considerations, in Surrogacy, Law, and Human Rights 129 (Paula Gerber & Ketie O’Byrne, eds., 2015).[/efn_note]

In its recent judgment in State of Bihar v. Dr. Sachindra Narayan, the Supreme Court has reiterated the law on legitimate expectations and held, citing Union of India v. Hindustan Development Corporation, that:

The legitimacy of an expectation can be inferred only if it is founded on a sanction of law or custom or an established procedure followed in regular and natural sequence. … Such expectation should be justifiably legitimate and protectable. … legitimate expectation can at most be one of the grounds which may give rise to judicial review.

Article 19(1)(g) provides a forceful sanction of law which makes it imperative for the government to secure the avenues for business, regulate it and provide security to the stakeholders involved. It creates a legitimate expectation for the protection of their right to business in the minds of the surrogate, which must be honoured by the Government. Moreover, allowing altruistic surrogacy is a self-evident of the fact that ‘surrogacy’ per se as a practice is not considered as immoral in the society, obliging the Government to protect it.

Prohibiting commercial surrogacy also affects multiple rights of the intended parents. It is an established fact the guarantees under Article 21 of the Constitution and Universal Declaration of Human Rights envisages a right to procreation, and surrogacy ensures due fulfilment of this right. Couples, who are unable to procreate by themselves, including same sex couples and single parent, mostly prefer surrogacy and scholars have equated its denial with forced sterilization.[efn_note]Peter Nicholas, Straddling the Columbia: A Constitutional Law Professor’s Musings on Circumventing Washington State’s Commercial Prohibition on Compensated Surrogacy, 89 Wash L. Rev. 1235 (2014).[/efn_note] We argue that such an understanding of right to procreation imbibes a right to choose the surrogate mother, and restricting such choice to near relatives becomes an unreasonable restriction on Article 21. Moreover, the Puttaswamy Judgment has held that the right to privacy is implicit in Article 21 and it safeguards the privacy of one’s reproductive decisions, unless one forces a woman for surrogacy. Hence, we argue that the Bill is laden with constitutional infirmities.    

Concluding Remarks

The foregoing discusses the transition in the approach in the Lok Sabha from regulating commercial surrogacy to criminalizing it and how such transition is in conflict with the guaranteed rights. Before resting, we wish to urge the incumbent to unfollow its precedents of creating crime, or making the existing crimes more stringent, as a solution to every social problem. For instances, the Criminal Laws (Amendment) Act, 2018 punishes a rape of the minor below 12 years of age with death penalty. Post which, the Lok Sabha passed the Muslim Protection (Protection of Rights on Marriage) Bill, 2017 criminalizing triple talaq. And now is the turn of commercial surrogacy. In near future, we are expecting the Protection of Children from Sexual Offences Act to be amended to provide more stringent provisions to check child sexual abuse. we believe that the commission of a ‘wrong’ is guided by the infected character of an individual and not by the fact that the legislature has provided an easy punishment for the ‘crime’. It is the high time to work on the socialization process of individuals in society and transformation in one’s attitude.

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