India is currently facing a declining fertility rate and a changing social structure, with late marriages and single parenthood becoming more common. In light of this, does the proposed ART Bill and Surrogacy Bill restrict or enhance the reproductive choices available to Indian citizens?
Assisted Reproductive Technology (ART), as commonly understood, comprises procedures such as in-vitro fertilisation (IVF), intra-uterine insemination (IUI), oocyte and sperm donation, cryopreservation and includes surrogacy as well. Social stigma of being childless and lengthy adoption processes have increased the demand for ART in India. It is thus not surprising that the ART industry is expected to grow by a compounded annual growth rate of 10%.
No legislation currently regulates ART in India. In 2002, the Indian Council of Medical Research (ICMR) laid out guidelines for surrogacy. Further, in 2005, the ICMR issued the 'National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India' (ICMR Guidelines), which inter alia, prescribed the conditions that ART clinics need to comply with. Both the above initiatives did not have any legislative backing. Thereafter, the Assisted Reproductive Technology Bill (ART Bill) was first proposed in 2008, with the final version being brought out in 2017. The Surrogacy (Regulation) Bill, 2016 (Surrogacy Bill) was passed by the Lok Sabha in December, 2018, and is currently pending Rajya Sabha approval.
Some of the provisions of the ART Bill and the Surrogacy Bill merit scrutiny. For instance, only an 'infertile couple' is eligible to avail of ART under the ART Bill with the term 'couple' being narrowly defined to mean only a heterosexual relationship of a marriage or a live–in relationship. A man above 50 years and a woman above 45 years are not eligible for ART, thus preventing older persons (who might be most in need of it) from accessing it.
The Surrogacy Bill bans commercial surrogacy and prescribes only altruistic surrogacy. Similar to the ART Bill, only an infertile Indian couple who have been married for at least five years and having no surviving child (with some exceptions) are eligible to altruistic surrogacy. It is still not certain as to why the existing ICMR Guidelines have been completely disregarded in the drafting of these bills. For instance, the ICMR Guidelines permitted single women to benefit from ART and also provided for 'minimum physical requirement for ART clinics', 'essential qualifications of ART teams', and 'ART procedures', which are missing from both the ART Bill as well as the Surrogacy Bill.
Passage of these bills in the Parliament is not likely to be smooth. Already the 102nd Parliamentary Standing Committee Report on Surrogacy has stated that the Surrogacy Bill is contrary to the Constitution of India. The jury is still out on the question of whether these legislations will stand the test of the Constitution of India. In Suchita Srivastava v. Chandigarh Administration1, the Supreme Court equated the right to make a choice in relation to reproduction with personal liberty under Article 21 and clarified that such right includes within it the 'privacy, dignity and bodily integrity' of the woman and further stated that 'taken to its logical conclusion, reproductive rights includes a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children'.
Further, in Devika Biswas v. Union of India2, the Supreme Court recognised the right to reproduction as an important component of the 'right to life' under Article 21. Thus, restricting ART and surrogacy only to heterosexual relationships within a certain age group and denying reproductive choices to LGBT, single persons and older couples, would be a violation of Article 21. These restrictions also agitate against the concept of right to equality under Article 14.
Other attendant questions merit consideration as well. First is the right to privacy that has been recognised as a facet of right to life under Article 21 in the Puttaswamy judgment3. For instance, the Surrogacy Bill require couples to procure a 'certificate of proven infertility' from the district medical board. As observed in B.K. Parthasarthi v. Government of A.P.4, the right to make a decision about reproduction is essentially a very personal decision and the intrusion of the State into such a decision-making process has to be scrutinised. It is thus submitted that requiring couples or persons to procure such certificates is a gross violation of their right to privacy.
While controversial, it is also important to spare a thought for the surrogate women who potentially stand to lose their income. While no one advocates forced pregnancy, in the case of women who make an informed choice and consent to be surrogates in lieu of monetary compensation, would not a complete ban on commercial surrogacy deprive a person of a form of livelihood? In Consumer Education and Research center and Ors. v. Union of India5, the Supreme Court stated that the expression ‘life’ assured in Article 21 of the Constitution has a much wider meaning and includes right to livelihood. This principle was recognised in Olga Tellis v. Bombay Municipal Corporation6 as well. At a time when women are still denied access to education and jobs, should monetary options for women be snatched away statutorily as well?
The way forward on this issue requires sensitive handling. The Supreme Court in Murlidhar Aggarwal & Anr. v. State of U.P.7 had remarked that public policy does not remain static in any given community and may vary from generation to generation and even in the same generation. Without abrogating the right to legislate on issues of public welfare and policy such as that of the rights of a surrogate mother or that of the child, it is important to ask whether the State has any business in regulating the reproductive choices of society. The Government should enact laws that are compliant with fundamental rights of citizens and reflect the changing social mores.
1 (2009) 9 SCC 1.
2 (2016) 10 SCC 726.
3 (2017) 10 SCC 1.
4 2000 (1) ALD 199.
5 (1995) 3 SCC 42.
6 AIR 1986 SC 180.
7 (1974) 2 SCC 472.
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